Porcher v. Cappelmann

• Decision Date: 05 July 1938
• Docket Number: 14713.
• Citation: 198 S.E. 8,187 S.C. 491
• Parties: PORCHER v. CAPPELMANN.
• Court: South Carolina Supreme Court

198 S.E. 8

187 S.C. 491

PORCHER v. CAPPELMANN.

No. 14713.

Supreme Court of South Carolina

July 5, 1938

Appeal from Common Pleas Circuit Court of Richland County; C. C Featherstone, Judge.

Suit by Loretta M. Porcher against F. William Cappelmann, as executor and trustee under the will of Elvira B. Wright, deceased, to have a trust created by will of deceased declared void and to require defendant to pay to the plaintiff as sole heir at law property devised to the defendant as trustee. From an adverse decree, plaintiff appeals.

Affirmed.

Judge Featherstone's decree, requested to be reported, follows:

This matter came on to be heard before me in open Court upon a demurrer interposed by the defendant, the grounds of the demurrer being that the complaint failed to state a cause of action. The principal, and in fact the controlling question in the case, turns upon the construction of a certain trust clause in the will of Elvira B. Wright, a resident of Richland County, South Carolina, who died on May 8, 1936 leaving of force and effect her will dated the 14th day of March, 1933.

The plaintiff is a sister and the sole heir-at-law of the testatrix and the object of the suit is to have the trust created by the said will declared void and to require the defendant to pay over to the plaintiff as the sole heir-at-law the property which the said testatrix devised to the defendant as trustee. The plaintiff's claim is that the trust in question is void because it is too indefinite uncertain, unlimited and incomplete to be effective as a disposition of property by the testatrix in any respect, and that hence all the property which the testatrix intended to devise to the defendant as trustee should be vested in the plaintiff as the sole heir-at-law. The entire will is attached to the complaint as an exhibit and is made a part of the complaint.

The clause in the will creating the trust in question is as follows: "Item 10. All the rest, residue and remainder of my estate, real, personal or mixed of whatsoever kind and wheresoever situated, which I may now own or to which I may in any manner hereafter become entitled, I give, devise and bequeath, after the payment of my debts, funeral expenses expenses of my last illness, expenses of administering my estate and the bequests provided above, to said F. William Cappelmann, as trustee, however, to be used and expended by him in such manner as he may deem wise in assistance in the City of Columbia, S. C., to crippled children, in the provision of medical and surgical attention to such children, purchase of medicines, braces or other appliances or any other article to assist and benefit said children, said work for crippled children to be conducted in the City of Columbia, S. C., but assistance to be rendered not to be limited to children of the City of Columbia, said trustee to be authorized to make such plans and use and pay for such assistance in this work as he may deem wise, and he being authorized if he deems wise to call to his assistance in this enterprise any agency or agencies, individual or corporate, that he may consider fit and proper to promote this work and to pay for the same out of this fund, all subject to his discretion. Said trustee is authorized hereby to invest and reinvest the funds given for this purpose to expend for this purpose interest and part or all of principal as he may deem wise, to make sale at public or private sale at such time and place as he may deem wise of any asset of said residue of my estate and to execute and deliver any necessary deed or bill of sale or other transfer of the same. Said trustee in the handling and promotion of this enterprise is to do the same as a memorial to my grandfather, Charles H. Manson."

The first question to be determined: Is the trust created by the will a charitable one as distinguished from a private trust? The distinction is important because trusts for public charitable purposes are upheld under circumstances under which private trusts would fail. See Shields, Attorney General, v. Jolly, 1 Rich. Eq. 99, 42 Am.Dec. 349. The most important distinction between a charitable and a private trust is that in the time of duration allowed and the degree of definiteness required.

A very clear statement of the essential difference between the two kinds of trusts is given in 10 Amer.Jur., Title, Charities, Section 6, which reads as follows: "The requisites of a valid private trust and of one for a charitable use are materially different. In the former there must be not only 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. The most important distinction, however, between charities and other trusts is that in the time of duration allowed and the degree of definiteness required. Trusts for public charitable purposes, being for objects of permanent interest and benefit to the public, and perhaps being perpetual in their duration, are upheld under circumstances under which private trusts would fail."

That the present trust is for a public charity seems scarcely open to serious argument. A trust for the prevention, cure or treatment of disease, or otherwise for the promotion of health is charitable. 10 Amer.Jur., title Charities, Sec. 71.

Some suggestion was made during the argument that the trust was not charitable because under the terms of the trust clause the trustee could render assistance to children who had independent means as well as to those who are poor. Presumably the trustee would give the first consideration to those who are without financial means to secure the relief or aid contemplated by the testatrix. If those most in need are taken care of, what matters it if those who are able to pay should also share in the testatrix's bounty? Furthermore, a trust for the prevention of disease or otherwise for the promotion of health is charitable even if the carrying out of the trust benefits the rich as well as the poor. A trust of this character is none the less charitable in the eye of the law because incidentally it benefits the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly. 10 Amer.Jur., title Charities, Sec. 52.

The plaintiff contends that the trust attempted to be established by the will is so indefinite, uncertain, incomplete and unlimited as to be impossible of enforcement by any Court and hence void. With this contention I do not agree. The main purpose of the trust is definite and certain; the clear purpose is to provide a means for rendering assistance to crippled children, the general nature of the assistance being definitely set forth by the testatrix. The details of carrying out the trust are to some extent left to the discretion of the trustee; this is usual in most charitable trusts created by will because the testator is attempting to provide for contingencies which will arise after his own death, and necessarily some discretion and power must be left to his trustee or trustees.

Even if the item of the will in question did not specifically vest certain discretionary powers in the trustee, nevertheless he would have the implied power and duty to formulate a plan for carrying out the trust, the only limitation on such power being that the plan must not deviate from the main purpose of the trust. It was expressly so held by our Court in Dye v. Beaver Creek Church, 48 S.C. 444, 26 S.E. 717, 59 Am.St.Rep. 724, a leading case in the United States upon this subject. In that case the devise was to Beaver Creek Church (an unincorporated association) "for poor children, for their tuition". The contention was there made that the devise was so vague, indefinite and uncertain as to the objects and beneficiaries of the use, that it was void. These objections were held to be unfounded and the trust upheld, the Court saying (48 S.C. 444, at page 457, 26 S.E. 717, at page 722): "We shall not attempt to review the many and conflicting authorities bearing upon the question under consideration, but state the following principles deducible from them: First. If a trustee is appointed by the testator, and the will shows that the object of the devise, though expressed in general terms, is for a charitable use, the trust will be declared valid. In such a case the duty devolves upon the trustee of devising a scheme for carrying the trust into effect. Second. If a trustee is not appointed by the testator, and the will does not declare the manner in which the devise is to be made effectual, equity will not administer the trust. The reason a trustee is allowed to enforce a trust, the object of which is only expressed in general terms, is that in exercising his discretion he carries out the intention of the testator. But, when there is no trustee appointed to exercise this discretion in devising a scheme for the execution of the trust, the court of equity can look alone to the will, and, if it does not show the intention of the testator, parol testimony is inadmissible, and the trust must fail."

It will be observed that the devise in the Dye Case, supra, was in the most general terms, that is "for poor children, for their tuition", and yet the Court concluded the trust was valid and that the power of selecting the beneficiaries as...