HANFORD
District Judge.
The
complainant, who is admitted to be a sister and the sole heir
of Charles A. White, deceased, attacks the validity of her
brother's will, and the object of her suit is to recover
possession of his estate, or the residue thereof, remaining
in the hands of the executors named in his will. The will was
executed in this state by the testator, who was a citizen of
this state, and who died leaving real and personal property
in this state admitted to be of more than $50,000 value. The
testator died in this state in the year 1898, and thereafter
his will was duly admitted to probate and letters
testamentary were issued by the superior court for King
county to the defendants, they being the executors named in a
codicil, and they have acted as such executors and as
trustees under the will, and admit that they now have the
title to and possession of part of the estate. The following
is a copy of the material parts of the will:
'I
Charles A. White of the city of Seattle, county of King
state of Washington, being of sound mind and memory, do
hereby make, publish and declare this to be my last will and
testament, that is to say:
'First:
I direct that my body be embalmed and cremated as soon as
possible after my death, at the nearest crematory existing
at the time to the place of my decease.
'Second:
I direct that my funeral expenses, the expenses of my last
sickness, and cremation, and all debts owing by me, be paid
as soon as possible after my decease and out of the first
moneys that shall come to the hands of my executors,
hereinafter named, from any portion of my estate, real or
personal.
'Third:
All the rest, residue or remainder of my estate, real,
personal and mixed, wherever situated, I give and bequeath
to my executors, Frank I. Blodgett and Henry W. Stein, or
the survivor of them, in trust nevertheless and upon the
following conditions, to-wit:
'That
the said trustees or the survivor of them as speedily as
consistent with the best interest of my estate, shall
sell all the property belonging to my said estate, and
after paying the necessary and proper expenses of said
trust, pay the proceeds of said sale to the Trustees of
the Theosophical Society at Adyar, Madras, India, or
wherever the said Theosophical Society may be located,
appointed or acting under a deed of trust, dated the 14th
day of December, A.D., 1892, and duly enrolled.
'And
I direct that the receipt of the said trustees or the
reputed trustees for the time being, shall be sufficient
discharge for the said legacy. It is my express will that
the said legacy to the said Theosophical Society in India
be used for the purpose as far as possible in obtaining
translations into English of the ancient Hieratic
Scriptures, believed to exist in India and elsewhere, for
the use of the Theosophical Society, and its branches all
over the world.
'Fourth:
It is my will, that upon my death this my will shall be
proved as such in the superior court for the county of
King, state of Washington, and order of probate thereof
obtained, and that no further proceedings be had or taken
in the matter of this my will nor in the matter of my
estate by said superior court, tribunal or officer
whatsoever; and it is my will that, upon my death my said
executors forthwith enter into possession of my estate, and
the whole thereof, and that absolute title rest in my said
executors, hereinafter named; in trust however as
hereinbefore provided, without any other or further
proceedings in or on the part of said superior court,
board, tribunal or officer whatsoever; and shall be managed
by them without
accountability therefor, or supervision thereof, or control
thereof, of any other court, board, tribunal or officer
whatsoever.
'Fifth:
I further direct that my said executors pay no claim or
claims that may be made by my former wife, Elin M. C.
White, or whatever her name may be, except in accordance
with my statement of accounts, hereto attached, unless
otherwise ordered in a court of justice, having competent
jurisdiction.
'Sixth:
I hereby nominate and appoint as the executors of this my
will and testament, Frank I. Blodgett and Henry W. Stein,
both of Seattle, Washington, and direct that they be not
required to give bonds.
'Seventh:
I hereby revoke all former wills made by me.'
This
court has heretofore decided that the will is a valid
testamentary conveyance of all the property and pecuniary
rights of the testator to the executors as trustees, and that
the complainant cannot prevail in an action at law to recover
possession of the estate (156 F. 280); and in a separate suit
the court has rendered a decree establishing the superior
right, in equity, of purchasers in good faith from the
executors and trustees of part of the real estate; and in a
preliminary stage of this case, the court has decided as
follows:
'The
will is valid as a testamentary conveyance of property, and
the legal title to all of the testator's property
became vested in the defendants Barnes and Stein as
trustees, with full power to sell all of it at their
discretion for the purpose of converting it into money for
the benefit of the estate. The bill contains no specific
charge of fraud, or breach of trust, sufficient to justify
a decree annulling any sale or contract of sale made by
said trustee defendants. Therefore the vendees have good
titles as against the complainant.
'The
bequest of the residue of money remaining after complete
administration of the estate to trustees of the
Theosophical Society is void for uncertainty in two
important particulars, viz.: The legatees cannot be
identified; and the intended use of the bequest cannot be
ascertained or defined so as to be declared a charitable
use, which can become effective through the exertion of the
power of a court of equity to assume control of trusts,
appoint trustees when required, and direct application of
funds according to declared intentions of donors, or by the
cy pres rule. Therefore, the defendants Barnes and Stein
must be held accountable for the money belonging to the
estate as trustees of the testator's heirs.'
That
decision was made upon consideration only of the will itself
and averments of the bill of complaint, and since it was
rendered the defendants have filed an answer, and the case
has been submitted for final determination upon the bill and
answer.
In
rendering a decision upon the bill and answer, the court must
accept as true all the averments of the answer as to the
disposition made of the estate, and as to the honesty and
good faith of the defendants, so that the rights of the
parties to be adjudicated relate only to the residue of the
estate, which the defendants now hold.
The
material facts admitted by the answer are as above recited
and the controverted points are as follows: In the tenth
paragraph of the amended bill of complaint, the complainant
avers, in effect, that there was not at the time of the
execution of the will, nor at the time of the death of the
testator, nor has there been at any time since the execution
of...
