Robinson v. Bonaparte

McSherry, C. J., delivered the opinion of the Court. This appeal comes up on a special case stated under the forty-seventh General Equity Rule, and the three questions propounded for decision relate to a portion of the estate disposed of by the last will of Walter R. Abell, deceased. By the second clause of that will all the testator’s property both real and personal was devised and bequeathed unto his two brothers who were then living, upon trust, first, to value each and every parcel of his real estate and then to set apart one-third portion in value thereof, and the whole of that one-third portion to manage according to their best discretion and to collect the rents, issues and profits thereof, and to pay quarterly the clear rents, issues and profits to his wife Philomena Abell for the period.of her natural life ; and secondly, to value, each and every part of his personal estate and then to set apart one-third portion thereof and to transfer and make over that one-third portion to his wife as her.absolute property in bar of her share in the personal estate, belonging to the testator. Then by the third clause the following provision is made: “And in trust to apply so much of the clear rents, issues and profits of the remaining two-thirds parts in value of my real estate, during the lifetime of my wife, and of all of my said real estate, in whatsoever form the said two-thirds, or whole, real estate may be invested, after the death of my said wife, or of all my said real estate, if my said wife should die in my lifetime, ar.d of the remaining two-thirds parts in value of my personal estate, during the lifetime of my said wife, and of all my said personal estate, in whatsoever form the-same may be. ⁶⁵ invested, if my said wife should die in my lifetime, as may be necessary and fully sufficient, for the proper education and maintenance of my children and of their respective issue, until the expiration of the period of twenty years after my death and the death 'of my wife; at which period of time the said real and personal estate then forming part of the trust hereby created, in the form in which the same shall then be invested, together with any increment thereto, or surplus of income, or property, proportionably arising therefrom, and forming part of said trust, shall vest absolutely in my children, as tenants in common ; the issue of any deceased child taking; by substitution, the share which his, her, or their parent, would have taken if, living at such period; and I direct that until such time of vesting of the said property in my said children, or their issue as aforesaid, shall arrive, the share of any daughter, or of any daughter of any daughter, in the said rents, issues and profits thereof, shall be paid to such daughter, or daughter of any daughter, upon her separate receipt, free from the control of any husband she may have.” Then follow other-clauses which give to the trustees very large discretionary powers.

The will is dated July 3rd, 1889. Mr. Abell died January 3rd, 1891, leaving a widow and three children by a former marriage. Two of these children are daughters and both have since married. The other is a son, who is still under twenty-one years of age.

The two trustees named in. the will subsequently died but not until after they had entered upon the discharge of the trusts ■ created by the clause just quoted; and later on Mr. Charles J. Bonaparte was appointed, substituted trustee in their place. Mr. Bonaparte ascertained that the former trustees had accumulated from unexpended income, and had invested a fund amounting to $76,357.93,. which they called “surplus income investmentsand he was-confronted with the question as to who should determine what amount of the accruing income arising on the trust estate ought to be expended and in what proportions it ought to be disbursed for the cestuis que ¿rustent, who are the three children of the testator. There arose, too, a doubt as to the length of ⁶⁶ time the above mentioned trust was intended to continue. In view of this situation the pending amicable case stated was made up and the following specific questions were submitted for decision: First, who is authorized to determine what amount may be necessary and fully sufficient for the proper education and maintenance of the children of the testator and of their respective issue during the continuance of the trust?

Is it a matter to be determined from time to time by the Court or by the substituted trustee and his successors in his or their discretion, subject to the approval of the Court; or is it a matter within the absolute discretion of the substituted trustee and his successor and how is the said matter to be determined? Second. Is it the.duty of the substituted trustee after deducting each year from the entire net income from the trust estate in his hand the amount necessary for the education and proper maintenance of all the children of the testator and of their respective issue, to invest the whole surplus of the said income as a part of the corpus of the trust estate, or if not the whole, for what purposes'may he withhold from said investment a part of the said income? Or should he divide the whole net income each year into three equal parts appropriating one of said parts, to each of said three children and after deducting from.the parts so appropriated to each child the amount expended for the education and maintenance of such child or its issue, to hold the remainder for the individual benefit of such child and its issue during the continuance of the said trust and at the end of said trust to form part of the said child’s share of the corpus of the trust estate ?

Or should he pay over to the said children of the testator, or to any one of them, or to the issue of any of them, before the expiration of the period of twenty years after the death of the said widow of the testestator, the whole or any portion and, if any, what portion, of the income from the said trust estate in his. hands, over and above what may be determined to be necessary and fully sufficient for their education and maintenance? and if so when should he pay it and to what person ? Third. How should the $76,357.93 hereinbefore mentioned be dealt with? ⁶⁷ The Court below answered these interrogatories in the following way by its decree : “This cause having been submitted upon a special case stated in conformity with the 47th and 48th General Equity Rules, the counsel for the parties were heard, and the proceedings read and considered. “It is thereupon this twenty-fifth day of February, A. D. 1905, by the Circuit Court of Baltimore City, in answer to the questions in said special case propounded, adjudged, ordered and decreed. That by the true construction of the last will and testament of Walter R. Abell, it is the duty of the trustee to apply, during the continuance of the trust to the education (during its progress), and maintenance of Marie Louise Edwards, Sallie Sisson Robinson, and Walter R. Abell, the children of the said Walter R. Abell, the testator, and their respective issue, so much of the clear rents, issues and profits of the trust estate coming into the hands of the trustee under the third article of said will as shall be from time to time fully sufficient for the education and maintenance respectively of each of said children and their respective issues, the said clear rents, issues and profits to be treated by the trustee as a common fund applicable to the purpose of the education and maintenance of said children and their respective issue (no one-of said children or of their respective issue having a separate right in said fund), and the amount to be applied by such trustee to each of such children and their respective issue shall be ascertained and determined upon by the trustee, from time to time, with the concurrence of this Court, upon the report made to it by the trustee as hereinafter set forth; and in fixing, from time to time, upon the amount of the clear rents, issues and profits to be applied to the maintenance and education of the said children and their respective issue, regard shall be had to the wants and requirements of the said children of the testator and of their respective issue, in connection with, and as affected by their position in the community in which they live and their social station and surroundings. “It is further adjudged, ordered and decreed, that the trus ⁶⁸ tee, as soon after'the passage of this decree as he can conveniently do so, shall determine what amount out of the clear rents, issues and profits of the trust estate should constitute the yearly allowance, in his judgment for the maintenance' of the said Marie Louise Edwards, and of the said Sallie Sisson Robinson, and what amount should constitute the yearly allowance for the maintenance and education of Walter R. Abell (his education being still in progress), and make report thereof to this Court in the case of Arunah S. Abell and Walter R. Abell v. Philomena M. Abell et al., No. 3315A Docket No. 44A, folio 77, in which jurisdiction over said trusts has been assumed by this Court, and give notice of said report to the parties in interest, in order that if the amounts so fixed by said trustee shall meet with the concurrence of this Court, an order may be passed by it to that effect for the protection of the trustee, the Court reserving to itself the right to make changes in the said amounts.

And the trustee whenever and as often as in’ his judgment, any change should be made in either of the amounts above directed to be ascertained by him, is hereby authorized and directed to make such changes and report his action in regard thereto to this Court in order that appropriate orders may be passed in respect thereto; giving notice of any report to the parties in interest. And it is further adjudged, ordered and decreed, that the sum of $76,357-93 mentioned in the special case stated as “Surplus Income Investments,” being the amount of income derived from the trust estate since the death of the testator, and not