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occur by failure of the object in the lifetime of the testator; but it is possible that a will might be so framed as that a subsequent failure of the object of the charitable gift might occasion a resulting trust for the benefit of the testator's estate. We have not been referred to any such case, nor have we found any." Re Slevin [1891] 2 Ch. (Eng.) 236C. A.

is clear. Aside from bequeathing to the municipal authorities of the city of New Orleans all the rest and residue of his estate, both real and personal, wherever situated, to be appropriated to the establishment of a city dispensary for the gratuitous dispensing of medicines and medical advice to the poor of said city, the will provides that, in the event that any of the specific charitable bequests therein made should fail, the executors should pay over the amount of the bequest or bequests so failing to such charitable and educational uses as they should think most in consonance with the testator's wishes and intention expressed in the will; thus apparently following the doctrine of cy pres. Under such testamentary disposition, the heirs at law can take nothing on the failure of any charitable bequest."

It has been held that where property was given to a church, the law of the church might prevent a reverter to the donor. Heisler v. Methodist Protestant Church (1914) 166 Iowa, 333, 147 N. W. 750, wherein the court said as to the rights of the donor in such a case: "Nor can we see that the disbanding of the local church worked any change in plaintiff's relation with respect to the property. When he became a member of the church, and contributed of his means in promotion of the effort to provide a parsonage, without attaching any condition to such gift, he must be held to have made it in contemplation of the law of the church, by which, upon abandonment or dissolution of the local organization, its property, including the parsonage, would pass to the Conference or its Board of Church Extension. In other words, the charitable or religious purpose for the promotion of which he gave his money did not terminate or fail with the failure of the local society to maintain its organization. It survives in the general church, of which that society was but one component part, and in the charitable and religious work in the performance of which that denomination and its organized agencies continue to be engaged. It follows here, also, that no trust resulted in plaintiff's favor."

III. Illustrations.

V.

a. Rights of donor or creator. In Mott Danville Seminary (1889) 129 Ill. 403, 21 N. E. 927, later appeal in (1891) 136 Ill. 289, 28 N. E. 54, it appeared that property had been conveyed to the Board of Trustees of the Danville Seminary, a corporation organized under an act of the legislature of Illinois entitled, "An Act for the Incorporation of Institutions of Learning." The conveyance was without consideration, and was a mere gift or donation to the seminary "for the building and maintaining on said grounds an institution of learning, as provided by said law authorizing said incorporation." Subsequently the corporation was dissolved by order of court, but, before the order of dissolution was made, the corporation attempted, by a conveyance without any actual consideration, to prevent a reverter. It was held that the legal title was in the corporation at the time of the dissolution, and that the property reverted to the grantor. The court said: "The title of a corporation to property owned by it ceases when the corporation itself ceases to exist, and hence it was held at common law that, upon the dissolution or civil death of a corporation, all its real estate remaining unsold reverts back to the

Of course, if the testator makes other provision, in case the purpose of the trust fails, there can be no reverter. Sickles V. New Orleans (1897) 26 C. C. A. 204, 52 U. S. App. 147, 80 Fed. 868, wherein it was said: "Under the will of Simon Van Antwerp Sickles, there is no estate to vest in his heirs at law on the failure of any charitable bequest therein named. The intention of the testator in this respect

original grantor or his heirs. The reasons which gave rise to the doctrine and originally justified its application existed in the case of the Danville Seminary, as organized under the Act of 1849, at the time when its dissolution took place. It is averred in the bill and admitted by the demurrer that, at that time, the seminary had no creditors and no shareholders. It is the equity in favor of creditors and shareholders which prevents the enforcement of the rule, when it is not followed. No such equity exists in this case, as the case is presented on the face of the bill. The Act of 1849 contains no provision for opening books of subscription, or for making or receiving subscriptions to capital stock. By its terms there were to be no stockholders, and it was evidently contemplated that the institutions of learning therein provided for would be organized and supported by the aid of gifts and donations. The Danville Seminary, as organized under the act, was really an eleemosynary institution. In the absence of statutory regulations to the contrary, the doctrine of reverter to the original owner or his heirs in case of corporate dissolution is applicable, at this day, to public and eleemosynary corporations, even in the view of a court of equity." See also People ex rel. Smith v. Braucher (1913) 258 Ill. 604, 47 L.R.A. (N.S.) 1015, 101 N. E. 944.

In the reported case (CARLISLE COUNTY V. NORRIS, ante, 41) it appeared that Norris, the plaintiff in the action, had conveyed property to be held in trust for the use of the public as a burying ground. During a period of more than ten years, from the time of the creation of the trust down to the time of the bringing of the action, there had not been a single interment in the proposed cemetery. Norris then brought an action to avoid the trust and reinvest in himself the title to the real estate and the trust funds donated by him. The lower court granted the relief prayed, and the judgment was affirmed on appeal, the view being expressed that it was against public policy to allow the land

to remain idle and the funds to be unemployed for so long a time.

In American Church Missionary Soc. v. Griswold College (1899) 27 Misc. 42, 58 N. Y. Supp. 3, it appeared that a donor had created in the plaintiff a trust to establish in a college a perpetual theological professorship. The trustee accepted the trust, and the defendant accepted and agreed to the conditions. It further appeared that, for about ten years prior to the action, the college had maintained only a preparatory school for girls, that no theological department had existed during the same period, that it was not contemplated to revive or maintain one in the future, and that the college buildings were used for other purposes. The plaintiff brought the action, alleging in substance that the defendant Griswold College, the sole beneficiary,-at the time the trust was created a seminary of learning in Davenport, Iowa,-had neglected and refused to perform the conditions of the trust, and asked the direction of the court as to the trust fund and the accumulated interest. Defendant Louisa Dean admitted the allegations of the plaintiff as to neglect and refusal on the part of the beneficiary, Griswold College, and asked that the trust be declared at an end, and the trust fund be restored to her as donor. Griswold College denied the neglect and refusal to perform the conditions, and asked that the trust be continued as originally created. The executors of Bishop Perry asked that the income from January, 1876, to the date of his decease in 1898, be paid to them as holding the professorship for that term. The court, in holding that the corpus of the trust and any accumulations should revert to the donor, said: "It is plain that when this trust was created the donor of the trust fund had a definite purpose in mind, to wit, the creation of a theological professorship, to be known as "The Anthon Professorship of Systematic Divinity,' in Griswold College, and to have this continuous and perpetual as a live branch in a theological school. The acceptance of Griswold College placed that institution in the attitude of

agreeing to create and maintain such

a school and such a professorship in good faith, and effectuate the purpose of the donor of the trust. The trustee, plaintiff herein, had the duty and power of naming the incumbent of the chair in this professorship. The trustee has continuously performed on its part and provided a professor, but the defendant Griswold College, for the past ten years and over, has failed and refused to provide the theological school or to maintain any seminary of learning in which there was a theological department.

There does not exist now, nor has there existed for years in this institution, any school of theology or any theological department, nor any branch known as "The Anthon Professorship of Systematic Divinity,' nor is it the expectation or intention of the officers of the institution to ever revive or maintain either in the future. This is the plain conclusion from the evidence. . . . I think this neglect and abandonment on the part of the defendant Griswold College, so long continued, must be interpreted as a refusal to longer comply with the conditions of the trust, and that this must operate as a voluntary surrender of all benefits under it. It does not appear that the named professor, William Stevens Perry, has for the past ten years been such except in name; he has never served as a professor, and, though he has been the uncomplaining recipient continuously of the income of this fund up to January 1, 1896, through the grace of the trustee, no legal or equitable grounds are here presented for any further claim.

.. The trustee should be directed to turn over to Louisa Dean, the donor of the fund, both the corpus of the fund and the accumulations, and judgment is so directed."

In General Theological Seminary v. General Theological Seminary (1898) 26 App. Div. 144, 49 N. Y. Supp. 745, cited in the opinion in the preceding case, it appeared that a voluntary, unincorporated association of alumni had collected a fund and transferred it to a seminary for the establishment of a professorship, on certain terms

38 A.L.R.-4.

and conditions, which were accepted and complied with for several years. Subsequently the association was incorporated, and afterwards instituted proceedings to procure a judgment and a decree (1) declaring the defendant's conduct, with reference to the tenure of this professorship, to be a breach of trust, and (2) directing the defendant to take action on a nomination made by the plaintiff, then pending, and if it failed to do so within the time fixed, that it surrender and deliver to the plaintiff the trust fund. A return to the plaintiff of the fund, with all accumulations, was directed. This judgment was modified in the court of appeals, in Associate Alumni v. General Theological Seminary (1900) 163 N. Y. 417, 57 N. E. 626, wherein the court said: "It may be that a trust might entirely so fail, from the purpose for which it was created becoming impossible of accomplishment, that the fund ought to be returned to the donor. On this question we express no opinion, as no such case is presented here. . . . The judgment appealed from should be modified, so that, instead of directing a return of the fund to the plaintiff, it should decree that the defendant hold said fund in trust to apply the same upon the terms and conditions specified in the resolutions of plaintiff's predecessors set forth in the agreed statement of facts; that the defendant in all respects specifically perform the terms, conditions, and obligations of said trust; that in case the defendant fail to comply with the conditions of the judgment in these respects within a time to be fixed by the appellate division, then it forthwith pay over and surrender the fund, either into said court or to trustees to be appointed by the court for that purpose; and that thereafter the plaintiff may apply to the court for such disposition or application of the fund as may be proper under the circumstances; and that either party may hereafter apply to the appellate division for such other and further order or decree to be made at the foot of this judgment as shall be necessary or proper."

In Boenhardt v. Loch (1907) 56

Misc. 406, 107 N. Y. Supp. 786, affirmed in (1908) 129 App. Div. 355, 113 N. Y. Supp. 747, which is affirmed in (1910) 198 N. Y. 631, 92 N. E. 1078, it appeared that a committee had received contributions to be distributed among sufferers from a steamboat disaster. Plaintiff, in behalf of himself and others similarly situated, seeking to obtain a further distribution of the funds remaining in the committee's hands, alleged that the committee had refused to make any distribution of the moneys so remaining, or "further to perform their duties as such committee, in violation of the trust imposed upon them, and retain the said fund or the unexpended balance thereof in their hands, in violation of such trust, and for their own use, benefit, and behalf;" and prayed that it be decreed that the plaintiff and others injured as aforesaid were entitled to distributive shares of the funds in the hands of the committee; and that said committee be removed for neglect, and be required to account for all moneys by them so received. The court, in dismissing the complaint, said: "The claim of the plaintiff, suing for himself and others similarly situated, therefore, reduces itself to a claim for distribution, regardless of the further exercise of good faith and discretion by the trustees in the matter of the relief of suffering incident to the Slocum disaster, of proceeds or funds donated for relief, and not as a gift. If the funds may still be expended for such relief it is the duty of the trustees, and not the province of this court, to act and to exercise discretion therein and thereto. If the moneys donated should prove more than sufficient for the purpose for which they were donated, it does not follow that the surplus belongs of right to the sufferers in or from said disaster, but it is to be held as a resulting trust in favor of the donors; if they are not ascertainable, such surplus, the legal estate of which is in the trustees, failing of ownership, would revert to the state."

In Pringle v. Dorsey (1872) 3 S. C. 502, which was an action by the plaintiff for specific performance of a con

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tract to purchase a lot, the defendants, in their answer, admitted the tender of title by the plaintiff, but alleged that, on the title deed of the executors of Latta (from whom the plaintiff bought), the defendants found indorsed in the handwriting of the plaintiff himself: "Received from the Reverend J. M. Pringle, in trust for the congregation of Christ Church, Columbia, November 18th, 1858," signed "Thomas B. Clarkson, for Vestry of Christ Church, Columbia," which deed, so indorsed, was delivered by the plaintiff to Clarkson. The court, in holding that the trust had failed, said: 'Where the donor's mind applies to a particular object, and the same is lawful, a general intent cannot be inferred.' . expression of the one object which is the subject of the charity must exclude all others, if that is clearly made manifest by the words which he has chosen to denote it. The subject is so fully treated by Mr. Story in his Equity Jurisprudence, that it is but necessary to refer to his conclusions from the authorities which he has collected. In § 1182, he says: ‘All these doctrines proceed upon the same grounds, that it is the duty of the court to effectuate the general intention of the testator. And accordingly the application of them ceases whenever such general intention is not to be found. If, therefore, it is clearly seen that the testator had but one particular object in his mind, as, for example, to build a church at W., and that purpose cannot be answered, the next of kin will take, there being in such a case no general charitable intention.' As it is the intention which is to govern and regulate the charity, the same rule must apply, whether it is created by deed or devise. That the donor intended the proposed trust for the benefit of the congregation of Christ Church, Columbia, admits of no question. According to the fact, as found by the circuit judge, 'the congregation of Christ Church no longer exists.' If there is no such congregation, who is there to claim any deed or even any benefit by virtue of the indorsement

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The trust having failed for want of persons capable of claiming its execution, on well-recognized principles the property reverts to the donor."

b. Rights of heirs of donor or creator. 1. Decisions recognizing reverter. In Hopkins v. Grimshaw (1897) 165 U. S. 342, 41 L. ed. 739, 17 Sup. Ct. Rep. 401, it appeared that one Forrest, in 1845, purchased a parcel of land in Washington, and conveyed it to three persons, "trustees for the Union Beneficial Society of Washington City," habendum to them "and their successors in office forever, for the sole use and benefit of the Union Beneficial Society of the City of Washington, as aforesaid, for a burial ground, and for no other purpose whatever." Forrest died in 1855; and all three trustees afterwards died. The Union Beneficial Society was an unincorporated association for the mutual aid of its members in case of sickness, and for their burial in case of death. This land was used by the society for a burial ground for nearly forty years, and then, by order of the board of health, ceased to be so used; and all the bodies which had been buried there were exhumed and removed to other cemeteries. In an action by the heirs to enforce a resulting trust, it was said: "If it be assumed, however, as most favorable to the defendant, that this deed created a charitable trust, it was not a grant indicating a general charitable purpose and pointing out the mode of carrying that purpose into effect, thus coming within the class of cases in which courts of chancery, when the particular mode had failed, have carried out the general purpose. .. But the trust was restricted, in plain and un

equivocal terms, to the particular society to be benefited, as well as to the purpose of a burial ground, adding (as if to put the matter beyond doubt), 'and for no other purpose whatever.' The trust would end, therefore, at the latest, when the land ceased to be used as a burial ground and the society was dissolved. In the case at bar, the trust created by the deed having been terminated, according to its express provisions, by the land ceasing to be used as a burial ground, and the dissolution and extinction of the society for whose benefit the grant was made, there arises, by a familiar principle of equity jurisprudence, a resulting trust to the grantor and his heirs, whether his conveyance was by way of gift, or for valuable consideration."

In Cumberland University v. Caldwell (1919) 203 Ala. 590, 84 So. 846, it appeared that a testatrix provided in her will in part as follows: "I give, devise, and bequeath the remainder in said real estate, after the expiration of my said sister's life estate therein, to the trustees and their successors, of Milton College, located at Fayetteville, Lincoln county, Tennessee, in trust to be invested and held by said trustees and their successors as an endowment fund for the benefit of the theological department of said college, subject, however, to the provisions hereinafter named. Said college is now under the control of the Columbia Synod of the Cumberland Presbyterian Church, and an effort is being made by said Synod to establish the said college as a permanent institution of learning under the care and management of said Columbia Synod. Now, if such effort shall fail, and the said college shall pass from the control of the Cumberland Presbyterian Church, then, in either event, I give the remainder of said real estate after the life estate aforesaid, to the trustees and their successors forever of the Cumberland University, located at Lebanon, Wilson county, Tennessee, to be by said trustees invested and held as a permanent endowment for the benefit of the theological department of said university." The provi

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