Littell v. Wallace

.JUDGE HARGIS delivered the opinion op the court. In the year 1844 Mrs. Susan Preston made and published her last will and testament, by the second clause of which :she devised "to the trustees of the Presbyterian Church in Hopkinsville, and to their successors forever, in fee-simple,” .a house and' lot, "with the buildings, hereditaments, and ■ .appurtenances thereto attached and appertaining, ... to be used, occupied, and enjoyed by the church aforesaid and their minister as a parsonage. ” [253] The legislature, in the year 1878, passed an act incorporating the trustees of said church, by which power and authority is conferred upon the trustees, upon the advice and consent of the congregation of said church, “to exchange or sell and convey the house and lot” in question. The requisite consent and advice of the congregation to the sale of the house and lot was given, and the sale was, made by the trustees to the appellant, who refused to accept the deed, regular in form, and acknowledged according to law, becáuse he doubted the ability of the trustees to convey to him a fee-simple title, for which he contracted with them. This was a friendly suit to settle the question. The appellant signifies his willingness to accept the deed and pay for the property if it invests him with an absolute title. The court below adjudged that the deed was sufficient for that purpose, and so we adjudge. It is clear, from the provisions of the will, that the testatrix intended to invest the trustees of the church with a fee-simple title to the property, for the uses and purposes expressed by her, and the will creates a valid trust, capable of being executed by the trustees and their successors,, whom she designated for that purpose. The trustees and church are still in existence, capable of managing and enjoying the property devised in the mode specified by the testatrix, and certainly no reason can exist for a forfeiture in this case, and no reversion was ever contemplated by her, as she made the devise in fee-simple, subject to no condition or limitation, save as to the use of the property, the trustees being in duty bound, keeping in view in good faith the object of the testatrix as expressed in the will, so to administer the trust as, considering the condition [254] *of the property, and the circumstances and interests of the -.congregation, will best subserve the beneficent purposes of -.the testatrix. The testatrix did not contemplate that the particular house and lot should be used forever as a parsonage, with- ■ out regard to decay or inconvenience, 'her main object being to furnish a parsonage,°to be used and enjoyed by the members of the church and their minister. We are of opinion .-that a sale and reinvestment of the proceeds in other prop•erty, to be devoted to similar uses, will carry out her intention and purpose as expressed in the will; and this power of :sale, aside from the legislative authority, is essential to the execution of such a trust, as the decay, unfitness, or inconvenience of the house as a parsonage, might ultimately defeat the .intention of the testatrix, if a sale could not be ■made. The sale of the property so devised cannot be made as a matter of course,; but in cases of this class,' when the legislature has given the authority to trustees to sell and convey, "by and with the advice and consent of the beneficiaries, such .advice and consent, when regfularly given, as in this case, are sufficient fo ascertain the propriety of the sale. (Stanley v. Colt, 5 Wallace, 119; Old South Society v. Crocker, 119 Mass.) Wherefore, .the judgment is affirmed.