Standley v. Allen

• Citation: 163 S.W.2d 1012,349 Mo. 1115
• Decision Date: 28 July 1942
• Docket Number: 38019
• Parties: Chester Standley, Plaintiff-Respondent, v. Charles D. Allen, Max Hall, Executor of the Estate of Hettie Allen Cates, Clyde Cates, Jacob Seneker, the First National Bank of Sarcoxie, a Banking Corporation, and Nelson Brown, Defendants, Charles D. Allen, Appellant
• Court: United States State Supreme Court of Missouri

163 S.W.2d 1012

349 Mo. 1115

Chester Standley, Plaintiff-Respondent, v. Charles D. Allen, Max Hall, Executor of the Estate of Hettie Allen Cates, Clyde Cates, Jacob Seneker, the First National Bank of Sarcoxie, a Banking Corporation, and Nelson Brown, Defendants, Charles D. Allen, Appellant

No. 38019

Supreme Court of Missouri

July 28, 1942

Appeal from Jasper Circuit Court; Hon. John H. Flanigan Jr., Special Judge.

Affirmed.

R A. Mooneyham for appellants.

(1) The judgment of the trial court is against the law. A charitable gift cannot be sustained where no beneficiary is indicated and no person appointed to select a beneficiary. 6 Cyc., 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145. (2) Donor must designate the particular charitable use. Robinson v. Crutcher, 277 Mo. 1. (3) In the absence of a named donee in the words attempting to create a charitable trust, no trust is created and there is no room for an application of the doctrine of cy pres or approximation, to ascertain or supply one for that cannot be approximated which does not exist. Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Catron v. Scarritt, Coll. Ins., 264 Mo. l. c. 728. (4) If a man wills his property to an object or thing which has no capacity to take, or in a manner made invalid and void by positive rules of law his property will descend to his relatives. Matt v. Morris, 249 Mo. l. c. 150; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32. (5) The judgment of the trial court is against the evidence and the weight of the evidence. (6) The will of Mary J. Allen is void because of the uncertainty of the beneficiaries. Robinson v. Crutcher, 277 Mo. 1, cited in 232 Mo.App. 466; Union Trust Co. v. Little, 10 S.W.2d 47; Wills, 105, 497, 506 (4) 331; Hull v. Calvert, 286 Mo. 163, 10 S.W.2d 47, 341 Mo. 1207. Even where the language is sufficient to establish an intention to create a testamentary trust, if there is uncertainty as to the beneficiaries or the objects to be benefited the trust must fail." Wells v. Fuchs, 226 Mo. 97; 40 Cyc., pp. 1731, 1732; Webb v. Hayden, 166 Mo. 39; Morrow v. Morrow, 113 Mo.App. 444; Noe v. Kern, 93 Mo. 367; Levy v. Levy, 33 N.Y. 97, 14 L. R. A. 33, 29 N.E. 1033. (7) Even where the language is sufficient to establish a testamentary trust, if there is uncertainty as to the beneficiaries or the objects to be benefited, the trust must fail. Wells v. Fuchs, 226 Mo. 97; Mort v. Trustees, etc., 78 S.W.2d 498. (8) The court erred in its finding and judgment that the will of Mary J. Allen vested in the plaintiff, Chester Standley, the power of appointment and the power of selecting the ultimate beneficiaries of Mary J. Allen's property. 6 Cyc. 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v. Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32; Union Trust Co. v. Little, 10 S.W.2d 47; Hull v. Calvert, 286 Mo. 163. (9) The court erred in its judgment and decision in ignoring the proviso contained in the will of Mary J. Allen beginning with the word "provided" and ending with the word "institution" at the end of said fourth paragraph which proviso reads as follows: "Provided if, at said time there shall be in southwest Missouri, a home for aged people I charge my trustee with the duty of transferring the said trust estate to said Institution." 6 Cyc. 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v. Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32; Union Trust Co. v. Little, 10 S.W.2d 47; Hull v. Calvert, 286 Mo. 163. (10) The court erred in its judgment and decision in holding and deciding that the ultimate beneficiaries were sufficiently described and identified and that the will of Mary J. Allen was not so vague, indefinite and uncertain as to the beneficiaries as to be void for uncertainty: 6 Cyc. 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v. Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32; Union Trust Co. v. Little, 10 S.W.2d 47; Hull v. Calvert, 286 Mo. 163. (11) The court erred in its finding and judgment that by the fourth clause of the will of Mary J. Allen that it was her intention that in the event of a failure of Hettie Allen Cates to dispose of her property during her lifetime or in the event of a failure of Hettie Allen Cates to nominate a recipient of said property by will that the plaintiff, Chester Standley, as trustee, would be entitled to all said property remaining undisposed of at the death of Hettie Allen Cates for the purpose of disposing of said property to some worthy charitable organization in Missouri to be selected by said Standley. 6 Cyc., 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v. Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32; Union Trust Co. v. Little, 10 S.W.2d 47; Hull v. Calvert, 286 Mo. 163. (12) The court erred in its finding and judgment that the third paragraph of the codicil of the will of Hettie Allen Cates is valid and confers on the defendant, Jacob Seneker, the power of appointment to dispose of the property of Hettie Allen Cates not otherwise disposed of by her will. 6 Cyc., 945; Burrier v. Jones, 338 Mo. l. c. 687; Catron v. Scarritt, 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Robinson v. Crutcher, 277 Mo. 1; Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Sappington v. School Fund Trustees, 123 Mo. 32; Union Trust Co. v. Little, 10 S.W.2d 47; Hull v. Calvert, 286 Mo. 163.

W. H. Burden and Emerson Foulke for respondent.

(1) An action to quiet or determine title to land, involves title to real estate and appellate jurisdiction is in the Supreme Court. Overfield v. Overfield, 30 S.W.2d 1073; Taut v. Gee, 146 S.W.2d 61; Roth v. Roth, 104 S.W.2d 314. (2) The fourth clause of the Mary J. Allen will was valid. Our courts have long approved charitable bequests to a named trustee with power of selection of beneficiaries within a definite class, and the clause in question is not so indefinite or uncertain as to be void. In fact, it is definite and certain and the wish of the testatrix is easily ascertainable. Burrier v. Jones, 92 S.W.2d 885; Thatcher v. Lewis, 76 S.W.2d 677. (3) The fourth clause of the Mary J. Allen will vested in the plaintiff, Chester Standley, as trustee, the remainder in fee, of all the real property of which Mary J. Allen was seized at the time of her death, subject to the same being divested by Hettie Allen Cates, the life tenant, during her life by a proper exercise of the power of disposal or of the right of appointment granted her by the will. Rutherford v. Farrar, 118 S.W.2d 79. (4) The will of Hettie Allen Cates as amended by the codicil was not a proper exercise of the power of appointment granted her in the fourth clause of the will of Mary J. Allen. In order for a will or codicil to constitute a valid exercise of the power of appointment it must refer to either the specific property as to which the power of appointment existed or it must mention an intention to exercise the power of appointment. Since the codicil in question did neither, it will not operate as an exercise of her power of appointment. Weiss v. Trust Co., 142 S.W.2d 1106; Penn. Co. for Ins. on Lives and Granting Annuities v. Monele, 154 A. 416; Woodridge v. Jarrard, 138 A. 536; M. E. Home for the Aged of New Jersey v. Tuthill, 167 A. 9; Rice v. Park, 135 So. 472.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for construction of a will and instructions concerning a trust therein created. Defendant Allen sought to have the trust declared void as too vague and indefinite and to have title adjudged in him, in fee simple to the land (in Jasper County) involved. The court held the challenged provisions valid and entered a decree construing the will against defendant Allen's contentions; and he alone has appealed.

The will of Mary J. Allen, who died in 1931, left certain lands to her brother, defendant Allen (hereinafter referred to as defendant), appointed an executrix (her sister), gave $ 200.00 to a cemetery association, and provided, as follows:

"Fourth -- All the balance and residue of my estate, I will to my sister, Hettie Allen Cates, if she shall survive me, to have and enjoy during her natural life, free from any claims or rights of her husband, Clyde S. Cates. I give to my sister full power to convey, sell and give away as she may see fit, including the right to will all the property herein given to her. She shall have full authority to dispose of the property to such charitable organizations as she shall deem best, and in case she shall die without having disposed of the property, then the same shall become the property of Chester Standley of Sarcoxie, Missouri, in trust, for the purpose of having him dispose of the same to some worthy charitable organization, in Missouri, to be selected by him; Provided, if at said time there shall be in Southwest Missouri, a home for aged people, I charge my trustee with the duty of transferring the said trust estate to said Institution."

Hettie Allen Cates did convey 20 acres of the land to defendant and mortgaged 80 acres to the Sarcoxie...