50 Colo. 610 | Colo. | 1911
delivered the opinion of the court:
In the last will of Andrew J. Macky, of Boulder County, is this item:
“7th. I further give and bequeath to and for a hospital building and a home to- be built in Boulder,
The individual plaintiffs below, defendants in error here, describing themselves in their complaint as constituting the members of the Board of County Commissioners of Boulder County, brought this action and in their complaint alleged the execution and probating of Mr. Macky’s will and that the Board of County Commissioners of Boulder County had complied with the condition of the foregoing bequest by accepting the same for the purposes and upon the conditions therein named, and, as stated in their prayer for relief, they asked to be appointed trustees of the legacy of -$50,00Q, for the purposes set forth in the bequest. Among the defendants whom they summoned into court to answer the petition are the present plaintiffs in error, who are minors, to whom, among others, the bequest was to be divided in the event that neither the City of Boulder, nor the County of Boulder, should agree to support and maintain the hospital therein provided for.
The trial judge in his opinion, which has been brought up in the record, expressed grave doubt as
The majority of the court are of opinion that this bequest is invalid, because its vesting is made to ‘depend upon an impossible, legally unenforceable condition precedent. The proviso or condition which must be complied with to* make the gift for the hospital effective is that “the county commissioners and their successors in office, will support and maintain the same, otherwise the said $50,000 to revert back,” etc. Whether this is a condition precedent or subsequent is not to be determined by any inelastic rule of construction. If it can be done, the intention of the testator must be given effect, and this intention is to be gathered from all his language upon the subject and in the light of the object he had in mind. When Mr. Macky said that the $50,000, which he undoubtedly intended should be used in building a hospital and home, should revert back and be distributed among certain legatees, if the county commissioners and their successors would not furnish the necessary support and maintenance, he undoubtedly meant thereby to- postpone the vesting of his gift until Boulder County, through appropriate action by its board of commissioners, became legally bound to do so. Mr. Macky' did' not intend to make provision for some mere temporary thing. His purpose was to provide a hospital and homé for all time to come for those who were entitled to enjoy its privileges. It is not the building, for whose erection the money was' given, but “the said- $50,000” itself, that is to revert and be so distributed if the required
To the minds of some-o-f the judges- — a majority' —there is another consideration that makes it doubtful if this gift can be given effect as a public charity. Public moneys must be devoted to the use- and benefit of the public generally. While Mr. Macky, of course, could give all, or-a-part, of his private-fortune to the maintenance -of- a hospital solely for poor widows and ■ orphan children, it ■ is questionable whether the county may lawfully appropriate public
To my mind there is another and equally insuperable objection to this bequest, as to which my brethren, who concur in the conclusion reached for the reasons already given, express no opinion. It will be observed that the testator does not make a gift either to the city or to the county of Boulder. The only connection which either of these public corporations has therewith is that one or the other may maintain and support the hospital, in which event .only does the fund become available for the specified use. It is quite apparent also, as stated by the trial judge, that no trustee was named by the testator. It is equally true that, while the beneficiaries as a general class are sufficiently designated as “poor widows and orphan children, while sick and unable to care for themselves,” the particular individuals
While we are inclined to the view that the beneficiaries are sufficiently designated as a general class to make the alleged bequest one for a public charity, and therefore, in that respect, there is a sufficient manifestation of the testator’s intention, the more important' and difficult question remains, whether or not a court of equity, under a will purporting to create a charitable gift, with no details whatever for making it effective, and where the testator himself has not in the first instance appointed a trustee and clothed him with power to carry out the bequest, or has not delegated such authority to the court, may, in the exercise of its judicial power, appoint trustees and clothe them with power and discretion to select the particular objects of the testator’s bounty and to execute the trust which apparently the testator endeavored to establish. The plaintiffs rely for their contention upon Clayton v. Hallett et al., 30 Colo. 231. That case is authority for plaintiffs’ position that the beneficiaries are sufficiently designated as a general class. And if the clause under consideration, or some other clause in Mr. Macky’s will, had contained all the details for executing the
Applying what we consider well established principles in the law of charitable trusts, it is apparent that this bequest must be held void.. The will contains no plan for executing the trust. It is entirely silent on that subject. The testator has entirely failed himself to appoint a trustee, or by any provision of his will to clothe his executors or trustees, to be later appointed by the court, with the power to determine who shall be the individual beneficiaries. Courts of equity may in certain cases appoint trustees of a charitable trust where the testator himself has failed to name them; but no well considered case in this country has been called to our attention, except where the broad English chancery doctine is enforced, which holds, where a will is thus silent, that the court may appoint a trustee and invest him with power which only can be given by the testator himself, unless the testator in his will makes pirovision for such appointment by the court, or otherwise delegates such power of appointment, or has provided in detail how the trust may be executed. Were there any circumstances which tended in the least degree to show that Mr. Macky intended to empower either his executors or the city or county of Boulder to1 make a selection of beneficiaries, or if he had manifested his intention to delegate such authority to a court of equity, we would be quick to respond by carrying out such intention. So' far as this branch of the case is concerned, we might, without much difficulty, sustain this bequest if the testator had in some way made provision whereby the courts could,, by the appointment of trustees, execute the trust.
It is said, however, by plaintiffs, that since the defendants, plaintiffs in error here, were by another clause of the will given legacies which they accepted upon the receipt of which they, by their guardian ad litem, agreed not to contest or question the validity of the will, they are thereby estopped to be heard here in this action to say that this bequest is void. And it is further said that the attack of the defendants upon this item of the will, not having- been made within one year after the will was admitted to probate, is barred by our pertinent statute of limitation. It is difficult to understand how these questions can be raised here. The plaintiffs themselves instituted this action for the avowed object of having themselves appointed as trustees of a fund which they say the testator, by the item heretofore copied, had given to a public charity, and incidentally and necessarily, they invoked the jurisdiction of the
The further contention of plaintiffs that, even if this particular bequest is declared void, the amount thereof will not, in any event, inure, to these plaintiffs in error, but will go- to the residuary legatees, is not properly before us for determination. That is a question which should be determined only when all the parties affected are before the court and where that issue is involved in the case. Disposed as we are to sustain wills and carry out the intention of testators, and to favor charitable trusts, we are compelled to declare this bequest under consideration void and incapable of enforcement by a court of equity. The judgment is, therefore, reversed and the cause remanded for further proceedings, if any, in conformity with the views herein expressed.
Reversed and remanded.
Decision en banc.
All the justices concurring except Mr. Justice G-aerigues, who does not participate in the decision.