Barnum v. Mayor of Baltimore

62 Md. 275, 1884 Md. LEXIS 90

• Court: Court of Appeals of Maryland
• Decided: June 18, 1884
• Status: Published

Opinion

Alvey, O. J.,

delivered the opinion of the Court.

The bill in this case was filed by Samuel H. Tagart, executor and trustee appointed by the will of Zenus Barnum, deceased, for the purpose of having the rights of parties declared in respect to a large portion of the estate of the deceased, which is claimed by his heirs-at-law and next of kin as against the disposition thereof made by the will. The disposition of the property as made by the will was sustained by the decree of the Court below, and the heirs-at-law and next of kin of the testator have appealed.

The testator died on the 23rd of March, 1882, having made his will in due form, which was soon after his death admitted to probate. He left surviving him, as his only heirs-at-law and next of kin, two brothers and two sisters, one of the brothers being Frank Barnum, upon whose election the principal question in this case has arisen. The estate has been settled by the executor, and the question now is, upon the events that have happened, who is entitled to the estate.

The testator, by his will, devised and bequeathed in trust to his friend, Samuel H. Tagart, and to his successors in the trust, the entire estate, real and personal, of which he died seized and possessed; and after declaring certain uses, and investing the trustee with certain powers, he proceeded to declare the principal trust of his will, in regard to the property now in controversy, in the following terms:

“In the second place, in trust, as to all the restand residue of my estate, to appropriate and apply the net income thereof, as follows:

“If, within twelve months after my decease, my brother, Frank Barnum, shall withdraw from the priesthood in the Roman Catholic Church, (should he be at the time of my death a priest in said church,) and from any and every order or society connected with said church, of which he may be a member, and until he shall become a priest or deacon in said church, or shall connect himself with some order or society of said church, or until the income of said property, or some part thereof, shall he sought to be subjected to the payment of his debts or liabilities by legal process,-1 direct that the net income of said rest and residue of my estate, he paid to the said Frank Barnum in every year, in such instalments as the said trustee, or his successor or successors, may deem best, for and during the term of the natural life of the said Frank Barnum.

“ But if within twelve months after the time of my death, my brother shall not have withdrawn from the priesthood aforesaid, (should he be at the time of my death a priest in said church,) and from any and every order or society of which he maybe a member, connected with said church, or if he shall at any time hereafter become a priest or deacon in said church, or become a member of any order or society of said church, or if said income, or any part thereof, shall he sought to be subjected by legal process to the payment of his debts or liabilities, and he shall be without wife or children, or if he shall die without leaving a child or children living at the time of his death, who shall attain the age of twenty-one years, then (subject to the life estate or estate for widowhood aforesaid .in one-third thereof), I give, devise and bequeath the said rest and residue of my estate to the Mayor and City Council of Baltimore, in trust, for the McDonogh Educational Fund ■and Institute, to he applied to establishing a chair therein, to be called the ‘Zenus Barnum Chair,’ to promulgate ■such a course of instruction in said institute as will aid in the practical application of the Mechanical Arts — the said estate and property to be held under the same control •and direction as the estate and property now held by said fund and institute, and to be so appropriated and applied •as to give boys in that institution such useful and practical mechanical education as will enable them to gain a livelihood by skilful manual labor — the surplus income, after the payment of the professor, to be applied to the erection of necessary buildings, and furnishing needed tools and the like for the above mentioned purposes.”

It is conceded that at the time of the testator’s death, his brother, Frank Barnum, was not a priest or deacon in, nor a member of, or connected with, any order of society •of the Roman Catholic Church; but that on the 31st of •July, 1882, he became a member of, and connected himself with, an order or society of that Church, and he has remained so connected ever since. He was unmarried and without issue at the time of the death of the testator, and has so remained to the present time. It also appears that -after the present bill was filed, an attachment was sued out against Frank Barnum, on a judgment against him, and laid in the hands of Tagart, the trustee, to affect the interest under the will. That proceeding is still pending.

It is agreed that the only fund held by the Mayor and City Council of Baltimore, derived from the estate of ■John McDonogh, at the date of the will of Zenus Barnum, the testator, is the sum of $650,000, and that the only object or purpose to which any portion of that sum was or has been applied, is to the establishment, maintenance and support of the “ School Farm ” in Baltimore County, known as the “ McDonogh Institute.” It is admitted that such School Farm was established about the year 1872, and that it has been ever since in operation. It is admitted that several professors are employed, and many hoys are taught therein; and that there is no other school or institute in this State known as the “McDonogh Institute.” This, school or institute was established and has been maintained by the funds alone which were received by the Mayor and City Council under the will of John McDonogh;. and its establishment, and the government thereof, have been under and in pursuance of ordinances and resolutions, of the Mayor and City Council by an agency styled “ The Board of Trustees of the McDonogh Educational Fund and Institute,” created by ordinance.

For a full history of the origin, objects and purposes,, terms and conditions of the McDonogh school or educational fund bequeathed to the City of Baltimore, and of the “School Farm” directed by the will of McDonogh to he founded by the city, reference may he made to the case-of McDonogh vs. Murdock, 15 How., 367, where all the facts appear, and the rights of the city uuder the will of' McDonogh were declared and established.

It appears from the answers of the appellants, and the opinion of the learned Judge below, that several questions were raised in the Circuit Court, upon the construction of' the will of Barnum, that have not been discussed by counsel in this Court. The proposition, or rather suggestion, made in the answers of the appellants, that as Frank Barnum was not a priest, deacon, or member of any order or society, connected with the Roman Catholic Church, at the time of the death of his brother, he therefore took no-interest or estate under the will, has no support in any principle of fair construction; and the learned Judge below was quite right in holding that Frank Barnum took the equitable estate, and became entitled to the income thereof, from the death of the testator to the time of his. becoming a member of tbe order or society connected with tbe church. And so in regard to the question of its being against ■ public policy to make the devise or bequest dependent upon the condition that the devisee or legatee should withdraw from the priesthood or membership of any order or society connected with the church, or refrain from forming any such connection, the authorities leave no room to question the right of the testator to prescribe such condition. Whatever may be thought of the opinions of the testator, or his prejudices, the law recognizes his right to make the enjoyment of his bounty dependent upon the condition attached in this case. Mitchell vs. Mitchell, 18 Md., 405; Vidal vs. Girard, 2 How., 127, 199; Dickson, Ex parte, 1 Sim., (N. S.,) 37.

The principal question involved in the case is, whether, upon the determination of the estate of Frank Barnum, the limitation over of the trust estate to the Mayor and City Council of Baltimore, for the purposes mentioned, be valid, and of a nature to be executed in accordance with the intention of the testator. That question has been most fully and ably argued by counsel at the bar, and with the assistance derived from such discussion, we have been enabled to come to a definite conclusion as to the rights of the parties under the will.

On the part of the heirs-at-law and next of kin of the deceased, it has been strongly contended that the limitation over to the Mayor and City Council in trust is void, because of the want of power in the municipal corporation to accept and hold the trust created by the will, and because of the undefined and uncertain object of the trust, or rather its non legal entity, and the consequent impossibility to enforce the execution of that trust, according to the plan of the testator. And the familiar cases of Dashiell vs. Atty. Genl., 5 H. & J., 392; Wilderman vs. M. & C. C. Balto., 8 Md., 551; Needles vs. Martin, 33 Md., 609; Church Extension, &c. vs. Smith, 56 Md., 362, and Rizer vs. Perry, 58 Md., 112, have heen relied upon and enforced upon us as being entirely conclusive of the proposition sought to be maintained. But this Courtis of opinion that the cases relied on do not, by any means, conclude the question presented in this case.

Those cases are quite distinguishable from this in many respects; and while it is true that the Statute of 43 Elizabeth, ch. 4, in regard to charities and charitable donations, has never heen adopted in this State, it does not follow that charitable bequests or donations, such as that designed by the testator in the will before us, may not be sustained, altogether apart from and independent of the provisions of that Statute. If there he parties capable of taking the subject-matter of the trust, and objects legal and definite, to he subserved or benefited by its execution, so that a Court of equity may take cognizance of and enforce the trust, these are the essentials, and only essentials, to the validity of the trust, though the object of the trust he in its nature charitable. In cases where these essential elements of certainty exist, there is no greater difficulty in the exercise of the supervisory power of a Court of Chancery over a trust for charity than there is in the exercise of such power over trusts of any other nature. The Court of Chancery in such cases only exercises its original inherent jurisdiction over trusts. In respect to trusts for charity, irrespective of the provisions of the Statute of 43 Elizabeth, ch. 4, the question that most frequently arises, and the one that has given the greatest difficulty is, whether the objects intended to be benefited or promoted are sufficiently certain and definite to enable the Court to declare who are entitled, to the exclusion of all others, and to secure to them the benefit of the trust. In the cases relied on by the appellants, the donations failed because of the uncertain and indefinite character of the objects of the charities intended to he established.

In this case, the first question to he determined is, whether the municipal corporation of the City of Baltimore is capable of taking devises and bequests of real and personal estate for tbe objects and purposes mentioned in tbe will; and the second, whether these uses are charitable uses, valid in their nature, and sufficiently certain and definite to be carried into execution, and enforced by a Court of equity.

1. With respect to the first question, the original charter of Baltimore City, granted by the Legislature in 1796, ch. 68, invested the corporation with power to “ purchase and hold real, personal and mixed property, or dispose of the same, for the benefit of the said city; ” and this power the corporation still holds. Code Pub. L. L., Art. 4, sec. 1. Whether this power enabled the corporation to take real and personal property in trust, it is unnecessary to decide in this case ; though, according to the great weight of authority, it would seem to be entirely capable of taking property in trust, for purposes germane to the objects of the corporation, or which would promote, aid or assist in carrying out or perfecting those objects. 2 Kent Com. 280; 2 Dill. Mun. Corp. (3rd Ed.), sec. 567, and cases there cited; Vidal vs. Girard, 2 How., 127; McDonogh vs. Murdock, 15 How., 367; Perine vs. Carey, 24 How., 645. In the charter of Baltimore City, however, there is express power conferred in respect to this subject. By the Act of 1842, ch. 86, since forming part of the charter of the city, it is provided that the “ corporation may receive in trust, and may control for the purpose of such trusts, all money or other property which may have been or shall be bestowed upon such corporation by will, deed, or in any other form of gift or conveyance in trust for any general corporation purpose, or in aid of the indigent and poor, or for the general purposes of education, or for charitable purposes of any description within the said city.” Code Pub. Local Law, Art. 4, sec. 2. A more comprehensive power could not be desired, and it would seem to embrace the very subject of contention in this case. It authorizes by express terms the corporation to accept and hold in trust any property given for purposes of education, or for charities of any description. The fund bequeathed to the city in trust, by the will before us, is for purposes of education, as well as for a charitable purpose ; and if there was no question as to the objects of the charity, or as to the power of a Court of equity to enforce the execution of the trust,' there could he no room for controversy.

In regard to the bequest of McDonogh to the City of Baltimore of funds in.trust, for the establishment of a charity to promote education and industry, the Supreme Court of the United States, in the case already referred to of McDonogh vs. Murdock, 15 How., 413, held the city to have capacity to receive and hold the funds in trust for the purposes designated; and in speaking of the application of the trust fund, the Court say: “ All the property of a corporation like Baltimore is held for public uses, and when the capacity is conferred or acknowledged to it to hold property, its destination to a public use is necessarily implied. Nor can we perceive why a designation of the particular use, if within the general objects of the corporation, can affect the result; nor is there anything in the nature of the uses declared in this will which can withdraw from the legacy a legal protection.” And so in this case. The city is authorized and required by the laws of the State to establish and maintain a system of free schools for the benefit of its citizens, and therefore the subject of education is within the general objects of the corporation, and there can be no good reason why the particular designation of the use, and the manner of appropriation of the fund in question, should be subject to legal objection. It is devoted or dedicated to a great public benefit; it promotes, aids and assists in carrying out and perfecting the objects of the corporation.

But it is argued for the appellants that the provision of the charter of the city authorizing the holding of property in trust, only so authorizes where the objects and purposes •of the trust are of a certain and well defined nature, and ■capable of being enforced; that it was not the object of that provision of the charter to change the pre-existing law, and to prescribe what definition of trusts should be ¡sufficient, or to declare that the corporation might take property in trust, where the objects and purposes are so indefinite as to be beyond the power of a Court of equity to compel enforcement of the trust. And without stopping to consider whether this he the correct interpretation of the provision of the statute or not, it is sufficient for us to say that the requirements of this case do not make it necessary that we should, in this respect, hold the contrary of that for which the appellants contend. In our view of this case, the construction of the statute, further than to see that it authorizes the corporation to receive and hold the property in trust for educational and charitable purposes, is wholly unnecessary. We therefore forego further remark upon it.

2. We come now to the second question, and that is, whether the objects and purposes, and the beneficiaries of the trust, are sufficiently certain and defined to render the trust valid, and to enable a Court of equity, by virtue of its inherent jurisdiction and power over trusts, to enforce the trust, in accordance with the plan and intent of the ■testator. And of this we entertain no doubt.

In the event that has occurred, the testator devised and bequeathed the rest and residue of his estate to the Mayor ■and City Council of Baltimore, in trust, for the McDonogh Educational Fund and Institute, to be applied to establishing a chair therein, to be called the “ Zenus Barnum Chair,” to promulgate such course of instruction in said Institute as will aid in the practical application of the mechanical arts. He then declares that the property so given shall be held under the same control and direction as the estate •and property now held by said Fund and Institute, and to be so appropriated and applied as to give boys in that institution sucb useful and practical mechanical education as will enable them to gain a livelihood by skilful manual-labor. This is certainly a benevolent and charitable design, and falls fully within the legal definition of a charity.. It is therefore entitled to the most liberal construction for its support.

As we have already stated, it is conceded that there-never has been any such incorporated body as the “Mc-Donogh Educational Fund and Institute but that there-has been for many years, and still is in existence, a municipal organization or agency, constituted by ordinance of the city, under the name and style of the “ Board of Trustees of' the McDonogh Educational Fund and Institute,” for the-administration of the educational fund derived itnder the will of McDonogh. This board is clothed with large powers-for the management of the fund, and for beeping intact their own body. It appears that the funds derived from the McDonogh estate not being sufficient to establish and maintain the free school or schools contemplated by Mc-Donogh, -such funds have been devoted exclusively to the-purchase, the establishment and maintaining of the-“School Farm,” authorized and directed to be maintained by the will.’ This farm, with its organized school thereon,— with its teachers and pupils, — is known as the “ McDonogh Institute.” And this “ School Farm,” and school thereon,, are, by ordinance of the city, under the exclusive management and control of the “Board of Trustees of the McDonogh Educational Fund and Institute.” By the-ordinance constituting the board and defining its powers,, it is provided that “ all the money, securities, and property of every kind and description, with the increment thereof, which has or may come to the city (from the Mc-Donogh estate), shall pass to and be vested in said board of trustees.”

Now, with respect to the intention of the testator, in. view of all the admitted facts of this case, we cannot perceive that there is any well grounded room for doubt, that he intended the estate given to be managed and controlled by the “ Board of Trustees of the McDonogh Educational Fund and Institute,” and that it should be applied by that municipal agency, in the manner designated in the will, in connection with and as part of the “ McDonogh Institute:” That is the only educational institute, founded upon the McDonogh fund, to which he could have referred; and we must suppose that he knew perfectly well how that charity was organized, and by what agency it was controlled. And that being so, what uncertainty or difficulty can there be in the application of the fund to the purpose and objects designated by the testator ? If the city was capable-of taking and organizing for the administration of the McDonogh fund, why should it not be equally capable of taking and applying the Barnum fund ? Seeing that both funds have a common object to subserve, and that the latter is but an adjunct to the former, and both being in aid and promotive of the general objects of the municipal corporation, both are equally within and subject to the administrative control of the agency instituted by the city ordinance.

It is objected that the “ Board of Trustees of the Mc-Donogh Educational Fund and Institute ” is not an incorporated body; and that “ The McDonogh Institute ” is not situated within the limits of the city; and therefore the beneficiaries of the trust are uncertain and undefined, and without legal identification as a body; and that the school or institute, being beyond the limits of the city, the-fund does not constitute a trust for the ^benefit of the citizens of the municipality, within the meaning of the charter. But in neither of these objections do we perceive that there is any such insuperable difficulty in maintaining the-validity of the trust, as is supposed by the objectors.

The municipal corporation, taking the fund in trust, takes it for the benefit of its citizens or the public, to be applied according to the terms of the trust. It is therefore, in a certain sense, cestui que trust, as well as trustee. The property acquired by it, though in trust, is for a public use; and the corporation is liable for the execution of the trust by and through the agencies it may create for the purpose. It is not the. agencies of the municipal corporation so much to which we must look for the execution of the trust, as to the corporation itself. Therefore, if the present bequest, instead of being to the city in trust for an educational purpose, had been to the city in trust to establish or maintain a house of correction, a hospital or pest-house, within or without the city,there can be no doubt of the validity of such trust, and that the objects would be sufficiently defined, notwithstanding the trustees or managers of such institutions, appointed by the city, had never been incorporated by law. And that being so, there can be no substantial reason assigned why the present bequest is not equally good. Nor is the fact that the “ McDonogh Institute ” is located beyond the limits of the city, a substantial objection to the validity of the trust. The Institute or School Earm is managed by city agencies, and for the benefit of the citizens of the corporation; and there is nothing to forbid, either in the bequest itself, or in the charter of the city, the present location of what is known •as the “ McDonogh Institute.” The ordinance providing for the board of trustees or managers, authorized the purchase of the farm, and the erection of the buildings thereon, in the vicinity of the city; and it has never been ■supposed that there was any legal objection to the power thus conferred upon the managers.

Lastly, it has been very earnestly argued against the ’ validity of this trust, that there is no power or jurisdiction by the exercise of which the trust can be enforced; that if it be established, to use the strong language of the brief, “no power on earth can prevent the corporation from using the property for the establishment and'maintenance of a pest-house, or an alms-house: for the support of its fire department, or its water department, or for any other corporate purpose.” And if such proposition were maintainable upon authority, we should desire no further argument to justify us in declaring against the validity of the trust. But we are far from acceding to the correctness of the position thus assumed on the part of the appellants, as applied to a case like the present. No principle is now better settled than that where property is held by a municipal corporation in trust, or where the trust reposed in the corporation is for a charity within the scope of its duties, a Court of Chancery will prevent the misapplication of the trust funds, and compel the execution of the trust. And this jurisdiction is not founded upon the Statute of 43 Elizabeth, but is part of the original inherent jurisdiction of the Court of Chancery over the subject of trusts. The Court will interpose and exercise its jurisdiction at the instance of the Attorney-General, or, according to many authoritative precedents, upon the application of the corporators or persons interested. The result of the authorities upon the subject is well stated by Judge Dillon in his work on Municipal Corporations ; and without doing more, we may refer to that valuable work, and the cases there collated by the learned author. 2 Dill. Mun. Corp., (3d Ed.), secs. 561, 909; Att’y-Gen’l vs. City of Dublin, 1 Bligh, (N. R.,) 312.

(Decided 18th. June, 1884.)

It follows from what we have said, that, in the opinion of this Court, the decree appealed from must he affirmed; and it is so ordered.

Decree affirmed.