88 Md. 610 | Md. | 1898
delivered the opinion of the Court.
In these proceedings the validity of the twelfth, or the residuary, clause of the will of the late Enoch Pratt is assailed by his heirs at law and next of kin and by his alternative residuary legatees and devisees. There are four cases which have been consolidated, but it is not necessary to set forth the pleadings, or any part of the pleadings therein, as the disposition of the questions presented for decision depends largely on the terms of the will. The cases have been argued with marked zeal and ability on both sides, and we have been greatly aided by the discussion at the bar in our examination of the matters in controversy.
The clause in dispute is in these words: “ Having in my lifetime liberally provided for my niece and nephews hereunder named, I do now hereby give, devise and bequeath all the rest and residue and remainder of my estate of every kind and description, whether real, personal or mixed, and wherever the same may be situate of which I may die possessed or be in any way entitled to at the time of my death, after the payment of all debts justly due by me, and after satisfying all the devises and bequests hereinbefore set forth, to The Trustees of the Sheppard Asylum, a corporation duly incorporated by the General Assembly of the State of Maryland by said name, style and title, and its successors forever, it being my intention and meaning to make said corporation, The Trustees of the Sheppard Asylum, the residuary legatee and devisee under this my last will and testament.
“ And I direct my executors to set over, transfer and convey by proper deeds, assignments and transfers the said residue of my estate to the said corporation, upon and subject, however, to the following condition and bargain, namely: That the said Trustees shall adopt as the name and style of said corporation the title of ‘ The Trustees of the Sheppard and Enoch Pratt Hos
“ While I do riot wish to alter the operations and management in the working of the said asylum as now existing and being carried on, it is my wish and will that the income from my said residuary estate shall be used to complete the present buildings and grounds and for the erection of such other buildings or building as will accommodate not less than two hundred additional inmates, and after that the income from my aforegoing donation shall be devoted mainly to the care of the indigent insane in the most advisable manner at very low charges or absolutely free, as the trustees of said corporation in the exercise of their best judgment as to the rate to be charged may deem best and wisest to promote the object of this donation.
“ Provided, however, and it is expressly my will, that in case the said Trustees' of the Sheppard Asylum fail to obtain from the General Assembly of Maryland at its first session after my death the amendment to the charter of said institution .hereinbefore stipulated and provided for, and fail to adopt the name for said corporation of the ‘ Trustees of the Sheppard and Enoch Pratt Hospital,’ then and in that case it is my will and I then give, devise and bequeath, in lieu of the aforegoing provision, the said residue of my estate to my niece, Ellen J. O. Phinney, and to my nephews, Gerard C. Tobey, Horace P. Tobey, J. Lowell Pratt, David G. Pratt, Edmund T. Pratt and Moreland L. Pratt, to be in that case set apart for and equally divided among them and the issue per stirpes of any of them who may be dead at the time of my decease, such issue to take the share to which its or their parent would, if living, have been entitled.
“ I direct my executors, until it shall have been decided, as above provided, whether the said condition of
Mr. Pratt died in September, eighteen hundred and ninety-six. At the January session, eighteen hundred and ninety-eight, of the General Assembly of this State, a statute was enacted changing the corporate name of the Trustees of the Sheppard Asylum to “ The Trustees of the Sheppard and Enoch Pratt Hospital,” and this change was agreed to by the body corporate. The condition, and the sole condition, prescribed in the twelfth clause of the will having been complied with, it is now insisted: first, that the residuary clause creates a trust which is void because so vague and uncertain as to the objects to be benefited that it cannot be enforced, and that, therefore, the next of kin and heirs at law — a brother and a sister of the testator — are entitled to the property constituting the residuum; secondly, that the residuary clause creates a perpetuity and is therefore void; thirdly, that the Act of i8p8, ch. if, changing the name of the Sheppard Asylum to the Sheppard and Enoch Pratt Hospital, is unconstitutional and void, and that therefore the residuary estate passed to the alternative residuary legatees and devisees — a niece and six nephews. The last position will be considered in the next succeeding case. As the second proposition is dependent entirely upon the disposition which may be made of the first one, we now proceed to examine and consider the first contention.
It is safe to say that thousands of cases have been decided where the same or synonymous words in different wills have, in view of the unlike circumstances at
If we lay out of view for the moment all canons of construction and critically read the words of the clause in controversy — for the simplest and most obvious method of discovering the intention of a testator is to read the language he has employed to give expression to that intention — his purpose is clearly manifested; and if that
He starts with the assertion that he had in his lifetime liberally provided for his niece and nephews who are the alternative residuary legatees and devisees. That he did do this is abundantly clear from the evidence. To each of the six nephews and to the niece and to another nephew who was not named as an alternative legatee, he gave in eighteen hundred and ninety and ninety-two, two hundred thousand dollars, or one million six hundred thousand dollars in the aggregate. He therefore did not intend that they, or the appellants in this case who are not mentioned in the will, should receive any part of the estate disposed of by the residuary clause, unless as respects the alternative residuary legatees and devisees the condition on which the. gift to the Sheppard Asylum was made to depend should fail to be complied with by the omission of the Legislature to change the name of the asylum to the Sheppard and Enoch Pratt Hospital. We begin then with the postulate — and an obvious postulate it is — that the testator did not design these contesting parties to have any portion of his residuary estate at all; and if by reason of an interpretation that may be placed on his will, they do succeed to it, they will get it in spite of his unmistakable intention that they should not possess or enjoy any part or parcel of it whatever. But it is equally clear that he intended the Sheppard Asylum — • a corporation “ and its successors forever ” — to have and to hold this residuum; for he explicitly declares: “it being my intention and meaning to make said corporation, The Trustees of the Sheppard Asylum, the residuary legatee and devisee under this my last will and testament.” Nor does he stop with that emphatic declaration, for he follows it with a specific instruction to his executors “ to set over, transfer and convey by proper deeds, assignments and transfers the said residue of my estate to the said corporation, upon and subject, how
There is a peculiar significance in the use of the word ' “ bargain ” as indicating the nature of the estate given by the residuary clause. The gift is made upon something more than an ordinary condition, for the condi
After making this absolute donation the testator declares that whilst he did not wish to alter the operations and management in the working of the Sheppard Asylum as then conducted, “ it is my zvish and will that the income from my residuary estate shall be used to complete the present buildings and grounds and for the erection of such other buildings or building as will accommodate not less than two hundred additional inmates, and after that the income from my aforegoing donation shall be devoted mainly to the care of the indigent insane in the most advisable manner at very low charges or absolutely free, as the trustees of said corporation in the exercise of their best judgment as to the rate to be charged may deem best and wisest to promote the object of this donation.” This is the clause which, it is claimed, creates a trust, and was intended to create a trust; and which trust when created, it is further insisted, is void for uncertaintjc We are thus brought face to face with the question: Does this clause, located as it is, following a gift that is unmistakably absolute, cut down the estate thus given to a trust estate? Does the clause raise an imperative trust?
With great diligence, zeal and ability vast numbers of cases construing the words “ wish ” and “ will ” and kindred words, have been collected on the briefs. In those cases these words and similar ones have been held to create trusts, and it is contended they accomplish that result here. It is undoubtedly true that these and other like precatory words will, under conditions but not invariably, raise or imply a trust. It would be an almost endless, as it certainly would be a wholly unprofitable, task to enter upon an examination of these numerous cases. The whole question is one of the interpretation of each particular will. Whilst the doctrine is settled that precatory words may raise a trust, the application of the doctrine to individual cases depends entirely upon the provisions of each separate will. Negro Chase v. Plummer, 17 Md. 177. “ Precatory words may be used which, standing alone, would under the decisions create a trust, but they may be qualified and controlled by other expressions showing that the gift is absolute; and that every thing is left to the discretion of the devisee or legatee,” 2 Pom. Bq., sec. 10x6. “ Expressions suffi-' cient per se to create a trust may be deprived of their effect by the context expressly declaring or by implica
the strongest terms were employed, relief has been denied,” that is, a trust has not been declared. Negro Chase v. Plummer, supra.
Whatever may have been the results reached in the earlier cases on this subject there is a strong tendency nowadays to restrict the doctrine of precatory trusts within more reasonable and somewhat narrower bounds than formerly; and Mr. Pomeroy states that upon the authority of more modern decisions the whole doctrine may be summed up in a single proposition. And this is the proposition which he announces: “ In order that a trust may arise from the use of precatory words the Court must be satisfied from the words themselves taken in connection with all the other terms of the disposition that the testator’s intention to create an express trust was as full, complete, settled and sure as though he had given the property to hold upon a trust declared in express terms in the ordinary manner. Unless a gift to A with precatory words in favor of B is in fact equivalent in its meaning, intention and effect to a gift to A ‘ in trust for B,’ then certainly no trust should be inferred.” 2 Pom. Eq., sec. 1016. The same doctrine is stated in Story Eq. Jur., sec. 1069, in this way: “Accordingly, in more modern times, a strong disposition had been indicated not to extend this doctrine of recommendatory trusts; but as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.”
Whether or not a trust has been created in any given case.by the use of precatory words is, in the last analysis, a question of construction and interpretation to ascertain the intention: Did the testator by the use of the words he employed intend to create a trust? “ The effect of expressions of this nature in creating a trust depends entirely on the supposed intention of the donor (or testator) to be gathered from the tenor of the instrument.” Hill on Trustees, 114, quoted with approval in Williams v. Worthington, 49 Md. 579.
It certainly seems singular that a testator having a full and settled intention to create a trust (for that is what must be read on the face of the will or no trust can exist), should adopt a mode which at best appears to be a mere suggestion or inference, instead of employing the familiar method and creating the trust by an express declaration. And this becomes even more singular when we find in the third clause of this identical will that a trust is created by the use of apt and appropriate words. Had Mr. Pratt intended to give this residuum in trust he could have used precisely the words he employed in the third clause where he designed to found a trust. “ It can scarcely be presumed, that every tes
If there be one thing settled on this subject of the effect of precatory words, it is that such words are not always imperative. “ They are deemed to be flexible in character and must yield, if the imputed interpretation be against the rules of law or so inconsistent with other provisions of the will that both cannot stand together.” Negro Chase v. Plummer, supra. “ Where the words of a gift expressly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is that they express the testator’s belief or wish without imposing a trust.” 1 Jar. on Wills (5th Am. Ed.), star page 389. Now we are at a loss to see how Mr. Pratt could well have given a more absolute estate in this residuum to the Sheppard Asylum than he did give in the beginning of the twelfth clause. There is not only no suggestion of a trust in the donating words, but the very scheme of the gift and the particular method prescribed for the conveyance and transfer of the property by the executors to the beneficiary, forbid the inference that these deeds or transfers were to contain provisions fettering the estate with any trust whatever. Obviously he intended the Asylum to hold mediately under the will, immediately under the conveyances and transfers, and he gave no intimation that any thing less than the unlimited estate, unclogged by any trust, should be conveyed and transferred by his executors. The words of the gift — that is, the effective donating words — unequivocally point to an absolute enjoyment of the property by the donee, and in this important respect they radically differ from the language in Maught v. Getzendanner, 65 Md. 527, where this Court said: “ It is manifest from the whole will that the testator ne\rer intended to give him (the legatee) this property in his own right and for his own use.” At the very threshold of the residuary clause we are confronted
We have heretofore remarked and we now repeat that no inflexible meaning has ever been, or possibly can be, ascribed to any precatory word, whereby that word whenever it happens to be used in a testamentary paper, must invariably be given precisely the same and no different effect. Indeed, as observed by Pollock, C. B., in Reg. v. Skeen, Bell. C. C. 97, “ there is no word in the English language which does not admit of various interpretations.” The varying circumstances in which it is employed give rise to its various meanings. The character of the estate given to the first taker is always a consideratio'n of much significance in determining whether the words relied on to create a trust ' are recommendatory or imperative. Accordingly a distinction is drawn between cases where the gift to the first devisee is for life only and those in which the gift is absolute with superadded words, Howarth v. Dewell, 6 Jur. (N. S.) 1360; McClernan v. McClernan, 73 Md. 287; and precatory words which in the one case would create a trust would be insufficient to do so in the other. We are dealing now with an absolute gift followed by precatory- words.
But in addition to this: “ In ascertaining whether the precatory words import merely a recommendation or whether they import a definite, imperative direction to (the legatee) as to his mode of dealing with the property, the Court will be guided by the consideration whether the amount he is requested to give is certain or uncertain, and whether the objects to be selected are certain
But it must be borne in mind that there is a distinction between a trust that is void for uncertainty, and an uncertainty that is simply indicative of the absence of an intention to create a trust. In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the other case, there is simply an uncertainty as to whether any trust was intended to be created at all. If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the Courts to engraft a trust upon the gift; but if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust, will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust
Now it is contended that the direction to apply certain portions of the income “ mainly to the care of the indigent insane in the most advisable manner at very low charges or absolutely free as the trustees of said corporation in the exercise of their best judgment as to the rate to be charged may deem best and wisest to promote the objects of this donation,” is so vague and indefinite as not to be capable of being enforced; and it is insisted as this direction follows the words, “ it is my wish and will,”a trust was attempted and was intended to be created for indefinite objects, and that the next of kin and heirs at law are entitled to the property. If it be conceded that the objects of the alleged trust —the indigent insane — are uncertain, it by no means follows that the residuary clause must be stricken down. And it does not follow that the residuary clause must be stricken down, because no matter how indefinite the terms “ indigent insane ” may be, that indefiniteness will not affect the prior absolute gift, unless instead of being an absolute gift it was merely a gift in trust for the indigent insane. The intention to create a trust for the indigent insane must first clearly appear, as in Dashiell v. Atty.-General, or in Maught v. Getzendanner, and it must also be manifest that the legatee — the Sheppard Asylum — was not designed to have a beneficial interest as in Saylor v. Plaine, before the mere vagueness of the objects can strike down the antecedent absolute gift. But the very question at issue is whether a trust was intended to be raised; and to invalidate the whole bequest because the objects of the alleged trust are indefinite, before determining that there is a - trust at all,
“ It may be laid down, however, as well settled upon all the authorities, that in order to justify the Court in construing precatory words in a will as creating a trust, it must appear that the property which is the subject of the trust is definite and certain.” Williams v. Worthington, supra. There is no uncertainty in that part of the
Upon the entire will, in effect the testator has said to the Sheppard Asylum: I give you this property upon a single condition and bargain, which is that you insert my name in your corporate title. When you have done that the property is yours absolutely. But though it is yours absolutely by your acceptance of my condition; still I wish you would do a particular thing with part of the income. But this “ wish and will ” clause relating to the income is not made a condition — that is, does not embody a condition — upon compliance with which your absolute ownership of the corpus of the property is in any way to depend; for I have annexed but one condition in respect to that, and this “ wish and will ” clause does not contain that condition.
It should not be forgotten that words of recommendation and other words precatory in their nature, imply a discretion as contradistinguished from peremptory orders, and therefore ought to be so construed, “ unless a different sense is irresistibly forced upon them by the context.” Williams v. Worthington, 49 Md. 585.
If we were disposed to rest the decision of this case upon mere precedent — that is, upon the construction placed on some parallel provision of another will — instead of grounding it upon principles applicable alike to all wills, we would rely on the case of Negro Chase v. Plummer, supra. The will there interpreted contained
Without going into any further discussion, we conclude by saying that in our opinion judging from the face of the entire will it wras not the intention of Mr. Pratt to create an imperative trust when he used the precatory words contained in the residuary clause; and that, therefore, the Sheppard Asylum took the property covered by the residuary clause without that property being impressed with any trust whatever. This being so, of course, no question as to a perpetuity can possibly arise; and it follows, necessarily, so far as the appellants in this case are concerned, that there is no error in the decree from which they have appealed. That decree denied them the right which they set up to the property disposed of by the residuary clause, and being right in this particular it will be affirmed.
Decree affirmed with costs in this Court to be paid out of the fund.