Long v. Long

62 Md. 33 | Md. | 1884

Lead Opinion

Alvey, C. J.,

delivered the opinion of the Court.

The bill in this case was filed by some of the grandchildren of Kennedy Long, deceased, claiming as devisees in remainder under the will of their grandfather ; and they pray for partition or sale of the property devised to them and others, and also for an account of rents and profits of the property from the parties in possession thereof.

Kennedy Long, the testator, made his will in 1823, and died in 1824. He left six children surviving him, named Andrew K. Long, J ames H. Long, Thomas J. Long, Eliza, who had married Dr. Balfour, (and who was a widow at the time of the death of her father,) Mary Jane Long, who afterwards married Moses L. Knapp, and Amelia Jane Long, who subsequently married Thomas Worthington. The testator also left a widow, Elizabeth Long, who survived until June, 1850. At the time of the death of the testator some of his children were infants under the age of twenty-one years. He left a small personal estate, and certain real estate, situated in or near the limits.of the Oity of Baltimore as then defined, and described in the will as the “ dwelling place."

As some of the questions in the case depend, to a large extent, upon the nature and quality of the estates devised, it is material to state, somewhat at large, the provisions of the will.

After directing the payment of his debts and funeral expenses, and making some few specific bequests, the testator proceeded to give directions to his executors, after-wards named, as to how they should dispose, of and administer his personal property, and he then bequeathed to his widow an equal share in all the remainder of his personal ■estate. And as to all the rest of his personal estate, and as to all his real estate, of every kind and description, he devised and bequeathed the same to his friends, James Hutton, James Wilson, John Wilson, and his brother, Henry Long, “ and the survivors and survivor of them, ■and the heirs, executors, and administrators of such survivor, in trust and special confidence, nevertheless, for the benefit of, and to be equally divided between, all and ■every the children I now have, and the child or children I may hereafter have, and their descendants, in manner, upon the conditions and subject to the limitations and restrictions hereinafter mentioned, that is to say:"

That his son, Andrew K., during the term of his natural life, and no longer, should receive the income of his share; “and from and immediately after his decease, the principal of his share or proportion shall descend to, and be equally divided between all and every the child or children •of him, the said Andrew K., their heirs, executors, administrators and assigns, in equal proportions, as tenants in common, share and share alike.”

That his sons Thomas and James, respectively, until the latter should attain the age of twenty-four years, should receive, or have applied to their respective uses,, the rents, &c., of their respective shares, and upon James, attaining that age, he and Thomas should be put into possession of, and receive the principal of their respective-portions, to hold to them respectively, and their respective-heirs, executors, administrators or assigns forever, in. severalty.

That his daughters, Eliza Balfour, Mary Jane Long,, and Amelia J. Long, should, during their respective lives,, take, receive and enjoy, or have applied to their several uses and benefits, the dividends, rents, issues, profits and income of their respective portions or shares, free from the control and liability for the debts of their husbands “and from and immediately after the decease of my said daughters, respectively, the principal share or portion of her so dying, shall descend to, and be equally divided between all and every her child or children, their heirs, executors, administrators and assigns, forever, as tenants in common, in equal proportions, share and share alike. And in the event of the decease of any of my children under age, and without lawful issue, the share or proportion of him, her or them, so dying, shall descend to and become the estate and property of the survivors or survivor of them, my said children.”

The testator further provided and declared, that it was. his will and desire, and he' so ordered and directed, that his “dwelling place” be rented out as soon as his executors might think proper, for the benefit of his children; “and I do expressly forbid that any part or parcel of that property be either sold or leased until after the decease of my beloved wife, or until my youngest child is of age and it is also my desire that my children live with their mother, provided she reside in Baltimore, during her widowhood, or as long afterwards as my executors approve of their treatment, and that she be reasonably compensated from the income arising from their respective parts of my estate, for her trouble and attention to them.”

The testator then nominated and appointed as his executors and as guardians of his children, the same four persons to whom he had, in a previous part of the will, devised and bequeathed his estate in trust; and as executors he invested them “with full power and authority to divide and make partition of my estate among those entitled thereto, agreeably to this, my will, or for that purpose to sell, dispose of and convey the same to the purchasers, if a division cannot otherwise be made. And I do also vest in and hereby give the power to my executors to make, execute and deliver, in due form of law, all deeds, conveyances and other instruments of writing incident and necessary to the settlement of my estate. And in the event of the decease or refusal to act of either of my said executors, I give to the survivors or survivor, or acting ones of them, all the power and authority given to them jointly, freely committing to them the management of my earthly concerns, having the uttermost confidence in their integrity."

The widow renounced the provisions of the will in her favor, and elected to take what the law allowed her instead. James Hutton and the two Wilsons declined to act as executors, and though there is no formal evidence of disclaimer, it does not appear that they ever accepted the trust conferred upon them by the will, or that they ever interfered with the estate in any way whatever, and all the circumstances of the case concur in making it clear beyond doubt that they never did in fact accept the trust.

Henry Long, therefore, became the sole trustee, and also the sole executor. And the principle is clear that where some of the trustees disclaim or decline to accept, in a case like the present, the remaining trustees or trustee will take not only the entire legal estate devised or granted, but also all the powers and authorities intended that they should exercise as trustees, and which are requisite for the execution of the trust. Small vs. Marwood, 9 B. & Cr., 300; Nicholson vs. Wordsworth, 2 Swanst., 365; Watson vs. Pearson, 2 Exch., 581, 594; Hill on Trust., 226.

As sole executor Henry Long proceeded in the settle-, ment of the personal estate, and the distributive share of each child was ascertained to he about $1200. The only remaining property subject to the trusts of the will was the “dwelling place,” which the testator had forbidden to he sold or leased, until after the death of his wife, or until his youngest child should come of age. As long as Henry Long remained in the State he superintended this property as executor and trustee; hut shortly after the settlement of the persoual estate he removed to the State of Illinois, where he became a permanent resident. From the time of his removal there was no person present to exercise supervision over the property, and it was suffering serious detriment for the want of proper management.

In this state of things in March, 1833, the widow, and all the children of the testator, the devisees under the 'will, except Amelia J. Long, who was still under age, joined in a petition to the County Court of Baltimore County, a Court of general equity jurisdiction, representing the facts of the case, and praying that Henry Long, the trustee, be removed, that some other person he appointed in his stead, and that the “dwelling place,” the only real estate left by the testator, be sold, and that the proceeds of sale he paid to the parties entitled; and the will of the testator was made an exhibit with the petition. Amelia Jane Long, the infant, and Henry Long, the trustee, were made parties defendants. Henry Long answered, admitting the facts alleged, and consented to his own removal, and the appointment of some other person in his place. He did not, however, join in the application for the sale of the property, nor did he admit that a sale was wise or proper. He was silent upon the subject. The infant defendant answered by her guardian, admitting the facts, and consented to a sale. Whereupon a commission was issued out to three disinterested freeholders, to view the premises and report to the Court whether it would he for the interest and advantage of the infant, and all the parties concerned, that a sale should be made of the property in the proceedings mentioned. The commission was executed and returned, and in their report, the commissioners represented the condition of the property as had, with a prospect of its "becoming much worse. They reported that the property was yielding but small rent, and they strongly recommended a sale of it, as being to the decided advantage of all the parties concerned. They valued' the property at $5,000. Thereupon the Court, on the 8th of April, 1833, passed its decree; and after reciting that it appeared to the Court that the property had suffered from the neglect of the trustee, and further “that it would be for the interest and advantage of said infant, and all persons concerned,” that the property should he sold, it proceeded to decree that Henry Long be removed from his position as trustee, and that Josias Pennington he appointed in his stead, to execute the trusts created by the will; and it further decreed that the property be sold by the new trustee thus appointed. The decree required the proceeds of sale to he brought in to he distributed under the direction of the Court; and, upon full payment of the purchase money, the trustee was authorised- and directed to make to the purchaser a good and sufficient deed, conveying to such purchaser the property sold, “free, clear and discharged from all claim of the parties to the cause, complainants and defendants, and those claiming by, from or under them, or either of them.” The new trustee, some short time after the decree, filed his bond and assumed the duties of the trust. He sold the property for $5,500, and the sale was reported to and ratified by the Court; and the purchase money having been paid, the deed was made to the purchaser in pursuance of the decree. Auditor’s accounts, were stated and the proceeds of sale distributed; and the distributive shares of the devisees for life were audited to the trustee, to he invested by him under the order of the Court, for the benefit of the tenants for life, and for the benefit of those in remainder after the death of the life-tenants. By the order of ratification, of the 16th of December, 1833, the trustee was directed “to pay over the amounts now due and payable to the several parties, respectively entitled thereto, and to invest in his name as trustee,,etc., the amounts thereby appearing to be due to the several parties for whom he is directed to hold the same in trust;” .and he was required to give bond for the faithful performance of that duty. The amounts distritributed to James H. Long and Thomas J. Long were paid over to them directly, they being entitled absolutely under the will; but the other shares were invested as directed by the Court. The interest on these shares thus, invested was paid over by the trustee to Andrew K. Long, Mrs. Balfour and Mrs. Knapp during their respective lives, and to Mrs. Worthington until 1811, from which time she refused to receive it.

Mrs. Knapp died in 1863, leaving six. children, and all of them received their proportions of the share of the proceeds of the sale of the property invested for their mother for life, under the order of Court, as appears from certain entries of the trustee, and releases to him dated in 1863 and 1868. Andrew K. Long died in 1866, leaving six children, and the share of the proceeds of the property sold that was invested for him for life, has been divided and paid over to his children by the trustee, as is evidenced by the receipts and releases to the trustee, dated in 1810. Mrs. Balfour died in 1810, without issue, and the share of the proceeds of sale Invested for her during life, has been paid over, so far as shown, to those entitled to receive it. Mrs. Worthington died in 1881, since the filing the hill in this cause, leaving eight children surviving her, three others having died in her life-time. The share of the proceeds of sale that was invested for Mrs. Worthington for life, and for the benefit of her children after her -death, remains in the hands of the trustee, the children declining to receive it.

The bill in this case was filed the 1st of June, 1880, by the children of Andrew K. Long; the children of Mrs. Knapp and of Mrs. Worthington being made defendants; but after the death of Mrs. Worthington her children were joined as plaintiffs.

The bill proceeds upon the theory and assumption that the estates limited in remainder to the children of Andrew K. Long, Mrs. Knapp, and Mrs. Worthington, in the property described as the “dwelling place,” were not disposed of or in any manner converted, by the sale under the decree of Baltimore County Court, in 1833; and those -children are now claiming their respective interests in that property as if no sale had ever been made.

The numerous defendants, being owners and occupants -of the property, by their answers, have set up various defences ; first, that the decree and sale of 1833, operated upon, and transferred to the purchaser, the entire right and estate, of which the testator died seized, in the property sold; secondly, that the claim of the plaintiffs is barred by the Statute of Limitations; third, that the claim is barred by lapse of time and laches; and fourth, that the claim on the part of the children of Andrew K. Long and Mrs. Knapp is entirely concluded by acquiesence and ratification.

1. With respect to the jurisdiction and power of the County Court to pass the decree, under which the sale was made, we can entertain no doubt. The clause of the will forbidding the sale or lease of the property until the occurrence of certain events, did not affect the jurisdiction of the Court. The Court was one of general equity jurisdiction, and the subject-matter and the parties fell within the scope and limit of that jurisdiction. The object of the application was, in the first place, to have one trustee removed and another appointed in his stead'; and, in the' second place, to have real property that was held in trust sold for the- interest and common benefit of all parties concerned. These were objects clearly within the jurisdiction of tbe Court; and while it may have been error to authorise the sale, in view of the special provision of the will, yet that was matter of construction upon which the Court was competent to pass, and for any error committed in that respect, the proper remedy was either by bill of review in the same Court, oían appeal to a Court of review. The general and well settled rule of law in all such cases is, that when the proceedings are collaterally brought in question, and it appears on their face that the subject-matter was witbin the jurisdiction of the Court, they are not impeachable for mere errors or irregularities that may be apparent., Such errors and irregularities must be corrected by some direct proceeding, either in the same Court to set them aside, or on appeal. If, however, there be a total want of jurisdiction, either of parties or subject-matter, the proceedings are void and can confer no right, and Will be rejected, though the objection to them be taken in a collateral proceeding. But where there was jurisdiction in the Court, the erroneous or improvident exercise of it, or the exercise of it in a manner not warranted by the evidence before it, whether that be in respect to tbe construction of written instruments, or deductions drawn from unwritten proof, the errors, however apparent, are not to be corrected at tbe expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction. The County Court having jurisdiction over the subject-matter and the parties, it had a right to decide every question that arose in the cause, and whether the decision he right or wrong, it must he respected hy all other Courts when coming collaterally in question. Any other principle would unsettle and render insecure the larger portion of the titles of the country. This Court, in common with the other appellate Courts of the country, has repeatedly asserted these principles to their fullest extent. Hunter vs. Hatton, 4 Gill, 115; Clark & Jackson vs. Bryan, 16 Md., 174; Cockey vs. Cole, 28 Md., 244, 245; Schley vs. City of Baltimore, 29 Md., 46; Thompson vs. Tolmie, 2 Pet., 157; Voorhees vs. Bank U. S., 10 Pet., 449; Comstock vs. Crawford, 3 Wall., 396; Hall vs. Law, 102 U. S., 461.

The decree, therefore, of the County Court, made in 1833, hound all the parties to the cause, to the full extent of their rights and interests in the property, whether legal or equitable, and the sale and the conveyance hy the trustee transferred to the purchaser all the right, estate and claim of the parties to the cause, existing at the date of the decree. It was with the entire interests and estates of the parties that the decree dealt, and hence the trustee was directed to sell and convey the property and estate “free, clear, and discharged from all claim of the parties, and those claiming by, from or under them, or either of them.” The devise to Mrs. Balfour was for her life only, with remainder to her children, and in the event of her death under age and without lawful issue, the share so devised was given over to the surviving children or child of the testator; hut there was no disposition made of this share in the event of the devisee for life dying after attaining age and without issue. And as Mrs. Balfour was over twenty-one years of age at the time of the application for sale, and died in 1870, without issue, it follows that there was an intestacy in respect to this share, and a reversion in fee vested in the heirs-at-law of the testator at the time of his death ; and as all these heirs-at-law were parties to the cause in which the decree passed, this reversionary estate passed to the purchaser. Neale vs. Cosden, 34 Md., 421, 426; Heald vs. Heald, 56 Md., 300.

But the most material question in this case is, whether the children of Andrew K. Long, Mrs. Knapp and Mrs. Worthington, entitled in remainder under their grandfather’s will, were substantially and legally represented, ■so as to be bound thereby, in the proceedings that resulted in a decree and sale of the property, though they were not in esse at the time. To determine this question, we must ascertain what estates were given by the will, and their connection and dependence the one upon the other.

Looking to the context and the whole scheme of the will, it would seem to be quite manifest that the testator intended that his son Andrew K. Long, and his three daughters, should take equitable life estates only, and that the trustees should hold the legal estate during the respective lives of these children of the testator. The use therefore was executed in the trustee and his heirs, during the respective lives of these life tenants, and not in the life tenants themselves. Ware vs. Richardson, 3 Md., 505; Griffith vs. Plummer, 32 Md., 74; Hapland vs. Smith, 1 Bro. C. C., 75; Doe vs. Hicks, 7 T. Rep., 433, 437; 1 Perry on Trusts, sec. 305. But with respect to the devises in remainder to the grandchildren, it is declared that from and immediately after the death of the parent, the equitable life tenant, the principal of his or her share shall descend to and be equally divided between all and ■every the child or children of such life tenant, their heirs, executors, administrators and assigns, in equal proportions, ■as tenants in common, share and share alike. This language gives an absolute, uncontrolled estate, and it does not import that the children were to take through their parents by descent, but they take as purchasers by way of ■devise. And such being the case, it would seem to be ■clear that the devisees in remainder take legal estates, and not equitable estates as did the devisees for life. Ware vs. Richardson, 3 Md., 507, 554; Griffith vs. Plummer, 32 Md., 74; Shreve vs. Shreve, 43 Md., 382. There is no active duty or exercise of discretion whatever required of the trustees in respect to these devises in remainder. The direction that the shares so given in remainder shall be equally divided means nothing more than that each child of the several tenants for life shall have an equal interest in the share devised to his or her class in remainder. It required no active agency of the trustees to ascertain such interests; the language and form of the devise being that most usually employed in devises and bequests to several parties, intended to be equally benefited, and where no trustees are interposed. Each set or class of devisees in remainder take as tenants in common, share and share alike. Therefore, though the devise to the trustees was to them and their heirs, and thus in terms giving them an estate of inheritance in the realty, yet the trust created was not required for any practical or useful purpose beyond the lives of the equitable life tenants; and it is not to be supposed that the testator intended that the trust should continue through all generations. The principle is now firmly settled upon the most indubitable authority, that the extent of the legal interest of a trustee in an estate given to him in trust is measured, not by words of inheritance or equivalent terms, but by the objects and extent of the trust upon which the estate is given. Or, as the proposition is in other words stated, “although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried farther than the complete execution of the trust necessarily requires.” 1 Perry on Trusts, sec. 312; Doe vs. Sicks, 7 T. Rep., 433, 437; Doe vs. Simpson, 5 East, 163; Player vs. Nichols, 1 B. & Cr., 342; Webster vs. Cooper, 14 How., 488, 499; Young vs. Bradley, 101 U. S., 782. And in regard to the personalty, the principle is, that when a trust has been created, and all the purposes of the trust have ceased, or are at an end, the absolute estate is in the person entitled to the last use, unless there is an apparent intention to the contrary. Rice vs. Barnett, 1 Speer’s Eq. Rep., 579; Denton vs. Denton, 17 Md., 403; 1 Perry on Trusts, see. 311.

Nor can the powers confided to the same persons as executors as those to whom the estate was devised in trust, be invoked to enlarge the estate or powers of the trustees. The fact that the same party is both trustee and executor cannot operate to enlarge his powers in either capacity, nor can it work any transfer or interchange of powers. In such case the will must be construed as if the respective offices and duties had been .conferred upon different persons. Keplinger vs. Maccubbin, 58 Md., 203. In this case the powers conferred upon the executors, of partition or sale, were never attempted to be exercised; and, of course, no title can be derived or supported through such powers.

Now, seeing that the trustee held the estate in trust only for the lives of the first devisees, the question is, how were the devisees of the legal estate in remainder represented in the proceedings for the sale ? As before stated, they were not theniw esse, and therefore the estates devised to them were but contingent remainders. The Court, and the parties before the Court, proceeded as if it was a right and proper thing to do for the interest of all concerned, to convert the estate into money, and to let the fund stand .in the place of the property sold. If, however, that was done without warrant or authority of law, as to parties ultimately entitled, and the estate of such parties has been illegally sold by a judicial proceeding to which they were no parties, and had no legal representation therein of their interests, then, though it may operate a great surprise and hardship upon innocent parties, the Courts have no alternative but to uphold the rights of those whose interests have been thus illegally dealt with. Upon what principle, then, can it he maintained that these plaintiffs have been legally divested of their property by the decree and sale of 1833, as the law stood at that time ? as since that time provision has been made for such cases by statute: Act of 1868, ch. 213. It would seem to he clear, upon the plainest principles, that if some one of the real or substantial parties to the cause did not hold such relation to the property, and to these plaintiffs as contingent remaindermen, as made him a legal representative ■of the inheritance, so as to hind it by recovery against him, these plaintiffs were not represented in that proceeding, ■and are' therefore not bound by the decree. The widow of the testator was a party, but she had only the interest •of an unassigned dower in the real estate of her husband. The children of the testator, holding equitable life estates in the shares that were devised to the grandchildren in remainder, were parties, hut they did not, certainly, as •devisees, represent the inheritance ; and the acting trustee, holding the legal estate in the freehold only for the lives of the equitable life tenants, with no powers, in his •character as trustee, to enable him to sell or convert the real estate into money, clearly could not legally represent those entitled in remainder to the inheritance, as the law then existed. It is true, the heirs-at-law of the testator, who were parties to the cause, held the legal fee in the shares of the realty devised to the grandchildren in remainder until those grandchildren should come into being, or until the death of their parents without issue. But it is a settled principle, that where a person is seized in fee •of an estate which is liable to he defeated by a shifting use, conditional limitation, or executory devise, the inheritance is not represented in a Court of equity by the person who has the fee thus liable to he defeated, except as against himself and those who take under him. Goodess vs. Williams, 2 Y. & Coll., N. R., 595. And the reason of that principle applies here in all its force. It follows, therefore, that the inheritance, the fee simple estate in remainder, as to the "present claimants, was not represented by any competent party to that proceeding. There was no prior estate of inheritance taken under the will, and therefore there could be no representation of those contingently interested in any subsequent estate which would he liable to he defeated by a recovery of such first estate of inheritance. The case falls fully within the principle of the cases-of Downin vs. Sprecher, 35 Md., 474; Shreve vs. Shreve, 43 Md., 382, and Timanus vs. Dugan, 46 Md., 402, and those cases must control the decision of the question here presented.

What we have said in regard to the want of representation in the sale of the property, only applies to the real estate as such, and not to any personal or leasehold estate. In regard to the latter, the trustee held the legal estate until the trust was ended by the termination of the lives-of the life tenants ; and he was the sole representative of that estate. Being a party to the decree whereby the leasehold interest was ordered to he converted into money, those entitled in remainder, especially as they were not in esse at the time, are hound and concluded by the decree. 1 Perry on Trusts, secs. 311, 318, and 330, and cases cited.

2. Having disposed of the question as to the effect of the decree and sale upon the interests of the parties claiming in remainder, we come next to the defence of the Statute of Limitations relied on by the defendants.

If this were an action at law, as perhaps properly it should he, instead of a hill in equity, it is very clear that the Statute of Limitations as a technical bar could have no application as against the right to recover the estate itself, though it would have against the claim for rents and profits. The supposition that the legal fee of the estate remained in the trustee, and that the holding, of the defendants was adverse to him as the representative of the estates in remainder, we have shown to he unfounded. The defendants claim the title that was conveyed hy the trustee’s sale and deed of 1833, and by that sale the purchasers acquired at least all the right and title of the several devisees for life, including the legal estate held by the trustee. It was not therefore until the termination of the life estates, that the parties so claiming and holding could be regarded as holding by wrong as against those in remainder. In other words, the remaindermen in fee had no right of entry until the previous equitable life •estates, protected by the legal estate in the trustee, had expired. Preston vs. Evans, 56 Md., 476; Jackson vs. Schoonmaker, 4 John., 390. And it has been deliberately held by this Court, that a Court of equity in applying the Statute of Limitations analogically, as to the right of entry, will not permit the claim of a party to be affected by any •devolution of time short of that which would have barred him at law in an action of ejectment. Dugan vs. Gittings, 3 Gill, 138, 161; Needles vs. Marlin, 33 Md., 619. Mrs. Knapp died in May, 1863, Andrew K. Long in August, 1866, and Mrs. Worthington since the filing the hill in this cause, which was on the 1st of June, 1880; and consequently the twenty years since the right of entry accrued had not expired, as to any of the parties claiming, at the time of the institution of the suit.

3. The defendants also rely upon laches and lapse of time, as distinct from the defence of the Statute of Limitations, as against the claims of the children of Andrew K. Long and those of Mrs. Knapp. But we do not think, ■on the facts of this case, that that defence, standing alone, •ought to prevail. Lapse of time, however, may have a very considerable influence when considered in connection with the defence made in this case, of estoppel and ratification, next to he noticed.

4. The defendants have produced the account of the •trustee, Mr. Pennington, showing the state of the family of Col. Kennedy Long, the amount of the funds in his. hands as trustee, realized in part from the sale of the real estate under the decree of 1833, and to whom and when paid over; and this account, and the entries therein of' payments and disbursements to the several children and descendants of Kennedy Long, are admitted to be correct; and the trustee being dead, it is agreed that the account shall be accepted as evidence. The defendants, have also produced and rely upon certain receipts and releases to the trustee,. Mr. Pennington, by the children of Andrew K. Long and Mrs. Knapp, for their shares or proportions of the proceeds of the sale of the property,, which had been invested under the order of the Court for their use; and it is insisted that the reasonable legal effect of such evidences of receipts of payment and release is to work a ratification of the sale by which the fund was. produced. The receipts and releases produced embrace the entire share set apart for Andrew K. Long and his children;. •and all the children left by Mrs. Knapp, except Mrs. Hageman and Moses L. Knapp, appear to have given similar receipts and releases upon the receipt of their proportions, of the share set apart for their mother and her children. The record does not contain a release from Mrs. Hageman, one of the children of Mrs. Knapp, though the account of the trustee, admitted to be correct, shows that she received her proportion of the fund, as did the other children. It is not unreasonable therefore to suppose that she executed to the trustee a release similar to those executed by her sisters. Moses L. Knapp, the only son of Mrs. Knapp, died in 1874, under age and intestate.

It is contended for the pláintiffs that before these receipts and releases should be allowed to have the effect claimed for them, the Court should be satisfied that the money was received and the releases were given with full knowledge of all the facts, and with an understanding by the parties of their legal rights in respect to the subject-matter. This is certainly correct as a principle. But is the Court to assume, in the total absence of anything to the contrary, upon which reliance can be placed, that there was either ignorance of fact or want of knowledge of legal rights, on the part of the parties receiving the money and executing the releases, in order to avoid the legal consequences that might otherwise result therefrom? The releases are quite full in their reference to the source and origin of the fund. It is impossible to suppose that any intelligent person could sign such releases without knowledge of the manner in which the fund was derived. Indeed, the strong inference is, from the whole history of the case, that these parties understood perfectly well what had been done in regard to their grandfather’s estate. What had been done in converting the realty into money was a family transaction, and it was instigated and procured by the parents of some of the parties now complaining. They knew certainly of their grandfather’s will, and they doubtless knew that the “ dwelling place,” left to the family as a home, had been sold. They knew and recognized in Mr. Pennington the character of trustee, and that he held that character under the decree of Baltimore County Court. And with this knowledge, if they had not been disposed to acquiesce in the conversion of the property, they should have declined accepting the money from the trustee, and asserted their claim to the property without unreasonable delay. It would certainly be against equity and conscience to allow them to receive the money and also to recover the land for which the money was paid. That could not, upon any principle, be allowed. Having made their election to receive the money, they must be taken to have ratified the sale by which the money was, in part, produced. And that the sale was originally void, as to them, can make no difference ; for it is now perfectly well settled that sales either voidable or void may be ratified by the acts of the parties in interest. They may be ratified, either directly, or by a course of conduct which will estop the party from denying their «validity; and especially so in a Court of equity. And without citing all the cases upon the subject, we may refer to Hunter vs. Hatton, 4 Gill, 124; Stroble vs. Smith, 8 Watts, 280; Smith vs. Warden, 19 Penn. St., 429; Maple vs. Kussart, 53 Penn. St., 348; Duff vs. Wynkoop, 74 Penn. St., 300; Lee vs. Gardiner, 26 Miss., 548.

As to the claim of Mrs. Hageman, one of the children of Mrs. Knapp, while there is no formal release exhibited from her, it is admitted that she has received her proportion of the share of the proceeds of sale set apart to her mother for life ; and there is no reason why she should not be equally estopped as the other of her sisters. Even if she never did execute a formal release, she and her husband were competent to become parties to a proceeding for the sale and conversion of the property; and if they thought proper to adopt a previous sale and to take the proceeds in lieu of the property itself, they were at liberty to do so, and their election will bind them. Kempe vs. Pintard, 32 Miss., 324; Hunter vs. Hatton, 4 Gill, 124.

But with respect to Moses L. Knapp, the minor son of Mrs. Knapp, he having died in 1874, before he attained age, the case is different. He was not competent himself to do any act that would have the effect to ratify the sale; nor could any one else ratify it for him during his minority. No act done or sanctioned by his guardian, especially a foreign guardian, could have the effect to ratify the sale or conversion so as to bind him, except at his election after he became of age. And having died a minor, leaving his interest in the real estate unaffected by ratification of the sale made under the decree in 1833, that interest devolved upon his five sisters, and such devolution of interest was long after the receipts and releases by the sisters for their respective shares of the fund in the hands of the trustee. Such surviving sisters therefore of Moses L. Knapp are entitled as his heirs-at-law, to the one-sixth of one-sixth of the real estate sold under the decree of 1833; and this new right devolved upon the sisters is in no way affected hy the receipts and releases previously given hy them for their respective portions of the fund to which they were entitled as devisees under their grandfather's will. It has been suggested that the surviving children of Mrs. Knapp are not in a position in this case to take the benefit of this new inheritance from the deceased brother, by any decree that could be properly passed upon the present bill; but in this we cannot concur. The bill was filed against the children of Mrs. Knapp as tenants in common with the complainants, for partition or sale of the common property, and was therefore for the benefit of them all. The surviving children of Mrs. Knapp answered the bill, admitted the facts alleged, and consented to a decree as prayed. They ought not, therefore, to be prejudiced by the position they happen to occupy upon the record. The bill in the Court below was dismissed with costs; and being defendants, the Knapp children were in no position to appeal; and an appeal on their part, in such case as this, was not necessary to save their rights. Hanson vs. Worthington, 12 Md., 418, 443.

It has been suggested on the part of the complainants, that the payment by the trustee of the share or portion due to William St. Clair Long, one of the children of Andrew K. Long, deceased, and the release to the trustee by the curator of the estate of the devisee, could not have the effect of ratifying or confirming the sale of 1833, because William St. Clair Long was a minor, under twenty-one years of age, at the time of such payment by and release to the trustee; and this would be correct were it not for the lapse of time since the devisee, William St. Clair Long, attained the age of majority. The payment and release were both made in 1870, and William St. Clair Long attained the age of twenty-one years in 1871; and as it has not been pretended that he did not receive the money, the rational presumption is that he received it upon attaining the age of majority, with knowledge of the source whence it was derived. He is, therefore, with the rest of the children of Andrew K. Long, estopped to question the validity of the sale of 1833.

There being no question of estoppel or ratification aa to the children of Mrs. Worthington, they, or those representing them, are entitled to one-sixth part of the real estate sold under the decree. They have received no-part of the proceeds of sale, and have positively refused to recognize the validity of the proceedings under which the sale was made.

The bill prays for an account of rents and profits. The Statute of Limitations is relied on as a bar to that relief; and as to the one-sixth of one-sixth interest, to which alone the statute can have any application, the account will be confined to the period of three years prior to the filing the bill, and down to tbe time of accounting; and as to the one-sixth interest the account will be taken from the time of the death of Mrs. Worthington.

The defendants who claim and hold the property under the decree and sale of 1833, being innocent bona fide holders and possessors of the property in controversy, supposing that they held a good and sufficient title thereto by virtue of a judicial sale, will be entitled, upon well established principles, to a proportionate allowance for the value of all beneficial permanent improvements of the property, according to its present improved condition. They will also be entitled to a proportionate allowance for all such taxes and insurance as may have been paid by them, for the time during which they are required to account for rents and profits. This right to allowance we do not understand to be controverted. Indeed, it is conceded that such would be the consequence of a decree for the plaintiffs.

(Decided 27th March, 1884.)

It follows that we must reverse the decree appealed from, and remand the cause that a decree may he made in accordance with the foregoing opinion.

Decree reversed, and cause remanded.

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Dissenting Opinion

Bryant, J.,

delivered the following dissenting opinion: The solicitors of the respective parties, filed in the Court below an agreement, waiving all objections to its jurisdiction to grant the relief prayed in this cause. It is, therefore, our duty to decide the questions presented by the record, even if we should think that they are more properly of legal cognizance. I purpose to consider the effect of the decree of Baltimore County Court, passed at April Term, 1833. The petition, on which the decree was founded, is aptly drawn according to the provisions of the Act of 1182, ch. *12, sec. 12, and is also embraced within the general jurisdiction of equity. Two of the parties to the proceeding, James H. Long and Thomas J. Long, had fee simples in their shares of the real estate in question; the other children of Kennedy Long had 'equitable life estates in their portions; and the widow had a dower interest in all of the fee simple property; while the reversion in fee descended to all the children of Kennedy Long as his heirs-at-law, subject to be defeated (so far as the portions were concerned which belonged to the equitable life tenants,) by the birth of children to them. Henry Long was also a party to the proceeding, appearing as a defendant. How Henry Long was the only one of the devisees in trust who accepted the trust, and the only one of the executors who took upon himself the execution of the will. Eor the reasons stated in the opinion of the Court, it is clear that as devisee he took only an estate per autre vie; but as acting executor, he was invested with full power and authority to divide and make partition of the testator’s estate among the persons entitled to it under the will, and for that purpose to sell, dispose of, and convey the same to the purchaser or purchasers, if a division could not otherwise be made. The will also in terms gave him power as acting executor, to make, execute and deliver in due form of law, all deeds, conveyances and other instruments of writing, incident and necessary to the settlement of the estate ; and freely committed to him the “ management of the earthly concerns of the testator.” These different duties and powers having been conferred on Henry Long in different capacities, we must, according to the authorities, treat them as if they were to be executed by different individuals, although it is not easy to believe that it was actually the intention of the testator, that there should be such a division of responsibility. Now the distinct object of the petition was to procure the sale of this property, which Henry Long was authorized to make. It is settled in the case of Keplinger vs. Maccubbin, 58 Md., 203, that no one but Henry Long could make the sale, unless he should choose to waive his right. The petition prays for his removal, and the appointment of some person in his place as trustee, “to carry into effect and execution the trusts and appointments of Kennedy Long’s will,” and avers that the application was made at Henry Long’s suggestion and request. In his answer, Henry Long states that he had removed from the State of Maryland, and was consequently unable to give such attention to the property as he wished, and as it required. His answer then proceeds in these words: “ Having the interests of the petitioners at heart, he would not be willing to cause injury to their property by any act of his, and therefore joins them in their application to this honorable Court, for an order appointing some one whom they may nominate and choose in the place, and with all the power and authority of this respondent, and revoking and annulling all power and control of this respondent, in and over the trusts created by the will of said Kennedy Long.” How hearing in mind that the object of the petition was to procure a sale of the property, and that by the will of Kennedy Long, the respondent was the proper person to make the sale, we cannot fail to see that he intended hy his answer to relinquish this power, and to sever himself from all connexion with the property mentioned in the will. The Court evidently considered him as abnegating his duties and powers; for it states in the decree that his refusal and neglect to bestow proper attention on the estate of Kennedy Long was productive of loss and injury to the infant, and the other cestuis que trust; and it proceeds to decree that the property should be sold. In these proceedings, process is prayed against Henry- Long, without attaching to his name any designation either as trustee, or as executor, and he makes his answer without any such designation. But, surely, the absence of such an addition could be of no importance, where it clearly appeared that the object of the proceeding was to divest him of the power and authority which he had derived from the will in question, and to invest some other person with it.

The decree distinctly appoints Josias Pennington to “execute the trusts created by said will.” It cannot be questioned that the “power and authority to sell” was a trust in the strictest and most technical sense. It was so considered by this Court in Keplinger’s Case; and it was there decided that previously to the Act of 1865, chapter 162, where an executor declined to execute such a power as this, it was competent for a Court of equity to sell and convey the property, according to the provisions of the fourth section of the Act of 1785, chapter 72. 58 Md., 211. That section is in these words: “That if any person hath died, or shall die, leaving real or personal estate to be sold for the payment of debts or other purposes, and shall not, by will or other instrument in writing, appoint a person or persons to sell or convey the same property, or if the person or persons appointed for the purpose aforesaid shall neglect or refuse to execute such trusts, or if such person or persons, or any of them shall die before the execution of such trust, so that the sale cannot be made for the purposes intended; in every such case the Chancellor shall have full power and authority, upon application or petition from any person 'or persons interested in the sale of such property, to appoint such trustee or trustees for the purpose of selling and conveying such property and applying the money arising from the sale to the purposes intended, as the Chancellor shall in his discretion, think proper.” It will be seen that the Act does not require all persons interested in the sale to join in'the petition; but that the substitution of a new trustee may be made on the application of any one or more of them. The new trustee might have sold the property without obtaining any decree from a Court of equity; and in case the sale had afterwards been called in question, it would have been upheld by the Court, even if not made under the precise circumstances specified in the will, provided the sale was such as the Court would have decreed, upon a proper application, for the purpose. For it is a rule without exception that equity will ratify any act when done, if it would have previously ordered it. A sale by the new trustee, made when the proper-occasion arose, would have conveyed all interests in the property, present and future, vested and contingent. It was manifestly contemplated by the testator that the sale might be made before the birth of any grandchildren, because the only restriction made on the sale is, that it must not be made before one of two events ■should happen, to wit: the death of the testator’s wife, or the arrival at age of his youngest child; and both of these events, in the ordinary course of things, might occur he-fore any grandchildren were horn. The difference between a sale by the trustee in the exercise of his own judgment, and one made under a decree of the Court is this: if he made it without first obtaining a decree of the Court, he would he obliged to establish to the satisfaction of the Court that circumstances justified the exercise of his power; whereas, on application to the Court, the propriety of the sale would be determined before a decree was made. In this instance the Court was satisfied (to quote the language of the decree,) that it was “for the interest and •advantage of said infant, and all persons concerned, that the said country place should he sold.” And all the owners of the entire fee simple (in the then condition of things) were before the Court; and all those who were sui juris, were earnestly asking that the property should be converted into money. It is true that the interests of Andrew K. Long, and of the daughters of the testator were liable to he diminished if children should thereafter he born to them. Such children would take interests in the property in defeasance of the estates of their parents. The property was going to ruin, and its conversion into money was required for the benefit of those who might in •any future contingency become interested in it, as well as for the benefit of those who were then the sole owners. Is there any rule founded in reason, or in justice, or in the practice of equity, which required the Court to refuse its aid to these owners ? Was the Court obliged to stay its hand and let the property go to ruin, simply because in some future contingency, (which in point of fact might never occur) other persons, not then in existence, might have an interest in it? If this he so, the jurisdiction of ■equity is most abortive and impotent. A rule so unreasonable and so pernicious ought not to he tolerated, unless it he sustained by an irresistible weight of authority. How, I maintain that there is no such rule. I maintain that the sale in question carried every interest in the property; and that in its decree the Court was exercising a rightful and provident jurisdiction.

In this State the Court of Chancery has always had the power to convert the real estate of an infant into money, and it exercises this power for the infant’s benefit. The infant’s property is not taken from him; the change in the character of the property is made only when it will promote his benefit to make it. Dorsey vs. Gilbert, 11 Gill and Johnson, 87. The Act of 1785, chapter 72, section 12, provided for the exercise of this power, in cases where the infant had an interest in common with any other person ; and by that Act, whenever it was to the interest and advantage of the infant and the other owners of the property, the Court was required to order a sale. It will be seen that the right of the parties to have a sale, under the circumstances mentioned, was absolute and unqualified. Asale made with a reservation of a contingent interest would he effected under very disadvantageous circumstances; and in the present case would have operated with peculiar injustice against the widow, and the two children who had fee simples not subject to any future contingency. The shares of the property belonging to •these parties were not liable to be diminished by the birth of children; and justice required that they should have their due proportion of such sum as an unincumbered title would bring. It is a practical denial of justice to them, if the sale cannot be made, disincumbered of future contingent claims on the property. Nowit is argued that the interests of the contingent remaindermen could not be sold, because not being in esse they could not be made actual parties to the proceeding, and no one could represent them in the case. And in support of this position it is said that, no one is hound by a decree unless he is a party to the cause, either actual or by representation. The formal and technical terms in which a rule of law is enunciated, seldom give us much insight into its real meaning. We must see how it is applied in practice if we would understand its scope and effect. Lord Redesdale, in Giffard vs. Hort, 1 Schoale & Lefroy, 408, shows the application of the rule to a case involving contingent remainders to persons not in esse. “Courts of equity have determined, on grounds of high expediency, that it is sufficient to bring before the Court the first tenant in tail in being, •and if there be no tenant in tail in being, the first person •entitled to the inheritance, and if no such person, then the tenant for life, and as Courts of equity constantly act •on these parties being before the Court, in anything relating to the whole estate; ” * * * * * * “Where all the parties are brought before the Court that can be brought before it, and the Court acts on the property ac cording to the rights that appear, without fraud, its decisions must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the Court before he has issue, the contingent remaindermen are barred; this is now considered the settled rule of Courts of equity and of necessity.” And he is also cited in Calvert on Parties, page 31, as saying: 41 Contingent limitations, and executory devises to persons not in being, may in like manner be bound by a decree •against a person claiming a vested estate of inheritance; but a person in being claiming under a limitation, by way of executory devise, not subject to any preceding estate of inheritance by which it may be defeated, must be made a party to a bill affecting his rights.” In Lloyd vs. Johnes, 9 Vesey, 55, 56, Lord Eldon said: “A Court of equity in many cases considers the tenant in tail as having the whole ■estate vested in him, at least for the purposes of suit; and for those purposes does not look beyond the estate tail in a •suit aiming bj the decree to bind the right to the land. I distinguish between cases, where the suit is founded upon contract by the tenant in tail, and a suit to bind the land in respect of charges created by the author of the gift, and imposing them therefore upon all, who take per formam doni. In the latter the subsequent remainderman has a clear interest in the event of the suit of the prior tenant in tail. If the event is adverse, in many cases he may be bound; if prosperous, in many he may gain. If an estate is sold under- the judgment of the Court, for the very purpose of enabling this Court to carry on such suit, and the convenience of justice for the purposes of the suit, the remainderman would be bound, or have the advantage.” His Lordship is not by any means to be understood as meaning that the only case, in which a subsequent remainder-man is bound, is where a charge is imposed upon the estate by the author of the gift. This instance is put only as an example of the application of the rule, and in contradistinction to a contract made by the tenant in tail, which would not bind the remaindermen. The same learned Chancellor in Cockburn vs. Thompson, 16 Vesey, 325, said: “The strict rule is, that all persons, materially interested in the subject of the suit, however numerous, ought to be parties: that there may be a complete decree between all parties, having material interests; hut that, being a general rule, established for the convenient administration of justice, must not be adhered to, in cases, to which, consistently with practical convenience, it is incapable of application. Accordingly there are several well-known cases of exception; and, without going through them all, I will mention one instance of not applying it to persons, having valuable interests in real estate: viz., where it has been held sufficient to bring before the Court the first person, having an estate of inheritance, though it cannot he denied, that, persons, having present, immediate, valuable interests in the same real estate, may become most deeply affected by what is done here in their bsence.”

The result of Lord Redesdale’s decision, above quoted, was that the subsequent remainderman was entitled to appeal from a decree against the tenant in tail, because that decree barred him; and the House of Lords showed their approval of his decision, by passing an order allowing the appeal, in accordance with the report of a committee, of which the Lord Chancellor of England was chairman, and the Lord Chancellor of Ireland a member. 1 Schoale and Lefroy, 411. The opinion is regarded asan authoritative exposition of the practice in equity by Judge Story, in his work on Equity Pleading, sections 144 and 145; and by other learned text-writers, and has been quoted and adopted a great number of times by the Courts in England and this country. The rules of equity practice are not rigid procrustean formularies, which must be applied under all circumstances, without regard to the injustice and inconvenience which may he produced. The great Jurists, who established our equity system, founded it on the principles of enlightened justice as applied to the necessities of mankind. For the attainment of their beneficent purposes, they modified the results of the inexorable logic of the common law, and instituted salutary principles, which by their flexibility might be adapted to all the varying exigencies of social life. Their rules were framed with the special intent of attaining their great objects, and they did not commit the mistake of sacrificing the end to the means. One of the greatest authorities in equity has spoken with great clearness on this point. Speaking of another rule on the subject of the necessary parties to suits, he says: “ It has been well observed, that the general rule, being established for the convenient administration of justice, ought not to he adhered to in cases in which, consistently with practical convenience, it is incapable of application, for then it would destroy the very purpose for which it was established.” Story’s Equity Pleadings, section 96.

How when the petition for the sale of this property was filed in 1833, Baltimore County Court had the opportunity to choose between two courses of action. It could authorize a sale of every interest in the property, and preserve the portions of the purchase money, to which persons not then in existence might in future contingencies be entitled; or it might refuse altogether to act, and leave the property to go to destruction. It adopted the former alternative. The property was sold for its full value, and the contingent interests in the purchase money were carefully and faithfully preserved. It cannot be questioned that the action of the Court was the wisest which could have been taken for the benefit of all concerned. Every living person was before the Court who could possibly have the least interest in the property, and their interests were identical with those who were unborn. To have required more would have been to demand impossibilities. If a Court of equity cannot deal with property under such circumstances, and exercise its powers for its benefit, then such property is beyond the pale of the law. It is outlawed. I cannot bring my mind to such a conclusion. In the very able and well reasoned opinion delivered by the Chief Justice, reference is made to the case of Goodess vs. Williams, 2 Y. & Coll., N. R., 595, in which it is decided that “ Where a person is seised in fee of an estate, having that seisin liable to be defeated by a shifting use, conditional limitation, or executory devise, the inheritance is not represented in equity merely by the person who has the fee liable to be defeated.” But it must be considered that in the case cited the executory devisees whose estate might defeat the estate in fee, which was represented in Court were then living persons; and it was for this reason that they were required to be made parties. According to the opinion of Lord Redesdale, already quoted, if they had not been in being, their interests would have been bound by the decree against the persons holding the defeasible fee. And to the same effect is Judge Story’s opinion, Story’s Equity Pleadings, section 145, where he states the doctrine in almost the same words, referring to Mitford’s Equity Pleading, and Cooper’s Equity Pleading. But he takes particular pains to say in section 147, that if the persons are in esse, who are entitled to the executory devise which may defeat the precedent estate in fee, they must he made parties. If these authorities are correct, they are conclusive of this case. They describe with perfect accuracy the case now presented ; the contingent limitations to persons not in being, would, when they came into existence defeat the vested estate in fee, and the owners of this defeasible fee were in Court, when the decree of 1833 was passed. The very question in this case was decided by the Court of Appeals of Virginia in Faulkner vs. Davis, 18 Grattan, 651, in an opinion of very great ability and learning. It was held where property owned in part by infants had been sold under a decree where all living persons interested in the property were made parties, that the contingent interests of persons not in esse were hound by the decree. The Court distinctly decides that although unborn grandchildren were, of course, not personally parties to the suit, because it was impossible to make them such parties, yet they were parties to the suit by representation, and were as effectually hound by the decrees made therein, as if they had been in being and made personally parties to the suit. And the principle is recognized as the law of Virginia by the Supreme Court of the United States in Knotts, et al. vs. Stearns, et al., 91 U. S., 638.

But it has been argued that the Act of 1862, chapter 156, and the Act of 1868, chapter 273, show that in the opinion of the Legislature, previously to those Acts, a Court of equity had no power to hind by a decree of sale the contingent rights of persons not in esse. Let us examine these Acts. Previously to the Act of 1862, a Court of equity had no power, except in cases where it was necessary for the purpose of partition, to sell legal estates, on the ground that it was advantageous to the owners to have a sale, in any case where an infant was not interested. The power of sale for this purpose was limited by the ninety-ninth section of the sixteenth Article of the Code to cases of joint tenancy, tenancy in common, coparcenary or other concurrent ownership. And notwithstanding the fifth section of the Act of 1831, chapter 311, (codified as Article 16, section 42, of the Code) it is more than doubtful whether there was any power to decree a lease of the property, unless an infant was interested in it. The Act of 1868 is merely a re-enactment of the Act of 1862 with some few additions. It provides : “In all cases when one or more persons is or are entitled to an estate for life, or years, or to an estate tail, fee simple, conditional, base or qualified fee, or any other particular, limited, or conditional estate in lands, and any person or persons is or are entitled to a remainder or remainders, vested, or contingent, or an executory devise or devises, or any other interest, vested or contingent in the same land ; on application of any of the parties in interest, a Court of equity may, if all the parties in being are parties to the proceeding, decree a sale or lease thereof, if it shall appear to he advantageous to the parties concerned,” and also, that the decree shall hind all persons whether in being or not. It will he seen that it authorizes either a lease, or sale of land, in a number of cases where the parties are neither joint tenants, tenants in common, parceners, or concurrent owners of any kind. Yery important additions are made to the powers previously vested in Courts of equity, and these sufficiently account for the passage of the Act. No special reference, however, is made to the property of infants. The requirement that all parties in being should he brought before the Court, and the provision that the fights of persons not in esse, should be hound were most probably suggested by the familiar equity practice in similar cases. We need not he-surprised that no cases of "this kind can be found in England ; because there chancery has no power to convert an infant’s land into money for his benefit. But surely where this jurisdiction exists, as it does in Maryland, it ought to be exercised according to the same rules of practice which are applied to other suits in chancery. On this point we may profitably take heed to •an admonition given by Lord Chancellor Nottingham: “It is the duty of every Court of equity to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all new cases, which, from the progress daily making in the •affairs of men, must continually arise ; and not, from too strict an adherence to forms and rules, established under very different circumstances, to decline to administer .justice, and to enforce rights, for which there is no other remedy.” It will be seen from what has been said, that I am unable to agree with the conclusions reached in Downin vs. Sprecher. But if this case is to be regarded as the •settled doctrine of the Court, the decree of Baltimore County Court ought nevertheless to be sustained. The power of sale given to Henry Long as executor was certainly a trust, and he had deliberately renounced it. It is a rule without exception that equity will not allow a trust to fail for want of a trustee. Story’s Equity Jurisprudence, sections 976 and 1059. It has not been doubted since the decision of Lord Northington in Hewett vs. Hewett, 2 Eden’s Reports, 332, that the Court will carry into •effect a power of this kind for the benefit of those interested in it, when the person on whom it is conferred refuses to do so. Faulkner vs. Davis, 18 Grattan, 681. On this point we may also refer to Story’s Equity Jurisprudence, section 1060.

The decision of the Court in this case will disturb a decree which has been regarded as a final adjudication for more than half a century. It will take from the appellees a large amount of property, which they have honestly purchased and paid for, and will reverse a practice which has existed in the City of Baltimore heyond the time of' living memory, and which in my opinion is founded on established precedent, and the true theory of chancery. It will introduce uncertainties and embarrassments in titles to real estate, which no man can measure. With unfeigned diffidence, I dissent from the very able and learned opinion of the Court; but a sense of duty compela me to say that, according to my deliberate conviction, the decree of the Circuit Court ought to he affirmed.