76 Md. 186 | Md. | 1892
delivered the opinion of the Court.
The bill in this case was filed by the executors and trustees under the will of the late Lambert Gittings against the Johns Hopkins University, to obtain a decree for the specific performance of a contract of sale and purchase of two adjoining warehouses, in the City of Baltimore, sold by the trustees to the University, as part of the undivided estate of Lambert Gittings, the testator. The sale was formally and properly made at public auction, and was evidenced by writing, and the payment of $1000 as a deposit by the purchaser. There is no question or doubt made or suggested as to the sufficiency of the title of the testator, or as to the fairness of the sale by the trustees. But a question is raised by the purchaser as to the existence of power or authority of the trustees to make a valid sale of the property under the will of the testator, in the events that have occurred since the date of the will. The property is valuable, the price bid therefor being $60,800; and these two adjoining warehouses were offered and sold by the trustees for the purpose of enabling them to make division of the estate of the deceased among the devisees and legatees, according to the direction of the will.
Mr. Gittings, the testator, made his will in 1810, and died in July, 1881. He left surviving him two married daughters with children, and three granddaughters, the children of a deceased daughter, and which granddaughters were also married and had children.
The will of the testator was the subject of judicial construction by this Court, in the case of Dulany, et al. vs. Middleton, et al., 72 Md., 67; and to that proceeding
The estate of the testator was large, and consisted of real and personal property of various descriptions, and this entire estate he devised and bequeathed to three trustees (who were also named as executors) and the survivors or survivor of them, their heirs and assigns, to hold the estate to the uses and upon the trusts expressed in the will. He directs his debts and funeral expenses to he paid, and certain amounts to be paid out as legacies, and $10,000 to he invested to raise certain annuities, the principal of which sum to revert to his estate. He-then directs that the trustees shall hold in trust the entire residue of his estate and property, together with the reversion of the sum set apart to raise annuities, and that they shall first divide the whole of such estate devised' in trust, into three equal parts, having reference to the value of each part. Provision is then made for the allotment of the parts, one part to each of the two surviving daughters, Mrs. Middleton and Mrs. Buchanan, and one part to the three granddaughters, representing-their deceased mother, Mrs. Simons; and this latter one( third part to he sub-divided into three equal parts, and one of the parts of such sub-division to be allotted to each of the three grandchildren in severalty. These several parts allotted to the two daughters and the three granddaughters the testator declared should he held “to the-separate irse and benefit of his said two daughters and three granddaughters respectively, according to the parts chosen by them, as the same shall be allotted in the before-mentioned division, free from any control of any present
Before, however, there could be an extinguishment of the trust pro tanto and a transfer of the respective shares to the granddaughters, or to either of them, as directed by the will, it was a necessary prerequisite that all legacies and charges upon the estate should have been paid
After directing the manner of dividing the estate into shares, and allotting the same to those entitled as cestuis que trust, the testator declared that it was his will and intention that his trustees should have power and authority to sell any part of his estate, real or personal: — First, to pay debts and legacies; second, to change investments, or to convert unsafe and unproductive stocks, and other personal or real estate; and third, if necessary or advisable, for the purpose of an equitable and satisfactory division of his estate, between his two daughters, Mrs. Middleton and Mrs. Buchanan, and bis three granddaughters, the daughters of Mrs. Simons, deceased; and that the trustees should have like power in the case of and for the purpose of the sub-division as among his three granddaughters. It was in the supposed or intended exercise of this power of sale for the pm-pose of division of the estate, that the sale was made by the trustees to the present appellant.
It is alleged in the bill, and not denied by the defendant, that the residuary real estate of the testator is still undivided. It is admitted that Mrs. Eleanor A. Dulany, one of the three granddaughters entitled under the will, attained the age of thirty years before the death of the testator; and that Mrs. Louisa Gillett, another of those granddaughters, attained the age of thirty years in January, 1891. But it is alleged and insisted by the trustees in this case, that these facts in regard to the age of the granddaughters are wholly immaterial as regards the duty of the trustees to make division of the entire estate; and that their power, to that end, to sell the indivisible warehouse property, and any other real estate
The defendant, by its answer, takes the position that the trust, as to the interest or share of Mrs. Dulany in the residue of the estate of her grandfather, never attached or had operation, because of the fact that she had attained the age of thirty years before the testator’s death ; and that the trust ceased to have operation, as to Mrs. Gillett’s share or interest in the estate, immediately upon her attaining the age of thirty years, though she attained such age after the death of the testator. In the answer, the objection is stated thus: That the power of sale for the purpose of division of the whole residue of the estate which was given by the will, was conferred upon the trustees as trustees only, and that such power ceased as to any and all portions of the whole residue of the estate, which were discharged from said trust on the arrival of any one or more of the cestuis que trust at the designated age of thirty years; and that it is matter of doubt to the defendant whether a trust, which was intended to operate upon the whole residue of such estate in its entirety, did not cease to have any operation when it could no longer operate upon such whole residue in its entirety.
In the case of Dulany, et al. vs. Middleton, et al., supra, the fact that Mrs. Dulany had attained the age of thirty years before the death of the testator, did not appear in
It is certainly clear that such devisees and legatees can only take their respective shares upon division and allotment of the estate, as directed by the will. Division must precede allotment. No one or more of such devisees can select any particular piece or parcel of property, constituting a part of the general residue, and demand a transfer or conveyance of it, though the period or event for the cessation of the trust has occurred, as
It is unquestionably true, as a general principle, that if a power be given to trustees to be exercised during the continuance of the trust, such power cannot be exercised after the time when the trust has in fact, by specific limitation, been terminated, even though, from the delay of the trustees, it has happened that the trust has not been completely executed. But it is equally well settled, that if the trust continues as to part of the property, as it unquestionably does in this case, though it may, by the terms of the instrument creating it, have ceased as to part, the power will remain in force, and can be exercised over the whole, for the benefit of all concerned, unless there is a clear and imperative direction to the contrary. This is the principle of the case of Trower vs. Knightley, 6 Madd., 134, a decision by Sir
We entertain no doubt of the continued existence of the power of sale over the entire property sold to the appellant, nor of the right of the trustees to exercise it; and therefore the decree of the Court below should be affirmed.
None but the trustees and the purchaser are parties to this case. But it would seem to be well settled that there is no necessity or propriety, according to English
Decree affirmed.