In re the Estate of Johnston

Ladd, J. —

The sole inquiry is whether the clause bequeathing “to home and foreign missions two hundred *111 dollars in money to be divided equally share and share alike” is sufficiently certain to enable the court to give it effect. In the clause immediately preceding testatrix gave conditionally to the Presbyterian Church of Toledo, of which she was a member, and it was admitted that that church is a part of the Presbytery of Waterloo, and embraced in the Presbyterian Church of the United States, which maintains a board of foreign missions and a board of home missions, both being incorporated, for the advancement of Christianity at home and abroad, and to which the church at Toledo made contributions at stated intervals to enable them to carry on their charitable enterprises. These extrinsic facts may be considered as tending to identify the objects of testatrix’s bounty from the description contained in the will, and the only controversy is whether they are sufficient for that purpose. Charitable gifts are strongly favored. The courts will carry them into effect if this can be done consistently with established rules of law. Indeed it is said that courts never construe a charitable bequest void unless it is so absolutely dark that they can not find out the testator’s meaning. The extrinsic facts are important as indicating the situation in which testatrix stood when she made the bequest. As a member of the Presbyterian Church, she was likely to have been interested in its religious and charitable enterprises, and may have aided in their support. In a previous clause she had remembered the local church, and in the opinion of the majority of the members of this court it is to be inferred therefrom, and the fact of her connection with that church, that she intended the bounty bestowed on home and foreign missions to go to the boards of home and foreign missions to whose maintenance the church contributed. This conclusion is said to have support in the authorities. In Hinckley v. Thatcher, 139 Mass. 477 ( 1 N. E. 840 , 52 Am. Rep. 719 ), the deceased had willed the residue of his estate “equally to the authorized agents of *112 the Home and Foreign Missionary Societies to aid in propagating the holy religion of Jesus Christ,” and the court held that, in view of his membership' of a Cougregational church, and his interest as manifested in the American Board of Commissioners for Foreign Missions and Massachusetts Home Missionary Society, these were intended by the testator. In Brewster v. McCall’s Devisees, 15 Conn. 274 , the devise” was to the' “Missionary Society for Foreign Missions,” and the extrinsic evidence was held sufficient to identify, from this description, the “American Board of Commissioners for Foreign Missions.” See Kinney v. Kinney, 86 Ky. 610 ( 6 South. 593 ); Board of Foreign Missions of Presbyterian Church v. Culp, 151 Pa. 467 ( 25 Atl. 117 ). In Gilmer v. Stone, 120 U. S. 586 (7 Sup. Ct. 689, 30 L. Ed. 734 ) the gift was of the residue of the'“estate to be equally divided between the hoard of foreign and the board of home missions,” and the court held that evidence of testator’s active membership of the Presbyterian Church; that collections were annually taken for the support of such hoards of the Presbyterian Church, though without- designating the church, and transmitted to such boards in connection with the preceding requests to the library of the local Presbyterian Church, for the erection of another church, and for the pastor’s salary — sufficiently identified the beneficiaries as the boards of home and foreign missions of that denomination.

It is to he noted that in none of these decisions were the gifts directly to the missions, as in this case, but it may be assumed, as is thought by the majority, that testatrix intended her bounty to be bestowed through the ordinary and usual channels of the church provided for the distribution of such charity, and therefor the gift should be construed as intended for the hoards of home and foreign missions of that denomination. See Domestic and Foreign Missionary Society’s Appeal, 30 Pa. 425 . The *113 writer with whom Mr. Justice McClain concurs is not able to go to the extent here required to sustain even a charitable gift, but is of the opinion that the will, when considered in connection with all the extrinsic facts, fails to identify the objects of testatrix’s bounty. There is nothing in the record to indicate, save her membership of the local church, that she was interested in the missionary boards claiming the fund, or that she had ever participated actively in the charities of her church. In these respects the case is to be distinguished from those cited. Moreover, as she was not shown to be interested in missions generally, there se.ems to be no ground for thinking she intended her bounty for distribution among all the missions of the church rather than to some particular ones out of the innumerable enterprises of the kind in the* different parts of the world. Nor do I think mere membership of a church enough without more to indicate that the design was to give to the missions of that denomination rather than to those of some other church or to the missions of all churches. In other words, it seems to me to be merely a matter of conjecture what she intended, and that the court, under the guise of a liberal construction, is not expounding and enforcing, but really making a new will. The precise question was before the Supreme Court of North Carolina in Bridges v. Pleasants, 39 N. C. 26 ( 44 Am. Dec. 94 ) where certain bequests were to be applied to foreign and home missions. In deciding the beneficiaries too uncertain the court said: “It is impossible from anything appearing in the will to conjecture how, by whom, or in whose favor these sums of money were to be administered; what kind of ‘foreign missions,’ whether diplomatic or religious, or if the latter, of what sect or what country no man can say. So likewise of ‘home missions.’ The distinction between a gift direct to charity not a trust, and one to a trustee to be by him applied to a charity, should not be lost sight of. In the *114 former the court turns over the fund to the charity as a ministerial act, and the objects of the bounty must be sufficiently certain to enable it to ascertain who are intended. In the latter the trustee is endowed with the power of selecting such objects, precisely as the testator might have done. In my opinion this was a direct gift, and the beneficiaries so uncertain as to render the, bequest void. However, the majority think otherwise, and necessarily I yield, though not with reluctance, for, as once remarked by Chief Justice Wilmot in applying the doctrine of cy fres, ‘one kind of charity will embalm testatrix’s memory as well as another.’ ”

It follows that the clause of the will assailed is adjudged valid, and the judgment of the district court reversed.