Milligan v. Pleasants

Fowler, J., delivered the opinion of the Court. The two appeals in this record may be considered together. This is an amicable proceeding, instituted for the purpose of correcting certaixx alleged mistakes in a declaration of trust executed by Richard H. Pleasants, the appellee in both appeals, and fox- general relief. ¹² It appears that the late Dr. J. Dickinson Logan, on or about the 17th of September, 1879, delivered to the appellee five bonds of one thousand dollars each, of the Gas.Light Company of Baltimore, for the purpose of providing a fund to be used for the maintenance and support of John J. Milligan, and his wife, should he marry, and with remainder to his children, if any, and in default thereof, to his sister, Sophia C. Milligan. The bill alleges that, in consequence of a mistake in drawing the said declaration of trust, it fails to express correctly the intentions of Dr. Logan.

And the allegation is that the said Logan, having full confidence in the appellee and in his friendship for the said John J. Milligan and his sister, desired to give the appellee full power to make such investment of said fund as would be most beneficial to said Milligan, and at the same time profitable and safe; but that the said declaration, in consequence of said mistake, has been so drawn as to make it doubtful whether the said Pleasants is not required to invest the said fund in a farm, although the said Milligan is firmly determined neither to live upon a farm nor to engage in the occupation of farming. It is also alleged that such an investment would be prejudicial to the preservation and increase of the fund, and would involve the appellee in a useless and cumbersome circuity of action, because, having a due regard for the welfare of said Milligan, he would be compelled, immediately after purchasing a farm, to exercise the unqualified power of sale and re-investment given him by the declaration of trust, that he might get rid of said farm. A pro forma order was passed by the Court below vacating the declaration of trust, in so far as it directs the trust fund to be invested in a farm, and requiring the appellee to execute a new declaration of trust containing a power to invest in real estate, or real estate ¹³ securities, in his discretion, and in all other particulars conforming to the terms of the original declaration. The appellee was also ordered to pay over to the said Milligan absolutely, all the income of the trust fund' which has accr-ued since the 23rd September, 1883, when said Milligan reached the age of twenty-two years, and to invest the balance of the fund in his hands in real estate or real estate securities, for the purposes of the trust.

John J. Milligan and his sister have both appealed from this order. It requires no authority to show that if a mistake has been made in a written instrument, a Court of equity has ample power to correct it, provided such mistake is shown by the clearest and most satisfactory evidence, and the real intention is established in the same manner. But while the evidence here shows it is the opinion and belief of the witnesses that the written instrument before us does not fully express the wishes of Dr. Logan, it is far from being of that satisfactory