Sowers v. Cyrenius.

UPSON, J. The decisions in the courts of this country and of England, in cases involving the power of courts of equity to enforce charitable trusts, and the validity of such trusts are numerous and somewhat conflicting. But they have been fully considered in several cases heretofore decided by this court, and need not now be reviewed. It is only necessary to state the conclusions at which we have arrived.

Gifts for charitable purposes have always been favored, and trusts created for such purposes are carried into effect by courts of equity upon general principles of equity jurisdiction.

In the case of Urmey's Executor v. Wooden, 1 Ohio St. 160, it was decided that the Courts of Chancery in this State, independently of the statute of charitable uses (43 Elizabeth), have jurisdiction to enforce such trusts, and the existence of that jurisdiction has not since then been questioned.

Among the charitable trusts which have been most liberally construed and most uniformly sustained have been those created for the promotion of religion and education. It is clear from the lan-. guage used by the testator in the third item of his will, that he intended his property to be used, after the death of his wife, for the promotion of religion by the preaching of the gospel of Christ as taught by the denomination known as the Disciples of Christ. The object thus stated is claimed to be vague, indefinite and uncertain. but the authorities decisively show that this claim cannot be sustained. We need only refer to the decisions of this court in the cases of Urmey's Executors v. Wooden, supra; and Miller v. Teachout, 24 Ohio St. 525. In the former case the residue of the estate was devised to "the poor and needy, fatherless, etc., of Jefferson and Madison townships," of Montgomery county. In the latter case the residue of the estate, after the death of the testator's wife, was to be appropriated and used "for the advancement and benefit of the Christian religion.' In neither of those cases was the object of the trust defined with greater certainty than in this.

It is no objection to the validity of the trust that the individuals to be benefited by it are not designated in the will, for this indefiniteness is a necessary characteristic of charitable trusts. It is only required that discretionary power to use the property for the purposes intended by the testator should be given to trustees appointed by him or by the court. In this instance that power has been plainly given by the testator to the persons named as executors of

Sowers v. Cyrenius.

the third item of the will. Although the language of the will might have been more definite, the intention is clear and the trust valid.

It is next insisted that the estate was not devised, or intended to be devised, to the trustees. It is true that the estate is not devised in express terms, but the weight of authority is in favor of the proposition that courts will by construction imply an estate in trustees although none is given them in words, in cases where they are required to do something which cannot be done without a legal estate and that the estate thus implied will be an estate sufficient for the purposes of the trust. In this case, the purposes of the trust obviously require an estate in fee, and that estate would under that rule be implied by construction in the trustees. It is unnecessary however to decide whether an estate in fee was taken by the trustees or not, for even if the legal estate descended to the plaintiff in error, it descended subject to the trust, which could still be enforced against it. This was decided in the case of Trustees of McIntyre Poor School v. Zanesville Canal and Manufacturing Co., 9 Ohio, 203; 34 Am. Dec. 436, and also in the case of Williams v. First Presbyterian Society of Cincinnati, 1 Ohio St. 478.

[Minor point omitted.]

Judgment affirmed.

NOTE BY THE REPORTER.- See Brown v. Caldwell, ante, p. 376. In Quinn v. Shields, Iowa Supreme Court, not yet reported, a testator devised and bequeathed certain property to M. for life, and further provided: "I desire, and my will is, that the principal mentioned, and so much of the interest arising therefrom as may remain in the hands of said M. unexpended, shall go to the support and management of such worthy and meritorious charitable and educational and religious institutions of the Roman Catholic faith as said M. may determine." Held, that this provision was not void for uncertainty. The court said in substance, it is competent for a testator to bestow a charity upon a person or institution to be chosen or named by a trustee or executor. In that case there is no uncertainty of the beneficiary, for the courts, when called upon to enforce the testament, will be advised of the direction of the charity by the act or declaration of the trustee or executor. Wills providing for the distribution and appropriations of charities in this manner are always upheld by the courts.

Scott v. Perlee.

SCOTT V. PERLEE.

(39 Ohio St. 63.)

Usury--lex loci.

A note made in Ohio by a citizen of Illinois, specifying no place of payment, but for money to be used in Illinois, at a rate of interest lawful in Illinois but unlawful in Ohio, is valid in Ohio.*

A

CTION on a promissory note. The opinion states the case. The plaintiff had judgment below.

Thomas Millikin and C. J. Smith, for plaintiff in error.

Alex. Buckingham and A. C. Jenkins, for defendant in error.

DOYLE, J. The findings and judgment of the court, where a case is tried without the intervention of a jury, will not be disturbed by this court, unless such findings and judgment are clearly against the weight of the evidence. In the present case, the testimony, beyond what appears upon the face of the note, consists solely of that given by the two parties, Scott and Perlee. Which of them was to be believed, was a matter properly to be determined by the court trying the case, and if the judgment can fairly be sustained upon the testimony of either, it ought not to be reversed. Landıs v. Kelly, 27 Ohio St. 571.

The court might well find from this testimony, if the plaintiff was believed, that in the summer of 1870 the plaintiff was in Fairbury, Illinois, where the defendant, Andrew J. Scott, resided, that the latter, desiring money to carry on some building enterprises in which he was engaged, in Illinois, applied to the plaintiff, who was his brother-in-law and visiting him at the time, for a loan, agreeing to pay him therefor ten per cent interest; that the plaintiff agreed to make the loan upon the terms named, upon defendant's note, with Henderson W. Scott, who lived in Ohio, as surety, and that without any further arrangement Scott wrote the note at Fairbury, at which place he dated and signed it; that it was then sent to Ohio to the surety, who signed it and delivered it to the payee, receiving the money in this State and forwarding it to the principal, *See Thornton v. Dean (19 S. C. 583), 45 Am. Rep. 796.

Scott v. Perlee.

and that the parties intended in good faith to contract with reference to the law of Illinois, as to the rate of interest to be paid for the use of the money.

The question presented for our consideration therefore is, whether such a contract, thus made, is usurious? That this contract was executed in Ohio may be conceded; although signed in Mlinois by the principal debtor and there dated, it was delivered in Ohio and was not a completed contract until delivery. The fact that the loan was negotiated for Illinois in accordance with the written terms of the note, is not insignificant, however, in determining the question of the parties to contract with reference to Illinois law. Findlay v. Hall, 12 Ohio St. 612. It is then the case of a citizen of Illinois, executing his note in Ohio, in pursuance of an arrangement previously made in Illinois, for money borrowed to be used in the latter State, with an agreement to pay interest according to her laws, not intending or attempting thereby to evade our usury laws, but in good faith. Is such a contract tainted with usury?

Since the case of Finlay v. Hall, 12 Ohio St. 610, and Kilgore v. Dempsey, 25 id. 413; s. c. 18 Am. Rep. 306, it is undoubtedly the law of this State, and indeed it is now well-established almost universally, that where a contract is entered into in one State, to be performed in another, between citizens of each, and the rate of interest is different in the two, the parties may, in good faith, stipulate for the rate of either, and thus expressly determine with reference to the law of which place that part of the contract shall be decided. Where such a contract, in express terms, provides for a rate of interest lawful in one but unlawful in the other State, the parties will be presumed to contract with reference to the laws of the State where the stipulated rate is lawful, and such presumption will prevail until overcome by proof that the stipulation was a shift to impart validity to a contract for a rate of interest, in fact usurious. Fisher v. Otis, 3 Chand. 102; Butters v. Olds, 11 Iowa, 1; Arnold v. Potter, 22 id. 198; Newman v. Kershaw, 10 Wis. 340; Horsford v. Nichols, 1 Paige, 225; Townsend v. Riley, 46 N. H. 300; Depau v. Humphreys, 20 Mart. 1; Fanning v. Consequa, 17 Johns. 511; 8 Am. Dec. 442; Pratt v. Adams, 7 Paige, 615; Chapman v. Robertson, 6 id. 627; Richards v. Globe Bank, 12 Wis. 696.

If the parties to the note in question had expressly stipulated in the note, that it was payable in Illinois, the contract to pay ten

Scott v. Perlee.

per cent interest would be perfectly valid, although the note was executed in Ohio. Is it rendered invalid by reason of the omission to make that express stipulation? It is not entirely settled, by the authorities, where this note, as a matter of interpretation, is payable, there being no place expressly stipulated; but the weight of authority and the sounder reason, we think, sustain the proposition, that a note dated and signed at the place of residence of the debtor, and containing stipulations, lawful under the laws of such place, but forbidden by the law of the residence of the creditor, or where the note was completed by delivery and no other place of payment is named, will be presumed to be payable at the former place, assuming of course that no attempted evasion of the usury law of the latter is proved. In other words, in the absence of any proof the presumption of law is that the note in question is an Illinois contract, and is valid both as to principal and interest. To overcome this presumption the actual facts may be shown. It is shown that the contract was delivered in Ohio; but taken in connection with the other facts proved, that does not overcome the presumption that it is payable in Illinois, where the debtor resides, where he dated and signed his contract, and where alone it is legal according to all of its terms. 2 Pars. Cont. 584, and cases cited; Dan. Neg. Inst., § 90; Arnold v. Potter, 22 Iowa, 198; Tillottson v. Tillotson, 34 Conn. 336; Jewell v. Wright, 30 N. Y. 264. Where such express stipulation would uphold the contract, if the same thing can fairly be inferred from what is stipulated, it will likewise be upheld.

But while we believe that this contract can be thus sustained, it is not necessary to place the decision upon that ground.. There is no reason why a citizen of Illinois, or any other State, may not come into Ohio and borrow money to be used in the State of his residence, and in good faith contract with reference to the laws of the latter State, independently of where his note is executed or where it is legally presumed to be payable. In such case the only question is one of good faith. Did he honestly contract with reference to the law of his allegiance, the law of the State or country where he lives?

In Arnold v. Potter, 22 Iowa, 194, the note was made by a citizen of Iowa, in Massachusetts, payable in New York, and the court. instructed the jury that "If defendant went to Boston and urged the loan and promised ten per cent under the laws of Iowa, and all