City of St. Louis v. McAllister

• Decision Date: 26 January 1920
• Citation: 218 S.W. 312,281 Mo. 26
• Parties: CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY, v. FRANK W. McALLISTER, Attorney-General, and CHAMBERS SMITH et al., Interveners, Appellants
• Court: Missouri Supreme Court

218 S.W. 312

281 Mo. 26

CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY, v. FRANK W. McALLISTER, Attorney-General, and CHAMBERS SMITH et al., Interveners, Appellants

Supreme Court of Missouri

January 26, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Reversed and remanded (with directions).

Frank W. McAllister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for appellant.

(1) The judgment and decree of the court is against the evidence and weight of the evidence. (2) The court erred in its fourth finding of fact that expenditures out of proportion to benefits conferred have been and are necessary because of the poor location and dilapidated condition of the real estate belonging to the fund. (3) The total net income of the trust estate can be applied for the specific purposes designated by the testator. (4) The case made by plaintiff does not sustain the judgment and decree of the court, diverting a portion of the income of the trust estate cy pres. (a) The cy pres doctrine is one of judicial construction, invoked in order to effectuate the paramount purpose of the founder. 11 C. J 360; 2 Perry on Trusts and Trustees (6 Ed.), sec. 728; Mo. Historical Society v. Academy of Science, 94 Mo 467; Crow ex rel. v. Clay County, 196 Mo. 279; Catron v. Scarritt, 264 Mo. 713. (b) The cy pres doctrine is a rule of limitation and in applying same, the court, in the exercise of its equity powers and jurisdiction can give effect only to the express charitable purposes and intent of the donor, as disclosed by the instrument presented for construction. Crow ex rel. v. Clay County, 196 Mo. 272, 278; Jackson v. Phillips, 14 Allen (Mass.) 591. (c) It is a prerequisite to the application of the doctrine that the court discover a general charitable intent. 11 C. J. 361; Quimby v. Quimby, 175 Ill.App. 372; Allen v. Trustees Nasson's Institute, 107 Me. 120; Bragg v. Litchfield, 212 Mass. 148; Teele v. Bishop of Derby, 168 Mass. 341; Richardson v. Mullery, 200 Mass. 545; Mason v. Library Assn., 237 Ill. 442; Nichols v. Newark Hospital, 77 N.J.Eq. 130. (d) A court of equity may vary the details of administration to effectuate the paramount purpose of the founder, but will not alter the charity itself, or substitute another for it. Lackland v. Walker, 151 Mo. 248; Crow ex rel. v. Clay County, 196 Mo. 279; Hadley v. Forsee, 203 Mo. 428; Catron v. Scarritt, 264 Mo. 729. (e) The decree of the court that the income from the trust fund, beyond what may be necessary to properly provide for the persons designated by the testator, shall be used for the purpose of furnishing relief, information, advice and assistance, to worthy emigrants and travelers, generally, in the City of St. Louis, in need and distress, preference at all times to be given to men with families, and women and children coming within the designation aforesaid, alters the scheme of the charity of the founder; in effect established a new charity and exceeds the jurisdiction and power of the court. Crow ex rel. v. Clay County, 196 Mo. 279; Jackson v. Phillips, 14 Allen (Mass.) 591. (f) There can be no application of the American doctrine of the cy pres until there has been an entire failure of the object of the charity according to the original interpretation of the intention of the founder, or until it appears impossible to carry out the scheme according to its terms. Crow ex rel. v. Clay County, 196 Mo. 264; Winthrop v. Attorney-General, 128 Mass. 258; Greene v. Blackwell, 35 A. (N. J.) 375; Philpott v. St. George's Hospital, 27 Beav. 127. Whether the intention of the founder as originally construed has failed is a question of fact. Women's Christian Assn. v. Kansas City, 147 Mo. 127. The evidence in this case is insufficient to sustain the finding of the court that the object of the charity has failed by reason of a cessation of emigration. (5) The decree of the court that the parcels of land described in relator's petition be sold and the proceeds be reinvested in bonds is contrary to the evidence, uncalled for, and unjustified under any view of the situation at this time and opposed to the best interests of the trust estate. (a) Whether inherent or statutory, the power of the court to alienate the lands of a charitable trust is properly exercised only when changed conditions and circumstances make such alteration essential to the beneficial administration of the charity. 11 C. J. 353; 5 R. C. L. 363; Smith v. Smith, 118 N.C. 735; Johnson v. Buch, 220 Ill. 226; Grace Church v. Ange, 161 N.C. 314; Jones v. Habersham, 107 U.S. 183; Lackland v. Walker 151 Mo. 269. (b) No principle obtains justifying the sale of lands dedicated to a charitable use at the mere discretion of the court or upon the sole ground that it appears to be advantageous to the estate. Lackland v. Walker, 151 Mo. 268; Crow ex rel. v. Clay County, 196 Mo. 265; Women's Christian Assn. v. Campbell, 147 Mo. 122. (c) The evidence in this case does not show such change of conditions and circumstances as to render a sale of the lands belonging to the trust estate essential to the beneficial administration of the charity. Women's Christian Assn. v. Campbell, 147 Mo. 103; Lackland v. Walker, 151 Mo. 210. (6) Lands or other property once having vested in a trustee for charitable purposes cannot be reclaimed by the donor or his heirs. (a) The rule is settled and thoroughly established that where lands have been donated and become vested in a trustee for charitable uses, neither the donor, nor his heirs can ever reclaim them. 11 C. J. 371; Acad. of the Visitation v. Clemens, 50 Mo. 171; Women's Christian Assn. v. Kansas City, 147 Mo. 126; Lackland v. Walker, 151 Mo. 242; Crow ex rel. v. Clay County, 196 Mo. 261; Mount v. Morris, 249 Mo. 147; Sandusky v. Sandusky, 265 Mo. 234; Jackson v. Phillips, 14 Allen (Mass.) 647. (b) Where the particular object of the charitable bequest is in existence at the testator's death, but ceases to exist at a subsequent time the legacy does not lapse, but the fund having once vested in the charity may be applied cy pres by the court. 11 C. J. 363; Mason v. Lbr. Assn., 237 Ill. 442; Hubbard v. Worcester Art. Museum, 194 Mass. 280; Nichols v. Newark Hospital, 71 N.J.Eq. 130. (c) When an estate is devoted to a charitable purpose and the income of the estate subsequently increases, so that it is in excess of the requirements of the charity, there will be no resulting trust in favor of the heirs-at-law of the donor, but the entire revenue will be devoted to the object of the charity. Beach on Trusts and Trustees, sec. 329.

Morton Jourdan and Lee W. Hagerman for appellant-interveners.

(1) The court erred in the first clause of its judgment and decree in finding that the interveners had no right, title or interest in any of the property, real, personal or mixed, which Bryan Mullanphy gave to the City of St. Louis in trust. (2) Where there is a failure or partial failure of the purposes, uses and objects of the trust so that the trust cannot be carried out, and the performance of it according to the terms of the declaration of trust is impossible, a resulting and constructive trust in favor of the heirs will be decreed. James v. Allen, 3 Mer. 17; Ommaney v. Butcher T. & R. 260; Fowler v. Garlike, 1 Russ. & M. 232; Williams v. Kershaw, 5 Cl. & F. 111; Harris v. Du Pasquier, 26 L. T. Rep. 289; Leavers v. Clayton, 8 Ch. D. 589; Adye v. Smith, 44 Conn. 60; Chamberlain v. Stearns, 111 Mass. 267; Nichols v. Allen, 130 Mass. 211; Carrick v. Errington, 2 Pere Williams, 361; Collins v. Wakeman, 2 Ves. Jr. 683; Fitch v. Weber, 6 Hare, 145; Flint v. Warren, 16 Sim. 124; Atty-Gen. v. Dean, 24 Beav. 679, 8 H. L. 369; Roper v. Radcliff, 9 Mod. 171; Hopkins v. Hopkins, 1 Atk. 581, 597; Arnold v. Chapman, 1 Ves. 108; Page v. Leapingwell, 18 Ves. 463; Tregonwell v. Sydenham, 3 Dow. 194; Jones v. Mitchell, 1 S. & S. 290; Pilkington v. Boughey, 12 Sims. 114; Turner v. Russell, 10 Hare, 204; Morris v. Owen, W. N. (1875), 134; Huchaby v. Jones, 2 Hawks, 120; Stevens v. Ely, 1 Dev. Eq. 493; Sorrey v. Bright, 1 Dev. & B. Eq. 113; Thompson v. Newlin, 3 Ired. Eq. 338; Lemmond v. Peoples, 6 Ired. Eq. 137. (3) The law of private trusts is that where there is a surplus, residue or balance, over and above the amount necessary to satisfy the purposes, uses and objects of the trust, a resulting and constructive trust will be decreed in favor of the heirs or next of kin. Ellcock v. Mapp (England, 1851), 3 House of Lords Cases, 492; Cooke v. Guavas, 9 Mod. 187; Culpepper v. Aston, 2 Ch. Ca. 115; Levet v. Needham, 2 Vern. 138; Randall v. Bookey, 2 Vern. 425; City of London v. Garway, 2 Vern. 571; Countess of Bristol v. Hungerford, 2 Vern. 645; Starkey v. Brooks, 1 P. Wms. 390; Kiricke v. Branshey, 2 Eq. Ab. 508, pl. 5; Robinson v. Taylor, 1 Ves. Jr. 44, 2 Bro. C. C. 588; Dean v. Dalton, 2 Bro. C. C. 634; Habergham v. Vincent, 2 Ves. Jr. 204; Halliday v. Hudson, 3 Ves. Jr. 210; White v. Evans, 4 Ves. 21; Mordaunt v. Hussey, 4 Ves. 117; Seyel v. Wood, 10 Ves. 75; Nash v. Smith, 17 Ves. 29; Landham v. Sanford, 17 Ves. 442, 19 Ves. 643; Southouse v. Bate, 2 V. & B. 396; Kellett v. Kellett, 3 Dow. 248; Girard v. Hanbury, 3 Mer. 150; Wollett v. Harris, 5 Mad. 452; Rhodes v. Rudge, 1 Sim. 79; Braddon v. Farrand, 4 Russ. 87; Harris v. Harris, 2 Keen, 646; Muller v. Bowman, 1 Coll. 197; Andrew v. Andrew, 1 Coll. 686; Love v. Gaze, 8 Beav, 472; Meryon v. Collett, 8 Beav. 386; Sanderson's Trust, 3 K. & J. 497; Saltmarch v. Barrett, 3 De G., F. & J. 279, 29 Beav. 474; Barrs v. Fewkes, 2 Hem. & M. 60; Hall v. Waterhouse, W. N. (1867) 11; Bird v. Harris, L. R. 9 Eq. 204; Selter v. Cavanaugh, 1 Dr. & Walsh, 668; Neale v. Hagthrop, 3 Bland, 551; Skellinger v. Skellinger, 3 N. J. L. J. 179. (4) In cases of...