The question presented by these appeals arises on the construction of the will of the late Willie F. Hooper, of Wicomico County. Mrs. Margaret A. Humphreys, by her husband, filed a bill in the Circuit Court for that county in which she alleged that the third, fourth and fifth clauses of her sister's will are void. The defendants were duly summoned and answered. The case was heard by the Court below on the bill, answers and testimony, and after argument a decree was passed declaring that the third and fourth clauses are valid, so far as they relate to the provision therein respectively in favor of the preacher who may be from time to time in charge of said churches respectively; but void so far as the same made provisions for the benevolent boards and the keeping in good condition of the "Hooper Burial Lot." The decree further declared that the fifth paragraph of the will is void, and that title to the house and lot therein devised to trustees in trust, to rent the same and pay the net rent as therein directed, vested in the plaintiff as sole heir and residuary devisee upon the death of the testatrix. From this decree the trustees named by the testatrix in the fifth item of her will have appealed; and several of the beneficiaries of the trust have also appealed; but both appeals present the same questions. The appellants made no objection in this Court to that portion of the decree which relates to the third and fourth paragraphs; hence the sole question left for our consideration relates to the validity of the devise contained in the fifth paragraph of the will. It is as follows: "I give, devise and bequeath my house and lot * * * to F. Marion Slemons, Thomas H. Williams and E. Stanley Toadvin in trust, to *Page 140 hold the said property, and to rent out the same, and collect the incomes and rents therefrom." The testatrix directs her trustees, after the payment of her debts and funeral expenses, to pay the net rent from year to year to a number of incorporated bodies and boards for charitable purposes in certain proportions designated by her.
The contention of the appellee, and this contention was sustained by the Court below, is that the devise in the fifth paragraph is void because it creates a trust to which there is no limit of time. Upon an examination of the will itself we not only fail to find an express limitation to the duration of the trust, but the testatrix makes express provision for its indefinite continuance in the seventh paragraph of her will by providing for the appointment of trustees to succeed those she had named in case of the death, resignation or refusal of the latter to serve. We think there can be no doubt as to the intention of the testatrix. She intended by the creation of this trust to make a perpetual provision for the objects of her bounty. Can we, under the well and long-established law of this State, effectuate that intention? We certainly cannot if we adhere to the well-considered decisions of this Court from the case of Barnum v. Barnum, 26 Md. 119, down to the present time. In the case just cited it is said that "The first and very important question which arises on this statement of the contents of the will * * * is whether the period described in the will, through which the leasing by the trustees is to run, transgresses the rule against perpetuities." It was held that the period of leasing so designated by the testator did plainly violate the rule, and in disposing of the question this Court said: "If an estate be so limited as by possibility to extend beyond a life or lives in being at the time of its commencement, and twenty-one years and fraction of a year (* * *) afterwards, during which time the property would be withdrawn from the market, or the power overthe fee suspended, it is a perpetuity. * * * * The question whether an estate is a perpetuity, generally arises in cases in which a future *Page 141 contingent estate or executory devise is limited upon a fee, and if the contingency upon which the executory estate is to vest, is not necessarily to happen within the time fixed by the rule as the legal boundary, then the precedent estate or estates are denominated a perpetuity, and the executory estate or devise fails for want of a legal estate to support it. * * * The object of the rule is to prevent the tying up of property, real or personal, and rendering it inalienable longer than the period designated by it. For that time the power over the inheritance or absolute interest of property may be suspended, but no longer."
"In the case now under consideration no question is presented as to the future vesting of an executory estate in order to determine the validity of the preceding one, but simply whetherthe 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 trusteesinalienable during that time. If so, the law denounces the devisein trust as a perpetuity and declares it void."
In Deford v. Deford, 36 Md. 178, (C.J. BARTOL being the only Judge who sat in that case and also in Barnum v.Barnum), MILLER, J., in delivering the opinion of the Court said, referring to Barnum v. Barnum: "All the reasoning in that case applies here, and we regard it as binding and conclusive authority which must, notwithstanding the very able argument of counsel to the contrary, control our judgment in the present case. The Courts in prescribing and settling the rule against perpetuities have founded it in true wisdom. They have thereby limited the indulgence of the natural inclinations of men to fix control over their property after death * * * 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," continued the Court, "is a fair and just application of the rule." And Perry onTrusts, sections 382 and 383, is cited where it is said: "A perpetuity *Page 142 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." In Goldsborough v. Martin, 41 Md. 501, it is said, that "the rule against perpetuities is one of the established landmarks of the law;" and the rule as applied to trusts inBarnum v. Barnum and Deford's case, supra, is approved and reaffirmed. We quote from Deford's case, the following language which is peculiarly appropriate to the case now before us: "Power is given to the trustee to appoint some one to succeed her in the trust after her death, and this of itself would render possible the continuance of the trust far beyond the prescribed limit. But, besides this, if the trust were valid, and the testator's intention could be carried into effect, a Court of Equity would be bound to supply a trustee to execute the trust * * * to remote generations."
It was suggested that a power to raise money out of rents and profits includes a power to sell and mortgage for the purposes of the trust, and that the trustees under Miss Hooper's will being required to pay taxes and debts, they may be required to sell the trust property — but, whether this be so or not, we will not stop to enquire, for even if the testatrix had given power to her trustees to sell the trust property the difficulty would not have been removed. In Deford's case, it is said: "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 possibility of such continuance the law regards as decisive in determining the question of perpetuity or not." The rule of perpetuities as applied to trusts in Barnum v.Barnum has been approved also in Stannard v. Barnum,51 Md. 449; Heald v. Heald, 56 Md. 309; Collins v. Foley,63 Md. 162; Albert v. Albert, 68 Md. 372; Dulaney v. Middleton,72 Md. 78; and Thomas v. Gregg, 76 Md. 174. *Page 143
But the contention, on the part of the appellants, is that this settled rule, this "landmark of the law," has no application to charitable trusts, and counsel ventured to assert that there is no case in Maryland in which it has been so applied. There are, however, at least two cases where the rule has been directly applied to such trusts. In the old and leading and very familiar case of Dashiell v. The Attorney-General, 5 H. J. 392, the devise was for "poor children belonging to the congregation of St. Peter's Church, c." The devise was held void because the trust was indefinite and because it created a perpetuity. The decision just cited was so construed in the case of Needles v.Martin, 33 Md. 618, where the devise for a charitable purpose was also held to be void because it was too vague as well as because it was a perpetuity. But ever since the case of Dashielland The Attorney-General it has been held in Maryland that the Statute of 43 Eliz. has never been in force in this State, and therefore there is no distinction here, as in many other States and in England, between a bequest to charitable uses and other objects. Dashiell v. Attorney-General, supra; The Provost,etc., v. Abercrombie, 46 Md. 173; Yingling v. Miller etal., 77 Md. 107.
Hence it will be seen that in spite of the criticism of "the learned annotator" whose notes to Barnum v. Barnum are published in Perkins' Edition, 26 Md. 119, and were so much relied on at the hearing, we feel constrained to adhere to the law as announced in that case. It is apparent, however, that this course must tend to benefit rather than injure the prospects of charitable trusts in this State in the future, because testators like all others will be required to know and act upon the well-settled law of the State, and they will therefore givedirectly and absolutely to charitable trusts what they have to give for such purposes, and they will not appear to give freely with one hand while they hold on to their gifts with the other, and by means of trustees attempt to control property which they have parted with. In the recent case of Pratt's Will,88 Md. 615, it is *Page 144 evident that the testator was well advised by counsel, and, as we held, avoided the error of creating a trust. He gave directly to the corporation itself. In the case just cited, in this Court's opinion, recently delivered by the present Chief Judge, it was shown very clearly by reason and authority that no trust was or was intended to be created.
But if the contention of the appellant be correct, such a course was altogether unnecessary, for, as suggested by counsel for appellee, if the perpetuity rule does not apply to devises and bequests to religious and charitable uses, this Court, in the case of Mr. Pratt's will, could have decided the question very easily by holding that whether there was a trust or not was immaterial, because if there was no trust the rule confessedly did not apply, and if there was a trust it did not apply because the devise was in favor of a charitable institution.
It follows from what we have said that we entirely agree with the view taken of this case by the learned Court below.
Decree affirmed with costs.
(Decided April 6th, 1900.)