Howard v. Waters

Decision Date02 April 1863
Citation19 Md. 529
CourtMaryland Court of Appeals

The exercise of a discretionary power by an inferior Court, in the appointment of a trustee, will not be reviewed and reversed on appeal, at the instance of the cestui que trusts, because accompanied with the assignment of an erroneous reason for its action.

APPEAL from the Equity Side of the Superior Court of Baltimore city.

This appeal is taken from an order of the Superior Court of Baltimore city, sitting in Equity, dated the 4th of August 1858, appointing Andrew G. Waters trustee of the estate of Charles Waters, deceased, in the place of Freeborn G. Waters deceased, who was the trustee appointed by the last will of the said Charles Waters.

The testator had devised to Freeborn G. Waters, his heirs executors and administrators, the entire residue of his estate, in trust (under existing circumstances) as to one-half part thereof, to pay the rents and profits thereof to his grand-daughter, Elizabeth Howard, for life, and after her death, the principal to be divided amongst her children and as to the other one-half part thereof, to pay the rents and profits thereof to his grand-daughter, Rebecca White, for life, and after her death, the principal to be divided amongst her children.

He further provided, that if at any time the said Freeborn G Waters, his heirs, executors or administrators, shall be unwilling to act, or continue to act in the trust, the Court of Equity having proper jurisdiction over the subject, shall appoint some other person as trustee, who, in its opinion, is an honest and fair man, and competent to the duties of the trust. And that the said Court, so far as is practicable, shall adopt and abide by the recommendation of the said Freeborn G. Waters, as to his successor in the trust.

Freeborn G. Waters acted as trustee until his death, in the year 1858. By his will, he refers to the power of nominating his successor, which was given by the last will of Charles Waters, deceased; he declares that his son, Andrew G. Waters, is familiar with the condition of the said trust estate, and has been associated with him in the management of the same, and he therefore gives and bequeaths unto his said son all the estate of the said Charles Waters, deceased, " so far as I may lawfully devise and bequeath the same, and not otherwise, for the same uses," & c., & c. " And in case it shall be deemed necessary to vest the said trust estate in him by appointment of a Court of Equity, I do hereby recommend the said Andrew G. Waters as my successor in the said trust," & c., & c.

The executors of the said Freeborn G. Waters filed their petition, offering to account for the said trust in the hands of their testator, and recommending the said Andrew G. Waters as his successor. On the other hand, Howard and wife, and White and wife, by their petition, objected to the appointment of Andrew G. Waters, as one not personally agreeable to them, and not, in their opinion, most advantageous for the proper administration of the trust, and urged the appointment of Thomas Donaldson as trustee.

At this time Rebecca Waters, the widow of the deceased, and who, as widow, had interests in the estate, was living; and Elizabeth Howard and Rebecca White had families of very young children.

The Court, (LEE, J.,) in its opinion, declares that " the fitness and trustworthiness of the gentlemen nominated, cannot be doubted," and therefore, in deference to the will of the testator, Charles Waters, and the recommendation of Freeborn G. Waters, passed an order appointing Andrew G. Waters as trustee, in place of the said Freeborn. From this order the cestui que trusts appealed.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.

S. Teakle Wallis and O. Miller, for the appellants:

The cestui que trusts insist that their appeal should be sustained, and the decree reversed.

1st. Because the wishes of the parties in interest, in the selection of the trustee, have been totally disregarded by the Court, which considered itself bound and controlled by the will of the first trustee, in the selection of his successor in the trust, and therefore appointed the appellee, exercising the discretion only of deciding that he was a fit and proper person, and qualified to execute the trust. This conclusion was arrived at, as is apparent, from the opinion of the Judge below, and upon the face of the decree itself, by the construction the Court gave to the original will of Charles Waters, creating the trust. The decree, therefore, being the result purely of a legal conclusion to which the Court arrived, by the construction of the will, and not the exercise of a sound discretion on the part of the Court, after due consideration of the wishes and recommendations of the parties interested, is a proper subject of appeal and review in this Court. 2 Md. Ch. Dec., 429, Thornburg vs. Macauley. 4 Md. Ch. Dec., 228, McKim vs. Handy. 2 Md. Rep., 284, Scott vs. State, use of Ducker. Hill on Trustees, 316, 277, 278, 279, 736.8 Hare, 101, O'Reiley vs. Alderson. 7 Hare, 428, Marshall vs. Sladden. Union Bank of Md. vs. Ridgely, 1 H. & G., 407. McPherson vs. Israel, 5 G. & J., 60, 64.

2nd. Because no power was given, by the will of Charles Waters, to transmit the trusteeship in the family of the first trustee or to dispose of the trusteeship by testamentary appointment. The will simply contemplated and provided for the contingency, that the trustee, Freeborn G. Waters, in his lifetime, should be unwilling to continue the trust after accepting it, and provides that in such a case, after settling up his accounts, he should...

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3 cases
  • Washington, B. & A. Elec. R. Co. v. Kimmey
    • United States
    • Maryland Court of Appeals
    • June 21, 1922
    ... ... Stephenson, 4 ... Jones (N. C.) 474. The same point was presented to this ... court by the appellants in argument in Howard and Wife et ... al. v. Waters et al., 19 Md. 529, but, not being ... necessarily involved in the case, was not distinctly ... decided." ... ...
  • Clark v. State
    • United States
    • Maryland Court of Appeals
    • January 30, 1934
    ...failure on the part of the court to exercise the discretion committed to it in such cases. Lee v. State, 161 Md. 430, 157 A. 723; Howard v. Waters, 19 Md. 529; Tidewater Co. State, 122 Md. 98, 89 A. 327. The appellant argues that he has been deprived by the removal of his constitutional rig......
  • O'Hern v. Browning
    • United States
    • Maryland Court of Appeals
    • January 13, 1871
    ...decision upon subjects committed to the discretion of such court, as in this and like cases. Robinson v. Harford Co., 12 Md. 132; Howard v. Waters, 19 Md. 529; Hoffman State, 20 Md. 430. Stewart, J., delivered the opinion of the court. Under the Act of 1864, ch. 322, a party may lose his ri......

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