Bristol v. Bristol

5 A. 687, 53 Conn. 242, 1885 Conn. LEXIS 50

• Court: Supreme Court of Connecticut
• Decided: December 14, 1885
• Status: Published

Opinion

Loomis, J.

This case involves the construction of two clauses in the will of Julius D. Bristol and the question of their legality.

The eleventh clause of the will is as follows:

“ I hereby authorize and empower my executrix to disburse and give (in furtherance of my wishes expressed to her at sundry times) from my estate to such worthy persons and objects as she may deem proper, such sums as it is her pleasure thus to appropriate, not to exceed in all the total sum of five thousand dollars.”

Is this a valid gift ? It clearly is not a trust. There is no person or object named, or even hinted, as the cestui que trust. There is no person who could claim in a court of equity an enforcement of the trust. It is a case where, if the five thousand dollars had been given to the executrix to be disposed of at her pleasure, the law would regard the property given as vested in her, while the direction for its use was merely precatory and of no legal force. In such a case the law regards the legatee as taking the gift absolutely and with no enforceable duty as to its use.

But there is no gift to the executrix. She has merely a power of distribution. Nothing vests in her. It is precisely as if no disposition whatever of the fund had been suggested, but the executrix had been empowered to direct how five thousand dollars of the estate should go. It is, in other words, an authority given to a third person to direct how a part of the testator’s property should be disposed of. If good for a part of the estate it would be good for the whole. Would then a will in the following words be a valid one : “ I direct that A. B shall declare how all my property shall be disposed of.”

The supporters of this will say that such a will would be valid, and quote in support of their claim a dictum of Judge Seymour in Wait v. Huntington, 40 Conn., 11, as follows: “ It is familiar law that a testator may confer on executors and on others an absolute power of appointment and disposition over his property.” But the case itself did not call for this remark nor involve the question of its correctness, and it seems hardly probable that the learned judge intended that it should have the wide application given it.

There is a singular absence of all reference to this question in the text books, and we have found no decisions that bear with any directness upon it. In the absence of such authority we should regard such a will as of no legal effect. We think the law never intended to accept as a valid will so vague and indefinite a direction, such a mere authority'. It is in no proper sense a will. It indicates no intent whatever on the part of the testator as to the disposition of his property. It is really a public declaration that he has no such intent. It is a travesty of terms to call such an instrument a will.

The bequest being inoperative, the five thousand dollars appropriated by it falls into the residue. This is the well-settled rule in the case of void bequests of personal property. Greene v. Dennis, 6 Conn., 292; Thayer v. Wellington, 9 Allen, 295; James v. James, 4 Paige, 115.

The remaining question arises under the twelfth clause of the will, which is as follows:

“ I give and bequeath all the rest and residue of my estate of every name and nature, whatever and wherever the same may be situated, unto William T. Bartlett and Edward A. Chatfield, both of the city and county of New Haven, and Edward W. Twitchell of Southington, Connecticut, and their successors to be designated and appointed as hereinafter set forth, as a board of trustees, to hold, invest, reinvest, manage and preserve as a permanent fund, in trust for the uses and purposes and subject to the directions by me herein set forth and for the objects herein indicated, which fund shall be called The J. D. Bristol Benevolent Fund of Southington, Connecticut, and the object of the trust is to provide a permanent fund with a perpetual income, from which income shall be paid the annuities hereinafter given and set forth.”

The testator then gives one hundred dollars a year from the income of the fund to Emeline Cook, during her natural life, and directs that, from the remainder of the income, there shall be paid one half to the New Haven Orphan Asylum, one eighth to the Home of the Friendless in New Haven, one eighth to the Connecticut Humane Society, and the remaining quarter he disposes of by the following clause:

“ And I do hereby authorize, empower and direct my beloved wife, Martha Amelia Bristol, to permanently dispose of, for such charitable purposes as she may deem proper, the other one fourth of said remaining interest, income and profit accruing from said permanent trust fund.”

It is very clear that this is not a gift to the wife herself, which she can take discharged of the trust, as it merely gives her a power to appoint the charitable use. Is it then valid 'as a gift to charitable uses under our statute on that subject?

Whatever might be held o.n this question by the courts of England, or of those states which have adopted the English doctrine on the subject, it is very clear that under our own decisions, which have established a definite rule on the subject in this state, this bequest can not be held valid. It is well established with us that a gift to a charitable use must designate the particular charitable use by making the gift to some charitable corporation, whose charter provides for a charitable use of its funds, or to some particular object or purpose that the law recognizes as charitable. It is enough if the object be mentioned, and the law can see that it is a charitable one; but it is not enough that the gift be merely “to charitable uses” or “to be used in charity,” so long as no selection is made from the long list of recognized charitable objects. And it is not enough that some person is named to whom is given the power of naming the charity. That is the testator’s own matter. It is his intent that is to determine that. If he chooses to leave the matter wholly to the discretion of some person named, he can do so by making the gift to him, leaving him to use his discretion as to the disposition of it. In this case the donee takes absolutely, and the law does not trouble itself as to whether he acts conscientiously in the matter. The testator has chosen to leave the matter to uncertainty and there the law leaves it.

The charitable object, thus required to be named, may be a benefit to a class of persons and therefore uncertain as to the particular persons of the class that are to receive the benefit. This uncertaintjr may make the bequest void, unless there is a power given to some person or corporation to make a selection of the individuals. White v. Fisk, 22 Conn., 50; Adye v. Smith, 44 id., 70; Fairfield v. Lawson, 50 id., 513; Coit v. Comstock, 51 id., 379 ; Tappan’s Appeal from Probate, 52 id., 412. Here the power given the widow is not to select the particular beneficiaries of a class named, but to select the charity itself. We think that, to uphold this bequest, we should have to go beyond the utmost limit to which we have gone in upholding charitable gifts.

The bequest being of such a character, it clearly can not be saved by the act of the widow in making a written designation of the charitable purposes which by it she is authorized to select.

If this gift can not be sustained, then it is claimed that the entire trust fund falls with it.

But the principle to be applied is well settled, that where a trust is for several purposes, some valid and some invalid, it will be supported so far as it is good, provided such part is separable from the rest and no violence will thereby be done to the testator’s general intent. 3 Jarman on Wills, (Am. ed.,) 709; 1 Redfield on Wills, 428; Sears v. Putnam, 102 Mass., 9; Benedict v. Webb, 98 N. York, 460. But the case of Coit v. Comstock 51 Conn., 352, was cited in argument to show that the trust was inseparable. In that case however the annual income of the trust fund was to be expended, so much as might be necessary, in putting and keeping in good order certain burial lots and monuments, and. the remainder for the support of religious services in connection with the ecclesiastical society that was named as trustee. The bequest for the care of the burial lots was invalid, but it was not separable for the reason that it was impossible to tell how much of the income would be required for the burial lots or that it might not take the whole and leave nothing to be applied to the valid charity.

In the case at bar it is admitted that if the residue were given, in different portions, to different objects, each would be independent of the others, and a failure of any one of them would not affect the others. But it is said that here the gift is of different portions of the income only, so that the shares, being shares only of a common income, can not be severed in advance, or in any other way except by a division of the income. The question raised here is not without practical difficulty. It is of course out of the question that the quarter of the income should in perpetuo be distributed to the heirs at law. If the quarter is set apart for them at all, it clearly must be in the principal. The testator, whose intent is to govern so far as practicable, clearly intended that the benefit of three quarters of the fund should go to the charitable institutions named. This plain intent clearly should not be allowed to fail if there is any way by which the quarter share of the heirs at law in the income can be severed from the rest. This can only be done by a division of the principal of the fund, setting aside for distribution as intestate estate one quarter of it, and preserving the other three quarters for the trust fund. This can do no possible injustice to any party interested, unless the part set to the heirs should increase in value, making the income from it larger in proportion than that from the trust fund, in which case the charitable institutions would be losers; or unless the trust fund should increase disproportionately in value, making a corresponding loss to the heirs at law. But the loss or gain on either side would probably be very small, while the chances .are equal, and the advantage to both the trust fund and the heirs in thus severing their interests would be very great.

The matter stands at this point precisely as it would if a testator should direct that his property go into the hands of trustees and the income be divided into ten equal parts and paid over annually to “ the following charitable corporations, one part to each;” and should then by mistake name only nine charitable corporations, leaving the tenth part undisposed of and therefore intestate. Now must all these nine charitable bequests, all legal in themselves, fail, simply for this oversight ? The testator’s one great intent was to give his property in charity, and not to give a dollar to his heirs, who were perhaps remote collaterals. Shall this great intent wholly fail, and the other non-intent completely succeed ? This would be doing great injustice to the testator and great despite to his intent. What is the technical difficulty ? Simply this—that if the fund is at once divided into ten parts and one part given to the heirs at law, these heirs may not get an exact tenth, or the other nine tenths may some time or other yield more than nine tenths of the income. If they yield less that is of course the loss of the charitable societies; but that is of no consequence, as they do not complain. The only complaint is from the heirs at law—that they may not get the full tenth. But the heirs have this advantage—they get their tenth of the fund down, at once, and at market value ; so that they can at once turn it into money if they choose ; while the other nine tenths are to be kept a long time and may in part be lost or reduced in value. In the whole matter the heirs have the advantage.

Now can it be that this small risk—not only very small, but very remote and merely speculative, is to be allowed to defeat the great prevailing, manifest, legal intent of the testator, and that too in favor of heirs at law to whom it was his clear intention to give nothing? Such a result would seem to be a reproach to the law.

It is true that this is a division of the principal, while the testator, in the case we are supposing, intended only a division of the income. But it is well settled that an absolute gift of all the income of property is a gift of the property itself. The donor in such.a case retains nothing, and gives no interest to any other person than the donee. In the ease before us the departure from the exact intent of the testator is only as to the mode of carrying out his cherished object, not a substitution of one object for another. There is nothing of the ey pres doctrine in it.

We think therefore that one quarter of the residue now devoted to the trust fund, should, upon a fair estimate of values, be separated from the trust fund and distributed as intestate estate to the heirs at law.

A question of some practical difficulty arises with regard to the annuity of one hundred dollars in favor of Emeline Cook, which is charged for her life upon the entire trust fund. It is clear that the reduced trust fund should pay but three quarters of this and that the other quarter should be paid from the quarter of the residue that goes to the heirs. This annuity is charged upon the whole residue and therefore as much upon the quarter that goes to the heirs as upon the three quarters that goes to the trust fund. Unless the parties agree upon some arrangement that shall dispose of this small charge, the trustees should retain, either the whole of the residue until Mrs. Cook’s death, or an ample amount from the quarter distributed to the heirs to yield with certainty the sum of twenty-five dollars per year, the same to be distributed to the heirs at law upon the death of Mrs. Cook.

The claim is made in behalf of the .charitable institutions taking under the residuary clause, that this quarter of the income, or of the principal if we so treat it, upon the legacy in question failing, goes into the residue, thus preserving the trust fund unimpaired and increasing their beneficial interest under it. But this clearly can not be so. The residue spoken of in the will is the residue after the payment of the preceding bequests, and clearly can not, either in law or reason, take back into itself a part of the residue itself that has dropped out by not having been legally disposed-of. It necessarily becomes intestate estate.

Carpenter and Stoddard, Js., dissented from so much of the opinion as held the bequest of the fourth of the income of the trust fund to charitable purposes to be designated by the widow invalid, but concurred in holding that the bequest of the other three fourths of the income to the charitable societies named was valid. Park, C. J., and Granger, J., dissented as to the validity of the bequest of the remaining three fourths of the income of the trust fund. All the judges concurred in the opinion except as to the points of dissent noted.