In re Burroughs' Estate

• Citation: 206 S.W.2d 340,357 Mo. 10
• Decision Date: 10 November 1947
• Docket Number: 40307
• Parties: In the Matter of the Estate of Daniel S. Burroughs, Deceased. John S. Denser, Executor and Trustee, Appellant, v. State of Missouri
• Court: United States State Supreme Court of Missouri

206 S.W.2d 340

357 Mo. 10

In the Matter of the Estate of Daniel S. Burroughs, Deceased. John S. Denser, Executor and Trustee, Appellant, v. State of Missouri

No. 40307

Supreme Court of Missouri

November 10, 1947

Motion for Rehearing or to Transfer to Banc Overruled December 8 1947.

Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.

Reversed.

Watts & Gentry and Herbert E. Bryant for appellant.

(1) By Section 576, Article XXI, R.S. 1939, it is provided "All transfers of property or beneficial interests therein to be used and actually used solely for charitable purposes", are exempted from the inheritance tax. See also Section 602, R.S. 1939, to the same effect, except that it lengthens the list of exceptions. (2) Masonry is a well known charity, as has been expressly held by this court. Fitterer v. Crawford, 157 Mo. 51. (3) Other institutions having similar aims and not devoted entirely to paying out money for poverty stricken people have also been held to be charities and exempt from taxes in Missouri. Grand River Lodge No. 52 I.O.O.F. v. Crawford, 157 Mo. 41; Y.W.C.A. v. Baumann, 130 S.W.2d 499; Salvation Army v. Hoehn, 188 S.W.2d 826; Adelphia Lodge K.P v. Crawford, 157 Mo. 351. (4) Section 10937, R.S. 1939 (which is the same as Section 9119, R.S. 1899 and 4996 R.S. 1929), mentioned in some of the decisions cited herein, was passed pursuant to Article X, Section 6 of the Missouri Constitution of 1875, which provided that the legislature might exempt from taxation property used for purposes purely charitable. (5) In several states it has been held that a Masonic Lodge is a charity and under statutes similar to or identical with our own, bequests to Masonic Lodges have been held exempt from inheritance taxes. Morrow v. Smith, 145 Iowa 514, 124 N.W. 316; In re Hiteman's Estate, 180 N.Y.S. 880, 110 Misc. 617; Plattsmouth Lodge v. Cass Co., 79 Neb. 463, 113 N.W. 167; Cruse v. Axtell, 50 Ind. 49. (6) A much more liberal construction has been given by this court in recent cases than in earlier cases to the terms "charity," "charitable purposes" and similar terms. Y.W.C.A. v. Baumann, 130 S.W.2d 499; Salvation Army v. Hoehn, 188 S.W.2d 826. (7) The tendency of courts of other states to liberalize the application of such terms as "charity," "charitable uses exclusively," and similar terms is as noticeable as such tendency in this court's decisions. See cases under (5), and also the following cases: In re Hackett's Estate, 234 N.Y.S. 279; In re Alber's Estate, 237 N.Y.S. 521; In re Hiteman's Estate, 180 N.Y.S. 880; Plattsmouth Lodge No. 6, A.F. & A.M., v. Cass County, 79 Neb. 463; Parkhurst v. Burrill, 228 Mass. 196, 117 N.E. 39; Molly Varnum Chapter, D.A.R., v. Lowell, 204 Mass. 487. (8) In construing a will, the court must look to the four corners thereof and consider the whole instrument, not merely a sentence or a phrase in it. Loud v. St. Louis Union Trust Co., 249 S.W. 629, 298 Mo. 148; Kingston v. Wagner, 155 S.W.2d 146; Tyler v. Vistol, 196 S.W.2d 769. (9) By such a construction it clearly appears that the building which Mr. Burroughs directed his trustee to have built is to be for the use of the Masonic Lodge, and not for the benefit of any individuals, though the early part of the paragraph in which the trust is created might be considered somewhat ambiguous. Reading the whole instrument can leave no doubt as to the purpose of the building.

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

The Circuit Court of Audrian County, Missouri, did not err in holding the transfer under the will of Daniel S. Burroughs to John S. Denser, trustee, to be subject to the Missouri inheritance tax laws. Secs. 576, 602, R.S. 1939; In re First Natl. Safe Deposit Co., 351 Mo. 423, 173 S.W.2d 403; Morrow v. Smith, 145 Iowa 514; In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621; People ex rel. v. Rockford Masonic Temple Bldg. Assn., 181 N.E. 428; Salvation Army v. Hoehn, 188 S.W.2d 828; Evangelical Luthern Synod, etc. v. Hoehn, 196 S.W.2d 134.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This case involves the question of whether property devised to a trustee with directions to erect a building to be used for Masonic purposes only is exempt from inheritance tax under the provisions of Sec's. 576, 602 Mo. R.S.A R.S. Mo., 1939. The case originated in the Probate Court of Audrain County, Missouri, where a tax of $ 16,330.82 was assessed. On appeal to the circuit court a like judgment was entered and the executor of the estate appealed.

The exemption from taxation is claimed on the ground that the Masonic bodies in Mexico, Missouri, for whose benefit the bequest was made, are charities within the meaning of the law and the fund devised is to be used for charitable purposes exclusively. The state contends that the devise is subject to tax for two reasons: First, that the Masonic Temple to be erected and maintained from the proceeds of the property devised will not be used exclusively for charitable purposes; second, that the charitable objects of the Masonic Lodge are not exclusively within this state. The case was submitted on an agreed statement of facts. The provisions of the will pertinent to the issues read as follows:

"I will, bequeath and devise all of the rest, residue and remainder of my property, both real and personal, of whatsoever kind and character and wheresoever situate to John S. Denser, of Mexico, Missouri, In Trust, and as Trustee for the use and benefit of the members, present and future, of the Masonic Orders of Mexico, Missouri, to-wit: Hebron Lodge No. 354, Royal Arch Chapter No. 27, and Crusade Commandery No. 23.

"The provisions of said trust being as follows: Said Trustee is hereby given full power and authority to manage and control said trust property, sell the same when ever he deems it advisable and invest and re-invest the proceeds in United States Government bonds, bonds of the State of Missouri, or of any municipality in said State. Said Trustee is further empowered and directed to use sufficient of said trust fund not to exceed the amount of One Hundred Thousand Dollars ($ 100,000.00) wherewith to acquire a site and to erect a building thereon to be known as the D. S. Burroughs Memorial Masonic Temple for the use of said three Masonic bodies jointly. Said building to be of a character and design and built on a site in Mexico, Missouri, as may be determined upon by said Trustee and a representative from each of said three Masonic bodies delegated to act for such purpose. Said Trustee upon the erection and completion of said building shall have supervisory control thereof so far as is necessary to keep the same in good repair and to assure that said building shall be used after its erection for Masonic Lodge purposes only. Said Trustee shall use the income from the balance of said trust fund remaining after the cost of the erection of said building as a fund for the maintenance and upkeep of said building, and the corpus of any unexpended portion of said trust fund remaining after the cost of erection of said building and its maintenance shall remain intact as a permanent endowment fund for said Masonic bodies.

"Said Trustee shall take charge and control of said trust fund and property immediately upon the final termination of administration on my estate and shall then proceed as soon as practicable to select a site for and erect thereon said building."

The will also directed that the trustee be required to give bond as fixed by the Circuit Court of Audrain County and that in case of necessity a successor trustee be appointed by the court. By a codicil the amount to be expended for the erection of a building was reduced to $ 80,000. The agreed statement of facts shows that the Grand Lodge of Ancient Free and Accepted Masons of the State of Missouri was incorporated under the laws of this state. Art. 10, Chap. 33, Mo. R.S.A., R.S. Mo., 1939. The Masonic Orders of Mexico mentioned in the will are subordinate to the Grand Lodge of the State. The Hebron Lodge, No. 354, was granted a charter by the Grand Lodge on October 30, 1870. The purposes of the Masonic Lodge, as set forth in the constitution and by-laws in the agreed statement of facts, are as follows:

"'The Grand Lodge shall be the supreme Masonic authority within the State of Missouri, and by the ancient constitutions and usages of the fraternity, is, and shall be, invested with all the original essential powers and privileges belonging to the Ancient craft, and shall have power especially:

"'(1) To enact and enforce all laws and regulations for the government of the fraternity, and to alter, amend and repeal the same at pleasure.

"'(3) To establish and preserve a uniform mode of work and lectures within the ancient landmarks and customs of Masons.

"'(8) To require and collect from all brother Masons residing within the jurisdiction of this Grand Lodge, such sums of money annually, for charitable purposes, as may from time to time be provided for and be required by law.'"

"'The objects and purposes of said Order are to nurse, care for and to provide for its sick, afflicted and needy members and their families, bury the dead, care for the widows of its deceased members, and care for and educate their orphan children, and to inculcate in its members the principles of morality, temperance, benevolence and charity, and teach them their duty and true fraternal relationship to mankind.'"

A by-law prohibits the use of the word "Masonic" and the Masonic emblems for commercial purposes. The Masonic Manual of Missouri contains the following:

"'Definition of Freemasonry.

"'Freemasonry is a beautiful system of morals, veiled in allegory, and...