Tilton v. Society , 60 N.H. 377 ( 1880 )

There is no patent ambiguity. If there had been but one Bible society, the bequest to "the Bible Society" would not have been void for uncertainty. The will would not have made it doubtful what Bible society the testator meant. Extraneous evidence disproving the existence of more than one such society would have had the same effect as similar evidence in relation to an individual described in the will, by name or otherwise, as a legatee. The existence of more than one Bible society presents a latent ambiguity. The question is not whether a plea of misnomer of a party is sustained by proof, nor whether there is a variance between the evidence and the name of a third person set forth in pleading. The question is not by what name any Bible society was known to others, but which one of several Bible societies was intended by the testator. The testamentary name, or other testamentary description of a legatee (whether an individual or a society, incorporated or unincorporated), is evidence of the testator's intention. Evidence showing what name was given to a Bible society in its charter, what name it used or recognized as its own, and by what name or names it was known to others, tends to prove a name by which the legatee might have been known to the testator, and a name which he might have used in his will to express his intention. But the society intended by him, and identified by competent evidence, is the legatee, by whatever name described in the will, and notwithstanding any other name or names by which it may have been invariably or usually known to others. The New Hampshire Bible Society being pointed out by such terms in the will as he would be likely to use in describing that society, being the one he would probably mean when he spoke of "the Bible Society," and being found, upon competent evidence, to be the society intended by him, the law does not withhold the legacy from the donee intended by him, and does not give it to those who he meant should not have it. A person known to a testator as A B, and to all others as C D, may take a legacy given to A B.

Samuel may take a legacy given to Edward, the testator having been in the habit of calling him Edward. Parsons v. Parsons, Ves., Jr., 266. A bequest was made to "Robert Careless, my nephew." The testator had two nephews of that name. With one of them he was intimately acquainted; the other was very little known to him, and it was uncertain whether he knew that the Christian name of the latter was Robert. The presumption was in favor of the former. Careless v. Careless, 19 Ves., 601, 505. If a man has two sons, both baptized by the name of John, and conceiving that the elder (who has been long absent) is dead, devises land to his son John, and in truth the elder is living, the ambiguity may be resolved in favor of the younger, by evidence that the testator thought the elder was dead. Lord Cheyney's Case, 5 Rep. 68. In American Tract Society v. De Witt, 9 Allen 447, 451, the American Tract Society was a legatee. There were two societies of that name, one incorporated in New York, and the other in Massachusetts. There was evidence tending to prove that the Massachusetts society was incorporated many years before the other, had held public anniversary meetings, maintained a place of business in Boston, and constantly solicited and received contributions in the churches and from individuals throughout the larger part of Massachusetts, and in other New England states. The testator was a citizen of Massachusetts, residing there at the time of his death, and there was evidence tending to prove he was aware of the existence of that society and had contributed to its funds. The court inferred he intended his bequest for the domestic corporation, and not for the foreign one, of whose existence there was no certain evidence that he had any knowledge. If it had been certain that he had no knowledge of any other tract society than the one chartered in Massachusetts, his intention would have been as clear as in a bequest to his son John when he had two living sons of that name, one of whom he believed to be dead.

In this case, if, of several Bible societies, only one had been known to the testator, his knowledge and want of knowledge on that subject would have been as conclusive evidence of his intention as the existence of no more than one. And as a bequest to A B may be presumed to have been intended for a person of that name with whom the testator lived on intimate terms, rather than for a person of the same name who was but little known to him, so it may be inferred that this testator meant the Bible society for which contributions were regularly solicited in, and with the license and approval of, the religious associations of which he was a member, rather than any other Bible society not thus commended to him as a preferred object of the charity of his church, not specially brought to his consideration, and not shown to have been within his knowledge. In like manner a latent ambiguity as to other legatees may be explained. If there were but one Foreign Mission society, one Home Mission society, and one Tract society, they would have been the ones intended by the testator. If there were more than one of either kind, the one intended by him might be identified by extraneous evidence. Bartlett v. Remington, 59 N.H. 364.

There was a custom of contribution in other Congregational churches than that at Littleton, of which the testator was a member. Whether it was too remote in place to justify an inference that it had come to his knowledge, was a question of fact to be determined at the trial term. State v. Railroad, 58 N.H. 410; Amoskeag Co. v. Head, 59 N.H. 332, 837.

The executors were fiduciary representatives, holding the estate in trust, and bound to exercise reasonable and impartial care in protecting the rights of all the legatees. For many years they knew that the societies were not aware of the bequests made to them; and it was their duty to give the societies the information which was manifestly needed, and without which the third item of the will could not be executed. It was their duty to pay the legacies, or bring this bill without delay. Their obligation was to promptly execute the entire will of which they were executors, and not to defeat the third item by inaction. They were protected against an unnecessary and oppressive suit brought for a legacy, without such a demand as would give them a reasonable opportunity to perform their duty of payment. But this protection did not authorize them to sacrifice the lights of a legatee by such silence as would prevent a demand being made. By such silence they could not transfer the income of the trust fund from its equitable owners to others who had no title to it.

The societies intended by the testator are entitled to the legacies and the interest, which they claim. On what ground the other legatees are entitled to one year's income of the legacies given to the societies and held in trust by the executors for the societies, and on what ground the other legatees are entitled to any excess of subsequent income produced by the property of the societies above the interest which is claimed (if there was any such excess), are questions not raised by either party.

Case discharged.

STANLEY, J., did not sit: the others concurred.