142 Iowa 434 | Iowa | 1909
The objections to the clause are: (1) That the beneficiaries are uncertain and impossible of identification; (2) no trustee is designated to select them; and (3) no trust is created. In passing on the questions thus raised, it will be well to keep in mind the suggestion of Gibson, O. J., in Bask v. Bask, 9 Pa. 260, that the courts have no more authority to make wills for the dead than contracts for the living, according to judicial notions of fitness and propriety, and also the statement of Ryan, C. J., in Dodge v. Williams, 46 Wis. 10 (1 N. W. 92, 50 N. W. 1103), that it is as much the duty of courts to uphold and enforce an individual’s will .after the death as to uphold and enforce his contracts made during life.
Under that statute, as well as independent of it, the purposes of the bequest before us must be regarded as charitable. Indeed, the relief of the poor and unfortunate has been, and doubtless will ever continue to be, the most prolific field of charity. That trusts for the benefit of the poor of a designated city or locality will be enforced is no longer an open question. Hunt v. Fowler, 121 Ill. 269, 277, (12 N. E. 331, 17 N. E. 491); Phillips v. Harrow, 93 Iowa, 94; Landis v. Wooden, 1 Ohio St. 160 (59 Am. Dec. 615); Hesketh v. Murphy, 35 N. J. Eq. 23; Id., 36 N. J. Eq. 304; Howard v. American Peace Society, 49
In Moore’s Heirs v. Moore’s Devisees, 4 Dana (Ky.) 354 (29 Am. Dec. 417) the will provided that, in event of the death of the testator’s son before attaining majority, the estate be “converted into a fund for educating some poor orphans of this county (Harrison) to be selected by the county court, who are the guardians of such, and to be confined to such as are not able to educate themselves. That it may do as much good that way as it can, I desire the funds shall be taken and loaned out at interest, so as to be rendered a perpetual fund, and the interest only to be applied on their tuition — thereby affording a partial good to as many orphans as the scanty pittance will allow.” In sustaining the bequest, the court, speaking through Robertson, C. J., after citing numerous English cases, and especially Moggridge v. Thackwell, 7 Ves. 75, deduces three conclusion's: These concur in establishing:
(1) That when the charity is not given to trustees, and no particular object is designated, nor any person appointed to select the object, the king, as parens patriae, appoints the object,- under his sign manual, and the chancellor, as keeper of the great seal, directs the application, by the Attorney General to the crown, to make the appointment. In. this class of cases the chancellor does not act judicially as a court of equity. (2) When the donor refers to a future selection of the object by himself, and dies without making any selection, or when trustees, appointed for that purpose, die without acting, or when the fund is superfluous, the chancellor not only will appoint the charity, but will apply it according to a scheme to be submitted by the master in chancery. (3) When an ascertainable object is designated by the donor, in general or collective terms, as the poor of a given county or parish, or when a person is appointed by him to select a described portion, or kind or number from a designated class, the chancellor, sitting as judge in equity, will interpose on the ground of trust.
In the two first classes, unless the donor manifest an intention to restrict his bounty to some general object of charity embraced by the statute, the legacy or gift will be void, and neither the king nor the chancellor can make any application of it. In the third class, if there be an available trust according to the common law, it is not material whether there be a charity within the statute; but if there be no trust that would be good at common law, and the object of the bounty be collective, and consequently indefinite and incapable of taking without the aid of the common statute — as, for example, a described class of unincorporated persons, as the mechanics of a particular place, the members of a specified church, or the poor of a designated town, or parish, or county — then, unless the selected object be such as the statute' recognizes as charity, the common law, and not the statute, applies, and the legacy or gift will, of course, be deemed void: but if the object be a charity, according to the statute, the gift or legacy will be deemed valid, and may be upheld or enforced by a court of equity, as an implied trust, made good and effectual by the operation of the statute.
' The bequest was held to be one of the third class, and, after pointing out that the others called for the exercise of prerogative powers not possessed by the courts of this country, it was said that:
Whenever the only objection to a devise or legacy is that it is for the benefit of a class of private individuals, described collectively by some characteristic trait by which they .may be identified, if the donation be a charity within the statute, and is therefore valid, it is, as a matter of course, as good and available as it would have been at common law, had it been to a competent person, in trust for another similar person, identified in the will by his proper name; and consequently whoever may hold the legal title— if it did not pass by the will — will hold it in trust for the collective body to whose use it was dedicated by the testator. This seems to be an undeniable proposition; and, if it be so, what objection can there be to the jurisdiction*442 of a court of equity over it, as over any other valid and enforceable trust? Its being a charity according to the constructive operation of the statute can not be material except for the purpose of determining whether it is valid, and it -will be a statutory charity, or void, as it must be according to the common law, and the only law of the case, if it be not such a charity. If it be valid under the statute, then it will be just as available and just as judicially determinable as it would have been had it been a good trust according to the principles of the common law.
In State v. Gerard, 37 N. C. 210, certain lands were devised unto Benjamin Simon for life, and thereafter “to the poor of the county of Beaufort, on the express following conditions and no other; that is to say, that they shall never be sold, but be held as a stock belonging to the said poor, subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable, but never to be let for a longer term of time than seven years.” The devise was held not to be to the wardens or trustees, but to the poor of the county to be made beneficent under the care of the wardens, that, as the poor had no capacity to take title to it, it descended to the heirs for them, and the court held that, the purpose being h definite charity, the chancery court would establish the charity and enter the necessary decrees for its execution, upon the principles of English jurisprudence taken from the civil law that charitable dispositions were not “permitted to fail, because of want of trustees, and, in analogy to the rule in equity in other cases, the person on whom the legal estate devolved was declared in equity a trustee pro hac vice.”
In Heuser v. Harris, 42 Ill. 435, one-half of the testator’s estate was left “to the school district in which the farm lays and shall be under control of one person elected by the people of the district, and he shall be elected for four years at one time and be required to give security for the faithful trust put in his hands, and no one .shall
In Howard v. American Peace Society, 49 Me. 288, the clause construed was a bequest “unto the suffering poor of the town of Auburn one-half of the remainder of my personal estate,” and the court construed the clause as creating a trust by implication and held, that the court had authority to name a trustee, and concluded as to the beneficiaries that: “It is very manifest that some designation of individuals must be made. If this is not to be done by the executor, it must be by a person appointed a trustee, to execute the trust. In looking at the whole will, and to the evidence in the ease, it can not be doubted that the testator had confidence in the ability, judgment and discretion of his executor. If it should be found that it would be proper, in the opinion of the executor, for the reasons
In Urmey’s Executor v. Wooden, 1 Ohio St. 160 (59 Am. Dec. 615) the remainder was given “to the poor and needy, fatherless, etc., of Jefferson and Madison townships,” and the bequest was sustained apparently on the theory that a trust was to be implied from the language employed in connection with the statute of charitable uses. See, also, County of Lawrence v. Leonard, 83 Pa. 206; Sears v. Chapman, 158 Mass. 400 (33 N. E. 604, 35 Am. St. Rep. 502.) A bequest to the poor inhabitants of St. Leonards was sustained as an equitable trust by the Master of the Rolls in Attorney General v. Clark, 1 Amb. 422.
The statute of charitable uses known as St. 43 Elizabeth, though an amendment to the common law of England when enacted, is, in so far as consistent with our institutions, a part of the common law of this State. Coning v. Emery, 16 Pick. (Mass.) 107; Doyle v. Andis, 127 Iowa, 36. And though but for it there might be doubt as to this bequest creating a trust, these decisions seem to have put a construction thereon in harmony with what was said- in Moore’s Heirs v. Moore’s Devisees, supra, i. e., that, when the object designated by the donor of the charity is the poor of a given county, parish, or other definite locality, “the chancellor, sitting as a judge in equity, will interpose on the ground of trust.” A reading of that famous act may leave some doubt as to this being within its language, but, as seen, such has been the construction given it in
The district court erred in declaring the bequest invalid, and its judgment is reversed.