Trustees of Cumberland University v. Caldwell

The chief question presented is the construction of the will of Hannah J. Caldwell, a resident of Alabama, who died in 1888, owning real estate, in which will, executed but a few months before her death, these were the important provisions: "Second. I give, devise and bequeath to my said sister, Sarah Almena Caldwell, to have and to hold during the time of her natural life, all my real estate which I now own or may hereafter acquire and of which I may die seized and possessed. "Third. I give, devise and bequeath the remainder in said real estate after the expiration of my said sisters life estate therein to the trustees and their successors, of Milton College, located at Fayetteville, Lincoln county, Tennessee, in trust to be invested and held by said trustees and their successors as an endowment fund for the benefit of the theological department of said college, subject, however, to the provisions hereinafter named. Said college is now under the control of the Columbia Synod of the Cumberland Presbyterian Church and an effort is being made by said synod to establish the said college as a permanent institution of learning under the care and management of said Columbia Synod. Now, if such effort shall fail and the said college shall pass from the control of the Cumberland Presbyterian Church, then, in either event, I give the remainder of said real estate after the life estate aforesaid, to the trustees and their successors forever of the Cumberland University located at Lebanon, Wilson county, Tennessee, to be by said trustees invested and held as a permanent Endowment for the benefit of the theological department of said University. I direct that my executor hereinafter named, within a reasonable time after the death of the said Sarah Almena Caldwell, shall cause said real estate to be valued by three disinterested persons to be appointed by the probate court of Jackson county, Alabama, and that he shall then proceed after legal notice to sell said lands at public outcry, according to law and execute titles to the purchaser, provided said lands shall sell at such sale for at least seventy-five per cent. of the value so put upon it, and the said executor shall pay over to the trustees entitled thereto as hereinbefore provided, the proceeds of such sale should said lands at such sale bring less than seventy-five per cent. of the value so put upon them, said executor shall declare no sale made and shall again offer the same for sale at such time as to him may seem best." There is no residuary clause in the will. Sarah Almena Caldwell enjoyed possession of the real estate and its use until her death on March 3, 1918. It appears from the terms of the quoted clauses of the will of Hannah J. Caldwell that Sarah Almena Caldwell was given a right of enjoyment during her life. In the third item of the will the testatrix manifested a purpose, in two instances in their order, to establish a succeeding interest in her real property; both efforts being inspired by motives of a religious character, directed to the advancement, in a particular way, of the ministry in the denomination to which she was attached. The first effort was to favor a theological department, the establishment of which was contemplated by the trustees of Milton College (later becoming Dick White College), which was, at that time, under the control of Columbia Synod of the Cumberland Presbyterian Church. The other effort, contingent upon the failure to establish a theological department in the Milton College under the control of the Cumberland Presbyterian church, was to favor the theological department of Cumberland University, at Lebanon, Tenn., an institution in which the trustees thereof maintained a theological department at and before the time the testatrix, Hannah J. Caldwell, died. The beneficiary of both testatrix's efforts, in the contingency stated, was the defined theological department of the mentioned institutions. It is manifest from the terms employed that the testatrix's object was to bestow her bounty upon a specific department, viz. a theological department, which, it is quite clear from this record, was a department specifically designed and so conducted as to give instruction to persons preparing themselves for the ministry, a department of the institution that, *Page 592 through its curriculum and course of study, led to the attainment and reception of the degree appropriate to graduates into the ministry. See Shepard v. Shepard, 57 Conn. 24, 29,17 A. 173; Church v. Bullock, 104 Tex. 1, 109 S.W. 115,16 L.R.A. (N.S.) 860, 865. It results, necessarily, that in neither instance did this testatrix intend to constitute the entities, Milton College or Cumberland University, devisees under her will. She made the trustees of Milton College, and, in an event, the trustees of Cumberland University, the agency to carry out her purpose, and, according to her design, committed the application of the subject of her gift to the specific object clearly prescribed in her will, viz. the theological department permanently to be established at Milton College under the conditions she prescribed, and, failing which, that already established at Cumberland University. Subject to the life estate assured her sister Sarah Almena, the method she chose to effect her intent was the creation of a trust; (a) the subject of the trust being the real property then owned by her; (b) the administrators thereof being, first and consistently with the primary beneficiary, the trustees of Milton College, and, secondly, upon a contingency particularly defined, the trustees of Cumberland University; and (c) the beneficiary, in either event, being the theological department of one or the other of the institutions named. The mere fact that the department specified was charitable in nature did not operate to make her expressed purpose and design any the less a trust. The effect of her will, in this particular, was to apply to the designated beneficiary the fruit of her devise. The designation of the trustees to administer it was not of the essence of her intent. They were but agencies, means to accomplish her intent. In terms in her will she recognized the fact, subsequently confirmed, as the evidence conclusively shows, that the creation of the status upon which she hinged the designation of the theological department of Milton College was in a state of negotiation only, had not been established, but an effort was being made to establish it; and the devise itself, not simply its application or availability, was made to depend upon the subsequent creation of the designated beneficiary, viz. a theological department at Milton College, under the control of the Cumberland Presbyterian Church. As stated, this conditional provision failed because the beneficiary in contemplation, to be thereafter created, never came into existence. Accordingly the primary purpose of the testatrix in establishing the trust was aborted. On the failure, the extinction of a beneficiary of a trust, committed to trustees for their specific execution thereof and for no other purpose, unless that contingency is provided for by the testator, the law makes the disposition which the testator has failed to make. Abercrombie v. Abercrombie, 27 Ala. 489, 496, 497; 1 Jarman on Wills (6th Ed.) *527 et seq. This failure of the specific trust cannot be averted, or its fruits otherwise applied by recourse to the cy pres doctrine, which does not obtain in this state. Woodruff v. Hundley, 147 Ala. 287, 292, 39 So. 907. On June 9, 1909, the board of trustees of Cumberland University took this action with reference to the theological department of the institution: "In view of the report of the dean of the theological faculty, and of the known conditions resulting from the strife going on and out of the courts, between the union and nonunion elements of the church, the existence of which is deeply deplored by this board, we are of the opinion that the overthrow of the theological school has been accomplished, and it is utterly useless for the board to further attempt to maintain it as a department of the University, and we now, with sorrow, declare that the department has failed, and it is hereby discontinued." This department was thereby abolished — discontinued. The evidence otherwise concludes to the same effect. It has not been since re-established or revived. The fact that subsequently one instructor was assigned to teach some subjects or phrases of subjects that would be appropriate or were appropriate to the course of instruction given in a theological department did not operate to avoid the abolition, the discontinuance of the department by the board of trustees of Cumberland University, nor did that effect to revive the department after its abolition. The testatrix's clear design was to afford means to sustain a department of the character designated, not to supply funds to give instruction, through an agency that did not, in any reasonable sense, constitute a department devoted to the full preparation of persons for service as ministers qualified to proclaim that faith. It is insisted that, because the charter granted by the Legislature of the state of Tennessee provides: "That the money and property constituting the general endowment fund, or that of any particular department or professorship, shall never be diverted from the object for which it was given, or raised, to any other purpose, without the consent of the donor. But in the event that any such professorship or department should be discontinued or fail to exist, the trustees shall have the power to determine what other application shall be made of such funds raised or given for its endowment, for the interests of the institution" — the board of trustees of Cumberland University may employ the property here in question, or the income therefrom, to the maintenance and conduct of some other department *Page 593 or agency than a theological department, germane to the institution's purpose and activity. Allied with this contention is the suggestion that the testatrix created the trust in contemplation of the above-recited charter power, and must be held to have implied an intent on the part of the testatrix to clothe the trustees with the authority to apply the substance or the income of the property to the maintenance of another department or activity of the institution. This proposition is unsound. The trust was not created for the benefit of Cumberland University as an entity, but, on the contrary, the will expressly designated a single, distinct department of the institution the cestui que trust to enjoy the benefit of her gift, making no provision whatever for another beneficiary to take the place of the theological department in the event that department ceased to exist. There is no indication or intimation that the testatrix intended to confer on the trustees the authority or discretion to substitute, under the quoted charter power, any other beneficiary than the one she designated. The will does not appropriate, by implication or otherwise, the liberty of application or substitution the charter power before reproduced purports to confer on the trustees of Cumberland University. The decision in Van Kleeck v. Reform Church, 20 Wend. (N.Y.) 457, cited on the brief for appellant, is without application to the inquiry here presented. The direction to the executor, in the third item, ante, to sell the land after the death of Sarah Almena Caldwell, and according to a prescribed method, and pay the proceeds to the trustees designated, was incident to the trust thereby created, failing which, as before ruled, this authority and its particularly defined object ceased to be effective. The original certificate filed in this court only recited an appeal on the part of the trustees of Cumberland University. Cross-assignments of error were made on the transcript by solicitors for the appellees, G. B. and E. H. Caldwell, and also by the solicitor for D. K. Caldwell as administrator of the estate of Hannah J. Caldwell, deceased. The original opinion, delivered on June 19, 1919, expressed the view — enforcing rule 3 of Supreme Court Practice (Code, p. 1507) — that these cross-assignments could not be considered; none of the conditions to the right to cross-assign error being disclosed by the record. Jones v. Peebles, 130 Ala. 290, 304,30 So. 564. After the decision had been announced, it was discovered that in the "Certificate to Record" the register recited the fact that G. B. and E. H. Caldwell had perfected a cross-appeal, giving security for the cost of their cross-appeal. There was no express submission of the cross-appeal along with the submission of the appeal in chief; but, since the cross-appeal was in fact perfected by G. B. and E. H. Caldwell, and no question was raised on the submission of the main appeal, the court does not regard that irregularity as of sufficient consequence in this cause to deny the cross-appellants the benefit of the cross-assignments made for them. As to the cross-assignment attempted to be made by D. K. Caldwell, administrator, rule 3, Code, p. 1507 (Jones v. Peebles, supra), prevents its consideration; he not having perfected a cross-appeal, and there being no joinder in his assignment, and no indorsement on the transcript of consent to his cross-assigning errors. The cross-appellants complain, in substance, that the court below erred in deciding — for the purpose of dividing the proceeds of this land, which was sold in accordance with the agreement of the parties to this cause — that the abolition of the theological department by the trustees of Cumberland University on June 9, 1909, fixed the point of time when the existence vel non of the beneficiary of the trust, viz. the theological department of Cumberland University, was determined, whereupon the then heirs at law of Hannah J. Caldwell, deceased, became entitled to the property. The result of this conclusion was to vest in Almena Caldwell, the then living life tenant, an additional undivided interest in the estate. This was error. The time when the existence vel non of the beneficiary of the validly created trust became indispensable to the effectuation of the testatrix's purpose was the time when the supervening use and enjoyment of the property by Almena Caldwell terminated upon her death in 1918. The availability and application of the substance of the trust was postponed until Almena Caldwell had enjoyed the use of the property while she lived. Between the probate of the will of Hannah J. Caldwell, deceased, and the death of Almena Caldwell in 1918, there was neither opportunity nor occasion to ascertain the existence of the beneficiary of the trust the will designated. It was only when the application of her bounty, through the trust she created, became a duty under the terms of her will, that it was necessary to ascertain whether the beneficiary designated existed. No other conclusion is, we think, reasonably possible, in view of the terms in which the testatrix set down her primary intent to constitute a theological department of Milton College the beneficiary of the trust she created, upon conditions, defined in her will, that were to be supplied by future action without express limitation upon the period in which the existence of these conditions should be ascertained. It is manifest from the terms of the will that the design of the testatrix, with respect to Milton College, would have been satisfied if, after her death, Milton College had been permanently established, with a theological *Page 594 department, and its control had been permanently committed to the Cumberland Presbyterian Church; she not having expressly prescribed the period within which these conditions should be afforded or ascertained. If this premise is correct, it is evident that the happening or nonhappening of events, prior to the death of Almena Caldwell, could not avail to furnish a basis for ascertaining the existence vel non of the beneficiary of the trust. The only limitation reasonably deducible from circumstances disclosed by the terms of the will and subsequent events is that the beneficiary should be ascertained at the point of time when the trust should have actually come to be administered and applied, viz. upon the death of Almena Caldwell. It results from this conclusion that the persons entitled to this property — the trust having failed for the want of a beneficiary — were the heirs at law of Hannah J. Caldwell, deceased, other than Almena Caldwell, living at the time Almena Caldwell died, viz. March 3, 1918. The decree is only affected with reversible error in the respect that it (in effect) fixed an earlier date or occasion at which the ascertainment of the existence vel non of the beneficiary of the trust should be undertaken, thereby affirming the right of Almena Caldwell to dispose by will of an interest in the property to which she did not, in life, ever become entitled. To this extent only is the decree reversed. It is otherwise affirmed on assignments of error considered here. The court below will correct its decree in the particular indicated. The costs of appeal will be paid out of the fund in the custody of the court below. Affirmed in part, reversed in part, and remanded. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. On Application for Rehearing.