Fox v. Gibbs , 86 Me. 87 ( 1893 )

Peters, C. J.

Joseph Walker, the testator, dying childless, left a will containing thirty-six bequests of public and private donations, and ending- with the following residuary clause:

" Thirty-seventh. Inasmuch as there may be charities, in Portland, or the vicinity thereof, and which if I were living, I might desire to assist, or benevolent and charitable objects and associations, which if I were alive, I might desire and wish to promote and strengthen by gifts, and pecuniary help; or schools and places of learning, or hospitals, or libraries, which if aided financially would increase the benefits and advantages derived from education and instruction ; or worthy individuals needing pecuniary assistance to obtain knowledge; or institutions and associations formed and organized for the welfare, advancement, benefit and good of the public, and which if living, I should manifest an interest therein, and therefore aid and assist the same; and with the intention, hope, wish, and desire that the rest, residue, and remainder of my estate, may be used to benefit society, relieve pain and distress, assist worthy and deserving-charitable and benevolent associations and objects, give instruction and education to those who are seeking for the same : — in order therefor .to carry out my views and wishes, I do, therefore, for the proper execution of these purposes hereby give, devise, and bequeath in trust, unto Frederick Fox and Albert B. Stevens, both of said Portland, and the survivor of them and to their successors as my trustees, and upon the following conditions and trusts, all the rest, residue, and remainder of my estate of every description, real, personal and mixed, together with any and all estate and bequests, residue or any other part or portion of my estate which by the terms and items of this my last will and testament have, shall, or may become, make and form a portion of said remainder and residue of my said estate; and said gifts, bequests, and devises are made to said Fox, and said Stevens, and the survivor, and their successors as my trustees, upon the following conditions and trusts, and for the due performance by my trustees of the following- duties and trusts, viz : my said trustees as aforesaid, shall within fifteen years from my decease, use, give, and expend, also distribute said i-est, residue and remainder of my estate with interest, dividends, income, and all accumulations arising or growing out of the same, for the causes of education, and learning, for the promotion, assistance and growth of benevolent, and charitable associations and objects. Said trustees as aforesaid, shall not be restricted in this work. They are to be the sole judges in what manner said residue and remainder of my estate shall be so used and expended ; and to whom, to what organizations and objects ; in what amounts ; and at what times ; in what manner, and under what restrictions, conditions and regulations the same shall be given, used, expended, and distributed; — the only restrictions and conditions I put upon said trustees as aforesaid being, that all of said residue, and income and accumulations as aforesaid, shall be used, given, expended and distributed by them for worthy, educational, charitable, and benevolent purposes and objects, and not for any other purposes whatever; said duties and acts of my said trustees to be done and performed within the County of Cumberland, State of Maine, and during said fifteen years from my decease.

"The charities I have remembered in this my last will and testament, if thought advisable by my trustees, may be further assisted; hospitals, schools, seats of learning', charitable and benevolent associations not organized or created at the date of this will, but which shall or may be created hereafter, and worthy individuals needing aid are to be helped by my trustees from said remaining trust estate and the income thereof, if said trustees think it wise so to do and under the restrictions I have placed upon said trustees.”

Some of the heirs-at-law of the testator oppose the approbation of this residuary bequest by the court, contending that it is void for its indefiniteness and uncertainty. This objection is not taken, however, by all the counsel for the different contestants.

It is maintained by some writers that the very omission of specification as fo persons and objects in a bequest of this kind is a distinctive test of its true charitable character, and that the trustee or the court can supply a much better scheme for the distribution of the fund than is apt to be found in the many wills where testators have imagined that their wishes could be subserved by annexing impracticable restrictions and conditions to their bequests. Be that as it may, we deem the question as not now an open one in this State, as the objection here presented has been repeatedly overruled by our own decisions. It would be useless to review the doctrine anew either upon the general authorities or upon principle. Howard v. American Peace Society, 49 Maine, 288; Swasey v. American Bible Society, 57 Maine, 523 ; Simpson v. Welcome, 72 Maine, 496: Dascomb v. Marston, 80 Maine, 223; Everett v. Carr, 59 Maine, 334. In the last case cited, a bequest was sustained which directed funds to be annually paid to a person for such person "to use for charitable purposes and objects.” The Massachusetts cases take the same view of this question. Bullard v. Chandler, 149 Mass. 532; Minot v. Baker, 147 Mass. 348; and cases there cited.

The other and principal objection to the bequest in question is that it empowers the trustees to use the funds, intrusted to them, for benevolent purposes which are not charitable. This objection must be fatal to the validity of the bequest if such was the intention of the testator. Trusts cannot be upheld which are devoted to mere benevolence, or liberality, or generosity. And if these trustees can appropriate any of the funds to benevolence they can use all of them for that purpose.

But the question arises as to the meaning of the word benevolent in its connection with all the other terms of the will. Benevolence may or may not be charitable in the legal sense. The perplexity comes from the fact that the word is used with different meanings according to circumstances, it sometimes signifying liberality and generosity and sometimes charity in the technical sense of the word. Charity may be benevolence, but all benevolence is not necessarily charity. Here the questionable phrases are "benevolent and charitable objects and associations,” "worthy and deserving charitable and benevolent associations and objects,” "worthy educational, charitable and benevolent objects and purposes.”

We are much impressed with the belief that neither the scrivener or testator supposed that they were constructing.any but charitable bequests. . The word benevolent was inserted to intensify the word charitable rather than otherwise. The two words are coupled as one expression. It is charitable and benevolent, and not or benevolent. There is much on the face of the will to induce this conclusion. The testator makes numerous bequests of a specific character which may be denominated benevolent, and no doubt made as many as he contemplated of that kind of gift. His mind seems to have been intensely imbued with ideas of "schools and places of learning,” of "hospitals and libraries,” of the "advantages of education and instruction,” of "worthy individuals needing pecuniary assistance to obtain knowledge,’’ and of using his residuary estate "to benefit society and relieve distress and pain.” He speaks of "institutions organized for the welfare and advancement, benefit and good of the public.” His mind dwells somewhat on "organizations and associations,” thinking no doubt of charitable institutions. He speaks in several instances of "charities,” and not of benevolences. He limits the use of his estate to the general purposes named by him, and cautions his trustees that the funds are to be so used "and not for any other purpose whatever.” All the clauses of this final bequest are impressive evidence of the desire of the testator that his remaining estate should be disposed of for the public good. The bequest breathes the spirit of charity in all its lines and nothing else. We think it would have shocked the testator to believe that two or three hundred thousand dollars of his property might by any possibility bo expended by his trustees for purposes not strictly charitable. In his own mind the words benevolent and charitable -were undoubtedly regarded as synonymous terms.

But does the law permit us to adopt the construction -which we have indicated ? We have no hesitation in answering this inquiry in the affirmative. Such a decision will be in consonance with the liberal views and expressions of this court in its interpretation of all kindred subjects and questions. In fact, the words in question as occurring in our statutes on the subject of taxation have already been interpreted by this court. In Maine Baptist Missionary Convention v. Portland, 65 Maine, 92, it is said in the opinion : "It may be difficult to say what a 'benevolent institution’ is if it differs from one that is merely charitable.” And in Bangor v. Rising Virtue [Masonic] Lodge, 73 Maine, 428, Appleton, C. J., remarks for the court: "The statute upon which the defendants rely, uses the word benevolent, but there is no question that this word, when used in connection with charitable, is to be regarded as synonymous with it and as defining and limiting the nature of the charity intended.”

There are precedents strongly advocating the principle in several of the New England states, and it is now the doctrine of the English courts. The doctrine is also accepted in some other of the American States and rejected in others. A few cases only need be cited for present purposes. Saltonstall v. Sanders, 11 Allen, 446, an exhaustive case ; Rotch v. Emerson 105 Mass. 431; Suter v. Hilliard, 132 Mass. 412. See Chamberlain v. Stearns, 111 Mass. 267, for citation of cases on both sides of the question, including English cases. Pell v. Mercer, 14 R. I. 425 ; Goodale v. Mooney, 60 N. H. 528. In the last two cases cited the word benevolent, without being coupled with the word charitable, is construed from the context to have the meaning of the latter word. Those cases hold that the two words may be regarded as equivalent or analagous expressions. Mr. Perry and Mr. Boyle strongly approve of the general doctrine which we adopt as applicable to the present facts. Perry on Trusts, (4th ed.) § 712; Boyle on Charities, pp. 286-299.

It follows, therefore, that the surviving trustee is entitled to receive from himself as surviving executor the estate and property described in the residuary clause, being bequest thirty-seven, and as such trustee he is entitled to control and administer all the same according to the terms of such residuary clause as herein construed ; and there must be a

Decree accordingly.