114 Ky. 388 | Ky. Ct. App. | 1902
Opinion of the court by
— Reversing.
This appeal is to determine the validity of six clauses of the last will and testament of John D. O’Leary, a respected citizen and resident of Jefferson county. The will was a holograph. Certain of its provisions were held by the county judge to have been canceled and revoked. With the exception of the canceled clauses, it was admitted to probate. Appellant Thomas F. Coleman, suing for himself and for the heirs at law of John D. O’Leary, as a class, filed his bill, praying that the will be adjudged void as a whole; that the devises contained in 'each of th§ six clauses mentioned be declared void; that the estate be adjudged to be undevised estate, which descends to the heirs at law; and
“Clause 4. I give and bequeath to the Rt. Rev James M. Hayes, S. J., Chicago, 111., the sum of $3,000 for masses for the repose of the souls of my mother and my aunts, Ann and Ellen, and my own.”
“Clause 11. I give and bequeath to the Rt. Rev. Roman Catholic Bishop (for the time being) of Louisville the sum of $3,000, to be invested, and the income of which to be applied in rewards of merits to pupils in the parochial poor schools in Louisville.
“Clause 12. I give and bequeath to the Rt. Rev. Roman Catholic Bishop (for the time being) of Cork, Ireland, the sum of $3,000, to be applied to any charitable uses, and so as to do most good, in his judgment.
“Clause 13. I direct my executor to expend the sum of $1,000 for masses for the repose of my soul and those of my mother and aunts, to be said at the c-atbedral, Louisville.”
“Clause 20. All the remainder of my estate, after the payment of the specified legacies and bequests, I wish to be invested and placed in trust with the Rt. Rev. Bishop of the Catholic Diocese of Louisville, and three others to be chosen by him, for the establishment of a home for poor Catholic men, as soon as the proceeds of my estate may justify it.”
*400 “Clause 22. I give and bequeath to the Order of the Society of Jesus, known as the ‘Jesuit Order/ one hundred acres of land, at or near my place, Doneraile, in Jefferson and Bullitt counties, for the purpose of education or religion; they to have the privilege of selection on any lands on the west side of the Louisville & Nashville Railroad right of way.”
The .questions, therefore, to be determined by this court, involve simply the validity of these clauses. These questions are to be determined, not under the present statute,’ which, as amended, was approved May 12, 1893, and became a law October 10, 1893 (Kentucky Statutes, section 317 et seq.), but, as the testator died on May 14, 1893, must be determined by the statute in force at that time (General Statutes,,,p. 242, which is a re-enactment of 1 Revised Statutes, c. 14, p. 235). Crawford’s Heirs v. Thomas (21 R., 1100) 54 S. W., 197.
We shall first consider the clauses directing expenditures for masses for the repose of the souls of the testator and certain named relatives, being clauses 4 and 13 of the will. These clauses; undoubtedly express, definitely and distinctly, the intention of the testator. Indeed, the very certainty of the beneficiaries under these clauses is made the ground of attack, for there is no suggestion in this court either that they are void because of being indefinite, or as being bequests for superstitious uses; but the ground urged is that, being gifts to named persons for the benefit of the souls of the testator and of designated persons, these devises are not charities at all, but private trusts, and therefore void, as contravening the doctrine of perpetuities. The trustee in the fourth clause, who is also one of the heirs at law of testator, has filed an answer, stating want of knowledge as to whether any of the devises in the will is void for uncer
The next clause for consideration is clause 11, by which a trustee is selected and a trust created, the income whereof is to be applied in rewards of merit to poor pupils in the parochial schools of Louisville. A definite trustee is selected. The class to be benefited is plainly expressed; the intention is unmistakable; the bequest can be readily carried out by the named trustee, under the supervision of the court if necessary; and the object, plainly declared, is, in our judgment, a charitable one, within the meaning of the statute, being in aid of “schools of learning.” A similar bequest providing for prizes for essays upon medical subjects was sustained in Almy v. Jones, 17 R. I., 270, 21
The bequest in the twelfth, clause to the Bishop of Cork, to be applied to any charitable uses, and so as to do the most good, in his judgment, is practically identical in language with the bequest which was held invalid in the case of Spalding v. Industrial School, 107 Ky., 382 (21 R., 1107) 54 S. W., 200.
The point is made by counsel who was appointed attorney to defend for the Society of Jesus and the Bishop of Cork, upon the entry of the warning order, that their case is not before this court, because, although he filed demurrers for eadh 'defendant to the petition, and the chancellor declared these devises good, the judgment of July 11, 1901, neither overrules nor sustains either one of these demurrers, but only carries back to the petition the demurrers of the plaintiff to the answers filed by Bishop Mc-Oloskev and his associates and James M. Bayes. But inasmuch as the judgment dismissed absolutely the petition of the plaintiff, and seems to intend that the petition is dismissed as to all the defendants, we have considered the case as if all the parties named as appellees were before the court, and we are of opinion that the chancellor’s ruling as to this clause was erroneous.
We shall next consider the twenty-second clause, bequeathing to the Order of the Society of Jesus, known as the “Jesuit Order,” 100 acres of land at or near the tes^ tator’s place, “Doneraile,” in Jefferson and Bullitt counties, for the purposes of education or religion, they to have the privilege of selection on any lands on the west side of the Louisville & Nashville Railroad right of way. The Society of Jesus is a religious order founded by Ignatius Loyola. It is understood to be composed of mis
We come now to the consideration of the residuary clause, being clause 20: “All the remainder of my estate, after the payment of the specified legacies and bequests, I wish to be invested and placed in trust with the Rt. Rev. Bishop of the Catholic Diocese of Louisville, and three others, to be chosen by him, for the establishment of a home for poor Catholic men, as soon as the proceeds of my estate may justify it.” This clause also is attacked upon the ground that it is too indefinite to be executed, and counsel upon both sides have argued it with great zeal and learning, and not altogether without temper. There is no objection to the trustee selected, and we see no valid objection to the power granted him to select his colleagues. The sole question is whether the object for which this bequest is made is sufficiently definite to be enforced. Upon •this question the argument has taken such a range as to render necessary a consideration of the history of the statute in force at the date of the testator’s death. The stat
We do not for a moment suppose this enactment was intended as a hostile attack upon charitable uses, or as looking toward such a crusade against them as took place in the time of Henry VIII; but that it was intended to limit, to define, and to set boundaries to the powers of the courts we have no manner of doubt, from an examination of the statute itself; and this construction was given to it by perhaps the greatest of our judges, in the only opinion of this court in which the effect and object of the Kentucky statute appear to have been considered and adjudged. The same great judge had, in the Mobre case, undertaken to limit the application of the cy pres doctrine by the chancellor. The doctrine then announced had not been rigidly adhered to. In Attorney General v. Wallace’s Devisees, 7 B. Mon., 612, and in the Curling case, 8 Dana, 38, 33 Am. Dec., 475, the results of the opinions by Judge Breek and by Judge Robertson himself are not sup
We may notice here the very interesting- argument of appellants’ counsel as to the difference between the statute of Elizabeth and the Kentucky statute. In the older statute, these words are used, “for relief of aged, impotent and poor people,” while our statute reads, “for the relief
Nor do we think that the devise in' question is objectionable as a sectarian charity, or as a devise to provide for .hospitality rather than charity. This court has never recognized it as an objection to a charitable use that its bounty was confined to members of one race of one religion. Nor, on the other hand, do we think that the word “poor,” as used in this devise, can be properly construed as indicating a merely hospitable purpose. The purpose of this devise was, in our judgment, charitable. The sole question is whether it was definite enough to be enforced.
Tested by this statute, is the bequest too vague and indefinite to be sustained? It is suggested for appellee that, in order that the court may be able to exercise the powers given by section 2 of the act (1 Revised Statutes, p. 236),
On the other hand, these objections are urged to the validity of the devise: First, that it does not name a charitable object under our statute, which requires that the poor who may be beneficiaries of a charitable use must also be aged or impotent — an objection already considered; second, because no power is given to any one to select the object of the charity; third, because no place or district or country is named in which the home is to be established, and no place or district or class is reasonably defined from which the beneficiaries are to be selected; and, fourth, because no one is given power to make such selections. Assuming the object of the devise to be sufficiently definite, we have little difficuly with the second objection. A trustee is named, the appointment of three associates is provided for, and the fund is devoted “for the establishment of a home for poor Catholic men as soon as the proceeds of my estate may justify it.” And, if the will furnishes a guide to the purpose of the testator, the trustee and his associates have authority to act in the selection of a site for the home, and in its establishment and management under the control and direction of the chancellor. But it is objected that
The paragraphs of the answer which plead knowledge on the part of the appellants of the administration under the will are good to the extent that, in so far) as! the appellants have knowingly permitted the executors and trustees under the void clauses to proceed with the execution of the will as if valid, and to expend the fund for the benefit of the supposed objects of charity, no recovery can be had, nor, if investments have been made in execution of the supposed purposes of the void clauses, can recovery be had for the loss, if any, occasioned by such reinvestment.
In the particulars indicated in the opinion, the action of the chancellor in carrying back and sustaining the demurrer to the petition was erroneous. The demurrer should have .been .sustained in part, as indicated herein.
- If appellants can show a refusal to recognize their visitorial right, or if any abuse of the trust or misapplication
For the reasons, given and to the extent indicated, the judgment is reversed, and cause remanded with directions to set aside the judgment dismissing the petition, and for further proceedings consistent herewith.
Whole court sitting.
Judge Paynter dissents from so much of the opinion as holds the bequest to the Jesuit order void.
Petition fot rehearing by appellee overruled.