Dye v. Beaver Creek Church

26 S.E. 717, 48 S.C. 444, 1897 S.C. LEXIS 114

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

The case contains the following statement of facts: This action was commenced on the 25th day of January, 1896, by the service of a summons, together with the complaint, on the defendants. The complaint sets forth the facts that the Beaver Creek Church was an unincorporated association, of the Baptist denomination; that the other defendants were, respectively, the deacons, and the clerk of said church or association; that one John Dye departed this life in December, 1854, leaving a last will and testament, wherein he devised a certain tract of land, situate iff Fairfield County, to his wife for life, with remainder to Beaver Creek Church, for certain purposes; that the life tenant had died; that the limitations in the will, whereby the remainder was devised to Beaver Creek Church, were void for uncertainty and remoteness; that the plaintiffs are the heirs at law of the said John Dye, deceased, and that they are entitled to a partition of said tract'of land, containing 127 acres; with the usual prayer for partition of the premises, or' a sale of the same, if actual partition is impracticable.

The defendants, in their answers, admitted that they were members of Beaver Creek Church, and that it was an unincorporated association, and they allege “that Beaver Creek Church is lawfully seized of the land, under the will of John Dye, deceased, and are charged with the trust therein set forth.”

The cause came on for a hearing before Judge Ernest Gary, at the June, 1896, term of the Court for Fairfield County, upon the pleadings and the testimony taken by the referee. As the issues arise entirely upon the construction of the will of John Dye, deceased, it is deemed unnecessary to incorporate in the “Case” any of the pleadings, except the above synopsis. It is admitted by counsel that Tabitha Dye, the widow of .testator, died in possession of the land mentioned in the complaint. Also, that the testator, John Dye, in his lifetime and at the time of his death, rvas a member of Beaver Creek Church, and that said church has now a membership of about 145 members; and that it is a church of the Baptist denomination, and that it is unincorporated. Also, that the defendants are in actual possession of the land in dispute, or rather that the Beaver Creek Church is in possession of the same. The following is a copy of the will of John Dye, deceased:

“In the name of God, Amen. I, John Dye, of the State and district aforesaid, being weak in body, but of perfect mind and memory, thanks be given to Almighty God, calling to mind and knowing it is once appointed for all men to die, do make and ordain this my last will and testament— that is to say: personally, and last of all, I give and recommend my soul to God, who gave it, and my body to the earth, from which it sprang, and my body to be buried decently in Christian order by my executor or executrix hereinafter named. First of all, my lawful debts to be paid out of my estate, and all the balance of my personal and real estate I give and bequeath to my beloved wife, Tabitha Dye, for her to dispose and live on during .her lifetime; and if there is anything at her deceast after left after her deceast and burial, I give and bequeath to the Beaver Creek Church for poor children, for their tuition. I hereby appoint my beloved wife, Tabitha Dye, and Nathaniel Davis, executors of this my last will and testament. Given under my hand and seal, the 14th day of December, Anno Domini 1854. (Signed) John Dye.” (Duly witnessed.)

The plaintiffs appealed from the decree of the Circuit Judge on exceptions, which, together with the said decree, will be set out in the report of the case.

1 The appellants’ attorney, in his argument, urges the following objections against the validity of the devise: First. That the devise is void for uncertainty in the sttbject matter, and as to the amount. The words, “and all the balance of my .personal and real estate, I give and bequeath to my beloved wife, Tabitha Dye, for her to dispose and life on during her lifetime, and if there is anything at her deceast after left after her deceast and burial, I give and bequeath to the Beaver Creek Church, for poor children, for their tuition,” in effect, conferred upon Tabitha Dye a life estate, with power to dispose of said property during her lifetime (which she failed to do); but if she failed to dispose of said property during her lifetime, then it was to go to Beaver Creek Church. The case of Sires v. Sires, 43 S. C., 266, shows that the devise to the Beaver Creek Church would be valid, even if it had been made to an individual fordiis private benefit. For a stronger reason, then, the devise is valid, because it is for a charitable use, which is regarded as a benefit to the public. This objection cannot be sustained.

2 Second. Another objection urged by appellants’ attorney. is: That Beaver Creek Church, bemg an unincorporated association, is incapable of taking and holding the land in the devise. Whatever doubts may have existed after the case of Attorney General v. Jolly, 1 Rich. Eq., 99, as to the power of an unincorporated association to hold land for a charitable use, was dispelled by the case of Bates v. Taylor, 28 S. C., 476, in which this question squarely arose, and was necessarily decided. As this is an important question, we will quote somewhat at length from that case. The facts' of the case are thus stated: It appears that in September, 1847 * * * certain citizens, of that part of Richland County known as “The Fork” met to devise means for the erection of an academy to educate their children, in the neighborhood of Good Hope. Subscriptions were raised to the a'mount of $2,525. Among the subscribers was John Bates, who subscribed $500 in cash, and thirty-seven acres of land. On December 2, 1847, an association or society was formed, under the name and style of the “Palmetto Society.” Officers were elected, of whom John Bates was one, and the “Palmetto Academy” and “Teacher’s Home” were built on said parcel of land. On July 2, 1847, at a meeting of the society, a resolution was adopted, authorizing an application for á charter, which was afterwards obtained, to continue for fourteen years, under the name of the “Palmetto Society in Columbia for the dissemination of learning,” and was accepted July 28, 1849. The parcel of land, known as the Palmetto Academy lot (thirty-seven acres), was marked off by a blazed line, and the buildings erected thereon have been used and held as a school.ever since. It seems that during the war, the regular meetings of the society or incorporation were not held, but a school of some character was kept there all the while. After the war, the premises were used for a time as a public school, under the general laws, and in 1883 application was made and the charter revised. John Bates, during his lifetime, never claimed the academy lot, but respected the lines. He died soon after the war (December 25, I860), and his executors, in running his lands, left out the academy parcel, running around the old lines. His lands were sold by order of the Court (1885), and purchased by the plaintiff, and she now brings this action, alleging that the title to. the said lot had reverted to John Bates, in his lifetime, and passed to her under the purchase aforesaid. “The Palmetto Society,” Jesse H. Taylor and C. W. Rawlinson, answered, first, denying each and all of the allegations of the com plainf; and, second, alleging that neither the plaintiff nor her ancestor or grantor was seized of the premises in question within ten years before the commencement of the suit, but that the defendants, and those under whom they claim, have been in the adverse and exclusive possession for more than ten years, &c. The jury rendered a verdict in favor of the defendants. The plaintiff appealed to the Supreme Court on exceptions, the third, fifth, and sixth of which are as follows: “777. That his Honor erred in his charge: ‘That the defendant, “The Palmetto Society,” could hold the land in dispute as an unincorporated association, and that said society did not hold said land as an incorporation.’ V. That his Honor erred in charging: ‘That when the land in dispute was given to the defendant, the Palmetto Society, no charter was in contemplation, and said society took the land not as a corporation, but as an unincorporated association.’ VI. That his Honor erred in charging: ‘That the land in dispute was given for a valuable consideration to an unincorporated association, and that association being afterwards incorporated, the land was held in abeyance during the life of said corporation, and at the death of said corporation, the land herein did not 'revert to the grantor, John Bates, but reverted to the unincorporated association.’ ” In considering the exceptions, the Court said: “The exceptions, in different form, complain that the Judge committed error in charging that, as matter of fact, the contribution of the land was made to an unincorporated society for a public purpose, without reference to the charter which that society afterwards obtained, and was allowed to expire, amidst the confusion of the war (1862), and proceeding on this assumption, he committed further error of law, in holding that the subscription was for a valuable consideration, and that the unincorporated society could accept and hold the land either individually or as a body, without a charter, so as to divest the donor, John Bates, of the title to the same.” In concluding the opinion, the Court quoted with approval the following language of Ch. Harper in Attorney General v. Jolly, supra, to wit: “But the whole subject was considered (Vidal v. Girard’s Executors), and the opinion of the Court was plainly intended to overrule the case of the Baptist Association v. Harts’ Executors, 4 Wheat. * * * I understand these principles to be settled by the decisions referred to. If there be a bequest to a society by that name, the individuals composing it, who may be identified by evidence, take as natural persons in the same manner as if each had been particularly named, and that if it be upon a lawful-trust, they will be compelled to execute it,” &c. The exceptions were overruled and the judgment affirmed. The second objection cannot be sustained.

3 Third. Another objection urged is: That the object of the devise is not germane to the purposes for which the association was organized. The case of Attorney General v. Jolly shows that when a devise is made to an unincorporated association, for a charitable use, the members thereof take as natural persons, and not as an association. That case further shows that even if a devise is incompatible with the purposes for which an association was organized, the devise would not be void, but the Court would appoint another trustee. Also, that there is no objection to a corporation holding property, not strictly within the scope of the purposes of its institution, but collateral to them. There would seem to be less ground for this objection when the devise is, in effect, to members of an unincorporated association, who hold as natural persons. There, however, is doubt whether a devise for tuition of poor children may not be regarded as germane to the purposes for which a church is organized. The syllabus of the case of Hanson v. Little Sisters of the Poor (Md.), 32 L. A. R., 293, is as follows: “A trust for the maintenance of a parish school is germane to the object for which a Protestant Episcopal church is incorporated.” The Court sees no force, therefore, in this objection.

4 Fourth. Another objection urged against the validity of the devise is: That it is so vague, indefinite, and uncertain, as to the objects and beneficiaries of the tise, that it is void. It will be observed that the devise is forpoor children, and its object is their education. The beneficiaries are a definite class, and the object of the deviséis beyond question charitable in its nature. Chan. Harper, in Attorney General v. Jolly, mentions three kinds of charitable uses, the second of which is as follows: “Another instance is where trustees are appointed, but the objects are so vague and indefinite, that if the gift were to any other purpose than charity, the Court must declare the trust void for uncertainty, as in the instance of Morice v. The Bishop of Durham., 9 Ves., 399, where the trust was for such objects of benevolence and liberality as the Bishop of Durham should approve. To a bill for setting up a charitable use of this sort, I think the attornej^ general ought to be made a party to aid the Court in devising the specific scheme for carrying it out” (italics ours).' In the case of Attorney General v. Jolly the devise was as follows: “I give, devise, and bequeath the whole of my estate, both real and personal, to my wife, Elizabeth Burnétt, during the term of her natural life. After her death, I give, devise, and bequeath the whole of my said estate, both real and personal, to the Methodist church of which she may be a member at the time of her death, to be appropriated to the uses and purposes which the conference1 may deem most advantageous for said church; more especially for the support of Sunday schools, for the purchase of Bibles and religious tracts and the distribution of the same among the destitute, and for the support of missionaries.” This devise was held to be valid. In the case of Heiskell v. Chickasaw Lodge (Tenn.), 4 L. R. A., 689, the Court says: “In State v. Smith, 16 Lea, 664, where the devise was to trustees to establish la college of learning,’ the trust was not only sustained, but the Court undertook to supervise the location and plans of building and the scheme for the conduct of the college. The following principles are settled in Tennessee: First, that trusts for charitable uses should be favored by courts of equity; second., that where the object of the charity is definite and it is to be administered by trustees, it will be sustained; third., that although the objects may be too indefinite for a court of chancery to undertake to administer • it, yet, if a trustee capable of taking the trust be named, and clothed with the necessary powers and discretion for carrying out the charity, it will be upheld.” See, also, Johnson v. Johnson (Tenn.), 22 L. R. A., 179; Hill on Trustees, *467; Perry on Trusts, sections 710, 713, 719, 720, 721, 722, and 731; Russell v. Allen, 107 U. S., 163. In the last mentioned case, the earlier decisions are reviewed, in an able opinion, by Mr. Justice Gray. We“shall not attempt to review the many and conflicting authorities bearing upon the question under consideration, but state the following principles deducible from them: First. If a trustee is appointed by the testator, and the will shows that the object of the devise, though expressed in general terms, is for a charitable use, the trust will be declared valid. In such a case, the duty devolves upon the trustee of devising a scheme for carrying the trust into effect. Second. If a trustee is not appointed by the testator, and the will does not declare the manner in which the devise is to be made effectual, equity will not administer the trust. The reason a trustee is allowed to enforce a trust, the object of which is only expressed in general terms, is that in exercising his discretion he carries out the intention of the testator. But when there is no trustee appointed to exercise this discretion in devising a scheme for the execution of the trust, the court of equity can look alone to the will, and if it does not show the intention of the testator, parol testimony is inadmissible, and the trust must fail.

5 This case is different from the case of Brennan v. Winkler, 37 S. C., 457, in two important particulars: 1. The words which it was contended created a trust in that case were merely precatory; and, 2. There was no trustee appointed by the testatrix, and as the will did not' disclose the manner in which the trust was to be administered by the Court, it was declared a nullity. By observing this distinction is the only way in which the cases of Attorney General v. Jolly, supra, and Brennan v. Winkler, can be harmonized. The Court did not intend to shake the authority of Attorney General v. Jolly, in Brennan v. Winkler; otherwise it would have said so. Furthermore, the Justice who delivered the opinion of the Court, in Brennan v. Winkler, wrote the opinion, also, in Bates v. Taylor, supra, where he quoted from Attorney General v. Jolly, with approval.

After a long and patient investigation of the authorities upon this question, we have reached the firm conclusion that the judgment of the Circuit Court should be affirmed, and it is so ordered.

Judgment affirmed.