Bishop v. Broyles

• Decision Date: 11 December 1929
• Docket Number: 27746
• Citation: 22 S.W.2d 790,324 Mo. 69
• Parties: Columbus Bishop et al. v. James Broyles et. al.; Missouri Valley College and Bethel College, Interveners and Appellants
• Court: Missouri Supreme Court

22 S.W.2d 790

324 Mo. 69

Columbus Bishop et al. v. James Broyles et. al.;

Missouri Valley College and Bethel College, Interveners and Appellants

No. 27746

Supreme Court of Missouri

December 11, 1929

Appeal from Barton Circuit Court; Hon. B. G. Thurman Judge.

Reversed and remanded (with directions).

Henry S. Conrad, L. E. Durham and Hale Houts for appellant Missouri Valley College.

(1) If beneficiaries under the terms of a will, in view of surrounding circumstances, may be identified with reasonable certainty, the will is not void and unenforceable for uncertainty. Mott v. Morris, 249 Mo. 150; Hadley v. Forsee, 203 Mo. 427; Barkley v. Donnelly, 112 Mo. 571; Griffith v. Witten, 252 Mo. 627; 40 Cyc. 1469; Dean v. Carroll County, 103 Md. 662, 64 A. 314, 7 L. R. A. (N. S.) 1119; Brewster v. McCall, 15 Conn. 274; Bodman v. Am. Tract Soc., 9 Allen (Mass.) 447; Matter of Foley, 58 N.Y.S. 201; Doughett v. Stinson, 63 Mo. 268; Board of Trustees v. May, 201 Mo. 360; Moran v. Moran, 104 Iowa 216; Grimes' Exrs. v. Harmon, 35 Ind 198; Coleman v. O'Leary's Exr. (Ky.), 70 S.W. 1068; Nolte v. Meyer, 79 Tex. 351; Pack v Shanklin, 43 W.Va. 304; McHugh v. McCole, 97 Wis. 166; Robinson v. Crutcher, 277 Mo. 1; Schneider v. Kloepple, 270 Mo. 396; Lackland v. Walker, 151 Mo. 210; Sappington v. School Fund Trustees, 122 Mo. 32. (2) Under the last will and testament of C. C. Broyles, the property devised by Paragraphs 3rd and 4th thereof vested a life estate in his widow, with remainder in Ozark College for purposes named, and upon Ozark College going out of existence and from under the jurisdiction and control of the Cumberland Presbyterian Church in the year 1901, said remainder immediately vested in Missouri Valley College. Helm v. Zarecor, 222 U.S. 32; Synod of Kansas v. Mo. Valley College, 208 F. 324; Barkley v. Hayes, 208 F. 319; Watson v. Jones, 13 Wall. 379, 726; Chew v. Kellar, 100 Mo. 368; Tindall v. Tindall, 167 Mo. 225; Heady v. Hollman, 251 Mo. 632; Warne v. Sorge, 258 Mo. 171; Byrne v. France, 131 Mo. 639; Williams v. Lobban, 206 Mo. 399; Dunbar v. Sims, 283 Mo. 356; Baker v. Kennedy (Mo.), 238 S.W. 790; Waddell v. Waddell, 99 Mo. 338; Todd v. Connor Inv. Co., 266 S.W. 955; Melrose v. Hoffman, 225 S.W. 107; Dickerson v. Dickerson, 211 Mo. 483; Green v. Irvin, 274 S.W. 684; Mace v. Hollenbeck, 175 S.W. 876; Mitchell v. Morrisville College, 266 S.W. 481; Holland v. Drug Co., 284 S.W. 123; Crews v. Crews, 240 S.W. 152. (3) At the time of the death of Margaret I. Broyles, in 1924, Missouri Valley College was the nearest college in fact and at law under the control and ownership of the Cumberland Presbyterian Church. Barkley v. Hayes, 208 F. 319; Duvall v. Synod of Presbyterian Church in United States, 222 F. 669; Hayes v. Manning, 263 Mo. 1; Pleas. Grove Cong. v. Riley, 248 Ill. 604; Com. of Missions v. Pac. Synod, 157 Cal. 105. (4) Bethel College does not come within the terms of the Broyles will. Hayes v. Manning, supra; Watson v. Jones, 13 Wall. 679; Lamb v. Cain, 129 Ind. 513; Mack v. Keim, 129 Ga. 17; White Lick v. White Lick, 89 Ind. 51; Bear v. Heasley, 98 Mich. 279. (5) Under the cy pres doctrine Missouri Valley College is entitled to the property described in Paragraphs 3rd and 4th of the Broyles will. 40 Cye. 1470; Barnard v. Adams, 58 F. 313; Good v. McPherson, 51 Mo. 126; Academy v. Clements, 50 Mo. 167; Catron v. Scarritt Collegiate Institute, 264 Mo. 713; DeWitt v. Chandler, 11 Abbott's Pract. 459.

Thos. W. Martin for appellant Bethel College.

(1) To save repetition Bethel College adopts points numbered 1, 4 and 6, and authorities cited thereunder, in brief of Missouri Valley College, as those points and authorities are equally applicable in behalf of Missouri Valley College and Bethel College, as against the contentions of respondents. (2) The Broyles will created a trust whereby his property is dedicated in trust for the specific and express purpose of inculcating, sustaining, supporting, and propagating a definite religious doctrine, creed, form of faith and principles -- the property to pass to trustees "as an endowment fund to be loaned on real estate security perpetually from year to year, the interest to be used to pay the school expenses of worthy young men who are not able to educate themselves and who declare their intention to become lifelong ministers of the gospel in the Cumberland Presbyterian Church." Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666; Boyles v. Roberts, 222 Mo. 704; Hayes v. Manning, 263 Mo. 1, 40. (3) There are essential differences between the confessions of faith of the Cumberland Presbyterian Church at the time of the execution of the will and the confessions of faith of the Presbyterian Church in the United States of America. Boyles v. Roberts, 222 Mo. 613. (4) By the will in controversy a life estate was given to Margaret I. Broyles and by the passing of Ozark College there is a contingent remainder over to take effect at her death. Dickerson v. Dickerson, 211 Mo. 483; Hartnett v. Langan, 282 Mo. 471; DeLassus v. Gatewood, 71 Mo. 371; Buxton v. Kroger, 219 Mo. 224; Emison v. Whittlesey, 55 Mo. 254; Eckle v. Ryland, 256 Mo. 424; Donaldson v. Donaldson, 311 Mo. 208; Grenzevach v. Grenzevach, 286 S.W. 81. (5) An estate in remainder may be created by deed or will to commence in the future without an intervening estate. Buxton v. Kroger, 219 Mo. 224; Eckle v. Ryland, 256 Mo. 424; O'Day v. Meadows, 194 Mo. 621. (6) Bethel College, at the death of Margaret I. Broyles, in 1924, was the nearest, and, in fact, the only college under the control and ownership of the Cumberland Presbyterian Church in contemplation of the Broyles will. (7) Bethel College is a legal entity and has a corporate existence and is under the control of the Cumberland Presbyterian Church, as is abundantly shown by the record.

H. C. Hembree and E. L. Moore for respondents.

(1) Even in a charitable devise or conveyance, there must be a lawful taker, and the taker and object must be designated with reasonable certainty. Board of Trustees v. May, 201 Mo. 368; Robinson v. Crutcher, 277 Mo. 1; Cummings v. Dent, 189 S.W. 1161. (2) To qualify under this will, a college must show that at the time the remainder should vest it was "owned and controlled by the Cumberland Presbyterian Church." Proctor v. Board, 225 Mo. 62. The term church "is one of very comprehensive signification, and imports an organization for religious purposes, for the public worship of God." 11 C. J. 762. (3) This property was sought to be impressed with a "specific religious trust," and was therefore not affected by the union of 1906. Hayes v. Manning, 263 Mo. 40; Watson v. Jones, 13 Wall. 679; Pres. Church v. Cum. Church, 245 Ill. 74. (4) To say that a college is "owned and controlled by the Cumberland Presbyterian Church" is not the statement of any fact -- it is neither good pleading nor good evidence. It is a mere legal conclusion and does not prove anything. Vawter v. Hultz, 112 Mo. 640; Cluett v. Union E. L. & P. Co., 220 S.W. 867; Sidway v. Mo. L. & L. S. Co., 163 Mo. 374; Mallinckrodt v. Nemnich, 169 Mo. 397; Lewis v. McMahon, 307 Mo. 567. (5) A will must clearly dispose of property; otherwise, it will go to the heirs. Corby v. Corby, 85 Mo. 371; Hadley v. Forsee, 203 Mo. 418; Wyatt v. Stillman Institute, 303 Mo. 103.

OPINION

Walker, J.

The purpose of this proceeding is twofold. First, to construe a will and, second, to partition the property in controversy. The will in question is that of C. C. Broyles and Margaret I., his wife. It is joint and bears date of April 11, 1889. C. C. Broyles died in 1896; Margaret I. Broyles died in 1924. The will was duly proved in the Probate Court of Barton County, in January, 1896.

The plaintiffs, as well as the defendants, are the heirs at law of C. C. Broyles. The burden of the first count of the petition is that the terms of the will are too indefinite and uncertain to render the same operative as a devise of the real estate referred to. If this contention be sustained a partition will be authorized. Otherwise not.

The paragraphs (3 and 4) of the will seeking construction are as follows:

"3. At Margaret I. Broyles' death and after the expense of her last sickness and funeral has been paid, I direct my executors to transfer and deed all of my remaining estate to the trustees of Ozark College, an institution of learning owned and controlled by the Cumberland Presbyterian Church, situated at Greenfield, Dade County, Missouri, as an endowment fund to be loaned on real estate security perpetually, from year to year; the interest to be used to pay the school expenses of worthy young men, who are not able to educate themselves, and who declare their intention to become lifelong ministers of the Gospel in the Cumberland Presbyterian Church.

"4. And if by any means or circumstances, the said Ozark College goes from the ownership of the Cumberland Presbyterian Church, or its control, then the nearest College, to the said Ozark College, that is owned and controlled by the Cumberland Presbyterian Church and is without incumbrance, or indebtedness shall become heir to the endowment fund as above described."

The contention of Missouri Valley College, which was permitted to intervene, is that when Ozark College ceased to exist in the year 1901, it thereby terminated its connection with and was no longer under the control of the Cumberland Presbyterian Church and that the Missouri Valley College, being at the time the nearest college to said Ozark College owned and controlled by the Cumberland Presbyterian Church, and without incumbrance or indebtedness, became, under the terms of said will, entitled to the property or endowment fund mentioned in the will, subject to the life estate of Margaret I. Broyles. Further than...