FIELD. II. DREW THEOLOGICAL SE.MINARY.
S'11
nothing to the subject. McCormick v. Chamberlin, 11 Paige, 545, cited· by respondents, turned on the specific rule of the New York court of chancery, which is, of course, inapplicable here. In Colgate v. Compagnie Francaise, 23 Fed. Rep. 82, the question before us was directly involved, was very fully considered, and decided by J udge WALLACE against the respondents, a corporation. . What is there said applies as fully where an oath is dispensed with by the complainant. The excep. tions are sustained, and an order will be accordingly.
FIELD
et al.
t7. DREW THEOLOGICAL SEMINARY.
(Oircuit Oourt, D. Del.a1Dare. February 10, 1890.)
L
ClURITIES-CHARITABLB BEQUESTS-CONDITION SUBSEQUENT.
A condition, in a bequest for educating two young men for the ministry. that they shall, after entering it. pursue a certain-course, that was not optional with the minister. but subject to the control of the blBhop, is a condition subsequent, and does not a1fect the validity ()f the gift. A charitable bequest to a corporation not in existence at testator's deathl but to be thereafter created by act of legislature in acoordance with his will, lB vwid. A bequ4;l8t providing for the creation of a fund for the education of "two young men, for all coming time, " for the Christian ministry,. is a valid charitable use. . ..
S. 8.
SAXB-Bll:QUEST TO CORPORATION TO BE THEREAr'l'ER CREATED.
8.ulE--RBLIGIOUS EDUCATION.
4. SAXB-lNDE;J;INITENEY. . .
A bequest, in trust, ofa "sum of money sumcient to carrY out intention" "to proVide for the education of two young men, ** * where tlie trustees have accepted the trust, and young men have been appointed, and the expense of keepiJ;Jg them approximately known, is not void for indefiniteness. .
b1/ the OouTt.)
Bill in..equity by William M. Field and Hannah Riddle, surviving executors of the last will of James Riddle, deceased, against the Drew Theological Seminary of the Methodist Episcopal Church. Bates&: IJarrington, for complainants. Hoffecker & Hoffecker and 1'almage W. Fbater, for respondents. WALES, J. This suit is an amicable one, on bill, answer, and admitted facts·. The complainants, after stating that they have been advised that some doubt exists as to the validity of a certain bequest contaSned in the will of their testator, and making the same a part of their bill, apply to the court for directions touching their duty in the premises, that they may be directed in what manner to proceed in order faithfully to execute the provisions of the ,will, and that the true construction thereof may be declared. . ... . 'Riddle, the testator, died August 21, 1873j and his will was dulyprobatep, on the 20th day of October, in thl) same year. The bein question is in these words: ,"14em,TtDefltll-First. I direct that my Eixecutors .8hallprovide. out of the money for the rents Of, my real estate, and i.lut9f.the profits oftbe
371
J'JIlDERAL REPORTER,· vol.
41.
business bUbe firm of James Riddle, Son & Company, a sum of money sufficient to educate in the Drew Theological College, in Madison; New Jersey, two young men for the ministry of t.he Methodist Episcopal Church, one of whom is to go on the foreign mission work, the other to become a member of the Wilmington Conference. It is my will that this is .to be continued perpetually, and that my son, Leander Franklin Riddle, and my son-in-law, Will· iam M.Field, shall so arrange the matter that a permanent fund shall be created for carrying out this, my intention of constantly providing for the . education of two young men for the work of the ministry in all coming time. and that they (my son and son-in-law) dIning their life-time shall have the power to make the appointments, and that after their decease that power shall be to the Wilmington Annual Conference to make selections; and, as soon as my said son and son-in-law shall create such a sum of money as they deem sufficient for the purpose above mentioned, the above devise shall not be a charge on my real estate." In a subsequent part of the will the testator gives instructions to his executors, in relation to this bequest, as' follows: "Item Twenty-Ninth. Having in this my will ordered and directed that my executora hereinafter named shall create. sufficient to produce an annual income adequate to proVide for the cons,tant educationaf two young men for the ministry in the'Methodist Episcopal Church at the Drew Theological Seminary, ... ... ... therefore, to fully insure the carrying out of my intention and desire in Teference to the several institutions 01' societies named in this item my will. after the decease of my executors hereinafter named, or their disability, from any cause, during their life-time; to perform ,the duties imposed upon them in reference to said institutions or sO\lieties, I do order and direct my beloved son, Leandet' Franklin Riddle, to procure from the legislature of the state ()f Delaware /l.D acL of incorporating a a board of trustees, they and their successors in trust, as shall be provided for in the act of incorporation to be procured as aforesaid, after the decease of my executors, or their disability, from any cause, to manltge the fund created for the purpose hereinbefore mentioned, shall take charge of the fund so created. and keep the same securely invested in the same manner as my executors are hereihidirected to do, so long as they continue to hold such funds, whicJl is perpetually. ... ... ... " Letters testarnentarywere granted to Hannah Riddle, William M. Field, and Leander F. Riddle, the executors named in the will. The executorshavepliid all the debts of the testator, and there remain sufficient and ample funds in their hands to pay and discharge the legacy bequeathedin.tbe twenty-first item. The Drew Seminary, founded in 1866', artd incorporated under the laws of the state of New Jersey in 1868, has since then been maintained, and is now in operation, at Madison,as an institution for the education of young men for the ministry of the Methodist Episcopal Church, and for service as missionaries to foreign countries. I01875,.an act was passed by the legislature of Delaware entitled "An act to incorporate trustees to carry out certain provisions of the 1a13t will and testament of James Riddle, deceased." By this .act; leander F. Riddle, WilliaxnM. Field, and Hannah Riddle, and theirstlCcessors to be selected as therein provided, nre nuthorized to receive "all sums of money devised by James Riddell, deceased, for religious· purposes, objects of charity,and educational purposes, in all cases whete;suchlegaciesare made to be perpetual, and pay over to the
FIELD 11. DREW THEOLOGICA.L SEMINARY.
person or persons duly authorized to receive the same, in such sum, and at such times, as the same is directed to be paid, under and by virtue of the last will and testament of James Riddle," etc. Between the years 1874 and 1880, the executors, in pursuance of the provisions of the will. paid to the trustees of the seminary $2,760, to provide for the education of certain young men who had been duly appointed by the said William M. Field and Leander F. Riddle; and the said moneys ,were duly applied for the education of the persons so appointed, who, upon the completion of their education at the seminary, became respectively members of the Wilmington conferp,nce or missionaries to foreign countries. Leander F.Riddle died May 17, 1880; and since that time the surviving executors have declined to make any appointments to the seminary. . The first question is, does the bequest contained in the twenty-first item come within the general description of a charitable use? Without entering upon a review oithe history of charitable trusts, it will be sufficient, in answer to this question, to refer to the well-settled principles and rules on this doctrine, and which are no longer open to doubt or cavil. A public or charitable trust is for the benefit of an uncertain class of persons, who are described in general language, and partake'of a quaai public character,as, for example, "the poor" of a certain district, in a trust of a benevolent nature, or "the children" of a certain town, ina trust for educational purposes. It is also a distinctive feature of a charitable trust that it may be unlimited in its duration, and is not subject to, nor controlled by, the statutes which prohibit perpetuities. The statute of 43 Eliz.· c. 4, enumerates the charitable uses which were to be held valid from the date of its enactment, but that enumeration was not an exhaustive one, nor was it intended, probably, to be exclusive, for it omits many objects which have since been decided to be publio charities, including bequests for the promotion of religion, which have long been admitted to be charitable uses in the highest sense; and it is now the universally established doctrine that all particular objects embraced within the general spirit,intent, and scope of the statute are to be considered as charitable unless' they violate some rule of public policy, or the provisions of some positive law. Bequests for educational purposes have also been held valid, as being clearly within the spirit of the statute. Such bequests embrace all trusts for the founding and supporting of schools, and other similar institutions, which are not strictly private; for the establishment of professorships and maintenance' of teachers; for the education of designated classes of persons; and for the promotion of science and scientific studies. These definitions of a trust" have been so frequently made and widely accepted as to remove them from the field of discussion. They are supported by a long lineo! decisions, to a few only of which it may be profitable to refer. Vidal v. Girard's Ex'rs, 2 How.. 127; Ould v. Hospital, 95 U. S. 803"; Jenesv. Habersham, 107 ·U. S. 174,2 Sup. Ct. Rep. 336; SaltonBtall v. Sandera, l1 Allen, 446; Jackson v. Phillips, 14 Allen, 539; State v. Griffith, 2 Del. Ch. 392; .Doughten v. Vandever, 5.Del. Ch. 58. See, also, 2 Porn. Eq. Jur. §§ 1018-1023. An instructive authority is that
874·
:1
I'BDERA1L
REPORTER,vol. 41.
I
Charity, 7 Eng·. Law& Eq. 73, (1851.) ·In that case, the testator' had beqtleathed to trustees the residue of his estate, for the maintenance, education, qualifying for and keeping at Oxford of a lad, in order to make him a minister of the Church of. England, which said lad the,tl'usteesshould,choose certain parishes'.named in the will, and .ofpal'ents who. were unable to maintain and educate him; and when and as soon as such person should have taken the degree of bach110r ofarts"ithen, or before, if the income would admit thereof, the lrustees should elect such another lad, .and so on, in like manner, forever.' The will had. been'made in 1772, and the validity of the bequest had never been .questioned. , The income of the charity amounted to about $1 ;250. The:case Clune before the court on a petition protesting against the manner in which the trustees had exercised' their discretion in;making a certain election, in 1848, and praying that the same might be set aside, and a new.election had. The opinion does ,not allude to the character of the bequest, it being apparently conceded, from the absence of any objection, that it was a valid public charity; and the case is referred to merely for the illustration it 'affords of the definition of a <lharitable trust, and for the striking resemblance it bears in this respect to the will of James Riddle. The bequest under consideration is not to the Drew Theological Seminary, nor was it intended directly for the henrfit of that institution. 'rhe seminary is to be made use of as one of the instrumentalities for carrying out the far-reaching aim of the U-.stator, namely, the promotion of religion by spreading abroad a knowledge of the truths of Christianity. This bequest may be looked at as baving been designed either for the promotion of religion, or for an educational purpose. 'rhe training of young men for the Christian ministry includes that edudation and advancement in learning which form the preliminary preparation and discipline for, the sacred office of preaching the GosVel. The ultimate purpose of the testator was to incrtlase the number of those who should thereafter devote their lives tOpiOllS works, both at home Bnd abroad. The influence for good to mankind of an educated and faithful ChristiBnministercannot be estimated.ltis beyond human caloulation. ·And a bequest which is designed to send forth periodically, two well-equipped young men, one <?fwhom shall'enter the field of religious instruction at home, and the other shall carry the light of the Gospel to them that si.t in darkness, is a publio charity, eonceived in a spirit of the broadest philanthropy, and deserving of unqualified commendation. The object of. the bequest isspecifio. and definite,-that is, for the promotion of: religion; the, directions of the testator for giving it effect are clelU'lystated; and there is left for doubt, unless it .may be in the "sumo£,money sufficient to carry out the intention,» constantly, providing for .the edlication of two young men for the work of the, ministry in all' coming '. But does the omission of thetestatot .tollpecity the amount which shall be set apart asa fund for this :purposerenderthe. ,bequest void for uncertainty, and thus defeat the expressed intention ot'the will? No reaSon has
FIELD t·· DREW THEOW(;ICAl. SEMINARY.
suggested, nor. is ab:y 'authority cited, to sils,tain the affirm-ative of this proposition. Circumstances might be imagined which ':would cause a bequest;·to 'faU on account of its impracticability, where, for instance, no beneficiaries could be found answering to in the will, or where thfl residue of the testator's estate was totally inadequate to supply the requisite funds. But nothing of the kind exists here. .The trustees, having once accepted the trust, cannot be released, except with the permission ofa court of equity. Young men have been appointed, and the qf them ip the seminary for the allotted time is approximately known; and it is a matter of easy calculation to arrive at the fimount of afund,which .would yield a yearly income sufficientto insure tbeconthiuance of the charity. If there should be any surplus income, in any Ql;le year, after defraying the ettPeUl?eB of 'keeping two stuaents at the seminary, the 'disposition of such surplUS can fodn i<;}vance,or by applicatitmtoa court of whenever the contingency occurs. The guiding rule in the construction of wills is that the intention of the testator, when clearly known, and it . is law an<i public policy, should ,be upheld; and a' charitable ·bequest,' above all others, is to be so construed that it shall, if possible, be executed in the manner described by the Ano1:>jectipu was intimate<J, rather than insisted on, that the bequest may be invalid on the ground that, after a beneficiary shall become a nieni.bel', Of tbe Wilmington donference;' be may, ·in accordance with the Discipline, be transferred by a bishop to another conference. The objection is untenable. When a beneficiary has been prepared to become ·a meln Wihniugton Conference, or go abroad as a mission_ary. ;and ofrers hi ll1self in good faith for either purpose, the will of the ,testator has been fully plan of the testator does not con· ·cern itself with .the future of the beneficiary, further tban it relies upon hisgoo<l faith continue to.1;>e and do whath 13 was educated for, so far · as. it lies in his power. The condition that the beneficiaries shall bemembers o(the Wilmington qonference foreign .missiqnaries, is a condition. subsequent, and .cannot affect the original validity of the gift. Jones v. Habersham, 8'!lFa. . A membership in any, body implies, not only the enjoymen\ of its privileges, .but subjection to. the rules governing it. The convel'sant with the Discipline of the Methodist Church, and never contemplate<i that any beneficiary who should become a member of the .Wilmi,ngton QQnference .might l\ot, under the discipline, be transfel'red .ind,ueseason, or for sufficient cause, to another conference. The;trust is not by the flW! that the corporation created by .the legislature of Delaware, according to the directions of the will, was not at of the testator'!!.dellf4. Jones v. Haber8oom, ,supra.
,The.opinion, of the court th.at the bequest contained in the first item of the will of James Riddle constitutes a valid charitable use, and a decree will. bamade accordingly. The amount of money· naces-
876
J'El)ERAL REPORTER,
vol. 41.
eary to be appropriated to establish a fund for carrying the bequest into effectwillbedetermined by a reference to a master,on failure of an agreement by counsel; ,and the court will give suoh further direotions as may be required for the proper execution of the trust.
PICKERING 'V. LEIi;JERMAN. 1
(District Oourt, 1>. Del.atware. luuary 8, 1800.)
1.
PRINOIPAI. AND SURETY-CONTRIllU'tION-LAOHES.
The. eqUitable right of between sureties. having long been recog,as the fOUndation of an imp)led, contract, and. the legal action on such contract being barred after three years, contribution soug-btby an administrator of a paying surety.from ·aco-surety will be fetuaed In a court ot equity after an unaccounted for delay of nearly 18 years. '
S. BAME-SUBRoGATIQN. , .A. delay of nearly 18 years to demand subrogation to the judginent against two sureties by a surety who has dlsoharged t.he same is laches, and a court of equity
will not act.
8. SAME-INSA"."iITT 01'. Co-SURETY.
The insanity ofa surety whose portion of a prinolpal's debt has been paid by a co-surety does not dlijayonthe of the latter to demand oontribution, where a t1-'11stee of the lunatic's estate had been appointed, and there was sufficient real estate to 1'ay his debts. ' ',
In Equity. On May 1, 1868, Frederick Myers, as principal, with Henry Moore, Christian Metzyer, and Henry' Leiberman, as sureties, executed adiatiller's bond to the United 'States in: the penal sum of $3,000. On September!, 1869; an action of: debt was brought on the bond in this court. Moore and Leiberman were the 'only parties served with summons, the other perSonsoamed not found in the jurisdiction. On October 1, 1871, judgment was entered against Moore and Leiberman, and, to the execution issued thereon, them8.l'shal returned, on January 9, 1872. levied ou goods and chattels of Moore as per inventory, etc. j nulla bona as to Leibermtinj and afterwards,debt, interest, and costs fully paid by Moore. Janu'ary 12, 1872, a. jury, which had been summoned by the sheriff of Kent county, under 8. writ' of, de lunatico inquirendo, found that Leiberman was then, and had been for the two years preceding, and February 17, 1872, CalebS: Pentl'ewill was appointed his trustee. Henry Moore died October 31, 1885, and letters of administration c. t. a. 'were issued to Thomas Pickertng November 6, 1885. A rule to show .cause why the above judgment should not be marked to the use of Moore's administrator was' served on Leiberman's' trustee, October 2, 1889, and the court was informed that the district attorney is authorized to maka the assignment on the record, if it shOuld be so ordered by the court. lReported by Marks Wilkes Collett, ]jlsq., of the Philadelphia bar.
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