Mills v. Newberry , 112 Ill. 123 ( 1885 )

Mr. Justice Sheldon

delivered the opinion of the Court:

The contingency mentioned in the first clause of the will occurred, and there were none to take under the will other than Mrs. Newberry, the mother, and some charitable institution for women in Chicago. The condition of Mrs. Newberry taking under the will was, that she should, before receiving the bequest to her, execute a will devising, as mentioned, the undisposed or unspent part of the property. This condition we regard a condition precedent. Mrs. Newberry declined to execute the will and perforin the condition. She could then take nothing under the will. Where, then, did the property bequeathed' to her, go ? When a legacy is given upon a condition precedent not performed, the legacy falls into the residue; and where a legacy lapses, there being no residuary bequest, it will go to the next of kin as estate undisposed of under the will. 2 Redfield on Wills, 175, 176; Prescott v. Prescott, 7 Metc. 141.

It is insisted that there was, here, a residuary clause; that the whole estate was given to two parties—the mother, and charity; that the estate was to go, a certain portion to the mother, the remainder, “so much thereof as shall remain undisposed of and unspent, ” was to go to charity. That what shall remain, means the residuum, and charity is to .take the residuum. The remainder here spoken of is by no means tantamount to a residuary clause, which will embrace and carry all that is not disposed of to others by the will. It is a remainder which embraces but that which shall remain undisposed of or unspent at the time of the decease of Mrs. Newberry. It is something which may never be, and if it ever shall arise, it will only be upon such decease.

It is urged, again, that by the doctrine of acceleration, charity is immediately entitled to the whole of the estate,— such doctrine being, that if there is a gift to one person for life, and after-his death to another, if the first one is incapable of taking, or if he refuses to take, the remainder is accelerated. Although the ulterior devise, in terms, is not to take effect in possession until the decease of the prior devisee, if tenant for life, yet, in point of fact, it is to be read as a limitation of the remainder, to take effect in every event which removes the prior estate out of the way. Theobold on Construction of Wills, 450; 1 Jarman on Wills, (5th Am. ed.) 574; Blatchford v. Neivberry, 99 Ill. 11.

It is said the whole estate, here, was given to two parties, the mother and charity, in succession; that it was not intended, that any part of the estate should become intestate, or that the next of kin, as such, should receive anything, and that the intention was, that when the estate of one party ceased, that of the other shoul^. commence in possession; that such is the result, here, under the rule of acceleration, and that the court should ascertain the special object of charity, and.order the whole fund paid over at once by Mrs. Newberry to such object. What here stood in the way of anything going over to charity, was the enjoyment of this property by Mrs. Newberry, with the right of expending and disposing of it until the time of her decease. This prior estate has not been removed out of the way,—it has not gone or would not go over to any other person, but is in the rightful possession and use of Mrs. Newberry, with full capacity of spending and disposing of it. True, the enjoyment of the property by her is not under the will, as devisee, but under the law, as next of kin. But what difference should that make ? The technicality of how the mother enjoyed,—whether as devisee or next of kin,—the testatrix could have cared nothing for. The thing substantial was the use and enjoyment of the property for life. As next of kin, Mrs. Newberry enjoys the use of the property, and the right of expending and disposing of it, just the same as she would have done had she executed the will as required by the first clause. All that has happened is., that Mrs. Newberry has refused to perform the condition,—to execute the will. But that in no way interrupts her use and enjoyment of the property. What was to go over to charity was not that which remained undisposed of or unspent at the time of refusing to perform the condition or to take under the will, but it was so much as should remain undisposed of or unspent at the time of Mrs. Newberry’s decease. She was to have the use and enjoyment of the property, with the power of disposing, of it, so long as she lived. The refusing to perform the condition can not be taken as the equivalent of- her death. Had anything occurred to cause inability afterward to make any use of the property and to expend or dispose of it, that, with some reason, might be urged as such equivalent, and as accelerating the enjoyment by the ulterior object of bounty. The rule of acceleration is applied in supposed fulfillment of the testator’s intention. The paramount intention appearing in this will is, that the mother should have the possession, use, enjoyment and disjiosition of the whole of this property so long as she lived. The interest of charity was quite subordinate in the testatrix’s consideration, and it was but the undisposed of and unspent remnant remaining at the end of life. It would be doing the greatest violence to the intention disclosed in the will,'to'hand all the property over to charity upon the mother declining to execute the will mentioned in the condition, and in our opinion there is no legal principle which so requires. There being no residuary clause in the will, upon non-performance of the condition precedent the property went over to the next of kin, and the executor rightly distributed the same to Mrs. Newberry, as such next of kin.

Taking this as being so, it is then contended for appellant, that it was but the legal title to the property which went to Mrs. Newberry, and that there was a trust in favor of charity attached to the property in her hands, created by the words of the condition in the first clause. We agree, in the main, with what is urged by appellant’s counsel upon this branch of the cause, except in its application in this case. It has been established from a series of eases, that where a bequest, accompanied by words expressing a command, recommendation, entreaty, wish or hope, on the part of a testator, that the donee will dispose of the property in favor of another, a trust will be created,—first, if the words, on the whole, are sufficiently imperative; second, if the subject be sufficiently certain; and third, if the object be also sufficiently certain. (Hill on Trustees, 110.) Such a charity as here, is favored in law, and will receive a more liberal construction than will be allowed in gifts to individuals. As is said by Story: “In the interpretation of the language of wills, courts of equity have gone great lengths, by creating implied or constructive trusts from mere recommendatory and precatory words of the testator. ” (2 Story’s Eq. Jur. sec. 1068.) But as said further, in section 1069 : “In more modern times a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.” There is in this case more than the expression of mere recommendation, confidence, hope, wish and desire that the remainder left of the property should go to charity. It is made an express condition that the devisee, before receiving the bequest to her, shall devise, by will to be executed by her, such remainder to charity. The language is of a peremptory and imperative nature, expressive of the testatrix’s intention which she wills to be performed, answering the description of a will, as legally defined: “The legal declaration of a man’s intentions, which he wills to be performed after his death. ” 2 Blackstone’s Com. 499.

We think the language of this condition fully sufficient to create a trust with respect to such property as may be the subject of a trust. And we do not feel any difficulty in respect to uncertainty of the object of the bounty to charity, or in respect to the necessity of a will from Mrs. Newberry in order to carry the subject of the bounty. Although the condition reads that Mrs. Newberry should devise, hy will, the undisposed of or unspent part of the property to such charitable institution for women, in the city of Chicago, as she might select, we do not deem it of the essence that Mrs. Newberry should have made the will, or the selection. There is here expressed a general intention in favor of charities for women, in Chicago, and a power given to Mrs. Newberry to select the particular object of charity; but her failure to make the selection the court will not allow to disappoint the beneficiaries, but will carry into effect the general intention in favor of the class, and will itself execute the power to select the particular object of charity. As observed by Mr. Perry, in his work on Trusts, (vol. 1, sec. 250,) Lord Cottenham, in Burroughs v. Philcox, 5 M. & C. 72, stated the general rule deduced from the eases, as follows: “When there appears a general intention in favor of a class, and a particular intention in favor of individuals of a class to be selected by another person, and the particular intention fails from that selection not being made, the court will carry into effect the general intention in favor of the class. When such an intention appears, the case arises as stated by Lord Eldon in Broion v. Higgs, 8 Ves. 574, of the power being so given as to make it the duty of the donee to execute it; and in such case, the court will not permit the objects of the power to suffer by the negligence or conduct of the donee, but fastens upon the property a trust for their benefit. ” It was said by this court in Heuser v. Harris, 42 Ill. 435: “The opinions in the eases of Maggridge v. Thackwell, 7 Ves., and Mills v. Farmer, 1 Merrivale, were by Lord Eldon, and resulted in this, that if a testator has manifested a general intention to give to charity, the failure of the particular mode by which the charity is to be effected will not destroy the charity, for, the substantial intention being charity, equity will substitute another mode of devoting the property to charitable purposes, although the formal intention as to the mode can not be accomplished. ” And see 2 Story’s Eq. Jur. sec. 1167.

But an insuperable difficulty which we find to be in the way of the present proceeding, is the uncertainty as to the subject matter of the trust attempted to be asserted. The subject is, so much of the property as shall remain undisposed of or unspent at- the time of the decease of Mrs. Newberry. The property having been previously given to her absolutely, we construe the above as giving her the full power of expenditure and disposition of the property during her lifetime. What, then, is there to which a trust can now attach?— which a court of equity can now take hold of, and administer as trust estate ? Evidently nothing. It is not the whole property, nor is it any particular part of it, for it all must remain with Mrs. Newberry so long as she lives, for her to spend and dispose of. There may, or there may not, be something remaining úndisposed of or unspent by her, at the time of her decease. Whether anything at all will be so left, is now entirely uncertain. The authorities fully establish that the subject matter of the supposed trust must be certain. “To constitute a valid trust, undoubtedly three circumstances must concur: sufficient words to raise it, a definite subject, and a certain or ascertained object.” (Sir Wm. Grant, in Cruwys v. Colman, 9 Ves. 323.) “I do not lay it down that in a will a request may not amount to a legacy, but it should be limited to some certain thing or for some certain part of a thing, and not left absolutely to the pleasure of the person to whom the request is made. ” (Lord Hardwicks, in Bland v. Bland, 2 Cox, 355.) In the language of Story: “Wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act, or not to act, is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership,—in all such cases courts of equity will not create a trust from words of this character.” (2 Story’s Eq. Jur. sec. 1070.) The rule, which we believe to be amply supported by the authorities, is thus laid down in Hill on Trustees, 119: “But any words by which it is expressed, or from which it may be implied, that the first taker has the power of withdrawing any part of the subject from the object of the wish or request, or of applying it to his own use', will prevent the subject of the gift from being considered certain. ” See, also, Knight v. Knight, 3 Beav. 173; Howard v. Carusi, 109 U. S. 725; 2 Pomeroy’s Eq. Jur. sec. 1014—1017; Williams v. Worthington, 49 Md. 572.

We do not consider, as indicated in the earlier part of this opinion, that the uncertainty in the subject has been removed by the refusal of Mrs. Newberry to perform the condition.

It' is suggested that the true construction of the words, “remain undisposed of and unspent, ” means that the whole estate of the testatrix, Julia Rosa Newberry,—that which remained undisposed of and unspent by the testatrix,—should go over to charity upon the death of Mrs. Newberry, who should be held simply a trustee of the fund. We can not think this to be the correct construction, but that the clear meaning is, that it was the remnant of the property remaining “undisposed of and unspent” by Mrs. Newberry at the time of her decease, which was to go over'to charity.

We find that the condition in question fails in the condition of certainty as to the subject, essential to the creation of a trust, by the words used, and we hold, at least, that the present proceeding is premature, in there being no subject now existing to which a trust can attach, and in respect whereof the interference of a court of chancery can be called for or exercised.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.