Barkley v. Donnelly

• Decision Date: 09 May 1892
• Parties: BARKLEY et al. v. DONNELLY et al.
• Court: Missouri Supreme Court

19 S.W. 305

112 Mo. 561

BARKLEY et al. v. DONNELLY et al.

Supreme Court of Missouri.

May 9, 1892.

CHARITABLE AND RELIGIOUS DEVISES — VALIDITY — INDEFINITE OBJECTS — CONSTITUTIONAL LAW.

1. By the eighteenth item of her will testatrix devised to the city of K. the F. place, in trust for the following uses. For a home for the maintenance of poor children, to be called the "G. Orphan Asylum." The nineteenth and twentieth items provided that an opera house should be built on certain lots numbered 209 and 210, and that the profits therefrom should be applied to "keeping up the G Orphan Asylum." The twenty-first item provided that, "after the devises and bequests hereinbefore made, and after the completion of the G. Opera House," whatever was left should be applied to building a religious school. The twenty-second item provided that if, after the other devises hereinbefore made, the estate should be insufficient to build the "opera house, and reserve the F. place for the G. Orphan Asylum," then "I authorize and empower my executors to sell said lots 209 and 210 and the F. place, together with other remaining property," after the "other devises and bequests hereinbefore those made," and out of the proceeds "purchase another site for an opera house and orphan asylum, and thereon build such an opera house and asylum as the means will admit of." Held, that the trusts upon which the F. place and lots No. 209 and 210 were devised were not void because the beneficiaries were not sufficiently definite and certain, or because no means was provided, nor authority given, for the erection of the asylum.

2. Testatrix's heirs could not question the validity of the twenty-first item of the will, wherein a religious school was provided for, since, if unconstitutional, the property mentioned therein was disposed of by the twenty-second item.

3. Municipal corporations may be devised property for charitable uses.

4. Where more than an acre of land was devised in trust for the erection of a church and religious school, and the title to so much of the land as exceeded an acre failed, the devise was valid as to the remainder; Const. art. 1, §§ 12, 13, making void every devise for such purposes of land exceeding one acre in extent.

In banc. Appeal from circuit court, Jackson county; R. H. FIELD, Judge.

Bill in equity by Orlando G. Barkley and others against Bernard Donnelly and others. From a judgment sustaining a demurrer to their bill, complainants appeal. Affirmed.

Gates & Wallace and Karnes, Holmes & Krauthoff, for appellants. E. L. Scarritt, Gardiner Lathrop, and Jas. F. Mister, for respondents.

THOMAS, J.

This is a suit in equity by the heirs of Mary A. Troost to recover the beneficial interest in certain property in Kansas City, attempted to be donated by the will of Mrs. Troost to certain religious and charitable objects, and asking a construction of the will for this purpose. The circuit court rendered judgment sustaining a demurrer to the petition, dismissing the suit, and for the recovery of costs against the plaintiffs. From this judgment the plaintiffs appeal.

The petition sets out the will in hæc verba, which, after devising considerable property to the plaintiffs, and making a few other special bequests, contains the following: "Item Seventeenth: I give and devise to Charles Field, Michael Dively, and H. W. Cooper, all of Kansas City, lots numbered 3, 4, 5, and 6, in block 83, in East Kansas; also my residence property on the corner of Fourth and High streets in the City of Kansas, * * * in trust, however, for the following purposes: That there may be built and maintained on said lots 3, 4, 5, and 6, an Episcopal church, to be called `St. Mary's Church,' and an Episcopal male and female college, to be called `St. Mary's College,' and my said residence property for a parsonage house for the rector of St. Mary's Church. As soon as such congregation shall be organized after the requirements of the Episcopal Church, and provided with a rector, I then direct and require that said trustees, the survivor or survivors of them, or the heirs of such survivor, by a good and sufficient deed, convey said lots and residence to the vestry of St. Mary's Church, or to such persons as said congregation and the rules of the Episcopal Church may select, to be by such persons and their successors held for the purposes hereinbefore stated, to the end that the title to such property may be under the control of such church for the purposes aforesaid. Item Eighteenth. I give and devise to the City of Kansas the parcel of land * * * containing from five to ten acres, * * * called the `Fry Place,' to hold the same in trust, however, for the following uses, and none other: For a home and place for the maintenance and education of poor children; and the same shall be called the `Gillis Orphan Asylum.' Item Nineteenth: I give and devise to John Campbell. William S. Gregory, and Bernard Donnelly, all of the City of Kansas, lots 209 and 210, in block 21, in the old town of the City of Kansas, in trust, however, that they and their successors in this trust shall, when the Gillis Opera House is built, keep the same in repair, well insured, and pay all taxes and other necessary and proper expenses connected with the management of the same, and the net proceeds arising therefrom by way of rents or otherwise use in keeping up the Gillis Orphan Asylum, hereinbefore provided for, and in carrying out the beneficial object and design of that institution. * * * Item Twentieth: I hereby authorize, empower, and direct my executors to sell all of my real estate, not hereinbefore disposed of, be the same where it may, and out of the proceeds of the same and of the assets of the Gillis estate, not otherwise herein disposed of, to build and construct in a substantial manner and in good style an opera house on said lots 209 and 210; * * * and in front of such building shall be placed, in a durable and conspicuous position, a marble block or slab, with the name of `Gillis Opera House' engraved thereon; and such house, when completed, with business rooms on the first floor, and for the purpose which its name imports, and otherwise, so as to produce rents, shall cost not less than one hundred thousand dollars and not more than one hundred and twenty-five thousand dollars, the sum between the limits to be determined by my executors. Item Twenty-First: After the devises and bequests hereinbefore made, and after the completion of the Gillis Opera House, should there be anything, and whatever is, left, I direct that my executors use and apply in building a male and female college on the lots hereinbefore set apart for the same, and called `St. Mary's College;' and in building the same my executors will consult the vestry of St. Mary's Church, it being intended that such college shall be an Episcopal institution, and under the government of the Episcopal Church. Item Twenty-Second: Should there not be sufficient of my estate to build the Gillis Opera House and reserve the Fry place for the Gillis Orphan Asylum after the other devises and bequests hereinbefore those made, then I authorize and empower my executors to sell said lots 209 and 210 and the Fry place, together with the other remaining property, after the other devises and bequests hereinbefore those made, and out of the proceeds purchase another site for an opera house and orphan asylum, and thereon build such an opera house and asylum as the means will admit of, following the directions hereinbefore given as nearly as may be." The testatrix appointed Bernard Donnelly, Jr., and Francis M. Black her executors. The will was executed November 28, 1871; the testatrix died in January, 1872; and the will was probated January 13, 1872.

The petition proceeds as follows: "Plaintiffs state that said Gillis Opera House, provided for in item twentieth of said will, has long since been complete, and said trustees are in possession, receiving the proceeds from the rents and use of the same. Plaintiffs further state that there is not now, and never has been, on the said Fry place, described in item eighteenth of said will, any home or place for the maintenance or education of poor children, or any orphan asylum, and that there is not, and never has been, any money or means provided by said will or otherwise to build any such home or asylum; that there has not been used, and cannot be used, any proceeds of the income of said Gillis Opera House to support or maintain any such home or asylum. Plaintiffs state that the said City of Kansas has not now, and never has had at any time, any power or authority under its charter to build or to provide the means for building any such home for poor children or asylum. Plaintiffs say that the description in said will of the persons who may have been intended by the said testatrix as the objects of her charity in the devise of the said Fry place to the City of Kansas, in the devise of lots 209 and 210 of block 21 in the old town of the City of Kansas to John Campbell, William S. Gregory, and Bernard Donnelly, and in directing her executors to build the Gillis Opera...