City of St. Louis v. Mcallister

• Decision Date: 26 January 1920
• Docket Number: No. 20772.,20772.
• Citation: 218 S.W. 312,281 Mo. 26
• Parties: CITY OF ST. LOUIS v. McALLISTER, Atty. Gen. (SMITH et al., Interveners).
• Court: Missouri Supreme Court

218 S.W. 312

281 Mo. 26

CITY OF ST. LOUIS v. McALLISTER, Atty. Gen. (SMITH et al., Interveners).

No. 20772.

Supreme Court of Missouri, in Banc.

January 26, 1920.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Suit by the City of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, against Frank W. McAllister, Attorney General, wherein Chambers Smith and others intervened. Decree for plaintiff, and defendant and interveners appeal. Reversed and remanded, with directions to dismiss bill without prejudice.

This is a suit in equity originally Institute" ed December, 1916, in the circuit court of the city of St. Louis. The suit was instituted by the city of St. Louis, trustee under the will of Bryan Mullanphy, deceased, as plaintiff, against the Attorney General of Missouri (as the representative of the general public in matters appertaining to the administration of public charities) as defendant.

The purpose of the suit, as disclosed by the pleadings, was to have a court of equity apply the cy pres doctrine to the administration of the trust fund provided by said will, and to have the court authorize a sale of all the real estate belonging to said trust fund, and that the proceeds from such sales be reinvested in high class securities.

After the suit was instituted certain collateral kindred of the testator, by leave of court, filed a petition as interveners. This petition, in substance, states that the objects for which the charity was originally created have failed, and prayed that the court decree a resulting or constructive trust in said property in favor of the heirs of said testator. Trial in the circuit court resulted in a decree in favor of the plaintiff, and thereupon the defendant and the interveners duly perfected an appeal.

The will by which the trust fund in question was originally created was as follows:

"I, Bryan Mullanphy do make and declare the following to be my last will and testament.

"One equal undivided third of all my property, real, personal and mixed I leave to the city of St. Louis in the state of Missouri, in trust to be and constitute a fund, to furnish relief to all poor emigrants, and travelers coming to St. Louis, on their way bona fide to settle in the West. I do appoint Felix Coste and Peter G. Camden, executors of this my last will and testament, and of any other will or executory devise that I may leave. All and any such document will be found to be olograph, all in my own handwriting. In testimony whereof witness my hand and seal.

                                  "Bryan Mullanphy [Seal.]
                  "Witnesses who have all signed in the presence
                of the testator and each other, and saw the testator
                sign in the presence of them and each of
                them.                 Adolphus Wistizenus
                                     "John Wolff
                                     "W. M. Warne
                                     "C. August Schabel."
                

Some of the witnesses estimate the present value of said trust estate to be about $1,000,000.

We have read the large record in this case and find that a fair summary of the facts is found in the statement made in the brief of the learned Attorney General. In fact the Statement of facts made by respondent is practically the same as that made by the defendant.

From the statement of facts contained in the brief filed by the Attorney General, as appellant, we quote as follows:

The plaintiff introduced in substance and briefly stated the following evidence material to the issues involved:

"By the will of Bryan Mullanphy, a wealthy and eccentric bachelor living in St. Louis, executed in 1849 and duly probated in 1851 in the probate court of the city of St. Louis, real estate to the value of approximately $500,000, consisting of about 90 parcels, was left to the city of St. Louis, as trustee, `to be and constitute a fund to furnish relief to all poor emigrants, and travelers coming to St. Louis, on their way bona fide to settle in the West.'

"Collateral heirs of the testator immediately brought suit in partition claiming the above devise void and asserting title to the entire property. The circuit court of the city of St. Louis found against the heirs, held the devise valid, and its judgment was affirmed by the Supreme Court in 1860. Chambers et al. v. City of St. Louis, 29 Mo. 543. The General Assembly, by an act approved March 12, 1859 (Laws of Missouri 1859, p. 280), empowered the city of St. Louis to take, as trustee, devises and bequests for charitable purposes.

"The city in 1860 began the administration of the fund, and by charter provisions and ordinance authorized the city to accept the trust and provide a scheme and plan for its administration. Changes, in the details of the plan of administration were made in 1876. Article 1, Charter City of St. Louis 1876, Ordinance No. 10316, Exhibit No. 5; also clause 10, § 1, art. 1, and section 1, art. 14, Charter City of St. Louis, adopted June 30, 1914; Ordinance No. 27808, Exhibit 6; Ordinance No. 28840.

"The property passing to the city of St. Louis, trustee, under the Mullanphy will consisted of real estate located in the city of St. Louis, in the county adjoining, and a few parcels in other parts of the state of Missouri. About 60 or 75 per cent. of said property is improved. The greater portion of the improvements on said property was in poor and dilapidated condition.

"A large portion of the income of said property has been applied from year to year in making additions to and repairing improvements, and in building a `model tenement' in the nature of an apartment house. Large sums have always been necessary for the item of repairs. Within the last five years more than $150,000 have been spent in alterations and repairs, with the result that with the exception of perhaps one or two parcels all are in excellent condition. The tenement property is in that portion of the city known as the `Ghetto,' which is inhabited by poor people. The vacant city property and the farm, lands have never produced even a reasonable return on the value thereof. The farm lands are largely unimproved and cannot be rented to advantage. The gross annual income from said property is approximately $42,000.

"By provisions of the charter and ordinances of the city of St. Louis, the fund was originally administered by a board of 13 members, appointed by the mayor under a ward plan. In 1915 the board of managers was reduced to 3 members, who are appointed by the mayor and constitute what is known as the board of Commissioners of the Mullanphy Emigrant and Travelers' Relief Fund.' The present board maintains a permanent office at 307 Locust street, in the city of St. Louis, and meets regularly on Monday. The present members of the board are Theo. A. Morrey, Pres., Wm. Riley, Vice Pres., and J. Russack.

"Walter Ermatinger, who has been for nine years employed by the board as assistant secretary and secretary, testified that the records in the office of the board were more or less incomplete from the foundation of the fund; that during certain periods practically no records were made or preserved. In 1874 a committee was appointed by the mayor, at the request of the then board of managers of the fund, to investigate and report to the board of aldermen their findings as to the condition and administration of the fund up to said date. The committee's report is set out in full in the evidence. It is very complete, and frankly discloses that during the 13 years the fund had then been in existence little attention had evidently been given it by those responsible for its administration. Meetings of the board had been held very irregularly and sometimes at long intervals; no minutes were kept; no rent roll or other complete report of the income that should be returned by said property was ever made up. Much of the property had been allowed to fall into disrepair. The report of the committee concludes with various recommendations concerning the administration of the fund in the future.

"During the interim between 1869 to 1896 the board had a representative whose duty it was to meet the trains coming into St. Louis and endeavor to locate emigrants and travelers who might be entitled to aid from the fund. Between the years of 1894 and 1915 no such representative was employed. In 1915 the present board was appointed and the so-called `Travelers' Aid Bureau' was established at the Union Station. The terminal company furnishes the bureau with an office in the main reception room of the station, which is on the second floor, and when the bureau was opened posted a bulletin calling the attention of its employés to its existence. No special instructions are known to have been given them concerning it at that time, or since. The chief inspector, Mr. Elliott, testified that he had talked to various terminal employés concerning the work of the bureau when he took charge of the work. Terminal employés give attention only to such emigrants and travelers as apply for relief.

"Mr. Elliott, as chief inspector, has been in charge of the bureau since its establishment. Prior to his appointment he had been for three years in the secret service department of the Terminal Railroads Association. He is assisted by a woman who is in charge from 7 o'clock in the morning until 3 in the afternoon. It is the duty of these employés to meet all trains entering the Union Station and to look after the welfare of emigrants and travelers who might come within the class designated as beneficiaries of the fund. Mr. Morrey, president of the board, visits the station frequently in the evening and confers with the employés. Cases are investigated, and if applicants appear to be entitled to relief are referred to the board. The board, if the case is found within their jurisdiction, issues the necessary warrant to furnish the aid needed. No money is paid out by any employé except on authority from the board. The Travelers' Aid workers receive no supervision from the office of the board direct....