Banks v. Phelan

Edwards, J. The first question which arises upon the construction of the will is, whether the legacy of $6000 given to Mrs. Hawn and her heirs, lapsed by her death before the decease of the testatrix. This question was argued before the former vice chancellor of the first circuit, upon a demurrer to a bill filed by the heirs of Mrs. Hawn, against the complainants in this suit, and it was held by him, that the language of the will showed that it was the intention of the testatrix that the legacy should go to the heirs of Mrs. Hawn in case she died before the testatrix, and he made a decree accordingly. That decree has never been appealed from. The question here arises between different parties ; but, as no objection is made by the residuary legatees to the construction given by the vice chancellor, and as the residuary legatees are, according to the view which I have taken of this case, the only persons interested in avoiding the legacy, I shall assume the construction of the vice chancellor to be correct. The next question which was raised on the argument was as to the legacy to Julia O’Brien. The will gives her $100 provided she shall be in the service of the testatrix at the time of her decease. Whether Mrs. O’Brien was in the service of the testatrix at that time, is a fact in reference to which the executors are bound to satisfy themselves, and to ascertain which, they do not require the assistance of this court. The next clause of the will which was considered questionable, is that which gives to Margaret, Alice and Betsey Farrell, and the survivor of them, the interest of $1000, to be paid so long as they, or either of them, shall live. This provision suspends the power of alienation for a longer period than two lives in being at the death of the testatrix, and is void. (1 R. S. 773, § 1. Gott v. Cook, 7 Paige, 821, 840.) The bequest contained in the next clause of the will, of the principal sum of $1000, upon the death of the last survivor of [89] the three legatees, according to the rules laid down in the case of Coster v. Lorillard, (14 Wend. 265,311,) is also void. (See 1 R. S. 773, §§ 1, 2. Id. 723, §§ 14, 15.) The nineteenth clause of the will gives the sum of $3000 to the Roman Catholic Church of Petersburg, in the state of Virginia. It is contended that this bequest is void on the ground that there is no such corporation or association competent to take it. The proof shows that there was, at the time of the execution of the will, and now is, a religious society, professing the Roman Catholic faith, and known as the Roman Catholic Church of Petersburg, in the state of Virginia, and that there is, and has been but one society, or association, answering to that description. There is then, no doubt or uncertainty as to the legatee to whom the description was intended to apply. It appears, however, that this is an unincorporated institution, and it is contended that, for that reason, the legacy is void. The legality of bequests for pious and charitable uses, though for the benefit of unincorporated associations, is so well established in this state, that it is barely necessary to refer to the authorities. (Potter v. Chapin, 6 Paige, 639, 649. King v. Woodhull, 3 Edw. Ch. Rep. 79. Wright v. Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 202. Hornbeck v. American Bible Society, 2 Sandf. Ch. Rep. 133.) In this case, however, the bill does not create a trust. It gives the legacy directly to the objects of the bounty of the testatrix. In the case of King v. Woodhull, above cited, there was a similar bequest, and, although it was not made to a trustee, or to any person, or body of persons known to the law, yet it was held that it was such a charity as a court of equity, by virtue of its general powers, could protect and uphold, and if necessary, could assist to administer. The bequest in question is of a highly meritorious character, the objects of it are clearly ascertained, and this court acting in the spirit which has dictated the decisions made in this state in reference to public charities, should uphold it, and if necessary, as far as in its power, aid in its application. The next clause of the will which was held to be objection [90] able upon the argument, is that which gives the sum of $2000 to the Right Reverend Bishop England of South Carolina, in trust for the ladies of the Ursuline order, residing in Charleston, in the state of South Carolina. It was contended that there was no class or association of persons, to which this description applied. It appears by the testimony, that at the time when the will was executed, there was an institution in the city of Charleston, South Carolina, which had been incorporated by the name of “ The Ladies’ Ursuline Community of the city of Charlestonthat it was founded by Bishop England, and is still in existence ; and that it was, and now is, known and spoken of invariably as “ The Ladies of the Ursuline Convent,” or “ orderand that there has not been, and is not, any similar society, or institution in the state of South Carolina. These circumstances render it certain beyond a question, who was intended by the description contained in the will. It is a well settled rule in equity, that upon the principle of explaining a latent ambiguity, if it can be ascertained who is the person intended by the testator, a legacy will not be permitted to fail on account of a defective description of the legatee. (Parsons v. Parsons, 1 Ves. jun. 266, Sumner’s ed. and authorities cited in note. Hornbeck v. American Bible Society, 2 Sandf. Ch. Rep. 133.) The bequest is undoubtedly valid. But, inasmuch as the trustee mentioned in the will is dead, it will be necessary for the court to appoint some suitable person to supply his place. It may also be said in reference to the objections made to the bequests contained in the twenty-first, twenty-second, twenty-third, and twenty-fourth clauses of the will, that the proofs taken in the cause render it abundantly certain who were the persons intended to be described by the testatrix. The last question to be considered is, whether the residue arising from a failure of any of the dispositions contained in the will, should go to the next of kin, or to the residuary legatees. The general rule is well settled that a residuary legatee is entitled, not only to what remains after payment of debts and legacies, but also to the residue caused by a lapsed legacy, or [91] an illegal or invalid disposition. (2 Roper on Leg. 453. Leake v. Robinson, Merivale, 39, 21. Brown v. Higgs, 4 Vesey, 416, 417. King v. Woodhull, 3 Edw. 79.) The only exception to this rule is where the words used in the will expressly show an intention on the part of the testator, to exclude such portions of his estate as are mentioned in any of the previous clauses of the will from falling into the general residue. It was contended upon the argument that the words, “ if any there shall be after paying the preceding legacies, devises and bequests,” contained in the parenthesis of the residuary clause, bring this case within the exception to the general rule. A reference to the adjudged cases will show that similar words used in the residuary clause have not been considered sufficient to limit a residuary disposition to any particular or partial residue. [Shanley v. Baker, 4 Vesey, 732. Roberts v. Cooke, 16 Id. 451. King v. Woodhull, 3 Edw. Ch. Rep. 79.) The conclusion to which I have come is, that the residuary legatees are sufficiently described in the will, and that they are entitled to all the property of the testatrix, which remains undisposed of by any of the previous clauses of the will. A decree must be entered declaring the construction of the will according to the principles which I have stated. And a provision must also be made, in the decree, for the appointment of a suitable person, as trustee in the place of the Right Reverend Bishop England, deceased. The costs of all the parties, together with a reasonable counsel fee, to be certified by the taxing officer, must be paid out of the estate.