90 A. 95 | Md. | 1914
John Q.A. Holloway died, seized of a large estate, leaving surviving him a widow, three sons and one daughter. By his last will he created what is commonly called a spendthrift trust, for the benefit of his son, John E. Holloway, and named the Safe Deposit and Trust Company of Baltimore trustee thereof. By the terms of the will the trustee was to hold the estate in trust for the son for his life, and thereafter for the benefit of the descendants of the son, but in default whereof, at his death, the principal was to pass to, or be held in trust for, other children of the testator surviving, subject to the retention by the trustee of $100,000.00 thereof, for the benefit for the life, or widowhood, of any widow of the said John E. Holloway. The fund was to be augmented at the death of the widow of the testator, and to further augmentation, contingent upon the death, without issue, of other children of the testator, during the lifetime of the said John E. Holloway. It was declared, in said will, to be the desire of the testator that the trusts created should be administered under the supervision of a Court of Equity. Accordingly, upon petition for that purpose, Circuit Court No. 2 of Baltimore City assumed jurisdiction over the administration of said trusts. *622
Later Anne M. Holloway filed in the cause a petition, setting forth that she was the wife of the said John E. Holloway, but, because of certain differences between them, they had entered into a formal agreement of separation, wherein it was provided that the trustee should pay to the petitioner out of the trust income of her husband under said will, the sum of two hundred and seventy-five dollars monthly, until the death of the widow of the said testator, and from and after the death of said widow, during the joint lives of the petitioner and John E. Holloway, one-half of the whole net income accruing from the entire trust fund, which might then be held by the trustee in trust for John E. Holloway. The petitioner called the Court's attention to the spendthrift clause of the will, and prayed that the trustee might be required to disburse the trust income in conformity with the said agreement. John E. Holloway filed an answer to this petition, through a solicitor, consenting to the passage of such decree as might be right and proper, and united in the prayer of the petition. There was filed with the answer a letter from John E. Holloway to his solicitor, authorizing him to appear for him, of which the following is a material part:
"It may, by reason of the especial provisions of my father's will or otherwise, be necessary to have this agreement confirmed by decree of court, so that the separate allowance which I am seeking to secure my wife by this agreement between us may be decided judicially to be a reasonable alimony to her payable out of my revenue.
"I desire you to represent me professionally in the premises, and I request and direct you to appear in my behalf to any proceeding which may be taken by either my wife or the trustee, looking to the confirmation by the court of the terms of the agreement of this date, or the obtaining of a decree in her favor for the allowance of proper alimony to her; and I further request and instruct you to take all such steps in my *623 behalf as may, in your opinion, be expedient or necessary for the full effectuation of my intention and the allowance of proper alimony to her."
The trustee also filed an answer, and in it especially called the attention of the Court to the spendthrift clause of the will, by setting it out in full; and in these words concluded: "The trustee now leaves, however, absolutely to the Court the true interpretation of said will and the determination of the validity of said agreement to affect the trust income, and submits to the passage of such decree as may to the Court seem right and proper."
The Court on the 29th day of May, 1911, passed a decree, ratifying and confirming the agreement "in accordance with the prayer of the petition and the answer thereto of said John E. Holloway," and directing the trustee to pay to the petitioner the portions of the income according to the terms of the agreement.
On the 2nd day of June, 1913, John E. Holloway filed in the cause a bill of review, seeking to have annulled and set aside the decree of May 29th, 1911, and afterwards, on the 21st day of July, 1913, by leave of Court, filed an amended bill for the same purpose.
The bill, which is a lengthy one, substantially alleges the aforegoing facts, and, in addition, alleges that the agreement of separation was prepared by and at the suggestion of George Whitelock, Esq., a member of the Maryland Bar, while on a visit to his wife at Biarritz, France, and that the latter, authorizing his solicitor to appear for him, was also prepared by the said George Whitelock; that while the execution of the said agreement, and the selection of a solicitor to represent him, were the unconstrained acts of the complainant, he did not have the benefit of independent legal advice. The seventeenth paragraph of the bill is as follows:
"And your complainant herein does further aver that, although he knew the text of the provisions of *624 the said last will and testament of his said father, he was not aware, until the third day of April, 1913, that the making of the said agreement and the consenting to the entering of the said decree, was in violation of the terms thereof, nor that the decretal order of the said Court when so passed did not divest him of his right to revoke such direction to the said trustee, and to demand and receive of the said trustee all payments thereafter accruing to him under the terms of said will, the said decretal order of the court to the contrary notwithstanding."
And further charges that the Court was without power or authority to pass the decree, and that the same is void, and prays that the proceedings may be reviewed and the decree annulled.
After the Court had overruled a demurrer to the bill filed by Anne M. Holloway, the trustee and Anne M. Holloway filed separate answers. The trustee answered that it had paid certain amounts to Anne M. Holloway in pursuance of the decree of May 29th, 1911, until served with the nisi order of Court of June 2d 1913, suspending payments until the further order of Court. Answering the 17th paragraph of the bill, set out above, the trustee said it had no knowledge of the facts therein contained, further than disclosed by the proceedings, except it had received from John E. Holloway under date of February 7th, 1911, the following letter:
*625"Under the terms of the trust, is it possible to pay to my wife, Anne M. Holloway, any part of my income? The same to be sent direct to her by the Safe Deposit and Trust Company. If such an arrangement is possible, I wish you to pay to her four thousand dollars per annum, and the balance of the income, of course, to be paid to me. I want to make some arrangement for Mrs. Holloway as I expect shortly to leave Biarritz for some time and want to be sure that she will be in funds during my absence."
To which it replied by letter of February 23rd, 1911, saying:
"Under the terms of your father's will, it was directed as follows: `All payments to be made by the trustee under this will to any cestui que trust, whether of principal or of income, shall be paid into the hands of the cestui que trust himself or herself, as the case may be, and not into the hands of another, whether claiming by the authority of such cestui que trust or otherwise.' And hence the income must be paid to you and we could not, under a direction, pay it to Mrs. Holloway."
The answer of Anne M. Holloway expressly pleads laches, as a bar to the granting of the relief prayed by way of bill of review.
The Court, upon the bill and answer, passed a decree setting aside the decree of May 9th, 1911, as of the 2nd day of June, 1913, the date of the nisi order suspending payments, and ordered the trustee to pay unto John E. Holloway, alone, the entire income accruing under the will of John Q.A. Holloway, and further ordered that the trustee be allowed credit for all payments made in pursuance to the decree of May 29th, 1911.
From this decree Anne M. Holloway entered an appeal and John E. Holloway a cross-appeal.
Should the Court have entertained this bill of review, after the lapse of time between the date of that decree and the filing of this bill, is the only question, of those presented, that we deem it necessary to consider to arrive at a proper determination of this case.
The theory upon which the complainant asks to have the proceedings reviewed and the decree set aside is, that there are errors of law apparent upon their face, in that the Court was without power to pass such a decree in dealing with a spendthrift trust. That a bill of review will lie for such purpose is not open to question. Miller's Equity, sec. 293, and *626 numerous cases cited in the notes. Having that right he seeks by his bill filed the 2nd day of June, 1913, to set aside a decree passed the 29th day of May, 1911, with his consent.
In the case of Presstman v. Mason,
In Miller's Equity, sec. 299, the rule is thus stated: "The filing of a bill of review for error of law is ordinarily restricted to the period limited for taking an appeal from the decree sought to be reviewed. Until recently an appeal might be taken at any time within nine months from the date of the decree, but now they must be taken within two months; but it is not to be understood that a bill of review may now be filed within that period only, instead of within nine months as heretofore practiced. It has been held that to authorize a bill of review for newly discovered facts, it must appear that the facts came to the knowledge of the party within nine months prior to the filing of the bill, by analogy to the period limited for appeals under the old practice. *627 The limitation of time as to appeals from decrees of the Court applies to the filing of bills of review."
Is there then anything peculiar to this case that would not render the above authorities applicable? The 17th paragraph of the bill, which we have quoted in full, was apparently introduced to explain why the bill had not been filed before, to explain away the delay. By it he says he was not cognizant, until just prior to the date of filing the bill, that the agreement and the decree were in violation of the terms of his father's will and further that he thought he could revoke the decree at his pleasure. We think both the letter to his solicitor, which he admits signing, and which it is to be presumed he knew the contents of, and the answer of the trustee setting forth the correspondence upon this very question, quite do away with the first of his contentions. That he thought he could revoke the provisions at pleasure, and only discovered this to be error after lapse of nearly two years, is not such a discovery of facts as to entitle one to an extension of time within which such a bill must be filed. Whelan v. Cook,
In our opinion, therefore, the lower Court should have dismissed the amended bill of John E. Holloway filed July 21st, 1913. The effect will accordingly be to leave standing in full force and effect the order of May 29th, 1911.
Decree reversed and amended bill dismissed, costs to be paidby the said John E. Holloway. *628
