
    DISPOSAL OF PROPERTY DEVISED FOR. USE AS A PARSONAGE.
    Common Pleas Court of Montgomery County.
    First German Reformed Church v. Weikel et al.
    Decided, September, 1908.
    
      Wills — Devise of Property Por Use as a Parsonage — Right of the Church to Sell and Reinvest Proceeds — Disposition of Surplus — Gifts for Pious Uses — Cy Pres — Quieting Title — Seeing to Application of Proceeds.
    
    1. The fact that a gift is made to a particular religious denomination does not deprive it of its character as a public charity or eliminate it from the rule which applies to gifts for pious uses.
    2. Where the gift is in the form of a parsonage, and the property enhances greatly in value and becomes unsuitable for its original purpose by reason of the encroachments of business, the church may sell the property and invest so much of the proceeds as is nécessary to provide a new parsonage in another locality, and may treat the balance remaining on hand as a maintenance fund for keeping the newly acquired property in repair' and making necessary improvements and paying taxes.
    3. The purchaser of property thus sold under the direction of the court is not bound to see to the application of the proceeds.
    
      Kenedy, Munger .& Kenedy, for plaintiff.
   SnedikeR, J.

This case comes before the court on a petition for the construction' of certain clauses of the will of Catherine Weikel, and for the further purpose of quieting the title to certain property now held hy the plaintiff church. The clause of the will asked to be construed is as follows:

“I give, devise and bequeath to the First German Reformed Church of the city of Dayton, Ohio, all that portion of in-lots numbered 223 and 224 as designated in the plat of the city of Dayton, in .the county of Montgomery, state of Ohio, being the same premises conveyed by John Sheets and Savila Sheets, his wife, to me by deed dated October 15, 1864, recorded in Book T, No. 3, pages 400 and 401 of the records of Montgomery connty, Ohio (reference being had to said deed for .a more particular description of said premises), to be by said church occupied as a parsonage for the residence of the pastor of said church perpetually, or in case a change of location be deemed advisable at any time, the same maj’’ be sold and the proceeds appropriated to another parsonage. ’ ’

Doubt is entertained by plaintiff in these respects:

1. Plaintiff is in doubt as to the true construction of the clause therein as follows: “To be by said church occupied as a parsonage for the residence of the pastor of said church perpetually, or in case a change of location be deemed advisable at any time, the same may be sold and the proceeds appropriated to another parsonage.” ■

2. Plaintiff is in doubt as to whether the entire proceeds, on a sale being had of said premises, must be used in the purchase and erection of another parsonage, or whether a portion of said proceeds may be used as a fund for maintaining such other parsonage, for repairing and improving same, and for paying the taxes, insurance and other expenses thereof, or whether some other application of said proceeds is required under the will.

3. Plaintiff is in doubt as to whether a purchaser of such real estate is required to see to the application of the purchase money.

The testimony in the case showed that for .a period of more than twenty-one years the subject of the above devise has been in continued use by said church as a parsonage, and is now so used. At the time the church entered into possession the part of the city in which it is located was a residence district; but at this time it is in the very business center of the city, so that instead of being as it then was, a desirable site for the purpose intended, noise, dirt and other improper surroundings have rendered it almost totally unfit therefor.

Further, the value of the property at first occupancy was about $3,000. Since then the growth of the city and the use of surrounding property for commercial purposes has enhanced its worth, so that now it should bring from $20,000 to $25,000.

The plaintiff church has a membership of about 700 persons. and recognizes the fact that this parsonage is both undesirable for its intended use, and is an expensive luxury.

The purpose of this proceeding, if it may be done, is to sell the parsonage and rebuild at less than the selling price in a proper location, using the balance of the fund created by the sale and left after building or buying in such a way as to carry out the intention of the testatrix.

It appears also as’ a matter of fact in the case that an investment*of the amount of the value of this property in a parsonage for the use of the pastor of said church, would impose upon him the burden of maintaining an establishment far in excess of what his income as such pastor would warrant.

Our first inquiry is as to the character of the gift. The language of the will is as before quoted. Undoubtedly it is a gift to pious uses.

In the 8 La., at page 246, in the case of State of Louisiana et al v. Executors of John McDonogh and the City of New Orleans, the court defines legacies to pious uses in the following language :

“Legacies to pious uses are those which are destined to some work of piety, or object of charity, and have their motive independent of the consideration which the merit of the legatees might procure to them. In .this motive consists the distinction between these and ordinary legacies. The term pious uses includes not only the encouragement and support of pious and charitable institutions, but those in aid of education and the advancement of science and the arts. They are viewed with special favor by the law and with double favor on account of their motives for sacred usages and their advantages to the public weal.”

In the 14th Allen, at page 556, in the ease of Jackson v. Phillips et al, the court defines a charity as follows:

“A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in .the gift itself, if it is so described as to show that it is charitable in its nature.”

In the 28th Penn., page 85, the case of Price et al v. Maxwell et al, ithe court say:

“If we were to attempt a definition which would embrace all gifts for charitable uses, we should adopt the language .of the eminent patriarch of our profession, Mr. Binney, as expressed in his argument in Vidal et al v. The City of Philadelphia, whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense — given from these motives and to these ends — free from the. stain or taint of every consideration that is personal, private or selfish,’ is a gift for charitable uses according to that religion from which the law of charitable uses has been derived.”

It is apparent from the foregoing that the gift • in question is a public charity; and the fact that the gift is to a particular denomination does not deprive it of its public character.

In the 71st Conn, at page 135, Mach’s Appeal from Probate, the court uses the following language:

‘ ‘ The maintenance of religious services in accordance with the views of any denomination of Christians, is a public charity within the meaning of our statute of charitable uses. We recognize the right of every man to establish foundations and charities, to promote his ..own or any other peculiar religious opinions. ’ ’

In the 2d Weekly Law Bulletin, at page 168, in the case of Gilmour v. Pelton, the court say:

“A Presbyterian church is no less a place of worship because Baptists, Catholics, Unitarians or Jews may not choose to worship therein. And our Supreme Court in discussing á similar ease, says: ‘For the purpose of determining the public nature of the charity, it is not material through what particular form the charity may be administered; if it is established and maintained for the benefit of the public, and so constituted that the public can make it available, that is all that is required. ’ 25 O. S., 224. ”

In the 69th Ga., page 570, the case of Beckwith, Trustee, v. The Rector ,Wardens and Vestrymen, etc., the court say:

“The support and propogation of religion is clearly a charh table Use, and this includes gifts for- the- erection-, maintenance and repair of church edifices of worship, the support of the ministry, etc., 2 Pom. Eq., 587-8; Law of Trusts (Tiffany & Bullard), 232, 236-39-40.”

Perry on Trusts, Section 701, contains the following:

“Both before and since the statute (referring to the statute of Elizabeth), gifts for the advancement, spread, and teaching of Christianity, or for the convenience and support of worship, or of the ministry have been held to be charitable. ’ ’

These authorities further satisfy the court that the gift of this parsonage is a charity. That having been ascertained, what becomes of the fund realized on the.sale of this property if a sale is had under the power given in the will!

In addition to the facts already stated, it appeared from the evidence that a suitable parsonage for this church should not cost more than $10,000. There would remain, therefore, a balance, after the purchase of such a parsonage, a fund of at least $10,000 or more to be applied and disposed of. The question is, how shall this be done? If at all it must be under the doctrine of cy pres.

By this doctrine, “Where the literal execution of the trusts of a charitable gift is inexpedient or impracticable, a court of equity will execute them, as nearly as it can, according to the original plan. ■ The general principle upon which the court acts is that, if the testator has manifested a general intention to give to charity, the failure of the particular mode in which the charity'is to be executed shall not destroy the charity; but, if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode can not be accomplished. ” Eaton on Equity, p. 393.

This doctrine of charitable trusts as applying to the jurisdiction of equity is in force at least in its essential features in the state of Ohio. This is illustrated in the case of McIntire’s Admrs., v. the City of Zanesville, 17 O. S., p. 352. Also by the ease of Francis LeClercq et al v. Trustees of the Town of Gallipolis, 7 Ohio, p. 218; in that case the court by way of quotation says:

“If the object .of the creation, of the trust ban be .attained, the court of chancery will enforce its execution. Where circumstances are so changed, that the direction of the donor prescribing the use, can not be literally carried into effect, the Legislature or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit by the application of the doctrine of cy pres. 7 Vern., 36, 490; 9 Vern., 405; 1 Vern., 248; 2 Cox, 365.”

In the 50th Mo., p. 167, Academy of the Visitation, v. Clemens et al, the court say:

“Where lands are vested in a corporation by devise for charitable purposes, and it is contemplated by the donor that the charity should last forever, the heirs can never have the lands back again. If it should become impossible to execute the charity as expressed, another charity will be substituted by the court so long as %e corporation exists.”

In Adams Equity (3d Am. Ed.), pp. 234-5, we find the following :

“If in a gift to charity the intended object ⅜ ⅜ ⅜ ceases to afford the means of applying the entire fund the presumed general object will.be effectuated by the doctrine of cy pres, i. e., a.n application to some other purpose, having regard as nearly as possible to the original plan.”

'In the case of John W. Harper v. The Central Trust & Safe Deposit Co., 8 N. P., 157, we find the following:

“It is not necessary that the object of the trust should cease entirely to exist, or that the express trust should become absolutely impossible of application before the doctrine of cy pres can be invoked. ’ ’

Lewin on Trusts, Vol. 2, p. 688, lays down the rule that: “The management of the trust may contravene the letter of the founder’s will, and yet on a favorable construction, be conformable to the intention. ’ ’

“Among the charitable trusts which have been most liberally construed and most uniformly sustained, have been those created for the promotion of religion and education.” Sowers v. Cyrenius, 39 O. S., 29.
“The great consideration which the law attaches to these legacies, controls tribunals in the interpretation of them, and has secured for their support a doctrine of approximation which is coeval with their existence.” 8 La., 246.

In the case at bar, if this property is sold, as it may be sold under the power given in the will and found in the clause already referred to, a fund is created which under the terms of the will should be reinvested in another parsonage. The needs of this church are such and the circumstances generally are such that the application of this whole fund to the purchase of a parsonage is wholly unnecessary and uncalled for. Whatever balance is left after satisfying the needs of the church by the purchase of ..a .proper parsonage comes within the rule here laid down by Adams and within the doctrine of cy pres as already defined by -the authorities quoted. A wise disposition of any surplus fund, therefore, would be its use for the, maintaining of the parsonage purchased, for repairing and improving the same, and for paying the taxes, insurance and other expenses thereon, and such use will be approved by the court.

The only remaining question on the part of counsel with reference to the will is as to whether a purchaser of the real estate in question is required to see to the application of the purchase money.

Lewin on Trusts, Yol. 2y p. 597, lays down the rule as follows :

“If a sale be directed, and the proceeds are not simply to be paid over to certain parties, but there is a special trust annexed, the inference is, that the settlor meant to confide the execution of the trust to the hands of the trustee, and not of the purchaser, and that the trustee therefore can sign a receipt. ’ ’

This rule is supported by the ease of Clyde v. Simpson et al, in the 4th O. S., 445.

Perry on Trusts, Yol. 2, Sec. 794, says:

“If a sale is directed, but the proceeds are not to be paid over to the cesluis que trust, but are to be held by the trustees upon some special trusts. In such case the implication is plain, that the settlor intended to confide the execution of the trust tq the trustees, and that they have power and authority to receive the trust fund and to give receipts. Power of sale and reinvestment relieves the purchaser of any burden of looking after the application of the money.”

“When the object of the trust is defined, but the purchase money is to he reinvested upon trusts requiring time and discretion, the purchaser is not bound to see to the application thereof.” 78 Va., 313.

“Where trustees under a will have power to sell, in their discretion, and re-invest the proceeds on the same trusts, a purchase^ from them is not bound to see to the application of the purchase money.” 58 Md., 53;

It is apparent from the above authorities that a purchaser of real estate devised by defendant’s testatrix to .this church is not required to see to .the application of the purchase money.

.With reference -to’.the quieting of the title to said real estate, the court being satisfied that the same should be done, it is accordingly ordered.

Let an entry be drawn in conformity to these findings of the court.  