Livesey v. Jones

• Decision Date: 25 November 1896
• Citation: 55 N.J.E. 204,35 A. 1064
• Parties: LIVESEY v. JONES et al.
• Court: New Jersey Court of Chancery

35 A. 1064

55 N.J.E. 204

LIVESEY

v. JONES et al.

Court of Chancery of New Jersey.

Nov. 25, 1896.

Bill to enforce a trust, brought by John Livesey against Samuel B. Jones, surviving executor of Henry Livesey, deceased, and others.

Samuel A. Besson, for complainant.

Abel I. Smith, for the heirs. Isaac S. Taylor and Mr. Cowen, for Dr. Chadwick.

STEVENS, V. C. I think the trust under consideration in this case must fail, because it includes objects not charitable, and is, therefore, so general and indefinite that the court cannot see to its execution. The testator gives the residue of his estate to his friend and humanity's friend, the Rev. H. W. B., "to use and expend the same for the promotion of the religious, moral, and social welfare of the people in any locality, whenever and wherever he may think most needful and necessary." Now, in the first place, it seems to be plain that the words "religious, moral, and social" are not used conjunctively in such manner that every object to which the bequest may be applied must conduce at one and the same time to the advancement of religion and morality and to the social welfare of the people. To so hold would be to make the charity a religious one, contrary to the plain intention of the testator. It would be, moreover, in direct conflict with the decision in Williams v. Kershaw, 5 Clark & P. 111, where the devise was to "such benevolent, charitable, and religious purposes as the executors should, in their discretion, think most advantageous and beneficial," and where it was held that this language authorized the application of the bequest to other than strictly charitable purposes. This case I regard as authoritative, because Beasley, C. J., in Thomson's Ex'rs v. Norris, 20 N. J. Eq. 523, said that it rested on a proper foundation, and reiterated this opinion in De Camp v. Dobbins, 31 N. J. Eq. 695, in the following vigorous language: "Nor can I go with that process of reasoning that concludes that when the word 'benevolent' is conjoined in the word 'charitable,' the two words become identical in meaning; as that implies that one of the terms is to be dispensed with, or that the lesser term swallows up the larger. * * * In such a naked case as I have supposed, for the court to strike out the broader of the descriptive terms may, indeed, uphold now and then a testamentary limitation, but at the same time one of the most important canons that the law has established for the construction of written instruments is impaired." I must therefore assume that any use of the property which, in the estimation of Dr. Bellows, would promote either the religious welfare of the people or the moral welfare of the people or the social welfare of the people would be fully justified by the language of the will. That a trust to promote the religious welfare of the people is charitable is admitted. Whether a trust to promote its moral welfare is so, I need not consider. I am clear that the trust to promote the social welfare of the people in the manner declared in this will is not. I think it may be said without much fear of...