Boyce v. Kelso Home for Orphans of M. E. Church

• Decision Date: 09 January 1908
• Citation: 68 A. 550,107 Md. 190
• Parties: BOYCE et al. v. KELSO HOME FOR ORPHANS OF M. E. CHURCH et al.
• Court: Maryland Court of Appeals

68 A. 550

107 Md. 190

BOYCE et al.

v. KELSO HOME FOR ORPHANS OF M. E. CHURCH et al.

Court of Appeals of Maryland.

Jan. 9, 1908.

Appeals from Circuit Court of Baltimore City; Thos. Ireland Elliott, Judge.

Bill by executors of James Boyce, deceased, against Kelso Home for Orphans of the Methodist Episcopal Church and others, legatees under the will of said James Boyce, deceased, for construction of the will. A decree was rendered construing the will. Thereafter, William W. Boyce and another, surviving executors, filed a supplemental bill for further construction thereof. From a decree thereon, construing the will, the defendants John A. Boyce, Catherine B. McLeod, and others, William W. Boyce and another, and Mary E. Post and others, separately appeal. Their four appeals were heard on one record. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ.

Vernon Cook and Edgar H. Cans, for appellants. John Philip Hill, A. Morris Tyson, and Joseph Packard, for appellees.

WORTHINGTON, J. James Boyce, of Baltimore county, died on the 16th day of August, in the year 1891, leaving a last will and testament, which was, after the death of the said decedent, admitted to probate by the orphans' court of said Baltimore county. By the provisions of this will the testator, after directing the payment of his just debts and funeral charges, gave and bequeathed the sum of $5,000 to each of four charitable institutions, as follows: To the Kelso Home for Orphans of the Methodist Episcopal Church $5,000, to the Home of the Aged of the Methodist Episcopal Church $5,000, to the Union Protestant Infirmary of the City of Baltimore $5,000, and to the Home of the Friendless $5,000. After some other bequests which do not concern this controversy, he bequeathed the sum of $2,000 to his son William Wheeler Boyce, in trust for the use under certain conditions of his grandson Samuel Whitfield Boyce Hiss. He directed that all these bequests be paid free of collateral inheritance or other tax, which taxes he requested should be paid from his estate. He then directed that all the rest, residue, and remainder of his estate, real and personal, situate in the state of Maryland and in other states, should be divided by his executors into six parts. "* * * When said division shall have been made by my executors, I give, devise and bequeath one of such shares, to be designated by my executors, to my son James Boyce, and another to my son John A. Boyce, and another, to my son William Wheeler Boyce, all in their own right absolutely, respectively;" and he then gave, devised, and bequeathed the other three shares to his three sons aforesaid, and to the survivor of them, in trust, for the benefit of his three daughters, Amelia Stopford, Mary Elizabeth Post, and Catherine Harrison, for and during their natural lives, respectively, etc. The last clause of the will was as follows: "Lastly: I constitute and appoint said three sons and my counsel, William A. Fisher of Baltimore city, to be the executors of this my last will and testament, and I confer on my executors power to complete any contract into which I may have entered, and to make sale without application to any orphans' or other court, of my real estate, or to lease the same for terms of ninety-nine years, renewable forever, or for shorter terms, and to sell the reversions and ground rents, and to expend such sums as they may deem expedient in opening roads or other development of my real estate with a view to rendering it more salable, and to make such sales and leases, not only for the purpose of paying my debts but to enable them to make the division into six parts as hereinbefore provided; it being contemplated by me that they will sell my real estate though not with undue haste." Mr. Boyce died, leaving a large estate consisting of both real and personal property, and owing mortgage and other debts to a considerable amount. In January, 1892, the executors named in the will, except his son James Boyce, Jr., who renounced, filed a bill of complaint in the circuit court of Baltimore city, through Ex-Judge William A. Fisher, as their solicitor, asking the court to pass a decree construing the meaning and effect of all the provisions of said last will and testament, and empowering and directing the executors to administer the entire estate under the supervision and direction of that court. In the twelfth paragraph of the bill the executors suggested to the court what they were advised was the true construction of the provisions of the said last will with reference to the sale of the real estate of said testator; their advice being, as they alleged, that such sale by the executors was mandatory, and left them no discretion as to the necessity or propriety of selling said realty, but only as to the time of doing so, and that the provisions of said will operated from the time of the death of the testator a conversion of all said realty into personalty, and that the intention of the testator was to create a mixed fund composed of his personalty and of his realty, out of which his debts and pecuniary legacies were first to be paid, with the further intention that the residue of said fund should be divided by his executors among his residuary legatees as in said will was directed. Consent answers were filed to this bill by several of the adult parties in interest, including John A. Boyce, William W. Boyce, Amelia Stopford, Mary E. Post, and others, some of them acceding to the construction of the will suggested in the bill of complaint and others submitting the proper construction thereof to the judgment of the court. Just what decree the circuit court passed pursuant to this bill and the answer thereto does not appear by the record; but whatever it was, it seems to have been acquiesced in by all the adult parties until the year 1905. On the 14th day of November in that year, in pursuance of a previous order of court, the auditor made a special report, in which he mentioned 16 audits as having been already passed in the case, none of which, as by order of court was directed, were to be reopened. In these audits the proceeds of the sale of both real and personal property had been used together as a blended or mixed fund,...