Jones v. Watford

The opinion of the court was delivered by Fort, J. In this case there are cross-appeals. The decree of the court of chancery sustains the validity of the residuary clause of the last will and testament of Thomas B. Watford, deceased, the provisions of whose will, relating to the questions before us, are set out at the head of this opinion, but decrees that the executors named in the will “are not capable to take upon themselves and discharge the duties created by the said clause.” This court affirms the decree appealed from wherein it sustains the residuary clause of the testator’s will, for the reasons given by "Vice-Chancellor Grey in Jones v. Watford, 17 Dick. Ch. Rep. 339. [787] So much, of the decree, however, as adjudges that the executors named in the will are not capable of taking upon themselves and discharging the trust, we think, is erroneous and should be reversed. So much of the residuary clause of the testator’s will as .need be quoted is as follows: “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors hereinafter named and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Ohurch or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all,” &e. By the last clause of his will he names three executors, and then provides as follows: “Should any of my executors die or refuse to act, it is my will that the survivor or survivors shall select an executor to fill the place of the one deceased or refusing to act, as it is my desire that there shall be at least two executors at all times.” The trust being good, we think that by the provisions of the will in which it is formed, the executors named in the will, who are the appellants from this part of the decree, are clearly charged with the execution of the .trust. In executing these-provisions of the will, the executors are trustees of the fund bequeathed, and are charged with its proper application under the will. It is unnecessary to determine as to the question of successors to the executors as trustees, under the residuary clause of the testator’s will, as all the executors named qualified and stand ready to carry out the trust imposed. There is, then, in prcesenti, no question as to successors. The learned vice-chancellor has not favored the court, in his opinion, with any reasons why the executors are unable to execute the trust, nor has he cited any authorities bearing upon that question. In a trust for charity, the trustees take the estate. Exeter v. Odiome, 1 N. H. 232. [788] The only question in a case of this character is whether the will gives the legal estate to the trustees, and whether the person or corporation named in the will is competent to take. Downing v. Marshall, 23 N. Y. 366; Goddard r. Pomeroy, 36 Barb. 546; Goodell v. Union Asst., &c., 2 Stew. Eq. 32. The capacity of the executors in the will before us is not questioned. They are natural persons. It would he difficult to frame language more clearly indicating the testator's intention to devise and bequeath his residuary estate to his executors in trust for the purpose indicated, and that they or their successors, the succession to be continued as indicated in the will, should manage the trust. Bisp. Pr. Eq. § 136; 2 Pom. Eq. Jur. §§ 1062, 1087. This results in an affirmance of that part of the decree appealed from by William Watford et al., and a reversal of that part of the decree appealed from by William H. Jones et al., executors. For affirmance of that part of' decree appealed from by the next of Icin—The Chief-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh—11. For reversal—Vroom—1. For reversal of that part of decree appealed from by the executors—The Chief-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Adams, Vredenburgh, Vroom—11. For affirmance—None.