The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-12-01
HINGED ON A FINE POINT.
CLOSE REASONING IN DEFINING THE
LIMIT OF BENEFICIARY TRUSTS.
Chancellor Estes Decides tho Case Of
h. II. Heiskell, Executor, Va. Chicka-
saw Lodge No, o, l. o. o. F.-Some-
thing for Members OF the Order.

executor Of the last will and testament OF
Mrs Addie b. Howell, who died April
%, 1887, VS.. Chickasaw Lodge, No. 8, l.
o. o. f., ct al, was decide by Judge
Estes yesterday.
The bill was filed by the executor foi
the construction of certain clauses Of the
will and the settlement OF questions Of
doubt in the administration OF the estate.
The first part of the chancellor's de-
cision is devoted TO constituting or defining
certain clauses in the will relating to the
liability Of her dover from the estate OF
her deceased husband, II. b. Howell, for
taxes on the estate acquired under his
will, which is decided ailirmatiyely
He then takes up the decidedly inter
cslng features, charitable uses and
corporation as legltce," contemplated
in certain clauses OF the will, and defines
the law on both, rs follows
at is next insisted for the residuary
lcgutccs that the bcqucst Of the eleventh
clause OF the will TO the Chckaslw Lodge
No. s, l. o. o. f., is void That clause is
rs follows i give the proceeds OF my
81, 900, Union q Planters Insurance Com
pany stock, 10 Chickasaw Lodge No. 8, T..
o. o. + The dividends from said stock
10 be used by said lodge for the benefit Of
the widows and orphans The objections
made are that the Chickasaw Lodge No.
Is AN unincorporatcd society, and there
fore not capable OF taking property by be.
quest ~ devise, that II this be not so, its
power 10 hold property is limited, aud that
the limit was full before the will took
effect, and that the charity for the widows
and urphausi Is too indefinite TO DO sus-
tanned.
There can be no doubt, rs Judge Green
saws IN Dickson W., Montgomery lSwan,
aU2I, charities have been peculiarly
favored 10y the courts from the earliest
period Of the history OF our law aud |
brg leave to say that the spirit and policy
Of this court is and will be in ardent
sympathy with this sentiment Without
regarding the conflicting vicws OF the
courts in England and America, outside OF
Tennessee Ou lhc subject oi charitable
uses, 20 may be- said that the doctrine Of
the supreme Court is firmly settled ~ fol-
Iowa To render a charity valid it must
hH IN favor Of a person having sufficient
capacity to- take as duy-pc or dunpt 40 the
death of the tcstaior or il il be not to
such person, 1t must BE- definite In i,s OBJ
i,rt anl to be- executed and regulated
by trustees. lDan.l ". Fain. Lea,
Go; Green w. Allen, Hump, 1921
''lhc rule is further explained rs fol-
lows In other words. IL must have al
the elements OF valid giii oi the title,
oi her diryctly 10 the beneficiary or 10
trustee, with the trusts definitely srtlrd,
80 that they can be- fairly executed bv the
court by compelling the trustee to perform
them Reeves ". Reeves, Lea, GIG,
etc. Dickson w. Montgomery, | swan,
jiNl
1T Is further settled in Tennessee that
a corporation authorized 10 receive the
giit is q person capable OF taking by de-
vice within the meaning of the law but a
voluntary un.uCorporltcd association is
not. cobb ~ Denton, q las, 23j;
Inor., N W. pushytcu.tu Church. : lIris-
hui, GNs Daniel " lain, . liza, 33i. see
Ii.o buSs ". Ross. . Snrrd, 2ll; Franklin
yS iiusicld. > SuU,d. 500, White w.
Halo. . Caid., a.
"llyw ihr thi,kasaw Lodge No. s isno
The beneficiary ol the brIurst, bat tho
trustee. and the widows aud orphans are
constituted the ctsiue qui triNuuis This
Proposition b. clearly settled iu tine case NJ
Green vs. Allen, and uu pagc go oi the
vIOt ut thc ease IN oh Hump. 10 may be
remarked that lhU great source OF author.
iy IN Tennessee on the subject OF charita-
bic dcyiays n the exhaustive opinion If
Judge Iuhcy ia Green W. Allen. 5
Hump, which b. marked hy rtclier re-
tafCh aud learning than pcrhap, anv other
opinion Ui our courts That opinion N the
source ui thc rules which have Just been
stated
Then. under this doctrine. docs the be.
quest 1T Nrl Howell fulfill ila rrquir,-
mcn's' Thr first branch IT tho rontcn-
ton Is that ChicklsaW Lodge No. Sis un-
incorporated. aud therefore is incapable of
taking property as dcyisco or doncc.
Whether ur not 10 is incorporated involves
bath the question Ut legislative power and
Of legislative infant u n claimed, first.
that ihv lag stature dill not have the con-
si uiiunm power to create Chickislw
lnlsc No. = q corporation iu the manner
employed by the statutes. The c0ntcn.
iiuu j. That the subordinate lulyps mem
toned in the act are created corporations
10y thr delegation u legislative puw,rs 10
the Grand lodgc liihis be- Fo, the law
s unconstitutional, lur thu power 10 ere
ate corporations was, under the
Constitution 81 1884, committed 10 tho
legislative department Of the Government
and d b well settled TINT this rover cln.
not bc delegated. Whether by the terms
ut The act the legislative power was dele.
Hatrd b. the question. and In the prrscnt
discussion % must be- assumed that it was
intended by thc act to make thczc subor-
dinatr loigDs independent corporations
Whether tHIs assumption b. correct will be
presently discussed Lot the statutes be
considered
"By the art pags,d January ~. 1910.
Tho Grand Lodge OF the independent
orlvrui Odd Follows Of the State of Ton.
nysiUv, n incorporated. with power 20 ne.
qu'tu, bold, pust,gs, use. occupy and enjoy
rcal and personal estate 10 the amount Of
tlluUl, aud to scll aud convey. OF other.
wise dispose ol. tho same. under by.
laws, rules Ani regulations Of said
lolsc, aud a. boz competent 10 con.
tract and Boz contracted with. 10
sue aud be- sued, plead aud he
unploAlri, answer, etc, la III courts aud
places Nhalgpcycr, aud 10 have and use a
common seal This IL clearly and fully
an act Of Incorporation oi tho Grand
lodgc. On the 2Oih 1T December IsI,.
ne legisluturu ptsscd nn act On amend
The last mentioned act. The tint section
oi This act ~ amended the other act ns 10
incrrnsc % SO. 0oO the amount Of property
The Hfand lUdfc might take, etc Section
2 provides That wherever said Grand
Lodge shall charter subordinate lodge.
the said subordinate lodge Il hereby
invested With the separate right 10 an
amount OF real aud personal property not
exceeding ihr sum of $1,000, 90 the same
c1lcnh and under thc guards aud rcsiric-
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