Sherman v. American Congregational Ass'n

• Decision Date: 20 December 1899
• Docket Number: 1,165.
• Citation: 98 F. 495
• Parties: SHERMAN v. AMERICAN CONGREGATIONAL ASS'N et al.
• Court: U.S. District Court — District of Massachusetts

98 F. 495

SHERMAN v. AMERICAN CONGREGATIONAL ASS'N et al.

No. 1,165.

United States Circuit Court, D. Massachusetts.

December 20, 1899

Charles E. Sherman and Roger M. Sherman, for complainant.

M. F Dickinson, Jr., for defendants.

BROWN District Judge.

The demurrer to the bill calls for a construction of the will of Isaac P. Langworthy. The third clause is as follows:

'Third I direct my executors to pay over to the American Congregational Association, as soon as may be convenience after my decease, the sum of ten thousand dollars (unless previous to my death I shall have deposited said sum with said association), upon condition that said association agrees to pay to my wife, in quarterly payments, during her life, the sum of $400, and upon the death of my said wife to pay over semiannually net income of said $10,000, and any increase thereof, to the library committee of said association; the same to be expended by said committee in the purchase of local histories, genealogies, commentaries of the Bible, and ecclesiastical histories, for said library.'

The complainant contends that this clause imposed upon the American Congregational Association an absolute condition precedent namely, that it should agree to pay Sarah W. Langworthy, 'in quarterly payments, during her life, the sum of $400'; that, without so agreeing, the association could not take; and that, as Mrs. Langworthy died before the making of such an agreement, the condition became incapable of performance, and the gift was thereby defeated. The requirement of the payments to Mrs. Langworthy, however, is in its nature temporary, and such that it may be satisfied and terminated by the death of the annuitant. Were the condition to become impossible of performance, by the death of the annuitant before the testator, or before the time at which the executor was to pay over the fund, the condition, being no longer supported by the testator's sole reason for imposing it, would end. As the annuity was not the sole motive of the bequest, the testator's intention as to the disposition after his wife's death, being clear, should be upheld. Colton v. Colton, 127 U.S. 300, 309, 8 Sup.Ct. 1164, 32 L.Ed. 138; Hollinrake v. Lister, 1 Russ. 500; Kirk v. Kirk, 21 Ch.Div. 431, 437. Therefore a mere allegation that the association did not make such an agreement does not negative its right to the fund. The bill alleges no refusal by the association to assume the payment of the annuity, nor can its mere failure to do so constitute a refusal, as the complainant contends, unless it had an opportunity to accept the fund from the executor prior to the death of the annuitant.

The bill alleges that on or about April 1, 1898, the executor sold property at divers times, and paid over to the American Congregational Association the sum of $10,000, and that the executors of Mrs. Langworthy 'acquiesced, and promoted the said proceedings, and permitted the same to be approved by said probate court. ' This being after the death of the annuitant, it appears that there was at the time of payment no existing condition for an agreement to pay an...