The application for rehearing filed by Daisy Caldwell and others on July 5, 1919, was denied on October 23, 1919; the subjoined opinion, headed A, responding to the argument and authorities in support of the application as fully and particularly as a proper regard for reasonable brevity would allow. On November 5, 1919, the cause was restored to the rehearing docket by concurring justices, for further consideration. The argument presented on this second reconsideration of the soundness of the foregoing original opinion, delivered June 30, 1919, and in opposition to the correctness of the opinion in response to rehearing, delivered October 23, 1919, was the same, in substance and effect, though amplified, as that pressed against the soundness of the two previous opinions mentioned. Additional decisions and texts were cited in the last brief of the solicitor for Daisy Caldwell and others; but they, like those considered in the subjoined opinion, headed A, were of no particular value, though stating *Page 596 correct general rules, because they involved instruments radically different in their terms from the instrument in which this testatrix, Hannah J. Caldwell, deceased, expressed her intent in the premises. The correctness of the original opinion was not questioned by the application for rehearing, except in the single aspect that it concluded that Almena Caldwell (under whose general devise to them of a remainder in her real property Daisy Caldwell and others alone claim), who died without descendants on March 3, 1918, had no interest in or title to the subject of the trust during her (Almena's) lifetime, and hence could dispose of no interest or title by will.
That the trust created by the third paragraph of Hannah Caldwell's will (quoted in the original opinion) failed for want of a beneficiary of the trust, is not doubted by any member of this court. So the only question presented, originally and on both reconsiderations was this: at what point of time was the failure vel non of the beneficiary to be finally determined? This to the end of ascertaining who were the heirs of Hannah J. Caldwell, deceased; the familiar rule being that upon the failure of a trust, for want of a beneficiary or otherwise, the subject thereof inures to the benefit of the heirs of the donor or of the testator, unless by provision in the instrument creating the trust or in the will a different disposition, through a residuary or other clause, is made. In this connection it is well to note that no provision whatsoever was made in the will of Hannah J. Caldwell, deceased, for a disposition of the corpus of this trust in the contingency that it failed.
Upon the reconsideration consequent upon the restoration of the cause to the rehearing docket on November 5, 1919, Justice SAYRE withdrew his concurrence in the overruling of the application for rehearing on October 23, 1919, and Justices SOMERVILLE, THOMAS, and BROWN concurring with Justice SAYRE, form the judgment of the court in accordance with the foregoing opinion of Justice SAYRE; Chief Justice ANDERSON, Justice GARDNER, and the writer adhering to the view that the original opinion and the subjoined opinion, headed A, were sound, and that the result thereby attained should be reapproved and sustained, leaving the subjoined opinion, headed A, to express the judgment of Chief Justice ANDERSON, Justice GARDNER and the writer in answer to the argument and authorities pressed for Daisy Caldwell and others, who claim alone under the will of Almena Caldwell, deceased. Since the opinion of the majority of the court proceeds on new considerations, the writer will set down his judgment in respect of such new considerations as have received the sanction of a majority of the court, disclosed in the foregoing opinion of Justice SAYRE. These new considerations are, if soundly approved, of importance in the present cause, but of far greater importance in their subversive effect upon the rights of others that have been, up to this time, accepted as validly vested. The significance of this statement will later appear.
An analysis of the premises stated or the conclusions announced in the majority opinion discloses that the merger of the Cumberland Presbyterian Church into the Presbyterian Church of the United States, in 1906-07, is regarded as an effected surrender by the Cumberland Presbyterian Church of its doctrinal adherence and activity to an organization, viz. the Presbyterian Church of the United States, that did not teach or embrace "the distinctive doctrine of the Cumberland Church." The like idea is expressed, somewhat more definitely than theretofore therein, on page 11 (84 So. 8511) of the opinion of the majority. This conclusion is in immediate conflict with the doctrine of these decisions of this court: Harris, v. Cosby, 173 Ala. 81, 55 So. 231; Morgan v. Gabard, 176 Ala. 568,58 So. 902. In Harris v. Cosby, supra, it was deliberately affirmed, at page 90 of 173 Ala. (55 So. 233), that these organizations, the Cumberland Church and the Presbyterian Church of the United States, were in "general agreement in doctrine and government" and that "their differences were stated to be not fundamental." (Italics supplied.) It unmistakably appears otherwise from the opinion In Harris v. Cosby, supra, that the differences between these church organizations resulted from interpretation, not from an adherence to divergent principles. The Eighth Circuit Court of Appeals of the United States, in Duvall v. Synod, etc., 222 Fed. 669, 138 C.C.A. 217, pronounced as follows, in the light of the decisions in many cases involving this merger, including our deliverance in Harris v. Cosby, supra:
"On May 24, 1906, the representatives of the Presbyterian Church and the Cumberland branch thereof entered into an agreement by the terms of which it was substantially agreed that the two churches should be amalgamated, merged, and united into one church by the name of the Presbyterian Church in the United States of America, which should take, hold, succeed to, and possess all the legal, corporate, and property rights and powers of the separate churches, the same as if it were a continuance of each. * * *"
Since no reference is made in the majority opinion to the doctrine of Harris v. Cosby, supra, and to Morgan v. Gabard, supra, following Harris v. Cosby, it is not to be supposed that a departure from their doctrine was intended. If the indicated statements in the majority opinion are an announcement *Page 597 of the result of a rule of law in this jurisdiction — and doubtless it would not have been written in the opinion unless that was intended to be its effect — the consequences will be far-reaching, for, to illustrate, its application to the trust, to educate ministers primarily in the Cumberland Church, established in the Walton will as reproduced on page 643 of 127 Ala. (29 So. 99, 85 Am. St. Rep. 145), in Woodruff v. Hundley and upheld in Woodruff v. Hundley, 147 Ala. 287,39 So. 907, would change the beneficiaries of that long-administered trust. Even such an intimation by this court should, it seems, take due account of the doctrine established in Harris v. Cosby, supra, and followed in Morgan v. Gabard, supra — the latter case involving and requiring equity's power to protect and preserve the subject of the trust from the use to which the merger of these church organizations had assigned it. In so far as the conclusion of the majority is predicated upon the attribution of an effect different from that accorded the merger in Harris v. Cosby and Morgan v. Gabard, it is, in my opinion, unsound, and affords no argument or ground for deciding that this trust was defeated by the merger fully described in Harris v. Cosby, supra. It could not be soundly affirmed that, if the theological department theretofore conducted at Cumberland University had been continued under and after the merger, it would not have been the beneficiary defined in the third paragraph of Hannah J. Caldwell's will. It was decided in the original opinion that the testatrix did not "intend to constitute the entities, Milton College or Cumberland University, devisees under her will"; that the trustees of these institutions were, in the contingencies stated in her will, simply employed by her as agents, trustees, to carry out her design. The correctness of this conclusion in construction of the will is not and has not been questioned, except by the entity, Cumberland University; and an acceptance of and regard for that conclusion will serve to render inapt and unimportant much comment or observation that can only confuse the judgment in deciding the single concrete question presented on the reconsideration of this cause.
2. It is held in the majority opinion that, "in effect," the action of the "trustees of Cumberland University" (the resolution is quoted in the original opinion) was a "renunciation of the devise and caused it to lapse as effectually as if the charter of the corporation had expired"; that it is not to be perceived "how the formal resolution of the trustees can be accepted as anything less than a renunciation, and so as a lapse, of the devise in question." There are reasons which appear to the writer to demonstrate the unsoundness of this pronouncement. As before particularly noted in the original opinion, Cumberland University, the corporation, is not the alternative beneficiary of the trust the testatrix created in the third paragraph of her will. The testatrix, in the contingency defined quite naturally designated the trustees of Cumberland University as the administrative agents of her design; but the connection or power or authority of these trustees was referable alone to testatrix's will, and could not be at all attributed to their power or authority as trustees of Cumberland University. In respect of this trust they were trustees under the will of testatrix. The action of the trustees of Cumberland University (not these persons as trustees under the will of testatrix) in discontinuing the theological department was within their competency as trustees of the corporation, and is referable alone to their function as such corporate trustees. So in discontinuing — as the resolution quoted in the original opinion announces — the theological department of Cumberland University, they acted only as corporate authorities; and nothing in their resolution indicates the slightest purpose to even decline the office of trustee under the will of this testatrix, much less to undertake to renounce for the particular beneficiary designated in the will the trust created by this testatrix. The familiar rule was long ago established that, to quote Perry's work:
"Courts will not allow a clear trust to fail for want of a trustee; nor will they allow a trust to fail by reason of any act or omission of the trustee; therefore courts will not allow a trust to fail, or to be defeated by the refusal or neglect of the trustee to execute a power, if such power is so given that the donor intended it should be exercised" (Perry on trusts, vol. 1 [5th Ed.] § 248, p. 372)
— unless, of course the instrument creating the trust vests the trustee with a power to terminate the trust (2 Beach on Trusts, § 763). The like doctrine has been accepted in this court. Andrews v. Hobson, 23 Ala. 219; Randolph v. East B'ham Co., 104 Ala. 355, 364, 16 So. 126, 53 Am. St. Rep. 64. A trustee may, upon occasion, renounce the office of trustee, may decline to act; but only the cestui que trust, the beneficiary, can renounce the benefit of the trust. Skipwith v. Cunningham, 8 Leigh 271, 31 Am. Dec. 642. There is nothing whatsoever in this record going to show any renunciation at any time by this beneficiary. It is therefore my opinion that the holding in the majority opinion that the trustees designated in this will either could or did renounce, or attempt to renounce, this trust, with the result that the trust was caused to "lapse"; that the trustees of Cumberland University could and did discontinue (because of a failure consequent upon "strife" between contending factions in the Cumberland Church [see resolution ante], not because, as seems to be supposed, of doctrinal *Page 598 differences between the Cumberland Church and the Presbyterian Church into which the former was merged) the theological department conducted as a department of Cumberland University at the time of, and for 21 years after, the death of this testatrix, is patent; but that that action of the corporate authorities of Cumberland University was final and conclusive, and that those corporate authorities could not thereafter, during the lifetime of Almena Caldwell, have rescinded that action and revived the department, appears to me to be not at all doubtful for the reasons stated in the original opinion, ante, and in the subjoined opinion headed A. The time for ascertaining the existence of the alternative beneficiary was, under the clear effect of this trust purpose, upon the death of Almena Caldwell. It was only upon her (Almena's) death that the testatrix's bounty could be availed of, or could be applied, or the land be converted into the fund the testatrix made the subject of the trust. Until the death of Almena there could be no final determination or ascertainment of the failure of the trust for want of a beneficiary, the trust being otherwise perfectly valid. It is too plain for cavil that it was the proceeds of the sale of the land, not the land itself, that she intended to be the corpus of the trust. Hence the inquiry — where was the fee or title to the land after the death of Hannah J. Caldwell? — would be and is purely academic, since the point of time at which the trust failed for want of a beneficiary, not the title to the land, is the question in the cause.
No matter where the fee or other title was placed by the will during that period, the stated question would still persist, and would remain wholly unanswered by any finding that might be made as to the will-fixed repository of the fee or any other quality of estate. That the testatrix did not intend to submit to the personal discretion or choice of her executor whether the trust she had been at particular pains to create — even to the extent of providing for an alternative beneficiary, then a department of Cumberland University, and ending her will without any residuary provision whatsoever — should avail or be available, or be defeated, cannot be reasonably extracted from the terms of this will. That the executor was required to sell the land was expressly provided; but he was vested with a proper discretion with respect to the time of resale, if at the first sale the land did not bring 75 per cent. of the value put upon it by the three persons to be named by the probate court, as stipulated in the will. If a beneficiary of this trust had all along existed, and the time had come to sell ("within a reasonable time after the death of Sarah Almena Caldwell," to quote the will), and the executor still survived, would any court have recognized any semblance of right in him to defeat the trust so positively provided? It does not seem possible under the terms of this will. 1 Perry on Trusts (5th Ed.) § 248, p. 372, quoted above herein.
On the last page of the majority opinion (84 So. 851) the writer expresses his individual judgment, not that of the concurring justices, to this effect: That the title remained in the heirs at law of testatrix, subject to be divested for the benefit of the theological department of Cumberland University. I am unable to see in this will the slightest manifestation of an intent to create a conditional estate in the land or a conditional trust, other than upon the contingency that Milton College should fail to meet the requirements prescribed in the will, to the end that the heirs at law took or held a base fee in remainder, or other contingent interest or estate, subject to be divested for the benefit of the beneficiary of the trust. The will is absolutely free from any language manifesting any such intent. There is no devise or other provision for any heir or next of kin, except Sarah Almena Caldwell. The creation, definition, and prescriptions with respect to the trust — the only other intent even intimated by the testatrix in her will — are absolute and unqualified except as to the alternative beneficiary, and as to the stated discretion reposed in the executor as to a resale in the event it did not bring 75 per cent. of the value put upon it by the persons named by the probate court. Every lawful, expressed intent of a testator, and none other, should be given effect in the courts.
The logical consequence is that, since the failure of the trust for want of a beneficiary could only be finally determined upon the death of Almena Caldwell, on March 3, 1918, Almena had, in her lifetime, no title to or interest in the property, and she, being dead at the earliest point of time failure vel non of the trust could be determined under the very terms of the will, could not have been an heir at law of Hannah J. Caldwell, deceased, with respect to the property in question.
In my opinion, the decree appealed from was erroneous in the particular stated in the original opinion and in subjoined opinion headed A.
Chief Justice ANDERSON concurs in the foregoing.
A.1 Ante p. 594.
On Rehearing.