62 N.J. Eq. 339 | New York Court of Chancery | 1901
The cause having come to a hearing on bill and answer, the allegations in the answer must be taken to be admitted to be true. Chancery act, Gen. Stat. p. 379 § 43.
The terms of the residuary bequest are so peculiar that the executors are justified in asking the instructions of this court
The defendants dispute the validity of the residuary gift upon these grounds—first, that it is so uncertain and indefinite in its terms that it cannot be .carried into effect, in that it does not sufficiently describe the books to be bought; that it fixes no place where they shall be' located, and prescribes no plan whereby they may be used; secondly, that it casts upon the executors the performance of an ever-continuing trust, which is beyond their power; thirdly, that it creates a perpetuity, and that it is not a charitable bequest, and is therefore void.
As to the criticism of the residuary gift, because of its uncertainty, it appears, on its face, to direct the purchase of books treating of a well-known and widely-discussed subject of common interest. Any books which treat of the philosophy of Spiritualism, which are not sectarian and which deal with that subject freely and liberally, are within the class created by the testator. Such books may present the philosophy of Spiritualism favorably or unfavorably to the acceptance and extension of that belief; in either case they comply with the testator’s terms. It cannot be assumed that if an order were given for the purchase of such books, it could not be filled because of the uncertainty of the description of the books. There is no allegation in the answer that such a condition exists, nor is it probably true in actual fact.
It is true the will mentions no specific place where the books, when purchased, shall be located, but precise certainty in such an incident is not necessary to the efficacy of the gift. They are required to be placed in a location where they can be “free to all,” &c. The testamentary declaration indicates that they are to be kept intact in a place;where they can be visited by all who are interested, and does not direct that they shall be distributed. More specific designation is not necessary.
To the objection that no definite plan is formulated for the use of the books in the will, it is well answered that the general object is fully expressed, and there is no indication on the face of the will that the testator had in his mind any particular plan as to the mode in which his bequest should be carried into effect. This case radically differs on this point from the case of Smith
None of the criticisms of this residuary bequest for indefiniteness are justified. The adage “that which can be made certain, is of itself sufficiently certain,” is an answer to all of them.
The second objection to the residuary bequest, that it imposes upon the executors an ever-continuing trust, which is beyond their power to perform, and the third^that it creates a perpetuity, and is not a charit}!-, and is therefore void, will be considered together.
The terms of the bequest, and the obvious intent of the testator there expressed, show that he expected that the executors and their successors would carry this trust into effect, but the fact that the testator has selected trustees who are incapable of performing the trust, will not be permitted to defeat the trust itself, where it is a charitable bequest. Is this residuary gift a charity ?
In Thornton v. Howe, 31 Beav. 14, there was a residuary gift, which the testator directed to be applied “for the printing, publishing and propagation of the sacred writings of Joanne South-cote.” Mrs. Southcote imagined herself to have been specially selected by God as the organ whereby mankind might communicate with him. Her writings exposed her intercommunings with the spiritual world, and might fairly be classed with the books upon the philosophy of Spiritualism, for the purchase of which the testator in the case under consideration provides. Sir John Eomilly expressed his opinion that this woman was both ignorant and foolish, but he decided, nevertheless, that her bequest providing for the publication of her writings was within the charitable class, and would be enforced in equity. His judgment was cited, with approval, by the court of appeals, in George v. Braddock, 18 Stew. Eq. 764.
The bequest in the will now before me is a donation for the purchase of books upon a subject interesting to a large class of readers, access to which, by the express terms of the will, is required to be “free to all who desire to think for themselves, and who are seeking for the truth from the true and living God.” The class which may possess these prescribed characteristics is so indefinitely large that the gift is substantially for the benefit of the general public. No one is required to pay anything for the exercise of the privilege secured by the gift. No one can receive any pecuniary profit from the performance of the trust. Its. opportunities and benefits are freely offered to all, and it may fairly be classed as a charitable gift for the good of mankind. Such a gift will not be permitted to fail for want of a trustee. Where the testator has, by neglect or mistake, failed to name one capable of executing the trust, a court of equity will carry it into effect by appointing an efficient trustee. Pom. Eq. Jur. § 1026; Mason's Executors v. Trustees of Methodist Episcopal Church, 12 C. E. Gr. 53.
The complainants are entitled to a decree that the residuary bequest in question is legal and valid, and that it is one of a class which will be recognized and enforced in a court of equity.
The executors who have the residuary fund in hand, but are unable to execute the trust, may apply for the appointment of a competent trustee to perforin it, to whom they may safely pay it.