53 Md. 46 | Md. | 1880
delivered the opinion of the Court.
The appellant sued the appellee for the purchase money of five lots of ground, which are described in the declaration. Pleas of never indebted, and never promised as alleged, were interposed. • The case was submitted to the Court, without the intervention of a jury, upon an agreed statement of facts, which raises the question of title, the alleged want of which on the part of the appellant, the v.endor, forms the appellee’s whole defence against the claim for purchase money. The_ facts are undisputed. Edward Griffith died seized of the property in question. By his will, duly executed and admitted to probate, he first devises and bequeaths to his “friends John J. Griffith and Charles B. Key worth, and the survivor of them, and the heirs, executors and administrators of the survivor, the sum of twenty thousand dollars, in trust and special confidence nevertheless, and to and for the uses, objects and purposes, and under and subject to the limitations and restrictions hereinafter mentioned, expressed and declared of and 'concerning the same, and
John J. Griffith and Chas. B. Keyworth bonded as executors, and two years afterwards the letters of Key-worth were revoked for a want of counter security, and he afterwards renounced all participation in the trusts of the will. John J. Griffith afterwards died leaving a son as his heir-at-law who was a minor. His administrators declined to execute the trusts of the said will, and they paid over to an administrator de bonis non of Edward Griffith, the funds of that estate which came to their hands as administrators of John J. Griffith. That administrator de bonis non was Andrew J. Myers. A bill was filed in the Circuit Court for Baltimore County, for the appointment of a trustee to execute the trusts created by the will of Edward Griffith, alleging the minority of the heir-at-law of John J. Griffith the trustee who had died, and the necessity for a new trustee to be appointed to secure to the several persons interested the enjoyment of their rights. It is admitted, that all parties in interest in esse were brought in. That proceeding culminated in a decree appointing Andrew J. Myers trustee, “instead of the said John J. Griffith, deceased, with full and ample power and authority to execute the several trusts created in and by the last will and testament of the said Edward Griffith, deceased; and the said Andrew J. Myers, is hereby directed to seek a suitable mode of investment for the said sum of twenty thousand dollars in said will and the bill of complaint mentioned, and report the same for the consideration and approval of this Court, and also to proceed to the execution of his other duties in the premises,” &c. Subsequent to said decree, Andrew J. Myers, the trustee
The appellants on the other hand insist, that the intent of the testator is apparent to create trusts, without intending that the persons named should, at all events and at all hazards, execute them to the exclusion of all others, or of the control of the Courts for their protection and preservation; and that it was within the power of the Court of equity when the trust would fail for the want of a competent person to execute it, coming within the description and designation of the will, to appoint a trustee to preserve and execute the trusts. And if it be conceded that there was a’discretion reposed in the trustees named in the will, which could not be reposed in a trustee appointed by the Court, still the Court could order the sale, and could direct and approve the investment, and
The first thing to he ascertained is, what did the testator intend to do, or to he done; for if that can he ascertained by considering the will as a whole, that intention must be carried out, unless some imperative rule of law will prevent. The first object in the mind of this testator was to provide a fund of twenty thousand dollars, to produce an annuity for the benefit of his wife, as long as she might live ; which fund and the proceeds thereof he desired effectually to protect from the control of any future husband she might marry, and to secure from liability for the debts of such possible husband. That fund, it appears from his will, did not exist in tangible form, but had to he raised by sales of certain portions of his estate, and for that reason he gives the persons named as executors and trustees and the survivor, and the heirs, executors and administrators of the survivor the power of sale for the purpose of raising this fund and paying certain pecuniary legacies. The next object of his bounty was his daughter, and for her he designed all the residue of his estate, including the fund set apart for his wife, after her death, to go, after paying the legacies, for life, and then to her children. He discovers the same object here again, to protect what he gave his daughter from the control of any future husband she might have, and from his debts. To accomplish these objects he creates a trust; and for the purpose of making the estate productive he gives the trustees the power of selling and leasing, as might he most advantageous, in their judgment, to the parties. These were trusts the testator could not have intended to fail by reason of the death, refusal, or incapacity of any of the parties coming within the express terms which he has used to designate the trustees. The estate needed to
Looking to the whole of this will and the objects intended to be secured, we may well hold that this testator intended that whoever might be the trustee to carry out the provisions of his will, should have the power of sale, or leasing his estate for the purpose of making it productive and available for the cestuis que trust. In other words that he was giving • a discretionary power, which he designed to attach to the office of trustee he was creating.
The general doctrine now is, that Courts of equity will not allow trusts to fail for the want of proper persons to execute them. In this case the Court, on application, and it appearing that the infant son of the deceased trustee, on whom the estate and trust had devolved by law was unsuitable, and unable to execute the trust, all the parties in interest being before the Court, has appointed a new trustee. The trust being imperative, the Court conformably with its power has taken charge of it and executed the trust by such appointment. Perry on Trusts, sec. 249. The infant being unable to convey, the decree does not so direct, hut the decree devests the title of the infant heir, and vests it in the new trustee for the preservation of and purposes of the trust. This brings us to inquire whether the decree conferred the power of sale on Myers, the newly ap
In this State as in almost all the United" States, Courts of equity take the supervision of all trusts. “ Relief has been decreed when the original trustees declined to act; or were desirous of being discharged; or had absconded; or were incapable of acting through age or infirmity; or could not discharge the trust through disagreement amongst themselves; or had been guilty of breaches of trust; or had become bankrupt.” Hill on Trustees, 290, 291. The substituted trustee, when so appointed and qualified, sustains to the estate the character of trustee, as fully as if he had been originally appointed. Cole vs. Wade, 16 Ves., 44. But where the discretionary powers are such as would not belong to the Court because of its jurisdiction over the subject-matter of the trust, independent of the authority of the will; as for instance, where the power is one of selecting the beneficiaries to enjoy the testator’s bounty, the Court will not exercise it, and under the rules of law cannot confer such discretion on a trustee.
In such case the Court will execute it equitably, hy equal distribution among those named. But it is otherwise where any body could properly exercise the discretion about the thing to he done; as for instance, the felling of timber, &c. Hill on Trustees, 317, and Ambler’s Reports, 508. When the discretion applies to some ministerial act connected with the estate, such as felling timber, leasing or selling the land, such powers are much more under the control of Courts than those depending on the exercise of opinion and judgment. Perry on Trusts, 454, and cases there cited. In this case, the Court had undoubted jurisdiction over the trust. All the parties were "brought in, and the whole trust was taken in charge by the Court. The trustee was directed to seek proper investments, and to report to the Court for its approval. A sale of the land for the purpose of accomplishing the objects contemplated,
There was certainly no injury to the cestuis que trust in ratifying such a sale as that was, or objections would have been interposed. The trustee reported the sale to the
The learned Court below rejected the prayers of the plaintiff, which asked the Court to rule that upon the proof he had valid title, and granted the prayer of the defendant that, “the plaintiff had offered no sufficient evidence to establish any authority in the trustee, Andrew J. Myers, to make the sale and execute the conveyances of the property mentioned in the evidence, and the plaintiff is not entitled to recover.”
It follows from what we have said, that we think the Court erred in these rulings, and the judgment must be reversed and a new trial ordered.
Judgment reversed, and new trial ordered.
At.vtsy, J., dissented.