Coit v. Comstock

Park, C. J. The principal question in this case grows out of a devise and bequest in the will of the late Seth Smith, of New London, which is as follows: [Given in full in the statement of the ease, ante p. 353.] Two questions are presented for the consideration and determination of this court regarding this bequest. 1st. Are the beneficiaries described sufficiently to enable, a court of chancery to carry it into effect? 2d. Is it obnoxious to our statute against perpetuities ? — 377 — The books are full of cases regarding the first question, ■wherein charitable uses have been discussed for centuries, by all grades of courts, from the lowest to those of last resort in England and in this country, and it would be unprofitable and useless to consider more than a few of them, for conflicting opinions abound, so much so that we must come at last to our own adjudications upon the subject, and perhaps to some of those of our sister states, for aid in arriving at a decision of the question. The intent of the testator to create a public charity for the benefit of the aged, respectable and indigent women of the city of New London, is fully and clearly expressed. There is no mistaking his object and purpose: and. his right to dispose of his property in the manner indicated cannot be questioned. Indeed it is said that gifts to public charity are highly favored by the law, and courts of chancery will uphold them if it can possibly be done. “ This is a charity, which a court of equity is bound to uphold if practicable,” said Judge Foster, in White v. Howard, 38 Conn., 366. “ Charities are highly favored in law, and they have always received a more liberal construction than the law allows to gifts to individuals.” 1 Story Eq. Jur., § 1165. “ Courts look with favor upon charitable gifts, and take especial care to enforce them, and guard them from assault, and protect them from abuse.” Perry on Trusts, 630. “ Gifts to charitable uses are highly favored in law, and will be most liberally construed in order to accomplish the intent of the donor; and trusts which cannot be supported in ordinary cases, will be established and carried into effect where it is to support a charitable use.” Sanderson v. White, 18 Pick., 333. “ If it is once determined that the donor intends to create a public charity, very different rules from those which are applied in establishing private trusts will be applied, in order fco effect the intent of the testator and establish the charity.” Perry on Trusts, 629. The beneficiaries in public charities must necessarily be described in general terms. They are persons in most cases yet unborn, and particularization is out of question. Classes — 378 — may be described, running down through all time, but individuals can only be designated as belonging to such classes. Testators, therefore, in their description of parties to be benefited by their public charities, must necessarily be confined to such terms as “the aged,” “the indigent,” “the sick,” “the lame,” “the infirm,” “the destitute,” of a certain class or of a certain territory. These terms have a customary and popular meaning, and the parties to whbm they apply are reasonably unmistakable, although the terms are indefinite to a certain extent. ' Our statute of charitable uses could find no better terms to define its meaning than the general phrases, “ ministry of the gospel, and relief of the poor.” Judge Foster, in White v. Howard, (supra), says: “After all, there is no more uncertainty here than there is in the statute of 1702. If this devise is void for uncertainty then this provision in the statute must be void for the same reason. We should hesitate to pronounce a decision declaring one of the clauses of this ancient statute void for uncertainty.” Perry (on Trusts, p. 651,) says: “ In order that there may be a good trust for a charitable use there must always be some public benefit open to -an indefinite and vague number. That is, the persons to be benefited must be vague, uncertain and indefinite, until they are selected or appointed to be the particular beneficiaries for the time being.” Judge Story in his work on Equity Jurisprudence, § 372, says: “ Courts of equity now, in most of the states, take jurisdiction in carrying into effect charitable bequests,- however general are the purposes and objects intended, if they are sufficiently certain to be intelligible.” Indeed, the famous statute of 43 Elizabeth, in enumerating “the pious .and godly uses ” to which it applies, employs no more definite descriptions than the following — “relief of the aged,” “the maintainenee of sick and disabled soldiers and marines,” “ the education and preferment of orphans,” “ the marriage of poor maids,” “the supportation of tradesmen and handicraftsmen,” that of “persons decaj^ed,” “the redemption of prisoners and captives.” — 379 — It would be strange indeed, if the law should require a testator to be more particular in the description of the objects of his bounty in charitable bequests for the relief of such unfortunates, than are the terms of the statute itself which authorizes such bequests to be made. The uncertainty that must exist in such cases is reduced to certainty if a definite class of beneficiaries is described and a mode is provided for the selection of the particular objects of the bounty. Id certum est quod cerium reddi potest. Judge Storks, in Brewster v. McCall’s Devisees, 15 Conn., 292, says: — “ A devise is never to be construed as absolutely void but from necessity; if it be possible to reduce it to a certainty the devise is to be sustained.” Judge Daggett said in Bull v. Bull, 8 Conn., 50: — “ If a rule is given by which the persons can be described, if not with entire certainty, yet sufficiently so to uphold the devise, and if it can by possibility be upheld, it can never be pronounced void.” The court in Holmes v. Mead, 52 N. York, 322, said: — “It is not material that the legatees should be definitety ascertained and known at the date of the will, or aven at the death of the testator. It is sufficient if they are so described that they can be ascertained and known when the right to receive the legacy accrues.” In the ease at bar the beneficiaries of the testator’s bounty are described as definitely as could be expected in a bequest Avhich rvas intended to be perpetual. Provision rvas made for the selection of the parties to be benefited from the class designated, by a corporation with sufficient by-laws and regulations for the purpose. This is equivalent to the appointment of trustees in perpetual succession to make the selection. Such being the case, we think that the best considered cases in this state and elsewhere sustain us in holding that this gift to public charity is valid, so far as the question we are now considering is concerned. We will briefly consider a few of our own decisions on the subject. In the case of Bull v. Bull, (supra,) a remainder was bequeathed to executors, in trust for the most needy of the testacor’s brothers and sisters, with express authority — 380 — and power to the executors to make distribution to the most needy. The court say: — “Here it can be ascertained who are the most needy of the brothers and sisters and their children. A rule is given by which the persons can be designated, if not with entire certainty, yet sufficiently so to uphold they devise.” This was a private charity, where, it seems, the rule of certainty in the description of beneficiaries is more stringent than is required in public charities; still the description would seem to be as indefinite as in the case at bar. The case was saved by the power,given to the executors to make a selection, which • the law alone could never have done. It required judgment and discretion to ascertain the “ most needy.” In the case of Treat's Appeal from Probate, 30 Conn., 113, a devise was made to trustees for the promotion of education and science among the Indian and African youth of the United States and elsewhere, with full power in the trustees to make selections of beneficiaries from the class designated. The court say: — “As to the objects of the charity, what can be more unambiguous and certain ? The class is certain, and the individuals to be selected from the class may be made certain by the selection of the trustees.” Here again the devise was saved bjr the power given to the trustees to make selections from the class designated. It might have been asked as cogently in that case as similar questions are asked in. this, what age is comprehended by the word “youth?” what number of years and days does it include, so that if any addition be made, the party will pass beyond youth, and be of an age beyond the limits of the devise? So, again, up to what mixture of Indian or African blood with the blood of other races of men, will a person still retain the Indian or African, character or cease to belong to those races ? There would seem to be as much uncertainty here as in the words “ aged,” “ indigent,” “ respectable,” Youth — aged J The one is in the early part of life, the other in the latter; where one ceases, or the other begins, is, manifestly, equally indefinite. In the case of White v. Fisk, 22 Conn., 31, a bequest -was made to trustees — 381 — for the support of indigent pious young men preparing for the ministry in New Haven. The court held the bequest void on the ground that no power was conferred upon the trustees to make selections from the class described, and that the description of the beneficiaries was too indefinite without such power. The court say: — “ The difficulty of carrying this provision into effect is as great as if no trustee had been appointed; for no rule of determination, selection or appointment is furnished by the will, and no positive or discretionary power of determination bestowed. It has been suggested that the power of selecting the beneficiaries under this bequest, and of apportioning the sums of money annually to be disbursed among them, is in the trustees. We do not so understand it. Their only power is to expend the money — to pay it out to the persons entitled under the will to receive it. * * There is a class of cases, the authority of which we recognize, where the individual beneficiaries under a will, but included in a definite class, are left uncertain, and yet the bequest for their benefit has been sustained.' But these are cases where the gift has been to some corporate or voluntary association, whose business and duty it becomes to dispense the charity; or where power is very certainly conferred by the will upon the executor or trustee, to discriminate and select, or to apportion the application of the funds.” Judge Ellsworth, in Treat's Appeal from Probate, (supra,) in commenting upon this casé says:— “ The testator had provided in his will no way of selecting the beneficiaries from a class, and the court held that they could not, even as a court of equity, do it for him. Had that ’ power been given to his executors or trustees, the clause in the will would have been sustained, and Judge Hitchcock would not have been disappointed in his benevolent purpose.” The ease of White v. Fisk has been strenuously urged to show the bequest in question void, but instead of showing this, the case sustains the legality of the bequest. The uncertain words in that case were, .“indigent,” “ pious,” “ young.” In the case at bar, “ indigent,” “ aged,” “ respectable.” The word “ indigent ” appears in — 382 — both cases. Can any one say that the words, “aged,” “respectable,” are more uncertain than the words, “pious,” “ young?” Still it appears by Treat's Appeal from Probate that White v. Fisk would have been sustained if power of selection had been given to the trustees. There are many cases elsewhere which maintain the same doctrine. Washburn v. Sewall, 9 Met., 280; Odell v. Odell, 10 Allen, 1; Saltonstall v. Sanders, 11 Allen, 446 ; Jackson v. Phillips, 14 Allen, 465; Fellows v. Miner, 119 Mass., 541. , Cases might be cited from other states to the same effect, but we think it unnecessary. We think the bequest is valid so far as this question is concerned. Some question has been made with regard to the meaning of the phrase “ have been residents of the city of New London.” It is said that a will speaks from the death of the testator, and that the meaning of the phrase therefore is, have at that time been residents, &c. It is true that wills generally speak from the death of the testator, but there are many exceptions to the rule. The language of a will is to be construed according to the manifest intent of the testator as shown b}r the will. This bequest was intended to be perpetual. The corporation to hold the property during all coming time is burdened with the duty of making selections of beneficiaries from time to time, perpetually, and when selections shall be made, the parties selected shall then “ have been residents of the city of New London.” This is the obvious meaning of the phrase. 1 Some question has also been made in respect to the meaning of the word “home,” as used in the will. But we think it is equally clear what was the precise meaning the testator attached to the word. He was describing a house for the permanentresidence of the aged, indigent, respectable women of the'city of New London. Webster defines “ home ” to be “ a dwelling house ; the house where one resides; residence.” Surely, there is no uncertainty in the will regarding the mean ing of the word. Is the bequest void by our statute against perpetuities ?, ■ The property is bequeathed to the executors of the will in — 383 — trust for the public charity therein created, “ until an act of incorporation can be obtained from the General Assembly of the state of Connecticut.” It is said that, should an act of incorporation never be obtained, the property would remain in the hands of the executors perpetually, and that consequently the bequest is obnoxious to the statute. It is manifest from the will that the testator intended that the property should remain in the hands of his executors but a short period of time. The language of the will is, “ until an act of incorporation can be obtained.” Clearly this act was to be procured as soon as it could be done. It is clear, therefore, that a reasonable time only for the act to be obtained was contemplated by the testator. But it is said that the state might refuse to grant the act. It is true that it may be within the limits of possibility that the sovereign power might refuse. And,so might the donee of a gift refuse to receive a benefaction tendered. The state was to a great extent to be benefited by this public charity, for many of its citizens, who in part make up the body-politic, were to be benefited through all coming time. It was scarcely possible, therefore, that the state would refuse such a benefaction tendered to its citizens, tendered in part to itself. It is further said, that no one is charged with the duty of bringing the matter to the attention of the legislature and procuring the act of incorporation. We do not so understand the will. The executors were burdened with this duty. They were appointed to execute the will, and they accepted the trust. A part of its execution was to carry into effect this bequest, and they would have been recreant to their duty had they neglected or refused to execute this important part of their trust. Executors must pay legacies, and this was in the nature of a legacy to the “ aged, indigent, respectable women of New London.” Their duty could not have been fulfilled until they had procured an act of incorporation, and transferred the property to the corporation when organized. Hence, the gift of the property to the executors was for them merely to hold for such a reasonable time as might be suffi — 384 — cient for them to procure an act of incorporation from the legislature, and then transfer the property to the corporation as soon as it should become organized. Surely the will itself was not obnoxious to the statute. What would have become of the property if an act of incorporation had not been procured within such reasonable time, it is not necessary to consider. There is another view of this question. The testator in this bequest declares his object and purpose to be the founding of a home for the aged, &e., which should endure forever. He realized that men must die, but corporations never die. He desired, therefore, to have the charity under the management and administration of a corporation that should endure as long as the home should exist. To carry out this object he gives the property to his executors, to be transferred to the corporation as soon as it should be chartered and organized. The instrumentality of the executors was employed merely to pass the title to the corporation. Nothing is said in the will as to the beneficial interest in the property becoming vested in the beneficiaries when the property should be conveyed to the corporation. It became vested in them on the death of the testator, liable to be devested if a corporation should not be organized within a reasonable time under all the circumstances. There is no room for claiming that the property did not vest till the conveyance should be made to the corporation. The charity could not be administered till then, but its administration had nothing to do witli the vesting of the property, any more than the possession of property by a devisee has to do with the vesting of the same in him. Reversionary interests vest in a party when the possession of the propertjr is in another. So here, the property became vested on the death of the testator, but the time when the beneficiaries should enjoy the charity was deferred till the corporation should become organized and the property conveyed. There is nothing in either of these views of the question which conflicts with the case of Jocelyn v. Nott, 44 Conn., 55, which has been so strenuously claimed. In that case — 385 — real estate was devised to trustees till some Congregational church, orthodox according to the.faith, order and discipline of the Congregational churches of Connecticut and connected with the General Association of the state, should become organized and should build a church edifice upon the land, for the worship of God according to the usages of such church, and till the trustees should become satisfied that the cost of the building had been paid, and the church and society were free from debt, and permanently established on the land; then the trustees were required to convey the property to the society. The court held the devise void by the statute against perpetuities. It will be observed that there was no connection whatever between the trustees and any one of the Congregational churches of the state of the order described. They were to hold the property till some one of such churches should comply with the numerous conditions, which the court well said might never occur. The devise was a mere offer of the land, and the trustees were to wait and see-whether any one of the churches described would accept the proposition. Clearly, that case is not analogous to the one at bar. The case of Ould v. Washington Hospital for Foundlings, 95 U. S. Reps., 303, is strikingly like the one under consideration. The devise was there made to trustees to hold the property till an act of incorporation should be passed by Congress, establishing a hospital for foundlings, and then convey the property to the corporation. Justice Swayne, in giving the opinion of the court, says: “The testator chose to reach the end in view by the intervention of trustees, and instructing them to convey at the proper time. This provision in the will was, therefore, a conditioned limitation of the estate vested in the trustees, and nothing more. Their conveyance was made necessary to pass the title. The duty with which they were charged was an executory trust. * * When such uses are consummated, and no longer in fieri, the law of perpetuity has no application.” See also Inglis v. Sailors’ Snug Harbor, 3 Pet., 310. — 386 — We think the bequest is not obnoxious to the statute against perpétuites. We think the bequests to the ecclesiastical societies are void by the statute, on the ground that they create perpetuities. A sum of money was bequeathed to each erf'the societies described, to be invested as a perpetual fund; and the annual income thereof, or so much as should be necessary, applied in keeping in good order certain burial lots, and the remainder of the income, if any, applied to the maintenance of the religious services of the societies. The will then goes on to say that in case the societies should at any time fail to comply with these conditions, in keeping in good order the burial lots, the bequests should become void. It has been held in numerous decisions, that bequests for the purpose of keeping burial lots or cemeteries in good order or repair, are not given in charity, and, therefore, are not protected by the statute of charitable uses. If the sums of money had been bequeathed to the societies without condition, and the income thereof applied to the maintenance of the religious services of the societies generally, and one of their duties had been the keeping in good order burial lots or cemeteries, then the bequest would have been given to a charity, and would have been protected by the statute of charitable uses. But the bequests as they are, although some portion of the income is to be devoted to a charitable purpose, cannot be supported. If it were otherwise it would be in the power of an individual to make a perpetuity of property to any extent, bjr devoting some small portion of the undivided income thereof to some charitable purpose. A little charity, in such a case, cannot preserve the entire bequest. Neither can the forfeiture clause protect the bequests. There might not be a forfeiture within a thousand years, and during all that time the property, devoted to keeping in order the burial lots, would be a perpetuity, contrary to' the statute. We think the bequest to the Smith Memorial Home is' — 387 — valid; but that the bequests to the ecclesiastical societies are invalid; 'and so we advise the Superior Court. In this opinion Pardee and Loomis, Js., concurred. Carpenter, J. I think the legacies to the religious societies were good; and that the duty of keeping in order the lots in the cemetery does not make them void as contrary to the statute against perpetuities or otherwise. Granger, J., concurred in holding that -the legacies to the religious societies were void, but dissented as to other points in the opinion.