Hagen v. Sacrison

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

123 N.W. 518

19 N.D. 160

HALVOR J. HAGEN v. SEVERIN SACRISON AND GUNHILD GUNDERSON

Supreme Court of North Dakota

November 10, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from District Court, Richland county; Allen, J.

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

Affirmed.

W. S Lauder and Ink & Wallace, for appellant.

Where a trust in a will is void, power of sale falls with it and the property descends to the heirs. Jones v. Kelly, 72 N.Y.S. 24; Harrington v. Pier, 82 N.W. 345; McHugh v. McCole, 40 L.R.A. 724; Haward v Peavey, 21 N.E. 503; 1 Williams on Exrs. 663, et seq.; Read v. Williams, 125 N.Y. 560; Parker v. Linden, 113 N.Y. 28, 20 N.E. 858; Penfield v. Tower, 1 N.D. 216, 46 N.W. 413.

Suspension of the power of alienation must be based on lives. Moore v. Moore, 47 Barb. 260; Henderson v. Henderson, 46 Hun. 509; Hawley v. James, 16 Wend. 61; Hone v. Van Schaick, 20 Wend. 564; Garvey v. McDevitt, 72 N.Y. 556; Cruikshank v. Chase, 113 N.Y. 337, 21 N.E. 64; DeWolf v. Lawson, 21 N.W. 615; Booth v. Baptist Church, 126 N.Y. 237, 28 N.E. 238; Trowbridge v. Metcalf, 5 A.D. 323, 39 N.Y.S. 241; People v. Simonson, 126 N.Y. 299, 27 N.E. 380; Brandt v. Brandt, 13 Miscl. 433, 34 N.Y.S. 684.

The will is void for uncertainty of trustee. King v. King, 3 P. 436; White v. Howard, 46 N.Y. 144; McCord v. Ochiltree, 8 Blackford, 15.

Also for uncertainty of beneficiaries. Timmerman v. Dever, 17 N.W. 230; 29 Am. & Eng. Enc. Law, 1056; Anderson's Law Dictionary, 1089; Langley v. Barnstead, 63 N.H. 247; Mock v. Murcie, 9 Ind.App. 536; In re Extension Hancock Street, 18 Pa. 26; Fosdick v. Hempstead, 11 L.R.A. 715; Attorney General v. Clarke, 2 Amb. Case, 221, p. 422; Tyssen, Char. Bequests, p. 141; In re Hoffen's Estate, 36 N.W. 407; Howard v. Peace Soc., 49 Me. 288.

A power given an executor to select beneficiaries must be definite. Downing v. Marshall, 23 N.Y. 366; Holland v. Alcock, 108 N.Y. 312, 16 N.E. 305; Tilden v. Green, 130 N.Y. 29, 14 L.R.A. 33; Read v. Williams, supra; People v. Powers, 147 N.Y. 104, 41 N.E. 432; Hope vs. Brewer, 136 N.Y. 126, 32 N.E. 558; Ayde v. Smith, 44 Conn. 60, 26 Am. Rep. 424; Fifield v. Van Wyck, 94 Va. 557, 64 Am. St. Rep. 746; Gambel v. Trippe, 75 Md. 252, 15 L.R.A. 235; Pritchard v. Thompson, 95 N.Y. 76; Lane v. Eaton, 69 Minn. 141, 38 L.R.A. 669; Heiss v. Murphey, 40 Wis. 276; In re Hoffin's Estate, 36 N.W. 407; Scott v. West, 24 N.W. 161; People v. Powers, 147 N.W. 104, 35 L.R.A. 502; In re Fuller's Will, 44 N.W. 304.

Courts cannot found charities; testator must devise his own scheme. Bascom v. Albertson, 34 N.Y. 584; Beekman v. Bonsor, 23 N.Y. 306.

Trustee must be capable of taking and holding. Kirk v. King, 3 Pa. 436; White v. Howard, 4 N.Y. 144; Green v. Dennis, 6 Conn 293, 16 Am. Dec. 58; State Methodist Episcopal Church v. Warren, 28 Md. 338; Lane v. Eaton, supra.

Chas. E. Wolfe, for respondent; Swedish Vice Consul, St. Paul, Minn., of counsel.

The rule against perpetuities is relaxed in favor of charities. Ould v. Washington Hospital for Foundlings, 24 L.Ed. (U. S.) 450.

Statute as to perpetuities is not violated where title can vest in the heirs or executor, subject to the execution of the trust. Baker v. Copenbarger, 151 Ill. 103; Downing v. Marshall, 23 N.Y. 366.

Device will not fail where intention is revealed, although not expressed with technical accuracy. Skinner v. Harrison Township, 18 N.E. 529; Van Gorder v. Smith, 99 Ind. 404; Bell County v. Alexander, 22 Tex. 351.

"The poor" of district, mean those maintained at public expense. Heuser v. Harris, 42 Ill. 425; Prickett v. People, 88 Ill. 115; Preachers Aid Society v. England, 106 Ill. 125; Mary's Succession, 2 Rob. 438; Sickles v. New Orleans, 29 C. C. A. 204; State v. Osawkee Twp., 14 Kan. 418; State v. Gerard, 37 N.C. 201; Beardsley v. Selectmen, 53 Conn. 489.

A municipality charged with care of the poor, can be compelled to act as trustee. Perin v. Carey, 16 L.Ed. 701; McDonogh v. Murdoch, 14 L.Ed. 732; Dailey v. New Haven, 14 L.R.A. 69; Craig v. Secrist, 54 Ind. 419; Pond v. Berg, 10 Paige Ch. 140; Masterson v. Townshend, 10 L.R.A. 816; Holmes v. Walter, 62 L.R.A. 986; Moran v. Moran, 39 L.R.A. 204; Crerar v. Williams, 21 L.R.A. 454.

A trustee need not be named if pointed out. 2 Pom. Eq. Jur. Sec. 1002, 2009, 1013; Masterson v. Townshend, supra.

The trustee designated in a will or a beneficiary can enforce it. Chambers v. Baptist Educational Society, 40 Ky. 215; Strong v. Doty, 32 Wis. 381; People v. Cogswell, 45 P. 270; Baptist Church v. Presbyterian Church, 57 Ky. 635; Attorney General v. Soule, 28 Mich. 153; Tryee v. Bingham, 100 Mo. 451; Trustees Emory & Henry College v. Shoemaker College, 92 Va. 320, 23 S.W. 765; Vidal v. Girard, 11 L.Ed. 205; Grimes v. Harmon, 35 Ind. 198; Tunstall v. Wormley, 54 Tex. 476; Girard v. Philadelphia, 19 L.Ed. 53; Sickles v. New Orleans, 26 C. C. A. 204, 214; Rev. Codes, 1905, 4892.

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 finding 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, Severin 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 business adviser and manager who has had a very large share in the care and management of my property and interests and to whose business judgment I am greatly indebted; and as I have confided in him fully during my lifetime and have found my confidence well founded and merited I have no hesitation whatever about reposing like confidence in his integrity and ability with reference to my property after my death. * * *

"'Item 6. Having provided my son and only heir a competency herein having all my life long lived frugally and labored hard in the acquirement of my property, and feeling certain that the mantle of true charity covereth a multitude of shortcomings, it is my will and earnest desire that the remainder of my estate hereinafter specifically described shall be devoted to a worthy charity as hereinafter specified. To that end, therefore, I will and direct that all my remaining lands [describing the same] shall be, by my executor, sold 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 of said Richland county, and the fund arising from such sale of lands, together with its earnings, if any, during said time, shall by my said executor be devoted to charity as nearly as may be in the following manner, to-wit: I desire that there shall be founded, established and maintained in my native county or district known as Taskog Sogn Darsland, in the Kingdom of Sweden, a children's home for the reception, care, nurture, succor and support of the destitute children of that vicinity, and that such children's home, when so established, shall be under the charge and custody of the proper officers of such district of Sogn, having the proper supervision of the poor, but whose official designation is not known to me at this time, the selection of such officers being left to my executor to be selected and designated in accordance with the laws of the Kingdom of Sweden. That this object may be accomplished I will and direct that my said executor shall use such part or portion of the funds arising as aforesaid as he may deem reasonably necessary for the establishment of such children's home and that the remainder of such fund shall be by him turned over to the proper officers aforesaid to be by them safely invested in accordance with the laws of the Kingdom of Sweden, the interest and income therefrom to be used by such officers for the support and maintenance of such children's home. It is my...