Burlington University v. Barrett

Cole, J. The plaintiff is an incorporation under and by virtue of the laws of this State. It has had an existance since 1852. At its organization, Dr. Bichard F. Barrett (now deceased) gave to the Burlington University about five hundred dollars, and he became a member of its board of trustees,, and so continued up to the time of his decease. He resided at the time in St. Louis county, Missouri, where he owned a large amount of property. During that time, he also owned considerable real estate in and about Burlington, Iowa. He was in — 68 — the habit of visiting Burlington, in the summer of each year, and perhaps at other times, and .frequently attended the proceedings of the board of trustees of the Burlington University, and was regarded as its patron and friend. In September, 1856, he lost a little son, by whose death he was much affected, and' expressed his intention of giving that child’s share of his estate to some charitable institution. In October of the same year, he signed and delivered to the secretary of the plaintiff, a written declaration, in which he expressed his intention to give such child’s part of his estate to the Burlington University. After this time and prior to March 8,1858, he had two or three attacks of paralysis. At the date last named, Bichard F. Barrett, with his own hand, wrote and signed a paper which he styled his “ last will and testament.” Item third thereof was as follows: “ Ten years after my death I desire that twenty thousand dollars ($20,000) be given to the Baptist College or University at Burlington, Iowa, in money, in debts or notes, in town lots, lands, or in any thing that my estate can best spare; and my executors.are to be the judges of its value, etc.; and, as agriculture is the great interest of Iowa, I desire the institution to keep it as a fund, the interest of which is forever to be devoted to the support of a professorship, to be called the Barrett Professorship, to be devoted to agriculture, or to learning pertaining to agricultural affairs. It is to be given to said college, provided it shall have, before that time, a permanent endowment of at least eighty thousand dollars ($80,000), exclusive of the college buildings and grounds around them. I desire this sum to be given to said institution after it shall have insured to it the means of living, and not before. Institutions of the kind cannot live and prosper without an adequate endowment, and my bequest, without more, would be but a drop in the bucket. I therefore make it conditional, — 69 — dependent on a previous endowment of eighty thousand dollars ($80,000). With that sum and my bequest the institution should be able to live and prosper, conferring blessings, in the way of education, upon the youth of the town and county in which it is situated.” Afterward, and on the 26th day of July, 1858, the secretary and agent of the plaintiff, visited Dr. Barrett at his residence in St. Louis county, Missouri, and spent much of the day with him. While there, the secretary wrote, and Dr. Barrett signed the following paper, which is the basis of this action: “Whereas, I have in my last will and testament bequeathed unto Burlington University, Burlington, Iowa, twenty thousand dollars ($20,000), to be paid in ten (10) years after my death, on condition that an endowment fund of one hundred thousand dollars ($100,000) shall be secured by that time to this institution, inclusive of my bequest of twenty .thousand dollars ($20,000); I do now voluntarily agree and bind myself to pay, or to have this sum of $20,000 paid on or before the said time, and on the condition that the institution shall have raised fifty thousand dollars ($50,000), one-half the sum aforementioned, and, further to aid said institution, I also agree and bind mj^self to pay to the same, two hundred dollars ($200) per annum, for ten years, commencing January 1st, 1861, or until I • shall have paid to the institution the aforesaid bequest of $20,000. All of which I do, trusting to the board of trustees and the agent of -said institution, that they will, in good faith, execute the pledge voluntarily made to me, in gratitude for my bequest; that free tuition shall be given to twenty (20) such students, at a time forever, as I shall nominate for the enjoyment of this benefit ; or, in case of my failure to nominate, shall be nominated by the board of trustees, in view of their indigent circumstances, or good moral character and promise of — 70 — eminence and usefulness, and also trusting that said board, or agent, will in good faith, persevere in efforts to advance the interests of the institution, until the same shall be fully and amply endowed by at least one hundred thousand dollars ($100,000) — the sum indicated in my bequest. In testimony of all which I do hereto set my hand,” etc. At a meeting of the executive committee of the board of trustees, held August 2, 1858, the above agreement was read, accepted, and they pledged themselves to comply with its conditions, and notice thereof was mailed to Dr. Barrett, properly directed. On the éth day of July, 1859, Dr. Barrett revoked the paper or will of March 8,1858, by tearing the same, with intent to revoke and destroy it; and also by writing and signing, entirely with his own hand, another paper or will, expressly revoking therein “ all other wills and codicils before made.” The eighth item of this last will was as follows: “ In March, 1858,1 made a will in which I gave the Baptist College in Burlington, Iowa, twenty thousand dollars, conditionally. This bequest I have mentioned to several persons; lest they think I am fickle, the following statement is due: In March, 1858, I had some fifty or sixty thousand dollars due me, bearing ten per cent; rents in Burlington, Iowa, of hotel, stores, offices, etc., amounting to ten or eleven thousand dollars, thus-making my income fifteen or sixteen thousand dollars. The said fifteen or sixteen thousand dollars, have not been, nor can they be collected, interest therefore stops. Bents, then, of hotel, etc., amounting to ten or eleven thousand, are now less than three, not enough to pay taxes, insurance, and interest on the money I borrowed to build addition to hotel, so the twenty thousand I am not able to give to the college, and every prudent man says so. I therefore make a new will, and revoke the bequest, trusting that Avhat I have already given to said college may enable it — 71 — to succeed. This will is composed by myself and written and signed with my own paralytic hand, this 4th day of July, 1859.” There is no definite or satisfactory proof as to the amount of the estate of Dr. Barrett. The defendant, who is the son and administrator, testifies that the “ estate will not pay the incumbrances on the estate and this sum too.” The agent of the plaintiff who drew the agreement, testifies that the property belonging to that part of his estate, situated in Burlington, Iowa, is, over and above all incumbrances upon it, more than sufficient to pay plaintiff’s claim. Dr. Barrett died in Burlington, Iowa, while on a visit there to spend the summer; his death occurring some time in May, 1860. It is also proved in the case, that the Burlington University, in October, 1865, was out of debt 'and had property, including college grounds, buildings, library, etc., to the value of about thirty thousand dollars, besides an endowment fund raised since the above agreement was signed by Dr. Barrett, of five thousand dollars, and that it had at all times since been amply able to give instruction to any twenty students that might have been nominated; that its school was in operation and paying all expenses. Dr. Barrett was evidently of the opinion that, where a will was wholly written and signed by the testator himself, it needed no witnesses. But by the statutes of Missouri, in which State Dr. Barrett resided at the time of making his will and of his death, and by the laws of which, its validity must be determined, it was enacted that “Every will shall be in writing, signed by the testator or by some person by his direction, in his presence; and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator.” Statute of Mo. vol. 2, page 1567, § 4. The — 72 — two wills were presented to the probate court of St. Louis county, Mo., and, upon proper proceedings had thereon, they were rejected, and letters of administration were granted upon the estate to the defendant, Richard F. Barrett, who has also qualified in this State. The foregoing are, in substance, all the facts in the case, and in the light of which the agreement in controversy is to be interpreted. The sole question presented for our determination is, what is the true construction and legal effect of the agreement of the. 26th day of July, 1858? 1. will: conBtraction!1’ The respective counsel in this case have most ably and elaborately argued the several questions involved in it. Mery much attention was given, hi.argument, to the discussion of the question whether the paper writing, of date 26th of July, 1858, and upon which the action is based, is a contract, or a testamentary instrument. The counsel do not, perhaps, materially differ as to the rule by which this question is to be solved. It is substantially this: If the instrument passes a present interest, although the right to its possession and enjoyment may not accrue till some future time, it is a deed or contract; but if the instrument does not pass an interest or right till the death of the maker, .it is a will, or testamentary paper. The counsel for the plaintiff cites the following authorities in support of his construction of the instrument in controversy as a contract, in each of which the instrument construed was held to be a contract or deed, viz.: Alexander v. Brame, 35 Eng. Law and Eq., 336; Robey v. Hannon et at., 6 Gill (Md.), 463; Jackson v. Culpepper, 3 Kelly, 569, i. e. 573; Cumming v. Cumming, 3 Id., 460, i. e. 479; Jaggers v. Estes, 2 Strobhart’s Eq., 343; McGlawn v. McGlawn, 17 Geo., 234; Williams v. Sullivan, 10 Richardson, 219, i. e. 223 ; Johnson et al. v. McCue et at., 34 Penn. 180; Dawson v. — 73 — Dawson, Rice’s Eq., 260; Mayor, etc., of Baltimore v. Williams, 6 Md., 235, i. e. 362; Bristol v. Warner, 19 Conn., 7, i. e. 18; Shields et ux., v. Irwin & Read, Ex’rs, 3 Yeates (Pa.), 389. While the counsel for defendant cite the following authorities in support of their construction of the instrument in controversy as a testamentary paper, in each of which the instrument construed was held to be a will, viz.: Hester v. Young, 2 Kelly, 31; Kinard v. Kinard, 1 Speer’s Eq., 256; Habergham v. Vincent, 2 Vesey, Jr., 224, i. e. 230x, 235; Hunt v. Hunt, 4 N. H., 434; Crawford v. McClary, 2 Speer’s Eq., 230; Greene v. Proud, 1 Modern, 177, and authorities cited; Metham v. Duke of Devon, 1 Peere Williams, 529, note y, and authorities cited; Williams on Ex’rs, 54 to 59, and authorities cited. These authorities are pertinently cited, and have a legitimate bearing upon the case under consideration. They severally illustrate and verity the rule, in substance as above stated, and abundantly prove that each case depends upon its own peculiar facts and circumstances. They further show, what is the experience of every court, that there is less difficulty in ascertaining the rule of law applicable to a class of cases, than in the application of the rule to a particular case. 2. — compound instrument. There is another rule or principle of construction applicable to such instruments, as to which the counsel in this case are perfectly agreed. It is, that an instrument may be partly a deed and partly testamentary. Robinson v. Schley & Cooper, 6 Geo., 526. 3. _ constmction. An examination of the cases will show that, in determining the character of the instrument, as to whether it is testamentary or contract, the courts do not allow the use of language peculiar to either class of instruments, nor even the belief of the make! as to its character, to control inflexibly their construction of — 74 — it. But, giving due weight to these circumstances, courts look further, and, weighing all the language as well as the facts and circumstances surrounding the parties and attending the execution of the instrument, give to it such construction as will effectuate the manifest intention of the maker and parties to it. Without giving at any length the reasons or argument in support of our construction of the instrument in controversy, we are entirely agreed in holding that the instrument sued upon does not, of itself, 'confer any right upon the plaintiff to demand, or any obligation upon the defendant to pay, the twenty thousand dollars; but that the promise to pay two hundred dollars per annum for ten years, commencing January 1, 1861, is a binding contract and promise, and the plaintiff is entitled to recover thereon. In our view, the language of the instrument, so far as it relates to the twenty thousand dollars, is recitative of a bequest the maker had incorporated in his previous will, and a promise to modify the condition precedent upon which it was made to depend, so far as the time and amount previously to be raised were concerned. In support of this view we stop only to mention one very controlling fact, and that is, that the twenty thousand dollars is three times spoken of in the latter part of the instrument as a bequest — not as a promise, agreement or contract, -but as a bequest. The promise refers to the modification of the time and conditions of the payment of the bequest. As to the consideration to support the promise to pay the two hundred dollars per annum, we hold, upon the authorities cited by plaintiff’s counsel, that it was sufficient. McDonald v. Gray, 11 Iowa, 508. Under the construction of the instrument as given herein it becomes wholly unnecessary to determine — 75 — whether the plaintiff, by the terms of the instrument, was to raise or receive fifty thousand dollars, or only thirty, before it would be entitled to the twenty sued for. So also with the other questions discussed by counsel. Beversed.