131 Ill. 338 | Ill. | 1890
delivered the opinion of the Court:
It would be impossible to consider all the questions raised on this record, much less to notice all the points made in the various arguments filed, within the reasonable limit of an opinion. Many of them, in the view we take of the case, are of no importance. We shall give attention only to those which we regard as controlling questions in the case. The first of these is, does the will of Miss Smith dispose of all of the property, real and personal, owned by her at the time of her death, or did she, as to a part of that property, die intestate.
By the death of Mrs. Turner after the execution of the will, testatrix inherited from her real estate amounting in value to about $17,000. By the pre-decease of Mrs. Turner, the $15,000 legacy bequeathed to her lapsed. Between the date of the execution of the will and the decease of Miss Smith certain shares of stock in the Chicago City Railway Company, owned by her, advanced in value about $30,000. As to this after-acquired real estate, the lapsed legacy, and increased value of railway stock, the heirs contend Miss Smith died intestate, and on the theory that the condition named in the .devise to the Hahnemann Hospital is a limitation upon the amount which it and each of the other residuary legatees can take, they insist that in no event could either of said six residuary devisees take more than $2500, and that whatever should remain after the payment of such sums must be treated as intestate estate, and descend to them, as heirs.
The rule for determining when after-acquired real estate passes by will, under our statute., is well enough defined by our own decisions, and therefore reference to those of other. States is unnecessary. In every case where that question arises the intention of the testator must be sought after, and when ascertained will control. (Willis et al. v. Watson et al. 4 Scam. 64; Peters et al. v. Spellman, 18 Ill. 370; Williams v. Johnson et al. 112 id. 61.) If no intention to dispose of such estate appears from the will, it will not pass. But such intention is sufficiently shown by the language, “I bequeath all my property, real and personal, wheresoever the same may be, to my beloved wife, Hannah P. Peters,” (Peters et al. v. Spellman, supra,) or, “I give and bequeath the care, profits and benefit of my whole estate, real and personal, so long as she remains my widow,” etc. (Willis et al. v. Watson, supra. See, also, Decker v. Decker et al. 121 Ill. 358.) It was not intended by this last decision to change or modify the rule announced in the former decisions which are there cited with approval.
That Phebe L. Smith intended to dispose of all the property owned by her at the time of her death, by this will, is most clearly shown by its various provisions. In every clause of that instrument in which a manifestation of her intention in that regard would be sought for, there is a studied purpose to leave nothing undisposed of. In no single instance does she speak of property as it then existed, but always with reference to its condition at the time of her death. By the fifteenth clause she expressly says: “I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my executors.” By the sixteenth clause she gives her executors power to manage her estate, to sell all or any part of' it, and "to demise and let all and any portion or portions of the realty belonging to my estate, to improve all or any part of my estate,” intending, as she expressly says, “to confer upon my executors all such powers as may be needful for the full ancl convenient execution of my will and for the easy management of my estate.” This is not the language of a scrivener or an attorney employed to draft her will, but written with her own hand. The presumption is that she intended her will to be a final disposition of her entire estate. (Higgins v. Dwen, 100 Ill. 554; Taubenhan et al. v. Dunz, 125 id. 530.) This rule, says Bedfield, “is founded upon the presumption that every man who sits down deliberately to make his will does not intend to leave any portion of his property in such a condition as not to pass by the will. The idea of any one deliberately purposing to die testate as to a portion of his estate, and intestate as to another portion, is so unusual in the history of testamentary disposition as to justify almost' any construction to escape from it.” (2 Bedfield on Wills, 235.) To the same effect is 2 Jarman on Wills, and Higgins v. Dwen, 100 Ill. 554. But here there is no occasion to indulge in or resort to presumption. The intention is expressed in unmistakable language.
But it is insisted, that notwithstanding the manifestation of such intention by the will itself, the fact that the after-acquired real estate came to testatrix from her deceased sister, Mrs. Turner, by inheritance, who, by the said fifteenth clause, is given the income of all the residue of the estate during her life, disproves such intention. The argument in support of this theory is based on the proposition that before Miss Smith could have intended to dispose of such real estate by will, she^ must have foreseen the death of her sister, and known that she would inherit it from her, “and then deliberately express her last wish, in writing, that Mrs. Turner, though dead, should enjoy the income of this real estate for life.” This, it is said, would be absurd, and no one, we presume, will question the correctness of the conclusion, if the premise is correct. The fallacy of the proposition lies in the'assumption that after-acquired real estate can only be disposed of by will when the testator has manifested an intention to that effect as to the particular real estate in question,—that to pass after-acquired real estate by will, the will must be made in anticipation of obtaining such real estate. The question is not, what did testatrix intend as to real estate which she might inherit from her sister, or purchase from a stranger, or obtain by will, but what did she intend as to her entire estate at death, from whatever source obtained. If it appears from the will that she intended all to pass by the will, then after-acquired real estate is conveyed. It might with equal propriety be said that it is absurd to suppose a person ever intends to dispose of property by will which he neither owns nor expects to own; and yet the manifestation of such an intention is perfectly rational, as expressive of a desire that no part of the estate shall be left intestate. It is clear enough that Miss Smith did not, at the time she made her will, have a specific intention to dispose of property which she might thereafter inherit from her sister, because it was impossible at that time for her to know that she would obtain property in that way; but she manifestly did intend that “all the rest, residue and remainder” of her estate, “both real and personal,” owned by her at the time of her death, no matter how or from what source obtained, should pass to" her executors, because she so expressly says, and that is all that is necessary, under our statute, to pass .after-acquired real estate.
The case of Harrison et al. v. Allen, 3 Call, 289, cited by •counsel as sustaining their contention, is clearly distinguishable from this case, and even if we were disposed to accept its reasoning as correct, it could have no controlling influence here. There the will gave all the estate of the testator to his two sons. One of the sons died before the father, leaving certain real estate, which the father inherited. It was said in that case, the testator could not have intended to devise to his son lands which he was to acquire from him by descent. The case here is very different. Miss Smith had two purposes in her mind when she drew the fifteenth clause of her will. One was, to provide a legacy for her sister during her life; and the other, to preserve the principal of her residuary estate to be finally disposed of for the benevolent purposes named. There is no authority in this record for the statement of counsel that “the chief object of this provision was to furnish an income to Mrs. Turner for life.” Mrs. Turner did not need such provision. The bequest to her for life was rather an exhibition of sisterly affection than a- desire to provide for her. At least, there is no reason for saying that the final disposition of her property by the fifteenth clause was not quite as controlling in the mind of testatrix as the bequest of its income. We entertain no doubt that, under the law of this State, all after-acquired real estate of testatrix passed to and became vested in her executors under the provisions of her will.
There is still less ground for the contention that all of the personal estate did not so pass. It is not denied that the general rule is that all personalty owned by the testatrix at the time of her death would pass under the residuary clause of this will. It is contended, however, that the intention of testatrix being clearly shown to the contrary, the lapsed legacy and increased value of railway stock will not pass. No such intention is shown. On the contrary, we think, for reasons already stated, the intention was in exact accord with the general rule of law. There is no sufficient reason for saying that the fourteenth clause does not apply to the lapsed legacy. As well might it be said that the railway stock itself did not pass, as that its increased value does not..
Nor do we think the condition upon which the devise to the Hahnemann Hospital is made in any way tends to show that testatrix intended to leave a part of her estate intestate. To-say that when she wrote that condition she had in her mind a particular amount of money which the hospital should receive, and that that sum should be a limit to the amount which all other residuary devisees should receive, scarcely seems reasonable, in the light of the preceding language,—“and after my death to divide such residuary estate equally between the following corporations, associations and societies.” There is no evidence in this record from which it can be determined what it would cost to endow a bed in that hospital. There is perhaps evidence from which one may conjecture as to the cost; but when counsel say $2500 would be sufficient to endow the bed and erect the mural brass tablet, they might, with equal plausibility, have said $1500 or $3000, for there is not a particle of proof as to the actual, or even probable, cost of the tablet. There is no proof whatever that Miss Smith had the slightest information as to the cost of endowing a bed or erecting a tablet in said hospital. We can not, therefore, say that she had in mind when she wrote the condition to this legacy, a sum other than that expressly named,—one-sixth of her residuary estate.
The conclusion is irresistible, from an impartial examination of this will, in the light of all the attendant and surrounding circumstances, that testatrix intended to dispose of all the property of which she might die seized, and we think it must be conceded that if Benjamin F. Smith and George O. Mead take from her estate by inheritance, they must do so, not because she intended they should, but because she has so far failed to name or describe those to whom she desired to give the residuum of her estate, that effect can not be given to her desire in that regard.
It will therefore become necessary to next determine whether or not the claimants, “The Illinois Training School for Nurses,”" “The Presbyterian Board of Belief for Disabled Ministers and the Widows and Orphans of Deceased Ministers,” “The Board of Trustees of the Hahnemann Medical College,” and “The Woman’s Union Missionary Society of America for Heathen Lands, ” have, by competent evidence, shown that they were intended by the names and descriptions, “The Chicago Training School for Nurses,” “The Fund for Disabled Ministers of the Presbyterian Church,” “The Hahnemann Hospital at Chicago, Illinois,” and “The Woman’s Union Mission (of Chicago).”
It is well settled by all the authorities, that a mistake in the name or description of a legatee or devisee, whether an individual or corporation, will never render a bequest void if the name and description used in the will, as applied to the facts and circumstances proved, will identify such person or corporation from all others. It is equally well settled, that whenever parol evidence becomes necessary to remove such uncertainty, “a court may inquire into every material fact relating to the person who claims under a will, to the property claimed as the subject of disposition, to the circumstances of the testator and his family and affairs, for the purpose of enabling the court to identify the person intended by the testator.” (Fifth Proposition applicable to the exposition of wills, by Wigram on Wills, p. 56.) The law is not, says this author, so unreasonable as to deny to the reader of all instruments the same light which the writer enjoyed. (Ibid. 161.) In citing eases illustrating his Fifth Proposition, above quoted from, he says “they might be multiplied without end, ” and adds, “they appear to justify the conclusion that every claimant under a will has a right to require that a court of construction, in the execution of its office, shall, by means of extrinsic evidence, place itself in the situation of the testator the meaning of whose language it is called upon to declare.”
Under this rule, it was unquestionably competent for these various claimants to prove their corporate existence, and the objects and purposes for which they were organized; the knowledge, if any, which testatrix had of them, and her feelings toward and relations with them; the name or names by which she or others were accustomed to designate them; that no other corporations, associations or societies corresponding to the name or description given in the will existed at the time it was executed; her family, church and social relations,—in short, every' fact and circumstance surrounding her and these claimants, which would aid the court in reaching a conclusion as to her motives and purposes in using the names or descriptions in question. If such evidence makes it clear that these claimants were intended by testatrix to be made the objects of her bounty, then it must be held that she has expressed her intention with sufficient certainty. There is no other criterion of legal certainty in the interpretation of wills.
The undisputed evidence in this record applicable to the several corporations claiming under this will, the competency of which, under the foregoing rule, can not be challenged, shows:
First—As to the Illinois Training School for Nurses, that it is a corporation duly organized under the laws of this State, September 15, 1880, its object being to train nurses for the sick and wounded; that since its organization it has maintained such a school in the city of • Chicago. Also, that this corporation was frequently called by the name “The Chicago 'Training School for Nurses.” As early as 1881 testatrix contributed $100 to it, and frequently manifested her interest in its success. At the execution of this will there was no other school for nurses in Illinois.
Second—As to the Presbyterian Board of Belief for Disabled Ministers and the Widows and Orphans of Deceased Ministers, that it was organized as a corporation under the laws of Pennsylvania, in 1876, its purpose being to hold real and personal estate given for the relief of disabled ministers and the widows .arid orphans of deceased ministers of the Presbyterian church. Testatrix became a member of the Presbyterian church in the ■city of Chicago many years prior to the execution of her will, being in the later years of her life a member of the Fourth Presbyterian Church of that city. From 1874 she more frequently attended Prof. Swing’s church, but continued her membership in the Fourth church, attending its services more or less frequently until a short time prior to her death. She disposed of her pew in that church by this will. Prior to 1870 there existed two branches of the Presbyterian church, known as the old school and the new school. Each of these had established a fund for their disabled ministers and the widows and orphans of deceased ministers, which was administered by committees appointed by the general assembly of the Presbyterian church. In 1870 these two schools formed a union, and thereafter became “The Presbyterian Church in the United States of America,” and this is commonly understood to be meant, especially in the Northern States, by the name Presbyterian, church. After this union the said fund continued to be raised by annual contributions, and collections were frequently taken up in the said Fourth Presbyterian Church in Chicago for the-benefit of that fund. After the organization by the claimant, corporation, this fund ceased to be controlled by committees, and passed into the hands of the claimant corporation, where' it has ever since been administered, and it is shown to be the only corporation, association or society of “the Presbyterian, church, for the relief of disabled ministers.” It is also clearly established by the testimony that testatrix knew of this fund, its object and purposes, and looked upon it with approval.
Third,—As to the. Board „of Trustees of the Hahnemann Medical College, that it was organized as a corporation under special charter granted by the legislature of this State, February 14,1855, its object being, among other things, to teach, the theory and practice of homeopathic medicine. It was-authorized by its charter to add dispensary and hospital departments. In 1870, J. T. Scammon founded a hospital in the city of Chicago, of which the faculty of this medical college took charge in 1871. In 1872 Mr. Scammon donated the hospital property to claimant, and at his request the name was changed, from “Scammon Hospital” to “Hahnemann Hospital.” The college building fronts on Cottage Grove avenue, in the city of Chicago, and the hospital buildings and grounds are directly in the rear of it, on the opposite side of the avenue. At a. meeting of the board of trustees of the college, in May, 1873, this hospital was formally turned over by its managers to and accepted by claimant, and it has ever since been known ás the“Hahnemann Hospital.” No other hospital in Chicago bears, the name of “Hahnemann Hospital” or “Hahnemann Hospital at Chicago, Illinois,” nor is there any corporation, association or society in the city of Chicago with which the word “Hahnemaim” is connected. Testatrix was a strong believer in this school of medicine. She frequently visited this institution, carrying flowers to its patients. She was an intimate friend and related by marriage with one of the trustees of claimant, and constantly visited his family. There can be no question that she knew that this hospital was a part of and under the control of the claimant corporation.
Fourth—As to the claim of the Woman’s Union Missionary Society, it is shown that this corporation was duly organized under the laws of the State of New York, February 1, 1861, its home office being located in the city of New York. About 1866 testatrix and other ladies in Chicago each pledged themselves to raise the sum of $20 per year to be sent to this society for missionary purposes, and she continued to send it that sum every year until in 1870, when, with lady friends in Chicago, a branch society was organized, and named “ The Chicago Branch of the Woman’s Union Missionary Society of America for Heathen Lands,” and testatrix became a member of its hoard of management, and continued to act in that capacity until she died. Each year she sent through this branch, to the parent society in New York, money and various articles to he used by it in its missionary work. She also sent directly to said parent society, boxes containing articles.to be sent forward to heathen lands, with money to pay the expense of shipment. She was a regular attendant upon the meetings of the branch society, and always visited the rooms of the home office when in the city of New York, which was generally once each year. The corporation was seldom, if ever, spoken of by its full corporate name. In Chicago it was usually called “The Woman’s Union Missionary Society.” Members of the branch •society, in conversation, frequently called it by other names, but it was known in its business meetings and among all its members as “The Woman’s Union Missionary Society.” In New York, Miss S. D. Doremus, corresponding secretary of the corporation, swears: “The society is usually designated as ‘The Woman’s Union Mission; ’ it is often called ‘The Union Mission.’ ” She also says, Miss Smith always spoke of the society as “The Woman’s Union Mission.” “It is the name almost every one called it.” Miss Emily 0. Wheeler, residing in New York City, testified: “I knew Phebe L. Smith all her life. Our relations were almost as sisters. She lived in our family for years.” Miss Wheeler was present at the making of the will in question, and one of the witnesses thereto. She says Miss Smith called the society with which Mrs. Avery was connected, “The Woman’s Union Mission of Chicago.” She also says she knows of Miss Smith sending contributions to Mrs. Avery, of Chicago, for missionary work. “She sent the contributions, as I understood her, to Mrs. Avery for work among the heathens. It was for the ‘Woman’s Union Mission “of Chicago,’ as she called it.” She further testified that Miss Smith frequently contributed articles of personal property to-the society here in New York, for the heathen, the society of Mrs. Doremus. She made picture books and fancy articles for, and was constantly- sending them to, the society. “In conversation with me, she connected Mrs. Avery with the Chicago society, and Miss Doremus with the New York society.”" Dora B. Bobinson says: “In speaking of this society, I think seventy-five per cent of persons use an abbreviated .name. * * * I never speak of it in any other way than ‘The-Woman’s Union Missionary Society,’ or “The Woman’s Union Mission.’ ” On cross-examination she says: “I said seventy-five per cent of -the people connected with our society, and with whom I came in contact, spoke of it as ‘The Woman’s Union. Mission.’ I base my statement simply -because the name was too long. Miss Doremus used to speak of it in that way, and she gave it its title.” Miss Smith had been in New York, three or four months prior to making her will. Miss Doremustestifies that she generally came to New York once a year. “T have talked with her often about our society matters. She-called constantly at our mission rooms, 411 Bible House, and at my house.”
No attempt was made to contradict or impeach any of this evidence by other witnesses. It is contended, however, that by cross-examination that part of the evidence of the witnesses which tends to prove that the corporation was called in New York “The Woman’s Union Mission,” is completely overcome and destroyed. We do not think so. Throughout the entire case the heirs-at-law have not attempted to show that Miss Smith did not mean these claimants, or that she was so connected or associated with other corporations, associations or societies as that she might have intended them, but they have sought only to defeat these four bequests by contending that the will itself, and competent extrinsic evidence, leave it wholly uncertain as to what societies were intended.
An almost infinite number of cases involving the validity of bequests where the legatee or devisee was inaccurately named or described in the will, can be found. They have generally arisen out of conflicting claims to the same bequest by two or more individuals or corporations; but we also find many cases-in which, as here, there is but one claimant. These cases can. not be wholly reconciled, so as to obtain from them a general rule by which it can be determined just when such bequests are to be sustained. Each case must be determined upon its own peculiar facts,—the object in every case being, if possible, consistent with the rules of evidence, to ascertain and give effect to the intention of the testator; and an examination of the authorities will clearly show that the tendency of all the decisions is in the direction of liberality in permitting the introduction of extrinsic evidence for that purpose. Vice-Chancellor Wigram, in his work on this branch of the law of wills, says: “Latterly, very few wills are held to be wholly void for uncertainty.”
In Tucker et al. v. Seaman’s Aid Society et al. 7 Metc. 188, Chief Justice Shaw says: “The principle established by the cases is, that the estate must pass by the will. * * * 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.” He again says, in Minot et al. v. Boston Asylum, etc. 7 Metc. 416 : “Where the name and description in a legacy, when applied to the facts, lead to a reasonable belief that they apply to some one person, and there is no other person to whom they can with any probability apply, then much slighter evidence will be sufficient to prove that that person was intended by the designation.” So in the case of Thomas v. Stevens et al. Exrs. 4 Johns. Ch. 607, although the bequest was to Cornelia Thompson, it was given to Caroline Thomas, a person of entirely different name, no person by the first name appearing to claim it, although the evidence of intention was but slight, consisting chiefly in proof of the fact that the claimant was a favorite with testatrix.
In Gilmore v. Stone, 120 U. S. 586, the language of the bequest was, “to be equally divided between the board of foreign and the board of home missions.” The claim was by the “Board of Foreign Missions of the Presbyterian Church in the United States of America” and the “Board of Home Missions of the Presbyterian Church in the United States of America.” Both corporations were created under the laws of New York; Testator was a resident of Menard county, this State. An attempt was made by his heirs to defeat the bequest. It was agreed in the case that other religious denominations, like the Presbyterian, had boards of home and foreign missions in the United States of America, and therefore it was contended that the bequest was void for uncertainty. It was shown by extrinsic evidence that the testator was a member and elder in the Presbyterian Church of the United States of America; that collections were annually taken up in the congregation to which he belonged, for the various boards of that church, including the boards of foreign and home missions; that while it was announced from the pulpit that collections were taken for the “board of foreign missions” or the “board of home missions, ” without in words naming the Presbyterian church, all such collections, with the knowledge and the assent of the ■church session, of which testator was an active and zealous member, were, without exception, sent to the officers of the ■“Presbyterian Boards of Foreign and Home Missions in New York City,” and regular reports thereof made to the session; that the testator took especial interest in the.work of those boards, and uniformly contributed thereto, and that he did not, so far as his pastor or associates in the church session knew, make contributions to the societies of any other church, ■except the “Bible Society, ” which was sustained by several religious organizations. After holding this evidence competent, the court, by Harlan, Judge, proceeds to say: “Construing, then, the will with reference to the extrinsic evidence of the uniform relations of the testator to the subject of foreign and home missions, and to certain societies engaged in that kind ■of work, it is not to be doubted that in the eleventh clause he held in mind the ‘Boards of Foreign and Home Missions’ of the general religious society or organization of which he was a member and officer. The words of the will very well apply to such an object, and therefore, in so interpreting its provisions, no violence is done to the language employed by the. testator.”
In Preachers’ Aid Society v. England, 106 Ill. 125, the Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church claimed title under a deed to the “Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church.” We there said: “We are of the opinion that the deed of Phillips bearing date September 14, 1874, vested the legal title to the property in controversy in the plaintiff in error. It is said in 2 Washburn on Beal Property, (2d ed.) 588: ‘The object of names being merely to distinguish one person from another, it seems to be sufficient if this is effected, though the true name of the party be not used, or even nó name at all. The general principle of law is, id cerium est quod certum reddi potest, and a man may be described by his office or his relationship to a known person-;’ and hence it would undoubtedly have been sufficient, here, if the conveyance had been to ‘the corporation lately created for the-purpose of aiding superannuated preachers of the Illinois conference of the Methodist Episcopal church, and widows, and orphans of such preachers,’ for this would be an accurate-description of plaintiff in error, no other corporation for that purpose being shown to have been lately created. But the-deed under consideration is to ‘The Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church.’' Had it been shown that a corporation of that name existed, we would, of course, be bound to assume the conveyance was-to such corporation; but no such corporation being shown to be in existence, inasmuch as we must, from the language of the .deed, infer it was intended to convey to some society or corporation, we are driven to the conclusion that these words-were used to describe, rather than to express the accurate and full name, of the grantee; and, regarding them in this light, they clearly designate the plaintiff in error as the grantee.”'
In Tilton, Exr. v. American Bible Society, 60 N. H. 377, the bequests were to the “Bible Society,” “Foreign Mission Society,”' the “Home Mission Society” and the “Tract Society.” The-respective legacies were claimed by the New Hampshire Bible Society, the American Board of Commissioners for Foreign Missions, the New Hampshire Home Missionary Society, and the American Tract Secie-ty, (a New York corporation,) and these latter societies were held to be the legatees intended.
In Wood v. White, 32 Me. 340, the devise was to F. Wood, and George Wood secured the legacy. It appears that there were two persons in the town named James and Joseph Wood,, but the testator did not appear to have ever had any business: relations with either.
In Hinckley v. Thatcher, 139 Mass. 477, the residuary devise was “equally to the authorized agents of the home and foreign missionaries, to aid in propagating the holy religion of Jesus Christ.” Various societies laid claim to the legacy, and the court decreed in favor of the American Board of Commissioners for Foreign Missions and the Massachusetts Home. Missionary Society, “upon extrinsic evidence of facts known to the testator at the time he executed the will, the names he-was accustomed to call the missionary societies, or by which, they were usually called and known in the religious society with which he worshiped, the interest shown by him in any particular missionary society, and the contributions which he made for missionary purposes.”
In Domestic and Foreign Missionary Society’s Appeal, 30 Pa. St. 425, a devise to “the missions and schools of the Episcopal1 church about to be established at or near Port Cresson, ” was-declared to be a good charitable bequest to the Domestic and: Foreign Missionary Society of the Protestant Episcopal Church of the United States of America, a New York corporation.. See, also, Le Fevre v. Le Fevre et al. 59 N. Y. 440; Button, Exr. v. American Tract Society et al. 23 Vt. 336; McAllister v. McAllister, 46 id. 272; Newell’s Appeal, 24 Pa. St. 197; Brewster v. McCall’s Devisees, 15 Conn. 274; Goodell v. Union Association, 2 Stewart’s Eq. 32.
We have not cited these cases as being more particularly-in point than many other cases referred to by counsel representing these various claimants, in their several briefs, nor do-we wish to be understood as saying that they are not distinguishable from the case made by the several claimants in this case; but in principle they sustain the bequests involved in t.bia inquiry, and the claims of the various claimants, thereto..
The names and descriptions used in the fifteenth clause of this will, with the language preceding them, clearly show a purpose on the part of testatrix to give one-sixth of the residuum of her estate to a corporation, association or society maintaining a training school for nurses in Chicago, another sixth to a corporation, association or society maintaining a Hahnemann hospital at Chicago, Illinois, and another sixth to a corporation, association or society having charge of a fund for disabled ministers of the Presbyterian church. The evidence establishes, beyond question, that three of these claimants are corporations, and were when this will was written, one carrying on a training school for nurses in the city of •Chicago, another having and maintaining a Hahnemann hospital in said city, and the third having charge and control of a fund for the benefit of disabled ministers of the Presbyterian ■church. It also proves, beyond controversy, that at the time Miss Smith wrote her will there was no other corporation, association or society maintaining such a school or hospital in •Chicago, or having such a fund. The conclusion is therefore inevitable that she intended these claimants. When, however, io this is added the clear and convincing proof that the particular school, hospital and fund in charge of these claimants were the objects of her favor and sympathy, it becomes as morally certain that she intended that they should become the objects of her bounty as though she had succeeded in naming them with absolute accuracy.
The claim of the Woman’s Union Missionary Society is to our minds no less clearly established. It is true, the language used in the will is not so explicit, but the extrinsic proof showing the peculiar relationship of testatrix to this corporation is much clearer. To say that we may read so much of the extrinsic evidence offered by this claimant as tends to place us in the position of Miss Smith when she wrote her will, and still insist that we can not ascertain her intention to be to give a part of her estate to claimant, would be unreasonable. The words, “Woman’s Union Mission, ” as here used, are equivalent to “Woman’s Union Missionary Society. ” Taking all the language of the will applicable to the bequest in question, and giving to the word “mission” its commonly accepted meaning, it would read substantially as follows: To a corporation, association or society known as the Woman’s Union Missionary Society (of Chicago), one-sixth of the remainder of my estate. Clearly she intended to give, by this bequest, to a missionary society under the management of a woman’s union; and this corporation being the only society of that kind in this country, at least known to testatrix, and it being so fully shown that it was the peculiar object of her bounty and affection for years, and up to the very time of her death, we see no escape from the conviction that she meant the New York corporation claimant, and that by the words “of Chicago,” in parenthesis, she only indicated her desire that this, as other gifts made by her to it, should be through the Chicago branch.
We think this claim may also he sustained upon the ground that the name used in the will was one by which testatrix, and others connected with the claimant corporation, were accustomed to call it. Giving to the word “mission” the meaning “missionary society,” the evidence clearly shows that in Chicago it was so called. In New York, where the will was written, and where testatrix had been living for several months immediately prior thereto, it was often called “The Woman’s. Union Mission.” In reaching this conclusion, we have not. overlooked the cross-examination of witnesses who so testify.. The master’s report should have been sustained as to this as. well as the other claimants.
The claim of the Illinois Training School for Nurses is also-maintainable on the ground that the name used in the will— “Chicago Training School for Nurses”—-was, at the time of th& execution of the will, a name commonly applied to claimant.
In the case of the Hahnemann Medical College, under the proofs, the bequest was to the college, for the use of the hospital. (Hornbeck, Exr. v. American Bible Society, 2 Sandf. Ch. 133; Wright et al. v. Trustees of M. E. Church, 1 Hoff. Ch. 202.) “A bequest to the Old Ladies’ Home, at present near Pincon Hill, near St. Mary’s Hospital, when the proof showed no such organization, but that such an institution was a department of and under the control of a corporation known as the Sisters of Mercy, and was situated near the place indicated in the will, was held to entitle the Sisters of Mercy to the amount bequeathed for such purpose.” Gibson’s Estate, 75 Cal. 329.
From a consideration of all the evidence in this ease, we are clearly of opinion that testatrix intended to give one-sixth ■of her residuary estate to each of these claimants, and that to give effect to that intention is violative of no rule of law, and certainly of no rule of right. It therefore follows, that the “Chicago Foundlings’ Home,” “The Home for Incurables at Chicago,” “The Illinois Training School for Nurses,” “The Presbyterian Board of Belief for Disabled Ministers and the Widows and Orphans of Deceased Ministers,” “The Board of Trustees of the Hahnemann Medical College of Chicago, ” and "“The Woman’s Union Missionary Society of America for Heathen Lands,” through its Chicago branch, are entitled to the residuum of the estate of testatrix, whatever it may be.
As to the share of the Hahnemann Medical College, it must, of course, be applied to the use of the hospital department of that institution, according to the conditions of the will. It remains, however, to be determined, whether or not the court below decided correctly in decreeing that if the amount received by it should exceed the necessary cost of endowing a bed and erecting the tablet mentioned in the condition, the balance should be expended in the endowment of other beds. This part of the decree below is, of course, based upon the -doctrine of cy pres. It is contended by the heirs, that the decree in this respect is unauthorized, upon the ground that no question of that kind was in issue before the court. Upon a careful examination of the pleadings, we think the point is well made. As we have before said, there is no proof in this record as to what will be the reasonable cost of endowing a bed or erecting the tablet, and while we are clearly of opinion that any surplus which may remain after this condition in the bequest is complied with, must be used for the benefit of the hospital department of the medical college, we think the question as to how that surplus shall be used should be left until the amount thereof can be ascertained, or at least until the ■claimant shall have been heard upon that question. This matter, however, can be properly adjusted upon the remanding of the cause.
We find no error in the ruling of the court below in the matter of costs and attorneys’ fees. In Smith v. Smith, 4 Paige Ch. 271, it is said: “As a general rule, if the testator has expressed his intention so ambiguously as to create a difficulty, which makes it necessary to come into the court of chancery to give a construction to the will or to remove the difficulty, the costs of the litigation must be borne by the estate, and the general residue is the primary fund for the payment of such costs.” 3 Brown’s C. C. 27; 6 Ves. 349; 1 Sell. & Lef. 12; 3 Peere Wms. 303; Straw v. Societies, 67 Me. 493.
As to the amounts allowed by the court to the respective parties, they are so far in the discretion of the chancellor, that in the absence of proof of the abuse of that discretion we can not interfere, nor in this case are inclined to do so, more particularly in view of the fact that no more has been done by the decree of the court below than to fix the amount which the estate should pay to each of the parties, leaving the reasonableness of solicitors’ fees open to adjustment between the various solicitors and their clients.
The decree of the circuit court will be reversed, and the cause remanded, with directions to proceed in accordance with the views here expressed.
Decree reversed.