39 So. 907 | Ala. | 1905
This appeal involves only two questions : One, relating to the effect of the lapse of certain legacies; the other, touching the validity of a charity. The eleventh clause of the will of the testatrix is as follows: “All the balance of the money now on hand, and of which I die possessed, after the payment of my just debts and the legacies mentioned herein, I give and bequeath to Walton McDonald, son of J. N. and Maggie McDonald, of Williamson county, Tennessee. By ‘money’ herein Í mean gold and silver coin and currency, wherever deposite cí. or situated.” Among the legacies were two of $1,000 each to persons who died during the life of the testatrix. The chancellor, in construing the will, held that these legacies fell into the general residuum. This ruling is assigned as error by appellant McDonald.
Of course, the lapse of legacies which are primarily a
The testatrix by the fourteenth clause of her will gave a certain real property and the residue of her estate to three trustees for a charity which was held invalid'by the lower court, and provided an alternative bequest for a different charity “should this (the first) devise fail.” The court held the alternative devise valid, and this ruling is assigned as error. The devise is that “the said trustees shall apply the proceeds (increase of the property) to the maintenance and education of young men preparing for the ministrty of the Cumberland Presbyterian Church, or in any other Protestant church; said young nun to be selectetd by said trustees, or any two of them.” By the next clause - (15) it is provided that a designated family graveyard of four acres, included in the tract of
It is insisted that the testatrix did not intend or declare a permanent charity, but at most only a devotion of the income of the property to the maintenance and education of young men preparing for the ministrtv during the time they could he selected by the named trustees or any two of them. This objection would hardly be insisted on, exce|it for the provision that the persons to be maintained and educated are “to be selected by said trustees, or any two of them.” The argument is that a personal confidence was reposed in the named trustees, and therefore it was necessarily a temporary provision, operating only during the possibility of its exercise, and not existing at all after the death of the trustees. And the case of Fontain v. Ravenel, 17 How. 369, 15 L. Ed. 80, is relied on to support the contention. The provision giving the trustees, or any two of them, power to select the young men preparing for the ministry of the Cumberland Presebyterian Church, or for the ministry of any Protestant church, as recipients of the charity, is a power which would, by the law and without respect to the special provision of the will, appertain to the office of trustee. The property is given to the trustees for the defined charitable trust of applying the income “to the maintenance of young men preparing for the ministry” of the Cumberland Presebyterian Church, or any Protestant church. If all the trustees had died, the trust would not have failed. And the fact that the power of selection was expressly vested in the trustees is immaterial, as it would appertain by implication to the office, whether filed by appointees of the court or by selection of the testatrix. There may be said to be no real interregnum in the office of any trust.
“Public charities indefinite in terms are necessarily limited in their administration by the amount of the foundation (or funds available). Where the founder
We find no error in the decree of the lower court of Avhicli the appellants can complain, and it must be affirmed.