Clark v. Campbell

• Citation: 133 A. 166
• Parties: CLARK et al. v. CAMPBELL et al.
• Decision Date: 06 April 1926
• Court: Supreme Court of New Hampshire

133 A. 166

CLARK et al.

v. CAMPBELL et al.

Supreme Court of New Hampshire. Belknap.

April 6, 1926.

[COPYRIGHT MATERIAL OMITTED.]

Questions Reserved from Superior Court, Belknap County; Sawyer, Judge.

Petition by George G. Clark and another, trustees, against Belle Campbell and another for instructions under the will of Charles H. Cummings, deceased. Questions reserved without ruling. Case discharged.

Owen & Veazey, of Laconia, for plaintiffs.

Frank P. Tilton, of Laconia, and Jeremy R. Waldron, Atty. Gen., for defendants.

SNOW, J. 1. The ninth clause of the will of deceased reads:

"My estate will comprise so many and such a variety of articles of personal property such as books, photographic albums, pictures, statuary, bronzes, bric-a-brac, hunting and fishing equipment, antiques, rugs, scrap books, canes and masonic jewels, that probably I shall not distribute all, and perhaps no great part thereof during my life by gift among my friends. Each of my trustees is competent by reason of familiarity with the property, my wishes and friendships, to wisely distribute some portion at least of said property. I therefore give and bequeath to my trustees all my property embraced within the classification aforesaid in trust to make disposal by the way of a memento from myself, of such articles to such of my friends as they, my trustees, shall select. All of said property, not so disposed of by them, my trustees are directed to sell and the proceeds of such sale or sales to become and be disposed of as a part of the residue of my estate."

The question here reserved is whether or not the enumeration of chattels in this clause was intended to be restrictive or merely indicative of the variety of the personal property bequeathed. The question is immaterial, if the bequest for the benefit of the testator's "friends" must fail for the want of certainty of the beneficiaries.

By the common law there cannot be a valid bequest to an indefinite person. There must be a beneficiary or a class of beneficiaries indicated in the will capable of coming into court and claiming the benefit of the bequest. Adye v. Smith, 44 Conn. 60, 26 Am. Rep. 424, 425. This principle applies to private but not to public trusts and charities. Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, 50 L R. A. 307, 320, 76 Am. St. Rep. 924; 28 R. C. L. 339, 340; Morice v. Bishop of Durham. 9 Ves. 399, 10 Ves. 521.

The basis assigned for this distinction is the difference in the enforceability of the two classes of trusts. In the former, there being no definite cestui que trust to assert his right, there is no one who can compel performance, with the consequent unjust enrichment of the trustee; while, in the case of the latter, performance is considered to be sufficiently secured by the authority of the Attorney General to invoke the power of the courts. The soundness of this distinction and the grounds upon which it rests, as applied to cases where the trustee is willing to act, has been questioned by distinguished authorities (5 Harvard Law Review, 390, 394, 395; 65 University of Pennsylvania Law Review, 538, 540; 37 Harvard Law Review, 687, 688) and has been supported by other authorities of equal note (15 Harvard Law Review, 510, 513-515, 530). It is, however, conceded by the former that, since the doctrine was first stated in Morice v. Bishop of Durham, supra, more than a century ago, it has remained unchallenged, and has been followed by the courts in a practically unbroken line of decisions. 5 Harvard Law Review, 392, 397; 65 University of Pennsylvania Law Review, 539; 37 Harvard Law Review, 688; 26 R. C. L. 1189. Although it be conceded that the doctrine is not a legal necessity (15 Harvard Law Review, 515), the fact that it has never been impeached affords strong evidence that in its practical application it has been generally found just and reasonable. This is a sufficient ground for continued adherence to the rule.

Nor is the force of the precedents impaired by the fact that, of necessity, some exceptions to the application of the doctrine have been recognized, as in the case of bequests to an executor to pay funeral expenses, which have been permitted to take effect, notwithstanding the want of a beneficiary capable of invoking judicial power for their enforcement. 15 Harvard Law Review, 515, 530; Gafney v. Kenison, 10 A. 706, 64 N. H. 354, 356. See Smart v. Durham, 86 A. 821, 77 N. H. 56, 58-60. A more liberal rule as to what constitutes a charitable as distinguished from a private trust prevails here than obtained at the time the opinion in Morice v. Bishop of Durham, supra, was rendered. It would seem clear that it is in this respect only that Prof. Ames treats Goodale v. Mooney, 60 N. H. 528, 49 Am. Rep. 334, as drawing away from the earlier ease. 5 Harvard Law Review, 392.

"An examination of the authorities generally will show that in modern times instances of testamentary gifts being rendered void for uncertainty have been of much less frequent occurrence than formerly, and that courts are now quite uniformly reluctant to admit uncertainty as a ground for avoiding the formal disposition of property." Gafney v. Kenison, 64 N. H. 354, 356, 10 A. 706, 708.

The court was there construing a bequest in trust for the relief of the most destitute of the testator's relatives, and the language above quoted had reference more particularly to testamentary provisions establishing charitable trusts as they are interpreted in this jurisdiction. Haynes v. Carr, 70 N. H. 463, 481, 49 A. 638; Carter v. Whitcomb, 74 N. H. 482, 487, 69 A. 779, 17 L. R. A. (N. S.) 733, and cases cited.

The more liberal construction of charitable uses existing here is due in part to the facts that our courts of equity have original and inherent jurisdiction over charities independently of St. 43 Eliz. c. 4 (Goodale v. Mooney, 60 N. H. 528, 533, 534, 49 Am. Rep. 334; Webster v. Sughrow, 69 N. H. 380, 381, 45 A. 139. 48 L. R. A. 100), and are unrestrained by local statutes which in some states have "reduced charitable bequests to the level of legacies for private purposes." Haynes v. Carr, supra, 481, 482, 483, 49 A. 641; Glover v. Baker, 76 N. H. 393, 414, 417, 83 A. 916. The general object of a charitable use having been defined, or a means of fixing it having been provided by the testator, indefiniteness of the beneficiaries, if not an essential element of such a trust, at most does not render it void. Haynes v. Carr, supra, 481. 482, 484. In the case of purely private trusts, however, the common-law rule that there must be a definite or ascertainable beneficiary has always prevailed in this jurisdiction.

"A gift to trustees to dispose of the same as they think fit is too uncertain to be carried out by the court." Theobald on Wills (7th Ed.) 495; Fowler v. Garlike (1830) 1 R. & M. 232, 235; Ellis v. Selby (1836) 1 M. & Cr. 286, 298; Buckle v. Briston (1864) 10 Jur. N. S. 1095; Yeap Cheap Neo v. Ong Ching Neo (1875) L. R 6 P. C. 381, 392; Fenton v. Nevin (1893) 31 E. R. Ir. 478; Oiliffe v. Wells (1881) 130 Mass. 221, 223; Davison v. Wyman (1913) 100 N. E. 1105, 214 Mass. 192; Blunt v. Taylor (1918) 230 Mass. 303, 119 N. E. 954.

That the foregoing is the established doctrine seems to be conceded, but it is contended in argument that it was not the intention of the testator by the ninth clause to create a trust, at least as respects the selected articles, but to make an absolute gift thereof to the trustees individually. It is suggested that the recital of the qualifications of the trustees may be considered as investing them with personal and nonofficial character, and that the word "trustees" is merely descriptive of the persons who had been earlier named as trustees, and was not intended to limit the capacity in which they were to act here. Assuming this construction, the petitioners rely upon Gibbs v. Rumsey, 35 Eng. Rep. 311; Wells v. Dpane, 3 Gray (Mass.) 201; Davison y. Wyman, 100 N. E. 1105, 214 Mass. 192, 194; Norman v. Prince, 101 A. 126, 40 R. I. 402; Noane v. Larkine, 1 L. R. Irish 103; Walter v. Walter, 113 N. Y. S. 465, 60 Misc. Rep. 383; Harvey v. Griggs, 111 A. 437, 12 Del. Ch. 232. It is a sufficient answer to this contention that the language of the ninth clause does not warrant the assumed construction. The assertion of the competency of the trustees to wisely distribute the articles in question by reason of their familiarity with the testator's property, wishes and friendships seems quite as consistent with a design to clothe them with a trusteeship as with an intention to impose upon them a moral obligation only. Blunt v. Taylor, 119 N. E. 954, 230 Mass. 303, 305. If, however, the recited qualifications had the significance ascribed to them the language of the bequest is too plain to admit of the assumed construction. When the clause is elided of unnecessary verbiage the testator is made to say:

"I give to my trustee my property (of the described class) in trust to make disposal of to such of my friends as they shall select."

It is difficult to conceive of language more clearly disclosing an intention to create a trust. However, if the trust idea introduced by the words "trustees" and in "trust" were not controlling, all the evidence within the will confirms such ideas. In the first clause of the will the testator nominates three trustees, and an alternate in case of vacancy. Throughout the will these nominees are repeatedly and invariably referred to as "my trustees," whenever the testator is dealing with their trust duties. Whenever rights are conferred upon them individually, as happens in the fifth, sixth, and eighth clauses, they are as invariably severally referred to solely by their individual names. The clause under consideration (ninth) expressly provides for the disposal of only a portion of the classified articles, and imposes upon the trustees the duty of selling the balance thereof and adding the proceeds to the residue which th...