58 Md. 203 | Md. | 1882
delivered the opinion of the Court.
This appeal is from the refusal of the Circuit Court to rescind its order of the 21st of October, 1.880, authorizing and directing Thomas C. Maccubbin, to execute the power of sale contained in the will of Wolfgang Etch
Etchherger died in May, 1828, and, by his will he first gave to his two daughters, Mary and Elizabeth, during their natural lives, the “sole use and benefit” of all his property, “real, personal and mixed, each unequal share,” but provided, that “in no case shall the property or the revenues arising therefrom be subjected to the sale or control of their husbands” in case they should marry, and in case of the death of Elizabeth “without lawful issue, her portion or share shall pass over and belong” to Mary. The next-two items of the will are as follows:
1st. “Upon the decease of both my daughters, Mary and Elizabeth, it is my will and desire that the property hereby bequeathed to them for their use and benefit, shall be equally divided among the lawful issue of my son, John Etchherger, lately deceased, and the lawful issue of my two daughters, Mary and Elizabeth aforesaid, or the survivor of their issue, but in case the property thereby bequeathed, cannot be equally divided, then and in that case I hereby direct my executors hereinafter named. to sell the same, and distribute the proceeds thereof, share and share alike, among the lawful issue of my above named son and daughters or the survivors of them, the said issue.”
2nd. “I hereby nominate, constitute and appoint James Clark and Labon Welch, of the City of Baltimore, trustees, to take charge of the share or portion hereby bequeathed to my daughter Elizabeth, for her use, and to manage the same, and to act for her in that capacity, on all occasions as circumstances may require, during her natural life, giving her the full and sole use and benefit thereof, and
The testator then appointed Clark and Welch his executors ; and his intention that these same parties should act in the two distinct capacities of trustees for his daughter Elizabeth during her life, and as executors of his will, seems to us to be too plainly expressed to admit of doubt. And, in our opinion, it is equally clear that the power of sale and distribution, at the appointed time and upon the prescribed contingency, is conferred upon them in their capacity as executors. The will so says, and we find nothing in its provisions to control the plain meaning of the express direction that “my executors hereinafter named” shall sell the jmoperty and distribute the proceeds thereof. True the same parties are both trustees and executors, but this cannot enlarge their powers in either capacity nor can it work any transfer or interchange of such powers. By the terms of the will the duration of their office as trustees is limited to the life of Elizabeth. The trust was created for her benefit alone, and necessarily ceased upon her death, an event which might have occurred half a century before their power to sell as executors could be exercised. Nothing is more common than for testators to create trusts and make their executors trustees. The books are full of cases in which such provisions are found in wills, and the Courts have uniformly treated the two capacities as distinct though conferred upon the same individuals. Nor does it affect the case that the executors were authorized to exercise this power at a period long subsequent to that in which they were required by law to discharge their ordinary duties of collecting assets and paying debts and legacies; for it is perfectly competent for a testator to empower his
It appears that Clark renounced the trusts, and that Welch died after he had administered the personal estate and settled his final account thereof in the Orphans’ Court. The daughter Mary, married, and died in October, 1858, leaving several children. Upon her death, there arose an intestacy as to one-half of the estate during the life of Elizabeth, the will not having provided for the contingency of Mary’s dying first. In this state of case, the parties who were then the heirs-at-law of the testator, in November, 1858, filed an ex parte petition in the Circuit Court exhibiting the will, setting forth the above facts as to the renunciation of Clark, and the deaths of Welch and Mary, and praying the Court to appoint a trustee to take charge of that part of the estate devised to Elizabeth, and also to collect the rents of the other part, and account for the same to the petitioners as heirs-at-law. The Court (Krebs, J.,) thereupon, on the 29th of November, 1858, passed an order appointing John W. Keplinger, “trustee, in the place of Labon Welch, deceased, the sur
What then is the character and effect of this order? Upon its face, it deals simply with the office of trustee. under the will, which had then become vacant. We do not regard it as an order passed in pursuance of the power conferred by the Act of 1185, ch. 12, sec. 4, “appointing a trustee for the purpose of selling and conveying the property” directed by the will to be sold. The-Court makes no reference to that law as the source of authority for the order, nor does the petition ask for the appointment of a trustee for the purpose of effecting a sale. In truth, the time for sale had not then arrived, and did not in fact arrive for more than twenty years thereafter. There was, therefore, no necessity at that time for invoking an exercise of the special power granted by this Act of Assembly. There was, however, a vacancy in the trusteeship of a subsisting, continuing and active trust. There was also a pressing necessity for filling that, vacancy, and a Court of equity, in the exercise of its ordinary jurisdiction, had the unquestioned power to fill it, upon the application of any party interested. The filling of that vacancy is what the petition asked for, and what the order on its face professed to accomplish. To give it a broader scope, or to attribute to it the effect of an order under the Act of 1185, would be doing violence to its terms, as well as to the intention of the petitioners as manifested by the averments and prayer of their petition. Confined to this object, it was such an order as the petition prayed for, and such as a Court of equity had jurisdiction to pass without the aid of any statutory power. ■ We are, therefore, of opinion, that the power of sale contained in .the will was not vested in Keplinger by force of this order.
Maccubbin continued to act until the death of Elizabeth in July, 1880. Upon her death, the trust created by the will, and which had continued for fifty-two years ceased, and it then became the duty of the executors to execute the power of sale, in case the estate could not be equally divided among the parties then entitled. But there were no executors then in existence, and if no legislation had intervened, or if nothing had been done thereunder, it would have been competent for a Court of equity to have acted under sec. 66, Art. 16, of the Code, by which sec. 4, of the Act of 1185, cli. 12, is codified, and to have appointed a trustee to'sell and convey the property. But, subseq uent to the death of this testator in 1828, among other laws bearing upon the subject, the Act of 1865, ch. 162, was passed. By that Act, several sections were added to Art. 93, of the Code, which contains the testamentary law of the State; and by the first of these additional sections it was provided, that in “all cases in which a testator, by will, has directed his or her real estate to be sold for payment of debts, or for any other purpose, and the executor or executors therein named
We entertain no doubt as to the jurisdiction in equity .under such a bill. In the case of Eichelberger’s Ex’rs vs. Hawthorne, 33 Md., 588, the executors were empowered to sell the testator’s real estate after the death of his wife, to whom he gave- a life estate therein, and, acting under
This hill was filed on the 5th of August, 1880, and, Maccubbin, before answering it, filed a petition in the ex parte trust proceedings praying for an order directing him to sell the property, and an order to that effect was passed on the 21st of October, 1880. He then, on the next day, filed his answer to the bill, and in that answer he relies upon this order as giving him the right to sell, and as a reason why the bill should be dismissed. After this, Keplinger filed a petition in the ex parte case asking a rescission of this order, but this the Court, by an order passed on the 8th of December, 1880, refused. An appeal has been taken by Keplinger from each of these orders, and it follows.from the views above expressed, that they are both erroneous. We shall therefore sign a decree reversing that part of the order of the 8th of December, which dismisses so much of the petition of Keplinger as prays a rescission of the order of the 21st of October, 1880, and reversing and rescinding said last mentioned order. The decree will also direct the costs of this appeal to be paid by the appellee, Maccubbin.
Orders reversed.