Opinion
18764.
ARGUED OCTOBER 11, 13, 1954.
DECIDED NOVEMBER 8, 1954.
Construction of will. Before Judge Anderson. Bibb Superior Court. June 28, 1954.
Victor Davidson, Benning M. Grice, for plaintiffs in error.
Eugene Cook, Attorney-General, Hamilton B. Stephens, F. Douglas King, Assistant Attorneys-General, A. O. B. Sparks, Jr., Durwood B. Mercer, Jones, Sparks, Benton Cork, contra.
1. While a hospital is not per se a subject of charity as defined in Code § 108-203, and depends upon the service given as to whether or not it is a subject of charity within the meaning of the above statute ( Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349 (2), 9 S.E.2d 165), nevertheless the devise "to the Masonic Hospital of Georgia, for tubercular children" is a charitable bequest within the meaning of the provisions of that Code section, to wit, "other similar subjects, having for their object the relief of human suffering or the promotion of human civilization."
2. From a consideration of the entire will and codicil, it is apparent that the legacy "to the Masonic Hospital of Georgia, for tubercular children" was not intended for the benefit of any particular institution, but for the benefit of the tubercular children as a class with the particular hospital named to perform the office of trustee. Goree v. Georgia Industrial Home, 187 Ga. 368 ( 200 S.E. 684).
3. Where, as here, the manifest intention was to create a charitable trust for tubercular children, and even though the charitable institution named never existed, the purpose and object for which the trust was created still exists and the legacy does not lapse, and the cy pres doctrine applies. See Code Ch. 108-2; Code §§ 108-302, 113-815; 69 C. J. 42; 14 C. J. S. 514-16; Beckwith v. Rector c. of St. Philip's Parish, 69 Ga. 564; Mitchell v. Turner, 117 Ga. 958 ( 44 S.E. 17); Goree v. Georgia Industrial Home, 187 Ga. 368, supra; Armstrong v. Merts, 202 Ga. 483 ( 44 S.E.2d 512). It follows that the heirs at law of the testator having no interest in the bequest, the court did not err in striking their pleadings, setting up their claims as heirs, alleging the legacy had lapsed.
Judgment affirmed. All the Justices concur.
ARGUED OCTOBER 11, 13, 1954 — DECIDED NOVEMBER 8, 1954.
The executor (one of the defendants in error) of the last will and testament and codicil of Mrs. Pauline H. Wylly filed a bill in equity in the nature of a petition for direction in the Superior Court of Bibb County against the Attorney-General of Georgia (another defendant in error), the Grand Lodge of Georgia, F. A. M. (no longer an interested party), and the various heirs at law of the deceased testator (some of whom are the plaintiffs in error). The petition alleges that the executor has a named sum of money in its possession, and that the entire estate except for certain very small devises is devised in the residuary clause of the will to "the Masonic Hospital of Georgia," and that no such legal entity exists; that the Masons of Georgia had previously built and equipped a building for tubercular children at Alto, Georgia, which was donated and accepted by the State; that, as a result of the transfer of the State Hospital for the treatment of tubercular patients to Battey State Hospital, Rome, Georgia, the building donated by the Masons, along with the State Hospital for tubercular patients at Alto, has been abandoned; and the petition prays that the court apply the cy pres doctrine and direct the petitioner in the distribution of that portion of the estate which passed under the residuary clause.
The Attorney-General in his official capacity filed an answer, praying that the court apply the cy pres doctrine, declare the bequest to be a valid charitable trust and that the governing authorities of Battey State Tubercular Hospital be named trustees to administer the trust fund for the benefit of tubercular children being treated at said hospital; that all other claims be discharged as being invalid; and for general relief. The Scottish Rite Hospital for Crippled Children intervened and filed its pleadings praying that it be made a party; that all claims against the corpus be discharged as being invalid; and that the court apply the cy pres doctrine, declaring the bequest to be a valid charitable trust, and it be named trustee to administer the fund for the benefit of crippled children receiving treatment in said hospital; and for general relief. The withdrawal and abandonment of the claim of the Grand Lodge of Georgia, F. A. M., results in its being no longer an interested party in the case. Two of the heirs at law set up certain claims for services rendered in addition to their claims as heirs, and nine of the heirs at law who are also plaintiffs in error set up a plea, answer and cross-action admitting the allegations of the petition, but praying for a denial of the petitioner's prayers, and that they be decreed to be entitled to the fund due to the lapse of the legacy, since the residuary clause of the will and codicil was not legally sufficient to create a charitable trust and the legacy has lapsed, resulting in an intestacy. The court sustained a demurrer and motion to strike the pleadings of the heirs alleging a lapsed legacy, and after a final judgment, the exception here is to it and to the previous judgment striking their claims to the fund as heirs.