Eckles v. Lounsberry

• Decision Date: 14 November 1961
• Docket Number: No. 50402,50402
• Citation: 111 N.W.2d 638,253 Iowa 172
• Parties: Dora ECKLES and Myrtle Ross, Appellants, v. Frank H. LOUNSBERRY, as Executor of the Estate of William E. Hawks, Deceased, and Norman A. Erbe, as Attorney General of the State of Iowa, Appellees, Myrtle Eva Hawks Davidson et al., Intervenors-Appellants.
• Court: Iowa Supreme Court

Page 638

111 N.W.2d 638

253 Iowa 172

Dora ECKLES and Myrtle Ross, Appellants, v. Frank H. LOUNSBERRY, as Executor of the Estate of William E. Hawks, Deceased, and Norman A. Erbe, as Attorney General of the State of Iowa, Appellees Myrtle Eva Hawks Davidson et al., Intervenors-Appellants.

No. 50402.

Supreme Court of Iowa.

Nov. 14, 1961.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellants.

Frank H. Lounsberry, Nevada, for himself as executor and appellee.

Evan Hultman, Atty. Gen., Bruce M. Snell., Jr., and Frank Craig, Asst. Attys. Gen., for Norman A. Erbe, appellee.

Hirschburg, Reynolds, Gilchrist & Nutty, Ames, for intervenors-appellants.

GARFIELD, Chief Justice.

Plaintiffs and intervenors, collateral heirs of William E. Hawks, deceased, claim the principal bequest in his probated will is invalid. Following trial the district court held the will created a valid charitable trust. We affirm the decision.

After the usual provision for payment of debts and expenses the will, in paragraph 2, directs that if 'any person should appear with legal proof that he or she is a brother or sister of William E. Hawks, said person be paid five dollars * * *.'

Paragraph 3 of the will, the part in controversy, provides: 'I hereby give, devise and bequeath all of the remainder of my estate * * * to the Iowa State Public School Fund of the State of Iowa to be used by those in charge of said fund to promote instruction in vocal music and proper development of the lungs of children attending kindergarten, first and second grades in the schools of the State of Iowa.

'I believe such training will result in said children becoming better citizens and more healthy persons.'

The will contains no residuary clause or provision for reversion or gift over in the event of failure of the above bequest.

Testator was unmarried and left no descendants or parents. Plaintiffs are two cousins. Ninetten other collateral heirs intervened by joining with plaintiffs as permitted by rule 75, Rules of Civil Procedure, 58 I.C.A. Defendants are the executor and the attorney general of the state. Value of the estate is estimated at $228,000.

Plaintiffs' petition sets out paragraph 3 of the will and alleges merely it 'is impossible of execution and invalid.' The petition of intervention states 'it is the contention of intervenors there is no devisee capable of accepting and administering the bequest * * * and it is invalid due to uncertainty and impossibility of execution.' Plaintiffs admitted this allegation and most of intervenors' other allegations.

Appellants' joint brief states three 'propositions relied on' as required by rule 344(a)(3). They are: (1) 'The object and purpose of paragraph 3 is against public policy and illegal. (2) There is no devisee capable of accepting and administering the purported devise and it must therefore fail. (3) The purported devise is not charitable.'

Appellants place their main reliance in this court on the first of these propositions. The record does not indicate this contention was made in the trial court. Certainly it was not clearly made. Appellants' reply brief ignores the assertion in appellees' brief that 'The contention was not made in the trial court and is not properly before this court.' We will, however, as a matter of grace give it consideration, although not at the outset.

I. We think the bequest in paragraph 3 is charitable. The estate is to be used 'to promote instruction in vocal music and proper development of the lungs of children attending kindergarten' and the first two grades in school. The promotion of education is certainly a charitable purpose. Amundson v. Kletzing-McLaughlin Memorial Foundation College, 247 Iowa 91, 94, 73 S.W.2d 114, 116, and citations; Lupton v. Leander Clark College, 194 Iowa 1008, 1013, 187 N.W. 496; Wilson v. First National Bank, 164 Iowa 402, 412, 145 N.W. 948, Ann.Cas.1916D, 481; 9 Drake Law Review 90, 91; Restatement Trusts 2d, section 370; Annotation 48 A.L.R. 1126.

Appellants concede trusts for the promotion of education are, as a general rule, charitable and are thus entitled to the indulgence equity has seen fit to bestow on charities. They say, however, this is not a charitable trust because the money is to be used to promote instruction in vocal music and proper development of children's lungs rather than in aid of what they call the financial branch of education.

The promotion of health is also a recognized charitable purpose. In re Estate of Anderson, 244 Iowa 325, 331, 56 N.W.2d 913, 917; 9 Drake Law Review, 90, 92; Restatement Trusts 2d, section 372; 10 Am.Jur., Charities, section 71.

A trust to assist in the maintenance of public schools is also charitable, not merely on the ground it is for the advancement of education or promotion of health, but also on the ground it is to supply the community with facilities ordinarily supplied at public expense. Restatement Trusts 2d, section 373, Comment b; Annotation 48 A.L.R. 1126.

Charitable gifts are strongly favored by the courts and will be upheld wherever possible. In re Will of Hagan, 234 Iowa 1001, 1007, 14 N.W.2d 638, 642, 152 A.L.R. 1296, 1301, and citations; In re Estate of Small, 244 Iowa 1209, 1225-1229, 58 N.W.2d 477, 485-487; In re Estate of Pierce, 245 Iowa 22, 35, 60 N.W.2d 894, 902.

In considering a charitable bequest we have approved this statement of Lord Hardwicke, 'There is no authority to construe it to be void, if by law it can possibly be made good.' In re Estate of Nugen, 223 Iowa 428, 440, 272 N.W. 638, 645; Klumpert v. Vrieland, 142 Iowa 434, 437, 121 N.W. 34, 35.

Even where no charitable bequest is involved, if any testamentary provision is reasonably open to two constructions, one which would render it void or inoperative and another which would render it valid, the latter is always to be taken and the former rejected. This rule is particularly applicable where a charitable bequest is drawn in question. Jensen v. Nelson, 236 Iowa 569, 571, 19 N.W.2d 596, 598, and citations; In re Estate of Small, supra, 244 Iowa 1209, 1226-1227, 58 N.W.2d 477, 486.

We should consider appellants' propositions 1 and 2 with the above principles in mind.

II. We hold the object and purpose of paragraph 3 of this will are not against public policy and illegal.

It is argued in effect this is a sinister attempt by testator to control the curriculum of the public schools and cannot be permitted, 'much less from the grave.' We are told that if this will is upheld the legislature could some day find its hands tied and nothing to do but gaze at each other in mute astonishment as the courses of study in the public schools are carried on according to the whims of a testator.

We think counsel are unduly apprehensive. The argument is deprived of substance by the fact the legislature for the past 61 years has provided 'The elements of vocal music, including, when practical, the singing of simple music by note, shall be taught in all of the public schools * * *.' (Chapter 109, Laws 28th General Assembly, 1900, now section 280.12, Code, 1958, I.C.A.) Also, since 1923, 'The teaching of physical education * * *, including effective health supervision and health instruction, of both sexes, shall be required in every public elementary and secondary school of the state. * * * Said subject shall be taught in the manner prescribed by the state superintendent of public instruction.' (Chapter 68, Laws 40th General Assembly, now Code section 280.13.)

There is no necessary conflict between these statutes, which are declaratory of the public policy of the state, and paragraph 3 of the will. But counsel fear these laws may be changed and the legislature may outlaw what are now these required subjects. A sufficient answer is that it will be time to deal with such an improbable development when it occurs, rather than now. No charitable trust could be upheld if the possibility of future legislation were sufficient to defeat it.

If this trust were for the purpose of teaching some irrational belief, as that the earth is flat, or of illegally disseminating some doctrine like forcible overthrow of the government, doubtless it would not be a valid charitable trust. Restatement Trusts 2d, section 370, Comments h and i. But the trust is not of that kind. We think the will is just as valid as if the estate were to be used to promote instruction in what are frequently referred to as the '3 rs.'

Speaking of public policy, we have said, 'It is contrary to the public policy of this state to indulge in strained construction of * * * this will in order to seek out and discover a basis for avoiding the primary purpose of the testator to bestow upon the town a charitable trust.' In re Estate of Nugen, supra, 223 Iowa 428, 438, 272 N.W. 638, 644; Blackford v. Anderson, 226 Iowa 1138, 1175, 286 N.W. 735; In re Estate of Small, supra, 244 Iowa 1209, 1227, 58 N.W.2d 477, 486.

The Nugen will was assailed on grounds somewhat like those now urged here. It contained a bequest for the purchase of a building for a public library on condition that the town would agree to furnish light, heat, clerical help and pay all operating expenses. Income from the trust was to be used for buying books and other reading material for the library. The library was to be the 'H. J. Nugen Public Library.' The will named three members of the library board, including the chairman, and they were to select the other members. The board was to oversee the purchase of books and management of the library.

Collateral heirs contended the Nugen will was invalid because a library can be maintained only by public taxation and the legislature might repeal the law authorizing a tax for support of a library. Also because the statute provides the mayor shall appoint the library board and it would be illegal to turn over to the board named by the testator funds raised by taxation. We upheld the will. This from the opinion is applicable...