Opinion
May 9, 1947. Motion for Rehearing or to Transfer to Supreme Court denied June 10, 1947.
1. — Appeal and Error. Separate appeals taken from single judgment declaring how remainders of testamentary trusts should be distributed were properly consolidated.
2. — Charities. Will provision, directing that remainders of testamentary trusts be given to lodge trustees to be applied with an equivalent amount raised by lodge to the construction of a hospital costing a specified minimum sum, was not a bequest of remaining funds to charity generally but gave remainder to lodge solely for construction of hospital so that whatever trustees of lodge received was required to be applied to hospital.
3. — Wills. Where one provision of a will requires construction, all provisions of will must be construed.
4. — Charities. Where will provided that remainders of testamentary trusts and an equivalent sum raised by lodge be used by lodge trustees for the construction of a hospital costing a specified sum and lodge trustees raised an equivalent sum but had not commenced construction of hospital at time of death of last true beneficiary, lodge was entitled to a reasonable time within which to construct hospital and testator's heirs had no claim to remainder before such reasonable time elapsed.
5. — Charities. Where testator provided that remainders of testamentary trust go to lodge trustees to be applied with an equivalent sum raised by lodge, to the construction of a hospital costing a minimum sum, lodge trustees, in order to receive remainders, were not only required to raise an equivalent amount but to apply that amount on a hospital within a reasonable time and thereafter see that remainder was also so applied, otherwise legacy would be declared lapsed and go to heirs of testator.
6. — Charities. Where lodge trustees, under provisions of will, were entitled to remainders of testamentary trusts for the sole purpose of applying such sum and an equivalent sum raised by lodge to the construction of a hospital costing a specified minimum sum, court properly required lodge to give a bond in a sum about equal to what they would have received from the estate so as to prevent lodge from receiving remainder and then failing to construct such hospital, the bond being for protection of testator's heirs.
7. — Trusts. Where testamentary trustee entertained doubt as to whom remainder should be paid, necessitating a petition to court for directions, allowance of a fee of $250 to trustee's attorney payable out of remainder was reasonable and direction that trustees of lodge, to whom remainder was made conditionally payable, pay costs of proceeding out of such remainder was warranted.
8. — Charities. Where will left remainder of testamentary trust to lodge trustees to be applied, with an equivalent sum raised by trustees, to the construction of a hospital costing at least a specified minimum sum, lodge trustees could not complain that they were required to give bond not only for money received but for erection of such a hospital, since they could dispense with premium on such bond at any time by satisfying trial judge that they applied remainder of estate in manner intended by testator or that they could not do so and were allowing legacy to lapse.
9. — Charities. Where will left certain money to lodge upon specified conditions, court properly made lodge trustees the trustees of the court and required reports from them from time to time as to disposition of funds received from testator's estate.
10. — Appeal and Error — Charities. Where lodge, to which testator left remainders of testamentary trusts upon condition, had not yet had a reasonable time within which to comply with conditions, intervening petition of testator's heirs at law and their appeal from order of court thereon were dismissible as premature.
11. — Appeal and Error. Denial of motion for judgment on the pleadings were not error, notwithstanding statement in findings of fact that court was of opinion that it would be justified in rendering a judgment on the pleadings, there being nothing in record to show that any other judgment than the one given would have been rendered even on the pleadings.
12. — Charities. Where will bequeathed remainders of testamentary trusts to lodge trustees upon specified conditions and did not dispense with security, court properly required lodge trustees to give security before turning over remainder to them as trustees of the court, notwithstanding that neither petitioner nor interveners asked for such security.
Appeal from Circuit Court of Newton County. — Hon. Emory E. Smith, Judge.
AFFIRMED.
Thomas A. Johnson and Leo H. Johnson for appellants.
The lower court erred in not sustaining appellants' motion for judgment on the pleadings in accordance with the prayer of appellant's amended answer on which said cause was tried. When the will is not ambiguous and the intent of the testator is clear, the court need not consider the circumstances surrounding the testator and should not attempt to make a new will or make an equitable distribution of the estate. Lyter et al. v. Vestal et al., 196 S.W.2d 769 l.c. 771. A court of chancery may define but cannot alter or enlarge the powers conferred upon trustees by a valid will. Brookings v. Miss. Valley Trust Co., 196 S.W.2d 775, l.c. 779. A motion for judgment on the pleadings will lie when from the face of the pleadings the moving party is entitled to judgment as a matter of law. Hunter v. Delta Realty Co., 169 S.W.2d 936, l.c. 938, 350 Mo. 1123. Baker v. Lamar, 140 S.W.2d 31, l.c. 33. The lower court erred in not opening said judgment and decree entered June 21, 1946, and modifying or amending the same by striking the provisions thereof requiring appellants to make bond in the sum of $5,000 conditioned on their using said fund for the purpose set out in the will, by striking the provisions thereof appointing these appellants as trustees of the court, and by striking the provisions thereof requiring these appellants to file an annual report with the court until finally discharged by order of the court. Under the statutes of Missouri, trustees named in a Will to hold, manage or dispose of an estate may be required by the circuit court of the County in which the will shall be proved and recorded to give bond, in such sum and with such securities as the court shall direct, except where the will shall, in express terms, dispense with security. Sec. 3528 R.S. Mo. 1939. In an action to construe a Will it is not necessary for the court to require the trustees named in the Will to give bond and security for the faithful performance of their duty. It is the duty of the court to construe the Will and not trouble itself with the result. West v. Bailey, 196 Mo. 517, l.c. 521. The statutes provide for definite procedure by any person having a beneficial interest to petition the circuit court, asking that the trustee be required to give bond, with opportunity to the trustee to answer the petition, and such procedure is not through a petition to construe the Will. Secs. 3529, 3530 and 3531, R.S. Mo. 1939. Yore v. Crow, 90 Mo. App. 562, l.c. 565. The lower court erred in allowing plaintiff an attorney fee for his attorneys in the sum of $250, and charging costs against the trust-estate. Where the purpose of litigation is not to benefit the trust estate, nor to protect or conserve it, the trust estate should not be charged with the expenses and the attorney fees of litigants who have attempted to destroy the trust estate. St. Louis Union Trust Co. v. Kaltenback, 186 S.W.2d 578, l.c. 583; Thatcher v. Lewis, 76 S.W.2d 677, l.c. 684, 335 Mo. 1130; Chapman v. Chapman, 77 S.W.2d 87, 336 Mo. 98; Cornet v. Cornet, 190 S.W. 333, 269 Mo. 298, l.c. 310. The bequest of testator to appellant trustees set up a charitable trust. Absent provisions to the contrary, a gift to charity is forever and there can be no reversion to the donor or to his heirs. A trust for the purpose of building and maintaining a hospital is a charitable trust. A public charity is any gift not inconsistent with existing laws which is promotive of science or tends to the education, enlightenment, benefit or amelioration of the condition of mankind, or the diffusion of useful knowledge, or is for the public convenience. Buchanan v. Kennard, 234 Mo. 117, l.c. 137, 139; Catron v. Scarritt Collegeiate Institute, 264 Mo. 713, l.c. 725. An unconditional public charity is irrevocable and perpetual, leaving no interest whatever in the founder, his heirs or assigns. Upon title vesting in trustees for charitable uses there can be no reversion to donor or to his heirs. The law favors and nourishes charity. The beneficiaries of it may be somewhat uncertain, the grant a little indefinite, but the law benignly aids the charitable use by recognizing that in a public charity uncertainty as to the individual whom the benefit may reach is one of its essential features. Mott v. Morris, 249 Mo. 137, l.c. 147, 150; Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118. The courts of Missouri apply the doctrine of Cy Pres, under which the courts of equity may vary the details of administration of a charity in order to effectuate the paramount purpose of its founder. Lackland v. Walker, 151 Mo. 210; Catron v. Scarritt Collegeiate Institute, 264 Mo. 713, l.c. 729. The rule against perpetuities does not apply to gifts for charitable uses and purposes. Steward v. Coshow, 238 Mo. 662, l.c. 674, 142 S.W. 283; Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118, l.c. 121.
Paul E. Carver for appellants.
The judgment of the trial court is and was against the greater weight of the evidence and of all the evidence, was for the wrong party and could not have been arrived at by any proper consideration of the evidence or the will. Section 5 of the will shows upon its face that it is void in that it violates the rule against perpetuities. The rule against perpetuities is that no interest within scope is good unless it must vest, if at all, not later than 21 years after some life or lives in being and 10 months at the time of the creation of the interest. St. Louis Trust Company v. Bassett, 85 S.W. l.c. 575; Loud v. St. Louis Trust Company, 298 Mo. 148, l.c. 169; Sheppard v. Fisher, 206 Mo. 208, l.c. 238-241. Where the vesting of a gift is not limited upon the life of any person, the term cannot be longer than 21 years computed from the time of the creation of the future estate or interest. 41 American Jurisprudence 63. A possibility or even a probability that the interest or estate may vest within that time is not enough. Riley v. Jaeger, 189 S.W. 1168; Sheppard v. Fisher, 206 Mo. 208, l.c. 239; Lockridge v. Mace, 109 Mo. 162, l.c. 166. The Odd Fellows Lodge is not a public charity as the benefits are not to be conferred upon the public at large or some portion thereof or upon an indefinite class of people. The essential elements of a public charity are that it is not confined to privileged individuals but is open to the indefinite public. 5 R.C.L. 293; 11 C.J. 313. A voluntary association for mutual benefit of its members is not a public charity. Smith v. Reynolds, 43 F. Supp. 510; In re Dol's Estate, 187 P. 428. An Odd Fellows Hospital, sponsored by the Odd Fellows Lodge, is not a public charitable organization. In re Sharp's Estate, 71 Pa. Super. 434; In re Rathbon's Estate, 11 N.Y.S.2d 528, l.c. 529; In re Channon's Estate, 109 A. 756, l.c. 758. A charitable bequest is subject to the rule of perpetuities in certain instance. Malmquist v. Detar, 255 P. 42; Brooks v. Belfast, 38 A. 222; 48 C.J. 952. Where the gift is contingent and where it is not intended to vest until the happening of some inevitable future event, this being a condition precedent to the vesting of the beneficial interest, the test of the rule against remoteness is to be applied and if the contingency of the happening of the condition precedent may possibly be deferred beyond a life or lives in being and 21 years the limitation is bad under the rule although the trust be charitable. Russell v. Girard Trust Company, 171 F. 161, l.c. 164; Brooks v. Belfast, 38 A. 222; 48 C.J. 952. If a gift is made to a charity on a contingent event and the happening or the event is a condition precedent to the gift, then if the condition is too remote or for any other reason illegal, the gift to charity is void. Malmquist v. Detar, 255 P. 42. Gray on Perpetuities, 4th Edition, Sections 605-606 and cases cited; 3 Scott on Trust, Section 401.8. The court erred in improperly construing the will in that it declared paragraph 5 to be a trust estate and not declaring it a contingent bequest. Where there is doubt as to the proper construction of the Will, after its own provisions and language are fully considered, the court has the right, in aid of construction or interpretation, to consider the circumstances surrounding the testator at the time of making it. Lyter v. Vestol, 196 S.W.2d 769. The fulfilling of the precedent required in the will must be compiled with and unless this is done the bequest fails. Trustees v. Cambridge First Parish, 71 N.E. 74. A lapsed devise or legacy will go to the heirs of the testator. Schmucker's Estate v. Reel, 61 Mo. 592; Proctor v. Board of Trustees, 225 Mo. 51, l.c. 69. Thomas A. Johnson Leo H. Johnson for appellants and C.C. Hawley, et al.
Paul E. Carter for appellants, The Unknown Heirs of James M. Jobe, Deceased, et al., and Rice Rice for respondent.
APPEAL OF THE UNKNOWN HEIRS OF JAMES M. JOBE, DECEASED, ET AL., DISMISSED.
APPEAL OF DEFENDANTS C.C. HAWLEY, TRUSTEES, AFFIRMED AND CAUSE REMANDED.
By order of this Court, pursuant to an agreement of counsel, the above two cases were consolidated and submitted to this Court on briefs. Such consolidation was well justified, since the two numbered cases have come to this Court by two separate appeals from the same judgment below.
The case before the Newton County Circuit Court was a suit by L.D. Rice, trustee of what was left of the estate of Simeon S. Jobe, who had died testate some twenty-one years before this suit was instituted against the trustees of Independent Order of Odd Fellows Lodge No. 85, of Neosho, Missouri, and the unknown heirs, etc., of certain persons named in the petition. Service by publication was had upon such unknown defendants, who were heirs, etc., of deceased persons, as named in said will, and service was had upon the trustees of said lodge. The trustees of said lodge filed an answer. Certain alleged heirs appeared and filed pleadings.
Before proceeding further, it would be well to set out the will of Simeon S. Jobe, deceased, as attached to the petition of plaintiff, to-wit:
— WILL —
"I, Simeon S. Jobe, of Neosho, Missouri, Newton County, being of sound mind and memory do publish and declare this to be my last will and Testament, as follows:
"Item 1.
"I desire that all my just debts and funeral expenses be paid first out of my estate and the expenses of my last sickness.
"Item 2.
"I give and bequeath to my sister Hester Jobe Seeley the sum of One Dollar, to my brother James M. Jobe the sum of One Dollar to be paid out of my estate.
"Item 3.
"I give and bequeath to my wife Sarah M. Jobe the property where we live situate in Neosho, Missouri, consisting of a four room house and three lots, as her absolute property, and for use and benefit and she may dispose of same if she desires to do so and the household goods therein.
"Item 4.
"I give and devise to Jerusha Ralston the sum of $500.00 Five Hundred and no/100 in cash and the sum of Fifty Dollars in cash for taking care of me during my last sickness to be paid out of my estate, this $500.00 to be used in paying off a debt she owes on her home, and shall be paid as soon as possible after my death.
"Item 5.
"I give and bequeath all the remainder of my personal property of whatever nature and kind, that is the income from same, consisting of money in bonds to my wife Sarah M. Jobe, Amanda C. Dodds and Jerusha C. Ralston. The income shall be paid to them in equal shares one third each of said income, by the executor and trustee hereinafter named, annually, and the remainder of said income after the death of my said wife shall be paid to said Amanda C. Dodds and Jerusha Ralston, annually, but in the case of the death of either then survivor or survivors of them shall receive amount of said income annually so long as they live, and the remainder after the death of said named then all shall go to the trustees of Odd Fellows Lodge No. 85 of Neosho, Mo. for the purpose of building a hospital in the City of Neosho, Mo. They shall first raise a like amount of money that they receive from me before they shall receive the amount or remainder left them by me and said hospital shall cost not less than $25,000.00 said bonds shall not be cashed until the death of my wife.
"Item 6.
"I hereby appoint as executors and trustees of my last will and testament, they to give bond in the performance of their duties and request that W.E. SIMS act as executor and M.T. Rice act as trustee, and that they see after the bequest to the I.O.O.F. Lodge and that they be required to raise a like amount as left them as shown by the executor and trustee named.
"Item 7.
"In Witness whereof I have hereunto set my hand and seal this 21 day of February, 1924.
"Simeon S. Jobe.
"The foregoing instrument was on the above date consisting of two sheets of paper, was signed sealed and delivered by said Simeon S. Jobe to be his last Will and Testament and in the presence of us and at his request and in his presence and in the presence of each other, have subscribed our names as witnesses.
"J.P. Wolfenbarger, Neosho, Mo. "W.M. Lamphier, Neosho, Mo.
"FILED: AUG 7, 1945 Glenn Morgan Circuit Clerk, Newton County, Mo."
It is only Item 5 of the will that is really in dispute in this case. It appears that plaintiff was successor trustee and not the trustee originally named in the will.
The law suit really seems to have been, or to have become, a suit between the trustees of said lodge and other persons unknown when the petition was filed. The only concern of Mr. Rice, the trustee, was to ascertain to whom he could safely pay the money then in his hands as such trustee, and thereafter could be discharged.
We need not concern ourselves about what took place in the past, for all the persons named in the will have long since passed away.
A separate answer was filed by persons claiming to have been the heirs, etc., of Sarah M. Jobe, the wife of testator, and herself long ago deceased; but, as such alleged heirs, etc., did not appeal from the judgment below, we need notice their claims no further, and such defendants will not be referred to again.
The real controversy is between the trustees of said lodge and those persons claiming to be the heirs, etc., of testator himself, and, as appears largely from the evidence, through a brother and sister of testator, to-wit, James M. Jobe and Hester Jobe Seeley.
The trustees of the lodge contended that they had complied with the will of the testator by depositing with the clerk of the court a sum equivalent to the remainder of said estate in plaintiff's hands, without showing that such lodge or its trustees had erected, or could erect, a $25,000.00 hospital at Neosho, Missouri, as specified in such will.
The persons claiming to be the heirs, etc., of Simeon S. Jobe, the testator, contended that the defendant trustees had not complied with said will, merely by depositing with the clerk of the trial court an amount equivalent to that left in said estate and in the hands of the plaintiff. They contended that the trustees of said lodge must have gone further and must have erected, or cause to have been erected, the hospital mentioned in such will; and therefore that the balance of the estate reverted to such persons, as the heirs, etc., of Simeon S. Jobe, the testator.
It will be well, at this time, to set out in full the judgment of the trial court, as it appears in the transcript, to-wit:
"Judgment and decree finding defendant trustees of IOOF Lodge No. 85, to be entitled to the balance on hands held by present trustee, L.D. Rice in the sum of $5252.95, less attorney fee in the sum of $250.00 and cost and L.D. Rice ordered to pay said balance to the clerk of this Court, and upon payment of said amount to be discharged as trustee of said estate. Clerk ordered to pay to defendant trustees of said lodge the amount left upon condition they enter into bond in the sum of $5000 conditioned that they will use said funds for the purpose set out in the will in the building and construction of a hospital costing not less than $25000; that said trustees are appointed by the court as trustees to receive said amount and to properly carry out the purpose of the charitable trust under the provisions of the will, and to properly account for the funds; to file their annual report as trustees until they are finally discharged by order of court."
The trustees of said lodge appear to be satisfied with the judgment and decree "finding defendant trustees of IOOF Lodge No. 85, to be entitled to the balance on hands held by present trustee, L.D. Rice in the sum of $5252.95," but complain of that part of the judgment and decree which provided for an attorney's fee of $250.00 for plaintiff, together with the costs of suit, and the condition that such trustees of said lodge should enter into a $5000 bond "conditioned that they will use said funds for the purpose set out in the will in the building and construction of a hospital costing not less than $25000." Such trustee also complain of the requirements in said judgment that the trustees of said lodge should be trustees of said court, and make an annual report to the trial court, "until they are finally discharged by order of court."
In short, without setting out the pleadings or motions for a new trial, it is the contention of those persons claiming to be heirs of Simeon S. Jobe, the testator, that said lodge, or its trustees, have not complied with such will and that the balance of the estate reverts to them as such heirs, etc. Such claim was disallowed by the trial court and such persons have appealed, without such appellants conceding that the trustees of said lodge should have a reasonable time to build such hospital, as evidently found by the trial judge.
The trustees of the lodge claimed that they have complied with the will solely by depositing in court an amount equivalent to that left in said estate, and that the trial court was not authorized to make the judgment that it did, and make such award on the conditions stated in the judgment.
We will first determine whether or not the trial court has made a proper disposition of the funds in the hands of plaintiff Rice, and, if so, the appeal of the persons claiming the balance of the estate as heirs, etc., of the testator, because of such failure to comply with the terms of the said will, and by reversion, must be disallowed.
In Item 5 of the will, testator provided that, after the death of the named persons (concerning which deaths there is no dispute) "all shall go to the trustees of Odd Fellows Lodge No. 85 of Neosho, Missouri," for the purpose of building a hospital in the City of Neosho, Mo." (Italics ours.)
Standing alone, the first part of such provision might seem to have required the lodge, or the trustees thereof, only to raise an amount equivalent to that left in the estate. But that language, and in the same sentence, was followed by another provision, to-wit, "for the purpose of building a hospital in the City of Neosho, Mo."
All provisions of the will must be construed. While the trial judge made the trustees of said lodge trustees of the court, "to properly carry out the purpose of the charitable trust under the provisions of the will," (emphasis ours) the will not not devote the remaining funds to charity generally; but such remainder was, we feel, given to the lodge solely for the construction of a hospital.
This provision would seem to require the lodge, or its trustees, also to erect a hospital with the money realized from testator's estate. Probably the renunciation of the will by testator's widow, as shown by the evidence, took a greater portion of testator's estate than he contemplated, when he made the will, and testator may then have thought that the amount left in the estate would be sufficient to build such hospital, without assistance from any other source, except the lodge itself.
It would seem that the requirement that said trustees should raise "a like amount" would have been entirely unnecessary, if testator meant that the trustees of said lodge could receive whatever was left in such estate before they built or contracted for a hospital in Neosho. Missouri, costing not less than $25,000.
The least that we can say from all the language used by testator was whatever the trustees of said lodge received from said estate, with an equivalent amount raised by said lodge, should be applied on a hospital in Neosho, Missouri, to cost not less than $25,000. Such remainder was not a gift to charity generally, but was for a specific purpose.
This conclusion would seem entirely to dispose of the conention of the alleged heirs, etc., of Simeon S. Jobe, that said legacy had lapsed, without giving the lodge a reasonable time to construct said hospital, and would necessarily result in our holding that such heirs, etc., would have no claim to the remainder of said estate, before such reasonable time, to be fixed by the trial court, has elapsed.
It seems to us that it is the proper construction of said will to say that what the trustees of said lodge had to do to get such remainder of such estate in their hands would be, not only to raise an amount equivalent to such remainder, but also to apply that amount on a hospital, within a reasonable time. To receive what is left of such estate does not end the obligation of said lodge, or its trustees. They must not only raise an amount equivalent to the remainder of testator's estate, but they must see that such remainder and an equal amount are applied to the erection of a hospital in Neosho, Missouri, to cost not less than $25,000.
Upon the building, or at the very least the assumed building, of such hospital, the trustees of said lodge will be entitled to the remainder of testator's estate. If said trustees do not care, or are unable, to apply such remainder to such hospital, the lodge and its trustees have no right to receive the remainder of testator's estate, and such remainder should stay, as an undisposed of part of testator's estate, subject to the then claim of testator's heirs and the later order of the trial court.
Becoming satisfied that the lodge, or its trustees, never, or within a reasonable time, would erect a hospital, costing not less than $25,000, some one or some court should have the right to say that such legacy to said lodge has lapsed and such remainder should then go to the heirs, etc., of Simeon S. Jobe. Until the remainder of testator's estate, matched by the equivalent amount to be raised by said lodge, or its trustees, is applied to such hospital, the trustees of said lodge would have no right whatever to receive such remainder. Who is more competent to require that such remainder be so applied, than the trial judge?
The trial court required, as a condition to such trustees of said lodge receiving such remainder, that they should give a bond in the sum of $5,000.00 (about equal to what they would have received from the estate) to erect such hospital costing not less than $25,000.00. In the absence of such bond, there would have been nothing to prevent the lodge, or its trustees, from receiving such remainder, and, in the future, failing to construct such hospital. We do not mean to say that the lodge, or its trustees, would so fail; but the circuit court and this Court must protect the rights of the heirs of the estate of Simeon S. Jobe, deceased, in case the use of such remainder, as contemplated by the testator, should, for any reason, not be made within a reasonable time. This is for the trial court to determine.
As we understand the record, the attorney for plaintiff was allowed the sum of $250.00, and the trustees of the lodge were required to pay the costs of the suit, both payable out of the remainder of such estate in plaintiff's hands. Such allowances seems to us to have been entirely reasonable, when it is considered that the plaintiff had some doubt in his mind as to the proper disposition of such remainder and felt that he should file this suit and get the direction of the trial court as to such disposition, rather than to rely upon his own judgment. The value of the drafting of the original petition and his appearance in court was a matter largely in the discretion of the trial judge, and we feel that such allowance should not be disturbed. We cannot say that the previous allowance to the plaintiff trustee or his attorney was excessive. We have no means of knowing what such allowance was for. It may have been well earned. The ruling as to costs was also for the circuit judge, for the same reasons, and should not be disturbed.
The trustees of the lodge complain bitterly that they were required to give bond, not only for the money received, but for the erection of a hospital to cost not less than $25,000.00. Such trustees and said lodge have this matter largely within their own hands. The lodge and its trustees can dispense with the premium on such bond at any time they come into court and satisfy the trial judge that they have applied the remainder of said estate in the manner plainly intended by testator, or state that they cannot do so. Unless they apply the remainder of said estate in the manner intended by testator, they have no right to receive any part of such remainder. The trial judge very properly required such bond to protect the heirs, etc., of Simeon S. Jobe, deceased, in case such remainder should ever revert to them.
Nor can the trustees of said lodge properly complain of the action of the trial court in making them trustees of the court and requiring reports from them, from time to time, as to the disposition of the funds received from testator's estate.
It is our conclusion that the appeal of the alleged heirs of Simeon S. Jobe, the testator, was premature and that such appeal should be dismissed, for that reason alone. If the trustees of the lodge fail to use the remainder of such estate in the manner intended by testator, such remainder should then revert to the estate of testator. It will be time enough for the heirs, etc., of Simeon S. Jobe, deceased, to assert any claims they may then have. We feel that, at this time, they have no proper claim and their intervening petition and appeal should be dismissed, on the ground that their present claim is premature.
We have carefully read the brief of the trustees of the lodge. The case of Lyter v. Vestal, 196 S.W.2d 769, decided by the Supreme Court September 9, 1946, and not yet officially reported, merely holds that, "the prime rule of construction (of a will) is that a court, without attempting to make a new will or an equitable distribution of the estate, must confine its endeavors to ascertaining the real intent of the testator." We are utterly unable to see how that case detracts in any manner from what we have previously said. Taking the will of Simeon S. Jobe, as a whole, we are unable to see how any other conclusion can be reached, other than that he intended to have the lodge receive the remainder of his estate, only on the condition that such remainder should be used for the construction of a hospital. It was given to the lodge for no other purpose. We would certainly violate the rule laid down in Lyter v. Vestal, supra, if we gave the will any other construction. The same may be said of Brookings v. Mississippi Valley Trust Co., 196 S.W.2d 775, which also has been carefully studied.
While the trial judge said in his findings of fact, that "the court is of the opinion it would be justified in rendering a judgment on the pleadings," there is nothing in the record to show that any other judgment than the one given, would have been rendered, even on the pleadings. The will was set out in full in plaintiff's petition, but such will, when properly construed, did not give the trustees of the lodge the right to receive the remainder of the estate, except by depositing in court an equivalent sum toward a hospital and thereupon to build a hospital. The judgment arrived at was solely based on construction of the will, and it makes little difference whether the motion for judgment on the pleadings was sustained or not. If the trial judge had looked at the will only, as set out in the petition, we cannot say that any different judgment would have been rendered. We must disallow the contention of the trustees of said lodge that their motion for judgment on the pleadings should have been sustained or that the trial court committed reversible error in refusing such motion. [Loveland v. Davenport, 188 S.W.2d 850, l.c. 852.]
We are unable to understand why appellant trustees of the lodge cited Section 3528, Revised Statute Missouri 1939. That section authorizes the circuit court to require bond of trustees, "unless the will, . . . . creating such trust, shall in express terms, dispense with security." The trial court well found the trustees of the lodge to be trustees of the court, in order to see that the terms of the will were carried out, and properly found that the remainder of the estate should not be turned over to the trustees of the lodge, unless such remainder was applied to the erection of a hospital; and, because such will did not, in terms, express or otherwise, "dispense with security" such circuit court had the right — and we might well say, the duty — to require such trustees of said lodge to give security before turning over the remainder of said estate to them as trustees of the court.
Because plaintiff, or intervening plaintiffs, did not ask for such security, under Section 3529, Revised Statutes Missouri 1939, is no reason why the circuit court, on its own motion, should not require such security. Nor is there any basis for holding the action of the trial court invalid under Sections 3530 and 3531, Revised Statutes Missouri 1939, all of which are cited by appellant trustees of said lodge. Nor is there anything in Yore v. Crow, 90 Mo. App. 562, l.c. 565, to the contrary.
Appellant trustees of the lodge cited a number of cases on the proposition that attorneys' fees and costs should not be allowed, when "litigants have attempted to disturb the trust estate." In the first place, the trial court has not found that a charitable trust generally was created as to the remainder of testator's estate. The trial court found, and we think rightly so, that the remainder of such estate was given to the lodge only on the condition that such remainder be used toward a hospital. The trial court evidently found that such gift was not a gift absolutely, but was conditional. The plaintiff was not seeking to disturb such trust, but to protect himself by having the trial court tell him how to dispose of such remainder, and, in so doing, rightly appealed to the circuit court.
We do not believe that it can rightly be maintained that the gift of the remainder of testator's estate was for charity alone, or generally, as contended for by appellant trustees, although the trial court may have said it constituted a charitable trust. The gift of testator was not for general charity, but was for a specific purpose — the erection of a hospital. The gift was not for the general purpose of hospitalization, but it was for the erection of a particular hospital building, and the devise to the trustees of the lodge was not a charitable trust generally, and the trial court had the right to require a bond, in order to see that the gift was so applied. This renders valueless the citation of the cases of Buchanan v. Kennard, 234 Mo. 117, and Catron v. Scarritt Collegiate Institute, 264 Mo. 713, which we have examined.
The first paragraph of the syllabus in Catron v. Scarritt Collegiate Institute, supra, is as follows:
"Where no condition subsequent was annexed to the grant, and the deed in its entirety and the circumstances attending its execution demonstrate that no reversion was intended upon the subsequent happening of a lawful condition, a deed of gift vesting the title in fee cannot be uprooted, and the fee will not revert to the grantor or his heirs."
The gift here was not unconditional. Nothing which we have held, is anywise contrary to the Catron case, or any other case, which we have examined.
We could go on indefinitely to show that all of the cases cited by appellant trustees do not apply to the facts in this case, which, we think, the trial court has so fully and correctly determined. Those cases are all bottomed on the creation in the will or other instrument of a charitable trust generally, and we do not think that testator created that sort of trust by the language he used, and that, if the remainder of his estate is not so used within a reasonable time, it should revert to his estate.
The appeal of the heirs of testator is dismissed and the judgment of the trial court, as to the trustees of the lodge, is affirmed; but, because said court may be called upon later to determine whether or not the lodge or its trustees have complied with such will, the cause is ramended to the circuit court, with instructions to that court to retain jurisdiction of the case and to make such orders in such case, from time to time, as it may then be advised.
It is so ordered. Fulbright, P.J., and Vandeventer, J., concur.