Gwinn v. Church of Nazarene, Kansas City, Mo.
| Decision Date | 09 September 1965 |
| Docket Number | No. 37826,37826 |
| Citation | 66 Wn.2d 838,405 P.2d 602 |
| Parties | Ernest S. GWINN, Executor, Appellant, v. CHURCH OF the NAZARENE, KANSAS CITY, MISSOURI, or its successor, Respondent. |
| Court | Washington Supreme Court |
Arthur G. Barnett, Paul W. Robben, Seattle, for appellant.
Little, Gandy, Stephan, Palmer & Slemmons, Albert E. Stephan, Slade Gorton, Seattle, for respondent.
This is an appeal by the executor from a declaratory judgment upholding the validity of the residuary clause in the will of Wellsley Gwinn (referred to herein as paragraph Fifteenth).
The executor is the son and one of the three surviving children of the decedent, who died March 21, 1963, and is referred to herein as appellant. The will has been admitted to probate and appellant's appointment as executor thereof has been confirmed by the probate court. It is what is known in this state as a nonintervention will.
Respondent is the Church of the Nazarene, whose corporate office is in Kansas City, Missouri. It is stipulated that respondent is a religious organization whose financial and material affairs are managed by the General Board of the Church of the Nazarene, a charitable corporation duly organized and existing under the laws of the State of Missouri.
The decedent's will, which was executed December 27, 1962, contained cash bequests to each of his three children and to several grandchildren and great grandchildren. After providing for two other charitable bequests, the will contains paragraph Fifteenth, which reads as follows:
All of the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever character and wheresoever situated, of which I may die seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath unto the Church of the Nazarene, Kansas City, Missouri, or its successor, to be used in foreign missions, as directed by a committee composed of Homer Powell of Phoenix, Arizona, and W. W. Meenach, of Seattle, Washington, and Reverend George Coulter, Executive Secretary of Foreign Missions, Kansas City, Missiouri.
On December 17, 1963, appellant instituted this action by filing an application for declaratory judgment in which most of the foregoing matters were alleged. In the third paragraph of the application, the following five grounds are alleged for holding that the residuary bequest fails:
(a) That the bequest attempted to be made by its terms does not vest in the intended beneficiary;
(b) That the said beneficiary is not empowered to use the bequest as directed by the testator;
(c) That the beneficiary has no control over the persons named to direct the use of said bequest;
(d) The individuals named to direct the use of the bequest are not responsible by the terms of the bequest to any court or courts, nor to the intended beneficiary;
(e) Said bequest is vague, indefinite and too uncertain to be in force.
Respondent, in its answer, denied these allegations, and, in a counterclaim, alleged facts in support of the validity of paragraph Fifteenth. Respondent prayed for a declaratory judgment upholding the validity of the residuary clause of the will.
Thereafter, each party filed a motion for a summary judgment supported by affidavits and documentary evidence.
The trial court, after consideration of the affidavits and hearing the arguments of counsel, entered a summary judgment in which it denied appellant's motion and grandted respondent's motion therefor. The court directed appellant to pay over the residual estate to the General Board of the Church of the Nazarene 'as promptly as is reasonably possible.'
In support of his appeal from this judgment, appellant has made five assignments of error, which will be discussed below.
Under the provisions of paragraph Fifteenth (quoted above), the decedent had directed that the residue of his estate should pass to the Church of the Nazarene, Kansas City Missouri, 'to be used in foreign missions, as directed by a committee composed of Homer Powell of Phoenix, Arizona, and W. W. Meenach, of Seattle, Washington, and Reverend George Coulter, Executive Secretary of Foreign Missions, Kansas City, Missouri.'
The Committee was not aware of their appointment in the residuary paragraph of the will until this action was instituted by appellant some nine months after decedent's death. Thereafter, the members of the Committee conferred by telephone and unanimously adopted the following resolution:
NOW, THEREFORE, in performance of its duties under said paragraph Fifteenth of the Will of Wellsley Gwinn, deceased:
BE IT RESOLVED that said Committee composed of said HOMER POWELL, W. W. MEENACH and GEORGE COULTER unanimously direct that the entire residual estate of said Wellsley Gwinn, less any properly incurred expenses for probate, taxes, executor's fees, legal fees and disbursements, and any other properly incurred expenses, shall be paid by the executor of said estate to the General Board of the Church of the Nazarene, 6401 The Paseo, Kansas City 31, Missouri; and said Board shall place such funds in a Trust Account to be known as the 'Wellsley Gwinn Foreign Missions Memorial Fund'; and both the principal and income of said fund shall be disbursed and used only for foreign missions in the Australian Territories of North-East New Guinea and Papua for the establishment, support and promotion of missionary work including schools, missions, churches, dispensaries, hospitals, orphanages and evangelism.
AND, BE IT FURTHER RESOLVED, that, if any further or other action is required by said Church of the Nazarene, Kansas City, Missouri or said General Board, to carry out the directive of the Last Will of Wellsley Gwinn that his residual estate be left to said Church to be used in foreign missions, then this Committee and each member thereof is agreeable to meet by further telephone conferences or together in person in Kansas City, Missouri, or in Seattle, Washington, or elsewhere, to consider and adopt such further necessary and proper resolutions, if any.
Preceding the foregoing, and as a part of this same resolution, is a recitation of facts stating in substance that each member of the Committee had been personally acquainted with the decedent during his lifetime, and that he had requested them to serve on a committee for the sole purpose of directing the use of the residue of his estate by the Church of the Nazarene, Kansas City, Missouri, in its foreign missions only. Each had agreed to serve on such committee. It was further stated that each member of the Committee was a member of the Church of the Nazarene and had worked with the decedent in matters affecting the welfare of the church. As to the nature of the organization of the church, it was further stated:
WHEREAS, said Church of the Nazarene, Kansas City, Missouri, is a religious organization, the governing board of which is a charitable corporation organized under the laws of Missouri, named The General Board of the Church of the Nazarene, which Board, among other powers, manages the foreign missions of said Church; * * *.
In support of this statement, there are in the record the following documents: (1) Copy of the Pro forma Decree of Incorporation of the General Board of the Church of the Nazarene (entered by Circuit Court at Kansas City, Missouri in 1923), to which is attached the Articles of Association, (2) the bylaws of the General Board (as amended in 1957), and (3) the 1960 Manual of the Church.
Article VIII, § 2, of the Articles of Association of respondent church, reads as follows This corporation shall be capable of acquiring by gift, grant, purchase, devise, bequest, or other lawful manner, property, real, personal or mixed, which shall be held for the use and benefit of the Church of the Nazarene, to be employed as herein set forth; it shall have power to hold, mortgage, sell, convey or otherwise dispose of any such real or personal property; to control and manage all such property; to provide, establish, acquire, develop, manage, control and maintain such fund or funds as may be necessary to conduct the said objects and purposes of this Corporation.
On March 20, 1964, the Executive Committee of the General Board of the Church unanimously adopted the following resolution:
BE IT RESOLVED that the Executive Committee of the General Board of the Church of the Nazarene duly acting on behalf of said Board does hereby accept the bequest of Wellsley Gwinn, deceased, and concurs in the direction of the Committee created under Paragraph FIFTEENTH of the Will of the said Wellsley Gwinn, deceased, by its resolution dated February 21, 1964, a true copy of which is attached hereto, directing that the residual funds of said estate be set up in a Trust Account to be known as the 'Wellsley Gwinn Foreign Missions Memorial Fund' and that both the principal and income of said fund shall be disbursed and used only for foreign missions in the Australian Territories of North-East New Guinca and Papua, for the establishment, support and promotion of missionary work, including schools, missions, churches, dispensaries, hospitals, orphanages and evangelism; and does hereby agree immediately to commence the utilization of such funds for the purposes as directed by said Committee.
Appellant's first two assignments of error (which argued together) are that the trial court erred in failing to hold that the residuary clause was void and in granting respondent's motion for summary judgment and denying appellant's motion therefor.
Appellant's argument in support of these assignments of error is that the testator intended to create a charitable trust for a limited purpose, but that he failed to do so because his language did not create a definite trust. Appellant's argument is that the language is indefinite in two regards--(1) that no trustee was named, and (2) that if the committee of three were to be considered as trustees, then the trust...
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