Opinion
11-23-1905
MANSON v. JACK et al.
Vivian M. Lewis, for complainant. Charles C. Scott and Daniel L. Campbell, for defendants.
Suit by John E. Hanson, as executor of May Dalling, deceased, against John Bruce Jack and others, for the construction of the will of testatrix. Decree advised.
Vivian M. Lewis, for complainant. Charles C. Scott and Daniel L. Campbell, for defendants.
STEVENSON, V. C. The will of Mrs. May Dalling, deceased, contains the following residuary clause: "The balance of my estate, after paying all expenses and making such improvements on my burying lot as my executor deems advisable, erecting additional headstones or footstone, I leave to my executor to be disposed of as he shall think expedient. I appoint my friend John E. Manson, of Paterson, N. J., executor under this my last will and testament"
1. The complainant, the executor of this will, asks for a construction of the clause above set forth, in order that he may be instructed as to the disposition of the residue of the estate now in his hands. The testatrix made a very extensive and minute distribution of portions of her estate among nearly 40 legatees, including her own heirs and next of kin and the next of kin of her deceased husband, and a large number of other relatives and friends. There are 24 pecuniary legacies, ranging in amount from $100 to $1,000 each, and aggregating over $9,000. There are also 15 specific legacies of clothing, jewelry, watches, etc. All the legacies have been paid, and the fund now remaining in the hands of the executor, out of which considerable counsel fees and other expenses must be paid, amounts to about $3,800. This residuary clause is in sharp contrast with that large class of residuary clauses which have been before the courts, in which the intention is disclosed that the devisee or legatee named shall dispose of the property given to him as the testator has directed or will direct, or in accordance with the wishes of the testator in some way expressed or to be expressed. The executor is left free to dispose of the residue which may be left in his hands for his own benefit, or for the benefit of any other person or persons. The complainant was an old friend of the testatrix. He had managed her business affairs for many years, and had received no compensation. The testatrix was 80 years of age when she made her will, and was a widow with no living descendants. She was intimate with the complainant's family. It was very natural, under the circumstances, that the testatrix should desire to make a testamentary gift to the complainant, and the form of that gift, so far as the words by which it is manifested call for consideration, may have resulted from the fact that the legatee in this case was to be the executor of the will. The testatrix is contemplating that she is leaving her estate in the hands of her old friend, whom she makes her executor, to be disposed of to a large extent by him according to her directions among 40 different persons, and with this idea in her mind she passes on immediately to say that she leaves the residue to this friend, to be disposed of as he shall think expedient. When a man is put in possession of property, with the right of applying it to his own use or to any other use as he may think expedient, he is the owner of the property. The gift of the unqualified power to dispose of the property is a gift of the property. 30 Am. & Eng. Ency. p. 370 (b), and cases cited in notes; Knight v. Knight (1894) 162 Mass. 460, 38 N. E. 1131. Even if the complainant were not shown to be a very natural object of the bounty of the testatrix, if the complainant had been a stranger to her, I think there would be difficulty in construing this residuary clause so as to find an intention of the testatrix that she should die intestate as to about a quarter of her estate, and that the executor to whom she "left" this residue was not to take the same beneficially, but was to exercise what would practically be a delegated testamentary power of distributing this residue among beneficiaries to be selected by him. The only witness sworn on either side was the complainant, who was called on behalf of the defendants, the next of kin, and testified without objection to certain conversations which he had with the testatrix, in which she undertook to give directions or suggestions in regard to the disposition which he should make of the residue of the estate when he should receive the same, or of some part thereof. This testimony plainly is irrelevant to the question under examination—the question how this residuary clause is to be construed. The residuary clause, when construed in the light of the circumstances which surrounded the testatrix when she made her will, in my opinion makes an absolute gift to the complainant.
2. Counsel for the defendants, who are the heirs and next of kin of the testatrix, argue in their brief that the testimony of the complainant shows that an attempt was made by the testatrix to create a trust by a verbal communication to the executor, and that such trust is void for uncertainty and indefiniteness, and that therefore the residuary estate is distributable "among the heirs at law and next of kin according to the nature of the estate." The court cannot entertain such a claim on behalf of these heirs and next of kin in this cause. No such claim is suggested by the pleadings, and the parties are not before the court who are essential in order that a final disposition of such a claim could be made. The bill sets forth the entire will and the circumstances under which it was executed, and prays that the court "may make such construction" of the residuary clause "that the said residue of the said' estate may be distributed." The only parties brought in as defendants are the heirs and next of kin of the testatrix. The bill does not contain the faintest suggestion that the testatrix gave the executor any instructions in regard to the disposition of the residue, or that the executor expressly or impliedly received the residue charged with a secret trust. The complainant does not ask the court for any instructions in regard to his duty in view of an alleged secret trust. The bill merely asks for a construction of the will according to rules which govern the construction of such instruments. Neither of the answers bases any claim to the residue upon the existence of a resulting trust. One of the answers merely submits to the court the construction of the residuary clause, precisely as such construction is submitted in the bill of complaint. The other answer alleges that the testatrixmade no disposition of the residue of her estate, and that the residuary clause is "entirely inoperative," and that therefore this answering defendant is entitled to her share of the residue "as one of the heirs at law and next of kin" of the testatrix. Neither answer suggests that the residuary clause operated to pass the residue to the complainant, but that on account of conversations or agreements between the complainant and the testatrix he (the complainant) holds the residuary estate, which under the "operation" of the will passed to him, charged with a trust. In order to found any such claim on behalf of these defendants as the one under consideration, it is necessary to consider and decide a case which is altogether beyond the scope of the bill, and not in any way injected into this cause, or even suggested until the final hearing. The bill is merely for the construction of the will and for such directions to the complainant, the executor engaged in the work of carrying out the provisions of the will, as are proper in view of the construction which the court may place upon those provisions. Whether a legatee or devisee takes under a will for his own benefit, or upon some trust which is not in any way disclosed in or suggested by the will, is not a question of the construction of the will. It is a question whether or not a trust has been created by a transaction which is altogether independent of the will, or by a series of transactions of which the making of the will was merely a part. It is true that the conversations between the testatrix and the complainant disclose three possible beneficiaries of a secret trust, if there was such secret trust. Whether, however, the talk which is thus testified to between the testatrix and the complainant amounted merely to more or less vague advice or suggestions in regard to what the complainant should do with the benefaction which the testatrix intended to confer upon him, or whether such talk, while not defeating the beneficial interest of the complainant as residuary legatee, operated to charge his legacy to a certain extent with benefactions to these three parties named, or any of them, or whether such talk charged the entire residuary estate with a definite trust for the benefit of these three parties, or in default of such definite trust with a resulting trust for the benefit of the heirs and next of kin, are questions which are entirely beyond the scope of this present suit. The testimony of the complainant was offered in order to aid the court in construing the will, and it was so understood by the counsel for the complainant, who justly claims in his brief that such testimony is entirely incompetent for such a purpose.
If, however, under the allegations of this bill and in view of the fact that the testimony of the complainant, which was entirely incompetent on the question of construction, was admitted without objection, there are grounds for urging that as between these litigating parties an adjudication might be made in this cause in regard to this alleged secret trust, the insurmountable difficulty still remains that there are necessary parties to such a controversy who are not brought before the court. The complainant certainly cannot obtain a decree that he takes the residuary estate beneficially free from any trust or charge in favor of the three parties named in his testimony when those parties have not been heard. The defendants, these heirs and next of kin, certainly cannot have this court in this cause adjudge, first, that the complainant takes the residue as a trustee; second, that the trust "is void for uncertainty and indefiniteness," although the intended beneficiaries are known and named, hut not brought into the suit or afforded an opportunity to be heard; and, third, that on account of the unenforceable character of the trust in favor of these parties, who are not afforded an opportunity to show that such trust is enforceable, a resulting trust exists for the benefit of these defendants. The result is that, as all the parties to the suit agree that instructions are necessary, the decree will instruct the complainant, as executor, to pay over the residuary estate to himself individually as legatee. Whether as residuary legatee the complainant will hold title for his own benefit, or for the benefit of these three parties named in his testimony, or some of them, or partly for his own benefit and partly for the benefit of these three parties, or wholly for the benefit of the heirs and next of kin, are questions which will not be in the slightest degree affected by any decree in this cause upon the pleadings and proofs as they now stand.