Prince De Bearn v. Winans

SohmttgkeEj J., delivered the opinion of the Court. The appeal in this case was taken from a decree of Circuit Court No. 2 of Baltimore' City dismissing a bill filed by the appellant. The purpose of the bill was to procure the construction of a deed of trust and of a will executing a power of appointment conferred upon the testatrix by the deed; and also to have certain proceedings of the Orphans’ Court of Baltimore City declared void and the releases given in pursuance thereof cancelled and set aside. The deed of trust was made in favor of the appellant’s wife for her life by her father, on the eve of her marriage, and it gave to her an unrestrained power of testamentary appointment of the corpus of the trust estate.

By her will, made after her marriage, she gave her entire estate absolutely to her husband. After her death the Orphans’ Court undertook to administer upon the property which had passed under the deed and the appointment, consisting of railroad bonds, as if it had been her own property, and distributed it one-third to the appellant as her surviving husband, and the remaining two-thirds to her two surviving children, for whom he was made guardian. The bonds were delivered to the appellant, one-third in his own right and the residue as guardian for his children, and he executed releases therefor to the administrators of his wife’s estate and the trustees under the deed of trust. Within two and a half months after receiving the bonds and executing the releases, the appellant filed his bill in the present case insisting that upon his wife’s death the entire corpus of the trust estate became his individual property in his own right under the operation of the deed of trust, by virtue of the devise in his favor in her will, which constituted an exercise of the power of appointment conferred on her by the deed; and that the whole of the proceedings bv ⁴⁶¹ which two-thirds of the property had been awarded to his children were erroneous and void, and that he was entitled to have them annulled and set aside.

After hearing the case the learned judge of the Court below held that, through the execution of the power of appointment by his wife in her will, the appellant became entitled in his own right to the whole of the property conveyed to the trustees by the deed of trust, but the bill was dismissed because the judge was of the opinion that the appellant had forfeited his right to relief in equity by his acquiescence and co-operation in the various steps by means of which two-thirds of the property had been awarded to his children. An outline of the material facts, appearing in.the record, sufficient for the purposes of this opinion, may.be stated as follows: On June 19th, 1905, Ross R. Winans, an American citizen residing in Baltimore, but then temporarily in Paris, executed in the latter city a deed of trust to himself and Ferdinand C. Latrobe, also of Baltimore, conveying to them railway mortgage bonds of the par value of $284,000, upon trust, first, “to receive the interest and income thereof and apply the same to the use of Beatrice Winans (the grantor’s daughter) during her life, free from the disposal or encumbrance or the control of any husband and as her separate estate; * * *” and, secondly, “upon the further trust, upon the death of the said Beatrice Winans, to dispose of the capital of the fund hereby created in such manner and to and among such person or persons and in such amounts as the said Beatrice Winans may by a valid will and testament duly executed appoint, and upon such limitation by way of trust or otherwise as in the discretion of the said Beatrice Winans may be lawfully devised.” There were other alternative trusts to take effect if Beatrice Winans died intestate, but as they never became operative it is unnecessary to notice them here. The deed also contained provisions for changes in the investment of the ⁴⁶² corpus of the trust fund and the filling of vacancies which might occur in the trusteeship. The deed of trust was made in contemplation of the marriage, which occurred a few days after its execution, of Beatrice Winans to the appellant, the Prince of Bearn and Chalais, who is a French citizen engaged in the diplomatic service of his country.

A marriage settlement was also made between the Prince and his intended wife prior to their marriage. The object of the deed of trust and marriage settlement were to provide for Miss Winans after her marriage a suitable income and to secure to her the separate enjoyment of her estate. On June 29th, 1905, after Miss Winans had become the Princess of Bearn and Chalais by her marriage to the appellant, she executed a will in Paris giving him her entire estate. The will, omitting the formal parts, was in the following language: “I give and bequeath to the Prince de Bearn, my husband, the totality of all my property, personal and real, that I may leave at my decease, without exception; consequently I institute him as my universal legatee.

I institute equally the Prince de Beam, my husband, to be my testamentary executor.” On October 17 th, 1907, the Princess de Beam (nee Winans) died at St. Petersburg, Russia, where her husband was serving as secretary of the French Embassy. She left two children surviving her. On November 7th the appellant wrote from St. Peters-burg to Mr. Winans at Baltimore that his wife Beatrice had made a will in his favor, and ashed whether he should forward it to America or send it to Mr. Winans’ lawyer. In the letter the appellant said: “Naturally, my intention is to heep Beatrice’s fortune for her children, and turn it over to them at their majority, but I want to fulfill all the formalities, to have it deposited under my name and to be able to touch the income quarterly as formerly.” ⁴⁶³ Mr. Winans, in response to the appellant’s letter, cabled him on November 17th, 1907, to take the will to Mr. Jacobus in Paris, who would have it legally probated and direct the trustees as to the transfer of the securities, and also prepare releases for them.

Mr. Jacobus was an American lawyer attached to an advocate’s office in Paris, but was not a member of the French Bar. Both he and Mr. Kelley, to whose office he was attached, had been employed by Mr. Winans to represent him in the preparation of the deed of trust and the marriage settlement. Mr. Winans also at the same time wrote to Jacobus informing him that the will would be brought to his office by the appellant, and telling him where to find the deed of trust, and requesting him to settle up the matter as soon as he could. In Mr. Winans’ letter was enclosed one from Mr. Latrobe to Mr. Jacobus informing him that the trustees were ready to transfer the securities “to whoever under the will and the laws of France may be entitled to receive the same.” The appellant on receipt of Mr. Winans’ cablegram took the will to Mr. Jacobus in Paris, informing him that he had brought it at Mr. Winans’ request.

Mr. Jacobus read to him the letters from Mr. Winans and Mr. Latrobe, and discussed the situation with him at some length. He told the appellant that, as his wife had left two children, they were under the French law entitled to a “reserve” of two-thirds of her estate, and he was entitled, under her will, to only one-third of it, and advised that the will be sent to America for probate. The appellant stated that he had understood the effect of the deed of trust to be to confer on his wife the power to dispose of the whole of her estate, but, on being advised by Mr. Jacobus that his wife, having become French through her marriage to him, her estate must be divided according to the French law, he replied that he would leave the matter to Mr. Jacobus and Mr. Winans, as he knew that the latter would do the proper thing. Jacobus wrote to Mr. Winans on December 6th, 1907, informing him that he had received the will from the appel ⁴⁶⁴ Iant and sent it to him by registered mail.

He also stated as a first impression that, as the Princess de Bearn had become a French citizen by her marriage, her children had an interest in her estate and promised to examine the matter more closely and give him exact advice later. On December 30th he wrote again to Mr. Winans that further examination had convinced him that the Princess could not dispose of more than one-third of her entire estate because of the fact that she left two children, and quoted to him in support of that view two sections from the French Civil Code restraining the donation by persons of their own property by will. Those sections, when translated, read as follows: Section 893. “No one can dispose of his property gratuitously except by a donation inter vivos or by a will under the terms hereinafter established.” Section 913. “Donations either by instrument inter vivos or by will cannot exceed the half of the property of the donor if he leaves at his decease an only child; they cannot exceed one-third of his property if he leaves two childa’en, or one-quarter if the leaves three children or more.” Jacobus in the same letter informed Mr. Winans that under the French law the father was the guardian of his minor children and as such had the right to receive and receipt for any property coming to them, and suggested that he and Mr. Latrobe have the French law proven to the Baltimore Court and have it appoint either the appellant or some residents of Baltimore guardians for the appellant’s children and let their estate be paid over to the guardian who could execute releases to the trustees. In reply to the foregoing letter Mr. Latrobe wrote to Jacobus on January 10th, 1908, that Mr. Winans preferred that the appellant should be made guardian of his children and would adopt his (Jacobus’) suggestion and when the will was probated apply to the Court to order the payment to the appellant as guardian of his two children their two-thirds of the estate, but that the appellant would have to give a proper guardian’s bond.

In the same letter Jacobus was re ⁴⁶⁵ quested to prepare two releases to Winans and Latrobe as trustees under the deed of trust, one from the appellant for the one-third of the trust estate coming to him in his own right and the other from him as guardian for his children’s two-thirds. After this correspondence the will of the Princess de Beam, which had been offered for probate in the Orphans’ Court of Baltimore City, was on the 10th of February, 1908, formally admitted to probate and letters of administration c. t. <h. upon her estate were granted to Ross R. Winans and Ferdinand C. Latrobe who duly qualified. Those gentlemen then proceeded to administer the estate just as if the railroad bonds, constituting the corpus of the trust estate under the deed of trust, had been the property of the testatrix in her own right. They included those bonds in the inventory returned by them of her personal estate in which they were appraised at $332,880.

They charged themeselves with them in their account and the net proceeds thereof, remaining after paying the costs of the administration including a commission of $8,518.15 allowed to the accountants, and certain income paid to the appellant pending the administration was distributed, “under the laws of France” as recited in the account, one-third to the appellant in his own right and the remaining two-thirds to him as the guardian of his two children. Mr. Winans sent his half, of the net commissions allowed to the administrators, to the appellant, but Mr. Latrobe retained his half. During the -period covered by the administration amicable relations existed and friendly correspondence took place between the appellant and Messrs. Winans and Latrobe, and he made no objection to them to the course which they were pursuing but left the conduct of the entire transaction to them, saying to them, through Mr. Jacobus, that he desired to be guided in the matter by their advice.

When however toward the close of the administration Jacobus presented to the appellant for execution a guardian’s bond', which Mr. Latrobe had prepared and forwarded to ⁴⁶⁶ Paris, lie demurred and said that the Erench law did not require a guardian to give bond and if he was to be guardian after that law none ought to be asked of him. He subsequently said to Mr. Archibald, to whose office Jacobus was attached, that he had concluded to follow the advice of a friend with whom he had conferred and take the bond back to America and “talk it over with his father-in-law” (Mr. Winans). The appellant testified that the friend whom he had consulted was Mr. Duquaire, a retired French advocate and an old family adviser, who had told him that the French law required no bond of a guardian but that he could not tell him what he must do in the present situation and advised him to leave it to Mr. Winans. The appellant then came to Baltimore arriving there after the distribution account of the estate had been stated in the Orphans’ Court.

He first visited Mr. Winans to whom he stated that he had been informed' that it was not necessary to settle the estate according to the French law and that he was entitled to the whole of it, or in any event he ought not to be asked to give a bond as guardian when none was required by the French law. Mr. Winans expressed surprise at the appellant’s attitude saying that he had all along supposed that he and Mr. Latrobe were proceeding in entire accordance with his (the appellant’s) wishes and had from time to time explained to him through Mr. Jacobus what they were doing and understood that he agreed with Mr. Jacobus that the plan of settling the estate under the latter’s advice was the only proper one. The appellant replied that he had not understood the matter and thought it would be wise to have a consultation with lawyers in New York knowing something about international law. Mr. Winans then said that the estate was then so nearly settled that he did not know whether any change could be made in it, and informed the appellant that he would have to see Mr. Latrobe about that.

After that the appellant had several interviews with Mr. Latrobe stating his views on the subject of the estate and his ⁴⁶⁷ own rights therein substantially as he had done to Mr. Winans. According to the appellant’s account, when he stated his views to Mr. Latrobe the latter replied that the trustees, had acted according to the directions of Mr. Jacobus who had explained to the appellant what was being dope. Mr. Latrobe suggested to the appellant that if he wanted to discuss the matter he might go to see the Chief Judge of the Orphans’ Court who would explain it to him. The appellant assenting to the suggestion, Mr. Latrobe took him to the Orphans’ Court and introduced him to Chief Judge Block, stating' at the same time what his difficulty was.

Judge Block informed him that the settlement had been carried out according to the French law and that it was practically impossible to change it, and suggested to him to follow the advice of Mr. Latrobe as he was a lawyer. On the return from the Court to Mr. Latrobe’s office the appellant reiterated his desire to have the opinion of New York lawyers on the case when Mr. Latrobe assured him that everything had been done according to the French law under the advice of Jacobus and further said that if the settlement of the estate were delayed he knew Mr. Winans would withdraw from the administration and that everything would be tied up, perhaps for many years. The appellant thereupon ceased his opposition and' executed the bond and the estate was distributed in accordance with the account stated in the Orphans’ Court. Mr. Latrobe’s recollection of his interviews with the appellant was not very distinct as to details.

He remembered the visit to the Orphans’ Court hut said that the interview with Judge Block consisted only of “passing pleasantries of the day” and there was no explanation of the settlement of the estate then made to the appellant. But in a letter subsequently written to the appellant by Mr. Latrobe he said of this visit to the Orphans’ Court: “I also had your own verbal assurance, after we had together visited the Orphans’ Court of Baltimore City where the Chief Judge had ex ⁴⁶⁸ plained to you the distribution, that you were satisfied and accepted the decision of the Court.” Judge Block's recollection of the visit to his Court agreed with that of Mr. Latrobe and he was positive that he had not undertaken to explain to the appellant the nature of the settlement .of the estate or asserted its correctness. After the settlement of the estate, in accordance with the administration account, had been consummated and releases given to Messrs. Winans and Latrobe, the appellant was advised by counsel in New York that the settlement had been erroneously made that he could obtain relief from it by a proper proceeding in equity.

He applied to Mr. Winans and Mr. Latrobe to consent to open up the case, and iipon their declining to do so he filed the present bill against Messrs. Winans and Latrobe as trustees under the deed of trust and administrators c. t a. of his wife’s estate, making defendants also of his infant children. The bill, after alleging the facts of which we have given a resume, averred that the appellant, in his ignorance of the law had been induced to abstain from opposing the distribution of the trust property made by the Orphans’ Court as part of his wife’s estate, by improper influence and persuasion exerted upon him by Mr. Latrobe who was the managing trustee and the legal adviser of his co-trustee, and by the form and appearance of independent advice from the Judge of the Orphans’ Court procured by Latrobe to be given to him. It prayed for a construction of the deed of trust, a declaration that the will of his wife constituted a valid exercise of the power of appointment conferred upon her by the deed, and a determination that under the deed and the appointment he became entitled, at her death, to the entire property held by the trustees under the deed.

It also prayed that' the proceedings of the Orphans’ Court attempting to dispose of the property as part of her estate be declared void and that the releases given by him to Winans and Latrobe as trustees and administrators be cancelled and for an account from Mr. Latrobe of the sum retained by him as commis ⁴⁶⁹ sions, and for general relief. The hill acquitted Air Winans of any thought or desire of gain or advantage to himself in the premises and disclaimed any intention to charge either him or Judge Block with any purpose to injure or mislead the appellant. The answers of the adult defendants while admitting most of the facts of the narrative of events contained in the bill, did not concede the legal operation and effect attributed by the bill to the deed of trust and the will of the appellant’s wife, but asserted that those instruments under the circumstances of the case had the opposite effect, and that the administrators appointed by the Orphans’ Court had come lawfully into possession of the property covered by the deed and that the proceedings of that Court in relation to the property were- not void. They further alleged that the entire dis-' position of the property was made with the full knowledge and assent of the appellant and in accordance with what the defendants were led by his conduct and statements to believe were his wishes.

Air. Latrobe in his answer denies that he dissuaded the appellant from consulting another lawyer before completing the distribution of the property or that he advised or procured him to ask advice or explanation of the distribution from any Judge of the Orphans’ Court or that any such advice or explanation was ever given in his presence to the appellant. Both answers denied' the right of the appellant to the relief prayed for in his bill. We agree with the learned Judge below that, under the deed of trust and the will of the appellant’s wife, he became entitled in his own right at her death to all of the property then held by the trustees under the deed.

Sec. 323 of Art. 93 of the Code of this State provides that: “Every devise or bequest purporting to be of all real and q>ersonal property belonging to the testator shall be construed to include also all property over which he has a general power of appointment, unless the contrary intention shall appear in the will or codicil containing such devise or bequest.” ⁴⁷⁰ It is also well settled in this State that in snch cases the appointee takes title not under the will making the appointment but directly from the donor of the power and “in like manner as if the power and the instrument executing it had been incorporated in one instrument.” Conner v. Waring, 52 Md. 732-3; Price v. Oherbonnier, 103 Md. 111 . It is the intent of the donor of a power that governs in its construction (Nevin v. Gillespie, 56 Md. 327 ), and it is generally held that it should receive an interpretation in accordance with the law of his domicile. 31 Cyc. 1056; Lane v. Lane, 64 L. R. A. 849, and cases cited in notes at pages 892, 896 et seq. That rule is, in our judgment, applicable with especial force to a case like the present one where the domicile of the donor and the location of the property subject to the power are the same. Even if we were to hold that because the property consists of personalty, its disposition should' be governed by the law of France, of which country the testatrix had become a citipen, the French law, in the absence of proof to the contrary, will be presumed to be the same as ours.

McClellan v. Kennard, 8 Md. 230 ; Haney v. Marshall, 9 Md. 194 ; State v. P. & C. R. R., 45 Md. 41 . There is no proof in this case of the law of France touching the interpretation of powers or their