38 Conn. 342 | Conn. | 1871
This bill is brought by the executors and trus- • rtees appointed by the last will and testament of the late
Some of the questions suggested for our decision involve little or no difficulty; indeed there áre very few about which we have entertained serious doubts. On one, the gift to the Southern Aid Society, we have held varying opinions, and are scarcely able, even now, to determine it with unanimity and to our own entire satisfaction.
The testator, Mr. Bostwick, at the time .of his death and for some time previous thereto, had his domicil at New Haven. He was a widower, and left no parents, no brother or sister, no descendants of any brother or sister, and but one child, a daughter about fifteen years of age at the time of his death. The will is very carefully, though not very concisely, drawn; every probable, almost every possible, contingency which could affect the disposition oí the property made by it seems to have been anticipated, and every such contingency specifically provided for. There was evidently much painstaking on the part of the testator to dispose by his will of all and whatsoever property he might die possessed of, and to «leave nothing on which, in any possible event, our statute of distributions should operate as intestate estate. It is plainly our duty so to construe this will as to effect this purpose, if we can do so without contravening well established principles of law. And we shall give to those rules of construction which aid us in getting at the intent of the testator, and the authorities which sanction the carrying out of that intent, far more consideration than to the wisest maxims or the weightiest precedents which seem to determine, that intent by their own inherent power. The application of such maxims and precedents to last wills produces, not unfrequently, results which were never in the mind oí the testator.
It is obviously unnecessary to decide or consider any of the questions dependent upon other contingencies which have not arisen. _ We deem it proper to remark however in this connec
As to the four societies named above to whom specific pecuniary legacies amounting to $22,000 are given, no question seems to have arisen. They are not made parties to the bill, and do not appear in the case. We suppose no-objection is made to their receiving severally the sums bequeathed to them.
Of the six societies to which the residue of said trust property is given, five of them, all but the Southern Aid Society, were incorporated at and before the time of the testator’s,, death. The Southern Aid Society was not then incorporated, but became so in October, 1866. As to these five ineorpo
Three of these societies, the American Tract Society, the Board of Foreign Missions of the Presbyterian Church, and the American and Foreign Christian Union Society, were incorporated by the state of New York. The American Colonization Society was incorporated by the state of Maryland, and the Board of Domestic Missions of the Presbyterian Church, by the state of Pennsylvania. The Board of Foreign Missions of the Presbyterian Church, the American Colonization Sociciety, and the Board of Domestic Missions of the Presbyterian Church, are expressly authorized by their charters of incorporation to take by devise. No doubts are expressed that the gifts to these corporations are good and valid.
As the American and Foreign Christian Union Society was incorporated under and in pursuance of the provisions and requirements of the act of the legislature of the state of New York passed April 12,1848, and the acts amendatory thereof, it is claimed that that society is incapable of taking more than one-fourth of one-sixth of the testator’s estate. The law referred to provides that no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation, (meaning any benevolent, charitable, scientific, or missionary society,) more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-fourth. The testator left a daughter, but this devise or bequest was given to take effect only in the event of her death without issue. That event having happened, we perceive no restraint upon the power of this society to take the specified one-sixth' of the residuary estate. The object of this law, which was doubtless intended to protect parents, wives and children to a certain extent, is not in the slightest degree frustrated by giving full effect to this provision of the will. The Supreme Court of New York, having recently had this precise question before them in this very case, decided that this society was entitled to one-sixth of the residuary estate situated in New York, and the Court of Appeals affirmed that decision. "Be
•The American Tract Society and the Southern Aid Society are the only societies now remaining of the six to which the residuary estate was given, whose rights under this will remain to be considered. It is asserted that the American Tract Society can take neither real or personal property under this ~~ will. That it cannot take real, because its charter of incorporation, granted by the state of Mew York, does not confer the power of talring by devise; that it cannot take personal, because the charter provides that the net income of said society arising from real and personal estate shall not exceed the sum of $10,000 annually. This limit it is claimed has been reached and exceeded, and so the capacity of the society to take property is exhausted. This society was incorporated by a special act of the legislature of the state of New York, passed May 26,1841. The third section of its charter provides that the corporation shall possess the general powers, and be subject to the provisions, contained in title 3d of chapter 18 of the first part of the revised statutes, so far as the same are applicable and have not been repealed. The title and chapter referred to enumerate the powers of corporations, and the clause which bears directly upon this subject reads thus: “ to hold, purchase, and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” This charter was amended by the legislature of New York on the 31st of March, 1866, but as this was after the death both of the testator and of his daughter, that amendment need not be particularly con- ' sidered, as it cannot materially affect the question involved. | Now it is manifest that this corporation has express power 1 by its charter to hold, purchase and convey real and personal 1 estate, for specified purposes and to a limited amount. There is no express power to take by devise, nor is //the power so to
The state of New York has partially adopted the policy of England in regard to devises to corporations, though the English statutes, usually called the statutes of mortmain, have not been reenacted in that state. Those statutes began with Magna Charta, in 9 Henry III, and embrace a succession of„ acts down to and including 9 George II. They were intended to check the ecclesiastics of the Roman church from absorbing in perpetuity, in dead clutch, all the lands of. the kingdom, and so withdrawing them from public and feudal
We therefore entertain no doubt that the American Tract Society can take by devise in this state. As to the other objection, that having an income greater in amount than is allowed by its charter it has exhausted its power to take, it suffices to say that no such fact is found by the very competent committee whose report is on the record. A limitation on the
But supposing that this organization as a corporation has exhausted its capacity to take, has forfeited its charter, or that by its charter it never had power to take by devise, still it would under any of these circumstances be entitled to the rights and privileges of a voluntary association of individuals. The treasurer of the organization is well known, his name is given in the report of facts, he has for many years acted uninterruptedly in that capacity, and is still so acting. Now under this will we think he may. take as trustee in trust for this association, if it is unable to take as a corporation, having exhausted its capacity to take, or if as a corporation it never had capacity to t.ake by devise. Such is the clear and positive direction of this testator in the 13th article of this will.
The claims of the Southern Aid Society alone remain to be considered. It appears from the finding that this society was formed by a charitable association of individuals in September, 1853, for the purpose of diffusing gospel truth in the southern and south-western states, by the agency of ecclesiastical organizations there existing. They adopted a written constitution for their government; they had an office in New York city, held annual meetings, elected the officers required by their constitution, and the operations of the society were actively and regularly carried on from its formation in 1853, until they were interfered with by the breaking out of hostilities in the spring of 1861. On the 23d of April of that year the executive committee of the society held a meeting in New York city, at which they passed certain resolutions prefixed by a preamble. The preamble sets forth that the unfriendly
But if this association had been dissolved, and were now out of existence, dead, there would still remain this bequest and devise to be disposed of. - The gift was not to the society for their benefit at all. The society was the trustee, not the cestui que trust—the instrumentality, not the beneficiary. The objects of the testator’s bounty are still living, and will live as long as human beings require moral and religious training, and their necessities were never greater or more pressing than now. This is a charity which a court of equity is bound to uphold if practicable. The only difficulty is whether the trust is sufficiently certain and definite to be executed by the court. We look into the constitution of the Southern Aid Society, and find the purpose to be “ the diffusion of gospel truth in the southern and south-western states, to be accomplished under the direction of ecclesiastical bodies, or missionary organizations of an evangelical character, existing within said states.” It is unfortunately true that there is a wide difference between the many Christian sects and denominations of our time as to what constitutes “ gospel truth;” its teachers do not yet see eye to eye, and as we happily have no state religion, it might embarrass the court to appoint a trustee who would be called on to decide the question. Says Daggett, J., in giving the opinion of the court in Bull v. Bull, 8 Conn., 51, “ if it [the devise] can by possibility be upheld, then it never can be pronounced void for uncertainty.” After all, this is no more uncertain than our own statute of 1702 which we have quoted above; “for the maintenance of the ministry of the gospel” is one of the clauses of that statute. If this devise is void because of the uncertainty of the term “ gospel truth,” we think this provision of the statute must be void for the' same reason. We should hesitate to pronounce a decision
But we are relieved from any difficulty as to the uncertainty of this devise, by the fact found by the committee that in October, 1866, said association was duly incorporated under the name of the Southern Aid Society, and that Lucius Hopkins, since November, 1865, has been and now is treasurer of said society. There is no difficulty in paying over to him this bequest, and in conveying to him the sixth part of the residuum of this estate according to the provisions of this will. He is in effect the trustee designated by the testator.
No difficulty arises in this case on account of the descent of the fee of this estate to the heirs at law. On the death of the testator the legal title was vested in the trustees by the express terms of the will. That title was not divested by the death of the daughter, nor by any subsequent event. It is not in abeyance, a legal term not remarkable for any definite idea conveyed by it, even when aided by the phrases in gremio legis, or in nubibus, which are frequently added by way of explanation. The legal title is still in the trustees, and the money legacies payable to the four societies, amounting to $22,000, and the legacy to the Southern Aid Society, amounting to $1,000, being paid, the trustees will then transfer and convey the residuum of the estate to the six societies named in the seventh article of said will, one-sixth to each; the payments and conveyances to be made to the respective treasurers of said societies.
In arriving at this result we feel confident that we carry out the intent of the testator, and we are not aware that in doing so we have violated any established rule of law. It was long since remarked by a distinguished judge in England, that men’s deeds and wills, by which they settle their estates, are the laws that private .men are allowed to make, and they are not to be altered even by the king in his courts of law or conscience. The first clause in our statute on this subject is, “ All persons of the age of twenty-one years and of sound mind may dispose of their real estate by will.” "We must carry into full and complete effect the intention of the testa
The Superior Court is advised to pass a decree in this case in conformity with the rules here laid down.
In this opinion the other judges concurred.