Meadors v. Sherrill , 212 S.W. 546 ( 1919 )

This action was instituted by R. E. Sherrill, R. C. Montgomery, and H. G. McConnell, as executors of the last will of W. A. Black, against appellant, upon certain promissory notes owned by the estate of said Black.

The defense urged, by plea in abatement, is that the will is a nullity under the Constitution and laws of Texas, which prohibit perpetuities, hence the qualification of the plaintiffs as executors thereunder is void. This is the sole question to be determined.

The court found for plaintiffs, and Meadors has appealed.

The will declares:

First, for burial; second, payment of debts; third, appointment of the above-named plaintiffs executors without bond; and, fourth, "I hereby will and bequeath unto the said H. G. McConnell, R. E. Sherrill and R. C. Montgomery, in trust for the purposes hereinafter stipulated all of the property of which I may die seized and possessed, including real, personal and mixed property, and that of every kind and description. And it is my will and desire that the said trustees have the entire management and control of all of said property, hereby granting unto them full power and authority to sell and convey the same, to invest and reinvest the proceeds from time to time, pay all reasonable charges and expenses in connection with the handling, managing, caring for, controlling and selling said property, and finally, whenever in their judgment it is proper or necessary for the First Presbyterian Church of Haskell, Texas, in connection with the Presbyterian Church of the United States, to have a new church building at Haskell, to pay the entire proceeds of all my property in money then remaining into the hands of the trustees of said church to be by them at once expended in the construction of a new building at Haskell, Texas, which when completed shall be owned by and shall belong absolutely and in fee simple to said Presbyterian Church."

Fifth, "It is my will and I hereby direct that should any one or more of my executors above named from death, removal, inability, or otherwise, fail or refuse to act as such executor that then the survivor or survivors, who do qualify under the law and act as such executor or executors, shall have all the powers, privileges and authorities that I have conferred upon all of them by the foregoing provisions of this will. And be it understood that, whether any one or any number of them shall qualify and act, as such executors, he or they shall nevertheless, be exempt from the giving of any security, or bond as such executor or executors, as the case may be."

The will was duly proved and admitted to probate, and the above-named persons qualified as executors.

The reasons assigned for the claim that this will contravenes the constitutional inhibition against perpetuities are (a) That it does not vest a present estate, nor (b) does it provide that the estate shall vest within 21 years from the date of the death of the testator, but (c) that the title is to rest upon the contingency that the executors make up their minds that it "is proper or necessary for the Presbyterian Church of Haskell in connection with the Presbyterian Church of the United States to have a new church at Haskell," and that this is a contingency which may not happen within the prescribed time, 21 years, and (d) that they are contingencies which may never happen.

Appellant frankly concedes that the will is valid if it creates a vested interest or estate in the church as beneficiary, and cites Anderson v. Menefee, 174 S.W. 905. The question of gift in trust for charitable uses was not involved in that case, so the principles of law applied in determining the issues there involved do not apply to the instant case.

It has been said that charitable uses are favorites with the courts of equity, and that a construction of all instruments where they are concerned is liberal in their behalf (Perry, Trusts, § 709), and it was declared by the Supreme Court of Texas that the inhibition against perpetuities does not apply to bequests for charitable uses. Paschal v. Acklin, 27 Tex. 197. By this will the title to the property vested in the named trustees immediately upon the death of the testator, but in trust for the church, and the fact that the trustees were by the will clothed with discretionary power to decide when the necessity or propriety of the construction of a church arose does not destroy the right of the officers of the church to take the proceeds of the property when the occasion in fact arose. Ould v. Washington Hospital for Foundlings, 95 U.S. 303, 24 L. Ed. 450; Russell v. Allen, 107 U.S. 163,2 S. Ct. 327, 27 L. Ed. 397; Paschal v. Acklin, supra.

This is, we conclude, the law applicable to the provisions of this will, under the authorities cited and those referred to therein. Quoting from one of the cases:

"The doctrine finds support upon the ground that the intention in favor of charity is absolute, the gift and the constitution of the trust is immediate, takes effect in præsenti, and the only thing which is postponed or made dependent for its execution upon future and uncertain events is the particular form or mode which the donor would have applied to the execution of the charity."

These observations are applicable to the points raised and authority for holding the will to be valid.

Afflirmed.