Ould v. Washington Hospital for Foundlings

ERROR to the Supreme Court of the District of Columbia.

This is an action of ejectment by the plaintiffs in error, who were plaintiffs below, to recover fourteen lots of ground, being part of square numbered two hundred and seven in the city of Washington. The defendant pleaded not guilty. The case was tried upon the following agreed statement of facts:--

The defendant, the Washington Hospital for Foundlings, admits,--

First, That Joshua Peirce, late of the District of Columbia, died on the eleventh day of April, 1869.

Second, That he died seised of the real estate set forth and described in the plaintiffs' declaration.

Third, That the plaintiffs, Elizabeth C. Ould, Elizabeth C. Beardsley, Samuel Simonton, Abnor P. Simonton, David S. Simonton, John E. Simonton, Hannah P. Jackson, Eliza F. Tibbetts, Abner C. P. Shoemaker, and Peirce Shoemaker, are the heirs-at-law, and the only heirs-at-law, of said Peirce.

The plaintiffs admit,-

First, That said Peirce, on the fifteenth day of October, 1867, duly executed his last will and testament, commencing as follows:--

'I, Joshua Peirce, of the county of Washington, in the District of Columbia, do make this my last will and testament in manner and form following.'That following this is a revocation of other wills, then a provision for the payment of debts, then several specific devises, and then the fourteenth item, in the following words:--

'Fourteenth, I give, devise, and bequeath all those fourteen certain lots or pieces of ground, part of square numbered two hundred and seven, situate between R and § Streets north and Fourteenth and Fifteenth Streets west, in the said city of Washington, in the District of Columbia; which lots are numbered from number twenty-four to number thirty-seven, inclusive, on a certain plan of subdivision of the said square, registered and recorded in the surveyor's office for the said city, in liber W F, folio 211, and are situate on the east side of the said Fifteenth Street, at the distance of one hundred and sixty feet northward from the north side of the said R Street north, containing together in front on the said Fifteenth Street west one hundred and thirty feet, and in depth eastward between parallel lines two hundred and ninety-four feet and a half inch, more or less, to Johnson Avenue (including in the said depth a twenty-feet-wide alley, laid out through the middle of the said lots), to my friends, William M. Shuster and William H. Clagett, both of the said city of Washington, and the survivor of them, an the heirs, executors, administrators, and assigns of such survivor, in trust, nevertheless, and to, for, and upon the uses, intents, and purposes following, that is to say: In trust to hold the said fourteen lots of ground with the appurtenances as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of Congress as and for such hospital, and upon such incorporation upon further trust to grant and convey the said lots of ground and trust-estate to the corporation or institution so incorporated for the said purpose of the erection of a hospital, which conveyance shall be absolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trustees, or the survivor of them, or their successors in the trust; and, if not so approved, then upon further trust to hold the said lots and trust-estate for the same purpose, until a corporation shall be so created by act of Congress, which shall meet the approval of the said trustees, or the survivor or successors of them, to whom full discretion is given in this behalf; and, upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and, until such conveyance, I direct the taxes, charges, and assessments, and all necessary expenses of, for, and upon the said lots, and every one of them, to be paid by my executors, as they shall from time to time accrue and become due and payable, out of the residue of my estate.'

That following this is a devise of the 'rest, residue, and remainder' of the testator's estate, 'real and personal, including his estate called Linnaean Hill,' in trust to trustees for the use of the testator's wife's nephew in tail with a devise over.

Second, That on the twenty-second day of June, 1869, the said will was duly proved and admitted to probate in the Orphans' Court of the District of Columbia.

Third, That on the twenty-second day of April, 1870, Congress passed an 'Act for incorporating a hospital for foundlings in the city of Washington,' 16 Stat. 92; and that on the fourth day of April, 1872, said Shuster and Clagett, trustees, conveyed the property described in the declaration and the above fourteenth item of the will to the defendant, so incorporated in conformity with the directions of the testator.

The court below found for the defendant, whereupon the plaintiffs brought the case here.

Mr. Benjamin F. Butler and Mr. O. D. Barrett, for the plaintiffs in error.

The devise was not an immediate gift to a charity, but an executory devise for charitable purposes. 3 Greenl. Cruise on Real Prop. 444, sects. 1, 2; 2 Redfield on Wills, c. 2, sect. 17; Williams on Real Prop. 290, 291; Powell on Devises, 250, 287; Nightingale v. Burrell, 15 Pick. (Mass.) 104.

It is therefore governed by the same rules as to perpetuities as are executory devises for any other purpose, and is void, as at the death of the testator a possibility existed that it might not vest in the prescribed corporation within twenty-one years, or, at furthest, a life or lives in being and twenty-one years. 1 Jarman on Wills, 233; 2 Redfield on Wills, 571, sect. 14; Williams on Real Prop. 294, 301; 3 Greenl. Cruise on Real Prop. 454, sect. 23; Everitt v. Everitt, 29 Barb. (N. Y.) 118; Stephens et al. v. Evans, Adm'x, 30 Ind. 51; Sears v. Russell, 8 Gray (Mass.), 98; Phelps v. Pond, 23 N. Y. 69; Sinnett v. Herbert, L. R. 7 Ch. 240; Barnes v. Barnes, 3 Cranch, 269; Brattle Square Church v. Grant, 3 Gray (Mass.), 142; 4 Kent, Com. 267; 1 Jarman on Wills, 221; 4 Cruise, Dig., tit. 32, c. 24, sect. 18; Nightingale v. Burrell, supra; Cadell v. Palmer, 1 Ho. of L. Cas. 372; 2 Atkinson on Conveyancing (2d ed.), 264; Bacon v. Proctor, 1 Turn. & R. 31; Mac worth v. Hinxman, 2 Keen, 659; Ker v. Lord Dungannon, 1 Dr. & War. 509; Commissioners of Charitable Donations v. Baroness De Clifford, id. 245; Lewis on Perpetuities, 169; Duke of Norfolk v. Howard, 1 Vern. 163; Welsh v. Foster, 12 Mass. 97.

The devise is void on account of the uncertainty of its object. Baptist Association v. Hart's Ex., 4 Wheat. 1; Coltman et al. v. Moore et al., 1 McArthur, 197; Lingan v. Carroll, 3 Har. & M. (Md.) 333; Dashiell et al. v. The Attorney-General, 5 Har. & J. (Md.) 898; Dashiell v. The Attorney-General ex rel., 6 id. 1; Wilderman v. Baltimore, 8 Md. 551; Board of Missions of the Presbyterian Church v. White's Adm'rs, 4 Am. Law Reg. 531; Wheeler v. Smith et al., 9 How. 76.

A foundling hospital is not a charity. Since the first foundation at Milan, in 787, such institutions have rapidly multiplied in every part of Europe. The waste of human life which they have occasioned, and the injury they have done to public morals, render it probable that they will at no distant period be everywhere suppressed. The statistics of France show that they have produced frightful immorality and mortality, and that it is 'not poverty, but luxury, which produces exposures.' In England, the entire system of the foundling hospital has been altered. Brande's Dict., vol. i. 925.

Mr. Walter S.C.ox and Mr. James M. Johnston, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.