Cook v. Universalist General Convention

• Decision Date: 09 November 1904
• Citation: 101 N.W. 217,138 Mich. 157
• Court: Michigan Supreme Court
• Parties: COOK v. UNIVERSALIST GENERAL CONVENTION.

101 N.W. 217

138 Mich. 157

COOK v. UNIVERSALIST GENERAL CONVENTION.

Supreme Court of Michigan

November 9, 1904

Error to Circuit Court, Van Buren County; John R. Carr, Judge.

Judicial settlement of the estate of Ann Smith, deceased. A decree awarding a certain legacy to the Universalist General Convention was reversed on appeal to the circuit court by John Cook, from which the legatee brings error. Reversed.

One Ann Smith died testate, leaving no children. After bequests for the erection of headstones over the graves of her father mother, and herself, and several bequests to her collateral heirs, the seventh clause of her will provides: 'After satisfying all the foregoing demands, I bequeath the remainder of my estate to the Universalist Japan Mission Fund, for the support of the Universalist Mission in Japan.' Upon the distribution of the estate, the Universalist General Convention made claim to this bequest which amounted to about $1,000. The heirs contested the claim. The probate court held that the manifest intention of the testatrix was to make the bequest to the Universalist General Convention, to be used by-it for the support of its mission in Japan. One of the heirs appealed to the circuit court. Testimony was offered and received establishing the following facts: The testatrix was a Universalist in faith. She had contributed in her lifetime to the support of this same 'Japan Mission Fund.' She took and read the church paper, in which this fund was designated as 'The Universalist Japan Mission Fund.' The Universalist General Convention is a corporation organized under the law of the state of New York, is empowered to receive bequests and is the only society or corporation of the Universalist denomination which has a mission in Japan, and a fund to support it. When the appellant had rested its case, the circuit court, upon motion of the appellee, struck out the above testimony, and directed a verdict against the claimant. The reason given by the court below for its direction is that the 'seventh clause of the will is too indefinite and uncertain to warrant the award of the residue to the Universalist General Convention.'

Lincoln H. Titus (Wm. G. Howard, of counsel), for appellant.

Benj. F. Heckert and T. J. Cavanaugh, for appellee.

GRANT J. (after stating the facts).

The doctrine of cy pres, as defined in 12 Cyc. 1191, and 8 Am. &amp Eng. Enc. Law (2d Ed.) 534, has no application to the facts of this case. The devisee is not seeking to change the intention of the testatrix, or by extrinsic evidence to carry out her scheme as near as it is practicable to do so, or to change an illegal or impossible condition, limitation, or object into the nearest practicable one. There is no doubt of the testatrix's intention. It is clearly expressed within the four corners of the instrument. No other inference can be drawn than that she intended to and did provide that a portion of her estate should be devoted, under the direction of the Universalist Church, to which she belonged, to the support of the Japan mission of that church, as it was known to her, as it had been carried on, and to which she had before contributed. The purpose is lawful and commendable. It should be carried out, 'unless there is such an uncertainty that the law is fairly baffled.' Tuxbury v. French, 41 Mich. 12, 1 N.W. 904. The attack by the heirs is based mainly upon the claim that the will provides no trustee to execute the beneficent bequest. The object of the extrinsic evidence is to identify the trustee. A layman even, would readily understand that the testatrix recognized the existence of an organization having charge of the fund, and one which would immediately be intrusted with the execution of her bequest. ...