Barne's Heirs v. Barnes, 2 F. Cas. 855

Barne's Heirs v. Barnes

2 F. Cas. 855 | U.S. Circuit Court for the District of District of Columbia | 1827

CRANCH, Chief Judge.

The complainants contend that the charitable trusts, intended to be created by this will are void for uncertainty, and that the defendants (the executors) are trustees for the complainants (who are heirs at law, and next of kin to the testator,) as to all the property of which the testator died intestate.

1. The first of these charitable trusts, is to lay out $200 a year in wood, meal, and clothing, to be distributed among the poor and necessitous widows and orphans, within the corporation of Georgetown. This trust seems to be admitted by the defendants to be void, under the authority of Trippe v. Frazier, 4 Har. & J. 446, and Dashiell v. Attorney-General, 5 Har. & J. 398, and I am of the same opinion. I think those cases are decisive, that the statute of Elizabeth (of charitable uses) is not in force in Maryland; and was not at the time of the separation of this part of the district from that state.

2. The second charitable trust is, that if the testator’s estate, in a few years, should be such as to enable his executors to extend their views to a poor-house for the county or town; and any “progressive proceedings towards such an end should become certain and conclusive,” he bequeathes “a sum not exceeding $1,000 as occasionally wanted and demanded, towards its establishment,” and he directs his executors “to pay the same to the authorities having power and right to receive the same for such a purpose;” and he, afterwards, in case his executors should suffer the annual proceeds of his estate to accumulate, gives another sum of $1,000, out of such accumulations, to be applied to that purpose, in further|Rid of the establishment and maintenance of a poor-house; “but neither of such bequests is to be paid or applied until his executors shall perceive that such proceedings have been begun as will render the final accomplishment and completion of the poorhouse reasonably certain.” The corporation of Georgetown, who are made defendants to this bill, claim these two legacies of $1,000 each, and contend, that if they were not bound to support the poor of the town at the time of the death of the testator, yet they are now bound to do it, by an alteration of their charter; and, as incidental to that duty, they have power to build a poor-house; and have passed a by-law for that purpose, to which they refer in their answer; and they aver that such proceedings have been begun as render the final accomplishment and completion of the poor-house reasonably certain. The corporation of Georgetown also claims all the residue of the proceeds of the estate after the death of the annuitants Abigail and Eleanor, on the ground that all the other *858charitable trusts are void for uncertainty, and the testator has clearly expressed his intention and will to be, that the whole proceeds of his estate should be expended in such charities as he has named, or as near thereto as may be; and that if some of the trusts are void, the good ones shall take the whole fund. The statute of charitable uses (43 Eliz. c. 4) never was in force in Maryland. Trippe v. Frazier, 4 Har. & J. 446; Dashiell v. Attorney General, 5 Har. & J. 398, 403, and 6 Har. & J. 1. The English decisions, therefore, upon that statute are not applicable to the present ease. The peculiar doctrines of the English law in regard to charitable devises, are founded altogether upon that statute. Trustees of Phila. Baptist Ass’n v. Hart’s Ex’rs, 4 Wheat. [17 U. S.] 33-48. This case, therefore, must be decided as an ordinary case of legacy and trust. If either the object of the legacy, or the person of the legatee, or cestui que trust, be so uncertain that no one can show a title to claim the legacy, or enforce the execution of the trust, the legacy, or the trust, is void, even in the case of an executory devise.

If the bequest for a poor-house is to be considered as an executed, not an executory, devise, it is void or lapsed, because there was no person competent to take, at the death ot the testator, [jf it be an executory devise, it is also void, because it is not necessarily to be executed within a life in being at the time of the testator’s death, or within twenty-one years thereafter. There is no limit to the time of its execution. The trust was to continue forever; and an hundred years might elapse before there should be “authorities having power and right to receive the same for such a purpose,” and before “such proceedings shall have been begun as will render the final accomplishment and completion of the said poor-house or hospital reasonably certain.” The time may never come, and yet the next of kin wilk be deprived of the property. " —

The same reason applies to the trust to dispose of the whole of the annual proceeds of the residue of his estate, in such charities as were thereinbefore mentioned, &c., and I think it is equally void for uncertainty.

I am, therefore, of opinion, upon the whole, that these charitable bequests are all void, and that the complainants are entitled to the relief which they have prayed.

THRUSTON, Circuit Judge,

concurred. MORSELL, Circuit Judge, did not give an opinion.

Decreed, that all these charitable trusts and bequests are void, and that the executors and trustees shall invest $1,750 in the six per cent, stock of the corporation of Georgetown, in the names of the executors, to pay the annuities to Abigail and Eleanor, and after their death shall transfer the stock to the complainants, and shall transfer all the residue of the estate to the complainants immediately, in equal parts.

No appeal was taken.