277 Mo. 1 | Mo. | 1919
Lead Opinion
The heirs of Temple B. Robinson, deceased, brought this suit to have the fifth, sixth and seventh clauses of his will construed. These provisions concern the disposition of two-thirds of the - testator’s property. The defendants are the executor of the estate, the judges of the county court, and the treasurer of Monroe County. The judgment of the circuit court
Temple B. Robinson had never married. He died in Monroe Oonnty, in January, 1914. The petition alleges the invalidity of the provisions of . his will mentioned, because of the absence therein of a donee, legatee, or beneficiary,- that said clauses are void for uncertainty, and hence impossible of execution; and that as to two-thirds of the estate thus bequeathed, the donor died intestate, and that said property should pass and descend to his heirs at law who are the plaintiffs.
Omitting the first, second and third clauses of the will, about which there is no controversy, the fourth, fifth, sixth and seventh provisions are as follows:
“4th: The residue of my property of whatsoever hind and wheresoever situate I will and direct shall be divided into three equal parts.
‘ ‘ 5th: One of such third parts I give and bequeath ' •to the capital of the township school fund of T. 54, R. 10 in Monroe County, Missouri.
“6th: One of such third parts I give and bequeath to the capital of the public school fund of Monroe County.-
“7th:. One of such third parts I give and bequeath to the capital of the public school fund of the State of Missouri and I direct my executor to pay over to the lawful custodians of the several public school funds mentioned in this and the two preceding clauses of this will the several shares given to said school funds as aforesaid.”
.It is conceded that the language of these provisions creates direct bequests to the capital of the township school fund of Township 54, Range 10, Monroe County, the capital of the public school fund of Monroe County, and the capital of the public school fund of Missouri, and" would consequently be void, except, upon the theory which forms the basis of the trial court’s judgment, that these bequests create charitable trusts for the advancement of education; and that so construed, the provisions of the will in controversy,
The issue, therefore, is briefly framed and clearly defined; namely, does the language employed by the donor, when liberally construed within the well defined meaning of the words employed, authorize the classification' of these bequests as charitable trusts ?
In the discussion of this question, we need not confine ourselves to the rules in regard to the creation of charities authorized in England, under the Statute of Elizabeth (43 Eliz. ch. 4), or a recondite review of the divergencies from same in this country, except to recognize the general doctrine announced in that statute as a part of our jurisprudence (Lackland v. Walker, 151 Mo. l. c. 242). In so doing, it will suffice to content ourselves with the modern definition of a public charity as “a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, by bringing their minds under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, or by assisting them to establish themselves in life, or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government.” [Jackson v. Phillips, 14 Allen 539; State ex rel. v. Powers, 10 Mo. App. l. c. 265; 6 Cyc. 900 and notes.]
In the creation of a charitable trust, it is essential that there be a separation of the legal estate from the beneficial enjoyment of same (5 R. C. L. 295). This separation must be indicated by the words of. the donor, otherwise the equitable and legal estate will meet in the same person and the trust be extinguished by a merger of the equitable in the legal estate. The rule thus plainly put finds affirmative expression in Doan v. Vestry of Ascension, 103 Md. 662, 115 Am. St. 379, where it is held in effect that there must be a disclosed intention on the part of the donor to separate the legal and equitable estates, otherwise the whole interest will vest in the donee, which, in the absence
The testator’s will defines the capital of the township, the county and the state school funds as the donees. The word capital as used to designate the recipients of these bequests has no significance other than that generally given to it as applied to public or private funds. As applied to the school fund, it means the principal set apart from the general' revenue from which the interest is derived for educational purposes. Neither directly nor by reasonable implication is a donee designated who can take the legal title to the funds bequeathed and thus authorize the appointment of a trustee. The utmost that can be said of these provisions under a liberal interpretation of same, is that it was the purpose of the donor to add money to money.for the benefit of education. The language employed in the will being free from doubt, no room is left for a construction by implication which would insert the names of those clothed by the statute with the general custody of school funds, under the rule that where a trust is expressed the party in whom the legal title is vested will be held to be the trustee, for the reason that there is no such vesting of title of the funds bequeathed in any natural or artificial entity, as is required to create the trust. Hence, it would become necessary, to sustain the same, to write into the will, otherwise clear and unambiguous, the names of the donees who would take the legal title to the funds bequeathed. This, in effect, would result in a making instead of a construing of the will, and even under the ample power given a court of equity to sustain a trust, such a course, in' the presence of the unmistakable
But it is contended that the language employed by tbe testator in tbe 7th clause directing his executor to pay over to the lawful custodians of the public school funds mentioned in the 5th, 6th, and 7th clauses of the will the several shares therein given to said funds, constitutes a' sufficient designation of the donees to characterize the bequests as charitable trusts. This direction, unless we disregard its plain terms, in which is involved a necessary reference to the express provisions of the clauses in controversy, does not sustain this contention.
In conformity with these clauses the direction provides for the turning over of the shares to the custodian named, not those which had been given to them, because none had been given, either in terms or by implication, but those which had been given to the school funds aforesaid. The effect of this provision is to emphasize the designation of the donees as expressed in the clauses themselves, and that it was the purpose of the donor to bequeath these shares of his estate to the school funds themselves and not to the legal custodians of funds of like character. In short, the part of the will under review -provides for a bequest to and not for the funds in question.
As to the power of a county court, within the statute, to act as trustee under a proper state of facts, tiiere is, no question, but such facts do not exist here. [Sec. 3746, R. S. 1909.]
The attempted application of the provisions of Section 3747 to the construction of this will, so far as concerns the bequest to the county school fund, is not authorized, because of the absence of the creation of such a charitable trust by the donor as will permit, within the contemplation of said section, the nam.es of the judges of the county court to be inserted as custodians of the shares bequeathed to the county school fund.
The doctrine of cy pres, or that of approximation, is invoked to sustain the validity of these bequests. We have, in discussing other phases of the matter at issue, adverted to the uniformly liberal construction given to testamentary donations, due to the policy of courts of equity to declare valid, if possible, gifts to charity. It is in the exercise of this general power that the doctrine of cy pres is authorized that the intent of the donor, if found impossible of execution, may, under the order of the court, be carried out as near as possible. [Mott v. Morris, 249 Mo. l. c. 145.] An essential to the application of this doctrine is the ascertainment from the language employed in the donation, as to who was intended to take as trustee. If the taker, although in the instant case in a sense tangible so far as mere money can be so considered, has within the meaning of the law no legal entity, either natural or artificial, then the doctrine of cy pres cannot properly be invoked,, because that cannot be approximated which does not exist; or put differently, with the same effect as to the conclusion reached, in the absence of such a taker as the law authorizes, no trust is created, and absent the creation of a trust, there is no room for the application of the doctrine of cy pres. [Catron v. Scarritt Coll. Ins., 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Crow ex rel. Jones v. Clay Co., 196 Mo. 234; Lackland v. Walker, 151 Mo. 210; Women's
The question here involved is not, as contended by respondent, the failure to name a trustee, as in Schneider v. Kloepple, 270 Mo. 396, or to render more certain the individual who may be reached by the benefit, as in Mott v. Morris, 249 Mo. l. c. 150, Hadley v. Forsee, 203 Mo. l. c. 427, and Barkley v. Donnelly, 112 Mo. l. c. 571. Nor does it concern- the administration of a trust admittedly created, as in Lackland v. Walker, 151 Mo. 210, or render more definite the designation of the cestiá que trust, as in Sappington v. School Fund Trustees, 123 Mo. 32. These authorities, and others of like- nature, are cited to sustain the validity of the clauses in question. It is evident that the matters of which they are determinative fall short of this purpose. The question here confronting us has a deeper significance, in that the will does not, either by express terms or by implication, create such a trust a$ is necessary to sustain the provisions in question. The trust not having been created, no reason exists for the attempted exercise of the power of the trial court to designate a trustee.
It, therefore, follows that the clauses of the will under review must be held inoperative and of no effect. The elimination of these invalid clauses does not interfere with the disposition of the remaining portions of the testator’s estate under the other well defined provisions of his will, and it is upheld as to them. [Wells v. Fuchs, 226 Mo. 97; Shepperd v. Fisher, 206 Mo. 208; Board of Trustees v. May, 201 Mo. 360; Borland on Wills, p. 302.]
As a consequence of this conclusion, the finding of the trial court is reversed and remanded, with directions that a judgment be entered in conformity with the views herein expressed. It is so ordered.
Dissenting Opinion
(dissenting). — Being unable to agree with the learned majority opinion, I desire to state briefly the ground of my dissent.
In my opinion, by the terms of the will, there has been a clear separation of the legal estate from the beneficial enjoyment or equitable estate. By the terms of the will the legal estate in the property devised or bequeathed in paragraphs 5th and 6th (the present suit does not involve the bequest in paragraph 7) becomes immediately vested in the statutory custodian of the respective school funds, and the equitable title or beneficial enjoyment thereof is vested in the persons who by statutory law become now, or are hereafter entitled, to receive the benefits from the respective school funds.
The terms upon, which the trust, thus established, is to be administered, are to be found in the statutory law of the State which definitely and accurately prescribes the manner of applying and the uses to which such funds may be put. Under such conditions the statutes prescribing the method of administering and the uses to which such school funds are to be put are as much a part of the will as if they had been literally copied into the same.
The trust thus created was clearly a charitable one and I am of the opinion that the learned circuit court was correct in so decreeing and that the judgment should be affirmed.
