Swayze's Estate, Dean v. Bennett , 120 Mont. 546 ( 1948 )

I dissent.

The will of Mary Swayze, entirely written, dated and signed by the hand of the testatrix herself, evidences the fact that it was made and executed at "Sheridan, Montana, Nov. 27, 1944."

It nominates and appoints as executor thereof Lyman H. Bennett, Jr., an able and learned member of the bar of this court, residing at Virginia City, Montana.

The last paragraph of the will directs the executor "to reduce sufficient of my estate to cash, such cash to be utilized for the erection and maintenance of a modern hotel at Virginia City, Montana, where no intoxicating liquors are to be sold at any time, said hotel to be maintained as a memorial to me."

It directs the executor "to cause the formation of a corporation to be known as the Mary Swayze Memorial Hotel Company."

It directs that to such "corporation said hotel is to be conveyed and by which it is to be maintained and operated."

It is a matter of political history that Virginia City, the first incorporated town in Montana (January 1864) and the second territorial capitol of Montana, once boasted of "The Five Story Hotel" about whose glories and comforts every stagedriver sang on his way to the town but which, upon arrival, the expectant sojourner found to be a rambling structure built on five successive levels on a steep hillside, each level being but one story high.

The executor offered to prove that about the year 1937 Virginia City's only hotel burned or was razed since which time the town has been wholly without hotel facilities to accommodate the large number of visitors who are annually attracted because of Virginia City's great historical interest and because it is the county seat of Madison county.

Inspired by the intimate knowledge of the numerous charities of William Boyce Thompson, once Montana's wealthiest son, who was born and reared in Virginia City and who gave to it the Thompson-Hickman Museum and Free Public Library and to Yonkers, New York, as a memorial to his father and mother, the world famous Boyce Thompson Institute of Plant Research, is it at all strange that Mary Swayze should attempt to provide Virginia City with hotel facilities and thus improve and promote the welfare of the luckless wayfarer who otherwise would find himself a stranger in a strange land where neither food nor lodging would be available?

A charity has been defined to be a gift to a general use, which extends to the poor as well as the rich. It is not confined to mere almsgiving, or the relief of poverty and distress, but has a wider signification, which embraces the improvement and promotion of the happiness of man. New England Sanitarium v. Stoneham, 205 Mass. 335, 91 N.E. 385.

In Thornton v. Franklin Square House, 200 Mass. 465,86 N.E. 909, 22 L.R.A., N.S. 486, it was held that property acquired, occupied and used as a home for working girls, who paid for fuel, light, food, laundry and domestic services at prices as cheap or cheaper than such accommodations could be had elsewhere under similar conditions of respectability and comfort, was held and occupied for charitable uses.

In Thorp v. Lund, 227 Mass. 474, 116 N.E. 946, 948, Ann. Cas. 1918B, 1204, the court upheld as a charitable trust a fund provided by the widow of the distinguished violist Ole Bull to be devoted toward the erection in Norway of a suitable memorial to her late husband. The court there said: "A gift dictated by a general benevolent purpose is to be liberally construed and, if reasonably possible, upheld as a valid charity, rather than declared void."

In Shannon v. Eno, 120 Conn. 77, 179, A. 479, 490, the court construed a paragraph in the will of Anna J.E. Eno which read: "I give the sum of two thousand dollars for the purpose of founding and supporting a Cattery, to be situated in or near Ansonia, for the care of homeless animals and boarders." In declaring such provision valid the court said: "The intention of the testatrix in making the gift in the twentieth paragraph was obviously to afford care and protection to and alleviate the sufferings of that class of animals which by domestication contribute to comfort, pleasure, and well-being of man; and it is not questioned that such a gift is a proper charitable use. Minns v. Billings, 183 Mass. 126, 130, 66 N.E. 593, 5 L.R.A., N.S., 686, 97 Am. St. Rep. 420; In re Graves' Estate, 242 Ill. 23,89 N.E. 672, 24 L.R.A., N.S., 283, 134 Am. St. Rep. 302, 17 Ann. Cas. 137; In re Coleman's Estate, 167 Cal. 212, 214, 138 P. 992, Ann. Cas. 1915C, 682; 66 A.L.R. 465, note. Nor are the terms of the gift in this paragraph too uncertain in themselves to constitute a valid trust. Mack's Appeal, 71 Conn. 122, [134] 135, 41 A. 242; Eliot's Appeal, 74 Conn. 586, 51 A. 558; Brinsmade v. Beach, supra [Brinsmade v. Beach, 98 Conn. 322, 336,119 A. 233]." See also McCran v. Kay, 93 N.J. Eq. 352, 115 A. 649.

"The territorial legislature of Montana in 1877, recognized the validity of holographic wills by the enactment into law of what is now sections 6981 and 10031 of the Revised Codes. * * *

"The law of this state expressly permits a person, without the assistance of an attorney at law, or any one else, to make a valid testamentary disposition of his property. The question is not whether attorneys and courts approve of holographic wills. The law of this state approves and for over sixty-six years has approved of such wills. Courts therefore have no right to apply a strict and unreasonable construction to such informal writings, and, by seizing upon immaterial technicalities, declare them invalid, thereby defeating not only the will of the deceased person, but also that of the legislature." In re Irvine's Estate,114 Mont. 577, 139 P.2d 489, 494, 147 A.L.R. 882.

In my opinion Mary Swayze's will is valid and the judgment of the trial court holding the last paragraph thereof void for uncertainty should be reversed.