Nunn v. O'Brien

Russum, J., delivered the opinion of the Court. The question presented by the appeal in this case is the construction of the will of Mrs. Sue B. Cary, who died in Baltimore City, February 20th, 1887, which contains the following clause : “All the rest, residue and remainder of my property and estate, of every kind whatsoever, I give, devise and bequeath to my dear husband, Charles J. Cary, absolutely, and this I do because of the love I bear him and ¹⁹⁹ the confidence 1 have in his judgment, discretion and honor, and 1 do entrust my dear child to his care and guardianship, knowing his loving tenderness and sound judgment will insure the well-being of my child, so far as lies in his father’s power; and it is my wish that my dear husband shall so arrange his affairs that, at his death, whatever may remain of the said rest, residue and remainder of my estate, shall go to my son, if he be then living, or if he be not living, to his issue, if any such there be, share and share alike, or if neither my son, nor any of his issue, survive my husband, then to such of my relatives as my husband may appoint.” Charles J. Cary, the husband of the testatrix, conveyed the property thus devised to him to William J. O’Brien, in trust for the benefit of his creditors, who, under an order of the Circuit Court No. 2, of Baltimore City, sold the same to Stephen E. Nunn. A few days thereafter Nunn filed objections to the ratification of the sale, alleging that although an absolute leasehold estate in the lot of ground at the corner of McCulloh and Dolphin streets was advertised and sold by the trustee, yet the said trustee had only an estate in said property during the life of Charles J. Cary, “ inasmuch as by the will of Sue B. Cary the said property was bequeathed to the said Charles J. Cary for life only, with remainder over to other persons.” A pro forma order was passed overruling the objections and ratifying the sale, from which the purchaser appealed to this Court. There was no claim, in the argument, that the devise over of what might remain was good, either as a remainder or as an executory devise, and the only question submitted for our consideration is whether the above recited clause created a precatory trust in favor of the son of Mrs. Cary, if living at the death of Charles J. Cary, and, if he be not then living, in favor of such issue as he might have living at the time of his death.

The doctrine of the creation of trusts by words of recommendation, desire and the like has been distinctly recognized in the decisions of this Court. . Briefly stated, the ²⁰⁰ rules laid down for the construction of wills containing such words are: (a.). The primary and cardinal rule is, that the intention of the testator,.if it be consistent with the rules of law, is to govern, and this must be gathered from the whole will. (b.y That words of entreaty, recommendation or wish, addressed by a testator to a devisee or legatee, will make him a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out, with clearness and-certainty, the objects of the trust, and the subject-matter on which it is to attach, or from which it is to arise and be administered, (c.) Wherever a clear discretion or choice to act, or not to act is given, wherever the prior disposition of the property imports absolute and uncontrollable ownership, in all such cases Courts of Equity will not create a trust from words of this character.

See Negroes Chase et al. v. Plummer, 17 Md. 165 ; Williams Exr. et al. v. Worthington et al., 49 Md. 572 ; Handley et al. v. Wrightson et al., 60 Md. 198 ; Maught Exr. v. Getzendanner et al., 65 Md. 528 ; McClernan et al. v. McClernan, 73 Md. 284 . Guided by the cases from which these rules are deduced, w,e now proceed to consider whether looking to the whole will the testatrix intended to create a trust, and, if she did, whether the words employed by her are sufficient to .create one, as contended for by the appellant. Did she clearly understand the difference between an imperative direction and the expression- of a mere wish, indicating. what she thought would be a reasonable disposition of his property by her husband, at his death? In each of the two clauses preceding the one under consideration she