
    No. 482
    GRAHAM et al v. BERGIN et al
    Ohio Appeals, Second Dist., Franklin County
    No. 1069.
    Decided May 5, 1923
    This opinion has not been published except in Abstract.
    CHARITABLE TRUSTS — (1) Liberality in construction — (2) Co-existence of charitable and non-charitable trust — (3) Execution of trust under doctrine of cy pres.
    Attorneys — Henry A. Williams and M. R. Patterson, for Graham et al; Turner & Calland and Henry Gumble, for Bergin et al.
   ALLREAD, J.

Epitomized Opinion

This is an action to set aside certain trusts set forth in a will. Virginia W. Gay died leaving a will disposing of an estate of about $525,000. The major portion of this estate was disposed of in Article 6 of the will, which created a charitable and non-charitable trust. Under this provision a large sum of money was to be vested in certain trustees to be used for the construction and maintenance of a “Home for Aged Women.” This Home was to be used and maintained for charitable purposes, and also provided that certain classes of inmates were to be charged a certain amount to live therein. Shortly after the testator’s death, this action was brought to invalidate these trust bequests and' to establish a resulting trust in favor of the heirs The case was tried in the Common Pleas Court of Franklin county before Judge E. R. Kinkead and the trust was declared void for uncertainty and because private and non-charitable trusts were mixed in the same bequest. The case was appealed and the Court of Appeals, in reversing the judgment, held:

1. The utmost liberality must be exercised in the establishment and in the administration of charitable trusts.

2. The mere co-existence of a charitable trust, legal in itself, with a private trust, also legal, will not defeat the charitable trust unless the two are inseparably commingled.

3. If the fund established by the bequest should be found to be insufficient to execute the trust strictly according to the terms of the will, it may be executed under the legal doctrine known as cy pres.

Decree that charitable trust is valid and must be • executed either in the exact form prescribed by the will or under the doctrine of cy pres.  