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Neal, 147 Ky. 739, 145 S. W. 401; General Assembly v. Alexander, 20 Ky. L. Rep. 391, 46 S. W. 503.

Mr. R. O. Willingham, for appellee: The object for which the trust was created by plaintiff has failed, so that the trust property automatically reverts to the donor.

Grundy v. Neal, 147 Ky. 729, 145 S. W. 401; Morrow v. Slaughter, 5 Bush, 330; Taylor v. Rogers, 130 Ky. 112, 112 S. W. 1105; Com. v. Louisville Pub. Library, 151 Ky. 420, 152 S. W. 262.

Sampson, Ch. J., delivered the opinion of the court:

Conceiving that the city of Bardwell and the county of Carlisle needed a new public cemetery, appellee, Norris, in 1912 conveyed a tract of about 30 acres of land to certain named trustees and their successors, to be laid off, held, and used as a public burying ground for the use of the public. At a later date he conveyed an additional tract to the same trustees, and at another time he placed $5,000 on deposit in a bank, the income and profits to be employed for the use and benefit of the public by the trustees in improving the property as a cemetery, and at yet another date placed another $5,000 with the same trustee for similar purposes.

Appellee, Norris, erected at his own expense a chapel on the cemetery grounds, and turned it all over to the trustees, who accepted the trust and entered upon their duties. The trustees exercised and performed their duties and functions by taking care of the grounds, and in doing so expended about $300 of the accumulations from the $10,000 trust funds. The cemetery was open for use by the public, according to the rules and regulations adopted by the trustees and in accordance with the terms of the trust.

Strange as it may seem, the public did not accept the cemetery for burial purposes. Not a single body was interred in the proposed cemetery from the time of the creation of the trust in 1912 until the bringing of this action, more than ten years later, to void the trust and reinvest the appellee, Norris, with the title

to the real estate and trust funds which he had voluntarily given and donated as a public charity. Concluding that the public would not accept the trust nor employ it for the purpose for which it was created, the donor, appellee Norris, demanded of the trustees a reconveyance of the real estate and a return of the $10,000, with its accumulations. This being refused on the ground that the trustees were doubtful as to their right and power to make such reconveyance, this suit was instituted to cancel the voluntary conveyances mentioned above and to recover the money held by the bank as a trust for the improvement of the cemetery, on the grounds that the trust had failed.

The lower court adjudged appellee, Norris, entitled to the relief prayed, and the trustees appeal.

The question is: May the creator of a voluntary trust have it set aside and annulled upon showing that the purpose of the trust has failed because the beneficiary or beneficiaries would not accept it or its benefits? The general rule with respect to the reversion of property to the donor upon the failure of a charity is well stated in 11 C. J. 371, where it is said: "When lands have been donated to charity and the title is vested absolutely in trustees for charitable uses, they are not only inalienable for other purposes, but they also do not revert to the donor or to his heirs. In Virginia there are no resulting trusts with respect to charities. In general, when no power of revocation is reserved, or provision for reverter made, the trustees' abandonment or abuse of the trust does not cause the trust to fail, or the property to revert. If the estate is misapplied, the fitting remedy is not its forfeiture to the grantor or his heirs, but a proceeding on the equity side of the court to enforce the trust. However, the broad statement that a conveyance of land to trustees for a charitable use is not liable to be defeated by nonuser is to be taken with a qualification depending on the nature of

(200 Ky. 338, 254 8. W. 1044.)

the conveyance, its limitation of the estate or interest conveyed, and its limitation of the use intended to be protected by it. Where there is no reservation of a power of revocation or provision for reverter, the trust may be extinguished so as to revert to the donor or his heirs when, and only when, there has been an entire failure of object or purpose, there being no reverter when the gift can be applied to a similar charity, under the doctrine of cy pres. The abandonment of a charitable use involves the elements of intent to abandon permanently, and the physical fact of nonuser, and the evidence to establish abandonment of a charitable use created by deed must be clear and conclusive."

See also 5 R. C. L. pp. 334 and 368.

This court in the case of Grundy v. Neal, 147 Ky. 729, 145 S. W. 401, laid down the doctrine that while a deed contains no provisions to the effect that, in the event the property shall cease to be used for the purpose for which it was granted, it shall revert to the grantor, such provision was not necessary, for the conveyance, being a voluntary one, for charitable purposes, would automatically revert to the grantor when the purpose for which the conveyance was made had failed. McDaniel v. Watson, 4 Bush, 234.

In the McDaniel Case the congregation to which McDaniel had obligated himself to convey a tract of land for church purposes only acquired another location for their house of worship and moved to it, thus abandoning the old grounds. The church then sought to require McDaniel to perfect the title by deed. In discussing the question this court said: "The alleged undertaking of McDaniel to convey the ground was not upon a valuable consideration, but a voluntary dedication thereof to the use of the congregation; consequently, if the congregation should cease to occupy it, and the uses to which it was dedicated wholly fail, the estate, if he had conveyed it, would revert to him or his

heirs; and, a fortiori, if the use had failed before the conveyance was made, he would be under no obligations to convey the ground."

A somewhat similar question was presented in the case of Morrow v. Slaughter, 5 Bush, 330, and we said: "Had the appellee been the donor of a charity, a failure in the object of dedication would, by an implied trust, have resulted in a reversion to herself."

In Taylor v. Rogers, reported in 130 Ky. 112, 112 S. W. 1105, the question was whether or not the donor of land for the establishment of a particular kind of school could, upon the failure of the school, reinvest himself with the title. In holding that, upon the failure of the purpose of the trust, the donor was entitled to the value of the lands donated from the sale of the lands with improvements as ordered, we said: "As the trust has failed, we conclude that the present trustees hold the property in question in trust for the use and benefit of appellants and all other donors."

In the instant case the public, for whose benefit the donation was made and trust created, has failed and refused to accept the trust, and therefore allowed its purpose to fail. The cemetery had been open to the public for more than ten years before the commencement of this action, and not a single body had been interred therein. The funds donated by appellee for the improvement and beautifying of the grounds has served no purpose save to increase the deposits of the bank in which they were placed. These funds had accumulated as they were placed on interest. The lands were located in a thickly populated community near or in the county seat. To allow the lands to remain idle in such a situation, and the funds to be unemployed for so long

Charities

policy.

a time, is against against cemetery-idle public policy. As lands-public the beneficiaries of the trust, by failure to employ the cemetery for the purposes intended, for more than ten years, have mani

fested a fixed intention not to accept the benefits thereof, the donor, being the only person entitled to the prop

-failure to accept trust -termination.

erty, may have the trust adiudged invalid and the property restored to him. The donor, the only interested party, the trustees being mere title holders for the donor and the beneficiaries, has the paramount title, and is entitled to

have the real property reconveyed to him and the trust funds surrendered in accordance with the prayer of the petition.

The petition stated a good cause of action, which was not subject to general demurrer. The answer did not present a sufficient defense. The lower court properly granted the relief prayed. Judgment affirmed.

ANNOTATION.

Avoidance or reverter of valid charitable trust, purpose of which has failed, in absence of express provision therefor.

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In discussing the avoidance reverter of a valid charitable trust whose purpose has failed, in the absence of an express provision therefor, this annotation includes in general only those cases where a trust has been created for a particular purpose, object, or institution, and in which the trust is valid and has vested, but where the purpose for which it was created failed after its creation, either during the life of the donor or after the death of the testator. The discussion is not concerned with those cases where the object of the charity ceased to exist during the testator's lifetime, or where it otherwise became impossible of execution during that period. And cases where a trust has not vested, as, by reason of the incapacity of the trustee to accept the devise, are not considered. Also the application of the cy pres doctrine is not considered, except so far as incidentally involved. As to the right of the creator of a voluntary trust to revoke or procure the cancelation thereof, see annotation

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As a general proposition it may be stated that where a person creates a trust fund for the benefit of a particular charity or organization, and it is impossible to distinguish any general charitable intent, the fund or property will revert to the donor where it becomes impossible to carry out the purpose of the trust, even in the absence of an express provision for reverter. Illinois.

Mott v. Danville Seminary (1889) 129 Ill. 403, 21 N. E. 927, later appeal in (1891) 136 Ill. 289, 28 N. E. 54; Presbyterian Church v. Venable (1896) 159 Ill. 215, 50 Am. St. Rep. 159, 42 N. E. 836; People ex rel. Smith v. Braucher (1913) 258 Ill. 604, 47 L.R.A. (N.S.) 1015, 101 N. E. 944.

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Massachusetts. Easterbrooks v. Tillinghast (1855) 5 Gray, 17; Teele v. Bishop of Derry (1897) 168 Mass. 341, 38 L.R.A. 629, 60 Am. St. Rep. 401, 47 N. E. 422; Gill v. Atty. Gen. (1908) 197 Mass. 232, 83 N. E. 676; Bowden v. Brown (1908) 200 Mass. 269, 128 Am. St. Rep. 419, 86 N. E. 351. See Stratton v. Physio-Medical College (1889) 149 Mass. 505, 5

L.R.A. 33, 14 Am. St. Rep. 442, 21 N. E. 874.

Missouri. Campbell v. Kansas City (1890) 102 Mo. 326, 10 L.R.A. 593, 13 S. W. 897; St Louis v. McAllister (1924) 302 Mo. 152, 257 S. W. 425. New Jersey. McCran v. Kay (1921) 93 N. J. Eq. 352, 115 Atl. 649. See Newark v. Watson (1894) 56 N. J. L. 667, 24 L.R.A. 843, 29 Atl. 487. New York. Camp v. Presbyterian Soc. (1918) 105 Misc. 139, 173 N. Y. Supp. 581.

North Carolina. McAuley v. Wilson (1828) 16 N. C. 276, 18 Am. Dec. 587.

Ohio. See Board of Education v. Edson (1868) 18 Ohio St. 226, 98 Am. Dec. 114.

Pennsylvania. - Gumbert's Appeal (1885) 110 Pa. 496, 1 Atl. 437. South Carolina. Elliott v. Morris (1824) 5 S. C. Eq. (Harp.) 281. Texas. Acklin v. Paschal (1877) 48 Tex. 147.

West Virginia. - Venable v. Coffman (1867) 2 W. Va. 310.

If, however, a general charitable. intent is indicated by the terms of the instrument creating the trust, then the courts will generally deny any right of reverter, and give effect to the donor's or testator's intention. Stuart v. Easton (1896) 21 C. C. A. 146, 39 U. S. App. 238, 74 Fed. 854, affirmed in (1897) 170 U. S. 383, 42 L. ed. 1078, 18 Sup. Ct. Rep. 650; Academy of Visitation v. Clemens (1874) 50 Mo. 167; Goode v. McPherson (1872) 51 Mo. 126; Mott v. Morris (1912) 249 Mo. 137, 155 S. W. 434; Glaze v. Allen (1919) Mo. 213 S. W. 784. See Mills v. Davidson (1896) 54 N. J. Eq. 659, 35 L.R.A. 113, 55 Am. St. Rep. 594, 35 Atl. 1072; Stewart v. Franchetti (1915) 167 App. Div. 541, 153 N. Y. Supp. 453; Re Donchian (1923) 120 Misc. 535, 199 N. Y. Supp. 107, affirmed in (1924) 209 App. Div. 806, 204 N. Y. Supp. 903.

So, it was said in a case in Massachusetts: "If it appears from the will that the intention of the testatrix was that her property should be applied to a charitable purpose, whose general nature is described so that a general charitable intent can be inferred, then

if, by a change of circumstances or in the law, it becomes impracticable to administer the trust in the precise manner provided by the testatrix, the doctrine of cy pres will be applied in order that the general charitable intent which the court regards as the dominant one may not be altogether defeated. But if the charitable

purpose is limited to a particular object or to a particular institution, and there is no general charitable intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in some cases after it has taken effect, the doctrine of cy pres does not apply, and, in the absence of any limitation over or other provision, the legacy lapses." Teele v. Bishop of Derry (1897) 168 Mass. 341, 38 L.R.A. 629, 60 Am. St. Rep. 401, 47 N. E. 422. See also Gill v. Atty. Gen. (1908) 197 Mass. 232, 83 N. E. 676.

See also Gladding v. St. Matthews Church (1904) 25 R. I. 628, 65 L.R.A. 225, 105 Am. St. Rep. 904, 57 Atl. 860, 1 Ann. Cas. 537, wherein the court quoted the foregoing extract from the opinion of the Massachusetts court and remarked that the law was well stated therein.

So, in a case in New York it was said: "When the purpose of the charity fails and there are no objects to which to apply the funds, the court must determine whether the charitable intention of the testator has come to an end and the fund must revert to the heirs or personal representatives, or whether there was a probable intention on the part of the donor that the gift should be applied cy pres the original purpose. If, therefore, it appears that the testator had a particular object in view and none other, and that purpose cannot be accomplished, the charity must fail and the next of kin will take." Camp v. Presbyterian Soc. (1918) 105 Misc. 139, 173 N. Y. Supp. 581.

But it has also been said that in no event, except on the entire failure of the trust, can the heirs at law be entitled to claim the estate devised by the testator for charitable purpose.

Johnson v. Mayne (1856) 4 Iowa, 180; American Colonization Soc. v. Soulsby (1917) 129 Md. 605, L.R.A.1917C, 937, 99 Atl. 944.

In England the rule has been stated as follows: "If the mode of application is such an essential part of the gift that you cannot distinguish any general purpose of charity, but are obliged to say that that mode of doing a charitable act was the only one the testator intended, or at all contemplated, and that he had no general intention of giving his money to charity, then the court cannot, if the particular mode of doing it fails, apply the money cy pres. On the other hand, if you do see a general intention of benefiting a certain class or number of people, who come within the ordinary definition of objects of charity, and you find that the particular mode the testator has contemplated of doing this cannot be carried out, and you are convinced that the mode is not so essential that you cannot separate the intention of charity from that particular mode, then the court says there is a general intention of charity, and as the mode has failed, the duty of the court is, favoring charity as the court always does, to provide another mode than that which the testator has pointed out, and which has failed." Biscoe v. Jackson (1872) L. R. 35 Ch. Div. (Eng.) 460-C. A.

In England, however, though the courts recognize the general principles as here stated, yet they apparently go further than the courts of the United States in their endeavor to apply the trust to a kindred purpose. This they do by administering the fund under the cy pres doctrine, which is recognized to a greater extent in England than in the United States, or by decreeing that the fund goes to the Crown, who will apply it to some analogous purpose. Biscoe v. Jackson (Eng.) supra; Re Prison Charities (1873) L. R. 16 Eq. (Eng.) 129; Re Slevin [1891] 2 Ch. (Eng.) 236-C. A.; Re Buck [1896] 2 Ch. (Eng.) 727; Re Cunningham [1914] 1 Ch. (Eng.) 427.

And it was said in an English case: "Properly speaking, a lapse can only

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