Loomis Institute v. Healy , 98 Conn. 102 ( 1922 )

The brief of the defendant very correctly states that only two questions of importance are presented for the determination of the court, that is, whether the testamentary provision of the will of John Mason Loomis quoted in the statement of facts is mandatory, and does it apply to all of the funds of the Institute; which may be summed up in the one question, what is the intent and meaning of this provision? The intent of any testator governs as respects such questions as are involved in the present controversy, as in all cases where the language used does not contain terms of art which have received such a rigid application that the testator is presumed to have used them in their artificial and technical meaning. Such terms of art are commanding and their effect invariable. But when words are employed not carrying with them a decisive technical import, the principle of testamentary intent becomes the guiding rule. At one time the use of words of request, entreaty or recommendation, were held to create a trust, if the subject and object of any given provision were reasonably certain. The course of decisions in such cases well might have hardened into an arbitrary rule of construction. InHess v. Singler, 114 Mass. 56, 59, the court, referring to the earlier doctrine, says: "But by the later cases, in this, as in all other questions of the interpretation of wills, the intention of the testator, as gathered from the whole will, controls the court; in order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence." The following rule as formulated in 40 Cyc. 1735, seems to be a fair deduction from many cases, and is succinct and comprehensive: "The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create a trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner." To the same effect are the following: 2 Alexander, Commentaries on Wills, §§ 1098, 1099, 1102; 1 Jarman on Wills (6th Ed. Bigelow) s. pp. 358, 359, 361 and note 1; 1 Perry on Trusts Trustees (6th Ed.) § 113; 3 Pomeroy, Equity Jurisprudence (4th Ed.) § 1016; Gardner on Wills (2d Ed.) p. 478. In Hughes v. Fitzgerald, 78 Conn. 4, 7,60 A. 694, this doctrine is recognized and stated as follows: It is "settled law in this State, that a trust will not be raised by expressions in a will importing recommendation, confidence, or desire, unless it clearly appears that they were intended to be used in an imperative sense," citing Bristol v. Austin, 40 Conn. 438, 447;Harper v. Phelps, 21 Conn. 257, 269; Gilbert v. Chapin,19 Conn. 342, 351.

An important corollary to this rule is that precatory words cannot cut down or diminish an estate given absolutely in the foregoing portion of the will. 2 Alexander, Commentaries on Wills, § 1100. "Where an estate in fee is devised in one clause of a will, in clear and decisive terms, it cannot be taken away or cut down, by raising a doubt upon a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate in fee." Ross v. Ross,135 Ind. 367, 371, 35 N.E. 9.

Bearing in mind the above general rules, but at the outset leaving out of view certain subordinate rules for later consideration, an effort may now be made to ascertain the intent of the testator by reference to the general structure of the will and the language used to express his testamentary intent. He starts out with a bequest in trust of all of his property to his wife for life, coupled in certain contingencies with an annuity to his sister, Abby L. Hayden, and then, in the last direction to his trustees, directs them to pay and turn over to the trustees of the Loomis Institute the entire residue of his estate "for its sole use forever." Then follows two pages and a part of a third, of the will as originally written, containing certain explanations of testator's motive prompting his gift and giving his views as to the proper management of the Institute. At the very outset of this explanatory portion of the will he again says that to the Loomis Institute "I give the entire remainder of my estate." The entire legal title is vested in the legatee and the beneficial interest. Further "to describe and identify" the object of his bounty, he attaches to and makes part of his will a printed copy of the Act of incorporation of the Institute as passed by the General Assembly in 1874. In the first codicil of his will, made a few months after the execution of the latter, he says: "I desire to omit from line 4 of the fourth page of my will, the words, ``and make a part of it,'" and states that his intention in attaching the copy of the charter was not to incorporate the same into his will and make it a part thereof, but was only to identify the beneficiary, and adds: "I have written into my will the substance of those provisions of said Act which I consider essential." It will be noted, and will be discussed hereafter more at length, that all of the more specific matters which he had written into his will were also contained in the original charter of the corporation, excepting only the provision as to the division of its funds in investments of buildings, outfit, etc., and productive securities, and hence it is a fair deduction that the part of his will which we are now considering was in the nature of comment and advice with regard to the objects of the institution and its management. The excision of the charter as an integral part of the will could only have been made, as appears from the language used, with a design to avoid any implication of fettering or limiting the future development of the corporation upon such lines as experience might indicate as wise and desirable. He sketches the history of the foundation of the institution and the motives which actuated his brothers, sister and himself, all finding themselves without living representatives, to devote the remainders of their several estates to the foundation of an institution which should carry down to posterity the memory of the Loomis family, to be located upon a tract of land which had been in possession of the family since its founder had settled thereon in 1639. Then, in rather grandiose style, he expatiates upon the good which he thinks will enure from this benefaction to the Loomis family, and the opportunity offered to succeeding generations thereof, catching their inspiration from the best of their race who have gone before, to keep "the banner of human progress, honor and manhood to the front."

It would seem obvious that the testator had in mind, as there were no descendants of himself and his brothers and sister, to benefit all who should bear the name of Loomis, without regard to those relatives who might be his legal representatives in case of intestacy. It was the whole family that was the object of his benefaction, and if it chanced that the family at large should prove as infertile as his immediate branch of it had evidently been, then to those belonging to the town of Windsor, and if these latter failed to make up the complement, to those belonging in Connecticut, and failing enough of all of these classes to exhaust the resources of the foundation, then to worthy persons without regard to State or nation. The testator, in a clause just preceding the mention of the order of preference in admission of pupils to the Institute, says it is his wish that the latter should be kept up to and in accordance with the best interests of society, continuing the rather hortatory tone which appears in his preceding statement as to the motives leading him and his brothers and sister in founding the charity. It may here be noted that the provision as to order of precedence in admission of pupils to the school is a close paraphrase of the charter provision in that regard.

Passing now to the paragraph which gives rise to the present action, we may note that the testator says it is his will that no buildings shall be commenced until at least $200,000 are in the hands of the trustees. This is identical with the charter provision. He also says that none of the property shall be mortgaged or pledged. The charter provision is to the same effect. There is also in this paragraph the direction that when the income of the institution shall be insufficient to pay expenses, the same shall be reduced in proportion, "and if the Institute is in need of more income, let it appeal to the Loomis Family. . . . No debt whatever shall be incurred." The provision just mentioned is, of course, only hortatory, and in effect advice to conduct the affairs of the school on a cash basis. It contains no implication of a trust. What remains of the paragraph under discussion is this provision: "That not more than one third of the funds of the Institute, shall be at any time invested in the grounds, buildings and outfit of the Institute, the other two thirds, shall be kept invested to produce the income necessary for the support of the Institute." The defendant claims that the words just quoted constitute an imperative trust, and cut down the absolute estate given to the plaintiff in a prior paragraph of the will, to the extent and in the way indicated by the words used; and further, that said words apply to and control the disposition and management of the entire property of the corporation.

From a reading of the will and codicils of John Mason Loomis in connection with the charter of the corporation, it is very evident that the founding of the Loomis Institute and its subsequent operation was a matter very near to the testator's heart. He had agreed with his brothers and sister that all of them should devote the residue of their several estates for that object. All of them were created trustees of the corporation by its original charter. All of them had made wills in which the Institute had been constituted residuary legatee, without trust or condition except that in one instance there was a testamentary condition that the corporation should keep in good order the family burying-ground. Before his death at least, and presumably much before, he was familiar with the provisions of the wills of these relatives, as he took beneficially under all of them, and all of them predeceased him, and his three brothers had all died before John Mason Loomis executed his will. His sister died in 1898. In the year 1893, just after the testator executed his will and first codicil, an amendment of the charter was procured, presumably upon the initiative of the then trustees of the corporation of which he was a trustee. At the time he made his will he and his sister were the only survivors of the original Loomis trustees. In a way he stood as the leading representative of the family at the time he executed his will, and a successful career for the Institute in the future must have been much in his mind. His nearest relatives were evidently cousins, and to some of them if not to all he gives legacies, not large considering the amount of his estate. There is no reason to suppose that he had these persons, and any others who might answer to the description of legal representatives in case of intestacy, particularly in mind as possible objects to his bounty. If his real desire was to raise a trust with respect to the proportion of funds to be devoted to buildings and outfit on the one hand, and to productive investment on the other hand, he must have known that should this trust never become effective, either because the corporation could not legally accept the gift or trust, or in its discretion did not deem it wise by acceptance to fetter its future action in the management of the Institute, then the bulk of his large estate would go to these cousins and perhaps other representatives. If he did know this, it is hardly to be believed that he would try to effectuate his restrictive intent by words mingled with other clauses purely advisory and hortatory. His desire that the Institute should not fail to receive all his property, is evinced by a provision in the first codicil to the effect that if there should be any danger of failure or lapse of the portion of his estate given to the Institute by reason of its incapacity to take real estate, then the Institute should take no interest therein, but that his realty should be sold and the proceeds of sale paid over to the corporation. This second codicil was evidently made for the purpose of picking up loose stitches and of rendering the provisions of his will entirely clear. The testator lived seven years after the making of the first codicil in 1893, and in 1899 made another codicil in which he modified a power given in his will to his wife to use a part of the principal of his estate. All of the testator's brothers had died before the making of his will and codicils, and he knew that they had each given the residue of their estates to the Institute unreservedly (except as to the trifling exception above noted) and without hamper of trust or condition. He himself states in his will that the Loomis brothers and sister had made a family compact to devote the bulk of their several estates to the foundation of this institution, so that it would appear that he did not intend seriously to modify the plan agreed on and subject not only his own property, but perhaps that given by the others, to restrictions not in the purview of the original family compact nor in accordance with the broad and liberal provisions of the charter which they had all united in procuring. Taking all of the wills and the charter into consideration, it seems altogether probable that John Mason Loomis intended no variation from the scheme which in the wills of the other members of the family produced unrestricted gifts in fee, that he understood and respected the views of those who had predeceased him, and that any variation from the tenor of the other family wills evinced no intention to place any restriction upon the gift, absolute in form, contained in his will. He was a man of large means and evidently considered his opinion upon any question of management of property as valuable, and did not hesitate in offering liberal advice to the management of the Institute. Except for the words giving rise to the controversy in the present case, everything in the part of the will quoted in the statement of facts as above set forth, is in the nature of explanation of motive, or of emphasis on provisions already existing in the charter. All of the clause in which occur these words whose meaning is in question in the instant case, follows the initial words, "My Will is." The testator "willed" in that clause as to some things already contained in the charter, added some wholesome observations about keeping out of debt, recommended further appeal to the Loomis family for funds if more were needed, and spoke of the ratio between the cost of land and outfit and the amount of productive investments. All of this is in one paragraph, and all is comprehended in the designation by the testator as to what his will was. He did not need to have any "will" as to matters contained in the charter, nor in recommending a pay-as-you-go administration of the corporation's finances. The fair conclusion would seem to be, that the use of the word "will" had no deeper or more formal significance as to the controverted words, than as to those regarding other matters touched on in the paragraph. We think the most reasonable interpretation to be that here, as elsewhere, in the portion of the will now under consideration, the testator is calling attention to what he deems the most essential features of the charter, commenting thereon, and making recommendations of an advisory, but not imperative character. It is of this part of the will which he speaks in the codicil, and the matters included therein are designated by him as essential. Supposing he had prefaced all his explanatory and hortatory matter which we have just been considering, including the clause in controversy, with the words "I deem it essential," — could it be seriously contended that any trust was raised or intended as to any of the matters of which he speaks? The word "essential" carries with it no connotation of restriction or of an imperative trust: it is at the most indicative of an emphatic recommendation.

Having thus far laid out of view all consideration of the words used by the testator as having any technical sense, and arrived at the conclusion that no imperative trust has been created by the precatory expressions of the testator, we have now to conclude whether any of the rules of construction compel a modification of the result just stated. We placed at the beginning of our review of the wording of the will, a statement that the intent of any testator in the use of precatory words in order to raise a trust must appear to be as complete, settled and sure, as though a trust were declared by use of the ordinary and artificial words ordinarily used to effectuate such a purpose; and also stated a further rule that a gift in fee simple clearly and decisively made in one clause of a will cannot be cut down by subsequent words less clear and decisive of later occurrence in the instrument. It seems clear that our conclusion just stated legitimately follows from the application of the rules which we have before stated and now recall. It remains to be considered whether the application of any other recognized canons of interpretation subsidiary and less important, but still frequently of value, would lead to any modification of the result at which we have thus far arrived.

It is the claim of the defendant that the word "will" used in the clause under consideration, is capable of but one significance: that it is a term of art and its use always contemplates an absolute direction. A vast number of cases could be collected in which the words "will," "wish," "desire," and other words, have been held to create trusts, and probably as many where this result has not occurred. These words have no invariable construction. To cite and then attempt to distinguish these cases would in no way be helpful. In general, each will must stand by itself, and we have held that precedents are entitled to but little weight in the construction of wills, where the cases are not precisely analogous. Lyon v. Acker, 33 Conn. 222. "The mode of dealing with one man's blunder is no guide as to the mode of dealing with another man's blunder." Gray, The Nature and Sources of the Law, § 701. Cases may be cited in abundance as to the construction of such words as "will," "wish," "desire," and others, as either precatory or imperative. It is claimed by the defendant that the word "will" carries with its use an invariably imperative meaning by consensus of authority. Some countenance is given to this claim by a recent text-writer (2 Alexander, Commentaries on Wills, § 1103), who lays down the doctrine that the word "will" in testamentary instruments has universally received a mandatory signification. None of the cases cited by the author bears out this statement. In only one (McRee's Admrs. v. Means,34 Ala. 349, 367) was the point directly made, and the opinion contains this qualification: "While the word ``will,' per se, has an imperative force, we do not doubt [but] that its meaning may be controlled by the context, and that other parts of the will might be such as to require a different understanding of it." We fail to find any authorities, other than those just referred to, which can be in any way claimed to hold the word "will" to be in all cases imperative. The following take a contrary view, and in each of them the word "will" is held to be merely precatory: Hume v. McHaffie,40 Ind. App. 703, 81 N.E. 117; Lines v. Darden,5 Fla. 51, 71, 73; Pratt v. Trustees of Sheppard andEnoch Pratt Hospital, 88 Md. 610, 42 A. 51. The case last cited not only holds as above stated, but the opinion is an exhaustive exposition of the law of precatory trusts as applied to gifts to a charitable corporation. The facts in the case raised the question of attempted control of corporate expenditures by provisions following an absolute gift, and the question presented for solution was quite similar to that existing in the case before us.

The plaintiff claims that there attaches to the provision under discussion such uncertainty as precludes the conclusion that an imperative trust is established. The well-recognized distinction between an uncertainty where the intent to establish a trust is clear but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust, should be borne in mind. In the former case the gift fails, in the latter case the legatee takes the property given for his own use free from any restriction. There is no claim by either party in the present controversy that a trust has been created in the will of John Mason Loomis which is void for uncertainty, but the plaintiff claims that the will shows no intention to create any trust, while the defendant claims that a definite, valid and workable trust has been created, not affected by any uncertainty. The modern law upon the subject is stated in Perry on Trusts Trustees (Vol. 1, 6th Ed.) § 116, as follows: "Nor will a trust be implied if there is uncertainty as to the property to be subjected to the trust, or as to the persons to be benefited by the trust, or as to the manner in which the property is to be applied." This enunciation of doctrine is abundantly fortified by the authorities cited, and represents the modern English as well as American law. The doctrine is substantially that recognized in Gilbert v. Chapin,19 Conn. 342, and the other Connecticut cases cited heretofore.

The plaintiff claims that there is such an uncertainty both as to the property referred to in the will of John Mason Loomis as "the funds of the Institute," and also as to the manner of administration, the way in which the property is to be applied, as to negative any idea of an intent to create an imperative trust. We think that the words used by the testator do apply with certainty to all of the funds of the plaintiff corporation, a fact fraught with consequences which we shall consider later. On the other hand, we believe that the second claim of the plaintiff in respect to uncertainty touching the application and administration is well founded. In the case of In re Diggles, Gregory v. Edmondson, L. R. 39 Ch. Div. 253, 257, Bowen, L. J., said: "Just as uncertainty of the property and object are reasons for not construing the will as creating a trust, so also the fact that a trust would cause embarrassment and difficulty is a reason for coming to the same conclusion." Such a conclusion, of course, is based upon the assumption that a testator had such probable difficulty in mind, and therefore could not have intended to make his provision other than one of general recommendation and advice, and to leave freedom of action to the trustees in case any contingency should justify a departure from what the testator deemed a good general rule. It is at once evident that if this provision were mandatory and a valid trust had been created, and if the ratio laid down by the testator had been approximately reached, questions would constantly arise such as these: would the value of the buildings, etc., be their cost, their replacement value, or a value arising after deductions for depreciation, or a final writing-off of any buildings which were no longer fitted for economical use, or perhaps had been torn down? Or would the value of securities be their cost, their market value at any given time, or their book value in case a rule of amortization had been carried out? Constant difficulty of administration and application is suggested here, and it is a fair supposition that this fact was appreciated by the testator, and that he never intended a mandatory provision, or supposed that his will created an imperative trust, strict obedience to which could be enforced by appropriate legal procedure. It hardly seems probable that he did not have in mind the possibility of some future gift of realty or of money to be used for the special purpose of erecting buildings, perhaps at some future time much needed. In such a contingency if the testator's views as expressed in the will constitute an imperative trust, it might prevent the acceptance of a gift of money for building purposes highly advantageous to the institution. Since the death of John Mason Loomis, a gift has been specifically made to the corporation for the purpose of erecting buildings, by the will of William H. Loomis, of more than $300,000. If the will created an imperative trust, it became incumbent upon the trustees forthwith to raise twice the amount of this legacy, by application (as the testator suggests) to the Loomis family or some other bountiful source of supply, or else to decline a gift which, by the provisions of its charter, the corporation may legally receive.

A perusal of the extracts from the charter of the corporation given in the statement of facts, shows, on the one hand, that the trustees are directed to adopt a definite plan for buildings and development of land, looking considerably into the future, and, on the other hand, that a distinctly liberal discretion is given the trustees in the formulation and execution of such a plan. Section 5 of the charter as amended, provides that after the original buildings have been completed and furnished according to the plans above referred to, then the trustees are to invest the remaining available funds to remain a perpetual fund and to use the income therefrom in defraying current expenses and purchase of equipment, and also in the erection of new buildings. Keeping in mind that by the terms of the charter, buildings can be erected when the sum of $200,000 is available for use, and placing this fact alongside the provision of the will relating to the ratio of building cost to available funds, we may readily see that a very vexatious limitation is placed upon the trustees, and one very probably not contemplated by the charter. When the amount of funds in hand reached the sum of $200,000 they might build and equip a building or buildings, lay out the grounds and undertake other needed developments, but only to the extent of less than $67,000, notwithstanding further funds were in sight and sure to be received at a not distant time. It is difficult to believe that the testator contemplated such a situation, or intended to create it by the words he used.

There is another well-recognized rule of construction, to the effect that no precatory words will create a trust if such "words apply not only to the property given by the testator but to all of the property of the legatee." Theobald on Wills (7th Ed. Canadian) 490. In Lechmere v. Lavie, 2 Myl. K. 197, the testatrix gave by her will property to two unmarried daughters, and if they married divided the gift among all her children, and in a codicil added the provision that if the daughters died single, "of course they will leave what they have amongst their brothers and sisters, or their children." The court held that no obligation or trust was created by these words, as they applied not only to the property bequeathed but to all property possessed by her daughters at their death, from whatever source derived. Similar testamentary provisions were made in Eade v. Eade, 5 Maddock's Ch. 118, andParnall v. Parnall, L. R. 9 Ch. Div. 96, and in each case the court held that no trust was created. The cases above cited are quoted with approval in numerous American cases. It would seem that if one wishes to not only restrict by way of trust the disposition of any bequest he may make, but also to affect in a like way other property, he cannot do so by precatory words, however emphatic. Apparently such a disposition can only be made by a trust expressly set up and covering specifically the object intended by a testator, or by a gift upon condition subsequent.

As a result of the above discussion we conclude that the provision in the will of John Mason Loomis, as to the construction of which advice has been sought, is simply precatory and does not establish a trust, and that the plaintiff takes the legacy given in his will absolutely and without restriction.

The answer to question (a) of the reservation is that the provision in question is not mandatory, but merely the expression of a wish. Question (b) is answered "No." Question (c) is answered "Yes." These answers make any answers to the remaining questions unnecessary. The Superior Court is so advised.

Both plaintiff and defendant in this action have in brief and argument discussed the question as to whether the provision under examination may not be considered as a legacy upon condition subsequent. If it should be held that the provision should be so construed, there would be, in the first place, a question of fact as to its breach, and if the condition had been broken, a forfeiture in favor of the heirs at law and next of kin of the testator. Our advice on this point has not been asked by any of the questions propounded, and furthermore this point cannot be conclusively answered, except as arising in an action to which the legal representatives of the testator are parties.

In this opinion BEACH, CURTIS and BURPEE, JS., concurred.