92 N.J. Eq. 397 | N.J. Super. Ct. App. Div. | 1921
The executrix of Dr. Helmer filed her petition in the orphans court of the county of Essex under the one hundred and ninety-second section of the Orphans Court- act, which, after reciting the ninth paragraph of Mr. Jenkins’ will (which is set forth in the opinion of Judge Martin), and alleging performance of the condition precedent, pra-ye.d that his executors be- directed to pay the legacy to petitioner.
But one question was presented to the orphans court, viz.: Had Dr. Helmer,, when the will of Mr. Jenkins- took effect, performed the condition precedent to the vesting of the legacy? The court, finding that the establishing of the “New York Osteopathic Clinic” satisfied the condition, decreed that respondents pay to the petitioner the legacy.
Passing the question of jurisdiction for the present, and dealing with the case as presented in the orphans court, it appears that the sole question was, What did testator mean, when he used the words “his clinic ?”
If Dr. Helmer had established the New York Osteopathic Clinic, and was the owner thereof at the time of testator’s death, it is quite clear the legacy would be payable.
This, however, was not the fact. What he did was to join with other doctors in procuring the incorporation of a company to conduct a clinic, in which, by common consent, no doctor would be in control of its business management.
To this end, the doctors, who were the leading spirits in the project, each selected a certain number of men in other pursuits to become incorporators and directors. There is nothing in the case which indicates that any one doctor possessed greater rights than another—in fact, the evidence is to the contrary— and there is nothing in the evidence to indicate that the directors were without power to dispense with the services of Dr. Helmer as well as of the other attendant doctors.
The pertinent facts are as follows: In the year 1900 there was an Osteopathic Society in New York City (hereinafter referred to as “the Society”). About 1912, this Society appointed a committee, of which Dr. Fleck was chairman, to form a corporation, which was accomplished March 15th, 1914. Dr. Helmer did not initiate the movement, but, being leader in his profession, Dr. Fleck sought his aid, which he actively gave. It was considered by the promoters unwise to have doctors as incorporators or directors lest it might cause jealousy and strife, which would be detrimental to the enterprise; because, as Mr. Jones, the president, said :
“No doctor likes to have another doctor be the whole thing; they might say this was Fleck’s clinic, or this was Reilley’s clinic, if they were prominent particularly in it, and to avoid that the board of directors have appointed the rules committee
Dr. Helmer and four others were appointed on the rules committee, which worked under the board of directors; and about eighty other doctors contributed their services. Dr. Fleck also states that after the incorporation he, as chairman of the committee of the society, made reports to it.
In order, to form this clinic it was necessary to obtain the permit of the state board of charities, and the doctors who were on this committee deemed it necessary to raise funds to satisfy the state board, and there was raised $4,800. Dr. Helmer, and the other four on the committee, each contributed $100 and promised to raise a thousand dollars apiece from their patients and friends. Dr. Helmer was one of the five. The approval of the state board of charities was endorsed on the certificate of incorporation. There were nine incorporators who became directors. No doctor was cither an incorporator or a director, thus carrying out the original plan of the promoters.
The clinic began to function about April, 1914; rented quarters and employed help. Its income from the treatment of patients (some of whom only could pay), at seventy-five cents a treatment, brought in so little that in about May, 1915 (about the time the testator’s will was made), it was in financial straits, and an effort was made to raise funds. It does not appear that the testator was either approached on the subject or that he contributed anything—in fact, it docs not appear that he even knew of its existence.
Therefore, in order to sustain the decree, the words “his clinic” must be construed not in the possessory, but in the sense that one speaks of “his city,” “his country,” “his church,” “his school,” and the like. The question, therefore, arises, In what sense did the testator use the words “his clinic ?”
Examining the entire will to ascertain his intent, and taking the situation and surroundings of the testator at the time the will was executed, it appears that in the eighth clause he gave to seven charitable institutions, by name, $15,000, two of the bequests being for $25,000 each, and five for $5,000 each, with the
“the principal thereof to be retained intact and to be known as ‘Alfred B. Jenkins Endowment’ or ‘Memorial,’ as the case may be, the income only to be used for the benefit of the institutions respectively.”
Then follows the names of the institutions -with the amounts bequeathed to each. In the tenth, or residuary clause, in the event of his daughter dying without leaving lawful issue her surviving, either before or after his decease, he bequeathes the residue as follows: He gives to four of the legatees mentioned in-the eighth clause additional legacies aggregating $60,000, and thereafter what remains he gives to twelve institutions of learning,
“the principal to be held as a part of the endowment fund known as the ‘Alfred B. Jenkins Endowment’ of said institutions respectively, the income only to be used by the institutions.”
These clauses indicate the bent of the testator’s mind, namely, that where he gave to corporate charity he provided that the principal of the fund should be held intact and the income only used for maintenance. No such provision was made in the ninth clause. The question, therefore, arises, if he intended that the legacy should go to such institution as Dr. Helmer might be connected with, why did he not malm the same provision for the use of the income only as he made in other cases? What motive could there be to give to this charity $25,000 outright, and give to the others only the income ?
In determining this question, regard must be had to the object of his bounty and the purpose sought to be accomplished.
Dr. Helmer was the leader in his profession. He was not only the family doctor of the testator, but they and their families were socially intimate. Dr. Helmer was a magnetic man, and died at the age of fifty years. Several years before this will was made, Dr. Helmer had under consideration the establishing of his own personal clinic, which idea he later abandoned. The case does not disclose whether the testator knew of the doctor’s ambition, nor of the existence of tire New York Osteopathic Clinic; but
It is quite probable that, in their professional or social relations, Dr. Helmer discussed with the testator his thought of establishing his own personal clinic; and, being desirous of aiding his friend and doctor, the testator made the bequest with the condition annexed, without any such provision that the income only should be used, as in cases where legacies were made payable to corporations. This latter theory is more or less speculative, but is merely referred to in view of the fact that the petitioner asks the court to ascribe a different meaning to the words “his clinic” than their grammatical import.
“It is a fundamental rule that courts both of law and equity will construe words according to their strict and primary acceptation, unless, from their immediate context, or from the intention of the parties apparent on the face of the instrument, the words appear to have been used in a different sense; or, unless, in their strict sense, they are incapable of being carried into effect.” Hollinshead v. Wood, 84 N. J. Eq. 492.
In Marshall's Executors v. Hadley, 50 N. J. Eq. 547, 551, Vice-Chancellor Van Fleet said: “The whole will must be read and all its provisions must be carefully considered, and then such construction must be adopted as will give effect, if possible, to every word in it. If by the use of plain and unambiguous words he has made his meaning clear and certain, his will expounds itself, and all the court can do, or has power to do, is to give effect to his purpose. All doubts must be resolved in favor of the testator's having said exactly what he meant, and plain, clear words, understood in their ordinary sense, must always control, unless repugnant to other words used in another part of the will.” See also Burnet v. Burnet, 30 N. J. Eq. 595.
An analysis of the ninth clause indicates that the gift was personal to Dr. Helmer, not only to aid him in his enterprise, but
“If, however, I have made my contribution to him, or if by the time of the taking effect of this my will he had failed to establish the clinic, I direct that this legacy shall lapse, fall into and become part of my residuary estate.”
It may reasonably be assumed that, with the great faith the testator had in the integrity of Dr. Helmer, if he had made his contribution to him in his lifetime he would hardly have annexed conditions to its use which might display a lack of confidence in the doctor. Nor was it his purpose, if he had not made his contribution, and the doctor had performed the condition precedent, that he would provide in his will safeguards as to its use. 'Therefore, in this particular bequest, the testator simply gave to Dr. Helmer the legacy upon one condition only—that he should establish his clinic—without annexing conditions of divestiture, after vesting; relying solely upon the honor of his friend to use it for the maintenance or otherwise of the clinic after it had been established.
Considering that a clinic, according to osteopathists, is a charity, and that Dr. Helmer would be compelled to give his time and money to its establishment, I am not prepared to say that, after the legacy vested, he could not use the legac3r for his reimbursement, discontinue the clinic (because there is no limitation as to its continuance), or, in the event of his death, his executrix could not discontinue it (because the personality of Dr. Helmer could no longer dominate it) and hold the legacy as assets of the doctor’s estate. -All this is unnecessary to decide; but it shows how unwise it is to- depart from the plain meaning of words when the field opened by so doing is uncertain and may lead to the court making the will of the testator.
My conclusion is that the establishment of the New York Osteopathic Clinic did not satisfy the condition precedent to the vesting of the legacy.
In Deeks v. Strutt, 5 T. R. 690, it was held that an action to recover a legacy could not be maintained in the courts of law.
In 1774 an act was passed giving jurisdiction to courts of law to entertain suits for legacies.
But that suits for legacies might be maintained in the courts of law, by statute, does not alter their essential character; they do not change their nature to suit the law of the court, but the court changes its law and accommodates itself to its peculiar character. When suits for legacies were first prosecuted in courts of chancery they were obliged to adopt the law of the spiritual forums, and so it has been with the courts of common law. King v. Executors of Berry, 3 N. J. Eq. 44 (53); citing Ridg. P. C. 243. And a provision to the like effect was inserted in the Orphans Court act.
In Hedges v. Norris, 32 N. J. Eq. 192, Chancellor Runyon, in an elaborate opinion, gives the history of the law in suits for legacies, citing Deeks v. Strutt, supra.
In 1855, after our constitution went into effect (P. L. 1855 p. 342), jurisdiction was given to the orphans court over suits for the recovery of legacies and distributive shares. This act, as amended, will be found in 3 Comp. Stat. p. 3883 § 192; and, as amended, contains the following: “* * * and the proceedings in such suits thereafter shall in all respects be governed by the rules and practice of the court of chancery so far as the same are applicable.” Therefore, it will be perceived that, both at law and in the orphans court, the suit for a legacy wfas regarded as equitable in its character.
Thus, at the outset, two constitutional questions are presented —first, whether the legislature had authority to give jurisdiction to the orphans court to entertain suits for legacies, and second, if, possessing such jurisdiction, it has authority to construe a will where the construction of the will is the primary question to be determined in order to make a decree.
In Davison v. Rake, 45 N. J. Eq. 767, it appeared that eight legatees instituted suit in the orphans court for the recovery of their legacies. From the decree of the orphans court an appeal
In view of these decisions, I will assume that the orphans court has jurisdiction to entertain a suit for a legacy.
The reason for dealing with this point is for the purpose of considering cases which have arisen under the distribution, acts in cases of testacy and intestacy. The distinction between such suits and a suit for a legacy is apparent. The decree for distribution in the orphans court is a mere continuation of a proceeding commenced before the surrogate and concluded in the orphans court; whereas, a suit for a legacy or distributive share is an original suit, independent of such proceedings. Yet, if that court has jurisdiction over suits for legacies or distributive shares, the right to construe the will in such cases may be determined by analogy to the numerous cases which have arisen' under the statutes of distribution.
In Hill v. Bloom, 41 N. J. Eq. 276, 280, it was objected that the orphans court had no jurisdiction to make a decree of distribution, because, in order to do so, it was necessary to construe the will, and that the court had no such authority, Chancellor Runyon, sitting as ordinary, on an appeal from the Sussex orphans court, said (at p. 280): “The power1 to construe the will, so far as necessary to determine to whom the distribution or payment is to be made, is obviously a necessary incident of the power given by that section.” Orphans Court act, § 151, Rev. of 1877 p. 785; 3 Comp. Stat. p. 3877 § 173.
In Adams v. Adams, 46 N. J. Eq. 298 (302), where the distribution of property under a will was considered, counsel for the respondent contended that the orphans court had no jurisdiction to construe the will, and any grant of such power would be unconstitutional as taking from the court of chancery a part of its jurisdiction. Mr. Justice Magie, speaking for the court of
In Macy v. Mercantile Trust Co., 68 N. J. Eq. 235, Vice-Chancellor Emery said (at p. 243) : “The power of the orphans court to construe wills for the purpose of distribution was affirmed by Chancellor Runyon in Hill v. Bloom (1886), 41 N. J. Eq. 276, but no question as to the constitutionality of the statute appeared to have been raised, and subsequent decisions hold this question to be still an open one. Adams v. Adams, supra; Stevens v. Dewey, 55 N. J. Eq. 232.”
See also Pulley’s Case, 70 N. J. Eq. 659; Eberhardt v. Perolin, 48 N. J. Eq. 592; 49 N. J. Eq. 570; Swain v. Smith, 61 N. J. Eq. 590; In re McGaw's Case, 88 N. J. Eq. 288. And the last deliverance on the subject is by Chancellor Walker, sitting as ordinary in In re Mcrrisse’s Estate, 91 N. J. Eq. 477; 110 Atl. Rep. 118, in all of which cases the court did not pass on the constitutionality of the statute because it was, either unnecessary to the decision of the cause or the will did not need construction.
The foregoing cases clearly indicate the doubts entertained by the judges of the court of errors and appeals and the court of chancery on this question of jurisdiction. But, as the court of errors and appeals, in the case of Davison v. Rake, supra, dealt with a suit for a legacy in the orphans court and did not declare that the statute conferred no power on the orphans court to -entertain jurisdiction, and, as Chancellor Runyon, in Hill v. Bloom, supra, where the point was made that the orphans court was without authority to construe the will, decided against this contention, as above stated, I think the weight of authority at the present time is in favor of the jurisdiction.
A decree will be advised reversing the decree of the orphans court.
