199 So. 287 | Miss. | 1940
Lead Opinion
This appeal involves the construction of Sections 269 and 270 of the Constitution of 1890, as applied to certain devises of real estate and money, respectively, made to the Old Ladies' Home in Jackson, Mississippi. From a decree which held that both of such devises were void, the appeal here was taken by the Old Ladies' Home Association, a corporation under the laws of this State, duly chartered pursuant to the provisions of Chapter 25, Section 832 et seq., Code of 1892, for the purpose of establishing and maintaining a home for aged and destitute women in the State of Mississippi.
The cause originated in the court below on petition of the executor of the last will and testament of Mrs. Quinnie Varnado Grubbs, who died at Osyka, Mississippi, on August 8, 1938, wherein a construction of the will was sought to determine whether it violated the sections of the Constitution here involved in that it provided (1) that "the house and lot now owned by me in the Town of Osyka shall be given to the Old Ladies' Home in Jackson, Mississippi;" and (2) that "any monies remaining after all expenses shall have been met shall likewise go to the Old Ladies' Home in Jackson, Mississippi." The expenses referred to related to minor items mentioned in the will and the expenses of the administration of the estate. A pleading was then filed by the appellant, the *257 Old Ladies' Home Association, setting forth the reasons for its contention that these devises should be upheld. Thereupon, a demurrer was sustained to this pleading, the effect of which action was to hold that the gift of the real estate violated Section 269 and that the gift of the money was in violation of Section 270 of the Constitution of 1890.
Section 269 of the Constitution provides, among other things, that: "Every devise or bequest of lands, . . . contained in any last will and testament, . . . in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, . . ." The appellant, the Old Ladies' Home Association, is a body politic within the meaning of this section of the Constitution, and the land in question was given to be appropriated to a charitable use or purpose. Therefore, the remaining question to be decided is whether the devise of the land was in trust, either express or implied.
In the case of Blackbourn v. Tucker et al.,
The decision in the Blackbourn case is therefore controlling here to uphold the gift of the testatrix in the case at bar as to the gift of any money to the Old Ladies' Home which should remain after the payment of the expenses referred to, on the ground that the said Home is not a religious or ecclesiastical corporation, society or association; and it is also controlling to defeat the devise of the land on the ground that Section 269 prohibits such a devise to any body politic, in trust, either express or implied, for the purpose of being given or appropriated for charitable uses or purposes, for the reason that while the testatrix did not expressly provide in her will that the land, or the proceeds from any disposition thereof, should be devoted to the promotion of the comfort and welfare of the inmates of the Old Ladies' Home, such an intention and purpose is clearly to be implied. It is stated in Rest., Trusts, Paragraph 24, Subsection 2, that "No particular form of words or conduct is necessary for the manifestation of intention to create a trust." Also see Greely v. Houston,
Chapter 25, Code of Mississippi in 1892, under which the Old Ladies' Home Association was first organized *259 and chartered as the Rest Haven Home Association, the name of which was later changed to the Old Ladies' Home Association by amendment of the charter, authorized the corporation to hold such real estate as might be necessary and proper for its purposes, not exceeding $250,000 in value. The house and lot here involved is located more than one hundred miles from the Old Ladies' Home in Jackson, Mississippi, and the only reasonable conclusion is that it was within the contemplation of the testatrix that the property would have to be sold or leased at a rental in order for the inmates of the home to receive any benefit from the gift, and we think that it necessarily follows that this corporation, which was chartered for purely benevolent purposes, as recited in its charter of incorporation, could not receive the property within the intent and purpose of the will other than in trust, and under an implied obligation to appropriate it to the charitable purpose of promoting the comfort and welfare of the inmates of the Old Ladies' Home, and for that purpose alone. In other words, we are of the opinion that while no trust is expressly created by the terms of the will in the instant case, as was done by the testator in the Blackbourn case when he provided that his real estate should be applied by the Senatobia Educational Association "in maintaining and keeping in a prosperous condition that institution of learning owned by said association, and known as the `Blackbourn College for Girls,' in Senatobia, Mississippi . . .," nevertheless, a similar intention on the part of the testatrix is implied in the case at bar, that is to say, that the property here involved should be applied in maintaining the Old Ladies' Home for the benefit of those intended to receive this bounty, "having always in view the best interest of said institution" as was expressly stated by Blackbourn in his will. If this construction of the will here involved is correct, then it follows from the decision in the Blackbourn case that the devise of the land clearly violates Section 269 of the Constitution of 1890, which was not *260 repealed by constitutional amendment until after the death of the testatrix herein on August 8, 1938. It may be a rather anomalous situation that at the time of the execution of this will the State was contributing by legislative appropriation the sum of $2,500 per year for the support of the Old Ladies' Home at Jackson, while one of its citizens was prohibited by the Constitution from making a gift of land to be devoted to the same purpose. Nevertheless, the Constitution then prohibited such a devise of land by will, and it is the duty of the court to enforce its mandate.
The decision of the court is therefore affirmed as to the invalidity of the devise of the real estate mentioned in the will, and is reversed and remanded wherein it held invalid the bequest of the money.
Affirmed in part, reversed in part, and remanded.
Dissenting Opinion
The provisions are "That the house and lot now owned by me in the town of Osyka, shall be given to the Old Ladies' Home in Jackson, Mississippi, . . ." And, "Any moneys remaining after all expenses shall have been met shall likewise go to the Old Ladies' Home in Jackson, Mississippi."
In this opinion reference to devise of lands will include the bequest of money provision.
Appellant is a Mississippi corporation. The charter was granted in September, 1902, under chapter 25, Code of 1892, section 838 of which empowers all corporations chartered under that chapter to take title to, and hold, real property "for its purposes," not exceeding in value $250,000. The object was to establish and maintain a home for aged and destitute women in Mississippi — a public charity. The charge for membership is not less than $1.00, to be fixed by the incorporators or directors. The management is vested in a board of not less than five directors, to be selected annually by the members.
It will be seen that the will vests directly in the corporation title to the real property. There are no restrictions or conditions of any kind in the will attached to the devise. The corporation is a legal entity, empowered by its charter to take title. In short, the title is in the corporation absolutely. It can keep or sell the property as it desires. Section 269 of the Constitution of Mississippi does not prohibit a devise of land direct to charity. It does prohibit the creation of a trust in lands for charity. This is the vital and decisive point in this case. This section does prohibit a devise, either directly or in trust, for religious purposes. *266
There are vital reasons for the distinction. Alienation of lands in mortmain — "dead hands" — for religious purposes, thereby depriving the crown and the intermediate lords of the right to military and other services from the tenant under the feudal system; the accumulation of lands of the kingdom in ecclesiastical organizations; execution of deeds as the result of emotion produced by priests and monks upon grantors in their last illnesses, were reasons given, at different periods, for the enactment of statutes of mortmain, and in later years the effect of depriving heirs of their rights of inheritance has been emphasized. None of these reasons apply with force to donations direct to charity, except the supposed right of heirs. This right has been over-emphasized. The same effect results in this regard where the testator by his will devises his land to individuals who would not otherwise inherit it. The right to make a will necessarily confers the right to divert the lands from the legal channel of inheritance. Often there are no direct or close heirs at law, or, if so, they are not worthy to inherit, or there may be no heirs at all. But whatever the reason for the distinction, the fact remains that under section 269 of the Mississippi Constitution a devise direct to charity is not prohibited. The case at bar proceeds throughout on the theory that there is a trust of the lands — a legal trust growing out of the mere fact of the title being in the corporation for the benefit of its members. That is not the meaning of the section. The trust covered by that section is a trust created by the testator, and not the kind of trust which corporations, public or private, bear to their stockholders or members.
I will now review the Mississippi cases nearest in point on the question under consideration:
The opinion in chief in the case at bar relies upon Blackbourn v. Tucker,
This is a trust, pure and simple, created by the testator. The trustee is named, the duties and powers of the trustees are set out, and the beneficiary is specified; and the trustee is a different person from the beneficiary. The title to the property is placed in one person, and the beneficial use is in another, which is the very essence of a trust. It will be noticed that even in this case Judge Whitfield was doubtful about the correctness of the decision.
In Hailey v. McLaurin's Estate, 1917,
In Maas v. Sisters of Mercy of Vicksburg,
Also, the Court dealt with this case as though it were *268 a religious organization, saying: "The Sisters of Mercy of the Catholic Church is an organization through which the Catholic Church carries on a large part of its religious, charitable, and educational work. It is a monastic sisterhood, established in Ireland by Catherine McAuley in 1827. Notwithstanding its origin is comparatively recent, the society has extended its charitable, religious, and educational work over a large part of the earth."
Greely v. Houston,
In the case of Anderson v. Gift,
In the National Bank of Greece v. Savarika,
The case at bar narrows itself to the one point — *269 whether the mere placing of the title to the land in the corporation is a trust for the benefit of its members, within the meaning of section 269 of the Constitution. That question has not been decided by this court, but it has been decided in other jurisdictions.
In 2 Page on Wills (2 Ed.), at page 1717, it is said, "A gift to a corporation or organization to enable it to carry out some or all of the purposes for which it was formed does not create a trust."
In Williams v. Williams,
14 C.J.S., Charities, Sec. 45, p. 498, uses this language: "Generally speaking, a provision for a direct gift to charity or to a charitable organization is not a trust in the eyes of the law; it is a charitable donation."
In Doan v. Vestry,
14 C.J.S., Charities, Sec. 45, page 499, contains this statement: "Where a will gives the residuary estate to executors to be transferred to a corporation to be formed for charitable purposes, nothing passes directly to the corporation, but it takes only by conveyance from the executors; but, after so taking, it does not hold the property in trust in the true sense of the term, but as its own, to be devoted to the purpose for which it was created."
In re Hart's Will,
The case of Hobbs v. Board of Education of Northern Baptist Convention, 1934,
In Preston v. Howk,
In the case of Danforth v. City of Oshkosh,
In the case of Sherman v. Richmond Hose Co.,
In the case of Whitmore v. Church of the Holy Cross,
It would unduly lengthen this opinion to quote from other cases. See Corporation of Chamber of Commerce of New York v. Bennett,
It will be seen from the foregoing cases that a devise is not rendered the less absolute, or converted into a trust, because the provision specifies that the donation shall be employed for one or more of the purposes for which the charitable organization benefiting was formed.
It is common knowledge that gifts and donations to public charities do not violate the rule against perpetuities. 10 Am. Jur. 596, section 17, and cases in footnote 18; 2 Am. L. Inst., Rest. Trusts, page 365; Sherman v. Richmond Hose Co., supra; Note Ann. Cas. 1917E, page 867.
No public policy is violated, either as to the object or result of this devise. As to the object: "At common law a trust in the nature of a public charity was looked upon with such favor that it was not permitted to fail even by reason of impossibility of carrying it out according to the conditions prescribed by the donor." Our public policy is favorable to charities. As the heart of man emerges from the savage state it begins to beat in sympathy with its fellow beings. This corporation was created by act of the Legislature, and from time to time the State of Mississippi through appropriations direct to the Old Ladies' Home, has donated to its objects, there being an appropriation to it for the current year.
As to the effect, the title is held absolutely by the corporation. There are no conditions or restrictions other than the general obligation imposed by law on all corporations for the benefit of its members, to use the property for their benefit. It can convey the property at any time.
Public policy is further shown by the recent overwhelming vote of the people fundamentally modifying sections 269 and 270 of the Constitution, by adoption of amendments thereto, permitting the devise of lands, within named limits and conditions, for religious purposes
The suggestion of error should be sustained.
Griffith, J., concurs in this opinion. *273
Addendum
It is again urged that since the devise of this real estate was direct to the Old Ladies' Home Association, a corporation chartered "to establish and maintain a *261 home for aged and destitute women in the state of Mississippi," it was not a devise in trust, either express or implied, for the purpose of being appropriated to a charitable use or purpose, as prohibited by the constitutional provision in question.
In the former opinion we undertook to analyze and apply to the fact in this case the decision of Blackbourn v. Tucker et al.,
Moreover, in our opinion the prohibition of section 269 of the Constitution, which was not repealed until after the will in question became effective, was not merely intended to prevent property from being devised so as to create a trust in a strict technical sense, but it rendered invalid any such devise to any corporation, society, denomination, association, person or body politic enumerated therein, where such devise is to be accepted under an obligation, either express or implied, to appropriate the same to a charitable use or purpose. An implied trust is defined in Black's Law Dictionary (3 Ed.), 1260, as "A trust raised or created by implication of law; a trust implied or presumed from circumstances."
In Rest. Trusts, section 1, under subsection c, it is said: "Although many of the rules applicable to private trusts are also applied to charitable trusts, other rules applicable to private trusts are not applied to charitable trusts, and there are rules applicable to charitable trusts which are not applied to private trusts. The fundamental distinction between private trusts and charitable trusts is that, in the case of a private trust, property is devoted to the use of specified persons who are designated as beneficiaries of the trust; whereas, in the case of a charitable trust, property is devoted to purposes beneficial to the community. The rules applicable to charitable trusts are stated in sections 348-403."
In Rest. Trusts, section 397, subsection f, it is stated that, "If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee, but also does not use language indicating that the property is to be held upon trust, nevertheless a charitable trust will be created." *263
Again, in Rest. Trusts, section 2, subsection i, it is said, "A trust can be created, or having been created can continue, although for the time being there is no trustee. Thus, if the owner of property devises or bequeaths it in trust, a trust may arise although no trustee is named in the will or the person named as trustee is dead or otherwise incapable of taking title to the property."
If the mere fact that the devise of the real estate in the present case was direct to the corporation, instead of to it for the express or implied benefit of the home, would remove it from the contemplation of section 269 of the Constitution, then it would necessarily follow that the denominational colleges in this State have been under an erroneous impression for many years as to their right to accept devises of real estate in their corporate capacities, under the terms of a will; and that there was, in reality, no need for the recent repeal of this constitutional provision. These institutions, and our religious and ecclesiastical denominations could all have acquired such real estate as may have been devised to them, if they had only adopted the expedient of letting the devise be made directly to the college or to a religious or ecclesiastical body, as the case may be, as a corporate entity, without naming the true capacity in which it may have taken the title — in trust, to be used for the purpose intended.
In Blackbourn v. Tucker, supra, it is stated, "Manifestly, the purpose of the constitution is to prevent one who will not be charitable at his own expense from being so at the expense of his heirs at law." If this be the philosophy of the provision against alienation of lands in mortmain, then the same reason would apply for holding void a devise by will direct to a body politic, when it is apparent that the testator intended that the devisee should appropriate it to charitable purposes, as would exist if the devise were made to a named devisee for the express benefit of another. On the other hand, if it be said that the purpose of the provision was merely to *264 prevent the accumulation of land in the corporations, societies, denominations, associations or persons and bodies politic, enumerated in the Constitution, for the purpose of being appropriated to charitable uses and purposes, then this purpose would be defeated by upholding a devise made direct to either for that implied purpose, although it would be admittedly void if made to either of them for the express purpose of being appropriated to some particular charitable use or purpose.
As to whether the prevention of the accumulation of lands for the purposes mentioned was the dominant idea, it is significant to note that section 269 of the Constitution likewise, and with equal emphasis, prohibits a devise or bequest of any money directed in a will to be raised by the sale of land. Therefore, we come back to the proposition that the framers of the Constitution undertook to prevent the disposition of land by will, either directing its sale or by vesting the title thereof, so as to permit its appropriation, either directly or indirectly, for a charitable use or purpose.
While many cases are cited where devises of land to one for the benefit of another have been held invalid, and it is argued that such was the basis of the decision, no case decided by this court is called to our attention which has upheld a devise of land under the circumstances mentioned in the Constitution, on the ground that it was made direct to a named devisee, instead of to it for the benefit of another.
In Greely v. Houston,
Suggestion of error overruled. *265
