61 Fla. 819 | Fla. | 1911
Lead Opinion
(after stating the facts) — This case is not without difficulty, and depends upon the proper solution
First let us make a brief reference to the will itself. Ten thousand dollars are given for the construction and maintenance of a monument over the graves of the teslator and his parents, one thousand dollars to Mrs. Archer, and three thousand dollars to his maiden aunt, who we learn from the allegations of the bill was his only very near relative. The rest of the estate, he desired, to be held in trust for the benefit of “The West Florida Seminary, the institution located at Tallahassee with which Col. Rivers is connected.” Authority is given his executor, or should he not qualify, to the “officers controlling the institution” to change the investment of funds in their discretion; the interest only to be used. We may further add that the income from the estate had been so used for nearly twenty years by his executor under the will prior to 1905.
The naked title has since Judge Westcott’s death, been in his heirs, subject to this burden and the right of the trustee to change the investment, which right carried with it the power to make the necessary legal transfers, and we are not facing a hiatus in the legal title.
While the various State institutions of higher learning were by that act abolished, State ex rel. Moodie v. Bryan,
Section 2 of that act reads: “That all and singular all the lands, tenements and hereditaments, estate and property, real, personal and mixed, including all bonds, funds, moneys and investments, and the rents, issues and profits thereof, had, held, or possessed by the said institutions named in Section 1 of this Act, or any of them, or to which said institutions or any of them might or could have, claim, or be in any way or manner entitled to either in esse or in futuro and from any source whatsoever, be and the same are hereby declared forfeit and to revert to the State of Florida, and upon the passage and approval of this act, to vest absolutely in the State Board of Education in fee simple absolute, in trust, nevertheless, for the uses and purposes hereafter provided for herein.”
The Act became a law on June 5, 1905, at the end of the school year and provision was made whereby the two Boards were to act promptly in selecting the locations for the two new institutions, and one of them, designated as the Florida Female College, but now officially called the Florida State College for Women, was promptly located at Tallahassee, at the site formerly occupied by the Florida State College, so that there has been no break in the actual workings of the school as an institution for higher-education, opening its regular session in the succeeding autumn. Equity looks at the substance, rather than the strict letter and we fail to find such hiatus or break in the continuity of the institution as to cause us to declare a
Had the heirs interposed between June 5, 1905, and the actual location of the proposed new college at Tallahassee, there are respectable authorities holding that a court of equity would stay its hand a reasonable time, to await the outcome of the pending action; it is certainly too late after that action has been promptly taken to come in and in the face of the well known public facts known by all to exist, to suggest that the institution does not continue to exist, though under a changed name and other changes presently to be considered.
Up to this point, we discover nothing other than a change in trusteeship, a change in name, and a short interval of time during which the object of the bounty might have ceased to exist, had certain Boards so willed. That interval had safely passed, and upon the filing of the bill of complaint we find at the site of the school, erroneously called the “West Florida Seminary,” by Judge Westcott in his will, a flourishing institution for higher education, most liberally supported by the State, called the “Florida State College for Women,” which has been in continuous operation since 1905, and upon which the State has expended several hundred thousand dollars.
There have been many changes in the institution in the quarter century since Judge Westcott made his will. We may add parenthetically that all institutions, which have survived this rapidly progressive age, have of necessity made many changes, in order to survive. Mere change •of name, unless some peculiar affection for the name is indicated by the donor, means nothing, while location is important. Institutions controlled by the State are of necessity subject to change in State policy, and of this, those endowing such institutions must be held to have
The main change is in the fact that at the time Judge Westcott made his will, he died soon after, the Seminary was co-educational, while now it is confined to girls who have passed certain grades of the common schools; the other changes are incidental to this change and may pass unnoticed.
While the bill alleges that the testator was himself an alumnus of this Seminary, the will is silent as to that fact and the will does not propose an aid to the boys of Leon county, but to “students” of that county. . Co-education among college students was then, perhaps more than now in its experimental state, though common enough in the grammar schools, and surely an alumnus with pride, as well as love for his alma mater, must have looked forward to the time when it would put off its swaddling clothes and become a seminary or college, a State institution in fact as well as in name, and he is held to the foresight that when such time came, the Legislature might change its mind and separate the sexes. And so it may be, he used the happy word “student” as embracing male and female, both or either.
Under the letter of the will, then the bounty can be applied to the “Institution located at Tallahassee,” and “at least one-half of this interest expended for the benefits of students of Leon county under the direction of the managing officers of the institution.”
Perhaps the above reasoning would savor too much of special pleading and be unsupportable without the assistance of the doctrine of cy press as now almost universally recognized by the courts of this country; not as, at one time, enforced in England, as a special prerogative of the
It is apparent that the testator desired his estate to go not to his remote heirs, he had none nearer than the maiden aunt, whom he specifically remembered, but to this public educational institute at his home town, and for assistance through that institute to the students from his home county of Leon. The main objects of his bounty can be still made effective, and while it may be doubted, whether the courts would be warranted in the construction, if the object were private and not eleemosynary, we think we are well within the decided cases, and are doing no violence to the intention of the testator, in holding that the Florida State College for Women is entitled to receive the income from the residuary estate. See Schouler, Petitioner, 134 Mass. 426; Festorazzi v. St. Joseph’s Catholic Church of Mobile, 104 Ala. 327, 18 South. Rep. 394, 25 L. R. A. 360; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. Rep. 527; Moran v. Moran, 104 Iowa 216, 73 N. W. Rep. 617; Harrington v. Pier, 105 Wis. 485, 82 N. W. Rep. 345.
The demurrer to the bill should have been sustained and the orders appealed from are, therefore, reversed.
Dissenting Opinion
dissenting.
The bequest in this case is as follows: “The rest of my estate, I wish held in trust for the benefit of the West Florida Seminary, the institution located at Tallahassee,
The court holds that the legal title to the property is in the testator’s heirs subject to the bequest and to the right to change the investments; and that The Florida State College for Women now established at the place where The West Florida Seminary was located before it was abolished and discontinued, is the beneficiary intended by the testator in making the bequest.
Charitable bequests are favored, and if practicable they should be so applied as to effectuate the testator’s purpose whether the exact limitations of the bequests are expressed in definite words or not. But the heirs of the testator can lawfully be deprived of the beneficial use of property bequeathed to charity, only when the designated beneficiaries can legally and in fact receive the bequest as intended by the testator. Where there is a bequest to a specific charity, and no general charitable purpose appears, the application of cy pres or other rules of construction that operate to give the bequest to a purpose or to beneficiaries not clearly intended by the testator, encroaches upon the rights of the testator’s heirs to inherit the property when the particularly designated beneficiaries cannot receive the bequest. While a charitable bequest should be so construed as to give effect to the ascertained intent of the testator in making the bequest, yet
The will discloses no general charitable purpose — no intent to aid public education generally at Tallahassee or elsewhere^and the bequest was specifically and expressly made “for the benefit of The West Florida Seminary,” a State institution of learning and its students. It is obvious that the testator contemplated a continuance of the educational facilities as then afforded to all the classes of persons such as were then students at the particularly designated institution, and that he made the bequest of the annual income from the property to aid that continuance. While the testator knew that the character of the institution could b'e changed by law, he also knew that if
The fact that the bequest was for a number of years used for the benefit of the institution as designated by the testator, does not prevent the beneficial use of,the property from merging into the legal title of the heirs, when because of changed circumstances the beneficiaries intended by the testator cannot now receive the bequest. The will shows no intent to exclude the testator’s heirs except “for the benefit of The West Florida Seminary.” And such an intent if shown could not avail where the’ property is not completely disposed of to others. See McDougald v. Gilchrist, 20 Fla. 573, text 577. The testator allowed the legal title to the property to descend to his heirs subject only to the specific bequest, so there could have been no intent to exclude the heirs • except for the purposes of the particularly designated trust impressed upon the property in making the specific bequest.
“The institution located at Tallahassee” referred to as the beneficiary of the bequest was by the terms of the will specifically designated and declared to be “The West Florida Seminary,” an institution then existing under the law, and since then referred to by that name in statutes of the State making appropriations for its support and
Where the bequest is made in plain terms for a specific beneficiary, and there has been a change of circumstances from those existing at the date of the execution of the will and the death of the testator, no other beneficiary can be substituted upon what ma3r be presumed would have been the wish of the testator under such changed circumstances. “Upon the happening of a state of facts not contemplated and provided for by the testator, courts are not authorized to imagine what would have been the desire of the testator under such circumstances and to enforce such presumed desire as a part of the will.” Jenkins v. Merritt, 17 Fla. 304.
A trust arising under a will is an express trust to be controlled and interpreted under the terms of the will. Gale v. Harby, 20 Fla. 171.
The bequest is of the annual “interest upon the principal” “for the benefit pi The West Florida Seminary, the institution located at Tallahassee,” “at least one-half of this interest” is directed to be “expended for the benefit of students of Leon County under the direction of the managing officers of the institution.” These definite express limitations taken with the other provisions clearly indicate an intention that the bequest shall be used only to aid “The West Florida Seminary” in continuing the instruction it afforded when the bequest was made; and it is conceded that such instruction was by law and in fact then given to both male and female students. When the terms of the bequest are considered in connection with the admissions of the demurrer that the testator was educated at “The West Florida Seminary, the institution located at Tallahassee,” and that the testator “having such connection and association therewith did make said
“The West Florida Seminary” has been abolished in name and in law, “and has ceased to operate and has been wholly discontinued and so remains,” the educational facilities now afforded by a different institution at the same place are appropriate only to girl students in the higher grades, and are materially different in scope and purpose from that afforded by the Seminary as shown by the statutes; and the classes of persons now received as students there under the statute are only females who have attained the tenth grade. Under these changed circumstances the purpose of the testator cannot now be effectuated as intended, the beneficiaries intended by the testator cannot now receive the bequest as designed, and the courts cannot substitute beneficiaries that the testator may or may not have favored had he contemplated the changed circumstances. This being so it seems that the intention of the testator as shown by the will no longer operates to exclude the heirs from the beneficial use of the property, the legal title to which they have had since the testator’s death.