79 Md. 464 | Md. | 1894
delivered the opinion of the Court.
This appeal is from the pro forma decree of the lower Court upon a special case stated. Samuel Stein by his last will, after making certain bequests, devised as follows: “All the rest, residue and remainder of my estate and property, of every nature and kind, whether real, personal or mixed, wheresoever situate, as well that which I now have, as that which I may have, be possessed of, or in any manner entitled to at the time of my death, I order and direct my executors hereinafter named, or the survivor or survivors of them, to divide into four equal parts or portions.” He then devises and bequeaths “ one of said equal parts or portions ” to his wife Annie Stein, his son Simon H. Stein, and his son-in-law Harry Friedenwald, and the survivors of them, &c., in trust, for the sole and separate use and benefit of his daughter Bertha Friedenwald for life, “so that she be suffered and permitted for’ and
In Maryland it is questionable whether even this doctrine prevails. Magruder vs. Peter, 4 Gill & J., 329. Neither can the executors derive any increase of power from that clause which confers upon the trustees a power to sell. This power, by the terms of the instrument, was to be used only “for the purpose of making changes of investment”; and even if this were not so, it is well settled that the fact that the same party is both trustee and executor cannot operate to enlarge his powers in either capacity. Keplinger vs. Maccubbin, 58 Md., 203 ; Long, et al. vs. Long, et al., 62 Md., 67. The testator in this case evidently intended his estate to be divided in kind. We must suppose that he believed it could be divided equally and fairly without the necessity for a sale, and there is nothing in the record that convinces us that in this opinion he was necessarily mistaken. If, however, it should become apparent that some portion of the property will have to be sold to do justice to the several parties entitled, a Court of equity would have full power to order a sale and direct the proceeds to be placed in the hands of the trustees appointed by the testator, to be administered by them in accordance with the terms of the trust. We do not think the case of Gilpin, et al. vs. Hollingsworth, et al., 3 Md., 190,has any pertinency to this case. There the Court held, that expressions in a devise importing division by equal or unequal shares creates a tenancy in common. In the case at bar the testator first directs the division of his property and then devises the parts. The decree must therefore be reversed, and.the cause remanded for a new decree in accordance with the views herein expressed.
Decree reversed, and cause remanded.