Board of Trustees of Methodist Episcopal Church v. May
| Decision Date | 22 February 1907 |
| Citation | 99 S.W. 1093,201 Mo. 360 |
| Parties | BOARD OF TRUSTEES OF METHODIST EPISCOPAL CHURCH, SOUTH, a Corporation, Appellant, v. MAY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. A. F. Evans, Judge.
Affirmed.
Scarritt Scarritt & Jones for appellant.
(1) Plaintiff is competent to institute this suit and to take and administer the gift to the Methodist Episcopal Church, South. The Methodist Episcopal Church, South, is an organized society not incorporated. It is old enough to have a history cohesive and stable enough to frame and enforce regulations rules and laws for the control and government of its property and membership. The plaintiff is a corporate entity organized and maintained by that church for the purposes of holding, handling and transferring its property. All the property held by the plaintiff is the property of the church and is subject to its sole management, control and disposition. The purposes of this corporation are stated in its charter. First Baptist Church v. Robberson, 71 Mo. 326; Schmidt v. Hess, 60 Mo. 591; Mo. Hist. Society v. Acad. of Science, 94 Mo. 459. (2) This will must be construed as a whole in the light of the circumstances which surrounded the testatrix at the time of the execution of her will, and when so construed it is clear that Bessie Timberlake Moore is to receive one hundred dollars from the Kansas City property; that Col. Shrader is to have his expenses, including traveling expenses in looking after the property, paid from the income thereof; that a reasonable sum for fitting up the graves of Colonel and Mrs. Shrader be expended by Wash Adams for that purpose, and that the remainder goes to the Methodist Episcopal Church, South, and particularly to the missionary cause, as enterprised by that church. That the facts and circumstances which surround the testator are to be taken into consideration in construing the language of a will is not an open question in this State; and indeed in England and in many of the States of the Union such is the general rule of construction. If the woman meant to give her property to the Methodist Episcopal Church, South, to be applied to the missionary cause, the bequest will be upheld. It was so ruled in Kinney v. Kinney's Exr, 86 Ky. 610; Schmidt v. Hess, 60 Mo. 591. We are asking no new rule of construction. We are asking that nothing be incorporated in the will more than is expressed or necessarily implied by the language used by the good woman. It is not foreign to the practices of this court to substitute words or to eliminate words when, from the whole context of the will construed in the light of the facts which surrounded the maker of the will at the time it was written, it is evident from that language and such circumstances that such substitution or elimination is necessary to effectuate the evident intention of the testator. Meiners v. Meiners, 179 Mo. 614; Briant v. Garrison, 150 Mo. 655; Thomson v. Thomson, 115 Mo. 50; Young v. Harkleroad, 166 Ill. 318; Glover v. Condell, 163 Ill. 566. (3) The trial court erred in excluding from the evidence the Discipline of the Methodist Episcopal Church, South, tendered by the plaintiff. But this court will give due weight to that evidence, which is in the record, in construing Mrs. Shrader's will upon this appeal. Such facts are clearly competent and material and are essential to the intelligent consideration and construction of this will. Schmidt v. Hess, 60 Mo. 593; Donohue v. Donohue, 54 Kan. 136; Morgan v. Dodge, 44 N.H. 255; Smith v. Holden, 58 Kan. 535; Gould v. Chamberlain, 184 Mass. 115.
Paxton & Rose for respondents.
(1) The words, "My Kansas City property on Olive street, Number 705 and 1489," do not mean "Olive street property numbers 1705 and 1914." The language is plain and without obscurity or double meaning. Hence, it is a patent ambiguity, such as the courts do not correct. Bell v. Adamson, 32 Mo. 79. (2) Words are to be taken in their ordinary meaning, and the courts are not authorized to make wills. Missouri Baptist Sanitarium v. McCune, 112 Mo.App. 339; Lehnhoff v. Theine, 184 Mo. 358. (3) The cy pres doctrine exists in England in two forms: First, the prerogative of the Crown to make a scheme of charity if the donation is too indefinite or to change one charity to another; second, the power of a court of equity to see that the end of a charity, being once established on definite lines, is not destroyed by the changes brought about by time. Only the latter exists in this country. Woman's Christian Assn. v. Kansas City, 147 Mo. 122; Grimes v. Harmon, 35 Ind. 198. (4) The words, "The remainder to be given to the Methodist E. Church, South, and missionary cause," are not technical, and taken in their ordinary meaning are plain enough as far as they go. They mean a part to the Methodist Church, South, and a part to "missionary cause," the nature and scope of such cause being left unexpressed. Now, if either one of these bequests, to the Methodist E. Church, South, or to missionary cause, fails, then it all fails, the court having no power to make an apportionment. 5 Am. & Eng. Ency. Law (2 Ed.), 915. (5) The bequest to the Methodist E. Church, South, fails, because it does not appear whether the bequest is to some local church or to the church at large. McHugh v. McCole, 97 Wis. 156. (6) The bequest to "missionary cause" is void because no court can possibly figure out what missionary cause was meant. Nolte v. Meyer, 79 Tex. 351; Grimes v. Harman, 35 Ind. 198; Moran v. Moran, 104 Iowa 216; Schmucker's Estate v. Reed, 61 Mo. 592. (7) It would be assuming too much to say that if it is proved that testatrix was a member of the Methodist E. Church, then she meant the missionary cause of the Methodist E. Church, but there is no such question here, because it is not alleged in the petition nor anywhere shown by the evidence that the testatrix belonged to the Methodist E. Church or had any leaning toward it or affection therefor. Bowman v. Domestic & Foreign Missionary Soc. of the Protestant Episcopal Church, 87 N.Y.S. 621, 42 Misc. 574. (8) Even if the bequests to the Methodist E. Church, South, and to missionary cause were defiinite and certain as to the beneficiaries, they would both fail because the court could not tell how much to give to the church or how much to missionary cause. Matter of Goodrich, 2 Redf. Sur. 45.
This is an action by plaintiff in the circuit court of Jackson county, Missouri, by which it seeks, first, to have the following clause of a will executed by Elizabeth A. Shrader, deceased, construed, said clause being:
"My Kansas City property on Olive street, No. 705 and 1489, will a portion be for the fitting up our graves be left in the hands of Wash Adams for that purpose; the remainder to be given to the Methodist E. Church, South, and missionary cause."
And secondly, to have said property sold and the proceeds applied to the payment of a mortgage of $ 700 thereon, and $ 500 to Wash Adams as trustee, and the remainder of said proceeds to this plaintiff for missionary purposes. Defendants Stella Timberlake May and John I. May by answer aver that they have no interest in the suit and ask to be discharged with their costs. Defendant John G. Paxton, guardian ad litem for Charles Timberlake, averred the ownership of the property to be in Charles Timberlake as the heir at law of Elizabeth A. Shrader, and likewise asked the court to so construe the will and so declare, and denied all other matters set out in the petition. Defendants S. R. Shrader and Wash Adams by joint answer practically admit all the matters and things set out in the petition except the construction of the will contended for by plaintiff and aver that said will should be construed and the rights of the respective parties determined.
Defendant Finch answered, first, by way of general denial, and then by an admission that the deceased, Elizabeth A. Shrader, made and executed a mortgage of which he was the holder in the sum of $ 700 and accrued interest, covering the property alleged to be involved in this litigation, which said mortgage is a first lien, and praying the court in the event of a sale to have his debt first fully paid and satisfied. The trial court found said clause of the will to be void and too uncertain and indefinite to be enforced and denied the prayer of plaintiff's petition asking for the sale of said property and gave judgment for defendants against plaintiff for costs.
Evidence Certified copy of the will was introduced by plaintiff containing the clause hereinabove set forth. Plaintiff then introduced its charter, showing it to be a Tennessee corporation with power to receive and hold contributions of property of the character mentioned in this will under the construction thereof contended for by the plaintiff herein. There was also introduced certain sections of the Discipline of the Methodist Episcopal Church, South. The age of the defendant S. R. Shrader was shown to be eighty-one years. It was also shown that Mrs. Shrader did not in fact own the property at No. 705 and No. 1489 on Olive Street, but that she did own two tracts of land on Olive street, at No. 1705 and No. 1914, respectively, and had never owned any other tracts of land on Olive street in Kansas City, save and except these two tracts, which she owned at the date of making the will as well as at the date of her death. The deed of trust to Finch was introduced. The evidence further disclosed that neither tract of land was of very great value. By oversight, or otherwise, the evidence fails to disclose that Mrs. Shrader was a member of the Methodist Church, South. Motion for new trial was filed and overruled and plaintiff duly perfected its appeal. Such...
To continue reading
Request your trial