203 N.W. 778 | Minn. | 1925
Lead Opinion
Nils Henrikson was domiciled in Duluth, Minnesota, when he made his will and also at the time of his death. His heirs are three brothers and a sister, all living in Sweden. His estate consisted of bank certificates and deposits in banks, amounting to something over $11,000, nearly $9,000 of which is on deposit in three banks in Sweden. After some small bequests to his relatives, the eighth bequest reads:
"All the rest and residue of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed of to *178 which I may be entitled at the time of my decease, I give, devise, and bequeath to the SWEDISH BAPTIST GENERAL CONFERENCE IN SWEDEN, otherwise known as SVENSKA BAPTISTERNAS ALLMANNA KONFERENS i SVERIGE, to be used in the following manner, to-wit: That the said Swedish Baptist General Conference in Sweden shall reduce all my estate to the form of money as conveniently and as economically as it can be done, and keep the funds and money so derived deposited in not less than three banks of sound financial standing in Sweden, or invested in first class and thoroughly approved securities; the interest and income from the said investments shall be applied annually to the payment of the salary and expenses of a properly licensed and competent Baptist Minister or Preacher, who shall continually reside in and do Christian and Missionary work among the people and residents of Lillskogshojden in Ostmarks Socken, Wermlands Lan, Swenden, and nearby localities in Sweden, as the said Swedish Baptist General Conference in Sweden shall direct, it being understood that the said Minister or Preacher shall reside continually in said Lillskoghojden in Ostmarks Socken, Wermlands Lan, Sweden, and nowhere else. The principal so invested or deposited shall never be used to pay the said salary or expenses of the said Minister or Preacher, but only the interest and income derived from the said principal shall be so used. Provided that if the said interest and income and subscriptions from the members of the church in such locality shall not be sufficient to pay the salary and expenses of such Minister or Preacher, the said Swedish Baptist General Conference in Sweden shall pay the balance thereof from year to year. If the interest and income from the said principal shall exceed the amount necessary to be expended for the salary and expenses of the said Minister or Preacher, then the said Swedish Baptist General Conference in Sweden may devote the balance thereof to whatever purpose it may see fit."
It is conceded the residuary legatee named lacks capacity to receive the bequest, but the contention is that the organization whose name was by the district court substituted is capable and was the one intended by the testator. The important questions presented by *179 the appeal are: The admissibility of evidence to identify the legatee, of evidence that under the law of Sweden such legatee is authorized to receive the bequest, and finally the validity of the same.
The general rule is that parol evidence is not admissible to add to, vary or contradict the words of a written will, for the will itself is the best evidence of the testator's intention, and it is required to be in writing. But when either latent or patent ambiguity arises as to the legatee, evidence dehors the instrument is proper, as where there are two or more persons bearing the same name as the legatee specified, or where there is a misnomer, so that there is no one to claim under the precise name designated in the will. Where there is a will, the law favors a disposition of the entire estate thereunder, rather than that a part shall go as intestate. In the instant case, there is an entity answering to the exact name of the residuary legatee in the will, but incapable of taking and using the bequest for the purpose directed by the testator. When that is made to appear, is thereby an ambiguity created which authorizes the court, in order to avoid intestacy, to admit parol evidence to identify the legatee? "Latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence," Patch v. White,
The evidence received disclosed this situation: For years the Baptist congregations in Sweden have held an annual conference in Stockholm, to which each congregation sends delegates. This annual meeting bears the exact name of the legatee in the will. It is not a legal entity, although, by vote or resolution passed at such meetings, it seems to direct the activities of the Swedish Baptist Mission Society, which is a religious organization duly recognized *180 by the law of Sweden as a legal body with full power to receive by gift or otherwise personal property. The latter is a coalition of the regular Baptist congregations in Sweden into a legal body and is charged with the power to supervise and conduct missionary activities of such congregations or churches in that country and to hire missionaries, ministers and preachers. The Swedish Baptist General Conference is not a corporation or an association recognized in law as of legal responsibility. It has no power to take or hold property in its own name, and cannot employ ministers, preachers or missionaries. While there is a close and intimate connection between the conference and the society, the latter alone functions as a legal entity or responsible body in respect to all matters pertaining to the active conduct of the common work of the Baptist congregations in the Kingdom of Sweden. In one sense the conference and the Society may be said to be the same thing, or represent the same constituency, but when it comes to business or financial transactions, or legal capacity to carry out and further the common purpose of the Baptist churches of Sweden the society is the only body having existence and power.
We are of the opinion that the situation disclosed presented an uncertainty as to the identity of the legatee which permitted the admission of parol testimony. The principle stated in Patch v. White, supra, quoted with approval in Wheaton v. Pope,
The trend of the following authorities supports the admissibility of extrinsic evidence to identify the legatee: Gilmer v. Stone,
We come to the question of the errors assigned upon the reception of the evidence to identify the legatee, or prove the misnomer. It is claimed the declared intention of the testator is not to be received to vary the name so clearly written in the will. Dunham v. Averill,
Another important series of objections to testimony received relate to the proof that the Swedish Baptist Mission Society was a legal entity under the law of Sweden and capable of receiving bequests, and that the Swedish Baptist General Conference was not an organization of any legal standing and incapable of taking or carrying out the purpose of the bequest; and that the latter as far as active missionary work was concerned of necessity was confined to what was done through and by the former.
Section 8413, G.S. 1913, reads: "The existence and the tenor or effect of all foreign laws may be proved as facts by parol evidence; but if it appears that the law in question is contained in a written statute or code, the court may, in its discretion, reject any evidence of such law which is not accompanied by a copy thereof." The deposition of Dr. Bystrom showed that he had been a member of the Swedish parliament, had been editor of the organ for the Swedish Baptists since 1889, and a member and chairman of the Swedish Baptist Mission Society for ten years, and was thoroughly acquainted with the legal status of the society and its relation to the conference. He testified that an incorporation of the Swedish Baptist Mission Society was not needed under Swedish law, but that it had legal authority to hold property and take the bequest, and carry out the desires of testator. It does not appear that there is any written code in Sweden covering the subject of religious or missionary organizations. Under the statute quoted we do not think it was necessary that the witness should be learned in the law, or a practising attorney, in order to testify as to the law of *183
Sweden. A statute providing that "the unwritten or common law of * * * a foreign country may be proved as a fact by oral evidence" was in State v. Behrman,
This state, having no statute prohibiting bequests of this nature to one domiciled elsewhere, a legatee qualified to take under the law of his country or state will be awarded the bequest by the courts of testator's domicle. Chamberlain v. Chamberlain,
Chamberlain v. Chamberlain was approved in Matter of Huss,
"Our conclusion is that, even if it be assumed that the bequest of the residuary estate to the Scotch trustees in trust for the purpose of founding and maintaining the hospital, should be held void under our law for the reason that the absolute ownership of personal property is unlawfully suspended or that the beneficiaries of the trust are not sufficiently specified or defined, still that does not render the disposition invalid as these objections do not apply to a gift in trust to be administered in Scotland and perfectly valid there. This result, I think, is in harmony with the general tendency of courts to sustain testamentary dispositions of property when it fairly can be done under the rules of law and in accordance with principles of enlightened Justice."
The bequest being to an entity having capacity to take and administer the same under the laws of Sweden where it was intended to go, it is perhaps not necessary to determine whether under our laws a void or illegal trust was attempted. But the bequest being *185 for missionary or charitable purposes to an organization created to carry out such purposes, it may be upheld under our statutes as a bequest absolute to the organization as a gift upon condition.
In Shanahan v. Kelly,
In Bird v. Merklee,
It is not necessary to refer to our cases of Bemis v. Northwestern Trust Co.
Appellants contend that respondent did not appear in probate court and did not appeal from the decree there rendered, and hence had no standing in the district court. The trial in the district court was de novo. The case reached that court upon appellants' appeal and the court, in disposing of the same, had the power, and it was its duty, to give such a judgment as the proof then presented required.
Exceptions are taken to certain other findings and rulings than those hereinbefore considered, but, we think the propositions above discussed determine the case in favor of respondent, regardless of technical errors in such findings or rulings.
The judgment is affirmed.
Dissenting Opinion
I dissent. The testator went into considerable detail with what, obviously, he intended to be mandates concerning the methods of administering and the purposes of the gift. He went so far as to require that "the minister or preacher" to be maintained be a "resident continually in a given town." Moreover, he prohibited, so far as language can prohibit, the use of the principal "to pay the said salary or expenses" and directed that "only interest and income should be so used." Then, by proviso, he insisted that, if "interest and income" were not sufficient to meet his requirements, the donee or trustee should "pay the balance from year to year." It is for us to say what that language means, whatever the effect may be on the legacy. And by saying that such plain conditions are mere directions as to use, binding only on the conscience of the donee, it seems to me that we are making absolute a gift plainly intended by the donor to be conditional and in trust.
Dissenting Opinion
I concur in the dissent. *187