Troutman v. Association

• Decision Date: 10 January 1903
• Docket Number: 11,822
• Parties: JAMES A. TROUTMAN et al. v. THE DEBOISSIERE ODD FELLOWS' ORPHANS' HOME AND INDUSTRIAL SCHOOL ASSOCIATION et al
• Court: Kansas Supreme Court

71 P. 286

66 Kan. 1

JAMES A. TROUTMAN et al. v. THE DEBOISSIERE ODD FELLOWS' ORPHANS' HOME AND INDUSTRIAL SCHOOL ASSOCIATION et al

No. 11,822

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Franklin district court; SAMUEL A. RIGGS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CONVEYANCE--Invalid Gift to Orphans' Home. An instrument of writing purporting to convey lands to trustees and their successors in perpetual trust to provide a home and school for the maintenance and education of the children of the deceased members of a secret society is not a gift for purposes of a public charity, and is void as against the rule prohibiting perpetuities of title in estates.

John W Deford, William H. Clark, Troutman & Stone, and G. C. Clemens, for plaintiffs in error.

George A. Huron, Benson & Harris, and M. B. Nicholson, for defendants in error.

DOSTER C. J. JOHNSTON, SMITH, GREENE, JJ., concurring. CUNNINGHAM, J. POLLOCK, J. BURCH, J. dissenting.

OPINION

DOSTER, C. J.:

This was an action to set aside the following deed made by Earnest Valeton DeBoissiere:

"DEED OF TRUST.

"THIS INDENTURE, Made this 11th day of May, 1892, between Earnest Valeton DeBoissiere, a single man, of Franklin county, in the state of Kansas, party of the first part, and Louis C. Stine, George A. Huron, Milo B. Ward, George W. Jones, and Charles L. Robbins, and their successors in office, as trustees of the party of the third part, in the state of Kansas, parties of the second part, and The DeBoissiere Odd Fellows' Orphans' Home and Industrial School Association, of Kansas, party of the third part,

"WITNESSETH: That said party of the first part, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and in the further consideration of a spirit of philanthropy and good will on the part of said first party, and of a desire on his part to assist in making a provision for the orphans of deceased Odd Fellows of the state of Kansas, does by these presents grant, bargain, sell and convey unto said parties of the second part, their successors and assigns, all the following described real estate, situated in the county of Franklin and state of Kansas, to wit;

"To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, forever, in fee; in trust, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared; that is to say:

"First: In trust to provide a home upon said premises for the orphan children of deceased Odd Fellows of the state of Kansas.

"Second: To control and manage the same as an industrial school and farm, and to maintain thereon such schools and mechanical shops as may be necessary and convenient for the use of the farm and for the education of the inmates of said home in domestic and mechanic arts, including instruction in mechanical trades, agriculture, plane geometry, practical surveying, practical chemistry, practical geology, practical physics, and practical veterinary surgery.

"Third: The children in said home who are able to do farm or garden work are to be reasonably employed, and account kept by the hour, and the reasonable value of such work paid to the support of said home.

"Fourth: All products to be used, so far as necessary, in carrying on said home, but to be accounted for at a fair market price.

"Fifth: Said first party hereby reserves the right, during his natural life, to reside upon said premises, and said parties of the second part are hereby required to provide him with suitable rooms in said home, comfortably furnished and kept, and to provide him with proper board and care without charge, whenever he shall choose to occupy the same.

"Sixth: The net income of the farm to be applied by said parties of the second part to improvement and necessary repairs of said premises and buildings thereon, and the employment of the teachers in the industrial school herein provided for. And the support of the children in said home, for every kind of expense except teaching, to be provided by the Odd Fellows of Kansas. And said party of the first part, being a single man, does hereby covenant, promise, and agree that the within-described premises are free, clear and discharged of and from all encumbrances, of whatever nature or kind soever; and that he will warrant and forever defend the same unto parties of the second part and the parties of the third part, their heirs and assigns, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.

"And the said parties of the second part covenant faithfully to perform and fulfil the trust herein created.

"IN WITNESS WHEREOF, the said parties have hereunto set their hands, the day and year first above written.

E. V. DEBOISSIERE,

Party of the first part.

LOUIS C. STINE,

GEORGE A. HURON,

MILO B. WARD,

GEORGE W. JONES,

CHARLES L. ROBBINS,

Parties of the second part."

The case has been under consideration for a long time. At the March sitting for 1901 a judgment of affirmance was rendered by a divided court. (64 P. 33.) A petition for rehearing was allowed, a reargument had, and since then we have given to the questions presented much careful consideration. The conclusion of the majority of the court now is that a judgment of reversal should be ordered.

That the foregoing deed is void on its face, unless the trust it attempts to create is a public charity, is beyond controversy, for it violates the rule against perpetuities of title in estates. Not only by necessary implication, derivable from the recital of its object, but by its express language, it vests a perpetual trust in the described lands in the trustees named and their successors. Therefore, the only question is whether the trust the instrument attempts to create is in aid of a public charity, because trusts in perpetuity in aid of such object are not within the prohibition of the rule. Obviously that question depends on the definition of a public charity, and concerning that definition there should not be, in reason, much dispute. We may differ as to whether a particular case comes within the definition, but the definition itself must be fixed and unvarying, else there can be no law on the subject, and each case would be made to depend on the arbitrary will of the judges.

Much learning has been displayed, in judicial opinions and in law-books, in the discussion of the question whether, antecedent to the statute of Elizabeth (43 Eliz.), chancery exercised the jurisdiction it now possesses with reference to charities, but the learning is more curious than important. The cases decided before that statute are only matter of history, and none of them is ever cited now as an authority concerning the law itself. Judge Story says:

"But however extensive the jurisdiction may originally have been over the subject of charities, and however large its application, it is very certain that since the statute of Elizabeth no bequests are deemed within the authority of chancery, and capable of being established and regulated thereby, except bequests for those purposes which that statute enumerates as charitable, or which by analogy are deemed within its spirit and intendment. A bequest may in an enlarged sense be charitable, and yet not within the purview of the statute. Charity, as Sir William Grant (the master of the rolls) has justly observed, in its widest sense, denotes all the good affections men ought to bear towards each other; in its more restricted and common sense, relief to the poor. In neither of these senses is it employed in the court of chancery. In that court it means such charitable bequests only as are within the letter and the spirit of the statute of Elizabeth." (2 Story, Eq. Jur. § 1155.)

Judge Story summarizes the charitable uses provided for by the statute of Elizabeth as follows:

" The uses enumerated in the preamble of the statute as charitable are gifts, devises, etc., for the relief of aged, impotent and poor people; for the maintenance of sick and maimed soldiers and mariners; for schools of learning, free schools, and scholars of universities; for repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways; for education and preferment of orphans; for or towards the relief, stock or maintenance for houses of correction; for marriages of poor maids; for supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed; for relief or redemption of prisoners or captives; and for aid or ease of any poor inhabitants, concerning payments of fifteenths, setting out of soldiers, and other taxes. These are all the classes of uses which the statute in terms reaches." (2 Story, Eq. Jur. § 1160.)

It will be observed that every one of these uses was, under English law, a strictly public use. Everything proposed was a thing which the government itself might properly do, for it was the business of government to repair churches even, since religion was a state affair, and parliament had the undoubted power to provide from public funds for "marriages of poor maids" by giving them portions as inducements to bashful swains. Every purpose proposed was a public purpose--under English law, a governmental purpose. The settled definition of "public charities" has agreed with this view, however widely some courts may in recent times have departed from that definition in the decision of particular cases. Thus:

"Definition of charity: A gift to a general public use, which extends to the poor as well as to the rich: many instances in the statute 43 Eliz. carrying...