Bennett v. Baltimore Humane Impartial Soc. and Aged Women's and Aged Men's Homes
| Decision Date | 23 March 1900 |
| Parties | BENNETT et al. v. BALTIMORE HUMANE IMPARTIAL SOC. AND AGED WOMEN'S AND AGED MEN'S HOMES et al. TURBUTT et al. v. SAME. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.
"To be officially reported."
Actions by Matilda Bennett and others and by William H. Turbutt and another against the Baltimore Humane Impartial Society and Aged Women's and Aged Men's Homes and another. From a decree for defendants, plaintiffs appeal. Affirmed.
Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, JONES and BRISCOE, JJ.
Charles M. Kelly, Oswald Tilghman, and Jos. McColgan, for appellants Matilda Bennett and others. Olin Bryan, A. J. Carr, Hyland P Stewart, and R. D. Hynton, for appellants William H. Turbutt and another. Leigh Bonsal and William A. Fisher, for appellees.
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, while the intention is apparent enough, the object of the proceeding, avowedly, is not to give that intention effect, but to subject 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. While 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 turst 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...
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