55 S.E.2d 367 | Ga. | 1949
1. A will devising property in trust for "religious, educational, charitable, and humanitarian" purposes creates an estate exclusively for charity, which a court of equity will enforce.
2. Where a gift to charity unconditionally vests for that purpose within the period permitted by the rule against perpetuities, it is not void as violating the rule. This is true for the reason that the law against perpetuities does not apply to charities.
3. Under the terms of the will presented for construction, the vesting of the charitable trust created thereby was not contingent upon a condition precedent.
"All the rest and residue of my estate, of whatever it may consist and wheresoever located, I give, bequeath and devise unto my executors hereinafter named, and their successors in trust, to be held, managed and applied by them upon the conditions, uses and trusts hereinafter set out, as follows:
"(a) The Bank of Dawson is hereby designated as the depository of my said executors for as long as in their judgment they deem such provision a wise one.
"(b) My executors are authorized, privately and without any order of court, to invest any money which I may leave in safe income-bearing securities. They may likewise sell or exchange any stocks, bonds or other securities which I may leave for reinvestment. They may make loans, taking good and ample security. They shall, of course, pay such taxes as my estate may owe from time to time and such expense as may be incident to the care and management thereof.
"(c) I direct that for so long as my only brother, Otis H. Dukes, of Valdosta, Georgia, shall live, my executors pay to him the sum of $100 per month.
"(d) Upon his death, if his wife, Mildred B. Dukes, shall survive him, I direct that my executors pay to her the sum of $500.
"(e) The sums aforesaid shall be paid out of income if it is sufficient for the purpose. If not sufficient, then such part as may be necessary shall be paid out of the corpus of the estate.
"(f) Upon the death of my said brother, if he should survive me, my executors shall dispose of the remaining assets of my estate in the following manner: I desire it to be devoted to religious, charitable, educational and humanitarian purposes in Terrell and Coweta Counties, Georgia, in substantially equal proportions. I have not named an executor in Coweta County, but it is my wish and request that my executors select and name some good and substantial man or men in that county from among friends or relatives who knew me, to act in an advisory capacity in effecting my wishes in the final disposition of the remainder of my estate. I suggest to my executors that any cause or charity *837 which might or would commend itself to their judgment and sympathy would, I am sure, make the same appeal to me. I would not exclude from their gratuity as my executors, sick and infirm people or a child who might need medical aid or an operation. I should like to think that the small amount which I may leave may ease some pain or make better some impaired or deficient faculty of some child or man or woman and thus add somewhat to brighten the lives of a few worthy people. I do not mean altogether to exclude gifts or aid to institutions or organizations. It is my endeavor to make plain the fact that I wish my executors to be free and unhampered in choosing the objects of these benefits.
"(g) I direct that when all of the assets of my estate have been disposed of in the manner and for the purposes aforesaid, that my executors apply for and obtain their discharge."
Otis H. Dukes Jr., Joseph W. Dukes, and John K. Dukes, as the sole and only heirs at law of the deceased, notified the executors that they would contend that the testator died intestate in so far as the residue of his estate was concerned, and that no disbursements should be made by them under item 4 (f) of the will. The executors then filed a petition for construction and direction as to that part of the will thus questioned. Otis H. Dukes Jr. and the other heirs at law of the deceased responded to the petition and alleged that subparagraph (f) of item 4 of the testator's will is invalid and void, and consequently an intestacy as to the residue of the estate resulted, for these reasons: (1) it did not create a valid charitable trust for equitable jurisdiction; (2) the trust sought to be established contravenes the rule against perpetuities; and (3) the trust which the testator sought to establish was conditioned upon his brother, Otis H. Dukes Sr., surviving him, and since the latter died prior to the death of the testator, any attempt to establish a trust failed. The case was submitted upon the pleadings, and the trial judge held that the testator died intestate as to the residue of his estate, and directed the executors to pay it to the respondents as the only heirs at law of the deceased. The executors excepted and by direct bill of exceptions brought the case to this court for review.
1. We deal first with the character of the trust which the deceased sought to create by the terms of his will. Unless it is an exclusively charitable one, it cannot be enforced in a court of equity, and all other questions presented by the record will become moot. "The following subjects are proper matters of charity for the jurisdiction of equity: 1. Relief of aged, impotent, diseased or poor people. 2. Every educational purpose. 3. Religious instruction or worship. 4. Construction or repair of public works, or highways, or other public conveniences. 5. Promotion of any craft or persons engaging therein. 6. Redemption or relief of prisoners or captives. 7. Improvement or repair of cemeteries or tombstones. 8. Other similar subjects, having for their object the relief of human suffering or the promotion of human civilization." Code, § 108-203. "A charity once inaugurated is always subject to the supervision and direction of a court of equity, to render effectual its purpose and object." § 108-204. In the present case the testator gave the residue of his estate in trust to his executors to be used for "religious, charitable, educational and humanitarian purposes in Terrell and Coweta Counties, Georgia, in substantially equal proportions." While he indicated in no uncertain terms his preferred object of charity, namely, to "ease some pain or make better some impaired or deficient faculty of some child or man or woman and thus add somewhat to brighten the lives of a few worthy people," nevertheless, he gave his executors "free and unhampered" authority to choose for him between the enumerated objects he desired to help by his generosity. Concededly, the testator had a right to create a trust which a court of equity will enforce for the benefit of charity, and gifts for religious and educational purposes are, of course, charitable. The case therefore turns upon the meaning and the construction which must be placed upon the word "humanitarian" as it is used in the testator's will. The defendants in error, who were the respondents in the trial court, contend that the testator by the use of the word humanitarian undertook and intended to create a trust for both charitable and non-charitable purposes, and admittedly if they are correct in that, then the whole gift fails as a charity for uncertainty and equity has no jurisdiction *839
to enforce it. 11 C. J. 330, § 45; 14 C. J. S. 456, § 22;Newson v. Starke,
2. Another contention made in the instant case is that the disposition which the testator made of the residue of his estate is void because it would create a perpetuity within the meaning of the Code, § 85-707. There is no merit in this. Under the terms of the testator's will, the charitable estate created thereby vested either immediately upon his death or upon the death of his brother if the latter should survive him, and it is a well-settled *841
principle of law in this State that, where a gift to charity unconditionally vests for that purpose within the period permitted by the rule against perpetuities, it is not void as violating the rule. And this is true for the reason that the law against perpetuities does not apply to charities. Jones v.
Habersham,
3. The remaining contention is that no trust estate was created by the testator, because its vesting was made contingent upon a condition precedent which failed, namely, that the testator's brother, Otis H. Dukes Sr., should survive him. There is likewise no merit in this. Under the provisions of the will, the brother, if he survived the testator, was to receive during the remainder of his life a stated monthly amount from the estate, and upon his death the residue was to be used by the executors for religious, educational, charitable, and humanitarian purposes. There is nothing in the will which would authorize a finding that the testator's intention to create a trust was in any way contingent upon the time of his brother's death, whether before or after his death. To hold otherwise would be the equivalent of saying that it was the testator's intention to die intestate as to the residue of his estate in the event he should survive his brother, and in our opinion the will, when considered as a whole, should not be given such a construction.
For the reasons stated in the three divisions of this opinion, the court erred in rendering the judgment complained of.
Judgment reversed. All the Justices concur.