Parker v. Cowell

16 N.H. 149

Opinion

Gilchrist, J.

Footnotes

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It appears that the testator Eli Metcalf made his will, which was proved on the 1st of September 1835,,by which he gave to his wife the use of his property during her life subject to certain specific legacies, and all the rest and residue of his estate to the American Home Missionary Society, the American Tract Society of Boston, and the American Education Society, share and share alike, to be paid to them within one year from the decease of his wife Elizabeth ; each of those societies to dispose of its share in a way and manner it may deem best for the promotion of its benevolent object.

There is no ambiguity in the words of the devise. The intention of the testator is as "apparent as language can render it, and it is not disputed that-there is a Home Missionary Society, with its place of business in New-York, with regular officers to receive and disburse money in the prosecution of the objects of the association, and that *these objects are of the character and description denoted by the name of the society.

It also appears that the executor did within one year from the death of Elizabeth Metcalf the wife of the testator, pay the sum of $600 in question to an officer of the society regularly appointed, to receive it, and that he has taken a receipt for the same.

But it is contended by the heirs at law, that there was no devisee competent to take, because the society indicated by the terms of the will as such was not incorporated, and because not incorporated was incapable of maintaining an action at law for the recovery of the legacy.

Laying aside for the present the question whether the society for want of a corporate character and existence would meet with insuperable obstacles in maintaining a suit for the recovery of the legacy, and laying aside other inquiries which have been urged relating to the powers of this court, in view of the eleemosynary character of the legacy, to carry into effect the plain intent of the donor, and whether the society is or is not to be considered as a trustee for the administration of the legacy for the uses contemplated in its organization, let us consider whether there is any objection to its competency to take the legacy if it had been given for the sole use of the society, and whether the intention of the testator as indicated by the clear and unequivocal terms of the will, have not been fully executed by the appellant in paying over the money to the society’s servants.

If the purposes of any voluntary association be not illegal, and if it have a distinct and recognized existence, an individuality so that the person of the devisee is not uncertain, what objection is there to the competency of such an association to' receive and hold a legacy given for its own use, without any liability to account any where for the disposition it makes of the legacy ? Suppose a devise to a library association, a lyceum, an engine company, a musical company, or a mercantile copartnership having a recognized existence and consisting of a definite number of individuals, and a payment of the legacy in compliance with the devise, it is difficult to see who there is that can establish a better right than the devisee to hold the property. A person competent to make a will disposes of his property to -individuals associated together for a purpose not immoral, to be by them used according to their own will and for their own purposes, and they receive it, we see no reason why they may not retain it.

Suppose the number was indefinite, of those who composed the society; fluctuating, dependent upon the payment of subscriptions or compliance with other conditions, but united under a well known name, and possessing agents and officers accustomed to conduct the affairs of the association, we see no reason why upon the receipt of money, the person receiving it should not hold it for those who according to the laws and usages of the society are entitled to the enjoyment or to the disposal of it. What these rules and usages are, and whether they are such as ascertain and protect the individual rights of the members of the association, or provide for the effective management of its property by the vote of majorities or by trustees or other agents, or whether, as is not unfrequently .the case, the control of the common property and the particular interest of each member in the property are left somewhat unsettled, it is not the business of the executor to inquire, if there is sufficient in the will to satisfy him that in paying over the money he is executing the intent of the testator as therein expressed.

That the executor did so in the present case we see no room to doubt, and therefore conclude that he was entitled to an allowance of the sum for which he claimed credit in his account as having been paid over to the American Home Missionary Society.

This renders it unnecessary to consider the other controverted items, since by the decision upon the principal question, the appellees appear to have no interest in the fund in the hands of the executor.

The decree of the probate court must therefore be reversed, and the cause remitted for further proceedings.

Parker, O. J., did not sit.