Hedin v. Westdala Lutheran Church

• Decision Date: 27 July 1938
• Docket Number: 6508
• Court: Idaho Supreme Court
• Parties: MARIA HEDIN, OTTO JOHANNESSON and CARL WILLIAM NELSON, Appellants, v. WESTDALA LUTHERAN CHURCH, THE SWEDISH MISSION CHURCH, Troy, Idaho, THE BETHANY OLD PEOPLE'S HOME, Spokane, Washington, JENNIE BACHMAN, VIRGINIA SHIRLEY BACHMAN, GERALDINE BACHMAN, and OLE BOHMAN, Troy, Idaho, Respondents

81 P.2d 741

59 Idaho 241

MARIA HEDIN, OTTO JOHANNESSON and CARL WILLIAM NELSON, Appellants, v. WESTDALA LUTHERAN CHURCH, THE SWEDISH MISSION CHURCH, Troy, Idaho, THE BETHANY OLD PEOPLE'S HOME, Spokane, Washington, JENNIE BACHMAN, VIRGINIA SHIRLEY BACHMAN, GERALDINE BACHMAN, and OLE BOHMAN, Troy, Idaho, Respondents

No. 6508

Supreme Court of Idaho

July 27, 1938

WILLS - TRUSTS - CHARITIES-FAILURE TO DESIGNATE BENEFICIARY-TESTAMENTARY CAPACITY-INSTRUCTIONS.

1. The creator of a private trust must designate the beneficiary.

2. A testator's will should be upheld whenever possible.

3. Where trust property intended for use of a public charity is not being properly applied, the attorney general is without power to commence and maintain a suit to protect such charity. (I. C. A., secs. 5-301, 65-1301.)

4. A provision in will giving residue of estate to trustee for charitable or religious purposes as the trustee should elect held invalid for failure to designate a beneficiary.

5. In will contest on ground of lack of testamentary capacity instruction that "a person may be capable of making a good will after he or she is so far gone into imbecility and mental darkness as to be no longer capable of making a valid deed or transacting business generally" held erroneous as suggesting to jury that a person almost entirely bereft of mental power and understanding would still be able to make a valid will and as failing to distinguish between simple and complicated wills.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Appeal by contestants of a will from judgment against them by the district court on appeal from an order of probate court denying their petition for revocation of letters testamentary and upholding the will. Reversed.

Reversed and remanded. Costs awarded to appellants.

Murray Estes and Latham D. Moore, for Appellants.

Bequests to charitable, or religious uses and purposes to be determined by an executor or trustee, cannot be supported either as general trusts, or for charitable uses. ( Morice v. Bishop of Durham, (England) 9 Ves. 391; Jones v. Patterson, 271 Mo. 1, 195 S.W. 1004, L. R A. 1917F, 660, and cases cited; Wentura v. Kinnerk, 319 Mo. 1068, 5 S.W.2d 66.)

Where the trustee is given broad and unlimited power in the management and distribution of the trust estate, it becomes a personal trust and he is considered as holding such a beneficial interest as to bring him within the rule fixing the burden of proof upon the proponent. (Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A. L. R. 942; In re Hartley Estate, 137 Cal.App. 630, 31 P.2d 240.)

Verner R. Clements and A. H. Oversmith, for Respondents.

It is now settled upon authority which it is too late to controvert that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the object. (Gossett v. Swinney, (C. C. A., 8th Cir., Mo. 1931) 53 F.2d 772; Saltonstall v. Sanders, 11 Allen, (93 Mass.) 446 (1865); Weber v. Bryant 161 Mass. 400, 37 N.E. 203; Everett v. Carr, 59 Me. 325; Fox v. Gibbs, 86 Me. 87, 29 A. 940; Dunn v. Morse, 109 Me. 254, 83 A. 795.)

It is well settled that a man may possess testamentary capacity, although unable to transact business. (Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082; In re Sexton's Estate, 199 Cal. 759, 251 P. 778; In re Holloway's Estate, 195 Cal. 711, 235 P. 1012.)

MORGAN, J. Holden, C. J., and Givens, J., AILSHIE, J., Concurring. BUDGE, J., Dissenting in part and Concurring in part.

OPINION

MORGAN, J.

The appeal in this case brings before us for consideration the will of Johan Johannesson, the sixth paragraph of which is as follows:

"Sixth:--All of the rest, residue and remainder of my property, whether the same be real, personal or mixed and wheresoever the same may be situated, I will, devise and bequeath to O. Bohman of Troy, Idaho, as trustee and in trust, however, for the following purposes:--That the said O. Bohman, as such trustee, shall handle and manage all of such property, including the leasing of any real estate and the loaning of any funds which may come into his hands on safe securities, and shall sell and dispose of any real estate I may own at the time of my death which is not otherwise disposed of in this my Last Will and Testament, and shall pay out such moneys for charitable or religious purposes from time to time as my said trustee may elect, giving and granting unto the said O. Bohman, as trustee, full power and absolute authority to distribute such moneys as may come into his hands as such trustee for any and all such charitable or religious purposes as my said trustee may come into his hands as such trustee for any and all such charitable or religious purposes as my said trustee may elect from time to time, and that any property I own at the time of my death may be sold, handled or leased by my said trustee and executor without order of court except as otherwise provided by law, and that such moneys paid out for charitable and religious purposes may be paid out by my said trustee and executor without any order of court and without approval of the Court, save and except that my said executor and trustee shall annually report to the Probate Court of Latah County, State of Idaho, in the matter of my estate, all expenditures or payments of money for charitable or religious purposes which may be paid out during the preceding year. It being further my will that the said O. Bohman as such trustee shall be entitled to compensation for his services as such trustee and for his reasonable expenses in carrying out this trust, and such compensation and expenses shall be reported to the Probate Court of Latah County, State of Idaho, and approved by such Probate Court."

Appellants contend this bequest is so vague and indefinite as to the time and manner of disposition of the trust funds therein sought to be provided for, and as to the identity of the beneficiaries as a class, that it is void for uncertainty.

It would be impossible to harmonize the decisions of the courts of this country on the question here presented, and we shall not attempt to do so, but will cite, and briefly quote from, some of the cases sustaining the rule which appears to us to be most nearly in harmony with the legal structure of Idaho.

The courts seem to be unanimous in the opinion that the creator of a private trust must designate the beneficiary. In England, and in some of the states of this country, a rule has been established, in the interest of trusts for public charitable uses, whereby they will be upheld although the beneficiary is not designated. Trusts so upheld are dependent upon the English doctrine of cy pres, whereby the king, or the chancellor as the keeper of the king's conscience, has the power, acting ministerially as distinguished from judicially, to designate the beneficiary of a trust for charitable uses, where one has not been designated by the donor or where, for any cause, the trust would fail without such ministerial action. Here, we have no king and, in this state, we have no court with such ministerial power.

In Perry on Trusts, seventh edition, volume 2, page 1222, section 718, it is said:

"In studying the cases upon charitable uses, cited in the preceding sections, it is necessary to bear this suggestion constantly in mind: in England the court of chancery, or the Lord Chancellor, exercised a double function,--the one a judicial function, in adjudicating upon the legal question arising upon charitable gifts; the other a ministerial function, as keeper of the king's conscience. The general superintendence or administration of all charities was in the king as parens patriae. The judicial part of this administration the king intrusted to the ordinary equity jurisdiction of the court of chancery. That part of the king's jurisdiction over charities which did not come within the ordinary equity jurisdiction of the court, the king exercised as part of his prerogative by his sign-manual. The chancellor often exercised this prerogative power of the king; and thus many charities have been established and administered by the chancellor, and no very clear line has been drawn between those established by him exercising his ordinary judicial power in the court of chancery, and those established by the extraordinary or prerogative power of the crown exercised through the chancellor."

Although the doctrine of cy pres has not been generally adopted in the United States of America, some of the very able courts of this country seem to have failed to observe the distinction pointed out in the above quotation and have proceeded as if American courts possessed the powers of the King of England when acting in his capacity as father of his country.

In Pomeroy's Equity Jurisprudence, fourth edition, volume 3, page 2305, section 1027, it is said:

"In administering charitable gifts, the English courts have leaned so strongly in favor of sustaining the trusts, even when the donor's specified purpose becomes impracticable that they invented at an early day, and have fully established, the so-called doctrine of cy-pres. The doctrine may be stated in general terms as follows: Where there is an intention exhibited to devote the gift to charity, and no object is mentioned, or the particular object fails, the court will execute the trust cy-pres, and will apply the fund to some charitable purposes, similar to those (if any) mentioned by the donor. 'If the donor declare his intention in favor of charity indefinitely, without any specification of objects, or in favor of defined objects which happen to fail from whatever cause,--even though in such cases the particular mode of operation...