98 F. 495 | U.S. Circuit Court for the District of Massachusetts | 1899
The demurrer to the bill calls for a construction of the will of Isaac P. Langworthy. The third clause is as follows:
“Third. I direct my executors to pay over to the American Congregational Association, as soon as may lie convenient after my decease, the sum of ten thousand dollars (unless previous to my death I shall have deposited said sum with said association), upon condition that said association agrees to pay to my wife, in quarterly payments, during her life, the sum of $-100, and upon the death of my said wife to pay over semiannually the net income of said $10,000, and any increase thereof, to the library committee of said association; the same to be expended by said committee in the purchase of local histories, genealogies, commentaries of the Bible, and ecclesiastical histories, for said library.”
The complainant contends that this clause imposed upon the American Congregational Association an absolute condition preced
The bill alleges that on or about April 1, 1898, the executor sold property at divers times, and paid over to the American Congregational Association the sum of $10,000, and that the executors of Mrs. Langworthy “acquiesced, and promoted the said proceedings, and permitted the same to be approved by said probate court.” This being after the death of the annuitant, it appears that there was at the time of payment no existing condition for an agreement to pay an annuity.
The complainant further alleges that “the defendant had no power to make the agreement which is by the will of said Isaac P. Lang-worthy made a condition to the vesting of the legacy, and it did not in fact undertake, enter upon, or make any such agreement.” This averment of a lack of power relates solely to the power to agree to pay an annuity, and not to the power to hold and apply to the designated uses after the death of Mrs. Langworthy. But, even were it the fact that the association was incapable of agreeing to pay an annuity), this wpuldseem to be no reason for defeating the testator’s intention to devote the fund to the purposes of the association if the condition had terminated by the death of the annuitant before the arrival of the time for paying over the fund. The association, however, had such power. The act of incorporation is referred to by its title in the bill, and was presented to the court on the argument of the demurrer. The conferred powers to hold real and personal estate would include the power to hold property burdened with an incumbrance, or a fund charged with an annuity.
It appears that the fund has been paid to the association, and that the uses to which the testator intended it to be applied after his wife’s death are within the objects of the association. We will next consider whether a failure by the association to make a formal agree