Notwithstanding the provisions of the Acts of July 2, 1864, cc.
210, 222 (reenacted in Rev.Stat. § 858, and Rev.Stat. D.C.
§§ 816, 877), a widow is incompetent to testify, in a
suit which she is neither a party to, nor interested in, to a
private conversation between her husband and herself in his
lifetime, and a conversation between them in their own home, in the
presence of no one but a young daughter, who does not appear to
have taken any part in it, is a private conversation, within the
rule.
The rule against perpetuities is inapplicable to a trust
resulting to the heirs of a grantor upon the failure of an express
trust declared in his deed.
By a deed of land from a private person to three others as
trustees for a particular society, not incorporated, but formed for
the mutual aid of its members when sick and for their burial when
dead, to have and to hold to the trustees, "and their successors in
office forever, for the sole use and benefit of the society
aforesaid, for a burial ground, and for no other purpose whatever,"
the trustees take the legal estate in fee; and when the land has
ceased to be used for a burial ground, and all the bodies there
interred have been removed to other cemeteries, by order of the
municipal authorities, and the society has been dissolved and
become extinct, the grantor's heirs are entitled to the land by way
of resulting trust; and, after one of those heirs and the heirs of
the trustees have conveyed their interests in the land to another
person, the other heirs of the grantor may maintain a bill in
equity against him to enforce the resulting trust, and for
partition of the land, and for complete relief between the
parties.
This was a bill in equity, filed May 24, 1889, against William
H. Grimshaw, and against Mary J. Brooks, an heir of Stephney
Forrest, by the other heirs of Forrest, and by "Horace S. Cummings,
trustee," to enforce a resulting trust in, and to obtain partition
of, land in the City of Washington, conveyed by Forrest to David
Redden and others, trustees
Page 165 U. S. 343
for the Union Beneficial Society of the City of Washington, for
a burial ground. The case was heard upon pleadings and proofs, and
was, in substance, as follows:
By deed dated August 9, 1845, and recorded October 21, 1845,
William Nolan, Commissioner of Public Buildings, in consideration
of the sum of $129.93, recited to be paid by the grantee, conveyed
to "Stephney Forrest, his heirs and assigns forever," ten lots,
comprising the north half of square 1089 in the City of
Washington.
By deed not dated, but acknowledged September 25, 1845, and
recorded October 21, 1845, Stephney Forrest, for a like
consideration, conveyed the same land to "David Redden, Daniel
Simms, and William Barton, trustees for the Union Beneficial
Society of Washington City," to have and to hold to said Redden,
Simms, and Barton,
"and their successors in office forever, for the sole use and
benefit of the Union Beneficial Society of the City of Washington
as aforesaid, for a burial ground, and for no other purpose
whatever."
Stephney Forrest died in 1855, having been twice married, and
leaving six children by his first wife, and one daughter (since
Mary J. Brooks) by his second wife, Rachel Forrest, who also
survived him. He was a member of the society, and the answer
alleged that he purchased the land in behalf of the society, and
with its money.
The only evidence offered in support of this allegation
consisted of depositions of Rachel Forrest, his widow, and of Mary
J. Brooks, their daughter, taken in November, 1889, the material
parts of which were as follows: Mrs. Forrest testified that she was
now 85 years old; that she knew her husband bought this land for
the society, because, before he left home on the morning of the day
of his purchase, he told her that he was going to buy the land for
the society, and to get the money from the society to buy it, and
came back and showed her a bundle which he said contained the
money, and later in the day told her that he had bought the land
for the society, and that she never talked with her daughter about
this, or mentioned it to any one until the day she testified in
this case. Mrs. Brooks testified that, when she was 13
Page 165 U. S. 344
or 14 years old, she heard her father, as he left home one
morning, say that he was going to the secretary of the society to
get the money to buy the land for the society. The plaintiffs'
counsel at the hearing, objected to this testimony of Forrest's
widow and daughter as insufficient to establish a trust, and to the
widow's testimony, as incompetent to prove statements made by her
husband to her.
The Union Beneficial Society of the City of Washington was an
unincorporated association of colored persons, formed by articles
of association in writing in 1841, by which provision was made for
visiting sick and infirm members, and for applying to their relief
money appropriated for that purpose, and for paying, upon the death
of any member, certain sums out of the funds of the society
"towards defraying the funeral expenses," and "to the widow, orphan
children, or legal representatives, of such deceased member." The
funds of the society were to be derived from entrance fees, monthly
dues, and other pecuniary contributions of the members, and fines
imposed upon on them for violations of the articles; and, "whilst
six members of this institution unite for its continuance, it shall
not be broken."
For many years after the deed of Forrest to the trustees, the
land was used by the society for the burial of its members, and
also for the burial of any other colored inhabitants of the city,
upon the payment of certain fees. Since 1852 at least, fees so
obtained, instead of being applied to the use of the society, were
divided from time to time among its members. The last admission of
a new member was in 1870, and the members gradually dwindled in
number until 1882, when there were only three members, one being
Philip Wells, its President. For the five years before 1883, there
were 1,589 interments, and from January, 1883, to November 13,
1883, there were 560 bodies interred, many of them one upon
another. On November 13, 1883, further interments were prohibited
by the board of health, and none was made afterwards. It did not
appear that, since 1887, the society did anything, kept any
records, or held any meetings.
All the trustees named as grantees in the deed from Stephney
Page 165 U. S. 345
Forrest being dead, the defendant, Grimshaw, who was a
son-in-law of Mrs. Brooks, obtained in 1887 and 1888 conveyances to
himself, as follows: (1) Deeds from Mrs. Forrest and Mrs. Brooks of
their interests in the land; (2) a deed from Philip Wells, the
President of the society, purporting to convey all its and his
interests in the land; (3) deeds of the land from the heirs of the
trustees aforesaid.
In February, 1889, the board of health, upon the petition of
Grimshaw, claiming to have authority from the surviving members of
the society, ordered him to exhume all the bodies interred in this
burial ground, and to remove them to other cemeteries, and he did
so at his own expense, amounting, as he testified, to the sum of
$2,000.
The bill alleged that the plaintiffs and the defendants sued and
were sued in their own right, except Cummings, who sued as trustee
under the trust afterwards mentioned, and that, on March 20 and 27,
1889, the land in question was conveyed to him by the other
plaintiffs, by deeds which (as put in evidence at the hearing)
purported to convey that land to Cummings in fee,
"in and upon the trusts, nevertheless, hereinafter mentioned and
declared -- that is to say, in trust to sell and convey the same to
such person or persons, in fee simple or otherwise, and upon such
terms and conditions, as Franklin H. Mackey, of the District of
Columbia, shall in writing direct, and the proceeds of said sale to
distribute according to the terms of a paper of even date herewith,
and signed in duplicate by the party of the first part, one copy of
which is in the hands of the said Cummings and the other in the
hands of the said Mackey, and the purchaser or purchasers of said
property shall not be required to see to the application of the
purchase money."
The paper so referred to, concerning the distribution of
proceeds of sales, was not in the record transmitted to this
Court.
The bill further alleged that
"by virtue of said deeds, complainant Cummings now holds the
entire legal title in trust for the other co-plaintiffs to said
property, except the interest of the defendant, William H.
Grimshaw, and that a complete and perfect title to the same will be
held by the complainants when this Court has decreed the reverter
which complainants
Page 165 U. S. 346
are entitled to have declared by reason of the terms of the said
original deed from Stephney Forrest to said trustees."
The bill prayed that the land
"be decreed to have reverted to the heirs of Stephney Forrest by
reason of the terms and provisions and purposes of the original
conveyance of said Stephney Forrest, and the order of the municipal
authorities, and the carrying out of said order;"
that a commission be appointed to make partition of the land
between Grimshaw, as grantee of Mrs. Brooks, one of the heirs of
Stephney Forrest, and the plaintiffs, his other heirs; that the
deeds to Grimshaw from the heirs of the trustees be declared to be
a cloud upon the plaintiffs' title, and of no effect to pass any
title in the land, and be directed to be surrendered for
cancellation, and for further relief.
Grimshaw, in his answer to the bill, denied that Cummings sued
as trustee, and alleged that he sued in his own right and for his
own benefit, and at the hearing, in support of this allegation,
introduced a bill in equity, filed by Cummings alone April 16,
1889, similar to the present bill, except in alleging that, by the
deeds to him from Forrest's heirs the entire and full beneficial
interest and estate vested in him. That bill was dismissed by Mr.
Mackey, as solicitor for Cummings, on the same day on which he
filed the present bill as solicitor for the plaintiffs therein.
The answer further averred that the deeds to Grimshaw from the
heirs of the original trustees were procured by him at the instance
and for the benefit of the Union Beneficial Society, and he held
the land in trust for the society, and for no other use or purpose
whatsoever, and denied that those deeds were clouds upon the
plaintiffs' title; denied the plaintiffs' title, and denied that
any title vested in Stephney Forrest's heirs, by reverter or
otherwise, and averred that the deed from Forrest vested in the
trustees named therein an absolute and indefeasible estate in fee
simple, and that the society used the land solely for the purpose
of a burial ground as long as it was lawful so to use it, and only
ceased such use when compelled to do so by law. To this answer the
plaintiffs filed a general replication.
Page 165 U. S. 347
Mrs. Brooks never filed an answer, and the plaintiffs, before
the hearing, dismissed their bill as against her.
Upon the hearing, the Supreme Court of the District of Columbia
dismissed the bill
"without prejudice to the rights of the complainants to claim,
in any proper suit or proceeding, such right, if any, as the said
Stephney Forrest may have been entitled to, in said real estate, as
a member of said Union Beneficial Society."
The plaintiffs appealed to this Court.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
Stephney Forrest, in 1845, purchased a parcel of land in
Washington, and conveyed it to three persons, "trustees for the
Union Beneficial Society of Washington City,"
habendum to
them
"and their successors in office forever, for the sole use and
benefit of the Union Beneficial Society of the City of Washington
as aforesaid, for a burial ground, and for no other purpose
whatever."
Forrest died in 1855, and all three trustees afterwards
died.
The Union Beneficial Society was an unincorporated association
for the mutual aid of its members in case of sickness, and for
their burial in case of death. This land was used by the society
for a burial ground for nearly forty years, and then, by order of
the board of health, ceased to be so used, and all the bodies which
had been buried there were exhumed and removed to other cemeteries.
Grimshaw afterwards procured conveyances of the land to himself
from the heirs of the trustees named in Forrest's deed, as well as
from Forrest's widow and from Mrs. Brooks, one of his heirs, and
from Wells, the last President of the society, and one of its three
surviving members. And the society (which, by the terms of its
articles of association, was to continue so long as it had six
members)
Page 165 U. S. 348
does not appear to have since done any acts, held any meetings,
or kept any records, and was practically dissolved and extinct.
The present bill was filed by the other heirs of Forrest against
Grimshaw and Mrs. Brooks, praying for a decree that the land had
reverted to Forrest's heirs, and for a partition of the land
between the plaintiffs and Grimshaw, as grantee of Mrs. Brooks, and
for cancellation of the deeds from the heirs of the trustees to
Grimshaw, as being a cloud upon the plaintiffs' title, and for
general relief.
The original joinder of Mrs. Brooks as a defendant is
unimportant. By reason of having conveyed her right to Grimshaw,
she had no interest in the suit, and filed no answer, and the
plaintiffs, before the hearing, dismissed their bill as against
her.
Nor can the joinder of "Horace Cummings, trustee," as a
plaintiff in this bill affect the rights of the principal parties
to the suit. The deeds made to him by the other plaintiffs, two
months before this suit was brought, and produced at the hearing,
showed that the land was conveyed by them to Cummings in trust to
sell and convey it to such persons, and upon such terms and
conditions, as their solicitor should direct, and to distribute the
proceeds of such sale according to the terms of a paper, copies of
which were in the hands of the solicitor and of Cummings,
respectively. Although that paper is not in the record, the terms
of those deeds clearly show Cummings to have been a mere trustee to
bring suit and to sell the land for the benefit of the other
plaintiffs, and not in his own behalf, notwithstanding the
allegation in the bill thereafter filed by him alone, and
voluntarily dismissed upon the filing of the present bill, that, by
those deeds the whole beneficial interest and estate vested in him.
Perhaps, as suggested by the counsel of the appellee, the former
bill was dismissed for fear of the rule of law recognized in
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 63, that
a right of entry for breach of a condition subsequent cannot be
alienated.
The allegation in the answer that Forrest purchased this land in
behalf of the society and with its money is supported
Page 165 U. S. 349
by no competent and sufficient evidence. The only evidence upon
this point was the testimony, taken forty years after the
transaction, of Forrest's widow and daughter, respectively the
grandmother and the mother of Grimshaw's wife.
The first question presented in relation to this testimony is
whether the widow was a competent witness to prove admissions or
declarations supposed to have been made by her husband in
conversation with her.
At common law, upon grounds of public policy, husband and wife
(with some exceptions not here material) were not permitted, even
by consent, to give evidence for or against each other, or to
testify, even after the ending of the marriage relation by death or
divorce, to private communications which took place between them
while it lasted.
Stein v.
Bowman, 13 Pet. 209,
38 U. S. 222;
O'Connor v. Majoribanks, 4 Man. & Gr. 435;
s.c., 5 Scott N.R. 394; 1 Greenleaf on Evidence
§§ 334-337.
The Congress of the United States, by a clause originally
inserted in the Civil Appropriation Act of July 2, 1864, c. 210,
§ 3 , 13 Stat. 351, and embodied in § 858 of the Revised
Statutes of the United States, has enacted that there shall be no
exclusion of any witness in a civil action because he is a party
to, or interested in, the issue tried. But that clause has merely
removed all disqualifications of witnesses for interest, and does
not affect the exclusion of testimony of a husband or wife upon
grounds of public policy.
Lucas v.
Brooks, 18 Wall. 436,
85 U. S. 453;
Bassett v. United States, 137 U.
S. 496,
137 U. S.
505.
Congress on the same day passed another act, entitled "An act
relating to the law of evidence in the District of Columbia," by
which it was enacted
"that, on the trial of any issue joined, or of any matter or
question, or on any inquiry arising in any suit, action, or other
proceeding in any court of justice in the District of Columbia, or
before any person having by law, or by consent of parties,
authority to hear, receive and examine evidence within said
District, the parties thereto, and the persons in whose behalf any
such action or other proceeding may be brought or defended, and any
and all persons
Page 165 U. S. 350
interested in the same, shall, except as hereinafter excepted,
be competent and compellable to give evidence, either
viva
voce or by deposition, according to the practice of the court,
on behalf of either or any of the parties to said action or other
proceeding,
provided that nothing herein contained shall
render any person who is charged with any offense, in any criminal
proceeding, competent or compellable to give evidence for or
against himself or herself, or shall render any person compellable
to answer any question tending to criminate himself or herself; or
shall, in any criminal proceeding, render any husband competent or
compellable to give evidence for or against his wife, or any wife
competent or compellable to give evidence for or against her
husband, or in any proceeding instituted in consequence of
adultery; nor shall any husband be compellable to disclose any
communication made to him by his wife during the marriage, nor
shall any wife be compellable to disclose any communication made to
her by her husband during the marriage."
Act July 2, 1864, c. 222, 13 Stat. 374.
This act (except in the restriction to the District of Columbia)
was taken almost word for word from modern English statutes; the
first half of it (except the words "and any and all persons
interested in the same," who had been made competent witnesses by
the statute of 6 & 7 Vict. c. 85) from § 2 of the statute
of 14 & 15 Vict. c. 99, the first two clauses of the proviso
from § 3 of that statute, and the last two clauses, being
those concerning husband and wife, from the statute of 16 & 17
Vict. c. 83, § 3.
The same act has been reenacted in the Revised Statutes of the
District of Columbia with hardly any change, except in substituting
for the words "except as hereinafter excepted" the words "except as
provided in the following section," and in making the proviso a
separate section, omitting the words "provided that nothing herein
contained," and beginning with the words "Nothing in the preceding
section." Rev.Stat. D.C. §§ 876, 877.
The latter part, which constituted the proviso in the act of
1864, c. 222, and which now forms section 877 of the Revised
Page 165 U. S. 351
Statutes of the District of Columbia, is upon its face, and
according to its uniform construction in the courts of the District
of Columbia, not new and affirmative legislation, but wholly
negative, and by way of proviso or exception out of the enactment
which goes before, and therefore has no application to any cases
other than those in which the husband or wife called as a witness
is a party, in name or in fact to the suit, or interested in it,
and does not make a husband or wife, not a party to or interested
in the suit, competent to testify, before or after the death of the
other, to private communications between the latter and the
witness.
United States v. Guiteau, 1 Mackey 498, 547-548;
Clark v. Krause, 2 Mackey 559, 572;
Holtzman v.
Wagner, 5 Mackey 15, 16;
Beale v. Brown, 6 Mackey
574, 577.
See also Barbat v. Allen, 7 Exch. 609;
Percival v. Caney, 14 Jurist 1056, 1062, cited in 7 Exch.
611;
Alcock v. Alcock, 5 De G. & Sm. 671;
The
Queen v. Payne, L.R. 1 C.C. 349, 355;
The Queen v.
Thompson, L.R. 1 C.C. 377.
Stephney Forrest's widow was neither a party to nor interested
in this suit, having conveyed all her interest in the subject
thereof to the defendant Grimshaw before the suit was brought. She
was therefore incompetent to testify to private conversations
between her and her husband in his lifetime, and a conversation
between them in their own home, in the presence of no one but their
young daughter, who does not appear to have taken any part in it,
must be deemed to be a private conversation, within the rule.
Jacobs v. Hesler, 113 Mass. 157.
The daughter herself may have been a competent witness to such a
conversation. But her testimony, which amounted to no more than
that she heard her father, as he left home one morning, say that he
was going to the secretary of the society to get money to buy land
for the society, was clearly insufficient to prove that he bought
the land with money of the society, or that the society had any
greater or other title, legal or equitable, than appeared to be
conveyed to it by the deed made by him to, and accepted by, the
trustees in its behalf. Such slight testimony to a casual remark of
the
Page 165 U. S. 352
supposed trustee more than forty years ago falls far short of
the clear proof required by a court of equity whenever a trust in
real estate is sought to be implied, against the terms of a deed of
conveyance, by parol evidence of payment of the price by a third
person.
Prevost v.
Gratz, 6 Wheat. 481;
Slocum v. Marshall, 2
Wash. C.C. 397;
Smith v. Burnham, 3 Sumner 435.
We are then brought to the principal question in the case, which
is of the nature and effect of the deed from Forrest to trustees
for the Union Beneficial Society for a burial ground.
The first inquiry which naturally arises is whether the deed was
for a charitable use in the legal sense. If it was, the conveyance
would not be open to any legal objection by reason of the length of
time during which the trust might last, or because of the society
named not being a corporation.
Ould v. Washington
Hospital, 95 U. S. 303;
Russell v. Allen, 107 U. S. 163,
107 U. S. 171.
And the trustees, although the deed did not in terms run to their
heirs and assigns, would take the legal estate in fee.
Russell
v. Allen, above cited;
Potter v. Couch, 141 U.
S. 296,
141 U. S. 309;
Easterbrooks v. Tillinghast, 5 Gray 17, 21.
A grant for the maintenance of a churchyard or burial ground in
connection with a church or religious society, or of a public
burial ground, or a burial ground of all persons of a certain race,
class, or neighborhood might be considered as in the nature of a
dedication for a pious and charitable use.
Beatty v.
Kurtz, 2 Pet. 566,
27 U. S.
583-584;
Cincinnati v.
White, 6 Pet. 431,
31 U. S. 436;
Jones v. Habersham, 3 Woods 443, 470, and
107 U.
S. 174,
107 U. S.
183-184;
Dexter v. Gardner, 7 Allen 243, 247;
In re Vaughan, 33 Ch.D. 187.
By the Act of Congress of May 5, 1870, c. 80, § 5,
reenacted in the Revised Statutes of the District of Columbia,
provision has been made for the voluntary incorporation of cemetery
associations in the District of Columbia, and
"any person or persons desiring to dedicate any lot of land, not
exceeding five acres, as a burial ground or place for the interment
for the dead, for the use of any society, association or
neighborhood,"
may convey such land by deed to the District of Columbia,
"specifying
Page 165 U. S. 353
in such deed the society, association, or neighborhood for the
use of which the dedication is desired to be made, and thereby vest
the title to such land in perpetuity for the uses stated in the
deed."
16 Stat. 106, 107; Rev.Stat. D.C. §§ 594-604.
But the conveyance now in question, made to private persons, as
trustees twenty-five years before the passage of that act, was
expressed to be
"for the sole use and benefit of the Union Beneficial Society of
the City of Washington as aforesaid, for a burial ground, and for
no other purpose whatever."
The articles of association of that society appear to have
contemplated the burial of none but its own members, and the usage
which early sprang up of permitting the interment in its burial
ground of other inhabitants of the District of Columbia upon the
payment of certain fees appears to have been adopted not from any
charitable motive, but as a source of private profit to the members
of the association. It may be doubted whether, in the absence of
express statute, the burial ground of such a society can be held to
be a public charitable use.
See King v. Parker, 9 Cush.
71;
Donnelly v. Boston Catholic Cemetery, 146 Mass. 163;
Anon., 3 Atk. 277;
Pease v. Pattinson, 32 Ch.Div.
154;
Cunnack v. Edwards (1896), 2 Ch. 679;
In re
Buck (1896), 2 Ch. 727.
If it be assumed, however, as most favorable to the defendant,
that this deed created a charitable trust, it was not a grant
indicating a general charitable purpose and pointing out the mode
of carrying that purpose into effect, thus coming within the class
of cases in which courts of chancery, when the particular mode had
failed, have carried out the general purpose.
Jackson Mormon
Church v. United States, 136 U. S. 1,
136 U. S. 51-60;
Jackson v. Phillips, 14 Allen 539. But the trust was
restricted in plain and unequivocal terms to the particular society
to be benefited, as well as to the purpose of a burial ground;
adding (as if to put the matter beyond doubt) "and for no other
purpose whatever." The trust would end, therefore, at the latest,
when the land ceased to be used as a burial ground and the society
was dissolved.
Easterbrooks v. Tillinghast, above cited;
Reed v. Stouffer, 56 Md. 236, 254;
Second
Universalist
Page 165 U. S. 354
Society v. Dugan, 65 Md. 460;
In re Rymer
(1895), 1 Ch. 19, 31-32.
In
Easterbrooks v. Tillinghast, above cited, an
inhabitant of a town devised land to a trustee named, and his
successors to be appointed as provided in the will, in trust to
apply the income in support of the gospel and the maintenance of a
pastor or elder in a church already existing in the town, of a
certain faith and practice, so long as the members of that
church,
"or their successors, shall maintain the visibility of a church
in said faith and order, and uniting in fellowship and communion
with those who hold and practice said principles, and no
others."
Three years after the testator's death, the members of the
church, reduced to two in number, voted and resolved at a meeting
called by public notice that they would no longer endeavor to
maintain the appearance of a visible church, and declared the
church dissolved and extinct. The Supreme Judicial Court of
Massachusetts, speaking by Mr. Justice Metcalf, decided that the
trustee took an estate in fee, but that, the church having been
dissolved and having ceased to be a visible church, he held the
land for the devisor's heirs at law as a resulting trust. 5 Gray,
21.
In
Rawson v. Uxbridge, 7 Allen 125, cited by the
defendant, the deed was to a town of land already, as the deed
recited, "being improved for a burying place,"
habendum
"to the said Town of Uxbridge forever, to their only proper use,
benefit, and behoof, for a burying place forever." There were no
such negative words as in the deed now before us, "and for no other
purpose whatever." The action was at law, and the only question
argued or considered was whether the deed created an estate upon
condition subsequent. While deciding that it did not, Chief Justice
Bigelow said,
"If it be asked whether the law will give any force to the words
in a deed which declare that the grant is made for a specific
purpose, or to accomplish a particular object, the answer is that
they may, if properly expressed, create a confidence or trust, or
amount to a covenant or agreement on the part of the grantee."
7 Allen 130.
The somewhat similar cases of
Crane v. Hyde Park,
135
Page 165 U. S. 355
Mass. 147, and
Mahoning County v. Young, 59 F. 96, also
cited by the defendant, likewise turned upon a question of
forfeiture for breach of a condition subsequent in a deed to a
municipal corporation.
In the case at bar, the trust created by the deed having been
terminated, according to its express provisions, by the land
ceasing to be used as a burial ground, and the dissolution and
extinction of the society for whose benefit the grant was made,
there arises, by a familiar principle of equity jurisprudence, a
resulting trust to the grantor and his heirs, whether his
conveyance was by way of gift or for valuable consideration. 2
Fonblanque Eq. 116, 133, and notes; 2 Story, Eq.Jur. §§
1199, 1200; Hill on Trustees 113, 133;
Easterbrooks v.
Tillinghast and
Reed v. Stouffer, above cited.
The question suggests itself whether the case at bar falls
within the rule of law known as the "rule against perpetuities," by
which an estate, legal or equitable, granted or devised by one
person to another, which, by the terms of the instrument creating
it, is not to vest until the happening of a contingency which may
by possibility not occur within the period of a life or lives in
being (treating a child in its mother's womb as in being) and
twenty-one years afterwards, is void for remoteness, and
consequently a limitation over to a third person which may possibly
not take effect within the period is void, and the estate remains
in the first taker. That rule does not apply to a gift to a charity
with no intervening gift to or for the benefit of a private person
or corporation, or to a contingent limitation over from one charity
to another. But it does apply to a grant or devise to a charity
after one to a private person, as well as to a grant or devise to a
private person, although limited over after an immediate gift to a
charity.
Russell v. Allen, 107 U.
S. 163,
107 U. S. 171;
Jones v. Habersham, 107 U. S. 174,
107 U. S. 185;
McArthur v. Scott, 113 U. S. 340,
113 U. S.
381-382;
Brattle Square Church v. Grant, 3 Gray
142;
Theological Education Society v. Attorney General,
135 Mass. 285;
In re Tyler (1891), 3 Ch. 252;
In re
Bowen (1893), 2 Ch. 491.
But when there is no limitation over in the grant or devise, and
the grantor or devisor, or the heirs of either, claim the
Page 165 U. S. 356
estate not under the grant or devise, but because, by reason of
the failure thereof, the estate, legal or equitable, as the case
may be, reverts or results to him or them, the rule against
perpetuities is inapplicable.
Even when the first gift is strictly upon condition subsequent,
requiring an entry on the part of the grantor or devisor or his
heirs to revest the estate in him or them, the American courts have
treated their title as unaffected by the rule against perpetuities.
Cowell v. Springs Co., 100 U. S. 55;
Gray v. Blanchard, 8 Pick. 283;
Austin v.
Cambridgeport Parish, 21 Pick. 215;
Guild v.
Richards, 16 Gray 309;
Tobey v. Moore, 130 Mass. 448;
Gray on Perpetuities §§ 304-310.
But the deed in this case is clearly, in terms and effect, a
conveyance in trust, with no words apt to create a condition.
Stanley v.
Colt, 5 Wall. 119;
Barker v. Barrows, 138
Mass. 578;
Attorney General v. Wax Chandlers' Co., L.R. 6
H.L. 1. In such a case, it has been held both in this country and
in England that, upon the failure of the trust declared in the
deed, although depending upon a contingency which might not happen
within the period prescribed by the rule against perpetuities, the
resulting trust to the grantor and his heirs is not invalidated by
the rule.
Easterbrooks v. Tillinghast, above cited;
Stone v. Framingham, 109 Mass. 303;
Society v.
Boland, 155 Mass. 171;
In re Randell, 38 Ch.D. 213,
218-219;
In re Bowen (1893), 2 Ch. 491, 494. In
Randell's Case, Mr. Justice North said:
"In my opinion, a direction that in a particular event a fund
shall go in the way in which the law would make it go in the
absence of such a direction cannot be said to be an invalid gift,
or contrary to the policy of the law."
And in
Bowen's Case, Mr. Justice Sterling said:
"As property may be given to a charity in perpetuity, it may be
given for any shorter period, however long, and the interest
undisposed of, even if it cannot be the subject of a direct
executory gift, may be left to devolve as the law prescribes."
In the case at bar, our conclusions as to the effect of
Forrest's deed, assuming it to be in the nature of a valid
dedication for a pious and charitable use, may be summed
Page 165 U. S. 357
up as follows: the trustees named in the deed took the legal
estate in fee. The equitable estate in fee was from the beginning,
and always remained, in the grantor and his heirs. The trust
declared in the deed, for a burial ground for the Union Beneficial
Society, came to an end, according to its own express restriction
and limitation, by the land's ceasing to be used as a burial ground
and the dissolution of the society. Thereupon the trustees held the
legal estate in fee, subject to a resulting trust to the grantor's
heirs, unaffected by the rule against perpetuities, and the legal
estate of the trustees descended to their heirs and passed by the
deeds of the latter to the defendant charged with this resulting
trust.
The alternative that the trust expressed in Forrest's deed was
not a charitable use, but was void as tending to create a
perpetuity, and that the trustees, immediately upon the execution
and delivery of the deed to them, held the land subject to a
resulting trust for the grantor and his heirs, would be wholly
inconsistent with the position always taken by the defendant
Grimshaw and by the trustees and the society under whom he claims
title, and could not therefore inure to his benefit by way of
defense to this suit, on the ground of laches or otherwise. All
Forrest's heirs (except Mrs. Brooks, who had conveyed her title to
the defendant Grimshaw) have joined as plaintiffs in this bill to
enforce the resulting trust in their favor. Both they and Grimshaw
had acted upon the theory that the deed of Forrest created a valid
trust for the Union Beneficial Society. The plaintiffs made no
claim to the land so long as it was used by that society for a
burial ground. And neither the trustees nor Grimshaw claiming under
them contended that they took an absolute title, free from the
trust expressed in Forrest's deed. The real controversy between the
plaintiffs and Grimshaw was as to the construction of the deed, and
as to the duration of the express trust therein declared for the
Union Beneficial Society.
The objection that the plaintiffs' only remedy is at law is
unavailing. The bill, besides specifically praying that the land be
decreed to have reverted to Forrest's heirs and that
Page 165 U. S. 358
a partition be ordered to be made between the defendant
Grimshaw, as grantee of Mrs. Brooks, one of Forrest's heirs, and
the plaintiffs, his other heirs, and that the deeds to Grimshaw
from the heirs of the trustees be declared to be a cloud upon the
plaintiffs' title, contains a prayer for general relief, under
which the court may grant any relief justified by the facts stated
in the bill and appearing in proof.
Jones v. Van Doren,
130 U. S. 684,
130 U. S.
692.
Upon the allegations of the bill and the proofs at the hearing,
the trustees named in Forrest's deed, and their heirs, and Grimshaw
as grantee of the latter, took the legal title in fee in any aspect
of the case, subject to a resulting trust for the heirs of the
grantor. A resulting trust is a creature of equity, and can be
enforced in a Court of Chancery only.
Wilkins v.
Holman, 16 Pet. 25,
41 U. S. 59.
Moreover, the title of the plaintiffs appearing upon the
allegations and proofs to be purely equitable, the bill may also be
maintained for partition of the land. Act of August 15, 1876, c.
297, 19 Stat. 202;
Willard v. Willard, 145 U.
S. 116;
Lucas v. King, 10 N.J.Eq. 277.
The court, having acquired jurisdiction of the bill upon both
these grounds, was authorized to retain it for the purpose of
administering complete relief between the parties, including the
question of any allowance to which Grimshaw might be entitled for
the expense incurred in the removal of the bodies from the burial
ground to other cemeteries, or upon any other account.
The decree below appears to have proceeded upon the
misapprehension that the heirs of Forrest were not entitled to any
relief, unless by reason of his membership in the Union Beneficial
Society.
Decree reversed, and case remanded for further proceedings
in conformity with this opinion.
