*1 OF FORT al. v. WORTH CITY BURNETT et al.
No. 13814. Appeals Texas. Fort
Court of Civil
Worth. 18, 1938.
Feb.
Rehearing April Denied Questions certified to an-
swered,
using following language; 'the By All “Know Men These Presents: passed Having age score of three ten, will advantages sensible community confer on the desirous contributing something fortune out yet I am while alive to welfare and happiness among whom I expression dwell visible love and affection bore to two chil- and-Burk, I, dren, „in lifetime, Anne B. S. County, hereby give Tarrant *2 children, my memory the Burk, Anne and Worth, Municipal of two City Fort unto of me, 1, as long gone from and under the duly incorporated Corporation, Park, the donor and the father Texas, purpose as for the laws the State al- permitted shall and said be place of creating park and park, at lowed to the entrance of said City. erect in the heart thereof, or or within confines either parcels lots, or tracts “All those certain both, designed express a monument within being lying and situated of land children, with such father’s love of his Worth, City Fort corporate limits of the n may inscription I suitable as choose particu- County, and more Tarrant larly place thereon. follows, (Here follows the towit: as so, convey- “(6) binding myself Without to do parcels of land description of nine elect, any I I reserve the at time ed). to make in and about such nevertheless, gift is “Provided, that this and said Park as consider suitable and conditions following structures, appropriate and build such of which stipulations, due observance houses, monuments and memorials therein validity continuance and is essential as, my judgment, may serve to enhance n ofthis grant. beauty City and and usefulness taking “The said Fort Worth in general public. in accepting under this instrument and If, meantime, acquir- “(7) since I gift agrees: property, ed said taxes and assessments “(1) property That said shall forthwith thereon, have by same shall be borne accrued dedicated, apart, be set and main- treated the said of Fort Worth. governing tained of said City of part said “Failure on the 'City breathing-place keep gift, the donee of this proper regu- the use of the any and observe one of the terms or condi- control, where lations me gift, tions annexed to this shall entitle rich, may place assemble as a any my time after assigns, heirs or or particularly recreation and relief breach, gift declare omission or to time shall against summers, and as (and lapse forfeit spot resting for tired mothers or condi- sidered waiver of terms children. said of Fort To that end thereupon prem- said tions) and then property Worth shall never use said my revert to or ises and shall me premises than as assigns. or heirs place park meeting whereof, “In I have hereunto witness other use thereof shall work a forfeiture name, of Fort subscribed gift. Worth, Texas, day June, A. this 21st “(2) any part That said nor D. thereof, commercialized, shall never be “[Signed.] B. Burnett.” S. sold, exchanged encumbered said City. tendered, deed was When such same, fol- accepted and the commissioners “(3) provide That said shall annual- ly lowing appears the minutes a sufficient fund for the maintenance and June keep care of said in a 1919: same trim tidy condition with such ornament Burnett, by Burk gift, tendered “Deed of tree, flower, shrub and as will make at- fully of land described of certain tracts eye tractive to the and conducive to park purposes to- in said set out health, happiness good morals stipulations gov- gether conditions community. unanimously accepted erning gift said was stipulations to. agreed and conditions “(4) policed That said will be by Captain Following remarks depredation as to shield it from and vanda- donor, members Commis- prevent lism and so disorder mis- splendid gift thanks sion vote behavior therein and thereabout by the Commission. was extended make it safe and accepting resort of children. “Proper women said ordinance n unanimously adopted.” style “(5) That shall name said referred has (by ordinance which name it shall ever located) estab- but its contents were Park,’ been known) Burnett Memorial ‘The court. perpetuate before the trial lished glory not for own vain but to years happening and from thus using Within two after the events, alleged his a foregoing Burnett made manner the will, to be a manifest diversion lan- following in which we find defendants. guage: “Inasmuch as I have heretofore notice, On hearing before conveyed municipality *3 court, judgment granting was rendered the very heart of property certain real in the temporary injunction prayed for, and the vicinity district, the in the residential appeal. defendants Streets, City, Lamar and Burnett in said The sole that us interests people public park, be used may where the as'a is, What was the grantor, intention of the enjoy assemble and recreation and re- Burnett, expressed deed, his in unless day, spite from the and burden of the can be said that such am instrument is park may improved in order this that biguous ? .comely eye, hereby and made to the I do Fifty will and direct that sum the We do any ambiguity not believe there is apart ($50,000.00) Thousand Dollars set deed, in the and so hold. foregoing out of estate and used for the outset, At the let it be remembered that purpose end, hereby I do select the attempting Worth is not my daughter-in-law, Burnett, and Ollie property to deal with that has con- been attorney friend, Sidney Samuels, to L. city public use, demned nor performance of this act trustee property with given that has been bequest, purpose, for that the title to in city unconditionally. hereby bequeathed the fund is vested . Here city we have taking title the applied manner them be used and and through a expressly deed which provides way directed, leaving hereinabove for named conditions on and limitations employment of discretion the the validity which the grant of the rests. adapted bring purpose means best this about.” city was under obligation no money sum and accept thus mentioned grant the imposed with the condi city was the cer- limitations, devised to make tions and could have refus improvements prop- park tain in on grant. ed the having expressly accept But death, erty, after Mr. Burnett’s in and ed it with stipulations” its “conditions probate. will was admitted to “agreed thereto,” having and ignore regardless it cannot now them, or avoid them. is bound used, The lands in have been that, light of the fact in accepted by city, since the deed was year 1938, acceptance conditional solely public park. as a appear in 1919 wise, to have un been days, city the last few coun- Within regardless of the fact further city (which city, of said cil is home-rule now, that the or at some future operating under coun- creating a charter time, find a far better use acting cil-manager government), form of given that for which than it was nineteen the members board years ago. city, park board of such determined to erect language If the in Mr. Burnett’s public library, upon said plain- deed ly the conditions found therein planned remove and employ exclude the of the portion improvements placed major property conveyed by Mr. devise, the same with in on Mr. Burnett’s thereof, even reasonable amount make room for the order to build- public library thereon, erection of a then ing. judgment of the trial court should be this intention made When known to approved. public generally, the heirs of Mr. Bur- paragraph In the first nett, joined trustees the estate of given states of Fort Worth the lands are Burnett, brought the deceased suit in the the creating “for the county against court of Tarrant district in city, mayor councilmen, said City.” heart the members of boards description After asking city, temporary injunc- veyed, the instrument contains the follow- tion to restrain the defendants from remov- ing language: destroying ing and above mentioned, “Provided, nevertheless, to restrain them from build- that this park property, ing following said conditions and ordinary public park. is of A which certain re- stipulations due observance type of validity stricted recreation is found read- continuance essential to the pleasure derived, books for the thus grant. this restricted for “the recreation is not taking “The rich,” many because accepting and in this instrument under can, “poor” who are obtain such recrea- gift, agrees: tion as is thus afforded the educated forthwith property shall That said “(1) acquired whom it privilege. falls anas We main- dedicated, apart, treated he set study not believe that the of books is of said governing tained sense a recreation. Rather do we be- breathing-place park and lieve that such work. have so found regu- the use homes, school, init in our call- *4 poor, control, where the lations and n ' ings. . of rich, place a assemble as with the library resting A “a is not erected as relief particularly for recreation and spot.” No such idea entered the mind ever summers, aas and against the of our heat any of one who for has established one their resting spot mothers for tired public private or either use. City of Fort To that end said children. and shall never use said assuredly public library a place Most nois a any purpose than as premises for other people may in which the assemble “for re- any other .publicpark meeting place and and against lief the heat of our summers” and work a forfeiture use thereof shall spot it cannot resting “as a gift.” tired mothers their children.” apart, dedi- use of words The “set prattle laughter and of children at * * * cated, treated and maintained play is more beautiful of than the-tinkle public park breathing-place for the a and silver, gold and and much de- more proper regulations use of the under ; library public playground is no sired control, poor, with the and- where the -alike laughter prattle tbieir and and rich, may place assemble as a recreation' of would decided nuisance to one become a against particularly and for relief purposes who uses for the summers, resting spot for and as a which is it created. children,” not tired mothers with their paragraphs In the third fourth any only using excludes the idea of ever deed, obligated provide an- is public part of the as a site for a nually park, sufficient to maintain fund us, appears but such use “keep tidy same in condition trim very -language employed by grantor, the wholly tree, with such ornament shrub and expressed pur- inconsistent with the eye flower, as will make it attractive to the pose of the donor. health, happiness conducive to place breathing “A community,” po- and to good morals * ** where the alike with the depre- it from so as "to shield lice rich, may place assemble as a prevent and so as to and vandalism dation particularly against for relief the heat therein and there- disorder and misbehavior summers, resting spot of our and as a thereby proper it a make about and safe children,” with their tired mothers indi- place resort of women and children.” for the open park. an intention create cates - building cannot stand on the library A words, reading plots these we see When trees spot where ornamental same trees, benches, shade grass, and shrubs grow. and flowers These make shrubs eye please flowers to add to the beautiful, resting spots more park more “place attractiveness of recreation” restful, public park more use as a and its “resting spot for tired mothers with desirable. children.” their police protec- need of no more is There Assuredly, library is a collection depre- public “from to shield a tion dation study, be used for or read for books pleasure. prevent as to so and vandalism therein and there- and misbehavior disorder thereby it a safe and make Mr. Burnett’s deed that he discloses about children,” women “place .resort the words recreation” in sense; police protec- for such ordinary is need thinking that was there he than private or build- other -place play where children could tion city. enjoy the boundaries rest and the comforts within could others We find En- that the New International ications made individuals from those cyclopaedia say defining a has public. The former are con- library: generally is strictly “It held that the li- strued according terms less, brary (1) grant, has store- three functions: while in the latter cases knowledge; (2) house books and strict construction adopted.” research; laboratory study (3) as denying In affording sane recreation.” right to erect a paragraph In 5 of the the court language: uses this “In the case conveyed plain made it the lands under consideration the dedication was made- him named and forever known as should be private specific individual for a pub- Park,” pur- Memorial for the “The Burnett lic use. accepted pose perpetuating the memories his city in accordance with the terms passed long son had since daughter, who devise; is, that it should be forever- erect, away, reserved he a public park. clear, used as or grounds, the entrance within the either fore, -that it was never intended the de- both, express the love that monument visor that it should be used for departed he bore these children. deyised purp'ose. While ain sense was expressly binding Without himself to enjoyment for the general,, *5 so, right Burnett reserved the “to make Mr. equally it is manifest that it was to be en- improvements in Park and about said joyed only as a in and not some may appropriate as I consider suitable way equally enjoyable. It is doubt- houses, structures, and to build such monu- ful if it can be said that one who declares- as, therein in ments memorials perpetuate by to a public his name gift judgment, may beauty serve to enhance its by puerile is actuated a motive. There is- general to the and the usefulness in the human heart the desire to be remem- public.” only bered not as man’ high character generous but as spirited language The -thus used the idea citi- excludes zen, city willing to the happiness contribute to right of the the to build struc- may making his fellow men. ture, houses, monuments, It be that in or memorials that question the in devise provided Lathapi the donor has not for. Mr. was ac- by rate, tuated such motive. At he created Burnett has a memorial right had the to associate the with his perpetuate departed the memories of his impose own. gift any name on the the Forth Worth can- contrary condition not unreasonable library permit not erect a To thereon. it land, policy. The use of city repudiate to do so is to allow fore, public library site would by the trust that was created Mr. Burnett’s only purpose, not defeat his but the monu- 'deed; a city accepted trust which himself, ment which he intended for even- to hold forever contracted sacred. sight by if not lost use its for another Kentucky City Hopkins case of purpose, would at least have to be shared al., Ky. 777, ville al. et v. et 156 162 Jarrett with another. We therefore conclude that 85, 86, L.R.A.,N.S., 465, S.W. SO the author- in pub- the use of the land for a length. ities are at reviewed The purposes- lic is inconsistent with the by city in was devised one to said and terms of the devise and amounts to a Latham, will, and his describing diversion.” property, recites: upon “This devise is quoted The from case has been followed dition that said lot shall be used forever as of times. public park, cited number We believe- named, and that the * * * pronouncements Park,’ are sound. give, ‘Peace devise and bequeath city Hopkinsville to the seems idle us contend that sum ten ($10,000.00) thousand dollars only certain fraction of “The Burnett prepare beautify this lot warehouse will be Memorial Park” the erec park purposes.” public library. present' tion If city undertook to city officers use the fraction that is. public erect on this purpose, now needed when the denied. city growth larger of-the demands a In commenting the difference be could future officers make use of by tween dedications made part grounds individuals and all fractional by public, opinion those made library building, thus, practical states: all “A placed different construction is purposes, ded- intents and use-
441
contentions,
support appellants’
applied
by Mr.
dedicated
land was
to which the
bar, and,
they
opinion,
in our
part
the lands
case
We hold that
Burnett.
easily distinguishable
are
the author-
from
granted
Mr. Burnett
support
principles
ities that
involved
the erection
City of Fort Worth
thereon,
the the instant case.
aof
prayer
granting
court did not err
trial
is af-
judgment
court
trial
restraining
injunction
temporary
for a
firmed.
pres-
destroying the
removing
from
Rehearing.
On Motion for
pub-
erecting a
and from
ent
library thereon.
lic
Immediately upon
judgment
rendition
amply supported
the follow-
are
affirming,
judgment
court
authorities,
one from
in addition to
court,
request
appellants
trial
fil-
at our
quoted:
O’Neal v.
which we
cause, and
rehearing
ed motion
far
Sherman,
31,
182,
Am.
Tex.
14 S.W.
19
77
immediately
we
certified
case to
743;
Allison,
Tex.
128
St.Rep.
v.
Griffith
Court of the state of
74;
86,
Springs Town-
Roaring
96 S.W.2d
ques-
which certificate we submitted two
Co.,
Telephone
109 Tex.
site Co. v. Paducah
tions, as follows:
147;
452,
Houston v.
212
S.W.
(1).
from
Is
S. B.
718;
264,
Scanlan, 120 Tex.
37 S.W.2d
ambiguous, so
of Forth Worth
Society
Magnolia
v.
Ladies’ Benevolent
parol testimony
explain
to let in
it and
812;
Co., Tex.Com.App., 288
Cemetery
S.W.
?
construing
aid
159;
Brass,
Wolf v.
72 Tex.
S.W.
ambiguous,
(2). If
deed is
then
690;
Taylor
al.,
County
Harris
58 Tex.
v.
forbid,
by express
do its terms
words or
Clements,
County
Lamar
v.
49 Tex.
implication,
clear
mainte-
erection and
349;
Paris,
Tex.
Clement v.
of a
nance
of Fort Worth
*6
672;
200, 204,
v. Thom
175 S.W.
Anderson
on the land embraced
as,
512,
573;
166 La.
117
Williams v.
So.
said Burnett
Park?
Memorial
Gallatin,
248,
121, 18
128 N.E.
229 N.Y.
18th,
1938, in
A. D.
On March
Baker, Com’r,
1238;
A.L.R.
Collier
al. v.
et
Ap-
opinion
by the Commission of
rendered
1085;
571,
Beth
160.Tenn.
27 S.W.2d
by
adopted
Supreme
peals
Court
Moses, Com’r,
Hospital
275
Israel
Ass’n v.
220,
114
the first
S.W.2d
838;
209,
Lyons
Warren v.
N.Y.
9 N.E.2d
“No,”
was answered
and the sec-
certified
Ward,
351; City
City,
Chicago
22
v.
Iowa
“Yes.”
ond
was answered
849,
392,
927, 38 L.R.A.
169
48 N.E.
Ill.
opinion
specially
185;
original
we
cited
McIntyre
In the
Am.St.Rep.
61
v. Board
237;
quoted from
et
Com’rs,
78,
Colo.App.
61 P.
Melin
15
al.,
777,
Ky.
162
Dist.,
156
S.W.
al. v.
Community Consolidated School
v.
Jarrett
L.R.A.,N.S.,
85,
50
considered
13;
376,
Sharp
v.
312 Ill.
144 N.E.
and,
authority,
764;
opinion
leading
in that case a
Guthrie, Okl.Sup.,
145 P.
of Mo-
time, simply
pressed
stated the
being
Greene,
475,
911,
252
N.E.
37
line v.
Ill.
96
had been followed and
fact that such case
L.R.A.,N.S., 104.
times.
a number of
We now desire
cited
by
patriotic
Moved
desire to
see
specifically
opinion
that
to show
litigation disposed
speedily,
we
ex-
Kentucky
by
Supreme
approved
Court of
every courtesy
appellants
tended
Hospital League v.
in Woman’s
have advanced the cause sooner than we
159,
Paducah,
604,
Ky.
223 S.W.
Mas-
188
have ever advanced
other case before
692,
Green,
Ky.
Bowling
206
sey City of
v.
theory
this court. We have done this on the
348,
Covington
v.
268 S.W.
175,000
rights
that
of citizens of
Co.,
Ky.
Light, Heat & Power
243
Union
of Forth Worth are involved.
580; by
appellate
591,
court
49 S.W.2d
things,
nature of
it has been
in Hall
Fairchild-Gilmore-
v.
California
a serious task
review
record and the
649;
615,
Co.,
Cal.App.
66
227 P.
Wilton
by
many
presented
ar-
in order to
Supreme Court
Tennessee
part,
rive at a definite conclusion on our
v.
of Park Commissioners
Board
compelled
forego
and we have been
694;
Nashville,
612,
by
185
134 Tenn.
S.W.
usual
privilege
distinguishing,
Michigan in Board
Court of
opinion,
the authorities relied
Gilleland,
276,
Mich.
of Education v.
by
losing litigant.
L.R.A.1916E, 468;
609,
by
157 N.W.
say,
Appeals New York in Wil-
Suffice it to
that we do not consider
248,
Gallatin,
appellants
that
229 N.Y.
128 N.E.
the authorities cited
liams v.
1238, Campbell
121,
v. Town of
18 A.L.R.
134, 281
Hamburg, 156 Misc.
N.Y.S.
Moses,
Hospital
Israel
Ass’n v.
and Beth
838;
275 N.Y.
9 N.E.2d
v.
Co.
federal court in Southern Pacific
D.C.,
Reno,
premises. trial court maintained its order such acts joined the status finally quo case could be until the affirmed the trial court. We determined judgment. in the motion The issue raised trial before
rehearing was raised court, not before us. therefore rehearing is overruled.
The motion *7 COLLINS et ux.
WENTWORTH v.
No. 13684. Appeals of Texas. Civil Worth.
March 1938.
Rehearing April 1, Denied