MARYLAND COURT OF APPEALS.

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in Modern Eq. 27; Brown v. Mercantile | Lake all the right, title, interest, and estate Trust & Deposit Co. 87 Md. 377, 40 Atl. 256. which the settlor then had or might thereThe deed had been confirmed after it be after be entitled to under the provisions of came effective. his grandfather's will. This grant was upon the following trust, namely: "He shall col

Hewitt's Appeal, 55 Md. 509. Impossibility of having issue will never lect the income and profits of the said trust be presumed.

List v. Rodney, 83 Pa. 483; Flora v. Anderson, 67 Fed. 182; Read v. Fite, 8 Humph. 328; Lawson, Presumptive Ev. p. 302; Miller v. Macomb, 25 Wend. 229; 2 Taylor, Med. Jur. 2d ed. p. 303.

The admission of medical testimony as a foundation for a decree establishing that a woman will not bear children is contra bonos mores in the highest degree. Re Dawson, L. R. 39 Ch. Div. 161.

property, and shall, first of all, during the natural life of the said P. Sidney Ricards, apply and appropriate such profits and income to the proper support and maintenance of the said P. Sidney Ricards and his wife, Virginia S. Ricards, and for the proper sup port and maintenance, as well as education, of any children that may be born of their marriage, without any claim and to the exclusion of all rights that may be set up by any creditors of the said P. Sidney Ricards; and the said trustee shall return to the said

McSherry, Ch. J., delivered the opinion grantor a full account of his disbursements of the court:

at least once a year, and after the payment The bill of complaint which inaugurated of all charges incurred by the said trustee in this proceeding was filed on August 11, 1902, the premises, any surplus income shall be in the circuit court of Baltimore city by P. paid over into the hands of the said P. SidSidney Ricards and Virginia, his wife, ney Ricards, or to his order, and not otheragainst the Safe Deposit & Trust Company wise. If the said P. Sidney Ricards should of Baltimore. It states, in substance, that die, leaving his said wife surviving him, in 1871 the grandfather of Ricards died, without children born of their marriage, the leaving a will by the terms of which a trust said trustee shall become discharged, and was created. By the provisions of this trust the said trustee shall convey, assign, and one half of the income arising from the transfer all the property covered by this trust property was directed to be paid to the deed absolutely unto the said Virginia S. widow of the testator during her life, and Ricards; but if the said P. Sidney Ricards the other half to the testator's daughter, shall die, leaving his said wife and a child Frances Virginia, during her natural life. or children, born of their marriage, survivIt was further provided that on the death ing him, the said trustee shall at once disof the daughter, leaving the widow surviv- tribute the said property between and to ing her, the share of the income bequeathed this said wife and child or children just as to the daughter during her life should be the law would dispose of it, if it were owned payable to her children living at the time of by him free of any trust and he had died her death, until they attained the age of intestate. If he should survive his said wife, twenty-one years. The will further declared and should die, leaving children of their that after the death of the widow and marriage, then the said trust shall be disdaughter, and upon the children of the charged, and the said children shall become daughter reaching the age of twenty-one absolutely entitled to the said property covyears, the trust should cease, and the prop- ered by this deed." This deed was placed on erty covered by it should belong absolutely record in the office of the clerk of the superto the children. In February, 1902, the ior court of Baltimore city shortly after its daughter of the testator died, leaving the date. Mr. Lake having neglected or declined plaintiff, P. Sidney Ricards, and George P. to act as trustee, the plaintiff and his wife, Ricards her only surviving children; they on the 11th of April, 1902, filed a bill in the both being above the age of twenty-one. The circuit court of Baltimore city wherein the proportion of the mother's share of the trust trusts hereinbefore mentioned were set estate to which the plaintiff was entitled is forth, and a certified copy of the deed of about $20,000. The widow of the testator trust was exhibited. It was alleged in the is still living, but upon her death the plain- bill that Mr. Lake had declined to act as tiff's half of her share of the trust estate trustee, and that it would be necessary for will be something in the neighborhood of a new trustee to be appointed "to perform $22.000 more. In August, 1890, before and carry out the said trusts in said deed either share of the trust estate had come mentioned;" and the plaintiffs nominated into the possession of Ricards, he executed a the Safe Deposit & Trust Company of Baltideed of trust which he and his wife now more as such trustee. On the same day the seek, by these proceedings, to have annulled court passed a decree, by consent of the parand vacated. By that deed the plaintiff ties, appointing the trust company substigranted, assigned, and conveyed to Charles tuted trustee, and directed the new trustee

to administer the trusts created by the deed under the direction of the circuit court. The bill of complaint upon which this lastnamed decree was founded was signed by both Ricards and his wife. In March, 1902, Ricards gave to Lake, trustee, and to his successor, an order directing the whole of the income arising from the trust estate to be paid to his (Ricards') wife for their joint support and maintenance. After the events thus far narrated had transpired, the bill of complaint now before us was filed, as we have said, in August, 1902.

The grounds upon which it is sought to set aside the deed of trust are: First, that the settlor misunderstood the scope and purport of the conveyance in this: That he believed it was intended to, and did in fact, transfer his interest in the trust estate to his wife absolutely; secondly, that, inasmuch as the possibility of his wife having issue was extinct, and inasmuch, therefore, as there could be no persons entitled in remainder under the terms of the deed of trust, the trusts ought to be terminated upon the joint request of the settlor and the only possible beneficiary, the wife, she having received from her husband, shortly before the bill was filed, an absolute assignment of all his interest in the trust property. It must be noted at the outset that the case is entirely free from any charge of fraud, misrepresentation, or deceit.

the face of these emphatic acts of ratification, it would be useless to further consider or discuss the averment of mistake. We may add, however, that, inasmuch as the deed of trust was executed as long ago as August 4, 1890, and no attempt was made to impeach it until August 11, 1902, such a long delay and acquiescence, under the circumstances heretofore stated, are a complete bar to relief on the ground of mistake. lewitt's Appeal, 55 Md. 517; Beard v. Hubble, 9 Gill, 431.

We now come to a much more serious and delicate question. Is it competent to the plaintiffs to prove by medical testimony that Mrs. Ricards is incapable of bearing children? It may be conceded that, where all the parties in interest are in being and all are sui juris, they may agree to terminate the trust, and, if no reason appears for denying their request, a court of equity will terminate the trust. Beach, Tr. § 761. Lying behind this legal proposition is the inquiry above propounded, because, unless there is no possibility of Mrs. Ricards having issue, and unless this physical condition can be lawfully proved in the way and by the means by which it has been attempted to be established in this case, all persons who might have an interest in the trust funds, and who, if in being, would have such interest, are not in being, and the rights which they would have, on coming into beWith regard to the averment of mistake, ing, cannot be affected or interfered with. we deem it necessary only to say that the Consequently this branch of the controversy evidence contained in the record fails in our turns and depends upon the answer that judgment to establish it. It would serve no may be given to the inquiry as to useful purpose to go into an analysis of the whether the medical proof set out in the evidence, because, even were there room to record, and objected to by the trustee, is question the accuracy of the conclusion just competent and admissible. We refrain for announced, there are two distinct acts of obvious reasons from setting forth the deratification of the deed which would pre-tails of this testimony. Mrs. Ricards is fifclude the plaintiffs from now impeaching it, ty-three years of age. Her husband is sevalthough the settlor might not have compre-eral years younger. There are some early hended its full significance and effect when English cases which upheld or sanctioned a he executed it. Those two acts of ratifica-presumption that a woman of Mrs. Ricards' tion are: First, the order directing the age was incapable of bearing children. The trustee to pay the whole income to the set- more modern English cases have not adopted tlor's wife; secondly, the bill of complaint or relied on this presumption. Re Dawson, filed by the plaintiffs to procure the appoint- L. R. 39 Ch. Div. 155; Re Sayer, L. R. 6 ment of a new trustee. Both of these acts Eq. 319. In Lawson, Presumptive Ev. p. of necessity imply that the settlor and the 302, it is said: “In a number of cases the life beneficiary were fully aware of the con- | English courts have acted on the presumptents of the deed. Not the faintest protest tion that a woman beyond a certain age is was entered against its terms, but, on the incapable of child-bearing. No case can be contrary, the request made of the circuit found in the American courts in which such court to designate a new trustee to carry out a presumption has been given effect to." At the trusts declared in the deed of itself in- best, such a presumption is speculative. It volved a recognition and an affirmance of is, as the very term "presumption" implies, those trusts, and was tantamount to an as- a mere inference, and not a certainty; and it sertion that the deed correctly represented would be exceedingly unsafe to permit propthe intention and the object of Ricards. Inerty rights to depend upon so precarious a

conscience would be made the instrument for the promotion or encouragement of acts most manifestly subversive of good morals. Even had the question as to the admissi bility of this kind of testimony been decided in other jurisdictions adversely to the

upon grounds of a sound public policy, to exclude the testimony in a contention like this.

basis. But the proposition here goes further. It does not contemplate reliance on a simple presumption. Physical condi tions have been testified to by medical witnesses who have expressed the opinion that there was no possibility of the life tenant being the mother of children. Can such ev-view we take, we should feel constrained, idence be received in a court of justice to affect the devolution of property, or to divert the course marked out for it to follow? The admission of such evidence in a case In Re Dawson, L. R. 39 Ch. Div. 155, Juslike this, where the avowed purpose of the tice Chitty, in dealing with a trust alleged proceeding is to cut out or strike down an to be void for remoteness, said: "Thereestate in remainder, would or might be pro- upon this argument is raised,—that the parductive of most disastrous results. If, be- ties are at liberty, when the bill is brought cause of physical degeneracy, atrophy, or de- before the court, to give other evidence of cay, a medical man may, in a controversy the state of things existing at the testator's involving title to an estate, testify that a death, for the purpose of showing that some woman is incapable of bearing children, so person mentioned in the will whose issue that a trust deliberately created for her are to take can have no issue born after the benefit during her life only may be brought testator's death. Death, of course, in the to an end, with a view of vesting an abso- testator's lifetime, proves the fact of the imlute interest in her, or so that the vesting possibility of having any issue born after of a remainder may be accelerated, no one his death, and it is said that the law cancan foretell to what lengths such a not be so one-sided as to confine itself in precedent would lead. A surgical operation point of principle to the mere case of death. extirpating the uterus, for instance, would It cannot be suggested, it is argued, that make it absolutely certain that no issue there is any difference between showing the could be borne. If proof like that now un- impossibility of issue by death and in any der consideration were admitted, upon what other way, and that, consequently, evidence principle could evidence showing that an is admissible to prove that a person named operation of the kind indicated had been in the will, whose issue are to take, and performed be excluded? And, if not ex- with regard to whose issue the question of cluded, what would prevent interested par- perpetuities arises, can have no issue ties from resorting to such or similar op- born after the testator's death, and conerations, if by a resort to them a mere sequently that in this case I ought equitable life estate could be converted into to admit evidence to show that the an absolute interest? It is wholly imma- lady had attained that age at which terial whether the inability to bear children it was impossible she could have isarises from natural or from artificial sue. If I thought this point could be taken, It is not the cause, but the fact, and that evidence was admissible, I should that alone controls the question, and the require it to be proved as a fact, as any single fact to which the law looks is death. other fact must be proved to the satisfaction Upon a case of first impressions, as this of the court; that is to say, I should not ascase is, we are bound to examine and weigh sume, by reading text-books' on the subject, the results that may lie beyond the narrow that I had mastered the whole subject, and horizon of an isolated controversy, and to that I was in a position myself to determine consider the moral aspects of the situation, such a question as this without the testiin reaching a conclusion which, when mony of experts. This question, then, is reached, may be fraught with such danger-whether such evidence is admissible. The ous and demoralizing consequences. It is question came before Lord Kenyon rather obviously not the province of courts of justice, and especially courts of equity, to encourage in any way a resort to a method like this for defeating a settlement or ter minating a trust. If the evidence set out in the record should be received, no line could be drawn restricting or marking its limits, and no satisfactory reason could be given for the exclusion of the other species to which we have alluded; and, if the latter sort of evidence be admitted, a court of

causes.

more than one hundred years ago, and he decided this exact point in the case of Jee v. Audley, 1 Cox Ch. Cas. 324. It is said that it is not a decision, but a mere dictum. I think it can be shown by a slight examination of the case to be a decision, and the ground of his holding that the will violated the rule against perpetui- . ties. In that case there was a gift to the children of John and Elizabeth Jee, which was limited to take effect upon an event

age; and it may be medical testimony could show that she was incapable of bearing a child, and evidence of that class might, therefore, consistently with the supposed principle, be adduced in the case of a woman of thirty, or even younger; and, if the principle is pursued in this way, there could be no ground for rejecting evidence in the case of a man. It is unnecessary to pursue that. of course, the probability is not great; but there are cases, I take it, in which it could be proved that it was impossible for a man

which was too remote according to the law | into the possibility of issue other than that as it then stood. The words used in the which arises from death. As I pointed out testator's will, which introduced this con- in the argument, if medical testimony was dition, were words which imported a gen- admitted in this case for the purpose of eral failure of issue. The gift, then, was to showing that the lady was past child-bearpersons who could then have been ascering, it would equally be admitted as a mattained, who must have come into being with-ter of law in the case of a woman of younger in lives in being,-that is to say, within the lives of John and Elizabeth Jee, because the limitation was to their children. But it was not a limitation to their children at birth. It was a limitation postponed as to vesting, when the case is examined, to the same point of time as that which was denoted by the indefinite failure of issue of the preceding taker. Consequently it ran thus: On the happening of an event which was too remote, I give to the unborn children of my kinsman, John, and his wife, Elizabeth, who were then living; not to to have children. The master of the rolls those children at twenty-one, not to those children at birth, but to those children, it this argument on grounds which appeared appears to me to have deliberately rejected might have been, some fifty years after the to him to be sufficient, and he speaks of the death of the testator. The point of the case turned on the words 'then living,' and the danger of the experiment, and the great inmaster of the rolls said that, if it had been convenience and the latitude which would be to the daughters of John and Elizabeth liv- introduced into the law. That is a decision ing at the time of his will, or the time of pronounced, as I have said, more than a his own death, the gift would have been century ago, and it is cited in the text-books It has also very good; but he decided the case on the without any adverse comment. ground that it was possible, in point of been mentioned by several eminent judges law, that John and Elizabeth should have since, and with approval. It may be that children born after the testator's death. The sometimes rhetorical phrases are applied argument was that there was no real possi- even by eminent judges to propositions of bility. I am using the words from the relaw. In Dungannon v. Smith, 12 Clark & port itself, no real possibility of their hav-F. 631, Lord Brougham in eloquent language ing any children born after the testator's described it as 'one of the corner stones of death, because they were both seventy years the law,' and I understand the lord chanof age; and, if the master of the rolls had cellor in the same case to have considered accepted the proposition that there was no the decision in Jee v. Audley, 1 Cox Ch. Cas. possibility of issue, then he must have de- 324, to be one of the landmarks." cided that the gift was good. But this is The testimony of the medical witnesses what he says: After speaking of the law being excluded, there is nothing in the recagainst perpetuities being one of the land- ord to show that there may not be children marks, he goes on: 'It is grown reverend born who would be entitled under the deed by age, and is not now to be broken in upcr. of trust to the estate in remainder. It I am desired to do in this case something therefore follows that Mrs. Ricards is not which I do not feel myself at liberty to do, entitled, under the assignment from her husnamely, to suppose it impossible for per- band, to the entire estate, if the deed of sons in so advanced an age as John and Eliz- trust is not void on the first ground we abeth Jee to have children; but, if this can have discussed. Having reached the conclube done in one case, it can be done in an- sion that the deed is not void on that other, and it is a very dangerous experiment, ground, none of the other questions so very and introductive of the greatest inconven-ably argued by the learned counsel for the ience to give a latitude to such sort of conJecture.' It is clear that Lord Kenyon was considering the case generally, and it is clear that if he had admitted the evidence in this case, or admitted any argument with regard to the impossibility of issue, it would have followed that he must, and that the court Decree affirmed, with costs; the costs to must, in every other case make an inquiry be paid out of the trust estate.

The court appellants need be alluded to. below dismissed the bill of complaint, and thereby upheld the validity of the deed of trust. We fully concur in that result, and accordingly affirm the decree in all particulars.