Greenway v. Irvine's Trustee

• Decision Date: 19 May 1939
• Parties: Greenway et al. v. Irvine's Trustee et al.
• Court: United States State Supreme Court — District of Kentucky

279 Ky. 632

Greenway et al. v. Irvine's Trustee et al.

Court of Appeals of Kentucky.

May 19, 1939.

1. Charities. — Where testator empowered his widow to approve, alter, or change his will in whole or in part, and widow devised residence to medical society for a hospital, heirs of devisees of residence named in testator's will could not claim residence by "reverter" because of violation of widow's directions concerning operation of hospital in view of prior decision holding that widow intended to revoke appointment made by testator and to exercise her power of appointment.

2. Charities. — Persons who fail to show a property interest in and to themselves or an interest as beneficiaries of a charitable trust may not maintain an action to have the trust declared void and may not dictate its enforcement.

3. Charities. — The beneficiaries of a charitable trust may maintain a suit to enforce the trust or to prevent diversion of the funds.

4. Charities. — Where property is devised for charitable uses, the donor or a residuary legatee has no interest in the trust property except as a member of the public, and he can question the activities

of the trustee only by a bill preferred on behalf of himself and all others similarly situated in conjunction with the Attorney General representing the public.

5. Charities. — Persons who showed no interest in the remainder of a charitable trust or a reversionary interest in the trust property had no power to attack or direct execution of the trust and could not invoke the aid of chancery to have the trust annulled, controlled, or directed by the court.

Appeal from Madison Circuit Court.

Grant E. Lilly for appellants.

J.J. Greenleaf and Ross & Ross for appellees.

Before W.J. Baxter, Judge.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

This appeal involves the consideration of the last will of Elizabeth S. Irvine, by which she disposed of "Irvinton," a pretentious mansion house, on a lot of ten or more acres, within the corporate limits of Richmond, Kentucky, and the construction of the will of her husband, who predeceased testatrix. "Irvinton" had been owned by the father of testatrix, later by her husband, she taking title thereto under the husband's will.

Appellants are G.C. and James Greenway, Sarah Keller, and John S. Greenway, infant, by his guardian, heirs-at-law of William Greenway, who died in 1928. Appellees are John W. Crooke, executor of and trustee under Mrs. Irvine's will; the Kentucky Medical Association, Kentucky State Board of Health, United States Public Health Service, and Robert Sorey, he being in charge of a hospital maintained on the premises in controversy. The City of Richmond is an appellee.

Mrs. Irvine's will (holographic) is quite lengthy, a transcription covering more than twenty-five typewritten pages; its length, in a measure due to numerous repetitions, apparently made for the purpose of emphasis, and was written June 1, 1915. Mrs. Irvine died November 5, 1920; the will was probated December 6, 1921. There is no question of the validity of the will because of lack of mental capacity, or the exercise of untoward influence. All parties seem to agree that testatrix was a woman of the highest character, intelligent to an exceptional degree, and as is gathered from the will, proud of her ancestral lineage. Her will gives some interesting family history, calling attention to the fact that her mother was the oldest child of Dr. Ephriam McDowell, "The Father of Ovariotomy," whose wife was a daughter of Isaac Shelby.

She recites:

"My long life has been passed in this beautiful city, at the foot of the hills. God has pleased to prosper me here. * * * Many of my ancestors are sleeping in our beautiful `City of the Dead.' I alone remain yet a little while. * * * It seems therefore appropriate that I show my appreciation by perpetuating the ancestral name of Irvine, (testatrix' maiden name) by making the following bequest:"

To the Medical Society of Kentucky she left the use of her home "Irvinton" to be called forever, "The David Irvine and Ephriam McDowell Memorial," to be converted into a "memorial of medicine and surgical treatment of patients." She then describes the portion devised as lying in Richmond, between 4th Avenue and Second Street, and in this clause first uses the word "hospital," saying that she bequeathes and donates the same "to the uses and purposes of said hospital." She writes: "Just here I will be more explicit as to a helping of the support of this grand charity — for an endowment fund of the memorial." She then relates the ownership of a valuable lot in Kansas City, under lease for a long period at $2,000 per year, payable quarterly, which was given to the use of the Memorial, and the property was to go to the Memorial at the expiration of the lease.

Testatrix named the appellee, John W. Crooke, and D. Irvine White as executors, and as we read the will, intended that they should qualify and act as trustees. Mr. Crooke qualified and is acting in both capacities; Mr. White, a non-resident, did not qualify. Testatrix also named two advisory trustees, who were non-residents. There were many directions, conditions, restrictions, and limitations in the writing.

While the building at Irvinton was to be used as a hospital, patients were to pay for treatment and services, except that a limited number of charity patients were to be admitted. No foreigners, colored persons or soldiers were to be admitted; no one afflicted with an eruptive or contagious disease was to be treated therein. There were to be no public gatherings, picnics, chautauquas, shows or meetings to be held or conducted on the grounds. Each and every room in the building was to be appropriately marked in memory of some member of the Irvine family, and a handsome monument to be erected on the grounds. These are given as examples of the numerous conditions and restrictions contained in the will.

The devise and bequest of the Kansas City property and the yearly rental failed, because of a holding of the courts of Missouri, to the effect that under the statutes of that State Mrs. Irvine's will was not subject to probate. White v. Greenway, 303 Mo. 691, 263 S.W. 104.

We come now to the pleadings and must state that we have had difficulty in considering them in an orderly manner. It appears that the pending matter is a continuation of the case of Greenway v. White, infra, petition in which was filed in February, 1921, involving other matters, and which was decided on appeal to this court in March, 1922, reversed and remanded with directions to enter judgment in accordance with our opinion. Whether this case went off the docket below is not shown. Many of these pleadings were filed in that case, involving certain features of the wills of William Irvine and testatrix. However this may be, and regardless of when, why or how the pleadings were filed, or were made part of this record, we have, together with the transcript on this appeal, observed the files in the 196 Kentucky case, infra.

The matter before us was begun by the trustee and executor filing an amended petition, in which he recites that since the filing of an original petition, and after diligent inquiry and effort, and being advised, he had ascertained and concluded that there had never been but one recognized Medical Society or Association in Kentucky, the original having been the Society created in 1851, but succeeded finally by the Association created in 1929. Upon such knowledge and advice he had been able to make satisfactory arrangements with the State Medical Association, as successor to the original Kentucky Medical Society, through conferences and agreements, by which the members or a committee of the Medical Society, with his approval, have been enabled to make satisfactory arrangements with the Kentucky State Board of Health, and the United States Public Health Service, to establish and maintain, and there has been established since 1926, and is being maintained at Irvinton, under the supervision of the U.S. Government, a free hospital for the treatment of trachoma. In his original petition he had asked advice, due no doubt on his part, as to whether he could make a satisfactory arrangement with the medical association.

It is plead that it has been proven possible, under such arrangement, for him to carry out the provisions of Mrs. Irvine's will relating to the maintenance of a memorial hospital at Irvinton. Having thus plead, the trustee asked the court to make suitable and appropriate orders and directions for the continued exercise of his trust, which the court did not do.

By way of answers, counterclaim and cross-petition, appellants first set up, in appropriate pleadings, their right to the Irvinton property. They then alleged the violation of some twenty or more of the restrictions, and failure to carry out many conditions imposed upon the trustee or donee of the property. It is unnecessary to discuss them, but the most flagrant violation charged was that of operating a hospital for the treatment of trachoma, when the will prohibited the admittance of any person afflicted with an eruptive or contagious disease, it being alleged that trachoma was and is a contagious disease. Such cases are admittedly treated.

The power of the Medical Association to hold and in conjunction with the State Board of Health and the Federal Health Agency to thus operate the memorial was challenged. It was upon these failures and violations of the terms of the will, and the lack of legal capacity on the part of those maintaining the hospital, to thus hold and maintain same, that appellants pitched their right to a reversionary interest, under the will of William Irvine. In short, they alleged a complete failure of trust, and a resulting "reverter." The court upon submission dismissed appellants' claim.

Appellants trace their right of title to the property, or so much as was devised for memorial...