Thatcher v. St. Louis, No. 31171.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation76 S.W.2d 677
PartiesT.H. THATCHER ET AL. v. ELIZABETH H. LEWIS ET AL., Appellants. T.H. THATCHER ET AL., Appellants, v. CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY ET AL.
Docket NumberNo. 31172.,No. 31173.,No. 31171.
Decision Date15 November 1934
76 S.W.2d 677
T.H. THATCHER ET AL.
v.
ELIZABETH H. LEWIS ET AL., Appellants. T.H. THATCHER ET AL., Appellants,
v.
CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY ET AL.
No. 31171.
No. 31172.
No. 31173.
Supreme Court of Missouri.
Division One, November 15, 1934.*

Appeal from Circuit Court of City of St. Louis.Hon. Claude O. Pearcy, Judge.

DECREE MODIFIED AND AFFIRMED.

[76 S.W.2d 678]

Bishop & Claiborne, Curlee & Teasdale, Boyle & Priest, Hugh K. Wagner, Francis M. Curlee, George T. Priest and George G. Vest for appellants.

(1) The opinion in City of St. Louis, Trustee for Mullanphy, v. McAllister, 302 Mo. 152, is the law of this case. Davidson v. Ry. Co., 301 Mo. 85. (2) The will of Bryan Mullanphy created a trust for the benefit of "settlers" alone. The evidence shows that there is no longer any such class of persons. (3) The will of Bryan Mullanphy created a trust estate as a gift to charity to accomplish but a single, definite purpose and to aid but a specific and limited class; it expressed no general charitable intention. Upon the failure of said class and the impossibility of performance of the trust, the property conveyed reverted by operation of law to the heirs of Bryan Mullanphy. St. Louis v. McAllister, 302 Mo. 152; Quimby v. Quimby, 175 Ill. App. 367; Doyle v. Whalen, 87 Me. 414; Brooks v. Belfast, 90 Me. 318; Allen v. Nason, 107 Me. 120; Gilman v. Burnett, 116 Me. 382; Bancroft v. Maine, 119 Me. 506; Bowden v. Brown, 200 Mass. 269; Brown v. Condit, 70 N.J. Eq. 440; Saltsman v. Green, 243 N.Y. Supp. 576; Gladding v. St. Matthew Church, 25 R.I. 628; Women's Christian Temperance Union v. Cooley, 25 S.W. (2d) 171; In re Randall, 38 L.R. Ch. Div. 213; In re University of London Medical Sciences Trust Fund, 2 Ch. 1; Columbian University v. Taylor, 25 App. Cas. (D.C.) 131; Manson v. New York Life Ins. Co., 243 N.Y. Supp. 578; Raque v. City, 97 N.J. Eq. 450; Edwards v. Packard, 129 Me. 80; Teele v. Bishop of Derry, 168 Mass. 342; 38 Am. L. Rep. Ann. 44; 38 L.R.A. p. 44 (4) The will of Bryan Mullanphy expressing no general charitable intention, and it no longer being necessary to use all the funds to take care of the purposes of the trust, the residue in the hands of the city of St. Louis as trustee should be turned over to the heirs of Bryan Mullanphy. St. Louis v. McAllister, 281 Mo. 32. (5) The court erred in assessing the costs against plaintiffs. St. Louis v. McAllister, 302 Mo. 152.

Charles M. Hay, Edgar H. Wayman and Richard S. Bull for City of St. Louis.

(1) By the will of Bryan Mullanphy, leaving one-third of his property in trust to furnish relief to all poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the West, a public charity was created. Chambers v. St. Louis, 29 Mo. 588; 5 R.C.L., pp. 291, 292, 293; Catron v. Scarritt Coll. Inst., 264 Mo. 725. (2) In no event will this gift to charity, which was without limitation or condition, revert to the heirs of the donor. Vidal v. Girard's Exrs., 2 How. 127, 11 L. Ed. 233; Girard v. Philadelphia, 7 Wall. 1, 19 L. Ed. 53; Chambers v. St. Louis, 29 Mo. 543; Academy v. Clemens, 50 Mo. 172; Goode v. McPherson, 51 Mo. 127; Mo. Hist. Society v. Acad. of Science, 94 Mo. 467; Barkley v. Donnelly, 112 Mo. 561; Women's Christian Assn. v. Kansas City, 147 Mo. 103; Lackland v. Walker, 151 Mo. 210; Hand v. St. Louis, 158 Mo. 204; Crow ex rel. v. Clay County, 196 Mo. 234; Hadley v. Forsee, 203 Mo. 427; Strother v. Barrow, 246 Mo. 241; Mott v. Morris, 249 Mo. 137; Glaze v. Allen, 213 S.W. 785; Lewis v. Brubaker, 14 S.W. (2d) 982; Chouteau v. St. Louis, 55 S.W. (2d) 299; Chouteau v. St. Louis, 56 S.W. (2d) 1050; 11 C.J., sec. 100, pp. 371-372; 3 Story, Equity Juris. (14 Ed.), pp. 209-210; Tudor on Charities (4 Ed.) 109; Zollman, Am. Law of Charities, sec. 637; Sanderson v. White, 18 Pick. 333; Home v. Edson, 187 N.W. 546; In re Toner's Estate, 103 Atl. 544; Clark v. Oliver, 22 S.E. 176. (3) The gift having been forever, and the designated class of beneficiaries having largely ceased to exist, equity will exercise its inherent jurisdiction to preserve and administer the charitable trust as near as may be to the donor's intention. Authorities cited under Point 2; Buckley v. Monck, 187 S.W. 33; Lackland v. Walker, 151 Mo. 260; Jackson v. Phillips, 14 Allen, 539; Trustees of Andover v. Phillips Academy, 148 N.E. 918; City of Keene v. Eastman, 72 Atl. 213; 2 Perry on Trusts (7 Ed.), secs, 716, 718; Tysen, Charitable Bequests, p. 440; Zollman, Am. Law of Charities, secs. 133-137. (4) As appellants, heirs of the donor, have no interest in his gift to charity or in the administration of the trust, they cannot contest the application of the cy pres doctrine thereto. Authorities cited under Point 2; Rowley v. Rowley, 197 S.W. 156. (a) The Attorney-General, as representative of the beneficiaries of the charitable trust, is the only real party in interest to the trustee's application for cy pres administration. Lackland v. Walker, 151 Mo. 242. (5) The decree of the chancellor below taxing costs against the plaintiffs was correct and proper. They were unsuccessful parties, who had begun and invited the litigation. Sec. 1242, R.S. 1929; St. Louis v. McAllister, 302 Mo. 152; Sandusky, Exr., v. Sandusky, 265 Mo. 219; 15 C.J., sec. 104; 65 C.J., sec. 777, p. 877; Trautz v. Lemp, 334 Mo. 1085.

Roy McKittrick, Attorney-General, Vance J. Higgs and Robert J. Keefe for Attorney-General.

(1) Assuming a substantial failure of the class specified in the will (poor immigrants and travelers coming to St. Louis on their way bona fide to settle in the West), the question whether the trust must be allowed to fail entirely or may be carried out cy pres is to be viewed in the light of the following factors: (a) The trust is not merely one for charity; it is one for "public charity" — one which serves a public convenience, relieves the city of St. Louis of a burden which would otherwise fall on its taxpayers and thereby "lessens the burdens of government." 5 R.C.L., sec. 3, p. 293; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 574; Mo. Historical Society v. Academy of Science, 94 Mo. 466, 8 S.W. 346; Crow v. Clay County, 196 Mo. 234, 95 S.W. 375; Chambers v. St. Louis, 29 Mo. 581. (b) A gift for such a charity will be construed in the most liberal manner possible to make it effectual, and a court of equity will go to the limit of its powers rather than that it should fail. 5 R.C.L., sec. 89, p. 352; 2 Perry on Trusts (7 Ed.), sec. 709, p. 1200; Mott v. Morris, 249 Mo. 137, 155 S.W. 434; Strother v. Barrow, 246 Mo. 241, 151 S.W. 963. (c) A gift for public charity is presumed to be forever, in the absence of a clearly expressed contrary intention; and where such a gift has once vested, a construction of it under which it would lapse will not be adopted unless no other construction is possible. Mott v. Morris, 249 Mo. 137, 155 S.W. 437; Woman's Christian Assn. v. Campbell, 147 Mo. 103, 47 S.W. 967; Goode v. McPherson, 51 Mo. 127; Academy v. Clemens, 50 Mo. 172; Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; Hand v. St. Louis, 158 Mo. 204, 59 S.W. 92; Crow v. Clay County, 196 Mo. 234, 95 S.W. 375; Glaze v. Allen, 213 S.W. 784; Lewis v. Brubaker, 14 S.W. (2d) 988. (2) Closely related to these rules is the cy pres doctrine, which presupposes knowledge on the part of a donor (whose gift was "forever") that changing circumstances may render impracticable a literal compliance with the terms of the gift and thereupon dictates an application of it which will give effect to his "general purpose" in a manner as near as may be cy pres to his expressed wish. Bogert on Trusts, pp. 226, 227; 2 Story's Eq. (3 Ed.), sec. 177, p. 524; Latter Day Saints v. United States, 136 U.S. 1, 10 Sup. Ct. 706; Mott v. Morris, 249 Mo. 137, 155 S.W. 437; Goode v. McPherson, 51 Mo. 127. (3) The "general purpose" of the donor which a court of equity will lay hold of (where the specific object has failed) for the purpose of applying the gift cy pres need not be one expressly stated in the will or deed; usually it is not. It may be gleaned from the nature of the gift, from the circumstances under which it was made, and even from the purposes of the body or institution entrusted with the administration of it. And in searching for such a purpose, so as to prevent a failure of the charity, courts of equity will give effect to every favorable intendment deducible from the instrument and all of the facts. 2 Perry on Trusts (7 Ed.), sec. 723, pp. 1231-32; 5 R.C.L., secs. 108, 109, pp. 367-68; Bispham's Principles of Equity (6 Ed.), secs. 126, 127, p. 187; Bogert on Trusts, pp. 225-228; Jackson v. Phillips, 14 Allen, 586; Latter Day Saints v. United States, 136 U.S. 1, 10 Sup. Ct. 806; Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; Buckley v. Monck, 187 S.W. 53; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 573; Goode v. McPherson, 51 Mo. 127. (4) The donor's direction that the fund be used for the relief of "poor emigrants and travelers coming to St. Louis on their way bona fide to settle in the West" expresses his intention as to the "mode" of administering the charity, but not the ultimate or general purpose thereof, which was to alleviate the burden cast upon his home city by strangers stranded there in the course of their journeys. This appears: (a) From the fact that at the time the will was executed immigrants and travelers stranded in St. Louis — some suffering from illness or disease — constituted a "nuisance to the town and its inhabitants" and presented "a public problem of extreme importance." (b) From the fact that the donee of the gift in trust was the city of St. Louis, one of the recognized functions of which is to relieve distress within its borders, particularly where there is menace to the public order or health. 5 R.C.L., sec. 108, p. 368; Hubbard v. Worcester Art Museum, 194 Mass. 280, 80 N.E. 490, 9 L.R.A. (N.S.) 689;...

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21 practice notes
  • In re Gilchrist's Estate, 1950
    • United States
    • United States State Supreme Court of Wyoming
    • June 9, 1936
    ...dealing with interpretation: Lane v. Vick, 3 How. 464; German v. Frey Planing Mill Company, (Ky.) 77 S.W.2d 414; Thatcher v. Lewis, (Mo.) 76 S.W.2d 677; Cronan v. Cronan, (Mass.) 190 N.E. 721; Stephens v. Dennis, 72 S.W.2d 630; Kosa v. Boucek, (Kan.) 42 P.2d 596; Livingston v. Ward, (N. Y.)......
  • Troy Bank & Trust Co. v. Brantley, 4 Div. 767
    • United States
    • Supreme Court of Alabama
    • June 30, 1955
    ...would render a provision of the will void or terminate a trust therein created. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W.2d 677; In re Hughes' Estate, 78 Ohio App. 143, 69 N.E.2d 216; Tramell v. Tramell, 162 Tenn. 1, 32 S.W.2d 1025, 35 S.W.2d 574. This conclusion is probably ......
  • Creek v. Union Nat. Bank in Kansas City, No. 43239
    • United States
    • United States State Supreme Court of Missouri
    • February 8, 1954
    ...be paid out of the estate where it is determined that the complainant has no interest in any event. " Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677, 684; Lang v. Taussig, Mo.App., 194 S.W.2d 743, 748; Scullin v. Mercantile-Commerce Bank & Trust Co., 361 Mo. 337, 234 S.W.2d 597, 604[13, 14]......
  • Langenberg v. City of St. Louis, No. 39842.
    • United States
    • Missouri Supreme Court
    • October 14, 1946
    ...of land from the City of St. Louis, trustee under the will of Bryan Mullanphy, deceased. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W. 2d 677; City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; City of St. Louis v. McAllister, 281 Mo. 26, 218 S.W. 312; City of St. Louis ......
  • Request a trial to view additional results
21 cases
  • In re Gilchrist's Estate, 1950
    • United States
    • United States State Supreme Court of Wyoming
    • June 9, 1936
    ...dealing with interpretation: Lane v. Vick, 3 How. 464; German v. Frey Planing Mill Company, (Ky.) 77 S.W.2d 414; Thatcher v. Lewis, (Mo.) 76 S.W.2d 677; Cronan v. Cronan, (Mass.) 190 N.E. 721; Stephens v. Dennis, 72 S.W.2d 630; Kosa v. Boucek, (Kan.) 42 P.2d 596; Livingston v. Ward, (N. Y.)......
  • Troy Bank & Trust Co. v. Brantley, 4 Div. 767
    • United States
    • Supreme Court of Alabama
    • June 30, 1955
    ...would render a provision of the will void or terminate a trust therein created. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W.2d 677; In re Hughes' Estate, 78 Ohio App. 143, 69 N.E.2d 216; Tramell v. Tramell, 162 Tenn. 1, 32 S.W.2d 1025, 35 S.W.2d 574. This conclusion is probably ......
  • Creek v. Union Nat. Bank in Kansas City, No. 43239
    • United States
    • United States State Supreme Court of Missouri
    • February 8, 1954
    ...be paid out of the estate where it is determined that the complainant has no interest in any event. " Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677, 684; Lang v. Taussig, Mo.App., 194 S.W.2d 743, 748; Scullin v. Mercantile-Commerce Bank & Trust Co., 361 Mo. 337, 234 S.W.2d 597, 604[13, 14]......
  • Langenberg v. City of St. Louis, No. 39842.
    • United States
    • Missouri Supreme Court
    • October 14, 1946
    ...of land from the City of St. Louis, trustee under the will of Bryan Mullanphy, deceased. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W. 2d 677; City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; City of St. Louis v. McAllister, 281 Mo. 26, 218 S.W. 312; City of St. Louis ......
  • Request a trial to view additional results

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