This appeal is from a decree of the Circuit Court No. 2, of Baltimore City, construing the will of Melissa Baker, late of said city. The record shows that the testatrix died in March, 1899, leaving a considerable estate and a will with two codicils, in which she made a number of bequests and devises, many of which are free from doubt and have created no difficulty in giving effect thereto in the course of administration of the estate. Some of them, however, have given rise to doubts as to their proper construction and legal effect, and this case was instituted by the executors of the will for the purpose of having these construed and to have their trust administered under the direction of the Court.
The provisions of the will and codicils, which were adjudicated below, and about which question is made in this Court, read as follows:
IN THE ORIGINAL WILL: "Item 18. I give and bequeath to the Woman's College, located at the city of Lynchburg, in the State of Virginia, the sum of eight hundred dollars, for the education of one or more worthy girls.
"Item 19. I give and bequeath to George B. Baker, the sum of three thousand dollars, in trust and confidence that he will distribute and pay over said sum among and to persons and charitable institutions, the names of which and the portions to be paid to each beneficiary will appear in a memorandum which will be hereafter prepared by me or at my request. And any part of said sum not disposed of shall be distributed by said trustee among worthy persons and charitable institutions in accordance with views which I have expressed to said George B. Baker."
IN THE FIRST CODICIL: "Whereas, by the nineteenth item I have devised and bequeathed *Page 563 in trust to George B. Baker, to be distributed to persons or charities, to be named in memorandum to be hereafter given, if not given or any surplus, to be distributed by him, at his discretion, to worthy persons or charities, in accordance with my views as expressed to him, the sum of three thousand dollars, I do hereby increase the said amount three thousand dollars, making the amount under this item six thousand dollars."
IN THE SECOND CODICIL: "Item 9. I give, devise and bequeath to the Trustees of the Randolph-Macon College, a corporation organized under the laws of the State of Virginia, four thousand two hundred dollars, to be applied to aid deserving and promising young women, especially such as expect to enter upon mission work, to attend the Randolph-Macon Woman's College, at Lynchburg, as students, such aid to be either by loans or free scholarships, as said trustees may deem best. The receipt of the treasurer of the said board of trustees shall be a complete discharge of my executors for the same.
"Item 10. I give and bequeath to the Trustees of the corporation of Trinity Methodist Episcopal Church, South, corner of Madison avenue and Preston street, Baltimore, three thousand five hundred dollars, to be invested in safe securities, and the annual income applied as follows: As to two thousand dollars thereof, to the support of the pastor of said church; as to six hundred dollars thereof, to be paid to the Trinity Auxiliary of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South, to be included in the receipts of the said society and remitted to the treasurer of the Baltimore Conference Society of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South, for the general fund, including five dollars of the same for the conference contingent fund; as to five hundred dollars thereof, to be paid towards the support of the superannuated preachers, their widows and orphans, of the Baltimore Conference of the Methodist Episcopal Church, South; and as to the remainder, *Page 564 four hundred dollars, to be given to the infant class of the Sunday-school of said church, to be contributed by said class for the support of a little girl in one of the schools under the care of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South.
"Item 13. I give, devise and bequeath to E.B. Prettyman, Wm. W. Smith and George B. Baker, the homestead property, known as Friendsbury (with the request that the name of Friendsbury Home be applied to the same), on which I now reside, consisting of one entire block, with the buildings thereon, bounded by Baker, Monroe and Presbury streets and Friendsbury Place, according to the map hereto attached and made a part of this instrument, in trust, as follows:
"If at the time of the probate of my will the Women's Parsonage and Home Mission Society of the Methodist Episcopal Church, South, shall have become a body corporate, capable in law to receive devises, bequests and gifts, and if within two years thereafter, said society so incorporated, shall have raised or provided a sum of not less that ten thousand dollars, as an endowment fund for city mission work, and shall agree to conduct such work in the city of Baltimore, and to apply the proceeds of said fund to that work in said city, and shall further agree to accept the said homestead property hereby devised, and use the same as centre of operations in the work of said society, in the city of Baltimore, then said trustee shall convey said homestead property, to said Women's Parsonage and Home Mission Society, of the Methodist Episcopal Church, South, to hold to the use thereof, so long as said society shall continue to use said property for said purposes, with full authority to erect buildings thereon for mission meetings, lodgings, orphanage or any purpose connected with mission work, but without power to sell or alienate said land or any part thereof.
"And if said Women's Parsonage and Home Mission Society of the Methodist Episcopal Church, South, shall not *Page 565 within said two years comply with the conditions above set forth, then my said trustees, the survivors or survivor of them, shall have full power under this codicil to appoint such duly incorporated society doing mission work, in the City of Baltimore, as they may deem best to receive said devise, and shall convey said property to them on the terms and conditions above set forth, but said trustees shall have one full year, after the lapse of said two years from the probate of my will, in which to make said selection and permit the performance of said conditions.
"Item 14. I give and bequeath to E.B. Prettyman, William W. Smith and George B. Baker, trustees named in the foregoing item, ten thousand dollars in trust, to pay over the same to the Women's Parsonage and Home Missionary Society of the Methodist Episcopal Church, South, if they shall become incorporated and comply with the requirements of said item; but if they shall not, then to be applied by said trustees as provided in the last clause of said item.
"Item 15. Should any residuum of my estate remain after gratifying the foregoing legacies, I give, devise and bequeath all such residuum to my nephew, George B. Baker, in trust, to be applied by him under the provisions of the nineteenth item of my said will."
There can be but little difficulty in disposing of the questions of construction here arising, as respects some of the clauses which have been recited. By the provisions contained in the 19th item of the original will, and in the first codicil, together with the residuary disposition, in the 15th item of the second codicil, the testatrix manifestly intended to create a trust, and not to give the beneficial interest in the property, therein intended to be bequeathed to George B. Baker, the person named in these clauses. The beneficiaries of the trust are to be ascertained and pointed out by a memorandum to be left by the testatrix or at the discretion of the trustee, where, or in so far as the memorandum fails to dispose of the funds intended to be bequeathed. This brings these provisions directly within the effect of the *Page 566 decision of this Court, in regard to a similar testamentary disposition, in the case of Saylor v. Plaine, 31 Md. 158. In that case the trust was sought to be supported by the actual production of a memorandum left by the testator indicating the purposes to which the subject of the bequest was to be applied. Here the proof shows there was no memorandum in existence to direct the application of the property intended to be dedicated to the trust, nor are any beneficiaries thereof defined or ascertained in any way other than in the way of verbal suggestions to her trustee to guide his discretion; making the attempted disposition as contained in the items of the will and codicil here being considered more plainly ineffectual than was the case in the decision of this Court just referred to. These provisions we regard as too obviously void to require further allusion to them.
On the other hand, the provision in the 10th item of the second codicil which contains the bequest to Trinity Church of thirty-five hundred dollars, which gives to the said church two thousand dollars of the said bequest for "the support of the pastor of said church," is plainly valid upon the authority of the cases of England, Extr., v. Vestry of Prince George's Par.et al., 53 Md. 466, and Halsey et al. v. The Convention ofthe Prot. Epis. Church et al., 75 Md. 275, in which bequests making substantially the same provision as that now being considered, and where the bequests were in terms and language very similar, were upheld.
The proof shows that the church to which the bequest was made is an incorporated body engaged in religious work, and having a pastor as the principal directing agency in this work and an important factor in promoting the object of its corporate existence. Gifts in aid of so important a function of such an incorporated religious body fall within the scope and effect of other decisions of this Court, even if they were not directly supported by those just referred to. Of these the case of EutawPlace Baptist Church v. Shively, 67 Md. 493, is an example. This part of the bequest in the 10th item of the second codicil must, therefore, be held valid. *Page 567
Before leaving this 10th item we may as well examine the other provisions therein contained which are here brought in question. We may say here that as no point has been made as to the slight misnomer of this corporation in the bequest made to it, we need not advert to the misnomer as a matter for our consideration, although it was referred to in the brief of counsel who appeared on behalf of Trinity Church, further than to say that it sufficiently appears from the evidence that the corporation that is making the claim for the bequest contained in this item 10 is identical with the legatee therein named. Next, after the direction in this item 10, that two thousand dollars of the thirty-five hundred dollars thereby bequeathed shall be appropriated to the support of the pastor of the church, occurs, as has been seen, the direction that six hundred dollars thereof shall be "paid to the Trinity Auxiliary of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South, to be included in the receipts of the said society and remitted to the Treasurer of the Baltimore Conference Society of the Methodist Episcopal Church, South, for the general fund, including five dollars of the same for the conference contingent fund."
Now it is evident this six hundred dollars is not given to Trinity Church absolutely, or for its general purposes. It is to take the fund for the use of others, and becomes, therefore, trustee of the fund. The immediate cestui que trust is the "Trinity Auxiliary of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South," and it has been argued on this appeal, as it was in the Court below, that this "auxiliary" is an "integral" part of Trinity Church, the legatee; and that, therefore, the bequest is within the principle enunciated in the case of Eutaw St. Baptist Church v. Shively, supra. This, however, is not deducible from the evidence. From that it appears that it is not an incorporated body, and its organization and objects are described as follows: "The women of Trinity Church have organized an auxiliary of the Women's Foreign *Page 568 Missionary Society, and they raise a sum every year which they remit to the Treasurer of the Baltimore Annual Conference, and that treasurer remits it to the General Women's Missionary Board at Nashville." It is apparent, therefore, that this "Auxiliary" is not an agency of the church corporation which, like the Sunday-school in the case last above referred to, was organized, controlled and directed in its work by the corporation, and existing by authority of the corporation; but it is an independent, voluntary association called into existence by the volition of the members composing it, and continuing its existence only at the volition and pleasure of its membership. As soon, therefore, as this money (the six hundred dollars in question) is paid over to the beneficiary named (The Trinity Auxiliary) the church corporation would lose control of, and authority over, it; and there would be no one that a Court of Equity could call upon to give an account of it. Then the difficulty of enforcing the trust, or rather the impracticability of enforcing it through a Court of Equity is emphasized in this case because the duty of the "Auxiliary" is only to pay the money in question "to the Treasurer of the Baltimore Conference Society of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South," which, according to the evidence, is another unincorporated body over which a Court of Equity could have no control to compel an observance of the directions contained in the trust.
For the reasons assigned, the provision, in the bequest here under consideration which gives six hundred dollars to Trinity Church corporation for the purposes indicated must be held to be void. And the same must be held as to the two remaining provisions, the next of which is the one giving "five hundred dollars" "to be paid towards the support of the superannuated preachers, their widows and orphans of the Baltimore Conference of the Methodist Episcopal Church, South." We agree entirely with the Court below that this provision is to be pronounced void if *Page 569 we are to respect the authority of the case of Church ExtensionSociety of the M.E. Church et al. v. Smith, c., 56 Md. 362. In that case this Court was treating of a bequest to the appellant church corporation of a sum of money "to be used as a part of the `Perpetual Loan Fund' of said society;" and it appearing from the facts agreed upon in the case that this loan fund was a fund "set apart to be loaned to necessitous churches of the Methodist Episcopal Church erected from time to time within the limits of the United States and its territories, and the beneficiaries and recipients thereof, are such of said churches, as the committee in charge of said fund for the time being, may in their discretion select." The Court said at page 397: "According to the uniform course of decisions in this State, a trust cannot be upheld unless it be of such a nature that thecestuis que trustent are defined and capable of enforcing its execution by proceedings in a Court of Chancery." Then after referring to cases that announce that doctrine, the Court goes on to say: "Here the selection of the necessitous churches for whose benefit the bequest is given depends exclusively upon the will of the committee appointed by the corporation; if the committee should at any time fail to exercise its discretion, or the corporation should fail to appoint a committee for the care and appropriation of the loan fund, it would be possible for the corporation to appropriate to other purposes the entire fund; and there are no parties who could maintain a suit to prevent such misappropriation or enforce the execution of the trust, declared in the will."
Now, in the case at bar, the church corporation is not given the five hundred dollars disposed of by the provision we are now considering, but, as in the case of the six hundred dollars given for the benefit of the "Trinity Auxiliary," and, as in the case we have just cited from, the church corporation is made the trustee of the fund for the purpose indicated, the intended beneficiaries being "the superannuated preachers, their widows and orphans of the Baltimore Conference of the Methodist Episcopal Church, *Page 570 South." From evidence in the case it appears that the mode of ascertaining these beneficiaries, is under the discipline of the Methodist Episcopal Church, South, for what is denominated the Joint Board of Finance "to receive all moneys collected, as conference collections or otherwise, and distribute the same to the superannuated preachers, and the widows and orphans of deceased members of the conference, according to their best judgment of their several necessities." The testimony of the pastor of the church, Rev. Charles M. Hawkins, on this point was as follows:
Question. "Please state the manner in which the fund for the superannuated preachers, their wives and orphans is managed after it has been collected."
Answer. "The money thus collected is taken to the annual conference and there turned over to a board called the Joint Board of Finance; this board examines the case of each superannuated preacher, and the widows and orphans of those preachers, and determines in what proportion to divide this fund, and it is then paid over to these beneficiaries." He then in answer to further questions testified that application is made to the board by those claiming to be entitled to be beneficiaries and their cases are investigated and a decision given accordingly; that the board first determines whether upon application made there is a proper case in which to allow a share in the fund at all; and that then the board aims "to distribute the money on the basis of the need of those beneficiaries, some being in more destitute circumstances than others."
Thus it is seen that the allowance of aid to superannuated preachers and their widows and orphans, as ascertained and defined objects, is under the absolute control of the Conference of the Methodist Episcopal Church, South, to the discipline of which the legatee here is subject, and what is denominated their board of finance, and depends upon their voluntary action. Should it be determined by the conference to withhold these allowances altogether and to devote the funds, collected in the manner described, to what *Page 571 might seem some more important or necessary church object, it could be done; and in any such contingency the church corporation, here claiming this bequest, would be unable to perform its trust, as directed, and a Court of Equity would be equally without power to enforce it; and the fund designed to be dedicated to the purpose named in the bequest could, upon failure of the conference to so appropriate it, be diverted to other purposes.
The last of the provisions contained in this 10th item of the second codicil is the one giving four hundred dollars of the thirty-five hundred, bequeathed to the church corporation therein named, to the church to be given to the infant class of the Sunday-school "to be contributed by said class for the support of a little girl in one of schools under the care of the Women's Foreign Missionary Society of the Methodist Episcopal Church, South." Here, again, the church corporation does not take the money bequeathed absolutely for its general purposes nor to be used in aid of the exercise of any of its corporate functions. The gift of the four hundred dollars is a gratuity. The church takes it upon a trust. The beneficiary, which is left wholly indefinite and uncertain, is to be selected and ascertained by the infant class of the Sunday-school. There is no way of compelling this selection and there is no defined and ascertained beneficiary to ask for an enforcement of the trust. Under the rule laid down, therefore, in the case of Church ExtensionSociety, c., v. Smith, supra, and the numerous cases to which reference is therein made, this provision must fail.
We will proceed now to examine and construe the remaining provisions of the will and codicils in controversy, taking them up in the inverse order in which they have been recited. This brings us to the consideration of the 13th item of the second codicil, which involves necessarily the 14th, as well as the devise over in the one and the bequest over in the other. It is not for the Court to construct a will for the testatrix nor to reconstruct the one which she has seen *Page 572 fit to construct for herself. We must take the will which is put before us, ascertain from that the purposes and intention of the testatrix and then give effect to those purposes and her intention, unless we find that the law forbids their execution. Where we find that the rules of law will not permit the intention to be effectuated, our only duty is to simply so declare. In the clause of the will we are about to consider the testatrix expressed her wish and purpose with much care and particularity, and there can be but little doubt of what she intended by the provisions therein made. Her evident intention was to dedicate the specific property, which was the subject of the devise, to the specific use and purposes therein so particularly declared, and that it should forever remain extra commercium and beyond the power of alienation. She did not give the property to the corporation for the use for which it was designed, but gave it to trustees with express directions to exact all the conditions she named or with only the power to convey to the corporation upon and with the conditions annexed. She then provided that if the corporation, which she named to receive the conveyance from the trustees, should fail to comply with the conditions precedent, which she imposed, that they should then have power to appoint some other corporation, doing kindred work in the city of Baltimore, to receive said devise and should "convey said property to them on the terms and conditions above set forth," thus always insisting that the conveyance to be made should be on the terms and conditions which she had prescribed in furtherance of her cherished purpose to have the property dedicated, beyond the power of diversion, to the specific objects expressed in this clause of her will.
It was argued that the testatrix intended to give or did give a fee upon limitation with reverter to her heirs upon a cesser of the uses to which she dedicated the property devised. But the testatrix gave nothing; she created a trust to convey, and named trustees to whom she prescribed the conditions upon which they were to convey. Assuming *Page 573 without deciding that such an estate could have been authorized, if she had in mind the conveyance of the estate coupled with a condition of reverter upon a cesser of the declared use, why was such a condition omitted from among those so carefully prescribed and why was no alternative provision made to take effect upon such cesser? The answer would seem to be because the testatrix supposed she had provided against any such cesser in directing the trustees to convey an inalienable estate.
Again, it is said, if the restraint upon alienation will impose a condition which the law pronounces void the beneficial devisee will take the estate freed of the condition. The answer, again, is that the testatrix has not made a conveyance nor a direct devise of the property, but has only empowered trustees to make a conveyance. This direction to the trustees, therefore, to convey without power of alienation is at present, or as the case stands here, not a condition annexed to a devise or conveyance, but it is a limitation on the power of the trustees to convey; and who can say that they would have been authorized to convey at all if it had been known to the testatrix, or in her mind at the time of making the devise, that this condition when introduced into the conveyance she authorized would prove ineffectual. It is further insisted that the restraint of alienation prescribed here would be valid because the beneficial devisee is a charitable corporation. So late as the last term of this Court in the case of Missionary Society, c., v. Humphreys, ante p. 131 a devise to trustees for certain charitable uses was held void, because it offended against the rule of law forbidding perpetuities. It is true that in that case the objects of the charity had only an equitable interest in the property devised, but what difference in reason or principle can it make whether, if a charity cannot have the benefit of an inalienable estate, the estate to be forbidden on that ground be an equitable estate or a legal estate. In the case of Barnum v. Barnum,26 Md. 119, the reason of the rule against perpetuities is stated to be that the property, which is limited *Page 574 beyond the period allowed by that rule, is rendered inalienable and is "extra commercium." Obviously it would seem that reason would apply with as much force to an inalienable legal estate as to an inalienable equitable estate. If we had here a direct devise or a conveyance of the property in question it might be more a matter of legal construction which would control. What the testatrix herself might have done is one thing. What she has authorized her trustees to do is quite another thing. The question as presented here is rather one of extent of power, and we are to determine whether the power can be exercised within its limitations so as to effectuate the intention of the testatrix. That intention we have already seen as expressed in the trust created in the item of the will we are considering, was that the trustees therein named should convey to the beneficiary of the devise an inalienable estate in the property devised to them and this the law forbids to be done. Gray on Restraint onAlienations, secs. 13 and 23; Smith v. Clark, 10 Md. 186. Now in the case of Dolan v. Mayor C.C. of Balto., 4 Gill, 394, we find the law governing trustees with respect to carrying out powers of the description we are dealing with here laid down as follows: "Trustees have no power to alter or change the nature and object of the trust, or dispense with the exact performance of the conditions;" and it is further said, "a Court of Chancery has no such power." The trustees in question here, therefore, cannot dispense, in making a conveyance of the property, devised to them under the will of the testatrix, with the conditions imposed upon them by the terms of their trust and in attempting to make the conveyance with those conditions they will be attempting a legally impossible thing. And their act instead of effectuating would really defeat the express wish and intention of the testatrix. As a consequence of the views stated we are constrained to hold the devise in the 13th item of the second codicil and the devise over therein and the bequest in the 14th item, which is interwoven with and dependent upon the 13th item, and the bequest over in the said 14th item void. *Page 575
By the 9th item of this second codicil the testatrix bequeathed to the trustees of Randolph-Macon College a sum of money, "to be applied to aid deserving and promising young women," etc., as has been recited. The Court below held this to be a good and valid bequest and we think rightly so. The legatee is an incorporated body having for its object the education of the young, and the proof shows that a part of its work is carried on through the agency of what is known as the Randolph-Macon Woman's College, of Lynchburg, which was organized and is operated by the parent corporation in carrying out the general objects of the corporation. The bequest is given directly to the corporation and it is declared that the receipt of its treasurer shall be a complete discharge to the executors of testatrix's will. It is not given as a trust, as has been contended, but it is dedicated by the testatrix to an object directly within the general scope of the objects and purposes of the corporation. That the testatrix indicated the particular use to which the fund is to be applied does not invalidate the gift. Eutaw Baptist Church v.Shively, 67 Md. supra; Peter v. Carter, 70 Md. 139;Barnum v. M. C.C. of Balto. 62 Md. 275.
Lastly we are to consider the effect to be given to the 18th item of the original will, which has been recited, and which bequeaths the sum of eight hundred dollars to the "Woman's College, located at the City of Lynchburg, in the State of Virginia," "for the education of one or more worthy girls." In regard to this bequest the writer of this, is of the opinion that the clear intention of the testatrix, was to give the eight hundred dollars to the "Woman's College," according to the reading of this item of her will and that the legatee named, being one not capable in law of taking, the bequest is void. The majority of the Court, however, are of the opinion which prevailed with the Court below, that the term "Woman's College" is a misnomer, and that the intention of the testatrix was to make the corporation, "The Trustees of the Randolph-Macon College" the legatee under this item of her will, and that the bequest *Page 576 is a valid one, for the reasons assigned in treating of the bequest to that corporation under the 9th item of the second codicil.
In the view we have taken of the questions which have been passed upon it has not become necessary to refer specifically to the numerous exceptions to testimony. It will be sufficient to say that in the opinion of a majority of the Court that offered to show the misnomer in respect to the 18th item of the original will was competent and properly introduced to establish the misnomer. The property here which has been named as the subject of the intended trusts that have been held invalid will enure to the benefit of the heirs of the testatrix as to the real estate, and of the next of kin as to the personalty. Hill on Trustees, 114 (marg. page.)
It follows from the foregoing views that the decree of the Circuit Court No. 2, of Baltimore City, will be affirmed.
Decree affirmed. The costs to be paid out of the funds of theestate in the hands of the executors.
(Decided June 16th, 1900.)