8 S.E.2d 28 | Ga. | 1940
1. Where a gift to charity unconditionally vests for that purpose, either immediately or within the period permitted by the rule against perpetuities, it is not void as violating the rule.
(a) In such case, a direction by the donor for accumulation, which merely postpones application to charity and is not a condition to vesting, is a provision relating only to management, and, whether valid or invalid within itself, will not destroy the gift.
(b) The law favors the vesting of estates, and in cases of doubt, if it is reasonable to do so, will construe an instrument as creating a vested estate rather than a contingent one.
(c) Where an item of a will purports to make a devise of an equitable interest in praesenti, it is not qualified or overthrown by other provisions which do not clearly show an intention to impose a condition precedent to such vesting.
(d) Under the terms of the will presented for construction in this case, the fund devised to the trustee vested in charity upon the death of the testatrix, and the declared trust was not void as violating the rule against perpetuities.
2. The will provided that a fund devised for charity should be accumulated until it reached a stated amount, that the trustee should "be the sole *30 judge of the value of said corpus," and that its decision should be final. Held, that the grant of such authority contemplated a reasonable judgment, and did not render the trust void for uncertainty, as authorizing the trustee to postpone application to charity indefinitely.
3. The trust as declared in the will was not void for the following reasons, or any of them, as contended: (a) uncertainty as to classes of beneficiaries; (b) the purposes of the trust are not described with sufficient definiteness; (c) in view of authority conferred upon the trustee, the fund may be applied to other than charitable purposes.
4. Under the rulings made above, the petition of heirs at law seeking a decree establishing an intestacy as to a residuary estate and directing its administration according to the laws of descent and distribution was subject to general demurrer as failing to state a cause of action. The court did not err in sustaining the demurrer and dismissing the petition.
"Item 4. I give, devise, and bequeath all the property of which I may die possessed, both real and personal and wheresoever situate, to the Citizens and Southern National Bank, a national bank association having an office and place of business in the City of Macon, County of Bibb, and State of Georgia, but in trust nevertheless upon the following trusts, uses, and purposes, that is to say:
"Item 5. I expressly direct said trustee to keep and maintain perpetually my family burial lot in Forsyth, Monroe County, Georgia, in good condition, including all monumental work on said lot, directing said trustee to make such expenditures therefor as may be necessary, and to exercise care to keep said lot forever in good condition. I also direct said trustee to erect in my memory on said lot a monument in keeping with the other memorials on said lot, and with my circumstances and condition in life.
"Item 6. Said trustee is authorized and directed to collect, hold, and receive all the assets of my said estate, and to invest and reinvest the same in good income-producing securities and in accordance with the terms of this will.
"Item 7. Said trustee is expressly authorized to retain any or all of the investments which shall come to it as part of my estate, if in its discretion that is to the best interest of said estate, and is further expressly authorized to sell any or all of said securities in its discretion at public or private sale, with or without any order of court, and is further authorized to reinvest the proceeds from said sale or sales or any assets of my estate in whatever securities said trustee shall deem to the best interest of said estate, this authority extending to the purchase of or investment in first mortgages on improved real estate, stocks, bonds, debentures, or any other securities which the trustee shall deem safe and to the best interest of said estate.
"Item 8. Said trustee during the continuance of this trust is further authorized in its discretion to sell, trade, or otherwise dispose of any or all assets of my said estate, at public or private sale, with or without any order of court, as to it may seem to the best interest of said estate, and to invest and reinvest the proceeds in its discretion in whatever securities said trustee shall deem to the best *32 interest of said estate, this authority extending to the purchase of or investment in first mortgages on improved real estate, stocks, bonds, debentures, or any other securities which the trustee shall deem safe and to the best interest of said estate. Said trustee is given full discretion as to investments to be made by it for said estate, and shall only be liable for gross negligence in the making of such investments.
"Item 9. From the income of said estate said trustee shall pay all taxes due by the said estate and all expenses of administering the same; and after all taxes and expenses have been paid, said trustee shall add the net income from said estate to the corpus thereof for the purpose of building up the amount of said corpus for the purposes and in the manner hereinafter set out.
"Item 10. During the existence of this trust said trustee shall annually file with the ordinary of Bibb County a return showing the assets of said estate and the income and disbursements during the previous year, and no other or further return shall be required of said trustee.
"Item 11. Said trust is established by me for the purpose of creating the Perkins-Ponder Foundation in memory of my beloved father and mother, Alexander Lee Perkins and Mary Jane Ponder, and in perpetual memory of them. I am creating this foundation partly from funds which came to me as the estate of my dear sister, Josephine L. Perkins, and in the creation of said foundation for the purposes for which it is created I am acting in the earnest belief that my action is in entire accord with her own thoughts and wishes. It is my sincere hope that, through the conscientious efforts of the trustee herein named and with the cooperation and assistance of the board herein later constituted, said trust and said foundation will be so administered as to do the greatest possible amount of good for the beneficiaries thereunder with the amount available from said estate.
"12. Said trustee shall continue to add the net income from my estate to the principal until the net cash value of the corpus of said estate shall be equal to the sum of $100,000. The trustee shall be the sole judge as to the value of said corpus, and the decision of said trustee in this respect shall be final.
"13. When the net cash value of the corpus of my said estate in the hands of said trustee shall amount to the sum of $100,000, *33 then I name, constitute, and appoint an advisory board for the purpose of expending the portion of the net income from said estate which shall hereinafter be made available to said advisory board under the terms of this will.
"Item 14. Said advisory board shall consist of one representative of the Citizens and Southern National Bank, the then mayor or other executive head of the city government, and a third member to be selected by the first two named members. Said third member shall be a resident of Bibb County, Georgia, and serve for the remainder of his life or until his resignation or removal from the county. In the event that the first two named members can not agree upon a third, then the then judge of Bibb superior court is authorized and empowered to name the third member of said advisory board. So long as E. C. Scott, Esq., shall live and be connected with said bank, I desire that he shall represent said bank on said board, and after his death the then directors of said bank are authorized to name the representative of said bank to serve thereon. Said advisory board shall serve without compensation, and be charged with the powers and duties set out in this will.
"Item 15. The duties of said advisory board shall consist in the expenditure of that portion of the net income from the corpus of my estate which may be turned over to it by the trustee hereunder. Said advisory board is given full and complete authority in its discretion to expend all or any part of said net income for the aid and assistance of aged females in Bibb County, Georgia, and of underprivileged children in said county. The discretion and decision of the advisory board shall be final as to the objects of this charity and the means by which it shall be administered. I call upon said board to exercise Christian charity and their best judgment in determining upon specific objects and methods for carrying out my wishes. I realize that from time to time conditions change; and I wish to give to said board full and complete discretion in the premises, simply expressing my wish that the net income from my estate as turned over to the advisory board be used to do the greatest possible amount of good to aged dependent women and underprivileged children in Bibb County, Georgia. If at any time in the unanimous judgment of the trustee and the advisory board there are no underprivileged children and no aged females in Bibb County, Georgia, upon whom the benefits of said *34 foundation can properly be expended, then I authorize said advisory board with the concurrence of the trustee to use the net income in the hands of said advisory board for such other charities in Bibb County, Georgia, as in the opinion of said board would most nearly approximate my wishes. By charities as used here I mean charities as defined by the laws of Georgia.
"Item 16. When the total net cash value of the corpus of my said estate in the hands of said trustee shall amount to the sum of $100,000, and said advisory board shall have been constituted as directed herein, then I direct said trustee to turn over to said advisory board 50% of the net income of my estate to be used by said advisory board in the manner and for the uses herein set out. For all purposes of this will all enhancement in value of securities or profit arising from the sale of securities shall be considered principal, and not income. The net income as used herein shall be that net income shown by the annual return made by the trustee to the ordinary, and the amount shown as net income in said return shall be the basis used in computing the amount which will be available to the advisory board during the ensuing year. The balance of said net income I direct said trustee to add to the principal until the advisory board shall direct the trustee to pay over to it a greater portion of said net income than 50%, in which event I direct said trustee to turn over to said advisory board that portion of the net income which said advisory board may direct, provided that the trustee shall concur in said request, and with the express direction and upon the condition that at no time shall the net corpus of my estate be reduced below $100,000.
"Item 17. Said advisory board shall publish annually after its creation, in the newspaper in Bibb County in which sheriff's advertisements are published, a statement of its receipts and disbursements, so that the public generally may know of the actings and doing of said advisory board and the results accomplished by said foundation. In the absence of fraud, all unanimous decisions of the advisory board shall be final, and no one shall have any right to question the policies, expenditures or actions of said advisory board in the premises.
"Item 18. In the event that any person or persons should desire to assist in the charitable purposes for which this foundation is created, I direct said trustee to accept contributions from any such *35 person or persons, to be added to the corpus of said fund; and in the event such contribution or contributions are made, they shall become part of the fund and be administered by the trustee and by the advisory board, just as my own estate shall be administered.
"Item 19. I name, constitute, and appoint the Citizens and Southern National Bank of Macon, Georgia, the sole executor of this my last will and testament, expressly relieving it from giving any bond as such or filing any appraisal. I direct that so soon as my executor shall qualify and pay the debts of my estate, including doctors' bills and funeral expenses, said executor shall file with the ordinary of Bibb County an inventory of said estate, but thereafter no other returns or appraisal shall be required of such executor as such. Said executor is given full authority to sell any or all property of my estate, at public or private sale, with or without any order of any court, and generally administer my estate without interference by or orders from any court whatever."
In the briefs for the plaintiffs the contentions made in the petition as amended are summarized as follows: 1. The trust is void, because the estate did not vest in charity at the time of the testatrix's death. It is uncertain whether it ever vests in charity. Therefore the statute against perpetuities is violated. 2. The trust is void, because the time when any funds will be available to the alleged charity is indefinite, the trustee having the discretion indefinitely to postpone such time. 3. The trust is void, because the class of beneficiaries are described with such uncertainty that no guide is furnished for the trustee or for a court of equity. 4. The trust is void, because the purposes of the trust are described with such indefiniteness that no guide is furnished to the trustee or to a court of equity. The trust is void, because in the exercise of its discretion the trustee may apply funds within its hands to other than charitable purposes. 1. The first contention is that the various items by which the testatrix sought to create a trust for the benefit of aged women and underprivileged children of Bibb County, Georgia, are void, because they violate the rule against perpetuities. As we shall note later, the will referred to aged dependent women; but in this part of the opinion we are not concerned with the classes of *36 persons to be benefited, and will consider only the question as to remoteness of vesting, assuming that the trust is otherwise valid. The argument of counsel upon this question is based mainly upon the fact that the will provided for accumulation of the fund until it reaches the sum of $100,000, postponing use for charitable purposes in the meantime, and further provided that "the trustee shall be the sole judge as to the value of said corpus," and may determine whether any portion of the net income in excess of one half shall be administered by the advisory board during any year, even after such accumulation, but "with the express direction and upon the condition that at no time shall the net corpus . . be reduced below $100,000." Still other provisions are discussed in support of the general contention that the attempted trust is void under the law prohibiting perpetuities; and we have given consideration to the entire will, even if some parts of it may not be expressly mentioned hereinafter.
The Code, § 85-707, declares, in part: "Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and 21 years, and the usual period of gestation added thereafter." Where the vesting of a gift is not limited upon the life of any person, the term can not be longer than 21 years. 1 Perry on Trusts and Trustees (7th ed.), 634, 635, § 380; 48 C. J. 939, § 5. "It is frequently stated that charities and trusts for charitable uses are not within the scope of the rule against perpetuities, for the reason that the principles of the common law and the provisions in constitutions and laws relating to perpetuities are designed only to prevent the entailing of estates and the accumulation of individual wealth and the creation of private trusts. This is true when the gift is made in such a way that the interest vests in the charity immediately or within the time permitted for the vesting of future interests, and in such cases a public or charitable trust may be perpetual in its duration." 21 Rawle C. L. 310, § 38. "Trusts for charitable uses commencing in praesenti or within the period of the rule against perpetuities are not obnoxious to the rule, although they may continue forever and beneficial interests may arise under them at a remote time, so long as the property given in trust vests in the trustee immediately or within the period prescribed by the rule, even though the payment or application of the described uses may be postponed; and the *37 court will ordinarily favor that construction of a gift in trust for charitable uses which makes it a vested interest, not subject to any condition precedent." 48 C. J. 986, 987, § 78. Where a gift is to vest in charity upon a condition precedent which may or may not happen within the period, it is void as violating the rule. It is not sufficient that the estate may by some possibility become vested within the permissible period, or even that it will probably do so; for, if the condition fixed by the donor is such that the gift may by any possibility fail to vest in charity within the lawful time, or if there is any room for uncertainty or doubt upon the question, the gift is void ab initio. In other words, it is not enough that it may so vest, but it must do so, in order to be valid. 21 Rawle C. L. 289, § 11. The foregoing statements accord, in a general way, with the principles laid down in numerous decisions which have been cited in the briefs and which have been carefully examined. In fact, as to these general propositions, there appears to be no difference between counsel in the present case.
So the great question here is whether the trust vested in charity at the death of the testatrix, or whether the vesting
of title for that purpose was postponed until the happening of some event which may or may not happen within the period prescribed by the rule against perpetuities; and in connection with this question the intention of the testatrix in reference to accumulation is an important matter for consideration. In this State there is no statute expressly relating to accumulation or limiting the time within which an accumulation of money or property may be continued under a direction from the donor before its use or application to the trust to which it is to be ultimately devoted; although statutes upon this subject have been enacted in England and in some of the American States. 48 C. J. 990-994, §§ 81, 83. In the absence of statute, as in Georgia, a mere direction for accumulation would not render the trust void. Id. § 84. If, however, accumulation to a specific sum is made acondition precedent to the vesting in charity, the gift is wholly void, since it can not be said with absolute certainty that such an accumulation will necessarily be accomplished within the time allowed by the rule against perpetuities; and the same is true if accumulation for a specified period, with or without reference to amount, is made a condition precedent, and the period so fixed by the donor will exceed the time allowed by law. Gray on Perpetuities *38
(3d ed.), 522, 523, § 674; 48 C. J. 989, § 80. On the other hand, where the desired accumulation, whether to a particular amount or for a designated period, is not made a condition precedent, and the gift vests in charity at the donor's death, the direction for accumulation is one relating merely to management or administration, and will not affect the validity of the gift, even though such direction may, within itself, be invalid. Woodruff v. Marsh,
Item 4 of the will under consideration is as follows: "I give, devise, and bequeath all the property of which I may die possessed, both real and personal and wheresoever situate, to the Citizens and Southern National Bank, a national bank association having an office and place of business in the City of Macon, County of Bibb, and State of Georgia, but in trust nevertheless upon the following trusts, uses, and purposes." The language here is in the present tense, and is without condition or qualification. Certainly there is an immediate vesting in the trustee for whatever trusts and uses are later declared in the will for execution by it. One of the purposes for which the trustee shall hold the legal title is the care and maintenance of the family burial lot and the placing of a monument thereon in memory of the testatrix. Another is to hold and receive the assets, and to invest and reinvest the same in good income producing securities. From the income the trustee shall pay taxes and expenses, and shall then add the net income to the existing corpus from time to time for the purpose of accumulating a fund of $100,000. When the net cash value of the corpus in the hands of the trustee shall reach this amount, then an advisory board shall be appointed, as indicated by the testatrix, for the purpose of expending a portion of the net income for aid and assistance to designated classes of persons. The trustee will still hold the legal title, and will have a part in applying the income to charitable uses, notwithstanding the advisory board shall constitute the immediate agency for this purpose, and is granted broad discretion in reference both to objects and means, in the disposition of "that portion of the net income . . which may be turned over to it by the trustee." In view of these and other provisions of the will, it can not be said that the title vested in the trustee only for the purpose *39 of accumulation and was not impressed from the beginning with a trust for charitable use. While it is true that the advisory board shall be the agency for actual expenditure of the funds for charitable purposes, and that this board is not to come into existence until the corpus shall have reached the sum of $100,000, the legal title nevertheless vested in the trustee for all of the charitable purposes, on the death of the testatrix. Application of the fund to such charitable use through co-operation of the board and the trustee was at all times in prospect, and the title was subject to a trust for this general purpose from the very inception of the trustee's holding.
The testatrix had considerable to say upon the subject of accumulation. By the terms of her will she constituted her trustee "the sole judge as to the value of said corpus." It might be said also that she clearly intended to postpone application
of the fund to charitable use until it reached the sum of $100,000, when an advisory board would be appointed for expenditure of such portion of the income as might be turned over to it by the trustee. She provided also that the trustee would have authority to prevent the use in any one year of any portion of the net income in excess of half of it, and fixed a condition "that at no time shall the net corpus" of the estate "be reduced below $100,000." None of these provisions made the accumulation or other event a condition precedent to the vesting of the equitable interest at the death of the testatrix, but were designed only to postpone payment or application to charitable use on stated contingencies, or to suspend such actual use after it may have been instituted, if suspension should be necessary to prevent reduction below $100,000. They all relate to mere management or administration, and not to time of vesting. The law inclines to construe conditions to be subsequent rather than precedent, and favors the holding of estates to be vested rather than contingent, in cases of doubt. Code, §§ 85-902, 85-708;Cooper v. Mitchell Investment Co.,
It is apparent from the entire will that the dominant purpose of the testatrix was to create a trust for the dispensing of charity, and not simply to accumulate a fund, or even to establish a foundation as a memorial for her parents; and it seems to us that we could not declare the trust invalid without subordinating the paramount intention to mere method of accomplishment or considering the means above the end. "Where there is an unconditional gift to charity, the gift will be regarded as immediate and good, although the particular mode of carrying out the charity which the donor has indicated is too remote. Consequently in such a case if a direction for accumulation is invalid, the only result is that the income is immediately distributable in charity; the heirs or next of kin are not let in." Gray on Perpetuities (3d ed.), 525, § 678. "If for any reason it should be impossible to administer a charitable gift by the method selected by the donor, the gift will not fail, but a court of equity will apply the cy-pres doctrine and provide some other method of administering the charity to accomplish substantially the same result." 10 Am. Jur. 682, § 133. Such is the law of this State; for it is provided in the Code, § 113-815, that "A devise or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular *41 mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator." Other provisions of the Code on the subject of charity are as follows: § 108-203: "The following subjects are proper matters of charity for the jurisdiction of equity: 1. Relief of aged, impotent, diseased, or poor people. . . 8. Other similar subjects, having for their object the relief of human suffering or the promotion of human civilization." § 108-201: "Equity has jurisdiction to carry into effect the charitable bequests of a testator, or founder, or donor, where the same are definite and specific in their objects, and capable of being executed." § 108-204: "A charity once inaugurated is always subject to the supervision and direction of a court of equity, to render effectual its purpose and object." § 108-202: "When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention." In the construction of all legacies, a court shall look diligently for the intention of the testator, and shall give effect to the same so far as it may be consistent with the rules of law. Code, § 113-806. These and the other sections of the Code referred to state succinctly and in a general way the law of this State in reference to charitable trusts, so far as pertinent to the instant case. The question is as to the application of these general principles to a concrete situation. Despite the many words in the will and in this opinion, the sum total of the case is just this: a present gift to charity, with no conditions attached to the gift itself, but with directions regarding themode of use; a present gift, with right of enjoyment postponed as it were, provided the words of the testatrix as to themanner of execution may be given effect consistently with law. We are not here concerned with the validity of such directions.
It follows from what has been said, that whether the provisions of the will as to accumulation or other matter relating to administration or management be valid or invalid; or whether a court of equity might interpose to control an unreasonable accumulation or to prevent unreasonable delay, the fund in controversy vested unconditionally in charity on the death of the testatrix, and there is no merit in the contention that the intended trust was void as *42
violating the rule against perpetuities. In further support of this conclusion, see Regents of the University System v. TrustCo.,
The present case is distinguished by its facts from Girard Trust Co. v. Russell, 179 Fed. 446, where, under different provisions of a will, accumulation was held to be a condition precedent to vesting in charity. We think the instant case may also be distinguished from First Camden National Bank Trust Co.v. Collins,
2. The next contention is that the trust is void for indefiniteness, because the time when any funds will be available for application to charitable use is not fixed with sufficient certainty, the trustee having the power to postpone the time indefinitely by exercising an uncontrolled judgment as to value. The provision of the will relied on in support of this attack is Item 12, as follows: "Said trustee shall continue to add the net income from my estate to the principal until the net cash value of the corpus of said estate shall be equal to the sum of $100,000. The trustee shall be the sole judge as to the value of said corpus, and the decision of said trustee in this respect shall be final." This attack must necessarily fail, under authorities cited in the preceding division. If the fund vested in charity as was held in that division, Item 12, being a provision for mere management or administration, would not destroy the trust, even if the item itself should be held void for indefiniteness as to time of actual use. "Where the method of execution of a trust defined by the terms of the instrument creating it is impracticable or illegal, the trust will not be permitted to fail if the overriding purpose of the donor, that the property is to be devoted to charitable purposes regardless of the peculiar method of execution, is manifest from the instrument. Any other course would sometimes defeat the very purpose of the trust, disappoint just expectations, and destroy gifts of great public importance and utility. Therefore, where a main charitable purpose is disclosed with reasonable clearness, directions of the donor relating to management of the trust, not intended as limitations, will be regarded as directory only, and not mandatory, if necessary to preserve the trust and carry out its leading purposes. In such cases, it will be *44 presumed that specified details of management were meant to be governed by circumstances, and this whether they were either impracticable or illegal." 10 Am. Jur. 678, § 127. Furthermore, the grant of such authority or discretion as to time of use, depending on judgment as to value, would necessarily contemplate a reasonable judgment, and not an abuse of such discretion. In case of such abuse, a court of equity could interfere. 3 Scott on Trusts 2046, § 382. Such a provision is not the equivalent of an option to defeat the donor's intention, or of conferring authority to postpone action indefinitely, regardless of true value.
The decision in Egleston v. Trust Company of Georgia,
3. The trust as declared in the will was not void for the following reasons, or any of them, as contended: (a) uncertainty as to classes of beneficiaries; (b) the purposes of the trust are not described with sufficient definiteness; (c) in view of the authority conferred upon the trustee, the fund may be applied to other than charitable purposes. These contentions are based chiefly upon Item 15, in which an advisory board is given authority to expend *45
all or any part of the net income "for the aid and assistance of aged females in Bibb County, Georgia, and of underprivileged children in said county." In later reference to classes in the same item, the words are, "aged dependent women and underprivileged children in Bibb County, Georgia." Construing the item as a whole as it related to women, the word "dependent" must be given signification as further limiting the class of aged women intended by the testator as beneficiaries. The beneficiaries, then, are aged dependent women and underprivileged children of Bibb County. Neither class of persons is so indefinite as to render the trust void for uncertainty in reference to beneficiaries. The purposes of the trust, as distinguished from objects, are for "aid and assistance" to the classes mentioned. Considering these words in connection with the classes, to wit, aged dependent women and underprivileged children, we think they are sufficient to show with reasonable certainty the kind of benefits which the testatrix desired to confer. What are the needs of aged dependent women and underprivileged children? One thing would be financial help in supplying the necessities of life, with education added perhaps in case of the children. There may be still other needs, but the testatrix is seeking to confer aid through financial means, and the language of the will does not fail to provide a guide for the trustee or for a court of equity as to the benefits to be thus extended. Nor is there fatal uncertainty as to the amount to be so applied. Compare Speer v. Colbert,
Neither the advisory board nor the trustee will be authorized to divert the fund to other than charitable purposes, as contended. While the advisory board is in terms given final discretion as to the objects of the charity and the means by which it shall be administered, and is called upon to exercise Christian charity in determining the specific objects and methods of carrying out the donor's wishes, her principal wish and desire was that the net income as turned over to the advisory board shall be used to do the greatest possible good "to aged dependent women and underprivileged children in Bibb County, Georgia;" and upon a fair construction of the will the trustee and the advisory board are directed to use the fund in the first instance for the benefit of these classes as the preferred objects of the donor's bounty. If there should ever come a time when there are no such children or females in the *46
county, then the advisory board with the concurrence of the trustee is authorized to use the net income for such other charities in Bibb County as in their opinion would most nearly approximate the testatrix's wishes. This was not authority to select other charities to the exclusion of the classes specified, or to apply the funds to purposes other than charity. See, in this connection, Beall v. Fox,
Judgment affirmed. All the Justices concur, except Atkinson,P. J., disqualified.