Tumlin v. Troy Bank & Trust Co.

LAWSON, Justice.

The application for rehearing in this cause has been pending for a long time. In a large measure, I am responsible for the delay. No injury could result to the parties because of the delay, since the period for the payment of the bequests to the individuals named in the will has not expired.

It is unusual for counsel to entertain the idea that every member of the court should write his own views in every case. Of course, that is not the practice of this or any other appellate court. The nature and volume of the work does not permit such treatment of each case. But the brief filed by counsel for appellants in support of their application for rehearing is an unusual one in other respects. I will not attempt to characterize it or comment further on the tenor of the brief, as copies of it have been widely circulated among the bench and bar.

Because of the general tenor of the brief and the fact that it has been so circulated, I decided to respond to the application for rehearing and during the long period in which the application has been pending here, I have worked on it from time to time as my other duties on the court would permit.

On the first appeal, we upheld the validity of the trust provisions of the will there under attack. Henderson v. Troy Bank & Trust Co., 250 Ala. 456 , 34 So.2d 835 . All of the Justices concurred.

On the original submission of this appeal, I based my conclusion that the so-called school trust did not violate the rule against perpetuities on the opinion written on the first appeal.

In the early case of Williams v. Pearson, 38 Ala. 299 , Justice WALKER, writing for the court, observed: "Few questions (have been the subject of more laborious investigation, or given rise to greater conflict of opinion, than that which relates to the origin of the peculiar jurisdiction of equity in respect to charities.” With the passing years, the growth of decisional law on the subject, and legislative enactments in some of the states, all aspects of the problem have become more complex and difficult when the cases from other jurisdictions are considered.

After following the trail blazed and charted by counsel to practically all parts of the English-speaking world, I have rc *265 turned to- the opinion in Williams v. Pearson, supra, for the pronouncement of certain principles which, in my opinion, bear heavily on some of the questions presented in this case.

Before quoting from the opinion in that case, I think it advisable to^ state the facts out of which that litigation arose, as well as the questions presented for decision.

Zealous Taylor died in February, 1851, having executed and published his last will and testament, which was dated the 8th day of July, 1848, and duly admitted to probate after his death. By the first clause of his will, the testator directed his debts to be paid. The second, third, fourth and fifth clauses gave several specific legacies. The sixth and seventh clauses were in the following words:

“Item sixth. And the residue of my property, 'both real and personal, I will and bequeath to my beloved daughter, Sally Ann Taylor, and the begotten heir or heirs of her body; consisting of between six and seven hundred acres of land, adjoining the tract on which I live, besides the dower in Matthew Taylor’s land, together with thirteen negroes, namely, (specifying their names) together with their increase. It is my will, that the balance of my estate be sold, on a credit of twelve months, and the proceeds, after paying my just debts, to go- to my daughter, Sally Ann Taylor, except my two' best beds, bedsteads, and furniture, and all my made bed-covers, her mother’s saddle, all my trunks and books, which are to be exempt from sale, and to be well taken care of for my daughter.

“Item seventh. I do hereby constitute and appoint my friends and neighbors, Vincent Bunting and Joel E. Pearson, the executors of this my last will and testament; and it is my will, that they make no return of my estate until it is ready for final settlement, and that the inventory, account of sales, and the account-current of my estate, be returned at the same time (final settlement), so that all the papers may be found together; and it is my will, that my executors settle my estate as soon as the nature of the case will admit of; and, on final settlement of my estate by my executors with the court, my will is, that my friend Vincent Bunting take the guardianship of my daughter, Sally Ann Taylor, and the care of her property ; and that her guardian and Joel E. Pearson, and their wives, take charge of my daughter; and my will is, that she remain at Joel E. Pearson’s, and be sent to school with his daughters, and be treated as his own daughters, and for him to' be paid whatever is right for her board, clothing, and medical aid; that Mrs. Pearson take one of her beds and half her bedclothes, and Mrs. Bunting take the other half, etc. It is my will for her to have a good education as her property will admit of; and that her guardian hire out her negroes, publicly or privately, as he may see proper, and for them not to be hired out on the west side of the river, nor in the prairies any where, as I want good care taken of them, and want them well clothed, shod, and good bedclothes procured for them. Also1, I want my lands, orchards, and grove taken good care of, as I want all the above t0' be beneficial to my daughter when she is in a situation to receive them. And if she should die without a surviving heir or heirs of her body, my will is, that all her property shall be sold, on a credit of one, two, and three years installments, and all her estate to' be equally divided into' two parts; one half of said estate I loan to Pilgrim’s Rest Association, to' be received by said association, and loaned out by commissioners to be appointed by said association, at eight per cent, per annum, and said interest fi> be equally divided annually between the ministers having charge of churches in said association; and the other half I loan to Vienna and Cochran’s Mill Beat; and my ivill is, that three commissioners be elected by a general vote of the two beats, to receive the money, by their giving good and sufficient security, in double the amount zvhich they may receive, to the judge of the county coiirt of Pickens county; and said com *266 missioners to loan out said money, at eight per cent, interest, and the said interest to be collected annually, and applied by said commissioners to the education and tuition of all the pauper and poor children of said beats, whose parents are not able to support them." (Emphasis supplied.)

Both of the executors named in the will qualified and took on themselves the execution of the trust. On the 30th day of June, 1853, Bunting made a final settlement, resigned his office of executor, and renounced the guardianship of Sally Ann Taylor. At the same time Pearson made a partial settlement, giving a new bond, and qualified as sole executor and also- qualified as guardian of Sally Ann Taylor.

In October, 1857, Sally Ann Taylor died intestate, unmarried, and under the age of twenty-one years. On the 11th day of January, 1858, Pearson made a final settlement ■of his gardianship of her estate. On the 24th day of December, 1859, letters of administration on the estate of Sally Ann Taylor were granted to- Mrs. Dicey Williams. An examination of the original transcript .shows that Mrs. Dicey Williams was the sister of Zealous Taylor, the testator, and an aunt of Sally Ann Taylor.

Thereafter, on April 28, 1860, Mrs. Dicey Williams filed a bill in equity in the chancery court of Pickens County against Joel E. Pearson as the guardian of Sally Ann Taylor, deceased, and as the executor of Zealous Taylor, deceased, wherein the complainant sought an account and settlement of all of Pearson’s acts as executor and guardian, insisting that the settlement of his guardianship was void because no' administrator of the ward’s estate had been appointed and that the bequests to charitable uses, contained in the seventh clause of the testator’s will, were invalid.

The chancellor held, on demurrer, that the executory bequests were valid and included all the property devised and bequeathed to Sally Ann Taylor, with the rents, income and profits therefrom remaining undisposed of at her death; and, consequently, that the complainant had no interest which she could assert by bill. The bill was dismissed. From that decree the complainant, Mrs. Dicey Williams, appealed to this court.

This court upheld the validity of the bequests to charitable uses, but reversed the decree appealed from so far as it held that the charitable bequests embraced not only the corpus of the property devised to the daughter, but also all the rents, profits and income thereof left undisposed of by her at her death.

The opinion shows that it was not denied by the parties to the appeal that, according to the law of charitable uses, as administered in the English court of chancery, theexecutory bequests contained in the seventh item of the will would be upheld.

The contention of appellants as to the invalidity of the charitable bequests is set out in the opinion in the following language, 38 Ala. at page 303 :

“ * * * But it is insisted, that the authority of the English court of chancery, in regard to donations to charitable uses, so far as it differs from the power exercised in. other cases of trust, is either derived from the statute of 43d Elizabeth, ch. 4, known as the ‘statute of charitable uses,’ or belongs to the chancellor as a branch of the prerogative power of the king; and that apart from the prerogative power with which the chancellor is clothed, and independently of the statute of Elizabeth, the jurisdiction of the court of chancery, over bequests and trusts for charity, is precisely the same as over bequests and trusts for other lawful purposes, and must be exercised upon the same principles, and by the same rules. It is further insisted, that the statute of 43d Elizabeth is not in force here; and that this being so, and inasmuch as our chancery courts are not clothed with the prerogatives of the crown, and exercise no other than judicial power, it follows, that the English law of charitable uses, so far as it differs from the law governing bequests and trusts for other lawful purposes, cannot be recognized by our courts * * * ”

*267 The writer of the opinion then observed, 38 Ala. at pages 303-304:

“ * * * If these propositions can be maintained, it results, that the validity of these bequests must depend upon the principles applicable to bequests and trusts in general, and not upon the peculiar doctrines which prevail in England in regard to charitable donations, as distinguished from gifts for other purposes; and consequently, if the bequests would have been void, had their purposes not been charitable, the fact that their purposes are charitable does not make them valid.”

The writer of the opinion then proceeds to recognize the conflict of authorities, pointing out that many eminent jurists sustain the view contended for by counsel for appellant. Among the cases cited as supporting that view is the case of Owens v. Missionary Society, 14 N.Y. 380 .

It is then pointed out that “another class of jurists maintain, that the English law of charitable uses does not derive its origin from the statute of the 43d Elizabeth, nor depend upon it; but that at a remote period in English judicial history it was en-grafted upon the common law, its general maxims being derived from the civil law; that the statute of Elizabeth introduced no new principle, but was designed to afford a new and less dilatory mode of establishing charitable donations, which were understood to be valid by the laws antecedently in force; and that, independently of the statute of Elizabeth, and apart from the royal prerogative, there is an inherent jurisdiction in equity to establish and enforce devises and grants to charities, which, but for the charitable feature, would he void.” 38 Ala. at pages 304-305.

This court refused to follow what I shall call the New York rule. So it may -be well to observe at this point that' I see no occasion to discuss the early New York cases pressed upon us by counsel for appellants, or cases from other jurisdictions holding to like effect.

I have heretofore shown what the New York rule was and that it was not followed by this court in Williams v. Pearson, supra, appears' from the following language in the opinion, 38 Ala. at page 305 :

“Our investigation of the cases has satisfied us, that the current of American authorities is in favor of the doctrine, that trusts for charitable uses are favored by courts of equity, and that, independent of the statute of Elizabeth, and of the prerogative power, there is an original and inherent jurisdiction in those courts to sustain, on account of their charitable purposes, trusts which, but for their charitable feature, would be held void. (Authorities cited).”

The writer of the opinion in Williams v. Pearson, supra, then proceeded to state what I shall call the Alabama rule, 38 Ala. at pages 306-307:

“In Carter v. Balfour’s Adm’r ( 19 Ala. 814 ,) this court, after a careful examination of the subject, gave its sanction to the doctrine just stated. In that case, the bequests, which were to certain unincorporated charitable societies, were plainly void, upon the principles applicable to ordinary bequests and trusts. (Authorities cited.) But it was held, that being charitable bequests, a court of equity could give them effect by virtue of its common-law and judicial powers, without claim to any prerogative power, and without invoking the aid of the statute of 43d Elizabeth. A decision, thus deliberately made, upon a question involved in so much doubt and obscurity, and upon which so much may be said on both sides, we are not disposed to disturb. Without intimating, therefore, what our opinion would be if uncontrolled by any former adjudication, we content ourselves with saying, that it must be regarded as the settled law of this State, that charitable donations are so far exempted from the rules applicable to other trusts, that it is not necessary to their validity that there should be a grantee or devisee capable of taking or holding by law, or that there should be a cestui que trust so definitely described as to enable a court of equity to execute the trust u-pon its *268 ordinary principles. Such we understand to be the doctrine to be deduced from the case of Carter v. Balfour’s Adm’r, supra, and the other authorities above cited.” (Emphasis supplied.)

That the power of a court of equity of this state to uphold the validity of charitable bequests of the kind above described is not based on the so-called prerogative power or the cy pres power clearly appears from the following language in the opinion, 38 Ala. at pages 307-308:

“It will be perceived, that we do not recognize the whole of the English doctrine of charities as in force here. A considerable portion of it is not adapted to our political condition, and has been rejected by our courts. In England, whenever anything is given to charity, and no charity appointed, — that is to say, where the testator declares his intention in favor of charity indefinitely, without any specification of objects; or where the charity which is appointed is superstitious, the power of appointment vests in the king as pater patriae, and is exercised by him through the chancellor. (Authority cited) So, likewise, when a definite object of charity is specified, which fails, or becomes impracticable, so that the fund cannot be applied to the charity intended by the testator, the court will, under the doctrine of cy-pres, apply it to some kindred or analogous object of charity. The power exercised by the English court of chancery, in the two classes of cases just mentioned, is not judicial power, and does not belong to our courts. (Authorities cited) But, the cy-pres doctrine and the prerogative power to carry out indefinite charities being excepted, the law of charities, as administered in the English court of chancery, is substantially our law.

"Accordingly, when an ascertainable object, recognised as charity, is designated by the donor, in general or collective terms, — as the poor of a given county or parish, or the clergymen of a particular denomination having change of churches within a specified district, the gift or legacy will be upheld by a court of equity. Nor is it any objection to the validity of such a gift, that the donor has appointed no trustee, or that the tnistee appointed is incapable of taking the legal interest. If the object of a charitable donation can be ascertained, the want of a trustee will be supplied by appointment by a court of equity. (Authorities cited)” (Emphasis supplied.)

At this point I wish to state again that I fully recognize that the holding in Williams v. Pearson, supra, is clear to the- effect that the prerogative power and the cy pres power, as those powers are defined in the opinion, are not possessed by the chancery courts of this state.

But the fact remains that this court recognized that the courts of equity of this state possess a power, not labeled or named, to carry out the charitable bequests of a will when an ascertainable object, recognized as charity, is designated by the donor, in general or collective terms, as the poor in a given county or parish, or the clergymen of a particular denomination having charge of churches within a specified district; and in the exercise of that power, if the object of the charitable donation can be ascertained, the want of a trustee will be supplied by appointment of the equity court.

Having determined that such power was vested in a court of equity and that such power was not the prerogative or cy pres power, the court was then confronted with the question as to whether or not the beneficiaries of the charitable bequests contained in Item Seventh of the will were so designated by the donor that the power could be exercised. On that point the opinion in Williams v. Pearson, supra, reads, 38 Ala. at page 308 :

“In both of the bequests under consideration, the objects of the testator’s bounty are so designated that they may be readily found. It is plainly to be inferred from the language used, that ‘Pilgrim’s Rest Association’ is a society which extends over a particular section of country; and the fund is ‘to be equally divided annually between the *269 ministers having charge of churches in said association.’ In the other bequest, the beneficiaries named are ‘all the pauper and poor children’ of two designated beats, ‘whose parents are not able to support them.’ When this will was executed, a beat in this State was a well-known legal subdivision of a county, corresponding to the townships or towns in some other States. It is clear, upon the principles above laid down, and also according to the adjudged cases, that, in both instances, the testator’s designation of the objects of his bounty is sufficiently specific, and that the bequests are valid. (Authorities cited)” (Emphasis supplied.)

My understanding of the holding in Williams v. Pearson, supra, is as follows:

1. Alabama does not follow the rule of the early New York cases and cases from other states to the effect that the jurisdiction possessed by chancery courts over charitable trusts is limited to that which is exercised in England over trusts in general, when the state chancery courts are not endowed with any portion of the prerogative power and where the statute of Elizabeth is not in force.

2. Chancery courts in Alabama do not possess the so-called prerogative power — ■ that is, where the testator declares his intention in favor of charity indefinitely without any specification of objects, or where the charity which is designated is suspicious, the power of appointment vests in the king as pater patriae, which he exercises through his chancellor.

3. Chancery courts in Alabama do not possess the so-called cy pres power — that is, when a definite object of charity is specified, which fails or becomes impracticable, so that the bequest cannot be applied to the charity intended by the testator, the chancery court has the power to apply the bequest to some kindred or analogous object of charity.

4. With the exception of the prerogative power and the cy pres power as those powers are defined and explained in the opinion, the law of charities as administered in the English court of chancery is substantially our law.

5. That aside from the prerogative power and the cy pres power, and independent of the statute of Elizabeth, there is an original and inherent jurisdiction in the chancery courts of this state to sustain, on account of their charitable purposes, trusts which, but for the charitable feature, would be held void.

6. While this jurisdiction or power is definitely recognized, no attempt is made to define it or give it a specific name. It seems to have been considered as a part of the original and inherent jurisdiction of the English chancery courts.

7. In Alabama, charitable donations are so far exempted from the rules applicable to other trusts that it is not necessary to their validity that there should be a grantee or devisee capable of taking or holding by law, or that there should be a cestui que trust so definitely described as to enable a court of equity to execute the trust upon its ordinary principles.

8. When an ascertainable object, recognized as charity, is designated by the donor in general or collective terms, the gift or legacy will be upheld by a court of equity in this state.

9. A bequest is valid which is in the following language: “ * * * and the other half I loan to Vienna and Cochran’s Mill Beat; and my will is, that three commissioners be elected by a general vote of the two beats, to receive the money, by their giving good and sufficient security, in double the amount which they may receive, to the judge of the county court of Pickens county; and said commissioners to loan out said money, at eight per cent, interest, and the said interest to be collected annually, and applied by said commissioners to the education and tuition of all the pauper and poor children of said beats, whose parents are not able to support them.”

10. Although the language used by the testator was that he loaned the money to the two beats, the beneficiaries were all the pauper and poor children of the two beats whose parents were not able to support them.

*270 11. Such bequest was valid although the testator stated it to be his “will” (1) that three commissioners be elected by a general vote of the two beats to receive the money; (2) that the commissioners so elected give good and sufficient security; (3) that the commissioners so elected loan out the money at eight per cent to be collected annually, — matters that a court of equity could not enforce in accordance with the “will” of the testator.

The principles announced in Williams v. Pearson, supra, in 1862 were, in my opinion, the law of this state in 1937 when Governor Henderson died. .

In Johnson v. Holifield, 79 Ala. 423 , the principles announced in Williams v. Pearson, supra, were reaffirmed, but the bequest was held invalid on the ground that “the bequest under consideration possesses none of the elements of a charitable use.”

The holding of the majority of the Justices in Crim v. Williamson, 180 Ala. 179 , 60 So. 293 , does not, in my opinion, reflect in any way upon the principles laid down in Williams v. Pearson, supra. The bequest held to be invalid gave to the trustees “an unbridled discretion to devote the fund to ‘worthy objects of charity,’ thus vesting in them the sole power to determine who or what may be worthy objects of charity and without restriction or limitation as to individual, class, condition, or location.”

This is certainly not in conflict with the holding in Williams v. Pearson, supra, to the effect that a bequest is valid where the objects of the testator’s bounty are so designated that they may be readily found and that when an ascertainable object, recognized as charity, is designated by the donor, in general or collective terms, the gift or legacy will be upheld by a court of equity.

The distinction between the two cases is pointed out by Justice SAYRE in the case of Johns v. Birmingham Trust & Savings Co., 205 Ala. 535 , 88 So. 835 , where the principles enunciated in Williams v. Pearson, supra, were not only reaffirmed, but applied. I point out that Justice SAYRE concurred in the holding of the majority in Crim v. Williamson, supra.

The holding in King v. Banks, 220 Ala. 274 , 124 So. 871 , is not in conflict with the principles announced in Williams v. Pearson. In the King case the grantee in the deed was a definite object of charity, a Methodist school, which had failed, and under the rule announced in Williams v. Péarson, our equity courts not possessing the cy pres power, the use of the property could not be diverted to the public schools, a use not contemplated by the settlors of the trust.

In the opinion written on the first appeal, we upheld the school trust as against the contention that the rule against the perpetuities was violated, on the following constructions placed on the will:

1. The beneficiary of the school trust is not the “Charles Henderson Educational Association,” but “the part of the public to be benefited.”

2. The equitable estate vested in “the part of the public to be benefited” immediately upon the death of the testator.

As going to show that we were in error in so construing the will, it is stated in brief of appellants:

“In dealing with the rule against perpetuities every intendment must be indulged against the possibility of vesting — that is, to defeat, not to uphold, the intention of the testator. That is the reason why so many errors are committed in dealing with the rule against perpetuities; because, as Mr. Gray says in his preface, ‘the reasoning is unlike that with which lawyers are most familiar.’

“ ‘The rule against perpetuities is not a rule of construction but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in the will or instrument is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied.’ Gray, Section 629.”

I do not understand it to be the law of this state that “in dealing with the rule *271 against perpetuities every intendment must be indulged against the possibility of vesting — that is, to defeat, not to uphold, the intention of the testator.” In Edwards v. Bibb, 43 Ala. 666, 668-672 , wherein the rule against perpetuities was directly involved, it was said:

“In the construction of wills, very great indulgence is allowed in order to sustain and carry out the intention of the testator, if that intention does not violate the policy of the law * * *

* ifc. * * * *

“But it is said, that the legal intent of the testator must be ascertained from the proper legal construction of the language he has used to indicate his intent. And in this case the language used imports an illegal intent. That' by the use of the words ‘male issue,’ or the word ‘issue,’ without any words limiting this expression to the issue living at the death of said Thomas Bibb, a perpetuity is intended, which is illegal; because such issue might not fail for many generations after the death of Thomas Bibb, the first taker of the estate under the devise; and this would be too remote a postponement of the estate intended to be given to Porter Bibb. The law requires that the estate intended to be given to Porter Bibb must vest in twenty-one years and the fraction of a year, sufficient to cover the birth of a posthumous child, after the death of Thomas Bibb, or the behest is invalid. 4 Kent. 267, 271, marg.

“The word ‘issue’ may have this very general meaning, or it may have a more limited one. It may mean children of the first taker, or it may mean issue living at his death. 6 Bac.Abr., Bouv. 147; 7 Ves. 522; 3 Ves. & B. 67. If the testator used it in either of these imports, it is the duty of the court so to construe it. The construction of words in a will is much less technical than the use of the same words in a deed. In the will, such technical import may be altogether disregarded, if they were not used by the testator in a technical sense. Wills are the least technical of all legal instruments for the conveyance of estates. Each will must stand or fall upon its own facts * * * ” (Emphasis supplied.)

In Henderson v. Henderson, 210 Ala. 73 , 97 So. 353 , wherein the rule against perpetuities was directly involved, it was said: “It will be further noted that the rules of law favor the vesting of estates, for the reason that estates should become ■absolute at the earliest moment, and doubtful or obscure clauses have been so construed as to aid such instruments.”

In numerous cases we have said the law favors the construction by which the estate is vested rather than defeat it, and that the intent to postpone vesting must be clear and not arise from mere conjecture.

In St. Louis Union Trust Co. v. Bassett, 337 Mo. 604, 621 , 85 S.W.2d 569, 578 , 101 A.L.R. 1266 , it was said: “The rule against perpetuities is not a rule of construction, but a rule of property, yet ‘if there are two possible constructions of a testament, one which would permit effect being given to the whole will and the other which would result’ in defeating the will, ‘preference will be accorded to the construction which will uphold the will.’ ”

In Warren v. Duval, 124 Conn. 448 , 200 A. 804 , the rule is thus stated: “Where two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity while by following the other the bequest would be valid, the latter mode must be preferred.”

To like effect see Jenson v. Nelson, 236 Iowa 569 , 19 N.W.2d 596 ; Goodloe’s Trustee & Adm’r v. Goodloe, 292 Ky. 494 , 166 S.W.2d 836 ; Jewett v. Harvie, 183 Va. 734 , 33 S.E.2d 213 ; In re Olmstead’s Will, 131 Misc. 238 , 226 N.Y.S. 637 ; Klingman v. Gilbert, 90 Kan. 545 , 135 P. 682 ; In re James’ Estate, 245 Pa. 118 , 91 A. 511 ; Bratton v. Graham, 146 Miss. 246 , 111 So. 353 ; In re Phelps’ Estate, 182 Cal. 752 , 190 P. 17 ; Taylor v. Crosson, 11 Del.Ch. 145 , 98 A. 375 ; Closset v. Burtchaell, 112 Or. 585 , 230 P. 554 ; In re Peck’s Estate, 96 Vt. 183 , 118 A. 527 ; Reese v. Reese, 190 Md. 311 , 58 A.2d 643 .

*272 There is another rule of construction long recognized in this state which is to the effect that the law presumes that when a testator undertakes to make a will disposing of all of his property, he did not intend to die intestate as to any of it or during any period of time. Roberts v. Cleveland, 222 Ala. 256 , 132 So. 314 .

But the cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided it is consistent with the rules of law. O’Connell v. O’Connell, 196 Ala. 224 , 72 So. 81 . Each will presents its own inquiry, in which testator’s intention controls. Meglemry v. Meglemry, 222 Ala. 229 , 131 So. 906 .

In Castleberry v. Stringer, 176 Ala. 250, 255 , 57 So. 849, 850 , it was said: “ ‘In endeavoring to construe a will so as to ascertain the intention of the testator, the courts will put themselves as far as possible in the position of the testator by taking in consideration his modes of thought and the circumstances surrounding him at the time of the execution of the will. Thus courts will consider the condition of his family and estate, the comparative amounts of realty and personalty, his affection for the legatees, his social relations,’ etc.”

It is said in brief: “The upholding of a direction to pay to an association not in existence and which by possibility may not be formed, if ever, within the period of the rule against perpetuities, is an application' of the cy pres doctrine.”

Ifthe will is construed as showing that the “Charles Henderson Educational Association” is the beneficiary of the school trust, then I agree with the statement above quoted.

But I do not think the will should be so construed. The Association, under the terms of the will, is not to perform functions similar to a hospital, college or like eleemosynary institution. Its functions are purely administrative.

• The word “gift” is not used in connection with the school trust. Testator did provide that after the Association is formed the trustee “pay” to it the income of the estate from time to time as needed. But this provision to pay to the Association does not «require a construction that the Association is the beneficiary of the school trust. The case of Thomas v. Bryant, 185 Va. 845 , 40 S.E.2d 487 , 169 A.L.R. 257 , cited and quoted from in the opinion on first appeal, seems to me to be directly in point. And in Williams v. Pearson, supra, the language used by the testator was ‘‘and the other half I loan to Vienna and Cochran’s Mill Beat; and my will is, that three commissioners be elected by a general vote of the two. beats, to receive the money, by their giving good and sufficient security, in double the amount which they may receive, to the-judge of the county court of Pickens county ; and said commissioners to loan out said money, at eight per cent, interest, and the said interest to be collected annually, and applied by said commissioners to the education and tuition of all the pauper and poor children of said beats, whose parents, are not able to support them.” Although,, as shown above, the testator stated that he loaned the money to the two beats and that it should be received by the commissioners: to be elected, the court did not hold that the beats or the commissioners were the-beneficiaries of the trust.

The conclusion reached in the opinion written on the first appeal to the effect that the beneficiary of the school trust is “the part of the public to be benefited” is, in my opinion, correct. Perhaps it might have been said that the beneficiaries are “the school children of Pike County.” I realize the fact that cases from some other states are not in accord with this view, but the construction is fully in accord with that reached by the Virginia court in Thomas v. Bryant, supra, and by this court in Williams v. Pearson, supra.

But appellants say that even if the will1 is subject to the construction that testator intended that the school children of Pike County be the beneficiaries of the school trust, the equitable estate did not vest in them immediately upon the death of testator, as was held in the opinion written on first appeal.

The fact that testator provided that his, trustee pay the income of the estate to the Association after it is formed is not incon *273 sistent with the construction that the equitable estate vested in the beneficiary at time of testator’s death. Thomas v. Bryant, supra; Williams v. Pearson, supra; Curtis v. Maryland Baptist Union Association, 176 Md. 430 , 5 A.2d 836 , 121 A.L.R. 1516 ; Gilmore v. Gilmore, 197 Ga. 303 , 29 S.E. 2d 74 . The case of Thomas v. Bryant, supra, is fully treated in the opinion written on first appeal and I have heretofore quoted at length from Williams v. Pearson, supra.

The case of Maryland Baptist Union Association, supra, was decided in April, 1939, before the legislature of Maryland had conferred cy pres power upon the equity courts of that state. See Article 16, § 295, Annotated Code of Maryland 1951, the provisions of which became effective in 1945.

The provisions of the will necessary to an understanding of the holding of the Maryland court are as follows:

“Fifth, I hereby instruct my executor to put in trust all bonds and cash in bank of which I may die seized and possessed, the annual income from same to be divided equally between my brother, Charles Hall, and sister, Laura Wimbrow, as long as they live, and at the death of either, the survivor to enjoy the whole income for the remainder of his or her life, at which time provision is hereinafter devised.

“Sixth, I give to the Maryland Baptist Union Association, after the death of my brother and sister, as set forth in the preceding item, the bonds and money which are left in trust, provided they will raise within twelve months a like amount to build an Orphan’s Home somewhere in the State of Maryland; but if they do not raise an amount to equal the amount in trust in twelve months, I instruct that this amount be left in trust until the income added to the principal shall make a like amount, thus doubling the principal, at which time I give to the said Maryland Baptist Union Association to enjoy absolutely, for the purpose of building an Orphan’s home in the State of Maryland.” ( 176 Md. 430 , 5 A.2d 838 , 121 A.L.R. 1520 )

It was held:

“The rule against perpetuities is directed against the vesting of interests at a future date and has no application to interests which are already vested. Miller, Construction of Wills, Sec. 322. And the word ‘vest’ as used in the law of property ‘signifies the fixation of a present right to the immediate or future enjoyment of property’. Safe Deposit & Trust Co. v. Sheehan, 169 Md. 93, 107 , 179 A. 536, 543 . The law favors the early vesting of estates, and •as a general rule Courts will when there is more than one period mentioned adopt the earlier one, unless this contravenes the intent of the testator or donor as revealed by the terms of the instrument. Miller, Construction of Wills, Sec. 226. The general principle is that ‘any devise or bequest in favor of a person or persons in esse, whether such persons be individualized or treated as a class, confers an immediately vested interest upon the death of the testator, although the time of possession or enjoyment may be postponed, unless there be some clearly expressed desire or some manifest reason for suspending or deferring the time of vesting.’ Ibid., Sec. 227.

“Maryland Baptist Union Association did not, in accordance with the terms of the sixth item of testator’s will, raise within twelve months a like sum to build an Orphans’ Home in Maryland, and it is argued from this that the trust may during the period of accumulation continue for such time as to violate the rule. But it is not the duration of the trust that determines whether the will is violated. Miller', Construction of Wills, Sec. 326; Turner v. Safe Deposit & Trust Co., 148 Md. 371 , 129 A. 294 .

“No provision appears in the will to indicate that the intention of the testator was to postpone vesting the estate in Maryland Baptist Union Association, and this being true, it would seem that under the settled rules of construction, to which reference has been made, that the Association’s *274 right to receive the benefits of the bequest vested at the death of the testator, the enjoyment being postponed during the lives of the life tenants and, as it develops, during the period of accumulation. This view certainly does no violence to- the language used by the testator. Cole v. Safe Deposit & Trust Co., 143 Md. 90, 94 , 121 A. 911 . See also subsection (a) to note 89, 48 C.J., page 990; Tayloe v. Mosher, 29 Md. 443, 451 ; Buck v. Lantz, 49 Md. 439, 445 .

“We are therefore of the opinion that assuming the Maryland Baptist Union Association had power to take the bequest the Chancellor was correct in holding that the rule against perpetuities had no application to the 'bequest under consideration, because the same vested at the time of testator’s death.” ([ 176 Md. 430 , 5 A.2d 840 ,] 121 A.L.R. 1522 -1523).

In Gilmore v. Gilmore, supra, the Supreme Court of Georgia said, 29 S.E.2d 81 :

“ ‘At the death of my wife my said estate I give * * *,’ etc., was just another way of naming the recipients of the remainder interest in his estate at the termination of the life estate in the widow. This conclusion is reached not by a construction of these words alone, but from a consideration of the whole will. ‘The law presumes that words of postponement relate to the enjoyment of remainder rather than to the vesting thereof, and the intent to postpone the vesting of the estate must be clear and manifest. The general rule is that where a testator creates a particular estate, and then goes on to dispose of the ulterior interest, expressly, in an event which will determine the entire estate, the words descriptive of such event, occurring in the latter devise, will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting.’ 33 Am.Jur., Life Estates, Remainders, etc., § 109.”

Based on their construction of the will that the gift was to “Charles Henderson Educational Association,” counsel for appellants state:

“Where property is devised to a trustee upon a use, in the first instance, for the benefit of private individuals, and upon a remote contingency for charity, the Rule against Perpetuities has perfect application, though there be no change of trustee; and even where cy pres is recognized, it cannot be applied where there is such a prior use.”

I do not agree with the construction which counsel places on the will in regard to the beneficiary of the school trust. Hence, I do not think the principle above quoted has application here to prevent the vesting of the equitable estate upon the death of testator. Thomas v. Bryant, supra.

As against the holding that the equitable title vested immediately upon the death of the testator in “that part of the public to be benefited,” which I have construed to be the school children of Pike County, counsel for appellants say in brief:

“Who are the ‘public’ to be benefited? Are they the school children who will be of school age (between the ages of 7 and 16 according to law) at the remote time when a building might be built? Did the equitable title vest in those children on January 7, 1937? Hardly. They were not in existence ; and if they had been in existence at that time, then by simple arithmetic they will be well beyond the school age before a building can be built.

“You cannot vest a title in the public. There must be someone or some entity capable of taking the equitable title before it can vest.”

For my answer to this assertion, T quote from the opinion prepared for the court by Mr. Justice SAYRE in Johns v. Birmingham Trust & Savings Co., 205 Ala. 535, 537 , 88 So. 835 , 836:

“ * * * And this court, by way of illustration, has said that a gift to *275 the poor of a given county or parish, or the clergymen of a particular denomination having charge of churches within a specified district, will be upheld in a court of equity. Williams v. Pearson, 38 Ala. 299 . And it has been repeatedly held that a charitable trust will not fail on account of any uncertainty as to the ultimate beneficiaries, within a properly designated class, if there is a competent trustee to make a selection and thereby render certain the beneficiaries who are to enjoy the bounty provided by the trust. 5 R.C.L. p. 347, § 82; Hadley v. For see, supra, 203 Mo. 418 , 101 S.W. 59 , 14 L.R.A.,N.S., 117. Recurring now to the provisions of this trust, we are constrained to hold that it should be upheld. This conclusion in no wise depends upon the cy pres doctrine, which does not obtain in this state. Nor do we think it should be affected ■by the decision in Crim v. Williamson, 180 Ala. 179 , 60 So. 293 . That was an obviously different case.”

I refer again to Williams v. Pearson, supra, cited with approval in Johns v. Birmingham Trust & Savings Co., supra. As before shown, Zealous Taylor executed his will in July, 1848, and died in February, 1851. Under the terms of his will he left the residue of his estate to his daughter and the begotten heir or heirs of her body, and provided that as to such residue if his daughter should die without a surviving heir or heirs of her body, the residue should be sold and converted into money, which should be divided into two parts and used for the charitable purposes indicated. The daughter died in October, 1857, unmarried. Her death was six years after that of her father but her early demise was, of course, unseen by the testator. As before shown, the charitable bequests, one of which was construed as being to “all the pauper and poor children” of two designated beats “whose parents are not able to support them,” for the education and tuition of such children. No specific children were indicated. But as before shown, this court said: “It is clear, upon the principles above laid down, and also according to the adjudged cases, that, in both instances, the testator’s designation of the objects of his bounty is sufficiently specific, and that the bequests are valid.”

I have heretofore shown that I do not construe the will as showing that it was testator’s intention that the Association be formed before the equitable interest vest. Nor do I think the provisions as to the acquisition of the land upon which the school buildings are to be constructed and that such land be free of encumbrance and the places where the buildings are to be constructed should be construed as invalidating the school trust. The charitable bequests considered in Williams v. Pearson were upheld in spite of the fact that the testator provided that two commissioners should be elected from the two beats, who should receive the money. There was no way to force such an election. Likewise, there was no way to require the execution of the bond which testator stated it was his “will” that the commissioners execute. Nor could it be said with certainty that the commissioners could lend out the money at eight per cent interest.

Counsel for appellants devote a considerable part of their brief on application for rehearing in support of the argument that the equitable interest in the school trust could not vest immediately upon the death of the testator because the interest of the charity is not .a remainder, but a springing use and, therefore, cannot be called vested. This assertion is based on the following construction placed on the will: “The prior estates might terminate at any time by the death of the individuals, but the termination of the prior estate would not eo instante convert the ulterior estate into a present interest.” Counsel argue: “It is a springing use, because it is limited to be enjoyed upon the happening of events entirely independent of the expiration of the prior interest. There is a possibility of a gap. In fact there is the certainty of a gap.”

Counsel have written a very learned treatise on the law of future interests and have cited eminent text writers on the sub *276 ject. Counsel cite no case. My research has disclosed no case where the question has been expressly considered in a case bearing any similarity to the one at hand.

However, the case of Curtis v. Maryland Baptist Union Association, supra, [ 176 Md. 430 , 5 A.2d 840 ] was one where there was a definite gap between the death of the survivor of the individual beneficiaries and the time when the trust funds would be available to the designated charity. Yet the Maryland court held that the Association’s right to receive the benefits of the charitable bequest vested at the death of the testator, the enjoyment being postponed during the lives of the life tenants “and, as it develops, during the period of accumulation.”

I recognize the fact that the Association might not be formed. The court cannot require its formation. There are matters about which the testator expressed his desire in regard to the location and construction of the school buildings which I think I must assume might not be met.

Yet under the power exercised by courts of equity in this state, as explained in Williams v. Pearson, supra, these contingencies do not invalidate the charitable bequest. The charity is the same, and under such power the equity court may carry out the wishes of the testator as nearly as circumstances will permit. This is not the exercise of the power of substituting one charity for another, which Justice Walker in Williams v. Pearson, supra, characterized as cy pres, a nonjudicial power, and not possessed by our equity courts at the time of testator’s death.

It matters not what name be given to this power, whether it be termed an original or inherent power or that exercised under the doctrine of equitable approximation or deviation. The fact remains that it was possessed by the equity courts of this state at the time of the death of Governor Henderson.

I have carefully considered the opinion written on the first appeal in the light of the brief filed in support of the application for rehearing, and I am clear to the conclusion that under the applicable rules of construction, it was properly held that the beneficiary of the school trust was “the part of the public to be benefited,” or, as I have indicated, the school children of Pike County, in whom the equitable estate vested immediately upon the demise of the settlor of the trust; that the rule against perpetuities was not violated and that a court of equity has power to see that the charitable intention of testator is carried out to the letter as nearly as circumstances will permit.

In Thurlow v. Berry, 247 Ala. 631, 635 , 25 So.2d 726, 730 , Mr. Justice Simpson, writing for the court, said: “ * * * In construing a will to determine whether accumulation merely is provided, the court gives a constructional preference in favor of a finding that income is ‘undisposed of’ rather than to be ‘accumulated’; in favor of ‘finding that retention of income is in the course of judicious management of the trust, rather than an accumulation.’ * .-K * •’

Relative to the contention made by counsel for appellants that the so-called school trust violates the statute which places a restriction on trusts for accumulation only, § 146, Title 47, Code 1940, I am of the opinion that under the prevailing rule of construction, it was properly held in the opinion written on the first appeal that there was no violation of the statute. I am in agreement with what was said in that connection on the first appeal and do not feel impelled to' elaborate thereon.

I feel that the cases cited by Justice Foster in the opinion which he prepared on the original submission of this appeal fully support the conclusion reached therein that said trust provisions do not violate the rule against accumulations as it existed at common law.

'Counsel for appellants contend that, irrespective of my views on the merits, if I act consistently with views heretofore expressed, I must agree to a reversal of the decree appealed from on the ground that the trial court erred in construing the will on demurrer. It is true that in the past I have taken the position that a will should not be so construed. But my views on that point have not prevailed and do not constitute the prevailing rale.

*277 I realize that I have not in this response to the application for rehearing considered in detail each and every point discussed in brief in support of the application. However, I have devoted considerable time and effort to a careful and studied consideration of all questions presented, and I am constrained to the conclusion that in spite of what may be the law in some other states and as expressed by eminent text writers, the conclusions which the majority of the court have heretofore reached in this case are in accord with the law of this state. I am, therefore, of the opinion that the application for rehearing should be overruled. As above indicated, I acquiesce in the modification of the judgment as to the taxation of costs.

LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur.

FOSTER and STAKELY, JJ., concur for the reason that, in their opinion, there is no material conflict there expressed with either the opinion prepared by Justice STAKELY on the former appeal or with that prepared by Justice FOSTER on this appeal.

BROWN, J., further expresses the reasons on which his dissent is 'based.