care of an indigent tubercular sufferer is required the facilities of an existing hospital available for treatment of tubercular patients would have to be utilized whether the hospital was operated for profit or otherwise.
Defendants complain that the organizations, institutions and associations engaged in the work of caring for indigent native tubercular sufferers in and about New Orleans, are to be designated by three New Orleans churches. They claim that only two of those churches are incorporated. The thrust of the argument seems to be that only the two incorporated churches would have governing bodies and, therefore, competent to act. But they make no showing that the third and unincorporated church - Christ Church Cathedral - does not have a governing body. But even if it could be assumed that the Christ Church Cathedral has no governing body, a most unlikely condition, the trust provides that in the event it failed to act, the governing bodies of the two incorporated churches could make the necessary designations of the organizations, institutions and associations. In fact, if none of the churches acted, the trustee or its successor would have full power to use or apply the net income of the trust fund as it deemed wise "toward the purposes herein specified."
The United States Court of Appeals for the District of Columbia Circuit has held to be valid a trust very similar to the Wetmore trust. Beach v. Gilbert, 77 U.S.App.D.C. 117, 133 F.2d 50 (1943), affirming Gilbert v. Beach, 42 F. Supp. 168 (D.D.C., 1941). There the testator Baker in his last will and testament created a trust and named the plaintiff here as the trustee. Payments from the trust fund were to be made to three committees, one in Prince Georges County, Maryland, another in Montgomery County, Maryland and the third in Fairfax County, Virginia. Each committee was to consist of 5 persons and they were to be selected annually by pastors of certain named churches in the particular county. The funds received from the trustee by each committee were to be applied by the committee in its discretion for the medical welfare, support and care of indigent and indigent sick residents of the particular county. In the event that any one committee did not act to accomplish the designated purpose, the money that would otherwise be received by it would go to the remaining two committees for application by them for the medical welfare, support and care of indigent and indigent sick persons of their counties. The Court of Appeals held that: "Charitable trusts of indefinite duration for vaguely-defined beneficiaries have long been enforceable in the District of Columbia."
The organizations, institutions and associations to be designated by the New Orleans churches are no more indefinite and unascertainable as defendants contend than were the three committees provided for in the Baker trust. Nor is the method set up in the Wetmore trust for the designation of such organizations, institutions and associations any more uncertain, impracticable or impossible than was the method provided for in the Baker trust in the Beach case.
Equally without merit is the defendants' contention that the governing bodies of the three New Orleans churches are neither executors nor trustees appointed in the will and, therefore, have no fiduciary powers. As in the case of the church pastors designated in the valid Baker trust, the governing bodies of the three New Orleans churches have no executor or trustee duties. Their activity is limited to the selection of and proportioning annual trust income to New Orleans area institutions, organizations, and associations engaged in the work of caring for "indigent native sufferers from tubercular consumption in and about the City of New Orleans, Louisiana," the objects of the bounty of the testatrix-settlor.
The fact that the governing bodies of the New Orleans churches, as well as the organizations, institutions and associations selected by those bodies would be outside the jurisdiction of this Court does not make the trust invalid. The pastors of churches in Prince Georges County, Maryland, Montgomery County, Maryland and Fairfax County, Virginia, and the committee members selected by those pastors were all outside the jurisdiction of this Court in the case of the Baker trust which was held valid in Beach v. Gilbert, supra.
Defendants cite certain cases as authority for holding the Elizabeth Bisland Wetmore trust to be invalid. The Court has examined those cases and finds that they are inapposite here. Moreover, none is a District of Columbia decision. Beach v. Gilbert, 77 U.S.App.D.C. 117, 133 F.2d 50, continues to be the controlling law in this jurisdiction, which was the domicile of the testatrix-settlor. Here charitable trusts have always been favorites of the law and they are construed with liberality. Ould v. Washington Hospital, etc., 95 U.S. 303, 313, 24 L. Ed. 450 (1877). Board of Directors of City Trusts v. Maloney, 78 U.S.App.D.C. 371, 373, 141 F.2d 275 (1944).
Defendants' motions for summary judgment will be denied.
Plaintiff did not file a motion for summary judgment, but at the time of oral argument on defendants' motions for summary judgment counsel for the plaintiff and counsel for the defendants agreed that if this Court were to deny the defendants' motions it could, if it otherwise saw fit, enter a summary judgment for the plaintiff. It has been held that the mere failure to file a cross motion for summary judgment does not preclude the Court from entering such a judgment on its own motion. Boeing Co. v. International Union, United A., A. & A.I. Wkrs., 231 F. Supp. 930, 932 (E.D.Pa., 1964). Local 33, Int. Hod Carriers, Etc. v. Mason Tenders, Etc., 291 F.2d 496, 505 (2nd Cir. 1961). In view of the uncontroverted facts and the controlling law in this case summary judgment will be entered for the plaintiff.