Stewart v. Coshow

Decision Date23 December 1911
Citation142 S.W. 283,238 Mo. 662
PartiesC. B. STEWART et al., Appellants, v. J. W. COSHOW et al
CourtMissouri Supreme Court

Appeal from St. Charles Circuit Court -- Hon. James D. Barnett Judge.

Affirmed.

Conran & Corley for appellants.

(1) The will of Alonzo B. Howell creates a trust in perpetuity. The property is to be held in trust forever. Randall on Perpetuities, p. 48; Washburn on Real Prop. (6 Ed.), p. 217; Duke of Norfolk's case, 1 Vern. 164. The rule against perpetuities is firmly established as the law in Missouri, as well as in all the other States of the Union. Bank v Longfellow, 96 Mo.App. 385; Lockridge v Muriner, 109 Mo. 162; Johnson v. Holifield, 79 Ala. 423; 2 Perry on Trusts and Trustees (5 Ed.), sec. 687; 2 Underhill on Wills, 1195. The rule against perpetuities applies to trusts, as well as to other estates, and in the case of a private trust, or a trust for a private use, a perpetual restraint on the power of alienation renders it absolutely void. 2 Perry on Trusts and Trustees (5 Ed.), 302; 1 Perry on Trusts and Trustees (5 Ed.), sec. 95; 2 Id., sec. 732; Schumacker's Estate v. Reel, 61 Mo. 592; Pennoyer v. Wadhams, 20 Ore. 279; Chambers v. St. Louis, 29 Mo. 543. (2) Definition of public charity. "A gift to a general public use which extends to the poor as well as to the rich." Jones v. Williams, Amb. 652. The definition most frequently quoted is by Mr. Justice Grey in Jackson v. Phillip, 14 Allen 556. The Statute of Uses, 43 Elizabeth C. 4, has always been looked to, in America, as furnishing a summary of what uses are to be considered charitable. Bispham's Equity, 119. It is settled that the statute of charitable uses is in force in Missouri. Chalmers v. St. Louis, 29 Mo. 543. While this statute cannot be looked to as the sole test of what is a public charity, it has been held that one of the things accomplished by it was "It established an enumeration, or kind of definition, standard or test, to which all gifts and grants in trust could be brought in order to determine whether they were charitable." 2 Perry on Trusts and Trustees (6 Ed.), sec. 696; Buchanan v. Kennard, 234 Mo. 117. Many objects not therein enumerated have been declared charitable, but they must fall within the "equity" of the statute. Morice v. Bishop of Durham, 10 Vez. 523; Bispham's Principles of Equity, sec. 119. (3) The trust created by the will of Alonzo B. Howell, so far as it relates to the establishing of a cemetery, is not a public charity and is void; insofar as said trust relates to the improving, decorating, adorning and enlarging of said cemetery, it is not a public charity, and is void. A cemetery is not enumerated in the Statute of Uses nor is the improving, decorating, adorning or enlarging of a cemetery. Anderson v. Atcheson, 130 Iowa 744; Dwenger v. Geary, 113 Ind. 106; In re Ralsten's Estate, 1 Ches. Co. Rep. 482; Dexter v. Gardner, 7 Allen, 247; In re Vaughan, 33 Ch. D. 187. It is a charitable use because its purpose is the promotion of religion and morality. Beatty v. Kurtz, 2 Pet. 566; Mannix v. Purcell, 46 Ohio St. 130; Matter of Deanville Cemetery Assn., 66 N.Y. 569; Hopkins v. Grimshaw, 165 U.S. 342; Board of Health v. Van Hoesen, 87 Mich. 533; In re Eureka Basin Co., 96 N.Y. 42; Gilmer v. Lime Point, 18 Cal. 229; Evergreen Cem. Assc. v. Beecher, 53 Com. 551; Hartson v. Elden, 50 N.J.Eq. 522; Donnelly v. Catholic Cem. Assc., 146 Mass. 16. (4) The whole purpose of the trust is to provide for the perpetual care, improvement, decoration, adornment and enlargement of the Howell family burial ground, a private family burial ground, which is not a legal public charity, and is void. Hornberger v. Hornberger, 12 Heisk. 633; Morse v. Natick, 176 Mass. 513; Fite v. Beasley, 12 Lea, 328; Detuilly v. Hartman, 37 N.J.Eq. 347; Pease v. Pattison, 32 Ch. D. 154; Cunnack v. Edwards, 2 Ch. 679; In re Buck, 2 Ch. 727; Lloyd v. Lloyd, 10 Eng. L. & Eq. 139. (5) The trust is so vague and indefinite in its objects and beneficiaries that it cannot be upheld as a charitable trust, and is void. Hadley v. Forsee, 203 Mo. 418; John v. Smith, 91 F. 827; Crerar v. Williams, 145 Ill. 625; Nichols v. Allen, 130 Mass. 211; Donohugh's Appeal, 86 Pa. St. 306; Old South Society v. Croker, 119 Mass. 1; Fay v. House, 136 Cal. 599. (6) The trust created by this will is not a statutory trust, for which property may be given in perpetual restraint of the power of alienation by reason of statutory permission. Morse v. Natick, 176 Mass. 510; Mason v. Library Assc., 237 Ill. 442; Cooley's Const. Lim. (7 Ed.), p. 95; Sedg. on Stat. & Const. Law, 313.

C. W. Wilson for respondents.

(1) The rule against perpetuities has no application in the case at bar. First. Because the rule relates to remoteness in the vesting of titles. No such question is present, because the title vested in the trustees immediately when the property was turned over to them under the order of the probate court and the terms of the will. Gates v. Seibert, 157 Mo. 267; Bank v. Longfellow, 96 Mo.App. 385. Second. Because the gift is for a public charity, and the title having immediately vested in the trustees the rule against perpetuities is inapplicable. Gates v. Seibert, 157 Mo. 267; Bank v. Longfellow, 96 Mo.App. 385. (2) A gift to provide and maintain a public cemetery or a place for the burial for the dead, is a gift for a charitable use, and is plainly recognized as such by the laws of Missouri. The gift in this case, to trustees for the purpose of organizing a cemetery association for the purpose of providing and maintaining a public cemetery, such as is contemplated in our statute, and was in the mind of the testator, is a gift to a charitable use -- for the establishment and maintenance of a public charity. Such institutions are plainly recognized as public charities by the laws of our State. Constitution, art. 2, sec. 8; Constitution, art. 10, sec. 6; R. S. 1909, secs. 3435, 3439; R. S. 1909, chap. 18; Tracy v. Bittle, 213 Mo. 310; Campbell v. Kansas City, 102 Mo. 339. (3) There is nothing in the contention that the trust is too vague and indefinite to be upheld. A degree of indefiniteness is a distinguishing characteristic of a charitable gift always. The object of this charity is amply definite. Chambers v. St. Louis, 29 Mo. 543; Howe v. Wilson, 91 Mo. 45; Powell v. Hatch, 100 Mo. 598.

OPINION

VALLIANT, J.

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.

The plaintiffs, thirty-two in number, say they are the next of kin and heirs at law of the testator, Alonzo B. Howell, deceased; that they are not the only heirs at law of the testator, but there are others who are "very numerous and widely scattered," and the plaintiffs sue for themselves and the other heirs. The petition states that the testator's estate consisted of about 500 acres of land and over $ 7,000 in money The will is copied in the petition and is as follows:

"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 Wm. 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 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 property I believe I put it to better use than to have it...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT