State Ex Rel. Emmert v. Union Trust Co.

The complaint in this action is in two paragraphs. The allegations of each paragraph which are pertinent to this opinion are substantially as follows: that on September 4, 1923, the last will and testament of Laura Fletcher Hodges, deceased, was admitted to probate by the Marion Probate Court and letters testamentary issued to the appellees, The Union Trust Company of Indianapolis and Fletcher Hodges, who were named co-executors of the will; that the co-executors, after qualifying, proceeded to administer upon the estate of the decedent and to carry out and execute the provisions of the will; that by the will the appellees, Fletcher Hodges and the Trust Company, were named co-trustees of the decedent's residuary estate and are now serving as such trustees; that by Items 3 and 4 of the will, the decedent made the following provisions relating to the diaries of her grandfather, Calvin Fletcher, to-wit:

"Item Three: In the event that I shall not in my life time have made publication of the diary of my grandfather, Calvin Fletcher, I direct that the Executor of this my last will and testament procure to be edited by a qualified person and to be printed and published at a reasonable cost the diaries of my grandfather, Calvin Fletcher — the same to be dedicated to my father, Stoughton A. Fletcher, Jr., — and to make proper distribution of the same.

"Item Four: In the event that Edith Fletcher Churchman shall be in my employ at the time of my death, I direct that the Executor of this my last will and testament shall for the six months next ensuing after such Executor's qualifying as such Executor, employ at the same salary she shall be receiving from me at the time, said Edith Fletcher Churchman to collaborate with the editor of said diaries of my grandfather, Calvin Fletcher, or do any other kind of work that is acceptable to said Edith Fletcher Churchman."

That Calvin Fletcher was a lawyer and banker with marked literary ability; that he settled in the City of Indianapolis in the year 1821; that he kept a diary in which he made daily entries and voluminous notes as to the happenings and doings in the city from 1821 to 1866 and with few exceptions, these entries were made at daily intervals; that contained in these diaries is material of great historical value to the state and nation; that these diaries were the property of the testatrix at the time of her death.

It is further alleged that the said Edith Fletcher Churchman died prior to the settlement of the estate; that all the residue of the property of the estate was turned over to the appellees, Fletcher Hodges, and The Union Trust Company of Indianapolis as co-trustees under the will, and they are now collecting the rents and profits therefrom; and, finally, that the diaries have never been edited, printed, published or distributed.

Each paragraph asks, among other things, that the court find and decree that the provisions of the will relating to the editing, printing, publication and proper distribution of the diaries constitutes a public charitable trust; that the court find and determine the reasonable cost of editing, printing, publishing and making proper distribution of these diaries; that the trustees be removed as trustees of this public charitable trust; that a suitable person be appointed trustee for the purpose of carrying out the same; that the defendants, The Union Trust Company of Indianapolis and Fletcher Hodges, out of the trust funds as testamentary trustees, be ordered to pay over to the successor trustee such sum of money as the court shall find to be the reasonable cost and expense of carrying out the trust, and that the successor trustee be ordered to proceed as expeditiously as possible to edit, print, publish, distribute and dedicate the diaries, and generally to execute and carry out the provisions of the trust.

To this complaint the appellees filed their separate demurrers to each paragraph which were sustained by the trial court; upon appellant's election to stand upon this ruling and its refusal to amend, judgment was rendered that appellant take nothing by its complaint. From this judgment this appeal has been taken.

These demurrers challenged each paragraph of complaint on the ground, among others, that the appellant had no interest as no charitable trust was created by this will. In view of our conclusion upon this subject it will only be necessary to decide this particular question.

Although the books abound with definitions of a charitable trust, one of the best that we have found is that "A charitable trust is a gift for the benefit of persons, either by 1. bringing their hearts and minds under the influence of education or religion, by relieving their bodies of disease, suffering, or constraint, by assisting to establish them for life, by erecting or maintaining public buildings, or in other ways lessening the burdens or making better the condition of the general public, or some class of the general public, indefinite as to names and numbers. In short, it is a gift to a general public use." In re Lennon (1907), 152 Cal. 327,92 P. 870.

From an examination of the decisions it can be said that our courts strongly favor public trusts for charitable uses and liberally construe deeds and wills in which the maker 2. evinces a charitable purpose and never declare them invalid if they can, by any possibility consistent with the law, be held valid. See Dykeman v. Jenkines (1913), 179 Ind. 549, 101 N.E. 1013; Crawfordsville Tr. Co. v. Elston Bank and Tr. Co. (1940), 216 Ind. 596, 25 N.E.2d 626.

It is the law in Indiana and in several other jurisdictions that a bequest to charity generally, coupled with the appointment of a trustee empowered to select in his discretion the 3. charitable objects or purposes to which the trust funds are to be devoted, is a valid testamentary disposition. Hulet v. Crawfordsville Trust Co. (1946), 117 Ind. App. 125, 69 N.E.2d 823. For a general discussion of this proposition see 168 A.L.R. 1350, Note.

In the case of a testamentary charitable trust, the will itself must point out and make apparent, with reasonable definiteness and certainty that the bequest is for a purpose recognized 4. in law as charitable. 14 C.J.S., Charities, § 20, p. 453. It has been well said: "A charitable trust, like an express private trust, is created only if the settlor properly manifests an intention to create it. The settlor need not, however, use any particular language in showing his intention to create a charitable trust; he need not use the word ``trust' or ``trustee.' It is sufficient if he shows an intention that the property should be held subject to a legal obligation to devote it to purposes which are charitable." 3 Scott on Trusts, § 351, p. 1932.

With the foregoing principles in mind we approach Item 3 of this will. In this will no charitable intent, which is necessary to establish a public trust, is apparent. The will does not 5. evince with reasonable definiteness and certainty a charitable purpose. There is no statement or description therein from which a charitable purpose or the object thereof can be ascertained or identified by evidence. The bequest or direction of this item does not expressly or impliedly disclose any beneficiary or that it is intended to be either public or charitable; it is wholly uncertain. For all we know this bequest or direction may have been for private gain. Item 6 of this will, which created a residuary trust estate, does not mention these diaries, nor is there any other provision of this will which indicates a charitable purpose or the objects of such a charity.

It is true that by their demurrers the appellees admit that the diaries were of educational value. Had the will expressed an intent that the diaries should be held 6-8. subject to a legal obligation to devote them to educational purposes, there is no doubt that the same would have constituted a charitable trust. The admission by the demurrer that the diaries were of an educational value, however, does not add to, eliminate or vary the terms of the will as written. A court has no authority to make a will nor power to admit extrinsic evidence to add to, eliminate or vary the terms of the will as written. Its province is limited to a construction of the language adopted by the maker as expressive of his intention. McConnell v. Robbins (1923), 193 Ind. 359, 140 N.E. 59. The purpose of Item 3 is left entirely blank. Extrinsic evidence could not be used to add to the will provisions sufficient to make apparent that the intent of the testator was to create a charitable trust or that the bequest was for a charity such as contemplated in charitable trusts. This is not a case of latent ambiguity as there is no language in the will relating to a charitable trust to be interpreted. Effect cannot be given to an intention proven by extrinsic evidence without regard to the will as the intention must be gathered from the language found in the instrument itself. Daughtery,Administrator v. Rogers (1889), 119 Ind. 254, 20 N.E. 779;Martin v. Raff (1944), 114 Ind. App. 507, 52 N.E.2d 839.

For the reasons herein expressed the judgment of the lower court is affirmed.

Gilkison, J. dissents.

Emmert, J. not participating.

NOTE. — Reported in 86 N.E.2d 450.