Wemme v. Noyes

• Citation: 134 Or. 590,294 P. 602
• Parties: WEMME ET AL. v. NOYES ET AL.
• Decision Date: 30 December 1930
• Court: Supreme Court of Oregon

294 P. 602

134 Or. 590

WEMME ET AL. v. NOYES ET AL.

Supreme Court of Oregon

December 30, 1930

In Bank.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Suit by August Wemme and others, heirs of E. Henry Wemme, deceased against Allen P. Noyes and others, trustees of the E. Henry Wemme Endowment Fund, and others. From a judgment and decree dismissing the complaint, plaintiffs appeal.

Affirmed.

The prayer of the complaint in this suit is in the following language:

"1. That the defendants may be immediately removed as trustees of this fund and render an accounting.

"2. That the Attorney-General be required to institute immediate proceedings for the recovery of the White Shield Home and that the control thereof in case of its recovery be placed in the hands of some responsible religious or philanthropic institution or church organization engaged in social work and free from financial or political influence.

"3. That the Attorney General be required to act and take charge of all legal activities connected with the E. Henry Wemme Endowment Fund.

"4. That in the alternative, if the Honorable Supreme Court does not grant the foregoing relief and order a recovery of the White Shield Home, the plaintiffs herein pray that a resulting trust be declared for all the reasons legal and otherwise appearing in this record.

"5. That all sales of property made without the advice or consent of the Attorney General may be set aside and particularly the property sold to Hirsch-Weis Manufacturing Company.

"And for such other and further relief as to the Court may seem equitable and just."

To the complaint a demurrer was filed by the defendants on two grounds: First, the plaintiffs have not the legal capacity to sue; second, several causes of suit have been improperly united. The demurrer was sustained by the circuit court. Plaintiffs refused to further plead, and judgment and decree was entered against them dismissing the complaint with prejudice and for costs and disbursements. Plaintiffs appeal from said decree and judgment. From the conclusion we have reached, it is unnecessary to consider other than the first ground of demurrer.

RAND J., dissenting.

There is no resulting trust in public charity fund. Per Coshow C.J., and Rossman and Brown, JJ.

Testator's heirs, being deprived of any interest in fund for public charity, held to have no capacity to sue for accounting, or control over administration of fund. Per Coshow, C.J., and Rossman and Brown, JJ.

Thomas Mannix, of Portland, for appellants.

John Veatch, of Portland (Joseph, Haney & Veatch, of Portland, on the brief), for respondents.

COSHOW, C.J. (after stating the facts as above).

This case is another attempt on the part of plaintiffs to control or destroy the bequest and devise of the late Henry Wemme in favor of the home for wayward girls he desired to establish in the city of Portland. Whatever may be the purpose of the instant suit, it operates to delay administration of the charity already unreasonably delayed by numerous litigations. It has been before this court three times before: Wemme v. First Church of Christ, 110 Or. 179. 219 P. 618, 223 P. 250; 111 Or. 386, 227 P. 277; 115 Or. 281, 237 P. 674; E. Henry Wemme Co. v. Selling, 123 Or. 406, 262 P. 833.

The decision of the court in the case construing the will of the late E. Henry Wemme was unanimous. Mr. Justice Rand wrote the OPINION (110 Or. 179, 192, 193, 219 P. 618, 622, 223 P. 250) and used this direct and positive language: "The property that the testator intended to donate to the charity is specifically described in the will. There are no words contained in the will by which the property can ever revert to the heirs or to the residuary legatee. The gift was immediate and absolute and vested the title to the property in the trustees as soon as the will took effect. From that moment the property became impressed with the trust and passed beyond the reach of the heirs or residuary legatee. Hence the charitable use of the devised property cannot fail, for, as said by Mr. Justice Story in his note supra: 'If the charity does not fail, but the trustees or corporation fail, the court of chancery will substitute itself in their stead, and carry on the charity.' The terms of the will were sufficiently definite and certain to constitute a good and valid devise of the trust property to the E. Henry Wemme Endowment Fund. The title to the devised property is vested in that corporation, and can never become vested in the heirs or in the residuary legatee." By the construction placed upon the will this court held in effect that the title to the property involved in controversy passed from the estate of the said E. Henry Wemme, deceased, as absolutely, completely, and effectively as though he had conveyed it by warranty deed without condition qualification, or reservation of any kind prior to his death. Plaintiffs in the instant action have no more claim, right, or title, at present or in the future, expectant or vested, contingent or unconditional, than if the property had never been a part of the estate of the benevolent testator.

Again in Wemme v. First Church of Christ, Scientist, 115 Or. 281, 290, 237 P. 674, 677, this court made this statement: "Either the Attorney General or the prosecuting attorney was the proper person to initiate the necessary proceedings to have that question determined. 11 C.J. 366, §§ 83, 84, page 368, §§ 89, 90; MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652...