First Baptist Church v. Robberson

• Decision Date: 31 October 1879
• Citation: 71 Mo. 326
• Parties: FIRST BAPTIST CHURCH, Appellant, v. ROBBERSON.
• Court: Missouri Supreme Court

71 Mo. 326

FIRST BAPTIST CHURCH, Appellant,

v.ROBBERSON.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

The plaintiff filed a petition in the circuit court of Greene county which was substantially as follows: That plaintiff is a corporation duly incorporated and organized under the general laws of the State of Missouri; that on the 26th day of October, 1870, Harriet Bailey made and published her last will, as follows: * *

Second. I hereby bequeath the sum of $5,000 to be expended in the erection of a church edifice in the city of Springfield, to be used and enjoyed by the Baptist society forever as a church. It is my will that said money be expended under the direction and management of three discreet persons, to be appointed by said Baptist church. I further devise to said society, or church, one acre of land to be selected by three discreet persons, to be appointed as aforesaid, upon which said church edifice shall be erected, the said land and church edifice to remain the property of the Baptist church or society in the city of Springfield forever. I also hereby bequeath the sum of $1,000 to said Baptist church in the city of Springfield, in trust for the following uses, to-wit: The proper officers or trustees o said church shall take charge of said sum of $1,000 and shall keep the same at interest on good securities, and shall apply the annual interest arising therefrom to the support of the minister for the time being in charge of the church to be erected as hereinbefore provided for. * *

Sixth. It is my will, and I hereby devise and bequeath all the balance of my estate, both real and personal, to the Baptist church in the city of Springfield, upon the following conditions and for the following uses and purposes, to-wit: To be used for the erection of a seminary of learning for the use of misses and young ladies exclusively, this devise and bequest not to take effect until the said church shall raise in addition to the amount herein bequeathed and devised, to be used for the same purpose, twice the amount of this bequest or devise. My executor is hereby directed to pay over to such discreet persons, not less than three in number, as such church may appoint for the purpose, the amount of this legacy, as soon as the same can be ascertained and collected, if at that time he shall be satisfied that said church has received twice that amount from other sources, to be used in the erection of a seminary, as hereinbefore provided, in Springfield.

Seventh. In case the money to be raised by the Baptist church, in order to comply with the conditions of the legacy mentioned in the last preceding item, is not secured in good faith within one year after the amount of this legacy shall be ascertained, then it is my will that all the property, both real and personal, mentioned in item sixth, shall go to Dr. E. T. Robberson, & c., &c.

That on the 7th day of July, 1873, said Harriet Bailey departed this life; that on the 17th day of October, 1873, said will was duly admitted to probate before the probate and common pleas court of said Greene county, and the respondent, E. T. Robberson, the executor named in said will, duly qualified as such executor and thereafterward entered upon the discharge of his duties as such executor, and has ever since been and was at the commencement of this suit the legal and acting executor of said will; that the other defendants are legatees and devisees under said will and legal heirs of said testatrix; that the plaintiff is the Baptist church mentioned in said will; that there are conflicting claims set up to the same property under the provisions of said will, and that the rights of the plaintiff under and by force of each of the before named clauses and items of said will is the subject of controversy with the executor of said will; that appellant is in doubt as to how and by whom the acre of land devised to plaintiff in the second item of said will shall be selected; and when and by whom the amount of the devise and bequest to plaintiff in the sixth item in said will shall be ascertained and determined; and when and to whom said last named devise and bequest in said item sixth in said will shall be paid over by said executor; and when the year mentioned in the seventh item of said will will commence, within which the appellant is to secure from other sources to be used in the erection of the seminary the amount mentioned in the sixth item of said will; that said testatrix died leaving real estate of the value of $20,000, describing it; and personal property of the value of $40,000. And praying the advice and direction of the court as to the proper and just construction and effect of the several clauses of said will and the rights of the devisees and legatees under the same, and the duties of the executor in the performance of the trusts by force of said will.

The defendants filed a demurrer to this petition, setting up the following grounds of objection: 1. The petition states no facts entitling plaintiff to equitable relief. 2. No facts are stated in said petition showing uncertainty or ambiguity in any of the provisions of said will under which plaintiff can claim. Nor does it appear that there is any ambiguity, doubt or uncertainty in the meaning of any of the provisions of said will requiring the aid of a court of equity to construe them. 3. It is not averred in said petition, nor does it appear that plaintiff at the date of the execution of said will had any legal existence or being. 4. If plaintiff has any interest at all under said will, she has a complete and adequate remedy at law. 5. The devisees and legatees of the said will having a complete remedy at law, this court has no jurisdiction at their suit or at the suit of any one of them to construe said will. 6. No facts are stated by plaintiff in her petition authorizing a construction of said will at her suit. 7. The said bequest of $5,000 to erect a church edifice, named in the first clause of said will, is void. And the said bequest of $1,000 to said Baptist church in the city of Springfield, named in second clause of said will, is likewise void. And the residuary clause of said will, devising and bequeathing the residue of testatrix's property to said Baptist church, is also void, and no suit can be maintained to construe any of said clauses. 8. There is no doubt, ambiguity or uncertainty of and concerning the said devise of one acre of land, named in the first clause in said will, requiring the aid of a court of equity. 9. Because this court has no original jurisdiction over this suit.

The demurrer was sustained and final judgment entered for the defendant. Plaintiff appealed. The case was twice argued in this court.

C. W. Thrasher and H. C. Young for appellant.

C. B. McAfee and Chas. A. Winslow for respondent.

On Rehearing.

I.

1. VALIDITY OF DEVISES AND BEQUESTS TO CHURCHES UNDER CONSTITUTION OF 1865.

SHERWOOD, C. J.

Upon more mature reflection. I am satisfied that the view expressed by us in a former opinion, that the bequest in Harriet Bailey's will, whereby she bequeathed $5,000 to be used in erecting a church edifice on an acre of ground also devised by the will to the Baptist church or society in the city of Springfield, was a valid bequest, was an erroneous, though plausible, view of the subject.

The 13th clause of the 1st article of the constitution of 1865 prohibits, in express terms, every gift, sale or devise of land, and every gift, sale or bequest of goods and chattels for the use, benefit or support of any minister, &c., or of any church, &c. The only exception made to the above comprehensive prohibitions is that exception which permits the gift, sale or devise of the quantity of land mentioned in the next preceding clause of the article. By that clause, one acre of ground is the limit in quantity of land which any church may hold in a town or city. With the wisdom or unwisdom of these constitutional provisions we have no concern. That was a matter confided to the framers of the constitution of 1865, and we have only to obey its behests. One thing which greatly contributed to our error on this point, on a former occasion, was our unwillingness to believe that the framers of that constitution, while permitting the donation or devise of an acre of ground to a church organization, would yet, at the same time, absolutely cut off and prohibit every gift, bequest or devise, whereby such donation or devise could be rendered of any benefit to the church or religious society to which it might have been made. But we are now fully convinced that the bequest of $5,000 for the purposes of a church building, and the bequest of $1,000 for the support of a minister, which last we held invalid before, must both occupy the same position, and be held alike obnoxious to the provisions of the constitution before mentioned, thus falling within the ruling made in Kenrick v. Cole, 61 Mo. 572, and Schmucker's Estate v. Reel, 61 Mo. 592.

II.

It is altogether unnecessary to discuss the validity or invalidity of the 6th clause of the will of the testatrix relative to the establishment of a seminary for young ladies, for the reason that it is not averred in the petition, but that the amount of the bequest specified therein has been ascertained and collected, the year elapsed after such ascertainment and collection, and yet the sum required to be secured by the church within that time, in order to obtain the legacy, not so secured. It would, therefore, be useless to discuss what would be the rights of the plaintiff in the premises, when it does not appear whether the conditions have been performed, upon whose performance alone these rights must depend. The remark, however, may be ventured, that, even if the averment just mentioned had been made, showing a full compliance with the conditions specified, it is to the last degree doubtful whether the constitutional...