Lehnherr v. Feldman

• Decision Date: 10 December 1921
• Docket Number: 23,364
• Citation: 202 P. 624,110 Kan. 115
• Parties: LOUIS LEHNHERR, Appellee, v. HENRY FELDMAN et al. (J. N. HARRISON et al., as the Board of Managers of the Kansas Soldiers' Home, Appellants)
• Court: Kansas Supreme Court

202 P. 624

110 Kan. 115

LOUIS LEHNHERR, Appellee, v. HENRY FELDMAN et al. (J. N. HARRISON et al., as the Board of Managers of the Kansas Soldiers' Home, Appellants)

No. 23,364

Supreme Court of Kansas

December 10, 1921

Decided July, 1921

Appeal from Nemaha district court; WILLIAM I. STUART, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Bequest to the Kansas Soldiers' Home--Home a Charitable Institution--Valid Bequest. In the residuary clause of his will, a testator directed that the residue of his property, real and personal, should go to the Kansas State Soldiers' Home at Fort Dodge, Kansas. Held:

(a) That the institution is a charitable one within the meaning of the term as applied to the construction of conveyances by deed, or gifts and devises by will.

(b) Notwithstanding the home is subject to be changed and its scope and purpose enlarged as the legislature in its wisdom may deem advisable, it is none the less a permanent institution and capable of taking property by gift or devise.

(c) Although the bequest defines no specific purpose for which the property devised shall be devoted, the designation and limitation of the uses to which the property may be applied is found in the name and nature of the devisee.

Richard J. Hopkins, attorney-general, and J. K. Rankin, assistant attorney-general, for the appellants.

R. M Emery, R. M. Emery, jr., and F. N. Prout, all of Seneca, for the appellee.

OPINION

PORTER, J.:

Alfred W. Lehnherr, a resident of Nemaha county, died, and on the 17th day of October, 1919, his will was duly probated. The will bequeathed to the defendant, Henry Feldman, the sum of $ 20,000 and provided that the residue of the estate, real and personal, should go to the Kansas State Soldiers' Home at Fort Dodge, Kan. The plaintiff, Louis Lehnherr, is the brother and only heir at law of the testator, and brought this action to set aside the residuary clause of the will on the ground that the soldiers' home is not a charitable institution within the meaning of the law governing charitable bequests.

The defendants, who are the managers of the soldiers' home, demurred to the petition, and appeal from the decision of the trial court overruling their demurrer and in rendering a judgment declaring that the plaintiff is entitled to take under the residuary clause.

The persons who are entitled to the benefits and privileges of the soldiers' home at Dodge City are thus described in the statute:

"All honorably discharged soldiers, sailors and marines, who served in the army, navy or marine corps of the United States during the war of the rebellion or the Spanish-American war or Phillipino insurrection, or the Cuban campaign, and who were honorably discharged, who may be disabled by disease, wounds, old age or otherwise disabled, and who have no adequate means of support, and who, by reason of such disability are incapacitated from earning their living, and who would otherwise be dependent upon public or private charity, together with such members of their families as are dependent upon them for support, and not prohibited by the provisions of chapter 304 of the Session Laws of 1917, shall be entitled to admission to such institution, subject to the rules and regulations that may be established by the board of managers for the management and government thereof." (Laws of 1919, ch. 301, § 1.)

It has been well said that--

"It is immaterial whether the purpose is called charitable in the gift, if it is so described as to show that it is charitable in its nature." (Jackson v. Phillips and Others, 14 Allen 539, 556.)

The soldiers' home is one of the charitable and benevolent institutions established by the state. It is true that it is supported by appropriations of the legislature and by a donation made annually by the United States government. In 1891 the legislature passed an act formally accepting the provisions of an act of congress donating to each state maintaining a soldiers' home $ 100 per capita per annum, to assist the state in maintaining such home. The statute provides that all bills and accounts for maintaining the home shall be "paid by the state treasurer out of any money appropriated or donated for that purpose." (Gen. Stat. 1915, § 10574.)

It is plaintiff's contention that the expression "or donated for that purpose" does not contemplate money that might be donated by individuals, but was intended solely to include the annual donation provided by the federal government. On the other hand, defendants rely upon the same language as a legislative recognition of the right of the soldiers' home to receive donations from any source. It would seem that if the legislature had intended to restrict the right of the institution to accept donations to the particular one made annually by congress it would have found appropriate language to indicate such an intention. The use of the general expression may be said to recognize the right of the home to receive donations from any source. We do not regard this consideration as controlling.

In our opinion, the institution is clearly a charitable one within the meaning of the term as applied to the construction of conveyances by deed, or gifts and devises by will. It is the settled rule that courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law.

It has been held that a testamentary disposition for the benefit of the poor of a definite locality is a charitable use. ( Trim's Estate, Trim's Appeal, 168 Pa. 395.) In that case the residue of an estate was "'to go to the benefit of the poor of Eldred township, Warren county, Pa.; to have the use and nothing more . . . for the benefit and use . . . and when fully proven up to be managed by the overseers of the poor in said county for the benefit of Eldred township.'" (Syl.) It was held that the trustees were sufficiently designated, notwithstanding their correct corporate name was not given, and that the devise was a charitable use.

It is urged by the plaintiff that the soldiers' home as an institution of the state has no permanency because it is subject to be altered, its purpose enlarged as to its object, or discontinued entirely as the legislature in its wisdom may deem best. The will in this case was executed on June 22, 1918, when this country had upwards of a million of its youth on foreign soil engaged in the World War, and when millions more were being transferred overseas or were in training camps preparing for the same service. The testator lived a year and a half after the execution of his will. He may have considered the probability that the legislature in the future will enlarge the scope and purpose of the soldiers' home and open its doors to the disabled soldiers of the World War. There is no merit in the contention that the institution is not a permanent one, merely because its purposes may be enlarged as the legislature from time to time may deem advisable.

The fact that the home is supported by appropriations raised by taxation makes it none the less a charitable institution. The language of the statute creating the institution shows it to be charitable in its nature.

Another contention is that the bequest is indefinite because it defines no specific purpose for which the property devised shall be devoted. Counsel for plaintiff say in their brief:

"Was it intended by the testator that it should be used to purchase clothing, fuel, provisions? The will does not so state. Was it to be used in educating the members of the home? Such purpose cannot be gathered from the clause itself. Was it to erect a library or other building?"

The same contention was urged in the case of Carder v. Comm'rs of Fayette County, 16 Ohio St. 353. In that case one Peter Carder bequeathed to the county of Fayette in Ohio his farm on condition that the county should pay to his wife certain income yearly as long as she lived. The same general objections were raised to the validity of the instrument that are urged against the will now under consideration. It was insisted that neither the county nor its commissioners possessed power to hold real estate given by devise; that the devise, eo nomine, and not to the county's corporate agents, the board of county commissioners, was void because the will failed to specify the uses to which the property was to be appropriated. In the opinion it was said:

"It remains to inquire, whether the devise is void because it designates no uses to which the property is to be applied. A county can hold and use real estate only for certain specified public...