Whitelock v. Dorsey

Constable, J., delivered the opinion of the Court. By the last will and testament of Jane S 'svhPe1ock. deceased, George Whitelock, her son, and Daniel B. Dorsey, her son-in-law, were appointed trustees of the trusts created by said will, with power, under the seventh article thereof, “in their discretion, from time to time, to sell, dispose of, assign and convey absolutely or otherwise the whole or any portion or portions of the property or securities in which the trust funds or any part thereof may then be invested,” and to invest and hold the proceeds thereof upon the same trusts as the property sold had been held. Under the same article the testatrix expressly directed that the trusts sould be administered under the supervision of a court of equity. ⁵⁰⁰ On the 22nd day of Uovember, 1911, upon the petition of the trustees named in the will, the Circuit Court of Baltimore City passed the usual order, assuming jurisdiction of the trusts, and directing the trustees to administer the trusts under its direction and supervision. On February 11th, 1913, Daniel B. Dorsey filed, in the proceeding for administering the trusts, a petition against his co-trustee.

The appellant filed a demurrer to the whole of the petition, but the' Court overruled it, with leave to answer. The appellant refused to answer and has appealed from the order. The allegations of the petition, which by the demurrer are to be assumed true if well pleaded, state that a portion of the trust estate, held by the petitioner and his co-trustee, consists of twenty-six acres of land in Baltimore County, improved by a large dwelling house, the home of the testatrix in her lifetime, and a cottage. That for eighteen years immediately preceding the death of the testatrix the petitioner, the appellee, with his wife, a daughter of the testatrix, and their family, occupied this cottage, together with a small parcel of ground adjacent thereto, as a home.

That the cottage had been entirely remodeled and improved by the testatrix for the benefit of the appellee’s family. And a permanent right to the cottage and grounds had been offered to the wife of the appellee by her mother, upon the same terms as other of her children had been provided with homes by her. That the offer had been refused and the appellee and his wife had requested Mrs. Whitelock not to make such an arrangement, for the reason that it would be for the benefit of the estate to sell the tract of twenty-six acres, including the cottage, as a whole. 'That immediately after the death of Mrs. Whitelock +V appellee agreed with his co-trustee that he should continue to occupy the cottage until January 20th, 1912, for an annual rental, that was agreed upon as proper, of three hundred dollars, and which afterwards was raised to four hundred dollars, with a proviso that the appellee was to vacate ⁵⁰¹ the property if the tract should he sold; and .with the further proviso that if sixty days’ notice was not given before the end of the term the appellee should occupy the premises for another year upon the same terms. That on the 19th day of November, 1912, after the appellee had occupied the premises during 1911 and 1912, and without any consultation between the trustees as to the lease, he received notice from his co-trustee to vacate the property on January 20, 1913, and a statement that the lease should not continue after that time.

The petition further states that the rent that is being paid is the full rental value of the premises, and is greater than could be received from another tenant with the proviso as to vacating in the event of a sale. He further states that his occupancy of the cottage is a direct benefit to the estate, since it gives him opportunity at all times to supervise the remaining part of the tract. Realizing that he occupies the dual position of trustee and tenant, he prays the Court to adjust the differences existing between him and his co-trustee, and to pass an order authorizing him to continue for another year upon the same rental and terms as to vacating in the event of a sale as the tenancy now provides. After the overruling of the demurrer three of the six children of the testatrix filed a petition asking to be made parties, and upon an order being passed to