Wheeler v. Smith , 13 L. Ed. 44 ( 1850 )

50 U.S. 55 (1850) 9 How. 55

WILLIAM WHEELER, APPELLANT,
v.
HUGH SMITH AND PHINEAS JANNEY, EXECUTORS OF CHARLES BENNETT, DECEASED, AND SURVIVING TRUSTEES UNDER HIS WILL, AND MOLLY E. TAYLOR, EXECUTRIX, AND HENRY DAINGERFIELD AND PHINEAS JANNEY, EXECUTORS OF ROBERT I. TAYLOR, DECEASED, WHO WAS AN EXECUTOR AND TRUSTEE UNDER THE SAME WILL, HUGH C. SMITH, EXECUTOR OF THE SAME CHARLES BENNETT, AND THE COMMON COUNCIL OF ALEXANDRIA, DEFENDANTS.

Supreme Court of United States.

It was argued by Mr. James M. Mason and Mr. Cooke, for the appellant, and Mr. Davis and Mr. Coxe, for the appellees.

Mr. Mason contended, &mdash.

Mr. Justice McLEAN delivered the opinion of the court.

This controversy arises under the last will and testament of Charles Bennett, late of Alexandria. After making a number of specific bequests, the testator declares, — "The residue of my estate is left in trust of Hugh Smith, Robert I. Taylor, and Phineas Janney, for such purposes as they consider promises to to be most beneficial to the town and trade of Alexandria. If any difficulty occurs in construction as to any of my bequests, R.I. Taylor is especially charged to give said construction." Smith, Taylor, and Janney were appointed executors.

In a codicil the testator declares, — "Now in the inclosure I leave the residue of my estate, after paying all bequests and appropriations, to some disposition thereof which my executors may consider as promising most to benefit the town and trade of Alexandria. Now I leave the same entirely to their disposition of it, in such manner as appears to them promises to yield the greatest good."

The complainant, William Wheeler, is next of kin and heir at law to the testator. He filed his bill to set aside the above devise, and also the compromise he made with the executors, under the impression that the devise was valid.

On reading the above residuary disposition of his estate, we cannot but observe the fact, that the testator had no settled purpose as to the mode of applying his bequest to "benefit the town and trade of Alexandria." The town and trade of any commercial city are closely connected, and whatever shall benefit the one will advance the interest of the other. These interests are inseparably blended; but they were treated by the testator as distinct objects of his solicitude and bounty. Perhaps no matter could give rise to a greater diversity of opinion, than that which is involved in this devise. Shall the objects of the testator be most advanced by extending the lines of internal communication connected with the town, such as turnpike roads, railroads, or canals; or by improving and extending the wharves and warehouses of the city; or by deepening the harbor and removing obstructions to navigation; or by loaning the capital to men engaged in commerce; or by aiding some other enterprise beneficial to the trade and town? Shall the bounty be limited to our own citizens, if foreigners shall do more than they, to carry out the expressed objects of the testator?

Under this devise, how can a court of chancery correct an abuse of the trust? By what means shall it ascertain the misapplication of the fund? There is nothing to restrain the discretion of the trustees, or to guide the judgment of the court. If the trust can be administered, it must be administered at the will of the trustees, substantially free from all legal obligation.

But before we pronounce on the character of this trust, it is important to know by what law it is governed. Is the common law of England in relation to charities, as modified and enlarged by the statute of the 43d of Elizabeth, in force in Virginia? Charities have been administered, both at common law and in chancery, from an early period of English jurisprudence. But the earlier decisions in that country are often inconsistent, and of no great weight of authority. The prerogative of the king was invoked as parens patriœ where the charity was indefinite, and a most liberal construction was given to the act of the 43d of Elizabeth; and under these influences a system has grown up in England favorable to the policy of charitable bequests. So far has this policy been carried, that where the devise has been uncertain or impracticable, it has been sustained in some instances by what was supposed to be the intent of the testator, or by approaching as near to it as practicable.

It would seem form the preamble to the statute of Elizabeth, that its object was mainly to institute a remedy where the charitable intent of the founders had not been carried out, by reason of frauds, breaches of trust, and negligence in those that should pay, &c. All the objects specified in that statute are denominated charities, though they embrace "the repairing of bridges, ports, havens, causeways, churches, sea-banks, highways," &c. There are some cases of charity, from their nature, though not specified in the statute.

Whether this policy has been wisely cherished by the English government is not a matter for our consideration. Charitable bequests, from their nature, receive almost universal commendation. But when we look into the history of charities in England, and see the gross abuses which have grown out of their administration, notwithstanding the enlarged powers of the courts, aided by the prerogative of the sovereign and the legislation of Parliament, doubts may be entertained whether they have, upon the whole, advanced the public good.

When this country achieved its independence, the prerogatives of the crown devolved upon the people of the States. And this power still remains with them, except so far as they have delegated a portion of it to the Federal government. The sovereign will is made known to us by legislative enactment. And to this we must look in our judicial action, instead of the prerogatives of the crown. The State, as a sovereign, is the parens patriœ.

The common law, it is said, we brought with us from the mother country, and which we claim as a most valuable heritage. This is admitted, but not to the extent sometimes urged. The common law, in all its diversifies, has not been adopted by any one of the States. In some of them it has been modified by statutes, in others by usage. And from this it appears that what may be the common law of one State is not necessarily the common law of any other. We must ascertain the common law of each State by its general policy, the usages sanctioned by its courts, and its statutes. And there is no subject of judicial action which requires the exercise of this discrimination more than the administration of charities. No branch of jurisprudence is more dependent than this upon the forms and principles of the common law.

In this view, we must look to the laws of Virginia as governing this bequest. Alexandria was ceded to the Union by Virginia in 1801, but the laws of that State, as they then existed, remained in force over the ceded territory. It has since been retroceded to Virginia. By an act of the Virginia Legislature in 1789, followed by one in 1790, a commission was appointed on English statutes, and in the act of 1792 all English statutes then in force were declared to be repealed; "the Legislature reciting that, at that session, it had specially enacted such of them as appeared worthy of adoption." The statute of the 43d of Elizabeth, if it ever was in force in Virginia; was repealed by the above act.

Some of the principles applicable to this case were considered by this court, in the Baptist Association v. Hart's Ex'rs, 4 Wheat. 1. Hart, a citizen of Virginia, made his will, which contained the following bequest: — "Item, what shall remain of my military certificates at the time of my decease, both principal and interest, I give and bequeathe to the Baptist Association that for ordinary meet at Philadelphia annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of my father's family." In that case, the court held that "charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the king as parens patriœ independent of the statute 43d Elizabeth." And it was said the statute of 43d Elizabeth had been repealed in Virginia.

In the case of Gallego's Ex'rs v. The Attorney-General, 3 Leigh, 450, the court held that "the English statute of charitable uses, 43 Elizabeth, having been repealed in Virginia, the courts of chancery have no jurisdiction to decree charities where the objects are indefinite and uncertain."

"If a trust be created in a party, but the terms by which it is created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general funds of the author of the trust." Story's Eq. Jur., § 979, a. "So, where a testatrix bequeathed the residue of her estate to her executors, `upon trust to dispose of the same at such times, and in such manner, and for such uses and purposes, as they shall think fit, it being my will that the distribution thereof shall be left to their discretion,'" it was held to be void for uncertainty. Ibid., § 979, b.

In Wright v. Atkyns, 1 Turn. & Russ. 157, Lord Eldon said, that in order to determine whether a trust of this sort is a trust which a court of equity will interfere with, it is matter of observation, first, that the words should be imperative; secondly, that the subject must be certain; and thirdly, that the object must be as certain as the subject. This principle is also strongly illustrated in the case of Wood v. Cox, 2 Mylne & Craig, 684; 10 Leigh, 147.

In Morice v. The Bishop of Durham, 10 Ves. 521, where a bequest "in trust for such objects of benevolence and liberality as the trustee in his own discretion shall most approve, cannot be supported as a charitable legacy; and is therefore a trust for the next of kin." This was under the statute of 43d Elizabeth. The court said, "The trust must be of such a nature that the administration of it can be reviewed by the court; or if the trustee die, the court itself can execute the trust." And the court remark, in regard to the case before them, "The trustee takes not for his own benefit, but for purposes not sufficiently defined to be controlled and managed by this court."

The case of Vidal v. Girard's Ex'rs, 2 How. 127, was decided under the law of Pennsylvania. The court say, "It has been decided by the Supreme Court of Pennsylvania, that the conservative principles of the statute of Elizabeth have been in force in Pennsylvania by common usage and constitutional recognition."

In a late case in Virginia, not yet reported, of Brand's Adm'r v. Brand et al., the following devise was held to be void: — "Third, I give to the Rev. W.J. Plummer, D.D., the residue of my estate, both real and personal, in trust for the board of publication of the Presbyterian Church in the United States."

From the principles laid down in the above cases, it is clear that the devise under consideration cannot be sustained. A trust is vested in the executors, but the beneficiaries of the trust are uncertain, and the mode of applying the bounty is indefinite. It is argued that the testator intended to give to the town of Alexandria, in its corporate capacity, the residuum of his estate. But he did not so express himself. On the contrary, it clearly appears that the executors were made the repositories of his confidence, and the only persons who were authorized to administer the trust. The cestui que trusts were the town and the trade of the town. It would be difficult to express in more indefinite language the beneficiaries of a trust. How can a court of chancery administer this trust. On what ground can it remove the trustees for an abuse of it. The discretion of the trustees may be exercised without limitation, excepting that the fund must be applied for the benefit of the trade and town of Alexandria. And if the application of the fund be, however remotely, connected with the objects of the trust, the judgment of the court could not be substituted for the discretion of the trustees. It is doubtful whether so vague a bequest could be sustained under the 43d of Elizabeth. Without the application of the doctrine of cy-pres, it could not be carried into effect. In Virginia charitable bequests stand upon the same footing as other trusts, and consequently require the same certainty as to the objects of the trust and the mode of its administration.

But the defendants insist, that the right of the complainant was compromised and finally settled, which is shown by a writing under seal, and under which they paid to him twenty-five thousand dollars. The complainant prays that this agreement may be set aside as inoperative and void.

It appears from the bill, that the complainant resides in the State of Pennsylvania, and that so soon as he could raise the means of paying his expenses, after he heard of the death of his uncle, he came to Alexandria. He had an interview with the executors, and stated to them his determination to test the validity of the will, so soon as he should be able to employ counsel. This was before the probate of the will. Mr. Smith, one of the executors, expressing great kindness for him, was anxious to avoid a lawsuit. He did not fear the result, as the executors had been advised by counsel in whom they had confidence, that the will was valid. He represented the vexations, delays, and expenses of a lawsuit, and intimated to the complainant that the executors were willing to pay a sum of money to him if the matter could be compromised.

It appears that the complainant had been prodigal in his expenditures, and that, notwithstanding the provisions for his support which had been made for him by his uncle, he was without means and embarrassed. When the interview took place which led to the compromise, the complainant again expressed his conviction that the will was not valid, and declared that he should try its validity by legal proceedings. Mr. Taylor, one of the executors, was a distinguished lawyer, a man of high standing, and in whom the complainant reposed the greatest confidence; he represented to the complainant that he had sundry written opinions of counsel in favor of the legal validity of the residuary devise, which he offered to show to him. His conversation conveyed to the complainant "the clear and distinct impression, that there was but one opinion among the lawyers consulted, and that they were unanimous in favor of the validity of the devise." The complainant asked Mr. Taylor to state his opinion on the subject. He observed, that the complainant should not have asked him, but his opinion was, "that the devise in question was a legal and valid disposition of the residue of the estate." At the same time, he admitted that in Pennsylvania such a devise would not be good; but that it was good under the old law of Virginia.

The complainant alleges that he had no settled views of the legal question, and being disheartened by the circumstances under which he was placed, he yielded to the compromise. He had but little time for reflection, and none to advise with counsel; and at last he came to the conclusion to consider the devise valid, and take what he could get for a release.

Under these circumstances, the complainant agreed to the compromise. It stated the residuary devise, and that its validity had been controverted by the complainant. That "the said executors, taking on themselves the burden of the execution of said will, and of the trusts aforesaid, and the said William Wheeler, to avoid the delay and expense of litigation, and finally to settle and adjust all doubts and difficulties which might arise on the effect of said will, so as to leave the said executors to execute the same without delay or impediment, have agreed on the following terms of compromise."

1st. That twenty-five thousand dollars shall be paid to the complainant. 2d. That the executors shall release to him all claims to any property, real or personal, conveyed or settled on complainant by the testator in his lifetime. 3d. That the complainant shall release to the executors "all his claims in law or equity, to the estate, real and personal, devised and bequeathed, or intended to be devised or bequeathed, by the said Charles Bennett by his said will, to be held and disposed of by the said executors in the manner in and by the said will

prescribed. And that the said executors shall be at liberty, if any specification of the objects to which the residuary fund is to be applied be thought necessary, to apply the same to aid in finishing the Alexandria Canal, &c., and to subscribe to any railroad or other roads communicating with the said town; to any or to all of the above purposes, in such way as the said executors, or the survivors, may think most conducive to the prosperity and welfare of the town," &c.

The complainant, it seems, had studied law, but it is manifest from the facts before us, that he was but little acquainted with business, was an inefficient and dependent man, easily misled, especially by those for whose abilities and characters he entertained a profound respect. From the high character of the executors, no one can impute to them any fraudulent intent in this transaction. Looking to what they considered to be the object of the testator, they felt themselves authorized, if not bound, to effectuate his purposes by making this compromise with his heir at law. They had no personal interest beyond that which was common to the citizens of Alexandria. And we admit that they may have acted under a sense of duty, from a misconception of their power under the will.

But in making the compromise, the parties did not stand on equal ground. The necessities and character of the complainant were well known to the executors. Having the confidence expressed in the validity of the devise, they could hardly have felt themselves authorized to pay to the complainant twenty-five thousand dollars for the relinquishment of a pretended right. Nor could they have deemed it necessary, in the agreement of compromise, substantially to constitute him the donor of the munificent bequest to the town and trade of Alexandria.

We are to judge of this compromise by what is stated in the bill, the facts being admitted by the demurrer. And it appears to us that the agreement, under the circumstances, is void. It cannot be sustained on principles which lie at the foundation of a valid contract. The influences operating upon the mind of the complainant induced him to sacrifice his interests. He did not act freely, and with a proper understanding of his rights.

The decree of the Circuit Court is reversed, the demurrer overruled, and the cause remanded for further proceedings.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holder in and for the County of Alexandria, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded, for further proceedings to be had therein in conformity to the opinion of this court.