
    JAMES F. MATHER vs. JAMES T. KNIGHT et al.
    
      Charitable Gift — Trust Not Created — Repugnant Power— Educational Purpose — Declaration of Rights.
    
    A devise and bequest to the Convention of the Protestant Episcopal Church in the Diocese of Maryland, for the use of the Trustees of the Hannah More Academy, was valid, it not creating a trust, but being a gift to the convention for the use of the academy, which latter was a diocesan school and one of the agencies of the convention in carrying out one of its corporate objects and purposes. pp. 616-620
    A devise and bequest to the Convention of the Protestant Episcopal Church in the Diocese of Maryland, for the establishment, in a diocesan school, of a memorial “of such nature as” a person named should select, did not fail to take effect because of the death of such person without having made the selection, the power of selection conferred on her being a naked collateral power, repugnant to the estate devised and bequeathed to the convention, and therefore void. pp. 620, 621
    A testamentary gift to the Protestant Episcopal Convention of the Diocese of Maryland for the establishment of a memorial in a diocesan school, being a gift for educational purposes, is not subject to the provisions of Article 38 of the Declaration of Eights. p. 621
    
      Decided June 26th, 1923.
    
    Appeal from the Gireu.it Gourt No: 2 of Baltimore Oity (Stein, J..).
    
      Bill by James T. Knight and the Fidelity Trust Company, executors under the1 will of Emilia Mather, deceased, against The Convention of the: Protestant Church in the Diocese of Maryland, James F. Mather, and others, for the construction of said will and for other relief. From the decree rendered, said James F'. Mather appeals.
    Affirmed.
    The cause was argued before Boyd, O. J., Briscoe. Thomas, Frxer, and Orfftt, JJ.
    
      Horton S. Smith, with whom was Robert J. Beacham on the brief, for the appellant.
    
      Redmond C. Stewart, with whom were Edward N. Rich, William. L. Henderson and Stewart & Pearce on the. brief, for the Convention of the Protestant Episcopal Church in the Diocese of Maryland, one of the appellees.
   Thomas, J.,

delivered the opinion of the Court.

Miss Emilia Mather, of Baltimore City, Maryland, died oil the 6th of August, 1918, seised and possessed of a large estate, and leaving a last will and testament, a codicil thereto, dated December 5th, 1914, and a second codicil thereto, dated June 8th, 1917, which will and codicils were duly admitted to probate by the Orphans’ Court of Baltimore City, and letters testamentary were granted to The Fidelity Trust Company and James T. Knight, the executors named therein. The seventh item of said will is as follows:

“Seventh: I give and bequeath unto my friend, Sallie Sprigg Morgan, wife of Rev. William Dallam Morgan, or in the event of her death, to her said husband, the sum of one thousand dollars, one-half thereof to be applied in her, or his, discretion for the use and benefit of the Maryland Branch of the Shut-In Society, and the other half for the Home for Incurables, situate at the corner of Guilford Avenue and Twenty-first Street, in Baltimore City.”

And by the third item of the second codicil the testatrix made the following devise and bequest:

“I do hereby give, devise and bequeath all the rest and residue of my estate of every kind and description and wheresoever situate, unto the Convention of the Protestant Episcopal Church in the Diocese of Maryland for the use of the Trustees of the Hannah More Academy for the establishment of a ‘Mather Memorial’ in the Hannah More Academy of such nature as Miss Anna L. Lawrence, the present principal, may elect and determine; provided, however, -that should I survive the said Miss Anna L. Lawrence or should she sever her connection with said Hannah More Academy before my death, then and in that event the aforesaid ‘Mather Memorial’ shall be of sucb nature as tbe Trustees of Hannab More Academy shall elect and determine.”

After having stated twoi administration accounts, the executors, on the 31st of March, 1921, filed in Circuit Court Mo. 2' of Baltimore City their bill of complaint against all the-parties interested in tbe further administration of the estate, including J.ames- Francis Mather, alleged to- be the only heir at law and next of kin of said testatrix, and a legatee under said will, the Convention of the Protestant Episcopal Church of the Diocese of Maryland, a body corporate, and the Trustees of the Plannah More Academy, a borv corporate, alleging that the plaintiffs were advised that the items of the will and codicil referred to above were of doubtful validity, and praying the court, among other things, to assume jurisdiction of the further administration of the estate, and to construe said provisions of the will and second codicil.

The- record contains the answer of Lames Francis Mather, consenting to the payment of- the legacy mentioned in the seventh item of the will, but alleging the invalidity of the-bequest and devise in the third item of the second codicil, and the .joint answer of the Convention of the Protestant Episcopal Church of the Diocese of Maryland, and the trustees of Hannah More Academy, asserting the validity of said item of the second codicil.

At the trial of the case in the court below, the Convention of the Protestant Episcopal Church of the Diocese of Maryland, hereinafter referred to as the Convention, and the Trustees of the Hannah More Academy, hereinafter called the Academy, offered in evidence the acts of the General Assembly of Maryland incorporating them., and several amendatory acts, and proved by the Right Rev. John G. Murray, bishop of th diocese mentioned, that he is the presiding] officer of the Convention and the president of the Academy; that the Trustees, of Hannah More Academy are selected by the Convention; that the Hannah More Academy is a diocesan school for girls, the object and purpose of which “is the education of young girls in the different departments of education”; that it is one of the agencies of the Convention for the carrying out of the purposes of its incorporation, and was accepted by the Convention as a diocesan school for girls in 1873, and is located and now in operation at Roister stown, in Baltimore County, Maryland; that Miss, Mather, the testatrix, was during her life very much interested in Hannah More Academy; that she died in August, 1918, and that Miss Lawrence, the principal of said school, mentioned in said will or codicil, who had been an invalid for about a year prior to her death, died on the1 4th of December, 1918; that the Convention and the Academy had been advised of and had accepted the1 devise and bequest contained in said codicil.

The court below decreed, among other things, that the bequest in the seventh item of the will and the devise and bequest in the third item of the second codicil were valid, and from that decree James E'raneis Mather has brought this appeal, which, while entered generally from the decree, seeks to have reviewed only that part of the decree sustaining the devise and bequest to the Convention.

The contention of the appellant is that the devise and bequest in question created a trust, the object of which is too vague and indefinite to be upheld, and further that it was a gift by the testatrix for the erection of a memorial in the Hannah More Academy to be selected by Miss Lawrence, and that .as Miss Lawrence died after the testatrix without having made the selection, a contingency not provided for in the codicil, the trustees of the Academy have no power to make the selection and the gift must, therefore, fall. He cites and relies mainly upon the cases of Maught v. Getzendanner, 65 Md. 527, and Hanson v. Little Sisters of the Poor, 79 Md. 434. In Maught’s case, the clause in question was “I give and bequeath and devise unto Rev. IT. G. Bowers, of Jefferson, Maryland, all the rest and residue of my estate, and desire him to use and appropriate the same for such religious and charitable purposes and objects, and in such sums and such manner as. will in his judgment, best promote the cause of Christ,” and the Court held that the testator did not intend Mr. Bowers to' take the property “for his. own individual benefit,” but intended him to have if. for the purposes stated in the will, and that such a trust was “too vag-uo and indefinite tO' be carried into effect” because the cesiuis que trust were not defined. The language quoted by the appellant from Hanson v. Little Sisters of the Poor, supra, is, “that a bequest to trustees for the benefit of a. vague and indefinite object is equally as invalid as an immediate bequest to such object,” but in that case the Court held that the principle thus stated did not apply to a bequest to “The Vestry of St. Mary’s Parish” to be applied by it to the maintenance of the parish school connected with the church, because tire school w:as “embraced within the corporate functions and work of the church.”

The Convention of tire Protestant Episcopal Church of the Diocese of Maryland was incorporated by the Act of 1840, eh. 67, which was amended by the Act of 1856, eh. 17, and the Act of 1878, ch. 403, provides, that the corporate powers and privileges theretofore conferred upon the Convention of the Protestant Episcopal Church of the Diocese of Maryland by the act amendatory of the original act. incorporating said Convention, “be and the same are hereby explained and extended so as to enable the said Convention to receive by gift, devise or otherwise, contributions in money, lands or other property, and to hold the same for burial grounds, church colleges, church or parish schools, for the support of missionaries or mission work, for building, adorning or repairing churches or mission chapels, and for such other general or special religions or charitable work or agencies "within the Diocese, and now or hereafter under the jurisdiction, control or sanction of said Convention, as may be designated by the donor,” &c. The Trustees of Hannah More Academy was incorporated by the Act of 1837, ch. 189, with power to receive and use certain devises and bequests under the will of Mrs. Ann ISTeilson, of Baltimore County, for the purpose of erecting and maintaining a school for the' education of girls to be called the Hannah More Academy, and with full power to regulate and superintend the affairs and interest of said school, “and also receive and hold, for the same purpose, any other estate, in lands, * * * chattels, monies, or effects that may he given, granted or bequeathed to them by any other person or persons whatsoever,” &c. In 1874 the General Assembly of Maryland passed a supplementary act (Act of 1874, ch. 15) to the act incorporating the Academy, which recites: “Whereas, by resolution of the Diocesan Convention of the Protestant Episcopal Church of the Diocese of Maryland * * the said Hannah More Academy was accepted and received as the diocesan school for girls; and whereas the said Convention, deeming it expedient that the present number of the hoard of trustees should he increased, and that the appointment of such additional trustees, as well as, the successors of the board of trustees hereinafter to be appointed, should be made by the said Diocesan Convention, * * * and whereas such resolution was passed upon the application and ■with the unanimous consent of the present board of trustees of said Hannah More Academy.” The first section of the act named the trustees and provided that they “and their successors shall thereafter be the body corporate known as ‘the Trustees of the Hannah More Academy’ and shall have and exercise all the rights and powers conferred on the trustees named in the act to which this is a supplement, and enjoyed by the present board of trustees.” By the second section of the act it is pr ovided that the bishop of the Protestant Episcopal Church in the Diocese of Maryland, and the assistant bishop thereof, if there be one, shall be ex officio members of the board of trustees of said Academy, and that the other trustees of the Academy shall be “elected or appointed by said Convention in such manner as it shall prescribe, so as best to perpetuate the succession of the trustees, to further the interests of the Academy,” &c.

Eow the devise and bequest in said codicil is to the Convention for the use of the Academy. It is, therefore, a devise and bequest to’ the Convention for the use of one of its agencies in carrying out one of the objects and purposes of its incorporation. In the case of Woman's Foreign Missionary Soc. v. Mitchell, 93 Md. 199, the will directed that certain property of the testatrix be sold and the proceeds thereof, together with any money she possessed, “be held in trust by the Board of Managers of the E’oreign Missionary Society of the Methodist Episcopal Church of the United States of America for the following purposes: After all my debts, bequests and provision for my burial, etc., be paid, that sufficient be used to educate as Bible readers in India six girls, one to be named ‘Dorcas Sherman’; one ‘Avis Cecil Sherman’; one ‘Mary Jane Sherman’; one ‘Sarah Jennie Sherman’; one ‘Jennie Smith’; one ‘Grace Mabel Sherman’; the money remaining after that set aside for the education of the aforesaid Bible readers to be applied to the purchase of a building to be used for the education of girls in India to be called the ‘M. Adelaide Sherman Home.’ and the location of said building to be left to the1 decision of Bishop Thoburn or his successors.” After holding that the Woman’s Foreign Missionary Society of the Methodist Church, the only missionary society in the Methodist Church engaged in the particular work “the intended devisee and legatee was expected to perform with the proceeds” of the property mentioned in said clause of the will, and of which the testatrix was a member, was the society the testatrix intended to take under the will, the Court took up the question whether the clause mentioned was void “by reason of its creating a trust whose objects are vague, indefinite and uncertain.” In disposing of that question and holding that no trust, was created, Chief Judge MoShekey said: “If there be a manifest design not to establish a trust, then no trust will be declared though the words employed would ox might, but for the contrary intention, be sufficient to create a trust. Bennett v. Balto. Humane Soc., 91 Md. 10. Now, perhaps had the precise phraseology, which is found in the will before us, been used in making a like devise and bequest to a natural person, it might be said that the design was. to create a trust, because the purposes indicated are not those ordinarily performed by an individual: but when it is remembered that the. very end which the corporation here made the beneficiary was organized to effect is the education of Bible, readers and the instruction of girls in foreign lands, it becomes, evident that, the property was given to the corporation not. in trust for indefinite objects, but that, it was given to it to be used for its recognized and clearly defined corporate purposes.” In the case of Board of Foreign Missions v. Shoemaker, 133 Md. 594, the provision of the will was.: “'The residue of my estate to the Church Council of St. Paul’s Lutheran Church, in Harney, Carroll County, Maryland. The same to be put on interest by said council and the interest derived therefrom to be paid annually by said council to the Board of Foreign Missions.” In holding that this clause did not create a trust, this Court., speaking through Judge Ukheb, said: “It is proven in the case that the foreign missionary work in which the Lutheran Qhurch of Harney was regularly and actively interested was conducted through the Board of Ebreign Missions of the General Synod of the Evangelical Lutheran Church in the United States of America, an incorporated body, generally known among the church members by the shorter name of the Board of Foreign Missions, by which agency all the funds raised for foreign missions by the Harney Church aud other’ Lutheran congregations were applied to their intended objects. * * * The residuary estate should consequently be regarded as having been devised 'and bequeathed to the Church Council of St. Paul’s Lutheran Church of Harney, with .directions that the income be paid to the Board of Foreign Missions of the General Synod of the Evangelical Lutheran Ohuroh of the Hnited States. As already concluded, in reference to a preceding clause of the will, a devise or bequest to the Ohuroh Council for appropriate church purposes is equivalent to a testamentary gift to the church itself in its corp orate capacity. * * * It is essentially a gift to the church for the benefit of foreign missions. This being one of the recognized religious interests which the church was organized to promote, a devise or bequest to it, with provision for the application of the income to such a purpose, is not invalid on the ground that the objects of the gift are indefinite or that the rule against perpetuities is thereby violated.” See also Doan v. Ascension Parish, 103 Md. 662, and Baltzell v. Church Home, 110 Md. 244.

So in the case at bar, the devise and bequest to the Convention for the use of the Academy, an agency of the Convention in carrying out, one of its corporate objects and purposes, does not create a trust, but is equivalent to a testamentary gift to the Convention itself.

It cannot be said that the testatrix, in directing hex testamentary gift to be used in the establishment of a memorial in the Hannah More Academy, did not intend to promote the interests and well-being of the school, or that she intended it to be applied to soon© object foreign to the corporate purposes of the Convention and Academy.

The devise and bequest do not fail to take effect because of the failure of Miss Lawrence to select the memorial mentioned. The power conferred upon her by the codicil did not give her any estate or interest in the subject of the devise and bequest, but was a. naked collateral power, repugnant to the estate devised and bequeathed to the Convention and therefore void. Doan v. Ascension Parish, supra.

Nor are the devise and bequest in question subject to the provisions of article 38 of the Declaration of Rights. They are gifts to the Convention for the educational purposes provided for in the acts of incorporation. Chuch Extension M. E. Church v. Smith, 56 Md. 391; Baltzell v. Church Home, supra; Gardner v. McNeal, 117 Md. 33.

As the testamentary gift in question is free of any infirmity affecting its validity, the decree appealed from must he affirmed.

Decree affirmed, the costs in this Court and in the court below to be paid out of the estate of the testatrix.  