Mott v. Morris

• Citation: 155 S.W. 434,249 Mo. 137
• Parties: MOTT et al. v. MORRIS.
• Decision Date: 28 March 1913
• Court: Missouri Supreme Court

155 S.W. 434

249 Mo. 137

MOTT et al. v. MORRIS.

Supreme Court of Missouri. Division No. 1.

March 28, 1913.

1. CHARITIES (§ 37) — CHARITABLE TRUSTS — "CY PRES."

`Cy press" is the doctrine of approximation in charitable trusts whereby the intent of a testator or grantor, which is impossible or impracticable literally, is carried out as near as possible.

2. CHARITIES (§ 48) — CHARITABLE TRUSTS — CONSTRUCTION.

Where property was conveyed to trustees of two religious denominations for a site upon which to erect a church to be owned and held by the trustees and their successors for the two churches, neither church nor its trustees to convey away its half interest for other than church purposes, the trustees of the two churches cannot, by uniting in a conveyance of the property, dispose of it for other than church purposes.

3. CHARITIES (§ 13) — CHARITABLE TRUSTS — WHAT CONSTITUTES.

A grant of property to trustees to furnish a site for a church is a charitable trust.

4. CHARITIES (§ 48) — CHARITABLE TRUSTS — REVERSION.

A charitable trust is favored by the law, and perpetuity is an essence of such a trust; consequently, in the absence of provisions to the contrary, such a gift is one in perpetuity and is unalienable except for the purpose of the gift, and under no circumstances will it revert to the grantor or his heirs.

5. CHARITIES (§ 38) — CHARITABLE TRUSTS — CONSTRUCTION.

Conditions subsequent and forfeitures are not favored by the law and will not arise in deeds by mere implication unless the implication is a necessary one; consequently, where property was conveyed to trustees for a site for a union church with the sole inhibition that the trustees of neither church could convey away its interest for other than church purposes, no condition subsequent or right to forfeiture which will cause the property to revert to the grantor or his heirs can be raised by implication.

6. DEEDS (§ 90) — CONSTRUCTION.

In cases of doubt a deed must be construed most favorably to the grantee.

7. DEEDS (§ 93) — CONSTRUCTION — INTENT OF GRANTOR.

A deed is to be construed by its four corners; the intent of the grantor being the principal thing.

8. CHARITIES (§ 50) — STATUTORY REMEDY — SCOPE.

An action under Rev. St. 1899, § 650, providing that a party in or out of possession may bring an action to determine his right and title to land, is not a proper action in which to determine the question of the right of the trustees of a charitable trust to sell the trust property and adjudicate the interest of the grantor's heirs.

9. APPEAL AND ERROR (§ 183) — OBJECTIONS BELOW — FORM OF ACTION.

Where trustees of a charitable trust brought an action under Rev. St. 1899, § 650, to determine their rights to sell the property and adjudicate the interest of the grantor's heirs therein, they are estopped from objecting on appeal to the propriety of the form of action; all parties having submitted to the determination of their interest without objection.

Bond, J., dissenting in part.

Appeal from Circuit Court, Clark County; Charles D. Stewart, Judge.

Action by H. B. Mott and others against Lizzie Morris. From a judgment for defendant, plaintiffs appeal. Reversed in part and affirmed in part.

J. A. Whiteside, of Kahoka, and W. T. Rutherford, of Jefferson City, for appellants. John M. Dawson, of Jefferson City, for respondent.

LAMM, J.

The case is this: In 1881 Mr. Cooper and his wife executed two deeds, for expressed nominal considerations, to five named individuals as "party of the second part," described therein as "trustees for the Methodist Episcopal Church of Wayland City and the Protestant Methodist Church of Wayland City, Clark County, Missouri." These deeds conveyed one lot and part of another in that village, and ran to the named trustees and their "successors and assigns." The habendums held the usual covenants of warranty, covenanting to "warrant and defend the title to the said premises unto the said party of the second part and unto their successors and assigns forever," etc. In the body of the deeds it is set forth that a one-half interest is conveyed to "said trustees in trust for the Methodist Episcopal Church aforesaid," and the other one-half interest is conveyed "to said trustees for the Protestant Methodist Church aforesaid." Next follows these provisions: "This conveyance is made to said trustees, and said lot is conveyed to them for a site or lot upon which to erect a union church, to be owned and held by said trustees and their successors for the two churches above named neither church nor its trustees are to convey away its half interest for other than church purposes. It is further understood and agreed that the church building to be erected on said lot when completed is to be used as a house of worship by the denominations above mentioned and when not occupied by either of said denominations, said church building may be used by any other orthodox or Christian church for public worship." Say 30 years later, seven named plaintiffs bring suit in the Clark circuit court. Three describe themselves as trustees of the Methodist Protestant Church, and four as trustees of the Methodist Episcopal Church; both churches being "unincorporated associations." They impleaded defendant as the only heir of the Coopers, who died intestate.

The ostensible object of the suit is to try, determine, and adjudge title under former section 650, R. S. 1899. To that end the fact of the execution and terms of the deeds are set forth. It is alleged that a frame church building was erected on the land and thereafter used for church purposes, and that defendant is the sole heir of the grantors. Then follows this frank allegation (in a sense, the life of the bill and proclaiming its purpose), to wit: "Plaintiffs further state that they no longer have any use for said premises for church purposes and now desire to sell the same to be used for other than church purposes, but are unable to do so, for the reason that the defendant, Lizzie Morris, claims to have some sort of reversionary interest in said premises, and by reason of such claim, plaintiffs are unable to sell said premises." Defendant answered admitting that certain of the plaintiffs are trustees of the one and certain of them trustees of the other church; that both churches are unincorporated associations; that the conveyances were made by her ancestors with the provisions and for the purposes named in the bill; that a church building was erected thereon and used for church purposes; that she is the sole heir of the grantors, but denying all other allegations. It avers that no consideration was paid for the conveyances; that they were "a gift" to the named trustees for the uses and purposes mentioned in the deeds. It next repleads the provisions of the conveyances, setting them forth more fully than in the bill, concluding as follows: "Defendant, further answering, says that she is the only heir at law of the grantors of said lot, and has not, and never did claim, any right, title, or claim to said lot except as hereinafter mentioned, the reversion, to wit: That so being the heir and daughter of the donors of said lot to said trustees, she has the right to have the wishes of her father and mother carried out so far as they are stated and requested in said deed of conveyance and that the same be not diverted or put to any use except as the wishes of her said father and mother in that behalf in said deed of conveyance expressed. She further says that there is nothing for this court to construe in said deed, as the provisions therein are plain and plainly express the purpose of the grantors therein and their express wishes as therein stated. Defendant further shows the court that this suit is brought for the purpose of obtaining a decree of this court, allowing the said trustees and their successors to sell said lots and the buildings thereon erected to private parties for the personal purposes of said parties and not for the purpose of carrying out the wishes of said grantors, but for the express purpose of diverting said charitable trust for other and different uses and purposes than those expressed on said deed and for the purpose of diverting the uses and purposes of said charitable trust, and that the said trustees are threatening and will, unless restrained by a decree of this court, sell said lots and the buildings thereon erected to private persons for their own private uses and in direct opposition and contrary to the trust therein created by said deed. Wherefore this defendant asks that said deed be construed as therein provided, and that this court refuse to construe said deed and the provisions thereof so as to enable said trustees and their successors in office from diverting said trust estate and from selling the same for other purposes than expressed in said trust deed, and that they and their successors be forever enjoined and restrained from selling said buildings and the lots upon which they are erected to any one or to any persons contrary to the terms of said trust as created in said deed and to vest title in defendant and for other proper relief."

The trial proceeded on admissions in pleadings and those made ore tenus. Thus it was admitted that the land was a "donation" to the trustees of the churches for a "nominal consideration"; that the Methodist Episcopal Church do not use the building in question as a place of worship, but now have their own independent church in Wayland; that the Protestant Methodist Church have not "sufficient congregation to have services, and for that reason are not occupying the church; and that all denominations that hold services at Wayland have houses of worship and this church is unoccupied and vacant."

(Note: A question being sprung below on the scope and import of the foregoing admissions, testimony went in pro and con on the issue whether any money consideration was actually paid. On one side, it tended to show...