29 Mo. 543 | Mo. | 1860
delivered the opinion of the court.
Bryan Mullanphy died on the 15th of June, 1851, leaving a will, of which here follows a copy:
“ I, Bryan Mullanphy, do make and declare the following to be my last will and testament: One equal undivided third of all my property, real, personal and mixed, I leave to the City of St. Louis, in the state of Missouri, in trust, to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west. I do appoint Felix Costé and Peter G. Camden executors of this, my last will and testament, and of any other will or executory devise that I may leave. All and any such document will be found to be olograph, all in my own handwriting. In testimony whereof witness my hand and seal. Bryan Mullanphy, [seal]
This will was attested lawfully, and was admitted to probate. It will be seen it was without date. The subscribing witnesses testified that they signed it as such in August, 1849. The estate was a large one, consisting of money and lands, a large portion of which was out of the limits of the city. The testator never married, and his sisters, five in number, were his heirs at law. This suit was commenced by petition in partition by the husband of one of the sisters, who were all married, against the remainder of them, and the City of St. Louis, claiming under the will, was made a party. There was a judgment for partition, and the portion of the real estate devised in trust to St. Louis was set
By an agreement between the parties, this cause is to be considered as though the points arising in' it had been presented in a way in which the court could properly take cognizance of them; that this court shall not only examine the only point presented by the record, whether the city could take the land by devise in trust, but also the question whether the devise is such a one as under our laws is valid, it being for the benefit of cestuis que trust who are indefinite and uncertain.
The question whether the city can take the land in trust is a compound one, and involves, first, the inquiry whether, under her charter, she can take the land; and secondly, although she may have the capacity to take it purely as a gratuity or for her own use, yet whether she can take and hold it for the object mentioned in the testator’s will, thereby making herself a trustee in respect to it. We will first consider the question whether the City of St. Louis, being a body corporate, can, under our laws, take lands by devise, leaving for future consideration the result that would follow from its being established that the city could not take the land.
By the first section of the act concerning corporations, (R. C. 1846,) the incidents of all corporations are enumerated, one of which is “ to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” The third section of the same act provides that “ in addition to the powers enumerated in the first section of this article, and to those expressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated and given.” By the charter of St. Louis, passed 3d March, 1851, section two of the first article, it is enacted that the city “ may purchase, receive and hold property, real and personal,
There is nothing in our statute concerning wills which prohibits corporations from taking by devise; so that, as to their capacity to take by devise, they stand on the same ground as natural persons. The section of the statute concerning corporations above cited, in which are enumerated the incidents which result from the creation of a body politic or corporate, must be regarded as a substitute for the incidental powers which by the common law were annexed to every corporation, A corporation can do no act which is not expressly or impliedly authorized by its charter, or by the act under which it is created. The City of St. Louis is authorized to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in her charter. This is by the general law concerning corporations. No amount being fixed by her charter, she can hold as much as shall be necessary for the purposes for which she was created a body corporate. Although it has been held, where a corporation is prohibited from taking by devise and is empowered to take by purchase, the word “ purchase” shall be construed in its vulgar and not its legal sense, which signifies an acquisition by any other mode than by inheritance, yet that principle is not applicable under our law, which does not prohibit devises to corporations.
It is not denied but that the city, under her charter, could take all the lands devised to her within her limits, if the devise had been to her own use, uncoupled with the trust to
We have no statutes of mortmain. The apprehension of any evils resulting from the ownership of lands by corporations has not been evinced by any general legislation. The law of this state regulating banks and. banking institutions has not only omitted the imposition of any restrictions on the power of the banks to acquire real estate, but has exempted them from the provisions of the first article of the act concerning corporations, to which reference has already been made, thereby leaving their powers in regard to this matter as they stood at common law, which gave corporations an
But although there may be no more policy, at this day, in the laws prohibiting corporations from purchasing real estate than in restraining them from diverting their capital to any other unauthorized purpose, yet, if the legislature has forbidden it, we are bound to enforce the prohibition. Availing themselves of this principle, the plaintiffs in error maintain that the city being authorized to purchase such lands as may be necessary for the purposes of the corporation, and the lands outside of her limits not being necessary for such purposes, she can not take them. Now, whatever may be the meaning of the word “necessary” — for it has different significations, meaning sometimes indispensably requisite; at others, needful, requisite, incidental, or conducive to; and it is admitted that there are cases in relation to land held by corporations in which that. word has been made to bear the first of these significations — yet the meaning of that word is not involved in this proceeding. Whether these lands are necessary for the corporation is a question that can only arise in a proceeding instituted by the state against the city for abusing her right to purchase lands. The city had a power to purchase; if that power has been exceeded, then it has been violated, and the city charter may be forfeited in a
The next question in order is, whether the city, even admitting that she can hold the lands outside of her limits for her own use and in her own right, can become a trustee of them for the benefit of others. We are now speaking of the abstract right of corporations to hold property in trust, disconnected with any consideration of the lawfulness of the trust. Whatever may have been thought in ancient times in relation to this question — although a defect of the requisites to create a good trustee, the want of confidence in the person, may then have been deemed sufficient to prevent a corporation from becoming a trustee — yet that quaint reason is
We propose now to consider the question, whether the trust created by the will is such a one as the city in her corporate capacity can accept, admitting that it is of such a
By the charter, the mayor and city cotincil have the power to make such rules, regulations, by-laws and ordinances for flic purpose of maintaining the peace, good government and order of the City of St. Louis, and the trade, commerce and manufactures thereof, as the city council may deem expedient. What repugnance is there in the exercise of powers like these, and the management in trust of a fund “ to furnish relief to poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west ?” Commerce is intimately connected with emigration and draws it
Again, the city has power to make ordinances for her good government. To a large and commercial city emigrants will come as to a point from which, availing themselves of her facilities for transportation, they can diverge in the direction where they contemplate selecting their new homes. Good government on the part of the city would require that she should make some provision for those of that class who are in want and distress. As this is one of the consequences of her commerce, by which she is so much enriched, she must feel herself under obligation to mitigate some of the evils resulting from it. The city is also empowered to establish hospitals and make regulations for their government. A fund for the relief of poor emigrants found in the city may be made subservient to such of them as require the aid of a hospital. The fund, however it may bo invested, would aid the hospital by relieving it from the necessity of retaining its inmates longer than without such fund charity would require them to bo provided for. It is obvious that a trust, such as is contemplated by the will of Mullanphy, and a hospital, would reciprocally aid and assist each other.
We now approach the question most argued at the bar, and which involves the extent of the jurisdiction of the courts of this state' over charitable trusts. ’ Charitable gifts and legacies have been presented to the courts distinguished by a great variety of attending circumstances. There have been charitable trusts in which the trustee was named and capable of taking the subject of the trusts, with the general purpose of the charity designated, while the objects to be ben-
As there are some states in which the statute of 43 Elizabeth, respecting charitable uses, has been repealed, we do not consider that the opinions of the courts of those states, nor of other courts on the subject of the law of charities prevailing in them, should have any great influence in our judgment in relation to this matter. The case of the Trustees of the Philadelphia Baptist Association v. Smith & Robertson, 4 Whea. 1, decided in the Supreme Court of the Uni
The subject of charities is one of some importance ; but as it is a matter entirely within the control of the legislature, we are relieved from the anxiety which might be felt were we conscious that our opinion was beyond the correction of the legislative power. If any evils/should be apprehended from the existence of the law of charities as it is riow understood, they can easily be corrected, or the cause of them be entirely removed, for the future. Our judgment can only affect the charities that have been already created, and their increase at any time may be prohibited.
Charities were not unknown to the ancient common law; and when it is observed that the common law has never prevailed where the Christian religion did not exist, it is not remarkable that we should find that law a patron of charities. Hence from an early age in the history of our jurisprudence we see them, in some form or shape, so recognized in the courts that we can not be easily reconciled to- the doctrine
In maintaining the proposition that the charity created by the will of Mullanphy can be enforced in our courts, we meet with no difficulty in finding cases in support of it. Our embarrassment grows out of the labor of arranging them. We are not of opinion that charities derived their existence from the statute of 48 Elizabeth. That statute was passed to provide remedies for abuses in the management of charities, and not for the purpose of giving validity to them by its own' force.' It referred to them as existing things, and gave an additional remedy to prevent them from being diverted from the objects for which they were created. The preamble to the act, after reciting a number of charities, declares that “ they have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same.” Such language is not very consistent with the idea that charities had no existence previous to its passage. Frauds and breaches of trust are terms that could not be applied to things whose existence was not recognized by law. In the case of the Incorporated Society v. Richards, Drury & Warren, 301, Edw. Sugden, Lord Chancellor of Ireland, and afterwards Lord Chancellor of England, said that the statute did no doubt give an extended power of alienation by a forced construction; but whilst it did so, one can scarcely avoid coming to the conclusion that its great object was to create a new jurisdiction, which, it was
In order to appreciate the force of these opinions, it must be observed that they arose in Ireland, where the common law prevailed, but where the statute of 43 Elizabeth was never introduced. So they are entitled to great weight in the consideration of the question before us, not only as being the judgments of two of the most eminent of the English judges, but from the great similarity of the circumstances under which the question is presented here and in those cases. In England this question can not directly arise since the passage of the act of Elizabeth, though it has sometimes been discussed when it was incidentally involved in determining whether a charity should be controlled by the inherent powers of a court of chancery or under a sign manual of the
Of late years the subject of charities has undergone a great deal of investigation, both in England and the United States; and the result of that investigation has strengthened the opinion that the law of charities did not derive its existence from the statute of 43 Elizabeth, and that there was an inherent jurisdiction in the court of chancery over the subject of charities before the enactment of that statute. The opinion of the Supreme Court of the United States, in the case of the Philadelphia Baptist Association, in which a contrary doctrine was intimated, has not' given satisfaction; and in subsequent cases, occurring in the state courts, it has not been followed. Judge Story, speaking of that case in the subsequent one of Vidal and others v. Girard’s Exec’rs, 2 How. 196, says: “ Very strong additional light has been thrown upon this subject by the recent publications of the commissioners on the public records in England, which contain a curious and very interesting collection of the chancery records in the reign of Queen Elizabeth and in the earlier reigns. Among these are found many cases in which the court of chancery entertained jurisdiction over charities long before the statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before
In the case of Zimmerman v. Anders, 6 Watts & Serg. 219, in the supreme court of Pennsylvania, it was said: “Although the statute of 43 Elizabeth is not in force in this state, it would seem that it is so considered rather on account of the inapplicability of its regulations as to the modes of proceeding than in reference to its- conservative provisions. These, I conceive, have been in force here by common usage and constitutional recognition; and not only these, but the more extensive range of charitable uses, which chancery supported before that statute and beyond it. Of such recognition of parts of a statute, though the statute itself be not in force, we are not without other examples.” In the case of Burr’s Exec’rs v. Smith and others, 7 Verm. 291, Chancellor Williams, in an opinion in which the law of charities is ably reviewed, observed that, from the examination he had been enabled to bestow on the subject, it appeared to him “ that the law of charitable uses is -not founded on any statute, but tliat it existed at common law, the elements of which were derived from the civil law, and the principles of it may be found both in the statutes and in the adjudicated cases long before the reign of Elizabeth.” Chancellor Kent (2 Kent, 287) thus expresses himself in relation to this subject: “ The elements of the doctrine of the English chancery in relation to charitable uses are to be found in the civil law, and it is questionable whether the English system of charities is do be.referred exclusively to the statute of Elizabeth.
The foregoing citation of authorities, as to the views of the English and American judges in regard to the state of the law of charities before the statute of 43 Elizabeth, must suffice. The, list might be greatly increased. In most of the states of the Union where the subject of charities has been discussed, they have been sustained, with some modifications of the law as it was administered in England, and that, too, since the case of the Philadelphia Baptist Association, in which it was thought that, independently of the statute of Elizabeth, trusts for charities were subject to the rules which govern all other trusts.
It is objected to this charity that it is contrary to sound policy; that it would be the means of attracting from abroad those who had no purpose of emigrating, merely for the sake of obtaining the relief to be furnished by the fund; and thus would fill the city with paupers and vagabonds. It will hot be denied that the will creates a charity. It would be an act of charity this day to furnish relief to poor emigrants and travelers in St. Louis on their way, bona fide, to settle in the west. If the charity is carried out according to the
The only remaining question to be considered is whether the trust of this will can be enforced on account of. the uncertainty of those who are to be benefited-by it. The case, as we view it', 'shows that there is a valid devise to a trustee capable of taking the subject of the devise an'd competent to undertake and execute the trust with which the devise is clothed. As the general object of the charity was specific and certain, and not contrary to any positive rule of law, with a competent trustee to execute the charity designated, we do not see on what ground this objection can rest. If, under such circumstances, the uncertainty of the persons to be relieved by a charitable fund could be available to destroy it, few charities could be sustained. If all the recipients of a charity could be designated with certainty at the time of its creation, there would be no necessity for a law for chari
But the answer to the objection of uncertainty is, that by the law, as it stood unaffected by the statute, courts of equity, by virtue of their inherent powers, would execute such trusts and carry them into effect. In the case of Mogridge v. Thackwell, 7 Ves. 86, it was held by Lord Eldon that where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by sign manual; but where the execution is to be by a trustee, with general or some objects pointed out, there the court will take the administration of the trust. This language Story adopts in relation to this subject both in his Equity Jurisprudence, (§ 1190,) and in his Appendix on Trusts to 4 Wheat. 20. It is somewhat vague; and unless the facts of the case in which it was employed are known it may mislead. Certainly that
In coming to the conclusion that this charity should be carried into execution by our courts, we are sustained by the case of Vidal et al. v. Girard’s Exec’rs 2 How.-; and we can not but incline to the opinion that, as this case is viewed by us, there is a great similarity between them.
It can not have escaped the attention of one who has looked into the cases involving the law of charities as it has been administered both here and in England, that a great diversity of opinion exists in relation to it. Whilst most of the American courts maintain that charities existed at common law independently of the statute of Elizabeth, they have expressed their unwillingness to carry it to the length to which the court of chancery in England has done in order
After a long and laborious examination of this case, we feel ourselves constrained to carry into effect the will of the founder of this charity. To turn from the beaten track on this subject and follow cases decided under influences which do not exist here, would be to depart from the course pursued in the administration of the law in other cases. Because the subject is new to us, and never before has undergone an examination in our courts, we are not the less bound to ascertain and declare the law as we find it, discarding all pretensions to a discretionary power to '-admit or reject the law of charities .by reason of any diversity of opinion that may be entertained in regard to the existence of such a law, or any portions of it.
Judgment affirmed;
