Sandusky v. Sandusky

• Decision Date: 14 July 1914
• Citation: 168 S.W. 1150,261 Mo. 351
• Parties: SYDNEY G. SANDUSKY, Executor, v. JAMES M. SANDUSKY, Trustee, et al.; RODHAM ROUTT et al., Appellants
• Court: Missouri Supreme Court

168 S.W. 1150

261 Mo. 351

SYDNEY G. SANDUSKY, Executor, v. JAMES M. SANDUSKY, Trustee, et al.; RODHAM ROUTT et al., Appellants

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

Claude Hardwicke and H. T. Herndon for appellants; W. M. Williams of counsel.

As to bequest by clause 12 of the will; the will imperatively requires that a portion of the funds go to the trustee for each of the following purposes; purchase of parsonages furnishing parsonages, maintenance of parsonages, repair of parsonages, construction of church edifices, furnishing church edifices, maintenance of church edifices, repair of church edifices, and the general advancement of Christianity but the will does not state, nor afford any means of ascertaining, how much or what portion shall go to the trustee for each or any of said purposes; and does not authorize any court, the trustee, or anyone else, to supply the omission by determining how much or what portion shall be for each or any of said purposes. Williams v. Kirshaw, 5 Cl. & T. 111; Heath v. Chapman, 2 Drew, 417; Chapman v. Brown, 6 Vis. 404; Cramp v. Playfoot 4 K. & J. 479; Whitlock v. Am. Tract Soc., 109 Mich. 141; Tilden v. Green, 130 N.Y. 29; Lockridge v. Mace, 109 Mo. 162; Kelly v. Nichols, 21 A. (R. I.) 906; Andrew v. N.Y. Bib. Soc., 4 Sandf. S.Ct. 156; Att'y Gus v. Davies, 9 Ves. 535; Att'y Gus v. Hiuxman, 2 J. & W. 270; Lindberg v. Gwar, 6 Madd. 151; Peck v. Peck, 17 W. R. 1059; 5 Am. & Eng. Ency. Law (2 Ed.), 915. It is evident that the deceased contemplated that a portion of each fourth of the trust fund be used for the general advancement of Christianity. Such portion is not to be for the benefit of any of said religious associations and its use must not be limited to any locality or to any individuals or beneficiaries, but must be general -- for the entire universe. A trust for the general advancement of Christianity could not be enforced in Missouri, especially when no one is given authority to select and limit the beneficiaries thereof, and as, by the terms of the will, an indefinite portion of the trust the testatrix attempted to create, was for that purpose, the entire bequest must fail. It is not a question whether the trustee would execute the trust properly, but can he be compelled to execute it properly, and could the court execute it if he should not. Mortu v. Bishop of Durham, 9 Ves. 99; Read v. Williams, 125 N.Y. 560. In England, a bequest for the advancement of Christianity would go to the Established Church. Atty. Gen. v. Pearsons, 3 Mer. 409. But it is not certain that a trust for the general advancement of Christianity would not be held to be void in England, as was a trust for missionary purposes, in Scott v. Browning, 9 L. R. J. 246. In the following cases, trusts have been held to be void for the reason that they could not be enforced and executed by the court, in the absence of express statutory authority therefor: Hadley v. Torsei, 203 Mo. 418; Board of Trustees v. May, 201 Mo. 360; Schmucher v. Rul, 61 Mo. 592; Bridges v. Pleasants, 4 Ind. Eq. 26; White v. Fisher, 22 Com. 31; Grimes Exc. v. Harmon, 35 Ind. 198; In re Fuller's Will, 44 N.W. 304; McHughes v. McCole, 72 N.W. 631; Gamble v. Triffe, 23 A. 461; Moran v. Moran, 73 N.W. 617; Pack v. Shauhlin, 27 S. E. (W. Va.) 389; Dashicll v. Atty. Gen., 5 Har. & J. 392, 6 Mich. 1; John v. Smith, 91 F. 827, 65 Md. 527; Delaney v. Middleton, 72 Md. 67; Atty. Gen. v. Sonli, 28 Mich. 153; Willets v. Willets, 20 Abb. (N. C.) 471; Tilden v. Green, 130 N.Y. 29; Holland v. Peck, 37 N.C. 255; Greene v. Allen, 24 Turin, 170; Jones v. Greene, 36 S.W. 729; Bristol v. Bristol, 53 Conn. 242; Read v. Williams, 125 N.Y. 560; Greene v. Allen, 24 Tenn. 170; Pritchard v. Thompson, 95 N.Y. 76; Beckman v. Bonson, 23 N.Y. 306. Trusts not for public use are not excepted from the statute of perpetuities, and when the use is limited, as in this case, to bodies whose membership is ascertainable, it is not a public use. Re Clark's Trusts, 1 Ch. D. 497; Carner v. Long, 2 De G. F. & G. 399; Brown v. Dale, 9 Ch. D. 78; Re Dutton, 4 Ex. D. 54; Re Sheridan's Trusts, W. N. 1884, 174; Thompson v. Shakespeare, 1 De G. F. & J. 399; Brown v. Dale, 9 Ch. D. 78. In Missouri all churches are private property -- church and State being independent of each other -- but if such were not the case, the use in this case is so limited that it could not be deemed a public use, so the bequest must fail as to the indefinite portion intended for maintenance of parsonages and churches; and, as that portion is not ascertainable, must fail in toto. In the case of Moran v. Moran, 73 N.W. 617, the opinion of the court is expressed somewhat as in White v. Fiske. See also Heiss v. Murphy, 40 Wis. 276; Wilderman v. Bathy, 8 Mich. 551; Carpenter v. Miller, 3 W.Va. 174; Bridges v. Pleasants, 4 Ind. Eq. 26.

Ralph Hughes, M. E. Lawson, Simrall & Simrall and Sandusky & Sandusky for respondents.

(1) The statute, 43 Eliz., ch. 4, or its principles which antedated the act, and the cy pres doctrine obtain in Missouri. Buchanan v. Kennard, 234 Mo. 134; Chambers v. St. Louis, 29 Mo. 586; Mo. Hist. Soc. v. Academy of Science, 94 Mo. 467; Lackland v. Walker, 151 Mo. 242; Crow ex rel. v. Clay Co., 196 Mo. 234; Academy of Visit. v. Clemens, 50 Mo. 167; Barkley v. Donnelly, 112 Mo. 561; Howe v. Wilson, 91 Mo. 49; Strother v. Barrow, 246 Mo. 249; Stewart v. Coshow, 238 Mo. 675. (4) A bequest to a trustee to support preaching of the gospel, or to erect or repair a parsonage or church edifice, is a gift for the advancement of Christianity. A bequest to a trustee for the advancement of Christianity is a gift for a charitable use and valid; the trustee may make it definite by application. The following cases bear directly upon the validity of clause 12 of will of testatrix, and in many ways pertinently illustrate the law governing this case. Howe v. Wilson, 91 Mo. 49; Bishop's Res. Co. v. Hudson, 91 Mo. 676; Powell v. Hatch, 100 Mo. 592; Barkley v. Donnelly, 112 Mo. 571; Chambers v. St. Louis, 29 Mo. 543; Schmidt v. Hess, 60 Mo. 591; St. George's Ch. Soc. v. Branch, 120 Mo. 239; Strother v. Barrow, 246 Mo. 249; Mott v. Morris, 249 Mo. 147; Stewart v. Coshow, 238 Mo. 673; Far. & Mer. Bk. v. Longfellow, 96 Mo.App. 392; Miller v. Teachout, 24 Ohio St. 525; Saltonstall v. Sanders, 11 Allen, 446; Jackson v. Phillips, 14 Allen, 552; Going v. Emery, 16 Pick. 119; Hinkley v. Thatcher, 139 Mass. 477; Bartlett v. King, 12 Mass. 536; Weber v. Bryant, 161 Mass. 400; McAlister v. Burgess, 161 Mass. 269; Morville v. Fowle, 144 Mass. 109; Minot v. Baker, 147 Mass. 348; Andrews v. Andrews, 110 Ill. 223; Alden v. St. Peter's Parish, 158 Ill. 631; Trafton v. Black, 187 Ill. 36; Frazier v. St. Luke's Hospital, 147 Pa. St. ; Murphy's Estate, 184 Pa. St. 310; Stevens' Estate, 200 Pa. St. 322; Tyler's Estate, 208 Pa. St. 65; Atty. Genl. v. Wallace's Devisee, 7 B. Mon. 611; Kinney v. Kinney's Ex., 86 Ky. 610; Crawford's Heirs v. Thomas, 54 S.W. 197; Beckwith v. St. Phillips, 69 Ga. 564; Fox v. Gibbs, 86 Me. 87; Simpson v. Welcome, 72 Me. 496; Everett v. Carr, 59 Me. 325; People ex rel. v. Cogswell, 113 Cal. 129; Am. Tract. Soc. v. Atwater, 30 Ohio St. 77; (27 A. R. 422); Mannix v. Purcell, 46 Ohio St. 102; Land Com. v. Wadhams, 11 L. R. A. (Ore.) 210; Howard v. Am. Peace Soc., 49 Me. 302; Dickson v. Montgomery, 1 Swan, 348; Carter v. Balfour's Admr., 19 Ala. 814; Bruere v. Cook, 63 N.J.Eq. 624; Trustees v. Wilkinson, 36 N.J.Eq. 141; St. James Orp. Asy. v. Shelby, 60 Neb. 796; Fay v. Howe, 136 Cal. 599; Bell v. Mercer, 14 R. I. 412; Fuller v. Griffin, 3 Vt. 401; Jones v. Habersham, 107 U.S. 174; Russell v. Allen, 107 U.S. 163; French v. Calkins, 252 Ill. 243; De Camp v. Dobbins, 31 N.J.Eq. 671; Townsend v. Carns, 3 Hare Ch. R. 257; Williams v. First Pres. Soc., 1 Ohio St. 478; In re Stewart, 26 Wash. 32; Kinike's Est., 155 Pa. St. 101. (5) As to a court of equity enforcing the rights of the beneficiaries of the trust. St. James Orp. Asy. v. Shelby, 60 Neb. 796; Moore's Heirs v. Moore's Devisees, 4 Dana, 354; Simpson v. Welcome, 72 Me. 496; Dickson v. Montgomery, 1 Swan, 348; Mannix v. Purcell, 46 Ohio St. 102; Schmidt v. Hess, 60 Mo. 595; Howe v. Wilson, 91 Mo. 45; Beckwith v. St. Phillips, 69 Ga. 564; Sappington v. Trustees, 123 Mo. 41; Miller v. Teachout, 24 Ohio St. 525; Williams v. First Presb. Soc., 1 Ohio St. 478.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

This is a proceeding brought by an executor to construe the will under which he is acting as such executor.

Mary E. Dorsey died September 27, 1908. Her will was duly admitted to probate. The third item of the will is as follows:

"3. I give to my executor, hereinafter named, the sum of one thousand dollars, in trust, however, for the following purposes, to-wit: To be by him loaned out on unincumbered real estate at not more than five per cent per annum, and the interest, less the necessary costs and charges, to be used by him in keeping in repair the monument erected to the memory of my late husband, John S. Dorsey, deceased, and his two wives, and, also in keeping the lot in said 'Fairview Cemetery,' on which said monument stands, in good condition. If at any time there should be an accumulation of interest not needed for the purposes aforesaid amounting to as much as five hundred dollars, then eighty per cent of such interest shall be paid by such trustees to the legatees or beneficiaries named in the residuary clause of this, my will, and as in said clause provided."

The twelfth item of the will being as follows:

"12. I give, devise and bequeath, absolutely, all the rest residue and remainder of my estate, real, personal and mixed and wheresoever situate, to James M. Sandusky,...