Howe v. Wilson

• Decision Date: 14 February 1887
• Citation: 3 S.W. 390,91 Mo. 45
• Parties: Howe, Plaintiff in Error, v. Wilson, Executor
• Court: Missouri Supreme Court

3 S.W. 390

91 Mo. 45

Howe, Plaintiff in Error, v. Wilson, Executor

Supreme Court of Missouri

February 14, 1887

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

Mills & Flitcraft for plaintiff in error.

(1) The two counts were properly united in the petition. R. S., sec 3512; Henderson v. Dickey, 50 Mo. 161; Jones v Hickman, 42 Mo. 413. (2) The trust, attempted to be created by the will, being so vague and uncertain that the cestui que trust cannot be defined and accurately determined, the bequest must fail and the property revert to the next of kin. Schmucker v. Reel, 61 Mo. 599; Heiss v. Murphy, 40 Wis. 276; Church v. White's Adm'r, 4 Am. Law Reg. (O. S.) 526; Beekman v. Bonsor, 23 N.Y. 310; Bascom v. Albertson, 34 N.Y. 584; Morice v. Bishop of Durham, 9 Ves. 399; S. C., 10 Ves. 521; Watson's Society v. Johnston, 58 Md. 139; Att'y Gen. v. Soule, 28 Mich. 153; Bridges v. Pleasants, 4 Ired. (N. C.) Eq. 26; Prichard v. Thompson, 95 N.Y. 76; Ommaney v. Butcher, 1 Turn. & Russ. 260; Ellis v. Selby, 1 Mylne & Craig, 286; Trustees of Baptist Ass'n v. Hart's Ex'r, 4 Wheat. 1, 45; Fowler v. Garleke, 1 Russ. & My. 232; James v. Allen, 3 Meriv. 17; Fontain v. Ravenal, 17 How. 369; 2 Story's Eq. Jur., sec. 1169, et seq.; 4 Kent, 508. (3) Where the bequest is of such a character that the trustee might apply the fund for a private charity, as well as one of a public character, without violating the directions of the will, the gift cannot be enforced as a charity, but will be void. Att'y Gen. v. Soule, 28 Mich. 153; Ommaney v. Butcher, 1 Turn. & Russ. 260; Trustees v. Hart's Ex'r, 4 Wheaton, 1-45; Morice v. Bishop, 9 Vesey, 399; James v. Allen, 3 Meriv. 17; Schmucker v. Reel, 61 Mo. 599.

E. C. Elliott for defendant in error.

(1) A bill in equity for the interpretation of a will, or other instrument, will not lie at the instance of a stranger to the administration of the estate. Chapman v. Montgomery, 63 N.Y. 221; Bailey v. Briggs, 56 N.Y. 407; Pomeroy's Eq. Jur., sec. 352. (2) The doctrines of equity, as to charitable uses, constitute part of the law of Missouri. Chambers v. City of St. Louis, 29 Mo. 584; Vidal v. Girard's Ex'r, 2 How. 196; Academy of Visitation v. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126; Schmidt v. Hess, 60 Mo. 591; Church v. Robberson, 71 Mo. 326; Russell v. Allen, 107 U.S. 163. (3) Uncertainty or vagueness in the special objects to be benefited, does not avoid a charitable trust. Perry on Trusts, sec. 732; Saltonstall v. Sanders, 11 Allen, 156; Newson v. Stark, 46 Ga. 88; Inglis v. Sailors' Snug Harbor, 3 Pet. 99; Perin v. Carey, 24 How. 465; Quinn v. Shields, 62 Iowa 129. (4) Discretion in the trustees, as to selection of the objects, does not avoid a charitable trust. Maught v. Getzendanner, 23 Cent. Law Jour. 280; Power v. Cassidy, 74 N.Y. 602; Miller v. Teachout, 24 Ohio St. 525; Bristol v. Bristol, 53 Vt. 243; Mills v. Newberry, 113 Ill. 123; White v. Ditson, 140 Mass. 354; Pell v. Mercer, 14 R. I. 535; Simpson v. Welcome, 72 Me. 496. (5) The trust for charitable uses, provided for in the will of James W. Handfield, could be enforced by the state at the instance of the attorney general. Dodge v. Williams, 46 Wis. 98; In re Orphan Asylum, 36 Wis. 534; Att'y Gen. v. Soule, 28 Mich. 153; Perry on Trusts, sec. 732. (6) A charity, in the legal sense, may be defined as a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. Jackson v. Phillips, 14 Allen, 540.

Black J. Brace, J., absent.

OPINION

Black, J.

The petition in this case contains two counts. The first is an action at law to contest the validity of the will of James W. Handfield. On this count there was a trial, which resulted in a judgment sustaining the will. The second count is in the nature of a bill in equity, to have a clause of the will declared void for uncertainty. A demurrer to this count was sustained, and, to reverse the judgment sustaining the demurrer and dismissing the petition, the plaintiff sued out this writ of error.

From the petition it appears that the plaintiff is the only heir of Elizabeth Handfield, who died in 1882; she was the widow and only heir of James W. Handfield, who died in 1881. The will was duly probated at the death of Mr. Handfield. It is set out in full, and, in substance, is as follows: The testator enumerates the property of which he is possessed, which is wholly personal property, all of which is bequeathed to Alexander Wilson in trust, for the sole use of Elizabeth Handfield, wife of the testator. Directions are then given the trustee as to the management of the property, with power in him to apply the interest and income, and to use from the principal, if needed, for her support, and, at her death, to provide a suitable burial. The trustee is required to buy a cemetery lot for the burial of the testator and his wife, and to reserve sufficient funds to keep the graves in good condition. There is then the following provision: "If there should be a remainder, after such sums are provided for after the death of my said wife, I direct said Wilson to divide said remainder among such charitable institutions of the city of St. Louis, Missouri, as he shall deem worthy." Wilson is made executor of the will, qualified as such, and the estate is alleged to consist of property valued at five or six thousand dollars.

The law is well settled that the courts of this state have jurisdiction over the subject of charities, charitable devises and bequests. Chambers v. City of St. Louis, 29 Mo. 543; Academy of Visitation v. Clemens, 50 Mo. 167; Schmidt v. Hess, 60 Mo. 591; Baptist Church v. Robberson, 71 Mo. 326; Russell v. Allen, 107 U.S. 163, 27 L.Ed. 397, 2 S.Ct. 327. The jurisdiction is not dependent upon the statute of 43 Elizabeth, chapter 4; for it is now conceded that courts of chancery had an inherent jurisdiction over charities before the enactment of that statute. That the statute, in so far as it declares what were existing charities, has had an influence, in many of the states, this state not excepted, must be conceded, though the details are wholly inapplicable here. We have no statute which undertakes to exercise the prerogative power of the king over those charities which did not come within the ordinary jurisdiction of the courts, and hence, with us, some charities will fail, which would not fail in England.

Coming, then, to the question in dispute in this case, two things are to be kept in view which render it unnecessary to examine a number of cases cited by the plaintiff. In the first place, the bequest is for charitable institutions. The testator must be taken to have used the word, "charitable," in its legal signification. No question, then, can arise, as to the character of the bequest. The trustee has no power to dispose of the fund for any purpose other than that strictly charitable. In the next place, there is a living trustee, in whom the testator vested the power to divide the fund among such institutions as he should deem worthy. Though the institutions are not designated, yet the means of designating them is provided, and there is no claim that the trustee refuses to act. The case concedes that he will discharge the duty imposed upon him. The question, then, is, with the bequest purely charitable and a trustee with power to execute it, is it void for uncertainty? Mr. Perry says: "There is a wide distinction between a gift to charity, and a gift to a trustee, to be by him applied to charity. In the first case, the court has only to give the fund to charitable institutions, which is a ministerial or prerogative act; in the second case, the court has jurisdiction over the trustee, as it has over all trustees, to see that he does not commit a breach of his trust, or apply the funds in bad faith, or to purposes that are not charitable. * * * The courts in America have generally declined, in the absence of legislative authority, to administer these indefinite gifts to charity, or religion, or education, or public utility, unless there was a trustee appointed by the testator to exercise his discretion in applying the gift to particular objects or persons." 2 Perry on Trusts, sec. 719.

In Chambers v. City of St. Louis, supra, the devise was "in trust to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west." That devise was held valid and sufficiently definite and certain, after an elaborate and thorough investigation of the subject. There, it is true, a class of persons was selected to receive aid from the fund; here charitable institutions within a limited and defined locality, are selected. We do not see that the difference affects the application of any principle upon which that case was decided. The more...