Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1885-10-02
DR.. Jouett Churchman'S Estate.

| CONSTRUCTION OF Ills WILL BY THE
COURT OF APPEALS JUDGE M'LAUGH
Inns DECISION REvERsED-THE PROT
EsTANT EPISCOPAL EDUCATIONAL So
CIETY TO HAVE ITS REQUEST.
&C., &C. &C.
DR.. Henry Jouett Chrrchman, native
of Augusta county, who emigrated to the
West in youth, served during the civil
war as Surgeon in the U. 5. Army, and
at it's close returned to reside in Staun-
ton, died here Jan. %, 1881. He left a
will dated September 22d, 1880. con-
tanning the following provisions; 1t pro-
vided fund of 81 900, the interest OF
which was for the benefit of his niece,
Alice Clark Councilman then aged fifteen
during her life, the principal, at her death
to go to the Protestant Episcopal Educa-
tional Society of Virginia. Itprovided two
funds of So coo each, the interest on which
was for the benefit of his nepheWs Vim
cent Tapp Churchman and Henry JCuett
Churchman, Jr,, until they severally ar
rived at the age Of twenty-one years, at
which time the principal was to go to the
Protestant Episcopal Educational Society.
1t gave a legacy of 81 900 to testator's SIS
ter, Virginia Churchmap, in absolute
right, and then directed that all the bal
anc of his property amounting to about
So 900, should be Immediately paid to the
trustees of the Protestant Episcopal Ed.
| ucdtional Society to be used according to
| the express term OF the will, ''ETclusicelu
for educating poor young men for the
| Episcopal ministry upon the basis OF Evan
| gelical principles as now established" BY
! two previous wills, made respectively in
September, 1874. and December, 1879, DR..
Churchman had indicated similar requests
| to the same Society.
| The administrator of the will, W.
7. hush, Esq, took it to the Cir
cult Court of Augusta county to lie
construed by Judge Mclaughlin. The
following was Judge McLaughlin's inter-
probation of the will rendered in June.
1883
| And the court now proceeding to interpret
and expound the will of the testator Henry J..
Churchman, decd, and especially the validity
of certain requests and devises therein con-
| tanned, doth declare that the portion of the
4th clause of said will which says, cat the
death of said Alice Clark Churchman, when
ever that may be, the principal sum of four
thousand dollars ($4,000) and any unexpend-
| ed interest shall be paid to the Trustees of
the Protestant Episcopal Educational Society
| of Virginia, said bequest to be used exclu-
sively for educating poor young men for the
| Episcopal Ministry, upon the basis of Evan
gelical principles as now established" does
| not give said legacy absolutely to the Trustees
| of the Protestant Episcopal Educational
Society in Virginia, ''for its own use as a cor
porate BODY, but the same is given to said
corporation in trust, to be exclusively used
| for the purposes therein named; that the
uses and trusts declared by said testator are
null and void, because said trusts are religious
in their character, and too vague and lndeh-
mite to be upheld under the law Of the State
or to be administered by court of chancery,
| even if said trusts were merely educational as
contemplated by section 2, chapter n, code
of Virginia 1878. And for the same reasons
the legacies given under the 18th clause, and
9Th clause, and 9Th clause of said will are de-
| cared by the court to be null and void, and
as to such portion of his estate as the testator
attempted to give to said corporation, upon
the trusts named in his will, passes to the
distributes and heirs at law of said testator as
property uudisposed of by said will, &C., DC
The "heirs at law" to whom the proper.
| ty would have gone had this decision stood
are John Will Churchman, Miss Sallie
| Churchman, Mrs. Fannie C. Geiger, Miss
Virginia M. Churchnaan. John q. Steele
| Frank Churchman, Mrs. Anni5 KreglOe
and the three children named in
the will. Judge Shelley. the counsel
tlonal Society on behalf of his client
took the case to the Court of Appeals
4 On Thursday last 1t was decided by re-
4 versing the court below, and in favor OF
the will. Richardson j., delivered The
opinion of the Court 10 which Fauntleroy
j., and Lacy j., concurred, and from
which Hinton and Lewis dissented.
The following embodies the result of the
opinion:
sAnd this court proceeding to enter sucl
decree as the said Circuit Court ought to have
entered, it is further decreed and ordered
and is hereby declared that the requests con-
tanned in the fourth, fifth, si4th and eight
clauses of the will of the testator, I'll. J
Churchman, decd, to the trustees of the Prot
estant Episcopal Educational Society in Viz
ginia, an educational institution incorporated
by an act of the legislature of Virginia, ap
proved on the 9Th day of January, 1875, il
the proceedings in the cause mentioned, were
intended to he. and are charitable donations
to said Society in trust for the use prescribed
by the testator, which use falls within the
scope of the purpose for which the said Socie,
ty was incorporated and exists"
"That there is nothing in the policy or law
of the State Of Virginia, which renders ssiC
requests imperative or void, but on the con
trary the same are legal and valid; and thai
the said legatee corporation is entitled to the
benefit of said requests. and to receive thu
subject thereby bequeathed, as prescribed b,
said testator &C., &C."
SIT is ordered that the cause be remanded te
the said Circuit Court to be further proceeded
into final DECREE, as may be proper and il
conformity with the foregoing opinion ans
decree, which is ordered to be certified to tn,
said Circuit Court of the county of Augusta.
This decision of tie Court of Appeal
sends al! the property involved IN the viii
in the direction which tt tez5ator willet
It should go, except soma of 1t which lies
in Missouri and Nebraska. In those States