Button v. American Tract Society

The opinion of the court was delivered by Kellogg, J. This was an appeal from a decree of the chancellor for the first judicial district. The orator was appointed executor of the will of Alexander Miller and as such undertook the execution of the trust. Miller, by his will, made certain bequests, which are in the words following;— — 347 — “ My east or Jackson farm, so called, I give and dispose of in the following manner. The American Home Mission Tract Society for our western missions, twelve hundred dollars, to be secured in a permanent fund in real estate to double the amount, or in bank stock, the interest of which is to be used forever yearly and no more.” “ I give and bequeath unto Laura Miller, my niece, six hundred dollars in the Jackson farm, as above, during her natural life, to be secured in permanent bank stock, or real estate, the interest of which she is to use yearly, and no more, as long as she lives, and then to go to the above named Tract Society for their use.” The orator, as executor, caused the will to be duly proved, and, while the estate was in progress of settlement, he was duly notified, that the bequest first above mentioned and the residuary interest in the bequest above named of six hundred dollars, after the decease of Laura Miller, were severally claimed by the American Tract Society, The American Home Missionary Society, and the heirs at law of the said Miller. Whereupon the orator filed the present bill of inter-pleader, calling upon the said societies and the heirs at law to show and establish their rights to the aforesaid bequests. The parties appeared and filed their respective answers, which were traversed, and testimony taken, and upon hearing in the court of chancery it was decreed, that the legacy in the will for the benefit of the “American Home Mission Tract Society for our western mission” is inoperative and void, and that the heirs at law of Alexander Miller are entitled to the legacy, and the orator is ordered to pay the same to them. The decree of the chancellor is based upon the assumption, that the legacy of twelve hundred dollars is void for uncertainty as to the legatees; — that no society appears to claim the legacy, that answers the description of the legatee, as given by the testator. It cannot be doubted, that the testator intended to bequeath the $1200 for charitable and religious purposes, that he specified the fund, from which it should be realized, and that he intended to designate with sufficient certainty the legatee, or trustee, who should take charge of the legacy and apply the yearly proceeds of the same to the purposes indicated by the will. Whether the testator has sufficiently described the legatee, so as to make the legacy valid and operative, is the only question raised in the case; and if he has failed to do — 348 — this, the decree is right and should not be disturbed. It appears by the evidence, that, previous to the execution of the will, the testator had been accustomed to contribute to the funds of the American Tract Society and the American Home Missionary Society, that he was acquainted with the operations of those societies, and manifested much interest in their success, but expressing a preference for the Tract Society. The Tract Society employed persons called colporteurs, or missionaries, to travel in the western states and distribute their publications, in the success of which the testator was known to feel much interest. That he intended the bequest for either the American Tract Society, or the American Home Missionary Society, we think can hardly be doubted; although the description of the legatee in the will does not precisely correspond with the name of either society. We are of opinion, that the testator intended the bequest for the Tract Society. This intention, it seems to us, is fairly to be inferred from the language of the will. And for the purpose of ascertaining the intention of the testator we are to have reference to the general scope of the will and to every clause of it. The next succeeding clause in the will is a bequest of six hundred dollars to the testator’s neice, Laura Miller, during her natural life, the interest of which she is to use yearly, and at her decease the principal to go to the above named Tract Society. Here the reference is to the society by the proper name of the association, and by which it is generally known. The same party, that is entitled to the legacy of $1200, is entitled to the reversionary interest in the legacy of Laura Miller; and hence we conclude, that the testator, in making these bequests, had in view the American Tract Society. No other known society so well answers to the description of the legatee given in the will. But if this were doubtful, when considered with reference to the will alone, it would be admissible to resort to extrinsic evidence to remove the uncertainty. If any ambiguity exists, it is not apparent upon the face of the will, but is created by extrinsic evidence, and may be removed by the same species of evidence. Brewster v. McCall’s Devisees, 15 Conn. 274. The description in the will is, The American Home Mission Tract Society for our western missions.” This description contains some terms, which are appliea — 349 — ble to two well known charitable societies, the American Tract Society and the American Home Missionary Society. Hence the uncertainty as to which society the testator intended to make the recipient of his bounty. In examining the testimony we lay out of the case the instructions given by the testator to Hall, the scrivener who drew the will, to so draw it as to give the property to the Tract Society, inasmuch as we regard the weight of authority to be against its admission. The testimony, showing that the testator was acquainted with the objects and operations of the Tract Society, that those operations were mainly confined to the western stales, that he took a lively interest in the society, contributed to its funds in his life time, and expressed his preference for it over other charitable institutions, we entertain no doubt is legal testimony and proper to be considered in connection with the language of the will, in determining the intention of the testator ; and when so considered, we are led to the conclusion, that it was manifestly the intention of the testator to convey the property in question to the American Tract Society. Such being the intention of the testator, it should be carried into effect, provided it can be done consistently with the principles of law. 4 Dallas 347. Gardner v. Heyer, 2 Paige 11. So strongly does the law favor carrying into effect the intention of the testator, that devises by implication are sustained. Rathbone v. Dyckman, 3 Paige 10. So the clear literal interpretation of words in a will may be departed from, if they will bear another construction, where other parts of the will manifest a different intention. 3 Paige 10. A court never construes a devise void, unless it is so absolutely dark, that they cannot find out the testator’s meaning. Minshull v. Minshull, 1 Atk. 411. Powell on Devises 421. So it is held by the court in Tucker et al. v. Seamen’s Aid Society et al., 7 Met. 205, that if in the matter of description there is a mistake, that is, if there is no one, who corresponds to the description in all particulars, but there is one who corresponds in many particulars, and no other who can be intended, such person will take. So again it is held, that where the description, in the will, of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evidence is admissible to prove which of such subjects was intended by the testator. 1 Gr.eenl. Ev., sec. 290. So in Beaumont v. Fell, — 350 — 2 P. Wms. 141, the testator devised a legacy to Catharine Earnly; the person who claimed the legacy was Gertrude Yardly, and it was admitted, that no person by the name of Catharine Earnly claimed the legacy ; but it appearing in proof, that the legacy was intended for Gertrude Yardly, it was held by the master of the rolls, that the legacy was a good legacy to Gertrude Yardly. Here, for the purpose of giving effect to the intention of the testator, a person of a different name from the one described in the will was allowed to take the legacy. In Brewster v. McCall’s devisees, 15 Conn. 274, which was analagous to the case before us, it was held, that a devisee may be designated by description, as well as by name, and that such a description is as available in the case of a corporation, as of a natural person. The testator devised a portion of his estate to “ The Missionary Society of Foreign Missions.” No society by the name given in the will claimed this devise, but it was claimed by the “American Board of Commissioners for Foreign Missions.” This claim was resisted by the heirs at law, upon the ground that the devise was void for uncertainty, and that it could not be aided by parol testimony. But the court held, — l. That the devise was not void on its face for uncertainty as to the devisee; — 2. That the extrinsic evidence introduced was proper to ascertain such devisee ; — 3. That, under the circumstances proved in connection with the will, the American Board of Commissioners for Foreign Missions was sufficiently designated as the devisee by description. The court say, there is no ground for the claim, that the devise is void on its face for uncertainty as to the devisee intended. Whatever doubt there may be as to the person intended, such doubt does not arise from any expressions in the instrument, which are of themselves so equivocal, obscure, uncertain, contradictory, or unmeaning, that they are pot susceptible of being understood and applied ; nor does the ex-trinsive evidence in the case disclose such facts, as render it impossible to ascertain the meaning of the language used by the testator. The court held the devise to be made to the American Board of Commissioners for Foreign Missions by description, and not by name; and that there is no rule applicable to devises, which requires the name of the devisee to be mentioned; that it is only necessary, fhat the description of the devisee be by words that are sufficient to — 351 — denote the persons meant by the testator, and to distinguish them from all others.” This case seems tp have been well censidered by the superior court of Connecticut and in principle is not distinguishable from the present case. ✓'''In the case at bar the description of the devisee in the will contains all the words, which constituted the name of the Tract Society. It does, indeed, contain other terms; but those are not inapplicable to but are descriptive of the-American Tract Society. The operations of the society were of a missionary character, their colporteurs were missionaries, and the field of their labor was in the western states. And it is highly probable, that the testator, at the time he made his will, had in view the missionary character of the society, which led him to describe it in the manner he did. The terms used by the testator are applicable to and well describe the American Tract Society, and there is no other society, that we are aware of, to which all the terms are applicable. There is a decided preponderance of proof in favor of the claim of the Tract Society.And it seems to us, there can be no reasonable doubt, that the American Tract Society is entitled to the legacy. / The decree of the court of chancery is reversed, and the case remanded to that court, with directions to enter a decree in favor of the American Tract Society, in accordance with the foregoing opinion.