E. Henry Wemme Co. v. Selling , 123 Or. 406 ( 1927 )

This is an action wherein the plaintiff, E. Henry Wemme Company, an Oregon corporation, asks that a resulting trust be declared in its favor for property held by the defendant, E. Henry Wemme Endowment Fund, a charitable organization, also incorporated under the laws of the State of Oregon. The plaintiff is named the residuary legatee in the will of E. Henry Wemme, deceased, who died in January, 1914, and the property sought to be recovered by plaintiff was acquired through the provisions of clause 6 of the will of said decedent. The will, containing clause 6, is as follows:

"(1) I give, devise and bequeath unto H.A. Weis, Jessie M. Carson and J.J. Cole and their successors, lots one (1), four (4), five (5), and eight (8), in block fifty-three (53), in Couch's Addition to the city of Portland, and also lots one (1) and four (4), and the south twenty (20) feet of lot five (5) in block nine (9) of Couch's Addition to the city of Portland, and the south one hundred and twenty (120) feet of block seventy-two (72) in East Portland, now a part of Portland, and all now being in the city of Portland, Multnomah County, State of Oregon, to be held in trust, however, by said H.A. Weis, Jessie M. Carlson and J.J. Cole, their successors for the uses and purposes hereinafter set forth as follows: Said trustees and their successors shall have power and authority to hold, manage, improve, repair or lease said property or any part thereof without any other authorization than that hereby given, and shall collect all rents, issues and profits arising from said property, and shall from such rents, issues and profits, first pay all taxes, assessments and charges for whatsoever kind or nature lawfully made against said property, or any part thereof.

"(2) My said trustees shall immediately after my death cause to be formed a corporation under the name of `E. Henry Wemme Endowment Fund,' under and by virtue of the laws of the State of Oregon, providing that the duration of said corporation shall be perpetual, that its principal office and place of business shall be in the city of Portland, County of Multnomah and State of Oregon, with a capital stock to be determined by my trustees, not to exceed, however, the reasonable value of the property hereinbefore devised to my trustees at the time of such incorporation, and incorporated for the purpose of buying, owning, holding, managing, improving, mortgaging and leasing the real property hereinbefore devised to my trustees, and for the purpose of conducting a maternity home or lying-in hospital for unfortunate or wayward girls in the city of Portland, Multnomah County and State of Oregon.

"(3) My said trustees shall jointly subscribe for all the capital stock of said corporation, and shall thereupon complete the organization and cause such action to be taken by it that it shall purchase of my said trustees all of said property hereinbefore devised to my trustees and in payment therefor issue its capital stock to my said trustees, jointly, and thereupon said trustees shall by good and sufficient conveyance or conveyances grant, bargain, sell and convey to said E. Henry Wemme Endowment Fund, a corporation, all the real property hereinbefore devised to said trustees, and thereupon the capital stock of said corporation of E. Henry Wemme Endowment Fund shall be issued to said trustees jointly in one certificate which capital stock witnessed by said certificate shall be held in trust by said trustees and disposed of by them as hereinafter directed.

"(4) Immediately upon the completion of the organization of said E. Henry Wemme Endowment Fund, and the transfer to said corporation last mentioned of the property herein devised to my trustees, then and thereupon said corporation shall have the right to borrow a sum of money not to exceed Seventy Five Thousand and no/100 ($75,000.00) Dollars, upon the promissory note of said corporation, and to secure the payment of such promissory note by mortgage executed by it covering lots one (1) and four (4) and the south twenty (20) feet of lots five (5), in block nine (9) of Couch's Addition to the city of Portland, in Multnomah County, State of Oregon, said promissory note and mortgage shall contain such provisions and conditions as may be determined and agreed upon by said corporation and the person, firm or corporation from whom it may secure such loan.

"(5) After securing money on the mortgage hereinbefore provided to be executed by it said E. Henry Wemme Endowment Fund shall proceed to purchase suitable real estate as a site for a maternity home for unfortunate and wayward girls, and shall construct thereon a suitable home for the reception, accommodation, care, treatment and comfort of unfortunate and wayward girls who may be in need thereof, and shall furnish, equip and maintain such maternity home without cost or charge to the inmates thereof, but shall use the rents, issues and profits arising and issuing out of the property owned by said E. Henry Wemme Endowment Fund, in maintaining, furnishing and equipping said maternity home, and in caring for and providing for the inmates thereof, making a provision, however, should the said corporation deem it necessary for a sinking fund from such rents, issues and profits, to pay out thereof, when it shall have become due, said note given by the corporation as hereinbefore provided. Said maternity home shall be known as the White Shield Home of Portland, Oregon, and the inmates shall be admitted thereto irrespective of religion or nationality.

"(6) Said corporation by and through my said trustees who shall constitute the board of directors thereof, shall after the construction of said home, open and thereafter conduct the same for the accommodation, care and keeping of unfortunate and wayward girls as a lying-in hospital without charge therefor.

"(7) In case of the death, resignation or permanent inability of any or either of my said trustees to act as such trustee or trustees, then and in that event the successor or successors of my trustees shall have the right and shall name and appoint the successor or successors of my trustees who may die, resign or be permanently disabled from the performance of the duties as my trustee hereunder, and such successor shall have the right in the same way to appoint their successors and so it shall continue, and a majority of the trustees shall have the right to exercise full power and authority under and by virtue of the provisions of this my last will and testament.

"(8) Upon the expiration of three years from and after my death, I direct that my trustees transfer to the different churches of the Church of Christ, Scientist of Portland, Oregon, authorized and chartered by the head Church of Christ Science known as the Mother Church of Boston, Massachusetts, all the capital stock of said E. Henry Wemme Endowment Fund, in equal parts, to be theirs forever, for their own respective uses and benefit and without any charge or trust reserved to my estate of whatsoever kind or nature, and thereupon my trustees and their successors shall be considered as having completed their duties herein and discharged.

"(9) I hope, however, this is not directory, but merely a suggestion that the maternity home constructed as hereinbefore provided shall be continued by said corporation E. Henry Wemme Endowment Fund, perpetually and forever, but I do not make this binding upon said Church of Christ Science, or upon said E. Henry Wemme Endowment Fund, a corporation for the reason that I have implicit faith and confidence in the Church of Christ Science, and believe that they will be perpetual, and I realize the inability of one now living to determine what in the future might be the greatest need and benefit to suffering humanity, and therefore I have given absolutely and without reservation all of the stock of said corporation of said E. Henry Wemme Endowment Fund to said Church of Christ Science believing that they will expend the rents, issues and profits and all the proceeds of the said E. Henry Wemme Endowment Fund in a manner so as to create the greatest relief for the greatest number of suffering humanity."

It appears from the record of this and other cases, involving the same property, which have been before this court, that the provisions of clause 6 just quoted, relating to the construction of a maternity home, were carried out, and that the home so built was operated by the trustees named in the will until April, 1919, when all the capital stock of the Endowment Fund was transferred to the six Churches of Christ, Scientist, of Portland, in equal parts, and the control of the Endowment Fund and the White Shield Home passed to the churches. On or about July 1, 1919, or within three months after the churches were given control of the Endowment Fund and the White Shield Home, they closed the home and ceased to operate it for the purpose intended, and in February, 1920, the churches sold the home to the Salvation Army for a reported consideration of $80,000, which the churches proceeded to expend in the purchase and improvement of land in the neighborhood of Neff, Clackamas County, Oregon, for a benevolent purpose more in keeping with their religious tenets than was the conducting of a maternity home for fallen women in Portland.

The record shows that in 1919, after the United States entered the World War, the Alien Property Custodian seized 92 per cent of the capital stock of the E. Henry Wemme Company, the plaintiff in the present suit, said stock being owned by designated alien enemies under the war powers of the government, and, because of such seizure, said corporation remained under control of the said custodian until a short time prior to the bringing of the present action.

In August, 1922, five relatives and heirs of E. Henry Wemme, deceased, all of them citizens of Germany, filed a suit in the Circuit Court of Multnomah County making the six Churches of Christ, Scientist, of Portland, parties defendant, by which suit they, as the legal heirs of E. Henry Wemme, deceased, sought to recover the property described in clause 6, hereinbefore quoted, on the ground that the churches had disposed of the White Shield Home and were appropriating the property left them in trust by E. Henry Wemme to their own use.

An amended complaint was filed in which the Attorney General of the State of Oregon was made a party defendant. The Attorney General claimed a trust was established by the will, and the heirs, as plaintiffs, waived their rights and joined the plea of the Attorney General. Upon the issues joined between the parties to that suit, the Circuit Court of Multnomah County held that the property belonged to the churches under the terms of the will. An appeal was had to this court, the result being a reversal of the decision of the Circuit Court, reported in Wemme v. FirstChurch of Christ, etc., 110 Or. 179 (219 P. 618, 223 P. 250). This decision is referred to and discussed later.

In 1925, the Alien Property Custodian of the United States filed an action as plaintiff in his official capacity, making the E. Henry Wemme Endowment Fund and its trustees parties defendants, and the plaintiff herein a party plaintiff, in which action, he, as such custodian, sought to recover the property in litigation in the present suit, on the ground of a lapsed devise. The decision in this case, Sutherland v. Selling, 16 F.2d 865, and its effect on the present case is also discussed later.

For various reasons, during the extended litigation, the present trustees of the E. Henry Wemme Endowment Fund are in control of the fund and its assets with no charity to maintain and nothing to do but administer the assets and receive the income. If the plaintiff prevails in this action as residuary legatee, it will be an end to the Endowment Fund as such. If the defense is successful, the trustees of the fund announce their intention of building another maternity home in Portland for unmarried expectant mothers.

The defendants, as a principal defense in this suit and by way of answer, set up the decision of this court in Wemme v. FirstChurch of Christ, etc., 110 Or. 179 (219 P. 618, 223 P. 250), and the decision of the federal court in Sutherland v.Selling, 16 Fed. Rep. 2d 865, as res judicata against the plaintiff, and further raise the question of estoppel in that plaintiff, having invoked the jurisdiction of the federal court, is estopped from denying such jurisdiction.

At the moment E. Henry Wemme died, the E. Henry Wemme Company, plaintiff herein, became seised, as residuary legatee named in the will of the deceased, of a vested right as such residuary legatee, and such right could not be adjudicated, or limited, or taken away in any proceeding to which it was not legally a party.

In the case of Wemme v. First Church of Christ, etc.,110 Or. 179 (219 P. 618, 223 P. 250), the will of E. Henry Wemme was in evidence and disclosed that the E. Henry Wemme Company was an indispensable party in any proceeding in which the validity of the will or the rights of said residuary legatee was an issue, and should be made a party; and the only reason for not doing so in that suit seems to be that the validity of clause 6 was not raised, all parties to that litigation being satisfied to have the interpretation of the court as to whether or not a trust had been created by the provisions of said clause. Only parties to a litigation are bound by the decision of the court and such parties are those named in the pleadings whose rights are set out to be adjudicated. An examination of the judgment-roll in the case stated shows that the name of E. Henry Wemme Company does not appear in the pleadings and its rights were not set forth therein, or adjudicated by the Circuit Court of Multnomah County, or by this court. In the opinion of the Circuit Court by Mr. Justice BELT, then sitting in that court, it was said in conclusion:

"In view of these conclusions it follows that the suit of the plaintiff heirs and the cross complaint of the attorney general are dismissed and that each party pay their own costs and disbursements."

The name of the E. Henry Wemme Company appears for the first time in the caption of the findings of fact after trial and decision in the Circuit Court: Southern Pine Lumber Co. v.Ward, 16 Okla. 131 (85 P. 459); Reed v. Hollister, 106 Or. 407 (212 P. 367).

In Jackson v. Ashton, 8 Pet. (U.S.) 148 (8 L. Ed. 898, see, also, Rose's U.S. Notes), Mr. Chief Justice MARSHALL said:

"The title or caption of the bill is no part of the bill, and does not remove the objection to the defects in the pleading."

It is a principle of law that persons not parties to a proceeding are not bound by the findings and judgment therein, and their rights cannot be determined in their absence. It therefore follows that the proceedings and judgments heretofore had and rendered in the state courts, involving the property in question in the present suit, cannot be held to be res judicata against the plaintiff in this action. See Beasley v. Shively,20 Or. 508 (26 P. 846); Handley v. Jackson, 31 Or. 552 (50 P. 915, 65 Am. St. Rep. 839); Haney v. Neace-Stark Co.,109 Or. 93 (216 P. 757, 219 P. 190).

The case in the federal court presents a different situation. As has been stated, the plaintiff corporation was under the control of the Alien Property Custodian from 1919 until a short time prior to the bringing of the present action, and was therefore under his control when the case of Sutherland v.Selling, 16 F.2d 865, referred to, was started in the United States District Court for the District of Oregon, and was brought under his direction. The custodian and the corporation were joined as plaintiffs. The gravamen of that action seems to have rested on the belief that the decision of this court inWemme v. First Church of Christ, etc., supra, deprived the plaintiff corporation herein of its property without due process of law in contravention of the provisions of the Fourteenth Amendment to the federal Constitution, and the federal court was asked to set aside the judgment of this court. There was no diversity of citizenship and no power in the federal court of original jurisdiction to set aside the state judgment: Hewitt v. Hewitt, 17 F.2d 716; Shanks v. Banting Mfg. Co.,9 F.2d 116; Graham v. Boston, 118 U.S. 167 (30 L. Ed. 196,6 S. Ct. 1009, see, also, Rose's U.S. Notes).

The late learned Judge WOLVERTON tried the case in the federal court and in his decision said:

"The matter was one wholly of local concern, and unless there was diversity of citizenship or a federal question involved, the federal court could have no jurisdiction in the premises, and then only when the jurisdiction was regularly sought by a competent party. It results therefore that I am bound by the state court's findings and adjudication."

Judge WOLVERTON made no attempt to decide the rights of the plaintiff herein as a residuary legatee under clause 6 of the will in controversy. When he said "the matter was one wholly of local concern" he no doubt meant either the issue between the Attorney General and the churches, or the power to set aside the judgment of this court, and could not have referred to the general construction of wills, as the learned judge knew that the construction of wills was controlled by well-known rules of law, universally applied, and could be applied by federal courts in cases in which they had jurisdiction by reason of diversity of citizenship or a federal question involved: Barber v.Pittsburgh C. Ry., 166 U.S. 83 (41 L. Ed. 925,17 S. Ct. 488).

Judge WOLVERTON no doubt felt, and properly so, that the rights of the plaintiff herein must of necessity first be passed upon by the courts of this state. He was bound by the decision of this court already rendered, not because of what was decided, but for the reason that he had no authority or power to set it aside, as only in cases of diversity of citizenship could he interfere with the decision of state courts, and then only by enjoining their enforcement, and not by setting aside the judgment as prayed for by plaintiffs in that action: Hewitt v. Hewitt,17 F.2d 716.

If the plaintiff herein felt itself injured by the previous decision of the courts of this state as it alleges in its bill in the present action, it had the right, and it was its duty to first seek relief in the state courts, as it now does, and if this, the highest court in the state, refuses the right of adjudication according to the law of the land, then resort might be had to the United States Supreme Court under the Fourteenth Amendment to the federal Constitution. The rights of a litigant, under these circumstances, are fully discussed and determined inShanks v. Banting Mfg. Co., 9 F.2d 116.

Judge WOLVERTON rendered no decision on the merits of the case as presented by the pleadings, and clearly stated he had no jurisdiction or power so to do. His comment on the decision of this court is in no way binding upon this court or the litigants, for if, as he said, he was bound by the decision of this court, no matter how he was bound and had no jurisdiction to try the case on its merits, then his jurisdiction was limited to a dismissal of the case: Murray v. City of Pocatello,226 U.S. 318 (57 L. Ed. 239, 33 S. Ct. 107).

An appeal was taken by the plaintiffs from the decision of Judge WOLVERTON to the United States Circuit Court of Appeals, Ninth District, and in an opinion by the Honorable Judge RUDKIN of that court in the case of Sutherland v. Selling, supra, Judge WOLVERTON was sustained and the appeal dismissed. Judge RUDKIN was even more positive in his statements regarding jurisdiction than was Judge WOLVERTON. Judge RUDKIN held that all parties, being citizens of the State of Oregon, except the Alien Property Custodian, who only possessed the rights of a stockholder and could not maintain the action as officer of the government, and no federal question being involved, the court was without jurisdiction. The following is a quotation from the decision:

"This is but another illustration of attempts so often made to circumvent the judgments and decrees of state courts of competent jurisdiction by appealing to the federal courts on some fancied constitutional ground."

And later in the opinion Judge RUDKIN said:

"The rights of the alien property custodian are not superior to the rights of the corporation whose stock he seized, or to the rights of other stockholders. The custodian did not seize the property of the endowment fund, and had no right to seize it. He seized only the stock of alien enemies in a private corporation, and that seizure vested in him the rights of a stockholder and nothing more. Such rights, under ordinary circumstances, must be enforced through the medium of the corporation, and the rights of the custodian as a stockholder forms no exception to the general rule."

Where a court is without jurisdiction, or is unable to give the relief prayed for, its acts and proceedings beyond a dismissal can be of no force and validity. This question has been passed upon by this court in Haney v. Neace-Stark Co., 109 Or. 93 (216 P. 757, 219 P. 190). At page 123 of the opinion Mr. Justice BROWN said:

"In the instant case, the court made no determination of the issue in question. The court expressly said so, and its declaration is of record and has been received in evidence by the offer of the defendant, for the purpose of proving its plea of former adjudication. The defendant made the record. It is incumbent upon him who would avail himself of the defense of former adjudication to establish it. The evidence that has been offered and received into the record not only fails to prove that the matter at issue was adjudicated in the former hearing but conclusively establishes that the court made no determination of the vital issue above noted."

See Swift v. McPherson, 232 U.S. 51 (58 L. Ed. 499,34 S. Ct. 239), and Murray v. City of Pocatello,226 U.S. 318 (57 L. Ed. 239, 33 Sup.Ct. Rep. 107).

I cannot see that the federal court in Sutherland v.Selling, supra, decided anything beyond the question that it had no jurisdiction or power to determine the case upon its merits or set aside the state judgment, as there was no diversity of citizenship, and the federal officer who was a party plaintiff and seeking the jurisdiction of the federal court as such officer had no right to maintain the action, as he was limited to the rights of a stockholder and therefore the federal court was bound by the decision of this court. See 25 C.J., 694.

Defendants contend that the plaintiff having invoked the jurisdiction of the federal court is estopped from denying or challenging such jurisdiction. I do not think the point well taken, at least, when the courts held, as they did, that they had no jurisdiction to decide the case on its merits, but were bound by a decision of the state court, and made no attempt to pass upon and either grant or deny the relief prayed for by plaintiff in its bill. Estoppel can only lie where relief is sought in a proper manner of a court which has jurisdiction and power to grant the particular relief prayed for, and then only to the extent that relief is granted or denied. Estoppel cannot extend beyond questions passed upon by the court that are within the issues presented by the pleadings, which were within the jurisdiction and power of the court to decide: Goodnough Merc. Co. v.Galloway, 48 Or. 239 (84 P. 1049).

Counsel for defendants lay great stress on Dowell v.Applegate, 152 U.S. 327 (38 L. Ed. 463, 14 Sup. Ct.Rep. 611, see, also, Rose's U.S. Notes), in support of their plea of resjudicata and estoppel, but counsel evidently fails to recognize that in this case the court held that it had jurisdiction to decide the case on its merits as the rights of the government under a federal statute were involved thus clearly distinguishing this case from Sutherland v. Selling, supra.

I feel fully justified, by the facts and the law as stated, and cases cited in support thereof, in holding, as I do, that the plea by defendants of res judicata and estoppel is not well taken, and that plaintiff is entitled to have its rights as residuary legatee determined, which involves the construction of clause 6 of the will of E. Henry Wemme, deceased, which clause has already been set out in full.

This brings us to a consideration of the case on its merits, and I will first take up the contention of plaintiff that clause 6 of the will is void. This is a question that has never been decided by this or any other court in this state, and the question was expressly left open inWemme v. First Church of Christ, Scientist, 110 Or. 179, 211 (219 P. 618, 223 P. 250), when Mr. Justice RAND used this expressive language:

"Whether the purposes of the testator in providing for the substitution of some other form of charity, which, at some future age, may be of greater benefit to a greater number of suffering humanity, are void because so vague and uncertain, or whether morality will ever so universally prevail that it will render this particular form of charity unnecessary, are matters with which we are not now concerned."

In the same case in 115 Or. 281 (237 P. 674), Mr. Justice COSHOW said: "The will of Mr. Wemme is ambiguous." In that decision this court only refused to set aside the sale of the White Shield Home, without passing upon the question as to what effect the disposition of the particular charity had upon the trust, if any, or the validity of clause 6. A reading of the previous decisions of this court, with relation to this trust, indicates clearly that no attempt was made to pass upon the validity of the clause, and the question is now raised for the first time and by the indispensable party who has the right to raise it.

Courts have no power to make wills or change them to meet unexpected emergencies. The function of the court is to interpret the will as written according to the words therein contained. The intention of the testator is to be obtained from the words used, and all of the words of the will must be considered and given their ordinary and usual meaning in arriving at the proper construction.

Mr. Justice BROWN in Boots et al. v. Knox et al., 107 Or. 96,98 (212 P. 469, 213 P. 1013), said:

"The statute of this state requires the court to obey the directions of the will and to carry out the true intent and meaning of the testator as therein expressed. * * No court can make a will by construction or interpretation."

And in Re Wilson's Estate, 85 Or. 604 (167 P. 580), Mr. Justice BEAN, at page 614, said:

"As we enter upon the duty imposed, the weight of the responsibility seems lessened when we remember that the court cannot change one `jot or tittle' of the law. It is for us simply to expound it as we find it made for us and the other members of society. Crystallized for the majority it perhaps in some instances resembles ready made clothing which does not always appear to fit exactly. In other words, the court cannot revise or make a will for the decedent. It is the function of the court to construe the one made by him and declare its effect."

See, also, Hunter v. Attorney General, [1899] App. Cas. (Eng.) 309; Herzog v. Title Guaranty Trust Co., 177 N.Y. 86 (69 N.E. 283, 67 L.R.A. 146).

Unless the Wemme Trust, as created in clause 6, constitutes a legal charity, it is void.

In Morice v. Bishop of Durham, 9 Ves.Jr. (Eng.) 399, there was a bequest to the Bishop of Durham for such objects of benevolence and liberality as he in his own discretion should select. Sir WILLIAM GRANT said:

"Then is this a trust for charity? Do purposes of liberality and benevolence mean the same as objects of charity? That word in its widest sense denotes all the good affections, men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this court. Here its signification is derived chiefly from the Statute of Elizabeth. Those purposes are considered charitable, which that statute enumerates, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity generally shall be applied. But it is clear liberality and benevolence can find numberless objects, not included in that statute in the largest construction of it." The trust was held void.

Judge STORY in 3 Eq.Juris. (14th ed.), Section 1539, said:

"But, however extensive the jurisdiction may originally have been over the subject of charities, and however large its application, it is very certain that since the statute of Elizabeth, no bequests are deemed within the authority of chancery, and capable of being established and regulated thereby, except for those purposes which that statute enumerates as charitable or which by analogy are deemed within its spirit and intendment."

Oregon takes its law of charitable uses from the mediaeval equitable jurisdiction dealing with the subject antedating the reign of Elizabeth. But regardless of its origin, the definition of a legal charity in Oregon, as well as elsewhere, is found within the scope of the statute of 43d of Elizabeth: Pennoyer v. Wadhams, 20 Or. 274 (25 P. 720, 11 L.R.A. 210); In reJohn's Will, 30 Or. 494 (47 P. 341, 36 L.R.A. 242); Vidal v.Girard, 2 How. (U.S.) 127 (11 L. Ed. 205).

A legal charity is therefore a gift to a class of indefinite beneficiaries coming within the scope of any of the objects enumerated in the statute of 43d of Elizabeth: Morice v.Bishop of Durham, 9 Ves.Jr. (Eng.) 399, 10 Ves.Jr. (Eng.) 522; Perry on Trusts, section 696;Verge v. Sommerville, [1924] App.Cas. (Eng.) 496; In reMacDuff, [1896] 2 Ch. (Eng.) 451. These objects have been divided into four classes: (1) Trusts for the relief of poverty; (2) trusts for the advancement of education; (3) trusts for the advancement of religion; and (4), the class of trusts beneficial to the community mentioned in the statute. Definitions based on these classifications are found in Jackson v. Phillips, 14 Allen (Mass.), 539; Pennoyer v. Wadhams, 20 Or. 274 (25 P. 720, 11 L.R.A. 210); In re Tetley, [1923] 1 Ch. Div. 258;Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] App.Cas. 531, 583.

It follows that, if Wemme had left his fund solely for founding a refuge home, the gift would be good as coming within the scope of the statute of 43d of Elizabeth. But he went much further than this and created in the Christian Science churches an exclusive power to continue the home in their sole discretion, or abandon it and devote the income of the Endowment Fund to suffering humanity.

Wemme planned an incorporated endowment fund which should be in the exclusive control of the Christian Science churches for such beneficiaries as they might choose with no limit except the confines of suffering humanity. The operation of the White Shield Home was merely a suggestion. Wemme did not choose to bind the churches to operate the White Shield Home, as he wished to leave them free to accomplish his larger purpose, namely, the uplift of suffering humanity. Clause 9 contains an explicit statement of the reasons which actuated Wemme in giving the churches the power to change the Endowment Fund from the support of the White Shield home to the support of suffering humanity. He said:

"I do not make this (operation of the White Shield Home) binding upon said Church of Christ Science, or upon said E. Henry Wemme Endowment Fund, a corporation, for the reason that I have implicit faith and confidence in the Church of Christ Science, and believe that they will be perpetual, and I realize the inability of one now living to determine what in the future might be the greatest need and benefit to suffering humanity."

In other words, he has such confidence in the churches that he gave them entire freedom to expend the fund for the support of the White Shield Home, or for some other purpose of their own choosing. And so Wemme, concluding clause 9, says:

"And therefore I have given absolutely and without reservation all of the stock of said corporation of said E. Henry Wemme Endowment Fund to said Church of Christ Science believing that they will expend the rents, issues and profits and all the proceeds of the said E. Henry Wemme Endowment Fund in the manner so as to create the greatest relief for the greatest number of suffering humanity."

This alternative power created a benevolent trust which is void. The churches, under this power, could devote the entire income to an object noncharitable in its nature.

In order to constitute a legal charitable trust, the trustee must be compelled, by the will, to devote the entire fund to charity; and an alternative power to devote the fund to purposes noncharitable is fatal to the validity of the trust.

In Volume 4, Laws of England, page 146, Section 230, the Earl of HALSBURY says:

"To constitute a good and charitable gift the application of the funds for charitable purposes must be obligatory. If the trustees are allowed an alternative as to whether the purposes to which they apply the subject matter of the gift are to be charitable or something else, the trust cannot be maintained."

And the same principle is illustrated by Lord ELDEN in Morice v. Bishop of Durham, 10 Ves.Jr. (Eng.) 521, 541, where he said:

"But the true question is, whether, if upon the one hand he might have devoted the whole to purposes, in this sense charitable, he might not equally according to the intention have devoted the whole to purposes benevolent and liberal, and yet not within the meaning of charitable purposes, as this court construes those words; and if according to the intention it was competent for him to do so, I do not apprehend, that under any authority upon such words the court could have charged him with maladministration, if he had applied the whole to purposes, which according to the meaning of the testator are benevolent and liberal; though not acts of that species of benevolence and liberality, which this court in the construction of a will calls charitable acts."

And so the rule is well settled that where a testator creates a discretion in a trustee to devote the entire fund to charitable or noncharitable purposes, the gift is void.

In Nichols v. Allen, 130 Mass. 211 (39 Am.Rep. 445), the bequest was to trustees to distribute the fund "to such persons, societies or institutions as they may consider most deserving." Chief Justice GRAY, with relation to this gift, said:

"A trust which by its terms may be applied to objects which are not charitable in the legal sense, and to persons not defined, by name or class, is too indefinite to be carried out."

In Attorney General v. National Provincial and Union Bank, [1924] App.Cas. (Eng.) 262, the following bequest was held void:

"For such patriotic purposes or objects and such charitable institution or institutions, or charitable object or objects in the British Empire as my trustees may in their absolute discretion select in such shares and proportions as they shall think proper."

In Ellis v. Selby, 1 M. C. (Eng.) 286, Lord Chancellor COTTENHAM held the following bequest void:

"For such charitable or other purposes as they, my said trustees and the survivor or survivors of them, his executors or administrators, shall think fit without being accountable to any person or persons whatsoever for such disposition thereof."

In Tilden v. Green, 130 N.Y. 29 (28 N.E. 880, 27 Am. St. Rep. 487, 14 L.R.A. 33), the testator created a trust giving his trustees full power to devote the entire fund to the Tilden Trust for the purpose of establishing and maintaining a free reading-room, or in the alternative; "to such charitable educational and scientific purposes as in the judgment of my said executors and trustees will render the rest, residue and remainder of my property most widely and substantially beneficial to the interest of mankind."

In holding this trust void, the court said:

"If the Tilden Trust was but one of the beneficiaries which the trustees may select as an object of the testator's bounty, then it is clear and conceded by the appellants that the power conferred by the will upon the executors is void for indefiniteness and uncertainty in object and purpose. * *

"It is only in case that the executors deem it expedient so to do that they are to convey the whole or any part of the residue to the Tilden Trust. Whether that corporation should take anything rested wholly in the discretion of the executors. * * The validity of the power depended upon its nature, not its execution." SeeHolland v. Alcock, 108 N.Y. 312 (16 N.E. 305, 2 Am. St. Rep. 420).

In Re Johnson's Estate, 100 Or. 142, 158 (196 P. 385), Mr. JUSTICE BEAN said:

"The purported trust is not defined, by the instrument probated to be a charitable one. Benevolency is a much broader term than charity and embraces objects and purposes which are not charitable. The will cannot be sustained as creating a public charity."

In John v. Smith, 91 Fed. 827, 829, Judge BELLINGER, in the Oregon federal court, said:

"The admittedly true rule is stated by the court to be that the trust will be enforced when the fund is given to a trustee competent to take, and the charitable use is so far defined as to be capable of being specifically executed. It is contended by the plaintiff that to this rule should be added the qualification that the object of the trust and the beneficiaries must depend upon the will of the testator, and not upon that of other parties. As to this it is clear that, if the will of the testator does not indicate the beneficiaries of his bounty, no other or substituted will can, and the charity must fail, as all charities must in like cases, not because of any want of provision on the part of the testator, but because the nature of such charities does not admit of their execution."

In Morice v. Bishop of Durham, 10 Ves.Jr. (Eng.) 539, Lord ELDEN said:

"There was a principle suggested by all other cases of trust, that if a trust was declared in such terms, that this court could not execute it, that trust was ill declared, and must fail, for the benefit of the next of kin. * * as it is a maxim, that the execution of a trust shall be under the control of the court, it must be of such a nature, that it can be under that control; so that the administration of it can be reviewed by the court; or, if the trustee dies, the court itself can execute the trust. * * Then, looking back to the history of the law upon this subject, I say, with the Master of Rolls, that a case had not yet been decided in which the court has executed a charitable purpose, unless the will contains a description of that, which the law acknowledges to be a charitable purpose."

Grimmond v. Grimmond, [1905] App.Cas. (Eng.) 124; Read v.Williams, 125 N.Y. 560 (26 N.E. 730, 21 Am. St. Rep. 748);Wheeler v. Smith, 9 How. (U.S.) 55 (13 L. Ed. 44); Houston v. Burns, [1918] App.Cas. (Eng.) 337; Minot v. AttorneyGeneral, 189 Mass. 176 (75 N.E. 149); Hunter v. AttorneyGeneral, [1899] App.Cas. (Eng.) 309; Pennoyer v. Wadhams,20 Or. 274 (25 P. 720, 11 L.R.A. 210); Attorney General v.Brown, [1917] App.Cas. (Eng.) 393; Olliffe v. Wells,130 Mass. 221; Johnson v. Johnson, 92 Tenn. 559 (23 S.W. 114, 36 Am. St. Rep. 104, 22 L.R.A. 179).

In the prior litigation involving the construction of the Wemme trust, whether the trust was void as a whole for indefiniteness was left open by Mr. Justice RAND in Wemme v. First Church ofChrist, Scientist, 110 Or. 179 (210 P. 618, 223 P. 250). InWemme v. First Church of Christ, Scientist, 115 Or. 281, at page 289 (237 P. 674), Mr. Justice COSHOW declared the will "ambiguous." In the federal district court, Judge WOLVERTON expressed the opinion that the trust was void. I earnestly contend that the trust attempted to be created by Mr. Wemme is void for indefiniteness, and because of the discretion vested in the churches to use the fund for noncharitable objects.

But it is said that clause 6 of Wemme's will does not constitute an entire scheme and that the White Shield Home features of the trust can be saved, and the discretion vested in the churches to discontinue the operation of the White Shield Home ignored. This would not save the White Shield Home, as it had been sold by the churches to the Salvation Army about eight years ago, and since that time the Christian Science churches have renounced the trust. But if this situation did not exist, nevertheless the Wemme trust bears no semblance to a severable scheme. The exclusive discretion vested by Wemme in the churches to use the income of the fund for the White Shield Home, or for suffering humanity, excludes the idea that there could be a separation of the trust, for this would constitute the taking away from the churches the very power which Wemme vested in them because of his implicit faith and confidence.

We are confronted with the fact that we cannot respect certain parts of Wemme's will and ignore other parts of it, because of the fact that Wemme indicated in no way what part to respect, and what part to ignore. I therefore must take clause 6 of the will as an entire scheme and inseparable.

In Clossett v. Burtchaell, 112 Or. 585, 619 (230 P. 554), Mr. Justice RAND said:

"In the instant case there can be no separation of the trust created by the will whereby a part may be held valid and the rest invalid, without doing violence to the intention of the testator. It is all one entire scheme and no part of the scheme intended by the testator can be carried out except through the trust itself. If the trust is illegal, the entire plan of the testator must fail."

The principle on which Mr. Justice RAND based his opinion is too well settled to be questioned. See Hunter v. AttorneyGeneral, [1899] App.Cas.(Eng.) 309; Tilden v. Green, 130 N.Y. 29 (28 N.E. 880, 27 Am. St. Rep. 487, 14 L.R.A. 33); Bailey v. Buffalo Loan Co., 213 N.Y. 525 (107 N.E. 1043); Central Trust Co. v. Egleston, 185 N.Y. 23 (77 N.E. 989); Boal v. Metropolitan Ins. Co., 298 Fed. 894;Herzog v. Title Guarantee Trust Co., 177 N.Y. 86 (69 N.E. 283, 67 L.R.A. 146); Re Fair, 132 Cal. 523 (60 P. 442,64 P. 1000, 84 Am. St. Rep. 70); Hewitt v. Green, 77 N.J. Eq. 345 (77 A. 25); Lilley's Estate, 272 Pa. 143 (116 A. 392, 28 A.L.R. 366); Lyons v. Bradley, 168 Ala. 505 (53 So. 244).

The following cases seem to me to preclude the idea that, where a charitable trust good on its face is coupled with an option to the trustee to disregard it at will and apply the fund to purposes noncharitable in its discretion, the bequest may be sustained by cutting up the will piecemeal: Clossett v.Burtchaell, 112 Or. 585 (230 P. 554); Crim v. Williamson,180 Ala. 179 (60 So. 293); In re Sutro, 155 Cal. 727 (102 P. 920); Bristol v. Bristol, 53 Conn. 242 (5 A. 687);Fairfield v. Lawson, 50 Conn. 501 (47 Am.Rep. 669); Lepage v. McNamara, 5 Iowa, 124; Wilce v. Van Anden, 248 Ill. 358 (94 N.E. 42, 140 Am. St. Rep. 212, 21 Ann.Cas. 153); Taylor v.Keep, 2 Ill. App. 368; Grimes v. Harmon, 35 Ind. 198 (9 Am.Rep. 690); Spalding v. St. Joseph Ind. School, 107 Ky. 382 (54 S.W. 200); Maught v. Getzendanner, 65 Md. 527 (5 A. 471, 57 Am.Rep. 352); Gambell v. Trippe, 75 Md. 252 (23 A. 461, 32 Am. St.Rep. 388, 15 L.R.A. 235); Nichols v. Allen,130 Mass. 211 (39 Am.Rep. 445); Minot v. Attorney General,189 Mass. 176 (75 N.E. 149); Attorney General v. Soule,28 Mich. 153; Wheelock v. American Tract Soc., 109 Mich. 141 (66 N.W. 955, 63 Am.St. Rep. 578); Jones v. Patterson, 271 Mo. 1

(195 S.W. 1004, L.R.A. 1917F, 660); German Land Assn. v. Scholler, 10 Minn. (Gil. 260) 331; Van Syckel v. Johnson, 80 N.J. Eq. 117 (70 A. 657); Tilden v. Green, 130 N.Y. 29 (28 N.E. 880, 27 Am. St. Rep. 487, 14 L.R.A. 33); In re Shattuck, 193 N.Y. 446 (64 Am. St.Rep. 745); Bridges v. Pleasants, 39 N.C. 26 (46 Am. Dec. 94); Brennan v. Winkler, 37 S.C. 457 (16 S.E. 190);Fifield v. Van Vyck, 94 Va. 557 (27 N.E. 446, 64 Am. St. Rep. 745); Ruth v. Oberbrunner, 40 Wis. 238; Wheeler v. Smith, 9 How. (U.S.) 55 (13 L. Ed. 44).

In addition to the Wemme trust being void at its inception, it has become further crippled during the course of its administration. Shortly after the original trustees under the will turned over the White Shield Home and the E. Henry Wemme Endowment Fund to the Christian Science churches in 1919, they sold the White Shield Home to the Salvation Army and invested the proceeds of the sale in land at Neff, Oregon, pursuant to a plan to establish a Christian Science Foundation at that place. They claimed that Wemme created no trust, legal or otherwise, and that all the assets left by Wemme under clause 6 of the will was a direct gift to them. In the suit involving this question between the churches and the Attorney General, this court held that Wemme intended to create a trust, and that the churches were not the owners of the property: Wemme v. First Church of Christ,Scientist, supra. Thereupon, new trustees were appointed and an attempt was made by them to recover the White Shield Home in which they failed. See Wemme v. First Church of Christ,Scientist, 115 Or. 281 (237 P. 674). It appears from the record of this case before us by admission of the defendant trustees that they and the Attorney General do not question the title of the Salvation Army and that they regard the transfer as valid and final. See Burbank v.Burbank, 152 Mass. 254 (25 N.E. 427, 9 L.R.A. 748). And the defendant trustees plan to erect a new maternity home in lieu of the White Shield Home built by Wemme's original trustees under the terms of the will. But I do not find any power in the will, even if otherwise valid, to build another maternity home. The White Shield Home was sold by the Christian Science churches under a power in the will, and their renunciation of the trust precludes the delegation of their powers to others if the power to them was made exclusive by Wemme: Fontain v. Ravenel, 17 How. (U.S.) 369 (15 L. Ed. 80); Larkin v. Wikoff, 75 N.J. Eq. 462 (72 A. 98, 79 A. 365). Besides, it appears that the need for an additional maternity home does not exist, and when the court is confronted with such a situation arising after the partial execution of the trust, it will not waste the fund in a useless purpose even if authorized to do so: In re PrisonCharities, 16 Eq.Cas. (Eng.) 129.

The Child Welfare Commission in its official report to the Governor states that the needs of the unmarried mother and delinquent girl are well supplied in the existing institutions. I insert this part of the report:

"Letters of Transmittal. "To His Excellency, the Governor and the Honorable Senate and House of Representatives:

"Section 9841, Oregon Laws, provides that —

"`The Child Welfare Commission shall from the reports of its members, inspectors and visitors, and from the annual reports of the various agencies and institutions, prepare a comprehensive biennial report of child welfare work within the state, accompanied by special comments and recommendations; and such report shall be published at state expense for the information of the legislature and for distribution among the people.'

"In accordance with this section we herewith transmit the following biennial report for the period ending September 30, 1926.

"Respectfully submitted, "Judge MARY J. SPURLING, "Dr. PHILIP A. PARSONS, "Dr. JAMES W. ROSENFELD, "MILTON A. MILLER, Chairman.

"Delinquent Girls and Unmarried Mothers — Comparison between capacity and average daily census in institutions for delinquent girls and unmarried mothers.

"A study of the reports of the past biennial received from the four private institutions caring for delinquent girls and unmarried mothers reveals the fact that there has been a steady decrease in the average daily census of these institutions. Going back to the previous biennial, we find that in 1923, the average daily census was 217. In 1926, the average daily census was 186. The combined capacity of these institutions is 267. It is very apparent therefore that for the past year, the institutions were only running about two-thirds of their capacity. If this decrease should continue, it would appear that ultimately there will come the necessity of changing the functions of one of these institutions, in order that it might devote itself to a field of work not so well covered as the work of the unmarried mother and delinquent girl."

Mr. George Ehinger, secretary of the Child Welfare Commission, testified that in the existing institutions the unmarried mother occupied only a fractional part of the unused available facilities, and that building a new maternity home would be a useless expenditure as it would only add competition for the small number of such cases.

In concluding his testimony, he said:

"Q. Now, is there in your opinion any need for any more institutions to take care of maternity cases, that is illegitimate cases, in Multnomah County or State of Oregon at this time? A. No.

"Q. Based upon your knowledge and experience in these matters for the last five years, would you say there was any prospective need for such institutions in Multnomah County or the State of Oregon. A. No."

The defendant trustees or the Attorney General in no way contradicted this evidence or called any witness to testify otherwise. As it is the official report of the Child Welfare Commission of the State of Oregon and its secretary, I am satisfied that it is true. Under these circumstances, unless there is authority in the will, or we have cy pres power, the gift must fail, even if valid at its inception. The will speaks for itself and shows that Wemme's benevolence was confined either to the White Shield Home or to suffering humanity at the discretion of the churches. There is no general charitable intent in the will. No cause or purpose is held up as the object of the trust apart from the power given to the churches to operate the White Shield Home or give the fund to suffering humanity:Quimby v. Quimby, 175 Ill. App. 367; Biscoe v. Jackson, 56 L.J. Ch. (Eng.) 540; In re Wilson, [1913] 1 Ch. (Eng.) 314.

We have already said that a gift to suffering humanity is not a legal charity. And as the only specific object Wemme had in mind failed, we cannot exercise prerogative powers. If the trust were valid, the power to the churches being exclusive and based on implicit faith and confidence, the renunciation of the trust by them would for that reason bring about a lapse. See Fontain v.Ravenel, 17 How. (U.S.) 368 (15 L. Ed. 80, see, also, Rose's U.S. Notes); Beekman v. Bonser, 23 N.Y. 298 (80 Am. Dec. 269); Penny v. Turner, 2 Phill. (Eng.) 493; Gambell v.Trippe, 75 Md. 252 (23 A. 461, 32 Am.St. Rep. 388, 15 L.R.A. 235); Down v. Worrall, 1 My. K. (Eng.) 561; Hadley v.Hadley, 147 Ind. 423 (46 N.E. 823); Cole v. Wade, 16 Ves. Jr. (Eng.) 27; Fordyce v. Bridges, 2 Phill. (Eng.) 497;Crampton v. Rutledge, 157 Ala. 141 (47 So. 214, 5 A.L.R. 339).

Besides, if there were cy pres power available, it could not be used here because of the rule that when the testator himself has designed the method of administering the trust, the plan must be followed. Wemme having given to the churches the only power to change the object of his bounty, no one else can exercise that power even if the trust were valid.

In Larkin v. Wikoff, 75 N.J. Eq. 462 (72 A. 98, 79 A. 365), it is held, substantially, that when the testator himself has expressly provided for the situation arising in the event that his particular intention cannot be carried out, then his own direction is controlling and there is no room for the application of the cy pres doctrine. There is no cy pres power in Oregon.

Chief Justice WILMOT in Attorney General v. Lady Downing, Ambl. 571 (97 Eng. Reprint, 1, 13), said:

"The court thought one kind of charity would embalm his memory as well as another, and being equally meritorious would entitle him to the same reward."

In England, under the prerogative power of the king, many defective charities were made effective. But we have no such power. Our power in interpreting wills or administering trusts is limited to the carrying out of the wishes of the testator as expressed by him.

In Trustees of M.E. Church v. Adams, 4 Or. 77, 82, the court said:

"But the peculiar jurisdiction of the Court of Chancery over the subject of charitable uses, as it existed at common law and under the statute of 43 Elizabeth, and exists in many of the older states, where, as in Massachusetts, the principles of the statute of 43 Elizabeth still prevail, does not particularly affect this case. Equity jurisdiction, as administered by the courts of this state, derives its authority from the constitution and laws of Oregon, and includes only the ordinary jurisdiction of the Court of Chancery of England, modified and extended by the statutes of this state, and the changes in the condition of the affairs of our community."

This rule was approved by Judge WOLVERTON in In re John'sWill, 30 Or. 494 (47 P. 241, 346, 50 P. 226, 36 L.R.A. 242). See, also, Perry on Trusts, 1196. In Volume 4, Laws of England, 197, the Earl of HALSBURY says:

"On the failure of a gift which is not charitable in the legal sense the cy pres doctrine is not applicable."

See Attorney General v. The Haberdashers, 1 My. K. (Eng.) 420; Thomson v. Shakespear, 1 De G., F. J. (Eng.) 399;Carne v. Long, 2 De G., F. J. (Eng.) 75.

Even if there were no gift to suffering humanity at the discretion of the churches, and Wemme's postmortem activities were confined solely to the White Shield Home, its sale, with no need for an additional institution and no further power in the will, would cause the trust to lapse:Teele v. Bishop of Terry, 168 Mass. 341 (47 N.E. 422, 60 Am. St. Rep. 401, 38 L.R.A. 629); Gilman v. Burnett, 116 Me. 382 (102 A. 108, L.R.A. 1918A, 794); Bancroft v. Maine StatesSan., 119 Me. 56 (109 A. 585); Quimby v. Quimby, 175 Ill. App. 367; Allen v. Nasson Inst., 107 Me. 120 (77 A. 638);Murphy v. McBride, 14 Del. Ch. 457 (130 A. 283); Pres. Fellows of Har. Col. v. Jewett, 11 F.2d 119; In rePacke, [1910] 1 Ch. (Eng.) 437; In re White, 33 Ch. Div. 499;Randall v. Dixon, 38 Ch. Div. (Eng.) 213; Bowden v.Brown, 200 Mass. 269 (86 N.E. 351, 128 Am.St. Rep. 419).

So, in addition to the trust being void for indefiniteness, it has also lapsed, because of the sale of the White Shield Home, the renunciation of the trust by the churches, and the absence of need of an additional maternity institution. Under these circumstances, a resulting trust arises in favor of the plaintiff, residuary legatee: Nichols v. Allen, 130 Mass. 211 (39 Am.Rep. 445).

For the foregoing reasons I dissent from the majority of my associates and am of the opinion that the decree of the Circuit Court should be reversed.