30 Colo. 231 | Colo. | 1902
delivered the opinion of the court.
We shall not dwell upon the objection made that the county court was the proper tribunal in which to bring this action, and that the plaintiff, by not contesting in the county court, waived his right to question the validity of the will or any of its devises in any other proceeding, because we are not required to pass upon these questions in order to determine this controversy. We should, perhaps, suggest that the statute makes the probate of a will in this state a solemn proceeding, and that it appears to invest the county court with jurisdiction-to determine, all ques
We shall first dispose of the question presented by the plaintiff that the property of the testator acquired after the execution of the will did not pass, upon his death, to the executors and trustees under the fourteenth and fifteenth clauses of the will. Only such real estate as the testator owned at the time of the execution of his will could pass by the will under the common law. But by section 4652, Mills’ Annotated' Statutes, a testator is given power to devise the real estate “which he hath, or at the time of his death shall have. ’ ’ This section of our statute was copied from Illinois, and the courts of that state, long prior to its adoption here, construed it as abrogating the rule of the common law; and, under the familiar rule of construction, which we shall presently state, the decisions of Illinois should control.
It is held in Illinois, that if no intention appears from the will to devise after-acquired property, it will not pass, but that such intention is sufficiently shown by the language, “I bequeath all my property, real and personal, wherever the same may be;” and that “it will be presumed, where the contrary does not appear that a party deliberately making his will does not intend to leave anything undisposed of.” Willis v. Watson, 4 Scam. 64; Missionary Society v. Mead, 131 Ill. 338.
In the will under consideration this language is employed: “I give, devise and bequeath all my real and personal esate of whatsoever nature or kind soever and wheresoever situated,” etc., and “all the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situated,” etc. This, in our judgment, shows plainly the intention of the testator to dispose of all his estate; and we must hold that the entire estate of which George W.
We are of the opinion that the statute 43 Elizabeth, chapter 4, so far as applicable, is in force in the state of Colorado. Our statute which provides that the common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament made in aid of or to supply the defects of the common law, prior to the fourth year of James First, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority, was. enacted in 1861 and repealed and re-enacted in 1868. Prior to the re-enactment, the Illinois authorities had held that the statute of Elizabeth referred to was in force in the state of Illinois. Our statute was under consideration by this court in the case of Chilcott v. Hart, 23 Colo. 40, and it is there said: “It must be presumed that our legislature was familiar with these decisions, and under a familiar rule of construction, unless there are peculiar reasons for a contrary holding, when a state adopts the statute of another state, the construction which the courts of the latter state put upon the statute before such adoption should be followed by the courts of the adopting state. ’ ’
It is well settled that long prior to the enactment of the statute of Elizabeth, the courts of chancery of England had exercised jurisdiction over charitable trusts, and had enforced them under its judicial power whenever the intention of the testator was clearly expressed.
Mr. Justice Story, in the case of Vidal v. Girard’s Executors, 2 Howard, 127, in reference to the case of The Trustees of the Philadelphia Baptist Association v. Hart’s Executors, 4 Wheat. 1, says: ‘ ‘ The court, upon that occasion, went into an elaborate ex-
“But very strong additional light has been thrown upon this subject by the recent publications of the commissioners on the public records of England, which contain a very curious and interesting collection of the chancery records in the reign of Queen Elizabeth, and in the earlier reigns. Among these are found many cases in which the court of chancery entertained jurisdiction over charities long before the statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish in the most satisfactory and conclusive manner that cases of charities where there were trustees appointed for general and indefinite charities, as well as for specific charities, were familiarly known to, and acted upon, and enforced in the court of chancery. In some of these cases the charities were not only of an uncertain and indefinite nature, but, as far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take. # * * If, then, this be the true state of the
And, citing from Witman v. Lex, 17 Serg. & Rawle, 88: “It is immaterial whether the person to take be in esse or not, or whether the legatee were at the time of the bequest a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator’s bounty to those objects ; or whether their corporate designation be mistaken. If the intention sufficiently appears in the bequest, it would be valid. In the latter case certain bequests given by the will of Mrs. Zane to the Yearly Meeting of Friends in Philadelphia, an unincorporated association, for purposes of .general and indefinite charity, were, as well as other bequests of a kindred nature, held to be good and valid; and were enforced accordingly. The case then, according to our judgment, is completely closed in by the principles and authorities already mentioned, and is that of a valid charity in Pennsylvania, unless it is rendered void by the remaining objection which has been taken to it.”
It is stated by Woerner in his work on Administration that “The statute of 43 Eliz. c. 4, has been abolished, or never was in force, in Maryland, Michigan, Minnesota, New York, Virgina, West Virginia, and, it seems, Wisconsin; and charitable uses are' in
So' that whether the statute of Elizabeth is held' to be in force in this state or not, the principles of the common law, as it existed prior to the fourth year of James I., are in force in' this state; and charitable uses are to be enforced here in accordance with the principles of the common law.
The decisions in the United States concerning charitable trusts cannot be reconciled. They can be classified according to states. This has been done by Mr. Woerner, and the authorities cited by him support his text. It seems that at the common law a bequest or devise to charity is peculiarly favored.
The following cases and the citations therein are decisive of one or more of the various questions involved in this controversy, and in them we find the following propositions fully sustained: That the statute of 43 Elizabeth, chapter 4, so far as it recognizes or indicates what are charitable uses, and in so far as it gives validity to gifts for such' uses, is in force in this country as a part of the common law, unless it has been expressly repealed. That the details of the statute, and the remedies provided therein, are not applicable to our conditions or institutions and are not in force here. That, independently
Z' It may be stated as a general proposition of law, that a corporation capable of holding real estate is capable also of executing a charitable trust, unless the statute or the articles of incorporation prohibit it. And unless specially restrained, municipal corporations may take and hold property in their own right by direct gift, conveyance or devise, in trust, for purposes germane to the objects of the corporation, or which will promote, aid, or assist in carrying out or perfecting those objects. So, in this case, unless the objects of the incorporation of the city of Denver are foreign to the purposes expressed in this trust, the city of Denver is capable of taking the property and executing the trust in accordance with the provisions of the will.
It is said that by the constitution and laws of Colorado the municipalities of the state are inferentially prohibited from maintaining schools; that that function of government is left to the school districts of the state; and that this provision of the will of George W. Clayton should not be enforced because of
Gilbert Hatheway died in 1871, and by will gave to the corporation of the village of New Baltimore fifteen thousand dollars to be used in the erection of a school building to be used as a high school and to be suitable for that purpose, and to be known as the Hatheway School. The legislature of Michigan, in the year 1873, passed an act enabling the village to accept the gift. In the cáse of Hatheway v. Sackett, 32 Mich., 99, a case in which this legacy was under consideration, the court said: “They (the plaintiffs in error) insist that our general state policy is opposed to all connection between village government and school administration, and then seek to infer that this general policy is applicable to this specific case. But the act of 1873 negatives this inference; because, whatever its force as an enabling act, it is, at least, a direct and explicit expression of the sense of Jhe legislature that in truth it is not impolitic for the village of New Baltimore to accept this very bequest. We have, then, distinct and solemn evidence that the legislature have considered it entirely consistent for the corporation to have the identical legacy in question. ’ ’
It is said by Judge Dillon, in his work on Municipal Corporations, that “Municipal and public corporations may be the objects of public and private bounty. This is reasonable and just. They are in law clothed with the power of individuality. They are placed by law under various obligations and duties. Burdens of a peculiar character rest upon compact populations residing within restricted and narrow, limits, to meet which property and revenues
And in Perry on Trusts, § 43, it is said: Municipal corporations cannot “act as trustees if they are forbidden to take and hold lands, as by the statutes of mortmain, nor if they are not empowered to take the property. But if the trusts are within the general scope of the purposes of the institution of the corporation, or if they are collateral to its general purposes, but germane to them, as if the trusts relate to matters which will promote and aid the general purposes, of the corporation, it may take and hold, and be compelled to execute them, if it accepts them. Thus towns, cities, and parishes may take and hold property in trust for the establishment of colleges, for the purpose of educating the poor, for the relief of the poor, though not paupers, by furnishing them fuel at a low price, and for the support of schools, or for any educational or charitable purposes within the scope of its charter.” And cases are cited in support of the text.
Charles McMichen, a citizen and resident of Cincinnati, made his will in 1855, and died in 1858 without issue. He devised' certain real and personal property to the city of Cincinnati and its successors, in trust, forever, for the purpose of- building, estab
Stephen Girard died in the year 1831, and by his will devised and bequeathed to the city of Philadelphia the residue of his estate in trust for the establishment and support of a permanent college for the education of poor white male orphans. This devise was sustained by the supreme court of the United States, and the court held, that ‘ ‘ The corporation of the city of Philadelphia is capable of taking under a devise of real and personal estate in trust for the establishment and support of a college for poor orphan boys, and can execute the trust. Vidal v. Girard, 2 How., 61.
Bryan Mullanphy died in the year 1851, and by his will devised and bequeathed the undivided one-third of his property to the city of St. Louis, in trust, “to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way to settle in the West,” and this trust was sustained by the supreme court of Missouri, in the case of Chambers v. City of St. Louis, 29 Mo., 543.
It is said that the legislature has not granted to the city of Denver authority to acquire and hold real and personal property, except as. it is necessary for the public uses of the inhabitants thereof, and that for that reason the bequest and devise to the city of Denver is an invalid one and should be declared void, and the court should hold that as to his residuary estate George W. Clayton died intestate. The decisions are, as we have cited, to the effect that where municipal corporations are organized for purely governmental purposes, they may accept gifts for charity if the charity is germane to the general purposes of the organization. The general
The sections of the charters of Philadelphia, Cincinnati, and St. Louis quoted in the cases cited show that the charters of these cities and the charter of Denver are practically alike. In each is contained the general provisions found in nearly all charters, that tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness. If the city of Philadelphia can hold property in trust for the education of poor white male orphans, and the city of Cincinnati can lawfully execute a trust for the education of boys and girls, and the city of St. Louis can, without violating its organic law, administer a trust “for the purpose of furnishing aid to poor emigrants” passing through the city, there is no apparent reason why Denver, under her charter, which provides for the entertainment of visitors (trade), for the encouragement of manufactures (industry), for the assistance of charitable organizations, and for the good order, health, good government, and general welfare of the city, cannot accept and execute a trust for the education of poor white male orphans.
Furthermore, the legislature, by the act of 1901, clothed the city of Denver with full power and authority to accept the trust created under the will, and to administer it according to the terms and provisions of the devise. It is said that this devise must be construed with reference to the capacity of
An act of the New York legislature was passed after the death of a testator, authorizing a town to accept a gift for charitable purposes made by a resident of Massachusetts. The validity of the gift was contested in the Massachusetts court. In Fellows v. Miner, 119 Mass., 541, the court says: “This bequest is ‘to the town of Kinderhook, New York, in its corporate capacity,’ in trust for the charitable uses and purposes declared in the will. The St. of New York of 1875, c. 200, sec 1, expressly authorizes that town in its corporate capacity to receive and hold in trust all property bequeathed to it by this will, for the uses and purposes therein mentioned. The bequest being valid by the law of this state, the town named in the will as trustee being now enabled, by a special act of the legislature of the state in which it is situated, to take the bequest, and the trust being directed by the will to be executed in that state and for the.benefit of the inhabitants of that town, the court might properly direct that the fund be paid over to the town, if it were clear that the trust could thereupon be lawfully administered according to the will of the testator.”
In the case of DeCamp v. Dobbins, 29 N. J. Eq., 36, the court says: “If a corporation takes land
Mr. Justice Thompson, in the case of Inglis v. Trustees of the Sailor’s Snug Harbor, 3 Peters, 99, said, in reference to the will of Robert Richard Randall and the act of the legislature passed after his death: “If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarded against, and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty in my judgment is here presented. If the intention of the testator can not be carried into effect, precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty.” And Mr. Justice Johnson, in a concurring opinion,, said: “But as a charity, to be governed by the law of the state of New Tork, it appears to me almost idle to
Counsel say that the will provides no method by which the beneficiaries shall be selected, and there being no prescribed means by which they can be ascertained as a class or as individuals, the trust is therefore void because of this indefiniteness. The will provides that as many poor white male orphans, born of reputable parents, as the income shall be adequate to maintain shall be admitted to the college. And it is said that the word reputable is not defined by the testator, and that no person is designated to determine who are entitled to admission as students. In the boohs it is said the thing given becomes a charity when the uncertainty of the recipient begins. It is no objection, then, to the enforcement of this devise that the beneficiaries are uncertain. But let us see whether the will itself is so vague and uncertain. These words appear in the will of Mr. Clayton: “The college building shall be of stone, substantially built upon a plat of ground of sufficient size to admit of the construction of additional college buildings if the same shall become necessary or expedient. The institution above mentioned shall be established within ten years from and after my decease, as may be practicable in the judgment of my executors. They shall carefully devise and promulgate such rules and regulations as they shall deem proper for the government of the institution, and which shall be carried out and be obligatory with the same force and effect as if herein set forth at large.” This is, in our judgment, an express authority for the executors of the will of Mr. Clayton to promulgate rules and regulations for the control and management of this college, which shall be obligatory upon the trustees of the college after it is
In the case of Hunt v. Fowler, 121 Ill., 269, the court had under consideration a devise of the residue of an estate directing that the income be distributed annually ‘ ‘ among the worthy poor of the city of Lasalle, in such manner as the court of chancery may direct; ’ ’ and it was held that the residuary bequest was a valid charitable gift and should be carried into effect by a court of chancery. And further, that in the case of a charitable bequest it is immaterial how vague, indefinite and uncertain the object of the testator’s bounty may be, provided there is a discretionary power vested in some one over its application to those objects. Mr. Justice Sheldon, delivering the opinion of the court, at page 276, states: “The entire contention in this case arises upon the construction, validity and effect of this residuary clause of the codicil. It is insisted that this clause is void for uncertainty as to the benficiaries. This is not a bequest to charity.-generally or to the poor generally, but to the worthy poor of the city of Lasalle. The class here is definite — the worthy poor of the city of Lasalle — but the individuals of the class to whom the bounty is to be distributed are uncertain. There is always this uncertainty as to individuals in the case of public charities, and it is this feature of uncertainty which distinguishes pub-
We are therefore of the opinion that not only is power expressly granted by the terms of this will to the executors to designate and appoint persons to be entitled to the privileges conferred by the will of Mr. Clayton, but that the appointment of trustees, granting them authority to control and supervise the college, carries with it by necessary implication the authority to designate the beneficiaries.
“A charity,” said Mr. Justice Gray, when of the supreme court of Massachusetts, “in a legal sense, may be fully defined 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 or maintaining public buildings or works, or otherwise lessening the burdens of government.”
Here, then, is a public charity. Through it Mr. Clayton seeks to bring the minds and hearts of poor orphans under the refining influence of education. After making such provision as he thought proper for the natural objects of his bounty, he has selected, as deserving of his benevolence, the poor white orphan boys of Denver and Colorado, and has devoted the residue of his great fortune to the erection and support of a permanent college for their free instruction and maintenance, that they may become useful citizens and honorable members of society. It is an indulgent, edifying, and worthy charity. It will lessen Denver’s burdens of government. To thousands of poor orphan boys it will be a blessing forever, and it will be by. them forever blest.
Our conclusions, therefore, are: That “the ed
For the reasons given, the judgment of the district court is affirmed.
Affirmed.