Creech v. Scottish Rite Hospital for Crippled Children

211 Ga. 195 (1954)

84 S.E.2d 563

CREECH et al. v. SCOTTISH RITE HOSPITAL FOR CRIPPLED CHILDREN et al.

18764.

Supreme Court of Georgia..

Argued October 11, 13, 1954.

Decided November 8, 1954.

Victor Davidson, Benning M. Grice, for plaintiffs in error.

Eugene Cook, Attorney-General, Hamilton B. Stephens, F. Douglas King, Assistant Attorneys-General, A. O. B. Sparks, Jr., Durwood B. Mercer, Jones, Sparks, Benton & Cork, contra.

*197 DUCKWORTH, Chief Justice.

1. While a hospital is not per se a subject of charity as defined in Code § 108-203, and depends upon the service given as to whether or not it is a subject of charity within the meaning of the above statute (Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349 (2), 9 S. E. 2d 165), nevertheless the devise "to the Masonic Hospital of Georgia, for tubercular children" is a charitable bequest within the meaning of the provisions of that Code section, to wit, "other similar subjects, having for their object the relief of human suffering or the promotion of human civilization."

2. From a consideration of the entire will and codicil, it is apparent that the legacy "to the Masonic Hospital of Georgia, for tubercular children" was not intended for the benefit of any particular institution, but for the benefit of the tubercular children as a class with the particular hospital named to perform the office of trustee. Goree v. Georgia Industrial Home, 187 Ga. 368 (200 S. E. 684).

3. Where, as here, the manifest intention was to create a charitable trust for tubercular children, and even though the charitable institution named never existed, the purpose and object for which the trust was created still exists and the legacy does not lapse, and the cy pres doctrine applies. See Code Ch. 108-2; Code §§ 108-302, 113-815; 69 C. J. 42; 14 C. J. S. 514-16; Beckwith v. Rector &c. of St. Philip's Parish, 69 Ga. 564; Mitchell v. Turner, 117 Ga. 958 (44 S. E. 17); Goree v. Georgia Industrial Home, 187 Ga. 368, supra; Armstrong v. Merts, 202 Ga. 483 (44 S. E. 2d 512). It follows that the heirs at law of the testator having no interest in the bequest, the court did not err in striking their pleadings, setting up their claims as heirs, alleging the legacy had lapsed.

Judgment affirmed. All the Justices concur.