Board of Trustees v. May

• Decision Date: 22 February 1907
• Citation: 99 S.W. 1093,201 Mo. 360
• Parties: BOARD OF TRUSTEES OF METHODIST EPISCOPAL CHURCH, SOUTH, v. MAY et al.
• Court: Missouri Supreme Court

99 S.W. 1093

201 Mo. 360

BOARD OF TRUSTEES OF METHODIST EPISCOPAL CHURCH, SOUTH, v. MAY et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. WILLS — DEVISES — DESCRIPTION — SUFFICIENCY.

Where testatrix devised "my Kansas City property on Olive street, No. 705 and 1489," while the only property owned by her was at different numbers on such street, the particular description by number could be rejected and the general description relied on.

2. SAME—CHARITABLE BEQUEST—INDEFINITENESS.

A devise of property to the "Methodist E. Church, South, and missionary cause," was void and of no effect for being indefinite and uncertain.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by the board of trustees of the Methodist Episcopal Church, South, against Stella Timberlake May and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action by plaintiff in the circuit court of Jackson county, Mo., 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 81 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 portions of the testimony as may be necessary for the disposition of the case will be more fully investigated in the course of the opinion.

Scarritt, Scarritt & Jones, for appellant. Paxton & Rose, for respondents.

GRAVES, J. (after stating the facts).

As we gather it from the record, the following contentions were made by respondent in the circuit court: (1) That plaintiff had no right to maintain this suit under the terms of the will; (2) that the description of the property in the will involved in this case is not property which was owned by the decedent, and that the property now sought to be brought in under the terms of the will cannot be subjected to its terms, even if the will is in all parts valid and enforceable; (3) that the clause of the will hereinabove set out in the statement of facts, and under which the plaintiff claims, is too indefinite and uncertain to be enforced by the courts, and for that reason invalid; (4) that the plaintiff could not introduce in evidence the official book of rules and discipline of the Methodist Episcopal Church, to wit, "to show the authority of this corporation [meaning plaintiff] to act for the church." The court excluded the rules last mentioned, and also sustained the contention of respondent as to contention 3 above. Contention 4 was sustained during the trial and contention 3 by the express terms of the judgment. We are not further enlightened as to the views of the trial judge upon the first and second contentions. By brief of respondent the first and second contentions do not seem to be seriously urged, so that we will take up the third and fourth contentions, considering the rules and discipline offered as if admitted.

1. The description given in the will is "my Kansas City property on Olive street, No. 705 and 1489." The property sought to be charged by this suit by the disposing part, if any, of the will, is Nos. 1705 and 1914 on Olive street, in Kansas City, Mo. The evidence, aliunde, shows that decedent had no property in Kansas City except upon Olive street, and no property upon that street except at the numbers last mentioned, to wit, Nos. 1705 and 1914, being the two tracts of land described by metes and bounds in the petition. We are not disposed to agree with respondent in his contention as to the sufficiency of this description. We have here a general description of "my Kansas City property on Olive street," followed by a particular description, "No. 705 and 1489." In our judgment we can reject this particular description...