Preston v. Safe Deposit & Trust Co.
| Decision Date | 24 June 1911 |
| Parties | PRESTON v. SAFE DEPOSIT & TRUST CO. et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.
Suit by the Safe Deposit & Trust Company, trustee, and another, for the sale of property under a testamentary trust. From an order overruling exceptions to a sale made to Herbert R Preston, he appeals. Order affirmed.
Herbert R. Preston, pro se. D. K. Este Fisher, for appellees.
Argued before BOYD, C.J., and PEARCE, BURKE, URNER, and STOCKBRIDGE JJ.
The case comes before the court upon an appeal from an order of the circuit court No. 2 of Baltimore City overruling the exceptions of the appellant, filed to a sale reported as made to him, of certain property known as "Belle Grove," in Baltimore county.
The exceptions, four in number, all turn upon two questions: the power of the circuit court No. 2 to decree the sale of the property under which decree the sale of "Belle Grove" purports to have been made; and whether or not there was an implied power of sale contained in the will of the late Darius C. Howell.
A concise statement of certain facts will aid in reaching a correct conclusion. Darius C. Howell died in the year 1887, leaving a last will and two codicils, executed in conformity with the statute, for the passing of both real and personal property. The will is quite long, but the essential features of it may be briefly summarized. The first clause bequeaths certain personal chattels and furniture to his wife, Katherine E. Howell. The second clause gives to her during her widowhood his residence in Baltimore City, and his country residence, "Belle Grove," and further provides that upon her second marriage or death the same should constitute a part of the residuum of his estate. By the third clause he gave a half interest in certain property in Baltimore City to a granddaughter, Edith Howell, for life, with remainder to her children and descendants, her surviving, with cross-remainders among them, and, in default of such descendants or their death within a named period, then to another granddaughter, Florence, for life, with remainder in like manner to her children and descendants, and in default thereof the same to constitute a part of the residuum of his estate. The fourth clause of the will contained similar provisions with regard to the granddaughter Florence. The fifth or residuary clause of the will devised and bequeathed the balance of his estate to certain named trustees, for whom the present appellee was substituted as trustee by the first codicil to the will. The trusts created by this clause were to provide an income for his wife, Katherine E. Howell, of $15,000 per annum, during her widowhood and for the support and education of his child or children, with a further provision that if his widow should remarry her income should be reduced to the sum of $6,000. The will further provided for the payments over to the testator's children upon their attaining a certain age, and that in case all of the testator's children should die under the age of 20 years, without leaving issue living at the time of his or her death, then the residue should be divided between the two granddaughters already named and the testator's brothers and sisters, and their heirs, executors, and administrators in such shares as his widow, Katherine E. Howell, should appoint by her will, and, in the event of the failure of his widow to exercise such testamentary power of appointment, then for division, one half to the two granddaughters, and the other half to his brothers and sisters in equal shares, and to their heirs, executors, and administrators.
In 1895 the Safe Deposit & Trust Company, the trustee under the will, and Katherine E. Howell, the widow, filed the bill of complaint in this case, in which there were made as parties defendants all persons then in esse who had, or who might have or be entitled to, an interest under the terms of Mr. Howell's will, and who then numbered approximately 100 persons, many of them nonresidents. The bill was manifestly intended to be filed under the act of 1868, for it alleges that the relief sought will be to the interest, benefit, and advantage of all persons concerned, and further alleges "that there is no power vested in said trustee to dispose of any of said property other than the property on Charles Street avenue and only that property in the manner and on the terms mentioned in his will." The relief prayed in the bill was that the court should assume general jurisdiction over the administration of the trusts created by said will, and of all the estate of the testator, and that a decree might be passed for the sale or lease of the property or such parts thereof as the court may decree to be sold and at such times and upon such terms as the court might from time to time direct; that a certain exchange with Blanchard Randall for the straightening of lines be ratified, and for general relief. The case proceeded to decree, which was passed on the 24th of February, 1896, and by which, in consonance with the relief prayed in the bill, the circuit court No. 2 of Baltimore City assumed "general jurisdiction over the administration of the trusts under the last will and testament of Darius C. Howell, late of Baltimore county, deceased, and the codicils thereto, and of all the property and estate of said testator," and decreed that the trustee should thereafter administer the trusts created by said will under the direction of the court. It also contained the following clause: "And it is further adjudged, ordered, and decreed that all the property and estate of said testator be sold or leased in such parts and in such manner and at such times as the Safe Deposit & Trust Company of Baltimore, which is hereby appointed trustee to make said sales or leases, may deem most advantageous to the persons beneficially entitled, but subject to the ratification and approval of this court."
About fifteen years elapsed from the passage of this decree until the report of the sale which gives rise to this appeal, and it is now contended by the appellant that the circuit court was without power to pass such a decree as it did, and reliance is placed upon the decision of this court in the case of Ball v. Safe Deposit & Trust Co., 92 Md. 503, 48 A. 155, 52 L. R. A. 403. In that case a decree was held to be objectionable which authorized sales to be made from time to time, upon applications to be thereafter made to the court as occasions might arise, and whenever it should appear to the court that such sales would be advantageous, for the reason that to conform with the statute the advantage must appear to exist at the date of the decree.
That in this case it was not so beneficial at the time when the decree was passed is a legitimate inference from the fact that the trustee allowed 15 years to pass after the date of the decree, before the sale now in question was reported, and so far as that decree was predicated upon the Act of 1868, c 273, it was open...
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