Dornette v. Allais

OPINION By ROSS, J. This is an appeal on questions of law from a declaratory judgment entered by the Court of Common Pleas of Hamilton county, Ohio, in which that Court announced answers to seven interrogatories propounded by the plaintiffs, Trustees of the Woodward College and High School, and passed upon the prayer of a cross-petition of a defendant, the Board of Education of the School District of the City of Cincinnati. Other defendants were the Trustees of the Hughes Fund, the City of Cincinnati, and the State of Ohio. The members of such' Board of Education are the appellants. The evidence in the trial court consisted of a stipulation which included a certain pamphlet attached to the petition as an exhibit. This pamphlet contained copies of several trust deeds, establishing a trust and special acts of the legislature of Ohio appertaining thereto. It appears that since the year 1851, the high school system of the City of Cinncinati has been under the direction of an anomalous body, entitled The Union Board of High Schools, which was created by virtue of a contract entered into by the “Trustees and Visitors of Common Schools of the City of Cincinnati on the "one hand and the Trustees of Woodward *3 College and High School and Trustees under the Will of Thomas Hughes, on the other.” The powers and duties of the Woodward Trustees and the method of their appointment were established by trust deeds from William Woodward and confirmed by special acts of the legislature in 1826 to 1831. In 1883, by legislative act, the method of selecting such trustees was changed from that provided for in the trust deeds. William Woodward died January 24, 1833. Prior to his death, he executed certain deeds conveying now valuable areas in the City of Cincinnati to certain trustees, the revenue to be used for the education of the poor children of the City of Cincinnati. A special Act of the legislature, January 15, 1831, provided for the incorporation of such trustees, specifying the beneficiaries of the trust as “such children only as have no parents living within the limits of said city of sufficient ability to provide for their instructions.” On the property conveyed by one of such trust' deeds from William Woodward to such trustees has been erected by such Board of Education a high school building. This same property originally was occupied by a building erected by the trustees and succeeded by other buildings erected for high school purposes by the Board of Education. The chief bone of contention between the adversaries in this action is whether or not the Board of Education should pay the Woodward Trustees for this property now used by the Board of Education for general high school purposes, or, whether the use thereof by such Board of Education is in conformity to the terms of the trust conveying it to the Woodward Trustees. A more general problem is also presented involving this specific question — whether the use of revenue from the property conveyed by William Woodward to his trustees mav be used for general educational purposes in the school district— being commingled with the general funds of the Board raised by taxation, and still the purposes and directions of the trust be substantially fulfilled? The appellants maintain the affirmative on both questions. Such inquiries, which in substance cover the full scope of the interrogatories presented by the assignments of error require an examination of the several conveyances and special legislative acts as well as the development of the educational system of the City of Cincinnati, its control, management and administration under the Union Board of High Schools and the Board of Education of such City. The original deed of Woodward (Nov. 24, 1826) contains certain expressions of the grantor’s purpose and intent, which *4 define the limitations ol the trust and- reflect directly upon the questions presented. It is stated therein: “in consideration of the better educating of the poor children of Cincinnati,” “to be held, used, and applied for founding and maintaining a free school for the education of poor children of the said city of Cincinnati, in reading, writing, arithmetic, and English grammar; the said school to be established in the said city of Cincinnati, and to be managed and directed by the grantees in this deed named, and their successors perpetually,” “The said two trustees first above named to procure from the legislature of this state an act of incorporation as soon as convenient, and when such act is passed to make such conveyance as may be necessary for vesting the property and right, title, and interest thereof in such incorporation, and the trustees thereof in manner aforesaid forever.” “The benefits of this trust not to be confined to any particular religious sect or denomination, or the doctrines of any particular religious sect to be taught in said institution, nor any persons to be trustees or teachers thereof not possessing good moral characters and believers of doctrine of the Christian religion.” In the special act of incorporation (January 24, 1827) appears also certain pertinent statements: “Be it enacted by the General Assembly of the State of Ohio, That Samuel Lewis, Osmond Cogswell, and Jonathan Pancoast, trustees of the said land, and their successors in office (appointed as hereinafter mentioned), be and they are hereby created a corporation and body politic by the name and style of “The Trustees of the Woodward Free Grammar School,” by which name they are hereby made capable of holding, using, and improving the said property,” “Provided always, that the said trustees shall have no power to grant, transfer, or convey the said lands so vested in them, except as hereinafter provided.” “That such children residing in the City of Cincinnati, and such children only as have attained the age of five years or upwards, and being under the age of sixteen years, and have no parents or other near relatives, living within the' limits of the said city, of sufficient ability to provide for their • instruction in the common and necessary branches of an English education, or whose parents or other near relatives, though being of sufficient ability, utterly neglects and refuses to provide such instruction for them, shall be admitted into *5 the school or schools which may hereafter be established, under this act: Provided, however, that the trustees may, at any and all times, admit other children into such school or schools, upon condition of receiving therefor what to them shall seem a reasonable compensation.” “That the instruction afforded to the children coming within the provisions of this act, shall be confined to the common and necessary branches of an English education, and shall not be extended to the higher branches of such an education, so long as the fund arising from said lands is insufficient to provide the means of instruction for all the poor children in the said city of Cincinnati; that the trustees shall have the power to decide upon the eligibility of applicants for admission,” “the said trustees and their successors shall have power to make beneficial leases of all or any part of the said lands, for the term of fifteen years each, or for a longer period, if the extended lease contain a clause of revaluation every fifteen years.” The act provides for the appointment of successor trustees by the Mayor and Council of the City of Cincinnati or the Judges of the Common Pleas Court, and for annual accounting of the trustees to such authority. It is further provided: “It shall be the duty of the said trustees to lease the said lands in the most beneficial manner, and as soon as a sufficient sum of money shall be raised thereby, to locate and erect a commodious building, to be used and occupied as a school-house; to procure teachers of good morals and well qualified to instruct, and to receive so many of the above described children as the said building will accommodate and the state of the funds will allow;” “but in case the said trustees, or either of them, on application made as aforesaid, shall refuse to render his or their account as aforesaid, then he or they shall be considered as having abandoned the trust, and the said mayor and aldermen, or the said Court of Common Pleas as aforesaid, may proceed to appoint his or their successor or successors, as is provided in the fifth section of this act, and shall also have full power to compel the said trustee or trustees to account for the same, by an action at law or a suit in chancery, and apply the proceeds of the said action or suit to the purposes aforesaid.” In a deed of confirmation from William Woodward (March 24, 1828) the grantor, ratified the incorporation of *6 the trustees and regranted to the incorporated trustees the lands mentioned in the first deed and iterated the limitations and provisions applicable to the trust as contained in the first deed. In 1828 the first “common school” was opened to the public. When a common school education thus became available to all children of the City, both poor and rich alike, William Woodward realized that the beneficiaries of his generosity must be changed as those provided for in his eariler deeds and the special act, to-wit, the “poor children of the city of Cincinnati” were now fully provided for under the general system of. common school education, furnished at the expense of the tax payers of the City. This becomes apparent by the terms of his deed to the incorporated trustees: (May 25, 1830) “whereas, divers good and sufficient reasons exist that render it desirable (for the purpose of making the conveyance aforesaid more extensively useful) to change to a certain extent the direction or application of said fund, so as to enable the said trustees and their successors in office to establish a high school for teaching the higher branches of learning and literature with the arts and sciences: * * * Therefore, * * * This indenture witnesseth, that the said William Woodward, in consideration of the premises, and in consideration of the sum of one dollar in hand paid by them, the said trustees, has given, granted, aliened, conveyed, released, and confirmed, and by these presents doth give, grant, convey, and release, and confirm until the said Samuel Lewis, Osmond Cogswell, and Lewis Howell, in their corporate capacity as trustees * * * the lands, tenements, and premises referred to and described in the said deeds of conveyance, to have and to hold the same unto them and their successors, in their corporate capacity, with full power to appropriate the funds and lands and property held by them as aforesaid, to the purpose of education in any and every branch of learning and science, as to them shall appear most useful, and also with full power to procure an alteration in their charter, so as to allow them in their corporate character to establish a high school in the city of Cincinnati, for the uses and education of that description of children and young men as is pointed out in the first dee.d above referred to, the said William Woodward declaring hereby his assent to such alteration of the charter aforesaid, as shall by the said trustees and their successors in office and by the General Assembly of the State of Ohio, be thought most likely to extend the advantages *7 of learning and science among those who have not the means of procuring such advantages themselves,” It is particularly illuminating as to the continuing intent of Woodward, in view of the present situation confronting the Court, that Woodward thus immediately extended the scope of his generosity to include a new class of poor youth (“young men”), being aware that those who would qualify for the class of beneficiaries in the earlier deeds were now provided for in the public free schools. The same situation has occurred now after the grantor is dead. The free public school system has been extended not only to include students on the grammar schools, but also those qualified to attend high schools. What would William Woodward have done when presented with this situation? Is it not perfectly apparent that he would have again accepted the situation, and again extended his bounty to those not provided for by the public school system, in other words, again modified the trust to extend to education of the needy in college or university, abandoning those otherwise provided for. By deed (December 16, 1830) Woodward conveyed to his trustees the premises now occupied by the present Woodward High School. This deed contains the following provisions: “in consideration of the better educating the rising generation” “Provided always, that the lands and tenements hereinbefore described are' to be appropriated to the purposes of education, and a high school shall be established and the buildings for the same erected on said premises as soon as in the opinion of the trustees thereof it shall be thought convenient and proper, in which school shall be taught all the branches that are usually taught in high schools, and all other branches that shall be directed by the trustees thereof, the school so to be founded to be called “The Woodward High School of Cincinnati,” “and for educating in said high school the same description of children as are provided for in the deed executed by the said Woodward on the twenty-fourth day of November, eighteen hundred and twenty-six. The said high school, with the premises hereinbefore described, and all the property, real and personal, belonging thereto, and every part and parcel thereof, to be managed by and under the exclusive control of five trustees,” “It is part of this conveyance and a condition annexed *8 that said Lewis and Cogswell shall have the privilege of educating each two scholars, making in the whole four scholars in said high school continually free and clear of all expense as the only pay they have or ever will receive for their efforts to make the donation aforesaid available, and their successors shall be entitled to the same privilege forever so long as they remain trustees thereof.” The last quotation from this deed in its character, of an exception emphasizes most strongly the continuing determination of the grantor that the trust as a whole is for the benefit of the poor qhildren of the City. In a special act of the legislature (January 15, 1831), similar privileges, powers, limitations, and restrictions, as those found in the act of January 24, 1827, appear, only the new purposes of the trust being recognized, extending to high 'school facilities. On October 24, 1831, Woodward High School, as so provided for in deed and act of the legislature was opened in a two story building, erected upon the lot so deeded, and now occupied by the present Woodward High School. The high school as such was functioning in conformity to the provisions of the trust, when William Woodward died on January 24, 1833. On January 27, 1835, the Trustees, by act of the legislature, were empowered to mortgage the trust property. On June 7, 1836, the Trustees, by act of the legislature, were authorized to establish a college: “Be it enacted by the General Assembly of the State of Ohio, That the trustees incorporated by the act to which this is an amendment, and their successors in office, shall have power to establish a college department, to be governed and managed by said trustees, and their successors in office, to be called ‘The Woodward College of Cincinnati.’ “Sec. 2. That the said trustees, and their successors in office, shall have power to confer all such degrees as are usually conferred in colleges and universities: Provided, that they shall not establish a medical, law, or theological department, or confer degrees in medicine, law, or divinity. “Sec. 3. That the said trustees, and their successors in office, shall be authorized to appropriate such part of the funds of the institution as to them shall appear proper, to defray the expense of educating in such college that class of students described in the second section of the act to which this is amendatory:” On January 25, 1836 — “Woodward College of Cincinnati” was opened in the same building occupied by Woodward *9 High. School. In 1841, a third story was added to the building. On February 11, 1846, an act of the legislature was passed permitting the educational authorities in Cincinnati and Dayton to establish high schools — with a provision that the exercise of such privilege should not jeopardize the operation of the common school or lower grades. And then in 1847 the first public high school was opened in Cincinnati and except for the operation of “Woodward College” again the beneficiaries of the trust, the poor youth of Cincinnati, received freely without cost, at the expense of the taxpayers of the City of Cincinnati that which was provided for them by the trust of William Woodward. Is it not apparent, that if William Woodward had been still able to modify his trust provisions, that he again conforming to his past conduct would have taken measures to again provide for these same beneficiaries, the poor youth of Cincinnati, by providng for them as far as the revenue of the trust would permit a college education? Apparently, the trustees had anticipated just this very contingency and those Trustees, took steps in securing authority for a college in 1836, to meet what they must have seen would occur— general free high school facilities for all the children and youth of Cincinnati. On March 17, 1850, wisely the Woodward Trustees discontinued the high school department. And on March 20, 1851, due to lack of funds, the Trustees were compelled to discontinue the college. In the same year the Trustees entered into a wholly unauthorized contract, completely violative of the manifest purposes of their trust, with the trustees and visitors of the common schools. Trustees of a trust fund established by Thomas Hughes for purposes similar to that of Woodward, joined with Woodward, Trustees in this contract. It is stated in such contract that its purpose is to provide: “for the education of all such children as are entitled to the benefit of common school fund instruction in said city;” In this contract, the City school authorities were designated party of the first part and the Woodward and Hughes Trustees party of the second part. The contract further provided: “It is agreed that, as soon hereafter as practicable, high schools for boys and girls — one to be styled the Cincinnati Woodward High School and the other the Cincinnati Hughes High School — shall be established as hereinafter provided, to be under the direction of a board of trustees, which shall be composed of six members, to be elected by the board of *10 trustees and visitors of common schools from their number, the two permanent members of the Woodward board, the three members of said board elected by the city council, and two members of the Hughes board, elected from their number, making thirteen in all, which board shall have the usual power of trustees for the management of said schools. “It is further agreed that the party of the first part shall provide as much money as, added to the properties and funds of the second and third parties, will furnish high schools that will accommodate and educate all the white youth of the city who may apply for admission to such high schools, and who may be sufficiently advanced in the several studies, according to the rules that may be prescribed by the board to be appointed as aforesaid:” “The party of the second part agrees to place at the disposal of the board of trustees herein provided, for the use and support of the high schools contemplated by this arrangement, a lot of ground 220 feet front on Franklin street, by 200 feet deep to Woodward street, with the building thereon, and the net annual income of the Woodward fund, now valued at, say four thousand five hundred dollars per annum.” “both of said buildings shall be erected and the schools therein opened under this agreement immediately after the vacation of 1851, and immediately thereafter and thenceforth the net annual incomes of the properties of the second and third parties shall be paid over guarterly, as collected, to such city officer as shall have charge of other city school funds, to be applied toward the support of the high schools of the city as aforesaid.” On May 19, 1851, the City Council, unqualifiedly ratified this contract as far as the Woodward trust was ‘involved and conditionally as to the Hughes trust. In 1851, Woodward High School opened and was operated in accordance with the terms of the contract, the revenue of the Woodward trust being thrown into the general free public school fund, and the property on which Woodward High School was located being occupied by the free public high school, open to rich and poor alike, and without any compensation to the trust. In 1855, a new high school building replaced that built by the Trustees. On June 25, 1862, a further violation of the essential provisions of the Woodward trust was perpetrated, in that, by consent of all parties to the contract of 1851, non-resident paying children were admitted to Woodward High School. *11 The parties to this contract were thereafter denominated the Union Board of High Schools, and as such illegal body has . continued to function up to the present time. On March 29, 1883, the legislature further infringed upon the trust provisions, by changing the manner of appointment of the trustees, providing for their appointment only by the Court of Common Pleas of Hamilton County. Prom 1851 to 1895 — Woodward and Hughes High Schools continued to operate as free public high schools, as far as the citizens of Cincinnati were concerned, but open to non-resident children upon paying a tuition fee. They were the only high schools in Cincinnati. May 9, 1895, by a contract between the Trustees and the Board of Education, the contract of 1851 was modified to permit jurisdiction of the Union Board over all high schools in the City of Cincinnati (another having been opened) but it was further provided that the Board of Education should thereafter have seven instead of six members on such Union Board and that the Superintendent of Schools of the' City of Cincinnati should have supervision of the high schools and appointment of teachers thereto. Under the contract of 1851, it will be noted the Union Board of High Schools consisted of 13 members, only six of whom were from the Board of Education or “board of trustees and visitors” as it was then called. Under the new arrangement the Board of Education was given at least an equal representation with the Trustees. That the Trustees of Woodward High School have had no controlling voice in the operation even of that school thereafter is a matter of common knowledge. In 1918, the second Woodward School Building was replaced with a third High School building, and it is again a matter of common knowledge that this high school, occupying property belonging to the trust estate of William Woodward has more inadequate facilities than any of the other of the modern high schools since erected by the Board of Education, under the guise of the Union Board of High Schools. Among the facilities absent in the equipment of Woodward High School is a playfield or recreation field, and it must be admitted that such facility is more needed for this high school than in any other, as it is found in 'the now extremely congested area of the City and serves the more, under-privileged classes, coming to it from what is commonly known as the “basin of the city.” Its absence is mentioned only in passing to indicate how far astray the trustees of the William Woodward fund have gone in diverting the proceeds and revenue of that trust from the clearly defined purposes of his deeds, plainly expressed. Upon this state of facts the trial court reached the following conclusions: *12 1. Upon Interrogatory No. 1: That the Union Board of High Schools, as now constituted, does not have legal authority and power to manage, control and operate the Public High Schools of the City of Cincinnati. 2. Upon Interrogatory No. 3: That the act of the Legislature, passed on March 29, 1883, so far as it attempted to change the manner and method of appointing Trustees of the Woodward High School of the City of Cincinnati, was invalid. The court further ordered that the method of appointing the Woodward Trustees, provided for in the Woodward trust deeds, be resumed. The present Trustees to continue to serve until their successors are so lawfully appointed. 3. Upon Interrogatory No. 4. That the trustees have no light to continue to divert funds from the trust in the manner now prevailing, but, that the trustees do have the right, with the approval of the court, to apply such income directly, or through the Board of Education or other agency, to a purpose which will carry out the general intention of William Woodward in operating the Woodward Trust to assist only poor children of the City of Cincinnati in obtaining an education. 4. Upon Interrogatory No. 5. “The Court finds, declares, orders and decrees that no person, group of persons, corporation or board has any right to recover from any person, group of persons or board any of the income or funds which have been paid under the Union Board of High School Contracts of 1851 and 1895 for the operation of the Public High Schools of Cincinnati. 5. Under Interrogatory No. 6. “The Court finds, declares, orders and decrees that the trustees of Woodward High School have the power and authority to use income derived from the trust property under their control to assist financially poor children — those under twenty-one years of age— of Cincinnati in such manner as will enable them to take advantage of the instruction provided by Governmental authorities in the Public Grade and High Schools and at the University of Cincinnati, and further finds that such assistance may include the purchase of shoes, articles of clothing, eye glasses, food, and the furnishing or paying for dental and medical care and other necessities which may be considered necessary by said trustees to enable poor children of Cincinnati to take advantage of the education offered in the Public Schools and at the University of Cincinnati, and may include also tuition and other incidental fees at the University of Cincinnati. “The Court further finds, declares, orders and decrees that said trustees do not have the power and authority to *13 use said income to establish, equip, maintain and operate a playground adjacent to and in the vicinity of Woodward High School and to purchase real estate for said purpose, and do not have the power and authority to sell and convey any of the real estate under their control for the purpose of securing funds to procur other land which would be used as a playground.” 6. Upon Interrogatory No. 7. “The Court finds, declares, orders and decrees that the Trustees of Woodward College and High School have authority without securing permission and authority of Court to sell and convey by special warranty deed the fee simple title to land acquired by them, which land does not constitute a part of the basic trust funds, and to reinvest the proceeds of said sale in other real estate or approved securities; that the lot fronting 220 feet on the north side of Thirteenth Street and conveyed by deed, dated Dec. 17, 1830, for the specific purpose of erecting thereon a High School building may be sold and the fee simple title thereof conveyed by special warranty deed to the Board of Education, and the proceeds thereof reinvested in other land or approved securities; but that said trustees do not have the right and authority to sell and convey the real estate conveyed to said trustees by the trust deeds of William Woodward, and to reinvest the proceeds from said sale, without showing that retention of said real estate would defeat or substantially impair the accomplishment or purpose of the Woodward Trust and without securing special authority of court to sell any particular parcel of said real estate. “Authority will be given to the trustees to present testimony, if they desire,, concerning the existence of any need to sell any part of the original trust property under their control.” The costs were assessed against the plaintiff Trustees: Such Trustees have taken no appeal from the judgment of the Court. The appellants object to the conclusions of the trial Court upon Interrogatories Nos. 4, 6, and 7. These conclusions are, therefore, now to be considered, bearing in mind that in this form of appeal, this Court has only power to affirm, modify, or reverse the judgment of the trial court, and cannot, as it could upon an appeal on questions of law and fact, pronounce entirely new conclusions upon the pleadings and evidence. Error affirmatively prejudicial to the appellants must appear in the judgment of the trial court before its conclusions as to the rights of the parties may be disturbed. *14 Art. VI, section 2 of the Ohio Constitution provides: “The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.” Art. VI, section 3 of the Ohio Constitution provides: “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.” Children between the ages of six and eighteen are required by law to attend the public, private, or parochial schools if mentally and physically capable of doing so. Sec. 4849, GC. Sec. 4849-2, GC, provides: “Every child of compulsory school age who is not employed on an age and schooling certificate and has not been determined to be incapable of profiting substantially by further instruction shall attend a public, private or parochial school under the conditions prescribed by law.” Sec. 4849-3, GC, makes the parent or guardian of such child responsible for such compulsory attendance. Under special conditions, work certificates may be issued at age sixteen, permitting absence from such compulsory education. Sec. 4851, et seq., GC. The board of education of each city is required to furnish school books free of charge to pupils. Sec. 4854-5 GC. Sec. 4855 GC, provides for free transportation of pupils, where circumstances require' it. Sec. 4856 GC, provides: “A board of education in a district which does not maintain a high school and which pays the tuition of a school resident of the district in a high school in another district, or a board of education which pays the tuition of a school resident of the district, in a high school in another district, *15 of higher grade than that maintained in the given district may furnish the cost of such child’s room and board while attending such school or a part of such cost, providing such amount is less than the cost of transportation of such child and provided such action is approved by the county board of education.” Sec. 4852-8 GC, provides for hearings before the Juvenile Court upon charges of truancy or failure of parents to cause children to attend school in conformity with the statutes. It is obvious from a reading of these and related sections that poverty is no excuse for non-attendance at school during the years mentioned. Such being the case, it is also apparent that if poverty interferes with such attendance, the burden rests upon the public at large to remove such impediment by • appropriate means. If a normal child proceeds through the ordinary school curriculum, he should at age 18 have completed a full high school course. It is thus apparent that any necessity for private aid to poor children in securing an elementary and a high school education is entirely unnecessary, and that the revenue of the Woodward trust fund would be superfluous if used for such purposes. On the other hand, requirements for matriculation in medical and law schools require four and two year credits in college or liberal arts. Sec. 1270 GC. See: Rules of Practice of Sunreme Court of Ohio, Rule XIV, section 4, 136 Ohio St., LXXVII. While it would seem clear from the various quotations from the deeds of Woodward and the special acts of the legislature relevant thereto that he' excluded those who sought special degrees in the professions from the benefit of his trust, it is now equally clear that providing the means of obtaining collegiate education in the liberal arts and sciences, as a preliminary to further course in such special professions would not only not be a departure from the purpose of the trust, but would be in direct furtherance of the program of extension endorsed by Woodward in his deed of December 16, 1830. The appellants take the peculiar position of validating the contract of 1851, so far as it permits diversion of the trust funds to the general receipts of the Board of Education but admit freely its invalidity as far as it attempts to give the Trustees any jurisdiction over the use of such funds after such disposition, by permitting control over the schools for whose general benefit such funds are used. Such inconsistent position is fatal to the logic involved. The contract is either entirely valid, or by virtue of an entire failure of consideration and inherent illegality void in toto¡ *16 That in so far as the contract attempts to take control of the schools from the duly constituted authorities, it is invalid, must be perfectly clear. Secs. 4836, 4834-9 GC. The conclusion of the trial court that such contract and the special act of the legislature attempting to validate it, in so far as such contract and’act attempt to transfer control of the schools from lawfully constituted authority, or divert the revenue from trust funds to public use, are invalid, must be sustained. In like manner, the conclusion of the trial court that the special act of the legislature of 1883, attempting to provide a method for appointment of Woodward Trustees different from that designated by Woodward is ineffective to accomplish such result, is also sustained, and the method decreed in the order of the trial court is affirmed. No objection being made to the order of the trial court, freeing the trustees from past diversion of trust revenue, the order, so freeing them, must also be approved and affirmed. As any playfield attached to the present Woodward High School or otherwise located could not be operated for the exclusive benefit of the poor children of Cincinnati, and would, in any event, have a doubtful value as a furtherance of the trust provisions, the order of the trial court denying the Trustees the right to use either any part of the corpus of the trust or its revenue for such purpose is approved. Although no objection is here piade to the order of the court providing that the Trustees may use trust revenue to “assist financially poor children — those under twenty-one years of age of Cincinnati in such manner as will enable them to take advantage of the instruction provided by governmental authorities in the Public Grade and High Schools, ’■ s' * and that such assistance may include the purchase of shoes, articles of clothing, eye glasses, food and the furnishing or paying for dental and medical care and other necessities which may be considered necessary by such Trustees,” such use of the revenue of the trust has a questionable reference to the expressed purposes thereof. However, in the same portion of the order the court approves the use of such revenue to provide assistance to such poor children under twenty-one years of age in securing education at the University of Cincinnati. This portion of the order is unquestionably directly in furtherance of the intent of the settlor, and, as before indicated, seems to be the most logical way of carrying out the purpose of Woodward for progressive education. It is a matter of common knowledge that tuition in the University of Cincinnati is not entirely free, even to the children of the citizens of the City. While the charge is less than to nonresidents, still it is of such an amount as to undoubtedly pre *17 vent many children or youth from attending the University, who could otherwise do so if their tuition were paid. That portion of the trial court’s order dealing with the use and disposition of the school lot upon which Woodward High School now rests is also approved. Definite exception has been taken to this portion of the order by appellants. This lot was deeded for the same specific use.for the benefit of the poor children of the city of Cincinnati. The first school erected thereon was specifically reserved for such purposes. If the use of the trust revenue for general educational purposes, for rich and poor alike, is violative of the trust purposes, certainly, it cannot be logically claimed that the use of such real property is not a departure from the trust purposes when the school erected thereon is used for the benefit, not only, of poor children but all others. The trial court’s order as to the disposition of other real estate in the corpus of the trust is also approved. It appears that the trustees for the past eight years have been withholding the income from the trust and permitting it to accumulate and it is admitted by the appellants that the trustees 'have full power over such revenue to use it as the court directs. Manifestly, therefore, such revenue will be applied in the same manner prescribed by the trial court and here approved for current trust revenue. It is a matter of interest, although extraneous to the issues here involved, that the Hon. Chase M. Davies, the trial Judge was for many years President of the Board of Education of the City of Cincinnati, and entirely familiar with the controversial issues presented by this proceeding. This fact should lend value to his logical conclusions upon the issues presented. The writer of this opinion, whose selection to write the same was entirely fortuitous, when the case was called for argument suggested that he should retire from the bench, for the reason that he graduated from Woodward High School in 1901, had been continuously an active member of its alumae association, and a Trustee thereon, and had consistently for many years insisted upon the rights and duties of the Woodward Trustees, as found to exist by Judge Davies. Both counsel in the case requested the writer to remain in the ease and expressed the opinion that such experience would be helpful in a decision of the issues presented. What has been .here written shows that the writer and the trial judge now are of one mind upon these issues. A case reported in 17 Oh St 352 (Mclntire’s Admrs. v Zanesville) in many respects sustains the conclusions reached herein. In my opinion, the judgment of the trial court should be affirmed, for the reasons given. *18 HILDEBRANT, P. J., & ROSS, J., concur in syllabi, opinion and judgment. MATTHEWS, J., dissents in separate opinion.