Troutman v. DeBoissiere Odd Fellows' Orphans' Home & Industrial School Ass'n

The opinion of the court was delivered by

Doster, 0. J. :

This was an action to set aside the following deed made by Earnest Valeton DeBoissiere :

“deed of trust.

“This Indenture, Made this 11th day of May, 1892, between Earnest Valeton DeBoissiere, a single man, of Franklin county, in the state of Kansas, party of the first part, and Louis C. Stine, George A. Huron, Milo B. Ward, George W. Jones, and Charles L. Robbins, and their successors in office', as trustees of the party of the third part, in the state of Kansas, parties of the second part, and The DeBoissiere Odd Fellows' Orphans’ Home and Industrial School Association, of Kansas, party of the third part,

“Witnesseth : That said party of the first part, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and in the further consideration of a spirit of philanthropy and good will on the part of said first party, and of a desire on his part to assist in making a provision for the orphans of deceased Odd Fellows of the state of Kansas, does by these presents grant, bargain, sell and ’convey unto said parties of the second part, their successors and assigns, all the following-described real estate, situated in the county of Franklin and state of Kansas,, to wit: (Description omitted.)

“To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, forever, in fee ; in trust, nevertheless, and to and for the .uses, interests and purposes hereinafter' limited, described and declared ; that is to say :

“First: In trust to provide a home upon said premises for the orphan children of deceased Odd Fellows of the state of Kansas.

“Second: To control and manage the same as an industrial school and farm, and to maintain thereon such schools and mechanical shops as may be necessary and convenient for the use of the farm and for the education of the inmates of said home in domestic and mechanic arts, including instruction in mechanical trades, agriculture, plane geometry, practical, surveying, practical chemistry, practical geology, practical physics, and practical veterinary surgery.

“Third: The children in said home who are able ta do farm or garden work are to be reasonably employed, and account kept by the hour, and the reasonable value of such work paid to the support of said home.

“Fourth: All products to be used, so far as necessary, in carrying on said home, but to be accounted for at a fair market price.

“Fifth: Said first party hereby reserves the right, during his natural life, to reside upon said premises, and said parties of the second part are hereby required to provide him with suitable rooms in said home, comfortably furnished and kept, and to provide him with proper board and care without charge, whenever he shall choose to occupy the same.

“Sixth: The net income of the farm to be applied by said parties of the second part to improvement and necessary repairs of said premises and buildings thereon, and the employment of the teachers in the industrial school herein provided for. And the support of the children in said home, for every kind of expenses except teaching, to be provided by the Odd Fellows of Kansas. And said party of the first part, being a single man, does hereby covenant, promise, and agree that the within-described premises are free, clear and discharged of and from all encumbrances, of whatever nature or kind soever; and that he will warrant and forever defend the same unto parties of the second part and the parties of the third part, their heirs and assigns, against said party of the first part, his heirs,, and all and every person or persons whomsoever, lawfully claiming or to claim the-same.

“And the said parties of the second part covenant faithfully to perform and fulfil the trust herein created.

“In Witness Whereof, the said parties have hereunto set their hands, the day and year first above written. • E. V. DeBoissiere,

Party of the first part.

Louis C. Stine,

George A. Huron,

Milo B. Ward,

George W. Jones,

Charles L. Robbins,

Parties of the second part.”

The case has been under consideration for a long time. At the March sitting for 1901 a judgment of affirmance was rendered by a divided court. (64 Pac. 33.) A petition for rehearing was allowed,.a re-argument had, and since then we have given to the questions presented much careful consideration. The conclusion of the majority of the court now is that a judgment of reversal should be ordered.

That the foregoing deed is void on its face, unless the trust it attempts to create is a public charity, is beyond controversy, for it violates the rule against perpetuities of title in estates. Not only by necessary implication, derivable from the recital of its object, but by its express language, it vests a perpetual trust in the described lands in the trustees named and théir successors. Therefore, the only question is whether the trust the instrument attempts to create is in aid of a public charity, because trusts in perpetuity in aid of such object are not within the prohibition of the rule. Obviously that question depends on the definition of a public charity, and concerning that definition there should not be, in reason, much dispute. We may differ as to .whether a particular case comes within the definition, but the definition itself must be fixed and unvarying, else there can be no law on the subject, and each case would be made to depend on the arbitrary will of the judges.

Much learning has been displayed, in judicial opinions and in law-books, in the discussion of the question whether, antecedent to the statute of Elizabeth (43 Eliz.), chancery exercised the jurisdiction it now possesses with reference to charities, but the learning is more curious than important. The cases decided before that statute are only matter of history, and none of them is ever citffd now as an authority concerning the law itself. Judge Story says :

“But however extensive the jurisdiction may originally have been over the subject of charities, and however large its application, it is very certain that since the statute of Elizabeth no bequests are deemed within the authority of chancery, and capable of being established and regulated thereby, except bequests for those purposes which that statute enumerates as charitable, or which by analogy are deemed within its spirit and intendment. A bequest may in an enlarged sense be charitable, and yet not within the purview of the statute. Charity, as Sir William Grant (the master of the rolls) has justly observed, in its widest sense, denotes all the good affections men ought to bear towards each other; in its more restricted and common sense, relief to the poor. In neither of these senses is it employed in the court of chancery. In that court it means such charitable bequests only as are within the letter and the spirit of the statute of Elizabeth.” (2 Story, Eq. Jur. §1155.)

Judge Story summarizes the charitable uses provided for by the statute of Elizabeth as follows :

“The uses enumerated in the preamble of the stati ute as charitable are gifts, devises, etc., for the relief of aged, impotent and poor people; for the maintenance of sick and maimed soldiers and mariners; for schools of learning, free schools, and scholars of universities; for repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways; for ■education and preferment of orphans ; for or towards the relief, stock or maintenance for houses of correction ; for marriages of poor maids ; for supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed ; for relief or redemption of prisoners •or captives; and for aid or ease of any poor inhabitants, concerning payments of fifteenths, setting out of ■soldiers, and other taxes. These are all the classes of uses which the statute in terms reaches.” (2 Story, Eq. Jur. §1160.)

It will be observed that every one of these uses was, under English law, a strictly public use. Everything proposed was a thing which the government itself might properly do, for it was the business of government to repair churches even, since religion was a state affair, and parliament had the undoubted power to provide from public funds for “marriages of poor maids” by giving them portions as inducements to bashful swains. Every purpose proposed was a public purpose — under English law, a governmental purpose. 'The settled definition of “public charities” has agreed with this view, however widely some courts may in recent times have departed from that definition in the •decision of particular cases. Thus :

“Definition of charity: A gift to a general public use, which extends to the poor as well as to the rich : many instances in the statute 43 Eliz. carrying this idea, as for building bridges, etc. The supplying of water is necessary as well as convenient for the poor .and the rich.” (Jones v. Williams, 2 Ambl. 651.)

“The twenty-one cases enumerated in the statute, .and the others constructively within it, are of a public nature, tending to the benefit or relief, in some shape or other, of the community at large.” (Babb v. Reed, 5 Rawle, 151 [Pa.], 28 Am. Dec. 651.)

“The word ‘charity,’ in its widest sense, denotes all the good affections men ought to bear toward each other; in a more restricted sense, it means relief or alms to the poor; but in a court of chancery the signification of the word is derived from the statute of Elizabeth. Hence it has been said that those purposes are considered charitable which are enumerated in the statute, or which by analogy are deemed within its spirit or intendment.” (2 Perry, Trusts, [3d ed.], § 697.)

The same author says that the statute “established an enumeration, or kind of definition, standard, or test, to which all gifts and grants in trust could be brought, in order' to determine whether they were charitable.” (§696.)

“By public must be understood such as are constituted for the benefit either of the public at large or some considerable portion of it answering a particular description.” (1 Lewin, Trusts, 98. Text-book Series.)

Of necessity the purpose must be public, for the property becomes public property, to be dealt with as-such. The following passages from the opinion of the supreme court of the United States in the Mormon Church case are instructive on this point:

“Though devoted to a particular use, it is considered as given to the public, and is, therefore, taken under the guardianship of the laws. . . . Property given to a charity becomes in a measure public property, only applicable as far as may be, it is true, to the specific purposes to which it is devoted, but within those limits consecrated to the public use, and become part of the public resources for promoting the happiness and well-being of the people of the state. Hence, when such property ceases to have any other owner, by the failure of the trustees, by forfeiture for illegal application, or for any other cause, the ownership naturally and necessarily falls upon the sovereign power of the state ; and thereupon the court of chancery, in the exercise of its ordinary jurisdiction, will appoint a new trustee to take the place of the trustees that have failed or that have been set aside, and will give directions for the further management and administration of the property; or if the case is beyond the ordinary jurisdiction of the court, the legislature may interpose and make such disposition of the matter as will accord with the purposes of justice and right. The funds are not lost to the public as charity funds; they are not lost to the general objects or class of objects which they were intended to subserve or effect. The state, by its legislature or its judiciaiy, interposes to preserve them from dissipation and destruction, and to set them up on a new basis of usefulness, directed to lawful ends, coincident, as far as may be, with the objects originally proposed. . . . ‘ In this country, the legislature or government of the state, as parens patriie, has the right to enforce all charities of a public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it.’ But here, the legislature is the parens patriie, and, unless restrained by constitutional limitations, possesses all the powers in this regard which the sovereign possesses in England.” (Mormon Church v. United States, 136 U. S. 1, 51, 56, 57, 59, 10 Sup. Ct. 792, 34 L. Ed. 478.)

As an illustration of the exercise of this power, a few years ago the legislature of Pennsylvania enacted a law that where public charities could not be carried into effect,.and no other disposition should be made by the legislature, the property was to be sold and the proceeds be covered into the treasury. (See Trim’s Estate, 168 Pa. St. 397, 31 Atl. 1071.)

We are not now concerned with the application of the doctrine of cypres, which was the matter principally under consideration in the Mormon Church case, but with the determination of the public nature of a charity by the application to it of the test of public visitation and control.

If property devoted to public charity be endangered or illy administered, the attorney-general, as such, may proceed by information to protect the estate. This is settled law in this country as in England. Hence, if the trust be not of such nature as that the attorney-general could bring an information, it cannot be a public charity. Under what circumstances, then, can the attorney-general bring an information? Only where the matter is of public interest; only where the entire people, as the people, are interested in the subject of the controversy.

“The fundamental ground on which the state is permitted to sue in these cases is, that there has arisen a public right, and of a nature which makes it the duty of the state, through its law officer, to take action for its maintenance and enforcement. And the proceeding before us necessarily assumes the existence of a public right capable of being asserted and carried out in the court of chancery, in a suit by the attorney-general, wholly adverse to all private parties and all private interests.” (Attorney-general v. Soule, 28 Mich. 153, 155.)

It was long ago settled in this state that the public duty which the attorney-general may sue to enforce, or the public wrong he may sue to prevent, must be a duty or a wrong “affecting the whole community” (Bobbett v. The State, ex rel. Dresher, 10 Kan. 14); “affecting the community in general” (The State, ex rel., v. McLaughlin, 15 Kan. 233, 22 Am. Rep. 264) ; a matter affecting “the interests of the entire public” (School District v. Shadduck, 25 Kan. 467). See, also, City of Argentine v. The State, ex rel., 46 Kan. 430, 26 Pac. 751. It follows that the charities which the attorney-general can sue to enforce or conserve must be' charities of a character so public as to interest “the whole community” — “the community in general” — “the entire public.”

As the property becomes public property, which the legislatui'e, limited by the charitable purpose, may deal with as such, and suits concerning it may be maintained by the attorney-general, which officer can maintain an action only where “the interests of the entire public” are affected, it is clear that a public charity is one of such character that it might be established by government itself and be supported by taxation, for what is a public purpose which may be aided or maintained by taxation but a purpose “affecting the community in general”? So, if we did not have the statute of Elizabeth as a guide, and if no definition had ever been authoritatively given, we must deduce from- the incidents enumerated the definition of a public charity laid down in the cases already quoted. These incidents would compel us to define it as “a gift to a general public use” — a gift for an object which the state itself ought, or lawfully might, undertake and accomplish with public resources.

As said by the supreme court of the United States, “the law respecting property held for charitable uses of course depends upon the legislation and jurisprudence of the country in which the property is situated and the uses are carried out” (Mormon Church v. United States, supra) ; so that a gift which might be a valid public charity in England may not be so in the United States. England has no written constitution. Parliament is the nation in its organic capacity. When voting on a statute the lords and commons exercise the same sovereign power the people of this country would exercise in voting on a new constitution. What parliament does is done in sovereign intendment by Great Britain, and no court can question the validity of the act. So, if parliament should choose to endow an institution exclusively for Masons, Odd Fellows, or Methodists, no power would exist to restrain the appropriation of the public funds. English courts may, therefore, declare that to be a public charity which could not be such under our written constitutions. The fourteenth amendment to the federal constitution forbids legislation in favor of artificial classes, and prevents the appropriation of public funds to other than strictly public uses.

If, then, a public charity is a gift to a public object which the state itself, with public resources, should, or lawfully might, foster,- can the trust in question in this ease be a public charity? The state can and should provide for the care of the orphans, but would a law be valid which provided for the establishment and maintenance of a home for the orphans of deceased Odd Fellows? It is the state’s duty, as we assume, to provide for the children of the soldiers who fall in its battles, and hence, as we again assume, it may lawfully establish and maintain homes for their orphans ; but could it lawfully establish at public expense a home for the orphans of deceased democratic or republican soldiers? Classification in the matter of public favor must be based on some obvious distinction having reference to the merits of the object to be attained. It must not be arbitrary or artificial. The class must stand in a natural and meritorious relation to the public at large. As said in the dissent filed to the decision of this case as formerly made :

“A charitable trust for the relief of disabled seamen, or railroad employees, or coal-miners, would doubtless be a valid public charity, because those persons perform necessary labors in the work of the world. Commerce could not be carried on without them, and in the prosecution of the enterprises with which they are connected they are subjected to daily hazards of disease and daily hazards of life and limb. As classes they stand therefore in such natural relations to society as to have claims upon it; hence, such charities as might be administered in their behalf and in recognition of their claims would be public charities. But a charity founded for the benefit of such seamen as belonged to the boatmen’s union, or such railroad employees as belonged to the railroadmen’s union, or such miners as belonged to the miners’ union, would not be a public charity. It would be private, because it would be of private concern to the members of the union only. In Board of Schoolland, Commissioners v. Wadhams, 11 L. R. A. 211 (25 Pac. 722,) it was said : ‘The requisites of a valid private trust and one for a charitable use are materially different. In the former there must not only be a certain trustee who holds the legal -title, but a certain specified cestui que trust, clearly identified or made capable of identification by the terms of the instrument creating the trust; while it is an essential feature of the latter that the beneficiaries are uncertain, a class of persons described in some general language, often fluctuating, changing in their individual members, and partaking of a quasi-public character.’ Authorities to the same effect might be multiplied. The beneficiaries of a valid public charity must therefore partake of a gwasi-public character; that is to say, the public must be under obligations to them as a class. As a class they must have some claim upon the public, such as the claim to nurture in infancy, to education in youth, to healing if diseased, to asylum if insane, to support if indigent, and that claim must be one founded in nature and cognizable by the instincts of a common humanity. It cannot be one growing out of, or existing in, the private conventions or class associations or artificial distinctions of men. The public is under obligation to educate and provide homes for its orphans, not because they are the childred of deceased Odd Fellows or Masons, or deceased Methodists or Presbyterians, or deceased republicans or democrats ; but because they are fatherless, and because the public must therefore stand to them in loco parentis. Their orphanage involves them in a natural relation to society.. It clothes them with that public interest which demands the aid and protection of society ; but the obligations of society to them can be no wise augmented by the fact that they are the children of the deceased members of some particular cult, sect, or party, because charity, as the public is under obligation to administer it, knows no distinctions of creed, or sect, or party. It knows only the unfortunate, the needy, the worthy.”

"Who, with the settled meaning of public charities before him, can fail to see the pertinency of this paragraph from the original majority opinion in Burd Orphan Asylum v. School District, 90 Pa. St. 29, as the case was first decided ?

“A public use, whether for all men or a class, is one not confined to privileged persons. The smallest street is public, for all have an equal right to travel on it; but a way used by thousands, which may be shut against a stranger, is private. Would Girard College be a public charity if the male children entitled to admission were limited to sons of deceaséd Masons or Odd Fellows ? If Pennsylvania Hospital closed its gates to all but Methodists or Baptists having recent injuries, the people would not believe it a purely public charity in the intendment of their constitution. A charity for the poor of a parish or township is public ; but not, if confined to poor Presbyterians in the municipality. Public charities may be restricted to a class of the people of the state or of a municipal division ; at the same time, they must be general for all of the class, within the particular municipality. ‘Thus, a blind asylum is only for the blind in the community.’ If it be completely public, all the blind in that community are on an equal footing, and, should its capacity be insufficient for all, there is no mistaking justice in the order of admission. To open its doors only to the blind of a particular religious denomination, or of a beneficial association, or of a political party, shuts them against the public. A known and recognized class, though not generally poor, or diseased, or decrepit, may be the subject of a public charity, as sailors ; yet, if the endowment were limited in its benefits to sailors who are members of a designated sect, there could hardly be two opinions of its character.”

' But it is contended that, inasmuch as it is the duty of the state to provide for the nurture and instruction of orphans, the children of deceased Odd Fellows are of the class thus to be cared for, and that a trust providing for them in such respects relieves the public burden pro tanto; hence, that the trust in this case is in ease of the public, and is, therefore, within the definition. If this contention were tenable, then a bequest for the support of the future destitute descendants of the grantor, DeBoissiere, would be a public charity, for his destitute descendants would be of the class which the state should relieve, and, to the extent of his bequest, the public burden would be eased. A bequest of this precise character came before the supreme judicial court of Massachusetts for consideration in Kent v. Dunham, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, and the very point thus suggested was made. Certain property was'given to trustees with instructions “to appropriate such part of the principal and interest as they may deem best for the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid.” The court thus stated the question :

"The gift in the case at bar is solely for the benefit of the children of the testator and their descendants. The only public interest there can be in connection with it is, that, whereas there may be hereafter certain destitute persons, descendants of the testator, who might otherwise become a public charge, they will be entitled to relief from this fund.”

The decision, of course, was that the trust was not a public charity. The very contention made here was forcibly answered in Phila., Appellant, v. Masonic Home, 160 Pa. St. 572, 579, 28 Atl. 954, 23 L. R. A. 545, 40 Am. St. Rep. 736 :

“Nor does the argument that, to the extent it benefits Masons, it necessarily relieves the public burden, affect the question ; there is no public burden for the relief of aged and indigent Masons ; there is the public burden of caring for and relieving aged and indigent men, whether they be Masons or anti-Masons ; but age and indigence concern the public no further than the fact of them ; it makes no inquiry into the social relations of the subjects of them. The public is interested in the relief of its members, because they are men, women, and children, not because they are Masons.”

It would serve no good purpose to con over the many cases which have considered phases of the general subject of trusts for charitable uses. It is admitted that some of them are, apparently at least, in opposition to the view herein expressed. It is submitted, however, that in many instances the judges were influenced by their natural and creditable desire to preserve the gift to the beneficent uses intended by the donor, and this, also, is our desire. We would like to preserve the DeBoissiere gift to the orphans for whom it was apparently intended, but in order to do so we would have to hold, within the inevitable logic of the decision made, that it is in the power of an individual, by the making of such gift to a private, special, and artificially existing class, to limit his bounty to them, and to them alone, for all time to come; to exempt it, from taxation for all time to come; to impose upon the public the obligation for its care and superintendence for all time to come ; and, if need be, for all time to come to lay upon the public the duty of its maintenance and support. That, we hold, cannot be done. There is as much ground for upholding such gifts in trust to the use of the orphans of deceased republicans or democrats, or deceased Methodists or Baptists, and, under the pretense of their being public charities, perpetuating them among the moral and political obligations of the state to those special classes, as there is for upholding a perpetual gift in trust to the use of the orphans of deceased members of a fraternal society. Absolutely no distinction can be drawn between such cases. That is not a public charity which the state is not under obligation in the first instance to endow for the use of the very class to be benefited; and the state is not under obligation to provide and maintain a home for the orphans of deceased Odd Fellows.

The rule against perpetuities was one of the wisest inventions of the common law. It was devised to prevent the perpetual entailment of estates and to give them over to free conveyance. Were it not for that rule it would be within the power of a land proprietor to decree the ownership of his estate to the remotest generation. That rule should not be relaxed except in the interest of the general public, and, as a practical fact, it is not relaxed except where the public itself holds the title and is the trustee, or, if not holding the title and acting as the trustee, possesses an admitted right of visitation and control. That right of visitation and control it cannot exercise except in behalf of the entire body politic, and the body politic has not the right of visitation to a privately endowed home for the orphans of deceased members of a secret fraternity.

The courts of Pennsylvania have made many decisions bearing more or less directly on the question here involved. They are not all reconcilable one with another, and the judges do not pretend that they are. One of the most recent, if not the latest, was made in Phila., Appellant, v. Masonic Home, supra, an extract from the majority opinion being hereinbefore quoted. That decision is bottomed upon the true ground — the artificiality of the class to whose use the trust was made, and the non-obligation of the public to such class, as a class.

Our dissenting associates, however, observe a distinction in two particulars between that case and this one. The first is that the claim in that case was one of exemption from taxation, and was therefore to be viewed critically, and allowed only upon a clear showing of right. It is undeniable that claims of exemption from the common and necessary burdens of citizenship, such as taxation, are to be rejected unless enforced by the strict letter of the law. The court, however, did not draw that rule to its aid in the determination of the case, for the very good reason that it could not do so without neutralizing or disallowing another rule of construction and, also, of legal policy, to wit, that ‘! the courts look with especial favor upon grants to charity, and endeavor to carry them into effect if the same can be done consistently -with the rules of law.” Had the claim of exemption in that case been as a matter of gratuitous favor, apart from all considerations of merit as a basis for making it, there would have been room to apply the rule of strict construction spoken of, but the claim was not rested upon that ground, but upon the broader one that a home for'indigent Free Masons was a public charity. Rested as it was upon that ground, the question involved a consideration of the nature of public and private charities, and the claim of public charity was therefore disallowed.

Another distinction which our associates observe between the Pennsylvania case and the one before us, as stated by them, is that in that case the public nature of the charity was denied because its beneficiaries became such upon voluntary, rather than by their involuntary, action ; and it is gravely urged that inasmuch as the objects of the DeBoissiere charity did not choose to be bor'd. the. children of Odd Fellows, but became such by fortuitous circumstance over which they had xxo control, they as a class are entitled, and without violence to the rule of the Pennsylvania •case, to be regarded as the objects of a public charity. The rationale of the Pennsylvania case does not justify the imputation of such a fine distinction. The decision of that case is put upon the broad ground of the artificiality and pxfivate character of the class claiming the benefits of the charity, as opposed to the naturalness and public character of the class to whom society is under the obligations of charity.

Nor can.any such distinction exist as the one which our associates endeavor to draw when they hold that those who voluntarily connect themselves in a private relationship may not be, by virtue of such relationship, the recipients of public chaxúty, while on the other hand their orphan children may be. Let us see : A gift in trust to the use of A. and B., husband and wife, is not a public charity, because their association is voluntary, and the public is no more concex-ned to care for A. and B. than for other husbands and wives; but a gift to the orphans lineally descended from A. and B. is a public charity, because such orphans did not voluntarily become such, nor voluntarily become the descendants, of A. and B. Take another illustration: Any one of our brethren may make a trust conveyance for the benefit of his-female orphaned descendants; more than that, for-those of them who bear his name; more than that,, for those who bear the Christian name of his wife. Now, because none of them voluntarily descended from him nor voluntarily became an orphan, his conveyance is a gift to a public charity, and without the-rule against perpetuities. Thus does such logic at, once reduce the proposition to an absurdity.

Lament is made that the decision we announce may deter the charitably disposed from those benefactions to the unfortunate and needy which they would be otherwise disposed to make. Not so, in our judgment.Among the millions which the benevolently inclined of this country have contributed to the teaching or healing or care or cure of others, we venture to say not a tithe even — only an inconsiderable fraction— has been donated to class favorites, and none of it in a spirit of class favoritism , Where donations to an artificial class have been m ide, as in the DeBoissiere gift, they would have been flnade as readily to objects of general beneficence had the donors known- the requirements of the law. To suppose that DeBoissiere would not have disposed of his estate to the use of some objects of worth or need, because he could not limit his gift within the narrow circle of a secret society, is a reflection upon the memory of that kindly and benignant old gentleman we are not disposed to make. Charity is not exclusive, and draws no distinction of class or caste.

The plaintiffs in this case claim title by conveyance from the sole heir of DeBoissiei’e, the grantor before mentioned. The defense of the defendants is solely on the assumed title conveyed by the trust instrument hereinbefore quoted. It follows that, such instrument being void, the plaintiffs are entitled to prevail.

It is therefore ordered that the judgment of the court below be reversed, and that the plaintiffs have judgment as prayed for by them.

Johnston, Smith, Greene, JJ., concurring.