Old Ladies Home Ass'n v. Grubbs' Estate

• Decision Date: 26 May 1941
• Docket Number: 34384
• Citation: 191 Miss. 250,199 So. 287
• Parties: OLD LADIES HOME ASS'N v. GRUBBS' ESTATE
• Court: Mississippi Supreme Court

199 So. 287

191 Miss. 250

OLD LADIES HOME ASS'N v. GRUBBS' ESTATE

No. 34384

Supreme Court of Mississippi

May 26, 1941

December 23, 1940

Suggestion Of Error Overruled May 26, 1941.

APPEAL from chancery court of Pike county, HON. R. W. CUTRER, Judge.

Petition by the executor of the estate of Mrs. Quinnie Varnado Grubbs deceased, for a construction of the will. A demurrer having been sustained to a pleading filed by the Old Ladies' Home Association, seeking to uphold certain testamentary gifts, the association appeals. Affirmed in part, reversed in part, and remanded.

On suggestion of error. Suggestion of error overruled.

Affirmed in part, reversed in part, and remanded. Suggestion of error overruled.

W. H Watkins, Lyell & Lyell, and Green & Green, all of Jackson, and John B. Brunini, of Vicksburg, for appellant.

Devises of personalty have always been valid except when made to religious or ecclesiastical corporations.

Sec. 270, Const. 1890; Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737; Bostich v. Elliott, ms. op., Book L, p. 296.

Not being a religious or ecclesiastical corporation, there is no applicability of Section 270, Const. 1890.

Hailey v. McLaurin's Est., 112 Miss. 705, 73 So. 727; Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468; Barton v. King, 41 Miss. 288; Greely v. Houston, 148 Miss. 799, 114 So. 740; Anderson v. Gift, 156 Miss. 736, 126 So. 656; Nat. Bank v. Savarika, 167 Miss. 571, 148 So. 656; White v. Keller, 68. Fed. 802.

Section 269 of the Constitution is in derogation of the right commonly possessed to dispose of property by will and is now wholly repealed. The only portion of said Constitution applicable is possibly, "Every devise . . . of lands contained in any last will . . . in favor of . . . any person or body politic, in trust, either express or implied, secret or resulting . . . shall be null and void, " and this simple declaration of this lady that "the house and lot now owned by me in the Town of Osyka shall be given to the Old Ladies' Home in Jackson, Mississippi, " does not do more than operate as a simple gift, whereasto there is no trust of any kind or character, and the trust, either express or implied, secret or resulting, conditions the invalidation of the instrument. If it is a simple devise and nothing more, then it is valid.

Wade v. Am. Colonization Society, 7 S. & M. 663; Berry v. Alsop, 45 Miss. 5; Leach v. Cooley, 6 S. & M. 93; Barton v. King, 41 Miss. 290; White v. Keller, 68 F. 802; Greeley v. Houston, 148 Miss. 799, 114 So. 740; Anderson v. Gift, 156 Miss. 736, 126 So. 656.

The prototype of Sections 269 and 270 of the Constitution first appear in the Code of 1857, Sec. 10, p. 301, which is headed: "Of Religious Societies or Congregations." We recognize that frequently captions are not controlling; but they may, nevertheless, in cases of doubt, be looked to for purposes of interpretation, where the provisions are doubtful. 57 C. J. 1006; 37 A.L.R. 942; 2 L.R.A. 609; Fairport v. Meredith, 292 U.S. 589, 78 L.Ed. 1446. Hence, with deference to Blackbourn v. Tucker, supra, we contend that these sections did not have reference to any other or further associations than religious or ecclesiastical. The caption so expressly declared; and, being in derogation of common right and the rights under the common law, would have to be strictly construed.

Holman v. Bennett, 44 Miss. 322; Potter v. Fid. & Dep. Co., 58 So. 713, 101 Miss. 823; Ingraham v. Regan, 23 Miss. 213; Marqueze v. Caldwell, 48 Miss. 23.

Here there is a specific and unconditional gift, not to a trustee for the benefit of a religious society, to be held in contravention of law, but a direct devise to a corporation authorized by Mississippi to have and receive property, without any limitation therein or thereasto whereunder or whereby either said property or its proceeds would be devoted directly or indirectly to charity or religious purposes, with the right of immediate sale for purposes which the state deemed worthy by making annual appropriations for the same identical ends. And when the State thus appropriates the people's money for such a purpose, there ought not to be any public policy against a citizen's giving to that same end. Under the present policy of Mississippi, there is naught to prevent this devise being valid, and we, with deference, suggest that these sections of the Constitution did not apply and were not intended to apply to this case.

Thomas Mitchell, of Magnolia, for appellee.

This case is controlled by the following authorities:

Secs. 269, 270, Const. of 1890; 1 Tucker's Commentaries on the Statutes of Uses and of Trusts, p. 32; Barton v. King, 41 Miss. 288; Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737; Hailey v. McLaurin's Estate, 112 Miss. 705, 73 So. 727; Maas v. Sisters of Mercy in Vicksburg, 135 Miss. 505, 99 So. 468.

Under Section 269 not only is devising land to a religious and charitable society void, but also a direction to sell land and apply the proceeds to the use of such religious and charitable society is void.

Greely v. Houston, 148 Miss. 799, 114 So. 740.

Appellant says that it is not "a religious institution." "It is a Mississippi corporation, it may not be a religious institution as they are few and far apart, but nonetheless it is a charitable institution, and under the Greely-Houston case there is no distinction between a "religious and charitable society, " therefore, the bequest of the land must be void.

Sec. 269, Const. 1890.

It is immaterial whether or not the Legislature appropriated funds for the support of the appellant.

Anderson v. Gift, 156 Miss. 736, 126 So. 656; Nat. Bank v. Savarika, 167 Miss. 571, 148 So. 656.

Sections 269 and 270, Const. 1890, were the law of the land at the date of the death of testator, and I am sure that the appellant's desire would be to enforce the laws as found at the date of the death of the testator, not what the law would be 100 years from now.

Green & Green, of Jackson, for appellant, on suggestion of error.

Simple devise does not create trust unless, with deference, the court reads into the will one of the normal corporate functions; there can be no trust when the trustee and beneficiary are the same corporation. Perhaps as counsel we were amiss in not citing all of the authorities supporting this well enunciated doctrine, but frankly it was not thought that the court could construe this ("That the house and lot now owned by me in the Town of Osyka shall be given to the Old Ladies Home in Jackson, Mississippi") as a trust. If it is not a trust, the devise is valid because this is a devise of the property to the Old Ladies Home, in its entirety.

The case of Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737, does not touch this case because in that case there was an express provision giving to the person the property in trust, which is clearly in conflict with the provisions of the Constitution.

Greely v. Houston, 148. Miss. 799, 114 So. 740.

In construing the will the court will attempt to carry out the intention of the testator, and the court will never create a trust.

Nat. Bank v. Savarika, 140 So. 649, 167 Miss. 571.

Where same person or corporation is both trustee and beneficiary no trust estate exists.

Enochs & Flowers v. Roell, 154 So. 299, 170 Miss. 44.

Loose and equivocal expressions do not suffice to create a trust.

Wax v. Pope, 168 So. 54, 175 Miss. 784; Landau v. Landau, 187 So. 224, 185 Miss. 45.

A devise to a corporation for its use in the exercise of one of its normal corporate functions is not a trust, but a simple and outright vesting of both the legal and equitable estate in said corporation, and upon this proposition, we, with deference, cannot be contradicted.

Williams v. Williams, 8 N.Y. 525, 536; 2 Page on Wills (2 Ed.), sec. 1044, p. 1717; Riker v. Leo (N. Y.), 21 N.E. 719; Wetmore v. Parker, 52 N.Y. 450; In re Havsgaard's Estate (S. D.), 238 N.W. 130, 132; Doan v. Vestry of Parish of Ascension, 103 Md. 662, 64 A. 314, 7 L.R.A. (N.S.) 1119, 115 Am. St. Rep. 379; In re Little's Estate, 143 Minn. 298, 173 N.W. 659; In re. Henrikson's Est., 163 Minn. 176, 203 N.W. 778; Sherman v. Richmond Hose Co., 230 N.Y. 462, 130 N.E. 613; Danforth v. Oshkosh, 119 Wis. 262, 97 N.W. 258; Lane v. Eaton, 69 Minn. 141, 71 N.W. 1031, 38 L.R.A. 669, 65 Am. St. Rep. 559; Bird v. Merklee, 144 N.Y. 544, 39 N.E. 645, 27 L.R.A. 423; Starr v. Morningside College, 186 Iowa 790, 173 N.W. 231; Clarke v. Sisters of Society, etc., 82 Neb. 81, 117 N.W. 107; Conner v. Trinity Church (Md.), 99 A. 547.

While it is no doubt true that to prevent injustice or fraud, the court will create a trust, it strains language used here to dub it a trust. The recent liberalization of the constitution on this subject and the usual leniency of the court in construing charitable gifts, Zollman, 401, forces us to the conclusion that this devise will not be deemed a trust and hence not in contravention of the laws of the State of Mississippi.

McGehee, J., Roberds, J., dissenting. Griffith, J., concurs in this opinion.

OPINION

McGehee, J.

This appeal involves the construction of Sections 269 and 270 of the Constitution of 1890, as applied to certain devises of real estate and money, respectively, made to the Old Ladies' Home in Jackson, Mississippi. From a decree which held that both of such devises were void, the appeal here was taken by the Old Ladies' Home Association, a corporation under the laws of this State, duly chartered pursuant to the provisions of Chapter 25, Section 832 et seq., Code of 1892, for the purpose of establishing and maintaining a home for aged and destitute women in the State of Mississippi.

The cause originated in the court below on petition of the executor of the last will and...