| Mo. | Jan 15, 1876
delivered the opinion of the court.
The exceptions in this case arise wholly out of the ruling of the court below in holding certain provisions in the will of Leopold Schmucker void. The following are the portions of the will thus held to be void, and which now form the subject of controversy:
1st. “I give and bequeath to John H. Reel two hundred dollars, to be applied to a specific purpose which I have explained to him.
2d. I give and bequeath to John H. Reel the further sum of five hundred dollars for another and specific charitable purpose which he well understands.
3d. The balance of my property of every description, I give, devise and bequeath to John H. Reel, to apply in charity, according to his best discretion, and I appoint said John H. Reel executor of tins, my will.”
The will then continues: “And whereas I hope, that Mr. Reel aforenamed will consent to act as mv executor, and desire to save him all trouble and annoyance in that regard, and have every confidence, good faith and discretion, and
To invalidate the will and sustain the judgment of the lower court, it is insisted, first,, that the trusts attempted to. be made are so vague and uncertain as to render them incapable of being carried into effect according to law ; and, second, that the attempted bequests are in violation of the constitution of this State and void.
On the other hand it is contended that the bequests to the executor vested him with the absolute title to the property, and that the words' of the testator expressing a desire that he should use it in a certain way, have no-binding force.
Courts of equity have frequently discussed the question as to the force of words or expressions of recommendation in walls in regard to the use to which the testators might desire the persons to whom they had given legacies to put the game. The prevailing doctrine is, that no particular form of expression is requisite in order to create a binding and valid trust; and that wards of recommendation, request, entreaty, wish or expectation, will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the object of the trust. (Reeves vs. Baker, 18 Beav., 372; Macnab vs. Whitbrad, 17 Beav., 299; Jarm. Wills, 336; 2 Redf. Wills, 2 ed., 410.)
Where a bequest is for a purpose of liberality or benevolence, or private charity, and is of a nature so general and undefined.as to be incapable of being executed by the court, it fails altogether, and the heir at law or the next of kin, as the ease may be, becomes entitled to the property, as in eases of
Bequests for purposes of benevolence and general liberality, such as the trustee shall approve or direct, cannot be supported either as general trusts or for charitable uses. In Morice vs. Bishop of Durham (9 Ves., 399) Sir William Grant, M. R., in discussing the different trusts and the principles of law applicable to them, lays down the following propositions ; First, If property is given to one with a mere recommendation that he apply a portion of the income.in a particular mode, intending to leave it optional with the donee, the gift is absolute; Second, If the donee is a mere trustee to carry into effect the purposes of the testator in regard to certain persons intended to be benefited, but not sufficiently identified in the will, the property is undisposed of, and courts of equity will not attempt to carry those purposes into effect by conjecture merely, but will regard the property as belonging to the heir, or the next of kin, as the case may he.
Now it is sufficiently apparent here that this will cannot be brought within the first of the propositions above laid down. The testator did not intend to leave it optional with the devisee or executor, as to whether he would apply the bequests or not. He first gives and bequeaths two hundred dollars to be applied to a specific purpose which he had explained to the donee. There is no mere recommendation that the application should be made if the executor saw proper to act at his will and discretion ; but the bequest is made for a defined object, a specific purpose which the testator had explained, but which he did not see fit to embody in the will. The same remarks are equally applicable to the second bequest of five hundred dollars. That amount is also given for another specific charitable purpose, which the executor or donee well understood. The residuum is then devised and bequeathed to the executor to apply in charity, according to his best dis
There is no mistaking the purport of this language. It all goes to show that the executor took bequests clothed with a trust to carry out certain objects or purposes not defined or expressed in the will.
Iu the case of Briggs vs. Penny (3 DeGex & Sm., 525) the proceeding was commenced by the next of kin of Frances Harley, the testatrix, claiming the residuary portion of her estate, and the executrix, Sarah Penny, claimed that she was entitled to it absolutely under the will. In Frances Harley’s will was the following bequest: “To Sarah Penny of Great James Street, Bedford Row, £3000, and a like sum of £3000 iu addition, for the trouble she will have in acting as my executrix.” Then follows this clause: “And lastly, as to all the rest, residue and remainder of my personal estate and effects subject to and chargeable with the aforesaid legacies and annuities, save and except such of them as are of a charitable nature, which I exclusively charge upon such part of the said personal estate as by law I am empowered to charge therewith, and not out of any part of my lands, tenements or hereditaments, I give and bequeath the same unto the said Sarah Penny of Great James Street, Bedford Row, her executors, 'administrators and assigns, well knowing that she will make a good use, and dispose of it in a manner in accordance with my views and wishes.”
After the testatrix’s death, among her papers some writings were found denoting several charitable as well as other gifts, which the testatrix desired should be made. One of
The vice Chancellor ruled out the papers expressing the testatrix’s wishes which were made after the will was executed, and which, it did not appear, was ever communicated to the executrix previous to the'making of the will, on the ground that they were contrary to the will’s act. He then decided that the will on its face showed that the residuary portion of the estate was not to go to and vest in the executrix as legatee; that the expressions, “giving and bequeathing the residue to the defendant, her executors, administrators and assigns,” well knowing that she would make a good use, and dispose of it in a manner in accordance with “testatrix’s views and wishes” show clearly that a trust was intended, and that, as the trust was not expressed in, and could not be gathered from the will, it was incapable of being carried out and consequently it fell, and the estate descended to the next of kin.
This case was afterwards appealed and came before the Lord Chancellor for decision, where after thorough consideration, the decree of the vice Chancellor was affirmed. (Briggs vs. Penny, 3 Mac. & G., 546.) The chancellor held that the clause in the will by which the testatrix bequeathed all her residuary personal estate to the executrix, well knowing that she would make a good use, and dispose of it in a manner in accordance with testatrix’s views and wishes, did not give the residue to the executrix for her benefit; but that the words of the bequest created a trust. The doctrine was announced that words accompanying a gift or bequest, expressive of confidence or belief or desire or hope that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions, 1st, that they are so used as to exclude all option or discretion in the party who is to act, as
This is well illustrated by the case of the Corporation of Gloucester vs. Osborn (1 H. L. Cas., 272). There a testator gave to his executors beneficially, in equal proportions, all his property which he might not dispose of, subject to bis debts, and any bequests which he might afterwards make. He afterwards made a codicil in these words, ‘Tn a codicil to my will, I gave to the corporation of Gloucester £110,000 ; in this I wish my executors would give £60,000 more to them for the same purpose as I have before named.” No other codicil was produced, and there was nothing to show for what purpose the legacies were given. The corporation of Gloucester filed a bill claiming' the two legacies, but the court of chancery decreed against them, and the decree was affirmed in the House of Lords, where it was held that the purpose of both legacies should be regarded as being the same, and that both failed for uncertainty of purpose.
This case might very well rest here, as we have seen that a trust was created by the terms of the will, and the trust, is wholly incapable of enforcement on account of vagueness and uncertainty. But in the court below, the second point was also, passed upon, and it lias been argued here by counsel 5
When this will was made our constitution declared, “that every gifr, sale or devise of land to any minister, public teacher or preacher of the gospel, as such, or to any religious sect, order or denomination, or to or for the support, use or benefit of or in any trust for any minister, public teacher, or preacher of the gospel, as such, or any religious sect, order or denomination ; and every gift or sale of goods or chattels, to go in succession, or to take place after the death of the seller or donor, to, or for such support, use or benefit; and also, every devise of goods or chattels to, or for the support, use or benefit of any minister, public teacher, or preacher of the gospel, as such, or any religious sect, order, or denomination, shall be void.”
The will here was obviously made to evade the above provision in the constitution. The executor took memoranda of the testator’s intentions, and they are the same that were subsequently embodied in the secret instructions.
The secret instructions, delivered contemporaneously, reveal the intentions of the testator,- and stamp the character of the gift. According to the evidence submitted on the trial, mass can be said only by a priest, and a priest is one who ministers at the altar, and the pecuniary acknowledgment for saying the mass is applied to the support and benefit of the priest saying it. Therefore, if the bequests are carried out and applied to masses, they will be paid over to the priest or priests, saying the masses, for the support and benefit of such priest or priests. As a priest is one who ministers at the altar, he comes within the definition of the constitutional provision.
Courts of equity have always exercised their jurisdiction in setting aside all transactions or agreements of parties, made in fraud of the policy or to evade the prohibitions of law. Thus, Judge Story says, that if a devise is made upon a secret trust for charity in evasion of the statute of Mortmain, it will be set aside. (Sto. Eq. Jur., 297.) The question has come up in England where parties by secret trusts have sought to carry out their purposes in a manner prohibited by the statute of Mortmain. But the courts have always held these attempted evasions absolutely void. In the case of Edwards vs. Pike, (1 Eden, 267) the testatrix was desirous of devising certain of her property for a particular use, but being apprehensive that it would be void in consequence of the statute of mortmain, she devised the same to her two neices, and informed them of that fact, and had read to them a memorandum, stating what her intentions were, and entreated them to promise her that they would dispose of the property according to her wishes. The court h-eld that this was an elusory disposition, in order to evade the statute, and the devise was declared to be void. So in Boson vs. Statham (Id., 508), the bill declared that the devise was upon a secret trust,
The principle could not be otherwise. No court can permit a party to do indirectly what he is prohibited from doing directly. Whenever it is ascertained that a thing is done for the purpose of eluding a statute, or evading the prohibitions of a law, there is but one course to pursue, and that is, to declare the transaction void. It follows, therefore, that the judgment of the circuit court must be affirmed ; 1st, because the will, by its bequests, gave the property to the executor in trust for certain purposes, and those purposes are not defined so that a court can carry them out; and, 2d, because if we look at the written wishes of the testator to ascertain what the trusts were, we find that they are prohibited by the constitution.
Judgment affirmed.