Opinion
15871.
JULY 11, 1947.
Construction of will. Before Judge David S. Atkinson. Chatham Superior Court. March 31, 1947.
Gilbert E. Johnson and L. L. Scott, for plaintiffs.
Lawton Cunningham and William S. Jackson, for defendants.
From a consideration of the will as a whole, and the evidence, the court was authorized to find and hold that the devise contained in the will for the benefit of "An old Folk's Home" was a charitable trust, sufficiently definite and clear to be enforced, for the benefit of old colored people as a class, residing in or near Savannah, Georgia.
No. 15871. JULY 11, 1947.
Mary Ellen Richardson died a resident of Chatham County, Georgia, on October 19, 1929. Her will and codicil, executed June 5, 1922 and June 7, 1929, respectively, were probated in solemn form on January 9, 1930. Items 5 and 6 of the will are as follows:
"5. At the death of the first of said sons, the proceeds of said estate shall inure to the benefit of the other; providing said deceased son shall be without issue as above stated, and at the death of both of said sons, without legitimate issue of the blood. I desire and direct that the entire estate shall be constituted as a fund for the benefit of the `Second Baptist Church, Colored,' and to `An Old Folk's Home,' in equal interest subject to the good judgment and discretion and management of my said executors, whom I hereby constitute a self-perpetuating Board of Trustees for the purpose (expressed) of executing this trust fully, and confer upon them the power and authority in the premises to replace any of their number whenever for any reason such shall become necessary and their duties are to continue until the full execution of this trust. The power hereby conferred upon said trustees carries with it power to make such disposition of my estate after the death of the two sons without heirs of the body as will best secure the end hereof including the power to sell and make a proper and sufficient conveyance of said property and said executors are to hold over as trustees for the purpose outlined after this my last will has been fully executed.
"6. I hereby nominate and appoint my friends, Messrs. Sol C. Johnson, John F. Jones, Dr. Tyson, and T. E. Williams to be executors of this my last will and testament and to hold over as trustees for the purpose of executing the trust created for the benefit of the charitable institutions above designated and I expressly confer upon them ample power as such executor to administer my estate in manner above set out and I expressly relieve them of the necessity of giving bond, making returns and appraisements to the Court of Ordinary and of securing the order of any court for the purposes herein enumerated. And I fully authorize and empower both as trustees and executors to discharge the duties herein imposed as to their judgment may seem best and proper; looking always to conform to the several items, devises, and bequests on the one hand and the uses and trust on the other as the same are set out herein."
The present suit was filed by the executors and trustees under the will for direction as to whether the term, "An Old Folk's Home," is "sufficiently definite to create an interest under said will in favor of any person and directions, if it does create such an interest, as to which and what beneficiary this item refers." The court judicially recognized The Mills Memorial Home Inc. as a charitable institution, chartered as an old folks home for colored people in Savannah, Georgia, on June 19, 1925, and directed that it and the Second Baptist Church, Colored, be made parties defendant. Both filed separate answers and interventions, and each claimed a one-half interest in the estate. The Mills Memorial Home Inc. contends that it is entitled to receive the one-half interest devised to "An Old Folk's Home," since it is the only corporation or institution now operating a home in Chatham County, Georgia, for the benefit of aged colored people; that it was the intent of the testatrix that this devise should not lapse, since the trustees "are authorized to apply that portion of the trust estate which is devised to `An Old Folk's Home' to any other purpose or to any other beneficiary which will accord with the charitable intent of the testatrix, which was to leave one-half of the trust estate which she created for the benefit of a home for the care of aged negroes."
Ottis Houston, Clarence Houston, and Mary Ellen Houston filed an answer and intervention, in which they contend that the term, "An Old Folk's Home," is not sufficiently clear and definite to create any right under the will in any person, and as to this one-half interest in the estate there is an intestacy, to which they, as the sole surviving heirs at law of the testatrix, are rightfully entitled.
It was stipulated by all the parties concerned: (1) When the testatrix made her will and when she died, there was not in existence in Chatham County any corporation of the name of "An Old Folk's Home," and the records fail to disclose that a charter was ever granted to any corporation of that name; (2) by recorded deeds, dated January 23, 1903, and December 24, 1913, certain lots in East Savannah were conveyed to "The Colored Old Folks and Orphans Society of Savannah," and to the "Old Folks and Orphans Home;" (3) no charter has been issued in Chatham County to either organization; (4) on June 5, 1927, by recorded deed, the lots were conveyed by the "Old Folks and Orphans Home, sometimes designated Colored Old Folks and Orphans Society of Savannah," to the Charity Hospital and Training School for Nurses, for a consideration of $10 and other valuable considerations; (5) the "Old Folks and Orphans Home, sometimes designated Colored Old Folks and Orphans Society of Savannah," was commonly known in Savannah as "The Old Folks Home;" (6) Mills Memorial Home is an existing corporation chartered by the Superior Court of Chatham County, Georgia, June 19, 1925, as an eleemosynary corporation, for the purpose of establishing and maintaining a home for aged negroes; (7) the intervenors, Ottis Houston, Clarence Houston, and Mary Ellen Houston, are the sole surviving heirs at law of the testatrix.
At the hearing, Sol C. Johnson, one of the executors and trustees under the will, testified: Mills Memorial Home is the only concern in Savannah or Chatham County which takes care of aged colored people. An organization existed at one time which is said to have operated a home for old colored people in East Savannah; it owned property and solicited funds among the colored people and was commonly referred to as the "Old Folks Home." His information is that Mary Ellen Richardson was interested in that organization in some way, but he has no personal knowledge of such fact. He thinks that the Old Folk's Home was in existence in 1922 when the will was made, but is not sure when it became inactive.
Robert E. Scott, a witness for Mills Memorial Home, testified: He knew the testatrix; he was a member of the organization known as the Old Folks Home; it solicited funds among the colored people for the establishment of an Old Folks Home and acquired several lots in East Savannah. In 1927 it conveyed these lots to the Charity Hospital and Training School for Nurses, and was referred to in the deed as the "Old Folks' and Orphans' Home, sometimes the Colored Old Folks and Orphans Society in Savannah." He was not a member in 1927, but thought that they decided to sell because they couldn't do much with what resources they had. He does not know the official name of the concern, and the only thing he heard it called was the "Old Folks Home." All persons taken care of at Mills Memorial Home are colored, and there is no expense to them.
Walter S. Scott, a witness for Mills Memorial Home, testified that he had heard of the organization which owned property in East Savannah known as the "Old Folks Home;" and that they tried to raise money to build a home, but were never able to do so.
Mrs. Henry W. Hodge testified: She chartered, endowed, and erected the home known as Mills Memorial Home in Savannah, which takes colored people exclusively and without expense to them. The present income from the trust fund which she created is insufficient to support the home and it is a member of the Community Chest. When the home was started, it was self-supporting. She had heard that the colored people were trying to solicit money for the Old Folks Home, and she told them that, if they would buy one acre of land, she would build and equip the home. The colored people bought the acre of land on which the home is located. She saw the lots owned by the Old Folks Home in East Savannah, but there were no buildings on them.
After considering the will and the evidence the court found as follows:
"(1) The bequest of one-half of the net estate to Second Baptist Church, colored, a corporation, is sustained.
"(2) The bequest for the benefit of `An Old Folk's Home,' contained in the 5th item of the will of the testatrix, was a bequest for the benefit of aged colored people, and as such, was a charitable bequest under the laws of Georgia.
"(3) When the testatrix made her will, there was in existence in Chatham County, Georgia, an organization created for the purpose of providing a home for aged colored people, which was commonly referred to as `An Old Folk's Home,' of which the testatrix was a member and to which she contributed. This organization had ceased to exist when the testatrix died.
"(4) It was the intention of the testatrix, expressed in item 5 of her will that, in the event that either of the beneficiaries therein named should be unable to take the legacy, there should be no lapse, but that her trustees should make such disposition of the legacy as would best carry out her intent.
"(5) For this reason, and because the bequest to `An Old Folk's Home' was a charitable bequest under the laws of Georgia, no intestacy exists, and the intervenors, Ottis Houston, Clarence Houston, and Mary Ellen Houston, are not entitled to take the legacy left for the benefit of `An Old Folk's Home.'"
The intervenors, Ottis Houston, Clarence Houston, and Mary Ellen Houston, filed a motion for new trial, based on the usual general grounds only, which was overruled, and the exception is to that judgment.
The only question presented for determination by the writ of error is whether the will of Mary Ellen Richardson created a valid charitable trust by the use of the language, "for the benefit of . . `An Old Folk's Home.'" An affirmative answer will necessarily dispose of the present controversy, since it is not contended that the trial court's disposition of the one-half interest in the trust estate under the doctrine of cy pres (Code, § 108-202) was erroneous, provided there was no lapse of this legacy. The plaintiffs in error take the position that the designation of the beneficiary to this one-half interest in the trust fund, as "An Old Folk's Home," is not legally sufficient to create a charitable trust; that the language used is too indefinite and uncertain to be given effect, and even if effective, the home was not in existence at the time of the death of the testatrix; that, there being no residuary clause in the will, an intestacy resulted and there was a lapse as to this interest in the estate, which the plaintiffs in error, as the sole surviving heirs at law of Mary Ellen Richardson, are entitled to take by operation of law.
"A devise or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator." Code, § 113-815. "Equity has jurisdiction to carry into effect the charitable bequests of a testator, or founder, or donor, where the same are definite and specific in their objects, and capable of being executed." § 108-201. "When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention." § 108-202. Under the Code, the following are among the subjects declared to be proper matters of charity for the jurisdiction of equity: relief of aged, impotent, diseased, or poor people; and "other similar subjects, having for their object the relief of human suffering or the promotion of human civilization." § 108-203.
Relief of the aged is generally recognized as a proper object of charity (14 C. J. S. 447, § 447, § 16; 10 Am. Jur. 637, § 68), and specifically recognized as such by our Code, § 108-203. And the fact that poverty is not imposed as a condition to the receipt of benefits under such a charity does not invalidate the bequest. 3 Scott on Trusts, 1979, § 369.3. "Charity is not confined to the relief of poverty or distress, but has a wider signification, which embraces the improvement and promotion of the happiness of mankind." Barr v. Geary, 82 Ind. App. 5 ( 142 N.E. 622).
Certain principles to be followed by the courts in the construction of charitable bequests were laid down in the early case of Beall v. Fox, 4 Ga. 404, 427. It was there said: "It is a cardinal rule in the construction of wills to give effect to the intention of the testator, when the same can be done without violating any settled principle of the law. The authorities cited at the bar, in our judgment, establish the following propositions: that in the construction of charitable bequests, the court will be liberal, so as to carry into effect the intention of the testator; that where the charitable intent can be discovered from the will, a court of equity will carry such intent into execution, and support the charitable purpose; that the court will not suffer an equitable interest to fail for want of a trustee to support it; that it never has been considered as an objection to a charitable use, because it was general, and in some respects indefinite, unless there was an uncertainty as to the amount intended to be given, or the general object of the use was of so uncertain and indefinite a character, that it could not be executed; that a court of equity has an inherent jurisdiction in cases of charitable bequests and devises; and that cases of charity in the courts of equity in England were held valid, and executed independently of, and previous to the Statute of 43 Elizabeth." And in Beckwith v. Rector c., 69 Ga. 564, 569, 570, it was held: "The rules of charitable trusts, in their establishment and administration, are very different from those that are applicable to private trusts, in giving effect to the intention of the donor and in establishing the charity. . . But if a gift is made for a `public charitable purpose,' it is immaterial that the trustee is uncertain or incapable of taking or that the objects of the charity are uncertain and indefinite, still it will be sustained. A public charity begins where uncertainty in the recipient begins. Courts look with favor upon such trusts, and take special care to enforce them, to guard them from assault, and to protect them from abuse. `Charity in thought, speech and deed, challenges the admiration and affection of mankind.' `Christianity teaches it as its crowning grace and glory, and the inspired apostle exhausts his eloquence by setting forth its beauty and the nothingness of all things without it.'" In this connection, see also Newson v. Starke, 46 Ga. 88; White v. McKeon, 92 Ga. 343 ( 17 S.E. 283); Huger v. Protestant Episcopal Church, 137 Ga. 205 ( 73 S.E. 385): Bolick v. Cox, 145 Ga. 888 ( 90 S.E. 54); Egleston v. Trust Co. of Ga., 147 Ga. 154 ( 93 S.E. 84); King v. Horton, 149 Ga. 361 ( 100 S.E. 103); Hodgson v. Hodgson, 150 Ga. 51 ( 102 S.E. 525); Goree v. Georgia Industrial Home, 187 Ga. 368 ( 200 S.E. 684); Moss v. Youngblood, 187 Ga. 188 ( 200 S.E. 689); Perkins v. Citizens Southern Nat. Bank, 190 Ga. 29 ( 8 S.E.2d 28); 163 A.L.R. 784.
Under the foregoing authorities, it cannot be said that the bequest here under consideration was too indefinite and uncertain to be executed. From a consideration of the entire will and the extrinsic evidence introduced at the hearing, it is apparent that the devise of one-half of the trust fund for the benefit of "An Old Folk's Home" was not intended for the benefit of any particular institution or individual, but was a devise or bequest to a general charitable use, the beneficiaries being such old colored people as might from time to time become inmates of a home for old colored people located at Savannah, Chatham County, Georgia. The evidence shows that at the time the will was executed there was an organization in existence in Savannah, Chatham County, Georgia, having for its purpose the purchase of property on which it desired and expected to erect and maintain a home for old colored people in or near Savannah; that the testatrix was a member of this organization, which was commonly referred to among the colored people as "The Old Folk's Home;" that this organization was unable to carry out its original plans and conveyed its property to the Charity Hospital at Savannah in 1927, soon after Mills Memorial Home was chartered (in 1925) as an eleemosynary institution having as its purpose the establishment and maintenance of a home for aged negroes; and that the latter institution was being operated as an old folk's home for colored people when the testatrix died October 9, 1929.
The trial judge very clearly expressed the view that we have of this case when in his judgment he said: "It is the opinion of the court that the purpose of the bequest was to provide a home for old folks and, being the bequest of a colored woman, would reasonably be construed to mean `An Old Folk's Home' for colored people. . . At the time the will was drawn there was an Old Folk's Home for colored people holding property in East Savannah, in process of organization, of which testatrix was a member. It was very probable that testatrix had in mind the Old Folk's Home to be established in East Savannah at the time the will was drawn. and being a member of the organization, very probably knew of the construction of the Mills Memorial Home and its purposes and for that reason concurred in the abandonment of the original plan for building an old folk's home for colored people in East Savannah. The Mills Memorial Home having succeeded to the original idea for an Old Folk's Home for colored people, she could very well have left this provision in the will so that the bequest would go to the Mills Memorial Home as a refuge for aged colored people — provided there was a failure of issue of testatrix. Under the law, the provision of the will takes effect from the date of the death of the deceased (Code, § 113-105). At that time, according to the evidence, Mills Memorial Home was `An Old Folk's Home' constructed, endowed, and in operation, a charitable institution furnishing free of charge a very nice home for aged colored people. This bequest was a generous act on the part of testatrix, as was the construction of the Mills Memorial Home and its endowment by Mrs. Hodge. These two persons were far removed in the common affairs of life, but were each motivated by the same spirit of helpfulness to those who are not as fortunate as they, and it is a happy coincidence that this fund coming from this colored woman, may be used to supplement the trust fund of Mrs. Hodge — a generous friend of the needy and unfortunate — to help support a fine institution that well cares for and supports, aged, indigent, and helpless colored persons."
We think that this case is controlled by Goree v. Georgia Industrial Home, supra. In that case the testator provided in a codicil to his will that one-half the balance of his estate was to be paid to "the governing authorities of the Central Howard Association, same being an Orphans' Home located at Macon, Georgia." In a petition for direction it was alleged that there was no such organization or institution in the City of Macon or Bibb County, Georgia, but that one Mrs. McGann, who resided near Atlanta, was carrying on certain charitable work under the name of Central Howard Association; that the place where she lived appeared to be equipped to care for orphans, but had little or no facilities; and that the testator had contributed to this organization over a period of years. Certain persons, as heirs at law of the testator, filed an answer and cross-petition claiming that the legacy to the "non-existent Central Howard Association" had lapsed. On exceptions to the judgment sustaining the motion to dismiss the answer and cross-petition, this court held: "1. It is apparent from the entire will and codicil that the bequest "to the governing authorities of the Central Howard Association, same being an Orphans' Home located at Macon, Georgia,' was intended as a charitable trust for the benefit of orphans as a class, and that the designated `governing authorities' were merely to perform the office of trustee. 2. Such being the general charitable intention of the testator, the bequest was sufficiently definite and specific to be capable of execution."
The decision in the present case is not in conflict with the rulings made in Bramblett v. Trust Co. of Ga., 182 Ga. 87 ( 185 S.E. 72), relied upon by the plaintiffs in error. There, only "gentlewomen" were designated as the beneficiaries. The devise was held to be void for indefiniteness, and not a charitable bequest. The trust there would have applied to all women in the world, of whatever race, station, age, or class, and regardless of their wealth or need; provided only they were "gentlewomen," whatever that may have implied.
It is insisted by the defendants in error that the testatrix gave her executors in their capacity as trustees ample authority to apply the trust funds to any other similar object of charity in order to carry out her charitable intent; but since the executors in their capacity as trustees have declined to exercise such power, if it was in fact given by the will, and have applied to a court of competent jurisdiction for direction, it becomes unnecessary to pass upon this question.
Upon application of the principles announced, we think that the trial court properly held that the will created a valid charitable trust, not too indefinite or uncertain to be enforced by a court of equity, and therefore did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur, except Duckworth P. J., and Wyatt, J., who dissent.