Frierson v. Gen. Assembly of the Presbyterian Church in U. S.

• Court: Tennessee Supreme Court
• Writing for the Court: FREEMAN
• Citation: Frierson v. Gen. Assembly of the Presbyterian Church in U. S., 54 Tenn. 683 (Tenn. 1872)
• Decision Date: 09 March 1872
• Parties: J. W. S. FRIERSON AND J. B. FRIERSON, Ex'rs, v. THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES.

54 Tenn. 683

J. W. S. FRIERSON AND J. B. FRIERSON, Ex'rs,

v.THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES.

Supreme Court of Tennessee.

Mar. 9, 1872.

FROM MAURY.

From the Chancery Court, November Term, 1870. W. S. FLEMING, Ch.

G. P. FRIERSON for complainants.

The testator's intention to prevail unless contrary to law or public policy. 1 Red. on Wills, 432; 10 Yerg., 20;4 Hum., 210.

A will rarely to be declared void for uncertainty. 1 Red. on Wills, 695.

The donee a body corporate, created by Act of March 9, 1862. The General Assembly of the State at the time, at all events a de facto legislature of the highest grade. 1 Heis., 128; Ib., 45. The acts of de facto officers valid as to third persons. 1 Overton (Cooper's Ed.), 19; 1 Heis., 64;9 Hum., 163;3 Head, 690. The session at Memphis a mere irregularity, not invalidating the action had there. 2 Head, 582. Their not having sworn to support the Constitution of the United States, not fatal. 2 Col., 605.

The charter, valid when passed, a contract, not subject to subsequent State legislative or constitutional impairment. 9 Yerg., 400;3 Col., 488;Dartmouth College Case, 4 Wheaton, 518.

The subsequent change of mere title, by substituting “United” for ““Confederate,” did not affect the identity of the corporation. 3 Col., 488.

At any rate the bequest, vested in trustees, and definite in its objects, and lawful, must be upheld. 1 Swan, 348; 2 Sneed, 306; 3 Sneed, 211; 2 Dana, 170; 4 Ib., 355; 2 How., 127; 2 Story's Eq. Jur., 1187-91.

Characteristic of a charity, that the individual beneficiaries unknown. 2 Red. on Wills, c. xv., 66; 1 Swan, 348. Charities favored by the law. Ib.

The bequest not to “superstitious uses.” 1 Swan, 366; 2 Red. on Wills, c. xv., 4; 2 Dana, 170.

A “good and charitable use.”

In this country, where law ignores religious differences, there can probably be no “superstitious use.” This presupposes some legal standard of religious orthodoxy whereby to determine what is “superstitious.”

If the foregoing position is erroneous, then the bequest vested in the executors in their own right absolutely. 2 Red. on Wills, c. xv., 48, and citations.

LOONEY & HICKEY for the General Assembly.

Intention to prevail; how ascertained; liberality as to wills; rarely void for uncertainty. 10 Yerg., 20;2 Swan, 623; 3 Hum., 361; 4 Hum., 210;9 Hum., 195. 1 Red. on Wills--“Construction of Wills.”

Charity supported even where different trust would fail. Upheld if vested in trustees, definite in objects, and lawful, even if no beneficiary capable of suing. 5 Hum., 204;1 Swan, 348. Present bequest clearly within category.

Statute 27 Hen. viii, is resurrected, to brand bequest as “superstitious use.” This a sword brandished against a proscribed church. No religious proscription in our favored land.

As to definite fiduciaries, the General Assembly, etc., a corporation created by Act of March 19, 1862. Act passed at Memphis, but valid. Legislature might temporarily convene there. De facto government at all events. 1 Heis., 44; Ib., 764; Ib., 72.

Charter, if valid when passed, a contract, not subject to subsequent State impairment. 9 Yerg., 490; Dartmouth College case, 4 Wheaton.

If the General Assembly, etc., could not take, executors assuredly could, which satisfies the requirement as to definite trustees.PLAYER MARTIN for the heirs and distributees.

A bequest to religious association unincorporated is void. Green. v. Allen, 5 Hum., 209; 4 Wh., 1; 2 Ired., Eq., 257; 3 Pet., 99; 10 Coke, 26; 8 John., 385; 2 Col., 77.

The General Assembly of the Presbyterian Church, etc., was not incorporated at the testator's death, Schedule 1865, abrogating legislation, inclusive of the Act of March 19, 1862. The Legislature could not act validly at Memphis, the capital of the State being constitutionally fixed at Nashville.

The executors were not meant to be the administrators of the charity, but the General Assembly of the Presbyterian Church, etc. 5 Hum., 209.

The objects of the bounty too vague--Bible and Tract Societies; Domestic and Foreign Missions; Board of Education and Publication; Choctaw, etc., neophytes, etc.

FREEMAN, J., delivered the opinion of the Court.

This bill is filed by the executors of William E. Kennedy for a construction of certain clauses of his will, and for the direction of the Court of Chancery as to the performance of their duties in the execution of the trusts of the will.

It appears from the record that the testator died on the 17th of December, 1863, in the county of Maury, at an advanced age, having before this time emancipated the larger portion of his slaves, sending them to Liberia, through the agency of the American Colonization Society. He left no children. He disposed of a considerable share of his estate to his collateral relatives, by various clauses of his will. First, directing, by item second, “that all his estate, both real and personal, not otherwise disposed of, wherever situated, be sold by his executors, and converted into money,” he proceeds, in the ninth and tenth clauses, as follows:

“All the residuum of my estate, of whatever kind, whether real, personal, or mixed, left after carrying out the foregoing provisions of this will (and if any legacy I have given, or fund appropriated in this will, can not for any cause whatever take effect, or be appropriated as herein directed, the same shall constitute a part of said residuum, and be subject to the dispositions of this clause), I give to my executors to be appropriated by them as follows: one thousand dollars to the proper authorities of the Union Theological Seminary at Prince Edward Court House, Virginia; one thousand dollars to the Rev. W. McLane and the Rev. R. R. Gurley, Secretaries of the American Colonization Society in Washington City, D. C., and their successors, to be by them held and used in promoting the objects, purposes, and enterprises of said society in colonizing negroes in Liberia, Africa; five hundred dollars to the General Assembly of the Presbyterian Church in the Confederate States of America, or of the General Assembly of the Presbyterian Church, South, whatever may be its precise title, for the benefit of such Bible Society as has been, or may be, established by said General Assembly; and five hundred dollars to said General Assembly for the benefit of such tract society as has been, or may be, established by said Assembly; and if no such society should be established by said Church, or be in existence under its control, then said sums severally to be used by said General Assembly of the Presbyterian Church in the Confederate States of America for the promotion and advancement of the bible and tract cause respectively in such manner as to said Assembly may seem best for the advancement of said objects. I then desire two-thirds of the remainder of the residuum to go to said General Assembly of the Presbyterian Church in the Confederate States of America for the benefit of Domestic Missions, and to be used by said Assembly through its proper board or committee already, or to be, appointed, or such agency as it may deem best for the promotion and advancement of the cause of Domestic Missions. One-half of the remaining third of said balance to go to said General Assembly of the Presbyterian Church in the Confederate States of America to be by said Assembly appropriated through its boards, committees, or other agency under its control, to the uses, purposes, and benefits of Foreign Missions; the remaining half of said third to go, in like manner, to the said General Assembly of the Presbyterian Church in the Confederate States of America for the benefit of the Board of Education and Publication in equal proportions; and if said Church should have no such boards or committees for these objects, then through such agencies as such Church may establish and control to carry out and promote such objects. When I use the term General Assembly of the Presbyterian Church in the Confederate States of America, or General Assembly of the Presbyterian Church, South, I mean to be understood as referring to the ‘Old School Presbyterian Church in the South;’ and should any part thereof reunite with the Northern Church, I mean the part which shall remain as a separate body in the South.

I desire said General Assembly, through its proper boards, committees, or agencies in its dispositions of the funds herein set apart to Domestic Missions, to select in one of the four tribes of Indians--viz., the Choctaw, Chickasaw, Cherokee, or Creek--four male and four female youths, and to appropriate of said funds the sum of one thousand dollars for the education of said Indian youths.

Item 10. In the event that any of the legacies or sums directed to be given to any of the benevolent objects specified in the 9th item of this will should fail on account of a want of proper description, or for any other reason, then I give the same to my executors with the hope and belief that, as they know the objects and purposes I have in view in making these bequests, they will carry them out in such manner as will approximate as nearly as possible to my wishes herein expressed. I here declare it to be my wish and desire that I should not be considered as dying intestate as to any part of my estate. What I have already done for, and given to, my relatives, together with the bequests in this will, is as much of my estate as I wish them to have; and should it so happen that any portion of what I have given to charitable and benevolent objects and societies in this will should fail, or not vest as I have herein desired and directed, I do not intend the same, or any part thereof, to go to my kindred, or any of them, but to my executors to be paid over to such charities as may be declared valid and legal in the proportion herein set forth; and if all such charitable bequests should be declared illegal and void so as not to vest, then the whole to my executors in their own...