77 Md. 265 | Md. | 1893
delivered the opinion of the Court.
The appellant conveyed to his mother certain real and personal property, to hold the same in trust, first, to apply certain bonds, or the proceeds thereof, to the payment of his debts, and the balance of such proceeds to pay over to him for his own use. Second, during the natural life of the grantor, the trustee was authorized to collect the rents and income from the trust estate, and, after the payment by her of all necessary charges, the net income was to be paid to said grantor for his own use and benefit, not subject or liable, however, to his debts. The trustee was authorized to sell the trust property in whole or in part, and invest the proceeds for the use and benefit of the grantor, subject to the trusts declared in said deed. The grantor reserves to himself the power to dispose of the trust property' by will; and the deed declares that the trusts thereby created shall cease from and after the death of the grantor.
The trustee named in the deed, who was the mother of the grantor, died, and by proper proceedings in the Circuit Court for Baltimore County the appellee, Mr. Edward N. Rich, was substituted as trustee in her place, and the Court assumed jurisdiction of the trust.
Subsequently the grantor, who as we have seen, is the only beneficiary named in said deed, applied to the trustee, Mr. Rich, to have $8,000 of bonds, which constituted part of the trust estate, delivered to said grantor, to be applied by him to the payment of his debts.
The Court below, however, by a pro forma order dismissed the petition, and the grantor has appealed.
Inasmuch as the appellant has disclaimed any intention to impeach the deed of trust by these proceedings, we do not think it proper to do more than determine whether, under the circumstances above set forth, the
The object of the appellant is certainly to be commended' — the application here considered having been made by him to secure funds to pay his debts; and the only question is whether his object can be attained in the manner proposed.
The appellant reserved to himself in the deed, power to dispose of the trust estate by will; and in order to meet the difficulties suggested by a possible exercise of this power, or of a failure to exercise it, the appellant offers “to stipulate by contract, irrevocable, with the trustee, against any disposition by will of the bonds referred to;” and the persons who would be the appellant’s heirs-at-law and next-of-kin, if he should now die intestate, have agreed that the said bonds may be released from the trust, and delivered to the appellant for his own use.
But it is impossible, at this time, to ascertain who may be legally entitled to claim the bonds should the appellant survive his sister and nephew, and then die intestate. The agreement proposed to be executed by the persons just named, would, it is clear, be a very uncertain and unsatisfactory protection to the trustee — even supposing the appellant can execute a valid, irrevocable contract not to dispose of the bonds by will.
Can he execute such a contract which would be valid and binding upon him, and thus virtually destroy the power reserved in the deed? The language of the power itself, and the intention of the donor, as gathered from it, must determine this question. Nevin and Wife, et al. vs. Gillespie, et al., 56 Md., 320; 4 Kent’s Comm., 345.
It is clear from the language used in the deed, and there is no contention in this case to the contrary, that
It was held in Wilks vs. Burns, et al., 60 Md., 68, that the donee of a jmwer having no reversionary interest, and required to execute the power, if at all, by will, could not enter into a contract with reference to the execution of that power, and that the contract by which the donee of the power agreed to execute an irrevocable will, as well as the will executed in pursuance thereof, was void.
It was said in that case, and may be said here, that the donor of the power ‘ ‘requiring it to be executed by last will and testament, clearly intended that it should remain under the control of the donee until the testamentary disposition could take effect, or, in other words, until the death of the said donee.” So long as the deed stands, the trust estate must remain undisposed of by the appellant, and when, by his death, the trust ends, the property, if disposed of at all by him, must be by will.
We have not considered whether the deed of trust can be, as was suggested, successfully assailed by creditors of the appellant, nor whether, as was also suggested, he can revoke it at his pleasure. The first of these questions is certainly not before us on this appeal, and the appellant has disclaimed any intention of raising the second by informing us that he has no desire by these proceedings to impeach the deed of trust.
Our conclusion, therefore, is that the order appealed from must be affirmed, with costs to the appellee, to be paid out of the trust fund in his hands as trustee.
Order affirmed, with costs to appellee, ~ to he paid out of the trust fund.