City of St. Louis v. Crow

• Decision Date: 26 November 1902
• Citation: 171 Mo. 272,71 S.W. 132
• Court: Missouri Supreme Court
• Parties: CITY OF ST. LOUIS v. CROW, Atty. Gen.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 132

171 Mo. 272

CITY OF ST. LOUIS v. CROW, Atty. Gen.^*

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

DECREE—FINALITY—RETENTION OF JURISDICTION.

1. On the hearing of a bill by a trustee for a decree authorizing it to divert the trust fund under the cy pres doctrine, the court generally found all the issues against all the prayers of plaintiff's petition, but afterwards found specially that the relief prayed might be advisable at some future time, and decreed that plaintiff be empowered to divert the trust fund as prayed at such future time as the court should deem advisable, and expressly "retained jurisdiction for the purpose of making further orders and decrees as might be proper." Held. that the decree was, in effect, a final judgment for defendant, without prejudice to the subsequent bringing of another suit; hence the attempted retention of jurisdiction was a nullity, conferring no power to make a subsequent order in the same cause.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Bill by the city of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, against E. C. Crow, as attorney general. From an order authorizing plaintiff to dispose of certain trust property, defendant appeals. Reversed.

The Attorney General and G. B. Webster, for appellant. Eugene McQuillin, for respondent.

VALLIANT, J.

The city of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, brings this suit in equity seeking a decree authorizing it to divert the trust fund of property from the literal use to which the will appropriates it to the building, establishing and maintaining a hospital for the indigent sick, especially those who fill the description of persons aimed to be cared for in the will. Bryan Mullanphy died in 1851, leaving one-third of his large estate to the city of St. Louis, "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." After his death the clause of the will was the cause of litigation between his heirs and the city, which was terminated by the decision in Chambers v. City of St. Louis, 29 Mo. 543. In that decision it was held that the clause in question was a valid devise in trust for a charitable use, and that the city was competent to administer the trust. The petition in this case gives a history of the management of the trust property by the city from the date of the decision in the case above referred to (1860) up to April 1, 1898, which was a few days before the filing of this suit. From the petition it appears that in 1860 the real estate set apart to the city for this trust in the partition of the estate was worth $500,000; that from that date to April 1, 1898, the trustee had collected, through its board of managers, as revenue from the property, $949,547.87, out of which it expended the sum of $211,755.96 for the relief of "poor emigrants and travelers," and all the rest was consumed in the expense of administration. The petition states: "That from September 1, 1895, to April 1, 1898, inclusive, the total receipts aggregated the sum of $74,256.15, and of this sum but $5,548.67 were paid out for the relief of poor emigrants and travelers; that from September 1, 1895, to April 1, 1898, inclusive, the total expenditures aggregated the sum of $49,599.33, and during said period of time but $5,548.67 were expended for the relief of poor emigrants and travelers as aforesaid. Plaintiff avers that like comparisons of the receipts, and also of the expenditures, with sums paid out for the relief of poor emigrants and travelers for other given periods, shows like results; that the said sums paid out for relief of poor emigrants and travelers have been very small as compared with the receipts, as well as compared with the expenditures made in keeping and preserving the trust estate." The personal property belonging to the estate at the date of filing the petition was stated to be of the value of $52,937.53. The real estate is set out by description in the petition showing much of it to be unproductive, and needing improvement to render it available for use. It is stated also that at the date of the will there was a large movement of population from the east through St. Louis towards the then new western territories; that there were many immigrants who filled the class contemplated in the will, and it was practicable to ascertain the persons among them who were entitled to the testator's bounty; but that now conditions were changed,—there were few of that class coming, and it has been practically impossible to determine whether any given person falls within the classification. The petition then suggests that a purpose nearest to the original charity named in the will would be accomplished by selling all the trust property, and applying its proceeds to building and maintaining a hospital bearing the testator's name, and devoted first to caring for indigent sick persons coming to St. Louis aiming in good faith to reach a new home farther west, and after that to caring for other poor sick people. The prayer of the bill is in accordance with that suggestion. Issues being joined, the cause came on for trial, and a decree was rendered July 28, 1899. In that decree the court made a general finding in these words: "The court doth find the issues for the defendants, and against all the prayers of the plaintiff's petition, and finds more particularly as follows." Then follow certain special findings, among which are these: "Fourth. The court finds that in the management of said estate large expenditures are necessary, which are altogether out of proportion to the sums conferred in benefits, namely, the amounts given to poor emigrants and travelers coming to St. Louis on their way bona fide to settle in the West; that this results from the poor location and dilapidated condition of such real estate, which constantly requires heavy expenditures in the way of repairs, and that the rentals arising therefrom are not adequate. Fifth. The court finds that the number of emigrants and travelers provided for by the will of said testator is not so large as in former years, and is growing smaller, but, in the opinion of the court, is...