Mayor of Baltimore v. Peabody Institute

Sloan, J., delivered the opinion of the Court. J. Wilson Leakin, of Baltimore, died December 26th, 1922, leaving a last will and testament wherein, amongst numerous devises and bequests, there was this devise: “I leave to the Mayor and City Council of Baltimore the properties 101-103 N. Howard Street. 113-115 W. Fayette Street. Five years after my decease, the said properties to be sold and the proceeds invested in a public park.” The City of Baltimore has filed a bill against Susan D. Leakin, sister and sole heir at law of the testator, and The Peabody Institute of Baltimore, residuary legatee and devisee, wherein it says that it proposes to buy “* * * a number of small units of land located in different sections of the City of Baltimore, each of which and all of them together, to be known as ‘The Leakin Park’ or by some other similarly descriptive name and to be maintained as a part of the park system of the City of Baltimore.” What the city proposes to.do, according to the testimony, is to establish several playgrounds out of the funds to be derived from the sale of the property, and “* * to reserve out of said proceeds of sale and said income (rentals which now amount to $124,963) such an amount as in its discretion it deems advisable and necessary for the maintenance and upkeep of the said park.” The bill then prays the court to “* * * take jurisdiction in the premises for the purpose of advising and directing” the Mayor and City Council of Baltimore, whether it may purchase a number of separate units of property from the proceeds and income derived from the property prior to sale, and whether it may reserve out of the proceeds such amount as in its discretion it may deem advisable. Both defendants answered and said that the proposed ¹⁸⁹ disposition of the proceeds from the property would be subversive of the testator’s intention, and asserted that his gift was for the purchase of a park, and not a number of small units to be used, according to the testimony, as playgrounds.

Miss Leakin, in her answer, denies that any part of the gift can be set aside for maintenance and upkeep. The court decreed that the Mayor and City Council of Baltimore “* * * is not entitled or authorized to apply the proceeds derived from the sale and rental of the property devised to it by the will of J. Wilson Leakin, deceased * * * to the purchase of a number of separate units of land in different sections of Baltimore City * * * (nor) to apply the¡ proceeds of sale * * * or any part thereof to the future maintenance and upkeep of any park acquired by the use of said fund,” though the terms of the will would not forbid the application of such part of the fund as may be necessary to improve and equip the land so acquired to render it fit for use as a public park, from which decree the plaintiff appeals. The decree expressly stated that it did not determine or decide whether any part of the rentals may be applied to maintenance and upkeep “* * * such question being apparently not submitted for determination by said bill, and plaintiff’s counsel disclaims any intent to so submit the same,” and we are therefore not free to decide that question (Code, art. 5, sec. 10) though we think the allegations of the bill are sufficient to determine the question. The authority of the plaintiff to accept such a gift is derived from section 2, article 4, of the Code of Public Local Laws (Baltimore City Charter), which provides that “* * * said corporation may receive in trust, and may control for the purposes of such trust all moneys and assets which may have been or shall be bestowed upon it by will, deed or any other form of gift or conveyance in trust for any general corporate purpose, or in aid of the indigent poor, or for the general purposes of education or for charitable purposes of any description within the said city.” ¹⁹⁰ The contention of the plaintiff is that while it has authority under the Charter to take the fund, it is not restrained in the application of it to any purpose within its corporate powers, and it takes that to be the meaning of numerous decisions of this court, to the effect that gifts to any purpose within the general powers of a charity will be held valid.

The main purpose of. the City Charter is not to operate, conduct or manage a charity, which might include a public park as commonly understood, but to conduct a municipal government; to which the provision quoted is incidental, and not necessarily inherent in a municipality, as otherwise there would have been no occasion for the legislation to enumerate this amongst its powers. The section quoted permits the city to receive gifts or conveyances in trust for “any general corporate purpose,” as well as aid to the poor, education or charitable purposes of any description. It has been held by this court that the maintenance of a park is a governmental function, recently in the cases of Baltimore v. Ahrens, 168 Md. 619 , 179 A. 169 , and Baltimore v. State, use of Blueford, 173 Md. 267 , 195 A. 571 , but whether a gift or conveyance to the city is for a general corporate function or a charitable purpose can make no difference in the application of the law to the donation under consideration so long as it is for any object coming within the scope of section 2. Whatever power the city has to receive this gift is derived from this section, and there is no more nor less right to divert a gift for any general corporate purpose, than one to be devoted to the indigent poor, education, hospital, or home for the aged.

While the decisions in this state have generally had to do with gifts to charitable, religious, and educational