The Ladies' Seamen's Friend Society of New Haven, at the decease of the testatrix, was incorporated "for the purpose of aiding the destitute seamen who may frequent the port of said city, and of endeavoring to benefit the temporal and spiritual interests of such seamen as chance or commerce may bring to said port." The legacy in its favor, now in question, was given "for the aiding of destitute seamen." The mode of expenditure thus prescribed falls directly within the first of its corporate purposes.
The legacy amounts to over $150,000, and the appellants correctly claim that the limitation in the original charter, as to holding property "to an amount not exceeding fifteen thousand dollars," cannot fairly be restricted to the immunity from taxation, but applies generally to the capacity of the society to acquire. *Page 598
If this objection be one that can only be taken by the State, the decree of probate should be affirmed; for not only has the State taken no adverse action, but it has so amended the charter as to remove the restriction.
If, on the other hand, the objection would otherwise be available to the heirs at law, it has been removed by what has taken place subsequent to the will.
The bequest was to a good charitable use, the aiding of a certain and definite class of the poor, and a power in the legatee to select the particular members of the class to be benefited was necessarily implied. New Haven Young Men'sInstitute v. New Haven, 60 Conn. 32, 41. The society was incorporated for accomplishing that and other purposes. It was therefore a suitable agency for the administration of the charity. It was to receive no beneficial interest. Whatever should come into its hands, would come clothed with a special trust. Dexter v. Evans, 63 Conn. 58, 60, 38 Amer. St. Rep. 336. If, then, it were legally incompetent to receive so large a legacy, the case would be simply one of the failure of a trustee. This in equity never involves a failure of the trust. When the difficulty arises from a refusal by the trustee appointed to act, it is necessary to have another one formally appointed by a court of equity or a court of probate.Dailey v. New Haven, 60 Conn. 314, 322. But here the trustee selected by the testatrix is ready to accept the office. It is and has always been unquestionably competent to receive so much of the legacy as does not make its entire property exceed $15,000 in value. It is not alleged that its property has ever attained that amount. The will creates two successive residuary estates. Everything not disposed of under the first eight articles became vested in Samuel E. Merwin as trustee, at the decease of the testatrix. The main object of this trust was to provide for the comfortable support of her brother as long as he should live, and for that purpose any part of the principal might be applied, should it be deemed necessary. Upon his death a second residue was to be formed. The bequest of $600 to St. Paul's Society was to be paid first. Her nephew and niece were to receive *Page 599 $200 each. The homestead was to pass to St. Paul's Society. A fund was to be reserved for a small annuity. All these provisions first became operative in enjoyment at the death of Josephus Forbes. This is expressly stated in the tenth and thirteenth articles; necessarily implied in the devise of the homestead, for it had been specifically devised to the trustee with a view to its use as a home for Josephus; and fairly implied in the eleventh article, from the order in which it occurs in the will. It was this second residue, to be formed at the death of Josephus, which was the subject of the order appealed from. So long as Josephus lived it was uncertain what, if anything, would remain unexpended. It was also uncertain whether the incompetency of the Ladies' Seamen's Friend Society to take, if incompetent it were, would continue until his death. The interest of the heirs at law, therefore, during this period, if anything, was a contingent one, for it depended on uncertain and dubious events; and an equitable one, for the legal estate was vested in another.
While this state of things continued, the State intervened and made the Ladies' Seamen's Friend Society fully competent to accept such a trust. It could therefore have been appointed by a proper court, if there were no one to take and administer this residuary bequest, to receive it as trustee.White v. Howard, 38 Conn. 342, 366, 367.
But there was no occasion for such an appointment. The bequest did not constitute a trust in name, but only by construction of law. The society had become entitled to take as legatee, precisely as one to whom a legacy was left in his infancy, which has never been paid to his guardian, can claim it after arriving at full age. Fellows v. Miner,119 Mass. 541; American Bible Society v. Wetmore, 17 Conn. 181, 187.
It is contended by the heirs at law that one of the purposes of the society, that of endeavoring to benefit the temporal interests of such seamen as chance or commerce may bring to the port of New Haven, is not a charitable one. If this be so, it is immaterial to the inquiry as to its capacity to receive a bequest given exclusively for another purpose which is charitable. *Page 600
The reasons of appeal attack the validity of the bequest to St. Paul's Society for the purpose of erecting an episcopal chapel and sustaining a "mission" upon the homestead of the testatrix, on the following grounds: —
1. No such mission is now in existence and none may ever come into existence.
2. "It is and will be practically impossible to support or maintain a mission or church at the place and as provided in the first part of the fifteenth clause of the will. The designated place is unfitted geographically. There are and will be few, if any, persons that will attend or be ministered to by such mission or church, and the few that might attend or be ministered to by such mission or church would be better served and accommodated by other and surrounding protestant episcopal missions or churches.
"The testatrix's maiden name was Forbes, and her fortune disposed of by this will comes from the Forbes family living in the homestead referred to in this clause of the will; and the substantial purpose of this provision of the said will was to create and maintain in perpetuity a monument to the Forbes name in this particular place.
"There never has been nor is there likely to be any call, demand, or occasion for a parish at the homestead of the testatrix referred to in said will, nor is the vicinity of said homestead a field for mission work, nor is there or will there, in all probability, be any one to attend said chapel, if erected; and said expenditure of money, as directed in the fifteenth clause of said will, would be a wasteful expenditure of trust funds.
"Said bequest to erect a chapel and maintain a mission in connection therewith is limited to a particular object and a particular institution. There is no general charitable intent, and it is not for general religious purposes, nor is there anything to indicate that the object of the testatrix was to benefit Saint Paul's Parish, or the parish to be created for the inhabitants of that portion of the city as a whole, and it is impossible to carry out the true intent of the testatrix."
To these allegations a demurrer has been interposed. This *Page 601 admits the truth of such of them as can be deemed allegations of fact. It does not admit the truth of such of them as merely express the opinion of the appellants. As to these, the only admission is that the appellants entertain them.Wadsworth v. Champion, 1 Root, 393, 395; State v. Sykes,28 Conn. 225, 228; Woodruff v. New York N.E. R. Co., 59 id. 63, 89; State's Attorney v. Selectmen, ibid. 402, 410;Bradley v. Reynolds, 61 id. 271, 279; Connecticut Hospitalfor Insane v. Brookfield, 69 id. 1, 4.
An opinion, however, may be such and so pleaded as to present a material issue. This is when it is a conclusion as to a material point that reasonably follows from certain premises, which either are established or may be a proper subject for proof.
In an equitable action by heirs at law to establish a resulting trust arising out of an attempted testamentary disposition, evidence may be adduced to show that such disposition directs what it is impossible to accomplish, provided this impossibility has been sufficiently averred.
Courts of probate, in ordering the distribution of a testate estate, may consider events, whether prior or subsequent to the death of the testator, so far as may be necessary to enable them to apply correctly the description in the will of the parties to be benefited, and effectuate the true intent of the whole instrument. For this purpose and to this extent they have full chancery powers. American Bible Society v. Wetmore,17 Conn. 181, 187. They do not, however, have jurisdiction to make any final adjudication upon the validity or invalidity of testamentary trusts by reason of alleged difficulties in carrying them into execution, nor because they may deem them unwise in principle. Chamberlin's Appeal,70 Conn. 363, 378.
The Superior Court on an appeal from probate has a wider jurisdiction, though it is one to be exercised with reserve and caution. Mack's Appeal, 71 Conn. 122, 133.
No objection having been taken by the appellees to the form of the proceeding by which the appellants have sought to present their objections to the validity of the devise and *Page 602 bequest now in question, we think the reasons of appeal should be given the same effect as if they had been incorporated in the complaint in an equitable action to establish a resulting trust.
Thus treated, the allegations of existing facts are that there is no mission now in existence; that the name of the testatrix was Forbes; and that the funds in dispute came from the Forbes family inhabiting her homestead. The material allegations or conclusions of fact are, that it is and will be impossible to maintain a mission church upon the homestead, the grounds stated being that, as a site, it is unfitted geographically, and that there are few, if any, to whom such institutions could usefully minister; that to establish them would be a wasteful expenditure of trust funds; and that it is impossible to carry out the true intent of the testatrix.
That there is no such mission now in existence is obviously no reason why there never should be any. It was to supply the want of one that the bequest was made.
That it was a purpose of the testatrix that the chapel for which she provided should perpetuate the name and memory of her family at the place where they had their home is apparent from the will. If it were her controlling purpose, this would not tend to invalidate the bequest. The motive for doing a lawful act, whatever it may be, cannot make it an unlawful act. McCune v. Norwich City Gas Co.,30 Conn. 521, 524; Mack's Appeal, 71 id. 122, 127, note, 135.
The conclusions of fact must be weighed and judged by the facts alleged to support them. McCune v. Norwich CityGas Co., 30 Conn. 521.
Could then, had these reasons of appeal been traversed, evidence have been properly received to show that the site prescribed for the proposed chapel and mission is unfitted for the purpose?
It would, of course, be of no avail to prove that a better one might have been selected. To overthrow the will in this regard proof would be necessary that the homestead was incapable of serving as a site for an episcopal chapel or mission. The history of the world and of all religions teaches *Page 603 that churches, convents and temples have been maintained and frequented for ages in places remote from any center of population, and, on the other hand, that no city is so crowded with houses of worship that in the opinion of the adherents of some sect or denomination there is not a call for more.
It appears from the will before us that the homestead of the testatrix is in New Haven. If it be in the middle of it, she had a right to dedicate it to religious uses. If it be in the remotest outskirts, she had the same right. No uses can be more distinctively religious than the establishment of a mission church. It cannot be, in the nature of things, impossible that one may be successfully organized by St. Paul's Society to occupy a chapel built on the designated lot. The testatrix had a right to provide that the experiment should be tried. Grand Prairie Seminary v. Morgan, 171 Ill. 444, 49 Northeastern Rep. 516. Should it fail after a fair trial, an opportunity would then first arise for her heirs at law to bring before a proper court of equity proceedings to determine whether there was a resulting trust in their favor, or an occasion for the application of the doctrine of approximation.Hayden v. Connecticut Hospital, 64 Conn. 320, 325.
The averments "that there are few, if any, persons who will attend or be ministered to by such mission or church;" that these few would be "better served and accommodated by other and surrounding protestant episcopal missions or churches;" and that there is not and will not "in all probability be anyone to attend said chapel," taken together, import that there will be not none, but only a few to whom such a mission and church would minister, and that these could be better ministered to by similar institutions already existing in the surrounding territory. This is an admission that there are and will be some to take benefit from the charity, and therefore, that it is not impossible to maintain it. The testatrix has provided ample funds for the purpose of supporting religious worship at the place in question, and that the worshipers will be few does not prove that no good will be accomplished.
It was her "true intent" that the Forbes chapel should *Page 604 be erected and a mission set up in connection with it. It does not appear that she looked forward to the gathering of a large congregation there. It does appear that she though those who would worship there would, at first, be too few or too poor to meet the necessary expenses of maintaining such an establishment. In giving it the name of a mission church, she necessarily implied that it was to be a center of missionary effort to bring under Christian influences those who before were indifferent or hostile to them. The reasons of appeal, taken in connection with the will, show that it is not impossible to carry out this general intent.
The trust is for an object plainly charitable. General Statutes, § 2951. That the ministry of the gospel which it was designed to maintain was that of a particular denomination of Christians, and to be supported in a particular church edifice, is immaterial. Conklin v. Davis, 63 Conn. 377, 384;Mack's Appeal, 71 id. 122, 135. Every episcopal society is expressly empowered to receive any property to use "for maintaining religious worship according to the doctrine, discipline, and worship of said church, and for the support of the educational and charitable institutions of the same." General Statutes, § 2075. The property is given for immediate use, and not tied up for an indefinite period with an intervening estate created for the benefit of private individuals, as in Jocelyn v. Nott, 44 Conn. 55. The case is not one of those in which the trustee, being one whose personal agency is indispensable for carrying out the intended purpose, declines the trust, and when summoned into a court of equity declares its execution to be impracticable, as inTeele v. Bishop of Derry, 168 Mass. 341, 47 Northeastern Rep. 422. Nothing is stated in the reasons of appeal as having occurred since the death of the testatrix to change the situation as it existed when the will was made.
Under these circumstances, no material and traversable issue was presented by the averment that to establish the chapel and mission as directed by the will would be "a wasteful expenditure of trust funds."
The reasons of appeal attack the validity of the bequest *Page 605 to "provide a home for ladies of advanced age, or infirm, who are or may hereafter become connected with the said Saint Paul's Church Society, or with the mission or the church that is to be established upon my homestead."
The grounds set up are these: It "is not charitable, but benevolent only. It is not public; it is indefinite. It is uncertain and unlawful in that it commits to the wardens and vestry an arbitrary power and discretion to appropriate the avails of said investment to purposes neither public nor charitable.
"There is no such home as is mentioned in said will of Betsey Bradley connected with or maintained or supported by said society or parish, nor is said society or parish engaged in the work of providing a home for ladies of advanced age, or infirm, or any other like home.
"The said Betsey Bradley has been for many years a member of said society or parish known as St. Paul's, and so associated with a number of other ladies in like manner connected with said society or parish, none of whom were either sick, or poor, or objects of charity, or within the class or classes or description of persons to whom or for whose use and benefit the said attempted gift and bequest could lawfully be made.
"No person could or can be or become connected with said society or parish except by the voluntary permission or action of said society or parish, or its officers and agents, and connection with said society or parish is dependent or contingent upon the fulfillment by the person or individual of certain theological tests and requirements, and the acceptance of certain theological dogmas, which said tests, requirements, and dogmas are peculiar, and confined to that particular ecclesiastical organization."
That the testatrix as a member of St. Paul's parish had been long associated with other ladies, also members of it, who stood in no need of a home, is obviously unimportant. It was not for such of her associates that she sought to provide. The terms of the bequest are entitled to a liberal construction in furtherance of the intent of the testatrix. *Page 606 Woodruff v. Marsh, 63 Conn. 125, 136. Thus construed, they sufficiently imply that those only can be entitled to share in the benefits of this gift who have no home or no comfortable one. To give proper shelter to women in that condition who are either of advanced age or infirm, is a mode of relieving the poor, and so falls directly within our statute of charitable uses. General Statutes, § 2951. St. Paul's Society takes, itself, no beneficial interest. It is a trustee for a designated purpose, to give a home to the homeless. White v. Howard,38 Conn. 342, 366.
That this relief is to be confined to members of one or two particular churches of a particular religious denomination, does not deprive it of its charitable character. It is not necessary, under the laws of Connecticut, to uphold a perpetual trust for the relief of the poor, that it should be in the strict sense a public one. The term "public," as used in that strict or technical sense, may be properly confined to gifts by which there is "some benefit to be conferred upon, or duty to be performed towards, either the public at large or some part thereof, or an indefinite class of persons;" thus excluding those pointing out a particular "body, or a definite number of persons, ascertained or ascertainable," to receive control and enjoy their benefit, even when they are for what are of the nature of religious uses. Old South Society v. Crocker,119 Mass. 1, 22, 23. In another and more natural sense, "public" is used, in respect to a testamentary gift, to distinguish it from a "private charity," so as to exclude gifts to selfish uses, and benefits conferred on particular individuals designated by name, or to be designated thereafter from a class separated from the rest of the world by some private or personal relations, having no respect to the good of others. Gifts of this latter description are not protected against the effect of the rule against perpetuities; but that now in controversy is not one of them.
Whether the protection accorded by General Statutes, § 2951, to estates granted "for any other public and charitable use," is not equivalent to "for any other public or charitable use," is a question suggested and left undecided *Page 607 in Hamden v. Rice, 24 Conn. 350, 354, 355. But, be that as it may, the benefit now in controversy is for one of the uses previously specified in the statute, and the legislature has not limited those uses by requiring them to be public in the technical sense as well as charitable. Goodrich's Appeal,57 Conn. 275, 284; Conklin v. Davis, 63 id. 377, 383, 384;Christ Church v. Trustees, 67 id. 554, 565; Mack's Appeal, 71 id. 122, 135.
This bequest to St. Paul's Society is to be invested by its wardens and vestry "in such a manner as will best provide a home" for those of the class specified who may need such relief. The power to decide as to the best means of applying the funds for this purpose is impliedly given to the society. It inheres in the trust. Woodruff v. Marsh, 63 Conn. 125,128; Mack's Appeal, 71 id. 122, 135.
That there is now no parish home of such a kind is immaterial. The society has ample power to undertake the establishment of such a charitable institution. General Statutes, § 2075. Nor does the will make it indispensable that those for whose relief a home is to be offered should be gathered under a common roof. The society is left free, should it deem best, to provide a home for each or any of them in a private family.
The Superior Court is advised to sustain the demurrer to the reasons of appeal.
No costs will be taxed in this court.
In this opinion the other judges concurred.