Kasey v. Fidelity Trust Co.

115 S.W. 739, 131 Ky. 609, 1909 Ky. LEXIS 45

Opinion

Opinion of the Court by

Judge Barker

Affirming.

This action was instituted in the Hardin, circuit court hy the executor, Fidelity Trust Company, to obtain a judicial construction as to the validity of a trust established in' the will of W. S. Kasey, deceased. The trust in question is established in items 9 and 11 of the will, and they are as follows:

“Item Ninth. All of the rest and residue of my estate including United States and city of Louisville and other bonds I bequeath and devise to the Fidelity Trust and Safety Vault Company of Louisville, Kentucky, in trust for my niece, Emma F. Kasey, for life and her children after her death should she have any. The said trustee shall pay all the taxes and repairs on the real and personal estate not: including* the farm devised to Robert Kasey during the lifetime of the life tenant and shall out of the income from the estate pay to the said Emma F. Kasey one hundred dollars ($100.00) per month for the support of herself and children should she have any, and also the support of her mother Mary E. Raitt and should the said Emma P. Kasey die before her mother my executor above named is directed to pay Mary E. Raitt fifty dollars ($50.00) per month from the death of Emma P. Kasey until her death, and the said Emma F. Kasey shall have the right to use and occupy as a home for herself and family the house and lot and cottage in Cloverport, Kentucky, purchased by myself and brother A. M. Kasey of Owen Raitt and wife, subject to their life estate during their lives.”

“Item Eleventh. If my said niece Emma P. Kasey should die leaving no children or lawful issue surviving her, or if such child or children should die leaving no lawful issue surviving them, then in such event I bequeath and devise all of the above estate devised in trust to the Fidelity Trust and Safety Vault Company, Louisville, Kentucky, for the said Emma P. Kasey and her heirs to the Fidelity Trust and Safety Vault Company, Louisville, Kentucky, my executors, to be held by them as an endowment fund for the American Bible Society, Astor Place, New York, the interest accruing on said endowment after the annual expenses and managing and attending to said fund by my executor have been paid at once to pay to the said Bible society semiannually or annually as it may become due. Said interest to be used by the said Bible society not in paying the debts of said society made heretofore, but in distributing the Bible or Word of God to the destitute of the earth-, and in case said Bible society should fail or become bankrupt or cease to work, then in such a case all of the above endowment shall revert back to nay legal heir©.”

Pending thle litigation, Emma F. Kasey, the niece and only heir at law of S. W. Kasey, died, intestate, leaving no children or grandchildren, and the action was by consent revived in the name of tbe executor of her will. On the part of Emma F. Kasey’s executor, it is insisted: First, that thle trust in controversy is void because tbe devise by which it is established violates the rule prohibiting perpetuities; and, second, that even if this be not sound, it is too vague, uncertain, and indeterminate for practical enforcement, and is therefore void. There are some other questions made upon the record, hut, as We understand it, the adjudication of these will settle all the material parts of the controversy.

"We will first examine the questions as to whether or not the devise provided for in item 11 is void! because in contravention of the rule against perpetuities. The language of the will involved in the solution of this question is as follows: “If my said niece Emma F. Kasey should die leaving no' children or lawful issue surviving her, or if such child or children should die leaving no lawful issue surviving them, then in such event I bequeath and devise all of the above estate * * * to the Fidelity Trust and Safety Vault Company * * * to be held by them as an endowment fund for the American Bible Society. * * * ” Upon the part of the executor of Emma F. Kasey, it is insisted' that the words, “or if such child or children should die leaving no lawful issue surviving them,” import an indefinite failure of issue, and that under the provisions of the will we are discussing it was intended that the trust should be established whenever any child or children or grandchildren, whom Emma Kasey might leave at her death, should die without issue. If this construction be correct, undoubtedly the position of appellant is sound that the trust is void because inhibited by the rule forbidding perpetuities. Section 2360, Ky; St, which is declaratory of the common-law rule on the subject, isas follows: “The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter.”- Now, if the testator intended by the language used that, if Emma E. Kasey left a child or grandchild alive when she died, and- thereafter if such child or grandchild should die without issue, then the trust should take effect, this would clearly be in the teeth of the statute above quoted, because the trust in the event supposed would take effect after an indefinite failure of Issue and beyond1 a life or lives in- being and 21 years and 10 months; but, on the other hand, the executor of the will of S. W. Kasey 'and counsel for American Bible Society contend that the language of the will under consideration, when taken as a whole, intended the trust for the benefit of the American Bible Society to take effect, at the death of Emma F. Kasey, provided that she left no child or grandchild alive at her death, and, manifestly, if this contention' be sound, the establishment of the trust under consideration is not violative of the statute above quoted. ' While the question thus raised, if viewed entirely as one of first impression, cannot be said to be entirely free from doubt, yet we think that our court,- in former adjudications, has settled it so firmly as to be beyond successful assault.

In the case of Attorney General v. Wallace’s Devisees, 7 B. Mon. 611, one of the questions adjudicated was identical with that at bar. In that case the language of the testator upon which the question material for our purpose turns was as follows.: “But in the event of the death of my above-named daughter, Amelia Sarah Wallace, without child or children, or should she nof have any child alive at her death, oh should her child or children die without issue, in either event, I do will and bequeath all, or the whole of my estate,” etc. In construing these words the court in its opinion said that “the dying without .issue” meant the death of the children during the lifetime of the life tenant. It is true that in this case the court discussed another construction of the language of the testator and said that, if it was mistaken in the first construction^ still the limitation -over could he upheld under a principle of law which we need not follow; it being 'sufficient for out purposes .to adopt the first construction. In the case of Armstrong v. Armstrong, 14 B. Mon. 333, the question we have here also arose. By the twelfth item of the testator’s will it was provided, among other things: “It is my express desire, and so I will it, that the real estate in the foregoing bequeathments he held sacred for the support and comfort of those to whom it is given, during their natural life, and that the same descend to their children at their demise; hut in the event of any of said children departing this life without issue, or such.issue dying themselves, then that portion so willed to each person, thus departing this life, shall descend,” etc. It became necessary for the court to construe the words concerning the death of the children or their issue, in order to dispose of the argument there made, that the limitation over was contrary to the rule against perpetuities, and' in the opinion it was said in answer to this suggestion: “What was the contingency upon which this limitation was to have its commencement 1 It was the death of one of the children without issue, or such-issue dying themselves. The words ‘dying without issue’ a,re now construed as importing a failure of issue at the time of the death of the first devisee, and not an indefinite failure.” In the opinion in this case, as in the former, the court discussed another construction of the words, under which, assuming that the first was incorrect, the limitation over might he upheld. But in the case of Breckinridge v. Denny. 8 Bush, 523, in discussing the two eases above cited, this court, speaking through Judge Lindsay, said that in each of them- the court rested its opinion upon the construction we have followed, i. e., that the words “dying without issue” were to be construed to mean dying within the lifetime of the first taker under the devise. In the case of Harvey v. Bell, 118 Ky. 512, 81 S. W. 671, 26 Ky. Law Rep. 381, the language was: “Should either of my said grandchildren, Lilia Kate Harvey, Sibble May Harvey, or Prank Wayne Harvey, die without issue of his or her body living, I devise the property herein devised to the one so dying to be equally divided between the remaining ones or their issue.. ’ ’ In the opinion, the court, speaking, through Judge Hobson, undertook to reconcile a seeming conflict among the former decisions of the court, and thus stated the rule upon the question which we have here: “Where an estate is devised to one for life, with remainder to another, and if the remainderman die without children or issue then to a third person, the rule is that the words ‘dying without children or issue’ are restricted to the death of the remainderman before the termination of the particular estate.” The conclusion we have reached is confirmed by the fact that in the ninth clause the testator devises the property tc be held" in trust for his niece, Emma F. Kasey, for life, and her children, after her death, should she have any, and in the eleventh clause he speaks of the property as devised to Emma F. Kasey and her heirs, thus showing he evidently meant the same thing by each of the three expressions he used in regard to the same trust. We therefore conclude that, by the language used in his will, S. W. Kasey intended th'e trust for the benefit of the American JBibie Society to depend alone upon Emma F. Kasey dying without leaving a child or grandchild; and, this being true, the trust is valid so far as the rule against perpetuities is concerned

The second contention of the appellant, that the trust for the benefit of the American Bible Society is too vague and indefinite for enforcement, i's equally untenable as is the first. The charitable trust provided in item 11 is as follows: “To be held by them (Fidelity Trust & Safety Vault Company) as an endowment fund for the American Bible Society, Astor Place, New York, the interest accruing on said endowment after the annual expenses and managing and attending to said fund by my executor have been paid at once to pay to the said Bible society semiannually or annually as it may become due. Said interest to be used by the said Bible society not in paying the debts of said society made heretofore, 'but in distributing the Bible or Word of God to the destitute of the earth.” It seems to us that the trust in question is established with as much' certainty and definiteness as charitable trusts usually are. The American Bible Society is an incorporated charity, engaged in the business of distributing Bibles to the poor and needy throughout the world. The testator showed his knowledge of his beneficiary by giving its particular post-office address in his will, and he then provides that his trustee, the Fidelity Trust & Safety Vault Company, shall hold and manage his estate and pay over the net proceeds thereof annually, or semiannually, as the case may be, to the American Bible Society for the purpose of supplying Bibles to the destitute of the earth. Who the ultimate beneficiaries of a charitable trust are to be* is necessarily uncertain and indeterminate. They cannot be named or located in advance, and therefore the rule has been established that such trusts are sufficiently certain and determinate if the class of the beneficiaries be named in general language or general outline, leaving to the trustee the discretion to select the immediate objects of the class named to be the actual beneficiaries of the bounty of the settlor of the trust.

The case of Leak’s Heirs v. Leak’s Ex’r, 78 S. W. 471, 25 Ky. Law Rep. 1703 (second appeal of that case), involved a charitable trust of much more uncertainty and indefiniteness than the one in hand. There the trust, which was assailed, was as follows: ‘ ‘ Second, I authorize and empower my executor hereinafter named' to sell and dispose of my estate, real and personal, * * * for the following purposes in the order enumerated, and in such proportions and manner as they may be deemed wise and best by my executor : (1) For the aid of a Bible training and missionary school for Christian] workers. (2) For the support of a missionary or missionaries in the foreign field. (3) To aid in carrying on the cause of Bible holiness, including fire baptized holiness work and evangelism. (4) To aid in the support of needy and destitute ministers of the gospel.” But it was upheld nevertheless’. The court, in its opinion, speaking through Judge Burnam, said: “The general doctrine as to charitable bequests, as announced' in a large number of adjudicated oases by this court, is that the beneficiaries may be designated as a class only, leaving the particular object of the testator’s benefaction .to be determined by the trustee appointed to administer it.” In Thompson’s Ex’r v. Brown, 116 Ky. 102, 75 S. W. 210, 62 L. R. A. 398, 105 Am. St. Rep. 194, the charitable bequest was vested in the testator’s executor, to be “by him distributed to the poor in his discretion.” This trust was upheld, as sufficiently definite and certain, in an opinion in which the various Kentucky decisions bearing upon the question are reviewed and discussed.

The trust established is not objectionable because of the time during which the interest on the fund is allowed to accumulate. The accumulating period is only during the life of Emma F. Kasey, and at her death the whole estate passed to her issue, if she had any, or in default of issue to the American Bible Society. The period of accumulation is not in contravention of the rule against perpetuities. Nor is the fact that the trust, if it should come into the hands of the Bible society, is thereafter perpetual, an objection to it. Charitable trusts are, as a rule, perpetual if they are successful, and the rule against perpetuities has no application to charities after the right of enjoyment begins. A charitable trust for the maintenance of a hospital for the poor, an asylum for the indigent insane, for the propagation of religion among the heathen, or the distribution of Bibles, is. all the better in that it is perpetual. Nor does the fact the testator provided, if there should be a failure of the trust, that the property should revert to his. own heirs, militate against its validity. Neither the rule no»r the statute against perpetuities has any application to reversions. In the case before us, the reversion would he the ending of what would otherwise he a perpetual trust, and the testator has only provided for a reversion which would have accrued, to Ms heirs at law without any provision therefor on his part.

Judgment affirmed.