National Jewish Hospital for Consumptives v. Coleman

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: National Jewish Hospital for Consumptives v. Coleman, 191 Ala. 150, 67 So. 699 (Ala. 1914)
• Decision Date: 07 November 1914
• Docket Number: 633
• Parties: NATIONAL JEWISH HOSPITAL FOR CONSUMPTIVES et al. v. COLEMAN.

67 So. 699

191 Ala. 150

NATIONAL JEWISH HOSPITAL FOR CONSUMPTIVES et al. v. COLEMAN.

No. 633

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Chancery Court, Calhoun County; W.W. Whiteside Chancellor.

Suit by Thomas W. Coleman, Jr., against the National Jewish Hospital for Consumptives and others for the construction of the will of L.H. Kaplan, deceased. From a decree declaring devises and legacies void for uncertainty, certain of the defendants appeal. Reversed and rendered.

Blackwell & Agee and Willett & Willett, all of Anniston, and Hanaw &amp Pillans, of Mobile, for appellants.

R.C Brickell, Atty. Gen., and W.P. Acker and Niel P. Sterne, both of Anniston, for appellee.

SOMERVILLE J.

The bill is filed by the executors of the will of L.H. Kaplan deceased, to secure a construction of certain provisions therein. The testator, a resident of Anniston for many years, executed his will on March 5, 1910, while in an infirmary in Atlanta, where he died three days later. The will gives a part of his estate "to the Jewish Hospital for Consumptives at Denver, Colorado"; and a part "to the Jewish Hospital at Jerusalem." There is nothing else in the will which serves to further identify the beneficiaries thus described by the testator. The difficulty of identification arises from the fact that there is neither at Denver nor at Jerusalem any institution which formally bears a name identical with the designations used in the will; and from the further fact that at or near Denver there are and then were two Jewish hospitals for consumptives, one incorporated as the "National Jewish Hospital for Consumptives," located in Denver, and the other incorporated as the "Jewish Consumptives Relief Society," located in Edgewater, a suburb immediately adjacent to Denver, and with its business office in Denver, and in Jerusalem there are and then were four Jewish hospitals called, respectively, the Bicur (or Bikkur) Cholim Hospital, the Rothschild Hospital, the Misgob Ladoch Hospital, and the Sharre Zadek Hospital. All these institutions were made parties respondent to the bill, but the only ones claiming as beneficiaries under the will are the "National" Hospital of Denver, and the "Bicur Cholim," of Jerusalem.

A great mass of testimony has been taken and introduced with a view to proving or disproving that these claimants are the beneficiaries intended and described by the testator in the will. The chancellor held, upon a consideration of this evidence, that the beneficiaries intended in the several provisions quoted could not be determined with reasonable certainty; that the devises and legacies were therefore void; and that they would pass to the Kaplan Hospital, to be established at Anniston, as the residuary legatee under the will.

The rule is well settled that:

"Charitable gifts are not invalid because the trustee or donee is erroneously or uncertainly designated, when it can be made clear who is intended from the context of the instrument of gift, or by parol evidence as to the surrounding circumstances." 6 Cyc. 936, and cases cited.

"It is an elementary principle that where a corporation is indicated in a will by an erroneous name, such a mistake will not avoid the gift if it be possible by means of the name used, or by extrinsic evidence, to identify the corporation intended as beneficiary with sufficient certainty." Page on Wills,§ 539.

See, also, Judge Freeman's note, 50 Am.St.Rep. 287.

Where the name of the beneficiary, as expressed in the will, is applicable in a general way to several different charities, but precisely to none of them, the latent ambiguity may be explained, and parol evidence is admissible to determine which of the charities is intended. Hinckley v. Thatcher, 139 Mass. 477, 1 N.E. 840, 52 Am.Rep. 719; Bristol v. Ontario Orphan Asylum, 60 Conn. 472, 22 A. 848; Appeal of Washington, etc., University, 111 Pa. 572, 3 A. 664; Webster v. Morris, 66 Wis. 366, 28 N.W. 353, 57 Am.Rep. 278; Chappell v. Miss'y Society, 3 Ind.App. 356, 29 N.E. 924, 50 Am.St.Rep. 276.

In the note by Mr. Browne to Chambers v. Watson, 60 Iowa, 339, 14 N.W. 336, 46 Am.Rep. 77, it is said:

"A corporation may be designated by its corporate name, by the name by which it is usually or popularly called and known, by a name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may in all cases be proved by parol. St. Luke's Home v. Association, 52 N.Y. 191, 11 Am.Rep. 697; Holmes v. Mead, 52 N.Y. 332; Gardner v. Heyer, 2 Paige [N.Y.] 11."

For this purpose it is clear that the religous and social affiliations of the testator and also his acquaintance with, relations to, interest in, and transactions with, a particular body, or the lack thereof, may be inquired into. Hinckley v. Thatcher, 139 Mass. 477, 1 N.E. 840, 52 Am.Rep. 719; Gilmer v. Stone, 120 U.S. 586, 7 Sup.Ct. 689, 30 L.Ed. 734; Matter of Kilvert's Trust, L.R., 7 Ch.App. 170, 1 Eng.Rep. 499; Chappell v. Missionary Society, 3 Ind.App. 356, 29 N.E. 924, 50 Am.St.Rep. 276.

And, although there is some lack of harmony in the decisions, the rule is well settled that:

"In cases of equivocation, as where the will or a provision thereof applies equally as well to two or more objects or persons, evidence of statements or declarations made by the testator at the time of the execution or about the time of the execution of the will is admissible for the purpose of identifying the person, or property, he intended." 40 Cyc. 1435, and cases cited; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154. 2 Prob.Rep.Ann. 355; Bradley

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