White v. Fisk

Church, C. J.

Alate writer on the law of devises has remarked, that gentlemen of the legal profession should seldom draw up their own wills, as many such have been the subjects of litigation, and of the most difficult interpretation. The propriety of this suggestion is, in some degree, verified in this case.

The late Judge Hitchcock, whose will we are considering, was one of the most learned and distinguished members of the Connecticut bar; and yet, we find his executor, and trustee, himself also a lawyer of great ability and professional experience, presenting this will to this court, and asking its direction, how he may safely execute .the duties and trusts imposed upon him by it. Under such circumstances, we too may well doubt what advice to give.

There are several prominent facts apparent as well on the face of the will, as disclosed by the evidence, properly admitted by the superior court, which have an important bear *48 ing upon its construction and its application to the testator’s family and estate. He seems to have believed, that the annual income of his property would be about one thousand dollars, and to have assumed this, as a proximate basis of his bequests to his children, apparently so scanty, when in truth, this income proved to be more than double that sum. Aside from his bequest to the Domestic Missionary Society of Connecticut, he has made no ultimate disposition of any part of his own property, but has confined himself to the bestowment of its supposed annual income, leaving the principal, apparently unthought of, or at any rate undisposed of, expressly or by any appropriate language used by him.

The sons and daughters named in the will, wrere the testator’s children by a former wife. By his surviving widow, Narcissa P. Hitchcock, he had a son Samuel W. Hitchcock, and his wife Narcissa had several children by a former husband ; all these survived the testator, and are claimants under his will, and respondents in this bill.

He seems also to have forgotten, that some of his children by his first marriage, named in his will, might die, leaving children, and be left unprovided for, while the trusts in his will continued, as has already proved true, as we are informed, since the arguments in this case were heard by us.

The testator was a member of a Congregational church in New Haven, and so were both the persons constituted by him to be the executors and trustees of his will.

The provision-for the daughters, Laura and Mary, is quite intelligible, although a seeming obscurity is thrown over it by the language, “ such as may be needed to support them comfortably in health,” &c., which .may seem to imply a power and discretion in the trustees, to examine constantly the exact ’necessities of these children, and measure their disbursements accordingly, or even to reduce them to nothing, if the children, by marriage or otherwise, should be raised above want or actual indigence, thereby depriving *49 them entirely of this parental bounty. We do not believe the testator intended any such thing; and we think this should be considered and treated as an absolute bequest of two hundred and fifty dollars annually to each of these daughters, so long as both should live, and as much more to each one respectively, as might be necessary to defray the cost and charges of her sickness; and upon the death of either, that the survivor should receive three hundred and fifty dollars, or one hundred dollars in addition to the sum first given, annually, during her life, with the same allowance for sickness expenses. Laura has since died; upon which event, Mary, the survivor, became, and is, entitled to, the aforesaid sum of three hundred and fifty dollars, and sickness expenses. The sums thus specified, the testator supposed necessary to support these daughters comfortably in health.

The bequests of income to the two sons of the testator, George and Charles, are equally free from doubt. To each, the sum of two hundred and fifty dollars annually, during their lives, and five hundred dollars to the surviving son. And then, if only one of these four children shall survive the rest, he shall be entitled to the sum of six hundred dollars annually, and no more, for his life, unless sickness shall require a larger sum. Since the testator’s death, his eldest son has deceased, and the survivor, since then, has been entitled to receive five hundred dollars per annum.

It will be seen, that in making all these bequests to these four children of his first wife, they are given for their respective lives, no part or portion going over to their children or heirs.

We can not believe that Judge Hitchcock intended to disinherit such lineal descendants; and we should very reluctantly be brought to give a construction to this will, which would produce such a result.

*50 Whether the bequest to the young men, hereafter to be noticed, be valid or void, it becomes necessary to determine by what rule the testator intended the amount of it to be annually ascertained. The clause in the will referring to this subject, is, that “Any surplus income that may remain, to the extent of one thousand dollars per annum, 1 direct to be expended, by my said trustees, for the support of indigent pious young men, preparing for the ministry in New Haven;” from which it has been inferred, that one thousand dollars of such surplus income, if so much there should be, was intended for this object; but the next following clause of the will shows, we think, that such was not the purpose of the testator; for in it, he says, that “ If the net annual income of my estate, as' above settled, should at any time exceed one thousand dollars, then the surplus income I direct to be paid in equal portions to the children of my present wife;” from which it is obvious, that he intended that one thousand dollars should satisfy the legacies before given to his four children, and also the bequest to the indigent young men, because he gives the surplus beyond that to an entirely different class of legatees—his wife’s children. We think, therefore, that the sum intended for the indigent young men, was the annual difference between the sums expended upon the testator’s four children above named and one thousand dollars. Such sum or difference, if this bequest be valid, is payable to them, and if not, it is intestate, undisposed of by the will, and is payable to the heirs of the testator.

A more interesting and perplexing inquiry than any other suggested by this will, is, whether this bequest to the “ pious indigent young men” can be sustained and carried into effect ? All the parties who, on this record, make claim before us, unite in saying that it can not. And the trustee only asks us, whether it can? We think it cam not be sustained.

And while we acknowledge the benevolent and charitable *51 intention of the testator in this gift, and the laudable purpose he conceived, we can not see how, confining ourselves within what we believe to be our legitimate powers of interpretation and judgment, we can carry that intention into effect.

This legacy is not given to any college or institution, nor to any association of persons corporate or voluntary; nor is any such alluded to, by which the charity can be dispensed; but only as a legal interest to trustees, to be sure, to* be ex pended or disbursed for the support of individuals, each one of whom falling within the description named, has an equita ble or beneficial interest in the fund, and which he must have a right to enforce, if any one can. And who are these individuals ? They are the indigent pious young men, preparing for the ministry in New Haven. The difficulty of carrying this provision into effect, is as great as if no trustee had been appointed; for no rule of determination, selection or apportionment, is furnished by the will, and no positive or discretionary power of determination, &c., bestowed.

It has been suggested, that the power of selecting the beneficiaries under this bequest, and of apportioning the sums of money annually to be disbursed among them, is in the trustees. We do not so understand it. Their only power is to expend the money—to pay it out, to the persons entitled, under the will, to receive it. Such a power can not legally be inferred from the fact, that the testator, and the trustees appointed by him, were members of a Congregational church in New Haven; and for us to infer it from this fact, would be to substitute a very liberal conjecture, in the place of legitimate interpretation of language and legal judgment.

Who, then, are entitled to this bequest; or, if the trustees have the power suggested, how can they exercise it ? What is meant by “indigent young men ?” No rule of discrimination is given. And who but Him that knoweth the heart can *52 determine, who are the pious ones intended by the testator ? Surely, he did not intend all who merely make professions of piety. And what was meant, by preparing for the ministry in New Haven? Was it a preparation, by a course of theological or academical study ?

If a bequest, for the purpose indicated in this will, in this respect, had been made to a college, a theological institute— the Congregational society of which the testator was a member—or other body which had, or might have, a supervision or interest in the general object of this charity, and rules for its management, it would have presented a very different case; but as it is, we think the provisions of this will in this matter, have been left by the testator quite too loose and indefinite for judicial action.

Our statutes of descent and distribution have established rules for the distribution of estates, founded upon what are supposed to be the ordinary principles and. impulses of natural affection and of equity ; and, in the absence of other evidence, these may well be followed, as the best exponents of intention.

Every man has a right, by his last will and testament, to change these laws in his own case, and make a law for himself, if he will; but to do this effectually, he must not only observe prescribed formalities with exactness, but he must speak in a manner leaving no reasonable dbubt of his purpose ; and if he does not do this, the general and prescribed laws should be permitted to have their just and equitable effect.

There is a class of cases, the authority of which we recognize, where the individual beneficiaries under a will, but included in a definite class, are left uncertain, and yet the bequest for their benefit has been sustained. But these are cases, where the gift has been t.o some corporate or voluntary association, whose business and duty it becomes, to dispense the charity; or where power is very certainly conferred by *53 the will, upon the executor, trustee, See., to discriminate and select, or to apportion the application of the funds. Such was the case of Bull v. Bull, 8 Conn. R., 48, in which a remainder was bequeathed to executors, in trust for the most needy of the testator’s brothers and sisters, with express authority and power to the executors to make distribution to the most needy, according to their best discretion. “ Here,” says the court, “ a rule is given by which the persons cari be designated”—the most needy.

The same discretionary power was expressly conferred in the cases of Gower v. Mainwaring, 2 Ves., 87; Moggridge v. Thackwell, 7 Ves., Jr., 36; 13 ib., 416; Attorney General v. Price, 17 ib., 371; Witman v. Lex, 17 Serg. & Rawle, 91 ; in which last case, the court recognizes the principle, that bequests for uncertain objects, &c., may be sustained, where there is a discretionary power vested anywhere over the application of the charity. 9 Ves., 399. 10 id., 522. 1 Sim. Stu., 69. But no such discretionary power, as we believe, is given by this will.

Our courts have recognized the validity of charitable be “ quests, not only where the gifts have been to a person or corporation, having a legal capacity to take, but also to voluntary unincorporated associations existing for benevolent or charitable purposes, and have supplied these latter with trustees to receive, hold and manage the funds given for the uses designated, even though these were somewhat undefined and uncertain. And so also, bequests to individuals or classes of individuals, in nature of charities, where the testator has clearly given a power to some person or persons, to exercise a discretionary authority in their management, so that uncertainty may be made certain ; and it is believed .that we have gone no further in this direction. American Bible Society v. Wetmore, 17 Conn. R., 182. Bull v. Bull, 8 Conn. R., 48. Burr v. Smith; 7 Vt. R., 241. Reformed *54 Dutch Church v. Mott et. al., 7 Paige Ch., 77 . Inglis v. Sailor's Snug Harbor, 3 Peters, 99 .

Our revised statute (tit. Land, 454) recognizes these charitable and pious purposes and uses, and protects them ; but it seems, by fair intendment, to require that they shall be reasonably certain and definite; for its language is, they “ shall ever 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.” To carry out this provision of the law, the intention of the donor must be certain, as well as the objects of his bounty reasonably definite, and the charity confined to the very use to which it was destined.

There may be other cases in this country, and there certainly are many in England, in which charities, more equivocal and uncertain than the one we are considering, have been sustained; but we are persuaded that this has been done either avowedly, or under the influence of the principie of cy pres. Several such cases have been brought to jour notice on this argument; but we repel the authority of jihem, as we have not adopted that, principle into our system i'ef jurisprudence. We think it inconsistent with the limited and defined powers of the judiciary, as understood and approved in this state.

By the theory of the English constitution and laws, the king is parens patriae, the guardian of infants, the dispenser of charities, and his chancellor, as the keeper of his conscience, acts in his stead. The doctrine of cy pres, is a doctrine of prerogative ; and it seems to be this, that if it can be seen that a charity was intended, by a testator, but the object specified can not be accomplished, the funds may be applied to other charitable purposes, or that the chancellor may seize them as a sort of waif, and apply them as his, or the king’s good conscience, shall direct. 2 Sto. Eq., 424, § 1182. In this way the chancellor substitutes himself *55 in the donor’s place, and really makes the will himself. This doctrine is inconsistent with the plain provisions of our statute, above referred to, on this subject, and which forbid the perversion of the charity; and the English judges have themselves expressed fears of the tendency of the power.; “ This doctrine,” says Lord Kenyon, in Brudenell v. Elewes, 1 East, 451, “has not been much approved, and we must see that it does not run wild;” and Lord Chancellor Eldon, in 7 Yes., 399, says, “ it is not proper to extend it one step further.” 1 Maddock’s Ch., 49. Cooper’s Eq. Pl., 27. 2 Fonbl. Eq. Ch., 1, § 1. Lord Falkland v. Bertie, 2 Vern. R., 342. 3 Peters, U. S. R., app., 481. Trustees of Baptist Association v. Hart, 4 Wheat., 1 .

It is true, that the later cases in England have modified, in some measure, the former extreme administration of the principle of cy pres.

The charity intended for the indigent young men, being, in our opinion, too vague and uncertain for. effect, a question is suggested here—to whom shall the moneys intended for them be paid 1

The testator has directed, that the surplus income of his estate, beyond one thousand dollars, shall be paid, in equal portions, to the children of his then present wife, Narcissa, and their heirs. But it is evident, that the testator did not intend, that any portion of this one thousand dollars should go to the children of his wife—there being no unexpended residuum of this sum. It must therefore, as we have already intimated, be treated as intestate, and be distributed to the testator’s heirs. Green v. Dennis, 6 Conn. R., 292. Brewster v. McCall’s Devisees, 15 Conn. R., 274. Baker v. Hall, 12 Ves., 497. Jones v. Mitchell, 1 Sim. & St., 290.

This trust is not a perpetual one, and was not so intended. The chief object of the testator in creating it, was, that his first four children should be provided for, from the annual income of his property, during their lives; and he looked *56 to the 1000 dollars for this purpose, and all beyond, he considered as uncertain; and yet directed, if there should be a surplus income, above the 1000 dollars, that such surplus should be annually paid to the children of his wife, Narcissaj and their heirs. But we think it obvious, from the whole tenor of the will, that he did not intend that these annual payments should continue, beyond the time when there was no one surviving, who could take any part of the first thousand dollars. If he did, the bequest would be, that this annual income of 1000 dollars would be an accumulating fund forever, with no one to take it; and the principal of the estate must remain, too, as a fund to raise the surplus income for the children of his wife, Narcissa, and their heirs.

We do not suppose this was intended by the testator; and if it was, such purpose can not be executed. The law will not sanction a perpetuity, thus created for a private interest, and not for a charity. 1 Jarman on Wills, 219, 264.

If the trust expires, upon the death of the survivor of the testator’s children by his first marriage, his intention in respect to all his children will best be fulfilled. If there be a surplus beyond the annual income of one thousand dollars, while the trust continues, all the children will receive their respective portions of income at the hands of the trustees, according to the provisions of the will, as we understand them, and according cto law; and upon the death of such survivor, the entire estate or principal fund remaining, not having been ]ry the will in any way disposed of, will go to the heirs general of the deceased, in fee.

The result of the views we have expressed, will lead us to the following advice, to wit: That from the net annual income of the estate in the hands of, or subject to, the trustee, he pay to Mrs. Mary Sherwood, the surviving daughter of the testator, during her life, * the sum of three hundred and *57 fifty dollars annually, for her sole and separate use; and in case of sickness, such further annual sum as may be necessary, to defray the cost and charges of such sickness.

And to Charles Hitchcock,the surviving son of the'testator by his first marriage, subject to the aforesaid payment to Mary Sherwood, the sum of five hundred dollars annually, during his life; and in case of the death either of the said Mary or Charles, then to the survivor of them, during his or her life, the sum of six hundred dollars annually, and such additional sum as the sickness of such survivor shall require.

And also, if said income shall be more than sufficient to make the aforesaid payments, then the sum or balance remaining, or the difference between what may be necessary to make such payments, and the sum of one thousand dollars in any year, such sum or difference to be paid to the heirs at law of the testator.

And if the net annual income of said estate has exceeded, or shall exceed, the sum of one thousand dollars in any year, such surplus income, beyond one thousand dollars, to be paid to the children .of Narcissa P. Hitchcock, the surviving widow of the testator, in equal portions, and to their heirs annually, so long as the said Mary Sherwood or Charles Hitchcock shall live. But, upon the death of both the said Mary Sherwood and Charles Hitchcock, said trust to cease and be determined, and the estate of the testator, then remaining in trust in the hands of the trustee, to be distributed in fee, to the heirs at law of the said Samuel J. Hitchcock.

In this opinion the other Judges concurred.

Decree accordingly.

It is understood, that since the argument and decision of this case, Mrs, Sherwood has deceased, leaving a child or children.