JONES
J.
This
appeal is from a decree of the circuit court No. 2 of
Baltimore city, construing the will of Melissa Baker, late of
said city. The record shows that the testatrix died in March,
1899, leaving a considerable estate, and a will with two
codicils, in which she made a number of bequests and devises,
many of which are free from doubt, and have created no
difficulty in giving effect thereto in the course of
administration of the estate. Some of them, however, have
given rise to doubts as to their proper construction and
legal effect, and this case was instituted by the executors
of the will for the
purpose of having these construed, and to have their trust
administered under the direction of the court.
The
provisions of the will and codicils which were adjudicated
below, and about which question is made in this court, read
as follows:
In the
original will: "Item 18. I give and bequeath to the
Women's College, located at the city of Lynchburg, in the
state of Virginia, the sum of eight hundred dollars, for the
education of one or more worthy girls. Item 19. I give and
bequeath to George B. Baker the sum of three thousand
dollars, in trust and confidence that he will distribute and
pay over said sum among and to persons and charitable
institutions, the names of which, and the portions to be paid
to each beneficiary, will appear in a memorandum which will
be hereafter prepared by me or at my request. And any part of
said sum not disposed of shall be distributed by said trustee
among worthy persons and charitable institutions, in
accordance with views which I have expressed to said George
B. Baker."
In the
first codicil: "Whereas, by the nineteenth item I have
devised and bequeathed in trust to George B. Baker, to be
distributed to persons or charities, to be named in
memorandum to be hereafter given, if not given, or any
surplus to be distributed by him, at his discretion, to
worthy persons or charities, in accordance with my views as
expressed to him, the sum of three thousand dollars, I do
hereby increase the said amount three thousand dollars,
making the amount under this item six thousand dollars."
In the
second codicil: "Item 9. I give, devise, and bequeath to
the trustees of the Randolph Macon College, a corporation
organized under the laws of the state of Virginia, four
thousand two hundred dollars, to be applied to aid deserving
and promising young women, especially such as expect to enter
upon mission work, to attend the Randolph Macon Woman's
College at Lynchburg as students; such aid to be either by
loans or free scholarships, as said trustees may deem best.
The receipt of the treasurer of the said board of trustees
shall be a complete discharge of my executors for the same.
Item 10. I give and bequeath to the trustees of the
corporation of Trinity Methodist Episcopal Church South,
corner of Madison avenue and Preston street, Baltimore, three
thousand five hundred dollars, to be invested in safe
securities, and the annual income applied as follows: As to
two thousand dollars thereof, to the support of the pastor of
said church; as to six hundred dollars thereof, to be paid to
the Trinity Auxiliary of the Women's Foreign Missionary
Society of the Methodist Episcopal Church South, to be
included in the receipts of the said society, and remitted to
the treasurer of the Baltimore Conference Society of the
Women's Foreign Missionary Society of the Methodist
Episcopal Church South, for the general fund, including five
dollars of the same for the conference contingent fund; as to
five hundred dollars thereof, to be paid towards the support
of the superannuated preachers, their widows and orphans, of
the Baltimore Conference of the Methodist Episcopal Church
South; and as to the remainder, four hundred dollars, to be
given to the infant class of the Sunday school of said
church, to be contributed by said class for the support of a
little girl in one of the schools under the care of the
Women's Foreign Missionary Society of the Methodist
Episcopal Church South." "Item 13. I give, devise,
and bequeath to E. B. Prettyman, Wm. W. Smith, and George B.
Baker the homestead property, known as 'Friendsbury'
(with the request that the name of 'Friendsbury Home'
be applied to the same), on which I now reside, consisting of
one entire block, with the buildings thereon, bounded by
Baker, Monroe, and Presbury streets and Friendsbury Place,
according to the map hereto attached, and made a part of this
instrument, in trust, as follows: If, at the time of the
probate of my will, the Women's Parsonage and Home
Mission Society of the Methodist Episcopal Church South shall
have become a body corporate, capable in law to receive
devises, bequests, and gifts, and if within two years
thereafter said society, so incorporated, shall have raised
or provided a sum of not less that ten thousand dollars as an
endowment fund for city mission work, and shall agree to
conduct such work in the city of Baltimore, and to apply the
proceeds of said fund to that work in said city, and shall
further agree to accept the said homestead property hereby
devised, and use the same as center of operations in the work
of said society in the city of Baltimore, then said trustees
shall convey said homestead property to said Women's
Parsonage and Home Mission Society of the Methodist Episcopal
Church South, to hold to the use thereof so long as said
society shall continue to use said property for said
purposes, with full authority to erect buildings thereon for
mission meetings, lodgings, orphanage, or any purpose
connected with mission work, but without power to sell or
alienate said land or any part thereof. And if said
Women's Parsonage and Home Mission Society of the
Methodist Episcopal Church South shall not, within said two
years, comply with the conditions above set forth, then my
said trustees, the survivors or survivor of them, shall have
full power under this codicil to appoint such
duly-incorporated society doing mission work in the city of
Baltimore as they may deem best to receive said devise, and
shall convey said property to them on the terms and
conditions above set forth; but said trustees shall have one
full year after the lapse of said two years from the probate
of my will in which to make said selection and permit the
performance of said conditions. Item 14. I give and bequeath
to E. B. Prettyman, William W. Smith, and George B. Baker,
trustees named in the foregoing item, ten thousand dollars,
in trust to pay over
the same to the Women's Parsonage and Home Missionary
Society of the Methodist Episcopal Church South, if they
shall become incorporated and comply with the requirements of
said item, but, if they shall not, then to be applied by said
trustees as provided in the last clause of said item. Item
15. Should any residuum of my estate remain after gratifying
the foregoing legacies, I give, devise, and bequeath all such
residuum to my nephew George B. Baker, in trust, to be
applied by him under the provisions of the nineteenth item of
my said will."
There
can be but little difficulty in disposing of the questions of
construction here arising as respects some of the clauses
which have been recited. By the provisions contained in the
nineteenth item of the original will and in the first
codicil, together with the residuary disposition in the
fifteenth item of the second codicil, the testatrix
manifestly intended to create a trust, and not to give the
beneficial interest in the property, therein intended to be
bequeathed, to George B. Baker, the person named in these
clauses. The beneficiaries of the trust are to be ascertained
and pointed out by a memorandum to be left by the testatrix,
or at the discretion of the trustee, where or in so far as
the memorandum fails to dispose of the funds intended to be
bequeathed. This brings these provisions directly within the
effect of the decision of this court in regard to a similar
testamentary disposition in the case of Saylor v.
Plaine, 31 Md. 158. In that case the trust was sought to
be supported by the actual production of a memorandum left by
the testator, indicating the purposes to which the subject of
the bequest was to be applied. Here the proof shows there was
no memorandum in existence to direct the application of the
property intended to be dedicated to the trust, nor are any
beneficiaries thereof defined or ascertained in any way,
other than in the way of verbal suggestions to her trustee to
guide his discretion; making the attempted disposition, as
contained in the items of the will and codicil here being
considered, more plainly ineffectual than was the case in the
decision of this court just referred to. These provisions we
regard as too obviously void to require further allusion to
them.
On the
other hand, the provision in the tenth...
