Milligan v. Pleasants

Fowler, J., delivered the opinion of the Court. The two appeals in this record may be considered together. This is an amicable proceeding, instituted for the purpose of correcting certaixx alleged mistakes in a declaration of trust executed by Richard H. Pleasants, the appellee in both appeals, and fox- general relief. [12] It appears that the late Dr. J. Dickinson Logan, on or about the 17th of September, 1879, delivered to the appellee five bonds of one thousand dollars each, of the Gas.Light Company of Baltimore, for the purpose of providing a fund to be used for the maintenance and support of John J. Milligan, and his wife, should he marry, and with remainder to his children, if any, and in default thereof, to his sister, Sophia C. Milligan. The bill alleges that, in consequence of a mistake in drawing the said declaration of trust, it fails to express correctly the intentions of Dr. Logan. And the allegation is that the said Logan, having full confidence in the appellee and in his friendship for the said John J. Milligan and his sister, desired to give the appellee full power to make such investment of said fund as would be most beneficial to said Milligan, and at the same time profitable and safe; but that the said declaration, in consequence of said mistake, has been so drawn as to make it doubtful whether the said Pleasants is not required to invest the said fund in a farm, although the said Milligan is firmly determined neither to live upon a farm nor to engage in the occupation of farming. It is also alleged that such an investment would be prejudicial to the preservation and increase of the fund, and would involve the appellee in a useless and cumbersome circuity of action, because, having a due regard for the welfare of said Milligan, he would be compelled, immediately after purchasing a farm, to exercise the unqualified power of sale and re-investment given him by the declaration of trust, that he might get rid of said farm. A pro forma order was passed by the Court below vacating the declaration of trust, in so far as it directs the trust fund to be invested in a farm, and requiring the appellee to execute a new declaration of trust containing a power to invest in real estate, or real estate [13] securities, in his discretion, and in all other particulars conforming to the terms of the original declaration. The appellee was also ordered to pay over to the said Milligan absolutely, all the income of the trust fund' which has accr-ued since the 23rd September, 1883, when said Milligan reached the age of twenty-two years, and to invest the balance of the fund in his hands in real estate or real estate securities, for the purposes of the trust. John J. Milligan and his sister have both appealed from this order. It requires no authority to show that if a mistake has been made in a written instrument, a Court of equity has ample power to correct it, provided such mistake is shown by the clearest and most satisfactory evidence, and the real intention is established in the same manner. But while the evidence here shows it is the opinion and belief of the witnesses that the written instrument before us does not fully express the wishes of Dr. Logan, it is far from being of that satisfactory character required to secure the aid of a Court of equity in a case like this. In the case of Philpott vs. Elliott, 4 Md. Chan. Dec., 215, Chancellor Johnson says, i£It is not only necessary that strong evidence be produced that a mistake' was committed, and that the agreement signed by the parties does not conform to their intentions, but the stipulation proposed to be introduced, or the correction proposed to be made, must be established by equally conclusive proof. Before the agreement will be reformed, and executed as reformed, the Court must be perfectly satisfied what the real intention of the parties was, or otherwise it will not interfere.” But it does not follow that the apjmllants are without remedy. If the appellee, as trustee, had in fact purchased a farm, which it appears from the evidence he did not do, — it is very clear, from the language of the [14] declaration of trust, that he had ample power to sell the farm, and to invest in real estate securities at any time. It would be useless,, therefore, to require the appellee to go through the empty form, and incur the unnecessary expense and risk of purchasing a farm in order to sell it;- — -the whole object of this proceeding being to obtain authority to invest in real estate securities. There can be no doubt, therefore, we think, that without, vacating or correcting the declaration of trust the Circuit Court has ample power, as a Court of equity, upon the bill filed, praying as it does for general relief, to authorize the appellee, as trustee, to do that directly which it is conceded he can do indirectly. We find nothing in the declaration of trust which supports the contention that John J. Milligan is entitled to the whole income of the trust fund; on the contrary, we think it is clear he is entitled only to the income which has accrued since the 23rd September, 1883, when he reached the age of twenty-two. The trustee is authorized by the declaration to accximulate income until the period just mentioned, or in his discretion to apply it to the maintenance and education of Mr. Milligan for any portion of such period; and having, as is shown by the testimony, determined in his discretion to accumulate, the trustee cannot now be called on to pay the income to Mr. Milligan; — especially as the income so earned was only to be paid for maintenance, &c., prior to 1883. Pole vs. Pietsch and Thiede, 61 Md., 572. J[t is clear, however, and it is conceded, that the income which has accrued since 23rd September, 1883, should be paid to John J. Milligan. It was also contended that the trustee should pay Mr. Milligan a sum of money equivalent to the cash value of implements, stock and furniture necessary for a farm. But, in the absence of the purchase of a farm, we find nothing to justify such a contention. [15] (Decided 24th March, 1891.) What we have said disposes of all the questions raised by both appeals, and it follows that the pro forma order of the Circuit Coitrt must he reversed so far as it annuls and vacates the declaration of trust therein' mentioned, and directs the appellee Richard H. Pleasants to execute a new declaration of trust, and affirmed in all other respects. Decree reversed in part, and affirmed in part, and cause remanded.