Rosser v. Prem

delivered the opinion of the Court.

"Put not your trust in money but put your money in trust.”

Oliver Wendell Holmes,

"The Autocrat of the Breakfast Table” (1858)

The first question in this appeal is whether the trust that Eleanor B. Wasserman sought to create in her will is a valid charitable trust. Because our answer is affirmative, we need not consider the second question — whether the doctrine of cypres, Md. Est. & Trusts Code Ann. § 14-302 (1974), would apply. Our decision requires reversal of the decree of the Circuit Court for Baltimore County (Brizendine, J.) and means that two thirds of Mrs. Wasserman’s estate will be used to publish and disseminate her book entitled, "Linda,” which concerns her only daughter who died of cancer at the age of eight in 1950. * 1

*369 I

Mrs. Wasserman died in December 1978, five years after her husband, Earl B. Wasserman, who had left her all of his estate. Her will, whose validity is not at issue, was dated October 11, 1971, 21 years after her daughter’s death. Prepared by attorney Thomas J. Grogan, Jr., it bequeathed one third of her estate to her husband, * 2 specific items to relatives, 3 and the rest, residue and remainder to three named trustees 4 who were directed to:

''[A]pply the net income therefrom and whatever portion of the corpus of this trust estate which may *370 be required to preserve and protect the manuscript and illustrations and copyrights of my book entitled Linda’, and in their discretion insofar as said Trustees find this procedure practicable to have said book widely published in expanded and revised form, if this should be helpful, in as many editions as may be deemed necessary and to have the material used in whatever form and by whatever method it appears to them to be most feasible.

"It is my wish and desire that the entire corpus of this trust estate, together with any accumulated income therefrom bq used by my said Trustees to carry out the above trust with respect to my said book entitled 'Linda’ and the second edition thereof, which I am about to publish.

"If I shall die before I publish the second edition, I authorize my Executors to employ some Christian Writers to complete the work.” (Emphasis added.)

Following his appointment as personal representative, Mr. Grogan, now deceased, sought a declaratory judgment, pursuant to Md. Cts. & Jud. Proc. Code Ann. §§ 3-406 and 3-408 (1980 Repl. Vol.) and Md. Est. & Trusts Code Ann. § 14-301 (a) (1974), requesting the court to instruct him as to whether the will created a valid trust. Thomas E. Rosser, trustee and appellant here, filed an answer, averring that the trust was valid. At a hearing before a master on August 11,1980, "Linda,” a bound, copyrighted, and illustrated volume of 102 pages, was admitted into evidence, along with letters from two experts, Carol Abromaitis, an associate professor of English at Loyola College, Baltimore, and Eleanor Merryman Roszel, an author’s representative. The former testified that the book "Linda” was "without aesthetic merit,” being structurally flawed by "a mishandling of point of view” and stylistically flawed by "grammatical errors.” Ms. Roszel passed on the book’s "publishability,” concluding that "Linda” had "no ready-made audience and therefore no marketability.” Mr. Grogan, the author of the will, testified that had he seen a *371 copy of the book before drawing up the will, he would have tried to discourage Mrs. Wasserman. His assessment of "Linda” was: "ungodly bad.” 5

The master concluded that Mrs. Wasserman’s will did not create a valid trust, stating in his memorandum opinion: "The book 'Linda’ sets forth no doctrine. It advocates nothing. It promotes no matter of special interest to the community. It certainly is not a literary gem.”

Appellant excepted, but before the circuit court hearing, Mr. Grogan died. He was replaced by Robert C. Prem, appellee here. On October 8, 1981, the circuit court determined that the trust was invalid on two grounds: first, as a private trust, it lacked ascertainable beneficiaries; 6 second, *372 as a charitable trust, it lacked the necessary elements. 7 As a result, the net residuary estate was ordered distributed to the heirs at law. This appeal followed.

II

Charitable trusts in Maryland have attracted little appellate attention in recent years although the legacy of cases prior to the adoption of § 14-301 et seq. in 1974 is ample. 8 In 1888, the legislature enacted a statute that no bequest for charitable uses would be void for uncertainty of *373 beneficiaries, provided a corporation existed to take the same. See Md. Ann. Code Art. 93, § 357 (1957). The statute was amended in 1908 to remove the bar of perpetuities from charitable trusts, but not until 1931 were the principles of the statute of 43 Elizabeth Ch. 4 (1601) formally adopted in this State. Code, supra, Art. 16, § 268A (1935 Supp.). See Howard, C., "Charitable Trusts in Maryland,” 1 Md.L.Rev. 105 (1937).

As the Court of Appeals noted in Second National Bank v. Second National Bank, 171 Md. 547, 556-7, 190 A. 215, 219 (1937), this statute, which is the predecessor of § 14-301, did not mark the beginning of charitable trusts in Maryland, for courts of equity had exercised jurisdiction over charitable trusts from antiquity. Many, of course, had failed for uncertainty or perpetuities, see cases collected in Howard, supra, n.36 at 117. These trusts would be valid and enforceable under Art. 16, § 268A. The court pointed out that courts in states with the statute have upheld as charities many objects of benevolence which the statute neither mentions nor implies. Similarly in this State, a trust to establish a *374 home for "unfortunate girls” was held to be charitable, Second National, supra, and more recently, Register of Wills v. Cook, 241 Md. 264, 216 A.2d 542 (1966), held that a trust to help further the passage of the Equal Rights Amendment and assist women suffering from the effects of sexual discrimination in the laws of Maryland and the United States was essentially charitable in nature, "[wjhatever may be the views of individuals, laymen or judges. . ..” Id. at 278. Because we have found no Maryland case concerning a charitable trust to publish a book, we begin our analysis on common ground with the appellant and appellee concerning the definition:

"A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.”

Restatement (Second) of Trusts § 348 at 210 (1959). Both sides also agree that § 368 of the Restatement sets forth the permitted charitable purposes:

(a) the relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

(d) the promotion of health;

(e) governmental or municipal purposes;

(f) other purposes the accomplishment of which is beneficial to the community.

Restatement, supra, § 368 at 246. These purposes, derived from the Statute of Elizabeth, supra, were broadened in § 14-301 (b) to include "purposes within either the spirit or letter” of the venerable statute. 9 It is likewise undisputed *375 that a charitable trust can be created without a definite or definitely ascertainable beneficiary designated, Restatement, supra, § 364 at 243, and is not invalid although continuing for an indefinite or unlimited period, id., § 365 at 244; § 14-301 (c).

Appellant argues that the trust created by Mrs. Wasserman qualifies as a charitable trust on two grounds: first, it would advance education through "the dissemination of knowledge or of beliefs by the publication of books and pamphlets . . .,” Restatement, supra, comment a to § 370 at 251; second, it would advance religion by disseminating "religious beliefs or doctrines; . ..” id., comment a to § 371 at 254.

Appellee states that "publication of the book 'Linda’ falls short of a charitable purpose” because it is of little or no value to the community in advancing either education or religion. The test, according to appellee, is stated by Professor Bogert: "[I]f the court comes to the conclusion that *376 it would be irrational to regard the trust as bringing about any public benefits, but rather that the trust would be useless to society, the court will hold the trust noncharitable... Bogert, Trusts and Trustees § 368 at 58 (2d ed. rev. 1977). Appellee relies on the Restatement’s no-nonsense comment m to § 374 that "a trust to publish and distribute the writings of the testator is not enforceable if his writings are of no value.” Restatement, supra, at 262.

Professor Scott echoes this flat prohibition: "A trust to publish worthless writings is not valid, either as a charitable trust or as a private trust.” II Scott on Trusts § 124 at 963-4 (3d. ed. 1967), citing, Fidelity Title & Trust Co. v. Clyde, 121 A.2d 625 (Conn. 1956). Professor Bogert, whom appellee quotes extensively, is somewhat scathing in his view of "educational trusts [that] seek to propagate eccentric ideas,” producing no substantial advantages to society, Bogert, supra, § 375 at 134, and whimsical or irrational trusts, made out of mere sentiment, that have no practical effect except to satisfy the whim of the testator and waste the assets of the estate. Id., § 379 at 204. 10

*377 Appellee’s position seeks to put this Court in the unaccustomed role of literary critic, but before we review the lower court’s decision that the book "Linda” "wasn’t much good” and therefore failed as a charitable trust, * 11 we will consider whether the other required elements of a charitable trust, as set forth in the comments to § 348 of the Restatement at 210-11, are present. These elements are:

a. fiduciary relationship

*378 b. duties of trustees

c. trust property

d. manifestation of intention

e. charitable purpose

The first three elements give us little pause. The fiduciary relationship in a charitable trust is between the trustee and unknown beneficiaries who will come forward upon operation of the trust. The trustee of a charitable trust is subject to equitable duties as defined in §§ 169-185 of the Restatement. In this case, these duties might include hiring an editor, publisher, and distributor for Mrs. Wasserman’s book. The trust property — two thirds of the estate — is obviously a proper subject of the trust, as is the object of the trust — the book.

The fourth element requires some analysis. Mrs. Wasserman’s intention to create a trust is evident in the will. See Waesche v. Rizzuto, 224 Md. 573, 583, 168 A.2d 871, 875 (1961). Whether she meant to create a charitable trust is not immediately apparent from the language of the will itself, which mentions neither the word "charity” nor any of its synonyms or variations. However, that omission is not dispositive. See Second National Bank, supra, 171 Md. 550-1, 190 A. at 216-7; cf. Woman’s Foreign Missionary Society v. Mitchell, 93 Md. 199, 48 A. 737 (1901) (bequest to educate six girls in India as Bible readers held valid gift with a condition, despite words "in trust” used in will). Section 358 of the Restatement tells us that the intention to create a charitable trust may be ascertained:

(a) from the will itself; or

(b) from an existing instrument properly incorporated in the will by reference; or

(c) from facts which have significance apart from their effect upon the disposition of the property devised or bequeathed by the will.

Restatement, supra, § 358 at 223-4.

The published book "Linda,” the object of the trust, con *379 tains an introduction, see n.l, supra, that manifests Mrs. Wasserman’s intention "to help others believe as I had been shown how to believe, particularly parents.” The preface, written by James S. Cox, then Dean of St. Andrew’s Cathedral in Honolulu, Hawaii, expands upon this intent and alludes to the intended beneficiaries:

"When the author first came to me some time after the death of her daughter, I knew her to be struggling with a grief too great to bear without some effort on her part to justify the bitter pain of bereavement — to find some working answer to the enigma of human existence. Her quest led her over a curious path but through the same valley of decision and faith countless others have encountered and will encounter. It is to help the latter that she was led to write her book.”

Manifestation of Mrs. Wasserman’s intent is thus externally expressed — she wanted to publish and disseminate the book "Linda” and two others, then and still not completed, to offer solace and spiritual guidance to parents plunged into the unimaginable mental anguish produced by the loss of a young child. 12

Appellees do not contend that any of the first four elements are lacking: they simply assert that there is no charitable purpose 13 because "Linda” has no literary value *380 and its dissemination will produce no public benefit. Therefore, they contend, the trust is invalid and unenforceable. The testimony before the master amply demonstrates the book’s shortcomings, appellees point out, citing authority dealing with other writings deemed "worthless.”

Thus, in Wilber v. Asbury Park National Bank & Trust Co., 59 A.2d 570 (1948), affd sub nom, Wilber v. Owens, 65 A.2d 843 (N.J. 1949), the testator directed that $15,000 be spent to type, edit, and distribute his manuscript entitled, "Random Scientific Notes Seeking the Essentials in Place and Space.” The lower court refused to do so, finding the writings "irrational, unintelligible, and of no scientific or other value,” and their publication "a waste of money.” Id. at 578. The court did apply the cy pres doctrine, however, because the will showed general charitable intent, and the judgment was affirmed.

We distinguish the Wilber case on three grounds. First, the will had no friends — all counsel-agreed that the express purpose of the will was "impossible of performance.” Id. at 579. That is not so in this case. Second, the testator, according to the trial judge, was "eccentric, egotistical, pompous, and had an exaggerated idea of his own importance”; he was "touched with megalomania,” and "evidently obsessed with the idea that he was under an obligation and duty to do something magnificent for mankind.” Id. at 584. We have no such testator here. Third, several of the institutions named as beneficiaries refused to accept the gift on the testator’s terms that his "Notes” be published. That is not the instant case.

In affirming the trial court’s application of the cy pres doctrine, the Supreme Court of New Jersey dealt more gently with the quality of the testator’s work, and its observations are apposite:

"He sought to add 'a small bit to the sum-total of desirable human knowledge, for the use and benefit of mankind.’ This we find in the 'Introduction’ to the first volume of his Notes. True, his Notes contributed nothing to the sum of human knowl *381 edge; and their development would not add to wisdom. Indeed, they have been termed 'irrational and incoherent.’ Dr. Scoon said a part was understandable and a part not. Yet to the testator the test was real and vital and entirely reasonable in keeping with his own meager understanding of the subject.... He conceived that his reflections and conclusions would provide the basis and the impetus for philosophic research that would in the end be socially constructive and otherwise serve the common good; but the charitable intent does not depend upon the scientifíc validity of his views or the depth of his understanding. We are not concerned with his philosophic or sociologic orthodoxy or rationality. Whatever the utility of his contribution, his undoubted aim was the use of his Notes as the beginning of an understanding that would in scientific hands redound to the advantage of mankind. That was his avowed purpose.” 65 A.2d at 846. (Emphasis added.)

In support of his view that the book "Linda” is worthless, appellee refers us to a case cited by Professor Scott, IV Law of Trusts, supra, n.5 at 2872. Fidelity Title & Trust Co. v. Clyde, 121 A.2d 625 (Conn. 1956) held that a trust to publish a deceased attorney’s writings was invalid as contrary to public policy. Id. at 629. A sampling of the titles of the pamphlets proposed to be published supports the court’s reaction of repugnance to this so-called "educational trust for charitable purposes. 14 Id. While the case is completely distinguishable, we agree with the court’s statement that

*382 "where the purpose for which the trust was created constitutes a valid charitable use, the educational value of the books or pamphlets to be distributed is ordinarily of no concern to the court, nor is the literary merit of the material a proper subject of judicial inquiry.”

Id.

Appellee also refers us to 12 ALR2d, Annot. Charitable Trust — Validity § 2 at 861 (1950), but the cases found there tend to support the theory expressed in § 2, which is at variance with appellee’s position:

"Broadly speaking, the publication of writings is regarded as a furtherance of education and, therefore, a valid charitable object. Excluding advocacy of immorality or crime, no inquiry is made into the rightness or wrongness of the views expressed . . . [I]t is required that the writer be rational. The writings may espouse an unpopular doctrine; ... In modern times, the author may take any view he pleases respecting the forms of religion.”

The case of In re Hamilton-Grey, 38 New So.W.St. 262 (1938), discussed in the annotation at 862, is instructive. The testatrix left all her property in trust to disseminate her three published books on the life and poetry of Henry Kendall, the "Australian Wordsworth.” Expert and lay witnesses testified that her books were worthless as literary criticism and had little biographical value. Nonetheless, the court refused to hold publication and distribution of the books noncharitable. "Judicial inspection of the books was confined to a search for contravention of law and morals, and, they being cleared on this score, their object of *383 awakening interest in the poet was educational.” Annotation, supra, at 863.

The one case supportive of appellee’s position, State exr el. Emmert v. Union Trust Co., 86 N.E.2d 450 (Ind. 1949), is disparaged by the author of the annotation as an unfortunate result that "flows upstream in the current of authority.” Annotation, supra, at 864.

The court held that a will directing the executors to publish and distribute the diaries of the testator’s grandfather, admittedly of educational value, was not a valid charitable trust because the will evidenced no charitable intent or purpose. Chief Justice Gilkison’s stinging dissent noted that: "A gift to the use of the general public is always construed to be a public charitable trust.” Emmert, supra, 86 N.E.2d at 455.

The one caveat espoused by both Scott and Bogert is that a charitable trust must provide some societal benefit. Bogert, supra, § 361 at 3; Scott, supra, § 374.7 at 2920; see Restatement, supra, comment m to § 374 at 261.

"The question is not whether the trust is in harmony with the prevailing public views as to what purposes are of advantage to society. The court sanctions the advancement of many minority causes, for example, aid to religious sects which have few followers and trusts to promote governmental changes which are not popular.

The court should not hold the trust to be noncharitable merely because it does not approve of the objectives of the settlor and does not consider that his trust will bring about social benefíts. If, notwithstanding its disapproval, the court finds that the settlor and rational men in general might reasonably believe that public advantages would accrue, it may hold the trust to be charitable, for example, in the case of a trust to promote vegetarianism.” Bogert, supra, § 368 at 56-7. (Emphasis added.) (Footnotes omitted.)

*384 An excellent example of a "minority cause” is found in In re Estate of Kidd, 467 P.2d 770 (Ariz.App. 1970), which involved a holographic will that left the balance of the estate to fund "research or some scientific proof of a soul of the human body which leaves at death. I think in time their [sic] can be a Photograph of soul leaving the human at death.” Id. at 771. The case attracted much publicity for the seemingly impecunious gentleman had left $174,000 in stocks and bonds. The court did not hesitate to find a charitable trust. Id. at 774. See also the early case of Thornton v. Howe, 31 Beaver 14, 54 Eng. Reprint 1042 (1862), discussed in annotation, supra, at 869.

A charitable purpose may be found in "almost anything that tends to promote the well-doing and well-being of social man,” Ould v. Washington Hospital for Foundlings, 95 U.S. 303, 311 (1887). Well-being consists not only of physical health and surroundings but also of mental • happiness. While the book "Linda” received a failing grade from the English professor and a rejection notice from the publishing agent, we need not review it as might a critic for The New York Times Book Review. Mrs. Wasserman’s book details her search for mental solace and spiritual peace in a rational, if not editorially elegant, manner.

At oral argument, appellant stated that the book "Linda” was not silly or frivolous. From our reading, we cannot disagree. The appropriate test is not whether the book is marketable — the trust provides for its distribution, so it need not be sold but may be given away. Nor does the trust’s validity depend on the book’s literary style and grammatical accuracy. The trust provides for expansion and revision "as may be deemed necessary.” Mrs. Wasserman made no pretense of being a professional author. 15

*385 Parents facing the mental, emotional and spiritual crises that follow the death of a child may benefit from a reading of "Linda,” or a professionally edited and revised version of it, for which the will provides. As the Rev. Mr. Cox stated in the Preface:

"Some will find their chief interest of the book in the thorough knowledge of Old Testament religion revealed by the author, and how she found its fulfillment, and hers, in the Christian Church. Others will be moved by the personal experience of the author and, perhaps, find hope in their own situation. At least they will feel that a deep experience shared by them has been put into simple and expressive words, and be glad.”

The named trustee, appellant here, stood ready to carry out his equitable duties — to have the book "widely published in expanded and revised form,” insofar as this procedure was practicable. The trust confers broad discretion upon the trustee to employ "Christian Writers” to complete the second edition and "to have the material used in whatever form and by whatever method . .. appears ... to be most feasible.” Cf. Rabinowitz v. Wollman, 174 Md. 6, 7, 197 A. 566, 567 (1938) (trustee given discretion to choose charitable Hebrew institutions to receive bequest).

Mrs. Wasserman’s intent is clear — to help bereaved parents by providing her "answer to the enigma of human *386 existence,” through the story of her daughter and her own spiritual passage from Judaism to Christianity. This Court will not thwart her intent.

In light of the principles of law, as expressed in our statute, the decided cases, the Restatement, and the treatises,’ we find that the trust created by Mrs. Wasserman’s will is charitable and capable of being carried out by the trustee.

Judgment reversed; case remanded for the issuance of a declaratory judgment conformably with this opinion; appellee to pay the costs.