Pennoyer v. Wadhams

• Decision Date: 06 January 1891
• Citation: Pennoyer v. Wadhams, 20 Or. 274, 25 P. 720 (Or. 1891)
• Parties: PENNOYER et al. v. WADHAMS et al.
• Court: Oregon Supreme Court

25 P. 720

20 Or. 274

PENNOYER et al. v. WADHAMS et al.

Supreme Court of Oregon

January 6, 1891

Appeal from circuit court, Clatsop county; FRANK J. TAYLOR, Judge.

This is a suit in equity to foreclose a mortgage of $4,000, executed by Truman P. Powers in his life-time, upon a tract of land containing 80 acres adjoining Upper Astoria, and six blocks in Upper Astoria.The complaint is in the usual form.The defendant Wadhams answers separately, alleging that he is the holder in trust of the legal title to a certain portion of the real estate described in the mortgage for the use and benefit of the First Presbyterian Church of Upper Astoria, in accordance with the last will and testament of said Powers and asking that defendant Leinenweber's property be first sold.The defendantMary H. Leinenweber also files an answer in which she denies the allegations of Wadhams' answer and alleges that she is the sole heir and residuary legatee of Powers.Upon the issues thus made between defendants Wadhams and Leinenweber the cause was tried, which resulted in a decree in favor of defendant Leinenweber, from which decree Wadhams brings this appeal.

(Syllabus by the Court.)

A testator devised certain real estate to trustees for the purpose of having erected on a designated portion thereof a Presbyterian Church, to be known as the 'First Presbyterian Church of Upper Astoria,' for the use of the society of said church, and of a parsonage for the use of the pastor in charge thereof; for the purpose of carrying out this trust, authorized and empowered the trustees to sell any and all of the land devised, except that portion on which the church and parsonage were to be built, and directed that the proceeds of such sale be applied in the erection and furnishing of said church and parsonage, and, after such church and parsonage should be erected and furnished, the trust to wholly cease and determine in trustees as to said church, parsonage, and furniture as well as to any unsold property, or unexpended proceeds of sales, and to vest in and be carried on by, the board of trustees of the First Presbyterian Church of Upper Astoria and their successors in office, in trust 'for the purpose of advancing and propagating the Christian religion, through the agency of the Presbyterian Church. 'Held a charitable trust valid against the testator's heirs, although there was no Presbyterian Church organization or society in Upper Astoria, at time of testator's death.

H.B. Nicholas, for appellant.

Raleigh Stott, for respondent.

BEAN J., (after stating the facts as above.)

On March 12, 1883, Truman P. Powers executed his last will and testament, which, among other devises and bequests, contained the following: "Sixth.I give, devise, and bequeath to Christian Leinenweber, of the town of Upper Astoria, Clatsop county, Oregon, and William Wadhams, of the city of Portland, Multnomah county, Oregon, and the survivor of them, unless the same shall be conveyed by me prior to my death, blocks Nos. 57, 49, 85, and 99, and lots Nos. 3 and 4 in block No 37, in the town of Upper Astoria, Clatsop county, Oregon, as laid out and recorded by John Adair, and 20 acres of land in a square tract out of the N.E. corner of the S.E. quarter of John Adair's donation land claim, in trust for the sole use, benefit, and behoof of the First Presbyterian Church of the town of Upper Astoria, Clatsop county, Oregon, as laid out and recorded by John Adair, and which said lots, blocks, and tract of land are devised and bequeathed for the sole and express purpose of having erected and built on said lots 3 and 4 in said block 37, in said town of Upper Astoria, a Presbyterian Church, to be known and designated as the 'First Presbyterian Church of the Town of Upper Astoria,' for the use of the society of said First Presbyterian Church, and of a parsonage for the sole use and benefit of the pastor in charge of said First Presbyterian Church; and to the furnishing said church and parsonage with suitable, neat, and substantial furniture, and for the purpose of fulfilling and carrying out said trust, I hereby direct, authorize, and empower my said executors, Christian Leinenweber and William Wadhams, and the survivor of them, without any order of the probate court of Clatsop county, Oregon, to sell any and all said lots or tracts of land, except lots 3 and 4 in block 37, for such sums of money as shall to them seem just and right, and to give to the purchaser or purchasers of said lots or tracts of land, or any part or portion thereof, all necessary bonds, deeds, and conveyances therefor, and all sums of money, so realized by my executors, and the survivor of them, shall be loaned by them on good real-estate security until four years from the date of my decease, and at which said date said money shall be applied by my said executors to the erection of a Presbyterian Church, to be known and designated as the 'First Presbyterian Church of the Town of Upper Astoria,' for the use of the society of the said First Presbyterian Church, and of the parsonage, for the sole use of the pastor in charge of said First Presbyterian Church, to the furnishing said church and parsonage with suitable furniture; and, after the erecting and furnishing of said church and parsonage, said trust shall wholly cease and determine in my said executors, and the survivors of them, and said trust shall thereupon vest in, and be carried on by, the board of trustees of said First Presbyterian Church of the town of Upper Astoria, and by their successors in office; and if, after the said church and parsonage shall be erected and furnished, any money shall be left from the proceeds of the sale of tracts and lots of land, or of any portion thereof, or if any of said lots or tracts of land shall remain unsold, then, and in that event, said trust shall cease and determine as to said money and unsold property, as well as to said church and parsonage, and church and parsonage furniture, and to said lots 3 and 4 in said block 37, on which said church and parsonage shall be built, in my said executors, and the survivor of them, and shall vest and remain in, and be carried on by, the board of trustees of said First Presbyterian Church of Upper Astoria, Clatsop county, Oregon, and their successors in office, in trust to the said board of trustees, and their successors in office, for the purpose of advancing and propagating the Christian religion through the agency of the Presbyterian Church; and I desire and direct that my executorChristian Leinenweber should be elected and added to said board of trustees of said First Presbyterian Church of Upper Astoria for the term of his natural life, or during his pleasure, to enable him the better to assist in the carrying out of my wishes as set out in this bequest.This bequest is for the benefit of my grandchildren, to interest them in working for, and supporting and believing in, the church and gospel of our Lord and Saviour Jesus Christ, to whom with the Father and the Holy Ghost be glory and honor, dominion and power, world without end, amen; and to enable all in the vicinity of Upper Astoria to enjoy the privileges of that glorious gospel, which to hear aright is everlasting life.Seventh.All the rest, residue, and remainder of my estate, both real, personal, and mixed, of which I shall die seised and possessed after the payment of all my just debts and all the expenses of my last sickness and burial, I give, devise, and bequeath unto my adopted and beloved daughter Mary Leinenweber, in fee-simple to the said Mary Leinenweber."

At the time of Power's death in July, 1883, there was no First Presbyterian Church, or any Presbyterian Church organization association, or society in Upper Astoria, nor has any such church been organized or established since his death.The contention of respondent is that the devise to Wadhams and Leinenweber was a private trust, and not a public charity, and, there being no certain specified beneficiaries in existence at the time of the testator's death, is void.The requisites of a valid private trust, and one for a charitable use, are materially different.In the former there must not only be a certain trustee who holds the legal title, but a certain specified cestui que trust, clearly identified, or made capable of identification, by the terms of the instrument creating the trust; while it is an essential feature of the latter that the beneficiaries are uncertain, a class of persons described in some general language, often fluctuating, changing in their individual members, and partaking of a quasi public character.Indeed, it is said a public charity begins where uncertainty in the recipient begins.2 Pom.Eq.Jur. § 1018;2 Perry, Trusts, § 687;Raley v. Umatilla Co.,15 Or. 172, 13 P. 890.When the object and purposes for which a trust is intended to be created is once determined to be charitable, very different rules from those that are applied in administering and establishing private trusts will be applied in order to give effect to the intention of the donor, and establish the charity.In a private trust, if the cestuis que trustent are so uncertain, or are so incapable of taking, that they cannot be identified, or cannot, by legal or equitable proceedings, claim the benefit conferred upon them, the gift will fail, and revert to the donor, or his heirs; but, if a gift is made for a public charitable purpose, it is immaterial that the cestuis que trustent are indefinite or uncertain, or that the trustee is uncertain or incapable of taking.Courts of equity look with favor upon all such trusts, and endeavor to carry them into effect, if it can be done consistently with the rules of law.With regard to the origin and extent of the equitable...