Murdock v. Bridges , 91 Me. 124 ( 1897 )

Haskell, J.

The plaintiff on July 15th, 1896, received from one Ann Banks $1200, and at the same time took from her a writing of the following tenor:—

“To whom it may concern: This is to certify that I have this day appointed W. E. Murdock to look after my property and pay all my honest debts, and after that to keep in trust all of my personal property, and to look after my husband, Nathan E. Banks, the rest of his days, and to pay his honest debts with the balance of my personal property, and after his death, the balance shall go to the people who have cared for me, as W. E. Murdock shall think best.”

Under this authority plaintiff paid for Ann Banks one hundred dollars, leaving a balance of $1100 principal in his hands. Ann Banks died August 1st, 1896, and Nathan E. Banks died on the 28th of the following October, leaving a small estate.

I. What is the legal effect of the writing given to the plaintiff by Ann Banks ? It is contended that it creates a trust with power of distribution in the plaintiff, who now proposes to execute the same. It does create a trust for two purposes. First, to pay the debts of the cestui, and second, to provide for her husband. Both these purposes have been performed. Can the remaining purpose of distribution be exercised by the plaintiff? It is an attempted bestowal of property upon a class of persons, wholly uncertain, to be selected by plaintiff and is to be distributed among them as he may choose. As a testamentary disposition of property it must fail for not complying with the statute of wills. As a trust, it must likewise fail for want of certainty and because it is a pure benevolence and not a charity. Suppose the plaintiff had died before attempting to appoint the distributees. Could a court invest a new trustee with power for the purpose, or exercise the power itself ? The power attempted to be given was personal, and would have .perished with the person. It is not a charity, nor does it even name a certain class of distributees. It says, “to the people who have-cared for me as W. E. Murdock shall think best.” A more uncertain class of distributees could not be thought of. They are not supposed to be kindred, nor even those who have performed services for which a compensation would be due, for all debts were to be paid, and have been paid, but persons who have been most meritorious in their attentions to the donor, in the opinion of the plaintiff. It is wide open to favoritism and fraud, and obnoxious to a court of equity that favors the equal- distribution of estates among kindred, where no charity or particular person, or classes of persons, are named.

This is an executed trust with a power of disposal unexecuted, and the question is whether the power be valid.

In Fox v. Gibbs, 86 Maine, 87, a testator bequeathed the residue of his estate to trustees, to be by them distributed “ for the causes of education and learning, for the promotion and assistance and growth of benevolent and charitable associations and objects, etc., within the county of Cumberland.” These trustees were to exercise the power, selection and distribution within the scope of the trust. It was objected that the trust was void from uncertainty, but the court say that it is settled otherwise in this state. It was further objected that the trust was void because the trustees might use the funds for benevolent purposes that were not charitable. The court says; “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.” The trust was upheld because it was a charity, and not for benevolence that was not charitable.

Trusts of this sort, are usually defined by the words, “ benevolent” or “charitable.” Now benevolent is a word of much broader significance than charitable, and may include what are not charities; and the courts invariably inquire into the meaning of the testator or donor, and if the meaning implies a charity, the trust stands, otherwise not. In this cause neither word is used, therefore such inquiry need not be made. But the language used clearly implies a benevolence, not a charity. It is a kindness to persons who have cared for the donor, not a compensation. The trustee is to name such persons and apportion the fund among them. It is purely good will, a benevolence, as much as if that word had been used. It does not relieve suffering or poverty or distress, or go in aid of education or religion, or of any object known to the law as a charity.

In Chamberlain v. Stearns, 111 Mass. 267, a trust solely for benevolent purposes is held void. In .that case many cases are cited and classified.

In Nichols v. Allen, 130 Mass. 211, the residue of an estate was bequeathed to executors “ to be by them distributed to such persons, societies or institutions as they may consider most deserving,” and the court held the trust not a charity and too indefinite to be executed, and that the kindred took by way of resulting trust. The" court says: “Two general rules are well settled: 1st. When a gift or bequest is made in terms clearly manifesting an intention that it shall be taken in trust, and the trust is not sufficiently defined to be carried into effect, tide donee or legatee takes the legal title only, and a trust results by implication of law to the donor and his representatives, or to the testator’s residuary legatees or next of kin. Briggs v. Penny, 3 DeG. & Sm. 525, and 3 Macn. & Gord. 546; Thayer v. Wellington, 9 Allen, 283; Sheedy v. Roach, 124 Mass. 472. 2d. A trust which by its terms may be applied to objects which are not charitable in the legal sense, and to persons not defined, by name or by class, is too indefinite to be carried out. Morice v. The Bishop of Durham, 9 Ves. 399, and 10 Ves. 521; James v. Allen, 3 Meriv. 17; Chamberlain v. Stearns, 111 Mass. 267.” Many cases are reviewed in the opinion that need not be mentioned here.

“That a gift should be charitable, there must be some benefit to-be conferred upon or duty to be performed towards the public at large, or some part thereof, or an indefinite class of persons. A bequest for the aid or benefit of defined persons is not a charity, but a trust only, as a gift to be distributed among certain poor families named, or certain persons identified in the bequest.” Bullard v. Chandler, 149 Mass. 540.

Norris v. Thompson's Executors, 19 N. J. Eq. 307, is a case very like the one at bar. A testator directed that his wife might by will devise a certain residue of her estate to such benevolent, religious or charitable institutions as she might think proper. There the power was conferred by will. Here by written declaration. There it was held to be void, because too indefinite and not for charity. A devise or trust for benevolent objects, not charities, is void. Morice v. The Bishop of Durham, 10 Ves. 522; James v. Allen, 3 Merivale, 17; Ellis v. Selby, 1 Myl. & Cr. 286; Williams v. Kershaw, 1 Keen, 227, note; Kendall v. Grange, 5 Beav. 300; Vesey v. Jamson, 1 Sim. & S. 69; Brown v. Yeall, 7 Ves. 50, note; Ommanny v. Butcher, Turn. & Russ. 260; Adye v. Smith, 44 Conn. 60.

. In this case the plaintiff is a trustee of an executed trust, and holds the fund as a resulting trust in favor of the donor’s heirs at law, and it should be paid to her administrator for distribution. This result does not call for a decree of interpleader, and the defendants’ demurrer is therefore well taken.

Bill dismissed.