IN THE SUPREME COURT OF ALABAMA - Samford...

IN THE

SUPREME COURT OF ALABAMA

FOURTH DIVISION No. 538

JULIA HENDERSON TUMLIN, ET AL

vs.

T~OY BANK & TRUST COMPANY, ET A L

APPELLEES' REPLY TO APPELLANTS' BRIEF ON APPLICATION FOR REHEARING

For the Trustee:

MARION RUSHTON, J. H. WILKERSON,

Attorneys.

For the Attorney General, A. A. CARMICHAEL,

ProSe.

Samford University Library

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IN THE SUPREME COURT OF ALABAMA

FOURTH DIVISION No. 538

JULIA HENDERSON TUMLIN, ET AL

vs.

TROY BANK & TRUST COMPANY, ET AL

APPELLEES' REPLY TO APPELLANTS' BRIEF

ON APPLICATION FOR REHEARING

FOREWORD

Our first reaction to the overzealous and intemperate brief which appellants have filed on application for rehearing was to ignore it. This case has been before this Court twice, two full-dress oral arguments having been heard by the full Bench and more than two dozen briefs have been filed by the parties. The opinion (56 manuscript pages with two dissents of 17 and 22 pages, respectively) shows that this case has been given long and painstaking consideration by the entire Bench. It is doubted that any case in recent years has received more of the Court's time and effort. Apparently counsel on both sides have given the Court the full benefit of all the legal knowledge they possess or could acquire. Appellants cite no new cases, no new principles are invoked, and it seemed hardly possible at this late date that any point of law or the application of law to the facts could be raised which had not already received careful consideration.


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Counsel for appellants, however, not content with filing their

brief with the Clerk of this Court, have seen fit to circulate it

throughout the State and to discuss it with the Bar and the

public far and wide. Apparently they seek another t ribunal,

hoping in some fashion to brin g such pressure to bear upon

this Court, or some of its members, as will embarrass them into

abandoning their own opinions and to substitute others favor

able to appellants. The barbed innuendoes, the specific rhetori

cal questions directed at individual Justices by name can have

no other purpose.

Neither the Supreme Court of Alabama, nor any Justice thereof needs defense at our hands. All of them are gentlemen of the highest character, judicial craftsmen of wide experience who handle heavy dockets with almost monastic devotion to duty. The nature of their positions requires that they announce the law as they see it, leaving the chips to fall where they may. They are entitled to credit for legal integrity even though their decisions are not pleasing to litigants or counsel. Members of the Bar are duty bound to aid them with light, not heat; with the citation and application of sound legal principles, not personal pressure to a given end. Criticism of individual members of the Court, widely circulated to the Bar and public, which rarely is acquainted with the full record and proceedings in the case and have only partial knowledge of the actual issues, is pregnant with great harm and should be answered.

In the nature of our practice, members of the Court so at

tacked are powerless to reply. Hence this brief.

We propose first to call at tention to some points of law forgotten or ignored by appellants, and then to show from the

record, without misquotation or deletion of pertinent parts,

that the efforts to embar rass individual members of the Court are without excuse.

I''


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POINTS OF LAW

I

When the bill of complaint seeks to establish a specific construction of a will upon which its equity and complainant's asserted rights depend, the validity of such construction may be tested by demurrer.

Walls vs. Walls, 218 Ala. 147, 117 So. 670 Crawford vs. Carlisle, 206 Ala. 379, 89 So. 565 Sparks vs. Woolverton, 210 Ala. 669, 99 So. 102; McCraw vs. Davenport, 238 Ala. 245, 189 So. 884; McCraw vs. Wilson, 238 Ala. 247, 189 So. 885; Tarver vs. Weaver, 221 Ala. 663, 130 So. 209; Henderson vs. Troy Bank & Trust Co., 250 Ala. 456; 34

So. 2d 835; Borchard: Declaratory Judgments, PP 24-36.

II

Where a demurrer was again properly sustained to a bill in equity after it had been amended several times and no request was made for further amendment, trial court's dismissal of the bill was not error, the Court not being bound to assume that further opportunity to amend would produce a different result.

Pinkard vs. Ledyard, 251 Ala. 648, 38 So. 580;

Alabama Lime & Stone Co., vs. Adams, 222 Ala. 538, 133 So. 580;

Anderson vs. Byrd, 251 Ala. 257, 37 So. 2d 115.

m

There is no difference between the unanimous opinion of this Court, written on the first appeal by Justice Stakely, and the majority opinion, written on the second appeal by Jusice Foster, except that in the first opinion, the Court found it unnecessary to comment upon appellees' contention that complainants

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could take nothing upon violation of statu te against accumulations while the second held that contention good.

Henderson v s. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835;

Tumlin vs. Troy Bank & Trust Co., 4 Div. 538 MSS.

IV

Between strangers, costs should follow the event.

P~ateau Community Ass'n., vs. Green, 243 Ala. 531, 10 So. 2d 860.

1.

The first proposit ion advanced in appellants' brief on rehearing is a procedural one and is directed at J ustices Livingston and Lawson because of their conduct in "ignoring" a procedural point which appellan ts base upon the Blackwell cases.

BZackweH vs. Burketts, First Appeal, 1948, 251 Ala. 233, 36 So. 2d 326;

Second Appeal, 1949, Ala. 43 So. 2d 534.

On the first Blackwell case, (majority opinion by Justice Simpson) these Justices concurred with J ustice Brown in a dissent as follows:

"BROWN, LIVINGSTON AND LAWSON, J . J ., concur in the conclusion that the demur rer was properly overr uled but opine that a specific construction of the will on demurrer is out of order even though both parties seek it and rest their rights on such a construction."

A reading of the case will show that "the will" referred to in the above excerpt was ambiguous on its face. The parties to the litigation were persons nam ed in the will as legatees and "no collateral facts were alleged to shed light on the testator's


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intention." Furthermore, the demurrer was overruled, not sustained. But appellants do not give Justices Lawson and Livingston, nor the readers of their brief, the benefits of a statement of these facts which differentiate it from the case at bar.

There can be no inconsistency where there is no similarity; nevertheless, despite the absence from their bill of any allegat ion that Governor Henderson's will is ambiguous, despite their contention, that for the purposes of their case, the will is to be interpreted regardless of the testator's intention (see their brief, Page 69), despite the fact that complainants are not suing as legatees and despite the fact that nine transcript pages of "collateral facts" were alleged by them, appellants make the Blackwell case the basis of the following attack upon Justices Lawson and Livingston:

"That is what you said about it last t ime it came before you, when it wasn't even urged. It was your own voluntary expression.

"So declared J ustices Livingston and Lawson on J une 30, 1948, the date of their last expression on the subject.1 If they are of the same opinion now this case should be reversed.

"There is no criticism of the bill as a matter of pleading.~

The demurrers were sustained (and affirmed here) admittedly and solely by virtue of the premature construction on demurrer which J ustices Livingston and Lawson say is 'improper, even where both parties seek it'.

"It is our duty to ask of Justices Livingston and Lawson: "What is your opinion now?

1- ..JusUce Lawson later expressed himself in the opinion which he wrote i11 thlS same case on the second appeal in 1949, 43 So.2d 534, which appellants. for the moment, have forgotten. (See appellants' b rief on this application. Page 8.)

2-Appellees specifically asserted, by ~trounds of demurrer Nos. 8. 13, 14. 20, 43. 44, 45, 46, 54, 55, 56, 57, 58, 72 and 75, tha t the pleadings failed to show such right , title or Interest ln appellants as entitled them to maintain the suit. Tr. PP 85-88.


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"You should give it careful consideration, bearing in mind that if you stand by what you said in the Blackwell case on June 30, 1948, it will require the reversal of this case. You cannot vote for affirmance if you are willing to apply the same law to us." (Appellant's igregious Italics ommitted.)

There is a particularly nasty and undeserved innuendo at the bottom of Page 6 of appellants' brief to the effect that the Court has not read appellants' brief and reads only appellees'. The 56-page opinion written by this Court with two dissents is ample refutation of this charge. It is patently false, it really tends to shake confidence in the Court and no protestations of "duty" or obligation to clients can excuse it.

The attack is continued on Page 7:

"There are two methods of treating with this issue. One

method is to ignore it; the other is to decide it.

"We have let ourselves suppose (apparently erroneously) that J ustices Livingston and Lawson, along with the other members of the court, would give personal consideration to each of the issues presented for decision and even entertained some hope (quite erroneous) that each would express his own independent views and reasons on each of the issues presented in order that his position might be examined on application for rehearing and stand or fall as it deserved. But we are conscious that each justice has burden a plenty with his own cases and we probably expected the impossible. Yet there is some disappointment."

The at tack is further continued on Pages 7, 8 and 9, centering on J ustice Lawson who wrote the opinion on the second appeal of Blackwell vs. Burketts. Justice Lawson's language in that case is paraphrased, quite unfairly because the procedural picture was entirely different, to suit appellants' purposes; but, significantly, appellants entirely omit the first paragraph of Justice Lawson's opinion which discloses the existence of a


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valid cross bill which, of course, had to be further processed before the case was ready for final decree.

It is to be noted that throughout all this tirade, neither Justice

Brown nor Justice Simpson is taken to task for "ignoring" this

proffered procedural issue, although neither Justice Brown, in

his 17-page opinion, nor Justice Simpson, in his 22-page opinion,

made any mention of it whatever.

The truth of the matter is that this procedural point was

settled by the unanimous (not "majority", as appellants state

in their paraphrase, ) opinion on the first appeal in

this case (250 Ala. 456, 34 So. 2d 835) and that is all the con

sideration which any of the Justices, whether now concurring

or dissenting on the merits, felt that it ever deserved.

"While we are not certain that appellants insist on the point, we think it well to mention at the outset that we are dealing with the construction of a will on appeal from a decree on demurrer. However, we do not mean to depart in any way from such authorities as Fillmore vs. Yarbrough, 246 Ala. 375, 20 So. 2d 792. The situation here is different. In the present proceeding complainants seek to establish a specific construction of a will. It is conceded that the will is not ambiguous. Upon such specific construction the rights asserted by complainants must depend. In such a situation the allegations of the bill may be tested by demurrer. Walls vs. Walls, 218 Ala. 147, 117 So. 670; City Bank & Trust Co. vs. McCaa, 213 Ala. 579, 105 So. 669; Sparks vs. Woolverton, 210 Ala. 669, 99 So. 102; Crawford vs. Carlisle, 206 Ala. 379, 89 So. 565. The foregoing cases were decided prior to the declaratory judgment act, but where there are no collateral facts to shed any light on the testator's intention and the bill shows, as here, that the rights of the complainants must depend on a specific construction, we see no reason why such position may not be attacked on demurrer. The effect of the ruling on the


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demurrer can be shown in a declaration of rights in the final decree."

This announcement of procedural law on the first appeal was concurred in by the unanimous Bench. On the second appeal, while there was dissent on other points, there was none on this. If any Justice, or two Justices, are to be pilloried for ignoring the point, all, even the two who "warrant the gratitude of the Bar" for "restoring confidence in our constitutional guarantee of exact justice under the law" (appellants' brief, Page 2) should be pilloried. There is no excuse for singling out Justices Lawson and Livingston.

"Is it a white horse or is it a black horse?" Appellants pose this question to the Court (their brief, Page 8) along with instructions to the Court as to what named members must do to regain their intellectual integrity. Permit us to answer; the Blackwell cases are "black horse" cases, the Henderson will case is a "white horse" case. In the Blackwell and similar cases, such as FiLLmore vs. Yarbrough, 246 Ala. 375, 20 So.2d 792, the contest it between parties who admit the validity of the will, but say it is ambiguous on its face and want its meaning adjudicated. In the Henderson case, appellants do not admit the validity of the will, they say it is illegal for two specific reasons. They do not assert it is ambiguous, they do not ask that the testator's intention be established to resolve an ambiguity, they say the will must be interpreted regardless of, or even contrary to, the intention of the testator. Procedural rules laid down for interpreting a valid but ambiguous document have no application in a case where the document is alleged to be illegal. Further, even if the rule of the "black horse" cases were to be applied in this "white horse" case, the record shows that "every fact and circumstance" surrounding the writing of the will has been alleged and admitted for the determination of the legal points appellants have raised. So whether it is a "black horse case" or a "white horse case," appellants have no cause to complain of the procedure in this case.


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Appellants complain that they have not had their day in court (brief, Page 4) that the issues have been prejudged (brief, Page 4) that the submission was only for decree on demurrers (brief, Page 10) and that Justices Lawson, Livingston, Foster and Stakely are "unwilling to give us the benefit of the law as they declared it six months ago."

Already we have seen that the complaint made specifically against Justices Lawson and Livingston is unfounded. What of these other charges? What really happened in the trial court?

Appellants misquote the decree (brief, Pages 10-11) of the trial court in one important detail and omit others equally significant. The misquotation consists in making it appear that the trial court opened its decree with these words, "This cause coming on to be heard," when what the Court really wrote was, "This cause again coming on to be heard." Tr. PP 93. Why was the word "again" deleted? Why are the words "The issues were directly involved in the former submission•· left out? Why are these words included, "The decision is the law of the case and there is no need for this Court to discuss the legal proposition," without including this sentence from the decree, "It is the opinion of this Court that said decision is eminently sound."

But most significant of all, why is this paragraph of the trial court's decree entirely omitted?

"It is the opinion of the court that the demurrers addressed to the bill as a whole and to the several aspects are due to be sustained. As the bill cannot be amended so as to show any property rights in complainants as to the trust fund, the bill must also be dismissed. However, as stated in the opinion on appeal in this case, the effect of the ruling on demurrer can be shown in a declaration of rights in the final decree." Tr. P. 95.

What else could the Court do? It had before it an unambiguous document claimed to be illegal on two grounds, but these


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grounds were not good, although many pages of collateral circumstances had been alleged in support of them, and, on demurrer, admitted to be true. The only question before the Court was one of law and that was settled. Appellants did not offer to amend further, either then or later. Appellants' suggestion that the trial court ought then to have permitted them to "take testimony" is absurd. What testimony? Everything they alleged, both the will and the "collateral facts," was admitted. There was nothing the Court could do but dismiss the bill.

The record shows that appellants then made an argument "that costs should not be taxed against them." Tr. p. 96. By so doing, they waived any objection as to lack of notice of the additional action the Court was taking. Even if they had moved for a continuance on the ground that they were not prepared and the Court had no authority to move without longer notice to them, they were there before the Court and the Court could (and should) have overruled such a motion without error. But they made no such motion-instead, they argued the matter of costs in open court and waived the objection they now raise.

They cannot now put the trial court in error on any of these procedural grounds. When a demurrer has again been properly sustained after the bill in equity has been amended several times and no requests was made for further amendment, the trial court's dismissal of the bill was not error, the Court not being bound to assume that further opportunity to amend would produce a different result. Pinkard vs. Ledyard, 251 Ala. 648, 38 So. 2d 580, and authorities cited Point II, supra.

Have appellants any genuine complaint of their treatment by the trial court? They came into that Court, asking not for affirmative relief, but for a declaration as to their rights in Governor Henderson's estate. They might have sued in ejectment or detinue or assumpsit, but they chose the declaratory remedy. They put before the trial court not only a copy of the


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will, but many pages of collateral facts. Even if the principle involved in the Fillmore and Blackwell cases applied, it was fully observed in this case. Appellants have had every opportunity to set up the "collateral facts" and they have availed themselves fully of it. The bill has been drafted three times over a period of one and a half years of active litigation before this submission. Appellees "formed an issue" on all these allegations by demurrer, saying in effect, "And so what?" They might have moved to strike them as being an effort to vary by parol the terms of a written instrument. Instead, they offered an issue of law which brought the "collateral facts" just as effectively before the trial court as if they had been proven.

The spirit and function of the Declaratory Judgment Act is to get actual controversy before the courts for determination with the least possible delay and expense. Can appellants complain of the functioning of the remedy they chose? If all the facts they allege had been proved before a jury, appellees would have been entitled to the affirmative charge. At some point in any procedure appellants might have taken, they would have been faced with the proposition that Governor Henderson's will as a matter of law is not subject to the at tacks they made upon it, which are the basis of their asserted rights.

2.

The next matter upon which we ask to be heard is the accusation that Justices Stakely and Foster have concealed the provisions of Governor Henderson's will from the public, the bench and the bar and have avoided the issues presented on appeal. This is not so.

The provisions of the bill and of the will were set out by Justice Stakely, beginning on Page 462 of the official report of this case, 250 Ala. 456, and they occupy three printed pages. They cover every provision of the will set out and some not set out by Justice Brown in the statement of the case by him,


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which appellan ts so highly approve. For example, appellees

attach considerable significance to the language to be found at

the end of Item VI of Governor Henderson's will, where, wind

ing up the provisions of the will as to trusts, the testator

declared,

"The trust shall never lapse for want of a Trustee under

the arrangements hereby set out and the trust is created

in perpetuity for the educational and charitable purposes

set forth in this instrument."

This important declaration shows first , we think, that Governor Henderson regarded all of the estate conveyed to his Trustee as being one t rust for aid ing h is chosen kin while carrying out his educational and charitable purposes and, second, that he was entirely willing that the "arrangements" made by him be subordinate to the main purpose of carrying out the educational and charitable purposes. Neither J ustice Brown nor Just ice Simpson recited or discussed this final summary provision in their opinions, but we do not therefore accuse them of misreporting the "true provisions of the will." We know they simply did not regard this language of noteworthy importance.

The statement (Page 15) that Justice Stakely did not even mention appellants' contention that "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 ru le against perpetuities, is an application of the cy pres doctrine" is difficult to r econcile with appellants' statement on Page 18 quoting J ustice Stakely as having said, "As we see the case, the doctrine of cy pres is not involved." As a matter of fact, the larger part of the opinion on fir st appeal is devoted to a consideration of this contention. (See Headnotes 12-19) . The lengthy quotation from the Virginia case of Thomas vs. Brown, 185 Va. 845, 40 SE 2d 487, 169 ALR 257, could have no purpose except to "face this issue squarely."


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Neither is there any contradiction between t he opinion written by Justice Stakely and that written by Justice Foster. The ratio decidendi is the same. Justice Foster summarized it on of the manuscript opinion.

"We think the trust estate vested at the death of Governor Henderson both as to the legal and beneficial interests, and that the accumulations are not controlled by the statute and are not violative of the common law r ule in that respect."

He does not rely upon cy pres or approximation, but upon the plain terms of Governor Henderson's will which vested the charitable trusts instanter upon his death.

What Justice Foster has to say about cy pres and approximation is by way of patient answer to appellants' oft urged contentions and of comment upon the lengthy arguments made by both appellees and appellants in explanation of these doctrines, both as to their history and application in various jurisdictions. He recognizes them as rules of administration, not powers to rewrite a testator's will. The essence of what J ustice Foster says about them appears on Page 4 of the opinion.

"In short, this means that when the execution of the trust cannot be administered exactly in accordance with the terms of the trust instrument (the beneficiary being ascertainable), a court of equity may vary such details of administration to secure the object for which the tr ust was created."

Justice Foster takes considerable care to show that the Charles Henderson Educational Association is in no sense the beneficiary of the trust.

"The charity intended by the testator is not this association. Such an association is but an administrative agency of the trust; a detail in the process of securing the object


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for which the trust was created-building and equipping school houses. * * * The beneficiaries are the public in Pike County to be benefitted by the State school buildings. * * * It is an ascertainable object designed and expressed by the donor. It is no objection to such a trust that the Trustee, or some administrative agency, it presently incapable of taking on the duties. Since the object is clear and clearly described, the want of a trustee or his assistant will be supplied by a court of equity."

As we have seen, Governor Henderson specifically provided for this. Tr. .

"The trust shall never lapse for want of a Trustee under the arrangements hereby set out and the trust is created in perpetuity for the educational and charitable purposes set forth in this instrument."

Justice Foster, on Page 7, MSS opm1on, goes even further to instruct appellants' counsel as to the fallacy of their theory of the law on cy pres by saying :

"We think the theory of appellants' counsel on the cy pres principle is erroneous in assuming that Alabama has never adopted the equivalent of judicial cy pres under the name of approximation, and that the educational association is the beneficiary of the trust. But neither is the fact."

"The gift here is not to a charity which is not in existence and whose coming into existence is uncertain or contingent upon an uncertain event. The charity is not the association."

"Here the gift is not on any condition whatever. It is irrevocably dedicated to the building and equipment of school houses. There are certain standards set up to justify its application to a certain situation. But a failure to comply is not a condition to the charity. * * • There is a clear


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distinction between those parts of the instrument which (1) declare the gift and its purpose, and (2) those which direct the mode of its administration."

The only difference between the opinion writ ten by J ustice Foster and that written by Justice Stakely is that in speaking of accumulations, the Foster opinion holds that since the equitable title to the corpus vested in the charities, the heirs at law are not concerned and would not, even if the statute were violated, share in the distribution. This point was raised, but not decided, on the first appeal. Certainly approximation has nothing to do with vesting and certainly approximation cannot change an executory interest into a vested one, or a future interest into an interest in praesenti; but when the interest is vested, there is no field of operation for the rule against perpetuities nor, so far as appellants are concerned, for the operation of the statute or rule against accumulations.

3.

We do not share the confusion exhibited by appellants in understanding what this Court has done on this appeal. Justice Foster has written the majority opinion on the merits of the case. Justice Stakely concurs. Justices Lawson and Livingston agreed in the result on the merits and Justice Lawson specifically so stated. As to the procedural point, none of the Justices thought it worth mention. Apparently they were content with the rule announced for this type of case on the first appeal.

Justice Simpson thought the litigation had been of some benefit to the trust and that the costs should have been assessed against the estate, but did not state that he felt the trial court had abused the discretion vested in it. As to this point, Justice Brown agreed with the majority as he did not dissent.

4.

We earnestly request the Justices who have written dissent-


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ing opinions again to examine Governor Henderson's will in the ligh t of the following considerations:

1. Governor Henderson 's plan in the final analysis was to create at once "a revenue producer" (Tr. P. 15) , a foundation like the Carnegie, Ford, Rockefeller, Rhodes and other Foundations which from the date of the founder's death spend, or plan to spend the income earned by the fund, nothing else. There are no transfers or executory devises of the corpus. No legatee, individual or charitable, receives any of the corpus, the Trustee always keeps it, spending the earned income only for certain well defined objects, one after another. The fund is just as vested now as it will be in 1977, when its earned income goes to the Hospital. Even if Mrs. Henderson or Mrs. Weedon had a life estate in some part of it , the remainder was vested in charity, not contingent on anything but death or the passage of time. See 7, infra.

2. The law favors a vested rather than a contingent estate and unless a contrary intention clearly appears, an instrument will always be construed as vested rather than contingent. The trust res in part at this very moment is making money to build school buildings in Pike County in 1957, perhaps earlier.

3. The foregoing attitude is especially applicable to charities and courts are always "keen sighted" to make all reasonable intendments as to their validity.

4. An estate is nonetheless vested because enjoyment is postponed.

5. If, instead of "that part of the public to be benefitted," the ultimate equitable owner of the Henderson trust were an individual, it would become a private, not a charitable, trust: The "character of uncertainty" as to individual beneficiaries is what dist inguishes a public from a private trust.

6. The part of the public to be benefitted by Governor Henderson's charitable trust is described in perfectly identifiable terms, namely, certain school children and communities in Pike County and the crippled children of the State.


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7. Regardless of legal terminology and definitions of "cy pres" or "approximation," no Alabama cour t has ever struck down a will which places the fund in the hands of a legal Trustee and directs the expenditure of its income within a period measured by lives in being plus twenty-one years and nine months for public charities. Typical of these cases are three which may be analyzed as follows:

CASES

Williams vs. Pearson 38 Ala. 299

Tarver vs. Weaver 221 Ala. 663, 130 So. 209

AGENCY TO DIRECT EXPENDITURE OF

INCOME BENEFICIARY

Commissioner to be ap- Ministers then having pointed or elected af ter charge of churches in death of living daugh- the P ilgrim Rest Ass'n. ter. and the education of

paupers and poor children of Vienna and Cochrans Mill Beat.

Individuals to be elected The poor of S e 1m a , after death of sister as need ing hospitalizat ion; Rector and Wardens of students deemed worthy St. Paul's Church (not under certain rules. the church).

Johns vs. Some association to be Orphan children, indiB'ham Trust selected after the death gent and needy minors & Savings of testator's wife. in J efferson County or Co., 205 Ala. State. 535, 88 So. 835

8. That the initial words used by Governor Henderson in establishing his trust were words of full conveyance:

"I hereby give, devise and bequeath all the rest and resi-


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due of my proper ty * * * in trust • • • for the following

uses and purposes." Tr. PP 7.

and the closing words were:

"The trust shall never lapse for want of a Trustee under

the arrangements hereby set out and the t rust is created

in perpetuity for the educational and charitable purposes

set forth in this instrument."

9. Governor Henderson made no "gift over" in the event his

directions were not carried out; established no forfeitures for

condition broken in favor of his heirs or anyone else.

10. Appellants sue as heirs at law, volunteers standing in the Governor's shoes. Suppose that, inter vivos, Governor Henderson had established a trust fund embracing exactly the language he used in his will. Suppose he had then changed his mind and came into court claiming his property back on the grounds his heirs now assert. Would the court listen to him long? Would it not say to him, "No, you had and executed an intention to give your estate to charity and turned it all over to a Trustee for that purpose. You evidently thought the matter over quite fully for you provided pretty carefully just how you wanted the money spent. Those provisions for administering the trust may or may not prove practical as the years go by; but in that event the Equity Courts will vary the details to carry out your purpose. You had a general intent to give the money for the "fostering of education" and the hospitalization of crippled children and you par ted with your property on that basis. You can't take it away from the school children and crippled children now." Are appellants in any better shape?

11. Trusts containing m uch more meticulous'Tegulations for management than Governor Henderson's have stood the tests of time. See the provisions of the will of Cecil Rhodes establishing the Rhodes Scholarships, Appendix "A", this brief.


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5 and 6.

There remain two other matters for comment. First, the guardian ad litem fee is pretermitted by appellants themselves as a ground for reversal. We therefore pretermit it, too.

As to the other matter, costs, we note that, in addition to what is said by appellants in their brief, the Court has received a brief amicus curiae from W. H. Brantley, Jr. , of Birmingham. We also note that J ustice Brown has "ignored" the question of costs in his opinion and presumably, therefore, he is in agreement with the majority that the costs should be assessed against appellants. Justice Simpson alone feels that the bringing of this suit has been of some advantage to the trust estate and that, therefore, the estate should bear the costs. He does not go so far as to assert that the trial court, in which discretion is reposed by statute and the rules of court, has abused that discretion. He does think that the litigation has been of benefit to the entire estate.

We ask him to reconsider. For ten years from J anuary, 1937, until December 18, 1946, the will of Governor Henderson was administered without any thought that the rule against perpetuities or the statute against accumulations had been violated. Everybody who had given any thought to the subject realized that Governor Henderson had builded better than he knew due to circumstances which arose after his death, that is, the coming of World War II which increased the value of his holdings and the untimely death of his wife before her expectancy, which relieved the trust estate of the largest present outlay from it. The educational authorities were looking forward to the time when the fund would be available to meet the growing needs of the public school system of the County, always genuinely in need of more funds than are ever available for permanent construction.

It was in this situation that the bill was filed, and counsel was employed, in one instance at least, on a contingent basis.


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Tr. P . 30. Under the law of Alabama, any resident thereof may

sue anyone whom he can find within the territorial limits of the State without depositing security for the costs. Payment of costs is delayed, par ties are "credited" until the end of the suit. That is to protect the freedom of litigation of which Mr. Brantley writes. But it is also the policy of Alabama, announced in innumerable cases, that those who live by the sword must die by the sword. In other words, plaintiffs enter the courts at their peril. Even when they win, unless plaintiffs, within the limit of twenty dollars, r ecover more damages than costs, they must pay the costs. Code Tit. 11, Sec. 67.

That the Henderson will did not trespass upon those provisions of law which appellan ts asserted was decided upon the first submission of the case by decree dated August 15, 1947. That decree "would have been protection to the Trustee" in line with the argument made by Mr. Brantley, but appellants did not stop there. They were not seeking to protect the Trustee nor the school children nor the crippled children. They were keen on grabbing something for themselves. They wanted the trust destroyed and the Trustee thrown out of office. The Trustee had no doubts as to his duties, he and the school communities were getting along p eaceably and well, until appellants came along.

Appellants were not content with the declaration of law made by the trial court , but have pursued the case to a second tr ial and through two appeals. They have risked very little in an effort to gain a great deal. They have cost the school and crippled children much.

This litigation has been long and strenuous. It has involved a studied effort on the part of appellants over a period of four years to create an impression in the mind of the Court, and even in the mind of the public generally that they are dependents of Governor Henderson in the process of being deprived of their birthright through the post mor tem cupidity of a rich and miserly individual , who was more interested in the glorification


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of his name than in the welfare of his dependents. It seems to us that a simple restatement of the fundamental facts may serve a useful purpose in the conclusion of this brief.

Governor Charles Henderson had no children. Tr. P . 1. He owed no obligation to his collateral kin, most , if not all of whom, were the children of his deceased brothers, who were wealthy or well-to-do men. The will of Governor Charles Henderson shows that he had a deep sense of obligation to those of h is relatives to whom he felt that he owed an obligation. He amply provided for his wife, his sister and fifteen others of his kin. After having done those things which he thought necessary for the welfare of his relatives (he had no legal obligation to do anything), Governor Henderson sought a much broader field for the ultimate use of his remaining estate. He thought of the school children of Pike County, his home place, and then of the crippled children of Pike County and the State. The bill shows he thought of the school children in 1915, he thought of them again as he came to die.

If there is any selfishness involved, then it is exhibited in those who seek to override the last wishes of a remote kinsman to devote the wealth which he alone had earned to the fine, humanitarian purposes set forth in his will. If there is any selfishness involved, it is in those who would seek to usurp to their own use and for private purposes the results of a lifetime of work by a man who owed them no obligation of any kind.

Respectfully submitted,

MARION RUSHTON JOHN H. WILKERSON A. A. CARMICHAEL

Attorneys for Appellees.

I hereby certify that a copy of this brief has been mailed postage prepaid to Oliver W. Brantley, Files Crenshaw, B. P . Crum, Alto V. Lee, III, Charles A. Ball and John W. Lapsley, Attorneys for Appellants.

MARION RUSHTON Of Counsel for Appellees


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APPENDIX "A"

The Rhodes Scholarship system was founded by the will of Cecil Rhodes probated shortly after his death on March 26, 1902. Under the will, the bulk of h is vast properties was devised in trust to seven Trustees, Lord Roseberry, Lord Grey, Lord Milner, Sir Lewis Michell, Dr. L . S. J ameson, Alfred Beit and Bourchier F. Hawksley, for the purpose of providing in perpetuity about 175 scholarships of the approximate value of 300 pounds per annum from the British Colonies, the American States and Germany.

The provisions of the will outlining the testator 's purpose and the method of select ing students are as follows:

"1. Colonial.- '! consider that the educat ion of young colonists at one of the universities in the United Kingdom is of great advan tage to them for giving breadth to their views, for their instruction in life and manners, and for instilling into their minds the advantage to the colonies as well as to the United Kingdom of the retention of the unity of the empire.'

"2. American.-'! also desire to encourage and foster an appreciation of the advantages which I implicitly believe will r esult from the union of the English-speaking people throughout the world, and to encourage in the students from the United States of North America who will benefit from the American scholarships to be established for the r eason above given at the university of Oxford under th is my will an at tachment to the country from which they have sprung, but without, I hope, withdrawing them or their sympathies from the land of their adoption or birth.'

"3. German.-'I note the German emperor has made instruction in English compulsory in German schools. I leave five yearly scholarships at Oxford of 250 pounds per annum to students of German birth, the scholar s to be


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nominated by the German emperor for the time being. Each scholarship to continue for three years, so that each year after the first three there will be fifteen scholars. The object is that an understanding between the three Great Powers will render war impossible and educational relations make the strongest tie.'

"'My desire being that the students who shall be elected to the scholarships shall not be merely bookworms, I direct that in the election of a student to a scholarship regard shall be had to (1) his literary and scholastic attain ments; (2) his fondness for and success in manly outdoor sports such as cricket, football and the like; (3) his qualities of manhood, truth, courage, devotion to duty, sympathy for and protection of the weak, kindliness, unselfishness and fellowship; and (4) his exhibition during school days of moral force of character and of instincts to lead and to take an interest in his schoolmates, for those latter attributes will be likely in after life to guide him to esteem the performance of public duties as his highest aim.' "

Cecil Rhodes authorized his Trustees to consult "the Minister having the control of education in such Colony, Province, State or Territory and to arrange a system for the selection of scholars." This system, which is subject to such changes as experience suggests, may be summarized as follows:

"Every candidate, in order to become eligible, is required to pass the Responsions examination of the university of Oxford, or some examination accepted by the university as an equivalent. In the case of communities possession universities or colleges in affiliation with Oxford, a certain standing at those universities is accepted in lieu of Responsions. Examinations are held in two years out of three in each state of the American Union, and annually in rolonies which do not have the affiliated universities or colleges referred to. German scholars are nominated by his majesty the emperor of Germany. Candidates must

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be unmarried- must be bet ween the ages of 19 and 25 (in Jamaica and Queensland, 18-25; in Newfoundland, 18-21; in Western Australia, 17-25) , and they must be, in the colonies, British subjects-in the United States and Germany, subjects of those countries. In each British colony electing scholars and in each state of the Union there is a committee of selection, composed commonly of leading educational authorities or high public officials. To these committees all candidates who have passed the qualifying tests submit their claims. The committees are entrusted with the power of selection, but are expected to exercise this power, as closely as circumstances permit, in accordance with the suggestions made by Rhodes." (See Parkin, George R.-The Rhodes Scholarship-Houghton Mifflin &

Co., Boston 1912; Encyclopedia Brittanica XXIII, P 257.)


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