Fox v. Gibbs

• Decision Date: 02 December 1893
• Citation: 86 Me. 87,29 A. 940
• Parties: FOX v. GIBBS et al.
• Court: Maine Supreme Court

29 A. 940

86 Me. 87

FOX

v. GIBBS et al.

Supreme Judicial Court of Maine.

Dec. 2, 1893.

Report from supreme judicial court, Cumberland county.

Bill in equity, heard on bill and answer, brought by Frederick Fox, surviving executor and trustee, to obtain the construction of the residuary clause in the will of Joseph Walker, of Portland, deceased.

From the joint and several answers of the respondents, it appears that the residuary fund remaining in the hands of the executor, after payment of debts and legacies, amounts, at the appraisal, to $225,000; and that the respondents are all heirs at law of said Walker, and are all of them legatees under said will, and have all received the legacies given them thereby.

Answering further, they say "that they are advised and believe, and therefore allege, that the trusts attempted to be created in and by the thirty-seventh item of said will are invalid and void, and that all the said residuary fund descends as undevised property to said respondents," etc. Decree for complainant.

Frederick Fox and Symonds, Snow & Cook, for plaintiff. Nathan & Henry B. Cleaves, Stephen C. Perry, and Henry W. Swasey, for defendant Albert D. Walker. S. C. Strout, H. W. Gage, and C. A. Strout, for other defendants.

PETERS, C. J. Joseph Walker, the testator, dying childless, left a will containing 36 bequests of public and private donations, and ending with the following residuary clause:

"Thirty-Seventh. Inasmuch as there may be charities in Portland, or the vicinity thereof, and which, if I were living, I might desire to assist, or benevolent, and charitable objects and associations which, if I were alive, I might desire and wish to promote and strengthen by gifts, and pecuniary help; or schools and places of learning, or hospitals, or libraries which, if aided financially, would increase the benefits and advantages derived from education and instruction; or worthy individuals needing pecuniary assistance to obtain knowledge; or institutions and associations formed and organized for the welfare, advancement, benefit, and good of the public, and which, if living, I should manifest an interest therein, and therefore aid and assist the same; and with the intention, hope, wish, and desire that the rest, residue, and remainder of my estate may be used to benefit society, relieve pain and distress, assist worthy and deserving charitable and benevolent associations and objects, give instruction and education to those who are seeking for the same,—in order, therefore, to carry out my views and wishes, I do, therefore, for the proper execution of these purposes, hereby give, devise, and bequeath, in trust, unto Frederick Fox and Albert B. Stevens, both of said Portland, and the survivor of them, and to their successors as my trustees, and upon the following conditions and trusts, all the rest, residue, and remainder of my estate of every description, real, personal, and mixed, together with any and all estate and bequests, residue or any other part or portion of my estate which, by the terms and items of this, my last will and testament, have, shall, or may become, make, and form a portion of said remainder and residue of my said estate; and said gifts, bequests, and devises are made to said Fox, and said Stevens, and the survivor, and their successors as my trustees, upon the following conditions and trusts, and for the due performance by my trustees of the following duties and trusts, viz.: My said trustees as aforesaid shall, within fifteen years from my decease, use, give, and expend, also distribute said rest, residue, and remainder of my estate, with interest, dividends, income, and all accumulations arising or growing out of the same, for the causes of education and learning, for the promotion, assistance, and growth of benevolent and charitable associations and objects. Said trustees as aforesaid shall not be restricted in this work. They are to be the sole judges in what manner said residue and remainder of my estate shall be so used and expended, and to whom, to what organizations and objects, in what amounts, and at what times, in what manner, and under what restrictions, conditions, and regulations, the same shall be given, used, expended, and distributed; the only restrictions and conditions I put upon said trustees as aforesaid being that all of said residue, and income and accumulations as aforesaid, shall be used, given, expended, and distributed by them for worthy, educational, charitable, and benevolent purposes and objects, and not for any other purposes whatever; said duties and acts of my said trustees to be done and performed within the county of Cumberland, state of Maine, and during said fifteen years from my decease.

"The charities I have remembered in this, my last will and testament, if thought advisable by my trustees, may be further assisted; hospitals, schools, seats of learning, charitable and benevolent associations not organized or created at the date of this will, but which shall or may be created hereafter, and worthy individuals needing aid, are to be helped by my trustees from said remaining trust estate, and the income thereof, if said trustees think it wise so to do, and under the restrictions I have placed upon said trustees."

Some of the heirs at law of the testator oppose the approbation of this residuary bequest by the court, contending that it is void for its indefiniteness and uncertainty. This objection is not taken, however, by all the counsel for the different contestants.

It is maintained by some writers that the very omission of specification as to persons and objects in a bequest of this kind is a distinctive test of its true charitable character, and that ...