# Opposition Brief — Evans v. Abney

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1970
- **Citation:** 396 U.S. 435

## Text

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INDEX.

Page

Question accdeboscces dcedeshe Keres esses 1
Statement of the Case ........-..--ee cere ee eeeeeee 3
ccc sdhcbehebehervarsvernevesvsadncess 4
SE ND cbc ooer ts vonecivecrsnsesrvesesens 8
City Activity ........-.eseeeeeeeeeerececececees 9
Reasons for Not Granting the Writ ..............-- 11
Summary of Argument ...........sseecceccscees 11
Argument .......--.-seeeeeeerceeceeccccecccrccees 15
The State Court Decision .......cccsccccccscces 15

The Decision of the Georgia Court Does Not ‘‘Frus-
trade This Court’s Mandate in Evans v. Newton,
eS oes dcenauceerendtaee 15

The Decree of the Court Below Is Not Hostile to
the Petitioners’ Right to Immunity From Racial
a et eet Reed eke en wees 16

A. The Decision of the Georgia Supreme Court
Did Not Infringe Upon Any Rights Guaran-
teed Petitioners by the Fourteenth Amend-
ment. Nor Does It Encourage Racial Dis-
crimination. The Decision Involved Nothing
More Than the Construction of a Georgia
Will by a Georgia Court in Accordance With
Siicesuwesekesu nee ons van eekee 16

B. The Decision of the Georgia Court Rests
Solely Upon a Construction of Bacon’s Will,
and in No Way Rests Upon Any Proposition
That the Presence of Negroes Would Affect
the Enjoyment of a Park by White Persons.. 26

rt 7

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il

C. The Racial Restrictions in Bacon’s Will Could
Not, Under Any Theory, Have Been Treated
by the Georgia Court, or Any Other Court,
as ‘‘Nullities’’. The Georgia Court, in Con.
struing Bacon’s Will, Had to Consider These
Provisions Along With All Other Provisions
sbi ecbcige EE OT ET Pe aah, 30

NO bp ica nd sed send wwanss UxSanene wns %

Table of Cases.

American Railway Express Company v. Common-
wealth of Kentucky, 273 U. S. 269 hf eae 1)

Charlotte Park and Recreation Commission v. Bar-
ringer, 252 N. C. 311, 88 S. E. 2d 114 (1955), cert.
denied 350 U. S. 983 (1956) .................... 19, 25

Commonwealth of Pennsylvania vy, Brown, 392 F. 2d
120 (3rd Cir. 1968), cert. denied 391 U. §. 921
GEE Kee UR Ti cathe saveukseleucaeet sixs ec eee 34

DeCosta v. DePas, Amb. 228, 2 Swanst. 487 (1754) . .28, 99

Evans v. Newton, 382 U.S, 296 (1966) . .11, 13, 15, 17, 18, 34
Evans v. Newton, 220 Ga. 280, 138 S. E. 2d 573 ( 1964) 33

Houston v. Mills Memorial Home, Inc., 202 Ga. 540,

ee ED pei di céhdes ees cle 33
Jones v. Habersham, 107 U. S. 174 ................ 28
Lyeth v. Hoey, 305 U. S. 180 GME Weenuinseuceus 15,17
Marsh v. Alabama, 326 U. S. 501 SR bi bcccecs: 33, 34
Plessy v. Ferguson, 163 U. S. 537 EE keceekeot: 33

“ee eee eees

ee ee eeees

SP PCOS CC ADO EOS

OR LTD YT LPI AE a A RR FRR PS UPR RSS =

ill

Strother v. Kennedy, 218 Ga. 180, 127 S. E. 2d 19
7) ee ee 33

Sweet Briar Institute v. Button, 280 F. Supp. 312
(W. D. Va. 1967), rev’d. per curiam, 387 U. 8S. 423,
decision on the merits, 280 F. Supp. 312 (1967) .. 34

Tyler v. U. S., 281 Ce ee CEE nko vsceceds canes 15

Yerby v. Chandler, 194 Ga. 263 (1942) ............ 18, 24
Statutes.

Georgia Code, Section 69-504 ............-..eeeee 32, 33

Georgia Code, Section 108-106 (4) ............... 16, 33

Other Authorities.
39 Am. Jur., Parks, Squares and Playgrounds, Sec-

ON Rr rr errr: terre rrr e errr rr er re 25
4 Boott, Travia (26 G6. BOGS). cc ccvccccssesssevase 23, 28
37 Law Week 4107, 4110 (January 27, 1969) ...... 20

tiie

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1968.

No. 1106.

REVEREND E. S. EVANS, et al.,
Petitioners,

Vv

GUYTON G. ABNEY, et al.,
Respondents. .

BRIEF

In Opposition to Petition for Writ of Certiorari
to the Supreme Court of Georgia.

QUESTION PRESENTED

Where a testator devises land in trust with the direction
that said land be used as a park for the white persons,’
and only for the white persons, of the community, and
states as the reason for the racial limitation his positive
disapproval of the two races using recreation grounds

1 The property was devised in trust “for the sole... use
of the white women, white girls, white boys, and white children
of the City of Macon .. .” The Board of Managers in which
management of the park was vested was given the authority to
admit “the white men of the City of Macon and white persons
of other communities.”

rei, ee

together and in common, and where it is subsequently
held by the United States Supreme Court that the prop.
erty cannot continue to be used as a park for white per.
sons only, are Negro citizens of the community denied
any Federal constitutional rights by a judgment of 4
state court recognizing that (as a matter of state law
and of the interpretation of the particular will under
consideration) the trust has failed, and the property has
reverted to the heirs of the testator?

STATEMENT OF THE CASE

Respondents incorporate by reference the statement of
the case contained in the opinion of the Supreme Court
of Georgia, which opinion is included in the appendix
to the Petition for Writ of Certiorari (Petition, P. 16a
et seq.). Generally speaking, and except as hereinafter
commented upon, petitioners have made a relatively
accurate summary of most of the evidence which is in
the record. However, as far as the issues are concerned,
we view the great bulk of material in the record as being
largely, if not entirely, irrelevant. This is so because
the disposition of this case in the Georgia courts was
controlled by the clear and unambiguous terms of the
will of A. O. Bacon interpreted in the light of well-
settled principles of Georgia law.

Petitioners state at page 5 of their petition that the
Baconsfield property was ‘‘left to the City of Macon’’.
Since petitioners have, throughout this litigation, tended
to overemphasize and exaggerate the role of the City,
it should be noted that the property was not devised
to the City of Macon outright, but instead the City’s
interest in the property was as the passive title holder,
and the use of the property was subject to certain spe-
cifie conditions (as well as the continuing control of the
Board of Managers).

Petitioners are in error when they state on page 7 that
the motion of respondents in Bibb Superior Court asked
that court to ‘‘rule that Senator Bacon’s trust had be-
come unenforceable, and that the Baconsfield property
had reverted . . .’’. That the trust had become unen-
foreeable had already been recognized by the Georgia
Supreme Court and respondents’ motion for summary
judgment took note of this:

“On January 17, 1966, Bacon’s trust became un-
enforceable and the funds held for its support re-

wins

verted at that time into Bacon’s estate by operation
of law. On March 14, 1966, the Georgia Supreme
Court recognized that this had occurred, saying, ‘We
are of the opinion that the sole purpose for which
this trust was created has been terminated.’ This
judgment declaring what had transpired in regard
to the title is now the law of the case. It remains
only for this court at this time to give effect to said
reversion of title.’ Respondents’ Motion for Sum-
mary Judgment, paragraph 2 (R. 127).

The ‘‘secondary contentions’? which the Georgia Su.
preme Court directed Bibb Superior Court to consider,
were those contentions resulting from the decision that
the Baconsfield property could not be used in accordance
with the provisions of Bacon’s will, that the trust had
failed and the property had reverted into Bacon’s estate.
The Georgia Supreme Court having ruled that the trust
had failed and the property had reverted, the only real
question before Bibb Superior Court involved a deter-
mination as to the individuals in whom title had vested
by operation of law.

The Will

In view of the fundamental importance of Bacon’s will,
those passages from Items IX and X which are control-
ling are quoted herewith:

“é
.

. it is my will that all right, title and in-
terest in and to said property hereinbefore described
and bounded, both legal and equitable, including all
remainders and reversions of every estate in the

? Page references are to the record in the Georgia Supreme
Court, as respondents do not have access to the record in the
United States Supreme Court. The record in the United States
Supreme Court is (for the most part) a photostatie copy of the
record in the state court, and therefore the court will have be-
fore it the state court record’s page numbers,

Fee Aes tee —— — Sens aR Usd eee es
RTA ERTL IR TSE MOT et tre A NI SERVATION

ee

same of whatsoever kind, shall thereupon vest in
and belong to the Mayor and Council of the City
of Macon, and to their successors forever, in trust
for the sole, perpetual and unending, use, benefit and
enjoyment of the white women, white girls, white
boys and white children of the City of Macon to be
by them forever used and enjoyed as a park and
pleasure ground, subject to the restrictions, govern-
ment, management, rules and control of the Board
of Managers hereinafter provided for; the said prop-
erty under no circumstances, or by any authority
whatsoever, to be sold or alienated or disposed of,
or at any time for any reason devoted to any other
purpose or use excepting so far as herein specifically
authorized. For the control, management, preserva-
tion and improvement of said property there shall
be a Board of Managers consisting of seven persons
of whom not less than four shall be white women,
and all seven of whom shall be white persons. The
Members of this Board shall first be selected and
appointed by the Mayor and Council of the City of
Macon, or by their successors in said trust; and all
vacancies in said Board shall be filled by appoint-
ments made by the Mayor and Council of the City
of Macon, or their successors, upon nomination made
by the said Board of Managers and approved by the
said Mayor and Council of the City of Macon or
their successors. If practicable, I desire that there
shall be as a member of said Board of Managers
at least one male or female descendant of my own
blood, not only in the Board as at first constituted,
but at all times thereafter. The said Board of Man-
agers shall at all times have complete and unre-
stricted control and management of the said property,
with power to make all needful regulations for the
preservation and improvement of the same, and rules
for the use and enjoyment thereof, with power to

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exclude at any time any person or persons of either
sex, who may be deemed objectionable, or whose
conduct or character may by said Board be adjudged
or considered objectionable, or such as to render for
any reason in the judgment of said Board their
presence in said grounds inconsistent with or preju-
dicial to the proper and most successful use and
enjoyment of the same for the purposes herein ¢op.
templated. The Board of Managers shall have the
power to admit to the use of the property white
men of the City of Macon, and white persons of
other communities, with the right reserved to at any
time withhold or withdraw such privilege in their
diseretion. To enable the Board of Managers to have
a fund for the payment of necessary expenses eop-
nected with the management, improvement, and
preservation of said property, including when pos-
sible drives and walks, casinos and parlors for
women, play grounds for girls and boys and pleasure
devices and conveniences and grounds for children,
flower yards and other ornamental arrangements, |
direct that said Board may use for purposes of in-
come in any manner they may deem best that portion
of the property that lies Easterly of the road known
as Boulevard Baconsfield (more particular deserip-
tion of property omitted), but in no event and under
no circumstances shall any part of the property
herein conveyed and bounded and platted be ever
sold or otherwise alienated or practically disposed
of by any person or authority whatsoever, and ex-
cepting the portions of the property which may be
used for purposes of revenue as aforesaid all the
remainder of said property shall forever and in per-
petuity be held for the sole uses, benefits and en-
joyments as herein directed and specified . . .”

‘““. . . I take occasion to say that in limiting the
use and enjoyment of the property perpetually to

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white people, I am not influenced by any unkindness
of feeling or want of consideration for the Negroes,
or colored people. On the contrary I have for them
the kindest feeling, and for many of them esteem and
regard, while for some of them I have sincere per-
sonal affection.

“T AM HOWEVER, WITHOUT HESITATION IN
THE OPINION THAT IN THEIR SOCIAL RELA-
TIONS THE TWO RACES SHOULD BE FOREVER
SEPARATE AND THAT THEY SHOULD NOT
HAVE PLEASURE OR RECREATION GROUNDS
TO BE USED OR ENJOYED, TOGETHER AND
IN COMMON. I am moved to make this bequest of
said property for the use, benefit and enjoyment of
the white persons herein specified by my gratitude
to and love for the people of the City of Macon from
whom through a long life time I have received so
much of personal kindness and so much of public
honor; and especially as a memorial to my ever
lamented and only sons, Lamar Bacon who died on
the 21st day of December, 1884, and Augustus Oc-
tavius Bacon, Jr., who died on the 27th day of the
same year. And I conjure all of my descendants to
the remotest generation as they shall honor my
memory and respect my wishes to see to it that this
property is cared for, protected and preserved for-
ever for the uses and purposes herein indicated... .’’

‘*. . . If for any reason it should be held that
the Mayor and Council of the City of Macon have
not the legal power under the Charter of the City
to hold said fund in trust for the purposes specified,
then unless said power is obtained through appropri-
ate legislation, I direct that the powers herein ex-
pressed be conferred upon a trustee to be selected
by the Mayor and Council of the City of Macon,
with such safeguards and restrictions as may be
prescribed by them for the perpetual safekeeping

Pt OTR Se.
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—

and management of the fund. And I give a Similar |
direction if for any reason it should be held that
the Mayor and Council of the City of Macon haye
not the legal power under their Charter to hold in
trust for the purposes specified the property desig.
nated for said park and pleasure ground, unless said
required power is conferred by appropriate legisla.
tion...”

**. . . As there will be no one of my descendants
who now bears my name either by right of birth,
or through voluntary choice, an additional reason
is furnished why I should deem it proper that in
devoting this property to the uses specified, I should
at the same time link their memories with the pleas.
ures and enjoyments of the women and children ang
girls and boys of their own race in the community
of which they once formed a happy part...” (R.
14-21) (emphasis supplied),

The 1920 Deed

The statement on page 13 that ‘‘the City of Macon thus
paid a total of $41,625.00 to the trustees under Bacon’s
will in order to acquire Baconsfield’’ is inaccurate, The
City of Macon’s limited interest in the Baconsfield prop.
erty was acquired by virtue of the provisions of Bacon’s
will, and not because of the 1920 deed. Under the terms of
Bacon’s will, the park was not to come into being until
the deaths of Bacon’s wife and two children. However, the
trustees and Bacon’s sole surviving daughter were appar-
ently of the opinion that it would be desirable to proceed
with an earlier development of Baconsfield than antici-
pated by Bacon’s will. Therefore, the trustees advised the
City of Macon that they would permit the City to take
possession of Baconsfield prior to the death of Bacon’s sur-
viving daughter provided the City would agree to pay an
annual rental during her lifetime (R. 689). Thus the sole
purpose of the deed of February 4, 1920 was to permit

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the development of Baconsfield as a park prior to the
death of Bacon’s surviving daughter (who had a beneficial

life estate in the property).

City Activity

On page 14, petitioners state that the Superintendent of
Parks of the City of Macon ‘‘exercised general supervision
over Baconsfield for many years.’’ This is not true.
Baconsfield was ‘‘supervised’’ and operated by the Board
of Managers which Bacon provided for in his will:

‘‘The said Board of Managers shall at all times
have complete and unrestricted control and manage-
ment of the said property, with power to make all
needful regulations for the preservation and improve-
ment of the same. . .’”’ (R. 17).

The Board of Managers of Baconsfield functioned en-
tirely independent of the City and it always exercised to
the fullest those powers granted under Bacon’s will. In
none of its duties was the Board made answerable to the
City; nor did the City, as Trustee, have the right to re-
move any member of the Board.

That the Board, and not the City, operated the park is

evidenced by the minutes of the Board of Managers from
1936 to 1964. (See Intervenors’ Exhibits ‘‘A’’ and ‘‘B’’,

7
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R. 361 et seq.) These minutes which take up approxi- f
mately 150 pages and summarize action taken at some 53
separate meetings during the period covered show that the f
Board of Managers dealt with the minutest details of the ‘
operation of the park. Furthermore, a financial statement :
is attached to the minutes of each meeting and a rough {
calculation shows that a total of some $95,000.00 was spent
by the Board in the operation of the park. (These funds '
were derived from Bacon’s commercial properties. ) ;

Petitioners seem to try to create the impression that i
governmental units have constructed numerous physical t

“af SI ce aah a iad :
‘ Se eA Of OLY INOS EAH AN PRS race rat ae meg eo gtemereermenage a
Se elas AS at GE As Justice Harlan noted in his concurring opinion in Pres-
byterian Church in the United States v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church: “I do not, however read
the Court’s opinion to go further to hold that the Fourteenth
Amendment forbids civilian courts from enforcing a deed or
will which expressly and clearly lays down conditions limiting

8 AC Ea

_— von

could require that his property be used in a manner con-
trary to law, but it does mean that under no circumstances
could the property be used in a manner violative of the
express conditions imposed upon the use of the testator’s
property. It is one thing for a court to say, in effect, that
as a matter of public policy we are not going to let a tes.
tator’s property be used in the manner he would like it
to be, and indeed, quite another to go further and say that
since the property cannot be used in the prescribed man-
ner, it will be put to another use even though the testator
specifically stated that he disapproved of such use.

Contrary to the contention of petitioners (Petition, pp.
33 and 36), the decision of the Georgia court is not at all
inconsonant with Reitman v. Mulkey, 387 U. S. 369 (1967)
(or with any other decision of this court). In Reitman,
supra, it was found that the state had involved itself in
private racial discrimination to an unconstitutional de-
gree. There, and in the other cases cited at page 33 of the
petition which relate to racial discrimination, the courts
were concerned with state involvement in actual racial
discrimination, both present and prospective. In the de-
cision under consideration, there is no question of anyone
being discriminated against because of race; and, certainly
there is nothing which would remotely suggest that the
state has encouraged, or been in any way involved with
constitutionally impermissible racial discrimination. It
was Bacon, not the State of Georgia, who decreed that
his property would not be used as an integrated park, and
no one has any right, federal or otherwise, to require that
the property be used in a manner contrary to the re-

a religious organization’s use of the property which is granted.
If, for example, the donor expressly gives his Church some
money on the condition that the Church never ordain a woman
as a minister or elder . . ., or never amend certain specified
articles of the Confession of Faith, he is entitled to the money
back if the condition is not fulfilled.” 37 Law Week 4107, 4110
(January 27, 1969).

a,

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strictions placed upon the use of the property by Bacon.
And, of course, with the removal of the property
from the ‘‘public’’ to the private sphere any possible
question of state action which would violate the Four-
teenth Amendment has been eliminated. It is indeed diffi-
cult to conceive how the Georgia decision, which expressly
recognized that Bacon’s property could not continue to be
used as a segregated park, could in any way ‘‘encourage
racial discrimination. ”’

Although the construction of wills is peculiarly a matter
for the application of state law by state courts, petitioners
urge upon this Court the contention that the Georgia court
incorrectly construed Bacon’s will. Looking at the will in
even a cursory manner, one cannot help but be impressed
by the fact that Bacon planned for his park with the great-
est of care and deliberation. This park, which was to be a
memorial to Bacon’s two sons, was by no means to be just
another ‘‘city park.’’ Instead, Bacon’s park was to be
subject to conditions not applicable to other parks; and the
operation and management of the park were vested in a
Board of Managers which was to (and did) function en-
tirely independent of the City and its governing body.

As for the racial restriction, we can hardly imagine
Bacon having used language which would have more
clearly indicated his intent that the use of his property
should be extended to white persons only, or which would
have more clearly indicated that this limitation was an es-
sential and indispensable part of his plan for Baconsfield.
Indicative of Bacon’s careful planning in this regard is
the fact that not only was he careful to limit Baconsfield
to white persons, but also he provided that the white men
of Macon, and white persons from other communities,
would be admitted only at the pleasure of the Board of
Managers. Furthermore, he authorized the Board to ‘‘ex-
clude at any time any person or persons of either sex, who
may be deemed objectionable.’’

SEE IRS POL LRE AEE MEAD PLETE 9 SEDO PVTE VL LVN ALE LLL ALLRED EPEAT

—.

Insofar as this litigation is concerned, obviously, the
most significant passage in Bacon’s will is that which ey.
plains why he so carefully limited the use of Baconsfield
to the ‘‘white women, white girls, white boys, and white
children of the City of Macon.’’ The racial limitation was
not included because of any feeling of hostility toward eo].
ored people, nor was it prompted by a desire to be char.
itable only to persons of his own race, or because Bacon
felt that the presence of Negroes would ‘‘spoil’’ the park
for white persons. Instead, it was that as a matter of per-
sonal social philosophy, Bacon was:

‘*. . . without hesitation in the opinion that in their
social relations the two races should be forever sepa-
rate and that they should not have pleasure or recrea-
tion grounds to be used or enjoyed, together and in
common’’ (R. 18).

Petitioners have suggested several reasons why they
think the Georgia court erred in its construction of
Bacon’s will, none of which, we submit, has any merit.

First, they argue that neither Bacon nor any other per-
son ‘‘has any lawful power’’ to exclude Negroes from
Baconsfield park. As has been pointed out, there is no dis-
pute about the fact that Bacon’s property cannot now be
used for a park operated on a segregated basis. How-
ever, at the time Bacon’s will was probated, and up until
this Court’s decision in 1966, there was no constitutional
prohibition against the operation of Baconsfield in a man-
ner consistent with the requirements set forth in Bacon’s
will. The fact that some 50 years after the probate of
Bacon’s will it was decided by the United States Supreme
Court that the park which Bacon created cannot continue
to be operated for white persons only did not give the
Georgia court, or any court, the right to rewrite Bacon’s
will and to delete those restrictions relative to the use of
the park by white persons. There is clearly a difference

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between a court determining that a trust cannot continue
to be operated in accordance with the testator’s intent
because such operation would be contrary to law, and a
holding that because of this, the ‘‘illegal’’ words will
simply be disregarded. In such a situation as existed in
this case, a court would in any event have to construe the
will under consideration in light of the failure of the trust,
and would have to determine whether or not cy pres could
be applied, and if it could not, then the property would
revert by operation of law. In no event could the testa-
tor’s intention simply be disregarded or ignored.

The second consideration advanced by petitioners re-
lates to the fact that Bacon did not expressly provide for
reverter upon failure of the trust. It is probable that
Bacon never actually considered that his trust would fail,
for at the time he drafted his will (and up until 1966) his
plan for Baconsfield was entirely lawful. The absence of
a clause providing for express reversion is of no signifi-
cance insofar as Georgia law is concerned. As the Georgia
Supreme Court pointed out, the property reverted, not
under the terms of the will, but because of Ga. Code Sec.
108-106 (4) which provides that upon the failure of an ex-
press trust, a resulting trust is implied for the benefit of
the grantor, or testator, or his heirs.

In not expressly providing for reversion, Bacon was
not unlike other testators. As has been noted:

‘‘Indeed, it is ordinarily true that the testator does
not contemplate the possible failure of his particular
purpose, and all that the court can do is to make a
guess not as to what he intended but as to what he
would have intended if he had thought about the mat-
ter.”’ IV Scott, Trusts, Sec. 399.2, at 2832 (2d ed.
1956).

We submit that a fair and reasonable reading of Bacon’s
will leads to the undeniable conclusion that under no cir-

. —_ i

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cumstances could Bacon’s property ever be used as an
integrated park. While Bacon may not have specifically
contemplated a trust failure, he did expressly state that
he was ‘‘without hesitation in the opinion that in their
social relations the two races should be forever separate
and . . . they should not have pleasure or recreation
grounds to be used or enjoyed together and in common,”
Bacon’s will is certainly not ‘silent on this point.’’

Petitioners are in error when they suggest that the
Georgia court should have considered what “‘a Georgian
who died over 50 years ago’’ would prefer (Petition, p,
38). The Georgia court was constrained to consider only
what Bacon (and no one else) would have wanted had he
known that his plan for Baconsfield would someday be.
come impossible of accomplishment; and, in answering
this question, the Georgia court could look only to Bacon’s
will. That is to say, the court could not speculate as to
what a hypothetical Georgian might have desired; nor
could it engage in speculation as to what use might be
made of the property upon reversion. There is no law,
state or federal, which would permit a court to **update”’
a testator’s social philosophy. Suffice it to say, the Georgia
court was bound by Bacon’s intention as manifested in
all of the provisions of his will. See Yerby v. Chandler,
194 Ga. 263, 21 S. E. 2d 636 (1942).

Petitioners suggest that the activity of the City during
the period it was trustee was relevant to the issues before
the Georgia court. We disagree. The fact that during the
period of years when the park was being operated by the
Board of Managers in accordance with Bacon’s will, work-
men from the City worked at Baconsfield, or that the City
had any other contact or connection with the park, had no
bearing on the question of whether or not there had been
a trust failure, and likewise had no bearing on the ques-
tion of reversion, or the applicability of the doctrine of

a SN

cy pres. It would indeed be a radical introduction into the

: law of trusts for a court to hold that a trustee (or anyone

else) could, in effect, alter the provisions of a testamen-
tary charitable trust by spending money (or doing any-
thing else) in connection with the trust property. Cer-
tainly, a trustee could never acquire title to the trust
property in the absence of action on the part of the per-
son who established the trust. This is true no matter how
much money the trustee might spend on the trust prop-
erty. In essence, the Georgia court was concerned solely
with the question of whether or not the trust had failed
and (upon recognizing that it had) whether or not cy pres
should be applied. What might have happened between the
time the trust became operative and the date of termina-
tion was of no relevance.

The case illustrative of the fact that the expenditure
of funds by a municipality in connection with trust prop-
erty would not prevent reversion is Charlotte Park &
Recreation Commission v. Barringer, 252 N. E. 311, 88
S. E. 2d 114 (1955), cert. denied, 350 U. S. 983 (1956).
In that case it was stated:

‘If Negroes use the Bonnie Brae Golf Course, the
determinable fee . . . automatically will cease and
terminate by its own limitation expressed in the deed,
and the estate granted automatically will revert to
Barringer.’’ 88 S. E. 2d at 123.

Also, see 39 Am. Jur., Parks, Squares and Playgrounds,
Sec. 21, where it is stated that where land is dedicated to
a municipality as a park, it ‘‘must be preserved or the
land will revert to the original proprietor.’’

While we do not view the activity of the City as hav-
ing any bearing on the issues which were before the
Georgia court, as a matter of interest, we would point out
that there is nothing at all inequitable about the fact of

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reversion, as during the period of time the City was trus.
tee, a large segment of the community was entitled to use
Baconsfield. The situation is not at all unlike that where
a municipality leases property to be used as a park. (Cer.
tainly, no one would suggest that the City could acquire
any greater rights in the land than provided for in the
contract with the owner.

B. The Decision of the Georgia Court Rests Solely Upon
a Construction of Bacon’s Will, and in N» Way Rests
Upon Any Proposition That the Presence of Negroes
Would Affect the Enjoyment of a Park by White Persons,

The contention that the Georgia Supreme Court based
its decision upon the ground that the presence of Negroes
“‘spoils’’ a park for whites is totally without merit, or
justification. The Georgia court was not in the least con.
cerned with any factual consideration of whether or not
the presence of Negroes might ‘‘frustrate’’ the enjoyment
of a park by whites, nor was the court concerned with the
question of whether or not the property was large enough
to accommodate both the whites and Negroes of the com.
munity. Simply stated, petitioners miss the point when
they talk solely in terms of ‘‘enjoyment’’. Whether or
not white persons in the community might actually
“‘enjoy’’ using Baconsfield in conjunction with Negroes,
was not the question. Instead, the court’s only concern
was whether such use would violate Bacon’s restriction
that his property be used by white persons only. Clearly
it would, for Bacon’s concern was not that Negroes might
adversely affect the enjoyment of the park by white per-
sons, but rather it was that he was opposed to the mixing
of the races in social relations. Stated differently, Bacon
viewed an integrated park as being affirmatively objec-
tionable, and regardless of the fact that many white per-
sons might not object to using such a park, Bacon did not

want his property so used.

mpc
— a

Petitioners speak in terms of the ‘‘affirmative purpose
of the trust’? (Petition, p. 41), as if to imply that the
Georgia court would have been justified in disregarding
the racial restriction on the ground that such restriction
was ‘‘negative’’. The Georgia court, of course, had to
construe the will as a whole and to give consideration to
all of its parts, including those which qualified the use
of the property. Under a proper construction of Bacon’s
will, Bacon had only one intent, one purpose, to-wit, to
ereate a park... ‘‘for the sole .. . use, benefit and en-
joyment of. the white women, white girls, white boys and
white children of the City of Macon... .’’ His plan for a
park for these persons was a comprehensive, cohesive, in-
terlocking one which may not be divided into sections or

parts.

In Bacon’s mind, a park which would be used by both
races was significantly different from a park which would
be used only by members of one race, in that a park of the
former type would be contrary to his personal social phil-
osophy. While Bacon wanted to furnish a park for white
persons in the community, his charitable intention was ob-
viously conditioned upon the park being used by white
only. Otherwise, his property would be put to a use which
he considered wrong, to-wit, a recreation ground used
jointly by members of both races.

Petitioners suggest that the Georgia court could have
reached the result which petitioners deem to be socially
desirable by applying the doctrine of cy pres. Cy pres,
however, is not applied as a matter of course in every
instance of charitable trust failure. It is an intent-enfore-
ing doctrine and whether or not it can, or should, be ap-
plied depends upon a construction of the particular will
under consideration. Cy pres can be applied ‘‘only for
the purpose of carrying out what would probably have
been in accordance with the intention of the testator.’’

a “ nec 0 ny

—

IV Scott, Trusts, Sec. 399.1, at 2831 (2d ed. 1956). It ean
never be applied where the result would be contrary to
the express desire of the testator. Ibid.

For a Georgia court (and surely this was a matter fo,
the state court to decide) to have applied cy pres in the
manner sought by petitioners, would have resulted in
Bacon’s property being put to a use of which he very
clearly and expressly disapproved, and to apply cy pres
in this manner would be contrary to Georgia law.

Actually, the result desired by petitioners (under any
of their theories) could be obtained only by returning to
our jurisprudence the rightfully rejected doctrine of the
royal perogative. This doctrine, which was a part of the
early English common law, permitted the sovereign in a
situation such as this to apply property for any charitable
purpose he might deem appropriate. According to Scott:

‘“‘The exercise of the perogative power by a biased
or cynical or whimsical king sometimes resulted in
devoting the property of the testator to purposes of
which he never would have approved, purposes which
might run entirely counter to his wishes, . . .” IV
Scott, Trusts, Sec. 399.1, at 2829 (2d ed. 1956).

This doctrine is not accepted in any of the states, and
certainly not in Georgia. In Jones v. Habersham, 107
U. S. 174, it was stated, ‘‘. . . the law of charities is fully
adopted in Georgia, as far as is compatible with a free
government where no royal perogative is exercised . . .”

Scholars who wish to point out the obvious evils of the
doctrine of the royal perogative cite as a classic case of
injustice, DeCosta v. DePas, 1 Amb. 228, 2 Swanst 487
(1754). In that case, a Jewish testator had left money in
trust to establish an assembly for reading Jewish law and
instructing people in the Jewish religion. This was deemed
to be illegal as promoting a religion contrary to the estab-

———

lished religion of the state. The king thereupon diverted
the trust fund so that it would be used to instruct persons
in the Christian religion.

Bacon’s great emphasis on his racial limitation and his
express disapproval of recreational areas which would be
used by members of both races together and in common
show that a ‘‘desegregated”’ park would indeed be as
contrary to his wishes as the final disposition in DeCosta
y. DePas, supra, would have been to the testator in that

case.

Petitioners charge that the Georgia court ‘‘necessarily
decided that the racial limitation in Senator Bacon’s will
was of more dignity and importance than his equally or
more solemn and explicit provisions for the perpetuity of
this trust’’ (Petition, p. 47). This is wrong. The racial
limitation in the will was entitled to, and given, no more
‘dignity’? than any other provision of Bacon’s will; but
it was entitled to consideration in its proper perspective,
and this is something petitioners refuse to recognize.
Giving the provisions relative to the racial restriction
their common sense meaning, and construing the will as
a whole, it can hardly be denied that cy pres could never
be applied in such a manner that would result in Bacon’s
property being used as an integrated park. If there was
any ‘‘policy decision’? made by the Georgia court, it was
only that the end does not justify the means, and thus
cy pres was not used as an unauthorized means to ration-
alize a result not authorized by Bacon’s will or Georgia
law.

Petitioners do a serious injustice to the members of the
Georgia Supreme Court when they charge that the judg-
ment of that court ‘‘implies espousal . . . of an estimate
that racial mixture is crucially undesirable’’ (Petition,
p. 48). There is nothing in the record which would justify

iammninaeerne

a

anyone concluding that the members of the Georgia court
shared Bacon’s feelings on race. The merits (or demerits)
of Bacon’s philosophy were not in issue. The Georgia
court had to accept wuat it found, and regardless of the
personal opinions of the individual members of the
Georgia court, the racial limitation which Bacon placed
upon the use of his property could not be ignored.

— we

In summary, whether or not the presence of Negroes
spoils a park for whites was not in issue. Rather, the
controlling consideration was Bacon’s will and, notwith.
standing the fact that whites might enjoy using a park
in conjunction with Negroes, it is clear that an integrated
park would be directly contrary to Bacon’s intentions as
expressed in his will.

C. The Racial Restrictions in Bacon’s Will Could Not,
Under Any Theory, Have Been Treated by the Georgia
Court, or Any Other Court, as ‘‘Nullities’’. The Georgia
Court, in Construing Bacon’s Will, Had to Consider These
Provisions Along With All Other Provisions of the Will

Petitioners are indeed urging a radical departure from
fundamental concepts of will-construction when they talk
about treating any provision of a will as being a mere
‘‘nullity’’ which can be disregarded, as if it did not ap-
pear in the will. They are, in effect, saying that the
Georgia court should have ‘‘rewritten’’ Bacon’s will so
that what they would consider to be a socially desirable
result would have been obtained. This is simply not the
law. As has been discussed, if a charitable trust fails
because an indispensable provision thereof is deemed to
be unenforceable, the result is not an ipso facto elimina-
tion of that provision from the will, but instead it then
becomes the duty of the court to decide whether under the
circumstances then existing cy pres should, or should not,
be applied.

—-_

axe $5 ou

Petitioners offer as their first reason why Bacon’s will
should be accorded such unusual treatment the novel
proposition that the provisions of Bacon’s will relative
to Baconsfield Park ‘‘became tantamount to City ordi-
nances’’ (Petition, p. 50). Petitioners cite no authority in
support of this unusual proposition, and, of course, there
is none. A will does not lose its identity or status as a
will simply because a municipality is named as the trustee
of a testamentary trust.

Ordinances are commonly understood to be enactments
of the legislative body of a municipal corporation. If a
court accepted the proposition that the provisions of a
will could somehow be considered to become city ordi-
nances, then it would logically follow that the governing
body of the city would have the power to alter the provi-
sions of the will in the same manner they could amend
‘other city ordinances.’’ We can hardly imagine a more
fundamental (or more unacceptable) departure from the
law of wills.

The ‘‘factual’’ reasons which petitioners cite in sup-
port of their argument that Bacon’s will should be treated
as a city ordinance are without merit. There is certainly
no basis for the statement that the provisions of Bacon’s
will were ‘‘promulgated and espoused by the City with
respect to the conduct of its parks’’ (Petition, p. 50).
First, of course, it was Bacon, and not the City of Macon,
who promulgated these provisions and, second, the provi-
sions of Bacon’s will had nothing whatever to do with the
conduct of the City of Macon’s parks. They affected only
Baconsfield, and the management of Bacon’s park was
vested, not in the City, but in the Board of Managers
whose sole responsibility was the management of the park
in accordance with Bacon’s will.

The contention that Bacon intended for the provisions
of his will to ‘‘achieve very quickly the status of City

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Ordinances’’ (Petition, p. 51) is not only without founda.
tion, it is pc ¢ fantasy. There is not the slightest indica.
tion in the will that Bacon had any such intention. Fur.
thermore, had Bacon intended to involve the City to such
an extent (and under Georgia law, we know of no way
for him to have elevated his will to the status of a City
Ordinance) it hardly seems likely that he would have
provided for the park to be managed by the Board of
Managers rather than by the City.

Petitioners also argue that Bacon’s will ‘‘rested”’ upon
Georgia Code Section 69-504, and since this statute has
always been unconstitutional (so petitioners erroneously
contend) those provisions of Bacon’s will which provide
for the racia) restriction should simply be stricken. As-
suming arguendo that 69-504 was in fact unconstitutional,
its provisions could be (to use petitioners’ word)
‘‘stricken’’ only because the statute was promulgated by
the state legislature, and the 14th Amendment forbids
State sponsored racial discrimination. Bacon’s will, of
course, was solely the product of Bacon, a private citi-
zen, and no matter how discriminatory the provisions
of his will might be, they cannot be treated in the same
manner as a state statute, for the 14th Amendment does
not reach private discrimination. While Bacon’s plan
can no longer be carried out, there is no law, state or Fed-
eral, which would authorize any court to ‘‘strike out’? any
part of the will, leaving those portions pleasing to pe-
titioners to stand.

The Georgia Supreme Court considered the contention
that Georgia Code Section 69-504 was unconstitutional,
even at the time it was enacted, and correctly concluded
that for it to ‘‘hold that the trust provision of Senator
Bacon’s will was made pursuant to an unconstitutional
Code Section, would have the effect of making the trust
impossible of performance (Smith v. DuBose, 78 Georgia
413, 434), and thus cause a reversion under Code Section

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108-106 (4)’’ (Opinion of Georgia Supreme Court, Appen-
dix to Petition, p. 22a).

We agree with the Georgia Supreme Court that
whether or not Section 69-504 was, or was not, con-
stitutional at the time of its enactment has no bearing
on the issues in this ease for the same result obtains in
either event. Nevertheless, we would note in passing, and
in defense of Section 69-504, that this statute was in fact
constitutional ‘‘even under Plessy v. Ferguson.’’ Section
69-504 has absolutely nothing whatever to do with a
city’s park system and whether or not a system provided
for ‘‘separate but equal’? parks would obviously depend
upon an examination of the particular park system under
consideration. Furthermore, neither the State of Georgia
nor the City of Macon has ever had a statute or ordinance
requiring racial segregation in parks; therefore, the ‘‘sep-
arate but equal’’ doctrine could hardly be in issue.

It also should be noted that while Section 69-504 au-
thorized a testator to provide for a park that would be
racially segregated, it did not require that such a park
necessarily be segregated (Evans v. Newton, 220 Ga. 280,
138 S. KE. 2d 573 (1964); nor was there any reason under
Georgia Law why Bacon’s provision for a racially segre-
gated park would . :i have been entirely valid even in
the absence of Section 69-504. See Strother v. Kennedy,
218 Ga. 180, 127 S. E. 2d 19 (1962) and Houston v. Hills
Memorial Home, 202 Georgia 540, 43 S. E. 2d 680 (1947).

The ‘‘philosophy’’ of Marsh v. Alabama, 326 U. S. 501
(1946), has no application to the case under consideration.
The situation in the case at hand differs markedly from
that which existed in Marsh v. Alabama, supra. The
fundamental difference (and the only one necessary te
comment upon) is that, with the failure of the trust,
Bacon’s property has been completely removed from the
‘public sphere’’; and, therefore, there can be no ques-
tion of anyone being denied any constitutional rights.

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While Marsh v. Alabama, supra, might have been of
possible relevance to the question of whether Bacon’s
property could continue to be used as a segregated park,
it is of no significance whatever insofar as the state law
question of trust failure is concerned.

Nor can petitioners find support in either Gommon.
wealth of Pennsylvania v. Brown, 392 F. 2d 120 (3rd Cir.
1968), cert. den. 391 U. S. 921 (1968) or Sweet Briar In.
stitute v. Button, 280 F. Supp. 312 (W. D. Va. 1967)
rev’d per curiam, 387 U. S. 423, decision on the merits,
280 F. Supp. 312 (1967), for in neither of these cases
was trust failure (and reversion) in issue. The de.
cision of the Georgia Court is completely consistent with
these decisions, for it was expressly recognized that the
racial restriction could not be enforced.

We do not share petitioners surprise that the Georgia
Supreme Court did not deem it necessary to discuss pe-
titioners contentions with respect to dedication (Peti-
tion, p. 55). That there had been no dedication to the
public was so obvious as not to require elaboration. The
very words of the will clearly negate any intention on
Bacon’s part to ‘‘dedicate’’ his property to the use of
the general public. On the contrary, Bacon was spe-
cific in limiting the use of his property to a particular
segment of the community.

Dedication is by definition a matter of property law,
and whether or not a tract of Georgia property has been
dedicated to the general public is very fundamentally a
consideration controlled by Georgia law. The federal law
command, as expressed in this Court’s decision in Evans
v. Newton, 382 U. S. 296 (1966), is only that if Bacon’s
property were to be continued to be used for a park, it
would have to open to members of both races. This,
we submit, has nothing whatever to do with the state
law question of whether or not, when Bacon executed his

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‘—— — 35 —

| will, he ‘‘dedicated’’ his property to the use of the gen-
eral public.

In summary, under no theory could any provision of
Bacon’s will have been treated as a nullity for it was the
obligation of the Georgia court to construe the will as a

whole, and to consider all parts and provisions thereof,
including those provisions which limited the use of the

property.
CONCLUSIONS.

For the foregoing reasons, it is respectfully submitted
that the petition for writ of certiorari should be denied. :

Respectfully submitted,
FRANK C. JONES,
TIMOTHY K. ADAMS,

CHARLES M. COREL,
500 First National Bank Building,
Macon, Georgia 31201,
Attorneys for Respondents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0143%3A04. Public record. Not legal advice.