City Missionary Soc. v. August Moeller Memorial Foundation, Inc.

• Decision Date: 01 December 1924
• Citation: 101 Conn. 518,126 A. 683
• Parties: CITY MISSIONARY SOC. v. AUGUST MOELLER MEMORIAL FOUNDATION, INC.
• Court: Connecticut Supreme Court

126 A. 683

101 Conn. 518

CITY MISSIONARY SOC. v. AUGUST MOELLER MEMORIAL FOUNDATION, INC.

Supreme Court of Errors of Connecticut.

December 1, 1924

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Appeal from the City Missionary Society from decree directing trustees of trust fund created by will of August Moeller deceased, to transfer balance thereof to the August Moeller Memorial Foundation, Inc. From an affirmance of the decree by superior court, the City Missionary Society appeals. Affirmed.

Appeal from an order and decree determining that defendant was the sole distributee of the balance of a trust fund created by the will of August Moeller, deceased, and directing the trustees of said fund named in the will to transfer said balance to defendant, taken to the superior court in Hartford county, and tried to the court. Judgment rendered ratifying and confirming the order and decree of the probate court. No error.

August Moeller, late of Hartford, died February 17, 1918. He was a German, and during all of his life had made his association with the German people, and in particular spent the greater part of his social activities for over 30 years among the members of the German societies hereinafter mentioned in his will. Mr. Moeller left a will, the fifth article of which is the only part of the will material to this appeal, and reads as follows:

" Fifth. All the remainder of my estate, both real and personal, I give, devise and bequeath as follows: One half to Frederick G. Eberle and Emil G Reinert, both of Hartford Connecticut, the same to be held in trust by them or the survivor of them for the following purposes, namely: To invest and re-invest the principal of said trust fund in such manner as said trustees may deem proper and advisable. It has come to my knowledge that certain German organizations located in the city of Hartford have advocated the founding a home in the city of Hartford for poor, elderly and destitute Germans. If the Hartford Saengerbund, the Hartford Turnerbund, the Hartford Maennerchor, the German Aid Society the German-American Alliance of Hartford, and such other German organizations in Hartford as they may invite to co-operate with them or participate in such undertaking, shall decide to carry out such a plan as has been discussed, relative to acquiring, establishing and maintaining such a home for the purposes aforesaid, and shall form a separate organization composed of one representative from each of said societies, then and in that case the aforesaid trust shall terminate and cease, and my said trustees are hereby directed and authorized to pay over said trust fund and accumulations to such person or persons who may be by said separate organization authorized and directed to receive the same. Provided, however, that in case such a home is not acquired and established as aforesaid within a period of five years from the date of my death, then provision which I have herein made for that purpose shall be null and void, and in that event I further direct my said trustees to turn the principal and accumulations of said trust fund over to the City Missionary Society of the city of Hartford, Connecticut, for the benefit of the poor of the City of Hartford."

At the date of the execution of the will and of the death of the testator the five German Societies mentioned in the fifth article were in existence and actively functioning. The German-American Alliance was composed of delegates from the other German societies of Hartford, and was intended to act as a sort of clearing house for the other societies, and was affiliated with a national organization of the same name. After the United States entered the war, this society on April 12, 1918, by the voluntary action of its members, disbanded. Duly appointed delegates from these societies met from time to time and discussed the policy they should pursue in the formation of the organization mentioned in Mr. Moeller's will. On February 13, 1923, a corporation known as the August Moeller Memorial Foundation, Inc., respondent herein, was incorporated by four incorporators, each of whom represented one of four of the five German societies named in the fifth article of the will; there was no representative of the German-American Alliance among the incorporators. On February 14, 1923, this corporation purchased a dwelling house in Hartford, paying for the same $12,000, of which $6,000 was the assumption of an existing mortgage, $2,000 was in cash, and $4,000 was borrowed. Immediately upon this purchase the respondent by vote dedicated this house to the uses mentioned in the will. These societies long before this purchase were active in raising funds for the same and have continued these activities since the purchase and to the time of trial. The house was not ready to receive inmates, and the respondent did not have any inmates in this home until about three months after February 17, 1923. The first inmates consisted of a man and wife, who were admitted to the home on May 15, 1923, the man dying on November 14th following, and his wife continuing the sole inmate of the home until the date of trial. The respondent has not purchased or leased any other home for poor, elderly, and destitute Germans. The class for which the testator created this trust is not a large one in the vicinity of Hartford, and at the time the home was dedicated there were no applications for admission, but the wants of this class have been satisfied as soon as brought to the attention of the organization. The respondent does not expect to be able to continue to maintain a home for poor, elderly, and destitute Germans, unless it receives the bequest provided for by the fifth article of this will. These societies upon the advice of counsel were under the erroneous impression that they had five years from the date of settlement of the estate in which to organize, instead of five years from the death of the testator.

The appellant, the City Missionary Society, is a corporation chartered by special act of the General Assembly, and for sixty-five years has been well managed and ably cared for, and during all of this period has been and now is ministering to the poor throughout Hartford, and caring for poor, elderly, and destitute Germans, and is able and willing to accept the bequest if entitled to it.

The executrix has fully administered the estate of Mr. Moeller and has delivered to the trustees named in the fifth article the one-half of the residue amounting at the date of trial to approximately $23,742.90.

The trial court reached the following conclusions:

(1) The respondent, formed of representatives of only four of the five societies named in testator's will, is such an organization as that described in the fifth article.

(2) The respondent acquired and established in Hartford a home for poor, elderly, and destitute Germans, as provided by testator's will, within a period of five years from the date of testator's death,

(3) The respondent is entitled to receive, and the appellant is not entitled to receive, the bequest provided for by the fifth article.

Ralph O. Wells and Roger W. Davis, both of Hartford, for appellant.

Milton Nahum and Francis P. Rohrmayer, both of Hartford, for appellee Memorial Foundation.

John J. Dwyer, of New York City, for appellees Eberle and others.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and ELLS, JJ.

WHEELER, C.J. (after stating the facts as above).

In the fifth article of his will August Moeller devised and bequeathed one-half of the...