Corby v. Corby

• Decision Date: 31 October 1884
• Citation: 85 Mo. 371
• Parties: CORBY et al., Appellant, v. CORBY et al.
• Court: Missouri Supreme Court

85 Mo. 371

CORBY et al., Appellant,

v.CORBY et al.

Supreme Court of Missouri.

October Term, 1884.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Doniphan & Reed and A. H. Vories for appellants.

(1) Those portions of the will in question which seek to enjoin a trust upon Mrs. Corby, by which parts of the testator's estate were to be disposed of to advance the cause of religion and promote the cause of charity, in such a manner as to meet the views of the testator secretly communicated at some time by said testator to Mrs. Corby, were void, because such parts were not reduced to writing and duly attested by the subscribing witnesses, as required by the statutes of this state. R. S., sec. 3962; 1 Jarman on Wills (5 Ed.) 409, 410, Schmucker's Estate v. Reel, 61 Mo. 598; Phelps v. Robbins, 40 Conn. 251. (2) The disposition of the testator under the provision in question is a mystery. The supplementary testament rests in parol, but parol testimony of such disposition cannot be admitted to supplement the writing. 1 Jarman on Wills (5 Ed.) star page 410, and cases cited; Tucker et al. v. The Seaman's Aid Society, 7 Met. 188; Bradley v. Bradley, 24 Mo. 312; Gregory et al. v. Cowgill et al., 19 Mo. 415; 48 Mo. 292; 19 Mo. 416; 14 Cal. 110; 6 Conn. 274. (3) The provision in question is void for uncertainty. In every will creating legacies or trusts there should be such certainty as will enable the court to carry them out. Where such uncertainty exists that the court cannot see what object the testator had in view, or for what he intended to provide, then the legacy or trust must fail. Bequests for purposes of benevolence and general liberality, such as the trustee shall approve or direct, cannot be supported either as general trusts or for charitable uses. Schmucker's Estate v. Reel, 61 Mo. 592; 2 Perry on Trusts (3 Ed.) sec. 729; 1 Perry on Trusts (3 Ed.) sec. 253; 9 Vesey, 399; 10 Ves. 521; Wheeler v. Smith, 9 How. 79-80; Gilbert v. Chapman, 19 Conn. 347; White v. Fiske, 21 Conn. 257; 22 Conn. 55; 4 Am. L. Reg. (old series) 526; 2 Story Eq., secs. 979 a, 979 b.; 1156-1183; 1 Jarman on Wills (5 Ed.) star page 383, sub-div. 5; Wilderman v. Mayor and City Council of Baltimore, 8 Md. 551; 4 Harr. and Johns. 446. (4) The object and purpose of the testator in employing such vague and indefinite expressions as “to advance the cause of religion and to promote the cause of charity” was to evade the inhibitions of section thirteen of article one of the constitution of 1865. This the petition concedes and the provision in question is, therefore, void. Schmucker v. Reel, 61 Mo. 592; Kenrick v. Cole, 61 Mo. 572. (5) This provision, then, being pronounced void by the constitution of 1865, and the estate of the heirs not having been divested by it the fact that the constitution of 1875 gave no place to this prohibition, can not have the effect of making valid, what was before void, so as to divest the estate of the heirs in this property. McCarthy v. Hoffman,23 Pa. St. 508-509; Alter's Appeal,67 Pa. St. 344-345; Greenough v. Greenough,11 Pa. St. 489; Hilliard v. Miller,10 Pa. St. 338; Snyder v. Bull,17 Pa. St. 58; State to use of Trustees M. E. Ch. v. Warren et al., 28 Md. 355, top page; Const. Mo., 1865, art. 1, sec. 28; Const. Mo., 1875, art. 2, sec. 15. (6) Nor is this a case where the doctrine of cypres applies. It applies only where the object is known and certain, but fails entirely, or ceases to exist, or is impossible of execution for some reason or objection encountered in its execution and outside of the will. Then the court will designate some other cognate charitable use to which the bequest can be applied. Academy, etc., v. Clemans, 50 Mo. 171; 2 Perry on Trusts, 727, 729; Jackson v. Phillips, 14 Allen 539. (7) Mrs. Corby only took a life estate in the property. Hazel v. Hagan, 47 Mo. 281; Norcum v. D'Oench et al., 17 Mo. 99; Ruby et al. v. Barnett, 12 Mo. 3; Green et al. v. Sutton et al., 50 Mo. 192; Bryant, Adm'r, v. Christian, Adm'r, 58 Mo. 98.H. L. Warren and Alex. Davis for appellants.

(1) It was the manifest intention of the testator to impose or create a trust in order “to advance the cause of religion and promote the cause of charity.” The devise was impressed with the character of a trust for the purposes named and the fact that the objects intended to be benefited are not designated with certainty and clearness does not destroy its character as such. Schmucker's Estate v. Reel, 61 Mo. 592; Williams v. Williams, 1 Simon (N. S.) 358; 2 Roper on Legacies, by White, ch. 21, sec. 6, et seq.; Lewin on Trusts, ch. 5, p. 77, et seq.; 2 Story Eq. Jur. (12 Ed.) sec. 1068 b, et seq.; Gordon v. Green, 10 Ga. 354; Norman v. Burnett, 25 Miss. 183; 2 Fonbl. Ch. sec. 4; Hill on Trustees, 101; Wigram on Wills, 33; 2 Redfield on Wills (2 Ed.) 410; Jarman on Wills, 336; 2 Pomeroy Eq. Jur. p. 571, sec. 1009, et seq.; 2 Sugden on Powers (top p.) 158, sec. 34; Erickson v. Willard, 1 N. H. 217; Collins v. Carlisle, 7 B. Monroe, 14; Bull v. Bull, 8 Conn. 47; Bernard v. Minshull, Johnson (Eng. Ch.) 276. It is apparent that the testator appreciated, practically, the distinction between powers, which are never imperative, and trusts, which are always obligatory. 2 Sug. on Powers (top p.) 158, sec. 34; 2 Story Eq. Jur., sec 1070, and notes; Hill on Trustees (2 Ed.) 72; 1 Williams on Executors, 88; Brown v. Higgs, 8 Vesey, 708; Burrow v. Philcox, 5 Myl. and Cra. 73; Pushman v. Filliter, 3 Vesey, 7; Morice v. Bishop of Durham, 10 Vesey, 536. (2) The trust intended is void and the property descends to the testator's heirs. Schmucker v. Reel, 61 Mo. 597; Morice v. Bishop, etc., 9 Ves. 399; Mayor v. Wood, 3 Hare 131; Chamberlain v. Sterns, 111 Mass. 276; Ruth v. Oberbrunner, 40 Wis. 254; Nicols v. Allen, 130 Mass. 211; Olliffe v. Wells, 130 Mass. 221; Briggs v. Penny, 3 DeGex and Sm. 525; 3 Mac. and G. 546. (3) Neither the statute of 43 Elizabeth, nor the doctrine of cypres is applicable. Chambers v. St. Louis, 29 Mo. 549; State v. Prewett, 26 Mo. 165; Academy v. Clemens, 50 Mo. 157; Schmidt v. Hess, 60 Mo. 595; First Bap. Church v. Robberson, 71 Mo. 333.

Thomas Thoroughman for appellants.

(1) The petition admits that the devisee, Amanda Corby, is entitled to a provision out of the estate for her wants and comforts during her natural life; beyond this she holds the property as trustee and the heirs at law are the real owners. “No particular form of words is necessary to create a trust. It will be sufficient if the intention be manifest that the donee shall not have the sole, beneficial interest in the property.” Gordon v. Green, 10 Ga. 354; Norman v. Bennet, 25 Miss. 183. Any language in writing clearly expressive of a trust intended by a party, although in the form of a desire or request or recommendation, creates a trust. 2 Story's Eq. secs. 972, 1068; Hill on Trustees, 101; Wigram on Wills, 33; Schmucker v. Reel, 61 Mo. 593; First Bap. Church v. Robberson, 71 Mo. 326: Briggs v. Penny, 3 DeGex and Sm. 525; Morice v. Bishop, 9 Ves. 399. (2) It is plain that the trusts created by the will are invalid. Nothing. is better settled than that the special wishes and directions of a testator, whether oral or written, which are not embodied in his will, are inadmissible in evidence and form no part of the will. Schmucker v. Reel, supra; Briggs v. Penny, supra; Morice v. Bishop of Durham, 9 Ves. 399; Bridges v. Pleasants, 4 Seldon Eq. 26; White v. Fisk, 22 Conn. 31. (3) The statute of 43 Elizabeth, chapter four, furnishes no assistance and it is of no importance whether it be recognized as in force in this state or not. That statute neither created nor inhibited charities. It only provided for the enforcement of certain valid charitable gifts. Ould v. Washington Hospital, 5 Otto 303; Vidal v. Philadelphia, 2 How. 128; Fontaine v. Ravenel, 16 How. 379; Schmidt v. Hess, 60 Mo. 595; 2 Story's Eq. Jur., sec. 1187. Nor can the doctrine of cypres or parens patrie be invoked. Fontaine v. Ravenel, supra; White v. Fisk, 22 Conn. 53; Andrew v. N. Y. Bible Society, 4 Sandf. 56; Williams v. Williams, 17 How. 382. (4) The clause in regard to aid and assistance to relatives creates no valid power and imposes no valid trust. 2 Sugden on Vendors (3 Am. Ed.) sec. 145; Story's Eq. Jur., sec. 1070; Pushman v. Filliter, 3 Ves. 7; Brown v. Higgs, 8 Ves. 569. Powers are never imperative; they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative and are obligatory on the conscience of the party intrusted. Brown v. Higgs, 5 Ves. 708; Barrow v. Philcox, 5 Myln. and Cra. 73; Hill on Trustees (2 Ed.) 72; 1 Williams on Executors, 88. (5) Mrs. Corby has no valid power of conveyance under the last clause of the will.

Jeff. Chandler for appellants.

(1) All of the will, except that which provides for the payment of the testator's debts and for the wants and comforts of Mrs. Corby, is void for uncertainty. The first uncertain provision in the will relates to the relatives of the testator. It contemplates and requires that Mrs. Corby shall give them such portions of the estate as her sense of justice may require her to give and such as the testator had expressed to her a desire that she give his relatives. It is uncertain who of his relatives were in his mind and what shares of his estate they were to receive. Parol evidence cannot be introduced to make the will in that respect more certain. 1 Greenl. Evid., sec. 289. (2) The uncertainty in amount, which is by the will, to go to some relatives of John Corby, renders the amount that will be left, the balance to be devoted to charity and religion uncertain, because that balance cannot be ascertained until the amount to be given to the relatives is first known and deducted. 2 Perry on Trusts, sec. 714; 1 Jarman on Wills. (Ed. 1861) 195, 196. (3) Under the laws of Missouri a court of equity cannot act as a board of distribution of...