46 A. 320 | Md. | 1900
The question presented by these appeals arises on the construction of the will of the late Willie F. Hooper, of Wicomico County. Mrs. Margaret A. Humphreys, by her husband, filed a bill in the Circuit Court for that county in which she alleged that the third, fourth and fifth clauses of her sister's will are void. The defendants were duly summoned and answered. The case was heard by the Court below on the bill, answers and testimony, and after argument a decree was passed declaring that the third and fourth clauses are valid, so far as they relate to the provision therein respectively in favor of the preacher who may be from time to time in charge of said churches respectively; but void so far as the same made provisions for the benevolent boards and the keeping in good condition of the "Hooper Burial Lot." The decree further declared that the fifth paragraph of the will is void, and that title to the house and lot therein devised to trustees in trust, to rent the same and pay the net rent as therein directed, vested in the plaintiff as sole heir and residuary devisee upon the death of the testatrix. From this decree the trustees named by the testatrix in the fifth item of her will have appealed; and several of the beneficiaries of the trust have also appealed; but both appeals present the same questions. The appellants made no objection in this Court to that portion of the decree which relates to the third and fourth paragraphs; hence the sole question left for our consideration relates to the validity of the devise contained in the fifth paragraph of the will. It is as follows: "I give, devise and bequeath my house and lot * * * to F. Marion Slemons, Thomas H. Williams and E. Stanley Toadvin in trust, to *140 hold the said property, and to rent out the same, and collect the incomes and rents therefrom." The testatrix directs her trustees, after the payment of her debts and funeral expenses, to pay the net rent from year to year to a number of incorporated bodies and boards for charitable purposes in certain proportions designated by her.
The contention of the appellee, and this contention was sustained by the Court below, is that the devise in the fifth paragraph is void because it creates a trust to which there is no limit of time. Upon an examination of the will itself we not only fail to find an express limitation to the duration of the trust, but the testatrix makes express provision for its indefinite continuance in the seventh paragraph of her will by providing for the appointment of trustees to succeed those she had named in case of the death, resignation or refusal of the latter to serve. We think there can be no doubt as to the intention of the testatrix. She intended by the creation of this trust to make a perpetual provision for the objects of her bounty. Can we, under the well and long-established law of this State, effectuate that intention? We certainly cannot if we adhere to the well-considered decisions of this Court from the case of Barnum
v. Barnum,
"In the case now under consideration no question is presented as to the future vesting of an executory estate in order to determine the validity of the preceding one, but simply whetherthe trusts of the will require in their execution a longer period than that prescribed by the rule against perpetuities, and therefore render the property devised to the trusteesinalienable during that time. If so, the law denounces the devisein trust as a perpetuity and declares it void."
In Deford v. Deford,
It was suggested that a power to raise money out of rents and profits includes a power to sell and mortgage for the purposes of the trust, and that the trustees under Miss Hooper's will being required to pay taxes and debts, they may be required to sell the trust property — but, whether this be so or not, we will not stop to enquire, for even if the testatrix had given power to her trustees to sell the trust property the difficulty would not have been removed. In Deford's case, it is said: "The fact that the testator, in another clause of his will, empowers his trustees to change the investments and reinvest as often as may be deemed proper, by making sales or otherwise, does not change the nature of the trust, which may extend beyond the time limited, and does not therefore extricate the case from the operation of the rule; the possibility of such continuance the law regards as decisive in determining the question of perpetuity or not." The rule of perpetuities as applied to trusts in Barnum v.Barnum has been approved also in Stannard v. Barnum,
But the contention, on the part of the appellants, is that this settled rule, this "landmark of the law," has no application to charitable trusts, and counsel ventured to assert that there is no case in Maryland in which it has been so applied. There are, however, at least two cases where the rule has been directly applied to such trusts. In the old and leading and very familiar case of Dashiell v. The Attorney-General, 5 H. J. 392, the devise was for "poor children belonging to the congregation of St. Peter's Church, c." The devise was held void because the trust was indefinite and because it created a perpetuity. The decision just cited was so construed in the case of Needles v.Martin,
Hence it will be seen that in spite of the criticism of "the learned annotator" whose notes to Barnum v. Barnum are published in Perkins' Edition,
But if the contention of the appellant be correct, such a course was altogether unnecessary, for, as suggested by counsel for appellee, if the perpetuity rule does not apply to devises and bequests to religious and charitable uses, this Court, in the case of Mr. Pratt's will, could have decided the question very easily by holding that whether there was a trust or not was immaterial, because if there was no trust the rule confessedly did not apply, and if there was a trust it did not apply because the devise was in favor of a charitable institution.
It follows from what we have said that we entirely agree with the view taken of this case by the learned Court below.
Decree affirmed with costs.
(Decided April 6th, 1900.)