Loats Female Orphan Asylum v. Essom

Henderson, J., delivered the opinion of the Court. This appeal is from a decree declaring that the real estate conveyed in 1883, to the Loats Female Orphan Asylum of Frederick City, is now vested in the heirs at law of John Loats, deceased, named in the decree and in the proportions, therein set forth. The proceeding for a declaratory decree was instituted to permit the appellant corporation to sell and convey a good and marketable title to the real estate in question, free and clear of the claims of the heirs or devisees,, known or unknown, of John Loats and Louis Loats, and praying an order of publication against unknown heirs. Some 44-of the heirs appeared and answered the bill.

After appeal to this Court, a motion to remand was filed on behalf of some ¹⁵ 20 other non-resident persons, claiming to be heirs of John Loats, alleging that they had not theretofore had notice or knowledge of the proceeding, and desiring to prove their descent and share in the distribution. We deferred ruling on the motion at that time, and in the view we take of the case we think the motion must be denied. The court below had jurisdiction of the subject matter and the then unknown heirs had due notice by virtue of the publication. If we assume that the motion might properly have been granted, or that the rights of these persons to intervene and claim their shares might have been preserved for future determination, it would be idle to so order when our holding on the merits is that none of the heirs are entitled to the property in question.

On November 21, 1876, John Loats executed a will in which he devised the real estate in question to his niece, Annie Josephine Sifford, for her life or until she should marry. By item XVIII, further disposition was made of the property upon the happening of either of those events. The provision is both lengthy and complex. The first clause, in the nature of a preamble, recites: [“Whereas I am desirous of organizing and founding a suitable and proper Asylum for destitute and deserving female orphan children who have been thrown helpless and unfriended on the world, and who by the agency and through the assistance of such an Institution as I wish to establish, may be saved from want and protected from the snares of vice, and may be properly taught, educated and instructed and morally trained; and whereas I am desirous that the said Institution and the benefit I design it to confer shall be lasting and permanent; * * *.”] There follows a “request” that certain named persons, and their survivors, “within twenty years after my death” form a corporation to be styled the “Loats Female Orphan Asylum of Frederick City,” with “full power to carry out the benevolent objects which I have in view and with power to have and to hold and by grant, devise or bequest to acquire and receive any real and personal property * * There follow specifications as to the duties of the directors, the character and qualifications of the girls to be admitted, and the mem ¹⁶ bership of the Board of Directors, which need not be quoted in detail.

The will then set out three alternative devises in this language: “To carry out and give effect to these intentions, (1) I will devise and give, after the death of the said Annie * * * or upon her marriage whichever shall first happen, unto the said Loats Female Orphan Asylum on its becoming incorporated within the time hereinbefore prescribed, the said real estate and property hereinbefore * * * devised and given to the said Annie * * * for the term of her natural life or until she should marry, to have and to hold the same in fee simple for the objects hereinbefore designated, using the said house for the Asylum and the said farm to support and maintain the same. (2) Should, however, there be any legal impediment (arising from the non incorporation of said Asylum at the time of my death or afterwards, or from any other cause whatever) preventing the said real estate and property * * * from vesting in said Asylum at the time the said real estate and property are declared to vest therein; then I will, give and devise the said real estate and property to the said Rev. Dr. George Diehl, Charles E. Trail, William S. Miller, John C. Hardt, Louis M. Nixdorff, Samuel Appold, and Mr. [Charles W.] Humerickhouse [being the same persons requested to form the corporation] and the survivor of them in trust, however, to hold and manage the same and to invest the yearly incomes arising therefrom until an act of incorporation or a charter shall, within twenty years after the time of my death, be procured * * *; and then upon further trust * * * to convey the said real estate and property to the said Asylum in fee simple for the purposes hereinbefore specified. And I do hereby declare it to be my will and intention that the said real estate and property * * * should be at all events applied to the uses and purposes above set forth, and that it is my desire that All Courts of Law and equity will so construe this my said will as to have the said estate and property appropriated to the above purposes and uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations or any other persons, should heir, inherit, possess or enjoy the said real estate and property ¹⁷ except in the manner and for the uses above herein specified. (3) Should the devise and gift to the said Asylum fail to take effect from any cause, and should the said devise and gift to the said trustees herein named or their successors fail to vest from any cause notwithstanding the liberal spirit of construction which I have invoked to sustain the said devise and gift, then, that there may be no intestacy, I give and devise said real estate and property after the expiration of twenty years from the time of the death of said Annie * * * or from and after the expiration of twenty years from the time of her marriage, unto such children of my brother Louis Loats as may be living at that time and if none of his children be then living to the descendants of such of them as have or shall have survived the said Louis, in fee simple.” (Numerals in parentheses supplied.) John Loats died on March 24, 1879, and his will was probated on April 10, 1879.

On July 13, 1881, Annie Sifford married. On July 25, 1881, the Asylum was incorporated with the powers and for the purposes stated in the will, and began to operate the home. On September 5, 1883, the “trustees” named in the second alternative devise executed, and later recorded, a deed of the real estate to the corporation. For some years the Asylum admitted only “orphan” girls, in the strict sense of the word, but about twenty-five years ago it began to also admit girls from “broken homes.” By June, 1955, it became apparent that the continued operation of the Asylum was impractical, for various reasons, and the Asylum was dosed in July, 1956.

The present suit was filed on October 28, 1957, to facilitate a sale of the property. The appellant contends: (1) The alternate devises to the corporation were void and a right of entry accrued either to the heirs of the testator, or to the descendants of Louis under the third alternate devise, upon the termination of Annie’s estate. But it claims title by adverse possession, free and clear of any conditions, from the time of the void conveyance to it after its incorporation. (2) If the devises to it were valid, but the estate was conditioned upon compliance with the terms of the will, the condition was broken more than 25 years before the present suit and adverse possession ran from ¹⁸ that time.

(3) If the devises were valid, the conditions stated in the will did not make the fee determinable, either by reverter or gift over. (4) In any event, there was no showing that the appellant proposed such a radical departure from the conditions stated in the will as to call for a forfeiture. The appellees contend: (1) The appellant is estopped to assert the invalidity of the devises under which it claimed title, and to assert title by adverse possession. (2) For the same reason it cannot assert title by adverse possession upon condition broken.

(3) The corporation took title under valid executory devises, but subject to a condition subsequent. Upon breach of the condition, there was a reverter to the testator’s heirs. (4) The closing of the Asylum vested title in the heirs of the testator by operation of law. It is not disputed that the three devises are in the alterative.

The first was to the corporation directly, the second to it by conveyance from the trustees, only if the first devise was invalid, and the third to the descendants of Louis, only if the first and second devises failed, and only to prevent an intestacy. A primary question is presented as to the nature and validity of the devises to the Asylum. It has been held in a long line of cases in this State, beginning with Dashiell v. Attorney General, 5 Harris & J. 392; 6 Harris & J. 1, that a devise for charitable uses cannot be sustained or enforced because of the indefiniteness of the beneficiaries, whether the devise is directly to the indefinite objects, or to trustees for their benefit. This holding was based upon the view that the English Statute, 43 Eliz., Ch. 4, respecting charitable uses, was never adopted in Maryland, and that courts of chancery possessed no powers, respecting such uses, independently of that statute.

Cf. Dumfries v. Abercrombie, 46 Md. 172 . As pointed out by Judge Markell in Fletcher v. Safe Deposit & Trust Co., 193 Md. 400, 416 , this Court followed the Supreme Court’s view, expressed in Baptist Association v. Hart’s Ex’rs, 17 U. S. 1 (4 Wheat.), that charitable trusts originated under the Statute of Elizabeth. The historical error was corrected by the Supreme Court in Vidal, et al. v. Girard’s Executors, 43 U. S. 127 (2 How.) but this Court persisted in it. ¹⁹ The charitable trust statute, Code (1957), Art. 16, sec. 195 (Acts 1931, ch. 453) and the cy pres statute, Code (1957), Art. 16, sec. 196 (Acts 1945, ch. 727) have been said to be not applicable retroactively.

Fletcher v. Safe Deposit & Trust Co., supra (p. 410). The will in the instant case became effective at the testator’s death in 1879. It is also well settled that a devise in praesenti to a corporation not in existence at the time the will takes effect is void because there is no devisee in being capable of taking it, and the estate created must vest at that time or not at all. State, Use of M. E. Church v. Warren, 28 Md. 338, 354 ; Yingling v. Miller, 77 Md. 104, 108.

By chapter 249, Acts of 1888, the legislature added sec. 305A to Article 93, designed to partially remedy this situation, by providing that a devise to a corporation directed to be formed would be valid and enforceable in equity, if the corporation was formed within one year from the probate of the will. By chapter 335, Acts of 1924, the time for formation was extended to one year after the termination of an intervening life estate. Code (1957), Art.