(252 S.W.) On submission, the chancellor below sus- testatrix provided, while in the above-quoted tained a demurrer to and dismissed the cross-provision to the codicil she is in addition petition, and counterclaim of the heirs at law, providing for a state of case where a desigand on the petition and answer of the North- nated trustee might fail to maintain the ern Presbyterian Church adjudged that in- institution after having once accepted it, and stitution entitled to take the property in con- it is reasonably clear, from this modification troversy and operate the same as an orphans' in the codicil that she had in mind, that each home under the provisions of Mrs. Grundy's of the three designated trustees should, in will, and directed the surviving executor to the order named in her will, have the opporconvey the same to that church, and from tunity to accept the trust and operate the that judgment the heirs at law and the ex- orphanage under the terms of her will, if ecutor each prosecute an appeal, and on the any prior trustee had accepted and failed to executor's appeal he is enjoined by his attor- maintain the same. neys as appellants because of an insufficient allowance, as alleged, to them by the lower court. [1] It is reasonably clear from the provisions of the original will that the testatrix did not, at the time of its execution, contemplate or have in mind that either of the three designated trustees or agencies, who might accept the devise, would ever undertake to establish and maintain the orphanage and thereafter discontinue it, and that, when the Southern Presbyterian Church did, after a period of 16 years, decline to further operate the same under the terms of the will, a situation arose which was not in any way provided for in the original instrument. But between the date of the original will and the execution of the codicil of the 21st of October, 1902, evidently such possibility came into the mind of the testatrix, for she says: "Further it is my will and I here now devise the property named and set out in the eighth, ninth and tenth clauses of this will in the event all the institutions and organizations named therein fail to take, accept, create and establish the orphans' home, the charity named in said clause, and to maintain the same," then she devises the same to her executors for other purposes. It is reasonably clear from this last quotation in that codicil that the testatrix finally conceived the possibility of one of her designated trustees qualifying and undertaking to carry out the trust and failing "to maintain same," and, "in the event all" of them either refused or failed to maintain the charity after undertaking to do so, then and in that event only was the devise to the executors for other purposes to become effective. The quoted language from that codicil was evidently intended to modify the provision in section 10 of the original will that "If said Synod of the Presbyterian Church, Southern branch, do not accept said trust and property within twelve months after my death then said other synod of the other branch of said church may in sixty days after the expiration of said twelve months accept it, and in the event it fails so to accept it then it goes to the said Grand Lodge of Masons as aforesaid." It will be observed in this quoted provision of the original instrument it was only the acceptance in the first place for which the It appears to us that a fair interpretation of the language of the codicil is that the testatrix therein provided for the very contingency which has arisen, and that therefore the chancellor below properly permitted the Northern Presbyterian Church, the second choice of the testatrix, to qualify as trustee and operate the orphanage under the terms of the will. This interpretation of the instrument obviates the necessity of discussing the application of the cy pres doctrine, and makes it unnecessary to determine whether the devise over to the executors, in the event all of the designated trustees either failed to accept the trusteeship or maintain the institution, is or is not void under our statute. [2] But the heirs at law challenge the right of the executor to maintain this action, upon the ground that, in an action brought shortly after the death of Mrs. Grundy, the accounts of the executors had been fully settled, the property had been turned over to the Southern Presbyterian Church, the whole matter settled, and the court by its judgment discharged the executors. But, manifestly, the contention is erroneous. Under the new conditions which arose when the Southern Presbyterian Church further declined to maintain or operate the orphanage, new duties were then imposed upon the executor. A situation had arisen which had not been fore seen either by the court, the executors, or any of the parties. This valuable trust property, which had been accepted by the Southern Presbyterian Church under the terms of the will, was returned to the executors by that church, which declined to further retain it and maintain the orphanage. Under the will the legal title to the property was in the executor, and while its possession and control had been turned over to the Southern Church by the judgment of the court, the legal title to the property remained in the executor. The discharge by the court in 1904 only operated as a discharge up to that time, and could not have relieved the executor from the duties imposed upon him under the will, for, if all the designated trustees failed to accept, and failed to maintain the orphanage, then under one of the codicils the executors were authorized to sell any or all of the real estate. [3] But it is contended by the executor and interesting questions of law very much that, inasmuch as the first codicil, imposing out of the ordinary; and, while the fees are upon the devisee accepting the trust the duty allowed and are to be paid out of the trust of entering "into terms with my executors fund devoted to the maintenance of a charitabinding and obligating said devisee to estab- ble purpose, and should, therefore, in all lish, carry out and maintain said charity and events, be reasonable, still we have reached home in perpetuity upon terms satisfactory the conclusion that the allowance to the atto my executors," the executors had the torneys in this case, considering the amount right to impose upon the Northern Church, involved, the intricate questions presented in accepting the trust, the condition that it and argued, both in the lower court and preshould neither operate nor maintain any sented by brief in this court, of $750 to the other similar institution in the state of Ken- executor's attorneys is too small, and that it tucky. should have been at least $1,250. The judgment is affirmed on the appeal of the heirs at law, and, for the single reason indicated, is reversed upon the appeal of the executor and his attorneys. It could not have been within the mind of the testatrix to lodge unrestrained power in her executors to impose such unreasonable terms as might defeat the charity for which she provided. Her central thought, the dominant idea throughout her will, was to have this institution established and maintained for the benefit of the designated charitable class, and to say that she intended by that last above-quoted expression to place it within the power of her executors to defeat her purposes by imposing upon the trustee unreasonable conditions which could not be act. cepted, would be giving it such an interpretation as she evidently did not have in mind. The chancellor properly declined to insert any such condition in the acceptance of the Northern Church. The trust property is still virtually intact, the class of beneficiaries is still in existence, the plain purpose of the testatrix may be readily determined, and we are aware of no reason why this orphanage should not continue to be operated and maintained by the trustee second in choice of the testatrix, after the first choice has discontinued its operation and declines further to maintain it. There was no reversionary clause whatever in the will, and it follows from what we have said that the lower court properly dismissed the cross-petition and counterclaim of the heirs at law, and properly permitted the Northern Church to undertake to operate and maintain the charity. COMMONWEALTH ex rel. COMMON. WEALTH ATTY. v. BROWN. (Court of Appeals of Kentucky. June 15, 1923.) Intoxicating liquors 246-Property not subject to forfeiture unless offense has been committed therein. Under Ky. St. 1922, § 2554a-8, providing that any person renting or letting any building to another or others for the purpose of violating the act shall be considered guilty of a nuisance, and the property so used shall be forfeited and sold as if the unlawful act had been committed by him in person, the property cannot be forfeited, though it has been let for the purpose of violating the act, unless it has actually been so used. 2. Forfeitures 5-Not decreed in absence of showing of every essential element. A forfeiture will not be decreed in the absence of a showing of every element essential to the application of the remedy. 3. Intoxicating liquors 250-Petition to for. feit premises for liquor nuisance held insufficient. A petition alleging that defendant rented a house to be used for the storage and sale and a place at which was sold intoxicating liquors did not allege that liquors actually were stored or sold therein in violation of the law, and therefore was insufficient to authorize a decree Appeal from Circuit Court, Montgomery County. On the appeal of the executor and his attorneys because of the failure of the lower court to allow them sufficient fees in this action, little need be said. On a motion for allowances, the court allowed Hobson & Hob-forfeiting the property. son as attorneys a fee of $750 and the surviving executor for his services was awarded a fee of $300, and it is earnestly insisted that these attorneys' fees are wholly inadequate, Equitable action by the Commonwealth, in view of the amount in controversy, the on relation of the Commonwealth Attorney, labor involved in this litigation, and the against Charles M. Brown, to forfeit a house From a responsibility resting upon them. There were and lot as a common nuisance. a number of affidavits introduced in the trial judgment sustaining a demurrer to the peticourt fixing the fees of the attorneys for the tion, the Commonwealth appeals. Affirmed. executor at from $3,000 to $5,000. Chas. I. Dawson, Atty. Gen., Martin T. Kel[4] The evidence shows the landed estately, Asst. Atty. Gen., and W. C. Hamilton and in controversy is worth at least $60,000, and W. A. Samuels, both of Mt. Sterling, for apthe record presents a number of intricate pellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S.W.) W. B. White, of Mt. Sterling, for appellee. as a storage place, and a place for safe MOORMAN, J. The commonwealth of Kentucky, on relation of the commonwealth attorney of the Twenty-First Judicial district and the county attorney from Montgomery county, filed this equitable action under section 2554a9 of Kentucky Statutes to forfeit a house and lot on South Queen street, in the city of Mt. Sterling, on the ground that it had been knowingly and intentionally let by the owner for the purpose of violating the provisions of section 2554a1 et seq. of Kentucky Statutes, and was a common nuisance within the meaning of section 2554a9 of the Statutes. A demurrer to the petition was sustained, resulting in this appeal by the commonwealth. The averments. of the petition as simplified are that Charles M. Brown, within one year next before the filing of this action, willfully, unlawfully, knowingly, and whilst the owner of the property described did rent, lease, let, hire, lend, and otherwise use, cause to be used, and suffer and permit the premises and the house to be used as a storage place, and a place for safekeeping, and a place for the sale, and a place at which was sold spirituous, vinous, malt, and other intoxicating liquors. Considering these averments in the light of the statutory right to maintain an action of this kind, we note that section 2554a8 of the Statutes, from which the authority is drawn, provides that: "Any person, firm or corporation knowingly or intentionally renting, hiring, or letting or lending any house, building * to another or others, for the purpose of violating any provision of this act, shall be considered guilty of a nuisance and of a violation of this act, and the property so used shall be forfeited and sold as if the unlawful act had been committed by him or them in person." keeping, and a place for the sale of spirituous, vinous, malt, or other intoxicating liquors, and a place at which such liquors were sold, but there is no allegation of fact showing that the liquors were stored, kept, or sold in violation of the law. It is an offense under the statute knowingly or intentionally to rent or hire a house to be used for the purpose of violating any provision of the prohibition law, but before the property can be forfeited it must be alleged, not only that the property was let for the purpose of violating the law, but also that it was "so used," i. e., used in violation of some designated provision of the act by which a described offense thereunder was committed. The petition in question does not contain averments as to the commission of an offense or its equivalent, and is therefore de murrable. In view of this conclusion, it is not necessary to pass on the constitutional questions raised. The judgment is affirmed. GOODE v. COMMONWEALTH. (Court of Appeals of Kentucky. June 15, 1923.) 1. Searches and seizures 3 "Probable cause" must warrant cautious person in believing offense has been committed. Under Const. § 10, requiring an affidavit for a search warrant to show probable cause, the term "probable cause," as has been defined in cases of malicious prosecution, is that which affords a reasonable ground of suspicion, supported by circumstances sufficiently strong within themselves to warrant a cautious person in a belief that accused is guilty of the offense of which he is charged, and credible information received from others might well be enough to induce such action. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Probable Cause.] 2. Searches and seizures 3-Affidavits for search warrant made on information and belief without stating sources is insufficient. An affidavit for a search warrant is insuffi [1-3] It will be seen from the language just quoted that only property that has been let for the purpose of violating some provision of the act, and has actually been "so used," is subject to forfeiture in a proceeding like this. And in this connection it should be observed that it is an established rule that a forfeiture will not be decreed in the absence of a showing of every element essential to the application of the remedy. Hence it is apparent that it was necessary cient, if made on information and belief withfor the commonwealth, in its petition seek-out stating the sources of the information or ing a forfeiture of the property in question, the facts on which the belief of the affiant is to allege facts bringing the cause within the letter of the statute, among which is that the property was used in violation of some provision of the act. The petition contains no allegation of fact showing that the properThe existence of probable cause sufficient ty was or had been used in violation of the to authorize the issuance of a search warrant act. It alleges that the owner willfully, un is a question for the court and not for the aclawfully, and knowingly rented the property cused to determine from the facts. based. 3. Searches and seizures 3-Probable cause is question for the court and not for the ac cuser. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Searches and seizures 3-Affiant Is not required to state facts within his personal knowledge. To authorize the issuance of a search warrant it is not necessary that the affiant state facts within his personal knowledge, to which he would be permitted to testify at the trial of the person accused, but only facts and circumstances which will enable the officer issuing the warrant to determine whether there is probable cause. 248-Affidavit based ky is kept unlawfully on the premises, residence, and outbuildings and place occupied by Walter Gray and Chas. Henry Goode in the town of Glasgow, Ky." It then definitely describes the premises, and says: 5. Intoxicating liquors on information from named person held suff-premises as described above and that he (the cient. An affidavit for a search warrant stating that a named individual had told affiant, within a short time before the affidavit was made, that he had seen whisky in bottles, jars, jugs, and kegs in the house in question on the day on which the affidavit was made, stated sufficient facts to warrant the judge in finding probable cause, even though the affiant would not be competent to testify to those facts at a trial. 6. Searches and seizures 3-Affidavit containing statements which would sustain prosecution of assumed maker is sufficient. The usual test of the sufficiency of an affidavit to authorize a search warrant is whether it contains statements which would authorize the prosecution of the affiant, if any material statement therein is shown to be false, and, since a provable charge could be based on an affidavit falsely stating that a designated person had made a specific statement, a search warrant may be issued on that affidavit, though it could not be on an affidavit merely stating that the affiant had information and belief. 7. Searches and seizures 3-Court can consider character of affiant and his informant deciding probable cause. In deciding whether an affidavit, stating that affiant had been informed by a designated individual that liquor was unlawfully possessed, showed probable cause for the issuance of a search warrant, it is proper for the court to consider, if he knows, the character of the person making the affidavit, as well as the character of the person from whom the information was obtained. MOORMAN, J. The ground alleged for a reversal of this judgment is the admission of testimony procured under a search warrant that is said to be illegal because of the affidavit on which it was issued. The affidavit states: "This affiant states that he bases his opinion and belief upon the following facts, to wit: That H. Mansfield came to him not more than an hour ago from the time this affidavit is written, and told this affiant that he visited said person giving this information) the said H. fruit jars, jugs and kegs on a table in said Mansfield, says he saw whisky in bottles and house occupied by said Grady and Goode, and that he saw some about 8 o'clock a. m. on the day this affidavit was written." On this affidavit W. E. Jones, judge of the police court of Glasgow, issued the search warrant in question. It is contended by ap pellant that the affidavit is insufficient in that it fails to show the "probable cause, supported by oath or affirmation," required by section 10 of our Constitution. [1] Probable cause, in cases of malicious prosecution, has been frequently defined by the courts as that which affords a reasonable ground of suspicion supported by circumstances sufficiently strong within themselves to warrant a cautious person in the belief that the person accused is guilty of the offense of which he is charged. And it has been held that while mere conjectures and. suspicions will not warrant a prosecution, credible information received from others might well be enough to induce such action, although proof that the information came from an unreliable source would be important in showing that the information was such that a reasonable man would not act on it. 18 R. C. L. p. 36. [2] The weight of authority is that an affidavit for a search warrant is insufficient if made on information and belief, though the opposite conclusion has also been reached. 24 R. C. L. 708. This court has adopted the rule of more general application. In Cooley and Crawford v. Commonwealth, 195 Ky. 706, 243 S. W. 913, it was held that an affidavit that stated. "there is probable cause and reasonable grounds for believing that at the building and premises intoxicating liquors are being sold," etc., was out that the affidavit did not "state a fact or not sufficient. In so holding it was pointed circumstance on which one might rely for sonable belief that the appellants were guilty probable cause or which would support a reaof any public offense." And, elaborating the point, it was said: "The statement of any facts or circumstances in an affidavit, which would be ordinarily calculated to induce in the mind of a reasonable "That there are reasonable grounds to be- person the belief that the accused is guilty of a lieve, and he (affiant) does believe, that whis-public offense charged against him, will suf For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S. W.) fice to warrant the officer in issuing the search warrant because it affords probable cause." In Price v. Commonwealth, 195 Ky. 711, 243 S. W. 927, decided the same day as the case just referred to, and involving a similar affidavit, it was said, "It has been uniformly held that the existence of probable causé is a question for the court, and cannot be delegated to the accuser." In that opinion the court referred to the fact that the affidavit merely asserted that the state's attorney was informed and believed that the facts existed, and "does not give the name of the person furnishing the information; makes no statement as to where or how the information and belief was obtained, or on what information his belief was founded, or whether it was such information as would inspire belief in the mind of a less credulous person." And, reiterating that the affiants did "not state the character or source of the information or the circumstances under which it was obtained," it was held that the affidavit was not sufficient. In the later case of Mattingly v. Commonwealth, 197 Ky. 583, 247 S. W. 938, in which the affidavits contained statements of affiants' belief based upon "reasonable grounds," reference was made to the fact that none of the reasonable grounds was stated, and, if they existed, "appear only to the affiant and not to the court or officer whose duty it is to issue the warrant." Following a reference to the term "probable cause" as used in the Constitution, it was said: "The courts everywhere and without exception, construe that and similar language in the respective Constitutions, to mean that the probable cause must appear and be possessed by the officer who issues the warrant and not necessarily by the affiant who makes the affidavit, and that it shall be made to appear to the officer issuing the warrant only upon 'oath or affirmation."" [3, 4] It will be seen from these decisions, and from the general rule announced in Price v. Commonwealth, supra, that the existence of probable cause is a question for the court and cannot be delegated to the accuser. Likewise the affiant's statement that he is informed and there is probable cause for believing that an offense has been committed is not sufficient, but he must, as decided in the cases referred to, state facts or circumstances on which his belief is based, or, as indicated in the Price Case, give the name of the person furnishing the information, and where and how it was obtained, or on what information his belief is founded, so that the officer that is called on to issue the warrant may determine whether probable cause exists for issuing it. This does not mean, as we construe the law, that the affiant must state facts within his personal knowledge to which he would be permitted to testify at the trial of the person accused, but only facts and circumstances which will enable the officer issuing the warrant to determine whether there is probable cause for believing that an offense has been committed. [5] The affidavit in this case contains a statement of the ground of the affiant's be lief, and gives the name of the person furnishing the information; also the circumstances under which he obtained it, as well as those pertaining to the disclosures made to the affiant. Of course the statements made to the maker of the affidavit would not be admissible in evidence to prove the charge, but, nevertheless, the affidavit contains statements of fact as to a conversation and the information imparted in that conversation, and the officer issuing the warrant had the right to consider those statements in determining whether there existed probable cause for issuing the warrant. [6, 7] The usual test of the sufficiency of an affidavit is whether it is so drawn that a prosecution could be maintained thereon if any material allegation contained therein is false. No sustainable charge could be based on an affidavit falsely alleging information and belief, but a provable charge could be based on an affidavit falsely stating that a conversation occurred with a designated person, in which that person made specific statements. Hence there is good reason for refusing the warrant in the one instance and issuing it on the other, for in the first case no one could be held responsible for any injustice that might result from the search, whereas in the second case the responsibility would be fixed. With this distinction in view, and having in mind the constitutional aim of protecting the person and property of the citizen from unreasonable search, we do not think it necessary that the affidavit contain statements that amount to evidence or to which the maker would be permitted to testify on the trial, but only such statements which, if falsely made, would sustain a prosecution against the maker, and which afford probable cause for the belief that an offense had been committed. We may add that in deciding whether the affidavit shows probable cause it is quite proper for the court to consider, if he knows, the character of the person making the affidavit, as well as that of the person from whom the information was obtained. Presumably the judge issuing this warrant was acquainted with the maker of this affidavit and him from whom the information was first obtained. He had, as we have said, the right to consider the source of the information in connection with the statements made. Having done so, there appeared to him probable cause for issuing the warrant. We cannot say that this conclusion was wrong. It follows that the evidence complained of was properly admitted, and, there being no other errors assigned, the judgment is affirmed. Whole Court, except McCANDLESS, J., sitting. |