In re Stickney's Will

Fowler, J., delivered the opinion of the Court. The bill in this case was filed by some of the heirs at law and next of kin of the late Joseph Henry Stickney of Baltimore City, for the construction of certain parts of his will. By the first twenty-four clauses the testator gives “ moderate pecuniary legacies ” to his nephews, nieces and cousins. The remaining fifty-two clauses, with the exception of the twenty-fifth and twenty-sixth, with which we are not now concerned, relate to legacies to a large number of religious, charitable and educational corporations. Many of these were attacked by the original and amended bills, but by amendments and by dismissing their appeals as to some of these clauses, the plaintiffs have left but two clauses, namely, the seventy-fifth and seventy-sixth for our consideration. The distinguished counsel representing the parties on both sides of the three appeals now before us, in addition to exhaustive oral arguments, have filed voluminous briefs. Both in the preparation of these briefs, as well as in the arguments at bar, they have shown such fullness of learning, thorough investigation, and such skill and zeal as to excite admiration. We cannot, however, give our assent to the view in reference to the seventy-sixth or residuary clause, which has been so ably advocated by the plaintiffs’ counsel. The statement of their position, it appears to us, will demonstrate the futility of any successful attempt to maintain it in the face of the language of the testator on which it is founded. — 99 — That position is that the residuary clause is void because it violates the rule against perpetuities. They contend, secondly, that the 75th clause is void for the same and other reasons ; and, thirdly, that, by the laws of the State of New York, under which the corporation which is the residuary legatee was incorporated, it has no corporate capacity in any view to take more of said residuary estate of the testator than will amount to or yield the annual income of ten thousand dollars. By the decree of the Court below it was held that the fourth and fifth sub-clauses of the 75th clause, and the whole of the 76th or residuary clause were void, and that the bequests thereby made should go to the plaintiffs and defendants, next of kin of the testator, in certain proportions not necessary now to mention. All the other parts of the will were sustained. From this decree the plaintiffs have appealed so far as it sustains the seventy-fifth clause. Some of the defendants who are next of kin and have the same interest as the plaintiffs have taken a similar appeal. The residuary legatee has appealed generally from the decree. The question based upon the supposed fatal objection of a violation of the rule of perpetuity by the seventy-sixth clause; second, the incapacity of the residuary legatee to take, and, thirdly, the validity of the seventy-fifth clause will be considered in the order just named. The language upon which the first contention rests is as follows: “ Seventy-sixth. — I give, devise and bequeath all the rest of my estate and property of every kind and description whatsoever, real, personal and mixed, and wheresoever situated or being, which I may own or have any right or title to, at the time of my decease, and that whether the same has been acquired by me heretofore, or shall be acquired by me hereafter, unto the body corporate, formerly existing as a corporation under the name of ‘ The American Congregational Union,’ but which has laid aside that name, and is now properly designated as the ‘ Congregational Church — 100 — Building Society,’ which has its offices in the ‘ Bible House,’ in New York City, and in the ‘ Congregational House,’ in Boston, and of which H. O. Pinneo, Bible House, New York, is (or lately was) treasurer, and I expressly héreby require as a condition of the vesting of this legacy, that the said residuary legatee, the said ‘ Congregational Church Building Society,’ shall release all claim which it has against the ‘ First Congregational Church of Baltimore,’ for any fund or funds, or money owing by said church to it, and any and all claim and demand that it has to, for or against any and all property in the city of Baltimore now occupied by said church, and shall execute to such church a good and valid legal assignment, transfer and release thereof; and shall in like manner release the ‘ Second Congregational Church of Baltimore,’ and the ‘ Canton Congregational Church of Baltimore County,’ from any and all claims and demands which it has or shall have against either of said churches, or any property of any kind used by or in possession of said ‘ Second Congregational Church of Baltimore,’ or said ‘ Canton Congregational Church of Baltimore County.’ ” The words in which the condition is set forth “ and I expressly hereby require as a condition of the vesting of this legacy, that the said ‘ Congregational Church Building Society ’ shall release,” &c., are relied upon as the first and most important step in .establishing the existence of a perpetuity, for in them the plaintiffs, and the defendants who agree with them, have found a condition precedent. In short the contention is, notwithstanding the emphatic terms used by the testator in making the gift, that there was not and was not intended to be made, any immediate bequest; that the condition on which it was given is precedent and not subsequent, and that, therefore, the bequest is subject to the well-known rule against perpetuities and is void in its inception, because the condition is such that it must not necessarily-and under all circumstances be performed within the compass of a life or lives in being and twenty-one years and a fraction afterwards. — 101 — But, notwithstanding the force and skill with which this view was pressed upon us, we fail to find any substantial support for it in the language of the testator. After making such provision as he deemed proper for-.his relations, having no immediate family of his own, he proceeded to distribute the residue among a number of corporations of the character we have already mentioned — giving to the residuaiy legatee nearly one-half of his large estate. It was undoubtedly his intention that all of these legatees, including, of course, the residuary legatee should take, hold and administer-the legacies which he bequeathed to them respectively. We should not, therefore, assume that he intended to violate a settled rule of law, and thus by the will itself frustrate his own declared intention; but, if the language which he used, upon its face, shows such an intention, it would, of course, be our duty to apply the rule “■remorselessly,” Gray on Perpetuities, 378, without regard to the consequences. But it is obvious that before this rule can be applied, the subject to which it is to be applied must exist. As was. said by Sir George Jessel, M. R., in Cunliffe v. Braucker, 3 Ch. Div. 394: “Courts do not regard the consequences of any rule of construction which they may have established, as presenting any objection to its application, when clearly called for." In other words, before the rule will be applied it must be clear that a perpetuity exists. It must be conceded that this view, especially in its application to wills, is supported not only by reason but by the settled rules of construction and the great weight of authority. We do not understand there is any difference between counsel as to the rule, nor the circumstances under which it should be applied, but they differ widely as to the propriety and justice of its application to the will now before us, and the single question, therefore, upon this branch of the case is, admitting the rule here invoked by the plaintiffs, but that it is to be applied only when clearly called for, whether this is such a clear case as to demand its application. It is said that when the language “ is fairly capable — 102 — of two constructions, one of which would produce a legal result, and the other, one that would be bad for remoteness,” we should adopt the former rather than the latter and thus promote the accomplishment of the testator’s intention. Gray on Perpetuities, sec. 633. While in the books there may be found much learning and many nice distinctions in the law relating to conditions precedent and subsequent, yet in the construction of wills we should constantly keep in mind the great object in cases like this, which is to ascertain the testator’s intention, and having discovered that to declare and enforce it if consistent with the rules of law. The question as to whether certain words create a condition precedent or subsequent is generally one of intention, and this is especially so when the condition is annexed-to a devise or bequest. It is said in Creswell v. Lawson, 7 G. & J. 240, that there are no “ precise technical words necessary to the creation of a condition precedent or subsequent, either in a will or deed; but the same words may be construed to operate either as the one or the other, according to the evident sense to which they are used, as indicated by the instrument. Upon this principle,” continues the Court, “all the cases profess to have been decided.” It is equally well settled that if the thing to be done does not necessarily precede the vesting of the estate in the grantee, but may accompany or follow it, and may as well be done after as before the vesting of the estate, the condition is subsequent. 1 Jones Law of Real Estate, 619; Finley v. King's Lessee, 3 Peters, 346. It seems to us that it is evident.that the Acts here relied on as constituting conditions precedent, namely, the execution of certain releases, are capable of being performed either at the time, before or after the vesting of the bequest in the residuary legatee — whether performed at one time or the other, the result to all the parties interested would be the same, hence there is no reason to suppose that the testator intended the releases should be executed before the vesting of the bequest as a protection to the churches which were to be — 103 — thereby benefited. Indeed it would seem upon the plainest principles of justice and equity that the acceptance of the bequest would ipso facto work an equitable release. An obvious construction to be placed upon the language is that when the executors should put the residuary legatee in possession, it was to execute the required releases, and if it should delay or for any reason refuse beyond a reasonable time to act, a Court of Equity would, at the instance of the proper parties, decree releases to be executed so as to give absolute protection. The supposed difficulty here, disappears when we apply the rule as laid down by C. J. Marshall in Finley v. King's Lessees, supra. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent, in which case, of course, no perpetuity arises, for the obvious reason that the bequest vests at once upon the death of the testator and cannot, therefore, be said to be put and kept extra commercium. But it would seem, also, that the form of the gift, “ I give, devise and bequeath,” shows that a present and not a future estate was intended, and that in the contemplation of the testator the residuary legatee was to take at once upon his death, and not at some remote uncertain time in future beyond the period allowed by law. Eldridge v. Eldridge, 9 Cush. 519; 2 Washburne on Real Prop. 449. The remaining words, "and I expressly hereby require as a condition of the vesting of this legacy,’ ’ must be construed so as to effectuate the general intention unless it is clear that intention is contrary to the rule against perpetuity. But “ Courts are averse to construing conditions to be precedent where they might defeat the vesting of estates under a will.” Pennington v. Pennington, 70 Md. 418. And especially is this so “ in regard to residuary bequests.” Dulaney v. Middleton, 72 Md. 75. And in conclusion it is only necessary to say that when the executors are prepared in the course of the administration of the testator’s estate to transfer the legacy, the residuary legatee will then or within a reasonable time thereafter to be fixed — 104 — by the Court in which the estate is being administered, required to execute the releases mentioned in the residuary clause. Thus, we think, the plain intention of the testator would be accomplished, for the residuary legatee would get what it must be conceded it was intended that it and not the plaintiffs should have, and this result would be attained without the violation of the rule against perpetuities. 2. This brings us to the consideration of the second question, whether the residuary legatee has any corporate capacity to take more of the residuary bequest than a sum that will not exceed the annual income of ten thousand dollars. Whether it has such power depends, say the plaintiffs, upon its charter, which is found in Acts of the New York Legislature. It was incorporated under the provisions of the New York “Act for the incorporation of benevolent, charitable and missionary societies,” passed April 14, 1848. The name of the corporation was afterwards changed to the name it now bears, “ The Congregational Church Building Society.” Section 2 of the Act of 1848 is as follows: “And they, and their successors, by their corporate name, shall in law be capable of taking, receiving, purchasing and holding real estate for the purposes of this incorporation to an amount not exceeding the sum of $50,000 in value, and personal estate for like purposes, to an amount not exceeding the sum of $75,000 in value; but the clear annual income of such real and personal estate shall not exceed the sum of $10,000.” Section 6 is as follows : “ Any corporation formed under this Act shall be capable of taking any devise or 'bequest, contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $ 10,000; provided no person, leaving a wife or child, or parent, shall devise or bequeath to such institutions or corporations, more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of — 105 — such one-fourth, and no such devise shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.” The contention of the plaintiffs is that none of the various Acts, 1881, ch. 641 ; 1885, ch. 88 ; 1890, ch. 497 ; 1892, ch. 687, sec. 12, which either amended the Act of 1848 or related to the same class of corporations, made any change whatever in the provisions of section six just quoted, except the Act of i860, ch. 360, which made no change material to fhe question here being considered, and that, therefore, section six remains unaffected, and hence the residuary legatee can only take as is thereby provided. But in answer to this contention it is said that however much the power of other charitable corporations in the State of New York may have been restricted by section 6, it has and can have no force as against this legatee, since the Act of 1871, ch. hi, which is as follows : “Chapter m. An Act relative to the American Congregational Union of the city of New York. Passed March 15, 1871. “The people of the State of New York, represented in Senate and Assembly, do enact as follows : “Section 1. It shall be lawful for the American Congregational Union in the city of New York to take and hold, by gift, grant or devise, or otherwise, subject to all the provisions of law relating to devises and bequests by last will and testament, and to purchase, hold and convey any estate, real or personal, the annual income received from such real estate not to exceed the sum of seventy-five thousand dollars, for the purpose of aiding feeble churches in the erection of houses of worship, and to render such aid, by gift or grant, or by loan, either with or without security. Section 2. This Act shall take effect immediately.” It is conceded, as we understand the position of the plaintiffs, but whether conceded or not, it is plain, that this Act increases the power of this legatee “ to take and hold by gift, grant or devise, or otherwise” from all sources an un — 106 — limited amount of personal property and real estate, the annual income from which shall not exceed the sum of $75,000. Much was said as to the effect of this Act, and especially as to whether, conceding its enlarging effect upon the power of this corporation to take in the aggregate, it altered or repealed the limitations contained in section 6, and whether, also conceding that section 6 is still in force in New York as to this corporation, it has any force outside of that State. But we will not undertake to pass upon these questions, interesting as they are, for assuming that the section in question limiting the power of this corporation to take, prevails in the State of New York, and that it may be recognized in other States, the plaintiffs and defendants who are here relying upon it to show a want of corporate power clearly have no standing, for that purpose, in the Courts of this State, since the decision of the case of Hanson v. The Little Sisters of the Poor, &c., 79 Md. 440, for we there held that the legal capacity of a corporation to take property by devise or bequest in excess of the amount prescribed by its charter, cannot be taken advantage of by heirs at law or next of kin. We there said : “ In regard to the question before us there has been considerable conflict of authority. The Court of Appeals of New York in the matter of McGraw, 111 N. Y. 66, announced the doctrine relied on by the appellants (the heirs at law), but the Supreme Court of the United States in Jones v. Habersham, 107 U. S. 174, adhere to the contrary doctrine, namely, that restrictions imposed by the charter upon the amount of property it may hold, cannot be taken advantage of collaterally by private persons, but only by the State in a direct proceeding instituted for that purpose. And it was so held in a case where, as here, the heirs of a decedent filed a bill to have declared void certain devises to charitable corporations, which it was averred would swell ■ the amount of property owned by the corporation to an amount greater than the charter authorized.” — 107 — The Act of 1871 before mentioned, as we have seen, gives to the residuary legatee' power to take personal property without limit, and real estate not in excess of the estimated value of the whole of the bequest here in controversy. Therefore this case comes directly within Hanson's case, supra, for we there said : “ It cannot be denied that this corporation had power to take any estate and property not exceeding the charter limits, and the devise, therefore, was not void on its face, and it must be held valid as to all the world, until it has been determined at the instance of the State that the charter has been violated * * * * * * The corporation can take property to any amount but can hold it, as against the State, only to the amount provided by the charter.” But it is urged that the doctrine thus laid down should not be applied to this case as against the next of kin. While we are not unmindful of their claims, yet we must not forget, keeping in mind the cardinal rule, that the testator’s intention, as expressed in his will, must be respected and enforced unless contrary to some settled principle of law. Hence there can be no hesitation or doubt as to the proper course to pursue when we discover that 'by following our own doctrine we gratify his clearly expressed will that this legatee should have his residuary estate, and by following the supposed ruling of the Court of Appeals of New York we would give that estate to those who were not intended to have it. And especially should we be governed by our own decision in Hanson's case, and refuse to follow the New York cases cited by the plaintiffs when it is, at least, questionable whether the Courts of that State would enforce the statute in question as against a bequest found in the will of a Maryland testator. Cross v. Trust Co., 131 N. Y. 348; Hope v. Brewer, 132 N. Y. 126; Damont v. Osborne, 140 N. Y. 40. In the case last cited it was held that there was no law that prohibited gifts to charity there by testators in other countries, or that requires New York Courts to reject the gift because it might not in all respects be in conformity with the local law of that State. “ There — 108 — are other.statutes,” said the Court, “that invalidate testamentary gifts to certain corporations unless made within a certain time before death, when the testator has wife, child or parents. But these restraints applied to members of the political community from which the law-emanated and not to persons in other countries where no such restrictions existed. Bequests by such persons to those corporations, without regarding the statutes referred to, would be good if valid at the domicile .of the testator. Our law permits the citizens or subjects of other countries to dispense -charities here in such measure as they wish, and according to such methods as their own laws prescribe. The policy which dictated our statutes against perpetuities and. accumulations did not anticipate any danger from abroad, and our recent decisions are to the effect that they are local in their general scope and effect.” We do not overlook the fact that it was earnestly contended that the language just quoted and similar language used in other cases by the same tribunal, does not, and was not intended to refer to the whole of section six, and especially not to that part of said section which is here relied on and which it is claimed restricts the power of the legatee. But whatever may have been the intention, the language of the.Court is that testators in other States may dispense charities in New York “in such measure as they wish, and according to such methods as their own laws prescribe.” It would seem, therefore, that the law of New York in such a case as this would govern neither the amount of a bequest, nor the method, that is the time when-, nor the manner in which it is to be bequeathed. But be this as it may, our rule as applied.to this case is clear and distinct, and we follow it because we are bound to do so, and because by so doing we gratify and do not frustrate the testator’s expressed wishes. Having held that the residuary clause stands and that the residuary, legatee takes the whole of the residuary estate it becomes- unnecessary to consider the questions presented by the objections raised to the 75th clause, because — 109 — it is provided by the residuary clause that if any of the charitable bequests, legacies or devises for charitable uses or public or local improvements or benevolent purposes made by the will shall fail to take effect, they shall go to the residuary legatee. Therefore in no event can the heirs or next of kin have any interest in the question of the validity or invalidity of the seventy-fifth clause. The residuary legatee being alone interested in having this clause set aside, has abandoned and disclaimed all right to any of the bequests therein made, and has expressly insisted upon the validity of the will and every part of it. (Decided January 7th, 1897.) It follows, therefore, first, that the 76th or residuary clause is free from the objection that it creates a perpetuity ; second, that the residuary legatee will take the whole of the testator’s residuary estate, the heirs and next of kin having no right to raise the objection of its want of corporate capacity to take more than the amount limited by section six of the said Act of 1848; and, third, that the seventy-fifth clause is to be taken and considered as valid. Decree reversed and cause remanded, costs to be paid out of the estate.