Gooding v. Watson's Trustee
| Decision Date | 03 June 1930 |
| Citation | 235 Ky. 562 |
| Parties | Gooding et al. v. Watson's Trustee. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Mason Circuit Court.
HUNT & BUSH for appellants.
E.L. WORTHINGTON and BROWNING, REED & ZEIGLER for appellee.
Reversing.
This is an action under the Declaratory Judgment Act (Acts 1922, c. 83) for a construction of the will of Mrs. Elizabeth Parry Watson, who died on December 24, 1928, and for a declaration of the rights of the appellants in the estate held by appellee as executor and trustee, and for a declaration of the obligations and duties of the executor under the terms of her will. The appellant Sudie P. Gooding is a sister of the testatrix, and the appellant Mary E. Peed is a half-sister, and they were her only heirs at law at the time of the death of Mrs. Watson.
Mrs. Watson left an estate consisting wholly of personal property, of the approximate value of $50,000. The appellant Sudie P. Gooding was bequeathed a life estate in the property. All debts have been paid. Upon the death of Sudie P. Gooding, testatrix directed the executor and trustee to make a certain disposition of the corpus of the estate with any accumulated interest unexpended for the comfortable support and maintenance of Sudie P. Gooding. The clause of the will for construction is in the following language:
It is the contention of counsel for appellants that the provision of the will for the disposition of the remainder interest in the estate does not point out with reasonable certainty the purposes of the charity and the beneficiaries thereof as is required by the provisions of section 317, Ky. St. It is contended by them that a will bequeathing or devising property to a charitable use must point out with reasonable certainty (1) the charity, (2) its purposes, and (3) the beneficiaries thereof, and if the will, by its provisions, does not measure up to these requirements it is invalid. It is their contention that the will in question in so far as it attempts to dispose of the remainder interest in the estate to charitable organizations, excluding educational institutions, located in Maysville and Lexington, or in both or either, such organizations that are to receive the benefits to be selected by the executor and trustee in its discretion at the time of the death of the life tenant, is invalid because the will itself does not point out with reasonable certainty any charity, the purposes, or the beneficiaries thereof. They contend that the provision in the will amounts to no more than a power of attorney authorizing the executor and trustee to make a will for the testatrix disposing of the remainder.
Counsel for appellee contend that section 317, Ky. Stats., is merely the modern complement of the Statute 43 Elizabeth, chapter 4, relating to charitable uses, and that it was never intended to vary the effect of the common-law or equitable principles relating to charitable trusts, nor to vary the English statute itself; that it is not a delimiting statute, nor an enabling one, but is only a guide; and that the charitable uses therein enumerated are but examples of such uses long since recognized and approved as a part of the chancery doctrine and jurisprudence in England and in those colonies and states where that branch of the Elizabeth law was taken over and became a part of the substantive law of such colony or state. They contend that charitable trusts and uses were known and well recognized in English law long prior to the enactment of the Statute of Uses and 43d Elizabeth, chapter 4, and that the authorities establish the principle that indefiniteness of beneficiaries in a public charitable trust is not material, and that one test of a valid public charitable trust is the existence of indefinite beneficiaries who shall ultimately take the bounty of the donor. They combat the argument of counsel for appellants on every point and contend that the will points out with reasonable certainty the charity, its purposes and the beneficiaries thereof.
A will speaks as of the date of the death of the testator, or testatrix, and the law in force at that time determines its validity and its proper construction. Slack v. Downing, 233 Ky. 554, 26 S.W. (2d) 497.
In the case of Moore's Heirs v. Moore's Devisees, 4 Dana (34 Ky.) 354, 29 Am. Dec. 417, this court held that the Statute of 43d Elizabeth was in force in this jurisdiction to the extent that it was applicable to conditions existing in this state. The purpose to be met by the enactment of the statute, as pointed out in that opinion, was to apply some of the doctrines of the civil law to certain charitable donations enumerated in the statute so as to render such gifts valid when they would have been void if there had been no charity, or even with the charity according to the common law. The validity of the statute was upheld so far as its objects were concerned, but the court found that the remedies prescribed were inapplicable to the conditions in this country and were never deemed to be in force in Virginia, and therefore not in force in Kentucky. It was held in that opinion that the cy-pres doctrine in force in England was not and should not be adopted in this state with one exception, "and that is, where there is an available charity to an identified or ascertainable object, and a particular mode, inadequate, illegal, or inappropriate, or which happens to fail, has been prescribed."
Again in the same opinion Judge Robertson, writing for the court, said:
"Whenever the only objection to a devise or legacy is, that it is for the benefit of a class of private individuals described collectively by some characteristic trait by which they may be identified, if the donation be a charity within the statute, and is therefore valid, it is, as a matter of course, as good and available as it would have been, at common law, had it been to a competent person, in trust for another similar person, identified in the will by his proper name."
In 1867 this court, through Judge Robertson, handed down an opinion in the case of Cromie's Heirs v. Louisville Orphans' Home Society, 3 Bush (66 Ky.) 365, in which the court considered the Statute of 1852 relating to charitable uses and religious societies. This statute, as was pointed out in the case of Adams v. Bohon, 176 Ky. 66, 195 S.W. 156, was the combining and re-enacting of the statutes on the same subject, one adopted in 1814 and the other adopted in 1824. In the Cromie case the court held that the Statute of Elizabeth concerning charities had been constructively abolished in Kentucky, but that it had been substantially re-enacted. This court in referring to the repeal and re-enactment of the Statute of 43d Elizabeth in the Cromie case said:
"And thus, though the ultra-judicial cy-pres doctrines which royal prerogative attached as excrescences to the statute of Elizabeth, had, by its repeal, been cut off as tumors, the aim of our own statute for upholding charities is to make such as it enumerates available whenever so defined as to be judicially identified and applied."
The cy-pres power constituted a peculiar feature of the English system and was exerted in determining gifts to charity when the donor had failed to define them. That doctrine meant that the courts would devise schemes of approximation as nearly to the donor's true design as possible, and the scheme for carrying out the charity so adopted was substituted for the intention of the donor. It was this method of substitution which this court found was unsuited to our institutions and should not be adopted in the jurisprudence of this state on the subject.
It was in 1893 at the first session of the General Assembly after the adoption of the present Constitution of Kentucky that chapter 200 of the acts of that session was enacted, and section 317 of the Kentucky Statutes was enacted in its present form. In the Cromie case it was held that the aim of our statute, that is, the act of 1852, for upholding charities was to make such as it enumerates available whenever so defined as to be...
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