Lackland v. Walker

• Decision Date: 30 June 1899
• Citation: 52 S.W. 414,151 Mo. 210
• Parties: Lackland et al., Trustees under Will of Henry Shaw, v. Walker, Attorney-General, Appellant
• Court: Missouri Supreme Court

52 S.W. 414

151 Mo. 210

Lackland et al., Trustees under Will of Henry Shaw, v. Walker, Attorney-General, Appellant

Supreme Court of Missouri

June 30, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

STATEMENT OF THE CASE.

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 employees and servants, and several of his personal friends; and bequests of various sums and other interest to a large number of established charitable institutions. The will is, however, principally devoted to the testator's manifestly 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 labour and care for many years past, more effectually than I have heretofore 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 successors 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 Samuel 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 situated, and also six other tracts of real estate, all lying west of Grand and within the present limits of said city, and shown in red 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 buildings, 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, provisions, and groceries in and about the said premises herein first mentioned and conveyed, and the houses, stables and barns situated thereon. To have and to hold the said real and personal property to them and the survivors of them, and their assigns in office, forever, in trust, however, for the following uses and purposes, as joint tenants in common, to wit: Whereas, I have for many years been engaged in laying out and establishing a botanical garden, with a museum and library connected therewith, upon a portion of the tract first described, and which is now known as the Missouri Botanical Garden, with the design at the time of my death to convey the same, with other property, to trustees, for the object and with the view of having for the use of the public a botanical garden easily accessible, which should 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; and whereas, as a means of enabling me more effectually to secure the object I have in view and to preserve the same as to the use and enjoyment of the public for all time, the General Assembly of the State of Missouri did pass an act, entitled an act to enable Henry Shaw to convey and devise to trustees certain lands, which was approved of on the 14th day of March, 1859; and as it was with the design of carrying out the purpose and object upon which I have been so long engaged, and availing myself of the power given me in said act so far as necessary, I have herein given, devised and bequeathed to said trustees the property herein specified. I do now declare the uses, purposes and trusts which said trustees hold the said property to be as follows:

"First The said trustees shall not have the power to make any sale, conveyance or disposition of the real estate herein devised to them, or any portion thereof, except as herein specified.

"Second. Said trustees shall forever keep that portion of the said tract first described, which is now occupied by the Botanical Garden, Fruiticetum, Arboretum, Museum, my residence, with such other extent of land as from time to time they may find it expedient or necessary to add thereto for the extension of the said botanical garden and grounds, including the residence of the director thereof, as a botanical garden for the propagation and cultivation of specimens of plants, flowers, (and) fruit and forest trees, for the promotion of science and knowledge, which shall be kept open during such hours and under such regulations as they shall prescribe every day, except Sundays, for the use of the public at large.

"Third. The residue of the real estate not required for the immediate purposes of the said botanical garden in extending the same, whenever it shall appear or seem to the said trustees necessary, shall from time to time, as the same can be advantageously done, be leased by said trustees as follows: Such portions thereof as can be advantageously leased upon building leases, shall be leased for a term not exceeding sixty years, with a provision in such leases for perpetual renewal thereof for succeeding terms of not more than sixty years, at a rent to be fixed by valuation to be made as therein provided at each term of renewal. Such leases shall also contain a provision that the lessee, as a part of the rent, shall pay all taxes, general and special, and assessments that may be levied or assessed upon said land so leased. It is my design and object not only that the land so leased shall afford an income or revenue for the support of the said botanical garden, but that it may in the future be so leased as by its improvement its contiguity may be pleasant and attractive to the visitors and students of the botanical garden. The said trustees may lease the cottages already erected, and such portions of the said real estate hereinbefore devised as they do not use for the garden, and can not profitably lease for building purposes, on short leases to nurserymen, florists, vegetable and market gardeners, and others.

"Fourth. Of the trustees herein mentioned to whom the real and personal property is hereby devised and bequeathed, the Mayor of the city of St. Louis, and the Chancellor of Washington University, the Bishop of the Episcopal Church, the President of the Public Schools, and the President of the Academy of Science, are hereby constituted such trustees by virtue of their offices, and not as individuals, and upon their ceasing to be such officers, their functions as such trustees (shall) cease and their successors in office (be) immediately vested with such title to the property, and such rights and duties in relation to the said trust as was possessed by the person ceasing to be such officer. In the event of death resignation, removal from the city, or permanent inability to serve, of any of the said trustees, the remaining trustees will proceed to elect some person fitted by his social position, character and tastes to fill the vacancy; and when any person shall be elected to fill any such vacancy, the other trustees shall by proper instrument clothe him with the same trusts, interests and power over the said trust property as was possessed by the trustee in whose place he was elected. In the event of the death of the said Eliot or the said Robertson, I recommend to the said trustees to fill the vacancy by electing the person who shall succeed to the office or station of the deceased persons above named, and that such selection may be continued to be made upon the death of the individual holding of such office and station, so long as the trust shall endure. The said trustees and their successors in office as herein provided, shall constitute a board of trustees, and said board shall keep written minutes of their proceedings, shall appoint such executive of such board as they may think fit, and the acts of a majority of the members of said board, done at any meeting regularly held or called, shall be deemed or taken, for all the purposes of the trust, to be the doings and actings of said board and of said trustees; and due notice of any such meeting shall be given by written or printed notices deposited in the post office...