Cummings v. Dent

• Decision Date: 01 December 1916
• Docket Number: No. 17671.,17671.
• Parties: CUMMINGS et al. v. DENT.
• Court: Missouri Supreme Court

189 S.W. 1161

CUMMINGS et al. v. DENT.

No. 17671.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by Lou Cummings and others against E. F. Dent, executor, etc., of estate of William P. Cummings, deceased. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded.

G. C. Dalton, of Salem, for appellant. Wm. P. Elmer and C. R. Hayes, both of Salem, for respondents.

BOND, J.

I. This action is by the wife and three children of the testator to construe his will and adjudge the following paragraph thereof void, viz.:

"Third. The remainder of my estate, real, personal and mixed, whether owned by me now or hereafter acquired, I direct to be sold by my executor (the real estate to be sold in lots as I have described in sheet No. 2 of this instrument) and the proceeds thereof I give, devise and bequeath to be equally divided to and among the Foreign Mission Board of the Southern Baptist Convention, the Home Mission Board of the Southern Baptist Convention, and the State Board of Missions of the General Association of the State of Missouri, as follows to wit: One-third of said proceeds to each of said institutions."

The petition alleges the relationship of the parties, the death of the testator in March, 1912, the probate thereafter of his will, the qualification of the defendant as executor, and that he is attempting to carry out the directions of the above clause of the will. The petition also alleges none of the organizations mentioned in the devises in the will have "any legal existence," wherefore it prays that the attempted devise to them be adjudged to be void, and for general relief. The defendant executor demurred and thereafter answered, admitting the making and probation of the will and that the plaintiff children were the heirs at law of the testator, and the qualification of the defendant as executor. It then averred the devisees named in paragraph 3 of the will were interested in the action, and ought to be named parties, and denied the other allegations of the petition. On the trial only one witness, the defendant executor, was called. He testified that he knew of no such organizations in Dent county, Mo., as were named in paragraph 3 of the will; that he was about to sell the land, as executor, and would probably have sold it except for the filing of this suit; that the testator had lived in Dent county for 25 years before his death. Upon this evidence and the language of the will, the court gave judgment for the plaintiffs, from which defendant duly appealed.

II. The bequest of the proceeds of the sale of certain town lots referred to in the will was intended to be a charity for the benefit of that portion of the public reached by the efforts of the Foreign Mission Board, the Home Mission Board, and the State Mission Board; the first two boards as they were constituted by the Southern Baptist Convention and the third, by necessary implication, as constituted by the General Association (of the Baptist Churches) of the state of Missouri. No other interpretation can be given to the third paragraph of the will in the light of its contents and the language of the entire instrument. The testator plainly designed to divide equally between these three bodies the proceeds arising from a sale of his land. Assuming that such separate organizations would exist after his death, he intended to give to them, for the uses and purposes of their creation, an equal share of the money coming into the hands of the executor from the sale of the lots.

The nature of the gift is solved by the language used. There is no quarter of the globe, at home or abroad, which has not been penetrated by mission workers sent by Christian churches to propagate the Gospel and ameliorate human suffering. These emissaries form a body of workers which reaches an indefinite public. A gift to them or to support their efforts is therefore, in the strictest sense, within the definition of a public charity which exists "when a benefit is conferred...