Summary
Appeals from the Circuit Court for Allegany County, in Equity.
The case is stated in the following opinion, rendered hy the Court helow, (Alvey, J.) “ This is an application on the part of the heirs-at-law of Mrs. Mary Hoye, who died in the year 1815, to have her will construed, and certain bequests therein declared void, and that the subject of the bequests he declared to belong to the heirs-at-law.
“By the will of the deceased, admitted to probate in October, 1815, hut hearing date the 6th of August, 1813, among other bequests and devises, she desired and. directed that her lot, in the City of Cumberland, should he divided, and that the one part thereof should he sold hy her executors, and the proceeds divided specifically among certain parties named, and the other part of the lot, with the dwelling thereon, she devised to her niece, Mary Perry, for life, and the reversion • therein, she attempted to dispose of, as follows:
“‘Item. After the death of my niece, Mary Perry, I hereby authorize and direct my executors to disj>ose of the dwelling-house, and the balance of the lot on which it stands, and the funds or proceeds of said sale to he divided into two equal parts, which I devise and bequeath to the trustees of the Mary Hoye School House, in Cumberland, Maryland, for educational purposes, and to the African Missionary Society, for the purpose of converting and Christianizing the African race, share and share alike;’ and after certain pecuniary bequests, the residuary clause of the will, is as follows:
“‘Item. The remainder of my estate, both real and personal, wherever situated, I give and bequeath to the before mentioned Isabella Bizer, Lucy Perry, Lucy Annan and Mary C. Perry, to he equally divided between them, share and share alike.’
“Mary Perry, the life-tenant, died some three or four years ago; and since the filing of the hill in this case, the executors of the testatrix have sold the real estate in controversy. They are parties defendants, and they offer to bring the proceeds of sale into Court.
“ To the bill in this case, certain parties claiming to be the trustees of the Mary Hoye School House, in Cumberland, have appeared and make claim; but as to the African Missionary Society, it has no representation, and it is conceded, that such society has no corporate existence whatever.
“The residuary devisees and legatees under the will also make claim to the proceeds of sale; and in this conflict of claim, the question is, to whom, upon the proper construction of the will, should the proceeds of the sale be awarded ?
“The power of sale conferred upon the executors, and the bequests of the proceeds of sale to the trustees of the Mary Hoye School House for educational purposes and to the African Missionary Society, for ihe purpose of converting and Christianizing the African race, are clearly void; and being void, the real estate, the subject of the power, descended to, and became vested in the heirs of the deceased, at the time of her death, unless it be embraced by the residuary clause of the will. Neither the trustees of the Mary Hoye School House, nor the African Missionary Society, are incorporated bodies; and the objects of the testatrix’s bounty are entirely too indefinite and uncertain to be enforced as trusts. How could a Court of equity ever correct any alleged abuses of the trusts, or determine as to the misapplication of the funds? And a still greater difficulty, who could claim to have such beneficial interest in the administration of the trust, as to be entitled to invoke a Court of equity for the prevention of the misapplication of the funds, or to correct abuses in their administration? Clearly, with objects so vague and indefinite in their nature, admitting of such a wide and undefined range of discretion on the part of those intended, to be intrusted with the funds, a Court of equity, without the extraordinary jurisdiction conferred by the Statute 43 Eliz., ch. 4, would be entirely powerless to enforce or control such a trust. And the Statute 43 Eliz., not being in force in this State, it is only such trusts as a Court of equity, by the exercise of its' ordinary jurisdiction, can enforce, that are held to be valid. And the fact that the bequest is to trustees in no manner relieves the case of the difficulty, for the objection lies to the want of certainty and definiteness in the objects of the bounty, and the want of adequate power and jurisdiction to apply and execute the trust. For instance, upon what principle could the Court determine the nature and extent of the ‘educational purposes’ to which the fund bequeathed should be applied? What children, or class of children, or students, should receive the benefit of it; to what branches of education should it be applied, or to the payment of what expense incurred for the school? Questions such as these, and many others, mig'ht and would likely arise in the administration of the fund; and nothing short of an unrestrained and unlimited power and discretion in the trustees, as absolute as if they were real owners, could deal with or dispose of them, and that upon motives and reasons of their own, without any control whatever. Now, it is a well.settled doctrine, that there can be no trust over the execution of which a Court of equity will not assume control; for an uneontrolable power of disposition or application would be virtual ownership, and not trust. ‘If there be a clear trust, but for uncertain objects, the property that is the subject of the trust, is undisposed of, and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.' Per Sir Wm. G-bant, M. R., 9 Ves., 400. And Lord Eldon, in his celebrated judgment in Morice vs. Bishop of Durhmi, 10 Ves., 522, 539—says: ‘It is a maxim that the execution of a trust shall ho under the control of the Court; it, must be of such a nature that it can be under that control, so that the administration of it can be reviewed by the Court, or, if the trustee dies, the Court itself can execute the trust/ A trust, therefore, which, in case of maladministration, could be reformed, and a due administration directed; and unless the subject, and the objects can be ascertained, upon principles familiar in other cases, it must be decided that the Court can neither reform maladministration, nor direct a due administration, and consequently the trust would fail to take effect. There being no power or jurisdiction in the Court, to direct and control the execution of the trust, because the objects and purposes of if are too vague and indefinite, it is, for that reason, simply nugatory. Every trust, other than charities administered under the Statutes of Elizabeth, must have a definite object, and there must be somebody in whose favor, or upon whose application a Court of equity can decree faithful execution of the trust. And such being the plain requirement to the validity of the trust, there is no ground upon which either of the bequests to charities in this case can be supported.
“This doctrine lias long since been established in this State, and it has been strictly adhered to in all subsequent cases.
“ The same difficulties exist in this case, both in respect to the want of certainty and definiteness of the objects of the bequests, and the absence of means or power to preserve the fund in succession, for the purposes intended, that existed in the cases of Dashiell vs. Attorney-General, 5 //. rf; J., 392; (1 II. d; J., 1; and Needles vs. Martin, 33 Md., (109, and those cases are in all respects conclusive of this, so far as this particular question is concerned. See also Wheeler vs. Smith, 9 How., 55, 80.
“But the questions, in regard to which there is the greatest contention, are those arising upon the claim of the residuary legatees and devisees under the will. They claim, in the first place, that by the direction to sell, there was such entire and complete conversion of the realty into personalty, as to entitle them, upon failure of the charitable bequests, to receive the proceeds of sale as money under the residuary clause of the will, and whether there be any real foundation for this contention, must next be determined.
“There is certainly nothing on the face of the will to indicate any intention or design of the testatrix that the proceeds of sale directed for the benefit of the charities, should, in any event, fall into the residuum, and pass, under the residuary clause of the will, as part of her personal estate; but all apparent intention is directly to the contrary. She clearly supposed and intended that each and every devise and bequest in her will would and should be effective; and at most, there could be nothing more than mere conjecture or surmise as to what would have been her disposition of this particular part of her estate, if she had .been advised at the time that her benevolent intentions, in regard to the charities, could not be made effective. All that can be claimed, therefore, for the o|>eration of the residuary clause, is only such property as may be embraced thereby, by strict legal construction of its terms, irrespective of any special or particular intent of the testatrix.
“Since the cases of Cruse vs. Barley, 3 P. Wms., 20, and Ackroyd vs. Smithson, 1 Pro. C. C., 503, and the many subsequent decisions made upon the authority of those leading cases, such a question as that raised here, as to the conversion, and the rights of the parties concerned, can hardty be regarded as one of any doubt or difficulty’ whatever.
“The leading idea in all such cases is, that where the testator directs real estate to be sold for special purposes, as in this case, if those purposes, or any portion of them, become incapable of taking effect, tire heir-at-law will take, for there is an end of the disposition, where there is an end of the purposes for which it was made; therefore, where land is directed to be sold, and converted into money, and the whole or part is given for a purpose, which fails by reason of illegality, the whole or part which, on this account remains undisposed of, results to the heir-at-law; as, for instance, where money to arise from the sale of land, is given to a charity, and the gift is void according to the Statute of Mortmain, or is otherwise limited so that the bequest is void, the heir is entitled. All the decisions concur in this general proposition. Attorney-General vs. Ld. Weymouth, Amb., 20; Gibbs vs. Jiumsey, 2 Fes. & B., 294; Jones vs. Mitchell, 1 Sim. db St., 290; Am.phlett vs. Parlee, 2 Buss, d; M., 24; 1 Lead. Cas. Eg., (3rd Am. Ed.,) 809, 819.
“In this case, the only purpose whatever that the testatrix appears to have had in the direction to sell, was the production of a fund for, and its division between, the charitable objects mentioned in her will. There is nothing to show' that she intended the conversion to take place, not only for the special purposes mentioned, but for all purposes whatever, and as between all other parties who could, in any event, make claim. But such an intent, in order to support the claim of the residuary legatees in a ease like the present, must plainly and distinctly appear. The heir is not to be excluded in favor of either the next of kin or the residuary legatee, by mere implication or intendment. Nothing less than clear, substantive and undeniable intent on the part of the testator will exclude him, and such an intent certainly does not appear from anything on the face of this will.
“ As stated by Mr. Cox in his note to Cruise vs. Barley, the accuracy of which has been often approved and commended, the question in such case is, c whether the testator meant to give to the produce of the real estate, the quality of personalty to all intents and purposes, or only so far as respected the particular purposes of the will. For unless the testator has sufficiently declared his intention not only that the realty shall he converted into personalty for the purposes of the will; but further, that the produce of the real estate shall he taken as personalty,, whether such purposes take effect or not, so much of the-real estate, or the produce thereof, as is not effectually disposed of hy the will at the testator’s death, whether from silence or the inefficacy of the will itself, or from subsequent lapse, will result to the heirs.’ And in the case of Amphlett vs. Parlce, already referred to, the Lord Chancellor said: ‘-The general principle appears to be that the heir must be effectually displaced; that he is not to be displaced by inference or implication, but that there must appear a clear, substantial and undeniable intent on the part of the testator to exclude heirs; otherwise neither can the next of kin, as being entitled under'the Statute of Distributions, take from the executor, nor can residuary legatees, whether they be the executors or specific legatees of the residue, take more than that which is in its nature residue, to the prejudice of the claims of the heir-at-law.’ Many other cases equally strong might be cited, but it is quite useless to extend the citations and references in support of the principle.
“It is only necessary to refer to the recent case in the Court of Appeals, in the matter of Stonebralter’s Will, 49 Md., 12, 104, where the principles, to the full extent that I have stated them, and the authorities to which I have-referred, have been stated and fully proved. ' That was a case as between the heirs-at-law claiming by reason of the illegality of certain devises and bequests to charitable uses, and the residuary legatee, and it was held that the heirs-at-law were entitled.
“For the reasons I have stated, I am clearly of opinion that there has been no such conversion of the realty into-personalty, as to entitle the residuary legatees to receive it in the character of personalty, and as part of the personal estate of the deceased, embraced by the residuary clause of her will, according to the principle laid down in Helms vs. Franciscus, 2 Bland, 560; Gox vs. Harris, II Md., 23, and many other cases to which reference could be made.
“It is contended, however, that notwithstanding there may be no conversion of the real estate into personalty, for the benefit of the residuary legatees, yet the property, in its quality of realty passed under the residuary clause of the will, to the residuary devisees, by force of sec. 309 of Art. 93, of the Code. But I cannot regard this contention as having any force or foundation whatever.
“By that section of the Code, founded upon the Act of 1849, ch. 229, the will is simply made to speak as of the time of the death of the testator, and in that respect changed the former rule of construction or operation of wills. But it has never been supposed that it was the design of that provision to pass the real estate of the testator, irrespective of his real intention. The real object of that provision, as of all legislation in regard to wills, is to enable the testator reasonably and effectually to control the disposition of what he may own at the time of his death. The design of the statute was to break up a former positive rule of the common law, and, in its stead, to substitute a principle by which the testator would be enabled, by the expression of his intention, either in express terms or by reasonable and fair implication, to dispose of all his real, as of his personal estate, to which he might be entitled at the time of his death. This is the full scope and object of the statute; and in accordance with such view of its meaning, have the Courts proceeded in the interpretation of wills made since its passage. Ilea vs. Twilley, 35 Md., 409.
“Now, in this case, as I have already stated, there is not the slightest ground for any reasonable implication, having respect to the real intention of the testatrix, as gathered from the face of the will, that the real estate in question was in fact intended to pass under the residuary clause. All the indications from the face of the will are to the contrary. It was said, in the case of Tingan vs. Carroll, 3 H. <& McH., 333, and quoted with approval in Tongue vs. Nutivell, 13 Md., 421, in speaking of the effect of lapsed and void devises, that it was ‘manifest in both cases, that the testator did not intend the land cle facto devised to go to the residuary devisees;’ and so it may be said in this case; and that being so, the rule established by the cases just mentioned, that when a devise of real estate is declared void, the heir-at-law, and. not the residuary devisee, is the party entitled, fully applies. 18 Md., 416; 49 Md., 14, 105. And this well established rule is in no manner modified or affected by the 13th section of Art. 93, of the Code; but it remains in full force. In the case of Deford, vs. Deford, 36 Md., 168, the will (as appears from the record, though not from the case as reported,) was dated the 9th of November, 186tT, and Mr. Deford, the testator, died in 1810, and tlie residuary clause of the will was of the most ample and comprehensive character, directing ‘that the rest and residue’ of the testator’s large estate, consisting of both real and personal property, should be divided into five parts, for allotment among certain of his children. And, in the argument of that case, the able counsel on both sides fully conceded that, one of the devises being void, the real estate embraced in the void devise passed to the heirs-at-law, and not under the residuary clause of the will. And the Court, in passing upon the question, treated it as fully settled by the-decision of Tongue vs. Nutwell, and therefore no longer an open question.
“ The cases arising under the present English Statute of Wills, 1 Viet., ch. 26, can have no application, as authorities, in this State, upon the question, even by analogy. By the 3rd section of that statute, the devising power of the testator is extended generally to all the real estate to which he may be entitled at the time of his death; and, by the 25th section, it is expressly provided, that unless a contrary intention shall appear by the will, real estate or the interest in real estate, comprised in any void or lapsed devisó, shall be included in the residuary devise, if any. It is, therefore, no matter of construction, but of positive statute regulation, and our statute contains no such provision.
“In this case it appears the real estate, the subject of the charitable bequests, has been sold by the executors, but as those bequests have failed, and they were the only purposes for which the sale was directed to be made, the heirs-at-law took the real estate by descent in the condition in which it was left by the testatrix, and, consequently, the sale was made without legal object or power. Smith vs. Glaxton, 4 Madd., 484. Inasmuch, however, as one of the objects of the present bill is to have the property sold for distribution among the heirs of the deceased, and there is nothing appearing to impeach, in any way, the fairness of the sale that has been made by the executors, I shall ratify that sale, and direct the proceeds, together with all the rents received, to be brought in for distribution among the heirs. The fact that the sale was unadvisedly and erroneously made, will in no way affect the right of the heirs to receive the proceeds. The executors will be treated as trustees, holding the money to the use of the lieirs-at-law. Davenport vs. Gottman, 12 Sim., 610, 613.”
From the decree passed to give effect to the conclusions, stated in the foregoing opinion, these appeals were taken.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
