33 Md. 609 | Md. | 1871
delivered the opinion of the Court.
This record contains cross appeals from a decree of the Circuit Court of Baltimore City, and discloses the following •facts: Nelson Wells executed his last will, in due form of law, on the fifth day of February, in the year 1843, by which he bequeathed to his wife absolutely all his household furniture, and certain leasehold property, and a sub-ground rent of thirty-five dollars for her life, and after her death to John Needles, Isaac Tyson, Jr., and Edward Jessop, or to the survivors of them at the time of the death of his wife, and to their heirs and assigns. Pie also bequeathed to them his Baltimore City' stock, amounting to thirty-five hundred dollars, together with all the rest and residue of his property. Simultaneously with the execution of his will he executed another paper, in the form oí a letter of instructions to Needles, Tyson and Jessop, which was attested by the same persons who were witnesses to his will. By this paper the testator declared his intentions and wishes, with reference to the property bequeathed to them by his will, in the following language: “Being in my last moments desirous to make some provisions for the school education of free colored ehil
The proof in the cause shows that the testator, several days before his death, sent for Needles and Tyson, informed them of his intention to make a will providing for the education of free colored persons in Baltimore, and requested them and Dr. Handy to have a suitable will prepared in accordance with his views, which were that all his property should be appropriated to that purpose, the one-half at once, and the other after the death of his wife. It is also proved that, having been advised that there would be some difficulty in carrying into effect such a trust, they had the will and paper in question prepared and read them to him, and that, although the testator did not at first approve of this mode of effecting his object, he eventually, after considering upon it, agreed to execute the papers and did execute them in the presence of three witnesses, who attested both papers. They were then put into one envelope, upon which was indorsed the fact that it was Nelson Wells’ will, and were deposited with the Regis
The appellants filed their answers, claiming the property as their own, though admitting that they consider themselves as morally trustees, and relying upon the Statute of Limitations, and the negligence and laches of the appellee as a bar to his claim to relief in the premises.
Proof was taken, and, upon final hearing, the Court below passed a decree in favor of the appellee for the whole property, with interest from the time of the filing of the bill. From this decree, both parties appealed.
In the argument of the cause in this Court, it was claimed by the appellants that the decree ought to be reversed upon four grounds — first, because the paper, executed at the same time the will was, formed no part of the will itself, and was not a codicil to it, and that they were, therefore, entitled to
1st. It is clear, beyond all question, that the testator never intended to give his property to the appellants for their own use and benefit, but that it was his well settled purpose and intention to give it to them as trustees only, to hold, invest and manage the same, and to apply its proceeds to the education of free colored persons in Baltimore city, and it is proved that he stated that, if there was a corporation of such persons, he would leave it directly to such corporation. In order to carry into effect his intention, after taking advice, two of the appellants had prepared the will and accompanying paper, both of which were executed at the same time and with all the formalities which the law requires to give validity to wills. They were intended to be taken and to operate togetlier'as one complete and entire disposition of his property, and, from the proof in the cause, we think it very evident that he never would have executed the one without the other. In this instrument is declared the trust upon which the legatees are to hold the property bequeathed by the will, and in it is employed the same formal language that is used in the will itself; such as, “it is my desire and will;” and we think there can be no doubt that the testator considered it a most essential and important part of his will, and executed it as such. The Orphans’ Court did right in admitting it to probate and having, it recorded with the will. It is executed with all the formality requisite to make it a valid declaration of the trust upon which the legatees were to take and hold the property bequeathed to them by the will. Earl of Inchiquin vs. French, 1 Cox’s Chan. Ca., 41, 42; Metham vs. Duke of Devonshire, 1 Peere Williams, 529, note 1. In
2d. Is the trust in this case void for uncertainty or as a perpetuity ? It has been decided by this Court that a devise to the “trustees of Hillsborough school to be by them applied towards feeding, clothing and educating the poor children of Caroline county, which attend the poor or charity school established at Hillsborough, in said county,” was void as well on account of the uncertainty of persons, who were the objects of the testator’s bounty, as because a perpetuity was created, “ the poor children,” &c., not being á body corporate and not able to take in succession. Dashiell, et al. vs. Attorney General, 5 H. & J., 392; Same vs. Same, 6 H. & J., 1. In the case of Wildeman vs. The Mayor and City Council of Baltimore, 8 Md., 551, it was again decided that a devise to the city of Baltimore, in trust, “ for the relief and suppoi’t of indigent and necessitous poor persons, who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city,” was void as being too vague and indefinite. See also Trippe vs. Frazier, et al., 4 H. & J., 446. The trust in favor of “free colored persons in Baltimore city” is too vague and indefinite to be enforced, and is void for that reason as well as because it is a perpetuity, and, by operation of law, a trust results in favor of the next of kin of the testator, unless his claim thereto is barred by the
3d and 4th. As a general rule, the Statute of Limitations will not apply to cases of express and continuing trusts, for the very obvious reason that, as the title of the trustee is the title of the cestui que trust, his holding and possession will not be presumed to be hostile and adverse, and the trust being a subsisting, continuing one, no lapse of time will bar. But this rule is subject to limitations and restrictions, and whenever a trustee sets up an open, public, adverse claim against his cestui que trust, and denies that the trust any longer subsists, or where a trustee recognizes another person as cestui que trust, long possession and continued enjoyment of the property under such recognition will be a bar in equity. Angell on Limitations, 171, 172; Robinson vs. Hook, 4 Mason’s Cir. Co. Reps., 152; Farnum vs. Brooks, 9 Pick., 212; Kane vs. Bloodgood, 7 Johns. Chan. Rep., 123, 124. In the case now before us, the appellants never did recognize the appellee as their cestui que trust, but took possession of part of the property about twenty-four years before the filing of the bill, and have held that portion of it ever since, and applied the income thereof for the benefit of other parties. So far from having recognized him as their eestui que trust, or admitted that he had any interest in the property they held under the will, one of them informed him, shortly after the testator’s death, that he was entitled to nothing under the will. During all this time, he has lived in Baltimore where the appellants resided and held the property, and in the Orphans’ Court of which city the will and declaration of trust were recorded and open to his inspection. After such a lapse of time, during which it is not even alleged that he was under any disability, his right to relief, so far as the city stock taken into possession by the appellants is concerned, is clearly barred by the Statute of Limitations.
The statute did not begin to run against the appellee’s claim to that part of the property in which the widow took
Although Courts of Equity will sometimes refuse to grant relief, where a party has been guilty of gross negligence and laches for even less than twenty years, yet we'can see nothing in the circumstances of this cáse to justify the application of so rigid a rule to the appellee. The decree of the Court below will be affirmed in part and reversed in part, and the cause remanded in order that a decree may be passed in conformity with this opinion.
The only question presented upon the appeal of George Martin is, whether the Court below erred in allowing him interest from the time his bill was filed, instead of from the date of the settlement of the testator’s estate by the executor. It appears that the trustees have managed the estate without any view to benefit themselves, and without charging or receiving any commissions or remuneration for their services; and as the appellant has slept upon his rights for morethan eighteen years, and during all that time, suffered the appellees to go on expending the income and profits from the property without claim or protest made by him, it would be neither equitable nor just .to compel them to pay interest beyond the period at which they had notice of his claim, to wit, the date of the filing of the bill of complaint.
The decree of the Court below, upon this appeal, must be affirmed.
Decree affirmed in part and reversed in part, and cause remanded.