From
Wabash Circuit Court; A. H. Plummer, Judge.
Action
by George P. Dykeman and others against Albert G. Jenkines
executor of the will of David D. Dykeman, deceased, and
others. From a judgment for defendants, the plaintiffs
appeal.
Affirmed.
Spencer
C. J. Myers, J., not participating.
OPINION
Spencer, C. J.
This is
an action brought by appellants, as heirs at law of David D.
Dykeman, deceased, to have declared invalid certain
provisions of his will, whereby certain portions of his
property were devised to appellee, Albert G. Jenkines, the
executor under the will, in trust for certain
purposes. The amended complaint is in two paragraphs, to each
of which demurrers were filed by the several appellees,
Albert G. Jenkines, executor, Albert G. Jenkines, trustee,
and the Board of Commissioners of Cass County. Each of these
demurrers was sustained and the questions presented by this
appeal arise from the rulings of the trial court thereon.
The
provisions of the testator's will which appellants seek
to have declared invalid are as follows:
"Item 21. I hereby give, devise and bequeath unto my
executor hereinafter named, my Pollard farm * * * (here
follow location and description) * * * in trust for the
following uses and purposes, to-wit: To convey and transfer
said Pollard farm to the City of Logansport, Indiana, by
proper instrument of conveyance, to be had and held by said
city in trust forever for a public park, * * * (here follow
the terms and provisions of a contract to be entered into by
said City of Logansport and the executor as a condition
precedent to the making
of such conveyance) * * *. In case the City of Logansport
refuses to accept the title to said property in trust as
herein provided and to enter into said agreement and
contract, then in that case, after the expiration of three
years from my death, said Pollard farm shall be and become
part and parcel of the fund hereinafter constituted and
provided for the support of the 'Mary Dykeman
Hospital' and shall be sold by my executor as hereinafter
provided in Item twenty-third of this will, and the proceeds
of said sale added to said fund for the support of said
'Mary Dykeman Hospital.'
Item 22. I hereby give, devise and bequeath unto my executor
hereinafter named a tract of twenty (20) acres in the
northwest corner of Paul Longlois Reserve in Township number
twenty-seven (27) north, of range number two (2) east, in
Cass County, Indiana, to include the great spring situated
thereon, more particularly bounded and described as follows,
to-wit: * * * (here follow description of the tract and of an
easement to be appurtenant thereto) * * *, in trust, however,
for the following uses and purposes, to-wit: To convey and
transfer said twenty (20) acre tract and said easement for a
road to the Board of County Commissioners of Cass County,
Indiana, to be had and held by said board of
county commissioners, together with the great spring thereon,
that empties its waters into the Wabash, in trust forever as
a public park and picnic resort * * * (here follow the terms
of a contract similar to that provided in Item 21) * * *. In
case said Board of County Commissioners refuse to accept the
title to said park property in trust as herein provided and
to enter into said agreement and compact, then and in that
case, after the expiration of five years from my death, said
described property shall be and become part and parcel of the
funds hereinafter constituted and provided for the support of
the 'Mary Dykeman Hospital', and shall be sold by my
executor as hereinafter provided in Item twenty-third of this
will, and the proceeds of said sale added to said fund for
the support of said 'Mary Dykeman Hospital'.
Item 23. All the rest and residue of my property real,
personal and mixed not herein otherwise disposed of I hereby
give, devise and bequeath unto my executor hereinafter named,
in trust for the following uses and purposes, to-wit: I
hereby set apart and direct not to be sold, outlot number
seven (7) in Noah S. LaRose's Third Addition to the City
of Logansport, Cass county, Indiana, situated on what is
known as Hamilton Heights, on which outlot I direct my
executor to erect, furnish and equip, in memory of my
deceased wife, to be known as the 'Mary Dykeman
Hospital', a non-partisan, non-sectarian hospital for the
treatment and cure of the sick and injured but not to include
any cases of contagious eruptive diseases, such as smallpox,
scarlatina, measles, nor hopeless tubercular or syphilitic
cases, nor incurable cases of any character nor any cases of
insanity; said hospital to cost the sum of about fifty
thousand dollars, more or less, but not to exceed one hundred
thousand dollars, and shall cause to be cut in stone over the
main entrance of the Hospital Building, the words 'Mary
Dykeman Hospital'. When such hospital building is
completed and furnished, I direct my executor by proper
instrument in writing to convey said outlot and hospital to
the City of Logansport, Indiana, to have and to hold the same
in trust, forever, as and for a non-partisan, non-sectarian
hospital for the treatment and cure of the sick and injured
but not to include any cases of contagious, eruptive
diseases, such as smallpox, scarlatina or measles, nor
hopeless tubercular or syphilitic cases nor incurable cases
of any character, nor any cases of insanity, and for no other
purposes whatever. Provided, however, that
before such conveyance is made to the City of Logansport the
Common Council of said city shall enter upon record of their
council proceedings a formal acceptance of said bequest and
devise with a stipulation and agreement on the part of said
city which shall be irrevocable. That said hospital shall
forever be named and designated the 'Mary Dykeman
Hospital', that said hospital shall forever remain a
non-partisan, non-sectarian hospital for the treatment and
cure of the sick and injured, but not to include any cases of
contagious, eruptive diseases, such as smallpox, scarlatina
or measles, nor hopeless tubercular or syphilitic cases, nor
incurable cases of any character nor cases of insanity; and
that said hospital shall be managed and controlled by a Board
of Hospital managers, three in number, two of whom shall be
respectable physicians of Cass county, Indiana, and the other
a woman of judgment and discretion, to be selected and
appointed by the common council of the said city for a
regular term of office, when their successors shall be in
like manner appointed; and said conveyance by my said
executor shall be conditional upon the observance and
performance of the terms of said agreement by the City of
Logansport. * * * (here follow certain directions to the
executor for the settling of the estate generally).
Item 24. When my said executor has finally settled my said
estate and has finally carried out the provisions of this
will, any residue of property or money remaining in his
hands, I direct that he turn over and pay to the City of
Logansport, Indiana, at an honest appraisement, to be held in
trust by said city forever, as a fund for the support and
maintenance of said 'Mary Dykeman Hospital', on which
said city shall pay to the Board of Managers of said hospital
an
annual interest of six per cent. to be used for the support
and maintenance of said 'Mary Dykeman
Hospital.'"
Reading
together the several items of the will which are here
questioned it becomes necessary first to determine the
validity of items 23 and 24, since the residuary provisions
of items 21 and 22 render their validity immaterial for the
purposes of this action if the hospital devise and bequest
can be sustained. The first two propositions advanced by
appellants in attacking the validity of these provisions may
be considered together and are, in effect,
thus stated: the law of Indiana prohibits testamentary
disposition of property except to a "person, or
corporation capable of holding the same," and
the contested items here involved must therefore fail for the
reason that there is no trustee named in the will capable
of taking and holding the several properties in
trust under the conditions prescribed. In other words,
it is appellants' contention that the city of Logansport
and the Board of Commissioners of Cass County are not legally
authorized and empowered to accept the respective devises and
bequests on the terms and conditions required of them, and
that it must therefore follow that the testator had no
testamentary power, under our statute, to make such devises
and bequests--the power to make depending on the power to
take.
Appellants'
position as thus stated presupposes that the upholding of the
several items in suit depends wholly on the capacity of the
city of Logansport to act as trustee of the hospital trust
under the terms of the will, but that question is the first
to be determined here and may be thus stated: Is the
trusteeship of the city of Logansport of the essence of the
gift expressed in items 23 and 24, and is it a condition
precedent on which the gift to charity is to depend? As
preliminary to a determination of this question it may be
well to observe: (1) That a trust for hospital purposes is a
good charitable trust. 2 Perry Trusts (6th ed.) §§
697, 699; Woodruff v. Marsh (1893), 63
Conn. 125, 26 A. 846, 38 Am. St. 346; McDonald v
Massachusetts General Hospital (1876), 120 Mass.
432, 21 Am. Rep. 529; Buchanan v. Kennard
(1911), 234 Mo. 117, 136 S.W. 415, 37 L. R. A. (N. S.) 993,
Ann. Cas....
