Hazeltine v. Vose , 80 Me. 374 ( 1888 )

Daneorth, J.

The complainants ask for an interpretation of a part of the fifth item of their testator’s will, which reads as follows, viz : "I give and bequeath, at my wife’s decease, out of my estate left her by me during’ her life, to the institution for the Home of Little Wanderers, one thousand dollars, ($1000) ; and to the institution for the Home of Aged Women, one thousand dollars, ($1000) : each of said bequests to be safely and permanently invested and held in trust by each of said institutions, the income only of which to be used annually, for the benefit of the occupants of said institutions forever. These . . . bequests are to be given to said institutions of the State of Maine, if any such exist at the time of my decease, or by the time said bequests are ready to be paid by my executors ; if not, to be given to those of Massachusetts, if any such exists at my decease.”

In this provision we find a specific sum of money bequeathed for the benefit of two classes of people — little wanderers, or indigent children, and aged women in need of assistance. This is made clear from the language used. The terms applied to the institutions are evidently used as descriptive of the object and purpose of their organization rather than as names to identify the particular institution which is to take. While, it is from extrinsic testimony in the case rendered quite certain that when the testator made his will he had in his mind "The Baldwin Place Home for Little Wanderers,” yet it is equally certain that he so had it as an illustration of the character of the institution he wished to aid rather than the particular one to be aided; for, a part of the very clause in question provides that in the uncertain future when the legacy is to be paid, if "any such” shall exist in Maine, that shall have the preference. So with regard to the other legacy ; the fact that at the execution of the will, many institutions for the aid of aged women were in existence and that the testator by the terms used referred to one, leads to a very satisfactory conclusion that he had knowledge of the existence of one or more, as well as of the class of persons to be aided by them. There can then, be no doubt as to the class of persons to be aided, the cestui que Rust in each case of the testator’s bounty, and that the gift is a charitable one. The will must therefore be sustained, and if the testator has not provided for an execution of the trust the court will. Howard v. Peace Society, 49 Maine, 288; Preachers’ Aid Society v. Rich, 45 Maine, 552; Straw v. Societies, 67 Maine, 494; Nason v. First Church, 66 Maine, 100.

Has the testator provided trustees for the management of his bounty ? From the considerations already suggested, the answer must be in the affirmative. For the legacy in aid of Little Wanderers, there are two applicants, one in Massachusetts and one in Maine. If the name alone were to govern it is, under the circumstances, near enough to the true name to give it to " The Baldwin Place Home for Little Wanderers,” but by the express terms of the will if there is "any such” institution in Maine, "when the bequests are ready to be paid” that is to have the preference. Using as we must the name only as descriptive of the character of the institution intended by the testator as the recipient of the legacy, we find from the constitution and by-laws of the Bangor Children’s Home, which are in the case, that, that is "such” an institution as the testator contemplated, that its object and purpose is the same as that of the Baldwin Place Home. The legacy for homeless and indigent children must therefore be paid to that institution.

In regard to the other legacy it is evident that the testator had in his mind no particular institution, though he used the definite article and the singular number, "The institution.” It was plainly in his mind that some then in existence might not be when the legacy was to be paid, or that others might be organized. He described the organization he wished to aid, the object to which he desired his money to be devoted, and left it to be settled, when the time of payment came, to what institutions it should be paid. For this legacy there are four applicants, all from Maine, and all from their organization having the same object and purpose in view, all answering the description in the will. They are all therefore "such” institutions as the testator contemplated. We see nothing inconsistent with the testator’s expressed intention, in dividing this legacy among the four. On the other hand the words used in the will "if there are any such” in Maine, would seem to authorize it. Another consideration tends the same way. These organizations are all local in their operation. In the bequest there is no limit arising from the residence of the beneficiaries. It would therefore seem to be more in accordance with the testator’s intention to make the division.

The result is that one of the legacies is to be paid to "The Bangor Home for Children,” the other to be equally divided between the four applicants therefor.

Decree accordingly.

Peters, C. J., Walton, Virgin, Libbey and Emery, JJ., concurred.