Savin v. Webb

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order passed on a petition filed in a case which was before us upon a previous appeal, in Webb v. Webb, 92 Md. 101 . By reference to that case it will appear that the late William Prescott Webb, of Baltimore City, by his last will gave a legacy of five thousand dollars to each infant child of his deceased son, George Prescott Webb, to be paid to the child at such time as the executors named in the will find convenient but not before he arrived at twenty-one years of age. . A controversy having arisen among the parties interested in the estate of the testator as to whether these legacies were vested or contingent and also as to the date from which they ■ bore interest, a bill was filed by the grandchildren against the -executors in the Circuit Court of Baltimore City for a construction of the will and for an administration of the legacies ■ as a trust fund under the supervision of the Court until the time arrived for their payment to the legatees.

In that proceeding an order of Court was passed, after an answer had been filed and testimony taken, with the assent of the execu.tors in which they were treated and designated as trustees of the legacies and were required to give bond for the discharge of their trust and to pay a monthly sum to the guardian of •the infant legatees until the further order of the Court. That order was complied with, but the case came here upon on appeal from a subsequent order ratifying an auditor’s account and we found it necessay, in deciding the issue then presented to us, to construe the will and pass- upon the nature of the legacies. We there held that the legacies to the grandchildren were vested and not contingent and it appearing from the evidence that the testator had assumed to stand in loco parentis to the legatees, we also held that the legacies bore interest from the date of his death. We further held that the case should be ⁵⁰⁶ retained by the Circuit Court for the further administration of the legacies as being in the nature of a trust fund.

Since the case was last before us Wilbur Morrison Webb one of the legatees died before' reaching the age of twenty-one years and letters of administration on his personal estate issued out of the Orphans’ Court of Baltimore City to the present appellants. After they had duly qualified as administrators they filed their petition in the pending case in the Circuit Court setting out the facts which we have mentioned, and asserting their title to the legacy of $5,000 held for the benefit of their intestate by the appellees as executors and trustees under the will of William Prescott Webb, and praying for an order of Court directing its payment to them. The appellees answered the petition admitting that they were directed by the will of William Prescott Webb to pay the legacy of five thousand dollars to the petitioner’s intestate, Wilbur M. Webb, but insisting that they could not be compelled to pay it “ before the time when the said Wilbur Morrison Webb would have reached the age of twenty-one years.” The Circuit Court upon a hearing of the matter refused to direct the payment of the legacy and passed an order dismissing the petition. From that order the present appeal was taken.

We think the learned judge below erred in his action on this petition. The appellees do not in their answer deny that they have the five thousand dollars in their hands or assert that the fund held by them for the payment of the legacies to the grandchildren is so invested or in such condition that it would be inconvenient or disadvantageous to raise the $5,000 with which to make the payment, nor do they suggest any other reason for declining to make it than the inability in their opinion of the appellants to compel it to be made before the time when the legatee if living would have reached his majority. It is not necessary in this