Board of Trustees of Methodist Episcopal Church, South v. May

GRAVES, J. This is an action by plaintiff in the circuit court of Jackson county, Missouri, by which it seeks, first, to have the following clause of a will executed by Elizabeth A. Shrader, deceased, construed, said clause being: “My Kansas City property on Olive street, No. 705 and 1489, will a portion be for the fitting up our graves be left in the hands of Wash Adams for that purpose; the remainder to be given to the Methodist E*. Church, South, and missionary cause.” And secondly, to have said property sold and the proceeds applied to the payment of a mortgage of $700 thereon, and $500 to Wash Adams as trustee,, and the remainder of said proceeds to this plaintiff for missionary purposes. Defendants Stella Timberlake May and John I. May by answer aver that they have no interest in the suit and ask to be discharged with their costs. Defendant John G. Paxton, guardian ad litem for Charles Timberlake, averred the ownership of the property to be in Charles Timberlake as the heir at law of Elizabeth A. Shrader, and likewise asked the court to so construe the will and so declare, and denied all other matters set out in the petition. Defendants S. R. Shrader and Wash Adams by joint answer practically admit all the matters and things set out in the petition except the construction of the will contended for — 366 — by plaintiff and aver that said will should be construed and the rights of the respective parties determined. Defendant Finch answered, first, by way of general denial, and then by an admission that the deceased, Elizabeth A. Shrader, made and executed a mortgage of which he was the holder in the sum of $700' and accrued interest, covering the property alleged to be involved in this litigation, which said mortgage is a first lien, and praying the court in the event of a sale to have his debt first fully paid and satisfied. The trial court-found said clause of the will to be void and too uncertain and indefinite to be enforced and denied the prayer of plaintiff’s petition asking for the sale of said property and gave judgment for defendants against plaintiff for costs. Evidence : Certified copy of the will was introduced by plaintiff containing the clause hereinabove set forth. Plaintiff then introduced its charter, showing it to be a Tennessee corporation with power to receive and hold contributions of property of the character mentioned in this will under the construction thereof contended for by the plaintiff herein. There was also introduced certain sections of the Discipline of the Methodist Episcopal Church, South. The age of the defendant S. R. Shrader was shown to be eighty-one years. It was also shown that Mrs. Shrader did not in fact own the property at No. 705 and No. 1489 on Olive Street, but that she did own two- tracts of land on Olive street, at No. 1705 and-No. 1914, respectively, and had never owned any other tracts of land on Olive street in Kansas City, save and except these two tracts, which she owned at the date of making the will as well as at the date of her death. The deed of trust to Finch was introduced. The evidence further disclosed that neither tract of land was of very great value. By oversight, or otherwise, the evidence fails to. disclose that Mrs. Shrader was a member of the Methodist — 367 — Church, South. Motion for new trial was filed and overruled and plaintiff duly perfected its appeal. Such portions of the testimony as may he necessary for the disposition of the case will he more fully investigated in the course of the opinion. OPINION. As we gather it from the record the following contentions were made by respondent in the circuit court: (1), that plaintiff had no right to maintain this suit under the terms of the will; (2), that the description of the property in the will, involved in this case, is not property which was owned by the decedent and that the property now sought to be brought in under the terms of the will cannot be subjected to its terms, even if the will is in all parts valid and enforceable; (3), that the clause of the will hereinabove set out in the statement of facts, and under which the plaintiff claims, is too indefinite and uncertain to be enforced by the courts and for that reason invalid; (4), that the plaintiff could not introduce in evidence the official book of rules and discipline of the Methodist Episcopal Church, South, to-wit, “to show the authority of this corporation [meaning plaintiff] to act for the Church.” The court excluded the rules last mentioned and also sustained the contention of respondent as to contention three above. Contention four was sustained during the trial and contention three by the express terms of the judgment. We are not further enlightened as to the views of the trial judge upon the first and second contentions. By brief of respondent the first and second contentions do not seem to be seriously urged, so that we will take up the third and fourth contentions, considering the rules and discipline offered as if admitted. I. The description given in the will is, ‘ ‘ My Kansas City property on Olive street, No. 705 and 1489.” — 368 — The property sought to be charged, by this suit, by the disposing part, if any, of the will is Nos. 1705 and 1914 on Olive street, in Kansas City, Missouri. The evidence aliunde shows that decedent had no property in Kansas City except upon Olive street, and no property upon that street except at the numbers last mentioned, to-wit, Nos. 1705 and 1914, being the two tracts of land described by metes and bounds in the petition. We are not disposed to agree with respondent in his contention as to the insufficiency of this description. We have here a general description of, “My Kansas City property on' Olive street, ’ ’ followed by a particular description, “Nos. 705 and 1489.” In our judgment we can Reject this particular description and rely upon the general description. This will not only appears to dispose of all the testator’s property, but also specifically says: ‘ ‘ My Kansas City property on Olive street.” The testator could have had in mind only such property as she owned on Olive street in Kansas City, in so far as the attempted devise in the contested clause of this will is concerned. As to the sufficiency of this description under the evidence in this case we are thoroughly satisfied under the learned discussion of Sherwood, J., in Thomson v. Thomson, 115 Mo. 56; and of Mr. Justice Bradley in Patch v. White, 117 U. S. 210. In our judgment the doctrine of these cases is sufficient to upohld this description under the oral evidence. II. We reach now the vital question of this case: Is the clause in this will, “The remainder to be given to the Methodist E. Church, South, and missionary cause,” too uncertain and indefinite to be enforced, and for that reason void and of no effect? The trial court held that both clauses, “My Kansas City property on Olive street, Nos. 705 and 1469, will a portion be for.the fitting up of our graves, be left in the hands of Wash Adams for that purpose,” and “the re — 369 — mainder to be given to tbe Methodist E. Church, South, and missionary cause,” were too indefinite and uncertain to' be enforced and therefore null and void and of no effect, “without prejudice to the remaining provisions of said will.” Was this construction right? The first clause and the adverse construction thereof affects more particularly the defendant Wash Adams, but he abides the judgment of the trial court and perfects no appeal, so that as an issuable question here we only have for our consideration the clause in judgment, “The remainder to be given to the Methodist E. Church, South, and missionary cause.” We confront at the outset two well-recognized rules in the law: First, courts cannot make wills for parties. Second, wills should be so construed as to carry out the intention of the parties. In the latter we are not limited to the four corners of the instrument, but may be enlightened by evidence, aliunde, as to the conditions and surroundings of the testator, in determining the real intention of the party making the will. But even when guided by these rules the court may by invoking, and without doing violence to, any of the rules of construction in cases of wills, find a condition in the devise which, for vagueness and indefiniteness, cannot be enforced. Such appears to us to be the real question in this case. In the clause under consideration the- testatrix in plain English says she wants the remainder to go to “the Methodist E.. Church, South, and missionary cause.” Had she said “to the Methodist E. Church, South, for missionary cause,” there would be less trouble, for in that instance we would have a trustee named in the will and an indication of how that trustee should apply and use the fund, rather indefinitely stated however, for even in this instance the trustee would not be advised as to what particular “missionary cause” under the control of the trustee, — 370 — or being at tbe time prosecuted by the trustee, was meant. "Whether to foreign missions or home missions would be a question not decided by the will. But it is useless to theorize on the supposed case, unless we can substitute the word “for” instead of the word “and” in this will. Can we do that under the evidence in this record. The testator had a right to give a part of the remainder to the church and another part to missionary causes, and to a missionary cause separate and apart from any missionary cause under the control of the church named. Conceding that she was a member of the Methodist E. Church, South, and was a religious woman, which appears only by inference in this record, yet it would not be unreasonable to suppose that she intended to give a part of the property to the church of her choice, and another part to the “missionary cause” as prosecuted not only by her own church, but by all the churches, including her own. We know that the cause of missions is one fostered by all the churches and it is not unreasonable to conclude that a church member, especially interested in missions, would, in the dis.position of her property, first think of her church, and then of the “missionary cause” in the broad sense. She at least had the right to so say in her will, and by the use of the word “and” she has so said. It is not the province of the court to make a will, nor to change the ordinary meaning of the words used therein. With the word “and” in this clause we have two distinct beneficiaries. The testatrix had the right so to designate, and it is not for the courts to change language which is unambiguous, plain and easy of construction. In this case to substitute the word “for” in place of the word “and” would be the making of a new will by the court, a thing which we cannot do, and a proposition upon which the citation of authority is unnecessary. We are therefore forced to pass upon the clause — 371 — in this will as it is written. We have no hesitancy in saying that the trial court was correct in holding that it is void and of no effect on the ground of being indefinite and uncertain. What particular South Methodist Church is not named, nor is the particular field of missions named; but even if it could be said that the parent body of the South Methodist Church is meant, yet, we meet vagueness, uncertainty, and indefiniteness in the remainder of the clause, ‘ ‘ and missionary cause. ’ ’ The conclusion of the trial court finds ample authority in the following cases: Moran v. Moran, 104 Iowa 216, 73 N. W. l. c. 620; Crimes’ Exrs. v. Harmon, 35 Ind. 198; Coleman v. O’Leary’s Exr. (Ky.), 70 S. W. 1068; Nolte v. Meyer, 79 Tex. 351, 15 S. W. 276; Pack v. Shanklin, 43 W. Va. 304, 27 S. E. 389; McHugh v. McCole, 97 Wis. 166, 72 N. W. 631. These cases all discuss very fully similar provisions in wills and in all they are held void. The principal case relied upon by appellant is the case of Kinney v. Kinney’s Exr., 86 Ky. 610, 6 S. W. 593. That case is clearly distinguishable from the one at bar. The clause there was, “I do will and bequeath to the Methodist Episcopal Church, South, to be applied to foreign missions, all of my property, real and personal, after the payment of my just debts, for their use and benefit exclusively.” Were we permitted to read in the present will the word “for” in place of the word “and” as we have it, the cases would be somewhat parallel. But were we permitted to do this, and did do it, there is in the Kinney case, supra, a specific designation of what branch of the “missionary cause” is desired, while in the case at bar we would still be in doubt where the fund should go, whether to foreign or home missions. Wills must be definite enough for the courts to take hold of them and enforce them, and such is not the. case in the clause of the will under consideration. We, therefore, hold that the following — 372 — clause in this will is void and of no effect, to-wit: “the remainder to he given to the Methodist E. Church, South, and missionary cause.” As to the preceding clause we express no opinion, for the reason that the defendant Wash Adams,'who was the party interested therein, has abided the judgment of the trial court and has tahen no appeal. For the reasons aforesaid, the judgment should be and is affirmed. All concur.