Powell v. Hatch

100 Mo. 592 | Mo. | 1890

Barclay, J.

The effect of the decree of the trial court was to pronounce null and void that part of the fifth paragraph of the will of Lydia A. Grillett which contained this language, viz. : “And the rest, if there be any, to such charitable purposes as my said trustee may deem best.” This ruling practically declared an intestacy as to the undisposed of estate after payment of the specific legacies, and the costs of administration. The correctness of this ruling is the only point to be determined on this appeal.

The principles governing the execution of powers of appointment to charitable trusts have been so recently the subject of thorough consideration here that we do not feel ourselves called upon to enter on a further discussion of them now. The same rules of law that controlled the case of Howe v. Wilson, 91 Mo. 45, govern the one at bar. The only difference of any consequence between the facts presented in the two cases is that in the earlier one the discretion was to be exercised among the “charitable institutions of St. Louis” while in the present no limitation with respect to locality appears. We do not regard this difference in the facts as affecting, in any wise, the application of the principles established in the former case. .

The decision referred to probably 'escaped the notice of the eminent circuit judge and of the learned counsel in this cause at the time the result was reached in the trial court, or, we doubt not, the occasion for this appeal would not have arisen. That the questions involved would afford a broad field of debate if treated as still open may be conceded, but we are satisfied with the rulings made in our former decision and adhere to them.

It follows that the judgment should be reversed and the cause remanded.

It is so ordered with the assent of all the members of the court, save Brace, J., absent.