Kingman v. New Bedford Home for Aged

Jenney, J. The will of George D. Barnard, late of St. Louis, Missouri, was duly proved in a Probate Court of that State; and thereafter, on March 1, 1918, it was ordered to be filed and recorded in the registry of probate for the county of Bristol in this Commonwealth, under the provisions of R. L. c. 136, §§10 and 11. The will was dated at St. Louis on January 16, 1914. It contains the following provision: “Out of the income arising from the said trust estate, the board of trustees shall annually pay the sum of Thirty-six Hundred Dollars ($3600.00) in monthly installments of Three Hundred Dollars ($300.00) per month to the person who shall for the time being be the senior warden of [326] Grace Episcopal Church, of New Bedford, Massachusetts, and to the person who shall for the time being be president of the New Bedford Institution for Savings, and to the person who shall for the time being be Mayor of the City of New Bedford, Massachusetts, to be received by said persons as trustees for the use and benefit of the New Bedford Home for Aged People, or, if there be no such home, then to such charities in the city of New Bed-ford as the said board of trustees, by a majority vote, may select, and said payments when so made by such persons acting as such trustees, to be given in my name, to be designated as a gift coming from me.” The beneficial interest in the trust created by said legacy is claimed by the New Bedford Home for Aged, and also by the Association for the Relief of Aged Women of New Bedford. Both are corporations. There are no other claimants. The trustees asked that it be decided whether either of said corporations is entitled to the income of the trust, and, if so, which should receive it. As the name of neither claimant exactly corresponds to that given in the will,-evidence was admissible to aid in its construction. Such evidence may be received, notwithstanding that the description of the beneficiary in the will more clearly corresponds to that of one claimant than to the other, and although one might better carry out the testator’s purpose than the other. Tucker v. Seaman’s Aid Society, 7 Met. 188. Winslow v. Cummings, 3 Cush. 358. Mason v. Massachusetts General Hospital, 207 Mass. 419. While evidence cannot be received to contradict or control the language of a will, or to show that the testator intended something different from what is expressed therein, where, as in the will under consideration, no ambiguity appears on its face, but an uncertainty arises upon its application to existing circumstances, evidence is admissible of all the surrounding facts known to the testator, and existing or in mind when the will was made, and also as to his relations with the claimants. Brown v. Thorndike, 15 Pick. 388, 400. Minot v. Boston Asylum & Farm School for Indigent Boys, 7 Met. 416. Bodman v. American Tract Society, 9 Allen, 447. Morse v. Stearns, 131 Mass. 389. Hinckley v. Thatcher, 139 Mass. 477. Faulkner v. National Sailors’ Home, [327] 155 Mass. 458. Gould v. Chamberlain, 184 Mass. 115. Best v. Berry, 189 Mass. 510. The Association for the Relief of Aged Women of New Bedford was incorporated in 1866 “to provide relief for aged women of New Bedford.” Ever since its organization, it has been engaged in providing or helping maintain homes for such persons, and otherwise aiding them. It never has established or conducted an institutional home. It has been maintained in part by members of leading families of New Bedford; and it also has been aided by legacies and donations. By reason of its long existence and the prominence of the people connected with it, it has for many years been widely and favorably known in that city. The New Bedford Home for Aged was established as a voluntary association in 1897, by Elizabeth C. Carter, a young colored woman, and incorporated in 1902 “for the purpose of the establishment and maintenance of a place for charitable and beneficial purposes and aiding and assisting and otherwise caring for aged and indigent persons.” The incorporators were colored people. In 1908, it erected a building with accommodations for fourteen persons, and now conducts a home therein. Both white and colored persons have been cared for, but colored women have greatly predominated. The home has always been conducted purely for charitable purposes and has sometimes been known by the name “Home for Aged People.” The testator was born in New Bedford, and, in 1859, when fourteen years of age, left there and lived in the South, until his death in Missouri in 1915. He occasionally visited his native place, and, some years before his death, presented to it a monument, which was erected in one of its public parks. By the terms of his will his large fortune was devoted largely to charity. The hospitals, societies and other institutions designated in this will as beneficiaries are those intended primarily for the benefit of white persons; and there is nothing to show that he ever expressed any special interest in the colored race. He knew that there was an institution in New Bedford which he described in his will as the “New Bedford Home for Aged People;” that said institution had existed in that city for a great many years. He was uncertain as to its correct name. He was deeply interested in the work that it was doing, and knew that it was an [328] organization that provided homes for genteel old women; that" it was not an institutional organization; and that the recipients of its bounty were not all put into one large building, but homes were 'provided for them in different residences so that those assisted were not made to feel that they were in a charitable institution. The single justice found that the charity created by the clause in question was for the benefit of the Association for the Relief of Aged Women of New Bedford, and by his order a decree was entered that it was entitled to the use and benefit of the income of the trust estate. While the record recites no exceptions to the admission of evidence, we think that the evidence so far as it is set forth was admissible. Its effect was properly restricted by the presiding judge. The statement of facts fully justified the findings made. In the discretion of a single justice, costs as between solicitor and client may be allowed from the fund; and the decree entered, except as it may be so modified, is affirmed. Ordered, accordingly.