ON SUGGESTION OF ERROR. We adhere to the former opinion rendered in this case, whereby the bequest of money made by the testatrix, Mrs. Grubbs, to the Old Ladies' Home in Jackson, Mississippi, was upheld as a valid gift under section 270 of the Constitution, and whereby the devise of her house and lot, owned by her in the town of Osyka, Mississippi, to the Old Ladies' Home was declared void, as being in violation of section 269 of the Constitution, which prohibits such a devise, not only in favor of any religious or ecclesiastical corporation, society, denomination or association of persons, but also to any person or body politic in trust, either express or implied, for the purpose of being appropriated to a charitable use or purpose.
It is again urged that since the devise of this real estate was direct to the Old Ladies' Home Association, a corporation chartered "to establish and maintain a *Page 261 home for aged and destitute women in the state of Mississippi," it was not a devise in trust, either express or implied, for the purpose of being appropriated to a charitable use or purpose, as prohibited by the constitutional provision in question.
In the former opinion we undertook to analyze and apply to the fact in this case the decision of Blackbourn v. Tucker et al.,72 Miss. 735, 17 So. 737, wherein Blackbourn bequeathed his real estate to the Senatobia Educational Association under anexpress provision that it was to be devoted to the purpose of "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,'" and we undertook to show that in the case at bar the testatrix bequeathed her real estate to the Old Ladies' Home, in Jackson, Mississippi, alleged to be owned by the Old Ladies' Home Association, the body politic hereinbefore mentioned, under animplied provision in her will that this property was to be devoted to the purpose of promoting the comfort and welfare of the inmates of the said Old Ladies' Home, which was likewise for a purely charitable purpose. Looking to the substance, rather than to the form, of these two devises, they are identical in principle. Mrs. Grubbs has clearly intended that her property should be appropriated to the purpose of promoting the welfare of the Old Ladies' Home as if she had expressly so declared. For aught that appears in the record before us, she may not even have known that there was such a corporation as the Old Ladies' Home Association. She did know that the Old Ladies' Home at Jackson was undertaking to minister to the needs and comfort of aged and destitute women in Mississippi, and it is manifest that these were the objects of her bounty when she wrote her will in her own hand. The gift is not to the corporation for the benefit of its non-stockholding members, who pay a fee of $1 each for membership therein and operate the institution through a board of *Page 262 directors as a public charity; nor was there any intention to vest the title in the corporation for general purposes, since it has only one corporate function to perform under its charter, and can claim the property for no other purpose than that of appropriating it for benevolence, under its charter from the State.
Moreover, in our opinion the prohibition of section 269 of the Constitution, which was not repealed until after the will in question became effective, was not merely intended to prevent property from being devised so as to create a trust in a strict technical sense, but it rendered invalid any such devise to any corporation, society, denomination, association, person or body politic enumerated therein, where such devise is to be accepted under an obligation, either express or implied, to appropriate the same to a charitable use or purpose. An implied trust is defined in Black's Law Dictionary (3 Ed.), 1260, as "A trust raised or created by implication of law; a trust implied or presumed from circumstances."
In Rest. Trusts, section 1, under subsection c, it is said: "Although many of the rules applicable to private trusts are also applied to charitable trusts, other rules applicable to private trusts are not applied to charitable trusts, and there are rules applicable to charitable trusts which are not applied to private trusts. The fundamental distinction between private trusts and charitable trusts is that, in the case of a private trust, property is devoted to the use of specified persons who are designated as beneficiaries of the trust; whereas, in the case of a charitable trust, property is devoted to purposes beneficial to the community. The rules applicable to charitable trusts are stated in sections 348-403."
In Rest. Trusts, section 397, subsection f, it is stated that, "If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee, but also does not use language indicating that the property is to be held upon trust, nevertheless a charitable trust will be created." *Page 263
Again, in Rest. Trusts, section 2, subsection i, it is said, "A trust can be created, or having been created can continue, although for the time being there is no trustee. Thus, if the owner of property devises or bequeaths it in trust, a trust may arise although no trustee is named in the will or the person named as trustee is dead or otherwise incapable of taking title to the property."
If the mere fact that the devise of the real estate in the present case was direct to the corporation, instead of to it for the express or implied benefit of the home, would remove it from the contemplation of section 269 of the Constitution, then it would necessarily follow that the denominational colleges in this State have been under an erroneous impression for many years as to their right to accept devises of real estate in their corporate capacities, under the terms of a will; and that there was, in reality, no need for the recent repeal of this constitutional provision. These institutions, and our religious and ecclesiastical denominations could all have acquired such real estate as may have been devised to them, if they had only adopted the expedient of letting the devise be made directly to the college or to a religious or ecclesiastical body, as the case may be, as a corporate entity, without naming the true capacity in which it may have taken the title — in trust, to be used for the purpose intended.
In Blackbourn v. Tucker, supra, it is stated, "Manifestly, the purpose of the constitution is to prevent one who will not be charitable at his own expense from being so at the expense of his heirs at law." If this be the philosophy of the provision against alienation of lands in mortmain, then the same reason would apply for holding void a devise by will direct to a body politic, when it is apparent that the testator intended that the devisee should appropriate it to charitable purposes, as would exist if the devise were made to a named devisee for the express benefit of another. On the other hand, if it be said that the purpose of the provision was merely to *Page 264 prevent the accumulation of land in the corporations, societies, denominations, associations or persons and bodies politic, enumerated in the Constitution, for the purpose of being appropriated to charitable uses and purposes, then this purpose would be defeated by upholding a devise made direct to either for that implied purpose, although it would be admittedly void if made to either of them for the express purpose of being appropriated to some particular charitable use or purpose.
As to whether the prevention of the accumulation of lands for the purposes mentioned was the dominant idea, it is significant to note that section 269 of the Constitution likewise, and with equal emphasis, prohibits a devise or bequest of any money directed in a will to be raised by the sale of land. Therefore, we come back to the proposition that the framers of the Constitution undertook to prevent the disposition of land by will, either directing its sale or by vesting the title thereof, so as to permit its appropriation, either directly or indirectly, for a charitable use or purpose.
While many cases are cited where devises of land to one for the benefit of another have been held invalid, and it is argued that such was the basis of the decision, no case decided by this court is called to our attention which has upheld a devise of land under the circumstances mentioned in the Constitution, on the ground that it was made direct to a named devisee, instead of to it for the benefit of another.
In Greely v. Houston, 148 Miss. 799, 114 So. 740, 743, the court said: "Section 269 of the Constitution prohibits a devise of land direct to a religious institution or in trust for the use and benefit of such an institution `or for the purpose of being given or appropriated to charitable uses or purposes.'" This section of the Constitution applies to a devise of land in favor of any person or body politic, the same as it does to a religious institution.
Suggestion of error overruled. *Page 265