Biscoe v. Thweatt

• Decision Date: 25 March 1905
• Parties: BISCOE v. THWEATT
• Court: Arkansas Supreme Court

86 S.W. 432

74 Ark. 545

BISCOE v. THWEATT

Supreme Court of Arkansas

March 25, 1905

Appeal from Phillips Chancery Court, JOHN M. ELLIOTT, Chancellor.

Affirmed.

STATEMENT BY THE COURT.

This suit involves the construction of the will of Mrs. Laura E B. O'Connor, in so far as the sixth and seventh clauses are concerned, which are as follows:

"Sixth. I bequeath all that part of block seventeen (17), in that part of the city of Helena, Ark., known as "New Helena," which I die seized of, together with the streets adjoining the same and which I own, to my beloved son, Thomas L. Biscoe, for his natural life, and after his death to the vestrymen of St. John's Episcopal Church, of Helena, Ark., and their successors in office, with full power to them to sell, exchange or dispose of the same whenever in their judgment it is best to be done, and the said property or any property received by them in exchange therefor, or the proceeds of any sales thereof made by them, they shall shall use for the benefit of said St. John's Church, as they may deem best for its interests.

"Seventh. All the residue of my estate I devise and bequeath to my beloved son, Thomas L. Biscoe, for his natural life, and after his death to the heirs of his body; but if he dies without any heirs of his body, all of said property shall vest in the vestrymen of St. John's Episcopal Church, of Helena, Ark., to be used by them or disposed of in the same manner and for the purposes as provided for in clause six (6) of this instrument."

The case was tried on an agreed statement of facts as follows "It is agreed that St. John's Protestant Episcopal Church, of Helena, Ark., was regularly organized in Helena Ark., on November 29, 1853, and that a vestry was then elected and properly organized, and has maintained a continuous organization ever since. That, under and by authority of the canons and laws of said church, the vestry are authorized, empowered and permitted to take by gift or purchase real estate, and use and control the same for the benefit of the church. That the canons and laws vest the title to the real estate of the church in the rector wardens, and vestrymen as trustees for the use of the church. That St. John's Protestant Episcopal Church, of Helena, Ark., in the name of its rector, wardens and vestrymen, have bought and sold real estate, and have received by gift and by devise, and now hold valuable real estate besides the church house. That said facts were fully known to the late Mrs. L. E. B. O'Connor; that the late Mrs. L. E. B. O'Connor was, at the time of her death, and had been for many years an active member of said church, and was personally acquainted with each of the vestrymen, and knew that said vestry was a continuous body.

"1. T. L. Biscoe and Mrs. Blanche Biscoe--nee Prewett--were married in St. Francis County, Arkansas, on the 15th day of September, 1882, and there was never any issue of this marriage.

"2. T. L. Biscoe had no heirs of his body on the day of , 1895, nor had he any at the date of his death in May, 1899.

"3. The will of Mrs. L. E. B. O'Connor was executed on the day of , 1895, and she departed this life on the day of March, 1899.

"4. Thomas L. Biscoe was the son and sole surviving heir of Mrs. L. E. B. Connor.

"5. St. John's Protestant Episcopal Church, of Helena, Ark., is now, and was at the date of the execution of the will of Mrs. L. E. B. O'Connor, and at the date of her death, an unincorporated religious society."

Judgment affirmed.

Jacob Fink, J. M. Prewett and N.W. Norton, for appellants.

An unincorporated society cannot hold property. 28 S.W. 267; 23 Pet. 99; Sand. & H. Dig. §§ 6381-2. The will expresses no definite purpose for the trust fund to be used. 26 N.E. 803; 25 N.E. 730; 28 N.E. 880. The gift to the vestrymen is void. 3 Ark. 198; 13 Ark. 91; 15 Ark. 702; 19 Ark. 69; 49 Ark. 128; 51 Ark. 61; 53 Ark. 259; 49 Mich. 440; 58 Ark. 303.

Rose, Hemingway & Rose, for appellees.

The devise to trustees of an unincorporated society is valid in Arkansas. 107 U.S. 166; 17 Ark. 483; 107 U.S. 174; 5 Am. & Eng. Enc. Law, 918; Kirby's Dig. § 312; Perry, Trusts, § 730; 7 Chy. App. 232; 45 Me. 122; 50 Texas, 416; 10 Pa.St. 23; 35 Pa.St. 316; 16 N.H. 149; 45 Me. 552; 18 Vt. 511; 158 Ill. 631; 22 Conn. 125; 66 Wis. 397; 73 Wis. 357; 171 Mass. 269; 71 Conn. 122; 62 N.J.Eq. 219; 24 Oh. St. 525; 16 Pick. 107; 33 S.W. 86; 139 Mass. 477; 54 S.W. 197; 49 S.W. 436; 43 A. 642; 49 Ark. 125; 67 Ark. 517; 71 Conn. 122; 79 S.W. 831.

OPINION

HILL, C. J., (after stating the facts.)

The devise to the vestry of St. John's Episcopal Church of Helena, Ark., is attacked on these grounds: (a) The church is an unincorporated religious body, incapable of holding the trust; (b) the trust is too indefinite for fulfillment, and the discretion of the trustees is substituted for the design of the testator; (c) the devise offends against the rule against perpetuities; and (d) the seventh clause fails, because the devise over to the church is conditional on an indefinite failure of issue in the first taker, rendering it void.

1. The first three of these propositions are decided adversely to appellants by the Supreme Court of the United States, in a case involving an estate which was partly real estate in Arkansas:

"By the law of England from before the statute of 43 Eliz., c. 4, and by the law of this country at the present day (except in those States in which it has been restricted by statute or judicial decision, as in Virginia, Maryland and more recently in New York) trusts for public charitable purposes are applied under circumstances under which private trusts would fail. Being for objects of permanent interest and benefit to the public, they may be perpetual in their duration, and are not within the rule against perpetuities; and the instruments creating them should be construed so as to give them effect if possible, and to carry out the general intention of the donor, when clearly manifested, even if the particular form and manner pointed out by him cannot be followed. They may, and, indeed, must, be for the benefit of an indefinite number of persons; for, if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery." Russell v. Allen, 107 U.S. 163, 27 L.Ed. 397, 2 S.Ct. 327. The same case further held a devise to an unincorporated charity to be valid.

Mr Perry answers one of the contentions of appellants in this wise: "It is well settled that a devise for a charitable use to church wardens, although not a corporation capable in law of holding and transmitting property, will be sustained." 2 Perry on Trusts, § 730. The cases of Russell v. Allen, supra, and Jones v. Habersham, 107 U.S. 174, 27 L.Ed. 401, 2 S.Ct. 336, dispose of, on reason and authority, these questions against appellant. There are authorities contrary to the views therein held, but they are chiefly in States which have by statute or judicial decision abolished the statute of charitable uses, 43 Elizabeth, c. 4. This statute enumerated objects considered charitable, and placed devises, gifts and conveyances to such charitable uses without the statutes of mortmain, and enabled courts of chancery, in the exercise of their inherent jurisdiction over matters of trust and confidence, to give force and effect to such charitable uses as fell within...