Kenrick v. Cole

• Decision Date: 31 January 1876
• Citation: 61 Mo. 572
• Parties: PETER RICHARD KENRICK, Appellant, v. GEORGE B. COLE, Executor of MARY L. LAMARQUE, et al., Respondents.
• Court: Missouri Supreme Court

61 Mo. 572

PETER RICHARD KENRICK, Appellant,

v.GEORGE B. COLE, Executor of MARY L. LAMARQUE, et al., Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

A. J. P. Garesche, for Appellant.

I. The proceedings in the circuit court are in the nature of an appeal from the probate court and a trial de novo; hence the issue and the final judgment must be the same. (Wagn. Stat., 1368, § 29; Harris vs. Hays, 53 Mo., 94.) Therefore in the probate court the whole will must be probated, though there are objectionable clauses in it. (Dayton's Surrogate, p. 58; Redf. Wills, § 4, p. 51, vol. 3; Lorieux vs. Keller, 5 Iowa., 201; 10 Rich., S. Car., p. 193.)

II. At all events the evidence of a secret trust should have been excluded, because declarations cannot vary the express terms of the will. (Claggett vs. Hall, 9 Gill. & J., 92; Dickenson vs. Dickenson, 2 Murph., 279; Avery vs. Chappell, 6 Conn., 274; Bonner vs. Storm, 1 Sandf. Ch. R., 361; Judy vs. Williams, 2 Ind., 449; Gifford vs. Dyer, 2 R. I., 90; Sparks vs. De la Guarra, 14 Cal., 110. Davis vs. Davis, 8 Mo., 58; Cowgill vs. Gregory, 19 Mo., 416; Gibson vs. Gibson, 24 Mo., 227; Cawthorn vs. Haynes, 24 Mo., 236; Bradley vs. Bradley, 24 Mo., 316; Tingley vs. Cowgill, 48 Mo., 296; Goode vs. Goode, 22 Mo., 524; Negro, Cæsar, vs. Chew, 7 Gill. & J., 130; Stephen vs. Walker, 8 B. Mon., 603.) And as it here refers to land, such a trust, if not in writing, must at least be proved by written testimony. (Lane vs. Ewing, 31 Mo., 75.)

III. Mere words of recommendation are not imperative, and hence, even if the alleged trust had been declared they would not invalidate the devise, because not binding on the devisee. (Pennock's Est., 20 Pa., 280; Lane vs. Ewing, 31 Mo., 87.)

IV. The plaintiff, even upon proof made by defendants, was entitled to recover. Paragraph 9, Art., 1 of the Constitution guarantees freedom of worship and liberty of conscience, hence, § 13, Art. I., was intended only to restrain perpetuities. (Thompson vs. Newlin, 8 Ired. Eq., 41; Lomax vs. Ripley, 3 Smals & Gifford, 78.)

V. Finally, even if the bequest be fraudulent, respondents no more than Mary Lamarque can invoke equity to set it aside. (Ober vs. Howard, 11 Mo., 427.)

Glover & Shepley, for Respondents.

I. The 10th clause of the will rejected by the county court and which is sought to be probated in this proceeding, was made upon a secret trust between the testatrix and Archbishop Kenrick, as such, for the use and benefit of the church in violation of law, and was void. (Const. Mo., Art. I, § 13.)

Under similar provisions of law, prohibiting certain classes of trusts, the trusts when created, and the estates upon which they have been engrafted, have always been held void as against the heirs of the devisor or other interested parties.

It is contended here, that though the trust is void the devisee can hold the property to his own use. But if this was allowed the prohibiting law would be a nullity. It would place the property in the possession of the church in defiance of the constitution. (Boron vs. Statham, 1 Eden, 508; Muckleton vs. Brown, 6 Ves., 52; Strickland vs. Aldridge, 9 Ves., 516; Paine vs. Hall, 18 Ves., 475; Edwards vs. Pike, 1 Eden, 267; Russell vs. Jackson, 10 Hare, 204; Barrow vs. Green, 3 Ves., 152.)

Bishop Kenrick expressly assented and agreed to use this devise for an illegal, unconstitutional purpose. That made the devise to him void. (McLean vs. Wade, 41 Pa. St., 266; Miller vs. Porter, 52 Pa. St., 292; Price vs. Maxwell, 28 Pa. St., 23.)

II. The 10th clause being null and void, it should not be probated. (Redf. Law of Wills, [Part 2, Legacies and Executors] t. p. 43; Barton vs. Robbins, 3 Phil., 455, note b.; Beale vs. Plume, 1 P. Will., 388; Allen vs. McPherson, 1 H. L., 191; Billinghurst vs. Vickers, 1 Phil., 187; Hill vs Burger, 10 How. Pr., 264.)

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding by the plaintiff to establish the tenth clause of the will of Mary L. Lamarque, deceased. It seems that when the will was originally presented to the probate court all the other clauses were duly probated, but the tenth was rejected as being illegal and void. The validity of that clause is now the question presented for our determination. It reads as follows, to-wit:

“10. All the remainder, rest and residue of the estate, real, personal and mixed, whereof I shall die seized, entitled or possessed, including herein also everything which, though herein disposed of, may by lapse, or other failure in intendments of law, be regarded as undisposed of, I give, bequeath and devise to Peter Richard Kenrick, of the city and county of St. Louis, Missouri, constituting him my residuary legatee.”

The court below refused to establish the clause, and found for the defendants on the ground that the bequests and devises contained therein were made contrary to the constitution of this State, forbidding “any gift, bequest or devise for the support, use or benefit of any minister, public teacher or preacher of the gospel as such, or to any religious sect, order or denomination.”

The evidence in the case shows that, prior to the making of the present will, the testatrix made another will containing a devise to Peter Richard Kenrick in his official capacity as archbishop of the Roman Catholic church, for the benefit of the church. After the adoption of the constitution of 1865 the prior will was canceled, and the present will was made, containing the tenth clause, in favor of Peter Richard Kenrick as an individual, but with the same intent as expressed in the former will.

About this there is no controversy. Mr. Fox, who was the pastor of the testatrix, and who made out the memoranda at her request, for drafting the will now in controversy, says, that the intention of the testatrix in making Peter Richard Kenrick her residuary legatee was the same as when she bequeathed him a certain amount in her former will, as archbishop of St. Louis; that while she gave the legacy to him absolutely, it was well known that she would not have made him her residuary legatee if he had not been the archbishop of St. Louis, and a Catholic clergyman. The witness further testified, that, in answer to a letter he wrote to the archbishop in reference to the will of the testatrix, the archbishop said that he would accept of any bequest she might make him, and he would act in a manner congenial to her wishes and suggestions.

Mr. Garesche testified for the plaintiff, that he drew both wills, and that after the adoption of the constitution of 1865, fearing that the provisions of the former will would be annulled, so far as its residuary clause was concerned, he notified testatrix that it would be better to change it. An interview then followed between him and Father Fox before anything was done, and he told him that the will in its then shape would give rise to litigation; that, of course, a Catholic priest or archbishop would be bound to administer the property to Catholic uses and for charitable purposes, and be bound in conscience to do good with it, and he therefore advised, if the testatrix had confidence in the archbishop, that she should revoke the first will and make a new one, giving the legacy to him...