53 Md. 550 | Md. | 1880
delivered the opinion of the Court.
Mrs. Susan E. Ryan, a widow lady residing in the City of .Baltimore, on the 11th of May, 1853, executed a bond under her hand and seal, whereby she promised and obligated herself to pay, twelve months after demand, “to the order of John M. Gordon, Esq., trustee, for the sole and separate use of Mary Grant Small, lately Mary Grant Jackson, his executors, administrators, or assigns, the sum of six thousand dollars with interest from date, at the rate of six-per cent, per annum, payable half yearly; to which payment well and truly to be made,” &c. At the same time, and written on the same sheet of paper, she executed, under hand and seal, a deed or declaration of trust, with certain limitations as to the uses and disposition of the fund created by the bond. This deed of trust was made to the obligee in the bond, and recites the bond, and the fact that it had been duly executed and delivered by the obligor. The deed professes to have been made in consideration of love and affection for Mary Grant Small, and for other reasons, and also the sum of five dollars. By this deed, according to its terms, its author granted, bargained and sold, conveyed, assigned and delivered, unto the trustee named, his heirs, &c., successors and assigns, the bond thereinbefore described, in trust, to hold the same, or, if and when paid, the principal sum thereof to be by him, or his successor in the trust, invested in either
It is admitted that both the bond and the declaration of trust were delivered to Jo.hn M. Gordon, the trustee, at the time of their date, and that he accepted, and has held the same, until they were produced- in Court by him in this cause, as exhibits with his answer. It is also admitted that Mrs. Eyan regularly paid the interest on the bond down to the time of her death, directly to Mrs. Small; and that there was no demand made of Mrs. Eyan during her life for the payment of the principal sum; and that the principal sum remains unpaid, though demand thereof has been made of Eohert Mickle, the executor of Mrs. Eyan.
Mrs. Eyan died in January, 1818, leaving a last will and testament, which has been duly admitted to probate,
A few months after the death of Mrs. Ryan the original bill in this cause was filed by Mrs. Small, against John M. Gordon, the trustee under the deed, and Robert Mickle, the executor of the deceased. The objects of the bill were to compel the collection of the bond for $6000 from the estate of Mrs. Ryan ; to require the trustee to give bond; and that the trust fund might be administered under the direction and supervision of the Court. The bill was afterwards amended, whereby the heirs-at-law and next of kin of the deceased were made parties, and also Mrs. Grady, the residuary legatee, and her husband; all of whom answered.
There is really no dispute in regard to the facts; the questions in the case are all purely questions of law.
The executor makes no controversy as to the existence and legality of the claim ; but, in his answer, he says, that whenever the Court shall decide to whom payment of the bond shall be made, it will be necessary that the person or persons, so entitled, shall produce the claim, duly authenticated, to him as executor, to be paid or satisfied in due course of administration of the estate. Mrs. Susan Gordon Grady, claiming as residuary legatee, by the answer of herself and husband, insists that the bond was a mere voluntary promise, without consideration, and therefore cannot be enforced against the estate of the obligor; but if that be not so, still, the bond is barred by the Statute of Limitations, and therefore cannot be enforced. Some of
The Court below decreed in favor of the complainant, that the executor of Mrs. Ryan should pay the amount of the bond to the trustee named in the decree, to he held in trust for the use and benefit of Mrs. Small, during her life, and at her death for her children, or their issue, if any then living; hut if no such child or issue he then living, the trustee is directed to transfer the trust fund, or the securities held therefor, to Mrs. Susan Gordon Grady, as residuary legatee under the will of Mrs. Ryan, absolutely. It is from this decree that the present appeal is taken. The executor does not appeal; hut the appeal is taken by Mrs. Susan Gordon Grady, as residuary legatee, and five of the brothers and one of the sisters, of the deceased, claiming under the declaration of trust.
On behalf of Mrs. Grady the decree is sought to he reversed on two grounds: First, that the bond was a mere promise of a gift, without consideration, and that the gift has not been so far consummated as to raise a trust that will he enforced by the Court; and, secondly, that if the bond he valid in its origin, it is now barred by the Statute of Limitations, and therefore not enforceable. But if these positions he found to he untenable, Mrs. Grady is then interested in maintaining the decree against the other appellants as well as against all other parties to it.
On the part of the other appellants, while seeking to' maintain the decree so far as it directs the payment of the bond, and thus opposing the positions taken on the part of Mrs. Grady, they seek to reverse the decree, so far as it determines that Mrs. Grady is entitled to the fund, as residuary legatee, on the death of Mrs. Small, without
Before proceeding to consider the questions thus presented, there is a preliminary question proper to he adverted to, raised on hehalf of Mrs. Wallace, one of the appellants, and that is, that all the legatees under the will of Mrs. Ryan are not made parties to the proceeding. This objection, we think, is wholly untenable. The general rule is well established that, as the executor is the trustee and proper representative of all persons interested in the personal estate, and has the duty cast upon him by law of protecting it against all improper demands, it is not necessary or proper to join either a pecuniary or a residuary legatee, or the next of kin, as parties to a hill against the executor for an account of the personal estate, however much interested such parties may he in defeating the claim upon which the suit is founded. 2 Wms. on Ex’rs, 1729 ; Brown vs. Dowthwaite, 1 Madd., 446; Lucas vs. McBlair, 12 Gill & J., 14. There are exceptions, it is true, to this general rule, hut the exceptions are always founded upon very special circumstances, such as do not exist in this case, so far as the pecuniary legatees are concerned ; and as to the necessity of making the residuary legatee a party we are not called upon to decide.
This preliminary question disposed of, we now proceed to the main questions raised upon this appeal. And first, as to the question whether there has been a perfected or an irrevocable trust declared, such as a Court of equity will take cognizance of and enforce, as against the estate of the declarant, and those claiming as volunteers under her, such as legatees and next of kin. Supposing Mrs. Grady, the residuary legatee, to he a proper defendant, this question is raised on her appeal; the executor making no question as to the validity of the claim.
This is the rule laid down by Lord Eldon in the leading case of Ellison vs. Ellison, 6 Ves., 656 ; S. C., 1 Lead. Cas.
In the case of Lechmere vs. Earl of Carlisle, 3 P. Wms., 211, the Master of the Eolls, Sir Joseph Jekydl, in answer to an objection taken to the enforcement of the trust in that case, on page 222, said: “Neither is the objection that the plaintiff is a volunteer of any weight; for this is the case of a trust, and every cestui que trust, whether a volunteer or not, or he the limitation under which he claims with, or without, consideration, is entitled to the aid of a Court of equity, in order to avail himself of the benefit of the trust. There can be no reason that the trustee should retain to his own use the trust money or estate, with respect to which he is barely an instrument, in breach of the confidence reposed in him. Any voluntary bond is good against an executor or administrator, unless some creditor be thereby deprived of his debt. Indeed, if the bond be merely voluntary, a real debt, though by simple contract only, shall have the preference; but if there be no debt at all, then a bond, however voluntary, must be paid by the executor.” The same principle is laid down, upon full consideration by Lord Hardwicke, in the case of Williamson vs. Codrington, 1 Ves., Sen., 511.
Indeed, the conclusion to be drawn from all the cases upon the subject is,' that if the author of the trust has perfected his gift in the way which he intended, so that there is nothing left for him to do, and nothing which he has authority to revoke or countermand, the trust is enforceable, irrespective of the want of consideration. Therefore, where the legal ownership of a right hy bond or covenant, enforceable at law, has been completely vested in a trustee for the benefit of a cestui que trust, a Court of equity will enforce payment of the bond or covenant, and execute the trust, notwithstanding the legal obli gation may have been purely voluntary. And as authorities directly
The next question is as to the bar of the Statute of Limitations, pleaded by Mrs. Grady.
In answer to this defence, it would he enough to say that the executor alone had the right to plead the Statute, (Code, Art. 93, sec. 99,) and as he has not thought proper to avail himself of the defence, no other person can do so for him. But without placing our opinion exclusively upon that objection to the plea, we think it clear that it can have no application to this case. The bond and the deed of trust must be construed together; and they plainly show upon their face the existénce of an express and continuing trust, to which, in a Court of equity, the Statute of Limitations has no application. This is a well established principle, and for Avhich no authorities need be cited.
Upon the whole, therefore, the executor of Mrs. Ryan making no question as to the legality of the bond, we think the Court below quite right in decreeing the payment of the hond, and the execution of the trust.
We come next to the question raised between Mrs. Grady, the residuary legatee, and those parties who claim
As we have already seen, the decree of the Court below directs tire trust fund to be transferred directly to the residuary legatee, upon the death of Mrs. Small without children. In support of this provision of the decree, it is contended on the part of Mrs. Grady, that the limitation over, in default of children of Mrs. Small, to the right heirs of the creator of the trust, is nothing more than an express declaration of intention that the fund should revert to her own estate. And this construction is sought to be maintained by-analogy to the principle established in the law of real estate; as where a limitation to the right heirs of the grantor will continue in himself the reversion in fee. As, for example, where a tine was levied to the use of the wife of the conusor for life, remainder to the use of B. in tail, remainder to the use of the right heirs of the conusor ; it was adjudged that the limitation of the use to the right heirs of the conusor was void as a remainder, and was merely the continuation of the old use in the conusor as the reversion in fee. Co. Litt., 22b; Harg., note 3, and Fearne on Rem., 51. If, however, this position were conceded to be correct, the decree could not be supported, for if the fund is to come back to the estate by way of reversion, as contended on behalf of the residuary legatee, it should not be directed to be paid over to the residuary legatee, but to the executor to be administered as part of the estate of the testatrix. But we do not think the position taken on behalf of Mrs. Grady can be supported. The testatrix, when she executed the bond and the deed of trust, was not making a grant of real estate; she was dealing with personal property.*' It is true, she directed the fund, in the event of its coming into the hands of the trustee, to be invested either in real or leasehold estate, stocks or mortgages, at his discretion; and the fund, therefore, at the death of Mrs. Small, may exist either in the form of
There are cases, certainly, and a considerable number of them, and of high authority, which hold that where the gift is to the heir or heirs by way of substitution for the original or preceding legatee or donee, as, for instance, where the gift is to “ A. or his heirs,” the word “ heirs ” is construed as meaning the persons who would be entitled to take the personal estate of A. in case of intestacy: that is to say, the word “ heirs ” is held to mean those persons who would be entitled to the personal estate of A., the first donee or legatee, by virtue of the Statute of Distributions, if that person had died intestate, including 4here-fore a widow, but not a husband. As examples of such cases, we may refer to Vaux vs. Henderson, 1 J. & W., 388, and note ; Gittings vs. McDermott, 2 M. & K., 69; Doody vs. Higgins, 2 K. & J., 729. But in this case the limitation of the estate is not by way of substitution, within the meaning of the authorities, but the terms right heirs are used simply to describe donees in remainder; and therefore the case falls directly within the principle laid down
We are, therefore, of opinion that there is error in the decree appealed from, in decreeing that Mrs. Grady, as residuary legatee, is entitled to receive the trust fund upon the death of Mrs. Small without children or issue living; ■and we are further of opinion that all those parties embraced within the description of right heirs of the deceased, Mrs. Ryan, at the time of her death, according to the . ordinary legal signification of those terms, will be entitled in remainder, in the event mentioned.
And having thus determined the rights of the parties in respect of the trust fund, the only remaining question relates to the appointment of a trustee. John M. Gordon, the original trustee, has declined to act further in the execution of the trust. By the deed of trust he was fully •authorized and empowered to appoint, by deed, a successor in the trust, and to assign the bond or trust fund to such person as he should so appoint. He states in his answer that he had declined to act further, and that he had appointed O. W. Wallace in his stead as trustee; and he exhibits an instrument under his hand and seal, dated the 28th of March, 1818, whereby he executed the power of ■appointment, and assigned and transferred the bond to the new trustee so appointed. There is no eyidence in the record to show whether this deed of appointment and assignment has ever been delivered to and accepted by the new trustee. If the deed has actually been delivered to and the trust accepted by him, it was not proper to supersede him hy the appointment of a new trustee by the Court. The legal title to the bond would be in him. If he has accepted the trust, he should be brought in and required to give bond under the statute. If he has not accepted the trust, or should fail to give the bond required, -then a trustee should be appointed by the Court. All
Decree reversed, and cause remanded.