Myers v. Safe Deposit & Trust Co.

Irving, J., delivered the opinion of the Court. Charles Myers died in June, 1862, having made his will in May preceding, which, after his death, was duly ⁴¹⁵ admitted to probate in Baltimore City. He owned a large estate, real and personal, the residue of which he gave to his wife, Mary E. Myers, during her life, with large powers of selling, leasing, investing, and reinvesting; and after her death he provided as follows: “And immediately from and after the death of my said wife, Mary E. Myers, then my will is, and I so order and direct, that the residuum of my estate and property, whether the same consist of the property owned by me at the time of my death, or of the changes and investments subsequently made by her, shall pass to and become the estate and property of such of my children and grandchildren, or either, as she by her last will and testament, which she is declared competent, and is hereby fully authorized and empowered to make and execute, whether she be sole or covert, shall have named and appointed to take and have the same, and in default of such nomination and appointment by my wife, then my will is that the same shall pass to my children and descendants in the same manner as if I had died intestate.” Mrs. Mary E. Myers died in eighteen hundred and ninety, leaving a will in and by which, after reciting the power given her by her husband’s .will, she executes the power of appointment according to her view of her rights under it. Blending her own and her husband’s estate, she divides each into three equal parts, and by the first clause she wills as follows: “First.

I hereby name and appoint, and give, devise and bequeath unto my son, Alexius Joseph Myers, absolutely, one of said equal parts or shares of the estate and property aforesaid of my said husband, and also one equal part or share of my own individual estate aforesaid.” “ Second, I hereby name and appoint, and give, devise and bequeath unto the Safe Deposit and Trust Company of Baltimore, a body politic and corporate, and its successors, one other equal part or share of the estate and ⁴¹⁶ property aforesaid of my said husband, and also one equal part or share of my own individual estate aforesaid, in trust, nevertheless for the sole and exclusive use and benefit of my son, Ambrose M. Myers, for and during his natural life; the said Safe Deposit and Trust Company of Baltimore, after the payment of all public dues and other proper charge, and the necessary expenses involved in the execution of this trust, from time to time, to pay over the net income or revenue derived therefrom unto my said son, Ambrose M. Myers, for and during- his natural life, and upon his death, when I direct that this trust shall cease and determine, I give, devise and bequeath said equal parts or shares unto any lawful child or lawful children he may leave, in equal proportions, with full power to the said Safe Deposit and Trust Company to change the investments of this trust estate whenever it shall appear advisable to do so. Should the said Ambrose M. Myers, however, die without leaving a lawful child or lawful children, then and in that event I give, devise and bequeath, after his death the one-half of said equal shares or parts of the property so as aforesaid devised and bequeathed in trust for the said Ambrose M., unto my son, Alexius Joseph Myers, and the other one-half thereof in manner following, that is to say: (T) One equal third part thereof unto my grandson, Joseph Alexius Myers. iC(2) One equal third part thereof unto the Safe Deposit and Trust Company of Baltimore aforesaid, in trust, however, for the sole and separate use of my granddaughter, Mary Genevieve Forbes, the wife of George Forbes, subject precisely to the same conditions and provisions, restrictions and limitations, as are hereinafter prescribed and imposed in regard to the estate and property of my said husband and of my own individual estate made for the benefit of my said granddaughter, Mary Genevieve, and her children. ⁴¹⁷ “(3) And the remaining equal third part thereof unto the Safe Deposit and Trust Company of Baltimore aforesaid, in trust, however, for the sole and exclusive use of my grandson, Francis De Ooursey Myers, during his natural life, subject to like conditions, restrictions and limitations as are hereinafter prescribed and imposed in regard to the shares of the estate and property of my said husband, and of my own individual estate made for his enjoyment and benefit.” Of the remaining third part of her husband's estate and her own, she devises to Joseph Alexius Myers one-third part thereof absolutely. One-third part thereof she gives to the Safe Deposit and Trust Company with power to invest and reinvest and hold in trust for her granddaughter, “Mary Genevieve Forbes, wife of George Forbes, for and during her natural life, free from the control of her present or any future husband, the said Safe Deposit and Trust Company to .pay unto the said Mary Genevieve Forbes, from time to time, upon her own separate receipt given therefor, the net profits or income arising therefrom for and during.her natural life. And at the death of my said granddaughter, Mary Genevieve, when I direct this trust shall cease and determine, the said share or part of the property and estate shall be equally divided among her children.

In case of the death of any child or children of my said granddaughter, the share of the child or children so dying shall be equally divided among the survivors; should my said granddaughter, however, die without leaving a child or children, then I give, devise and bequeath one-half of this share of the property aforesaid unto my grandson, and the brother of said Mary Genevieve, Joseph Alexius Myers, and the other one-half thereof unto the Safe Deposit and Trust Company of Baltimore, in trust for the sole use and benefit of my grandson, Francis De Ooursey Myers, also a brother of said Maty Genevieve, subject to ⁴¹⁸ the same conditions and limitations hereinafter contained and expressed in the devise and bequest here immediately following and marked £ 3 ’. ” £££8.’ And the remaining one equal one-third part thereof I give, devise and bequeath unto the Safe Deposit and Trust Company of Baltimore aforesaid, in trust nevertheless, for the sole and exclusive use and benefit of my grandson, Francis De Coursey Myers, for and during his natural life; the said Safe Deposit and Trust Company to pay unto him, the said Francis De Coursey Myers, from time to time, the net income or proceeds thereof, or arising therefrom for and during his natural life, and at his death, when I direct that this trust shall cease and determine, unto any lawful child or lawful children he may leave, in equal proportions, with full power to the said Safe Deposit and Trust' Company to change the investments of this trust estate whenever it shall appear advisable t'o do so. And in case of the death of the said Francis De Coursey Myers without his leaving a lawful child or children, then unto his heirs-at-law; the share of his sister, the said Mary Genevieve, to he subject to the like conditions, limitations and trusts contained in the provisions for her benefit under this will.” The will provided that in case the Safe Deposit and Trust Company should not accept, then a competent Court should appoint a trustee. - Three bills have been filed, all of which appear in this record, which seem to have been consolidated, and one decree passed upon them from which these two appeals have been taken. The first is a hill of Alexius Joseph Myers and Ambrose M. Myers, the surviving sons of Charles Myers, asking a partition of the estate of their father. The second a hill of Benjamin F. Horwitz and Alexius Joseph Myers, adm’rs d. b. n. o. t. a. of Charles Myers, ⁴¹⁹ asking a construction of the will of Charles Myers, and a decision whether Mrs. Myers had the power under it which she has attempted to exercise.

And third, a cross bill by the Safe Deposit Company, the trustee appointed by the will of Mary E. Myers, to execute certain trusts created by Mrs. Myers respecting her own and her husband’s estates, which she blended together, asking for a partition of the estate; that a Court would take jurisdiction of the trusts created; cause proper accounts to be taken; and for a receiver, which also was asked for by the bill of Alexius Joseph Myers and Ambrose Myers. The decree adjudged 1st, all the appointments under the will of Mary E. Myers to be good; 2d, that the title of the adm’rs d. b. n. of Charles Myers to the residue of the estate retained by Mary E. Myers as life tenant in the settlement of her accounts in the Orphans’ Court is good; 3d, that the real estate of Charles Myers should be settled in the Circuit Court, but his personal should be settled in the Orphans’ Court; and, 4th that the personal estate of Mary E. Myers should be settled in the Orphans’ Court. Alexius and Ambrose Myers, plaintiffs in the first bill, and the adm’rs d. b. n. of Charles Myers, plaintiffs in the second bill, appeal - from so much of the decree as sustains the appointments made by will of Mary E. Myers; and Mrs. Forbes and the Safe Deposit Company appeal from all the rest of the decree. The case of Torrance vs. Torrance, et al., 4 Md., 12 , which is relied on, in support of the contention that Mrs. Myers has properly executed the power conferred by her husband’s will, does not seem to us to be controlling in this case.

The language of the will is materially different from that of the will of Charles Myers, and indicates a different, purpose on the part of the testator. The will in that case gave Mrs. Torrance a life estate in real ⁴²⁰ and personal property, with power to her “by deed, will, or otherwise to give, grant, convey, devise, or dispose of my said estate nnto and among all or such of my children or their issue in such manner and proportion, and for such term and estate as she shall think fit. Nevertheless it is my will and I do order and direct that the respective shares or portions designed for my daughters shall he secured to them for life, free and clear of any control of their respective husbands, or without being liable to the payment of their debts; and after their decease for the benefit of their children and their legal representatives in' equal proportions forever.” Mrs. Torrance gave the sons shares absolutely, and created trusts for the daughters, which were upheld and properly so in our judgment. There was no restriction as to the quantity or quality of the estate to he given, nor as to the “manner” of doing it.

The creation of trusts seemed to be the only way of carrying 'out the design of the testator respecting his daughters’ interests efiectually; and that is always the true test as to whether -the power is well executed or not. In the present case the testator, after giving his wife the entire residuum of his estate for life, declares that “immediately from and after the death of my wife, then my will is and 1 so order and direct that the residuum of my estate,” &c., “shall pass to and become the property and estate of such of my children and grandchildren, or either as she by last will and testament * * * shall have named and appointed to take and have the same;” and “in default of such nomination and aj)pointment” then the estate is to pass as if he had died intestate. It is very clear to our minds that the testator designed whoever the wife nominated to take an absolute estate in the personalty and fee in the realty. He gives the wife the simple power to name who shall take the estate, and she is given no power by implication to create a trust, and name ⁴²¹ a stranger to take the title and hold in trust for the beneficiaries she shall name.

The whole estate on the determination of the life estate vested by the will of Charles Myers in his “children and grandchildren” as remain- i der-men, subject only to the power of distribution or i| nomination by the wife, or desig’nation by her of the 1 persons of that class who should have the estate. The wife therefore only had a special power. If she failed to exercise it, the estate was to pass absolutely in fee to testator’s descendants, which reflects additional light as to the kind of estate which the power was to operate upon in the way of designating the taker thereof. Wickersham vs. Savage, 58 Pa.

St., 365. Mrs. Myers took a particular power under her husband’s will, limited in character, and not a general power. In that respect it falls fully within the decision in Wickersham’s Case just cited, and Horwitz vs. Norris, 49 Pa. State, 217.

In Pocklington vs. Bayne, 1 Brown’s Chancery Reports, 450, a marriage settlement conveyed lands “to trustees in trust for Samuel Sharpe for life, remainder to Samuel Pocklington, the husband, for life, remainder to the wife for life, remainder to the use of all and every the child and children of the body of the said Samuel Pocklington on the body of Pl’easance, his wife, begotten, or to be begotten, in such parts, shares and proportions, and for such estate and estates, not exceeding an estate or estates in