Collings v. Davis

17 Ohio C.C. (n.s.) 221, 1911 Ohio Misc. LEXIS 316

• Court: Cuyahoga Circuit Court
• Decided: June 2, 1911
• Status: Published

Opinion

This was an action to construe a will containing the following provision:

“The surplus money he (the executor) shall apply at the rate of $10 a month during the winter months to buy flour and coal for worthy poor.”

The surplus money mentioned amounts to $18,000.

The common pleas court held that this clause of the will creates a legal charitable trust to be administered by the executor, as trustee, who' is vested with power to apply, distribute and disburse the fund, and incidental authority to select from the class named, to-wit: “worthy poor,” the particular objects or individual beneficiaries of the testatrix’s bounty.

We think this judgment was erroneous.

This clause of the will is incapable-of execution. It clearly means that the executor is to expend $30 or $40 each year in buying flour and coal for the worthy poor; the suggestion that he is to give $10 to each poor person he selects is not sustained by any reading of the plain terms of the will.

Now, the interest on $18,000 at 4 per cent, is $720, so that this fund, after paying out $40, would accumulate at the rate of $680 a year, and yet the plain language of the will is that the principal of the fund shall be expended for the benefit of the worthy poor.

It is clear the testatrix had no idea that the “surplus” of her estate would be so large. She doubtless thought a few hundred dollars would be left which the executor could spend in the manner mentioned, within a very few years, if not in one winter. The direction to expend the principal of the fund does not warrant the creation by construction, of a perpetual and increasing charitable fund, to be administered at the insignificant rate of $40 per year for all time to come.

The two thoughts are contradictory, and so, as said, the will is incapble of execution.

There are other reasons why this clause of the will is invalid; the beneficiaries are not restricted to any locality, but embrace the whole world. The executor might very reasonably take the fund and depart with it to China, there to expend it at the rate of $10 per month, during the winter months, if they have any' winter there, for the benefit of the worthy poor of China, who exist, we are told, in million®

On this point, as well as upon the proposition contended for by counsel for plaintiff in error, that the will gives no power to the executor to select beneficiaries (which we think is well taken), see authorities cited in his brief.

There are cases both ways upon these points, and counsel for the executor has marshalled the authorities sustaining his views of the will in an exceedingly able brief, but our views of the peculiar and ambiguous wording of this particular will preclude our reaching any other conclusion than that the terms of this will can not possibly be carried out.

As there are no disputed questions of fact in the case, it follows not only that the judgment of the common pleas court should be reversed, but that judgment should here be entered in favor of the heir at law.

Judgment reversed and judgment for plaintiff in error.