State v. Rusk

• Decision Date: 03 July 1911
• Citation: 139 S.W. 199,236 Mo. 201
• Parties: STATE ex rel. HEDDENS et al. v. RUSK, Circuit Judge.
• Court: Missouri Supreme Court

139 S.W. 199

236 Mo. 201

STATE ex rel. HEDDENS et al. v. RUSK, Circuit Judge.

Supreme Court of Missouri.

July 3, 1911.

1. CHARITIES (§ 43) — JUDICIAL SUPERVISION.

Where a will creates a public charitable trust, and vests the title to the property and power of management and control in trustees, a court of chancery may, at the instance of the Attorney General, on behalf of the people, or at the instance of some other proper party, protect the trust, and remove or suspend unfaithful trustees, but orders made, on its own motion, for the appointment of auditors with powers of visitation are in excess of jurisdiction.

2. CHARITIES (§ 43) — JUDICIAL SUPERVISION.

In a suit to construe the powers conferred on trustees by a will creating a public charitable trust, and to empower the trustees to borrow money with which to successfully maintain the trust, a provision in the decree that, during the existence of the indebtedness authorized, the trustees shall report to the court annually the financial condition of the trust, the amount of indebtedness paid, and the prospect of the institution maintained by the trustees, is outside of the issues, and does not justify the court on its own motion to appoint a board of auditors with duties of visitation.

3. EQUITY (§ 66) — GRANTING RELIEF ON EQUITABLE TERMS — "PRICE."

The word "price," in the rule that a court of equity will not extend its aid except on equitable terms imposed as the "price" of the decree, means the thing exacted of one party and given to the other in order to do equity.

4. PROHIBITION (§ 10) — EXCESS OF JURISDICTION.

A court of chancery, which on its own motion makes orders in the management of a public charitable trust, which cannot be enforced, exceeds its jurisdiction, and prohibition lies to restrain it.

5. PROHIBITION (§ 35) — RESTRAINING COURTS OF CHANCERY — COSTS.

The Supreme Court, issuing a writ of prohibition to restrain a judge of the circuit court moving in a judicial capacity, will not tax the costs against the judge.

In Banc. Prohibition by the State, on the relation of J. W. Heddens and others, against W. D. Rusk, Judge of the Circuit Court of Buchanan County. Writ issued.

Ben J. Woodson, for relators. C. A. Mosman, for respondent.

LAMM, J.

Prohibition. To a preliminary rule to show cause entered here on December 27, 1910, Judge Mosman made return, showing, among other things, that his term of office as judge expired after the writ issued and before its return day. Thereupon his successor, Judge Rusk, entered his appearance as substituted respondent and adopted his return. Thereupon the cause was submitted on a motion for judgment on the pleadings. In brief the case is this:

In June, 1886, Samuel Ensworth executed his last will and testament, he then owning a considerable estate, and making certain bequests and devises. Clause five thereof reads: "Fifth. To my friends, William I. Heddens, James W. Heddens, B. R. Vineyard and Stephen C. Woodson, I give, devise and bequeath all the rest of my property, real, personal or mixed, which I may own or have any interest in at the time of my death, in trust to be converted by them into money as soon as they can conveniently do so, and out of the proceeds arising therefrom and all other money which may come into their hands belonging to my estate not required for the purposes hereinbefore provided for, to be used by my said friends, William I. Heddens, James W. Heddens, B. R. Vineyard and Stephen C. Woodson, and one other person to be selected by them in purchasing grounds for and erecting and thereafter maintaining thereon a medical college and hospital to be located in the city of St. Joseph, Buchanan County, Missouri, to be called the `Ensworth Medical College and Hospital,' and my will and direction is that all possible aid shall be given in the assistance of deserving young men to attain a scientific knowledge of the medical profession and the relief of all suffering who may become inmates of said hospital." The devisees named in that clause are also made executors without bond in a subsequent clause, and, as executors, were donees of a power of sale. His will was proved in the probate court of Andrew in August of that year, and subsequently was solemnly probated in a suit, in which the issue was devisavit vel non, in the circuit court.

In 1905 an ex parte petition was filed by proper parties in the Buchanan circuit court for a pro forma decree to incorporate "the Ensworth-Central Medical College and Hospital" for 100 years to effectuate the purposes set forth in the fifth clause of Mr. Ensworth's will. Thereby the plan was to have its affairs and property taken over and managed by seven named trustees or directors and their successors, and when organized and chartered the trustees were to take over the funds provided by and arising from said clause 5, and to use the same in purchasing grounds, erecting and thereafter furnishing, equipping, and maintaining a medical college and hospital at St. Joseph, to provide for the education of students in the science and practice of medicine and surgery, and sciences pertaining to all branches and departments of medicine, conferring degrees upon them on graduation, to provide for the maintenance and support of said hospital, and for making suitable regulations and bylaws for both, through said directors and trustees. All moneys arising from the college and hospital after paying expenses (including a reasonable compensation to the trustees "for their kind of service," and repairs and improvements and for the welfare of the college and hospital) were to be devoted to the growth and usefulness of said college and hospital. On that petition in due time a pro forma decree was entered in accord with the prayer of the petition, and thereafter a charter was issued by the Secretary of State as by statute provided.

In May, 1908, in the said circuit court such application was made and steps were taken on the ex parte application of certain officers and trustees of the corporation as resulted in changing the name of "the Ensworth-Central College and Hospital" by pretermitting the word "Central," and as made its corporate name and style "the Ensworth College and Hospital." This to comply with the request of Mr. Ensworth in said clause 5 of his will, wherein he selected that name for the college and hospital. Prior to that, in February, 1908, in the said circuit court the trustees and directors named in the articles of association and the pro forma decree of incorporation brought suit against Stephen C. Woodson and Maggie P. Woodson, his wife, R. A. Heddens, W. I. Heddens, Mattie Smith, Ollie F. Clark, Mae Heddens, Vernon Heddens, and Herbert S. Hadley, Attorney General for the state of Missouri. We infer this was a friendly suit, since the adult defendants waived service of process by summons and entered their appearance. A minor defendant, Vernon Heddens, presumably served, defended by a guardian ad litem. As the suggestion for prohibition in the instant case deals with the action of the court in retaining jurisdiction of the administration of the trust after a decree on the merits in that case, let us attend to that case with some particularity.

The petition therein alleged that Samuel Ensworth by the fifth clause of his will (heretofore set forth) devised and bequeathed to William I. and James W. Heddens, B. R. Vineyard, and Stephen C. Woodson certain property in trust, to be held by said parties and their successors for the purpose set forth in said clause; that the heirs of said Ensworth brought suit against said trustees, who are also executors, to contest the will, suing them as executors and trustees and as individuals, the ground of contest being mental incapacity; that the will was established by suit, and a judgment by the consent of all parties was entered to the effect that all property remaining unsold one year from that date should be sold at public auction and divided between the heirs of Ensworth and said trustees, who are to use the same in the way and for the purposes therein set forth — all of which was done; that said trustees purchased real estate in St. Joseph, and they and their successors about the year 1889 erected a medical college and hospital thereon, and since then have maintained and conducted the same in accordance with the will; that they took the conveyance to themselves individually, and thereafter undertook to correct that inadvertence by deed made by them and their wives to said trustees eo nomine; that on a certain date William I. Heddens, one of the trustees, died, leaving surviving him as heirs the defendants Smith, Clark, and R. A., W. I., Mae, and Vernon Heddens; that on a certain date Stephen C. Woodson resigned as trustee and since then has failed and refused to act; that of the original trustees only James W. Heddens is now acting; and that the other plaintiffs (except Mary B. Heddens) viz., James W. Heddens, Jacob Geiger, C. R. Woodson, T. E. Potter, Thomas H. Doyle, W. T. Elam and O. B. Campbell, have been selected from time to time as vacancies occurred on the board, and are now acting as trustees. The petition sets forth and shows that the buildings and equipment erected and maintained as aforesaid have become wholly inadequate and insufficient for a medical college and hospital under the requirements of the statutes pertaining to medical colleges, as the same have been changed since Samuel Ensworth's death; that at the time of his death the length of time, before graduating, a student of a medical college should attend college was not a requirement of the statute, while the law now requires an attendance of four school years; that other statutory requirements relating to equipment, apparatus, appliances, laboratories, course of study, and character of buildings and improvements have grown much more rigid; that, to meet such requirements, increasing expenditures have become necessary; that the...