Pratt v. Trustees of the Sheppard & Enoch Pratt Hospital

McSherry, C. J., delivered the opinion of the Court. In these proceedings the validity of the twelfth, or the residuary, clause of the will of the late Enoch Pratt is assailed by his heirs at law and next of kin and by his alternative residuary legatees and devisees. There are four cases which have been consolidated, but it is not necessary to set forth the pleadings, or any part of the pleadings therein, as the disposition of the questions presented for decision depends largely on the terms of the will. The cases have been argued with marked zeal and ability on both sides, and we have been greatly aided by the discussion at the bar in our examination of the matters in controversy.

The clause in dispute is in these words: “ Having in my lifetime liberally provided for my niece and nephews hereunder named, I do now hereby give, devise and bequeath all the rest and residue and remainder of my estate of every kind and description, whether real, personal or mixed, and wherever the same may be situate of which I may die possessed or be in any way entitled to at the time of my death, after the payment of all debts justly due by me, and after satisfying all the devises and bequests hereinbefore set forth, to The Trustees of the Sheppard Asylum, a corporation duly incorporated by the General Assembly of the State of Maryland by said name, style and title, and its successors forever, it being my intention and meaning to make said corporation, The Trustees of the Sheppard Asylum, the residuary legatee and devisee under this my last will and testament. “ And I direct my executors to set over, transfer and convey by proper deeds, assignments and transfers the said residue of my estate to the said corporation, upon and subject, however, to the following condition and bargain, namely: That the said Trustees shall adopt as the name and style of said corporation the title of ‘ The Trustees of the Sheppard and Enoch Pratt Hos ⁶¹⁶ pital ’ and shall obtain at the first session of the General Assembly of Maryland after my death, an amendment to their charter authorizing the said change of title and adopting the said name of ‘ The Trustees of the Sheppard and Enoch Pratt Hospital ’ as ^the future title of said corporation. “ While I do riot wish to alter the operations and management in the working of the said asylum as now existing and being carried on, it is my wish and will that the income from my said residuary estate shall be used to complete the present buildings and grounds and for the erection of such other buildings or building as will accommodate not less than two hundred additional inmates, and after that the income from my aforegoing donation shall be devoted mainly to the care of the indigent insane in the most advisable manner at very low charges or absolutely free, as the trustees of said corporation in the exercise of their best judgment as to the rate to be charged may deem best and wisest to promote the object of this donation. “ Provided, however, and it is expressly my will, that in case the said Trustees' of the Sheppard Asylum fail to obtain from the General Assembly of Maryland at its first session after my death the amendment to the charter of said institution .hereinbefore stipulated and provided for, and fail to adopt the name for said corporation of the ‘ Trustees of the Sheppard and Enoch Pratt Hospital,’ then and in that case it is my will and I then give, devise and bequeath, in lieu of the aforegoing provision, the said residue of my estate to my niece, Ellen J. O. Phinney, and to my nephews, Gerard C. Tobey, Horace P. Tobey, J. Lowell Pratt, David G. Pratt, Edmund T. Pratt and Moreland L. Pratt, to be in that case set apart for and equally divided among them and the issue per stirpes of any of them who may be dead at the time of my decease, such issue to take the share to which its or their parent would, if living, have been entitled. “ I direct my executors, until it shall have been decided, as above provided, whether the said condition of ⁶¹⁷ my aforegoing devise and bequest of said residue will be performed; that is to say, whether the said corporation will obtain authority as aforesaid to change its title, and will in fact adopt the title above designated, to keep all buildings and improvements on my property insured and in good order and condition, and pay all charges and taxes thereon, and to collect the rents and income of said residue of my estate, and to invest the said net income in Baltimore City Stock, the same to be added to and constitute a part of the said residuary estate.” Mr. Pratt died in September, eighteen hundred and ninety-six. At the January session, eighteen hundred and ninety-eight, of the General Assembly of this State, a statute was enacted changing the corporate name of the Trustees of the Sheppard Asylum to “ The Trustees of the Sheppard and Enoch Pratt Hospital,” and this change was agreed to by the body corporate. The condition, and the sole condition, prescribed in the twelfth clause of the will having been complied with, it is now insisted: first, that the residuary clause creates a trust which is void because so vague and uncertain as to the objects to be benefited that it cannot be enforced, and that, therefore, the next of kin and heirs at law — a brother and a sister of the testator — are entitled to the property constituting the residuum; secondly, that the residuary clause creates a perpetuity and is therefore void; thirdly, that the Act of i8p8, ch. if, changing the name of the Sheppard Asylum to the Sheppard and Enoch Pratt Hospital, is unconstitutional and void, and that therefore the residuary estate passed to the alternative residuary legatees and devisees — a niece and six nephews. The last position will be considered in the next succeeding case.

As the second proposition is dependent entirely upon the disposition which may be made of the first one, we now proceed to examine and consider the first contention. It is safe to say that thousands of cases have been decided where the same or synonymous words in different wills have, in view of the unlike circumstances at ⁶¹⁸ tending their use and the contrariety of the contexts where they are found, received different, and often widely different interpretations; and it has in consequence frequently been observed that the effect given or the meaning ascribed to a_ particular word in the construction of one will is by no means a sure guide for its application or a reliable definition of its meaning when used in an apparently similar clause of some other individual’s will. And this, of necessity, must be true when we take into account the diversity of the subjects dealt with; the inequality in the capacity of the testators to clearly express their intentions; the flexible character of almost every word in a living and a constantly changing language; and the numerous and dissimilar designs and motives revealed in testamentary dispositions. If, without first finding from the four corners of the instrument what the testator’s purpose or intention really was, we turn for its ascertainment to the multitude of adjudged cases wherein the words he has used have been given a meaning in other wills, his design may be easily frustrated and though perfectly plain in itself, might and most probably would be so shrouded in obscurity as to be hopelessly unintelligible.

It is not meant by what has just been said to intimate that there are no established or recognized rules or canons of construction to which resort may be had in cases of doubt or difficulty, to solve a seeming uncertainty. These rules or canons are invoked, not to defeat, but to give effect when possible to the expressed intention. To avoid misunderstanding it may not be amiss to remark that we distinguish between rules of construction which are appealed to with a view of upholding an intention and rules of policy or of property which cannot be disregarded even though they defeat the most clearly stated purpose. If we lay out of view for the moment all canons of construction and critically read the words of the clause in controversy — for the simplest and most obvious method of discovering the intention of a testator is to read the language he has employed to give expression to that intention — his purpose is clearly manifested; and if that ⁶¹⁹ purpose, thus declared, does not invade some rule of property or is not repugnant to some settled policy of the law, it ought to, and certainly will, prevail.

What, then, has he said? He starts with the assertion that he had in his lifetime liberally provided for his niece and nephews who are the alternative residuary legatees and devisees. That he did do this is abundantly clear from the evidence. To each of the six nephews and to the niece and to another nephew who was not named as an alternative legatee, he gave in eighteen hundred and ninety and ninety-two, two hundred thousand dollars, or one million six hundred thousand dollars in the aggregate.

He therefore did not intend that they, or the appellants in this case who are not mentioned in the will, should receive any part of the estate disposed of by the residuary clause, unless as respects the alternative residuary legatees and devisees the condition on which the. gift to the Sheppard Asylum was made to depend should fail to be complied with by the omission of the Legislature to change the name of the asylum to the Sheppard and Enoch Pratt Hospital. We begin then with the postulate — and an obvious postulate it is — that the testator did not design these contesting parties to have any portion of his residuary estate at all; and if by reason of an interpretation that may be placed on his will, they do succeed to it, they will get it in spite of his unmistakable intention that they should not possess or enjoy any part or parcel of it whatever. But it is equally clear that he intended the Sheppard Asylum — • a corporation “ and its successors forever ” — to have and to hold this residuum; for he explicitly declares: “it being my intention and meaning to make said corporation, The Trustees of the Sheppard Asylum, the residuary legatee and devisee under this my last will and testament.” Nor does he stop with that emphatic declaration, for he follows it with a specific instruction to his executors “ to set over, transfer and convey by proper deeds, assignments and transfers the said residue of my estate to the said corporation, upon and subject, how ⁶²⁰ ever, to the following condition and bargain”; and then comes the provision with respect to the change of name. If the clause had stopped here there can be no pretense that an absolute estate in the personalty and a fee in the realty had been given, dependent on the single condition in regard to the change of the name; and when that condition was complied with by the passage and acceptance of the Act of 1898, ch. if, the title — -assuming the clause had stopped as just indicated — would have become indefeasible, provided the statute is valid and free from constitutional objections.

It is too clear for discussion that up to this point of the clause Mr. Pratt obviously intended the Sheppard Asylum to take by deeds, transfers and assignments from his executors, and not immediately under the will alone, the whole and entire interest and estate which he himself had in the residuary property. He gave it to the Sheppard Asylum upon a condition, a bargain, and when that condition and bargain had been complied with and entered into the corporation was "in a condition to enforce a conveyance and transfer from the executors to itself. The gift being made upon a single condition and bargain and being made in terms that import an absolute donation upon a compliance with the condition and a performance of the bargain, it is not to be assumed, in the absence of an express declaration, certainly not upon a bare construction, when later on he uses words looking to the disposition to be made of the income that may arise from the donation, that he intended by those words to convert the original gift into a gift merely in trust — to cut down the absolute estate by' engrafting on it through the income an imperative trust — particularly when the words thus relied on to accomplish that result are capable of an interpretation which will not bring about such a palpable conflict or inconsistency in one and the sámé clause of the will. There is a peculiar significance in the use of the word ' “ bargain ” as indicating the nature of the estate given by the residuary clause.

The gift is made upon something more than an ordinary condition, for the condi ⁶²¹ tion is coupled with a term that imports the characteristics and the elements of an obligatory contract. The testator contracts — he bargains — to give the Sheppard Asylum the residuum of his estate provided the Trustees agree to include his name in the title of the body corporate. The Trustees of the Sheppard Asylum are to become the owners of the property for and upon the consideration which he specifically named. Can it be doubted or questioned when this bargain was closed —offered by him and accepted by the body corporate and sanctioned by the General Assembly — that the right of the corporation to possess and enjoy as its own, the fruits of the contract was complete?

If this right was complete and perfect, as we think it manifestly was, then a beneficial, an actual, ownership must have been intended by the testator to be vested in the Sheppard Asylum; and it took, or was designed to take, an absolute estate. After making this absolute donation the testator declares that whilst he did not wish to alter the operations and management in the working of the Sheppard Asylum as then conducted, “ it is my zvish and will that the income from my residuary estate shall be used to complete the present buildings and grounds and for the erection of such other buildings or building as will accommodate not less than two hundred additional inmates, and after that the income from my aforegoing donation shall be devoted mainly to the care of the indigent insane in the most advisable manner at very low charges or absolutely free, as the trustees of said corporation in the exercise of their best judgment as to the rate to be charged may deem best and wisest to promote the object of this donation.” This is the clause which, it is claimed, creates a trust, and was intended to create a trust; and which trust when created, it is further insisted, is void for uncertaintjc We are thus brought face to face with the question: Does this clause, located as it is, following a gift that is unmistakably absolute, cut down the estate thus given to a trust estate? Does the clause raise an imperative trust? ⁶²² As we have said, and now repeat, it cannot be assumed in the absence of an express declaration that the testator meant to undo what he had just done — that he intended to convert what he was so careful to describe as an absolute estate into one far different and less unlimited. He has not said that he gave the donation upon trust.

He has said all he well could say to indicate the contrary. If, however, a trust has been created we find no manifestation of an intention to create it, unless the words “ it is my wish and will ” and the words “ shall be devoted,” furnish sufficient evidence of such a purpose. The effort therefore is to thrust upon this clause a construction that will make it create a trust, and then to have the trust so raised by construction declared void; and thus to defeat in toto what the testator has declared to be his donation to the Sheppard Asylum. Now, how is this sought to be accomplished?

With great diligence, zeal and ability vast numbers of cases construing the words “ wish ” and “ will ” and kindred words, have been collected on the briefs. In those cases these words and similar ones have been held to create trusts, and it is contended they accomplish that result here. It is undoubtedly true that these and other like precatory words will, under conditions but not invariably, raise or imply a trust. It would be an almost endless, as it certainly would be a wholly unprofitable, task to enter upon an examination of these numerous cases.

The whole question is one of the interpretation of each particular will. Whilst the doctrine is settled that precatory words may raise a trust, the application of the doctrine to individual cases depends entirely upon the provisions of each separate will. Negro Chase v. Plummer, 17 Md. 177 . “ Precatory words may be used which, standing alone, would under the decisions create a trust, but they may be qualified and controlled by other expressions showing that the gift is absolute; and that every thing is left to the discretion of the devisee or legatee,” 2 Pom. Bq., sec. 10x6. “ Expressions suffi-' cient per se to create a trust may be deprived of their effect by the context expressly declaring or by implica ⁶²³ tion showing, that no trust was intended.” i Jar. on Wills (5th Am.

Ed.), star p. 385. “ In some cases where the strongest terms were employed, relief has been denied,” that is, a trust has not been declared. Negro Chase v. Plummer, supra. Whatever may have been the results reached in the earlier cases on this subject there is a strong tendency nowadays to restrict the doctrine of precatory trusts within more reasonable and somewhat narrower bounds than formerly; and Mr. Pomeroy states that upon the authority of more modern decisions the whole doctrine may be summed up in a single proposition. And this is the proposition which he announces: “ In order that a trust may arise from the use of precatory words the Court must be satisfied from the words themselves taken in connection with all the other terms of the disposition that the testator’s intention to create an express trust was as full, complete, settled and sure as though he had given the property to hold upon a trust declared in express terms in the ordinary manner.

Unless a gift to A with precatory words in favor of B is in fact equivalent in its meaning, intention and effect to a gift to A ‘ in trust for B,’ then certainly no trust should be inferred.” 2 Pom. Eq., sec. 1016. The same doctrine is stated in Story Eq. Jur., sec. 1069, in this way: “Accordingly, in more modern times, a strong disposition had been indicated not to extend this doctrine of recommendatory trusts; but as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.” Whether or not a trust has been created in any given case.by the use of precatory words is, in the last analysis, a question of construction and interpretation to ascertain the intention: Did the testator by the use of the words he employed intend to create a trust? “ The effect of expressions of this nature in creating a trust depends entirely on the supposed intention of the donor (or testator) to be gathered from the tenor of the instrument.” Hill on Trustees, 114, quoted with approval in Williams v. Worthington, 49 Md. 579 . ⁶²⁴ In Sale v. Moore, 1 Sim. 534, Sir Anthony Hart, V. C., said: “ The first case that construed words of recommendation into a command made a will for the testator; for every one knows the distinction between them.” In Wright v. Atkyns, 1 Ves. &.B. 313, Lord Eldon remarked: “ This sort of trust is generally a surprise on the intention, but it is too late to correct that.” In Meredith v. Heneage, 1 Sim. 542, Chief Baron Richards, in commenting on prior decisions, observed: “ I entertain a strong doubt whether in many or perhaps in most of the cases, the construction was not adverse to the real intention of the testator.

It seems to me very singular that a person who really meant to impose the obligation established by the cases should use a course so circuitous,