238 Mo. 662 | Mo. | 1911
This is a suit in equity, the purpose of which is to have a will decreed to be void because of a certain alleged infirmity appearing on its face. The will purports to give the chief part •of testator’s property, real and personal, to certain persons therein named in trust to establish and maintain a cemetery. The circuit court sustained a demurrer to the petition and, plaintiffs declining to plead further, judgment for defendants was rendered, from which plaintiffs appealed. The whole case for our consideration therefore appears on the face of the petition.
“I, Alonzo B. Howell, of the county of St. Charles, in the State of Missouri, being now advanced in years and of an infirm state of health, and conscious of my liability to sudden death—yet at the same time of sound mind and memory, and desirous of so disposing of my estate, both real, personal and mixed as will most benefit my large circle of relatives and friends, do hereby make, ordain, publish and declare this my last will and testament, hereby revoking all former wills by me made.
“It is my will and desire to be buried in a manner suitable to my situation in life, and I leave the conduct and management of my funeral to my executors hereinafter named and appointed.
“It is my will and desire that all my just debts and the expenses of my funeral 'be paid by my executors as soon as conveniently may be after my demise.
“It is my will and desire that my said executors erect at my grave a monument such as in their judgment may be most suitable and becoming.
“All the rest, residue and remainder of my estate, both real, personal and mixed I give, devise and bequeath to ¥m. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell and John Burton as trustees, and to their successors in office and trust forever, for the purpose of organizing and incorporating themselves into a. cemetery association under the laws of the State of Missouri. Said trustees and their*668 successors to set apart such of my real estate as in their judgment may be necessary, including the old family burial ground where my father and. mother and many of their descendants and relatives are buried, for cemetery purposes, and said trustees and their successors are hereby empowered to make such rules and regulations in reference to said cemetery as in their wisdom and judgment may be just and proper. And I hereby give and grant to said trustees authority and power to use the net income, rents and profits-arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds, and for all services rendered by them or any of them in their capacity as such they are to be paid out of said income, so that no part of the principal of. my estate shall be encroached upon at any time, unless the same be required for'such improvements. In making this disposition of my propr erty I believe I put it to better use than to have it distributed in small parcels to my heirs at law.
“My said trustees and their successors in office are to receive annually reasonable compensation for the care and management of all funds and property in their hands as well as for the care of the cemetery.
“I hereby name and appoint Wm. M. Stewart and John W. Coshow, executors of this will.
“Witness my signature this August 29th, 1896.
“Alonzo B. Howell.
" Codicil.
“Whereas, I, Alonzo B. Howell, of the county of St. Charles and State of Missouri, have by my last will and testament in writing duly executed, bearing date August 29, 1896, given, bequeathed, and devised my entire estate real, personal and mixed (with the exception of reasonable amount for funeral expenses and the erection of a suitable monument at my grave). All the rest and residue of my estate to*669 Wm. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell, and John Burton as trustees, and their successors in office, in trust forever for the purpose of organizing and incorporating themselves into a cem* etery association under the laws of the State of Missouri.
“Now, I, said Alonzo B. Howell, do make this codicil to my said will, and I do hereby revoke said provisions in reference to said cemetery association as a corporation under the laws of the State of Mis-, souri, and also as to Isaac Howell as one of the trustees. And I hereby appoint Wm. M. Stewart, John W. Coshow, Mike Sutton and John Burton as trustees for the care, improvement and maintenance of said cemetery as is directed in my said will, except that they shall not be required to organize as a cemetery association under the laws of the State of Missouri, and I direct that my executor shall as soon as convenient after my decease, pay to said trustees, W. M. Stewart, Mike Sutton and John Burton for their services as said trustees, fifty dollars each, and to John Coshow five hundred dollars for his services as trustee. And I give and bequeath to George ' Sudbrock, who now rents my farm, for having taken care of me in infirmity and continuing the same for the rest of my life, the sum of two hundred dollars to be paid as soon as convenient after my decease.
“And I hereby direct my executor hereinafter appointed (John W. Coshow) to take care of my sis* ter, Mary E. Fisher according to his best judgment and especially to see that she shall not lack the comforts of life.
“And I do hereby appoint John W. Coshow my sole executor of this, my last will and testament, hereby revoking the appointment of Wm. M. Stewart as named in the will aforesaid.
“And I hereby further direct that my executor, John W. Coshow, shall not be required to give as*670 executor-of this my last will and testament any bond, trusting fully to his honesty and faithfulness in said capacity.
“Witness my signature this March 25th, 1808.
“Alonzo B. Howell.”
It was duly executed and attested.
The will was probated, the estate was administered, final settlement made by the executor and 'the property delivered to the trustees, Stewart, Sutton and Coshow; John Burton, named in the will as trustee, died without having qualified as such.
Appellants in their statement of the case make some allegations of facts which are not in the petition, but as we are to consider the case only as on demurrer to the petition those statements will not be noticed.
I. . Respondents make the point that the petition is defective in not stating the degree of relationship the plaintiffs bore to the testator. The petition states that they are “next of kin and heirs at law” of the testator. Respondents say that is a mere legal conclusion and not an issuable fact. To say that they are heirs at law it a legal conclusion, but to say that they are next of kin is hardly a conclusion of law. To say that they are of kin is a statement of fact, but to say “next of kin” is to say of closer kin than-others, which is a conclusion, the correctness of which is not apparent until we know what other kin there were and the degree of relationship. But this objection does not appear to have been made in the trial court. If defendants there had desired to have the plaintiffs make a more specific statement on that point they could have moved to require plaintiffs to make their allegation more definite and certain, or, perhaps a special demurrer would have reached the point, but in the face of a general demurrer the allegation that the plaintiffs are next of kin and heirs at law is sufficient.
(a) We will consider the second proposition first. The only language in the will on which plaintiffs can rely for that proposition is that which authorizes the trustees “to set apart such of my real estate as in their judgment may be necessary, including the old family burying ground where, my father and mother and many of their descendants are buried, for cemetery purposes.” The petition states that the burying ground mentioned in the will was then and is now “a private burying ground, and did not at any time belong to testator, and testator’s trustees could not care .for or manage said burying ground without the consent of the owner thereof; and the same could not be made a part of any cemetery, without the consent of the owner.” Of course the trustees could not tape possession of the family burying ground or assume the care and maintenance of it without the consent of the owner, but that would not defeat the whole scheme. The cemetery to be established was to include the “old family burying ground, ’ ’ but was riot to consist of that alone; the use of the word “including” shows that the cemetery was to be something more; and for its establishment the trustees were to use such part of the testator’s “real estate as in their judgment may be necessary.” There were'500 acres, more or less, and of that area there was to be as much included in the cemetery as the trustees saw fit, and the rest was to be used for
(b) Viewing the will as designed to establish a public cemetery there it nothing in it repugnant to the rule against perpetuities. The rule against perpetuities is designed to forbid the-creation of a future estate that will not vest within the lifetime of a person in being and twenty-one years and ten months thereafter. [Gates v. Siebert, 157 Mo. 254, l. c. 267.] The estate here created vests immediately in the trustees. The rule against perpetuities is not violated because the use to which the land is dedicated may continue in perpetuity, if it were otherwise,- then no
- Appellants in their brief seem to concede that if this is a gift to a public charity it does not violate the rule against perpetuities, 'and that if it is authorized by statute it is valid. That it is authorized by statute is shown by the statutes above quoted, and that it is classed as a public charity, although not so expressly named, is shown by other statutes and by the Constitution. Section 8, article II, of the Constitution, authorizes corporations to be formed to hold title to “church edifices, parsonages and cemeteries.” Section. 6, article X, exempts cemeteries from taxation, and in the same connection exempts property “used exclusively for religious worship, for schools or for purposes purely charitable.” Section 3435, Revised Statutes 1909, authorizes the formation of corporations for certain purposes and therein “any association formed to provide for some good in the order of benevolence, that is useful to the public,” specifying in that connection any “association, congregation, society or church or organization formed for religious purposes, and any association formed to provide or maintain a cemetery;” and after enu
We hold that the devise in question was to a charitable use, and is sanctioned by our law. The learned trial judge had the correct view of the law. The judgment is affirmed.