In re Estate of Burroughs, 40307.

• Decision Date: 10 November 1947
• Docket Number: No. 40307.,40307.
• Citation: 206 S.W.2d 340
• Parties: IN THE MATTER OF THE ESTATE OF DANIEL S. BURROUGHS, DECEASED. JOHN S. DENSER, Executor and Trustee, Appellant, v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

206 S.W.2d 340 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. Division Two, 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. Supp. 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.

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

206 S.W.2d 341

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...