Hornbeck's v. American Bible Society , 2 Sand. Ch. 133 ( 1844 )

The Assistant Vice-Chancellor.

As the case is presented by the bill, the fund is to be deemed personal property of the testatrix.

There is nothing in the point that the unincorporated societies are incapable of receiving the bequests to them. (Potter v. Chapin, 6 Paige’s R. 639, 649; Wright v. Methodist Church, 1 Hoff. Ch. Rep. 202; King v. Woodhull, 3 Edw. Ch. R. 79.)

The principal questions arise upon the seventh clause of the will, which is in these words : “ The residue and remainder of my estate after the payment of all my just debts, I give and bequeath to the treasurers of the following societies—Am. Bible, Tract, Synods Board of Missions, Domestic Missions, N. Y. Colonization, and Seaman’s Friend.”

1. The American Bible Society claims the bequest under the description of “ Am. Bible” Society in the will.

The description in this instance is perfect, except that Am. is written instead of American. This is a common abbreviation for American, and in the absence of any institution of the kind of a similar name, there can he no doubt but this corporation was the one intended.

2. The legacy to “ Tract Society,” is claimed by the American Tract Society. There are two other tract socities in the city of New "Y ork—The New York City Tract Society, and The Protestant Episcopal Tract Society. The latter institution disclaims, and the former now concedes the legacy to the American Tract Society.

The word “ Tract,” of itself furnishes no designation. But it is competent to make out by averment, who is the person intended by a defective description.

In this instance, the prefix “Am.” may be extended to aid the construction, and it then becomes the American Tract Society, and all doubt is at an end.

Moreover the American Tract Society is a corporation whose purposes and operations extend throughout the country. The' testatrix and her late husband were members of it; her husband had left a legacy to it, which she had paid as his executrix. Under such circumstances there is not a particle of doubt but that this bequest was intended for the American Tract Society.

3. The New York State Colonization Society, an unincorporated association, claims the legacy given to the “ N. Y. Colonization Society.” It appears that this is the only colonization society in this state. The only omission in the will, is the word “ State” in describing it, and the identity is too clear to need any argument.

4. The legacy to “ Seaman’s Friend Society,” is claimed by The American Seaman’s Friend Society, a corporate institution. In this instance the prefix “ Am.” is too far removed in the will to aid in the construction. It is shown however, that the claimants are the only Seaman’s Friend Society in this state; and that they had been the special objects of the benevolence of the testatrix and of her husband when they were alive ; her husband left a legacy to the society, which she transmitted to them; she corresponded with the treasurer of the society, and her letter produced shows that she felt a warm interest in the objects of the charity which the society is engaged in promoting.

She unquestionably intended the bequest for The American Seaman’s Friend Society.

5. The General Synod of the Reformed Protestant Dutch Church, claim the other two legacies in the seventh clause of the will; and also the legacy in the sixth clause, which is in these words. “ Sixth. To the Theological Seminary at New Brunswick, under the charge of the Protestant Reformed Dutch Church, I give and bequeath the sum of four thousand dollars to be secured by good bond and mortgage, and the interest of said sum to be applied in educating pious and indigent young men for the gospel ministry.”

First. The bequest to the seminary is a good bequest by way of charitable use to the Synod of the Dutch Church. The claimants are a corporation, and amongst other eleemosynary institutions established by them, is this seminary at New Brunswick. The gift is like one to endow a professorship in a college. The charity is the object present to the testator’s mind; the corporate or associate name of the society which executes the charity, is not so likely to be thought of, or if thought of, to be correctly stated. Here the charitable object is described, and the income appropriated. The intention was to give it for the seminary. It being given to the seminary, which is only a mere descriptive name of a part of the corporate institution, The Synod of the Dutch Church ; it would be doing great violence to the testatrix’s intention to say that she did not mean to give it to that 'synod, for the use of the seminary. It is in effect a bequest to the Protestant Reformed Dutch Church for the seminary under their charge, and the claimants are clearly entitled to it. A similar gift was sustained for the Methodist Church in John-street, in favor of the general corporation of that church in Wright v. Methodist Epis. Church, 1 Hoff. Ch. R. 202, 238.

Next, the legacies to the Synods Board of Missions, and to Domestic Missions.

The Synod of the Dutch Church has established boards of managers for conducting their foreign and domestic missionary operations, which boards act as separate boards or committees, and are agents of the corporations, and they are together designated as the “ Synod’s Boards of Missions.” The operations of the foreign and domestic missions are distinct, and separate reports are made of each to the Synod, and in the ordinary language of the members of the Dutch Church, the boards are, spoken of and known as the Synod’s Board of Foreign Missions and the Synod’s Board of Domestic Missions, respectively.

In regard to the bequest to the Synod's Board of Missions, there is no room for doubt. What I have said in reference to the legacy to the seminary is applicable to this also. Then as to the legacy to “ Domestic Missions.” The Board of Missions of the Protestant Episcopal Church, which is the only institution of a similar name, disclaims the legacy. It is not a case of competition therefore, but merely a defective description of a legatee to charitable uses; the testatrix having used the name of the object of her benevolence, instead of that of the institution which was to perform the object. The gift is in terms to the Treasurer of Domestic Missions.

She had previously manifested her feeling of special regard for the institutions of the Synod of the Dutch Church by the gift to the seminary and to the Board of Missions, and in immediate sequence with the latter, she gives this legacy to domestic missions. There being no other body of a similar name conducting domestic missions, the juxta-position of the bequests, and this feeling of partiality for the synod which I have mentioned, lead me to the conclusion that she intended the legacy in question for the Synod’s Board of Domestic Missions, while the other was designed for their foreign missions. The word Treasurer which goes before all the legacies in the seventh clause, avoids, the objection that “ Domestic Missions” is too vague of itself. The extrinsic circumstances concur with the contents of the will, in showing that the testatrix meant the Synod’s Board of Domestic Missions, or the Treasurer of that Board ; and the board and their treasurer being parts of the organization of the corporation which claims the legacy, the conclusion is that it was intended for that corporation, to be used in domestic missions, under their charge and direction.

There are many reported cases in which the extrinsic evidence relied upon was as much, or more open to doubt than it is here. I will only refer to Beaumont v. Fell, 2 P. Will. 140 ; where a legacy to Catherine Earnley was decreed to Gertrude Yardley; Abbot v. Massie, 3 Ves. 148; where the legacy was to “ Airs. Cr.,” and it was given to “ Mrs. Gregg” on proof of intent ; also Careless v. Careless, 1 Merivale, 383, (291;) where the legacy was to the testator’s nephew Robert, the son of Joseph Careless; the testator had no brother Joseph, but he had a brother John and a brother Thomas, and each had a son Robert; and on the proof, the legacy was adjudged to Robert the son of John Careless. And see Parsons v. Parsons, 1 Ves. Jr. 266 ; Baugh v. Read, 1 ibid. 259, per Lord Eldon ; Smith v. Coney, 6 ibid. 42; and Mann v. Executors of Mann, 1 J. C. R. 234, per Chancellor Kent.

All the legacies in question are sustained in favor of the respective claimants, and there must be a decree declaring the construction of the will accordingly. The costs of the parties will be paid out of the estate.