Wilks v. Burns

Yeliott, J., delivered the opinion of the Court. This appeal is from the decree of the Circuit Court of Baltimore City, granting the relief prayed for in a bill of complaint for specific performance, filed in that Court by the appellees in this cause against the appellant. From the record it appears that on the 15th day of April, 1858, James Wilks, Jr., of Baltimore City, executed his last will and testament, which was admitted to probate on the 3rd day of May in the same year. The testator devised and bequeathed the one-sixth part of his estate to trustees, to be held in trust for the use of his son James K. Wilks, during the term of his natural life, with power to his said son to dispose of the reversion by will.

In the event of no such disposition being made, the property was to be held in trust, by the trustees named in the will, for the use of such persons as would be the heirs of the testator “to take in fee simple.” The son, becoming embarrassed by mortgages on his life estate, applied to his brother-in-law, Burns, to purchase said estate at sales for foreclosure of said mortgages; promising to secure him by a will made in execution of the power given him by the testator ; which will was to be irrevocable. The property was purchased by Burns, who also obtained a policy of insurance on Wilks’ life. Wilks executed what purports to be an irrevocable will, by which Burns was to hold the reversion in trust with power to sell the same immediately after the testator’s death, and having, from the proceeds, fully indemnified himself for all losses and expenses incurred in assisting and relieving Wilks from his pecuniary embarrassments, to di • vide what remained among the children of said Burns. Some time subsequent to these transactions the said James K. Wilks married, and not long afterwards, executed a will devising and bequeathing to his wife, Amelia ⁶⁶ A. Wilks, tli'e whole of the property disposed of in the will made in favor of Burns.

Wilks’ death occurred on the 29th of January, 1881, and soon after both of these papers, each purporting to be his will, were presented to the Orphans’ Court of Baltimore City for probate. Anterior to the action of that Court, the appellee, Burns, endeavored by a bill for an injunction in the Circuit Court of Baltimore City, to prevent the appellant from proceeding further towards having the will in her favor admitted to probate. No injunction being issued, that will was admitted to probate. The Circuit Court afterwards decreed the enforcement of the alleged contract, and appointed a trustee to convey the property in controversy by a deed conforming' with the terms of the will made in favor of Burns.

From that decree an. appeal has been taken, and the cause thus brought into this Court for adjudication. The Court below having decreed the specific performance of the contract, in order to properly determine the questions involved in controversy, it becomes necessary to ascertain, by an examination of its terms, in connection with the proof in the cause, whether the end and object which induced the parties to enter into that contract have not yet been attained, or whether, having been accomplished, the obligations imposed by its stipulations have ceased to be operative and cannot therefore be specifically enforced in a Court of equity. We have the written agreement, signed by Burns and James K. Wilks, in relation to the purchase by the former of the life estate of the latter. The paper, purporting to be an irrevocable will executed by said Wilks in favor of Burns, is also in the record; as well as the testimony of George M. Gill, who prepared both instruments, and narrates in detail the circumstances under which they were executed.

The written contract between Burns and Wilks makes no reference to the execution of a will by the latter. ⁶⁷ After the recitals, referring to the purchase of the life estate and the expenditure of sums of money in aid of Wilks, there is a stipulation on the part 'of Burns for a reconveyance of the life estate, if during the life-time of Wilks, he, Burns, should be reimbursed. The proof discloses the fact that Burns has been fully reimbursed, and over-paid by the falling in of the life insurance. The testimony of George M. Gill indicates that Wilks intended the will as a security, to induce Burns to incur the risk of purchasing the life estate; promising, as the witness says, that he “would secure him by the will, which he was authorized to make under his father’s will, that he would be reimbursed in case of his, Wilks’ death,” the balance to go to the children of Burns. From the language of the will, it is to be inferred, that its maker intended it to operate as an indemnification in the event of losses incurred by Burns, in relieving Wilks from his embarrassments.

A trust is created giving Burns the power to sell and reimburse himself, with a residuary clause dividing the remaining proceeds among the children of Burns who may be living at the time of the death of the testator. It is probable that this residuary clause was inserted, because it became necessary to make some disposition of the entire proceeds in the event of a sale for the purpose of reimbursement; but Burns having been fully reimbursed, is there now any necessity for a sale ? Can there be any legal sanction for the execution of a power, when the purpose for which it was created has been accomplished? Was it not the intention of the contracting parties, that there should be an extinguishment of the power in that event?

It might be urged,''that this intention is not clearly apparent, but merely inferential. This may be so, but the very ambiguity in which that intention is involved, presents an insuperable obstacle to the passage of a decree granting the relief invoked by the complainants in this cause. When there is an application for specific perform ⁶⁸ anee, the proof of the intention of the contracting parties must be clear, and the contract certain in its terms, and free from all shade or color of ambiguity. In the case of Mundorff and Wife vs. Kilbourn and Howard, 4 Md., 464 , the Court, adopting the language of the Lord Chancellor, in Walpole vs. Orford, 3 Ves., 402, said “that all agreements to be executed in equity must be certain and defined; equal and fair; and proved as the law requires; and that it was enough to doubt on anyone of these points to refuse relief.” In the case of Semmes vs. Worthington, et al., 38 Md., 318 , this Court said: “The proof must be clear and explicit, leaving no room for reasonable doubt.

And in cases for the specific enforcement of a contract to devise, like the present, where the property has .been devised to other parties, the utmost certainty is required, as, by the enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith.” Another and a more important question is now presented for consideration, and upon its solution is dependent the determination of this controversy. Could James K. Wilks fetter and clog himself by the terms of a contract in the execution of the power given him by his father's will? The donor of the power intended that it should be executed by the will of the donee. The word “ will” has a technical meaning, and implies an instrument executed in conformity with prescribed formalities, but subject to alteration or cancellation at the volition of the maker.' It is his will, because his own mind, untrammelled and free, has determined to give the disposition of his property a certain designated direction.

It does not take effect until his mental 1 and physical powers have been destroyed by disease and dissolution, and while ever lie has a dis ⁶⁹ posing mind it is under liis control. This control over property until the last moment of life, is said by some elementary writers, to be derived from the sanction of the sovereign power; while others declare it to be a natural right existing “prior to all positive institutions and civilized refinements;” and one of the old English jurists, in his quaint phraseology, says that “Last Wills and Testaments, as to their Us.e, End and Substance, (though not as to the Solemnities thereof,) were known in the world long before Time had one gray Hair; indeed not long after the World came out of Nothing.” Godolphin’s Orphans’ Legacy, 1. The right to make a testamentary disposition of property being of such ancient origin, and existing coevally with the right to hold it, must have been exercised anterior to the ages when the knowledge of writing was acquired. Originally such disposition must have been by oral declarations, subsequently verified by the testimony of witnesses.

As the intention of the