Heinlein v. Elyria Sav. & Trust Co.
| Decision Date | 09 February 1945 |
| Citation | 62 N.E.2d 284,75 Ohio App. 353 |
| Court | Ohio Court of Appeals |
| Parties | HEINLEIN et al. v. ELYRIA SAVINGS & TRUST CO. et al. (two cases). |
Syllabus by the Court.
1. A gift is a public charity when there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons; and a gift for the establishment and support of a public park confers such benefit.
2. The fact that a testator desires to have his name associated with the charity and to perpetuate it therein, does not alter the charitable character of the bequest, nor interfere with its execution and fulfillment.
3. If property is given in trust to be applied to a particular charitable purpose, and it is not or does not become impossible, impracticable, inexpedient or illegal to carry out the particular purpose, a court of equity is not entitled to substitute a different scheme for the one prescribed in the instrument which creates it, merely because a coldly wise intelligence, impervious to the predilections which inspired the testator's liberality, would have dictated a different use of the money.
4. If property is given in trust, to be applied to a particular charitable purpose, and it is or becomes impossible impracticable or illegal to carry out the particular purpose and if the settlor manifested a general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor. (II Restatement of the Law of Trusts, Section 399.)
5. The absence of a general charitable intent of a settlor precludes the application of the doctrine of cy pres.
6. Section 10512-8, General Code, has supplanted the common-law rule that a bequest for the permanent care of the settlor's cemetery grave or family lot violated the rule against perpetuities, and under the statute such trusts are valid.
7. A trust or any of its separate provisions will not be permitted to fail for want of a suitable or legal trustee. When there is such failure of designation, either from original or supervenient capacity to act, the court under its general equitable power will make the proper appointment.
8. An excessive gift for the upkeep and maintenance of a cemetery lot may be reduced by the court on the ground of public policy, when the excess is given to a public charity.
9. If the settlor properly manifests an intention that, if there should be a surplus remaining after the performance of a charitable trust, the trustee should hold the surplus upon another charitable trust, no resulting trust of the surplus arises, but the trustee holds the surplus upon the other charitable trust.
Stevens & Stevens and Don W. Myers, all of Elyria, Baker, Hostetler & Patterson, of Cleveland, and Fred T. Saussy, of St.
Petersburg, Fla., for appellants Gust Heinlein and others.
R. H. Rice, of Elyria, Resek & Cook, of Lorain, Anthony Nieding, of Elyria, and Lewis M. Simes, of Ann Arbor, Mich., for appellant Elyria Savings & Trust Co., executor and trustee, and appellee Anthony Nieding.
Richard S. Horan, City Solicitor, and R. F. Vandemark, both of Elyria, for appellee City of Elyria.
R. E. Baird, of Elyria, for appellee Berdie Heinlein.
A. H. West, of Elyria, for appellee Salvation Army, Inc.
This is a suit in equity, in which this court, in an appeal for trial de novo, is petitioned for a construction of the will of William Wagner, deceased. The action is brought by three of the five first cousins of the testator, his next of kin. The remaining two, having declined to join as plaintiffs, were made defendants.
The plaintiffs pray that certain trusts sought to be created for the maintenance of a family cemetery lot and for the creation and maintenance of two parks, be declared invalid, and that a resulting trust be declared in favor of the plaintiffs and other heirs at law. The Elyria Savings & Trust Company, executor and trustee under the will, in its answer asks that the controversial provisions of the will be declared charitable, and that, if the directions of the testator should be found impractical in relation to the charitable purpose, the doctrine of cy pres be applied for the preservation of the trust. The city of Elyria, upon leave of court, in an answer and cross-petition, prays the court to apply in its favor the doctrine of cy pres and to order the residuary estate to be given over to it for the care and maintenance of Cascade Park, an old and established park within the corporate limits.
The estate in question is appraised at approximately $185,000. The will directs a number of specific bequests and then continues with the controversial items 9 and 14, which dispose of the residue through the Elyria Savings & Trust Company, the named trustee.
Item 9 provides:
'I give, devise and bequeath my homestead known an 209 West Bridge street, Elyria, Ohio, together with the contents, furnishings and household furniture therein contained, and all other real estate, together with the residue of my estate remaining after the payment of all my just debts, funeral expenses, cost of monument as provided for in item 2 above, and the aforementioned bequests, also all costs of administration, to The Elyria Savings & Trust Company of Elyria, Ohio, trustee, for the uses and purposes hereinafter mentioned and subject to the following terms and conditions:
'My said trustee shall expend not less than six hundred dollars ($600.00) per year out of the net income of said trust estate for the upkeep and beautifying of our family lot in Ridgelawn Cemetery, Elyria, Ohio. It is my wish that said lot be kept in excellent condition and that the graves therein be decorated with beautiful urns containing beautiful flowers, also fresh flowers and wreaths made with the everlasting flower of Florida called the statice flower.
'The net remaining after the payment of the foregoing shall be retained by my trustee in a fund to be known as the 'Wagner Brothers Park Fund.' My said trustee is hereby authorized and directed to expend not to exceed the sum of sixteen thousand dollars ($16,000.00) of said fund to convert the site of my homestead in a public park to be known as 'Wagner Brothers Park.' My said trustee is further authorized, empowered and directed to sell or dispose of any buildings on said premises and to beautify said premises with suitable plantings of beautiful flowers and shrubs, good watering system, together with the necessary walks or paths. The install and erect a very beautiful electric illuminated fountain of the very best and latest type, one which will throw water to a good height. There is to be no seats or benches, no drinking fountain and no rest rooms. I want the park to be a beauty spot in the superlative degree, through which the public may walk and enjoy its superb beauty. I desire constructed a stone wall seven (7) feet high by eighteen (18) inches thick along the entire east side of said park and also along the entire north side of said park, wall so constructed that it may be flower covered, I prefer the everlasting statice flower of Florida, I desire this as a beautiful background for the park, there is also to be erected an appropriate tablet or marker designating said park as 'Wagner Brothers Park.' I wish the maple tree now growing at the front porch of my home and the maple tree at the rear porch to remain in the park, remove all others. I desire new cement walks on the North street side and West Bridge street side extending out to the curb.
'My trustee is further authorized to employ an experienced caretaker for said park who will be capable of keeping the park beautiful in every respect, caretaker to be paid fifteen dollars ($15.00) per week, to employed from early spring to late fall.'
Item 14 is:
'All surplus earnings from the original Wagner Brothers Park Fund, hereafter; shall be set aside in a fund to be known as Wagner Brothers Reconstruction Park Fund, to be used for repairs, new improvements and modern equipment for the two said parks, in order to keep the two said parks in the most excellent and beautiful condition.'
The solicitor of Elyria and the special counsel for the said city have propounded the following questions for the court's consideration. The answers to them, we believe, determine the case. They are:
1. Did William Wagner create a charitable trust under his will?
2. If so, is the trust impracticable, impossible or inexpedient of fulfillment?
3. If a charitable trust was created, and the fulfillment of this is impracticable, impossible or inexpedient,...
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