187 Ga. 368 | Ga. | 1938
Since the only questions for determination relate to orders sustaining motions to dismiss the answer and cross-petition
It is apparent from a consideration of the entire will and the codicil that the legacy “to the governing authorities of the Central Howard Association, same being an Orphan’s Home located at Macon, Georgia,” was not intended for the benefit of any particular institution or individual, but was a devise or bequest to a general charitable use, the beneficiaries of which were such orphans as might from time to time become inmates of the nominated orphan’s home located at Macon, Georgia. The manifest intention was to create a trust for the-benefit of this general class, and to invest the designated “governing authorities” merely with the office of trustee, with no other right or function. As thus construed the devise in question is sufficiently definite and specific in its objects, and is capable of being executed. In Newson v. Starke, supra, it was said: “The special chancery jurisdiction over charitable bequests grows out of the rule that, in cases of private right, courts will not enforce uncertainties, and that the parties at interest must be capable of definite ascertainment. It is of the very nature of a charity that this is impossible, and from the most ancient times courts of chancery in England have applied very different rules in determining the validity of charitable bequests from the rules applied to such as were not charitable. A less degree of certainty as to the objects of the bequest and as to the mode of its application has been required than was requisite in other bequests. It is of the very essence of a charitable bequest that the objects to be benefited shall be to some extent indefinite. . . When the framers of our Code declared our courts of chancery to have jurisdiction to enforce charitable bequests, declared what were charities and recognized the doctrine of cy pres; they intended to say something more than that courts of equity could enforce trusts. There was no propriety in giving this special jurisdiction if a bequest for charitable purposes, to be valid, must have the same certainty and definiteness as to its objects and mode of division as bequests, not for charitable purposes. There was no reason for defining charitable purposes if
In 11 C. J. 363, § 77, it is stated: “Where the testator makes a bequest to some particular object of charity, as to a particular charitable institution, and the bequest fails because the object designated ceases to exist during the testator’s lifetime, the fund never vests in charity at all, but the legacy lapses, and the doctrine of cy pres has no application.” It is insisted for the plaintiffs in error that this statement expresses a correct principle of law and one which is applicable in the present case. We can not agree that the facts of the instant case are such as to bring it within the quoted statement. Examination by this court of the several cases cited to this text clearly reveals that the present case is of a different type, in that the devise was not to a particular object of charity, as to a particular- charitable institution, with no general charitable intent.
It follows from wliat has been said that the heirs at law of the testator had no interest in the bequest to the governing authorities of the Central Howard Association, and that the court did not err in striking the answer and cross-petition filed by these parties. Since the bequest does not lapse, but will be applied by the court according to the general intention of the testator, whatever disposition the court may finally decide to make of it will be of no concern to the heirs at law. While it may also be true that neither Central Howard Association nor the Georgia Industrial Home had any such claim upon this bequest as to justify their motions to dismiss the answer and cross-petition of the heirs at law (MacKenzie v. Trustees, 67 N. J. Eq. 652 (61 Atl. 1027, 3 L. R. A. (N. S.) 227); 11 C. J. 366, 367, §§ 83-86), the judgment of dismissal was nevertheless correct, and may be sustained as if made by the court upon its own motion. We have reached the foregoing conclusions without reference to the act of February 22, 1937 (Ga. L. 1937, p. 593), which the plaintiffs in error say is inapplicable.
Judgment affirmed.