Troutman v. De Boissiere Odd Fellows’ Orphans’ Home & Industrial School Association

• Court: Kansas Supreme Court
• Writing for the Court: POLLOCK, J. (after stating the facts).
• Citation: Troutman v. De Boissiere Odd Fellows’ Orphans’ Home & Industrial School Association, 64 P. 33 (Kan. 1901)
• Decision Date: 09 March 1901
• Parties: TROUTMAN et al. v. DE BOISSIERE ODD FELLOWS’ ORPHANS’ HOME & INDUSTRIAL SCHOOL ASS’N et al.

64 P. 33

TROUTMAN et al. v. DE BOISSIERE ODD FELLOWS’ ORPHANS’ HOME & INDUSTRIAL SCHOOL ASS’N et al.

Supreme Court of Kansas

March 9, 1901

[Copyrighted Material Omitted]

Syllabus by the Court.

1. In a case submitted to the court without the intervention of a jury, where a general finding of fact is made upon contradictory oral testimony, such finding is conclusive upon this court.

2. An absolute conveyance of property to trustees, "in trust to provide a home upon said premises for the orphan children of deceased Odd Fellows of the state of Kansas," creates a legal public trust or charity.

3. The rule of law against the creation of perpetuities has no application to a public trust or charity.

4. Uncertainty as to individual beneficiaries is an essential and distinguishing characteristic of a valid gift to charity.

5. Where the title to property vests in trustees for a legal charitable use, and the particular plan or scheme of executing the trust, as indicated by the donor in the instrument creating the charity, becomes impracticable, or even impossible of performance, the trust property does not revert to the heir of the donor, in the absence of an express provision to that effect in the creation of the trust; but so long as the beneficiaries of the trust may be ascertainable, a court of equity will compel the execution of the trust along lines as nearly consonant as possible with the general plan of the donor.

Doster, C. J., and Johnston, J., dissenting from second paragraph of syllabus and corresponding portion of opinion.

Error from district court, Franklin county; S. A. Riggs, Judge.

Action by Corinne Martinelli against the De Boissiere Odd Fellows’ Orphans’ Home & Industrial School Association and others. James A. Troutman and others, purchasing the interest of plaintiff, were substituted in her stead. Judgment for defendants, and plaintiffs bring error. Affirmed.

This is an action in the nature of ejectment, originally brought by one Corinne Martinelli, née Valeton De Boissiere, a resident of the republic of France, as sole heir at law of one Ernest Valeton De Boissiere, deceased, to recover the possession of certain real estate, comprising 3,156 acres, and for rents and profits thereof, against the present defendants in error and the Grand Lodge of the Independent Order of Odd Fellows of Kansas. All parties to the record claim title from a common source. On the 11th day of May, 1892, and for a long period of time prior thereto, said Ernest Valeton De Boissiere was the owner in fee of the real estate in controversy, in possession thereof, and had erected thereon lasting improvements of great value. On this date said De Boissiere made, acknowledged, and delivered a certain instrument of writing, denominated a "deed of trust," which deed of trust is as follows, to wit:

"This indenture, made this 11th day of May, 1892, between Ernest Valeton De Boissiere, 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 De Boissiere 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: [Here follow descriptions of land, aggregating 3,156 acres.] To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise 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: (1) In trust to provide a home upon said premises for the orphan children of deceased Odd Fellows of the state of Kansas. (2) 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 mechanical arts, including instruction in mechanical trades, agriculture, plane geometry, practical surveying, practical chemistry, practical geology, practical physics, and practical veterinary surgery. (3) 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. (4) All products to be used, so far as necessary, in carrying on said home, but to be accounted for at a fair market price. (5) 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. (6) 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 expenses 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 incumbrances, of whatever nature of 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 the 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 fulfill the trusts herein created. In witness whereof, the said parties have hereunto set their hands the day and year first above written. E. V. Boissiere, 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."

At the date of the making of this deed of trust the trustees therein named were prominent members of the order of Odd Fellows; the trustee Milo B. Ward being at the time the grand master of the Grand Lodge of the state of Kansas, and Louis C. Stine trustee, being the grand treasurer thereof. At this date the corporation therein named, the De Boissiere Odd Fellows’ Orphans’ Home & Industrial School Association of Kansas, had not come into existence; but it was shortly thereafter incorporated under the laws of this state, the trustees therein named being the incorporators thereof. Thereafter, at its session in the year 1892, the Grand Lodge of the Order of Odd Fellows of Kansas assumed to accept the provisions made in said deed of trust in behalf of that body, and in the year 1893 levied a tax upon its members to aid in carrying forward the purposes of said trust. However, thereafter, there coming up in the Grand Lodge a dispute in regard to this trust, all connection with and interest in the trust property was by the Grand Lodge expressly repudiated and rescinded, and the grand master and grand secretary of that order were directed and authorized by that body to convey by deed of quitclaim all interest or claim of title in this property to the defendant the De Boissiere Odd Fellows’ Orphans’ Home & Industrial School Association, which was done, and the defendant the Grand Lodge of Odd Fellows of the State of Kansas declined to further participate in this litigation. On January 12, 1894, said Ernest Valeton De Boissiere died at his country residence near the city of Bordeaux, France. This action was originally brought on the 10th day of October, 1896. On the 30th day of January, 1897, and during the pendency of this action in the district court, the present plaintiffs below, here plaintiffs in error, succeeded by purchase to all the rights of the original plaintiff in the property, taking on said date a deed of quitclaim thereto, and by order of the trial court were substituted in the place and stead of the original plaintiff in this litigation. Upon this order of substitution of plaintiffs in the court below being made, an amended petition in the nature of a bill in equity was filed by leave of court, specifically challenging the validity of the above deed of trust upon the grounds that said deed of trust had been obtained through an unlawful conspiracy and combination, entered into by the defendant trustees Stine and Huron with one Charles T. Sears, the said Charles T. Sears being at the time the confidential agent and adviser of De Boissiere, and by reason thereof possessing great influence over said De Boissiere, who, at the time, was alleged to be old, infirm in body, and weak in mind; also alleging said deed of trust to be void as a matter of law; and praying for a cancellation, for an accounting with the trustees as to rents and profits of said land, for the appointment of a receiver to take and hold possession of the property pendente...