CONCURRING OPINION. I agree with the majority opinion that the judgment should be reversed. However, I feel their opinion goes farther than is necessary to reach such conclusion, and in doing so contravenes fundamental principles of law applicable to bequests of the character here construed.
I believe this case could and should be decided on the authority of the case of Chicago Title and Trust *Page 608 Company v. Zinser (1914), 264 Ill. 31, 105 N.E. 718, cited and quoted from in the majority opinion. Applying the reasoning of that case to the question here considered, it is apparent Ida M. Lovett, in making the bequest to the Bible Institute Colportage Association, knew that its directors, officers and stockholders might change from time to time, and that the Illinois statute authorized a change of name or place of business, enlargement or change of the object for which the Corporation was formed . . . and the consolidation of the corporation with any other corporation then existing or that might thereafter be organized. She therefore contemplated that these changes might occur, and that the Bible Institute Colportage Association might be consolidated with some other corporation such as the Moody Bible Institute of Chicago, and that it would thereby cease to exist and become a component part of a new corporation. This is exactly what occurred, and Ida M. Lovett knew of the consolidation before her death. If, as held by the Supreme Court of Illinois in the last cited case, the new corporation was entitled to execute the trust in that case, I can see no reason why in this case under the Illinois statute the new corporation should not receive the bequest.
I cannot agree that the bequest herein creates a charitable trust. It is, in my opinion, a charitable gift. In Bogert,Trusts and Trustees, Vol. 2, p. 1031, § 324, it is stated, where the gift is outright and absolute no trust is involved.
"A legacy absolute in terms, but suggesting a particular use, does not create either a condition or a trust. 11 C.J. 351, § 68.
In 14 C.J.S. 498, § 45, it is stated:
"generally speaking, a provision for a direct gift to charity or to a charitable organization is not *Page 609 a trust in the eyes of the law; it is a charitable donation. Such a provision is not rendered the less absolute or converted into a trust because the donor expresses a desire, request, or hope for, or suggests, a particular use or application, or because the provision specifies that the donation shall be employed for one or more of the purposes for which the charitable organization benefiting thereby was formed, or even that the bequest shall be in trust for such a purpose." (My emphasis.)
In 10 Am. Jur. 610, § 37, the rule is stated in these words:
"Gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense, do not offend against the statutes of perpetuities, and are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals."
The case of Ebenezer's Old People's Home, etc., v. SouthBend Old People's Home, Inc. et al (1943), 113 Ind. App. 382,48 N.E.2d 851, is in accord with these authorities and, in my opinion, directly controlling in this case. In that case the testator's will provided, in part, as follows:
"In the event there is an institution in the City of South Bend at the time of my death or within two years after the time of my death, which has for its purpose of its existence the maintenance of a home for old people irrespective of their religious beliefs upon at least a partial charitable basis, then I desire and direct my said executor to turn all the rest and residue of the property of which I may die seized to said institution."
Judge Crumpacker said, in reference to this provision:
"It is apparent to us that in the instant case the testator intended to give the residue of his estate *Page 610 to some institution in South Bend which had for its purpose the maintenance of a home for old people to be used by such institution in the carrying out of its purposes and not in trust for another. The charity in which such an institution was engaged appealed to the testator and he gave to it the residue of his estate to aid in the carrying out of its purposes without other restriction or limitation. Such a bequest has none of the characteristics of a trust and amounts to nothing more than a gift to a charitable institution in whose purposes and objects he was sympathetic."
I have found no authority to the contrary.
In this case the first sentence of the questioned clause of the will provides as follows:
"All the rest, residue and remainder of my estate, of whatever kind and wherever situated, of which I may die possessed, I give, devise and bequeath to The Bible Institute Colportage Association of Chicago, incorporated under the laws of the State of Illinois, with its main office at 843-845 North Wells Street, Chicago, to be used in the publication and dissemination of evangelical Christian literature in harmony with its Articles of Incorporation, and I direct my executors, hereinafter named, to turn over to the said Association all stocks, bonds, certificates of deposits and cash, within one year after my decease, or as soon thereafter as possible, and that the receipt of the Association shall be sufficient discharge of my executors from their obligations under this will." (My emphasis)
And then the last sentence of this clause concludes with this phrase:
"and it may then use the entire residue of my estate in the work of the Association, free from all obligations whatsoever." (My emphasis)
It seems to me it would be difficult to make a definite and absolute gift in more specific language.
NOTE. — Reported in 75 N.E.2d 666. *Page 611