Second Nat. Bank v. Second Nat. Bank

• Decision Date: 10 February 1937
• Docket Number: 85.
• Citation: 190 A. 215,171 Md. 547
• Parties: SECOND NAT. BANK OF WASHINGTON, D. C., ET AL. v. SECOND NAT. BANK OF WASHINGTON, D. C., ET AL.
• Court: Maryland Court of Appeals

190 A. 215

171 Md. 547

SECOND NAT. BANK OF WASHINGTON, D. C., ET AL. v. SECOND NAT. BANK OF WASHINGTON, D. C., ET AL.

No. 85.

Court of Appeals of Maryland

February 10, 1937

Appeal from Circuit Court, Prince George's County; Walter J Mitchell, Judge.

Suit by the Second National Bank of Washington, D. C., and another executor of Orwin E. Howe, deceased, against the Second National Bank of Washington, D. C., and another, trustees and others, by which the executors sought the court to assume jurisdiction of a trust created by a will, and to declare void or valid the deceased's bequest for a certain purpose. From a decree sustaining the will, the plaintiffs and defendants, excepting defendant trustees, appeal.

Affirmed.

Argued before OFFUTT, PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.

T Howard Duckett and Edward F. Colladay, both of Washington, D. C. (Stephen F. Colladay, David C. Colladay, and Colladay, McGarraghy, Colladay & Wallace, all of Washington, D. C., on the brief), for appellants.

H. L. McCormick, of Washington, D. C. (Louis B. Arnold and Mabel Benson Sakis, both of Washington, D. C., on the brief), for appellees.

SLOAN Judge.

All parties to this case, except the trustees, appealed from the decree construing a will which undertook to provide for the establishment and maintenance of a charitable institution in Prince George's county. Dr. Orwin E. Howe, a resident of Washington, D. C., died November 6, 1935, leaving a will executed August 15, 1924, by which he appointed the Second National Bank of Washington, D. C., and his wife, Minta G. Howe, executors, and also appointed them trustees to hold and manage the estate until the expiration of the life estates created by the will, with remainder, after the payment of $5,000 to the Baptist Home for Children, of the District of Columbia, to a corporation to be formed to be known as "Dr. O. E. Howe Home for Unfortunate Girls." The estate, according to the bill of complaint, consisted of two farms in Prince George's county, four farms in Worcester county, and several properties in the District of Columbia, assessed in the aggregate at $92,612, and personal property estimated to be worth $175,000.

The executors filed their bill of complaint in Prince George's county praying the circuit court of that county (1) to assume jurisdiction of the trust created by the will, (2) to declare void or valid the bequest for the purpose of founding the "Dr. O. E. Howe Home for Unfortunate Girls," and to declare how the plaintiffs shall make distribution of the estate, so far as the same may be controlled by the laws of the state of Maryland, and (3) general relief. The defendants named in the bill of complaint are the Second National Bank of Washington, D. C., and Minta G. Howe, trustees, and Percy L. Howe and Charles E. Howe, sons, and Dora Ida Hays, daughter, heirs at law and next of kin of the testator, and cestui que trustent under the will. The trustees each filed a noncommittal answer, but the other defendants assailed the provision for the establishment of the home, and prayed that it be declared void. There was no one in court speaking for the will; it had no friends. Aside from the devise and bequest for the Home, the validity of the will was not questioned. The case was submitted on bill and answers, and from a decree sustaining the will, the plaintiffs and the sons and daughter of Dr. Howe appeal.

As all with which we are concerned is the item of the will providing for the establishment and conduct of the "Dr. O. E. Howe Home for Unfortunate Girls," it is necessary to quote that item, which is:

"All of the balance of my said estate, including my farm in Prince Georges County, Maryland, on the river front, held in trust as aforesaid, shall be paid over, and delivered to, a corporation to be formed to be known as 'Dr. O. E. Howe Home for Unfortunate Girls.' The incorporators of said corporation, who shall also act as its first Board of Trustees, shall be nine (9) in number, with power in said incorporators and the said Board to increase the number as may be necessary to comply with the existing law. The said original Board and the said Trustees shall be nominated by my wife and children within a period of one (1) year after my death. In the event, during the lifetimes of my wife and/or any of my children, any of such nominees shall die, then my wife and/or my surviving children shall nominate such other person or persons in place of such deceased nominees, to the end that at the death of the last survivor the said nominees shall consist of nine in number. If, however, there should be a lesser number, by failure to nominate in place of the deceased nominees, then the said persons nominated then living shall name such additional persons to constitute the said nine incorporators and trustees. And the said Board of Trustees, after the formation of said corporation, shall take the legal title to all of my real estate held in trust, as aforesaid, and all of the personal property held in trust, as aforesaid, for the purpose of building on the said farm in Prince Georges County, Maryland, a suitable building as a home for unfortunate girls, to be known as 'Dr. O. E. Howe Home for Unfortunate Girls.' And the amount that may be required for the building and furnishing of said Home shall by said Trustees be paid from the said trust fund received by said corporation, in trust as aforesaid; and the balance of my estate remaining shall be held as an endowment fund, the interest of which shall be used by the said corporation for the maintenance and support of said institution. The term of office of said trustees, and the method of election of trustees from time to time, and the rules and regulations regarding the admission of unfortunate girls, and the maintenance and conduct of said institution, and the full scope and object thereof, shall be formulated, set forth in legal form, and signed, by my said wife and my children and by the Trust Officer of the Second National Bank, who are hereby authorized and empowered to fully execute my desires and wishes in this regard, all of which shall be binding upon the said corporation, and only changed by the unanimous vote of the Board of Trustees."

Mrs. Howe renounced the bequest in trust for her, and elected to take under the law. The distribution to her out of the personal property will be under the law of the District of Columbia, and out of the real estate, she will take as an heir, a one undivided one-third interest in accordance with sections 1, 2, and 3, article 46, and section 126, article 93, of the Code, unless she elected within six months of her husband's death to take the common-law dower. Code, art. 46, § 4. A copy of the renunciation or election, as the case may be, is not in the record, so that we cannot say definitely what interest she takes in the real estate of the decedent in this state. The result of the renunciation, however, will be to increase the income of the other life tenants named in the will, and to reduce the corpus of the estate, but will not divert the remainder from its course of distribution. Johnson v. Stringer, 158 Md. 315, 148 A. 447; In re Disston's Estate. 257 Pa. 537, 101 A. 804, L.R.A.1918B, 62.

It is evident that the gift which the testator undertook to make would be void for the uncertainty and indefiniteness of the beneficiaries unless it comes within the scope of the Act of 1888, c. 249, as amended by the Act of 1924, c. 335, Code art. 93, § 337 (Dashiell v. Attorney General, 5 Har. & J. 392, 9 Am.Dec. 572; Id., 6 Har. & J. 1; Wilderman v. Mayor, etc., of Baltimore, 8 Md. 551; Needles v. Martin, 33 Md. 609; Church Extension v. Smith, 56 Md. 362, 397; Isaac v. Emory, 64 Md. 333, 1 A. 713; Maught v. Getzendanner, 65 Md. 527, 5 A. 471, 57 Am.Rep. 352), or unless the means provided for the incorporation of the charity comes within the provisions of that act (Chase v. Stockett, 72 Md. 235, 19 A. 761; Yingling v. Miller, 77 Md. 104, 26 A. 491; Gray v. Peter Gray Orphans' Home, 128 Md. 592, 98 A. 202). The statute mentioned, Act of 1924, c. 335 is: "No devise or bequest of real or personal property for any charitable uses shall be deemed or held to be void by reason of any uncertainty with respect to the donees thereof, provided the will or codicil making the same shall also contain directions for the formation of a corporation to take the same, and within the period of twelve calendar months from the grant of probate of such will or codicil, if the devise or bequest is immediate and not subject to a life estate or at any time between the date of probate of the will or codicil and the end of the twelve months next following the expiration of the life estate or life estates, if the devise or bequest is to take effect in possession after the expiration of a life estate or life estates, a corporation shall be formed in correspondence with such directions, capable and willing to receive and administer such devise or bequest." The matter of compliance with the provisions of this statute in the plan of the will for the formation of a corporation to take title to the corpus of the trust estate at the expiration of the life tenancies is necessarily important in the decision of this case. In this connection the chief reliance of all parties is the case of Yingling v. Miller, 77 Md. 104, 105, 26 A. 491, 492. In that case, Henry Tasto had devised to his daughter, Margaret Yingling, a farm for life, "upon the condition that she pay to the trustees (or church council) of the Emmanuel Lutheran Church in Manchester, Carroll county, the sum of three hundred dollars, * * * in trust for the express use and benefit of the needy poor of said church or congregation." What this court there in effect said was that while the Act...