94 Va. 557 | Va. | 1897
delivered the opinion of the court.
This controversy arises under the residuary clause of the last will and testament of Lenore M. Van Wyck, late of the city of Norfolk. After making a number of specific bequests the testatrix declares that “all the rest and residue of my said estate, real and personal, wherever situate, and of whatever kind, I give, devise, and bequeath to the Reverend S. S. Seward, of New York city, and to the Rev. J. C. Ager, of Brooklyn, State of New York, or the survivor of them, or to whomsoever they may select, in case of their death, in trust for the benefit of the New Jerusalem Church (Swedenborgian) as they shall deem best. * * * ’1
The executor filed his bill to have certain clauses in the will
From that decree this appeal was taken by some of the heirs of the testatrix, who were also legatees under the will.
Their right to appeal is denied on several grounds which will now be considered.
The first is that the appellants would have no interest in the property disposed of by the residuary clause of the will, even if it were held to be invalid, but that it would pass as personal estate to the husband of the testatrix.
By the fifteenth clause of the will the executors were au- ■ thorized to sell the real estate of the testatrix, or any part thereof, wherever situated, and to execute deeds therefor, and do all things, by converting the estate into money or otherwise, w hich might be necessary to carry into effect the provisions of the will.
It is apparent that the purpose for which the executors were authorized to sell the real estate or any part thereof was to carry into effect the provisions of the will, and that the testatrix directed its conversion into money in order that it might be applied conveniently in the manner directed by the will and for no other purpose. “For,” as is said by Mr. Jar-man, “every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of the purposes, to prevail as between the persons on whom the law^casts the real and personal estate;
Although the appellants accepted payment of the bequests made to them in the will, with full knowledge of all the facts, they are not estopped, as the appellees insist, from attacking the validity of the residuary clause, on the ground that having elected to take under the will they are bound to give full effect to all its provisions, and to renounce every right inconsistent with it. The provisions of the will were not such as to require an election on the part of the appellants.
The testatrix did not attempt to dispose of any property right of the appellants. There was nothing, therefore, for them to elect to give up in lieu of what she bequeathed them. 1 Pom. Eq. Jur., sec. 472; 2 Williams on Executors, (7th Amer. ed.), top page 767; 1 Jarman on Wills (5th Amer. ed., Bigelow), 443, 451; 2 Redfield on Wills (3d ed.), side page 352.
The authorities cited to show that this was a case for elec
This brings us to the consideration of the next and last ground of objection to the right of appellants to maintain this appeal.
By a codicil to the will it is provided that any legatee who attempts to set aside the will, or any part thereof, or to cause litigation over it, shall forfeit his legacy, and that it shall revert to the estate. The appellants accepted payment of their legacies. By this act they are estopped, appellees insist, from questioning the validity of the will, or any part of it.
Conditions relating to marriage and disputing a will, when annexed to bequests of personal estate, where there is no gift over upon breach of such condition, are generally considered as in terrorem merely, and inoperative. This in terrorem doctrine, which is only admitted in these two classes of cases (2 Jarman on Wills, 60), although not based upon any satisfactory reason, was firmly fixed in the law of England at an early day. 2 Jarman on Wills, 45, 58, &c.; 2 Williams on Executors, p. 585-6; 2 Pom. Eq. Jur., sec. 933; 1 Lomax Digest (2d ed.) 341; 2 Minor’s Inst. (4th ed.) 286-7; Scott v. Tyler, 2 Leading Cases in Equity, 429, &c., and notes. In this State, in the case of Maddox v. Maddox, 11 Gratt. 804, where the condition related to marriage, the doctrine was applied without being questioned by the court. See also the case of Phillips v. Ferguson, 85 Va. 509, 513. It must, therefore, be regarded as settled that such conditions are
I was inclined to the opinion at first that the direction in the will that the legacies should revert to the estate of the testatrix upon breach of the condition was such a giving over when considered in connection with the residuary clause, as would render the condition operative, but a more careful examination of the authorities satisfies me that sucb is not the case. Maddox v. Maddox, 11 Gratt. 804, 810, and cases cited; 1 Roper on Legacies, marg. page, 796; 2 Lomax on Executors, top page 155.
Rone of the objections made to the right of the appellants to take this appeal can be sustained.
The question whether the residuary clause of the will is valid or not will now be considered.
Its validity is attacked upon the ground that the trust ere. ated by it is so vague and indefinite that it cannot be enforced by a court of equity. This is denied by the appellees, who insist (and the trial oourt so held) that the bequest was intended for “The General Convention of the New Jerusalem in the United States of America,” a corporation chartered under the laws of the State of Illinois, and for purposes within its corporate powers. Parol evidence was taken to show that the corporation named was the intended beneficiary. That evidence is objected to because it is claimed that there was no such ambiguity in the will as rendered parol evidence admissible to show the intention of the testator. That objection was not made to the court below, and it is insisted that it is too late to make it here for the first time.
In the view we take of the case it is unnecessary to pass upon either of those questions.
Prior to 1861 a large portion of that body of Christians known as the New Jerusalem Church was accustomed to meet annually in convention. Those conventions were not incor
The parol evidence, it is true, shows that testatrix on several occasions attended the annual meetings of the general convention, &c., which was the representative body of the New Jerusalem Church, and that the trustees named were members of the “executive committee” or “general council” of the general convention, as well as ministers in the New Jerusalem Church, but there is no evidence that the testatrix knew that the general convention, &c., was an incorporated body with power to take and hold property for the church, or that she knew that the trustees were members of the “executive committee” or “general council” of the corporation. On the contrary, it appears that she had a personal acquaintance with each of the trustees; one of them, the Rev. Mr. Ager, was for some time treasurer of the New York association of the New Jerusalem Church, and for a number of years she
The omission to name the corporation claiming the fund, or to devote the bequest specially to the purposes (viz., edu cational and religious) for which it was authorized to take and hold property, and leaving the administration of it entirely to the discretion of the trustees named would seem to show clearly that the testatrix either did not know that “The General Convention of the New Jerusalem, &c.,” was the agency or representative of the church to take and hold property for it, or if she did know it, that she did not desire to leave her gift to that corporation to be administered by it, but preferred an agency of her own selection. The terms of the bequest itself show that it was her intention that the fund given should be managed by the trustees named, “or the survivors of them and whosoever they shall select in case of tüeir death.” Her confidence in the integrity and wisdom of the trustees selected (through whom she had theretofore made donations for the benefit of the church) was such that she directed that no bond should be required of them, and gave them absolute discretion to administer the fund as they deemed best for the benefit of the church of which she was a member.
In the case of Wheeler v. Smith, 9 How. 55, where the bequest was made to the trustees for such purposes as they considered might prove to be most beneficial to the town and trade of Alexandria,' it was argued, as here, that the testator intended to give the town of Alexandria, in its corporate capacity, the residue of his estate; but the court in passing upon that question, Mr. Justice McLean delivering the opinion, said the testátor did not so express himself. “On the con
There is nothing in the will nor in the extrinsic evidence which shows that the corporation claiming the bequest was intended to be either the beneficiary, or the agency by which it was to be administered. The bequest must, therefore, be considered as made for the benefit of a voluntary association, and not to or fcr the benefit of a corporation.
Is the trust so vague and indefinite that it cannot be enforced by a court of equity? If so, it must be held invalid. Trustees are named, but the beneficiaries are uncertain. Is the trust for the benefit of all the members of that church, wheresoever they my be, in this and other countries, or is it limited to those in the United States, or to such as live in this State where the testatrix had her domicile, or to those in the State of Yew York where the trustees reside? The purposes of the trust are wholly undefined, and the discretion vested in the trustees unlimited, except that the fund must be used for the benefit of the Yew Jerusalem Church. If the trustees are unable, or for any reason fail to act, it is difficult to see how a court of equity could enforce it. It could not well control their discretion, or exercise the power conferred in their place or stead.
The bequest in this case is as indefinite as that in the case of Wheeler v. Smith, cited above, and in reference to which Justice McLean said: “Under this devise how can a court of chancery correct an abuse of the trust? By what means shall it ascertain the misapplication of the fund? There is nothing to restrain the discretion of the trustees, or to guide the judgment of the court. If the trust can be administered it must be administered at the will of the trustees, free from all legal obligation.” Again he says: “How can a court of chancery administer the trust? On what ground can it remove the trustees for an abuse of it? The discretion of the
The decisions in the cases ot' the Episcopal Education Society v. Churchman, 80 Va. 718, and of Trustees, &c. v. Guthrie, 86 Va. 125, are relied on to sustain the validity of this bequest. There was no such question involved in either of those oases as is involved in this.
In the Churchman Case the question for decision was whether a bequest to “The Trustees of the Protestant Episcopal Educational Society of Virginia,” which was to be used exclusively for educating poor young men for the Episcopal ministry upon the basis of evangelical principles as now established, was valid.
In the Guthrie Case the question was whether a bequest to the secretary of the board of foreign missions of the Presbyterian church in the United States, was invalid.
The record in each case showed, in the opinion of th'e court, that the bequest was to a corporation, and for purposes within the scope of its corporate powers and duties, and distinctly defined. In those cases the beneficiaries were certain, the purposes of the trust clearly defined, and within the corporate powers of the legatees. In this case, as we have seen, the beneficiaries are uncertain, the purposes of the trust wholly undefined, and the discretion of the trustees practically without limit.
It is not contended that this bequest could be held valid under the decisions of this court prior to the Churchman Case. Those decisions, however, it is claimed, overturned
In the case of Trustees v. Guthrie, the court held that the beneficiary in the bequest the validity of which was attacked was not uncertain ana unknown as claimed, but was a corporation chartered under the laws of the State of North Carolina, and that the purposes of the bequests were within the powers anü duties of the corporation. Having determined that the beneficiary was certain and the purposes of the trust
It is evident that in both these cases so much of the opinions as dicussed the jurisdiction of courts of chancery over charities at common law, how far, if at all, 43d Elizabeth was in force in this State; and the decisions in Gallego v. Attorney General, and the cases which followed it and recognized and reiterated the principles of that case as to indefinite charities, except so far as they had been changed by the Legislature, were wholly unnecessary to the decision of those cases, and therefore must be regarded as mere obiter, and not binding as pre cedents upon this court. Their dicta announce views contrary to a long line of decisions of very able judges, and although their decisions may have been based upon erroneous views as to the powers of courts of chancery over charities at common law, and as to the extent to which the statute of 43d Elizabeth had been or was in force in this State, still those decisions have settled the law upon the subject, except as changed by the Legislature from time to time.
We are unwilling to .hold that this line of decisions, running back over a period of more than fifty years, was overturned by expressions of opinion in the Churchman and Guthrie Cases, not necesary to their decision. If further changes are necessary or desirable, upon the subject, the Legislature, the law-making power, and not the courts, should make them.
We regret that we have been compelled to hold this bequest invalid, for it is always painful to see the cherished and praiseworthy wishes of a testator disappointed.
Reversed.