Bailey v. Waddy

• Decision Date: 23 June 1922
• Citation: 243 S.W. 21,195 Ky. 415
• Parties: BAILEY ET AL. v. WADDY ET AL.
• Court: Kentucky Court of Appeals

243 S.W. 21

195 Ky. 415

BAILEY ET AL. v. WADDY ET AL.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Shelby County.

Suit between Erma B. Waddy and others and Louise W. Bailey and others, involving the construction of the will of George W Waddy, deceased, and the determination of the validity of a conveyance by George W. Waddy as trustee of Louise W. Bailey in which Louise W. Bailey and her husband joined. From a judgment sustaining the devise in the will and the conveyance, Louise W. Bailey and others appeal. Affirmed.

E. B Beard and George L. Pickett, both of Shelbyville, for appellants.

Willis, Todd & Bond, of Shelbyville, for appellees.

TURNER C.

Two questions are presented by this appeal: First, whether certain devises in the will of George W. Waddy, deceased, to Milligan College of Tennessee, are void because of their uncertainty or because of the impossibility of performing them; and, second, whether a conveyance by George W. Waddy as trustee of Louise W. Bailey, in which conveyance Louise W. Bailey and her husband joined him as trustee, to George W. Waddy individually, is void, and whether his estate after his death still holds the property therein conveyed in trust for Louise W. Bailey under the terms and conditions of her mother's will just as George W. Waddy had theretofore held it.

Paragraphs 3, 4, and 5 of the will of George W. Waddy, deceased, present the first question and are as follows, to wit:

"III. All the balance of my estate, real and personal of whatever kind, nature or character, not included in paragraph I and II above, I devise, give and bequeath unto Milligan College of Tennessee, an educational institution incorporated under the laws of the state of Tennessee, owned and controlled by the Church of Christ in that state, and located at Milligan College, Carter county, Tennessee, for the establishment of an educational fund or endowment to be known as the 'G. W. Waddy and Susie Waddy Memorial Fund,' for the support of the John W. McGarvey Bible Chair, which chair is hereby established and named; for the education of preachers of the simple gospel of our Lord and Savior through the teachings of the Bible in its simplicity and in its integrity and with the following conditions:

(1) The said fund shall be securely invested, conserved and made a perpetual endowment, by said college, and interest or income thereof alone being available for the uses herein stipulated.

(2) The credibility, inerrancy, infallibility, and the inspiration of the Holy Scriptures with their all sufficiency in matters of faith shall be taught and their fundamental teachings emphasized especially the virgin birth of our Lord Jesus Christ, His perfect life, His infallible teachings, His death, burial and physical resurrection from Joseph's tomb; and His reappearance in fleshly form until the time of His ascension to Heaven; the universal prevalence of sin in the human race, and the full and free redemption therefrom through the blood of our Lord Jesus Christ; the commission to disciple all nations; the immersion of believers into Christ into water, and the necessity and importance of a new life hid with Christ in God; the teachings of the apostles pertaining to this life and the life to come, the resurrection from the dead and the final reward of the righteous and the punishment of the disobedient. It is further stipulated that the Bible itself shall be used as the text-book and that before any professor or teacher shall be permitted to occupy this chair that he shall state to the trustee of this fund in writing his perfect willingness to teach the same with earnestness and energy.

IV. After my death and during the life of my wife, Mrs. Erma B. Waddy, I direct that a sum equal to the annual interest on the said fund at a rate of five per centum be paid on the first day of January each year, to the said Mrs. Erma B. Waddy until her death or remarriage, the interest to be paid to Mrs. Erma B. Waddy. To insure the prompt and faithful payment of the above-stipulated interest from this fund to the above-named Mrs. Erma B. Waddy, the trustees of Milligan College shall, before taking possession of this fund, execute and deliver to the aforesaid Mrs. Erma B. Waddy, in the penalty of an amount equal to the sum to be turned over to Milligan College, conditioned to faithfully pay over said interest as hereinbefore stated.

V. All the remainder and residue of my property, of whatever kind or nature, of which I may die seized and possessed I hereby give, devise and bequeath unto said Milligan College of Tennessee, for the uses and purposes and subject to the conditions set out in paragraphs III and IV, hereinbefore."

George W. Waddy died childless and this action was instituted by certain of his heirs at law seeking to have the devise referred to in these three quoted paragraphs declared to be null and void, and that his heirs at law be adjudged to be the owners of such propperty as undevised estate. A trust company was designated in his will as executor, but, having declined to act as such, his widow was by the county court appointed administratrix with the will annexed.

The contention is, not that the certainty of the beneficiaries is not specifically set forth in this devise, but that the purposes of the charity created thereby are not set forth with reasonable certainty, and under our statute, therefore, the devise is void, and, further that the execution of this devise is impossible of performance because, under modern conditions and in the light of modern progressive ideas the things which he requires to be taught cannot and will not be taught and promulgated in any conscientious institution or by any self-respecting professor.

The evidence discloses--a fact generally known--that for a number of years there has existed in the Christian Church of which decedent was a member, a controversy between what are known as the progressive and the conservative wings of that church, the one insisting upon what may be termed a modern or progressive interpretation of certain provisions of the Bible, and the other adhering to the older or what may be termed the conservative or literal interpretation, the latter supposed to have been generally accepted in the earlier days of that denomination.

It is apparent from the quoted provisions of the will that decedent belonged to the latter class, and that this charity was created by him in his will in the light of his conservative views on these subjects, and for the purpose of having those views taught and promulgated with the income from the property so devised in trust. Having, as he plainly must have had, very decided views upon the subjects treated of, it seems plain that he had sought to find an institution of learning supported and fostered by the church to which he belonged, which was operated and controlled by persons having views similar to his own; and, although it appears in the evidence that he had never been to Milligan College, it is fair to assume that he had investigated that institution and had satisfied himself it was conducted by and controlled by persons in his church who were in sympathy with his conservative views, and for that reason selected that institution as the beneficiary of his devise because he believed from his investigation it would and could carry out better than some other the ideas expressed in his will.

It is in evidence by an ex-president of Milligan College after an examination of the provisions of the Waddy will that that institution is now fitted and qualified to teach the things which decedent therein directs to be taught, and that he believes that institution is prepared to carry out the terms of the bequest, that, while there is a difference in the views of ministers of the Christian Church, and they do not all teach the credibility, inerrancy, infallibility, and the inspiration of the Holy Scriptures, it is a matter of individual opinion and interpretation among them, and there has been no split or cleavage in the church on that account, but that the teachings in Milligan College are thoroughly conservative and in harmony with the conservative view.

The present president of Milligan College also testified he had read the provisions of the Waddy will, and that they were absolutely consistent with the teachings of Milligan College, and that the institution was able and willing to teach the doctrines therein enunciated and is doing the same now; that Bethany College was the birthplace of the Christian Church, and from an interview with the president of that institution he sees no difference in its teachings and those of Milligan College, and that the present board of trustees of the latter institution believed as Mr. Waddy believed as expressed in the provisions of his will; that the Bible is the main text-book used in teaching ministerial students at Milligan College, although various other commentaries are referred to; and that Milligan College is so organized as to assure the permanency of the views of the present board of trustees.

So that it is plain Mr. Waddy selected an institution in which to endow a chair where ministerial students would be taught the things in which he believed, and where there would be carried out the ideas which he had and expressed. It seems clear that the will was written in the light of these differences of opinion between members of the Christian Church, and it is apparent that the fundamental idea in the testator's mind was to create a trust fund to be used in such manner as to teach and carry forward the things in which he so ardently believed.

From these considerations it cannot be said that he has failed to point out accurately and correctly the purposes of this trust. His...