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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 347   View pdf image (33K)
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HOLLINS VS. MAYER ET AL. 347
ing creditors, therefore, were to be paid no more than the
dividends of the trust fund, distributable to their respective
claims, and in ascertaining the amount of such dividends,
regard was to be had to the whole amount of claims specified
in the schedules attached to the deed. If the trust fund
should prove to be inadequate to the payment of all the
creditors, the assenting creditors were to receive only divi-
dends, and were not to have divided among them the shares
of the creditors who refused to comply with the conditions of
the deed, but those shares, by its explicit terms, were to be
held " subject to the demand and control of John Hollins,"
&c.
The argument, therefore, that these dividends should be
divided among the creditors who executed the releases, is in
direct conflict with the provisions of the deed, to the terms
and conditions of which they gave their positive assent, and
the benefit of which, in consideration of that assent, they have
enjoyed by receiving the dividends, which otherwise they could
not have claimed.
The argument, also, that the creditors who have not assented
are entitled to the benefit of this fund, cannot, I think, be
maintained, because in that case they would, without complying
with the terms of the deed, receive the same benefit under it
as those who did assent to it, by releasing the grantors. It
would in effect be destroying a most material stipulation of
the deed, and defeat one of the principal inducements to its
execution.
It ia said, however, in the argument of the defendant's soli-
citor, that John Hollins has over this fund no more than a
power of appointment. I do not concur in this argument. It
is clear beyond controversy that this surplus, according to the
provisions of the deed, was neither to be paid to the assenting
or dissenting creditors, but, in the language employed in the
instrument, was to be held by the trustees, " subject to the
order and control of John Hollins, his executors, administra-
tors, or assigns." The surplus, therefore, after paying the
dividends of the releasing creditors, was to go back to John

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 347   View pdf image (33K)
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