McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
[11 NJSuper Page 168] The plaintiff, experiencing some significant incertitude concerning the proper performance of her fiduciary duty as executrix of the last will and testament of one Elinore F. Spinner, deceased, prosecuted this action in the Chancery Division of this court to obtain a judicial construction of certain provisions of the will together with conformable instructions.
The testamentary paragraphs of present pertinency read as follows:
"Fifth: I hereby give, devise and bequeath my real estate located at the Corner of Chambers and Bullman Streets, Phillipsburg, New Jersey, to Maria Mirinda for and during her natural life and after her death I direct the same shall become absolutely the property of Delaware Chapter No. 50, Order of the Eastern Star of the Town of Phillipsburg, State of New Jersey, as a place for the aged and blind, such home to be maintained by the said Eastern Star as a memorial to Henry Tillman Spinner and Jane Frome Spinner. This devise is to be free and clear of any encumbrance or lien of any kind which may be against the property at the time of my death and also to be free of any inheritance tax. I direct my executrix hereinafter named to pay out of my estate such amount as will entirely free the said property from any such encumbrance, lien or tax.
"Fifteenth: All the rest, residue and remainder of my estate I give, devise and bequeath to Delaware Chapter No. 50, Order of the Eastern Star of the Town of Phillipsburg, State of New Jersey, to hold this fund intact so that the principal of the same, together with accumulated income, shall be available and used for the maintenance of the Henry Tillman Spinner and Jane Frome Spinner memorial, after the death of Maria Mirinda."
The questions submitted to the court for determination are succinctly stated in the pretrial order. They are:
"(a) Whether the charitable trust set up under paragraphs Fifth and Fifteenth of the will of Elinore F. Spinner, deceased, fails and whether some other institution under the cy pres doctrine would be entitled to take over the property of the trust, or whether Florence Blake King, the only heir at law and next of kin entitled to the personalty under the laws of distribution or entitled to property under the statute of descent, if the will fails, shall take.
"(b) Whether Florence Blake King, before her marriage known as Florence Blake, is entitled to an accounting as against plaintiff, Maria Mirinda, executrix under the last will and testament of Elinore F. Spinner, deceased."
It was resolved by the judge of the Chancery Division that the devise of the real estate to Delaware Chapter No. 50, Order of the Eastern Star, as a place for the aged and blind, and the residuary bequest for its maintenance created a valid subsisting charitable trust.
It had been stipulated that the Delaware Chapter No. 50, Order of Eastern Star, had declined to accept the trust and that the Warren Hospital had upon request refused to qualify as a substituted trustee. In consequence, the Chancery Division judge furthermore determined that "a trustee will be appointed to administer the trust with direction to dispose of the property. The distribution of the proceeds of the sale of said property and the fund constituting the residue of the estate will await submission to the Court of the names of qualified institutions whose object is the care of the aged and the blind."
It has been said, "Charity is never lost; it may meet with ingratitude, or be of no service to those upon whom it was bestowed, yet it ever does a work of beauty and grace upon the heart of the giver."
Obviously the present appeal is primarily critical of the determination that the testatrix intended to create a charitable trust, that in the circumstances the trust did not fail and that it is a valid subsisting charitable trust. The application of the cy pres doctrine and the contemplated exercise of the power which it confers are at present of secondary consideration.
The story of charitable trusts in the law, decisional and legislative, is lengthy and interesting. 3 Scott on Trusts, c. 11, § 348 et seq.; 2 Bogert, Trusts and Trustees, c. 17, § 321 et seq.; Lewin on Trusts (14 th ed.), c. IX, p. 470; State ex rel. Linde v. Packard , 35 N.D. 298, 160 N.W. 150, L.R.A. 1917 B , 710. Research has eventually supplied reason to believe that charitable uses were recognized by the English law before the Norman Conquest, and that the Court of Chancery had sustained such trusts long before the enactment of the Statute of Charitable Uses by Parliament in 1601. 43 Eliz., c. 4. Vide, Vidal v. Girard's Executors , 2 Howard 127, 11 L. Ed. 205 (U.S. 1844). The preamble, however, of that enactment, enumerating some 21 charitable objects, has undoubtedly been influential both in England and in the United States in determining whether a stated purpose is to be regarded in law as charitable.
Chancellor Zabriskie in Norris v. Thomsons Executors , 19 N.J. Eq. 307 (Ch. 1868), commented (at p. 311): "On the equity of this statute and the rights established by it, that court took jurisdiction of all charities or subjects included within it. Many of them, as the maintaining of bridges, causeways, and houses of correction, were neither charitable nor religious objects, in the usual sense of these terms. Yet, in proceedings by bill and information instituted in that court, and not in any way under the provisions of the act, the Court of Chancery has always defined charitable and religious objects according to the enumeration in the preamble of that act; not limiting the objects by the terms of the act literally, but limiting them to matter of like nature."
On appeal, the Court of Errors and Appeals, 20 N.J. Eq. 489 (1869), concluded that the common law, as interpreted in the decisions relating to the statute of 43 Elizabeth, c. 4, prevailed in this State with respect to the question of what constitutes the legal definition of a charitable trust. That statute, long obsolete, was repealed by the Mortmain and Charitable Uses Act of 1888, which nevertheless embodied the same list of objects deemed to be charitable, among which is the "relief of impotent, aged and poor people."
And so it suffices initially in the present case to realize that the bestowal of aid upon the aged and the blind has been classified for at least 350 years as a charitable purpose. Indeed, the relief of the poor, the aged, and ...