First Portland Nat. Bank v. Kaler-Vaill Memorial Home

• Decision Date: 06 May 1959
• Docket Number: KALER-VAILL
• Parties: FIRST PORTLAND NATIONAL BANK, Successor, Ex'r, v.MEMORIAL HOME et al.
• Court: Maine Supreme Court

Page 708

151 A.2d 708

155 Me. 50

FIRST PORTLAND NATIONAL BANK, Successor, Ex'r, v. KALER-VAILL MEMORIAL HOME et al.

Supreme Judicial Court of Maine.

May 6, 1959.

Drummond & Drummond, Portland, for plaintiff.

Linnell, Perkins, Thompson, Hinckley & Thaxter, Portland, for Vestry of Trinity Church of St. Augustine, Protestant Episcopal Church in Diocese of Florida and Cathedral of St. Luke.

Porter Thompson and Royden Keddy, Portland, for Walter Vaill.

Hutchinson, Pierce, Atwood & Allen, Portland, for Frederick Vaill, Jr.

Ralph W. Farris, Asst. Atty. Gen., pro se.

John F. Dana, Portland, pro se.

Stephen S. Kaler, Portland, pro se.

Arthur A. Peabody, Portland, for Kaler-Vaill Memorial Home.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SIDDALL, Justice.

On report. This is a bill in equity brought by First Portland National Bank as successor executor of the will of Edward Griswold Vaill, late of Scarborough, for the interpretation and construction of the provisions of his will, and for instructions as to the disposition of one-fifth of his residuary estate upon the death of his wife. The case is before this court on report by agreement of all parties, upon the pleadings and so much of the evidence as is legally admissible, for such final decision as the rights of the parties may require.

The pertinent provisions of the will are set forth in the twelfth item thereof. After giving the residue of the testator's estate to his wife for life, the will contained the following provision:

'12. Upon the death of my said wife, whatever of my estate then remains updisposed of, either principal or income, together with all accumulations which may have accrued to it since my decease, shall be divided into five equal parts, and the proper legal representative of my estate at that time shall convey, assign and deliver as follows:

'One equal part to The Cathedral Church of St. Luke's at Portland, Maine, for the upkeep of the church buildings at said Portland;

'One equal part to Trinity Episcopal Church of St. Augustine, Florida;

'One equal part to the Bishop of the Episcopal Church of the Diocese of Florida, in memory of my sister, Julia Cornelia Vaill, the same to be used as said Bishop shall decide is most expedient from time to time for the benefit of the girls in said Diocese.

'One equal part to the Kaler-Vaill Memorial Home located at said Scarborough for the general purposes of said Home;

'One equal part to Walter E. Vaill of Litchfield, Connecticut, provided he be living at the time of my decease.'

The defendants in the bill are Kaler-Vaill Memorial Home, a corporation organized under the laws of Maine and located at Scarborough; John F. Dana and Stephen S. Kaler, executors of the will of Addie Kaler Vaill, also Known as Addie K. Vaill, widow of the testator; Frederick S. Vaill, Jr., nephew and sole heir-at-law of the testator; Cathedral Church of Saint Luke, Portland, a Maine corporation, The Vestry of Trinity Church of St. Augustine, a Florida corporation, The Protestant Episcopal Church in the Diocese of Florida, a Florida corporation, and Walter E. Vaill, the residuary beneficiaries under said will other than 'Kaler-Vaill Memorial Home. * * *'

Frank F. Harding as Attorney General for the State of Maine also was named as a defendant, but no interest under said will is now claimed by the state of Maine.

It will be noted that the names of the defendant church corporations differ slightly from those named in the will, but no question is raised that these defendants are not those designated in the will. For convenience, the defendant Kaler-Vaill Memorial Home is hereafter called Memorial Home.

The dispute in the case concerns that one-fifth part of the residue given to 'Kaler-Vaill Memorial Home located at said Scarborough for the general purposes of said Home.' The record shows that the testator died on May 21, 1944. His will was dated July 17, 1941, and was duly allowed on June 6, 1944. At time of his death the testator left a widow, Addie Kaler Vaill, also known as Addie K. Vaill, and as his sole heir-at-law, a nephew, the defendant Frederick S. Vaill, Jr. Neither the defendant Memorial Home nor any other legal entity of that or similar name existed in the state of Maine at the time of the death of the testator, or at any time prior thereto, or at any time thereafter until the incorporation of the defendant Memorial Home under the name of Kaler-Vaill Memorial Home. This corporation was organized under the provisions of R.S.1930, Chap. 70, as amended. Now R.S.1954, Chap. 54. A certificate of incorporation was filed with the Secretary of State on August 31, 1944, in which the purposes of the corporation are stated as follows:

'To provide a suitable home for such respectable aged and needy women, residents of Scarborough, as by reason of age and other circumstances shall be deemed proper subjects for such provision, and to provide a temporary home for such convalescent women, residents of Scarborough or elsewhere, as shall be deemed proper subjects for such provision. The corporation shall not be conducted for profit and no part of its net earnings shall inure to the benefit of any member of the corporation, or any individual, interested in the activities of the corporation.'

At the time of the hearing, the defendant Memorial Home offered in evidence against objection the testimony of Charlotte Stevens, a lifelong friend of Addie Kaler Vaill and a friend of the testator and said Addie since their marriage. This witness testified that the home occupied by the testator and his wife was known as the Kaler home prior to the marriage of Addie Kaler and the testator, and after the marriage it was known as the Kaler-Vaill home. She also testified that the mailbox in front of the home was marked KALER.

VAILL.

This witness also testified of conversations between the testator and his wife, particularly in April, May, and June of 1941, generally relating to the use after their deaths of the home known as Kaler-Vaill home, as a home for aged women of Scarborough. Objections were duly made to the admission of this testimony.

Addie Kaler Vaill died on March 17, 1957. Her will dated April 4, 1955, was duly allowed on April 3, 1957. The defendant Memorial Home offered in evidence a certified copy of the will on the grounds 'It is a fact of independent significance.' Objection to the admission of this evidence was duly made. By the terms of her will, Addie Kaler Vaill, after numerous bequests, left a sizeable bequest and devise, including her homestead (known as Kaler-Vaill home) to the defendant Memorial Home. The testatrix expressed a desire that her homestead property, with such additions thereto as might later be made, be called the Kaler-Vaill Memorial Home as a permanent home for certain respectable, aged, and needy women of Scarborough and as a temporary home for certain convalescent women residents of Scarborough or elsewhere who might be deemed worthy of admission. The residue of testatrix' property was given to the Canal National Bank of Portland as trustee for the benefit of said Kaler-Vaill Memorial Home. Her will also contained a statement that her husband had left one-fifth of his residuary estate upon her death to said 'Kaler-Vaill Memorial Home Corporation.'

Aside from property left by the will of Addie K. Vaill to the said defendant Memorial Home, it has not at any time owned any property, real or personal, and at no time has either (1) received any income or incurred any liability, except the liabilities and expenses incident to its organization, (2) carried on any corporate business except to adopt a vote authorizing the acceptance of the bequest under Item 12 of the will of the testator, or (3) performed any of the functions or done any acts necessary to carry out the purpose expressed in its certificate of organization or otherwise, other than the acceptance of its charter.

After the death of the testator, his widow, Addie Kaler Vaill, took steps to organize the defendant corporation, Kaler-Vaill Memorial Home, and she was in her lifetime the president and one of the directors of the corporation.

The issues to be decided in this case are as follows:

1. Does the defendant Memorial Home take the one-fifth residuary share given to the 'Kaler-Vaill Memorial Home located at Scarborough for the general purpose of the Home,' as the designated beneficiary in said will?

2. If not, does the said Memorial Home or any charity take the said share under the cy pres doctrine?

3. If neither the said Memorial Home nor any other charity is entitled to take the disputed share, does such share become intestate property, or does it pass under the will to the remaining residuary beneficiaries?

The defendant Memorial Home maintains that it is entitled to receive the said share either as the designated beneficiary or by application of the cy pres doctrine. The executors of the will of Addie Kaler Vaill take no position on the question of whether or not the defendant Memorial Home is entitled to receive any part of the residuary estate. They do contend that if it should be decided that the said defendant Memorial Home as residuary legatee or by application of the cy pres doctrine is not entitled to said one-fifth share of the residue of testator's estate, so much of said share as does not pass to said Memorial Home should pass as intestate property, one-half to the nephew, Frederick S. Vaill, Jr. and one-half to the estate of Addie Kaler Vaill. The Cathedral Church of St. Luke takes the position that it does not desire to oppose the right of the said Memorial Home to take said one-fifth share of the residue, but if said Memorial Home cannot take, that said share should be divided among the remaining residuary legatees. The defendants Vestry of Trinity Church of St. Augustine and The Protestant Episcopal Church in the Diocese of Florida take the position that the said...