130 F.2d 440 | D.C. Cir. | 1942
By the terms of Item III of his last will, George F. McNichols, deceased, a resident of the District of Columbia, provided as follows:
“Item III. All of the rest, residue and remainder of my estate and property, of whatsoever character, whensoever acquired and wheresoever situate, including all estate and property to or in which I shall have any right, title, claim or interest whatsoever at the time of my death, I give, devise and bequeath, in fee simple and in absolute estate, unto the Holy Name Cathedral, State and Superior Streets, Chicago, Illinois, for masses for the repose of my soul.”
The District Court found the facts to be as stated in the answers of the executor and the Bishop, and concluded as a matter of law that Item III of the will is not ambiguous but created a valid charitable trust; that the Bishop is the legal entity entitled to receive and hold the property bequeathed and to administer the same for the benefit of the cathedral. Summary judgment was entered accordingly.
On this appeal the principal point urged is that the bequest is void for uncertainty, though it is also insisted that, without regard to this, the court below was, in the circumstances, without power to enter summary judgment.
We have no doubt that a trust for the saying of masses for one’s soul or for the souls of others—if otherwise valid— is good as a charitable trust. Matter of Kavanaugh’s Will, 143 Wis. 90, 126 N.W. 672, 28 L.R.A.,N.S., 470; Re Estate of Hamilton, 181 Cal. 758, 186 P. 587; Hoeffer v. Clogan, 171 Ill. 462, 49 N.E. 527, 63 Am.St.Rep. 241; Gilmore v. Lee, 237 Ill. 402, 86 N.E. 568, 127 Am.St.Rep. 330; Coleman v. O’Leary’s Executor, 114 Ky. 388, 70 S.W. 1068; Obrecht v. Pujos, 206 Ky. 751, 268 S.W. 564; Re Schouler, 134 Mass. 426; Webster v. Sughrow, 69 N.H. 380, 45 A. 139, 48 L.R.A. 100; Kerrigan v. Tabb, N.J.Ch., 39 A. 701; Moran v. Kelley, 95 N.J.Eq. 380, 124 A. 67, affirmed 96 N.J.Eq. 699, 126 A. 924; In re Morris, 227 N.Y. 141, 124 N.E. 724; Rhymer’s Appeal, 93 Pa. 142, 39 Am.Rep. 736; O’Donnell’s Estate, 209 Pa. 63, 58 A. 120.
Professor Bogert states the general rule as follows: “In nearly all American states where the question has arisen a trust to spend capital or income for masses for the soul of the testator, or his relatives, or the souls of other definite persons, or the souls of a class of deceased persons, or the souls of the deceased indefinitely, no matter of what duration the trust may be, will undoubtedly be upheld as a charitable trust for religious uses.” Bogert, Trusts and Trustees, Vol. 2, § 376, p. 1191.
Counsel for appellant do not contest this proposition, but insist that the bequest involved here is void because the Holy Name Cathedral is an unincorporated body and that therefore it is impossible for the court to determine whether the bequest is to the church building or to the Catholic Bishop of Chicago who, as a corporation sole, has title thereto. On this premise, they further argue that there is no possibility of certainty as to who should say the masses—whether the priests of the cathedral or the Bishop—and that this uncertainty is naturally an uncertainty as to the trust itself. But we think this construction would be straining the universal rule' in relation to charitable trusts. It is enough if the donor sufficiently describes the nature and purposes of the trust, and in general terms the class of beneficiaries. In Darcey v. O’Brien, 62 App.D.C. 151, 65 F.2d 599, we said, following Russell v. Allen, 107 U.S. 163, 2 S.Ct. 327, 330, 27 L.Ed. 397, “if the founder describes the general nature of a charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery.”
This, we believe, is the rule in all but one or two States in which, by statute, a different rule is applicable. See Russell v. Allen, supra, and Scott, Trusts, Vol. 1, Sec. 97; Vol. 3, Sec. 397.2 for a full discussion of the subject; see, also, Hoeffer v. Clogan, supra; Darcey v. O’Brien, supra; Burke v. Burke, supra; In re Kavanaugh’s Will, supra; In re Semenza’s Will, 159 Misc. 487, 288 N.Y.S. 556; Tarver v. Weaver, 221 Ala. 663, 130 So. 209; McDole’s Estate, 215 Cal. 328, 10 P.2d 75; Brinsmade v. Beach, 98 Conn. 322, 119 A. 233; Matter of Winburn’s Will, 139 Misc. 5, 247 N.Y.S. 584; Matter of Patterson’s Estate, 139 Misc. 872, 249 N.Y.S. 441.
In the case under consideration the intention to create a charitable trust is clear, the purpose of the trust is definite and certain, and the church in which the masses are to be said is designated. In the circumstances, we think the court below was clearly right in holding that Item III of the will creates a valid charitable trust.
Nor do we think there is any substance to the objection that summary judgment for appellees was improperly entered, for there was no genuine issue of fact in the case.
So much of the order as directs the payment of the legacy to the Catholic Bishop of Chicago, a corporation sole, for the Holy Name Cathedral, will be amended by inserting after the words “a corporation sole” the words “as trustee”, so that the order to the executor will require the payment of the legacy to the Bishop of Chicago as trustee for the Holy Name Cathedral.
Affirmed as amended.