Goodale v. Mooney , 60 N.H. 528 ( 1881 )

1. The intention of the testator, by the residuary clause in his will, was to create a trust in the plaintiffs. His language is, "I place the remainder of my property in the hands of my executors to be distributed," c. His intention, distinctly announced, is, that the remainder of his estate entrusted to them shall be distributed for certain declared purposes. Erickson v. Willard, 1 N.H. 217; 1 Per. Tr., ss. 112-123; 1 Jar. Wills 385-408.

2. Is the trust sufficiently definite to be carried into effect? The rule for determining whether the words of a will create a trust or not is, — first, the words must be imperative; second, the subject must be certain; and thirdly, the object must be as certain as the subject. Wright v. Atkyns, 1 T. R. 157; Wood v. Cox, 2 Myl. Cr. 684; Pope v. Pope, 10 Sim. 1; Knight v. Knight, 3 Beav. 148; 1 Per. Tr., s. 114, n. In this case these conditions are complied with. The words are imperative. The testator places his property in the hands of his executors with directions to distribute the same. The subject is the remainder of his estate, and is certain. The object, so far as his relatives are made the distributees, is certain.

3. But the principal question is, whether the devise in trust "for benevolent objects" creates a trust for charitable uses. Is the word "benevolent," as used in the residuary clause of the will, synonymous with "charitable"? These words are classed as synonymous, but do not always express the same meaning. Many charitable institutions may properly be called benevolent, but every object of benevolence is not an object of charity. James v. Allen, 3 Mer. 17. It has been held that the word "benevolent" of itself, without anything in the context to qualify or restrict its ordinary meaning, cannot be deemed charitable in the technical and legal sense (Chamberlain v. Stearns, 111 Mass. 267); but it is not necessary to inquire what the law on that point is in this state.

The statute 43 Eliz., c. 4 (A.D. 1601), contains an enumeration of charitable objects, all of which have since been considered charitable: also many other uses not named within the strict letter of the statute, but which come within its spirit. 2 Per. Tr., s. 692. It is said that no bequests are deemed within the authority of chancery, and capable of being established and regulated by a court of chancery, except bequests for those purposes which the statute enumerates as charitable, or which by analogy come within its spirit and intendment. 2 Sto. Eq. Jur., s. 1155. Whether this statute has ever been adopted in this state has not been judicially determined, and for the purposes of this case it is not important to inquire, for courts of equity have original and inherent jurisdiction over charities, independent of the statute. 2 Per. Tr., s. 694, and authorities cited. "A trust, to be valid, must be under the control of a court, and the trust must be of such a nature that its administration can be reviewed. A trust for charity must, therefore, be governed by some principles that are familiar to the court. These principles have grown up in relation to the words `charity' and a `charitable use,' and to descriptions that come within them: but there are no rules that can be applied to mere benevolence, liberality, or generosity, or to any words that give a discretion and power to the trustees to apply the funds to any purposes within the whole range of human action." 2 Per. Tr., s. 711. Whether a more liberal rule prevails in this state we need now inquire.

In the case of a charitable gift above all others, it is often said the construction should be such as will preserve rather than destroy the gift. Saltonstall v. Sanders, 11 Allen 446, 455; Whicker v. Hume, 7 H.L. Cas. 154. In many of the cases the word "benevolent" has been coupled with "charitable" or some equivalent word, or has been mentioned in connection with such public institutions as to show an intent to make it synonymous with charitable. Saltonstall v. Sanders, 11 Allen 446; Roch v. Emerson,105 Mass. 431; Hill v. Burns, 2 Wils. Sh. 80; Crichton v. Grierson, 3 Bligh. N.R. 424 — S.C., 3 Wils. Sh. 329; Ewen v. Bannerman, 2 Dow. C. 74 — S.C., 4 Wils. Sh. 346; Miller v. Rowan, 5 Cl. F. 99 — S.C., 2 Shaw McL. 866; 2 Per. Tr., s. 711 et seq.; 1 Jar. Wills 211-215. In other cases, where a bequest for "benevolent" purposes contained no qualifying or explanatory words, the bequest has been held void for uncertainty. James v. Allen, 3 Mer. 17; Morice v. Bishop of Durham, 9 Ves. 399 — S.C., 10 Ves. 522; Attorney-General v. Haberdashers' Co. 1 Myl. K. 420; Nash v. Morley, 5 Beav. 177; Chamberlain v. Stearns, 111 Mass. 267. The decisions go upon the ground that the testator intended the word "benevolent" to be understood according to the technical construction which had been put upon it by the courts. But in many of the recent English cases a more reasonable construction in regard to technical language has been adopted. In Jenkins v. Hughes, 8 H.L. Cas. 571, the court said words of a technical kind are not necessarily to receive a technical meaning. In Young v. Robertson, 4 Macq. H.L. Cas. 314, 325, it was said the primary duty of a court, in the interpretation of wills, is to give each word employed, if it can with propriety receive it, the natural and ordinary meaning which it has in the vocabulary of ordinary life, and not to give words employed in that vocabulary an artificial, secondary, or technical meaning. In Hall v. Warren, 9 H.L. Cas. 420, it is laid down that in construing the autograph will of an illiterate man the meaning of technical language may be disregarded; but no word which has a clear and definite operation can be struck out. Judge Redfield, in commenting upon these cases, says they "evince a determination not to allow technical rule. of construction to overbear and break down all the better instincts and involuntary sentiments of common-sense, and the common experience of mankind, even in the construction of wills and we hail the omen with no slight gratification." 1 Red. Wills (ed. 1864) 429, n.; Perkins v. Mathes, 49 N.H. 107, 110; Trustees v. Peaslee, 15 N.H. 319; Tilton v. Tilton, 32 N.H. 263; Goodhue v. Clark,37 N.H. 525; Mathes v. Smart, 51 N.H. 438, 440; 1 Red. Wills 426, 442; Stokes v. Salomons, 9 Hare 75; Hart v. Tulk, 2 De G.M. G. 311.

We are very much inclined to doubt whether the construing of a will according to technical rules does not result quite as often in defeating as in promoting the testator's intent. In this state the intention of the parties to a written instrument is determined, not by any technical rules of construction, but like a question of fact, by the weight of competent evidence. No technical rules of construction applicable to all cases can be established. The intention in each case is determined by the evidence bearing on the case Cole v. Lake Co., 54 N.H. 242; Rice v. Society,56 N.H. 191, 197; Houghton v. Pattee, 58 N.H. 326; Morse v. Morse,58 N.H. 391; Brown v. Bartlett, 58 N.H. 511; Wilkins v. Ordway, 59 N.H. 378.

In this case, there is nothing in the thirty-fourth clause of the will which indicates that the testator did not intend by the word "benevolent," objects which are technically known as "charitable." The clause reads, — "I place the remainder of my property in the hands of my executors, to be distributed by them after my decease among my relatives, and for benevolent objects, in such sums as in their judgment shall be for the best. In case the first named executor, John H. Goodale, shall find himself in need of means, he can take from the residue above named the sum of three thousand dollars." It may be said that it is quite probable the testator did not know there is any legal difference between the words "charitable" and "benevolent." Most persons probably use the words indifferently, and as meaning the same thing. If it had occurred to the testator to look in the dictionary, he would have found the words classed as synonymous. (See Web. Dic., "charitable," "charity.") In its popular sense, by a benevolent person is understood one who emphasizes his good wishes by well doing.

Looking to the testator's circumstances and the rest of the will for light, it appears that he died leaving no lineal heirs or widow; that he devised to various charitable and religious institutions, and to many of his heirs at law, and to heirs of his deceased wife, legacies in money to the amount of $38,200; also, that he made specific legacies of personal property, and specifically devised his real estate. The amount to be distributed under the clause in question is about $25,000. In disposing of this estate, amounting probably to $75,000, the disposition made of his estate in other parts of his will furnishes some evidence of what was his intent in the residuary clause. He bequeathed to the Tilton and Northfield Congregational Society $1,000; to the New Hampshire Home Missionary Society $2,000; to the New Hampshire Bible Society $500; to the Foreign Missionary Society $500; to the New Hampshire Ministers' Widows' Society $1,000; to the New Hampshire Conference Seminary at Tilton $500 — total, $5,500; all of which must be regarded as charitable objects. The balance of the sum of $38,200 is bequeathed mostly to relatives by blood or marriage. Some small sums, in the aggregate not large, are given to persons not denominated in the will as relatives, — as, for example, $300 to Mrs. Ruth Cox, of Holderness, a woman then upwards of one hundred years of age, the apparent object of the bequest being for her relief and comfort in her extreme old age, and hence within the line of charitable gifts. His intent as thus disclosed appears to have been to distribute his property to his relatives and for charitable objects; and we think it is a fair construction of the residuary clause, to hold that the trustees might distribute the remainder of his estate to such relatives within the statute of distributions (Varrel v. Wendell, 20 N.H. 431) as are needy, and to such charitable objects as he gave specific legacies to. The use of the word "relatives" excludes all others as individuals. In authorizing his executors to dispose of the remainder to the distributees in such sums as in their judgment shall be best, he evidently had in view the necessities of his relatives, as well as the comparative claims for benevolent support of charitable institutions. The coupling of the provision in the same clause, that his son-in-law might take $3,000 of the residue in case of need, gives additional strength to this construction. The use of the conjunction "and" in the clause "among my relatives and for benevolent objects," shows that the testator did not intend to give this large sum wholly to his relatives, nor wholly to charitable institutions, but to both objects in such sums as the executors should judge best.

On the question whether a bequest for a benevolent purpose, not charitable in the technical sense, would be void, we express no opinion.

4. The question whether parol evidence is admissible for any purpose in giving construction to the will, will be considered when such evidence is produced.

Case discharged.

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