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enough appears in the answer to show that The judgment of the District Vourt is the debt exhibited in the petition as the reversed, with direction to proceed further foundation for the call was satisfied. The in accordance with this opinion. petition invited such an issue, and defendant was entitled to meet it. Therefore the All the Justices concur. der rrer to the seventh defense should bave been overruled.

Petition for rehearing denied.

MARYLAND COURT OF APPEALS.

2. Sidney RICARDS and Wife, Appts., Gloyd v. Roff, 2 Ohio C. C. 253; Whall v.

Converse, 146 Mass. 345, 15 N. E. 660; Re SAFE DEPOSIT & TRUST COMPANY Stone, 138 Mass. 476; Sears v. Choate, 146 of Baltimore.

Mass. 395, 15 N. E. 786; Pettingell v. Boyn

ton, 139 Mass. 244, 29 N. E. 655; Culbert(........Md.........)

son's Case, 76 Pa. 145; Sargent v. Baldwin,

60 Vt. 17, 13 Atl. 854; Hellman v. McWil1. A settlement of an estate in trust liams, 70 Cal. 449, 11 Pac. 659; Seventeenth will not be set aside because of the fail.

Ward Bldg. As8o. v. Fitzgerald, 8 Ohio N. ure of the settlor to understand its legal import, where he has ratified it by giving the P. 160; Soteldo v. Clement, 29 Ohio L. J. trustee directions as to the payment of pro- 384; Dial v. Dial, 21 Tex. 529. ceeds and filing a bill to procure the appoint- The mere objection of the trustee will not ment of a new trustee, —at least after the prevent a termination of the trust. lapse of more than ten years after its execu

Perry, Tr. $ 920; Slater v. Hurlbut, 146 tion. 2. Incapability of the life tenant of a

Mass. 308, 15 N. E. 790; Seventeenth Ward settlement in trust for the benefit of a Bldg. A880. v. Fitzgerald, 8 Ohio N. P. 160; woman and her children to bear children Brown v. Mercantile Trust & Deposit Co. cannot be proved by expert medical testimony 87 Md. 392, 40 Atl. 256. for the purpose of enabling the settlor and

The entire equitable or beneficial interest life benenciary to terminate the trust and cut off the children's contingent interests.

having become vested in the cestui que trust,

she is entitled to call upon the trustee for (July 2, 1903.)

a conveyance of the legal title.

Lee v. O'Donnell, 95 Md. 538, 52 Atl. 979; the Circuit Court of Baltimore City 209;. Hooper v. Felgner, 80 Md. 262, 30 Atl.

M2 dismissing their bill filed for the purpose 911; Perry, Tr. § 520; Owens v. Crow, 62 of vacating a deed of trust. Affirmed. Md. 491; Gloyd v. Roff, 2 Ohio C. C. 253;

The facts are stated in the opinion. Whall v. Converse, 146 Mass. 345, 15 N. E.

Messrs. Miles & Gorman, for appel- 660. lants:

The question as to whether or not there If neither the grantor, the trustee, nor the may be children born is one of fact, suscepticestui que trust understood the nature of ble of proof as any other fact is proved. the original deed of trust and its legal effect

Dial v. Dial, 21 Tex. 529. upon their property rights, then, in the ab

Messrs. John Hinkley and Louis J. sence of a revocable clause in the deed, it

Burger, for appellee: should be set aside upon the complaint of

The evidence fails to carry conviction that the grantor. Perry, Tr. § 104, note 47; Broun v. Mer.

a mistake had been made in the form of the

deed of trust. cantile Trust & Deposit Co. 87 Md. 392, 40

Second Nat. Bank v. Wrightson, 63 Md. Atl. 256.

81; McDonnell v. Milholland, 48 Md. 540; The trust can be terminated by the mutual consent of grantors, they being the only Keedy v. Nally, 63 Md. 311; Philpott v. Elparties in existence interested in the trust

liott, 4 Md. Ch. 273. property, both of them sui juris, with no

The absence of a power of revocation in a possibility of anyone coming hereafter who voluntary settlement, and the fact that the inay be interested, and the only objecting attention of the settlor was not called to party being the trustee.

that absence does not make a voluntary setBeach, Tr. § 761; Perry, Tr. 88 104, 920; tlement invalid.

Kerr, Fraud & Mistake, pp. 179, 180; HenNOTE.--For presumption as to power of elderly women to bear children, see, in this series, ry v. Armstrong, L. R. 18 Ch. Div. 668; Hall Bigley v. Watson, 38 L. R. A. 679.

v. Hall, L. R. 8 Ch. 430; Brett, Lead. Cas. 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 there

The 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 Hewitt's appeal, 55 Md. 509.

the following trust, namely: “He shall col. Impossibility of having issue will never lect the income and profits of the said trust be presumed.

property, and shall, first of all, during the List v. Rodney, 83 Pa. 483; Flora v. An- natural life of the said P. Sidney Ricards, derson, 67 Fed. 182; Read v. Fite, 8 Humph. apply and appropriate such profits and in328; Lawson, Presumptive Ev. p. 302; Mil- come to the proper support and maintenance ler v. Macomb, 25 Wend. 229; 2 Taylor, of the said P. Sidney Ricards and his wife, Med. Jur. 2d ed. p. 303.

Virginia S. Ricards, and for the proper supThe admission of medical testimony as a port and maintenance, as well as education, foundation for a decree establishing that a of any children that may be born of their woman will not bear children is contra marriage, without any claim and to the exbonos mores in the highest degree.

clusion of all rights that may be set up by Re Dauson, L. R. 39 Ch. Div. 161.

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 cov. years, 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

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 Balti. deed 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 par. and vacated. By that deed the plaintiff ties, appointing the trust company substi. granted, assigned, and conveyed to Charles'tuted trustee, and directed the new trustee to administer the trusts created by the deed | the face of these emphatic acts of ratificaunder the direction of the circuit court. tion, it would be useless to further consider The bill of complaint upon which this last- or discuss the averment of mistake. We named decree was founded was signed by may add, however, that, inasmuch as the both Ricards and his wife. In March, 1902, deed of trust was executed as long ago as Ricards gave to Lake, trustee, and to his August 4, 1890, and no attempt was made to successor, an order directing the whole of impeach it until August 11, 1902, such a the income arising from the trust estate to long delay and acquiescence, under the cir. be paid to his (Ricards') wife for their joint cumstances heretofore stated, are a comsupport and maintenance. After the events plete bar to relief on the ground of mistake. thus far narrated had transpired, the bill of Lewiti's Appeal, 55 Md. 517; Beard v. Hubcomplaint now before us was filed, as we ble, 9 Gill, 431. have said, in August, 1902.

were

We now come to a much more serious and The grounds upon which it is sought to delicate question. Is it competent to the set aside the deed of trust are: First, that plaintiffs to prove by medical testimony the settlor misunderstood the scope and pur- that Mrs. Ricards is incapable of bearing port of the conveyance in this: That he be children? It may be conceded that, where lieved it was intended to, and did in fact, all the parties in interest are in being and transfer his interest in the trust estate to all are sui juris, they may agree to terhis wife absolutely; secondly, that, inas-minate the trust, and, if no reason appears much as the possibility of his wife having for denying their request, a court of equity issue was extinct, and inasmuch, therefore, will terminate the trust. Beach, Tr. § 761. as there could be no persons entitled in re- Lying behind this legal proposition is the mainder under the terms of the deed of inquiry above propounded, because, unless trust, the trusts ought to be terminated up there is no possibility of Mrs. Ricards havon the joint request of the settlor and the ing issue, and unless this physical condionly possible beneficiary,—the wife,-she tion can be lawfully proved in the way and having received from her husband, shortly by the means by which it has been attempted before the bill was filed, an absolute assign- to be established in this case, all persons ment of all his interest in the trust prop- who might have an interest in the trust erty. It must be noted at the outset that funds, and who, if in being, would have such the case is entirely free from any charge of interest, are not in being, and the rights fraud, misrepresentation, or deceit.

which they would have, on coming into be With 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 Dauson, 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 cáse 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. In lerty rights to depend upon so precarious a

case

basis. But the proposition here goes, conscience would be made the instrument further. It does not contemplate reliance for the promotion or encouragement of acts on a simple presumption. Physical condi most manifestly subversive of good morals. tions have been testified to by medical wit. Even had the question as to the admissinesses who have expressed the opinion that bility of this kind of testimony been dethere was no possibility of the life tenant cided in other jurisdictions adversely to the being the mother of children. Can such ev. view we take, we should feel constrained, idence be received in a court of justice to upon grounds of a sound public policy, to affect the devolution of property, or to di- exclude the testimony in a contention like vert the course marked out for it to follow? | this. The admission of such evidence in a

In Re Dauson, 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, beties 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 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

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 attaine that age at which terial whether the inability to bear children it was impossible she could have isarises from natural 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 provinoe of courts of jus. more than one hundred years ago, and tice, and especially courts of equity, to en- he decided this exact point in the case of courage in any way a resort to a method Jee v. Audley, 1 Cox Ch. Cas. 324. It is like this for defeating a settlement or ter said that it is not a decision, but a mere minating a trust. If the evidence set out dictum. I think it can be shown by a in the record should be received, no line slight examination of the case to be a decould be drawn restricting or marking its cision, and the ground of his holding that limits, and no satisfactory reaso could be the will violated the rule against perpetui: • given for the exclusion of the other species ties. In that case there was a gift to the to which we have alluded; and, if the lat children of John and Elizabeth Jee, which ter sort of evidence be admitted, a court of was limited to take effect upon an event

no

case

or

causes.

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 ascer-ing, 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

age; and it may be medical testimony could lives of John and Elizabeth Jee,- because show that she was incapable of bearing a the limitation was to their children. But child, and evidence of that class might, it was not a limitation to their children at therefore, consistently with the supposed birth. It was a limitation postponed as to principle, be adduced in the case of a woman vesting, when the case is examined, to the of thirty, or even younger; and, if the prinsame point of time as that which was deciple is pursued in this way, there could be noted by the indefinite failure of issue of no ground for rejecting evidence in the case the preceding taker. Consequently it ran of a man. It is unnecessary to pursue that. thus: On the happening of an event which Of course, the probability is not great; but was too remote, I give to the unborn chil. there are cases, 1 take it, in which it could dren of my kinsman, John, and his wife, be proved that it was impossible for a man Elizabeth, who were then living; not to to have children. The master of the rolls those children at twenty-one, not to those appears to me to have deliberately rejected children at birth, but to those children, it this argument on grounds which appeared 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 convenience and the latitude which would be

danger of the experiment, and the great inmaster of the rolls said that, if it had been introduced into the law. That is a decision to the daughters of John and Elizabeth liv. 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 very good; but he decided the case on the without any adverse comment. It has also 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 re- law. 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 upor. 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 inconvenably argued by the learned counsel for the ience to give a latitude to such sort of con- appellants need be alluded to. The court Jecture.' It is clear that Lord Kenyon was below dismissed the bill of complaint, and considering the case generally, and it is clear thereby upheld the validity of the deed of that if he had admitted the evidence in this trust. We fully concur in that result, and rase, or admitted any argument with regard accordingly affirm the decree in all particuto the impossibility of issue, it would have lars. 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.

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