Smith v. State

• Decision Date: 14 May 1919
• Docket Number: No. 29.,29.
• Citation: 107 A. 255
• Parties: SMITH et al. v. STATE.
• Court: Maryland Court of Appeals

107 A. 255

SMITH et al.

v. STATE.

No. 29.

Court of Appeals of Maryland.

May 14, 1919.

Appeal from Circuit Court of Baltimore City; John J. Dobler, Judge. "To be officially reported."

Action by the State of Maryland against J. Maulsby Smith and George A. Fleming, trustees, and J. Maulsby Smith, executor of Ada B. V. Dickson, deceased. From decree for the State, defendants appeal. Affirmed.

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

Charles McH. Howard and John B. Deming, both of Baltimore (Whitelock, Deming & Kemp, Thomas A. Murray, and Randolph Barton, Jr., all of Baltimore, on the brief), for appellants.

Ogle Marbury, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for the State.

STOCKBRIDGE, J. Two questions are involved in this appeal, one of which is of considerable importance and in regard to which no direct authority exists among the previous decisions of this court. Decisions elsewhere, based upon the phraseology of statutes adopted in the several states, throw but little light upon the questions, dependent as they are upon the language of the statutes adopted in each state. The facts out of which this case arises may be stated as follows:

On the 18th of November, 1915, Mrs. Ada B. V. Dickson executed a deed of trust to J. Maulsby Smith and George A. Fleming, trustees, which deed declared trusts as follows:

"Now, therefore, this deed witnesseth that in consideration of the premises and of the sum of one dollar, the receipt of which is hereby acknowledged, the said Ada B. V. Dickson does hereby grant, assign, transfer and convey unto the said J. Maulsby Smith and George A. Fleming, trustees, and the survivor of them, ana the heirs and personal representatives of the survivor and their assigns, all of her estate and property, real, personal and mixed, of every kind and description and wherever located (saving and excepting only from the operation of this deed her clothing, jewelry and strictly personal effects).

"To have and to hold the same nevertheless for the following uses and purposes, and upon the following trusts; that is to say—to hold or invest the same in such manner as to the said trustees shall seem best, and to collect the income from time to time arising therefrom, and after paying out of such income all proper expenses and charges including the costs of administration of the trust and reasonable commissions to themselves, the said trustees to pay over the net income at regular stated periods in each year to the said Ada B. V. Dickson so long as she shall live, and at her death then in trust to divide the corpus or principal of the trust fund and property as then constituted among such persons and in such proportions as she, the said Ada B. V. Dickson, shall by last will and testament direct and appoint; but if she die without having exercised the power of testamentary appointment, then at her death in trust to divide the said corpus or principal among such persons as would by the then existing laws of the state of Maryland be entitled thereto as heirs at law and next of kin. * * * In order to facilitate the management of the trust estate the said Ada B. V. Dickson does hereby grant to and confer upon the said trustees full power and authority in their discretion from time to time to sell, mortgage, lease, dispose of, assign or convey absolutely or otherwise the whole or any portion or portions of the property and estate conveyed to them in trust, and in the event of any such disposition of any portion thereof by the trustees in pursuance of the powers hereby conferred upon them, the proceeds of all such sales or other dispositions of any of the trust property shall be reinvested by them in such manner as they shall deem best, and shall be held by them or their successors, if any such there shall be, on the same trusts and for similar uses and with like powers in relation thereto as the property and estate so held and disposed of had been theretofore held. And the said Ada B. V. Dickson does hereby likewise confer upon said trustees full power and authority in their discretion to sell any portion of the trust property for the purpose of making any division required by the provisions of this deed and does likewise authorize and empower them to make any division in kind of the trust estate or any part thereof which may be requisite to carry into effect the provisions hereof. And she does hereby authorize and empower such trustees to execute, acknowledge and deliver all conveyances or instruments of writing which may be necessary to execute fully the powers conferred upon them, and does declare that purchasers from them shall not be liable to see to the application of the purchase money. And it is further hereby expressly declared that all powers conferred upon said trustees shall be exercisable to their full extent by their successors in the trust, if any such there shall be, but the said Ada B. V. Dickson hereby expressly directs the said trustees to administer the trusts of this deed under the supervision of one of the courts of equity in the city of Baltimore, and in the event that either of said trustees shall die or retire from the trusteeship, she authorizes and directs such court to appoint a new trustee in his room and stead to the end that there may always be two active trustees in the trusteeship, it being the intention of these presents that there shall not at any time be a sole trustee of the trusts hereby created. But it is hereby declared to be one of the express conditions of this deed upon which it is executed and delivered that the said Ada B. V. Dickson may at any time after the expiration of one year from the date hereof revoke the same and absolutely terminate the trusts hereby created, and power so to do is hereby expressly reserved to her, such revocation to be evidenced by a deed to be signed and acknowledged by...