Thom v. Thom

Jones, J., delivered the opinion of the Court. This is the third time that questions arising in the progress of the settlement of the estate left by the late William H. DeC. Wright have been brought to this Court for adjudication. Other cases presenting such questions are reported in 73 Md. 451 and 97 Md. 139 respectively.

The said Mr. Wright was married and died in 1864, leaving his wife, Eliza. L., surviving him. He and his said wife had three children, all daughters, one was Clintonia G., who married first William May and, after his death in her lifetime, Philip F. Thomas. She survived both husbands and also her father and her mother, dying in 1902.

Another daughter was Victoria L., who married Samuel Levering, and who survived her father and mother, dying in 1889. The third daughter, Ella L., married J. Pembroke Thom, and predeceased her father and mother, dying in 1861. On the 13th of October, 1853, William H. DeC. Wright and wife executed to Robert Clinton Wright a deed of an estate and landed property known as Blakeford situated in Queen Anne’s County, this State, “In trust for the proper use and behoof of Clintonia Gustavia May, the wife of William May * * and daughter of the said William H. DeCourcy Wright and Eliza L. Wright, his wife for and during the term of the joint natural lives of the said William May and Clintonia Gustavia May so that the said William May and Clintonia Gustavia May shall be suffered and permitted during said term to hold, use and occupy and enjoy said lands and property and to collect and receive the rents, issues and profits thereof and the same to dispose of and apply to her own use •the same however to be subject to the management and supervision of the said William May but in no wise liable for his debts, contracts or engagements and from and after the death ⁴⁴⁷ of either of them, the said William May and Clintonia Gustavia May in trust for the survivor of them for and during the term of his or her natural life with powers to such survivor to devise and bequeath the whole or any part or parts * * * to such of the children or descendants of the said William and Clintonia Gustavia and for such estates and interests therein and in such shares or proportions as such survivor may think proper with the power also to the said William * * and Clintonia * * or the survivor of them with the consent and approbation of the hereinbefore named William H. DcCourcy Wright if he shall be then living, but if he shall be then dead with the consent and approbation of the said Eliza L. Wright if she be then living, but if she shall be then dead with the consent and approbation of the said Robert Clinton Wright if then living, but if he be then dead with the consent and approbation of the heirs of the said William H. DeCourcy Wright, and in case they or either of them should object thereto then with the consent and approbation of the Orphans’ Court of said Queen Anne’s County to sell, dispose of and convey absolutely or otherwise the whole or any parts or part of the lands and property hereby conveyed and to invest the proceeds in such other property as by the parties hereby authorized to sell shall deem proper and it is hereby declared that all such investments shall be deemed and taken to be held upon similar uses and trusts and with similar powers to those herein declared in relation to the specific estate hereby conveyed.

And ifrom and after the death of the survivor of them the said William * * and Clintonia * * in case no such disposition of said lands, See., * * shall be made under the powers hereinbefore granted and in so far as no such disposition shall have been made then in trust for such of the children and descendants of the said Clintonia * * as may be then living and who shall have then attained the age of twenty-one years and their heirs per stirpes and for the support, maintenance and education of such child or children and descendants of the said Clintonia * * * as may be then living, but who shall ⁴⁴⁸ not then have attained the age of twenty-one years until such, child or children then living and in their minority shall respectively arrive at the age of twenty-one years or shall die in its or their minority, and in case of the death of any such child or children or descendants dying in its or their minority-then as to the portion or share of such child or children or descendants in trust for the other children and descendants of the said Clintonia * * * then living who may have arrived at the age of twenty-one years and their heirs forever and the maintenance, support and education of those still in their minority and when and as each of the aforesaid children and descendants of the said Clintonia * * living at the time of the death of the survivor of them, the said William * * and Clintonia * * and then in his, her or their minority as aforesaid shall respectively attain the age of twenty-one years then as to his, her or their share in trust for them and their heirs forever. But if there shall be no children or descendants of the said Clintonia * * living at the time of the death of the survivor of them, the said William * * and Clintonia * * or if there be children under age as aforesaid and all of them shall die in their minority then in trust for * * William H. DeCourcy Wright for and during the term of his natural life with power to him to devise and bequeath the estate and property hereby conveyed to such of his children or descendants as he may think proper and in case of his death without his having made any disposition thereof then in trust for the hereinbefore named Eliza L. Wright for and during the term of her natural life with power to her by last will and testament duly executed, to devise and bequeath the same to such of the heirs of said William H. DeCourcy Wright as she may appoint to take the same and for their heirs forever; and in case the said Eliza * * should make no such disposition by will as hereinbefore provided, then in trust for such person or persons as would by the now existing laws of Maryland be the heirs-at-law of the said William H. DeCourcy Wright and for their heirs forever.” ⁴⁴⁹ In May, 1854, the grantor in the deed referred to, Mr. Wright, executed his will in which after manumitting his slaves he devises and bequeaths all the residue of his property upon certain trusts and subject to the limitations therein declared for the benefit of his three daughters subject to a provision for his wife; the concluding clause of which will is as follows: “Whereas I have heretofore advanced to my daughter, Clintonia G. May, wife of William May, the property described in a deed of real and personal estate executed by me as will more fully appear by reference to said deed. I hereby declare that my daughter and her representatives shall not be entitled to any portion of my estate until she has been charged with the sum of thirty-five thousand dollars, which I hereby assess as the value of the property so advanced to her and until she has been charged with one-third of her share or portion for the benefit of my widow as aforesaid.” To this will there were three codicils one of which, executed in February, 1858, is as follows: “Having subsequently to the execution of my will on the 22nd day of May, 1854, given property to my two daughters, Victoria and Ella, it being my will and intention they be charged with the same as part of their share of my property to place them on a footing with my daughter Clintonia, to whom I gave property valued at thirty-five thousand dollars and that after they have all received the amount of thirty-five thousand then to share and share alike in all the balance of my property.” In her lifetime Mrs. May (then Mrs. Thomas), asserting the right so to do under the power conferred by the deed of the 13th of October, 1853, her father and mother and Robert Clinton Wright, the trustee, all being dead, and some of the heirs of the grantor in the deed making objection to the execution of the power by her, applied for and obtained from the Orphans’ Court of Queen Anne’s County a consent to the sale by her of the property, Blakeford, described in the said deed; and thereupon sold the same to DeCourcy W. Thom, the appellee here, for the sum of $27,000. She then executed to him a deed of date 24th March, 1886, reciting that it was ⁴⁵⁰ made in execution of the power; and subsequently took from him a mortgage at six years, of the property so conveyed, for the whole amount of said purchase-money which remains unpaid.

She also made a will, and by a codicil thereto, devised the same property to the appellee assuming to devise it “to be his solely and absolutely in fee-simple.” And in the same codicil gave of certain other property, the one-half to him and one-half to be equally divided between the two children of a deceased nephew parties to this case. The plaintiffs below in this case began proceedings therein by filing in the Circuit Court for Queen Amne’s County their bill of complaint showing that they' claim interests in the property in question through Mrs. Levering, one of the daughters of the grantor in the deed of the 13 th of October, 1853, and under and by reason of the limitations in said deed. The object of the bill, as expressed in its prayer for relief, is to have construed the deed of trust of the 13th of October, 1853; to have determined the validity of the sale of the property in said deed mentioned, made by Mrs. Thomas with the consent and approval of the Orphans’ Court of Queen Anne’s County; to have in case the said sale is held valid, a proper distribution of the $27,000 purchase-money with interest and a decree for the payment thereof; to have, in case said sale is pronounced invalid, a sale made of the real estate which was the subject of the trust in the deed of the 13th of October, 1853, for the purpose of division among the parties entitled under said deed; and to have from the appellee, DeCourcy W. Thom, an inventory and account of the chattels and personal property mentioned and conveyed by the said last-mentioned deed that the same may be sold with the said real estate by a trustee to be appointed by the Court. Mrs. Thomas, formerly Mrs. May, left at her death, no children or descendants—having never had children.

The two other daughters of Mr. Wright left children and descendants, and all of these, who, under-any theory of construction of the deed in question that has been suggested and urged, can take interests thereunder, have been made parties to the bill and ⁴⁵¹ are represented in the appeals brought up in the record. All the parties answered the bill according to their several claims of interest in the property in controversy. Of these answers the only one that it is necessary to refer to is that of the appellee DeCourcy W. Thom, which raises all the questions that are presented for the consideration of the Court. The Court below sustained the contention in the answer of the appellee that under the true construction ofthedeed ofthe 13th of October, 1853, in connection with the will of the grantor in the deed, the appellee had become invested with full and absolute title to all the property real and personal which was the subject of the trust which has been heretofore set out.

Besides the one referred to there are alternative contentions set up in the answer of the appellee which, in the view we have of this case it will be necessary to notice. The view, that controlled the Court below in sustaining the contention that the appellee is now invested with a full fee-simple interest in the property in controversy, is, that the will of Wm. H. DeCourcy Wright had the effect to convert the estate in “Blakeford” granted to Clintonia G. May by the deed of the 13th of October, 1853, under the limitations contained in that deed, into a fee-simple estate in her with the consequent power of full disposition thereof. To this we cannot agree.

When the grantor in the deed just referred to executed and delivered the same he passed out of himself and to the trustee and the cestui que trusts therein all of the estate in, and power and control over, the property therein described, except so far as he may have provided in the deed itself for any future interest in, or control over, the property conveyed by it, to be held or exercised by him. Goodwin v. White, 59 Md. 503 ; Brown v. Mercantile Trust Co., 87 Md. 394 . The only future interest or control that the deed provided for in this regard was, that, in the contingency therein mentioned, the property should be held in trust for the grantor during his natural life with power to him to devise and bequeath the same “to such of his children or descendants as he might think proper.” It was only by the effective execution ⁴⁵² of this power that the grantor could control the course of devolution of the title to the property. Was there any effective execution of this power or any intention to execute it manifested by the will which Mr. Wright subsequently made?

We think clearly not. The Act of 1888, ch. 249, has no application here. The rule of law to be here applied is stated in Mory v. Michael, 18 Md. 227 -241, where it is said: “The intention to execute a power 'of appointment by will, must appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would be inoperative without the aid of the power.” In 4 Kent, 334 (marg. 11 ed.) it is laid down. “In the case of wills, it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power, there must be a reference to the subject of it, or to the power itself; unless it be in a case in which the will would be inoperative without the aid of the power and the intention to execute the power became clear and manifest. ” See also Farlow v. Farlow, 83 Md. 118 ; Foos v. Scarf, 55 Md. 301 ; Patterson v. Wilson, 64 Md. 193 . In the case at bar there was, in the will made by Mr. Wright, or in the codicil, no reference, in any way, to the power itself.

A reading of these gives no intimation whatever of the existence of a power of any kind. The will was certainly fully operative without the aid of the power. The testator did not refer even to the property, which was the subject of the power, except in the most general way and without a suggestion that the reference was thus made in connection with the power in question. He refers to the property as property “I have heretofore advanced to my daughter, Clintonia, &c., * * described in a deed of real and personal estate executed by me as will more fully appear by reference to said deed” thus making the reference one, clearly, for verification and particulars of the facts stated and nothing more.

He makes no reference whatever to any future gift or disposition of the property in question either in his will or the codicil thereto. To impute to the language used in either any such meaning or effect is to give to it the most strained construction and to indulge in pure speculation. ⁴⁵³ In this connection much has been said as to the evident intent of the testator to equalize his bounty among his children. It is not perceived how such a general purpose can, of itself, have any necessary effect to reflect upon a specific intent to execute a power. To invoke such a consideration here would be to resort to speculation and conjecture to contradict and overthrow a specific intent manifested in the most solemn and emphatic form.

By the deed of the 13th of October, 1853, Mr. Wright had, apparently with the utmost deliberation and certainly with the greatest particularity and care, prescribed and provided how his daughter, Mrs. May, should holdandenjoy the property described in the deed, and what should be her power as to its disposition. His will was executed only a few months later; and because this indicates or expresses a general purpose and wish that there shall be equality among his children in sharing his bounty and it is supposed, independently of any opinion indicated by him to that effect, that the deed stood in the way of such a purpose, is there afforded any evidence or any necessary or natural inference that there was in his mind at the time of the