P. Hager Wingert, deceased. From decreej P. Hager Wingert, and who had died intespassed on bill filed to restrain the adminis- tate, leaving seven children, including P. Hatrators, Henry F. Wingert and others, from enforcing the collection of the tax, also enjoining the State, the State and heirs at law, Martha A. Wingert and others, appeal. Affirmed in part, reversed in part, and cause remanded. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. ger Wingert, surviving her as her only heirs at law, and to whom the property descended in equal shares if owned by her. The property mentioned in the fifth paragraph of the bill was property in which it was alleged there was no record title in P. Hager Wingert, nor in the name of any of the antecedents of P. Hager Wingert, through whom he could have inherited, nor any other title which would subject the property to the payment of the collateral inheritance tax. The only question presented as to the prop Ogle Marbury, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., and Omer T. Kaylor, State's Atty. for Washington County, of Hagerstown, on the brief), for the State. Har-erties in the fourth paragraph of the bill are vey R. Spessard, of Hagerstown (Miller Wingert of Hagerstown, on the brief), for Martha A. Wingert and others. CONSTABLE, J. The property about which these cross-appeals are concerned has been before this court on four former appeals, this being the fifth. The former cases are reported in 125 Md. 536, 94 Atl. 166, 127 Md. 80, 95 Atl. 1055, 129 Md. 28, 98 Atl. 224 and the last to be reported in 132 Md. 103 Atl. 437. The present appeals were taken from a decree passed upon a bill filed to restrain the administrators of P. Hager Wingert from enforcing the collection of collateral inheritance tax on certain real property mentioned in the bill in paragraphs 4 and 5 thereof. The court below ordered that the administrators aforesaid and the state of Maryland show cause on or before a certain day why the injunction should not be issued, and pending the determination of the relief as prayed issued a preliminary injunction restraining the administrators from collecting or attempting to collect the tax. On the hearing the court decreed that as to the property described in the fourth paragraph the preliminary injunction be made perpetual upon the administrators and the state, but as to the property described in paragraph 5 decreed that the preliminary injunction be dissolved. An appeal was taken by the state from that part of the decree perpetually enjoining the state and the administrators from collecting the tax on the property mentioned in paragraph 4, and the heirs at law, excepting the administrators, appealed from the portion refusing the injunction as to the property mentioned in paragraph 5 of the bill. The bill alleged that the administrators were attempting to collect collateral inheritance tax on certain property of which it was claimed that P. Hager Wingert died seised and possessed, intestate, unmarried, and without issue, leaving as his heirs at law six sisters and brothers. The property mentioned in the fourth paragraph of the bill, upon which it was claimed by the complainants that no tax was due or collectible, was property for which the record title stood in the name of Eliza J. Wingert, the mother of whether Eliza J. Wingert at the time of her death absolutely owned the properties, or, although the legal title stood in her name, as a fact did she hold the same as trustee for her six children to the exclusion of P. Hager Wingert. If she owned the properties absolutely, or held them for the benefit of all her children, including P. Hager, then, of course, at her death intestate P. Hager was entitled to a one-seventh interest, and upon his death intestate, unmarried, and without issue, and seised and possessed of said interest in the properties, the collateral inheritance tax would be payable by his heirs at law. It was upon the theory that Mrs. Wingert held the properties as trustee for the benefit of six of her children, not including P. Hager, and that he held no interest whatever in them, that the bill was filed, [1] The real question then is: Did Mrs. Wingert hold the legal title to the properties with a resulting trust for the benefit of six of her children? Very recently has the question of what is essential to effect such a trust been so carefully and so exhaustively considered by this court, where, in the opinion by Judge Burke in Dixon v. Dixon, 123 Md. 45, 90 Atl. 846, Ann. Cas. 1915D, 616, practically all of the decisions of this court were reviewed, together with many other authorities, that we deem it idle to review them further than to state the conclusion as to the rules of law therein reached by this court: "The general rule is well settled that, when the purchase price is paid by one person and the title is taken in the name of another, a resulting purchase money, and the holder of the legal title trust arises in favor of the person paying the becomes a trustee for him. There are, however, exceptions to this general rule: Thus, where a person purchases land and pays the considerato be placed in the name of one to whom the tion with his own money, but causes the title purchaser is under a natural or moral obligation to provide, such as in the case of parent and resulting trust will arise, but it will be regarded child, or husband and wife, no presumption of a prima facie as a gift or an advancement for the benefit of the nominal purchaser. In either case the presumption is one of fact, and not of law, and the real intention of the parties to the transaction may be shown, and the court will give it effect if it does not contravene some rule of property or the policy of the law. If a husband purchases real estate in his own name with money furnished by his wife from her separate estate, a resulting trust in her favor arises by implication of law. The authorities are practically unanimous in support of these propositions." considered as advancements or gifts, but with the intention that the equitable title should be in them. P. Hager Wingert died in July, 1913. His father, Philip H. Wingert, had died in 1898. After the death of the father the children, other than P. Hager, began to purchase properties in the city of Hagerstown and farms in Washington county, until they had acquired six properties in all. P. Hager Wingert for a period of 30 years prior to and until his death had been a helpless invalid, unable to attend to business of any kind whatever and without knowledge of the purchases. Eliza J. Wingert was also a great invalid, and knew nothing of the purchases nor that the properties had been placed by the actual purchasers in her name for matter of convenience. The whole scheme of placing the prop-to the present they have continued to so erties in the name of the mother seems to have originated from the fact that one of the sons wished to buy a property adjoining a property which belonged to the estate of the father, Philip H. Wingert. There was a right of way over a portion of an alley between the properties, attached to the property wished to be acquired. One of the sons was about to take title to it in his own name when it was suggested that, if the titles were unified, the easement would be gotten rid of, and for that reason the title was taken in the name of Eliza J. Wingert. From this be ginning it followed that all the titles were similarly placed. Being of the opinion that P. Hager Wingert had no interest in the properties, it follows that no collateral inheritance tax could be collected from the holders of the Wingert heirs. [4] In reference to the property mentioned in the fifth paragraph of the bill, we have reached a contrary conclusion. The testimony as to it shows that there is no record title to it in any of the Wingerts, but it does appear that the elder Wingert took possession of and occupied this property by adverse possession for at least 40 years, and that upon his death it descended through this title to his seven sons and daughters, and that up hold it. Prior to the death of the father and afterward two of the sons erected, without his knowledge, houses upon this property, paying for a portion of the materials out of their father's income. There can be no question that, if these sons erected these houses and improvements in full possession of the facts that P. Hager Wingert owned as great an interest as either of them in the land, the improvements would inure to the benefits of all the owners of the fee. Therefore the oneseventh interest P. Hager Wingert had in this property would descend to his heirs at law, and they should pay the collateral inheritance tax on the appraised one-seventh value of the property. It appeared from the testimony clearly that not only did Mrs. Wingert not know that the [5] By section 132 of article 81 of the Code titles had been so placed, but that she re- it is made the duty of every administrator or ceived no benefits from the properties by way executor to collect and pay over to the regisof rents, etc., and in fact claimed none. The ter of wills, for the use of the state, the colpurchase money for the same, the testimony lateral inheritance tax due. The bill in this plainly shows the canceled checks for the case evidently proceeded upon this theory, purchase money being produced-was fur- for the only prayer of the bill was to enjoin nished by the children, other than P. Hager the administrators from collecting the tax. Wingert. It is true that some of the checks They did, however, join the state as a party were drawn upon the bank account standing defendant. The lower court in granting the In the name of Philip H. Wingert's heirs, preliminary injunction only enjoined the adand although it is admitted that P. Hager ministrators, but did require the state to Wingert had an interest in this fund, yet it show cause why the injunction should not be is proven that any money that was his under issued. After the hearing, the court, in its these payments was returned to his estate decree, did enjoin both the administrators through an agreement made with the state's and the state from collecting the tax on the attorney for Washington county, and subject-properties described in paragraph 4 of the ed to the collateral inheritance tax. But, as bill. Therefore, although, as we have said we have said, he knew nothing of the pur- above in this opinion, the tax was not paychases, and, of course, could not have known able on the properties, nevertheless it was not of the placing of the titles in the name of his proper to enjoin the state nor to make it a party defendunt. mother. [2] In all species of resulting trusts, intention is an essential element. Walsh v. MeBride, 72 Md. 45, 19 Atl. 4. [3] Without discussing in detail the purchase of each separate property, we are satisfied that the proof is clear and convincing that these purchases were made and paid for by the six sons and daughters, not with any intention upon their part that they should be The state, without its consent, cannot be made a party to a suit, by reason of its prerogative as a sovereign and on grounds of public policy, since Acts 1820, c. 210, which repealed Acts 1786, c. 53. State v. B. & Q. R. R. Co., 34 Md. 344. The administrators will be protected from any action taken against them by the state in the future for failure to collect the tax on properties in paragraph 4 by rea son of the injunction issued against them, I account. In latter action State appeals from but the injunction against the state must be revoked. Decree affirmed in part, and reversed in part, and cause remanded for further proceedings; the costs to be paid out of the estate of P. Hager Wingert. (132 Md. 524) AMERICAN COLONIZATION SOC. v. LATROBE et al. (two cases). STATE v. AMERICAN COLONIZATION SOC. et al. (two cases). (Nos. 40-43.) (Court of Appeals of Maryland. April 3, 1918.) 1. ESCHEAT 4-PROPERTY SUBJECT TO ESСНЕАТ. Where after death of grantor trust is declared void as perpetuity, the trustee having legal title and being competent to hold land, and the grantor having died leaving a will and heirs, the land does not escheat to the state. 2. APPEAL AND ERROR 150(1)-RIGHT TO APPEAL-INTEREST IN SUBJECT-MATTER. Where it has been held that land did not escheat to state, an appeal by the state complaining of the distribution account of the rent and profits from the land will be dismissed; the state having no interest in the land. 3. TRUSTS 135-CONSTRUCTION-ESTATE OF TRUSTEE. Where land is conveyed to trustees who were directed to pay the net rent to the beneficiary, and who, as trustees, were required to collect rent, attend to taxes, insurance, repairs, and make permanent improvements in connection with care of five or six warehouses, the legal title vested in trustees, and will not be transferred to beneficiary; such having been intention of grantor. 4. TRUSTS 611⁄2-INVALIDITY OF TRUST ESTATE OF TRUSTEE. Where a deed is executed to trustees and after death of grantor the trust is declared void, the invalidity of the trust will not affect the legal estate vested in the trustees. order sustaining demurrer to its petition and from order overruling exceptions filed to an account. Appeal from order last mentioned dismissed. Other orders appealed from affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. William G. Johnson, of Washington, D. C., and D. K. Este Fisher, of Baltimore, for American Colonization Soc. Philip B. Perlman and Ogle Marbury, Asst. Attys. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for the State. Eugene O'Dunne, of Baltimore, for trustees. STOCKBRIDGE, J. This case has been so recently before this court in two previous appeals that any recital of the facts out of which it arises is unnecessary. All of the essential facts will be found in the very full opinion filed in the case of American Colonization Society v. Robert Soulsby et al., 129 Md. 605, 99 Atl. 944, L. R. A. 19170, 937, and the second of which appeals, decided less than a year ago will be found in full in the Daily Record of July 21, 1917. The present record contains four separate and distinct appeals, all of which raise questions of law rather than questions of fact, so that a brief statement will suffice, as these are successively considered. The appeals numbered respectively 41 and 43 are appeals by the state of Maryland, the one from an order of court sustaining a demurrer to a petition filed on behalf of the state by which it was sought to have the property involved in the case declared escheated to the state, as the result of the decision in this court in the case in 129 Md., and the second on the appeals now to be con 5. TRUSTS 315(3)-COMPENSATION OF TRUS-sidered is from the action of the circuit court in overruling the exceptions filed on behalf of the state to the auditor's account, by which a balance of money in the hands of the trustees was audited to be paid to the American Colonization Society. It will tend to simplify the case now before the court to dispose of these two appeals before considering the oth ers. As appears from the prior history of this litigation, Caroline Donovan executed a deed to certain named trustees of fee simple property in the city of Baltimore for purposes in that deed fully set forth. She also executed Appeals from Circuit Court of Baltimore a will disposing of the property of which she City; H. Arthur Stump, Judge. died seised and possessed. Long after the execution of the deed, and after her death, proceedings were instituted by her heirs to have the deed of trust set aside because by the terms of that deed it was claimed that the instrument violated the rule of perpetuities. Actions by the American Colonization Society against Ferd. C. Latrobe, Jr., and others, and proceedings by the State of Maryland against the American Colonization Society and others. In former action plaintiff appeals from order sustaining defendants' demurrer and dismissing petition and from By the opinion of Judge Pattison, speakorder overruling exceptions to items in aning for this court, in the case of 129 Md., that contention was sustained, and the deed set, and hold the property as against the state, aside, but a recovery of the property was re- because they could render the service requirfused to the heirs, because of the uninter-ed by the feudal principle of tenure; that rupted adverse possession of the trustees for Caroline Donovan left heirs and did not die a period in excess of 20 years. The state of intestate, and therefore the essential requireMaryland then intervened, and by its petitionments for a reversion of the property to the sought to have the property in question declared escheated to the state. This petition was demurred to, the demurrer sustained, and petition dismissed, and this presents the question involved in the appeal in No. 41. A number of cases have been cited by the Assistant Attorney General to support the state's contention, but they are for the most part without any application in the present instance, for the reason that they are based on statutes adopted in the states where those cases have arisen, and the courts were called on to deal with a claimed escheat upon the basis of a proper interpretation of the statute. In this state there is practically no statute which is applicable, the section in article 57 of the Code having to do mainly with a question of limitations, and the provisions contained in article 93 relating only to personal property. But there have been numerous adjudicated cases in this state dealing with the subject of escheat, wherein the subject has been fully considered. These are to be found as early as Casey v. Inloes, 1 Gill, 430, 39 Am. Dec. 658, and Hammond's Lessee v. Inloes, 4 Md. 138, Matthews v. Ward, 10 Gill & J. 443, and as late as the case of the George's Creek Co. in Liquidation, 125 state of Maryland by way of escheat are lacking in this case, and the order appealed from must in this particular be affirmed. [2] Having reached the conclusion that the broperty cannot be escheated to the state, it necessarily follows that the state has no present interest therein, and, not having a present interest in the property, it has no standing to object to the distribution account disposing of the money now in the hands of the trustees. Wagner v. Freeny, 123 Md. 24, 90 Atl. 774, and cases there cited. The appeal in No. 43 therefore should be dismissed. Md. 595, 94 Atl. 209. The general doctrine which has become the accepted rule of law in this state is that laid down in the case of the Rockhill College V. Jones, 47 Md. 17, and a careful examination of the cases discloses insurmountable obstacles against any recovery by the state of the property conveyed by Mrs. Donovan to her trustees, for two reasons: In the first place she did not die without heirs; and, in the second place, she did leave a will by which all of the rest and residue of her estate was devised and bequeathed. The rule of escheat in this state is approximately that of the common law, and is clearly set out in 10 R. C. L. 604, in part as follows: "In a strict sense escheat at common law is applicable only to that which can be the subject of tenure, for the reason that it represents the reversionary interest or right of the lord to take for want of a tenant. * In a trust estate the trustee holds the legal title, and is competent to perform the necessary services; there fore, upon the death of the cestui que trust intestate and without heirs, the trustee takes the absolute title clear of the trust, and this right to take for his own use exends to the heir of the trustee." The appeal numbered 40 is the one which presents the greatest difficulty. This is the appeal of the American Colonization Society against the trustees from the action of the court in sustaining a demurrer of the trustees to a petition of the appellant, and dismissing that petition. The attitude of the Colonization Society at this point is somewhat anomalous. For a long series of years the American Col onization Society had made no claim to any interest in the property involved in this litigation, other than that of a beneficial use, as the cestui que trust, under the terms of the deed of Mrs. Donovan. As such it had received quarterly remittances from the trustees named in Mrs. Donovan's deed, and character, so far as is disclosed by the rectheir successors, without any question of any ords in the several appeals, which have come to this court. When the provisions of that deed were declared void, the attitude of the Colonization Society immediately changed, and the claim now put forth in its behalf is that the trustees named by Mrs. Donovan were its agents; that the property belonged to it, or at any rate that there was only a bare legal title in the trustee, which the society at its will and pleasure is entitled to have transferred to it, working a merger of the legal and beneficial title; that the trust upon which the property was held involved no active duties to be performed on the part of the trustees, and for that reason as well the trustees should be required to transfer to the society the legal title held by them. As a statement of an abstract legal principle, without reference to the facts of a particular case, there is ample law to support most of the argument advanced on behalf of the Colonization Society. [1] This summary is a deduction from the The difficulty arises, however, when an English cases upon the subject, and in its attempt is made to apply these principles to concluding part is not entirely in harmony the facts, as they have developed and exist with the rule as recognized in this state in in the present case. In most instances in Matthews v. Ward, 10 Gill & J. 443. It interpreting a trust courts endeavor to seek therefore follows that under the common out the intent of the creator of the trust, law the trustees were competent to receive and, when it is ascertained, to give effect to it as far as is compatible with the language | held to be true, for the reason that the sole employed. duty in that case to be performed was the selection of a house, and, when selected, the house was to vest in fee in the children of the testator. The trustee was not instructed to rent the property, or told what use should be made of it. There can, of course, be no pretense that it was the purpose of Mrs. Donovan to transfer the entire corpus of the estate conveyed by her to the American Colonization Society. If that had been her intent, it would have been a far simpler matter to accomplish than to endeavor to create a trust of the character which she did. So far as any intent upon her part was concerned, it is manifest that what she had in mind was the creation of a legal estate, and a beneficial estate in the same property, but without their coalescing. But Mrs. Donovan's purpose is not now the controlling element involved in this proceeding. This court has already declared her deed to be void because transgressing a fundamental rule of the policy of this state. From this it follows that the petitioner, the American Colonization Society, can gain no assistance whatever from the fact that it was named as beneficiary in the Donovan deed, nor any right accrue to it, legal or equitable, because of that deed, and therefore the present contention of the society, carried to its logical result, would exclude the American Colonization Society from any benefit whatever because of the deed of Mrs. Donovan to Latrobe and Harvey as trustees. The deed did convey to them a legal estate. The vice of the deed lay rather in the beneficial interest sought to be created under it. could have regard to the intent of Mrs. DonIf now in the present case we Messrs. Latrobe and Harvey were not trustees by virtue of any appointment of the ovan, it will be noted that the trustees were American Colonization Society. If they had directed to pay the net rents. The use of been, there would have been more ground for this expression "net rents" would carry with the present contention of that society. The it as a necessary implication that it was the trustees were not in any proper sense the purpose of the grantor that the trustees agents of the society. They derived their should continue to hold the legal title of the appointment, their power with regard to the property, attend to its upkeep, and pay over the income which remained, and that is exproperty, their authority for its management, from Caroline Donovan, not from the actly what the trustees in this case did. The society. Hence their possession of the prem-terized as nominal merely. They involved duties performed by them cannot be characises was in no manner the possession of the the rental of some five or six warehouses, petitioning society. So far as they were accountable, their accountability was to the attending to the taxes, insurance, repairs, court or courts exercising equity jurisdic- the installation of an elevator, the rebuildtion in the city of Baltimore, an entirelying of a front wall, and other similar duties different matter from what would have been the case had they derived their powers from, and been made accountable to, the American Colonization Society. There is a long line of cases in this state dealing with the question of coalescing of legal and equitable estates, by reason of no active duties to be performed by the trustees. Warner v. Sprigg, 62 Md. 14, Thompson v. Ballard, 70 Md. 10, 16 Atl. 378, Brillhart v. Mish, 99 Md. 447, 58 Atl. 28, Raffel v. Safe Dep. & Tr. Co., 100 Md. 141, 59 Atl. 702, and In re Hagerstown Trust Co., 119 Md. 224, 86 Atl. 982, are but illustrations of them. [3] The case of Johnson v. Safe Dep. & Tr. Co., 79 Md. 18, 28 Atl. 890, in which the opinion was prepared by the late Chief Judge McSherry, was a case in which under the terms of a will there were created coextensive legal and equitable estates for the benefit of the testator's daughters. By the terms of the will the trustees were authorized to hold the property and pay the rents and profits thereof equally to and for the benefit and use of the daughters. In that. case the question of the intent of the testator was largely controlling of the conclusion reached. which were more than mere incidental re pairs, and went to the permanent betterment of the property, and was reflected by the increase in the rentals derived by them. In so far as the contention made in the petition now under consideration rests upon the lack of active duties to be performed, it must fail. The cases of Lee v. O'Donnell, 95 Md. 538, 52 Atl. 979, and Potomac Lodge v. Miller, 118 Md. 417, 84 Atl. 554, relied on by the petitioner, both turned on the intent of the creator of the trust, which as already [4] It is presented for the consideration stated, cannot be given controlling effect in of the court that, since the deed of Caroline the present case. The first of these two Donovan has been declared null and void, be cases leads up, however, to the other conten-cause offending the rule against perpetuities, tion of the petitioner, that the estate of the the legal estate, as well as the beneficial, trustees is a bare legal title, without active must fail. Such a proposition is unsupport. duties to be performed, and that the cestui ed by the authorities in this state. Grove que trust, or individual or corporation which v. Congregation of Disciples of Jesus Christ, had received the benefit of the trust, is en- 33 Md. 451; Gump v. Sibley, 79 Md. 165, 28 titled to a transfer of the legal title. Atl. 977; Trustees of Zion Church v. Hilken, |