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Wilber v. Owens

Decided: May 2, 1949.


On appeal from a final decree of the former Court of Chancery advised by Vice-Chancellor Berry, whose opinion is reported in 142 N.J. Eq. 99.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.


[2 NJ Page 170] The bill of complaint seeks a construction of the will of William Brokaw Bamford, deceased.

The appeal is from the decretal findings that the testator had "a general charitable intent" and the "trust created by" the tenth paragraph of the will "is a valid charitable trust," and also from the direction that the executor pay over the corpus of the trust to The Trustees of Princeton University "in trust to invest and reinvest the same, and to use the income in some fitting manner for scientific and philosophical research in its Department of Philosophy as said Trustees of Princeton may in their best judgment decide."

The avowed purpose of this provision of the will was the creation of a trust, to be known as the "Exton-Bamford Research Fund," and the use of "the income thereof in some fitting manner to continue and carry forward to a completion and to publish for popular understanding the results of the researches contained or outlined in" the testator's "manuscript entitled 'Random Scientific Notes seeking the Essentials in Place and Space' or by whatever future title" he "might designate them."

The learned Vice-Chancellor found that the "Random Notes" are "irrational, unintelligible, and of no scientific or other value;" that "the express purpose of the trust created by" the cited paragraph of the will "is impossible of accomplishment;" that the testator had "a general charitable intent and the trust" so created "is a valid charitable trust;" and that under the doctrine of cy pres Chancery was empowered to direct the use of the trust fund "to carry out as near as may be the testator's general intent and purpose:" hence, the provision for the use of the income for "scientific and philosophical research" by Princeton University, who was named by the testator as the ultimate trustee for the execution of the trust if those given the prior option of service should decline to accept the trust on the terms and conditions laid down in the will.

First, the insistence is that the testator did not have a general charitable intent. It is said that the testator's "purpose" cannot be "disassociated from his Notes;" that while he indicated the "thought" that "his notes would be of world benefit," his "basic and fundamental purpose, desire and intent"

was simply the "completion and publication for popular understanding of the results of his 'researches;'" and that this was "paramount and vital," and not subordinate to a general charitable intent, and a construction "severing the decedent's intent from his 'Random Notes'" would run counter to "the express terms of the will, the testimony and the evidence, all of which deny the existence of a 'general charitable intent.'"

The testamentary expression is not to be so narrowly read. It reveals a general charitable intent. The testator's dominant purpose was the devotion of his property to uses which are charitable. He gave what he considered was the bulk of his wealth to the charitable use provided in the tenth paragraph of the will. As it turned out, the bequest was far in excess of the value of his estate. The amount thus bequeathed was $150,000; and the bequest was conditioned upon the raising of a like sum by the trustee, the whole to constitute the principal of the trust in perpetuity. But the fulfillment of the trust was not made to depend upon the provision of the additional principal. In the event that the several trustees should refuse acceptance of the trust so conditioned, the same bequest was made, first to the League of Nations and, in case of a refusal, to Princeton University, in trust "for the same purposes, but upon any satisfactory terms and conditions by which" such accepting trustee "will agree to endeavor to carry out the purposes of this bequest and trust so that the results may be of benefit to the entire world." Such trustee was authorized to do the work attending the execution of the trust by its "own staff or by assignment to scientists or other qualified workers who believe that the common good of the worthy and meritorious of all mankind is greater than that of an isolated part."

Then came a series of specific and pecuniary legacies, the pecuniary legacies totalling $34,600, many of them charitable, but none to become effective until after "the provisions" of the tenth and other preceding paragraphs of the will "have been fully complied with." There was prior provision of $15,000 for the preservation of his "Random Notes" and for

a scientific analysis and appraisal of the "researches" therein "outlined," to the end that such "researches" be made available "for the use and benefit of all mankind," if they "have any practical value." And, by the thirty-third paragraph of the will, the "residue" of the testator's estate was constituted a trust designated as the "Exton-Bamford Trust," to be ...

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