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(197 Ky. 663, 247 8. W. 739.) worship, public instruction, parson- It is the contention of the church age, or graveyard, it may, therefore,

trustees that, by the terms of this take said devise, provided, that its will, not only the personal property verified answer herein alleges that in

devised by said will, at the death of good faith it elects to acquire and

Mrs. Minnie Willett, passed to the hold same under such conditions, and that it will comply with the terms of Hopewell Church, but that the land, the statute in such cases made and

by the terms of said will, was equiprovided.

tably converted, at the death of Mrs. Compton v. Moore, 167 Ky. 657, 181 Minnie Willett, the life tenant, into S. W. 360.

personal property, and as personal Messrs. Emmett Dickson and Denis property passed to and vested in Dundon for appellees.

these defendants as trustees, for the Sampson, Ch. J., delivered the benefit of the Hopewell Church. opinion of the court:

The lower court held that the devise The last will of Mrs. Bessie White to the church was valid, and through Burgess, deceased, of Hutchinson, equitable conversion passed as perBourbon county, Kentucky, is pre- sonalty to the trustees of the church, sented for construction. It reads: but held that the bequest for the

I write this as my last will. I support of the dog, “Dick," was ingive my sister, Mrs. Minnie Willett, valid. everything that I have at my death We think the meaning of the will, for her life, at her death it is to go copied above, may be better underto the Hopewell Church for a fund stood if some of its parts be transto be known as the 'Quincy Burgess posed so that it reads: “I write this fund' to be used for the church, as my last will. I give to my sister, with the exception of $1,000, which Mrs. Minnie Willett, everything I is to be used for the support of our

have at my death, except $1,000, dog ‘Dick,' if the interest is not suf- which is to be used for the support ficient for him to be kept in com- of my dog 'Dick,' to be used by her fort, that is being well fed, have a for life; at her death it is to go to bed in the house by a fire and treat- the Hopewell Church for a fund to ed well every day, that the principal be known as the 'Quincy Burgess be used to such a sum so it will last fund,' to be used for the church. If his lifetime.

the interest from the $1,000, which "I also give Mrs. Belilah Stevens is set aside for the support of my $100 for being kind to me when I dog ‘Dick,' be not sufficient to keep needed it. Dicky must have three him in comfort,—that is, be well meals daily.”

fed, have a bed in the house by a The plaintiffs, claiming that they fire, and treated well every day,and the defendant Minnie Wil- the principal (may) be used so it lett are the only heirs at law of will last his lifetime." Bessie White Burgess, bring this We think the following is a fair suit, asking for a construction of interpretation of the intention of said will, and charge, in substance, the maker of the will, as gathered in their petition, that the devise to from the entire instrument: Testhe Hopewell Church is void for in- tatrix gave all of her estate to her definiteness and uncertainty, and is sister for life, except $1,000, the inin conflict with and in contravention terest on which is to be used to supof § 319 of the Kentucky Statutes, port and care for her dog, and at and make the further contention the death of her sister the remainthat the plaintiffs are entitled, as der to go to the Hopewell Church the heirs at law of Bessie White for a fund to be known as the Burgess, at the death of the life ten- “Quincy Burgess fund.” This inant, Minnie Willett, to have and re- tention is plainly manifested by the ceive the estate, real and personal, writing. The sister, Mrs. Minnie devised by said testatrix to the Willett, takes all the estate, except Hopewell Church.

$1,000, for life. After her death all

Trust-absence of trustee effect.

this property, both real and person- There is a clear distinction beal, passes to the said church, if by tween a "charity" and a "humane law it may receive it in the way and purpose.” The latter may be susfor the purpose expressed in the tes- tained where the former would fail. tament. The remaining $1,000 not Charity extends to every one of a devised to Mrs. Minnie Willett is to class, while it is a humane purpose pass to a trustee, the income to be which moves a person to take care employed to support and care for of or feed a single hungry person, testatrix's favorite dog, "Dick," and bird, or dog. if the income is not sufficient for Lexicographers define, illustrate, that purpose, the corpus may be en- and explain the word “humane,” as croached upon to carry out the pur- follows: poses for which the bequest was “Having the feeling and inclinamade. It is insisted, and the lower tions proper to man; having tendercourt so held, that the bequest for ness, compassion, and having a disthe support of the dog Dick must position to treat other human beings fail, because (1) there is no trustee, and the lower animals with kindand (2) a dog cannot take as devisee ness; kind; benevolent.” Century. under our law.

“Having the feelings and inclinaIt must be remembered that tions creditable to man; having, equity never allows a trust to fail showing, or evidencing a disposi

for want of a trus- tion to treat other human beings or tee. The court can

animals with kindness or compasand should appoint sion; kind; benevolent.” Webster's a trustee to take and carry out the New International. trust created in favor of the dog. “'Humane' differs from the ordiKy. Stat. $ 318; Green v. Fidelity nary use of 'merciful,' in that it exTrust Co. 134 Ky. 311, 120 S. W. presses active endeavors to find and 283, 20 Ann. Cas. 861; Roche v. relieve suffering, and especially to George, 93 Ky. 609, 20 S. W. 1039. prevent it, while ‘merciful ' ex

This is not a devise to the dog, presses the disposition to spare one "Dick," but a trust created for his the suffering which might be inflict

use and benefit, and ed." Century. -for support of dog-validity.

is not contrary to In the case of Ford v. Ford, su

law, but is allow- pra, in distinguishing between a able under our statutes, $ 317, where charity and a humane purpose, it is it is provided: "All grants, convey

said: ances, devises, gifts,

hereto- ""Charity,' in its most general fore made, or which shall be here- legal sense, has been said to be a after made, in due form of law, of general public use; but the definiany lands, tenements, rents, . tion given by the eminent counsel in money,

for the relief or the Girard Will Case has received benefit of aged or impotent and poor judicial approval. It is: 'Whatpeople,

or for any other ever is given for the love of God or charitable or humane purpose, shall for the love of our neighbor, in the be valid, if the grant, conveyance,

catholic and universal sense, given devise, gift, appointment, or assign- from these motives and to these ment shall point out, with reason- ends, free from the stain of everyable certainty, the purposes of the thing that is personal, private, or charity and the beneficiaries there- selfish, is a gift for charitable uses. of, except as hereinafter restricted.” "Our statute, by declaring that a

While the devise did not create a devise for any 'charitable or humane charity in its strict technical sense purpose' shall be valid, has perhaps (Ford v. Ford, 91 Ky. 576, 16 S. W. gone even beyond the limit fixed by 451), it was for a “humane pur- these accepted definitions." pose" within the meaning of our “A gift or devise for the benefit said Statutes.

of useful animals," says Alexander's (197 Ky. 663, 247 8. W. 739.) work on Wills (page 1645), "is for is nothing in the fact that the ana charitable purpose. Thus a be- nuity arises out of land to prevent quest to a city to erect a suitable its being a good gift." See also 11 fountain for the benefit of thirsty C. J. p. 326. animals and birds; a bequest to park It therefore appears that the commissioners for a fountain with a chancellor was in error in holding drinking basin for horses; a bequest the bequest in favor of the dog, for the founding of an institution “Dick," invalid and unenforceable. for the study and cure of maladies The right of the Hopewell Church of quadrupeds or birds useful to to the devise is not disturbed by the man; a bequest to a society to pro- character of the property at the mote prosecution for cruelty to ani- time of the making of the will, or by mals; a bequest for the maintenance the alleged indefiniteness of the of starving and forsaken cats; a be- terms of the writing, nor are the quest for the publication of a paper trustees of the church for any reaby a society for the prevention of son unable to take under the devise. cruelty to animals; a bequest to a Clearly the testatrix intended to home for lost dogs, and for the sup- create a fund to be used for the pression and abolition of vivisection, church. She did not devise the are all for charitable purposes. It property belonging to her estate in seems, however, that where the be- kind to the church or its trustees , quest is for the benefit of animals but only the proceeds of such propnot useful to mankind, such as the erty after it had been converted infeeding of English sparrows, the to money. The expression “to go to gift is not a charity. And, further- the Hopewell Church for a fund to more, a gift in favor of the testa- be known as the 'Quincy Burgess tor's horses and dogs is obviously fund,' to be used for the church" innot a charity, because it is intended dubitably fixes the character of the for the benefit of the particular ani- gift, and makes it certain that the mals mentioned, and not for the testatrix intended the property, at benefit of animals generally."

the death of her In the English case of Re Dean, sister, to be con

Will-bequest to

church-validity. L. R. 41 Ch. Div. p. 552, the court, verted into money, in discussing a trust for the benefit creating a fund to be known as the of the horses and dogs of the testa- "Quincy Burgess fund,” to be used tor, observes: “It is said that it for said church. Where the lan[the trust] is not valid, because (for guage employed by the devisor this is the principal ground upon clearly indicates, as in this case, which it is put) neither a horse nor such a purpose, equity steps in, and, a dog could enforce the trust.

by treating that as done which It is obviously not a charity, because should be done, converts the real it is intended for the benefit of the property into personalty. particular animals mentioned, and “The right of a testator," says 6 not for the benefit of animals gener- R. C. L., p. 1073, "to make land ally, and it is quite distinguishable money, to effect his own purpose, is from the gift made in a subsequent unquestionable; and it follows from part of the will to the Royal Soci- this right that persons claiming ety for the Prevention of Cruelty to property under a will directing its Animals, which may well be a chari- sale must take it in the charaeter ty. In my opinion this provision which the will imposes on it. This for the particular horses and hounds results not from the application of referred to in the will is not, in any any artificial rule, or any equitable sense, a charity, and if it were, of doctrine, but solely because it is the course, the whole gift would fail, be

testator's expressed desire. But cause it is a gift of an annuity aris- while in such a case it is not the law ing out of land alone. But in my that works the conversion, but the opinion, as it is not a charity, there will that directs it, the law does, as has been seen, sometimes employ a would defeat the intention of the fiction in aid of a testator's inten- testator as it appears from the tion, and, by use of it, the conver- whole will.” Reynolds v. Reynolds, sion which the testator ordered is 187 Ky. 324, 218 S. W. 1001. anticipated in such a way that what Considered and construed in the is ordered to be done is regarded as light of all the authorities with a actually accomplished. Necessarily, view to finding and enforcing the into work an equitable conversion of tention of the testatrix, we are perproperty there must be a direction, suaded that under the will Mrs. either express or implied, in the in- Minnie Willett takes a life estate onstrument intended to effect the ly in the property devised to her, transmutation.”

with remainder, when converted, The same rule is stated in 13 C. for the use of the church. In the reJ. p. 862, as follows: "On the oth- maining $1,000 a trust is created er hand, the intention to convert for the use and benefit of the dog, may be implied, as where a testator “Dick," which will not be allowed to authorizes his executors to sell his fail for want of a trustee, in this real estate, and where it is apparent case where a humane purpose is from the general provisions of the sought to be accomplished. The will that he intended such estate to residue of this latter fund, if any be sold, although the power of sale there be, will, of course, pass at the is not in the terms imperative. The death of the dog, “Dick," as undemere absence of words of express vised estate. command or direction should not be For the reasons indicated, the held to render the exercise of the judgment is affirmed in part and repower discretionary, when so to hold

versed in part.

ANNOTATION.

Validity of bequest or trust for care of specified animal.

The reported case (WILLETT v. use and benefit,” and was not contrary WILLETT, ante, 426), is apparently the to law, but permissible under the statonly American case passing on the utory provision mentioned. The court validity of a bequest or trust for the distinguishes between "charity" and care of a specified animal. It ap- “humane purpose," and holds that the pears in that case that in a last will

testamentary provision is for "a and testament it was provided that humane purpose,” which would reathe sister of the testatrix should have sonably include the taking care of, or a life interest in all her property, ex

feeding, a single specified person, cept the sum of $1,000, which was to bird, or dog. A further objection was be set aside and used for the care of made that no trustee was named to the pet dog of the testatrix. In an carry out the trust. The court holds action for a judicial construction of that equity never allows a trust to the will, the contestants claimed that fail for the want of a trustee, and that a dog could not take the bequest un- accordingly the court could and should der the law in Kentucky. The particu- appoint one to carry out the trust lar statute (Ky. Stat. § 317) relied created in favor of the dog. upon. provided that all grants, devises, In England, it has been held that a or gifts made in due legal form for bequest or trust providing for the any charitable or humane purpose care of specified animals is valid. should be valid, if the gift pointed out Mitford v. Reynolds (1848) 16 Sim. with reasonable certainty the charity 105, 60 Eng. Reprint, 812, 17 L. J. Ch. or beneficiary. The holding of the N. S. 238, 12 Jur. 197; Re Dean court is to the effect that the provision (1889) L. R. 41 Ch. Div. (Eng.) 552, in the will was not "a devise to the 58 L. J. Ch. N. S. 693, 60 L. T. N. S. 813. dog, 'Dick,' but a trust created for his In the case of Re Dean (Eng.) su

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pra, it was held that a testamentary gift not for the benefit of animals in general, but for the benefit of specific animals, was not a bequest to charity, but a valid trust created for the support and maintenance of the animals specified. The record showed the following provision in the testator's will: "I give to my trustees my eight horses and ponies (excluding cart horses) at Littledown, and also my hounds in the kennels there. And I charge my said freehold estates hereinbefore demised and devised, in priority to all other charges created by this my will, with the payment to my trustees for the term of fifty years commencing from my death, if any of the said horses and hounds shall so long live, of an annual sum of £750. And I declare that my trustees shall apply the said annual sum payable to them under this clause in the maintenance of the said horses and hounds for the time being living, and in maintaining the stables, kennels, and buildings now inhabited by the said animals in such condition of repair as my trustees may deem fit.

The said horses and ponies shall not be worked after my death, but may at all times be exercised on my freehold property at the discretion and direction of my trustees, and that neither they nor the said hounds shall be sold, but that the latter may be used by the person for the time being entitled to the possession of the settled hereditaments. I direct that whenever my trustees shall consider that one or any of the said horses and ponies should be killed, the same shall be shot with à double-barreled gun,

with both barrels loaded at the same time, with clean barrels and a full charge. In consideration of the maintenance of my horses, ponies, and hounds being a charge upon my said estate as aforesaid, I give all my personal estate not otherwise disposed of unto the said James Cooper, his heirs, executors, administrators, and assigns absolutely.” The contestants attacked the validity of the provision on the ground that neither a horse nor a dog could enforce the trust. North, J., held the trust to be valid, saying: “It

is obviously not a charity, because it is intended for the benefit of the particular animals mentioned, and not for the benefit of animals generally.

In my opinion this provision for the particular horses and hounds referred to in the will is not, in any sense, a charity.

. A man may, if he pleases, give a legacy to trustees, upon trust to apply it in erecting a memorial to himself, . although it is difficult to say who would be the cestui que trust of the monument. In the same way, I know of nothing to prevent a gift of a sum of money to trustees, upon trust to apply it for the repair of such a monument. In my opinion such a trust would be good, although the testator must be careful to limit the time for which it is to last, because, as it is not a charitable trust, unless it is to come to an end within the limits fixed by the rule against perpetuities, it would be illegal. ... Is there anything illegal or obnoxious to the law in the nature of the provision—that is, in the fact that it is not for human beings, but for horses and dogs? It is clearly settled by authority that a charity may be established for the benefit of horses and dogs, and there. fore the making of a provision for horses and dogs, which is not charity, cannot of itself be obnoxious to the law, provided, of course, that it is not to last for too long a period.

There is nothing, therefore, in my opinion, to make the provision for the testator's horses and dogs void."

In Mitford v. Reynolds (Eng.) supra, a bequest for the care of the testator's horses was held to be valid. The final provision of the will creating the trust was as follows: "I will, devise, give and bequeath the remainder of my property, of whatsoever kind and description, and that may arise from the sale of my effects, after deducting the annual amount that will be requisite to defray the keep of my horses (which I will and direct be preserved as pensioners, and are never, under any plea or pretense, to be used, rode or driven, or applied to labor), to the government of Bengal, for the express purpose of that

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