Murphy v. Coale

²⁰⁰ Thomas, J., delivered the opinion of the Court. John Murphy, of Baltimore City, died in 1880, leaving a last will and testament, by which he directed his executors therein named to; sell all his property, and after the payment of his “debts and funeral and testamentary.expenses,” to divide the .remainder of his estate, provided it did not exceed the sum $120,000, among his six children, viz: Mary Louise, Mary Cecilia, Frank K., Nannie Eulalia, Charles and Alice Margaret Murphy, “share and share alike.” The third, sixth, seventh, eighth and ninth paragraphs of the will are as follows: “3rd. It is my desire that the estate and moneys hereinbefore given to my children subject to my wishes hereafter expressed, shall be invested by my executors or their guardians respectively, as the case may be, in secure fee-simple ground rents or Baltimore City stock, in the names of my said children respectively. The shares of my daughters to be and enure to their sole, separate and exclusive use for life, so that they may take the rents, issues and profits thereof, without the intervention or control of any husbands whom they may marry; remainder at their decease respectively to their children or descendants (to take per stirpes) and in default of such children or descendants living at their death, then to their brothers and sisters and the descendants of such (to take per stirpes.) “Should any of my said children die before me, without leaving lawful issue who shall survive me, or should any of my said children die after me, before reaching twenty-one, without leaving lawful issue then respectively surviving, the share or shares of such child or children shall pass equally to their brothers and sisters and descendants (to takzper stripes) of any who may have previously died, leaving lawful issue surviving them.” “6th.

Having entire confidence in the judgment, integrity and friendship of my executors hereinafter named, I leave entirely to their .discretion (subject however to the provisions hereinafter contained) the time and mode of closing up my ²⁰¹ business, and realizing my estate as hereinbefore provided as well as of investing the moneys of my children and reinvesting the same if required. I shall have a general statement of my property and affairs, with certain indications of my ideas and wishes in respect thereto, but I desire it understood, that I mean the same merely as suggestions, and not in any way to control the deliberate judgment of my executors, should'they, under the circumstances then existing, differ with me in opinion. For their trouble in settling my estate and looking after the interests and investing the property of my children, it is my desire that my executors shall be allowed the usual commission.” “7th. As it is my will and desire that the business which I have established, and I am now engaged-as a printer, publisher, bookseller and stationer, shall, if possible, be perpetuated under the same name and style of John Murphy & Co., I desire it to be continued and hereby qualify the foregoing provisions, in order that it may be continued, for the benefit of my estate, under the direction and management of my executors hereinafter named, until such time, as my son Francis K. Murphy, if he survives me, shall arrive at the age of twenty-one years,.which will be on the sixth day of August, in the year eighteen hundred and eighty, at which time, or as soon thereafter (not exceeding six or twelve months) as in their judgment, my executors may deem it expedient, I desire that the business on the part of the estate shall be discontinued, unless, in the meantime, from ill health, or any other cause, my son Francis shall be unable to, or does not in the judgment of my executors, give such attention to the business as shall be proper and necessary, in which case I desire that the business, on the part of the estate, shall be closed and wound up as soon as may be practicable, consistently with proper prudence, and that the portion of my property, consisting of the printing office and all appertaining to it; the stereotype plates and copyrights appertaining to them, the steel plates, wood engravings, brass stamps, &c., &c., and all the stock, consisting of books paper, stationery and all matters appertaining thereto, ²⁰² shall be valued by careful and discreet persons of judgment in such matters.

After ascertaining the value thereof, my executors shall sell or dispose of the same in such manner as to them may seem best and safest, and as promptly as may be, without incurring sacrifice.” “8th. If, at the time specified above, (that is, on his reaching twenty-one, or within six or twelve months thereafter as aforesaid) my son Francis shall be in the enjoyment of good health, and it shall be his desire to continue the business,and he shall manifest capacity, therefor and attention thereto as aforesaid, in the judgment of my executors, — the portion due to him as his share in the estate shall be paid to him in the stock and in the valuation aforesaid, and, in the discretion of my executors, they may sell to him, at the assessed value, any portion or the whole of the same over and above his proportionate share of said stock taking mortgage or security for the whole excess beyond the portion due to him, or, if they deem it to the interest of my children aforesaid, they may continue the business in connection with my son Francis, for such time as in their judgment, they may deem best.” “9th. I desire that the estate of my children, female as well as male, shall be managed by their guardian or guardians, until they reach the age of twenty-one, or are married. Should any of my children marry before reaching twenty-one, they shall still be entitled only to the rents aud profits of their estates respectively, and the same shall remain under the control of their guardians, unless the latter should deem it prudent and safe to let them manage the same themselves; without power, however, of alienation or disposition of the principal or any power of anticipation, until they respectively reach their majority.” By the nth paragraph of his will the testator appointed Thomas C. Yearly, Benjamin G. Harris and his daughter, Mary Louise Murphy, executors, and provided that “should any of them die before the entire fulfillment of the trusts herein confided to them, it is my desire that my friends shall take their place from time to time in the order in which they ²⁰³ are named.” He also appointed Mary Louise Murphy, and, in case of her death, Mary Cecelia Murphy, guardian of his children.

In 1892, Mary Cecelia Murphy, Alice M. Murphy, Nannie E. Coale, and Thomas E. Coale, her husband, filed in the Circuit Court of Baltimore City their bill of complaint against Mary Louise Murphy “in her own right as executrix of the last will and testament of John Murphy, deceased,” alleging that letters testamentary had been granted to Mary Louise Murphy, Thomas C. Yearly and Benjamin G. Harris, the executors named in the will; that the estate had been finally settled; that said Thomas C. Yearly had since died and that “said Harris had resigned the office” of executor; that in pursuance of the directions of said will they had made certain investments in Baltimore City stock in the names of the testator’s daughters, subject to the provisions of his will; that it was desirable to sell said stock and to reinvest the proceeds of such sales, “but neither the said Mary Louise Murphy, the executrix, alone, or the executrix in conjunction with the children of the testator have been able to procure the Mayor and City Council of Baltimore to transfer the said stock, inasmuch as it has maintained that the construction of said last will and testament was not sufficiently clear to enable it to make said transfer without the protection of an order of the Orphans’ Court of Baltimore City or the decree of a Court of equity;” that the plaintiffs were advised that the power conferred by said will upon “Mary Louise Murphy, the surviving executrix, to change said investments and to reinvest the funds in her discretion,” and praying “that a construction may be placed upon the said last will and testament, and that it may be decreed that the said Mary Louise Murphy, the executrix as aforesaid, is entitled from time to time to sell, dispose of and transfer the said securities which have been placed in the names of the daughters of the testator for reinvestment, and to reinvest the fund.” Mary Louise Murphy answered the bill claiming that the power was conferred upon her, as executrix, by said will to ²⁰⁴ dispose of the investments made by the executors of the shares of the testator’s daughters and to reinvest the fund, and on the 29th day of April the Court passed the following decree: . “This cause standing ready for hearing and having been submitted for decree, and proceedings and evidence having been read and considered, it is, this 29th day of April, A. D. 1892, by the authority of the Circuit Court of Baltimore City, adjudged, ordered and decreed that by the true construction of the last will and testament of the late John Murphy, the executrix of his will, the defendant, Mary Louise Murphy, was empowered to make changes in the investments made by her of the shares of the daughters of the testator; and it appearing also from the evidence that it would be advantageous that a change should be made as to that part of the estate cf the daughters of the testator, consisting of. the stock of the city of Baltimore; it is further adjudged, ordered and decree'd that the certificates of the five per cent stock of the city of Baltimore standing in the names of the plaintiffs, Mary Cecelia Murphy, Alice M. Murphy, Nannie E. Murphy, now Nannie E. Coale, under the will of John Murphy, deceased, as with similar words identifying said certificates with the estate of the late John Murphy, be endorsed by them respectively for transfer to the defendant, Mary Louise Murphy, as said executrix, and that she endorse her own certificates in the same manner, and that the same be then transferred into her name as executrix of the will of the said John Murphy on the books of the city of Baltimore, and that the defendant, executrix as aforésaid, shall then proceed to sell said stock at the Broker’s Board in the city of Baltimore, and immediately report such sales to this Court for its further direction with respect to the investments of the proceeds thereof.’ ’ No appeal was taken from this decree, but on the 3rd of October, 1907, Mary Louise Murphy,