Preachers' Aid Society v. Rich

The opinion of the Court was drawn up by Tenney, C. J. The case is presented on bill and answer. The statements of the former are substantially admitted by the latter. The defendant declined to deliver the bonds bequeathed by. the will, on account of a doubt which he entertained, whether the society, unincorporated at the time of the execution of the will, and the death of the testator, though having a legal existence when the bill was filed, could take the bequest, and he wished the decree of the Court for his direction in the premises. No objection can be made to the maintenance of the bill, on account of the want of proper parties thereto. In cases like the present, trustees and executors are supposed to represent all parties in interest. Story’s Eq. Plead. § 150. The society, to which the legacy was given, is not, in name, the one which was known as having an existence, before its incorporation. But there can be no doubt, from the statements in the bill, admitted in the answer, that the plaintiffs were the society intended by the testator, as the one which should be the almoner of his bequest. The principle stated [559] by Shaw, C. J., in delivering the opinion of the Court, in Tucker & als. v. Seaman’s Aid Society & als., 7 Met. 188, will well apply: — “That the evidence does not create the gift, but simply directs it. When the name or description in the will does not designate with precision any person, but, 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 any other person, the person thus shown to be intended will take.” 2. A bequest to charitable uses, to an unincorporated society, may be enforced, by virtue of the statute of 43 Eliz., c. 4, which has been regarded as a part of the common law of this State, even if it could not be made effectual without that statute. The better opinion of the most eminent jurists, in England and in this country, is, that a donation to charitable uses could be carried into effect, in chancery, without the aid of the statute of Elizabeth. Burbank v. Whitney, 24 Pick. 146, and cases therein cited. 3. It appears from the bequest itself, and is admitted in the answer, that the association at the time of the execution of the will, and the corporation since, had for its object a charitable and religious use, promotive of public good, and in no way opposed thereto. The legacy, in its general character, is similar to those which have often been before courts of equity; is one which falls within the provision of the statute of Elizabeth, and which the law will uphold. Tucker & als. v. Seaman’s Aid Society & als., before cited; Minot & al. v. Boston Farm School, &c., Ibid. 416. The Court will take care, if possible, in cases of charitable gifts, to give them effect. And, if the object can be ascertained, the want of a trustee to execute the trust will be supplied by an appointment by the Court. Kingsbury v. Gould, Ex’r, 9 Met. 280. The plaintiffs now exist as a corporation. Special Laws of 1858, c. 131. They have, therefore, a capacity to execute the trust, according to the will. It will effectuate the intention [560] of the testator that they should do so. For that purpose, they are hereby constituted trustees; and it is decreed that the executor deliver to the treasurer, or other proper officer or officers of the corporation, the bonds which are the subject of the testator’s bequest, with the legal assignment thereof. Rice, Hathaway, Appleton, Cutting, and Goodenow, J. J., concurred.