Harger v. Barrett

• Citation: 5 S.W.2d 1100
• Decision Date: 24 March 1928
• Docket Number: No. 26411.,26411.
• Court: United States State Supreme Court of Missouri
• Parties: GEORGE A. HARGER, M.G. HOLLOWAY, WILLIAM A. STAIR, COLUMBUS A. MOORE, PEARL HOLLETT, for Themselves and All Other Members of the Pleasant Ridge Baptist Church, v. JESSE W. BARRETT, Attorney-General, and Unknown Heirs, Consorts, Devisees, Donees, Alienees, and Immediate, Mesne, Remote, Voluntary and Involuntary Grantees of WILLIAM W. BROOKS, WALTER LEE BROOKS and CHLOE McKINNEY BROOKS, Deceased, and W.W. ANTILL, WAYNE CAMPBELL, a Minor, by JOHN A. CAMPBELL, His Guardian <I>Ad Litem,</I> BOONE BOUSE, BARNETT BOUSE, DECIA PITTS, RAY BOUSE and FRED BOUSE, Appellants.

5 S.W.2d 1100

GEORGE A. HARGER, M.G. HOLLOWAY, WILLIAM A. STAIR, COLUMBUS A. MOORE, PEARL HOLLETT, for Themselves and All Other Members of the Pleasant Ridge Baptist Church, v. JESSE W. BARRETT, Attorney-General, and Unknown Heirs, Consorts, Devisees, Donees, Alienees, and Immediate, Mesne, Remote, Voluntary and Involuntary Grantees of WILLIAM W. BROOKS, WALTER LEE BROOKS and CHLOE McKINNEY BROOKS, Deceased, and W.W. ANTILL, WAYNE CAMPBELL, a Minor, by JOHN A. CAMPBELL, His Guardian Ad Litem, BOONE BOUSE, BARNETT BOUSE, DECIA PITTS, RAY BOUSE and FRED BOUSE, Appellants.

No. 26411.

Supreme Court of Missouri, Division Two.

March 24, 1928.

Appeal from Henry Circuit Court. — Hon. C.A. Calvird, Judge.

AFFIRMED.

W.D. Summers and Roscoe C. Summers for appellants Bouse Heirs.

(1) The sixth clause of the will is void for the reason that it is to a church, not incorporated and not a charitable institution. Turpin v. Bagby, 138 Mo. 7; Lilly v. Tobbein (Mo.), 15 S.W. 618; Tucker v. Diocese (Mo.), 264 S.W. 897. (2) The sixth clause, being void, the remainder, subject to the life estate of the widow, went to Walter Lee Brooks, son of W.W. Brooks, under the law, the same not being disposed of by his will, subject, however, to be defeated by birth of heir, which contingency never happened. Corby v. Corby, 85 Mo. 371; Smucker Est. v. Reed, 61 Mo. 592; Mo. Historical Society v. Academy, 94 Mo. 459. (3) On death of Walter Lee Brooks, after the death of his father, and without heirs, his mother, Chloe McKinney Brooks, inherited the remainder from him, which merged with her life estate, giving her the whole estate. Haylor v. Goodwin, 109 Mo. 550; Gannon v. Pauk, 200 Mo. 75. (4) She having died leaving will of personal property only, the real estate went to the Bouse heirs (her brothers and sisters). Plummer v. Shepherd, 51 Mo. App. 173. (5) The pleadings of plaintiffs and the will on their face show that the decree is void, as it seeks to place a fee-simple title in the plaintiffs. 23 R.C.L. 443; Schmidt v. Hess, 60 Mo. 591; Washburn v. Acome, 131 N.Y. Supp. 963.

Cyrus Crane, Wm. M. Anderson and Henry W. Fox for appellants W.W. Antill and Wayne Campbell.

(1) The court erred in finding in favor of the plaintiffs for the reason that plaintiffs failed to plead or prove legal capacity to maintain this suit. Turpin v. Bagby, 138 Mo. 7; Beatty v. Kurtz (U.S.), 2 Peters, 566; Bush v. Bullington (Ind.), 78 N.E. 640; Cabe v. Vann Hook (N.C.), 37 S.E. 464; Church v. Harken (Iowa), 158 N.W. 692; White v. Rice (Mich.), 70 N.W. 1024; Stewart v. White (Ala.), 30 So. 526; Lilly v. Tobbein, 103 Mo. 486; Tucker v. Diocese (Mo.), 264 S.W. 897. (2) The court erred in finding in favor of the plaintiffs, for the reason that the devise in question passed no title to the plaintiffs. (a) The devise did not constitute a gift of real estate, for the reason that the terms are not absolute and unconditional. Corby v. Corby, 85 Mo. 371; Smucker Estate v. Reel, 61 Mo. 592; Mo. Hist. Society v. Academy of Science, 94 Mo. 459. (b) The devise cannot be enforced because it is too indefinite and uncertain. Board of Trustees v. May, 201 Mo. 360; Hadley v. Forsee, 203 Mo. 418; Jones v. Patterson, 271 Mo. 1; Kelly v. Nichols (R.I.), 25 Atl. 840; Tilden v. Green (N.Y.), 28 N.E. 880; Maught v. Getzendanner (Md.), 5 Atl. 471. (c) The decree of the court in favor of plaintiffs is contradictory and is against the evidence and is in conflict with law. 23 R.C.L., 443; Schmidt v. Hess, 60 Mo. 591; Washburn v. Acome, 131 N.Y. Supp. 963. (3) The court should have found and decreed that defendant Wayne Campbell, a minor, is the owner of the real estate in question. 23 R.C.L. 518; Thomas v. Anderson, 245 Fed. 642; Sullivan v. Garesche, 229 Mo. 496.

Allen Glenn & Son and Crouch & Crouch for respondents.

(1) Plaintiffs may sue for themselves and all other members of the church. Lilly v. Tobbein, 103 Mo. 477; Harris v. Langford, 277 Mo. 527; Wiehtuechter v. Miller, 276 Mo. 322. (2) A bequest to an unincorporated church will not fail. Schmidt v. Hess, 60 Mo. 591; Lilly v. Tobbein, 103 Mo. 486; Helpers of Holy Souls v. Law, 267 Mo. 667; National Board of Missions v. Fry, 293 Mo. 399; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Cummings v. Dent, 189 S.W. 1161; Schneider v. Kloepple, 270 Mo. 389; Sandusky v. Sandusky, 261 Mo. 356; St. George's Church v. Branch, 120 Mo. 226; Strother v. Barrow, 246 Mo. 250; Bishop's Residence Co. v. Hudson, 91 Mo. 671; Turpin v. Bagby, 138 Mo. 7. (3) A gift to repair or rebuild a church is a gift to charitable uses. Sandusky v. Sandusky, 261 Mo. 358; St. George's Society v. Branch, 120 Mo. 226; Bishop's Residence Co. v. Hudson, 91 Mo. 671. (4) Gifts for pious or charitable use are favored by law. Strother v. Barrow, 246 Mo. 250; Sandusky v. Sandusky, 261 Mo. 358. (5) The attorney-general is a proper party defendant. Cummings v. Dent, 189 S.W. 1161. (6) This suit is an action to quiet title and the interests of plaintiffs are such that they may maintain this action. Sec. 1970, R.S. 1919. (7) "If the incapacity of the plaintiffs to sue appear on the face of the petition, defendants must raise the point by special demurrer, or else he held to have waived it; or if the incapacity does not appear upon the face of the petition, it must be raised in the answer, or is likewise waived." Sec. 1226, R.S. 1919; Crowl v. American Linseed Co., 255 Mo. 305; Guilbert v. Kessinger, 173 Mo. App. 680; Ashton v. Penfield, 233 Mo. 391; Young Men's Christian Assn. v. Dubach, 82 Mo. 475; State ex rel. Johnson v. Withrow, 108 Mo. 1; Johnson v. Detrick, 152 Mo. 243; Fulwider v. Gas Co., 216 Mo. 582.

WALKER, J.

This is a suit to quiet title to certain land in Cass County, belonging, in his lifetime, to William W. Brooks. The determination of the matter at issue involves a construction of a clause in the will of William W. Brooks, in which he bequeathed, under the conditions therein stated, the corpus of his property to an unincorporated association in Cass County, designated as the Pleasant Ridge Baptist Church. The plaintiffs, respondents here, sue for themselves and all other members of the said church. The bequest to the church involving a public charity, the then Attorney-General was made a party defendant, as representing the public. The other defendants — appellants here — sustain the following relationship to William W. Brooks; William W. Antill was his nephew, being a son of his sister; the Bouses were brothers, sisters, nephews and nieces of Chloe McKinney Brooks, the wife of William W. Brooks. Wayne Campbell, a minor, was not of kin, either to William W. Brooks or his wife, but was a beneficiary in the will of the personal effects of the wife who made no disposition therein of any real property.

William W. Brooks was the owner of a tract of two hundred and forty acres of land in Cass County. He died testate on the 12th day of April, 1902. He left surviving him his wife, Chloe McKinney Brooks, and their son, Walter Lee Brooks, their only child.

To his wife he bequeathed the income and profits of his property of whatever kind and nature, to have and to hold so much of same as she may need for her comfortable support during her widowhood.

To his son, Walter Lee Brooks, he bequeathed all of the remainder of the net income of his property after the payment of the testator's debts and the comfortable support and maintenance of his wife as aforesaid. The income to the son was to be absolute during his life only after freeing the property of all taxes, his mother's support and the expenses incident to the care of the property. The corpus of his property (the property itself) he devised and bequeathed to the children of his son, born to the latter after the date of the will. The reason for this limitation is stated, but it is not necessary to the determination of the issue here seeking solution. The sixth clause of the will, upon which the controversy herein is based, is as follows:

"Sixth: Should my said son die without child or children hereafter born to him (and my wife die without further children by me) then and in that event I desire the corpus of my property to go to the Pleasant Ridge Baptist Church for the erection or improvement of a church house and what is not needed for the purpose to be used as may be directed by said church."

The son, Walter Lee Brooks, died intestate in 1919, leaving a widow, Myrtle Brooks, but no children. His mother, Chloe McKinney Brooks, died testate, so far as her personal effects were concerned, in March, 1922.

The contention of the plaintiffs is that upon the deaths of the son and the widow, of William W. Brooks, they became, as members of the Pleasant Ridge Baptist Church, seized of the real estate of William W. Brooks, under the provisions of the sixth clause of his will above set forth.

All of the defendants contend that the said sixth clause is void, and no other provision having been made in the will for the vesting of the title to the lands of the testator that they are seized of interests therein which they ask the court to adjudicate and determine.

The claim of William W. Antill is as a collateral heir of his uncle. William W. Brooks. The claims of the Bouses are as collateral heirs of Chloe McKinney Brooks, who it is contended was seized of an interest in the real estate of her husband.

The guardian ad litem of Wayne Campbell claims that his ward is entitled to an interest in the real estate of William W. Brooks under a clause in Chloe McKinney Brooks's will which, following a specific bequest of personal property to Wayne Campbell, provides that "all other property not disposed of in my will and codicil I desire to go to Wayne Campbell."

The trial court entered a decree quieting the title to the land in controversy in the plaintiffs, from which the defendants have appealed.

I. This case involves not only the construction of the will of William W. Brooks, but incidentally that of...