Wheelock v. American Tract Society

Hooker, J. The complainant is administrator with the will annexed of Sarah W. Wheelock, and files this bill to obtain a construction of the will, a copy of which is appended. This will was made when the testatrix was a resident of Pennsylvania, and her estate was administered nearly to the point of distribution before the will was discovered. The persons named in the will as executors died before the will was discovered,—one before the death of the testatrix, and one after. The estate consists of real estate, there being little personal property, and this will be required to pay the expenses of the administration. The circuit judge held the provisions of the will void. The complainant contends that the will is inadequate to the creation of a trust, while the four corporations mentioned seek to uphold its validity. This must depend upon two questions: 1. Does the will comply with subdivision 5, § 5573, 2 How. Stat.? 2. If so, does it fail by reason of the death of the trustees named in the will? Whether or not this trust is fully expressed and clearly [144] defined upon the face of the instrument creating it, as required by subdivision 5, § 5573, 2 How. Stat., must depend upon the construction of this will. It is agreed by all parties that the provision for “poor and worthy girls” is ineffective, and must fail. So far as that provision is concerned, the trust is not fully expressed or clearly defined. On the other hand, the provision for the four societies is not open to that objection, and may stand unless it is inseparably connected with the other provision, and must fall with it. A similar will was considered in the case of Tilden v. Green, 130 N. Y. 29 (27 Am. St. Rep. 487), where this interesting question will be found elaborately discussed. In that case the residuum of the estate was devised in trust, to be devoted to some objects to be worked out through a prospective corporation, which the trustees were authorized to cause to be created, if possible, but subject to the power of the trustees to divert the fund, or any part of it, from that object, and apply the same to general charity, if they deemed it inexpedient or the corporation should not be organized. The court held that the will indicated that the testator had in view one general scheme of charity, and that all the provisions of the will were inseparably connected, and must fall, inasmuch as some of them, like the provision for “poor girls” in this will, were vague and indefinite, and inasmuch as the will designated no beneficiary who might enforce the trust. The attempt to maintain that the Tilden trust was the primary object of the testator’s bounty was similar to the claim made here that the four societies were intended to be the first objects to be considered. We do not fail to note the distinction urged by counsel that this will indicates that some provision, be it never so small, was, by the terms of this will, assured to these societies, or one of them; but if this can be said to be so, in view of the fact that the “poor girls” were mentioned, and of the statute (2 How. Stat. § 5616), we are still impressed by the fact that the testatrix ap [145] parently intended that the interests of the “poor girls” should be weighed by the trustees before determining how the estate should be divided. As said in the Tilden Case: How could the trustees, charged with the imperative duty of devoting the estate to charitable purposes, consider the question whether they should give the four societies anything, or (if, as contended, each was entitled to something) more than a nominal sum, without taking a complete view of the whole field of charities embraced within the provisions of the will? We think the case is within the rule maintained in the Tilden Case, and that the view taken by the learned circuit- judge was correct, and that the decree should be affirmed. The other question need not be discussed. Decree affirmed. The other Justices concurred.