Wyatt v. Stillman Institute

• Decision Date: 31 December 1923
• Docket Number: No. 23240.,23240.
• Citation: 260 S.W. 73,303 Mo. 94
• Parties: WYATT et al. v. STILLMAN INSTITUTE.
• Court: Missouri Supreme Court

260 S.W. 73

303 Mo. 94

WYATT et al. v. STILLMAN INSTITUTE.

No. 23240.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Motion for Rehearing Denied March 7, 1924.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Sadie Wyatt and others against the Stillman Institute. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions.

Orren Wilson, of Cape Girard, and McKay & Jones, of Kennett, for appellants.

Hugh B. Pankey and T. R. R. Ely, both of Kennett, for respondent.

RAGLAND, J.

This is an action under the statute to determine title to real estate. The land in controversy consists of 408 acres and is situated in Dunklin county. Charles Birthright, who was a resident of that county and who died there December, 1911, is the admit" ted common source of title. He left a widow, but no descendants. The plaintiffs are his collateral heirs. By the following paragraph of his will he made disposition of his entire estate:

"Second. I give and bequeath to my beloved wife, Bettie, all of my property of whatsoever character, real and personal, to hold and to enjoy so long as she shall live. And should she at any time deem it to be to the interest of the estate, she shall notify the executor thereof of her wishes and he shall sell said property so designated at either private, or public sale, upon such terms as may seem to him best, and at her death:—the executor hereinafter named, is instructed and empowered to sell all of said property, both real and personal, at either public, or private sale, on such terms as may be deemed by him best, and the proceeds thereof I direct to be given to the Tuscaloosa Institute at Tuscaloosa, Ala., to be used by it in educating young colored men for the ministry; provided however, that I should survive my wife, then at my death the executor shall sell all of said property, both real and personal, at such time and upon such terms as may be thought best by him and the proceeds thereof paid to the said Tuscaloosa Institute, at Tuscaloosa, Ala., for the said purpose of educating young colored men for the ministry. In the party hereinafter named as executor shall not be living at the time for executing this will or in case for any reason he does not, or can not serve, I desire that the proper officers of said Tuscaloosa Institute be notified and requested to nominate an executor herein."

The will was executed October 5, 1893; it was duly probated in the probate court of Dunklin county, February 17, 1912, and on that date the executor therein named, David B. Pankey, duly qualified and letters testamentary were issued to him. On October 23, 1913, pursuant to notice published in accordance with the statute, he made what purported to be his final settlement as executor. It was approved and confirmed as such by the probate court, and he was thereupon discharged. David B. Pankey died in 1915; the widow, Betty Birthright, died February 1, 1917, without having sold, or directed to be sold, any of testator's lands.

The Tuscaloosa Institute referred to in the will was, at the date thereof, an unincorporated association engaged, under the supervision of the governing bodies and committees of the Presbyterian Church, in educating young colored men for the ministry. The association was incorporated in 1895 under the laws of the state of Alabama, as the Stillman Institute. After its incorporation the institute continued under the supervision of the Presbyterian Church, but entered upon a somewhat broader field of activity. Its purposes, according to its charter, are "to train colored youths in the various branches of academic, collegiate, industrial and theological studies."

In August, 1917, following the death of Betty Birthright, the defendant, Stillman Institute, filed its petition in the circuit court for Dunklin county, praying the appointment of H. B. Pankey as trustee "to execute the terms of the said Charles Birthright's will." The appointment was made as prayed. Thereafter the defendant notified Pankey, as trustee, that it elected to take the land itself instead of the proceeds of the sale thereof.

It seems to be conceded that at the time Pankey was appointed as trustee under the will there were no unpaid allowed claims against the estate.

The petition is conventional. After alleging that the defendant is a corporation organized under and by virtue of the laws of the state of Alabama, it avers that the plaintiffs are the owners in fee simple of the land in controversy and claim that title to if. It further alleges that defendant claims some title, interest, or estate therein adverse to that of plaintiffs, and prays the court by its decree to define and adjudge the title, interest, and estate of the parties respectively, as provided by the statute.

The answer denies that plaintiffs own the land in controversy; it avers that, on the contrary, they have no interest therein whatever. Then by way of affirmative defense it sets up the facts substantially as we have stated them and on them asks a finding and decree:

"That the property herein described was devised and bequeathed to D. B. Pankey, or his successor, to sell and to give the proceeds to said defendant; that H. B. Pankey, the selected trustee, holds said property for use of said Stillman Institute, and is hereby ordered to sell said land and distribute said proceeds to said Stillman Institute, or that said Stillman Institute is the fee simple owner of said land."

The reply does not traverse the facts pleaded in the answer. It consists of a legal argument, with the pleader's conclusions of law, to the effect: (1) That defendant could not take the title to the land, even if it elected to do so, because it is a religious corporation; (2) that the will did not create a personal trust with respect to the land which survived the administration of the estate, because the power of sale given the executor was merely in virtue of his office; and (3) that as the administration has been closed, final settlement made and the executor discharged, the power of sale attached to the executoral office has lapsed.

The trial court found and adjudged that plaintiffs have no right, title, interest, or estate in the land in controversy, and that the. fee-simple title thereto is vested in the trustee, H. B. Pankey, for the purposes of selling same and turning over to the defendant, Stillman Institute, the proceeds thereof. From such judgment plaintiffs prosecute this appeal.

1. The law, without volition on the part of the ancestor, casts the realty of which he may die seized upon the heir. It is only by some act on the part of the ancestor, usually by will, that this course of the law will be interrupted or interfered with. If there is to be any change in the devolution provided by law, it must be made to appear clearly. If it is not so expressed in terms by the ancestor, it should result irresistibly and imperatively from the general intention ascertained from the entire instrument, whether it be deed or will. Compton v. Mc-Mahan, 19 Mo. App. 494, 500.

Under the will in this case there were but two beneficiaries, the widow, Betty Birthright, and the defendant. To the first there was a devise of a life estate in the land of the testator, with the power of disposition; but to the latter there was no devise of land or any interest in land. It was given money; land was merely provided as the source from which the money was to be...