Newell's Appeal

The opinion of the Court was delivered, March 12, 1855, by Woodward, J. The fourth clause of John Hoff’s will gave to the trustees or those who hold the funds of the Theological Seminary at Princeton, state of New Jersey, “ $2500 in perpetuity, for the establishment of a scholarship.” An annual address to advocate the testator’s peculiar views of a system of -universal education is mentioned in the elaborate condition appended to the bequest; and $1000 additional is given “to be invested in con-nexion with the fund for the scholarship, the interest thereof to print the annual address.” The corporate name of the Theological Seminary at Princeton is, “Trustees of the Theological Seminary of the Presbyterian Church,” and the first question raised upon this appeal is, whether [199] that corporation can take under the designation in the will: We have no doubt of it. The auditor found that the corporation is generally known as the Theological Seminary at Princeton, and that there is no other body answering the description in the will. This is enough. And it was proper for the auditor to receive parol evidence on the point; for, though a will must be judged ex viseeribus suis, and unless there be a latent ambiguity, extrinsic evidence is not to control its construction, yet it has always been held that a defective designation of the devisee or legatee intended may be repaired by parol proof. If the person to take be not in some sort described in the devise, evidence will not be admitted to show who was intended, for that would be to make, a will by parol; but where there are words of designation, though a mistake of the name, the,ambiguity may be removed by evidence dehórs the will. This is a well settled rule in' respect to devises in general, and it is peculiarly applicable to charitable bequests made to religious corporations. The next question has reference to the condition annexed. It is characterized by counsel as uncertain, visionary, and obscure, unreasonable, tyrannous, and unconstitutional, and it is said to be impossible to give a rational meaning to the testator’s words. Without admitting or seeming to admit the justice of these criticisms, we are not to attempt the vindication of this condition, because, whatever it is, we regard it as a condition subsequent, and, as such, it cannot affect the vesting of the legacy, however it may the use of it. The testator evidently did not intend that a compliance with the requisitions he has chosen to annex to the enjoyment of his bounty should be a condition of its acquisition, but merely of its retention. The formation of “ a corresponding association to. achieve the object of this appropriation, as well as to prevent more than one address to be delivered or published annually,” was not to precede the receipt of the legacy. There is not a word in the will to warrant such an idea. Then the condition was not precedent; and if subsequent, the legacy vested in the Theological Seminary directly the testator died. What then, if the condition be uncertain, insensible, and void? The consequence is, that the legacy, already vested, becomes absolute and unconditional, for such is the effect of limitations subject to subsequent conditions that are void or impossible: Thomas v. Howell, 1 Salk. 170; Aislabie v. Rice, 3 Madd. 256. The exception to the rule is where, by the will, the property is given over upon the non-performance of the condition; 2 Atkyns 16; but even then, if the condition become impossible by the act of God, the estate is well vested: Peyton v. Burg, 2 P. W. 626. Here there was' no devise over in the event of the condition failing to be performed; and therefore, if we should adopt the [200] views of the appellants’ counsel as to the character of this condition, we should say that the legacy vested in the seminary for the ordinary purposes of a scholarship. But if the condition be possible and valid, a point we are not required to decide at present, the legacy vested subject to it, and the-seminary may be called on to perform it. The only question now before us is, whether the seminary is entitled to receive the legacy? We are of opinion she is; that she takes it by her corporate name, and for the purpose of founding a scholarship; and it will be time enough to inquire whether she is bound to perform the condition subsequent when she is sued for a forfeiture. So far as the decree below is drawn in question by the appeal of Newell and wife, it is affirmed.