Lewis v. Gaillard

Cockrell, J. (after stating the facts) — This case is not without difficulty, and depends upon the proper solution — 840 — of two problems, which may be stated thus: Did the Legislature of 1905, in declaring “abolished” the “West Florida Seminary now known as the Florida State College, located at Tallahassee, Chapter 5384 Laws of Florida, ipso facto vest in the Westcott heirs the title to the residuary estate, so that the immediate re-establishment under that act of the same institution, would not prevent the lapse; and, secondly, if that be not its effect, are the changes in the existing college so material as that a court of equity should declare the object of the testator’s bounty has failed. First let us make a brief reference to the will itself. Ten thousand dollars are given for the construction and maintenance of a monument over the graves of the teslator and his parents, one thousand dollars to Mrs. Archer, and three thousand dollars to his maiden aunt, who we learn from the allegations of the bill was his only very near relative. The rest of the estate, he desired, to be held in trust for the benefit of “The West Florida Seminary, the institution located at Tallahassee with which Col. Rivers is connected.” Authority is given his executor, or should he not qualify, to the “officers controlling the institution” to change the investment of funds in their discretion; the interest only to be used. We may further add that the income from the estate had been so used for nearly twenty years by his executor under the will prior to 1905. The naked title has since Judge Westcott’s death, been in his heirs, subject to this burden and the right of the trustee to change the investment, which right carried with it the power to make the necessary legal transfers, and we are not facing a hiatus in the legal title. While the various State institutions of higher learning were by that act abolished, State ex rel. Moodie v. Bryan, — 841 — 50 Fla. 293, 39 South. Rep. 929, provisions were made for the immediate re-establishment of two schools to be under a new set of public trustees, named the Board of Control, and the trustees of the “abolished” institutions were required to convey the properties theretofore under their care and management to the State Board of Education. Section 2 of that act reads: “That all and singular all the lands, tenements and hereditaments, estate and property, real, personal and mixed, including all bonds, funds, moneys and investments, and the rents, issues and profits thereof, had, held, or possessed by the said institutions named in Section 1 of this Act, or any of them, or to which said institutions or any of them might or could have, claim, or be in any way or manner entitled to either in esse or in futuro and from any source whatsoever, be and the same are hereby declared forfeit and to revert to the State of Florida, and upon the passage and approval of this act, to vest absolutely in the State Board of Education in fee simple absolute, in trust, nevertheless, for the uses and purposes hereafter provided for herein.” The Act became a law on June 5, 1905, at the end of the school year and provision was made whereby the two Boards were to act promptly in selecting the locations for the two new institutions, and one of them, designated as the Florida Female College, but now officially called the Florida State College for Women, was promptly located at Tallahassee, at the site formerly occupied by the Florida State College, so that there has been no break in the actual workings of the school as an institution for higher-education, opening its regular session in the succeeding autumn. Equity looks at the substance, rather than the strict letter and we fail to find such hiatus or break in the continuity of the institution as to cause us to declare a — 842 — forfeiture, and we answer the first question propounded by us, in the negative. Had the heirs interposed between June 5, 1905, and the actual location of the proposed new college at Tallahassee, there are respectable authorities holding that a court of equity would stay its hand a reasonable time, to await the outcome of the pending action; it is certainly too late after that action has been promptly taken to come in and in the face of the well known public facts known by all to exist, to suggest that the institution does not continue to exist, though under a changed name and other changes presently to be considered. Up to this point, we discover nothing other than a change in trusteeship, a change in name, and a short interval of time during which the object of the bounty might have ceased to exist, had certain Boards so willed. That interval had safely passed, and upon the filing of the bill of complaint we find at the site of the school, erroneously called the “West Florida Seminary,” by Judge Westcott in his will, a flourishing institution for higher education, most liberally supported by the State, called the “Florida State College for Women,” which has been in continuous operation since 1905, and upon which the State has expended several hundred thousand dollars. There have been many changes in the institution in the quarter century since Judge Westcott made his will. We may add parenthetically that all institutions, which have survived this rapidly progressive age, have of necessity made many changes, in order to survive. Mere change •of name, unless some peculiar affection for the name is indicated by the donor, means nothing, while location is important. Institutions controlled by the State are of necessity subject to change in State policy, and of this, those endowing such institutions must be held to have — 843 — knowledge, and if they would offer a check upon this change of policy, their will upon the matter should be made known, if not directly, at least by clear inference. The main change is in the fact that at the time Judge Westcott made his will, he died soon after, the Seminary was co-educational, while now it is confined to girls who have passed certain grades of the common schools; the other changes are incidental to this change and may pass unnoticed. While the bill alleges that the testator was himself an alumnus of this Seminary, the will is silent as to that fact and the will does not propose an aid to the boys of Leon county, but to “students” of that county. . Co-education among college students was then, perhaps more than now in its experimental state, though common enough in the grammar schools, and surely an alumnus with pride, as well as love for his alma mater, must have looked forward to the time when it would put off its swaddling clothes and become a seminary or college, a State institution in fact as well as in name, and he is held to the foresight that when such time came, the Legislature might change its mind and separate the sexes. And so it may be, he used the happy word “student” as embracing male and female, both or either. Under the letter of the will, then the bounty can be applied to the “Institution located at Tallahassee,” and “at least one-half of this interest expended for the benefits of students of Leon county under the direction of the managing officers of the institution.” Perhaps the above reasoning would savor too much of special pleading and be unsupportable without the assistance of the doctrine of cy press as now almost universally recognized by the courts of this country; not as, at one time, enforced in England, as a special prerogative of the — 844 — High Chancellor, under the Sign Manual of the King, as parens patriae, but under or independent of the Statute of 43 Elizabeth, Chapter 4, as an ordinary equitable doctrine of a liberal construction in favor of public charitable bequests, especially where the bequest has once vested. It is apparent that the testator desired his estate to go not to his remote heirs, he had none nearer than the maiden aunt, whom he specifically remembered, but to this public educational institute at his home town, and for assistance through that institute to the students from his home county of Leon. The main objects of his bounty can be still made effective, and while it may be doubted, whether the courts would be warranted in the construction, if the object were private and not eleemosynary, we think we are well within the decided cases, and are doing no violence to the intention of the testator, in holding that the Florida State College for Women is entitled to receive the income from the residuary estate. See Schouler, Petitioner, 134 Mass. 426; Festorazzi v. St. Joseph’s Catholic Church of Mobile, 104 Ala. 327, 18 South. Rep. 394, 25 L. R. A. 360; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. Rep. 527; Moran v. Moran, 104 Iowa 216, 73 N. W. Rep. 617; Harrington v. Pier, 105 Wis. 485, 82 N. W. Rep. 345. The demurrer to the bill should have been sustained and the orders appealed from are, therefore, reversed. Taylor, Hocker and Parki-iill, J. J., concur;