Mercer v. Safe Deposit & Trust Co.

Jones, J., delivered the opinion of the Court. The appeal in this case, which is' from an order passed pro forma by the Circuit Court of Baltimore City, brings up for construction by this Court the deed of Samuel H. Mercer, now deceased, to Lavinia Hopkins and others in trust for the purposes declared therein. This deed, which bears date the 16th day of February, 1884, recites and grants as follows: “That whereas the said Samuel H. Mercer is about to leave this country and take up his residence in Europe, and whereas it is greatly to the interest of the said Samuel H. Mercer to leave his estate properly managed and controlled by some responsible person here, and whereas he is indebted unto the said Lavinia Hopkins and others, and is desirous to pay his just debts, and having desired the said Lavinia Hopkins for and during the period of her natural life and on her death the said Lewis N. Hopkins and A. Stirling Pennington, his near relatives and friends, to accept the trusts hereinafter provided, he has agreed with the said Livinia Hopkins, Louis N. Hopkins and A. Stirling Pennington to execute this deed, and the said Lavinia Hopkins, Lewis N. Hopkins and A. Stirling Pennington having agreed to accept the said trust for the ¹¹¹ natural affection they bear the said Samuel H. Mercer and for the compensation hereinafter provided. Therefore in consideration of the premises and agreements and advance of six hundred dollars to be paid by the said Lavinia Hopkins to the said Samuel H. Mercer in equal monthly instalments of one hundred dollars per month dated from the first day of January, 1884, to the first day of July, 1884.

Two hundred dollars of which has been paid by the said Lavinia Hopkins to the said Samuel H. Mercer before the execution of this deed, said loan to be paid as hereinafter provided. The said Samuel H. Mercer doth hereby grant and convey unto the said Lavinia Hopkins for life, and on her death the said Lewis N. Hopkins and A. Stirling Pennington and the survivors, his heirs, executors and administrators, jointly, in trust all his, the said Samuel H. Mercer’s, property real, personal and mixed of whatsoever description and wheresoever situate, to have and to hold unto the said Lavinia Hopkins for life, and on her death unto the said Lewis N. Hopkins and A. Stirling Pennington and the survivor, his heirs, executors and administrators jointly in trust and confidence to and upon the uses and limitations and with the powers, to wit:” It-then goes on with care and particularity to confer upon the trustees in express terms the power to “collect and receive the income, rents and profits ” of the property conveyed and without being responsible for or charged with any debts, transfers or incumbrances,” which the grantor might make, “to expend or cause to be expended for the use and benefit” of the grantor “or to pay over, as in their judgment shall be best, the entire amount of income,” &c., to the grantor, “ provided however,” that the trustees “shall not be obliged to expend for the use and benefit” of the grantor, “or to pay over” to him “a sum or money greater than four-fifths of the income ; ” and to apply the balance of the income “to the payment of the loan of six hundred dollars made by the said Lavinia Hopkins ” to the grantor, with the interest to accrue, “ and to the payment of such other ¹¹² debts” as were then due by tli£ grantor with “full power and authority to settle, pay and compromise all debts ” which in the judgment of the trustees were “just and owing” by the grantor, and to charge the'same upon all moneys accruing as income to the grantor. Then after allowing to the trustees a commission out of the income to come into their hands the deed finally provides as follows: “ It is further mutually agreed and understood that if the said Samuel H. Mercer shall leave a widow living at the time of his death and leave no children or descendants living at the time of his death, then the said trustees shall hold said property with the same powers in the trustees for the use and benefit of said widow during her life or widowhood, and at her death, or on her marriage again, • then said trustees shall hold said property to and for the use and'benefit of the right heirs of the said Samuel H. Mercer, according to the laws of the State .of Maryland. If the said Samuel H. Mercer shall die leaving a child or children, or descendants living at the time of his death, but leaving no widow living at such time, then to said trustees in trust for such issue per stirpes.

If said Samuel H. Mercer shall die leaving a widow and child, children or descendants living at the time of his-death, then to said trustees in trust to and for the use and benefit of such widow and children and descendants-in the manner and proportion which said widow, children and descendants would be entitled per stirpes under the laws of the State of Maryland if said Samuel H. Mercer had died intestate seized of said property. If said Samuel H. Mercer should die leaving at the time of his death neither a. widow or children or descendants living at such time, then in trust for the right heirs of the said Samuel H. Mercer by the laws of the State of Maryland: It is finally mutually agreed and understood that if at any. time during the continuance of the aforesaid trust it shall appear to the said trustees that it is for the benefit of the party or parties for whose use and benefit the aforesaid trust has been created that the said trust should terminate, that then the said ¹¹³ trustees may reconvey said property upon a proper release from the party or parties who are then entitled to the use and benefit of said property.” The order of the Circuit Court was .passed in a cause therein pending which was instituted to procure a sale of certain leasehold property in Baltimore City, for the purpose of making distribution and reinvestment of the proceeds thereof. In this property Samuel H. Mercer acquired, under the will of the late Johns Hopkins, an interest which became subject to the operation and effect of the deed here to be construed. A decree for sale having been passed in the cause and a sale having been made thereunder, it was ascertained in the distribution of the fund produced thereby that the share of this fund which was subject to the deed of Samuel H. Mercer amounted to $472.76-100.

A petition was then filed by the appellants alleging that Samuel H. Mercer had died leaving surviving him no children or descendants, but leaving the appellant Marie H. Mercer, his widow, and the appellants, Margaret W. Schapiro and Mary M. Harding, his sisters, who are his sole right heirs and next of kin ; and asking that the said share of the fund so representing the interest therein that passed under the deed of Samuel H. Mercer be distributed directly to them discharged of the trust created by said deed. In support of this prayer of their petition, they allege that the said sisters of the deceased grantor have an absolute vested interest in the share of the fund in question, that all parties in interest are desirous of having the said share distributed and paid over directly to the parties entitled thereto, and to have the trust created by the deed of the 16th of February, 1884, terminated, and that the appellee, being the trustee substituted by order of Court in the place of the original trustees, two of whom have died and the survivor having relinquished the trust, deems it for the benefit of the parties for whose, use and benefit the trust was created that the said trust should terminate. The appellee, in its answer to this petition, admits the allegations ¹¹⁴ thereof, and after giving a statement of the property now held by it, exclusive of the sum of money mentioned in the petition, subject to the deed of trust and expressing doubts as to the true construction of the said deed and as to its power thereunder; as substituted trustee, to terminate the trust, avers that “so far as it is authorized by said deed and so far as it can do so without committing a breach of the trusts assumed by it,” it consents to the disposition of the fund asked for by the said petitioner. Upon these facts two questions are presented for the consideration of this Court. ist.

Whether those who answered the description of heirs at the time of his death took, at his death, a vested interest in the property conveyed by the deed of Samuel H. Mercer, of the 16th of February, 1884. 2nd. Assuming that they did, whether the trustee, now substituted in the place of the trustees named in the deed, is invested with the power and discretion to terminate the trust under the concluding clause of the deed. We think both of these questions are to be answered in the affirmative. The law favors the early vesting of estates.

This is a familiar rule of law which has been frequently recognized and enforced in the decisions of this Court. In the case of Tayloe v. Mosher et al., 29 Md. at p. 456 — 7, this Court said: “ The law favors the vesting of estates and to make an estate contingent it must appear from the language used and the nature and circumstances of the case that the time of payment was made the substance of the gift, and that the testator meant that time as the period of vesting.” And again at page 457, “ Estates will be held to be vested wherever it can fairly be done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must be so plainly inferrible from the terms used as to leave no room for construction.” Equally emphatic is the language of the Court in' the case of Crisp, Trustee, v. Crisp et al., 61 Md., where at page 152 it is said : “ In the ab ¹¹⁵ sence of plain expressions, or an intent plainly inferrible from the terms of the will, the earliest time for the vesting will be adopted where there is more than one period mentioned in the will.” In the same case it is also said : “ The testator has ample power to fix the period of vesting to suit himself (always within the rules the law fixes), but he must indicate his wish with reasonable certainty, for if he does not the law will presume he intended the earliest time.” If the law is thus exacting in respect to the question now being considered, in construing wills, where it is always indulgent to the intent of the testator, it will certainly be no less strict in its application to the construction of a deed, under w7hich the question arises here. Now looking to the language of the deed we are construing, we look in vain for the “ plain expressions,” that “leave no room for construction,” and indicate “with reasonable certainty,” that-the earliest time for the vesting of the interest which his heirs were to take, in the contingency that has happened, was not intended by the grantor therein. On the contrary looking to the language of the deed, the character of its provisions, its declared purpose and its whole scheme in connection with “the nature and circumstances of the case,” just the contrary is indicated.

The object of the deed, as expressed therein and clearly manifested in its provisions, was mainly for the use and benefit of the grantor himself, to promote his personal purposes and to serve his convenience, and as long as he should live. It was