Dickson v. Montgomery

• Citation: 31 Tenn. 348
• Parties: DICKSON et al. v. MONTGOMERY et al.
• Decision Date: 31 December 1851
• Court: Supreme Court of Tennessee

31 Tenn. 348

DICKSON et al.

v.MONTGOMERY et al.

Supreme Court of Tennessee.

December Term, 1851.

On the 16th November, 1849, Christopher Strong made and published his last will and testament, which included this clause:

“Item 6th.--I do hereby give and bequeath to the treasurer of the Clark and Erskine College, situated at due west corner Abbeville District, South Carolina, and to his successors in office, in trust forever, the sum of seventy-four hundred dollars. Two thousand dollars of said sum is to be held in trust by said treasurer and his successors in office, for the endowment of said Clark and Erskine College, to be paid over by said treasurer so soon after the same may come to his hands as it may be required for the advancement of said college; and twenty-two hundred dollars of said sum is to be held in trust by said treasurer and his successors in office, for the benefit of home missions, which is to remain a perpetual fund, the interest of which is to be annually applied, under the direction of the Associate Reformed Synod of the South, for the benefit of home missions; and twenty-two hundred dollars of said fund is to be held in like manner, and the interest thereon is to be applied in like manner, by said Associate Reformed Synod of the South, for the benefit of foreign missions; and the remaining one thousand dollars is to be held by said treasurer and his successors in office, in like manner, and is to constitute a perpetual fund, and the interest arising thereon is to be annually applied, under the directions of the Associate Reformed Synod of the South, for the education of indigent young men who are preparing for the gospel ministry in the Associate Reformed Church. Said Synod is to have the discretion of applying said interest annually, or adding it to the principal, as they may deem best, but it is to be applied to the above, and no other purpose. The above missionary fund may be applied to missionary labors, or for the publication, purchase, or distribution of books, or in any other way that said Synod may direct, for missionary purposes. And I desire that the discretionary powers given to the Associate Reformed Synod of the South in applying the interest on said sums of money shall not be so construed, either in law or equity, so to defeat my object, and that no want of form or technicality shall affect this donation of seventy-four hundred dollars, but that the same shall be applied according to my meaning and intention.”

Subsequently to the making of this will, Strong died, and the will having been duly proved, the executors named therein were proceeding to its execution, when this bill was filed in the chancery court at Charlotte, by the complainants as heirs and legatees, for the purpose of invalidating the foregoing clause of the will, and alleging that the funds therein bequeathed should pass under the residuary clause in the will. At the December term, 1851, Chancellor Brien decreed that the legacy intended to be bequeathed by the above clause was void; from which decree John M. Young, the treasurer of Clark and Erskine College, appealed.

Shackleford, Robb, and J. E. Bailey, for the complainants, the latter of whom argued:

1. That the jurisdiction exercised by the courts of England to enforce and establish bequests to charities is derived from the prerogative rights of the king; and the statute of Elizabeth is part of the chancellor's ordinary and statutory jurisdiction, and is not in force here.

2. That the bequest in question is not a good declaration of a trust, to be enforced by the chancellor in virtue of his general jurisdiction over trusts.

3. That this case falls within the rule settled by this court in the case of Green v. Allen, that where no trustee is appointed the bequest fails.

The first and second points will be considered together.

The king, in England, as parens patriae asserted a prerogative right over the subject of charities, and can, through his officers, call upon the courts of justice to see that justice be done to those of his subjects who are incapable of taking care of themselves. Lord Redesdale, 1 Bligh, 312; cited by Story, Justice, 2 How. 195.

The jurisdiction before the statute of Elizabeth was passed cannot be referred to the jurisdiction in cases of trusts.

To constitute a valid trust there must be sufficient words, to raise it--a definite subject, and a certain or ascertained object. Story's Eq. Jur. 964.

A bequest to charity is wanting in that certainty as to the object which is required in the case of trusts. If the object be ascertained, then it is not a charity.

Trusts are always enforced upon application of the parties interested; charities, upon the application of the attorney-general or the king. As to this jurisdiction being prerogative, see Story's Eq. 1148, 1149.

In England the attorney-general, as a representative of the king, is a necessary party to recover a legacy to a charity, unless it be to the officer of some established institution, as part of its general funds (1 Sim. & Stu. 41); and is a necessary party unless the trusts upon which the legacy is given are identical with those upon which the general funds of the corporation are held. 9 Sim. 610; cited Dan. Ch. Pr. 174.

If this be a trust, who can ask that it be enforced? No person can claim an interest in the fund.

In Morrell v. Lawson, 4 Vin. 500 (cited by Jones, Chancellor, 9 Cow. 482), Lord Chancellor Parker stated the rule to be that where a bill is filed to establish a charity given by will to persons uncertain and incapable of suing, the suit must be in the name of the attorney-general ex necessitate rei, because there are no certain persons entitled, capable of suing in their own names.

In North Carolina, where the statute of Elizabeth is in force, it has been decided that a legacy to foreign missions and the poor saints, nine hundred dollars to be applied to missions, is indefinite, uncertain, and void.

Ruffin, judge, says: “To sustain such a gift the trust must be valid, and, to make it so, must be in favor of such persons, natural or artificial, as can legally take.” 4 Ired. 29. Again, he says: “So far as the attempt goes to support this legacy on the ground that it is to be applied to the objects which the executor might think proper, it must fail, because, if the executor were dishonest enough to keep the money in his own pocket, there is no person that can institute an action to call for any part of the sum, unless it be the next of kin.”“A bequest for religious charity must, like others, be to some definite purpose, and to some body or association of persons having a legal existence with capacity to take.” Page 30. “Wherever the aid of the court is invoked, there must appear some right in the person who makes the application, or for whose benefit it is sought to support a gift made by will.”

Baptist Association v. Hart's Exrs., 4 Wheat.; bequest to charity held void. Why? Because the statute of Elizabeth was not in force in Virginia, and the bequest could not be supported as a trust. It is a general rule that a trust shall never fail for want of a trustee. If the gift be by will, and the testator fail to appoint a trustee, or if the trustee die in the lifetime of testator, the court will appoint one.

Although much is said by Judge Marshall, in the case just cited, about the want of a trustee, yet the case could not, according to the well-settled equity rule just stated, have been decided on that ground. See 5 Har. & J. 392; cited 5 Humph. 231.

In England, courts will enforce trusts in bequest to charities when they will not to persons. Because the jurisdiction is prerogative, and not equitable, and for this reason we must not be misled by declarations of English judges who speak of trusts in connection with charities.

In England, what is the practice? If no trustee is appointed, the king by sign-manual directs how the charity shall be applied. If a trustee and no charter, or, in other words, no act of incorporation, the master settles the disposition of the fund upon a reference--as the English books express it, settles a plan. Story's Eq. 1149. Now, if it was a valid trust, the court could judicially settle the rights of parties, and ascertain their interests.

What is the language used in speaking of wills of this nature? It is a will to establish a charity.

What is a charity? Bequests to charitable objects which are within the letter or spirit of the statute of Elizabeth. Story's Eq. 1153-1158.

The statute of Elizabeth is not in force here. How will we define a charity? What objects shall be charitable, what superstitious?

But it is said that although this statute is not in force here, yet recent investigations show that the jurisdiction existed before the statute. But it is not shown that this was a part of the extraordinary jurisdiction of the chancellor. Who can define the extent of that jurisdiction? When was it exercised, and when refused? The cases produced give but a meagre statement of facts, and do not show the extent of relief granted. Most of them were in the reign of Elizabeth, and in behalf of corporations.

The cases before the statute were few in number--did not embody a system; courts of law did not take notice of the equitable title, and however vague the trusts, enforced the legal title. Spence, 441. The statute was passed to settle the law, to establish charities, and give the chancellors power to enforce them, and now embodies the whole English law. The common-law jurisdiction (if it existed) has been unknown since the passage of the statute, is obsolete in England, was not introduced by our ancestors into this country, and has never been enforced.

The case of Green v. Allen, 5 Humph. 170, sustains the proposition submitted.

2. The bequest is to the treasurer of Clark and Erskine College, and his successors in office, to remain a perpetual fund, etc.The testator did not intend that the person who happened to be...