Waters v. Waters

• Decision Date: 13 April 1928
• Docket Number: 48.
• Citation: 142 A. 297,155 Md. 146
• Parties: WATERS v. WATERS.
• Court: Maryland Court of Appeals

142 A. 297

155 Md. 146

WATERS v. WATERS.

No. 48.

Court of Appeals of Maryland

April 13, 1928

Rehearing Denied June 22, 1928.

Appeal from Circuit Court, Frederick County; Hammond Urner, Judge.

Suit by Rose L. R. Waters, executrix of the last will and testament of Charles C. Waters, deceased, against John S. Waters and another to construe the will. From an adverse decree, named defendant appeals. Affirmed.

Argued before BOND, C.J., and ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

W Clinton McSherry, of Frederick (William T. Schindler, Jr., of Baltimore, on the brief), for appellant.

Parsons Newman, of Frederick, for appellee.

ADKINS J.

Charles C. Waters, a member of the bar of Frederick county, Md., by his will, dated October 15, 1919, after making provision for the care of his cemetery lot, devised and bequeathed the rest and residue of his estate as follows:

"All the rest, residue and remainder of my estate real personal and mixed I give and bequeath unto my wife for and during her life or widowhood, she to have the interest income and profits therefrom and after her death or remarriage, I give, devise and bequeath all of my estate, real, personal and mixed unto the Order of the Holy Cross, a corporation, to be a memorial to my dear son James Somerset Waters, and to be used by them at Thurmont, Maryland, for such educational and charitable purposes as they may deem proper and under the direction of the bishop of Maryland. My present home and the grounds and other buildings is to be designated as the James Somerset Waters Memorial for religious and charitable purposes, under the direction and control of the Order of the Holy Cross."

The testator died on February 25, 1926, and on July 29, 1927, his executrix, the appellee in this case, filed a bill of complaint, in which she alleged the death of said testator the execution and probate of said will, the granting of letters testamentary to her as executrix, the completion of her administration, except as to the rest and residue of the estate, the incorporation of the Order of the Holy Cross (a certified copy of its charter being filed with the brief) her renunciation of all bequests and devises to her, and her election to take in lieu thereof her legal share of the estate; and then states that there is a question in her mind whether the Order of the Holy Cross, in keeping with its charter powers, can accept the residue of said estate, and asks the court to construe said will for the purpose of determining said question. The bill asks the court to take jurisdiction for this purpose, and prays process against the Order of the Holy Cross and John S. Waters, who appears from the testimony to be the only heir of the testator other than the executrix, his widow.

The answer of John S. Waters neither admits nor denies that the "Order of the Holy Cross" is a New York corporation. It alleges and avers: (1) That said corporation cannot lawfully take and receive the residue of said estate or any part thereof, "for the reason that the object of the devise and bequest is not included in the corporate powers of said corporation; (2) that said will creates a trust which is void because the objects of said trust are uncertain; (3) that said defendant is the brother of the decedent, and the only next of kin and heir at law of said decedent, except the plaintiff in this case, the widow. The answer prays that said residuary clause be declared null and void and of no effect.

In a supplemental answer said defendant alleges and avers "that the devise and bequest to the Order of the Holy Cross is void because there is a Maryland corporation of the same name as the New York corporation described in the bill of complaint," and he files a certified copy of the Maryland charter. In the answer of the Order of the Holy Cross, it says that it believes itself authorized to receive the portion of said estate devised and bequeathed to it, and that it is willing, in obedience to the express desires and wishes of the testator, to accept the same, and designate and use it as a memorial to testator's son. It states its understanding to be, however, that, by reason of the renunciation of the widow, a sale of the real estate will be necessary, so that what will ultimately come into the hands of this respondent by reason of said legacy will be personal estate. In the copy of the certificate of the New York corporation, the incorporators say:

"That we desire to form a society for the purpose hereinafter mentioned, in pursuance of an act of the Legislature of the state of New York entitled, 'An act for the incorporation of benevolent, charitable, scientific and missionary societies' passed April 12, A. D. 1848, and amendments thereto, and do hereby declare:

First: The name by which the society is to be known is 'The Order of the Holy Cross.'

Second: The objects for which the society is formed are missionary work among the poor, the improvement of the social condition of poor children, mutual religious improvement, the training of clergy and other missionary work, and the purchase, rental or acquisition of such real estate, or the erection of such buildings as are necessary for the above mentioned purposes, and the principal place for conducting the business of the Society is to be its Clergy House in the city of New York.

(Note--The place of conducting the business has been changed to West Park, New York, where the monastery now stands.)"

The third clause gives the number of directors and managers and the names of those who are to act for the first year. The certificate appears to have been duly acknowledged.

There is attached a certificate of approval signed by the president of the state board of charities.

In the copy of the certificate of the Maryland corporation, the incorporators certify "that we do under and by virtue of the general laws of this state authorizing the formation of corporations hereby form a corporation under the name of 'the Order of the Holy Cross' of Westminster, Maryland."

It appears from the testimony of the superior of the order he had forgotten that such an organization as the said Maryland corporation ever existed; that they lived at Westminster for about 14 years, and during that time were carrying on their activities; that to the best of his knowledge and belief it never operated, "except with reference to the use of property devised to us by the bishop for our use as long as we remained there--that is, the order of the Holy Cross of New York." Witness is quite certain there is no other organization of the same name. On cross-examination, the witness testified that, while they were at Westminster, the organization did not engage in work near Thurmont, or anywhere else in Maryland, because the bishop objected, but that it is now allowed to function in Maryland, and frequently officiates here; that its activities extend all over the United States; that among its other activities it conducts three large schools for boys, which are not intended for the education of missionaries. No other witnesses testified.

The chancellor sustained the validity of the gift, subject to legislative sanction as to the realty.

This appeal is from that decree.

The contention of appellant is that the Order of the Holy Cross, one of the appellees, is not entitled to take the residuum of this estate, and that the residuary clause of said will is void and of no effect for the following reasons:

(1) Because the residuary clause creates a trust which is indefinite and uncertain as to its objects, and violates the rule against perpetuities.

(2) Because it is uncertain whether "the Order of the Holy Cross," a New York corporation, or "the Order of the Holy Cross," of Westminster, Md., a Maryland corporation, is intended. (3) Because the corporate powers of the Order of the Holy Cross, the New York corporation, do not include the capacity to receive gifts by devise and bequest.

(4) Because of laches on the part of "the Order of the Holy Cross," the New York corporation, in that it has failed to secure the sanction of the Legislature of the state of Maryland as required by section 38 of the Bill of Rights.

We will consider these in order:

(1) We agree with the chancellor that no trust was created in this case. A gift to a corporation for any of its charter purposes is valid, and is not assailable on the ground that it is a trust with indefinite objects. The facts of this case bring it well within the principle of Baltzell v. Church Home, 110 Md. 244, 73 A. 151; Bennett v. Humane Society, 91 Md. 10, 45 A. 888; Trinity M. E. Church v. Baker, 91 Md. 539, 46 A. 1020; Woman's Foreign Missionary Society v. Mitchell, 93 Md. 199, 48 A. 737, 53 L. R. A. 711; Ege v. Hering, 108 Md. 391, 70 A. 221; Erhardt v. Baltimore Monthly Meeting of Friends, 93 Md. 669, 49 A. 561; Doan v. Ascension Parish, 103 Md. 662, 64 A. 314, 7 L. R. A. (N. S.) 1119, 115 Am. St. Rep. 379; Halsey v. Convention, 75 Md. 275, 23 A. 781; Hanson v. Little Sisters of the Poor, 79 Md. 434, 32 A. 1052, 32 L. R. A. 293; Eutaw Place Baptist Church v. Shively, 67 Md. 493, 10 A. 244, 1 Am. St. Rep. 412; Board of Foreign Missions v. Shoemaker, 133 Md. 594, 105 A. 748.

In the first mentioned case, in which the opinion was written by Judge Boyd, it was said:

"The cases in this state fully establish the doctrine, that when property is left to a corporation for such uses as are within the scope of its corporate purposes, or the objects to which the gift is to be applied are such as the corporation was organized for, then such gift cannot be declared invalid on the ground that it was in trust for indefinite objects, or in conflict with the rule against perpetuities, unless the intention to create a trust be clear."

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