83 F. 244 | U.S. Circuit Court for the District of Connecticut | 1897
Demurrer to bill in equity. The three orators herein, describing themselves as British.subjects, residing, respectively, in tbe state of Michigan, city of Dublin, Ireland, and the city of Montreal, Canada, bring this bill in behalf of themselves and all other heirs at law and next of kin of one John H. Duggan, deceased, who may unite in the prosecution thereof, and aver that they are respectively the brothers and sister and next of kin of said Duggan, late of the town of Waterbury, in the state of Connecticut, who had never married, and who died in said town on the 10th day of November, 1895, leaving the orators and other heirs at law and next of kin, not known to them, surviving; that said John H. Duggan was a priest of the Boman Catholic Church; that on August 5, 1895, the decedent executed a will, which was admitted to probate on December 2,1895; that, the executors and trustees therein named having refused to qualify, one William J. Slocum, of said Waterbury, was duly appointed and duly qualified as administrator with the will annexed, “and is now acting, and has possession and
The provisions of said fourth paragraph are as follows:
“Fourth. All the rest and residue of my estate, both real and personal, and wheresoever situated, T give, devise, and bequeath to my executors hereinafter named, in trust, however, for the following purposes, viz.: One-lialf to be used for the purpose of establishing and maintaining a library and reading room in connection with St. Patrick’s parish in said Waterbary, or in whatever part of said Waterbury may be deemed by my said executors most suitable and convenient for the general public, and o-ne-half for the purpose of establishing or maintaining a Homan Catholic protectory for boys in said diocese of Hartford: if being my will that the personal estate and rents accruing from any real estate of which I may die possessed be invested-in safe securities for a term of ten years or more, at the discretion of my said executors. I also will that the management and disposal of my real estate he at the discretion of my said executors.”
The defendant, said administrator with the will annexed, demurs to the complaint on several grounds. Inasmuch as the demurrer must: be sustained if the provisions of said fourth paragraph of the will are valid, this point only will be considered. Complainant Insists that said provisions are void upon three grounds: First, for uncertainty as to the object; second, for the want of a provision for the selection of the objects of the bounty; third, as contravening the rule against perpetui ties.
It is clear Him t bequests for a public library and for a protectory for boys are charitable bequests, and entitled to the benefit of section 2951 of the General Statutes of Connecticut, usually referred to as the-statute of 1702. It was enacted in 1681, and has been statute law of Connecticut ever since. Said section is as follows:
“All pr tai os that have boon or shall be granted for the maintenance of the minis! r.v of the gospel, or of schools of learning, or for the relief of the poor, or for the preserva!ion. (‘are and maintenance of any cemetery, cemetery loi. or of the monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall he granted, according' to the true intent and moaning of the grantor, and to no other use whatever.”
This shítate pledges the good faith and honor of the state that all public, and charitable bequests shall, if possible, be appropriated to the use intended by the donor. It is unnecessary to consider the
I do not think there is any such uncertainty as to the intent of the donor as should invalidate the gift. A protectory for boys is an institution for the education and care of destitute or homeless boys, especially those in danger of becoming vicious. The nature of such institutions under the care of the Roman Catholic Church is well known. The property is left to certain persons named,- in trust, to be used for the purpose of establishing and maintaining a library and reading room, and for the purpose of establishing or maintaining a Roman Catholic protectory for-boys. The particular mode of carrying the intent of the donor into effect — the site of the library and reading room, the character of the books and papers, the selection of boys for the protectory, and the regulations for the conduct of both institutions — is wisely left to the discretion of the trustees. It is manifestly the intent of the testator that the trustees shall make such provision for carrying out these purposes and selecting beneficiaries as they may think best. He is presumed to have known that, in case of their death or inability or declination of the trust, the proper authority would fill their places. The rule of law to that effect is substantially a part of the will. It is as though the testator had said: “In case of the death of said trustees or their refusal to act, other trustees shall be appointed by the proper court.” Conklin v. Davis, 68 Conn. 377, 383, 28 Atl. 537; Dailey v. City of New Haven, 60 Conn. 314, 324, 22 Atl. 499 et seq. The general assembly of Connecticut would doubtless give suitable persons corporate powers for effectuating the provisions of this will, if necessary.
In Bronson v. Strouse, 57 Conn. 147, 17 Atl. 699, the will directed the executors to invest $1,000, and to apply the interest, so far as necessary, in keeping a burial lot in order, and added: “And, if any surplus shall remain, I will that said surplus shall be given to some, poor deserving Jewish family residing in the city of New Haven.” Here there seems to be no more certainty as to the object, and certainly no more designation of the persons to make the selection of beneficiaries, than in the case at bar. The court held that the executors had power to select the family, and to determine the amount to be expended for its relief. Bronson v. Strouse is cited with approval in New Haven Young Men’s Inst. v. City of New Haven, 60 Conn. 32, 40, 22 Atl. 447, 449, where the court says concerning it: “Here, too, nothing was said about discretion, nor was it expressly stated who was to select the poor deserving Jewish family, but both were implied from the mere application of the money in the hands of the executors as trustees.” The objections raised in the present case were considered in Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141, in which a fund was left to the selectmen and their successors, in trust, “the interest of which shall be applied by said selectmen to aid indigent young men of said town of Mansfield in fitting themselves for the Evangelical ministry.” The will was sustained. In approving this case, in New Haven Young Men’s Inst. v. City of New Haven, supra, the court says: “Ho discretion here
Complainants further insist that a direction to invest “for a term of ten years or more, at the discretion of my said executors,” contravenes the rule against perpetuities, and renders the bequest void, because under it the executors may continue to accumulate for an