Maught v. Getzendanner

Miller, J., delivered the opinion of the Court. The decree pro forma, from which this appeal is taken, •annuls the residuary clause, in the will of George Richards, In this will the testator, after giving a large number of pecuniary legacies to his relatives and next of kin, gives the sum of §10 to the Reverend II. G. Bowers, and immediately following this last legacy is the clause in ■question, which reads as follows: “ I give and bequeath and devise unto the Reverend H. G. Bowers, of Jefferson, Maryland, all the rest and residue of my estate, and desire him to use and appropriate the same for such religious and charitable purposes and ob ⁵³² jects, and in such sums and in such manner as will, in his judgment, best promote the cause of Christ.” The controversy is between the heirs-at-law and next of ldn of the testator on the one side, and the Rev. Mr. Bowers on the other. The former contend that a trust was created by this clause of the will, and that such a trust is void, and therefore the property descends to them, while the latter insists that no trust is created, and that he takes the property in his own right, or if there be a trust, that it is valid and effective.

If there had been no decisions of the 'Courts upon the subject, and this provision could be carried out in accordance with the intention of the testator, there would be very little difficulty in the case. He did not mean that this property should go to his heirs-at-law. and next of bin, for if he did, he would not- have inserted this clause in his will. Neither did he intend that'Mr. Bowers, a stranger tollina in blood, should take the property for his own individual benefit. He gave him a legacy of $10, and this is manifestly all the personal benefit he intended to bestow upon him.

His intention, undoubtedly, was that this residue of his estate should be devoted to the “cause of Christ,” and in order to carry this into effect-, he selected his friend, the Rev. Mr. Bowers, as his disbursing agent or trustee. He gives to this agent the discretion to select the religious and charitable purposes upon which his bounty was to be bestowed, and the amount to be-allotted to each, but gives .him no discretion so to distribute it or not, as he pleased. He says to him in effect: “ I, give you this property, not for your own benefit, but to use and appropriate it to the cause of Christ, leaving it to you to select what religious and charitable purposes and objects shall be the recipients of my bounty, as well as the sums which each shall receive, and you must make such selection and distribution among the objects selected as will, in ⁵³³ your judgment, best promote that cause.” This, as it appears to us, was the plain intention of the testator, and is the plain reading of this clause. It is true he does not use the terms “ in trust,” but the language “ and I desire him to use and appropriate the same” for the purpose and in the manner specified, is just as effective, so far as his intention is concerned, to create a trust as if the proper technical terms had been employed.

But by the decisions of the Courts it has become ’the settled law of this State that such a trust is void, because it is too vague and indefinite to be carried into effect. The uniform course of our decisions is that a trust to be upheld must be of such a nature that the cestuis que trust are defined and capable of enforcing its execution by proceedings in a Court of Chancery. This doctrine has been laid down in a series of adjudications from Dashiell vs. The Attorney-General in 5 H. & J. 292 ,to Isaac, et al. vs. Emory, et al., in 64 Md., 333 . The most prominent of the intermediate cases are Wilderman vs. Mayor, &c., of Baltimore, 8 Md., 555 ; Needles, et al. vs. Martin, 33 Md,, 609, and Church Extension, &c. vs. Smith, 56 Md., 397 .

It requires no argument to show that the trust in this will falls within the rule established by these decisions, and must, therefore, be held to be void. The consequence of this is that if we are right in holding this to be a trust the property goes to the heirs-at-law and next of kin. But it has been strenuously argued that where precatory words are used, the very fact that the objects or parties to be benefited, or to be selected for that purpose, are uncertain, is conclusive that no trust is created, and in such case the donee takes the property absolutely. In other words, the contention is that no trust arises by force of any precatory words, unless there is certainty in the object as well as in the subject.

This doctrine no doubt receives support from statements contained in some of the text books, and is apparently sustained by some of the ⁵³⁴ decisions, but we do not find that the authorities have laid it down as an inflexible rule applicable to all cases,, and wholly irrespective of the intention of the testator or donor to create a trust. Lord Eldon in the noted case of Morice vs. the Bishop of Durham, 10 Ves., 522, went no further than to say “ Wherever the subject to be administered as trust property, and the objects for whose benefit it is to be administered, are to be found in a will not expressly creating a trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects,, are always used by the Courts as evidence that the mind of the testator was not to create a trust; and the difficulty that would be imposed upon the Court to say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended.” On the other hand, Lord Chancellor Tkuro, in the case of Briggs vs. Penny, 3 McN. & G., 546, decided in 1851,. deduces the principles from the.then state of the authorities thus : “I conceive the rule of construction to be that words accompanying a gift or bequest, expressive of confidence, or belief, or desire, or hope, that a particular application will be made of such bequest, will be deemed to-import a trust upon these conditions, first, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not;. secondly, the subject must be certain, and thirdly, the objects expressed must not be too vague or indefinite to be enforced;” and then in reference to this third condition he says, “It is most important to observe that vagueness-in the object will unquestionably furnish reason for holding that no trust was intended, yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not- sufficiently certain and definite to be valid and effectual; and' it is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust; it ⁵³⁵ is only necessary that it should clearly appear that a trust was intended. * * * Once establish that a trust was intended and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of the trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded and the next of kin take. But there is no peculiar effect in the word ‘trust;’ other expressions may be equally indicative of a fiduciary interest though not equally apt and clear.” He then refers to the fact that in the will before him, as in the will before us, another legacy had been givan to the legatee, as