Hadden v. Dandy

Pitney, V. C. I think there can be no doubt that the two societies named by the testator in his will are respectively the local Methodist society of Belturbet and the general Methodist society of Ireland. The addition by the testator of the word “ Wesleyan ” does not, in my judgment, throw the least doubt on his meaning. The previous existence there of two societies of one faith and, in the main, of one discipline, with one of which he was connected, and their subsequent union into one society, of which union he was probably aware, seems to leave no room for doubt. The case, as to this part of it, is far within the range of authoritative decisions too numerous and familiar to require citation. It seems to be settled, by what I conceive to be the weight of authority and in accord with reason, that a voluntary unincorporated association may be a legatee of a legacy like this. It is to be observed, first, that there is here no devise of real estate requiring a person, natural or artificial, capable of holding the title; and, second, that there is no perpetual continuing trust, which can be administered only by such a person. The gift is of money and is absolute and unlimited by any trust except such as is implied by its being given to a religious society. There is no limitation of the gift to the use of. the annual income, norlo any particular purpose, such as is often found in such testamentary dispositions. In order to carry out the intention of the [159] testator, we have only to see to it that the gift reaches the proper officer of the association. What shall afterwards become of it does not' concern the court, as, so far as appears, it did not the testator. He appears to have been satisfied to give the money to the association without any direction as to how it was to be used, relying, as he might well do, upon the general and established character of the society. That an unincorporated association of this character is competent to receive a direct and unlimited gift of money, was admitted to be settled law by Sir John Leach, in Wellbeloved v. Jones, 1 Sim & S. 40. There the bequest was to the officers of an unincorporated theological seminary, in trust to use the income and, interest in certain specified charities. The suit was brought by the officers of the school against the executors, without bringing in the attorney-general. It was held that the attorney-general must be brought in, “because the king, as parens patrice, superintends the administration of all charities, and acts by the attorney-general,” and that a proper trust must be established &c. Sir John Leach, however, adds these words: “It has been held not to be necessary that the attorney-general should be a party where a legacy is given to the treasurer or other officer of some established charitable institution to become a part of the general funds of that institution; and this exception is reasonable; for the attorney-general can have no interference with the distribution of their general funds.” And Mr. Boyle, in his treatise on Charities (at p. 217), states this as the law in England. And this principle seems to have been acted upon withont question in Johnstone v. Earl of Harrowby, 29 L. J. Ch., 145; 1 De G., F. & J. 183, where, I infer, the bequests were to unincorporated societies. And Mr. Perry, in his treatise on Trusts (§ 730), cites other English as well as American cases in support of the same rule. The case of Evangelical Association’s Appeal, 35 Pa. St. 316, was so much like the present as to be indistinguishable, and the subject there received full consideration by Justice Strong, who [160] reviewed the authorities and whose language and judgment apply here. The same rule is supported by the judgment of Mr. Justice Baldwin, in McGill v. Brown, Bright. N. P. 347, and Blennon’s Estate, Bright. N. P. 339. To the same effect are the earlier cases in New York: Potter v. Chapin, 6 Paige 639, where Chancellor Walworth (at p. 619) says that the contrary decision of Baptist Association v. Heart’s Executors, 4 Wheat. 1, is generally admitted to be wrong; Wright v. The Trustees, 1 Hoffm. 202, 239, 255 ; King v. Woodhull, 3 Edw. 79 ; Hornbeck v. American Bible Society, 2 Sandf. 133 ; Banks v. Phelan, 4 Barb. 80. In that case there was a bequest of $3,000 “ to the Roman Catholic Church of Peters-burg, in the State of Virginia,” an unincorporated religious society. The learned judge, in his opinion (at p. 89) of this bequest, says: “ It appears, however, that this is an unincorporated institution, and it is contended that, for that reason, the legacy is void. The legality, of bequests for pious and charitable uses, though for the benefit of unincorporated associations, is so well established in this state that it is barely necessary to refer to the authorities.” He then cites some of the authorities above cited, and proceeds: “ In this case, however, the will does not create a trust. It gives the legacy directly to the objects of the bounty of the testatrix.” And he held the bequest good. The later New York cases lean the other way. In Owens v. Missionary Society, 14 N. Y. 380, an unlimited bequest to an unincorporated association was held void because the general objects of the association were not charitable, and on that ground it was distinguished from the cases just cited. In Sherwood v. The Bible Society, 1 Keyes 561, a bequest as follows: “ I give and bequeath unto the Arcot Mission of the Reformed Dutch Church the sum of $3,000, to be used for the education of the heathen boy on whose account I have heretofore advanced money,” was held void because the association was unincorporated, and therefore unable to act as a trustee of a special continuing trust, as that was held to be. The opinion makes no mention of the cases earlier than Owens v. Missionary [161] Society, which it cites as holding the general proposition that a Voluntary association cannot be a legatee. White v. Howard, 46 N. Y. 144, was a ease of a devise of lands, and may well stand on that ground. Numerous other cases in accord with those first above cited, are found in Mr. Randolph’s learned note on the subject. 1 Jarm. Wills (R. & T. ed.) 410, 411, 412. A review of these leads me to the conclusion, first above stated, that a direct gift of money, without limitation as to its future use, to an unincorporated charitable association, is good. But if it were necessary to the validity of the bequests here in question to hold that the legatee should have corporate capacity, I should be inclined to hold that the act of parliament before referred to was sufficient for that purpose. It expressly provides the machinery by which the society may acquire and .hold for its purposes real and personal property, and it impliedly, at least, authorized such acquisition and holding, and subjects it to the purposes of the society as declared by its governing body. The same act authorizes the grantee of this power to unite with any other church, religious body or association in Ireland, but says nothing of the effect of such union upon the exercise of the power thus granted. I conclude that the effect would not be to destroy the power, but rather that it would be perpetuated in the association to result from the union. The-result would be that the trustees previously appointed by the Wesleyan Methodist Society would, by the union, acquire the rights and be subjected to the duties and restrictions prescribed in the act. The character and objects of the legatees are beyond question. It is a matter of history and general knowledge, of which the court takes notice without proof, that the societies formed by Wesley in the British Isles and in this country were, and still continue to be, societies engaged in promoting the Christian religion, and therefore charitable. Money given to any such society is presumably given to charity, and-the gift will be upheld. I will advise that the gifts are valid; that the fund set apart for the annuity of $50 may be paid to the ‘‘stewards,” for the [162] time being, of the Belturbet circuit, and the residue be paid to the permanent trustees of the general society or conference for Ireland. Such payment may be made under the supervision of •a special master and upon such vouchers as he may approve • and upon his report a decree may be made discharging the executor. Costs of both parties, with a reasonable counsel fee to be fixed, will be paid out of the fund.