Small's Estate, In re

• Court: Iowa Supreme Court
• Writing for the Court: BLISS; SMITH, C. J., and HAYS; SMITH; HAYS
• Citation: Small's Estate, In re, 58 N.W.2d 477, 244 Iowa 1209 (Iowa 1953)
• Decision Date: 05 May 1953
• Docket Number: No. 48183,48183
• Parties: In re SMALL'S ESTATE. SIAS et al. v. VAN ALYEA et al.

Page 477

58 N.W.2d 477

244 Iowa 1209

In re SMALL'S ESTATE SIAS et al. v. VAN ALYEA et al.

No. 48183.

Supreme Court of Iowa.

May 5, 1953.

Pike, Sias, Butler & Hoxie, Waterloo, for appellants.

Harris, Van Metre & Buckmaster, Waterloo, for appellees.

BLISS, Justice.

The first five applicants, as named in the title, are nieces, nephews, and a grand-nephew of, and sole beneficiaries under the will, of Florence L. Small, deceased's widow, who died April 20, 1949. The two applicants last named, are sisters, and are nieces of, and the sole heirs-at-law of, the deceased W. B. Small.

Dr. W. B. Small, of Waterloo, Iowa, executed his will on June 26, 1936. He died October 9, 1939, and his will was probated on October 23, 1939. He was survived by no relatives other than his widow and the two nieces above noted. Dr. Small nominated his friends John S. Tuthill, J. E. Johnson, Robert W. Waite, and Carleton Sias as executors of his will and directed that they be appointed trustees to carry out the terms of the will, with power in the remaining trustees to fill any vacancies among them, with approval of the court. Mr. Sias and Mr. Waite alone qualified as executors, as the other two nominees predeceased the testator. On the petition of the widow, Mr. Sias and Mr. Waite, the two last named were appointed by the court trustees of the will on November 12, 1942, and thereafter qualified and have since performed the duties of trustees. The estate having been fully administered, the final report of the executors was approved, and estate was closed, and the executors were discharged by order of the court on November 16, 1942.

The will of Dr. Small, after providing for some minor bequests, directed as follows: 'Item 5. All the rest, residue and remainder of my estate of every kind and nature, both real and personal, I give, bequeath and devise to the executors and trustees hereinafter named for the use and benefit of my wife, Florence L. Small, and I direct my said executors and trustees to pay to my said wife, * * *, the income from said property, and in the event that they should find that her needs require the payment of a part of the principal in addition to said income that they are permitted to pay her from my estate such additional amounts as in their opinion they consider just, proper and right.

'Item 6. Upon the death of my said wife, Florence L. Small, I direct that all property, both real and personal then remaining in my estate shall be held in trust as follows:

'I direct that my said trustees or their successors shall distribute annually or semi-annually as they may see fit, the income thereof to such persons and for such purposes as they may feel is directed by God the Father, Jesus Christ the Son, and Holy Spirit, and as they believe would be acceptable to me and meet my approval were I able to give it, they to be at liberty to choose and change the beneficiaries as said trustees may from time to time unanimously decide, it being my desire, intention and direction that said fund shall continue permanently and forever, and only the income thereof shall be used for the disbursements herein contemplated, and nothing herein shall prevent said trustees from allowing said income to accumulate in the event they do not find a suitable beneficiary as herein stated.

'By way of explanation it is my desire that any disbursements made under this paragraph shall be made to persons who believe in the fundamental principles of the Christian Religion and in the Bible and who are endeavoring to promulgate the same.'

The widow filed her written acceptance of the will, and during the approximately ten years that she survived Dr. Small, the trustees, as provided by the will paid her the income of the residuary estate and about $10,000 from the principal of the trust. At her death there remained in the control and possession of the trustees, real and personal property of an approximate value of $70,000.

On June 3, 1949, the petitioners filed their application for judgment and decree declaring the trust provision invalid, and alleged the following reasons therefor, in substance, paragraph seven:

(a) Incapability of enforcement by the court because the beneficiaries are impossible of ascertainment.

(b) The purposes to which the income shall be devoted are impossible of ascertainment by the court.

(c) The direction that the fund shall continue forever violates the rule against perpetuities.

(d) The direction to pay the income to such persons and purposes as the trustees believe would be acceptable to the testator is incapable of being performed and is invalid since neither the court nor the trustees can make a will for the testator.

(e) The trust cannot be performed and is therefore invalid since Item 6 does not specify how much of the income shall be devoted to 'purposes' and how much to 'persons'.

(f) Persons who believe in the fundamental principles of the Christian Religion and in the Bible are impossible of objective ascertainment since what one believes is hidden in his mind.

(g) The trust requires no charitable purpose to be served, and does not name an ascertainable class.

(h) It is impossible for the court or the trustees to determine what persons are promulgating the fundamental principles of the Christian Religion and of the Bible because of the lack of wide-spread agreement as to what constitutes such fundamental principles.

(i) Assuming that there is a definitely ascertainable class who believe in such fundamental principles, the giving of money to its members selected by the trustees without regard to their financial need nor to the purpose to which they will devote the money, does not constitute a charitable purpose nor promote the public welfare.

(j) Assuming that Item 6 is a valid private trust, it is void because it violates the rule against perpetuities.

Division one of the answer filed by the trustees to the application admits the first six paragraphs thereof, but denies the seventh, set out above, and each lettered subdivision. Division two of the answer alleged matters pertaining to the life of Dr. Small and the administration of his estate, the material portions of which we have stated herein. The reply of the applicants admits these allegations, but denies the enforceability and validity of the trust.

The burden of proof in the trial was on the petitioners, and their opening statement was as follows: 'It is the position of the petitioners * * * that there is no competent evidence to be offered in this action. That the Court may, under the law, take judicial notice of all matters necessary for the Court to determine this case, so at this point the petitioners rest.'

The records and files in the estates of Dr. and Mrs. Small were received in evidence by agreement subject to any objection, other than that of competency. The relationship of the petitioners to the deceased and his widow was admitted. To show the circumstances surrounding the deceased at the time of the execution of the will and as explanatory of Item 6, evidence concerning Dr. Small's life, character, work, church and kindred religious activities, charities, and other endeavors was received subject to objections. This testimony was given largely by Mr. Cohagen, age 66, for trustees. The witness came to Waterloo in April, 1920, as general secretary of the Y. M. C. A., in which position he continued for over 21 years before retirement. He affiliated in 1920 with the Grace Methodist Church at Waterloo of which Dr. Small had been a member since 1890. Until the death of the doctor in 1939, the witness was closely associated with him in church and Y. M. C. A. work. The doctor was a member of the Y. M. C. A., a regular contributor to it financially, and greatly interested in its programs and endeavors. He was a member of the official board of the church, a generous contributor to all activities of the church, and a regular attendant of the church and Sunday School programs. The witness and Dr. Small were active in all financial campaigns for the general church budget, ministerial support and pensions, missions, and endowment funds for conference claimants. He contributed to Cornell College, the American Bible Society and the Moody Bible Institute. He contributed to the advancement of temperance in the use of alcoholic liquors as a beverage. He often discussed religious matters with the witness. He was interested in missions and the program of evangelism in the Methodist Church. Mrs. Small joined her husband in these activities. The doctor many times reaffirmed his belief in the 'Articles of Religion and the Discipline of the Methodist Church', in the Fatherhood of God, his faith in Jesus Christ and the Holy Spirit. He was a man of great faith and believed that men were guided by God. He was a believer in the Apostles' Creed. The records of the Grace Methodist Church of Waterloo show that Dr. Small joined the Church July 27, 1890 and was continuously a member until his death. There was no contradiction of, nor disagreement with, this testimony.

Other witnesses for the trustees were Dr. Charles S. Hempstead, District Sup't. of the Waterloo District of the North Iowa Conference of the Methodist Church, Dr. Miron A. Morrill, Dr. Russell Cole, President of Cornell College. All of them received high scholastic degrees in philosophy, sacred theology and kindred subjects. Each by education, teaching, service in the ministry, and other religious activities was eminently qualified to testify to the Bible and its lessons and the fundamental basis and principles of the Christian religion, and the life and teachings of Jesus Christ. We will not attempt to summarize their testimony. They testified that while all churches professing the Christian religion did not require the acceptance of some religious principles which other denominations did, yet all were in agreement on a great many principles of the Christian religion which were considered...