12041 | S.C. | Jul 27, 1926
Lead Opinion
July 27, 1926. The opinion of the Court was delivered by The "case" contains the following statement:
"This action was commenced December 10, 1924, by the service of a summons and complaint, and was tried by Presiding Judge Featherstone, without a jury, at the spring term of the Court of Common Pleas for Richland County. The testimony of the witnesses was taken in open Court in the presence of the presiding Judge; the usual practice of referring the cause to the Master was not followed. The decree of the Court was filed on the 15th day of April, 1925, from which Mrs. Yawn and Mrs. Kendall have appealed."
Let the decree of Judge Featherstone be reported.
The exceptions of Mrs. Yawn maintain three propositions and are as follows:
"(1) The plan proposed by the trustees should not receive the approval of the Courts.
"(2) The charity proposed by the will is invalid, being impracticable, indefinite, and uncertain. Not a true charity.
"(3) The appellant, Margaret C. Yawn, is entitled to the property in question."
The issues as raised by the exceptions of Mrs. Kendall are:
"(a) That the property vested in the city on the conditions mentioned in the will and that the primary purpose of the will was to establish an orphanage in which should be taught, as an incident of the main purpose, the branches mentioned in the will. That the city has had a reasonable time in which to carry out and into effect the terms and conditions of the will, or to signify its acceptance. That upon the failure of the city to carry out the purposes of the will (and turning it over to the school trustees as has been done is not a carrying out of the will) in a reasonable time, the property reverts to the heirs of the testatrix and passes as intestate property.
"(b) That if the trusts are too indefinite to be carried out, or if the city does not carry out the terms and conditions *283 provided in the will, the property passes to Mrs. Kendall, the only heir, as intestate property, and is not covered or embraced in the residuary clause of the will."
The position taken by the city of Columbia and the school district is:
"The city and the school district take the position that the proposed use of this property as a regular school unit of the city system is a valid and proper construction and carrying out of the will."
A careful examination of the will of Mrs. Carroll, taken in its entirety, shows the purpose to be the establishment of an orphanage, carrying the name of the Carroll Memorial Orphanage, and the school and branches to be taught were incidents of this main purpose. There is no doubt that the intent of Mrs. Carroll was to leave the property, and it was to be maintained as an independent institution, and that the purpose was to educate for domestic servants. The object of all construction is to ascertain the intention of the testator. Burriss v. Burriss, 104 S.C. 445;
Courts of Equity in this State cannot devote any portion of a fund dedicated to a charitable use to any object not contemplated by the donor. Where a devise was made of a fund for the use and support of a school or institution for the benefit of poor children in a named town, any permanent appropriation of the proceeds of the fund to aid the public schools of that town, and thus lighten the taxes assessed upon the property of the city, would be a perversion of the fund from the legitimate objects of the donations.
In Morice v. Bishop, 9 Ves., 399 (quoted with approval inDye v. Beaver Creek Church,
It is clear that Mrs. Carroll intended that the residence should be preserved under the name of the Carroll Memorial Orphanage, and that in the same an industrial school should be maintained for the children of indigent white persons living in or near the City of Columbia, for the purpose of training them for domestic service, so that they could gain an honest livelihood and be efficient and useful when so employed in families.
Under the will, there is no authority to use the property for any class except the children of indigent white persons, and to use it for others would be unauthorized and necessarily subversive of the testatrix's intention. The meaning that she gave in the will of the word "industrial" is clearly defined and limited by her words: Preparation for domestic service in families as a livelihood." No other form of industrial training will satisfy her intention. That is the only reasonable interpretation that can be put on the will. The will is unequivocal and cannot permit of doubt.
There is no doubt that the plan of the trustees is a subversion of the trust, as under her will she created a trust and expected it to be carried out as she intended it to be, and under her will it cannot be turned over to the public school system as contemplated; that would destroy the very object and intention of the testatrix.
Under our decisions, the plan proposed by the board cannot stand, being a wide departure from the plan the testatrix had in mind. Busby v. Mitchell,
We think that the attempted trust is invalid, being indefinite and uncertain and impracticable and providing no way to carry out the clear intention of the testatrix as expressed in the will. *285
It is conceded that it is impossible to use the property in the manner desired by the testatrix, but that fact does not confer upon the Courts the power to change the beneficiaries of a charitable trust.
We think that, the trust being void, the property passed under the residuary clause of her will or became intestate property; and Mrs. Screven having died leaving no heir except her two sisters, who died after her, leaving wills under which Mrs. Yawn become entitled, and not Mrs. Kendall, who claims as heir at law. The exceptions of Mrs. Kendall, wherein she alleges that she is entitled to the property as heir at law, are overruled. The exceptions of Mrs. Yawn are sustained and judgment reversed.
MR. JUSTICE MARION and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.
MR. JUSTICE COTHRAN concurs in part, and dissents in part.
MR. CHIEF JUSTICE GARY did not participate.
Dissenting Opinion
I dissent from the conclusion reached by Mr. Justice Watts in this case to this extent:
I think, for the reasons advanced by his Honor, Judge Featherstone, that the trust is a valid one, and to the authorities cited by him I add the case of Harter v. Johnson,
I agree with Mr. Justice Watts in his conclusion that the trustee, the City of Columbia, in the plan proposed, is not complying with the purposes of the trust.
What the creator of the trust intended was that the trustee should establish, upon the real estate devised, an institution in which the children, male and female, of indigent white persons living in or near the City of Columbia, should be trained in domestic service. That this referred to a service in which they would be employed and paid for, after the training had been completed, is demonstrated by the phrase, *286 "thus enabling them to gain an honest livelihood or support for themselves and be efficient and useful when so employedin families."
The City of Columbia, having accepted the trust, must see that it is fulfilled, or surrender it. It is the duty of the Court to see that this is done, and to appoint a new trustee should the present trustee fail in its duty.
We may think that the trust is impracticable and unwise, but we cannot anticipate the conclusion that it is impossible of fulfillment. The property was that of the testatrix and she had the power of disposing of it according to her will, if not opposed to law; and, until by experiment it shall have been shown to be impossible of enforcement, the testatrix is, at least, entitled to that experiment.
The trust answers every requirement of a charitable trust, upon its face, is not in conflict with any provision of constitutional or statutory law, and is not opposed to any principle of public policy that I can conceive.
Even if it should be positively ascertained that the trust as outlined by the founder is so impracticable as to be impossible of enforcement, it does not necessarily follow that a reversion to the estate of the founder is the result. the trust will still be under the control of the Court to make such disposition of it as will comport with the evident purpose of the founder.
I think that the decree should be modified to conform herewith, and that the case should be remanded to the Circuit Court and held there, the administration of the trust being under the supervision and control of the Court.