256 F. 635 | 7th Cir. | 1918
(after stating the facts as above).
From the bill it appears that there were so-called public schools in Fa Harpe; indeed, the president and members of the board of education of that city are as such made parties to the bill. It is maintained, however, that under the laws of Illinois the public schools of the state are not schools in which tuition is free, but that these schools are primarily available only to pupils within the school district, that others desiring the benefit of the schools must pay tuition.
One of the institutions upon which we in this country pride ourselves is the system of free schools. It is evident that such schools are not self-sustaining, but funds must be provided to maintain them. This is ordinarily done by public taxation. In making practical provision for public free education each school unit — usually a school district — provides buildings and facilities for the reasonably necessary requirements of the particular unit to be served, but not accommodations in one district sufficient for the world at large. Where, however, it can be done without prejudice to resident pupils, nonresident pupils may be admitted and tuition may be collected from them. Chapter 122, § 115, Rev. Stat. Ill. But these schools are not any the less public or “free” schools in any reasonable application of these terms, or schools in which the tuition must be free, because the educational facilities they afford may be extended to nonresidents and tuition required of such.
If, instead of employing the expression “a school in said city the tuition of which school must be free,” the testator had said “a free school of the city,” it would hardly be questioned that a public school of the city was within his contemplation. Under the subject of “Powers and Duties of Boards of Education” the Illinois statutes provide:
“First, to establish and support free schools for not less than six nor more than ten months in each year.” Chapter 122, § 127, Rev. Stat. Ill.
In the latter part of the ninth clause of the will, referring again to the same object of his benefaction as before referred to, the testator employed the expression “support of such free school as said council shall see fit.” Surely the testator should not be held to greater particularity of description or expression than is employed in the statutes of his state whereunder the city of his residence maintained free schools. This statute was enacted in pursuance of the constitutional provision that—
“The General Assembly shall provide a thorough and efficient system of free schools whereby all children of this state may receive a good common school education.” Section 1, art. 8, Constitution of Illinois 1870.
Neither the constitutional nor the statutory provision for free schools contemplated that each such school must be free in the sense contended for by appellant, viz. a school wherein tuition shall be free for the whole world.
“Another principle equally well established is, that if the bequest be for charity it matters not how uncertain the persons or the objects may he, or whether the persons who are to take are in esse or not, or whether the bequest can be carried into exact execution or not, or whether the legatee be a corporation capable in law of taking or not, for in all these and the like cases the court will sustain the legacy and give it effect according to its own principles; and where a literal execution becomes inexpedient or impracticable, the court will execute it as nearly as it can according to the general purposes, or as (as the technical expression is) cy pres.”
This very statement of the law has been definitely and repeatedly upheld by the Supreme Court of Illinois. Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256, 122 Am. St. Rep. 169; Crerar v. Williams, 145 Ill. 625, 34 N. E. 467, 21 L. R. A. 454; Heuser v. Harris. 42 Ill. 425.
That the law is as thus stated is not controverted, but it is contended that the devise is of specific nature, not charitable, and does not show a general charitable intent on the part of the testator, and that therefore the cy pres doctrine does not apply. The absence of limitation upon the city beyond the indication that'the school shall be free, and the broad general discretion granted it, point strongly to a general intent of the testator to devote his property to charitable purposes. But if this alone were not sufficient, in our judgment the concluding words of the codicil leave no room for doubt as to his general intent to create a charity, when he says:
“I have made the gift for the benefit of the young who are to take their place -as men and women in the world and do not wish them to lose the benefit of the gift by the neglect of others.”
In this statement of his- broad and beneficent purpose there may clearly be read an intent that the gift should not be defeated through strained construction of his phrases,, or even through the casual employment of inept words. The limitation of the benefaction to the support of a school, and that a school in which tuition .must be free, .does not so specifically define and circumscribe the devise as to indicate absence in the donor of a general charitable intent. Vidal v. Girard, 2 How. 127, 11 L. Ed. 205; Perin v. Carey, 65 U. S. 465, 16 L. Ed. 701; Ould v. Washington Hospital, 95 U. S. 303, 24 L. Ed. 450; Russell v. Allen, 107 U. S. 164, 2 Sup. Ct. 327, 27 L. Ed. 397; Sickles v. City of New Orleans, 80 Fed. 868, 26 C. C. A. 204.
It is contended that the clauses provide, not for founding or instituí-
The charge that the city has-abandoned the property and the trust is not supported by any facts stated in the bill from which such conclusion would flow. With the menace of litigation continually before it, first a contest of the will, which failed, then this suit to invalidate the trust clauses, the city has so far been in no situation to carry out the testator’s charitable intent. Whatever might be the consequences of abandonment by the city, abandonment does not appear.
The decree of’the District Court is affirmed.