Soulsby v. American Colonization Society

Constable, J., delivered the opinion of the Court. This appeal arises from a misunderstanding of 1he meaning and effect of the mandate together with the opinion of this Court in the case of the American Colonization Society v. Robert Soulsby et al., reported in 129 Md. 605 . We need only refer briefly to the facts of the litigation for they were set out very fully in the careful and comprehensive opinion prepared by Judoe Pattisox, on the former appeal. Caroline ■ Donovan in 1886 executed a declaration of trust, in which she provided that, after her death, certain enumerated real property should be held by specified trustees and the net income paid over to the American Colonization Society for the transportation annually to Liberia of such colored persons as might desire to emigrate to that country; with the further provision, that if in any one year the cost of transportation for that year should not, require the whole of the net income for that year the income, or any balance, should be used by the said society for the maintenance of public schools for the education of colored children in Liberia.

It was provided that the trust was to be under the supervision of a Court of equity, so, therefore, at the death of Caroline Donovan, in March, 1890, the Circuit Court of Baltimore City assumed jurisdiction of the trust; and, from that time to the present, the trustees have collected the rents from the properties and paid the net over to the society. The American Colonization Society is a Maryland corporation, incorporated in the year 1881 (Chap. 314), and was empowered under a new charter, passed in 1837 ('Chap. 274, Acts 1836), to purchase, have and enjoy any lands, by the gift, bargain, sale, devise or otherwise of any person; to take and receive any sums of money, goods or chattels that should be given to it- in any manner and to occupy, use and enjoy, sell, transfer or otherwise dispose of the same as it should ²⁹⁸ “determine to be most conducive to the colonization, with their own consent in Africa, of the free people of color residing in the United States.” The appellants and petitioners, who are the heirs at law and residuary legatees of Caroline Donovan, filed their petition in this cause, praying that the trust properties might be delivered over to them, upon the ground that the trust was void. The reasons assigned for its invalidity were two-fold, or in the alternative. They contended, in the first place, that the declaration of trust was void as contravening the rule against perpetuties and for indefiniteness; and again that even though it should be found that for those reasons it was not void db initioj yet, nevertheless, it had since become inoperative and void, because the objects and purposes for whieh it had been created could no longer be accomplished.

Demurrers were filed to the petition on various grounds, including the ground that adversary possession for several years more than the statutory period completely barred all recognition- of the petitioners’ claim. The lower Court overruled the demurrers and the trustees and the society appealed to this Court. This Court, in disposing of the appeals, entered the order as follows: “'Order reversed and cases re-, manded, the appellees to pay the costs.” After the mandate was received below, the petitioners asked leave to amend the petition but this the Court refused to permit and entered a decree sustaining the said demurrers and dismissing the petition. From this decree the