Musser v. Musser

• Citation: 221 S.W. 46,281 Mo. 649
• Decision Date: 13 March 1920
• Docket Number: No. 20463.,20463.
• Parties: MUSSER et al. v. MUSSER et al.
• Court: United States State Supreme Court of Missouri

221 S.W. 46

281 Mo. 649

MUSSER et al. v. MUSSER et al.

No. 20463.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Motion for Rehearing Denied March 26, 1920.

Appeal from Circuit Court, Clay County; Frank P. Divilbiss, Judge.

Action by Charles Musser and others against Carrie Musser and others for the construction of a will. From a judgment against plaintiffs on their refusal to plead further after the demurrer to the petition was sustained, plaintiffs appeal. Affirmed.

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

Dwight M. Smith and Goodwin Creason, both of Kansas City, for respondents.

WALKER, 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, Nan. 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 conditions 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, 125 S. W. 453.

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 courts to enforce its administration, it cannot be a public charity.

"In the state of Kansas the public duty which the the Attorney General may sue to enforce, or the public wrong which he may sue to prevent, must be a duty or a wrong affecting the whole community, or affecting the community in general, or a matter affecting the interests of the entire public. A charity which the Attorney General of the state of Kansas can sue to enforce or conserve must be a charity of a character so public as to interest the whole community — the community in general — the entire public."

I. Remote as the inquiry may seem upon a superficial consideration of the subject, the question as to what is meant by the "common law in force in Kansas" demands solution before it can be intelligently determined whether the petition is, as was held by the trial court, fatally defective in not' properly pleading that law.

The opinions of many of our courts of last resort, including our own, state generally that the common law "imports a system of unwritten law not evidenced by statute, but by traditions and the opinions and judgments of the sages of the law." The Supreme Court of the United States has in several instances (West. U. Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; Kansas v. Colo., 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956) answered the inquiry by quoting the language of Kent (1 Com. 471) that "the common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the Legislature." These definitions afford us little aid in the present inquiry. In what manner is it to be determined, according to any definite and uniform plan which will serve as a rule `for judicial guidance, what the "traditions" are, and who are the sages "whose opinions and judgments" are to enlighten us as to what constitutes the common law? If "principles, usages, and rules of action" are to afford the required enlightenment, in what do these essentials consist, from what sources are they to be derived, and how is their uniformity to be determined in any particular case? There is, says Mr. Justice Ewart in effect in discussing this question (4 Can. L. J. 95) —

"a short way of settling it. If there was or is any true body of law known as the common law apart from the decisions of the courts, let him who asserts the fact quote or otherwise refer us to a single item of it. The Leges Barbarorum we know; the laws of Justinian we know; the laws of the Twelve Tables (B. C 500) we know; even the laws of Hammurabi of Babylon (B. C. 2250?) we know, and can quote from. Will somebody please furnish us with an extract from the common law of England?

"Surely this can easily be done. Go to the law reports and read to us. The judges, if they were deciding according to this `true body of law,' will undoubtedly so indicate. No; these modern judges seem to know nothing of it. Open, then, these musty old Year Books; thumb them all. No? Try the Rolls — back as far as John's reign. Nothing there? Well, don't despair; in the works of Bracton (Chief Justiciar of England 1265-1267), or in those of Glanvil (the oldest writer on English jurisprudence, and Chief Justiciar of England in the reign of Henry II), there must be some trace of this `true body.' Not a word?

"Well, where did these judges and writers get the law that they tell us of? Mr. Justice McClain would answer:

"`By ascertaining what it was customary for English judges to decide in like cases. The reading of Bracton himself, beyond the introductory pages, proves conclusively the fact. * * * He refers to decisions of the courts, although he is compelled to do so from current or personal knowledge, as reported decisions were as yet apparently unknown; and instead of announcing general principles, borrowed from any code, or pandects, or digests, he tells what was decided in an assize of mort d'ancestor, etc. * * * His successors were the digesters and abridgement makers — Fitzherbert and Brooke and Rolle and Viner — and these men concerned themselves with the decisions of the English judges, and prepared the way for Coke and Hale and Blackstone, the great expounders of the distinctively English system of law.' (Address, American Bar Assn., 1902.)

"If I am to be told that nobody says that anybody can give extracts from the common law, and that what is meant is that the common law consisted of certain well-known principles upon which the decisions were based, then ask profert of one of these principles. And if it be alleged that production is impossible, for that the said principles were in the mind or heart, or consciousness, of the people, and not otherwise or elsewhere, I still require at least a hint as to what they looked like before be. lieving in their corporeality."

Prior to the appointment by William I of a Chief Justiciar who was a permanent judicial officer having supreme jurisdiction throughout England, there may have been in existence customs and usages by which law was crudely administered by the Saxon local folk courts; but when professional judges were created, which followed the appointment of the judicial officer, they at once commenced to...