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164 HIGH COURT OF CHANCERY. No case has, however, been decided precisely like the present, and perhaps it may be said that the principle which has gov- erned the courts in the cases in which the question has arisen does not apply to it. That principle, as shown in the opinion given by Daniel Dulaney, Esq., to the Governor acting as Chan- cellor, rests upon three reasons. "That the issue ought to go to the person to whom the use is limited, otherwise having no interest worth regarding, he might not take care of the issue." "That it-would only be a reasonable satisfaction for the expense of maintenance and for time lost by the parent," and that "when the use is given, a bounty at all events is intended, but instead of a benefit, if the issue should go over, there might be a loss." These are the reasons upon which the right of the legatee has been placed, and perhaps they would not be con- sidered applicable to a case in which the legatee is not charged with or bound to provide for the support of the issue in infancy or to take care of the parent during her pregnancy, though his- income from the trust estate might be diminished by the appli- cation of a portion of it by the trustee to those objects. In this case, and under this will, it is the duty of the trustee out of the income of the trust estate to maintain and support the issue of the female slaves during their infancy, and, therefore, there can be no actual loss to the legatee for life if the issue goes over to those who are entitled in remainder, he being under no personal obligation to support such issue, nor, for the same reason, is there any danger that the issue will suffer, because none may feel a sufficient interest to take care of them, it being, as I think, the duty of the trustee so to do, out of the profits of the trust estate. In this will, a mass of property, consisting of real and personal estate, is devised and bequeathed to a trustee, the income arising therefrom, to be applied for the benefit of two persons for life. The right to the possession of the property did not pass by the will, nor are any of the corresponding obligations thrown upon the legatees, which such rights of possession would impose upon them, and upon the existence of which obligations their title to the issue has been placed. They are to enjoy the income of |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 4, Page 164 View pdf image (33K) |
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