Numsen v. Lyon

87 Md. 31 | Md. | 1898

Bryan, J.,

delivered the opinion of the Court.

Nathaniel and William Numsen, trustees under a will, sold to Samuel H. Lyon a tract of land in the city of Baltimore. It was agreed as a condition of the sale that the title to the property should be in fee-simple and clear of all incumbrances. The purchaser by appropriate proceedings excepted in a Court of Equity to the ratification of the sale. His exceptions were sustained and the sale set aside and annulled. The trustees appealed.

The title to a portion of the land was derived from a sale under the decree of a Court of Equity in the case of Busk and others v. King, passed in April, eighteen hundred and sixty-five. The exceptions to the ratification of the sale allege that this title is defective. John King died seized in fee of this portion of the land, and it descended to his heirs subject to the dower of his widow. His children were four in number. After his death the widow intermarried with Thomas M. Busk ; and in eighteen hundred and fifty-four they conveyed all of her property of every kind to John W. Randolph upon certain trusts, which are not involved in any question in this case. In eighteen hundred and fifty-nine Caroline, one of his daughters, in contemplation of marriage with Edgar G. Taylor, conveyed in conjunction with him to the said John W. Randolph all of her property of every kind upon the following trust, that is to say : “ To permit and suffer the said Caroline King during the term of her natural life, to take, hold, use and enjoy the said property, estate and effects, and the rents, issues and profits thereof, for her sole and separate use as a feme sole, and at her death for the use of any descendants she may have living at the time of her death, and in default of such for the use of her right heirs, with power, however, to the said Caroline King during her life to devise or bequeath the same or convey the same by deed with- the assent of the said trustee testified by his uniting in the same deed.” Years after the execution of these deeds a bill in equity was filed, which prayed a decree that the land should be sold for the purpose of partition. The parties to the suit were Caroline Busk, who had a second time become a widow; John W. Randolph, who is called in the bill “ trustee as hereinafter mentioned Taylor and Caroline, his wife; the three remaining children of John King, deceased, and the husband of. a married daughter. It was alleged in the bill of complaint that Mrs. Busk and her husband had executed the deed of trust already mentioned to John W. Randolph ; but no allusion was made to the deed of trust executed by Taylor and his wife. A sale was decreed and made, and Mrs. Taylor received one-fourth of the proceeds of sale, after the deduction of the amount allotted to the widow in lieu of dower.

By the terms of the deed to Randolph, Caroline^ Taylor had an equitable life-estate, with a contingent remainder to such descendants as might be living at the time of her death, and if none snch should then be living a remainder was given to her right heirs. These remainders were legal and not equitable. They depended on a contingency with a double aspect; that is, in the event of her leaving descendants living at the time of her death, their title then vested; but in the other event of her leaving no living descendants at the time of her death, the title of her right heirs then vested. One of these contingencies would be sure to occur at the time prescribed; and only one of them could occur. Caroline had a power to devise this property, or to convey it by deed with the assent of the trustee, which consent was to be testified by his uniting in the deed. The nature of the estate belonging to Caroline as affected by the power to dispose of it is clearly shown in Benesch v. Clark, 49 Md. 504. The Court there says : “ Now, it is quite clear, upon all the authorities, that where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate ; and the devisee or legatee takes, not a simple power, but the property absolutely. But where the property is given, as in this case, to a person expressly for life, and there be annexed to such a gift a power of disposition of the reversion, there the rule is different, and the first taker, in such case, takes but an estate for life, with the power annexed * * * * This distinction, while it has been said to be a refined one, is, nevertheless, as well established as any in the law; and Judges and text-writers alike recognize and adopt it as a principle too firmly settled to be questioned.” By the terms of this deed the legal title in fee-simple was granted to Randolph, the trustee. It was necessary that he should hold it to protect the equitable estate for the sole and separate use of the married woman ; but he had no powers or duties to perform after the vesting of the remainders which were expectant on her death. Upon the vesting of these estates therefore the legal estate would be executed in the remaindermen. There is no rule in relation to trusts more fully settled than this. It is said in Perry on Trusts, section 312, that “the intent of the parties is determined by the scope and extent of the trust. Therefore, the extent of the legal interest of a trustee in an estate given to him in trust is measured, not by the words of inheritance or otherwise, but by the object and extent of the trust upon which the estate is given ****** 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.” This deed is strikingly like the one in Ware v. Richardson, 3 Md. 505, where the same construction was made as to the execution of the legal estates as that which we have stated in this case.

It is admitted in the case that at the time of the institution of the equity suit Caroline had two children living and that she has several children living at the present time. Randolph was not made a party to the suit in his capacity as trustee under the deed by Caroline Taylor and her husband. It was not alleged or intimated in any way in the bill of complaint that he held any title for her benefit. The only trust alleged in the bill was distinctly stated to be for the benefit of Caroline Busk under the deed executed by her and her husband. This trust had no connection whatever with the Taylor trust; no more than if a different person had been trustee. There could be no possibility of affecting the Taylor trust by proceedings against the trustee for anything done or intended to be done under the Busk trust. What Randolph might do by virtue of one of these deeds could have no effect on any rights existing under the other deed. But even if Randolph had been made a party as trustee under the Taylor deed, the interests of the remaindermen would not have been bound by the decree. There w’ere two living children of Caroline Taylor who ought to have been made parties. The decree cannot bind persons who were not made parties either personally or by representation. If all the interests in remainder had been represented the decree would have bound them, and it would have been the duty of the Court to order the portion of the fund distributable to the parties entitled under the Taylor deed to be invested for their benefit. The receipt by Mrs. Taylor of the one-fourth part of the proceeds of sale cannot bind the estate in remainder after her death. The record informs us that she is still living; so no question can arise in regard to the application of the Statute of Limitations. The estate subsequent to hers has not yet vested.

(Decided January 4th, 1898).

It will be seen that the sale under the decree did not pass a complete title to the land sold under it. We must affirm the order setting aside the sale by the Numsen trustees to Lyon.

Order affirmed with costs.