McClernan v. McClernan

Irving, J., delivered the opinion of .the Court. John McClernan, of Baltimore City, by his will divided “the rest and residue of his estate into four equal parts, and as to two of those parts” he willed as follows; “I give, devise and bequeath to my daughter Mary A. Hughes one of said four equal parts (being one-fourth of said residue and remainder,) to have, hold, use and enjoy the same during her natural life, for her sole and separate use, without the let, control or interference of any present or future husband, with full power to her, to use, expend or appropriate any part or all of the same for her own use only, and as to the portion that may remain thereof at her death, I give, devise and bequeath the same to her brothers, share and share alike, — the child or children of a deceased brother to take the share which its or their father surviving, her would have received. And I make this provision for her with tender and affectionate solicitude for her com ²⁸⁵ fort and well being through life, and with full confidence in her ability and conscientious sense of duty, but mindful of the experience of the past, I solemnly enjoin her to hold this as a trust, and at once with the aid of competent counsel, by her will properly executed, so to arrange her affairs that my wishes herein indicated may be carried out. “I give, devise and bequeath to Sarah McClernan, wife of my son, James McClernan, her personal representatives, heirs and assigns, one of said four equal parts (being one-fourth part of said residue and remainder,) and I earnestly advise, recommend and enjoin it upon her, the said Sarah McClernan, and upon my son, James McClernan, that the portion hereby given her be at once invested with the advice of competent counsel, so that it may he preserved for the use and benefit of said Sarah McClernan and James McClernan, during their joint lives, and the life of the survivor of them, and for their children, to the end, that it may not be squandered or jeopardized in any business scheme or undertaking or speculation, and may not be in any way liable for the debts of my said son James.” The appellants filed a bill in the Circuit Court of Baltimore City averring that'these clauses of the will of John McClernan created trusts in the hands of the first takers in the proper execution of which they are interested, and asked the construction of the will by the Court; and that the Court take charge of the trusts created by the will, and require the legatees in trust to give bond for the faithful discharge of the trusts, and that the executors may be enjoined from paying over until such bonds are given and for such relief as the case may require. By consent of parties, a pro forma decree, dismissing the bill was passed, and from it this appeal was taken.

In the case of Williams’ Ex’r vs. Worthington, et al., 49 Md., 572 , this Court said, quoting from Hill on ²⁸⁶ Trustees, approvingly, “the effect of expressions of this nature in creating a trust, depends entirely on the supposed intention of the testator or donor, to be gathered from the tenor of thei nstrument. ” In that case, the Court said the testator “had expressed his wish and desire merely,” and had not used “imperative language” in respect to the disposition of the property, and the Court would not and did not declare a trust created by that will. In this will no possible doubt can exist as to the intention of the testator. By most “imperative language” he impresses both the legacies herein involved with the character of a trust. In Worthington’s Case, the Court held an absolute estate was given by the language used.

In that case, the power is given to exhaust the estate, if the needs of the first taker required it, as is given here to Mary A. Hughes, and the bequest over is only of what may remain at her death. There is certainly an element of uncertainty as to the subject of the bequest over of only what may remain unexpended by, the first taker at her death. This consideration, in connection with the fact that an absolute' estate was, by the language of the will, first given to the legatee, in the view of the Court in Worthington’s Case, deprived the precatory words of efficacy in creating a trust. This element of uncertainty is relied on here to prevent the raising of a trust.

But when we consider the emphatic language of the testator in declaring his