Powers v. Johnson

• Decision Date: 05 November 1957
• Docket Number: No. 29913,29913
• Citation: 306 S.W.2d 616
• Parties: Raymond S. POWERS, Eula R. Creswell, James A. McCullough, Margaret Siress, Bennett R. Wood, M.D., Mrs. Edward Grace, Eugene Downes, George Downes, Augusta Landweh and Lorenz H. Twillmann (Plaintiffs), Appellants, v. Ray L. JOHNSON, Robert W. Maysack, Laurel Hill Memorial Gardens, Laurel Hill Cemetery Association and Plymouth Securities Company (Defendants), Respondents.
• Court: Missouri Court of Appeals

Page 616

306 S.W.2d 616

Raymond S. POWERS, Eula R. Creswell, James A. McCullough Margaret Siress, Bennett R. Wood, M.D., Mrs. Edward Grace Eugene Downes, George Downes, Augusta Landweh and Lorenz H Twillmann (Plaintiffs), Appellants, v. Ray L. JOHNSON, Robert W. Maysack, Laurel Hill Memorial Gardens, Laurel Hill Cemetery Association and Plymouth Securities Company (Defendants), Respondents.

No. 29913.

St. Louis Court of Appeals, Missouri.

Nov. 5, 1957.

William J. Becker, Clayton, for appellants.

Biggs, Hensley, Curtis & Biggs, Ward Fickie, St. Louis, for respondents.

HOUSER, Commissioner.

For a succinct statement of the object, general nature and background of this case reference is made to the opinion of the Supreme Court transferring the cause to this court for lack of jurisdiction. Powers v. Johnson, Mo.Sup., 302 S.W.2d 899.

The petition of the cemetery lot owners charged that defendants Johnson and Maysack deprived plaintiffs of their 'rights, interests and equities' in their burial properties 'by devious schemes, devices, procurements, manipulations, transfers and general fraudulent conspiracy'; that Johnson and Maysack operate, manage, control and dominate the Corporation, the Association, Plymouth and the cemetery; that none of the defendants had paid any part of the perpetual care fund to the St. Louis County Clerk, Court or Council as required by Sec. 214.150 ¹ or made annual reports to those officials; that the funds received by defendants from the sale of cemetery lots have been diverted and used for defendants' personal and individual purposes rather than having been placed in trust as required; that in violation of law and of the charter of the Association and for their sole use and benefit defendants now propose to build a mausoleum, chapel and funeral parlor on the cemetery grounds and enter into the funeral business and intend to construct the buildings with funds lawfully belonging to the Association; that defendants Johnson and Maysack have established a monopoly in the sale of monuments and grave markers by refusing to permit lot owners to install any marker other than a bronze marker on a grave and insisting upon setting the concrete foundation therefor, charging such a high price as to make it impossible for any other monument dealer to sell a marker; that defendants have been selling burial lots in portions of the cemetery which have not been plotted according to plats recorded in the office of the recorder of deeds and have failed to file a plat designating, year by year, the cemetery lots sold by them in the various parts of the cemetery, in violation of state law. Plaintiffs alleged that they have no adequate remedy at law and that 'the nonexistence of the perpetual care fund, as aforesaid, renders their investment in burial lots in said cemetery useless, valueless,' etc. Plaintiffs prayed for an accounting of the moneys held as a part of the perpetual care fund; that defendants be directed to turn the perpetual care fund over to the county clerk to be managed by the county council for the use and benefit of the lot owners; that defendants be enjoined from (a) diverting the perpetual care fund moneys to their own private use and benefit; (b) operating a funeral home on the cemetery property without the permission of the lot owners; (c) creating a monopoly in the sale of grave markers within the cemetery, and (d) selling burial lots from unrecorded plats. Plaintiffs further prayed 'that the equities, rights, interests and ownerships' as between the lot owners and defendants affecting the property known as Laurel Hills Cemetery be fully adjudicated and determined; that a receiver be appointed to take possession of the books, papers and properties of the defendants affecting the business of the cemetery, with authority to manage, operate and control the business of the cemetery pending the outcome of this action, and that the court make and enter such other and further orders, judgments and decrees in the premises as to the court may seem proper and just.

The answers of the several defendants denied all charges of wrongdoing and challenged the right of plaintiffs to maintain this action, claiming that plaintiffs are not the real parties in interest; that plaintiffs merely lent their names to the action and that the Monument Dealers Association of St. Louis County is the real party in interest.

Certain points raised in appellants' amended brief have been eliminated from our consideration by the Supreme Court in its transfer opinion, Keen v. City of St. Louis, Mo.App., 189 S.W.2d 139, namely, the necessity of an accounting by defendants to the perpetual care fund for additional moneys and the question of the correctness of the amount of money in that fund.

The only controversy remaining for decision relating to the fund is whether it must be placed in the custody of the county council because of the provisions of Secs. 214.150-214.180, both inclusive.

Section 214.150 provides:

'The county courts of the respective counties of this state shall become trustees and custodians of any fund or funds which may be created by any person or persons, firm or corporation, for the purpose of maintaining in part or in whole any public or private cemetery in their respective county. When a gift or bequest is made to said county court they shall accept the same upon the terms and conditions of said gift or bequest and administer said trust fund as herein provided and make report to the circuit court annually showing in detail the manner in which said trust fund or funds have been managed.'- Section 214.160 prescribes the kinds of securities in which the court must invest such trust funds and regulates the use of the income therefrom.

Section 214.170 provides for the administration of the income either by the court or by some responsible individual or organization appointed by the court, annual reports, etc.

Section 214.180 relates to records of receipts, disbursements and management of such trust funds.

Appellants take a position to which we cannot subscribe, namely, that the foregoing sections require that the perpetual care funds of all cemeteries, public and private, including the fund established under the contract between Plymouth and the Association in 1923, must be administered by the county court, or in this instance by the county council. We rule that Secs. 214.150-214.180, supra, authorized and empower but do not compel county courts (in St. Louis County the county council) to act as trustees and custodians of trust funds for the maintenance of public or private cemeteries and that such bodies are required to accept and administer such trusts only, if and when they are designated as such trustee and custodian by the act of a trustor, donor or testator. The county council has nothing to do with the administration of this trust for the reason that the Association has been properly authorized, by its articles of agreement as a pro forma decree corporation and by virtue of its contract with the Corporation, to receive and administrater as a perpetual care trust fund all sums paid to it under and by virtue of the terms of the contract of 1923 between the Association and Plymouth and its successors, and the Association is qualified and empowered by law to act as such. This construction follows from a consideration of the history of the laws relating to private cemeteries, the title of the act in question, the very wording of Sec. 214.150 and accepted principles of statutory construction.

Laws of 1857, First Session, p. 41, Sec. 1 (now Sec. 214.090) authorized any person who desired to secure a family cemetery on his or her lands to convey to the county court any quantity of land not exceeding one acre, to be held in perpetuity as a cemetery for the use and benefit of the family and descendants of the grantor. By Secs. 2, 3 and 4 of that act (now Secs. 214.100, 214.110 and 214.120) the county court was given superintending control over the land so conveyed and provisions for the prosecution and punishment of trespassers were made.

Laws of 1875, p. 94, Sec. 1 (now Sec. 214.130) expanded this act so as to authorize county courts, where such family cemetery had been conveyed to the county court, to take and hold in trust grants and bequests of money or certain bonds and to apply the same or the income therefrom to the improvement of such family cemetery, and also authorized and empowered every incorporated cemetery company 'to take and hold any like grant or bequest in trust, and to apply the same, or the income thereof, under the direction of the board of trustees or directors of such cemetery company, for the improvement of such cemetery, * * *.' The act also provided for the enforcement of any such trust in equity.

Laws of 1919, p. 181 (now Sec. 214.140) went further and made it lawful to place in trust any property, real or personal, or the income therefrom, for the use and benefit of any public or private cemetery and authorized and empowered any person, association or corporation duly authorized and capable of qualifying as trustee to receive and hold such property and expend the same for such uses and purposes.

Eight years later the General Assembly passed the sections now under consideration, namely, Secs. 214.150-214.180, both inclusive, by a bill the title of which follows: 'An Act to authorize the county courts to become trustees of gifts or bequests for the purpose of supporting and maintaining in whole or in part public or private cemeteries. Defining their powers and authority and duties hereunder.' Laws 1927, p. 141.

The history of this legislation and the title of the act in question, which is a part of and an aid and guide in the correct construction of a statute, Artophone Corporation v. Coale, 345 Mo. 344, 133 S.W.2d 343, evinces the legislative intention in enacting Sec. 214.150 et seq. to invest county courts with authority to administer trust funds for...