| Mass. | Jul 10, 1888
This is a bill for instructions, brought by the administrator de bonis non, with the will annexed, of Captain John Perciyal. The will appointed John P. Healy executor, and gave the residue to Healy, “to be disposed of by him for such charitable purposes as he shall think proper.” Healy died, having disposed of only a small portion of the residuary estate in his hands for charitable purposes. The first question raised by the report is, “Whether the sum of $14,503.75, received by the plaintiff from the suit upon the bond of Healy, as executor of Percival’s estate, and from the suit against Healy’s administrator, should be paid to the next of kin of John Percival, by reason of the failure of said Healy to dispose of the fund in his lifetime for the purposes specified in the residuary clause of the will of said Percival, or should be applied to charitable purposes, according to a scheme under the direction of the court.”
There can be little doubt that such would be the construction adopted by the English courts. Attorney General v. Fletcher, 5 L. J. Ch. 75, 78. Pocock v. Attorney General, ubi supra. Moggridge v. Thackwell, 7 Ves. 36 ; S. C. 13 Ves. 416. Mills v. Farmer, 1 Meriv. 55, 100. White v. White, 1 Bro. C. C. 12. Baylis v. Attorney General, 2 Atk. 239. Attorney General v. Hickman, 2 Eq. Cas. Abr. 193. Doyley v. Attorney General, 2 Eq. Cas. Abr. 194. Anon. Freem. 262 b. Copinger v. Orehane, Ir. Rep. 11 Eq. 429. Although a different opinion has been intimated in some American cases, at least, where there is a naked power not coupled with a trust. Fontain v. Ravenel, 17 How. 369" court="SCOTUS" date_filed="1855-01-18" href="https://app.midpage.ai/document/fontain-v-ravenel-86936?utm_source=webapp" opinion_id="86936">17 How. 369, 388, 399 (explained and limited by Russell v. Allen, 107 U.S. 163" court="SCOTUS" date_filed="1883-03-18" href="https://app.midpage.ai/document/russell-v-allen-90755?utm_source=webapp" opinion_id="90755">107 U. S. 163, 169). The question must be kept distinct from other questions which do not bear upon the meaning of the words, such as whether a trust for charity generally is valid, or whether a court of equity can and will exercise so general a discretion as is necessary to carry out the trust, etc. If the meaning of the words alone is considered, it appears to be tolerably plain that the English construction is right. The nature of the gift sbows that an application of the funds to charity is the dominant object, and that the selection by the trustee is subordinate, or means to an end. It is not like a gift to a particular charity which fails; there the specific object of bounty
In the ordinary case of trusts for such persons of a class as the trustee shall select, when a duty to select is imposed upon the trustee by implication, a general intention to benefit the class is recognized, and the trust will not fail if the trustee accepts it and then fails to make a selection. Brown v. Higgs, 4 Ves. 708; S. C. 5 Ves. 495, and 8 Ves. 561. Burrough v. Philcox, 5 Myl. & Cr. 72. Penny v. Turner, 2 Phillips, 493. Harding v. Glyn, 1 Atk. 469. Mahon v. Savage, 1 Sch. & Lef. 111. Spring v. Biles, 1 Sch. & Lef. 113, note; S. C. 1 T. R. 435, note. Salusbury v. Denton, 3 Kay & Johns. 529. Nichols v. Allen, 130 Mass. 211" court="Mass." date_filed="1881-01-12" href="https://app.midpage.ai/document/nichols-v-allen-6420176?utm_source=webapp" opinion_id="6420176">130 Mass. 211, 219. Drew v. Wakefield, 54 Maine, 291.
Here there is a trust, not a mere power, and it was recognized in White v. Ditson, ubi supra, that a duty was imposed upon Healy to act, which is a strong circumstance in favor of the construction that the benefit is not intended to be made dependent upon his acting. Brown v. Higgs, 8 Ves. 561, 571, 574. Cole v. Wade, 16 Ves. 27. Moggridge v. Thackwell, 7 Ves. 36, 82. And it being settled that in some cases you can separate the general intent from the mode of execution, the nature of the gift in the particulars to which we have adverted already seems to us to make the case a stronger one for doing so than where the selection is to be made from relations or the like, as in the decisions cited. At all events, this ease is nearer to those than to a gift to such persons as A. may appoint. Mills v. Farmer, ubi supra. For there the limitation is as wide as the world, and if A. does not take the beneficial interest it is impossible to suppose that a gift is intended unless he exercises the power confided to him. But charitable purposes constitute a well-defined class, to which it is entirely conceivable that a testator should make a gift. We shall consider the validity of such a gift in a moment.
It is to be observed, that the objections to the exercise of the power to frame a scheme in the case supposed are not at all similar to those which apply to a diversion by the sign manual to wholly different uses of property devoted to a specific purpose which fails, because contrary to the policy of the law for instance, as in the well-known case of Da Costa v. De Pas, 1 Ambler, 228, S. C. 2 Swanst. 487, note, where a legacy to establish a Jesuba, or assembly for reading the law and instructing people in the Jewish religion, was devoted to the Foundling Hospital for the instruction of the children in- the Christian religion. In such a case there is no pretence, or only a pretence, of carrying out the directions of the testator. His will is arbitrarily overridden. Moggridge v. Thackwell, 7 Ves. 36, 81. But in a case like the present, whether the machinery used is the sign manual or a scheme prepared under the direction of the court, the testator’s wishes are carried out as he has expressed them, just as they might be by the appointment of a trustee, or by the framing of a scheme in those cases where the jurisdiction of the court is admitted.
The only objection on the ground of policy to the court’s entertaining jurisdiction which has occurred to us is, that it must choose from too wide a field when there is nothing more specific to guide it than a general direction to apply the fund to charitable purposes. If the objection in this general form were sound, a trust for charitable purposes generally ought to have been held void, whereas all the English cases imply, and express
If this be so, the objections remaining to the jurisdiction are purely historical; that it was not exercised in England, and therefore cannot be exercised here; that although in England there was a remedy existing alongside of the ordinary jurisdiction of the chancellor, and practically reaching similar results, yet, since this court has not the powers exercised by the sign manual, a will must be defeated, and a trust must fail which this court but for tradition is perfectly competent to carry into effect by machinery which it would have no hesitation in using were the case a hair’s breadth different.
If it is possible to avoid such a result, it is desirable to do so, and the historical tradition must be very clear, and. the limit
In that case, Lord Eldon said that he doubted whether, if the decree upon the principles attaching to charitable uses must have called upon the trustees, it could be said that, because the trustee is dead, the court is not to make a decree ordering such direction, for no such order could be given to tbe king executing by sign manual. And again in Paice v. Archbishop of Canterbury, 14 Ves. 364, 372, he laid it down generally, that, when the bequest is to trustees for charitable purposes, the disposition must be the subject of a scheme before the master; but that, when the object is charity without a trust interposed, it must be by sign manual. See Down v. Worrall, 1 Myl. & K. 561, 563; Reeve v. Attorney General, 3 Hare, 191,197; Cook v. Duckenfield, 2 Atk. 562, 567, decree stated; Moggridge v. Thackwell, 7 Ves. 36, 83, 84; Boyle, Charities, 239. In the Anonymous case, Freem. Ch. 261, “ it was said, and not denied, that if a man deviseth a sum of money to such charitable uses, as he shall direct by a codicil to be annexed to his .will, or by a note in writing; and afterwards leaves no direction, neither by note nor codicil, the Court of Chancery hath power to dispose of it to such charitable uses as the Court shall think fit.” Mills v. Farmer, 1 Meriv. 55, 59, 95.
Two other questions are raised by the report, and remain to be considered.
During his life the testator made certain deposits in the Massachusetts Hospital Life Insurance Company through William Sturgis. The Life Company issued policies promising to pay Maria Gassett interest “ unless added to the principal sum as provided below,” and after her death to pay the amount of the principal sum to Captain Percival, his executors or administrators. The provision in the policy referred to allowed Mrs. Gassett to have the annual “ payments added to the principal sum (in order to increase said principal sum),” giving the company sixty days’ notice. Interest was capitalized annually by the company on these policies, from their dates in 1851 and 1852 through January 1, 1863, and the amount of the interest and the former capital added was indorsed on the policy, under the head, “ New Capital, being the principal sum with the successive accumulations of interest.” It is alleged, and admitted in the pleadings, that this was done at Mrs. Gassett’s election, and in pursuance of the agreement in the policies. An express direction on her part was not proved, but it appears that Mrs. Gassett received interest on the new capital for over twenty years, until her death, and never objected to the additions or demanded the interest which had been capitalized.
Captain Percival by his will stated that he had made provision for Mrs. Gassett, and proceeded, “It is not my wish that any investment which I have made, or hereafter may make for her, should be disturbed or changed by this will, but I direct that the sum shall remain and be disposed of according to the conditions thereof, in the same way as though this will had not been made.
On the former question it is argued that the testator meant, by the language which we have quoted, to withdraw the whole investment in the Hospital Life Company from the operation of his will. If that was not his intention, the clause has no effect, since, of course, Captain .Percival could not disturb by his will Mrs. Gassett’s vested life interest under the policies. But the words used apply to “ any investment ” which the testator may make in the future, as well as to those which he has made in the past, and they apply only to investments u for her,” and to nothing else. We cannot limit their meaning to a specific reference to the investments in the Hospital Life Company as a whole, nor extend it beyond Mrs. Gassett’s interest, whatever it may turn out to be in this or that particular fund. We are constrained to hold' that Captain Percival’s interest in the policies is not excepted from the operation of his will, but is a part of the estate disposed of by it, and must be applied to charitable purposes.
On the last question, as the pleadings stand, and apart from the pleadings in view of Mrs. Gassett’s course of conduct while alive, we must assume that the additions of interest to capital were made with her consent, as recommended by Captain Percival in his will, and we must take the additions to have been made absolutely and for all purposes, so that her executor has no claim, but the principal fund as increased goes under the policies to the administrator of Captain Percival, to whom the company paid it. See In re Curteis' trusts, L. R. 14 Eq. 217.
Decree accordingly.