American Colonization Soc. v. Soulsby

• Decision Date: 10 January 1917
• Docket Number: 16,17.
• Citation: 99 A. 944,129 Md. 605
• Parties: AMERICAN COLONIZATION SOC. v. SOULSBY et al. LATROBE et al. v. SAME.
• Court: Maryland Court of Appeals

99 A. 944

129 Md. 605

AMERICAN COLONIZATION SOC. v. SOULSBY et al.

LATROBE et al. v. SAME.

Nos. 16, 17.

Court of Appeals of Maryland

January 10, 1917

Appeals from Circuit Court of Baltimore City; Walter I. Dawkins Judge.

Suit by Robert Soulsby and others against the American Colonization Society, Ferdinand G. Latrobe, Jr., and James W. Harvey, Jr. trustees. From an order overruling the demurrers of the society and the trustees, they appeal. Order overruling the demurrer reversed, and cause remanded.

Argued before BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

William G. Johnson, of Washington, D. C., and D. K. Este Fisher, of Baltimore, for appellant American Colonization Soc.

Eugene O'Dunne, of Baltimore (Charles F. Stein and Donald B Creecy, both of Baltimore, on the brief), for appellant trustees.

Leigh Bonsal and Richard S. Culbreth, both of Baltimore, for appellees.

PATTISON J.

The appeals in these cases are from an order of the circuit court of Baltimore city overruling the appellants' demurrer to the amended petition of the appellees.

As the demurrers assail the sufficiency of the petition, it will be necessary for us to state fully the facts alleged in the petition. These facts are substantially as follows: On June 22, 1886, Caroline Donovan, then 82 years of age, executed a "declaration of trust," which was on the following day duly recorded among the Land Records of Baltimore City. This declaration of trust is in the following words, to wit:

"Whereas I, Caroline Donovan, of the state of Maryland am possessed of certain real estate in the city of Baltimore *** which at present is occupied by warehouses numbered, respectively, 85, 87, 89, 91, 93 and 95 South Charles street, at the northeast corner of Charles and Camden streets; and whereas, for divers considerations me thereunto moving I intend that the American Colonization Society shall have the benefit of said real estate to the extent and in the manner hereinafter described: Now, therefore, that the said society may be at once informed of the above intention, and become possessed of a vested interest in the property aforesaid beyond peradventure, to this end I do hereby declare that I hold the above property in trust for myself during my natural life, I receiving the rents and income thereof as though this declaration of trust had not been made. And after my death then in trust for Ferdinand C. Latrobe and James W. Harvey, Jr., and the survivor of them, and the heirs and assigns of the survivor, in special trust and confidence, nevertheless, to pay to the American Colonization Society the net income, rents and profits of the said real estate ascertained under the supervision of a court of equity, for the transportation annually to Liberia of such colored persons as may desire to emigrate to that country, the said trustees and the survivor, and the heirs and assigns of the survivor, to have the power, should the interest of the trust so require, by and with the approbation and consent of a court of equity first had and obtained, to sell and dispose of the said property, or any portion thereof, from time to time, for reinvestment, with the approbation of the court of such reinvestment, for the purposes that are herein expressed and declared. And if in any year the transportation of colored persons for that year should not require the net income of the said property for the same year, such income, or any balance remaining, shall be appropriated by the said society to the maintenance of public schools for the education of colored children in Liberia."

Caroline Donovan died on March 5, 1890, without issue, leaving a last will and testament executed on the day before her death, in which she, after confirming a gift of her furniture, previously made, to one of her nieces, directed that her entire estate should be converted into cash by her executors, of which she bequeathed to the Washington Lee University, of the state of Virginia, the sum of $10,000; and to the Little Sisters of the Poor of Baltimore City the sum of $1,000. She then directed that:

"All the rest and residue of the proceeds from the sale of my estate as above directed, together with all rents, income, profits, cash left by me, and the proceeds of all debts, dues and credits that may be collectible or converted into money without sale, I hereby authorize and direct my said executors to divide into nine equal parts, and one of said parts I give and bequeath absolutely to each one of my several nephews and nieces, following, namely, to Carrie M. Crowle, John D. Crowle, Emily P. Edmundson, Laura Wamaling, Charles T. Wamaling, Lewis R. Wamaling, Frances Wamaling, Charles Soulsby and Robert Soulsby, that is to say, to each one of them one part or one-ninth of the whole."

The American Colonization Society, named in the declaration of trust as alleged in the petition, started in December, 1816, but was first incorporated by an act of the General Assembly of Maryland passed at its December session of 1831 (Laws 1830, c. 189). That act was repealed and a new charter granted by the act of 1836 (Laws 1836, c. 274), passed March 14, 1837. The corporation was empowered by the latter act "to purchase, have and enjoy to them and their successors, in fee or otherwise, any land, tenements or hereditaments, by the gift, bargain, sale, devise or other act of any person or persons," etc., "to take and receive any sum or sums of money, goods or chattels that shall be given, sold or bequeathed to them in any manner whatsoever; to occupy, use and enjoy or sell, transfer or otherwise dispose of, according to the by-laws," etc., "all such lands, tenements or hereditaments, money, goods or chattels, as they (the corporation) shall determine to be most conducive to the colonizing with their own consent in Africa, of the free people of color residing in the United States, and for no other uses or purposes whatsoever."

Upon the death of Caroline Donovan her will was probated, and six days thereafter the trustees filed their petition in the circuit court of Baltimore city, alleging the execution of the declaration of trust, with the provisions therein contained, the death of Caroline Donovan, and the right of the American Colonization Society, in consequence of her death, to the rents and profits mentioned in the declaration of trust, and concluded by asking the Court to supervise the execution of the trust. The society filed its answer thereto, admitting the facts alleged in the petition and consenting to the passage of a decree as prayed. The court thereupon filed its order, assuming supervision of the trust, and in such order it directed that Ferdinand C. Latrobe and James E. Harvey, Jr., trustees "report annually to the court during the continuance of the trust." The rents derived from the warehouses have ever since been collected by the trustees, and the net rents paid to the American Colonization Society.

It is charged by the petitioners that the trust attempted to be created is void because vague and indefinite and in conflict with the rule against perpetuities; "that it is void also because it is not within the corporate powers or purposes of said American Colonization Society to maintain 'public schools for the education of colored people in Liberia,' because the maintenance of such schools is in no way connected with the colonizing in Africa, of the free people of color residing in the United States, and because the maintenance of public schools in Liberia for the education of colored children would necessarily be largely devoted in the future to the education of colored natives of Liberia whose ancestors were never in the United States"; and if this feature of the trust which is so inseparably connected with the provision authorizing the expenditure of the net income, rents, and profits of the real estate, for the transportation annually to Liberia, of such colored persons as may desire to emigrate to that country, is void, then this latter provision is also void, thereby making the entire trust void. The petitioners charge, however, that if the trust was ever valid, it is no longer a valid subsisting trust, inasmuch as its objects and purposes can no longer be accomplished. In support of this change they allege that the American Colonization Society has always expressed difficulty in getting negroes of a reputable character to colonize in Africa, which fact it is said is borne out by its reports issued from time to time. Its report of 1894 calls attention to the fact that there are few remunerative employments in Liberia, and in its report for the year 1901 it said that:

"Liberia, like every other state, needs good citizens, *** but this society cannot take the responsibility of sending any emigrants to Liberia unless they have proved themselves to be men and women of good character, of intelligence, of at least an elementary education, industrious and persevering. But how can such a class of emigrants be obtained? Your committee would suggest that our honored secretary be authorized to correspond with the principals of a large number of the most reputable African seminaries in this country and the management of our principal religious denominations, and to ask them to recommend such of their pupils as may possess the very highest moral and religious qualifications and who may wish to take up their residence in Liberia. And that from these pupils the selection to be made of such a number as it may be thought desirable to send to Africa during the coming year."

In the same report is found the statement that:

"There have been many applications for assistance in emigrating to Liberia during the past season. Most of them, however, have been from the same class of people as for this

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