Pickering v. Shotwell

• Decision Date: 06 February 1848
• Citation: 10 Pa. 23
• Parties: PICKERING <I>v.</I> SHOTWELL.
• Court: Pennsylvania Supreme Court

Page 23

10 Pa. 23

PICKERING v. SHOTWELL.

Supreme Court of Pennsylvania.

January 24, 1848.

February 6, 1848.

Jan. 24.

APPEAL from the Common Pleas of Philadelphia.

H. M. Phillips and Randall, for appellants.—The devise is void for uncertainty who are to be the trustees, and in the objects of the charity. Where the objects are so uncertain that the estate cannot vest in them, it is essential there should be trustees who can take the legal estate and manage the charity: 3 Raw. 170. The trustee here is an unincorporated body incapable of succession: Co. Litt. 3 a; 10 Rep. 26; Touch. 237; Perk. § 510; 9 Cranch, 43; 9 Wheat. 455-64; 2 John. Ch. 320; 9 John. 73; Green v. Dennis, 6 Conn. 292; 8 John. 385. This point was expressly ruled in 1 Penna. 49, where the devise was to an officiating priest and his successors, and still more emphatically in Kirk v. King, 3 Barr, 436, where the grant was to the employers of a school. Witman v. Lex has a dictum the other way; but, in 1 W. 218, and Zimmerman v. Anders, 6 W. & S. 218, there were trustees. Were the devise to the meeting for their own benefit, perhaps this would be immaterial; but they are to be trustees, and as such amenable to the court. How can this be when the society is voluntary, unincorporated, and the members perpetually shifting? This was recognised in 4 Wheat. 1, which point was untouched by 2 Howard, 127. In Magill v. Brown, the meeting took beneficially. The devise is then clearly void at law, Hob. 136, nor can the court impart to the trustees named the power to take: clearly they cannot be compelled to accept it; nor is it possible for the court to supervise the execution, or call such a body to account.

But it will be said that the court never suffers the trust to fail for want of a trustee. That may be true where the object is one for which a discretionary power of designation is not required, but where that is the case the court has invariably refused to interfere in this state. That is the cy pres doctrine, which has been said to be too grossly revolting to the public sense of justice to be tolerated: 1 W. 226. Are then the trusts here too vague? The answer is found in the question, who can apply to have them enforced? What are the good books to be, religious or scientific? This view was sustained in Browne v. Yeale, cited in 7 Ves. 50, 19 Ib. 399, and the objection in 10 Ves. 522, was grounded on the cy pres doctrine. Again, who are the poor? A devise to the poorest relations was held void for uncertainty: 1 Pow. Dev. 365; and when to the poor generally administered cy pres: Attorney General v. Matthews, 2 Lev. 167; Finch Ch. R. 245. That rule being excluded the devise was void: 6 Har. & John. 1; 5 Ib. 392; 8 S. & R. 43. This uncertainty is rendered still more uncertain by the description of their residence. How is it possible for this court to administer a charity for the poor generally in the back part of Pennsylvania? If then this part of the charity fails, the other goes with it: 6 Ves. 410; 1 Ib. 475; 9 Ves. 399; Amb. 614.

The alternative charity is equally vague; if to an institution already existing, out of the hundreds of schools, which shall receive it? Is it for the erection of an edifice? Of what character will the school be, and who are to be educated there? These must be determined by the court, for the trustee named is incompetent. And if the court determine, must they not do so on the cy pres rule?

The doctrine in 10 Ves. 540, is very applicable here. As the trust must be under the control of the court, it must be of such a nature that the administration may be reviewed by the court, and if the trustee dies that the court may carry it on. If it could not be reformed and duly administered, it follows that a trust can exist over which the court cannot exercise control: which cannot be.

Williams, contrà.—The intent being apparent, it lies on the defendants to point out the rule of law which renders the devise void: 3 Pet. 116. It is objected there are no trustees competent to take, but that is an immaterial fact: Duke, 476-8, n.; 1 W. Bl. 90; 1 Ca. in Ch. 134; Amb. 422. In all these cases there was no trustee, and the objects were incapable of taking directly. Sometimes a purpose only was designated. The American cases are equally strong: 2 Pet. 566; 9 Cranch, 296-332; 3 Pet. 99. In 6 S. & R. 211, a grant to the inhabitants of an unincorporated town was sustained. McGirr v. Aaron, 1 Penna. 49, was a devise to a priest and his successors, which was held to vest in the congregation. In Witman v. Lex, 17 S. & R. 92, the present objection was held immaterial if a discretion was vested anywhere. Here it is in the meeting: That is a quasi corporation having organization and officers — its members are ascertainable at any time. In Magill v. Brown, in the Circuit Court, the same uncertainty existed and was deemed immaterial, and that and Witman v. Lex were sustained in 2 How. 127.

The objects are not uncertain, because there is a certain body who are to select them. Such bequests have been uniformly sustained: Finch, 245; 2 Lev. 167; Amb. 524; Ib. 422; Chit. Eq. Dig. 209; 1 Vern. 248; 1 Meriv. 55; Att'y. Gen. v. City of London, 1 U. S. 243; 16 Ves. 206; 2 M. & Keen, 59.

M'Girr v. Aaron, 1 Penna. 49, is erroneously stated by the appellants, and Kirk v. King was decided on an abandonment of a temporary grant. The cases from New York and Connecticut were in courts of law, there being no statute or custom to sustain charitable uses: McNullege v. Galbraith, and the citation in Pow. on Dev. were not charities; the latter is Webb's case, 1 Roll. Abr.

In the Maryland cases no legal distinction was recognised between charitable and other bequests. Browne v. Yeale was disapproved in 9 Ves. 399; 10 Ib. 534-40; and in fact overruled, 10 Ib. 22. The charities enumerated in Boyle on Charities, and by Baldwin, J., in Magill v. Brown, 41-55, clearly include the present case.

This is sufficient to support the devise, but the alternative object is equally entitled to protection. Free-schools are one of the objects enumerated in the statute — and in the act of 1730-1, these religious societies are expressly authorized to receive grants of lands for erecting schools.

Feb. 6. GIBSON, C. J.

The complainants filed their bill to have certain papers and property delivered to them, under the will of Nathan Sheppard, who, having given certain...