Opinion
December 20, 1930.
1. GIFT: Public Charity: Reverter: Compliance with Conditions: Discretion. The trustees of a cemetery corporation, to which has been bequeathed the proceeds of land to be sold by other trustees, to be used in the construction of a chapel upon the cemetery grounds, may exercise a reasonable discretion, after a part of such proceeds have come into their control, as to when such chapel shall be built and as to how much, within the maximum amount specified, may be spent in its construction; and the money so received will not revert to testator's heirs on the ground that the trustees, as to the matter of building the chapel, have not complied with the terms, conditions and provisions of the bequest, where the evidence shows that the trustees have, in different ways, manifested their intention to erect the chapel and will do so as soon as enough of the bequest has come into their hands to enable them to determine how much of it, in view of the conditions prescribed and the other terms of the gift, should be expended in its erection.
2. ____: ____: Cemetery: For Burial of White Persons: Eminent Domain: Taxes. A cemetery, incorporated under the provisions of the statute as a benevolent corporation and as such entitled to perpetual duration, although its grounds by its articles of agreement are restricted to the burial of white persons, is a public charity, and a gift to it to be used for such purpose is a charitable trust, and lawful; and being a public charity, entitled to perpetual duration, it is unnecessary, in determining the validity to it of the gift, to determine whether such restriction renders it powerless to condemn land, or whether it is a public cemetery in the sense that it could exercise the power of eminent domain, or be relieved of the payment of general taxes.
3. ____: ____: To Portion of Public. A gift which confers a benefit upon the public at large, or some portion thereof, or upon an indefinite class of persons, is a public charity. If its benefits are confined indiscriminately to specific classes it is a public charity.
4. ____: ____: Charitable Trust. A charitable trust, in a legal sense, is one which originates from the gift, and which limits the property to any public use to which it is lawful to devote property forever. A will by which testator directs that certain lands be sold and the proceeds, not to exceed a specified sum, be devoted to the erection of a chapel on the grounds of a cemetery, incorporated as a benevolent corporation with the right of perpetual duration, and that the remainder of such proceeds and the proceeds of certain other lands, after the termination of his widow's life estate therein, be put to interest, and the interest used in beautifying, ornamenting and maintaining the cemetery, creates a charitable trust. The building of the chapel and the beautification, ornamentation and maintenance of the cemetery, although the grounds are to be used only for the benefit of an indefinite number of the public, namely, for the burial of white persons only, is a charitable trust. The gifts are forever devoted to a public charity, and are not so limited as to constitute them a private charity.
5. GIFT: Public Charity: Perpetuity. The rule against perpetuities does not apply to gifts for charitable uses and trusts.
6. ____: ____: Act of 1919: Retroactive. The Act of 1919 (Sec. 1094, R.S. 1919) does not apply to gifts to a cemetery made before its enactment.
7. ____: Valid Charitable Trust: Right of Cemetery to Receive: Incapacitated Trustee: Recovery. The right or power of an incorporated cemetery, for want of charter powers, to receive and administer as trustee a gift which constitutes a charitable trust, does not create in the donor's collateral heirs any right to recover the gift from the corporation. A trust will not be permitted to fail because the trustees named in the instrument cannot, for any reason, administer the trust; in such case, a court of equity will appoint a trustee to administer it.
Appeal from Bates Circuit Court. — Hon. C.A. Calvird, Judge.
AFFIRMED.
Hiett, Lamar Covert for appellants.
(1) The court erred in holding the Newton Burial Park to be a public charity. To be a public charity the park must be a public cemetery. (a) A public cemetery is a cemetery which is open to everybody desiring to bury therein. If it does not permit every member of the public to bury therein, it is a private cemetery. Kansas City v. Hyde, 196 Mo. 498; South Highland Land Improvement Co. v. Kansas City, 172 Mo. 523; Kennedy v. Nevada, 281 S.W. 58; Tracey v. Bittle, 213 Mo. 302; Stewart v. Coshow, 238 Mo. 662; State ex rel. Attorney-General v. Schweickardt, 109 Mo. 510, (b) A public cemetery is a cemetery in which every member of the public in the community at least has a right to bury their dead; not as a mere favor by permission of the owner, but by right. Brown v. Gerald, 70 L.R.A. 482; Howard Mills Co. v. Lumber Co., 18 L.R.A. (N.S.) 362; Ozark Coal Co. v. Anthracite Co., 134 S.W. 636; Cleveland Railroad Co. v. Drainage District, 72 N.E. 684; Gaylord v. Sanitary District, 68 N.E. 587; City of Gary v. Much, 94 N.E. 587; Chesapeake Stone Co. v. Moreland, 104 S.W. 765; In re Opinion of Justices, 109 Am. St. 526; Ansperger v. Crawford, 70 L.R.A. 497; Board of Health v. Van Hoesen, 49 N.W. 896; Minnesota Power Canal Co. v. Koochiching Co., 107 N.W. 413; Berrien Springs Water Power Co. v. Berrien Springs Judge, 94 N.W. 380. (c) A public cemetery under the law of this State is a cemetery which can exercise the right of eminent domain. Sec. 1088, R.S. 1919. (d) A public cemetery in this State must be a public use. Constitution, Art. 2, sec. 20. (e) The articles of agreement of defendant corporation exclude from being buried in its cemetery all people other than white people. It cannot be a public cemetery and exclude any part of the public. People ex rel. Gaskill v. Forest Home Cemetery, 101 N.E. 219; Memphis State Line Railroad Co. v. Forest Hill Cemetery Co., 94 S.W. 69. (f) The defendant corporation is by its articles of agreement and by-laws authorized to sell and does sell burial lots to private individuals at an agreed price. It has no fixed price for the same class of lots. It sells the same class of lots to people who desire the same at such price as it can procure by an individual bargain; hence, the defendant is neither a public graveyard nor a public charity, and this is true though it may use the entire proceeds of such sales for the purpose of maintaining, beautifying and ornamenting its cemetery. 5 R.C.L. 4, 237; Donnolley v. Boston Catholic Cemetery Assn., 15 N.E. 505; Board of Health v. Van Hoesen, 49 N.W. 896; In re Deans Cemetery Assn., 23 Am. Rep. 86; Haggarty v. Railroad Co., 100 Mo. App. 447; Tyree v. Bingham, 100 Mo. 461; Mason v. Bloomington Library Assn., 86 N.E. 1046; Chapman v. Newell, 125 N.W. 327; Holeman v. Renard, 141 Mo. App. 399; Shiel v. Walker, 114 Mo. App. 521; In re Board Street Opening, 28 Am. St. 640; Town of Millford v. Commissioners of Worchester, 100 N.E. 60. (g) The articles of agreement and by-laws of the defendant corporation require every one burying in its cemetery to buy a burial lot. The by-laws require every one burying in the cemetery to pay a burial fee in addition to buying a lot. Its by-laws provide that every one burying in its cemetery shall pay it $10 for a marker until a monument is erected and excludes marble, sand-stone and composition, the poor-man's tombstone, from being erected in its cemetery. Its by-laws also provide that if a burial lot is purchased and interment is made therein and the purchaser does not make full payment of the purchase price of the lot, the defendant can dig up the body so buried and place it in some other place in the cemetery designated by it and keep what has been paid on the lot as a forfeit. The by-laws and articles exclude a poor white person from being buried in its cemetery. "A public charity does not turn away the rich on account of their wealth nor the poor on account of their poverty." Buchanan v. Kennard, 234 Mo. 117, 139; Underhill on Wills (1 Ed.) 811, 1198; 11 C.J. 298, sec. 1. (2) The will provides that the defendant corporation should out of the money it received from the sale of the land in Texas County, build a chapel; after the building of the chapel the defendant should perpetually loan the remainder, and secure the loans by first mortgages on real estate, and use the interest thus derived in beautifying, ornamenting and maintaining its cemetery. The will creates both a trust and a perpetuity. Starks v. Lincoln, 291 S.W. 134; Bank v. Longfellow, 96 Mo. App. 385. In order to come within an exception to the rule against perpetuities, the trial court must have found the defendant to be a public charity; also, a public cemetery. (3) Under the common law a cemetery could only be benefited by a gift as an incident to a religious use. Death of the testator occurred in the year 1916. At that time there was no law authorizing a devise, gift or grant to a public cemetery.
M.T. January and W.M. Bowker for respondent.
(1) The rule against perpetuities deals only with the vesting of an estate and not with the time of beginning or duration of its enjoyment. If the estate vests in fee at once the rule does not apply. Normandy Consolidated School District v. Harral, 286 S.W. 86. (2) Any corporation formed under Art. 2, chap. 90, R.S. 1919 (Sec. 3438, R.S. 1909), may receive property in trust and execute the trust. Sec. 10270, R.S. 1919; Zollman American Law of Charities 374, sec. 542. (3) A corporation to operate a cemetery may be formed under said Article 2. Stewart v. Coshow, 238 Mo. 662. (4) Any corporation formed under said Article 2 has perpetual succession and is not limited to twenty years and may take in perpetuity. Stewart v. Coshow, 238 Mo. 662. (5) A cemetery association is a charitable trust. Stewart v. Coshow, 238 Mo. 662; Normandy Consolidated School District v. Harral, 286 S.W. 86; Zollman on "Charities," 372, sec. 540. (6) Unless the instrument creating the trust fund so provides, there can be no reverter, whether the fund be a gift or sale. Lewis v. Brubaker, 14 S.W.2d 982. (7) The dedication of a fund to build a chapel is a dedication to a pious or religious use. A chapel is a church. The rule against perpetuity does not apply to such a gift. Zollman on "Charities," 227, sec. 342. (8) A trust may be created in which the beneficiaries are limited to a class and it will still be a charitable trust as distinguished from a private trust, and as such exempted from the operation of the rule against perpetuities. The term "public trust" as applied to charities is a misnomer. Charitable trust is the proper term. Buckley v. Monck, 187 S.W. (Mo.) 31; Zollman on "Charities," 286, sec. 416; Robinson v. Crutcher, 209 S.W. 104. (9) Every charitable trust is a perpetuity; it is of the very nature of such a trust, and the law against perpetuities is not violated by conveyance to a charitable use. Stewart v. Coshow, 238 Mo. 662; Strothen v. Barrom, 246 Mo. 241; Buchanan v. Kennard, 234 Mo. 117.
Action at law to recover $33,200. The action was instituted in Vernon County and was tried in the Circuit Court of Bates County upon change of venue. From a judgment for defendant (respondent here) the plaintiffs were granted an appeal to this court.
William A. Newton died testate, leaving as his widow, Alice F. Newton, who was his second wife. He had no children by either his first or second marriage. The appellants are his nephews and nieces. Alice F. Newton died before this action was instituted.
William A. Newton died seized of extensive real estate holdings. He owned a tract of land near Nevada, in Vernon County, comprising slightly more than thirty-six acres. On October 30, 1911, Newton conveyed this tract to certain persons as trustees for respondent, the Newton Burial Park. The recited consideration was one dollar and an agreement on the part of the Burial Park to deed him one block of ground to be selected by him after the cemetery was platted. The Burial Park previously had secured a pro-forma decree of incorporation from the Circuit Court of Vernon County, under the provisions of present Article 11, Chapter 90, Revised Statutes 1919. On January 30, 1912, the trustees conveyed said tract to the Burial Park, subject to the terms and conditions in the Newton deed of October 30, 1911. The articles of agreement of the Newton Burial Park recited that the corporation was organized to acquire the thirty-six-acre tract and to acquire such adjoining tracts as might be necessary "and to lay it out as a Burial Park for the burial of dead white people without regard to sex, nationality or religious belief. The lots are to be sold at a sum sufficient to pay the expenses of maintaining said Burial Park and no money derived therefrom shall be used as profits, but all income over expenses shall be devoted to improving and beautifying the grounds with driveways, shrubbery, flowers, etc., as may be suggested by the skill of the landscape gardner, subject to the approval of Board of Trustees." The Burial Park adopted by-laws, but in the view we take of the case it appears unnecessary to notice them.
On November 19, 1916, William A. Newton executed his will. He died very shortly thereafter. In one of the clauses of his will Newton devised to his wife Alice F. Newton certain lands in Bates County, Missouri, "to have and to hold for and during the term of her natural life, and at her decease the said land to pass to and become the property of the Newton Burial Park, a benevolent corporation, to be by the said corporation disposed of for the purposes and upon the conditions as follows, viz: the trustees or other proper officers of the said corporation shall make sale of said lands for the said corporation and the proceeds of such sale shall be loaned on first mortgage real estate loan; shall be used in the development, beautifying, ornamenting and maintaining of the cemetery now owned by the said corporation: It being my intention and purpose that the proceeds realized from the sale of said lands shall be kept invested as above provided that a perpetual income fund be created that shall be used for the purposes above named."
Article VII of Newton's will was in part as follows:
"To my said wife, Alice F. Newton, and to W.J. McGee, of Houston, Texas County, Missouri, the survivor of them and their successors in trust, as trustees, to have and to hold for the purposes of the express trust as hereinafter provided, I give and devise all of my real estate, lands and appurtenances thereto belonging, lying, being and situate in the County of Texas, in the State of Missouri. Such Trustees shall, at such time, in such quantities and on such terms as they may deem advisable, make sale of the said lands and to the purchaser or purchasers thereof make good and sufficient deed of conveyance. The proceeds arising from the sale of said lands by said trustees shall be applied and disposed of as follows, to-wit: One-half of the said proceeds shall be delivered to my said wife, to be by her owned and held as her absolute and unqualified property, and the other half of such proceeds shall become the property of the Newton Burial Park, a Benevolent Corporation, and be by the said corporation used and applied for its benefit in manner as follows, to-wit: The said Corporation, from the funds so derived, by and through its proper officers, shall cause to be built on the Cemetery grounds now owned by said Corporation, a modern and suitable Chapel to be used in connection with services in the burial of the dead at such Cemetery. Not more, however, than Twenty-Five Thousand Dollars of such funds so to be derived shall be used in building and equipping of such chapel. The remaining part of such fund so to be derived to the said corporation as above provided shall be loaned on real estate first mortgage loans and to be so kept loaned, and the interest derived from such loans shall be used in the beautifying, ornamenting and maintaining of the cemetery now owned and operated by said corporation, it being my object and purpose to create a fund from which a perpetual income may be derived for use as aforesaid. . . .
"Any failure to use the means and funds provided in this article and that provided by article No. 5 hereof shall cause such means and funds to revert to my heirs."
Mrs. Newton was appointed as executrix and administrated Newton's estate. She and her co-trustee, W.J. McGee, sold the lands in Texas County, the consideration for which was stipulated to be paid in installments. Mrs. Newton died in 1924. When this case was tried $33,200 had been received by respondent from the trustees on account of the sale of the Texas County lands, as that part thereof to be devoted to the purposes set forth in Article VII of the Newton will. Approximately $25,000 in addition had been collected by surviving trustee McGee to be applied for the same purposes. But he had refused to pay it over to respondent because appellants in this case had made the claim upon him that they were entitled to the money. They had filed suit against McGee and that suit was still pending at the time this case was tried.
The chapel had not been erected. The site for it had been selected and marked off by curbing. Mrs. Newton had traveled extensively, studying similar structures in other cemeteries. Sketches of proposed chapel buildings, with estimates of their costs, had been procured from several architects, but no contract had been let for the erection of the chapel. The money received from the sale of the Texas County lands had been invested in notes secured by mortgages or deeds of trust upon real estate.
The Bates County lands had not been sold by the trustees or directors of respondent because of their inability to find a satisfactory market for them. Six thousand dollars of the money received by the respondent from the trustees named in Article VII of the Newton will had erroneously been paid over to Mrs. Newton by the trustees of respondent and they had filed a claim therefor against the estate of Mrs. Newton and the same had been allowed in the probate court and allowance of the claim was pending in the circuit court upon appeal at the time of the trial of this case.
The pleadings need not be noticed further than to state that the petition was based upon the theory that the devise to Mrs. Newton and Mr. McGee as trustees for the benefit of the Burial Park was void because it violated the rule against perpetuities, and, even if said devise was originally valid, "by reason of the failure of said corporation to, as above stated, comply with the terms, conditions and provisions of the said will of the said William A. Newton, the said sum of thirty-three thousand dollars ($33,000) now in its hands derived from the sale of said Texas County land has reverted to, become and now is the property of the plaintiffs herein."
In its answer respondent denied the allegations of the amended petition generally and included a cross-bill, in which it alleged facts tending to show compliance on its part with the provisions of said will and denied any forfeiture of its benefits.
We are fully convinced that the trial court correctly disposed of appellants' contention that the proceeds from the sale of the Texas County lands sued for have reverted to Compliance with appellants because the Burial Park failed to Conditions of comply with the terms, conditions and provisions Bequest. of that part of the will requiring a chapel to be built. The Bates County land had not been sold for want of a market. The chapel had not been built, but the evidence disclosed a bona-fide purpose on the part of the trustees of the Burial Park to build the same, and progress had been made toward accomplishing it. Mrs. Newton made a number of visits to cemeteries throughout the country to get ideas for constructing the chapel in the Burial Park and further contemplated visits of that character were prevented by her death in 1924. The trustees of the Burial Park had evidenced their ultimate intention of building a chapel by setting aside space for it in the cemetery and marking the same with curbing. The time when said chapel was to be built and the amount to be expended therefor, within the maximum specified in the will, were at least matters for the exercise of reasonable discretion on the part of the trustees and the amount of the expenditure would necessarily be governed by the sum eventually realized from the sale of the Texas County lands. The testimony of the trustees, that they could not well determine the amount to be spent on the chapel until they had all the money in hand appears to us as an entirely reasonable explanation of their delay in beginning the construction of the chapel until this suit was commenced in May, 1926.
We, therefore, find ourselves in accord with the findings of the trial court in favor of defendant (respondent) on the issue of reverter. This leaves as the only question for decision the contention of appellants that the devise to the Burial Park was void because the provisions of the will were violative of the rule against perpetuities.
It may be true that the Burial Park is not a public cemetery in the sense that it could exercise the power of eminent domain, be relieved of the payment of general taxes, etc. It Perpetuity. seems unnecessary for us to determine its character in that respect and we do not do so. It was incorporated as a cemetery under the provisions of Article 11, of Chapter 90, Revised Statutes 1919, as a benevolent corporation and as such its duration is necessarily perpetual. Although its use as a cemetery is by its articles of agreement restricted to the burial of dead white persons and even if such restriction rendered it powerless to condemn land, etc., as appellants contend, it does not follow that a gift to such Burial Park does not constitute a charitable trust or a public charity. The cases cited and relied upon by appellants do not deal with a situation of that character.
In re Rahn, 316 Mo. 492, l.c. 511, 291 S.W. 120, the opinion quoted approvingly from 5 Ruling Case Law, 291, where a charity is defined as follows: "Probably the most comprehensive and carefully drawn definition of a charity that has ever been formulated is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government." Full approval of the same definition was also given by this court in Catron v. Scarritt Collegiate Institute, 264 Mo. 713, l.c. 725, 175 S.W. 571.
Ruling Case Law defines a public charity, as follows:
"A gift is a `public' charity when there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. Even if its benefits are confined to specific classes, as decrepit seamen, laborers, farmers, etc., of a particular town, it is well settled that it is a public charity. The essential elements of a public charity are that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite unrestricted quality that gives it its public character. . . . A charity may restrict its admissions to a class of humanity, and still be public; it may be for the blind, the mute, those suffering under special discases, for the aged, for infants, for women, for men, for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public." (Italics ours.) [5 R.C.L. 293, 294, sec. 3; see also 11 C.J. p. 313, sec. 18.]
The same work defines a charitable trust, as follows:
"Any trust coming within the definition of a legal charity for the benefit of an indefinite class of persons sufficiently designated to indicate the intention of the donor, and constituting some portion or class of the public, is a charitable trust. It has been said that a charitable trust, in a legal sense, is one which originates from the gift, and which limits property to any public use to which it is lawful to devote property forever." [5 R.C.L. sec. 4, p. 294.]
Newton's will provided that the Texas County lands should be sold and the proceeds devoted to the crection of the chapel in the Burial Park at a cost not to exceed $25,000, and that the remainder of such proceeds and the proceeds of the Bates County land, after termination of his widow's life estate therein, should be put at interest and such interest should be used in "beautifying, ornamenting and maintaining the cemetery." Both the building of the chapel and the beautifying, ornamenting and maintaining of the cemetery were for the benefit of an indefinite number of the public of the white race and thus fulfill the foregoing definition of a charitable trust or public charity. The said gifts were not limited in such manner as to constitute them a private charity. [11 C.J. 324, sec. 34; Stewart v. Coshow, 238 Mo. 662, 142 S.W. 283.]
That the will created a perpetuity, in so far as it directed the use to be made of the proceeds from the sale of the lands in Texas and Bates counties, is asserted by appellants and not denied by respondent. But the rule against perpetuities does not apply to gifts for charitable uses and purposes. [5 R.C.L. sec. 13, p. 300; 48 C.J. 986, sec. 78; Stewart v. Coshow, supra, l.c. 674.]
The proceeds of the Texas County lands here sued for had already vested in respondent's trustees when this action was instituted. The statement in appellants' brief that respondent "admitted that it had not yet accepted the bequest and had not agreed to comply with the terms of the will" is wholly unjustified by and contradictory of the allegations of respondent's answer and cross-bill. This action is solely one at law to recover the money received by respondent. Hence, as to such gift, there can be no issue that the gift may not vest within the period fixed by the rule against perpetuities.
We hold that the gift received by respondent and now sued for by appellants was one for charitable purposes and was not void as violative of the rule against perpetuities and that appellants are not entitled to receive it.
We do not think the 1919 Act, now Section 1094, Revised Statutes 1919, affects this conclusion. That act was not passed until after Mr. Newton's death. Prior to its enactment, a gift to a cemetery which constituted a charitable trust was entirely valid. The 1919 Act provided for gifts to cemeteries as such, regardless of their character as public or private cemeteries, and even provides for gifts to care for a particular lot in any cemetery.
The right or power of respondent to receive and administer the gift as trustee, for want of charter power to do so, cannot and does not create in appellants any right to recover for themselves the funds now held by respondent, which we have concluded constitutes a charitable trust. We do not find it necessary to consider respondent's power in that respect, as the question of such power is not properly involved within the issues here. A trust will not be permitted to fail because the trustees named in the instrument creating it cannot administer the trust for any reason whatsoever. In such case a court of equity will appoint a trustee to administer the trust.
The conclusion we have reached makes it unnecessary for us to consider respondent's contention that the gift to build a chapel and beautify the cemetery grounds upon which it is to be built is valid as a gift to a pious or religious use and hence not violative of the rule against perpetuities.
The judgment is affirmed. All concur.