Conner v. Trinity Reformed Church of Boonsborough, Washington County

• Decision Date: 13 December 1916
• Docket Number: 2.
• Citation: 99 A. 547,129 Md. 360
• Parties: CONNER et al. v. TRINITY REFORMED CHURCH OF BOONSBOROUGH, WASHINGTON COUNTY.
• Court: Maryland Court of Appeals

99 A. 547

129 Md. 360

CONNER et al. v. TRINITY REFORMED CHURCH OF BOONSBOROUGH, WASHINGTON COUNTY.

No. 2.

Court of Appeals of Maryland

December 13, 1916

Appeal from Circuit Court, Washington County, in Equity; M. L Keedy, Judge.

"To be officially reported."

Special case stated for the construction of a will in which Georgie Addie Conner, Eva May Davis, Cora V. Wilson, and Edwin Nicodemus were made plaintiffs and Trinity Reformed Church of Boonsborough, Washington County, Md., the defendant. Decree in favor of defendant, and plaintiffs appeal. Affirmed as modified.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Levin Stonebraker and J. A. Mason, both of Hagerstown, for appellants.

Charles C. Keedy and Henry H. Keedy, Jr., both of Hagerstown, for appellee.

CONSTABLE J.

Acting under the authority of the Forty-Seventh general equity rule (article 16, § 206, of Bagby's Code), the heirs at law of the late John L. Nicodemus, and the Trinity Reformed Church of Boonsborough, Md., had docketed a special case stated, in which the appellants were made plaintiffs and the appellee the defendant. The object thereof was to have the court construe the last will and testament of the said John L Nicodemus, in so far as the sixth paragraph was concerned First, as to whether the devise, mentioned therein, was valid or void; secondly, if the said devise was determined to be valid, what estate in the property the defendant took; and, thirdly, if the devise was determined to be void, did the heirs of John L. Nicodemus inherit the property.

The sixth paragraph reads as follows:

"I give and devise unto the Trinity Reformed Church of Boonsborough, Washington county, state of Maryland, my hotel property known as the Commercial Hotel, in Boonsborough, Washington county, Maryland, in trust to apply the net annual income therefrom to the support of the minister, who may from time to time be in charge of said church."

The statement of agreed facts filed stated that the appellants were all of full age and were the only heirs at law of the said John L. Nicodemus; that the appellee is a religious corporation, duly incorporated, and is engaged in religious work in Boonsborough, Md., and is the corporation intended to be the object of the bounty of the said John L. Nicodemus under the sixth paragraph of his will, and has a minister in charge who is an important factor in promoting the objects of its corporate existence; that the said Mr. Nicodemus was, during his life and at the time of his death, a member of the said church, and that the said Mr. Nicodemus died seised and possessed in fee of the property mentioned in said sixth paragraph.

The court below decreed: (1) That the devise to the appellee was valid; (2) that the appellee took an absolute estate in fee simple, with all the rights incident to such an estate; and (3) that in the event of the property being sold by the appellee, the net proceeds of the sale should be held and invested by the appellee and the net income therefrom applied to the support of the minister who might from time to time be in charge of said church. From that decree this appeal arose.

The contention of the appellants is that by the true construction of the said paragraph, a trust was created, and that as it would offend the rule against perpetuities, the devise falls and is void.

It is apparent, therefore, that the principal discussion must be as to whether or not there is a trust created. And so often have cases, similar in many respects to the present one, been before us and our predecessors, that the rules, applicable to their settlement, have become fixed and settled. The late Chief Judge McSherry, in delivering the opinion of this court in Bennett v. Humane Imp. Society, 91 Md. 10, 45 A. 888, has clearly stated the rule by which courts are to determine when a trust does, or does not, arise. He said:

"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. *** The particular circumstances which denote such an intention are necessarily variant; but when a trust 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 in the same case, Judge McSherry also had the following to say, which is particularly appropriate to the facts of the case under consideration:

"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 the 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 whilst the intention is apparent enough, the object of the proceedings avowedly is, not to give that intention effect, but *** 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

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