Caruthers v. Fisk Univ.

• Decision Date: 12 September 1946
• Docket Number: No. 29266.,29266.
• Citation: 394 Ill. 151,68 N.E.2d 296
• Parties: CARUTHERS v. FISK UNIVERSITY.
• Court: Illinois Supreme Court

394 Ill. 151

68 N.E.2d 296

CARUTHERS

v.FISK UNIVERSITY.

No. 29266.

Supreme Court of Illinois.

May 21, 1946.

As Modified on Denial of Rehearing Sept. 12, 1946.

Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Action by Sammie Caruthers against Fisk University for construction of the will of Hattie C. Wilson, deceased, quieting of plaintiff's title to certain realty, accounting for rents collected by defendant thereon since testatrix' death, and recovery of the cost of plaintiff's college education and the amount of the debts and costs of administration of testatrix' estate. From a decree dismissing the bill and adjudicating defendant's title to the realty, plaintiff appeals.

Affirmed.Prescott, Burroughs & Taylor and Werner W. Schroeder, all of Chicago (A. M. Burroughs and Ulysses S. Keys, both of Chicago, of counsel), for appellant.

Myers & Snerly and J. Eugene Loeb, all of Chicago, for appellee.

FULTON, Justice.

Appellant, Sammie Caruthers, by this action seeks a construction of the will of her aunt, Hattie C. Wilson, the quieting of title in herself to certain Chicago real estate known as 6033-35 South Michigan avenue, and an accounting for rents collected by the appellee on this real estate since the death of the testatrix. The appellant further seeks to recover from the university the sum of $6,000, alleged to be the cost to the appellant of her college education. Appellant also seeks to recover the sum of $6,251.36, the amount of the debts and costs of administration in the Hattie C. Wilson estate. This latter sum is claimed on the theory that the executor should have sold the South Michigan avenue property to satisfy debts and costs of administration, rather than using the proceeds of certain bank accounts specifically bequeathed to appellant. Hearing had in the superior court of Cook county, largely on a lengthy stipulation, resulted in a decree dismissing the bill for want of equity and adjudicating the title to the South Michigan avenue property in the university.

Hattie C. Wilson died on September 8, 1936, a resident of Cook county. Her will, which was dated July 20, 1936, was admitted to probate in the probate court of Cook county on November 2, 1936. After making provision for her funeral services and payment of debts, the testatrix, by the third paragraph of her will, provided as follows: ‘I give, bequeath and devise to Fisk University at Nashville, Tennessee, the building, which I own in the city of Chicago, County of Cook, and State of Illinois, and which is commonly known and designated as number 6033 and 6035 South Michigan Avenue, however, subject to the following condition: That the said Fisk University will educate my niece, Sammie Caruthers of number 1731 Scovel Street, Nashville, Tennessee, at the expense of said institution. It is my desire, that, if Fisk University accepts the above described real estate, my niece shall be granted the privilege of pursuing the studies leading to a college degree (or if she desires to go further, that said niece may even be allowed to earn a Master of Arts degree) and while she is so engaged said institution will not charge her any tuition or any of the other fees usually incidental to such courses of study; likewise, if it becomes necessary, said institution shall furnish my niece room and board while she is attending school at Fisk. Acceptance of the above set forth gift by Fisk University shall be taken as an agreement on the part of said institution to comply with the foregoing conditions of this gift.’

After making other specific bequests and devises, including ones to Sammie Caruthers, the twelfth paragraph of the will provided that should any gift, bequest or devise lapse of fail for any reason, the property so bequeathed or devised should go to the appellant, Sammie Caruthers.

On December 14, 1936, the board of trustees of Fisk University, by resolution, accepted the devise, and on December 31, 1936, furnished the executor of the estate with a copy of the resolution. The appellant graduated from high school, either in 1940 or the early part of 1941. On April 6, 1940, the dean of the University wrote the appellant, telling her that the university was ready and willing to comply with the terms of the will in regard to her education and stating that it would be glad to welcome her as a student. A copy of this letter was sent to the executor.

A similar procedure was followed by the university when on August 15, 1941, appellant was again advised by letter that the university stood ready, willing and able to comply with the terms and conditions of the will and again expressed the hope that she would enroll as a student. Copies of this letter were sent both to the executor and to the mother of the appellant. The university sent similar letters in 1941 and 1942. The appellant did not, however, attend Fisk University but rather enrolled in the Tennessee Agricultural and Industrial State College. The reason given for the failure to matriculate at Fisk University was that appellant desired to be a stenographer and that Fisk University did not teach shorthand and typing.

The appellant's contention that the university owes her some $6,000 as the cost of her education in another institution, when viewed in the light of the third paragraph of the will and the facts in this case, cannot be sustained. It is apparent from a careful study of said paragraph that Hattie C. Wilson contemplated and intended a college education free of charge at Fisk University. In this case, the university did everything within its power to comply with the conditions imposed. The appellant's nonattendance at Fisk University was solely on her own choosing.

Appellant, as one of her points for reversal in this appeal, maintains that Fisk University, a Tennessee educational corporation, could not acquire, under its charter and the laws of the State of Tennessee, real estate by devise or otherwise, and that not having the power to take as devisee under the third paragraph, the twelfth paragraph of Hattie C. Wilson's will became operative.

Fisk University received its charter on August 24, 1867. The instrument is silent as to a right or power to acquire real estate by any means, devise or otherwise. This charter was under section 1472 of the act of the Tennessee Legislature of 1857 to 1858. This section is as follows: ‘1472. Corporations created under this article may hold real and personal property, not exceeding in value fifty thousand dollars; may receive property by gift, will, or devise, holding the same for the purposes of their incorporations, with all the lawful conditions imposed by the donor; and may exercise such powers as are incident to private corporations.’ (Code 1858).

In 1875, c. 142, the Legislature of Tennessee passed another act to provide for the organization of corporations. This act by section 1, among other things, provided that charters may be issued for the purpose of conducting educational institutions, such as Fisk University. Section 2 of the 1875 act gave such corporations the general power ‘to purchase and hold, or receive by gift, bequest, or devise, in addition to the personal property owned by the corporation, real estate necessary for the transaction of the corporate business, and also, to purchase or accept any real estate in payment, or in part payment, of any debt due to the corporation, and sell the same.’

The General Assembly of the State of Tennessee in 1895, c. 6 by an enactment entitled ‘An Act for the benefit of incorporated educational institutions,’ provided that all educational institutions incorporated by special act or under the general laws of Tennessee, or those to be incorporated in the future, were given power and authority to acquire real estate by gift, bequest or devise for educational purposes, subject only to such limitations and conditions as the donor or testator might attach.

In 1911, the General Assembly of the State of Tennessee enacted what was then known as chapter 19, or Senate Bill No. 123, entitled ‘An Act to authorize and empower corporations heretofore created for the purposes of education or learning under the provisions of the Acts of the General Assembly of Tennessee enacted prior to the adoption of the Constitution of said State adopted in the year 1870, to continue their corporate existence and to become vested with all the powers, rights, and privileges granted to and become subject to all the penalties, limitations, and restrictions imposed upon corporations organized for the general welfare of society and not for profit by the Act entitled ‘An Act to provide for the organization of corporations,’ passed March 19, 1875, and approved March 23, 1875, and all subsequent Acts amendatory thereof in lieu and in place of the powers, rights, and privileges granted to and the penalties, limitations, and restrictions imposed upon said corporations as originally created.'

Sections 1 and 2 of this act are as follows: ‘Section 1. Be it enacted by the General Assembly of the State of Tennessee, That any corporation heretofore created for the purpose of education or learning under the provisions of the Acts of the General Assembly of Tennessee enacted prior to the adoption of the constitution of said State adopted in the year 1870, which may at any time before the final dissolution of such corporation as provided by law desire to amend its charter for the purpose of continuing its corporate existence and becoming vested with all the powers, rights, and privileges granted to, and becoming subject to, all the penalties, limitations, and restrictions imposed upon corporations organized for the general welfare of society and not for profit by the Act of the General Assembly of Tennessee, entitled ‘An Act to provide for the organization of corporations,’ passed March 19, 1875, approved March 23, 1875, and all subsequent Acts of said General Assembly as amendatory thereof in lieu and in place of...