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The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

children"; in this it is for "worthy persons who have no home and orphan boys." A permanent home, the "William L. Gilbert Home," in the one case, and the "Dinwiddie Home" in the other, is the means provided. to accomplish the charitable purpose. The trustees are given "care and control" of the home in the one case; in the other they are made "the judges of what is necessary," and "responsible for the judicious management of all trust committed to them."



In both cases, the test of a valid charitable trust, as applied by BUSKIRK, J., in the case of Grimes' Executors v. Harmon, supra, is fully satisfied: certain and ascertainable trustees are appointed," Judge BusKIRK says, "with full powers to select the beneficiaries and devise a scheme or plan of application of the funds appropriated to the charitable object, the court will, through the trustees, execute the charity."

Another objection raised is, that the will gives the board of commissioners, in trust, the "stock in the Rushville National Bank, to be kept as a perpetual fund -to remain in said bank while it exists."

It is said that this bequest must fail, and with it the whole trust, because only natural persons can hold National bank stock. Should the commissioners be unable to retain the stock under the banking laws, that will not invalidate the gift; they may invest the value of the stock in some other way; as, in fact, the will itself provides they shall do after the bank ceases to exist. The trustees are here also "the judges of what is necessary"; they have taken her place and must do what may be necessary to carry out the trust in circumstances which she could not foresee.

It is also considered as invalidating the trust that the testatrix provided for a church at the home. Every educational, benevolent and penal institution has its

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

chapel exercises. The houses of the General Assembly, and of Congress, are opened with prayer. It is clear, from the words of the will, that the testatrix intended only to provide chapel exercises for the moral instruction of the inmates of the home. She evidently thought that moral training, no less than intellectual and physical, was necessary for the comfort of the older and the education of the younger inmates of the home. We can see nothing in this objection.

It is next contended that the bequest of bank stock is invalid as in conflict with the statutes against perpetuities (sections 3382, 8133, R. S. 1894; sections 2962, 6057, R. S. 1881).

We do not think these statutes are violated. She calls the bank stock a perpetual fund, to remain in the bank while it exists. This is far from meaning forever. Indeed she provides in the very next words that when the bank ceases to exist the commissioners shall seek some other safe investment for the funds. A reasonable interpretation of these words means only that the trustees shall take the utmost care in securing the safety of the funds; and she knew no safer place for her money while the bank lasted than to keep it there.


It is next contended that the last clause of the will shows that a certain part of the property is left undisposed of by the will. We think it very clear that counsel misapprehend the plain meaning of these words. is a fixed principle of the interpretation of wills that the presumption must be always against partial intestacy, and also that the testator's meaning must be sought from the whole context, and not alone from separate parts of the will. So considering this will, we shall find that there is no lapse in any devise.

After disposing of her farm, directly, to the commissioners, and providing for the establishment of the home

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

by them, she says: "In the next place I leave in the hands of my nephew William A. Smith and Thomas M. Green, in trust, all my remaining estate, to be managed by them as by me directed." And, at the close, she makes further directions as to this property: "My trustees are allowed ample time to make arrangements without any sacrifices, I would say ten years if necessary, if needed. When they are through with the trust they can turn all over to the commissioners and their successors. If all parties think it would be best for the estate to retain the houses and lots, they can do so. My wish is that the uses be made of the estate for the benefit of the needy, with as little cost as possible.

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There is here some repetition and awkwardness of language, but the meaning shines clear through it all. Besides the property put into the hands of the commissioners directly, there was a large amount, including some houses and lots, and notes out, that required such attention as the commissioners could not well give. This last property was put into the hands of two trustees, to collect and gather in all her estate, after which they should "turn all over to the commissioners." If it was thought best, in the interests of her estate, that the houses and lots should be retained, why the commissioners might do so. She made the suggestion, they were the sole judges of what might be necessary. But these lots, whether to be sold or retained, and all the other property left in trust, for settlement, with Smith and Green, when they were through with their trust, should go to the permanent trustees, the county commissioners, to whom all her property, real and personal, except the special legacies, was devised and bequeathed for the establishment of the home. This is the reasonable and consistent interpretation of the will, when taken altogether, as it must be.

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

Counsel for appellees base much of their argument for the setting aside of this trust upon the case of Grimes' Executors v. Harmon, supra. That case is a mine of legal learning and profound reasoning upon the subject of charitable trusts and uses. We do not think, however, that there is anything in that case to show that the trust in this case should fail. The trust in that case failed for want of a trustee. The bequest there was "to the orthodox Protestant clergymen of Delphi and their successors, to be expended in the education of colored children."

The court found that when the will was executed no organized or corporate body known as "the orthodox Protestant clergymen of Delphi" was in existence. There was, therefore, no person or corporation with whom the trust might rest.

In Erskine v. Whitehead, Exr., 84 Ind. 357, it was well said of the case of Grimes' Exrs. v. Harmon, supra, by WOODS, J., that "If there had been a good appointment of trustees it is by no means clear that the will of Samuel Grimes should not have been deemed valid as conferring upon trustees the power to select the particular individuals who should receive the benefit of the fund."

In Perry Trusts, section 713, a similar criticism is made on the same case. See also Cruse v. Axtell, 50 Ind. 49, and IIaines v. Allen, 78 Ind. 100; McCord, Exr., v. Ochiltree, 8 Blackf. 15; Vidal v. Girard's Exrs., 43 U. S. (2 How.) 126; Perry Trusts, sections 720, 721.

In the case at bar there is a noble charity provided, there are trustees ready and willing to receive the funds and to execute the powers conferred by the will, and to select the objects of the trust and thus make them certain and apply the funds in aid of the objects so selected. It is quite unnecessary to invoke any extraordinary powers, such as would have been necessary to make the trust valid in the case of Grimes' Exrs. v. Harmon, supra.

The Salem Stone and Lime Company v. Griffin.

All that is needed is the application of a liberal rule of construction, which will always be exercised by a court of equity in favor of a charitable trust.

Whitehead, Exr., supra.

Erskine v.

The judgment is reversed, with instructions to overrule the demurrers to the answers and for further proceedings.

Filed June 7, 1894; petition for a rehearing overruled Oct.17, 1894.

No. 16,809.


CONTRIBUTORY NEGLIGENCE.-Negation of.-Special Averments of Facts. -A general allegation that the plaintiff was free from negligence contributing to the injury sued for, is not overcome by specific averments of facts unless they show that he knew, or had opportunity to know, of the danger.

MASTER AND SERVANT.-Safety of Premises.-Assumption of Hazards.Pleading. Where it is alleged that "the usual, ordinary and safest" way of passing from an elevated tramway into the defendant's adjoining mill was through a dormer window, it can not be assumed from an averment that the plaintiff's (the servant's) first use of the window was in passing from the tramway into the mill that he had mounted the tramway by a safer method, and that he therefore assumed the hazards of the use of the window.

SAME.-Construction of Premises.-Equality of Knowledge.-Where the dangerous agencies leading to the injury of an employe arise out of the negligent construction of the premises, he is not bound to show absence of opportunities, equal to the employer's, for discovering the danger.

SAME.-Prior Injury to Another at Same Place.-Evidence of Admissible to Show Notice to Master.-For the purpose of showing notice to the employer of a dangerous condition, evidence that prior to the injury sued for another person was injured at the same place in the same way, is admissible.

SAME.-Freedom from Fault.-Instruction as to.-An instruction that an employe, who has used ordinary care to discover the dangers of the

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