Crow v. Clay County

• Decision Date: 29 March 1906
• Parties: CROW, Atty. Gen., v. CLAY COUNTY et al.
• Court: Missouri Supreme Court

95 S.W. 369

196 Mo. 234

CROW, Atty. Gen., v. CLAY COUNTY et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1906.

Rehearing Denied May 22, 1906.

1. CHARITIES—NATURE.

A bequest for the tuition or education of poor children under the age of 16 years of age within a certain district is a charity.

2. SAME—ADMINISTRATION—ACTION—PARTIES.

A trust created by a bequest for the tuition and education of poor children under the age of 16 within a certain district is perpetual, and in no event can revert to the testator's heirs; and hence they are not necessary parties to a suit relating to the administration of the trust.

3. SAME—TERMINATION—CHANGE OF CONDITION.

The establishment of a system of free public schools to be supported by the state fund and by local taxation, but which was not compulsory on individual districts, and where school might be maintained for only part of the year, did not so certainly meet the purposes of a testator who left a bequest for the tuition and education of poor children under 16 years of age within a certain district as to require the removal of the restrictions as to age and territory within which the fund might be applied.

4. SAME—ADMINISTRATION.

Where a testator made a bequest for the education of poor children under 16 years of age within a certain district, the application of the fund by co-operation with a public school district was not objectionable because it might incidentally lessen the burden of taxation upon the rich as well as the poor.

5. SAME—CONSTRUCTION—PARTICULAR WORDS.

A bequest for the education of "orphans or poor children" means orphans without estate to pay for such education and children whose parents are living, but are too poor to pay for it.

6. SAME—TERRITORIAL EXTENT.

A bequest for the benefit of poor children residing at or within two miles of the town of Liberty refers to the town as it existed at the time of the execution of the will, and not as it might afterwards be constituted.

7. SAME — ADMINISTRATION — DELEGATION OF POWER.

A decree authorizing a county court acting as trustee of a fund for the education of poor children within a certain district to cooperate with a public school district was not objectionable as authorizing the delegation of the trust to the school district.

Appeal from Circuit Court, Clay County; Joshua W. Alexander, Judge.

Information by Edward C. Crow, Attorney General, on the relation of Allen B. Jones and others against Clay county, as trustee of the Aull School Fund, and others. From a decree in favor of defendants, an appeal is taken. Affirmed.

This cause is here upon appeal from a decree of the Clay county circuit court in respect to the administration and management of a trust fund provided for by the last will and testament of John Aull, deceased. We have carefully considered the entire record in this cause and find that this case, as well as the contention of the respective parties, is fully and fairly stated in the opinion of the trial court. In fact the crucial question with which this court is confronted, is the correctness or incorrectness of the decree rendered which is predicated upon the conclusions of law announced by the trial judge in his opinion. If the opinion as rendered by Judge Alexander is a correct announcement of the legal propositions involved in this proceeding, or if his conclusions upon the case stated are correct, then this decree of the trial court should be affirmed; otherwise, it should be reversed. As the opinion fully and fairly states this controversy and discusses about all of the vital legal propositions presented, we here reproduce it in full. It is as follows:

"This is a proceeding by information by the Attorney General of Missouri, at the relation of Allen B. Jones, James Love, Alexander B. Crawford, Abram T. Litchfield, and Trigg T. Allen, against Clay county, as trustee of the Aull School Fund, and the heirs of John Aull, deceased, naming them. The information alleges, among other things: That on the 24th day of January, 1842, John Aull, late of Lafayette county, Mo., departed this life, having made a will, which was duly admitted to probate before the county court of said Lafayette county, in vacation, said county court having probate jurisdiction, on the 22d day of February, 1842. That the executors thereupon duly qualified and entered upon the discharge of their duties, and afterwards, at the June term of said county court, 1842, the action of said clerk in vacation in relation to the probate of said will was duly confirmed by said court. That on the 3d day of March, 1846, said executors filed a certified copy of said will in the office of the circuit clerk and ex officio recorder of deeds of said Clay county, and the same is duly recorded in book 1 at page 167. That said John Aull, in said will, bequeathed to defendant Clay county, by the name and description of the county court of Clay county, the sum of $1,000, to be loaned on real estate security of ample value, and free from all incumbrances, and at the highest legal interest, and to be continued at interest perpetually, and the interest accruing thereon to be applied under the direction of the county court of said Clay county, to pay the tuition or education of orphans or poor children under the age of 16 years, at or within two miles of the county seat of said Clay county. That at the date of the execution of said will, as well as at the time of the death of said John Aull, and the probate of said will, the town of Liberty was the county seat of said Clay county, with certain limits or boundaries in said petition alleged, and that said town, by virtue of an act of the General Assembly of Missouri, approved February 27, 1851 (Laws 1850-51, p. 98) entitled, `An act to incorporate the city of Liberty,' was incorporated as a city with territorial limits described in said act as follows, to wit: `All that district of country contained within one square mile, of which the courthouse of Clay county in the town of Liberty is the center, the sides of said square being respectively, parallel to the corresponding sides of said courthouse,' and that said district, one mile square, embraces the whole of the territory of the town (now city of Liberty), and that said city of Liberty is now, as has been since February 27, 1851, the county seat of Clay county, with the terminal limits aforesaid. That by virtue of an act of the General Assembly of Missouri, approved February 25, 1845 (Laws 1844-45, p. 55), entitled `An act to authorize the county court of Clay, Ray, Jackson and Lafayette counties to execute certain trusts,' the said Clay county (by and through the county court thereof) was authorized and empowered to receive said bequest of one thousand dollars, and execute said trust, said bequest being designated in said act as the `Aull School Fund'—a name and description by which said fund has ever since been known. That on the 29th day of July, 1845, said bequest was paid to the county treasurer of said Clay county; and that since said last-named date the county court has managed, controlled, and loaned said fund on behalf of said Clay county. That said original bequest has been preserved intact, and has been allowed to accumulate until same now amounts to about the sum of $14,350, and made copy of the items set out particularly in the petition.

"It is further alleged in the information, that since the date of said will, and the death of said John Aull, a vast revolution has occurred in Clay county, as well as throughout the entire state of Missouri, in matters relating to the tuition and education of the youth, a matter which has not and could not have been anticipated by said John Aull, summarized as follows: That at the said time the county of Clay, as well as the state of Missouri, were wholly without an effective public school system, and that the public funds available for school purposes were inadequate to support schools in the area of the operation of said fund, the schools being sustained largely by voluntary contributions, or tuitions, paid by parents, the result being that the children of the poor often remained uneducated, and that said bequest was made to supply in a measure such need. That by virtue of article 9 of the Constitution of 1865, and the acts of the General Assembly entitled `An act to provide for reorganization, supervision and maintainance of common schools,' approved March 29, 1866 (Laws 1865-66, p. 170), and `An act authorizing any city, town, or village to organize for school purposes with special privileges,' approved March 15, 1866 (Laws 1865-66, p, 190), and an act entitled `An act supplementary to and explanatory of an act entitled, "An act authorizing any city, town, or village to organize for school purposes, with special privileges," approved March 19, 1866 (Laws 1865-66, p. 194),' enforcing said article 9, the state of Missouri abandoned the old, voluntary system of education and adopted and put in operation the system of free public schools for the education of her youth, supported by taxation, which system has ever since been in force in this state, including Clay county, and that a portion of the territory embraced in the operation of said fund, of said Clay county, including the city of Liberty, was, pursuant to an act approved March 15, 1866, organized into a public-school district, known as `District No. 2, Township No. 51, of Range No. 31.' That said district still exists, and embraces about 8 1-6 square miles, and that the territory covered by the scope of said trust embraces an area of about 21.56 square miles. That the effects of the adoption by the state of the free public school system within the area comprised within the action of the charity of said John Aull were these: (1) The free public schools, by reason of their incomes from the school fund and taxation have been at all times able to furnish to the orphan, or poor children under the age of 16 years,...