9 W. Va. 124 | W. Va. | 1876
• In December, 1871, the plaintiffs by their next friend, Robert B. "Woods, brought a suit in chancery against Daniel C. List and James P. Rogers, executors and trustees, under the will of Martha Knox, deceased, and the Mount Wood Cemetery Company. The bill was filed in January, 1-872, at rules. ’ In the bill nothing is said
In the original and amended bill, it is alleged, by-the plaintiffs, that in September, 1871, Mrs. Martha Knox, a widow, and at that time, and for many years previously, residing in the city of Wheeling, county of Ohio and State of West Virginia, departed this lite, leaving the plaintiffs who are her grand children, her only heirs at law; that plaintiffs a're the only children of Franklifi W. Knox, who was the only child of skid Martha Knox and that their said father died in the lifetime of his mother; that said Martha Knox being possessed of a considerable estate, real and personal, made her last will and testament, bearing date on the fifteenth day of April? 1870, which was admitted to record in the Recorder’s office of Ohio county, West Virginia, oil the fourteenth day of October, 1871. Plaintiffs aver that after sundry bequests and provisions contained in the preceding clauses, the following bequest and devise is made in the sixth clause of said will, to wit:
“All the rest and residue of my estate, real and personal, including the homestead, in which I have so long lived, and all my real estate in Wheeling, or elsewhere, I give and bequeath to my said trustees, Daniel C. List and James P. Rogers, in fee and in trust for the use hereinafter mentioned, and direct that the same be sold for cash or on credit, as my said trustees may judge best, and they are required to invest the remainder, after the*131 paying of aTl tbe expenses of administration, and of the estate, in some permanent manner so that the same will 'draw interest, rents or dividends — the 'be'sfc that can be done in the judgment o'f my Said trustees, and that the said investment is o remain perpetually, and the rents, profits or dividends to be appropiiáted solely for the r'e-■pairing and keeping in good order Mount Woo'd •Cemetery, near the city of Wheeling'; and if there be anything of the said income left after the keeping of said Cemetery in good repair, the remainder may be expended in beautifying the same. I enjoin specially on my said trustees that my will may be observed in this matter, so that the •fund will not be lost, as is too often the case in donations of this kind.” The plaintiffs allege and insist that the said sixth clause in said will is void, and that they, as the only heirs and distributees of the said Martha Knox, deceased, are entitled to the estate, real ánd personal, and the -rents, interest or proceeds thereof, in said clause devised and bequeathed. Plaintiffs also allege that the executors arid trustees of the said Martha Knox aforesaid, assuming the validity of said sixth clause óf said• will,- ha've sold all the real estate therein devised, as plaintiffs are informed, for the sum of $l9,(iC0; that the sale was made on the fifteenth day of December, -Í87Í, •and the purchase money bearing interest from that date; that they (plaintiffs) do not object to said sale being affirmed and perfected, but without prejudice to any interests, devises or demands of the plaintiffs under the said sixth clause either -to the real estate or to the proceeds thereof. The plaintiffs pray in their bill that they be declared entitled, as heirs at law and distributees of the said Martha Knox, to all the estate, real and personal, expressed to be devised and bequeathed in said sixth clause of said will, and that the said defendants, the executors and trustees, under the -said will, be ordered and decreed to convey, transfer and pay over all said estate •real and personal, or the - proceeds thereof, to the plaintiffs. • The -bill also prays for general relief. (The ’plain*132 tiffs filed-with their ■ Rill, an- official copy of the will-of said Martha Knox.)
The defendants List and.Rogers, executors and trustees,; &c., as-aforesaid, appeared to the cause in court, and byTeav.eof-the court, filed their demurrer.-and answer to the original, and- - amendacji -bills, to which answer the plaintiffs replied generally and -joined in the - demurrer.
The: Mount Wo'od Cemetery Association demurred to and answered said-.bills on the first day of April,.1872, and the- plaintiffs set the- demurrer down for argument and replied generally to the answer ; but- it appears, by the record, - that.-on the second day oí April, 1872, the .said'Association; by .consent of parties, withdrew its demurrer, to-said .bills.
List .and Rogers in their-.answer .say, substantially, that, the said sixth clause of .the will is not void, hut is effective and is according to law; that the testatrix had fall power to-.dispose.of.apportion of her property-.in that manner, which .was-not’ only, legal but meritorious; that she was a yery old. woman and had lived all -her life in and-near the, city of •'Wheeling, and was the daughter of the late Colonel Archibald Woods;-for-whom. Mount Wood. Cemetery was named: “.That the said father was one of the,first-settlers in this neighborhood, and was a man of notg in the country, and sh.e. was desirous of perpetuating his name, by preserving the said Cemetery and beautifying,the same for. such purpose, which .the respondents ¡submit- she, had the right.to do, and it was a public benefaction ,so to,, do ; and respondents. adopted 'the answer .of,said Association so far as the facts are therein stated.-
The Association, in .its answer, admits that the copy of the said, will exhibited with the.original bill is correct, and that the .sixth clause thereof is. correctly stated in said bill,..and that it claims to have-some rights and interests under .and by., virtue of. said- sixth clause of said will ;• and that the. plaintiffs are the only heirs-of the testatrix. .But it.denies that said sixth-clause is void, or
The deposition of John Bishop is taken and filed by defendants, and he therein deposes to the truth • of the facts stated in .the-answer -of said Association. By the second clause • of said will the testatrix devises all her “estate both real and ■ personal, to Daniel C. List and James P. Rogers, to be.held by them, and the suvivor of them, on the trusts hereinafter mentioned, and not otherwise.” And in orden that they may have the fall control of her estate, as she' says in" said clause, she nominates and appoints said List, and-Rogers the executors of the will.
On the amended bill there is this endorsement, signed by the counsel of each of the defendants -and of the plaintiffs to this effect: “Agreed, that this case shall be heard as if proper summons had been, in due time, issued and served on the amended, as well as original bill, against all the-.defendants.- The demurrer-of List and Rogers is to be regarded ■ as a demurrer to each of said, bills.”
■ The cause was heard by. the said circuit court on the twenty-third day of January* 1875, on the-original and amended bills, and the-exhibits filed therewith, the summons and returns, the agreement of the- parties endorsed on the amended bill, the demurrer of the defendants and joinder therein by the plaintiffs, the answers and exhibits therewith filed, and the general replications of the plaintiffs to these answers respectively, the- deposition of John Bishop, and the former orders'and proceedings in the cause : And the court adjudged and declared the sixth clause of the will of Martha Knox-, mentioned in the bills and proceedings,-and the devise and bequest in said clause expressed, to be made* to be void and of no effect; and that the plaintiffs, as the heirs and distribu-
“1. Because the bill- was insufficient, and did not show any cause for the annulling the said sixth clause of the. said will, and the demurrer • thereto ought, to have been sustained.
“•2, Because th.ere is. nothing contained in the said sixth clause in any .wise contrary t.o the law of the land) or was in any manner- unlawful, as appears by the. said will and the other pleadings..
*139 “3. Because there was no judgment on the demurrer.”
No other errors of importance have been assigned or brought to the attention of this Court by, the appellants’ counsel. And no exception has been made or interposed by, the appellee’s counsel as to the decree in this cause not being such from which, an appeal is authorized. The."' counsel for appellants and appellees in their arguments before this Court, seem to admit that the decree is such as authorizes an appeal, therefrom to this Court. I have not, therefore, examined this question with the s.ame. care as I should, if the jurisdiction of this Court to entertain this appeal had been brought in question by the counsel ; but from the examination a.nd reflection I have given the subject, I think this Court has authority under the law, to entertain this appeal and to consider and- determine- • upon the correctness of the decree appealed from.
The appellees, by their counsel, claim, and argue .that ■ the said sixth clause of said will is void because it is an indefinite charity or- trust, and, ■ if no.t void, on- this account, it constitutes a perpetuity and-is therefore void at common daw. Before entering upon the discussion of any of the questions involved,.for- decision, I deem it proper to state some of the legislation of Virginia and "West Virginia, bearing, in principle, at least, upon, some of the questions before us. In 1832 the case of Gallego’s Exors. v. The Attorney General, 3 Leigh. 450, which is hereinafter referred to, was decided, and- in, and by, that case, some of the most important principles of law and equity applicable to this case were settled- and determined ; and as thus settled and. determined -they have remained and continued to be the law and rule in Virginia and West Virginia from that .time-to the present, except so far as changed by subsequent acts of the legislatures or the constitutions of the states, respectively. By an act of the Legislature of Virginia, passed Februar.y 3, 1842, (Va. Acts, 1841-2, p-. 60,) it was provided-that “when ■ any lot or part of .a lot, tract or parcel of land, has been heretofore conveyed .or devised, to one or
Mrs. Martha Knox, as we have seen, died in September, 1871, at which time her will-took effect. The said first section of chapter seventy-seven of the Code of West Virginia, does not authorize or make valid the said sixth clause of said will. And' it may-safely be: assumed-that there was no statute law in force at the making-of said will, or the death of said testatrix, or since, that authorized or made-valid, the said sixth clause of- said will. The sixth clause of said will, manifestly, is not covered by any provision in tlie said first section of chapter seventy-seven of the code of West Virginia; and 'if said sixth clause of said-will is valid, it must be so by virtue of some law independent of any statute law of this State; and I am not aware that we have any law in force in this State applicable to this'case independent of the statute law, unless it be the Constitution or the common law. It is not contended that there is any provision in the Constitution which- authorizes the- said- -sixth clause, or can be applied to it. The English statute of uses, (if- ever in force in Virginia) was repealed in-1792 by the Legisla
It only remains to inquire whether said sixth clause, of said will, is valid at common law,-and, if not, to whom .should‘the property or estate, real and personal, mentioned in said sixth clause, or the proceeds 'thereof, -go ?
Joseph Gallego1, who died in .July,- 1818, was seized and possessed of a large estate, real and personal. He resided, at his death-, in the city of Ri'chtnond, Virginia. He made a- will before his death, which 'seems to have been duly executed, and in his said will he directed his executors to layby $2,000, to be distributed clmong needy, poor and respectable widows; and, in case the Roman Catholic Chapel shall be' continued at the time of his death, to pay $1,000 -towards -its support; and, if the Román Catholic Congregation shall come to a determination to build á chapel at Richmond, to pay $3,000 towards its accomplishment; and-he devises a lot in Richmond, to four trustees in fee, upon trust to permit, all and every person belonging to the Ro'man Catholic church, as members thereof, or professing that religion, (md residing in Richmond at the time of his death, to build a church on . the lot, for the use of themselves,- and of all others of that religion] who may hereafter reside in Richmond-. Upon information filed by the Attorney General, in chancery, to enforce the charitable bequests and devise; Held, that the beqtíests and devise are uncertain as to the benefi.ciaries,-and are, therefore, void; Gallego’s Exors. v. The Attorney General, 3 Leigh 450. In that case Judge Carr, on page, 462, says, in speaking 'of the statute 43, Elizabeth: “and ás that statute-,.¡if ever in force here, was repealed in 1792,1 conclude that charitable beqtíests -stand ■ on the same footing, with .-us, as-all others,-and
In the Levy case the judge further says on page -102; “There being a sufficient declaration of the use, and a certain beneficiary ascertained, -the presence or absence of a trustee-in the-limitation -will make--no-difference-, for equity will not- allowa-gift-to -fail -for want -of'a trustee,” and oU'pagB-one hundred-and seyen/he further- say's:
In the case of Wheeler v. Smith, 9 Howard, 55, it was held by the Supreme Court of the United States, “That .the statute of 43 Elizabeth, respecting charitable uses, having been repealed in Virginia, the courts of chancery have no jurisdiction to decree charities when the objects are indefinite and uncertain. Therefore when a bequest was made to trustees for such purposes as they considered might promise'to be most beneficial to the town and trade of Alexandria, such bequest was void.” In that case Justice McLean delivered the opinion of the court, and after citing several cases bearing on the question, he says: “From the principles laid down in the above cases, it is clear that the devise under consideration cannot be sustained. A trust is vested in the executors, but the beneficiaries of the trust are uncertain, and the mode of applying the bounty is indefinite. It is
It seems the Mount Wood Cemetery Association is-a-' corporation organized in 1866, under an act of the legislature. The bequest under ■ consideration in this case is not to the Mount Wood Cemetery Association, nor -in-, trust for it, but for the' repair and embellishment of Mount Wood Cemetery, near the city of Wheeling, irrespective of the ownership. The corporation is- no -more the' cestui que'trust than is each owner of. a burial Tot. The bequest fails to designate or recognize clearly any cestui que trust. There is no' beneficiary who could compel t-he‘ trustees to administer the trust, according to the terms- or meaning of the bequest. ' The bequest recognizes no -beneficiary who can sue the-trustees in equity. There is
But it is-arguedthat'the plaintiffs- must elect; and if they claim the provisions made for their benefit in the third and fourth, clauses of the will, they must confirm the devise contained in the sixth clause. The principle of election by implication, in equity, depends o'n the circumstances that the same instrument which transfers or conveys certain property of the testators to one legatee or devisee, transfers or conveys certain other property to another legatee or devisee, and that the former beneficiary, availing himself of the instrument in one particular, must not defeat its operation in another. But if the latter devise or bequest be invalid — if the instrument in respect to it be legally inoperative and void — the former beneficiary, retaining his own property, does- not defeat the operation of the instrument. If it be a will, it does not defeat the intention of the testator legally declared. Retaining the subject of a transfer does not disappoint the instrument, if the law has already avoided and nullified the transfer.” 1, Leading Cases in Equity, ed. 1859, top page 404; Hearle v. Greenbank, 3 Atk. 715; Kearny v. Macomb; 15 N. J., ch. 195-7; Gardner v. Fell, 1 Jac. & Walk. 22; Sheddon v. Goodrich, 8 Ves. jr. 481; Wellaston v. King, Law R. 8 Eq. Cas. 165; Fowler v. Fowler, 33 Beavan 616; Thorndike v. Loring, 15 Gray 391; Battle Square Church v. Grant. 3 Gray 143.
The court in decreeing, as it did, on the bills, must be considered as having passed upon the sufficiency tíf the bills on-the demurrer. = And although the court did not “proforma, overrule the demurrer filed in the cause, the bill being sufficient and containing sufficient- matter to give a court of equity, jurisdiction, the court did not commit an error -for which its decree should be reversed.
It is also argued by the counsel for the appellee that said sixth-clause or bequest in the will of the testatrix, is void, because it constitutes a .perpetuity of the-estate devised, and is prohibited by the common law. • We have
For the reasons herein stated, the decree of the circuit court of the county of Ohio, rendered in this cause on the twenty-third day of January, 1875, must be affirmed with costs and $30 damages.
Degree Affirmed.