Domestic & Foreign Missionary Society's Appeal

| Pa. | Jul 1, 1858

The opinion of the court was delivered by

Strong, J.

— This appeal raises two principal questions. They are, whether the testator’s will sufficiently defines the objects of his intended bounty, and whether, if it does, the legacy can be decreed to the appellants.

The clause in the codicil to the will, out of which the questions arise, is as follows: “ I give and bequeath to the mission and schools of the Episcopal Church about to be established at or near Port Cresson, the sum of $5000; in the disbursement of which, as well as in the application of the fund bequeathed to the seminary near Alexandria, I desire and direct that the pastor of the church of St. Andrew’s for the time being, shall enjoy a full and equal voice. Should a collegiate department for the benefit of the natives be added to the mission and schools aforesaid, I hereby add a further sum of $5000.”

This codicil was made October Tth 1853. The testator was a resident of Philadelphia, and a worshipper in St. Andrew’s Episcopal Church, of which the Rev. Dr. Stevens was pastor. Port Cresson is a place upon the western coast of Africa, named in honour of the testator ; often called by other names, but known by Mr. Cresson, and spoken of by him, under that name. In the immediate vicinity of this place, the Domestic and Foreign Missionary Society, the appellants, established a mission about the time when the testator made his testamentary disposition. Their purpose to establish the mission there, was known by him at the time, and met his approbation. There was not then, nor is there yet, any other mission or school of the Episcopal Church in that vicinity.

Looking now at the bequest from this stand point, the one which Mr. Cresson occupied when he made his codicil, it cannot be doubted that he intended as the objects of his bounty, the identical “mission and schools” thus established by the appellants, who were then the sole agents of the Episcopal Church in establishing missions. Nor can it be doubted that the words of the codicil express that intention. So the auditor has reported, after having properly called to his aid parol evidence to show the situation in which the testator stood when he made the bequest under consideration. That such evidence is admissible in aid of the interpretation of a will was ruled in Marshall’s Appeal, 2 Barr 388, in Brownfield v. Brownfield, 8 Harris 55, and in Rewalt v. Ulrich, 11 Harris 391.

It may be remarked, that the legacy is a bequest to a religious and charitable use. Such gifts have always been pre-eminently favoured in Pennsylvania. The British statutes of mortmain were never in force here, and though the statute of 43d Elizabeth has not been re-enacted, yet its spirit has been fully recognised in judicial decision. No better illustration is needed of the extent to which the law of Pennsylvania has gone in sustaining chari-table bequests, than is found in the language of this court in Wit-man v. Lex, 17 S. & R. 93, where it was said, “ it is immaterial whether the person to take be in esse or not, or whether the legatee were, at the time of making the bequest, a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator’s bounty to those objects, or whether their corporate designation has been mistaken. If the intention sufficiently appears on the bequest, it would be held valid.” By a rule peculiar to gifts of this nature, the charitable purpose of the donor will be carried into effect, notwithstanding the indefiniteness of its immediate objects: 1 Jarman on Wills 216. The learning upon this subject has been exhausted by the late Judge Baldwin, in his opinion upon Sarah Zane’s will: McGill v. Brown, Brightly’s Rep. 347.

When it is remembered, that this legacy to the “ mission and schools of the Episcopal Church” is a charitable bequest, it certainly cannot be successfully contended that it is void because it does not sufficiently designate the persons for whom the testator intended the beneficial use of the $5000. In such gifts beneficiaries have been held to be sufficiently described in numerous cases still more indefinite. They have been sustained in England in the following cases among others: a gift to the poor in general, 2 Lev. 167, Finch 245; a bequest for the advancement of religion, 1 Mol. 616; a gift to such charitable uses as A. shall appoint, 1 Vesey Jr. 464, 7 Vesey 36; a bequest to a particular charity by a description equally applicable to two, and it is wholly uncertain which was intended, 1 P. Wms. 674, 5 Russ. 112. These, and numerous other cases of a similar character are collected by Mr. Jarman. They are all cases in which, as ordinary testamentary dispositions, the legacies would be held void, but as charities they are valid.

Our American books are equally full of similar adjudications. In 2 Peters 578, land marked in,the plan of a town “for the Lutheran Church,” for religious purposes, was held a good charity, without any other description of donees or uses. In Witman v. Lex, 17 S. & R. 88, a legacy was given to “ the poor of the Lutheran congregation.” It was held good. In the same case, a legacy, the interest of which was to be applied from time to time to the education of young men in the ministry of a congregation, under the direction of the vestry, was sustained. So, a bequest “ for the relief of the indigent, blind, and lame, giving a preference to those resident in Philadelphia and its neighbourhood,” 3 Rawle 170, was held valid. So also, in Pickering v. Shotwell, 10 Barr 23, a devise to an unincorporated religious society, “ to be applied as a fund for the distribution of good books among poor people in the back parts of Pennsylvania, or to the support of an institution or free school, in or near Philadelphia,” was maintained as a good, charitable gift: 9 Cranch 296; 3 Peters 99; McGill v. Brown, ut supra.

A gift to a particular “mission and schools” is equally definite, so far as relates to the beneficiaries. The word “ mission” is well understood in common language. For more than forty years, the different American churches have been engaged in establishing and maintaining missions in various parts of the heathen world. Hardly a religious denomination exists which is not employed in one or more of such benevolent enterprises. The purpose is to civilize, christianize, and educate the natives of those countries where the missions are established. This is accomplished by preaching, by oral instruction, and -by schools. In the work, persons sent out by the churches in this country, as well as native assistants, are employed, and they are supported and controlled by the churches at home. The whole machinery of the work at the selected spot in a foreign land is called a mission. It is, in fine, a Christian school. Surely, if a bequest to a school, a church, or to the poor of a parish, is sufficiently definite, a legacy to a mission is equally so. In neither case can it be said, that a particular person, apart from all others, was intended by the testator to be a beneficiary. A court can know the class, but individual designation is left to the trustee, who is the dispenser of the bounty, and who is under obligation to dispense within the class. The general rule may be stated thus: — In the case of a will making a charitable bequest, it is immaterial how vague, indefinite, and uncertain the objects of the testator’s bounty may be, provided there is a discretionary power vested in some one over its application to those objects: Witman v. Lex, 17 S. & R. 91; Beaver v. Filson, 8 Barr 327; Pickering v. Shotwell, 10 Barr 23; Martin v. McCord, 5 Watts 493.

Nor, if there be such discretionary power anywhere, will the legacy fail for want of a trustee capable of taking it. But by the express directions of this will, a discretionary power over the disbursement of the legacy is given to the pastor of the church of St. Andrew’s for the time being. That pastor was the Rev. Dr. Stevens. To him is given a full and equal voice in its disposition. The bequest, therefore, must be held to be valid. It may, in this connexion, be remarked, that the expression “ full and equal voice” implies the existence of an intention in the testator that some other person than the pastor of St. Andrew’s should direct in the disbursement.

We proceed now to inquire whether the appellants are entitled to receive the legacy. They are capable of taking, and they are the hand of the Episcopal Church to establish, control, and sustain all its missions. The mission at or near Port Oresson is their creature, wholly dependent upon them for sustenance as well as existence. Separated from them, it has no being as a mission. They disburse whatever is appropriated to the mission and schools. A legacy to the “ mission and schools” is a gift in their ease. It must be presumed to have been intended as such by the testator ; as a bequest in relief of the general funds of the society. Whatever the “mission and schools” may receive from the testator’s estate, diminishes the necessity of disbursements from the general treasury of the society. In McGirr v. Aaron, 1 Penn. R. 49, there was a devise to a Roman Catholic priest to be entailed to him and his successors, to be transmitted to his successors for ever, in trust to say masses. This court held, that though the devise was literally to the priest and his successors, and as such would have been void as tending to create a perpetuity, yet that its actual intent was to be for the maintenance of a priest, in ease of the congregation, and consequently for its benefit alone. The congregation was therefore held entitled to take the profits in the first instance, but subject to a right in the priest to have them applied to his support. And this, though the congregation was not named in the will. Similar adjudications have often been made, when the object literally designated has been incapable of taking directly, and the legacy has been in relief of a superior: 2 Plowd. 523; Perk. 509; 1 Atk. 436. A bequest to a school has been held to be a gift to a schoolmaster; one to a church, a gift to the parson and his successors; one to parishioners, a gift to churchwardens: 11 Hen. IV. 84 b; 37 Hen. VI. 30; 9 Cranch 292. So in the case of The Mayor of Reading v. Lane, Toth. 7 (cited by Judge Gibson, 17 S. & R. 91), where a devise was made to the poor people in the hospital of St. Leonard’s, it was decreed, that as the plaintiffs governed the hospital, the land should be assured to them for the use declared in the will.

The law regards the substance of the gift, and in favour of charity vests it in the party capable of taking it, in whose ease it was given, 9 Cranch 329; the object being to effectuate the intent of the testator, rather than let it fail. It is true, the doctrine of cy pres is not fully adopted in this state. It is not necessary to resort to it. The cases above cited were not decided upon that principle. They rest upon the basis of a fulfilment of the direct purpose of the donor. They are not judicial appointments of trustees to prevent the failure of a trust.

The views we have expressed lead directly to the conclusion that the appellants, being “ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States of America,” are legitimate claimants under the will of Mr. Cresson to the legacy of five thousand dollars. The additional bequest of a similar amount was given upon a condition which has not been complied with, although a reasonable time has elapsed since the establishment of the mission. That, therefore, will fall into the residue of the estate.

It follows also, that the auditor was not called upon to constitute a. trustee, or declare a trust. That had already been sufficiently done in the will. He made a distribution of the whole estate, and the Orphans’ Court confirmed that distribution.

We merely add, that the parol evidence submitted to the audi-. tor appears to us to have been properly received. Its purpose was to show that there was in being such an object as the testator designated in his will.

The decree of the Orphans’ Court of Philadelphia, confirming the report of the auditor, is reversed, and it is ordered, adjudged, and decreed, that the distribution made by the auditor be corrected, by allowing to The Domestic and Poreign Missionary Society of the Protestant Episcopal church of the United States of America, the legacy of five thousand dollars, in trust for the mission and schools of the Episcopal Church, at or near Port Cresson, in the disbursement' of which the Rev. W. B. Stevens shall have a full and equal voice. And it is further ordered, that subject to the foregoing correction, the report of the auditor be confirmed. And that the appellees pay the costs of this appeal.