Wilcox v. Attorney General

Braley, J. The testatrix in the fourth clause of her will devised and bequeathed the residue of her estate “ to Henry H. Earl... in trust, nevertheless, to carry out certain other purposes of mine mentioned to him and to Abbie C. Anthony . . . and relating to certain benevolent and charitable institutions and associations; to a clock tower and clock in memory of my sister Mary Amanda Borden; to the use of our old homestead estate as a memorial to my mother Eliphal Tucker Borden to be known as the ‘ Eliphal Tucker Borden Park Play Grounds’ et cetera. And I hereby give to my said trustee full power and authority to sell other lots of land and improvements thereon and to give full deeds of conveyance and acquittance thereof in fee simple and to use the proceeds in carrying out said designated plans and purposes ; also to buy any other lots or parcels of land necessary to more fully carry out said plans and pur- • poses. I also give my said trustee full power to buy, exchange, invest and reinvest my personal estate as he may consider best for the interests of my estate and the foregoing plans and purposes referred to.” It being plain that no personal bequest was intended, as the trustee was to hold and distribute the property in accordance with the wishes of the testatrix, the trust cannot be administered unless a definite charitable gift is disclosed. If the trust had been for such charitable purposes as the trustee in his discretion might select, or if the directions had been specific that he was to erect, for the benefit of the public, a clock tower with a clock in memory of her sister, and to convert the homestead into a park or playground as a memorial to her mother, the phrase relating to her previous verbal instructions might be treated as merely descriptive as in Wells v. Doane, 3 Gray, 201, 204, and a valid charity established. Minot v. Baker, 147 Mass. 348. Gill v. Attorney General, 197 Mass. 232. Molly Varnum Chapter, D. A. R. v. Lowell, 204 Mass. 487,493, and cases cited. New England Sanitarium v. Stoneham, 205 Mass. 335, 341. But while a general purpose to devote the residue to charity is evi 200 dent, the objects finally to be selected are not designated, and can be ascertained only upon resort to the verbal communications made to the trustee and to Abbie C. Anthony. If these instructions had been in writing, a reference to the instrument would have incorporated it with the will, but as a testamentary disposition of property cannot be made partly under the statute of wills and partly by paroi, the trust is so indefinite that it cannot be executed. Minot v. Attorney General, 189 Mass. 176, 179, 180. Berry v. Dunham, 202 Mass. 133, 139. It follows, that after the payment of the pecuniary legacies and of the bequest to the executor for the purposes named in clause three over which there is no dispute, the residue goes to the heirs at law of the testatrix who take by way of a resulting trust. Nichols v. Allen, 130 Mass. 211. Minot v. Attorney General, 189 Mass. 176. Bowden v. Brown, 200 Mass. 269. Decree accordingly.