
    Case 108 — PETITION EQUITY
    December 6.
    Penick, Rector, v. Thom’s Trustee. Reynolds’ Administrator v. Same.
    APPEALS PROM PRANKLIN COURT OP COMMON PLEAS.
    Devise to Charitable Uses. — In construing a devise to a charitable use, the intention of the testator must be consulted just as in construing any other provision of his will; and if the real objects of' the testator’s bounty can be ascertained, the devise will be enforced for their benefit, and the devise will not be allowed to fail for want of a trustee or other person in whom the title may vest.
    
      Under a devise to a trustee for “ the use and benefit of the Orphans’ Home of the Episcopal Church of the Ascension in Erankforl,” the title to the house then called the “ Home ” being in the wife of the testator, and no home being devised to the church, the devise of the charity was, in effect, to needy orphan girls, children of those who had been- members of Ascension Church, or such as might be adopted as deserving its care and protection; and the income of the trust fund should be expondod for their benefit in such manner as will carry out the benevolent purpose of the testator, although the “ Home,” as it existed at his death, has been abandoned.
    .A. DUVALL for appellant Penick.
    Brief not in record.
    W. LINDSAY, EBANK CHINN for appellees Thom and Wipe.
    ' The English doctrine of Cy Pres does not obtain in Kentucky. (Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366.)
    The trouble in this case is not the want of trustees, but the want of a beneficiary, and the court can not divert the fund to any other use than the support of the “ Orphans’ Home ” named by the testator as the object of his bounty. There being no such Homo, and no disposition upon the part of any one to re-establish it, and no claim that it can be re-established, we have an instance of the failure of a charitable devise, and the reversion of the fund set apart for the charitable use. (Perry on Trusts, vol. 2, sec. 726.)
    Cases discussed: Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366; Cremie’s Will, 3 Bush, 365; Curling v. Curling, 8 Dana, 38; Attorney-General v. Wallace, 7 B. M., 611; Leeds v. Shaw’s Adm’r, 82 Ky., 79; Kinney v. Kinney’s Bx’r, 9 Ky. Law Bep., 753; Bussell v. Allen, 107 U. S., 163.
    D. W. LINDSEY for Beynolds’ Administrator.
   JUDGE PBYOB

delivered the opinion op the court.

On tlie 29tli of July, in the year 1861, the last will and testament of John EL Hanna was admitted to probate by the county court of Franklin county. That paper was executed on the 2d day of December, in the year 1858. The testator had no children, but left surviving, him his widow, Mary Hanna, and , two adopted children, Hunt Reynolds and his sister Catherine (now Mrs. Thom), to whom he devised the greater portion of a large, estate. He had long been a member of the Episcopal Church of the Ascension in the city of Frankfort, and by the provisions of his will made a special devise of fifty shares of stock of the Farmers’ Bank of Kentucky for the - benefit of the Parish School connected with that church;. and also made a devise of a like number of shares of -stock of the same bank for -the use. and benefit of the Orphans’ Home .of the. Episcopal Church; in Frankfort. 'This last devise -is the subject-matter of the present ¿controversy between the devisees of the testator on the! one side, and. E. A. . Penick, the Rector of the Episcopal Church, on the other. ' ,

The devise reads as follows: “I give and bequeath -unto John N. Norton, trustee and in, trust, fifty shares .¡of the stock of- the Farmers’ -Bank, pf Kentucky for the use and benefit of the, Orphans’. Home of , the Episcopal Church-;of the Ascension in Frankfort, and the semi-annual- dividends of said- stock are to be paid over-fo-Mrs, Mary S. Hanna, to be used by her for the support of said Orphans’ < Home, and upon her death; then-the said Norton is-to designate some person -to make the. disbursements for ¡ the rises afor.esaid.” .. i.ak-u , .

,, The trustee,. Norton,, who was. th,em ¡the- rector' of the church, and so- continued for a number of years after the death, of , the: testator, accepted the .trust -and paid the funds over to the widow of the testator as directed, until, her death, that took place in .the year 187Q.. The, widow., who, .also owned a- large estate,. left, a -last-ydl], and destaraent,; ^y(?wjhieh,..;9S,.is -claime.d. by-,the[,-appellee,,,she, d.evisgd;,to -heir (M*;®. Thom) the fifty shares of bank stock that had been given by her husband, the original testator, to the-Orphans’ Home. By the will of the husband, John H. Hanna, his wife became the devisee of all his estate that might have been omitted to be devised, or that might become a part of his estate in any way, or, to use the language of the will, “by reason of any omission, lapse, casualty, inadvertence or want of form, shall remain and vest in my wife,” &c.

It is claimed by Mrs. Thom that the Orphans’ Home had been abandoned, and there being now no such institution in existence to accept the charity, the bank stock passed, under the will of John H. Hanna, to his wife, Mary, under the clause referred to, and that she (Mrs. Thom) took it under the will of Mrs. Hanna as the devisee of all her bank stocks, &c. By the will of the testator the trustee, Norton, was to pay the dividends over to the widow that she might apply them during her life to this charity, and the widow, when she made her will, being desirous of enlarging the charity, and with the view of making the home more useful as a benevolent institution, dedicated the property known as the Orphans’ Home to the uses of an asylum for poor orphan girls, where-they could be maintained and educated until they could earn their own support, vesting the title in her nephew, Hunt Reynolds, with the provision that if' no sufficient fund was raised for the support of the-asylum the property was to revert to him, or he should in that event .retain it as his own property. The-funds were not raised, and the orphan girls, then in what was called the home, remained there until the. year 1881, under. a further provision of the will of Mrs. Hanna that they were to remain in the home until they severally became of the age of sixteen. It appears, therefore, that the orphan girls who were in this home, or some of them, remained there for near eleven years after the death of the widow of the testator.

That his widow contributed more to the support of these orphans than all others is apparent, and that she was the real founder of this benevolent ■enterprise will be conceded, but it does not follow that because the funds necessary to maintain or enlarge this asylum as it was intended to be called and used by the testatrix were not raised, therefore the-trust fund placed in the hands of the rector of the church (Norton) by the original testator passed under his will to his widow, and from the widow, by virtue of her will, to the appellee, Mrs. Thom. Norton, the trustee under the provision of the testator’s will cre.ating this trust, was directed, upon the death of his widow, to designate some person to malte the disbursement. The rector who was invested with the title as trustee to this bank stock resided in Frankfort for many years, had control of the fund, or doubtless applied it for the uses contemplated, until the year 1881, when he died, being at the time a resident of the city of Louisville, and by the provisions of his will, and acting under what he supposed was the power conferred by Hanna’s will, transferred to the present rector of the Episcopal Church at Frankfort the fifty shares of stock to be applied to the charita'.ble use intended by the orginal testator, and in this iVay! H„ A'.1.- Penick, the ■•present' lector- 'of1 thé< church, is made-defendant to the action, and the court below1 adjudging)that the istock passed.to,Mrs. .Thom, the appellee, under the will ,of Mrh Hanna,, he has- brought-the case).to this court. ; "• o- , ; ’ ’ -

■ It.is plain - that- neithefc- thé.’-widow of-' the testator nor any of the devisees could destroy the trust' reposed in; the. trustee, ¡Norton; for 'the»benefit ofcth'e'.-orphafi-.gMs ór of .the Orphans’ Home of the'Episcopal'-.Church inPrankfort, and' while the benevolence of this Christian) woman may have added' moré to the. prosperity of "the; home and happiness of the orphans.within’it'than" all1 the-.other 'members- of-the church - combined, cstill the, charity is' not defeated’ because of -the'failure to: rkise' the- funds-necessary1 to:found or even PontiuUe- the hsy-: l.um as -desired -by hefc.fcWhile .thfe tesfator desguatesas the object 'of .-his -thert‘ Orphans^'lióme of the- Episcopal ■•Qhur'ck in f'éanjcfortf- it clearly-;ap-:pears' that-"the title do-the .house called) the -home ;was:in. the tVidow-of the:-testator,;and no devise)--having; been made-to the- church , of any 'home, the devise1 óf the charity .wás,. in, effect; to .the - ofcphan ;girls. who -were,' poor ■' and) needy children - of: • those tiho) had ¡ been mem- , bers'of that .-church, ofc- such'-as; might be.'adopted as: deserving ófits caré and- protection.'; ¡In;other words,; the chkrity yas -.recognized' ■by-'thó' téstaíorv-as. bfeing connected with the church,-.and -from-the members of which;. doubtless; i >contributions.: were pjaÉfe)- nsbthe pvie dehce- conduces to '.establish, '.although his < contributions, knd devise honétitirtfed.-the/.ipfcjhcipál fund; keTh'e title; to."the' building,] .-as'-;is. alléged,-[ds„■ndw dm:the \de^isee: of-EIrs‘í Hanpa,:;:and thedfundviá •elkimedcbyt another; Of Her devisees, upon the ground'that1 thé'testatrix in some way had a contingent or vested interest'in it, although dying and making .her will ten years before: it is claimed the home-was abandoned.- - : -

• Why another home may not be provided, or the income of the fund expended in the support, education and maintenance of orphan girls in such manner as will carry out the benevolent purpose 6f the testator, we can not well see. None, in fact, exists. • We say. it should be applied to the orphan girls, "because -the means of the testator and his wife had been so applied by them while each lived to contribute, and for a period of twenty years this' class of children received its benefits. ‘ . ■ c . ...

It was not the intention of thé testator to maké any other disposition of this fund than 'that contemplated by the devise. The devise' bedamé -absolute1 and irrévocable when the will was probated, and with the title to the property in'his-'widow-he could" not have supposed that this home would continue : in the particu-1 lar house. He may1 have believed,1 and1 doubtless. did*' believe, that1 his widow would dedicate the- building some day as a home, and this she did on certain conditions that were’ never complied with-, but the failure' Of her purposes can not. affect the charity of' her bus--' band. 'His intention was to'make * the fifty'shares of stock a perpetual fund for- the benefit of bfphan girls,' to - be '-under- the* control of, or as- an = adjunct to,- the church Of which he had so long been a member. He invested' the rector--of that' church' 'with-'the' ■power to appoint some- ofie to apply the income of the fund after the wife's - death, not-to be uis'ed - in the' property ■owned by her or by her devisee, but to be applied to the wants of poor orphan girls, who seem to have been made the sole object of the charity that was continued to be bestowed under the will of the testator from the year 1861, when it was probated, until the death of the trustee, Norton, in the year 1881, a ■period of twenty years. In the month of May, 1881, a period of less than three months after the death ■of Norton, the trustee, this action was filed, claiming ■an abandonment of the home, and that the beneficiary •or beneficiaries named by the testator had no longer .an existence.

That this was not a devise to orphans generally will be admitted, but that it was a devise to orphans connected with or under the care and patronage of the Episcopal Church in Frankfort, is manifest. He connects the home by the devise with this •church, calling it “ The Orphans’ Home of the Episcopal Church of the Ascension in Frankfort,” places it under the control of.the rector of that church with the power in the latter to appoint his successor, makes a similar devise to the Parish School of that church, .showing plainly the object the donor had in view, and that he regarded the beneficiaries as the orphanage of the church to which he belonged. He made no devise •of the building subject to the use of the c’harity, but passed the title from him, because he felt assured the fund would be forever applied to those who were to receive its benefits, and those beneficiaries were the orphans who then were, and might thereafter be, placed ■under the care and patronage of the Episcopal Church ■at Frankfort. That the testator confided in his wife with. Tef-erence to this charity, and that it would be •continued by her after his death, is not questioned, ■and that confidence seems not to have been misplaced. She, in fact, controlled the application of the fund as • she wished, and doubtless interested other members of her church in its success; and even if it be conceded that the devise was to aid the wife in maintaining these •orphan girls, it still affords no argument in favor of a ■construction that has, by the judgment below, rendered nugatory the most worthy of all charities.

It is insisted by counsel for the appellee that to create a home and then appoint a trustee would be the exercise of a prerogative and not a judicial power. In other words, because the donor has shown a purpose to create a charity, and it has failed, the court ought not to undertake to create one for him. It is not the benevolence of the chancellor, but that of the testator, that must be effectuated, if it can be done without resorting to some arbitrary rule. “It is an ■established maxim of interpretation,” says Mr. Perry, “that the court is bound to carry the gift into effect if it can see a general charitable intention consistent with the rules of law; * * * but no forced construction will be adopted to uphold the gift.” (2 Perry on Trusts (4th edition), section 709.) It is true that a gift may be charitable, and the chancellor without any power to enforce it, but the intention of the donor must be consulted in a case like this, as it would in construing any other provision of his will, and that 'he- desired his bounty or charity to be distributed to the poor girls (orphans) under the control of his church, is almost as plain as if he had written it in express words; and because be used the words, Orphans’’ Home of the Episcopal Church, when the church had. no title to the home, or the house called the home’ was owned by another, and the children deprived of' its use, affords no reason for destroying this charity that was administered by the wife and the trustee for twenty years to those who were the objects of the-testator’s bounty. These objects still exist, and the-fund should be applied to their wants.

Section 2 of chapter 13, General Statutes, provides that “no charity shall be defeated for the want of a. trustee or other person in whom the title may vest,, but courts of equity may uphold the same by appointing trustees, if there be none, or by taking control of the fund or property and directing its management,, and settling who is the beneficiary thereof.”

In the case of Cromie’s Heirs v. Louisville Orphans’Home Society, reported in 3 Bush, 365, it was held that if the Society was not a .legal corporation, or incapable of holding, still the gift was, in effect, a beneficial gift to poor orphans, and would be sustained on that ground, the court, however, holding that the corporation could take.

In this case the class of persons who- are the beneficiaries of this fund are ready to accept its benefits, and the rector of the Episcopal Church in Frankfort, who was selected by the former trustee, Norton, to take charge of the fund, is ready to receive it for them. How it shall be controlled,, or by whom the income shall be disbursed, must be determined by the chancellor below. The vestry of the Episcopal Church, under the advice and direction of its enlightened and Chistian rector, who should be made the trustee, would doubtless disburse the income to such orphan girls as are poor and needy, and who are accepted as under the care and patronage of this particular church, located in Frankfort.

The judgment below is reversed, and the cause remanded for further proceedings consistent with this opinion. The appeal of Reynolds’ administrator is dismissed.  