Mory v. Michael , 18 Md. 227 ( 1862 )

Cochran, I.,

delivered the opinion of this court.

The questions in this case arise upon a demurrer to the bill of complaint filed by the appellants, claiming under the will of Catharine Michael, deceased.

The bill was filed to recover from the appellee the sum of $>4250, and interest due thereon, from the 4th of February 1854, to the 28th of February 1858, which it alleges he received from Catharine Michael under an ante-nuptial contract, dated the 4th of March 1850, subject to a power of appointment by her will, and to which the appellants are entitled under her will, as a valid execution of that power.

The substance of the bill, the ante-nuptial contract and will, are set forth in the statement of this case, (ante 228 to 231.) The demurrer presents two grounds of objection to granting the relief prayed:

1st. That the will does not operate as a valid execution, of the power contained in the contract.

2nd. That there is no jurisdiction in equity over the subject matter of the bill.

The determination of these questions depends upon the construction to be given to the contract and will, under which the appellants claim, and' these will be first considered with reference to the question of jurisdiction. By reference to the contract it appears, that the personal estate of the testatrix, consisting of money, dioses in action, book accounts and other personal property,- was assumed to be of the v'alue of §4250, and that, between the parties to the contract, it was considered, dealt with, and assigned to the appellee, as money to that amount, and that in consideration thereof, the appellee bound himself to pay to the testatrix annually, during her life, interest on said sum for her sole and separate use, free from his marital rights, and covenanted that she should have full liberty to devise and bequeath said sum of §4250, and any interest that might be due thereon, by will or codicil, as if she were a femB sole, and in default of any appointment by her, by will or codicil, that he would pay the same to any child or children she might leave. The effect of this contract was to divest the testatrix of the title to the property assigned, and to secure payment of the annual interest thereon to herself during life,- for her sole and separate use, with a ¡lower of appointment by will or codicil, and in default of such an appointment, to secure'payment of the principal sum and unpaid interest to any child or children she might leave. The appellee took the legal title to the property under the contract, with limitations against any beneficial use or interest in himself, and a determination of the character of his relation to it, will decide the question of jurisdiction presented by the demurrer.

Although the contract in some respects is inartificially drawn, it is clear that the intent of the parties to it. was, to fix upon the appellee a fiduciary possession of the fund assigned, and create a trust by which the purpose of the testatrix, as to its beneficial use and ultimate destination, would be accomplished. 'The creation of a trust depends upon intention, and when expressions used manifest an intention that the grantee or donee of property is not to have the beneficial use, but is to hold it for the benefit of another, he will be considered as a trustee holding (he legal title for the beneficial owner.

A gift or grant of property to a grantee or donee, to be applied to a certain use or purpose, fastens a trust orí the holding of the legal estate. Hill on Trustees, 65. 2 Ves. Jr., 335. 7 Eng. Law & Eq. Rep., 134. 3 Md. Rep., 505. In this case we think the appellee took the property assigned by the contract, as a fund, with the interest as it might or should accrue in the lifetime of the testatrix, incumbered with a trust, and that notwithstanding the form of his obligation in reference to it, relief in equity may be had for any failure or default on his part in its execution.

The remaining question presented by the demurrer is, whether the will, under which the appellants claim, operates as a valid execution of the power of appointment set forth in the contract?

The interest due and unpaid at the decease of the testatrix by the contract, was her sole and separate property, and will pass under the residuary clause of her will, without regard to her power of appointment, upon the principles recognized by this court in 11 Md. Rep., 492, and 12 Md. Rep., 158. The question submitted is, therefore, limited to the operation of the will as an appointment within the terms of the contract upon the principal sum assigned by it to' the appellee. The execution of a power of appointment by will must be intended, and the intention must be clearly manifested. The rule of construction by which such an intention may be ascertained, is explicit and exhaustive,- and may be thus concisely stated:— The intention to execute a power of appointment by will, must, appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would- be inoperative without the aid of the power. Sug. on Pow., 301, 303. 4 Kent Com., 385. 1 Story C. C. Rep., 427. In this case the will affords no evidence ef a design to execute the power by either of the modes designated in this rule. It neither refers to the power, nor to the sum of money which was the subject of it, nor is it inoperative for want 'of property to give it effect as a testamentary act. We think, therefore, that the power set forth in the contract, was not executed by the will, and that the appellants claiming only as appointees under the will as a valid execution of the power, (without expressing any opinion as to their rights in other respects under the contract,) are not entitled to the relief prayed.

(Decided February 11th, 1862.)

As we are of opinion that the appellants are entitled to relief upon their bill, to the extent of interest due at the decease of Catharine Michael, without affirming or reversing the decree below, the cause will be remanded under the Act of 1832, chapter 302, for such further proceedings as may be necessary in the premises, each party to pay one-half of the costs of this appeal.

Cause remanded under Act of 1832, ch. 302.