| Mo. | Mar 15, 1872
delivered the opinion of the court.
Mrs. Ann Biddle by her last will and testament devised to Peter Richard Kenrick, Bishop of St. Louis, tract A, as designated on the plat of partition among the heirs of John Mullanpliy, being the third tract west of Eighteenth street, in St. Louis, containing twelve- and a half acres of land. It is the same tract how the site of the Academy on Cass avenue. The devise to Bishop Kenrick was in trust to found and establish upon the property so devised, forever, a house of the order of the Ladies of the Visitation of St. Mary, to be commenced within five years after the death of the testatrix, and to be under the control of that branch of the order then occupying the house of said testatrix, in block No. 556 of the city of St. Louis. The ladies of the order under whose charge it was to be placed subsequently were incorporated, and the present suit is in their corporate name. By their charter the Bishop was expressly authorized to convey to them the property thus derived, and did so. The heirs of Madame Biddle (she left no residuary legatee) are made parties to this suit, except such as have released any supposed right they may have in the premises, some of whom have done so since the commencement of this suit.
By the encroachment of the city upon the property it has become necessary to open a street through it, which will cut off several acres of the land from that part of the grounds on which the Academy has been erected. In accordance with the terms of the devise, an academy was erected and improvements made at an expense of some $175,000, of which $100,000 remains as a debt against the corporation.
The petition in substance alleges that by cutting off the part of the site referred to,, it will be entirely useless for the purposes of the charter, unless it can be sold and the proceeds of sale appro-' priated to the purposes intended by the testatrix; that by selling
The defendants demurred to the petition, and the demurrer being overruled, they answer, raising the same questions by way of answer; at least the same questions arising on the trial were presented by the demurrer, as the evidence established the facts as stated in the petition.
The jurisdiction of courts of equity over charitable devises and bequests is said to be derived from their general authority to carry into execution the trusts of a will or other instrument, according to the intention as expressed by the donor. (2 Sto. Eq. Jur., § 1187; Attorney-General v. Ironmongers’ Company, 2 Mylne & Keen, 581.) In this case the charity is specific and for a lawful purpose. Bishop Kenrick was the original trustee. The plaintiff was created a corporation with a power to receive the trust, and did so by conveyance from Bishop Kenrick. This charity must be administered in accordance with the intentions of the testatrix as declared in her will. Unforeseen circumstances have transpired which isolate a part of the grounds and render them totally unfit for the purposes designed by the testatrix. But the corporation has, in furtherance of the trust, expended large amounts of money and is still in debt; and a sale of this property, and application of the proceeds to the payment of this debt, will be in furtherance of the very purpose for which this charity was created. Has not a court of equity the power to authorize this conversion? (See Stanley v. Colt, 5 Wall. 119" court="SCOTUS" date_filed="1867-02-18" href="https://app.midpage.ai/document/stanley-v-colt-87817?utm_source=webapp" opinion_id="87817">5 Wall. 119.) If it be necessary, the doctrine of cy-pres may be invoked to sustain the application. (2 Sto. Eq. Jur., § 1176.) That doctrine is that if the charity cannot be carried out in the exact mode indicated by the donor, or if that mode should become by subsequent circumstances impossible, the general object is not to be defeated if it can in any other way be obtained. (Att’y-General v. Boulther, 2 Ves. 380, 387; s. c., 3 Ves. Jr. 220; Attorney-General v. Ironmongers, 2 Mylne & Keen, 576-88; 2 Bean, 313; Martin v. Maugham, 14 Simons, 230.)
The defendants, as heirs at law of the donor, cannot be allowed to defeat this application. In no event would a court of equity
The defendants, however, are proper parties in interest, and are brought before the court in order that a clear and indefeasible title may be made to' the purchasers.
Judgment affirmed.