60 Neb. 796 | Neb. | 1900
In the will of Joseph' Creighton, deceased, among other provisions, appears the following: “Item. I hereby give and bequeath unto the Rt. Reverend James O’Conner, Bishop of Omaha, if he shall survive me, the following lands situate in the county of Douglas, in said state, that is to say,” (description of land follows) “if the said Bishop O’Conner do not survive me, then my will is, that the said land shall go to his successor as Bishop of Omaha, my wish and direction is that the said Bishop O’Conner, if he shall survive me, or his said successor as Bishop of Omaha, apply the said lands and the proceeds arising from the same and the sale thereof to some charity according to his judgment but I prefer that the same be applied to the establishment or maintenance of an orphanage.”
By the terms of the will, the testator sought to dispose of all his property by three separate and distinct provisions. By the first, certain real estate specifically described was devised to his grand children, they being the children of the contestant, who is his only daughter and sole heir at law; by the second, in the manner herein quoted; and by the third, he bequeathed all the residue and remainder of his property, both real and personal, to his said daughter, Mary Bridget Shelby, in trust, for her children, or such of them as shall be living at her death, such property being charged with the sum of $15 a week to be paid by his said daughter for the maintenance and
As thus presented, the sole question involved is as to the validity of the provisions of the will with respect to the disposition or attempted disposition of a portion of the property of the testator for charitable purposes. While some other questions are briefly argued relative to the course of proceeding taken by appellants and plaintiffs in error, we find no reason why the trustee should not be heard in this court. His case, we are disposed to the view, is properly before us for consideration upon the merits of the controversy with respect to that part of the instrument by which the testator sought to apply a part of his property to objects of charity, and this without necessarily determining the status, in this proceeding, of the St. James Orphan Asylum, which it is claimed has been made the beneficiary under the terms of the will.
We are indebted to counsel on both sides for their able and learned discussion of the many questions involved, and the intelligent manner in which the subject is presented, as well as the exhaustive research of authorities evidenced by the many citations in the several briefs now before us.
While the plaintiff in error argues from different hypotheses as to the validity of the controverted provisions of the will, we are strongly of the opinion that all must be discarded as unwarranted by the positive language used and therefore untenable, save the fourth and last one, which we conceive to be the only position which has real and substantial merit to rest upon. The fourth position is, that if a trust is created by the terms of the will, it is for charitable uses, and the fact that the beneficiary or beneficiaries are indefinite and uncertain does not therefore render it void and of no force and effect. On this proposition the contestant takes direct issue, and therein lies, in our judgment, a correct solution of the matter in litigation.
The question is one which, in the beginning, we are constrained to say, is surrounded with difficulties, and regarding which there is much diversity of opinion and an irreconcilable conflict in the authorities adverting to or passing upon the subject. These divergent views, as it occurs to us, are occasioned by a difference of opinion as to the correct doctrine of charitable trusts by devise under the common law, and controlled also, to some extent, by statutory provisions governing the subject. By
While the earlier opinions of the courts of this country, following Baptist Association v. Hart’s Executors, 4 Wheat. [U. S.], 1, held to the doctrine that charitable trusts in England were administered under the provisions of the statute of 43 Elizabeth, and the extraordinary powers above referred to, in the later and more thoroughly considered case of Vidal v. Girard’s Executors, 43 U. S., 126, a different conclusion was arrived at, and in that opinion it was announced that charitable trusts were administered. by the courts of chancery of England exercising
The views expressed by Judge Story, both as to the common law jurisdiction of courts of chancery, and the validity of a devise for charity, although general and indefinite, appear to be better supported by authority and sounder in principle, and to have been adopted by a majority of the courts of last resort of the different states of the union. From a consideration of the foregoing, we are disposed to the view that the doctrine of charitable trusts was a part of the common law jurisdiction of the courts of chancery of England exercising judicial powers only, and as such has been transplanted into the courts of this state possessing common law equity powers, and that in the administration and enforcement of charitable trusts of the character under consideration the exercise of the powers of the court must be solely judicial and none other.
In Miller v. Teachout, 24 Ohio St., 525, a testator had devised the residue of his estate to an executor to be invested for the use of his wife during her lifetime, and at her death, the property should be appropriated by the executor to the advancement of the Christian religion, in such manner as, in his judgment, would best promote the object named. The executor accepted the trust. “Held, That the testator had conferred ample power upon the executor to relieve the bequest of all objections arising from its indefinite character, and that so long as no obstacle exists to the exercise of the power at the proper time, the courts of this state will not, in advance of that time, interpose, on the application of the heir, to prevent its exercise.” Says Judge Day in the opinion: “Although the power of the courts of this state to devise a scheme for the application of a vague charity may well be questioned, it does not follow that the testator can
In Grime’s Executors v. Harmon, 35 Ind., 199, cited by contestant in support of the contention that the provisions under consideration are void for indefiniteness and uncertainty, it is declared in one paragraph of the syllabus that, in a case where a charity does not fix itself upon any particular object, but is general and indefinite, and “certain and ascertainable trustees are appointed with full powers to select the beneficiaries and devise a scheme or plan of application of the funds appropriated to the charitable object, the court will, through the trustees, execute the charity.” Says the author of the opinion, Judge Buskirk, after reviewing the many authorities on the question; We claim that they establish
In Fontain v. Ravenel, 58 U. S., 369, the residue of an estate, left in trust for the use of the wife of the testator during her lifetime, was to be disposed of for such charitable institutions in Pennsylvania and South Carolina as the executors might deem most beneficial to mankind. The persons named as executors died during the lifetime of the wife, and before any appointment of the charity was made or attempted. It was there held that the charity could not be carried ont, because the ex-ecutors were vested with mere powers of appointment, and this not having been exercised, the trust must fail. The logic of the opinion, as well as its direct expression, is that an appointment by the executors at the proper time, under the powers vested, had they lived, would have rendered the trust valid and enforceable in the courts of equity.
In Russell v. Allen, 107 U. S., 163, a more recent case on the subject, Mr. Justice Cray gives expression to the following views: “They may, and indeed must, be for the benefit of an indefinite number of persons; fox*, if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one of the characteristics of a legal charity. If the founder
In Dye v. Beaver Creek Church, 26 S. E. Rep. [S.Car.], 717, decided in 1897, the court, after referring to the many conflicting authorities on the subject, deduces, among others, the following principle: “If a trustee is appointed by the testator, and the will shows that the object of the devise, though expressed in general terms, is for a charitable use, the trust will be declared valid. In such a case the duty devolves upon the trustee of devising a scheme for carrying the trust into effect.” In the same opinion it is said: “The reason a trustee is allowed to enforce a trust, the object of which is only expressed in general terms, is that in exercising his discretion he carries out the intention of the testator.”
In re Murphy’s Estate, 39 Atl. Rep. [Pa.], 70, decided in 1898, it is held: “A bequest of the residue of an estate To be divided among such benevolent, charitable and religious institutions and associations as shall be selected by my executors,’ is not void for uncertainty.”
Authorities holding generally to the views hereinbefore indicated may be multiplied, but it would serve no useful purpose, and we content ourselves with referring only to the following in harmony with those already quoted from: Duggan v. Slocum, 83 Fed. Rep., 244; Hoeffer v. Clogan, 49 N. E. Rep. [Ill.], 527; Staines v. Burton, 53 Pac. Rep. [Utah], 1015; People v. Cogswell, 45 Pac. Rep. [Cal.], 270; Phillips v. Harrow, 61 N. W. Rep. [Ia.], 434; Fox v. Gibbs, 29 Atl. Rep. [Me.], 940; Powell v. Hatch, 14 S. W. Rep. [Mo.], 49; Minot v. Baker, 17 N. E. Rep. [Mass.], 839; Claypool v. Norcross, 9 Atl. Rep. [N. J.], 112; Dodge v. Williams, 50 N. W. Rep. [Wis.], 1103; Darcy v. Kelley, 26 N. E. Rep. [Mass.], 1110; Bedford v. Bedford’s Adm’r, 35 S. W. Rep. [Ky.], 926; Guilfoil v. Arthur, 41 N. E. Rep. [Ill.], 1009.
Holding to the doctrine contrary to the authorities
An examination of the authorities cited by counsel for contestant holding bequests invalid for uncertainty and indefiniteness, shows that the decisions in many of them rest upon facts peculiar to the case which was under consideration; such as a failure to nominate trustees; to provide a means for the selection of beneficiaries; or to empower trustees or executors to make selection; or the devise was to charity generally, without designating the manner in which the charity may be executed;
Another class of cases may be briefly referred to, which in principle may assist in arriving at a correct conclusion in the case at bar. The rule as to executory devises, depending for their complete execution upon the happening of some future event or selection, has invariably received judicial sanction, and such devises have been held valid. Thus, a bequest may be made to a corporation to be organized after the death pf the testator, as was the case in the Tilden Will Oase, supra; for a site for the erection of a hospital for foundlings, to be built by a corporation to be established by congress, — Ould v. Washington Hospital, 95 U. S., 303; for the incorporation of a society for the purpose of maintaining and supporting aged, decrepit and worn-out sailors, — Inglis v. Sailors’ Snug Harbour, 3 Pet. [U. S.], 99; “for the purpose of founding an institution for the education of youth in St. Louis county, Missouri,” — Russell v. Allen, 2 Sup. Ct. Rep., 327. In all these cases, and many others which might be cited, the bequest was held to be valid and treated as an executory devise, depending upon the happening of some future event, which, when occurring, would vest the donation as contemplated by the testator.
In the present case it is urged that, while in many of the states charitable gifts general in their nature have been held valid, there was in all such cases a limitation as to the locality of classes from which the beneficiaries were to be chosen. To us, conceding the proposition, which we think does not hold good in many cases, this seems to be only a difference in degree, and not in principle. If a bequest to “the poor of California,” or “the children of the colored race,” or “the charitable institutions of Pennsylvania and South Carolina,” or “to the Beaver Creek Church for poor children for their tuition,” or for “benevolent and charitable purposes to be used in Cumberland county, Maine,” is valid, and capable of being administered in courts of equity, we are unable to
This contract, like all others, must be construed with a view of carrying out the intention of the testator, and unless there is something in it contrary to the laws of the state, or in contravention of public policy, no reason exists for declaring it invalid. The object of the trust is clearly charitable, and is specified as such in so many words. A trustee is named, and is empowered by the testator to select for him, and as an expression of his will, a charity upon which the property in controversy is to be bestowed. The trustee has accepted the trust. He is willing to carry out its provisions, and has attempted to do so. He stands ready to make certain the very matter of uncertainty upon which contestant relies for a judgment. The will is for an object which has always been looked upon with favor by the courts. It is one of the most worthy of
Reversed and remanded.