Weeks v. Hyland

The opinion of the court was delivered by Harvey, J.: Lucy L. Ahlborn Weeks, a childless widow, residing — 104 — in Geary county, died testate June 11, 1940. Her will was duly admitted to probate and an executor was appointed. Upon the petition of the executor the probate court, under the provisions of the probate code (Laws 1939, ch. 180, §270; G. S. 1939 Supp. 59-2402) certified to the district court the question of the legality of item 2 of the will. The district court, after a hearing, held the legacy and devise set out in the item to be void as being in violation of our statute (Laws 1939, ch. 180, § 38; G. S. 1939 Supp. 59-602), and that the property attempted to be disposed of by that item descends to the heirs at law of the testatrix. The beneficiary under the item has appealed. The item reads: “I direct that all property which I may own, or be in any way or manner entitled to at the time of my death, remaining after the payment of my legal debts and the cost of administering my estate, be the same real, personal or mixed and wheresoever situated, shall be converted or reduced to cash by the executor hereof, hereinafter named, within six months from the date of his appointment and qualification, and such executor is hereby empowered and authorized to sell, deed, transfer, assign and convey my said property not reduced to cash by me in my lifetime, without proceedings or order of court, for the best cash price obtainable in his judgment and all the proceeds of my estate and property, so reduced to cash, remaining after the payment of my legal debts and cost of administering my estate, I will and bequeath to the Town of Buren-on-Aare, in the District of Burén, in the Canton of Switzerland, in trust however for the use and purpose of building and equipment of a hospital in said town or district in the manner hereinafter specifically set forth, to wit: “The town council of Buren-on-Aare shall appoint a board of trustees, the members to serve without compensation, consisting of five members, who are well qualified residents of said district of Burén, not municipal officers of said town or district, one appointed for a term of one year, one for two years, one for three years, one for four years, one for five years, and shall maintain said board of trustees at full membership by appointing a successor to the member whose time expires for a full term of five years, and to fill all vacancies caused by death, resignation, removal from the said district or other cause, for the unexpired term of such member. “The Board of Trustees so appointed and constituted shall complete the organization within the' period of six months fixed for the payment of the proceeds to the treasurer thereof by electing from their members a president, a secretary and a treasurer, who shall be bonded for the faithful discharge of his duties as such treasurer and accounting for all money coming into his possession as such officer in a sum not less than double the amount to be paid to him as provided herein. “The duties of such president, secretary and treasurer shall be the usual and ordinary duties of such officers for the purposes designated. “At the expiration of six months after the appointment and qualification of the executor of tjiis will, and upon full and satisfactory proof of the appoint — 105 — ment, organization and qualification of said board of trustees made by the municipal officers of said town of Buren-on-Aare, said executor shall pay to the treasurer of said board of trustees said remainder of the proceeds of my estate. Said board of trustees shall without unnecessary delay use and apply said proceeds solely in building and equipping a hospital, within the District of Burén, for the treatment of diseases in general and surgery, said hospital to be designated and known as The Henry Christian Frederich and Margaret Btiken Ahlborn Hospital, to be operated and used under such rules and regulations as said board of trustees shall provide for the purpose.” The pertinent portion of the statute in question (Laws 1939, ch. 180, §38, G. S. 1939 Supp. 59-602) reads: “(1) Any devise of real estate located in this state, and any bequest of any personal property by a resident of this state, without regard to the time when the will containing such devise or bequest shall have been made, to any foreign country, subdivision thereof, or city, body politic, or corporation, located therein or existing under the laws thereof, or in trust or otherwise to any trustee or agent thereof, except devises and bequests to institutions created and existing exclusively for religious, educational, or charitable purposes, is hereby prohibited. Any such devise or bequest shall be void. . . .” The validity of this statute is not questioned on this appeal. Counsel for appellant first argue the will is effective irrespective of the statute. In this connection they point out the fact the will was executed September 7, 1929, and the statute in question was not effective until July 1, 1939. They concede the general rule to be that a statute enacted after a will is executed and before the death of the testator is controlling on the construction of the will,' if it is clear, as it is here, the legislature so intended, citing Thompson on Wills, 2d ed., sec. 25; but argue the rule should not apply because of the asserted insanity of the testatrix since 1933. There is no evidence in the record of the insanity of testatrix at any time. This point appears from the record not to have been presented to or passed upon by the trial court. Even if it were true, we do not see how it would affect the validity of the will. The statute makes no such exception. So far as the statute is concerned, the provision in the will is either good or bad without regard to the sanity or insanity of the testatrix at some time after the will was executed. It next is argued the trustees provided for in the will should be construed as an institution within the meaning of the exception in the statute. If so construed, they concede it was not an institution which had been created and which was existing at the time the will became effective, but argue the time should be construed to be six months later, when the executor was directed to turn over the funds, — 106 — and say if the trustees were appointed by that time they should be held to be an institution authorized to take. This argument is not convincing. The exception in the statutes pertains to outright gifts, in which the title passes from donor to donee, and not to gifts in trust. In 5 R. C. L. 315 it is said: “There is a broad distinction between a gift direct to a charity or charitable institution already established and a gift to a trustee to be by him applied to a charity.” (See Bradley v. Hill, 141 Kan. 602, 613, 42 P. 2d 580.) Gifts in trust, or otherwise, to any trustee or agent of a foreign country, district or city, are prohibited and declared void in the principal portion of the section. The exception pertains to outright gifts “to institutions created and existing exclusively for . . . charitable purposes.” We think the trustees to be appointed cannot be such an institution. Appellants cite Zollman, American Law of Charities, sec. 345, to the effect that for a charitable gift to be valid it is not necessary for the corporate donee to be in existence when the gift takes effect; that a gift may be made to a corporation to be formed. This may be conceded, but the author was not dealing with a statute such as ours, neither is the discussion applicable to our statute. The main provision of the statute is a limitation upon testamentary power — the exception lifts that limitation for certain purposes only — for gifts to institutions created and existing exclusively for religious, educational or charitable purposes — not in trust to any- type of trustee, nor to corporations or institutions to be organized. Quite a little is said in the briefs as to whether the erection and equipment of a hospital “for the treatment of diseases in general and surgery” is a charitable purpose. In view of what has been said, perhaps the determination of that question is not important in this case. We note the entire fund was to be used in constructing and equipping the building. None of it was to be used for maintenance or operation, and the will contains no hint of from what source funds are to come for those purposes. It was to be designated and known as The Henry Christian Frederick and Margaret Burén Ahlborn Hospital. We are told in the brief these are the names of the parents of testatrix. This indicates the principal or one of the principal purposes was to erect a monument to their memory. It was “to be operated and used under such rules and regulations as said board of trustees shall provide for the purpose.” Whether a hospital is properly characterized as a charity — 107 — depends on how it is operated (Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869). The testatrix did not specifically require the hospital to be operated as a charitable institution, unless the fact of the fund being a gift “to the Town of Buren-on-Aare ... in trust ... for the . . . purpose of building and equipment of a hospital,” and upon the theory that the only kind of a hospital the city could maintain and operate would be one for charitable purposes. Our cities (Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768) and counties (Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586) may accept gifts for charitable purposes. In the absence of any showing to the contrary we may assume that is true of towns and districts in Switzerland. But so construed, the attempted gift was to the Town of Buren-on-Aare, and comes within the specific prohibition of the statute. The general rule is that a gift to a corporation for a purpose for which it was formed ig a gift to the corporation and not in trust. (Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177.) It seems clear the attempted gift was to the town, as distinct from being to trustees, and that the primary purpose of the testatrix was to have constructed and equipped for use as a hospital a building which would be a memorial to her parents, rather than to make a gift for general charitable purposes. Finally, appellant contends that the doctrine of cy pres should be applied in the event the attempted gift in question is held to be void, and suggests that the court find a way of utilizing the fund by the creation of an endowment of an already existing hospital in Burenon-Aare, or one such to be created. The contention is not well founded. The doctrine never is applied to convert a gift prohibited by law into a valid charity. “The doctrine of cy pres does not justify appropriating an invalid gift to a valid charitable purpose.” (10 A. J. 682; 6 R. C. L. 369. To the same effect, see 11 C. J. 360.) We see no purpose here in an extended discussion of the cy pres doctrine. It may be found in any of the authorities last cited, or in 14 C. J. S. 512-520. Counsel have cited no Kansas decisions in which the doctrine has been applied by name. Our limited time for research has disclosed but two. (Forbes v. Board of Education, 7 Kan. App. 452, 53 Pac. 533, and in language used in the first decision in Troutman v. De Boissiere O. F. Orphans’ H. & I. School Ass’n, not reprinted in the state reports but found in 64 Pac. 33-39.) As used — 108 — in this state the doctrine seems to be no more than the application of rules long used by courts of equity in interpreting written instruments to ascertain the intention of the grantor or testator, and in carrying out such intention. Such rules have been applied by this court in a large variety of cases, but never to carry out an intention that is a direct violation of law, nor for a purpose foreign to what is determined to be that of the grantor or testator. We find no error in the record. The judgment of the court below is affirmed.