Duggan v. Slocum

• Decision Date: 05 October 1897
• Docket Number: 887.
• Citation: 83 F. 244
• Parties: DUGGAN et al v. SLOCUM.
• Court: U.S. District Court — District of Connecticut

83 F. 244

DUGGAN et al v. SLOCUM.

No. 887.

United States Circuit Court, D. Connecticut.

October 5, 1897

John C Donnelly and C. Walters, for complainants.

John O'Neill, for defendant.

TOWNSEND District Judge.

Demurrer to bill in equity. The three orators herein, describing themselves as British subjects, residing, respectively, in the state of Michigan, city of Dublin, Ireland, and the city of Montreal, Canada, bring this bill in behalf of themselves and all other heirs at law and next of kin of one John H Duggan, deceased, who may unite in the prosecution thereof and aver that they are respectively the brothers and sister and next of kin of said Duggan, late of the town of Waterbury, in the state of Connecticut, who had never married, and who died in said town on the 10th day of November, 1895, leaving the orators and other heirs at law and next of kin, not known to them, surviving; that said John H. Duggan was a priest of the Roman Catholic Church; that on August 5, 1895, the decedent executed a will, which was admitted to probate on December 2, 1895; that, the executors and trustees therein named having refused to qualify, one William J. Slocum, of said Waterbury, was duly appointed and duly qualified as administrator with the will annexed 'and is now acting, and has possession and custody and control of the property and assets of the said Reverend John H. Duggan, hereinafter referred to, and claims to be entitled to the control, management, and disposition thereof. ' The orators further aver that they are advised that the provisions of the fourth paragraph of the will 'are indefinite and uncertain in the subject and objects, invalid, and unauthorized by law, and unlawfully suspend the absolute power of alienation of said estate. ' They also aver that the estate attempted to be disposed of under said provisions amounts to $20,000, and that, in the event of such provisions being declared invalid, they would be entitled to one-half thereof, and that the amount in controversy exceeds the sum of $10,000; and they pray that said devises and bequests in the fourth paragraph of the will may be decreed to be illegal and void, and that the property remaining, after carrying out the other provisions of the will, may be accounted for and paid over to the orators and other heirs and next of kin.

The provisions of said fourth paragraph are as follows:

'Fourth. All the rest and residue of my estate, both real and personal, and wheresoever situated, I give, devise, and bequeath to my executors hereinafter named, in trust, however, for the following purposes, viz.: One-half to be used for the purpose of establishing and maintaining a library and reading room in connection with St. Patrick's parish in said Waterbury, or in whatever part of said Waterbury may be deemed by my said executors most suitable and convenient for the general public, and one-half for the purpose of establishing or maintaining a Roman Catholic protectory for boys in said diocese of Hartford; it being my will that the personal estate and rents accruing from any real estate of which I may die possessed be invested in safe securities for a term of ten years or more, at the discretion of my said executors. I also will that the management and disposal of my real estate be at the discretion of my said executors.'

The defendant, said administrator with the will annexed, demurs to the complaint on several grounds. Inasmuch as the demurrer must be sustained if the provisions of said fourth paragraph of the will are valid, this point only will be considered. Complainant insists that said provisions are void upon three grounds: First, for uncertainty as to the object; second, for the want of a provision for the selection of the objects of the bounty; third, as contravening the rule against perpetuities.

It is clear that bequests for a public library and for a protectory for boys are charitable bequests, and entitled to the benefits of section 2951 of the General Statutes of Connecticut, usually referred to as the statute of 1702. It was enacted in 1684, and has been statute law of Connecticut ever since. Said section is as follows:

'All estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemetery, cemetery lot, or of the monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.'

This statute pledges the good faith and honor of the state that all public and charitable bequests shall, if possible, be appropriated to the use intended by the donor. It is unnecessary to consider the earlier decisions of the supreme court of this state as to such bequests. It is now certainly the well-settled policy of said court to uphold charitable gifts wherever it is possible.

I do not think there is any such uncertainty as to the intent of the donor as should invalidate the gift. A protectory for boys is an institution for the education and care of destitute or homeless boys, especially those in danger of becoming vicious. The nature of such institutions under the care of the Roman Catholic Church is well known. The property is left to certain persons named, in trust, to be used for the purpose of establishing and maintaining a library and reading room, and for the purpose of establishing or maintaining a Roman Catholic protectory for boys. The particular mode of carrying the intent of the donor into effect-- the site of the library and reading room, the character of the books and papers, the selection of boys for the protectory, and the regulations for the conduct of both institutions-- is wisely left to the discretion of the trustees. It is manifestly the intent of the testator that the trustees shall make such provision for carrying out these purposes and selecting beneficiaries as they may think best. He is presumed to have known that, in case of their death or inability or declination of the trust, the proper authority would fill their places. The rule of law to that effect is substantially a part of the will. It is as though the testator had said: 'In case of the death of said trustees or their refusal to act, other trustees shall be appointed by the proper court. ' Conklin v. Davis, 63 Conn. 377, 383, 28 A. 53; Dailey v. City of New Haven, 60 Conn. 314, 324, 22 A. 499 et seq. The general assembly of Connecticut would doubtless give suitable persons corporate powers for effectuating the provisions of this will, if necessary.

In Bronson v. Strouse, 57 Conn. 147, 17 A. 699, the will directed the executors to invest $1,000, and to apply the interest, so far as necessary, in keeping a burial lot in order, and added: 'And, if any surplus shall remain, I will that said surplus shall be given to some poor deserving...