| Mass. | May 20, 1893
A bequest for the use and benefit of disabled soldiers and seamen who served in the Union army in the late war of the Rebellion in the United States, their widows and orphans, is a good public charitable bequest. Maimed soldiers and .mariners, as well as orphans, are expressly mentioned in St. 43 Eliz. c. 4; Jackson v. Phillips, 14 Allen, 539; Powell v. Attorney General, 3 Mer. 48; Thompson v. Corby, 27 Beav. 649; Attorney General v. Comber, 2 Sim. & Stu. 93; 2 Perry on Trusts, § 699.
The persons described in the bequest are in most, if not all respects the same as those entitled to receive pensions under the laws of the United States at the time when the will was executed and at the time when the testator died. U. S. Rev. Sts. §§ 4692, 4693, 4702-4706. It is contended that the bequest is void, because it is dependent upon the contents of books of account of the testator, which were not in existence when the will was made. The direction is, that, “ in ease at my decease my books of account shall not show that I have given said sum of five hundred dollars annually for said purpose,” then the executors shall pay over “ such sums of money as will make up in full to the time of my decease said annual amount of five hundred dollars per annum,” etc. See Thayer v. Wellington, 9 Allen,
All the parties who have argued the case agree that for the last year the amount should be apportioned, as the testator lived eight months of that year. Either this is true, or nothing should be paid for that year. As the payments are to be made “ in full to the time of my decease,” a proportional payment for that year is perhaps what the testator intended.
It must be left for a single justice to determine to whom the money shall be paid, and in what way the gift can be made effectual. Decree accordingly.