*1 61 So.2d 857 Earl, sufficient been sent Dr. L. O. JORDAN v. STATE. respondent exercise of to invoke the 7 Div. 184. motion ruling on the judge’s discretion in for continuance. Supreme Court of Alabama. Dec. 1952. this reluctance of court prius override the action nisi courts in exercising respecting their discretion con Crumpton, Ashland, petitioner. A. L. postponement

tinuances or is tra of causes Garrett, Atty. Gen., opposed. Si spoken ditional. often We have it and extraordinary referred to the fact that this STAKELY, mandamus, usually employed writ of Justice. command official action rather than control Petition of L. O. for certiorari Jordan discretion, very sparingly should be used Appeals Court to review and re- one, cases as the instant otherwise its use vise judgment and decision of that grievance”

would become an “intolerable Court the case of State, Jordan to this court but to the lower Ala.App. 572,61 So.2d 855. properly dispatch courts in their efforts to petition Writ denied and dismissed. parte business. Organ Ex Seals Piano & Co., supra. case, This last cited noting LIVINGSTON, J.,C. and BROWN and that, fact and before the writ will be LAWSON, JJ., concur. awarded, gross abuse of discretion must shown, quoted approvingly Ex parte Co., South A. R. & N. following, apropos which is here: very

“It is evident that if this court assume, by mandamus,

should to inter-

fere control of one matter of dis- jurisdic- cretion in the exercise of their 61 So.2d817 State, tion the inferior courts of the TUMLIN et al. v. TRUST TROY BANK & might interfere all with matters of a CO. et al. like Then every character. contested 4 Div. 538. continuance, every order Supreme Court Alabama. State, way, would in this sooner June 1950. later, brought here for review. This grievance would be intolerable Rehearing As Modifiedon Denial of indeed. Such has not heretofore been Dec. 1952. important considered the office granted writ mandamus. It

to control matters of discretion.

» ‡ stated, case,

As this is a borderline

but it is doubtful to our minds that the writ require

should be awarded even to the as

sessment the defendants of considered,

the court costs. So it must be writs are not issued in

denied. Such doubt e There must legal ful cases. b a clear 829, 32; 831,

right. § § Am.Jur.

Writ denied. except All the concur STAKE- Justices

LY, sitting. J.,

2áO\ *3 Brantley, Troy, Oliver W. Files Cren- Crum, Montgomery, shaw and B. P. Alto V. Dothan,

Lee, III, Ball, and- Chas. A. Stein- er, Ball, Crum & Weil Ball & Mont- Selma, for W..Lapsley, gomery, and John

appellants.

Henry Upson Sims William H. Brantley, Jr., Birmingham, amicus curiae. FOSTER, Justice. *4 appeal in this

This is second case Co., (see, Troy & Henderson v. Bank Trust The 835). 34 So.2d same questions presented legal argued. and changes in the allegations The made hill the result or control do alter legal questions. consideration provisions of the will and the con- complainants tentions are set out on appeal, which former reference is here made, repeated be they will not here in and detail. appellants’ see no occasion for

We coun- express the desire sel to that we “face the squarely” we since have issue manifested disposition so. simply do We no and plainly did not agree with the contentions repeated. made now The brief asserts that “heart of this .hinges case” around feature of the provides (Item will which “At the ex- V) piration twenty years after death bequests and after all herein shall have paid directed, as herein my said trus- tee shall cause to be formed an association styled to be known as ‘The Charles Henderson Educational Association.’ This stock, capital association shall have no principal place its Troy, of business Pike County, Alabama, and purpose its shall be encourage and foster education equipment erection and of school buildings as hereinafter set forth.” It pro- further vides the directors or managers shall association be three bona fide citizens Alabama, County, of Pike annually elected Troy the directors of the Bank and Rushton, Montgomery, H. Marion J. Company (which Trust is the trustee). Troy, appellee Bank, and Wilkerson, shall This association receive from the trus- Gen., pro Carmichael, Atty. se. A.A. the income of the trust tee estate. The

corpus shall be held managed by the This income shall trustee. be used equip- is that the trust is violative of the the construction and association for county perpetuities aided unless can buildings within of school ment principle. principle And stood Pike, Specific direction Alabama. Alabama, repudiated adopt- buildings though later location of the given existing ed Code of Title section in the material and the conditions their specific location. justify argument is Hend- at the ex- that the Charles Item VI is substance that years date of erson Educational Association is not piration of from the twenty twenty years organization organized Charles Henderson until of said Association, death Henderson and there is Educational it shall of Charles cease organ- force buildings, organ- compulsory process erect school and another its no provided for in the will or ization shall formed called the “Charles ization either Association,” argument quotes Carter Memorial Henderson law. Adm’r, as follows: self-perpetuating shall- and continue in- v. Balfour’s purpose its definitely shall be the con- recognize do not the doctrine of “I hospital struction maintenance of a is, pres,’ you substance ‘cy of crippled the treatment children. The society specified find the cannot *5 composed organization shall of gov- be will, charity apply the to the fund erning people appointed board of six testator, the intended court will expiration the trustee. The of their charity apply some it to other as respective one, two, three, terms shall be nearly analogous possible. it four, years, five and six and remaining bequests should paid only to the shall members select the successors. The will, specified in the or their societies is directed trustee to continue to manage societies, If the agents. authorized corpus only and' income shall be did either not exist at time of them over the association turned for the con- the testator’s or cannot now death hospital, struction and maintenance of the found, organized above known as expended by and board for governing stated, society bequest, then the crippled to minute direc- according children or societies should be considered tions. disposed lapsed legacies.” That principle statement of the has been brief, Quoting they appellants’ from to, adhered equitable but the doctrine of pay “contend that tho-se directions to approximation or' deviation now aided also ‘The Charles Henderson Associa Memorial 1923, 10438, (Code statute section tion’ a non-existent association to be 1940, 58, Code of 57) Title has al section formed at a remote time—violate ways obtained here distinguished from for the pre same reasons applicable to the cy pres. many In cases courts draw vious directions concerning Educational distinction between prerogative cy pres Association; principle that the ‘gift over judicial pres. cy Whitehead, Erskine v. 84 one charity ap another’ is 357; Ind. 676. cases In our plicable first invalidity because Am.Jur. what judicial cy pres, courts call we gift; secondly, first because of the non- call approximation. Lovelace v. and, character gift, first Institute, 271, 381; Marion 215 Ala. 110 So. thirdly, because of the lapse indefinite Pearson, Williams v. 38 Ala. 299. expiration time of the life of pos the Educational Trust and before the short, In this means that when the effect taking sible of Item through Six the execution of the trust cannot be adminis formation Memorial Association.” exactly tered in accordance.with the terms argument first appel- advanced by of the trust instrument (the beneficiary be lants, certainly square- which we will “face ing ascertainable), a court of equity on ly” appeal, as we did former vary based such details of to se administration upon their question contention in- object cure the for which the trust was principle controlled cy volved created. v. Berry, Thurlow 631, 247 Ala. argument now, pres. The made before, 726; Id., 25 So.2d 597, 249 Ala. 32 So.2d respect Now with 526; College, 242 Hen- Huntingdon Charles Heustess v. Association, derson 272, 777; Educational we Lovelace v. Marion note 5 So.2d Banks, incorporated it is Institute, 220 Ala. not to be supra; King but to be v. composed 274, 871; Noble v. First National of three men who will be the 499, 393; Bank, managers. 236 Ala. Dunn directors and v. It will own or Ellisor, 15, 141 Ala. 700. property hold no of the trust. It will receive income which the trustee shall distinguish Many authorities do not be turn over to it to invest in the construction cy pres approximation tween equipment buildings of school in Pike Corpus Secundum, terms. 14 use Juris County, whose title be in the shall State 52, 512, 46, Charities, 47, §§ 51, page *6 terms of trust 885; 642, the will. The association Herman, Reasoner v. 191 Ind. but an aid in is administration of the ; Perry Trust, the 134 N.E. on 276 section trust, beneficiary 728, 1242, it. Codman v. of page see note 54. supra. Brigham, are the beneficiaries prerogative pres cy It the is public County in Pike to be benefited repudiated. which our Court Uni had the buildings. State school May, versalist Convention of Alabama v. 515; 147 Ala. Carter Bal v. evidently It is intended to be a Adm’r, 815; four’s 19 Ala. v. Williams public system the of school of the State Pearson, Ala. 299. We are not now County by equipping constructing and upon give called effect to section school, buildings county suitable in said Title Code. where needed. not doubt that it We do understood, When this situation is it is is a charitable trust to all members benefit position not difficult at all to maintain the county in said who are usu agreement which the Court in with Justice ally by public benefited schools. It is an Stakely appeal on the former that stated object designed express ascertainable principle cy pres applica- the of has no objection ed the It donor. is no to such tion, meaning thereby prin- of course a trust that the trustee (or some adminis ciple repudiated which this Court has agency) presently incapable trative is cy pres called was not an ex- taking object on the duties. Since is judicial power. ercise of the But this described, clearly clear and the want of consistently princi- Court has held to the a trustee or 'supplied his assistant will be ple equity that a court of in administering by equity. a court Pearson, Williams v. right trust has vary charitable 299; Brigham 38 Ala. Brig v. Peter Bent of such administration so that details Hospital, Cir., ham 134 F. 513. may trust for the used beneficiaries named designated by descrip- The trustee is the are. fiscal manager wholly corpus tion. It is immaterial whether that of the trust fund hold the cy power pres, is called as it is in some legal title to it and earn income from it. states, approximation as it in Ala- purpose That is is for which the up. bama. is set After certain beneficiaries use, income, specified such au- is charitable it for provided and, thority so, is a detail administration it is purposes. When provide power its the court has that the selection the fact affected proper to deviate from and when is the creation particular left to beneficiaries judicial That prescribed method. is agency trustee or to an not interested equitable approximation avail- cy pres or Weaver, 221 Ala. the trust. Tarver v. Birmingham in Alabama. v. Trust able 130 So. Johns Co., Savings & say fallacy It also a is Such is also the nature the Woodward charity an is based on uncertain See, Berry, supra. will. Thurlow v. schools, For the contingency. benefit of thepry appellants’ coun- We think the twenty certainty it based pres principle cy is erroneous sel on years expire the death of tes will assuming that Alabama has never contingency no or uncer There is tator. pres equivalent adopted judicial tainty not con about that. The approximation, under name Educa the formation ditional educational association ben- de Association to' it. The execute tional eficiary But the trust. neither is charity, entire income to votion fact. equipment of school the construction applies to principle the Me- The same fixed and vested dedication buildings, is a duty charged Association morial purpose. The to that all income n County in Pike to' and maintain erect particular which shall administer agency crippled crip- children. hospital for qualifications may Certain be uncertain. pled the beneficiaries as stated children are up-to fund justify use are set Pearson, supra, and Tarver Williams v. place. certain given This like Weaver, supra. The Memorial Associa- up entitle qualifications that be set tion, Association, is but Educational char persons certain to have the benefit of crippled instrumentality to see that children, ities, or standards for crippled receive the benefits intended to children benefits, up in the Woodward as set school provided Bryant, for them. Thomas Berry, supra). But (Thurlow 487, 169 A.L.R. n fund is S.E.2d 185 Va. unconditionally completely *7 309, 257; Brigham, Codman v. 187 Mass. irrevocably those benefits and vested for 394; 1009, 1008, Am.St.Rep. 72 N.E. 105 hold persons designated to in such as are Brigham Hospi- Brigham Peter Bent v. in ex must be title. There of course tal, supra. title at person hold the istence to pass directly anything The will not does testator, will or the court death association or the hos- educational a is not to appoint gift here one. The pital; and, pointed out in Codman as v. charity not in existence which is supra, they Brigham, existence, mere are details uncertain into is coming whose This is different administration. status contingent upon an event. uncertain passes property in which the will from one charity is not association. supposed to of named institution trustees a Here, condition gift is not on existence, to then in but which is not irrevocably dedicated to whatever. It is perma- existence has existence its building equipment school houses. nently For terminated. a court then to up jus- standards set There certain charitable institution some other as name tify application its to a certain situation. cy pres beneficiary prerogative is comply not a condition But. a failure to is except existence Alabama recent locality charity. If does not one Banks, 274, Ala. King 220 124 statute. v. may. comply only another It is when So. 871. complete inability to use the there a provides But when the will purpose up for will fund for the set that it up or other lapse. creation of association author If trust is set on a condi- ity pass shall things happen, the trustee funds that it is tion certain shall authority contingent. used that distribute That is this trust.

24=5 Weaver, lustrated in Tarver 221 say that Ala. v. It is trite 663, although the 130 209. immediately So. may vest funds If postponed. enjoyment their time of There is a clear distinction between those the death immediately vests on title parts of (1) the instrument which declare up are set standards the testator (cid:127)of gift its purpose, (2) those members qualifications of those for its which direct administra- mode benefits, enjoy public who are Ex’rs, 127, 2 tion. Vidal v. Girard’s How. probably persons those standards and under 205; Edwards, 11 L.Ed. v. 227 Morris N. n exist and are charity qualified, the fully 141, 724; Brigham, 124 Y. N.E. Codman v. their benefit and it for at once vests 309, 1008; Brigham Mass. 72 N.E. 187 v. theory is estab This contingent. Hospital, Cir., Brigham Bent 134 Peter Berry, 247 Thurlow v. principles. lished 513. F. 631, 726. Ala. So.2d Accumulations. Code, 47, provides Title un- Section “it is to the con While essential merely” title a “Accumulation that der objects that its of a valid trust stitution purpose of ac- trust of estate for the “no they designated or described be so any force can cumulation definitely known or may ascertained years” longer than for a term ten effect pur provisions of instrument from the minors). the benefit of On (except uncertainty it. But to create porting gave complete history appeal we a former whom the benefit to the individual setting. statute its charity— not defeat a reach will uncertainty thing is one character significance must be ac course Of public private distinguishes a from “.only” “merely” words corded * * * To constitute trust. the same idea. Un meaning substance use, public benefit, open it must confer a accumulating a trust in that statute der persons. Fes an indefinite number years longer period than ten come Church, Joseph’s torazzi St. Catholic it permissible partly is either or whol 25 L.R.A. Ala. mere ly purpose some other than ac Am.St.Rep. general But the doctrine cumulation. is that the beneficiaries of a this stat given We have consideration to class, designated must ascertainable pointed in some ute of our cases certainty, which the reasonable appeal. former v. Hender Henderson may be select the im trustee authorized to 353; Ramage son, persons objects to receive mediate or * Bank, First & Farmers Merchants Nat. special And has benefits. Goodwyn 30 So.2d repeatedly held a charitable trust *8 Cassels, 482, 405; 207 93 So. Watters Ala. any uncertainty as not fail of on account 227, Bank, 233 v. First National Ala. 171 beneficiaries, prop within a to the ultimate Berry, 280; supra. So. Thurlow v. We erly class, competent is a designated if there have said that accumulation means ad thereby and trustee to selection make a dition of the interest or income beneficiaries who are render certain the principal corpus fund to as or so to by bounty provided trust.” enjoy prevent expenditures of such interest or Savings Birmingham Trust & v. Johns Ramage income. v. First Farmers & Mer Co., 535, 835, Ala. 836. 205 88 Bank, supra; chants Henderson v. Nat. duty de- the selection and to make Henderson, supra; page 41 92. Am.Jur. met qualifications termine if the requirements appellants’ com- In their are brief say and to see that the counsel “we requirement that plied is the association attack of committed will which perform that this some the functions commands excess be per- shall made a trust, permanent manent addition to the is to that extent a trustee corpus. requirement is not to This agent has no purpose administrative beneficiary. il- than accumulation.” This is “likewise (cid:127)extent a 246 principle of remote history this to be affected cases and Our ness, fully here former as we have discussed support what we held on statute subject. trust has vest proper When a chraitable construc consider the appeal, and ed, not the stat statute, accumulations inhibited shall not trust

tion Paul’s v. impound ute are not invalid. St. Church up intention set with the Attorney General, 188, 203, 164 41 Mass. for no other accumulate all the income 231; 600, 21, page be N.E. section 10 purpose as accumulation than Am.Jur. 19; 17, 2 Law of period longer Sims on principal for a *9 death, years after whether not testator’s cy prés states that it is applying It is the rule the estate had vested. liberal construction in this observed ap perpetuities at common law which also Country, prerogative cy pres ap not the requires plies This a to accumulations. plied in England, and that distinction private or charitable vest trust whether point satiety has been to the made in. period. is chari If trust within 653, 191 page all the states. Ind. 134 N.E. death of trustee at table and vests page 280. payable according to directions testator and power apparent that the It is of charities then for benefit a. in the will ascertainable, respect equity with it court of the ma vests within or thereafter administration, chinery of sometimes meaning of the common law as so not called.

247 years organization of the edu- ty after to enable pres, is sufficient cy judicial may cational association. that any take care of menace .a court accumulations, any oc if should .arise at We think the trust estate vested testator, when death of after cur as to death Henderson of Gov. both St. Paul’s Church then vested. interests, that legal and beneficial 188, General, page Mass. at Attorney our accumulations are not controlled 231; Bogert, Trust 204, N.E. of the common and are not statute violative 1083; 353, 1082, Trustees, 3 Scott pages § respect. in that law- rule ; Perry Trusts, (page 2142) section 401.9 on respect to before us nothing There Wills, 399; Page on Trusts, section on dis- fee. The court ad litem guardian In on Law Future 2 Sims page the de- sustaining the cause after missed 508, terests, page section 591. complainants with and taxed the murrer expressed the court doing the costs. In so pro The will of Gov. Henderson authority of section it that was the view twenty years that from his after vides Code, 11, provides for the Title twenty years death all income' doing. in so to use his discretion court annually shall be thereafter used respect has done Nothing provided, it is first has been no litem fee. There guardian ad income should be so used -of such it The trial court fixed. proceeding to it must be added to the year must, proceeding it in direct act on first merely provides for a con -corpus.- This may then be purpose. That action for that occurring to his direction contrary tingency necessary It is not to remand reviewed. years beginning of twenty during a purpose. supple- It is case expiration twenty years mentary to final decree. estate, -death, vesting after the Affirmed. accumulation such is in no sense an public “through menace probably be will STAKELY, J., concurs. if it But should adminis ages”. so tered as to be menace a such a LIVINGSTON, J., concurs in the result. approxima equity, powers -of under its judicial LAWSON, J., deviation sometimes called specially tion or as noted concurs in some pres, then correct the evil cy could him below. declared, necessary be here manner SIMPSON, JJ., BROWN and dissent. specified dependent promote the charity existing, but the situation LAWSON, special- (concurring Justice it the heirs. distributing among ty)- agree authorities court of opinion provi- I am that the power has such is called equity whether sions of Hend- of former Governor judicial cy pres. 2 equitable deviation or erson, consideration, here under do not Trusts, Perry page on section against perpetuities violate the rule or the pres. prerogative They do not It is not places statute which Alabama restriction support theory that such income is sub- upon only. trusts for accumulation § the heirs of the ject to distribution among I, therefore, Code Title -1940. concur testator, to the beneficiaries of opinion conclusion reached in the Attorney charity. Paul’s Church v. St. extent, Foster to Mr. Justice Mass, General, supra, 164 page authority of of this court in the 237; Brigham Peter page Bent N.E. case of Henderson et Troy al. v. Bank & Hospital, supra (7), see 134 Brigham F. al., Trust et Co. 34 So.2d 835. 524 and 525. pages concur also conclusion reached *10 application Foster that has Mr. the said principle pro- trust same Justice crip- not principle visions violate the applica- the maintenance do for provision hospital directed ble to accumulations as it existed at com- children pled twen- beginning mon law. and maintained constructed provided BROWN, (dissenting). charges must within Justice being twenty lives in years. legai appeal decree of former from a On the immediately estate vested in the trustee defendants’ sustaining the the circuit court estate in the part public bill filed some of demurrer to the benefited, subject allow certain law next of kin and heirs at of Charles payable only ances from accrued income.” deceased, Troy Henderson, against Troy Co., Henderson v. Bank & Trust Company, corporation, Bank and Trust 456, 466, 34 So.2d [Italics and the trustee of his estate executor and supplied.] estate, residuary legatee and trustee of his Referring opinion to the testator the Ob- persons interested in will and and other served: “At the time of his death in 1937 complainants éstate, (appellants now Charles Henderson had an estate worth appeal), challenged on the former $3,000,000, produced which an annual net- validity bequest to said trustee on $130,000. income of He had children no them grounds. general To two state grandchildren: dependent No one was bequest (1) terms: that said violated the support except on him for his wife and perpetuities (2) perhaps his sister. His first concern was. attempted created or an create unlawful provide for his wife and sister for perpetuam. trust for accumulation in provided whom he aggregate income bequests up specific set for the use of the $30,000. It seems to us that the will wife, sister and testator’s other favored shows real concern they should re- questioned- proceed- are not relatives this ceive this amount tax free and further that ing. might produce his estate not this amount. opinion In the of the Court on the former up separate He -instructed his trustee to set appeal in writer concurred the them, separate trusts, accounts setting up will was construed as a single an arrangement ‘preferring them over trust; provisions that the made for the use the others’ and preserving also of the tax sep- testator’s wife and were sister free idea. made He the allowances to his separate arate trusts but resting accounts collaterals, aggregating $8600,secondary to corpus on the residuary estate. This those his wife and sister. thought seems have been advanced as supplied.] case, supra. Henderson [Italics a basis for answering appellants’ con- It is familiar law often declared in our major tention that the embracing trust decisions that one who has accumulated an residuary $3,000,000 estate existing may dispose it will as he death, producing testator’s an income desire and the intention the testator is $130,000per annum and since testator’s the law the will so long as it does not $5,000,000 death accumulated pro- public violate policy of the state as. ducing $150,000, an annual income of evinced the constitution and there laws intended the testator as a trust for of. To principle state this in different accumulation in violation of policy words, “A testator right dispose has the and the laws of appears This state. of his entire estate with such restrictions following pronouncements from the limitations, repugnant to estab appeal: on the former “We think law, lished he sees fit.” Pearce v. unconditional and vested im- Pearce, 199 Ala. Thurlow mediately probate of the will. Berry, 32 So.2d 526. Futurity is connected with the We return paragraphs 8 and of9 Item as to the disbursement income Four of the will setting up the trusts for goes individuals, first to certain named the use and benefit of Mrs. Henderson and public schools and then hospital-. to a Mrs. Weedon: From time -of the Julia death of Charles Henderson the fund Upon and the “8. my death, income there- the trustee shall from are dedicated to and in set separate aside fund sufficient stage payment initial out of the in- tax free so that securities the net in- charges, come it being expressly therefrom, of certain come provided in the con- *11 little or no bank as trustee as to shed there- interest payment of tract tor testator’s intent other than $25,000 per light on the than on, less not be shall ex- intended to remember them to the per he $25,000.00 an- year. The sum bequests, yet major wife, tent of such my beloved paid to num to be up purpose accumulating building Henderson, in- monthly Laura M. corpus. unexpendable live. stallments, long she shall so paid to her to so income The said against perpetuities and the rule rule support, mainte- by her her for used up accumulation against setting trusts for use, comfort, as to the nance and basically essentially rules of are applica- disposition and expenditure of upon cupidity policy founded the known same, the sole she shall be tion of attempt hold on to and of mankind to beyond judge. earthly accumulations control designed prevent These rules grave. any excess or “In event there be schemes of settlement “ironhearted the sum of above income property withdrawing long so result payable said wife from $25,000 purposes the uses and of social all from fund, aside in set the securities 307, 283, Kent. 13th Ed. foot- See life.” he treated as said income shall excess statute and scheme violates the Such note. part the income any other against accumula- common also the law part become a estate and shall tions-. the income. residue death, Upon my the trustee shall statutory requirement “9. against ac separate fund, set likewise aside in “No trust of is as follows: cumulations free so that the purpose tax securities sufficient of accumulation estate longer shall be not less net income therefrom for a force or effect can pay $5,000 per year, and shall years, bene than ten unless for the than term $5,000 per year my sum minor in at the date being fit of a sister, Weedon, by will, H. the death conveyance, beloved Julia installments, monthly long so as she the trust which case testator; paid shall live. The said income of such termination extend to the sup- 47, her her for 146. minority.” to her be used Tit. Code § comfort, but as port, maintenance and limit The effect our statute is to of, use, expenditure disposition years from to the of accumulation to ten same, shall application of she until death or date of testator’s judge.” minor. minority sole termination of the of such Bal 3; Carter Code Tit. § It seems to be clear that intention Adm’r, 814; 19 Ala. Clark v. God four’s up inde- here was to set of the testator dard, Nelson 84 Am.Dec. wife and sis- pendent trusts for each his McCrary, 60 Ala. corpus resting a distinct carved ter estate, residuary such trusts out of the involved, An examination of the will here of the named during the lives continue undertake to as we will show, reveals a sep- and at their deaths the beneficiaries purpose design studied on the residuary corpuses revert arate up- pattern the testator to set of settle- unexpendable for all become up tie residuary ment would time. (which estate and its accumulations must necessarily follow), years not for provisions ten sundry in said Various and twenty years death, that the testator’s the intent the testator will show perpetuam. but in To hold bequests to the bank such set- created (Code tlement does violate our statute and that should accumulate as trustee 146), Tit. would unexpended of be to lapsed emas- legacies and unused or § ipsi judicial statute corpus culate said dixit. be added to income should appeal upholds opinion on the first bequests unexpendable. The made become theory alleged charitable trust on inconsider- specific are so individuals legal immediately estate vested on. the estate left compared the immense able as *12 managers and said association be trustee shall in the testator death of number, part three in bona citizens of estate "in fide of Ala., County, repute(cid:127) wholly good Pike men undefined benefited,” a class of community, in standing and their Williamson et al. v. Crim and undefinable. of recognized ability, and interested in 179, 60 So. 293. al., 180 Ala. et County. They said shall’ welfare of will Four of the Item language The of annually be elected the directors of is as follows: Troy Company Bank and Trust of bequeath hereby and give, devise “I Alabama, may Troy, in and be selected my personal residue of the rest and all directors,, in from whole or its real, mixed, in- personal and property, shall serve until their successors and stocks, action, choses cluding all qualified. elected and The first securities, I of which bonds and other managers of such directors or election possessed or over may die seized the formation of such be on asso shall testamentary con- may have which I ciation, annually thereafter. Aft any way may trol, be to which fully- er said association has been may entitled, the same of whatsoever estate, corpus in formed, of situated, Troy consist, and wherever cluding what has been to the- added Company, its succes- Trust Bank death, corpus since held shall be hold, assigns, to have and sors trustee intact and the trustee- simple forever, absolutely and fee association, to the pay shall has- remainder, residue and the said formed, time to time as- from however, power trust, with the needed, the income the estate. The- purposes, to- following uses and county is deficient in suitable school' supplied.] *.” wit: [Italics buildings, earnings, the whole net room the will leaves no This item of to< from the estate are to be devoted of title the tes- doubt as to the character the- building buildings school within trustee nor tator intended to vest County Pike as needed.. holding. language the duration of its Superintendent of Education The State absolutely and in "to have and to hold fee the. shall be ex-officio a member of entire title simple forever,” embraces the Board. corpus, leaving nothing to vest in $50,000.00 be: “No more than shall any except- any group, one or in class or equip- devoted to the construction and usufruct, equity and earn- rents any school This- building. ment of one corpus prop- which remains the ings of the independent the cost cost shall erty of said trustee unless vested in some upcm zvhich the- the lot. lot will, provisions legatee supposed, building is to be erected is perpetuities. within the be donated individuals or language of Item Five building in which the community as follows: spent in erected. No funds are expiration “At twenty years repairs enlarging; nature my death and all the be after erected, buildings, buildings and the paid herein quests shall have been brick, shall be stone or concrete. directed, my herein said trustee shall .land,, buildings erected be on All shall cause to be an association to formed the title to which shall be in the name- styled be known rCharles the State Alabama. Henderson Education Association.’ “The capital This Association shall have no- are to be used in funds n stock, principal place particular year, paid its busi must be pan'ticular Troy, County,, Alabama, income ness in Pike year. If purpose the income year shall be one encourage and its shall not .all the buildings and foster education used erection erected that particular equipment buildings yew, of school at the year end corpus out. The shall into the go Hereinafter set directors or estate-r *13 of the part use treated wife five thousand for thereafter of use of the corpus. sister their re- original to continue for spective lives, the excess of surplus or such association has “1. When said income each year go to vest become to been so with supplied cmd formed part unexpendable of the corpus of funds, managers the directors there- or residuary estate. At the death of the re- shall determine when and where of spective special beneficiaries such tax free building. will commence their they first special securities corpus constituting buildings perma- All shall of some part and any unused of the income return material, brick, cement, nent stone or part to and unexpendable become of said incorporated and shall be erected in corpus. residuary cities, towns or and in constituted duly year Commencing one .school districts which after testator’s levying are up death years -constitutional to continuing twenty three mill tax. The loca- tion after the testator’s death the net lands income buildings suitable for the major from or provided shall be “charitable trust” is the towns first dedicated support the will ..and cities or school of the districts which bequest to favored are located relatives the testator they cmd be all free of and his wife and to accumulation .enmmbrances of the any sicch build- before corpus. The amount ings are of the net income erected thereon. The amount necessary support (cid:127)of and meet such expended funds de- on each vises, $8,600 percent about being .such five buildings shall be as said direc- — that income. net adequate tors income may deem for the first paid and to be n directly 'year after surplus and the to the testator’s death erecting contractor or n egiúpping or unused same, income until the end thereafter vouch- proper with n efs. years of twenty go to accumulation and part become unexpendable corpus of the “Every building shall be erected ac- of said residuary estate. plans (cid:127)cording and under the direc- In the explicit provisions tion face of the co-operation architect an the will paid secured and illustrating delineating directors. On n each intent, part testator’s surplus of the building there shall be no the follow- the income ing inscription, the alleged ‘Memorial to “charitable Charles trust” could person, Henderson.’ vest in any buildings pro- group herein corporate entity vided for complete shall be than trustee bank individual and then (cid:127)units and not in the for accumulation until nature of addi- expiration twenty-one years. tions to other buildings.” sup- [Italics plied.] Therefore, of the Court holding will, provisions These appeal like first net n provisions n doubtas to Four, Item leave no for room income from said trust vested in “that the beneficial when use will of the benefited” at Henderson’s ,the vest, all, beneficiary provisions if at nor contrary death provision named. There is no in the will will. So also are the utterances opinion my Foster,— funds for school supplying for house sites brother Mr. Justice for maintaining school “The devotion of repairing (cid:127)or the entire income to charity, if and when are they equipment houses once con- construction structed, vitalizing them man- buildings, school is a fixed and vested dedi- They left, agement and teachers. purpose.” if cation of all the income to that erected, as cold adopt (cid:127)ever monuments of brick such view would be To tantamount stone. .and Charles rewriting Henderson’s will and interpretation thereof. This the pointed special As heretofore out as to the power has no to do. Court sister, to the wife and (cid:127)devise the will sets special corpus for each up far as use for the consisting So the- construction produce concerned, buildings securities futurity tax free an income of school $30,000, twenty-five thousand annexed the substance of (cid:127)of the gift. First Merchants Ramage v. Farmers & Carlisle, Crawford Troy, school National Bank erecting beneficial use 565. The Fosdick, the cur- Fosdick So.2d

buildings byis attached Mass., Allen, Item Five year’s rent income and under twenty expiration of attach until the cannot . applies to perpetuities testator. years from death in- same as to a devise to state the *14 year’s first income to which Therefore dividuals, corporations. Yates classes or school attach for building the use could Barb., N.Y., Yates, 324. v. 9 twenty-first is the income for the houses applicable real to both and This rule which, custom year according to business property. personal Code of Tit. time of practice at the and prevailing 16. § provisions of death and the strict testator’s restrictions limitations stated The- and will, paid not to the educational be could “conditions testator as by in the will until it earned and available association of beneficial precedent” vesting year. twenty-first It end of .the has at the erroneously treated first use were consultation, pay- suggested regulations rules or under as “but year’s income could be made ments this selected the communities are to be which monthly. provide so does not and already aid of the fund vest receive arrangement made it if such could be would “when”,, “at”, use of the words ed.” application trust not of save “provided”, “after”, “before” and “restric perpetuities. against Under the rule this “condition” tions,” “limitations” and used must, may, the beneficial use not rule vest make said restric necessarily in the will year’s And the income could to be valid. conditions, tions, “condi limitations and selected used until the board be. any in precedent vesting tions” purchased lot and lot was the site and such terest, contingent. such rendering interest by paid by and or some individual 836; Foster, Phinizy So. Ala. 7 90 town, city or in which the school district of Camden v. American National Bank and this lot located building school to be N.J.Eq. 168 A. 598. Morganweck, incumbrances be- must “be free from all therefore, We, limita- conclude that the there- any be erected fore such can building against of the bene- vesting tions over “All shall be on buildings and erected on” or violate the ficial use charitable interest land, the title to shall be in the name which perpetuities the be- against and render of Alabama.” State quest void ab initio and it must fall. Alabama, named bene The State temper going As to show the intent and valid, accept ficiary, may, if the devise is of the testator his will and his drafting maintaining and the burden of and the trust and major purpose to accumulate his estate management by supplying vitalizing and guide its mortmain administration via accept using the same. Such teachers disregard policy legislative and rests ance act must State, note the following: we Mayor Aider legislative discretion. al., of Huntsville Smith et City men of Troy “And the stock in Bank 382, 35 Ala. (of So. Company and Trust which testator 65%) owned shall sold other- courts in the rules applying “The disposed of wise the executor or perpetuities regard all limita Troy trustee so as said long Bank which void initio are not tions as ab Company and Trust remains trustee of necessity effect of framed as to take so provided. trust hereinafter [Pa- legal (under the facts within renthesis supplied.] years), if at all. this case supplied] Lyons et al. v. proceeds sales, “The of all such [Parenthesis — 505, 514, Bradley, any belonging well funds Hospital, 247; Washington Ould v. estate which are necessary 450; 303, 24 L.Ed. Crawford used in the 95 U.S. otherwise administration Carlisle, trust, shall be the trustee from in such Company, designated, time classes the trustee time to invested above as the securities or investments trus- the shares of held stock also may deem in its discretion advis- me at the death in the my tee time able, Telephone Telegraph investments are au- such Standard whether Company. And in the said trust thorised constitution or laws event acquire the State Alabama or not. thereafter fur- any estate shall of trustee is authorized in its discretion or additional shares stock in ther stocks, any Company retain and Bank hold Trust Troy bonds, securities, property, Telephone Telegraph or other or Standard real, mixed, personal my empow- shall Company, he likewise may thereof estate in- vote additional ered to shares my death, at the time all meetings vested stockholders. thoroughly become entitled He is familiar these *15 my after death.” has supplied.] properties and shown himself [Italics judgment. good a man On death of “In the any event that there be ex- resignation, Lane Enzor of said or his of income and cess over above the act, incapacity refusal or the direc- payable $5,000.00 my said sister Troy tors of the Bank and Trust Com- set from the securities aside as above majority them, shall pany, or of select mentioned, said excess shall be treated designate and a suitable successor to part any of income of said perform said him who will duties subject and shall be estate to all the likewise, above And referred to. and conditions and terms limitations thereafter, vacancy occurs a when with provided regard hereinafter shall likewise be chosen. successor said residue.” supplied.] [Italics power Said to. said of stock vote shares “Upon my of death said wife shall and as the long exist continue so sister, the securities the fund Troy Company Bank and Trust con- person so part dying shall become my tinues to act trustee of estate and estate, subject residue of the trust so owns as said trust estate shares long all terms, conditions and limita- Telephone and Standard Tele- ** provided.” tions as hereinafter * * * Company.” graph corpus “The of the estate should in- “ * * * shall the watchword crease, especially with the provision nothing but the income from the bequests mature, .that when any of the year year, estate be used from must from either death the beneficiary, year 'but added to each corpus sums otherwise, the amount of such bene- should striven for. ficiary’s bequest shall remain be- and “ * * * part If any of the income part corpus come a of the of the estate used, one year shall not be year bequests each when it shall returned to the trustee and paid, expenses and all with taxes corpus added trustee satisfied, have been that whatever re- invested as funds mains that particular income invested, theretofore shall have been shall year be entered as so as to increase the income of the corpus subject estate and ” * * * estate. the same treatment as the thereafter original corpus provisions clearly estate.” These show that the [Em- phasis supplied.] up testator intended to set a trust for ac- cumulation violation of our statute and my “I hereby designate appoint the rules of common law. friend, Enzor, Troy, faithful Lane repudiated Alabama, pres doctrine special agent, attorney-in- The than years more a hundred proxy ago to vote at all Court fact since, stockholders, repeatedly renders that meetings doctrine shares of inapt. doctrine approxi- at the time stock held me having to do with Troy Bank and death in Trust mation administra- Hence, say unanticipated a trust. it is that the from the arising tive details quite does not affect charitable since the creation circumstances trusts— of an an erroneous vesting has to do conclusion. nothing with perpetuities. the rule interest or futurity It to me that seems is annexed Berry, Ala. 25 So.2d Thurlow v. re- to the substance of the that the can he in- of these doctrines 726. Neither vested, mainder, being rather than was con- the in- major trust from voked to save provi- tingent, resulting that the pointed out. heretofore firmities will fall sions of the within ban residuary on the estate be resting A trust rule. initio, part of the general is a void ing ab chief characteristic which dis “The Henderson, passing the next estate of tinguishes a ‘vested remainder’ from a of descent the laws dis under kin ‘contingent remainder’ is the present Weaver, Tarver v. tribution. possession capacity effect in to take 130 So. possession vacant should become respectfully dissent.1 I therefore Phrases, Words Ed., 186; page Flanagan v. Perm. SIMPSON, (dissenting). Spalti, 225 Iowa N.W. Justice City Tuscaloosa, Wright v. Brown that agree Mr. Justice 72, 77; Car *16 Crawford v. provisions of the will violate residuary lisle, 379, 565. 206 Ala. 89 So. perpetuities and law against rule n ofaccumulations. is an “A ‘vested remainder’ estate case, take effect after another estate importance of the great Due to life, tail, is years, so limit- respect opinions, two' for the great but with that, particular if that were analysis of ed give my own like should way expire any pres- to' involved, end questions since neither n exactly time, person, was some certain who ent expresses my views. description of in esse and answered the I, likewise, have become convinced during the continu- remainderman first fallacy in the basic deliverance particular estate, would of the n case, ance sought was a construction where thereupon to the im- n demurrer, become entitled epitomized in the conclusion is irrespective possession, mediate immediately equitable estate vested that the concurrence of collateral contin- n onthe death part of the testator “in the Phrases, gency.” 44 Perm. Words and n publicto be subject al benefitted, to certain Ed., page 200. in payable only from the accrued lowances come,” 467, 843) then, Assuming applying So.2d it Ala. 34 as must be in (250 for perpetuities has rule, that all of life died tiori the rule annuitants n satisfied. if fallacy such a statement immediately testator —or even n part manifest, today of they since some principle granting, argu- even died —and beneficiary always public supposed of a public endo, was n charitable owner, not be trust, vesting it would equitable otherwise could be there no v. support following Detar, 384, 42; the conclu P. cases 123 Kan. 255 Salva- 1. opinion. foregoing Army Topeka Watts, in the v. sions stated tion 130 Kan. Perpetuities. 764; 714, P. v. Lovelace Marion In- 288 Barb., 324; Yates, N.Y., 271, stitute, 381; 215 Ala. 110 v. 9 So. Craw- Yates 584; Carlisle, 379, Albertson, N.Y. Na Ala. v. 206 v. 34 ford 89 So. Bascom Savarika, Lyons Bradley, 505, 565; v. v. 167 Bank 53 tional Greece 571, Hall, 244; Fosdick, 649; Allen, Easton v. Fosdick So. So. v. 148 6 Miss. 216; 397, Mass., Holmes 154 N.E. v. 41. Ill. 323 461, 106, Welch, Mass. N.E.2d Accumulations. 314 49 City N.J.Eq. 896; Green, 345, of Columbia v. v. 77 Hewitt 157 A.L.R. Monteith, 77 A. 262, 727; 10); (Headnote Pearce, 137 S.E. Pearce v. 139 S.C. 25 199 Campbell, 952; Henderson Strathden Ala. Lord Hen In re Archdall, (Brit.); derson, Chancery 353; Boyn Muir Hoyt, Denio, Malmquist N.Y., (B. R.C.) 10 B.R.C. ton v. benefitted,” public Many in that “to be other sustentive authorities be could particular cited, class—the unborn but Hall, since see also Easton v. 323 Ill. twenty years after testator’s Tift, school children 154 N.E. and In re 110 Misc. now in exist- death —were not and not 624, 180 N.Y.S. 884. would, therefore, right be no- ence. There many There are contingent features of “irrespective possession to the immediate precedent this will not vesting to the collateral con- the concurrence execution of the trust. These tingency,” quote from last above. are conditions vesting of the bene- many years be gap There would a definite ownership. ficial The testator so called day might die between the the annuitants them. To mention (1) some: The asso- twenty-year elapse must might twenty- ciation formed within anything under the before at all can be done years January one it equit- gift. will toward the twenty years, cannot formed before present laying able aside for the estate — require the testator did not that it must be contingent discussion the various fea- twenty years within after the death. formed in the will— n specifically tures conditioned possible (2) It is that no one will donate vested, could so must therefore free lot twenty- encumbrances within contingent. years (or ever) one one cent of the above, As it be especially observed should gift (annual earned) income as and when vesting noticed that until is due all conditions are met and a public (as estate in the satisfies the (This schoolhouse built. cannot be brushed erroneously appeal), held on the first aside as a mere “detail in administration.”) apply saying the same as rule does not (3) The three-mill might tax not be levied part of trusts, to charitable because some anywhere county when the came time always benefitted pass buildings to be erected. *17 op- subject trusts. The on the does law not (4) Title to the land on which the buildings Gray, Against that erate to result. Rule are to be situated shall be in the State and 592-597, Ed., pp. Perpetuities, 570- 4th §§ no court could accept force the State to 365, 605, p. Trusts, 580; Scott on § § and use property the the for testator’s p. 1967. purposes twenty-one within years from the death or at precedent time —hence a to say, futurity As seems be I to annexed contingency which ignored cannot with- be the and can rational- gift substance the application out the cy of the chancellor’s principle ize between the no distinction in pres power. the con- will in instant case and wills the cited, many as cases such Muir v. strued in expressions in the will (expira- “at” Archdall, (an English 10 B.R.C. 559 [Aus- twenty years tion of my death); cy pres judicial both case with full tralian] (all bequests “after” paid,, etc.) have been prerogative), holding gift a St. that to (cause “shall” an association) formed they “when should Cathedral Andrew’s (any buildings and “before” such are erect- a build” too remote and violation of the was ed) making words the prece- conditions rule, congregation part was yet there the a dent vesting. benefitted; Malmquist v. public to-be “ 'It is a well settled rule of construc- 42, Detar, 384, Kan. 255 P. devise di- 123 tion, gift that a legacy “at,” aof or hospital pay to- the first recting trustees to “when,” or “after” given oc- event rule, yet the the town organized in violated curs, only upon vests the happening of was the public in that town there the ** * the event. Where the time' is benefitted; Bank of American Nat. Cam- annexed, payment merely, the 286, N.J.Eq. Morgenweck, 114 168 den v. itself, does, but to the gift legacy pay 598, son life trustees A. not vest till the arrives.’ How- one, support hos- widow, to- he left Ex’r, Green, ell, Adm’r, 31 of the com-

pital; there the inhabitants N.J.L. County Clark v. 570.” Union benefitted, yet Trust public munity were 221, N.J.Eq. Co., 365, 12 was violated. 127 A.2d holding was 368. that “ *' * * by change conditions If be disclosed should construe we ‘after,’ circumstances; not include this does ‘within’ and away the terms trust power to alter the terms changing go might far how ” * the rule when operation In re or avert a will ? the terms contingent or to indefinite Estate, bequest 130 Kan. P. White’s limit- The doctrine is group. uncertain 764, 766. varying of administration the terms ed Foster, Phinizy Ala. also See pre- what is handling fund from 836. they provided in will if have or cisely Therefore, he conceding the in- impractical impossible shall become bene- eventual owner of the tended as the up, exactly as set in order to observance interest, interest vest- still ficial object for which secure conditions, contingent ed, subject to hut Berry, Thurlow v. created. they possibility might oc- So.2d twenty-one year period, as within cur equi “this doctrine of And we opinion. in Judge out Brown’s pointed applies to (approximation) table deviation will, the scheme devised I read the As trusts.” Thur private well a's charitable fund was exclusive the use Berry, So.2d low v. . vesting of and therefore in- other scheme 526, 533 was conditioned on effectuation terest cy pres, not judicial But doctrine is scheme and that scheme alone. To exer- equity court to only cy pres, authorizes adopt could done another power cise its over charitable trusts perverting intention of the without private could not exercise over trusts testator. apply bequest, though it be to an even only annual in- the future group. certain uncertain or unascertainable years come of to a non-existent future they cases, As I when understand might many association on conditions judicial speak cy pres they refer never These conditions cannot occur. pres. England dis- There were two approximation wiped used first, cy pres; tinct kinds of that exer- cy pres. substitute manual,” “sign cised king under his Mr. Foster in asserts: Justice power purpose supply an unlimited ju- call our other courts “In cases what indefinite, purpose (cid:127)if were cy pres, equitable approxi- we call dicial *18 property cases the of a devise of “to Lord” Institute, v. 215 mation. Lovelace Marion any where given it would be church to Pearson, Ala. 110 Williams v. designated by king. preroga- the That is 299,” seemingly and then uses au- cy pres. tive cy pres thorities from the states to sustain operation of the trust avert the the and The courts of the United States have perpetuities. am most earn- I power (pre- never even considered such estly conclusion of at variance this rogative cy them, pres) vested in but as respected and associate. learned they have discussed and the differed on have n I pres always pres cy cy cy power judicial pres understood that — —exercised by So, equitable approximation England. the are distinct chancellor of in this doctrines, country, speak generally diverse and think the cases when cases the jurisdictions recognize cy applying pres, in all Ala- of so it. courts have no judicial cy pres prerogative cy pres bama has never sanctioned reference to the —the statutory by provision), (except king’s power sign recent but under his to manual—but necessary powers formerly branch of as a natural and chan- the exercised chan- jurisdiction England. over charitable trusts to cery cellors of The courts of some a circumstance power trust from which states held that this relieve was inherent endangers charity, possessed imperils or the means and employed them and thus prescribed judicial its English cy pres or details administration the doctrine of carry may so molded out the based wishes their decisions it. Massachu- pres an exigency cy of the settlor as meet which setts is the leading state. Notable

257 specified will, apply in the jurisdiction are the fund among the cases from charity testator, Bent leading Brigham Peter intended ones of v. C.C., Hospital, (arising Brigham apply court will then it to F. some and in such cases pres in consultation as method of And no other than charitable but the of cases in supplied.) cy pres, in such a stated setts Mr. reason, complish substantially the same result.” N.E. [187 These cases were cited and considered Massachusetts) Codman fail, Justice Mass. here considered. doctrine, is used Supreme [134 corporation, it should be court it will charity administering the jurisdictions F. Foster’s Codman would would Brigham, Court 525] 72 N.E. provide Am.St.Rep. 394, only, if the save authority Brigham : “And impossible apply opinion. stated: case, provide But take, legatees 1009.] where another mode charitable trust. they companion the doctrine would not Mass. but mode federal case “If, In some other to establish sustain such judicial cy Massachu (Emphasis can take.” applying cited in pointed typical to ac cases, case fail, courts. ministered in power, supplied.) chancery doctrine and excepted, court And in of cases ized and known as above If lapsed legacies should death, not exist at the time paid other “The carry the societies or possible. bequest will, charity or cannot now be be considered and Williams power following just out indefinite chancery, (19 substantially our law.” ^[2] does not mentioned is not the societies their as law exercised * Ala. nearly * But, language: bequests either Pearson, society 830.) authorized English prerogative power ** charities, ^[1] belong charities analogous by the English fotmd, organ- disposed ” stated, two classes specified (Emphasis should be testator’s them societies judicial cy-pres to our agents. as ad- being to it did Neither nor other Massachusetts Thus, crystal that we have clear jurisdictions cy pres applying would cy pres judicial never sanctioned as used pretended preroga- the king’s states, exercise equit- other and what we call some tive, adopted specifically chancel- approximation able is not what states cy power appointment ap- pres, lor’s cy pres. call plicable only in Ala- charitable trusts. The opinion of Mr. Foster seems Justice bama courts have never sanctioned such a cite this Williams Pearson case and, (not doctrine until the recent statute the Marion Institute case to sustain pertinent) pres ju- here in other used what conclusion that other courts call juris- of in risdictions was unheard our own *19 but, cy approximation, we call pres judicial diction. This distinction is fundamental to them, just I read these hold the cases to question a correct decision of the involved. contrary. the In Marion Institute case cy adopting pres, The there- authorities Sayre particular Mr. took notice Justice fore, repudiated by are based law our appeal equity permis- while that the many own court. There states property mortgage against sion the judicial cy pres, have held to this but Ala- specific directions of the settlor was thought bama, years than ago, more one hundred equitable ap- to be under “the doctrine of joined the of states group repudiating proximation in of virtue which the court cy pres, is, judicial cy pres. It is chancery jurisdiction merely of exercises specifically so stated in Carter et al. v. vary the details of in administration Adm’r, Balfour’s in the fol- preserve the carry order to trust and language: lowing general purpose (215 donor” “ * ** yet not recognize 382), do Ala. 110 So. the real ‘cypres,’ which, purpose doctrine of application in sub- to “call for an in is, you society stance cy pres,” if cannot find the some sort the doctrine of explanation good is clearly- following a done, thus could not he held judicial application cy pres by the doctrines. the two distinguishing between doctrine, holding then, jurisdictions to that il Sayre Judge opinion of apposite distinctly is to the case in hand: difference, that “the states lucidating the “ said approximation is doctrine * * * gift may be saved [a] con reality judicial principle of a to be pres application cy doctrine. arbitrary resulting, not from struction “A common situation that which is disregard of the donor’s power exercised property where a testator leaves arises finding judicial based on a wishes, corporation for a to or in trust conditions.” applied to new his intention death for organized certain points specifically Pearson v. Williams And purposes. bequest charitable cy pres nor judicial neither out that corporation organ- must be if valid English power exercised prerogative ized within of the rule has carry -charities out indefinite king perpetuities. Even if cor- jurisprudence own applied in our ever may not be poration organized within administering left were with. we and that period, bequest is nevertheless two doctrines. these charities exclusive general has in- if the testator valid supra. also Trustees of See Quotation, property tention to devote Caldwell, University Cumberland specified purposes. charitable In such Banks, 846; King 84 So. Ala. gift case there is an immediate Williamson, 871; Crim v. subject preced- to no condition supra. ; although particular mode ent and doctrine as Mississippi the same holds subject application is such a con- judi- principle of against the Alabama and dition, gift. that does not invalidate the National cy pres. the case In cial gen- cy pres Under the doctrine of Savarika, Miss. Bank Greece eral charitable intention of the testator exposition 649, 654, good effectuated, though even doctrines, with the two distinction between speci- particular application method of case in quotation Marion Institute from the indeed, If, him fied should fail. it is explanation thereof, where appears testator an intention that manifested stated: property applied to char- should be “ ‘ * * * cy practice pres is not purposes only itable in the method equitable doc him, confused with the specified only through the or- approximation which has corporation, trine ganization up judicial grown rejected, administration pres cy doctrine n (as judicial crea distinguished interpolate bequest this is [We fails. cy trusts. The ec pres tion) of the rule Alabama where thing, pres rejected applicable is one rule of clesiastical trust at approxima equitable rule of Where the is valid the court bar.] pur distinctly Their another. its tion is will exercise discretion as to- the entirely application are pose, administering mode If and their it. the cor- Alabama poration within a different. As formed reasonable Institute et (Lovelace time, v. Marion the court will direct the cor- *20 381), “The al., poration property. 215 receive the If it any cy pres appears corporation to this case is not that the will not appeal in court, equitable time, but to the within a reasonable power formed in virtue court will not until it is wait formed approximation, doctrine n butwill direct the Chancery application exercises which vary property merely details’ to some manner to the jurisdiction preserve administration, purposes.” (Em- designated to order charitable phasis Trusts, trust, carry general supplied.) out the on Scott § ’” 401.8,pp. 2139- 2140. of the donor.” purpose

259 prescribed period per by there will the rule section of In the same Scott petuities.” example Will, very pertinent App.Div. In re Potts’ 205 be found a pres principle 880, 883; cy Attorney 199 N.Y.S. Gen application of the Gill, judicial 2 using 369; will fail even eral v. In re the trust P.Wms. when Johnson’s L.R.Eq. 716; Bucknam, 2 cy Trusts, Professor Merritt pres. It is thus stated 253; Baptist 77 Me. Merrill v. American Scott: Missionary Union, c£ N.H. A. * gift contingent If the is L.R.A., N.S., 1143, Am.St.Rep. upon the establishment of the institu Perry Ann.Cas. Trusts(6th Ed.), tion, contingency is it fails since If, however, the too remote. testator “ * * * gift if a is made in the first general charitable inten had a more individual, instance an to and then tion, if the establishment of the institu over, upon may contingency a an tion was not essential of his happen prescribed limit, not within the scheme, is an immediate and un there charity, charity gift to a is -charity, gift gift and the conditional void, charity not because the could not apply fail the court mill will not period, take the remote but because Similarly prop money cy pres. where perpetuity it tends to create a erty given in trust to establish a is taker, by individual who is the first per charitable institution when third making the estate inalienable him a give sons shall site the institution period beyond law. allowed sup or shall contribute funds for its ” * ** Allen, Odell Odell, port, the is valid it is not gift con Mass., 1, 7. tingent upon giving such a site making such contributions. or the But, charity, preceded “A gift to a case, given In a if the site is not individual, generally a gift an is held made, the court or the contributions valid, although greater than apply cy pres.” can doctrine prescribed by against perpetuities (Emphasis supplied.) may elapse empowered before the taker Will, gift.” receive the In re Potts’ application judicial cy is the pres Thus supra, 199 N.Y.S. 884. That applied present even if case points page out on 885 the following: that the would indicate trust could not be executory “An charity, gift to a with- obliquities relieved from the which beset precedent gift private persons, out a it, since not donation of sites upon the organization corporation of a contingent, but also establishment of the -charity, up- execute the is held valid prerequisite foundation is to the scheme theory on the general chari- may period. and it formed within the purpose table t-he im- donor being If is also authority, clear and mediate, a equity, having court of Gray matter, others, Mr. and all power the beginning to execute cy speaking pres judicial cy meant way, in its own notwith- pres prerogative pres, equal- and not standing the fact the donor’s ly clear is to- me that the doc- delay, method regard cause approximation trine of authorizing the immediate, the gift involving neither varying of of administering the details postponement suspension. nor This changed to meet carry- conditions in theory explains why a gift similar ing out the settlor’s intention cannot be said made to a gift private per- follow cy pres same and cannot be sons held be invalid. In that save present used to the trust in the case. case existence of an intent to make further, To rationalize “the law char- gift conclusively immediate de- protect itable uses does nied the act of the donor in inter- purpose, made take posing prior effect after gift. The theory is *21 gift individual, a upon to an a explained condition by Gray Professor as fol- necessarily not to be fulfilled within the lows : 260 “ pauper the education tuition of all however, the and court, can see an ‘If the beats, poor children of said whose and gift to an unconditional make intention support are parents not able to them.” very is keen- the charity (and to intention), this discover sighted to exigencies The of that decision were im- regarded as gift will be then the scope completely without the rule the subject condition mediate, to not perpetuities, nor was the rule con- against not within therefore precedent, and gift the remainder was sidered. perpetuities. against scope the rule (2) (1) existing to an association and to by pointed the testator The mode recognized legal two then beneficiaries in prefer- though way, only one county. subdivisions essence charitable way, carrying out the able “it not holding the court’s was that cannot, regard it purpose; and validity necessary to their that there should intention, be general capable grantee taking devisee or be ”* way, it will be car- out in

carried by holding “if law because ’ * * * Gray, Per- cy pres. ried out object of a charitable donation can (Emphasis petuities (3d Ed.) 607.” ascertained, § want of a trustee will supplied.) by appointment by supplied a court of presents at equity.” case bar an en- Marsh, 63 Conn. also Woodruff v. See tirely Here 346; different status. the education- 849, Am.St.Rep. 125, 846, 26 A. 38 quite “definitely described," al association is Allen, 163, 171, 2 107 U.S. S. Russell v. pe- it Trusts, might not be formed within the 397; but 327, Perry 27 L.Ed. Ct. by present riod allowed rule. In Ed., 6th § gift case the of future of future income Pearson, 38 do think Williams I not manifestly years contingent & Birmingham Trust 299; Ala. Johns vested and it vest might since so with- Co., Ala. So. Savings twenty-one years, within the falls So. Weaver, Ala. Tarver v. ban of the rule. appellees, upon by 209, principally relied True, did Pearson case Williams v. contrary. precedents to provide for the administration of the fund Pearson, pro- testator In Williams by association, “by when received com- daughter the death of his vided appointed by missioners said associa- unquestionably (an issue event without tion,” merely this was administra- perpe- within the duty performed subsequent tive to be into be converted tuities), estate should association, vesting gift two into money equally “to be divided namely, after the association received I of said loan parts; one half money. right existing entity But the Association, received Rest to be Pilgrim’s enjoy (association) gift to receive and association, loaned out said dependent upon any was not condition. as- appointed said commissioners And, regards gift county to the two cent, per annum, sociation, per eight at beats, poor for the beats children in said equally annual- divided said interest etc., again existing was hére to an having charge ly the ministers between body, holding the court this that “When association; and the other in said churches [July will executed a beat 1848] Mill and Coohran’s half loan Vienna legal state was a well-known sub- is, that three commis- Beat; county, of a corresponding division general vote of elected sioners be townships or towns in some other States.” money, beats, their to receive the two In each instance there was a vesting security, in dou- good and sufficient giving entity remainder in a definite had receive, they may amount ble the life estate fallen in at time there was county court of Pickens judge beneficiary take without contingency loan commissioners to County; and said conditions. That our case. cent, interest, per money, eight out said v. Birmingham In annual- Trust be collected & Sav- said interest to Johns Co., ings applied by commissioners ly, *22 trust, only contingency vesting im- immediate to a trustee for application existing income to' exist- was selection of mediate of the associa- year’s organizations, commencing tion to take the first income. The ing charitable year trust was limited that end the first trust. so the trustee must first, year, perform beginning year, Each with the condition within the first thus vesting was directed to “select an associa- beneficial interest. trustee tion, organization, corporation, or society, Weaver, Tarver 221 Ala. maintaining an institu- existing 209, 211, any question does consider re- Ala., county, tion in which cares Jefferson present lated to those in the case. In that for, supports, educates, maintains and bequests, upon case all the death of two orphan needed, children, indigent where persons (an living rule) event within * * * persons, needy people, old to existing organisa- went direct injured, helpless miners, indigent, or their application tions immediate to chari- children, one, any, them, wives all of purposes any table without conditions or Alabama, pay in the state of and shall prescribed were contingencies. There no association, organization, society or future events conditions. corporation so selected it the income said: year estate, from the derived each ”* suggestion * “The * the bill provided etc. It was further bequest League to the Dallas Art must that: league fail because said is nonexistent “ * * * Birmingham The said is of little force in the face of the Savings Company, Trust & said respondent record that it was made a trustee, right change shall have the bill, to the has proc- been served with beneficiary selected so it as ess, pro and a decree has confesso at any year, above directed the end of it, ap- rendered it has beneficiary may but same se- peared by counsel and made motion to year lected year, from and a bene- set this decree aside.” selected, ficiary, zvhen once shall re- main until another beneficiary Accumulation. designated is selected and place its provisions It also seems clear that trustee; (Emphasis Item of the will which Four commands supplied.) that the of income be annual excess made When the testator died there were such permanent permanent a addition charitable organizations existing in Jeffer- corpus, spent purpose, never to be County. son Under the terms of this will statute, only violates our own but the equitable interest was vest in one of law, against common accumulations. existing organizations at end Berry, 631, 25 In Thurlow v. year, period first well within the following So.2d observation question There was no rule. of remote- approval had the unanimous the court: only ness condition was the selec- agree seem to “Authorities that after the required tion the trustee which it was year 146, supra limit within, ten under Title [of § perform year. one expired, Code], has the accumulations Once interest vested ordinarily permanent cannot made ad beneficiary, association selected as the corpus.” dition to1the remained vested that association until change beneficiary divested The excess thus commanded to be added charity. to another Such corpus pay- cannot be used change (without charitable beneficiaries bequests ing of the individual to collateral lapse excep- time between them) kin, stipulates since the will pay- for their against perpetuities. tion the rule year’s income, ment each Birmingham year the income of While Trust one is insufficient Johns Savings pay full, bequests Case & Co. the interest did not all in them all fail lapse year. the time of the creation of the for that vest income so *23 262 “Item Five prior years cannot be used.

accumulated be used income cannot The accumulated has been ful- “After said association purpose but must remain .forever estate, formed,, ly corpus of the corpus. limi- This part a inviolate what been to the has added including tation, therefore, that all excess requiring death, corpus be held since shall * * corpus * permanently to the income be added intact the trustee n isa trust ac- purpose of of estate for “Item Six only. cumulation “ * watchword shall be The several fact the will creates from the nothing but the income each independent of each other and trusts year year, from must be used estate itself, law- complete some of which are corpus year each added to but sums unlawful, may and which and others ful for.” should be striven other, separated each is no im- from (cid:127)be quotations foregoing only do the the valid and avoid- sustaining Not pediment accumulate, intent but are show an may stand, legal ones invalid. ing the for accumulation and the specific directions off illegal be cut and de- while the provision is manifest that said conclusion Bradley, Lyons invalid. clared (cid:127) under Four void our statute in Item 505, So. 244. 53 Pearce, accumulations. Pearce v. against up a (1) trusts set were: several 952; Campbell v. 74 So. Ala. 199 sep- payable from a widow, for the trust Weakley, Ala. 25 Hender- trust for the fund; a (2) arate tax-free Henderson, 353. Ala. 97 So. son v. sister, similarly; payable (3) a Analogous rationale also establishes that $8,600 exceeding annual- collateral kin limiting the provisions in the will .so remaining trust of ly; main and (4) the particular expenditures income income, requiring the entire balance year, income covering all unused annual year’s be added irre- excess that each part of in- into become a the trust corpus. irretrievably to the vocably and corpus, violates the common law violate over trust contains last mentioned This During each against rule accumulations. and the ac- ninety percent of the estate forever, death, year from the testator’s $137,- income, than now more cumulated all commanded to add excess trustee is year, be used a can never irrevocably corpus. annual income part purpose, must remain forever against common law rule This violates the corpus. the inviolate accumulations. testator no that the doubt can There accumulation, touching An unlawful as ac- be for trust should intended perpetuities, the common law quote only. need We cumulation pre withholding, “(I) is defined following provisions of will: prohibition present of the venting en or rent, joyment present of such expending or in- corpus the estate should “The interest; income, adding (2) or provision crease, especially with rent, income, gathered interest so mature, bequests any of the when prin together of time to the over beneficiary death from either capital.” cipal fund or In re of a of such bene- otherwise, the amount n Estate, Misc. N.Y. Hartman’s bequest remain and be- shall ficiary’s S. corpus of the part come court, term, speaking bequests have Our own year when each Henderson, expenses in Henderson with taxes all stated paid and “ meaning ‘The 353: which the satisfied, re- that whatever have been has in course of time particu- “accumulation” of that word income mains * * * in our law is stated come to entered year shall lar adding of “The the interest or follows: subject the estate corpus of principal, pursuant fund to income as the thereafter treatment same provisions pre- of a deed corpus the estate. original

263" *24 ” ’ ” *** void, expended transgressing venting being its common- law limits perpetuity. of a 97 So. 361. Thus a- direction beyond accumulate the-' following explanation of observe the We statute, time allowed but with- against the rule accumula- operation in the time allowed the common authorities: following tions from law, good will be for the actual time. explicit provision fitting “The most statute, allowed only and void description of accumulation] [an excess; for the abut direction to accu- is directed or when a trustee exists mulate, beyond the rule of common empowered reinvest the income against perpetuity, law wholly is void pro- as and received. Such when notwithstanding the statute. Conse- may apply to the whole income vision quently, England in a trust for accu- trust, specified or to a fraction mulation verge almost year, during of the income each outside of the limit of perpetuity, specified sum income yet only be void for the excess year, during ex- each to income in beyond the time established payments authorized of current cess statute; but if a trust for accumula- ” * * * Restatement, therefrom tion transcends slightest degree IV, Property, p. Vol. 2563. § boundary perpetuity, of a it n i* * * an oth- executor or ‘When void, wholly and will fail without re- rents, er trustee masses the dividends gard to the actual course of events.” receives, which he income Perry Trusts, Vol. 395. § it, capital, it makes a treats invests provision “A for accumulation capital of the income derived new which violates against the Rule Per- on, therefrom, that, invests and so he petuities is wholly void; pro- but a accumulate the fund. And is said to vision which good so far as the capital and income accrued consti- Rule against Perpetuities concerned, ’ ”* * * Hussey accumulations tute Act, violates the Thellusson is void Ky. Sargent, 116 75 S.W. Thus, for the excess. if there Black, Dictionary. quoting Law abe direction in a will to accumulate it “In case where is made the during A., income the life can princi- duty treat as of the trustee to twenty-one accumulated for years property, pal the income of the trust Gray, the testator’s death.” The ordina- distributing instead Rule Against Perpetuities, 687. § course, ry there is an accumulation “But the Thellusson Act does * valid, tamo, render pro provision “ * * * These trusts accumu- accumulation which violates the always regarded against with Perpetuities; lation Rule pro- law, disfavor courts vision is bad altogether.” Gray, su- day pra, early time of limited the § correspond with accumulations provisions for accumulation are perpetuities, against period of the rule clearly against the letter spirit -and of this recently statutes have been and more common law rule. fur-, jurisdictions still enacted some Finally, I think costs should be taxed restricting the exercise of ther Presumably, the estate. theory respect right, to both the benefici- court, sought of the trial to- be sus- of accumulation.” aries and here, is that because in tained (2d Eng.Encyc. of Law 22 Am. & plaintiffs, appellants here, the court the Ed.), p. 728. position, did not sustain their the court “ * ** said, It also should exercise its discretion in taxing restraining force, and case, is one of them the costs. however, act validity simple. trusts for ac- give is not so bill cannot for a con- cumulation, which are themselves struction tihe will and a declaration as 264= bequests payment riod for provisions there- validity certain in the will has not questions neces- the individuals named vital case raised

of. The expired. is not and sary the estate of solution on behalf of not be interested should counsel to entertain It is unusual litigant particular under a sit- party one every member of the the idea that *25 prevailing, were where there as here uation every in should write own views case. his will, provisions and dec- of the a doubtful course, practice that is not the this Of Evi- concerned. would benefit all laration appellate The other court. nature trustee, dently, the executor and neither permit the work volume of does not and heirs, invoke the would nor others of each case. But the brief such treatment declara- jurisdiction of the court the appellants support filed counsel for in I certainly should have. tion. Some one application for rehearing of their therefore, bear the think, estate should respects. unusual one in other I will not Costs were proceeding. o.f the entire costs attempt it to characterize or comment fur- the construction against the estate in taxed brief, copies of the ther on tenor as Berry, (Thurlow will of the Woodward widely among been circulated have minority of the trustees supra), where bench and bar. contest resolved bill and filed general Because of tenor minority. instant case against fact that it has been so cir- brief and the as for the bene- regarded even more culated, respond appli- I decided to estate. of the entire fit long rehearing during cation for and considerations, of these On the basis application in has been therefore, respectfully dissent. I here, pending I worked it from have on BROWN, say that authorized I am my time to on the time other duties foregoing. J., concurs permit. court would Rehearing. On appeal, upheld On we the valid the first ity provisions will there of the trust of the PER CURIAM. Troy Bank Henderson under attack. Co., Ala. 34 So.2d is & Trust rendered heretofore judgment All of the concurred. which have the costs modified so that all Justices Troy against in be taxed this case accrued ap- original On the submission Company, as trustee. Bank & Trust peal, my the so- based conclusion I not violate the rule called trust did school GOODWYN, except Justices, All opinion perpetuities writ- on to' modification. J., agree sitting, appeal. on the first ten modified, application for rehear- As early In the case of Williams v. Pear- ing overruled. WALKER, son, writing Justice questions court, observed: "Few for the FOSTER, LIVINGSTON, J., and C. (have subject of more laborious been the STAKELY, JJ., and concur. LAWSON given greater rise con- investigation, opinion, than that which relates flict of SIMPSON, JJ., and dissent BROWN jurisdiction origin peculiar of the rehearing granted. should be and think the respect equity to charities.” With years, passing growth of decisional LAWSON, his J., expresses reasons for subject, legislative law enact- and concurring result follows: states, aspects some of the all ments in complex problem have become more and LAWSON, Justice. juris- difficult when cases application rehearing in this considered. dictions are long pending for time. has cause and measure, following the trail responsible for After blazed large I am In a parts practically by counsel to all delay. injury could result the charted No world, English-speaking rc delay, pe- since the because of the parties of; Pear- case will admit to- in Williams v. the nature of the turned and, son, supra, pronouncement my of cer- on final settlement of for the is, which, opinion, my court, bear principles my my tain executors with will presented heavily questions my Bunting take on some friend Vincent Sally guardianship my daughter, this case. prop Taylor, Ann and of her the care opinion in quoting from the Before ; erty E. guardian that her and case, I think it advisable to^state the facts Joel Pearson, wives, charge their take arose, litigation out of which that well my is, daughter; and presented for questions as the decision. Pearson’s, she remain at E. Joel Taylor February, Zealous died daughters, sent school his having published executed last will daughters, be treated as his own testament, day was dated 8th paid right for him to'be whatever is *26 July, duly probate admitted to and aid; board, clothing, her medical and By first clause of after his death. Pearson take one of her beds Mrs. will, the testator directed his debts be bedclothes, half her and and Mrs. Bunt second, third, paid. fourth and The fifth half, ing my take the other etc. It is specific gave legacies. several clauses good will her to for education as and seventh clauses were in sixth the fol- of; property her will admit and that words: lowing guardian negroes, pub her her hire out my “Item sixth. And the residue of licly privately, may proper, he see property, personal, real will 'both and I and for them not to be hired out on bequeath my daughter, and beloved river, prair west side of nor Sally Taylor, begotten Ann heir and any where, ies as I good want care tak body; consisting or heirs of her of be- them, clothed, en of and want them well tween and six seven hundred acres of shod, good procured and bedclothes land, adjoining tract on which I Also1, lands, orchards, them. my I want live, besides the dower in Matthew grove of, and good taken care as I want land, Taylor’s together with thirteen my all the above t0' be beneficial to negroes, namely, (specifying their daughter when she is in a situation names) together their increase. It receive them. And if should die she will, my my that the balance of estate without a surviving heir or heirs of her sold, months, be on a credit of twelve body, my is, will property that all her proceeds, just and the paying my sold, one, two, shall be on credit debts, my Sally go- daughter, Ann years installments, and three and all her Taylor, beds, except my bed- two' best equally estate to' be divided into' two steads, furniture, my and and all made parts; one half of said estate I loan to bed-covers, my saddle, her mother’s all Pilgrim’s Association, Rest to' re books, trunks and to be ex- by ceived association, said loaned and sale, empt from and to be well taken appointed commissioners to be my care of daughter. cent, association, said per eight at “Item seventh. I do hereby consti per annum, said and interest fi> be appoint and my tute neigh friends and equally annually divided between the bors, Vincent Bunting and E. Joel ministers having charge of churches in Pearson, the my executors of this last association; said and the other half testament; will and will, my and loan to Vienna and Cochran’s Mill they make no return my Beat; is, my and ivill that three com until ready it is settlement, final and missioners be by general elected vote inventory, sales, account of beats, the two to receive the money, account-current estate, re giving good their se sufficient turned at (final the same time settle curity, in double the amount ment), zvhichthey so papers that all the may be receive, together; judge found to the my will, county and it is my executors settle my estate as soon as coiirt Pickens county; and said com money, From said at was dismissed. that decree the to loan out bill missioners cent, complainant, Williams, interest, Dicey appealed and the said Mrs. eight per to this annually, ap court. interest to collected edu said commissioners plied by validity This court upheld the of the be- pauper tuition all cation uses, quests to charitable reversed the beats, par whose poor children appealed decree from so far as it held that support them." not able ents are bequests the charitable embraced not supplied.) (Emphasis property corpus of the devised to the rents, daughter, profits but also all the will Both of executors named undisposed left income thereof her the exe- and took themselves qualified her death. day trust. 30th of the On cution settlement, 1853,Bunting made a final June, shows that it was not denied executor, re- office of resigned his parties appeal that, according Sally guardianship Ann nounced uses, the law of charitable as adminis- Taylor. the same time Pearson At made English chancery, tered court of the- settlement, bond, and partial giving newa bequests executory contained in the seventh qualified qualified as sole executor and also- upheld. would item Sally Taylor. guardian of Ann appellants as to the contention October, 1857, Taylor Sally In Ann died bequests invalidity is set *27 unmarried, intestate, of age and under the opinion following in in the lan- the out twenty-one years. day of On the 11th page Janu- 303: guage, 38 Ala. at ary, 1858, Pearson made a final settlement “ * * * insisted, that the itBut is n ofhis of her the gardianship estate. On court of chan- English authority the of day December, 24th of ad- of letters to chari- cery, regard to donations in Tay- Sally on the of ministration Ann the uses, from as it differs so far table granted Dicey lor were to- Mrs. Williams. trust, of cases in.other exercised power transcript original An examination of the of the statute from either derived is the .shows that Williams was Dicey Mrs. the Elizabeth, 4, known ch. as 43d Taylor, testator, and sister of the Zealous uses,’ belongs charitable ‘statute Sally Taylor. an aunt Ann of the as a branch the chancellor Dicey 28, 1860, Thereafter, April Mrs. on and king; power of prerogative equity bill in the chan- filed a in Williams power prerogative apart that from County against cery court of Pickens clothed, Joel chancellor is with which the Sally guardian of Ann as the E. Pearson independently the statute and deceased, and the executor Taylor, as Elizabeth, jurisdiction deceased, Taylor, wherein com- Zealous bequests chancery, and trusts over sought account and settlement plainant charity, precisely the same as for and acts as executor Pearson’s all of for law- bequests and trusts other over settlement insisting that the guardian, up- purposes, be exercised ful and must no' ad- because was void guardianship principles, and on the same been had ward’s estate ministrator insisted, further that rules. It same bequests to charita- appointed and that the of 43d Elizabeth the statute clause of seventh uses, contained ble so, here; that being force this will, invalid. were testator’s chancery courts are inasmuch our demurrer, prerogatives of held, that with the on clothed chancellor The crown, ju- in- other than bequests were valid and exercise no executory follows, power, Eng- be- dicial it that the property devised and all the cluded uses, Taylor, far Sally Ann lish law charitable so queathed governing profits therefrom re- it differs from be- rents, law income and, death; quests pur- her and trusts for other lawful undisposed of at maining complainant poses, recognized had no cannot be our consequently, that ” * * * courts assert bill. The which she could interest

2,67 supra, observed, appears' following then from the opinion lan- writer of the opinion, guage page Ala. at 305: pages 303-304: at Ala. “ investigation “Our of the cases has * ** propositions can these If us, satisfied of Ameri- that current results, maintained, that the valid- can authorities in favor of the doc- upon depend ity bequests must of these trine, trusts charitable uses bequests and principles applicable to are equity, favored courts general, and trusts in that, independent the statute of Eliz- prevail peculiar doctrines abeth, power, prerogative dona- charitable England regard there original juris- is an and inherent tions, gifts distinguished sustain, diction in those courts to consequently, purposes; account purposes, of their charitable void, bequests had would have which, trusts their but for charitable charitable, purposes their not been feature, would be (Authori- held void. purposes that their fact cited).” ties valid.” does not make them opinion writer of Williams v. proceeds then writer of Pearson, supra, proceeded to state authorities, recognize the conflict rule, what shall call the Alabama jurists pointing many eminent sus- out that pages 306-307: tain the view contended counsel for appellant. cases Among sup- cited as (19 Adm’r “In Carter v. Balfour’s porting that the case of view is Owens v. court, after a 814,) careful Missionary Society, N.Y. 380. subject, gave examination of its just In sanction to the stated. doctrine pointed It is then “another class case, bequests, which were to jurists maintain, English law *28 unincorporated certain charitable so- of charitable not derive origin uses does its cieties, void, upon were the plainly Elizabeth, from the statute the 43d of nor principles applicable ordinary be- to depend upon it; pe- but that at a remote quests cited.) (Authorities and trusts. history English judicial riod in it en- was held, being But it was charitable that grafted upon law, general the common its bequests, give equity a court could of law; being maxims from the derived civil them by effect of its common- virtue that the statute of Elizabeth introduced no judicial powers, law and without claim principle, designed new but was to afford power, to prerogative and without dilatory a new and less establishing mode of invoking the aid of statute of the 43d donations, charitable which were under- decision, A thus Elizabeth. deliberate- by stood to antecedently be valid the laws ly made, upon question a involved in force; that, independently obscurity, so much doubt Elizabeth, apart statute of from the may so much be said on both royal prerogative, ju- there is an inherent sides, we disposed are not to disturb. equity risdiction in establish to and enforce therefore, Without intimating, what charities, grants which, devises and to our would uncontrolled feature, for the charitable would he void.” by any adjudication, former we con- pages 304-305. tent ourselves saying, that it court refused to follow what I This shall regarded must be settled law of call the New York rule. So it -bewell State, this that charitable donations point to observe at this that' I see no oc- so exempted are ap- rules far from early casion to discuss the New York cases plicable trusts, to other that it is not pressed upon by appellants, us counsel for necessary validity to their that there or jurisdictions cases holding should grantee be a or devisee capable like effect. taking by law, or holding or that of I have heretofore shown what the que New there should be a cestui trust so York rule was it and that definitely not fol- described as to enable a court lowed this Pearson, court in Williams v. u-pon to execute equity its district, up- will be principles. legacy under- or Such we

ordinary equity. deduced is doctrine to be a court Nor to be the held stand a objection Carter v. validity case Balfour’s from Adm’r, no appointed that has gift, the other authori- supra, and donor trustee, (Emphasis supplied.) appointed is or that tnistee ties above cited.” incapable legal interest. taking equity of power of a court of That the object charitable donation a validity If uphold of chari- this state ascertained, the want a trus- can bequests kind above described table supplied by appointment tee will be prerogative the so-called not based on is (Authorities cited)” equity. court a cy pres power clearly appears power or the (Emphasis supplied.) language opinion, following from the point At this again 307-308: I wish state that pages Ala. at recognize that in Wil- fully holding perceived, we do not “It will Pearson, supra, is clear the- liams effect English doc- recognize the whole power pres prerogative and the A as in here. of charities force trine powers power, as those are defined adapted portion of it is not considerable chancery opinion, possessed condition, political and has been our courts of this state. rejected England, by our courts. In But the fact remains that charity, given anything is whenever recognized equity that the courts of this charity appointed, is and no —that named, possess power, state or labeled a in- say, declares the testator where bequests carry indefinitely, charity tention favor object, recog- will when an ascertainable objects; any specification of without donor, charity, designated by nized appointed charity or where terms, poor collective as the general power appoint- superstitious, given parish, county clergy- pater patriae, king as ment vests in the men of a particular having denomination through him and is exercised charge specified of churches dis- within So, cited) (Authority chancellor. trict; power, in the exercise of likewise, object definite when object if the of the charitable donation can fails, specified, which or be- ascertained, trustee will want of a impracticable, so fund comes supplied appointment equity *29 be of the charity applied to the intend- cannot court. testator, will, by the the court under ed power was that such Having determined cy-pres, apply it to the doctrine of that such equity a court of and vested in analogous object or of kindred some pres prerogative was or power not the charity. power by the exercised power, the confronted court was chancery, in the two English court of the not bene- question to or as whether just mentioned, not of cases is classes bequests con- charitable ficiaries power, belong does judicial and were so of the will tained in Item Seventh But, (Authorities cited) our courts. power that by the donor designated cy-pres preroga- doctrine opin- point On that exercised. could be carry power out indefinite chari- tive Pearson, supra, reads, in ion Williams being excepted, the law of chari- ties 308: page English ties, as administered substantially chancery, is our court bequests “In con- under both law. sideration, objects of testator’s designated bounty they an that "Accordingly, when are so ascertainable readily found. It is charity, desig- plainly recognised as is object, used, donor, language that general in or col- inferred from nated society poor given ‘Pilgrim’s Rest Association’ is a terms, a lective —as particular a over sec- which extends parish, clergymen or county or having country; the fund is ‘to be denomination tion particular aof equally annually divided between the specified within a churches change of English chancery substantially is charge of churches having ministers be- law. In other our association.’ in said are ‘all named quest, the pow- That prerogative beneficiaries 5. from the aside poor children’ two pauper power, independent cy pres er and the beats, parents ‘whose designated Elizabeth, orig- of the statute of there is an support them.’ When able to inal and inherent the chan- jurisdiction in executed, in was this State beat sustain, cery courts of this state to on ac- legal subdivision of a a well-known purposes, count of their charitable trusts townships county, corresponding which, feature, the charitable but for would other States. It is in some towns or held void. laid clear, principles above upon the jurisdiction power 6. While this is or down, according the ad- also definitely recognized, attempt no is made to cases, that, instances, in both judged give specific define it or it a name. It designation testator’s ob- seems have been considered as a spe- bounty jects sufficiently original jurisdiction of the and inherent bequests cific, are valid. English chancery of the courts. (Emphasis sup- cited)” (Authorities Alabama, 7. In charitable donations are plied.) exempted far applicable so the rules My holding Wil- understanding other necessary trusts that it Pearson, supra,

liams is as follows: their validity grantee should be there 1. Alabama does not follow capable taking devisee or holding and cases from early York cases New law, or que that there should abe cestui jurisdic- other states to the effect that the definitely so described as to enable possessed by tion courts over chancery equity court of to execute the trust is limited trusts ordinary principles. its England is exercised in trusts in over 8. When object, recog- ascertainable when general, chancery the state courts charity, nized as designated donor portion are not endowed with general terms, or collective prerogative power and where the statute legacy upheld will be equity a court of is not in Elizabeth force. this state. Chancery courts in Alabama do not bequest 9. A is valid which is in the possess the so-called prerogative power— n “ * * * following language: and the is, where testator declares his half I loan Vienna and Cochran’s charity indefinitely intention favor of Beat; Mill is, and my will that three com- any specification objects, without missioners elected by general vote of where the is designated beats, the two money, by receive the suspicious, appointment power vests giving good their security, sufficient *30 pater king patriae, which he exer- double the amount they receive, may through cises his chancellor. judge county of the court of Pickens 3. Chancery courts in Alabama do not county; and said commissioners to loan possess power is, the so-called cy pres cent, money, out —that eight per interest, at object charity speci- when a is definite and the said interest to be an- collected fied, impracticable, fails or becomes nually, applied by said commissioners bequest so that applied cannot be to the education pau- tuition of all testator, the charity intended the per poor children beats, of said whose chancery power court has the apply the parents support are not able to them.” bequest to some analogous kindred or ob- language Although 10. used ject charity. was that loaned testator he the money to exception beats, 4. With the of the the beneficiaries prerogative the two were all the power cy pres power poor and the pow- pauper children of the those two beats explained ers are in opinion, parents defined and not support whose were able to the law of charities as administered in the them. although Banks, The bequest King in holding valid Such was (1) that is in his “will” not conflict with the

testator stated principles announced gen- elected a in commissioners Williams v. Pear three grantee beats receive the son. In the case the King the two in eral vote of object charity, so a definite money; that the commissioners deed was a (2) security; school, failed, Methodist sufficient which had give good elected under the rule announced in the commissioners so elected loan Williams v. (3) Péarson, per equity col- our courts not eight possessing cent to be money power, pres property annually, that a court of use of the lected —matters public schools, diverted to the enforce accordance could not in could equity contemplated by a use not the testator. settlors of the “will” of trust. announced in Williams principles were, opin- Pearson, in supra, my in 1862 appeal, written on the first In in 1937when ion, of this state Gov- upheld the law against the school trust we died. Henderson against perpe- that the rule ernor contention . violated, was on the tuities con- following Holifield, In Johnson placed on the structions will: in v. Pear- announced Williams principles beneficiary 1. The of the school reaffirmed, bequest son, supra, but the were is the “Charles Henderson Educational “the ground held invalid on Association,” part public but “the of the possesses none bequest consideration under to be benefited.” use.” of the elements of 2. The estate vested in “the majority holding Jus to be benefited” imme- Williamson, 180 Ala. in tices Crim v. diately upon the death of the testator. not, opinion, in reflect does As going that we show were in error way upon principles laid down will, construing so it is stated in brief Pearson, supra. bequest in Williams v. appellants: the trustees “an gave held be invalid devote the fund to unbridled discretion to “In dealing with the rule against charity,’ objects thus ‘worthy vesting perpetuities every intendment must be power determine who or the sole them indulged against the possibility of vest- objects worthy may what ing is, defeat, uphold, not to —that to in without restriction limitation as the intention of the testator. That dividual, condition, class, location.” why is the reason so many errors are committed in dealing with the rule is not in conflict with the certainly This against perpetuities; because, as Mr. Pearson, supra, in Williams v. holding says Gray preface, ‘the rea- bequest is valid the effect where soning unlike that with which bounty objects of the testator’s so lawyers are most familiar.’ readily designated they found “ object, ascertainable and that when an rec- ‘The rule perpetuities charity, designated by ognized as construction per- but a donor, terms, or collective general command emptory not, law. It is upheld by legacy will be a court like a rule construction, test, more equity. artificial, or less to determine intention. object Its is to intention. There- between cases The distinction the two defeat *31 every provision fore in the will or pointed out SAYRE in the case Justice instrument is to be construed as the Birmingham Savings Trust & v. if Johns exist, rule did not and then to the 535, 835, pro- Co., Ala. 88 205 where the vision so construed the rule is to be in Williams Pear- principles enunciated v. applied.’ remorselessly Gray, only reaffirmed, Section son, supra, were 629.” point SAYRE applied. out Justice majority holding I do not concurred understand it to be the law of Williamson, supra. this state that “in v. dealing Crim with the rule

271 legal must technical all every intendment instruments perpetuities against conveyance vest- possibility of will of estates. Each indulged against be defeat, is, uphold, must stand or fall own facts its ing —that ” * * * In Edwards v. (Emphasis supplied.) testator.” intention 668-672, 666, Bibb, Ala. wherein 43 Henderson, In Henderson v. 210 directly in- perpetuities was against rule 73, 353, 97 So. against wherein rule volved, it said: was perpetuities involved, directly was it was wills, very “In the construction of will said: “It be further noted indulgence in order to is allowed great estates, rules of law favor the vesting the intention of carry sustain and reason that estates should become testator, if intention does not n absoluteat the earliest moment, doubt- * of the law policy violate ful or clauses have obscure been so con- his intent. That' words guage ponement of the estate issue Bibb, issue,’ taker of from the ^[*] “But it is illegal; language death fail living or used limiting testator must perpetuity ifc. would proper legal construction of Thomas because such issue And imports said, word use of the death many he has used to ^[*] this ‘issue,’ too this case under expression generations after ^[*] intended, be ascertained remote Bibb, the first intended illegal words said Thomas without legal ^[*] the lan- indicate devise; intent. might intent ‘male post- ^[*] A.L.R. the intent to and not arise perpetuities 337 Mo. but a rule of two one which will be accorded to the construction which is vested rather strued favors will result’ in In In uphold possible numerous cases we have said the law St. Louis whole as to aid the construction 1266, 604, 621, would defeating the will.’ is not a will postpone it constructions of a Union property, yet such instruments.” than defeat permit 85 S.W.2d mere said: “The rule ” vesting Trust Co. v. other which would conjecture. effect will, which the estate must be clear ‘if there are 569, 578, construction, it, being given ‘preference testament, and that Bassett, 101 Porter Bibb. The law re- given to Duval, 448, In Warren v. 124 200 Conn. quires that the estate intended 804, A. the rule is thus stated: “Where two must vest twen- given Bibb to Porter fairly open, modes of one construction ty-one years year, the fraction of bequest turn a into an illegal post- to cover the birth of sufficient perpetuity following while the other the child, the death of Thom- humous bequest valid, would be the latter mode Bibb, 4 behest invalid. preferred.” must be 271, 267, marg. Kent. Nelson, To like effect see v. 236 Jenson very may “The ‘issue’ have this word 569, 596; 19 N.W.2d Iowa Goodloe’s Trus it meaning, have a general may Goodloe, & 494, tee v. Ky. Adm’r 292 166 may more limited one. It mean chil 836; Harvie, S.W.2d v. 183 Va. Jewett taker, it mean may dren the first 734, 213; Will, 33 In S.E.2d re Olmstead’s Bac.Abr., 6 at his death. living issue 238, 637; 131 Misc. Klingman N.Y.S. ; 147; Ves. 522 3 Ves. & 67. Bouv. B. Gilbert, 545, 682; 90 Kan. 135 P. In re testator used it in either these If Estate, 511; Pa. 91 A. James’ imports, is the duty court so Graham, Bratton v. 146 Miss. construe it. The construction 353; Phelps’ Estate, In re 182 Cal. is much less technical in a will words 17; Taylor Crosson, P. 11 Del.Ch. the use of the same in a than words 375; Burtchaell, A. Closset v. 112 Or. will, im In the such technical deed. 554; Estate, 230 P. In re Peck’s 96 Vt. altogether disregarded, port Reese, A. Reese 190 Md. not used the testator in a were they *32 311, Wills the 58 A.2d 643. technical sense. are least 272 provision pay to the Association does not is another of construction There «require is to a construction that the Association recognized in this state

long beneficiary the the school trust. The presumes that when is of that the law the effect Bryant, 845, dis- case of Thomas 185 Va. make a will undertakes to a testator 487, 257, quoted not cited property, his he did S.E.2d A.L.R. and all of of posing opinion it or in the appeal, intestate on first seems to die intend point. Roberts v. in period directly time. to me in And Wil- during Pearson, 256, Cleveland, supra, language 314. the 222 Ala. So. liams v. used testator by the was ‘‘and the other half I interpreta- rule in the the cardinal But Beat; to Vienna and Mill Cochran’s loan must wills, rules to which all other tion is, my will that three commissioners testa- intention of the bend, the is that aby general elected vote of the two. provided it is consistent prevail, tor shall beats, money, by receive giving the their law. v. O’Con- O’Connell the rules in security, sufficient double good and Each will 81. nell, 72 So. receive, they amount which to the- inquiry, in testator’s presents its own judge county court of Pickens coun- Meglemry, Meglemry v. controls. intention ty ; said loan commissioners said Ala. cent, money, eight interest, per Castleberry Stringer, In annually, said interest to be collected “ en- ‘In said: it applied by said to the edu- commissioners as- so as to construe a will deavoring cation and tuition pauper all the testator, intention of certain the poor beats, parents, children of said whose possible put far as themselves as courts support able to them.” Although,, by taking the testator position in the above, as shown the testator stated he that thought and his modes of consideration loaned money to the two beats and that time surrounding him at circumstances it should be received the commissioners: courts Thus the execution will. elected, hold court did not that family his the condition of will consider the beats or commissioners were the- estate, comparative amounts beneficiaries of the trust. personalty, his affection realty and opinion relations,’ conclusion reached etc.” social legatees, appeal the first written on to the effect that upholding It is brief: “The said beneficiary of the school trust is “the association not pay direction to is, be benefited” may not by possibility existence and which opinion, Perhaps correct. it might have ever, formed, within that the beneficiaries are “the ap- perpetuities, is an the rule County.” children school of Pike I realize plication' cy pres doctrine.” fact that cases from some other states showing will is construed as Ifthe view, are not in accord with this but the As- Henderson Educational the “Charles construction is fully in accord with that the school beneficiary sociation” reached the Virginia court in Thomas trust, statement above agree with the then I Bryant, supra, court in Wil quoted. Pearson, supra. liams v. think should be the will But doI appellants But say that even if the will1 Association, under so construed. subject to the construction that testator will, perform func- is not to terms of intended school children of Pike hospital, college or like to a tions similar County be the beneficiaries school institution. Its functions are eleemosynary trust, estate did not vest in administrative. purely immediately upon them the death of tes (cid:127) tator, as was held written on “gift” used in connec- The word appeal. first school trust. Testator did tion with his, after the Association is provide that formed fact provided testator “pay” to the income of the pay es- the trustee trustee the income of the estate to the time needed. But this time to Association after it tate from is formed is not incon- *33 equit- sistent with the construction that the It was held: beneficiary at able estate vested time “The rule against perpetuities is di- Bryant, of testator’s Thomas v. death. rected of interests vesting supra; Pearson, supra; Williams Curtis v. application at a date and future has no Association, Maryland Baptist v. Union already to interests are which vested. 430, 836, 1516; Md. A.2d A.L.R. Gil- Miller, Wills, Construction of Sec. 322. 303, Gilmore, 197 Ga. 2d more v. 29 S.E. And word ‘vest’ as used in law Bryant, supra, case of Thomas property ‘signifies of the fixation of a fully treated in written present right to the immediate or fu- appeal and quoted first I heretofore enjoyment property’. ture of Safe De- Pearson, supra. at from length Williams posit Sheehan, & Trust v.Co. 169 Md. 93, 107, 179 A. 543. The law fa- Maryland Baptist case of As- Union the early estates, vors of vesting sociation, supra, April, 1939, decided in (cid:127)as a general Courts when legislature Maryland before of had con- there more period than one men- upon pres power equity ferred courts adopt one, tioned the earlier unless state. See Article An- of § this contravenes intent of testa- Maryland pro- of notated Code tor donor as revealed terms visions of in 1945. effective which became of the Miller, instrument. Construc- provisions necessary to of the will Wills, of tion general Sec. 226. The an holding of the understanding principle is ‘any bequest devise or Maryland court follows: are as in esse, favor a person persons in “Fifth, whether hereby persons my I instruct executor individual- put ized or class, in trust all and cash in treated as a bonds confers an may immediately bank which seized and vested I die interest possessed, death testator, although the annual income from the time possession my enjoyment may same be divided equally between brother, Hall, sister, postponed, clearly Charles Laura unless there some Wimbrow, expressed live, long they at desire or some manifest rea- either, the death son for the survivor to en- suspending or deferring joy the Ibid., whole income for the time vesting.’ remain- Sec. 227. life, der his or her time “Maryland Baptist Union Associa-

provision hereinafter devised. not, tion did in accordance with the terms the sixth of testator’s item “Sixth, Maryland give Bap I to the will, raise within twelve months a like tist Association, Union death sum to Orphans’ build an Home in sister, brother and set forth Maryland, argued it is item, bonds preceding that the trust during the money trust, pro left continue accumulation for such time as they vided will raise within twelve to violate the rule. But it is not the months a like amount to build an Or duration of the trust that determines phan’s Home somewhere in the State Miller', whether the will violated. Maryland; they but if do raise Wills, Construction of Sec. Turner equal an amount the amount in Deposit Co., & Safe Trust 148 Md. months, twelve I instruct that this 371, 129 A. 294. be left amount in trust until the income principal provision appears added to the shall make “No the will amount, like doubling princi thus indicate intention pal, time give postpone at which vesting testator was to Maryland Baptist Maryland Baptist Association Union Union As- enjoy absolutely, true, sociation, for the purpose being and this it would Orphan’s building home in the State seem that under the settled rules Maryland.” (176 Md. construction, A.2d to which reference has 1520) made, 121 A.L.R. Association’s

274 the will the Based on their construction of benefits of to receive the right Henderson “Charles gift tes- the was to at the death of the

bequest vested ap- Association,” being postponed Educational counsel tator, enjoyment the pellants life tenants state: during the lives of the develops, during and, the as it to property is devised “Where certainly view This of accumulation. use, first in- upon a the trustee language to- used no the does violence private stance, the benefit of Deposit Safe Cole v. the testator. individuals, upon a remote con- 90, 94, 121 Co., A. 143 Trust Md. & charity, against the Rule tingency for (a) to note also subsection 911. See perfect application, Perpetuities has 990; Tayloe C.J., page 48 trustee; change be though there no Mosher, 443, 451; Buck v. Md. 29 pres recognized, and even where Lantz, 439, 445. 49 Md. applied there is cannot be where prior use.” such a the therefore of “We are Baptist Maryland agree the construction I do not the assuming power places take in regard had to on will Union Association which counsel cor bequest trust. Chancellor was school beneficiary to Hence, principle the rule not think the above holding rect I do application application prevent no to perpetuities quoted had has here to consideration, upon 'bequest vesting equitable because estate under Bryant, time testa su- the same at the death testator. Thomas vested 430, A.2d pra. Md. ( death.” tor’s [176 1522-1523). 840,] A.L.R. equitable against the that the holding As upon immediately the death of title vested Gilmore, supra, the Su- In Gilmore v. in “that testator said, 81: preme Georgia Court of S.E.2d benefited,” have construed be “ my said my wife ‘At the death of County, children of Pike be school etc., *,’ just give estate I say appellants counsel brief: recipients way naming the another ‘public’ be bene- “Who are the in his estate the remainder interest they children fited? Are the school life estate at the termination of age (between of school who will conclusion in the widow. This ages according law) 7 and 16 these a construction of reached when a building at the remote time alone, a consideration but from words equitable might Did the ti- built? presumes law the whole will. ‘The in those on January tle vest children postponement relate that words Hardly. They 1937? were in ex- rather enjoyment of remainder ; they istence and if had been in thereof, vesting than time, by simple existence then vesting of postpone intent they beyond will be well arithmetic manifest. must clear and age building school before a can general rule is that where be built. estate, and particular testator creates pub- of the ulterior “You cannot vest a title goes dispose interest, an event lic. must be someone or expressly, in There some estate, entity capable taking the entire will determine event, oc- title it can vest.” descriptive before words devise, curring in the latter assertion, For answer to this quote T merely to the referring construed as opinion prepared from the for the court the determination period of Mr. SAYRE in Birming- Justice Johns enjoyment under Co., possession Savings ham Trust & post- designed 836: prior gift, and “ * * * Am.Jur., vesting.’ Life pone the court, And by way etc., Remainders, illustration, 109.” Estates, has said that § principles down, parish, laid county above poor given aof *35 that, cases, also according adjudged particular de clergymen of a the instances, in both designation the testator’s churches having charge of nomination objects bounty sufficiently up district, his specified will be within a specific, bequests and that are equity. Williams the valid.” in court of held a it has Pearson, Ala. 299. And v. I have heretofore shown that I do not charitable repeatedly that held a construe will the showing that it was any on account of will not fail testator’s intention that the Association be bene uncertainty ultimate as to the equitable formed before the interest vest. designated ficiaries, properly within a Nor do provisions I think the the as to class, trustee competent if there acquisition upon the land which the thereby render to make a selection buildings school are to be constructed and are to who beneficiaries certain the that such land free of encumbrance bounty provided by trust. enjoy places where buildings are 82; Hadley v. For p. 347, 5 R.C.L. constructed § should be construed as invali- see, supra, 101 S.W. 203 Mo. dating the school trust. The charitable be- Recurring now L.R.A.,N.S., 117. quests considered in Williams v. Pearson trust, we are provisions of this upheld were spite in of the fact that it should that to hold constrained provided testator two commissioners in no wise upheld. This conclusion should be elected beats, from the two who doctrine, cy pres upon depends should money. receive the There no was state. in way obtain does not to force such Likewise, an election. affected it should be do we think there way Nor was require no the execution n Williamson, decision in Crim of the bond which testator stated it his was was an 293. That “will” the commissioners execute. case.” obviously Nor different could it be said certainty the commissioners could lend out the mon- Pearson, again to Williams v. refer I ey at eight per cent interest. approval in supra, cited with Johns Co., supra. Savings & Birmingham Trust appellants Counsel for devote a consid- shown, Taylor executed Zealous As before application erable of their brief on Febru- July, died his support rehearing argument will he of his ary, Under the terms equitable interest in the school trust daugh- estate to his of his left the residue immediately could not vest the death or heirs of her begotten heir ter and testator because interest provided that to such residue body, remainder, .a but is not a springing a sur- die without daughter should therefore, and, use cannot be called vested. body, of her the resi- heir or viving heirs following This assertion based on the and converted into sold due should be placed construction on the will: “The be divided into two money, which should prior might estates terminate at time purposes parts used for individuals, the death but the ter- October, daughter died in indicated. prior mination of the estate would not years six Her death was unmarried. eo instante convert the ulterior estate into early de- father her of her after that present interest.” argue: Counsel “It is was, course, unseen testa- use, mise springing because it limited to be shown, the charitable be- tor. before enjoyed upon As happening en- events be- quests, which was construed as one of tirely independent expiration poor prior pauper and children” “all the interest. possibility There is a ing to of a gap. there certainty In fact is the parents of a beats “whose designated of two gap.” them,” support for the educa- able spe- No of such children. tuition tion very Counsel written a learned But indicated. as be- were children future cific treatise on the law of interests clear, “It is shown, said: have cited eminent text writers on this court the sub- fore properly benefici- tion, it held that the My research was no ject. cite case. Counsel part of ary trust was “the question of the school case where has disclosed no benefited,” or, have in- case expressly considered has been dicated, County, Pike children of at hand. the school similarity the one bearing the time son. ation. doctrine death. sessed inherent power, pres, a liams cise of power the for wishes do not sire stances will liams v. the might not be formed. The tion of charitable the during the a definite as it quire its formation. about which tion’s available to the time when vivor of Baptist Union I cumulation.” must It Yet I However, our equity in this another, which testator, the recognize matters not Maryland in 5 A.2d charity is the under the develops, during the by the right equity courts nonjudicial power, and whether regard assume of the testator Pearson, invalidate Pearson, supra, these of the death power gap power the individual bequest vested equitable equity lives of school 840] permit. This fact remains to receive the benefits the testator the equity courts between the court Association, supra, might or that exercised it be what name enjoyment being case the trust state, power exercised supra, designated charity. Yet fact buildings Justice substituting at the same, approximation or devi- held that the Associa- the life tenants location and termed of Governor not one the that There are matters characterized may carry Curtis nearly be met. explained in Wil- expressed beneficiaries time of testator’s where there was *36 death of the sur- and under is not the at the death of funds Walker court cannot the which I period of ac- contingencies given to this it was Association one original as circum- under postponed possessed Maryland would be by courts construc- Hender- [176 bequest. state in of the exer- cyas think “and, Wil- pos- Md. de- re- the trial court erred in pressed, decree mon law. act port respective with what orate thereon. against accumulations violation of original ter in the written first struction, trust violates ion that trust, striction sel for ^[*] § course rather than to be of a of cumulation gives nearly writing construing has tion of testator was not violated and mediately upon the demise of the settlor of 'Counsel I feel Relative to the contention made In Thurlow v. ‘finding that .-K whom consistently So.2d trust; power to see that the charitable inten- appeal the conclusion finding Title a constructional (cid:127)’ ^[*] appealed as circumstances on appellants rather submission of this I must for under the on trusts for opinion provisions was said 726, 730, that the rule a will to judicious management merely the that my the statute first Code appellants retention of income is in the do is carried out to the letter as statute. properly agree with views court, cases cited from on the than views which he income is Berry, 247 Ala. that the so-called school not feel in that connection ‘accumulated’; appeal prevailing 1940, I do not violate the determine Mr. reached that a court of as it to a provided, preference said: construing on an accumulation against perpetuities will I held in that contend Justice appeal am in impelled prepared existed reversal am the heretofore ‘undisposed permit. accumulation.’ “ therein that there rule ground Justice merits, whether * places vested agreement fully the court by coun that, Simpson, in favor 631, 635, in favor at to' elab opinion was no of the of the on the on the equity com- opin only, Fos- sup- con rule will if I ex- im- re ir- ac- of’ In opinion past on demurrer. It is true that I carefully in the considered I have position taken the appeal light have that a should first written application for not be so construed. But views on that support of the in brief filed point prevailed and do clear to the conclusion not con- I and am rehearing, prevailing of construc- stitute rules rale. applicable that under my opinion, response might not in this met I that I have realize twenty-one during permitted by application rehearing years considered point perpetuities. the established every discussed each detail only possible application. probable How- It is not support of brief in that a gap ever, time and between the death I considerable of the life benefi- have devoted consideration ciaries will occur and contingencies to careful and studied effort may prescribed am met presented, and con- not be questions all I within the time spite rule. to the conclusion interest de- strained Said signed in some other states the testator law what benefit writers, expressed by age eminent text children of school coming into esse dur- majority ing generations, which the future a “springing the conclusions use” vest, ever, reached this case and cannot court have heretofore until all contingencies up with the law this state. set are in accord in the will have been therefore, ap- am, that the contingencies met and such must be certain *37 plication rehearing be overruled. should to occur within the time fixed the rule. indicated, acquiesce in modi- The I immediate corpus above the entire As judgment support the taxation up fication trusts set for the legatees named individual necessarily post- of costs. poned gift for charitable uses. In re Will, App.Div. Pott’s 199 N.Y.S. LIVINGSTON, J., FOSTER and C. Welch, Holmes v. 314 Mass. STAKELY, JJ., concur. N.E.2d 157 A.L.R. 896. In the face of the uniform decisions of STAKELY, JJ., concur FOSTER this repudiating pres doctrine that, opinion, there in their for the reason through past century, said doctrine can- expressed with conflict there is no material honesty justice with applied opinion prepared by either Justice save a bad situation nor is the court author- appeal on the former STAKELY apply ized to that doctrine in the absence of prepared FOSTER on Justice previous legislation enacting the same appeal. save the educational trust. The doctrine of approximation, Ias have BROWN, expresses rea- J., further pointed heretofore out in the foregoing which his dissent is 'based. sons on opinion, applicable is not and rests principles other than pres. the doctrine cyof BROWN, (dissenting). Justice Berry, Thurlow v. 249 Ala. 32 So.2d 526; Id., fallacy (on opin- appeal), in first of the statement 247 Ala. Co., apply Troy Bank & So.2d To cy pres ion in Henderson v. Trust doctrine repudiated 835, 843, long since in Alabama So.2d and non existent at the time of interest the school vested the testator’s death nothing 7, 1937, judicial short at testator’s “in January legislation, death deprives to be benefitted” heirs at law of said tes tator rights of their age process born in without (meaning children school due exposed Berry, law. Thurlow supra. County), is Pike the self evi- undisputed fact that such children were dent complainants, law, as heirs at were esse, unbegotten were and would not within their rights filing the bill to test generation than a being into for more come validity of the will and if valid have it purported gift testator’s death. This am, therefore, construed. interest, postponed undisputedly a future the court costs should be taxed against the twenty years by contingencies more trustee, as was done case, Thurlow up will, pointed supra. set heretofore notes of Alabama. In no associa- sense 51, 514, page 50 and note In those persons beneficiary tion of three cy pres which declare cases is neces trust. The intended tes- trust, sary to sustain it will noted tator is not this association. Such as- analysis proper apply that the court is agency sociation is but an administrative approximation call ing what we (which trust, process detail in the judicial pres), some use —a object securing the for which the trust indiscriminately. words Erskine v. White equipping created, building head, supra; City Philadelphia — school squarely houses. It comes within Heirs, Wright, Pa., Girard’s 45 Pa. principle equitable approximation 470; 25, 84 Codman Brig Am.Dec. equity appoint when a court of , 187 Mass. N.E. ham Am.St.Rep. members to constitute such association Quinn Peoples Trust exactly is not done according to the Co., Savings & 60 N.E. 157 A.L.R.

notes 18 added to the Interests, 508, page section provided Future except it years, than ten supra. Brigham, Codman v. having that effect. provision for sub factor in If is course the vital a. there Of is. vesting substan its expenditures perpetuity income or date of stantial income, prescribed.. payable beyond period legacies postponed tial vesting used accumula an ac is not to be for before the income Within expenditures leg only perpetuity. while such not a It is tion cumulation is they unpaid, provided perpetuity time after- acies remain an unlawful City hide the real intent of the Phila vested. colorable the estate becomes up Heirs, 9, for- set a trust accumulation 45 9 delphia testator to Pa. v. Girard’s pro only. think that when a Pa., 9, trust Wright, We 84 Am.Dec. paid large amounts out of vides for Herman, 191 It is said Reasoner with an accumulation of annual income 642, 653, 654, 280: 134 N.E. Ind. corpus, added it the balance to- is not direction, vests, “Where a charitable exists a trust accumu while that status for accumulation, manage being for Henderson, only. Henderson 210 lation not of essence ment of fund 353; Ramage v. First invalid, not, affect the even if gift, Bank, & Merchants Nat. 249 Farmers Ala. validity many cases. gift,” citing So.2d 706. Ind., page page And on *- ** “Appellees appeal talk former N.E.: gave we what On through the good going ages, we then suf accumulation as and now -consider public until it menace. There ficient becomes a reasons the conclusion that the alarm; question pur no for this be- was not for the occasion here pose equity, so it will no limited accumulation had mena-ce, therefore, not, not be a and so present con that will' effect purpose, charity.” best subserve the main trolled section Title It 47, Code. case, ' in the Herman also 191 Ind. being So that the income page page N.E. that this is. only, appli principle for accumulation liberal, pres doctrine controlled cable to as it existed at the accumulations construction be- will cause courts prevails. Ramage law common First purpose- keen to discover whether the main Bank, supra; Nat. Farmers and Merchants is, and, if it treat testator’s. Henderson, supra. Henderson v. That machinery administration not condi aspect no principle under makes accumula precedent vesting, tions sugges twenty-one period of illegal tions for a management. tions regarding the It also