Westport Bank & Trust Co. v. Fable

• Decision Date: 13 June 1940
• Citation: 13 A.2d 862,126 Conn. 665
• Parties: WESTPORT BANK & TRUST CO. v. FABLE et al.
• Court: Connecticut Supreme Court

13 A.2d 862

126 Conn. 665

WESTPORT BANK & TRUST CO. v. FABLE et al.

Supreme Court of Errors of Connecticut.

June 13, 1940

Case reserved from Superior Court, Fairfield County; Alfred C Baldwin, Judge.

Action by the Westport Bank & Trust Company, executor and trustee of the will of Charles Fable, deceased, against Frederick Fable and others to determine the validity of a charitable trust under a will and other questions, brought to the superior court and reserved by the court for the advice of the Supreme Court of Errors.

Questions answered in accordance with opinion.

The trustee holding funds, under provision in will authorizing trustee to distribute funds to such charitable and educational purposes as it may deem wise and prudent, would not be entitled to ask the court to advise it in the selection of the particular purposes to which the fund should be devoted, but, having selected such a purpose, it would be entitled to seek advice as to whether such purpose was a proper one to benefit by the distribution of the fund. Gen.St.1930, §§ 4825, 5000.

Warren F. Cressy, of Stamford, and Harry R. Sherwood, of Westport for plaintiff.

Frank J. DiSesa, Asst. Atty. Gen., and Francis A. Pallotti, Atty Gen., for defendant Pallotti, Atty. Gen.

Charles R. Covert and Edward J. Quinlan, Jr., both of Stamford, for defendants Frederick F. Fable and others.

Leo Nevas, of Westport, and Bernard A. Nevas, of South Norwalk, for defendant Oscar Peterson, executor.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

MALTBIE, Chief Justice.

Charles Fable died in 1934, leaving a will in which, after giving certain legacies, he gave, devised and bequeathed the residue of his property to the plaintiff bank to be held in trust for his wife and a nephew and he directed that at their the balance remaining in the fund ‘ be distributed by said trustee to such charitable and educational purposes as it may deem wise and prudent.’ The principal question presented upon this reservation is whether this gift constituted a valid charitable trust.

In Shannon v. Eno, 120 Conn. 77, 179 A. 479, 480, we had before us a devise of real estate ‘ to be used as and for an Old Ladies Home for worthy poor protestant women over sixty years of age’ residing in three towns named; the claim was made that the gift was void for uncertainty in that no power of selecting the particular beneficiaries of the charity was provided. We sustained the trust and, reviewing our previous decisions, said (120 Conn. at page 84, 179 A. at page 482): ‘ Our law may be summed up to this effect: If property is given for a charitable use in trust for the benefit of a certain class of persons defined with reasonable certainty, and in order to execute that trust a power of selection in the trustees or some one else is necessary, that power will be implied.’ In that case no appeal was made to § 4825 of the General Statutes, quoted in the foot note; ^[1] nor was it necessary to the decision to consider its meaning and effect.

This statute was enacted in 1925. Public Acts, 1925, Chap. 160. In determining the legislative intent expressed in it, we must have recourse to our previous decisions in order to ascertain what change, if any, it was intended to make in our law. In White v. Fisk, 22 Conn. 31, 50, we held invalid a gift to trustees to be expended ‘ for the support of indigent pious young men, preparing for the ministry in New Haven [Connecticut]’ ; but in Shannon v. Eno, supra, 120 Conn. at page 83, 179 A. 479, we said of that case that we have followed it in so far as it held that a gift, though in the nature of a charity, made directly to a class of beneficiaries generally defined is too uncertain for enforcement and that it is necessary either than the will establish a mode of selecting the individual persons to be benefited or that a power to make such selection be conferred upon the trustee or someone else, but that beyond this general principle it has ceased to be authoritative. In Adye v. Smith, 44 Conn. 60, 26 Am.Rep. 424, we held void a gift to a trustee to dispose of the residue of the estate ‘ for any and all benevolent purposes that he may see fit’ and we said (44 Conn. at page 70, 26 Am.Rep. 424): ‘ Our law is more strict than the English law in this, that it requires certainty in the persons to be benefited, or at least a certain and definite class of persons with an ascertained mode of selecting them. * * * In the case under consideration the words used to express the trust lack every element of certainty heretofore required in this state. There is no certain beneficiary, no definite class, no ascertained mode of selection, and no certainty and no limitation in the purpose of the trust except as found in the world-wide field of benevolence; * * *.’ In Hughes v. Daly, 49 Conn. 34, we held invalid a gift to a Catholic bishop ‘ for a Catholic reformatory for boys in this state,’ largely because the word ‘ reformatory’ was of too wide and uncertain significance, but we added (49 Conn. at page 35): ‘ Moreover, the testator has failed to confer upon any one power either to declare what shall be the precise purpose, organization, or plan of management of an institution which shall entitle to the bequest, or to select the boys who are to become its inmates; omissions which it is not within the province of the court to supply.’ In Bristol v. Bristol, 53 Conn. 242, 5 A. 687, we held void a provision in a will authorizing the executrix ‘ to disburse from my estate to such worthy persons and objects as she may deem proper, such sums as it is her pleasure thus to appropriate, not to exceed in all $5,000,’ and we said (53 Conn. at page 255, 5 A. at page 691): ‘ We think the law never intended to accept as a valid will so vague and indefinite a direction,-such a mere authority. It is no proper sense a will. It indicates no intent whatever on the part of the testator as to the disposition of his property. It is really a public declaration that he has no such intent. It is a travesty of terms to call such an instrument a will’ ; and, again (53 Conn. at page 256, 5 A. at page 692): ‘ It is well established * * * that a gift to a charitable use must designate the particular charitable use by making the gift to some charitable corporation, whose charter provides for a charitable use of its funds, or to some perticular object or purpose that the law recognizes as charitable. It is enough if the object be mentioned, and the law can see that it is a charitable one; but it is not enough that the gift be merely ‘ to charitable uses,’ or ‘ to be used in charity,’ so long as no selection is made from the long list of * * * charitable objects. And it is not enough that some person is named to whom is given the power of naming the charity. That is the testator's own matter.' Of this case we said in Cheshire Bank & Trust Co. v. Doolittle, 113 Conn. 231, 234, 155 A. 82, 84: ‘ The bequest was held invalid since the power given the widow was, not to select the particular beneficiaries of a class named, but to select the charity itself.’

Under our law as it existed previous to the enactment of § 4825 of the General Statutes, while a testator might expressly or impliedly authorize a trustee to select the beneficiaries who came within a particular charitable purpose or purposes designated by him, he was required, in order to create a valid charitable trust, to designate, with some degree of certainty at least, the charitable purpose or purposes intended. It was evidently to remove this requirement that the statute was enacted. As passed by the Legislature, Chapter 160 of the Public Acts of 1925 included not only the provisions found in § 4825 of the General Statutes, but also those now in §§ 4826 and 4827. Section 4826 authorizes the incorporation into a will by reference of any resolution, declaration or deed of trust establishing a charitable community trust, validates a gift made to such a trust and authorizes the use of the property given in accordance with the instrument establishing it. Section 4827 requires an annual accounting to the Probate Court as regards any such community trust. The broad provisions of § 4825 were clearly intended to pave the way for the later authorization of gifts to charitable community trusts. As to the purpose of these, the statute contains no restrictions; they are left to be determined by the resolution, declaration or deed by which they are established; and they may, therefore, so long as restricted to charitable uses, be in the broadest terms. See 2 Bogert, Trusts and Trustees, § 330. The legislative intent was evidently to make it possible to create a charitable use which did not meet the requirements of our previous decisions that the testator must designate the particular charity or class of charities to which he desired his property to be devoted.

This interpretation of the statute is supported by the clause ‘ provided the donor or testator shall give to the trustee or trustees thereof or to any other person or persons, the power to select, from time to time and in such manner as such donor or testator may direct, the charitable purpose or purposes to which such property or the income thereof shall be applied.’ Nor does the phrase in this clause ‘ and in such manner as such donor or testator may direct’ have the effect of limiting the statute to cases where the testator or donor has directed the manner in which the selection shall be made. The whole purpose of the statute was to broaden the rules as to certainty necessary to make charitable trusts valid and such a requirement would be more restrictive than that established by our decisions provious to the enactment of the statute. Shannon v. Eno, supra, and cases therein...