that if his purpose could not legally be accomplished as provided by his will, it was his will that an act of the Legislature be sought to organize a corporation to carry out his purposes. Five years after testator's death, a law was passed creating a corporation to act as trustee to carry out the will. The Supreme Court held that if the plan of the testator could not be carried out as at first he had contemplated, nevertheless the provisions for the corporation removed all the difficulty. Speaking on the point urged against the trust that it would not become effective at the death of testator, since the corporation was not in existence and the property accordingly would not vest for trust purposes, the court said:
"And what objection can there be to this, as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency? By an executory devise, a freehold may be made to commence in futuro, and needs no particular estate to support it. * * * [ 3 Pet. at page 115, 7 L. Ed. 617].
"The devise, then, as also in the case now before the court, does not purport to be a present devise, but to take effect upon some future event. And this distinguishes the present case from that of the Baptist Association v. Hart's Executors, in another important circumstance. There, it was a present devise, here, it is a future devise. * * * [ 3 Pet. at page 116, 7 L. Ed. 617].
"In Thellusson v. Woodford 4 Ves [Jun.], 325, Buller, Justice, sitting with the Lord Chancellor, refers to and adopts with approbation, the rule laid down by Lord Talbot, in Hopkins v. Hopkins -- that in such cases (on will) the method of the courts is not to set aside the intent, because it cannot take effect so fully as the testator desired, but to let it work as far as it can. Most executory devises, he says, are without any freehold to support them; the number of contingencies is not material, if they are to happen within the limits allowed by law. That it was never held, that executory devises are to be governed by the rules of law as to common-law conveyances. The only question is, whether the contingencies are to happen within a reasonable time or not. The master of the rolls, in that case says (p. 329), he knows of only one general rule of constructions, equally for courts of equity and courts of law, applicable to wills. The intention of the testator is to be sought for, and the will carried into effect, provided it can be done, consistent with the rules of law."
To the same effect is Ould v. Washington Hospital for Foundlings, 95 U.S. 303, 5 Otto 303, 24 L. Ed. 450.
There were two contingencies in the will of the testator in the case at bar, one (in the event the life tenant predeceased testator) which would bring about the commencing of the charitable trust in praesenti; the other (in the event the life tenant survived testator) which would bring about the commencing of the charitable trust in futuro. The latter contingency, anticipated by testator, was what in fact occurred. Therefore, it seems clear that what eventuated in point of fact upon the death of testator was the contingency which created an executory devise or disposition of property. No particular estate was needed to support such an executory disposition of property; title was vested in trustees holding for the life tenant during the time before the executory disposition became effective. When it did become effective, the laws of all jurisdictions concerned not only approved the disposition as valid, but had in effect a means of bringing about supervision of the administration of the trust. It seems to me, therefore, that under the law established by the decisions of the courts, the charitable trust created by testator must be upheld.
Aside from the legal authorities, the reasoning in support of the validity of the trust in the present case seems to me to be infallible. The court of the District of Columbia, testator's domicile, finds a will of its citizen, proper in all respects, according to its laws. It is the duty of the court to give effect to the testator's wishes, if possible. Having found the laws of its own jurisdiction approve the provisions of this charitable trust, the court looks to the laws of the places where the provisions are to be carried out. Perhaps it is true those laws formerly did not provide the means of administering or supervising trusts of this character. But they now do. Moreover, trusts of this character are favored in those jurisdictions. What possible reason, then, can be advanced to frustrate testor's avowed wishes? No rule of law is offended, the objects are laudable in all the jurisdictions concerned, there are present means of bringing about administration of the trust in all jurisdictions where they are to be carried out, there are courts available to supervise them. Under these circumstances, reason and logic compel the sustaining of the trust.
The judgment of this court, therefore, will uphold as valid testator's will, insofar as it creates a charitable trust.
© 1992-2004 VersusLaw Inc.