William Fontain, Administrator of Frederick Kohne, Deceased Appellant v. William Ravenel

• Decision Date: 01 December 1854
• Citation: 17 How. 369,15 L.Ed. 80,58 U.S. 369
• Parties: WILLIAM FONTAIN, ADMINISTRATOR de bonis non cum testa mento annexo OF FREDERICK KOHNE, DECEASED, APPELLANT v. WILLIAM RAVENEL
• Court: U.S. Supreme Court

58 U.S. 369 17 How. 369 15 L.Ed. 80 WILLIAM FONTAIN, ADMINISTRATOR de bonis non cum testa mento annexo OF FREDERICK KOHNE, DECEASED, APPELLANT v. WILLIAM RAVENEL. December Term, 1854

THIS was an appeal from the circuit court of the United States for the eastern district of Pennsylvania.

It was a bill filed by Fontain, as administrator de bonis non cum testamento annexo of Frederick Kohne, deceased, against Ravenel, one of the executors of Mrs. Kohne, the widow of the deceased Frederick. The object of the bill was to recover from the defendant certain sums of money which came into the hands of the widow, as executrix of her husband, for the purpose of applying them to some charitable bequests made in the will of Frederick Kohne. These are stated, as well as the other circumstances of the case, in the opinion of the court, and need not be repeated.

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The circuit court dismissed the bill, and the complainant appealed to this court.

The case was argued, in print, by Mr. Hopper and Mr. Meredith, for the appellant, and by Mr. Gerhard and Mr. Pettigru, (with whom was Mr. Whaley, for the residuary legatee of Mrs. Kohne,) for the appellee.

The following were the points and authorities relied upon by the counsel for the appellant, in their original brief. An elaborate reply was filed by the counsel for the appellee, and then a rejoinder by the appellant's counsel. The reporter feels it difficult, with this quantity of matter, to present a fair view of the arguments without protracting the report to an unreasonable length.

Points and authorities for appellant.

As to domicile. An intention to make a place his home, will determine the domicile. Grier v. O'Daniel, 1 Binn.; see spinion of Judge Rush, in a note, p. 351.

If the surviving executrix has rightfully distributed among the next of kin, nothing more is to be said. If not, the administratrix cum testamento annexo, is entitled. Row v. Dawson, 1 Ves. 331; Ferran's Estate, 1 Ashmead, 319; Marshall v. Hoff, 1 Watts, 440; Act, 1834; Executors and Administrators, Dunlap's Penn. Digest, 524. The property here is held to abide the event of this suit.

The right of the administrator de bonis non is exclusive. Commonwealth v. Strohecker, opinion of Kennedy, J., 9 Watts, 480.

Will took effect in 1829, by which the personal estate became vested in the executors, and by reason of the power of sale in the will and our act of assembly, March 31, 1792, § 4, (3 Smith's Laws, 67,) the title to the real estate became vested in them upon the trusts of the will; that is, to pay the legacies and annuities and invest for accumulation the surplus until the death of the widow, and then to distribute the surplus in charity.

The descent was broken. Silverthorn v. McKinster, 2 Jones, 72.

The administrator de bonis non cum testamento annexo is empowered to sell the real estate, the same as the executors. Act of 24th February, 1834, § 13, (67 Dunlap, 518, 530,) and Act of 12th March, 1800, § 3, (3 Smith, 434;) Mr. Binney's opinion, Hood on Executors, 241.

The objects are not very extensive or difficult of ascertainment. They are incorporated institutions of the two States for the purposes of charity; some of which are for the relief of colored people, and do not include beneficial societies. Blenon's Estate, Brightly, 340.

It is a settled principle that a trust shall never fail for want of

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a trustee. And the courts of equity will take upon themselves the execution of the trust. 2 Story's Eq. § 1059, 1061, 1191.

The administrator with the will annexed is the trustee for the settlement of the estate, and under the direction of the orphans' court, the trust can be executed by him. He will have the personalty, &c., and can sell and get proceeds of the realty. This power is in the orphans' court. Act 1832, § 4, Wimmer's Appeal, 1 Whart. 103, 104.

The personalty is under control of that court, (orphans' court,) and the moneys may be paid into that court for the uses of the will. Act 34, § 19. It was so done in Tilghman's Estate, 5 Wheat. 44.

These provisions meet ordinary cases.

But here as in England the courts will go further in favor of charities, than in ordinary cases. Our law favors charitable uses. Constitution of Penn. 1776 and of 1790; Girard Will case, 177; Acts 1730, 1731; Purd. 1010; 7 Sm. Laws, 43, 44.

Had the executors refused, they could have been compelled to execute the trust. It should not be lost by accident. Poll's Petition, 1 Ashmead, 346. See Welford Eq. Pleading, 110, Lib. Law and Eq., as to information of attorney-general.

The court will assume the exercise of the discretion to ascertain the objects, where they are much less defined than here, and where the executor intrusted, died in the lifetime of the testator. Boyle on Charities, 220; Bax v. Whitbread, 16 Ves. 15, see 26, 27; Cole v. Wade, 16 Ves. 43; Brown v. Higgs, 8 Ves. 570; See Moggridge and Thackwell, 1 Ves. 464; 7 Ves. 36; Affirmed, 13 Ves. 416.

The court could regulate and control the exercise of the discretion by the executor; and if so, when he cannot exercise it all, may it not do so for him? Grandom's Estate, 6 Watts & S. 551; Waldo v. Caley, 16 Ves. 210, 211.

Here the objects have not failed, and there is no occasion to resort to the doctrine of cy pres, or the royal prerogative.

The only question is, whether the court or administrator can select from the designated objects. If either can, then the trust is to be executed as if the executors had lived; or if either cannot, then all the charitable institutions incorporated by the two States must take.

In White v. White, 1 Bro. Ch. Cases, 12, the testator bequeathed to the Lying-in Hospital, and if more than one, to such of them as the executor should appoint; and named no executor. The court is to appoint.

A bequest to a charitable school to purchase Bibles, Testaments; and other religious books, held not too indefinite. This directed a religious purpose which was sufficiently certain. Attorney-General v. Stepney, 10 Ves. 27.

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So here there is at least a definite purpose as to objects in respect to the colored population besides the definitiveness of the charitable institutions of Pennsylvania and South Carolina, which define the objects to be the purposes for which these institutions have been established. Orphan Asylum v. McCartee, 9 Cowen, 440; King v. Woodhull, 2 Edw's Ch. R. 87.

A bequest is good where it is made to a class, as of such a parent, or to such of them and in such shares as an executor may appoint. Bartlett v. King, 12 Mass. 541; Brown v. Higgs, 8 Ves. 570, 574. It is not the case of a mere power, but of a trust accompanied by a power. In such case the trust is imperative and may be enforced; and is not lost by the refusal of the trustee to exercise his power, or by his death. 2 Sugden on Powers, 173, 175, &c.

There is nothing in the will that looks to the charity ending upon any condition or contingency. The will gives not the property over on any event.

He gives to the next of kin all that he intends they shall have, and means that they shall get no more.

As our law stood in 1829, the executor of the surviving executor would have taken the personalty, and administered it, or an administrator with the will annexed would have done so, and also have exercised the power to sell the lands and administer the proceeds. Act 1800, 3 Sm. Laws, 434, § 3.

The testator is presumed to have known the law of the place where the will was to be executed, and he is presumed to have known, that the law provided a substitute for his executors, to carry out the trust.

There was no condition, the breach of which would give the property to the next of kin, as in Porter's case, 1 Co. 21.

It was a trust and confidence, which the court will carry out if the trustee fails, as in Martindale v. Martin, 7 Vermont, 291; Cro. Eliz. 288.

And not only a trust, but a charity, 'which never faileth;' and not vague or indefinite, or to unincorporated societies.

In Martindale v. Martin, or Thetford School case, the executors refused the trusts, but it was held binding on them. See 7 Vermont, 298, 299.

If the intention to give to charity be declared absolutely, and nothing is left uncertain but the mode of carrying it into effect, the court will supply the mode. Mills and Farmer, 1 Meriv. 54, 94, 101, 102.

Thus in that case the testator directed the residue to be divided for certain charitable purposes mentioned, 'and other charitable purposes as I do intend to name hereafter,' and afterwards named no further purposes. Held, a disposition in favor

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of charity, to be carried into execution by the court, having regard to the objects particularly pointed out by the will. Ib. 54.

There the objects pointed out were the promoting of the gospel in foreign parts, and the bringing up ministers in different seminaries in England.

Here all the objects are pointed out, to wit: the charitable institutions of the two States, so as to include a benefit to part of the black population. Here is nothing to be supplied, but a leave given to select some only of those institutions.

Bequests made to two corporate bodies, for the relief of certain classes of poor persons, by paying their rents, and giving them gratuities according to selection. The societies renounce the legacies. Yet held that the discertion of the trustees was not of the essence of the trust, and that the court would carry the trust into effect by a scheme. Reeve v. Attorney-General, 3 Hare, 191.

Where bequests are made to trustees for general charitable purposes, the trust must be the subject of a scheme before the master; but where the object is a charity without a trust interposed, the disposition is in the crown, and must be made according to the directions under the royal sign-manual. Paice v. Archbishop of Canterbury, 14 Ves. 364, 371, 372.

This is not a case that in England would come under the king's...