(That act has not been put at issue in this case.) In Smith v. Thompson, 266 Ill.App. 165, 1932 WL 2801, at *1 (1932) ( Smith ), the mayor of Chicago organized a fund with the stated purpose of providing immediate relief for sufferers of a flood of the Mississippi River. A man who donated $50 to the fund brought suit, alleging that the mayor diverted some of the funds raised to his private and political purposes.
[4] It is also generally established, and has been accepted as the law in this state, that the primary right to enforce a charitable trust resides in the attorney-general. ( People v. Cogswell, 113 Cal. 129 [45 P. 270, 35 L.R.A. 269]; O'Hara v. Grand Lodge, etc., 213 Cal. 131 [ 2 P.2d 21]; Dickey v. Volker, 321 Mo. 235 [ 11 S.W.2d 278, 62 A.L.R. 858]; Smith v. Thompson, 266 Ill. App. 165, 168.) In Dickey v. Volker, supra, page 281, it is said: "An individual member of the public has no vested interest in the property or funds of the trust.
that “it is the exclusive function of the [a]ttorney [g]eneral to correct abuse in the administration of a public charity by the institution of proper proceedings” [emphasis added] ); and the donor himself has no standing to enforce the terms of his gift when he has not retained a specific right to control the property, such as a right of reverter, after relinquishing physical possession of it. See, e.g., Marin Hospital District v. State Dept. of Health, 92 Cal.App.3d 442, 448, 154 Cal.Rptr. 838 (1979) (fact that charity is bound to use contributions for purposes for which they were given does not confer to donor standing to bring action to enforce terms of gift). As a matter of common law, when a settlor of a trust or a donor of property to a charity fails specifically to provide for a reservation of rights in the trust or gift instrument, “ ‘neither the donor nor his heirs have any standing in court in a proceeding to compel the proper execution of the trust, except as relators.’ ” Smith v. Thompson, 266 Ill.App. 165, 169 (1932), quoting 2 J. Perry, Trusts and Trustees (7th Ed.1929) § 732a, pp. 1255–56; see Wilbur v. University of Vermont, supra, 129 Vt. at 44, 270 A.2d 889 (breach of trust “creates no right in the donor's heirs to enforce a resulting trust”); Hagaman v. Board of Education, 117 N.J.Super. 446, 454, 285 A.2d 63 (1971) (heirs of settlor generally cannot enforce charitable trust). “There is no such thing as a resulting trust with respect to a charity.... Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control.”
As a matter of common law, when a settlor of a trust or a donor of property to a charity fails specifically to provide for a reservation of rights in the trust or gift instrument, "`neither the donor nor his heirs have any standing in court in a proceeding to compel the proper execution of the trust, except as relators.'" Smith v. Thompson, 266 Ill. App. 165, 169 (1932), quoting 2 J. Perry, Trusts and Trustees (7th Ed. 1929) § 732a, pp. 1255-56; see Wilbur v. University of Vermont, supra, 129 Vt. 44 (breach of trust "creates no right in the donor's heirs to enforce a resulting trust"); Hagaman v. Board of Education, 117 N.J. Super. 446, 454, 285 A.2d 63 (1971) (heirs of settlor generally cannot enforce charitable trust). "There is no such thing as a resulting trust with respect to a charity. . . . Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control."
The allegation of the intervenors was that they had contributed funds to Holden Hospital Corporation and it does not appear from the record that there is any other ground upon which their standing to take part in this case might be predicated. The Appellate Court has taken the view that the interest of a donor to a trust or a member of the public concerned with its work is insufficient to give standing, ( Smith v. Thompson, 266 Ill. App. 165; People ex rel. Courtney v. Wilson, 327 Ill. App. 231, Art Institute of Chicago v. Castle, 9 Ill. App.2d 473,) although there is dicta to the contrary in McGee v. Vandeventer, 326 Ill. 425. We agree with the well supported view (Restatement of Trusts, Second, § 391; 2a Bogert on Trusts, secs. 414, 415) that the Attorney General is usually the proper party to represent the public's interest in the trust.
Therefore, properly read, Associate Alumni held only that, where a donor has retained significant rights to control the charitable gift, it has standing to seek enforcement of the terms of the gift. Significantly, others who have considered Associate Alumni have similarly concluded that it represents an exception to the general rule restricting standing to the Attorney General (see, Smith v. Thompson, 266 Ill. App. 165, 180; Charities, N Y Jur2d § 41 at 236). Thus, contrary to the majority's position, Associate Alumni does not establish donor standing qua donor.
Saarinen, the sole appellant, conceded that a proceeding to enforce or interfere in a charitable trust must be brought on behalf of the People by the State's Attorney or the Attorney General, and that he could not have filed his own complaint to accomplish this purpose. This court said the authorities are fully in accord on that proposition, citing McGee v. Vandeventer, 326 Ill. 425, People ex rel. Smith v. Braucher, 258 Ill. 604, Attorney General v. Newberry Library, 150 Ill. 229, and Smith v. Thompson, 266 Ill. App. 165. In Kerner v. Thompson, 365 Ill. 149, the court held that the right of the State, acting through the Attorney General, to interfere in the handling of a public charitable use or to prevent or correct abuses, cannot be denied.
Saarinen concedes that a proceeding to enforce or interfere in a charitable trust must be brought on behalf of the people by the state's attorney or attorney general and that he could not have filed his own bill of complaint to accomplish that purpose; and the authorities are fully in accord on that proposition. McGee v. Vandeventer, 326 Ill. 425; People ex rel. Smith v. Braucher, 258 Ill. 604; Attorney General v. Newberry Library, 150 Ill. 229; Smith v. Thompson, 266 Ill. App. 165; Bogert on Trusts and Trustees, vol. 2, Sec. 414; and Scott on Trusts, Vol. 3, par. 391 on "Who can enforce charitable trusts." It follows that since the cause was fully and fairly tried upon a record comprising nearly 4,000 pages and innumerable exhibits, and the state's attorney having refused to appeal from the decree entered because of his entire satisfaction therewith, nothing remains in this sole appeal by Saarinen except his request for additional compensation or damages, and the claim of his counsel "that Saarinen's reasonable solicitor's fees should have been charged against the fund," upon the theory that the language of the will produced a dispute as to its meaning.
Two of the Fiske heirs, Maud Kennicott Reid and Mabel B. Gleason, answered asking distribution of the bequests in question to the heirs and denying that the case was one for application of the cy pres doctrine. The Attorney General, who is a proper party to support a legacy to a public charity ( Attorney General v. Newberry Library, 150 Ill. 229, 236; Smith v. Thompson, 266 Ill. App. 165, 168), answered, as did the Infant Welfare Society of Chicago, asserting that its work was more nearly similar to that of plaintiff than any other charity in Chicago and that the fund should be awarded to it. Upon trial the chancellor held that the doctrine of cy pres was not applicable and decreed that the fund be distributed to the Fiske heirs.