Gossett v. Swinney

• Decision Date: 19 December 1931
• Docket Number: No. 9200.,9200.
• Citation: Gossett v. Swinney, 53 F.2d 772 (8th Cir. 1931)
• Parties: GOSSETT et al. v. SWINNEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F.2d 772 (1931)

GOSSETT et al. v. SWINNEY et al.

No. 9200.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1931.

Rehearing Denied December 19, 1931.

A. N. Gossett, of Kansas City, Mo. (William Seward Allen, of New York City, and John T. Harding, Henry L. Jost, Ben R. Estill, Arthur L. Miller, Roy K. Dietrich, Frank E. Tyler, Claude S. Gossett, and Lucian Lane, all of Kansas City, Mo., on the brief), for appellants.

Paul R. Stinson, of Kansas City, Mo. (I. P. Ryland, Arthur Mag, Roy B. Thomson, Alfred M. Seddon, McCune, Caldwell & Downing, R. R. Brewster, Harkless & Histed, Winger, Reeder, Barker, Gumbiner & Hazard, Madden, Freeman & Madden, William S. Hogsett, Langworthy, Spencer & Terrell, Scarritt, Jones & North, and Alfred Gregory, all of Kansas City, Mo., on the brief), for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SANBORN, District Judge.

VAN VALKENBURGH, Circuit Judge.

December 20, 1927, Harry Wilson Loose, a citizen of Kansas City, Mo., died leaving a will, the construction of article seven whereof is the subject-matter of this controversy. He left no descendants, brothers or sisters, nephews or nieces. His father and mother as well as his uncles and aunts were dead. His next of kin, and indeed his only blood relatives, were the ten first cousins, complainants in this action. Upon his wife, from whom he had been living apart, and who survived him, he had made a property settlement, which she had accepted in satisfaction of all her marital rights or claims upon his estate. Included in this settlement was the provision that she should receive the sum of $100,000 from his estate if she survived him. By the will, this sum was bequeathed to her and has been paid by the executors. None of the plaintiffs was named as beneficiary. The will contained three bequests in addition to that to the wife above mentioned. By article seven of the will, the remainder of his estate was devised and bequeathed to the First National Bank of Kansas City, Mo., Edward F. Swinney and Arthur Mag as trustees, for the following purposes:

"(b) The Trustees shall take possession, control and management of all of the property devised and bequeathed in this Article Seven to the Trustee, said property being sometimes hereinafter referred to as the trust estate. The Trustees shall invest, reinvest the same, collect and receive the rents, issues and profits thereof, and from time to time use and apply the principal and income of said trust estate for the furtherance and development of such charitable, benevolent, hospital, infirmary, public, educational, scientific, literary, library or research purpose in Kansas City, Missouri, as said Trustees shall in their absolute discretion determine to be in the public interest. Such application may be made either by donations to institutions of the character above mentioned or through the formation of corporations or associations for the development of such purposes and contributions to such corporations or associations."

Said article seven also contained the following paragraphs:

"(g) Each institution which shall receive any of the benefits from the trust created under this Will shall place in one of its buildings a bronze tablet of such design as it deems appropriate, on which shall be substantially the following words:

"`This Institution is Partly Endowed by The Carrie J. Loose Fund Established by Her Son Harry Wilson Loose.'"

"It is my recommendation that each of such institutions consult with my attorney, Arthur Mag, of Kansas City, Missouri, in connection with the exact location of said bronze tablet or tablets and the inscription thereof. I recommend to the Trustees (but this shall merely be construed as a recommendation and nothing else, the final decision being in their absolute discretion) that, in using and applying the principal and income of the trust estate as hereinbefore provided, they show every possible preference to The Women's Christian Association of Kansas City, Missouri, which operates the Gillis Orphans' Home and the Margaret Klock Armour Memorial Home for Aged Couples. I likewise recommend that they give every consideration to the Children's Mercy Hospital of Kansas City, Missouri, and the George H. Nettleton Home for Aged Women.

"(h) If possible, I would recommend that the Trustees be members of the Governing Boards of the various institutions for whose benefit the income and principal of the trust estate may be from time to time used and applied, but this shall not be construed as a condition.

"(i) No Trustee named in this Will and no trustee appointed to fill any vacancy as herein provided shall be disqualified from acting or be subject to any criticism whatsoever by reason of being an officer or member of the Governing Board of any institution to which the said Trustees shall deem it desirable to extend aid under the powers hereinabove conferred upon them."

This suit was commenced by the filing of a bill of complaint by Charles M. Irwin, first cousin of the testator, against Edward F. Swinney and Arthur Mag as executors, and First National Bank of Kansas City, Mo., Edward F. Swinney and Arthur Mag, as trustees under the will of said decedent. By subsequent amendments, Isaac A. Loose, Edith Loose Wood, Amanda Loose Eastman, Mary B. Merrill, Paul Brown, Silas S. Brown, Joseph L. Brown, Kenneth D. Loose, and Jessie Loose Smith, also first cousins, have been added as complainants. By intervention, the Attorney General of the state has been made a defendant. All of the complainants are citizens and residents of states other than Missouri, and all of the defendants are citizens and residents of Missouri. Federal jurisdiction attaches by reason of this diversity of citizenship. Each of the complainants had been remembered by substantial bequests in the will of the testator's father, Joseph L. Loose, and in that of his uncle, Jacob L. Loose. Since the filing of the complaint herein, the original complainant, Charles M. Irwin, has died intestate, and the suit has been revived in the name of A. N. Gossett, the duly appointed administrator of his estate.

The substance of the contentions of appellants in attacking article seven of the will are:

"1. The attempted trust is void for vagueness, indefiniteness and uncertainty in that, —

"(a) The ten purposes expressed in his will by the testator are so broad and general that the testator has failed himself to designate any charitable use or uses in the legal acceptation of the term to which the funds must be devoted; and he states ten general purposes, undertaking to leave to the absolute discretion, will or determination of the trustees the choice between the ten.

"(b) The testator has failed to designate a class or classes of beneficiaries from which the ultimate individual recipients of the trust funds may be selected.

"2. The attempted trust is invalid because some of the ten words used by testator to designate the ten purposes or uses are not charitable at all in meaning or connotation, and the others extend far beyond charity in the legal sense."

At the trial of the case below, the court, in an exhaustive opinion, found the issues for appellees, and decreed accordingly. Irwin et al. v. Swinney (D. C.) 44 F.(2d) 172. It is conceded that the validity of this bequest depends upon the law of Missouri, the state of the testator's domicile. Jones v. Habersham, 107 U. S. 174, 2 S. Ct. 336, 27 L. Ed. 401; Duggan v. Slocum (C. C. A. 2) 92 F. 806. The courts of Missouri, as well as most American courts, have adopted a liberal attitude toward charitable trusts.

In approaching a question of this character, we should keep in view two cardinal rules which govern in the construction of wills. The first is that every effort should be made to ascertain and fulfill the intention of the testator; and, second, that charitable devises are favorites of the law and should be upheld, provided they are sufficiently definite to permit of enforcement in a court of equity, and are not in conflict with existing law. St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.(2d) 47; In re Rahn's Estate, 316 Mo. 492, 291 S. W. 120, 51 A. L. R. 877; Mott v. Morris, 249 Mo. 137, 147, 155 S. W. 434; Board of Trustees v. May, 201 Mo. 360, 99 S. W. 1093; Crow ex rel. v. Clay County, 196 Mo. 234, 95 S. W. 369; Lackland et al. v. Walker, 151 Mo. 210, 52 S. W. 414; Adams v. University Hospital, 122 Mo. App. 675, 685, 99 S. W. 453.

In St. Louis Union Trust Company v. Little, 320 Mo. 1058, 10 S.W.(2d) 47, it is said:

"It is not the law that where the meaning of any portion of a will is uncertain and ambiguous, the whole will is void by reason of such uncertainty and ambiguity. On the contrary, no will will be held to be void for uncertainty unless it is impossible to put a meaning upon it.

"It matters not what words were used by the testator to express his intention, or in what peculiar or technical language he expressed it, courts will give effect to his intention as it may be gathered from the entire will."

The language found on page 454 of Jarman on Wills (6th Ed.) taken from an English case, is thus quoted with approval: "The modern doctrine is not to hold a will void for uncertainty unless it is absolutely impossible to put a meaning upon it. The duty of the court is to put a fair meaning on the terms used and not, as was said in one case, to repose on the easy pillow of saying that the whole is void for uncertainty."

And, again: "The duty of the court in every case is to get at the intention of the testator, and our statute has given emphatic repetition to this rule. (Sec. 555, R. S. 1919). The general trend of Missouri cases fully supports this doctrine. (Grace v. Perry, 197 Mo. 559 95 S. W. 875, 7 Ann. Cas. 948; Gannon v. Pauk, 200 Mo. loc. cit. 85 98 S. W. 471). It matters not what words are used by the testator to express his intention, or in what popular or peculiar or technical language he...