Green v. Allen

• Decision Date: 31 December 1844
• Citation: 24 Tenn. 170
• Parties: GREEN et al. v. ALLEN et al.
• Court: Tennessee Supreme Court

24 Tenn. 170

GREEN et al.

v.ALLEN et al.

Supreme Court of Tennessee.

December, 1844.

William Wright made a will, in which were the following clauses

“I desire that my will, with the appurtenances thereto, and all and any species of property found in my possession at my death, not otherwise disposed of, shall be sold.

I desire that one-fourth part of the money arising from the sale of the property disposed of, as above mentioned, shall be given to the Tennessee Annual Conference of the Methodist Episcopal Church, for the benefit of institutions of learning under the superintendence and control of said conference, and to the Missionary Society of the Methodist Episcopal Church, and to be otherwise disposed of as the Tennessee Annual Conference may decide best in their discretion.”

Wright died in Montgomery county, Tennessee, and the will was admitted to probate in August, 1??0.

The Legislature, in 1841, by act, appointed A. L. P. Green, John F. Hughes, George W. Dye, John B. McFerrin, and John G. Henning “trustees to receive the donation” of said Wright.

N. A. Allen, the executor, refused to pay over the proceeds of the sale, as directed by the will. This bill was thereupon filed by the trustees on behalf of, and by order of, the Tennessee Conference, and by Robert K. Roberts, president of the Missionary Society of the Methodist Episcopal Church, on behalf of said society, in the chancery court, at Clarksville, against Allen, the executor, and against the widow and heirs of said Wright. The bill prayed that the validity of said bequest might be declared and established, and that said executor might be decreed to account for the one-fourth part of the proceeds of the sale of the property as directed by the will.

The bill contained no allegation that the Tennessee Conference of the Methodist Episcopal Church, or the Missionary Society of said Church, was incorporated.

The defendants demurred to the bill.

The case was argued before Chancellor McCampbell, at the November term of the chancery court at Clarksville, in the year 1843. He sustained the demurrer, and dismissed the bill.

The complainants appealed.

Meigs, for complainants.

1. The 4th clause of this will makes a conversion “out and out” of the real estate embraced in it (1 Williams on Ex. 417, 418), and charges the executor with a trust to sell and pay.

But it is objected that he can not pay the Conference or to be Missionary Society, because they are merely voluntary associations, and because the objects of the trust are too indefinite, and because the discretion of these associations, as to the management of the fund, is arbitrary and unconstitutional. 10 Ves., 539.

To this it is answered:

1. That this charity would be sustained under the statute of 43 Elizabeth, and the construction placed on it in England and America.

And, to prove that this statute is in force, we rely on the North Carolina act of 1715, ch. 31, sec. 7 (1 Scott, 22) from which it appears that all the English statutes made “for the indulgence to Protestant dissenters” are re-enacted. Those statutes were the “Toleration Act,” passed in 1689, and the ““““occasional Conformity Act” passed in 1712. See Neal's History of the Puritans, 576, to 585. The reason of enacting these laws will be found in 3 Neal, from 185 to 192, and in 1 Hallam's Constitutional History. From these books its will be seen under what grievous burdens the non-Conformists labored in England; that the earliest settlements in North Carolina were chiefly by dissenters; and that to their influence that provision in the law of 1715 is owing is plainly shown by 2 Bancroft, 131 to 137.

Charities for dissenters were not administered in the English chancery court till the Toleration Act 1689. But as soon as the act was passed, the act of 43 Elizabeth 1601 came to be regarded as applicable, as well to charities for them as for the establishment. Shelf. on Mortmain, 87 to 90, top pages.

Now, as the effect of the Toleration Act was to open the doors of the chancery court, previously closed against the dissenters, and to cause that court to enforce charities for them, just as for the establishment, it is contended that the reenaction of that act in North Carolina, as well as all other statutes for indulgence to dissenters, carried with it all the consequences which had followed its enaction in England. And it is insisted that this charity is one which at this day would not admit of argument in the English chancery court, administering charities under the statute of Elizabeth, and this without any aid from the cy pres doctrine, which we admit is an abusive exercise of jurisdiction.

2. To the objections we answer, in the second place, that the court of chancery, by its common-law powers, exercised immemorially, can execute this trust, as will be shown by these authorities, which apply as well to this point as to the first. 7 Ves. 30; 6 Paige, 639;24 Pick. 146; 4 Metc. 378; 3 Edw. 79; 9 Cow. 484; 1 Hawkes, 132, 133; 1 Hoffm. 264; 3 Pet. 104, opinion 112; 3 Paige, 297;17 Serg. & R. 88;16 Pick. 107;4 Dana, 354;20 Wend. 115 to 119.

From all these authorities we insist that it is now an established principle of American law that the court of chancery will sustain and protect such a gift as this. 6 Paige, 649, 650.

3. As to the manner in which the court will divide this fund between the Conference and Missionary Society. See 10 Ves. 538; 3 Merival, 18; Doyley v. Doyley, 7 Ves. 59, note 10; Id. 28, 29; 6 Paige, 652, 653.

Boyd, for defendants.

It is a well-settled rule of the common law that a community not incorporated can not take by purchase or succession. Baptist Association v. Hart's Exrs., 4 Wheat. 1; Holland v. Peck, 2 Ired. 257; 3 Pet. 99; 10 Coke, 26; Com. Dig. title Capacity, B. 1 8 John. 385, 422; 9 Id. 783;2 Wend. 109;3 Pet. 99.

The bequest in question, therefore, if given to the two societies or to the members thereof, for their own use, and not coupled with a trust, is clearly void. It is not pretended that there is any trust declared in the bequest to the Missionary Society, and that bequest must fail for want of a legatee to take it. We insist that the bequest to both societies is void for uncertainty in the devisee, and the property, not being otherwise disposed of in the will, vested in the next of kin, and no subsequent appointment of trustees for said societies, or act of incorporation granted by the Legislature, can divest them of their interest. 4 Wheat. 1;3 Pet. 99. When the will in this case was admitted to probate, and the defendant Allen qualified as executor, the rights of the parties were fixed by law, and they could not be divested out of the defendants, except by the judgment of their peers, or the law of the land. The appointment of trustees to carry into effect the provisions of the will in question is a judicial act, and ought to have been executed by the courts, and not the Legislature. The act appointing A. L. P. Green, and others trustees is unconstitutional and void. 2 Yerg. 554, 599;4 Id. 202;5 Id. 320;6 Id. 119; Jones v. Perry, 10 Id.

These decisions were made by this court previous to the adoption of the present Constitution, and, if any doubt could have been originally entertained about their correctness, none can exist now about the constitutionality of the act in question. The 7th section of the 11th article of the Constitution denies to the Legislature the power to suspend any general law for the benefit of particular individuals, or to pass any law for the benefit of individuals, inconsistent with the general law. 3 Humph. 483.

The bequest to the Missionary Society, not being coupled with a trust, is clearly void. But it is insisted that the bequest to the Tennessee Annual Conference of the Methodist Episcopal Church, for the benefit of the institutions of learning under the superintendence and control of said society, is a bequest upon trust, and that a court of equity will take jurisdiction of the trust, and will not permit it to be defeated on account of the incapacity of the trustees to take the property, but they will appoint trustees to carry into effect the provisions of the trust according to the intention of the testator. We do not controvert the correctness of the general principle as here stated, but we deny its application to the case before the court. To assume that the bequest in question is a valid trust is begging the question in dispute between us. We deny that there is any valid trust declared in the will in favor of the complainants which a court of equity can carry into execution. It makes no difference how clearly a trust may be declared in a party, yet if the terms by which it is created are so vague and indefinite that courts of equity can not clearly ascertain its objects or the parties who are to take as beneficiaries, or the manner in which the trust is to be carried into execution, the trust fails, and the property falls into the general estate of the donor. 2 Story's Eq., sec. 979, 1156, 1157, 1183, 1197; 1 Dev. 276; 2 Keen, 255; 1 Turn. & Russ. 260, 270, 271; 1 Russ. & M. 232; 11 Cond. Rep. 150: 5 Har. & J. 393.

Here the bequest is to the Tennessee Annual Conference, for the benefit of institutions of learning under their superintendence, and to the Missionary Society of the Methodist Episcopal Church, and to such other purposes as the said conference, in their wisdom, may deem best. Who are the beneficiaries to take this bequest? The bill does not allege that the conference has any institutions of learning under its superintendence and control. How shall the money be applied? Shall it be used in the purchase of books, maps, philosophical or astronomical apparatus? Shall it be applied to building of school-houses, academies, or endowing professorships in colleges of law, medicine, or divinity? Shall it be applied to the benefit of male or female schools, or shall it be applied to such other purposes as the said conference may deem best in their...