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interpretation, and so far as possible, effect be given to after giving a large number of pecuniary legacies to
trust is created, and that he takes the property in his
in effect: “I give you this property, not for your own See also Jurvis v. Pond, 9 Sim. 549; In re Sibley's benefit, but to use and appropriate it to the cause of Trusts, 5 Ch. Div. 494; Gowling v. Thompson, 11 Eq. Christ, leaving it to you to select what religious and (as. 366, note. These cases are strong authorities charitable purposes and objects shall be the recipients showing that the intention of the testator, as evidenced of my bounty, as well as the sums which each shall reby the will, is controlling in construing the language ceive, and you must make such selection and distribuused by the testator in making a bequest, and must tion among the objects selected as will, in your judge govern in determining who are the objects of it. ment, best promote that cause.” This as it appears to
The judgment of the court is that the judgment of us was the plain intention of the testator, and is the
sire him to use and appropriate" the same for the pur-
so far as his intention is concerned, to create a trust TRUST FOR CHARITABLE USES- UNCERTAINTY. as if the proper technical term had been employed.
But by the decisions of the courts it has become the
settled law of this State that such a trust is void, be-
cause it is too vague and indefinite to be carried into
effect. The uniform course of our decisions is that a MAUGHT Y. GETZENDANNER.
trust, to be upheld, must be of such a nature that the
cestuis que trust are defined, and capable of enforcing A clause in a will bequeathing property to a person, "to use its execution by proceedings in a court of chancery.
and appropriate for religious and charitable purposes and This doctrine has been laid down in a series of adjudobjects in such sums and in such manners as will, in his ications, from Dasheill v. Altorney-General, in 5 Harr. judgment, best promote the cause of Christ," creates a
& J. 320, to Isaac v. Emery, in 64 Md. 333. The most trust, but is void for uncertainty.
prominent of the intermediate cases are Wilderman v.
33 id. 609; and Church, etc., v. Smith, 56 id. 397. It reC. V.S. Levy and M. G. Urner, for appellants. quires 1o argument to show that the trust in this will Wm. T. Maulsby, Jr., and J. E. R. Wood, for appel- and must therefore be held to be void. The couse
falls within the rule established by these decisions, lees.
quence of this is, that if we are right in holding this MILLER, J. The decree pro forma, from which this
to be a trust, the property goes to the heirs at law and appeal is taken, annuls the residuary clause in the next of kin. will of George Richards. In this will the testator, But it has been strenuously argued, that where pre
catory words are used, the very fact that the objects only, is again examined and explained, and it was
pressions to be too yagua for the creation of a trust
case of Pennoclos Estate, 20 Penn. St. 26, where the And then, in reference to this third condition, he court decided that the old Roman and English docsays: “It is most important to observe that vague- trine, that precatory words will be sufficient to conness in the object will unquestionably furnish reasong vert a devise or bequest into a trust was not part of for holding that no trust was intended; yet this may the common law of Pennsylvania, they yet held that be countervailed by other considerations which show such words may amount to a declaration of trust that a trust was intended, while at the same time such when it appears from other parts of the will that the trust is not sufficiently certain and definite to be valid testator intended not to commit the estate to the deand effectual; and it is not necessary to exclude the visee or legatee, or the ultimate disposition of it to his legatee from a beneficial interest that there should be kindness, justice, or discretion. The case of Ingram a valid or effectual trust. It is only necessary that it v. Graley, 29 Ga. 553, is directly in point. There the should clearly appear that a trust was intended. * * * decision in Briggs v. Penny was approved and folOnce establish that a trust was intended, and the leg- lowed, and it was held that a trust was created by atee cannot take beneficially. If a testator gives upon precatory words, though not sufficiently declared, and trust, though he never adds a syllable to denote the that the legatee did not take the estate beneficially, objects of the trust, or though he declares the trust in but as trustee for the next of kin. such a way as not to exhaust the property, or though In short, our examination of the authorities, both he declares it imperfectly, or though the trusts are English and American, has led us to the same conillegal, still in all these cases, as is well known, the clusions that were reached by the commentators to legatee is excluded, and the pext of kin take. But | Hill Trustees (1th Am. ed. 116, and which are also there is no peculiar effect in the word 'trust. Other cited with approval in Perry Trusts, § 114, note 4. expressions may be equally indicative of a fiduciary Among the rules there laid down as fairly deducible intent, though not equally apt and clear.”
from the adjudged cases are these : il) DiscretionHe then refers to the fact that in the will before ary expressions which leave the application or nonhim, as in the will before us, another legacy had been application of the subject of the devise to the objects given to the legatee, as clearly showing "that she was contemplated by the testator entirely to the caprice of not intended to take the residue beneficially," and the devisee, will prevent a trust from attaching, but a dismissed the appeal, which was taken from a decree mere discretion in regard to the method of application passed by Vice-chancellor Sir Knight Bruce, whose of the subject, or the selection of the object, will not opiniou in the case is reported in 3 De Gex & S. be inconsistent with a trust; (2) precatory words will 525.
not be construed to confer an absolute gift on the first So in the more recent case of Bernard r. Minshull, taker, merely because of failure or uncertainty in the Johns. Eng. Ch. 276 (decided by Vice-chancelor Sir object or subject of the devise; and (3) failure or unPage Wood in 1859), the maxim that a certain sub- certainty will be an element to guide the court in ject and a certain object are necessary in order to con- construing words of doubtful significauce adversely to stitute a trust, where the words used are precatory a trust.
But our own decision in Taylor v. Plaine, 39 Md. 58, ined in the note is sufficient evidence of the intention of is not conclusive, goes very far to settle the question the parties to contract with reference to such law, rather now before us. In that case a devise of property, real
than that of the place of payment. and personal, to certain named parties, “ to be dis- | A contract to pay interest ou a coupon or interest note after posed of according to their verbal directions, or the maturity may be enforced. direction of either of them," was held to be upou UIT to enforce the lien of a mortgage. trust; and as the terms of the trust had not been declared in the will, a trust arose by operation of law in favor of the heirs and personal representatives of the
J. D. Fenton, for plaintiff. testator. Several passages in the opinion in that case L. H. Montanye, for defendants. have a direct application to this. After stating that
DEADY, J. This suit is brought by the plaintiff, a no positive rule can be laid down which shall deter- corporation formed under the law of Connecticut, mine in all cases what terms or expressious will carry
against the defendants, citizens of Oregon, to enforce a beneficial interest, or what will create a trust, the the ljen of a mortgage on certain real property. The court say: "The words 'trust' and 'trustees' have,
suit was commenced on August 12, 1885, in the State it is true, a defined and technical meaning, and are
Circuit Court for the county of Liun, and afterward more generally as well as more properly used, but it is removed here by the plaintiff. Here the plaintiff tiled well settled that there is no magic in particular words, an amended “complaiut," and the cause was heard on and any language which satisfactorily indicates an in- a demurrer thereto. tention to stamp upon the devise the character of a From the amended bill or complaint it appears that trust will be sufficient."
on April 21, 1881, the defendants made and delivered Again, after comparing the several provisions of the
their promissory note, payable to the order of the will with each other, they say: * We think it may be plaintiff
, on April 21, 1886, for $2,000,
** with interest fairly inferred that the testator did not design to give from date until paid, at eight per cent per annum, as to these donees, who were neither his heirs nor next
per coupons attached, at the office of the Corbin Bankof kin, but strangers in blood, a beneficial interest in
ing Company, New York city.” The note also conthe property, but that they should take it in trust.”
tained the following stipulations: The trust failed for uncertainty in the objects, no “Unpaid interest shall bear interest at ten per cent cestuis que trust being named, and the property was
per annum. On failure to pay interest within five adjudged to belong to the heirs and next of kin.
days after due, the holder may collect the principal If after the bequest and devise to Mr. Bowers, the
and interest at once. And in casa suit is instituted to words "in trust" had been used, it is conceded, and
collect this note, or any portion thereof, I promise to all the authorities show, he would have taken no
pay such additional sum as the court may adjudge redbeneficial interest whatever, by reason of the failure
sonable, as attorney's fees in said suit." of the trust for uncertainty in its objects. But other
And also made and delivered to the plaintiff their words plainly indicating an intention to create a trust
six coupon or interest notes, for the interest to accrue are used, and it is manifest from the whole will that
on said principal pote, for the sums and payable as the testator never intended to give bim this property follows: One for $110.68, payable January 1, 1882; in his own right and for his own use. We have already four for $160 each, payable, respectively, January 1, given our reading of this clause, and we think no one 1883, 1881, 1885, and 1886; and one for $49.32, payable can read this will, or hear it read, without saying at April 21, 1886. There is now due on the principal note once that the testator uever intended to make an ab- and the last two coupons the sum of $2,320, with insolute gift of the residue of his estate to Mr. Bowers,
terest on $2,000 thereof at eight per cent per annum or to give him any beneficial interest therein. Can
from January 1, 1886, and on said coupon notes from then the omission of the words “in trust,” coupled the date when they became payable at ten per cent per with the fact that the law, as laid down by the courts,
annum, in the United States gold coin, no part of declares that the testator's intentions are too vague
which has been paid. and indefinite to be carried into effect, work an abso
On April 21, 1881, the defendants, to secure the pay. lute gift of the property to one whom he never in- ment of said note and coupons, and all sums of money tended should be the recipient of such a gift? A re
thereby agreed to be paid, executed to the plaintiff a sult like this could only be attained by disregarding mortgage on a certain tract of land, situato iu Lane intention, and relying upon some arbitrary, inflexible, county, Oregon, containing 640 acres; which mortgage and technical rule of construction which has no foun- / contained the following stipulations: (1) That if said dation in reason; and we have shown that no such
defendants fail to pay any of said interest when due, the rule has been sanctioned by any trolliug weight of same shall bear interest at the rate of ten per cent per authority.
annum; (2) the defendants will pay all taxes and assessThe practical effect of the decree appealed from is to
ments levied on said real property before the same begive this property to the heirs-at-law and next of kin comes delinquent, and if not so paid, the holder of the of the testator, and we affirm it.
mortgage may, without notice, declare the whole sum
taxes and assessments, and be entitled to interest on CONFLICT OF LAWS NOTE PAYABLE IN the same at the rate of ten per cent per annum, for ANOTHER STATE-INTEREST.
which the mortgage shall be a security; (3) if the de
fendants fail to pay any of said mouey within five CIRCUIT COURT, DISTRICT OREGON.
days after the same shall become due, or to conform AUGUST 9, 1886.
to or comply with any of these stipulations, then the
whole amount secured by the mortgage shall become NEW ENGLAND MORTGAGE SECURITY Co. v. VADER.
due at once; and (4) that on filing of a bill to enforce Prima facie the place of payment of a promissory note is the the lieu of said mortgage the plaintiff therein shall
place of performance, including the rate of interest that recover a reasonable attorney's fee, to be taxed by
have since been paid by the plaintiff; and by a stipula- rate of interest had reference to the law of Oregon, tion filed April 13, 1886, it was agreed that on the argu- and intended to be governed thereby. The contract ment of the demurrer the court may consider the lia- was made bere, and the rate of interest specified bility of the defendants to pay the taxes mentioned, therein. The money was used here, and the rate of and in so doing may consider the bill and the original interest agreed on is allowed by the law of this state, mortgage, and " allow or disallow such claim for
but forbidden by that of New York. taxes as it may be advised.
In Miller v. Tiffany, 1 Wall. 310, Mr. Justice Swayne, The grounds of the demurrer as maintained on the quoting with approval from Andrews v. Pond, 13 Pet. argument are substantially these: (1) The plaintiff 77, 78, says: “The general principle in relation to has not the capacity to maintain this suit; (2) the contracts made in one place to be performed in another notes are made payable in New York, in violation of is well settled. They are to be governed by the law of the usury laws of that State, and are therefore void; the place of performance, and if the interest allowed (3) the agreement to pay interest on the interest notes by the law of the place of performance is higher than after maturity is an agreement to pay compound in- that permitted at the place of contract, the parties terest, and is therefore void; (4) the agreement to pay may stipulate for the higher interest without incurring the taxes is either without consideration or usurious, the penalties of usury.” And adds: “The converse and therefore void.
of this proposition is also well settled. If the rate of [Omitting the other grounds.]
interest be higher at the place of contract than at the As to the second point, it is admitted that the rate place of performance, the parties may lawfully conof interest allowed by the statute (June 27, 1879) of tract in that case also for the higher rate;" citing De New York is only six per cent, and that this court Pau v. Humphreys, 10 Mart. (La.) 1. will take judicial knowledge of the laws of that State. In Jones on Mortgages ($ 657) the result of the auOwings v. Hull, 9 Pet. 624; Bennett v. Bennett, 1 Deady, thorities is stated as follows: "The parties may stip309. The argument in behalf of the defendants on ulate for interest with reference to the laws of either this point is, that by making this note payable in New the place of contract or the place of payment, so long York, the parties to the contract made that the place as the provision be made in good faith, and not as a of performance, including the rate of interest payable cover for usury;" citing Townsend v. Riley, 46 N. H. by the law thereof. There is some confusion and con- 300; Peck v. Mayo, 14 Vt. 33, 38. tradiction in the writers and authorities on this sub- In Kilgore v. Dempsey, 18 Am. Rep. 310; 8. C., 25 ject, but the current of the later ones establishes the Ohio St. 413, it was held that where a note is made just and convenient rule for the solution of the prob- in one State, and payable in another, and the rate of lem, namely, the place of performance depends on interest allowed in such States is different, the law of the intention of the parties to the contract. Where a either State may be applied to the contract. note made in one place is made payable in another, In Thornton v. Dean, 45 Am. Rep. 799; S. C., 19 S. C. prima facie the place of payment is the place of per- 583, it was held that when a contract is entered into in formance, and the law of the latter, for the purposes one State, to be performed in another, the parties may of payment and its incidents, applies to the transac- stipulate for tbe rate of interest allowed in either tion. But this fact is by no meaus conclusive evi- country. dence that such was the intention of the parties; and Iu Daniel on Negotiable Instruments ($ 922) is is the contrary may be inferred from the immediate cir- said: “There are some contracts however which cumstances, as shown by extraneous evidence. Whart. would be illegal if all the parties resided or contracted Conf. Laws, $ 505. And even when the place of pay
either in the State where it is made or where it is to ment is to be taken as the place of performance, for be performed, which are nevertheless recognized and the purposes of payment, and matters incidental enforced if valid either in the one place or the other; thereto, including days of grace, the rate of interest, and of this nature are contracts to pay iuterest at where none is specified in the contract, and the like, it rates, which by the law of one place or the other, may satisfactorily appear from the circumstances of would be usurious and void. In such cases the inteuthe case that it was not the intention of the parties tion of the parties is effectuated us a concession to that the rate of interest should be governed by the trade and commerce between nations; and if the law of such place. Aud generally “the law of the transaction is not in itself immoral, the rate of interplace where the contract is made is to determine the est authorized either by the country where the conrate of interest, when the contract specifically gives tract is made or to be performed is allowed to prevail.' interest." 2 Kent Comm. 460; Story Confl. Laws, In the leading case of De Pau v. Humphreys, 10 $ 305. And this conclusion must be based on the fact Mart. La.) 1, it was held that a noto made in Louisthat an agreement for a specific rate of interest on a iada, payable with ten per cent interest-the legal rato loan constitutes a part of the obligation of a contract in that State-was not usurious, but valid, although which is always measured or tried by the lex loci con- payable in New York, where the interest is only seven tractus and not the lex loci solutionis; and for the pur
per cent. poses of this question, it is said by an eminent writer Mr. Daniel (Neg. Inst., $ 922), in referring to this tbat "the true view seems to be that the place of per- case, says: “The like view has been recognized and formance of an obligation for the payment of money adopted in numerous cases, and may be regarded as a is the place where the money is used " and put at recognized principle of English and American jurisrisk. Whart. Conil. Laws, $ 508. Again, when the prudence, "citing a great number of authorities. rate of interest is different in the place where a note In the light of these authorities, and on every conis made and where it is payable, and two conflicting sideration of convenience and utility, the parties to laws are thus brought to bear on the same point, the this transaction, being at liberty to contract for either court will apply that law to the transaction which will the Oregon or New York rate of interest, the very fact best support the validity of the obligation; for it is that they adopted the former is satisfactory evidence not to be presumed that the parties in fixing the rate tbat they contracted in this respect with reference to of interest acted with reference to the law of a place the laws of this State, and inteuded to be governed which would make the contract void. Whart. Confi. thereby. The note of the defendants was made payLaws, $ 507.
able in New York simply for the convenience of the Now, in this case, all these controlling circumstances
lender. There is no pretense that there was any depoint to the conclusion, that although the note was sign or purpose to contract for or obtain what might made payable in New York, the parties in fixing the be regarded as a usurious rate of interest. On the
contrary, the contract was openly made in good faith, same effect is the ruling in Clark v. Iowa, 20 Wall. 589; in accordance with the law of this State, where the Town of Genoa v. Woodruff, 92 U. S. 502; and Gelpcke defendants resided, and it would be a reproach to the v. Dubuque, 1 Wall. 200. administration of justice if the defendants could now In Jones ou Mortgages (SS 653, 1141) it is said that defraud the plaintiff out of its money simply because coupons for the interest on a mortgage debt are, in their vote was, with their consent, and only for the effect, promissory notes, and draw interest in the same convenience of the leuder, made payable in New York manner after maturity. To the same effect is Daniel rather than Oregon.
Neg. Inst., $ 1513. See also Harper v. Ely, To Ill. 581; There is no law of this State that prohibits the pay. Thayer v. Star Mining Co., 105 id. 552. ment of interest on interest; and the better opinion is In my judgment these interest notes are entitled to that no contract for the payment of interest, whether draw interest, at the rate agreed on, from the date of on interest or principal, is usurious or illegal, unless their maturity. probibited by statute. Tyler Usury, 64. But the rule was early established equity that compound inter
ABSTRACTS OF VARIOUS RECENT DEest would not be allowed, not because it was usurious or contrary to the statute on that subject, but because
CISIONS. the practice, is allowed, would lead to the oppression of improvident debtors. Connecticut v. Jackson, 1 CRIMINAL LAW-LIQUOR LAW-CONSPIRACY-SOLICJohns. Ch. 13. This rule doubtless had its origin in ITATION.--Several persons were charged in an iudictthe old ecclesiastical idea that the taking of interest, ment with conspiracy in that they had induced a sa. under any circumstances, was usury, and a grievous loon keeper to sell or give to them drinks on Sunday sin. But the tendency of opinion has been toward the with the intention of proceeding agajust the person 80 suggestion of Lord Thurlow, in Waring v. Cunliffe, 1 supplying the liquor and getting the informer's share Ves. Jr. 99, that there is nothing unjust in compelling of the penalty. Held, the Quarter Sessions had propa debtor who neglects to pay interest when it becomes erly quashed the indictment. It is impossible to hold due, to pay interest upon that interest; and so it was that persons are guilty in law for conspiracy to do early settled that a promise to pay interest on interest an act where the act imputed is such tbat if the intenafter the latter became due is valid. Kellogg v. Hickok, tion had been consummated no offense would have 1 Wend. 521; Hathaway v. Meads, 11 Or. 66; 8. C., 4 been committed. It is not alleged that the defendants Pac. Rep. 519.
by furnishing a stock of liquor, or by any other means By the law of this State (Sess. Laws 1880, p. 17) in- instigated or furthered the illegal act of selling or givterest is allowed at “eight per cent per annum, and ing away on Sunday, nor that they conspired by force no more, on all moneys after the same become due; or threats to coerce the saloon keepers to sell. The
* but on contracts, interest at the rate of ten latter were free agents; they sold or gave away the per cent per arīnum may be charged by express agree- beer because they chose to do so. Where there is a ment of the parties, and no more." These interest confederacy, but nothing more than solicitations to notes are distinct contracts for the payment of money, an intelligent free agent to commit crime, it is not inand when they became due were entitled, under this dictable unless it is made so by statute. 1 Whart. Cr. statute, without any agreement of the parties on the Laws (8th ed.), S 2691. Chief Justice Gibson, in Shansubject, to draw interest at eight per cent per annum non v. Commonwealth. 2 H. 226, said that if confederuntil paid, or by the agreement of the parties, they acy constituted conspiracy, without regard to the might draw ten per cent. The provision of the stat- quality of the act to be done, a party might incur the ute is in effect that interest shall be allowed "on all guilt of it by having agreed to be the passive subject moneys after the same become due," and that at least of a battery. Accordingly these defendants would not includes the case of money due on an interest or cou- have been indictable if they had combined and agreed pon note, or a promise or agreement in a principal note together to go to the prosecutor's house and solicit to the effect that the interest thereon shall be paid at and induce him to beat them; they are not iudictable a certain period or periods prior to the maturity for having conspired to induce him to give to them thereof. But interest concerning the payment of drinks on Sunday. Counsel for the Commonwealth which no special promise is made, and which no other- rely principally upon the case of Hazen v. Commonwise exists or is due than as an increment of the prin- wealih, 11 11. 355. It is asserted that it was there held cipal sum, is not included in this statute as “ money" that Hazen and three others had been properly condue and entitled to bear interest. But a promise to victed upon an indictment charging that they had conpay interest as a distinct debt or liability, either in or spired to solicit, induce and procure the officers of a out of the principal contract, and before or as the bank to violate a statute which made it a penal ofprincipal sum falls due, is a promise to pay a sum of fease to issue notes of banks of other States of a demoney, which when due, bears interest under the nomination less than $5. The statute gave the former statute, either at the legal rate, or according to the the one-half of the money penalty. But the counts agreement of the parties, within the limit allowed upon which Hazen and his co-defendants were conthereby.
victed charged more than the mere conspiracy to In Bledsoe v. Nixon, 12 Am. Rep. 642; S. C., 69 N. C. procure the bank officerss to issue the forbidden notes. 89, it was held that when a promissory note contained It was also charged, and found, that one of them bad a stipulation that the interest thereon should be paid deposited in the bank large sums of money, not for semi-annually, an unpaid installment of interest drew lawful business, and drew them by checks for unequal interest, as if a note had been given therefor.
sums, and required the checks to be paid in bank notes In Wheaton v. Pike, 11 Am. Rep. 227 ; S. C., 9 R. I. of less than $5, and the defendants had threatened to 132, it was held that where a promissory note was bring penal actions unless they were paid $3,250; that made payable in the three years after date, with in- it was the purpose of the conspiracy to compel the terest payable semi-annually, each installment of in- bank officers unjustly and unlawfully to pay large sums terest falling due before the maturity of the note drew of money for the corrupt gain of the defendants. The interest from the time it was due until paid.
Supreme Court said that they were left to infer that In Aurora v. West, 7 Wall. 104, it was held that ini- such “large sums of money" were to be obtained by terest coupons, by universal usage and conseut, have some other means than a fair prosecution of the ofall the qualities of commercial paper, and should draw fending bank officers; that it was charged that the interest after payment is neglected or refused. To the money was to be drawn from the victims by compound