Winslow v. Cummings

Dewey, J. It is not denied, that the testator really intended to give a legacy of one thousand dollars to “ The Boston Young Men’s Marine Bible Society.” The question arises, however, whether that purpose has been indicated in such a manner, that the court can give effect to it. 1. Is the name of the society, as found in the will, such as sufficiently to designate the society formerly known as “ The Boston Young Men’s Marine Bible Society”? The legatees in question are described in the will as “ The Marine Bible Society.” The misdescription is a slight one. There is no other society claiming to be the society intended under this description ; and there are various facts introduced in the answer of Mt. Phillips, and admitted to be truly stated, tend [363] ing to identify this society as the one designated by the testator to receive this legacy. If a testator errs in the name of the legatee, but sufficiently identifies the person or corporation, such error does not defeat the legacy. Swinburne on Wills, Part 7, Sect. 5. Where legatees are mentioned in a will by names which they never in point of fact had, yet they will take upon its being proved that the testator intended them. Benson v. Whittam, 2 Simons, 493. A legacy given to the “ Boys’ Asylum and Farm School ” was held a good legacy to the “ Boston Asylum and Farm School for Indigent Boys.” Minot v. Boston Asylum, &c., 7 Met. 416. The authorities, upon this subject, are numerous, and will be found very fully cited in the case of Tucker v. Seaman’s Aid Society, 7 Met. 188. No difficulty, therefore, arises from the misdescription of the name of the legatees, in the present case. 2. It is objected, that no such society as the Boston Young Men’s Marine Bible Society existed at the time of making the will, and it is said to be an insuperable objection to giving effect to this legacy, that this society, although it had previously existed under the form of a voluntary association, had failed to continue its annual meetings and organization, by the choice of officers down to the period of the making of this will. If, by this objection, it is intended to suggest, that there was no association in existence competent in law to take a legacy, the objection would equally have existed, if the organization of the society had been kept up, and it had continued to the present day to hold meetings, and to be actively engaged in the work of distributing bibles; inasmuch as it was at all times an unincorporated society. The real ground of objection is not, therefore, that this legacy must fail by reason of a want of capacity in the society to take a bequest, but from the want of any certain, clear and definite description of a person or association, to indicate the legatee of the charity, and the objects to which the legacy is to be applied. As to the want of capacity to take a legacy, by reason of having no legal existence as a corporation, that [364] can be readily supplied by the appointment of a trustee ; if the object of the legacy, and the particular charitable use to which the testator appropriated it, can be ascertained. It seems to us, that these may be ascertained, and that although this society had ceased to continue its regular organization, yet its previous existence, its well defined objects of charity, and mode of distribution of its funds, may be resorted to, in order to determine the purpose of this legacy, and what disposition of it will effectuate the intention of the testator. This society had a written constitution, in which the purpose of its organization was defined to be, “ to circulate bibles, among destitute seamen.” This object is a definite one, and the purpose of the testator may be certainly and easily carried into effect by a trustee appointed by the court. Nothing more is necessary to be done in order to give effect to the legacy, than would be required if the society had fully re tained its organization; it being an unincorporated society. The court, in such cases, appoint a trustee, who is to apply the avails of the legacy to the objects and in the manner that the society designated dispensed its charity. So here the trustee to be appointed will apply the avails of this legacy to the same objects, and as near as may be in the usual manner adopted and practised by the Boston Young Men’s Marine Bible Society. We may thus give effect to the legacy, as a charity to be applied in the manner indicated by the constitution and by-laws of this society, as it existed when known to the testator, and as he supposed the society to be at the time of executing his will. The trusts are therefore well described by such reference to a society, which had existed under a written constitution, clearly stating the purposes of its organization and the objects of its charity. The objection, therefore, is not well founded, that the legacy is no' given to a well defined charity. As authorities for the positions thus stated, it is only necessary to refer to a few cases, The general principle, that this court will sustain a legacy to . an unincorporated society, and appoint a trustee to carry into effect the general purpose of the testator, is settled by the [365] cases of Burbank v. Whitney, 24 Pick. 146; Bartlett v. Nye, 4 Met, 378 ; Washburn v. Sewall, 9 Met. 280. In the case last cited, it was said: “ In case of charitable gifts, it is no objection to their validity, that no person is named, capable of taking the legal interest. If the object can be ascertained, the want of a trustee will be supplied by appointment by a court of equity.” In Story’s Commentaries on Equity, (vol. ii.,) § 1166, he says, in case of a legacy given to trustees to distribute in charity, and they all die in the lifetime of the testator, yet it will be enforced in equity. In § 1169, it is said, “If the bequest be for charity, it matters not how uncertain the persons or objects may be, or whether the persons who are to take are in esse or not, for in all these and the like cases, the court will sustain the legacy, and give it effect, according to its own principles.” We perceive, therefore, no difficulty in giving effect to this legacy, and in carrying out substantially the original purpose of the testator. It was urged upon us, by the counsel for the other legatees, that the court ought not to lend their, aid, as a court of equity, to enforce this charity, inasmuch as the entire estate had proved insufficient to pay .all the other legacies given in the will; and that it was more suitable, to appropriate the sum now the subject of controversy to make up the deficiency of the other legacies, than to apply it to an object which will require the appointment of a trustee, before it can take effect. We do not think this ground can avail. If we find the legacy to the Marine Bible Society to be so given, as to authorize us to direct its payment by the executor, then it stands upon the same footing with the other legacies, especially all those given to unincorporated societies. Its peculiar object will not be fully obtained by giving it to the other charitable societies named as legatees. If distributed as a lapsed legacy, it must be divided pro rata not only among the charitable societies which are legatees, but also among the other legatees, who have personal legacies given them for their own use. [366] The result is, therefore, that this legacy is to be taken to be a legacy to the Boston Young Men’s Marine Bible'Society; and the court appoint George W. Phillips, the former president of the society, a trustee, to receive and dispose of the legacy; he appropriating the avails of the same to the purchase of bibles, to be distributed among destitute seamen, and conforming, as far as may be, in the distribution thereof, to the constitution and by-laws of said society, as it formerly existed.