Lackland v. Walker

• Decision Date: 30 June 1899
• Citation: 151 Mo. 210,52 S.W. 414
• Parties: LACKLAND et al. v. WALKER, Atty. Gen., et al.
• Court: Missouri Supreme Court

52 S.W. 414

151 Mo. 210

LACKLAND et al. v. WALKER, Atty. Gen., et al.

Supreme Court of Missouri.

June 30, 1899.

CHARITIES — WILL — EQUITY — PARTIES TO SUIT BY TRUSTEES — RESTRAINT ON POWER OF ALIENATION — CHANGING MODE OF ADMINISTERING TRUST — STATUTE AUTHORIZING TRUST — CONSTRUCTION.

1. A devise of property to constitute a botanical garden, with a museum and library connected therewith, "so as to provide for the use of the public of a botanical garden easily accessible, which shall be forever kept up and maintained for the cultivation and propagation of plants, flowers, fruits, and forest trees, and other productions of the vegetable kingdom, and a museum and library connected therewith, and devoted to the same, and to the science of botany, horticulture, and allied objects," to be preserved "to the use and enjoyment of the public for all time," coupled with provisions for the enlargement of the garden, museum, and library, and for the establishment of a fully-equipped school of botany, defines a charity, and creates a charitable trust.

2. A charitable trust will be recognized, protected, and enforced by the courts of chancery, without the aid of St. 43 Eliz. c. 4.

3. The heirs of a testator are not necessary parties to a suit by the trustees of a charitable

trust praying for a decree relieving them from restraints upon their power to alienate the trust property imposed by the will, where the will operated as an immediate devise of the property to the trustees, as the heirs had no interest therein.

4. Where the public is the beneficiary of a charitable trust, the attorney general is the only necessary party to a suit instituted by the trustees relating to their powers and duties.

5. A will creating a charitable trust, and providing that the trustees shall not have the power to make any sale, conveyance, or disposition of the real estate devised, except to lease it for a term not exceeding 60 years, with covenants for a perpetual renewal thereof, does not deny the power of the trustees to alienate the real estate, as the method of leasing amounts to a substantial alienation, but merely limits the form of the alienation.

6. Where a definite charity is created, the failure of the particular mode by which its dominant purpose is to be effectuated will not defeat the charity, for equity will substitute another mode.

7. It being the very essence of a charity that it shall endure forever, lands made the subject of a charitable trust are inalienable, unless by the terms of the trust express power is given the trustees to alienate them.

8. In the absence of an express provision of a charitable trust making land purchased by trustees as an investment of surplus funds inalienable, such lands are not affected by a general provision restraining the alienation of trust lands, or by the rule that lands made the subject of a charitable trust are inalienable.

9. Where testator created a charitable trust, and provided that certain lands devised to the trustees should be leased for the purpose of providing a fund for the endowment of the charity, and denied to the trustees the right to otherwise alienate the same, and at the time of the execution of the will the courts, in construing one of a similar nature which provided that the lands should be leased for terms not exceeding five years, had held that the court had power, where conditions demanded it, to authorize the execution of leases for a longer period, a case is presented for the practical application of the rule that testators are supposed to know the rules by which courts are guided in their administration of the law, as well in the case of charities as in those of individuals, and the testator is conclusively taken to have impliedly agreed that, if it should become impossible to administer the trust in the manner proposed, the court might make any reasonable modification of his scheme which might at any time become necessary.

10. Under an act of the legislature providing that "it shall and may be lawful for" a named person to devise to trustees certain described lands for the creation of a charitable trust therein mentioned, and "by proper or apt words in said last will * * * to provide that no absolute alienation shall ever be made of said lands," or any portion of the same, by the trustee therein appointed, the provision as to alienation is not a binding legislative direction, but is permissive only, conferring a power on the creator of the trust, which it was apprehended there would otherwise be no right or authority to do.

11. While a preamble may be looked to in some cases to elucidate a statute, it can only be done where the language of the body of the act is ambiguous.

12. A statute authorizing the creation of a charitable trust by will, and a devise of lands to trustees, which shall be inalienable by such trustees, is to be construed to imply that the courts should have the same power of administration over this charity which exists under the rules of equity jurisprudence, and which they may exercise as to others; and, where conditions arise making it necessary in the administration of the charity, the court may decree the sale of such real estate.

13. The power of a court of equity to change the form of the administration of a charity from that provided in the instrument creating it is based on a change of circumstances permanent in its nature, making it substantially impossible to literally carry out or observe the forms or details of administration prescribed, or making it necessary to provide another form for administering the trust.

14. Where at the time of testator's death he was engaged in putting to a test his policy of letting property on ground leases, and, in his devise to trustees of a charity, directed that they lease the property devised for the purpose of procuring a fund to endow the charity, and forbade any different alienation, and after his death there developed and became fixed a widespread conviction in the minds of the people against accepting such ground leases, so that the trustees were unable to lease the property, although adjacent property had been improved and was in great demand, and the directions of the testator have become impossible of observance, the court is authorized to vary the details of the administration of the charity, and direct a sale of the property.

In banc. Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Suit by Rufus J. Lackland and others, trustees under the will of Henry Shaw, against Robert F. Walker, attorney general of the state of Missouri, and others, praying for a decree relieving them from the restraints upon their power to alienate the trust property imposed by the will. The relief asked was decreed, and defendant Walker appeals. Modified and affirmed.

Henry Shaw, a native of England, and for many years a prominent citizen of the city of St. Louis, died on August 25, 1889, leaving a last will and testament, dated January 26, 1885, which has been duly probated. The instrument contains legacies to, and other provisions in behalf of, the testator's sister and collateral relatives, his housekeeper, and other employés and servants, and several of his personal friends, and bequests of various sums and other interests to a large number of established charitable institutions. The will is, however, principally devoted to the testator's long-cherished plans in respect of the Missouri Botanical Garden. The provisions in that behalf are as follows:

"I, Henry Shaw, of the city of St. Louis and state of Missouri, of sound and disposing mind, but mindful of the uncertainties of life, and desiring specially to carry out and provide for certain objects which have been the subject of thought and labor and care for many years past, more effectually than I have hereto done, do make, publish, and declare this as and for my last will and testament, hereby revoking all other wills by me at any time heretofore made, in manner following; that is to say:

"First Clause. I give and bequeath unto M. Dwight Collier; Henry Hitchcock; Wm. H. H. Pettus; Dr. John B. Johnson; Adolphus Meier; Wm. G. Eliot, who is now chancellor of the Washington University, and his successor in office; Charles F. Robertson, who is now bishop of the Episcopal Church of the diocese of Missouri, and his successors; David F. Kaime; James E. Yeatman; Judge Sam'l Treat; Joseph W. Branch; Gerard B. Allen; Rufus J. Lackland; Judge G. A. Madill; the president for the time being of the public schools, and his successors in office; the president for the time being of the Academy of Science of St. Louis, and his successors; the mayor of the city of St. Louis, and his successors in office; Dr. Asa Gray, of Cambridge, Mass.; and Prof. Spencer F. Baird, secretary of the Smithsonian Institute, Washington City (the two last named, as honorary trustees, are added to the trust in recognition of their scientific eminence and ability), — the following real and personal property, to wit [specifically describing the tract on which the Missouri Botanical Garden is situate, and also six other tracts of real estate, all lying west of Grand, and within the present limits of said city, and shown in red¹ on the plat hereinafter set forth], together with the improvements thereon; as, also, all the household and kitchen furniture of all kinds and descriptions in the house now occupied by me on the tract of land first herein described by me; as, also, all the plants, trees, flowers, and shrubs contained in the garden grounds, conservatories, green houses, hot houses, and other structures situated therein; all the library and books and paintings in said house and museum building, and stuffed birds and animals in said museum building, and the herbaria of dried and prepared plants and specimens therein; all the implements of gardening, horticulture, and husbandry; and also all farming utensils, horses, cattle, hogs, poultry, hay, grain,...