Opinion
6 Div. 298.
March 29, 1945.
Rehearing Denied May 10, 1945.
Appeal from Probate Court, Jefferson County; H. R. Howze, Judge.
Wilkinson Wilkinson and John W. Lapsley, all of Birmingham, for appellants.
The power of disposition given the executor under the terms of the will is a power accompanied by a trust, and no estate, interest or title is thereby vested in the donee. 41 Am.Jur. 806-809; United States v. Field, 225 U.S. 257, 41 S.Ct. 256, 65 L.Ed. 617, 18 A.L.R. 1461; Supreme Colony, United Order Pilgrim Fathers v. Towne, 87 Conn. 644, 89 A. 264, Ann.Cas.1916B, 181; R.I. Hospital Trust Co. v. Anthony, 49 R.I. 339, 142 A. 531, 59 A.L.R. 1501. The power given the donee in Item 5, although accompanied by a trust, is nevertheless invalid for the reason that the charity to which the property shall be conveyed was not determined by the testator himself. It does not constitute a disposition by the testator. It is in effect an attempt by the testator to authorize another to make disposition of property which he himself failed effectively to do except by devise of the particular estate to the executor, individually, and by the devise of the remainder interest to the residuary devisees under Item 16. Clark v. Campbell, 82 N.H. 281, 133 A. 166, 45 A.L.R. 1433; Egleston v. Trust Co. of Ga., 147 Ga. 313, 93 S.E. 878, 3 A.L.R. 295; Fontain v. Ravenell, 17 How. 369, 15 L.Ed. 80; Woodroof v. Hundley, 147 Ala. 287, 39 So. 907; Crim v. Williamson, 180 Ala. 179, 60 So. 293; Parrish v. Gamble, 234 Ala. 220, 174 So. 303; Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493. As the testator in his will did not make a choice of the charity to be appointed by the donee of the power, it does not constitute a valid disposition by the testator. Parrish v. Gamble, supra; Williams v. Pearson, 38 Ala. 299; Tilden v. Green, 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am.St.Rep. 487; People v. Powers, 147 N.Y. 104, 41 N.E. 432, 35 L.R.A. 502; Prichard v. Thompson, 95 N.Y. 76, 47 Am.Rep. 9; Bristol v. Bristol, 53 Conn. 242, 5 A. 687; Olliffee v. Wells, 130 Mass. 221; Nichols v. Allen, 130 Mass. 211, 39 Am.Rep. 445; Adye v. Smith, 44 Conn. 60, 26 Am.Rep. 424; Schmucker's Estate v. Reel, 61 Mo. 592. Testator may not validly give a power of disposition or power of appointment to another, by which the donee in his discretion may choose the object of testator's bounty. Code 1940, Tit. 61, § 24. Except for permissive use given testator individually during the period of ten years, pending sale of property, no estate or interest was vested in him as trustee; and no valid general or beneficial power was vested in him individually or as trustee. Code 1940, Tit. 47, §§ 78, 79, 144, 149; Tit. 61, § 24. No legal title to property was devised to or vested in appellee as executor or trustee. Code, Tit. 47, §§ 79, 144, 145.
Smyer Smyer, of Birmingham, for appellee.
No particular formality is required for creation of a trust, and if from whole instrument creating trust intention is shown that property is to be held, managed or dealt with for benefit of another, equity will declare it a trust; it is not necessary to use the words "upon trustee" or "trustee", if creation of trust is otherwise sufficiently apparent. Cresswell v. Jones, 68 Ala. 420; 1 Perry on Trusts, 7th Ed., § 82; A. L. I. Restatement Trusts Trustees, §§ 23, 24, 6c; 26 R.C.L. 1180; 65 C.J. 508; 1 Bogert on Trusts Trustees, 33; Gurley v. Bushnell, 200 Ala. 408, 76 So. 324; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Anderson v. McGowen, 42 Ala. 280; Perkins v. Lewis, 41 Ala. 649, 94 Am.Dec. 616; Ex parte Dickson, 64 Ala. 188. Where donor designates class of recipients of his charitable bounty, or provides a rule or order for their selection, names the kind of charity and leaves indefinite the ultimate beneficiaries, this is all the certainty the law requires. Sparks v. Woolverton, 210 Ala. 669, 99 So. 102; 14 C.J.S. Charities, § 39, 474; Woodroof v. Hundley, 147 Ala. 287, 39 So. 907; Mayor, etc., of City of Huntsville v. Smith, 137 Ala. 382, 35 So. 120; 2 Bogert on Trusts Trustees, 1117; 10 Am.Jur. 653; 2 Perry on Trusts (7th Ed.) 1211; Johns v. Birmingham T. S. Co., 205 Ala. 535, 88 So. 835. Gift for a charitable use or purpose is not void for uncertainty as to beneficiaries where trustee is empowered to select beneficiaries. 14 C.J.S. Charities, § 40, 477; Tarver v. Weaver, 221 Ala. 663, 130 So. 209; Noble v. First Nat. Bank, 241 Ala. 85, 1 So.2d 289; Gossett v. Swinney, 8 Cir., 53 F.2d 772; Bogert on Trusts Trustees, 1099.
This appeal is from a decree of the Probate Court of Jefferson County, sitting In Equity, wherein the administration of the estate is pending, construing in part the will of John R. Irby, deceased, in response to a bill filed by the appellee Smyer, as the executor of said will, against appellants named in the will, with others as residuary legatees thereunder.
Jurisdiction to entertain such proceedings in equity is conferred on said probate court by the Act approved July 10, 1940, carried into Tit. 62 of the Code 1940, as § 181(1). See 1943 Cumulative Pocket Part, Code 1940. The scope of this jurisdiction was dealt with in Ex parte Kelly (Kelly v. Burns), 243 Ala. 184, 8 So.2d 855; and applied in Heitlenger et al. v. McNallis et al., 243 Ala. 560, 11 So.2d 143.
The immediate controversy here arises over the validity of Item 5 of said will, relating to property owned by the testator at the time of his death, known as Shelby Springs, in Shelby County, Alabama, the character of title of the appellee as executor, the scope of his power of appointment conferred by the will, and his right to allocate to the Medical School of the University of Alabama, upon the agreement of the university to accept the gift on the terms of the trust expressed in the will.
The appellants challenge the power of the executor on the ground, to quote from the answer, "That the attempted devise under Item 5 of said will is void, in that no beneficiary was therein designated, with the certainty the law directs and requires; that the charitable use or class to be benefitted is so indefinite as to be incapable of being executed by judicial decree; that the legal title to the real estate therein described did not vest in the executor, nor did such title vest in any of the institutions therein named; that it was a mere attempt on the part of testator to delegate to his executor the power and authority to make the testator's will for him."
The decree denied this contention, confirming the authority of the executor to appoint the beneficiary donee, and to allocate the proceeds from the sale of the property to the Medical School of the University of Alabama. We are of opinion that this decree is sound, and should be affirmed, for the reasons now to be stated.
Said last will and testament set up a common law testamentary trust to be administered by appellee as executor of said will for certain beneficiaries named in the will, limited to not exceeding ten years from the termination of certain life interests, and vested in the executor the title in fee; and, in the particular here involved, the power to appoint or designate "The educational institution or research institution for the purposes of research as to the cause and cure of arthritis."
The executor is charged with active and continuing duties, not susceptible of fulfillment without possession and dominion over the estate. He is to collect the income; pay the testator's debts; consummate and complete the contract in respect to the mausoleum in Elmwood Cemetery and remove the body of testator's wife to said mausoleum when completed; and the will confers on said executor, "Full power and authority to manage my estate with full rights and powers to sell, lease or otherwise dispose of and convey all property owned by me at the time of my death, and to execute such instruments, contracts and other instruments necessary or proper in the management of my estate," and many other powers, which cannot be executed in the absence of the legal title in the donee of said powers. By the terms of the will, he is not only the donee of the power, but is the repository of the legal title of the property constituting the trust estate. Whorton, Ex'r v. Moragne et al., 62 Ala. 201; Anderson, Collector of Internal Revenue, v. Wilson et al., Ex'rs, 289 U.S. 20, 53 S.Ct. 417, 77 L.Ed. 1004; Ross v. Barclay, 18 Pa. 179, 55 Am.Dec. 616; 21 Am.Jur. p. 775, § 701.
The trust created by the will is not a trust in which the ultimate beneficiaries are to be selected. It is a trust for the purpose of research, educational in its scope and purpose, for the benefit of a class designated by the testator in the will. Coffin v. Attorney General, 231 Mass. 579, 121 N.E. 397; Lord v. Miller, 277 Mass. 276, 178 N.E. 649; King v. Rockwell, 93 N.J. Eq. 46, 115 A. 40.
We are not here vexed with questions arising from a failure of the donee of the power of appointment to exercise such power. This controversy arises out of the exercise of the power by the executor of the trust.
Affirmed.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.