Earney v. Clay, 54862
| Decision Date | 08 February 1971 |
| Docket Number | No. 54862,No. 2,54862,2 |
| Citation | 462 S.W.2d 672 |
| Parties | Walter EARNEY et al., Appellants, v. David Lee CLAY, Dyral Branson and Crawford County, Missouri, Respondents |
| Court | Missouri Supreme Court |
John L. Woodward, Steelville, for appellants.
G. C. Beckham, Steelville, Charles T. Smallwood, Northern, Williams & Smallwood, Rolla, for respondents.
STOCKARD, Commissioner.
Ethel Clay, the widow of Frank Clay, died on October 2, 1966, leaving no lineal descendants. Except for the payment of debts and placing a marker on her grave, her entire estate, which consisted of real and personal property, was disposed of by paragraph 4 of her will, which in the parts material to the issues on this appeal, was as follows:
'* * * I will, bequeath and devise all of the rest and residue of my property * * * (after same has been reduced to cash as hereinafter provided) in trust, to the then acting County Court of Crawford County, Missouri, to be held in trust by said Court and to its successors in office, in accordance with the provisions of Sections 214.150 and 214.160 and 214.170 and 214.180, Revised Statutes of Missouri 1949, for the purpose of the perpetual care and maintenance of my grave site, and the grave site of my husband, Frank Clay and the grave sites of the Clay family located in the Liberty Cemetery which is situated near Steelville, Missouri, * * *.'
Appellants, heirs at law of Ethel Clay, iled suit to contest her will on the grounds that it violated the rules against perpetuities and restraint on alienation, and that Ethel Clay lacked the requisite testamentary capacity. The verdict of the jury was to sustain the will.
We shall first consider appellants' contention that the provisions establishing the trust are void because they violate the rules against perpetuities and against restraints on alienation.
We are not informed whether the Liberty Cemetery is public or private, but in either event the cemetery as such is not the beneficiary of the trust. The income is to be spent for the improvement and maintenance of only certain graves therein. In the absence of a statute, a bequest for the perpetual care and improvement of individual burial lots is not a bequest for charitable purpose and is void as a perpetuity. Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383; 14 C.J.S. Charities § 14; 15 Am.Jur.2d, Charities § 83; Annotation 47 A.L.R.2d 623. The issue is whether certain statutes in this State result in this trust not being subject to the rule against perpetuities. We shall summarize the applicable statutory provisions except where the exact language should be set forth.
Section 214.140 () provides that it 'shall be lawful' for any person to bequeath or place in trust any real or personal property, or the income therefrom, for the use and benefit of any public or private cemetery in this State, or for 'maintaining, improving or beautifying any grave, lot, * * * in any such cemetery.'
Section 214.150 provides that the county courts of the respective counties of this State shall become trustees of any fund which may be created by any person for the purpose of maintaining in part or whole any public or private cemetery in their respective county, and that when a gift or bequest is made to the county court 'they shall accept the same upon the terms and conditions of said gift or bequest and administer said trust fund as herein provided.'
Section 214.160 provides for the investment of funds received by a county court in trust, and § 214.170 authorizes the court to designate an organization or individual, in certain circumstances, to administer the income from such trusts.
Appellants argue that these statutes do not provide for or authorize an exception to the rule against perpetuities insofar as they apply to private trusts, but instead merely authorize the creation of trusts for the stated purpose subject to the rule. This contention is based in part on the fact that in the above statutes there is no express statement that the trust so authorized may be perpetual.
As stated in 47 A.L.R.2d at pp. 611--612, the rule prohibiting the establishment of a trust in perpetuity for the maintenance and repair of private burial lots led to the enactment of statutes in many states authorizing such trusts, and although we find no case from this jurisdiction expressly construing the above statutes as authorizing such trusts in perpetuity (but see the dicta in Clark v. Crandall, supra), similar statutes have been so construed in other jurisdictions. In some states the statutes expressly provide that such trusts shall not be subject to the rule against perpetuities, State, for Use of Woodlands Cemetery Co. v. Lodge, 41 Del. 125, 16 A.2d 250; In re Pfund's Estate, 93 Cal.App.2d 444, 209 P.2d 52, or that such trusts shall be considered to be on the same basis as a charitable trust, Bronson v. Strouse, 57 Conn. 147, 17 A. 699, or that such trusts may be 'forever.' Huston v. Dodge, 111 Me. 246, 88 A. 888. In at least one state, where apparently there was no statute purporting to exempt trusts for the perpetual care of individual lots from the rule against perpetuites, the courts have held that such a trust is for a charitable use on the basis of general benefit to the community. Nauman v. Weidman, 182 Pa. 263, 37 A. 863. In other states the statutes are in substance the same as in this State, and without exception, so far as our research has discovered, in every such situation the courts have held that the purpose of the statutes was to authorize trusts in perpetuity. See Driscoll v. Hewlett, 198 N.Y. 297, 91 N.E. 784; In re More's Estate, 179 Mich. 237, 146 N.W. 319; Green v. Hogan, 153 Mass. 462, 27 N.E. 413; In re Baeuchle's Will, 276 App.Div. 925, 94 N.Y.S.2d 582; Leaphart v. Harmon, 186 S.C. 362, 195 S.E. 628; Moore's Ex'r. v. Moore, 50 N.J.Eq. 554, 25 A. 403; In re Bartlett, 163 Mass. 509, 40 N.E. 899; In re Schuler's Estate, Surr.Ct. 24 N.Y.S. 847.
Iglehart v. Iglehart, 204 U.S. 478, 27 S.Ct. 329, 51 L.Ed. 575, involved the construction of a statute of the District of Columbia similar to that in Missouri. In this State the rule against perpetuities is a part of the common law, but in the District of Columbia it was set forth in a statute which had been enacted subsequent to the statute which authorized trusts for the maintenance of burial lots. It was held that the statutes must be read together, and that 'That policy, as indicated in the section (authorizing a trust for maintenance of a cemetery lot), permits in the District exactly what is provided for in this will,--namely, a trust to a cemetery (incorporated) association for the maintenance of a lot and a monument in perpetual good order and condition.'
In Green v. Hogan, supra, the statute authorized a bequest to towns and cities to be held in trust for the maintenance of burial lots therein, but did not expressly state that the trust could be perpetual. The court held that the 'most reasonable construction of these statutes is that the legislature regarded the maintenance and improvement of cemeteries and cemetery lots, whether, in a legal sense, they were public or not, as a matter which concerned public interests, and intended that property might lawfully be given and held in perpetual trust for the preservation of burial lots in cemeteries, whether the cemeteries were public burial places or not, * * *.' We note that in the statutes of this State under consideration, the county court is authorized to accept gifts and bequests 'upon the terms and conditions of said gift or bequest,' and Ethel Clay provided in her will that the purpose was for 'the perpetual care and maintenance' of the designated graves. In Driscoll v. Hewlett, 132 App.Div. 125, 116 N.Y.S. 466, it is pointed out that such a provision in the New York statute had been eliminated by amendment, yet the court still held that the trust for the care of the testator's burial lot should be perpetual, and on appeal, Driscoll v. Hewlett, 198 N.Y. 297, 91 N.E. 784, it was said that 'Unless such a construction be given to the statute as to permit of a perpetual trust, * * * it would have little value.'
We agree with what we find to be the uniform construction of statutes of other states which are similar to those under consideration and we conclude that the intention of the legislature in enacting those statutes was to authorize such trusts to be in perpetuity. If trusts such as we have under consideration are subject to the rule against perpetuities, the care of cemetery lots could extend for only twenty-one years because there are no lives in being, and the instrument creating the trust would have to so limit the duration or the attempted trust would be void. Except that perhaps the county court could not act as trustee, a trust for such purpose, with an authorized trustee, could have been created for a period of twenty-one years without the aid of the statutes. §§ 214.160 and 214.170 must be read together, and when we do so, we are constrained to conclude that the legislature could not and did not intend the result contended by appellants.
Appellants also contend that the provisions of the will creating the trust is void because they are in violation of the rule against the suspension or restraint on alienation of property. They cite Missouri State Highway Commission v. Stone, Mo.App., 311 S.W.2d 588, and Magee v. Mercantile-Commerce Bank and Trust Co., 343 Mo. 1022, 124 S.W.2d 1121. The rule relied on is one of common law. In the Stone case it was held that what is referred to as a 'pre-emption agreement' which extended indefinitely to the heirs and assigns of the parties the right to purchase land at a stipulated price was void because it constituted an unreasonable restraint on alienation. In the Agree case, an agreement to repurchase bonds was held to be limited to a reasonable time; in that case to the period of...
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