Musser v. Musser

• Decision Date: 26 March 1920
• Parties: CHARLES MUSSER et al., Appellants, v. CARRIE MUSSER et al., Respondents
• Court: Missouri Supreme Court

221 S.W. 46

281 Mo. 649

CHARLES MUSSER et al., Appellants, v. CARRIE MUSSER et al., Respondents

Supreme Court of Missouri, Second Division

March 26, 1920

Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.

Affirmed.

Carl G Wagner, Frank T. Burnham, Frank W. Yale, and Ernest S. Ellis for appellants.

(1) The will, by its terms, refers to and provides that it shall be construed under the laws of the State of Kansas. This reference and provision makes the law of Kansas as much a part of the will as though it had been inserted verbatim therein. Shulsky v. Shulsky, 98 Kan. 69; Chambers v. McDaniel, 28 N.C. 229; Vestry v Bostwick, 8 App. B. C. 456; 40 Cyc. 1094, notes. (2) The trust sought to be created by the will is not a public charity, and is void on its face, under the laws of the State of Kansas, as being against the rule prohibiting perpetuities of title in estates, because the fund provided can only be used for the benefit of certain persons to be selected and certified by the "school board" from a classification of individuals, which does not arise in the course of nature, but is wholly arbitrary and grows out of and only exists in the "private conventions, class associations and artificial distinctions of men." Troutman v. DeBoissiere, 66 Kan. 1. (3) The power to appoint and certify beneficiaries sought by said will to be conferred upon the "school board" cannot be exercised. Its powers are fixed by statute and it cannot be the recipient of or exercise any power sought to be conferred upon it by an individual. Hence, the intended beneficiaries of the trust cannot be legally ascertained and determined. Harwood v. Tracy, 118 Mo. 637; Dodson v. Scruggs, 47 Mo. 285; Re Hoffer's Estate, 70 Wis. 407; Leman v. Sherman, 117 Ill. 657; Sinking Fund Commrs. v. Walker, 6 How. (U.S.) 143; Shaw v. Payne, 12 Allen (Mass.) 293; Dunbar v. Soule, 129 Mass. 284; McClary v. McLain, 2 Ohio St. 368; English v. Sailors' Snug Harbor, 3 Pet. (U.S.) 99; 1 Perry on Trusts, sec. 296; 35 Cyc. 899 et seq.; 39 Cyc. 272, and notes; 28 Am. & Eng. Ency. (2 Ed.) 965; 12 Am. & Eng. Ency. 301. (4) But even if such power of appointment could be conferred upon the "school board" the provisions of the will are incomplete and insufficient to permit action thereunder, because no standard or measure of the required qualifications of beneficiaries is provided, and no means or method is named by which the facts necessary to be certified may be ascertained. In re Hauck, 70 Mich. 410; Fountaine v. Ravenel, 19 How. (U.S.) 368; Beekman v. Bonsor, 23 N.Y. 298; Grimes v. Harman, 35 Ind. 220; Gallego's v. Atty. Gen., 3 Leigh, 450; Dashiel v. Atty. Gen., 5 Har. & Johns. 392; Hughes v. Daly, 49 Conn. 34; Lepage v. McNamara, 5 Iowa, 124; White v. Fisk, 22 Conn. 31. (5) The trust attempted to be created by the will cannot be sustained as a public charity because the State and the public, through its courts, possess no "admitted right of visitation and control." Troutman v. DeBoissiere, 66 Kan. 1. On the contrary the will by its terms expressly precludes the courts from the exercise of such right and power.

Dwight M. Smith and Goodwin Creason for respondents.

(1) The attack upon the will in question being predicated upon the laws of Kansas, and no laws of Kansas that affect the validity of the will being pleaded, the amended petition of plaintiff below stated no cause of action, and demurrer was properly sustained. Gibson v. Railroad, 225 Mo. 485; Rialto Co. v. Minor, 183 Mo.App. 128; McDonald v. Life Assn., 154 Mo. 628; Lee v. Mo. Pac., 195 Mo. 415; Coleman v. Lucksinger, 224 Mo. 14; Ginnochio v. Railroad, 155 Mo.App. 168; State v. Harty, 208 S.W. 837. (2) Since plaintiff's amended petition alleges the common law to be in force in Kansas, and pleads no statute or decision of Kansas modifying it, a Missouri court in construing the will in question must presume the common law of Kansas to be the same as the common law of Missouri, as found in its own decisions. McPike v. McPike, 111 Mo. 226; Kollock v. Emmert & Co., 43 Mo.App. 570; Jordan v. Pence, 123 Mo.App. 324; Morrissey v. Wiggins Ferry Co., 47 Mo. 525; Bank v. Com. Co., 139 Mo.App. 124. (3) The will in question, under the laws of Missouri, creates a public charity of the most unimpeachable character. Crow ex rel. v. Clay County, 196 Mo. 261; Catron v. Scarritt Collegiate Institute, 264 Mo. 725; Robinson v. Crutcher, 209 S.W. 104; Strother v. Barrow, 246 Mo. 241; Sandusky v. Sandusky, 261 Mo. 357; Hadley v. Forsee, 203 Mo. 426; Buchanan v. Kennard, 234 Mo. 139; Buckley v. Monck, 187 S.W. 34; Cummings v. Dent, 189 S.W. 1161; Sappington v. School Fund Trustees, 123 Mo. 32; Anderson v. Roberts, 147 Mo. 486; Lackland v. Walker, 151 Mo. 257; Chambers v. St. Louis, 29 Mo. 543; Howe v. Wilson, 91 Mo. 45; Powell v. Hatch, 100 Mo. 592; Barkley v. Donnelly, 112 Mo. 561; Missouri Hist. Society v. Academy of Science, 94 Mo. 466. (4) The will is equally valid under Kansas statutes and decisions, as well as general law relating to charitable trusts. Troutman v. DeBoissiere, 66 Kan. 1; Washburn College v. O'Hara, 75 Kan. 700; Keeler v. Lauer, 73 Kan. 393; Secs. 9850, 9840, 9841, 7443, 7445, Statutes of Kansas 1909; 5 R. C. L. 309; 11 C. J. p. 361, sec. 20. (5) Since the will creates a valid public charity, and provides competent trustees to take title, the heirs-at-law have no interest in the estate, and the plan provided in the will for designating beneficiaries does not concern them. W. C. A. v. Kansas City, 147 Mo. 103; Academy of Visitation v. Clemmens, 50 Mo. 167; Crow ex rel. v. Clay County, 196 Mo. 261; Sandusky v. Sandusky, 265 Mo. 234; Glaze v. Allen, 213 S.W. 785; Mott v. Morris, 249 Mo. 147; Barkley v. Donnelly, 112 Mo. 570; Harwood v. Tracy, 118 Mo. 631; 5 R. C. L. 299, 309, 370; 11 C. J. 342.

OPINION

WALKER, C. J.

This action was brought in the Circuit Court of Clay County to obtain a construction of the will of Benjamin Musser. A demurrer to the petition, which alleged that it did not state facts sufficient to constitute a cause of action, was sustained. Refusing to plead further, a judgment was entered against the plaintiffs, who thereupon appealed to this court.

The property devised was located in Jewell County, Kansas. The will provided for the probating of same in that county and that it was to be construed under the laws of that State.

The petition alleged the invalidity of the will in that by its terms it created a private charity, in violation of the common law in force in Kansas applicable thereto, and was hence void. The sufficiency of the petition is assailed as to the manner in which it pleads the existence of the common law in that State.

Under Section 9850, General Statutes of Kansas 1909 (Dassler), set forth in the petition, it is provided that "the common law as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this State."

The effect of the pleading of this section extends no further than to declare the common law in force in Kansas as therein stated, and to render unnecessary any presumption that might otherwise obtain on account of that State not having been carved out of the original territory subject to the law of England. Considered in any other sense the pleading of this statute is a mere conclusion. [Gibson v. Railroad, 225 Mo. 473.]

Other sections of the statutes of Kansas pleaded are irrelevant to the determination of the matter at issue.

The manner in which the common law is pleaded is as follows:

"That the common law in force and in effect in the State of Kansas is and was, at all the times herein mentioned, in part as follows:

"That where a conveyance or will attempts to create and vest property in trust in perpetuity in trustees and their successors for the benefit of beneficiaries therein designated, the instrument is void on its face as violating the rule against perpetuities of title in estates, unless the trust so attempted to be created constitutes a public charity.

"The beneficiaries of a valid public charity must partake of a quasi-public character. The public must be under obligations to them as a class; as a class they must have some claim upon the public and that claim must be one founded in nature and cognizable by the instincts of a common humanity; it cannot be one growing out of or existing in the private conventions or class associations or artificial distinctions of men. Public charities may be restricted to a particular class in the State or of its municipal divisions, but they must be general for all the designated class within the particular municipality. Such classification must be based on some obvious natural distinction, having reference to the merits hoped to be attained. It must not be arbitrary or artificial. The class must stand in a natural and meritorious relation to the public at large. A gift for a general public use must be for an object which the State itself ought or lawfully might endow and support with public resources.

"The rule against perpetuities was devised to prevent the perpetual entailment of estates and to give them over to free conveyance. That rule should not be relaxed except in the interest of the general public, and it is not relaxed except where the public itself holds the title and is the trustee, or, if not holding the title and acting as the trustee, possesses an admitted right of visitation and control.

"The right and power of visitation on the part of the State is lodged in the courts having equitable jurisdiction, to be exercised at the instance of the Attorney-General of the State, and unless the trust be of such a nature as that the Attorney-General might bring an information in the...