author: Powers, J.,

text:
    SAMUEL T. JONES et al. v. KATHERINE ARCHER ENDSLOW et al.
    [No. 823,
    September Term, 1973.]

      Decided November 27, 1974.

      The cause was argued before Moylan, Powers and Gilbert, JJ.

      Richard C. Murray for appellants.

      T. Carroll Brown and Franklin S. Tyng for appellees.
   Powers, J.,

delivered the opinion of the Court.

The question in this case is whether the will of Charles S. Archer, Sr. created a trust, and, if so, did the trustee take a fee simple title to real estate, with power to sell.

Mr. Archer died on 10 July 1963. He and his wife, who predeceased him by six weeks, owned a farm of some 122 acres in Harford County, and a relatively small amount of personal property. They had four children, Daniel Trainor Archer, James Howard Archer, Katherine Archer Endslow, and Charles S. Archer, Jr. All were adults, and all had children.

Over a period of a year or more before September, 1961, there had been family discussions regarding the wishes of the parents for the disposition of their property. All of the children except Trainor, the oldest, took part in these discussions. The parents expressed their concern for Trainor, who was in poor health and had limited earning ability, an invalid wife, and a handicapped son. In addition, there were one or more judgments against Trainor, and he owed other debts. The parents contemplated giving all of their property to Trainor outright, but Charles, who was a member of the bar, employed by a bonding company in Baltimore, expressed his disapproval, and said that if the other three children were to be disinherited, he wanted the parents to get an outside lawyer to prepare their'wills.

The family discussions continued. The primary wish of the parents was to be assured that Trainor would always have a home and a living. As part of that assurance, they felt that it was necessary to protect Trainor against his own shortcomings. Charles suggested a “spendthrift trust”, and advised the family that, to avoid embarrassment to Trainor, such a trust could be created without using the specific words, and that it was not necessary to designate a trustee in the will. This suggestion was approved by the parents, and by Howard and Katherine. Charles was asked to prepare the wills. He did so. They were executed on 6 September 1961, with Howard and Katherine as witnesses. Charles was also present.

Upon the death of Mrs. Archer, Mr. Archer, Sr. became the sole owner of their property. His will, admitted to probate in the Orphans’ Court for Harford County, provided, after a clause leaving everything to his wife:

“If my devoted wife, Viola Mary Archer, should pre-decease me, then I give, bequeath, devise and convey all my real, personal and mixed property, wheresoever situated, as follows:
First, to my oldest son, Daniel Trainor Archer, if he is living at my demise, for life, the income therefrom to be paid into his hands and not into the hands of another.
Second, upon the death of my oldest son, Daniel Trainor Archer, I give all my real, personal and mixed property, wheresoever situated, as follows:
1. One-fourth (1/4) of my entire estate to my grandson, William T. Archer, son of Daniel Trainor Archer, for his full and sole enjoyment.
2. One-fourth (1/4) of my entire estate to my son, James Howard Archer, for his full and sole enjoyment, if living, otherwise his one-fourth (1/4) share shall be divided among his children, share and share alike.”

There followed paragraphs identical with No. 2, leaving one fourth each to Katherine and to Charles, and an additional paragraph appointing Charles executor.

With the closing of the administration of the personal estate in November 1964, a petition was filed in the Circuit Court for Harford County signed by Charles, individually and as executor, and by Katherine, Trainor, Howard, and by Trainor’s son William, described as constituting all of the heirs and persons named in the will of the decedent, and stating:

“That under the Last Will and Testament of Charles S. Archer, Sr., a spendthrift trust consisting of all of the real, personal and mixed property in the estate was created for the benefit of Daniel Trainor Archer, one of the within named petitioners. A copy of the probated Will is filed herewith.”

The petition then recited that the will failed to provide for the appointment of a trustee to administer the trust and prayed that the court pass an order “appointing a trustee or trustees to administer said Spendthrift Trust”. The court appointed C. Stanley Blair, a member of the bar, who had acted as attorney for the estate.

By common acquiescence, the trustee permitted Trainor, who lived on the farm, to collect any income it produced, and retain what was left after paying taxes and insurance premiums, without accounting for these items through the trustee. The trustee invested the money from the personal estate, and paid the income to Trainor.

In 1969 Mr. Blair filed a petition stating that he desired to resign as trustee and asking that he be released and discharged. At the same time there was filed a petition by all of the same individuals who originally petitioned for the appointment of a trustee, asking the court to appoint Charles S. Archer, Jr. as substitute trustee in the place of Mr. Blair. The court entered an order appointing Charles S. Archer, Jr. “to act as trustee of the Spendthrift Trust provided for in the Last Will and Testament of Charles S. Archer, Sr.”. Charles has continued to act to the present time, following the same procedure initiated by his predecessor.

The case before us arose when, on 6 March 1972, Charles, as trustee, entered into a contract with Samuel T. Jones and Sarah S. Jones to sell the farm for the sum of $98,000. On 28 March 1972, Katherine, joining her son and two daughters as plaintiffs, filed a bill of complaint against Charles as trustee and included as defendants, Trainor, Trainor’s son William, Howard, and Mr. and Mrs. Jones. A later amendment added Charles in his individual capacity.

The bill of complaint recited the history of the property, the estate, and the trust. It alleged that Daniel Trainor Archer holds a legal life estate in said property and that there is no need for a trustee. It alleged that Charles, as trustee, entered into a contract with Mr. and Mrs. Jones, and said that Charles exceeded his authority and violated his duties as trustee in selling the farm and in selling it for a sum that was grossly inadequate and on terms not advantageous to those having an interest in it. The complaint also alleged that because of his activities and poor judgment Charles should be removed as trustee. The plaintiffs prayed that the sale be enjoined, and that they be awarded monetary damages against Charles.

The court issued an interlocutory injunction against consummation of the contract of sale.

Testimony was heard before the chancellor on 19 April 1972, 20 December 1972, 23 February 1973, and 22 June 1973. On 29 August 1973 the chancellor filed a memorandum opinion, which was implemented by a decree filed on 17 September 1973. The decree adjudged that by his will the testator simply created a legal life estate in all of his residuary estate and property for the benefit of Trainor; permanently enjoined consummation of the contract of sale; found that Charles had properly performed his duties as trustee; and denied the claim of Katherine and her children for damages. Appeals from that decree were filed by Charles S. Archer, Jr. and by Mr. and Mrs. Jones.

The evidence showed that around the middle of 1971, members of the family began to discuss selling the farm. Trainor wanted it to be sold because he was not able to make a go of it and was sustaining losses. He preferred that it be sold and the proceeds invested in some other way. Katherine testified at one of the hearings that she did not not want to see it sold but, if it were to be sold she would like to see it remain in the family. In a letter, addressed apparently to all three brothers, dated 17 August 1971, Katherine thanked them for their offer of terms for an agreement to sell the property to her son. She proposed, in considerable detail, that the son would be willing to buy the farm for $85,000, with 57c or $4,250 in deposits, and with an additional sum of $12,750 in cash at settlement, in approximately six months, leaving $68,000 to be paid over a period of five years or ten years, bearing interest at the rate of 67c. An attorney retained by Charles as trustee responded to Katherine, advising her of the terms of an offer from another source at the same price but with slightly higher payments. The letter advised that if she or her son wished to purchase the property on exactly the same terms, they could do so. On 30 August 1971, Katherine wrote to Charles expressing her thought that there was no need for urgency. She mentioned that Trainor seemed obsessed with the idea of selling and realized that Charles had been under great pressure to do so. She pointed out that the intent of the will, as repeatedly told to her by her mother, was that Trainor would have a home and a roof over his head until his death. She went on to say that since the interest resulting from the sale should amply provide such security, she certainly would not stand in the way of selling. She said further that she had learned of an appraisal of the property, and felt that it was worth about $90,000. She said:

“Charles, you are the trustee by our approval, but you have the obligation to get the highest market price in this sale.”

Katherine suggested that her son be given an option for six months to purchase the farm for $90,000 with 10% deposit and settlement 90 days thereafter, with a total of 30% down at settlement. She added, “No one can ever rightfully criticize if you sell at appraisal price.”

Some correspondence was exchanged between counsel for Charles and counsel for Katherine and, after a brief withdrawal of an offer to sell, another offer was made to Katherine. She responded in a letter directly to Charles, dated 12 October 1971, in which she stated: “I am interested in seeing the property remain in the family and being improved creditably to the memory of our parents. So long as there is a member of the family interested I shall not approve the sale of the property to another.” She then made a “final counter offer”, based on additional appraisal data which she referred to, and offered $87,000, with settlement to be on 15 May 1972.

By letter of 1 November 1971, counsel for Charles as trustee wrote to Katherine advising her that the trustee intended to sell the property forthwith; asserting that the trustee had authority to do so without the approval of any beneficiary or of the court; and suggesting to Katherine that she take such steps as she deemed requisite to enjoin the sale. Counsel’s letter went on to say that the offer of $87,000 as the sale price was acceptable but that the settlement terms and other conditions were not. One of the conditions previously stated by Katherine which counsel rejected was that her son’s wife should not be involved in the transaction.

The same appraiser whose preliminary data had indicated to Katherine an approximate value of $90,000, submitted his written appraisal dated 23 December 1971 in which he gave the value of the farm as $84,300.

In his memorandum opinion the chancellor, looking at the language of the will, observed that it appears to provide for Daniel Trainor Archer a life estate in all of the real, mixed and personal property of the testator. He went on to say that he would have little difficulty in holding that there was no trust, were it not for the language, “income to be paid into his hands and not into the hands of another”. He commented that even assuming that the intention of the testator was to create a spendthrift trust, there is no indication that the subject matter of the trust was to be other than the life estate itself or the income interest in the land.

In spite of the difficulty, however, the chancellor concluded that the will does not provide for a trust, spendthrift or otherwise. The decree which followed the filing of this memorandum opinion did not leave open any possibility of a spendthrift trust. It is, of course, the decree and not the opinion of a court which governs. Hudson Bldg. Supply Co. v. Stulman, 258 Md. 304, 265 A. 2d 925 (1970).

The chancellor commented further on the evidence showing that Katherine appeared to acquiesce in the power of sale over the property up until the last moment and then withheld her consent. He said, “[T]he Court does not believe that the conduct of the parties can in any way alter or increase the powers vested in the Trustee by virtue of the instrument.” We fully agree. Short of estoppel, which was not shown, or other binding action, a party is free to change his legal position.

All of the testimony in the case shows that it was the desire of the testator to leave his property in such a way as to be sure that Trainor would, as long as he lives, receive the entire benefit of it, including a place to live and the means of producing an income. It was just as much a part of that intention that what he wanted to create for Trainor would be protected against any claim by a creditor and against Trainor’s own folly or ineptitude.

That accomplished, the final desire of the testator was to be sure that upon Trainor’s death, each of his children would receive an equal share of the family property, with Trainor’s son William standing in his stead.

All of the members of the family agree that this was the intention of their parents. They agree, also, that Charles, as the draftsman of the will, purposely avoided the words “spendthrift” and “trust”, and the designation of a trustee, all of which would have expressed that intention more clearly, but that it was his opinion, and his advice to the testator, that the words he used were sufficient to accomplish that intention. The intention of the testator in this case may be ascertained beyond doubt from the will, read in the light of the surrounding circumstances. To construe the will as creating simply a conventional life estate is not to construe, but to reject and nullify the testator’s words, “the income therefrom to be paid into his hands and not into the hands of another”. Those words closely parallel words used in the will construed in Smith v. Towers, 69 Md. 77, 14 A. 497 (1888), the first case in Maryland involving what has come to be known as a spendthrift trust.

Because we conclude that the only way to accomplish the testator’s purpose is through a trust, the device by which equitable title may be separated from legal title, and that the trust must continue for the duration of Trainor’s life, subject to the restraints on alienation which are known, for convenience, as a spendthrift trust, we hold that the will of Mr. Archer, Sr. created such a trust.

In Smith v. Towers, supra, the Court of Appeals said, at 83-84:

“The testator devised certain real estate to his friend John R. Fountain in trust to collect the rents and profits, and to pay the same to his son Robert, ‘into his own hands, and not into another, whether claiming by his authority or otherwise,’ and upon his death to convey said real estate to such children of his son Robert as may be living at the time of his death.
“Upon the construction of this clause of the testator’s will two questions arise: First, did the testator mean to give the income of the property to his son to the exclusion of his creditors, and secondly, if so are the terms and provisions of the will effectual to carry out this intention. There can be no difficulty whatever as to the first point. He not only gives the legal estate to the trustee, but he directs in express terms that he shall pay the income into the hands of his son and not into the hands of any other person, whether claiming by his authority, or in any other capacity. Here then, is an express provision, that the income shall be paid to his son, and an express prohibition against paying it to any other person. If the income in the hands of the trustee is liable to the claims of creditors, the trustee it is plain could not carry out the trust. So construing this will as we do, and it is not we think susceptible of any other construction, the testator meant beyond all question that the income should be paid into the hands of his son, to the exclusion of all other persons, whether claiming as alienees or as creditors.”

Referring to language in a will before it in Johnson v. Stringer, 158 Md. 315, 148 A. 447 (1930), the Court of Appeals said, at 322-23:

“This language is the identical language held by this court to have created a spendthrift trust in the case of Smith v. Towers, 69 Md. 77. This case was the first expression of this court on the question of a spendthrift trust, and is a leading case on that subject. This decision was in 1888, since which time it has been settled that a spendthrift trust may be validly created in Maryland if appropriate language be used; and in the numerous subsequent cases in this court, considering the subject of a spendthrift trust, the questions have not been as to the power of the testator to create such a trust, but as to his intention to do so, and the sufficiency of the language used to give effect to such intention.”

In Griswold, Spendthrift Trusts, § 262 (2d ed. 1947), the author says:

“The phrase ‘spendthrift trust’ is recognized as simply a convenient term used to indicate a trust in which the interest of the beneficiary is subject to restraints on alienation, and it has no significance in itself. It is not necessary that the beneficiary be a spendthrift.
“Conversely, it is not enough for the creation of a spendthrift trust to show that the beneficiary is in fact a spendthrift.”

Section 264 says:

“It is established in the cases, and quite rightly, that where spendthrift trusts are valid no particular form of words is required to create such a trust. * * * The intention to establish a spendthrift trust ought clearly to appear in the instrument creating the trust, for, as more than one court has observed, any other rule ‘would be in effect saying that all life estates of like character, given in trust, are incapable of being alienated.’ There should be ‘specific language declaring the trust a spendthrift trust or language from which such an interest might reasonably be inferred.’ A mere trusteeship is not enough to make a spendthrift trust.”

In II Scott, Law of Trusts (3d ed. 1967), the author says in § 151:

“Trusts in which the interest of a beneficiary cannot be assigned by him or reached by his creditors have come to be known as ‘spendthrift trusts.’ The term is not altogether felicitous, since it is quite immaterial whether or not the beneficiary is in fact a spendthrift. The term does, however, connote the general idea that the purpose of the settlor in creating such a trust is to protect the beneficiary against his own folly or inefficiency or misfortune. It is useful, at any rate, as a short phrase indicating that the interest of the beneficiary is subject to a restraint on alienation, whether the restraint is imposed by the terms of the trust or by statute.”

and in § 152, Scott says:

“Where the owner of property creates a trust under which the income is payable to a beneficiary for life and it is provided that the interest of the beneficiary shall not be transferable by him and that his creditors shall not be permitted to reach it, the question arises whether these direct restraints on alienation are valid. Where a legal life estate is created, it is generally held that a direct restraint on alienation, voluntary or involuntary, is invalid. The owner of the life estate, in spite of such a provision, can transfer his interest and his creditors can reach it. The question is whether similar provisions as to the right of a beneficiary to the income under a trust are valid.”

To have a spendthrift trust, there must, of course, be a trust. Without the words of restraint on Trainor’s life estate we would be unable to find the intent to create a trust. But those words, in light of surrounding circumstances existing at the time of execution of the will, make a trust imperative, and must be given effect.

In Waesche v. Rizzuto, 224 Md. 573, 168 A. 2d 871 (1961), the Court of Appeals, after referring to the elements necessary to create an express trust, said, at 583:

“Whether or not a trust is created by the terms of a will is a question of intention, technical words not being required. It is enough that the intention to create a trust is apparent. Jarman on Wills (5th ed.), §§ 355, 356; Coudon v. Updegraf, 117 Md. 71, 78.
“In that case this Court stated that, in the interpretation of wills ‘the cardinal canon around which all others center is this, that the intention of the testator when ascertained from the whole instrument, or from the instrument as read in light of surrounding circumstances existing at the date of its execution, must be given effect if that intention does not antagonize or conflict with some rule of law or property.’ Henderson v. Henderson, 64 Md. 185; Darden v. Bright, 173 Md. 563; Robinson v. Mercantile Trust Co., 180 Md. 336; Jones v. Holloway, 183 Md. 40; Robb v. Berryman, 215 Md. 161; 95 C.J.S., Wills, §§ 590, 592.”

The rule has also been expressed:

“Whether a trust has been perfectly created is largely a question of fact in each case, and the court, in determining the fact, will give effect to the situation and relation of the parties, the nature and situation of the property, and the purposes or objects which the settlor had in view.” Sieling v. Sieling, 151 Md. 536, 551, 135 A. 376 (1926), quoting from Mills v. Hayden, 128 Wash. 67.

The Court of Appeals went on to say in Sieling v. Sieling, supra, at 551:

“No technical words or language are required for the creation of a trust, if the language and acts of the parties clearly indicate that such was their intention. Neither does the writing have to be in any particular form.”

In Brandt, Inc. v. Y. W.C.A., 169 Md. 607, 182 A. 452 (1936), a testator left his residuary estate to the Y.W.C.A., a corporation, in trust, to use the income for the use and benefit of the body corporate in such manner as the officers and directors shall deem proper. The Y.W.C.A. contracted to sell a parcel of real estate, one of the investments of the estate. The purchaser was unwilling to settle because of uncertainties in the title. In a bill for specific performance the Y.W.C.A. contended that it had absolute title to the land, that there was no separation of the legal estate from the beneficial enjoyment, and no trust existed.

The Court of Appeals agreed, saying, at 611:

“The rule with respect to such trusts, so-called, in this state, as stated by Mr. Miller, Construction of Wills, p. 458, is that, ‘the same person cannot be both trustee and cestui que trust; in a trust there must be a separation of the legal estate from the beneficial enjoyment, and a trust cannot exist when the same person possesses both; if the entire legal and equitable interests happen to meet in the same person, the equitable is ordinarily merged in the legal.’ ”

In Sands v. Church, etc., 181 Md. 536, 30 A. 2d 771 (1943), two members had made a gift of bonds to their church, and expressed the wish that the income would be used for the payment of the ground rent on the church, property. When the church merged with another, and sold its original property, the heirs of the donors claimed that the bonds were held in trust for a specified purpose, and when that purpose could no longer be served, the bonds reverted to them. The Court of Appeals held that there was no trust. It said, at 541:

' “It was urged by counsel that the word ‘wish’ sometimes has the effect of creating a trust. It is undoubtedly true that no technical words are required for the creation of a trust, provided that the language and the circumstances clearly show, that such was the intention. Whether or not a trust has in fact been created in a particular case by the use of precatory words is, in the final analysis, a question of intention. One of the fundamental rules of construction is that the intention of the donor must govern if consistent with the rules of law, and this intention must be gathered from the entire instrument. It is recognized that where a writing imports the granting of absolute ownership to the donee, and there are additional words expressing the donor’s wish as to the use of the property, no precatory trust has been created. Nunn v. O’Brien, 83 Md. 198, 34 A. 244; Pratt v. Trustees of Sheppard & Enoch Pratt Hospital, 88 Md. 610, 622, 42 A. 51, 54; Bennett v. Baltimore Humane Impartial Society, 91 Md. 10, 19, 45 A. 888, 889; Sieling v. Sieling, 151 Md. 536, 551, 135 A. 376, 382. It is also well established that a person cannot be both the trustees and the cestui que trust. It is obvious that in order to create a trust the legal estate must be separated from the beneficial enjoyment, and therefore a trust cannot exist where the same person possesses both.”

Whenever the purpose of the testator or settlor to create a restricted beneficial enjoyment of an estate is found in the words used in the trust instrument, Maryland has consistently held the accomplishment of that purpose to be paramount. Kirkland v. Mer.-Safe Trust Co., 218 Md. 17, 145 A. 2d 230 (1958).

We have shown that the clearly expressed purpose of the testator with respect to his son Trainor compelled the creation of a trust to separate, during Trainor’s life, the equitable estate from the legal estate, and required that there be a trustee to hold the legal estate. The will in the case before us did not name a trustee. Charles had advised that it was not necessary, and that the court would appoint a trustee. Charles was right. Equity will not permit a trust to fail because a trustee is not specifically named. Bishop v. Safe Dep. & Trust Co., 170 Md. 615, 620, 185 A. 335 (1936). The appointments of the original trustee, and later a successor trustee were proper.

This brings us to the question, “what legal title did the trustee take? ”. The answer is critical to the real dispute in this case. We hold that the trustee did not take a legal fee simple title in the real estate, but took a legal estate pur autre vie, for the duration of Trainor’s life, and no more. We assume, though we need not and do not decide, that the trustee holds legal title to the personalty, I Scott, Law of Trusts § 88.1 (3d ed. 1967), and that the title to the remainder in the real estate reposes, not divided between equitable and legal interests, in the remaindermen in whom it vested under the will.

Restatement (Second) of Trusts § 88 (1959), says:

“(1) Unless a different intention is manifested, the trustee of an interest in land takes such an estate, and only such an estate, as is necessary to enable him to perform the trust by the exercise of such powers as are incident to ownership of the estate.”

Illustrating the extent of the estate taken by a trustee in land, the Restatement gives, among others, these illustrations:

“3. A, the owner of Blackacre, transfers Blackacre to B in trust to pay the income to C during C’s lifetime and with power to sell Blackacre and invest the proceeds and pay the income to C for life. B takes an estate in fee simple in trust.”
“6. A, The owner of Blackacre, devises Blackacre to B and his heirs in trust to pay the income to C during C’s lifetime. In the absence of evidence of a different intention of the testator, B takes an estate for the life of C in trust.”

I Scott, Law of Trusts § 88 (3d ed. 1967) agrees, thus stating the rule:

“It is frequently stated in the books that where land is conveyed in trust, inter vivos or by will, the trustee takes such an estate and only such an estate as is necessary to enable him to perform the trust.”

In 54 Am. Jur. Trusts § 98 (1945), we find:

“From the viewpoint of the common law, as modified by the Statute of Uses, the trustee has full legal title for the term for which the property is conveyed to him, in so far as his title is not executed under the Statute of Uses; but from the viewpoint of equity jurisprudence and modern law, the legal estate of a trustee is measured by the purposes of the trust and their performance, and not by the presence or absence of words of inheritance. * * *
“A trustee has the legal title in fee, where a fee is necessary to the execution of the trust, or a life estate, where that is necessary * * *.”

The same principle was applied in Brillhart v. Mish, 99 Md. 447, 58 A. 28 (1904); Numsen v. Lyon, 87 Md. 31, 39 A. 533 (1898); and Long v. Long, 62 Md. 33 (1884), and well ■ summarized by Mr. Miller in his work on Construction of Wills § 203 (1927), where he says:

“Whether an estate given to trustees in any particular case is a fee simple estate, or any other estate, does not depend upon whether the testator has used words of limitation or expressions adequate to carry an estate of inheritance, but whether the exigencies of the trust as they appear on the face of the will, without reference to events subsequent to the testator’s death, demand the fee simple, or can be satisfied by any and what less estate. The trustees take exactly that quantity of interest which the purposes of the trust require. The extent of the legal interest of a trustee in an estate given to him in trust is measured not by words of inheritance or equivalent terms, but by the objects and extent of the trust upon which the estate is given. Whenever a trust is created, a legal estate sufficient for the purpose of the trust shall if possible be implied in the trustee, whatever may be the limitations in the instrument, whether to him and his heirs or not. And on the other hand although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried farther than the complete execution of the trust necessarily requires.”

We hold that the testator did create a trust of all of his property, real, personal and mixed, for the life of his son Trainor, subject to the restrictions upon voluntary or involuntary alienation and upon anticipation by the beneficiary, which are associated with what is commonly known as a spendthrift trust. The equitable title thus restricted is in Trainor for his life. With respect to the real property, the trustee holds legal title to a life estate only.

It follows that the trustee has no power to sell the fee simple interest in the real property because he does not have title to the fee simple interest. His attempt to do so was a nullity, the knowledge of which is equally chargeable to the appellants Mr. and Mrs. Jones.

It appears from the record that Charles, as trustee, was advised by his counsel that he had authority to sell the real property without the approval of any beneficiary or of the court, and there is no intimation in the record that Charles acted in any way other than in the conscientious discharge of what he understood to be his duty.

All of the members of the family did give consideration over a period of several months to a sale of the property, so that the proceeds could be reinvested in another form, the yield of which might be more advantageous to the life beneficiary. Had all parties agreed to a sale and participated in it, we know of no reason why it could not have been accomplished. The impression that the trustee had authority to sell without approval of any beneficiary or of the court probably arose from a misconstruction of Maryland Rule V77. The expansion of fiduciary powers which Rule V77 accomplished did not confer upon a trustee a power to sell something he does not have.

The decree appealed from was in error in holding that the will created a legal life estate in Daniel Trainor Archer. We hold that the will created a trust for the life of Trainor for his benefit, subject to the spendthrift restriction. We agree that Charles, as trustee, had no power to sell a fee simple interest in the real estate and that his attempt to do so was a nullity. We agree, also, that Charles, as trustee, has properly performed his duties, and that there is no basis for removing him or assessing damages against him.

Appellees made two motions to dismiss this appeal. Both motions will be denied.

Motions to dismiss denied.

Decree modified in accordance with this opinion and, as modified, affirmed.

Costs in this Court and below to be paid by the trustee from the corpus of the personal estate in his hands.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    MOLLIE V. TEMPLETON v. COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY, MARYLAND
    [No. 696 (on remand),
    September Term, 1973.]

      Decided December 13, 1974.

      Before Orth, C. J., and Davidson and Moore, JJ.
   Moore, J.,

delivered the opinion of the Court.

By Order dated November 13, 1974, the Court of Appeals of Maryland issued a writ of certiorari to this Court in this case in which our opinion, filed on June 19, 1974, was reported at 21 Md. App. 636, 321 A. 2d 778; and it was further ordered that the case be remanded to this Court for reconsideration of our opinion in the light of the opinion of the Court of Appeals in Northampton Corporation v. Prince George’s County, 273 Md. 93, 327 A. 2d 774, in which the judgment of this Court in an opinion reported at 21 Md. App. 625, 321 A. 2d 204, filed on June 17, 1974, was reversed.

We have carefully reviewed the opinion of the Court of Appeals in Northampton and we conclude that while twm corrections in our opinion in this case are necessitated, such corrections do not affect the merits and we therefore adhere to our original determination in which we affirmed the judgment of the Circuit Court for Prince George’s County.

As the opinion of the Court of Appeals emphasizes, the zoning and planning powers of Prince George’s County, Maryland, in that portion of the County which lies in the Regional District, are those granted by the Regional District Act, Chapter 780 of the Laws of 1959, as amended, Prince George’s County, Md., Code of Public Local Laws §§ 59-61 through 59-105 (1963), and not those granted by the Prince George’s County Charter, effective December 3, 1970. The Court of Appeals therefore held in Northampton “that the proper procedure was that mandated by § 59-104 of the Regional District Act”:

“In Prince George’s County, no application for a map amendment or special exception, which is contested, shall be granted or denied except upon written findings of basic facts and written conclusions.”

Accordingly, we correct by deleting in its entirety footnote 3 of our opinion in Templeton at 21 Md. App., page 640, 321 A. 2d page 780.

Secondly, in rejecting appellant’s contention that the adoption by the District Council of the Zoning Hearing Examiner’s findings of fact and conclusions of law was improper, 21 Md. App., page 643-4, we quoted in the conclusory portion of our opinion on that point the language of this Court in Northampton, 21 Md. App. 631-2. It was there held that where the Council has delegated the duty of making findings of fact and recommendations pursuant to § 771 of the Charter to the Zoning Hearing Examiner, the Council may comply with the provisions of § 707 (a) of the Charter (requiring “specific written findings of basic facts and conclusions of law”) by adopting the Examiner’s findings and conclusions.

Inasmuch as § 59-104 of the Regional District Act above quoted is controlling — and not the provisions of the Charter — our above reference to Northampton is inapposite and, in accordance with the opinion of the Court of Appeals, must be deleted.

Northampton was not, however, the foundation for our determination that appellant’s contention was without merit. As our prior opinion discloses, 21 Md. App., page 643, 321 A. 2d, page 782, we placed initial reliance upon the opinion of the Court of Appeals in Montgomery v. Board of County Commissioners, 256 Md. 597 (1970) where the Court, in an opinion by Judge Barnes, addressed itself to the argument there made that it was improper for the District Council to adopt the findings in the report or recommendations of the Planning Board or of the Technical Staff rather than to make specific findings itself. Judge Barnes then stated:

“Although this is not a practice to be encouraged, we are not prepared to rule, as a matter of law, that the District Council may not, in a specific case, comply with the statutory requirement to make written findings of basic facts and conclusions by incorporating into its order specific findings of basic facts and conclusions of either the Planning Board or of the Technical Staff by specific reference to those findings.”

Upon the reconsideration ordered, it is our conclusion that the record in the instant appeal represents a proper case for the adoption by the District Council of the findings and conclusions of the Examiner in discharging its responsibility under § 59-104, supra.

Upon reconsideration as ordered by the Court of Appeals of Maryland, judgment affirmed; costs to be paid by the appellant.


author: Orth, C. J.,

text:
    MAX SOKOL and LOUIS ELIASBERG, Trustees v. RALPH A. NATTANS et al.
    [No. 744 (on motion to dismiss),
    September Term, 1974.]

      Decided December 13, 1974.

    The cause was argued before Orth, C. J., and Morton, Thompson, Moylan, Powers, Gilbert, Menchine, .Davidson, Moore and Lowe, JJ.

      Francis D. Mumaghan, Jr., and Benjamin Rosenberg, on motion to dismiss, for appellees.

      Delveme A. Dressel and Paul E. Burke, Jr., in opposition to motion, for appellants.
   Orth, C. J.,

delivered the opinion of the Court.

I

By motion timely filed, Ralph A. Nattans, Emanuel Hecht, Arthur Nattans, Roger Nattans, Albert Lowenthal, Jean Arthur Lowenthal, Elinor S. Multer, Aline H. Johnson, Barbara H. Cleveland, Paul W. Schatzkin, Arthur G. Schatzkin, Dorothy R. Schatzkin and Audrey N. Katz, appellees and cross-appellants, hereinafter referred to as appellees, moved to dismiss the appeal of Max Sokol and Louis Eliasberg, two of the Trustees under the Will of Arthur Nattans, deceased, appellants and cross-appellees, hereinafter referred to as appellants. Maryland Rule 1036 c. The ground for the motion was that the appeal was not allowed by law. Rule 1035 b (1). Appellants filed an answer giving reasons why the motion should be denied and the appellees filed a motion ne recipiatur to the answer which appellants answered. At the request of this Court, a memorandum of law was filed by appellees and by appellants. The motions were heard by the Court en banc. We deny the motion to dismiss the appeal and the motion ne recipiatur to the answer thereto. In determining the motion to dismiss the appeal, however, we have not considered any allegations of fact set out in the answer to the motion to dismiss which do not appear in the record submitted to us.

II

Arthur Nattans I died on 17 April 1905 leaving a Will and two Codicils thereto. The Will created a trust' of 396 shares of the 400 shares outstanding of Read’s Inc. The trust was to cease upon the death of the last survivor of the testator’s eight children, which event occurred upon the death of Arthur Nattans II on 24 September 1972. The Will appointed three trustees and assured that there would be three trustees during the life of the trust by providing for the appointment of a successor trustee to take the place of any one of the trustees named or their successors who died or resigned their trust. At the time the trust ceased, the trustees were Max Sokol, Louis Eliasberg and Arthur K. Solomon. On 3 June 1974 they filed in the proceedings in the Circuit Court for Baltimore City a petition praying the passage of an order allowing them compensation and commissions and a final distribution allowance for their services. In the petition Solomon pointed out that in addition to being a trustee of the trust estate, he was also a beneficiary thereof. He declared he did “not desire to suggest any measure of compensation, but agrees to accept such compensation for his services as this Court shall determine to be reasonable and proper.” Sokol and Eliasberg suggested what their compensation should be. In connection with the final distribution of the trust estate, they indicated they would be willing to accept an allowance equal to one-half of one per cent of the value of the corpus of the trust estate being distributed. With regard to income, they set out three alternatives for fixing compensation. On 12 June the chancellor wrote counsel for the parties giving his view as to the compensation to be paid. He directed counsel for the trustees to prepare an order in accordance therewith, to send a copy to counsel for all parties and to those parties not represented, and to submit the order to the court for execution after reasonable notice had been given. The order was signed 5 July 1974. It allowed the trustees a commission payable out of income in an amount equal to 5% of the income of the trust from September 24, 1972 through June 15, 1974 as compensation for their labor and responsibility during that period. It denied the request for additional commissions. It authorized the trustees to pay out of income certain amounts “to their counsel for services rendered as set forth in the petitions for payment of counsel fees.”

On 2 August 1974 the attorneys for Sokol and Eliasberg filed an “ORDER POR APPEAL BY MAX SOKOL AND LOUIS ELIASBERG, TWO OF THE TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF ARTHUR NATTANS, DECEASED, PLAINTIFFS.” The order directed the Clerk to “Enter an Appeal to the Court of Special Appeals of Maryland from that portion of the Order entered in this action on July 5, 1974 that denied the request of the Trustees for a commission on corpus upon final distribution of the trust provided by Article 16, Section 199 (e).” On 15 August, Solomon, as a co-trustee, filed a “Notice of Disclaimer of Right to Appeal” in which he disclaimed and denied the right of Eliasberg and Sokol to appeal the order of 5 July 1974. In support thereof, he attached a copy of a letter dated 10 July 1974 which he stated was mailed to Eliasberg and Sokol “on or about July 15, 1974.” According to the copy attached, the letter related that Solomon had been advised that the order denied commissions on the corpus of the trust, but authorized the payment of commissions of 5% on the income of the trust since 24 September 1972. It asserted that the amount of the commissions under that formula would exceed $50,000. It continued:

“1 have also been advised that one or both of you may appeal Judge Ross’ decision. Although your success on appeal would financially help me, because I am entitled to 1/3 of any trustees’ commissions but 1 would be charged with the expense of only 1/7 of the commission, 1 think it would be very unwise to appeal. First, I think that Judge Ross’ decision was a very fair one. Second, our chances of success on appeal are very limited because of the manner in which Judge Ross’ opinion was written. He made a finding of fact as to the fair and reasonable compensation, and as your lawyers have undoubtedly told you, it is very difficult to reverse a trial judge’s finding of fact.
As one of the three co-trustees, I therefore oppose the institution of any appeal, and I instruct the two of you not to file an appeal from Judge Ross’ Order of July 5.”

III

The question presented for decision is simply whether, in the circumstances, the appeal as taken is allowed by law.

Appellees argue that two of three trustees may not prosecute an appeal in their fiduciary capacity without the joinder and consent of the third trustee. They point to the rule of unanimity as set forth in Restatement, Trusts 2d, § 194 (1959):

“If there are two or more trustees, the powers conferred upon them can properly be exercised only by all the trustees, unless it is otherwise provided by the terms of the trust.”

Comment a to § 194 states in part:

“If there are two or more trustees, action by all of them is necessary to the exercise of the powers conferred upon them as trustees. If one of them refuses to concur in the exercise of a power, the others cannot exercise the power.”

Appellees refer to 3 Scott, The Law of Trusts, § 194 (3rd ed. 1967) and Bogert, Trusts and Trustees, § 554 (2d ed. 1960) for similar statements of the rule. They claim that the courts of Maryland have adhered to the rule of unanimity at least since Latrobe v. Tiernan, 2 Md. Ch. 474, decided in 1851 and cite Wlodarek v. Wlodarek, 167 Md. 556, 558. They assert that the rule was applied to dismiss an appeal in Donovan v. Miller, 137 Md. 555 and Kramme v. Mewshaw, 147 Md. 535. They distinguish Mathias v. Segaloff 187 Md. 690 as concerning receivers, which they believe the Court viewed as a different class from trustees.

Appellants declare that this is a case of first impression. Their research “disclosed no reported case wherein a co-trustee was barred from pursuing his right of appeal from denial of compensation because of the failure or refusal of a co-trustee to join in such appeal.” They attribute the dearth of litigation on the question “to the fact that the recognized rule requiring trustees to act unanimously applies only to matters involving the fiduciary management of the trust estate and does not apply to cases, such as the present case, involving the exercise of no such fiduciary power and in which the trustees have a personal interest.” This is the keystone of their argument. They claim that the rule of unanimity is limited to trustees exercising fiduciary powers and discretion in the management of the trust. They agree that Maryland has followed the rule of unanimity since Latrobe v. Tierman, supra, but maintain that the rule has never been applied in a reported case in this State or in any other jurisdiction “in such a fashion as to preclude a co-trustee from litigating his claim for compensation because of the failure or refusal of a co-trustee to join in such action.” They refer to Schloss v. Rives, 162 Md. 346, as permitting a trustee to petition for compensation and litigate his claim therefor in the face of opposition from a co-trustee of the trust who was also the principal beneficiary thereof. The unanimity rule was not mentioned, and appellants argue that an exception to that rule was recognized by the decision sub silentio. They .distinguish Donovan v. Miller, supra, on its facts which they ascertained by going to the original record and briefs. They also refer to the language of § 194 of the Restatement of Trusts, Second, and Comment a thereto, but they emphasize that it is the powers conferred upon trustees which can be exercised only by all of them, or in other words, that it is with respect to the exercise of powers conferred upon them as trustees that action by all is necessary. They conclude that “Obviously the Restatement limits the requirement of unanimity to the exercise of fiduciary powers.” They cite foreign authority as indicating that “[i]n the rare cases where a co-trustee attempts to prosecute any legal action or appeal over the objection of a co-trustee, the Courts have generally allowed the appeal.” They quote from a general discussion in Annot., 6 A.L.R.2d 147, 148:

“The interest which a trustee has in the subject matter of the trust estate is of a dual nature. He has a personal interest to the extent that he is entitled to a compensation for his services in the administration of the trust, and to this extent he is an interested person aggrieved by any adverse judgment or order, within the contemplation of the rule as to appeals. He is also an aggrieved party if the decree or order imposes upon him a personal liability arising from the administration of the trust estate or from the duty to account therefor (citations omitted). . . His right to take an appeal is universally recognized where his personal rights are affected by the order or judgment ...” (Emphasis supplied)

They opine: “An appeal from the denial of a commission on corpus upon the termination of a trust does not constitute the exercise of ‘powers conferred upon them as trustees’ within the scope of Sec. 194 [of Restatement of Trusts, Second], nor upon the facts and holdings of the Maryland cases that have enunciated [the rule of unanimity].”

Appellees counter by asseverating that “[a]ppellants are estopped and precluded from asserting any personal interest in the award of compensation.” They support this argument by pointing out that “[w]hen the question arose as to where the burden should fall of lawyers’ fees in connection with the efforts made to obtain a termination commission, Appellants saw only the representative character of their claim, and persuaded the lower court, over objection, to allow such fees as proper charges against the trust assets. The Appellants successfully opposed the contention that they had sought the commissions in their individual capacities, and so should pay their lawyers from their own pockets.” Sokol and Eliasberg, appellees state, prosecuted the appeal in their fiduciary capacity as two of the successor trustees. “They are, therefore, estopped and precluded from asserting any personal interest in the award of compensation to them since such an assertion is directly contrary to the position which Appellants have taken throughout the course of these proceedings.” They cite Van Royen v. Lacey, 266 Md. 649; Stone v. Stone, 230 Md. 248, 253; Fisher v. Boyce, 81 Md. 46; Edes v. Garey, 46 Md. 24, 41.

Thus the issue is cleanly drawn. Appellees contend that all the trustees sought, as they must, compensation in their fiduciary capacity and, under the rule of unanimity, not less than all may challenge the action of the chancellor thereon. Appellants claim that the rule of unanimity is not applicable in such circumstances, so that an appeal will lie by those trustees who feel aggrieved, although less than all.

IV

(a)

Whether the order here is considered a final order or an appealable interlocutory order, there is no statute dispositive of the question before us. Courts Art. § 12-301 gives, with exceptions not here applicable, a party the right to appeal from a final judgment entered by a court “in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.” Courts Art. § 12-303 permits a party to appeal from certain orders entered by a circuit court in a civil case. Subsection (c) (5) designates an order “For . . . the payment of money, or the refusal to rescind or discharge such an order, unless the . . . payment is directed to be made to a receiver appointed by the court.” Subsection (c) (6) specifies an order “Determining a question of right between the parties and directing an account to be stated on the principle of such determination.” We do not believe that the term “a party” as used in Courts Art. § § 12-301 and 12-303 is authority for an appeal by less than all trustees if the rule of unanimity is applicable. That is, “a party”, as it relates to trustees, contemplates, not individual trustees each as a party, but one collective trustee acting as a unit unless permitted by law to act separately.

(b)

We are not concerned with the right vel non of a sole trustee or multiple trustees acting as a unit to appeal from a final judgment or an appealable interlocutory judgment affecting the trust estate and rights of beneficiaries. Circumstances under which trustees may or may not so appeal are discussed in Annot., 6 A.L.R.2d 147, under “Right of trustee of express trust to appeal from order or decree not affecting his own personal interest.” But we are in accord with the general discussion of the Annotation, quoted supra, that the interest which a trustee has in the subject matter of a trust estate is of a dual nature. “He has a personal interest to the extent that he is entitled to a compensation for his services in the administration of the trust, and to this extent he is an interested person aggrieved by any adverse judgment or order, within the contemplation of the rule as to appeal. . . . His right to take an appeal is universally recognized where his personal rights are affected by the order or judgment.”

We think that a trustee has the right to seek compensation to which he may be entitled by law or under the trust agreement. To that end, even though it is a matter of personal interest, appropriate action is properly brought in his fiduciary capacity because it is in that capacity that compensation is due him. That the action, however, may be brought by the aggrieved trustee in his fiduciary capacity, that is as a trustee, does not mean when there is more than one trustee that the rule of unanimity applies to preclude the action by less than all the trustees. The rationale of the rule of unanimity is that the multiple trustees are but one collective trustee and must act as a unit because they have a common purpose — the proper administration of the trust estate. This interest in the subject matter of the trust in a fiduciary capacity is readily distinguishable from the personal interest in receiving just compensation for performance of the fiduciary duties. Interest in the latter is not necessarily common to each trustee, but, rather, may be peculiar to the individual trustee, as for example, in the case at hand, where one of the trustees is also a beneficiary of the trust. It would be contrary to the tenets of equity to allow one trustee to thwart the efforts of his co-trustees to obtain allowable compensation by the mere act of refusing to join in an action to seek it. By the same token, it would be inappropriate to permit one trustee to prevent appellate review of an allowance for or denial of compensation by the mere refusal to join in the appeal sought by an aggrieved co-trustee. We conclude that appellants are not estopped from asserting a personal interest in an allowance for compensation. We hold that the rule of unanimity does not preclude the appeal here noted.

In so holding, we intend no departure from the rule of unanimity. We expressly affirm it, but we simply do not believe that it applies in the circumstances. We find no authority compelling a contrary decision. As appellants suggest, we see at least tacit authority for our view in Schloss v. Rives, supra. And on the facts of Donovan v. Miller, supra, its holding is not dispositive. Nor is Kramme v. Mewshaw, supra, which cites Donovan as authority for the view that one of two conventional trustees could not prosecute an appeal, on the ground that trustees have equal power, interest, and authority, and so cannot act separately. In Kramme, as the Court carefully pointed out, the appeal, unlike, the appeal here, had to be considered as taken by a co-trustee only as in her representative capacity. 147 Md. at 552-553.

It is true that grants to trustees are usually construed as creating a joint tenancy between them, if a contrary intent is not otherwise expressed. Bogert, Trusts and Trustees, § 145 (2nd ed. 1965); 2 Scott, The Law of Trusts, § 103 (3rd ed. 1967). It may be argued, therefore, that because joint tenants of real property must join in actions, there is an analogy between them and co-trustees. There is some analogy but it is not determinative of the case before us. Bogert, in speaking of grants to trustees being construed as creating a joint tenancy, notes that it is exceedingly advantageous for them to hold as joint tenants because of the nature of their powers and duties and on account of the advantage of survivorship. He observes that they are usually required to act unanimously, and, for purposes of administration they are regarded as a unit. “This fits in very well with the theory of joint tenancy that, for certain purposes at least, there is a group or unitary holding.” § 145. But Bogert points out: “The joint tenancy of trustees is not like the ordinary joint tenancy of persons who hold property for their own benefit. Such latter owners may partition, and each may sell his interest and change the relationship into a tenancy in common. In the ordinary case, however, trustees have no power to partition the trust res and sever the trust by a conveyance or other action. Their powers are confined to joining with their co-trustees in conveying away the whole estate or a part of it.” Id. 2 Scott, § 103, speaks of co-trustees holding as joint tenants only with respect to the usual incidents of survivorship, explaining why, on the death of one of several trustees, the title to the trust property is in the survivor or survivors and is still held in trust. We do not believe that our holding in Crowe, approved by the Court of Appeals, to the effect that joint tenants must join in actions for injuries to real property, requires, either directly or by analogy, that the appeal here be dismissed.

Motion to dismiss appeal denied; motion ne recipiatur to answer to motion to dismiss appeal denied; costs to be paid by appellees.

      . A decree of the Circuit Court for Baltimore City construing the Will was affirmed by the Court of Appeals in Weller v. Sokol, 271 Md. 420.

      . The trust was administered under the supervision of the Circuit Court for Baltimore City, docket 53A (1913), folio 169 et seq. See Ryan v. Herbert, 186 Md. 453.

      . On 3 July 1973 Forrest F. Bramble, Jr., Esq. and Delverne A. Dressel, Esq. filed a petition for the passage of an order authorizing the trustees to pay them a reasonable counsel fee. The petition set out that they were employed by the trustees to assist and advise the trustees with respect to the proper distribution of the trust estate. On the same date Sokol and Eliasberg, as two of the trustees, filed a petition for the passage of an order allowing counsel fees out of the proceeds of the trust estate to be paid to Dressel and Paul E. Burke, Jr., Esq. The petition stated that Bramble, one of the counsel for the three trustees, was unable fully to represent the interest of all of them in connection with the allowance of proper compensation for their services as trustees because of the aforementioned position of Arthur K. Solomon not to participate actively in any hearing in connection with commissions, not to appear at the hearing to testify on behalf of the Trustees and not to waive commissions. Therefore, Eliasberg engaged the services of Burke, and Sokol engaged the services of Dressel to represent them with respect to the allowance of commissions.

      . On 16 August 1974 appellees and Ruth L. Creamer filed an order for cross-appeal to this Court from that portion of the order of-5 July. 1974 authorizing the trustees to pay out of the income of the trust estate $8,686.32 to counsel for Sokol and Eliasberg for services “related to that portion of the Petition for Compensation which sought allowance of a termination commission from the corpus of the trust.” See Rule 1012 b, effective 1 July 1974. The cross-appeal is not involved in the matter now being considered by us.

      . Appellants in their memorandum present the question thus: “Can the rights of independent Co-Trustees to appeal from a denial of their claim for a termination commission on corpus be defeated by the refusal of a Co-Trustee, who is also a beneficiary of the trust, to join in the appeal?”

      . Sokol, Eliasberg and Solomon are successor trustees. The Will named three trustees to hold and manage the trust estate consisting of the Read’s Inc. stock during the existence of the trust. They were the testator’s son-in-law, Samuel L. Bachrach, his friend, W. Burns Trundle, and his wife, Jennie Nattans. Their duties as to payment of taxes, expenses and income, and with respect to certain other matters, were set out but powers which they could exercise were not specifically designated. The Will, however. conferred on successor trustees “all the powers and duties together with the compensation as above provided in reference to the three trustees appointed by this will.” Item Seventh of the Will provided that the trustees “shall receive for their services as such the usual commission of five per cent upon the annual income of said trust estate.”

      . Stanton v. Preis, 291 P. 2d 118 (Cal. App. 1955); In re Estate of Cooper v. Security Pacific National Bank, 11 Cal.App.3d 1114, 90 Cal. Rptr. 283 (1970); Tree v. Continental Illinois National Bank and Trust Company of Chicago, 346 Ill. App. 509, 105 N.E.2d 324 (1952); Commercial National Bank v. Hayter, 473 S.W.2d 561 (Tex. 1971); In re Luscombe’s Will, 85 N. W. 341 (Wis. 1901).

      . As we have indicated, the propriety of this is the subject of the cross-appeal and is not now before us.

      . It may be that before 1 January 1974, effective date of Acts 1973, 1st Sp. Sess., ch. 2, § 2, which repealed Code, Art. 5, an appeal such as the one here brought was authorized, with restriction, by Art. 5, § 8: “Any receiver, trustee, or other fiduciary appointed by or acting under the jurisdiction of a court of equity may appeal to the Court of Appeals from any final decree by which any preference or priority between creditors or other persons interested in the estate is determined, but no such appeal shall be entered without the consent and approval of the court having jurisdiction over the estate.” No comparable provisions appear in the Courts Article. The Revisor’s Note to Courts Art. § 12-301 explains: “The portion of § 8, permitting an appeal under its provisions only when the court consents, has been eliminated. It seems anomolous to permit an appeal only with the permission of the very court whose decision is being appealed.” See Mackenzie v. Gerke, 118 Md. 326, 334-335.

      . Courts Art. § 12-101 (f) defining “Final judgment” as “a judgment, decree, sentence, order, determination, decision or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken”, does not attempt to specify what is an appealable final order, leaving that to case law.

      . See, for example, MacNabb v. Sheridan, 181 Md. 245.

      . Whether counsel fees incurred in pursuing such action are properly chargeable to the trust is not now before us, and we expressly do not decide that question in this opinion. See note 4, supra.

      . Killen v. Houser, 239 Md. 79, and 251 Md. 70, are not factually apposite. We' think it clear that one trustee may bring an action against a co-trustee for violating his trust.

      . Crowe v. Houseworth, 19 Md. App. 688, 691-693 reversed on other grounds, 272 Md. 481, 483.


author: Davidson, J.,

text:
    LOUIS E. ANDERSON et al. v. EUGENE SAWYER et al.
    [No. 98,
    September Term, 1974.]

      Decided December 16, 1974.

      The cause was argued before Thompson, Moylan and Davidson, JJ.

      Randolph N. Blair and John S. Arnick for appellants.

      William F. Mosner, with whom were Louis L. DePazzo and John R. Cicero on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

This appeal is from an order of the Circuit Court for Baltimore County, reversing a decision of the Baltimore County Board of Appeals (Board) which had denied a special exception for the construction of a funeral home on land zoned for residential use. We shall affirm the order of the Circuit Court requiring the grant of the Special exception.

The record shows that the subject property lies in a block bounded by Merritt Boulevard on the South, Merritt Avenue on the west, Sunberry Road on the north, and Meadow Lane on the east. (See location plan, Exhibit 2, attached hereto.) The parcel, consisting of 1.5 + acres of land, is comprised of five separate lots, three of which front on Merritt Boulevard and two of which front on Sunberry Road. It is zoned D.R.-5.5 (Density-Residential, 5.5 dwellings per acre). The two easternmost lots fronting on Merritt Boulevard are developed with single-family homes. The remainder of the tract is undeveloped.

On the east and on the north the subject property is bounded by D.R.-5.5 land upon which single-family houses, ranging in price from $30,000 to $50,000, are located. On the west the site is adjoined by land, zoned B.R. in a C.N.S. district (Commercial, neighborhood shopping). That portion of the B.R. zoned land, abutting the subject property, which fronts on Sunberry Road contains a union hall used by union members for meetings and social events. A commercial enterprise, Harold’s Bar, is located on that portion of the B.R. zoned land fronting on Merritt Boulevard. On the north and across Sunberry Road the subject property confronts land zoned D.R.-5.5 which is developed with single-family houses. Lying between these houses on the north side of Sunberry Road and Merritt Avenue on the west there is a used car lot. On the south and across Merritt Boulevard the subject property faces D.R.-5.5 zoned land upon which the Dundalk Presbyterian Church is located.

Merritt Boulevard is a main traffic artery with a speed limit of 45 miles per hour. The section of that road which adjoins the subject property consists of five lanes — three westbound and two eastbound — divided by a median strip. The westbound lane of Merritt Boulevard which immediately adjoins the subject property is a deceleration lane which begins at the easternmost edge of the subject property and ultimately becomes a right-hand turn onto Merritt Avenue. Harold’s. Bar has two driveways onto the deceleration lane. The existing residences located on the easternmost portion of the subject property also have driveways which lead directly onto the deceleration lane. Sunberry Road is a 30 foot-wide residential street with parking permitted on both sides.

The application for a special exception was filed with the Zoning Commissioner (Commissioner) who, after a hearing, granted the application. The development plan approved by the Commissioner called for the construction of a Colonial-style funeral home, consisting of one-story plus a basement, to be located on the Merritt Boulevard portion of the subject-property, and an off-street parking lot for 73 cars to be situated on the Sunberry Road portion of the property. Access to the property was to be limited to a single entrance on Merritt Avenue, located as near to the eastern border of the subject property as possible. Egress was to be limited to a single exit on Sunberry Road, located as close to the westernmost boundary of the subject property as possible. All exiting vehicles were to be required to turn left onto Sunberry Road.

At the hearing on appeal to the Board much testimony was presented to show that the grant of the special exception satisfied all of the requirements of the Baltimore County Zoning Regulations. In opposition, the protestants, neighboring landowners, presented testimony intended to show that the grant of the requested special exception would tend to create congestion on neighboring roads and streets and would, in other respects, be detrimental to the health, safety and general welfare of the locality involved. According to them, the entrance on the Merritt Boulevard deceleration lane was unsafe; the proposed use would create traffic congestion on Sunberry Road and would generally increase the amount of traffic moving throughout the residential community. Moreover, they alleged that the proposed use would create a wedge for future commercialization, and would have a depressing psychological effect that would interfere with the enjoyment of the adjoining properties, make them less saleable, and prevent them from appreciating in value as much as other homes in the area.

In its opinion denying the requested special exception, the Board said:

“The Board finds that this is a very close case to decide, but believes the greater weight of testimony in evidence is with the protestants. The Board believes the granting of the special exception will create traffic problems on Sunberry Road and will, in fact, be detrimental otherwise to the general welfare of the locality involved, and therefore, will deny the requested petition for a special exception for a funeral home.”

The applicable standards for judicial review of the grant or denial of a special exception have been frequently expressed by the Court of Appeals. Turner v. Hammond, 270 Md. 41, 54-55, 310 A. 2d 543, 550-51 (1973); Cason v. Bd. of Co. Comm’rs, 261 Md. 699, 707, 276 A. 2d 661, 665 (1971); Rockville Fuel v. Bd. of Appeals, 257 Md. 183, 187-88, 262 A. 2d 499, 502 (1970); Montgomery County v. Merland’s Club, Inc., 202 Md. 279, 287, 96 A. 2d 261, 264 (1953). The conditional use or special exception is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan.

Whereas, the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community. Rockville Fuel, supra, at 257 Md. 191, 262 A. 2d 503. If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal. The case before us falls within the latter category.

Here, in order to deny the right of the property owner to enjoy the requested special exception, the Board needed before it probative evidence that the proposed use would, in fact, create traffic congestion on Sunberry Road, and would, in fact, be detrimental otherwise to the general welfare of the locality involved. In this case there was no such probative evidence presented. In reviewing the evidence before the Board it must be noted that the opinion or conclusion of an expert or lay witness is of no greater probative value than that warranted by the soundness of his underlying reasons and facts. Surkovich v. Doub, 258 Md. 263, 272, 265 A. 2d 447, 451 (1970); Creswell v. Baltimore Aviation, 257 Md. 712, 721, 264 A. 2d 838, 843 (1970); Westview Park v. Hayes, 256 Md. 575, 581-82, 261 A. 2d 164, 167 (1970); Miller v. Abrahams, 239 Md. 263, 273, 211 A. 2d 309, 314 (1965). Thus, unsupp rted conclusions of witnesses to the effect that a proposed use will or will not result in harm amount to nothing more than vague and generalized expressions of opinion which are lacking in probative value. Rockville Fuel, supra, at 257 Md. 193, 262 A. 2d 504-05.

A qualified traffic expert, presented by the applicant, testified with respect to the traffic impact which the proposed use would have upon Sunberry Road. His opinion was based upon a study of the traffic to be generated by the proposed use and the traffic conditions then existing upon Sunberry Road. He testified that in his opinion Sunberry Road could comfortably and safely accommodate the volume of traffic to be generated by the proposed use. In contrast, the only expert testimony presented to the contrary was that of Eugene J. Clifford, director of traffic engineering for Baltimore County. He stated that, although he had not made a study of traffic at the location of the proposed special exception, he had reviewed the proposal and had “checked over the roads and the property.” In essence, his testimony regarding Sunberry Road consisted of a statement that it is undesirable, to increase traffic on a 30-foot-wide road in a residential neighborhood in which parking is permitted on both sides of the street. In addition, several nearby residents testified that the grant of the special exception would result in traffic congestion on Sunberry Road. Thus, the testimony presented by the protestants neither contradicts nor rebuts that of the appellant’s qualified traffic expert to the effect that Sunberry Road is capable of absorbing the increase in traffic which the proposed use would generate. There are no facts provided by either the expert or the laymen to support the conclusion that increased traffic on Sunberry Road is “undesirable” or that traffic congestion will, in fact, result from the increase in traffic to be generated by the proposed use. Consequently, the testimony presented to the Board to show that the grant of the requested special exception would result in traffic congestion on Sunberry Road was totally devoid of probative value, and was, in effect, no evidence at all.

The testimony presented to show that the grant of the special exception would otherwise be detrimental to the general welfare of the locality involved is similarly lacking in probative force. The applicant presented the testimony of a qualified traffic expert who opined that the entrance on Merritt Boulevard was safe. He.pointed out that both the State Roads Commission and the Department of Traffic Engineering in Baltimore County have approved the location of the proposed entrance.

The only evidence presented to the contrary was that of Mr. Clifford who testified that it is generally undesirable to have driveways leading directly onto deceleration right-turning lanes. More specifically, he stated:

“Any driveway located at a right-turning lane is undesirable, of course, and any change in the land use at a site like this is bound to increase the traffic generated by the site.
“So if the driveway is undesirable, an increased use of it becomes even more undesirable.”

In support of his conclusion that driveways leading onto deceleration lanes for right-hand turns were unsafe, he stated:

“Vehicles attempting to make right turns are usually intent on the maneuver, and people usually suddenly slow down to make a right turn at some point other than the intersection proper, represents an accident possibility.
“People who are attempting to enter from a private driveway are not usually expected by the person on the main highway to turn into a side road by way of these deceleration lanes, and the ability of a driver to exit at a point like that, and accelerate enough to get free of a free-moving vehicle, is very difficult, — plus the fact that somebody exiting from one of these private driveways, conceivably would attempt to go completely across in this case, the first half of Merritt Boulevard, to merge in a left turn into Peninsula Expressway, which I find is completely undesirable.”

A careful analysis of Mr. Clifford’s testimony reveals its inherent deficiencies. The reasons he offers in support of his conclusion that an access on Merritt Boulevard will increase the potential for accidents all relate to conditions which would arise if vehicles exited from the subject property onto the deceleration lane. The record, however, shows that the proposed access on Merritt Boulevard is to be restricted to use by vehicles entering onto the subject property. Moreover, the entrance is to be located at the easternmost boundary of the site near the beginning of the deceleration lane, thus minimizing the accident potential for cars entering the property. Mr. Clifford’s failure to take these facts into account leaves his conclusion that an access onto Merritt Boulevard will increase the potential for accidents totally unsupported by reasons. More importantly, his opinion is unsupported by any specific facts which would lead to the conclusion that, given the traffic conditions then existing on Merritt Boulevard and the traffic which would be generated by the requested special exception, the use of a proposed entrance from Merritt Boulevard would probably result in accidents. In short, Mr. Clifford’s testimony is too vague and generalized to be accorded any probative value. In essence, it amounts to no evidence at all.

Finally, with respect to the traffic impact of the requested special exception, both a witness qualified as an expert in real estate transactions and several of the neighboring property owners testified that the grant of the special exception would have an adverse effect because it would increase the traffic flowing through other residential streets of the neighborhood. In so doing the protestants failed to take into account the fact that, according to the applicant, all traffic would be required to enter on Merritt Boulevard and to exit on Sunberry Road, and that all traffic exiting onto Sunberry Road would be required to turn left. Accordingly, all vehicular traffic onto the subject property will traverse Merritt Boulevard, a non-residential street, while all vehicular travel from the subject property will be confined to that small portion of Sunberry Road lying between the subject property and its intersection with Merritt Avenue. It is apparent that under those circumstances the conclusion that the grant of the requested special exception will result in an increased flow of traffic through residential streets other than Sunberry Road is totally unsupported and entitled to no weight.

The remaining evidence of adverse effects suffers from similar deficiencies. The applicant presented two experts qualified in the fields of planning and zoning. They testified that the proposed use constituted an appropriate buffer between the existing commercial and residential zones and would stabilize the neighborhood by preventing further expansion of the commercial uses located to the west of the subject property. In support of this opinion they pointed out that for many years the subject property had remained vacant and undeveloped with single-family residences because of its proximity to the commercially zoned land on which the union hall and Harold’s Bar are located. They concluded that, given its location adjoining commercially zoned land, the subject property is not likely ever to be developed with single-family residences and, therefore, unless developed with a special exception use, the subject property will be highly susceptible of reclassification to a commercial zone.

In contrast, some neighboring property owners expressed the view that the grant of the requested special exception would create a wedge for future commercialization. This conclusion is completely vitiated by the evidence in the record which shows that there are existing expensive single-family residences on all of the property which adjoins the subject property so that the possibility of commercial expansion to the east is remote at best. Moreover, it has been recognized in Maryland that a special exception use cannot constitute a change in the character of a neighborhood sufficient to justify a reclassification of adjoining property. Heller v. Prince George’s County, 264 Md. 410, 417, 286 A. 2d 772, 775 (1972); see Creswell, supra, at 257 Md. 719, 264 A. 2d 842-43. Thus, the testimony of the neighbors in this respect,' which neither contradicts nor rebuts that of the experts in planning and zoning, amounts to nothing more than a generalized fear unsupported by facts or reasons. It does not constitute probative evidence on the question of adverse effect. 1

Finally, the applicant presented much evidence to show that the proposed use would not interfere with the enjoyment of adjoining properties and would not depreciate the values of such homes. An architect testified that the appearance of the building, which would be residential in nature and Williamsburg in design, would be compatible with and complementary to the neighboring homes. Extensive landscaping was to be provided in order .to screen the funeral home operations from view. Lights were to be on standards no higher than four feet in order to avoid reflecting on adjoining residential properties. According to the owner, the architect, and a qualified expert in the field of land planning, the 73 parking spaces proposed were more than ample, so that it would be unnecessary for cars to park on Sunberry Road. The traffic pattern within the compound was so arranged as to prevent the headlights of any car from shining directly into any residential backyard and to permit funeral processions, which on the average consist of nine cars, to be lined up within the compound without the necessity of using Sunberry Road. A witness qualified as both an expert in zoning and planning as well as a real estate broker, testified that the grant of the special exception would not adversely affect the property values of the adjoining residences. In support of his position he testified as to the original purchase price and the subsequent sale price of a number of homes in close proximity to funeral parlors at other locations in Baltimore County. His figures indicated that all of those homes had appreciated in value.

A qualified expert in the field of real estate transactions and real estate appraisals testified on behalf of the protestants that he thought the proposed use would depreciate the value of homes in the neighborhood because it would create more traffic in the area and homeowners “do not like to live on a busy street.” He also stated that “even if he [the applicant] has the best architecture in the world, it is going to be an eyesore” to the adjoining property owners. He additionally opined that notwithstanding the screening to be provided “there will be a reflection, and an attraction of bugs and Lord knows what” which will preclude outdoor living on the properties adjacent to the subject property and thereby interfere with the enjoyment of those properties. He pointed out that the off-street parking lot was inadequate for the formation of very large funerals. He stressed that a location next to a funeral home was psychologically depressing and that, consequently, people do not like to live next to a funeral home. He concluded that for all of these reasons the homes of adjacent property owners would not appreciate in value as much as the homes of others in the area and would not be as attractive or saleable as would otherwise be the case. He offered no specific evidence of sales of comparable property to substantiate that conclusion.

A number of neighboring property owners testified to the same effect. One of them, who was renting a house which adjoined the proposed parking lot, testified that if the proposed use were developed he would not exercise his option to buy. Still another witness testified that at one time she had looked at a home for sale for which the asking price was $39,000; that when she discovered it was near a funeral home she was no longer interested in purchasing it; and, that, in fact, the home had sold for only $31,500.

As we have set forth above, there was uncontradicted and unrefuted evidence that the grant of the requested special exception, as specifically proposed, would not increase traffic flowing through residential streets. The testimony that “even the best architecture in the world would result in an eyesore” is so unreasonable as to be entitled to no weight. Unsupported statements/ about reflections of light and the attraction of bugs amount to nothing more than the expression of vague and generalized fears. The slight discomfiture which might result from the fact that unusually large funerals could not be totally formed within the confines of the subject property is too minimal in significance to establish that the proposed use would depreciate the value of adjoining properties. Thus, none of these reasons is sufficient to support the protestants’ conclusion that the value of their properties would be depreciated.

There can be no doubt that an undertaking business has an inherent depressing and disturbing psychological effect which may adversely affect persons residing in the immediate neighborhood in the enjoyment of their homes and which may lessen the values thereof. Indeed, it is precisely because of such inherent deleterious effects that the action of a local legislature in prohibiting such uses in a given zone or zones will be regarded as promoting the general welfare and as constitutionally sound. Jack Lewis, Inc., v. Mayor and City Council of Baltimore, 164 Md. 146, 155-156, 164 A. 220, 224-25 (1933). But in the instant case the legislature of Baltimore County has determined that as part of its comprehensive plan funeral homes are to be allowed in residential zones notwithstanding their inherent deleterious effects. By defining a funeral home as an appropriate use by way of special exception, the legislature of Baltimore County has, in essence, declared that such uses, if they satisfy the other specific requirements of the ordinance, do promote the health, safety and general welfare of the community. As part of the comprehensive zoning plan this legislative declaration shares in a presumption of validity and correctness which the courts will honor. Turner, supra, at 270 Md. 54, 310 A. 2d 550; Rockville Fuel, supra, at 257 Md. 187-88, 262 A. 2d 502.

The presumption that the general welfare is promoted by allowing funeral homes in a residential use district, notwithstanding their inherent depressing effects, cannot be overcome unless there are strong and substantial existing facts or circumstances showing that the particularized proposed use has detrimental effects above and beyond the inherent ones ordinarily associated with such uses. Consequently, the bald allegation that a funeral home use is inherently psychologically depressing and adversely influences adjoining property values, as well as other evidence which confirms that generally accepted conclusion, is insufficient to overcome the presumption that such a use promotes the general welfare of a local community. Because there were neither facts nor valid reasons to support the conclusion that the grant of the requested special exception would adversely affect adjoining and surrounding properties in any way other than would result from the location of any funeral home in any residential zone, the evidence presented by the protestants was, in effect, no evidence at all.

In Turner, supra, at 270 Md. 60, 310 A. 2d 553, the Court of Appeals expressed itself as follows:

“We have said that substantial evidence is required to support the findings of the Board and that substantial evidence is more than a scintilla of evidence. All definitions of scintilla, at least in this context, are imprecise but if we assume it takes ten gossamers to make a scintilla then the appellee’s evidence before the Board falls well short of five gossamers.”

This is precisely the situation here. The record is so devoid of substantial supporting facts as to be incapable of raising a debatable issue. The protestants have shown nothing more than that they would suffer the same degree of harm as would be suffered by any homeowner if a funeral home were permitted on land adjacent or in close proximity to their residences. If the residents of Baltimore County do not want funeral homes in residential use districts, they should prevail upon the local legislature to change the ordinance.

The order of the Circuit Court reversing the Board’s denial of the requested special exception is affirmed.

Order affirmed.

Costs to be paid by the appellants.

      . For purposes of this appeal, Merritt Boulevard and Sunberry Road are treated as running in an east-west direction.

      . The westernmost 69 feet of the lot which fronts on Sunberry Road is classified in the B.R. zone (Business-Roadside).

      . See Baltimore County Zoning Regulations (Interim ed. 1971) § 1B01.1C.8 which establishes that funeral homes are permitted uses by way of special exception in all D.R. zones.
      Baltimore County Code (1972 Cum. Supp.) § 22-23 provides, in pertinent part, that:
      “Subject to the appropriate principles, standards, rules, conditions and safeguards as set forth in the zoning regulations, the zoning commissioner, upon petition, may grant variances from area and height regulations and may make special exceptions to the zoning regulations in harmony with their general purpose and intent; provided, that the issuance of all such special_ exceptions and variances shall be subject to appropriate principles, standards, rules, conditions and safeguards set forth in the zoning regulations, and that all decisions of the zoning commissioner with respect to such matters shall be subject to appeal to the board of appeals as provided in this article.”

        See also Baltimore County Zoning Regulations (Interim ed. 1971) § 500.5.
      The appropriate standards governing the award of a special exception, enumerated in Baltimore County Zoning Regulations (Interim ed. 1971) § 502.1, are as follows:
      “Before any Special Exception shall be granted, it must appear that the use for which the Special Exception is requested will not:
      “a. Be detrimental to the health, safety or general welfare of the locality involved;
      “b. Tend to create congestion in roads, streets or alleys therein;
      “e. Create a potential hazard from fires, panic or other dangers;

        “d. Tend to overcrowd the land and cause undue concentration of population;
      “e. Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences or improvements;
      “f. Interfere with adequate light and air.”