German Evangelical St. Marcus Congregation of St. Louis v. Archambault

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705 (Mo. 1966)
• Decision Date: 11 July 1966
• Docket Number: No. 1,No. 51701,51701,1
• Parties: The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS, a Corporation, Appellant, v. Esther ARCHAMBAULT et al., Respondents

Page 705

404 S.W.2d 705

The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS a Corporation, Appellant, v. Esther ARCHAMBAULT et al., Respondents.

No. 51701.

Supreme Court of Missouri, Division No. 1.

July 11, 1966.

Melville A. Ochsner, St. Louis, for appellant.

Herman M. Katcher, Orville Richardson, W. Donald Dubail, Eugene H. Buder, Josephus Todd, St. Louis, for respondents.

HIGGINS, Commissioner.

Appeal from an award of $37,000 in attorneys' fees to certain respondents and against appellant.

A detailed statement may be found in a previous appeal, German Evangelical St. Marcus Congregation v. Archambault, Mo., 383 S.W.2d 704, but for the purposes of this appeal, a brief statement will suffice. Appellant, as owner of Old St. Marcus Cemetery in St. Louis, Missouri, and as trustee of a public charitable cemetery trust, sued respondents as representatives of the class of cemetery lot owners, and the Attorney General of Missouri as representative of the public interest, for a decree authorizing abandonment of the cemetery, removal of remains of persons buried there, and approval of sale of the fee simple title to the cemetery land free of all limitations imposed upon the use of the land for cemetery purposes. The trial court granted the relief requested but the judgment was reversed by the Supreme Court. Thereafter, certain respondents other than the Attorney General petitioned for attorneys' fees for services rendered by their attorneys in the defense of the action and successful prosecution of the appeal. The award was entered in favor of petitioning respondents and against appellant 'as trustee of the Old St. Marcus Cemetery.'

Respondents have moved to dismiss this appeal alleging that appellant's jurisdictional statement fails to set forth facts demonstrating jurisdiction to be in the Supreme Court, and that appellant's points relied on are mere abstract statements of law, all in violation of Civil Rule 83.05(b)(e), V.A.M.R. Appellant has moved for permission to amend the jurisdictional statement and points relied on in a manner that would leave no doubt as to compliance with the rule. Anendment of the brief in the respects noted is authorized, and the motion to dismiss is overruled. Loumar Development Co. v. Redel, Mo., 369 S.W.2d 252, 255(2).

Appellant says that an award of attorneys' fees to certain respondents was improper because the Attorney General is the legal representative of public trusts and he cannot be allowed fees for such services. The Attorney General does, of course, represent the public and the public interest in respect to matters involving enforcement of public charitable trusts, murphey v. Dalton, Mo., 314 S.W.2d 726, 730(1), 67 A.L.R.2d 1278, and he is not entitled to attorney's fees for such services. Thatcher v. City of St. Louis, 343 Mo. 597, 122 S.W.2d 915, 918(4); Ex parte Blackmon, 238 Ala. 369, 191 So. 356, 359(4). He does not, however, represent each and every member of the public, particularly where private interests exist, in which case 'those with a special interest may enforce the trust, or a localized or grouped charity may be enforced by a class suit.' Cickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 281(3), 62 A.L.R. 858; Murphey v. Dalton, supra; Seitzinger v. Becker, 257 Pa. 264, 101 A. 650, 651(1); Scott on Trusts 2d, § 391, p. 2758; Rest., Trusts 2d, § 391, p. 279.

Appellant, itself, did not consider the Attorney General to be the only necessary party in this action, but instead brought respondents into the suit alleging them to have similar interests with, and to be adequately and fairly representative of, all owners of rights of interment and perpetual care, and they proved their value and special interest by taking measures, including employment of counsel, necessary to preserve the trust against the effort of the trustee (appellant) to destroy it. Generally, beneficiaries in a charitable trust have a right to maintain suit to enforce the trust or prevent diversion of its funds, 10 Am.Jur., Charities, § 117, p. 670, and even though in Missouri the purchaser of a cemetery lot does not acquire an estate in fee but merely an easement or privilege of burial, Billings v. Paine, Mo., 319 S.W.2d 653, 656(4--6), Wooldridge v. Smith, 243 Mo. 190, 147 S.W. 1019, 1022(3), 40 L.R.A., N.S., 752, German Evangelical St. Marcus Congregation v. Archambault, supra, 383 S.W.2d l.c. 710(2, 3), lot owners (or their representatives) have such special itnerest as to justify respondents' defense of the trust in the original suit. As said in Tracy v. Bittle, 213 Mo. 302, 112 S.W. 45, 49(4): 'The plaintiff, having near relatives buried in this graveyard, has a peculiar right in the maintenance of this public use and in preventing an obstruction to the public use. In such case he can maintain the action, * * *.' The rule is well stated in Bogert, Trusts and Trustees, § 414, pp. 345, 346: 'A case of somewhat similar type is that of a cemetery trust when regarded as charitable. There the lot owners, persons who are entitled to have their dead buried there, or who already have friends or relatives interred in the cemetery, all may be said to have a definite interest in the trust. Other members of the public may also receive benefit, through the opportunity to buy lots, or otherwise; but the lot holders and others similarly situated are clearly already benefited and interested in the upkeep of the cemetery. Such interest may be regarded as sufficient to enable them to sue to compel execution of the cemetery trust.' These authorities show a clear entitlement in respondents to protect their special interests and to enforce the public cemetery trust by defending against appellant's effort to invade and destroy it. See also 14 C.J.S. Cemeteries § 25, p. 85; Jackson, The Law of Cadavers, p. 362; Steele v. Rosehill Cemetery Co., 370 Ill. 405, 19 N.E.2d 189; Brown v. Hill, 284 Ill. 286, 119 N.E.977, 980(1--5); Hertle v. Riddell, 127 Ky. 623, 106 S.W. 282, 15 ,L.R.A., N.S., 796; Mills v. Carolina Cemetery Park Corp., 242 N.C. 20, 86 S.E.2d 893, 899(8); Smith v. Ladage, 397 Ill. 366, 74 N.E.2d 497, 500(7); Seitzinger v. Becker, supra; Houston Cemetery Co. v. Drew, 13 Tex.Civ.App. 536, 36 S.W. 802, 805. Such rights have been particularly expressed as the right to protection of the grave after burial, Brown v. Maplewood Cemetery Assn., 85 Minn. 498, 89 N.W. 872; as including the instinctive right that the unity and integrity of the cemetery be preserved as a whole, Jackson, supra, p. 374; to have unsold portions of the cemetery maintained, German Evangelical St. Marcus Congregation v. Archambault, supra; to have funds be not devoted to other than cemetery purposes, 14 C.J.S. Cemeteries § 12, pp. 72, 73, Seitzinger v. Becker, supra, 101 A. l.c. 651(2), Clark v. Rahway Cemetery, 69 N.J.E.q. 636, 61 A. 261; to have trustees with an exclusive interest in advancing the beneficiaries' interest, Powers v. Johnson, Mo.App., 306 S.W.2d 616, Cave Hill Cemetery Co. v. Gosnell, 156 Ky. 599, 161 S.W. 980, 983, Rest., Trusts 2d, § 170. The views of the Attorney General might conceivably conflict with those of respondents in respect to such matters of special interest, and respondents, in representing such interests, should be permitted counsel of their own choice. Murphey v. Dalton, supra, 314 S.W.2d l.c. 731(6).

Appellant contends also that the award of attorneys' fees to respondents was improper because the 'owners of rights of burial in non-perpetual care graves cannot demand * * * care and upkeep. And nothing was brought into Court out of which fees could be allowed. * * * There is no fund or res or subject matter in which owners of rights or interment have an interest out of which an allowance * * * can be made, and there is no res, fund or subject matter in which respondents can share.' Appellant develops these points by argument to the effect that owners of non-perpetual care rights do not have any interest in any perpetual care funds held by appellant and perpetual care rights do not have any interest in such funds for payment of fees because such funds were not preserved or litigated by respondents, and that payment from other than a fund would penalize the fee. Appellant concedes the propriety of an award of fees where money is paid into court out of which the allowance is made, quoting Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936(60, 61): 'It is the general rule, 'well rooted in equitable principles,' * * * that where one goes into a court of equity and takes the risk of litigation on himself, and successfully 'creates, protects, or preserves' a fund, 49 A.L.R. at p. 1153, or brings about the 'creation, increase or protection' of a fund, * * * in which others are entitled to share, those others will not be allowed to lie back and share the results of the successful labors without contributing their proportionate part of counsel fees. * * * The equitable way to apportion the expenses of counsel fees is to allow them against the fund. * * * However, counsel fees may properly be allowed, other circumstances permitting, when the interests of the party seeking the allowance are antagonistic to the one brought to account and compelled to pay a fund into court for distribution * * *.'

Even though the preceding case, like many others, involved payment of attorneys' fees from funds required to be paid into court, such allowances do not depend alone upon recovery of a fund or upon the existence of a res or subject matter which can be distributed or disbursed to the members of the class benefited. 'It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and restore it to the purposes of the trust, he is entitled to reimbursement, either out of the...