Schloendorn v. Schmidt

• Decision Date: 23 February 1911
• Citation: 80 A. 309,115 Md. 74
• Parties: SCHLOENDORN et al. v. SCHMIDT.
• Court: Maryland Court of Appeals

80 A. 309

115 Md. 74

SCHLOENDORN et al. v. SCHMIDT.

Court of Appeals of Maryland

February 23, 1911

Appeal from Circuit Court No. 2 of Baltimore City; Henry Stockbridge, Judge.

Suit by Annie Eugenie Schloendorn and another, trustees, against Charles R. Schmidt, for specific performance. Bill dismissed and plaintiffs appeal. Reversed and remanded.

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

John H Morgan and S. S. Field, for appellants.

Edward M. Hammond, for appellee.

PATTISON J.

In this case the appellants, trustees under the will of Frederick W Schloendorn, filed their bill in circuit court No. 2 of Baltimore city against the appellee, Charles R. Schmidt, in which they alleged that Frederick W. Schloendorn died on the 5th day of March, 1909, seised and possessed of real and personal estate, and leaving a last will and testament duly executed to pass both real and personal property. After providing for the payment of his debts, the testator, by the first item of his will, bequeathed to his brother William Schloendorn and his brother-in-law, Albert B. Faust, the sum of $2,500 in trust, to invest the same in their judgment and discretion for the benefit of his sister Minna Schloendorn, to pay the net income arising from said investments by said trustees half-yearly to his sister Minna Schloendorn during the term of her natural life, and after her death the trust was to cease and the bequest was then to revert to his estate. By the second item of his will he disposed of the rest and residue of his estate as follows:

"All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate or being, I give, devise and bequeath as follows:

"To my beloved wife Anna Eugenie Schloendorn, of the City of Baltimore, State of Maryland, and my brother-in-law, Albert B. Faust, of the City of Ithaca, State of New York, and the survivor of them, in trust and confidence, to invest and re-invest said rest, residue and remainder of my estate, in their judgment and discretion, and to pay the net income therefrom arising, half-yearly to my beloved wife, Anna Eugenie Schloendorn, during the term of her natural life and after her death, to my brother-in-law, Albert B. Faust, in trust and confidence to invest and re-invest said rest, residue and remainder of my estate, in his judgment and discretion, and to pay the net income therefrom arising to my two children, Frederick C. Schloendorn and Elsa E. Schloendorn, share and share alike, half-yearly; at the arrival of my daughter, Elsa E. Schloendorn, at the age of eighteen years, the trust as to her shall cease, and she shall be entitled absolutely, to one-half of said rest, residue and remainder of my estate; and at the arrival of my said son Frederick C. Schloendorn at the age of twenty-one years, the trust as to him shall cease and he shall be entitled absolutely to his one-half of said rest, residue and remainder of my estate."

They further allege that this will was duly probated and recorded in the office of the register of wills for Baltimore city, and that by it the title to the rest and residue of the testator's estate, real and personal, became vested in the plaintiffs, with full and ample power to sell the same or any part thereof. That being so vested with this power, they, by a written agreement with the appellee, Charles R. Schmidt, dated March 26, 1910, agreed to sell to him, and he agreed to buy of them, at and for the sum of $3,000, of which $100 was paid in cash, and by the agreement the balance was to be paid within 60 days thereafter, a certain lot of ground with improvements thereon, being part of the rest and residue of said testator's estate, situated at Mt. Washington, in Baltimore county, Md., and more fully described in the agreement, which was filed with the bill as an exhibit. The bill further alleged that the testator died seised and possessed of this property, and stated how it was acquired by him. They also allege that they had performed all the terms and conditions of the agreement on their part to be performed and were ready and willing, upon the payment of the balance of the purchase money to them with interest thereon, to convey to the defendant the property so sold unto him, and as evidence thereof tendered to him a deed therefor, but he refused to pay the balance of the purchase money and accept the deed so offered him.

The prayer of the bill asks for the specific performance of the agreement, and that a decree be passed requiring the defendant to pay the balance of the purchase money with interest thereon from the 22d day of May, 1910, upon the execution and delivery, by the plaintiff, to the defendant of a deed in fee of the property, mentioned in said agreement, subject to the conditions and restrictions therein specified. The defendant answered the bill, admitting all the allegations therein contained except the one wherein it is alleged that the plaintiffs were vested with the legal title and power of sale of the rest and residue of the testator's estate, of which the lot of land and improvements mentioned in the bill form a part, and allege that the plaintiffs were not able to convey unto him a good and merchantable title in the lands mentioned in the agreement. Upon the submission of the case on bill, answer, and replication, the learned court below held that the will did not give to the plaintiffs, as trustee, the power to sell the real estate mentioned in the bill and agreement therewith filed, and he thus dismissed the bill. It is from this order dismissing the bill that the appeal is taken.

There is but one question presented by this appeal, and that is, Does the will of Frederick W. Schloendorn confer upon the plaintiffs, as trustees named therein, the power to sell the lands mentioned in the bill, the same being a part of the rest and residue of the testator's estate, as described by him in the second item of his will?

"A trustee is seldom justified in selling the trust estate without an express or implied authority conferred upon him by the instrument of trust. No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he cannot perform without a sale, will necessarily create a power of sale in the trustee." 2 Perry on Trusts, §§ 764 and 766; Hill on Trustees, 471. "Although no express power of sale be conferred by the instrument creating the trust, such power will be implied wherever duties are imposed on the trustee which cannot be performed without it, or, in other words, wherever it can be gathered from the instrument that the grantor must have intended that he should have such power, and in such case no previous application to the court is necessary. Thus a power of sale has been implied from a power to 'manage and invest' the estate to the best advantage." 28 Enc. of Law (2d Ed.) 1002-1003. "It is not necessary there should be a specific authority given to the trustee to enable him to sell. If a sale is necessary to the execution of the trust, it will always be inferred that the testator means to give to the person directed or empowered every authority which is necessary for his declared purpose." Hill on Trusts, 471, note 2.

It is contended by the appellee that the power conferred upon the trustees in this case, under the will of Frederick W Schloendorn "to invest and reinvest said rest, residue and remainder of my estate, in their judgment and discretion, and...