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tion when it can properly be done, and courts should be inclined to continue the powers formerly vested in the general assembly, unless there be manifested a clear, unquestionable intent to take them from it.

Being of the opinion that Acts 1904, chap. 225, p. 388, is not in conflict with 8 34 of article 3 of the Constitution, as the term "works of internal improvements," as there

public highways of the state as are constructed by the counties and contemplated by that act, the decree of the lower court so holding will be affirmed.

Decree affirmed; costs to be paid by the appellant.

not, embrace the "public highways" contem- | subject should be resolved in favor of its plated by the act of 1904. The occasion for continuance, rather than against it, espe such provision, the discussion of the sub- cially when it concerns a subject in which ject in the convention that first adopted it, the state has so much interest as public the context, the evident meaning of the roads. Rules of interpretation adopted by term in other parts of the Constitutions, the courts require them to sustain legislathe prior, contemporaneous, and subsequent construction of the term, all suggest this as the reasonable and proper meaning to be given to it by the courts. Then, when we add to those considerations the additional one that by the same Constitution which first adopted this provision it was provided that the county commissioners "shall exercise such powers and duties only as the legislature may from time to time pre-in used, was not intended to apply to such scribe," and by the present one their "powers and duties shall be such as now, or may be hereafter prescribed by law," we are strengthened in our conviction. For, as was well said in appellees' brief, "the establishment, construction, and maintenance of public roads is a primary function of gov. ernment," and when we remember that a county is but a division of the state, "created and organized for public political purposes connected with the administration of the state government," and that the legislature has, under the power given it by the Constitution, imposed the duty on the county commissioners to raise money with which the public roads can be maintained, it would seem remarkable, if not unjust to the counties, if the legislature was intention-2. ally shorn of the power to give such reasonable aid to the counties towards the construction or improvement of public roads as this act contemplates. The general assembly exercises great power over the counties, and in no respect more than concerning their public roads and bridges, as illustrated in the cases between Queen Anne's County and Talbot County in 50 Md. 245, and 99 Md. 13, 57 Atl. 1, the Baltimore County v. Wilson Case, 97 Md. 207, 54 Atl. 71, 56 Atl. 596,

Mary E. POLK et al., Appts.,

v.

Helen A. LINTHICUM

( . . . . . . Md.. .....)

1. Mere unfriendliness of a cestui que
trust toward a trustee is not sufficient
ground for the removal of the latter.
The removal of the widow as trustee
of a fund provided for the benefit of
testator's daughter is required, where she
elected to take her dower rights in opposi-
tion to the will, thereby depleting the trust
estate, and destroying a very important part
of the scheme of the testator, remarried with-
in a short time, became estranded from the
cestui que trust and her cotrustees so that no
intercourse could subsist between them, and
kept the estate in needless litigation.

and by the act of 1878, chap. 158, p. 256, A

by which it required Allegany and Garrett
counties to take charge of and keep in re-
pair the national road. Yet, if the appel-
lant's contention is right, it cannot aid
these "political divisions of the state, or-
ganized with a view to the general policy of
the state," as was said of counties in Daly
v. Morgan, "although they are constantly
subject to legislative control," however
desirable for the state at large it may be to
do so.
It cannot be doubted that, in the
absence of some constitutional prohibition,
the general assembly has full power to fur-
nish such aid; and when we are called upon
to determine whether a recognized and un-
questioned power has been taken from a
body such as the general assembly, in which
it was formerly vested, any doubt on the

(March 23, 1905.)

PPEAL by plaintiffs from a judgment of the Circuit Court for Baltimore City refusing to remove a trustee. Reversed. The facts are stated in the opinion. Messrs. James P. Gorter and H. Arthur Stump, for appellants:

The behavior of Mrs. Linthicum is very much below the standard that the courts of

this state exact in the performance of the responsible and delicate duties pertaining to the office of trustee.

Dickerson v. Smith, 17 S. C. 289.

There ought to be peaceful intercourse between the beneficiary and those intrusted with the management of the estate. Where

NOTE. On the question of dissentions be tween beneficiary and trustee as ground for the latter's removal, see also, in this series, May v. May, 41 L. R. A. 767.

strained relations exist between trustee and cestui que trust, the court has exercised its power, and removed the trustee.

Wilson v. Wilson, 145 Mass. 492, 1 Am. St. Rep. 477, 14 N. E. 521; McPherson v. Cox, 96 U. S. 419, 24 L. ed. 751; Scott v. Rand, 118 Mass. 215; May v. May, 167 U. S. 310, 42 L. ed. 179, 17 Sup. Ct. Rep. 824. Strained relationship between the trustees is an additional ground for removal.

May v. May, 167 U. S. 310, 42 L. ed. 179, 17 Sup. Ct. Rep. 824; Uvedale v. Ettrick, 2 Ch. Cas. 130; Jones v. Stockett, 2 Bland, Ch. 434; Quackenboss v. Southwick, 41 N. Y. 117; Re Bernstein, 3 Redf. 26; Druid Park Heights Co. v. Oettinger, 53 Md. 62. When Mrs. Linthicum renounced the will, she ceased to be trustee.

Meyer's Estate, 8 Pa. Co. Ct. 374. Messrs. T. R. Clendinen, Enoch Harlan, and J. Charles Linthicum Brother, for appellee:

&

Equity will not exercise its power to take charge of and administer a trust when it is being properly administered by the trustee.

Perry, Tr. § 275; Schouler, Exrs. & Admrs. 2d ed. § 33, pp. 45, 46; Massey v. Stout, 4 Del. Ch. 274; Thompson v. Thompson, 2 B. Mon. 175.

A trustee appointed by the grantor of the benefits should not be displaced unless he has violated his trust,-especially when asked for by part only of the beneficiaries.

Berry v. Williamson, 11 B. Mon. 271; Re Newman, 124 Cal. 688, 45 L. R. A. 782, 57 Pac. 686; Kidd v. Bates, 120 Ala. 79, 41 L. R. A. 155, 74 Am. St. Rep. 17, 23 So. 735.

An executor appointed by will cannot be rejected by the court, except where the law has specially so provided.

Smith's Appeal, 61 Conn. 420, 16 L. R. A. 538, 24 Atl. 273; William's Appeal, 73 Pa. 277; Bonner v. Lessley, 61 Miss. 397; Moorman v. Crockett, 90 Va. 198, 17 S. E. 875.

The mere fact of there being a dissention between the cestui que trust and the trus tee is not a sufficient ground for removing that trustee from the trust.

Forster v. Davies, 4 DeG. F. & J. 139; Gibbes v. Smith, 2 Rich. Eq. 134; Clark v. Anderson, 10 Bush, 113; Nickels v. Philips, 18 Fla. 735; Keen's Estate, 6 Pa. Co. Ct. 645; Stevenson's Appeal, 68 Pa. 105.

Testator's judgment in appointment will not be interfered with.

Berry v. Williamson, 11 B. Mon. 245; McPherson v. Cox, 96 U. S. 404, 24 L. ed. 746; Smith's Appeal, 61 Conn. 420, 16 L. R. A. 538. 24 Atl. 273; May v. May, 167 U. S. 317, 42 L. ed. 183, 17 Sup. Ct. Rep. 824.

Page, J.,, delivered the opinion of the court:

This is an appeal from the order of the lower court dismissing the petition of the appellants for the removal of the appellee from the trust created by the last will and testament of the late Gabriel D. Clark. The decedent left, surviving him, a widow (the appellee in this case) and two children by a former wife (a son, Gabriel D. Clark, Jr., and a daughter, Mary, who, with her husband, Lucius C. Polk, are the appellants). By his last will, made in the year 1892, he distributed a large estate, except as to a small portion donated to certain charitable purposes, among the several members of his family. For his wife he made an ample provision. He gave her his residence and contents, and one half of his personal estate, amounting to more than a million and a half of dollars, for her life or widowhood, and one third of the residue of his realty for life. All the residue of his estate, including that portion that might remain after the termination of the estate given to the wife for life or for widowhood, he divided among his son and daughter. The son took his share absolutely, but that of his daughter was given to his widow, his son, and the Mercantile Trust Company of Baltimore, in trust to hold and manage the same, and pay over the income thereof to Mrs. Polk, "into her hands and not into another," for her life, and from her death to his grandson, if he be then living, during his natural life, and then for the benefit of his child or children, until the youngest child shall have reached twenty-one years of age, when the trust is to close, and the property shall vest absolutely in the said children. In the event of his grandson dying without leaving child or descendant, the property is to go to the children of the testator's brother. He died on the 8th December, 1896, and in June, 1898, the court assumed jurisdiction of the trust.

The appellee and the decedent were married in 1883. From the time of the marriage up to his death, it seems not to be questioned that their intercourse was harmonious and agreeable. From the period of Mr. Clark's death, there arose causes of estrangement between the widow and the children, which have brought about much bad feeling, and broken up all the pleasant relations that may have heretofore subsisted between them. We do not deem it necessary. in the view we take of the case, to enter into a discussion of the nature of these causes, nor to make any attempt to determine how far the suspicion and distrust the children seem to entertain for the appellee may be justified by the circumstances as they are disclosed by the record. It will be suf

have regarded the interest and probably the wishes of all the members of his family. At the time he selected his widow as one of the trustees for his daughter, he must have believed that the agreeable relations between her and his children would continue to exist after he was gone. He probably did not anticipate that she would remarry within less than a year and a half after his death, and thereupon would be broken up the home where they had so happily resided, nor that there would spring up so soon estrangements of serious character and far

ficient to observe that in fact ever since Mr. Clark's death these causes have operated to bring about a most unfortunate state of bad feeling in the family, and to develop differences respecting the conduct of the trust which have kept the estate in constant litigation. The appellee, it is true, has testified that she has never entertained "one moment of ill will against one of them" (meaning Mr. Clark and his sister); and it may be conceded that the appellee has testified with entire candor and honesty. But notwithstanding this, it seems improbable, if not impossible, that, under all the circum-reaching effect. His object in joining her in stances of the case, she can ever resume with them the kindly and sympathetic relations that existed during the lifetime of the testator, and are so necessary for the successful conduct of a trust like the one under this will. It may not unreasonably be assumed that the testator made selection of his widow not only because of his entire confidence in her judgment and integrity, but also because he knew of her satisfactory relations with Mrs. Polk. He must have sought not only that his daughter's share of his estate should be wisely and honestly controlled, but that her dealings with those managing the trust might be through the medium of the appellee, whose affectionate solicitude for her comfort and welfare would soften to some extent, at least, the burden of having to submit to the will of others. These remarks are not intended as the statement of a sufficient ground for a removal, for the reason that it seems to be well settled that mere unfriendliness of the cestui que trust towards the trustee is not a sufficient ground per se for the removal of the latter. Forster v. Davies, 4 DeG. F. & J. 139; Wilson v. Wilson, 145 Mass. 492, 1 Am. St. Rep. 477, 14 N. E. 521. But these reflections, we think, enable us to approach the consideration of other features of the case in our judgment of more importance. The last will of the testator was made and executed in the year 1892, four years prior to his death. It evinces a solicitude for the welfare of each member of his family, as well as an earnest desire to maintain an absolute equality among his children. He intended, it is true, to guard the share of Mrs. Polk by means of the trust, for reasons of which we are not informed, but which we must assume were inspired by the expectation that it would operate for her benefit. But he bestowed upon each of his children an equal share of the estate. To the widow he was extremely liberal. He gave her a life interest in more than one half of his estate. It included the dwelling and contents, and an income estimated by one of the counsel to amount to more than $50,000 per annum. He seems, therefore, to

the management of the trust could not have
been to supply the business skill needed for
the successful control of so large an estate,
for that was already supplied by the other
trustees. What else could have been his mo-
tive, but that there might be at his daugh-
ter's side a safe, agreeable, and sympathetic
medium through which she could convey her
wishes respecting the trust estate to those
that had it in charge? Her position on the
board of trustees seems to be an additional
proof of the fact that he intended the trust
estate primarily for the benefit only of his
daughter, to be enjoyed by her in the most
agreeable as well as the most advantageous
manner. It is apparent, also, from the face
of the will that the scheme of the testator
was, after providing liberally for his widow,
to so dispose of all his property in such a
manner that it should eventually go down in
the line of his own blood. The testimony
also shows that he was exceedingly solicit-
ous that his dispositions should be accept-
able to his wife. He trusted her, talked
with her about his will, read it to her, and
she promised him to do what he wished her
to do. Mr. Snowden, who prepared the will,
testified that after the will was executed the
appellee "was called into the parlor, and Mr.
Clark requested me to read it to her, which
I did, very carefully and deliberately, and
he asked her if she understood it, and
whether she approved of it, to which she re-
plied that she did." Notwithstanding this
solemn declaration on her part, she re-
nounced the will, and elected to take in lieu
thereof her dower or legal estate. By this
act she took out from the operation of the
trust a very large amount-probably several
hundred thousand of dollars-and diverted
it to her own use. We are not now ques-
tioning in any manner her right thus to re-
nounce, or what the moral aspect of the act
may be, when considered in connection with
the statements and promises made by her to
her late husband, but we regard it now only
as a fact to be considered in connection with
other matters in relation to the trust. More.
over, it appears from the record that less
than one year and a half after her husband's

death she remarried, and ceased not only to be on good terms with her stepchildren, but all intercourse of every kind with his family ceased. It is clear that by these acts she destroyed a very important part of the scheme of the testator. His property has been diverted from the channel in which he desired it to go, and the trust has been depleted to the extent of many thousands of dollars. Moreover, the proof shows that her cotrustee, Mr. Clark, entertains feeling of such a positive character towards her that proper co-operation between them in the business of the trust has become impossible, and also that the beneficiary has become charged with distrust of her, founded upon her dealings with the property of the testator, so that for the future there can no longer be personal relations between them. Finally, whatever amount of blame may or may not attach to the appellee, if any, there can be no doubt her participation in the trust has for many years operated to keep the estate in litigation, at much expense; and it is not unreasonable to expect that, if she remain, there may be other recurring matters that will develop still further litigation for many years longer. In addition to this, we think it is clear that the testator created this trust for the benefit of his daughter, and selected his wife to be one of the trustees, not for her personal advantage, but for that of the ccstui que trust. will ought to and must be respected; but it is not for a moment to be even suspected that he would have appointed anyone for the performance of the duty of trustee for the benefit of his daughter whose first act would be the depletion of the trust by renouncing his will, and thereby diminishing the value of the trust estate, and to that extent destroying his cherished hopes and wishes, and afterwards, having remarried, become so obnoxious to his children that they are unwilling to have dealings with her. These things show a want of fidelity to the wishes of the testator, and render the person so affected unfit to keep the financial prosperity of his daughter in her hands. In addition to this, we think it undoubtedly was Mr. Clark's desire that his daughter should not only receive her income promptly, but that she should be made comfortable in the reception of it as well as in its enjoyment. The mere fact of dissention be69 L. R. A.

His

tween the cestui que trust and the trustee is not, it is true, a sufficient ground for the removal of a trustee, because, as was said in Forster v. Davies, 4 DeG. F. & J. 139, a cestui que trust "might at any time raise a quarrel with the trustee, and thereupon come to this court to discharge the trustee and remove him from the trust upon the ground of the impossibility of their acting together." But it is also well settled that an application by a cestui que trust to remove a trustee is addressed to the reasonable discretion of the court, and "requires a careful consideration of all the circumstances, the existing relations, and to some extent the state of feeling between the parties." Scott v. Rand, 118 Mass. 215. And so in May v. May, 167 U. S. 320, 42 L. ed. 184, 17 Sup. Ct. Rep. 828, the Supreme Court said: "The power to remove a trustee and to substitute another in his place is incidental to its paramount duty to see that trusts are properly executed, and may properly be exercised whenever such a state of mutual ill feeling, growing out of his behavior, exists between the trustees, or between the trustee in question and the beneficiaries, that his continuance in office would be detrimental to the execution of the trust, even if no other reason than that human infirmity would prevent the cotrustee or the beneficiaries from working in harmony with him, and although charges of misconduct against him are either not made out, or are greatly exaggerated." Disbrow v. Disbrow, 46 App. Div. 115, 61 N. Y. Supp. 614, Affirmed in 167 N. Y. 606, 60 N. E. 1110; Wilson v. Wilson, 145 Mass. 490, 1 Am. St. Rep. 477, 14 N. E. 521.

We do not rest our decision in this case upon the mere fact of inharmonious relations between the appellee and Mrs. Polk, or between the appellee and her cotrustee; but we are of opinion that these and other facts stated in the record, and particularly that she has placed herself in a position of hostility to the plans of the decedent, whereby the trust fund has been materially depleted, convince us that she is not a proper person to longer act as a cotrustee of the fund, and should therefore be removed.

Order reversed and cause remanded, that an order may be passed removing the appellee from the trusteeship; the appellee to pay costs in this court and below.

CONNECTICUT SUPREME COURT OF ERRORS.

COLLINSVILLE SAVINGS SOCIETY

V.

"make an estimate of the actual cash cost of replacing or repairing the same, or the

BOSTON INSURANCE COMPANY, Appt. actual cash value thereof, at and immediate

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Statement by Prentice, J.:

One Woodruff was the owner of a lot of land in New Hartford, with a building standing thereon. These premises were subject to a mortgage to the plaintiff for $10,000. Woodruff caused the building to be concurrently insured in five companies for the total sum of $9,000. The defendant

wrote $2,000 of this amount. The policies

were in the form of the Connecticut standard policy, had stamped thereon the socalled reduced rate, or 80 per cent, clause, and bore the indorsement, "Loss, if any, payable to the Collinsville Savings Society as their mortgage interest may appear." The building having been damaged by fire, the defendant and Woodruff made a submission in writing to two appraisers and an umpire in the manner prescribed in the policy. This submission, whose result the policy provided should be final, left to the determination of the appraisers and umpire the two factors from which the defendant's liability could be ascertained by a mathematical calculation, to wit, the "sound value" of the property damaged and the fire damage. It also provided that, in determining the sound value and the loss upon the property insured, the appraisers should

NOTE. As to right of mortgagee to be a party to arbitration on a loss under an insurance policy taken out by the mortgagor, but containing an indorsement that the losses, if any, shall be payable to the mortgagee, see, in this series, Bergman V. Commercial Union Assur. Co. 15 L. R. A. 270.

ly preceding the time of the fire; and, in case of depreciation of the property from use, age, condition, location, or otherwise, a proper deduction shall be made therefor." The appraisers thereupon made their award. determining therein that the sound value of the property was $17,500, and the fire loss $3,571.94. The sound value was arrived at by estimating the cost of construction of a new building, and deducting therefrom the depreciation arising from the length of time the burned building had been built, and the use to which it had been put. Upon this basis an apportionment was correctly made, and the defendant's liability ascertained to be $510.28. Subsequently, proof of loss having been made by Woodruff, the defendant made out its sight draft for said sum of $510.28, payable to the joint order of Woodruff and the plaintiff, and attached thereto a receipt to be signed by said payees, and to accompany the draft when presented for payment. Woodruff thereupon, with knowledge of the result of the appraisal, indorsed said draft and signed said receipt, which recited that the amount of the draft was received of the defendant in full of all claims and demands for loss and damage by reason of its said policy and the fire in queswith certain, at least, of the drafts and retion. The plaintiff, having been presented ceipts made out in settlement of said loss, thereupon notified the defendant that it would not accept the award, and subsequent

ly brought this action. The plaintiff was not a party to said submission, nor did it participate or acquiesce in the same or in the proceedings thereunder. Woodruff has never objected to or complained of the award. On the day upon which the plaintiff notified the defendant, as stated, that it refused to recognize the award, it obtained from Woodruff an assignment in writing of all his right, interest, and claim against the defendant by reason of said loss, and forthwith gave notice thereof to the defendant. The evidence disclosed no suggestion of bad faith on the part of either the defendant or Woodruff. The trial court ruled in favor of the plaintiff's contention that it was not payable to him as his interest may appear, of an accord and satisfaction between the insurer and the owner of the premises, see Hathaway v. Orient Ins. Co. 17 L. R. A. 514.

As to rights given generally by attachment of mortgage clause to insurance policy, see note to Phenix Ins. Co. v. Omaha Loan & T. Co. 25

As to effect on rights of mortgagee in policy L. R. A. 679.

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