Goldsborough ex rel. Goldsborough v. Martin

Miller, J., delivered the opinion of the Court. James L. Martin, died in October, 1872, seized and possessed of valuable real and personal estate, and leaving a will by which he devised one-half of his property to his wife, and as to the other half as follows: “Item. — I give, devise and bequeath unto my dear wife, Ellen F. Martin, the other half of my estate, real, personal and mixed, in special trust and confidence, that she will hold the same for the use and benefit of my dear daughter Henrietta M. F. Groldsborough, and I direct that the same shall he invested in safe and productive stocks or securities, or on real estate, and the rents, issues and profits arising — 499 — from the same, to collect and receive, and to pay over the same to my said daughter, or use the same in her support and maintenance, as in her discretion she may deem best for the interest and advantage of my said daughter. And I direct and will, that the said trustee may, in her discretion, use the whole income in the support of my said daughter, if she deems the same necessary for her comfort and support, but should there remain at any time a surplus, the same shall bo invested for the use of my said daughter, which surplus so invested, may be used at any time for my daughter’s comfort or necessities. And in case my said daughter TIennie shall die without leaving issue, then I give, devise and bequeath the whole of the estate hereby given in.trust, to my dear wife, in fee simple. And in case my said daughter shall die leaving issue, the trust hereby created shall extend to and be executed for said issue in the same manner as directed for and on behalf of my said daughter. And in case such issue shall die in the life-time of my said wife, then I give the whole trust property to my said wife in fee simple. And 1 do further direct and will, that my said wife may, in her discretion, pay over to or use, for the use of my said daughter, any p irt of the trust property given to her, and the receipt or release of my said daughter shall be a full discharge to my said wife for the same. And I do order, direct and will that my said wife may, by will or other instrument of writing, designate and name a proper, and suitable person to succeed her in said trust, unless the property shall have become hers by the happening of the contingency above mentioned. And I do further order and direct, that my said wife, Ellen F. Martin, shall not be held liable for any loss that may arise from any investment of property hereby directed.” “ Item. — I do hereby authorize and empower my wife to sell and dispose of the whole, or any part of my real estate, in her discretion, at either public or private sale, — 500 — and the proceeds arising therefrom to dispose of as herein-before directed.” The testator left surviving him his widow and his daughter, Mrs. Goldsborough, who was his sole heir at law, and the wife of the appellant, Richard H. Goldsborough. In December, 1872, Mrs. Goldsborough died intestate, leaving surviving her, her said husband, and an infant son, (the other appellant,) who was born in March, 1871, during the life of the testator, and an infant daughter, who was born in November, 1872, after the testator’s death, and died in October, -1873. In November, 1873, the bill in this case was filed by the surviving husband in his own right, and by her infant son by his said father as next friend, against Mrs. Martin, the widow and trustee named in the will, insisting that the above devise created a perpetuity and was void in all its parts, and hence there was an intestacy with respect to the property so attempted to be devised, and the same descended to Mrs. Goldsborough as heir at law, and distributee of the testator, and, upon her death and that of .her infant daughter, the same vested in her son, the infant complainant, subject to the life estate of her surviving husband therein. The bill then prajrs for a jDartition, or a sale for the purpose of partition, of the real estate, and an account of the rents and profits thereof, and for general relief. Mrs. Martin, in her answer, after admitting the other averments of the bill, denies that the trusts thereby created are void, as tending to create a jDerpetuity, and insists they are good and valid testamentary dispositions of the property to which they refer; and she further insists that there is, in that portion of the will, a valid limitation of said property to herself, by way of executory devise in case the issue of Mrs. Goldsborough should die in the life-time of respondent, and that the Court will not entertain and decide, for the purposes of partition or sale, the questions presented by the bill, while it is yet uncertain whether this devise to her may not take — 501 — effect. A pro forma decree was then passed on bill and answer, dismissing the bill, and from that decree this appeal is prosecuted. The rule against perpetuities is one of the established landmarks of the law. It was considered and applied by this Court in the case of Barnum’s will, 26 Md., 119, and in the more recent case oí Deford's will, 36 Md., 168; and it makes no difference in its application, whether the estate he limited by way of legal settlement or under cover of a trust. As was held in Barnum’s Case, if the trusts require in their execution, a longer period than that prescribed by the rule, viz: a life or lives in being at the time of its commencement, and twenty-one years, and a fraction of a year to cover the period of gestation, thereafter, and the property devised to the trustees is thereby rendered inalienable for snob longer period, tbe law denounces the devise in trust as a perpetuity and declares it void. That the clause of the will now before us, which extends tbe trust for the benefit of “the issue” of the "testator’s daughter, Mrs. Gfoldsborough., offends the rule, does not, we think, admit of reasonable doubt. The term “issue” is here used without restriction, and embraces all the lineal descendants of the daughter. Power is given the trustee to appoint some one to succeed her in the trust, after her death, and this of itself, would render possible the continuance of the trust far beyond the prescribed limit. But besides this, if' the trust were valid and the testator’s intention could be carried into effect, a Court of Equity would be bound to supply a trustee to execute the trust so long as descendants of the daughter might come into existence and become cestuis que trust under it, and thus it might endure to remote generations. Beyond question, the rule forbids this, and it seems to us plain, that this clause is just as objectionable as either of those pronounced void in the cases referred to. The next question is, does the striking down of this clause for the benefit of the issue invalidate the previous — 502 — trust for tlie benefit of the daughter ? In our judgment it does not. It is a gift to the daughter, a named individual, in esse when the will was made and took effect, followed by a gift upon her death to a class. We have been referred to no authority, and have found none, which would justify us in holding the former gift invalid because the latter violates the perpetuity rule. On the contrary, it seems to he well settled, that where successive estates are created, and the first in order of succession is not void for remoteness, it is good, although the subsequent estates should he void for that reason. This was conceded in the opinions in the case of Lord Dungannon vs. Smith, 12 Clark & Finnelly, 546, and is stated as a recognized doctrine by Lewis on Perpetuities in 66 Law Lib., 160. The clauses set aside in the wills of Barnum and Deford, were gifts to or in favor of a class, and the authorities show that even in such cases it has been earnestly contended that where some of the class are in esse and capable of taking without violating the rule, the gifts, as to such parties should be held good, hut the Courts have never countenanced this doctrine. The distinction and the reasons for it have been very clearly stated by Sir Wm. Grant in the leading case of Leake vs. Robinson, 2 Merivale, 890. “To induce the Court," (says the Master of the Bolls,) “to hold the bequests in this will to he partially good, the case has been argued as if they have been made to some individuals who are, and to some who are not, capable of taking. But the bequests in question are not made to individuals, hut to classes ; and what I have to determine is whether the class can take. I must make a new will for the testator, if I split into portions his general bequest to the class, and say that because the rule of law forbids his intention from operating in favor of the whole class, I will make his bequests what he never intended them to he, viz: a series of particular legacies to particular individuals, or what he had as little in his contemplation, distinct bequests in each instance to two differ — 503 — ent classes, namely, to grandcliildren living at his death, and to grandchildren born after his death.” It has also been argued that the daughter, Mrs. Goldsborough, took an estate tail (convertible under our statutes into a fee,) by implication, under the devise to her, followed by the gift over “in case she shall die without leaving issue.” But by our Act of 1862, ch. 361, we are required to read the terms, “die without leaving issue,” as here used and from which the implication is supposed to arise, as importing a failure of issue at'the time of the death of the daughter, and not an indefinite failure of issue. This, in our judgment prevents the implication contended for. We are also further of opinion, after the best consideration we have been able to bestow upon the subject, that the rule in Shelley’s Gase does not apply to this will, and that Mrs. Goldsborougli took only an equitable life estate in the property thus devised in trust. The remaining question is, what becomes of the other clause, “ And in case such issue shall die in the life-tiine of my said wife, then I give the whole trust property to my said wife in fee simple?” This devise is not void for remoteness, because it is clear the contingency upon which the limitation over is to take effect, must happen, if at all, within the allowed limit of time. The difficulty in sustaining it arises from the invalidity of the previous clause extending the trust for the benefit of the issue, but we think it may be upheld upon the authority of the case of Monypenny vs. Dering, 2 De G. McN. & G., 145, decided by Sir Edward Sugdex. In that case the testator devised an estate in trust for his brother Phillips Monypenny for life, and after his death in trust for the first son of said Phillips for life, and after his death in trust for the first son of such first son, and the heirs male of his body, and in default of such issue, in trust for every other son of said Phillips successively, and in default of issue of the body of his said brother Phillips, or in case of his not having any at his — 504 — decease, in .trust for liis brother Thomas Monypenny for life, and after his death in trust for Thomas G. Monypenny, the eldest son of Thomas, for life, and after his death in trust for the first son of the said Thomas G., and the heirs male of his body, and in default of issue of the body of said Thomas G., in trust for every other son of his said brother Thomas successively, and on failure of all such issue of the body of his said brother Thomas then in trust for him, his heirs and assigns forever. Thomas Monypenny died before the testator, leaving surviving him his son Thomas G. Monypenny, who, with his uncle Phillips, also survived the testator. Phillips never had any children and died. The question then arose, who was entitled to the estate, and the Chancellor held, 1st. That Phillips took an estate for life with remainder to his first unborn son, if such son had been born, and that all the remainders over toere void for remoteness: 2nd. That effect was to be given to the clause containing the gift over to Thomas and his sons, as'an independent clause, and that such gift was perfectly valid. There the contingency upon which the gift over was to take effect, viz: failure of issue of Phillips at his death, had happened, and the gift was sustained, notwithstanding the previous gifts to the unborn sons were declared invalid. If then the contingency upon which the gift over in the clause before us is to take effect, viz: death of the issue of the daughter in the life-time of Mrs. Martin, had happened, and the latter were now claiming the property, in that event, we do not see how her claim could be resisted. This being so, we find no difficulty in holding that the trust may continue during the life of Mrs. Martin to await the contingency thus provided for, and we therefore so determine. Under this construction which we have given to this will, after a careful consideration of the very able arguments at bar, and a patient examination of all the authorities referred to and many others, it is plain the — 505 — complainants cannot sustain their bill, and -the decree appealed from must be affirmed. (Decided 5th March, 1875.) The only other view to be taken of the clause last considered, is to treat it as a good executory devise, requiring no antecedent estate to support it. In that event, the title to the real estate would devolve upon the heirs at law of the testator, subject to be divested upon the happening of the contingency, and the personal property upon the executor to be disposed of by the Orphans’ Court, or a Court of Equity as provided in Art. 93, sec. 10 of the Code. If that be the true construction of the clause, it is clear the surviving husband of Mrs. G-oldsborough would have no interest in the property, real or personal, and there could be no partition of the real estate or sale of it for that purpose. The only sale that could possibly be made would be a sale for the purpose of investing the proceeds under the Act of 1862, ch. 156, and whether the provisions of that Act apply to a case where the title is thus held, may be a matter of grave doubt. At all events no such relief could be granted the infant complainant under this bill. To obtain it would require the filing of a new bill with special reference to the provisions of that statute. But upon this point, no opinion is expressed, because we are quite satisfied to rest our decision of the case upon the construction of the will before stated, and to allow the trust to continue during the life of Mrs. Martin. Decree affirmed.