Fay v. Howe

[600]

CHIPMAN, C.

Defendants are executors of the last will of Henry K. Winchester, deceased. Among other provisions of the will was the following: “Thirteenth: I also leave in trust with my nephew, Waldo- B. Fay, five thousand dollars ($5,000), the income to be used in aid of deserving aged native-born in the town of Southboro, Mass., needing such aid; to be used.as in his judgment he may think best.”

The cause was submitted on an agreed statement of facts, and the court adjudged that “the bequest is a valid one, and the defendants are hereby directed to pay the same out of the assets of the estate of said decedent in like manner as other bequests of recognized validity of equal standing under the will of decedent.” Defendants appeal from the judgment.

Appellants concede that trusts for charitable uses are good, and that one of the characteristic features of such .trusts is, that the number of the beneficiaries is indeterminate. But it is contended “that, although the number of individuals in the «class cannot be determined, the class itself must be sufficiently defined, so that it. can be determined whether any specific individual belongs to that class.” It is further contended “that a trust is void for uncertainty whenever its provisions are such that a court of equity could not determine whether or not the trustee was diverting the fund from the purposes intended by the giver; and that the test is, Can the court determine in a particular instance whether a given person is the beneficiary intended? Judging by these principles, appellants maintain that the bequest to Waldo B. Fay is void for uncertainty.” After referring to some of the cases decided by this court, the learned counsel for appellants say that it is a question “awaiting judicial determination in this state how great definiteness in the designation of the class of beneficiaries is required.” Charitable uses embrace an almost unlimited field of human benefactions, and the classes themselves are many and varied. The multitudinous character of both the classes and the beneficiaries precludes the possibility of formulating with reasonable accuracy any rule of universal application prescribing the exact definiteness with which classes of charitable trusts must be designated.

If the contention of appellants is, that the court must be satisfied with the selection of the beneficiary made by the trustee, there would be little difficulty in the court’s determin