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Charities, § 7-teachers' retirement fund.

1. A fund established by a school committee under statutory authority, to be made up from deductions from the salaries of teachers, with the addition of gifts, donations, or bequests, for the purpose of paying annuities to retired teachers, is not a charity.

[See annotation on this question beginning on page 63.]

Wills, §§ 336, 371 bequest to teachers' retirement fund termination of beneficiary effect.

2. A bequest to a fund established by a school committee under statutory authority, to be made up from deductions from the salaries of teachers,

with the addition of gifts, donations, or bequests, for the purpose of paying annuities to retired teachers, fails when the fund ceases to exist because the pensioning of teachers is taken over by the municipality, and falls into the residue of the estate.

PROCEEDING by petitioners for the opinion of the Supreme Court as to the meaning and construction of a clause in a will bequeathing a certain amount to the teachers' retirement fund. Bequest held to have failed. The facts are stated in the opinion of the court. Messrs. McGovern & Slattery and Edwards & Angell, for residuary legatees:

The legacy in question is either a void or lapsed legacy.

Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290; Owens v. Missionary Soc. 14 N. Y. 380, 67 Am. Dec. 160; Sherwood v. American Bible Soc. 4 Abb. App. Dec. 227; Betts v. Betts, 4 Abb. N. C. 317; 40 Cyc. 1053; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198.

Said legacy is not a bequest to char. ity.

Jackson v. Phillips, 14 Allen, 539; Barnwell's Estate, 269 Pa. 443, 112 Atl. 535; Kelly v. Nichols, 18 R. I. 62, 19 L.R.A. 425, 25 Atl. 840; Mason v. Perry, 22 R. I. 475, 48 Atl. 671; Rhode Island Hospital Trust Co. v. Benedict, 41 R. I. 143, 103 Atl. 146.

Even if it was a charitable bequest, the cy prés doctrine does not apply to it.

Clark v. Taylor, 1 Drew. 642, 61 Eng. Reprint, 596; Gladding v. St. Matthew's Church, 25 R. I. 628, 65 L.R.A. 225, 105 Am. St. Rep. 904, 57 Atl. 860, 1 Ann. Cas. 537; Murphy v. McBride, 14 Del. Ch. 457, 130 Atl. 283; Wood v. Fourth Baptist Church, 26 R. I. 594, 61 Atl. 279; Matteson v. Brown, 33 R. I. 339, 80 Atl. 133.

Mr. John W. Baker, for Hawkins, pensioner:

The legacy of $3,000 under the eleventh clause of the will of Emma Foster Armington vested at the date of her death as a charitable trust for the benefit of the retired teachers of the public schools of Providence, and therefore should not fall into the residue.

Pell v. Mercer, 14 R. I. 412; Rhode Island Hospital Trust Co. v. Benedict, 41 R. I. 143, 103 Atl. 146.

The trust in favor of the retired public school-teachers of Providence should not fail because the board of trustees of the old public school-teachers' retirement fund went out of existence without ever having accepted the legacy, and because the retirement board of the new employees' retirement system has failed to accept said legacy.

Hubbard v. Worcester Art Museum, 194 Mass. 280, 9 L.R.A. (N.S.) 689, 80 N. E. 490, 10 Ann. Cas. 1025; Nichols v. Newark Hospital, 71 N. J. Eq. 130, 63 Atl. 621; Winslow v. Stark, 78 N. H. 135, 97 Atl. 979; Read v. Willard Hospital, 215 Mass. 132, 45 L.R.A. (N.S.) 574, 102 N. E. 95; Richardson v. Essex Institute, 208 Mass. 311, 94 N. E. 262, 21 Ann. Cas. 1158; Burr v. Boston, 208 Mass. 537, 34 L.R.A. (N.S.)

(— R. I. —, 134 Atl. 16.)

143, 95 N. E. 208; Richards v. Church Home, 213 Mass. 502, 100 N. E. 631; Meeting Street Baptist Soc. v. Hail, 8 R. I. 234; Wood v. Fourth Baptist Church, 26 R. I. 594, 61 Atl. 279; Guild v. Allen, 28 R. I. 430, 67 Atl. 855; St. Peter's Church v. Brown, 21 R. I. 367, 43 Atl. 642.

When a charitable trust cannot be administered exactly as the testator planned, the court will devise and direct a method as nearly as possible in conformity with the testator's wishes. Brice v. All Saints Memorial Chapel, 31 R. I. 183, 76 Atl. 774; Osgood v. Rogers, 186 Mass. 238, 71 N. E. 306; Mason v. Bloomington Library Asso. 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603.

Sweeney, J., delivered the opinion of the court:

The parties to this proceeding are all of the parties having adversary interests in questions involving the construction of the eleventh clause in the will of Emma Foster Armington. They have concurred in stating such questions in the form of a special case for the opinion of this court under authority of § 4953, Gen. Laws 1923.

Emma Foster Armington died in Providence January 26, 1924. Her will was admitted to probate by decree of the municipal court of said city March 5, 1924. An appeal was taken from said decree to the superior court. March 10, 1925, final decree was entered in the superior court affirming the decree appealed


The eleventh clause of said will is as follows: "Eleventh. I give and bequeath the sum of three thousand ($3,000) dollars to the teachers' retirement fund, meaning the fund maintained for the benefit of the public school teachers of the city of Providence."

Before the executor was ready to pay the bequest, the teachers' retirement fund had ceased to exist, because it had become merged in the retirement system of said city. On account of the nonexistence of the teachers' retirement fund the executor and the two residuary legatees

of said will claim that the eleventh

clause is a void or lapsed bequest and that the amount of the bequest falls into the residuum of the estate. Avis A. Hawkins, one of the petitioners, was a beneficiary under the school teachers' retirement fund. She represents a class of beneficiaries under said fund and opposes the claim of the executor and legatees. She contends that said bequest constitutes a charitable trust which should be used for the benefit of the school teachers who have retired from teaching in the public schools of Providence. The retirement board of said retirement system joins in the claim of Avis A. Hawkins.

The parties concur in asking this court for an opinion on the following questions: (1) Does the legacy of $3,000 established by the eleventh clause of the will fall into the residue of the estate because the teachers' retirement fund therein mentioned has ceased to exist? (2) If the court answers the above quesfund be paid by said executor? tion "No," to whom should said

To answer these questions it is first necessary to determine whether the teachers' retirement fund was a charitable trust or the gift in the eleventh clause constituted one. The teachers' retirement fund was established by the school committee chap. 485, Public of said city under authority of Teachers appointed after October 1, Laws 1897. 1897, were made subject to the provisions of said chapter and those appointed prior thereto might elect to accept the provisions thereof. The retirement fund consisted of all moneys received from gifts, donations, bequests, or otherwise, and a percentage deducted from the salaries of the teachers in the public schools in said city who had accepted, or were subject to, the provisions of said chapter. The fund was administered by a board of trustees, which was authorized to invest the funds and pay therefrom annuities to retired teachers. The

chapter provided that every teacher who had annually contributed to the

fund and had taught a specified number of years in the public schools of said city might retire from such service and become a beneficiary thereunder and be paid a limited annuity each year out of said fund by said board of trustees.

The board of trustees continued to administer said fund until March 18, 1925, when they adopted a resolution stating "that the teachers' retirement fund has be

come unable to continue the payment of the annuities of the beneficiaries on the roll as of November 20, 1924, the date on which the 'employees' retirement system' of the city of Providence was established, at the rates and amounts actually paid to the beneficiaries for the month of April, 1923."

The reason for the passage of this resolution was the establishment of a new and comprehensive system for the retirement and pensioning of nearly all of the employees or officers of the city, including members of the teaching staff of the public schools. Said system is known as the "retirement system" and has all of the powers and privileges of a corporation. It was created by chap. 2374 (chap. 489, Revised ed.) Public Laws 1923, and became operative January 5, 1925.

The retirement board of said retirement system passed a resolution March 19, 1925, directing the transfer of all the cash and securities standing to the credit of the teachers' retirement fund to the "pension accumulation fund" of the retirement system, and that the annuities payable to the beneficiaries of said teachers' retirement fund be continued and paid at the same rate and amount as was paid to them during the month of April, 1923, such payments to be made from said "pension accumulation fund;" and that all teachers contributing to said teachers' retirement fund be relieved from further contributions to such fund.

The transfer of the cash and securities from said teachers' retirement fund was duly made to the

"pension accumulation fund" of the retirement system and became merged therein, and the trustees of said teachers' retirement fund ceased to function. Section 11 of said chap. 2374 authorized the pas-sage of both resolutions above referred to and provided that after the transfer of said cash and securities to the "pension accumulation fund" the annuities to the beneficiaries on the rolls of the teachers' retirement fund would be continued and paid at the same rate and. amount as was paid during April, 1923, and that such payments. should be made from the "pension accumulation fund" of the retirement system.

The reason for the creation of teachers' retirement funds and their development is stated in State ex rel. Dudgeon v. Levitan, 181 Wis. 326, 193 N. W. 499. In Re Bristol, 93 Misc. 626, 158 N. Y. Supp. 503, id. 173 App. Div. 545, 160 N. Y. Supp. 410, it was held that the members of a local teachers' retirement fund association created by city charter acquired no vested right in the funds created by contribution of a percentage of the salaries of those teachers who choose to become members, and by gifts, bequests, and otherwise, and that the transfer of such funds from the local fund custodian to the state teachers' retirement fund board could be compelled to be made under the state law. 1 Dillon on Municipal Corporations, p. 755, says: "The direction of the state that the fund should be one for the benefit of the officer or his representative under certain conditions is subject to change or revocation at any time at the will of the Legislature. There is no contract on the part of the state that its disposition shall always continue as originally provided. Until the particular event should happen upon which the money, or a part of it, is to be paid, there is no vested right in the officer to such payment. His interest in the fund is, until then, a mere expectancy created by the law and

(— R. I. —, 134 Atl. 16.)

liable to be revoked or destroyed by teachers' retirement fund, are being the same authority."

Charitiesteachers' retirement fund.

The teachers' retirement fund was not a "charity." It was to be made up of money deducted from the salaries of the teachers, with the addition of any gifts, donations, or bequests thereto. The bequest made by the eleventh clause of the will of the testatrix was an absolute gift to said teachers' retirement fund. It was not made upon any condition or for any special purpose. If the amount of the bequest had been paid into said teachers' retirement fund before its existence ceased, it would have become merged therein and would have passed, with the other cash and securities composing it, to the "pension accumulation fund" of the retirement system. There is now no teachers' retirement fund. It has ceased to exist. The chapter creating this fund was practically repealed when the voters of Providence accepted the provisions of the chapter creating the retirement system.

The officers of the retirement system disclaim any right to the bequest. It cannot be paid to the teachers' retirement fund on account of its nonexistence. The teachers, who were beneficiaries under said

paid the annuities due them out of the pension accumulation fund of the retirement system. The bequest in the eleventh clause was not made to the retired teachers and they are not entitled to the money bequeathed.

On account of the nonexistence of the legatee named


termination of

in the eleventh to teachers' reclause the legacy tirement fundfails and falls into beneficiarythe residuum of the effect. estate and passes under the residuary clause of the will. Woodward v. Congdon, 34 R. I. 316, 83 Atl. 433, Ann. Cas. 1914C, 809; Nicherson v. Bragg, 21 R. I. 296, 43 Atl. 539; Re Reynolds, 20 R. I. 429, 39 Atl. 896; Peckham v. Newton, 15 R. I. 321, 4 Atl. 758. For cases somewhat analogous to the present one, see Wood v. Hammond, 16 R. I. 98, 116, 17 Atl. 324, 18 Atl. 198, and Gladding v. St. Matthew's Church, 25 R. I. 628, 65 L.R.A. 225, 105 Am. St. Rep. 904, 57 Atl. 860, 1 Ann. Cas. 537.

Our answer to the first question is "Yes." On account of this answer it is unnecessary to answer the second question.

On July 6, 1926, counsel may present a decree in accordance with this opinion.


Gift for retirement or pension fund of teachers or other public officers or employees as a valid charitable trust.

[Charities, § 7.]

An extensive search reveals no case other than that reported herewith (RE CARPENTER, ante, 60), where the validity as a charitable trust of a gift for the establishment or perpetuation of a retirement or pension fund for teachers or other public servants has been passed upon.

The decision in Minns v. Billings (1903) 183 Mass. 126, 5 L.R.A. (N.S.) 686, 97 Am. St. Rep. 420, 66 N. E. 593, where a fund appropriated by executors for the assistance of sick and disabled members of a teachers' mutual

benefit association was sustained as a charitable use under a power in a will to apply certain of the testator's estate to such charitable purposes as to the executors might seem proper, is no precedent on this question, for it not only did not involve a retirement or pension fund or system, but did not decide-nor was it necessary for the decision, it seems-whether the beneficiary association was a charity.

The following statement from 5 R. C. L. 293, § 3, may serve as a criterion for the decision of cases on this ques

tion: "A gift is a 'public' charity when there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. Even if its benefits are confined to specified classes, as decrepit seamen, laborers, farmers, etc., of a particular town, it is well settled that it is a public charity. The essential elements of a public charity are that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character. Without undertaking to be technically accurate, a 'purely public' charity may be defined as one which discharges, in whole or in part, a duty which the commonwealth owes to its indigent and helpless citizens. Notwithstanding these general rules, it is usually held that a charity is none the less public because it is limited in its operation to the members of a particular sect or society, so long as it is wholly altruistic in the end to be attained, and no private or selfish interest is fostered under the guise thereof; though there are cases which lay it down that none is a public charity

which the state is not under obligation in the first instance to endow for the use of the very class to be benefited. Under this latter view the fact that a charity is limited in its operation to the members of a particular organization or association has been held to deprive it of its purely public character, for it is said that the word 'public' relates to or affects the whole people of a nation or state. A charity may restrict its admissions to a class of humanity, and still be public; it may be for the blind, the mute, those suffering under special diseases, for the aged, for infants, for women, for men, for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public; but when the right to admission depends on the fact of voluntary association with some particular society, then a distinction is made which concerns not the public at large." P. U. G.

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(— Minn. —, 208 N. W. 811.)

Cemeteries, § 2-authority of association.

1. A public cemetery association may require that improvements and decorations conform to the general plan for improving and beautifying the cemetery, be made by competent persons, and comply with all reasonable rules regulating the character of the work and the manner of doing it. [See annotation on this question beginning on page 70.]

Cemeteries, § 2 right to care for graves.

2. A lot owner in a public cemetery has the right to have the graves thereon cared for and decorated by persons chosen by himself, and a rule of the association requiring him to employ

Headnotes by TAYLOR, C.

only employees of the association to do such work is unreasonable, and an unlawful restriction upon his rights.

[See 1 R. C. L. Supp. 1342; 6 R. C. L. Supp. 297. See also annotation in 32 A.L.R. 1406.]

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