Zeller v. McGuckian

Delaplaine, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Anne Arundel County construing the will of Thomas McGuckian, deceased, and ordering the distribution of his estate. The will was executed May 30, 1921, when he was 58 years old. He died September 9, 1921, and was survived by his wife, Maggie McGuckian, aged 63, and a son, George, a disabled war veteran, aged 31.

The will, which was probated in the Orphans’ Court of Anne Arundel County, leaves all of the real estate ³⁰⁰ and personal property of the testator to his wife “for and during her natural life.” Then follow the two paragraphs which are now in question: “Second. After the death of my wife, I give, bequeath and devise all of said property, not having been previously disposed of by my executors, hereinafter named, to my son, George McGuckian, or in case of his death to his issue, if any. “Third. In the event that my son, George McGuckian, should die without issue I give, bequeath and devise all of the aforesaid property, not having been previously disposed of, to my nephew, George Zeender, absolutely.” The fourth paragraph appoints Charles F. Lee and Winson G. Gott, of Annapolis, as the executors of the estate, with power, in their discretion, to manage, mortgage, lease, sell, or in any other manner dispose of any of the property. The estate consisted principally of a valuable tract of 27.43 acres of land situated at Annapolis, which was subject to two mortgages totalling $9,300.

The testator also left considerable unsecured indebtedness. Lee and Gott, executors, subdivided the tract of land as a residential development of the city of Annapolis, and sold a number of lots under authority of the Orphans’ Court. Gott died in 1927. In 1932 Lee, the surviving executor, sold a lot to the Board of Education of Anne Arundel County, but the board refused to consummate the transaction on the ground that the power of sale conferred by the will upon the executors was exhausted after they had sold a sufficient amount of land to pay the testator’s debts, and therefore they could not any longer convey a marketable title.

Thereupon the testator’s widow, her son George and his wife, and George Zeender and his wife petitioned the Circuit Court to assume jurisdiction of the trust created by the will. The Court assumed jurisdiction and appointed Lee as trustee to administer the trust. On November 29, 1932, the petitioners executed a deed of trust conveying all that was left of the 27.43-acre tract to Lee as trustee. ³⁰¹ It also appears that McGuckian and his wife owned a tract of 188.25 acres of land, subject to a mortgage for $20,000. This tract was owned by them as tenants by the entireties, and hence upon McGuckian’s death it became the property of his widow, subject to the mortgage.

It was believed that the testator was under the impression that this tract was titled in his name alone, and to carry out that idea Mrs. McGuckian in 1923 conveyed the tract to Lee and Gott as trustees under a trust similar to that created by the will. On March 29, 1933, Mrs. McGuckian and Lee, as surviving executor, conveyed to Lee, as trustee, all that remained of the 188.25-acre tract, and the Court assumed jurisdiction of that trust also. Lee has been acting as trustee ever since, and it appears that the trust funds and investments and the real estate which still remains unsold have an aggregate value of approximately $100,000. Mrs. McGuckian died February 26, 1935.

But although she was only the life tenant, it was not until 1946, more than 11 years afterwards, that her son petitioned the Court to order the termination of the trust and distribution of the corpus.