President and Fellows of Harvard College v. Jewett

• Citation: 11 F.2d 119
• Decision Date: 16 May 1925
• Docket Number: 4135,4140.,No. 4119,4119
• Parties: PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. JEWETT et al. FASSE et al. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE et al. JEWETT v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

11 F.2d 119 (1925)

PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. JEWETT et al. FASSE et al. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE et al.

JEWETT v. SAME.

Nos. 4119, 4135, 4140.

Circuit Court of Appeals, Sixth Circuit.

May 16, 1925.

COPYRIGHT MATERIAL OMITTED

Edward Colston, of Cincinnati, Ohio, for President and Fellows of Harvard College.

Lester A. Jaffe, of Cincinnati, Ohio, for Charles E. Jewett.

Oliver B. Jones, of Cincinnati, Ohio, for Fasse and others.

Guy W. Mallon, of Cincinnati, Ohio, for John B. Jewett and others.

Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

This is an Ohio will, and must be construed in accordance with the statutes and the decisions of the court of last resort of that state in reference to wills. Section 10580, General Code of Ohio, provides that every will shall be construed to convey all the estate of the devisor in lands, tenement, and hereditament which he could lawfully devise unless it shall clearly appear by the will that the devisor intended a lesser estate. It is also a settled rule in Ohio that every one who makes a will is presumed not to have intended to die intestate as to any of his property. In the construction of wills, the intent of the testator, when not in violation of a statute or public policy, must control. When possible, this intent must be ascertained from the will itself. It is only where that intent is doubtful or uncertain that recourse may be had to collateral aids to a clear interpretation. Linton v. Laycock, 33 Ohio St. 128; Black v. Hill, 32 Ohio St. 313; Worman v. Teagarden, 2 Ohio St. 380.

The language of item 4 is plain, clear, and unambiguous. It is not in conflict with, or repugnant to, any other part or provision of the will. These words must be given their plain, usual, and ordinary meaning. Black v. Hill, supra; Robbins v. Smith, 73 N. E. 1051, 72 Ohio St. 1, affirming 5 Ohio Cir. Ct. Rep. (N. S.) 545; Painter v. Painter, 18 Ohio St. 247.

It clearly appears from the plain and unmistakable language of item 4 that Phebe Ferris intended to devise and did devise to the Peabody Museum all the estate in the lands described therein that she could lawfully devise, to be kept and held in trust by that corporation in perpetuity "for scientific purposes for the preservation of the remains and relies of said cemetery." Hopkins v. Grimshaw, 17 S. Ct. 401, 165 U. S. 342, 357, 41 L. Ed. 739; Long v. Union Trust Co. (D. C.) 272 F. 699, 703, 704; Washington Loan & Trust Co. v. Hammond, 278 F. 569, 574, 51 App. D. C. 260; Gilpin v. Williams, 17 Ohio St. 396; Williams v. Presbyterian Society, 1 Ohio St. 478.

The Peabody Museum accepted this devise subject to this perpetual trust, but, according to the averments of the bill of complaint, it did not keep and use the land devised for the declared purposes of the trust, but on the contrary exploited it "for relies and remains possessing scientific, historic, or ethnological value or interest and caused all such remains and relies to be removed therefrom and placed in its museum at Cambridge, Mass."

It is unnecessary to the disposition of this case to determine whether the Peabody Museum had or had not the right to remove these relics from the lands dedicated by this trust provision of the will to their preservation. If it had such right, then the purposes of the trust have been fully accomplished. If it had no such right, then by its own act it made the further performance of the trust impossible. In either event this land, as land, can no longer serve the purposes of the trust, and the title thereto necessarily reverts. Hopkins v. Grimshaw, supra.

For the same reason, it is now unnecessary to determine whether the President and Fellows of Harvard College acquired by merger with the Peabody Institute any title or interest in this land. If it did, it acquired no other or different title than the devisee took under item 4 of the will of Phebe Ferris. The partition suit in no way changed or affected this title. McBain v. McBain, 15 Ohio St. 337, 86 Am. Dec. 478; Tabler v. Wiseman, 2 Ohio St. 208, 211.

It is claimed, however, on the part of the appellant, that the removal of these remains and relies to its Museum at Cambridge, Mass., was in fulfillment of the wishes of the testatrix; that the preservation of these relies and remains entail and will continue to entail expenses essential to their care, management, and exhibition; that the trust, if it be a trust, is in the nature of a public charity; and that under the cy pres doctrine the land should be ordered sold and the proceeds thereof held by it as a trust fund for the payment of these expenses. While the trust here created was for educational purposes and as such is a public charitable trust, yet there is nothing in this will to indicate that the removal of these relies was in fulfillment of the wishes of the testatrix, or to suggest that she contemplated such removal. On the contrary the plain and positive language of the devise indicates a wholly different intent and purpose, and it is the intent and purpose of the testatrix, and not the intent and purpose of the trustee or the court, that must control. Colton v. Colton, 8 S. Ct. 1164, 127 U. S. 300, 309, 32 L. Ed. 138.

In the absence of ambiguity, the provision of item 4 must be interpreted as written. A court may not deprive this testatrix of her right to make a will by a construction wholly at variance with the plain import and the usual and ordinary meaning of the words used.

The cy pres doctrine can only be invoked in furtherance of the intent and purpose of the donor of the trust as near as may be, and not in disregard of the express terms of the grant or devise. Board of Education v. Town of Van Wert, 18 Ohio St. 221, 227, 98 Am. Dec. 114. It does not appear from the record that, through any natural or unavoidable change in conditions or circumstances, the land devised is not now as fit and suitable for the preservation of these remains and relies as it was at the time this will was written, but rather that, by reason of the action of the trustee in removing these relies, its further use for the purpose of the trust has become unnecessary and impracticable. This presents no case for the application of the cy pres doctrine. Le Clercq et al. v. Trustees of Gallipolis, 7 Ohio (pt. 1) 218; Board of Education v. Town of Van Wert, supra.

Item 3 of the will is also helpful in the construction of item 4, and should be read in connection therewith. Item 3 creates a trust fund for the erection, maintenance, and endowment of a free library of reference, to be located "in my said homestead." This homestead is in close proximity to the Ancient Cemetery. From these two provisions of her will it would appear...