Foos v. Scarf

• Decision Date: 21 January 1881
• Parties: JAMES FOOS v. WILLIAM W. SCARF, and others.
• Court: Maryland Court of Appeals

55 Md. 301

JAMES FOOS v. WILLIAM W. SCARF, and others.

Court of Appeals of Maryland

January 21, 1881

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court. By the deed from Clarke to Foos in December, 1878, therein mentioned, Clarke granted, bargained, sold, assigned, transferred, set over quit-claimed and released, unto the said Foos, his executors administrators and assigns, all the right, title and interest which he, the said Clarke, might have in and to the lot and premises described in the deed of August, 1851, from Clarke to Robinson set out in the opinion. And by the deed from Lanahan in December, 1878, mentioned in the opinion, Lanahan granted, bargained, sold, assigned, transferred, set over quit-claimed and released, unto the said Foos, his executors administrators and assigns, all the right, title, interest and estate, which he, the said Lanahan, might have in the lot and premises described in the deed of October, 1851, from Lanahan to Robertson, set out in the opinion.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY, ROBINSON and IRVING, J.

Joseph Blyth Allston, for the appellant.

The bill is multifarious in that it seeks a construction of the deeds of trust adverse to Foos, and a sale for the purposes of partition, in which he is admittedly not interested at the same time. It is also multifarious in asking the construction of two trusts totally distinct, the beneficiaries of which may be an entirely distinct set of people. This objection may be taken by answer as is done here, as well as by demurrer. Trego, et al. vs. Skinner, et al., 42 Md., 426; Tartar, et al., Trustees vs. Gibbs, et al., 24 Md., 323.

None of the complainants or respondents who claim as heirs of Scarf, are necessary or proper parties to the suit. The property is confessedly all leasehold, and even if limited to the heirs, as is done in the deed to Alexander G. Robertson, it will nevertheless go to the executrix, and on her death to the administrator de bonis non, by whom alone the bill should have been filed. If the objection be made that the word heirs may be used here as descriptive of a set of persons taking by purchase or limitation, the obvious reply is, that this only strengthens and illustrates the former objection of multifariousness, by showing the absolute necessity of a distinct proceeding in reference to the different property held under the different trust deeds in the case. Sheppard's Touchstone, p. 76, ch. 5.

Upon the merits--The terms of the trust declared in the deed to W. R. Robinson are executed. Mrs. Foos, having survived her husband, Scarf, took an absolute estate in the property, which on her death vests in her second husband. The power is annexed to enable her to deal independently with the property in the event of her marrying again. Any other construction presents a case not contemplated by the terms of the trust. If this latter view obtain, then the property reverts to the grantors, Thomas M. Lanahan and George B. Clarke, whose deeds to James Foos vest the equitable title to the property in him. Lewin on Trusts, 118, et seq.

James W. Denny, for the appellees.

The limitation in the will of George W. Scarf in favor of his wife is clearly defined to be a life estate, with a power of disposition. No estate so definitely limited can be enlarged by implication into an absolute estate; such enlargement has only arisen by the conferment upon the devisee of a power of disposition, where the estate given was general or indefinite, in which case, "the devisee or legatee takes not a simple power but the property absolutely. But, when the property is given, as in this case, to a person expressly for life, and there be annexed to such gift a power of disposition," * * * * "then the rule is different, and the first taker in such case takes but an estate for life, with the power annexed; and if the person taking, fails to execute the power, and thus dispose of" the property, "it goes where there is no gift or devise over, to the heir or next of kin of the testator, according to the nature of the property."

Such is the ruling of this Court in Benesch vs. Clark, &c., 49 Md., 497. See Smith vs. Bell, 6 Peters, 72; Boyd vs. Strahan, 35 Ill., 359; Bradley vs. Westcott, 13 Ves., 450; Brant vs. Va. Coal & Iron Co., 3 Otto, 332.

The doctrine laid down in Benesch's Case is applicable alike to fee simple and leasehold estates. The very question in that case was, as to the effect of a bequest to a widow for life, with power of disposition, upon a piece of leasehold property, and whether the power of disposition had been executed by an assignment, &c., by which the widow conveyed, to use the language of the Court, "the entire residue of the unexpired term, with the right and benefit of renewal from time to time forever."

Besides, the Court in its opinion, partly quoted above, recognizes the application to both classes of property, when, in providing for the transmission of the estate on the determination of the life interest, and a failure to execute the power, it says, that it goes "to the heir or next of kin of the testator, according to the nature of the estate."

So that by the application of the principles laid down by this Court, the express limitation of the estate given to Ann A. Scarf by her husband's will, prevents its enlargement by the superadded power of disposition.

It was necessary to make the administrator d. b. n. of George W. Scarf, a party to the bill filed in the cause. Clearly, under the deed of the Howard street property, the heirs of George W. Scarf take as purchaser; and as to all the property, only those of his heirs or representatives who were in esse, at the death of Ann A. Scarf or Ann Foos, without leaving issue or exercising the power of appointment as to the Howard street property, and as to the remaining property, upon a failure to dispose of it, would be entitled to share in the proceeds of its sale. Buck vs. Lantz, 49 Md., 439.

In such case, the trustee, under the various deeds of trust, would hold for the benefit of the heirs or representatives, making themselves such at the time of the happening of the contingency; and a Court of equity having jurisdiction of the trusts, could execute and control the trusts and decree concerning them, without the administrator of George W. Scarf being before it.

If, however, the appellees, in the construction sought to be placed upon the different papers in the record, are sustained by this Court, and yet the Court should think that the administrator d. b. n. should have been made a party, the appellees ask that the Court will exercise the power under the provision of the Revised Code, sec. 51, p. 772, in order that substantial justice may be accomplished by remanding the record for amendment, having passed on the questions properly raised thereby.

MILLER J., delivered the opinion of the Court.

The decree from which this appeal is taken determines that the leasehold property mentioned in the proceedings belongs to the heirs, distributees and legal representatives of George W. Scarf, deceased, that the appellant, James Foos has no interest therein, and that the same be sold for the purpose of partition among the parties entitled thereto. The facts necessary to be stated are as follows:

1st. In February, 1848, Scarf conveyed by deed certain leasehold property on Howard Street in the City of Baltimore to Alex. G. Robinson, in trust for the sole and and separate use of his wife Ann Scarf " for and during her natural life," with power to receive the rents and profits thereof for her own use and benefit, or to sell and dispose of the same or any part thereof absolutely, "so that neither the property nor the rents and profits or the proceeds thereof, shall at any time be subject to the control of the said George W. Scarf, nor be in anywise liable for his debts," and from and immediately after the death of the said Ann Scarf, then in trust, as to the said property or so much of the same as may remain undisposed of by her deed or contract for the use and behoof of her issue if any, and in the event of her death without issue, then to revert back to the said George W. Scarf, his heirs or assigns."

2nd. In October, 1850, Scarf purchased from Robert M. McLane, trustee, leasehold property on Pearl Street, and directed the trustee to convey, and united with him in conveying the same by deed to William R. Robinson in trust, for the sole and separate use of Ann Scarf, wife of the said George, " for the term of her natural life without the let or control of her present or of any future husband whom she may have, and if she should survive her present husband, then after his death with power to grant, assign, sell or dispose of said premises either by deed or will, but should she depart this life before the said George W. Scarf, then and in such case for the use of the said George W. Scarf and his assigns."

3rd. In August, 1851, Scarf purchased leasehold property on Harford Avenue from George B. Clarke, and directed Clarke to convey the same by deed ...