Latrobe v. American Colonization Soc.

• Decision Date: 13 May 1919
• Docket Number: 28,29.
• Citation: 106 A. 858,134 Md. 406
• Parties: LATROBE et al. v. AMERICAN COLONIZATION SOC. et al. SOULSBY et al. v. LATROBE et al.
• Court: Maryland Court of Appeals

106 A. 858

134 Md. 406

LATROBE et al. v. AMERICAN COLONIZATION SOC. et al.

SOULSBY et al. v. LATROBE et al.

Nos. 28, 29.

Court of Appeals of Maryland

May 13, 1919

Appeals from Circuit Court of Baltimore City; Morris A. Soper, Judge.

Suits by Ferdinand C. Latrobe and another, trustees, against the American Colonization Society and others, and by Charles M T. Soulsby and others against Ferdinand C. Latrobe and another, trustees. Appeal from an order sustaining the exceptions and demurrer filed by the American Colonization Society to the answer to its petition and from an order sustaining a demurrer to petition of Charles M. T. Soulsby and others. Orders appealed from affirmed.

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

Eugene O'Dunne, of Baltimore, for trustees.

Leigh Bonsal, of Baltimore (Joseph C. France, of Baltimore, on the brief), for Charles M. T. Soulsby and others.

Wm. G Johnson, of Washington, D. C., and D. K. Este Fisher, of Baltimore, for American Colonization Society.

PATTISON J.

This is the fourth time this case has been before this court. It was first before it in the American Colonization Society v Soulsby, 129 Md. 605, 99 A. 944, L. R. A. 1917C, 937.

In that case the court held, in accordance with the contention of the petitioners, the heirs at law and devisees of Caroline Donovan, that the declaration of trust executed by her to the trustees therein named violated the rule against perpetuities in that it attempted to create an active trust which was required to continue beyond the period limited by the rule; but the petitioners were denied the right to recover the property described in said deed upon the ground of its invalidity resulting from such cause, because of the laches of the petitioners and the adversary possession of the trustees for a period of more than 20 years prior to the institution of the proceedings.

The case was again before us in Soulsby v. American Colonization Society, 131 Md. 296, 101 A. 780, on appeal from an order sustaining a demurrer to an amended petition filed by said petitioners. The ruling of the lower court thereon was affirmed.

The case next came to this court on four appeals in one record, in the American Colonization Cases, 132 Md. 532, 104 A. 120. Two of these were appeals by the state of Maryland-one from an order of court sustaining a demurrer to a petition filed on behalf of the state by which it was sought to have the property mentioned in the first appeal declared escheated to the state as the result of the decision in that case; and the other from the action of the court in overruling the exception on behalf of the state to the auditor's account by which a balance of money in the hands of the trustees was audited to be paid to the American Colonization Society.

This court was of the opinion, and so decided, that the property did not escheat to the state, and consequently held that the state had no standing enabling it to object to the distribution of the money in the hands of the trustees. The order in the first of these cases was affirmed, and the appeal dismissed in the second.

One of these appeals was taken by the American Colonization Society from the ruling of the court in sustaining a demurrer to and in dismissing its petition, in which it was claimed as the result of the decisions in the first appeal (American Colonization Society v. Soulsby, 129 Md. 605, 99 A. 944, L. R. A. 1917C, 937) that-

"The trustees named by Mrs. Donovan were its agents; that the property belonged to it, or at any rate that there was only a bare legal title in the trustees, which the society at its will and pleasure is entitled to have transferred to it, working a merger of the legal and beneficial title; that the trust upon which the property was held involved no active duties to be performed on the part of the trustees, and for that reason as well the trustees should be required to transfer to the society the legal title held by them." American Colonization Society's Case, supra.

This court, speaking through Judge Stockbridge, after discussing the contention of the petitioners, said:

"The order of the circuit court sustaining the demurrer to the petition of American Colonization Society, to require a transfer to it of the legal title, and dismissing that petition, will be affirmed."

The last of these appeals was from the action of the court in overruling the exceptions of the Colonization Society to certain items appearing in the auditor's account. Important among them were the commissions allowed the trustees and the fees allowed the attorneys for the trustees, and the amount audited to the American Colonization Society at the suggestion of the counsel for the trustees, to wit, the sum of $2,074.26. This court, after fully discussing and considering these items, affirmed the action of the court in allowing them.

The case now comes before us on two appeals in one record. The second of these (appeal No. 29) is from an order sustaining a demurrer to a petition filed by Charles M. T. Soulsby and others against Ferdinand C. Latrobe and James W. Harvey, trustees, in which the court was asked to pass an order "declaring that the provisions of the declaration of trust of June 22, 1886, are entirely at an end, and the property therein mentioned is now disposed of by the residuary clause in the will of Caroline Donovan in favor of her nine nephews and nieces therein mentioned, and that the trustees may be directed to convey whatever interest they may now have in said property to your petitioners, the representatives of said residuary devisees."

The petitioners are the same persons who filed the amended petition in American Colonization Society v. Soulsby, 129 Md. 605, 99 A. 944, L. R. A. 1917C, 937, the only change therein being that Robert H. Soulsby, Amelia Soulsby Foster, and Lucy Soulsby Mitchell, the children and residuary devisees of Robert Soulsby, one of the original petitioners who has died since the decision in that case, are substituted for him.

The petition alleges that Caroline Donovan made the deed of trust above referred to, "by implication reserving to herself as the creator of the trust all right and title in said property except as conveyed for the purposes therein stated," and that "all right, title, and estate which remained in her, subject to the trust created by said deed, were devised by her under the residuary clause of her will to her nine nephews and nieces, and the petitioners now represent and stand in all respects in the place of said nine nephews and nieces, the residuary devisees of Caroline Donovan."

The petition further alleges that the case of the American Colonization Society v. Soulsby, 129 Md. 605, 99 A. 944, L. R. A. 1917C, 937, "was almost entirely presented from the standpoint of the nephews and nieces of Caroline Donovan being her heirs at law, and the briefs in the case and opinion of the court almost entirely confined themselves to the position of the nephews and nieces of Caroline Donovan being her heirs at law, and there was no other consideration given to the fact that said nephews and nieces were the residuary devisees of Caroline Donovan under her will and now stand in exactly the same position as Caroline Donovan would have stood had she been living."

It further alleges that the court in that case held the deed void as a perpetuity, and that the opinion contained expressions "which to a certain extent indicated that the American Colonization Society was nevertheless still the cestui que trust to whom the trustees should account, and it was to a certain extent indicated that the American Colonization Society, the cestui que trust, held adversely to the Donovan heirs"; that in their opinion the claims of the society were by the opinion of the court "entirely put an end to," and that from such decision it is "perfectly clear" that the society "has no rights whatever, and is therefore an utter stranger in this case, having no claims whatever on the property of Caroline Donovan," and that "the receipt of income by the American Colonization Society improperly (as it had no rights) cannot be considered as an adverse holding to the residuary devisees of Caroline Donovan"; that the only trust which was being administered in this court was the trust created by Caroline Donovan by deed of trust of June 22, 1886, and as said trust has been declared by the Court of Appeals of Maryland to be void, and as the Court of Appeals has further decided that neither the American Colonization Society nor the State of Maryland has any rights in said property," there is nothing further to be done in this case except for this court to direct the trustees to convey the property which had been conveyed in trust on June 22, 1886, in accord with the disposition of the same made by Caroline Donovan, in the residuary clause of her said will.

It...