ment, was not expressing testamentary pur- with her husband and apparently dominatposes which originated in her own mind un- ing him in regard to the possession and inaided and uninfluenced by her daughter Lil-vestment of $2,250 in cash. After receiving lian or any other person. A very important test of the actual condition of Mrs. Shotwell's mind in respect of the formation of independent plans and purposes and carrying the same into effect is presented by the testimony of the husband and father, James K. Shotwell, who is sworn as a witness in this cause on behalf of his daughter Laura, the respondent. It appears that about the first of October, as the result of Mrs. Shotwell's efforts, an insurance policy upon the life of the husband, but in favor of the wife, was converted into cash. The policy was sold or the surrender value was paid. Mr. Shotwell about the first of October, 1912, had received a check for this money ($2,250) payable to himself and his wife, and had kept it in his possession. Mrs. Shotwell, plainly the better manager of the two, desired to obtain possession of this money so that it might be properly invested, and accordingly accompanied by her daughter Lillian she visited her farm and had an interview with her husband in regard to the check. The testimony of the husband on this subject is as follows: A. "Q. What happened on the 23d of December (1912)? A. Then I signed the check. Q. Tell us what happened, just the whole story. Well, my wife and Lillie came to the house in the afternoon or evening of the 23d. They had got a conveyance and came over as far as the Old Tuttle's corners, and then Lillie came up to my place and got the horse and wagon and drove down and brought her mother up to the house, and I put up the horse, and then I went in, after we had had a little supper. You want me to go on and tell just the conversation? Q. Tell us the story. A. After we had had a little supper, my wife was sitting in front of the stove, and she said, 'Jim, what have you done with that check?' In our common conversation to each other, I said, 'Em, I have it.' 'Well,' she says to me, "That has been drawn for some time and you have been losing the interest onto it, and now we have been paying the dividends on our life insurance, and I wish now you would sign that, and I will deposit that in the bank, the same as it is drawn, the same as the check is drawn, to our benefit; that is, to James Shotwell and Emma Shotwell.' And she further said: 'Now, do you know, we been paying the dividends on this policy, we must not use any of the principal, but we must only use the interest of this money, and the proceeds of the farm must keep us. Now, don't let us get in debt, for we must keep our home.' Q. Well, what was the result of that conversation? A. Well, I signed the check. Q. Where was Lillie all this time? A. She was with her mother, set with her feet on the front of the stove. Lillie stood next to her. Her mother set there with her feet on the front of the stove and Lillie stood next to her to the left, and I was to the right of her, on the chair on the right side of the stove." This interview between Mrs. Shotwell and her husband occurred only 12 days after Mrs. Shotwell had given her instructions to the New York lawyer, and had her will drawn and executed all in the absence of her daughter Lillian, and now we find this same moth this money from her husband, the testatrix deposited the same in her own name in the Merchants' National Bank of Newark. One draft of $50 was made on January 6, 1913, and the rest of the fund with interest remained undisturbed until after the probate of the will. This transaction between Mrs. Shotwell and her husband does not in my judgment exhibit or even suggest a woman of feeble or vacillating mind whose testamentary purposes could readily be influenced by any one. On the contrary, the transaction indicates that Mrs. Shotwell was, as the daughter says, a "very independent woman," fully capable of forming and carrying out her own plans, and not liable to be unduly influenced by any one. In referring to the value of Mrs. Shotwell's estate which the daughter Lillian takes under this will, I did not include the $2,200. It appears that the fund which now is held by the executrix amounts to about $1,700. Whether funeral expenses, etc., were paid out of the original $2,200, does not appear. The husband, James K. Shotwell, it seems, makes a claim to this fund, or a share of it, and perhaps in part founds such claim upon the promise which he says his wife made to him in regard to the way in which the money would be deposited. It was not necessary for the purposes of this case to consider the nature or enforceability of any claim to this fund on behalf of Mr. Shotwell, but the fact that the fund is an asset of the estate, if such be the fact, is a matter of some importance in determining, so far as we are obliged to determine, whether or not this was an inofficious will. It must be borne in mind that the will was made 12 days before this money was received by Mrs. Shotwell, that the check representing the money had to be indorsed by the husband as well as the wife, and that Mrs. Shotwell could not have been certain that she would be able to persuade her husband to place his indorsement on his check and hand it over to her for collection. Assuming, however, that Mrs. Shotwell contemplated that her daughter Lillian would not only get the farm, subject to her husband's right of curtesy, and the stock thereon, but also this insurance money, I am still of opinion that Mrs. Shotwell's disposition of her little estate cannot be regarded as unjust. It is not uncommon for a parent to leave property to one child with the understanding that the gift is not a pure benefaction; that moral obligations go with it to render assistance to persons to whom the testator deems it unsafe to make a testamentary gift. Without regard to laws invalidating trusts of one kind or another, and making the enforcement of secret trusts a matter of difficulty, testators go on, and will go on, giving outright, without a sign of a trust, large A., a trusted son or daughter, for the pur- dicates beyond all doubt that the affectionate pose of enabling A. to take care of a parent or another son or daughter who is thus placed in a sort of secret quasi guardianship. No law prevents a parent from enriching one son by a testamentary gift in order to put him in a position to take care of his surviving parent to whom no gift whatever is made. If the daughter Lillian carries out the wishes of her mother with respect to her father's support, and the father should live to reach an advanced age, she may spend all of this insurance money in the discharge of her filial obligations. The evidence shows that down to the summer of 1912 the relations between the testatrix and both of these daughters were most affectionate. The letters from the testatrix to Laura, several of them written in the year 1912, show that the mother's heart was filled with love for the absent daughter. It is quite in accord with our common experience with human nature, as manifested by a parent, that the absent child upon whom money and care has been expended is better loved than the child who stays at home, gives his labor to his parent, and between whom and the parent some friction, some petty quarrels, are often inevitable. While the affection of the testatrix for her daughter Lillian appears to have remained unbroken and probably increased as the mother's failing strength made the daughter's care more necessary and perhaps more tender, something occurred which has not been explained by any evidence which in the summer of 1912 produced a certain estrangement between this mother and her daughter Laura. The mother and daughter had met on the farm, the one coming from North Arlington and the other coming from Chicago. They parted, and Laura returned to her home in Chicago and, as she admits, never thereafter communicated with her mother in any way. No explanation of this unfilial conduct is suggested. When Laura was asked on the stand why for six months prior to her mother's death she had never written to her, she answered, "She did not write to me." Mrs. Lahey, a neighbor of Lillian in North Arlington, became acquainted with the testatrix, Mrs. Shotwell, when she went to reside with Lillian, and testified to certain conversations she had with the testatrix. On one occasion Mrs. Lahey asked Mrs. Shotwell whether she could not go to her other daughter while Lillian was moving, and the testatrix replied: relations between the testatrix and her daughter Laura were greatly disturbed, if not severed, during the six months prior to the testatrix's death, and that this condition extended back to a time when there was no evidence that the testatrix was contemplating the making of any will. It does not appear that Mrs. Shotwell had ever made a will or considered the matter of making a will until the winter of 1912-13, when the will in question was executed. While Mrs. Shotwell no doubt felt aggrieved by the unfilial conduct of her daughter Laura, it does not appear that she was actuated by any feeling of resentment in disinheriting Laura and leaving all her property to Lillian. This is not, however, a case of disinheritance, because Laura in her education and qualification to practice medicine in Chicago, in which work she appears to have been successfully engaged when the will was made, had already received an "advance" far beyond the whole value of the property which her mother had to leave. Mr. Burr, the witness above mentioned, was asked on the stand whether Mrs. Shotwell stated to him "any reason for her making her will as she did," and he answered: "Yes, she said her object in making the will was to leave what she had to one who deserved it; that the elder daughter had always given to daughter had never done anything except take her and helped her in every way, and the other from her; that the elder had been of no expense in the way of education but that the younger daughter had, and it was all summed up in that to the one that deserved it or to the one that way that she was giving it where it belonged, was entitled to it." In addition to recompensing Lillian, Mrs. Shotwell, as we have seen, also contemplated that Lillian would take care of her father to the extent necessary either at the farm or elsewhere, and that to accomplish such purpose she would probably require and ought to have vested in her whatever property she (Mrs. Shotwell) had to leave at her death. Lillian in her testimony distinctly admits that her mother considered that she (Lillian) would naturally and properly look after her father, and Lillian makes no denial that such moral obligation rests upon her, but states that when in January, 1913, she first learned the contents of the will, she said: "Mother, I think you have put a big responsibility on my shoulder." In giving due weight to the fact that the will was executed while the mother was re siding at least temporarily with her daughter Lillian in North Arlington, and that Lillian aided her mother in finding a lawyer to draw her will and accompanied her mother to this lawyer's office for the purpose of having the will drawn and executed, it must be borne in mind that the daughter Laura was not excluded from her mother's presence or society. If Laura saw her mother for the last time at the farm in Sussex county in September, 1912, and had no correspondence with her mother after that time, there is no evidence to show that Lillian was responsible for such an unhappy state of affairs. The evidence of Laura, indicating that while at the farm in the summer of 1912 she was prevented from having unrestricted intercourse and private intercourse, if she so desired, with her mother, by some management on the part of Lillian, is in my judgment of very little weight. Laura's testimony is denied by Lillian, and in my opinion is probably exaggerated, and as it stands is improbable. From the summer of 1912 until her death 2. WILLS OF TESTATOR. 439-CONSTRUCTION-INTENTION In the construction of a will the court must do everything in its power to discover the testator's intentions, and to see that they are carried out, if possible. [Ed. Note. For other cases, see Wills, Cent. INTESTACY-RESIDUE OF MY ESTATE-ALL Testator, whose only heirs and next of kin were a sister, a brother, and several nephews and nieces, and the total value of whose real estate was $27,095, and the proceeds of whose personal property after the payment of his debts, an annuity, and specific bequests amounted to $25,500, who devised the "residue of my estate-all monies and incomes," to the establishment of a free hospital as a memorial gift to his father and mother, appointed a friend as his executor, and one as his executrix who was familiar with his plans, intended to leave the residue of both his real and personal property for such purpose, and did not limit the phrase "residue of my estate" merely to "monies and incomes," and hence did not die intestate as to his realty. it is plain that Mrs. Shotwell's natural and proper home was with her daughter Lillian. The mother no longer could do the hard work of the farmhouse, and she needed the care of a daughter, and Lillian, who appears to have been something of a business woman and had at times acquired property, had a business in North Arlington to take care of, a shop to tend. Her mother naturally went to the daughter, as the daughter could not come to the mother and live on the farm as she had done in former years. The mother, however, was not under any constraint from the daughter nor were her relatives or other persons prevented from seeing her. The testimony shows that Mrs. Shotwell went back and forth between the farm and North Arlington during the summer and fall of 1912, although her physical condition appears to have made it proper, if not absolutely necessary, that her daughter Lillian or some other companion should accompany her when she made any journey away from her home. is that its benefit is to be for the whole public, or some large class of the public as distinguishA decree will be advised reversing the de- ed from private persons; the fact that the bencree of the Sussex orphans' court and estab-eficiaries must be indefinite also distinguishes lishing the validity of Mrs. Shotwell's will. such a trust from a private trust. [5] The decree of the orphans' court will not be disturbed so far as it allows counsel fees and costs to the appellant in that court, the respondent in this court. Counsel for the respondent below, the appellant in this court, admits that he consented to the allowance of these counsel fees to his adversaries, but claims that his consent did not cover the allowance of costs. It appears, however, from his statement, that the draft of the decree in its present form was exhibited to him, and that he made no objection to the allowance of costs therein made, and made no move to prevent the decree from being carried out and the checks of the administrator pendente lite from, being paid out of the funds of the estate as provided in the decree. The application of counsel for respondent in this court for a counsel fee and costs will be denied. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. 449.] 4. CHARITIES 1-"CHARITABLE TRUST"DISTINGUISHED FROM PRIVATE TRUST. The essential idea of a "charitable trust" Cent. Dig. § 1; Dec. Dig. [Ed. Note. For other cases, see Charities, 1. For other definitions, see Words and Phrases, First and Second Series, Charitable Trust.] 5. CHARITIES 4—CHARITABLE TRUSTS-EN FORCEMENT. Charitable trusts are treated with much greater leniency by courts of equity than are private trusts, and such courts will stretch their powers to sustain and carry out a charitable trust. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 7, 9, 10; Dec. Dig. 4.] 6. CHARITIES 20- CHARITABLE TRUSTTRUSTEES. real and personal property may be a trustee of Any person capable of taking and holding a charitable trust, including aliens and married women. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 18-33; Dec. Dig. 20.] 7. CHARITIES 22- CHARITABLE TRUSTS · CERTAINTY AS TO PURPOSE OF GIFT. A devise of the residue of testator's estate No application was made to charge the re- for the establishment of a free hospital as a spondent in this court with costs either in memorial gift to a city, open to persons of any the court below or in this court, and the pro- religious denomination whatsoever, and to all or any of the medical profession in good standpriety of such a possible charge has there-ing, sufficiently defined the purpose of the trust; fore received no consideration, nor is any in- and the testator's mention that an executrix timation made in regard to the matter. was familiar with his plan and would direct and arrange for its execution would not influence his farm at Mountainside, Union county, N. the court to refuse to execute it. J. On the 23d of December, 1909, he made [Ed. Note. For other cases, see Charities, and executed his will, which reads as folCent. Dig. §§ 51-56; Dec. Dig. 22.] 8. CHARITIES 21-CHARITABLE TRUSTS CERTAINTY OF BENEFICIARY. lows: "In the event of my demise before it is time A devise of the residue of an estate to es-devise and decree that the residue of my estate for me to form my will in the regular way. I tablish a free hospital as a memorial gift to all monies and incomes-after the payment of a city, appointing the testator's friend as an executor, and appointing as executrix one fa- my just and due debts and providing for such miliar with his plans under whose direction and appropriations as herein mentioned shall go to arrangement with the mayor and aldermen of the establishment of a hospital in the City of Logansport Indiana the city the hospital was to be established, vested in the executors and the municipal author ities discretion as to the arrangements for carrying out the charitable trust, so that it was not void for uncertainty as to whether the title passed to the executors as trustees or to the city. [Ed. Note.-For other cases, see Charities, Cent. Dig. 88 44-50; Dec. Dig. 21.] 9. CHARITIES 4-CHARITABLE TRUSTS-DI RECTION. In such devise the provision that the hospital was to be a free gift to the city under such direction and arrangement as the executors might make with the mayor and aldermen of the city was not in contravention of law. [Ed. Note. For other cases, see Charities, Cent. Dig. §§ 7, 9, 10; Dec. Dig. 4.] 10. CHARITIES 11-CHARITABLE TRUSTS ENFORCEMENT-AMOUNT. Under a will leaving the residue of an estate for the establishment of a free hospital as a memorial gift to a city, where the municipal authorities were ready to accept it, where the estate exceeded $50,000, and would have exceeded $60,000 except for a contest, and a small hospital, together with the land, might be established for $15,000, and an endowment of $20,000 could be advantageously used, the hospital would be established. [Ed. Note. For other cases, see Charities, Cent. Dig. § 35; Dec. Dig. 11.] 11. CHARITIES 33-CHARITABLE TRUSTS TRUSTEES. Under a devise of the residue of an estate consisting of realty and personalty, directing the sale of part of the personalty when in the judgment of the executors it should be most beneficial to the estate, the proceeds to go to a hospital to be established by direction and arrangement of the executors and the municipal authorities, the court would appoint the executors and the mayor of the city as trustees to carry out the will. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 68-74; Dec. Dig. 33.] Bill by Lucene H. Johnson against Abner T. Bowen, executor, and others, for the construction of the will of George F. Johnson, deceased. Heard on bill, pleadings, and proof. Will construed, and trustees to carry out a charitable trust appointed. See, also, 80 N. J. Eq. 525, 85 Atl. 254. G. Bartram Woodruff and Foster M. Voorhees, both of Elizabeth, for complainant. McDermott & Enright, of Jersey City, for heirs and next of kin. Condict, Condict & Boardman, of Jersey City, Henry B. Johnson, of New York City, and Edward J. West, of Camden, for defendants executors and City of Logansport. friend Abner T. Bowen of Delphi Indiana-and "This hospital is designed to be a memorial in the City of Logansport to my father Israel Johnson and his beloved wife Mary-my Mother and to be known as the Israel and Mary Johnson hospital "Said hospital to be free to persons to any or any of the medical profession in good stand- · religious denominations what so ever and to all ing. "I devise and desire that a sum shall be held by my executor and executrix sufficient to pay to Mrs. George W. Miles the sum of thirty three dollars per month "I devise that such sum shall be sent to Mrs. George W. Miles-the sister of my beloved wife (now deceased) on the first of each month at Weedsport, New York or at such place as she máy designate said sum of thirty three dollars to be sent to her monthly so long as she shall live. "To Mrs A Josephine the cousin and name Sake of my wife (now deceased) I devise and bequeath all jewelry together with the personal effects of my wife clothing Books, all personal belongings-etc. "I also devise that all furniture-and bricabrac-now in my house shall belong for ever and be owned by said Mrs A Josephine SmithSuch a part of it as she may wish to retain— the balance to go to said hospital-or sold as my executor and executrix may in their judgment seem best. "I devise and decree that the indebtedness of the Mrs Smith Co as charged upon my books remain in tact until such a time as arrangement for payment can be made longing to my farm should be sold at auction "I devise that the stock and implements beto the highest bidders, the monies thereby obtained to go to the estate for the benefit of said hospital "Such sale to be made at a time when in the judgment of the executor and executrix-is most fitting for the benefit of the estate-" The testator left no descendants, widow, or parents. His heirs and next of kin were a sister, a brother, and a number of nephews and nieces. His estate consisted of his country estate or farm, on which he resided at the time of his death, which consisted of about 171 acres, from which he derived no income; an apartment house in New York, heavily mortgaged, which produced no income over operating expenses, interest, and taxes; also considerable cash in bank, also in the Hartog Candy Company, and other in LEWIS, V. C. George F. Johnson died in June, 1910. At that time he was living on Again in the same case the court says: "In attempting to interpret any will the first suggestion naturally arising is that the testator intended to dispose thereby of all his prop erty.". vestments in personal securities. There were, in addition, the personal effects, furniture, and stock on the farm on which he died. Besides these, he had contracts with the Equitable Life Assurance Society, which produced the income on which he lived. He A careful reading of this will has satisfied had been connected with the Equitable Life me that the testator intended to leave the Assurance Society by two agency contracts residue of his estate, including both real running from 1891 to 1906, under which he property and personal, for the purpose of was entitled to receive commissions upon pol-establishing a hospital in the city of Logansicies solicited by him, for 20 years from the date of each policy. He had retired from business on December 31, 1906, and the income upon which he was living at the time of his death consisted, for the most part, of the commissions paid monthly under these contracts. His other interests in personal securities and deposits produced an income of considerably less than $1,000 per annum. The buildings on the farm have been burned since the testator's death, and insurance has been collected amounting to $8,022.48; the land itself being valued at $17,150. His real estate in New York has been foreclosed, and has netted the estate $1,922.89. The total value of the real estate of which he died seised amounted to $27,095.37. port, Ind., to be a memorial to his father and mother. The will was not drawn up by a lawyer, and the testator was a sick man at the time he drew it up. The language of the will shows very clearly what his intentions were, although he evidently did not understand the exact meaning of all the legal terms that he used. But that is entirely unimportant. His intentions are all important, and the court must do everything in its power to discover them and see that they are carried out if it be possible. The testator clearly attached no particular meaning to dashes. In the ninth paragraph he uses a dash five times, and this paragraph shows very clearly that his knowledge of the art of punctuation was extremely limited. He apparently knew The proceeds of the personal property on that nowadays punctuation marks are in use hand after the payment of the debts of the for the purpose of expressing ideas effectivedecedent, the annuity mentioned in the will, ly. Punctuation is an important aid to gramwhich has been paid up to April 1, 1915, the mar, though not indispensable. The ancients delivery to the legatees named in the will of had no punctuation whatever. It will be notthe jewelry, etc., specifically bequeathed, the ed that the dash was the favorite punctuation payment of the costs and allowances of the mark of the testator, and he used it constantI am entirely satiscontest of the will, and the transfer of in-ly in place of commas. incomes." heritance tax from New York to New Jersey, fed, therefore, that the testator did not inamount to about $18,000, to which must be tend to limit the meaning of the phrase added payments from the Equitable Life As-"residue of my estate" to merely "monies and surance Society, which will amount to between $7,500 and $10,000, making a total of about $25,500. The estate has been diminished since the decedent's death by circumstances which he could not have foreseen, viz., the costs of the contest of his will by the heirs and next of kin, which said costs amounted to the sum of $10,900. [1-3] It is contended by the negative that the words in the first paragraph of the will "all monies and incomes" are words by way of explanation to show just what the testator meant to be included by the words "the residue of my estate," and that therefore the testator died intestate as to his real estate citing the case of Leigh v. Savidge, 14 N. J. Eq. 124. The counsel for the positive have cited the case of Torrey v. Torrey, 70 N. J. Law, 673, 59 Atl. 451, wherein Judge Dixon wrote the opinion for the Court of Errors and Appeals, in which the court said: The will proves very clearly that the testator very greatly preferred the use of dashes to commas, and for that reason he used them. As the court is seeking the testator's intention in endeavoring to arrive at the meaning of the testator on a question of the meaning of punctuation marks, I think it must be influenced in ascertaining his intent by the meaning the testator evidently gave to the same punctuation marks in the other paragraphs of the will. [4-7] The next question is: Is the purpose of the trust legally ascertained? This is a charitable trust, and the essential idea of a charitable trust is that the benefit of the trust is to be for the whole public or some large class of the public, as distinguished from private persons. The fact that the beneficiaries ble trust sharply from the private trust, and must be indefinite distinguishes the charita charitable trusts are treated with much greater leniency by the courts of equity than "But it is argued that these considerations to the charitable trust that it will stretch its are private trusts; and so friendly is equity are not sufficient to overcome a certain legal presumption against disinheriting the heir. powers to sustain and carry out a charitable That presumption originated in an artificial trust. Any person capable of taking and system which does not exist among us a system holding real and personal property may be a designed to avoid the division of landed estates. So far as it accords with the natural impulse to provide for one's family and kindred it still trustee, including aliens and married women, and a statute requiring trustees to be resi |