Deford v. Deford , 36 Md. 168 ( 1872 )

Miller, J.,

delivered the opinion of the Court.

The decree below declares the seventh clause of the will of Benjamin Deford void and inoperative, because it infringes the rule against perpetuities. This part of the decree cannot be reversed without overruling the decision in Barnum’s Case, 26 Md., 119.

The testator commences this clause of his will by declaring, “WhereasT have now a number of grand-daughters and may have many more, and believe I will confer more good on my family by making proper provisions for my said granddaughters than by any other disposition of my property,” and he therefore “gives, devises and bequeaths, certain described real estate and bank stock to two trustees and the survivor of them and the heirs, executors, administrators and assigns of the survivor in trust, to and for the following uses and purposes, viz: to receive the rents and profits thereof and keep the same in order, to pay all taxes, expenses and charges, including a reasonable compensation for services as trustees, and to apply and uso the balance, being the net iricome thereof, in the support, education and maintenance of such grand-daughters, as I now have, or may hereafter have, or may at any time hereafter descend from any of my five children now alive, for the just and equal benefit of the said granddaughters during their respective lives, which said trust is to be continued for the benefit of the said grand-daughters so long as there may remain living at least three of them, but no longer, but in case there shall not be alive of them the said grand-daughters at least three, then the trust hereby created is to end and be determined, and the said property is to be divided absolutely among my said grand-daughters who may then be alive, and the heirs and distributees of such of them as may have previously died, per stirpes and not per capita ; the income of said property during the continuance of the said trust to be divided between my said grand-daughters who may be living, and the child, children, descendant or descendants of such as may die during the said trust, leaving at the time of such death any descendant, per stirpes and not per capita.”

It is plain this trust may continue beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year, to cover the period of gestation, thereafter, and that during this time the property may be placed extra commercium. The trustees are. to hold the property and apply its net income not solely for the benefit of granddaughters living at the testator’s death, but also for the benefit of all that may at any time thereafter descend from any of the testator’s five children alive at his decease, and is to continue until his grand-daughters, then born or thereafter to be born, be reduced in number to two; then only is the trust to cease and the property to be divided. Thus many grand-daughters of the testator’s living children may be born years after his death, and their number may not be reduced to two until long after the expiration of the lives in being when the will took effect, and the allowed period thereafter. During all this time the trust by express terms is continued. Each after-born grand-daughter as she comes into existence steps in and derives the benefit of the income, for her education and maintenance, equally with those living at the testator’s death, and if any one of tlie grand-daughters, whether then living or after-born, dies without leaving issue, before the period of distribution arrives, the property all goes to those in esse at that time, and the then living descendants of such as may have previously died. The trust is fastened upon the whole for the benefit of parties in being when the period of distribution arrives, and that period may not arrive until long after the expiration of the time within which the law permits estates to be tied up.

In Barnum’s Will the devise was to trustees in trust with a leasing power to continue, “ so long as my said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or any of them, shall live,” and the Court held it void because the trust might extend so as to embrace persons and lives not in esse at the time of the testator’s death. After stating the rule that the law would not permit an estate to be so limited as by possibility to extend beyond a life or lives in being, and twenty-one years and a fraction thereafter, they said the case before them did not present the question “as to the future vesting of an executory estate, in order to determine the tvalidity of the preceding one; but simply whether the trusts of the will require in their execution a longer period than that prescribed by the rule against perpetuities, and, therefore, render the property devised to the trustees inalienable during that time; if so, the law denounces the devise in trust a sa perpetuity, and declares it void.” All the reasoning in that case applies here, and we regard it as a binding and conclusive authority which must, notwithstanding the very able argument of counsel to the contrary, control our judgment in the present case. The Oourts in prescribing and settling the rule against perpetuities have founded it in true wisdom. They have thereby limited tlie indulgence of the natural inclinations of men to fix control over their property after death, in order to provide for those of their own blood who may come after them, by a careful consideration and regard for “ those larger principles of public policy which are essential to the welfare of communities and States.” The decision in Barnum’s Case is a fair and just application of the rule, and in addition to the authorities therein cited for its support, reference may be made to secs. 382 and 383 of a most excellent work (Perry on Trusts) recently published, where it is said: “ A perpetuity will no more be tolerated when it is covered by a trust, than when it displays itself undisguised in the settlement of a legal estate. ‘ If/ as Lord Guilford said, ‘ in equity you could come nearer to a perpetuity than the Common Law admits, all men, being desirous to continue their estates in their families, would settle their estates by way of trust, which might make well for the jurisdiction of Chancery, but would be destructive to the commonwealth. Therefore the creation of a trust or equitable interest, which cannot vest in the object of the trust within the time limited by law for the vesting of legal estates, will be nugatory. Thus where a testator devised his-real estate to trustees, to apply the rents to the support of his wife, during the life of the wife, and on her death to convey the estates to all his present and future grand-children, as they respectively attained the age of twenty-five years, to hold to them and their heirs as tenants in common, it was held that the trust to convey was void, for the reason that some of the grand-children might not become twenty-five years old until after the expiration of the life of the tenant for life, and twenty-one years in addition.” . The fact that the testator, in another clause of his will, empowers his trustees to change the investments and reinvest as often as may be deemed proper, by making sales or otherwise, does not change the nature of the trust, which may extend beyond the time limited, and does not therefore • extricate the case from the operation of the rule; the possihility of such continuance the law regards as decisive in determining the question of perpetuity or not.

The decree after declaring the seventh clause void, further declares the testator to have died intestate of all the estate, and property thereby attempted to be disposed of, thus devolving the bank stock therein meiitioned upon the next of kin. The appellants insist this is error, and that this stock as personal property passes under the residuary clause.

This question has also been settled by express decisions of this Court. In Tongue vs. Nutwell, 13 Md., 415, it was decided that in .case of a devise of real estate void by the rules of law the land descended to the heirs-at-law and did not pass to the residuary devisee. In their opinion the Court admit the preponderance of authority outside of Maryland was in favor of the residuary devisee, and base their decision upon Lingan vs. Carroll, 3 H. & McH., 333, a case decided nearly seventy years before, never overruled or doubted, but followed'and acquiesced in by the legal profession as sound Maryland law. In Cox vs. Harris, 17 Md., 23, a similar question in reference to a void bequest of personal property arose, and the Court held the residuary legatees entitled to it, according to the law recognized by the whole current of authorities both in England and in this country. They referred to Tongue vs. Nutwell, and said, they did not intend to disturb the law established by that case, that being a devise of realty, affecting the rights of an heir-at-law which have always been regarded even in this State, and that the distinction between a void devise of real estate and a bequest of personal property, was sanctioned by the authorities referred to, and should be maintained. In Barnum’s case, the Court remarked that if the clauses declared void and the residuary clause constituted the entire will, the testator would be held to haVe died intestate of his “hotel property,” under the ruling in Tongue vs. Nutwell. In using the terms “hotel property” the Court, in our opinion, had reference to the real estate of which the property thus described chiefly consisted, and did not advert to the fact that the furniture in the hotel and other personal estate might be regarded as included therein. We cannot impute to the Court an intention, simply by the use of these two words in • this connection, without reference to, or any comment upon it, to overrule the case of Cox vs. Harris, a recent and well considered adjudication upon the very question of the right of residuary legatees to personal estate attempted to be disposed of by a void bequest. The same Judge who delivered the opinion of the Court in Cox vs. Harris, concurred without remark- in the decision in Barnum’s case, and we must infer that by the latter decision the Court meant merely to adopt and follow the law of Tongue vs. Nutwell, respecting real estate to which alone they refer. As to the intention of the testator to be derived from the terms of the residuary clause in the will before us, no doubt can exist if the rule in Cox vs. Harris, and the authorities there cited, is ever to be applied. The language ‘"'rest and residue of my estate” is as comprehensive as possible, and it is only the decision in Tongue vs. Nutwell, that saves the realty to the heirs at law. From these views it follows the decree is erroneous in declaring an intestacy of the bank stock mentioned in the» seventh clause of this will, and it must therefore be reversed, and the cause remanded in order that the decree may be reformed in this respect.

(Decided 22d May, 1872.)

We have decided the seventh clause of the will to be void without considering whether any of the appellees have the right to raise that question, because we consider it presented by the appeal- taken by the appellants, and the position they assume in this Court. They insist the decree is wrong because it takes the bank stock away from them as residuary legatees. Whether that be error or not must depend in the first place upon the validity or invalidity of this clause, for if that be valid the appellants as residuary legatees have no title and have not been prejudiced by the decree they have appealed from.

Decree reversed and cause remanded.