Women's Christian Association v. Kansas City

• Decision Date: 13 December 1898
• Parties: Women's Christian Association v. Kansas City et al.; Campbell et al., Appellants
• Court: Missouri Supreme Court

48 S.W. 960

147 Mo. 103

Women's Christian Association v. Kansas City et al.; Campbell et al., Appellants

Supreme Court of Missouri

December 13, 1898

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed (with directions).

Scarritt Vaughan, Griffith & Jones for appellants.

(1) The English cy pres doctrine has no place in the jurisprudence of this State. The control of American courts of equity over charitable trusts is identical in the theory of its application with their power over other trusts. When a general charitable intent of a donor is apparent, but is not defined, particular and circumscribed, the chancellor may go to a great length to prevent the failure of and to carry out such intent, and the theory of the exercise of this power is what we know as the American cy pres doctrine. Howe v Wilson, 91 Mo. 49; Vidal v. Girard's Ex'rs, 2 How. 127; Beekman v. Bonsor, 23 N.Y. 308; Fountain v. Ravenal, 17 How. 369; Green v. Allen, 5 Humphrey, 198; Grimes' Ex'rs v. Harmon, 35 Ind. 198; Baptist Ass'n v. Hart, 4 Wheat. 47. (2) No sufficient facts are stated in plaintiff's petition to move a court of equity to grant the decree made by the court below: First. Plaintiff is a stranger to the will and has no interest in the subject-matter of it. Appeal of Gumbert, 1 A. 437; Bailey v. Briggs, 56 N.Y. 407; Green v. Blackwell, 35 A. 375; First Baptist Church v. Robberson, 71 Mo 333; Little v. Thorne, 93 N.C. 69; Woodruff v. Cook, 47 Barb. 304; White v. Haynes, 33 Ind. 540; 27 Am. and Eng. Ency. of Law [1 Ed.], 278. Second. The Attorney-General is without authority to act in the premises when there are other and proper parties capable of suing. Vidal v. Girard's Ex'rs, 2 How. 127; 2 Perry on Trusts [3 Ed.], sec. 732; Beekman v. Bonsor, 23 N.Y. 308. Third. If the Attorney-General is a proper party plaintiff, he does not in fact prosecute this cause. R. S. 1889, sec. 1994. (3) If the intention of the donor of a charity can be carried out it must be done, and the cy pres doctrine, English or American, can not be invoked. The court will not found a charity nor devise a new scheme. Bascom v. Albertson, 34 N.Y. 594; Tilden v. Green, 130 N.Y. 29; Barkley v. Donnelly, 112 Mo. 561. (4) The intention of the testatrix can be carried out. This court has so declared. Barkley v. Donnelly, 112 Mo. 561; Charter of Kansas City, art. 1, sec. 1. (5) The bequest under consideration is a particular one, ordered by the testatrix to be carried out in a definite and prescribed manner, for a certain designated purpose "and none other." Even the American cy pres doctrine should not be invoked in this cause. Campbell v. Kansas City, 102 Mo. 346; Teel v. Bishop of Derry, 47 N.E. 422; Bispham's Prin. of Eq. [4 Ed.], sec. 129; Hopkins v. Grimshaw, 165 U.S. 353; Bascom v. Albertson, 34 N.Y. 594; 2 Perry on Trusts [4 Ed.], sec. 726; 1 Jarman on Wills [5 Am. Ed.], p. 454. (6) The heirs of Mary A. Troost are necessary parties defendant. Second Univ. Soc. v. Dugan, 5 A. 415; Academy v. Clemens, 50 Mo. 170; Barkley v. Donnelly, 112 Mo. 561. (7) A court of equity will not summarily remove a competent trustee, and appoint a new one, unless his death, inability or refusal to act, or an abuse of trust be alleged and proven. 1 Perry on Trusts [3 Ed.], secs. 275, 277; State ex rel. v. Adams, 44 Mo. 570; Harvard College v. Theolog. Soc., 3 Gray, 280. (8) Kansas City is a competent trustee, and no cause is alleged or shown for its removal. Charter of Kansas City, art. 1, sec. 1; Barkley v. Donnelly, 112 Mo. 561; Chambers v. St. Louis, 29 Mo. 543; Vidal v. Girard's Ex'rs, 2 How. 127.

Justin D. Bowersock and Dobson & McCune for respondent.

(1) The heirs of testatrix are not necessary parties defendant. Barkley v. Donnelly, 112 Mo. 561; Goode v. McPherson, 51 Mo. 126; Academy v. Clemens, 50 Mo. 167. (2) The Attorney-General need not be made a party plaintiff, but is properly joined as defendant. Harvard College v. Society for Promotion, etc., 3 Gray, 280. (3) The Attorney-General has authority to act. Perry on Trusts [1 Ed.], sec. 732; 2 Pomeroy on Eq. Jur. [2 Ed.], sec. 1096; Parker v. May, 5 Cush. 336; Theological Society v. Attorney-General, 135 Mass. 285; Attorney-General v. Garrison, 101 Mass. 223; Jackson v. Phillips, 14 Allen, 579. (4) The intention of the donor can not be exactly carried out in its details. First, Fry place is unsuitable; second, there is no fund for constructing the asylum; third, the total estate now in existence is insufficient to buy a new site and build the asylum. (5) A court of equity has power to carry out the main object of a charitable trust, though some deviation from the exact plan proposed be necessary. This is sometimes called the cy pres power, but in this country is simply the general jurisdiction of courts of chancery, however named. Moggridge v. Thackwell, 7 Vesey, 36; 2 Pomeroy on Eq. Jur. [2 Ed.], sec. 1027; Jackson v. Phillips, 14 Allen, 539; Brown v. Baptist Church, 9 R. I. 177; Barr v. Weld, 24 Pa. St. 84; Hill v. McGarvey, 19 S.W. 586; Franklin v. Armfield, 2 Sneed. 305; Stanley v. Colt, 5 Wall. 119. This is settled in this state. Chambers v. St. Louis, 29 Mo. 543; Academy v. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126; Howe v. Wilson, 91 Mo. 45; Historical Society v. Academy of Science, 94 Mo. 459; Barkley v. Donnelly, 112 Mo. 561; Sappington v. School Fund Trustees, 123 Mo. 32; Russell v. Allen, 107 U.S. 163.

ROBINSON, J. Gantt, C. J., Brace, and Williams, JJ., concur; Burgess and Marshall, JJ., dissent; Sherwood, J., not sitting.

OPINION

In Banc.

ROBINSON J. --

The Women's Christian Association of Kansas City, a corporation 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 above-named 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...