Tucker v. Seaman's Aid Society

48 Mass. 188 | Mass. | 1843

Shaw, C. J.

The plaintiffs in the present case are the executors of the last will and testament of Nathaniel Tucker, late of Milton, deceased, against the Seaman’s Aid Society, established in Boston, and the treasurer of that society, and the Seaman’s Eriend Society, and the treasurer of that society. The bill is in the nature of a bill of interpleader, in which the plaintiffs set forth certain legacies, to “ the Seaman’s Aid Society in the city of Boston.” They then set forth the fact of the existence of two societies in the city of Boston; one denominated the Seaman’s Aid Society, and one called the Seaman’s Friend Society, both having similar objects in view — that of relieving the wants and improving the condition of sea men — both of whom claim the same legacies; and the bill calls on said parties to set forth their respective claims, and the grounds thereof, to the end that the executors may safely carry the said will into effect, according to the true construction and effect thereof.

It appears, by the proofs and pleadings in the case, that there are three charitable societies established for the aid, improvement and encouragement of seamen; one established in the city of New York, called the American Seaman’s Friend Society, extending its care to seamen in various places and States ; one called the Boston Seaman’s Friend Society, established in Boston, and said to be affiliated or connected with the American Seaman’s Friend Society, in the relation of parent and branch societies, having in view similar objects and purposes of charity. The other is established in Boston, and is composed of females, principally or exclusively. The bequest in this will is in terms to the Seaman’s Aid Society; but the other two soeieties claim that the legacies may be paid to them, on the ground that they or one of them were intended by the testator to be the object of his bounty, and the almoners of his charity to seamen, and that the other was not so intended by the testator. The ground set forth in the answer of the former, in respect of their claims, is, that from the circumstances, conversations and directions leading to and attending the making of the will, they fully believe, that from the testator’s previous acts and declarations, his acquaintance with the agents and promoters of the Seaman’s Friend Society in New York, his taking periodical publications issued by them, and a great variety of collateral circumstances, it was his intention to make these bequests to the Seaman’s Friend Society in New York, and not to the Seaman’s Aid Society, and that the name of this latter society was inserted by mistake, in consequence of wrong information given to him by the scrivener who wrote his will. The question is, which of these societies is entitled to the legacies.

One ground of argument in favor of the Seaman’s Friend Society, and in support of their claim to a preference over the Seaman’s Aid Society, is, that the latter is a voluntary society, not incorporated, whereas it appears that both the other societies are legally incorporated. A considerable part of the able argument of the learned counsel for these societies is taken up in an attempt to show that the voluntary society is not competent to take and hold property, and therefore it could not have been the intent of the testator to make a bequest to such an association. If there were nothing in the will to control or modify the direct gift to the unincorporated society, there would be some weight in the consideration. But it appears, by the will itself, that the testator made many bequests, for the promotion of religious and philanthropic objects, to societies and associations well known by the designations under which they acted ; and it probably occurred to him, that some of the associations might not be incorporated, and so could not take and hold property, in the aggregate name or names of association ; and he took the precaution to insert a clause to this effect: “My will is, in all cases in_this will, where any sum is given to any society or voluntary association not incorporated, that the same shall go to the treasurer, for the time being, of such society or voluntary association, for the purposes of such society respectively ; and that the receipt of such treasurer for the same shall be a sufficient discharge.” Taking this in connexion-with the clause making the bequest, it is a gift to a person designated as the treasurer of a voluntary society, and as capable of being identified as any other individual person; and the trust upon which he is to take is indicated with equal certainty. This reduces the question to a mere question of fact, whether there be a society so named or described as to be capable of being identified, and if so, whether such society has a treasurer. These points are proved by the evidence, as fully and clearly as if the Seaman’s Aid Society were incorporated by a legislative act. There is, in point of fact, a society well known as the Seaman’s Aid Society, composed of many hundred members, all or mostly females, taking regular and active measures for the relief and improvement of seamen, and their families, having annual meetings, malting annual reports, with calls on the public for assistance, and organized by the annual election of a president, treasurer, and other suitable officers. There w'as then a person precisely described, and as effectually identified as if named, capable of taking the bequest, upon a trust for charitable purposes, clearly designated. It becomes therefore entirely unnecessary to consider whether, if it had stood as a bequest to the society alone, and it turned out that the society was not incorporated, the society could have taken the bequest. We have taken no notice of the circumstance that this society, in some of their reports, have spelt the name Seamen’s Aid, and in some of them Seaman’s Aid. The last syllable being unaccented, the sound is the same, and the spelling is immaterial; the name is the same.

But if it were necessary to go more minutely into this com parison of claims, we think it appears somewhat uncertain whether the Seaman’s Friend Societies are incorporated. We cannot speak of the American society in New York, because we have not been furnished with the act of incorporation. But we have been referred to the St. of 1828, c. 81, by which a body is incorporated under the name of “ the Managers of the Boston Seamen’s Friend Society,” with.power to hold real and personal estate. It consists of twelve persons named, together with the president, vice president, secretary and treasurer of the said society. It is moreover provided in <§. 2, that said managers shall never exceed sixteen in number, of whom the president, vice president, secretary and treasurer of the Boston Seamen’s Friend Society shall be members ex officio, and that they shall fill their own vacancies. This is not an incorporation of the whole body of contributors to the society; but it presupposes the previous existence of a voluntary society of the name mentioned, and it looks to the continued existence and operation of the same voluntary society, by the action of which a part of the members of this corporation are to be furnished. If therefore the question were in any degree to depend upon the point, that one of the societies is not legally incorporated, and therefore, as a society, could not take the bequest, it would be proper to consider more closely whether the same objection would not lie to the claim of the other. The bequest is not made to the managers, &c., by their corporate name, and is not therefore made to the corporation as such, but to the voluntary association. The treasurer in each case is chosen by a voluntary and unincorporated society, and his election can be proved, in the one case, in the same manner as in the other, by the meetings, acts and measures of the voluntary association. If then resort is had to the clause in the will, vesting the gift in the treasurer, when the society indicated by the name is unincorporated, the one stands on the footing of equality with the other. On both grounds, therefore, we think this consideration, that one society was incorporated and the other not, is to be laid out of the case.

We are then brought to the more important and difficult question, which of these societies,, under the circumstances admitted or proved, is entitled to take these legacies; for although in form the gift is to the treasurer of the Seaman’s Aid Society, yet it is to be given to him in trust for the society, and to be applied and expended under their direction; and therefore it may be considered, for all substantial purposes, in the same manner as if it were a gift to them, which they could legally take.

We consider the fact proved beyond doubt, by the evidence, that the testator intended to make a charitable bequest of property, for the relief and improvement of seamen ; that he had been induced to take an interest in that subject by his previous acquaintance with persons who were connected with the American Seaman’s Friend Society; that the principal society was established in New York ; that this interest and sympathy for the wants of seamen were extended and fostered by taking a periodical publication, published by the American Seaman’s Friend Society at New York, and devoted to the purposes of setting forth the wants of seamen, and their claims upon the sympathy and aid of the philanthropic, to advance both their spiritual and temporal interests; that the Boston Seaman’s Friend Society, though apparently not known to the testator, existed in connexion with the parent society at New York, was under the contro and management of persons having a common object, and that the bequest to one would, in general terms, tend to the accomplishment of the same purposes as if made to the other. It does not appear, however, that the testator had any knowledge of the Boston Seaman’s Friend Society, or if he had, that he regarded it as a separate society or association. We consider it also proved, that there was an association, not incorporated, but clearly and distinctly identified, organized as a charitable society, holding annual meetings, having a president, secretary, and other suitable officers, publishing annual reports, and appealing to the public for charitable assistance, known and designated by the name of the - Seaman’s Aid Society ; that this society was principally, if not wholly, composed of and managed by females, and had for its general object the temporal and spiritual benefit of seamen. It is also, we think, well proved by the circumstances which preceded and attended the execution of the will, as shown by extrinsic evidence, that it was the intention of the testator to make the bequest in question to the former of these societies, and, at the time of the execution of his will, he believed that he had done so, by the name and designation that he had used; but that the name thus used in the will was not the proper name and designation of the society to whom he intended to make the bequest, but was the precise and proper name of the latter society, having the same general object in view, but conducted and managed by different persons, and being a society to which the testator did not intend to make the bequest. It is also proved that the testator was led into this mistake by erroneous information, honestly given to him by Mr. Baker, who drew his will, not intending to mislead or deceive him, but truly to inform him ; that Mr. Baker knew of the latter society, in Boston, had seen its reports, knew that it had some connexion with Mr. Taylor, and had that society in his mind when he mentioned that society to the testator, erroneously believing that it was the society intended by him, and gave the true name of the latter society to him; that the testator acted on this erroneous infor mation — erroneous as to his real purpose, as it now appears by the evidence — and made the bequest to the Seaman’s Aid Society, by their precise name and designation, to wit, “ the Seaman’s Aid Society in the city of Boston.”

It is therefore the case, where the testator makes a bequest to one by his proper Christian and surname, and place of residence, erroneously believing that he holds a certain relation, as, for instance, that he is the son of an old friend, having been so informed by one who thought he knew, and believed the person so designated to be the son of the testator’s old friend; whereas in fact, as proved afterwards, a man of the same surname, but a distinct Christian name, and living in another town, was the son of the old friend — the person whom the testator intended to benefit by the bequest.

It is not easy to reconcile all the cases on the subject of the admission of extrinsic evidence to control or explain, or in any way give effect to, the terms of a will, and to extract from them a general rule with all its exceptions and qualifications. In general, no extrinsic evidence of the intention of the testator is admissible to control or alter the written provisions of a will. It would be contrary to the general rule of the common law, viz. that where a party has expressed his contract or his testament in writing, duly executed, such writing is in its nature better evidence of his intentions than any extrinsic evidence could be. But another and more conclusive reason is, that the law requires a will to be executed in presence of three witnesses, and with other solemnities calculated to insure correctness, and guard against mistake and imposition; and without this precaution, every act and instrument purporting to give property, real or personal, by will, is inoperative and void. Since the revised statutes, the old law requiring three witnesses to a (revise of real estate, is extended to bequests of personal property. Rev. Sts. c. 62, § 6. If therefore it could be proved by a dozen witnesses, beyond all doubt, that a man intended to make a will and give his property in a particular way, and to give nothing more, and gave instructions to have a will to that effect written, but befrre it could be written he was suddenly killed, it could not take effect. So if he in fact executed a will in which a legacy was omitted, that was intended to be given, expressed in the written instructions, and proved by the testimony of the scrivener, and the production of the minutes. So where a bequest is inserted, but the name or the description of the legatee is left blank. In the one case, it would be to establish, by parol evidence, a testamentary bequest, which the law declares to be void, unless in writing and witnessed; in the other, it would give greater weight to an unexecuted memorandum, or to viva voce testimony, than to an instrument formally executed, and would equally violate the statute requiring the execution of a will to be attested before it can take effect as such.

The general rule certainly is, that the intent of the testator is to govern in the construction; but it is the intention expressed by the will, and not otherwise. To get at the intention expressed by the will, every clause and word are to be taken ■nto consideration, because one clause is often modified and explained by another; every implication, as well as every direct provision, is to be regarded. And further; as a will must necessarily apply to persons and things external, any evidence may be given of facts and circumstances, which have any tendency to give effect and operation to the words of the will; such as the names, descriptions and designations of persons, the relations in which they stood to the testator, the facts of his life, as having been single or married one or more times, having had children by one or more wives, their names, ages, places of residence, occupations; so of grandchildren, brothers and sisters, nephews and nieces, and all similar facts. And the same kind of evidence may be given of all facts and circumstances attending the property bequeathed, its name, place, and description; as by its former owner, present occupant, or otherwise. If, when the will comes to be thus applied, there is no reasonable doubt as to the persons and things intended, there is no room for any further admission of evidence, to show the intent of the testator. As to the identity of the persons and things mentioned in the will, the same rules will apply as apply to deeds or other instruments. If in the matter of description there is a mistake, that is, if there is no one who corresponds to the description in all particulars, but there is one who corresponds in many particulars, and no other who can be intended, such person will take. So of the property given; if it be a farm, for instance, corresponding in several particulars with one owned by the testator, though differing in some one, but there is no other corresponding with it at all, such farm will be held to pass.

Still, however, there is a well defined class of cases, wherein extrinsic evidence of the actual intention of the testator is admissible, which is that of equivocation, or latent ambiguity. It is the case where the will is plain and clear on its face, and only becomes doubtful when applied to the subject matter. The testator, for instance, gives the manor of Dale to his nephew John Smith, and, in applying the will to the property, it appears that the testator had two manors of Dale, or two nephews named John Smith, and no inference can be drawn, from other parts of the will, or the circumstances and relations of the testator, to indicate which was meant. Perhaps it would be more consistent with principle, if this were a new question, to hold that such a bequest is void for uncertainty, and so let in the heir; it being in truth impossible to see, by the will, which nephew took, or which estate passed. But as the will does" clearly describe a particular estate, and names a person in being as the object of the testator’s bounty, it was early held as the legal construction of the statute, that from the necessity of the case, extrinsic evidence must be admitted to show which was intended. Doe v. Chichester, 4 Dow, 65, 93. But in the same case, in the house of lords, it was held by the unanimous opinion of the judges, that where land was identified, in a will, by its designation of “ my estate of Ashton,” and there was an estate in the parish of Ashton, it was not competent to introduce extrinsic evidence to show that other lands, not in Ashton were intended by the testator to be included; because the description in the will limited the estate to lands within the parish named, and that left no room for extrinsic evidence of intent

This general principle is asserted and maintained in a recent case in which the authorities were fully reviewed, and the principles of this branch of the law were explained with great clearness. Doe v. Hiscocks, 5 Mees. & Welsb. 363. In that case, the eminent judges who decided it fully recognized the authority of Miller v. Travers, 8 Bing. 244, and 1 Moore & Scott, 342.

That case of Miller v. Travers is of very high authority, and has a strong bearing upon the present. It was a case in chancery, but was the joint decision of the Lord Chancellor, and Chief Justice Tindal and Chief Baron Lyndhurst, assisting him. The actual devise was of all the testator’s real estate in the county of Limerick, and in the city of Limerick. At the time of making his will, he had no real estate in the county of Limerick, but a small real estate in the city of Limerick, and considerable real estate in the county of Clare. Evidence was offered to show that the testator intended to include the estate in the county of Clare; that it was in fact embraced in the form of a will, directed and approved by the testator ; that this draft was sent to a conveyancer, to make some alterations in other particulars; that he inadvertently, and without authority, struck out the word Clare, so that the estate there situated was not included, and that the testator, after keeping it some time, executed it, without perceiving the omission. It was considered on the assumption that the extrinsic evidence, if admissible, would show that Clare was omitted by mistake, and that the land in that county was intended to be included in the devise. But it was held that the evidence was not admissible. It was also decided, that it would make no difference, in this respect, if it were apparent from the insufficiency of the estate mentioned to meet the charges upon it, or from other circumstances, that some mistake had been made; still it would not be admissible to show that the testator intended to devise property, which had been omitted by mistake. There was a subject matter upon which the will could operate, and it must be limited accordingly. There was no designation by name or description, imperfect or otherwise, which could extend the will so as to include estate in the county of Clare: the evidence of intention therefore, however strong, could only show a purpose to devise, unexecuted by the will; and to give it effect as a devise would be to establish a devise by parol evidence, or evidence extrinsic to the will, against the express provisions of the statute of wills.

This case is full of instruction upon this subject, and if its authority is admitted, it is decisive of the present. We think the same principle has been adopted and sanctioned in other States, and in this. Jackson v. Sill, 11 Johns. 201. Richards v. Dutch, 8 Mass. 506. Farrar v. Ayres, 5 Pick. 404. Crocker v. Crocker, 11 Pick. 252. Brown v. Salstonstall, 3 Met. 423.

The principle established by the cases is, that the estate must pass by the will. If the will applies definitely to two or more persons, so that either would be entitled to take it, under the will, but for the existence and claim of the other, then parol evidence is admissible to prove which was intended. When that proof is supplied, the will operates, by its own force and terms, to give the property to that one, as ii such person had been the only one named or described. The evidence does not create the gift, but simply directs it. Where the name or description, used in the will, does not designate, with precision, any person, but where, when the circumstances come to be proved, so many of them concur to indicate that a particular person was intended, and no similar conclusive circumstances appear, to distinguish and identify any other person, the person, thus shown to be intended, will take. Such was the case of Beaumont v. Fell, 2 P. W. 141, where a legacy to Catherine Earnley was held to be good to Gertrude Yardley; for although both the Christian and surname were mistaken, yet the description sufficiently identified the person, and there was no other person to whom it would apply at all. To the same point is Parsons v. Parsons, 1 Ves. jr. 266. See 12 Adolph. &. Ellis, 451.

When there is no person, taking name and description together, who answers to the name and description in the will, and upon the proof of facts and circumstances to enable the court to infer who was intended, if the proof does not so predominate in favor of either as to enable the court to determine who was intended, still extrinsic evidence, to show whom the testator intended, will not be admitted, but the bequest will rather be held void for uncertainty. Thomas v. Thomas, 6 T. R. 671.

With these views of the law, the court are all of opinion, that the Seaman’s Aid Society of the city of Boston, or rather their treasurer, in trust for them, is entitled to take the legacies in question. That society is clearly and distinctly designated, by its name and the description of its place of existence and operation. Indeed, it was the society, as appears too by the extrinsic evidence, intended and designated by him, at the time of making his will, and directed by him to be inserted; though there is no doubt that he was induced so to insert it by the incorrect information inadvertently given him at the time. The Seaman’s Friend Society, either of New York or Boston, cannot take, because the name and description are not those by which they have ever acted or been known or designated; and because the Seaman’s Aid Society is the one precisely named and described in the will. Had there been but one charitable society established for the relief and benefit of seamen, and that one the Seaman’s Friend Society, the evidence to be derived from the facts and circumstances, combined with a name very near the one mentioned in the will, and a description indicating the purposes to which the gift was devoted, in the absence of any other claim on the part of any similar society, would have been very strong, without direct proof of intention, to show that the Seaman’s Friend Society was intended; and if so, they would be entitled to take the legacy by the established rules of law.

I. intended to notice more particularly the cases cited for the Seaman’s Friend Society, but most of them have already been alluded to.

The case of Powell v. Biddle, 2 Dall. 70, is certainly strong for supporting the intent, proved by extrinsic evidence, against the claim of a person precisely named and described It was a case decided by the Philadelphia court of common pleas, many years ago, and seems to us contrary to the decisions, and cannot be considered as of high authority. Careless v. Careless, 1 Meriv. 384, is a plain case of latent ambiguity. It was a gift to a nephew Robert, son of the testator’s brother Joseph. The testator had two nephews, but neither' the son of Joseph. The name was equally applicable to both; the description equally inapplicable to either; and therefore extrinsic evidence of intention was rightly received, to remove the ambiguity.

The present is not a case of latent ambiguity, for the reasons already stated. On the face of the will all is pldin and clear. When the will comes to be applied, there are found to be two societies; one rightly named and described, the other not. There is then no ambiguity as to xthe society intended by the will. It is the offer of proof of intent aliunde which creates the doubt, and this is clearly inadmissible, under the rule applicable to such a case.

For the same reason, there is no ground to contend that this bequest is void for uncertainty. There is no uncertainty in the terms of the will, or of its application to the society named and described. It is the extrinsic evidence, which is offered, in order to create a doubt of the testator’s intent, and to prove that his intent was not expressed by his will. This creates no uncertainty which can render the bequest void. The court are therefore all of opinion, that the treasurer of the Seaman’s Aid Society is entitled to a decree.