Appeal
from Circuit Court, Multnomah County; Harry H. Belt, Judge.
RAND
J.
This is
a suit for an account and to recover certain devised trust
property. Plaintiffs, with the exception of the E. Henry
Wemme Company, are the next of kin and sole heirs at law of
E. Henry Wemme, who died testate at Portland, Or., on
December 17, 1914. The E. Henry Wemme Company is a
corporation, and is the sole residuary legatee of the
testator. The property devised in trust consisted of three
tracts of land in Portland, Or., of the value of $350,000.
The provisions of the will relating to the trust are in these
words:
"I give, devise and bequeath unto H. A. Weis, Jessie M.
Carson and J. J. Cole and their successors, lots one (1),
four (4), five (5) and eight (8) in block fifty-three (53) in
Couch's addition to the city of Portland, and also lots
one (1) and four (4) and the south twenty (20) feet of lot
five (5) in block nine (9) of Couch's addition to the
city of Portland, and the south one hundred twenty (120) feet
of block seventy-two (72) in East Portland, now a part of
Portland, and all now being in the city of Portland,
Multnomah county, state, of Oregon, to be held in trust,
however, by said H. A. Weis, Jessie M. Carson and J. J. Cole
and their successors for the uses and purposes hereinafter
set forth as follows: Said trustees and their successors
shall have power and authority to hold, manage, improve,
repair or lease said property or any part thereof without any
other authorization than that hereby given, and shall collect
all rents, issues and profits arising from said property, and
shall from such rents, issues and profits, first pay all
taxes, assessments and charges of whatsoever
kind or nature lawfully made against said property, or any
part thereof.
"My said trustees shall immediately after my death cause
to be formed a corporation under the name of 'E. Henry
Wemme Endowment Fund' under and by virtue of the laws of
the state of Oregon, providing that the duration of said
corporation shall be perpetual, that its principal office and
place of business shall be in the city of Portland, county of
Multnomah and state of Oregon, with a capital stock to be
determined by my trustees, not to exceed, however, the
reasonable value of the property hereinbefore devised to my
trustees at the time of such incorporation, and incorporated
for the purpose of buying, owning, holding, managing,
improving, mortgaging and leasing the real property
hereinbefore devised to my trustees, and for the purpose of
conducting a maternity home or lying-in hospital for
unfortunate or wayward girls in the city of Portland,
Multnomah county and state of Oregon.
"My said trustees shall jointly subscribe for all of the
capital stock of said corporation, and shall thereupon
complete the organization and cause such action to be taken
by it that it shall purchase of my said trustees all of said
property hereinbefore devised to my trustees, and in payment
therefor, issue its capital stock to my said trustees,
jointly, and thereupon said trustees shall by good and
sufficient conveyance or conveyances grant, bargain, sell and
convey to said E. Henry Wemme Endowment, a corporation, all
of the real property hereinbefore devised to said trustees,
and thereupon the capital stock of said corporation of E.
Henry Wemme Endowment Fund shall be issued to said trustees
jointly in one certificate which capital stock witnessed by
said certificate shall be held in trust by said trustees and
disposed of by them as hereinafter directed.
"Immediately upon the completion of the organization of
said E. Henry Wemme Endowment Fund, and the transfer to said
corporation last mentioned of the property herein devised to
my trustees, then and thereupon said
corporation shall have the right to borrow a sum of money not
to exceed seventy-five thousand and no/100 ($75,000.00)
dollars, upon the promissory note of said corporation, and to
secure the payment of such promissory note by mortgage
executed by it covering lots one (1) and four (4) and the
south twenty (20) feet of lot five (5) in block nine (9) of
Couch's addition to the city of Portland, in Multnomah
county, state of Oregon, said promissory note and mortgage
shall contain such provisions and conditions as may be
determined and agreed upon by said corporation and the
person, firm or corporation from whom it may secure such
loan.
"After securing money on the mortgage hereinbefore
provided to be executed by it the said E. Henry Wemme
Endowment Fund shall proceed to purchase suitable real estate
as a site for a maternity home for unfortunate and wayward
girls, and shall construct thereon a suitable home for the
reception, accommodation,
care, treatment and comfort of unfortunate and wayward girls
who may be in need thereof, and shall furnish, equip and
maintain such maternity home without cost or charge to the
inmates thereof, but shall use the rents, issues and profits
arising and issuing out of the property owned by said E.
Henry Wemme Endowment Fund, in maintaining, furnishing and
equipping said maternity home, and in caring for and
providing for the inmates thereof, making a provision,
however, should the said corporation deem it necessary, for a
sinking fund from such rents, issues and profits, to pay out
thereof, when it shall have become due said note given by the
corporation as hereinbefore provided. Said maternity home
shall be known as the White Shield of Portland, Oregon, and
the inmates shall be admitted thereto irrespective of
religion or nationality.
"Said corporation by and through my said trustees who
shall constitute the board of directors thereof, shall after
the construction of said home open and
thereafter conduct the same for the accommodation, care and
keeping of unfortunate and wayward girls as a lying-in
hospital without charge therefor.
"In case of the death, resignation or permanent
inability of any or either of my said trustees to act as such
trustee or trustees, then and in that event the successor or
successors of my trustees shall have the right and shall name
and appoint the successor or successors of my trustees who
may die, resign or be permanently disabled from the
performance of the duties as my trustee hereunder, and such
successor shall have the right in the same way to appoint
their successors and so it shall continue, and a majority of
the trustees shall have the right to exercise full power and
authority under and by virtue of the provisions of this my
last will and testament.
"Upon the expiration of three years from and after my
death I direct that my trustees transfer to the different
churches of the Church of Christ Science of Portland, Oregon,
authorized and chartered by the head Church of Christ Science
known as the Mother Church of Boston, Massachusetts, all of
the capital stock of said E. Henry Wemme Endowment Fund, in
equal parts, to be theirs forever, for their own respective
uses and benefit and without any charge or trust reserved to
my estate of whatsoever kind or nature, and thereupon my
trustees and their successors shall be considered as having
completed their duties hereunder and discharged.
"I hope, however, this is not directory, but merely a
suggestion that the maternity home constructed as
hereinbefore provided shall be continued by said corporation,
E. Henry Wemme Endowment Fund, perpetually and forever, but I
do not make this binding upon said Church of Christ, Science,
or upon said E. Henry Wemme Endowment Fund, a corporation,
for the reason that I have implicit faith and confidence in
the Church of Christ Science, and believe that they will be
perpetual and I realize the inability of one now living to
determine what in the future might be the greatest need and
benefit to suffering humanity, and therefore I
have given absolutely and without reservation all of the
stock of said corporation of said E. Henry Wemme Endowment
Fund, to said Church of Christ Science believing that they
will expend the rents, issues and profits and all the
proceeds of the said E. Henry Wemme Endowment Fund in a
manner so as to create the greatest relief for the greatest
number of suffering humanity."
After
the death of the testator the trustees, pursuant to his
direction, incorporated the E. Henry Wemme Endowment Fund and
conveyed said devised property to said corporation. As
directed by the will the articles of incorporation provided
for the corporation to have capital stock, which stock was
issued in the name of the three trustees, in one certificate.
The corporation then borrowed the sum of $75,000 upon its
note and mortgage, purchased a site in the city of Portland
suitable for a maternity home or lying-in hospital, erected
the necessary buildings thereon, furnished and equipped the
same, and received and admitted into said maternity home and
lying-in hospital those persons requiring the need of such an
institution who came within the class designated by the
testator in his will, and furnished to them, free of charge
the services provided for by the testator. Three years after
his death the trustees transferred in equal shares to the
defendant churches the capital...
