DISSENTING OPINION. In my opinion the devise of real property and the bequest of money, the proceeds of the sale of real property, were valid, and the suggestion of error should be sustained.
The provisions are "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, "Any moneys remaining after all expenses shall have been met shall likewise go to the Old Ladies' Home in Jackson, Mississippi."
In this opinion reference to devise of lands will include the bequest of money provision.
Appellant is a Mississippi corporation. The charter was granted in September, 1902, under chapter 25, Code of 1892, section 838 of which empowers all corporations chartered under that chapter to take title to, and hold, real property "for its purposes," not exceeding in value $250,000. The object was to establish and maintain a home for aged and destitute women in Mississippi — a public charity. The charge for membership is not less than $1.00, to be fixed by the incorporators or directors. The management is vested in a board of not less than five directors, to be selected annually by the members.
It will be seen that the will vests directly in the corporation title to the real property. There are no restrictions or conditions of any kind in the will attached to the devise. The corporation is a legal entity, empowered by its charter to take title. In short, the title is in the corporation absolutely. It can keep or sell the property as it desires. Section 269 of the Constitution of Mississippi does not prohibit a devise of land direct to charity. It does prohibit the creation of a trust in lands for charity. This is the vital and decisive point in this case. This section does prohibit a devise, either directly or in trust, for religious purposes. *Page 266
There are vital reasons for the distinction. Alienation of lands in mortmain — "dead hands" — for religious purposes, thereby depriving the crown and the intermediate lords of the right to military and other services from the tenant under the feudal system; the accumulation of lands of the kingdom in ecclesiastical organizations; execution of deeds as the result of emotion produced by priests and monks upon grantors in their last illnesses, were reasons given, at different periods, for the enactment of statutes of mortmain, and in later years the effect of depriving heirs of their rights of inheritance has been emphasized. None of these reasons apply with force to donations direct to charity, except the supposed right of heirs. This right has been over-emphasized. The same effect results in this regard where the testator by his will devises his land to individuals who would not otherwise inherit it. The right to make a will necessarily confers the right to divert the lands from the legal channel of inheritance. Often there are no direct or close heirs at law, or, if so, they are not worthy to inherit, or there may be no heirs at all. But whatever the reason for the distinction, the fact remains that under section 269 of the Mississippi Constitution a devise direct to charity is not prohibited. The case at bar proceeds throughout on the theory that there is a trust of the lands — a legal trust growing out of the mere fact of the title being in the corporation for the benefit of its members. That is not the meaning of the section. The trust covered by that section is a trust created by the testator, and not the kind of trust which corporations, public or private, bear to their stockholders or members.
I will now review the Mississippi cases nearest in point on the question under consideration:
The opinion in chief in the case at bar relies upon Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737, decided in 1895. That case is entirely different from the case under consideration, and illustrates in a striking way the point I am trying to make. In that case Blackbourn devised *Page 267 the land to the Senatobia Educational Association, to be applied by the 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, 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.'"
This is a trust, pure and simple, created by the testator. The trustee is named, the duties and powers of the trustees are set out, and the beneficiary is specified; and the trustee is a different person from the beneficiary. The title to the property is placed in one person, and the beneficial use is in another, which is the very essence of a trust. It will be noticed that even in this case Judge Whitfield was doubtful about the correctness of the decision.
In Hailey v. McLaurin's Estate, 1917, 112 Miss. 705, 73 So. 727, Dr. McLaurin bequeathed to the Jackson Bank, as trustee for the Mississippi State Charity Hospital, the sum of $25,000 out of his personal and real property for the use of the Mississippi State Charity Hospital. The Charity Hospital was empowered under chapter 115 of the Laws of 1910 to receive bequests of property. It appears that the land was located in Tennessee. The court upheld the bequest and devise.
In Maas v. Sisters of Mercy of Vicksburg, 135 Miss. 505, 99 So. 468, 469, Maas devised the land to three members of the Sisters of Mercy. The constitution and by-laws of the Sisters of Mercy require the sisters to take vows of poverty and obedience, in effect depriving the sisters of all right to own property in their individual capacity, the property owned by them individually inuring to the benefit of the society. There was then in this case a trust, the title of the property being in the three sisters for the benefit of many others.
Also, the Court dealt with this case as though it were *Page 268 a religious organization, saying: "The Sisters of Mercy of the Catholic Church is an organization through which the Catholic Church carries on a large part of its religious, charitable, and educational work. It is a monastic sisterhood, established in Ireland by Catherine McAuley in 1827. Notwithstanding its origin is comparatively recent, the society has extended its charitable, religious, and educational work over a large part of the earth."
Greely v. Houston, 148 Miss. 799, 114 So. 740, was a trusteeship. Three individuals were named as trustees, the will setting out their duties, and prescribing their powers. It not only gave property to different charities, but also to three churches of different denominations. It was clearly within the prohibition of section 269 of the Constitution.
In the case of Anderson v. Gift, 156 Miss. 736, 126 So. 656, 658, the testator used this language: "I do hereby designate and appoint J.L. Holley and F.F. Anderson as, and to act as, trustees, under this my last will and testament, and I do hereby give, devise and bequeath unto them, as such trustees, in trust, all of my property, real and personal, wherever located or situated, not hereinabove specifically devised or bequeathed, to be held in trust and disposed of by them for the following purposes and none other, . . ." And provided that the trustees should sell all property, and convert it into money whenever, and in whatever manner the trustees thought best, with power to execute deeds, convey titles; and then set out what the trustees should do to promote education in Alcorn county. This was a typical trust.
In the National Bank of Greece v. Savarika, 167 Miss. 571,148 So. 649, the testator attempted to create a trust. The will provided that the money should be forwarded to the National Bank of Greece, to be kept by it as an endowment for the benefit of a school for girls in Macedonia. It was an attempt to vest the title to the property in one person for the benefit of another.
The case at bar narrows itself to the one point — *Page 269 whether the mere placing of the title to the land in the corporation is a trust for the benefit of its members, within the meaning of section 269 of the Constitution. That question has not been decided by this court, but it has been decided in other jurisdictions.
In 2 Page on Wills (2 Ed.), at page 1717, it is said, "A gift to a corporation or organization to enable it to carry out some or all of the purposes for which it was formed does not create a trust."
In Williams v. Williams, 8 N.Y. 525, the court said: "Though there is a trust, in a certain sense, attached to the property, it is not such a trust as is recognized by that name by the laws of property. The ownership of the property of a corporation is as absolute and unqualified as that which the State has in its property. Its use is restricted to certain purposes which the law deems beneficial, and its alienation is prohibited, but no other person has any estate or legal interest in it."
14 C.J.S., Charities, Sec. 45, p. 498, uses this language: "Generally speaking, a provision for a direct gift to charity or to a charitable organization is not a trust in the eyes of the law; it is a charitable donation."
In Doan v. Vestry, 103 Md. 662, 64 A. 314, 317, 7 L.R.A. (N.S.), 1119, 115 Am. St. Rep. 379, one devise was to a church for purposes which the rector might indicate, and the court said: "Holding, as we do, that the purposes and uses for which she desired this property to be used were the corporate purposes of the donee, it is immaterial that she wished the rector to determine for which of these corporate uses it should be employed, or whether this was determined by the rector or by the vestry. Inasmuch as the whole beneficial interest in the property is given to the Vestry of the Parish of the Ascension, the true reading of the will is that the estate given is not an estate given in trust, but one devised to the corporation for its general and corporate purposes. Bennett v. [Baltimore] Humane Impartial Society [91 Md. 10, 19, 45 A. 888, 889]; Woman's Foreign Missionary Society v. *Page 270 Mitchell [93 Md. 199, 203, 48 A. 737, 739, 53 L.R.A. 711]. Thelegal estate and beneficial interest, being thus vested in thedefendant, the estate it takes is an absolute fee simple." (Italics according to case.)
14 C.J.S., Charities, Sec. 45, page 499, contains this statement: "Where a will gives the residuary estate to executors to be transferred to a corporation to be formed for charitable purposes, nothing passes directly to the corporation, but it takes only by conveyance from the executors; but, after so taking, it does not hold the property in trust in the true sense of the term, but as its own, to be devoted to the purpose for which it was created."
In re Hart's Will, 205 App. Div. 703, 200 N.Y.S. 63, it was held: "A will which provided that `I give and bequeath the books composing my library to the Society for Ethical Culture, . . . to dispose of same for cash or as they may deem best for the purpose of founding and supporting a school or classes for the instruction of children and the young of the nature of their physical organs,' made an absolute gift, and did not create a trust, especially as other paragraphs of the will created certain trusts by using specific words."
The case of Hobbs v. Board of Education of Northern Baptist Convention, 1934, 126 Neb. 416, 253 N.W. 627, 633, reviews a number of cases, setting out the rule that property which is conveyed to a corporation, although organized for charitable objects, "does not create a trust in any such sense, as that term is applied to property. The corporation uses the property, in accordance with the law of its creation, for its own purposes . . ." A number of these cases also held that although the testator prescribes the use, objects, and manner of use of the property, this is not a trust, if these are in accordance with the authorized powers of the corporation, the act of the testator being no more than the law authorizes and directs the corporation to do.
In Preston v. Howk, 3 App. Div. 43, 37 N.Y.S. 1079, 1082, the court held that a legacy to trustees of a church *Page 271 "to be used by them to help defray the expense of preaching the gospel in said church from year to year" was a gift for a corporate purpose, and not a trust.
In the case of Danforth v. City of Oshkosh, 119 Wis. 262, 97 N.W. 258, 264, the court stated the rule in these words: "The decided cases are numerous, however, which declare the conclusion that, if the use limited is distinctively and purely a corporate one, the corporation itself holds the beneficial or equitable right, which therefore merges in the legal title, if that also be held by it. The right of individuals interested in the use of the property is, as members, to compel the corporation to perform its duties as a corporation, not, as cestuis que trustent, to regulate its conduct as a trustee."
In the case of Sherman v. Richmond Hose Co., 230 N.Y. 462,130 N.E. 613, 614, the bequest was to a corporation: "To be kept at all times intact and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct." The corporation was organized to aid in the suppression of fires in a named village. The court said, "This gift created no trust. And, the title of the property vesting at once, there was no suspension of its ownership or of its alienability.
In the case of Whitmore v. Church of the Holy Cross, 121 Me. 391, 117 A. 469, 471, the testatrix devised her homestead to the First Congregational Parish of Gardiner, "as a parsonage." The court said, "A legacy absolute in terms, but suggesting a particular use, does not create either a condition or a trust."
It would unduly lengthen this opinion to quote from other cases. See Corporation of Chamber of Commerce of New York v. Bennett, 143 Misc. 513, 257 N.Y.S. 2; Grear v. Sifford, 289 Ill. App. 450, 7 N.E.2d 371; Brigham v. Peter Bent Brigham Hospital, 1 Cir., 134 F. 513. *Page 272
It will be seen from the foregoing cases that a devise is not rendered the less absolute, or converted into a trust, because the provision specifies that the donation shall be employed for one or more of the purposes for which the charitable organization benefiting was formed.
It is common knowledge that gifts and donations to public charities do not violate the rule against perpetuities. 10 Am. Jur. 596, section 17, and cases in footnote 18; 2 Am. L. Inst., Rest. Trusts, page 365; Sherman v. Richmond Hose Co., supra; Note Ann. Cas. 1917E, page 867.
No public policy is violated, either as to the object or result of this devise. As to the object: "At common law a trust in the nature of a public charity was looked upon with such favor that it was not permitted to fail even by reason of impossibility of carrying it out according to the conditions prescribed by the donor." Our public policy is favorable to charities. As the heart of man emerges from the savage state it begins to beat in sympathy with its fellow beings. This corporation was created by act of the Legislature, and from time to time the State of Mississippi through appropriations direct to the Old Ladies' Home, has donated to its objects, there being an appropriation to it for the current year.
As to the effect, the title is held absolutely by the corporation. There are no conditions or restrictions other than the general obligation imposed by law on all corporations for the benefit of its members, to use the property for their benefit. It can convey the property at any time.
Public policy is further shown by the recent overwhelming vote of the people fundamentally modifying sections 269 and 270 of the Constitution, by adoption of amendments thereto, permitting the devise of lands, within named limits and conditions, for religious purposes
The suggestion of error should be sustained.
Griffith, J., concurs in this opinion. *Page 273