Latrobe v. American Colonization Society

Pattison, J., delivered the opinion of the Court, This, is the fourth time this, case has been before this Court. It was first, before it in the American Colonization Society v. Soulsby, 129 Md. 605 . ⁴⁰⁸ In that case the Court held, in accordance with the contention of the petitioners, the heirs at law and devisees of Caroline Donovan, that the declaration of trust executed by her to the trustees therein named, violated the rule against perpetuities in that it attempted to create an active trust which was required to continue beyond the period limited by the rule; but the petitioners were denied the right 1» recover the property described in said deed upon the ground of its invalidity resulting from such cause, because of the laches of the petitioners and the adversary possession of tire trustees for a period of more than twenty years prior to the institution of the proceedings. The case was again before us in Soulsby v. American Colonization Society, 131 Md. 296 , on appeal from an order sustaining a demurrer to an amended petition filed by said petitioners. The ruling of the lower Court thereon was affirmed.

The case next came to this Court on four appeals in one record, in the American Colonization Cases, 132 Md. 532 . Two of these were appeals by the State of Maryland; one. from an order of Court sustaining a demurrer to a petition filed on behalf of the State by which it was sought to have the property mentioned in the first appeal declared escheated to the State as.the result of the decision in that case; and the other from the action of the Court in overruling the exception on behalf of the- State to the auditor’s account by which a balance of money in the hands of the trustees was audited to be paid to the American Colonization Society. This Court was of the opinion and so. decided that the property did not escheat to the State and consequently held that tire State had no standing enabling it to object to the distribution of the money in the hands of the trustees. The order in the first of these cases was affirmed, and the appeal dismissed in the second.

One of these appeals was taken by the American Colonization Society from the ruling of the Court in sustaining a demurrer to and in dismissing its petition in which it was claimed as the result of the decisions in. the first appeal ⁴⁰⁹ (American Colonization Society v. Soulsby, 129 Md. 605 ), that “The trustees named by Mrs. Donovan were its agents, that the property belonged to it, or at any rate that there was only a bare legal title in tbe trustees, which the society at its will and pleasure is entitled to have transferred to it, working a merger of the legal and beneficial title; that the trust upon which the property was held involved no active duties to be performed on the part of tbe trustees, and for that reason, as well, the trustees should be required to transfer to the society the legal title held hy them.” American Colonization Society’s case, supra. This Court, speaking through Judgjs Stocicbridgs, after discussing the contention of the petitioners, said: “The order of the Circuit Court sustaining the demurrer to the petition of American Colonization Society, to require a transfer to it of the legal title and dismissing that petition, will he affirmed.” The last of these appeals was from the action of the Court in overruling the exceptions of the Colonization Society to certain items appearing in the auditor’s account. Important among them were the commissions allowed the trustees* and the fees allowed the attorneys fo*r the trustees, and the amount audited to the Aineriean Colonization Society at the suggestion of the counsel for the trustees, to* wit.: the sum of $2,-074.26. This Court after fully discussing and considering these items affirmed the action of the* Court in allowing them.

The case now comes before us on two appeals in one record. The second of these (Appeal No. 29) is from an order sustaining a demurrer to a petition filed by Charles M. T. Soulsby et al. v. Ferdinand C. Latrobe and James W. Harvey, Trustees, in which the Court was asked to pass an order “declaring that the provisions of the declaration of trust, of June 22nd, 1886, are entirely at an end, and the property therein mentioned is now disposed of hy the residuary clause in the will of Caroline Donovan, in favor of her nine nephews and nieces therein mentioned, and that the Trustees may he directed to convey whatever interest they may now have in ⁴¹⁰ said property to your petitioners, the representatives of said residuary devisees.” The petitioners are the same persons who filed the amended petition in American Colonization Society v. Soulsby, 129 Md. 605 , the only change therein being that Robert H. Soulsby, Amelia Soulsby, Foster and Lucy S’oulsby Mitchell, the children and residuary devisees of Robert Soulsby, one of the original petitioners who has died since the decision in that case are substituted for him. The petition alleges that Caroline Donovan made the deed of trust above referred to, “by implication reserving to herself as the creator of the trust all right and title in said property except as conveyed for the purposes therein stated,” and that “all right, title and estate which remained in her, subject to the trust created by said deed, were devised by her under the residuary clause of her will to her nine nephews and nieces and the petitioners now represent and stand in all respects in the place of said nine nephews and nieces, the residuary devisees of Caroline Donovan.” The petition further alleges that the case of the American Colonization Society v. Soulsby, 129 Md. 605 , “was almost entirely presented from the standpoint of the nephews and nieces of Caroline Donovan being her heirs at law, and the briefs in the case and opinion of tire Court almost entirely confined themselves to the position of the nephews and nieces of Caroline Donovan being her heirs at law and there was no other consideration given to the fact that said nephews and nieces were the residuary devisees of Caroline Donovan under her will and now stand in exactly .the same position as Caroline Donovan wordd have stood had she been living.” It further alleges that the Court in that case held the deed void as a perpetuity and that the opinion contained expressions “which to a certain extent, indicated that the American Colonization 'Society was nevertheless still the cestui que trust to whom the trustees should account, and it was to a certain extent indicated that the American Colonization Society, the cestui que trust, held adversely to the Donovan heirs.” That ⁴¹¹ in tliei r opinion the claims of the society were by the opinion of the Court “entirely put an end to” and that from such decision it is “perfectly clear” that the society “has no rights whatever, and is, therefore, an utter stranger in this case, having no claims, whatever on the property of Caroline Donovan,” and that “the receipt of income by the American -Colonization Society improperly (as it had no rights) cannot be considered as an adverse holding to the residuary devisees of Caroline Donovan.” That the only trust which was being administered in this Court was the trust created by Caroline Donovan by deed of trust, of June 22nd, 1886, and as said trust has been declared by the Court of Appeals of Maryland to be void, and as the Court of Appeals has further decided that neither the American Colonization Society nor the State of Maryland has any rights in said property,” “there is nothing further to be done in this case except for this Court to direct the trustees to convey the property which had been conveyed in trust on June 22nd, 1886, in accord with the disr position of the same made by Caroline Donovan, in the residuary clause of her said will.” It further alleges that the legal effect of the deed of trust, of June 22nd, 1886, only became definite on January 10th, 1911, when the case in 129th Maryland, p,. 605, was, decided, that at that point, of time the exact rights of Caroline Dono van and her residuary devisees became clear, and the trust which had been attempted to be created by Caroline Donovan was at that time put an end to, and the rights of Caroline Donovan and her residuary devisees became absolute; * * * that if Caroline Donovan were now alive, the trustees so looted by her .for carrying out a limited, specific trust could not, upon a declaration by the Court of Appeals that said trust was void, take the position that Caroline, Donovan had lost her rights in the property, and your petitioners submit, that Caroline Donovan’s residuary devisees stand in exactly the same position which Caroline Donovan herself would have occupied were she now alive. That in asking that the trustees should now convey to them all the property mentioned in the ⁴¹² deed of trust, of June 22nd, 1886, that they are the only persons who can possibly have a beneficial interest in the property, unless it be held that the trustees who have only acted in a representative capacity at all times, should be declared to have a beneficial interest for themselves.

The questions presented by this petition have in the main been answered by this Court in its opinions heretofore filed in the former appeals. In the first appeal we held that the deed was void as it violated the rule against perpetuities', but at the same time held that the petitioners were barred from recovery because of the adversary possession of the trust property for a period of more than twenty years prior to the institution of the proceedings. The authority for so holding is found in the case of Needles v. Martin, 33 Md. 609 , and other oases therein cited. The facts of that case as stated in the syllabus, were, that “A testator, by his will, executed on the 5th of Eebruary, 1843, bequeathed certain leasehold property and a small ground rent to his wife during her life, and after her death to certain named persons, or to the survivors of them at the time of her death, and to their heirs and assigns.

He also bequeathed to them certain stock of the City of Baltimore, together with all the rest and residue of