54 Colo. 510 | Colo. | 1913
delivered the opinion of the court:
The matter to be determined is, what does paragraph seven of the will of the late Andrew J, Macky mean, and what is its effect.
After making a number of specific money bequests to relatives and friends, the testator undertook, in that paragraph, to make a charitable gift for an hospital building and home for poor widows and orphans, as follows:
“7th. I further give and bequeath to and for a hospital building and a home to be built in Boulder, county of Boulder, and state of Colorado-, for the comfort of poor widows, and orphan children, while sick and unable to care for themselves, the sum of fifty thousand ($50,000) dollars. Providing the city of Boulder, by its officers, or the county commissioners and their successors in office, will support and maintain the same, otherwise the said $50,000 to revert back and the same to be divided up among the following legatees; to-wit, Lydia A. Snow, Jerome Macky, Alonzo Macky, Chauncey Macky, Celia B. Dickerson, Anna C. Walker, Mary Aldrich and Emma Aldrich, Cora Doyle, George Robbins, Elmer Robbins, Earl Harold Robbins, Lola Robbins and Monabelle Robbins in proportion as their legacies herein mentioned bears to the said ($50,000) fifty thousand dollars.”
The city of Boulder declined to accept the gift, but the Board of County Commissioners offered to do so upon the condition imposed, and asked that the individual members of the board be appointed trustees of the legacy for the purpose set forth in the bequest. In the case of Robbins v. County Commissioners, 50 Colo. 610, this court held the primary gift to charity void, for the reason that “its vesting is made to depend upon an impossible, legally unenforceable condition precedent;” whereupon the executor of the estate, joined by certain of the legatees named in that paragraph as legatees
The primary gift being out of the. way, the question is, does the gift over take effect and is it to be enforced ? It is a settled rule that the intention of the testator must govern, when such intention is made clear by the terms of the will itself. This has been repeatedly declared by our own and other courts to be the guide in all matters involving construction of wills. Courts are bound to give such construction to a will as will carry out and put into effect the plain intention of the testator.- — Bacon v. Nichols, 47 Colo. 31; 40 Cyc. 1386, and cases- cited.
• . The first gift contained in the paragraph of the will under consideration depended, as has already been determined by this court, upon a condition precedent, impossible of legal enforcement. In deciding the case of1 Robbins v. County Commissioners, supra, this court did not directly pass upon the question involved in this case, and the statement in that case as to' the nature of the condition upon which the primary gift depended does not necessarily determine the status' of the gift over. It having been adjudged that the primary gift is void, it now remains to determine the meaning and effect of the words in paragraph seven of the will following the attempted gift to the city of Boulder or to Boulder county. The condition precedent which was by this court held impossible of enforcement reads: “Providing the city of Boulder, by its officers, or the county commissioners and their successors in of
“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 home for all time to come for those who were entitled to enjoy its privi- ' leges. 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 support was not forthcoming.”
The clause in the will which provides that the county commissioners “will support and maintain the same,” means provided they shall, or do, support and maintain it. It in no sense implies that a mere willingness on the part oí the board to do so is sufficient. It requires that this support be absolutely and unconditionally provided for and furnished, else the condition is not met. And if for any reason, because the law interposed an obstacle against providing such support and
Since by the language of the will itself the intention of the testator respecting this fund is clear, and under well settled principles of law such intention must control in the disposition thereof, as the gift over contravenes no established rule of law or public policy, the various other matters, so1 ably presented by opposing counsel, upon the question of conditional limitation and kindred subjects, and the rules of law applicable thereto, need not be considered. Neither is it necessary to determine what the status of the residuary legatee would be, had both gifts been held void, as it is clear, under
