Opinion
05-28-1906
TRENTON SOCIETY FOR ORGANIZING CHARITY v. HOWELL.
Peter Backes, for complainant. E. E. Marshall and W. Holt Apgar, for defendant.
Suit by the Trenton Society for Organizing Charity against Gershum Howell, as trustee under the will of George W. Albertson, deceased. Decree for complainant withheld until the Attorney General could be brought in and given an opportunity to be heard.
Peter Backes, for complainant. E. E. Marshall and W. Holt Apgar, for defendant.
BERGEN, V. C. George W. Albertson, formerly a resident of Trenton, in this state, by his last will, bearing date September 4, 1860, and afterwards duly admitted to probate, directed that out of the residue of hisestate his executors should invest $9,000, and pay the income to persons named, during their respective lives, in amounts specified by the testator. After the death of all of the life tenants, the principal fund was to be distributed in the manner declared by the testator. The only bequest of the principal bearing upon the question submitted in this cause is expressed as follows: "Three thousand dollars shall be paid to the benevolent society of ladies known as the 'Dorcas Society of Trenton' whenever the ladies comprising the same at the time this bequest takes effect become incorporated; and I direct that the sum received by them be securely invested and the interest applied to relieving the deserving poor of the city of Trenton as they have been accustomed to do." The testator died in 1867, and at that time there was, in the city of Trenton, an unincorporated association of ladies doing a charitable work under the title of the "Dorcas Society of Trenton." The work was limited, in practice, to the making and distribution of garments among the poor of the city, and was carried on until the year 1877, when the society disbanded because, as it appears from the evidence, the growth of the city had so increased charitable demands that some more comprehensive plan to aid the needy became desirable. So far as the evidence shows, no further charitable work has ever been done by the ladies constituting the association known as the "Dorcas Society," under that title. Its title and voluntary organization passed out of existence in February, 1877. In the autumn of 1878 a new charitable society was formed, which included in its membership some of the ladies formerly members of the Dorcas Society. This association was purely voluntary. Its members met in pursuance of a general invitation and formed a society for charitable purposes; each lady joining without reference to her membership of the defunct Dorcas Society. It was a new society, formed without reference to the old association, although its objects and aims were not essentially different from those of the Dorcas Society. The new society continued its existence until March 7, 1881, when its work was suspended. According to the proofs no organized charitable work was taken up until October 16, 1882, when a similar society was formed by some of the same ladies and others who were inclined to join, which they called the "Trenton Society for Organizing Charity." This society carried on its charitable work substantially along the lines followed by the Dorcas Society, broadening the character of the charitable aid given, to comply with the increasing demands of the suffering, in that it gave food and fuel where needed, as well as clothing, until December 21, 1905, when a corporation was formed under the act permitting the incorporation of associations not for pecuniary profit, which corporation is the complainant, and it succeeded to the charitable place occupied by its unincorporated predecessor. Of the persons, eight in number, who signed the certificate of incorporation, four were ladies who had formerly been members of the Dorcas Society, and were the only known members of that society living. The last life tenant standing in the way of the distribution of the trust estate died in 1899, and the whole of the $9,000, other than the portion bequeathed in the foregoing manner to the ladies of the Dorcas Society when incorporated, has been distributed, and this bill of complaint is filed, praying a decree that the complainant be adjudged entitled to the fund and directing its payment by the trustee to it.
The defendant resists this application upon several grounds, chiefly because the corporate body is not called the "Dorcas Society;" that the association bearing that name disbanded in 1877, and that there is no such relation between complainant and the society intended by the testator as to justify a finding that it is its successor in law, and thus entitled to its rights; that the trust is limited to such charitable work as the Dorcas Society had "been accustomed to do," and therefore the fund cannot be used for food or fuel, which are some of the objects to which the complainant directs its charity; and that the language of the will, "I direct the sum received by them," means that the ladies, and not a corporation, must hold and distribute the fund. No principle of law is more firmly established in this state than that which requires the court to sustain a charitable bequest, and to favor any legally permissible construction of the Instrument creating it, leading to the carrying out of the purpose of the testator or grantor. Applying this principle to this bequest, we find that the primary object of the testator was to establish a trust "for relieving the deserving poor of the city of Trenton." and if the expression, "as they have been accustomed to do," does not give sufficient power to designate or select the beneficiaries, the power to dispense the charity implies the power of selection. Hesketh v. Murphy, 36 N. J. Eq. 304. In my opinion, however, the power of designation is conferred. The testator is presumed to have known the methods employed in selecting the recipients of their bounty by the Dorcas Society, and it was manifestly his intention to have his bequest distributed to and among those selected by the society as they had been accustomed to do. They were to relieve the deserving poor, and relief might be more effectually afforded with food and fuel than with clothing. It was not the intention of the testator to limit the means employed, but rather to confer the power to decide who were deserving. Assuming, as I think we are justified in doing, that there is a lawful charitable bequest, with the power, express or implied, to determine the beneficiaries, nevertheless the complainant insists that there is no incorporationknown as the "Dorcas Society," and therefore there is no trustee to execute the charitable gift. As I read the will, it does not require that the corporation mentioned therein should adopt any particular name. The testator was undoubtedly advised that the ladies could not as individuals execute the trust he wished to establish, and thus the members of the society were expected to incorporate, in order to take the gift. It was not the name, but the legal status, that was required. Nor is there involved any question of a special trust and confidence reposed in any particular persons, because, for aught the testator knew, those who were members when the will was executed would not be members when the gift went into effect, and all the ladies making up the voluntary association at the time they were to incorporate might be strangers to him.
The principal difficulty which the complainant has to meet rests in the fact that there were no ladies composing the Dorcas Society when the gift went into effect. That society went out of existence in 1877, having no members in 1899 to perfect a corporation; and therefore the precise corporation contemplated by the testator could not be brought into existence, nor can I find that the complainant is in any way the real successor to the corporation he expected would be formed. It is an entirely new and distinct organization, created to carry on the charitable work the testator intended to aid. The charitable bequest remained, but the contemplated trustee did not; but a trustee can be provided, for this court has determined that "the misnomer of the legatee who should in the first place receive and apply the fund, or the selection of one who does not have the power or equipment to carry the testator's intention into effect, or even the entire omission in any way to indicate a person or corporation to whom payment of the fund could primarily be made, will not defeat such a gift, if the testator's object is lawful." Bruere v. Cook, 63 N. J. Eq. 624-629, 52 Atl. 1001. The doctrine laid down by Chief Justice Marshall in the case of Baptist Association v. Hart's Ex'rs, 4 Wheat. (U. S.) 1, 4 L. Ed. 499, that charitable bequests, which are too vague to be claimed by the beneficiaries, and where no legal interest is vested in the trustee to whom the administration of the trust is committed, cannot be established by a court of equity, has not been accepted as the law in this state. On the contrary, our courts have been disposed to adopt the rule enunciated by Chancellor Walworth in Potter v. Chapin, 6 Paige (N. Y.) 639-049, that "it may now be considered as an established principle of American law that the Court of Chancery will sustain and protect such a gift, bequest, or dedication of property to public or charitable uses, provided the same is consistent with local laws and public policy, where the object of the gift or dedication is specific and capable of being carried into effect according to the intention of the donor." In 1844 the Supreme Court of the United States in Vidal et al. v. Girard's Ex'rs, 2 How. 190, 11 L. Ed. 205, discarded the theory upon which Baptist Association v. Hart's Ex'rs was decided in 1819, and Mr. Justice Story, referring to the publication of English records then recently at hand relating to the subject, said: "They establish in the most satisfactory and conclusive manner that cases of charities where there were trustees appointed for general and indefinite charities, as well as for specific charities, are familiarly known to and acted upon and enforced in the Court of Chancery. In some of these cases the charities were not only of an uncertain and Indefinite nature; but, so far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take. * * * Whatever doubts, therefore, might properly be entertained upon the subject when the case of Trustees of the Philadelphia Babtist Association v. Hart's Executors, 4 Wheat. (U. S.) 1, 4 L. Ed. 499, was before this court (1819), those doubts are entirely removed by the late and more satisfactory sources of information to which we have alluded." The rule in this state is to always sustain such a trust by the appointment of a trustee to receive the fund and execute the trust, and will not let a lawful charitable gift fail for want of a trustee.
On the argument it was objected that, as this is a public trust for charitable uses, the Attorney General is a necessary party, and that for want of his presence no decree should be made, and the bill dismissed. I am not willing to dismiss the bill, because the objection was first made after all the testimony had been taken. The equitable course to be followed is to permit the complainant to bring in the Attorney General and allow him to be heard before decree, if he desires it. If he is satisfied with the testimony taken, that may be used; or, if he is not, the case will be opened, that such additional testimony may be taken as he shall determine the proper protection of the public interest demands.
The decree will be withheld until the legal officer of the state can be brought in and given an opportunity to be heard.