Reeves v. Reeves

Freeman, J., delivered the opinion of the court. James Miller died in Washington county in February, 1874, leaving a will, which was duly proven in the county court of said county. He left his wife Elizabeth surviving him, who died in February, 1877,, — 645 — leaving likewise a will, of which complainant is executor. All the children of the marriage died during minority, without issue, so that the father and mother died without leaving any descendants surviving them. This bill is filed for a construction of certain clauses in the will of each of the above parties. The questions presented as arising on the will of James Miller, grow out of the following dispositions of portions of his property: The first gives all his property of every kind to his wife, after • payment of his debts, to be used, enjoyed and disposed of as she may see proper, with the following exceptions: 1st. It is my desire and will that the dwelling-house and lot, with its appurtenance fixtures, in Johnson City, Washington county, Tennessee, in and on which I now reside, shall be occupied, used and enjoyed by my said wife during her natural life, and at her death, descend to the Christian church, as a parsonage or ministerial house for said denomination of Christians. 2d. It is my will, and I so provide, that from one of my lots, south-east of Main street, in Johnson City aforesaid, a plat of ground, with a front of fifty feet and a depth of ninety feet, be set apart as a site for a Christian church, provided said church shall, within six years from the date this my last will and testament takes effect, erect a good and comfortable church building thereon; but should said church fail to do so, then said lot, or part thereof to be designated, shall revert absolutely to my said wife. — 646 — His wife and John D. Reeves were appointed executors of this will, and empowered to execute a deed' tc for. the lot of ground as hereinbefore designated, when the church had complied with the condition expressed.” It is conceded the church at Johnson City is not an incorporated body, but only a voluntary association or congregation of Christians organized for purposes of worship. We shall not discuss at length the question, of what is, or is not a valid devise to a charitable use under our law. That question has had, not only in our own, but in our sister States, an amount of/ exhaustive discussion that probably no other one question in our jurisprudence has received. It would not be of interest to the profession to go over this ground again, nor could it aid in the decision of the question, now before us. The rule given in Green v. Allen, 5 Hum., 169, and repeatedly followed since, is simple, sound and of' easy application. It is: “ If the charity be created either by devise or deed, it must be in favor of a person having sufficient capacity to take as devisee or donee, or if not in favor of such person, it must be-definite in its object, and lawful in its creation, and to be executed and regulated by trustees, before the-court of chancery can, by virtue of its extraordinary- or simple equity jurisdiction, interfere to enforce its. execution. In other words, it must have all the elements of a valid gift of the title, either directly-to the beneficiary, or to a trustee with the trusts definitely settled, so that they can be fairly executed. — 647 — by the court, by compelling the trustee to perform them.” There can be no question that, under this rule, the gift of the home for a parsonage must be held void. While the purpose of the gift is clear to be understood, as it most generally is in such cases, the gift is to one not entitled to take, not being a person in law, or a body recognized by it. It is insisted, however, that by sec. 1508 of the Code (act of 1843), this devise can take effect. It is: “Any religious denomination or society, whether incorporated or not; may take by deed or otherwise, and hold not exceeding five acres of land at one place for' purposes of public worship.” We need but say that this language only authorizes such a body to hold land for purposes of public worship — in fact, was intended simply to authorize such bodies to receive and hold land, not exceeding the amount specified, as a site for the house of worship. This is clear from the next section, act of 1855-6: “All lands bought, or otherwise acquired by any religious society, shall be vested in a board of trustees, or other persons designated by the members of such denomination or society, for the use and benefit thereof.” This gift is not to such persons, even if any such existed, and therefore fails. It is argued that, under a liberal construction of these sections, we should hold that a parsonage, as it is termed, might be held to be a house or the land as held for purposes of public worship. A parsonage is but a house in which a minister of the gospel re — 648 — sides, and has no more relation to public worship than the clothes he wears or the horse he rides. Both of these are incidentally convenient and necessary for the comfort of the minister, but have no necessary or natural connection with public worship. The theory can only be sustained on the idea, that whatever is useful or convenient, or may be usefully used for the benefit of the minister who conducts the worship of the church, is to be included in the language — “may take and hold by deed or otherwise five acres of land at one place for purposes of public worship.” This theory simply adds to the statute arbitrarily, on the idea of convenience, what is not included in it nor intended. That this gift cannot be held included under this section, seems to us conclusively shown by the fact that there is a gift of a separate and distinct lot, nowise connected with this, to the church for purposes of public worship. The distinction between the two objects is here clearly marked. For that purpose the testator has chosen to give a body of land fifty feet front and ninety feet deep, and this the church can take under the other clause. We are now called on to hold that the other gift, specifically for another and distinct purpose, to-wit, the residence of the minister, was also for religious or public worship, and so good. The fact is, a residence for the minister is not for public worship any more than his barn or stable is. It is for the use of his family, for the shelter and comfort of himself and them, exactly as a lawyer’s residence is, or a physician’s is. Public worship might be had in — 649 — either of these as well as the minister’s house, but it could not be said the land on which they stood was held for public worship by reason of such use. We need but say, in reply to the argument based on the rule that a court of equity will not suffer a valid trust to fail for want of a trustee, but will appoint one, that the rule has no application to a case like the present. Its usual if not universal application is to cases where a trustee is designated, who fails from any cause to act. Be this as it may however, it is not in this case the failure of a validly created trust for want of a trustee, but the failure is to create the trust at all, or the failure of the gift entirely, because of want of capacity of the donee to receive, and no conveyance to any- one in trust for such party, with the objects of such trust defined. The second gift of the lot must stand' on a different ground. The gift, when fairly construed, is to the church, on complying with the condition annexed, as is seen by the provision, that if the condition is not complied with it shall revert or return absolutely to his wife. The executors have no title given them, but only a naked power to convey in the event of compliance. Construing the clause as a gift or devise to the -church, subject to the condition, as a site for a building as a house of worship, under the section of the Code quoted, the church is a qualified corporation, and may take and hold for this purpose. The only question is, is the devise so specific as that it can be executed, and the executors compelled to execute the — 650 — power? The language is, “that from one of my lots south-east of Main street, in Johnson City aforesaid, a plat of ground, with a front of fifty feet and a depth of ninety feet, be set apart as a site for a. Christian church, provided,” etc. In the concluding clause the executors .(or either one of them) are directed and empowered to execute a deed of conveyance for the lot as designated, on compliance with the condition. The facts show the church has built the-church, no doubt with the assent of the widow. We think the trust is specific, and the duty imposed on the executors, or one of them, to designate one of' the lots described and make the conveyance, on ’ compliance with the condition by the church. The same strictness as to description of property is not required in wills as in more formal conveyances by deed, and the rule, that that is certain which may be rendered certain, will meet any difficulty in ascertaining the-lots designated. They can be readily ascertained by reference to the title deeds of the devisor; and then the executors have exercised their discretion, as was their duty, in making the selection. This gift must be held valid. A question in addition is presented on .the third clause, which is a gift of stock or shares in a patent, called the “Eagle Wing Screw Propeller.” This is to be “held by my said wife, as agent for the Christian Church • of the United States of America,” and that, as such agent, she control fully the same, and after payment of incidental expenses connected with the management or sale of said interest, that — 651 — the net proceeds arising from the sale or growing out of said interest be paid by her to an authorized trustee to be appointed by said church; and my direction and request to said trustee and church as afore-, said is, that such funds, be used in a manner best to promote the general interest of said church.” The denomination thus designated has" no corporate-existence, no general govérning or representative body,, but is simply composed of a number of independent congregations, having no other connection except general homogeneity in creed and practice. This gift must fail, for several reasons. Assuming that the wife was made the trustee of' the fund,- to pay over to the other trustee, there was-no party in existence who could be the beneficiary,, so far as receiving the fund was concerned, and, in-the nature of things, with such an unorganized body as the said Christian church, there never '' could be. No such trustee is shown to have been appointed, and if one had been appointed, then the trust is not saved under the most liberal construction that has yet been given to such a trust in the case of Dickson et al. v. Montgomery et al., 1 Swan, 367, where the rule stated is, “if the fund be vested in a trustee, to be managed and controlled by him for a lawful, definite, charitable use, the gift will be valid, though there be-no person in being capable of suing for its enforcement.” The purpose in this case is, “ to be used in a manner best to promote the interest of said church, and the cause of God.” It could hardly be claimed — 652 — that this can be a definite trust, under even the most liberal construction that could be given to the language used. This disposes of the questions on this will so far as the devises are to charity. The general gift to the wife, in the first clause, takes effect as to all his property both real and personal, and she may dispose of it as she might choose, by will or deed, except such as has been given to these charitable uses. In the parsonage lot she has-only a life estate given her, and the remainder failing, as to this it descends under our law to his heirs. As heretofore stated, the wife died some years after her husband, first making her last will and testament. Several questions are presented in the construction of this will, which we now proceed to dispose of. By’ the second clause in said will, she gives her “library and secretary containing it to. the Christian church at Johnson City,” and directs it shall always remain in the house, under the charge of the minister •of the church who may occupy the house, as set forth in the will of her husband. This gift, being direct to the church, fails for want of a party competent to take, under the principles heretofore announced. After several special bequests to her relations, and direction as to sale of her real estate and disposition of proceeds, in the eighth clause bequeaths the remainder, after paying off bequests and expenses, to be paid to the heirs of her two sisters equally. We need scarcely cite authorities to show that the word “heirs” here is not used in its technical sense, but — 653 — means children. Such was evidently the sense in which the testatrix used the word, and her intention, when fairly arrived at, is to govern in the construction of her will, and this purpose carried out. Will Residuary devisee. Since the alteration of the law in this State by which a will is made to speak .and take effect as to realty, as well as personalty, as if executed immediately before the death of the testator, a special exception of property from a residuary devise and giving- it to another devisee, will not prevent the excepted property from going to the residuary devisee, if the excepting devise fail because void, if it appear from the whole will that the property was excepted merely for the purpose of giving it to the specific devisee, and not in, order to take it away from the residuary devisee. The children of the two sisters living at the death of the testatrix, the time when by our law the will takes effect, will take this property under this clause. This disposes, we believe, of all the questions presented in this record. A decree will be drawn in accord with this opinion. Costs of this court out of the fund; of the court below, as directed by the chancellor. Turkey, J., dissents as to the house given for a parsonage.