
    VALIDITY OF A BEQUEST FOR. A PUBLIC SCHOOL BUILDING.
    Common. Pleas Court of Union County.
    Rockwell et al v. Blaney et al.
    Decided, January 3, 1910.
    
      Schools and School Districts—De Facto Board of Education—Office of the Boa/rd—Bequest for a Public School Building—Character of Such a Bequest—Who Constitute the Cestui que Trust—Section 3915—Unconstitutionality of a Law for the Creation of a Special School District.
    
    1. A school district created hy special act of the General Assembly, is a de facto district and the board of education elected therein and acting as such is a de facto board.
    2. A de facto board of education may accept a bequest made to it by will for school purposes under authority of Section 3975, Revised Statutes.
    3. A bequest to a board of education for school purposes is a trust for charity, and should be liberally construed to the end that the intention of the doner may be carried out.
    4. A bequest to a board of education “for the purpose of erecting a public school building in and for the benefit of said school district” is a bequest in which the people of that district are the cestui que trust.
    
    5. No trust will fail for the want of a trustee.
    
      Thomas E. Powell and E. W. Potter, for plaintiffs.
    
      J. L. Cameron and Frank Ballinger, for defendants.
   Duncan, J.

The plaintiffs are the next of kin and heirs at law of one Samuel Ryan, who died testate; June 27, 1905, leaving no issue of his body or adopted child or legal representatives of either, and this suit is brought by them for the construction of the following item of said will, viz.:

“Item 6. The residue of my property, both real and personal, I give, devise and bequeath to the board of education of Jerome special school district, which district lies in Union and Delaware counties, for the purpose of erecting or contributing in the erection of, a public school building in and for the benefit of said school district, provided, and this devise and bequest is made upon the express condition that my friends, William L. Blaney and A. Lee Seeley, shall be members of a committee to supervise the erection of and payment for such said school building.”

The said Jerome special school district was created by special act of the General Assembly passed March. 15, 1898, found in 93 O. L. at page 456, and though never declared unconstitutional by any court, it may be considered as such in aid of this discussion in view of the recent holdings of our Supreme Court in° respect to like legislation. State, ex rel, v. Spellmire et al, 67 O. S., 77.

This will was executed May 1st, 1905, and the testator died June 27, following. On June 28th, 1906, a new district was formed under the general laws out of the same territory, comprising the old district as it stood at the time this will was executed, with ‘the exception of about seventeen acres on which one family resided was not included, and has since been organized under the name “Jerome special school district,” and the board of education elected therein was declared the successor of the old board with all its rights and responsibilities, and has had the control and management of the schools thereof, and their finances from that to the present time and is now here claiming said bequest.

In the meantime, from the formation and organization of the district under the special act, the board then in control conducted the schools therein, levied the taxes, hired and paid the teachers, and did all other things necessary and proper in the premises in relation thereto. At the time of the execution of the will there was one school house in the Delaware county part of the district and two in the Union county part, and it was necessary to use a rented room in addition, and altogether there were four primary schools, one intermediate and one high school. The testator resided near the center of the district and knew these facts and the need of another building to accommodate the schools. The executors of the will are William L. Blaney and A. Lee Seeley, mentioned in said item 6, and are willing to act on a committee for the erection of the building thus provided for.

It is hot contended that a board of education of a legally constituted district has no capacity to accept a bequest made to it by will, under authority of Section 3975, Revised Statutes, but the question submitted here is whether there was a competent trustee to take or any cestui que trust to benefit under the peculiar facts of this case.

This board of education, whether under the special act or the general law, was nothing more than an agent of the state for the education of its youth and whether that agent was properly appointed or not, and whether or not the district over which it exercised jurisdiction was properly created, was a matter between the state and this board, and can not be called in question collaterally. State v. Alling, 12 O., 16, 20; Ex Parte Strang, 21 O. S., 610; State v. Gardner, 54 O. S., 24.

Conceding that this special act was unconstitutional, though not declared so, the district was a de facto district, and the board conducting the schools therein was a de facto board. This is necessarily so as to all arms and branches of the government. To hold otherwise would be to reduce government to anarchy without warning and without protection by one fell swoop. Says Judge Spear in State v. Gardner, supra:

“It seems to be conceded that, on grounds of public policy, one occupying an existing de jure office should be regarded as an officer de facto, although his appointment thereto is pursuant to an unconstitutional statute. Does any reason exist why the same public policy will not require that one occupying, with general acceptance, an office which the General Assembly has power to create, should likewise be adjudged an officer de facto, although in the exercise of the powers by the assembly, constitutional requirements have not been observed?”

A fortiori, when for many years previous identical legislation had been held constitutional by our Supreme Court ? See State, ex rel, v. Shearer et al, 46 O. S., 275. The suspension of the order of ouster by our Supreme Court in State, ex rel, v. Beacom et al, 66 O. S., 491, 508, and in State, ex rel, v. Spellmire et al, 67 O. S., 77, 90, could have been granted upon no other theory than that the government was a de facto government and its officers de facto officers.

Trusts created by gift in the interest or promotion of education are recognized everywhere as trusts for charity. Bispham’s Equity (4th Ed.) Sections 119 and 120; Pomeroy’s Equity Jurisprudence (3d Ed.), Section 1023; Trustees McIntire, etc., v. Zanesville Mfg. Co. et al, 9 O., 203; Zanesville Mfg. Co. v. Zanesville, 20 O., 483; John McIntire’s Adm’s et. al v. Zanesville, 17 O. S., 352; Gerke, Treas., et al v. Purcell, 25 O. S., 229; Davis v. Barnstable et al, 154 Mass., 224; Sears et al, Adm’s., v. Chapman et al, 158 Mass., 400; Skinner v. Harrison Twp., 116 Ind., 139 (2 L. R. A., 137); Crerar et al v. Williams et al, 145 Ill., 625 (21 L. R. A., 454); Webster et al, Exr’s, v. Wiggin et al, 19 R. I., 73 (28 L. R. A., 510); Dodge v. Williams, 46 Wis., 70; De Camp v. Dobbins, 29 N. J. Eq., 36; Clement v. Hyde, 50 Vt., 716; Birchard v. Scott, 39 Conn., 63; Russell v. Allen, 107 U. S., 163; and many other eases and in many other states.

Trusts for charity are subject to the American cy pres doctrine, a rule of property in this state, which allows them to' be liberally construed and operated to the end that the intention of the donor may be carried out, when impossible or impracticable to the letter, as near as can be done under all the circumstances. They are highly favored by the law and should receive such construction as will tend to preserve rather than destroy them. Trustees McIntire, etc., v. Zanesville Mfg. Co. et al, 9 O., 203; Zanesville Mfg. Co. v. Zanesville, 20 O., 483; Landis et al, Exr’s, v. Wooden et al, 1 O. S., 160; Miller v. Teachout, 24 O. S., 525; Board of Education, etc., v. Ladd, Adm., 26. O. S., 210; Treas. Tract. Soc. et al v. Atwater et al, 30 O. S., 77. See also Skinner v. Harrison Twp., 116 Ind., 139 (2 L. R. A., 137).

Now, approaching the construction of this item of the will with this understanding, it is clear that the intention of the testator was not to give this .part of his estate to the board of education for its benefit or for the benefit of the school district as an entity. Though the purpose stated is the "erection of a public school building in and.for the benefit of said school district,” the meaning of this phrase mpst be reached not only by considering the words used, but as well the scheme provided by the state for the education of its youth and the facts and circumstances existing at the time the will was executed in reference to said district and the need of another building therein for school purposes. As already stated, a board of education is an agent of the state to exercise a public function, 'that of controlling and conducting the schools for the district, that is all, and the so-called district is nothing more than the territory over which this jurisdiction extends. The exercise of this jurisdiction affects the people direct and is solely for their benefit. It does not touch the land, except to tax it as a means of revenue, which is incidental to the primary purpose of conducting the schools. The land has the burdens and the people the benefits. So, while the use of this bequest may lighten the burdens of the land, it operates no less a benefit to the people. To my mind the "district” was referred to by the testator as a means of designating the objects of his bounty, and the "board of education” as a means or instrumentality by which his bequest might be given effect. Why then are not the people within the territory of this district the real cestui que trust of this bequest? This conclusion would certainly follow. In point is Board of Education, etc., v. Ladd, Admr., et al, 26 O. S., 210, and Atty.-Gen. v. Briggs, 164 Mass., 561.

And it is as equally certain within the reasoning of this rule that any change or even complete extinguishment of the district would not defeat the trust or interfere with its validity or taking effect. John McIntire’s Admrs., et al v. Zanesville, 17 O. S., 352; Board of Education, etc., v. Ladd, Admr., et al, 26 O. S., 210; Atty.-Gen. v. Briggs, 164 Mass., 561; John v. Smith, Excr., 30 Or., 494.

Having found the real cestui que trust of this bequest, it matters not whether a competent trustee, or any at all, was named to administer the trust. A trust never fails for the want of a trustee, for it is within the general equity powers of a court of chancery to appoint one where that is all that is necessary to be done to make the trust operative. And the rule is so elastic that it permits a trustee named to acquire capacity to take by subsequent incorporation (Trustees McIntire, etc., v. Zanesville Mfg. Co. et al, 9 O., 203; Landis et al, Excrs., v. Wooden et al, 1 O. S., 160; Williams et al v. Presb. Soc. et al, 1 O. S., 478; Somers v. Cyrenius, 39 O. S., 29; John v. Smith, Excr., 30 Or., 494; Sears et al, Admrs., v. Chapman et al, 158 Mass., 400; Skinner v. Harrison Twp., 116 Ind., 139 [2 L. R. A., 137] ; Sailors’ Snug Harbor, 28 U. S., 3; Russell v. Allen, 107 U. S., 163; and many other cases and many other states). So, whether the board under the special act had capacity to take the bequest makes no difference. The bequest is valid in either event. The present board has capacity, and whether as successor of the old board, or under the statute, or both, is exercising the sole jurisdiction appropriate to the end sought to be accomplished by this item of the will, and is entitled to administer this trust.

Entertaining these views, I hold the bequest valid for the benefit of the people of said district, and that the present board of education may take the same for use in the erection of or in contributing to .erect a public school building in said district under the condition named in said item 6.

Exceptions; bond in case of appeal, $300.  