76 Md. 576 | Md. | 1893
delivered the opinion of the Court.
This is the third appeal in matters relating to this trust estate, and in the consideration of the question now before us, it is necessary to refer briefly to the course which this litigation has taken. John H. Ehlen directed his estate, upon the death of his wife, to be divided into eight parts, and one of these parts he devised to his son, John F. Ehlen, in trust for the support and ‘maintenance of such children as “he might then or thereafter have.” The one-eighth allotted to John F. Ehlen, trustee, amounted to $16,670.16, and consisted of stocks,
The contention of Blanche Ehlen, the infant cestui que trust, is that the four cestuis que trust, children of John F. Ehlen, having participated in the breach of trust committed by him, in consequence of which the greater part of the trust estate has been lost, she is entitled to her full share of the entire trust property. In other words, of the $3617.15 in the hands of the present trustee for distribution, she is entitled to $3334.05, being one-fifth of $16,670.16 which passed into the hands of John F. Ehlen, trustee, under the will of his father. On the other hand, the four children of John H. Ehlen, former trustee, having assigned their beneficial interest in the trust property to him, and the Mayor and City Council , and the Fire Insurance Company, claiming to be entitled by subrogation to the interest thus assigned, contend that the fund in question is to be distributed equally between the five cestuis que trust, Here, then, is a case in which a loss has been sustained by a breach of trust committed by a trustee, and in which four of the cestuis que trust participated. And such being the case, we take it to be well settled that where a cestui que trust takes part, or, in other words, participates in a breach of trust, whereby loss is occasioned to the trust estate, his interest in the trust property may be applied to make good the loss sustained by other cestuis que trust, who did not participate in such breach; or, as stated in some of the cases, if a cestui que trust takes part in a breach of trust, all
The defendant corporations,, claiming by subrogation, are entitled only to such interests as the cestuis que trust themselves under whom they claim would have been entitled. They can claim by subrogation no other or greater-interest. It follows then that Blanche Ehlen, an innocent cestui que trust, is entitled, out of the fund now in the hands of the trustee for distribution, to a sum equal to the one-fifth of the entire trust estate which passed into the hands of John F. Ehlen, trustee, under the will of his father.
There could be, it seems to us, no difficulty whatever in regard to this question, but from what was said in the latter part of the opinion of the Court in Marbury’s Case, 72 Md., 209. The real question, however, in that case, and we may say the only question, was whether the defendant corporations were liable for having permitted the shares of stock which stood in the name of John F. Ehlen, trustee, to be transferred by him without lawful authority. This trust property he held, under the will of his father in trust for such children as he then had, or might thereafter be born, and when the Marbury Case was heard, the trust thus created had not determined, the question as to the distribution of the trust property was not, therefore, before the Court. And if anything was said in that case in conflict with the views here expressed, it is sufficient to say, that it cannot be permitted to con
Order reversed, and cause remanded.