E. Henry Wemme Co. v. Selling

262 P. 833, 123 Or. 406, 1927 Ore. LEXIS 265

• Court: Oregon Supreme Court
• Decided: October 11, 1927
• Status: Published

Opinions

BBOWN, J.

This snit is prosecuted by E. Henry Wemme Company, a corporation, for the purpose of acquiring possession and title to the property of a charitable trust created by the will of E. Henry Wemme and declared as such by this court. See Wemme v. First Church of Christ, Scientist, of Portland, 110 Or. 179 (219 Pac. 618, 223 Pac. 250).

The history of the litigation involving the construction of the will of E. Henry Wemme is substantially as follows:

On June 13, 1922, August Wemme, Julius Wemme, Paulina Grohmann, Anna Schubert and Johann Wemme brought suit in the Circuit Court of Multnomah County, Oregon, against the First Church of Christ, Scientist, of Portland, Oregon, and five other Scientist churches of Portland, in which they prayed for an accounting for all moneys and properties coming into their hands by virtue of their control of the stock of the E. Henry Wemme Endowment Fund, a corporation, and that the defendants be required to turn over all property of the E. Henry Wemme Endowment Fund, including the stock thereof, to plaintiffs; for the appointment of a receiver pending the suit, and for further relief as the facts might admit. On July 10, 1922, the plaintiffs filed an amended complaint against the First Church of Christ Scientist, of Portland, Oregon, and four other Scientist churches of Portland, and made the E. Henry Wemme Endowment Fund of Portland, Oregon, a party defendant. On October 19, 1922, the plaintiffs filed a second amended complaint, naming as parties defendant the six Scientist churches of Portland, the E. Henry Wemme Endowment Fund, and the Attorney General of Oregon. The defendant churches and the E. Henry Wemme Endowment Fund filed a joint answer. The Attorney General, answering, intervened and asked that the trust created under the Wemme will be declared to be a public charity, and that the testator’s bequest and declaration be carried into effect and the charity perpetuated. From the decision denying the relief prayed for, an appeal was taken by the Attorney General, August Wemme, Julius Wemme, Paulina Grohmann, Anna Schubert and Johann Wemme and E. Henry Wemme Company, of Portland, Oregon, upon all questions arising from the transcript. On October 23, 1923, this court, by its opinion, decided and determined the nature and character of the charity created by the will of E. Henry Wemme, and ascertained and declared the then present and visitorial authority for administering that trust, and by the mandate issued out of this court as a result of the decision it was ordered and directed:

“That the purpose for which the testator devised his property was to have the E. Henry Wemme Endowment Fund carry on the particular charity designated as a maternity home or lying-in hospital; that the testator, E. Henry Wemme, intended to impose an absolute liability upon the defendant churches to maintain such maternity home, until some time when that form of charity would be less beneficial to humanity than some other form; that the contingency has not yet arisen; * *

“It is therefore considered, ordered and decreed that this cause be remanded to the court below, from which this appeal was taken, with directions to appoint not less than three nor more than five competent and qualified trustees, to take over all of the property of the E. Henry Wemme Endowment Fund, and to administer the trust, and to require the defendant churches to account for all moneys and properties belonging to the E. Henry Wemme Endowment Fund that have come into their hands or possession. ’ ’

It was further directed that the lower court “ascertain and determine the reasonable compensation which should be paid to the attorneys, * * and to cause the same to be paid from the trust estate.”

For the opinion in the case, which contains a copy of the will, see Memme v. First Church of Christ, Scientist, of Portland, 110 Or. 179 (219 Pac. 618, 223 Pac. 250). For later decisions of the court, treating the fund in question as a charitable trust, and awarding compensation for its salvage, see Wemme v. First Church of Christ, Scientist, 111 Or. 386 (227 Pac. 277), and Wemme v. First Church of Christ, Scientist, 115 Or. 281 (237 Pac. 674). This plaintiff’s interest arises from paragraph 8 of the will of E. Henry Wemme, wherein it is made residuary legatee. The plaintiff company was incorporated for $100,000 during Wemme’s lifetime, and its stock divided into 100 shares, of the par value of $1,000 each. This stock was originally owned by Wemme, who died in 1914, and left 92 per cent thereof to his relatives, then residing in Germany. Under the will, August Wemme received 22 shares, Julius Wemme 20 shares, Paulina Grohmann 20 shares, Anna Schubert 22 shares, and Johann Wemme 8 shares. Following the entry of the United States into the World War, this stock was seized by the Alien Property Custodian under the provisions of the “Trading with the Enemy Act.”

Being dissatisfied with the decision of this court holding that the above-described property, known as the E. Henry Wemme Endowment Fund, constituted a charitable trust, Howard Sutherland, as Alien Property Custodian for the United States of America, and this plaintiff, E. Henry Wemme Company, a corporation, instituted a suit in the federal court against Ben Selling, Dr. Allen P. Noyes, Edgar H. Sensenich, Irene Gerlinger and Oscar C. Bortzmeyer, as trustees of the E. Henry Wemme Endowment Fund created by the terms of the will of E. Henry Wemme, praying for a decree against the trustees, and requiring them to account for all the property received by them under the decree of this court hereinbefore referred to; for injunctive relief against the trustees; that a trust be declared in favor of the plaintiffs, on the ground of a lapsed devise; and “that the judgment of the state court of Oregon and all acts by the public trustees appointed in its behalf thereunder by the court be declared, in so far as it divests the E. Henry Wemme Company of the assets of the E. Henry Wemme Endowment Fund under clause 8 of the will, null and void and in contravention of the Fourteenth Amendment to the Federal Constitution and the Due Process of Law clause thereof.” The defendants moved to dismiss the plaintiffs’ bill of complaint, upon the ground that it failed to state facts sufficient to constitute a cause of suit, and that the federal court was without jurisdiction to hear the case. The motion was overruled by that court, and the late Judge Chas. E. Wolverton, before whom the motion was heard, set forth his reasons therefor in the following language, clear and understandable:

“If the bequest to charity is valid, as was declared by the Supreme Court, there was no occasion for. taking it over (by the Alien Property Custodian), because it was not alien enemy property. But if the charity clause is void, as plaintiffs claim, the property goes to the E. Henry Wemme Company, and, of course, will enhance the value of the stock of that company. So that it depends upon whether the devise to charity is a valid gift, and upon this question depends the further standing for insisting upon a recovery of the property in question. If the devise to charity is valid, then of course he has no standing. But the pleadings present the issue, and the mere fact that the claim is there, whether maintainable or not, involves, by the contentions growing out of it, the federal questions previously suggested.”

The case was heard in the Federal District Court, and Judge Wolverton dismissed the bill of complaint upon the ground, first, that the decision of the Supreme Court of the State of Oregon construing the law was binding on the federal courts sitting in this state; and on the further ground that, whether binding or not, the decision of the Supreme Court of this state was correct.

The Alien Property Custodian and the E. Henry Wemme Company, a corporation, dissatisfied with the decision of Judge Wolverton, appealed the case to the United States Circuit Court of Appeals. In that connection, see 16 Fed. (2 ed.), 865, for the opinion of Judge Budkin, who, speaking for that court, said:

“This is but another illustration of attempts so often made to circumvent the judgments and decrees of state courts of competent jurisdiction by appealing to the federal courts on some fancied constitutional ground. Here the testator had his domicile in the state of Oregon, his will was made and probated there, his property was there, the trustees named in his will were there, as were the objects of his bounty. The Supreme Court of the state had full and complete jurisdiction over the subject-matter of the action, with competent parties before it, the Attorney G-eneral of the state upholding, and the churches opposing, the charitable trust created by the will. Thus vested with jurisdiction, the highest court of the state has construed the will and the laws of the state, and that construction is binding on a federal court sitting in the same state, regardless of any question of parties or of res adjudicata. The decision not only fixed the rights of the parties to that litigation, but it likewise established the law of charitable trusts in that jurisdiction, so far as the federal courts are concerned. * *

“We fully agree with the court below that the decision of the Supreme Court of the State of Oregon is sound in principle and is controlling here.”

The plaintiffs next undertook to appeal to the Supreme Court of the United States, but their petition for a writ of certiorari was denied: See Wemme v. Selling, 273 U. S. 760 (71 L. Ed. 549, 47 Sup. Ct. Rep. 475).

At this juncture, the E. Henry Wemme Company, a corporation, unwilling to abide by the determination made by the federal courts, instituted this suit in the Circuit Court for Multnomah County, Oregon, asking for substantially the same relief that it sought in the federal court. The defendants put in issue the material allegations of the complaint, and pleaded former adjudication resulting from the suits in the state and federal courts. The plaintiff then comes back and asserts, in effect, that neither the state nor the federal conrt had jurisdiction, because, it says, the federal court refused to decide the issues, and the plaintiff corporation was not a party to the suit in the state court. We have heretofore referred to the holding of Judge Wolverton that the federal court possessed jurisdiction. Prior to the conclusion of the trial in the federal court, Mr. Yeatch, of counsel for defense, moved for a dismissal, and said: “We rest our case upon that motion,” and Mr. Wickey, of counsel for plaintiff, replied:

“The jurisdiction of the court has been decided by this court in a well-worded opinion.”

Now, as to the holding of the federal court with reference to the decision of this court in the original Wemme will case, note the following from the opinion of Judge Wolverton:

“When the Attorney General of the state was interpleaded and filed his cross-complaint, there were parties plaintiff and defendant, in all respects proper and qualified to carry to final issue and determination the matters in dispute. The Supreme Court of the state, when it rendered its decision interpreting the will of E. Henry Wemme, had under consideration, among others, two matters: One, to ascertain and determine the nature and character of the charity created and bestowed, and the other, to ascertain and declare the present and visitorial authority for administering the trust. The opinion was rendered by Justice Rand, and is searching, exhaustive and able, and we have scrutinized it without avail to find that the court has held that the essence of the trust created by the will was the ‘particular White Shield Home.’ * * The name, however, is by no means the essence of the charity created. * * This charity, in its interpretation of the will of E. Henry Wemme, the court upheld, and declared that its establishment and perpetuation were within the mind and purpose of the testator.”

The Wolverton opinion then recites the facts relating to the purchase of the site and the construction of a hospital thereon, and its sale to the Salvation Army. Concerning the merits, the court then said:

“The fact that that particular home was disposed of did not destroy the charity instituted by the will of E. Henry Wemme. It was simply a misadventure, which it was the purpose of the court to correct, and which it did correct by reinstatement of the E. Henry Wemme Endowment Fund, with visitorial powers and authority to administer the trust or charity created. * * That charity stands upheld and sustained by the court, and ample provision has been made for its administration as directed by the testator. So the first contention cannot be maintained.

“Nor can the second contention be maintained. Counsel are in error when they assert that, through the action of the state courts and the Attorney General, the fund has been irrevocably cut off from the White Shield Home, if they mean thereby that the fund has been irrevocably cut off from the charity created by the testator. The direct contrary is the case. As has been indicated, we are dealing with an express charity, not with a name by which the hospital shall be known. There exists no good reason why a new hospital may not take the name designated in the will. * * The fund belongs to the charity, and constitutes the means by which it shall be maintained and dispensed.”

Continuing, the learned jurist, after quoting from the opinion of this court hereinbefore referred to, said:

“These quotations from the opinion of the court and the mandate indicate unerringly that it is the particular charity about which it treated and adjudicated, and not the particular ‘White Shield Home’ hospital that was constructed by the E. Henry Wemme Endowment Fund. Nor was the charity diverted by the sale by the churches of the hospital thus constructed.

“ * * For present purposes, it is not material whether or not the Alien Property Custodian or E. Henry Wemme Company was a party to the cause heard and determined in the state court, whatever may have been their interest in the controversy. They, or either of them, can recover in any event only under the residuary clause of the E. Henry Wemme will, and this upon the hypothesis that the charity provided for and created by the will is inoperative or has lapsed. • Eventually, when the Attorney General filed his cross-complaint, the state court had before it a cause pending, with proper parties plaintiff and defendant, regardless of whether the E. Henry Wemme Company was made a defendant or not. As previously indicated, the Wemme heirs were not in a position to maintain the suit as residuary legatees under the will, simply because they were not made such. The sole residuary legatee was and is the E. Henry Wemme Company, and it could take only in case the charity failed or lapsed through some cause vital to its present validity. The state court, having regularly a pending and existing cause before it, had jurisdiction to hear and determine the controversy and dispose of all matters relevant thereto. This it did, with the result that the legacy creating the charity and bequeathing a fund for its support and maintenance was declared valid and operative. The state court having jurisdiction of the cause, and the matters involved being within its cognizance, what it did is binding upon this * * court. * * It results, therefore, that I am bound by the state court’s findings and adjudication respecting the charity created by the E. Henry Wemme will, sought to be avoided and set at naught by the heirs of E. Henry Wemme and the churches. But, were I not so bound by that litigation and adjudication, I am, after a careful review of the case and of the opinion of the court and the subsequent proceedings taken in pursuance thereof, fully persuaded that the views announced by the court, and the principles promulgated by which the charity was sustained and upheld and declared valid and operative, are, in all essential respects, sound, and I here and now concur therein. * *

“Against this valid charity, neither of plaintiffs has any interest; nor can they prevail. There has been no lapse of the charity. The testimony of Mr. Ben Selling clears that up. # *

“The conclusions reached render it unnecessary to consider the questions presented as to the authority of the Alien Property Custodian * * , or, as it relates to the E. Henry Wemme Company, in presenting the supposed issue that its property is being taken without due process of law. Both parties are here, and their alleged interests have had ample consideration.

“The complaint will be dismissed and defendants will have a decree against plaintiffs for their costs and disbursements.”

We have already stated that the case was affirmed upon appeal to the United States Circuit Court of Appeals, and that the writ of certiorari therefrom was denied by the Supreme Court of the United States. From the foregoing language of the court, it plainly appears that the case was heard and determined upon its merits. In concluding the opinion, the court said: “Both parties are here, and their alleged interests have had ample consideration,” and thereupon ordered that the bill of complaint be dismissed.

Concerning the jurisdiction of the federal court of the subject matter of this controversy, it is a well-established rule of law that the jurisdiction of the subject matter involved in any litigation in any court must be determined in the first instance by the allegations of the complaint made in good faith, and does not rest on the existence of a sustainable cause of suit, or upon the evidence subsequently adduced. See Dippold v. Cathlamet Timber Co., 98 Or. 183 (193 Pac. 909), and authorities there noted, among which are Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1, 7 (137 Pac. 766), where this court, speaking through Mr. Justice Moore, wrote:

“The authority of a court to hear and determine a cause depends upon the allegations of the initiatory pleading, and not upon the facts.”

And, in rendering our decision in the Dippold case, we quoted the following illuminating excerpt from the leading case of Young v. Hamilton, 135 Ga. 339 (69 S. E. 593, Ann. Cas. 1912A, 144, 31 L. R. A. (N. S.) 1057), decided by the Supreme Court of the State of Georgia:

“The jurisdiction of a court to entertain a cause, and the right of the plaintiff in such cause to finally prevail, present essentially different questions; the former is determined from an inspection of the record, the other results from a consideration of the facts as established by the proof.”

See, also, this rule as announced in 17 Stand. Ency. of Proced., p. 660.

The jurisdiction alleged in the complaint filed in the federal court did not rest alone upon the allegations relating to the title of the Alien Property Cus todian. , In its bill of complaint filed in that court, the plaintiff averred as a ground of jurisdiction that it had been divested of its interest and ownership of the assets of the E. Henry Wemme Endowment Fund provided for by clause 8 of the will, in violation of the Fourteenth Amendment to the Constitution of the United States, and especially to the due process of law clause thereof, “and also in violation of the provisions of the Treaty of Peace with Germany, # * for the reason that the Supreme Court of Oregon rendered a judgment against the said E. Henry Wemme Company, * * in which # * the said E. Henry Wemme Company was held to have no interest in the assets of the E. Henry Wemme Endowment Fund # *

It is claimed that the plaintiff in this case was not a party to the litigation in the will case, i. e., Wemme v. First Church of Christ, Scientist, reported in 110 Or. 179 (219 Pac. 618, 223 Pac. 250). The record does not disclose that the corporation was a party to the litigation in the beginning. It appears from the record that, in that case the alien heirs, as such heirs, were first named parties plaintiff, and that the Christian Science churches were named as parties defendant. Later, the E. Henry Wemme Endowment Fund was made a party defendant, without any order of court therefor. Still later in the course of the litigation, and in the same case, the Attorney General of Oregon was made a party defendant, with no order therefor. Still later, E. Henry Wemme Company, plaintiff herein, was made a party to that suit, without any order authorizing that the company be made a party. See pages 249, 250, transcript of record, United States Circuit Court of Appeals for the Ninth Circuit, in Sutherland, Alien Property Custodian, v. Selling et al. From page 251 thereof we take the following:

“Mr. Wickey (of plaintiffs’ counsel): Mr. Little-field was stipulating about there being no order in the circuit court as to the admission of these certain parties in suit in that court; that is, that they did not obtain a rule or order from the court permitting their being admitted as parties. Judge Littlefield made that statement here a minute ago as a stipulation. I say we have no objection that — that there was no order in the state court, the circuit court, admitting these parties as defendants or plaintiffs, or whatever it was.

“The Court: The parties simply appeared without leave?

“Mr. Wickey: They were made parties, and appeared without leave of court, yes.

“The Court: I understand.

“Mr. Wickey: No objection to that. If that is the fact, let it go in.”

It is not shown by the record that this plaintiff made any appearance in the suit instituted in the original cause prior to the filing of the findings of fact by the trial judge. It does appear from the title of the cause that it was one of the parties taking the appeal. The plaintiff appears as a party appellant in the appeal bond. It appears as a party on the title pages of the respective briefs filed in the cause. And this court, following the record, which appeared to have been made by the defendant, assumed in its opinion that the plaintiff was a party to the litigation, and declared by its opinion that the plaintiff was the sole residuary legatee under the will construed therein. We have already shown that the plaintiff appears as a party in the mandate issued out of this court as a result of the litigation. Furthermore, the law presumes that the attorney undertaking’ to represent the plaintiff was duly authorized so to do. The will shows that the testator bequeathed the stock of the plaintiff corporation to his relatives. All of the plaintiffs named in the original suit were’ stockholders in this plaintiff corporation, and, under the will, they could have received no beneficial interest from the original suit, other than the resultant interest arising from the enhanced value of the stock of this corporation that would follow from a decree destroying the validity of the charitable trust. Nor could any other person have been benefited by such a decree. The only person, artificial or natural, to derive any benefit from the destruction of this trust was the corporation; and, flowing from its enrichment by reason of such destruction, direct benefit to the plaintiffs, heirs at law of the late E. Henry Wemme, would have followed. However, the control of a corporation is vested by law in the board of directors, and not in the stockholders thereof. As to the appearance of the corporation in the original litigation, the directors of the corporation testified, in effect, that it was made a party to the original litigation wrongfully and without the knowledge or consent of the controlling power of the corporation. As bearing upon this contention, there are many decisions holding that a person who voluntarily joins in an appeal for the purpose of having the case tried de novo is bound by the decision of the appellate court, because such an appearance constitutes a voluntary appearance: Fee v. Big Sand Iron Co., 13 Ohio St. 563; Shafer v. Hockheimer, 36 Ohio St. 219; Mason v. Alexander —Ingersoll v. Alexander, 44 Ohio St. 318 (7 N. E. 435); Gage v. Maryatt, 9 Mont. 265 (23 Pac. 337); Allen v. Bohner, 54 N. D. 14 (208 N. W. 234). In the early case of Lyons v. Miller, 2 N. D. 1 (48 N. W. 514), this question was before the court; and, in rendering the opinion for the court, Corliss, C. J., said:

“It is not entirely logical for him to repudiate a jurisdiction he has invoked.”

Again, with reference to the same subject, note the following from 2 Stand. Ency. of Proced., pp. 499, 500:

“The great weight of authority is that an appeal constitutes an appearance in the action in which the appeal is taken. * * A distinction is sometimes made that an appeal will amount to an appearance, if, upon appeal, there is a trial de novo; otherwise not.”

A corporation appears in court by its attorney. But, in order to enter such appearance, the attorney must be clothed with proper authority by the corporation. Again, while it is well established by the decisions that a party is not bound by an unauthorized appearance and may be relieved against a judgment rendered against him on an unauthorized appearance, it is equally well established that the act of an attorney in making an unauthorized appearance for a litigant may be subsequently ratified by such litigant: United States v. Throckmorton, 98 U. S. 61, 66 (25 L. Ed. 93, see, also, Rose’s U. S. Notes); Robb v. Vos, 155 U. S. 13 (39 L. Ed. 52, 15 Sup. Ct. Rep. 4). In general, the appearance of an attorney is prima facie evidence of his authority: State v. Estes, 34 Or. 196 (51 Pac. 77, 52 Pac. 571, 55 Pac. 25).

In the case of Wemme v. First Church of Christ, Scientist, of Portland, 110 Or. 179 (219 Pac. 618, 223 Pac. 250), this plaintiff appears to have been represented by the same experienced and able attorney who now represents the plaintiff in the present suit, and who alone signed the complaint. This fact, in itself, is bnt a slight circumstance; but it gathers strength and force when considered in connection with the other circumstances noted above. On the question of proof of appearance, note the following from 2 Stand. Ency. of Proced., p. 515:

“The general rule is that the appearance must be tried by the record alone. The weight of authority is that the record is conclusive, but there is contrary authority, and the courts often qualify the rule in seeking to avoid injustice.”

See, also, authorities under notes 5 and 6.

’ Therefore, should we follow the harsher rule, we would be compelled to hold that the plaintiff in this case has failed to prove that its appearance in the former case in this court was unauthorized. However, the writer does not believe that, under the showing made in the instant case, we should be compelled to hold that the record concludes the plaintiff. If the corporation voluntarily came into court, it' should be held; otherwise not, in the absence of proof of ratification. In any event, the evidence here, to the effect that the corporation did not make a voluntary appearance, leads us to base our decision upon the firm, certain and broad ground that this plaintiff corporation was not a necessary party to the suit for the relief sought by the Attorney General. No vested right of the plaintiff was prejudiced by this court’s determination in that suit. True, the court, by its opinion, held that the plaintiff herein was the “sole residuary legatee of the testator.” It is not here complaining about that holding. On the contrary, it is asserting the same thing. However, the issues determined by the court in that suit were issues made only by the Attorney General and the churches, and involved the existence and management of a charitable trust, no part of which had ever vested in this plaintiff.

What is the meaning of “vested,” as used in legal parlance? 2 Pope’s Legal Definitions defines the term thus:

“Vested. Accrued; fixed; settled; absolute; giving absolute ownership; not contingent; not subject to be defeated by a condition precedent.”

4 Words and Phrases (2 ed.), says:

“An estate is ‘vested’ where there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. # * An estate ‘vests’ in a person who is given a present and immediate interest, as distinguished from an interest the existence of which depends upon a contingency.”

Again: “Vested. Accrued; fixed; settled; absolute; having the character, or giving the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.” Black’s Law Dictionary.

The only vested' interest that the plaintiff corporation could possess under the provisions of the will arises by virtue of the residuary clause in that document, and that right accrues only upon the condition that the charity created by the testator becomes inoperative or has lapsed. The charity not having failed or lapsed, but being a lawful, fixed and existing charity, the corporation has not now, nor has it ever had, a vested interest in one dollar of the fund constituting that charity. The plaintiff having no vested interest in the subject matter of the suit between the Attorney General and the churches, no decree could have been entered for or against it in that suit. The state was entitled to no relief against this plaintiff corporation in that suit, and if this plaintiff, the E. Henry Wemme Company, had been made a party thereto, it must have resulted in a dismissal of the complaint as against it. It is a rule of law that no person need be made a party, against whom, if brought to a hearing, the complainant can have no decree: 15 Ency. of Plead & Prac., pp. 584-590, inel. In the litigation between the Attorney General and the churches this court held that the property therein involved was a donation to charity, and that “the gift was immediate and absolute, and vested the title to the property in the trustees as soon as the will took effect.” We are not prepared to recede from that holding. The corporation known as the E. Henry Wemme Endowment Fund, a charitable corporation, was organized by the express direction contained in the will, for the purpose of handling, managing, improving and mortgaging, certain real property “heretofore devised to my trustees for the purpose of conducting a maternity home or lying-in hospital for unfortunate or wayward girls.” That such an hospital, conducted for such an object, constitutes a public charity, is beyond question.

For a comprehensive and analytical statement defining the term “charity,” see opinion of Gray, J., in Jackson v. Phillips, 14 Allen (Mass.), 539, 556.

In the determination of this cause, the writer has kept in mind this principle: That a deliberate gift to charity by a testator possessing testamentary capacity is a favorite of equity: 2 Commentaries on Wills, Alexander, § 1142. See, also, 3 The American Law of Administration (3 ed.), Woerner, §429, where the author says:

“Testamentary gifts to charitable uses are distinguishable from other testamentary dispositions in several particulars, owing to the high favor with which the law regards them, and which demands their most liberal construction with the view of accomplishing the intent and purpose of the donor; and this to an extent which will uphold and carry into effect trusts to charitable uses which cannot be upheld in ordinary cases.”

In the litigation between the Attorney General and the churches, this' court decided that the will of E. Henry Wemme created a valid public charity; and we now add that that decision, whether right or wrong, is a conclusive adjudication. Two eminent federal judges have written opinions in which they declare that the holding of this court in the opinion written by Mr. Justice Rand was not only binding upon the federal courts, but, further, that the decision was right. In addition, as appears from the quoted opinion of Judge Wolverton, the federal court, with the parties to this litigation before it, and upon proper pleadings, likewise held that the charity created by Wemme had not failed or lapsed. And, after a careful review of the testimony of record, we can find no valid reason, assigned by counsel or otherwise, for holding to the contrary. In the State of Oregon, a sane man free from restraint may will his property to any public charity he may choose; and it does not lie within the power of any residuary legatee or heir at law to defeat his benefactor’s will by asserting that the public is served by a sufficiency of hospitals. It was E. Henry Wemme’s lawful right to make his own will, and to select the objects of his bounty. He was bequeathing his own property; and, so long as he kept within the law, it was his right to dispose of his fortune as he chose. The delays in the construction of another hospital are excusable. The testimony of Honorable Ben Selling, a well-known Portland business man and philanthropist, and chairman of the board of trustees of the Endowment Fund, is to the effect that, in due time, a hospital will be erected and operated as contemplated by the testator’s will. When we reflect upon the manner in which the trustees have been harassed by litigation, it is not difficult to understand why the present trustees, who are at all times under the control of the court, have not acquired a site and constructed a building thereon. As this court has previously determined, the paramount purpose of E. Henry Wemme, by his will, was to found and to maintain a lying-in hospital for poor, unfortunate and wayward girls. The fact that the hospital designated as the White Shield Home was sold does not defeat the carrying forward of the outstanding intention of E. Henry Wemme as expressed in his will. The representatives of the Salvation Army are not bound to continue to operate that hospital. The fund involved belongs to charity, and not to the White Shield Home. The sale and disposal of that particular property did not destroy the public charity created by the will. The E. Henry Wemme Endowment Fund holds a valid title to the property involved in this suit, for the express purpose of founding and maintaining a lying-in hospital for unfortunate and wayward girls. It follows that the charitable purpose of E. Henry Wemme as a benefactor to unfortunate humanity should be carried forward in accordance with his will, as heretofore construed by this court.

If it be true, as contended by my learned and able associate, that that portion of the will that authorizes the churches to expend the rents, issues and profits and all the proceeds of the E. Henry Wemme Endowment Fund in such a manner “as to create the greatest relief for the greatest number of suffering humanity,” is inoperative and void, this does not destroy or render null and void the testator’s definite gift to charity; for, as written by Judge Wolverton, when this same matter was pending before the federal court:

“ ‘It is a settled rule of construction,’ as held by the court in Oxley v. Lane, 35 N. Y. 340, 349, ‘that if effect cannot, consistently with the rules of law, be given to the entire will, or an entire provision in a will, any part of it may be sustained which is conformable to the rules of law and which can be separated from the residue without doing violence to the testator’s general intention.’ ”

We are not predicating our determination of this cause upon the ground that the case of Wemme v. First Church of Christ, Scientist, 110 Or. 179 (219 Pac. 618), constitutes a former adjudication of the plaintiff’s rights asserted herein. We are not deciding the case upon the principle of res adjudicata. We have quoted much from the opinion of Judge Wolverton because of its application to this cause, and because of the learning embraced therein. We are assuming herein that the plaintiff was not a voluntary party to that suit, and therefore no vested right could have been severed as a result of such suit. We do not say, however, that, in a suit brought for the purpose of construing the will, and with the necessary and proper parties thereto, it was held that the will of E. Henry Wemme created a definite, existing, public charity. By that construction the court interpreted the definite intention of the testator, as expressed in his will, to be the creation of a charitable trust, and, by its order, directed the removal of the then board of trustees of that trust and the appointment of other trustees in their stead. The same will, made by the same testator, involving the same charitable trust, is now before us, and we are governed by the same rules of construction. The law that was effective then is now the law. If the property involved therein constituted a definite charitable trust in the former suit, it is now a definite charitable trust. Reading the record that is before us in the light of the former suit, we must at least recognize as a valid precedent the determination there made. The purpose that guided the heart and brain of E. Henry Wemme when he made the will is the same benevolent and charitable purpose, whether determined by this court from the former, or from the instant, suit. We repeat that the definite aim that animated the being of E. Henry Wemme was the creation of a charitable trust for the benefit of unfortunate and wayward girls; and that trust has not lapsed, but shall continue throughout the generations yet to be.

The decree of the trial court will be affirmed.

ÍA.EEIRMED.

Bean, Coshow and Rossman, JJ., concur in the result. Belt, J., did not sit. Rand, C. J., took no part in the determination of this cause.