This appeal involves the construction of Sections 269 and 270 of the Constitution of 1890, as applied to certain devises of real estate and money, respectively, made to the Old Ladies' Home in Jackson, Mississippi. From a decree which held that both of such devises were void, the appeal here was taken by the Old Ladies' Home Association, a corporation under the laws of this State, duly chartered pursuant to the provisions of Chapter 25, Section 832 et seq., Code of 1892, for the purpose of establishing and maintaining a home for aged and destitute women in the State of Mississippi.
The cause originated in the court below on petition of the executor of the last will and testament of Mrs. Quinnie Varnado Grubbs, who died at Osyka, Mississippi, on August 8, 1938, wherein a construction of the will was sought to determine whether it violated the sections of the Constitution here involved in that it provided (1) that "the house and lot now owned by me in the Town of Osyka shall be given to the Old Ladies' Home in Jackson, Mississippi;" and (2) that "any monies remaining after all expenses shall have been met shall likewise go to the Old Ladies' Home in Jackson, Mississippi." The expenses referred to related to minor items mentioned in the will and the expenses of the administration of the estate. A pleading was then filed by the appellant, the *Page 257 Old Ladies' Home Association, setting forth the reasons for its contention that these devises should be upheld. Thereupon, a demurrer was sustained to this pleading, the effect of which action was to hold that the gift of the real estate violated Section 269 and that the gift of the money was in violation of Section 270 of the Constitution of 1890.
Section 269 of the Constitution provides, among other things, that: "Every devise or bequest of lands, . . . contained in any last will and testament, . . . in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, . . ." The appellant, the Old Ladies' Home Association, is a body politic within the meaning of this section of the Constitution, and the land in question was given to be appropriated to a charitable use or purpose. Therefore, the remaining question to be decided is whether the devise of the land was in trust, either express or implied.
In the case of Blackbourn v. Tucker et al., 72 Miss. 735, 17 So. 737, wherein A.L. Blackbourn, after some small bequests to his wife, devised and bequeathed the remainder of his estate, real and personal, to the Senatobia Educational Association, to be applied "in maintaining and keeping in a prosperous condition that institution of learning owned by said association, and known as the `Blackbourn College for Girls,' in Senatobia, Mississippi, or in both maintaining said college and erecting such additional and suitable buildings to said college as their judgment may dictate, having always in view the best interest of said institution," it was held that the bequests of the real estate was void under *Page 258 Section 269 of the Constitution, and that the devise of the personal property was valid under Section 270 thereof. The basis on which the distinction was made was that the first section prohibited a devise of land in trust for charitable use, not only to any religious or ecclesiastical corporation, religious or ecclesiastical association, or any religious denomination or association of persons, but also to any person or body politic, and that the latter section only prohibited a legacy, gift or bequest of money, or other personal property, in favor of any religious or ecclesiastical corporation, religious or ecclesiastical society, or to any religious denomination or association, for such purposes, and not those in favor of any body politic other than religious or ecclesiastical corporations, societies or associations.
The decision in the Blackbourn case is therefore controlling here to uphold the gift of the testatrix in the case at bar as to the gift of any money to the Old Ladies' Home which should remain after the payment of the expenses referred to, on the ground that the said Home is not a religious or ecclesiastical corporation, society or association; and it is also controlling to defeat the devise of the land on the ground that Section 269 prohibits such a devise to any body politic, in trust, either express or implied, for the purpose of being given or appropriated for charitable uses or purposes, for the reason that while the testatrix did not expressly provide in her will that the land, or the proceeds from any disposition thereof, should be devoted to the promotion of the comfort and welfare of the inmates of the Old Ladies' Home, such an intention and purpose is clearly to be implied. It is stated in Rest., Trusts, Paragraph 24, Subsection 2, that "No particular form of words or conduct is necessary for the manifestation of intention to create a trust." Also see Greely v. Houston, 148 Miss. 799, 114 So. 740.
Chapter 25, Code of Mississippi in 1892, under which the Old Ladies' Home Association was first organized *Page 259 and chartered as the Rest Haven Home Association, the name of which was later changed to the Old Ladies' Home Association by amendment of the charter, authorized the corporation to hold such real estate as might be necessary and proper for its purposes, not exceeding $250,000 in value. The house and lot here involved is located more than one hundred miles from the Old Ladies' Home in Jackson, Mississippi, and the only reasonable conclusion is that it was within the contemplation of the testatrix that the property would have to be sold or leased at a rental in order for the inmates of the home to receive any benefit from the gift, and we think that it necessarily follows that this corporation, which was chartered for purely benevolent purposes, as recited in its charter of incorporation, could not receive the property within the intent and purpose of the will other than in trust, and under an implied obligation to appropriate it to the charitable purpose of promoting the comfort and welfare of the inmates of the Old Ladies' Home, and for that purpose alone. In other words, we are of the opinion that while no trust is expressly created by the terms of the will in the instant case, as was done by the testator in the Blackbourn case when he provided that his real estate should be applied by the Senatobia Educational Association "in maintaining and keeping in a prosperous condition that institution of learning owned by said association, and known as the `Blackbourn College for Girls,' in Senatobia, Mississippi . . .," nevertheless, a similar intention on the part of the testatrix is implied in the case at bar, that is to say, that the property here involved should be applied in maintaining the Old Ladies' Home for the benefit of those intended to receive this bounty, "having always in view the best interest of said institution" as was expressly stated by Blackbourn in his will. If this construction of the will here involved is correct, then it follows from the decision in the Blackbourn case that the devise of the land clearly violates Section 269 of the Constitution of 1890, which was not *Page 260 repealed by constitutional amendment until after the death of the testatrix herein on August 8, 1938. It may be a rather anomalous situation that at the time of the execution of this will the State was contributing by legislative appropriation the sum of $2,500 per year for the support of the Old Ladies' Home at Jackson, while one of its citizens was prohibited by the Constitution from making a gift of land to be devoted to the same purpose. Nevertheless, the Constitution then prohibited such a devise of land by will, and it is the duty of the court to enforce its mandate.
The decision of the court is therefore affirmed as to the invalidity of the devise of the real estate mentioned in the will, and is reversed and remanded wherein it held invalid the bequest of the money.
Affirmed in part, reversed in part, and remanded.