In re Estate of Nilson

• Citation: 116 N.W. 971,81 Neb. 809
• Decision Date: 04 June 1908
• Docket Number: 15,166
• Parties: IN RE ESTATE OF NILS O. NILSON. S. O. TJOSVOLD ET AL., APPELLEES, v. IVER S. BYGLAND, EXECUTOR, ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

116 N.W. 971

81 Neb. 809

IN RE ESTATE OF NILS O. NILSON. S. O. TJOSVOLD ET AL., APPELLEES, v. IVER S. BYGLAND, EXECUTOR, ET AL., APPELLANTS

No. 15,166

Supreme Court of Nebraska

June 4, 1908

APPEAL from the district court for Boone county: JAMES N. PAUL JUDGE. Reversed with directions.

REVERSED.

J. J Sullivan and J. A. Price, for appellants.

H. C Vail and C. E. Spear, contra.

E. Wakeley, C. B. Keller and W. H. De France, amici curiae.

OPINION

LETTON, J.

Nils O. Nilson, a resident of the county of Boone, on the 29th of December, 1904, made his last will, which was duly admitted to probate after his decease. At the time of his death he left neither widow nor children, and his only heirs at law were brothers and sisters and the children of deceased brothers and sisters. After the probate of the will and the appointment of an executor, his heirs at law filed a petition in the county court, praying that certain provisions of the will be declared illegal and of no effect, and that in respect to the property disposed of thereby that Nilson be declared to have died intestate and said property to have vested in his heirs, and asking that the executor pay the proceeds thus disposed of to them. The provisions of the will attacked are as follows:

"Sixth. Being a native of the Tjosvold, Karmoen, Kingdom of Norway, where fishing and sailing are the chief industries, and being acquainted with the social and industrial conditions of the poorer classes of Norway, my sympathies go out to industrious and deserving servant girls, and to widows and orphans of deceased fishermen and sailors. Desiring to relieve such servant girls and widows and orphans, I give and bequeath to Akre church congregation (Akre Kirksogn) six thousand dollars, to be invested and reinvested forever in first mortgages on farm lands at the highest obtainable rate of interest; the principal shall remain inviolate, and the interest shall be paid annually on the first day of December, and be distributed on the following Christmas to worthy and needy servant girls and the widows and orphans of deceased sailors and fishermen who are not a public charge. I appoint the pastor (Sognepresten), the president of the county commissioners (Forman Sabets Ordforer), and the County Treasurer (Komunens Kaserer) of Akre Kirksogn and their successors in office, as trustees to carry out the provisions of this bequest. This fund shall be known as the 'Nils Olai and Gunild Nilson Tjosvold Julefund.'

"Seventh. I also give and bequeath to Bruflads church congregation (Kirksogn) Sondre Etnadalen, Valders, Kingdom of Norway, the sum of five thousand dollars, to be invested and reinvested forever in first mortgages on farm lands at the highest obtainable rate of interest; the principal shall remain inviolate, and the interest shall be paid annually on the first day of December, and be distributed the following Christmas to worthy and needy servant girls and the widows and orphans of deceased peasants or undertenants who strive and use their best efforts to maintain themselves and families so as not to depend on charity, but who are from force of circumstances unable to do so. I appoint the church pastor (Sognepresten), the president of the county commissioners (Forman Sabets Ordforer), and the county treasurer (Komunens Kaserer) of Bruflads Kirksogn and their successors in office forever, as trustees to carry out the provisions of this bequest. This fund shall be known as the 'Nils Olai and Gunild Nilson Tjosvold Julefund.'

"Eighth. I give and bequeath two-thirds of all the residue of my estate to Akre Kirksogn to become a part of the fund mentioned in paragraph six, and the remaining one-third to Bruflads Kirksogn to become a part of the fund mentioned in paragraph seven of this my last will and testament."

Answers were filed to the petition by the executor and by the Akre church congregation and the Bruflads church congregation. After a hearing the county court found that the provisions of the sixth, seventh and eighth clauses of the will were void and of no effect, and directed the executor not to pay the bequests to the congregations. A like judgment was rendered in the district court upon appeal, from which judgment the cause is brought to this court for review.

The contentions of the plaintiffs in the case are that the bequests contained in the sixth, seventh and eighth paragraphs of the will are indefinite and uncertain as to the beneficiaries and the objects of the testator's bounty; that such bequests are for the benefit of no defined class of persons, nor are the beneficiaries thereby confined to any particular locality; that the bequests are too indefinite and uncertain to be enforced, and are therefore void; that the trustees named in the will are not empowered by the testator to select the beneficiaries of such bequests and therefore that all of them must fail. We have been favored with able and painstaking briefs upon the questions involved, and with interesting oral arguments, not only by the attorneys for the respective parties to this proceeding, but by other learned and able counsel who are interested in a like question which may arise with reference to the will of John A. Creighton, in an action now pending in Douglas county. Much learning and diligence has been displayed by counsel in the presentation of the law with reference to the doctrine of cy pres, and whether or not testamentary trusts for charitable uses were administered by courts of chancery in England, exercising judicial powers alone, prior to the enactment of the statute of 43 Elizabeth; it being maintained by the plaintiffs that the trusts sought to be created by the will in question are so indefinite as to beneficiaries that they can only be upheld and administered by a court exercising the cy pres power, such as exercised by the courts of England under the statute of 43 Elizabeth and under the king's prerogative power, and not by virtue of judicial functions. In view of the decision of this court in the case of St. James Orphan Asylum v. Shelby, 60 Neb. 796, we deem it unnecessary to go into an extended review of a number of the questions discussed. We may therefore begin the consideration of this case, having it established by that opinion as the law of this state that the provisions of the statute of 43 Elizabeth for the administration of charitable trusts are not enforceable in this state, and that the doctrine of administering charitable trusts, cy pres, under the kingly prerogative is inapplicable. It is further settled by that case that the courts of this state have equal power in the administration of testamentary trusts for charitable uses as were possessed by the courts of England prior to and independent of the statutes of 43 Elizabeth, and that testamentary bequests for charitable purposes will be viewed with favor and will be carried into effect, if the same can be done consistent with established principles.

It appears from the record that in the kingdom of Norway there is a union of church and state, and that church congregations have from time immemorial constituted organizations or parishes somewhat of the nature of municipal corporations, having clearly defined territorial boundaries, and whose affairs are administered by officers selected or appointed in conformity with law, and possessing definite administrative powers. It further appears that bodies of this character, under the laws of Norway, have power and authority to accept such bequests as were made by Nilson, and to assume and administer trusts of the character mentioned in the will. The congregations interested have signified their acceptance of the bequest, and their consent to assume the trust imposed and to administer it through the officers named and their successors in office. It appears, then, that there is no room for contention over the fact that a definite trustee exists, competent to accept the trust, and able to administer it. It is suggested in the brief of the appellees that the persons now occupying the offices, the respective and successive incumbents of which are designated as trustees to administer the provisions of the will, have no power to bind their successors, but this we think is of no importance. It is the congregation or parish to whom the bequest is made, and the administration only is committed to its officers. The trustee which takes and holds the bequest is a continuing body, and the administration of the trust is a duty which appertains to the respective offices and is to be performed by the incumbents thereof. It is a duty owing to the congregation, and not to the present holders of the office, who are ex officio administrators of the trust, and is one which the congregation has the power or right and the authority to compel the proper performance of.

The main question in the case is whether or not the beneficiaries designated in the will are certain and definite enough so that the trustees may administer the trust without further direction or ascertainment than that furnished by the language of the will itself; or, if it shall be found that the description of the ultimate beneficiaries in the will is not sufficiently definite so that the trust may be so administered, whether any discretion or power is vested in the trustees to select or ascertain from the members of the indefinite class described the individuals who should be the recipients of the testator's bounty.

It is one of the characteristic qualities of a charitable trust that the persons or individuals for whose particular benefit the gift is made are not and cannot be definitely ascertained or pointed out in the gift. "In order that there may be a good trust for a charitable use, there must always be some public benefit...