Bishop v. Safe Deposit & Trust Co. of Baltimore

Decision Date10 June 1936
Docket Number45.
Citation185 A. 335,170 Md. 615
PartiesBISHOP ET UX. v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE ET AL.
CourtMaryland Court of Appeals

Appeal from Circuit Court of Baltimore City; Eli Frank, Judge.

Suit by the Safe Deposit & Trust Company of Baltimore, trustee under the will of Douglas H. Gordon, deceased, and such company and another, trustees under a decree of the Circuit Court of Baltimore City passed in the proceedings entitled, "Ex parte in the matter of the sole and separate estate of Elizabeth Clarke Gordon," against William H. Bishop Jr., and wife. Decree for plaintiffs, and defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

George F. Flentje, Jr., of Baltimore, for appellants.

Douglas H. Gordon, of Baltimore (Brune & Gordon, of Baltimore, on the brief), for appellees.

PARKE Judge.

The appeal in this cause is from a decree to enforce the specific performance by the vendees of their contract to buy of the vendors a certain lot of land. The question is whether or not the vendors, who are trustees, can, without the joinder of the husband of a cestui que trust, convey to the vendees a good and merchantable title to the land sold and intended to be conveyed.

A certain Douglas H. Gordon was married on June 20, 1897, to Elizabeth Clarke Gordon. He died on April 8, 1918, leaving his wife surviving. By the eleventh paragraph of his will he devised and bequeathed to his wife, if she survived him one-third of all the residue of his estate "for her sole and separate use, and free from the control of any husband which she may at any time have, provided, however, as a condition of this devise and bequest, that my (his) said wife shall consent that the provision made for her by the marriage settlement or ante-nuptial contract entered into between her and me (him) prior to our (their) marriage shall be reckoned to be and considered a part of the residuum of my (his) estate, and shall be added to the property otherwise constituting the same before the division thereof, herein provided for shall be made." After the will was executed and before the death of its maker, the condition imposed was duly complied with by the execution by the husband and wife of a deed whereby the marriage settlement or antenuptial contract was rescinded and canceled. Upon the death of the testator, the property embraced in the annulled marriage settlement became a part of the residue of the testator's estate, and thus formed a portion of the whole residue of which a third passed to the widow in accordance with the terms of the will.

The widow later married, on April 26, 1933, one Alexander Gordon from whom she was on January 5, 1935, granted a divorce a mensa et thoro, which, however, left the marital rights of the parties in each other's real and personal property undisturbed. Hokamp v. Hagaman, 36 Md. 511, 517. On February 20, 1936, Elizabeth Clarke Gordon began a proceedings in equity which set forth the devise and bequest to her by the will of her first husband, and presented a detailed statement of all the property which she had acquired, less certain gifts which she had bestowed upon her children; some other items of which she had made earlier disposition; and the land which was not within the state of Maryland. The object of these ex parte proceedings was to avail herself of the right to have the court assume jurisdiction of the trust; to appoint a trustee of her sole and separate estate; and, in this appointment, to have declared the uses and trusts upon which the trustee should hold her property. By these proceedings, the circuit court of Baltimore City, a court of equity, passed a decree on February 20, 1936, in which trustees were appointed to hold the described sole and separate estate of Elizabeth Clarke Gordon, which she had so acquired under the devise and bequest of her first husband, for her benefit during the term of her natural life, and then over to such executors as she might by her last will appoint, or, if she should die intestate, to her administrators, wholly free and clear of the trust in the decree declared, and subject to her testamentary disposition, with full power to the trustees to sell, assign, convey, mortgage, lease, or otherwise dispose of such property and estate, or any of the same, and for such prices and on such terms as might, in their discretion, be deemed desirable or proper in the interest of Elizabeth Clarke Gordon, with full power of investment and reinvestment. The trustees were authorized to execute and carry out all the powers conferred without applying for or obtaining the authority of the court or its approval or ratification. The other terms and provisions of the trust do not require statement as they do not affect the questions on this record.

Among the items of property which were included in the trust declared for the use and benefit of the devisee and legatee, Elizabeth Clarke Gordon, were undivided one-third interests in certain parcels of land whose remaining undivided two-thirds interests were held in trust by the trustees of the remaining two-thirds of the real and personal property of which the testator died seized and possessed. These trustees of the undivided one-third and of the two-thirds interests in one of the parcels of land united as vendors and, in pursuance of their respective powers of sale, sold to William H. Bishop and wife, at an agreed price, and, as an entirety, all their several interests in this parcel. The vendors tendered their duly executed deed conveying the parcel to the vendees, who declined to pay the purchase price and to accept the deed on the single ground that the title was bad because the second husband of Elizabeth Clarke Gordon had not united in the deed as a grantor. The refusal is based upon the contention that the devisee had acquired a statutory separate legal estate under the will of the first husband, and that in this legal estate, upon her later marriage, there vested in the second husband the inchoate marital rights of a husband as the potential survivor of his wife. If this be true, the title would not be good and merchantable without the release by deed of the interest of the husband. Code, art. 45, § 12. The vendees rely upon the statutory provision in force at the time of the second marriage.

In many instances the rigor of common-law principles afforded the wife no protection nor remedy against the improvidence or misfortune of the husband, so the courts of equity early devised remedies by which all or some portion of the property of the wife might be withdrawn from the operation of the rules of the common law and preserved for her benefit. The means adopted were either a general trust for a woman, such as might be created for any other individual, or a special trust for a woman, whose features would be particular provisions as to the ownership and enjoyment of the property or its income, and as to the rights over it of any existing or future husband. Perry on Trusts (7th Ed.) § 625. It is the second form of a trust for women that was created by the will of Douglas H. Gordon. It devised and bequeathed to his surviving wife certain real and personal property whose ownership and enjoyment was limited to her sole and separate use, and so as to be free from the control of any husband which she might at any time have. Here the gift did not become effective until the then husband's death, when the surviving wife would become a widow, so it was a devise and bequest to a single woman for her sole and separate use; and, before marriage, the widow had the same control over the property given as if it had been devised and bequeathed to her absolutely. Sections 646, 646a, 648. The limitation to her sole and separate use and free from the control of any husband which she might have only took effect upon her marriage. Cooney v. Woodburn (1870) 33 Md. 320, 326, 327.

As to a later husband, the testator was a stranger who had made a gift of property to an unmarried woman upon certain limitations in the event of her marriage. Such conditions or limitations of property are sanctioned in equity; and whether the woman be married or single, the trust does not fail if made without a trustee. The husband would become her trustee if the woman be married, and when she married if she be single when the trust was created. Perry on Trusts (7th Ed.) §§ 647, 652, 653, 654; Waters v. Tazewell, 9 Md 291, 308; Winchester v. Machen, 75 Md. 538, 543, 23 A. 956; Lewin on Trusts, 756 (star). Equity would not permit a trust to fail because a trustee was not specifically named. Furthermore, on application a court of equity may assume jurisdiction of the trust and appoint a trustee. For various reasons, some one other than the husband might become preferable or necessary in the care, custody, and management of the corpus of the trust, and the use and disbursement of its income and receipts. Knight v. Knight, 11 Jur. (N.S.) 618; Perry on Trusts (7th Ed.) § 677; Richardson v. Stodder, 100 Mass. 528. When acting with respect to property so settled to her sole and separate use, a married woman is competent to act in all respects as if she were a feme sole. So, unless restricted by the instrument under which she holds, she may sell and convey and devise and give her equitable sole and separate estate in real and personal property as if she were single. Perry on Trusts (7th Ed.) § 655. If this were not true, the intention of the maker of the instrument under which she held would be defeated in large part with respect to her real estate, since the power of the husband to abridge or defeat in part her conveyance or will would be an exercise of control of property which to the extent of this control would cease to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT