SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Petitioner, v. DIVISION OF WORLD MISSIONS OF THE BOARD OF MISSIONS OF THE METHODIST CHURCH, Respondents, 341 S.W.2d 896

CALVERT, Justice. This case involves the construction of certain clauses of the will executed by Theodore M. Plummer, deceased. Suit for declaratory judgment was filed by the National Bank of Commerce of San Antonio, as intervenor, naming as defendants the San Antonio Independent School District and the Division of World Missions of the Board of Missions of the Methodist Church.

The defendants both claim the residuary estate under Plummer’s will, the World Missions claiming under the primary residuary clause and the School District asserting claim as alternate beneficiary on the theory that the bequest to the World Missions has failed. The trial court, sitting without a jury, rendered judgment for the School District. The Court of Civil Appeals reversed and rendered judgment in favor of the World Missions. Division of World Missions v. National Bank of Commerce, 326 S.W.2d 934. The judgment of the Court of Civil Appeals is hereby affirmed.

Plummer executed the will involved in this suit on October 19, 1943. Codicils were later executed on February 14, 1945, and July 1, 1948. These codicils are not in litigation. Plummer died on January 29, 1949, and his will was probated in Bexar County, Texas. The residuary estate was devised to the National Bank of Commerce as Trustee, with directions to pay the net income to the testator’s wife, Mrs. Mabel B. Plummer, during her lifetime. The Trustee carried out this provision until Mrs. Plum-mer’s death on June 27, 1957.

Plummer’s will provided for the following disposition of the residuary estate to be made after the death of Mrs. Plummer, the life beneficiary: “VIII. * * * It is my will and desire that upon the death of my wife, Mabel B.

Plummer, all the corpus or assets in said Trust shall go to The Division of Foreign Missions of the Board of Missions and Church Extension of the Methodist Church, Incorporated by the State of New York, with present headquarters at ISO Fifth Avenue, New York City, New York, hereinafter called “Mission Board”, for the purpose of physical and material relief only, such as food, clothing, medicine, shelter, etc., for needy Chinese people in China to be so used as rapidly .as possible, consistent with good judgment and results, which I think will very likely be for the most

part in the post war period, when China is accessible and there are no War Chests and there is less emotional sympathy for China.” * * * * * “XII. I hereby authorize and empower the said Mission Board to deduct five (5%) per cent of all sums received by it from bequests herein, said five (5%) per cent to be deductible only once and not to be cumulative or repetitious, for its overhead, operation and distribution expenses or fee, to all of which it has agreed.

It is my desire and I hereby direct that the remaining Ninety-five (95%) per cent shall reach the ultimate beneficiaries or consumers in the form of money, shelter, supplies or other material relief, free of all charges or deductions, except direct original costs and transportation, and that all relief received from this bequest shall be over and above any relief that would have been received by the ultimate beneficiaries without this relief, which is to say, that this bequest shall not be a substituí for other relief, and that my desires shall not be evaded or thwarted by using funds of this bequest where other funds would have been used, and shifting those other funds to other places or purposes.

I approve religious work that the Mission Board may desire to do at its own expense and with other funds supplemental to this relief, and of incidental benefits thereto which it may get, but the Mission Board shall be in honor bound not to lessen its other work with or benefits to the ultimate beneficiaries of this bequest, because of this bequest. I am not a Methodist and have in mind solely the beneficiaries herein named and am using this Mission Board for the purpose of efficient distribution.

The Methodist Church has specialized in Chinese work and therefore should be well qualified for my purposes.” ⅜ * * * * * “XIV. * * * In the event the Mission Board shall refuse to accept or qualify for any bequest herein bequeathed to it, then and in that event the bequests herein made to it shall go to the School Board of San Antonio, (Texas) Independent School District, without restrictions, except that it shall be used for extra school work or activities, and not for the payment of debts or for buildings, nor for any expenses that the taxpayers should or customarily pay for.” ⅜ * * * * * “XVI. * * * As a group, social workers do not impress me as qualified to chart people’s lives nor do I think their degree diplomas are certificates of near omnipotence as at least some appear to believe, by the way they scorn lay opinions.

I therefore prefer to stick to the fundamentals or “grass roots” of material and physical relief and have chosen a field so broad and needy that doubtful cases need not be considered and I leave the social work to the many who prefer it.

There is room for both views, especially as so many types pf domestic relief and social work are now generally well supported by both the public and by governments, local, state and federal, with resulting controversies and complications into which I do not desire to deeply enter.” “I have selected China, with no prejudice, however, against other fields, as one of the world’s largest fields for productive charity, where hundreds of millions of people of a backward hut old and cultured race and civilization make a vast and fertile field susceptible to benign modernization and unlikely to make it malign as did the Japanese, whose people have endured slaughter and distress beyond comprehension, where resources are low and the people as a whole are kindly disposed and industrious, and have the capacity to appreciate and absorb the good in modern life if offered to them.

I do not claim perfection for them or for any race or nationality.” The present controversy has arisen by virtue of the fact that, because of the existing international situation, the Mission Board cannot carry out the terms of the trust if it may provide food, clothing, medicine, etc., only to needy Chinese people in that part of historic China situated on the Asiatic mainland. Such activities there are proscribed by the governments of both the United States and the Chinese People’s Republic.

The Mission Board, however, avers that it is prepared to carry out the trust on the island of Formosa, where the government of Nationalist China will welcome such assistance, and in the British Crown Colony of Hong Kong. The School Board has vigorously contested this position, and has presented three major questions to this Court for determination:

(1) Can the provisions of the Plummer will relating to charitable operations in China be carried out by dispensing the funds on the island of Formo.sa or in the British Crown Colony of Hong Kong?

(2) If not, does the Mission Board’s signification of its willingness to take and administer the trust fulfill the requirement that the Mission Board “accept and qualify”, so as to deprive the School Board of the right to take as alternate beneficiary?

(3) Can the doctrine of cy pres be invoked to permit distribution of the charity in Formosa or Hong Kong, in view of the fact that an alternate beneficiary is named in the will? Under the view we take of the case, it is unnecessary to pass upon the second and third questions, for we have concluded that the provisions of the will can be carried out by administering the charity to needy Chinese people of China who are refugees in Formosa and Hong Kong.

We have reached that conclusion on the ground that it is our duty, as it must be our purpose, in the construction of the will to seek out and, if possible, to effectuate the intention of the testator. Hassell v. Frey, 131 Tex. 578, 117 S.W.2d 413; Burney v. Burney, 145 Tex. 311, 197 S.W. 2d 334; Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39.

Contrary to the assumption the School Board seems to indulge, the will does not require or provide that the Mission Board expend the funds derived from the estate in China, or even that the “food, clothing, medicine, shelter, etc.” shall be furnished in China.

All that the will requires is that the funds be used to provide “physical and material relief” to “needy Chinese people in China.” Conceivably, the Mission Board could set up a station just outside the Hong Kong gateway to China and dispense food, clothing and medicine to all “needy Chinese people in China” who wished and were able to enter Hong Kong to receive them. That would be a compliance with the will in its strictest

interpretation. But we do not believe that a reasonable or proper construction of the will places such a limitation on the Board in carrying out the purposes of the will.

Inasmuch as the will does not require that the testator’s charity be dispensed in China, it seems obvious to us that the testator used the phrase “needy Chinese people in China” as meaning “needy Chinese people of China.” The wording of his will discloses that the testator was thinking of the physical and material needs of a people who had “endured slaughter and distress beyond comprehension.” They were the people of a land of “hundreds of millions of people.” He knew that his beneficence could aid only a very limited segment of the people whose needs were so great.

It was for that reason that he stated that the field of need was so broad “that doubtful cases need not be considered.” Hundreds of thousands of Chinese people have fled from their homes within the boundaries of historic China on the Asiatic mainland and have become refugees. It is common knowledge that they are refugees from the type of slaughter and distress the testator described. Some two million of the refugees are now on Formosa. More than a million are in Hong Kong. These Chinese people are, within our general concept of domicile, still people of China who have left historic China only temporarily.

The reference in the will to China as a nation or a land is unimportant except as it designates the home of the people the testator wished to help. It was not his intention or purpose to aid in the agricultural, ■industrial or economic development of China. The obvious and logical reason for the testator to specify the “needy Chinese people ⅛ China” was to make certain that the funds were not used to benefit needy Chinese in such places as the Chinatowns of San Francisco and New York.

All of these persons could be classified as “needy Chinese”, and all might be deserving of charity, but they were not the people toward whom the testator felt a strong sympathy and desired to benefit by his will. By specifying “needy Chinese people in China”, the testator made certain that the funds would go to Asia to the Chinese people whom he desired to help. What reasons does the testator give for selecting the “Chinese people in China” for his charity? Are these reasons applicable to the Chinese refugees on Formosa and in Hong Kong, as well as to the people now in Communist China?

He wanted to benefit people who were in dire need of material aid, such as food, clothing, medicine and shelter; it is undisputed that the refugees in Formosa and Hong Kong are in need of such aid. He wanted to benefit a field “so broad and needy that doubtful cases need not be considered.” The Chinese refugees in Formosa and Hong Kong, though not inhabiting as large an area as Communist China, need far more assistance than any one man could give by his charity.

He wanted to benefit a group of people that he regarded as an “old and cultured race and civilization”; the Chinese refugees in Formosa and Hong Kong are all that remain in the free world of that race and that civilization. He wanted to benefit people who had “endured slaughter and distress beyond comprehension” ; that is as true of the refugees in Formosa and Hong Kong as it is of the people in Communist China.

Finally, although he was not himself a Methodist, he chose as his agent the Mission Board of the Methodist Church because it had “specialized in Chinese work”; this specialization and experience is as valuable in operations among Chinese refugees in Formosa and Hong Kong as it was in the older operational area of what is now Communist China. The people, the culture, and the problems are the same; only the immediate locale has changed.

It is our opinion that it was the intention of the testator to leave his charity to the Mission Board to be distributed among the needy Chinese people of China and it is well within its discretion to use the funds in providing for the physical and material needs of that segment of those people who are temporarily in Formosa and Hong Kong.

Surely it would be a thwarting of the intention of the testator to permit his charity to this group of needy people to fail completely because of vicissitudes in the political scene, when they are still within reach of his charity and, perhaps, are in greater need than he could ever have envisioned. The judgment of the Court of Civil Appeals is affirmed. SMITH, NORVELL and HAMILTON, JJ., dissenting.