Summary
In Kerrigan v. Tabb (N. J. Ch. 1898) 39 Atl. 701, Vice Chancellor Emery held that a legacy to a priest, to be used for masses for the repose of the soul of the testator, did not lapse on account of the death of the priest before the death of the testator, and that another trustee should be appointed to carry out the charitable trust.
Summary of this case from Brown v. ConditOpinion
02-17-1898
KERRIGAN v. TABB et al.
Mr. Lintott, for complainant. David Kay. for defendant Tabb. Guild & Lum, for defendant St. Michael's Church. M. T. Barrett, for defendants Smith and others.
Bill between Michael Kerrigan, executor of the will of Bridget Madden, deceased, and Thomas Tabb and others, for the construction of a will.
Mr. Lintott, for complainant. David Kay. for defendant Tabb.
Guild & Lum, for defendant St. Michael's Church.
M. T. Barrett, for defendants Smith and others.
EMERY, V. C. The bill in this case is filed by the executor of Bridget Madden for instructions on several points arising in the construction of her will, and I will state briefly my conclusions upon the several points.
The first question is whether a legacy given by the will to Catherine Saul, a sister of testatrix, and which would have come to her had she survived testatrix, has lapsed by the death of Catherine Saul in the lifetime of testatrix, and has thus become part of the residue of her estate, or whether, by the terms of the will and codicil, the executors or administrators of Catherine Saul are entitled to the legacy, as legatees intended by testatrix to be substituted in Catherine Saul's place, in case she did not survive. The provisions of the will and codicil bearing upon this question are in the first place the original will, in which, after providing for the payment of her debts and some pecuniary legacies, the will provides: "Thirdly. I give and bequeath to my beloved sister, Catherine Saul, of Phœbus, P. O. Elizabeth City, Virginia, if she survive me, the sum of eight hundred dollars not survive me, this bequest is to go into the and my feather bed. If. however, she do nesidue of my estate." The entire residue of her estate, after deducting $100 for a tombstone, was given for charitable purposes—masses for the repose of her soul. On Tune 10, 1892, the testatrix made a codicil, by which, after confirming all the provisions of her will, except so far as in conflict with the codicil, she provides: "First.
I give and bequeath to my friend Mrs. Stoffs, wife of William A. Stoffs, the sum of two hundred dollars, and the bequest of my sister mentioned in said will I hereby give to her and her executors and administrators absolutely." The bequest of the residue made by the will is then revoked, and, after giving $1,000 to the Rev. Patrick Leonard, to be expended for masses for the repose of her soul, the residue is given to St. Michael's Church of Newark. Catherine Saul died after the execution of the codicil and before the testatrix. She left a will, but without naming an executor, and the defendant Tabb has been duly appointed administrator cum testamento annexo. The question is whether he, as such administrator, is entitled to the legacy, or whether it has lapsed. The question is altogether one of the intention of the testator, and is to be solved by the construction of the will and codicil. And the special question is whether, upon the entire will and codicil, the gift to the executors and administrators is to be considered as substitutional, or whether the words, "and her executors and administrators absolutely," added to the gift of testatrix's sister, are words merely of limitation or description of the estate or interest given to her sister. If, on the whole will and codicil, the former construction is to be placed on the words, then the legacy did not lapse, while it did so lapse upon the latter view.
The briefs of counsel have presented very fully the cases and authorities which state the rules applying to these cases, so far as general rules can be said to be laid down in reference to the decision of a question which depends ultimately upon the construction of the paper itself, and these rules, as I understand them, are that, ordinarily, and in the absence of anything further to indicate the intention of a testator that a legacy should not lapse, a gift to A., his executors or administrators, would lapse in case of A.'s death before testator, and not pass to his executors or administrators, for the reason that by a general rule of construction, these words, "executors and administrators," are words descriptive merely of the estate or interest bequeathed to A. 2 Williams, Ex'rs (Rand. & T. Ed.) p. 490. But if the testator, upon the entire will, has sufficiently shown his intention that the legacy shall not lapse in case of death, and a substitute legatee is provided, this intention will be carried out. Id. p. 501. The practical question of construction on each will is whether the intention (1) that the legacy should not lapse, and (2) should go to a substituted legatee, sufficiently appears; and upon this question of intention of the testator to prevent a lapse, and to provide a substitute legatee, it is not necessary that the declaration be express, but the form of the bequest itself is often held to indicate sufficiently both of these intentions. Thus, where there is a bequest "to A. or his personal representatives," or to "A. or his heirs," the word "or," generally speaking, implies a substitution, and prevents a lapse. 2 Williams, Ex'rs (Rand. & T. Ed.) p. 501. And while a bequest simply to "A. and his executors," standing alone, would manifestly afford little or no evidence from which it could be concluded that the same intention existed, yet where, upon the construction of the whole will and codicil, these words used in the codicil, taken in connection with the previous gift in the original will, sufficiently show this intention that there should be no lapse, and that the executor is a substituted legatee, this form of gift is as effective by way of substitution, as if the words had been "A. or his executors." The words "and" and "or" are so often required to be substituted for each other in the construction of wills, to carry out the intention of testator, that the rule authorizing such substitution for that purpose is entirely settled. If, therefore, the intention to prevent lapse and substitution are manifest, "and" may, if necessary to carry these out, be read with the same effect as if it were "or." In the present case, I think it is sufficiently clear that these intentions appear. The codicil appears to have been made for the express purpose of changing the direction of the fund given by the original will on the death of the legatee during testator's life, so that it would not then go into the residue, and, by way of changing the character of the gift from one which would thus fall into the residue, the testator gives the legacy to her sister "and her executors and her administrators, absolutely." This addition to the original gift made by these words, which are substituted for the provisions of the original will as to what is to become of the fund there given to her sister, if she did not survive, which words are the only difference between the two, show, in my judgment, that the testatrix, desiring by her codicil to substitute a clause which, while changing the direction of the fund after the death of her sister, should still provide for that same contingency, added the executors of her sister as the additional legatees of the fund, to take after the death of her sister, and for the further expression of her intention that the gift to her sister was not to be qualified, as in the original will, by failing, if she survived, the gift to the executors and administrators is a gift "absolutely," as distinguished from a gift liable to lapse. It appears to me, therefore, that these intentions of the testatrix to provide against lapse, and to make the executors additional legatees, sufficiently appear, and that the executors or administrators are entitled to take as substituted legatees.
The second question raised is whether the executor or administrator c. t. a. takes a personal interest as legatee, or whether he holds it as assets of his testator's estate. On this question I hold that he takes, not for his personal benefit, but for the estate. Authorities for this view, if necessary, are abundantly cited by counsel for the administrator.
The third question is whether the legacy given by testatrix in the codicil to Rev. Patrick Leonard, of the sum of $1,000, to be expended for masses for the repose of her soul, had lapsed and fallen into the residue, either by reason of his death before testatrix or by reason of the bequest being invalid. On the first point my conclusion is that, inasmuch as the Reverend Patrick Leonard received the gift on a trust to expend the money for masses, and not for his personal participation therein, the gift is a trust, which may be carried out as intended by the appointment of another trustee to expend the money. The main declared object of the testatrix's will is thus preserved, and the legacy does not lapse. This course was pursued in Re Schouler, 134 Mass. 426, where the money was to be expended for masses and other charities, and a new trustee was appointed in place of the deceased trustee. Upon the second point, the validity of the bequest, it was said that the purpose of the bequest was illegal, as being a superstitious, and not a charitable, use. But a use of tills kind, based on the doctrines and practices of a Christian church, and which does not in any wise conflict with or impair any of the rights or obligations arising under the authority of the state, its constitution or laws, must be considered a religious use. This seems to be the view of the American authorities. 5 Am. & Eng. Enc. Law, 928, and cases cited, inter alia, In re Schouler, supra, Rhymer's Appeal, 93 Pa. St. 142, and others. The general view of these authorities is that the validity of such bequests is assured by the provisions of the federal and state constitutions relating to freedom of conscience and religious belief. Const. U. S. Amend. 1; Const. N. J. art. 1, §§ 3, 4. See, on this point, Holland v. Aleock, 108 N. Y. 312, 329, 16 N. E. 305, 313, Rapallo, J. Another trustee should therefore be appointed to carry out this trust, and, when appointed, the executors of Patrick Leonard will be directed to pay over the fund to him, following, in this respect, the course taken under similar circumstances in Re Schouler, supra. This appointment of a new trustee should not, however, be made in this suit, but on proper proceedings for that special purpose.