83 Md. 409 | Md. | 1896
delivered the opinion of the Court.
James M. Seth, of Talbot County, departed this life leaving a last will and testament by which he bequeathed a large personal estate to his wife and his son-in-law in trust for his' two daughters, Mary Lowe and Sallie Covey, with remainder to their children. He directed that no part of the principal should be paid to his daughters during their lives, “ but shall remain in the hands of my said executors, who are also hereby specially constituted trustees for such uses, purposes and trusts, or in the hands of the survivor of them, and in the event of the death of both in the lifetime of my said daughters, in the hands of such person or persons as they, or the survivor of them, may by last will and testament nominate and appoint to be my said executors and trustees, or the survivor of them, or by such person or persons named by them as aforesaid, invested in their discretion in some safe and profitable manner during the natural life of my said two daughters,” etc. He then directed that the income, interest and profits should be paid to his daughters during their natural lives, and at their death to the children of his daughters, and provided for the child of any deceased child of either of his daughters taking his parent’s share. The trustees named in the will died without naming their successors, so far as disclosed by the record, and J. Frank Turner was appointed trustee by the Circuit Court for Talbot County, “ to execute the trusts created by the last will and testament of James M. Seth, deceased, in favor of Mary F. Lowe and her children.”
A number of questions were argued, some of which are not very material under our view of the case. The one that the above statement of facts would first suggest is, whether the discretion reposed in the trustees named in the will was vested in Mr. Turner by his appointment under the decree of the Court. We have no hesitancy in answering that in the negative. The trustees appointed by the testator were his wife and son-in-law, the survivor of them or “ such person or person? as they or the survivor of them may by last will and testament nominate and appoint to be my said executors and trustees, or the survivor of them, or by such person or persons named by them as aforesaid.” To such
Nor do we think that the form adopted by him to release the Talbot County property was sufficient to pass the legal title to it. 'Fhe mortgage was overdue, and hence there had been a default. The legal title was therefore vested in the mortgagee, and such being the case, the attempted release made by him was not sufficient to reconvey it to the mortgagor. 'Fhe statute has adopted a short form for the release of a mortgage which can be executed either by writing it on the record in the office where the mortgage is
The appellant subsequently executed a release of this mortgage and filed it with the clerk of Kent County, as above stated. He contends that he purposely withheld the release from the Talbot County records, and that it was not intended to discharge the property in that county. It was certainly a novel way to keep the mortgage operative on the Talbot County property—to endorse a release on the original mortgage and file it with the clerk of Kent County. But he surrendered the evidence of his debt with the mortgage—that is to say, he sent it attached to the mortgage to the clerk, and the law requires the clerk to “ retain such mortgage in his office and not permit the same to be again withdrawn.” In order to release the Kent County property from the effect of the mortgage it was not necessary to send the note or to release the whole mortgage, that could
We cannot hesitate to find under the evidence that the appellant did know that Turner had released, or at least had attempted to release, the Easton property, and that he accepted the securities with that understanding, and he and the other cestuis que trust, whose attorney and agent he was in this transaction, are bound by his act. It could not be pretended that under such circumstances they could hold Turner responsible, for they expressly agreed to release him, and that too with full knowledge, as shown by the testimony, of all the facts necessary to inform them of the true condition of the securities, for the knowledge of John H.
It is clear, then, that although Turner did not make the investment or release the Easton property under authority of the Court, yet the cestuis que trust ratified and sanctioned his act, and thereby induced him to í-elinquish a valuable trust. .It is possible that if Turner had not resigned he might have collected all the money from Minnick, as he might not have extended the time of payment and his resignation was nearly two years before Minnick made an assignment. In 1892 the Kent County property might have been worth the amount of the mortgage. But if he had been unable to collect the money from it, he was personally responsible for the same to the cestuis que trust before they executed the agreement, and would have been under moral obligation, if not legal, to protect the appellee from any loss occasioned by his act in thus attempting to release the Easton property.
The appellant states in his petition that he, too, acted without authority of the Court in executing the release. But is a trustee to have the aid of a Court of Equity to relieve him from possible personal liability, especially when he is one of the cestuis que trust and attorney and agent of the others, because he acted without its authority ? Courts of Equity will unhesitatingly use its powers to preserve and protect trust property at the instance of cestuis qne trust, who are not themselves estopped or precluded on some equitable grounds, but it would be an unwarranted stretch of that power to apply it in favor of a trustee confessedly acting without authority under ordinary circumstances, and' without any precedent to do so when all the cestuis que trust were parties to the arrangement which resulted in his act. In point of fact, his taking a new mortgage probably did not place the cestiás que trust in any worse condition as to the Easton property than they were before by their own sanction and ratification, but if it did, it would not entitle the trustee to relief against the appellee.
Being of the opinion that the writing of Turner, although-not a valid release in a Court of Law, is in a Court of Equity-binding on him, and as his act was fully ratified and sanctioned by the appellant and the other cestuis que trust, is. binding on them, and the mortgage of the appellee must be-given priority over the claim of the appellant. The decree therefore must be affirmed.
Decree affirmed, with costs to the appellees.