Acad. of the Visitation v. Clemens

• Decision Date: 31 March 1872
• Citation: 50 Mo. 167
• Parties: ACADEMY OF THE VISITATION, Defendant in Error, v. JAMES B. CLEMENS et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

50 Mo. 167

ACADEMY OF THE VISITATION, Defendant in Error,

v.JAMES B. CLEMENS et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to St. Louis Circuit Court.

T. T. Gantt, for plaintiffs in error.

I. The petition showed no equity in the plaintiffs to have the legal or equitable title of defendants divested out of them in favor of plaintiff.

II. The petition leaves it doubtful whether its object is not to call on defendants to say what they think of the proposed action of plaintiff, and to say beforehand what they will do about it.

III. The petition calls directly on a court of equitable jurisdiction to commit an act of spoliation and aid a trustee to commit a breach of trust by appropriating and wasting the trust fund.

IV. The doctrine of cy-pres cannot be applied here. This is not a case where, the actual and precise performance of the condition being impossible, a court of equity is prayed to prevent a forfeiture by permitting a substantial performance. There is no impossibility at all in doing what was the condition of this devise. Nothing hinders the establishment for all time on the land devised. Such a house is there now. To keep it there may be onerous, but it is an affront to common sense to call it impossible. When the trustee seriously asks the court to assist him in disregarding the fundamental provision, to permit him to sell the land on which the establishment was to remain forever, and to appropriate the proceeds to a scheme which, however meritorious, is not what the testatrix intended to promote, it would seem that if the court grant his prayer it (the court) is assuming the office of the will-maker, and disposing of that to which it has no earthly title.

V. The putting up of the buildings and improvements on the land was either in conformity to the trust imposed on the devise or it was not. If it was not, then the erection of them was at best exceedingly indiscreet; for, as it left a debt of more than $100,000, which, as it would appear, the plaintiff has no means of discharging, either its creditors must suffer or the trust fund be swept away by a waste of it; which can scarcely escape the imputation of dishonesty, unless the plea of incapacity to act rationally be interposed and maintained. If the buildings and improvements were such as were in conformity with the trust, the case is scarcely altered for the better.

The trustee and the corporation were bound, before accepting the trust, to count the cost. They must be supposed to have done so unless their conductors were irrational. Unless they were willing and able out of other funds to provide for the performance of the condition on which the devise was made, it was their duty to refuse the devise. It would in that case have gone to the heirs of Mrs. Biddle, or have passed to her residuary devisee.

A. Hamilton, with whom was A. J. P. Garesche, for defendant in error.

The court is only asked to administer the trust upon principles peculiar to equity. Any variation or modification of the trust which this may necessitate will be the result of circumstances beyond the control of the plaintiff.

A court of equity has the power to modify or mold this trust to the altered condition of things as stated and proved. (Tiff. & Bull. Trusts, 388; Stanley v. Cobb, 5 Wall. 119; Curtis v. Brown, 29 Ill. 201; McIntire v. Zanesville, 17 Ohio St. 352, 363; Allen v. Graves, 3 Bush, Ky., 491; Conkling v. Washington University, 2 Md. Ch. 505; Parke's Charity, 12 Sim. 279; Att'y-General v. Newark, 8 Bligh, N. S., 457; Ashton Charity, 22 Beav. 288; Overseers v. Bierlow, 13 Eng. Law & Eq. 145.)

The defendants have an interest in this property, which it is prayed may be divested out of them. But for what purpose and how? By a sale, the proceeds not to be paid to the plaintiff, but to be applied, under the direction of the court, for the benefit of the balance of the trust property; that is to say, upon the old foundation, and therefore only in execution of the trust. A sale could be had under the decree of the court. and, as will be seen, was in fact so ordered, without any divestiture in terms and with the same effect precisely. But if the prayer were wrong in this or in any other particular, it will be remembered that that is not ground of demurrer.

There is an indebtedness of the plaintiff of $127,000 which was incurred in the due and faithful execution of the trust, as stated in the petition, which greatly embarrassed the institution, and there are no other means than a sale, as prayed for, of satisfying this indebtedness. It is not pretended that this outlay was injudicious or unreasonable, nor is it denied that it has increased the value of the property to the full extent of the money expended. The condition in this case is subsequent. A mere failure to perform such a condition does not divest the estate. (Niccoll v. E. R.R. Co., 2 Kernan, 131.)

It was not claimed that there was a forfeiture, or that there had been any entry for condition broken. But performance was averred in the petition and was proved on the trial. The effect of this performance was to put the plaintiff substantially in the position of a purchaser for value; but however this may be, this property cannot revert to the heirs of the testatrix. Every effort will be made by the court to enforce and administer the trust as far as practicable. (Stanley v. Colt, 5 Wall. 165.

ADAMS, Judge, delivered the opinion of the court.

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