Lockwood v. Killian

• Decision Date: 04 September 1979
• Citation: 425 A.2d 909,179 Conn. 62
• Court: Connecticut Supreme Court
• Parties: Theodore D. LOCKWOOD et al. v. Robert K. KILLIAN, Attorney General of the State of Connecticut.

Page 909

425 A.2d 909

179 Conn. 62

Theodore D. LOCKWOOD et al. v. Robert K. KILLIAN, Attorney General of the State of Connecticut.

Supreme Court of Connecticut.

Argued June 13, 1979.

Decision Released Sept. 4, 1979.

Allan B. Taylor, Hartford, for appellants (plaintiffs).

Richard J. Lynch, Asst. Atty. Gen., with whom were Bernard F. McGovern, Jr., Asst. Atty. Gen. and on brief, Carl R. Ajello, Atty. Gen., for appellee (defendant).

Phyllis Gelman, Susan R. Meredith, New Haven, and Patricia Smith, Danielson, filed a brief as amici curiae.

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

The plaintiffs are members of a special selection committee of the Fuller Scholarship Fund. In 1974, they instituted an action for instructions from the Superior Court, claiming to be unable to perform their duties in the administration of the trust fund without advice from the court. Acting upon a stipulation of facts, the court removed some, but not all, ¹ of the restrictions on the beneficiaries of the fund. In Lockwood v. Killian, 172 Conn. 496, 375 A.2d 998 (1977) (hereinafter Lockwood I ), this court remanded the case for a new trial because the judgment of the trial court was "predicated solely upon such a limited stipulation of facts, with no evidence whatsoever to establish to the satisfaction of the court the actual existence of those facts or what alternate scheme might be a sufficient deviation to carry out the proper purposes of the trust." Lockwood I, supra, 509, 375 A.2d at 1005.

On retrial, the Superior Court not only considered the stipulation of facts but also heard testimony from a number of witnesses who were subject to cross-examination by the defendant and to interrogation from the bench. The trial court modified the provision of the trust, through the doctrine of cy pres, in a totally different way it left the racial, gender and religious restrictions and removed the geographical ones. All parties attacked this second judgment.

As a threshold matter, the plaintiffs claim that the remand on the previous appeal was limited to the question of whether the gender restriction should be removed. This court found that the trial court in Lockwood I erred in "proceeding upon the restrictive stipulation of facts, without further evidence or investigation." Lockwood I, supra, 509, 375 A.2d 1005. The remand was as follows: "(T)he judgment is set aside and a new trial ordered." It is obvious from the body of the opinion and the wording of the remand that there was no limitation in the order of a new trial. See Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972).

Frank Roswell Fuller died a resident of West Hartford, Connecticut, on March 1, 1957, leaving a will which is the subject of this appeal. Article VI of the will provides $10,000 in trust to the town of East Hartford to establish a scholarship fund for students at the East Hartford high schools. At the end of twenty-five years, the remainder of that fund is to be paid to the Newington Home for Crippled Children. Article VIII of the will provides funds for the maintenance of Fuller family plots in cemeteries located in Hartford County. Article IX of the will provides bequests in the total amount of $50,000 to four charitable corporations which are located in Hartford County. The beneficiaries of those bequests are not limited by either race or sex.

This appeal arises out of an action for instructions concerning the trust established in article X of the will. ² The stated purpose of the trust is to use the income of the Fuller Scholarship Fund to award college scholarships to beneficiaries chosen by a special selection committee. Under the will, only needy and deserving caucasian boys graduating from high schools in Hartford County who profess themselves to be Protestant Congregationalists are eligible.

The trust created under article X first came before the Superior Court in 1966, when the restriction as to the number of new scholarships that could be issued annually was removed. ³ Subsequently, the plaintiffs administered the trust and in every year from 1971 to 1975 chose as beneficiaries all the applicants who met the qualifications set forth in article X. Nevertheless, the committee was not able to choose a sufficient number of beneficiaries to expend the annual income of the trust on scholarships. This precipitated the present action.

At the first trial, the court removed the racial and gender restrictions but allowed the religious restriction to remain. On appeal, this court remanded the case for a new trial. See Lockwood I, 172 Conn. 496, 375 A.2d 998 (1977). At the second trial, the court chose not to modify the restrictions as to race, sex or religion but rather extended the geographical limits from which beneficiaries could be chosen to the entire state of Connecticut. It also increased the amount that could be spent in the administration of the fund from $4000 to $10,000 annually. This increase was to enable the administrator to publicize the scholarships on a statewide basis. It is probable that this decision was influenced in part by this court's opinion in Lockwood I where we alluded to the possibility of broadening the geographical base and suggested that more widespread publicity also might produce a sufficient number of eligible candidates. We did not pass on either possibility at that time because of the limited factual foundation in the stipulation of facts.

The finding of facts by the court in the present action, which is not attacked by anyone, is based upon, but does not follow verbatim, the stipulation of facts and the additional testimony that was taken. It is unquestioned that the restrictions make it impossible to choose a sufficient number of recipients. It is also unquestioned that the provisions of article X of the Fuller will created a charitable trust, the dominant intent of which was to provide higher education for deserving recipients. The size of the trust established by the will, the fact that the scholarship fund received all of the residuary estate with no gift over in case the trust fund failed, the testator's affirmation that individual bequests fully satisfied his obligations to his family, and the magnitude of the other charitable bequests support the court's finding of a general charitable intent. See Ministers Benefit Board v. Meriden Trust Co., 139 Conn. 435, 94 A.2d 917 (1953). The restrictions established as to number, race, sex, religion, geographic area and cost of administration were all subordinate to the general intent of providing further education to high school graduates. As all of these restrictions cannot be practically exercised and still carry out the dominant intent of the testator, the doctrine of approximation is applicable. Second Ecclesiastical Society v. Attorney General, 133 Conn. 89, 94, 48 A.2d 266 (1946); Shannon v. Eno, 120 Conn. 77, 88, 179 A. 479 (1935); Newton v. Healy, 100 Conn. 5, 10, 122 A. 654 (1923). In exercising its powers under the doctrine of approximation (cy pres), a court must seek a method or result which as nearly as possible effectuates the intent of the testator. Shannon v. Eno, supra, 120 Conn. 89, 179 A. 479; 15 Am.Jur.2d, Charities, § 171. In doing so, the court must observe the mandate of General Statutes § 45-79, which regulates charitable trusts, that the trust "shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use."

The trial court on remand concluded that the geographical restriction was of lesser importance than the race, sex or religion restrictions. This conclusion is not supported by the subordinate facts found. Nearly all the objects of the testator's bounty are in Hartford County. The will specifically restricts the recipients to high school graduates from Hartford County. Any college a recipient wants to attend has to be within a certain radius of West Hartford. A provision in the will makes it clear that the fund is not expressly for students from Trinity College but for applicants "from the whole area in this section of Connecticut, as indicated hereinabove." (Emphasis added.) A specific finding of fact recites that the will "does not contain any bequest to a charitable or noncharitable corporation or organization that is not located in the County of Hartford, nor does it contain any bequest to a municipal corporation that is not located in the County of Hartford." There is no finding of fact, nor does the will itself indicate, that the testator's generosity was to be applied in any form to any other geographical area than Hartford County, for which, as indicated by his will, he had an exceedingly strong attachment. Further, if the other restrictions are to remain, as in the plan outlined by the trial court, expanding the geographical area will not appreciably increase applications, since one of the main stumbling blocks was that the religious and educational leaders involved refused to publicize the scholarships because of their racial and sexual taint. The court's conclusion that the geographical restriction was not a vital element to the testator's intent is not supported by the finding and is in error. White Oak Excavators, Inc. v. Board of Tax Review, 169 Conn. 253, 256, 363 A.2d 134 (1975).

The court's conclusion that the $4000 provided for administration of the fund is inadequate appears to be inextricably tied to its conclusion that the expansion of the geographical area will best effectuate the testator's intent. The only findings applicable to this conclusion are: "The restrictions (sic) contained in Article X, paragraph d.4 of the Will that the Special Selection Committee not expend more than four thousand dollars ($4,000) for administration is insufficient to allow the retention of a person to promote the availability of the Fuller Scholarship Fund and solicit...