Barnum v. Mayor of Baltimore

Alvey, O. J., delivered the opinion of the Court. The bill in this case was filed by Samuel H. Tagart, executor and trustee appointed by the will of Zenus Barnum, deceased, for the purpose of having the rights of parties declared in respect to a large portion of the estate of the deceased, which is claimed by his heirs-at-law and next of kin as against the disposition thereof made by the will. The disposition of the property as made by the will was sustained by the decree of the Court below, and the heirs-at-law and next of kin of the testator have appealed. The testator died on the 23rd of March, 1882, having made his will in due form, which was soon after his death admitted to probate.

He left surviving him, as his only heirs-at-law and next of kin, two brothers and two sisters, one of the brothers being Frank Barnum, upon whose election the principal question in this case has arisen. The estate has been settled by the executor, and the question now is, upon the events that have happened, who is entitled to the estate. The testator, by his will, devised and bequeathed in trust to his friend, Samuel H. Tagart, and to his successors in the trust, the entire estate, real and personal, of which he died seized and possessed; and after declaring certain uses, and investing the trustee with certain powers, he ²⁸⁸ proceeded to declare the principal trust of his will, in regard to the property now in controversy, in the following terms: “In the second place, in trust, as to all the restand residue of my estate, to appropriate and apply the net income thereof, as follows: “If, within twelve months after my decease, my brother, Frank Barnum, shall withdraw from the priesthood in the Roman Catholic Church, (should he be at the time of my death a priest in said church,) and from any and every order or society connected with said church, of which he may be a member, and until he shall become a priest or deacon in said church, or shall connect himself with some order or society of said church, or until the income of said property, or some part thereof, shall he sought to be subjected to the payment of his debts or liabilities by legal process,-1 direct that the net income of said rest and residue of my estate, he paid to the said Frank Barnum in every year, in such instalments as the said trustee, or his successor or successors, may deem best, for and during the term of the natural life of the said Frank Barnum. “ But if within twelve months after the time of my death, my brother shall not have withdrawn from the priesthood aforesaid, (should he be at the time of my death a priest in said church,) and from any and every order or society of which he maybe a member, connected with said church, or if he shall at any time hereafter become a priest or deacon in said church, or become a member of any order or society of said church, or if said income, or any part thereof, shall he sought to be subjected by legal process to the payment of his debts or liabilities, and he shall be without wife or children, or if he shall die without leaving a child or children living at the time of his death, who shall attain the age of twenty-one years, then (subject to the life estate or estate for widowhood aforesaid .in one- ²⁸⁹ third thereof), I give, devise and bequeath the said rest and residue of my estate to the Mayor and City Council of Baltimore, in trust, for the McDonogh Educational Fund ■and Institute, to he applied to establishing a chair therein, to be called the ‘Zenus Barnum Chair,’ to promulgate ■such a course of instruction in said institute as will aid in the practical application of the Mechanical Arts — the said estate and property to be held under the same control •and direction as the estate and property now held by said fund and institute, and to be so appropriated and applied •as to give boys in that institution such useful and practical mechanical education as will enable them to gain a livelihood by skilful manual labor — the surplus income, after the payment of the professor, to be applied to the erection of necessary buildings, and furnishing needed tools and the like for the above mentioned purposes.” It is conceded that at the time of the testator’s death, his brother, Frank Barnum, was not a priest or deacon in, nor a member of, or connected with, any order of society •of the Roman Catholic Church; but that on the 31st of •July, 1882, he became a member of, and connected himself with, an order or society of that Church, and he has remained so connected ever since. He was unmarried and without issue at the time of the death of the testator, and has so remained to the present time.

It also appears that -after the present bill was filed, an attachment was sued out against Frank Barnum, on a judgment against him, and laid in the hands of Tagart, the trustee, to affect the interest under the will. That proceeding is still pending. It is agreed that the only fund held by the Mayor and City Council of Baltimore, derived from the estate of ■John McDonogh, at the date of the will of Zenus Barnum, the testator, is the sum of $650,000, and that the only object or purpose to which any portion of that sum was or has been applied, is to the establishment, maintenance and support of the “ School Farm ” in Baltimore County, ²⁹⁰ known as the “ McDonogh Institute.” It is admitted that such School Farm was established about the year 1872, and that it has been ever since in operation. It is admitted that several professors are employed, and many hoys are taught therein; and that there is no other school or institute in this State known as the “McDonogh Institute.” This, school or institute was established and has been maintained by the funds alone which were received by the Mayor and City Council under the will of John McDonogh;. and its establishment, and the government thereof, have been under and in pursuance of ordinances and resolutions, of the Mayor and City Council by an agency styled “ The Board of Trustees of the McDonogh Educational Fund and Institute,” created by ordinance.

For a full history of the origin, objects and purposes,, terms and conditions of the McDonogh school or educational fund bequeathed to the City of Baltimore, and of the “School Farm” directed by the will of McDonogh to he founded by the city, reference may he made to the case-of McDonogh vs. Murdock, 15 How., 367 , where all the facts appear, and the rights of the city uuder the will of' McDonogh were declared and established. It appears from the answers of the appellants, and the opinion of the learned Judge below, that several questions were raised in the Circuit Court, upon the construction of' the will of Barnum, that have not been discussed by counsel in this Court. The proposition, or rather suggestion, made in the answers of the appellants, that as Frank Barnum was not a priest, deacon, or member of any order or society, connected with the Roman Catholic Church, at the time of the death of his brother, he therefore took no-interest or estate under the will, has no support in any principle of fair construction; and the learned Judge below was quite right in holding that Frank Barnum took the equitable estate, and became entitled to the income thereof, from the death of the testator to the time of his. ²⁹¹ becoming a member of tbe order or society connected with tbe church. And so in regard to the question of its being against ■ public policy to make the devise or bequest dependent upon the condition that the devisee or legatee should withdraw from the priesthood or membership of any order or society connected with the church, or refrain from forming any such connection, the authorities leave no room to question the right of the testator to prescribe such condition.

Whatever may be thought of the opinions of the testator, or his prejudices, the law recognizes his right to make the enjoyment of his bounty dependent upon the condition attached in this case. Mitchell vs. Mitchell, 18 Md., 405 ; Vidal vs. Girard, 2 How., 127, 199 ; Dickson, Ex parte, 1 Sim., (N. S.,) 37. The principal question involved in the case is, whether, upon the determination of the estate of Frank Barnum, the limitation over of the trust estate to the Mayor and City Council of Baltimore, for the purposes mentioned, be valid, and of a nature to be executed in accordance with the intention of the testator. That question has been most fully and ably argued by counsel at the bar, and with the assistance derived from such discussion, we have been enabled to come to a definite conclusion as to the rights of the parties under the will.

On the part of the heirs-at-law and next of kin of the deceased, it has been strongly contended that the limitation over to the Mayor and City Council in trust is void, because of the want of power in the municipal corporation to accept and hold the trust created by the will, and because of the undefined and uncertain object of the trust, or rather its non legal entity, and the consequent impossibility to enforce the execution of that trust, according to the plan of the testator. And the familiar cases of Dashiell vs. Atty. Genl., 5 H. & J., 392 ; Wilderman vs. M. & C. C. Balto., 8 Md., 551 ; Needles vs. Martin, 33 Md., 609 ; Church Extension, &c. vs. Smith, 56 Md., 362 , and Rizer ²⁹² vs. Perry, 58 Md., 112 , have heen relied upon and enforced upon us as being entirely conclusive of the proposition sought to be maintained. But this Courtis of opinion that the cases relied on do not, by any means, conclude the question presented in this case.

Those cases are quite distinguishable from this in many respects; and while it is true that the Statute of 43 Elizabeth, ch. 4, in regard to charities and charitable donations, has never heen adopted in this State, it does not follow that charitable bequests or donations, such as that designed by the testator in the will before us, may not be sustained, altogether apart from and independent of the provisions of that Statute. If there he parties capable of taking the subject-matter of the trust, and objects legal and definite, to he subserved or benefited by its execution, so that a Court of equity may take cognizance of and enforce the trust, these are the essentials, and only essentials, to the validity of the trust, though the object of the trust he in its nature charitable. In cases where these essential elements of certainty exist, there is no greater difficulty in the exercise of the supervisory power of a Court of Chancery over a trust for charity than there is in the exercise of such power over trusts of any other nature. The Court of Chancery in such cases only exercises its original inherent jurisdiction over trusts.

In respect to trusts for charity, irrespective of the provisions of the Statute of 43 Elizabeth, ch. 4, the question that most frequently arises, and the one that has given the greatest difficulty is, whether the objects intended to be benefited or promoted are sufficiently certain and definite to enable the Court to declare who are entitled, to the exclusion of all others, and to secure to them the benefit of the trust. In the cases relied on by the appellants, the donations failed because of the uncertain and indefinite character of the objects of the charities intended to he established. In this case, the first question to he determined is, whether the municipal corporation of the City of Baltimore ²⁹³ is capable of taking devises and bequests of real and personal estate for tbe objects and purposes mentioned in tbe will; and the second, whether these uses are charitable uses, valid in their nature, and sufficiently certain and definite to be carried into execution, and enforced by a Court of equity. 1. With respect to the first question, the original charter of Baltimore City, granted by the Legislature in 1796, ch. 68, invested the corporation with power to “ purchase and hold real, personal and mixed property, or dispose of the same, for the benefit of the said city; ” and this power the corporation still holds.

Code Pub. L. L., Art. 4, sec. 1. Whether this power enabled the corporation to take real and personal property in trust, it is unnecessary to decide in this case ; though, according to the great weight of authority, it would seem to be entirely capable of taking property in trust, for purposes germane to the objects of the corporation, or which would promote, aid or assist in carrying out or perfecting those objects. 2 Kent Com. 280; 2 Dill. Mun.

Corp. (3rd Ed.), sec. 567, and cases there cited; Vidal vs. Girard, 2 How., 127; McDonogh vs. Murdock, 15 How., 367 ; Perine vs. Carey, 24