Safe Deposit & Trust Co. of Baltimore v. Ellis

• Decision Date: 06 April 1920
• Docket Number: 45,47.
• Citation: 110 A. 481,136 Md. 334
• Parties: SAFE DEPOSIT & TRUST CO. OF BALTMORE et al. v. ELLIS et ux. SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. WILKENS. WILKENS v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

110 A. 481

136 Md. 334

SAFE DEPOSIT & TRUST CO. OF BALTMORE et al. v. ELLIS et ux.

SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. WILKENS.

WILKENS v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.

Nos. 45, 47.

Court of Appeals of Maryland

April 6, 1920

Appeals from Baltimore City Court; James P. Gorter, Judge.

"To be officially reported."

Three appeals, one by the Safe Deposit & Trust Company of Baltimore, substituted trustee under the will of William Wilkens, deceased, and by Charles Wilkens, life tenant, from an order sustaining exceptions of Edgar Ellis and wife purchasers, to a sale by said substituted trustee, the other two, one each by the substituted trustee and Charles Wilkens Jr., remainderman, from an order as to the amount of income to be paid to the life tenant. First order reversed; second affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, STOCKBRIDGE, and ADKINS, JJ.

Joseph France and Harry N. Baetjer, both of Baltimore (Venable Baetjer & Howard, of Baltimore, on the brief), for Safe Deposit & Trust Co. and others.

John Hinkley, of Baltimore, for Edgar Ellis and wife and Charles Wilkens, Jr.

BRISCOE J.

There are three appeals in the record now before us from the Baltimore city court, and they involve the validity of the appointment of a substituted trustee by the circuit court of Baltimore city under the will of William Wilkens, late of Baltimore county, deceased, and the exercise by this trustee of certain powers conferred by the will upon three trustees named therein; the trusteeship being vacant at the date of the appointment of the sole trustee.

The objections to the exercise of the powers by the sole trustee are: First, that the will provides for not less than two trustees; and, secondly, that the single trustee was appointed by the court, and not by the perpetuating power given by the will to the trustees to name their successors, the will giving the powers only to trustees so appointed.

Mr. Wilkens, the testator, died on the 12th of July, 1879, leaving a last will and testament, which was duly admitted to probate in the orphans' court of Baltimore county on August 12, 1879. By his will he devised and bequeathed a certain portion of his estate in trust for his son, Charles Wilkens, for life, with remainder over upon his death. He appointed three trustees in the will and made the following provision for succession in the trusteeship:

"And I do further provide that, when and so often as a vacancy shall occur in the said trusteeship, by reason of any of the said trustees or their successors dying (whether in my lifetime or after my death), or being unwilling, incompetent or unfit to act, or being desirous of retiring from the office, the trustees or trustee for the time being competent to act, whether intending to continue in the trust or not, shall have power to nominate and appoint, by deed or other writing, a trustee or trustees to supply the vacancy, and thereupon the said trust property, with all the powers aforesaid, shall vest or be vested in the old, jointly with the new trustee or trustees, or in the new trustees solely, as the case may require. Provided, further, that the trustees or trustee for the time being shall have power to add or decrease from time to time the original number of trustees, so as the number be not raised above five or reduced below two; and it is my wish, and I so direct, that the said trustees shall make report annually to the circuit court of Baltimore city or some other court of equity of competent jurisdiction, of their proceedings in execution of the trust hereby reposed in them."

The trustees named in the will or such of their successors as were named or selected to fill vacancies in the manner provided by the will continued to administer the trusts, under the jurisdiction of the court until January 10, 1919, when Gustav A. Schlens, the surviving trustee, resigned, leaving the trusteeship vacant, and the circuit court of Baltimore city appointed the appellant trust company as sole trustee to administer the trusts under the will for the benefit of the testator's son, Charles, for life.

The first appeal, No. 45, is taken by the substituted trustee appointed by the court, and by the life tenant, Charles Wilkens, from an order of the circuit court of Baltimore city, dated the 7th day of January, 1920, sustaining exceptions to a sale of a lot of ground and improvements belonging to the trust estate held by the trustee and sold by it to the appellee purchasers, with the consent and approval of the life tenant, and in pursuance of the power conferred by the will.

The exceptions to the sale, it will be seen, were filed by the purchasers of the property upon the ground: First, that the will required that there be at all times at least two trustees, and that a sole trustee could not act; and, secondly, that the power to sell conferred by the will did not pass to the substituted trustee appointed by order of court.

The circuit court sustained the exceptions to the ratification of the sale made by the trustee, and held that the power to sell, exchange, lease, or accept surrenders of any lands or other property constituting portions of the trust estate devised and bequeathed by the will of William Wilkens in trust for his son, Charles Wilkens, for life, was by the will given to the trustees therein named, and to such successors of the trustees as might be appointed in the manner provided in the will, and that the powers did not pass to and are not vested in the said Safe Deposit & Trust Company of Baltimore, the sole trustee under the will.

We cannot agree to the conclusion reached by the court below on this appeal, or to the construction given by it to that portion of Mr. Wilkens' will here in question.

We are of opinion that the appointment of the Safe Deposit & Trust Company as substituted trustee was a proper and a valid act. At the time of the appointment in this case the trusteeship was entirely vacant, and it is a familiar rule in equity that a trust shall not be allowed to fail for the want of a trustee.

The validity of the appointment of a sole substituted trustee under a will providing "there should always be three trustee" to administer the trusts thereby created has been upheld and sustained by the courts in a number of cases. Jencks v. Safe Deposit & Trust Co., 120 Md. 627, 87 A. 1031; Samuel Ready School v. S.D. & Trust Co., 121 Md. 515, 88 A. 261; Sweet v. Schleimann, 95 A.D. 266, 88 N.Y.S. 916; Sells v. Delgado, 186 Mass. 25, 70 N.E. 1036.

In Lewin on Trusts, p....