lease in this case reserved a definite rent for the term of 999 years. Code Pub. Gen. Laws 1904, art. 21, §§ 88, 89, provide that all leases or subleases of land for a period of longer than 15 years shall be redeemable at the option of the tenant. These statutes were the outgrowth of earlier legislation intended to provide for the extinguishment of ground rents. Held, that the lessee of the railroad could not redeem under the last-mentioned statute. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 133.*] 4. RAILROADS (§ 133*) - LEASES - PRESUMP TIONS. Where the property of a railroad company was leased by virtue of Acts 1908, c. 126, it would be presumed, that all the property leased was to be used for railroad purposes, even though the lease included all property, real and personal, and all assets of every kind and description of the lessor. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 133.*] 5. ACTION (§ 8*)-Grounds OF ACTION-COLLUSIVE ACTIONS. Where a trustee who represented stockholders in a railroad and held stock therein brought an action to determine whether a lease of the railroad's property was redeemable, the action was not fictitious or colorable merely be cause a resolution made at the time of giving the lease provided for the bringing of the ac tion. [Ed. Note.-For other cases, see Action, Cent. Dig. 41; Dec. Dig. § 8.*] which it may be proper to dispose of, before considering the controlling question, as to whether the rent reserved under the lease is redeemable or not. It appears from an examination of the record that there are three appeals taken by the appellant in No. 66 and one by the appellant in No. 67. Two of these appeals are from the same order, and will be considered together, as they present the adjudication of the court upon the main question of law in its final order of the 30th of December, 1910, that the rent reserved is not redeemable. The two remaining appeals are, first from an order passed on the 30th day of December, 1910, as of the 28th day of December, 1910, upon the petition of the plainof Baltimore, trustee, directing "the question tiff below, the Safe Deposit & Trust Company of law" to be raised for the decision of the court; and, second, from an order passed on the 30th day of December, 1910, upon the petition of Thomas H. Buckler, the appellant in No. 66, filed on the 21st of December, 1910, making the petitioner a party to the suit. Subsequently, on the 3d day of January, 1911, a petition was filed in this court on behalf of Thomas H. Buckler, an intervening petitioner, and also a motion to dismiss the Appeals from Circuit Court of Baltimore appeal in No. 67, upon the ground that this City; Alfred S. Niles, Judge. court was without jurisdiction to entertain Suits by Thomas H. Buckler against the the appeal. The petition, in substance, avers Safe Deposit & Trust Company of Baltimore, that the case set up by the bill, was made as trustee, the Northern Central Railway for the purpose of instituting this suit, that Company and others, and by the Safe Depos- there is no real dispute between the plaintiff it & Trust Company of Baltimore, as trus- and the defendants, but that it is an attempt tee, against the Northern Central Railway by a mere colorable controversy and a fictiCompany and others. From decrees for de- tious suit to obtain the opinion of the court fendants in both cases, plaintiffs appeal. Af- upon a question of law. It was further alfirmed. leged that the interveners have instituted suit in the Circuit Court of the United States for the District of Maryland and in the Circuit Court of the United States for the East Argued before BOYD, C. J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, JJ. proceeding should be suspended until the decision of the cases in the last-named courts. Arthur W. Machen, Jr., and Wm. A. Glas-ern District of Pennsylvania, and that this gow, Jr., for appellant Buckler. Edwin G. Baetjer, George R. Willis, and Bernard Carter, for Safe Deposit & Trust Company and others. BRISCOE, J. The single question of law presented by the record on these two appeals, and the one decided by the court below, is this: Is the rent reserved by a lease between the Northern Central Railway Company, a corporation of the states of Pennsylvania and Maryland, and the Pennsylvania Railroad Company, a corporation of the state of Pennsylvania, redeemable under and by virtue of section 88 or section 89 of article 21 of the Code of Public General Laws of Maryland (Code 1904). There are several subordinate or preliminary questions presented in argument and on the various motions to dismiss the appeals relating to the rules of correct practice and the right of appeal in this character of case, On the 3d day of February, 1911, there was also filed a suggestion and petition by Arthur W. Machen and J. Seymour T. Waters, as amici curiæ, presenting the identical questions, and asking the court to dismiss these proceedings and the appeal in No. 67. On the 31st of January, 1911, the Safe Deposit & Trust Company of Baltimore City, trustee and the appellant in No. 67, filed an answer to the Buckler petition, and which it will be seen also answers the allegations of the Machen and Waters petition, denying that the suit was colorable or fictitious or made solely for the purpose of raising the question presented by the proceedings, and averring, in substance, that the allegations of these petitions are not sustained or justified by the facts. Now assuming, without deciding, that these petitions and the motions thereon are properly before the court, we all agree that [1] We also hold that the order of the circuit court of Baltimore city passed on the 30th day of December (as of the 28th of December), 1910, on the petition of the plaintiff, directing, first, that a question of law be raised for the decision of the court, and, secondly, that for the purpose of the hearing the intervening petitioners should have the right to be heard as if they were parties to the suit, was a proper order, and the objections urged against it cannot be sustained. By section 196 of article 16 of the Code of Public General Laws of 1904 it is provided, if it appear to the court, either from the pleadings or otherwise, that there is a question of law in any case, which it would be convenient to have decided before any evidence is given, or any question or issue of fact is tried, the court may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient; and all such proceedings as the decisions of such questions of law may render unnecessary may therefore be stayed. they are without merit, and must be over- | property. The agreement containing the ruled for reasons hereinafter stated. terms and conditions of any proposed lease shall after due approval by the board of directors of each company party thereto be submitted to the stockholders of such one or more of said railroad companies as shall have been incorporated under the laws of this state at either a special meeting thereof, duly called in accordance with the charter and bylaws of the companies whereof they are stockholders for the consideration of the same, or at any annual meeting thereof, likewise duly called, and in the call for which it shall be stated that the said agreement will be considered at such meetings; and, if approved by a vote of not less than threefourths of the capital stock of such company or companies outstanding and entitled to vote, the said agreement shall then be duly executed by each of the parties thereto, and, when so executed, a copy thereof duly certified by the secretary of each of the companies parties thereto under their respective seals, shall be filed in the office of the Secretary of State of the state of Maryland, and upon such filing the said agreement and the lease thereby effected shall become and be in full force and operation in accordance with its terms. It will be seen that Act 1884, c. 485, Act 1888, c. 395, and Act 1900, c. 207, are now codified as sections 88 and 89 of the Code of Public General Laws of 1904, and they relate and regulate the leasing of land and to abolish the ground system of Baltimore city. The act of 1900, now section 89 of the Code, is as follows: "All rents reserved by leases or subleases of land ** * * hereafter made in this state for a longer period than fifteen years shall be redeemable at any time after the expiration of five years from date of such lease or sublease, at the option of the tenant, after a notice of one month to the landlord for a sum of money equal to the capitalization of the rent reserved at a rate not exceeding six per centum." These acts of assembly have been before this court for construction, and the legislation intended thereby has been approved by us. Plaenker v. Smith, 95 Md. 389, 52 Atl. 606; Myers v. Silljacks, 58 Md. 319; Stewart v. Gorter, 70 Md. 242, 16 Atl. 644, 2 L. R. A. 711; Banks v. Haskie, 45 Md. 207; Swan v. Kemp, 97 Md. 690, 55 Atl. 441. [2] It is clear we think that the court's order of the 30th of December, 1910, answering the question raised under section 196 of article 16 of the Code, above quoted, is an appealable order. Such an order is in the nature of a final decree, and from which a party has a right of appeal. Ridgely v. Cross, 83 Md. 168, 34 Atl. 469; McEvoy v. Security Fire Ins. Co., 110 Md. 275, 73 Atl. 157, 22 L. R. A. (N. S.) 964, 132 Am. St. Rep. 428; Dillon v. Insurance Co., 44 Md. 395; Chappell v. Funk, 57 Md. 472; McNiece v. Eliason, 78 Md. 168, 27 Atl. 940. [3] This brings us to the substantial question in the case, and the one answered by the court below; that is, whether the rent reserved by the lease filed with the bill of complaint is redeemable under or by virtue of section 88 or section 89 of article 21 of the Code of Public General Laws of Maryland of 1904. We are of opinion, after a careful examination of the lease here in controversy, that it is a lease under the provisions and within the purview of Act 1908, c. 126, authorizing the leasing of railroads and their franchises, and not a lease under sections 88 or 89 of article 21 of the Code. By Act 1908, c. 126, it is provided in part (section 265a) that it shall be lawful for any railroad company incorporated under the laws of this state to lease its railroad and franchise for the operation thereof to any other railroad company incorporated under the laws of this or of any other state of the United States whose railroad within or without this state shall either directly or by means of intervening line connect with the railroad so to be leased to said company, and thus forming a continuous route or In Swan v. Kemp, supra, this court said: "The further inquiry now is what effect did Act 1888, c. 395, which repealed and re-enacted Act 1884, c. 485, and which, in turn, was repealed and re-enacted by Act 1900, c. 207, have upon the rights of the parties to the lease in controversy. The act of 1884 in question was not, as has been contended, an act in any way providing or denouncing a penalty. It was designed to regulate the making of a class of contracts affecting property rights of those owning and dealing in real estate, and to establish a policy in relation thereto. The subsequent legislation of and a fair construction of the lease itself would be, that the property was to be used for railroad purposes, and that the lease extended to property owned and used by the railroad for its corporate purposes incident to the operation and management of its fran [5] As to the question of jurisdiction raised by the intervening petitions, we need only say that it appears from the averments of the plaintiff's bill and in its answer to the petition of Thomas H. Buckler, the appellant in No. 66, that the controversy involved in this proceeding is not a fictitious or colorable one, and that the proposed lease is a real and a bona fide instrument. The lease 1884, c. 485, did not repeal it in the sense of obliterating it and doing away with its object and effect; but was enacted in furtherance of the object of the act which it thus repealed and re-enacted. The latter was substantially re-enacted, and the main and fundamental provisions thereof were chise. There is nothing in the record or on preserved and embodied in the new law. the face of the lease to rebut this presumpThe change was made only in regulations af- tion. fecting the practical operation of the law." The subject-matter of the legislation provided for by section 89 of article 21 of the Code is leases of land, and they are redeemable according to the terms prescribed by the act. The subject-matter of the legislation and the lease authorized by Act 1908, c. 126, is not the lease of land, but of a railroad and its franchises and the system constituting the railroad in operation. This act manifestly is approved by a vote of more than threeintended that such leases should be permanent in duration, and not redeemable, except upon the terms and conditions, fixed by the lease itself. It would not only be an unreasonable construction to hold that leases of this character were subject to the provisions of section 89 of article 21 of the Code and thereby redeemable according to the terms of section 89, but would defeat the clear and manifest purpose of the act of 1908, authorizing the making of a lease for any extended period or duration by one railroad company to another. The lease in this case is for and during the full term of 999 years, yielding and paying the annual rent of $2,166,368, payable in half yearly instalments, being equivalent to 8 per cent. on the sum of $27,079,600 and representing the aggregate par value of the lessor's issued and outstanding stock of $19,342,550, and the increase of $7,737,050 in such capital stock to be made and issued as stock dividend when duly authorized in connection with the lease. If, then, a lease of a railroad made under and in compliance with the provisions of Act 1908, c. 126, should be held to be subject to section 89 of article 21 of the Code, as urged in this case, such a lease could be terminated at the end of five years from the date of such lease, thereby defeating the object and purpose of the statute itself, and the intention of the parties to the lease. fourths of the issued and outstanding stock of the Northern Central Railway Company, lessor, and by the approval of the Pennsylvania Railroad Company, lessee. The "resolution" is filed with the bill as an exhibit, and is made a part thereof, and it is upon this proviso and condition that the principal question is raised, as to whether the rent is redeemable. It is as follows: "Provided, however, that said lease shall not be delivered prior to the first day of March, A. D. 1911, unless on or before that date it shall have been determined and adjudged by the Court of Appeals of Maryland that the rent thereby reserved is not redeemable and that the lease is not within the scope of the existing statute of Maryland authorizing the redemption of leases of land." But, apart from this, the proceedings here adopted were clearly in line with the plaintiff's duty as trustee to protect the interest of the stockholders which it represented. The plaintiff held, it is alleged, at the time of filing the bill, approximating 5,000 shares of the capital stock of the Northern Central Railway Company, and was thereby directly interested in having the question of the redeemability of the rent determined. Nor is there any force in the contention, under the facts of this case, that these proceedings should be suspended until the de cision of the suits in the federal courts. The questions seem to be somewhat dissimi [4] But it was contended with much urgen-lar, but nothing we have here said is intendcy in argument that the lease in this case is in excess of the authority conferred by the act of 1908, because after demising the railroad of the Northern Central Company and all property appurtenant thereto it adds, "and all the property, real and personal and all the assets of every kind and description of the lessor," and that any surplus lands would be redeemable under section 89 of article 21 of the Code. The answer to this contention we think is that there is nothing in the record to show that the lease includes property owned by the lessor, not used in connection with its railroad, or the opera ed to affect any question except the one involved in and raised on this record, to wit, whether the rent reserved under this lease is redeemable under section 89 of article 21 of the Maryland Code. City of North Muskegon v. Clark, 62 Fed. 694, 10 C. C. A. 591; Gordon v. Gilfoil, 99 U. S. 168, 25 L. Ed. 383. It is difficult to conceive in what way the determination of the question in the form it is presented here can injure the rights of the minority stockholders. The interest and rights of the majority and minority stockholders appear to be the same. All of the parties and stockholders have been repre sidered, and will be passed upon by the de- five-eighths, the trust to continue until the cision of the question here involved. death of the last surviving daughter. Dig. 88 1631-1637; Dec. Dig. § 686.*] [Ed. Note.-For other cases, see Wills, Cent. OF PROPERTY-POWER OF SALE IN INSTRU- In the view we take of this case, it is not necessary for us to discuss the other questions presented in argument, because, we all agree that the rent reserved by the lease filed with the bill of complaint is not redeemA testator devised to his three sons and able under or by virtue of section 88 or sec- personal representatives, and assigns of the the survivors or survivor of them, and the heirs, tion 89 of article 21 of the Code of Public survivor all his residuary estate in trust, to set General Laws of 1904, and that the lease is apart five-eighths of the estate and to convert not within the terms of the statute, author-collect the rents and profits, and, after paying it into other property or investments, and to izing the redemption of leases of land, but the necessary expenses, to pay semiannually the is a lease within Act 1908, c. 126, authoriz- net income from the five-eighths in equal parts ing any railroad company incorporated un- death of any one of them, to hold one-fifth of to each of his five daughters, and, after the der the laws of this state to lease its rail- such five-eighths for the child or children of the road and franchises, as stated in the act. decedent. The survivors or survivor of the trustees were authorized to mortgage the trust property, to lease it on terms as they should think proper, and they and the survivors or survivor were empowered to sell such parts of it as they should think proper, and to invest the proceeds for the benefit of the daughters. The estate was administered by the trustees until the death of the sole surviving trustee in 1904, at which time a trust company was ap For these reasons, the decree of the court below of the 30th day of December, 1910, will be affirmed on both appeals. Decree affirmed, with costs. (115 Md. 339) MARYLAND CASUALTY CO. v. SAFE DE. pointed trustee, and its agreement to sell real POSIT & TRUST CO. OF BAL- (Court of Appeals of Maryland. April 4, 1911.) 1. TRUSTS (§ 243*)-APPOINTMENT AND SUCCESSION OF NEW TRUSTEE-POWERS-PROVISIONS OF WILL CREATING TRUST. Where a power lodged with the trustees in connection with the trust is a special confidence in a particular trustee or set of trustees, or is to be exercised only upon his or their personal judgment, such power will not pass to a substituted trustee; but, where the power is annexed to the office of trustee for the purposes of the trust and to promote its objects, then it will pass with the trust to the successors of the original trustees, and can be exercised by them. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 350; Dec. Dig. § 243.*] 2. TRUSTS (§ 243*)-CONSTRUCTION OF TESTA MENTARY TRUSTS-INTENTION OF TESTATOR. Whether a power of sale conferred by a testamentary trust is a special confidence reposed in the trustees and their survivors or survivor, to be exercised only upon their personal judgment, or whether it is annexed to the office of trustee for the purposes of the trust and to promote its objects, is dependent upon the intention of the testator, which is to be ascer; tained by considering the will as a whole, and which, when ascertained, is to be carried out unless some imperative rule of law prevents. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 350; Dec. Dig. § 243.*] 3. WILLS ($_686*)-CONSTRUCTION OF TESTAMENTARY TRUST-DURATION OF TRUST. A testator devised to his three sons and the survivors or survivor of them and the heirs, personal representatives, and assigns of the survivor all his residuary estate in trust, to set apart five-eighths thereof, and to collect the rents and profits thereof, and, after the payment of necessary expenses, then to be held in trust to pay the income in equal parts to each of his five daughters for life, and, after the death of any one of them, to hold one-fifth of such five-eighths for the child or children of the deceased daughter. The trustees were given power to mortgage, sell, or lease the whole or a part of the trust property. Held, that the daughters took an equitable life estate in the estate was approved by the circuit court. At Dig. § 350; Dec. Dig. § 243.*] Appeal from Circuit Court of Baltimore The Safe Deposit & Trust Company of Baltimore, as substituted trustee under the will of Arunah S. Abell, reported to the circuit court for Baltimore city its agreement to a sale of land held by it as trustee under the will to the Maryland Casualty Company, and from a final order of the circuit court, approving and ratifying the sale, the Maryland Casualty Company appeals. Affirmed. See, also, 75 Md. 44, 23 Atl. 71, 25 Atl. 389. Argued before BOYD, C. J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, JJ. Frank Gosnell, for appellant. Charles McH. Howard, for appellee. PATTISON, J. Arunah S. Abell by the sixteenth item of his will devised and bequeathed all the rest, residue, and remainder of his estate, real, personal, and mixed, not disposed of in the 15 preceding items thereof, unto his three sons, Edwin F. Abell, George W. Abell, and Walter R. Abell, and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of the survivor, in trust, nevertheless, that they or municipal bonds or certificates of indebtshould value and set apart of the same, edness of the most assured character, or in property real and personal to the value of bonds or certificates of indebtedness of the five-eighths parts, and after converting such United States as they or he may think proper parts of said five-eighths of the said rest, with power to change any investment or inresidue, and remainder of the estate, as vestments so made from time to time into therein mentioned, into other property or in- another investment or into other investments vestments, as therein specified, they should belonging to any one or more of the classes hold the same in trust to collect the rents, of property in this clause of my will indicatissues, and profits accruing therefrom, and, ed but every instrument made by my said after paying therefrom the necessary expens-trustees or the survivors or survivor of them es, the charges, and liens therein named, to pay semiannually such net income from the said five-eighths parts of the said rest, residue, and remainder of his estate and of any accretions thereto in equal parts to each one of his five daughters, Mary L. Abell, Fannie A. Abell, Annie F. Abell, Helen M. Baughman, and Margaret Abell, for and during their natural life, and, after the death of any one of them, in trust to hold one-fifth part of the said five-eighths parts of such residue and remainder of the estate for the child, if only one, of the said daughter so dying, or for the children, if more than one, of the daughter so dying, share and share alike. By the seventeenth item of his will the remaining three-eighths parts of the said residue and remainder of his estate devolved upón and vested in his said three sons, Edwin F., George W., and Walter R. Abell, in equal parts, as tenants in common. The eighteenth item of his will empowered his said trustees, "the survivors or survivor of them," to raise from time to time, by mortgage upon any real or leasehold estate so set apart for the benefit of his said daughters, any sum or sums of money necessary for the repair or improvement of such real or leasehold estate, providing therein that the mortgages so executed and the interest thereon and all expenses and charges connected therewith should "constitute a charge upon that part of the real and personal estate so mortgaged, and in case of deficiency, upon the real and personal estate so set apart for the benefit of my (his) daughters." in the exercise of this power shall be subject to the trusts declared in this will in relation to the real and personal estate so set apart for the benefit of my said daughters and of each of them." In the twenty-first item of his will he empowered his "said sons, Edwin F. Abell, George W. Abell and Walter R. Abell, and the survivors or survivor of them, to manage and direct all affairs and concerns relating to any property devised and bequeathed to them in trust by this my will * they or he in their or his judgment may think best adapted to promote the interests of the said respective trusts." as The record discloses that, upon the death of the testator, Walter R. Abell declined to accept the office of trustee under said will, but Edwin F. Abell and George W. Abell accepted the same, qualified as such, and subsequently, at their request, by proceedings instituted by them, the circuit court for Baltimore city assumed jurisdiction over the administration of said trust, and Edwin F. Abell and George W. Abell continued to administer said trust under the supervision of said court until the death of George W. Abell on May 1, 1894, after which time Edwin F. Abell, as sole surviving trustee, administered said trust under the supervision of the court until his death in February, 1904. After the death of Edwin F. Abell, the circuit court for Baltimore city, upon the petition and consent of the beneficiaries and the deceased trustees, common-law heirs, and executors, by its order passed March 19, 1904, appointed the Safe Deposit & Trust Company of Balti By the nineteenth item of his will he empow-more City, the appellee, trustee in place of ered his said "trustees, * and the survivors or survivor of them, to make and execute from time to time any lease or leases for any purpose whatsoever, upon such terms as they or he shall think proper, of any part of the real or leasehold estate so set apart for the benefit of" his said daughters. By the twentieth item of his will, the item which is particularly involved in this case, it is provided: "I further empower my said trustees of the rest, residue and remainder of my estate as aforesaid and the survivors or survivor of them to sell from time to time any portion of the property, real, personal or mixed so set apart for the benefit of my said daughters upon such terms as they or he may deem to be proper and to invest the proceeds of any such sale or sales in real or the said Edwin F. Abell, "to administer the trust created by said will, with all powers which by said will were conferred upon the trustees named therein, the survivors or survivor of them, under the direction and supervision of the court in this cause." The record further discloses that, after the appointment of the appellee as trustee, it sold at private sale, at different times, 11 parcels of land held by it as such trustee, the sales thereof amounting in the aggregate to $232,406.76. The sales of these lands were by the trustee reported to and confirmed by the court. On the 5th day of October, 1910, the appellee as trustee reported to the circuit court for Baltimore city an offer made to it by the appellant, the Maryland Casualty Company, to purchase at and for the sum of |