Seaburn's Ex'r v. Seaburn
| Decision Date | 15 November 1859 |
| Citation | 56 Va. 423 |
| Court | Virginia Supreme Court |
| Parties | SEABURN'S ex'or v. SEABURN & als. |
1. The case of Gallego's ex'ors v. The Attorney General, 3 Leigh 450, recognized as law, except so far as it may have been modified by statute.
2. The act, Code, ch. 77, § 8, p. 362, does not authorize a devise of land for the use of a religious congregation, but only a conveyance by deed. [a1]
3. A fortiori the act does not authorize a bequest of money to be expended in building a church at a specified place, or for the support of the pastor of such church.
Nathaniel Seaburn, late of the county of Warwick, died without issue (having never been married), leaving a will bearing date the 7th day of January 1859, which, after providing for a sale of all his estate, real and personal, on certain terms therein mentioned, contains the following clauses:
" 3d. I desire my executor to see to and have built, a good and comfortable brick church, on the land attached to Mulberry island church, and to pay for the same out of money arising from the sales of my estate, and I desire that said church shall have a comfortable gallery for colored persons to be for the old side Baptist denomination.
4th. I desire that two thousand dollars of the money arising from the sale of my estate be invested in state stock or in some other good stock, and the interest or dividend on said stock to be applied to the support of a competent minister to preach to the church desired to be built, and the church in York county called Upper Grafton, provided the same minister will have pastoral charge and preach to both churches, for the pastoral support as aforesaid. Should both churches become able to have separate pastors, then I do not withhold said support.
5th. I desire my executor to have built, a good and comfortable brick church at the place called Upper Grafton, York county for the benefit of the old side Baptist denomination provided there is money enough after the church at Mulberry island is finished and the two thousand dollars invested in stock; said church to have a comfortable gallery for colored persons, and to be paid for out of any money left in the hands of my executor.
6th. Should there be any surplus money belonging to my estate after finishing both churches which I have desired to be built, and after investing the two thousand dollars in stock as above desired, it is my desire that said surplus be invested in the same manner as the two thousand dollars, in state stock or some other good stock, and the interest or dividend on said surplus to be applied as the interest or dividend on the $2,000, that is for the payment of a minister to preach for the churches which I have desired to be built. But should the said interest or dividend amount to more than a fair compensation for the support of a preacher for said church, then it is my desire that such overplus of dividend be applied to keeping such churches in order."
In the 7th and last clause, Stafford G. Cooke the appellant is appointed executor. A codicil is annexed to the will bearing the same date, and in these words:
" It is my wish that all moneys which I may have due me by bond, note, open account or otherwise, be applied in the same way and for the same purposes, that is to say, for the two churches, as the money which will arise from the sale of both my real and personal estate."
The will and codicil were admitted to probate, and the executor having qualified, was proceeding to execute the same, when the appellees, claiming to be heirs at law and next of kin of the testator, instituted a suit in chancery against the executor, for the purpose of having the devises and bequests made, or attempted to be made, by the 3d, 4th, 5th and 6th clauses of the will before recited, and by the codicil, declared null and void, and the estate divided and distributed among them. The executor demurred to the bill, and also filed an answer, to which there was no replication. And the cause coming on to be heard on the bill, demurrer and answer, the Circuit court overruled the demurrer, declared the said devises and bequests " wholly inoperative and void, on account of the indefiniteness and uncertainty of the same and of the beneficiaries" thereof, ordered the executor to render an account of the estate and his administration thereof before a commissioner of the court, and directed the commissioner to ascertain who was entitled to the estate as heirs and distributees of the testator, and in whet proportions they were so entitled, and to make report to the court.
From the said decree the executor obtained an appeal to this court.
Bowden and Cosnahan, for the appellant.
Mallory and Seawell, for the appellees.
After stating the case, he proceeded as follows:
In the case of Gallego's ex'ors v. The Attorney General, 3 Leigh 450, it was held, that the English doctrine in regard to indefinite charities does not prevail in this state; that it was founded, mainly if not entirely, upon the statute 43 Elizabeth, called the statute of charitable uses, which, if it ever was in force here, was repealed by the general repealing act of 1792; that charitable bequests stand on the same footing with us as all other bequests, and will alike be sustained or rejected by courts of equity; and that a bequest of money to be applied to the erection and support of a Roman Catholic chapel in Richmond, and a devise of a lot in said city to trustees in fee, upon trust to permit all and every person belonging to the Roman Catholic church, as members thereof, or professing that religion, and residing in Richmond at the time of the testator's death, to build a church on the lot for the use of themselves and all others of that religion who may hereafter reside in said city; were uncertain as to the beneficiaries, and therefore void.
The authority of that case, although some of the positions therein held have been impugned elsewhere, and although the case of The Baptist Association v. Hart's ex'ors, 4 Wheat. 1, therein much relied on, has been supposed to have been founded on a misconception of the English law (Vidal, & c. v. Girard's ex'ors, 2 How. U.S.R. 127), is still firm and stable in this state, except so far as it may have been since modified by statute; having been repeatedly recognized by this court, and expressly affirmed in the recent case of Brooke, & c. v. Shacklett, 13 Gratt. 301.
The devises and bequests contained in the will and codicil of Nathaniel Seaburn, now under consideration, would undoubtedly be void for uncertainty, according to the principles of the case of Gallego's ex'ors v. The Attorney General, before cited. Indeed, this seems not to have been controverted in the argument.
But the counsel for the appellant contended that they are valid devises and bequests, under the Code, ch. 77, § 8, p. 362; which is as follows:
" Every conveyance, devise or dedication shall be valid, which since the first day of January 1777 has been made, and every conveyance shall be valid which hereafter shall be made, of land for the use or benefit of any religious congregation as a place for public worship or as a burial place or a residence for a minister; and the land shall be held for such use or benefit and for such purpose and not otherwise."
On the other hand, the counsel for the appellees contended that the said devises and bequests are not valid, under the Code: First, because it does not authorize a devise, but only a conveyance, as contradistinguished from a devise; and, if it does, secondly, because it only authorizes land to be given for the purposes therein mentioned, and not money, though it be directed to be applied to the erection of a church on land held for such purposes; and much less, if it be directed to be applied to other purposes, as for instance, the support of a minister; and thirdly, because the devises and bequests in question are void for uncertainty, even though they might otherwise be valid under the Code.
Let us now consider the first of these objections taken by the counsel of the appellees, to wit, that a devise is not authorized by the above recited provision of the Code. If this objection be tenable, it will be unnecessary to consider the others, as this will conclude the case.
There can be no doubt but that the word " conveyance," in its comprehensive, and perhaps in its technical sense embraces a devise; and if it had been the only word used by the legislature in the provision in question to express the mode of transfer, it might, reasonably, have been construed in that sense; especially as it is used in that sense in other parts of the Code, as in ch. 116, § 1, 11. But we know that in common parlance,...
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