Travers v. Wallace
| Decision Date | 12 June 1901 |
| Citation | 49 A. 415,93 Md. 507 |
| Parties | TRAVERS v. WALLACE et al. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Dorchester county; Henry Lloyd, Judge.
Suit by Levi D. Travers, as trustee, against James Wallace and another, as executors of the estate of Annie E. Wallace, and others, for an accounting. From a decree in favor of the defendants, plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, FOWLER, BOYD, PEARCE, and SCHMUCKER, JJ.
John P Poe and S.T. Milbourne, for appellants.
Clement Sullivane and Geo. R. Gaither, for appellee.
In 1843 Hooper Rawleigh executed a last will and testament, which was admitted to probate in 1846. By the fifth item of the will the following provision was made: "I give and devise unto my daughter Sarah Hooper and her mother, Eliza, to my daughter two-thirds and her mother one-third, during her widowhood or their natural life, and then to the heirs of my daughter Sarah Hooper lawfully begotten of her body, and, for want of such issue living at the time of my said daughter's death, then to go to William H.H. and Susannah Rawleigh, her brother and sister, the following lands subject to an annuity of thirty-five dollars, hereafter mentioned: All that part and parcel," etc. During her minority Sarah Rawleigh married John L. Thomas. Later on a son was born, and was named Herman L. Thomas. In October 1854, John L. Thomas, as next friend of Sarah Rawleigh Thomas, his wife, who was still under 21 years of age, filed a bill on the equity side of the circuit court for Dorchester county against Sarah R. Thomas, Herman L. Thomas, their infant son, and William H.H. Rawleigh and Susannah Rawleigh, who were also infants, but Eliza Rawleigh, the widow of the testator, was not made a party to the proceeding. In this bill it was averred that two-thirds of the land mentioned in the fifth item of Hooper Rawleigh's will had been devised to Sarah Rawleigh (then Sarah Rawleigh Thomas) during her natural life, "and then in fee to her issue living at the time of her death, and, for want of an issue so living at the time of her death, then to William H.H. Rawleigh and Susannah Rawleigh, as by reference to said last will and testament will more fully appear, and the same is herewith exhibited, and prayed may be considered as a part of the bill." The bill then charged that it would be for the interest and advantage of all the parties to the suit that the "real estate be sold, and the fund arising from the sale thereof be invested in some more productive fund, and divided among the parties interested, in due proportion of law." A decree was in due course signed, ordering a sale, and Col. James Wallace was appointed trustee to make the sale. In December, 1854, and in March, 1855, Col. Wallace made sales of the lands, and subsequently reported the sales to the court, and the report was thereafter finally ratified and confirmed in July of the year last named. Later on the auditor stated two accounts. In one he allowed Sarah Rawleigh Thomas a certain proportion of the proceeds of sale on the theory that she had only a life estate in the lands under the will of her father, and the balance of the proceeds he audited to Herman L. Thomas, the infant son of Mrs. Thomas, and to such other issue of Sarah Thomas as might be living at her death, and, if no issue were then living, then to William H.H. and Susannah Rawleigh. In the other account the auditor distributed to Sarah Thomas the entire net proceeds of the sales, subject to the payment of an annuity of $12.50 per annum to Susannah Rawleigh, and subject, also, to the contingencies provided for in Hooper Rawleigh's will. This latter account was ultimately ratified and confirmed, and in the order of ratification the trustee, Col. Wallace, was directed to invest in mortgage or on judgment the funds awarded to Sarah Thomas, "for the use of the parties, to abide the contingencies mentioned in the will of Hooper Rawleigh, and to pay over to her during her life the interest of the said fund annually, as the same shall accrue." In execution of this direction the trustee, on the 18th of March, 1856, "advanced and let out to" John L. Thomas and Sarah Thomas the whole of the net proceeds of sale, and took from them a mortgage to secure the repayment of the fund, in the event of its becoming repayable under any of the contingencies mentioned in the fifth clause of Hooper Rawleigh's will. In 1858, Mrs. Thomas bought out the supposed contingent interest of her sister Susannah, and this fact was reported to the court by the trustee. Thereupon--that is, on December 24, 1858--an order was passed directing the trustee to release the mortgage of March 18th, and to pay over to Sarah Thomas, free from all contingency, one half of the fund secured by said mortgage, and to invest the other half in some mortgage or judgment binding upon real estate, "to abide the contingencies provided in the last will and testament of Hooper Rawleigh and the future order of (the) court, and pay over annually to said Sarah during her natural life the interest of the residue of said fund as the same shall accrue." When this order was passed Mrs. Thomas was in the possession of the whole of the proceeds of the sales, they having been paid over to her in March, 1856, as the recitals in the mortgage of that date distinctly show. Under the authority given by the order of December 24th, the trustee released the mortgage made by Thomas and wife, and took from Eliza Rawleigh a mortgage for one-half of the net proceeds of sale. This mortgage was to be void if the mortgagor, who was the mother of Mrs. Thomas, should pay to Col. Wallace, for the use and benefit of William H.H. Rawleigh, the sum named therein, in the event of Mrs. Thomas dying without issue. This was the last step taken in the case until 1899. Mrs. Thomas died in January, 1888. Eliza Rawleigh, widow of Hooper Rawleigh, died in April, 1866, and Col. Wallace, the trustee, died in February, 1887. On January 24, 1899, Herman L. Thomas, the son of Sarah Thomas, and several other persons who are the children of a deceased daughter of Mrs. Thomas, filed a petition in the original equity case, wherein, 45 years before, Col. Wallace had been appointed trustee, and in that petition the death of Sarah Thomas and of Col. Wallace was stated, and the appointment of a new trustee was asked for. In September, 1899, the appellant, who had been appointed trustee in the place of Col. Wallace, as requested in the petition just referred to, filed the bill now before us, and filed it against the heirs at law and legatees of Col. Wallace. In the bill it was alleged that Col. Wallace had failed to administer the trust, and his heirs at law and legatees were called on to account to the new trustee for the funds which had gone into the hands of Col. Wallace upon the sale by him in 1854-55, of the real estate heretofore mentioned. The defendants demurred to the bill. The circuit court for Dorchester county sustained the demurrer and dismissed the bill, and from that decree the pending appeal was taken by the new trustee.
There are two alternative grounds upon which relief is sought in this proceeding by the new trustee against the heirs and legatees of Col. Wallace. One is that Mrs. Thomas took merely a life estate...
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