In re Stickney's Will

Fowler, J., delivered the opinion of the Court. The bill in this case was filed by some of the heirs at law and next of kin of the late Joseph Henry Stickney of Baltimore City, for the construction of certain parts of his will. By the first twenty-four clauses the testator gives “ moderate pecuniary legacies ” to his nephews, nieces and cousins. The remaining fifty-two clauses, with the exception of the twenty-fifth and twenty-sixth, with which we are not now concerned, relate to legacies to a large number of religious, charitable and educational corporations.

Many of these were attacked by the original and amended bills, but by amendments and by dismissing their appeals as to some of these clauses, the plaintiffs have left but two clauses, namely, the seventy-fifth and seventy-sixth for our consideration. The distinguished counsel representing the parties on both sides of the three appeals now before us, in addition to exhaustive oral arguments, have filed voluminous briefs. Both in the preparation of these briefs, as well as in the arguments at bar, they have shown such fullness of learning, thorough investigation, and such skill and zeal as to excite admiration. We cannot, however, give our assent to the view in reference to the seventy-sixth or residuary clause, which has been so ably advocated by the plaintiffs’ counsel.

The statement of their position, it appears to us, will demonstrate the futility of any successful attempt to maintain it in the face of the language of the testator on which it is founded. ⁹⁹ That position is that the residuary clause is void because it violates the rule against perpetuities. They contend, secondly, that the 75th clause is void for the same and other reasons ; and, thirdly, that, by the laws of the State of New York, under which the corporation which is the residuary legatee was incorporated, it has no corporate capacity in any view to take more of said residuary estate of the testator than will amount to or yield the annual income of ten thousand dollars. By the decree of the Court below it was held that the fourth and fifth sub-clauses of the 75th clause, and the whole of the 76th or residuary clause were void, and that the bequests thereby made should go to the plaintiffs and defendants, next of kin of the testator, in certain proportions not necessary now to mention. All the other parts of the will were sustained.

From this decree the plaintiffs have appealed so far as it sustains the seventy-fifth clause. Some of the defendants who are next of kin and have the same interest as the plaintiffs have taken a similar appeal. The residuary legatee has appealed generally from the decree. The question based upon the supposed fatal objection of a violation of the rule of perpetuity by the seventy-sixth clause; second, the incapacity of the residuary legatee to take, and, thirdly, the validity of the seventy-fifth clause will be considered in the order just named.

The language upon which the first contention rests is as follows: “ Seventy-sixth. — I give, devise and bequeath all the rest of my estate and property of every kind and description whatsoever, real, personal and mixed, and wheresoever situated or being, which I may own or have any right or title to, at the time of my decease, and that whether the same has been acquired by me heretofore, or shall be acquired by me hereafter, unto the body corporate, formerly existing as a corporation under the name of ‘ The American Congregational Union,’ but which has laid aside that name, and is now properly designated as the ‘ Congregational Church ¹⁰⁰ Building Society,’ which has its offices in the ‘ Bible House,’ in New York City, and in the ‘ Congregational House,’ in Boston, and of which H. O. Pinneo, Bible House, New York, is (or lately was) treasurer, and I expressly héreby require as a condition of the vesting of this legacy, that the said residuary legatee, the said ‘ Congregational Church Building Society,’ shall release all claim which it has against the ‘ First Congregational Church of Baltimore,’ for any fund or funds, or money owing by said church to it, and any and all claim and demand that it has to, for or against any and all property in the city of Baltimore now occupied by said church, and shall execute to such church a good and valid legal assignment, transfer and release thereof; and shall in like manner release the ‘ Second Congregational Church of Baltimore,’ and the ‘ Canton Congregational Church of Baltimore County,’ from any and all claims and demands which it has or shall have against either of said churches, or any property of any kind used by or in possession of said ‘ Second Congregational Church of Baltimore,’ or said ‘ Canton Congregational Church of Baltimore County.’ ” The words in which the condition is set forth “ and I expressly hereby require as a condition of the vesting of this legacy, that the said ‘ Congregational Church Building Society ’ shall release,” &c., are relied upon as the first and most important step in .establishing the existence of a perpetuity, for in them the plaintiffs, and the defendants who agree with them, have found a condition precedent. In short the contention is, notwithstanding the emphatic terms used by the testator in making the gift, that there was not and was not intended to be made, any immediate bequest; that the condition on which it was given is precedent and not subsequent, and that, therefore, the bequest is subject to the well-known rule against perpetuities and is void in its inception, because the condition is such that it must not necessarily-and under all circumstances be performed within the compass of a life or lives in being and twenty-one years and a fraction afterwards. ¹⁰¹ But, notwithstanding the force and skill with which this view was pressed upon us, we fail to find any substantial support for it in the language of the testator. After making such provision as he deemed proper for-.his relations, having no immediate family of his own, he proceeded to distribute the residue among a number of corporations of the character we have already mentioned — giving to the residuaiy legatee nearly one-half of his large estate. It was undoubtedly his intention that all of these legatees, including, of course, the residuary legatee should take, hold and administer-the legacies which he bequeathed to them respectively.

We should not, therefore, assume that he intended to violate a settled rule of law, and thus by the will itself frustrate his own declared intention; but, if the language which he used, upon its face, shows such an intention, it would, of course, be our duty to apply the rule “■remorselessly,” Gray on Perpetuities, 378, without regard to the consequences. But it is obvious that before this rule can be applied, the subject to which it is to be applied must exist. As was. said by Sir George Jessel, M. R., in Cunliffe v. Braucker, 3 Ch. Div. 394: “Courts do not regard the consequences of any rule of construction which they may have established, as presenting any objection to its application, when clearly called for." In other words, before the rule will be applied it must be clear that a perpetuity exists.

It must be conceded that this view, especially in its application to wills, is supported not only by reason but by the settled rules of construction and the great weight of authority. We do not understand there is any difference between counsel as to the rule, nor the circumstances under which it should be applied, but they differ widely as to the propriety and justice of its application to the will now before us, and the single question, therefore, upon this branch of the case is, admitting the rule here invoked by the plaintiffs, but that it is to be applied only when clearly called for, whether this is such a clear case as to demand its application. It is said that when the language “ is fairly capable ¹⁰² of two constructions, one of which would produce a legal result, and the other, one that would be bad for remoteness,” we should adopt the former rather than the latter and thus promote the accomplishment of the testator’s intention. Gray on Perpetuities, sec. 633.

While in the books there may be found much learning and many nice distinctions in the law relating to conditions precedent and subsequent, yet in the construction of wills we should constantly keep in mind the great object in cases like this, which is to ascertain the testator’s intention, and having discovered that to declare and enforce it if consistent with the rules of law. The question as to whether certain words create a condition precedent or subsequent is generally one of intention, and this is especially so when the condition is annexed-to a devise or bequest. It is said in Creswell v. Lawson, 7 G. & J. 240 , that there are no “ precise technical words necessary to the creation of a condition precedent or subsequent, either in a will or deed; but the same words may be construed to operate either as the one or the other, according to the evident sense to which they are used, as indicated by the instrument. Upon this principle,” continues the Court, “all the cases profess to have been decided.” It is equally well settled that if the thing to be done does not necessarily precede the vesting of the estate in the grantee, but may accompany or follow it, and may as well be done after as before the vesting of the estate, the condition is subsequent. 1 Jones Law of Real Estate, 619; Finley v. King's Lessee, 3 Peters, 346 .

It seems to us that it is evident.that the Acts here relied on as constituting conditions precedent, namely, the execution of certain releases, are capable of being performed either at the time, before or after the vesting of the bequest in the residuary legatee — whether performed at one time or the other, the result to all the parties interested would be the same, hence there is no reason to suppose that the testator intended the releases should be executed before the vesting of the bequest as a protection to the churches which were to be ¹⁰³ thereby benefited. Indeed it would seem upon the plainest principles of justice and equity that the acceptance of the bequest would ipso facto work an equitable release. An obvious construction to be placed upon the language is that when the executors should put the residuary legatee in possession, it was to execute the required releases, and if it should delay or for any reason refuse beyond a reasonable time to act, a Court of Equity would, at the instance of the proper parties, decree releases to be executed so as to give absolute protection. The supposed difficulty here, disappears when we apply the rule as laid down by C. J. Marshall in Finley v. King's Lessees, supra.

If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent, in which case, of course, no perpetuity arises, for the obvious reason that the bequest vests at once upon the death of the testator and cannot, therefore, be said to be put and kept extra commercium. But it would seem, also, that the form of the gift, “ I give, devise and bequeath,” shows that a present and not a future estate was intended, and that in the contemplation of the testator the residuary legatee was to take at once upon his death, and not at some remote uncertain time in future beyond the period allowed by law. Eldridge v. Eldridge, 9 Cush. 519 ; 2 Washburne on Real Prop. 449. The remaining words, "and I expressly hereby require as a condition of the vesting of this legacy,’ ’ must be construed so as to effectuate the general intention unless it is clear that intention is contrary to the rule against perpetuity.

But “ Courts are averse to construing conditions to be precedent where they might defeat the vesting of estates under a will.” Pennington v. Pennington, 70 Md. 418 . And especially is this so “ in regard to residuary bequests.”