Colburn v. Union Protestant Infirmary

Burke, J., delivered the opinion of the Court. Sophia E. Stimpson, of Baltimore City, an unmarried woman, died on the 17th day of March, 1878, leaving a last will and testament duly executed to pass real and personal property in this State. The will was admitted to prohate by the Orphans’ Court of Baltimore City. In this will Doctor Augustus A. Colburn 'was named as sole executor, and he was also appointed trustee of a certain portion of the testatrix’s estate. Doctor Colburn died, and letters de bonis non with the will annexed upon the estate of Miss Stimpson were granted to Paul S. Colburn and George G. Hooper, both of whom having died, letters were granted upon her estate to Charles J. Bouchet. George G. Hooper was appointed trustee in the place of Doctor Colburn, and upon the death of said trustee, William G. Towers was by appropriate proceedings appointed trustee in the place and stead of said Hooper, and now holds subject to the order of Court the sum of $2,386, derived from the sale of the property mentioned in the sixth item of Miss Stimpson’s will. Mr. Towers as trustee filed this bill for the construction of that' item of her will, and has made the Charitable Corporations named therein, the administrator of Miss Stimpson, and certain of her collateral relatives, who now claim the money in his hands, defendants. The bill states that he is in doubt whether by a true construction of the sixth item of the will the bequests therein contained constitute a void trust, or a continuing trust, or an absolute disposition of the property to the corporations named. The sixth item of the will is here transcribed: “Item Sixth—-I hereby devise and bequeath to Doctor Augustus A. Colburn, of Baltimore City, absolutely, one undivided half part of my leasehold lot and warehouses situated thereon *104 known as 370 AY. Baltimore street in the City of Baltimore which is subject to a yearly rent of one hundred and fifty dollars ($150.00) and I further devise and bequeath to said Augustus A. Colburn the other undivided half part of said lot and warehouse to be held in trust for the use and benefit of my nephew Paul S. Colburn for and during his lifetime and I hereby authorze and empower said August A. Colburn, trustee, to sell and convey the said half part of said lot and house devised to him in trust whenever in his judgment he can obtain a* fair price for the same and I desire that the proceeds of such sale shall be invested in ground rents or other good and permanent securities to be held by bun in trust for the use and benefit of the said Paul S. Colburn for and during his lifetime and until said sale is made I desire said trustee to rent out the whole of said property and collect annually the rent for the same and after paying off the ground rent, taxes and necessary repairs to hold one-half of the net proceeds of said rent for the use and benefit of said Paul S. Colburn and to pay the same or the incomes and .profits arising from proceeds of sale of said trust property to Paul S. Colburn during his lifetime. But this trust in favor of Paul S. Colburn is made upon this condition that no part of said rents or of the incomes and profits aifising from the proceeds of said trust property'shall be paid by said trustee to my said nephew, Paul S. Colburn, so long as he continues to indulge in the use of intoxicating drink, and said trustee is directed to withhold from said Paul S. Col-bum the payment of any of said rents and incomes and profits until he is satisfied that my said nephew has given evidence of a permanent reformation in his habits of intemperance and if such reformation should never .take place then in that event said trustee is directed to keep safely the rents and incomes and profits arising from said trust property and loan the same out from time to time on good security until the death of said Paul S. Colburn, and from and after the death of said Paul S. Colburn I direct said August A. Col- *105 burn to hold the one-half of said property devised to him in trust or the proceeds of the sale of the same invested as hereinbefore directed together with any of the rents, incomes and profits thereof which he is directed to loan out during Paul S. Colburn’s lifetime, for the use and benefit of the Union Protestant Infirmary of Baltimore City, the Board of Foreign Missions of the Presbyterian Church of the United States. The Maryland Bible Society and the Presbyterian Board of Relief, for disabled ministers and the widows and orphans of deceased ministers, the annual rents, profits, interest and income of which I desire to be equally divided among and paid to said institutions as the same is received by said trustee.” In the construction of wills it is the duty of the Court to ascertain the intention of the testator, and that intention, as gathered from the four corners of the will read in the light of surrounding circumstances existing at the date of the will is to prevail, unless it contravene some positive principle of law, or be frustrated by some unbending rule of construction assigning an inflexible meaning to particular words. In Woman's Foreign Missionary Society v. Mitchell, 93 Md. 202, the rule is stated by Judge.McShekry in language which may be appropriately applied to the attempt made in this case to frustrate the evident intention of Miss Stimpson with respect to the fund involved in this controversy. “The cardinal canon,” said the Judge, “around which all others centre is this, that the intention of the testator when ascertained from the whole instrument, or from the instrument as read in the light of surrounding circumstances existing at the date of its execution, must be given effect if that intention does not antagonize or conflict with some rule of law or property. At the threshhold we are met face to face by the fact which stands out prominently, that the attempt made under the second of the consolidated bills is to strike down the intention of the testatrix, though that intention ought to be gratified if it'is legally possible to do so. If the *106 collateral kindred who filed that bill succeed in getting the property disposed of by the residuary clause just quoted, they will get it, not because the testatrix wished them to have it, but in spite of the obvious fact that she did not want them to possess it at all. Her intention would be defeated instead of being respected.” It is contended by the appellants that the sixth item of the will creates a trust, after the death of Paul S. Colburn, the life tenant, in favor of the charitable corporations mentioned, and that that trust is void, because there is no limit to its duration. In our opinion the discussion of the rule against perpetuities has no proper place in this case, nor is it necessary to determine what constitutes “active duties” imposed upon trustees, because as we understand Miss Stimpson’s will she created no trust after the death of Paul S. Colburn in the property mentioned in the sixth item of her will. If, therefore, there be no trust, there is no perpetuity to be condemned. “It is obviously essential to the creation of a trust, that there should be an intention of creating a trust, and, therefore, if upon a consideration of all the circumstances, the Court is of opinion that the settlor did not mean to create a trust, the Court will not create a trust when none in fact was contemplated.” ' 1 Lewin on Trust and Trustees, 113. We said in Bennett v. Humane Imp. Socy., 91 Md. 19: “A trust may be created either by the use of appropriate technical words which, of their own proper vigor, indicate that a trust was designed to be raised; or, in the absence of such words, a trust may be created by other language when the purpose to establish it is otherwise sufficiently apparent. In both instances, however, it always becomes a question of intention as to whether a trust exists. If there be a manifest design to establish a trust then a trust will be declared though no apt technical words be employed; and if there be an equally manifest design not to establish a trust, then no *107 trust will be declared though the words employed would, but for the contrary intention, be sufficient to create a trust.” In Pratt v. Sheppard & Enoch Pratt Hospital, 88 Md. 627, Juudge McShebky said: “If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the Court to engraft a trust upon the gift.” The lower Court decreed that the purpose of the trust created by the sixth clause of the will of Miss S'timpson was terminated upon the death of the life tenant, and that the estate in remainder by that clause passed absolutely to the corporations therein mentioned, and the trustee was directed to pay over the fund in his hands representing the trust estate formerly held for the said life tenant to the four corporate bodies in equal shares. Obviously, what the testator said in her will is the best evidence of her intention. Turning now to the will we find that the subject matter of the bequest made by the sixth item thereof was a leasehold lot and warehouse located in the city of Baltimore. This lot was subject to a yearly rent, of one hundred and fifty dollars. She devised and bequeathed to Doctor Colburn, absolutely, one undivided half part of this lot and warehouse. The other undivided one-half part thereof she devised and bequeathed to Doctor Colburn to be held in trust for the use and benefit of Paul S. Colburn, her nephew, for and during his life. She empowered the trustee to sell and convey the half part of said lot and warehouse held in trust whenever in his judgment he could obtain a fair price for the same, and she desired that the proceeds of such sale shordd be invested in ground rents or other good securities to be held by him in trust for the use and benefit of her said nephew during his life, but until the sale should be made the trustee was required to rent the whole property and collect the annual rent from the same, and after paying the ground rent, taxes and necessary repairs, to hold one-half of the net proceeds of the rent for the use and benefit of Paul *108 S. Colburn, and to pay the same, or the incomes' and profits arising from the proceeds of sale of the trust property to him during his life. Paul S. Colburn, the equitable life tenant, ■ as appears from the will was addicted to the excessive use of intoxicating drink, and the testatrix declared that the trust in his favor was- made upon this condition “that no part of said rent or the incomes or profits arising from the proceeds of said trust property shall be paid by said trustee to my said nephew, Paul S. Colburn so long as he continues to indulge in the use of intoxicating drink, and said trustee is directed to withhold from said Paul S. Colburn the payment of any of said rents and incomes and profits until he is satisfied that my said nephew has given evidence of a permanent reformation in his habits of intemperance, and if such reformation should never take place then in that event the said trustee is directed to keep safely the rents and incomes and profits arising from said trust property and loan the same out from time to time on good security until the death of said Paul S. Colburn.” From and after his death, the trustee was directed to hold the trust property devised to him in trust, or the proceeds of the sale of the same invested “as hereinbefore directed together with any of the rents, incomes and profits thereof which .he was directed to loan out during Paul S. Colburn’s lifetime, “for the use and benefit of the corporate charitable organizations named, “the amrnal rents, profits, interest, and income of which I desire to be equally divided among and paid to said institutions as the same is received by said trusteed It is upon the words which we have italicized that the contention is made that a trust was created as to 'the property bequeathed to these institutions, and that the trust is void, because it is repugnant to the rale against perpetuities. The trust created in favor of Paul S. Colburn for life is clear and specific. The trustee was not bound absolutely to pay over to him the rents, income, and profits coming into his *109 hands from the trust property. He was expressly authorized to withhold such jjayments until he was satisfied that the life tenant had “given evidence of a permanent reformation in his habits of intemperance.” It was, therefore, contemplated by the testatrix that at the death of the life tenant, the trustee, in addition to the corpus of the trust estate, might have in his hands rents, profits and income received by him as trustee, and not paid over to the life tenant. These she likewise directed by the language italicized should be equally divided among the institutions named in her will. This we think is the plain meaning and intention of the testatrix. It, therefore, follows that upon the death of Paul S. Colburn, the life tenant, the trust created by the sixth item of Hiss Stimpson’s will was at an end, and that the fund in the hands of the appellant belongs absolutely to the institutions named in that clause of her will, and should be paid to them as directed by the decree of the lower Court. The appellant now has no title to, or interest in the property or funds received by him in his capacity as trustee, and his duty is to pass the same over to said institutions. The only trust created by the sixth item is one in favor of Paul S. Colburn for life and after his death the testatrix intended that the legatees in remainder should take absolute legal estate in the property bequeathed to them. This case falls directly within the rule stated by Judge Schjiuckee, in Prince DeBearn v. Winans, 111 Md. 474: “It has repeatedly been held,by this Court to be the firmly settled law that where an estate is given to trustees in trust to pay the income to a person for life and at his or her decease merely to hold the same for the use of other named persons, the trust ceases upon the death of the life tenant, because its purposes have been accomplished. In such case where the trust property consists of realty, the statute of uses executes the use and vests the legal title in the pai’ty to whom the estate was limited at the expiration of the life estate, and a somewhat similar residt occurs when the estate consists of personalty, *110 unless there be an apparent intention to the contrary, although the statute of uses is, strictly speaking, not applicable to personal’ property.” Decree affirmed, the costs above a/nd below to be paid out of the fund.