Chapman v. Newell
| Decision Date | 14 March 1910 |
| Citation | 146 Iowa 415,125 N.W. 324 |
| Parties | CHAPMAN ET AL. v. NEWELL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Louisa County; Jas. D. Smyth, Judge.
An action to construe the will of S. N. Spurgeon, deceased, and to adjudge void certain bequests and devises provided for therein, and to have the property sought to be disposed of by said provisions declared intestate property. The demand was resisted by the executor, and the cause tried to the court upon the will in question and certain agreed facts quoted in the opinion and upon oral testimony. The court dismissed the petition, and plaintiffs appeal. Affirmed.E. B. Tucker and Wade, Dutcher & Davis, for appellants.
C. A. Carpenter, L. A. Reiley, and Oscar Hale, for appellee.
The testator died August 27, 1907, a widower and childless. He had long been a resident of Louisa county and had accumulated property, the amount of which does not seem to have been proven on the trial, but is stated by counsel to be somewhere from $20,000 to $25,000, and so far as shown he was not largely indebted. On May 10, 1902, he executed the will in controversy. It had been prepared for him by counsel and appears to have been drawn according to his directions. The instrument is too long to be incorporated in full in this opinion; but we will quote such portions as are necessary to an understanding of its terms. In an introduction to the instrument, he first speaks of his widowed and childless condition, and states his reasons for not leaving his estate to his collateral relatives. He then proceeds as follows:
“I have lived since my youth in Louisa county, Iowa, and have accumulated my property here. I have shared the hardships of pioneer life with those who first settled in Louisa county, and a large number of those early pioneers, who were endeared to me by the warmest ties of friendship, together with a number of my family and relatives, are buried in the cemeteries in Concord and Columbus City townships. I am also under grateful obligations to all my present neighbors and friends of the present generation, who by their uniform kindness and friendship have cheered me in my declining years, and it is my desire to so leave the property that I have accumulated that the friends, both of my youth and old age, may be remembered. In my opinion, no more fitting tribute can be made to the memory of those that are dead than to provide in a measure for preserving and beautifying their last resting place and that there is no better way of remembering the present generation than to assist so far as I can, in advancing the interests of the public schools of this county. Therefore it is my desire that after the expenses of my last sickness and funeral and administration upon my estate are paid the property be disposed of in the following manner:
First. I give, devise and bequeath the sum of two thousand dollars ($2,000) to be held perpetually in trust and invested as hereinafter set forth, and the interest or income thereof to be paid to the trustees or managing officers of Columbus City cemetery, in Louisa county, Iowa, yearly; the interest or income from said investment to be used by said trustees in improving, caring for and beautifying said burial grounds.”
In the second and third paragraphs he bequeaths, upon like terms and conditions, the “sum of $1,000 each for the benefit of Indian Creek cemetery and Fredonia cemetery,” both in Concord township in Louisa county. The eighth or residuary clause of the will is as follows: “All the rest and remainder of my estate including the proceeds of the land sold, and after the payments of the legacies above named I give, devise and bequeath absolutely and without reservation to the permanent school fund of Louisa county, Iowa.” In subsequent paragraphs he provided for the appointment by the court of a trustee, who shall take charge of the bequests made in the first, second, and third paragraphs, which trustee shall lend the same on the security of Louisa county farm lands or, in certain contingencies, upon like security in adjoining counties, or investment may be made in safe bank stock. He also directs that the trustee make a yearly report of his trust to the district court, and limits the amount of compensation he shall receive for his services.
The plaintiffs deny the validity of the first, second, third, and eighth paragraphs above quoted, and insist that as to the moneys and properties which the testator sought to devote to the benefit of the cemeteries named and the bequest to the permanent school fund of the county he must be held to have died intestate. The grounds of these contentions will be more specifically noted later in this opinion.
1. Plaintiffs allege that they are collateral heirs of the testator who are entitled to share in any intestate property left by him. This allegation appears to be covered by the denials of the answer, and we find no evidence or concession by which the relationship is established. However, as no point is made by appellee upon this apparent failure of proof, we shall consider the appeal upon its merits.
2. No claim is made that the testator was of unsound mind, or that the will was procured by undue influence. Its due execution is not denied, and it has been properly probated. The bequests for the benefit of the several cemeteries named (all of which are of a public character) are said to be void: First, because the will in this respect ignores or fails to conform to the statute (Code Supp. tit. 3, c. 5a); and, second, because it undertakes to create a perpetuity in violation of Code, § 2901. We think neither objection can avail. As to the first, the statute relied upon does no more than to authorize the “owner or owners of a cemetery to procure the appointment of a trustee who shall be authorized to receive, invest, manage, and control moneys given by way of a permanent fund or endowment, the income of which shall be applied to the use and maintenance of such cemetery. The effect of the statute is to permit perpetual trusts or endowments for privately owned cemeteries. It has no application either in terms or by inference to public cemeteries, the maintenance of which is in our judgment a charitable use and therefore within the recognized exceptions to the operation of the statute against perpetuities. Lord Camden defines a “charitable gift” to be “a gift to general public use which extends to the poor as well as to the rich.” Jones v. Williams, Ambl. 651. See, also, Coggeshall v. Pelton, 7 Johns. Ch. (N. Y.) 292, 11 Am. Dec. 471. It is “whatever is given for the love of God or for the love of your neighbor in the catholic and universal sense.” Vidal v. Girard, 43 U. S. 127, 11 L. Ed. 205. Something done or given for the benefit of our fellows or of the public. Knight's Estate, 159 Pa. 500, 28 Atl. 303. Any general public use extending to all, rich or poor, is not void, although in some forms it creates a perpetuity. Piper v. Moulton, 72 Me, 159. The statute, 43 Eliz., defining charitable uses, enumerates, among others, the relief of the poor, the promotion of education, the repair and maintenance of public buildings and works, including improvement of ports, havens, bridges, and other enterprises of a public character. And at common law any purpose was construed to be charitable which was within the principle and reason of that statute, though not expressly named in it, and the term is given even a wider and more comprehensive meaning in modern times than was recognized in the reign of Elizabeth. Jackson v. Phillips, 14 Allen (Mass.) 551. In Donohugh's Appeal, 86 Pa. 306, “charity” is defined as something done out of good will, benevolence, and a desire to add to the happiness or the improvement of one's fellow beings. In Ould v. Hospital, 95 U. S. 303, 24 L. Ed. 450, a charitable use, where neither law nor public policy forbids, is said to be “almost anything that tends to promote the well-doing or well-being of social man.” Other courts have said the real test whether an enterprise is charitable is its purpose, and, if its purpose is to make profit, it is not charitable. Long v. Rosedale (C. C.) 84 Fed. 135. Gifts for the improvement of a city, a devise to bring water into a town, and to build a town hall have been held to be charitable. Drury v. Natick, 10 Allen (Mass.) 178;Jackson v. Phillips, 14 Allen (Mass.) 552.
That the providing and maintenance of a suitable place for the burial of the dead is one of public use and benefit is not open to question. A decent respect for the memory of the dead is a universal characteristic of civilized society. No depth of misfortune or poverty can deprive one of its members of the right to a grave, and a rule of law which would deny a generous testator the right to establish a trust for such uses, and yet uphold a trust to pave a street, maintain waterworks, improve navigation, build bridges, maintain churches and hospitals, would lack the elements of both reason and consistency. Upon the principle that a trust for the maintenance of the donor's own burial lot is not in the nature of a public use or public charity, some courts have permitted avaricious descendants to transmute the graves of their ancestors into cash. See cases cited in 5 Am. & Eng. Ency. Law (2d Ed.); but this rule is not universally accepted. There have also been suggestions that cemeteries held by private or corporate ownership are not proper beneficiaries of such trust; but that question is not now before us. The greater weight of authority tends to sustain trusts for the maintenance of cemeteries which are provided for or given to public use. Webster v. Morris, 66 Wis. 366, 28 N. W. 353, 57 Am. Rep. 278;Sheldon v. Stockbridge, 67 Vt. 299, 31 Atl. 414; Ralston's Estate, 1 Chest. Co. Rep. (Pa.) 482; In re Vaugh, Chancery Div. 187; Hopkins v. Grimshaw, 165 U. S. 352, 17 Sup. Ct. 401, 41 L. Ed. 739;Mannix v. Purcell, 46 Ohio St. 102, 19 N. E. 572, 2 L. R. A. 753...
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