Rosser v. Prem

• Decision Date: 03 September 1982
• Docket Number: No. 1364,1364
• Citation: 52 Md.App. 367,449 A.2d 461
• Parties: , 34 A.L.R.4th 403 Thomas E. ROSSER, Trustee v. Robert C. PREM, Special Administrator of the Estate of Eleanor B. Wasserman.
• Court: Court of Special Appeals of Maryland

Page 367

52 Md.App. 367

449 A.2d 461, 34 A.L.R.4th 403

Thomas E. ROSSER, Trustee v. Robert C. PREM, Special Administrator of the Estate of Eleanor B. Wasserman.

No. 1364.

Court of Special Appeals of Maryland.

Sept. 3, 1982.

Eugene A. Alexander, III, Baltimore, for appellant.

Robert C. Prem, pro se, with whom was Leonard A. Orman, Baltimore, on the brief, for appellee.

Argued before MOORE, WEANT and BISHOP, JJ.

MOORE, Judge.

"Put not your trust in money but put your money in trust."

Oliver Wendell Holmes, "The Autocrat of the

Breakfast Table" (1858)

The first question in this appeal is whether the trust that Eleanor B. Wasserman sought to create in her will is a valid charitable trust. Because our answer is affirmative, we need not consider the second question--whether the doctrine of cy pres, Md.Est. & Trusts Code Ann. § 14-302 (1974), would apply. Our decision requires reversal of the decree of the Circuit Court for Baltimore County (Brizendine, J.) and means that two thirds of Mrs. Wasserman's estate will be used to publish and disseminate her book entitled, "Linda," which concerns her only daughter who died of cancer at the age of eight in 1950. ¹

I

Mrs. Wasserman died in December 1978, five years after her husband, Earl B. Wasserman, who had left her all of his estate. Her will, whose validity is not at issue, was dated October 11, 1971, 21 years after her daughter's death. Prepared by attorney Thomas J. Grogan, Jr., it bequeathed one third of her estate to her husband, ² specific items to relatives, ³ and the rest, residue and remainder to three named trustees ⁴ who were directed to:

"[A]pply the net income therefrom and whatever portion of the corpus of this trust estate which may be required to preserve and protect the manuscript and illustrations and copyrights of my book entitled 'Linda', and in their discretion insofar as said Trustees find this procedure practicable to have said book widely published in expanded and revised form, if this should be helpful, in as many editions as may be deemed necessary and to have the material used in whatever form and by whatever method it appears to them to be most feasible.

"It is my wish and desire that the entire corpus of this trust estate, together with any accumulated income therefrom be used by my said Trustees to carry out the above trust with respect to my said book entitled 'Linda' and the second edition thereof, which I am about to publish.

"If I shall die before I publish the second edition, I authorize my Executors to employ some Christian Writers to complete the work." (Emphasis added.)

Following his appointment as personal representative, Mr. Grogan, now deceased, sought a declaratory judgment, pursuant to Md.Cts. & Jud.Proc.Code Ann. §§ 3-406 and 3-408 (1980 Repl.Vol.) and Md.Est. & Trusts Code Ann. § 14-301(a) (1974), requesting the court to instruct him as to whether the will created a valid trust. Thomas E. Rosser, trustee and appellant here, filed an answer, averring that the trust was valid. At a hearing before a master on August 11, 1980, "Linda," a bound, copyrighted, and illustrated volume of 102 pages, was admitted into evidence, along with letters from two experts, Carol Abromaitis, an associate professor of English at Loyola College, Baltimore, and Eleanor Merryman Rossel, an author's representative. The former testified that the book "Linda" was "without aesthetic merit," being structurally flawed by "a mishandling of point of view" and stylistically flawed by "grammatical errors." Ms. Rossel passed on the book's "publishability," concluding that "Linda" had "no ready-made audience and therefore no marketability." Mr. Grogan, the author of the will, testified that had he seen a copy of the book before drawing up the will, he would have tried to discourage Mrs. Wasserman. His assessment of "Linda" was: "ungodly bad." ⁵

The master concluded that Mrs. Wasserman's will did not create a valid trust, stating in his memorandum opinion: "The book 'Linda' sets forth no doctrine. It advocates nothing. It promotes no matter of special interest to the community. It certainly is not a literary gem."

Appellant excepted, but before the circuit court hearing, Mr. Grogan died. He was replaced by Robert C. Prem, appellee here. On October 8, 1981, the circuit court determined that the trust was invalid on two grounds: first, as a private trust, it lacked ascertainable beneficiaries; ⁶ second as a charitable trust, it lacked the necessary elements. ⁷ As a result, the net residuary estate was ordered distributed to the heirs at law. This appeal followed.

II

Charitable trusts in Maryland have attracted little appellate attention in recent years although the legacy of cases prior to the adoption of § 14-301 et seq. in 1974 is ample. ⁸ In 1888, the legislature enacted a statute that no bequest for charitable uses would be void for uncertainty of beneficiaries, provided a corporation existed to take the same. See Md.Ann.Code Art. 93, § 357 (1957). The statute was amended in 1908 to remove the bar of perpetuities from charitable trusts, but not until 1931 were the principles of the statute of 43 Elizabeth Ch. 4 (1601) formally adopted in this State. Code, supra, Art. 16, § 268A (1935 Supp.). See Howard, C., "Charitable Trusts in Maryland," 1 Md.L.Rev. 105 (1937).

As the Court of Appeals noted in Second National Bank v. Second National Bank, 171 Md. 547, 556-7, 190 A. 215, 219 (1937), this statute, which is the predecessor of § 14-301, did not mark the beginning of charitable trusts in Maryland, for courts of equity had exercised jurisdiction over charitable trusts from antiquity. Many, of course, had failed for uncertainty or perpetuities, see cases collected in Howard, supra, [449 A.2d 465] n.36 at 117. These trusts would be valid and enforceable under Art. 16, § 268A. The court pointed out that courts in states with the statute have upheld as charities many objects of benevolence which the statute neither mentions nor implies. Similarly in this State, a trust to establish a home for "unfortunate girls" was held to be charitable, Second National, supra, and more recently, Register of Wills v. Cook, 241 Md. 264, 216 A.2d 542 (1966), held that a trust to help further the passage of the Equal Rights Amendment and assist women suffering from the effects of sexual discrimination in the laws of Maryland and the United States was essentially charitable in nature, "[w]hatever may be the views of individuals, laymen or judges...." Id. at 278, 216 A.2d 542. Because we have found no Maryland case concerning a charitable trust to publish a book, we begin our analysis on common ground with the appellant and appellee concerning the definition:

"A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose."

Restatement (Second) of Trusts § 348 at 210 (1959). Both sides also agree that § 368 of the Restatement sets forth the permitted charitable purposes:

(a) the relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

(d) the promotion of health;

(e) governmental or municipal purposes;

(f) other purposes the accomplishment of which is beneficial to the community.

Restatement, supra, § 368 at 246. These purposes, derived from the Statute of Elizabeth, supra, were broadened in § 14-301(b) to include "purposes within either the spirit or letter" of the venerable statute. ⁹ It is likewise undisputed that a charitable trust can be created without a definite or definitely ascertainable beneficiary designated, Restatement, supra, § 364 at 243, and is not invalid although continuing for an indefinite or unlimited period, id., § 365 at 244; § 14-301(c).

Appellant argues that the trust created by Mrs. Wasserman qualifies as a charitable trust on two grounds: first, it would advance education through "the dissemination of knowledge or of beliefs by the publication of books and pamphlets...," Restatement, supra, comment a to § 370 at 251; second, it would advance religion by disseminating "religious beliefs or doctrines; ..." id., comment a to § 371 at 254.

Appellee states that "publication of the book 'Linda' falls short of a charitable purpose" because it is of little or no value to the community in advancing either education or religion. The test, according to appellee, is stated by Professor Bogert: "[I]f the court comes to the conclusion that it would be irrational to regard the trust as bringing about any public benefits, but rather that the trust would be useless to society, the court will hold the trust noncharitable...." Bogert, Trusts and Trustees § 368 at 58 (2d ed.rev.1977). Appellee relies on the Restatement's no-nonsense comment m to § 374 that "a trust to publish and distribute the writings of the testator is not enforceable if his writings are of no value." Restatement, supra, at 262.

Professor Scott echoes this flat prohibition: "A trust to publish worthless writings is not valid, either as a charitable trust or as a private trust." II Scott on Trusts § 124 at 963-4 (3d.ed.1967), citing, Fidelity Title & Trust Co. v. Clyde, 143 Conn. 247, 121 A.2d 625 (1956). Professor Bogert, whom appellee quotes extensively, is somewhat scathing in his view of "educational trusts [that] seek to propagate eccentric ideas," producing no substantial advantages to society, Bogert, supra, § 375 at 134, and whimsical or irrational trusts, made out of mere sentiment, that have no practical effect except to satisfy the whim of the testator and waste the assets of the estate. Id., § 379 at 204. ¹⁰

Appellee's position seeks to put this Court in the unaccustomed role of literary critic, but before we review the lower court's decision that the book "Linda" "wasn't much good" and therefore failed as a charitable trust, ¹¹ w...