Ewell v. Sneed

• Decision Date: 15 January 1917
• Citation: Ewell v. Sneed, 191 S.W. 131, 136 Tenn. 602 (Tenn. 1917)
• Parties: EWELL v. SNEED ET AL.
• Court: Tennessee Supreme Court

191 S.W. 131

136 Tenn. 602

EWELL v. SNEED ET AL.

Supreme Court of Tennessee.

January 15, 1917

Certiorari to Court of Civil Appeals.

Suit by P. D. Ewell, as administrator of the estate of Mary H. Ewell deceased, against Mary A. Sneed and others, for the construction of a will and codicil. A decree of the chancellor sustaining the codicil and appointing trustees was reversed by the Court of Civil Appeals, which held the heirs of a residuary legatee under the will entitled to the estate and the trustees and heirs of testatrix bring certiorari. Opinion of the Court of Civil Appeals affirmed.

Roane Waring, of Memphis, for plaintiff.

R. M Barton and W. H. Borsje, both of Memphis (Luke E. Wright, of Memphis, of counsel), for Mary A. Sneed and John S. Webb Adm'r.

T. K. Riddick and Tim E. Cooper, both of Memphis, and H. C. Moorman, of Somerville, for defendant Young Ministers, etc.

M. C. Ketchum, of Memphis, for general heirs at law and distributees of Mary H. Ewell, deceased.

GREEN J.

This case involves primarily the validity of a provision of the will of Mary H. Ewell, deceased, for the education of young ministers of the Presbyterian Church.

Mary H. Ewell was a resident of Fayette county, Tenn., and died testate March 11, 1912. Her will consisted of an original testament and codicil thereto. The provisions of the body of the will are not material in this connection. With the exception of certain small legacies, Miss Ewell devised and bequeathed her property to her uncle, Robert H. Shepherd. He was also named as residuary legatee. This will was dated June 22, 1885. On June 3, 1907, she added a codicil in the following language:

"In the name of God Almighty, amen. I, Mary H. Ewell, being of sound mind, do this day, June 3, 1907, will and bequeath all of my property both real and personal to my beloved uncle, Robert H. Shepherd during his lifetime. At his death all real estate to be sold and all money collected and held by two trustees to be appointed by the Synod of Memphis and the said money to be used in educating young ministers of the Presbyterian Church. I desire all of my household goods and jewelry to be given to my namesake Mary H. Ewell."

After the death of the testatrix, the will and codicil were duly probated. Mr. Shepherd qualified as executor and later died.

Miss Ewell was a member of the Presbyterian Church at La Grange, Tenn. La Grange Church was within the bounds of what was known as the "Synod of Memphis" formerly. Prior to the death of Miss Ewell the Synod of Memphis was abolished and the Presbyterian Church in the United States placed the churches belonging to that synod in the Synod of Tennessee. The synod is a voluntary, unincorporated religious association--a- ""a sort of intermediate church court, without legal entity.

The Synod of Tennessee elected two trustees, C. W. Heiskell and G. W. McRae, to administer the trust attempted to be created by Miss Ewell's will.

The personal representative of Miss Ewell filed this bill against the aforesaid trustees and against the heirs and distributees of Miss Ewell, and the heirs and distributees of R. H. Shepherd, seeking a construction of the will and directions from the court as to the proper disposition to be made of the estate in his hands.

The trustees appointed by the Synod of Tennessee answered and filed a cross-bill to which they made the Attorney General of Tennessee a party, as well as the heirs and representatives of the testatrix, and of R. H. Shepherd, and it was insisted by the trustees that the provision of Miss Ewell's will for the education of young ministers of the Presbyterian Church was valid and should be upheld. The Attorney General concurred in this contention in the answer to the cross-bill filed by him. All the heirs and representatives assailed the validity of said provision of the codicil, and by appropriate pleadings, they presented the question as to which set of them should take the estate in the event the court held the attempted charitable trust invalid. This controversy between the heirs and representatives will be noticed later.

The chancellor decreed in favor of the codicil and himself appointed or ratified the appointment of the two trustees who had been nominated by the Synod of Memphis, and directed that the estate be turned over to said trustees for the purposes indicated by the will.

The Court of Civil Appeals reversed this decree of the chancellor, and concluded that the testatrix had failed in her effort to establish a valid charitable trust, and that court held the heirs and representatives of Mr. Shepherd to be entitled to the estate

The case is before us on a petition for certiorari filed by the trustees, and upon petition for certiorari of the heirs and representatives of the testatrix.

As indicated heretofore, the first question in the case is upon the validity of the provision for the education of young ministers of the Presbyterian Church.

In the consideration of this question the court feels obliged for the most part to confine the discussion of authorities to the decisions of this state. We have so many cases involving charitable trusts and the leading principles of law on this subject have been so well settled in Tennessee, that we cannot be governed by decisions from other courts. We will, therefore, only look to other cases in so far as it becomes necessary to vindicate the soundness of certain former rulings of this tribunal that are assailed herein.

The first case arising in Tennessee upon the question of charities was that of Green v. Allen, 24 Tenn. (5 Humph.) 170. The opinion in this case was delivered by Judge Turley. It has long been regarded by the profession as a classic in the law, and the fundamental rules there laid down have never been modified or consciously departed from by this court.

It is shown in Green v. Allen that the Court of Chancery in Tennessee possesses only that jurisdiction formerly exercised by the chancellors of England known as the "extraordinary jurisdiction," as distinguished from prerogative and other jurisdiction, and Judge Turley then says:

"I therefore think that we may safely assume that the power of the chancellor to decree an execution of a trust for charitable purposes so far as it arises out of his extraordinary jurisdiction, rests upon the same principles as trusts of every other kind and description, and that there must be either a cestui que trust, having sufficient legal capacity to take as devisee, or donee, or that there must be a feoffee or trustee, charged with a specific and legal trust, before the jurisdiction can be exercised."

Again the learned judge says:

"If the charity be created either by devise or deed, it must be in favor of a person having sufficient capacity to take as devisee or donee, or if it be not to such person, it must be definite in its object, and lawful in its creation, and to be executed and regulated by trustees, before the Court of Chancery can, by virtue of its extraordinary jurisdiction, interfere in its execution." Green v. Allen, supra.

These conclusions, thus expressed, have been approved or applied by this court in the following reported cases: Oakley v. Long, 29 Tenn. (10 Humph.) 254; Dickson v. Montgomery, 31 Tenn. (1 Swan) 348; Franklin v. Armfield, 34 Tenn. (2 Sneed) 305; Gass v. Ross, 35 Tenn. (3 Sneed) 211; Frierson v. General Assembly, 54 Tenn. (7 Heisk.) 683; White v. Hale, 42 Tenn. (2 Cold.) 77; Cobb v. Denton, 65 Tenn. (6 Baxt.) 235; Daniel v. Fain, 73 Tenn. (5 Lea) 319; Reeves v. Reeves, 73 Tenn. (5 Lea) 644; State v. Smith, 84 Tenn. (16 Lea) 662; Heiskell v. Chickasaw Lodge, 87 Tenn. 668, 11 S.W. 825, 4 L. R. A. 699; Rhodes v. Rhodes, 88 Tenn. 637, 13 S.W. 590; Johnson v. Johnson, 92 Tenn. 559, 23 S.W. 114, 22 L. R. A. 179, 36 Am. St. Rep. 104; Carson v. Carson, 115 Tenn. 37, 88 S.W. 175; Jones v. Green (Ch. App.) 36 S.W. 729.

Besides the propositions above quoted from Green v. Allen, certain other conclusions reached in that case have been approved and applied from time to time in the subsequent cases cited above.

One of these is that the functions of the king as parens patriæ, with respect to the administration of charities, have not been devolved upon any officer or department of government in Tennessee. Another rule laid down in Green v. Allen, and followed in White v. Hale, Daniel v. Fain, and Reeves v. Reeves, is that a charity must stand or fall as it was at the death of the testator and cannot be validated by any subsequent action.

Likewise, wherever reference is made to these matters in our cases the doctrine of cy pres has been repudiated, and the Statute of 43 Elizabeth, c. 4, declared not to be in force in Tennessee.

In a number of our cases charitable bequests have been upheld because they were definite in their objects and were supported by trustees. Such cases are Dickson v. Montgomery, Franklin v. Armfield, Cobb v. Denton, Frierson v. General Assembly, Heiskell v. Chickasaw Lodge, and State v. Smith, and perhaps others unreported.

In some of our cases charitable bequests have been held invalid because their purposes were not sufficiently definite to be ascertained and effectuated by a court of chancery. Such particularly are the cases of Rhodes v. Rhodes, Johnson v. Johnson, and Jones v. Green.

In Green v. Allen, the court held the bequest invalid both because it was not sustained by trustees, and because indefinite.

In White v. Hale, Daniel v. Fain, and Reeves v. Reeves, charitable bequests were held invalid for the reason that they were not supported by trustees, and apparently for that reason alone.

In the case before us, no trustees were appointed by the will, but it was the expressed intention of the testatrix that trustees should be...