Mayer v. American Security & Trust Co., 33 App. D.C. 391

Mayer v. American Security & Trust Co.

33 App. D.C. 391 | D.C. Cir. | 1909

Mr. Justice Robb

delivered the opinion of the court:

Considering the deed and declaration of trust together, as we are bound to do, it is very apparent that an estate upon condition was thereby created. Was this a condition precedent or a condition subsequent? If a condition precedent, the vesting of the estate was dependent upon the performance of the condition. If a condition subsequent, the estate vested immediately, and the nonperformance of the condition rendered it liable to be defeated. There are no technical words to distinguish these conditions, and whether they be the one or the other is a matter of construction, and depends upon the intention of the party creating the estate. 4 Kent, Com. par. 124. It is first provided in the declaration of trust that “although the said deed purports to convey to said grantee an absolute title to the said property, the same is held by the Washington Loan & Trust Company for the Tise ■and benefit of the George Washington University of Washington, D. 0.,” upon certain declared conditions; that is go say, to ■convey said property in fee simple to said university “when and at such time as said University” shall perform the conditions *396enumerated. After the enumeration of those conditions, the declaration of trust states that “the intent and purpose of the said Theodore J. Mayer, by his conveyance to the Washington Loan & Trust Company, is to donate to the George Washington University the land knovm as the Chevy Chase property, hereinbefore more particularly described, for the uses and purposes of said university, only upon condition, however, that the said university shall” perform each of the conditions hereinbefore enumerated. The declaration of trust further provides that, “in the event of the failure of said university to comply with the terms and conditions of this trust within a reasonable time,” said property “is to be reconveyed to the said Theodore J. Mayer, his heirs or assigns.” We think it quite apparent'from reading this declaration of trust that the trustee acquired nothing more than a mere naked trust or power to dispose of said property in the manner specified, and that no estate was to vest in the university until the performance of the conditions named. Any other construction does violence to the language of the trust instrument, for it is expressly provided therein that it is the intent and purpose of Mayer to donate said property to the university "only upon condition” that said university shall perform the conditions. specified. Those conditions were never performed; hence, no estate ever vested in the university. It will be noticed that the donor, instead of providing that, in such event, the property should revert (a term which he might have employed had he been dealing with a condition subsequent), provided that the property should be reconveyed to him, his heirs or assigns. We t.bink the effect of this declaration of trust was to vest in the trustee, as before stated, the bare legal title of the trust estate, and that the equitable ownership remained in the donor. Had the university performed the conditions precedent, the equitable title thereupon would have vested in it, and it would have had a right to demand and receive a conveyance in fee simple from the trustee. Rice v. Minnesota & N. W. R. Co. 1 Black, 358, 17 L. ed. 147.

Counsel for appellant, in their exhaustive and interesting brief, rely upon Wilson v. Galt, 18 Ill. 431, and Schulenberg v. *397Harriman, 21 Wall. 44, 22 L. ed. 551, to support their contention that the condition annexed to this conveyance was a condition subsequent. In the former case this question was not involved, for the reason that the court found the condition to have been performed. Neither was it attempted, in that case, to point out the distinction between conditions subsequent and conditions precedent. In the latter case, certain public lands had been granted to the State of Wisconsin, to aid in the construction of railroads in that State. Under the act the State possessed power to dispose of not exceeding 120 sections of land in advance of the construction of the road. As to the remainder of the land, the State had authority to sell as the building of the road progressed, and it was provided that, if the road was not constructed within ten years, no further sale should be made, and the lands unsold should revert to the United States. No part of the road was ever constructed, and no proceedings were taken to establish a forfeiture of the grant. The court held that the language used by Congress imported a present grant to the State, and that the provision for reverter was no more than a provision that the grant should be void if a condition subsequent be not performed. In that case, as is quite apparent, a present interest passed to the State. While the object of the grant was to aid in a public improvement, the State was nevertheless empowered immediately to dispose of 120 sections of the land granted. If, at the end of ten years, the road was not completed, it was within the power of the United States to repossess itself of the lands unsold. This was a condition subsequent. The facts in that case are quite different from the facts in the present case. Here, as previously stated, no beneficial interest passed to the Trust Company. It was vested with the legal title, but that title was so limited and restricted that it amounted to nothing more than a power to convey upon the happening of certain definite specified conditions. If the distinction between precedent and subsequent conditions is to be maintained, and if intent is to govern, we must hold that this was an estate upon condition precedent.

The equitable ownership retained by Mayer was clearly devisable. Md. Code 1901, sec. 311; 1 Kent, Com. 510; Sehouler, *398Wills, 3d ed. par. 28; 1 Jarman, Wills, par. 48. The cases cited by appellant, to the effect that a mere possibility of reverter, or a right to enter for a condition broken, was not devisable under the Maryland Code as it then read, have no application to the facts of this ease, for the reasons given. Even such interest may now be devised under said sec. 314, as amended by the act of March 18, 1908, Laws of Maryland 1908, p. 264. Even though it should be held that only a contingency or possibility coupled with an interest remained in Mayer, such an estate was devisable. Hamilton v. Harrington, 36 Md. 434; 4 Kent, Com. par. 261.

We see no merit in the contention that the intent of the testator to-devise this property is not manifest from his will. After making certain specific bequests, the testator, in a comprehensive residuary clause, disposed of the bulk of his estate. We have found that he retained the equitable ownership' of that property. He was, therefore, possessed of a present- interest, and the residuary clause was sufficient to pass that interest.

The decree is affirmed, with costs. Affirmed.