(Code 1981, §53-12-170, enacted by Ga. L. 2010, p. 579, § 1/SB 131; Ga. L. 2020, p. 377, § 1-80/HB 865.)
Law reviews.- For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For note on discriminatory charitable trusts in Georgia, with regard to application of the cy pres doctrine, in light of Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), see 6 Ga. St. B.J. 428 (1970). For comment on Creech v. Scottish Rite Hosp. for Crippled Children, 211 Ga. 195, 84 S.E.2d 563 (1954), see 17 Ga. B.J. 512 (1955).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 108-203, former O.C.G.A. § 53-12-70, and former O.C.G.A. § 53-12-111 of the 1991 Trust Act are included in the annotations for this Code section.
Statute almost copies the statute of 43d Elizabeth, otherwise known as the statute of charitable uses, enacted by the English Parliament in the year 1601. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 108-203).
Subjects stated in former Code 1933, § 108-203 may constitute proper matters for charitable bequests or devises under former Code 1933, §§ 108-201 and 108-202. Trust Co. v. Williams, 184 Ga. 706, 192 S.E. 913 (1937) (decided under former Code 1933, § 108-203).
Incorrect designation of legatee.
- Charitable bequest will not fail merely because the legatee is not designated by its correct name, if from the will itself and admissible extrinsic evidence it can be determined whom the testator intended to receive and apply such bequest. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, §§ 108-201 and 108-203).
Courts look with special favor upon public charitable trusts. Goree v. Georgia Indus. Home, 187 Ga. 368, 200 S.E. 684 (1938) (decided under former Code 1933, § 108-203); Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954);(decided under former Code 1933, § 108-203).
Beneficiaries in public charities must necessarily be described in general terms. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 108-203).
Will devising property in trust for "religious, educational, charitable, and humanitarian" purposes creates an estate exclusively for charity, which a court of equity will enforce. Pace v. Dukes, 205 Ga. 835, 55 S.E.2d 367 (1949) (decided under former Code 1933, § 108-203).
Charitable bequests to the American Bible Society are valid. Beall v. Fox, 4 Ga. 404 (1848) (decided under former law).
Charitable trust was effectively created even though the testator did not use the words "trust" or "trustee" in the testator's will, since the testator bequeathed the bulk of the testator's estate to charitable organizations meeting certain requirements and imposing active duties on the executor in regard to the selection of specific charities. In re Estate of Chambers, 261 Ga. App. 737, 583 S.E.2d 565 (2003) (decided under former O.C.G.A. § 53-12-111).
No charitable trust created.
- Breach of charitable trust claim against a nonprofit hospital that treated a patient and pursued a bill collection action when the patient was unable to pay was dismissed; allegation of the formation of a charitable trust when the hospital accepted tax-exempt status did not qualify as either an express or implied trust and no settlor existed. Hudson v. Cent. Ga. Health Servs., F. Supp. 2d (M.D. Ga. Jan. 13, 2005) (decided under former O.C.G.A. § 53-12-111).
Cited in Jones v. Habersham, 107 U.S. 174, 2 S. Ct. 336, 27 L. Ed. 401 (1883); Kelley v. Welborn, 110 Ga. 540, 35 S.E. 636 (1900); Egleston v. Trust Co., 147 Ga. 154, 93 S.E. 84 (1917); Eagan v. Commissioner, 43 F.2d 881 (5th Cir. 1930); First Nat'l Bank v. Knowles, 179 Ga. 377, 175 S.E. 791 (1934); Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940); Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940); Tillman v. Mayor of Athens, 206 Ga. 289, 56 S.E.2d 624 (1949); Strother v. Kennedy, 218 Ga. 180, 127 S.E.2d 19 (1962); Williamson v. Southern Regional Council, Inc., 223 Ga. 179, 154 S.E.2d 21 (1967); Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969); Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973); Marshall v. Trust Co., 231 Ga. 415, 202 S.E.2d 94 (1973); Molton v. Lizella Recreation Club, Inc., 172 Ga. App. 154, 322 S.E.2d 354 (1984).
Relief of Aged, Impotent, Diseased, or Poor People
1. In General
Gentlewomen are not ordinarily objects of "suffering humanity;" however, the phrase "Home for Gentlewomen," could be construed as creating an institution for the promotion of "human civilization." Bramblett v. Trust Co., 182 Ga. 87, 185 S.E. 72 (1936) (decided under former Code 1933, § 108-201).
2. Hospital
Hospital is not, any more than a drugstore, a charitable institution per se; and, in order for a devise or other gift establishing a hospital to come within the classification of a charitable institution, the terms of the gift must themselves require that it be operated in whole or at least in substantial part for the gratuitous relief of its inmates. Trust Co. v. Williams, 184 Ga. 706, 192 S.E. 913 (1937) (decided under former Code 1933, §§ 108-201 and 108-202); Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938);(decided under former Code 1933, §§ 108-201 and 108-203).
Fact that a hospital is to be created as a memorial to the testator and others does not operate to change the rule that hospitals are not per se charitable institutions, so as to make the legacy a valid charitable trust. Trust Co. v. Williams, 184 Ga. 706, 192 S.E. 913 (1937) (decided under former Code 1933, §§ 108-201, 108-202, and 108-203).
While a hospital is not per se a subject of charity, and it depends upon the service given as to whether or not it is a subject of charity within the meaning thereof, nevertheless a devise "to the Masonic Hospital of Georgia, for tubercular children" is a charitable bequest within the meaning of the statute. Creech v. Scottish Rite Hosp. for Crippled Children, 211 Ga. 195, 84 S.E.2d 563 (1954), for comment, see 17 Ga. B.J. 512 (1955) (decided under former Code 1933, § 108-203).
Test which determines whether a hospital is charitable or otherwise is the hospital's purpose, that is, whether the hospital is maintained for gain, profit, or advantage, or not; and the question of whether a hospital is maintained for the purpose of charity or for that of profit is to be determined, in case the hospital is incorporated, not only from the hospital's powers as defined in the hospital's charter, but also from the manner in which the hospital is conducted. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 108-203).
Hospital is not per se a subject of charity; whether a hospital is such subject of charity depends on requirement of hospital service rendered for relief of human suffering as related to the poor, and to be free of charge where there is inability to pay. When such is the purpose and the hospital operates in pursuance of that purpose, it is a subject of charity within the meaning of the law. Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349, 9 S.E.2d 165 (1940) (decided under former Code 1933, § 108-203).
When the finding was authorized that hospital owned and maintained by the City of Augusta, commonly known as the "University Hospital of Augusta, Georgia," and thus designated in the will in question, was a charitable institution, owned by the city and maintained primarily for the gratuitous treatment of the sick and needy of the city and county, and that by that item the testator intended the estate therein bequeathed to be applied to the promotion of the charitable objects of such hospital, the charitable bequest, being valid, would be given effect. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 108-203).
When residuary bequest, construed in connection with all the items of the will and the statutory law showed the intent of the testator to require hospital service free of charge to poor people who were unable to pay, the proposed hospital was a proper subject of charity within the meaning of the law, and this result was not altered because of the further intent to charge persons able to pay, since the receipts from that service were to be devoted to maintenance or improvement of the hospital, with no element of private gain. Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349, 9 S.E.2d 165 (1940) (decided under former Code 1933, § 108-203).
Requirement of compensation from patients able to pay.
- When a hospital can otherwise be classed as a charitable institution, the fact that patients who are able to pay are required to do so does not deprive the hospital of the hospital's charitable character. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938) (decided under former Code 1933, § 108-203).
3. Home for the Elderly
Testamentary trust to an "old folk's home" was not invalidated as not being for a proper object of charity because poverty was not imposed as a condition to the receipt of benefits under such a charity. Houston v. Mills Mem. Home, Inc., 202 Ga. 540, 43 S.E.2d 680 (1947) (decided under former Code 1933, § 108-203).
Educational Purposes
Formalities of trust law are inappropriate to the administration of colleges and universities which, in this era, operate as businesses. The actions of the directors of nonprofit colleges must be reviewed in light of corporate rather than trust principles. Corporation of Mercer Univ. v. Smith, 258 Ga. 509, 371 S.E.2d 858 (1988) (decided under former O.C.G.A. § 53-12-79).
Manifest intention required.
- While educational purposes are proper matters of charity, and while no formal words are necessary to create a trust estate, there must be a manifest intention to do so. Moore v. Wells, 212 Ga. 446, 93 S.E.2d 731 (1956) (decided under former Code 1933, § 108-203).
Public Conveniences
Parks and pleasure grounds.
- Georgia cities and towns are authorized to accept devises of property for the establishment and preservation of "parks and pleasure grounds" and to hold the property thus received in charitable trust for the exclusive benefit of the class of persons named by the testator. Evans v. Abney, 396 U.S. 435, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970) (decided under former Code 1933, § 108-203).
Private Charity
Gift to poor relations or for their benefit is a private gift, although it would prevent their becoming a public charge; but a gift may constitute a public charity and not a private trust, when it provides for the poor generally and gives a preference to relatives of the donor. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 108-203).
To establish a permanent charity for one family, and thus permit the perpetual holding together of property, which the statute against perpetuities was designed to prohibit, is not justified by the slight prospective public good that might come from educating or keeping off of the public charity rolls the poor of one family. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 108-203).
Devise for the purpose of defraying medical expenses of blood relatives of the testator who because of poverty or old age were unable to pay for such services, and for educational loans to deserving persons who were dependents of testator's blood relatives, was not a devise for public charity; and the trial court did not err in holding that the intended trust was void and in ordering that the residuum of the estate be distributed under the laws of descent and distribution as in the case of intestacy. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 108-203).
Rule Against Perpetuities
Estate obnoxious to rule against perpetuities.
- Courts will not permit the execution of a power when the effect will be to create an estate obnoxious to the rule against perpetuities. However, there is no merit in the contention that a devise in trust to the trustees of the University of Georgia for the use and benefit of the Georgia School of Technology is invalid as a perpetuity. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938) (decided under former Code 1933, § 108-203).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 108-203, are included in the annotations for this Code section.
Relief "for the maintenance and medical or surgical treatment of the poor of Atlanta," is a charitable purpose. 1960-61 Op. Att'y Gen. p. 518 (decided under former Code 1933, § 108-203).
RESEARCH REFERENCES
Am. Jur. 2d.
- 15 Am. Jur. 2d, Charities, § 68.
C.J.S.- 14 C.J.S., Charities, §§ 11, 26 et seq.
ALR.
- Validity of trust for religious purposes not limited by sect or denomination, 22 A.L.R. 697.
Revocability of some of subscriptions for charitable purpose in reliance on which money was expended or liability incurred, affecting enforceability of irrevocable subscription, 33 A.L.R. 625.
Gift to boy or girl scouts as a valid charitable trust, 46 A.L.R. 827.
Gift for retirement or pension fund of teachers or other public officers or employees as a valid charitable trust, 47 A.L.R. 63; 110 A.L.R. 1369.
Provision for public utility or convenience commonly supplied at expense of taxpayers as subject of valid charitable trust, 50 A.L.R. 593.
Gift to preserve or develop beauties or nature as a valid charitable trust, 52 A.L.R. 980.
Preservation or protection of animals or birds as subject of charitable trust, 66 A.L.R. 465.
Gift to prohibit or minimize manufacture, sale, or use of intoxicating liquor as a valid charitable trust, 73 A.L.R. 1361.
Validity of charitable trust in respect to certainty of beneficiaries designated as "the poor," "the needy poor," "worthy poor," etc., 99 A.L.R. 657.
Validity of charitable trust which employs term "unfortunate" or "unfortunates" as descriptive of intended beneficiaries, 111 A.L.R. 719.
Effect on certainty of purpose or beneficiaries of a charitable gift, of the possible, but not required, inclusion of a noncharitable object, 115 A.L.R. 1123.
Provision for relief or education of member of family or relatives as creating charitable trust, 131 A.L.R. 1277.
When existence of institution named as beneficiary deemed to have ended, within contemplation of provision of will in that regard, 152 A.L.R. 1303.
Validity, as for a charitable purpose, of trust for dissemination or preservation of material of historical or other educational interest or value, 12 A.L.R.2d 849; 34 A.L.R.4th 419.
Trust for school children as charitable, or merely benevolent, 25 A.L.R.2d 1114.
Gift to or for employees' pension fund as valid charitable gift or trust, 28 A.L.R.2d 428.
Validity, as a charity, of trust to lend money to students, 33 A.L.R.2d 1183.
Gift for maintenance or care of private cemetery or burial lot, or of tomb or of monument, including the erection thereof, as valid trust, 47 A.L.R.2d 592.
Validity, as charitable trust, of gift for prize or award to person or persons accomplishing specified results, 7 A.L.R.3d 1281.
Validity of charitable trust to promote change in laws or systems or methods of government, 22 A.L.R.3d 886.
Validity and effect of gift for charitable purposes which excludes otherwise qualified beneficiaries because of their race or religion, 25 A.L.R.3d 736.
Validity and construction of testamentary gift to political party, 41 A.L.R.3d 833.
Effect on charitable trust or bequest for particular school or school district, or students or graduates thereof, of change in school or district structure or organization, 68 A.L.R.3d 997.
Validity, as for a charitable purpose, of trust for publication or distribution of particular books or writings, 34 A.L.R.4th 419.
Validity of charitable gift or trust containing gender restrictions on beneficiaries, 90 A.L.R.4th 836.