Hall v. Bryan

• Decision Date: 19 December 1878
• Citation: 50 Md. 194
• Parties: AUGUSTUS HALL, Executor of Estep Hall v. WILLIAM SHEPARD BRYAN, Trustee.
• Court: Maryland Court of Appeals

50 Md. 194

AUGUSTUS HALL, Executor of Estep Hall v. WILLIAM SHEPARD BRYAN, Trustee.

Court of Appeals of Maryland

December 19, 1878

Appeal from the Circuit Court for Anne Arundel County.

Exception.--At the trial of this cause the plaintiff proved that Estep Hall died in February, 1876, and that letters testamentary were granted upon his estate by the Orphans' Court of Anne Arundel County, to the defendant in the same month. He then offered in evidence a certified copy of the will of Margaret Thornburgh, of which the following clauses only need be inserted:

"Item. I give and bequeath unto my nephew, Henry Webster, his executors, administrators and assigns, the sum of fifteen thousand dollars, in trust and confidence that he shall pay the income and annual profits thereof, as the same may arise or accrue, to my niece, Margaret A. Webster, for her sole and separate use, for and during her natural life, so that neither the said trust fund, nor the income thereof nor the proceeds in which the same may be invested and re-invested, shall at any time during her life be subject to the power, control or disposal of any husband whom she may marry, nor in any manner liable for his debts contracts or engagements, and from and after the death of my said niece, in trust for such person or persons as she by her last will and testament, (which whether single or married, she is hereby declared competent to make,) may direct and appoint; should my said niece die married before her husband, the said sum of money or the investments thereof being undisposed of, it is my will that the income shall be paid to her husband during his natural life, and that after his death, the said sum of money, or the investments thereof, shall become the property of the children of my said niece, should any there be living, and that in the event of my said niece dying without disposing of the said sum of money, or the investments thereof, without children living at the time of her death, living her husband, then after his death, or should she survive him, after her death, the said sum of money, or the investments thereof, shall become the property of the residuary legatees under this my last will and testament; and I hereby give authority to the said trustee to make and change the investment of the said sum of money according to his own discretion, from time to time as he may deem proper."

"Item. All the rest, residue and remainder of my estate, real and personal, of which I may die seized or possessed, I direct to be equally divided between such of the children of my said sister, Elizabeth Webster, (except my said niece, Margaret A. Webster, who is above provided for,) as may be living at my death, share and share alike, the child or children of a deceased child to stand in the place of the parent; provided, however, and it is hereby declared to be my will, that so much of my estate as under this residuary clause is given to my nieces, Rebecca T. Tyson, wife of Philip T. Tyson, Elizabeth T. McPherson, wife of John D. McPherson, and Sarah Hall, wife of Estep Hall, physician, respectively, I give and bequeath unto my said nephew, Henry Webster, in trust and confidence that he shall invest and re-invest the same, and pay over the income thereof to the sole and separate use of my said nieces respectively, in the same manner and under the same trusts and limitations as to principal and income of said distributive shares, (including the power to my said nieces to dispose of their respective shares by last will and testament, notwithstanding their marriage,) as are specified and recited in the first clause of this will, in relation to the provision made for my said niece, Margaret A. Webster."

It was shown that Henry Webster assumed the trusts in the will. The plaintiff also offered in evidence the record of the proceedings in a cause in the Circuit Court of Baltimore City, in which Robert M. Henderson and others were complainants, and William Webster, executor of Henry Webster, was the defendant, for the purpose of showing his appointment and qualification as trustee of the property bequeathed to Sarah T. Hall, and his authority to bring this suit. The order appointing him trustee in the place of Estep Hall, deceased, was dated the 31st of May, 1876. The plaintiff also proved that Sarah T. Hall died intestate and childless, on the 15th of May, 1875, leaving Estep Hall, her husband, surviving her, and that Henry Webster died on the 12th of June, 1875. The plaintiff then offered in evidence the two notes declared on, and proved that the signatures thereto were in the hand-writing of Estep Hall, deceased.

The plaintiff then proved by William Webster, that he was the brother and executor of Henry Webster, and brother of Mrs. Sarah Hall, and of Margaret, the wife of Robert M. Henderson; that about a fortnight after the death of his brother, Henry, Estep Hall came into the office of Henry Webster, where witness then was, and consulted witness as to the propriety of his disposing of some of the assets of his wife's estate, giving as a reason the high price of some of them, etc., and stated that he wished to make a permanent investment of those assets, which, in consequence of the death of his wife, belonged to him, and he asked witness to go with him to the Safe Deposit Company's office, and examine Henry Webster's box, to get possession of some assets which had been placed there by Henry Webster for safe keeping; he also stated that he had received from Henry Webster, shortly before his death, statements of said assets and of the trust estate, prepared by H. Webster from memory, which he, Dr. Hall, had asked for, by way of calling Henry's attention to the sinking condition of his health, and not from any want of confidence in him, or any want of confidence that everything was not right; the witness also stated that the assets referred to were no part of the trust estate. That on reaching the Safe Deposit Company's office, Dr. Hall stated that the assets he found in the box corresponded with the list referred to; the list made no mention of the notes which witness found in a separate envelope in the box; when witness found them he held them up, and told Dr. Hall that they seemed to be out of date; he answered that he was perfectly aware of the existence of these notes, and when the trust was filled up with a new trustee, he would make them all right--would make them to the satisfaction of the family.

Afterwards, about the 8th of December, 1875, we went into the office of the Deposit Company to take out some of the assets belonging to Mrs. Hall, which witness delivered to Dr. Hall, but he delivered to him none of the assets of the trust estate; the assets so delivered came principally from the estates of her grandfather and of her brother Joseph, and none from Margaret Thornburgh's estate; witness then called his attention to these notes, and stated that an effort had been made to fill up the trusts with new trustees, including that for his deceased wife, and that in drawing the decree Mr. Bryan had accidentally used his name as trustee, that finding this so, witness consulted the family, who advised him to let it stand, if he, the Dr., would accept the trust, as our relations had always been kind, and they all had confidence in his integrity. That Dr. Hall then answered, by saying that it was the duty of witness, as surviving son, to protect the interest of his own flesh and blood, and that he could not from motives of delicacy accept the trust, of which he was the beneficiary, and he proposed that witness should do so.

The witness further stated, that in crossing the street with a bundle of the assets in his hand to go to the brokers' office, he said to Dr. Hall, "Doctor, if as you wish, I am to be appointed trustee, I would like you to come up to town soon, to have those notes renewed before I accept the trust." Dr. Hall replied, "of course, when you get the new decree, or your name is substituted for mine, and will let me know, I will come up and make them good." He then said, "I would have done so before, because I was perfectly aware of their date, except that I wanted to have a sufficient amount of unincumbered real estate, so as to prevent trouble in case of anything happening to me." That on both occasions Dr. Hall spoke of making an investment in a mortgage on Markoe's land, but the money to be invested in that mortgage was no part of the trust estate mentioned in the said will.

On cross-examination, the witness stated that Dr. Hall never made any intimation to witness on these occasions, that he was not bound to pay these notes, or that he claimed these notes as his own.

The defendant offered no evidence.

The plaintiff thereupon offered the three following prayers:

1. If the jury shall find from the evidence, the will of Margaret Thornburgh, and the record from the Circuit Court of Baltimore City, which were offered in evidence, and shall further find that Henry Webster accepted the trust mentioned in said will, and took upon himself the execution of it, and that Estep Hall executed and delivered to said Henry Webster as trustee for Sarah Hall, mentioned in said will, the two promissory notes which were offered in evidence, and that Henry Webster died in June, 1875, and Estep Hall died in February, 1876, and that Augustus Hall is the executor of Estep Hall, and that the witness, William Webster, in a conversation with Estep Hall, about two weeks after the death of Henry Webster, called his attention to the said notes, (by showing them to him,) and stated that they were out of date, and that Estep Hall then said he was perfectly aware of the existence of the notes, and when the trust was filled up, he would make them all right--would make them to the...