Williams v. Worthington

• Decision Date: 24 July 1878
• Citation: 49 Md. 572
• Parties: WILLIAM G. WILLIAMS, Executor of Eliza Anderson and Others v. RICHARD S. WORTHINGTON and Others.
• Court: Maryland Court of Appeals

49 Md. 572

WILLIAM G. WILLIAMS, Executor of Eliza Anderson and Others v. RICHARD S. WORTHINGTON and Others.

Court of Appeals of Maryland

July 24, 1878

Appeal from the Circuit Court for Anne Arundel County, in Equity.

The case is sufficiently stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, STEWART, ALVEY and ROBINSON, JJ.

James Revell and William H. Tuck, for the appellants.

1. It is not denied that words of request, etc., may create a trust, but they are not always imperative; they are flexible in character, and whether they are to prevail in any case is a question of construction. They have no fixed technical force, and ought to be interpreted according to the simplest and most obvious sense that can be put upon them, to reach the intent of the testator. Negro Chase v Plummer, 17 Md. 165; 1 Jarman, 339, note; Gilbert v Chapin, 19 Conn. 342. The cases are so numerous and dissimilar, if not conflicting, that it is impossible to extract from them a positive rule of interpretation, except that there must be an intention to create a trust. And the object and subject-matter on which it is to operate must be clearly and certainly pointed out. If the donee is made absolute owner of the property, and is to exercise a discretion whether he will or not carry out the words of request, etc., a trust will not be declared.

In Williams v. Williams, 1 Sim. N. S. 368, Lord Cranworth said: "The real question in all these cases always is whether the wish or desire expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it however to the party to exercise his own discretion."

"Where the property to which the supposed trust is to attach is not certain or definite; wherever a discretion or choice is given; wherever the prior disposition imports absolute and uncontrollable ownership; courts will not create a trust upon words of this character." 1 Jarman, 338, note; 2 Story's Eq. sec. 1070; Howarth v. Dewell, 6 Jur N. S. 1360.

If these trusts ever were favored, the leaning of the courts of late years has been against them, because the construction is opposed to the plain meaning of the words, making mandatory and imperative language that, in ordinary acceptation, is discretionary and optional; defeating a previous positive devise by words of mere request, when those of command, leaving no option, might have been used, if the testator had so intended. 2 Story's Eq. 1069; 1 Jarman, 338, 339, 344; 1 Redfield on Wills, 713, 715; Lawless v. Shaw, 5 Cl. & Fin. 129; Sale v. Moore, 1 Sim. 534; Pushman v. Filliter, 3 Ves. 7, note.

It will be found that the American cases have not enforced these trusts as rigidly as was done in the early English cases. McConkey's Appeal, Am. L. R., O. S. 342; Gilbert v. Chapin, 19 Conn. 342.

2. This testator intended to give his property absolutely to his wife, except the negroes, leaving to her discretion the execution of this request.

The words of devise to her have this and no other legal import, and are to have effect according to their technical meaning, unless it is clearly shown that he intended otherwise, because he is to be presumed to have used them in that sense:--"To my dear wife and her heirs and assigns forever." In some of these cases the decision has turned upon the extent of the interest bequeathed to the donee, as showing that an absolute gift was intended, on which no trust could arise. 2 Story's Eq. sec. 1070; 1 Jarman, 338, note.

Do the superadded words impair this absolute estate by raising a trust as now contended? This depends on the question of certainty as to the property to be affected by the trust.

The cases show that a trust will not be declared if the request or desire is made as to "what shall or may be left," because these words import that something may be taken from the property in the life-time of the donee, which, of itself, creates uncertainty as to the subject of the trust. Pushman v. Filliter, 3 Ves. 7; Wynne v. Hawkins, 1 Bro. Ch. 179; Meredith v. Heneage, 1 Sim. 542; Wilson v. Major, 11 Ves. 205; Bull v. Kingston, 1 Meriv. 314; Sprague v. Barnard, 2 Bro. Ch. 585.

In this will, the words are "all of the said property at her death remaining in her possession." Is there any difference in meaning between what is left and what remains? If this will had said, "all of the said property at her death left in her possession," the case would be clearly with the appellants, on the authority of adjudged cases. Nine men in ten, in drawing their own wills, would use these expressions indifferently, as meaning the same thing, and not one would imagine that by using either form he was imposing upon the first and principal object of his love and bounty a duty to do something with the property, for the benefit of another, which the law--not the testator's purpose--would compel him to perform.

It is respectfully insisted that no argument can be presented as to the force of the words here used that would not apply as well in all the cases where the trust was sought to be established as to the property that was "left" at the death of the donee. In these there was no express power of disposal given to the donee, any more than here, but it was held that the words "what shall be left" necessarily imply that the first taker may use the property at his discretion, and for his own benefit, and it is therefore uncertain whether anything may be left at his death. Tibbitts v. Tibbitts, 19 Ves. 664; Cowman v. Harrison, 17 E. L. & Eq. 290; 1 Jarman on Wills, 322.

Another element of uncertainty is presented by the inquiry, to whom would the natural increase of the property belong if the bequest to Mrs. Anderson is cut down to a life estate?

In Bland v. Bland, 2 Cox Ch. 349, the request was made as to "the said premises, or so much thereof as he shall stand seized of at the time of his decease." Lord Hardwicke held, that the previous devise in fee imported a power in the donee to diminish the property. It was the same, said the Lord Chancellor, as if the testator had said, "I leave it to you to dispose of as you think fit, but I shall be glad if you will give as much as you can spare, so and so."

In Att.-Gen. v. Hall, Fitzgibbons, 314, 321, there was a devise of real and personal estate to a son and the heirs of his body, and if he died without such heirs, then "so much of my said real and personal estate as my said son shall die possessed of at his death, to the Goldsmith's Company, in trust for charitable uses," etc. The court held, "that the son took an absolute estate in the property, and that the Company was to have no more than he shall have left unspent, and therefore he had a power to dispose of the whole, which power was not expressly given to him, but resulted from his interest, and nothing remained to be given over."

This case was in 1735, and is referred to in Bland v. Bland, and other cases.

In the cases in which trusts have been sustained, there will generally, if not always, be found something to indicate, from the face of the will, how the rule id certum est, etc., could be applied with certainty. For instance, in Pierson v. Garrett, 2 Bro. Ch. 38, the dying request related to "the fortune he shall receive under this my will"--that is, to the whole property, and that was after an absolute bequest defeasible on the donee dying without leaving issue. The only question was as to the binding force of the words upon the conscience of the donee. The Lord Chancellor held that the donee only took an estate for life.

Frank H. Stockett and Alex. B. Hagner, for the appellees.

Whatever interest or estate the will of Dr. Anderson created in favor of Brice T. B. Worthington had he survived Mrs. Eliza Anderson, descended to the appellees, his sole heirs-at-law upon his death, or vested in them under his will. Spence v. Robins, 6 G. & J. 507; Code, Art. 93, sec. 304; Glenn v. Belt, 7 G. & J. 362; O'Byrne v. O'Byrne, 9 Md. 512; Waters v. Waters, 24 Md. 431; Hays v. Wright, 43 Md. 122.

The rule is, that if the legatee be capable of taking, no postponement of the time of the payment will prevent his having a vested and transmissible interest. Cousins v. Schroder, 4 Sim. 23; Thomson's Trusts, 15 Law & Eq. Rep. 498; Hammond v. Maule, 1 Cully, 281.

The words used in the will are sufficiently clear and definite to create a trust, and are sufficiently imperative to demand its fulfillment.

In creating a trust, a person need only make his meaning clear as to the interest he intends to give, without regarding technical terms. Lewin on Trusts, 86, 104; Hill on Trustees, 73-74; 1 Jarman on Wills, 334, et seq.; 2 Story's Eq. secs. 1068, 1068 a; 1 Spence, 498, 501; 1 Redfield on Wills, 173-175, 699, 700, 703 and notes; Perry on Trusts, secs. 112, 114, note 3, 115; Forbes v. Ball, 3 Mer. 437; Hunter v. Stembridge, 12 Ga. 192.

The correct principle is, that a trust is created in those cases only "where a testator points out the objects, the property, and the way it should go." Smith Manual of Equity, 124; Malim v. Keighley, 2 Ves. Jr. 335; Knight v. Boughton, 11 Cl. & Fin. 548; Pierson v. Garrett, 2 Bro. Ch. 38; Chase v. Plummer, 17 Md. 166; Saylor v. Plaine, 31 Md. 158; Eade v. Eade, 5 Madd. Ch. 77; Harrison v. Harrison, 1 Russ. & M. 71; Harwood v. West, 1 Sim. & Stu. 387; Ford v. Fowler, 3 Beav. 146; Paul v. Compton, 8 Ves. 380.

In the case now before the court, the will is so clear and expressive as to the objects and the way in which the testator's property should go, i. e., the persons who are to take, that there can be no hesitancy as to either.

Bartol C.J., delivered ...