Opinion
No. 39690.
June 10, 1946. Rehearing Denied, July 8, 1946.
1. JUDGMENTS: Issue of Res Judicata Not Ruled. Plaintiffs may be barred by prior litigation but this issue is not ruled.
2. TRUSTS: Wills: Title Vested in Trustees. Regardless of the effect of a power of revocation retained by the grantor of the trust, the property passed by the residuary clause of the will and vested title in the same trustees for the same purposes.
3. TRUSTS: Restrictions on Alienation: Trust Not Invalidated. Restrictions upon alienation of the interests of beneficiaries during the life of the life tenant do not invalidate the trust.
4. TRUSTS: Encroachments upon Corpus: Trust Not Invalidated. Provisions for the trustees to encroach upon the corpus for the benefit of the life tenant do not invalidate the trust.
5. TRUSTS: Wills: Charities: Gifts to Institutions Valid. The provisions of the trust for certain named religious, educational and benevolent institutions to receive a portion of the estate are not too indefinite. And constitutional provisions restricting the power of religious bodies to hold real estate have no application where real estate is to be converted to personalty and only personal property distributed.
6. TRUSTS: Successive Trusts Not Invalid. A provision for the original trustees to distribute a portion of the trust estate to certain trustees who are to hold under designated trust powers is not invalid, as the equitable title vests immediately in the succeeding trustees subject to the termination of the prior trust for the benefit of the life tenant.
7. TRUSTS: Charities: Wills: Memorial to Testatrix Valid: Public Charity Created. A provision in a will that half of the corpus of a trust estate shall be distributed to certain city officials and officers of institutions as trustees for the erection or creation of a suitable monument or memorial bearing the name of the testatrix and her deceased husband is not invalid even though the trustees have discretion as to the type of the memorial. The testatrix intended some sort of a public charity.
Appeal from Polk Circuit Court. — Hon. C.H. Jackson, Judge.
AFFIRMED.
J.N. Burroughs, Frank B. Williams, and Joe N. Brown for appellants.
(1) The contention of respondents that the petition of appellants does not state facts sufficient to constitute a cause of action, or that it does not state a claim entitling plaintiffs to the relief asked, is without merit. In fact, the Fifth Amended Petition of plaintiffs has the approval of numerous authorities as to its formal allegations in cases of this kind. Masterson v. Masterson, 130 S.W.2d 629; Andre v. Andre, 232 S.W. 153; First Baptist Church v. Robberson, 71 Mo. 326; Corby v. Corby, 85 Mo. 371. (2) This proceeding is based upon the declaratory judgment act, and is supported by the decisions of our courts, and of other states as well, in construing declaratory statutes, which seem to be uniform in this country. That appellants' Fifth Amended Petition states a good cause of action under that act, both in its formal allegations and in its statement of facts there can be no doubt. Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Smith v. Pettis County, 136 S.W.2d 282; School Dist. v. Smith, 111 S.W.2d 167; Hill v. Wright, 20 A.2d 388; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688. (3) The heirs of the grantor, Barsha A. Langston, have a right to bring this action to have a judicial construction of the trust instrument in question, under general equitable rules, the same as under the Declaratory Judgment Act. Platt v. Huegel, 32 S.W.2d 605; Proctor v. Board of Trustees, 123 S.W. 862; Sanford v. Van Pelt, 282 S.W. 1022; M.E. Church v. Walters, 50 F.2d 417; Lockridge v. Mace, 109 Mo. 162; St. Louis Trust v. McAllister, 302 Mo. 152; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688. (4) Even if the grantor in the trust intended to dispose of her property to the exclusion of those who would inherit it, that would not deprive them of their rights to any portion of her property that was not legally disposed of by means of the instrument in question. Watson v. Watson, 110 Mo. 164; Hurst v. Van De Veld, 158 Mo. 239. (5) It is the rule that testators blood relatives will be given first consideration in construing provisions of will. Wyatt v. Stillman, 260 S.W. 73; Coleman v. Haworth, 8 S.W.2d 931. (6) Referring to the specific allegations of the petition, we first direct attention to the allegation that the trust instrument in question, failed to vest any title in those attempted to be made trustees, or donees or beneficiaries at the time of its execution and delivery by the grantor. Van Studdiford v. Randolph, 49 S.W.2d 250; Starks v. Lincoln, 291 S.W. 132; Trautz v. Lemp, 46 117 S.W.2d 139; Sill v. West, 125 Mo. 621. (7) The power of revocation reserved by the grantor, coupled with the right to reclaim and to repossess all or any part of the property at any time, shows lack of intent to vest title on delivery of the instrument in question. ("Indenture of Trust," Sec. "Seventh.") Brannock v. Magoon, 141 Mo. App. 320; K.C. Theological Seminary v. Kendrick, 203 S.W. 628; Thomas v. Thomas, 107 Mo. 459; In re Estate of Soulard, 141 Mo. 642; Gartside v. Pahlman, 45 Mo. App. 160. (8) The words to "pay out," used in this case imply futurity, and postpone the vesting of title until the time of happening of the event named. (Sec. "Second" of "Indenture of Trust.") Van Studdiford v. Randolph, supra; Walker v. Walker, 118 N.E. 1014; Webb v. Bile, 161 N.E. 218; In re Phearmans Estate, 232 N.E. l.c. 828; Johnson's Etate, 185 Pa. 179; 69 C.J., p. 605. (9) The indenture of trust in question also provides that none of the named beneficiaries shall have the right to anticipate his interest in the trust property, or to alienate or dispose of same, by selling, assigning, mortgaging or otherwise encumbering or disposing of his interest. The right to alienate is indispensible to ownership. (Sec. "Seventh" of Trust.) Fidelity Trust v. Tibbany, 260 S.W. 357. (10) That an effort was made to create a trust on a trust, in that, at the termination of the purported original trust, the original trustees should "pay out" the residue of the estate to new and different trustees for new and different purposes, which renders the attempted gifts void, for the reason, it failed to vest any title, in either the new trustees or those attempted to be made beneficiaries under the new trust, at the time of the creation of the original trust. Trautz v. Lemp, supra; Sill v. West, supra; 39 Cyc., p. 87. (11) That the attempted provisions for Louise W. Langston to receive the income of the estate during her lifetime, and also to encroach upon the corpus of the estate are void, because the language employed is so doubtful and uncertain as to the authority and direction of the trustees and the limitations as to what they could do for her support, that its meaning cannot be determined. Sevier v. Woodson, 205 Mo. 202; Sanford v. Sanford, 68 P. 494; Annis v. Huggins, 152 N.W. 114; 65 C.J., p. 273. (12) That the attempted gift to each and every one of the purported beneficiaries in the residuary clause of said trust instrument, is so vague, indefinite and uncertain as to who are the beneficiaries intended, and as to the objects and purposes of the attempted gifts or how the trustees named to handle the funds should employ the same as to render the gifts to each and every one of them void and of no effect. Sanford v. Van Pelt, supra; Board of Trustees v. May, 201 Mo. 360; M.E. Church v. Walters, 50 F.2d 417; Wentura v. Kinnerk, 5 S.W.2d 66. (13) That the attempted gifts to the Central College, the Masonic Home and for a memorial, each constitutes an effort to create a trust for private purposes, and the fact that there was no statement of the object and purposes of the attempted gift and no direction to trustees as to how to apply the funds, renders the gift void, because it is so vague, indefinite and uncertain that it cannot be enforced, and also violates the law of perpetuities. Buchanan v. Kinnaird, 136 S.W. 415; Thorp v. Land, 227 Mass. 474; 65 C.J., pp. 233-238. (14) That the attempted gifts to the Central College and the Masonic Home, each were made in the name of "Board of Trustees," if any gifts were made to those institutions at all. The petition alleges that said defendants had filed pleadings in this and in other actions, in which it was alleged that said "Board of Trustees" did not constitute legal entities, which if true, rendered the attempted gifts to said Masonic Home and Central College void. 65 C.J., pp. 233, 234. (15) That the attempted gift for the erection and maintenance of a memorial has been expressly held to be void and non-enforceable, in the following cases: In re Stephens Estate, 195 A. 193; Morristown Trust Co. v. Mayor of Morristown, 91 A. 736; Bates v. Bates, 134 Mass. 110; In re Jones, 79 L.T. Rep. N.S. 154. (16) And said attempted gift for a memorial must also fail for uncertainty, lack of beneficiaries and failure to state object and purpose as heretofore assigned, and because it violates the rule as to perpetuities. (17) That the attempted gifts to the First Methodist Church and the First Presbyterian Church, are to religious corporations, prohibited by Sec. 8, Article II, Constitution of Missouri, and, therefore, said churches cannot accept and receive said gifts. Proctor v. Board of Trustees, 225 Mo. 51; M.E. Church v. Walters, 50 F.2d 416; Society v. Branch, 120 Mo. 226; Helpers v. Law, 186 S.W. 718; In re Institute, 27 Mo. App. 633. (18) This suit was filed on the 28th day of September, 1943. It is alleged in the petition that plaintiffs had no knowledge of the facts, and that the defendants wrongfully concealed the facts from the plaintiffs until February, 1939; that they were without the necessary information on which to base their action until that time, which was obtained by court orders on the defendants to produce the same; that the statute of limitations did not begin to run until February, 1939, therefore, this suit was clearly brought within the five year period. Sec. 827, R.S. 1939; Wheeler v. Ry. Co., 328 Mo. 888, 42 S.W.2d 579; Sonnefeld v. Millinery Co., 241 Mo. 309; Harper v. Pape, 9 Mo. 402; Branner v. Klaber, 330 Mo. 306; Prewitt v. Prewitt, 188 Mo. 675. (19) The Masonic Home and the Central College, two of the defendants, delayed in answering the summons for eight months. And when they did appear, they filed motions to quash the summons and the returns thereon. After another delay of nine months, the court overruled said motions to quash. Thereupon said defendants entered appearance to the merits of the action, thereby waiving their objections, and the service relates back to that of the original summons. Kahn v. Ins. Co., 228 Mo. 585; Taylor v. Mo. Pac. Ry., 279 S.W. 115. (20) The return of the officer as to the service of process is conclusive on the party served and he will not be allowed to falsify that return. Newcomb v. N.Y.C. Ry. 182 Mo. 687; State ex rel. v. Frazier, 143 S.W.2d 64; Walker v. Wab. Ry. Co., 234 S.W. 520. (21) Unless a party to a suit who has been summoned in the wrong name, appears at the return term and raises the question, he will be deemed to have waived it. Belkin v. Rhodes, 76 Mo. 643; Bedell v. Richardson, 226 S.W. 655; Stigall v. Pigment Co., 150 Mo. App. 276; Parry v. Woodson, 33 Mo. l.c. 348. (22) Where a party adopts a certain name he may be sued by that name, and he will be bound by it under the doctrine of estoppel. And that rule applies to all four of the corporate defendants in this action. State ex rel. v. Waltner, 156 S.W.2d 666. (23) Even though appellants should fail to establish that the present action was brought within the five year period, the allegations of their petition, that they brought a prior action, on this same instrument, against the same defendants, asking a declaration of their rights, on May 12, 1942, and dismissed by plaintiffs on September 29, 1942, and that they filed this suit within a year, that is, on the 28th of September, 1943, would beyond doubt save them from any bar of the statute of limitations. Sec. 1026, R.S. 1939; Johnson v. Ry., 177 Mo. App. 298, 164 S.W. 128; Karnes v. Ins. Co., 144 Mo. 413, 46 S.W. 166; Stephens v. Mfg. Co., 70 S.W.2d 899. (24) And finally, each and all the defendants are necessary parties to this action, and it could not be tried and determined until they were brought in as defendants. That being true, our courts have definitely held that if in such cases, the suit is filed within the statutory period, but there is failure to make some of the necessary parties defendant, they may be made such and summoned into court though the statutory period has run, and the service will relate them back to the time of filing the original petition. Honey v. Thompson, 98 S.W.2d 639; Gresham v. Talbot, 31 S.W.2d 766; Cytoon v. St. Louis Union Trust Co., 205 Mo. 692. (25) The former action was one at law, and sought to set aside the trust instrument on the ground of fraud, and the recovery of the specific property held under the trust, for the plaintiffs. The present action is one in equity, which asks that the instrument be construed and the rights of the various parties thereunder be declared, so there is lack of identity of causes of action and the thing sued for. Stephens v. Moore, 249 S.W. 601; O'Malley v. Musick, 177 S.W. 749, 191 Mo. App. 405; Taylor v. Welch, 168 Mo. App. 223; Gwin v. Smur, 49 Mo. App. 361; State to Use v. Hollingshead, 83 Mo. App. 678; Winham v. Kline, 77 Mo. App. 36. (26) The trustees were made parties to the former action, but they were not made parties as executors. They are made parties both as trustees and as executors in the present action. So there is a difference in parties and in the quality of the parties to the two actions. Kirk v. Metropolitan Ins. Co., 38 S.W.2d 519; State ex rel. Larson v. Mathieson, 261 S.W. l.c. 336; Egger v. Egger, 225 Mo. 116; Lawless v. Lawless, 47 Mo. App. 523. (27) In the former case, one ground for sustaining the demurrer was due to failure to plead the "Indenture of Trust," sued on. The court pointed out the fact that it was merely pleaded as an exhibit to the petition. Nor was there any effort to set forth its provisions by proper allegations, therefore, the instrument in question was not even before the court for consideration, as it was not a proper subject of adjudication. Natl. Union Ins. Co. v. Nevils, 274 S.W. 503; McManus v. Butler, 213 S.W. 447; Hubbard v. Slavens, 218 Mo. 598; Brown v. Mass. Tie Co., 155 Mo. App. 622. (28) This court, in deciding the former case, held that the petition was demurrable, for the reason it failed to describe the property sought to be recovered. That being true, there was in reality no subject of litigation before the court, which would bring it within the rule that former adjudication cannot be invoked, unless there is identity of the subject matter, or of the things sued for. Stephens v. Moore, 298 Mo. 215; State to Use v. Hollingshead, 83 Mo. App. l.c. 682; Lawless v. Lawless, 47 Mo. App. 523. (29) It is within the power and province of the court to construe the residuary clause of the will, to determine whether it would dispose of all or any part of the trust estate against the contentions of appellants, under the rule that once a court of equity assumes jurisdiction of a cause, it will do full and complete justice to all the parties concerned. Canty v. Halpin, 242 S.W. 97, 294 Mo. 118; Schwartzman v. London Fire Ins. Co., 2 S.W.2d 503; Hurst Automatic Co. v. Trust Co., 236 S.W. 58; Frimble v. Wollman, 71 Mo. App. 467. (30) The decision in the former action held that the petition of plaintiff failed to state facts that would entitle them to go around the administrator and sue for the property themselves, therefore, it failed to show a present right in plaintiffs to sue to recover the property. The respondents contend that by reason of that holding plaintiffs have no right to maintain the present action. But the instant petition alleges facts, and truthfully so, that show they have no remedy through the executors, and did not have through the administrators pendente lite. It was held in the following cases that such facts constitute an exception to the general rule that the heirs can only sue through the administrator, though it is not necessary to make such showing in a declaratory action. Ford v. Hennessey, 70 Mo. 580; Toler v. Judd, 262 Mo. 344; Wass v. Hammontree, 77 S.W.2d 1006. (31) The decision of the former case is not even the law of this case, for the reason that the former decision must have been between the same parties, and involving the same identical matters, and also the same cause of action. In fact, all the elements necessary to constitute a former adjudication must be present in the law of the case, as well as the facts. State ex rel. St. Joseph Water Co. v. Eastin, 192 S.W. 1006; Knorp v. Thompson, Trustee, 352 Mo. 44; Smith v. Berryman, 272 Mo. 365. (32) It is the law of this state that in event the residuary clause of an instrument, either a will or trust, provides that the same be divided among the legatees in aliquot parts, that no legatee can take more than the percentage or portion given him, unless the instrument expressly so provides, or unless those named as legatees belong to a class of persons. Plummer v. Brown, 287 S.W. 316. (33) The rules of law pertaining to trusts are applicable alike to both real property and to personalty. Deacon v. St. Louis Union Trust Co., 197 S.W. 261; In re Catrons Estate, 82 Mo. App. 416; Good Samaritan v. Miss. Trust Co., 137 Mo. App. 179. (34) And the same rules of construction apply to both trusts and wills, except that in trusts the title must vest at time of execution, while in case of wills it vests at time of the death of the testatrix, if it vests at all. Trautz v. Lemp, 46 S.W.2d 139. (35) In event sufficient of the provisions of the trust are void, or fail to pass title to the donees or beneficiaries, to upset the general plan and purpose of the grantor or testatrix, Barsha A. Langston, in the creation of the trust, the entire trust will be held to be void. Sheppard v. Fisher, 206 Mo. 208; Loud v. St. Louis Union Trust Co., 249 S.W. l.c. 639; Lockridge v. Mace, 109 Mo. 162; Mockbee v. Grooms, 254 S.W. 170; M.E. Church v. Walters, 50 Fed. l.c. 417. (36) This trust was without consideration and what is termed by the law a voluntary trust, and executory in character. Sanford v. Van Pelt, 282 S.W. 1022; Brannock v. Magoon, 141 Mo. App. 316.
A.W. Landis, Arch A. Johnson, Herman Pufahl, Robert L. Hyder, A.D. Scarritt and Elliott H. Jones for respondents.
(1) The merits of this case are not presented on this appeal. The sole question presented here is as to the right of these plaintiffs to maintain an action with respect to the trust in question. (2) The sole question presented here, namely, the question as to the right of these plaintiffs to maintain an action against the trust, has become res judicata, by reason of the judgment in Odom v. Langston, 173 S.W.2d 826. (3) A question of law may become res judicata. Johnson v. United Rys. 243 Mo. 278; Norwood v. Norwood, 183 S.W.2d 118. (4) A judgment upon a demurrer going to the merits is res judicata as to the issue decided. Powell v. Joplin, 73 S.W.2d 408; Johnson v. United Rys., 243 Mo. 278. (5) The law declared by this court in the former appeal, in Odom v. Langston, 173 S.W.2d 826, is the law on this appeal. (6) Plaintiffs' petition shows no right of action, in themselves, against this trust. Odom v. Langston, 173 S.W.2d 826; Toler v. Judd, 262 Mo. 344; Wass v. Hammontree, 77 S.W.2d 1006. (7) Plaintiffs do not create any right of action, in themselves, with respect to this trust by merely attempting to adopt a different remedy, namely, an action under the Declaratory Judgment Act. Plaintiffs state no case under said Act because it affirmatively appears that they have no existing right or present interest in the trust property in question, or in the relief sought. Secs. 1127, 1129, R.S. 1939; Vincent Realty Co. v. Brown, 126 S.W.2d 1162; 87 A.L.R. 1215; 68 A.L.R. 118. (8) The court will not undertake to declare a right which depends upon a contingency that may never happen. Heller v. Shapiro, 232 N.W. 174; U.S.F. G. Co. v. Askew, 191 S.W.2d 533. (9) Since the will was outstanding when this suit was brought, and still is, plaintiffs had no accrued right of action against the trust when this suit was brought, and have none now. 49 C.J., pp. 132, 135; Melvin v. Melvin, 97 P. 696, 8 Cal.App. 684.
Plaintiffs, as heirs of Barsha A. Langston, deceased, on September 28, 1943, sued for a declaratory judgment to test the validity of a trust instrument executed by her. The trial court sustained separate motions of defendants to dismiss the petition on the ground that it "fails to state facts sufficient to constitute a cause of action in plaintiffs, or to state a claim entitling plaintiffs to relief . . ." Plaintiffs declined to plead further, judgment was rendered against them and they have appealed.
In November, 1935, Barsha A. Langston executed the trust instrument transferring to named trustees personal property of the value of about $95,000.00 with directions to pay the net income to the grantor during her life, then to Louise W. Langston during her life or widowhood and then to pay fifty per cent of the trust fund in specified proportions to certain named institutions and fifty per cent to trustees for the erection of a memorial. Barsha A. Langston died testate in April, 1938. Her will, probated in common form in May, 1938, contained certain specific bequests and a residuary clause by which she devised and bequeathed the remainder of her estate to the same trustees, for the same purposes and on the same terms as specified in the trust instrument.
In December, 1938, plaintiffs filed a suit to contest the will. The trial court directed a verdict sustaining the will. On appeal we reversed and remanded the case. [ 347 Mo. 1201, 152 S.W.2d 124] On a re-trial the will was again sustained and plaintiffs appealed, but dismissed their appeal. In February, 1941, plaintiffs sued to set aside the trust instrument, executed in 1935. The trial court sustained a demurrer to this petition and we affirmed the judgment rendered against plaintiffs, [ 351 Mo. 609, 173 S.W.2d 826]. In April, 1944, plaintiffs filed suit to have the residuary clause in the will of Barsha A. Langston declared void. On defendants' motion, the trial court dismissed the case as barred by the five year statute of limitations. Plaintiffs appealed to this court and we have affirmed the judgment in case number 39583, decided contemporaneously herewith, 355 Mo. 109, 195 S.W.2d 463.
In the instant case the sole question is: does the petition state facts sufficient to constitute a cause of action in plaintiffs, or to state a claim entitling plaintiffs to relief? The words we have emphasized indicate that the petition must not only state an abstract cause of action in some person or persons, but it must state a cause of action [468] in plaintiffs. The petition must show that plaintiffs have a right to the relief prayed. On that question respondents say our opinion in 351 Mo. 609, 173 S.W.2d 826 is res judicata. In that case these same plaintiffs attacked this same trust instrument on the ground that it was obtained by fraud and undue influence. The petition showed that Mrs. Langston left a will, the residuary clause of which, it was alleged, contained the same provisions as the trust instrument, and that her estate was in process of administration by an administrator pendente lite. We held that the right of action, if any, to attack the trust instrument and recover the trust property was in the administrator or executors and not in the plaintiffs as heirs of Mrs. Langston. We further indicated that plaintiffs, as heirs, never could have an interest in the property transferred by the trust instrument until the will, or at least the residuary clause thereof, be set aside; because, if the trust instrument be set aside, the residuary clause of the will, if valid, will devise the trust property to others than the plaintiffs.
That the trust instrument is assailed on different grounds in the instant suit does not prevent our former opinion from being res judicata as to appellants' right to sue, but there are other differences in the petitions in the two cases. The former petition sets out neither the residuary clause of the will nor the trust instrument. It stated the conclusion that the residuary clause is identical with the trust instrument, but the latter was mentioned and set out only as an exhibit which, under the practice then in vogue, could not be considered as a part of the petition. In the instant case both the residuary clause and the trust instrument are properly before us. Also appellants have attempted to supply other deficiencies in their petition as to their right to by-pass the legal representatives of the estate and bring suit as heirs. Although appellants must show the invalidity of the residuary clause in order to establish their right to inherit as heirs, the prayer of the instant petition does not ask that the residuary clause be declared invalid. It seeks relief against the trust instrument alone and this is conceded by appellants' brief as follows:
"In one way of looking at the matter, the trust should be held illegal because of its own inherent vices, and the residuary clause of the will should be held illegal because of its own inherent vices, and thus the rights of the heirs to have an accounting from the trustees in both trusts as to the separate trust properties would be established. This could be either in one action or in separate actions. It happens by dismissing the will count in the Declaratory Judgment action and the trust count in the will action, the heirs are asking that it be done in separate actions. But this fact does not in any way militate against their right to have it done."
Appellants are seeking to assail the residuary clause in one action [cause Number 39583, filed in April, 1944, and now pending in this court] and to interpret and assail the trust instrument in another action. [The instant suit, filed September 28, 1943.] In case Number 39583, our opinion holds that appellants' cause of action to assail the residuary clause of the will accrued on May 17, 1938, and became barred by the statute of limitations within five years from that date, to wit, May 16, 1943.
The results of previous litigation are: the validity of the will as a whole has been finally determined and appellants have become barred from directly attacking the residuary clause of the will. We think our former opinions were correctly ruled and that they pose a serious question as to the right of appellants to maintain the instant suit. But, under the extraordinary situation presented here, we deem it proper to consider the contentions made by appellants as to the validity of the trust provisions.
The petition in the instant case directly assails the trust instrument alone, but it shows that the provisions of that instrument are identical with those in the residuary clause. Therefore, if the trust is illegal or impossible in the one instrument it is just as much so in the other and, if such invalidity is established, the residuary clause would convey the property to no one and it would descend as intestate property. Thus, it is proper to consider the provisions of the trust instrument which are as follows: It authorizes the trustees to encroach upon the corpus of the trust fund for the benefit of the life beneficiaries [469] in the event of certain emergencies, and reserves the right in the grantor to revoke the trust in whole or part during her lifetime; the trustees shall pay the net income to Barsha A. Langston during her life, then to Louise W. Langston during her life or until her remarriage; then the trust shall cease and the corpus remaining be paid out as follows: five per cent to Board of Trustees or governing body, by whatever name called, of the First Methodist Church, South, of West Plains, Missouri; ten per cent to Board of Trustees, etc., of the First Presbyterian Church, of West Plains, Missouri; twenty-five per cent to Board of Trustees, etc., of Central College, Fayette, Missouri; ten per cent to Board of Trustees, etc., of the Masonic Home of Missouri, of St. Louis; fifty per cent to trustees hereafter named "for the erection or creation of a monument, to be known as the Samuel J. Langston and Barsha A. Langston Memorial, which will be situated in the city of West Plains, Mo., and be built or created and maintained under the direction of the following individuals; the mayor, two commissioners and president of Chamber of Commerce of West Plains, the president of Chapter C.M. of Missouri P.E.O. Sisterhood, the Worthy Matron of West Plains Chapter 193, Order of Eastern Star, who are authorized and empowered to decide upon the type, style and location, within the City of West Plains, Missouri, of said memorial."
Appellants say the trust instrument failed to vest title in the trustees at the time of its execution because of the power of revocation retained by the grantor. Even if that contention be sound, which we do not concede, the property passed by the residuary clause of the will and vested title in the same trustees for the same purposes immediately upon the death of the grantor.
The trust instrument contains a restriction on the anticipation or alienation of their interests by the beneficiaries. This does not invalidate the trust. This restriction could only apply during the life of Louise W. Langston for, upon her death, the trust will cease and the beneficiaries will receive their shares in cash.
The permission for the trustees to encroach upon the corpus for the benefit of Louise W. Langston in certain emergencies does not injuriously affect the trust. Cases cited by appellants on this contention hold that where one provision of a will gives a devisee the entire income or a life estate in property a later provision attempting to authorize trustees to withhold a portion of the income is invalid; or that where the portion which the beneficiary is to receive is uncertain, the trust is invalid. No such questions are in the instant case. Louise W. Langston is definitely to receive the entire net income during her life or widowhood, and may receive a portion of the corpus in an emergency.
There is no merit in appellants' contentions that the provisions for the named religious, educational and benevolent institutions are vague and indefinite. Those provisions merely direct the trustees to make cash payments in definite proportions to the board or body authorized to receive same for each named institution after the termination of the trust by the death or marriage of Louise W. Langston. Appellants cite constitutional provisions restricting the power of religious bodies to hold real estate. They do not apply here because, whether the trust is created by the trust instrument or the residuary clause, only personal property is involved. The trust instrument describes personalty only and the will provides for conversion of real estate to personalty. No case cited by appellants supports their contentions as to the matters we have thus far discussed.
The remaining provision of the trust, that directing the trustees at Louise W. Langston's death or remarriage to pay fifty per cent of the corpus to designated trustees for the erection of a monument or memorial, deserves more extended discussion. As to this provision, appellants make objections: that it is invalid as an attempt to create a trust upon a trust; that it is too indefinite to be enforced, and violates the rule against perpetuities. On the first contention appellants cite Sell v. West, 125 Mo. 621, 28 S.W. 969, and Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135. Those cases follow the [470] general rule, with which we agree, that a trust can only be created at the time of the transaction or execution of the trust instrument, and not to commence in the future. The provision now considered does not violate that rule for the equitable title to fifty per cent of the corpus, subject to possible encroachment for the benefit of Louise W. Langston, is vested in the trustees for the memorial at the death of Barsha A. Langston and only the management and possession are postponed until the death or remarriage of Louise W. Langston.
Appellants cite cases from other states, typical of which is Bates v. Bates, 134 Mass. 110, holding that "a provision in a will, establishing a fund for the preservation, adornment and repair of a private monumental structure, creates a perpetuity for a use not charitable, and is void." However, in Missouri a statute authorizes the spending of a "reasonable" amount for a monument, with court approval, even where no testamentary provision authorizes it; [Sec. 181, R.S. Mo. 1939, Mo. R.S.A.] and, of course, a similar provision in a will would be valid. Query: would a testator have the right to determine what portion of his estate would be "reasonable" for such purpose? The provision of the Langston will speaks of a "monument" and a "memorial" and uses the terms interchangeably. Either term may mean "any thing by which the memory of a person, thing, idea, art, science or event is preserved or perpetuated." [Black's Law Dictionary, 3rd Ed. p. 1202.] The will provides that the monument shall be designated as a memorial to testator and her deceased husband, but that fact alone does not make it a private charity. [Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327; Bogert on Trusts, Vol. 2, p. 1109, sec. 364.] The will does not prescribe the type of memorial. It expressly leaves that function to the trustees named and does not restrict them to the erection of a private charity, so long as it bears the Langston name. Indeed, by naming as trustees city officials, officers of fraternal orders and of a chamber of commerce, it would seem that testator had in mind some kind of a public charity. Vesting discretion in the trustees to select the type of charity does not invalidate the trust, [Standley v. Allen, 349 Mo. 1115, 163 S.W.2d 1012] and we cannot presume that they will illegally or improperly exercise their discretion.
We have carefully examined the contentions of appellants and the cases cited in support of them and hold that the petition fails to state facts showing invalidity in the trust, or any provision thereof. Therefore, the trial court did not err in sustaining respondents' motion to dismiss the petition and the judgment is hereby affirmed. All concur.