Sandusky v. Sandusky, 261 Mo. 351

Sandusky v. Sandusky

261 Mo. 351 | Mo. | 1914

ROY, C

This is a proceeding brought by an executor to construe the will under which he is acting as such executor. t

Mary E. Dorsey died September 27,1908. Her will was duly admitted to probate. The third item of the will is as follows:

*356“3. I give to my executor, hereinafter named, the sum of one thousand dollars, in trust, however, for the following purposes, to-wit: To be by him loaned out on unincumbered real estate at not more than five per cent per annum, and the interest, less the necessary costs and charges, to be used by him in keeping in repair the monument erected to the memory of my late husband, John S. Dorsey, deceased, and his two wives, and, also in keeping the lot in said ‘Fairview Cemetery,’ on which said monument stands, in good condition. If at any time there should be an accumulation of interest not needed for the purposes aforesaid amounting to as much as five hundred dollars, then eighty per cent of such interest shall be paid by such trustees to the legatees or beneficiaries named in the residuary clause of 'this, my will, and as in said clause provided. ’ ’

The twelfth item of the will being as follows:

“12. I give, devise and bequeath, absolutely, all the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, to James M. Sandusky, in trust to effectuate the following benevolences and charities, to-wit:

“One-fourth thereof, primarily, for the purchase, construction, furnishing, maintenance and repair of a parsonage for the occupancy of such pastors or ministers of the gospel as may from time to time, in their ministerial capacity, serve the association of Christions in Liberty, Missouri, commonly known as ‘The Presbyterian Church of Liberty, Missouri,’ meaning thereby the congregation now worshiping in the church edifice located at the corner of Main and Mississippi streets in Liberty, Missouri, and for the construction, furnishing, maintenance and repair of a church edifice for said congregation aforesaid, commonly known as ‘The Presbyterian Church of Liberty, Missouri;’ and, secondarily for the general advancement of Christianity, said parsonage shall be known as ‘The Mary Eliz*357abeth Dorsey Parsonage of the Presbyterian Church of Liberty, Missouri;’ said charity may be executed by the trustee herein named, or b)r such trustee or trustees as said congregation may designate to receive said trust fund for said purposes.”

Then followed in said twelfth item separate provisions in favor of the Second Baptist Church, the Methodist Episcopal Church, South, and the Christian Church, all of Liberty, Missouri, in separate clauses, the same in all respects as the clause in favor of the Presbyterian Church, including the words, “and, secondarily, for the general advancement of Christianity.”

The Second Baptist Church is incorporated under the statute for the purpose of holding the title to “such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.”

The other churches named are not incorporated, and are represented by trustees appointed in accordance with the regulations of the several churches. All of those congregations of Christians have church edifices, and all have parsonages, except the Baptists.

There was abundance of evidence that each of those churches can make judicious use of its share of the residuary bequest in the ‘ ‘ construction, furnishing, maintenance and repair” of its church and parsonage. The evidence shows that the net amount of the residuary estate is between twenty and twenty-five thousand dollars. The court by its decree held that the third item of the will is void, and that the $1000 mentioned therein goes under the twelfth item into the residuary estate; and' the decree upheld the twelfth item as a valid disposition of the residue.

*358 Will: Trusts: Gift for Church.

*357I. It is hard to see the grounds of controversy in this case. The disposition of the residuary estate un*358der the twelfth item of the will is clearly within the lines laid down by the decisions of this court. A gift to repair or build a church is a gift to charitable uses. .[St. George’s Church Soc. v. Branch, 120 Mo. 226.] A gift for a parsonage is a charity. [Bishop’s Residence Co. v. Hudson, 91 Mo. 671.] Gifts for a pious or charitable use are favored by the law. [Strother v. .Barrow, 246 Mo. l. c. 250.]

The provision for the “general advancement of Christianity” does not avoid the bequest. A trustee is provided for who shall determine the particulars as to the application of the fund. Id certum est quod cerium reddi potest. [Howe v. Wilson, 91 Mo. 45.]

It is vain to say that the church corporation is not authorized by law to hold title to the trust fund. That fund while it remains such, and before it is expended on the church edifice or parsonage, is in the keeping of the trustee. After any part of it is used in constructing, furnishing, maintaining or repairing the church edifice or parsonage, the corporation will be competent, under the law of its existence, to hold the title to such church edifice and parsonage.

Residuary Estate.

II. The trial court adjudged the third item of the will void. There is no appeal by the executor from that decision. The trial court also adjudged that the $1000 mentioned m that item is a part of the residuary estate disposed of by the twelfth item. That ruling was correct. The bequest of the $1000 under the third item being void, the will is to be construed as though the third item were not in it. In that event the $1000' becomes a part of the residuum.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.