Thompson's Exr. v. Brown

[104] Opinion op the court.by CHIEF JUSTICE BURNAM Rehearing GRANTED, ORIGINAL OPINION WITHDRAWN AND CASE REVERSED. Fot original opinion see 24 R., 1063; 70 S. W., 674. The eleventh clause of the will of Elizabeth Thompson, who died in, September, 1897, reads as follows:- “I will and direct that my house and lot in Ray wick, Ky., be sol'd at such time and on such terms as my executor may deem best, and I will that the proceeds together with whatever other estate I may have after -the payment of the aforesaid bequest and funeral expenses shall be collected by my executor, and by him distributed to the poor in his discretion.” The only question for decision upon this appeal is whether the gift in this clause is sufficiently definite to be enforceable under section 317 of the Kentucky Statutes of 1899, which requires that such- gifts shall point out with reasonable certainty the purpose of the charity and the beneficiaries thereof. Very different rules from those that are applied in establishing and administering private trusts will be applied in order to give effect to the intention of a donor -to establish a public charity. In discussing- this question, Perry on Trusts, section 687, uses this language: “If in a gift for private benefit the cestuis que trustent are so uncertain that they can not be identified, or can not come into court and claim the benefit conferred upon them, the gift'will'fail. But if the gift is made for a public, charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of. the charity are uncertain and indefinite. Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recipient begins.” The general doctrine upon the question -of charitable bequests is that the beneficiaries should be designated as a class only, leaving the number [105] and individuals to be determined by the trustees who administer it. Devises for the poor have always been favorite modes of dispensing charity by benevolent persons, and trusts created for this purpose have been generally upheld by the courts. In Moore’s Heirs v. Moore’s Devisees, 34 Ky., 354, 29 Am. Dec., 417, it was decided: “When an ascertainable object is designated by the donor in general and collectible terms, as the poor of a given county or parish, or when a person is appointed by him to select a described portion or kind or number from a designated class, the chancellor, sitting as judge in equity, will interpose on the ground of trust.” In the case of Curling’s Adm’rs v. Curling’s Heirs, 8 Dana, 38, 33 Am. Dec., 475, James Curling left the residue of, his' estate for the use and benefit of a public seminary, not designating where it was to be located. .The circuit judge held the devise void for uncertainty, but, upon appeal to this court, Judge Robertson, delivering the opinion of the court, said: “The testratrix, by designating a general object of charity (a public seminary), must be understood as intending, either a seminary, or the seminary of his county, or any seminary which his executor or a court of equity, in the exercise of a sound ■ discretion, should select as best adapted to effect the object of charity. Upon either of these hypotheses, the testator’s purpose, as declared and circumscribed by himself, may be fulfilled by applying the fund to a specific object, without any hazard of perverting his bounty in a manner not contemplated by him and authorized by his will. Therefore, according to principles established as perfectly judicial, we are of the opinion that the devise created a charitable trust, which may be executed according to law, and without violating the will of the testator or making a will for him, and therefore we conclude that the circuit court ought to [106] have decreed the appropriation.of the profits of the devise to the use of the Trigg Seminary, and appointed a trustee to execute the trust.” In the very recent case of Spalding v. St. Joseph’s Industrial School, 107 Ky., 382, 21 R., 1107, 54 S. W., 206, Judge DuRelle uses this language: “All the Kentucky cases have sustained the charitable uses therein considered because the court held that a charitable object was indicated, or a class of charitable objects designated from which choice was authorized to be made. In some of them there is room for difference of opinion as to the certainty of the objects of the charitable uses sustained, but the courts have always held that they were certain, either by being, designated by the donor, or one of a class designated by him from which choice was authorized to be made.” In Bedford v. Bedford’s Adm’r, 99 Ky., 273, 18 R., 193, 35 S. W., 926, the devise -was to the State of Kentucky in trust for the benefit of the State, the profits therefrom to be appropriated annually forever towards the education of the children of the State — particularly the poor and most unintelligent. The devise in this case was sustained as sufficiently definite. The court said: “Trusts must be for the benefit of an indefinite1 number of persons, for, iff the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity, and which distinguishes it from a mere private trust.”' There has been considerable diversity in the decisions of the courts of the various States of the Union as to the extent they will go in upholding an indefinite trust. In some' States — particularly Maryland, Virginia, Michigan, New York and Wisconsin — it has been held that courts of equity have no greater jurisdiction, to enforce public than private trusts. On the other hand, in Kentucky, Maine, Massachusetts,' Missouri, Pennsylvania and many other [107] States where the principles of 43 Eliz., c. 4, are accepted, they have gone to the farthest limit in this regard. In this State sixteen decisions have been reported upon this question of charitable uses, beginning with the case of Glass and Bonta v. Read, 2 Dana, 170, in which charitable bequests have been uniformly upheld. But it is insisted that the amendment to section 317 of the Kentucky Statutes passed by the General Assembly in 1893, which is in these words, “if the grant, devise, gift, appointment or assignment, shall have pointed out with reasonable certainty the purposes of the charity and the béneficiaries thereof,” etc., was intended by the lawmaking department of the government to change the rule which has heretofore prevailed in this State. The words of the amendment are the same as those used in several opinions sustaining bequests to vari- . ous charities, and it would be more consistent with reason and common sense to believe that the Legislature simply intended to crystallize into the statute law the doctrine which has been so often announced by this court, and which has been accepted with approval by the profession, the General Assembly, the public at large, and by most eminent text-writers. The gift in this ease is to the poor as a class, and the testratrix has appointed her executor to select from this class the persons who are to receive the benefit of the charity. In our opinion, the judgment of the trial court is in conflict with what has become the settled legislative policy in this State with respect to public charities; and Spalding v. St. Joseph’s Industrial School, 107 Ky., 382, 21 R., 1107, 54 S. W., 206, relied on to support the judgment of the trial court, is not in conflict with the other cases, and the devise in this case should be upheld. For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.