Easum v. Bohon

• Decision Date: 07 May 1918
• Citation: 180 Ky. 451,202 S.W. 901
• Parties: EASUM ET AL. v. BOHON ET AL.
• Court: Kentucky Court of Appeals

202 S.W. 901

180 Ky. 451

EASUM ET AL. v. BOHON ET AL.

Court of Appeals of Kentucky.

May 7, 1918

Appeal from Circuit Court, Mercer County.

Action by Ora L. Adams, County Superintendent, against Irene Bohon executrix, and others, in which Mary L. Easum and others intervened. A demurrer to interveners' petition was sustained and petition dismissed, and they appeal. Affirmed.

M. H Thatcher and Charles Carroll, both of Louisville, for appellants.

Helm Bruce, of Louisville, C. E. Rankin and E. H. Gaither, both of Harrodsburg, and Bruce & Bullitt, of Louisville, for appellees.

THOMAS J.

This appeal presents the question as to whether the heirs and next of kin of deceased members of the society called Shakers located near Pleasant Hill, in Mercer county, Ky. are entitled, through the medium of a resulting trust, to their ancestors' proportion of the property of the society when it ceases to be such upon dissolution, which it is charged occurred in 1910. A sufficient history of the society, its character, objects, and purposes, including the motives prompting its members to form and enter into it, will be found in the opinion in the case of Adams, County Superintendent, et al. v. Bohon, Ex'x, et al., 176 Ky 66, 195 S.W. 156. That case was the beginning of this litigation, and had under consideration and disposed of the question involving the right of the board of education of Mercer county to have the property escheated for the benefit of the common schools of the county under the provisions of section 323 of the Kentucky Statutes, which question was determined adversely to the contentions of the board of education, since it was held that the section of the statute referred to did not by its express terms apply to the property of the society called Shakers.

While that suit was pending in the court below, appellants here filed their intervening petition and amended petition in which they averred that they were the direct descendants of one John Shain, who was one of the founders of the society in Mercer county, and one of the signers of the "Shakers' covenant," which was signed and acknowledged by all of the members of the society in 1814 and immediately put to record in the county court clerk's office; that at the time of becoming a member of the society their ancestor brought into and donated to the society a considerable amount of property, the extent and nature of which they do not know, and throughout his life, which continued until 1870, he performed much and valuable services to the society, for which he received no compensation, and that many other members did the same, but perhaps in different proportions, and that all of the property so brought and donated under the terms of the covenant was appropriated, used, and invested by the society, finally finding its way into a valuable landed estate located in the county, containing a large number of acres which formed the principal part of the society's property at the time of its alleged dissolution; that "none of the property belonging to said society was owned by individual members thereof, and no individual member of said society had a private or individual interest in said property, but all of the property of said society belonged to the society for the common use and benefit of said society, and for charitable purposes, and was donated for said purposes by the members of said society."

In the prayer the court was asked to adjudge the society to have been a purely charitable institution; that its purposes and objects had failed and it had become dissolved because of the few remaining members having attempted to convey the property to strangers and to divert it from the purposes for which the society was organized; that they be adjudged the right to recover upon an accounting their ancestors' pro rata part of the present value of the property, and that they be permitted to sue for themselves and for the use and benefit of others similarly situated, and that the case be referred to the master commissioner for the purpose of ascertaining who had been members of the society from the beginning, how much property each member had brought in at the time he became such, the amount and value of the services which each member rendered to the society as long as he remained a member, or until his death, if he remained faithful until the last, the heirs or next of kin, if any now living, of each member, and to ascertain and report all other facts necessary to enable the court to make a just and equitable distribution of the property among the descendants of all deceased members and those living at the time of the alleged dissolution. A demurrer was filed to appellants' pleading, which was sustained by the court and their suit dismissed, and to reverse that judgment they prosecute this appeal. The pleadings contain a copy of the covenant entered into in 1814 alluded to above, and also an instrument enlarging or extending that covenant, called a "Covenant or Constitution," which was adopted by the society in 1844, and which does not materially change or alter the nature and purposes of the society or the tenets or practices of its members, but enlarged upon them, and was prompted because the members of the society, as therein stated, felt "the importance, not only of renewing and confirming our spiritual covenant with God and each other, but also of renewing and improving our social compact and amending the written form thereof."

The right of a member of the Shaker society upon seceding therefrom to recover the amount of the property which he brought into the society, or for the services which he rendered while a member, was before this court in the early case of Gass & Banta v. Wilhite and Others, 2 Dana, 170, 26 Am.Dec. 446, in which case a majority of this court as then constituted determined that the society was a charitable institution, or at any rate that it had charitable features, and that a seceding member could not upon withdrawal demand or recover from the society the property which he had put into it. It was so held because the terms of the original covenant under which the property was brought in by the member when he became such were broad enough "to convey the idea of an absolute divestiture of all individual interest in the property (in the seceding member) otherwise than as members of the society," it being further held that such construction of the language just quoted was fortified by another stipulation in the covenant that none of the members "shall ever make any account of labor or property or services, devoted by us, as aforesaid, or bring any charge or debt or damage, or hold any demand whatever against the society, on account of services or property rendered or consecrated to the aforesaid sacred and charitable uses."

It would render this opinion too long to incorporate into it all of the stipulations in the two articles of association or covenants of the Shaker Society referred to bearing upon the question involved, and we will content ourselves with a reference to the two cases, supra, for a more complete detailed history of the society, taking from the two covenants only such parts as may serve to illustrate the points to be discussed. It will at once be seen that appellants claim the right attempted to be asserted herein under the doctrine of resulting trusts. They contend that the property which each member brought into the society, as well as the value of the services which each member rendered to it while such, constitutes a trust fund the legal title to which was held by the society through its trustees solely for charitable purposes, which purposes have now failed and have ceased to be carried out, and that the unused property of the society, which is that now in contest, reverts to the donors, or, if they be dead. to their heirs or next of kin.

The doctrine of resulting trusts is a familiar one in equity jurisprudence, and it arises in several different ways, one of which is where the donor conveys, either by will or deed property for a certain purpose, which purpose fails or it becomes accomplished with a part of the property unused, or the one to whom it is so conveyed abandons the purpose and declines to further carry it out, or where the beneficiaries are so indefinite that the intention cannot be carried out, or the purpose is illegal. Story's Equity Jurisprudence (13th Ed.) vol. 2, § 1196a; Perry on Trusts (6th Ed.) vol. 1, § 125; Bispham's Principles of Equity (8th Ed.) §§ 87, 88; 39 Cyc. 104. When the facts attending the grant are such as to authorize it, a court of equity, when the contingency arises, will create such a trust for the benefit of the donor, if living, or his heirs or next of kin, if he be dead, and adjudge to them the unused portion of the property so donated. This is upon the idea that the donee of the property did not take a beneficial interest, but took it as a trustee for the purpose of accomplishing the intentions of the donor in making the conveyance, and that there was an implied intention or understanding on the part of the donor that, if the property for any reason should cease to be used for the purposes he intended when he appropriated it, it should revert to him, if living, or, if dead, to his heirs or next of kin through the operation of the doctrine of resulting trusts. But the standard works upon equity jurisprudence, supra, and others, as well as all of the adjudicated cases upon the subject, say that the presumed intention of a reverter upon which the doctrine is founded may be rebutted so to defeat the application of the doctrine. This, according to many authorities, may be done by parol evidence (Bispham's Equity, § 83), but all of them agree that it may be done by the written terms under...