Howe v. Wilson.

NOTE BY THE REPORTER.- See Webster v. Morris, 66 Wis. 466; s. c., 57 Am. Rep. 909; "for the relief of the resident poor in a certain village,” held, valid. To" establish a school for the education of young persons in the do-, mestic and useful arts." Same case. Held, valid. For such charitable and religious purposes and objects, and in such sums and in such manner as will in his judgment best promote the cause of Christ," held, invalid. Maught v. Getzendanner, 65 Md. 527; s. c., 57 Am. Rep. 252. "For the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid," held, invalid. Kent v. Dunham, 142 Mass. 216; s. c., 56 Am. Rep. 667. For testator's "next of kin who may be needy," held, invalid. Fontaine's Adm'r v. Thompson's Adm'r, 89 Va. 229; 8. c., 56 Am. Rep. 588. "To be used at discretion by the selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans, residing in B.," held, valid. Beardsley v. Selectmen of Bridgeport, 53 Conn. 489; s. c., 55 Am. Rep. 152. "For such charitable institution for women in the city of Chicago as he may select," held, valid. Mills v. Newberry, 112 Ill. 123; s. c., 54 Am. Rep. 213. For a home “for aged, respectable, indigent women who have been residents of New London," held, valid. Coit v. Comstock, 51 Conn. 352; s. c., 50 Am. Rep. 29. "To be distributed by them (executors) after my decease among my relations, and for benevolent objects, in such sums as in their judgment shall be for the best,' held, valid. Goodale v. Mooney, 60 N. H. 528; s. c., 49 Am. Rep. 334. For the suppression of the manufacture and sale of intoxicating liquors, held, valid. Haines v. Allen, 78 Ind. 100; s. c., 41 Am. Rep. 555. "To assist, relieve and benefit the poor and necessitous persons, and to assist and co-operate with any such charitable, religious, literary and scientific societies and associations, or any or either of them, as shall appear to the trustees best to deserve such assistance or co-operation," held, valid. Suter v. Hilliard, 132 Mass. 412; s. c., 42 Am. Rep. 444. For "the education of the scholars of poor people" of a certain county, held valid. Clement v. Hyde, 50 Vt. 716; s. c., 28 Am. Rep. 522. "Among such Roman Catholic charities, institutions, schools or churches in the city of New York," as a majority of the trustees should select, and in such sums as they should think proper, held, valid. Power v. Cassidy, 79 N. Y. 602; 8. c., 35 Am. Rep. 550. "For the purchase and distribution of such religious books as they shall deem best," held, valid. Simpson v. Welcome, 72 Me. 496; 8. C., 39 Am. Rep. 349. To "distribute to such persons, societies or institutions as they shall consider most deserving," held, valid. Nichols v. Allen, 130 Mass. 211; s. c., 39 Am. Rep. 445. For any and all benevolent purposes that he may see fit," held, void. Adye v. Smith, 44 Conn. 60; s. c., 26 Am. Rep. 424. 'Among such incorporated societies organized under the laws of the State of New York or the State of Maryland, having lawful authority to receive or hold funds upon permanent trusts for charitable or educational uses," as the trustees might select, and in such sums as they should determine, held, void. Pritchard v. Thompson, 95 N. Y. 76; s. c., 48 Am. Rep. 9. To aid indigent young men" of a certain town "in fitting themselves for the evangelical ministry," held, valid. Trustees, etc., v. Whitney, Conn. Sup. Ct., Jan. 26, 1887.

44

Howe v. Wilson.

In the last named case the court said:

The gift over to the second charitable use is not void for uncertainty. It is to aid indigent young men of said town of Mansfield in fitting themselves for the evangelical ministry.' These supplied, and a surplus existing, that is to go ‘in aid of other indigent young men in this State' fitting for the same ministry. Neither of the words 'indigent' or 'evangelical' is of rare use or hidden meaning. They are quite within ordinary intelligence, and point with a sufficient degree of certainty to the individual to enable the statute of charitable uses to distinguish him from all others. It is a sufficiently accurate statement in this connection to say that they describe a man who is without sufficient means of his own, and whom no person is bound and able to supply, to enable him to prepare himself for preaching the gospel. The trustees are the persons who for the time being hold office as selectmen of a town - an office of continuous duration. To them the donor has given power, and upon them imposed the duty of determining the persons who meet the specified requirements and who are to become beneficiaries. There are persons to determine and a rule for their guidance. These constitute a valid foundation for charitable use."

In Hunt v. Fowler, Sup. Ct. Ill., June 17, 1887, a will contained this residuary clause: "All the rest and residue of my estate, including that which may lapse for any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed among the worthy poor of La Salle, in such a manner as a Court of Chancery may direct." Held, that this created a valid charitable trust, under the control of chancery, and was not void for uncertainty in the beneficiaries. The court said: "The entire contention in this case arises upon the construction, validity and effect of this residuary clause of the codicil. It is insisted this clause is void for uncertainty as to the beneficiaries.

"This is not a bequest to charity generally, or to the poor generally, but to the worthy poor of the city of La Salle. The class here is definite - the worthy poor of the city of La Salle - but the individuals of the class to whom the bounty is to be distributed are uncertain. There is always this uncertainty as to individuals, in the case of public charities, and it is this feature of uncertainty which distinguishes public charities from private charities, charitable trusts from private trusts; and to hold charitable gifts to be void because of such uncertainty is to reject this whole distinctive doctrine of charitable trusts. 2 Redf. Wills., 544 (66).

"In the case of a charitable bequest it is immaterial how vague, indefinite and uncertain the objects of the testator's bounty may be, provided there is a discretionary power vested in some one over its application to those objects. Domestic & F. M. Soc.'s Appeal, 30 Penn. St. 425; Perry Trusts, § 732. It is denied that there is any such discretionary power here given, and White v. Fiske, 22 Conn. 31, is cited in support of such denial. The bequest in that case was: Any surplus income that may remain, to the extent of $1,000 per annum, I direct to be expended by my said trustee for the support of indigent, pious, young men preparing for the ministry in New Haven.' The decision was that the gift was void, as the objects of the benefaction were indefinite, and that no power was conferred on the trustees to make them definite by

Howe v. Wilson.

selection. This case, though meeting with seeming approval in Grimes' Ex'rs v. Harmon, 35 Ind. 198, has been disapproved by other high authorities. See Perry Trusts, §§ 713, 720, 748, note 1; 2 Redf. Wills (2d ed.), 541, note; Hesketh v. Murphy, 26 N. J. Eq. 304. The latter case especially speaks of White v. Fisk, as a case not likely to be followed.

་

"In Hesketh v. Murphy, the testator's will empowered and directed the trustees to employ the annual income of the fund for the relief of the most deserving poor of the city of Paterson aforesaid, forever, without regard to color or sex; but no person who is known to be intemperate, lazy, immoral, or undeserving, to receive any benefit from the said fund.' It was objected that the gift could not be applied to its objects and was void, because the will did not confer upon any one the power of ascertainment of the individuals who should receive the benefit of the bequest. But the court held that the power given the trustees by the will to distribute the fund carried with it, by necessary implication, the power to select the beneficiaries from the designated class, and upheld the bequest. We entirely agree with the criticism there made by Chief Justice BEASLEY upon the case of White v. Fisk, that there was a mistaken assumption on the part of the court in that case that there was no power to select the objects of the charity lodged by the testator in the trustee; that when a power is conferred on the trustees to distribute the fund to members of a class, such members having certain qualifications which can be ascertained only by the exercise of judgment and discretion, as the act of distribution cannot be performed except after such ascertainment of the particular beneficiaries, the principal power to distribute the money carries with it the incidental and necessary power of selection; and this, upon the ordinary doctrine, that when one act is authorized to be done by a trustee or other agent, every authority requisite to the doing of such act is by intendment of law comprised in such grant or power. See Pickering v. Shotwell, 10 Penn. St. 23, that the power in the trustees to act at its discretion need not be expressly given, if it can be implied from the nature of the trust. In the later cases of Erskine v. Whitehead, 84 Ind. 357, the decision in Grimes v. Harmon, does not seem to be approved in its full extent.

"In Heuser v. Harris, 42 Ill, 455, the bequest of money was 'to the poor of Madison county,' the interest only to be used, with no appointment of a trustee. As the County Court of Madison county was charged by law with the support of the paupers of the county, it was held in that particular case that the poor of the county were its paupers, and that the fund should be held by the County Court to be applied for the latter's support. It is not to be the inference from that case that a charitable bequest to the poor necessarily means to paupers, and that the trust is only to be executed by somebody charged by law with the support of paupers. A bequest in trust for the poor inhabitants of a particular place, parish, or town is a charitable trust for the poor not receiving parochial or municipal aid and relief as paupers, on the ground that the charity is for the poor, and not for the rich, and if it was applied to the main tenance of those supported by the parish, town, or county, it would relieve wealthy tax payers from their taxes, and not materially aid the poor.' Perry 'Trusts, § 698.

Howe v. Wilson.

"It is said in Redf. Wills (2d ed.), 805, that some of the American cases have gone great lengths in carrying into effect the intention of the testator when there was great indefiniteness in the objects of the trust; that the want of a trustee in such cases is never any obstacle in the way of a court of equity carrying into effect any trust, and more especially one of a charitable character.' Mr. Pomeroy, in speaking of the distinguishing features between charitable and private trusts, says that in case of the former, not only may the beneficiaries be uncertain, but that even when the gift is made to no certain trustee, so that the trust if private would wholly fail, a court of equity will carry the trust into effect either by appointing a trustee, or by acting itself in place of a trustee.' 2 Pom. Eq. Jur., §§ 1025, 1026. And see Brown v. Kelsey, 2 Cush. 243; Washburn v. Sewall, 9 Metc. 280.

"There can be no question of the general rule. But it is said it does not apply in a case where there is such indefiniteness as to beneficiaries as here. Numerous are the instances which might be cited where there was the want of a trustee, and the court executed the trust in cases of equal indefiniteness as here as to the objects of the trust. As in McCord v. Ochiltree, 8 Blackf. 15, where the legacy was for the education of the pious, indigent youths; in Bull v. Bull, 8 Conn. 47, where the executors were to dispose of the residue of the estate 'among our brothers and sisters and their children as they shall judge shall be most in need of the same this to be done according to their best discretion — and the executors died never having exercised the power, nor executed the trust; in Williams v. Pearson, 38 Ala. 299, where the beneficiaries named were 'all the paupers and poor children of two designated 'beats' whose parents were not able to support them;' in Howard v. American Peace Soc., 49 Me. 288, where the gift was to the suffering poor of the town of Auburn. Where a legacy is given to trustees to distribute in charity, and they all die in the life-time of the testator, yet the legacy will be enforced in equity. 2 Story Eq. Jur., § 1166. An extended collection of cases on the general subject may be found in note to Hesketh v. Murphy, 35 N. J. Eq. 23, and 1 Jarm. Wills, 403, in note.

*

"Mr. Perry sums up as the result of the principles and authorities, that bequest for charity generally, * * or to the poor generally, or to charity generally, with no trustees appointed, will not be carried into effect by the courts in this country.' Perry Trusts, § 729. That if a testator makes a general and indefinite bequest to charity, or to the poor, or to religion, and appoints no trustees, but plainly refers such appointment to the courts, there would seem to be no impropriety in the court appointing a trustee according to the plain intent of the donor, leaving such trustee to find his power in the will of the donor. But if a testator makes a vague and indefinite gift to charity, and names no trustee, and gives no power to the court to appoint one, there is no power in the American courts to administer such an inchoate and imperfect gift.' Perry Trusts, § 731. That it is immaterial how uncertain the beneficiaries or objects are, if the court, by a true construction of the instru ment, has power to appoint trustees to exercise the discretion or power of making the beneficiaries as certain as the nature of the trust requires them to be.' Sec 732. See also 2 Story Eq. Jur., § 1169."

VOL. LX-30

Howe v. Wilson.

"Courts incline strongly in favor of charitable gifts, and take special care to enforce them. As observed by Mr. Perry (§ 687), charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat quam pereat has been and should be applied; and further (§ 600), that until the statute of distribution, 22 Car. II, chap. 13, was enacted, the ordinary was obliged to apply a portion of every intestate estate to charity, on the ground that there was a general principle of piety and charity in every This shows the favor in which charity is held in the law. There is to be the most liberal construction of the donor's intention in support of a charitable donation. Charities have always received a more liberal construction than the law will allow in gifts to individuals. 2 Story Eq. Jur., § 1165."

man.

The charity here is not vague and indefinite, but quite specific, to the worthy poor of the city of La Salle. Individuals of the class named will ever be readily found to whom the fund may be distributed. The trust is not difficult of execution according to the intention of the testatrix. Instead of herself naming a trustee to make the distribution of her bequest, the testatrix preferred the distribution should be made by a Court of Chancery, whose peculiar province it is to effect the administration of trusts, and especially charitable trusts. There can be no doubt that the execution of the trust by such court would be to effectuate the donor's intention, the aim which is always sought to be accomplished.

"Under the principles and the strong current of authorities which are properly applicable, we are fully satisfied that the bequest in question is a valid charitable gift, and that it should be carried into effect by a Court of Chancery, as the testatrix expressly willed that it should be."

The following is an abstract of Bristol v. Bristol, 53 Conn. 242.

This case involves the construction of the following clause of a will: “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 $5,000." 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 $5,000 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 $5,000 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