Orrick v. Boehm

Bowie, J., delivered the opinion of the Court. The claims of the several appellants arise out of the construction of the second, fifth, ninth and twelfth items, of the will of the testator, which is dated the thirty-first day of August, 1832, and was proved on the 13th of May, 1843, and admitted to record, in the office of the Register of Wills of Baltimore City. After giving and bequeathing to his wife Elizabeth Stonebraker, the house and lot No. 42, on Hanover street, with all the furniture, etc.; also, a small farm called Whitehall, situated on the old Frederick Road, etc., the second item provides, “ I also give and bequeath to my dear wife Elizabeth Stonebraker, the sum of thirty thousand dollars, to he paid over to a trustee, or trustees, to be appointed by my executors, which trustee, or trustees, shall place and continue the said sum of thirty thousand dollars, upon good security, and pay the interest and diyidends thereof, as they may fall due, to my dear wife Elizabeth Stonebraker for her use, during the term of her life ; and from and immediately after her decease, pay and distribute the capital (after the sale of house and lot on Hanover street, with the farm called Whitehall,) in the following manner: “ Her dear niece, Malinda Neff, eight thousand dollars on interest or annuity, during her life, from thence to her heirs or assigns, from one generation unto generation. ⁹⁴ Also, eight thousand dollars, to her nephews, and nieces, children of her brother John Neff, the said eight thousand dollars, each child to have share and share alike, of this named sum, and to be disposed of same manner as Malinda Neff’s ; and five thousand dollars, to my dear niece Urilla Stonebraker, daughter—brother John Stonebraker, also to be disposed of same as Malinda Neff’s; six thousand dollars to be vested in stock, or annuity for the use of the Lutheran Congregation of Boonsborough, Washington County, Maryland, the interest to he applied only for the payment of said congregation’s pastor’s salary, and be considered as permanent funds for the use of aforesaid congregation forever ; the balance of this amount bequeathed to my dear wife, E. Stonebraker, if a balance remaining after all other sums before mentioned are paid, shall be applied for a second English Lutheran Church, to be located in the City of Baltimore, south from Pratt street, and west from Sharp street, provided this church will not be erected and completed for worship within three years after this appropriation is made, then the American Colonization Society shall enjoy the benefit thereof. ’ ’ The third item bequeaths certain houses and lots in Baltimore and Boonsborough, Maryland, to his nephew, John A. Bentz; also, the sum of $12,000. The fourth item, bequeaths certain houses and lots in Boonsborough, Washington County, Maryland, to the rightful heirs of his nephew, Samuel Beritz.

The fifth item is as follows : “I give and devise my house and lot of ground thereto belonging, situated in Boonsborough, Washington County, Maryland, (a white framehouse formerly occupied by the Rev. Mr. Bacher,) to the Lutheran Congregation, for a parsonage house only, of said place.” The sixth item, is a bequest unto his niece, Catharine Harbaugh, of his one-half of a brick store, etc., in Middletown, Frederick County, Maryland; after her death, ⁹⁵ the same to he transferred to her children, share and share alike. The seventh item, bequeaths to the Orphaline Society of Baltimore, the sum of five thousand dollars, for the use of that institution. The eighth item, bequeaths to the Humane Impartial Society of Baltimore, the sum of one thousand dollars, for the use of that institution. The ninth item gives and devises the house and lot occupied by Mrs. Reynolds, in Boonsborough, Washington County, Maryland, to his black woman, “Tilly,” (to whom he gave her freedom,) with sixty dollars yearly, during her life; after her decease, the said house and lot with the annuity of sixty dollars, for the sole use of the Lutheran and German Reformed Congregation of Funks-town, Washington County, Maryland.

The tenth item, bequeaths unto his black woman, Dolly, the interest of one thousand dollars during her life, and her freedom;' after her death, the said amount to be permanent funds for the poor and destitute of Funkstown, Washington County, Maryland, said funds to be placed in the hands of the Vestry of the Lutheran and German Reformed Church of the aforesaid town. The eleventh item. “All other colored servants, now my property, to have their freedom, when twenty-one years of age.” Twelfth item. “If a balance may remain of my real and personal estate after all sums are paid and invested, according to my desire and wishes from section three to twelve, the balance I wish to have appropriated and for the sole use of the American Colonization Society, though must be understood the amount in full bequeath— to B. Stonebraker, J. A. Bentz, and annuity to black women Tilly and Dolly, must be paid first, all other bequests subject to deduction if the estate should not hold out in full.” ⁹⁶ The thirteenth item authorizes his executors to appoint a trustee or trustees, who shall place the respective sums of money for the use of his black women, Tilly and Dolly, on interest or annuities, and pay over the sums named in the ninth and tenth, sections to them, half yearly; also, authorizes his executors, if they think proper and for the benefit of his estate, to have two years after his death, to settle his worldly concerns and to- have “ the privilege of renting real estate if it will bring six per cent, on a fair valuation ; (in this last real estate I am alluding to such real property not named in this instrument of writing.”) Lastly, he appoints his wife, his nephew John Bentz, his brother Gerard Stonebraker, and Elias Davis, executors of his will, “to see his intentions in respect to the residue of his estate are, and shall be strictly complied with.” It is apparent from the literal citations of the will which we have made, that the testator’s intentions, however clear in his own mind, have been very obscurely and vaguely expressed. His heart was more cultivated than his understanding ; his designs were more liberal than his language ; his views, larger than he was competent to communicate. A striking feature of this will is its abundant benevolence.

His wife, her nephews and nieces;—his brothers, his nephews, his servants, the congregations of Christians to which he belonged, or with which he had associated, the Orphaline and Humane Societies, and last, but not least, the American Colonization Society, seemed to be objects of his bounty. It is to be very much lamented, that the last wishes of such a benefactor should be disappointed, or fall short of their mark because of the vagueness or obscurity of the language, in which they were uttered. The law, has however no sympathy for the objects of testamentary dispositions, its sole province is to ascertain the ⁹⁷ will, as far as it is expressed in conformity with its policy and its prescribed rules. Taking the cases in the order in which they are presented on the record ;—on the appeal of Orrick and wife, it is insisted as a preliminary objection, that the trustee, Ohas.

T. Boehm, acting under the decree of the Superior Court appointing him, had no authority to file his hill in this case, that the order of consolidation was improper, and the bills should have been dismissed. That the 36th section of Art. 4, of the Constitution of Maryland, upheld the jurisdiction of the Superior Court, where the case in which he was appointed trustee still remained, and as an officer of that Court he had no right to do any thing in regard to a trust fund under its jurisdiction, without a special order of that Court for that purpose. It appears from the hill of the trustee, Chas. T. Boehm, and the answers of the several defendants, that a bill was filed in the Superior Court of Baltimore City in equity, by Elizabeth Stonebraker, widow of the deceased testator, and one of the executors, for the appointment of a trustee, as provided by the will.

Under said proceeding, Gerard Stonebraker was appointed trustee, upon whose death Chas. G. Boehm was appointed trustee ; and upon the death of Charles G. Boehm, Charles T. Boehm, the appellee, was appointed trustee. The powers of the trustee, appointed by the Superior Court in the case of Stonebraker vs. Stonebraker are not expressly set forth, but if appointed to execute a trust under the will, it was limited to the duties therein prescribed. The case of Stonebraker was prosecuted to final decree and there the authority and jurisdiction of that Court as a Court of equity ceased.

Upon the re-organization of the Judiciary, under the Constitution of 1867, the Superior ⁹⁸ Court of Baltimore City was divested of its jurisdiction inequity, and the Circuit Court of Baltimore City was invested with exclusive jurisdiction in equity. Vide Constitution of Md., Art. 4, part IV, secs. 28, 29. Whatever might have been the power and authority of the Superior Court, to pass orders in the case of Stonebraker vs. Stonebraker, prior to a final decree, it clearly had no authority to pass orders with a view to future litigation. It could not initiate proceedings for the purpose-of deciding questions which had arisen, or might thereafter arise, as to the distribution of the assets under George,Stonebraker’s will.

But conceding for argument’s sake, that the trustee,. Charles T. Boehm, had no power to file his bill without the previous order of the Superior' Court of which he was trustee, that Court had no power to protect him from being-sued by the legatees of the said Stonebraker, or others, claiming as heirs-at-law and next of kin. Being sued and made defendant in two separate and distinct bills, in the Circuit Court of Baltimore City, involving the same questions and claims arising out of the same instrument, it was his right and privilege, as a party defendant to those suits, to pray they might be consolidated. The Court below was therefore right, in our judgment, in passing the order consolidating the causes involving the construction of the testator’s will.

The second question, arising upon the appeal of Orrick and wife, and those claiming under the widow of George Stonebraker, and the appeal of Malinda Barth, is whether Malinda Barth, (nee Neff,) takes under the will of the deceased, the sum of eight thousand dollars only, as bequeathed to her by name in the second clause or item of the will, or, in addition thereto, one-fourtli of the sum of $8000, bequeathed in the next sentence of the same section of the will, to the children of John Neff. ⁹⁹ This depends entirely upon the intention of the testator, as manifested by the language he has used. It is conceded that Malinda Neff, (now Barth,) is one of the children of John Neff, and a niece of the testator’s wife. Immediately following the bequest of the testator to his wife, of the sum of $30,000, to be paid to a trustee, for investment, the interest to he paid to her, for her use during the term of her life ; the will directs “ and from and immediately after her decease, pay and distribute the capital (after the sale, house and lot on Hanover street, with the farm called Whitehall,) in the following manner: her dear niece, Malinda Neff, eight thousand dollars, on interest or annuity during her life, from thence to her heirs or assigns, from one generation unto generation. Also eight thousand dollars to her nephews and nieces, children of her brother, John Neff, the said eight thousand dollars each child to have share and share alike of this named sum, and to be disposed of same manner as Malinda Neff’s ; and five thousand dollars to my dear niece, Urilla Stonebraker, daughter—brother John Stonebraker, also to be disposed of same as Malinda Neff’s.” It is argued, that this bequest is of two unequal amounts in the same paper, and this makes it cumulative, unless it violates an intent to the contrary, plainly expressed on the face of the will, and in this will there is no such contrary intent; for which position the appellants rely on 2 Williams on Executors, 1289—90.