Levering v. Gosnell

Pearce, J., delivered the opinion of the Court. This is an appeal by the Safe Deposit and Trust Company of Baltimore, trustee, and others, from an order of Circuit Court No. 2 of Baltimore City, sustaining the exceptions of Henry T. Oudesluys to the ratification of the sale of a ground rent made to him by the Safe Deposit and Trust Coompany of Baltimore, trustee, which will be designated herein as The Trust Company. The Trust Company was appointed such trustee by a decree of Circuit Court No. 2 of Baltimore City dated November 30th, 1894, and passed in a cause wherein Adam Demnead was plaintiff, and Frank Gosnell and others were defendants, the proceeding being ⁵⁸⁴ instituted for a partition of the estate of Mrs. Mary E. Den-mead of Baltimore, then lately deceased, and sole question involved is whether or not the Circuit Court had the power and jurisdiction to incorporate in the said decree for partition of said estate, the provision which was incorporated therein authorizing and directing the said Trust Company upon certan contingencies named to sell from time to time one or more lots constituting part of said estate, for the purpose of equalizing the partitions made by said decree. It will be necessary to state the facts at some length in order to understand the situation at this time.

Mrs. Den-mead died January 26th, 1894, leaving a will by which she disposed of a large amount of property both real and personal. By the first clause of her will she gave to each of her four sisters four hundred dollars per annum during their respective lives, and directed that such portion of her estate as should be necessary to yield a clear income of sixteen hundred dollars per annum to be set aside and held in trust for that purpose, and that upon the death of each one of said sisters, one-fourth part of said property so set aside should become and pass as a part of the rest and residue of her estate. The second and third clauses relate only to bequests of money and chattels which need not be considered. By the fourth clause she devised and bequeathed all the rest and residue of her property real, personal and mixed (with the exception of a certain lot and the stable thereon) as follows: “One equal fourth part thereof in trust for the use and benefit of each of my daughters, Ella Levering, wife of Robert Levering, and Mary Denmead Gosnell, wife of Frank Gosnell, and one equal fourth part thereof in trust for the use and benefit of my son Adam Denmead, for and during the full term of their natural lives, respectively.

And I empower my said children respectively, with the consent and approbation evidenced in writing, of the respective trustees who may be appointed to execute these trusts, or their successors, to sell and ⁵⁸⁵ dispose of the corpus of my property in which they respectively have a life estate hereunder, or any part thereof, and convey the same and give a good and perfect title thereto by their respective deed or deeds duly executed, said trustees respectively uniting therein, to the purchaser or purchasers thereof, and the proceeds of such sale or sales to invest in other property or estate, as my said children, respectively, with the consent and approbation aforesaid, may deem expedient and proper, and with full power to my said children, respectively, likewise with the consent and approbation aforesaid, to change such reinvestment and new investment from time to time again to make as they respectively may think fit and direct. “And from and immediately after the death of my said children, respectively, then as to the corpus of my property in which they respectively have a life estate hereunder (in whatever form it may be at that period), in trust for such person or persons, uses, objects, trusts and purposes, as they shall by their respective last will and testament direct, limit and appoint; and for want of such directions, limitations and appointments, then in trust for the use and behoof of such person or persons as would by the now existing laws of the State of Maryland be his, her or their heir or heirs respectively, free from all trusts hereunder. “The remaining one-fourth part of said rest and residue, including the said lot and stable on Morton street or alley, I give, devise and bequeath in trust as follows: “One equal half part thereof to each of my grandchildren, Talbott Denmead and Helen Denmead, children of my deceased son Talbott, for and during their natural lives respectively, and from and immediately after the death of my said grandchildren, then to their children respectively living at the time of their death. Should, however, either the said Talbott or the said Helen die without issue living at the time of his or her death, then with remainder to the survivor of them, but subject to the same trust, and with like limitations as are herein declared respecting the portion originally passing to said survivor hereunder. “And in the event of both of my said grandchildren dying without issue living at the time of their death, then I will and ⁵⁸⁶ direct that the whole of my estate in this clause mentioned shall pass to my said daughters Ella and Mary and my son Adam, under the fourth clause of this my will.” Mrs. Morrow, one of the four sisters named as an annuitant in the first clause of the will, died during Mrs. Den-mead’s life. Upon Mrs. Denmead’s death the proceeding already mentioned was instituted to procure a partition of the rest and residue of her estate among the parties entitled according to their respective interests therein, the bill averring “that after setting aside the said lot and stable thereon to be held, subject to the provisions of the fifth clause of the will, and after setting aside such portion of the estate of the testatrix as may be necessary to carry out the trusts declared in the first clause of the will, your orator charges and avers that the rest and residue of the property and estate of said testatrix is susceptible of partition amongst the parties entitled. All persons in being having any interest in the estate were made parties to this proceeding, but it appears from the record that since the date of the decree for partition, November 30th, 1894, there have been bom two grandchildren of Ella Levering, one of the life tenants under the will, viz: Mary Denmead Ruffin and Henrietta Harrison Ruffin', who might have a contingent interest in that portion of the estate in which Ella Levering has a life estate.

The interlocutory decree for partition directed that there be a partition “of all the property, real and personal, whereof Mary E. Denmead died, seized and possessed, and which is particularly described in these proceedings.” The final decree for partition ratified and confirmed the commissioners return and by that decree The Safe Deposit and Trust Company of Baltimore was appointed as trustee to hold in severalty all the real estate described in the commissioners’ return as Division A, so that the three named surviving sisters of Mrs. Denmead should each receive said respective annuities o.f four hundred dollars during their ⁵⁸⁷ respective lives as provided by said will; and said decree further provided “that upon the death of each one of said annuities the said Safe Deposit and Trust Company of Baltimore, trustee as aforesaid, shall without compensation, partition and divide among those entitled thereto in remainder as aforesaid, such equal part or portion of the property or estate then constituting said Division A as may be held to provide for the payment of the annuity of the person so dying, and for the purpose of equalizing said divisions or partitionsthe said Safe Deposit and Trust Company of Baltimore City, trustee, is hereby further authorized, empowered and directed from time to time, but without compensation, to make public or private sales for cash of such one or more of saicl lots or parcels of ground, as may be necessary to that end, and to execute, acknowledge and deliver all necessary deeds and conveyances as may be required to carry out the foregoing provisions of this decree.” The final decree further appointed trustees to hold the property described in the other divisions in trust as prescribed in said will as follows: The Safe Deposit and Trust Company of Baltimore to hold Division B in severalty in trust for Ella Levering for her life with remainders over: Adam Denmead to hold in severalty Division 0 in trust for Adam Denmead for his life with remainders over: Erank Gosnell to hold in severalty Division D in trust for Mary Denmead Gosnell for her life with remainders over: Carrie Denmead to- hold in severalty Division B in trust for Talbott Denmead for his life with remainders over: Carrie Denmead to hold in severalty Division B for Helen B. Denmead for her life with remainders over. Division A consists of 23 ground rents in the City of Baltimore. Mrs. Taylor, one of the three sisters of Mrs. Denmead, the annuitants under her will, died August 10th, 1910, and thereupon the Safe Deposit and Trust Company of Balti ⁵⁸⁸ more, in pursuance of the direction of said decree for petition, and for the purpose of partitioning and dividing among those entitled thereto in remainder, the equal part of the property or estate their constituting Division A, held to provide the annuity of Mrs. Taylor, made a private sale of one of said twenty-three ground rents of sixty-three dollars per annum to Henry T. Oudesluys for the sum of $1,100.00, and reported said sale for ratification to the Circuit Court No. 2 of- Baltimore City. ' The purchaser excepted to the ratification of this sale, alleging that the trustee could not give him a good and marketable title to said ground rent; (1) Because “it is impossible at the present time to ascertain who are or may be the heirs and children of said life tenants, who at the time of their respective deaths would be entitled to the estate in remainder, and because the only method by which the interests of such unknown, and perhaps unborn, persons may be sold is by proceedings under section 213 of Act