Mayor of Huntsville v. Smith

137 Ala. 382 | Ala. | 1902

Lead Opinion

HABALSON, J.

The 4th article of the Avill to be construed is: “4th. At the death of Mollie Greenleaf it is my will that the city of Huntsville accept said house for the use and benefit of the white public schools, or for a city hospital, as the city authorities may elect, and the household and kitchen furniture he sold for cash and the proceeds be used towards buying a library for use of said public schools.

“5th. I will that all my other personal property be sold for cash by my executors and the proceeds to be donated to the white public schools.”

The objection, that the use of the words, “the city of Huntsville,” as employed in the will, instead of the corporate name, — “the Mayor and Aldermen of the City of Huntsville,” — vitiated the gift for uncertainty, cannot be • sustained. “A misnomer or variation from the precise name of the corporation, in a grant or obligation by or to it, is not material, if the identity of the corporation is unmistakable from the face of the instrument or from the averments and proof.” — 1 Dillon on Munic. Corp. § 179; Douglass v. The Bank, 19 Ala. 659. It clearly enough appears, from the wall itself, that the city of Huntsville, as it is usually termed in common speech, was the corporation referred to, although its technical, corporate name was not employed.

But the question arises, — Did the testator so sufficiently designate the objects of her bounty, as to make them clearly ascertainable and admit of their being readily found, and if not, is not the devise and bequest on that account, void for uncertainty?

In Carter v. Balfour, 19 Ala. 815, the doctrine we are considering underwent elaborate discussion in review of many .authorities, English and American, and it was there held, that a bequest to “The Baptist 'Societies for Foreign and Domestic Missions,” and “The American and Foreign Bible Society” was valid and sufficiently specific; and if such societies could be found, which Avere organized and known by those names, at the time of the testator’s death, they would be considered the societies referred to in the will, and capable of taking the bequest, whether incorporated or not; but, that if such, societies did not exist at testator’s death, or could not be found, the bequest must be considered and disposed of as lapsed legacies', as the doctrine of cy pres, as applied to charitable uses, was not here recognized. Williams v. Pearson, 38 Ala. 299.

The charter of the city of Huntsville expressly authorizes the establishment and maintenance of free public schools and the’ erection and establishment of hospitals and infirmaries. — Acts, 1896-97, pp. 383, 397, 400. The city of Huntsville is, itself, in its public capacity the devisee and legatee of these gifts, in the sense of applying them to the public purposes expreseed by the testatrix in her will. The devise and bequest mentioned in the will stand, therefore, upon the same legal footing, as if they had been made to the city of Huntsville, generally, for these public municipal purposes. The fact that they are limited to certain public purposes, does not alter or in any wise affect their validity. That the city of Huntsville is the devisee and legatee for the purposes specified in the will, and that the schools and hospital referred to, as the ones which testatrix by her bounty sought to promote, are within the city limits, appears sufficiently certain, to uphold the devise and bequest against the contention by complainants, that -they are void for uncertainty.

The decree of the court below is reversed, and one will be here rendered dismissing the bill out of this court and the court below.

Reversed and rendered.

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Rehearing

Application for Rehearing.

In the original opinion in this case, we passed on matters considered and decreed upon by the chancellor, under items 4 and 5 of the will of the testatrix, as to the property mentioned in said items devised and bequeathed to the city of Huntsville. 'On this application our attention has been called to the necessity of a construction of said item five (5) of the will, in which the testatrix directed that all her other personal property, — besides that mentioned and specifically bequeathed in item 4 of her will, — should be sold for cash by her executors, and the proceeds donated to the said public white schools; or, in other words, we are to construe the will, as whether the testatrix intended by this item of her will, to bequeath for the use of said public schools of Huntsville, the money it was shown and admitted she had on hand at the time of her death, deposited in two hanks in Huntsville. It will he seen that the “other personal” property mentioned in said item five was directed to he “sold for- cash” by her executors, and the proceeds arising therefrom to he donated for the use specified. It is against reason that she should have intended her cash on hand to he sold for cash; and it appears clear to us, that by the words, “my other personal property,” as employed in said item five (5), testatrix did not. include tire money she had on hand in hanks, and did not intend to donate it to said public schools. The implication that she intended to include her money on hand as a part of her personal estate to be sold for cash, is too weak to he upheld. — Woolf v. Loeb, 98 Ala. 420; Pippin v. Ellison, 12 Iredell, Law, 61, s. c. 55 Am. Dec. 4-93. This money passed, subject to administration, to those entitled under the law of descent and distribution. — Code, § 1462.

The decree of this court heretofore rendered dismissing the hill will he set aside and annulled, and the cause is remanded to the lower court for further proceedings.

Reversed and remanded.