Kelly v. Nichols

21 A. 906, 17 R.I. 306, 1891 R.I. LEXIS 22

• Court: Supreme Court of Rhode Island
• Decided: March 14, 1891
• Status: Published

Opinion

Stiness, J.

Joseph Greene, of Jamestown, died in 1840, leaving a will, by which he gave his real and personal estate to trustees, to be by them held in trust, after payment of his debts, funeral expenses, and the care of two sisters during their lives, for the following purposes forever, namely: First, “ that the graves,” of his sisters and himself, “ should be, from time to time, kept in good and decent repair; ” second, that the trustees shall “ distribute and dispose of the net rents and profits of my said farm according to such directions, limitations, and instructions as I have hereinbefore given, or may hereinafter give, and also according to such as I shall more particularly give unto them in an instrument of writing under my hand and seal, bearing even date with these presents, and which shall be forever deemed and taken to be of the same force and virtue with this my said last will and testament; ” third, that his clock shall continue to stand in the southeast corner of his east front room and be kept in repair by his trustees, so long as they may deem it proper and practicable; “ and further my will is, that inasmuch as my house has been open during my lifetime (as well as for generations back, in the lifetime of my ancestors of the same name), for the reception and entertainment of ministers and others travelling in the service of truth, so it shall continue to be a place for the reception and entertainment of such forever, in conformity with the preamble of this, my last will and testament, and in the discretion of my trustees. And my will further is, that my west front room chamber shall be kept in constant readiness to lodge such persons as shall cross over or visit the island in the course of their labors in the gospel of Christ, and others who are not ministers, but who are travelling to meetings or otherwise in the service of truth, and that the said room be kept furnished with two bedsteads, two beds, two bolsters, and two pair of pillows, and other necessary furniture.”

The instrument in writing referred to in the will and probated as a part of it is devoted mainly to a particular designation of the class of persons entitled under the will to distribution of the net rents and profits of the farm, closing with these words: “ It is the support of the principles of truth as originally held by the first Friends, which is to be constantly kept in view, and not of the society in an impure and degenerated state. The particular cases in which you shall apply the means in your hands to the personal relief of the poor, or otherwise in the service of truth, 1 leave to your judgment, and to that of your successors ; only, I would have you and them, as your means shall increase and allow it, to use a part thereof in the reprinting and circulating such of the writings of the early Friends as are likely to be most useful, and otherwise go out of print and be lost, as well as those of more modern times, written in defence of the same principles, and to set forth the purity and spirituality of the gospel dispensation. And I also desire, if it be practicable, that you and your successors would, from time to time, place such tenants upon my farm, and in my house, as shall make it an agreeable and comfortable home, in the best sense, to those whose lots may be cast there in the course of their labors and travels in the service of truth.”

An inspection of the will shows that the testator was an earnest believer in the doctrines of the early Friends, and was profoundly attached to the precepts of the society. To his mind they comprehended the sum and substance of the truth, and only such as were in sincere accord with those doctrines and precepts could be looked upon as the genuine successors of the early and ancient Friends, and “faithful standard-bearers and testimony-bearers to and for the same divine, eternal truth.” He regarded those whose religious views differed from his standard with keen antipathy and alarm, counting them as heretics and apostates. He desired to do what he could for the honor and spread of the truth, and evidently thought this could best be accomplished by promulgating the orthodox faith in meetings and in books. He therefore pointed out the writings of the primitive Friends which should be taken as the standard of orthodoxy, and to promote his scheme he devoted his property, chiefly, to the reception and entertainment of ministers and others travelling in the service of truth, according to such standard, and in part, if the income should allow it, to the publication and distribution of the writings of early Friends. The question before us is, whether the testamentary gift is valid as a gift to charitable uses.

This question can only be determined by the purposes for which the gift is made as disclosed in the will. The first designated purpose is the care of the graves. Among all classes there is a pervading sentiment of reverence for the burial-places of the dead, which springs naturally from the Christian belief in the resurrection of the body. This sentiment is recognized in this State and elsewhere, by the creation of corporations for maintaining and adorning cemeteries, and by statutes which allow town councils to receive and hold funds in trust for the care of burial lots. However general and commendable this sentiment may be, and however desirable it may be that the graves of the dead be decently and reverently cared for, nevertheless we do not think a bequest of this kind falls within the limits of a charitable use. It is not a gift in aid of any public object, nor for a purpose which affects the public in any way. It benefits no one. Its purpose is purely private and personal. It seeks to create a perpetuity simply to insure the care of the testator’s own burial lot. It does not run to a corporation created for this special purpose or authorized by its charter to receive such gifts, but to trustees in perpetuity. It is now well settled in England that such bequests are void. Cases on this subject are fully collected in Tyssen on Charitable Bequests, Chapter "VIL, and also in Jones v. Habersham, 107 U. S. 174, 183, where Judge Cray says: “ In England there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good charitable use. Down to the time of the American Revolution, as by the civil law, it appears to have been held that it was. According to the later English cases it is not.”

We think this latter view is to be regarded as the rule in this country. It is expressly so held in Bates v. Bates, 134 Mass. 110; Johnson v. Holifield, 79 Ala. 423; Piper v. Moulton, 72 Me. 155; Coit v. Comstock, 51 Conn. 352; Fite v. Beasley, 12 Lea, Tenn. 328; Hornberger v. Hornberger, 12 Heisk. Tenn. 635. See, also, Giles v. Boston Fatherless & Widows’ Society, 10 Allen, 355. In the Amer. & Eng. Encyclopaedia of Law, vol. 3, tit. Charities, § 8, it is stated: “ A trust to erect and maintain monuments or tombs of the donors or others is now generally upheld in this country, though not in England.” An examination of the three authorities cited in support of this statement shows that it is not warranted by the decisions in those cases. In Jones v. Habersham, 3 Woods, 443; 107 U. S. 174, a bequest to keep a burial-place in good order was held to be valid, because the code of Georgia enumerates among charitable uses, “the improvement or repair of burying-grounds or tombstones.” In Dexter v. Gardiner, 7 Allen, 243, a bequest in trust form, “ the income of which is to be appropriated for the benefit of the Friends’ meeting,” was held not to be invalid, because the purchase and repair of burying-grounds is regarded by Friends as one of their religious duties; to which under their usages and discipline they apply their funds. It was a good bequest to a religious society for religious purposes, and the court says: “ Where a denomination of Christians regard the providing and oversight of burying-grounds as a religious duty, accompanying burials of the dead with religious services, as is usual among most sects of Christians here, it is difficult to see by what principle this religious duty can be distinguished from that of maintaining and repairing meeting-houses, in respect to the statute.” That case, therefore, stood upon a very different ground from a bequest like the one before us. The other authority cited is Swasey v. American Bible Society, 57 Me. 523. The court, in its opinion, indeed, says that bequests for the repair of tombs have been recognized as charitable; but, very surprisingly, it cites as its only authority for the statement two cases which decided exactly the opposite. Perry on Trusts, § 706, states that such bequests have been held good, but he cites only the cases above referred to. We therefore think that both English and American authorities are in accord in declaring that a bequest of this character is not a charitable bequest.

The second designated duty of the trustees to keep the clock in repair requires no consideration. It is not claimed that this can be sustained as valid.

The third and principal object of the trust is that relating to the entertainment of ministers and others, travelling in the service of truth, and the maintenance of his house as a hospice for that purpose. The testator evidently believed it was necessary to proclaim the true faith, and that orthodox preachers and faithful believers should be encouraged to keep up their visits to the island where he lived, “ in the course of their labors for the gospel,” by the assurance of an open house for their welcome and stay. His idea was to promote the teaching of truth by the testimony of min isters and others who should attend the meetings of Friends there or elsewhere. In the abundance and minuteness of directions for determining who should receive the benefit of his bounty, he shows such a zealous desire for the spread of the truth as he believed it, that one is liable to mistake his fervent, though vague, expectation for the direction and trust of the will. The question is not alone what result did he hope to subserve, but what did he order to be done, which determines whether or not he created a charitable trust. The simple thing he orders to be done is to keep his house open forever to receive and entertain those who may be travelling that way, to or from a meeting of Orthodox Friends. Leaving out of account the objection which is made that the court cannot enforce such a trust because it cannot determine who would be entitled • as true believers, within the meaning of the will, we do not think this provision is for a charitable use. It is not a.gift to a religious society, nor directly to religious objects, but only for hospitality; which is the exercise of benevolence and liberality rather than charity, as that term is used in law. If the gift be not to a charitable use, the court cannot make it such simply because it sees the testator hoped its effect would be to accomplish a charitable end. The books are full of cases where an indefinite charitable design was plain enough, but where the testator failed to make a gift to a definite charitable use. In such cases there can be no application of the doctrine of cy pres. In this case the testator hoped to aid the cause of truth after his death as he had done in life, and as he says in his will his ancestors had done before him, by encouraging true believers to go about bearing testimony, in the welcome and comfort they would find at his house. In re Hewitt, Mayor of Gateshead v. Hudspeth, 49 Law Times Rep. N. S. 587, a bequest by which the income was to be expended in acts of hospitality or charity was held to be void. See, also, Morice v. The Bishop of Durham, 9 Ves. Jun. 399; Attorney General v. Haberdashers’ Go. 1 Myl. & K. 421, 428. But it is claimed by the respondents that the trust, should be interpreted as one for the benefit of the poor. We should be quite willing to adopt such a construction if we could do so, but we do not see that the language of the will allows it. The house is to be kept open for the reception of ministers and others without regard to their condition, and subject only to the requirement that they shall be travelling in the service of truth. In the preamble, he says his iiitent is, “ that such part of the estate which has been through divine favor bestowed on me, and which is hereinafter described, shall, according to the directions, limitations, and instructions hereinafter given, be singly, strictly, and faithfully applied only in the service of the same, and, as far as may or can be the case, to the honor and spread thereof, and to the comfort and relief of such persons as are and shall be true and practical believers in, living witnesses of, and faithful standard-bearers and testimony-bearers to and for the same divine, eternal truth, above mentioned, forever.”

It is claimed that the words, “ comfort ” and “ relief ” indicate a class of believers to whom relief is necessary. If this were all, perhaps we might say so; but he expresses his intent to minister to the comfort and relief of believers, strictly “according to the directions, limitations, and instructions hereinafter given.” When we turn to those instructions, in the declaration of the trust, we find no discrimination in favor of the poor, but all who travel in the service of truth are embraced within their terms. The only reference to the poor is in the instrument appended to the will: “ The particular cases in which you shall apply the means in your hands to the personal relief of the poor, or otherwise in the service of truth, I leave to your judgment and to that of your successors.” While this implies that some portion, of the funds may be used for the personal relief of the poor, it by no' means limits or directs the application of the funds to such use; and the phrase “ or otherwise in the service of truth ” plaees_a use for the poor, at most, only as an alternative with the other uses which the testator had already pointed out in his will. The directions in regard to the entertainment of ministers and others are too explicit, and the reference to the poor too vague, to allow the former to be ignored, or even to be regarded as a subordinate purpose of the will. He even desired that the farm should be so rented as to aid in making it an agreeable home for those whose lots might be cast there in the course of their labors and travels. Taking this reference to the poor in connection with what immediately follows in the same sentence, it is doubtful whether it had reference to anything more than a surplus in their hands, a part of which they migj'iit, if they should see fit, devote to the relief of the poor; for the 'clause goes on, “ Only I would have you and them, as your mea’iis shall increase and allow it, to use a part thereof,” etc. We do not think the testator intended this instruction or statement tcp be anything more than incidental to the scheme, which he seems to have had • clearly in mind; leaving such an application of the .funds, if there should be any, to the judgment of the trustees. Our opinion is, that the will, in the particulars we have thus far/ considered, does not create a charitable trust.

But in the" passage already quoted from the appendix to the will we find the direction for reprinting and circulating writings of the early Friends, as well as those of modern times, which set forth the purity and spirituality of the gospel dispensation. A trust for the publication of religious books is recognized as a charitable trust; of which the case of Thornton v. Howe, 31 Beav. 14, relating to the publicátion of the works of Joanna Southcote is a notable example. See, also, Simpson v. Welcome, 72 Me. 496. The references in the will to the kind of books thé testator had in mind sufficiently establish the character of those to be published, and relieve the provisions of the trust from uncertainty on this point. Indeed, it is the one thing he labored to make clear. Here, then, we find a valid trust with reference to a portion of the income.

In cases where a part of an estate is given upon am invalid and a part upon a valid trust, two rules have been laid down and seem now to be established in England.

First. If an ascertainable portion of a fund or an estate be given on a void trust and the residue on a good trust, the residue has the benefit of the failure of the prior trust. In re Birkett, L. R. 9 Ch. Div. 576; In re Williams, L. R. 5 Ch. Div. 735; Dawson v. Small, L. R. 18 Eq. 114; Hunter v. Bullock, L. R. 14 Eq. 45; Fisk v. The Attorney General, L. R. 4 Eq. 521.

Second. If an unascertainable portion be given upon a void trust and the residue upon a valid trust, the whole fails. Chapman v. Brown, 6 Ves. Jun. 404; Fowler v. Fowler, 33 Beav. 616 ; In re Taylor, Martin v. Freeman, 68 Law Times Rep. N. S. 538; Limbrey v. Gurr, 6 Madd. 151; Attorney General v. Hinxman, 2 Jac. & W. 270 ; Cramp v. Playfoot, 4 Kay & J. 479.

Without stopping to consider whether the two English rules can be reconciled upon principle, the latter rule is unquestionably sound. It is based upon the reason that the whole gift is void by reason of the uncertainty of its parts. If the whole income could be spent upon the invalid trust, there would be no surplus for the charity. If the court were to assign a definite proportion to the charity, it might be more or less than the testator intended, and so it would be the court’s bequest rather than the testator’s. In the present case the cost of the care of the burial lot could be easily ascertained, if it were material, and also the cost of keeping the clock in order ; but the portion required for hospitality is unascertainable. It depends upon the numbers who may apply for it, and upon the judgment of the trustees. Nor can the amount be determined by the provision for reprinting books. That is as indefinite as the other. There is no very explicit direction to publish books; but assuming it to be so, only a part of the income is to be thus used, and that “ as their means shall increase and allow it.” This implies what their means will allow after discharging the other trusts of the will. But what part shall be so used, supposing a balance could be ascertained? The will does not say. The whole income might be applied to hospitality, and where, under a will, a bequest may be applied to other than charitable uses, the bequest is invalid. Pell v. Mercer, 14 R. I. 412, 442.

The language of Park, C. J., in Coit v. Comstock, 51 Conn. 352, 386, is applicable to this case. “ The bequests as they are, although some portion.of the income is to-be devoted to a charitable purpose, cannot be supported. If it were otherwise, it would be in the power of an individual to make a perpetuity of property to any extent, by devoting some small portion of the undivided income thereof to some charitable purpose. A little charity in such a case cannot preserve the entire bequest.”

We are, therefore, of opinion that the primary purposes of the trust are such as cannot be held to be charitable; the trust for the burial lot being purely private and personal, and the other only to hold the testator’s homestead in perpetuity as an hospitable resort for adherents to the school of his religious belief; that the reference to the poor is so vague, and the trust for the reception of all such adherents so explicit, as to preclude the inference of a general, charitable intent, and to show only a particular intent to maintain the hospitality of his house; that these trusts are so controlling in their nature, so unascertainable in their scope, and so inseparable from the trust to publish religious books, that no part of the bequest can be enforced as a charity, and therefore that the whole is invalid.

Charlas E. Gorman & Patricio J. Galvin, for complainants. William Gilpin, Thomas C. Graane & Arnold Green, for respondent Nichols, trustee. Horatio Rogers, Attorney General, pro se ipso.

Note. — The above opinion was affirmed after hearing upon bill, answers, and proofs. See 18 R. I.