Second National Bank v. Second National Bank

Sloan, J., delivered the opinion of the Court. All parties to this case, except the trustees, appealed from the decree construing a will which undertook to provide for the establishment and maintenance of a charitable institution in Prince George’s County. Dr. Orwin E. Howe, a resident of Washington, D. C., died November 6th, 1935, leaving a will executed August 15th, 1924, by which he appointed the Second National Bank of Washington, D. C., and his wife, Minta G. Howe, executors, and also appointed them trustees to hold and manage the estate until the expiration of the life estates created by the will, with remainder, after the payment of $5,000 to the Baptist Home for Children of the District of Columbia, to a corporation to be formed to be known as “Dr. O. E. Howe Home for Unfortunate Girls.” The estate, according to the bill of complaint, consisted of two farms in Prince George’s County, four farms in Worcester County, and several properties in the District of Columbia, assessed in the aggregate at $92,612, and personal property estimated to be worth $175,000. The executors filed their bill of complaint in Prince George’s County, praying the Circuit Court of that county (1) to assume jurisdiction of the trust created ⁵⁵⁰ by the will, (2.) to declare void or valid the bequest for the purpose of founding the “Dr. O. E. Howe Home for Unfortunate Girls,” and to declare how the plaintiffs shall make distribution of the estate, so far as the same may be controlled by the laws of the 'State of Maryland, and (3) general relief.

The defendants named in the bill of complaint are the Second National Bank of Washington, D. C., and Minta G. Howe, trustees, and Percy L. Howe and Charles E. Howe, sons, and Dora Ida Hays, daughter, heirs at law and next of kin of the testator, and cestuis que trustent under the will. The trustees each filed a noncommittal answer, but the other defendants assailed the provision for the establishment of the home, and prayed that it be declared void. There was no one in court speaking for the will; it had no friends. Aside from the devise and bequest for the Home, the validity of the will was not questioned.

The case was submitted on bill and answers, and, from a decree sustaining the will, the plaintiffs and the sons and daughter of Dr. Howe appeal. As all with which we are concerned is the item of the will providing for the establishment and conduct of the “Dr. O. E. Howe Home for Unfortunate Girls,” it is necessary to quote that item, which is: “All of the balance of my said estate, including my farm in Prince Georges County, Maryland, on the river front, held in trust as aforesaid, shall be paid over, and delivered to, a corporation to be formed to be known as ‘Dr. O. E. Hówe Home for Unfortunate Girls.’ The incorporators of said corporation, who shall also act as its first Board of Trustees, shall be nine (9) in number, with power in said incorporators and the said Board to increase the number as may be necessary to comply with the existing law. The said original Board and the said Trustees shall be nominated by my wife and children within a period of one (1) year after my death. In the event, during the lifetimes of my wife and/or any of my children, any of such nominees shall die, then my wife and/or my surviving children shall nominate ⁵⁵¹ such other person or persons in place of such deceased nominees, to the end that at the death of the last survivor the said nominees shall consist of nine in number.

If, however, there should be a lesser number, by failure to nominate in place of the deceased nominees, then the said persons nominated then living shall name such additional persons to constitute the said nine incorporators and trustees. And the said Board of Trustees, after the formation of said corporation, shall take the legal title to all of my real estate held in trust, as aforesaid, and all of the personal property held in trust, as aforesaid, for the purpose of building on the said farm in Prince Georges County, Maryland, a suitable building as a home for unfortunate girls, to be known as ‘Dr. O. E. I-Iowe Home for Unfortunate Girls.’ And the amount that may be required for the building and furnishing of said Home shall by said Trustees be paid from the said trust fund received by said corporation, in trust as aforesaid; and the balance of my estate remaining shall be held as an endowment fund, the interest of which shall be used by the said corporation for the maintenance and support of said institution. The term of office of said trustees, and the method of election of trustees from time to time, and the rules and regulations regarding the admission of unfortunate girls, and the maintenance and conduct of said institution, and the full scope and object thereof, shall be formulated, set forth in legal form, and signed, by my said wife and my children and by the Trust Officer of the Second National Bank, who are hereby authorized and empowered to fully execute my desires and wishes in this regard, all of which shall be binding upon the said corporation, and only changed by the unanimous vote of the Board of Trustees.” Mrs. Howe renounced the bequest in trust for her, and elected to take under the law. The distribution to her out of the personal property will be under the law of the District of Columbia, and, out of the real estate, she will take as an heir a one undivided one-third interest in accordance with sections 1, 2, and 3, article 46, and ⁵⁵² section 126, article 93, of the Code, unless she elected within six months of her husband’s death to take the common law dower.

Code, art. 46, sec. 4. A copy of the renunciation or election, as the case may be, is not in the record, so that we cannot say definitely what interest she takes in the real estate of the decedent in this state. The result of the renunciation, however, will be to increase the income of the other life tenants named in the will, and to reduce the corpus of the estate, but will not divert the remainder from its course of distribution. Johnson v. Stringer, 158 Md. 315 , 148 A. 447 ; In re Disston’s Estate, 257 Pa. 537 , 101 A. 804 .

It is evident that the gift which the testator undertook to make would be void for the uncertainty and indefiniteness of the beneficiaries unless it comes within the scope of the Act of 1888, ch. 249, as amended by the Act of 1924, ch. 335, Code, art. 93, sec. 337 (Dashiell v. Attorney General, 5 H. & J. 392 ; Id., 6 H. & J. 1 ; Wilderman v. Mayor etc. of Baltimore, 8 Md. 551 ; Needles v. Martin, 33 Md. 609 ; Church Extension v. Smith, 56 Md. 362, 397 ; Isaac v. Emory, 64 Md. 333 , 1 A. 713 ; Maught v. Getzendanner, 65 Md. 527 , 5 A. 471 ), or unless the means provided for the incorporation of the charity comes within the provisions of that act (Chase v. Stockett, 72 Md. 235 , 19 A. 761 ; Yingling v. Miller, 77 Md. 104 , 26 A. 491 ; Gray v. Peter Gray Orphans’ Home, 128 Md. 592 , 98 A. 202 ). The statute mentioned, Act of 1924, ch. 335, is: “No devise or bequest of real or personal property for any charitable uses shall be deemed or held to be void by reason of any uncertainty with respect to the donees thereof, provided the will or codicil making the same shall also contain directions for the formation of a corporation to take the same, and within the period of twelve calendar months from the grant of probate of such will or codicil, if the devise or bequest is immediate and not subject to a life estate or at any time between the date of probate of the will or codicil and the end of the twelve months next following the expiration of the life estate or life estates, if the devise or bequest is to ⁵⁵³ take effect in possession after the expiration of a life estate or life estates, a corporation shall be formed in correspondence with such directions, capable and willing to receive and administer such devise or bequest.” The matter of compliance with the provisions of this statute in the plan of the will for the formation, of a corporation to take title to the corpus of the trust estate at the expiration of the life tenancies is necessarily important in the decision of this case. In this connection the chief reliance of all parties is the case of Yingling v. Miller, 77 Md. 104, 105 , 26 A. 491, 492 . In that case, Henry Tasto had devised to his daughter, Margaret Yingling, a farm for life, “upon the condition that she pay to the trustees (or church council) of the Emmanuel Lutheran Church in Manchester, Carroll County, the sum of three hundred dollars, * * * in trust for the express use and benefit of the needy poor of said church or congregation.” What this court there in effect said was that, while the Act of 1888, ch. 249, removed the obstacle of uncertainty in the donees, the gift was void because the conditions of the proviso had not been complied with in that case, in that no provision had been made by the testator for payment to a corporation to be formed in accordance with the act, as had been substantially done in the case of Chase v. Stockett, 72 Md. 235 , 19 A. 761 , which is. the only theory on which the two cases can be reconciled.

In Dashiell v. Attorney General, 5 H. & J. 392 , it was held that the Statute of 43 Eliz. c. 4, known generally as the “Statute of Charitable Uses” was not in force in this state, and the decisions so continued until the Act of 1888, ch. 249, was passed, whereby it was provided that no devise or bequest of real or personal property for any charitable use should be void for “uncertainty with respect to the donees thereof,” if the will or codicil provided for the formation within twelve months of probate of a “corporation * * * capable and willing to receive and administer such devise or bequest.” The first case that came to this court after the Act of 1888 became effective was Chase v. Stockett, 72 Md. 235 , ⁵⁵⁴ 19 A. 761, 762 , in which the opinion of Judge Miller in the circuit was adopted Iby this court as its opinion on appeal. Hester Ann Ridout had, by her will made May 24th, 1886, two years before the Act of 1888, probated December 18th, 1888, eight months after the passage of the act, provided for the establishment of “a home for destitute, aged, and infirm women, where they may find a retreat from the vicissitudes of life,” and left to eight named persons as trustees what is known as the “Chase Home,” at Annapolis, where she resided, and devised to the same trustees certain real estate in Baltimore to be held by them “as an endowment or fund” for the support of the home. At this point in the opinion, Judge Miller said, “But for the recent action of the legislature, I should be compelled to declare this devise for the establishment of a most admirable charity invalid, by reason of the uncertainty as to the beneficiaries entitled to enjoy it. According to a long line of decisions by the court of appeals, a devise for the benefit of ‘destitute, aged, and infirm women’- is void for uncertainty.” With respect to the powers and authority of the trustees, the testatrix said: “Andi I hereby will and direct, and fully authorize and empower, the said trustees, if in their judgment they may think best, to become a body corporate, either under a special charter from the legislature of this state, or under the general -incorporation laws of this state, and whether as trustees under this will or by incorporation, to make, ordain, and declare whatever rules, regulations, ordinances, or by-laws as they may deem best for the better government and advancement of the home: provided, always, that nothing in such charter or incorporation, rules, or by-laws, shall conflict with the provisions of such trust as declared by this will,” of which Judge Miller said, “This, as it seems to me, is a substantial, if not a literal, compliance with the conditions of the statute,” and this court so decided.

If this court had held the devise to have been to the trustees, it would have been held void as a perpetuity, as well as indefinite as to donees. ⁵⁵⁵ Then the case of Yingling v. Miller, 77 Md. 104 , 26 A. 491, 492 , came here, and this court declared “there was no intention to abolish, unconditionally and absolutely, the old rule in Maryland as to uncertainty,” and held that, although there was an incorporated church already in existence, it could not take the gift, because the testator had not provided for a new corporation to be formed within a year of the probate of his will to take a fund of $300, and disburse it in accordance with the terms of the will. Thirty-one years after the decision of the Yingling case the Legislature amended the Act of 1888, by inserting the words: “If the devise * * * is immediate and not subject to a life estate or at any time between the date of probate of the will or codicil and the end of the twelve months next following the expiration of the life estate or life estates, if the devise or bequest is to take effect in possession after the expiration of a life estate or life estates, a corporation shall be formed,” etc., as, in the Act of 1888, an amendment designed to meet a situation such as we have here, where the possession would be delayed pending the termination of four life estates. In many cases, this court had, whenever the language of wills permitted, construed trusts to a charitable corporation to