Dwyer v. Leonard

• Decision Date: 06 March 1924
• Court: Connecticut Supreme Court
• Parties: DWYER v. LEONARD ET AL.

124 A. 28

100 Conn. 513

DWYER v. LEONARD ET AL.

Supreme Court of Errors of Connecticut.

March 6, 1924

Appeal from Superior Court, Hartford County; John W. Banks, Judge.

Suit by John J. Dwyer, executor, against Hannah Leonard and others for construction of the will of Ellen P. Mineiky, deceased. Reserved for advice of Supreme Court of Errors on agreed statement of fact. Questions answered, and judgment advised.

The testatrix, a resident of Hartford, died September 15, 1915, leaving a will admitted to probate in October, 1915. The final accounting of the executor has been delayed for reasons not stated, except that an appeal from a decree of the probate court relating to the amount claimed by the executor for services is still pending and undecided.

In September, 1920, the defendant Hannah Leonard, one of the heirs and next of kin of The testatrix, filed a petition in the probate court alleging that paragraph 10 of the will was void, that the residue therein attempted to be disposed of was intestate estate, and praying for an order of partial distribution as to such residue.

The questions reserved for our advice are as follows:

(a) Whether or not the gift set forth in the tenth paragraph of the will of Ellen P. Mineiky, deceased, is void because of uncertainty as to the class of persons to be benefited thereby.

(b) Whether or not said gift under said tenth paragraph of said will is void because said will does not provide a sufficiently definite or certain mode or means of selecting the class of persons to be benefited thereby.

(c) Whether by said tenth paragraph of said will The testatrix intended to make a gift to the New York Association for Improving the Condition of the Poor, of which the income was to be expended for certain of its purposes, or to establish a trust for the benefit of the class of beneficiaries therein described.

(d) Whether or not the purposes of the gift specified in said tenth paragraph of said will are within the powers and purposes of said New York Association for Improving the Condition of the Poor?

(e) Whether or not the New York Association for Improving the Condition of the Poor may qualify and act in the state of Connecticut as trustee for the purposes stated in said tenth paragraph of said will.

Maltbie J., dissenting in part.

John J Dwyer, of New York City, in pro per.

Alvan Waldo Hyde, of Hartford, for defendant the New York Association for Improving the Condition of the Poor.

Henry J. Calnen, of Hartford, for defendants Hannah Leonard and others.

BEACH J. (after stating the facts as above).

The tenth paragraph of the will reads thus:

" Tenth:--All the rest, residue and remainder of my property, whatever the same may be and wherever situated, I give, devise and bequeath to the New York Association for Improving the Condition of the Poor, said association being located in the city of New York, in the state of New York, and having its office and place of business at 105 East 22nd street, in said city of New York, to hold the same in trust, and to expend the income therefrom annually in sending poor children residing in any part of said city of New York, in the country during the summer months, and in maintaining them while in the country."

Questions (a) and (b) relate to the validity of the testamentary disposition of the residue, and questions (c), (d), and (e) to the legal character of the gift and to the capacity of the New York Association for Improving the Condition of the Poor to take and administer the fund.

The New York Society for Improving the Condition of the Poor, hereinafter called the corporation, is a corporation organized under the laws of New York for certain charitable purposes. In the original certificate of incorporation dated December 11, 1848, its purposes are set forth in general comprehensive terms, and in 1921 (Laws 1921, c. 71) an act to broaden the purposes of the corporation was passed by the New York Legislature and approved by the Governor of New York. Among the means which the corporation is by the last-named act authorized to employ in carrying out its general purposes are these:

" The conduct of homes, dispensaries or hospitals, vacation homes, playgrounds, fresh air excursions, laundries or baths, or by other means," etc.

By a statute of New York (Consol. Laws, c. 23, § 11) every corporation has power to acquire by " gift" or " bequest," and " to hold and dispose of, such property as the purposes of the corporation shall require," etc.

The contention that the disposition of the residue is invalid is based upon the claim that (1) the beneficiaries of a charitable trust must be specific, while in this case they are wholly uncertain; (2) there must be a definite or certain mode or means of selecting the class of persons to be benefited. These propositions are supposed to be supported by White v. Fisk, 22 Conn. 31, where the testator established a trust for the payment of income for certain purposes, and added:

" Any surplus income that may remain, to the extent of one thousand dollars per annum, I direct to be expended, by my said trustees, for the support of indigent pious young men, preparing for the ministry, in New Haven, Conn."

The trustees were individuals appointed by name, and the trust attempted to be created by the words quoted was held void for uncertainty. The case is so familiar and has been so often discussed that it is unnecessary to say more than that the conclusion of the court was based on the failure of the testator to give the trustees any power of selection among the class, and upon the fact that the class itself was described in such general terms that without a discretionary power of selection the beneficiaries could not be identified. The opinion is, however, careful to point out that, if the gift had been to a charitable corporation authorized by its charter to administer the fund for the purposes thus imperfectly described, a very different question would have been presented, saying:

" If a bequest, for the purpose indicated in this will, in this respect, had been made to a college, a theological institute--the Congregational Society of which the testator was a member--or other body which had, or might have, a supervision or interest in the general object of this charity, and rules for its management, it would have presented a very different case; but as it is, we think the provisions of this will in this matter, have been left by the testator quite too loose and indefinite for judicial action."

The distinction thus pointed out is palpable. A gift to a charitable corporation, whether expressed in terms of trust or otherwise, to expend the income for its general purposes or for a special purpose within its charter, is a gift to a legal person already having all necessary authority to administer the fund in accordance with its charter. Every corporation has, in addition to the powers expressly conferred upon it, such implied powers as are necessary to carry its express powers into effect. City of Bridgeport v. Housatonuc R. Co., 15 Conn. 475, 502. We have no doubt that this corporation has express power to send " poor children residing in any part of the ...