Missionary Society of the Methodist Episcopal Church v. Humphreys

Fowler, J., delivered the opinion of the Court. The question presented by these appeals arises on the construction of the will of the late Willie F. Hooper, of Wicomico County. Mrs. Margaret A. Humphreys, by her husband, filed a bill in'the Circuit Court for that county in which she alleged that the third, fourth and fifth clauses of her sister’s will are void. The defendants were duly summoned and answered.

The case was heard by the Court below on the bill, answers and testimony, and after argument a decree was passed declaring that the third and fourth clauses are valid, so far as they relate to the provision therein respectively in favor of the preacher who may be from time to time in charge of said churches respectively; but void so far as the same made provisions for the benevolent boards and the keeping in good condition of the “ Hooper Burial Lot.” The decree further declared that the fifth paragraph of the will is void, and that title to the house and lot therein devised to trustees in trust, to rent the same and pay the net rent as therein directed, vested in the plaintiff as sole heir and residuary devisee upon the death of the testatrix. From this decree the trustees named by the testatrix in the fifth item of her will have appealed; and several of the beneficiaries of the trust have also appealed ; but both appeals present the same questions. The appellants made no objection in this Court to that portion of the decree which relates to the third and fourth paragraphs ; hence the sole question left for our consideration relates to the validity of the devise contained in the fifth paragraph of the will. It is as follows : “ I give, devise and bequeath my house and lot * * * to F. Marion Slemons, Thomas H. Williams and E. Stanley Toadvin in trust, to ¹⁴⁰ hold the said property, and to rent out the same, and collect the incomes and rents therefrom. ” The testatrix directs her trustees, after the payment of her debts and funeral expenses, to pay the net rent from year to year to a number of incorporated bodies and boards for charitable purposes in certain proportions designated by her.

The contention of the appellee, and this contention was sustained by the Court below, is that the devise in the fifth paragraph is void because it creates a trust to which there is no limit of time. Upon an examination of the will itself we not only fail to find an express limitation to the duration of the trust, but the testatrix makes express provision for its indefinite continuance in the seventh paragraph of her will by providing for the appointment of trustees to succeed those she had named in case of the death, resignation or refusal of the latter to serve. We think there can be no doubt as to the intention of the testatrix. She intended by the creation of this trust to make a perpetual provision for the objects of her bounty.

Can we, under the well and long-established law of this State, effectuate that intention ? We certainly cannot if we adhere to the well-considered decisions of this Court from the case of Barnum v. Barnum, 26 Md. 119 , down to the present time. In the case just cited it is said that “The first and very important question which arises on this statement of the contents of the will * * * is whether the period described in the will, through which the leasing by the trustees is to run, transgresses the rule against perpetuities. ’ ’ It was held that the period of leasing so designated by the testator did plainly violate the rule, and in disposing of the question this Court said : “ If an estate be so limited as by possibility to extend beyond a life or lives in being at the time of its commencement, and twenty-one years and fraction of a year (* * *) after-wards, during which time the property would be withdrawn from the market, or the power over the fee suspended, it is a perpetuity. * * * * The question whether an estate is a perpetuity, generally arises in cases in which a future ¹⁴¹ contingent estate or executory devise is limited upon a fee, and if the contingency upon which the executory estate is to vest, is not necessarily to happen within the time fixed by the rule as the legal boundary, then the precedent estate or estates are denominated a perpetuity, and the executory estate or devise fails for want of a legal estate to support it. * * * The object of the rule is to prevent the tying up of property, real or personal, and rendering it inalienable longer than the period designated by it. For that time the power over the inheritance or absolute interest of property may be suspended, but no longer.” “ In the case now under consideration no question is presented as to the future vesting of an executory estate in order to determine the validity of the preceding one, but simply whether the trusts of the will require in their execution a longer period than that prescribed by the rule against perpetuities, and therefore render the property devised to the trustees inalienable during that time.

If so, the law denounces the devise in trust as a perpetuity and declares it void.” In Deford v. Deford, 36 Md. 178 , (C. J. Bartol being the only Judge who sat in that case and also in Barnum v. Barnum), Miller, J., in delivering the opinion of the Court said, referring to Barnum v. Barnum : “ All the reasoning in that case applies here, and we regard it as binding and conclusive authority which must, notwithstanding the very able argument of counsel to the contrary, control our judgment in the present case. The Courts in prescribing and settling the rule against perpetuities have founded it in true wisdom. They have thereby limited the indulgence of the natural inclinations of men to fix control over their property after