Brown v. Kelsey

56 Mass. 243

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1848
• Status: Published

Opinion

Wilde, J.

This is a bill of interpleader, brought by the executor of the last will of Jenny Little against her heirs, devisees and legatees, praying for the direction of the court in what manner he is to proceed in the execution of his trust.

By the second clause in the will there is given to Lois Bartlett the use of $700 during her natural life; and the first question to be decided is, whether she s entitled, under this provision, to the yearly legal interest of that sum, as she claims, or whether it is the duty of the executor to invest the same for her benefit, and to apply the annual income thereof in satisfaction of the legacy. And we are of opinion that the latter construction is manifestly conformable to the intention of the testatrix. By the last clause in the will the executor is requested to see that this sum, and other bequests, should be safely invested; and when invested, it is clear, by the express language of the will, that the legatee is entitled to the use or income thereof, whether it should be more or less than the legal interest of the sum invested. Money may at times be safely invested so as to yield more than legal interest; and in such case it would be quite clear that the legatee would be entitled to the whole income; and on the other hand, if the executor could not safely invest the $700 so as to yield an income of six per cent, the legatee could claim no more than the actual income. So if the sum invested should be lost, in whole or in part, the loss must fall on the parties interested in the fund, if it were invested by the executor without fault on his part.

It was argued for this legatee, that the gift over of the fund after her decease was void for uncertainty, and consequently that an absolute property vested in her. But such a consequence would not follow if the gift over were void, but the fund would be liable to distribution among the heirs as intestate property; but we hold that the limitation over is not void, for reasons hereafter to be stated. Nor is there any ground for the argument that the executor is bound to pay over the $700 to the legatee. If the use of a chattel had been bequeathed to her, this argument might he well founded, notwithstanding the limitation over, if such were the intention of the testatrix. But it is expressly made the duty of-the executor to invest the $700, and to pay over the income to the legatee.

Another question was discussed as to this bequest, namely, whether the legatee of the income were entitled to the whole income of the sum invested, or only to themet income, after deducting the expenses of the executor in investing and managing the fund, and paying over the income. On this point, the court are of opinion, that the legatee of the income is entitled to the whole income, and that the executor’s expenses are a general charge upon the whole estate. And so a similar question was decided in the case of Sawyer v. Baldwin, 20 Pick. 378, and the decision is fully supported by the cases there cited.

Another question, as to the construction of the bequest to the Evangelical Congregation Church in" Lunenburg, depends, we think, on the same principles. The use only of $500 is bequeathed, and this sum the executor is directed to invest; and by a subsequent clause in the will it is provided, that if the church should appropriate the amount left to it, contrary to the directions in the will, or if it should neglect to sustain the preaching of the gospel for the space of twelve successive months, the amount appropriated to the use of the church should be appropriated to the use of other religious and charitable enterprises. The direction to the execu tor safely to invest this sum-, was doubtless to secure it for all the purposes to which it was designated by the will. We consider this direction conclusive as to the intention of the t?statrix as to this as well as to the other bequest. The only remaining question, as to the disposition of the personal estate, is, whether the gift and bequest in the residuary clause for the promotion of religious and charitable uses and enterprises is a valid bequest; and we have no doubt that it is.

We consider it quite unnecessary to remark upon the numerous authorities cited by counsel on this point, as they frequently have been under the consideration of this court; and it is now considered as the settled doctrine under the statute of Elizabeth, in regard to charitable uses, which has been adopted in principle, and in substance, in this commonwealth, that an appropriation or dedication of property for ' such uses will be upheld, although there be no specific grantee or trustee. In such cases arising under wills, the executor or heir, as the case may be, becomes the trustee of those for whose use the donation or appropriation is intended, and may be compelled by a court of equity to execute the trust. So it was held in the case of Bartlett v. Nye, 4 Met. 378, 380, after a full consideration of the previous authorities which fully support the decision. So in the case of Washburn v. Sewall, 9 Met. 280, 282, the same doctrine is laid down. In cases of charitable gifts, the chief justice says, “ It is no objection to their validity, that no person is named capable of taking the legal interest; if the object can be ascertained, the want of a .trustee will be supplied by a court of equity.” There is, however, in this case, no necessity for such a supply. The executor, in the first place, held the property in trust, and is now bound to transfer it to the appointees designated by a majority of the pastors composing the Middlesex Union Association, to be disposed of for religious and charitable enterprises as directed in the will.

It has been argued for the heirs at law, that it does not appear with sufficient certainty to what particular charity or charities the property bequeathed was to be applied ; and that no donees or trustees were by her selected to make the application. But if the appointment by the association of pastors was made in pursuance of the direction in the will, as we think it was, then the appointees are entitled to hold the property, and to dispose of it, in the same manner, and for such purposes, as if the bequest had been made to them directly by the will. It was objected that the association was a fluctuating body, and that it does not appear that the associates making the appointment were the same who were so authorized by the will. But it is expressly alleged in the bill, that the appointment was made “in conformity with the direction, and in pursuance of the authority,” contained in the will; and the heirs at law in their answer expressly admit the truth of all the facts set forth in the bill.

We are therefore of opinion that the appointment was duly made, and in conformity with directions in the will, and consequently that the appointees are entitled to the possession of the personal property, to hold in trust, and to manage and dispose of the same, for the purposes named in the will.

Several questions have been discussed by counsel as to the disposition of the real estate; but these questions cannot be decided in this suit. The executor has no interest in the real estate, nor is he authorized by the will to sell or dispose of it, either expressly or by implication. On the contrary, if the same was devised by the will, which the heirs at law deny, the legal or equitable title is vested in the Congregational Society in the town of Shirley, by the appointment of the Association of Pastors designated by the will. And the question of title can be only decided in a suit at law or in equity between them and the heirs at law.