72 Md. 560 | Md. | 1890
delivered the opinion of the Court.
By the will of Philip Hiss, sundry pecuniary legacies, aggregating eleven thousand dollars, were bequeathed, and their payment -was charged upon his real estate. All the rest, residue, and remainder of his property was given to five named trustees, and théir heirs and successors in trust, for the following purposes, viz., first, that one equal sixth part should “go to and become the property of” P. Hanson Hiss, absolutely and forever; and secondly, that the other five-sixths should be held by the trustees for the benefit of the several cestuis que trust named in the second, third, fourth, fifth and sixth items of the fourth article of the will. These cestuis que trust are the four other children of Philip Hiss and two children of a deceased child. By the sixth article of the will the trustees were authorized and empowered, in case they “shall be of the opinion at any time that it is necessary, "for the' purpose of making a division among those entitled, or if it shall be necessary for any other purpose, or in case they shall deem it advantageous to
P. Hanson Hiss was one of the trustees and executors under the will of his father, Philip Hiss. As trustee lie-collected the rents and income and some of the securities-belonging to the estate, and when he failed in business he had used $9,985.44 of these trust funds so received by him. On the 6th day of November, 1886, he executed a deed of trust, conveying all his property to Christian Devries for the benefit of creditors. He was subsequently removed from the position of trustee, and his letters as executor were revoked. A new trustee was substituted in his place. This bill was then filed by the trustees under the will of Philip Hiss, and by others, against all parties interested in Philip Hiss' estate, for a partition thereof. Mr. Devries, the trustee of P. Hanson Hiss, was made one of the defendants. In addition to the relief sought by way of partition, the bill prayed that the amount of trust funds retained by P. Hanson Hiss be treated as a payment in part of his share of the trust estate. Mr. Devries resisted this, and claimed that the whole share of P. Hanson Hiss, undiminished by crediting the misapplied trust funds, belonged, under the deed of trust, to him, Devries, for the benefit of the creditors of P. Hanson Hiss. And this raises the first question which we are required to decide on this appeal.
Mr. Devries stands in precisely the same position towards the estate of Philip Hiss that P. Hanson Hiss would have occupied had the deed of trust not been executed. It is equally certain that, when a trustee who
Now, what interest did P. Hanson Hiss take under the will of Philip Hiss P 'Was it a legal estate, or was it an equitable interest subject to the trusts named in the will, until an actual division of the property shall be made ?
It is a rule of construction that the legal estate will be held to vest in the donee to uses, in order to enable him to perform the duties with which he is intrusted; and it was established at a very early period, and has since been generally acted on. Hill on Trustees, 231; 1 Cru. Dig., tit. 12, ch. 1, secs. 20, 21 and 25. It seems to be
Now, the entire residuum, which includes the whole of P. Hanson Hiss’ share, was devised to the five trustees in fee simple, in the first instance, and they were given full power to sell and convey, in their discretion, all or any part of that residuum for the purpose of making partition or for any other purpose which in their judgment might benefit the estate. There are active duties imposed upon them. As the legal estate was expressly devised to them, and discretionary powers were superadded which require for their proper exercise that the trustees should be clothed
After P. Hanson Hiss appointed Mr. Devries trustee, it was suggested and supposed that it would be to the advantage of the creditors if the trustee were permitted to complete the unfinished contracts made by Mr. Hiss before his failure, and to work up the material then on hand. Accordingly, an agreement was prepared whereby the unsecured creditors of P. Hanson Hiss agreed with Mr. Devries that the latter should use the assets of the trust estate conveyed to him by P. Hanson Hiss as security for such advances as the trustee might make or procure to be made in finishing uncompleted work, in filling unexecuted orders, in paying liens on the trust property, &c., &c. This agreement was signed by the trustees under Philip Hiss’ will for $20,108, which included the amount now claimed by the trustees in this case. It was also signed by a large number ofi other creditors, and was acted on by Mr. Devries. It is insisted that, inasmuch as the trustees described themselves as unsecured creditors in this agreement, which related exclusively to the settlement of P. Hanson Hiss’ trust estate, they are estopped in the pending proceeding,
It was further insisted that the decree of the Circuit Court was erroneous because it refused to reimburse Mr. Devries out of the estate of Philip Hiss for taxes claimed to have been paid upon or on account of that estate by him Avith funds in his hands belonging to the trust estate of P. Hanson Hiss. Having acquired under the deed of trust all of the interest of P. Hanson Hiss in the estate of Philip Hiss, Mr. Devries had the legal right to keep down the taxes, and, if he did in fact pay them out of the trust funds in his hands, he is clearty entitled to have the amount refunded by the estate for Avhose benefit he paid them. Mr. Devries, P. Hanson Hiss, and Mr. Hardy, the bookkeeper of P. Hanson Hiss, and of his trustee, all unequivocally testify that the taxes in question Avere paid by Mr. Devries out of the trust estate of P. Hanson Hiss. Some entries made in the hooks kept by Mr. Hardy have been relied on to sIioav the contrary. Without attempting to unravel these entries, Avhich Mr. Hardy admits to be erroneous, it is sufficient to observe that Ave cannot give to them the effect that is claimed Avithout absolutely discrediting the three Avitnesses just named, and there is nothing in the record to warrant this being done. We are, therefore, of opinion that this part of the decree is erroneous. The same observations are applicable to the sirm of three hundred dollars also paid by Mr. Devries, in the same manner, for interest due to the Savings Bank of Baltimore on a mortgage held by it on a part of Philip Hiss’ property. Mr. Devries should be refunded this amount also.
Finally, it is objected that there was error in imposing upon Mr. Devries the costs incurred in taking and recording the testimony found in the record. Most of this testimony relates to the payment of the taxes and the interest already.alluded to, and we can see no reason why these costs should be charged against Mr. Devries. As he is, according to out view of the case, entitled to be refunded these taxes and this interest, he clearly ought not to be charged with the costs which the successful assertion of his claim has occasioned.
The result is that the decree appealed from will be affirmed,- except the part thereof which disallows the taxes and the mortgage interest paid by Mr. Devries; as to those parts it will be reversed and the cause will be remanded for further proceedings.
Decree affirmed in part, and reversed in part, and cause remanded.