1. Whether words in a devise constitute common law conditions
annexed to an estate, a breach of which or any one of which will
work a forfeiture, defeat the devise, and let in the heirs, or
whether they are regulations for the management of the estate, and
explanatory of the terms under which it was intended to have it
managed, is a matter to be gathered not from a particular
expression in the devise, but from the whole instrument.
2. The word "provided," though an appropriate word to constitute
a common law condition, does not invariably and of necessity do so.
On the contrary, it may give way to the intent of the party as
gathered from an examination of the whole instrument, and be taken
as expressing a limitation in trust.
Ex. Gr. Where a testator devised real estate to an
ecclesiastical society for its use or benefit, "
provided
that said real estate be not hereafter sold or disposed of," and in
connection and continuation added numerous minute directions in the
nature of regulations for the guidance of trustees whom he
appointed to manage it, and with a view to the greatest advantage
of the society,
held that the latter, being to be regarded
as mere limitations in trust, the former was a limitation in trust
also, not a common law condition.
3. Where, under a will in some respects peculiar, a devise was
made to a society for its use and benefit, but the possession,
superintendence, and direction of the estate, and the letting,
leasing, and management of the same was given to trustees who were
invested with power to perpetuate their authority indefinitely --
the only active duties of the society being to receive the rents
and profits for its use and benefit --
held that the legal
estate was in the trustees, not in the society.
4. The Legislature of Connecticut has the powers of an English
court of chancery to direct a sale of real estate devised to
charitable purposes, even though it be provided by the devise that
the estate shall never be sold in cases where lapse of time or
changes in the condition of the property or circumstances attending
it make it prudent and beneficial to the charity to alien the
specific land and invest the proceeds in other securities, taking
care, however, that no diversion of the gift be permitted.
5. Where the legislature, setting out reasons at large for the
exercise of such a power, directs a sale of land so devised and
provides for the secure reinvestment of the proceeds to the same
uses as directed by the will as to the estate sold, this Court
cannot revise the facts upon which the legislature has exercised
the power.
From the year 1702 or earlier and down to the year 1818
Page 72 U. S. 120
and afterwards, with some unimportant alterations, there existed
and was in force in Connecticut a statute thus:
"That all such lands, tenements, hereditaments, and other
estates, that either formerly have been or hereafter shall be given
and granted, either by the General Assembly of this Colony or by
any town, village, or particular person or persons, for the
maintenance of the ministry of the Gospel in any part of
this Colony, or schools of learning, or for the relief of poor
people, or for any other public and charitable use, shall forever
remain and be continued to the use or uses to which such lands,
tenements, hereditaments, or other estates, have been or shall be
given and granted according to the true intent and meaning of the
grantors and to no other use whatsoever, and also be exempted out
of the general lists of estates, and free from the payment of
rates."
This act being thus in force, William Stanley, of Hartford,
Connecticut, in October, 1786, made his will in the material parts
as follows:
"
Imprimis. I give and bequeath unto the Second Church
of Christ, in Hartford, such sum, to be paid
out of the profits
or rents of my real estate as hereafter mentioned as shall be
necessary to purchase a silver tankard of the same weight and
dimensions, as near as conveniently may be, of that one formerly
given said church by Mr. John Ellery, deceased,
the same to be
procured by my trustees, hereafter named, and presented to the
officers of said church, to be kept forever for the use and benefit
of said church, and my said trustees are to cause my name, coat of
arms, the time of my death and my age thereon to be engraved."
"
Item. I give and devise unto my niece, Elizabeth
Whitman, one piece of land &c., also one other piece of land
lying &c., and is part of the farm that formerly belonged unto
my honored father, Colonel Nathaniel Stanley, deceased, and lies in
the southeast corner of said farm and butts on a highway, unto the
said Elizabeth, and to her heirs and assigns forever,
provided she shall not make any claim upon my estate for
any services done for me."
"
Item. I do also give and devise unto may sister
Abigail the
Page 72 U. S. 121
use and improvement of all my real estate (except that part
thereof given unto her daughter Elizabeth) during her natural life,
with this reserve, that she shall not cut any of the trees growing
in that lot called Rocky Hill lot."
"
Item. After the decease of my said sister, Abigail
Whitman, I give and devise
the whole of my real
estate of every kind and description, except which is
hereinbefore given unto my niece, Elizabeth Whitman, unto the
Second or South Ecclesiastical Society, in the Town of Hartford, to
be and remain to the use and benefit of said Second or South
Society and their
successors forever, provided that said
real estate be not
ever hereafter sold or disposed of, but the
same be leased or left, and the annual rents or profits
thereof applied, to the use and benefit of said Society, and the
letting, leasing, and
managing of said estate to
be
under the management and direction of certain trustees
hereafter named by me, and their successors to be appointed in
manner as hereafter directed. And it is my will that the first
rents, profits, or avails issuing from said real estate shall,
by my trustees after it comes to their possession, be
applied to the purchasing of the aforesaid tankard. And it is my
will that so much of the rents, profits, or avails next issuing out
of my real estate, my said
trustees shall reserve in their own
hands as shall be sufficient to purchase and pay for the
one-half part of the price of a proper bell for the meeting house
in said Second Society, of the same weight and dimensions of that
in the North Meeting House, in said town of Hartford, and be
applied by my said trustees for that purpose,
provided
that the other part be procured by subscription or otherwise
without taxing the inhabitants of said society, and in case said
Second Society shall ever hereafter be divided, it is my will that
my said real estate be not divided, but remain entire and
forever to the said Second Society, and such part of said
society as shall hereafter secede or be divided therefrom are
hereby excluded from all the use and benefit of my said estate so
devised as aforesaid to said Second Society."
"And for the best management and direction of
my said real
estate I do hereby appoint my friends, W. Ellery &c.,
trustees to
superintend, direct, and
manage
said real estate for the use and benefit of said Second
Society in manner as above directed, and unto them, my trustees, I
do give authority and power to nominate their successors to said
trust, which is to be done in the manner and form following,
viz., that immediately after my
Page 72 U. S. 122
decease, they shall nominate and appoint some meet person or
persons, as occasion may require, into said trust and office; so be
it that at no time more than three persons shall act in said trust
or office or belong thereto at the same time. And all persons
successors hereafter to said trust and office shall at all times in
future have like power to
superintend, direct, and manage said
estate for said society, and in like manner to nominate and
appoint their successors in said trust and office and to
perpetuate said
trust for the benefit and use of
said society as occasion may from time to time require. And the
aforesaid real estate or any part thereof shall not be rented or
let for a longer term or lease than thirty years before the
expiration of the same, and said trustees and their successors
shall have full power to
let and lease said estate and to do
all other legal acts for the well ordering and management of said
estate under the limitation and restrictions as herein is before
expressed."
The ecclesiastical society named in the devise above quoted was
established by authority of the State of Connecticut for the
support of the Gospel ministry and the maintenance of public
worship, and with power for that purpose to hold real estate.
After the death of Stanley and his sister Abigail, who had the
life estate and whose death occurred prior to the year 1800, it
took possession of the premises, and down to 1852 the society and
trustees managed them in the manner directed in the will,
appropriating the income from time to time to the purposes of the
society. During the whole time, the premises were untaxed, the only
ground for the exemption being the provision in the act of 1702,
quoted on p. <|72 U.S. 120|>120. In the year 1852, the
Legislature of Connecticut, upon the application of the society and
of the trustees, passed a resolution reciting a memorial by the
church and trustees, showing the will, possession of the land
&c.
"Also showing that the said land has on it a great number of
buildings, owned by the tenants, built of wood, and in a decayed
state; that the land on which they stand has, by the lapse of about
three-fourths of a century, become valuable, some of which is in
the central part of the City of Hartford, and too
Page 72 U. S. 123
valuable to be improved profitably in any other way than by the
erection on them of permanent brick or stone blocks of buildings;
that the lessees cannot safely erect such buildings because of the
uncertainty of their tenure and because they would thereby place
themselves in the power of the owners, and that the owners have not
the means, and could not lawfully contract debts for the purpose of
building; that other parts of the estate are subject to other
embarrassments arising from the restrictions of the will, so that
said property has become unproductive and the income greatly
reduced, and the object of the testator in devising the property to
the society frustrated; that those embarrassments, both to the
owners and occupants, consequent on the restrictions in the will
are not likely to be removed, but will be increased by time unless
said land can be sold and conveyed in fee simple, and the proceeds
suitably invested."
"And praying the Assembly to authorize a sale and conveyance of
said land, under such guards and provisions as will secure the
application of the proceeds according to the true intent and
meaning of said will, as per petition on file."
This legislative record thus proceeded:
"This Assembly having inquired into the facts stated in said
memorial, find the same to be true, and do further find that the
most valuable portion of said estate is situated in a central part
of said City of Hartford, is covered with unsuitable wooden
buildings, and it is
for the interest of the people of said
city that more useful and valuable buildings should be built
thereon, and do grant the prayer thereof; and it is therefore"
"
Resolved that the said trustees and their successors,
together with D. F. Robinson as agent, shall have power, and they
are hereby authorized, to sell and convey the said lands in said
memorial mentioned, and such parts or proportions thereof as may
from time to time be advantageously sold, and to execute good and
sufficient deeds thereof in fee simple, with or without covenants
of seizin and warranty on the part of said society, subject to
liens or encumbrances, if any shall lie upon said property &c.
And the proceeds of such sales shall be by the trustees and agent
invested in good and sufficient bonds and mortgages of real estate,
of double the value of the amount invested; and the interest of
said proceeds shall be paid over to the treasurer of
Page 72 U. S. 124
said society, and shall be appropriated to the use of said
society in the same manner and subject to the same use as the rents
or income of said property are by said will required to be
appropriated, and for no other uses or purposes whatever. And all
mortgages or investments made as aforesaid from time to time, and
whenever such loans or investments shall be shifted or changed, the
securities shall be taken in the name of such trustees and their
successors and expressed to be for the use and benefit of said
society according to the will of William Stanley, deceased,
provided, however, that before any person or persons shall
proceed to make sale of said lands or any part thereof, he or they
shall become bound in a good and sufficient bond to the Judge of
Probate for the District of Hartford conditioned for the faithful
performance of the duty in the premises, and said trustees shall
also give the like bonds for the faithful performance of their
trust."
The heirs at law of Stanley had no notice of any of these
proceedings.
The trustees and agent accordingly, in August, 1852, by deed
reciting the legislative proceeding, and purporting to be made in
virtue of their said capacity of trustees and agent and of the
powers conferred by the act, sold and conveyed, with special
warranty, to one Colt, "all the right, title, and interest that
said Second Ecclesiastical Society &c., have or ought to have
in or to the above-described tract of land," one of the tracts
devised.
Colt having entered into possession, the heirs at law of Stanley
now brought ejectment against him for the premises. The court
instructed the jury that on the case presented the defendant was
entitled to their verdict, and judgment having gone accordingly,
the case was now here on error.
Page 72 U. S. 163
MR. JUSTICE NELSON delivered the opinion of the Court.
This is an action of ejectment by the heirs of William Stanley
to recover for breach of condition a tract of land, situate in the
City of Hartford, devised by the ancestor to an ecclesiastical
society and their successors on the 7th October, 1786, and one of
the principal questions in the case is whether or not the devise
was upon a condition which, when broken, would let in the heir, or
was a limitation or trust the breach of which would work no such
consequence.
The material parts of the will are as follows:
"I give and devise the whole of my real estate of every kind and
description . . . unto the Second or South Ecclesiastical Society,
in the Town of Hartford, to be and remain to the use and benefit of
said Second or South Society and their successors forever."
Then comes the condition or limitation upon the devise:
"
provided that said real estate be not ever hereafter
sold or disposed of, but the same be leased or let, and the annual
rents or profits thereof applied to the use and benefit of said
society, and the letting, leasing,
Page 72 U. S. 164
and managing of said estate to be under the management and
direction of certain trustees hereafter named by me and their
successors, to be appointed in manner as hereafter directed."
And after appointing three trustees and prescribing the manner
of the appointment of their successors, and prescribing also their
authority and duties, the testator adds:
"And the aforesaid real estate, or any part thereof, shall not
be rented or let for a longer term or lease than thirty years
before the expiration of the same."
And another part of the will is as follows:
"And in case said Second Society shall ever hereafter be
divided, it is my will that my real estate be not divided, but
remain entire and forever to the said Second Society, and such part
of said Second Society as shall hereafter secede or be divided
therefrom are hereby excluded from all the use and benefit of my
real estate, so devised as aforesaid to the said Second
Society."
These are the several clauses in the will relating to the
management of the estate, following the proviso, and which, taken
together, constitute the conditions, limitations, or qualifications
annexed to it, and to the enjoyment of the estate by the
society.
All of them may not be equally important, but we are bound to
assume that each and all of them was regarded by the testator as
material in the regulations which he has seen fit to adopt and
carry into his will.
These conditions or limitations following the proviso are
briefly:
1. The estate is not to be sold or disposed of, but to be leased
by trustees, and the rents paid over to the society.
2. The leases are not to exceed thirty years in any one
term.
3. The estate is not to be divided in the event of a division of
the society, and
4. It is to be managed and directed exclusively by trustees who
are appointed in the will and by their successors, the surviving
trustees to appoint when a vacancy happens.
The question is whether these are strict common law conditions
annexed to the estate a breach of which or of
Page 72 U. S. 165
any one of them will work a forfeiture, defeat the devise, and
let in the heir, or whether they are regulations for the guide of
the trustees and explanatory of the terms under which he intended
the estate should be managed with a view to the greatest advantage
in behalf of the society.
The difference between the two interpretations and the
consequences flowing from them is very material. As we have seen, a
condition, if broken, forfeits the estate and forever thereafter
deprives the society of the gift, and not only this, but the heirs
become seized of the first estate, and avoids, of course, all
intermediate charges or encumbrances and takes also free and clear
all the expenditures and improvements that may have been laid out
on the property.
On the other hand, if these limitations are to be regarded as
regulations to guide the trustees and explanatory of the terms upon
which the devise has been made, they create a trust which those who
take the estate are bound to perform, and, in case of a breach, a
court of equity will interpose and enforce performance. The estate
is thus preserved and devoted to the objects of the charity or
bounty of the testator even in case of a violation of the
limitations annexed to it. A fraudulent or unfaithful trustee will
be removed and another appointed to his place. A diversion of the
fund will be arrested and an account compelled for any waste or
improvident use of it.
Mr. Sugden, speaking of conditions, observes, that what by the
old law was deemed a devise upon condition would now, perhaps, in
almost every case, be construed a devise in fee upon trust, and, by
this construction, instead of the heir's taking advantage of the
condition broken, the
cestui que trust can compel an
observance of the trust by a suit in equity. [
Footnote 1]
In the recent case of
Wright v. Wilkin, in the Queen's
Bench, the court approved of this observation of Mr. Sugden, and in
that case construed a devise, on express condition in terms,
looking through the whole will, and regarding the intent of the
testator as falling within this rule. The court
Page 72 U. S. 166
relied very much upon the words following the condition as
explaining away the strict common law meaning of the term and as
importing a meaning inconsistent with a strict interpretation. This
judgment was affirmed in the Exchequer.
It is true that the word "proviso" is an appropriate one to
constitute a common law condition in a deed or will, but this is
not the fixed and invariable meaning attached to it by the law in
these instruments. On the contrary, it gives way to the intent of
the parties as gathered from an examination of the whole
instrument, and has frequently been thus explained and applied as
expressing simply a covenant or limitation in trust. Several cases
were referred to on the argument to this effect, and many more
might have been added.
In looking at the explanatory part of the will in this case, it
will be seen that the testator had in his mind a settlement of the
estate in trust for the beneficiaries, and with this view
established a code of regulations to guide the trustees in the
management of it that would continue through all time, and which is
wholly inconsistent with the idea that the estate might be defeated
by a breach of anyone of them. After appointing the three trustees,
he adds:
"I do give authority and power to nominate their successors to
said trust, which is to be done in the manner following: that
immediately after my decease, they . . . shall appoint some meet
persons . . . as the occasion may require into said trust or
office, so be it that at no time more than three persons shall act
in said trust or office, . . . and all persons, successors
hereafter to said trust and office shall at all times in future
have like power to superintend, direct, and appoint their
successors in said trust and office and to perpetuate said trust
for the benefit and use of said society as occasion may from time
to time require."
And he closes by saying that the said trustees and their
successors shall have full power to lease the estate, and "do all
other legal acts for the well ordering and management of said
estate under the limitations and restrictions as hereinbefore
expressed."
This interpretation of the devise was sought to be avoided
Page 72 U. S. 167
on the argument by separating all the limitations and
restrictions in respect to the enjoyment of the estate from that
forbidding the sale or disposal of it, thereby conceding that they
were limitations in trust, but insisting that the other constituted
a condition for a breach of which a forfeiture was incurred. But
the difficulty in the argument is that the same clause embraces not
only the prohibition to sell, but enjoins the duty to lease, and
the application of the rents to the use of the society, and also
the management of the estate by the trustees, and which management
contains the prohibition to lease for terms not exceeding thirty
years. The separation is therefore not only arbitrary but in
disregard of the express words of the testator. The injunction to
lease is as positive as that not to sell, and both are embraced in
the same clause, and if the term "proviso" is to be construed as a
condition in respect to the one, it must consistently be so
construed in respect to the other. And the same observations are
also applicable to the other limitations.
This devise to the Ecclesiastical Society is in some respects
peculiar. The possession, management, and control of the estate are
given exclusively to the trustees, who, according to the
regulations, are invested with power to perpetuate their authority
indefinitely. The only active duties of the society -- the
beneficiaries -- is to receive the rents and profits for their own
use and benefit. Of course the trustees, subject to the limitations
and restrictions annexed to the enjoyment of the estate, possess
all the power and dominion over it that belongs to an owner, and
are bound to take the same care of it and exercise the same
attention, skill, and diligence in its management that a prudent
and vigilant owner would exercise over his own. They are bound to
rent the property, collect the rents, and pay them over to the
society, to protect the possession, prevent waste, see that the
taxes are paid, and in the words of the testator, "do all other
legal acts for the well ordering and management of the estate."
Being thus in the exclusive possession and control of the property
and having devolved upon them
Page 72 U. S. 168
the manifold duties incident thereto, it is quite clear that the
trustees are clothed with the legal estate.
Mr. Jarman states the general principle:
"The mere fact that they are made agents in the application of
the rents is sufficient to give them the legal estate, as in the
case of a simple devise to A. upon trust to pay the rents to B.,
and it is immaterial in such case that there is no direct devise to
the trustees if the intention that they shall take the estate can
be collected from the will. Hence a devise to the intent that A.
shall receive the rents and pay them over to B. would clearly vest
the estate in A. [
Footnote
2]"
The same effect where the duty is devolved upon them to pay
taxes and make repairs. [
Footnote
3] And it is laid down generally that whenever a trust is
created, a legal estate sufficient for the execution of the trust
shall, if possible, be implied. [
Footnote 4] Indeed it would be very difficult, if not
impossible, for the trustees in the present case to execute their
various and multiplied duties over this property without being
clothed with the legal estate, under a mere naked power.
The distinction between a power and a trust is marked and
obvious. Powers, as Chief Justice Wilmot observed, are never
imperative; they leave the act to be done at the will of the party
to whom they are given. Trusts are always imperative, and are
obligatory upon the conscience of the party entrusted. [
Footnote 5]
Our conclusion is that the construction urged by the plaintiffs
of the will importing a condition a breach of which forfeits the
devise is not well founded.
There is another ground of defense to this action that we are of
opinion is equally conclusive against the plaintiffs.
On an application of the society and trustees to the Legislature
of Connecticut to be permitted to sell the premises in question,
setting out the reasons at large in support of it, the application
was granted, and an act passed accordingly.
Page 72 U. S. 169
This act authorized the trustees, together with a third person,
to sell the lands in the manner therein prescribed and to invest
the proceeds at interest in bonds and mortgages of real estate of
double the value of the amount invested, appropriating the interest
to the use of the society in the same manner and subject to the
same use as the rents or income of said property are by the will
required to be appropriated.
The defendant is in possession under the title derived from a
sale in pursuance of this act of the legislature.
In England and in this country where a court of chancery exists,
a charity of the description in question is a peculiar subject of
the jurisdiction of that court, and in cases of abuse or misuse of
the charity by the trustees or agents in charge of it, this Court
will interpose to correct such abuses and enforce the execution of
the charitable purposes of the founder. So, by lapse of time or
changes as to the condition of the property and of the
circumstances attending it have made it prudent and beneficial to
the charity to alien the lands and vest the proceeds in other funds
or in a different manner, it is competent for this Court to direct
such sale and investment, taking care that no diversion of the gift
be permitted. Lord Langdale, the Master of the Rolls, observed in
The Attorney General v. South Sea Company, [
Footnote 6]
"It is plain that in ordinary cases a most important part of
this duty is to preserve the property, but it may happen that the
purposes of the charity may be best sustained and promoted by
alienating the specific property. The law has not forbidden the
alienation, and this court, upon various occasions, with a view to
promote interests of charities, has not thought it necessary to
preserve the property
in specie, but has sanctioned its
alienation. [
Footnote 7]"
This power, in the State of Connecticut, it appears, is
exercised by its legislature, as in the present instance. Many acts
of the kind have been referred to in the argument, extending
Page 72 U. S. 170
through a long series of years down to the present time.
We cannot doubt that the power exists in the legislature, and it
is not for this Court to revise the facts upon which it has seen
fit to exercise it.
MR. JUSTICE DAVIS dissented.
Judgment affirmed.
[
Footnote 1]
1 Sugden on Powers 123, 7th London ed.
[
Footnote 2]
2 Jarman on Wills 202, Perkins' Ed.
[
Footnote 3]
Ibid., 201, and cases cited.
[
Footnote 4]
Lewin on Trusts and Trustees 164.
[
Footnote 5]
2 Sugden on Powers 588.
[
Footnote 6]
4 Bevan 458.
[
Footnote 7]
See also Lewin on Trusts and Trustees 373 and cases,
and Shelford on Law of Mortmain 687.
