Leopold Schmucker's Estate v. Reel

• Decision Date: 31 January 1876
• Parties: IN THE MATTER OF LEOPOLD SCHMUCKER'S ESTATE v. JOHN H. REEL, Executor, Appellant.
• Court: Missouri Supreme Court

61 Mo. 592

IN THE MATTER OF LEOPOLD SCHMUCKER'S ESTATE

v.JOHN H. REEL, Executor, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Bakewell & Farish for Executor.

I. This is an absolute bequest to John Reel. He can do as he pleases with the money. The expressions of the purposes of the gift are merely descriptive of the motive of the testator. (Redf. Wills, 712, 713, and notes.)

II. The word “minister” is always applied to a Protestant minister, never to a Catholic priest. The peculiar function of a Catholic priest is to say mass. Nothing is said in the constitution about priests, or bequests or gifts to priests, or for masses.

Where the meaning of the constitutional clause is doubtful, the exercise of a private right alleged to conflict with it, must be held valid. (F. & M. Bk. vs. Smith, 3 Serg. & Rawle, pp. 63-73.)

III. The legacy is not void for uncertainty. (Gloucester vs. Wood, 3 Hare, 131, and cases cited; Legge vs. Argill, 1 T. & Russ., 265, and note; Gibbs vs. Rumsey, 2 Ves. & Beam., 244; Att'y Gen'l vs. Herrick, Ambler, 712; Acc'd Visitation vs. Clemens, 50 Mo., 167; Magridge vs. Thackwell 2 Ves. Ch., 84; Cook vs. Duckenfield, 2 McKyns, 562.)E. C. Kehr, for Respondent.

I. The trusts attempted to be created by the will being so vague and uncertain that the cestui que trusts cannot be definitely and accurately determined, the bequests must fail. (2 Redf. Wills, 2 ed., §§ 2, 4, 5, p. 409, 410; 2 Id., 781-2; Id., § 18, p. 506-7; 2 Sto. Eq., § 979 a;Fontaine vs. Ravenal, 17 How. [U. S.], p. 369; Vesey vs. Jameson, 1 Sims & S., 69; Morice vs. Bishop of Durham, 9 Ves., 399; 10 Ves., 522; James vs. Allen, 3 Meriv., 17; Mayor of Gloucester vs. Wood, 3 Hare, 131, affirmed in 1 H. L. Ca., 272; Briggs vs. Penny, 3 DeG. & Sm., 525; 2 Redf. Wills, 2 ed.,k., p. 426; Wheeler vs. Smith, 9 How. (U. S.) 55-80; Norris vs. Thompson's Ex'r, 4 C. E. Green [N. J.] ____; Fowler vs. Garlike, 1 Russ. & My., 232.)

II. The bequests cannot be upheld as charitable trusts, because: 1st. As the purposes of the trusts are not designated in the will it cannot be determined whether they are in fact charitable or not. (Mayor of Gloucester vs. Wood, supra; Briggs vs. Penny, supra.) 2d. On the contrary the clause of the will which directs that the receipt of the archbishop, or of the person in charge of the religious institutions named, shall be a discharge to the trustee, negatives any general charitable intention on the part of the testator; but, 3d. If made to evade the law the true character of the bequests may be proved aliunde. (2 Redf. Wills, 787, and note; Id., 2 ed., § 30, p. 511, and cases cited in note 79; Id., 3 ed., § 4, p. 511; Strickland vs. Aldridge, 9 Ves., 516; Tudor Char. Tr., 88.)

III. It appears from the testator's secret instructions to Reel, that the bequests are to be bestowed for masses for the testator and his wife after death. They do not therefore constitute charitable uses. (2 Redf., 2 ed., § 5, p. 496-7, and authorities cited; Id., § 40, p. 517: Tud. Char. Us., p. 26, and authorities cited; Sto. Eq. Jur., § 1182; West vs. Shuttleworth, 2 My. & K., 684; Attorney General vs. Hurst, 2 Cox, 364; Corbyn vs. French, 4 Ves., 419-33; DeThemmines vs. DeBonneval, 5 Russ., 288; Heath vs. Chapman, 2 Drew, 417.) Bequests to be given in private charity are not public charities, and cannot be administered by the courts of equity as such, and being void as trusts, on account of their indefiniteness, will go to the next of kin. (2 Redf., 779; Id., 2 ed., § 16, p. 504.) To be protected as a charitable trust, the bequest must be exclusively charitable. (2 Redf., 830; Sto. Eq. Jur., § 1154, d; Norris vs. Thomsen, 4 C. E. Green, 307.)

IV. The bequests in Schmucker's will are in evasion and contravention of § 13 of Art. I. of the Constitution of Missouri. (Wagn. Stat., 36.) And the evasion of and fraud upon the constitutional provision may be shown, and being shown, vitiate the bequests. (Tud. Char. Tr., 88, citing: Boston vs. Statham, 1 Ed., 508; Edwards vs. Pike, 1 Ed., 267; Mackleston vs. Brown, 6 Ves., 52; Strickland vs. Aldridge, 9 Ves., 516; Pilkington vs. Boughey, 12 Sim., 114.)

WAGNER, Judge, delivered the opinion of the court.

The exceptions in this case arise wholly out of the ruling of the court below in holding certain provisions in the will of Leopold Schmucker void. The following are the portions of the will thus held to be void, and which now form the subject of controversy:

1st. “I give and bequeath to John H. Reel two hundred dollars, to be applied to a specific purpose which I have explained to him.

2d. I give and bequeath to John H. Reel the further sum of five hundred dollars for another and specific charitable purpose which he well understands.

3d. The balance of my property of every description, I give, devise and bequeath to John H. Reel, to apply in charity, according to his best discretion, and I appoint said John H. Reel executor of this, my will.”

The will then continues: “And whereas I hope, that Mr. Reel aforenamed will consent to act as my executor, and desire to save him all trouble and annoyance in that regard, and have every confidence, good faith and discretion, and have explained to him to what charities I desire him to appropriate the monies herein bequeathed to him, it is my will that my said executor be held to no accountability whatever for the non-performance or ill-performance of the trust herein confided to him; he will use his best discretion in the matter, and the receipt of the acting Archbishop of St. Louis of the Roman Catholic church in Missouri or Kansas, shall be a full discharge to him pro tanto for any monies applied by him to charities according to my request.”

To invalidate the will and sustain the judgment of the lower court, it is insisted, first, that the trusts attempted to be made are so vague and uncertain as to render them incapable of being carried into effect according to law; and, second, that the attempted bequests are in violation of the constitution of this State and void.

On the other hand it is contended that the bequests to the executor vested him with the absolute title to the property, and that the words of the testator expressing a desire that he should use it in a certain way, have no binding force.

Courts of equity have frequently discussed the question as to the force of words or expressions of recommendation in wills in regard to the use to which the testators might desire the persons to whom they had given legacies to put the same. The prevailing doctrine is, that no particular form of expression is requisite in order to create a binding and valid trust; and that words of recommendation, request, entreaty, wish or expectation, will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the object of the trust. (Reeves vs. Baker, 18 Beav., 372; Macnab vs. Whitbrad, 17 Beav., 299; Jarm. Wills, 336; 2 Redf. Wills, 2 ed., 410.)

Where a bequest is for a purpose of liberality or benevolence, or private charity, and is of a nature so general and undefined as to be incapable of being executed by the court, it fails altogether, and the heir at law or the next of kin, as the case may be, becomes entitled to the property, as in cases of bequests void by the statute. (Morice vs. Bishop of Durham, 9 Ves., 399; S. C., 10 Ves., 521; Ommanney vs. Butcher, 1 Turn. & Russ., 260; Ellis vs. Sebby, 1 My. & Craig, 286; Fowler vs. Garlike, 1 Russ. & M., 232; 2 William's Ex'rs, 2 Am. ed., 787.)

Bequests for purposes of benevolence and general liberality, such as the trustee shall approve or direct, cannot be supported either as general trusts or for charitable uses. In Morice vs. Bishop of Durham (9 Ves., 399) Sir William Grant, M. R., in discussing the different trusts and the principles of law applicable to them, lays down the following propositions; First, If property is given to one with a mere recommendation that he apply a portion of the income in a particular mode, intending to leave it optional with the donee, the gift is absolute; Second, If the donee is a mere trustee to carry into effect the purposes of the testator in regard to certain persons intended to be benefited, but not sufficiently identified in the will, the property is undisposed of, and courts of equity will not attempt to carry those purposes into effect by conjecture merely, but will regard the property as belonging to the heir, or the next of kin, as the case may be.

Now it is sufficiently apparent here that this will cannot be brought within the first of the propositions above laid down. The testator did not intend to leave it optional with the devisee or executor, as to whether he would apply the bequests or not. He first gives and bequeaths two hundred dollars to be applied to a specific purpose which he had explained to the donee. There is no mere recommendation that the application should be made if the executor saw proper to act at his will and discretion; but the bequest is made for a defined object, a specific purpose which the testator had explained, but which he did not see fit to embody in the will. The same remarks are equally applicable to the second bequest of five hundred dollars. That amount is also given for another specific charitable purpose, which the executor or donee well understood. The residuum is then devised and bequeathed to the executor to apply in charity, according to his best discretion; but this is immediately explained in the succeeding clause, in which the testator says that he has every confidence in the good faith and discretion of the executor, and that he has explained to him in what charities he desired him to appropriate the moneys, and that the receipt of the acting Archbishop of St. Louis of the Roman Catholic church, or of the person or persons in charge of any religious or charitable institution of the...