Hecht v. Colquhoun

• Decision Date: 09 February 1882
• Citation: Hecht v. Colquhoun, 57 Md. 563 (Md. 1882)
• Parties: HENRY C. HECHT v. ALICE E. COLQUHOUN, and others.
• Court: Maryland Supreme Court

57 Md. 563

HENRY C. HECHT v. ALICE E. COLQUHOUN, and others.

Court of Appeals of Maryland

February 9, 1882

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

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

C A. E. Spamer, and E. O. Hinkley, for the appellant.

J Wilson Leakin, for the appellees.

MILLER J., delivered the opinion of the Court.

This appeal is from an order overruling a demurrer to a bill in equity filed by the appellees against the appellant and one Jacob Seeger. We have recently decided in the case of Chappell vs. Funk, 57 Md. 465, that an appeal will lie from such an order where the demurrer goes to the entire bill. The motion to dismiss in the present case is therefore overruled.

The complainants are grand-children of Robert Carey Long, who died in 1833, seized in fee of real estate in the City of Baltimore, including an undivided moiety of a small lot of ground at the corner of Baltimore and Sharp streets. He left a will by which he devised his interest in this lot, with other property, to his son, Robert Carey Long, Jr., and his son-in-law, John F. Wells, in trust, for the uses and purposes thereinafter mentioned, and among the trusts to which the property is subjected is that mentioned in the following clause of his will, viz., "Fifth. When my daughter, Sophia, or the youngest of the survivors shall attain the age of twenty-one years, then my said trustees shall divide the net income of the property, real, personal or mixed, quarterly or half-yearly among my eight children namely, Ann, Margaret, Jane, Robert, Harriet, Sarah, Eleanor and Sophia, or among the survivors of them, and the issues of such as may be deceased, in just proportion, a whole part to each survivor, and a whole part among the issue of such as may be deceased, and my said trustees shall continue this division from time to time, so that the part of such as decease without issue shall be divided among the survivors, and the issue of such as decease leaving issue, so long as any of the above named children shall survive, and at the decease of the last, my said trustees, or such successors as they shall appoint, shall proceed to make a division by sale or otherwise of the property, and apportion the same among the issue of my children, equally, share and share alike." And by the tenth clause the testator directs his said trustees, "so long as my children shall survive, to continue the mode of payment of their respective portions, namely, to pay each in person," and then declares that his said trustees "shall have power to designate their successors, provided the Orphans' Court of Baltimore County approve thereof, and in the event of their dying and failing to name their successors, said Orphans' Court shall appoint trustees, having regard to the wishes of a majority of my children, expressed in writing to them on the subject."

The bill avers that four of the children named in this fifth clause have died leaving issue, who are the complainants, but that the other four are still living, though childless. It is plain, therefore, that as between trustee and cestuis que trust, the trust created by this clause is a still continuing and subsisting trust. It is also averred, that both the trustees are dead, one having died in 1838, and the other in 1849, but the bill is silent as to whether or not their successors have been designated or appointed according to the power contained in the tenth clause, and there is no specific prayer for the appointment of any one in their place. If it had been the purpose of the complainants to ask a Court of equity to supply a trustee to manage the trust, in the place of those who have died and in default of appointment of their successors according to the terms of the will, it would have been wholly unnecessary, and so far as we can see from the averments of this bill improper to make these defendants parties to such a proceeding. Such appointment could have been made simply upon the...