Bennett v. Humane Imp. Socy. , 91 Md. 10 ( 1900 )

The question arising on the record now before us is this: Is the will of Samuel Turbutt void and inoperative? The will, omitting the formal clauses, is in these words: "After my lawful debts and funeral charges are paid I give, devise and bequeath all the rest and residue of my estate both real and personal to the Baltimore Humane Impartial (Society) and Aged Women's and Aged Men's Homes; provided the trustees and managers of said homes admit and receive into said homes during the existence or continuance of said homes one aged man or one aged woman each and every year for each and every four hundred dollars of the income to be derived from the property real and personal hereby given, devised and bequeathed; said aged person so to be admitted shall not be required to pay any fee for admission or outfit, and provided also that such aged person so to be admitted shall have always through life maintained a good moral character and that his or her penury shall not have been the result of his or her vicious or immoral conduct." This provision is assailed by the collateral next of kin and heirs at law of the testator, who left no descendants, upon the following grounds: First, that the will creates a trust in the subject-matter of the devise and bequest; secondly, that the trust thus created is void, because the beneficiaries are uncertain and indefinite; and thirdly, that the trust is void because it is a perpetuity.

It is obvious at the outset that the testator did not intend these contesting parties, who are his cousins, to have any portion of the estate which he left. His intention was that the legatee and devisee named by him should possess it. If that legatee and devisee does not get the property disposed of by this clause it will be because the testator's intention is frustrated. Ordinarily the task which devolves upon a Court in dealing with the interpretation of a last will is to ascertain the testator's intention; and the duty then imposed is to give that intention effect, if possible; but in the pending controversy whilst the intention is apparent enough, the object of the proceedings avowedly is, not to give that intention effect, but to subvert and to disregard it altogether. There are, of course, instances where this has been done, because the rules of law imperatively required that it should be done; but when done, it has always been done with great reluctance. Courts are not, or ought not to be, astute in searching for a construction which nullifies a will if there are other equally reasonable interpretations which uphold it. When it comes to the final analysis, as will be seen later on, the main contention of those who assault the will hinges on a meaning which they ascribe to a particular word, though that meaning is not its primary or ordinary signification. So we begin this investigation with two propositions confronting us, namely, that if the appellants get any part of the testator's estate they get it by defeating his intention that they should not have it; and they defeat his intention by ascribing to a word he employed an unusual and inappropriate meaning, which the context does not necessarily demand and which the intention disclosed by the will does not require that the word should have.

We need not pause to discuss the proposition that if this will creates a trust in favor of undefined and indefinite objects the trust is simply void for uncertainty and the next of kin and heirs at law will take the estate. That doctrine is too well settled in Maryland to need discussion at this day. So it comes to this: Has a trust been created ? Is the gift to the Homes a gift upon a trust ? If there is no trust the case is at an end.

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 are employed; and if there be an equally manifest design not to establish a trust, then no trust will be declared though the words employed would, but for the contrary intention, be sufficient to create a trust. Now, in the clause under consideration, no trust is declared in technical terms. That is conceded. Whilst no set form of words is required to create a trust, if there be an intention to create one, still there must be a manifestation on the face of the will of such an intention before a trust will be declared. The particular circumstances which denote such an intention are necessarily variant; but when a trust of the kind relied on here is asserted it may be generally affirmed that where there is a gift to one for the use of another, or where the legatee or devisee is clearly designed to have no beneficial interest in the property given to him, a trust for the benefit of some one was intended to be created. And this conclusion would result either from the words used or from the legal effect of the instrument itself. In the one case there would be an express declaration of a trust, in the other there would be a trust by construction; but in both it is essential that there should be an intention to create a trust, or none will arise. To neither of these classes does this will belong. Let us look, first, to its language, and, then, to its effect to ascertain whether from either or both a design to create a trust is apparent.

The contention is that the use of the word "provided" following the gift to the Homes creates and was intended to create a trust in favor of indefinite beneficiaries. The natural office of a proviso is not to create a trust. Ordinarily the term signifies a condition. 19 Am. Eng. Ency. L. 298 and cases in notes; Haydon v. Stoughton, 5 Pick. 528; 3 Com. Dig. 74, Con. A. 2, 76 A. 4. The word provided may denote a trust when the context justifies such a rendering. But obviously this can only occur when apart from the word itself, the intention to fasten a trust on the gift is apparent. Words will not be given a distorted or unnatural meaning so that thereby they may be made to create a trust, if by doing this the very trust sought thus to be created would defeat the whole bequest. Words may undoubtedly be bent to subserve a manifest intention, but they cannot be bent from their ordinary meaning to create an undisclosed intention, which when thus created would nullify the will itself.

The appellants rely much on the case of Stanley v. Colt, 5 Wall. 119. That case was cited with approval by this Court inArthur v. Cole, 56 Md. 106. The gift in Stanley v. Colt was to an ecclesiastical body, and it was coupled with a proviso prohibiting a sale of the devised property. But that was not all. Trustees were appointed by the testator and upon them and their successors for whose selection provision was made in the will, full power was conferred to lease the devised estate and to do all other legal acts for the well ordering and management of the property. These trustees were clothed with the legal estate and the ecclesiastical society was simply the beneficiary entitled to receive the rents and profits. The property having been sold, the question for decision was whether the will gave to the society an estate upon a condition which, if broken by a sale, forfeited the estate; or whether the gift was to trustees in trust for the use of the society. It was ruled by the Supreme Court that the obvious design of the will, apparent on its face, and declared in its express provisions, was to create a trust and not to constitute a condition; and therefore the word "provided" was not read according to its literal common law meaning and was not held to impose a condition, but was made to give way to the intent of the testator as gathered from the entire will and was taken as expressing a limitation in trust. So, too, in Sohier v.Trinity Church, 109 Mass. 1, it was held that the fair construction of the instrument then before the Court was that the parties to it intended the title to be in trust, because the purposes of the grant, the terms of the grant "in trust nevertheless and upon condition always," and the character of the title of the grantors all showed that the words "upon condition" were not used in their technical sense. Indeed, without special allusion to other cases, the principle which runs through all those cited in the argument and through many more that might be mentioned is perfectly simple. It is this: When the intent to create a trust is clear from an inspection and reading of the whole instrument the use of the word "provided" or of any other inappropriate term will not thwart the intention. The corollary from this principle necessarily is: That where there is no such intention thus evidenced neither the word "provided" nor any other inapposite expression will be strained from its ordinary meaning merely for the purpose of thereby establishing a trust manifested in no other way, particularly if the establishment of a trust by that means will result in defeating a gift which but for such a construction would be valid and effective.

Apart, then, from the word "provided," upon which the theory of a trust has been constructed, is there in the effect of the clause anything indicating a purpose to establish a trust? This gift to the Baltimore Impartial Society and Aged Women's and Aged Men's Homes is not declared to be for the benefit of indigent aged people who have always through life maintained a good moral character. It is not given for the support of such a class nor to be used for such persons. In this important respect it differs radically from Dashiell v. Attorney-General, 6 H. J. 1;Wilderman v. Mayor c., of Balto., 8 Md. 551, and the other cases relied on. There is no trust for the benefit of indigent aged persons at all; but there is a gift to the body corporate upon a condition that the corporation will do a certain thing, that is to say, will admit to the Homes which it manages a certain number of inmates every year. It may very well happen that the income derived from the devised estate will be entirely insufficient to support the number of persons admitted after the first year under the terms of the will; and this was a contingency which the testator clearly foresaw, and accordingly he did not undertake to dedicate that income to the support of those thus admitted, or to charge it with a trust for their benefit. There is not a word in the will directing how the income shall be disposed of, or pointing out the use to which it shall be applied. There is no trust impressed upon it, and it may be spent as well for the acquisition of property required by the corporation as for any other corporate purpose. There is no restriction on the right of the body corporate to use the income as it sees fit. The title to the property given by the will and the beneficial interest in it are placed in the corporation. The legal effect of the will, then, is far from indicating an intention on the part of the testator to create a trust. Neither by the words used in the will, nor by the effect of the will is a trust created. As there is no trust the doctrine which declares a trust invalid if the objects of the trust are indefinite does not apply. Of course, if there is no trust there is no perpetuity which the law condemns. The legatee and devisee takes a beneficial interest and not a mere naked legal title fettered with a trust, and there is consequently, and there can be, no prohibited perpetuity.

We have said that no trust was created by the will and that none was intended to be created; and we have further said that the Aged Women's and Aged Men's Homes took the property, disposed of by the will, upon a condition. It is proper that a few words be added on this latter subject. The Baltimore Humane Impartial Society and Aged Women's and Aged Men's Homes is a body corporate. Its objects and purposes are in the highest degree laudable. It provides shelter and support — it furnishes homes within its own buildings — for destitute and deserving aged men and women who may be admitted by the Board of Managers. Under its regulations no applicant can be admitted unless two-thirds of the managers consent, nor unless the applicant "shall bring satisfactory testimonials to the propriety of her (or his) conduct and the respectability of her (or his) character." In addition to this an admission fee ranging from two hundred dollars up to seven hundred dollars, according to age and residence, must be paid by each person entering the Homes. Under the charter and regulations, then, the right to determine who shall be admitted and the authority to prescribe the terms upon which applicants shall be received are fully committed to the Board of Managers. That they — the managers — may be lawfully clothed with such a right and such authority cannot be questioned. The possession of both is essential to the orderly and successful government of the institution. Now, the testator's gift to the corporation was a gift for its corporate purposes. There is not an intimation in his will that either the principal or interest is to be used for any other or different purpose. There is no direction that the income shall be used for the support of the persons admitted free, as has already been pointed out; and there is not a word in the will which suggests any other disposition of the funds than the corporation would have made of them had the proviso been wholly omitted from the will. The effect of the provision that for each four hundred dollars of income one person shall be admitted free, is, that of those who the Board of Managers may by a two-thirds vote conclude to admit, one for each four hundred dollars of income shall be received without paying the admission fee prescribed by the regulations; but the four hundred dollars is made no more applicable to the support of that particular individual than to the maintenance of any other of the inmates. If no mention had been made in the will as to the admission of one person for each four hundred dollars of income, the property given by the will would have been applied to precisely the same uses and ends that, under the will, it must now be devoted to — the general corporate purposes of the Homes. How, then, can the mere declaration that for each four hundred dollars of income one person shall be admitted free, when, but for that declaration, the same person would have been required to pay the prescribed admission fee, be anything more than a condition annexed to the gift? Inasmuch as the whole beneficial interest in the property is given to the Homes; and inasmuch as that gift is followed by a clause which simply creates a condition, the true reading of the will is, that the estate given is not an estate given in trust, but one devised and bequeathed to the corporation for its general and corporate purposes upon a condition which does not prevent the vesting of that estate, and which is therefore a condition subsequent. This condition, the record shows, has been formally accepted by the corporation, and it now holds the estate under the will and upon the accepted condition prescribed by the will.

The case was submitted to the Court below without argument and a pro forma decree was signed dismissing the bill of complaint. As that decree denied the relief sought by the parties who assailed the validity of the will it coincides with the conclusion we have reached; and for the reasons we have assigned in this opinion it will be affirmed.

Pro forma decree affirmed with costs above and below.

(Decided March 23rd, 1900.)