(90 N. J. Eq. 386) NEW JERSEY TITLE GUARANTEE & TRUST CO. v. SMITH et al. (No. 45-546.) used for the benefit of its inhabitants, falls within the definition of a "charity." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Charity.] (Court of Chancery of New Jersey. July 17, 9. CHARITIES 20(5)—BEQUEST IN TRUST FOR 1919.) 1. WILLS 684(7)-CONSTRUCTION TO DETERMINE TIME TO BEGIN PAYMENTS TO WIDOW. Under a will providing testator's widow should always be well provided for, the income payable to her out of a trust fund was to be paid from the date of testator's death, not from a year after his death. 2. WILLS 820(1)—AUTHORITY TO MAKE UP FROM REALTY DEFICIENCY IN FUND FOR WID Ow. Under will directing the executor to set aside a part of testator's estate to the amount of $165,000 for his widow, and that, if the estate should not be sufficient to pay legacies, the executor should first set aside the sum of $165,000 mentioned for the widow, and reduce the remaining legacies pro rata, if the personal estate was insufficient to produce the trust fund for the widow, the additional amount could be raised from the real estate. 3. WILLS 820(3) - CHARGING PECUNIARY LEGACIES ON REALTY. Where the residuary clause of a will disposes of testator's realty and personalty in a blended mass, an intention is implied on his part to charge the pecuniary legacies on the real estate, if the personal estate is insufficient to pay them. BENEFIT OF INHABITANTS OF TOWN SUFFICIENT. Where testator made a bequest on trust for a charity, the erection of a building in a specified town for the benefit of its inhabitants, it is immaterial whether or not the town is incorporated as a municipality; the bequest being to a trustee for its inhabitants, and the beneficiary sufficiently designated. 10. CONVERSION 16(3)—BEQUEST OF RESIDUE TO EXECUTOR CONVERTS REALTY. A bequest of the residuary estate, real and personal, to the executor, in trust, if necessary to carry out the provisions of the will, works a conversion of the realty into personalty, especially where the executor has power of sale equivalent to an imperative direction to sell. 11. CHARITIES 20(3) CHARITABLE *m BE QUEST TO HOSPITAL SUFFICIENTLY DEFINITE. A bequest to a specified hospital is good, though the hospital is unincorporated, it being capable of identification, and able to take an unconditional gift of personalty, being managed by a board of directors and having charitable objects. Suit between the New Jersey Title Guarantee & Trust Company, executor of the estate of Charles Arthur Smith, deceased, and Mar 4. TRUSTS 160(2)-SUPPLYING TRUSTEE FOR garet Smith and others. Decree in accord TRUST CLEARLY ESTABLISHED. Equity will never want for a trustee, where a trust is clearly established. 5. WILLS 681(1)-DESIGNATION OF TRUSTEE BY THE TERM "GUARDIAN." Designation by the will of testator's close personal friend as "guardian" of testator's widow held a selection of such friend as trustee for the widow. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Guardian.] ance with the opinion. Gilbert Collins, of Jersey City, for complainant. George W. Rurode, of Jersey City (Theodore Rurode, of Jersey City, of counsel), for defendant guardian. Vredenburgh, Wall & Carey, of Jersey City, for defendant Margaret Smith. LEWIS, V. C. The bill seeks the construction of the will of Charles Arthur Smith up 6. WILLS 684(10)-AUTHORIZATION OF USE on the following questions: (1) Whether the income payable to Margaret Smith, the widow, is to be paid from the date of the testator's death, or only after one year from his death. (2) Whether the real estate is charged with the payment of pecuniary legacies. (3) As to the status of George W. Rurode, who is designated as guardian of Margaret Smith, the widow. (4) Whether the executor can safely pay to George W. Rurode the income on the trust fund for the benefit of the widow. (5) As to the executor's duty in regard to the payment of principal for support and maintenance of the widow. Out of what fund the inheritance tax on the trust fund is payable. (7) As to the bequest in the thirteenth paragraph of the will for (6) 8. CHARITIES 10-WHAT CONSTITUTES BE- the benefit of the inhabitants of Forked RivQUEST TO "CHARITY." A bequest of a fund, on trust to erect and maintain a building in a specified town, to be er. (8) As to the bequest in the nineteenth paragraph of the will for the benefit of the Toms River Hospital. (108 A.) [1] 1. The intention of the testator, who provided substantially for his widow, is clear. He said: "It is my intention and my wish that she shall always be well provided for and maintained." It would be absurd to hold that such provision and maintenance should be withheld for a period of a year following the testator's death; for, in that time, through lack of funds, or proper attention and care, the widow might herself have passed away. I have no hesitancy, therefore, in construing this provision of the will in accordance with what I thus take to be the testator's clear intention; and the income on the trust fund of $165,000, for the benefit of the widow should be paid from the date of the death of the testator. [2] 2. I also feel that there can be no real question as to the testator's intention that, if the personal estate is insufficient to produce the trust fund of $165,000, created for the benefit of the widow, then the additional amount necessary should be raised from the real estate. By the first article of the will the testator directs the executor to set aside "such part of my estate to the amount of $165,000." By the twelfth article he says: "In the event that my estate shall not be sufficient to pay the legacies herein bequeathed, I then direct that my executor shall first set apart the sum of $165,000 mentioned in the first clause of my will, and the remaining legacies shall be reduced pro rata." In the first article the testator also shows that he wanted his widow to be supported as he had been supporting her, even if it were necessary to use the principal of the trust fund. He says, "She shall always be well provided for and maintained," and that she should always be supported "as she is now being maintained and supported by me," and, further, "as I am now supporting her and maintaining her." It seems entirely clear, It seems entirely clear, therefore, that the testator's intention was to raise the fund of $165,000 mentioned for the benefit of his widow, regardless of whether it came from his personal estate or from his real estate, in the event of the personal estate being insufficient for that purpose. I therefore so construe the will in this respect. [3] The legacies far exceeded the value of the personal estate, not only at the time of the testator's death, but at the date of the execution of his will, and the residuary clause disposes of the real and personal property in a blended mass. This implies an intention on the part of the testator to charge the pecuniary legacies on the real estate, if the personal estate is insufficient to pay them. It follows that the real estate should be charged with the payment of the pecuniary legacies. 108 A.-2 [4, 5] 3. The testator was deeply solicitous of the welfare of his wife. Mr. George W. Rurode was a close friend, in whom he reposed great confidence. It was his specific desire that Mr. Rurode should be intrusted with the care of Mrs. Smith, the testator's wife, after his death. It seems to me to be immaterial by what name he designated the person whom he desired to take care of his widow, when he himself was no longer able to do so. It is easy to understand how a man in his position, whose wife has been ill, and for a time in a sanitarium, should be thus specifically desirous of selecting some personal friend, in whose ability and personal integrity he had full confidence, to exercise this delicate and important trust. There can be no doubt of the effective creation of the trust fund for the benefit of the widow, and there is no doubt in my mind but that the testator intended Mr. George W. Rurode to be the trustee. In the light of the well-known rule that "equity will never want for a trustee" where a trust is clearly established, I would have no hesitancy in holding, in the event of the testator's having failed to effectively designate a trustee, that a trustee should now be appointed to carry out the terms of the trust which unquestionably has been created by the testator in this case, and it would be a simple matter to appoint, as the trustee, Mr. George W. Rurode, the person designated by the testator as "guardian"; but I feel that this is unnecessary, because, in my judgment, the testator clearly intended that Mr. Rurode should be such trustee, and that his designation of him as "guardian" was due to the layman's natural misuse of technical terms, and misapplication of the niceties of legal phraseology. [6] 4. It follows, again, that the executor, therefore, can safely pay to George W. Rurode the income from the trust fund for the benefit of the widow, and 5. That it is the executor's duty to make payment of the principal as well as the income, for the support and maintenance of the widow, if, or when, in the concurrent judgment of the executor and trustee, it may be necessary; the testator's will in this respect providing that such action be taken "if at any time it may be necessary in the judgment of both my executor and guardian of my said wife to use any part of the principal of said sum of $165,000." [7] 6. The testator, by the twenty-third article of the will, directs his executor to pay all transfer or inheritance taxes imposed on the principal sum of $165,000. In the twelfth article the testator provides that, if there is not enough to pay the legacies, he desires the $165,000 fund to be first set aside for the benefit of his widow, and the remaining legacies reduced pro rata. The testator's intention to create a trust fund of $165,000 net is plain, from these and other provisions of the will already considered. I am therefore of the | he published it in his weekly paper, that would opinion that this fund should be undiminish- be implied as malice, was not reversible error, ed by the payment of transfer or inheritance on theory that it permitted jury to understand taxes, and that such taxes should be paid out that, if he did not know it to be false, he would of the general estate. [8] 7. This involves a bequest of $15,000, upon trust, to erect and maintain a building in Forked River, to be used for the benefit of the inhabitants thereof, and falls within the general definition of a charity as "a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint; by assisting them to establish themselves in life; or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it be so described as to show that it is charitable in its nature." MacKenzie v. Trustees, 67 N. J. Eq. 652, at page 665, 61 Atl. 1027 at page 1033 (3 L. R. A. [N. S.] 227). [9] Whether or not Forked River is incorporated as a municipality is immaterial. The bequest is to a trustee for the benefit of the Inhabitants of Forked River, and the beneficiary is sufficiently designated to admit of identification without doubt or difficulty. I think, therefore, that the provisions of the will in this respect should be carried out as directed by the testator. [10] 8. The residue of testator's estate, both real and personal, is bequeathed and devised to the executor, in trust. If necessary to carry out the provisions of the will, this works a conversion of the real estate into personalty, and especially is this true where there is a power of sale in the executor, which is equivalent to an imperative direction to sell, and causes equitable conversion. [11] It seems plain, therefore, that the bequest to the Toms River Hospital is a gift of personalty. The fact that this hospital is unincorporated is immaterial; it being clearly capable of identification, and able to take an unconditional gift of personalty. The proof establishes that it is managed by the board of directors, and that its objects are of a charitable nature. I think, therefore, that the provisions of the will in this respect should also be carried out as directed by the testator. I will advise a decree in accordance with be free from blame. A charge that within a reasonable time after matter was brought to attention of newspaper, and of reporter and editor, there was a letter acknowledging mistake and offering explanation, and later a published retraction, making full amends as far as that goes, was all that would be reasonably expected in the way of retraction and restoring plaintiff to public esteem, if he had lost it, was not error. 4. LIBEL AND SLANDER 124(7) LETTER OF EXPLANATION AND PUBLISHED RETRACTION. Where defendant published in a newspaper school board, it was not error to instruct that on August 8th a false account of a meeting of a letter of explanation acknowledging the mistake, dated September 9th, and retraction in newspaper on September 20th, was a sufficient and reasonable retraction and vindication as far as it went. 5. LIBEL AND SLANDER 124(8)—INSTRUC TION AS TO RETRACTION AND REFERENCE TO LACK OF INJURY PROPER. Charge that jury might consider that there was a retraction, and that subsequent behavior of reporter and editor, independent of the article, was free from any exhibition of actual malice, and was marked by evident desire to make amends, accompanied by an explanation, and that plaintiff still held his position as a mail carrier, with increased compensation, and that evidence showed no loss of public esteem and no proof of actual damage, was not error. 6. LIBEL AND SLANDER 124(1)-NECESSITY OF INVESTIGATION BEFORE PUBLICATION OF CHARGE. A refusal to charge that if jury found that defendant published the article complained of without any prior investigation, and if it was false, the verdict should be for plaintiff, was not erroneous. (108 A.) might be considered, with the other evidence, in township, and at that meeting a petition was determining actual malice or ill will toward plaintiff, was not reversible error. presented by certain citizens complaining of a certain school-teacher, for sundry causes and among other causes of complaint was that she wrote too many letters, which I am free to say might be considered a weakness of a schoolteacher, and this complaint led to discussion. Plaintiff was present, and also George McGee, the reporter of this newspaper, was present, with a number of others-15 or 16 altogether at the gathering. On August 8, 1910, two days afterward, in the Plain Speaker appeared the following: "At this juncture"-now, of course, there is nothing to show what the juncture was; they just start out with that-"At this juncture"-but referring, no doubt, in the light of the evidence adduced here, to the complaint about the teacher and to the discussion which ensued 9. LIBEL AND SLANDER 124(3) INVES--"At this juncture Warren [spelling the name TIGATIONS OF REPORTER CONSIDERED TO RE- Charge that, if jury believed that defendant's reporter in good faith inquired from a reputable person as to identity of person who informed the school board of the facts contained in the alleged libel, and understood his informer to say that such person was in fact plaintiff, the jury might take such circumstances to rebut any inference of malice or negligence, was not reversible error. the W-a-r-r-e-n, meaning thereby plaintiff), [still spelled W-a-r-r-e-n, accompanied with the innuendo, meaning thereby plaintiff] may be Appeal from Court of Common Pleas, Lu- compelled to answer to the department for his zerne County. Action in trespass for the publication of a libel by George W. Wharen against W. C. Dershuck. Verdict and judgment for defendant, and plaintiff appeals. Affirmed. part in the drama was the opinion expressed by a number of people present at the meeting, who felt that the whole delegation was animated by some ulterior motives and unduly biased against the teacher." The person directly responsible for the article Fuller, P. J., charged the jury in part as was McGee, the reporter. The defendant perfollows in the common pleas: when present, if he was editor or publisher. sonally was not connected with it at all; in fact, he was away from home on a visit South. This is a civil action for libel, as distinguished He had no further connection with the publicafrom a criminal prosecution for libel, secking tion of the article at all; but nevertheless he damages for the plaintiff in the civil suit, rather would be responsible in law for whatever apthan the punishment for the offender in a crim-peared in that newspaper either when absent or inal prosecution. It is instituted by George W. Wharen, spelled W-h-a-r-e-n. George Washington Wharen seems to be his full name, and I state this because it has a bearing in connection with the evidence against W. C. Dershuck, the editor and proprietor of a daily paper published at Hazleton, known as the Plain Speaker, for a certain article issued on August 8, 1910, reflecting upon plaintiff's behavior as a mail carrier. While the article appeared in the paper of August 8, 1910, this action was not brought until July 7, 1911, 11 months afterward, and it now appears for the first time, so far as we know, upon the trial list of the court, almost 7 years since the paper was published. It is rather a tame affair on the whole for a libel suit, which we expect to be a belligerent performance. Both the lawyers and the parties have behaved throughout with exemplary gentleness and gentility, and the hair has not been flying nor the blood flowing at all in connection with the proceedings, being tried in a very genteel and expeditious manner, starting yesterday afternoon I think, and being now near its con clusion. It would seem that on August 6, 1910, there was a meeting of the school board of Foster Now the disposition of this action by you, and our submission of it to you, is covered by an act of assembly, which provides that there shall be no recovery in civil action of this character, on account of the libel or alleged libel, unless it was malicious or negligent; but, if the jury find it to be malicious or negligent, they may allow such damages as they deem proper. That is the act of assembly which is the foundation of the case. Now you must find-in order to find a verdict in favor of this plaintiff and against the defendant, it must be found first that the defendant, Mr. Dershuck, was the editor and publisher of this newspaper, Plain Speaker, and on that there can be no doubt. It is not denied. It is virtually admitted; not expressly admitted. Should you find as the initial fact of the case, namely, that the defendant was editor and publisher of this paper, and therefore responsible for any article which appeared in the same and was uttered, then you must find in the second place that this article was published of and concerning the plaintiff, Geo. W. Wharen. He would not be entitled to recover anything, unless the libel was about him and so understood. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Now you have observed in my reading of the [ based upon reasonable and probable cause. And article that it refers to the individual as Wash- when so made in good faith, the law does not ington A. Warren-spelling the name W-a-rr-e-n and not W-h-a-r-e-n-and the name Warren is repeated several other times in connection with the article. The true name of the plaintiff is George Washington Wharen. It is pronounced, would seem be pronounced, War ren. [I] Now we come to some most vital and not so easily determined ingredients of plaintiff's case, for you must find in the fifth place that the article was malicious, published with malice by McGee. Of course, so far as Mr. Dershuck is concerned, there is not the slightest proof of actual malice at all. It is only legally imputed, so far as he is concerned, from the acts of McGee; but he is responsible for McGee's acts. Now malice we all know to be an evil mind, with intention to do injury to somebody, without any justification or excuse, and the law recognizes two kinds of malice, which is actual malicethat is, where it really sets out to hurt another, to injure him, to do him an injury, as if McGee were the personal enemy, or was at that time the personal enemy, of this plaintiff, and in order to injure him deliberately made the publication in pursuance of a threat or anything of the kind, that would be actual malice, express malice. Then the law recognizes another kind of malice, namely, implied malice, not express, but implied from certain circumstances. I will draw them to your attention. Generally speaking, there are two kinds of malice, malice in fact, and malice in law; either of them would sustain an action for libel. Now did McGee have actual malice? You may ask yourselves the question first. As I say, there is no proof of any ill will or intention on his part; didn't even know the plaintiff. He attended that meeting, as he had a right to do, public meeting of the school board, for the purpose of recording the public proceedings there, as he had a right to do, and it does not seem to the court as if you could find from any of the circumstances actual or express malice. Nevertheless, if McGee knew the article to be false and here is one of the vital questions of fact in the case for you to answer-if he knew it to be false when he made the statement, that would make it malice in law. That would be implied malice. In the absence of any proof to show express malice or actual malice, you as jurors would not only have the right, but it would be your duty, to infer malice, if McGee knew the article to be false. Now did he know it to be false? It is for you to say. [2] The case has been argued to you most ably by counsel in the case. We leave that question to you without any comment or discussion. We simply say, if you find he knew it to be false, then it was a malicious publication, and this requirement of the plaintiff's case would be met; but if he didn't know it to be false, the implication of malice could not be drawn from the article itself, as in ordinary cases of libel, because in my judgment-and we say it to you as a matter of law-if it was based on reasonable and probable cause, if the article was published, if the statement incorporated was made upon reasonable and probable cause, it was a privileged communication. Now that is a legal proposition entirely for the court. A communication is privileged when made upon a proper occasion, from a proper motive, in a proper manner, and imply malice, as in the ordinary case of libel, from the mere proof of what is said about the man, and actual malice must be proved. Now I say concerning this article that the occasion was proper. Here was a public meeting of the school board, open to the public, rightfully open to the public, and matters of public interest being discussed, behavior of a teacher, and we say, without any discussion or debate on the proposition, that it was a proper occasion. We say to you, further, that so far as you can observe, either from the surrounding circumstances or from the article itself, the motive and the manner were proper, and therefore all the requirements of a privileged communication would be met, if it was not known to be false (which, of course, would destroy the privilege as we have already charged you), or if, though untrue, it was made upon reasonable or probable cause. So, if you do not find that McGee knew it to be false, you must find want of reasonable or probable cause-that is, negligence-in order to sustain a recovery in an action by the plaintiff, and that brings us to the next ingredient or requirement, negligence. It must be found to be either malicious in the light of the instructions which I have just given you on that subject, or negligent in the light of the instruction which I now give you. [3] In connection with the subject of malice I may refer here to the circumstance that as soon as the matter-or within a reasonable time, as it seems to the court, after the matter-was brought to the attention of the newspaper, of the reporter and of its editor, there was not only a letter on the 9th of September acknowledging the mistake and offering an explanation of it, but there was also on the 29th of September in the paper itself, published a retraction, making full amends as far as that goes; of course not destroying the liability, if there is a liability, but nevertheless, in the judgment of the court, going as far as could be reasonably expected in a way of retraction and in the way of restoring the plaintiff to the public esteem, if he had lost that esteem. Now from all the testimony, gentlemen of the jury, I think you can clearly conclude, first, that there was a complaint made there of this teacher for, among other things, excessive writing of letters and use of the mail box. There can't be any question about that in my mind. Second, that there was a reference to the mail carrier, whoever he might be, as authority for the statement. Third, that this mail carrier, the plaintiff, Geo. W. Wharen, was present and did not repudiate the statement. Fourth, this is not so clear, and is for you to say, and I am putting it to you with a perhaps-perhaps that information was given by somebody present and the impression was produced in good faith in the mind of McGee that this plaintiff made the statement. Now I put it with a perhaps, because it is not clear as the others. It is for you to determine from the weight of the credible testimony as you believe it, but you may find from the testimony if you so conclude. Then, fifth, we have the testimony, or derivable therefrom, the consideration that, while the plaintiff himself did not make the statement imputed to him, others made it about him, about the mail carrier, possibly referring to another mail carrier, but possibly referring to him, and perhaps easily appli |