Crawford's Heirs v. Thomas and Others
| Decision Date | 09 December 1899 |
| Citation | 114 Ky. 484 |
| Parties | Crawford's Heirs v. Thomas and Others. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SHELBY CIRCUIT COURT.
JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. AFFIRMED ON ORIGINAL AND REVERSED ON CROSS APPEAL.
G. G. GILBERT, ATTORNEY FOR APPELLANTS.
W. S. PRYOR, OF COUNSEL.
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This is an appeal from a judgment of the Shelby circuit court. The suit was instituted on the 1st day of May, 1896, by a number of the heirs at law of Paulina Crawford, seeking to invalidate the twelfth and thirteenth clauses of her will, upon the grounds that "they are void for uncertainty," and that "there are no persons who can come into court and say that they are interested in the bequest, and demand the enforcement of the power;" and, in event of their failure to secure this relief, they asked the court to remove the trustee, and to designate the beneficiaries of the fund, and to inaugurate a scheme for carrying the device into effect. The facts, as shown by the pleadings, exhibits, and evidence, are that testatrix died a resident of Shelby county; that her will was admitted to probate at the August term, 1889, of the county court; that an appeal was prosecuted from this judgment to the Shelby circuit court; and that the will was finally established by a judgment of that court, based upon the verdict of a jury, in March, 1892. Subsequently, the executor named therein filed a suit in the Shelby circuit court, in which he alleged that he had paid over all of the special devises recited in the will, and that there remained in his hands, to be disposed of under the residuary clause, $21,867.06; that, by virtue of the power conferred upon him by the will, he selected W. J. Thomas as trustee to take charge of this fund — and asked the court to determine who were the beneficiaries thereof, to construe and guide the trustee and plaintiff in disposing of the fund, and to determine whether or not the devise contained in the thirteenth clause was void for uncertainty. Three representative members of the Christian church, residing in Shelby county, were made parties defendant to this proceeding; and the plaintiff alleged that the heirs at law of testatrix were so numerous as to make it impracticable to bring them all before the court within a reasonable time, and asked the court to designate J. W. Crawford and Oswald Thomas (two of such heirs) to defend for all of them. No process was sued out upon the original petition, but an answer and cross petition were filed by J. W. Crawford and Oswald Thomas, for themselves and other heirs at law of testatrix, in which they said that the bequest contained in the thirteenth clause of the will of testatrix is void for uncertainty and indefiniteness, and cannot be executed by the executor or by any trustee, and asked the court to so adjudge. This litigation ended on the 1st day of April, 1890, with a judgment in which it was held that the devise contained in the thirteenth clause of the will of testatrix was not void for uncertainty, but was upheld as a charitable bequest to aid in the advancement of the principles of primitive Christianity as taught by the Christian church, otherwise known as the "Reform Church," or "Church of the Disciples of Christ." And it was held that the interest on this fund should be devoted to the advancement of the principles taught by that church, and the details of which were left to the trustee, in the exercise of his own judgment.
The clauses of the will which are assailed in this proceeding are as follows: Item 12: Item 13: "I direct that my executor shall pay over to a trustee whom he may select the residue of my estate; the interest of said sum to be used in the advancement of the principles of primitive Christianity as taught by the Christian church subject to the same conditions as are mentioned in item 12th."
Appellees resist the claims of appellants on their merits, and further plead and rely upon the judgment in the case of Thomas' Adm'r. v. Thomas' Adm'x, 87 Ky., 343 (10 R., 223), (10 S. W., 282), as a bar to this proceeding.
In our opinion, this controversy must be determined by the statute in force at the death of the testatrix, in 1889, and when the will was probated, which is in these words: See General Statutes, p. 242, c. 13. By the act of May 12, 1893, which is section 317 of the Kentucky Statutes, these words were added to the statute: "If the grant, conveyance, devise, gift, appointment, or assignment shall point out, with reasonable certainty, the purpose of the charity and the beneficiaries thereof." It was held in Gass v. Wilhite, 2 Dana, 177, that the statute of 43 Eliz., on charitable uses and bequests, was adopted in this State under the rule which embraced all English statutes of a general character which existed prior to 4 Jac., I., and that it was in force here when that opinion was rendered, in 1834. Subsequently the Kentucky Legislature added to the English statute the words, "or for any charitable or humane purpose;" and they also added the second section, so as to remove all difficulty in carrying out the charitable intention of the testator. Mr. Dembitz, in his work on Kentucky Jurisprudence (page 481), in referring to this second section, says: "It goes far to remove the objection of uncertainty in bequests to charities."
There have been conflict and confusions in the adjudications of courts of last resort in construing charitable bequests; and, in undertaking to account for this, Mr. Perry, in his work on Trusts (section 748), says: "The distinctive principles of equity which courts apply to the enforcement and regulation of trusts for charitable uses are confined to those States which have adopted the statute of 43 Elizc. 4, or the principles of the common law in regard to trusts as they existed prior to the statute. In some States the statute is expressly repealed, and such repeal has been held to carry with it all the distinctive doctrines of public charities as they are held in England. In other States the statute is said to have been adopted or to be in force. The law of other States is founded upon what is supposed to have been the common law of the ordinary jurisdiction and practice of the court of chancery prior to the statute. It is not very material whether courts of equity in the several States trace their jurisdiction to the statute itself as in force in their State, or whether they exercise the jurisdiction as original and inherent in courts of equity by common law, anterior to the statute. Substantially the same principles are applied, and the same results are reached, in either case. In Maryland neither the statute nor the principles of the statute have ever had any recognition in their courts. No trust for charity can be established unless the beneficiaries are so certain that they can maintain an action in court in their own names for the benefit of the fund. In Virginia the statute was repealed, and the courts will establish no public trust for a charitable use, except it comes within the strict rules of private trusts. The doctrine of the Maryland and Virginia courts has, in a qualified degree, been followed by the courts of Connecticut, New York, Michigan, Wisconsin, and some other States; but in this State, as said by Mr. Perry, "the courts have carried their equity jurisdiction to the extreme verge of the law, in establishing charities." In the early case of Moore's Heirs v. Moore's Devisees, reported in 4...
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