Webber Hosp. Ass'n v. McKenzie

• Decision Date: 05 September 1908
• Citation: 71 A. 1032,104 Me. 320
• Parties: WEBBER HOSPITAL ASS'N et al. v. McKENZIE. McKENZIE v. MUCHMORE et al.
• Court: Maine Supreme Court

71 A. 1032

104 Me. 320

WEBBER HOSPITAL ASS'N et al.

v. McKENZIE.

McKENZIE

v. MUCHMORE et al.

Supreme Judicial Court of Maine.

Sept. 5, 1908.

(Official.)

Report from Supreme Judicial Court, York County, at Law.

Separate bills by the Webber Hospital Association and others against Stella R. McKenzie, executrix and trustee under the will of Moses W. Webber, deceased, and by Stella R. McKenzie, as trustee, against Charlotte Muchmore and others for the construction of the will of Moses W. Webber, deceased, and the mode of executing the trust, if any, created by the will. Cases reported to the law court for determination. Will construed, and mode of executing the trust declared.

Two bills in equity asking for the construction of the will of Moses W. Webber, late of Biddeford, deceased, and the mode of executing the trust if one was created by the will.

The bill in the first-named case was filed September 5, 1905, and was brought by the Webber Hospital Association, a corporation located at Biddeford, and Charlotte Much-more, Phoebe Goodwin, and Johanna Murray, heirs at law of the said Moses W. Webber, against the defendant, Stella R. McKenzie, in her capacity as executrix of the aforesaid will "and also in her capacity as trustee of a fund created by and under the provisions, of said last will and testament of said Webber, for a hospital in said Biddeford. 'where the unfortunate may receive good care and skillful treatment.'" March 15, 1906, the Trull Hospital, a corporation located at Biddeford, was made a party plaintiff by agreement of all the parties. At the following September term of the Supreme Judicial Court all the plaintiffs, except the Webber Hospital Association and the Trull Hospital, withdrew by consent of the defendant. To this bill the defendant filed a demurrer and answer.

The bill in the last-named case was filed January 2, 1900, and was brought by the said Stella R. McKenzie "in her official capacity as trustee by and under the last will" of the aforesaid Moses W. Webber against the aforesaid Charlotte Muchmore, Phœbe Goodwin and Johanna Murray, "and against any and all unknown pretended supplicants or pretended claimants in any way relating to the last will and estate of said Webber, being all the parties interested, or claiming to be interested, in the subject-matter of this bill." The aforesaid Charlotte Muchmore, Phœbe Goodwin, Johanna Murray, the Webber Hospital Association, and the Trull Hospital appeared in defense and filed answers to the bill.

Both cases were heard together on bills, demurrer, answers, and evidence before the justice of the first instance. At the conclusion of the hearing and by agreement of the parties, the cases were reported to the law court for determination.

All the material facts appear in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Foster & Foster, Edwin Stone, George F. & Leroy Haley, and Cleaves, Waterhouse & Emery, for plaintiffs Webber Hospital Ass'n and others.

James O. Bradbury, for defendant McKenzie.

James O. Bradbury, for plaintiff McKenzie.

Foster & Foster, Edwin Stone, George F. & Leroy Haley, and Cleaves, Waterhouse & Emery, for defendants Much-more and others.

CORNISH, J. Construction of the will of Moses W. Webber formerly of Biddeford who died June 9, 1899, is asked in two bills in equity brought under Rev. St. c. 79, § 6, par. 8. The first bill was filed September 5, 1905, in the name of the Webber Hospital Association and of the heirs at law against the executrix and trustee. On March 15, 1900, the Trull Hospital was admitted as party plaintiff, and at the September term, 1900, the heirs withdrew by consent of the defendant. To this bill the defendant filed a demurrer and answer, interposing the objection that neither the Webber Hospital Association nor the Trull Hospital has sufficient interest to enable it to maintain the bill. On January 2, 1906, a bill was filed in the name of Stella R. McKenzie, trustee, against the heirs at law and all parties claiming an interest under the will, asking for a construction thereof and instructions upon the execution of the trust. The heirs at law, the Webber Hospital Association, and the Trull Hospital appeared in defense and filed answers. Both cases are now before this court on report; the evidence taken being applicable to both. Under these circumstances it is unnecessary to determine the technical question raised by the demurrer as to whether the first bill should be entertained. All parties in interest are before the court, and are asking for the construction of the same will and the mode of executing the trust if one was created. The result in no way depends upon whether the first or the second bill is entertained or both. This is a privileged suit "to which the ear of the court should be open" to relieve parties from tedious and expensive litigation. Richardson v. Richardson, 80 Me. 585, 16 Atl. 250. Therefore, without discussing this technicality, we pass to the merits of the case.

The portion of the will which is said to be of doubtful construction is as follows:

"The balance of my estate and property real and personal and all that shall accrue to said estate, not otherwise mentioned, to constitute a fund which, when it shall have amounted to seventy-five thousand dollars, the income from which to be used for the maintenance of a free hospital in Biddeford Maine, where the unfortunate may receive good care and skillful treatment.

"If a hospital shall not have been built when the above hospital fund shall have amounted to seventy-five thousand dollars, twenty-five thousand dollars of the principal may be used for building one provided a sufficient sum is guaranteed for its maintenance.

"The above to be a memorial to my beloved wife, Eliza P. Webber."

The questions involved are:

First. Whether a valid trust was created by this residuary clause, or whether, the residuary clause being void, the heirs at law of the testator are entitled to the residuum as intestate estate.

Second. If a valid trust was created, how shall it be administered?

1. The intention of the testator is clear. The will was made July 9, 1898, about one year before his death, and, as he was childless, he desired to dispose of the bulk of his estate for charitable purposes and at the same time as a memorial to his deceased wife. He makes a bequest of $5,000 to his niece Stella F. Ripley, who is also named as executrix, together with all his household goods, books, pictures, etc., and the use of his house in Old Orchard for life, with $100 a year from the income of his property for the maintenance of the same. Seven hundred and fifty dollars are given for a monument to be erected on the burial lot of his father. All other bequests create trust funds the income only to be used. Three of these are in small amounts for the care of family burial lots, a fourth is of $15,000 "as a fund, the income from which to be given said Stella F. Ripley during her lifetime," and the fifth is of "one thousand dollars as a fund, the income from which to be donated to the aid of unfortunate women, to enable them to enter the Wardwell Home, so called, at Saco, Maine, the fund to be known as the Eliza P. Webber fund." Then follows the clause already quoted, bequeathing the balance of his estate "to constitute a fund which when it shall have amounted to seventy-five thousand dollars, the income from which to be used for the maintenance of a free hospital," etc., also as a memorial to his beloved wife.

A purpose so benevolent and an intention so clear ought to be upheld by this court unless prevented by positive and firmly established rules of law.

2. Counsel for the heirs contend that this residuary clause is void; that the legacy lapsed because the intention is incapable of being carried into effect, and the court in equity is not authorized to frame a new intention for the testator; that his purpose was to establish a hospital absolutely and entirely free, not a hospital some branch of which might be free, or which might provide a certain number of free beds to charity patients; that neither the Webber Hospital Association nor the Trull Hospital is or claims to be a free hospital in this sense; that, if $25,000 of the principal is taken to build such a free hospital, the income of the remaining $50,000 will be entirely inadequate to maintain it; that a guaranty of at least $200,000 from outside parties would be needed, and, as it is impossible for the court to say that such a sum will be guaranteed, the entire provision is impossible of fulfillment, and therefore void. This contention invokes the commonly accepted rule that if it appears that the gift was for a particular purpose only, and that there was no general charitable intention, the court cannot by construction apply it cy pres the original purpose (Doyle v. Whalen, 87 Me. 414, 32 Atl. 1022, 31 L. R. A. 118); and, if the gift cannot vest in the first instance in the donees for the reason that donees cannot be found as in Brooks v. Belfast, 90 Me. 318, 38 Atl. 222, or if the gift is conditional upon a future and uncertain event, and the condition is never fulfilled so that the estate never arises, as in Re White's Trusts, 33 Ch. Div. 449, cited by the learned counsel for the heirs, the court cannot appoint other donees cy pres and the legacy lapses.

But in the case at bar the facts do not warrant the application of these rules. No condition whatever is attached to the bequest. The expenditure of $25,000 in erecting such a hospital is not mandatory, but discretionary. "Twenty-five thousand dollars of the principal may be used for building one, provided a sufficient sum is guaranteed for its maintenance" are the words of the will. The trustee is to decide whether a sufficient sum has at any time been guaranteed, and even then he may expend $25,000 of the principal or not, as his good judgment may determine.

Nor is the...