Lepage v. McNamara

Stockton, J. ¥e first inquire whether the defendant acquired any title to the property in dispute, by virtue of the sheriff’s deed to Simplot, and the subsequent conveyances from Simplot to Biron, and from Biron to defendant. At the death of Lepage, his administrators succeeded to his personal estate, and his real estate, undisposed of by will, descended to his heirs at law. The sale of the real estate, made by the sheriff, under an execution issued on a judgment against the administrators, passed no title to the, purchaser, for the sufficient reason, that the administrators had no title or interest in the real estate of the decedent subject to sale. The statute in force at the time, provided that befpre the real estate of any testator or intestate should — 139 — be subject to execution upon any judgment against tbe executor or administrator, tbe heirs and devisees, if any, of the decedent, should first be made parties to the judgment. TJpon application and proper showing to the District Court, that judgment has been obtained' against any executor or administrator, to be levied of the goods and chattels of the deceased, and that execution issued thereon, remains unsatisfied, for want of personal estate, and that there is real estate of the deceased liable to the payment of the judgment, upon due notice to the heirs and devisees, unless good cause to the contrary be shown, execution may be awarded against such real estate, under which the interest and title of the heirs and devisees maybe sold and conveyed by the sheriff to the purchaser. Act of 1839, 202, section 16; Act of 1843, 637, section 25; Code, 273, section 1918. The judgment, execution and sheriff’s return, and sheriff’s deed under which the defendant claims title in the premises, were given in evidence by him on the trial, and are made part of the record. The, judgment was against the administrators of Eaptiste Lepage. The execution gave no power to the sheriff to sell real estate, the title to which was in the heirs of Lepage, and not in his administrators. It did not run against the heirs, and it in no manner appears that they were made parties to the judgment, or that execution was awarded against them. It is urged by the counsel for the defendant, that it was incumbent on the plaintiff to show that no award of execution was made by the district court against the heirs of Le-page, on the judgment against the administrators, before it will be held by this court, that the proceedings under the execution were void, or conveyed no title to the purchaser; and that in the absence of all proof upon the subject, this court will presume in favor of the regularity of the proceedings of the district court, and that such award of execution was made. ’While we do not dispute the correctness of the doctrine maintained by the counsel, as to the presumed regularity of the proceedings of the district court, we do not consider it applicable to the facts of this case. — 140 — The plaintiffs, to establish their right to recover the premises in dispute, offered evidence to show that Baptiste Le-page died seized of the premises, and that plaintiffs were his heirs at law and legal representatives. This entitled them, prima facie. to recover. The defendant undertook to show a better title, or that the title of the heirs, derived from their ancestor, had been divested in due course of law, and vested in himself. To do this, as he claimed title under a purchaser at a sheriff’s sale, he must give in evidence a judgment and execution under which the property could be sold, and prove the sale of the premises, which may be done either by the sheriff’s deed or the return on the execution. Adams on Ejectment, 272, note; Fenwick v. Floyd, 1 Harr. Gill, 172; Cooper v. Galbraith, 3 Wash. C. C. 546; Fraker v. Brown, 2 Blackford, 298; 12 Johnson, 213. The defendant has introduced the judgment against the administrators of Baptiste Lepage, the execution and sheriffs return, and sheriff’s deed to Simplot, with the subsequent conveyances, in order to show title in the premises in himself. This would be sufficient, if it had also been shown by him, either that the defendants in the judgment and execution, held the title of the property'sold, or that the heirs of Lepage had been made parties, and were bound by the judgment. Nothing of this kind appears. The judgment and execution were against the administrators of Lepage, and not against his heirs, and although it appears that the execution commanded the sheriff to “cause to be made of the goods and “ chattels, and for want thereof, of the lands cmd tenements of “ James Fanning and Ezekiel C. Dougherty, administra- “ tors of Baptiste Lepage, deceased,” the amount of the judgment and costs recovered against them, yet this writ gave no power to the sheriff to sell real estate, the title to which was in the-heirs of Lepage, and not in his administrators. Nothing appears from which we can infer, that the heirs and devisees of the decedent were made parties to the judgment. "We cannot infer this from the fact that the execution commanded the sheriff, in default of goods — 141 — and chattels, to sell the lands and tenements of the defendants as administrators; nor can we infer that execution had been awarded against the real estate of the decedent descended or devised to his heirs or devisees. We are of opinion, that the sheriff’s deed conveyed no title to Simplot, in the premises in dispute — and the subsequent deeds from Simplot to Biron, and from Biron to defendant, are of course inoperative. The district court erred in refusing to give the first instruction asked by plaintiffs, and in charging the jury that said deeds were good and sufficient as' against the plaintiff, and conveyed a valid legal title to defendant. We next proceed to inquire what title in the premises, the defendant acquired by virtue of the conveyance from Bishop Loras. The conveyance expresses upon its face, “ that whereas, the said McNamara had purchased the prop- “ erty in good faith, had paid a good consideration there- “ for, and had made valuable improvements thereon; and “ whereas doubts had arisen whether the whole estate of said “ Baptiste Lepage in said premises, had been fully convey- “ ed to said McNamara; in order that justice may be done, “ and the title of said McNamara quieted, the said Mat- “ thias Loras, Bishop of Dubuque, by virtue of the said “ will, and the power in him vested, and for the further con- “ sideration often dollars, conveys all his right, title, claim, “ and interest in the lot to the said Me Ñamara.” The will of Baptiste Lepage, after providing for the payment of all his debts, contains the following provision: “All the real “ estate of which I shall die seized or possessed, shall fall “ into the possession of my wife Genevieve, for her own “ use and benefit during her life-time; at which time, 1 “ direct and emthorize the Right Reverend Bishop Loras, “ or his Successors, to dispose of my real estate, cmd apply “so much thereof, to the. church, or to the education and “ maintenance of poor children, as he, in his wisdom, may “ thinlc proper cmd legal.” We remark, first, that this is not an application to a court of equity, to establish a trust, or to carry out the charitable "purpose manifested by the — 142 — testator in his will. The defendant, is asserting, in a court of law, a legal title derived from Bishop Loras, in order to defeat the estate, claimed to have descendedlo the plaintiffs as heirs at law of the testator. ITe will, of course, be entitled to such consideration and relief only, as a court of law can afford. What interest in the real estate, did Bishop Loras take under the will ? It is not claimed in the argument, that he took any beneficial interest. The utmost that can be maintained is, that the testator by his will, conferred upon him a naked power to sell and dispose of his real estate, upon the death of his wife, unaccompanied with an interest. Conceding this much, and waiving, for the present, the consideration of the question, whether a power to be exercised by “Bishop Loras, or his successors,” is void for uncertainty as to the person who is to execute it, and for uncertainty as to whether he is to execute it in his official or individual capacity, the question whether the legal title accompanied the power and vested in the Bishop, must be determined by another question, viz : — whether there is such a designation of the beneficiaries under the ' trust, or such a dedication of the estate to charity as a court of law will uphold and sustain % The difficulty arising from the uncertainty as to thebeneficiaries,mustbe apparent upon the most casual reading of the will. It is not expressed whether the fund is to be applied to the church, or to educate and maintain poor children; nor is any particular church, nor the poor children of any particular church, city, or place, designated. But even if this were ascertained, only so much of the fund is to go to either the one or the other object, as the Bishop, “in his wisdom, may think proper and legal.” We are clearly of the opinion, that there is here such uncertainty in the beneficiaries, as must render the devise void. Even if the position assumed by the defendant, were true, that the testator designed that the Bishop should take the legal estate as trustee under the' will, the difficulty is not removed. The Bishop took no beneficial interest, and the cestui que trust not being sufficiently indicated, the devise is void./ There is, in general, the same necessity for a — 143 — cestui que trust, capable of talcing the beneficial interest, and so defined and pointed out, as that there shall be no uncertainty, as there is for a properly defined grantee in a deed. Gallego’s Ex. v. Att’y Gen'l, 3 Leigh, 450. If there is such uncertainty, as that it cannot be known who is to take as beneficiary, the trust is void; and the heir, by operation of law, will take the legal estate, stripped of the trust. The testator appears to have had entire confidence in the wisdom of Bishop Loras. If, instead of leaving to the Bishop the duty of making his will, the testator had directed and authorized him to dispose of his real estate, and apply the proceeds thereof to the support of the Gospel, according to the ritual of the church of which he was Bishop, the devise would have been good, under the authority of Johnson v. M. E. Church, 4 Iowa, 180. If he had directed him to apply the proceeds to found an institution for the education and maintenance of the poor children of his church, there is little or no doubt but the devise would have been good. But the testator disposes of his estate for neither the one nor the other of these objects. He does not specify how much of his estate is set apart, or is intended so to be, for charity. It is to be so much as Bishop Loras, “ in his wisdom, may think proper and legal.” Not only is the Bishop to designate the amount to bo disposed of in charity, but he is to say whether it is to go to the church, or to the poor children. Here is no expressed will of the testator. It is as though he had made no disposition of his estate. The wisdom of the Bishop, cannot be substituted for the will of the testator. He cannot bo permitted to say, how much of the testator’s estate may “ properly and legally ” go to charity, nor to decide for him, whether it shall go to the church, or to the education and maintenance of poor children. "Whatever confidence the testator may have been willing to repose in the judgment of Bishop Loras, he must make his own will. And if he wishes to devote a portion of his estate to purposes of charity, he must point out the object, the property, — 144 — and the way it should go, or no trust is created which the courts can support and enforce. In reference to the deed from Bishop Loras to defendant, we remark, that it was not made in virtue of any disposition of the real estate made by him under the will, nor to carry out the benevolent purpose of the testator, in favor of charity. On the contrary, it was made to ratify, as far as may be, an illegal and ineffectual sale of the property by the sheriff, on a judgment against the administrators. The deed is, therefore, not to be regarded as a conveyance of the estate, made to carry into effect the testator’s purpose in favor of charity; and is not entitled to the effect sought to be given to it by the defendant’s counsel, as the execution of a power vested by the will in < the Bishop. A naked power, it is held, may be voluntarily executed; but it is only a power coupled with a trust, or beneficial interest, where the nature and objects of the trust are certain, or may be rendered certain, that will be enforced by a court of equity. Moore’s heirs v. Moore’s devisees, &c., 4 Dana, 359. Where there is nothing more than a power of appointment conferred by the testator, there is nothing on which a trust, on general principles, can be fastened. The power conferred in this case on Bishop Loras, may or may not be exercised by him, at his discretion. If he were to appropriate a part, or the whole, of the property to his own use, who is to call him to account for an abuse of the trust, or misapplication of the fund? He is to apply to one of the two objects of the charity, only so much as he may think “legal and proper.” Who is to control his discretion, or correct the abuse of his power ? The rule is well settled, that wills are to be construed, so as to carry out the intention of the testator, so far as may be consistent with the rules of law; and if the entire will, and all its provisions, cannot be sustained, still to sustain and carry it out, as far as may be practicable. Att’y Gen'l v. Wallace, 7 B. Monroe, 617. When the intention is ascertained, it cannot be carried into effect by the prin — 145 — ciples of the law, the court cannot do that which the.testator might have done, and new model the provisions of the will. The duty of the court, (says Story, J. 3 Peters, 146), is to interpret, and not to make' wills for testators. It is only from necessity, that a devise will be construed absolutely void for uncertainty. If it be possible to reduce it to certainty, it is good. Powell on Devises, 421; 3 Peters, 118. Looking at the will of Baptiste Lepage, and at the devise under which the defendant claims the property in dispute, by conveyance from Bishop Loras, the court cannot give any validity to the devise. . If for no other reason, it is void for uncertainty. 1. It is uncertain what church is intended. 2.. It is uncertain what poor children are intended to be the recipients of the testator’s bounty. The poor children of no particular city, county, church or state, are designated. - . 3. If there were no difficulty in this respect, it is still uncertain whether the testator intended his bounty should go to the church or to the poor children. 4. It is uncertain how much is to go to the charity. Bishop Loras is to determine not only the object, but the amount of the fund it is to receive, and how much it is proper and legal should be so applied. 5. It is uncertain whether the Bishop 'is to administer the trust iu his official or in his individual capacity, and whether the power is to be exercised by him or his successors. It will. hardly be profitable to institute an inquiry into the analogy, between the present case, and those in which the chancellor in England, by the application of the civil law doctrine of cy pres, "gives effect to gifts and devises, where only a general purpose of charity is manifested; or where either, the prescribed object, or the anode of applying it, has failed or become impracticable; or another class of cases, where no particular object is designated, and no trustee named, or person appointed, to select the object, and which are ^administered by the chancellor uaader the pre — 146 — rogative power, and by virtue of an appointment of the crown, as pcarens patrice. In either class of cases, unless the donor manifest an intention to restrict his bounty to some general object of charity embraced by the statute of 43 Eliz., chap. 4, the legacy or gift will be void, and neither the King nor the chancellor, can make any application of it. Moggridge v. Thackwell, 7 Vesey, 75. Our courts of chancery have no other than judicial power, and consequently have no jurisdiction in the second class of cases above' enumerated. The state cannot interfere as parens patriae. If a testator ineffectually dedicates his property to charity, or in such manner that the devise is void, the state has no prerogative right to interfere and dispose of the property, as the King of England has been permitted to do. Att'y Gen. v. United Ins. Co., 2 John. Ch. 386-7; More's Heirs v. More's Devisees, 4 Dana, 366. Even in England, it has been held that the chancellor, as a judge in equity, could not enforce a charitable trust, if according to the rules of the common law, it was either illegal, or void for indeiiniteness, or vague generality. Nor could he, as such, apply the charity to any other purpose than that designated by the donor. He must be governed by the principles of the common law, respecting trusts, adopted from the civil law. Neither the crown, nor the chancellor under his delegated authority, could enforce or appropriate a charitable legacy or gift, which was not valid. Prerogative itself, could not violate the private legal rights of those who, by operation of law, were entitled to property which had been illegally dedicated to charity. See Baptist Association v. Hart's Executors, 4 Wheaton, 1; More's Heirs v. More's Devisees, supra. In the case last cited, Robertson, C. J. delivering the opinion of the court, says : We are satified that the cypres doctrine of England, is not, or should not, be a judicial doctrine, except in one kind of case; and that is, when there is an available charity to an identified or ascertainable object, and a particular mode, inadequate, illegal, or inappropriate, or which happens to fail, has — 147 — been prescribed. In such case, a court of equity may substitute or sanction any other mode that may be lawful and suitable, and will effectuate the declared intention of the donor, and not arbitrarily, and in the dark, presuming on his motives or wishes declare an object for him. 4 Dana, 366. The principles set forth in the above observation, may be further illustrated by a reference to some of the adjudicated cases. A testatrix bequeathed the residue of her personal estate to the Bishop of Durham, to dispose of the same, “to such objects of benevolence and liberality, as the Bishop, in his own discretion, should most approve of. ” The court held the bequest void, on the ground that nothing was a charity, that was not within the letter and the spirit of the statute of 43 Elizabeth 5 and as objects of benevolence and liberality were not within the statute, they were too indefinite to be executed. Morice v. Bishop of Durham, 9 Vesey, 399. A testator bequeathed the residue of his estate to trustees, “for such purposes as they might consider promised to be most beneficial to the town and trade of Alexandria.” It was held by the Supreme Court of the United States, that the devise could not be sustained, for the reason that the beneficiaries of the trust were uncertain, and the mode of applying the bounty indefinite. Wheeler v. Smith, 9 Howard, 55. In Fountain v. Ravenel, 17 Howard, 369, the testator empowered bis executors, after the death of his wife, to dispose of the residue of his estate, “for the use of Such charitable institutions of Pennsylvania and South Carolina, as they might deem most beneficial to mankind.” The wife survived the executors. It was held by the same court, that there was not only too great uncertainty as to the beneficiaries, but the more formidable objection, that there was no expressed will of the testator. Having substituted the will of his executors for his own, and they having died before they coidd make the appointment, the fund was never separated from hi's estate, but remained a part of it, unaffected by the bequest. See also Kelley v. — 148 — Kelly, 25 Pennsylvania State, 460; Gallego v. Att'y Gen'l, 3 Leigh, 450: Wilderman v. City of Baltimore, 8 Maryland, 557; Story’s Equity, section 979. In Wills v. Cowper, 2 Ohio, 124, it is said, that “ if a trust be created in a. party, but the terms' by which it is created, are so vague and indefinite that courts of equity cannot clearly ascertain either its objects, or the persons who are to take, then the trust will be held to fail entirely, and the property will fall into the general funds of the author of the trust.” “ So, where a testatrix bequeathed the residue of her estate to her executors, upon trust, to dispose of the same at such times, and in such manner, and for such uses and purposes, as they shall think fit, it being my will that the distribution thereof shall be left to their discretion,” it was held void for uncertainty. Ib. section 979, B. With these views of the law, as applicable to the present case, we are of opinion that no legal estate, or beneficial interest, passed to Bishop Loras, under the will, and consequently the conveyance by him of the property in dispute, passed no title to the defendant. The real estate of Baptiste Lepage, after the death of his wife, passed to his heirs, unaffected by the provisions of thfe will. The District Court, therefore, erred in refusing the second, third, and fourth instructions asked by plaintiff, and in charging the jury that Bishop Loras was a legatee under the will in his own right; that the proceeds of the real estate were devised to him absolutely; and that the conveyance by him to defendant, was good and valid against the plaintiffs. The judgment of the District Court will be reversed, and the cause remanded for further proceedings, npt inconsistent with this opinion. Judgment reversed.