Page images
PDF
EPUB

pulse. But such statutes impose only the restrictions stated; they do not compel a testator to give his property to his kindred nor deprive him of the right to give all his estate to charity during his life.46

It is recognized that one in fear of death, although he may never have exhibited charitable impulses, may suddenly desire to atone for the past and become an easy prey for some designing promoter of a charitable or religious institution who, by playing upon the fears of the testator, may cause him to temporarily lose thought of wife, child or dependents. Limiting the amount which can be devoted to charity also allows the testator the unembarrassed disposition of the remainder and forces the testator to consider, in disposing of his property, the relative claims of those of kindred and charity.1

§ 1120. How Value of Estate Is Computed.

Where a testator may give only a certain percentage of his estate to charity, in computing the amount the value of the estate is taken as of the date of testator's death.48 Where the estate is subject to a life interest in another which has not terminated, it is proper to determine the value of the life estate by reference to standard mortality tables.49 In determining the amount, the whole estate is treated as converted into money at the testator's Stevens, 161 N. Y. 122, 55 N. E. 568.

46 Jones v. Habersham, 107 U. S. 174, 27 L. Ed. 401, 2 Sup. Ct. 336; Estate of Hinckley, 58 Cal. 457; Estate of Dwyer, 159 Cal. 680, 687, 115 Pac. 242; In re Ihmes' Estate, 154 Iowa 20, 134 N. W. 429; Estate of Beck, 44 Mont. 561, 121 Pac. 784, 1057; Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568. 47 Parker,

C. J., in Allen v.

48 Frost v. Emanuel, 152 App. Div. 687, 137 N. Y. Supp. 559; Estate of Colburn, 157 N. Y. Supp. 676.

49 Frost v. Emanuel, 152 App. Div. 687, 137 N. Y. Supp. 559; Hollis v. Drew Theological Seminary, 95 N. Y. 166.

death, and if the money value of the charitable gift exceeds the prescribed portion allowed by law to be given, the statute has been violated.50

The value of the estate is what remains after the payment of the debts of the decedent. As to whether the charges and expenses of administration should also be deducted, there is a conflict of authority. In California the percentage is based on the distributable assets after the administrative expenses have been paid,51 while in New York the rule is to the contrary.52

§ 1121. Charity, in a Legal Sense, Defined.

Charity, in its widest sense, denotes all the good affections men should bear toward each other. In its most restricted sense it refers to relief of the poor. In neither of these senses is it employed in the courts of chancery. Its signification is derived chiefly from the statute of Elizabeth, those purposes being charitable which are enumerated in the statute, or which by analogy are deemed within its spirit and intendment.54 It is clear, however, that a charity or a charitable use, if not prohibited by statute or public policy, may be applied to almost anything which tends to promote the well doing and well being of mankind, and liberality and benevolence can find numerous objects not included within the stat

50 Hollis v. Drew Theological Seminary, 95 N. Y. 166, 178.

51 Estate of Hinckley, 58 Cal. 457, 516; Estate of Pearsons, 98 Cal. 603, 611, 33 Pac. 451.

52 Estate of Colburn, 157 N. Y. Supp. 676.

53 Statute of 43 Eliz., ch. 4. 54 Magill V. Brown, Brightly (Pa.) 347, referred to in Ould v. Washington Hospital for Foundlings, 96 U. S. 303, 24 L. Ed. 450.

ute.55 In legal contemplation, "charity" and "charitable use" are held to be convertible terms.5 56

A charity, in a legal sense, is a gift to be applied according to existing laws for the benefit of an indefinite number of persons, either to improve them mentally or morally by bringing them under the influence of education or religion, or by relieving their bodies from suffering or disease, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of mankind. It is immaterial whether the purposes be called charitable or not, if they are charitable in their nature. A charity

55 Morice v. Bishop of Durham, 9 Ves. Jun. 399, 32 Eng. Reprint 656; affirmed in 10 Ves. 522; Ould v. Washington Hospital for Foundlings, 95 U. S. 303, 24 L. Ed. 450; Hamden v. Rice, 24 Conn. 350; Taylor v Keep, 2 Ill. App. 368; Maine Baptist Missionary Convention v. Portland, 65 Me. 92; State v. Addison, 2 S. C. 499; State v. Board of Comrs. Laramie Co., 8 Wyo. 104, 55 Pac. 451.

56 Owens v. M. E. Church Missionary Soc., 14 N. Y. 380, 67 Am. Dec. 160.

57 McDonald v Shaw, 81 Ark. 235, 98 S. W. 952; New Castle Common v. Megginson, 1 Boyce (24 Del.) 361, Ann. Cas. 1914A, 1207, 77 Atl. 565; Crerar v. Williams, 145 Ill. 625, 21 L. R. A. 454, 34 N. E. 467; Estate of Graves, 242 III. 23, 134 Am. St. Rep. 302, 17 Ann. Cas. 137, 24 L. R. A. (N. S.) 283, 89 N. E. 672; Jackson v. Phillips, 14 Allen (96 Mass.) 539, 556.

Mr. Binney, in his argument in

[ocr errors]

the Girard Will case, thus defined charity: "Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sense-given from these motives and to these ends, free from the stain or taint of every consideration that is personal, private or selfish." This definition is cited in a number of cases.-Ould v. Washington Hospital for Foundlings, 95 U. S. 303, 24 L. Ed. 450; Garrison v. Little, 75 Ill. App. 402.

A devise "solely for benevolent purposes," leaving it to the discretion of the trustee how the proceeds shall be applied, has been held not to be a charitable gift, and void.-Williams v. Ker shaw, 5 Cl. & F. 111; Adye v. Smith, 44 Conn. 60, 26 Am. Rep. 424; Chamberlain v. Stearns, 111 Mass. 267; Norris v. Thomson's Exrs., 19 N. J. Eq. 307, 20 N. J. Eq. 489.

But the word "benevolent," when coupled with "charitable" or used in such connection as to indicate

has been defined as "a gift to promote the welfare of others."58 It is understood to refer to something done or given for the benefit of fellowmen or of the public.59 In a legal sense, charity is not confined merely to the relief of poverty and distress, but has a wider significance which embraces the improvement and promotion of the happiness of man.60

Charity, in a legal sense, has reference to what might commonly be designated as a public charity, as distinguished from a private charity. To give it "the character of a public charity, there must be some benefit conferred upon or duty to be performed toward, either the public at large or some large part thereof, or an indefinite number of persons." The definition of a public charity has been steadily broadened, and it has been said that "whatever is gratuitously done or given in relief of

an intention that it be understood as equivalent to "charitable," may have effect according to intention. -Hill v. Burns, 2 Wils. & S. 80; Miller v. Rowan, 5 Cl. & F. 99; Crichton v. Grierson, 3 Bligh N. S. 424; Rotch v. Emerson, 105 Mass. 431, 434; Chamberlain v. Stearns, 111 Mass. 267; Saltonstall v. Sanders, 11 Allen (93 Mass.) 446.

58 Philadelphia v. Masonic Home of Penn., 160 Pa. St. 572, 40 Am. St. Rep. 736, 23 L. R. A. 545, 28 Atl. 954.

59 Knight's Estate, 159 Pa. St. 500, 28 Atl. 303.

60 New England Sanitarium v. Stoneham, 205 Mass. 335, 91 N. E. 385; Little v. Newburyport, 210

61

Mass. 414, Ann. Cas. 1912D, 425, 96
N. E. 1032.

61 Erskine v. Whitehead, 84 Ind. 357; Everett v. Carr, 59 Me. 325; Saltonstall v. Sanders, 11 Allen (93 Mass.) 446; Going v. Emery, 16 Pick. (33 Mass.) 107, 26 Am. Dec. 645; Old South Society v. Crocker, 119 Mass. 1, 20 Am. Rep. 299.

See § 1113.

A public charity has been defined as a gift to the general public which extends to the poor as well as the rich.-Jones v. Williams, Ambl. 652; State v. Board of Commissioners of Laramie Co., 8 Wyo. 104, 55 Pac. 451.

the public burdens or for the advancement of the public good, is a public charity.'

9962

§ 1122. Objects Construed as Not Charitable.

66

A court of chancery can not see to the execution of a private charity;63 as, for example, a gift to found a private museum,64 or in aid of a subscription library,65 or of a friendly society, or for the benefit of an orphan school kept by an individual substantially at his own expense. A gift to a society for benevolent work among its members only is not a public charity,68 nor for keeping a graveyard and monument in repair,69 nor to build a monument, tomb, or vault, for the donor.70 A fund to maintain a brass band to march to the testator's grave on holidays and other occasions is not for a charitable use, and void as creating a perpetuity."1

62 Episcopal Academy v. Philadelphia, 150 Pa. St. 565, 25 Atl. 55.

A public charity has also been defined as "any gift not inconsistent with existing laws, which is promotive of science or tends to the education, enlightenment, benefit, or amelioration of the condition of mankind, or the diffusion of useful knowledge, or is for the public convenience.". Missouri Historical Soc. v. Academy of Science, 94 Mo. 459, 8 S. W. 346; Buchanan v. Kennard, 234 Mo. 117, Ann. Cas. 1912D, 50, 37 L. R. A. (N. S.) 993, 136 S. W. 415.

63 Nash v. Morley, 5 Beav. 177; Ommanney v. Butcher, Turn. & R.

260.

64 Thompson V. Shakespeare, Johns. 612.

71

65 Carne v. Long, 29 Law J. Ch. 503.

66 In re Clark's Trust, L. R. 1 Ch. Div. 497; In re Dutton, L. R. 4 Ex. Div. 54.

67 Clark v. Taylor, 1 Drew. 642. 68 Beaumont v. Meredith, 3 Ves. & B. 180; Babb v. Reed, 5 Rawle (Pa.) 151, 28 Am. Dec. 650; Swift's Exrs. v. Beneficial Soc., 73 Pa. St. 362.

69 Fite v. Beasley, 12 Lea (80 Tenn.) 328.

Compare: Detwiller v. Hartman, 37 N. J. Eq. 347.

70 Hoare v. Osborne, L. R. 1 Eq. 585; Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305. See, also, Adnam v. Cole, 6 Beav. 353.

71 Detwiller v. Hartman, 37 N. J. Eq. 347.

« PreviousContinue »