Carlock v. Ladies Cemetery Ass'n

• Decision Date: 13 October 1958
• Docket Number: No. 46120,No. 2,46120,2
• Citation: 317 S.W.2d 432
• Parties: Madge CARLOCK, Clifford Quisenberry, Martin P. Cutting, Helen Carlock Schwartz, Fred M. Carlock, Clinton Carlock, Faye Martin Guignon, Phillip S. Martin, Dickinson P. Martin, Patrick H. Ryan, Madeline Ryan Classen, Doris E. Ryan, Joan Ryan Folkes and James Ryan, Appellants, v. LADIES CEMETERY ASSOCIATION, a Corporation, Ruth schmidt, Julia Reinmiller, Hazel Phillips, Neva Colaw, Hazel Miller, Anna Brandt, Jennie Hoblett, Grace Miller, Madline Sumner, Maude Rogers, and Hazel Gilbert, Appellants-Respondents, The City of Atlanta, Illinois, Respondent
• Court: Missouri Supreme Court

Page 432

317 S.W.2d 432

Madge CARLOCK, Clifford Quisenberry, Martin P. Cutting Helen Carlock Schwartz, Fred M. Carlock, Clinton Carlock Faye Martin Guignon, Phillip S. Martin, Dickinson P. Martin Patrick H. Ryan, Madeline Ryan Classen, Doris E. Ryan, Joan Ryan Folkes and James Ryan, Appellants, v. LADIES CEMETERY ASSOCIATION, a Corporation, Ruth schmidt Julia Reinmiller, Hazel Phillips, Neva Colaw, Hazel Miller, Anna Brandt, Jennie Hoblett, Grace Miller, Madline Sumner, Maude Rogers, and Hazel Gilbert, Appellants-Respondents, The City of Atlanta, Illinois, Respondent.

No. 46120.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Nov. 10, 1958.

Von Mayes, Caruthersville, Bradley & Noble, Kennett, Francis A. Casserly, St. Louis, for plaintiffs-appellants.

Harold F. Trapp, Lincoln, Ill., McHaney & McHaney, Flake L. McHaney, William H. Billings, Kennett, for appellants-respondents.

BOHLING, Commissioner.

Madge Carlock and other collateral heirs, being the sole surviving heirs at law of C. D. Martin, deceased, sued the Ladies Cemetery Association of Atlanta, Illinois, an Illinois corporation, and Frances G. Goodman, James C. Gilliam, Sr., and James C. Gilliam, Jr., to quiet and determine title to described real estate, or a present value of $72,500, in Pemiscot County, Missouri, devised by said C. D. Martin to 'the Atlanta, Illinois, Cemetery.' The cause was transferred to Butler County upon a change of venue. Certain lot owners of said Cemetery, Ruth Schmidt et al. (on behalf of themselves and others similarly situated), and the City of Atlanta, Illinois, were permitted to intervene as parties defendant. No issue is raised respecting the sufficiency of any pleadings.

Briefly and so far as essential to plaintiffs' appeal, the court held the devise a valid public charitable trust to defendant Atlanta, Illinois, a municipal corporation, subject to testator's widow's life interest, for the benefit of its cemetery; found that said City had delegated its municipal functions relating to said cemetery to defendant Ladies Cemetery Association of Atlanta, Illinois, a nonprofit corporation; quieted the title to said real estate in said City of Atlanta, Illinois, and said Ladies Cemetery Association of Atlanta, Illinois, and, said corporations being incapable of taking legal title to real estate in Missouri, the court appointed H. K. Wangelin, an attorney of Butler County, Missouri, trustee to sell said land, to report and, upon approval, to deliver the net proceeds to said City and said Ladies Cemetery Association to be held for the use and benefit of said cemetery, and outlined the procedure for said trustee to follow.

Plaintiffs appealed from the court's decree. Defendants Ladies Cemetery Association and the intervening lot owners (referred to herein, unless otherwise indicated, as defendants) also appealed, having, in a motion for new trial, sought to modify the decree to name said Ladies Cemetery Association or said City of Atlanta as trustee.

Plaintiffs say they, as heirs at law, own this real estate; that the 'Atlanta, Illinois, Cemetery' is a tract of land, is not a legal entity, is incapable of holding title to this land; and that the devise is void and unenforceable.

The defendants contend C. D. Martin intended to create a charitable trust for the use of all having a beneficial interest in the Atlanta, Illinois, Cemetery, and the decree of the court was for the right parties.

C. D. Martin, the common source of title, died March 2, 1945, at the age of 78 years. His will, executed May 27, 1932, was duly probated in Pemiscot County, Missouri, April 24, 1945, and, after providing for the payment of his debts and the appointment of his wife as executrix, reads, omitting provisions immaterial here:

'* * * It is also my desire that all my possessions, both real and personal, go to my beloved wife, Daisy G. Martin, and remain her property during her life and that she is to handle, exchange, sell, or dispose of same according to her good judgment, excepting 240 acres hereinafter described by meets [sic] and bounds, which is to go to the Atlanta, Illinois, Cemetery, where several members of may family are buried, the one east of the old Fair Ground tract, however, my wife is to have all net income off this 240 acres during her life and that many acres shall be debited to my heirs at law * * *. It is my desire that during her life she may use the income or principal of any part or all, for personal use and expense and at her death all properties both real and personal remaining not used by her personally shall then be divided equally between her heirs at law and my heirs at law unless she sees fit to will the one-half going to her heirs otherwise or to dispose of it otherwise. From the one-half going to my heirs they will first be debited with the 240 acres having a value of $20,000.00 (dollars) which is to come from the one-half going to my heirs, said 240 acres shall not be disposed of by my wife during her life and is to go to said cemetery at her death clear of debt or in other words the necessary money shall be used either from income or disposition of property to keep same clear of debt.

'I repeat that it is may desire that my wife shall use every part of my property excepting the 240 acres mentioned for her own personal use and expense if she so desires * * *.

'The 240 acres herein mentioned is hereby described as follows:

'The E 1/2 of the E 1/2, Sec. 5, Town. 16, R 12 E and the E 1/2 of the SE 1/4, Sec. 32, Town. 17, Range 12 E, Pemiscot County, State of Missouri, containing 240 acres more or less.'

The appraised value of C. D. Martin's real estate, approximately 2,481 actes, for inheritance tax purposes, was $186,090, subject to an encumbrance of $14,594.75. The Missouri inheritance tax ($566.07) on this land was paid by defendant Ladies Cemetery Association with funds reaised by public subscription in Atlanta, Illinois. See In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621. It was not paid by testator's estate or by plaintiffs.

Daisy G. Martin, testator's widow, died testate December 13, 1954. Mr. and Mrs. Martin had no children. Mrs. Martin's heirs and her testamentary beneficiaries, defendants Frances G. Goodman, James C. Gilliam, Sr., and James C. Gilliam, Jr., have not appealed, and the judgment as to their rights is final.

There is only one cemetery in Atlanta, Illinois. It was established by the City in 1857, and was platted. There is no question about the identity of the cemetery.

Illinois Laws 1871, p. 296, entitled 'An Act concerning corporations,' authorized, among other things, 'societies, corporations and associations' to be formed 'for any lawful purpose, other than for pecuniary profit' (Sec. 29); and provided that such corporations 'shall in law be capable of taking, purchasing, holding and disposing of real and personal estate, for purposes of their organization * * *' (Sec. 31).

Defendant Ladies Cemetery Association of Atlanta, Illinois, was organized January 5, 1900, under the not for profit provisions of said Act of 1871 'to obtain land for cemetery purposes and to sell lots for burial purposes and case for such lands and lots and do everything necessary for obtaining, managing and caring for a cemetery.' The City of Atlanta, by deeds dated April 7, 1900, February 4, 1903, and August 12, 1911, conveyed its right, title and interest in the cemetery to said Ladies Cemetery Association, with a reverter clause, broadly stated, if said grantee failed to carry out the conditions imposed upon it.

Illinois Laws 1943, p. 264 (Ill.Rev.Stat. 1945, c. 21, Sec. 64), amending Sec. 2 of Ill.Laws 1927, pp. 191-195, among other things, provided 'Any incorporated cemetery association incorporated not for pecuniary profit, may * * * receive and hold * * * property in perpetual trust pursuant to the provisions of this act. * * * Any person is authorized to * * * devise * * * any * * * property of any kind to the cemetery association, in perpetual trust, for the maintenance, care, repair, upkeep or ornamentation of the cemetery, or any lot or lots, or grave or graves in the cemetery, specified in the instrument making the * * * devise * * *. The cemetery association may receive and hold in perpetual trust, any such * * * property so * * * devised * * * to it, and may convert the property * * * into money and shall invest and keep invested the proceeds thereof * * * in safe and secure income bearing investments, including investments in income producing real estate * * *. The principal of the trust fund shall be kept intact and the income arising therefrom shall be perpetually applied for the uses and purposes specified in the instrument making the * * * devise * * * and for no other purpose.' In addition, such funds and the income therefrom were 'exempt from taxation and from the operation of all laws of mortmain, and the laws against perpetuities and accumulations.' Consult also Ill.Rev.Stats,.1945, c. 21, Secs. 39, 40; Ill.Laws 1917, p. 219, Sec. 5; Ill.Laws 1927, p. 191, Sec. 6.

The 1943 'General Not for Profit Corporation Act' of Illinois (Ill.Laws 1943, p. 481, Sec. 1, effective January 1, 1944, Sec. 104), (Ill.Rev.Stats.1945, c. 32, Secs. 163a-163a100), provided: "Not for profit corporation' means a corporation no part of the income of which is distributable to its members, directors or officers; provided, however, that the payment of reasonable compensation for services rendered * * *, as permitted by this Act, shall not be deemed a distribution of income' (Ill.Laws, supra, Sec. 2(c)); and applied (Id., Sec. 3(b)) to not for profit corporations theretofore organized under Ill.Laws 1871, p. 303, Secs. 29 to 34, the act under which defendant Ladies Cemetery Association incorporated for 'charitable' purposes (Id., Sec. 4). Said corporations, among other things, had power 'to purchase, * * * take by gift, devise or...