Woodruff v. Marsh. 63 125 ISAAC B. WOODRUFF AND ANOTHER, EXECUTORS, vs. BEN- Hartford Dist., May T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE, BALDWIN and PRENTICE, JS. A testator by his will, after expressing a desire that a large part of his estate should be "used in the improvement of mankind by affording such assistance and means of educating the young as will help them to become good citizens," gave to sixteen persons who were named a tract of land in the town of W, with the sum of $400,000, in trust, for the purpose of maintaining a home for destitute and friendless children on the premises, to be known as "The William L. Gilbert Home, to be under the care and control of the trustees named," who were to have power to fill all vacancies. Held— 1. That the class to be benefited was sufficiently described. 2. That the "care and control" given to the trustees was not limited to the fund but extended to the institution. 3. That this control of the institution involved the power to select the in- 4. That the charitable purpose was stated with sufficient definiteness. The testator left the remainder of his estate, of about the same amount, to the same sixteen trustees, for the establishment and maintenance of an institution of learning to be known as "The Gilbert School," providing certain lands and buildings should be "given free of cost for the location of the school, excepting that the present owners of said land may reserve the use and income from the hotel and barn thereon, for the period of twenty years from the date of their purchase of the land." Held 1. That by a reasonable construction of this language it was the intent of the testator that the site for the school should be conveyed to the trustees within twenty years from its purchase by the then owners. 2. That the conveyance of the site was not a condition precedent of the taking effect of the bequest, but that it vested at once in equity in the class of beneficiaries who were ultimately to profit by it, liable to be devested by the subsequent failure to acquire the site within the time prescribed. 3. That the bequest was not therefore obnoxious to the statute against perpetuities. 63 383 63 125 65 229 63 125 67 567 63 125 68 532 63 125 71 135 63 125 74 606 74 607 63 125 77 616 77 712 Woodruff v. Marsh. The will further provided with regard to each of the bequests, that "the sum of $10,000 from the yearly income should be added each year to the principal for the period of one hundred years, and longer if the trustees should deem best." Held to be a reasonable provision and valid. If the trustees should continue the accumulation after the hundred years for an unreasonable time, equity could interpose. If two modes of construction are fairly open, under one of which a bequest would be illegal while under the other it would be valid and operative, the latter mode is to be preferred. And for the purpose of giving a bequest a construction that will make it valid, it is allowable to transpose words or limitations, where warranted by the immediate context or the general scheme of the will. Gifts to charitable uses are to be highly favored and will be most liberally construed in order to give effect to the intent of the donor, and trusts for such purposes may be established and carried into effect where, if not of a charitable nature, they could not be supported. The resulting trusts which can be rebutted by extrinsic evidence are those which rest upon a mere implication of law, and not those arising on the failure of an express trust for imperfection or illegality. The Superior Court has been vested by recent statutes (Gen. Statutes, $$ 776, 778, 779) with large equitable powers, extending to the application of the cy pres doctrine, in the case of trusts created by deed. Whether it ought not to be regarded as now having authority to deal in the same manner with charitable trusts created by will: Quære. [Argued May 3d-decided May 22d, 1893. SUIT for an adjudication as to the construction and effect of the will of William L. Gilbert; brought to the Superior Court in Litchfield County and transferred by agreement to Hartford County. Reserved for advice. The case is fully stated in the opinion. C. E. Perkins, with whom was S. A. Herman, for the plaintiffs. C. E. Gross, for the defendants. BALDWIN, J. This is a suit by the executors of the will of William L. Gilbert, of Winchester, for a construction of certain of its provisions. The will commences by a declaration that its dispositions are the result of a desire on the part of the testator that a large part of his estate should be "used in the improvement of mankind, by affording such Woodruff v. Marsh. assistance and means of educating the young as will help them to become good citizens." After certain legacies to his next of kin, and for educational and religious purposes, come the clauses as to which the advice of the court is sought. By the first of these he gives and devises to sixteen of his fellow townsmen, "in trust for the purpose hereinafter named," a tract of land in Winchester described as that "deeded to me by Henry Gay, together with all the buildings located thereon, and all the land which I may hereafter acquire adjoining the above-described tract," the will then proceeding as follows:-" and also the sum of four hundred thousand dollars, for the purpose of maintaining and supporting a home for destitute and friendless children, permanently, on the above described premises, and to be known as the 'William L. Gilbert Home;' the same to be under the care and control of the above-named persons as trustees, and said trustees shall have the power to fill all vacancies which may occur by death or otherwise; the whole number to always consist of sixteen, eight of whom shall be residents of the Fourth School District of Winchester, and the other eight shall be residents of the First School District of Winchester, as they are now divided; the said four hundred thousand dollars to be kept safely invested, and from the yearly income thereof the sum of ten thousand dollars shall each year be added to the principal of said fund for the period of one hundred years, and longer if the trustees deem it best. The balance of the income from said fund, including the income from said yearly additions, may be used for the maintenance of said home. And said trustees shall have the privilege of vesting said fund in mortgages secured on real estate located in this and other states within the United States; and also in the purchase of real estate and the erection of buildings thereon, as they may deem best, for the safety and increase of said fund." The heirs at law contend that this devise and bequest is void for indefiniteness, uncertainty, and the absence of any grant of power to select the beneficiaries. In devises and bequests of this nature our law requires Woodruff v. Marsh. either certainty in the particular persons to be benefited, or certainty as to the class of persons to be benefited, with an ascertained mode of selecting them out of such class. The testator, in the present case, describes the persons whom he intends to benefit as "destitute and friendless children;" the mode of benefit to be "maintaining and supporting a home" for them "permanently," at a place particularly specified, to be known as the "William L. Gilbert Home," the same to be under the care and control of the trustees whom he has selected, and their successors in the trust; and declares the great object of his will to be the affording of "such assistance and means of educating the young as will help them to become good citizens." We think that the trustees who are to maintain and support this home, and under whose care and control it is expressly placed, are thereby invested with ample powers to select for its inmates from time to time, subject only to the limitations imposed in the concluding portion of the will, such individuals of the class of destitute and friendless children as they, or a majority of them, may think proper, or to commit the power of selection to suitable officers or agents under their supervision. This power to admit includes power to exclude, and to remove after admission. All such acts are naturally incident to the control of the institution. It is claimed by the heirs at law that the words, "the same to be under the care and control of the above-named persons as trustees," refer not to the "William L. Gilbert Home,' but to the funds bequeathed. Such a construction would do. violence to the rule which refers an adjective or relative clause to its last antecedent, as well as to the natural course of thought which runs through the whole paragraph, the latter part of which contains specific directions as to the management of the fund and the use of the income it may produce. The charitable purpose is sufficiently definite. The children to be benefited must reside in the "Home." Coit v. Comstock, 51 Conn., 352, 382. They can reside there, at most, only so long as they are children. They must be taken Woodruff v. Marsh. from the class of the destitute and friendless, and they should be given such assistance and means of education as will help them to become good citizens. The "assistance" should be such as children, who are not destitute and friendless, find at their homes, and may thus include food, shelter, clothing and medical attendance. The means of education may be afforded either by instruction given at the home, or by allowing some or all of the children to attend school in the vicinity, at the discretion of the trustees. The class to be benefited is a large one, for the testator has imposed no restrictions as to race or residence, but the number of possible beneficiaries under a charitable bequest is immaterial where a power of selection is given. Treat's Appeal from Probate, 30 Conn., 113. The "assistance" to be furnished is quite as definitely indicated as was that in the bequest which we upheld in Tappan's Appeal from Probate, 52 Conn., 412, for the charitable assistance and benefit of indigent, unmarried, Protestant females over the age of eighteen years, residents of Bridgeport. In 1887, about three years before the date of the will, a special charter was granted to the same sixteen persons who are constituted trustees under this bequest, by the name of "The William L. Gilbert Home." 10 Special Acts, 632. By this charter they were authorized to erect and forever maintain a home in Winchester for destitute minors, admittance to which should at all times be under the control of the corporators, who could make such rules for their admission as should be deemed wise and best. The corporation was empowered to receive and hold any property which might be conveyed or bequeathed to it by William L. Gilbert, and in administering its trust to comply with any lawful regulations which he might prescribe. The heirs at law of Mr. Gilbert have argued before us that, as he did not make any bequest to this corporation, it may fairly be presumed that he did not like the discretionary powers as to the admission of minors to the home which this charter gave, and that as he afterwards used different language in respect to this matter in his will, such language ought to be construed as not inVOL. LXIII.-9 |