Kain v. Gibboney

• Decision Date: 01 October 1879
• Citation: 25 L.Ed. 813,101 U.S. 362
• Parties: KAIN v. GIBBONEY
• Court: U.S. Supreme Court

101 U.S. 362

101 U.S. 362

25 L.Ed. 813

KAIN v. GIBBONEY.

October Term, 1879

APPEAL from the Circuit Court of the United States for the Western District of Virginia.

On Aug. 7, 1853, Malvina Matthews, of Wythe County, Virginia, made her last will and testament, which was duly addmitted to probate, devising a tract of land on which she then lived, to Granville H. Matthews in trust for her two daughters, Malvina and Eliza, and authorizing him to sell it and invest the proceeds at his discretion; one half of the annual interest or dividends accruing therefrom to go to each of them as a fund, for her separate and sole use and benefit, especially in the event of her marriage. The will declared that one moiety of the principal arising from the sale of the land might be disposed of by each, either by deed to take effect after her death, or by will, and not otherwise.

Matthews sold the land, but was removed from the executorship and trusteeship; and Robert Gibboney, who was appointed in his stead, received of the trust fund $7,985.88, of which one-half belonged to said Eliza. The latter died, and her will, bearing date Dec. 9, 1854, was, in 1861, admitted to probate in the county court of Wythe County. Robert Gibboney qualified as her administrator. The will, after making various pecuniary bequests, among them one of $500 to 'Richard V. Wheelan, Roman Catholic Bishop of Wheeling, Virginia, and his successors in that church dignity,' contained the following provision:——

'In the event that I may hereafter become a member of any of the religious communities attached to the Roman Catholic Church, and am such at the time of my death, then it is my will that all the foregoing bequests and legacies be void, and that my executors hereinafter named shall pay over the whole of the property or other thing, after disposing of the same for money, to the aforesaid Richard V. Wheelan, bishop as aforesaid, or his successor in said dignity, who is hereby constituted a trustee for the benefit of the community of which I may be a member, the said property or money to be expended by the said trustee for the use and benefit of said community.'

After making her will, she became a member of an unincorporated religious community attached to the Roman Catholic Church, known as the 'Sisters of Saint Joseph,' and was such at the time of her death.

In 1871, Alexander S. Matthews, her brother, instituted a suit against her legatees and other heirs-at-law in the Circuit Court of said county, to contest the validity of her will. An issue of devisavit vel non was ordered but not tried, as by consent of the counsel of the parties it was decreed that he should be paid from her estate the part thereof to which he would have been entitled had she died intestate; and that the devisee named in the will should proceed to collect the estate, and, after paying the debts and costs of suit, pay to said Alexander the tenth part. The suit was thereupon dismissed, with leave to have the same reinstated if necessary, for the purpose of enforcing the decree.

Some time thereafter, Elizabeth G. Gibboney, the executrix of Robert Gibboney, who had departed this life, delivered to Wheelan, as part of the estate of Eliza, a bond of one Johnson for $500.

Thereupon Wheelan brought this suit, in the court below, against said Elizabeth, to recover the residue of that estate, and alleged that said Robert had never invested the fund which he received as the trustee of Eliza, but had converted it to his own use, except the bond of Johnson.

Wheelan died, and John J. Kain having been duly appointed Bishop of Wheeling, the suit was revived in his name.

The bill was, on demurrer, dismissed, and Kain appealed to this court.

Mr. John W. Johnston for the appellant.

Mr. John A. Campbell, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

The bequest which the complainant seeks to enforce by this bill was an attempted testamentary disposition under the law of Virginia, and the matter now to be determined is whether by that law it can be sustained. It may be conceded that, notwithstanding its uncertainty, a legacy given in the words of this will, if for a charity, would be held valid in England, and in most of the States of the Union. But we have now to inquire, What is the law of Virginia? The gift was made to 'Richard V. Wheelan, Bishop of Wheeling, or to his successor in said dignity.' It was, therefore, in effect, a gift to the office of the Bishop of Wheeling. Neither Bishop Wheelan, nor any bishop succeeding him, was intended to derive any private advantage from it. Nothing was intended to vest in him but the trust, and that was required to be executed by whomsoever should fill the office of bishop, only so long as he should fill it and executed in his character of bishop, not as an individual. The bequest was practically to a bishopric, and as a bishop is not a corporation sole, it may be doubted whether, at the decease of the testatrix, there was any person capable of taking it. True it is, that generally a trust will not be allowed to fail to want of a trustee: courts of equity will supply one. But if it could be conceded that Wheelan was, in his lifetime, capable of taking the bequest, and that Bishop Kain is capable of taking and holding after the death of his predecessor, a greater difficulty is found in the uncertainty of the beneficiaries for whose use the trust was created. In the words of the will, they are a religious community, of which the testatrix contemplated she might die a member. She died a member of a religious community attached to the Roman Catholic Church, known as the 'Sisters of St. Joseph.' That is an unincorporated association, and it is the association as such, and not the individual members who composed it, when the testatrix died, which is declared to be the beneficiary. Nor is it the community attached to any local church which is designated, but a community attached to the Roman Catholic Church, wherever that church may exist. Its members must be constantly changing, and it must always be uncertain who may be its members at any given time. No member can ever claim any individual benefit from the bequest, or assert that she is a cestui que trust; and the community having no legal existence, can never have a standing in court to call the trustees to account. This bequest is, therefore, plainly invalid, unless it can be supported as a charity. And it is far from evident that it is a gift for charitable uses. It looks more like private bounty. Charity is generally defined as a gift for a public use. Such is its legal meaning. Here the beneficial interest is given to a religious community, but not declared to be for religious uses. There is nothing in the will to show that aid to the poor, or aid to learning, or aid to religion, or to any humane object was intended.

Conceding, however, that it is a charitable bequest, it is a Virginia gift, by a Virginia will, and in that State charities in general are not upheld to any greater extent than ordinary trusts are. This will be very manifest when the decisions of the courts of the State and of this court are reviewed. The subject was fully considered in Baptist Association v. Hart's Executors (4 Wheat. 1), decided in 1819. There it appeared that the testator, a citizen of Virginia, had bequeathed certain military certificates to 'the Baptist Association that for ordinary meets at Philadelphia annually, to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to...