Townsend
J. Ewbank, C. J., not participating.
OPINION
Townsend, J.
One
Peter G. Flinn attempted by deed and by will to create a
charitable trust. The trial court held the trust void for
uncertainty. The facts were found specially, with conclusions
and judgment in favor of the heirs and next of kin. From this
judgment the trustees appeal. The questions arise on
exceptions to the conclusions of law.
In
July, 1893, testator married one Elizabeth Williams. At that
time he was a
widower, having no children by the previous marriage.
Elizabeth Williams, a widow, had two children by a previous
marriage. Testator was then about sixty-eight years old, and
Elizabeth Williams was about fifty-seven years old. They
entered into an antenuptial contract, settling the rights
which each was to have in the other's estate. They lived
together as husband and wife until the death of testator on
January 15, 1904. No children were born of their marriage. In
September, 1902, Peter G. Flinn and his wife executed the
trust deed in question. In November, 1903, Peter G. Flinn
executed the will in question. Elizabeth Flinn, the wife,
died in May, 1915.
The
trust deed previously referred to is as follows:
"This Indenture Witnesseth, That Peter G. Flinn and
Elizabeth K. Flinn, his wife, of Grant County, and State of
Indiana, convey and warrant to James D. Conner, Jr. in trust
for Elizabeth K. Flinn during her natural life, and at her
decease to other beneficiaries as herein stated, of Wabash
County, State of Indiana, for the sum of One Dollar, the
receipt of which is hereby acknowledged, the following real
estate in Grant County, State of Indiana, to-wit: Lots one
(1) and Two (2) in Block Twenty-three (23) in the Original
plat of the town, now City of Marion.
"Said real estate is conveyed subject to the use of same by grantor, Peter G. Flinn, during his
natural life, and for the following purposes and uses,
to-wit: My wife, Elizabeth K. Flinn, shall have possession of
and the use and the rents and profits of same during her
natural life and we hereby authorize and direct said trustee
to turn over to the said Elizabeth K. Flinn, said property
and the rents and profits of the same during her natural
life. At the decease of said Elizabeth K. Flinn, said trustee
shall take charge and control of said real estate and manage
and rent and lease same so as to make same as productive as
he can and shall perpetually devote the rents and profits of
same and pay out of the same as follows:
"First: To the payment of expenses of managing the same
and keeping up the repairs and improvements and paying the
taxes and insurance and the assessments on same, which he
shall have full power and authority to make and pay for.
"Second: To the payment of the sum or such sums of money
to such of the brothers and sisters of the said Peter G.
Flinn or in the event of their death to such of their living
children as in his judgment needs support or should receive
the benefit of said income. And we give and grant unto said
trustee full power and authority to exercise his judgment as
to who shall receive the benefit of said income and full
power and authority to select said beneficiaries and his
selection and payment shall be conclusive and binding on
every one and release him from all further liability as to
such payment and the amount so paid out.
"Third: Should there be anything remaining of said fund
after the above payments, our trustee is fully empowered to
devote the same to such charitable uses as he shall deem
advisable and in harmony with my will. And we give and grant
unto him full power and authority to do any and all things
necessary to carry out and consummate and make effective all
the provisions of the trust the same as we could do if living
and present. And we give and grant unto him full power and
authority to name his successor or successors and failing to
do so we authorize and direct the court under whose
jurisdiction the estate of the said Peter G. Flinn is settled
to name his successor or successors, who shall
have the same authority as herein granted to said trustee
named."
The
will, after making provisions for the wife similar to those
in the antenuptial contract, provides as follows:
"Item 4th: I did on the 23" day of September 1902
together with my wife, execute and deliver to James D.
Conner, Jr. of Wabash, Indiana, my Trustee, a deed for Lots
Numbers one and two in block twenty three (23) in the
original plat of the town, now city, of Marion, Indiana. As
to said deed aforesaid, it is my will, and I so will, devise
and bequeath that said deed shall be placed of record by my
said Trustee after my decease and shall have the full force
and effect of an executed and delivered deed. And it is
further my will, that my said Trustee and his successors in
said Trust, shall perpetually carry out and perform all the
terms and conditions and provisions of said Trust as provided
for and disclosed in said deed. And it is further my will,
that if for any reason the distribution of the income derived
from said real estate described in said deed, after the
decease of my said wife, shall be decreed by a court of
competent jurisdiction to be illegal or void under the
provisions of said deed, then in that event, it is my will,
and I so will, devise and bequeath that after the decease of
my said wife and in the event of said decree aforesaid, said
real estate and the rents derived from the same shall go into
the hands and control of my said Trustees named in this will
and their successors in office and be administered and
distributed the same as the balance of my estate in their
hands, under the terms of this will."
Items
five and six contain provisions as to the duties of the
executor, not important here to note.
Item
seven provides that, as soon as the estate has been
administered by his executor, and he shall have made his
final report, such executor "shall turn over and pay to
my Trustees, all the property and money of every kind and
description that shall then be in his hands or
under his control under the terms of this will and take the
receipt of said Trustees for the same, and file it with his
final report, which the Court having probate jurisdiction of
my estate shall accept as a full and complete delivery into
the proper hands and under the proper custody of my said
estate, and shall release my said Executor from all further
liability as such Executor."
Item
eight provides that, after the property has been turned over
to the trustees, the estate "shall be and remain in the
hands of my said Trustees and their successors in office
perpetually
and forever and that there shall never be any distribution of
my said estate except as herein provided, and that the same
shall be and remain and be perpetually administered as a
trust estate by my Trustees and their successors in office as
herein provided, for charitable purposes, under the name of
'The Peter G. Flinn Estate.'"
The
ninth item provides that, on certain real estate therein
described, the trustees "shall erect and construct and
pay for the same out of my estate in their hands and under
their control, a five or six story building--The same to be
constructed according to plans that may be prepared under my
advice and direction and found among my papers, otherwise to
be constructed according to plans selected by my said
Trustees. While the same is to be subject to the approval of
my said Trustees, I suggest that said building be constructed
with the following business rooms therein and for the
following purposes, to-wit: One store room 44 feet by 132
feet two stories high on the South side and the balance of
the space fronting upon the street and not necessary for use
as an entrance to the upper floors, be divided into two
business rooms and constructed one story high. And on top of
said three business rooms that the remaining part of said
building be constructed for hotel purposes or
for hotel and such other purposes as in the opinion of my
said Trustees will make the same most profitable."
The
tenth item is as follows: "It is my will, and I so will
devise and bequeath, that after the building provided for in
item 9th of this will is fully completed and paid for, and it
is my will that the same be paid for by my Trustees as fast
as they can, out of the income derived from the estate in
their hands over and above what is necessary for them to
retain with which to pay the taxes, Insurance, Assessments,
bequests and obligations provided for in this my will and
expenses of the same, that my said Trustees take an account
once each and every year of the annual income collected from
the property and funds in their hands for the previous year
and out of the same pay all the then obligations against my
estate and the estate in their hands as herein provided and
all the expenses of administration up to said time and that
the net annual income from said trust estate then found
remaining in their hands after paying said obligations
aforesaid, be divided into two equal parts; one part of which
shall become a part of the trust estate in the hands of my
said Trustees and be loaned out at interest or invested in
such manner as my said Trustees shall deem advisable and be
managed and controlled by my said Trustees the same as the
balance of my estate in their...
