Jones v. Habersham.

would be no resulting trust for the heirs at law; the fund would fall into the residuum : Wood et al. v. Mitchell Exr., 32 Ga., 623; Williams v. Whittle, 50 Ga., 523.

Railroad stock is personalty in this state: Code, sec. 2237; Southwestern R. R. Co. v. Thomason, 40 Ga., supra.

Item Twenty-second. This item contains the expression upon which is based the claim that the entire will is void, under the law against perpetuities. "It is my wish, and I hereby so direct, that none of the legacies, bequests and devises in any of the clauses of this, my will, shall be executed or take effect until the building and other improvements on the lot on the corner of Whitaker and Gaston streets, and known as the Hodgson Memorial Hall, which I have conveyed in trust to the Georgia Historical Society, shall be completed and entirely paid for out of my estate."

The bill states "that the building and other improvements referred to were in the course of construction at the time of the death of testatrix, but were not completed until many months thereafter, and whether yet entirely paid for, your orators are not certainly informed. If not paid for, it is the only debt known to your orators now existing against said estate."

Code, sec. 2451: "Assets to pay debts: All property, both real and personal, in this state being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy."

The adminis

Code, sec. 2547: "Duty as to contracts: trator must, as far as possible, fulfill the executory and comply with the executed contracts."

The said twenty-second item is but a statement of the general law, and if stricken out, Code, sections 2451 and 2547, would take its place. And should the construction contended for by complainants be placed upon this section of the Code, no one could make a will in Georgia, valid under the law of perpetuities, who should die leaving unfinished, and not entirely paid for, any house, building or other improvement.

Each legatee, upon the death of the testatrix, acquired such an interest in the respective legacies that, if the execu

Jones v. Habersham.

tors capriciously delayed the payment of debts and withheld their assent, he could in equity have compelled the assent: Code, sec. 2452.

All the devises, bequests and legacies in the will are immediate and not mediate. These words were originally used and a technical meaning given to them by Lord Hale: Collingwood v. Pace, 1 Vent., 413.

If the gift, devise or bequest is direct to the legatee or devisee, without passing through another, it is immediate. In this case all the gifts are directly to the legatees or devisees mentioned in the respective items of the will, or they are to William N. Habersham and William Hunter, who are nominated "as executors of this my last will and testament, and trustees under the provisions of the same."

"When a will directs acts to be done which necessarily require the intervention of a trustee to hold the property, the executor is a trustee by necessary implication:" Nash v. Cutler, 19 Pick., 67; Bennet v. Batchelor, 1 Ves., Jr., 63; Gordon v. Green, 10 Ga., 534.

In this case the testatrix not only directs acts to be done which require the intervention of a trustee (if the payment of her debts and the completion of the building and other improvements on the lot on the corner of Gaston and Whitaker streets known as Hodgson Memorial Hall, be such acts), but expressly declares that Habersham and Hunter are nominated executors and trustees under the provisions of the will. The various legatees are the beneficiaries. Construe, then, the entire will, and the scheme of the testatrix is, that her whole estate should pass to Habersham and Hunter, as executors and trustees, to carry out her intentions. They are instructed to complete and pay for, out of her entire estate, the building and other improvements on the lot on the corner of Gaston and Whitaker streets, and known as Hodgson Memorial Hall, which has been conveyed in trust to the Georgia Historical Society; and when this charity, begun in her life time, shall have been completed and entirely paid for out of her estate, then these trustees are directed to assent to and turn over the legacies according to the other provisions of

Jones v. Habersham.

the will. The trust, if any, is to perfect a charity commenced in the life time of the testatrix, and to execute the provisions of the will. In such case, as already cited, when property was given directly to one charity to go over to another in a certain event, it was allowed to go over to the second charity after a lapse of two hundred years, on the ground that it was no more a perpetuity in one charity than in the other: Perry on Trusts, sec. 737, p. 687, and cases cited in the text.

"The disposition which he makes of any surplus, after the complete organization of the colleges, is a good charitable use for poor white male and female orphans:" Perin v. Carey, 24 How., 465.

Charitable uses are never void for perpetuity, and but rarely for uncertainty in America: Wagram on Wills, pp. 406-401; Tudor on Charities, p. 207.

There being a gift to charity, remoteness is out of the case that doctrine has no application to a charity: Chamberlayne v. Brockett, 8 Law Rep. (Ch. App.), 206; Christ's Hospital v. Grainger, 1 McN. & G., 260.

There may be a use or trust upon a use or trust: Code, sec. 2315.

Code, sec. 2311: "An express trust may depend for its ⚫ operation upon a future event, and is then a contingent trust. It may operate in favor of additional or other beneficiaries upon specified contingencies, and is then a shifting trust."

But the complainants rely upon the following extract from the opinion of Judge Swayne, in the case of Ould v. Washington Hospital, supra: "There may be such an interval of time. possible between the gift and the consummation of the use as will be fatal to the former. The rule of perpetuity applies to trust as well as to legal estates. The objection is as effectual in one case as in the other. If the fatal period may elapse before what is to be done can be done, the consequence is the same as if such must inevitably be the result. Possibility and certainty have the same effect; such is the

law."

The bill alleges, on this point, as follows: "And your

Jones v. Habersham.

orators show that the building, and other improvements referred to, were in course of construction at the time of the death of testatrix, but were not completed till many months thereafter, and whether yet entirely paid for your orators are not certainly informed. If not yet paid for, it is the only debt known to your orators existing against said estate."

The appraised value of the estate is placed at $650,000. If "can be done" is to be ascertained by what has been done, then there has never been the least possibility of the lapse of the fatal period in this case. The building and improvements, says the bill, were in course of construction; there was but one debt, and it has, in fact, says the bill, required but a few months to complete this work. The law regards that as certain which can be made certain. If the executors had been dilatory, a court of equity could have compelled the completion of and payment for the work.

The nineteenth chapter of "Lewis on Perpetuities" concludes the subject on indefinite contingencies as follows: "In fine, let the event contemplated be what it may, and the probability of its early occurrence as great as it may, it will, in every case be of too remote expectancy, and a limitation depending upon it will, therefore, always be void, unless either from the nature or internal quality of the contingency, or from express provisions and restrictions it be certain, that the event which is to give effect to the limitation will happen, if at all, within the period of lives in being, and twenty-one years:" Lewis on Perpetuities, 481.

The contingency relied on in this case, is the completion of a building, and other improvements which were in the process of construction at the death of testatrix, and finished several months after her decease. Is there anything in the nature or internal quality of such a pretended contingency to make a perpetuity? The estate was wealthy; the fulfillment of that executory contract of the testatrix was a legal certainty, and not a contingency.

In Henshaw v. Atkinson, Sir John Leach uses the following language: "It is argued that it was the testator's intention that the charities were not to take effect until lands or

Jones v. Habersham.

buildings were supplied by others, and that the money may be locked up for an indefinite period of time, and, therefore, that the bequest cannot be sustained. The cases of Downing College, Amb., 550, and Attorney-General v. Bishop of Chester, 1 Bro. Ch., 444, seem to be authority against that objection:" 3 Madd., 306.

But if, as already contended, the gift is immediate, either to the legatees or to Habersham and Hunter, as trustees under the provisions of the will, the devise is good, although the enjoyment or consummation of the use may depend upon uncertain events. In such cases, the court will hold up the gift a reasonable time to await the happening of the contingency: Attorney-General v. Bishop of Chester, 1 Bro. Ch., 444; Attorney-General v. Oglander, 3 Bro. Ch., 166; Chamberlayne v. Brockett, 8 Law Rep. (Ch. App.), 206.

In this case, the contingency, if any ever existed, has already happened, and the intention of the testatrix expressed in clear and unambiguous terms, can be carried into full effect. Mr. Justice Swayne, in Ould v. Washington Hospital, supra, said: "It is a cardinal rule in the law, that courts will do this whenever it can be done. Here we find no impediment in the way. The gift was immediate and absolute, and it is clear, beyond doubt, that the testator meant that no part of the property so given should ever go to his heirs at law, or be applied to any object other than that to which he had devoted it.”

"Charitable uses are favorites with courts of equity. The construction of all instruments, where they are concerned, is liberal in their behalf. Even the stern rule against perpetuities is relaxed for their benefit:" 95 U. S., 313. See, also, Beall v. Fox, 4 Ga., 404.

BRADLEY, Circuit Justice. This is a bill filed by the heirs at law of Mary Telfair, seeking to have the devises and bequests of her last will adjudged inoperative and void, and a resulting trust in all of her estate declared in favor of said heirs, and that they may have a decree for their distributive

VOL. III.-30