Universalist Society in Sweden v. Kimball

Howard, J.

The intention of a testator, as expressed in his Avill, must control its construction. This is settled doctrine, where the intention is consistent with the rules of law, whether it be indicated by technical language, or in terms less appropriate. Though parts of a will be inconsistent with other portions, yet, if the general intention be apparent and sustainable, it must govern, although it exclude a particular intent, mode or object.

The general intention of the testator, in the clause of the will under consideration, is apparent, and is not in conflict with public policy, or the rules of law. It was, in the peculiar language of the 13th clause, to “ appropriate and set apart, and give, bequeath and devise the sum of one thous- and dollars, to be put at interest, and the interest thereof to be annually applied towards the support of Universalist preaching.” This was the general purpose, and in order to effect it practically, the testator proceeded thus, I hereby direct my executors to pay over said sum to the trustees of any Universalist society in said Sweden, provided any such society shall be formed within two years after my decease, and provided further, the additional annual sum of thirty dollars shall be raised by subscription or otherwise, and applied to the support of universalist preaching in said Sweden.”

Assuming that the plaintiffs constitute the society contemplated by the testator, they are not the legatees, or trustees of the sum thus set apart, by his direction, for the purpose declared. They were to receive, upon contingencies, the interest only, of the fund from trustees of their own appointment ; and they were but the cestui que trust of the interest, without the right to possess or control the principal. Their right to maintain this action is, therefore, not apparent. But waiving this consideration, and supposing they have all the rights and powers which their trustees could have in this respect, the question arises, whether they are entitled to the bounty of the testator.

The bequest was for charitable or pious uses, and was sufficiently certain in its purposes to be upheld. The executors, *427it would seem, were to retain the fund, until the contingencies occurred, upon which they were authorized to pay over to the trustees of the societies mentioned in the will; or until a failure of the conditions upon which the payments were to be made, and then they were to divide the amount among the heirs of the testator. The bequest might be upheld, although the objects of the charity were uncertain, and although the society, for whose use it was designed, was not in existence at the testator’s decease. Attorney General v. Oglander, 3 Bro. C. C. 166; Attorney General v. Wansay, 15 Ves. 232; 2 Story’s Eq. § 1169, 1170; Inglis v. The Sailors' Snug Harbor, 3 Peters, 114; Sohier v. The Wardens, &c., of St. Paul’s Church, 12 Met. 250.

But the conditions, upon which the plaintiffs were to derive a benefit from the bequest, have not been performed. As it respects them, the bequest was in its nature executory. Yet there is no evidence that they have appointed any trustees, to receive the bounty; nor is the evidence satisfactory that the annual sum of thirty dollars has been raised and applied according to the provisions prescribed in the will. In reference to these, the language used is, “ upon a failure of all the above conditions, the above sum of one thousand dollars to be equally divided among my heirs, by my executors.” Thus showing that the testator intended, as before suggested, that his executors should retain the amount until the contingencies had occurred upon which the bequest might become absolute to either of the societies, or their trustees, and until, in case of the plaintiffs, the additional annual sum of thirty dollars had been raised within the time specified, and applied “per annum,” by an investment, it may be, that would yield that amount yearly, for the purposes mentioned; or until the time had elapsed within which those contingencies could occur, and the heirs might be entitled to a dividend; thus clearly showing that the conditions were precedent, and not subsequent to the payment and reception of the bequest.

Upon the construction of the will contended for by the plaintiffs, they were entitled to the bequest, as soon as the *428society had been formed, and the executors were not to be influenced in their proceedings by any failure of the conditions prescribed by the testator. For, after they had legally parted with the fund, and it had been appropriated, their duties and authority in respect to it would have terminated. And thus the plaintiffs would render the bequest unconditional and absolute. This, however, would be opposed .to the language of the will, and its import, and in direct conflict with the manifest intention of the testator. Non voluii et non dixit.

Shepley, C. J., and Tenney, Wells and Appleton, J. J., .concurred.

Plaintiffs nonsuit.