State ex rel. Emmert v. Union Trust Co. of Indianapolis
| Decision Date | 02 October 1947 |
| Docket Number | 17582. |
| Citation | 74 N.E.2d 833 |
| Parties | STATE ex rel. EMMERT, Attorney General, et al. v. UNION TRUST CO. OF INDIANAPOLIS et al. |
| Court | Indiana Appellate Court |
Appeal from Marion Probate Court; Dan V. White, Judge.
James A. Emmert, Atty. Gen., and Cleon H. Foust, Deputy Atty. Gen and Sherwood Blue, Pros. Atty., of Indianapolis, for appellants.
Paul Y. Davis and John G. Rauch, both of Indianapolis, for appellees.
This is an action brought in the name of the State of Indiana, on the relation of the Attorney General and the local prosecuting attorney to enforce the provisions of an alleged public charitable trust. The appellees, Fletcher Hodges and the Union Trust company of Indianapolis, are sued in both their individual capacities and as residuary trustees under the last will of Laura Fletcher Hodges. The complaint seeks to have the provisions of Item 3 of the will of said decedent declared to constitute a public charitable trust. The provisions of Item 3 are:
'In the event that I shall not in my life time have made publication of the diary of my grandfather, Calvin Fletcher I direct that the Executor of this my last will and testament procure to be edited by a qualified person and to be printed and published at a reasonable cost the diaries of my grandfather, Calvin Fletcher--the same to be dedicated to my father, Stoughton A. Fletcher, Jr.--and to make proper distribution of the same.'
The prayer of the complaint asks that the diaries of the said Calvin Fletcher be impounded pendente lite; that the court find the reasonable cost and expense of editing, printing publishing, and distributing the same; that the defendants, The Union Trust Company ofIndianapolis and Fletcher Hodges, be removed as trustees of said alleged public charitable trust for the purpose of editing, printing, publishing, and distributing such manuscripts, and that the court appoint some suitable person to do the same. That the successor trustee be ordered as expeditiously as possible to edit, print, publish, and distribute the same, and generally to carry out the provisions of such alleged public charitable trust.
The defendants filed separate demurrers to plaintiff's complaint upon the grounds of: (1) Defect of parties, in that the executors of the will of Laura Fletcher Hodges are necessary parties and they are not joined, and (2) that the complaint does not state facts sufficient to constitute a cause of action. Specifications (a), (b), and (c) of the demurrer for unsufficient facts raise the defense of res adjudicata in the contention that the alleged failure of the executors of Laura Fletcher Hodges to publish the diary of Calvin Fletcher has been conclusively adjudicated by the judgment of final settlement, in the estate of Laura Fletcher Hodges, and that, since more than nineteen years have elapsed since such final settlement, such settlement is a conclusive bar to all relief sought in the complaint. Specification (d) is that the complaint shows no interest, right, or title in the subject matter of the alleged action either in plaintiff or either relator, and Specification (e) is that the complaint shows that the provisions of Item 3 of the will of decedent were and are too indefinite to form the basis of an enforceable obligation against her estate, its executors, or trustees.
The court sustained appellees' demurrers to appellant's complaint. Appellant refused to plead over, judgment was rendered against appellant, and this appeal followed.
Error assigned for reversal is the action of the trial court in sustaining the demurrers of appellees to appellant's amended complaint.
Specifications (d) and (e) of appellees' demurrers for want of facts which question the right, title, and interest in the subject-matter of the action in the plaintiff or either relator, and present the contention of appellees that the provisions of Item 3 of decedent's will are too indefinite to form an enforceable obligation against her estate, its executors, or her trustees; necessitates our determination of the legal proposition whether Item 3 of decedent's will created a valid public charitable trust.
If a valid charitable trust was created, the law is well settled that, since the enforcement of charitable trusts are in the public interest, the Attorney General is a proper relator to maintain such suits by the sovereign as parens patriae. MacKenzie v. Trustees of Presbytery of Jersey City, 1905, 67 N.J.Eq. 652, 61 A. 1027, 3 L.R.A.,N.S., 227; 10 American Jurisprudence 668; McGee v. Vandeventer, 1927, 326 Ill. 425, 158 N.E. 127, 133; Carlstrom v. Frackelton, 1931, 263 Ill.App. 250, 259.
It is also well established in this State that the enforcement of charitable trusts is based upon the inherent power of equity over all trusts, independently of statute. Board of Com'rs of Lagrange County et al., v. Rogers et al., 1876, 55 Ind. 297; Erskine v. Whitehead, Executor, et al., 1882, 84 Ind. 357; Vol. 2 Bogert on Trusts and Trustees, § 322, pp. 1020, 1021.
In considering the question whether a valid public charitable trust was created by the provisions of Item 3 of the will of decedent, we must take into account, that the law is well settled that the provisions of instruments purporting to establish charitable trusts are to be given a liberal construction, and that such legacies for the uses of charity will not be declared void if they can, by any possibility consistent with the law, be held valid. Herron v. Stanton, Adm'r., 1922, 79 Ind.App. 683, 147 N.E. 305; Crawfordsville Trust Co. v. Elston Bank & Trust Co., 1940, 216 Ind. 596, 25 N.E.2d 626; Quinn v. Peoples Trust & Savings Co., 1945, 223 Ind. 317, 60 N.E.2d 281, 157 A.L.R. 885.
Counsel for appellees contends that there is nothing to indicate that the gift in the instant case was public in any sense; that the reference to 'proper distribution' of the material in question might be made as narrowly as among the family of the testatrix, and therefore, it could be devoted to private interests and that there is nothing to indicate an intent to benefit the public as such. The fact that the testatrix provided that this material should be published and dedicated to her father clearly shows the intention of the testatrix to dedicate such materials to a public use, and the words 'proper distribution' must be held to relate to the publication of such material. The word 'publish' carries with it a connotation, 'to make known to people in general * * * to bring before the public * * * to make public announcement of, to disseminate.' Webster's New International Dictionary, Second Edition, Unabridged. The contention of appellees in effect that the will provided for a private publication of this material is a contradiction in terms and not tenable. Starting upon this premise that the will provides for a dedication of such material for the use of the public, we must then determine whether this material is of such nature as constitutes a public charity.
The word 'charity' has a technical meaning in the law, by reason of the adjudicated case, which is much broader than the popular use of the term, and which is not easily defined. There are many definitions of charity set forth in the decisions, all of which are generally based upon the question of whether or not a given trust will bring about a reasonable amount of public benefit or social improvement. These cases considered together do not furnish a satisfactory basis for an abstract definition of the term. Each case must be considered in the light of its effect upon and benefit to the public interest which may vary from time to time and generation to generation. Todd v. Citizens' Gas Co. of Indianapolis, 7 Cir., 1931, 46 F.2d 855.
The complaint states and the demurrer of appellees admit, that the diaries referred to in the above provision of decedent's will, constitutes the most important single source relating to the life, living conditions, and history of the central portion of Indiana and the City of Indianapolis; that the said Calvin Fletcher was one of the first lawyers to practice in the City of Indianapolis, and collaborated in the establishment of the first banking house in the City of Indianapolis and engaged in many useful activities; that he had marked literary ability. He made voluminous notes and observations on life and conditions in the City of Indianapolis and the central portion of Indiana; that the entries in the diary were substantially continuous throughout said period from 1821 to 1866, covering a period of almost fifty years, and with few exceptions, entries were made at daily intervals; that contained in these diaries are materials of great historical interest and value to the entire State and Nation, in that there is contained, amongst other observations, daily records of the temperature, weather conditions, prices of commodities, business transactions, farm operations, church and social affairs, and other information which can be found in no other place, in view of the fact that there were no official weather bureaus at the time, and few other authentic original records made as to prices, living conditions and events which occurred in the City of Indianapolis, and in the central portion of Indiana throughout the formative period from 1820, when the capitol was located in the City of Indianapolis, to the close of the Civil War; and, that the editing, printing, publication, and distribution of said diaries is a matter of great public interest.
While it cannot be said that the publication of an individual's diary, or the publication of material which extends information in every case constitutes a charitable use, we are constrained to hold that by reason of the facts set forth in the complaint and admitted by...
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