442 S.W.2d 66 | Mo. | 1969
Lead Opinion
Did the University of Kansas City “cease to exist”, within the meaning of the will of Miss Lena Haag, when, in 1963, by agreement between the Curators of the University of Missouri and the University of Kansas City, which stated that “ * * * it is to the best interests of the parties and of the State of Missouri in order to meet the growing educational needs of the state that University transfer to Curators those of its assets hereinafter described [real estate, buildings, furnishings, equipment, libraries, etc. owned by the University] so that the university now known as The University of Kansas City will become a part of the University of Missouri, to be administered by the Board of Curators of the University of Missouri and financial support provided by the State of Missouri”, the properties of the university were transferred to the Curators of the University of Missouri, who have since established and maintained at Kansas City a university known as University of Missouri at Kansas City ?
All the facts are stipulated, although there is disagreement over the admissibility and relevancy of portions of the stipulation. Miss Haag’s will, dated November 3, 1939 (she died in 1951) contained the following provisions:
“X
“I give and bequeath to the Board of Trustees of The University of Kansas City, of Kansas City, Missouri * * * One Hundred Thousand Dollars * * * which shall be called ‘The Lena Haag Fund for Deserving Students.’
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“As soon as practicable after my death the trustee shall use so much of the income of the trust fund as is practicable to make loans to students attending The University*68 of Kansas City. Such of said loans as are made shall be to such of said students as rank highest among the applicants for such loans from the standpoint of character, scholastic merit and financial need.
⅜ ⅜ ⅜ sj? ⅜ ⅜
“In determining the amount of the fund, both the principal and interest shall be credited to the fund and when the amount of the fund so determined equals Two Hundred Thousand Dollars * * * then any excess over and above said amount shall become a part of the Lena Haag Endowment Fund for the University of Kansas City hereinafter provided for. The remainder of the Lena Haag Fund for Deserving Students shall continue in all respects as theretofore.
“XI
“All the rest, residue and remainder of my estate not hereinafter provided for, I give, devise and bequeath to the Board of Trustees of The University of Kansas City, of Kansas City, Missouri to be known as The Lena Haag Endowment Fund for the University of Kansas City.
******
“No part of the fund or assets creating the trust provided for in Article XI shall at any time be used for the construction of any buildings and the principal of said trust shall at all times be kept intact. The income therefrom shall be used in the sole discretion of the trustees to establish and maintain a teaching chair, or chairs in some department of said University, if needed, preference being given to a chair or chairs of music, without however intending to limit the use of such income to such specific chair or chairs. Each chair so established shall be appropriately designated and referred to as ‘The Lena Haag Chair of Music’ or of other subject as the case may be.
“Said University is requested to refer in its catalogue and other publications issued from time to time to the chair or chairs established with or by virtue of the income from said fund. Any amount of income received by the Trustees not needed from time to time for the purpose of establishing or maintaining such chair or chairs may be used by the Trustees for such purposes of said University as the Trustees may in their sole judgment and discretion deem to be of the greatest advantage to the University, not including the erection of buildings.
* ,* v ,. * * * *
“If The University of Kansas City should cease to exist (an event which I do not anticipate and trust shall never occur) then and in that event both the ‘Lena Haag Fund for Deserving Students’ and the ‘Lena Haag Endowment Fund for The University of Kansas City’ shall thereupon be paid and distributed by the Trustees hereinbe-fore referred to, to the Board of Trustees (or other governing Board occupying a similar position) of Park College of Parkville, Missouri, to be added to the endowment funds of Park College and to be used for such purposes as said endowment funds may be lawfully used and to be known as the ‘Lena Haag Fund for Park College’.
* * * * * *»
It is agreed that Park College is a privately endowed and supported institution, as was U.K.C. and that U.M.K.C. is a state-supported institution.
The parties are also in agreement that evidence relevant and material as to the occurrence of the condition subsequent (“If The University of Kansas City should cease to exist”) is admissible. This must necessarily include the 1963 agreement, as well as what took place then and thereafter as to the continued existence or non-existence of U.K.C. as a university. The parties all take the position there is no ambiguity on the face of the will, particularly in the words “If The University of Kansas City should cease to exist.” However, according to the Restatement of Property (Vol. Ill, § 241, pp. 1189-1190): “* * * [A]ny ascertainment of the meaning of language requires consideration of the atmosphere in which the conveyance orig
“In the case of a deed or will, as in the case of any writing, this process is always necessary * * *.”
See, also, 57 Am.Jur., Wills, § 1041, p. 676, stating: “A moment’s reflection will show that in giving effect to any will, even the simplest and clearest, some extrinsic evidence must be admitted to identify the persons and property referred to in the will and to enable the court to apply the words of the will to the matters to which it relates * *
Therefore, inasmuch as Miss Haag did not exist or make her will in a vacuum, we hold it is proper to consider enough of the stipulated information about the testatrix to give us some general idea of her standpoint, environment and interests, which we discern as follows: Miss Lena Haag was a native Kansas Citian and a life-long resident of the city. She died in 1951 at the age of 87. She was 75 when her will was made in 1939. She was educated in the Kansas City schools and in Moravian College for Women, Bethlehem, Pennsylvania.
Certain provisions of the contract between U.K.C. and the curators must now be outlined.
On or about July 25, 1963, upon the transfer of assets of U.K.C. to the plaintiff curators, one Carleton F. Scofield, who had been President and chief administrative officer of U.K.C. became Chancellor of U.M.K.C. Also, upon such transfer, which occurred during the regularly scheduled summer term, plaintiff curators assumed the employment contracts of all those then employed by U.K.C., in both academic and non-academic positions, and operated during the remainder of the summer term upon generally the same curriculum, plans and schedules established theretofore by defendant university. Plaintiff curators has thereafter operated and maintained U.M.K.C. at substantially the same location and said U.M.K.C. has conducted classes, conferred degrees, carried out research and performed other educational functions.
The Haag funds were not transferred to the curators, pending determination of this litigation begun February 24, 1965. The trial court concluded “ * * * that the educational institution named * * * continues to exist within the meaning of Miss Haag’s will, and plaintiff, The Curators of the University of' Missouri, being now the governing body of said educational institution, is the trustee as provided by said will.”
Park College contends that the educational institution which Miss Haag knew and had in mind when she wrote her will “has definitely ceased to exist”. On the other hand, plaintiff curators, supported by U.K.C., contends the educational institution which Miss Haag intended to benefit continues to exist within the meaning of her will, “that the purpose of her gifts was to help students and to advance learning, both to be done in Kansas City” and that the trial court was right in concluding that “Her actions during her lifetime and the wording of her will clearly indicate that her intent was in the university continuing as an educational institution rather than in its particular corporate name or whether it received its financial support from public or private funds. In essence, the university as she knew it continued to exist after the transfer the same as before * *
We hold that under the stipulated facts as to the agreement between U.K.C. and the plaintiff curators and what happened thereafter, the University of Kansas City ceased to exist as the words were used in Miss Haag’s will, and accordingly under the further terms of the will the two funds should go to the Trustees of Park College.
Miss Haag was an educated woman with wide interests and the means to do what she wanted. Her will stated that she had the counsel and advice of her attorney in its preparation. The language is direct, not artful, and there is no reason to ascribe to the words used other than their ordinary, commonly understood meaning. So examined, the word “cease”, here used as an intransitive verb, as pertaining to an existing institution, situation or state of affairs, means to discontinue, terminate, stop, to come to an end, be at an end. “Stop is the everyday, cease, the more literary or poetical word.” The word “exist”, in the sense here used of having place in the domain of reality, having objective meaning, means “to have actual or real being * * * to continue to be: maintaining being.” While under the terms of the agreement, U.K.C. agreed to continue its corporate existence, this was only a paper existence so far as operating a university (which is defined as “An institution organized for teaching and study in the higher branches of learning and empowered to confer degrees in special departments, as theology, law, medicine and the
The fact that another university took over in the place of U.K.C. has no bearing on the issue before us in view of the express language of Article XI as to what should happen if U.K.C. ceased to exist. What plaintiff and respondent university are asking is that we rewrite Miss Haag’s will so that the part under examination would read, “If the University of Kansas City should cease to exist and if no other university, public or private, takes its place, then”, etc. Miss Haag provided in Article X that the Board of Trustees of U.K.C. were to use the income of The Lena Haag Fund for Deserving Students “ * * * to make loans to students attending The University of Kansas City * * * ”, and that any excess of the fund above $200,000 was to “ * * * become a part of the Lena Haag Endowment Fund for the University of Kansas City * * She then specified in Article XI that the Lena Haag Endowment Fund for U.K.C. was to be used “ * * * to establish and maintain a teaching chair, or chairs in some department of said University * * The two funds are specifically stated to be for particular purposes of use at the University of Kansas City by its students. Such was the dominant purpose of the gift (she was trying to help U.K.C. and its students just as she had earlier helped with her donation of the Liberal Arts building when U.K.C. was struggling for existence) and this distinguishes the present situation from the cases relied on by respondents where the essence of the bequest was that the gift should be applied to general educational or charitable purposes which could be carried out by the successor institution.
The language then used by Miss Haag in the latter part of Article XI — namely, “If The University of Kansas City should cease to exist (an event which I do not anticipate and trust shall never occur) then
What the trial court has done here is to make an uncalled for application of cy pres, the doctrine that “ * * * equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible * * * ”, Bogart, Trusts and Trustees, 2d Ed., § 431, P. 390. We say “uncalled for application”, because of the well-established rule that “ * * * If the testator makes an express provision as to the disposition of the property in case the particular purpose fails, that provision is controlling * * * ”, Scott on Trusts, Third Ed., § 399.2, p. 3095. In such a situation the doctrine of cy pres is inapplicable. That is what happened here. Miss Haag provided what should be done with the funds if U.K.C. ceased to exist. There is no basis for the action of the trial court in applying her charity to providing scholarship loans for students and establishing teaching chairs at a state-supported university, a purpose which she did not provide for in her will, and which runs counter to the alternative she did provide.
We do not agree with the contention of the respondents that the fact Miss Haag’s bequest was made to the Board of Trustees of U.K.C. as trustee and that the will defined “trustee” as the Board of Trustees governing U.K.C. and the “successors of said Board occupying the same relative position with respect to said University”, changes what is required to be done with the funds in event U.K.C. “should cease to exist”. In that event the will provides the funds shall be paid and distributed “by the Trustees hereinbefore referred to” (which would include the plaintiff curators under respondents’ contention) “to the Board of Trustees (or other governing Board occupying a similar position) of Park College”. Even if the plaintiff curators were the successor trustee to the Haag funds upon the transfer of U.K.C., it does not change what happens to the funds if U.K.C. ceases to exist, which respondents agree is the principal issue before the court.
Both sides claim support from the fact that in a codicil made December 20, 1949, which covered a number of other matters, Miss Haag revoked a bequest of $1,000 to The Kansas City Cradle, made in her original will of November 3, 1939, “inasmuch as said institution has gone out of existence.” The original corporate purposes of the Cradle, organized by pro forma decree in 1915, were to promote the placing-out method of providing for homeless children in select family homes and to own
There is no showing as to how much Miss Haag actually knew about the above events and the details of the changes in corporate purposes. Indeed, however, the problem of homeless children continued to exist, as well as their hospital care (which was also one of the concerns of the Cradle) and if as respondents’ contend, the key to whether Miss Haag considered an institution continued to exist depended on whether the purposes behind her gift could be carried out by some other institution, rather than on whether the institution which she knew, trusted, and desired to help in its work continued to exist, she could easily have substituted St. Luke’s Hospital for the Cradle in her will, which of course, she did not do. Further, the Kansas City Cradle matter all occurred during Miss Haag’s life and she acted upon it, which is not the case here, and we are not convinced the Cradle matter is sufficiently close on the facts to be decisive one way or the other.
The decree of the trial court is reversed and the cause remanded with directions to enter a decree ordering the funds paid to the Trustees of Park College.
The foregoing opinion by SEILER, J., written in Div. One, is adopted as the opinion of the Court en Banc. The judgment is reversed and remanded with directions.
. For the most part, the plaintiff Curators of the University of Missouri will be referred to herein as plaintiff or curators; the University of Kansas City will be referred to as U.K.O. or university, and the University of Missouri at Kansas City will be referred to as U.M.K.C.
. A long-established private school, then for women only, see American Universities and Colleges, Cartter, Ninth Ed., Council on Education, Washington, D.C., 1964, pp. 993-994; Uovejoy’s College Guide, 1968 ed., p. 348.
. The original agreement was made March 9, 1963 and there was a supplemental contract entered into July 23, 1963.
. These definitions are from Webster’s New International Dictionary, Third Edition; Webster’s New International Dictionary, Second Edition, Unabridged; The Oxford English Dictionary, and The Random House Dictionary of the English Language, Unabridged Edition.
Dissenting Opinion
(dissenting).
I cannot agree with the holding of the majority opinion that the University of Kansas City has ceased to exist within the meaning of that term as used in the will of Miss Lena Haag.
This is a charitable trust and the evidence to establish abandonment or forfeiture of a charitable use created by will or deed must be clear and conclusive. Strother v. Barrow, 246 Mo. 241, 151 S.W. 960, 963 [4]. The interpretation placed on the trust language by the principal opinion unduly restricts and is out of harmony with the purpose of the testatrix as disclosed by the facts and circumstances in evidence.
There are no Missouri1 cases which have interpreted the term “cease to exist” as applied to a charitable institution, but cases
In my opinion the dominant intention of Miss Haag was to benefit a university in Kansas City and such purpose has not been violated by the institution being taken over and managed by the Board of Curators of the University of Missouri. I am in accord with the views expressed in the opinion written in this case by Welborn, C., but not adopted which in part states:
“In our opinion, that was not such an occurrence as was contemplated would cause the gift over to become effective. Classes continued be to conducted at substantially the same location (presumably including Haag Hall), degrees were conferred and the vital functions of a university continued. There was no cessation of the existence of a university. Unquestionably the name of the institution was not the same nor was it governed by the same governing body. Nor was its source of financial support the same. However, such changes were not shown to have been what the testatrix wished to guard against by the condition subsequent. There continued to exist a university at the home city of the testatrix, attended by students who would benefit from the financial assistance Miss Haag had provided. The record does not show the endowment fund income had, in fact, been used. However, in 1963, the University of Kansas City and thereafter the University of Missouri at Kansas City had a School of Music (see Official Manual, State of Missouri, 1967-1968, p. 462) so that Miss Haag’s preference for the endowment of a chair of music could be given effect. In other words, Miss Haag’s fundamental purpose of furthering the cause of higher education in Kansas City could still be accomplished by and on behalf of the same people who would have been involved had there not been a transfer from the University of Kansas City to the curators. Surely, there may now be more students interested in seeking loans from the fund which Miss Haag established, inasmuch as there has been some change in admission policies and a sizable increase in enrollment (University of Kansas City had 1987 full-time students for the fall semester beginning in 1962. University of Missouri at Kansas City had 3739 for the fall semester beginning in 1965.). We find no reason to suppose that Miss Haag would have looked with disfavor upon such an extension of the services of the university. University admission policies do change. The stipulation here sets out the policies of the University of Kansas City for 1959-1960, 1960-1961, 1962-1963 and 1963. We don’t know what the policies were in 1939, but it would have been unusual for them to have remained unchanged since the date of Miss Haag’s will. Any donor of funds to assist students and provide chairs of learning must realize that admission standards of the institution attended by the students will not remain constant. Student-faculty ratios likewise fluctuate. A decreasing ratio is not, however, evidence of cessation of existence as an institution of higher education. Nor is an enlargement of the physical plant.”
For these reasons I respectfully dissent.
