Opinion
No. 30038
Decided July 25, 1945.
Municipal corporations — Support or maintenance of sectarian school not authorized, when — Construction of will — Testator's intention ascertained by giving words usual and ordinary meaning — Court may not permit trustees to deviate front charitable trust terms, when — Deviation from terms to carry out one plan, not permitted — Alternative plan legal and trust purposes fully accomplished.
1. A will which provides for the establishment of a school for education in the arts and sciences, with the teachings of the Holy Bible being made a prominent feature, and that the school shall be Protestant in ethics and teaching, authorizes the creation of a sectarian school.
2. A municipality in Ohio is without authority to issue bonds or to expend funds raised by taxation for the support or maintenance of a sectarian school.
3. In an action to construe a will, the sole function of the court is to ascertain and give effect to the intention of the testator. Such intention must be ascertained from the words used in the will by giving to such words their usual and ordinary meaning.
4. In an action to construe a will wherein a testator has created a charitable trust, the court is without authority to permit the trustees to deviate from the terms of such trust unless it clearly appears that compliance would be illegal, impossible, or would defeat or substantially impair the accomplishment of the purpose of such trust.
5. In an action to construe a will wherein the testator has created a charitable trust and has provided alternate plans for the accomplishment of the purposes thereof, the court is without authority to permit the trustees to deviate from the terms of such trust in order to carry out one plan, where the carrying out of one of the alternative plans would be legal and would fully accomplish the purposes of such trust.
APPEAL from the Court of Appeals of Ashtabula county.
This action had its origin in the Probate Court of Ashtabula county. The petition was filed by Walter T. Findley and H.G. Kingdom, substituted trustees under item X of the will of George J. Record, deceased, against the city of Conneaut, Ohio, and the village of Geneva, Ohio, praying for the construction of item X and for a declaratory judgment.
Item X of such will, as alleged in the petition reads as follows:
"It has been my intention for many years, should my means prove to be sufficient, to establish a polytechnic industrial school to the Glory of God, the Creator of all materials and substances, the central Power and Originator of all energies and forces and the Founder of all arts and sciences, to the end that man can be instructed and enabled to divine and make use of the materials and apply the forces God has created and that thereby his comprehension may be widened to a full appreciation and understanding of the unlimited preparations and provisions with which his Creater has blessed and surrounded him.
"I am not in sympathy with theoretical religion. Solid facts innumerable are at hand and visible in all directions to be relied upon in formulating the faith and shaping the character, purposes and destinies of man, providing that these truths are properly brought home to man's understanding. To teach the young these facts, to enable their purposes, to widen their comprehension of the real meaning of life, to give them a knowledge of their relations to God while learning the arts and sciences of which He is the Author, thus fitting them to meet the world's demands, making them honest in purpose, noble in aspiration, reverent in faith, is the end which I have in view and desire to attain in making the devise set forth in this item of this my last will and testament.
"Therefore I hereby give, devise and bequeath all the remainder of said residue of my said estate left after all the foregoing provisions of this my last will and testament have been fully carried out, to The Guardian Savings Trust Company, of Cleveland, Ohio, and to its successors, in trust, nevertheless, for the purpose of establishing a polytechnic industrial school as hereinafter provided.
"Said school shall provide practical education for students of both sexes in the useful arts and sciences and in connection therewith the teachings of the Holy Bible shall be made a prominent feature in bringing to the minds of the young the practical value of following its precepts in the attainment of success in every day life. Said school shall be Protestant in ethics and teaching, but otherwise undenominational and shall not exclude from its benefits those of any other faith. It shall be the rule of the school that all students, teachers and officers shall observe the Sabbath Day and attend Sunday school and preaching services and that each session shall be opened with scripture reading from the Bible and with prayer, and all students shall, as a condition to their admission to said school, pledge themselves to faithfully keep and observe these conditions which shall be rules of said school as well as all other rules consistent herewith which may be formulated for the government of said school.
"My said trustee shall first offer said remainder of said residue of my said estate to the corporate city of Conneaut, Ohio, to be used in the establishment of said school, on condition that said city shall provide therefor, free of cost to my estate, a suitable and ample site for said school, centrally located, and by the issuance of five (5) per cent bonds provide a sinking fund of one hundred thousand ($100,000) dollars to be forever maintained to provide income for the support and maintenance of said school, or otherwise secure to said school such fund as will at all times provide said school with an income of five thousand dollars ($5,000) per annum. If the foregoing mentioned proposition is not accepted within one year from the date of said offer, then my said trustee shall make the same offer to the village of Geneva, in Ashtabula county, Ohio, and if not accepted by said village within one year from the date of said offer, or if there be legal obstacles in the way of both said city of Conneaut and said village of Geneva accepting said legacy for the uses and purposes aforesaid, then and in that event my said trustee may by forming a corporation or by other lawful means in its discretion to be determined by it, proceed to and complete the organization of said polytechnic industrial school, or if it elects so to do, may transfer and deliver over the remainder of said residue of my said estate to some industrial school then well established, to be selected by it for the purpose of carrying out the principles and objects hereinbefore named.
"The school if established either in Conneaut, Ohio, or Geneva, Ohio, shall be known as the 'Record Industrial School' and if said remainder is given to an industrial school already established, it shall be known as the 'Record Memorial Industrial Fund' and the department to which it is applied shall be known as the 'Record Memorial Industrial Department' and shall be operated upon the basis and fundamental ideas and to the ultimate aim and purpose hereinbefore expressed."
It is further alleged in the petition that on July 11, 1938, the trustees offered the gift to the city of Conneaut, Ohio, which received the offer and within one year from that date failed and neglected to accept such offer; that thereafter on July 24, 1939, the fund was offered to the village of Geneva and was by ordinance accepted by it in accordance with the terms and conditions of item X; that the village did not within one year after the offer comply with the terms and conditions prescribed therein; and that thereafter the trustees notified the village that it had failed and neglected to comply with such conditions.
The prayer is that the court construe item X of the will and enter its declaratory judgment upon six specific questions.
The city of Conneaut filed no answer or other pleading. The village of Geneva, Ohio, filed an answer claiming in substance that the gift provided for by item X of the last will and testament was offered to and accepted by it, and praying that the court find that the village had qualified and accepted the gift, and that the trustees be ordered to transfer, convey and deliver to it the property belonging to the trust fund.
Under the appropriate provision of the General Code (Section 340) the Attorney General of Ohio filed an intervening petition praying that the court protect the gift as a charitable trust.
The plaintiffs filed a reply in which it was denied that the defendant village had qualified to receive the gift.
The cause was submitted to the Probate Court upon the pleadings, a stipulation of fact and the evidence. That court entered a decree from which the village of Geneva filed an appeal to the Court of Appeals on questions of law and fact.
The Court of Appeals heard the cause upon the transcript of the docket and journal entries, the original papers, the pleadings and the evidence, and made the following findings:
"That the city of Conneaut did not within one year accept the offer by the trustees in accordance with the provisions of said will: That the city has made no claim to or upon the fund, and therefore has no interest therein.
"That the village of Geneva by the passage of its ordinance No. 771 on June 10, 1940, did formally accept the provisions of item X of the George J. Record will, including all conditions enumerated therein, but that the trustees have no right or authority to turn over to the village of Geneva any portion of the trust fund until compliance by the village of all the conditions of said item X, and the court finds that the village of Geneva was not required to comply with all the requirements of item X within one year from the date of the trustee's offer, but should have a reasonable time thereafter within which to fully comply, which reasonable time has been determined by this court to be six months from the date of the filing of this journal entry.
"The court further finds that a private polytechnic industrial school in which the teachings of the Protestant religion is to be a prominent feature was intended by the testator, thereby creating a sectarian institution, wherefore the raising of maintenance funds by tax levy upon the property of residents of the village of Geneva would be as a matter of law, contrary to, and in violation of, Section 7 of Article I, and Section 2 of Article VI of the Constitution of Ohio.
"The court finds that notwithstanding, the Record fund has been augmented through the years until it now approaches one million dollars, that no part of this fund may be used or invested for the purpose of producing the maintenance fund required by the testator to be raised by the village of Geneva, and that augmentation of the fund is no reason why the imposed conditions of the will should be relinquished or deviated from by the trustees or by order of the court.
"The court further finds that the testator designated the conditions under which the fund should be made available to the village of Geneva; that he had a right to so designate and that the village of Geneva to acquire said fund must comply with all the conditions imposed, without variance or deviation therefrom before it is entitled to the fund."
The court then made the following order:
"It is therefore ordered, adjudged and decreed that unless the village of Geneva shall within six months from the date of this decree comply with the terms and conditions of item X of said will, then and in that event all of the rights of the village of Geneva to said fund shall at the expiration of said six months period, terminate and the trustees then shall be and hereby are authorized to proceed under one of the alternate plans suggested in item X of said will."
The cause is in this court for review following the allowance of a motion to certify the record.
Mr. J.E. Helman, Mr. George D. Kingdom and Mr. Stephen F. Perry, for appellees.
Mr. James W. Simmons, village solicitor, Mr. Howard M. Nazor and Mr. Paul E. Kightlinger, for appellant.
At the outset we deem it both pertinent and proper to say that, in cases involving the construction of wills, the sole function of the court is to ascertain and give effect to the intention of the testator. Such intention must be ascertained from the words employed in the will by giving to such words their usual and ordinary meaning. See Townsend's Exrs. v. Townsend, 25 Ohio St. 477. It is not the function or the province of a court to make a new and different will for a testator under the guise of construing the will made by him.
We are dealing here with a charitable trust. Where charitable trusts have been involved, this court, for the better part of a century, has applied liberal rules of construction. In some cases, under proper circumstances, the doctrine of deviation has been applied; in other cases, where the facts and circumstances warranted, the doctrine of cy pres has been invoked. However, the doctrine of deviation or of cy pres has been applied only in cases where exact compliance with the provisions of the will would defeat or substantially impair the accomplishment of the purposes of the trust. See Trustees of McIntire Poor School v. Zanesville Canal Mfg. Co., 9 Ohio, 203, 34 Am. Dec., 436; McIntire's Admrs. v. City of Zanesville, 17 Ohio St. 352; Zanesville Canal Mfg. Co. v. City of Zanesville, 20 Ohio, 483; Mannix, Assignee, v. Purcell, 46 Ohio St. 102, 19 N.E. 572, 15 Am. St. Rep., 562, 2 L.R.A., 753; Winder et al., Exrs., v. Scholey et al., Trustees, 83 Ohio St. 204, 93 N.E. 1098, 33 L.R.A. (N.S.), 995; Palmer v. Oiler, Exrx., 102 Ohio St. 271, 277, 131 N.E. 362; and Gearhart v. Richardson, 109 Ohio St. 418, 142 N.E. 890. Neither of these doctrines has application to a situation wherein the settlor has provided alternate plans to carry out the purposes of the charitable trust, at least one of which is legal and possible of performance. See 5 Ruling Case Law, 347 and 365.
With these observations in mind we proceed to the specific questions upon which the Probate Court was asked to make declaration.
Question one. "Did the corporate city of Conneaut, Ohio, or the corporate village of Geneva, Ohio, have any lawful authority to issue bonds or expend funds raised by taxation, for the support of such a school as is provided for in said will?"
The answer to that question depends upon whether the testator intended to provide for the establishment of a sectarian or nonsectarian school.
The language used by the testator upon the subject of the kind of school to be established is as follows:
"Said school shall provide practical education for students of both sexes in the useful arts and sciences and in connection therewith the teachings of the Holy Bible shall be made a prominent feature in bringing to the minds of the young the practical value of following its precepts in the attainment of success in every day life. Said school shall be Protestant in ethics and teaching, but otherwise undenominational and shall not exclude from its benefits those of any other faith. It shall be the rule of the school that all students, teachers and officers shall observe the Sabbath Day and attend Sunday school and preaching services and that each session shall be opened with scripture reading from the Bible and with prayer, and all students shall, as a condition to their admission to said school, pledge themselves to faithfully keep and observe these conditions which shall be rules of said school as well as all other rules consistent herewith which may be formulated for the government of said school." (Emphasis supplied.)
Construing those words in their ordinary sense it would seem uncontrovertible that the testator intended that a Protestant school should be established, but that no person of any other faith should be excluded from attendance so long as such person pledged himself or herself to abide by the conditions prescribed in item X, which were to become a part of the rules of the school.
Both the Probate Court and the Court of Appeals concluded, as we conclude, that the testator intended to establish a sectarian school.
Our next step is to consider whether a municipality in Ohio has authority to issue bonds or expend funds raised by taxation to help support a sectarian school.
Section 7, Article I of the Constitution reads as follows:
"All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. No religious test shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction."
Under the above-quoted section of the Constitution, as construed by this court, a municipality is without authority to issue bonds or expend funds raised by taxation for the support or maintenance of a sectarian school. The provision as to the issuance of bonds by the municipality which accepted the gift was impossible of performance under the law.
Question two. "What, if any, interest or right has the corporate city of Conneaut, Ohio, in said fund, at this time?"
On July 11, 1938, the trustees offered the gift, provided for in item X, to the city of Conneaut, Ohio. On that same date the city acknowledged receipt of the offer. The city failed to accept the gift or to perform the conditions to entitle it to the fund. The city now makes no claim to this gift. The city of Conneaut has no right or interest in the fund.
Questions three, four and five will be considered together.
Question three. "What, if any, right or interest has the corporate village of Geneva, Ohio, in said fund at this time?"
Question four. "Did the passage of ordinance No. 771 by the council of the village of Geneva, Ohio, constitute compliance with the terms and conditions of the will of said testator?"
Question five. "Was the village of Geneva, Ohio, required to comply with all of the provisions of said will before July 24th 1940?"
On July 24, 1939, the gift was offered by the trustees to the village of Geneva, Ohio, and on the same day the village by resolution acknowledged receipt of and accepted the offer. On June 10, 1940, the village passed an ordinance accepting the gift.
Reverting to item X, it is provided therein that the village must accept the offer within one year after receipt thereof. This has been done. It is further provided that the fund is "to be used in the establishment of said school, on condition that said city [village] shall provide therefor, free of cost to my estate, a suitable and ample site for said school, centrally located, and by the issuance of five (5) per cent bonds provide a sinking fund of one hundred thousand ($100,000) dollars to be forever maintained to provide income for the support and maintenance of said school, or otherwise secure to said school such fund as will at all times provide said school with an income of five thousand dollars ($5,000) per annum."
The above-quoted language creates two conditions precedent to the right of the village to receive the gift. In other words, before the trustees are authorized to deliver the gift to the village it must be able to show to the satisfaction of the court that it has provided an ample, centrally located site for such school in the village, and further that it has secured a fund which will at all times provide the school with an income of $5,000 per annum. The record discloses that the board of education of the village of Geneva, Ohio, on October 30, 1941, conveyed to the village of Geneva, a tract of ground for use as a building site for the Record Polytechnic School.
Appellees claim that the village, having failed to comply with the prescribed conditions within one year from the date of the offer, has no right or interest in such fund.
With that contention we do not agree. As we construe the language of the testator upon that subject, it means that at any time within one year from the date of the offer the village could accept the proposition.
It seems quite obvious that if the village did not accept the gift, then it was under no duty to comply with the conditions. However, if it did accept the offer, no time being fixed for compliance by the testator, we think, as the Court of Appeals thought, that the village should have a reasonable time thereafter to acquire the site and raise the funds necessary to entitle it to the testator's gift.
The record discloses that the residue of the testator's estate at the time of his death, designated for the establishment of the school, was about a quarter of a million dollars and that at the time of the trial was about nine hundred thousand dollars. By reason of that fact appellant contends that under the doctrine of deviation the court should direct that the augmented portion of the fund be used for the purpose of maintenance, in lieu of the $5,000 per annum income which the village was to provide.
It has been pointed out that the doctrine of deviation is applied only to prevent failure of the purpose of a charitable trust.
In 2 Restatement of Trusts, 1176, Section 381, the rule as to deviation is stated thus:
"The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust." (Emphasis supplied.)
The fact that the village of Geneva may never qualify to receive this gift will in no way defeat or substantially impair the accomplishment of the purpose of the trust. The testator has provided two alternate plans and under either of which the purposes of the trust can be fully accomplished.
We conclude that the testator had the right to prescribe conditions precedent to the taking effect of the gift; that the village of Geneva, Ohio, has no right to or interest in the fund until it complies with those conditions; that the passage of the ordinance of acceptance did not constitute compliance with those conditions; and that the village was not required to comply with all the terms and conditions within one year after it received the offer of the gift.
Upon the remaining question as to what is a reasonable time in which the village should be required to comply with the terms and conditions prescribed in item X of the will, we think that the period of one year from the entry of the decree herein is a reasonable time and that unless the village does comply within that time its right to receive the gift should be forever barred.
Question six. "Are said trustees now empowered by the provisions of item X to proceed with the execution of the trust therein created?"
In view of our conclusions, the trustees are not empowered at this time to proceed with either of the alternate plans provided by the will.
It follows that the Court of Appeals did not err in its conclusions and its judgment should be modified and hereby is affirmed as modified.
Judgment modified and affirmed as modified.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.