
    Hill’s Ex’ors v. Bowman and Wife and Others.
    July, 1836,
    Lewisburg.
    Wills — Construction — Designation of Testator’s Bounty — Certainty— “Members of Family” — Case at Bar. — A testator, after devising lands to his execn-tors to sell, devised and bequeathed as follows — “I give the money arising from the sales of the lands and tenements aforesaid and the collection of my outstanding debts, as well as all moneys which I may have on 'hand at the time of my death, in trust to my said executors that they shall so dispose of the same for the purpose of aiding any of the members of the family, or any other person or persons who may be in distress, and whom they may think I would myself have assisted in such cases, confiding the disposition of the said trust fund entirely to their discretion:” the heirs and distributees, alleging the devise and bequest to be void for uncertainty, file a bill for partition of the realty and distribution of the personalty, and the circuit court decrees according to the prayer. — In the court of appeals, Decree reversed and bill dismissed, the words the members of my family being considered sufficiently certain.
    Thomas Hill, by his will bearing date the 15th of January 1827, after certain specific devises and bequests, devised and bequeathed as follows :
    *“I appoint the reverend Joseph Pedigo of the county of Henry, and m3' two nephews William Jones and Zadock Bernard of the county of Franklin, executors of this my last will and testament, and I do hereby give to my said executors, in trust to be sold by them, and the proceeds applied as is hereinafter directed, the following lands and tenements which belong to me and have not been herein devised otherways, to wit, all my lands consisting of several parcels adjoining each other, and also adjoining the town of Mount Pleasant at Franklin courthouse; also all my lots and improvements in said town, comprehending my interest in the four lots owned jointly by myself and the executors &c. of James Calloway deceased; also one other tract of about ninety-six acres of land in the said county, on the road towards Henry old courthouse; also my undivided moiety in a tract of land in the county of Montgomery, patented jointly in the name of John Ferguson and myself, containing about twenty-two hundred acres: and my said executors are empowered and required by these presents to make the sale of the aforesaid tracts of land and tenements, at such times and on such terms as they in their discretion shall judge most advantageous to those who may be interested in the distribution of the proceeds, and to make legal and complete titles to purchasers thereof; but no person or persons whatsoever who may be so interested in the distribution of the proceeds, shall have it in his, her or their power to require or compel m3' said executors to sell and dispose of the aforesaid lands and tenements at any other time or times, or on any other terms and conditions, than my said executors shall themselves deem expedient; hereby confiding those matters entirely to them, and to none others.
    And whereas there are several outstanding debts due to me, I will and direct that my said executors, immediately after my death, shall proceed to collect the same *as speedily as they may think proper, having regard to the principles of humanity towards the debtors, and I give the money arising from the sales of the lands and tenements aforesaid and the collection of the said outstanding debts, as well as all moneys which I may have in hand at the time of my death, in trust to my said executors that they shall (as it is my will and desire) so dispose of the same for the purpose of aiding any of the members of my family, or any other person or persons who may be in distress, and whom they may think I would myself have assisted in such cases, confiding the disposition of the said trust fund entirely to their discretion.”
    The will was proved and admitted to record in the court of Franklin county on the 5th of February 1827. Two of the executors qualified as such on that day, and the other at the next succeeding term.
    During the same year, John Bowman and Parized his wife, and others, claiming to be heirs and distributees of the decedent Thomas Hill, filed a bill in the superiour court of chancery holden at Lynchburg, against the executors of the said Thomas Hill, and other defendants who were heirs and distributees, insisting that the devise and bequest to the executors was void for uncertainty, and seeking a partition and distribution of the estate so devised and bequeathed,in like manner as if the decedent had died intestate as to the same. The cause was removed from Lynchburg to the circuit court of Franklin, afterwards to Floyd, and then to Montgomery. The circuit court of Montgomer3r declared the devise and bequest to the executors to be too vague and uncertain to be carried into effect, and in conformity with the prayer of the bill, decreed partition of the real estate amongst the heirs, and ordered an account of the executorship with a view to a distribution of the personalty. From this decree an appeal was allowed on the petition of the executors.
    ^Johnson, for the appellants,
    said, there were numerous cases shewing that to give an absolute power to dispose, is equivalent to giving an absolute right to property;- and it would be difficult to avoid the conclusion that such is the effect of the will in this case. But the executors make no such claim. The3r ask only the privilege of executing the trust. The will is sufficiently certain as to the decedent’s family, if not as to other persons in distress; and the uncertainty of a part cannot destroy the parts which are certain. The words relations, family, kindred &c. might originally have been thought uncertain, and embracing all relations to the most distant cousin; but the courts have given certaihty to these uncertain words. To preserve the great object of the will, they have confined their generality .to the degrees of the statute. The cases shew that the courts anxiously search for -a rule to preserve the will, rather than destroy it. They strive to confine the power within legal limits, rejecting what would make it void for generality. Sugden on Powers 147, 481, 484-5-6, 519, 523, 524; Routledge v. Dorril, 2 Ves. jun. 358; Mahon v. Savage, 1 Sch. & Lef. Ill; Gower v. Mainwaring, 2 Ves. sen. 87; Widmore v. Woodroffe, Amb. 636; Green v. Howard, 1 Brown’s Ch. Rep. 33, note; 4 Vin. 485; Cole v. Wade, 16 Ves. 27; Cruwys v. Colman, 9 Ves. 319.
    Taliaferro, for the appellees.
    The words who may be in distress, relate as well to members of the decedent’s family, as to other persons. They control the whole clause, and the whole is therefore void for uncertainty. Gallego’s ex’ors v. Attorney General, 3 Heigh 450. Can the court strike out the words 1 :or any other person or persons who may be in distress and whom they may think I would myself have assisted in such cases?” To do so would be not to carry the will into effect, but to make a will. Francis’s Maxims 162. It is clear that those words enlarge the sense before expressed. Suppose the executors were to give the whole surplus to a -particular daughter, already largely provided for: would this be right? Or suppose there were no members of the family in distress: could the executors at once give them the surplus? If they could not, it is because the words who may be in distress are efficient and controlling. Supposing they could not, the argument for the appellants is unsound, for, to support that argument, it must be considered that the members of the family take a vested interest. This position cannot be sustained. Ho one can look at the whole clause together, and not see that the executors were intended to have a discretion. They are not bound to give something to every member of the f amity. The trust is personal, to be executed in the lifetime of the executors. Such distresses only were contemplated, as might happen in that time.
    Johnson, in reply.
    Suppose the testator had said, his son John shall have power to give a particular tract of land to his son Tom or to his daughter Betsey, and Tom •dies; cannot the land be given to Betsey? Or suppose, in England, a power is given to appoint among relations, and some are aliens; would that disable the donee from giving to those capable of taking? Take it that both branches of the power are valid: then the executors may give the whole to members of the family. Can it be that they shall not have power to do this, when the latter branch is void for uncertainty? The words who may be in distress need not be read as applying to members of the family; but if they be applicable, the court will find, by the latest cases, that the words poor, distressed, &c. are decided to be surplusage, and the will is construed as if no such words were used.
    
      
      WilIs — Object of Testator’s Bounty — Certainty of Designation. — Tn the principal case it was field that the words, “the members of my family,” in the will which was under construction, were sufficiently certain to designate the objects of the testator's bounty. To this point the principal case is cited with approval in Phillips v. Ferguson, 85 Va. 514, 8 S. E. Rep. 241.
      
        In Whelan v. Reilly, 3 W. Va. 610. it is said it is apparent from the language used that the testator meant children in the use of the word family. Citing Hill v. Bowman, 7 Leigh 650. To the same effect, see Stuart v. Stuart, 18 W. Va. 685, citing the principal case and Whelan v. Reilly, 5 W. Va. 356.
      And in Fontaine v. Thompson, 80 Va. 232, citing the principal case it is held that a devisee to “next of kin” is sufficiently certain and valid to enable such next of kin to take. And it is also said, this was the substantial result in Frazier v. Frazier, 2 Leigh 642.
      See monographic note on ‘ wills.”
    
   CARR, J.

This case turns wholly upon the construction of the last clause in the testator’s will, which, after making provision for his wife and children, vests a considerable fund in his executors as trustees for the purposes expressed by the following words “They shall *'(as it is my will and desire) so dispose of the same, for the purpose of aiding any of the members of my family, or any other person or persons who may be in distress, and whom they may think I would myself have assisted in such cases, confiding the disposition of the said trust fund entirely to their discretion.”

The plaintiffs filed their bill, insisting that this trust was void in toto for uncertainty, and praying that the fund might be distributed according to the statute. The court below, being oí opinion that this clause was too vague and uncertain to be carried into effect, and therefore void, ordered a distribution according to the prayer of the bill: and from this decree the appeal is taken. As nothing is more consonant to justice and the respect we feel for the will of the dead, it has always been the anxious effort of courts to carry into effect last wills and testaments; and it is only when such wills violate the rules of law, or are utterly uncertain, that this is refused. As a proof of this anxiety, many cases might be cited. If a man creates a Lrust for the benefit of his family, his relations, his kindred — all these descriptions (though, taken literally, they are perfectly indefinite) have received such a construction as restrains them within certain limits, and thus sustains and effectuates the will of the testator. And if one part of a devise be void for uncertainty, and another part good, even though both be contained in the same clause, they will, if separable in their nature, be divided, and the good part sustained. The cases cited by the president shew this as fully as authority can shew any thing. I will not repeat them: but I may refer to Sugden on Powers 518, and many pages following, where all the cases are collected, and the matter treated with the usual ability of that valuable writer. That part of the clause in the will before us, which empowers the trustees to give a part of the fund “to any other person or persons who may be in distress,” is clearly void for uncertainty; but why should *it vitiate the foregoing part, for the benefit of the members of testator’s family? It is answered, because the word or couples the succeeding with the foregoing part of the sentence, and makes the word distress relate back to “members of my family.” Suppose this construction were agreed to: does any one suppose that a trust raised by a testator tor the benefit of any members of his family who might be in distress, would be void? The books teem with such cases; and the only question about them is, whether the words in distress are not wholly inoperative, and the distribution of the fund to be made without any regard to them. The cases are both ways. Sugden (p. 521), after stating them, concludes thus: “Upon the whole then, there appears to be great reason to contend that the true rule is, that the epithet poor, necessitous, or the like, is merely nugatory, although certainty there is a considerable weight of authority in favour of the contrary doctrine.” But all the books agree that such a trust is valid; and surety, if so, the connecting it with a trust void for uncertainty cannot vitiate it.

It was no part of the purpose of the bill to take the trust fund from the trustees, for any other cause than that the trust was void and the fund distributable. That having failed, the bill must be dismissed, and the fund left in those hands to which the testator has confided it — a trust with which the court would interfere only in case of a defect of trustees, or of their refusing to execute, or being in the course of violating the trust.

TUCKER, P.

Thomas Hill, by his will made in 1827, after various provisions for his wife and children, devises a considerable estate, both real and personal, to his executors, in trust to sell the real estate at such times as they in their discretion shall judge most advantageous to those who might be interested in the distribution ; and gives the proceeds of sales, and the debts *whicb should be collected, and his moneys on hand, in trust to his executors that they should so .dispose of the same for the purpose of aiding any of the members of his family, or any other person or persons who may be in distress, and whom they might think he would himself have assisted in such cases, confiding the disposition of the said trust fund entirely to their discretion.

It is agreed on all hands that the words any other person or persons who may be in distress, are too vague and uncertain, and that the declaration of trust as to such persons is altogether inoperative and void. Gallego’s ex’ors v. Attorney General, 3 Leigh 450. But it is contended on the part of the appellees, and so has it been decided by the circuit court, that the indefinite character of this provision rendered void and inoperative the whole of that clause in the will, and that the heirs and dis-tributees were entitled to demand the property altogether discharged of the trust. On the other hand it is alleged, that the trust for the benefit of the testator’s family is sufficiently definite and precise, and is not vitiated by its connexion, in the same clause, with the vague and indefinite declaration' of trust in favour of persons in distress. I am clearly of this opinion. No authority in point has been produced to shew that a declaration of trust, in favour of certain definite objects of the testator’s bounty, is avoided because in the same clause there is a limitation to persons incapable of taking; or because there is a limitation to persons not certain and ascertained. Reason and' authority, on the other hand, conspire to say, that so far as the testator’s will is legal, intelligible and certain, it shall be effectuated, and what is illegal, insensible and uncertain shall be rejected. So also, where from any cause •the will shall fail of effect in part, it will not affect the residue, if they be not inseparably connected. Hence if a legacy be .given to two, one of whom dies in the testator’s lifetime, so that as to him the will cannot operate, *the whole will go to the survivor. 1 Roper 330. So far from avoiding the whole bequest, the death of the party in this case enlarges the survivor’s interest. So, doubtless, if it England lands were devised to be equally divided between A. B. and C. the last of whom, being a papist, would be incapable of taking, the whole would go to A. and B. and the devise to C. would be rejected. Eor-the rule as laid down by the judges is, that “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.” Ca. Temp. Talb. 50. And this is with good reason; for why shall a testator’s disposition of' his estate, in so far as it is intelligible, legal and certain, be defeated, merely because, in his ignorance, he has combined with it what is either insensible, or contrary to law, or too vague to be effectuated ’’ I can perceive neither good sense rior justice in such a course of decision, and I am happy to sustain myself by the opinion of a very able judge, in a case very parallel to-the present. In the case of Blandford and others v. Fackerell, before lord Thurlow, 4 Bro. C. C. 393, it appeared that Edward-Eackerell, by his will, having devised all his real estate to trustees, proceeded to direct that they should take a lease of a. house, and fit it up fora school “for the education of the children and grandchildren of his relations (naming them) and that they admit into the school such number of boys and girls as the income would be sufficient to educate.” The provision in behalf of the boys and girls was pressed by the attorney general, who, however, con-' tended that even if that were not valid, the-trust was good as to the children and grandchildren, and might, as to them, be separated from the charity, and go as far as-by law it could. He cited Doe e. d. Philips v. Aldridge, 4 T. R. 264. The lord chancellor said, “The first object of the testator is to give education to the children and grandchildren, and then that a benefit *should arise to others from his. bounty. I can only devise a plan for the objects of his bounty” (he means the children and grandchildren, as the decree shews) “and direct an inquiry who are such. As far as it tends to establish a general charity, it is void by the statutes-of mortmain.” It was accordingly declared that the devise and bequest was void as a devise for the general purposes of establishing a charity, but that the children and grandchildren were entitled to the benefit of the dispositions in their favour, so far as the objects thereof were not too-remote. No further authority can be necessary to shew that the court will effectuate a will so far as it can, though it lops off whatever is contrary to law or cannot be effectuated.

I am therefore of opinion, that the decree of the circuit court is clearly erroneous, and that the trust in this case is good, so far as it extends to the testator’s familj'. We are not' now called upon to decide who are comprehended by this term, nor whether the words “who may be in distress” are to be considered as applying to them. Nor are we called upon to limit or control the discretion of the executors as to the administration of the trust, or to hasten the execution of it by compelling them to proceed to sell &c. Whether the court could interfere with the free exercise of their discretion, may be doubted. 5 Cond. Eng. Ch. Rep. 482. But upon this subject I mean to give no decided opinion. The proper course for us is to reverse the decree with costs; and entering such decree as the circuit court should have made, the bill must be dismissed with costs, without prejudice to any proceeding which the plaintiffs or others may institute in relation to the execution of the trust.

BROOKE, CABELE and BROCKEN-BROUGH, J., concurred in the opinion of the jjresident.

Decree reversed and bill dismissed.  