Charles McMicken Perin, Clyde Perin, and Mary Perin, Infants By Their Father and Next Friend, Franklin Perin, Complainants and Appellants v. Freeman Carey, William Crossman, and William Hewson, Executors of the Last Will and Testament of Charles McMicken, Deceased the City of Cincinnati, Elizabeth Randall, David Stelle, and Elizabeth Stelle, His Wife, and Andrew McMicken, Respondents
| Decision Date | 01 December 1860 |
| Citation | 16 L.Ed. 701,65 U.S. 465,24 How. 465 |
| Parties | CHARLES MCMICKEN PERIN, CLYDE PERIN, AND MARY E. PERIN, INFANTS, BY THEIR FATHER AND NEXT FRIEND, FRANKLIN PERIN, COMPLAINANTS AND APPELLANTS, v. FREEMAN G. CAREY, WILLIAM CROSSMAN, AND WILLIAM M. F. HEWSON, EXECUTORS OF THE LAST WILL AND TESTAMENT OF CHARLES MCMICKEN, DECEASED, THE CITY OF CINCINNATI, ELIZABETH RANDALL, DAVID P. STELLE, AND ELIZABETH STELLE, HIS WIFE, AND ANDREW MCMICKEN, RESPONDENTS |
| Court | U.S. Supreme Court |
THIS was an appeal from the Circuit Court of the United States, sitting in equity, for the southorn district of Ohio.
The bill was filed by the appellants to set aside the devises and bequests in the will of Charles McMicken to the city of Cincinnati, in trust for the foundation and maintenance of two colleges.
The nature of the devise is stated summarily in the head note of this report, and more particularly in the opinion of the court.
The bill specified the following objections to the validity of the devises and bequests:
1. 'Said of Cincinnati was formerly a municipal corporation, created and having certain powers conferred upon it by an act of incorporation of the Legislature of the State of Ohio, but it now exists only as a political division of the State, under a general law having a uniform operation throughout the State, and is without any power or authority to accept said devises and bequests, to acquire or hold the title to the property mentioned in said devises and bequests for the purposes therein expressed, or to execute the trusts or any of them therein set forth and declared.
2. 'Said Charles McMicken, deceased, has undertaken, by said alleged devises and bequests, to render a large amount of real estate above described, situate in said city of Cincinnati, in said State Of Ohio, and an indefinite amount of real estate to be hereafter purchased in said city of Cincinnati, forever unalienable, contrary to the law and public policy of said State.
3. 'There are no persons mentioned or referred to as beneficiaries, under the trusts attempted to be created by said will, who are so described that they are entitled to and can claim the benefit of said trusts or any of them, and the same are therefore void for uncertainty.
4. 'By the terms of said will, the establishment of the regulations necessary to carry out the objects of the endowment attempted to be made, and the power to appoint directors of the institutions therein named, are vested in the corporate authorities of the city of Cincinnati, but there are no persons, either artificial or natural, who fall within or are sufficiently identified by said description.
5. 'The trusts attempted to be created by said will are uncertain and illegal for the further reason, that the distribution of the trust fund between the two objects, of the education of white boys and girls and the support of poor white male and female orphans, is to be left to the unrestrained discretion of the city of Cincinnati, or of the corporate authorities of the city of Cincinnati.
6. 'The trust attempted to be created by said will for the support of poor white male and female orphans is illegal and void, because, without authority of law, and in violation of the statutes and public policy of the State of Ohio, it is therein required that before they shall receive any benefit therefrom, their guardians, or those in whose custody they are, shall have first entirely relinquished their control of them to the said city; and provided, that those orphans who may have remained until they have reached any age between fourteen and eighteen years shall be bound out by the said city to some proper art, trade, occupation, or employment.'
The respondents demurred to the bill, which was sustained by the Circuit Court and the bill dismissed. The complainants appealed to this court.
It was argued by Mr. Headington and Mr. Ewing for the appellants, and by Mr. Pugh and Mr. Taft for the appellees.
A separate argument was filed by Mr. Headington, of one hundred pages; a joint one by Mr. Ewing and himself, of twenty pages; an argument by Mr. Pugh, of thirty pages; and one by M. Taft and Mr. Perry, of eighty-seven pages.
The reporter is embarrassed by the quantity of matter, all of which he would lay before his readers if it were possible. But being obliged to select only a part, he prefers to omit the arguments relating to the English system of trusts and charities, with which the profession are doubtless acquainted, and, after some general points, to confine his attention to those arguments which relate especially to the state of the law in Ohio.
Mr. Headington and Mr. Ewing laid down there general propositions:
In behalf of the appellants, we claim that the devise and bequest to the city in trust should be held void, on the grounds that the trustee, the city of Cincinnati, is incapable of taking and executing the trust, and that the cestuis que trust are dependent on the selection and designation of the trustee; consequently, that there is not, nor can there ever be, either trustee or cestui que trust.
And that in violation of the Constitution of Ohio, it withdraws the colleges from the power of the Legislature, and makes them immortal, and it creates a perpetuity in the lands with which they are endowed, making them inalienable forever, which is against the letter and the policy of the law.
The course of argument led to the examination of this devise, irrespective of the law of charities, under the ordinary rules of equity; and afterwards as a charity. Upon both of these grounds the devise was claimed to be void, and both points were investigated at great length.
The counsel then spoke of the course of decisions in England, commented on by this court, and proceeded as follows:
3. This system is not ours; it is not the law of this court, nor is it the law of Ohio.
In 1795, the Northwestern territory adopted from the Virginia code a law adopting British statutes prior to the fourth year of James I. The Ohio Legislature enacted it in 1805, and repealed it in 1806; so we have none of it. We have in Ohio laws respecting religion, education, and charities, but they are to be construed, as we submit, precisely as if there had never been a statute of Elizabeth in England.
But it is said there has been a course of legislation in Ohio tending to the same result with the statute of Elizabeth, and that pro tanto, at least, the decisions under that statute ought to be regarded. An analysis of those laws will, I think, set this question of legislative sanction at rest. Each act which that Legislature has ever passed on the subject performs its own special office distinctly and exactly, and leaves everything else under the implied negative, that the Legislature did not choose to include it. They are six in number, providing:
1. That a devise to the poor of a township shall vest the estate in the trustees of the township, for the use of the poor
2. A devise to the State of Ohio, or to any person whomsoever, in trust for the common-school fund, the same shall be vested in the common-school fund.
Swan, 832, sec. 5; 839, sec. 11.
3. The respective township boards of education shall have power to take and hold in trust for the use and benefit of any 'central or high school, or sub-district school in the township.'
Swan, 852.
4. The trustees of the lunatic asylum may take and hold in trust any lands, & c., conveyed, &c., to be applied to any purpose connected with the institution.
Swan, 556 and 127.
5. Townships which have been lawfully laid off and designated shall have power to receive any devise, &c., to the township, for the benefit of the township, either for a public square or other useful purpose specified in such devise, & c., and shall hold the same in trust for the township, for the purposes specified in such conveyance.
6. The trustees of any university, college, or academy, (created according to the provisions of the act in which the authority is found,) may hold in trust any property devised, bequeathed, or donated, upon any specific trust, consistent with the objects of such corporation.
Now, all these provisions are very distinct and exact, and require no loose or irregular construction. On the contrary, they seem intended to prevent it, by laying down plain rules for conveyances to all such uses as the Ohio Legislature thought proper to regard with favor; and if any of the requisites of an ordinary conveyance in trust is dispensed with, it is written down in plain terms.
There was a clause in a statute of 1838 (36 Ohio Laws, p. 35, sec. 43) which admitted of a very large construction. It directed the superintendent of common schools 'to take an account of all funds and property given in any way for the support of education, except chartered colleges, and to carry into effect, as nearly as may be, the object of the trust.'- In the revision under the Constitution of 1851 this was repealed, and in its stead the attorney general is directed 'to cause proper suits to be instituted at law and in chancery to enforce the performance of trusts for charitable and educational purposes, and restrain the abuse thereof.' All that is loose and latitudinarian in the act of 1838 is excluded from the act of 1852, namely: 'funds and property given in any way,' and directions to carry 'into effect, as nearly as may be, the object of the trust.' 'As nearly as may be' cy pres adopted and repealed, not repealed by accident, but because the legal world condemned it. The attorney general, in its stead, is directed to enforce the performance of trusts—valid trusts, of course, such as the laws authorize.
The statute of March 26, 1856, is relied on by defendants' counsel. It provides:
'That whenever any person shall by deed, devise, gift, or otherwise, set apart any lands, moneys, or effects, as an endowment of a school or academy, not previously established, and shall not...
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