Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

profit and increase from her work, and gain from the dertook to pay the creditor; in this case both underuse of her estate. If they are to be so limited in her took to pay the creditor. Can it make a difference in favor, they may easily, as in this instance, become the measures of liability that in one case the married mot merely enabling statutes for her benefit, but also woman entered in her own name and her husband in in her hands instrumentalities of fraud.

his name in the execution of a joint obligation, and Upon the precise question presented, the opinion of in the other case a name which represents also joint the court below assumes that the decisions of other Jiability, but which may in effect also be several ? courts are conflicting; but we are referred to no caso Partners are at once principals and agents. Each in this court where a woman has successfully as represents the other, and if in the relation of partnerserted her coverture as a defense to au action ship, there are obligations which a married woman for the price of goods purchased by her, and I am I cannot enforce against her husband, or the busband uuable to see why, as against creditors, she should be against the wife, they involve no feature of the present permitted to interpose the mere form of her promise action which asserts only the obligation of a debtor to as av obstacle to their recorery. It is settled that the | discharge her debt, or the obligation of a promisor to things which the statutes above referred to permit her | fulfill her promise. to do in person, she may also do by another as her More like the present case is that of Scott v. Conagent. This is necessarily so, for she is allowed to act way, 58 N. Y. 619, where in an action for the price of in respect to them as if unmarried; and it cannot be labor and materials supplied to a theater carried on doubted that the improvement of her land, or the by Sarah T. Conway and her husband, Frederick B., management of her personal property, whether for under the name of “Mrs. F. B. Conway's Brooklyn preservation or business, may be conducted by her Theater," and in which the wife and busband were by means of any agency which any other owner of jointly interested, it was held to be no defense against property might employ, and that the produce and in one who dealt with her in ignorance of the partnership, crease thereof will be hers. Knapp v. Smith, 27 N. Y. that she had a dormant partner, and that the rule 278; Abbey v. Deyo, 44 id. 34. So she may do those was not changed by the fact that the partner was her things through her husband as her agent. Abbey v. husband. Deyo, supra; Rice v. Smith, 45 N. Y. 230. She may In Bitter v. Rathman, 61 N. Y. 512, it was held that a also have such a community of interest with him in narried woman who in secret trust for her husband berelation to real estate as will render her liable for his comes a member of a copartnership, is to be regarded frauds relating to it; and when he, professing to act as the owner of the interest she represents, and might as her agent, makes false representatious, although maintain an action for the dissolution of the copartwithout her kuowledge, and she receives the proceeds, uership, and for an accounting. The defendant in she cannot retain the fruits of bis frauds. Krumm v. that case denied that she was a partner, and claimed Beach, 96 N. Y. 398.

that he aloue was interested in the business; claimAgain, as to all contracts relating to her separate es- ing, that being a married woman, she could not in law tate, or made in the course of her separate business, she be his partner. The court held otherwise, and also, stands at law on the same footing as if unmarried, and that having suffered herself to be regarded by the can therefore make negotiable paper which will be gov- public as a partner, she was liable as such to the crederued by the law-merchant, and can be sued upon in itors of the ostensible firm, although it might be otherthe ordinary way by general complaint, and without wise as regarded her husband and his creditors, but special statements. Frecking v. Rolland, 53 N. Y. 422. as to any liabilities of the ostensible firm she would Nor can she escape liability because she and her hus be entitled to protection as against the defendant and baud are joint makers of the note sued on.

her husband. In Frecking v. Rolland, supra, the action was upon It would seem therefore that by becoming a parta joint promissory note sigued by the defendants, who ner either with a husband or another person, a mar. were husband and wife. He set up usury, and she set ried woman loses no right of property. And no prinup coverture. The court directed a verdict for the ciple is suggested upon which her estate can be inwife, and the jury directed a verdict against the hus- creased at the expense of creditors, nor how either in band. The creditor appealed. The General Term af her owu name, or in her own name and that of anfirmed the verdict in favor of the wife, and the cred other, or with another, she can purchase goods on itor appealed to this court. Against the appeal it was credit to the advantage of her separate estate, and not argued (1), that being a married woman, she was not become liable for its payment. liable for the note in suit; (2) that the complaint being In Coleman v. Burr, 93 N. Y. 17, cited by the appelgeneral, and not specific, was insufficient to charge lant, the sole question was whether the conveyance of her property. Neither objection prevailed, and the property, by the husband to his wife was sustained by judgment in her favor was reversed. There the hus a consideration good as against his creditors who imbaud, acting for himself, and as the agent of peached it. Here the wife was as capable of conhis wife, borrowed money with which to pay tracting as if she had been unmarried-as capable of for a factory bought by her. The money was adding to her estate by fresh acquisitions; and she loaned to them, and was in part so applied. The note should not be permitted to escape payment by joining was given for the money loaned and for services. The to her own name that of her husband, or by combincourt, in answering the defendant's objentions, show | ing the two iuto a firm or partnership name. It was that the capacity of a married woman to Lake con- by that name she chose to contract, and as between tracts relating to her separate business is incident to herself and creditor she is bound by it. Individuals the power to conduct it, for the latter would be barren may be liable as partners to third persons, while as beand useless if disconnected with the right to conduct i #ween themselves they are not. it in the way and by the means usually employed. In Here then the question is not between husband and the case cited she became a joint contractor with her wife. Assume that as to and with him she has no cahusband, but she was as much bound to perform the pacity, it by no means follows that she shall not be held joint engagement as if the undertaking had been sey- | upon a contract made by him upon a consideration eral, and she did not escape liability because her joint moving to her, where a third person, who parted with contractor was her husband. It was not necessary to that consideration in reliance upon the husband's apinquire in that case whether the one paying could ob- parent agency, seeks to enforce the contract. If the tain contribution from the other, nor is it necessary adoption of a firm pame was a mere contrivance to to go into that question here. Iu that case both una carry on the business jointly, and at the same time to

put the property acquired and added to the wife's eral issue with a brief statement that the contract separate property out of the reach of creditors deal- was void under Gen. Laws, chap. 169, § 18. Facis ing with either bona fide as the partner of the other, it found by the court. should not be permitted to have that effect. If as the ! The plaintiff's were liquor dealers in Boston, and the testimouy shows, the wife was the sole owner of the defendant a saloon keeper iu Suncook, at the time of property, that the husband had no interest in it, but | the sale of the liquors in suit. The plaintiffs' agent that for convenience they were doing her business in solicited orders for the liquors in the defendani's the name of J. P. Kinney & Co., her liability for a saloon, and forwarded the orders to the plaintiffs in debt contracted in that name is entirely consistent Boston, having no authority to make a contract for with the fact, if it be a fact, that as between the par their sale. He informed the defendant that the ties themselves no partnership exists.

liquors would be delivered to him at the plaintiffs' This is so, although the plaintiff alleges in the coin: store-room in Boston. When he solicited the orders plaint that the defendants are partners, and that alle | he had no knowledge of the provisions of sectiou 18, gation is not denied. For the purposes of the action | chapter 109, General Laws, and did not intend the it may be true. The plaintiff give credit to them as violation of any law of this State. He knew at the such, but the goods be sold were intended by them to | time of the sale that the defendant bought for the be annexed to the wife's separate estate, and they | purpose of selling in violation of law. The liquors were so annexed. If the arrangement was valid be. were delivered to carriers in Boston, for the defendtween all parties, there is no pretense of a defense. If ant, and he paid the cost of transportation from Bos. in valid only as between the defendants, the wife, who ton to Suncook where he received them. Their sale received the fruits of the transaction, cannot, as was authorized by the law of Massachusetts. against a creditor, assert its invalidity. Although The plaintiffs claimed that the sale being valid by married, she may be estopped by her acts and declara the law of Massachusetts, the law of this State pro. tions in any matter in respect of which she is capable hibited the taking or soliciting of orders did not inof acting sui juris. Bodine v. Killeen, 53 N. Y. 93. In validate it. They further claimed, that as the statute this instance the plaintiff proved the coutract, that it prohibits the taking of orders for spirituous or distilled was made by ber authorized agent, and that it had liquors only, they can recover for the wines. There reference toʻthe improvement and benefit of her sepa was evidence tending to show that the wines were rate estate. She had capacity to do all these things, intoxicating and if the arrangemeut which led to the use of her

Bingham & Mitchell and E. F. Jones, for plaintiffs. husband's name as joint promisor or partner was beyoud her power to enter into, she must meet that lia Albin & Martin, for defendant. bility without regard to any question wbether her

Smith, J. It is made a criminal offeuse for any perbasband is also liable, or as to what, rights of indemnity or otherwise she might have against him. She

son not an agent to sell or keep for sale spirituous was a principal, and he was her agent. He neither ex

liquors, or for any person within this State to solicit

or take an order for spirituous liquors to be delivered ceeded his power, nor were her acts to his prejudice, and if by reason of any tecbnical capacity, they could

to any place without this State, knowing or having not contract with each other or together, as constitu

reasonable cause to believe that if so delivered the ting that artificial entity, a firm

same will be transported to this State, and sold in or copartnership (a

riolatiou of our laws. Gen. Laws, chap. 109, $& 13, 18. question we do not decide), she is liable, and the contract enforceable against her in favor of the plaintiff,

One question in this case is, whether intoxicating

wines are included within the terms of this statute? whose property has been added to her estate upon the strength of a promise made in her name by her au

The Legislature has defined intoxicating liquor as thorized agent.

follows: “By the words -spirit,' 'spirituous,' or We think the court erred in directing judgment for

'intoxicating liquors,' shall be intended all spirituous the defendant. It should be reversed, and the plain

or intoxicating liquor and all mixed liquor any part tiff have judgment upon the verdict.

of which is spirituous or intoxicating, unless otherAll concur.

wise expressly declared." Gen. Laws, chap. 1, $$ 1,31. As intoxicating wines and other intoxicating fermen

ted liquors are not expressly excluded from the CONFLICT OF LAWS - COMITY – SALE OF operation of the sections 13, 18, 19, chapter 109 of the INTOXICATING LIQUORS.

General Laws, the only conclusion is that they come

within the prohibition of its terms. No reason apSUPREME COURT OF NEW HAMPSHIRE,

pears why the Legislature should prohibit the solicitaMARCH 11, 1887.

tion of orders for oue class of intoxicating liquors and

permit it as to others. The coustruction of statutes JONES V. SURPRISE.

is gorerned by legislative definitions; that of indictA person who solicits o takes orders for spirituous liquors in ments by the ordinary use of language. State y.

this State, to be delivered at a place without this State, Adams, 51 N. H. 568; State v. Canterbury, 28 id. 195. knowing or having reasonable cause to believe that if so I

The remaining question is, whether the plaintiffs delivered, the same will be transported to this State and

can maintain an action in our courts for the price of sold in violation of the laws thereof, cannot recover the liquors sold and delivered in a State wbere the sale is price of such liquors in the courts of this State, although lawful, they having solicited and taken orders for the the sale may be lawful in the State where it takes place,

liquors in this State in violation of our laws. That The rule of comity does not require a people to enforce in

their authorized agent, who solicited and took the their courts of justice any contract which is injurious to

orders, did not know the solicitation or taking of their public rights, or offends their morals, or contra

orders was prohibited, and did not intend the violavenes their policy, or violates public laws.

tion of any law, is immaterial. A person is presumed Comity will not extend the remedy offered by the laws of this to know and understand not only the laws of the State to enforce a contract valid in the State or country

country where he dwells, but also those in which he where it is made, when it is tainted by the illegal con

tran sacts business. In Hill v. Spear, 50 N. H. 253, it duct within this State of the party seeking to enforce it.

was held by a majority of the court, that mere solicitaASSUMPSIT to recover a balance due for the sale tions by a dealer iu liquors of orders in the future for A of wines and spirituous liquors. Plea, the gene spirituous liquors, even though he may have had reason to believe and did believe that the liquors this case. Although this is a Massachusetts contract, would be resold by the purchaser in violation of the | it had its inception in this State in direct violation of laws of this State, is not such a circumstance as will our laws. Orders for these liquors were solicited and affect the validity of a subsequent sale of sucb liquors ! taken here by the plaintiffs' agent, sent here for that in a State where the sale is not prohibited. Numer purpose, were transmitted by him to the plaintiffs, ous decisions in England and in this country upon the were accepted by them, and became the basis of the subject were cited and discussed in that case, and an contract which they seek to enforce in this State. The extended review of most of the same authorities may orders are evidence for the plaintiffs as to price, be found in Tracy v. Talmadge, 14 N. Y. 162. Further quantity and kinds of liquors purchased, as well as of discussion of the authorities is not called for at the an offer by the defendant to purchase, if indeed it is present time. When Hill v. Speur was decided, the pot true that the plaintiffs cannot prove their case soliciting of orders for spirituous liquors to be delivo without founding it upon the orders. Both the ered without the State was not prohibited. The pres. soliciting and taking of the orders was an indictable ent statute (Gen. Laws, chap. 109, $$ 18, 19), first offense in which the agent was principal. enacted in 1876 (Laws 1876, chap. 33), makes the mere The inciting, encouraging and aiding another to soliciting or taking of such orders, or the going from commit a misdemeanor is itself a misdemeanor. Russ. place to place soliciting orders or taking such orders Crimes, 46, 47. The plaintiffs stand precisely as they with knowledge or reasonable cause to believe that would if they instead of their agent had solicited and the liquors will be transported to this State and sold taken the orders. Gen. Laws, chap. 284, 87. Having in violation of law, without any other act in further aided, abetted, procured and hired their agent to vioance of the vendee's design, a criminal offense, pun late our laws by soliciting and taking orders for the ishable by fine or imprisonment. The plaintiffs' very liquors embraced in this contract, they cannot authorized agent, who solicited and took those orders with any grace invoke the remedy afforded by our from the defendant, knew the liquors were to be kept laws to recover the price. No rule of comity requires and sold by the defendant in this State in violation of us to enforce in favor of a non-resident a contract law. His knowledge is in law the knowledge of the | which had its origin in the open violation of law, and plaintiffs.

which would not be enforced in favor of our owu citiThe plaintiffs contend, that inasmuch as the solicit- zeus, especially when it is offensive to our morals, ing of orders constituted no part of the contract when opposed to our policy, and injurious to our citizens. the soliciting was not probibited, the act of soliciting, Its enforcement would tend to nullify the statute now that it is made illegal, cannot vitiate a contract which the plaintiffs have caused to be violated. The of which it forms no part. The case is not affected by law which prohibits an end will not lend its aid iu the plaintiffs' ability to prove a sale without proof of | promoting the means designed to carry it into effect. the solicitation.

uion. No people are bound to enforce or It does not promote in one form that which is prohold valid in their courts of justice any contract which bibited in another. White v. Buss, 3 Cush. 448, 450. is injurious to their public rights, or offeuds their The opinion in Hill v. Spear, 50 N. H.264, concedes morals, or contravenes their policy, or violates public that there could be no recovery if the plaintiffs had law. And every independent community will judge | actively participated in an illegal act in effecting the for itself how far the rule of comity between the sale, and it was put upon the ground that Stewart, States is to be permitted to interfere with the domes. their agent, did uot advise, request or encourage auy tic interests and policy. 2 Kent Com. 457, 458; Hill violation of the laws of this State. v. Spear, 50 N. H. 253, 262; Bliss v. Brainard, 41 id. 1 In Bliss v. Brainard, 41 N. H. 256, 268, we said : 256, 258. The object of the statute of 1876 (Gen. Laws. “Where a contract grows immediately out of, and is chap. 109, SS 18, 19), was to discourage the sale of liquor connected with an illegal or immoral act, a court of in other States to be transported to this State and justice will not lend its aid to euforce it. So if the sold in violation of its statutes. New Hampshire can contract be in part connected with the illegal connot prohibit the sale of liquor in other States, but it | sideration, but growing immediately out of it, though can punish, as it does, by this statute, acts done in it be in fact a new and separate contract, it is equally this State with the purpose of facilitating sales of in tainted by it.” In that case the plaintiff sought to retoxicating liquors in other States to be transported to cover for the value of the casks in which the liquors this State, and to be illegally sold here, in contraven were contained, and for the freight and cartago of the tion of our policy, and to the injury of our citizens. liquors, the sale of the liquors being unlawful. Fowler, The statute was intended to make such sales and J., said: “ Aside therefore from the positive protransportations difficult, if not imposible, by subject visions of the Massachusetts statutes, withdrawing all ing those who violate its provisions to the penalty of protection from vessels and casks when employed as fine or imprisonment. Where a statute provides a pen the instruments for perpetuating a violation of posialty for an act, this is a prohibition of the act. In Bart. tive law, we think the sale of the casks was so tainted lett v. Vinor, Carth. 252; S. C., Skinn, 322, Holt, C. J., with the illegality of the sale of the liquors, so much said: “Every contract made for or about any matter a part of the res gestae of the main, illegal and criminal or thing which is prohibited or made unlawful by any transaction, and so much the mere instrumeut whereby statute is a void contract, though the statute does not it was accomplished, that no action can be maintained mention that it shall not be so, but only inflicts a to recover their price.” For analogous reasons the penalty on the offenders, because a penalty implies a plaintiffs in this case cannot recover. Although this prohibition though there are no prohibitory words in is a Massachusetts contract, valid in that State, it is the statute." Accordingly, it is everywhere held that so tainted by the plaintiff's illegal conduct in soliciting, wherever an indictment can be sustained for the taking and transmitting orders in violation of the illegal sale of liquors or other goods, there the price statute, that comity will not extend to them the cannot be recovered (Bliss v. Bancroft, 41 N. H. 256,268; remedy afforded by our laws. The taking of such Smith v. Godfrey, 28 id. 384; Caldwell v. Wentworth, I orders tends directly to encourage the illegal sale of 14 id. 431; Lewis v, Welch, id. 294; Pray v. Burbank, 10 liquors in this state, and being prohibited, it follows id. 377) and if this was a New Hampshire contract | that an action to recover the price of liquors sold and the plaintiffs could not recover. The law does not | delivered pursuant to orders so solicited cannot be help the seller to recover the price of goods the sale of maintained in this State, although the sale of intoxiwhich it interdicts. The reason of this rule applies in cating liquors in the State or country where they are gold and delivered is not illegal. Dunbar v. Locke, amended by making the residuary legatees specified 62X. H.

in the will additional parties defendant. Subsequently Judgment for defendant,

a hearing was had upon pleadings and proofs, and a Carpenter, J., did not sit; the others concurred. decree was entered finding that the residuary clause

of the codicil was ineffectual to dispose of the property, but that it nevertheless revoked the residuary

clause of the will, and declaring that the real estate of TRUST - CHARITY -- CREATION OF

which the testatrix died seised belonged to the comVALIDITY.

plainants as her heirs at law, and directing that the

rest and residue of the personal estate should be disSUPREME COURT OF ILLINOIS, JUNE 17, 1887. tributed to the complainants as intestate estate. From

this decree the attorney-general, the executors, and a HUNT V. Fowler.

portion of the legatees specified in the residuary clause

of the will have prosecuted this appeal. A will contained this residuary clause: “All the rest and

There is in America courts much diversity of decisresidue of my estate, including that which may lapse for

ion upon the subject of charitable trusts. In express any cause, I direct to be invested or loaned upon the best

private trusts there is not only a certain trustee who terms possible, so as to produce the largest income, and

holds the legal estate, but there is a certain specified said income to be distributed among the worthy poor of

cestui que trust clearly identified, or made capable of La Salle, in such a manner as a court of chancery may

indentification, by the terms of the instrument erectdirect.” Held, that this created a valid charitable trust,

ing the trust. It is an esseutial feature of public under the control of chancery, and was not void for uncertainty in the beneficiaries.

or charitable trusts that the beneficiaries are uncer

tain, - a class of persons described in some general | PPEAL from La Salle Circuit Court.

language, often fluctuating, changing in their individ

ual numbers, and partaking of a quasi public characGeo. Hunt, attorney-general, and Mayo & Vidmer, ter. 2 Pom. Eq. Jur., $ 1018. for appellants.

In some of the States the equitable system of dis

tinctively charitable trusts is not recognized, and the Duncan, O'Connor & Gilberts, for Vineria Fowler

courts apply ovly the rules applicable to express priand others, appellees.

vate trusts. In other States the “statute of chariSHELDON, J. This was a bill in chancery filed by table uses " of 43 Eliz. chap. 14, has been adopted or the heirs at law of Esther S. Chapman, deceased, repealed, and thereby decisions have been influenced. against the attorney-general of the State and the And in other cases local legislation, or supposed local executors of the will of the decedent, to have a certain policy, to more or less extent, enters into adjudicaportion of the estate left by her declared to be intes tions. In another, and as believed, the larger, portate, and to belong to the complainants, as heirs at law tion of the States, the system of charitable trusts as of the decedent. The will, executed March 15, 1883, 1 administered in the English court of chancery, in the after making sundry bequests to various persons other exercise of its ordinary judicial power, prevails, with than the complainants, concluded with this residuary variation in regard to the element of certainty in the clause: “All the residue of my estate I devise and trustee and the object of the charity. A classification bequeath unto the legatees hereinbefore named, in of the decisions in the several States will be found in equal proportions, excepting said Oakwood Seminary 2 Perry Trusts, $ 748, in note, and 2 Pom. Eq. Jur., and said Sylvester M. Chapman.” Subsequently, on $ 10:29, and note. The prerogative power of the crown, April 5, 1883, the testatrix executed a codicil which exercised through the lord chancellor as the represencontained this residuary clause: “All the rest and tative of the king, as where there is a gift to charity residue of my estate, including that which may lapse generally, without appointment of a trustee, and the for any cause, I direct to be invested or loaned upon bounty is devoted to some particular charity, or where the best terms possible, so as to produce the largest there is a gift to a particular charitable purpose which income, and said income to be distributed among the cannot be effectuated, and it is applied to some other worthy poor of the city of La Salle, in such manner as charitable use, cy-pres the original purpose, is rea court of chancery may direct." Executors of the garded not as a judicial, but a ministerial prerogative will were appointed. The decedent left both real and function. This prerogative power courts in this personal estate.

country do not assume to exercise. The bill alleges that the city of La Salle is situated Were this subject of charitable trusts a new quesin the town of La Salle, and includes but a small por tion with us, there would be opened up a wide and tion of the territory of the town; and that there is interesting field of discussion, in order for the estabpot now, nor has there ever been, in said city, any lishment of the proper rule in this regard. But we are organization or association, voluntary or otherwise, for saved the labor in this respect, from the ground having the distribution of charity to the poor of the city; heretofore been gone over by this court, and the rule and that the municipal authorities have no duties im- applicable to charitable trusts having been established posed upon them to provide for the poor; and claims to be that which is administered in the court of chanthat the residuary clause of the codicil is incapable of | cery in Eugland, in the exercise of its ordinary jurisexecution by reason of the uncertainty of the benefic diction as a court of equity. This was done in the iaries intended by the testator, and void; and that in case of Heuser v. Harris, 42 Ill. 425, and where it was consequence, all the rest and residue of the estate, recognized that the statute of 43 Eliz., chap. 4, had both real and personal, after the payment of the gen been adopted in this State. eral and specific legacies, was intestate estate. A de The entire contention in this case arises upon the murrer to the bill was interpored by the attorney construction, validity and effect of this residuary general and the executors, which was overruled by the clause of the codicil. It is insisted this clause is void court, whereupon the executors answered, denying for uncertainty as to the benoficiaries. the invalidity of the residuary clause of the codicil, or | This is not a bequest to charity generally, or to the that it was incapable of execution, and setting up that I poor generally, but to the worthy poor of the city of even if such were the case, the rest and residue of the | La Salle. The class here is definite, - the worthy poor estate must be distributed in accordance with the of the city of La Salle, - but the individuals of the residuary clause of the will. Thereupon the bill was class to whom the bounty is to be distributed are uncertain. There is always this uncertainty as to ln law with the support of the paupers iu the county, it dividuals, in the case of public charities, and it is this was held in that particular case that the poor of the feature of uncertainty which distinguishes public county were it paupers, and that the fund should be charities from private charities, charitable trusts held by the County Court to be applied for the latter's from private trusts; and to hold charitable gifts to be support. It is not to be the inference from that case void because of such uncertainty is to reject this that a charitable bequest to the poor necessarily means wholo distinctive doctrine of charitable trusts. 2 Redf. to paupers, and that the trust is only to be executed Wills. 544 (66).

by somebody charged by law with the support f In the case of a charitable bequest it is immaterial paupers. “A bequest in trust for the poor inhabi. how vague, indefinite, and uncertain the objects of the tants of a particular place, parish, or town is a charitestator's bounty may be, provided there is a discre table trust for the poor not receiving parochial or tionary power vested in some one over its application municipal aid and relief as paupers, on the ground to those objects. Domestic & F. M. Soc.'s Appeal, 30 that the charity is for the poor, and not for the rich. Penn. St. 425; Perry Trusts, $ 732. It is denied that and if it was applied to the maintenance of those supthere is any such discretionary power here given, and ported by the parish, town, or county, it would relieve White v. Fiske, 22 Conn. 31, is cited in support of such wealthy tax-payers from their taxes, and not materidenial. The bequest in that case was: “Any surplus ally aid the poor." Perry Trusts, $ 698. income that may remain, to the extent of $1,000 per It is said in Redf. Wills (2d ed.), 805, that some of annum, I direct to be expended by my said trustee the American cases have gone great lengths in carryfor the support of indigent, pious, young men preparing into effect the intention of the testator when there ing for the ministry in New Haven.” The decision | was great indefiniteness in the objects of the trust; was that the gift was void, as the objects of the bene “that the want of a trustee in such cases is never any faction were indefinite, and that no power was con obstacle in the way of a court of equity carrying into ferred on the trustees to make themi definite by effect any trust, and more especially one of a chariselection. This case, though meeting with seeming table character.” Mr. Pomeroy, in speaking of the approral in Grimes' Ex'rs v. Hurmon, 35 Ind. 198, has distinguishing features between charitable and pribeen disapproved by other high authorities. See vate trusts, says that in case of the former, “not only Perry Trusts, $S 713, 720, 748, note 1; 2 Redf. Wills may the beneficiaries be uncertain, but that even when (2d ed.), 541, note; Hesketh v. Murphy, 36 N. J. Eq. the gift is made to no certain trustee, so that the trust 304. The latter case especially speaks of White v. Fisk, if private would wholly fail, a court of equity will as a case not likely to be followed.

carry the trust into effect either by appointiug a trusIn Hesketh v. Murphy, the testator's will empow tee, or by acting itself in place of a trustee. 2 Pom. ered and directed the trustees to employ the annual | Eq. Jur., $$ 1925, 10:26. And see Brown V. Kelsey, 2 income of the fund “for the relief of the most de. Cush. 243; Washburn v. Sewall, 9 Meto. 280. serving poor of the city of Paterson aforesaid, for. There can be no question of the general rule. But it ever, without regard to color or sex: but no person | is said it does not apply in a case where there is such who is known to be intemperate, lazy, immoral, or indefiniteness as to beneficiaries as here. Numerous undeserving, to receive any benefit from the said are the instances which might be cited where there fund." It was objected that the gift could not be ap. was the want of a trustee, and the court executed the plied to its objects and was void, because the will did trust in cases of equal indefiniteness as here as to the mot confer upon any one the power of ascertainment objects of the trust. As in McCord v. Ochiltree, 8 of the individuals who should receive the benefit of Blackf. 15, where the legacy was for the education of the bequest. But the court held that the power given the pious, indigent youths:'in Bull v. Bull, 8 Conn. 47, the trustees by the will to distribute the fund carried where the executors were to dispose of the residue of with it, by necessary implication, the power to select the estate "among our brothers aud sisters and their the beneficiaries from the designated class, and up- children as they shall judge shall be most in need of held the bequest. We entirely agree with the criti the same, this to be done according to their best cism there made by Chief Justice Beasley upon the discretion,- and the executors died never having excase of White v. Fisk, that there was a mistaken as ercised the power, nor executed the trust; in Williams sumption on the part of the court in that case that v. Pearson, 38 Ala. 299, where the beneficiaries named there was no power to select the objects of the charity were “ all the paupers and poor children of two desiglodged by the testator in the trustee; that when a nated 'beats,' whose parents were not able to suppower is conferred on the trustees to distribute the port them;" in Howard v. American Peace Soc., 49 fund to members of a class, such members baving cer We. 288, where the gift was to the suffering poor of the tain qualifications which can be ascertained only by town of Auburu. Where a legacy is given to trustees the exercise of judgment and discretion, as the act to distribute in charity, and they all die in the lifeof distribution canuot be performed except after such time of the testator, yet the legacy will be enforced in ascertainment of the particular beneficiaries, the equity. 2 Story Eg. Jur., $ 1166. An extended collecprincipal power to distribute the money carries with tion of cases on the general subject may be found in it the incidental and necessary power of selection; note to Hesketh v. Murphy, 35 N. J. Eq. 23, and in 1 and this, upon the ordinary doctrine, that when one | Jarm. Wills, 403, in note. act is authorized to be done by a trustee or other Mr. Perry sums up, as the result of the principles and agent, every authority requisite to the doing of such authorities, that "a bequest for charity generally, act is by intendment of law comprised in such grant * * * or to the poor generally, or to charity generor power. See Pickering v. Shotwell, 10 Penn. St. 23, | ally, with no trustees appointed, will not be carried that the power in the trustees to act at its discretion into effect by the courts in this country." Perry need not be expressly given, if it can be implied from Trusts, $ 729. That "if a testator makes a general and the nature of the trust. In the later cases of Erskine indefinite bequest to charity, or to the poor, or to rev. Whitehead, 84 Ind. 357, the decision in Grimes v. ligion, and appoints no trustees, but plainly refers Harmon does not seem to be approved in its full ex such appointment to the courts, there would seem to tent.

be no impropriety in the court appointing a trustee In Heuser v. Harris, supra, the bequest of money according to the plain intent of the donor, leaving such was “to the poor of Madison County," the interest | trustee to find his power in the will of the donor. But only to be used, with no appointment of a trustee. As if a testator makes a vague and indefinite gift to he County Court of Madison county was charged by charity, and names no trustee, and gives no power to

« ΠροηγούμενηΣυνέχεια »