Comfort v. Higgins

• Decision Date: 18 December 1978
• Docket Number: No. 60647,60647
• Parties: Hartley B. COMFORT, Clarence R. Comfort, Viola Comfort, Samuel T. Comfort and Edward W. S. Owens, Plaintiffs-Appellants, v. Jennie C. HIGGINS, Lucia Lee Bates, Dr. James L. DeFoe, Rev. William J. Williamson, Rev. S. H. Wainwright, Rev. J. Layton Mauze, Robert M. Nichols, Trustees, St. Louis Women's Christian Association, a pro forma decree corporation, Memorial Home, Inc., a not-for-profit corporation and John M. Dalton, Attorney General of the State of Missouri, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 331

576 S.W.2d 331

Hartley B. COMFORT, Clarence R. Comfort, Viola Comfort, Samuel T. Comfort and Edward W. S. Owens, Plaintiffs-Appellants, v. Jennie C. HIGGINS, Lucia Lee Bates, Dr. James L. DeFoe, Rev.

William J. Williamson, Rev. S. H. Wainwright, Rev. J. Layton

Mauze, Robert M. Nichols, Trustees, St. Louis Women's

Christian Association, a pro forma decree corporation,

Memorial Home, Inc., a not-for-profit corporation and John

M. Dalton, Attorney General of the State of Missouri,

Defendants-Respondents.

No. 60647.

Supreme Court of Missouri, En Banc.

Dec. 18, 1978.

Rehearing Denied Feb. 13, 1979.

Carroll J. Donohue, Alan B. Hoffman, T. Hartley Pollock, St. Louis, for plaintiffs-appellants.

Norman C. Parker, St. Louis, G. Michael Bauer, Asst. Atty. Gen., Jefferson City, for defendants-respondents.

SEILER, Judge.

This cause was transferred pursuant to Mo.Const., art. V., § 10, and rule 83.01 upon certification by a member of the court of appeals, St. Louis district, that the majority opinion, holding that the settlor of the trust involved herein established the same with a general rather than a specific charitable intent, was in conflict with prior opinions of this court and the court of appeals. ¹ Portions of the opinion of the court of appeals and the dissent are used below without quotation marks. We reverse and remand.

Plaintiffs-appellants (appellants) appeal from a judgment against them in two consolidated causes of action. Appellants filed an action, cause No. 217613, on April 10 1957 against respondents St. Louis Women's Christian Association (SWCA), Memorial Home, Inc. (MHI), and the seven trustees named in a trust instrument dated August 29, 1912. The trust made the trustees legal owners of property on which Memorial Home Board, (predecessor to Memorial Home, Inc.), an auxiliary of SWCA, was to establish a Home for the Aged, to be called Baxter Protestant Memorial, in memory of the settlor's father, on the ancestral land of the settlor. Appellants claimed that the trust failed, that it had been established by the settlor with a specific rather than a general charitable intent, and therefore that title to the trust property should be quieted in them as heirs of the settlor either by reversion or by virtue of a resulting trust.

On January 9, 1961, MHI filed an action, cause No. 238649, seeking to quiet title to the real property in it subject to the trust. The two cases were consolidated for trial in 1974.

In August 1975, the trial judge filed his fifty-one findings of fact and twenty-three conclusions of law. He found that the settlor evinced a general charitable intent, the trust had not failed, and that appellants thus had no claim to the property and denied them relief. He quieted title in MHI in fee simple for the charitable and benevolent uses mentioned in the 1912 deed. In addition, the trial court purported to award to MHI the amount paid into the registry of a different division of the circuit court as the result of a public utility condemnation proceeding concerning the property.

The deed by which the settlor, Mourning B. Hardy, set up the trust in question is as follows, in pertinent part:

"This deed made and entered into this the 29th day of August, 1912 by and between Mourning B. Hardy, widow of Robert A. Hardy of St. Louis County, Mo., party of the first part and Jennie C. Higgins, Miss Lucia Lee Bates, Dr. James L. DeFoe, of St. Louis Co., Mo., and Rev. Wm. J. Williamson, Rev. S. H. Wainwright, Rev. J. Layton Mauze, and Robert M. Nichols, of St. Louis, Mo., parties of the second part, and the St. Louis Women's Christian Association, and its auxiliary mentioned in Article II and known as 'Memorial Home,' a corporation, located and doing business in the City of St. Louis, Mo., party of the third part,

"WITNESSETH: That Whereas it has pleased God to give to the party of the first part herein by inheritance from her father, John Baxter, the real estate and property hereinafter described, which was his homestead settled by him in 1836, and upon which is situated his house built of hewn timber by him in 1836; and

"WHEREAS, the said party of the first part is desirous of keeping in living memory the record of his generosity by establishment of a home upon the property hereinafter described for aged men and women and aged men and their wives upon the conditions and such as is carried on by the St. Louis Women's Christian Association in its auxiliary, the Memorial Home, as aforesaid:

"NOW, THEREFORE, in consideration of the premises and the sum of one dollar to the said party of the first part in hand paid by the party of the third part, the receipt of which is hereby acknowledged, the party of the first part does by these presents grant, bargain and sell, convey and confirm, unto the said parties of the second part herein, or their survivor or survivors, successor or successors, upon the trusts, uses and purposes hereinafter designated, subject, however, to an estate therein for the life of the said grantor, Mourning B. Hardy, party of the first part or reserving from said grant unto said Mourning B. Hardy, party of the first part, an estate during her natural life, the remainder after the life estate so reserved to the said grantor herein, in and to the following described real estate situated in the County of St. Louis, State of Missouri, and particularly described as follows to wit:

(a description of the land follows)

"The said second parties herein or their sucessor (sic) or successors, shall suffer the said party of the third part herein to establish upon said premises, under its present rules and regulations, a farm Home for aged men and aged women and aged men and their wives, and to that end and purpose the party of the third part herein shall do all acts and things necessary to provide shelter and subsistence from the cultivation of the soil, or otherwise, to ameliorate the condition of the poor, weak, aged and helpless, as is now presently carried on in the said auxiliary known as the 'Memorial Home' the grant herein, however, is upon the condition that if at the falling in of the life estate herein reserved in favor of said grantor Rebecca Baxter, the widow of Hartley S. Baxter and Mrs. Meekie Kinkead, or either of them, should be alive, then the said Memorial Home and the said beneficiary herein shall cause the said Rebecca Baxter or Mrs. Meekie Kinkead to be cared for with all the necessaries of life found to them and protected in the home intended hereby to be established. And upon further condition that the property herein conveyed and the establishment of the same be forever known as the 'Baxter Protestant Memorial.' The said parties of the second part To Have and To Hold the said above described real estate in trust, as aforesaid, subject to said life estate herein reserved in favor of said grantor, and subject to any incumbrances that may be existing upon said property, and to their successors and assigns forever; . . . "

The property was initially in the name of John Baxter and passed upon his death in 1887 to his children, Hartley Baxter and Mourning Hardy (settlor). In 1894 Hartley Baxter and his wife conveyed their interest to Mourning. Mourning's husband died on February 7, 1912. Settlor died February 25, 1917.

The parties have presented this court with numerous exhibits which recount the history of the usage of the Baxter property. The facts are as follows:

Since about 1881, MHI, one branch of SWCA, has maintained Memorial Home, a residence home for the elderly in the City of St. Louis. In addition to the maintenance of Memorial Home, SWCA has controlled Women's Christian Home (organized 1868), Blind Girl's Home (organized 1867), Russell Home (organized 1907) and Catherine Springer Home (organized 1919).

Upon the death of Mourning B. Hardy, MHI assumed control of the Baxter property subject to a $3,000.00 mortgage which MHI subsequently retired. At the time of Mrs. Hardy's death, the principal building on the property was a house of rough hewn timber constructed in 1836. The two-story house was approximately 30 feet by 40 feet in dimension. It had neither running water, plumbing, electricity nor central heating.

Between 1918 and 1943, MHI made various repairs and improvements to the building, including painting and installation of bathroom facilities. The evidence shows that during these years MHI never used the building as a year-round residence home for the elderly. Rather, small groups of the residents of Memorial Home were taken to the Baxter property for short summer outings between 1918 and 1943. However, for a number of intervening years the building was not even open because the Memorial Home residents preferred the comforts of Memorial Home to the rigorous conditions of the Baxter property, or because those residents who enjoyed the summer outings were considered too frail to go. On account of storm damage in 1939 and severe vandalism, the building deteriorated and a decision was made to demolish it. Since 1943, there has been no structure on the Baxter property.

The acreage surrounding the building has been leased for farming purposes since 1918 and MHI has paid all the taxes. There is evidence that the trustees participated in the management of the property until the last surviving trustee, Dr. DeFoe, died in 1944. SWCA's charter expired in 1932 but was revived in 1937.

In 1955, Memorial Home Board was incorporated as Memorial Home, Inc., (MHI). In 1956 SWCA quitclaimed all of its interest in the Baxter property to MHI. In addition, all assets held by SWCA for the benefit of Memorial Home were transferred to MHI.

Between 1957 and 1974, MHI continued to pay the property taxes on the Baxter property, rejecting all offers of sale, formed a Baxter Road Development Committee, drafted several resolutions endorsing development of a home on the property, and commissioned three sets of architectural drawings and a development feasibility...