McMahon v. Consistory of St. Paul's Reformed Church

Grason, J., delivered the opinion of * the Court. The appeal in this case is from an order of the Circuit Court for Carroll County, in Equity, overruling a demurrer to an amended bill of complaint. The matter arose under the third paragraph of the will of John T. Orndorff, deceased, and the sixth paragraph of the codicil thereto. The will was executed on the 5th day of October, 1893, and the codicil on April 19, 1894.

By the third paragraph of the will the testator devised to his wife, Laura S. Orndorff, certain property in Westminster “to hold during the term of her natural life or widowhood; and at her death or remarriage, whichever shall first occur, I give and devise the same to, and the same shall vest in, The Consistory of St. Paul’s Reformed Church at Westminister, * * * in trust to use. and apply the income and rents thereof solely to the payment of the salary of the Minister or pastor in charge of said St. Paul’s Reformed Church; but should said income and rents be at any time used for or applied to any other purpose than the one herein specified, then this devise to said ‘Consistory’ shall at once become void and said trust shall then also at once cease and determine and said property in this paragraph mentioned shall then immediately vest absolutely in my said three children, or their respective heirs per stirpes as tenants in common, in fee simple. * * By the sixth paragraph of the codicil the testator annexed a further condition: “* * * to my devise and bequest to The Consistory of St. Paul’s Reformed Church as set forth in the Third paragraph of my said Will, the said Consistory shall keep in proper repair, clean and in good condition, my ²⁶⁵ Cemetery lots in Krider’s Cemetery near Westminister, Md., as long as said Consistory shall receive the proceeds of said devise or bequest.” The will and codicil thereto were duly admitted to probate by the Orphans’ Court of Carroll County on May 1, 1894. The widow did not remarry, and enjoyed the life estate bequeathed to her for many years. At her death the Consistory took possession of the property mentioned in the third paragraph of the will and applied the rents and profits of the same to the payment of the salary of the pastor of the church and to the upkeep of the lots in the cemetery referred to. The property mentioned in the third paragraph of the will comprised three lots, with a building on each lot, one of which was a home and continued to be used as such by the widow until her death.

The Consistory alleges that these properties have become greatly in need of repair and that it would require considerable expenditures to repair the same; that the rents and profits from the same have declined over the years, and that it has entered into three separate contracts for the sale of the properties, subject to the approval of the court, and it would be to the benefit and advantage of the Consistory to consummate these contracts and invest the proceeds arising from the sales and to use the income derived therefrom towards the payment of the salary of the minister at said church, and the upkeep of the cemetery lots referred to. A demurrer was sustained to the original bill and an amended bill filed, which was demurred to, and the demurrer was overruled, which resulted in the appeal in this case. The plaintiff in the amended bill is the Consistory of St. Paul’s Reformed Church of Westminster, Carroll County, Maryland, a body corporate, and the defendants are Ruth N. Orndorff McMahon, Gladys L. O. Miller, Madeline O. Hannon and John Thomas Orndorff (who are the appellants), John A. Bankert and Elsie H. Bankert, his wife, D. Sterling Young and Virgie N. Young, ²⁶⁶ his wife, (appellee’s vendees). The amended bill sets out substantially the matters herein above recited.

The last or fourth paragraph of said amended bill is as follows: “That all of the children of the above named John T. Orndorff, named in his will, have since departed this life, and the above named defendants are all of the children and heirs of said deceased children; namely, the said Ruth N. Orndorff McMahon, being the only child of Elmer T. Orndorff, and the said Gladys L. O. Miller, Madeline O. Hannon, and John Thomas Orndorff, being the only children of the said Clarence G. Orndorff.” The amended bill prayed for the sale of the real estate referred to; that the proceeds thereof be invested under the decree of the court, and the income therefrom applied in accordance with the provisions of the last will and testament of John T. Orndorff. There was a further prayer that the agreements of sale be ratified and confirmed, and for further relief. The will and codicil and the written agreements for the sale of the respective properties, subject to the approval of the court, were filed with the original bill of complaint, and the amended bill of complaint prays that such exhibits be considered as a part