49 Minn. 57 | Minn. | 1892
This was an action brought for the purpose of obtaining from the court a construction of a certain trust deed in which plaintiffs were named as grantees, executed and delivered October 1, 1888, by one Bichard Martin, since deceased. It is the trust deed mentioned in the codicil to the last will and testament of said Martin, ante, p. 31, (51 N. W. Rep. 624.) That action was brought by these plaintiffs, as executors, against these same defendants, as heirs at law and devisees. The deed purports to convey to plaintiffs, as trustees, valuable real property in Hennepin county, Minnesota.
Plaintiffs accepted the trust in writing October 1st of the same year. All of the defendants took part in the trial below, but the Sheltering Arms made no claim adverse or hostile to that of St. Barnabas’ Hospital. Both of these institutions were and are located in the city of Minneapolis, in which place Mr. Martin resided for many years during his lifetime, accumulating a handsome fortune. The plaintiffs and St. Barnabas’ agreed below, as well as on appeal, each claiming that the deed was valid, either as creating a trust, or a power in trust, and that its provisions were ample and sufficient in respect to St. Barnabas’. St. Luke’s Hospital contended along this same line until a certain point was reached, and then declared that the trust or power in trust attempted to be created by the deed was absolutely void as to St. Barnabas’, but valid as to St. Luke’s. The heirs at law — a common enemy — claimed that the deed was void both as a trust and as a power in trust. The court below, on findings of fact, by its conclusions of law construed the instrument in accordance with the amicable views of plaintiff trustees and defendant St. Barnabas’ Hospital.
By the terms of the deed in question the trustees therein named were authorized and directed to perform three distinct acts in relation to the property: First, to collect the rents and profits from the same, using the sums collected for the payment of taxes and in paying the expenses of carrying out the trust, any deficiency in respect to these matters being made a charge upon the property; second, to sell the land; and, third, to pay over the proceeds to one of two beneficiaries then in existence and designated by name ; the rights of
1. It was claimed that by the terms of the deed there was a suspension of the power of alienation of land not measured by the duration of two lives in being at the time of its execution, and hence in contravention of the statute. This claim was founded upon the provisions of the deed whereby the time of sale was prescribed. The period of time within which the trustees should sell was absolutely limited to the ten years next ensuing, and it was further provided that sale should be made “as soon as in the judgment of my said trustees the said lands can be sold for a reasonable price, compared with other lands in the vicinity.” This clause was practically the
2. It is contended in behalf of the heirs with much plausibility that by the provisions of the deed there has been effected a suspension of the ownership of the proceeds of a sale of land, forbidden by the rule of the common law against perpetuities, and which avoids the instrument. The contention is that by its terms the trustees not only have the power to suspend and postpone indefinitely a designation as between the two beneficiaries named, but that they may postpone and suspend at will the payment over of the proceeds of a sale; that they were directed not to act absolutely, but conditionally only. The contention really goes further, and is that the conditions and contingencies specified in the deed, on the fulfillment and happening of which the trustees were to designate the beneficiary, may never happen, are indefinite in meaning, and impossible of execution. To determine the merits of this claim there must be made a critical, but not captious, examination of the whole deed, that we may discern, if possible, the intent, plan, and purpose of the grantor, bearing in mind that it is the policy of the law not to seek grounds to avoid a conveyance, but to endeavor to uphold it, if it can be done on sound legal construction.
It is our duty, however, to carefully weigh and consider each objection made to the deed, and to give full effect to any which may be sufficient to render it void in law. By the paragraph numbered 2, and by the very terse sentence which commences paragraph numbered 3 in the deed it is plain that the grantor required a sale to be made as soon as a reasonable price could be obtained for the land, and that in no event should such sale be postponed beyond the expiration of the period of ten years then next ensuing. This provision as to a sale was absolutely “out and out,” and, although there was some latitude as to the exact time of sale, it was to take place within ten years in any event. A sale and a payment of the proceeds to one of two beneficiaries named were imperatively commanded. In express terms the deed then directs that the proceeds “should be appropriated” to St. Barnabas if a certain condition of affairs is found to exist with reference to it by the trustees. On the other hand, should this condition of1 affairs be found not to exist, the appropriation of the proceeds is to St. Luke’s. In the use of the somewhat peculiar phrase “shall be appropriated” there is nothing to indicate that it was the plan or purpose of the grantor to have payment deferred or postponed for any period of time whatsoever. In fact, these words suggest an immediate appropriation or application of the proceeds to the use of one of the beneficiaries, which is to be directly ascertained and resolved upon, before or when the pro-
Just what Mr. Martin had in mind when speaking of the proceeds which might remain in the hands of his trustees — the last clause in paragraph 4 — seems somewhat doubtful. Possibly he referred to the proceeds to be turned over, — the net proceeds, — which would be the sum realized at a sale plus the rents and profits and minus the amounts paid out for taxes-and expenses of the trust. Or he might have contemplated a sale- of the lands in parcels, on different days, and that the power of selecting a beneficiary should
3. By counsel for the heirs it is argued at length that as to the beneficiary there is an uncertainty in the deed, which, as to St. Barnabas’ Hospital, renders it invalid; and, further, that as to the subject-matter of the trust there is an uncertainty in the instrument, which, as to both St. Barnabas’ and St. Luke’s, renders it invalid. The counsel for the last-named institution heartily indorses the first of these propositions, but strongly condemns the second. It has been noticed that in paragraph 3 it is directed that the money conditionally given to St. Barnabas’ is not to be used on buildings, but for the support of charity patients therein. This provision is right in line with the purpose of Mr. Martin, elsewhere indicated in the deed, of having>“such steps taken by the churches as would convince the trustees that the hospital named would be sufficiently and permanently supported and sustained by the churches before the money was paid over, because the erection of buildings in which eharity patients could be placed, there to have the benefit of Mr. Martin’s benefaction, would, of itself, go a long way towards satisfying the trustees of the stability and permanency of the institution. The contention is, on this point, that charity patients in St. Barnabas’ Hospital, and not the hospital itself, became the beneficiary under the deed. And, further, that, because such patients are an indefinite and unascertainable body or class of people, they are incapable of taking as beneficiaries, and the trust, as to them, must fail. However this may be, it is enough to say that St. Barnabas’ Hospital is the beneficiary upon condition, and not such charity patients as it may receive, shelter, and aid. To it is given the custody, control, and disposition of the money; the donor thereof merely indicating his intention to have it used for one of the purposes for which the institution was established. St. Barnabas’ Hospital was none the less the beneficiary of the money because Mr. Martin specified that his gift to it should be used in a certain direction, and that charity patients alone should have the benefit to be derived
Authority is conferred upon corporations of the character of St. Barnabas’ by 1878 G. S. ch. 34, § 174, to acquire property by gift, but they are prohibited in the same section from diverting such gift from the specific purpose designated by the donor. The claim that an indefinable, unascertainable beneficiary, described as the “charity patients of St. Barnabas’,” was named in the deed, is without foundation.
The argument of counsel for the heirs that the deed is invalid, because uncertain as to the subject-matter of the trust, is, in part, based upon that clause in the instrument which directs that the rents and profits derived from the land shall be applied to the payment of taxes and the expenses of conducting the trust, a deficiency, if any, being made a charge upon the property itself, and in part upon the somewhat ambiguous clause wherein Mr. Martin referred to any portion of the proceeds which might remain in the hands of his trustees. Undoubtedly the declaration of a trust must be reasonably certain in its material terms, and this requisite of certainty includes the subject-matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of interest which they are to have, and the manner in which the trust is to be performed. In substance this is the law as stated in 2 Pom. Eq. Jur. § 1009. But from an examination of the instrument in question it is evident that the entire proceeds which should come to the trustees, whether as rents or profits or from a sale of a certain described tract of land, were to be paid over to one of two designated beneficiaries, less such sums as might be required for the payment of taxes and the expenses of the trust. The exact sum which should go to one or
4. It is further asserted, and at great length argued, by counsel for the heirs that the conditions -upon which the trust is to be executed are indefinite and uncertain, and that the trust is undefined. And, further, that the provisions of the deed are so vague, indefinite, and uncertain as to be incapable of enforcement by judicial decree, therefore invalid. . So far as it seems advisable for the safety of his client as a beneficiary contingently, counsel for St. Luke’s Hospital holds the same views. Much that has heretofore been said has a bearing upon and can be applied to these assertions. . The respondents regard the instrument. as creating a general power in trust for. the benefit of two designated beneficiaries, with a valid discretionary power in the trustees of selecting between them.
Under ofir statute- -1878 G. S. ch. 44, § 25, — a trust power does not cease to be imperative, where the grantee has been given the right to select as between the persons designated as the objects of the trust, so that the power now being considered would have been valid beyond doubt had the trustees been given unlimited discretion as between St. Barnabas! and St. Luke’s, — simply directed to pay the .proceeds to the hospital which, in their judgment, was best entitled or most de-i serving. Power v. Cassidy, 79 N. Y. 602. Instead of investing the trustees with uncontrolled discretion as between the two, Mr. Martin
If they were satisfied that St. Barnabas’ was so situated and circumstanced as to assure its permanency as a church hospital, then the entire proceeds were to ,be awarded to it. If the prescribed condition of permanency -was found not to exist to the satisfaction of the trustees, St. Luke’s became the beneficiary absolutely. There was a discretion to be exercised, as is usually the case where a trust relation is created. But it was as to but one of the contemplated beneficiaries, not as to the other, and a rule or guide was furnished for the exercise of this discretionary power. If anything, it was less difficult to exercise this power than it would have been had the trustees been required to compare the claims and merits of each, and decide as between them; for the limits of the discretionary power were not only circumscribed, but well defined. We see no reason why the provisions of the trust deed and the duties of the grantees therein could not be enforced by judicial decree, for it seems manifest that a designated beneficiary, entitled to compel tüe exercise of a power for its benefit, is not lacking; there is a distinct trust fund, the source of which is arbitrarily fixed, and the amount sure to be ascertained; and, in our opinion, there is no want of certainty as to the manner in which the trust is to be performed. WTrile the authorities seem to be at variance, and frequently confusing, an examination-of a few, which we cite out of a much larger number, will demonstrate that much more indefinite and uncertain powers than those found in the Martin deed have'been upheld by the courts. Ould v. Washington Hospital for Foundlings, 95 U. S. 303; Quinn, v. Shields, 62 Iowa, 129, (17 N. W. Rep. 437;) Dodge v. Williams, 46 Wis. 70, (1 N. W. Rep. 92, 50 N. W. Rep. 1103;) Fadness v. Braunborg, 73 Wis. 257, (41 N. W. Rep. 84;) Loring v. Blake, 98 Mass. 253; Lorings v. Marsh, 6 Wall. 337; White v. Ditson, 140 Mass. 354, (4 N. E. Rep. 606;) Lyman v. Parsons, 26 Conn. 493; Miller v. Teachout, 24 Ohio St. 525; Delany v. Delany, L. R. Irish 15 Ch. Div. 55.
The much-discussed and very recent case of Tilden v. Green, 130 N. Y. 29, (28 N. E. Rep. 880,) has brought forth comment from the
5. As to the sixth point made in the brief of counsel for the heirs, we are of the opinion that 1878 G. S. ch. 43, § 11, subd. 5, supra, has no bearing upon the questions now before us.
6. The testimony hate been carefully examined in connection with the assignments of error relating to the same. None of the assignments were well taken, and none need special consideration.
Order affirmed.
(Opinion published 51 N. W. Rep. 629.)
APPLICATION TO TAX COSTS.
This action, which is brought for the construction of a certain deed conveying lands to the plaintiffs in trust for certain purposes, and also another action brought against the same defendants, except the St. Luke’s Hospital, for the construction of the will of Richard Martin, deceased, were determined in the district court adversely to the defendants Anna S. Russell et al., heirs at law, and the St. Luke’s Hospital, and in favor of the claims of the plaintiffs, and of the defendants St. Barnabas’ Hospital and the Sheltering Arms.
Certain questions are now brought before us in relation to the allowance of costs in this court. Separate appeals were brought by the defendants Russell and others, heirs at law, and by the St. Luke’s Hospital, and in each the notice of appeal was served upon the plaintiffs, and upon the defendants St. Barnabas’ Hospital and the Sheltering Arms. This was the correct practice, and was necessary in order to secure a final determination of the hostile claims of the defendants as between themselves. The plaintiffs and the corporations last named are the respondents and the prevailing parties in this court, and the other defendants are the defeated or unsuccessful parties.
The authority of this court to award costs is regulated and limited by the statute, and the court has no equitable or discretionary power other than the statute confers. Downing v. Marshall, 37 N. Y. 387.
The statutory provisions are that the prevailing party be allowed his disbursements necessarily paid or incurred, and in addition thereto an amount as costs not exceeding the statutory limit, in the discretion of the court. 1878 G. S. ch. 67, § 16 et seq.
Under the statutes of New York, in certain actions the court may order extra allowances as costs, and in equity cases discretion is given to allow or apportion the costs as may be just, within the statutory limit as to the amount. Beyond this the courts recognize no chancery powers to add allowances for counsel fees. And the same rule governs in actions for the construction of wills. Downing v. Marshall, supra.
Allowances to trustees for their expenses in suits rest upon a different principle.
It is, however, the practice in that and some other states to direct the taxable costs of all the parties in such actions to be paid out of the estate.
But that rule is not applicable here, under the strict language of the statute we have referred to.
This court has no power to grant costs to the defeated party, nor to relieve him from the payment of the costs allowed to the prevailing party, except in the exercise of the discretion which the statute allows. In the case at bar we think no statutory costs should be allowed in favor of or against any of the parties. But under the statute the disbursements of the prevailing parties must be taxed and allowed according to the usual course and practice in this court, to be taxed against the defendants Bussell and others and the defendant St. Luke’s Hospital, in proportion as the same may have been incurred in each of the respective appeals.