Ortman v. Dugan

Constable, J., delivered the opinion of the Court. This, appeal involves the construction of the will of Thomason Bussell, deceased, who died in the year 1871, by which Janet Levy, her daughter, was devised certain real property in remainder. Hammond J. Dugan, trustee of the estate of Janet Levy, deceased, reported the sale of fee simple property, No. 904 West Franklin street, Baltimore City, to the appellant F. William Ortman, upon the theory that the title thereto' became vested in the said Janet Levy under the fifth paragraph of the will of Thomason Bussell, and by virtue of a deed from Louis Levy and others, the only children of the said Janet Levy to Janet Levy. The fifth clause of the said will reads as follows; “Fifth: I do devise to said William W. McClellan and his executors and administrators and heirs in trust and special confidence nevertheless for the sole and separate use for and during his life, of my son, William Bussell, the house on the south side of Madison street, with its lot, now numbered 149, being the third house, west of Garden street, on said Madison street, and also the middle house with its lot of my *123 three houses on Franklin street west of Fremont street and now numbered 375, in said city, and from and immediately after the death of said .William Russell then to his issue per stirpes and their heirs, and it is my will that on the said child or children of William attaining the age of twenty-one years severally, he or she shall then have the power of disposing of said child’s interest in said property by will or otherwise, but if he, she or they should die without making such disposition and without leaving issue, then it is my will that the same shall go to my daughter Jennette Levy, under and for the trusts as set forth in article second hereof, for and during her life, and from and immediately after her death, then to her issue per stirpes and their heirs The said will contained a residuary clause devising all the rest and residue of her property to all her children per stirpes living at her death and their heirs. The appellant filed exceptions to the ratification of the sale on the ground that the trustee could not convey to him a good and marketable title for the reason that the remainders to Janet Levy and her issue and their heirs were invalid in that they contravened the rule against perpetuities. The admitted and conceded facts, in the record show that the will in question was executed in 1867. That the son, William IT. Riissell died in 1911 and that he had had only two children, both of whom had died before the said will was-executed. That all of the children of Thomason Russell were now deceased, with the possible exception of one son, but that there were descendants living of three of her children: Jennette Levy is the same person as Janet Levy. The lower Court overruled the exceptions and ratified and confirmed the sale and it is from that decree that this appeal is taken. The question to he determined is whether the executory devise in favor of Janet Levy for life and to her issue in remainder is valid and effective or is void under the rule *124 against perpetuities. This limitation was made contingent upon the definite failure of issue of a child or children of William-Russell and upon the omission on the part of such child or children to exercise the power conferred upon them by the will to make a testamentary or other disposition of the property. In order that the estates limited upon this double contingency may be valid, according to the intent of the rule against perpetuities, they must have been certain to vest before the expiration of twenty-one years and ten months after the period of a life or lives in being when the will became operative. Bowerman v. Taylor, 126 Md. 203; Gambrill v. Gambrill, 122 Md. 563; Graham v. Whitridge, 99 Md. 248; Heald v. Heald, 56 Md. 300. It is the time of vesting of tire estate, and not its duration after it has vested, that is to be considered upon the question as to whether the limitation upon which it depends is in conflict with the rule. But vested trusts of unlimited duration, requiring the application of funds to continuing uses, and involving the performance of active fiduciary duties to that end, beyond the period prescribed by the rule, have likewise been held to be perpetuities and consequently void. Missionary Society v. Humphries, 91 Md. 131; American Colonization Society v. Soulsby, 129 Md. 605; Barnum v. Barnum, 26 Md. 119. The application of the rule is not determined by the process of looking back upon events which have actually transpired to ascertain whether the specified contingency has in fact happened within the period which the rule allows, but by looking forward from the time of the devise and considering whether the contingent event might have occurred beyond the period of a life or lives then in being and twenty-one years and ten months additional. Unless the event was certain to happen within such a period of time, a devise dependent upon its occurrence is invalid. In view of these established principles it is clear that the limitation here in question can not be sustained. It is made to depend upon a contingency which might readily have oo *125 ctirred after the expiration of the period within which the rule against perpetuities permits the estate to be validly vested. "Whether any child or children of William Russell, the first life beneficiary, would die without leaving issue and without disposing of his, her or their interest in the property, could not be determined until the end of a life or lives which were not in being at the death of the testatrix, and possibly more than twenty-one years after the death of the life tenant, "William H". Russell. The contingency, therefore, upon which the property was devised to J anet Levy for life and in remainder to her issue was not certain to happen, if at all, within the period defined by the rule against perpetuities, and there is hence no alternative but to hold the limitation to be ineffective. Decree reversed and cause remanded, with costs to the appellant to he paid out of the estate.