School Dist. 70, Red Willow County, v. Wood

• Court: Nebraska Supreme Court
• Writing for the Court: CARTER, J.
• Citation: School Dist. 70, Red Willow County, v. Wood, 13 N.W.2d 153, 144 Neb. 241 (Neb. 1944)
• Decision Date: 09 February 1944
• Docket Number: 31656.
• Parties: SCHOOL DIST. NO. 70, RED WILLOW COUNTY, v. WOOD et al.

13 N.W.2d 153

144 Neb. 241

SCHOOL DIST. NO. 70, RED WILLOW COUNTY, v. WOOD et al.

No. 31656.

Supreme Court of Nebraska

February 9, 1944

Syllabus by the Court.

1. A gift upon condition to a charitable corporation to further the purposes of such corporation is governed by the same principles of law as a bequest upon a charitable trust.

2. A charitable bequest to a school district is valid if it is made for the furtherance of one or more of its corporate purposes.

3. Where a charitable bequest to a school district for the construction of a new school building is impracticable because a new and adequate building had already been constructed after the death of the donor and prior to the happening of the event which made the bequest available, a court of equity in the exercise of the judicial cy pres doctrine may properly change the mode of effectuating the charitable bequest within the more general purpose of the donor where a more general purpose is disclosed with reasonable clearness.

4. Under such circumstances the directions of the donor relating to the details to be followed in accomplishing the purpose of the bequest, which are not intended as limitations, will be regarded as directory only where it is necessary to do so to carry out the dominant charitable purpose of the donor.

5. Where a definite charity is created, the failure of the particular mode by which its dominant purpose is to be effected will not defeat the charity, for a court of equity is required under such circumstances to substitute another mode when it can be done within the scope of the donor's dominant purpose.

6. Where an administrator is required to make a charitable gift available to the donee upon the happening of certain events and he fails to so do, such administrator is required to account to the donee for the principal and all interest profits, or other accumulations arising out of said fund. Such accumulations may be demanded in lieu of interest at the election of the donee.

7. A prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court.

8. A prayer for general relief in an equity action is sufficient to authorize any judgment to which the party is entitled under the pleadings and evidence, even though he may have misconstrued his remedy and prayed specially for lesser relief.

9. A will incorporated into a pleading as part of a cause of action controls allegations which it contradicts, or which are inconsistent therewith.

10. It is only where many persons have a common interest in property, and one of them, for the benefit of all, at his own cost and expense, takes legal action to protect it, that the court of equity in which the suit was brought may order the successful litigant reimbursed for costs, expenses and counsel fees from the common property in order that all benefited may share proportionately in that expense.

Butler James & Morrison, of McCook, for appellants.

Perry VanPelt & Marti and Arthur E. Perry, all of Lincoln, for School Dist. No. 70.

Cordeal, Colfer & Russell and L. H. Cheney, all of McCook, for Wood, Adm'r., and others.

Heard before SIMMONS, C. J., CARTER, CHAPPELL, and WENKE, JJ., and POLK and NUSS, District Judges.

CARTER, Justice.

This is a suit in equity brought by the plaintiff school district to compel the performance of a provision in the will of one John E. Hathorn by having the same construed to authorize the payment of $50,000 to plaintiff in lieu of erecting a school building at a similar cost as directed by the will. From a decree ordering the administrator to pay $51,633.35 with interest at 6 per cent. per annum to the plaintiff, the defendants appeal. The plaintiff has cross-appealed on the theory that the trial court erred in not awarding the $50,000 and all accumulations thereto to the plaintiff.

The record discloses that John E. Hathorn died in 1920, leaving a will which was admitted to probate and which contains the following provision: "After my wife and myself are both dead and the legacies have been paid as above directed it is my desire that when my property shall have reached the sum of ($50,000) fifty thousand dollars (and School Dist. No. (70) Seventy of which Bartley Red Willow Co. is a part.) shall have purchased not less than one full block of land, then my administrator with the advise and direction of his advisory board shall cause to be erected upon said lot a modern up to date fifty thousand dollar school house all complete which will be the gift or legacy to Dist. No. 70 Bartley, Red Willow Co. Nebraska by Dr. J. E. Hathorn and wife Ella D Hathorn, and such inscription if any may be placed on the building as the administrator & advisory board think advisable."

The record further shows that the deceased was a highly esteemed citizen of Bartley, Nebraska. He had engaged in the practice of medicine in that community for many years, had served for years as a member of the school board and as president of the local bank. It appears that Ella D. Hathorn, the wife of the deceased, died in 1936, that the property of the deceased reached a valuation of $50,000 at or prior to 1938, and that the school district had purchased more than one block of ground on and prior to November 26, 1915, and had purchased an additional half block in July, 1923.

The record further shows that the plaintiff school district was in need of a new school building in 1923, that the old building was unfit to carry on the school work of the district, and that the district was threatened with the loss of its accredited rating with the state university unless new building facilities were provided. The evidence shows that bonds were voted in the amount of $58,500 to erect a new school building and that it was constructed in 1924. It is further shown that the public had a general knowledge of the provisions of the Hathorn will and there is some evidence to the effect that the construction of the new school building was considered by the school board to be in accordance with the provisions of the will. The administrator of the estate, the defendant Wood, was the president of the local bank and had knowledge of all the matters herein recited. An advisory board was appointed in the will, consisting of the directors of the Bank of Bartley and the members of the School Board of District No. 70, the plaintiff herein. On June 26, 1942, the advisory board ratified the construction of the new school building as being in accordance with the will of John E. Hathorn, and demanded that the defendant Wood, as administrator, turn over the sum of $50,000 as by the will provided. It is clear from the evidence that the school building constructed in 1924 adequately serves the school district and that there is no need for another building. The defendant Wood stands ready to comply with a final order of the court with respect to said funds. The question to be determined is whether the plaintiff district is entitled to any funds by virtue of the will and the conditions as they existed when the suit was filed and, if so, in what amount. Defendants contend that the provisions of the will have lapsed and that said funds have become a part of the residuary estate of the deceased.

Defendants contend that the trial court was in error in holding that the will created a charitable trust when it is in fact a gift upon condition. The contention of the defendants appears to be supported by the holdings of this court. Allebach v. City of Friend, 118 Neb. 781, 226 N.W. 440; Hobbs v. Board of Education, 126 Neb. 416, 253 N.W. 627. But this fact in itself can avail the defendants nothing, for this court has held, and we think the authorities hold generally, that such a gift to a charitable corporation is equivalent to a bequest upon a charitable trust and will ordinarily be governed by the same rules. Rohlff v. German Old People's Home, Neb. 10 N.W.2d 686. We again reiterate that a gift upon condition to a charitable corporation to further the purposes of such corporation is governed by the same principles of law as a bequest upon a charitable trust. This is so because the want of the trust relation in the former is overcome by the fact that the purpose of the charitable corporation coincides with the charitable purpose of the gift.

A charitable bequest to a school district is valid if it is made for the furtherance of one or more of its corporate purposes. The furtherance of education is held generally to be a charitable purpose in this country, unaffected by the fact that education is largely under public control and supported generally by taxation. The bequest in the instant case was clearly for a public purpose and properly made to the school district for the accomplishment of one of its corporate purposes.

The appellants in the present case are the heirs at law of the donor. The will provided that each should receive a specific legacy of $500. The legacies have been paid and the receipts of each of the legatees appear in the record. It is the contention of appellants that where a gift is made by will to a governmental body to be used for a specific charitable purpose, the accomplishment of that purpose is a condition subsequent and upon the failure of which the gift reverts. We believe this to be a correct statement of the law. Marble v City of Tecumseh, 103 Neb. 625, 173 N.W. 581; Allebach v. City of Friend, supra. Appellants further contend that where a bequest is made to construct a building for a designated charitable institution it is a gift for a particular purpose and does not indicate a general charitable intent and where, as here alleged, the particular purpose contemplated is impossible of fulfillment, or has already been carried out, the doctrine of cy...