3 S.C. 502 | S.C. | 1872
The opinion of the Court was delivered by
The intention of the donor is to determine the character of the trust created by .the receipt of Clarkson, November 18, 1858, endorsed on .the deed of the executor of Latta, conveying to the plaintiff the premises referred to in the bill. We are not satisfied that it is to be ascertained from the declaration of the donor in his complaint in regard to it, to which the Circuit Judge seems to have given weight, nor even that the nature of the trust apparent on the face of the instrument, can be modified or controlled by any evidence on the part of the donor, as to what he proposed by the creation of it, save in the case of alleged mistake or fraud. The words are not of doubtful import; “the trust was for the congregation of Christ Church, Columbia,” and it was accepted by and “for the Vestry of Christ Church, Columbia.” It is not to be denied, as is contended by the appellants, that the congregation might have compelled a declaration of the trust in their behalf, or even required that it should be executed by a title, while they had an existence as such congregation. The vestry, of which Clarkson was one, must have represented a body from whom they derived their official authority, and they who constituted the body at the date of the receipt, were the congregation of Christ Church, Columbia, subject to be increased by members of their own acceptance. Eor this body, whoever constituted it, he held, and. if they now exist, though diminished in numbers by natural causes, they may demand of Clarkson all their legal and equitable rights under the trust.
“Where the donor’s mind applies to a particular object, and the same is lawful, a general intent cannot be inferred.”—Jeremy Eq., 245. The expression of the one object which is the subject of the
The subject is so fully treated by Mr. Story in his Equity Juris, prudence, that it is but necessary to refer to his conclusions from the authorities which he has collected. In Section 1182, he says: “All these doctrines proceed upon the same grounds, that it is the duty of the Court to effectuate the general intention of the testator. And accordingly the application of them ceases, whenever such general intention is not to be found. If, therefore, it is clearly seen that the testator had but one particular object in his mind, as for example, to build a church at W., and that purpose cannot be answered, the next of kin will take, there being in such a case, no general charitable intention.” As it is the intention which is to govern and regulate the charity, the same rule must apply, whether it is created by deed or devise.
That the donor intended the proposed trust for the benefit of the congregation of Christ Church, Columbia, admits of no question. If it had been incorporated, and thus accorded an existence during the continuance of its charter, no matter by what name, if the corporation consisted of those who were the expressed objects of his bounty, there would have been an object upon which the trust could have attached, and by successive renewals its existence would have been perpetuated. According to the fact, as found by the Circuit Judge, the “ congregation of ChristChurch no longer exists.” If there is no such congregation, who is there to claim any deeds or even any benefit by virtue of the endorsement on the title, or to demand its execution by a decree of the Court? The donor had in his mind the congregation of the church, recognized as such, represented by the vestry, and when that is dissolved the members dispersed and scattered, is the title to this plaintiff never to revert, because, perchance, at some future time, there may arise another such congregation succeeding to their rights ? Is it the mere name that is to confer on others who may assume to be the congregation, the right to have this trust declared in their favor? It so, persons, though differing with the donor in his particular religious creed, under the name of “ Christ Church, Columbia, might demand the enjoyment of the trust, which it is manifest he intended for the individuals who composed the congregation to which he referred, and who, by connected association, if it had not been dissolved by consequences unforeseen and disastrous, might yet have composed it.
The building of the church by the congregation, with the assent
The doctrine of cy pres, which it is sought to apply to this case, is inconsistent with our institutions, and has never prevailed in this State. It is an arbitrary rule introduced into the common law from the civil law, clothing the Judges with a discretion regulated by no rules or principles, but depending entirely on the exercise of their will. We would hesitate long before we endorsed it, even if, by the force of authority, we were compelled to adopt it. We are, however, freed from the necessity. In Beckman vs. Bonsor, (23 N. Y., 9 Smith, 298, affg. S. C., Barb., 260,) it was held “ that the cy pres, which constitutes the peculiar feature of the English system, and is exerted in determining gifts to charity, where the donor has failed to define them, and forming schemes of approximation near to or remote from the donor’s true design, is unsuited to our institutions, and has no existence in the jurisdiction of this State on this subject.” Such is the rule in the State of New York.
In Atty. General vs. Jolly, (2 Strob. Eq., 395,) Chancellor Johnston, delivering the opinion of our Appeal Court, says: “Then the question is whether, if the legacy had been to this church, by name, the government of the denomination to which it is attached is such as to prevent its receiving the benefits intended. If that were the case, it by no means follows that the Court would be bound to divert the legacy to other kindred objects. That is a doctrine which. this Court would be very reluctant to adopt without a strong necessity, and very mature reflection. It has never, to our knowledge, been adopted or recognized in our Courts, and we are persuaded that it ought not to be adopted.”
The trust having failed for want of persons capable of claiming its execution, on well recognized principles the property reverts to the donor.
The order affirming the judgment below, and dismissing the motion, has been already filed.
