*1 James Costello’s property, subject to administration and lawful charges. She shared income the property. Furthermore, enjoyed she privilege transferring property by will to her daughters. We think she actually enjoyment came into the meaning within the the act. words, Legisla- other ture, by the only above italicized words, intended the time distribu- tion the time of the final assessment property. (cid:127) judgment should be affirmed. It is so ordered. All concur, ex- cept Leedy, J.; sitting. Beatty Wallace, and Melissa Burrier, Wise,
Eliza Bird Blanch Will of Lewis Appellants, E. Executor Jones, G. as Prose Barrow, County, Wilson Lowmiller, Macon A. F. W. cuting Attorney of Powers, Macon Ed. County Court Judges E. and W. Wilkerson, Gates (2d) 885. Macon County. Banc,
Court 1936. en March *2 Ed William & Jones, Cleve, M. Van McDonald Saltsman C. appellants. F. Hale for Hughes, Hughes,
Dan John B. B. Wilson Barrow B. and Glenn D. respondents. Evans *3 Low-
BRADLEY, of Lewis C. This is to the will cause construe find The May miller 1933. Missouri, who died in Macon ing judgment below went for defendants and unsuccessful lodged first trial, appeal was plaintiffs appealed. motion for new The on here City Appeals the Kansas Court of and was transferred ground VI,, 12, Con Sec. that title to real is involved. estate [Art. 64 S. App. 379, 164 stitution; McNulty, Moore v. 76 Mo. County Gabel, Karl Also Macon App. 48 Mo. jurisdic Constitution, party, Article VI of the under Section Supreme tion in the Court. notary Jones, public, but defendant, will was written is as lawyer, will. will not a under the and Jones executor
follows, AND except signature “LAST WILL paragraph: and witness Valley Township of Town- I, TESTAMENT. Lowmiller of the Lewis Missouri, being County of sound ship Macon and State last disposing mind, publish declare make, do made. hereby revoking all wills me heretofore and testament *4 including my my just paid, “1st. debts are I all of direct expenses recording instrument. funeral and of this my remaining of estate give bequeath part “2nd. I devise and Mo, funds. personal County both the Macon real and Callao, E. of Macon hereby appoint “3rd. I G. Jones constitute and testament. my last will and County, Missouri, to of this executor be 18th hand this whereof, I set “In have hereunto testimony day 1932.” October, of death and eighty-three the time of his years old at testator was quite when from Ohio He to Missouri
was never married. came family as a foster young, Lyons he was reared John in whose .ninety acres of At a farm son. of his death testator owned time greater property, personal considerable Macon and had in are Plaintiffs government bonds and cash. part of of which consisted Plaintiffs, Eliza Ohio. in kin testator and reside collateral Blanch testator, plaintiff, and are nieces of and Bird Wise Burrier Beatty a half sister. Plaintiff, grandniece. Melissa Wallace ais plaintiffs, appellants contention of here, is that the second of clause the will is void and cannot be creating construed as a chari- trust table or County use Macon administered under Sections 12127, 12128 and 12129, Revised Statutes 1929. Defendants contend that the of second clause the will creates valid charitable trust for the advancement education, of and that the second clause should be construed to mean “that Macon County, Missouri, has desig- been nated as trustee” and that “the trust can operative be made under judges direction and control of the county said county, for the use and benefit of the school county,” funds of the under Sections and Revised Statutes 1929. petition plaintiffs
In the allege that the second clause of the will which devises the County Mo, residue estate “to Macon school funds” is void “because the failure of the said testator to designate legatee donee, said will a beneficiary or of said laws, capable taking the same under the Missouri, the State of and that said uncertainty impossible clause is void for and of execu- tion, plaintiffs allege and property remaining that as to all of the after payment debts, testator’s testator said died intestate.” 12127, among
Section things, provides county other “each this state shall power acting uses, have the as trustee for charitable or, and by grant, as such trustee to gift, bequest devise, take and hold money and real, personal other property, mixed, given, and granted, bequeathed devised, uses, or shall trust charitable have power, by through executing county court, its trusts created it for ample charitable uses in full and as as a manner an individual.” provides
.Section money all other cases where or property, real, personal given, bequeathed or granted, mixed has been county state, devised in any trust charitable in this uses county judges to the court or county court, whether the judges names of gift, are or are inserted in the instrument “shall by be deemed taken all in law courts this state equity to have county been made in the said mentioned instru- ment, and such and taken to have been shall deemed created by trustee such . . power, instrument . and shall have through county court, to execute trust created instrument full ample manner as an individual. provides
Section 12129 that all counties which have been created trustees for uses, together property, with the trust “shall supervision be under the control circuit courts *5 respective counties, through respective counties, and said and their county courts, may any apply respective at to their time circuit courts for advice and direction in the execution of their trusts for charitable uses.” trial ambiguous the On theory that clause the second surrounding the circumstances heard facts and evidence of extrinsic expressed in- his will and of
testator time of execution at the de- theory On this sharing estate. his kin in his tention bar to in and “came testify that testator permitted to fendant Jones was Well, the will. me to write to and asked said he make a will he wanted down, he put he wanted I it how questioned him later then and I asked County funds.’ school give ‘I Macon said want to it to the ‘Oh’, said, he relatives, relatives, if concerning him his he had his brother nieces, dead’; said he ‘they all he didn’t mention were he wanted how I asked him Then was dead and his sisters were dead. ’’ Mr. said. just he write will me I wrote to and he told and that and will to testator he read the Jones further testified for defend- Tyrene Ward, a witness for the testator read it himself. the'will after testator ants, testified he had a conversation his thought of Iwhat and that the “asked me written testator I Lowmiller, ‘Mr. thought I said: stand, will if I it would wrote said, ‘who not’; I it, about it will don’t know whether stand County school ‘I it Macon ‘Jones’; he to it’ and he said said willed . . and . way’ funds’; said, ‘well, you it that I come do how ” went way.’ Testator said, you get of it that he will some ‘all Jerry VanDyke, on neighbor, home of December home, at this While 23, 1933. May there till his on remained death will his Dyke testator, “had made he, Van testator told kinfolks his want “he didn’t fund”, Macon and that right.” they him nary cent he had for treated have hadn’t function a court construe a will not to make guise rewrite one the testator under the of construction. [69 J. Fulkerson, C. Scott Mo. (2d) Grenze Franke, 315 bach v. Mo. S. W. If expresses unequivocal intention testator clear and there can construction, be no occasion but if when read from the four corners there is to what the testator intended, doubt as may then resort the rules in determining made to of construction to aid the in tention testator. Our books expressions are flush with rules among for the construction of wills many clear state pertinent Perry, ments of law in Grace v. found controlling l. c. as follows: “The rule in con struing State, in this wills to which technical all rules construction give is, give way, must effect to true intent meaning gathered instrument, the testator as the same from the whole law; arriving if violative of some established rule of at intention, the relation the testator beneficiaries named surrounding him at the time of its in the will and the circumstances consideration, and the will read execution are to be into as near taken *6 givmg effect, if may standpoint, possible, every be from Ms end, portion it, be, may and this if need words be clause and transposed.” supplied omitted, and and sentences Hubbard, 217 v. Mo. l. c. 118 S. in McMahon And “Among is the cardinal often law written thus: rules the wills presumption the by invoked court in the construction of is this dispose pre This the intended to his whole estate. testator general there a inten sumption this, that where seems amount disposition thereby complete appearing in will to make tion weight general property, of the intent allowed all testator’s particular by may determining intended devise ad what was Watson, v. c. enlargement limitation. Mo. l. mit of [Watson states, other is well established may Whatever be the rule pursuing general prevent and presumption State that this incongruous happening condition of estate passing by may partly descent, supplied, words trans partly will, and be may changed perish in the will ‘that the instrument formed so parties the palpable manifest intent of not defeated and the ” of the scrivener.’ error controversy construction, no about the rules of but as There is guise appears, will or rewritten under the of con not be made equity will Charitable trusts are favorites and struction. “by possible applying most liberal rules as valid when
construed admits,” which and such trusts nature of case “are often 307; Buckley fail.” C. v. private trusts would J. upheld where [11 Morris, 137, 155 S. W. (Mo.), 187 S. W. Monck Mott (N. S.) L. R. 434; Hadley Forsee, 418, 101 S. W. A. 203 Mo. 49 and note.] ambiguity
In the instant there is It from what the intended. It is will. is clear as to testator just do, will that testator intended to do what he did clear County “to Macon viz., Mo, school devise the residue of his estate punctuation lack not obscure- punctuation does funds.” hence intended, what was all the extrinsic evidence ad- least incompetent. mitted was al., al. 277 Mo. v. Crutcher
Robinson et et para- quite residuary similar on the facts to the instant case. The question in case were graphs in as follows: Crutcher my property of The residue of whatsoever kind and “Fourth. equal I will direct shall be divided into three wheresoever situate parts. give bequeath capital I parts third to the
“Fifth. One of such 10 in fund T. Monroe Mis- township souri. ‘‘ bequeath give I parts capital of such third Sixth. One county. Monroe public school fund of give bequeath parts I
“Seventh. One of sneh third capital of of Missouri and I direct public school fund of state the several pay public executor to the lawful custodians of over to clauses of this preceding two school funds mentioned given as aforesaid. shares school funds will the several to said that: there held “In the Crutcher case was en banc *7 a trust, separation there be a it is essential that creation of enjoyment of same. . legal the beneficial . . of the estate separation the donor, indicated the words of other This must be equitable person, will in legal estate meet the same wise the merger equitable extinguished by estate.” As trust be a of the the Ruling Law, 295; Case law the court supporting the so stated cited S.) (N. A. (Md.), 64 7 R. Vestry Parish, Doan v. of Atl. L. etc. in the ease Rep. pointed 115 Am. St. 379. It was out Crutcher capital township, county testator’s will named the the capital donees, and as used and State school that the word funds as .the given significance generally applied to it had than other private public to funds. directly byor reason- the said: “Neither court in Crutcher case designated legal the implication is who can take title
able a donee bequeathed appointment the and thus the of a to funds authorize provisions under liberal trustee. The that can be said of these a utmost interpretation purpose the the donor is that it was to add same language money employed money benefit of education. The to the construction'by being doubt, in will no room for a the free from is left clothed implication which insert the of those the would names general the custody funds, with the statute school under rule legal title a trust is whom the is vested expressed party where the to there is will be held trustee for the reason no such the bequeathed vesting natural of title of funds or artificial required trust. it entity, as is to create the would becomeneces- Hence will, write into sary, same, to sustain to otherwise clear and unambiguous, legal take names the donees who would title bequeathed. This, making in a effect, would result to the funds will, ample power construing a even under instead of course, trust, a in the given equity to sustain language employed, would be presence of the unmistakable unau- Trigg 1011; 192 W. Trigg, S. Peak R. S. thorized. [Sec. Co., Peak, 195 W. Deacon v. St. L. U. T. S. S. 261.]” goes say that was on to con- the court the Crutcher case And in the employed by testator seventh “that tended lawful directing pay over to the custodians of clause, to his executor fifth, sixth and funds, mentioned seventh public given funds, to said will shares therein con- clauses of the the several designation donees to characterize the be- a sufficient stitutes disregard direction, quests as This unless we charitable trusts. necessary express terms, in reference to
plain which is involved a controversy, provisions of the does not sustain con- clauses provides conformity tention. In the direction these clauses turning named, custodians those over of the shares to the given given, them, which had none been either been because had given by implication, in terms but those which had been provision emphasize school funds The effect of this is to aforesaid. designation themselves, expressed donees as clauses bequeath these purpose was the shares and that the donor themselves, legal and not his estate to the school funds short, of like part custodians of funds character. provides for a bequest review and not for the funds
under question. “as power In the Crutcher it is said that (Sec. within R. S. now Sec. court, the statute 1929) there can proper facts, act as trustee under state *8 question,” necessary exist, no not but it was held the facts did attempted further, of Section application was held the 3747, 1909, 12128, Revised Revised Statutes Statutes now Section 1929, the of not question, to construction will there in could be the of made because absence of the creation of such a trust the county permit judges as would names the of “the of the to bequeathed be inserted as of the custodians the shares cy school fund.” invoked pres The in Crutcher case doctrine was the cy pres, of this the court said: doctrine of or that “The of approximation, validity bequests. sustain invoked to the of these have, discussing issue, in other phases We of the matter at adverted uniformly given testamentary the donations, liberal construction policy equity valid, gifts due to the of of declare if possible, courts charity. It general power is in of the the exercise this doctrine pres cy donor, of intent of if im authorized the found possible court, of execution, may, under be the order carried possible. near 249 Morris, 145, out as as v. Mo. l. c. S. W. [Mott application An essential doctrine the ascertain 434.] language employed donation, ment from the in the as to who was in although tended to take If taker, as trustee. in instant case tangible in a sense far as money considered, so can be mere so has meaning legal within the law entity, no either natural or ar tificial, pres cy then the properly doctrine of cannot invoked, be approximate or, cause that exist; put cannot be which does not dif ferently, with the same effect as to the in reached, conclusion absence such a authorizes, taker as law no created, trust is and, trust, absent the creation application there is no room for the Ins., 264 Mo. l. c. pres. Coll. cy v. Scarritt of the doctrine of [Catron 434; S. Morris, 155 W. 571; Mo. l. c. 175 S. W. v.Mott 369;W. Lackland Clay 196 Mo. S. Co., ex rel. Jones Crow v. Assn. 414; Chris. v. Women’s Walker, v. Mo. 52 S. City, Kan. 102 Mo. 960; Campbell, Campbell 147 Mo. 48 W. Academy 593; Mo. Dist. Soc. v. 13 S. W. 10 L. A. Hess, 60 459, 8 Acad. 94 Mo. Schmidt Science, ” Clemens, Mo. Vistn. v. by Judge Walker. was majority opinion in the Crutcher ease The sep- sitting in a and two dissented concurred, not judges one Three dissenting opinion held that: by Judge Williams. opinion arate devised legal estate in “By will the the terms (the present did and sixth suit fifth bequeathed paragraphs 7) immediately vested in bequest paragraph becomes involve funds, and the respective statutory custodian enjoyment persons is vested in equitable thereof title beneficial hereafter, to re- statutory now, or are entitled who law become minority funds.” The respective school ceive the benefits from the upon which the was to be opinion trust further that the terms held ‘‘ statutory law State which found in the administered are to be applying and accurately the manner of definitely prescribes Under such conditions the put. uses which such funds administering and the uses to prescribing the method of statutes part are as much a of the will put which such school funds are to be literally if into they copied had been the same.” majority opinion case, Crutcher conclusion weight authority, think, we reached, line, is out upon Parish, etc., supra, relied Yestry what was said in Doan v. legal equitable case, separation the Crutcher as to the opinion as we Doan estates, perfectly proper, but read the is, authority point Crutcher opinion, our on the *9 case, point is it The Doan was in nor in the instant case. ejectment. Bibber, question, the Lucretia E. Yan owner of land buildings thereafter, September and on con- erected thereon Holy veyed Cross, long defendant, Order so as it should corporate use land mentioned in its certificate purposes said “for the if incorporation,” proviso of that it cease to use with a should the the title property corporate purposes, then would revert for such grantor, assigns. grantee, Holy to her Order of heirs and the The Cross, possession property corporate the for its entered into and used April the purposes until when it abandoned use for its cor- porate February Lucretia E. Yan Bibber died testate purposes. conveyance September 25, of 1896. recited the In her she disposition to the will her desire make proviso, and and stated the grantee that the in the deed to property in the event ceased use event, give “I corporate that such and purposes, for and directed Vestry Church, ... the of Ascension devise said land county, Maryland, Parish, Westminster, Carrol to be Ascension purposes as the rector of said shall for such church church or used direct, my may being purpose it and that the said land desire and buildings thereon under the control of rector of shall be the the Church, may Ascension shall be work as he and used for church ’’ for best interest deem the of Ascension Church. grantee in the When the deed to use the the ceased devisee, the provided, property to the deed it surrendered said Vestry plaintiffs the that Parish. It was the contention the trust, void, and that the was “because its ob- devise created a trust because, ascertained, jects ascertained, also even if it are not is a perpetuity.” contended the The defendants “that devise is of a Vestry fee-simple estate, Ascension, Parish trust, only subsequent not a that construction clause buildings by relating to control of land and rector the said attempt ingraft parish upon that is an it fee naked power to the' which fee, per- collateral cut down the law will not ’’ given. by mit be It effect to was held no trust was created by will; Vestry Van Bibber the devise of the Parish of the took for own opinion Ascension the fee use. the course of the obvious that there express court said: “It this will no trust, and, any if any exist, declaration of can be declared must implication upon rest will; derived from and it plaintiffs following is contended words the devise to vestry, viz.: be for such church purposes ‘to used as the rector direct, may being purpose of such church shall and desire buildings that the said shall land thereon be under the control of Church, the rector of Ascension shall be used for such church he work as for the Church’, deem best interest Ascension purposes creates a see, trust indefinite or beneficiaries. Let us then, purposes’ what is meant the ‘church and ‘church work’ which anything is here referred to. If there justify were this will to general Van Bibber thereby conclusion Miss meant or diocesan missions, religious objects of the charitable or which the large in, might ground Christian church at is concerned there holding Vestry that The of the Parish the Ascension of Carroll designed County was not to take the beneficial interest in the prop- erty only designed to it, devised be the administrator beneficiaries; its benefits to indefinite these but intention must analysis deduced some rational substantial will, speculation merely. and not from abstract English uses, Statute of charitable 43 Elizabeth, Chapter *10 4, principles applicable and the law which antedated the statute Mo. al., et Kennard et al. v. Buchanan in Missouri. in force
are State courts of this administer and the 136 S. W. 117, l. c. general principles of statute upon charities public trusts for 543; Louis, Mo. v. St. interpretation. liberal [Chambers with 1150; v. Sappington 168 S. W. Mo. Sandusky Sandusky, v. 32, Mo. W. Historical Soc. Trustees, Fund School Patterson, 459, 8 Jones v. 94 Mo. Academy Science, v. Academy Soc. v. And Mo. Historical 195 S. W. 271 Mo. gift inconsistent “Any said: Science, supra, court education, of science or tends to existing laws, promotive which is mankind, of the condition enlightenment, benefit, or amelioration public convenience, or for knowledge, is useful or diffusion cited, meaning of the and it charity within the authorities is a in the instrument not so denominated charity the less a because none in Mo. Historical Soc. gift.” pointed It is out evidences which equity country, that courts of this Academy Science, supra, prerogative powers, legislative authority, the absence of have England, by such but that an exercised courts as sometimes powers belonging country may similar equity in this exércise as jurisdiction chancery.” general a court of “to its Trustees, 2 Bogert’s 434, page- Trusts and section It is stated concerning English there cases which the was a class of that and that this class held relief must come the crown courts charity” gift merely in which was made “to or “to the were those poor,” without mention of the trust trustee. It is further stated have arisen the United in this text several cases this type problem been faced with the whether States where courts have gift void; or treat supervise to"hold the valid and execution it as eases, nearly stated that all such courts of gifts country appointing held valid a trustee direct have framing gift. for the ing the a scheme administration of the In Quinn (Neb.), appears 189 N. W. the testator Elliott for property a trustee sister devised certain use testator’s death, property and at estate —“shall' for life become her. —real Clay part good fund of to be of the school invested' securities, pur whereof shall interest alone be used property, It was will devised poses.” held that or rather- Clay County remainder, to school fund of it was the of’ the testator that said should be sol'd and intention the- good securities, therefrom proceeds invested in the income to be used benefit fund. the school (Iowa), 125 N. Chapman v. Newell con- there cerned, making bequests proceeded: certain after and devises “All estate, including proceeds the rest and remainder of of' the- payments legacies named, give, sold and after I land above de-
691 per- bequeath absolutely and without reservation vise and subsequent para- In Louisa Iowa.” school fund of manent appointment by a for the graphs, provided the testator residuary Chapman will in the ease was trustee. The clause ground as men- challenged that there was no such fund on the any person cor- was not to or will, devise tioned poration accepting was void. It was conceded capable “ designated a coun- specifically statute not fund as had created a ty fund,” that there permanent school but the court observed was gift is in- firmly rule that a more than established expressing any ambiguity pur- or validated because mistake its describing will, pose, if from the beneficiaries, its light surrounding construed of all the facts circumstances devise, reasonably apparent. resid- the intent of the donor uary Chapman clause involved in the was held case valid. Mayor (N.
In J. 103 Eq.), While v. et al. Atl. a “to devise Newark, good. Klumpert fresh air fund of J.” was held In N. (Iowa), v. 121 a34, poor Voorst, Vrieland N. W. devise to the Netherlands,” Gelderland, was In held valid. Moore’s Heirs v. (Ky.), Dana, 354, Moore’s Devisees 4 29 Am. Dec. the testator empowered his or all executors sell of his estate for the benefit Thomas, of his an son, infant, wife and then and directed his son should have when two-thirds of the estate he twenty-one reached years of age, remaining life, and his wife the third for remainder to ‘‘ son, his provided: and then son Thomas should depart this age, life before he arrives then the at estate devised himto may I desire educating be converted into a poor orphans fund some county (Harrison), to be "by county court, selected who guardians are the such, be confined to such as are not able to educate themselves—that it good do as much way as it can, I the funds shall desire be taken and interest, loaned out at so as perpetual fund, to be a rendered and the only interest to be applied thereby affording to their partial good many a to as tuition — orphans pittance scanty will allow. son, Thomas, shortly died after the death of testator, the heirs at law of the testator claimed the property devised to Thomas contingent on that “the theory devise the use of poor orphans of Harrison void.” The valid, trust was held saying: the court “We strongly opinion are inclined to the that the uncertainty, devise is not by void for if tested the doctrines of law alone, might common enforced equity, court of under general jurisdiction trusts, over and the execution powers con- nected with jurisdiction, beneficial interests. Such upon original bill, charity whether the trust was not, deemed had been es- Ellesmere, tablished the time Lord years at five prior least
692 Baptist [Philadelphia of 43 Elizabeth. statute the enactment 481; Orphan v. Robertson, 3 McCartee Smith and Pet. Association v. Serg. R. Y.), 437; Lex, 9 17 & (N. Cow. Witman Asylum Society Mayor Dublin, 644); General v. (17 Attorney Am. Dec. S.) Bligh College, Wood (N. Dartmouth Redesdale, 1 Lord Co., 518; Attorney Insurance ward, General v. Utica Wheat. Exrs., v. Hart’s 389; Baptist Association Cond. Johns. Ch. super- many might others which cases, Wheat. These Elizabeth, statute a court added, that, independently show *12 donor, trust, equity might defined enforce whenever court, consistently him to enable the or was so described objects law, apply intended. to ascertain and it to rules 2, Bogert’s 434, page Section Yol. Other are cited under eases necessary but do deem it to review other Trustees, we Trusts cited, 1302 of 434, page Section the text In the notes under eases. Crutcher, supra, is referred to and of this the case Robinson “contra and less desirable.” It is it seems to be it is said that case opinion minority Crutcher cor- our conclusion that Reaching the instant case. applicable rectly states law judgment holding below valid the it follows conclusion by testator, Lowmiller, should trust created be affirmed isit so ordered. (cid:127)and opinion by'Bradley, foreging C., in Division
PER CURIAM: The All opinion of Court en Bane. concur. adopted as the One Telegraph Company, v. South- Corporation, District Missouri Telephone Corporation, Union Company, Bell western Light Appellants. Corporation, Power Company, & Electric (2d) 19. Banc, March 1936.
Court en