Bristol v. Bristol

• Decision Date: 14 December 1885
• Citation: 5 A. 687,53 Conn. 242
• Parties: BRISTOL, Ex'x, v. BRISTOL and others.
• Court: Connecticut Supreme Court

5 A. 687

53 Conn. 242

BRISTOL, Ex'x,

v. BRISTOL and others.

Supreme Court of Errors of Connecticut.

December 14, 1885.

Suit for construction of a will. Case reserved by superior court for the advice of this court.

The following questions arising under the will were submitted to the court:

(1) Whether the authority and power given in the eleventh item of the will to the executrix of the testator to disburse or appropriate a sum not to exceed in all five thousand dollars, is or is not a valid bequest.

(2) In event of this bequest being adjudged to be invalid, whether said sum of $5,000, or any part thereof, and if so, what part, falls into the rest and residue of the estate or becomes intestate estate.

(3) Whether the provisions, clevises, trusts, and powers granted and created under the twelfth item of the will, or which it was sought or intended to grant or create by that section, are valid or invalid, and which of them are valid and which invalid.

(4) In the event of any of the provisions, devises, trusts, and powers granted and created by said section, or which it was sought or intended to grant thereby, being adjudged to be invalid, then to whom and in what proportions said rest and residue of the estate will go and of right belong.

The eleventh and twelfth items of the will are set out in the opinion of the court. The widow had filed in the probate court an instrument, directed to the trustees, instructing them to pay over to certain charitable institutions named therein the quarter of the income referred to in item 12 of the will.

J. K. Beach and J. S. Beach, for plaintiff.

The bequest in the eleventh item of the will is valid. It clearly does not create a trust, but is an authority to the widow to take $5,000 from the estate and use it for such benevolent purposes as she pleases. As the use of it cannot be enforced by a court of equity, she takes it with only a moral obligation to use it as the testator requested. The matter is committed to her conscience, and there it is left by the courts. Robinson v. Dusgate, 2 Vern. 181; Morice v. Bishop of Durham, 9 Ves. 399; Bardswell v. Bardswell. 9 Sim. 320; Bull v. Eull, 8 Conn. 48; Gilbert v. Chapin, 19 Conn. 345; Harper v. Phelps, 21 Conn. 257. Even if the title does not thus vest, in the widow as a legatee, yet the bequest will be sustained as a power of appointment and disposition over the fund. In Wait v. Huntington, 40 Conn. 9, the court say that "it is familiar law that a testator may confer on executors and on others absolute power of appointment and disposition over his property."

J. Halsey and A. Brandegee, for George D. Bristol and the heirs at law.

The bequest in the eleventh item of "such sum, not to exceed $5,000, to disburse to such worthy objects as she may deem proper," is, if possible, still more objectionable, on all the grounds above stated. It is not given to charity, nor even to benevolence. It is uncertain both as to amount and as to objects. It would not be sustained either in England or Massachusetts. All the authorities condemn it. The doctrine of cy pres has never been stretched to cover such an indefinite disposition as this. Adye v. Smith, 44 Conn. 69; Chamberlain v. Stearns, 111 Mass. 267, and cases there cited.

The bequest in the twelfth item of the will being of portions of the income, and not of the corpus of the fund, if inoperative as to any portion, the whole bequest is void. The trust is entire, and cannot be enforced in part. Levy v. Levy, 33 N. Y. 97; Com. v. Levy, 23 Grat. 21. The object of the trust is stated in the will to be "to provide a permanent fund, with a perpetual income, from which income shall be paid the annual annuities hereinafter given and set forth." The estate is thus given to the trustees and their successors in perpetuity, to divide the income therefrom annually, and pay it over in the proportions named, and to the institutions named, and for the purposes to be designated. If the disposition is void as to any of the portions, it cannot be divided among the other beneficiaries, for, by the terms of the bequest, they are only to receive aliquot portions of the whole income. If the bequest had been of aliquot portions of the fund, instead of the income, this difficulty would not arise. But as it is, the difficulty affects the entire trust for the reason stated, and for the reason that the fund is to be held in perpetuity, and the uses to which a portion of the income is to be applied, are not within the provisions of the statute permitting a perpetuity. Coit v. Comstock, 51 Conn. 386. The bequest of the remaining quarter of the income, if void, does not fall into the residue. "Residue means all of which no effectual disposition is made by the will, other than the residuary clause; but where the disposition itself fails, to the extent to which it fails, the will is inoperative." Skrymsher v. Northcote, 1 Swanst. 566; Cheslyn v. Cresswell, 3 Brown, P. C. 246; Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 P. Wms. 489; Leake v. Robinson, 2 Mer. 363, 392; Sykes v. Sykes, 3 Ch. App. 301; Sohier v. Inches, 12 Gray, 385.

C. R. Ingersoll, for Charitable Societies named in twelfth clause of the will.

The word "charitable," in our court of chancery, as in that of England, has a "well-known and acknowledged meaning." Hamden v. Rice, 24 Conn. 350. "A technical meaning." Adye v. Smith, 44 Conn. 71. And this is the meaning of the word in our statute. That meaning has been concisely expressed as "a gift to a general public use which extends to the poor as well as the rich," or "whatever is given for the love of God, or for the love of your neighbor in the catholic and universal sense," as distinguished from that which, in its motive, is "personal, private, or selfish." Jackson v. Phillips, 14 Allen, 555. And it is this sense that courts of chancery give to the word when seeking for the intention of a testator in the construction of wills. Solely for the want of this word the court were not able to discern the testator's intention in Adye v. Smith. But the presence of the word enabled the court to sustain the trust in Schouler, Petitioner, 134 Mass. 426. And this statutory meaning has such force that it will give its own sense to other words of a different legal sense with which it may be united. A gift to "charitable or benevolent" purposes is a good charitable gift in Massachusetts, "whose system of jurisprudence relative to trusts for charity is similar to our own," as this court say in Adye v. Smith. Saltonstall v. Sanders, 11 Allen, 446; Rotch v. Emerson, 105 Mass. 431; Chamberlain v. Stearns, 111 Mass. 267; Suter v. Hilliard, 132 Mass. 412.

But if the provision respecting the one-fourth remaining part of the income should fail, the other trusts of item 12 would be unaffected by it. "Where a will contains different trusts, some of which are valid and others void or unauthorized by law, or where there are distinct and independent provisions as to different portions of the testator's property, or different estates or interests in the same portions of the property are created, some of which provisions, estates, or interests are valid and others invalid, the valid trusts, provisions, estates, or interests created by the will of the testator will be preserved; unless those which are valid and those which are invalid are so dependent upon each other that they cannot be separated without defeating the general intent of the testator." Van Vechten v. Van Veghten, 8 Paige, 104, 120; Irving v. De Kay, 9 Paige, 521. In the present case the trusts are distinct, and, without any difficulty, separable. Nor is the general intent of the testator defeated by such separation. The claimed uncertainty attaches only to the remaining "one-fourth part" of the income, and the only trust that can result to the heir at law by reason of such uncertainty is in respect to that one-fourth part simply. There is no more difficulty in making the separation than there would be if the testator had expressly provided that the principal should be held for the beneficiaries, in separate portions, according to the proportions indicated. Indeed, the bequest of the interest or produce of a fund, without limitation as to time, is regarded as a bequest of the fund itself. 2 Roper, Leg. 371; Sprout's Appeal, 105 Pa. St. 438.

(2) If item 11 of the will is inoperative, the attempted bequest falls into the residuum. Hayden v. Stoughton, 5 Pick. 537; Thayer v. Wellington, 9 Allen, 295; Greene v. Dennis, 6 Conn. 292, 304; Phelps v. Rollins, 40 Conn. 250; James v. James, 4 Paige, 115.

LOOMIS, J. This case involves the construction of two clauses in the will of Julius D. Bristol, and the question of their legality. The eleventh clause of the will is as follows:

"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 five thousand dollars."

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...