Brewster v. McCall's devisees

15 Conn. 274

Opinion

Storrs, J.

The questions presented for our advice will be considered in the order in which they have been reserved.

1. Do the lands purchased by the testator subsequent to the execution of his will, or any of them, pass by the will, or do they descend to his heirs at law ?

It has long been the settled construction of the English statute of wills, that a devise of lands operates only on those lands which the testator owned at the time of executing and publishing his will, and that no after-purchased lands will pass under such devise, unless subsequent to the purchase, the de-visor re-publishes his will ;⅛-(2 Blk. Com. 378. 6 Cruise’s Dig. 38.) although the devise is expressly of ail lands which the devisor should have, at the time of his decease. Bunter v. Coke, 1 Salk. 237. This construction has not arisen from the particular phraseology of that statute, which says, that “ any person having lands &c. may devise,” as is suggested, by the counsel for one of the devisees in this case, but from the character of the instrument; it being considered to be in the nature of a conveyance or appointment of a specii"' •estate. Such is the view most explicitly taken of it, by Lord Chancellor Loughborough, in Brydges v. The Duchess of Chandos, 2 Ves.jr. 427., and by Lord Mansfield, in Harwood v. Goodright, Cowp. 90. Although our statute is not couched in the very words of the English statute, the language being that “ all persons of the age of twenty-one, &c., shall have power to dispose of their real estate,” &c. ; yet the object of it was the same ; and there is no such diversity as to justify a different construction. Accordingly, we find that the late Ch. J, Swift, in his Digest, ml. 1.136. lays down, without remark, the law on this point as it is found in the English cases. In New-York also, and indeed generally, the same construction prevails. Jackson d. Rogers & al. v. Porter, 9 Johns. Rep. 312. Livingston & al. v. Newkirk, 3 Johns. Chan. Rep. 312. Minuse & al. v. Cox & al. 5 Johns. Chan. Rep. 441. Ballard & al. v. Carter, 5 Pick. 112. 114. Carter & ux. v. Thomas, 4 Greenl. 341. 342. 4 Kent’s Com. 498.

The claim which has been made, that our statute of 1831 is merely declaratory of the then existing law, and therefore requires a broader construction than it had before received, is not well founded. That statute provides, that “ any person, having power to dispose of real estate, by will or testament, may, by such will, devise real estate not owned by him at the time of making the same, but acquired after-wards.” Stat. ed. 1838. p. 245. It is obvious, that it was the object of this statute to remedy, a defect in the existing law, and to extend the power of devising further than previously allowed. 4 Kent’s Com. 499.

It is, however, insisted, that, although the will now in question was executed several years prior to the passing of the act of 1831, that act operates upon it, so as to give validity to the provisions it contains in respect to the after-acquired estate of the testator. The general rule is, that statutes shall not be construed retrospectively, unless by their express terms or otherwise, such appears to be the manifest intent of the legislature. Goshen v. Stonington, 4 Conn. Rep. 210. Perkins v. Perkins, 7 Conn. Rep. 558. Jackson d. Sherwood v. Phelps, 3 Caines 62. 69. Here there is nothing from which we have a right to infer, that it was intended to affect any wills which had been executed prior to the passing of the act. | Therefore, the lands purchased by the testator, subsequent to the execution of the will, do not pass by it, but descend to his heirs at law. |

2. On the question, as to what interest the widow of the •testator takes in the stock on the farm lying in Bozrah, and Franklin, we are of opinion that she is entitled to an absolute interest, and not an estate for life only. The testator gives to her, not the one third of the use of the farm and the stock> during her natural life ; nor the one third of the use of the farm, during her natural life, and of the stock ; but one third part of the use of the farm, during her natural life, and, if sold, one third part of the interest of the money which it should sell for, “ together with the stock of said farm.” This would seem to indicate that the property itself, and not a qualified or temporary interest in it, was intended to be given ; and, considering the precarious and temporary nature of the property ; that the reversionary interest in it would be of but little value ; and that it would probably promote the ac-*’ commodation of the occupant to be able to dispose of it at pleasure, that intention is believed to be rendered quite obvious. Limitations of the mere use of personal property with reversions and remainders over, although allowed, are certainly not to be favoured : it is with reluctance that they have been sanctioned by our courts, arfd they will lean against the creation of them, either by deed or will, unless by expressions that are clear and definite. There is certainly no such plain manifestation of an intention to create an estate in this case.

3. Is the corporation incorporated by the name of “ The American Board of Commissioners for Foreign Missions,” entitled, under the will in question, to a share of the estate of the testator; and if so, to what share l

The devise is of “ one fourth part of all [his] estate not •disposed of to [his] wife, to The Missionary Society of Foreign Missions.”

There is no ground for the claim which has been made, that this devise is void on its face for uncertainty as to the devisee intended. Whatever doubt there may be, in this case, as to the person intended, such doubt does not arise from any expressions in the instrument, which are of themselves so equivocal, obscure, uncertain, contradictory or un meaning, that they are not susceptible of being understood and applied ; nor does the extrinsic evidence in the case disclose such facts as render it impossible to ascertain the meaning of the language used by the testator. It is not, therefore, a case of what is termed patent ambiguity, which exists, when, in the language of Roberts, “ an ambiguity is produced, by the uncertainty, contradictoriness, or deficiency of the language of an instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful or smothered sense, without adding ideas which the actual words will not of themselves sustain.” Roberts on Frauds, 15. As, for instance, where a testator devises to “ one of the sons of J. S.” who has many sons ; (Strode v. Russel & al. 2 Vern. 621. 624, 5. Dowset v. Sweet, Amb. 175. Buggins v. Yates, 9 Mod. 122.) or where a blank is left for the name of the devi-see ; (Hunt v. Hort, 2 Bro. Ch. Rep. 311. Baylis & al. v. The Attorney-General, 2 Atk. 239.) or where the devisor after bequeathing his lands to his wife for her life, and after her decease, to M. D., the niece of his wife, proceeds thus : “ I give the use of 500/. stock, for her natural life, but after her decease, I give the 500/. among my wife’s brothers and sisters.” Castledon v. Turner, 3 Atk. 257.

, It is however insisted, that in this case, the evidence proves, that there is no such corporation or society in existence as The Missionary Society of Foreign Missions; and therefore, that the devise is inoperative. If indeed there were no society in existence either of this name or description, the devise would be void, for the want of any person to take under it. If, however, there is a corporation of either that name or description, and only one, we think there cannot be a doubt that it would take under this devise. Under the circumstances of this case, the devise must be deemed to be made to that society, by description, and not by name. The evidence shews, that there is no society bearing the name of “ The Missionary Society for Foreign Missionsbut that there are several, whose objects and character are correctly described by those words, considered as words of description;— and there is nothing in the will to shew, that the testator intended to designate any particular society by name. A devise is never to be construed absolutely void for uncertainty, but from necessity : if it be possible to reduce it to a certainty, the devise is to be sustained, Ul res rnagis valeat quam pereat. Powell on Devises, 421. There is no rule applica- - ble to devises, which requires the name of the devisee to be mentioned: it is only necessary that the description of the devisee be by words that are sufficient to denote the persons meant by the testator, and to distinguish them from all others. Nihil facit error nominis, cum de corpore constat. 6 Cruise’s Dig. 207. 4 Id. 314. And indeed, it is true of much the greatest proportion of devises, that the objects of them are designated by description, rather than by name. In Rivers’ case, 1 Atk. 410. Lord Hardwicke said, “In the case of a devise, any thing that amounts to a designatio personae is sufficient.” Beaumont v. Fell, 2 P. Wms. 141. Bartlett & al. v. King, exr. 12 Mass. Rep. 537. 541. Ram on Wills, 49, 50. Pow. Dev. 337. It is very obvious, in the present instance, that the testator intended, as the object of this devise, some society which was devoted to the object of foreign missions ; and it is not singular that he should have described it by its occupation. And no substantial reason is perceived, why such a description is not as available, in the case of a corporation, as of a natural person. It is sufficient in both cases, if the intention of the testator can be discovered, by the language he uses, in connexion with such evidence as is proper for the purpose of applying it. It might perhaps fairly admit of a question, under the more modern decisions on this subject, whether the corporation now claiming under this devise, is not sufficiently designated in it by name ; the strictness which was anciently required in setting forth the names of corporations in grants and devises, having been very much relaxed, and more reasonable rules adopted. Case of the Mayor &c. of Lynn Regis, 10 Coke 123. Finch’s case, 6 Coke, 64. 6 Cruise’s Dig. 216. Angel & Ames, 55. It is not, however, necessary to decide this point.

It appearing, from the testimony in the case, that there are several societies pursuing the same object as that of the society mentioned in this devise, and which were in existence when this will was executed, it becomes necessary to ascertain which of them was intended by the testator. That pa-rol testimony is admissible for this purpose, does not admit of doubt. It is the case of a latent ambiguity, raised by the parol evidence, which discloses the fact that there are several such societies, and which therefore may be removed, by the , _ t . , species or evidence: for it is a familiar rule, that a . , . latent ambiguity, that is, an ambiguity arising from extrinsic evidence, may be removed by extrinsic evidence. And, as J J .. remarked by Starkie, (Ev. pt. 4. p. 1021.) the illustration most usually given of the operation of this rule, is that of a description in a will of a devisee, or of an estate, where it turns out that there are two persons or two estates of the same name and description. The cases in support of this principle are so familiar, that it is only necessery to refer to them. Jones v. Newman, 1 Bla. Rep. 60. Lord Cheyney’s case, 5 Co. 68. Edward Altham’s case, 8 Co. 308. Hampshire v. Peirce, 2 Ves. 216. Partridge v. Strange & al. 1 Plowd. 85. b. Sargent & al. v. Towne, 10 Mass. Rep. 303. 307. Rob. Frauds, b. 1. c. 2. Bac. El. rule 23.

Looking at the facts found in this case, which may reasonably be presumed to have influenced the testator in the devise in question, especially in connexion with the light which is reflected on the subject, by the other parts of the will, there can be no serious doubt that The American Board of Commissioners for Foreign Missions, was the corporation which he intended as the object of his bounty. With regard to the missionary society of the Methodist Episcopal Church, the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the U. S. A. and the Board of Foreign Missions of the Presbyterian Church, the two last were never incorporated, nor was the first until after the execution of the will. They were, therefore, incapable of taking the benefit of a devise under it. Greene v. Dennis, 6 Conn. Rep. 292. That circumstance, of itself, is sufficient, in this case, to set aside any claim that they make. For where there are several societies answering the description of that mentioned in the will, some of which are capable of taking and others not, the law presumes that the testator intended the former, rather than the latter. And there is nothing in this case, which in the least controuls or weakens that presumption. The question, therefore, is between the “ American Board of Commissioners for Foreign Missions,” and “ the General Convention of the Baptist denomination in the United States for Foreign Missions” &c. Both of these societies were incorporated, at the time of the making of the will; and their general objects are the same, and such as to fall within the description of the society mentioned in this devise. In these-respects, their claims are equal. There are no other facts to shew that the General Baptist Convention was contemplated, by the testator, when he made his will. But there are circumstances, which, we think, prove most satisfactorily, that the A. B. C. F. M. was the society he then had in view. At the time of executing his will, as well as for many years previously, he was intimately connected with the A. B. C. F. M., by being a prominent and active member of one of its auxiliary societies, which, was established in the vicinity of the place where he resided, the same year in which the parent board was incorporated, and continued during the life of the testator. The object of this society was to aid the principal society, by raising contributions to its funds. He attended the regular annual meetings of that society; was appointed and officiated, as early as 1815, and for the two successive years, as one of its officers, in the capacity of committee to procure pecuniary subscriptions ; and during this period, from time to time, himself contributed to its funds. In 1816, he paid to the treasurer of the society the amount of the annual subscription required of its members. During the same year, an association of gentlemen auxiliary to the same parent society, was established at the place where he resided, of which, for that and several successive years, he was the treasurer and a collector: and for many years both before and after the making of his will, there was also a female association, auxiliary to the same society, of which his wife was the treasurer and a collector. These circumstances shew, conclusively, that the parent society and its objects were very near his heart; and it is much more rational to believe, that an enterprise, which he had so long and uniformly remembered and cherished by his varied beneficence, would not be forgotten or abandoned, at the moment when he was selecting the final objects of his bounty, than that he should devote that bounty to those for whom he had never manifested any particular regard, with whom he never was in any manner connected, and for whom, it is not to be supposed that his sympathies would be so strongly excited. It is also proper, in ascertaining the motives by which he was probably influenced, to take into consideration the fact that his religious sentiments accorded with those under whose patronage the American Board was conducted ; and that those sentiments would naturally induce him to prefer that society, as the distributor of his bounty, to those whose object it was to disseminate different views. This conclusion is strengthened, by the character of the devises for other benevolent objects contained in the will, (to the whole of which it is proper to look, in ascertaining the meaning of any one in particular,) in which, it will be seen, that he has generally selected such objects as would be the means of diffusing his own particular religious opinions. With respect to the other society, it was.not only established by a denomination of Christians to which he did not belong, but it does not appear that it operated, or had any organization, within this state ; nor indeed, that the testator knew of its existence. We are therefore satisfied, that the A. B. C. F. M. was the person intended by this devise.

It is claimed, however, that this devise is void as to two thirds of the bequest, because it is directed “ to be appropriated for the natives of this land which, it is insisted, the A. B. C. F. M. has no power, by its charter, to do. Whether if this were so, it would render the devise, as to that part, absolutely void, it is not necessary to consider ; because no doubt is entertained, that the propagation of the gospel among the aborigines of this country, is one of the objects for which that society was instituted, and clearly within the powers conferred upon it. It is incorporated “ for the purpose of propagating the gospel in heathen lands.” That expression embraces every portion of the world, the inhabitants of which are destitute of revelation, and is strictly applicable to the Indians on this continent. They are emphatically heathen ; and as completely isolated, in a religious view, from the Christian portions of our country, as the Hottentots of Africa. The word “ lands” is here used, not with reference to their location, but to the religious character of their people. It is true, that the Indian tribes of our country are not, for certain purposes, foreign nations but it does not result, that a religious mission among those tribes may not be a foreign mission: such missions are undoubtedly foreign, as contra-distinguished from domestic ; and in this sense the term is used. There is no reference, however, in the charter to foreign, but only to heathen lands : nor are either “ nations,” or “foreign nations,” mentioned.

4. “ The American Tract Society” established at Boston and not that at New-York, is entitled to the bequest which is given to the society of that name. The former was incorporated before the execution of the will, and therefore capable of receiving the bequest. The latter was not incorporated until afterwards, and after the death of the testator, and had no capacity to take. 6 Conn. Rep. 292. 4 Wheat. Rep. 1. It appears, moreover, that in 1825, the society in New- York, became united to that in Boston, as an auxiliary to it, by which it became merely one of its branches or constituent parts.

5. With respect to the devise to “ the Foreign Mission School at Cornwall, Conn.” it is conceded, that it is void, as that school was not, at the time of the execution of the will, and has never since been, in existence ; unless it must be deemed to be made to the A. B. C. F. M. Although the school was established, by that corporation, it is no part of its constitution, and was only one of its means of operation, which it finally abandoned. If it was the intention of the testator to give that society the benefit of this devise, no reason is perceived why he did not include it in the other devise to that society, in the same manner as he set apart two thirds of that devise for the aborigines of this country. The A. B. C. F. M. are not entitled to take under this devise. Whether a trust is created by the devise, which a court of chancery will protect, by compelling the legal owner to fulfil it, in any form, or supplying a trustee for its execution, it is not necessary here to enquire, as the question before us relates only to the legal title.

6. “ The American Society for ameliorating the condition of the Jews,” is, beyond doubt, intended in the last devise. Its object is most accurately described in it; it was, at the time of making the will, and still is, incorporated; and no other society for a similar purpose, appears ever to have been formed in this country.

7. The devise to the Cornwall School having failed, a question is made, whether that portion of the estate vests in the last-mentioned society, which is the residuary devisee, or in the heirs of the testator. That point was deliberately settled, in the case of Greene & al. v. Dennis, 6 Conn. Rep. 292. where it was held, that the subject of the devise descended to the heirs at law, and did not go to the residuary devisee ; and there is no occasion for reviewing that decision. The same question has since undergone an elaborate examination in the state of New-York, and been similarly decided, in the case of Van Kleeck v. The Dutch Church of New-York, 20 Wend. 457. The authorities and reasoning on the subject are so fully gone into, in those cases, and also in Lingan & al. v. Carroll, 3 Harris McHenry, 333., that it is only necessary to refer to them. As to that part of the estate, therefore, of which the devise is void, it is to be distributed to the heirs, as intestate estate.

8. The debts, funeral charges, and expense of monuments, are to be deducted out of the residuary portion of the estate, that being according to the terms of the will ; but, as there is no provision of that kind respecting the expenses of settling the estate, those expenses must be charged, as in ordinary cases.

The superior court should be advised in conformity with the foregoing opinion.

In this opinion the other Judges concurred.