Women's Christian Ass'n v. Campbell

• Decision Date: 13 December 1898
• Citation: 147 Mo. 103,48 S.W. 960
• Parties: WOMEN'S CHRISTIAN ASS'N v. CAMPBELL et al.
• Court: Missouri Supreme Court

48 S.W. 960

147 Mo. 103

WOMEN'S CHRISTIAN ASS'N v. CAMPBELL et al.

Supreme Court of Missouri.

December 13, 1898.

CHARITABLE TRUSTS — CY PRES RULE — JURISDICTION — NECESSITY FOR RULE — PARTIES — DEFECT CURED BY ANSWER — ACCEPTANCE OF DECREE — TESTAMENTARY DIRECTION — ALLOWANCE OF COUNSEL FEES.

1. By virtue of its jurisdiction over trusts and charities, equity may invoke the doctrine of cy pres to effectuate a devise of land for an orphan asylum by directing the trustee to sell such land, which is unsuitable in location, and ordering the application of the proceeds to the erection of a building for the intended purpose on a tract of land elsewhere, which was donated for charitable purposes, the institution to be under the control and custody of an eleemosynary corporation having a like object.

2. A decree directing the execution according to the cy pres doctrine of a devise to a charitable trust is not vitiated by the fact that plaintiff was a stranger to the will, and had no interest in the devise, where the attorney general was made party defendant with interested parties, and answered, admitting the bill, and praying the same relief.

3. A petition by a mere stranger to effectuate a charitable trust by the doctrine of cy pres, praying that the petitioner be directed to take custody of the institution provided for, may be deemed an acceptance of a proper decree in response to the attorney general's answer, which directed plaintiff to take custody.

4. A donation and investiture in a trustee of lands for charitable uses extinguishes all interest of the donor and his heirs, and hence they are not necessary parties to a suit to effectuate the trust by a sale of the property.

5. The difficulty of effectuating according to its terms a charitable trust which will call in force the doctrine of cy pres is only a reasonable one, and not such as to make the donor's plan a physical impossibility.

6. A testamentary direction that, should the fund created for the erection of an orphan asylum be inadequate, certain lands devised for the site thereof should be sold, and a new site and building purchased with the proceeds, does not prevent the application of the doctrine of cy pres by directing a sale of the land to provide funds for the erection of the building on lands held by a similar trust for a like purpose, where the growth of population has made the provision itself inadequate.

7. Counsel fees should not be allowed out of a trust fund to a plaintiff who had no equity to move for its execution.

Burgess and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county.

Suit by the Women's Christian Association against John Campbell, the city of Kansas City, and others. From a decree in favor of plaintiff and the attorney general, defendant, the defendant the Gilliss Opera House appeals. Affirmed.

Scarritt, Vaughan, Griffith & Jones, for appellant. Justin D. Bowersock, Dobson & McCune, and Edw. C. Crow, Atty. Gen., for respondents.

ROBINSON, J.

The Women's Christian Association of Kansas City, an incorporation organized under the laws of this state for charitable purposes, to have effectuated and carried out a trust established by the last will of Mary A. Troost, who died in Kansas City in the year 1872, instituted the following proceedings in the circuit court of Jackson county:

"To the Honorable, the Judge of the Circuit Court of Jackson County, Sitting at Independence, Missouri: Your petitioner, the abovenamed plaintiff, the Women's Christian Association of Kansas City, Missouri, respectfully represents and states: That it is a corporation duly organized and incorporated under the laws of the state of Missouri for purely charitable purposes. That it was incorporated under the provisions of chapter 70 of the General Statutes, then in force, by a decree of the circuit court of Jackson county, Missouri, made and entered on the 25th day of May, 1877; and a certificate of incorporation was, on said day, duly issued to your petitioner, and it has ever since been, and is now, exercising its corporate powers for charitable purposes, as authorized by its articles of association and said decree of incorporation. That the object of its incorporation was, and is, as stated in its articles of association: `First, the maintenance of an industrial home for children; and, second, to afford temporary relief to suffering indigent women.' That it is provided with the usual officers required for such corporations, and is also provided with a board of trustees, in accordance with the requirements of its articles of association, which board of trustees now consists of the following named residents of Kansas City, Missouri: M. W. St. Clair, S. B. Armour, Dr. F. B. Nofsinger, L. R. Moore, and M. A. Potts. The legal title to all real estate which may come to said corporation by the terms of the articles of association vests in said trustees to be held in trust for said corporation. The officers of said association for the present year are as follows: Mrs. S. B. Armour, president; Mrs. Kate D. Rhodes and Mrs. Susan A. Morgan, vice presidents; Mrs. M. A. Potts, treasurer; Mrs. John G. Groves, secretary; and Mrs. D. G. Alderson, corresponding secretary. That the defendant Kansas City is a municipal corporation organized under the laws of Missouri. That the defendant Edward C. Crow is the duly elected, qualified, and acting attorney general of the state of Missouri, whose duty it is to protect the public interests in all matters pertaining to devises and donations for charitable purposes when the courts are called upon to act in regard thereto. That the defendant Fred C. Hey is the duly appointed and acting administrator de bonis non of the estate of said Mary A. Troost, deceased, with the will annexed.

"Your petitioner further says: That it has for a long time in the past maintained, and is now maintaining, an industrial home for children who are destitute, or in need of charitable assistance. That it owns fifty feet of ground on Charlotte street, near Twelfth, with a three-story brick building thereon, numbered 1115 Charlotte street, which is now being used for such children's home; and there are now being supported, cared for, and educated by your petitioner, in said home, about thirty-seven poor and destitute children, both male and female. Said ground and building are worth about $10,000. And your petitioner is possessed of sufficient means to support said home, as at present constituted, but has not sufficient means to build a larger or more commodious or more suitable home for such children, as it is desirous of doing, and as the necessities of Kansas City require. The other property of which your petitioner is possessed consists of an endowment fund for the support of its children's home of $31,000 which has been donated to it by charitable and generous citizens of Kansas City for that purpose. That the same is now loaned out on good security, and is yielding a net annual income of $2,170. That the location of said children's home on Charlotte street is not in any respect well adapted to the needs of such a home. And your petitioner, the plaintiff, desires and intends to either convert said building into a home for the aged and helpless, or sell the same, and use the proceeds for such purpose.

"Your petitioner further states and represents: That Mrs. Mary A. Troost, who departed this life in Kansas City, Missouri, on the ____ day of January, 1872, died testate, and her last will and testament was duly admitted to probate in the probate court of Jackson county, Missouri, on the 13th day of January, 1872, a full copy of which said last will is herewith filed and made a part of this petition. That by said last will the said Mary A. Troost attempted to and did establish a charity known as the `Gilliss Orphan Asylum,' and to be located on a tract of land in Kansas City, Missouri, belonging to her, and known as the `Fry Place,' and hereinafter more definitely described; and also for the purpose of maintaining said orphan asylum, when constructed, out of the proceeds of her estate, and for the purpose of commemorating the name of her uncle, William Gilliss, deceased. The said testatrix also provided in said will for the building of an opera house in said Kansas City, Missouri, to be known as the `Gilliss Opera House'; and among the numerous provisions in said will, the clauses or items thereof relating to said orphan asylum and said opera house, and which are necessary to be considered here, are as follows: `Item Eighteenth. I give and devise to the city of Kansas the parcel of land lying on the Shawnee road, bounded on the north by the land of the Jarbeau's heirs, on the south by the Shawnee road, west by Coleman's land, and east by Jordan, containing from five to ten acres of land, and called the "Fry Place"; to hold the same in trust, however, for the following uses and none other: For a home and place for the maintenance and education of poor children, and the same shall be called the "Gilliss Orphan Asylum." Item Nineteenth. I give and devise to John Campbell, William S. Gregory, and Bernard Donnelly, all of the city of Kansas, lots 209, 210, in block 21, in the old town of the city of Kansas, county of Jackson, and state of Missouri, in trust, however, that they and their successors in this trust shall, when the Gilliss Opera House is built, keep the same in repair, well insured, and pay all taxes and other necessary and proper expenses connected with the management of the same, and the net proceeds arising therefrom, by way of rents or otherwise, use in keeping up the Gilliss Orphan Asylum hereinbefore provided for and in carrying out the beneficial object and design of that institution. In case and so often as any one or more of said trustees now appointed, or any one or more of the trustees hereinafter appointed, shall die, or refuse to accept this trust, or refuse to act, or shall wish to retire,...