187 Iowa 390 | Iowa | 1919
The will of James Tiernay was admitted to probate in Plymouth County, Iowa, May 7, 1891. Something over 900 acres of land in said county was disposed of thereby, bnt this controversy relates only to the northwest quarter of the northwest quarter of Section 3, Township 92, Range 44. After disposing of all the rest of his estate, the testator, by the fifth clause of his will, authorized and directed his executors to sell the northeast quarter of the northeast, quarter of Section 3, Township 92, Range 44, Plymouth County, and expend the proceeds for masses for the benefit of himself and his deceased wife. J. J. Tiernay, who is the son of testator, was, with others, named as executors, and the former qualified as such, immediately upon the admission of the will to probate. ■ On June 15, 1915, the executor, with the authority and approval of the court, entered into the contract in writing which forms the basis of this suit, by the terms of which he agreed to sell and convey to plaintiff the northwest quarter of the northwest quarter of Section 3, Township 92, Range 44, Plymouth County, Iowa, for an agreed consideration. Before this transaction was closed, however, it was discovered for the first time that the description contained in the fifth clause of the will was the “northeast quarter (%) of the northeast quarter (*4),” instead
"Plaintiff, refusing to accept the title, later instituted this suit for the specific performance of the contract, making Katherine Boland and James Kelly, who, with the defendant James J. Tiernay, were the sole surviving heirs at law of testator, defendants. Katherine Boland and James Kelly each filed separaté answer, and also a cross-petition attacking the validity of the above provision of the will upon two grounds: ■ (a) That, as to the land in com troversy, James Tiernay died intestate; and (b) that the bequest for masses is void for uncertainty, no person being named to receive the proceeds of the sale of said property. A trial was had, resulting in a decree finding the bequest for masses invalid for uncertainty, and, since the defendants and cross-petitioners'had, in open court, consented to 'the sale, and signified their willingness to convey their respective interests in said land to plaintiff at the agreed consideration, the court decreed specific performance of the contract, as prayed. The court further found that, as to the tra-ct in question, James Tiernay died intestate, leaving as his sole heirs defendants and cross-petitioners; fixed their respective interests in said real estate; and ordered the proceeds, when paid, to be distributed among
As before stated, testator never owned the tract described in the will, by which he disposed of more than 900 acres without describing or referring to the northwest quarter of the northwest quarter of Section 3, Township 92, Range 44. That he intended the land owned by him in the northwest quarter of said section to be sold, and the proceeds expended for masses, is certain, and the will must be construed and enforced the same as though no mistake had occurred in the description of the property. The cases cited supra 'are directly in point, and decisive of this question.
The doctrine of charitable or pious trusts, as applied to bequests of this character, has not been adopted in this state; but a bequest “to the Catholic priest who may be pastor of Beaver Catholic Church * * * that masses may be said for me,” was sustained in Moran v. Moran, 104 Iowa 216, as being in the nature of a private trust, and not in contravention of the statutes of this state. The court, in the course of its opinion, said:
“It is an expenditure, directed by the testator for a service promised to him, and the fact that, when the service is to be rendered, he will not be- living, so as to be a beneficiary in this life, is a matter of no concern to the courts. His soul’s welfare in the hereafter is a matter of his personal concern, for which, when not contravening public policy, he may act as his judgment and beliefs shall direct. It is not the province of the courts to inquire as to the soundness or reasonableness of religious beliefs, but to respect all such, and the ceremonies of their observance, wherein they do not militate against the public peace and security. The provision is little different from one for the erection of a monument after his death, or the doing of
See, also, Seda v. Huble, 75 Iowa 429.
Deceased was a member of and attended St. James Catholic Church, at LeMars, Iowa. In his will he expressed solicitude for some of his grandchildren, whom he enjoined to be faithful to the creed in which they were baptized, and to perform their duties as required thereby. It may be assumed that his deceased wife was also a member of the Roman Catholic Church. The purpose of the testator was to make suitable provision for pr&yers for the repose of his own soul and the soul of his deceased wife. His desire and intention are clearly'expressed in the will, and the only ground upon which its invalidity is urged is that neither parish nor priest is designated as beneficiary. The bequest was not intended primarily for the benefit of any particular parish or priest, but for the purpose above indicated. The faith and doctrine of the Roman Catholic Church in relation to prayers for the souls of deceased members thereof is universal, and the same in all parishes. Masses'may, therefore, be as well offered in one church and by one priest as another. The executor was charged with the duty of carrying out this provision of the will, and the court had full power and jurisdiction to compel him to do so. The only discretion confided to the executor was in the matter of selecting the church and one or more priests to perform the office of saying masses. Had testator desired any particular parish or priest to receive the money or to offer prayers, he would doubtless have made the selection in his will. His purpose and intention were not rendered uncertain or indefinite by the failure to do this, and we see no reason why the bequest should fail because of uncertainty. Similar bequests were sustained in Matter of
The provision of the will construed by the court in Moran v. Moran, supra, and held invalid, was as follows:
“To be divided among the Sisters of Charity, by William Toomey, William Moran, and Eev. H. Y. Malone, $500.”
The ground upon which the court held the sanie invalid was that, as sisters of charity are general throughout the state and country, no one could tell from the bequest among whom the division should be made; but in the case at bar, the devise was to the executors, to be expended for masses, which could be said by any one or more Catholic priests whom the executors might select for that purpose. The gift in the Moran case was for the benefit of the sisters of charity, but the particular persons to be benefited were not designated; whereas, in the case at bar, the bequest is not for the benefit of any church or priest to whom the same might be paid, but for the benefit of testator and his deceased wife. Therefore, even conceding that the holding of the court with reference to the bequest to the sisters of charity was right, it is not in conflict with the conclusion reached herein. It is unnecessary to review the authorities cited in the briefs of counsel for appellee, as they are without controlling importance.
III. Some claim is made in argument that the bequest in question failed because of the long delay in selling the land, and cannot now be carried out. We are cited to no authority to sustain this claim. The land has, of course, greatly increased in value, but we fail to see wherein this invalidates this provision of the will. Cross-petitioners had at least the common interest of kindred, in seeing that the wishes of deceased, as expressed in his will, were respected and carried out by the executor. Dereliction of the executor in the performance of his duty can afford no excuse