Klumpert v. Vrieland

• Decision Date: 10 May 1909
• Citation: 142 Iowa 434,121 N.W. 34
• Parties: KLUMPERT v. VRIELAND ET AL.
• Court: Iowa Supreme Court

142 Iowa 434

121 N.W. 34

KLUMPERT

v.VRIELAND ET AL.

Supreme Court of Iowa.

May 10, 1909.

Appeal from District Court, Sioux County; F. R. Gaynor, Judge.

D. J. Klumpert died testate September 23, 1906, leaving real and personal property of the estimated value of $12,760. His will, duly admitted to probate, after providing for the payment of debts, directs the disposition of his property as follows: “(1) To Jan. Vrieland, Ryssen, Netherlands, Prov. Overssel, one thousand dollars. (2) To Gerhardth Vrieland Deventer two hundred dollars. (3) To the children of D. J. Klumpert's brother Frederick Klumpert, Voorst, Gelderland, Netherlands, three hundred dollars. (4) To First Presbyterian Church of Hospers, Sioux county, Iowa, five hundred dollars after the death of both Mr. and Mrs. Klumpert; interest on said sum to be paid at the rate of 6 per cent. to Mrs. D. J. Klumpert if she should survive. (5) To the children of Jannes Oldenkamp after the death of both Mr. and Mrs. Klumpert fifteen hundred dollars, interest 6 per cent. to be paid Mrs. D. J. Klumpert should she survive. (6) To the widow of H. Hagen, Le Mars, Iowa, five hundred dollars. (7) To Dries Mouw, Hospers, Iowa, one hundred dollars. (8) The balance to the poor of Voorst, Gelderland, Netherlands. I appoint Rev. Dries, Monroe Hospers, Sioux county, Iowa, as executors of this.” This was subsequently changed by codicil striking out the fifth clause. In this action the construction of the eighth clause is sought; plaintiff asserting its invalidity for that the beneficiaries intended are uncertain and no trustee is named or power of appointment conferred in the will. The executor answered by alleging the validity of the will and pleading: That Voorst is a municipal corporation in the province of Gelderland, in the Netherlands; that by the Civil Code of that county “the provisions in a will in favor of the poor without further identification is supposed to be made in behalf of all the poor without exception of religion, who in the community where the inheritance has become vacant are supported by institutions of charity”; that no trustee is necessary, but that under the laws the legacy is to be divided among the institutions of charity, each in proportion to the number of poor supported and in trust for them; that at the time of the testator's death there were 10 such institutions in Voorst, supporting 132 poor persons (stating the number supported by each and the portion of the legacy to which each institution is entitled); and that such institutions have authority to receive such funds as trustees for the poor of Voorst. To this answer a demurrer was interposed and sustained by the court. As the executor elected to stand on the ruling, an order was entered declaring the eighth clause void and directing the settlement of the estate with that eliminated. The executors appeal. Reversed.G. W. Pitts and G. Klay, for appellants.

Van Oosterhout & Hospers, for appellee.

LADD, J.

The sole inquiry is whether the residuary clause of decedent's will leaving of his property “the balance to the poor of Voorst, Gelderland, Netherlands,” is valid, This necessarily depends on the law of decedent's domicile and location of the property, rather than the place of distribution. Caruth v. Caruth, 128 Iowa, 121, 103 N. W. 103.

The objections to the clause are: (1) That the beneficiaries are uncertain and impossible of identification; (2) no trustee is designated to select them; and (3) no trust is created. In passing on the questions thus raised, it will be well to keep in mind the suggestion of Gibson, C. J., in Bask v. Bask, 9 Pa. 260, that the courts have no more authority to make wills for the dead than contracts for the living, according to judicial notions of fitness and propriety, and also the statement of Ryan, C. J., in Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, that it is as much the duty of courts to uphold and enforce an individual's will after the death as to uphold and enforce his contracts made during life. So that, while courts of equity will look with favor on all charitable bequests, they will not ignore established principles of law in order to give them effect. Nevertheless, as said by Lord Harwicke, in speaking of such a bequest, “there is no authority to construe it to be void, if by law it can possibly be made good.” At the civil law legacies for charity were not allowed to fail because of the uncertainty or failure of the persons or objects for which destined. If left to the poor generally, it was sustained by giving it to the local hospital if there were one, and, if not, to the poor of the parish. If the testator appointed a person to carry the charity into effect, he was compelled to perform it; if no person was designated, the bishop or ordinary of the place of testator's nativity might compel its due execution. 2 Story's Eq. Jur. (13th Ed.) §§ 1137, 1140. Writers seem to agree that the rudiments of the law of charities in England were derived from the civil law, and that, long prior to the enactment of the statute of charitable uses in St. 43 Elizabeth, the court of chancery exercised in virtue of its inherent authority a large jurisdiction in cases of charities. Vidal v. Girard's Executors, 2 How. 127, 11 L. Ed. 125;Jackson v. Phillips, 14 Allen (Mass.) 539, 576;Bascom v. Albertson, 34 N. Y. 584;Griffith v. State, 2 Del. Ch. 421.

As was observed in Jackson v. Phillips, supra, that statute did not enlarge the discretion of the chancellor to depart from the expressed intention of the founder of a charity, save under the sign manual of the crown. See 2 Perry on Trusts, § 694. The cases under the latter were of two classes: (1) Bequests to peculiar uses, charitable in their nature but illegal as for a form of religion not tolerated by law; and (2) gifts to charity generally, without any trust interposed, and in which either no appointment is provided for, or the power of appointment is delegated to persons who die without exercising it. Discredit was brought upon the doctrine of cy pres by the arbitrary disposition of property by the sign manual. Thus, in the case of a gift of the first class to a Jesuba or assembly for reading the Jewish law it was applied to the support of the Christian Chapel at a foundling hospital. Nor was the power of enforcing bequests of the second class judicial, for the statute contemplated, not the expounding and carrying out of the testator's intentions, but the prerogative power of ordaining what he had failed to express. This power of disposal by a sign manual of the crown was in direct opposition to the declared intention of the testator, and its exercise is generally held to be inappropriate to the institutions of this country. Grant v. Sanders, 121 Iowa, 80, 95 N. W. 411, 100 Am. St. Rep. 310. In Jackson v. Phillips, supra, Judge Gray observed that this power “has never, so far as we know, been introduced into the practice of any court of this country; and, if it exists anywhere here, it is in the Legislature of the commonwealth as succeeding to the powers of the king as parens patriæ.” In so far as the statute recognizes, defines, or indicates what are “charitable uses,” it is part of the common law and undoubtedly has influenced the courts of this country in the direction of liberal construction of instruments which undertake to bestow charity. See note to Hoeffer v. Clogan, 63 Am. St. Rep. 253. Under that statute, as well as independent of it, the purposes of the bequest before us must be regarded as charitable. Indeed, the relief of the poor and unfortunate has been, and doubtless will ever continue to be, the most prolific field of charity. That trusts for the benefit of the poor of a designated city or locality will be enforced is no longer an open question. Hunt v. Fowler, 121 Ill. 269, 277, 12 N. E. 331, 17 N. E. 491;Phillips v. Harrow, 93 Iowa, 94, 61 N. W. 434;Landis v. Wooden, 1 Ohio St. 160, 59 Am. Dec. 615;Hesketh v. Murphy, 35 N. J. Eq. 23;Id., 36 N. J. Eq. 304;Howard v. American Peace Society, 49 Me. 288, 302;Derby v. Derby, 4 R. I. 414;Williams v. Pearson, 38 Ala. 299; 2 Perry on Trusts, § 732; In re Strong's Appeal, 68 Conn. 527, 37 Atl. 395;Zeisweiss v. James, 63 Pa. 465, 3 Am. Rep. 558. See Miller v. Atkinson, 63 N. C. 537; 2 Underhill on Wills, § 816; 3 Pomeroy, Eq. § 1022.

True there are decisions to the contrary, but they are by courts holding that the beneficiaries must be as certain as the donees in private trusts. Dashiel v. Attorney General, 5 Har. & J. (Md.) 392, 9 Am. Dec. 572;Beall v. Drane, 25 Ga. 430. See note to Fifield v. Van Wyck, 64 Am. St. Rep. 760. In carrying into effect a legacy to an individual, the mode is deemed to be of the substance of the legacy; but, when the legacy is to charity, the court considers the charity as the substance, and, if the mode prescribed shall fail, will provide another rather than allow the purpose to fail. Story, Equity, § 1167; Heuser v. Harris, 42 Ill. 425; Jackson v. Phillips, supra. Even though no trustee be named in the instrument creating a charitable trust, it will not be allowed to fail because of the want of a trustee to carry out the design of the donor. Under such circumstances authority to the court to appoint is clearly to be implied. Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397;Sears v. Chapman, 158 Mass. 400, 33 N. E. 604, 35 Am. St. Rep. 502;Howard v. American Peace Society, 49 Me. 288;Minot v. Baker, 147 Mass. 348, 17 N. E. 839, 9 Am. St. Rep. 713; Attorney General v. Jackson, 11 Ves. 365.

The more difficult inquiry is whether a trust was created by the will. That this was not done in express language is plain. But this gift was to the poor in a foreign country, and is not the design that the benefaction was to be executed through the executor or another as trustee to be implied from the nature of the gift? An examination of the decisions construing similar testamentary clauses may...