8 Conn. 47 | Conn. | 1830
1. The first question raised by the defendants, is, whether a trust is created by this will in favour of the brothers and sisters and their children. On this point there can be no doubt. The words used are not only recommendatory, but imperative. The executors are directed to settle his estate according to his will, and to dispose of it among his brothers and sisters and their children. The cases on the point are all one way. Pierson v. Garnet & al. 2 Bro. Ch. Ca. 38. 226. Harding v. Glynn, 1 Atk. 469. Malim v. Keighley, 2 Ves. jun. 333. 335. Paul v. Compton, 8 Ves. jun. 380. Parsons v. Baker, 18 Ves. jun. 476. This point was not much doubted by the counsel; and, I think, there is no room for any doubt.
2. Are James Bull and Thomas Bull, the executors and trustees, and their children, excluded? There is as little doubt on this question. On recurring to the terms of the devise, it is difficult to see how the testator could have intended, as objects of his bounty, James Bull and Thomas Bull and their children. The expression is “among our brothers” &c. Had it been my brothers &c., the construction might have been different. It is probable, that the testator considered James and Thomas as men of property, and therefore not needing his charity, but safely to be entrusted with the disposition of his property among those of his and their brothers, &c. who were less affluent. A devise to a brother A., in trust to dispose of it to his brothers B. and C., would scarcely shew more clearly his intention that A. was not the object of the testator’s bounty, and that B. and C. were. This point, like the former, has not been urged with any confidence.
3. The next question is, who can take as devisees under this will? Shall it be limited to those in being at the testator’s
4. The great question, however, is, whether the devise is not void for uncertainty. Here, it is insisted, first, that the devise is wholly void, for that no persons are described with such certainty that they can take. And secondly, if by the most needy, any persons could be designated, so that the executors could execute the trust, yet it was to be done at their discretion; and they being dead, without ever having exercised that discretion, the court cannot now exercise it.
It is an undoubted principle, that the intention of the testator shall be effectuated, if it can be done consistently with the rules of law. We enquire, then, first, if this devise is void, on the ground of the total uncertainty of the persons of the devisees? I think not. It is unlike the cases put in Powell on Devises 418., where the devise was to two of the best men of the White Towers, or to one of the sons of J. S., he having several sons, or to twenty of the poorest of his kindred. In this case, the executors are certain persons, viz. James and Thomas Bull, capable of executing the trust, if it could be executed at all. Unlike, also, to the Baptist Association & al. v. Hart’s Executors, 4 Wheat. 1. where the request was to, the “ Baptist Association that for ordinary meets at Philadelphia annually.” This society not being incorporated, at the time of the testator’s death, it was holden to be a charitable bequest where no legal interest was vested, “for the education of youths of the Baptist denomination who shall appear promising for the ministry, always giving a preference to descendants of my father’s family.” It was too vague to be claimed by those for whom
Secondly, as the executors have died, never having exercised the power, nor executed the trust, it is said, a court of chancery cannot exercise it. The rule on this subject is well laid down in Com. Dig. tit. Chancery. 4 W. 11. where the trustee had power at his discretion, and no rule to guide him, and does not or will not act, a court of equity will not interfere ; but it is otherwise where a rule is given. Where a trustee is directed to give the estate devised to such of the testator’s children as he thinks most deserving, and he gives it all to one, no relief can be granted to the others. It was entirely discretionary. Here a rule, and one sufficiently certain, is prescribed. Many cases proceed on that ground.
I would, then, advise, that the bill be granted, and that the facts be ascertained, by a committee or otherwise, who among the brothers and sisters and their children were the most needy, and decree the estate to them.
Decree for plaintiffs.