[226 U.S. 126, 127] Messrs. Henry E. Davis and J. K. M. Norton for appellants.
[226 U.S. 126, 130] The court declined to hear Mr. Walter C. Clephane for appellees.
Mr. Justice McKenna delivered the opinion of the court:
Suit by appellants as heirs of Levin M. Powell, to declare void a trust created by his will, and to recover certain real estate held by the George Washington University, the legal successor of the Columbian University.
Levin M. Powell was, when he made his will, an admiral in the United States Navy, on the retired list. The clause which creates the trust is as follows:
The bill alleges that the Columbian University, supposing it had the right to execute the trust, took possession of the property, and has let it to various tenants, and for more than sixteen years has issued a catalogue publishing its classes, the names of all of its students, instructors, and officers, and the many and various schools of education it maintains, and that the catalogue is widely circulated throughout the United States. The University has, it is alleged, for a like period advertised 'The Powell Scholarship,' and notwithstanding the wide circulation of the advertisement, the University has been unable to execute the trust.
It is alleged that the devise is so indefinite and the trust intended to be created so uncertain of its objects and sub- [226 U.S. 126, 133] jects that it is impossible of execution by the Columbian University, or by the Johns Hopkins University, and has in no wise been executed by either of them; and that therefore the trust is wholly void and of no effect. The collection of the rents and profits by the Columbian University is alleged. It was prayed that the trust be declared void and that the Columbian University be required to account for the rents and profits collected by it.
A demurrer to the bill was overruled, which ruling was sustained by the court of appeals. 25 App. D. C. 124.
The court of appeals held that the devise created a special charitable trust, and that it was not void for uncertainty or incapacity of execution apparent upon its face. The court, however, held that the nineteenth paragraph of the bill, which alleged that the impossibility of the execution of the trust had been demonstrated, statesd a cause of action, and remanded the case for further proceedings. Upon the return of the case to the supreme court, the University answered, by which it traversed the allegations of the bill, and alleged in effect that it undertook the trust and has ever since efficiently executed it. It further alleged that its codefendant, the Johns Hopkins University, is able, ready, and willing to accept and administer the trust at any time, if for any reason it should be impossible for it, the Columbian University, to administer the same, or 'should fail to carry out the trust in that regard reposed in it.'
Testimony was taken, and the trial court found from the facts proved the following:
Second. Granting that the testimony was sufficient to demonstrate the inability of the Columbian University to execute the trust, it did not appear that the Johns Hopkins University might not be able to do so, and that until it 'has tried and failed, the court would certainly not be justified in frustrating the intention of the testator by bestowing the property upon' the plaintiffs, 'related so remotely to him.'
The court of appeals practically affirmed these conclusions. The court said that while the testimony did not show that the expectations of the testator have been fully answered, and that it had failed 'to show that the entire net proceeds of the trust property have been devoted exclusively to the purposes of the trust, and none other, it was sufficient to show that the trust can be executed, as well as that, in some measure, it is being executed.' The court said further that it was unimportant to con- [226 U.S. 126, 135] sider defects of execution of the trust by the Columbian University, as that possibility was contemplated by the testator, and the Johns Hopkins University appointed as an alternate trustee, and as its ability to execute the trust was asserted and not denied, 'it must be taken as true.' These conclusions, so far as they depend upon the testimony, not being manifestly erroneous, we must accept, being the decisions of two courts.
The legal proposition, however, which determined the ruling upon the demurrer and the first decision of the court of appeals, is open for consideration. That court, as we have seen, decided that the will created a special charitable trust, and that the trust was not void for uncertainty or incapacity of execution apparent upon its facts. These propositions are contested. It is contended, first, that the 'object of the testator must be clearly charitable; and, second, the thing he directs to be done must, in its execution, accomplish the charitable object, in some degree, at least.' It is argued that these conditions are not fulfilled by the devise because, it is said, 'the testator had no idea of assisting either of the universities named, or of assisting anyone merely to get an education,' and, further, that 'his sole purpose, as he himself stated, was 'to make some contribution to the Navy of the United State."
The devise, we think, satisfies the tests. The object of the testator was not 'to make some contribution to the Navy of the United States.' Such contribution was but an incidental effect, or rather, the mere inducement to the testator's benefaction. The testator's special object was, so far as his property would accomplish it, to give to young men not having the pecuniary ability to prepare themselves, the opportunity to do so. Preparatory training was necessary; he made it available, to the extent of his means, to young men who otherwise could not bear the expense. And he knew the conditions of appointment, [226 U.S. 126, 136] in whom it rested, and the contingencies upon which it depended. If the field of candidacy was limited, he knew that he was helping some to aspire and qualify to succeed. The knowledge and help were definite. He certainly could not designate the individuals. That could be done, and necessarily was left to be done, by his trustees, one or the other of them. The purpose of the testator has not been disappointed. In other words, the charitable object has been accomplished, 'in some degree, at least,'-the test which appellants apply. The finding is that at least two out of twenty-four of those who availed themselves of the scholarships instituted by the Columbian University entered the Naval Academy. We can suppose a better result from a better administration of the trust.
The testator had in view another career for young men besides the Navy, which could be attained by the same means; that is, 'the places of mates or captains in the merchant marine service of the United State.' But it is said that 'there is no such thing' as the merchant marine service 'known to the law,' and that 'wherefore the meaning of the testator in this behalf is left open to ascertainment outside of the testator's language and the provision of the will.' The criticism is too exact. The merchant marine was and is a very definite and substantial thing, and had unmistakable definition in general, if not in legal, nomenclature. The meaning of a testator is not required to be found in law lexicons; the usages of popular speech may furnish a guide to it. Besides, the words 'merchant marine' receive certain meaning from their context, and it is easy to put one's self in the place of the sailor testator and appreciate his impulse and purpose. His relatives were remote, his property not large, and he had been an officer in the United States Navy. He desired to assist others to become also officers in that service or in a cognate service. He knew the equipment necessary and he prescribed it. He chose proper educa- [226 U.S. 126, 137] tional instruments to confer the equipment and to select and qualify the candidates for the designated services. The purpose of the testator was worthy, and there is nothing in reason or authority which requires us to pronounce it legally insufficient.