
    Barton et al. v. Parrott, Exr., et al. 
    (No. 7-81-219-E
    Decided September 6, 1984.)
    Court of Common Pleas of Delaware County, Probate Division.
    
      Mark Sladoje, Jr., for plaintiffs.
    
      Richard E. Parrott, for defendants.
    
      Anthony J. Celebrezze, Jr., attorney general, and Edward J. Elum, for Ohio Attorney General.
   Gary F. McKinley, J.

On March 10, 1983, the plaintiffs, Bonne Besse Barton et al., who are heirs at law of the decedent, Myrna Knisley, filed a complaint for a declaratory judgment in this court. Said complaint asks the court, under the authority of R.C. 2101.24(L), 2107.46 and 2721.05, to construe Item IV of the decedent’s will dated April 29, 1971, and specifically republished in her codicil dated November 5, 1975, which reads as follows:

“I give, devise and bequeath all of the rest and residue of my estate, real, personal and mixed, of every kind and description, wheresoever situated, to my attorney, Richard E. Parrott, and Robert Dellinger, of the First National Bank of Marysville, Ohio, as Trustees, and in trust for the following uses and purposes:
“I direct that my Trustees establish, upon whatever terms and conditions, and wherever they deem fit, an annual Harness Horse Stake Race, named for, and in memory of, my daughter. In furtherance of such purpose, I direct that my said trustees be permitted to serve without bond; that said Trustees shall have the power to liquidate, invest, reinvest and expend income, principal, dividends and interest comprising the corpus of this trust in such amounts as they may deem necessary to further said stake race.”

Said will and codicil did not contain a further residuary clause. Item V of the will appoints Richard E. Parrott to be the executor of the will. This will and codicil were admitted to probate by this court on August 31, 1981.

Defendants filed their answer on April 29, 1983, and pursuant to the order of the court, the Ohio Attorney General filed his answer on June 28, 1983. All parties waived trial to a jury and this case was tried to the court on June 10, 1983. The court gave the parties additional time to file briefs, which they did, and on July 11, 1983, the case was submitted to the court for decision. The court finds that it has jurisdiction over the parties and the subject matter.

The issue in this case is whether or not Item IV of the Last Will and Testament of decedent, Myrna Knisley, creates a valid and enforceable trust. Trusts are generally divided into two main classes: private and charitable. The brief of the plaintiff filed June 6, 1983 contains extensive citations of authority demonstrating that this provision of Myrna Knisley’s will does not create a private trust. The defendants, in their briefs and memorandum of law, do not seriously contest the plaintiffs position that there is no private trust in this case.

Strict rules of construction must be applied in cases of private trusts. In applying this approach, the court finds that the Knisley will, and particularly Item IV thereof, does not identify a definite cestui que trust or private beneficiary. The court rules, therefore, that this provision does not create a private trust. (See Richmond v. Hallock [C.P. 1956], 81 Ohio Law Abs. 214 [11 O.O.2d 67]).

The central issue in this case is whether or not Item IV of Myrna Knis-ley’s will creates a “charitable trust.” For the reasons more fully set forth herein, it is the decision of this court that Item IV of the Last Will and Testament of Myrna Knisley does not create a valid and enforceable charitable trust and that this provision of testator’s will is, therefore, invalid.

The term “charitable trust” is defined as follows in R.C. 109.23(A):

“ ‘Charitable trust’ means any fiduciary relationship with respect to property arising under the law of this state or of another jurisdiction as a result of a manifestation of intention to create it, and subjecting a person by whom the property is held to fiduciary duties to deal with the property within this state for any charitable, religious or educational purpose.”

Clearly, the establishment of an annual harness horse stake race is not a religious or educational purpose. We must, therefore, consider whether or not the establishment of this horse race is for a “charitable purpose.” As a corollary to this question, we must also consider whether or not the testator, Myrna Knisley, had a charitable intent.

A harness horse stake comes about when owners of horses, from the time the horses are colts, contribute money to a fund held by a horse racing association. Periodic contributions are made into this fund until the horses reach a designated age, such as for two- or three-year-olds. At that time, a race is held in which the winners of the race then share in a part of this fund. The sport or entertainment to be derived from this inures to the benefit of the owners, trainers and drivers of these horses, the people who belong to racing associations and a limited class of persons who become spectators at the final race.

In reaching this decision, the court is mindful of the fact, in cases of a purported charitable trust, the court must use liberal and broad rules of construction. The term “charitable purpose” is broadly defined at 14 Ohio Jurisprudence 3d (1979) 425, Charities, Section 13, as follows:

“[A] gift of property to the use of the-public, or an indefinite portion of the public, as distinct from specific individuals, for any beneficial or salutary purpose.”

This article goes on to enumerate the types of charitable trusts most uniformly sustained by case law as those being for: religious or educational purposes, relief of poverty and disease (hospitals and asylums), cemeteries and memorials (public, however, and not monuments to one person) and other beneficial purposes such as libraries, public parks, gymnasiums, the Society for Prevention of Cruelty to Animals, etc.

The court concludes that Item IV of the Knisley will does not fit under any of the above-enumerated purposes. Therefore, in order to uphold this provision as a charitable trust, it would have to fit under the general “community benefit” purpose to which the Attorney General refers in his brief and which is more fully discussed in IV Scott On Trusts (3 Ed. 1967) 2853, Section 368, and the Restatement of the Law 2d, Trusts (1959) 246, Section 368. A general community benefit arises when the trust confers benefit upon the general community as a whole and not a specific limited class of persons. Clearly Item IV of the Knisley will attempts to confer benefit upon a limited class of persons, to wit: horse owners, trainers and drivers and only those members of the general public who enjoy watching horse racing.

Applying these principles to Item IV of the Knisley will, the court concludes that this provision is not for a charitable purpose and’ does not create a valid charitable trust for the following reasons:

1. The language used is vague, ambiguous, indefinite and uncertain.

2. The scope of the trust is indefinite and uncertain as to when the race is to be held, where the race is to be held, time the race is to be held, etc.

3. The language contained in the will gives the trustees unlimited power and, in effect, the power to make a further will for the testator in that it places in their hands the ability to make specific decisions concerning these funds without supplying guidelines.

4. The language contained in Item IV does not exhibit a charitable intent on the part of the testator or a charitable purpose. A horse race to perpetuate the memory of the decedent’s daughter cannot, by any stretch of the imagination, be termed “charitable.”

5. The horse race is created to benefit a small or finite class of persons and not the general community.

6. This provision establishes a sporting event and not the facilities for a sporting event and, therefore, cannot be said to be charitable.

7. Item IV of the Knisley will creates an annual harness horse stake race which encourages wagering and results in a prize paid to the winner of the race. Certainly, gambling cannot be considered charitable and profits paid to private owners and trainers cannot be said to be inure to the benefit of the general community or be for a charitable purpose.

8. There is no general social welfare purpose created here other than the entertainment of horse lovers for a few minutes each year. This purpose cannot be said to be tied to any type of purpose to promote education, physical health, or public welfare in any way.

9. This attempt to create a trust certainly does not benefit animals (horses) since no money goes directly for the horses’ care or protection. All of the winnings and profits arising out of this type of event would inure directly to the benefit of the owners, trainers and drivers of the horses, and not the horses themselves.

Defendants argue, however, that even if the charitable trust does not fit a specific .purpose or category that the doctrine of cy-pres applies and that the trust should be upheld. It is the decision of this court that the cy-pres doctrine does not apply in this case since (1) there is no valid charitable trust and (2) the settlor did not exhibit a general charitable intent. Finally, in view of the court’s decision that this item of the decedent’s will does not create a charitable trust, the provision is void and without effect since, therefore, it would violate R.C. 2131.08, the rule against perpetuities.

The court is mindful that the rule against perpetuities does not apply where there is an immediate gift to a valid charitable trust since the gift immediately vests when delivered to the trustees and that only the use and enjoyment of the gift are postponed. Since, however, we are holding today that this item of the decedent’s will does not create a valid charitable trust, the gift would, therefore, not vest immediately in the trustees, and it would not vest within a life in being plus twenty-one years.

The court, therefore, enters the following declaratory judgment as to the rights and responsibilities of the parties under the Last Will and Testament of the decedent, Myrna Knisley:

1. Item IV of the Last Will and Testament of Myrna Knisley is void and of no effect since it does not create either a valid private or charitable trust.

2. The doctrine of cy-pres does not apply and not being a valid charitable trust, Item IV violates R.C. 2131.08, the rule against perpetuities.

3. Since the trust fails and there are no specific residuary devisees or legatees contained in the will, the residuary property, therefore, should be distributed to the heirs and next of kin of the decedent, Myrna Knisley, as if she had died intestate pursuant to R.C. 2105.06, and the court so orders.

Judgment accordingly.  