Carter v. Mullin , 123 Md. 327 ( 1914 )

The sole question involved in this appeal is, whether or not, under the powers in the will of Thomas W. Slater, the trustees had power to make sale of the leasehold property, the subject of this case.

By will Thomas W. Slater left a large estate to three trustees. After, by different clause thereof, bequeathing certain definite sums to the trustees for certain trusts therein set out, he devised and bequeathed all the rest and residue of his estate to the trustees to execute the trusts, therein set out, for the benefit of his son and his son's children, upon the contingencies therein set out. The trustees named were also named as executors.

In March, 1896, upon application, the parties thereto being all the parties in interest who were in esse at the time, the Circuit Court of Baltimore City assumed jurisdiction of the trusts, and an auditor's account was passed, setting apart certain portions of the estate, to be held by the trustees in divisions, under the different clauses of the will. Held under the residuary clause was the leasehold property which is the subject of the sale in this case.

In April, 1913, the trustees, the appellees herein, entered into an agreement with Julian S. Carter for the sale of the said leasehold property, subject to the ratification thereof by the Court. Said sale was reported and duly ratified without objection. In said report it was stated that Julian S. Carter was acting as the agent of the Pennsylvania Railroad Company. Thereafter, upon the purchaser refusing to pay the purchase price upon the tender of a deed by the trustees, the trustees filed a petition praying that the purchaser be compelled to comply with the terms of sale. Julian S. Carter and the Manor Real Estate and Trust Company answered, disclosing that the said Carter was acting as agent for the Manor Real Estate and Trust Company in the purchase, and claiming that the trustees had no power under the will of Thomas W. Slater to make sale of the said property, and therefore, the Court was without jurisdiction to ratify the same; and denying that the Court could ratify the sale under its general chancery jurisdiction, since the requirements of the Act of 1868, Chapter 273, or of section 198 of Article 16 of the Code (Bagby's Code, sec. 228, Art. 16) had not been complied with. The Court, thereupon, decreed, that the said Carter and the Manor Real Estate and Trust Company pay the amount of purchase money, and the trustees convey the property; and upon the failure of the purchaser to comply, before a certain day, that the writ offieri facias issue. This appeal was thereupon prosecuted.

So much of the residuary clause, as is important for the purpose of a determination of this question, is as follows: "In trust and confidence nevertheless that they will invest the same, so far as the same may be uninvested, and collect and invest the rents, issues and profits thereof in such manner as to increase the corpus or principal thereof." In a subsequent clause there is this provision: "For the purpose of enabling the trustees hereinbefore named, the better to execute the several trusts, hereinbefore provided, I hereby authorize and empower them to invest the trust funds in their hands in such good and sufficient securities as they, or a majority of them shall select, and the same to sell again and convey for the purposes of re-investment or distribution as often as in their judgment, or that of a majority of them, it shall be wise to do so."

This Court has so recently, in two carefully considered cases, reviewed the authorities on the question here involved and announced the law applicable, that we deem an extended discussion unnecessary. The appellants contend that by the last clause "the testator had reference only to the income, which he had already given them power to invest so as to increase the corpus, and the moneys he had bequeathed for investment by them," and did not refer to that part of the corpus which was invested in the lifetime of the testator. In the case of Schloendorn v.Schmidt, 115 Md. 74, the same contention was made. "It is contended by the appellee that the power conferred upon the trustees in this case, under the will of Frederick W. Schloendorn `to invest and reinvest said rest, residue and remainder of my estate, in their judgment and discretion, and to pay the net income, etc.,' has reference only to the `trust moneys coming into the hands of the trustees' and confers no power upon them `to sell the real estate of which the testator took title during his lifetime' and which forms a part of `the rest, residue and remainder' of the estate." After a thorough review of the authorities the opinion concludes: "We, therefore, think that it can be inferred from the power given, under the will, to the trustees `to invest and re-invest,' in their judgment and discretion the said rest residue and remainder of his estate, that it was the intention of the testator to confer upon such trustees the power to sell, in their judgment and discretion, the property of the estate, real or personal, including the property of which the testator died seized and possessed, as well as any property thereafter acquired by the trustees." To the same effect is the case of Preston v. Safe Deposit and Trust Co.,116 Md. 211.

When therefore, the testator, for the purpose of enabling the trustees "the better to execute the several trusts hereinbefore provided," empowered them to invest the "trust funds in their hands," we think, upon the authority of the above cases, that it is clear that his intention was to arm them with full powers to sell the property of the estate, irrespective of whether or not the title to that particular portion had been held by the testator in his lifetime. That the words used were "trust funds" instead of trust estate, we do not think indicates that he intended that only money accruing by way of income was to be used for investments, for all through the will the words are used in the same sense adopted by us. A study of the language of the whole will shows, that by the use of the language "so far as the same may be uninvested" the testator did not intend to limit the power of the trustees to invest, and even though it should appear that he had done so, yet it becomes apparent that such was not his intention, when, in the effort to remove any doubt that might arise from the expressions used in the different clauses, he adds the general clause to enable them the better to execute the several trusts — not all but the one under the residuary clause, but "the several trusts hereinbefore provided."

The case of Ball v. Safe Deposit and Trust Co., 92 Md. 503, relied upon by the appellants is readily distinguishable, from the fact that in the will in that case the testator expressly said that the property in question was not to be sold.

Since the appointment by will had been sanctioned by the Court upon assuming jurisdiction, it was proper and necessary that the sale should have been made subject to the ratification by the Court.

The decrees appealed from will, therefore, be affirmed, but under the circumstances of this case we think it proper that the costs of these proceedings in this Court be paid by the trustees out of the estate in their hands.

Decree affirmed, appellees to pay the costs in this Court.