White v. Howard

38 Conn. 342

• Court: Supreme Court of Connecticut
• Decided: September 15, 1871
• Status: Published

Opinion

Foster, J.

This bill is brought by the executors and trus- • rtees appointed by the last will and testament of the late William Bostwick, to procure a construction of that instrument, and to remove certain doubts which it is alleged have arisen as to the validity and effect of some of its provisions. The will bears date May 23, 1860, and there are two codicils annexed to it, one dated April 1,1861, the other August 16, 1862. The testator died on the l-6th of April, 1863, and the will was admitted to probate in the district of New Haven on the 9th of June, 1863.

Some of the questions suggested for our decision involve little or no difficulty; indeed there áre very few about which we have entertained serious doubts. On one, the gift to the Southern Aid Society, we have held varying opinions, and are scarcely able, even now, to determine it with unanimity and to our own entire satisfaction.

The testator, Mr. Bostwick, at the time .of his death and for some time previous thereto, had his domicil at New Haven. He was a widower, and left no parents, no brother or sister, no descendants of any brother or sister, and but one child, a daughter about fifteen years of age at the time of his death. The will is very carefully, though not very concisely, drawn; every probable, almost every possible, contingency which could affect the disposition oí the property made by it seems to have been anticipated, and every such contingency specifically provided for. There was evidently much painstaking on the part of the testator to dispose by his will of all and whatsoever property he might die possessed of, and to «leave nothing on which, in any possible event, our statute of distributions should operate as intestate estate. It is plainly our duty so to construe this will as to effect this purpose, if we can do so without contravening well established principles of law. And we shall give to those rules of construction which aid us in getting at the intent of the testator, and the authorities which sanction the carrying out of that intent, far more consideration than to the wisest maxims or the weightiest precedents which seem to determine, that intent by their own inherent power. The application of such maxims and precedents to last wills produces, not unfrequently, results which were never in the mind oí the testator.

In the early clauses of this will, and before proceeding to dispose of the bulk of his estate, the testator makes a number of specific bequests to certain members of his household, and to various benevolent and religious societies, amounting in the aggregate to some $10,000. These, excepting two legacies subsequently revoked by a codicil and the gift of $1000 to the Southern Aid Society, have been paid by the executors; no question as to the propriety of such payments being now or having been at any time made. All the rest, residue and remainder oí his estate both real and personal, of every kind and description, the testator then gives to Henry White, Johñ P. Crosby and Pelatiah Perit, and the survivors and survivor of them, as joint tenants in fee simple, as a fund, upon the trusts and for the purposes which he then proceeds to specify. The appointment of Mr. Perit was subsequently revoked, and Joseph Sampson substituted in his place. He declined to act, thus leaving Messrs. White and Crosby sole trustees, as well as sole executors. Under this trust his daughter seems to have been the principal object of the testator’s bounty. The trustees were to pay to her guardian during her minority so much of the income of the estate as should be necessary and proper for her support, maintenance and education; and after she attained her majority to pay her the whole of said income, during her natural life, if she desired it. The event of her death was foreseen, Snd specifically provided for in four several contingencies. First, should she die and leave a husband and children surviving her; second, should she leave a husband surviving her, but no children; third, should she leave children, but no husband surviving her; fourth, should she leave neither husband nor children surviving her. This last contingency has actually occurred. The daughter died on the 30th of August, 1865, leaving neither husband nor children, having never been married. The real question therefore is, can the provisions of this will made dependent upon this contingency be carried into effect ?

It is obviously unnecessary to decide or consider any of the questions dependent upon other contingencies which have not arisen. _ We deem it proper to remark however in this connection, -without deciding whether the provisions of the will dependent on other contingencies, such as the accumulation of the estate, the power of appointment given to the daughter to direct to whom, and in what portions, at what times, and in what estates, a portion of the residuum should be given and paid, be valid or not, that the will is not made void, even if those provisions are invalid. In contemplation of a state of facts and circumstances which now actually exist, the testator directs that the whole of said trust fund or property shall be disposed of as follows: $2,000 to the New Haven Orphan Asylum; $5,000 to the American Sunday School Union in Philadelphia; $5,000 to the Society for the Promotion of Collegiate and Theological Education at the West; $10,000 to the American Bible Society in New York; and the residue of said trust fund or property to be divided equally between the following six Societies: the American Tract Society in New York; the Southern Aid Society ; the American and Foreign Christian Union Society; the American Colonization Society; the Trustees of the Board of Domestic Missions of the General Assembly of the Presbyterian Church in the United States of America; and the Board of Foreign Missions of the Presbyterian Church in the United States of America. If these bequests are legal and valid, and are carried specifically into effect, all questions arising under this will are necessarily disposed of, for the whole estate will then have been distributed. We proceed therefore to consider these several clauses.

As to the four societies named above to whom specific pecuniary legacies amounting to $22,000 are given, no question seems to have arisen. They are not made parties to the bill, and do not appear in the case. We suppose no-objection is made to their receiving severally the sums bequeathed to them.

Of the six societies to which the residue of said trust property is given, five of them, all but the Southern Aid Society, were incorporated at and before the time of the testator’s,, death. The Southern Aid Society was not then incorporated, but became so in October, 1866. As to these five ineorporated societies, we are of opinion that they take respectively each one sixth part of the residuary portion of this estate.

Three of these societies, the American Tract Society, the Board of Foreign Missions of the Presbyterian Church, and the American and Foreign Christian Union Society, were incorporated by the state of New York. The American Colonization Society was incorporated by the state of Maryland, and the Board of Domestic Missions of the Presbyterian Church, by the state of Pennsylvania. The Board of Foreign Missions of the Presbyterian Church, the American Colonization Sociciety, and the Board of Domestic Missions of the Presbyterian Church, are expressly authorized by their charters of incorporation to take by devise. No doubts are expressed that the gifts to these corporations are good and valid.

As the American and Foreign Christian Union Society was incorporated under and in pursuance of the provisions and requirements of the act of the legislature of the state of New York passed April 12,1848, and the acts amendatory thereof, it is claimed that that society is incapable of taking more than one-fourth of one-sixth of the testator’s estate. The law referred to provides that no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation, (meaning any benevolent, charitable, scientific, or missionary society,) more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-fourth. The testator left a daughter, but this devise or bequest was given to take effect only in the event of her death without issue. That event having happened, we perceive no restraint upon the power of this society to take the specified one-sixth' of the residuary estate. The object of this law, which was doubtless intended to protect parents, wives and children to a certain extent, is not in the slightest degree frustrated by giving full effect to this provision of the will. The Supreme Court of New York, having recently had this precise question before them in this very case, decided that this society was entitled to one-sixth of the residuary estate situated in New York, and the Court of Appeals affirmed that decision. "Besides, we do not regard tliis law as a part of the charter of the corporation, but only as a statute of that state restraining the right of corporations to take by devise within but not without the state. We treat this question more fully in considering the claim of the Tract Society.

•The American Tract Society and the Southern Aid Society are the only societies now remaining of the six to which the residuary estate was given, whose rights under this will remain to be considered. It is asserted that the American Tract Society can take neither real or personal property under this ~~ will. That it cannot take real, because its charter of incorporation, granted by the state of Mew York, does not confer the power of talring by devise; that it cannot take personal, because the charter provides that the net income of said society arising from real and personal estate shall not exceed the sum of $10,000 annually. This limit it is claimed has been reached and exceeded, and so the capacity of the society to take property is exhausted. This society was incorporated by a special act of the legislature of the state of New York, passed May 26,1841. The third section of its charter provides that the corporation shall possess the general powers, and be subject to the provisions, contained in title 3d of chapter 18 of the first part of the revised statutes, so far as the same are applicable and have not been repealed. The title and chapter referred to enumerate the powers of corporations, and the clause which bears directly upon this subject reads thus: “ to hold, purchase, and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” This charter was amended by the legislature of New York on the 31st of March, 1866, but as this was after the death both of the testator and of his daughter, that amendment need not be particularly con- ' sidered, as it cannot materially affect the question involved. | Now it is manifest that this corporation has express power 1 by its charter to hold, purchase and convey real and personal 1 estate, for specified purposes and to a limited amount. There is no express power to take by devise, nor is //the power so to y lake expressly prohibited. We suppose there could be no ' doubt that this corporation could take by devise in New York, if the Statute of Wills of that state empowered corporations generally to take in that manner. The English Statute of Wills, passed in the tíme of Henry VIII, authorized every person having a sole estate in fee simple of any manors Ac., “to give, dispose, will, or devise, to any person or persons, except to bodies politic and corporate, by his last will and testament in writing, or otherwise by any acts lawfully executed in his lifetime, all his manors Ac., at his own will and pleasure, any law, statute, custom, or other thing theretofore had, made, or used to the contrary notwithstanding.” Thus corporations, by express exception in these statutes, were not enabled to take lands directly by devise in England, and the Statute of Wills of the state of New York makes the same exception.By that statute it is enacted, that all persons, except idiots, persons of unsound mind, married women, and infants, may devise ’ their real estate by a last will and testament duly executed Ac. “ Such devise may be made to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise.” 8 N. Y. Rev. Stat., 138, (5th ed). This corporation therefore, prior to the recent amendment of its charter, could not take by devise in New York, and such is the decision of their Supreme Court and Court of Appeals in this very case. And so it is earnestly con- ^ tended that it cannot take by devise in Connecticut. We yield readily to the doctrine laid down in this connection in regard to corporations; indeed it is too thoroughly established to be doubted or questioned. That doctrine perhaps is no where better stated than in the case of Mead v. Providence Ins. do., 2 Cranch, 127, by the then illustrious head of the Supreme Court of the United States, the late Chief Justice Marshall. “ It [a corporation] may correctly be said to be precisely what the incorporating act has made it; to derive V all its powers from that act, and to be capable of exerting its faculties only in jfche manner which that act authorizes.” Now this corporation stands at the har of this court claiming the right to take lands within our territory by devise. It is clothed with such powers as have been conferred by its charter. Those, a portion of them, as we have seen, are to hold, -- purchase, and convey real estate. It is not expressly authorized to take by devise, nor is it prohibited from so taking. Can it then take by devise ? Not in New York, as we have seen. Therefore not in Connecticut, say the counsel for the ( heirs at law, for being a New York corporation, and by the | law of that state devoid of power to take by devise, no argu- j ment is needed to show its inability to take by devise in Con-< necticut. This conclusion is too hastily drawn. If the inability to take by devise arose out of a prohibitory clause in the charter, the conclusion would be legal and logical. But the inability does not so arise. There is no prohibition in the charter; the inability is created by the New York Statute . of Wills, expressly excepting corporations from taking by devise. Now this corporation brings with it from New York its j charter, but it does not bring with it the New York Statute j of Wills and cannot bring it to be recognized as law within [ this jurisdiction. There is an obvious distinction between an \ incapacity to take created by the statute of a state, which is \ local, and a prohibitory clause in the charter, which every- \ where cleaves to the corporation. The reasoning is fallacious, not recognizing this distinction. There being no prohibition in the charter, and the power to hold and convey real estate being expressly given, we must look to our own statutes and laws, and not to those of New York, to determine whether or not this corporation can take by devise in Connecticut.

The state of New York has partially adopted the policy of England in regard to devises to corporations, though the English statutes, usually called the statutes of mortmain, have not been reenacted in that state. Those statutes began with Magna Charta, in 9 Henry III, and embrace a succession of„ acts down to and including 9 George II. They were intended to check the ecclesiastics of the Roman church from absorbing in perpetuity, in dead clutch, all the lands of. the kingdom, and so withdrawing them from public and feudal charges. > Shelford on Mortmain, 2. By the statute of 43 Eliz., ch. 4, known as the Statute of Charitable Uses, lands may be devised to a corporation for a charitable use, and the court of chancery will support and enforce such devises. Whether a court of equity has power to execute and enforce such trusts, as charities, independent of any statute, is a question which has been much discussed, and very high authorities can be quoted both in favor and against the exercise of such a power. We think the later and better opinion to be in favor of an original and necessary jurisdiction in courts of equity as to devises in trust for charitable purposes, when the general object is sufficiently certain, and not contrary to any positive rule of law. It is unnecessary however to decide this question, for in this state we have no statutes of mortmain; no exception in our Statute of Wills prohibiting corporations from taking by devise; aliens, resident in this state or in any of the ; United States, may purchase, hold, inherit, or transmit real h estate, in as full and ample a manner as native born citizens; their wives are entitled to dower; their children and other lineal descendants may inherit; and we have besides a statute, passed in our colonial days in 1702, in effect reenacting the statute of 43 Elizabeth, and containing indeed more liberal and * comprehensive provisions to sustain devises of this description than are contained in the 43 Elizabeth. That act provides, that “ all lands, tenements, or other estates, that have been or shall be given or granted by the General Assembly, or any town or particular person, for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall be given or • granted, according to the true intent and meaning of the grantor, and to no other use whatever.”

We therefore entertain no doubt that the American Tract Society can take by devise in this state. As to the other objection, that having an income greater in amount than is allowed by its charter it has exhausted its power to take, it suffices to say that no such fact is found by the very competent committee whose report is on the record. A limitation on the net income from the real and personal estate is not a limitation on a bequest or devise; and we are not satisfied that this inquiry can be legitimately made collaterally in a proceeding of this sort. Nor do we assent to the claim that the burden is on the society to show its capacity to take in this respect. In Ex Parte Pennsylvania Iron Co., 7 Cow., 540, it was held, that where the restraint on the right of purchase was imposed by the charter in a proviso, it was incumbent on the party objecting to the purchase to bring the case by proof within the proviso.

But supposing that this organization as a corporation has exhausted its capacity to take, has forfeited its charter, or that by its charter it never had power to take by devise, still it would under any of these circumstances be entitled to the rights and privileges of a voluntary association of individuals. The treasurer of the organization is well known, his name is given in the report of facts, he has for many years acted uninterruptedly in that capacity, and is still so acting. Now under this will we think he may. take as trustee in trust for this association, if it is unable to take as a corporation, having exhausted its capacity to take, or if as a corporation it never had capacity to t.ake by devise. Such is the clear and positive direction of this testator in the 13th article of this will.

The claims of the Southern Aid Society alone remain to be considered. It appears from the finding that this society was formed by a charitable association of individuals in September, 1853, for the purpose of diffusing gospel truth in the southern and south-western states, by the agency of ecclesiastical organizations there existing. They adopted a written constitution for their government; they had an office in New York city, held annual meetings, elected the officers required by their constitution, and the operations of the society were actively and regularly carried on from its formation in 1853, until they were interfered with by the breaking out of hostilities in the spring of 1861. On the 23d of April of that year the executive committee of the society held a meeting in New York city, at which they passed certain resolutions prefixed by a preamble. The preamble sets forth that the unfriendly relations existing between the north and the south would ' necessarily embarrass the action of the society in its work of relieving the necessities of missions and missionaries who were dispensing the gospel in the southern portion of our land. They resolved therefore, among other things, that “ we now deem it advisable to suspend its operations, and do hereby suspend them, until our civil commotions shall cease, or until in some other way the indications of Providence shall beckon us forward.” Active operations of the society ceased substantially from this time, and no meeting was held until the 11th of October, 1865. That meeting was called by a circular dated September 20th, 1865, signed by a number of the officers and members of the society who composed the executive committee. The call stated that it had become a practical question whether the society ought not to resume operations, and the object of the meeting was to consider the expediency of reorganization, and such other purposes as might be deemed proper and suitable for the occasion. At the meeting on the 11th of October, 1865, a statement of the financial condition of the society was made by the treasurer, Gerard Hallock, Esq., from which it appeared that the amount of money received between the date of the last annual meeting, November 26, 1860, and the suspension of the society’s operations by reason of the war, had been expended, and that the society was out of funds and out of debt. As the constitution required the officers of the society to be elected at the annual meeting, and as the time for that meeting was fixed for the last Monday in Novémber, the committee was directed to convoke the annual meeting at that time. On the 27th of November, 1865, the last Monday in the month, the meeting was held, and the proper officers of the society duly chosen. Lucius Hopkins, Esq. was chosen treasurer, in place of Gerard Hallock, Esq., resigned. Meetings of the association continued to be held thereafter from time to time, and in October, 1866, by complying with the requirements of the statute law of the state of New York of April 12,1848, said association became incorporated. Lucius Hopkins has continued to be since November, 1865, and now is, the treasurer of said society.

Was this association dissolved, dead, as an organization, in consequence of the action of the executive committee above stated in the spring of 1861, and the subsequent suspension of active operations from that time till the autumn of 1865 ? We have entertained doubts on this question, and they are not entirely removed, but we have on the whole come to the conclusion that the society was not dissolved; it was not dead from and after the spring of 1861. ‘All its active operations in the southern portion of our country, its chosen field of labor, were necessarily suspended, for there could be no lawful intercourse between the northern and southern sections of our Union. A flagrant civil war was raging. The vote looking towards a dissolution, if any vote has that aspect, was not the vote of the society, but only of the executive committee. The power of that committee to dissolve the society may well be questioned; no such power was granted them in the constitution, nor did the society contemplate the exercise of any such power at the time of their appointment. The language of the resolution passed by them, fairly interpreted, though it contemplates a suspension of operations, clearly an imperative necessity, does not look towards a dissolution of the society. It directs a suspension “ until our civil commotions shall cease, or until in some other way the indications of Providence shall beckon us forward.” The Supreme Court of New York in trying this case found” that this society continued in existence, and the Court of Appeals, by Grover, J., says, “ that finding is conclusive upon this court.” We should not say that this finding is conclusive upon this tribunal, but in view of the fact that the report of the committee in the Superior Court does not pass upon this question, the finding of the court in New York is entitled to great weight. The committee does find that the society had disposed of its funds and ceased from active operations before January 8th, 1862, and from the facts above stated it appears that Mr. Hallock made his report as treasurer at the meeting of the society in November, 1865. We think it reasonably clear that the testator considered this society in existence in August, 1862, when he made a codicil to his will. Had he not so considered it, it is scarcely to be supposed that he would not have made a change in his will. It is .quite true that his opinion upon the subject could not control the fact, but it is valuable as an item of evidence, going to show that the society, though its action was suspended, was still regarded by its members and an earnest and munificent friend, as living, not dead.

But if this association had been dissolved, and were now out of existence, dead, there would still remain this bequest and devise to be disposed of. - The gift was not to the society for their benefit at all. The society was the trustee, not the cestui que trust—the instrumentality, not the beneficiary. The objects of the testator’s bounty are still living, and will live as long as human beings require moral and religious training, and their necessities were never greater or more pressing than now. This is a charity which a court of equity is bound to uphold if practicable. The only difficulty is whether the trust is sufficiently certain and definite to be executed by the court. We look into the constitution of the Southern Aid Society, and find the purpose to be “ the diffusion of gospel truth in the southern and south-western states, to be accomplished under the direction of ecclesiastical bodies, or missionary organizations of an evangelical character, existing within said states.” It is unfortunately true that there is a wide difference between the many Christian sects and denominations of our time as to what constitutes “ gospel truth;” its teachers do not yet see eye to eye, and as we happily have no state religion, it might embarrass the court to appoint a trustee who would be called on to decide the question. Says Daggett, J., in giving the opinion of the court in Bull v. Bull, 8 Conn., 51, “ if it [the devise] can by possibility be upheld, then it never can be pronounced void for uncertainty.” After all, this is no more uncertain than our own statute of 1702 which we have quoted above; “for the maintenance of the ministry of the gospel” is one of the clauses of that statute. If this devise is void because of the uncertainty of the term “ gospel truth,” we think this provision of the statute must be void for the' same reason. We should hesitate to pronounce a decision declaring one of the clauses in this ancient statute void for uncertainty.

But we are relieved from any difficulty as to the uncertainty of this devise, by the fact found by the committee that in October, 1866, said association was duly incorporated under the name of the Southern Aid Society, and that Lucius Hopkins, since November, 1865, has been and now is treasurer of said society. There is no difficulty in paying over to him this bequest, and in conveying to him the sixth part of the residuum of this estate according to the provisions of this will. He is in effect the trustee designated by the testator.

No difficulty arises in this case on account of the descent of the fee of this estate to the heirs at law. On the death of the testator the legal title was vested in the trustees by the express terms of the will. That title was not divested by the death of the daughter, nor by any subsequent event. It is not in abeyance, a legal term not remarkable for any definite idea conveyed by it, even when aided by the phrases in gremio legis, or in nubibus, which are frequently added by way of explanation. The legal title is still in the trustees, and the money legacies payable to the four societies, amounting to $22,000, and the legacy to the Southern Aid Society, amounting to $1,000, being paid, the trustees will then transfer and convey the residuum of the estate to the six societies named in the seventh article of said will, one-sixth to each; the payments and conveyances to be made to the respective treasurers of said societies.

In arriving at this result we feel confident that we carry out the intent of the testator, and we are not aware that in doing so we have violated any established rule of law. It was long since remarked by a distinguished judge in England, that men’s deeds and wills, by which they settle their estates, are the laws that private .men are allowed to make, and they are not to be altered even by the king in his courts of law or conscience. The first clause in our statute on this subject is, “ All persons of the age of twenty-one years and of sound mind may dispose of their real estate by will.” "We must carry into full and complete effect the intention of the testator, in order to give effect to this statute. This we think we have done, and we have applied the rules of construction .recognized and acted upon in this court and elsewhere. We refer to a few cases only, and those in our own state. Bull v. Bull, 8 Conn., 47; American Bible Society v. Wetmore, 17 id., 181; Treat’s Appeal, 30 id., 113.

The Superior Court is advised to pass a decree in this case in conformity with the rules here laid down.

In this opinion the other judges concurred.