Hagen v. Sacrison

• Decision Date: 10 November 1909
• Citation: 19 N.D. 160,123 N.W. 518
• Parties: HAGEN v. SACRISON.
• Court: North Dakota Supreme Court

19 N.D. 160

123 N.W. 518

HAGEN

v.SACRISON.

Supreme Court of North Dakota.

Nov. 10, 1909.

Syllabus by the Court.

By his will, the testator, after providing a competency for his son and sole heir at law, directed that the remainder of his estate (specifically describing same) shall be devoted to a worthy perpetual charity by the establishment in his native country, the Kingdom of Sweden, of a children's home “for the reception, care, nurture, succor and support of the destitute children,” and directing that such home, when established, shall be under the charge and custody of the proper officers in Torrskog socken having the proper supervision of the poor. To such end he directed his executor to sell the real property described “at such time or times after my death as in his best judgment, will bring the most money into his hands, but, in any event, not later than five years after my death, unless such period be extended by order of the county court.” Then follow certain recommendations to his executor that he arrange with proper authorities of Torrskog socken for the contribution by such socken of a sum of money equal to one-half the cost of establishing and maintaining such home, if possible, and that the services of such authorities and officers in and about the control and management of the home shall forever be free of charge as far as the fund therein created is concerned. Then follows the following:

“I desire that, in case any of the matters of detail herein set forth cannot, either by reason of lack of legal authority or because of conflict with any law or for any cause, be carried out as herein expressed, it shall be understood that my directions herein are merely recommendations and that the same shall not stand in the way of the accomplishment of the main object of this bequest, to wit, the amelioration of the condition of the poor children in Taskog Sogn aforesaid.

Inasmuch as it is impossible for me to, even generally, direct the carrying out of the intent of this bequest, it is necessary that a great latitude be left to my executor in the accomplishment of my main object; and having full confidence in him, both as to his ability and integrity, I willingly leave every matter of judgment and discretion entirely to him and, in all matters pertaining to this bequest, I grant to him the fullest powers conformable to law, the same as if such matter were specifically mentioned and he thereunto especially empowered.”

Held: (1) That the direction to sell the real property described operated to convert the same into personalty. (2) That the mere creation of the trust therein mentioned does not, ipso facto, suspend the power of alienation. That such power of alienation is only suspended by such a trust, where a trust term is created, either expressly or by implication, during the existence of which a sale by the trustee would be in contravention of the trust. Where the trustee is empowered to sell the land, without restriction as to time, the power of alienation is not suspended, although the alienation in fact may be postponed by the nonaction of the trustee, or in consequence of a discretion reposed in him by the creator of the trust.

The statute of perpetuities is pointed only to the suspension of the power of alienation, and not at all to the time of its actual exercise.

The statute against perpetuities is not violated by directions in the will which may involve some delay in the actual conversion of the property, arising from any cause; nor does the fact that the trustee is vested with a discretion to delay the sale of the real estate, not exceeding a certain period mentioned, involve an unlawful suspension of the power of alienation.

Charitable trusts, which is the character of the trust in the case at bar, are highly favored, and a liberal construction will be adopted in order to render them effectual.

The provisions of the bequest directing the executor to make certain arrangements, if possible, with the authorities in Torrskog socken regarding the establishment and maintenance of such home, are construed as mere recommendations of the testator, and not as conditions precedent to the carrying out of such bequest.

The provisions of the will relating to such charitable bequests are not too vague, indefinite, and uncertain to be legally enforceable. The owner of property may do as he pleases with it, provided the disposition be not to unlawful purposes, and what he may do himself he may do by agent while living, or by his executor after death. It is, accordingly, held that the testator had a legal right to vest in his executor the widest possible latitude for the exercise of his judgment in carrying out such bequest. The provisions of the will, which it is contended render the same indefinite and uncertain, are, as above stated, merely recommendations, and not conditions precedent. Furthermore, the record discloses that the municipality known as “Torrskog socken” is ready and willing to accept and carry out the terms of the trust, and, in any event, these are questions which do not affect the validity of the bequest.

The fact that the will fails to expressly designate a trustee by name to hold such fund and to administer the trust does not operate to defeat the trust, when, by the language of the will, aided by extrinsic evidence for the purpose of identification, it can be determined whom the testator intended. The fundamental maxim applies that, “That is certain, which is capable of being made certain.”

Held, construing the will in the light of the foregoing rule, that the testator manifestly intended to designate as trustees of this fund such officers and their successors in office as have, under the laws of Sweden, supervision of the poor in Torrskog socken. Whether such designation operates in law as a designation of the municipality of Torrskog socken as such trustee, not determined.

Where a charitable bequest is made to trustees in a foreign country, the court will not assume that, should such trustees refuse to act, a foreign court will permit the trust to fail, and will assume that it will appoint a trustee. The general rule is that a trust shall never fail for the want of a trustee.

Until the real property is actually converted into money by the exercise of the power in trust conferred upon the executor, the legal title thereto rests in the executor as trustee by necessary implication, or in the heir at law for want of the designation of a trustee in the will. If in the latter, it is not by virtue of the will, but by operation of law on account of the failure of the testator to designate such trustee in his will.

Such will confers upon the executor a power in trust to sell and convert such real property into money, and such power may be executed without any act on the part of the heir, even though he be held, by operation of law, to be the trustee of the legal title to these lands.

Construing the language of the will, held, that such will is not void for uncertainty as to the beneficiaries. The intention of the testator apparently was to restrict such charity to the poor and destitute children in Torrskog socken, and the class of persons intended as the objects of his bounty is sufficiently designated. The general class designated may or may not include the pauper poor. This was a matter which he had a legal right to and did impliedly delegate to the trustees of the fund to be administered; such trustees being impliedly clothed with the incidental power to select the individuals, within the general class, who are to partake of his bounty.

Appeal from District Court, Richland County; Allen, Judge.

Action by Halvor J. Hagen against Severin Sacrison. Judgment for plaintiff, and defendant appeals. Affirmed.

Action by Halvor J. Hagen against Severin Sacrison involving the construction of item 6 of the last will and testament of one John Sacrison, deceased. By this appeal the conclusions of law of the district court are alone challenged; there being no dispute as to the facts. The findings of fact of that court, so far as here material, together with its conclusions of law, are as follows:

“(1) That John Sacrison died on or about the 25th day of November, 1905, in Richland county, N. D., and was, at the time of his death, a resident of said Richland county. That he left a last will and testament, which was, with the petition mentioned in findings of fact No. 2, presented to and filed in the county court of Richland county and is a record therein. That at the time of his death said testator owned estate, both real and personal, within the state of North Dakota and in the said county of Richland. That in said will the petitioner, Halvor J. Hagen, was named as sole executor. That said testator left no wife and only one child, to wit, the respondent, Severin Sacrison, his son.

(2) On December 1, 1905, the petitioner, Halvor J. Hagen, duly presented and filed in the county court of Richland county a petition for the probate of the will of said John Sacrison, deceased, which will (omitting the first four items thereof which provide for the payment of his debts and funeral expenses and a liberal allowance to his only son and sole heir, Sevenin Sacrison) is as follows:

‘Item 5. I nominate and appoint my friend and business adviser of many years standing, Halvor J. Hagen, * * * sole executor of this will, granting unto him full power to do any and all lawful acts herein enjoined upon or recommended to him, and especially to make any and all conveyances of lands or transfers of property which may be necessary or advisable to enable him to fully and effectually carry out the intent of this will, and particularly the provisions which are to follow. That there may be no misunderstanding or misinterpretation of the provisions which follow and of the confidence reposed by me in my said executor, I desire to state that my said executor has, for many years, been and now is, my chosen...