Wemme v. Noyes , 134 Or. 590 ( 1930 )

In Banc. The prayer of the complaint in this suit is in the following language:

"1. That the defendants may be immediately removed as trustees of this fund and render an accounting.

"2. That the Attorney General be required to institute immediate proceedings for the recovery of the White Shield Home and that the control thereof in case of its recovery be placed in the hands of some responsible religious or philanthropic institution or church organization engaged in social work and free from financial or political influence.

"3. That the Attorney General be required to act and take charge of all legal activities connected with the E. Henry Wemme Endowment Fund.

"4. That in the alternative, if the Honorable Supreme Court does not grant the foregoing relief and order a recovery of the White Shield Home, the plaintiffs herein pray that a resulting trust be declared for all the reasons legal and otherwise appearing in this record.

"5. That all sales of property made without the advice or consent of the Attorney General may be set aside and particularly the property sold to Hirsch-Weis Manufacturing Company.

"And for such other and further relief as to the Court may seem equitable and just."

To the complaint a demurrer was filed by the defendants on two grounds: First, the plaintiffs have not the legal capacity to sue; second, several causes of suit have been improperly united. The demurrer was sustained by the circuit court. Plaintiffs refused to further plead and judgment and decree was entered against them dismissing the complaint with prejudice and for costs and disbursements. Plaintiffs appeal from said decree and judgment. From the conclusion we have reached it is unnecessary to consider other than the first ground of demurrer. This case is another attempt on the part of plaintiffs to control or destroy the bequest and devise of the late Henry Wemme in favor of the home for wayward girls he desired to establish in the city of Portland. Whatever may be the purpose of the instant suit it operates to delay administration of the charity already unreasonably delayed by numerous litigations. It has been before this court three times before: Wemme v. First Church of Christ,110 Or. 179 (219 P. 618, 223 P. 250); 111 Or. 386 (227 P. 277);115 Or. 281 (237 P. 674); E. Henry Wemme Co. v. Selling,123 Or. 406 (262 P. 833).

The decision of the court in the case construing the will of the late E. Henry Wemme was unanimous. Mr. Justice RAND wrote the opinion for the court (110 Or. 179, 192-3) and used this direct and positive language:

"The property that the testator intended to donate to the charity is specifically described in the will. There are no words contained in the will by which the property can ever revert to the heirs or to the residuary legatee. The gift was immediate and absolute and vested the title to the property in the trustees as soon as the will took effect. From that moment the property became impressed with the trust and passed beyond the reach of the heirs or residuary legatee. Hence the charitable use of the devised property cannot fail, for, as said by Mr. Justice Story in his note, supra: ``If the charity does not fail, but the trustees or corporation fail, the court of chancery will substitute itself in their stead, and carry on the charity.' The terms of the will were sufficiently definite and certain to constitute a good and valid devise of the trust property to the E. Henry Wemme Endowment Fund. The title to the devised property is vested in that corporation and can never become vested in the heirs or in the residuary legatee."

By the construction placed upon the will this court held in effect that the title to the property involved in controversy passed from the estate of the said E. Henry Wemme, deceased, as absolutely, completely and effectively as though he had conveyed it by warranty deed without condition, qualification or reservation of any kind prior to his death. Plaintiffs in the instant action have no more claim, right or title, at present or in the future, expectant or vested, contingent or unconditional, than if the property had never been a part of the estate of the benevolent testator.

Again, in Wemme v. First Church of Christ, Scientist, 115 Or. 281,290, this court made this statement:

"Either the Attorney General or the prosecuting attorney was the proper person to initiate the necessary proceedings to have that question determined: 11 C.J., p. 366, §§ 83, 84, p. 368, §§ 89, 90; MacKenzie v. Trustees of Presbytery of Jersey City,67 N.J. Eq. 652 (61 A. 1027, 3 L.R.A. (N.S.) 227; Burbank v.Burbank, 152 Mass. 254 (25 N.E. 427, 9 L.R.A. 748); 2 Perry on Trusts (6 Ed.), §§ 732, 744. Granting that the new trustees have the authority to institute a suit to recover the title to the White Shield Home, they cannot proceed without making the Salvation Army a party, as well as the Attorney General or the prosecuting attorney for Multnomah county."

Both the foregoing opinions were referred to with approval inE. Henry Wemme Co. v. Selling, 123 Or. 406 (262 P. 833). In the last case cited the question is again reviewed thoroughly and the same conclusion reached as in the first Wemme case, 110 Or. 179, above.

Plaintiffs have no more interest in the property involved in this litigation than if they were absolute strangers to the blood of the benevolent testator. The generous fund provided for said home belongs to a public charity and one not interested directly in the administration of that fund or the duly appointed officer of the state cannot maintain a legal proceeding for an accounting or the control of the administration of said fund: 11 C.J., 367; Clark v. Oliver, 91 Va. 421 (22 S.E. 175); Dickey v. Volker, 321 Mo. 235 (11 S.W.2d 278, 62 A.L.R. 858); Cuthbert v. McNeill (N.J. Eq.),146 A. 881; Petition of Burnham, 74 N.H. 492 (69 A. 720); Krauthoffv. Atty. Gen., 240 Mass. 88 (132 N.E. 865); MacKenzie v.Trustees, etc., 67 N.J. Eq. 652 (61 A. 1027, 3 L.R.A. (N.S.) 227); Heiskell v. Chickasaw Lodge, 87 Tenn. 668 (11 S.W. 825, 4 L.R.A. 699). There is no resulting trust in a public charity fund: Clark v. Oliver, above.

Plaintiffs cite a good many authorities which they claim sustain their right of visitation to said home as heirs of said testator. The plaintiff E. Henry Wemme Company claimed the same right as the residuary devisee and legatee under said will in the suit determined in 123 Or. 406, above. That right was denied to said E. Henry Wemme Company. The matter sought to be detemined in the instant case has been adjudicated and conclusively determined. The cases relied upon by plaintiffs on close examination are not decisive of the question herein involved. In all those cases it will be found that plaintiffs, who were asserting the right of visitation, had some interest in the fund supporting the institution which they claimed the right to visit. That right may have been a mere contingency or possibility, but they had that interest which the court recognized under the particular circumstances and facts involved.

In the several cases involving the same question our conclusion was that plaintiffs had no standing in this court to interfere in any way with the conduct and management of the fund. In other words, plaintiffs have not the capacity to maintain the instant suit. We adhere to our former decisions involving the subject-matter. The demurrer to the complaint was properly sustained. Decree and judgment affirmed with costs and disbursements in favor of respondents.

BELT and KELLY, JJ., took no part in this decision.

BEAN, J., concurs in the result.