Simpson v. Welcome

• Decision Date: 30 July 1881
• Citation: 72 Me. 496
• Parties: MARIA SIMPSON, and others, appellants from a decree of JUDGE OF PROBATE, v. I. C. WELCOME, and another, executors.
• Court: Maine Supreme Court

72 Me. 496

MARIA SIMPSON, and others, appellants from a decree of JUDGE OF PROBATE, v. I. C. WELCOME, and another, executors.

Supreme Judicial Court of Maine.

July 30, 1881

ON REPORT.

Appeal from a decree of judge of probate made to obtain a construction of the fourth item of the will of Ralph Harley deceased, which is stated sufficiently in the opinion.

It was " agreed that the court shall have the power of determining the construction of the will, and whether the funds in the hands of the respondents shall be disposed of as is provided in article four of the will, or whether the heirs at law are entitled to it."

The following was the decree of the probate court:

(Decree.)

" Lincoln, ss. Probate court, February term, A. D. 1880. Ordered and decreed: That the sum of eleven hundred and twenty-five and 47/100 dollars, balance due from the said I C. Welcome and F. L. Carney, as executors of the last will of Ralph Harley, the said deceased, as appears by above statement of account by them made and allowed, be distributed to them as trustees under the provisions of said will. They giving bond in the sum of twenty-three hundred dollars, for the faithful discharge of the trusts named therein, and that they close their account as executors of the estate of said deceased, and charge themselves with said amount in a new account as said trustees.

ALMORE KENNEDY, Judge."

A P. Gould, for the appellants.

The gift of the remainder in this will is too vague, indefinite and uncertain to be sustained.

It is not declared to whom nor where the distribution of the books is to be made, in what country or part of the world, to what race, nation or people. They are to be " religious books." But it is not declared to what religion they shall relate. In the discretion or will of the trustees may mean pagan, mahomedan buddhistic or christian; and if christian, roman or protestant.

The gift is not for charitable uses. It is not declared to be a charity. The will does not indicate that the books are to be distributed among the poor.

The stat. of charitable uses (43 Eliz. c. 4), does not embrace the objects of this gift. The devise is therefore not aided by it, and it must stand or fall as at common law, without the aid of that statute.

Either there must be some words in a gift declaring it to be for a charitable purpose, or the purpose declared must in its very nature be a charity.

The reported cases on this subject are innumerable, and many of them hard to reconcile, but I am able to find none which declare a gift in such words as those in this will to be for a charitable use. See Dole v. Lincoln, 31 Me. 422; Brown v. Yeall, 7 Ves. Jr. 51; James v. Allen, 3 Merivale 17; Ellis v. Selby, 7 Simons 352; Williams v. Kershaw, 1 Keene 232; Morice v. Bishop of Durham, 9 Ves. Jr. 399; 10 Ves. Jr. 521; Redfield on Wills, Part II, 778, 779, 780, 782; Attorney General v. Haberdasher's Co. 1 Mylne and Keene, 428; Ommauney v. Butcher, Turner and Russell, 260; Heiss v. Murphy, 40 Wis. 276; Nash v. Morley, 5 Beav. 182; Redfield Wills, Part I, 697, et seq.

" Religion" is defined by Worcester " as any system of faith and worship." It would be impossible for a court to decide to what religion or religious books this fund should be devoted without further indication in the will itself.

Byron D. Verrill, for the executors, cited: Going v. Emery, 16 Pick. 107; Drew v. Wakefield, 54 Me. 291; Jackson v. Phillips, 14 Allen 539; Everett v. Carr, 59 Me. 325; Saltonstall v. Sanders, 11 Allen 446; Attorney General v. Stepney, 10 Ves. 22.

DANFORTH, J.

The question involved in this case is the construction of the fourth item in the will of the late Ralph Harley, or the validity of the gift contained therein. The item so far as material is as follows: " I hereby give, devise and bequeath in trust to I. C. Welcome, of Yarmouth, and Franklin L. Carney, of Newcastle, all that may remain both of my real and personal estate, … and further direct the said Welcome and Carney to expend all that may remain. . in the purchase and distribution of such religious books or reading as they shall deem best, and as fast as the funds shall come into their hands."

The objection made is that the direction as to the appropriation of the fund is too vague and indefinite to be sustained.

The meaning of the testator is not obscure or open to doubt. That the fund is given in trust, that the whole of it is to be expended in religious books or reading, that all the books or reading so purchased are to be distributed, and that the class of persons to whom distribution is to be made is limited only by the discretion of the trustees, are all so clearly within the meaning of the testator as expressed in his will, as not to admit of doubt. But it is claimed that vagueness and uncertainty attaches both to the character of the books to be distributed and the persons or class who are the beneficiaries under the gift.

The word " religious" is the only expression descriptive of the character of the books to be bought and distributed, and describes such as teach or inculcate religion. It is true that religion in its broadest sense may include all the different systems of faith and worship, which can be found in the world. In this sense it may be conceded that the trust is one which neither law nor equity would sustain. In the great variety of religions prevailing, and so great the conflict between them, if all were to be included, the intention of the testator could not be executed, if one, or more, his intention could not be ascertained. But happily we are not reduced to this dilemma. Words used in a will, as in other instruments, are construed in connection with the words in whose company they are found, as well as in the light of the circumstances in, and under which, they are used.

In this case the testator had his domicile, and made his will in a country where,...