BOGDANOVICH v. BOGDANOVICH

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No. 41684.

Judges

[696] WESTHUES, C.

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BRANISLAVA BOGDANOVICH, also known as BRANKA BOGDANOVICH, SVETOZAR BOGDANOVICH, also known as LAWRENCE BOGDANOVICH, and VELEMIR BOGDANOVICH, also known as JOHN BOGDANOVICH, a minor, by ARNOLD J. WILLMANN, Next Friend, Appellants, v. GJURO BOGDANOVICH, also known as JURO BOGDANOVICH, Executor of the Estate of LUKA J. BOGDANOVICH, also known as LOUIS J. BOGDANOVICH, Deceased, MARKO BOGDANOVICH, Trustee, THE BANK OF THE CITY OF NEVESINJE, YUGOSLAVIA, THE MAYOR OF THE VILLAGE OF NEVESINJE, YUGOSLAVIA, Alternate Trustees, Respondents.

James J. McMullen for appellants.

(1) In equity cases the rule requires a full presentation of the evidence to this court on appeal, for the reason that in such cases the trial here is in effect a trial de novo. Gibson v. Shull, 158 S.W. 322. (2) If a bill should contain certain allegations which show that persons who otherwise would ordinarily be proper parties have no interest in the controversy, and have no title to and make no claim to any interest, such allegations in the frame of the bill, if well founded, will dispense with the necessity of their being made parties. Story, Eq. P. (1892, 10th Ed.), sec. 214a. (3) Acceptance of a trust is necessary to the vesting of title in the trustee. Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035. (4) The court within which trust is being administered has full power to control and under statute can require the trustee to furnish the proper bond. The power to remove a trustee appointed by a will or to control his actions is exercised as an inherent power of the court and not derived from the statutes. Holman v. Renaud, 125 S.W. 843. (5) In matters of trust estates, in matters of appointment of trustees to succeed, when vacancy occurs, and in matters relating to administration of trusts the jurisdiction is so clearly vested in the circuit court of the county, in which a will disposing of an estate has been approved or recorded, as to preclude a question to the contrary. Cell v. Robinson, 79 S.W.2d 489. (6) It is essential to a private trust that there be a cestui que trust or beneficiary, which must be a person or legal entity, distinct from the trustee. 65 C.J., sec. 24, p. 233. (7) If a trust for a specific purpose fails by the failure of the purpose, the property reverts to the donor or his heirs. If the gift is made upon a trust, and the trust is insufficiently or ineffectually declared, as, if it is too indefinite, vague, and uncertain to be carried into effect, it will result to the settlor, his heirs or representatives. 1 Perry on Trusts and Trustees (6th Ed.), secs. 157, 159. (8) Word "trustee" following grantee's name in deed is not merely description personae, but evidences existence of trust. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022. (9) The doctrine is universal that a trustee takes exactly that quantity of interest, whatever it may be, which the purpose of the trust and its proper execution may require, and no more. Young v. Hyde, 255 Mo. 496, 164 S.W. 228. (10) The deed here should therefore be regarded as investing the grantee merely with the powers of an agent, and, as the grant was not coupled with an interest nor supported by an independent consideration, such powers would be revocable at the pleasure of the grantor. Angle v. Marshall, 44 W. Va. 671, 47 S.E. 882; Stephens v. Moore, 298 Mo. 215, 249 S.W. 601. (11) That trust, mere existence of which is evidenced by deed to trustee, fails of administration for lack of competent evidence of its terms and intended beneficiary, does not give grantee fee title, where grantor's intention that grantee shall not take beneficial interest in property conveyed appears from deed, but resulting trust arises for benefit of original grantor or his heirs or next of kin. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. l.c. 1022. (12) The residuary clause of a will fails where no beneficiary is named therein, and there is no person competent to take as such beneficiary. Lehnhoff v. Theine, 184 Mo. 346. (13) Supervision of administration of trust, mere existence of which is evidenced by deed, to trustee, is within exclusive jurisdiction of court of chancery, though there is no competent evidence of its nature, terms or intended beneficiary. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022. (14) Without competent evidence of nature, terms, and intended beneficiary of trust, mere existence of which is evidenced by deed to trustee, court of chancery cannot direct or supervise proper administration thereof, and trust fails for indefiniteness and uncertainty. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022. (15) Where a residuary estate is devised to the executor in trust, but the testator fails to designate the beneficiaries of the trust, it will be treated as intestate property, and disposed of as if no will had been made. Thomas v. Anderson, 245 F. 642, 158 C.C.A. 70. (16) An express trust is one which defines and limits the uses and purposes to which certain property shall be devoted, and defines the duties of the trustee as to control, management, and disposition. Heil v. Heil, 184 Mo. 665, 84 S.W. 45. (17) A bequest made to certain trustees for the benefit of the New Jerusalem Church as they deem best. The court held the purpose to be wholly indefinite, the discretion of the trustees being unlimited, except that the fund must be for the benefit of the church named, and hence unenforceable in equity and void. Jones v. Patterson, 271 Mo. 1, 195 S.W. 1006, from the original opinion of Fifield v. Van Wyck, 94 Va. 557, 27 S.E. 446, 64 Am. St. Rep. 745. (18) As the selection of the objects of the trust was delegated absolutely to the trustees, there is no person or corporation who could demand any part of the estate or maintain an action to compel the trustees to execute the power in their favor. This is the fatal defect of the will. The will of the trustees is made controlling and not the will of the testator. Samuel J. Tilden will trust case reported in 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am. St. Rep. 487. Cited by the Supreme Court in the opinion of Jones v. Patterson, 271 Mo. 1, 195 S.W. 1006. (19) If the settlement has failed for want of a sufficient conveyance when made, a court of equity has no authority to supply that defect by ordering a conveyance, or convert the imperfect settlement or gift into a declaration of trust, merely on account of such imperfection. As the donor left the transaction, so the court will leave it. Goodman v. Crowley, 161 Mo. 657, 61 S.W. 850. (20) A court of equity may declare, construe, and administer trusts, but it cannot create one. The grantor in the deed under consideration might have declared a trust but certainly she did not. There is nothing in the facts of the case to authorize a court to do so. "Ex nihilo nibil fit." Knapp v. Publishers, 127 Mo. 53, 29 S.W. 885; Hunter v. Briggs, 254 Mo. l.c. 62, 162 S.W. 204; McConnell v. Deal, 296 Mo. 275, 246 S.W. 594. (21) In the case of Guitar v. Gordon, 17 Mo. 408, the court held that the heir at law will not be disinherited nor forfeiture of an estate decreed, except upon testamentary words free from doubt. (22) In the case of Evans v. Ranken, reported in 44 S.W.2d 644, this court followed an English case citing the case of Lee v. Lee, 1 Drewry Smale, 85, 29 L.J. Ch. 788, 6 Jur. N.S. 621, 8 W.R. 443. In that case the court held that when a question arises whether a certain individual who comes within the description ought or ought not to be excluded, it is not sufficient, in order to exclude him, to show an absence of a clear intention to include him; he must show a clear and unambiguous indication of an intention to exclude him.

Edwards, Metcalfe Strong and Thomas S. Buban for respondent Gjuro Bogdanovich, etc., Executor.

(1) Promotion of education is a charitable purpose or function. Sappington v. Sappington School Fund, 123 Mo. 32, 27 S.W. 356; Missouri Historical Society v. Academy of Science, 94 Mo. 459, 8 S.W. 346; Crow v. Clay County, 196 Mo. 234, 95 S.W. 369; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571. (2) A bequest in trust to a state or public school creates a charitable trust with a definite beneficiary even though the details of administration are left to the trustee. 2 Bogert, Trusts and Trustees, sec. 374, p. 1166; Russell v. Allen, 107 U.S. 163, 27 L.Ed. 397; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150. (3) In dealing with charitable trusts, courts of equity apply the doctrine of cy pres. Missouri Historical Society v. Academy of Science, 94 Mo. 459, 8 S.W. 346; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571; Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327. (4) Either a state or a nation or a foreign organization can be a beneficiary under a will or a trust. Miss. Valley Tr. Co. v. Ruhland, 222 S.W.2d 750; In re Rohn's Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877. (5) The essential requisites of a charitable trust are a definite subject, a certain object, and the terms of the trust be sufficiently declared. Jones v. Jones, 223 Mo. 424, 123 S.W. 29, L.R.A. (N.S.) 424; Chambers v. St. Louis, 29 Mo. 543; Altman v. McCutchen, 210 S.W.2d 63. (6) There is no prohibition against an individual who is a nonresident from acting as a trustee under a testamentary trust. Sec. 3526, R.S. 1939; State Savings Loan Trust Co. v. Swimmer, 208 Mo. 503, 236 S.W. 1057; 10 Am. Jur., sec. 114, pp. 667, 668. (7) A will is valid if testator merely names his child therein and bequeaths them nothing. Sec. 526, R.S. 1939; Fitzsimmons v. Quinn, 282 S.W. 37; Lastofka v. Lastofka, 99 S.W.2d 46. (8) Trustee, Marko Bogdanovich, and the alternate trustee were entitled to intervene in this action. Laws 1943, sec. 21 (a) and (b), p. 363.

Bakewell, Bakewell Cramer for respondents-intervenors.

(1) The essentials of a charitable trust are a definite subject, a certain object, and the term of the trust be sufficiently declared. Jones v. Jones, 223 Mo. 424, 123 S.W. 29, L.R.A. (N.S.) 424; Chambers v. City of St. Louis, 29 Mo. 543; Altman v. McCutchen, 210 S.W.2d 63. (2) A bequest in trust to a state or public school creates a charitable trust with a definite beneficiary even though the details of administration are left to the trustee. Bogert, Trusts Trustees, sec. 1166; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150. (3) A trust may be created for the benefit of . . . a school. 65 C.J., sec. 24, p. 234; 2 Bogert, Trusts and Trustees, p. 1164, sec. 374; Burrier v. Jones, 92 S.W.2d 885. (4) 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." Newton v. Newton Burial Park, 34 S.W.2d 121; 10 Am. Jur., p. 589, sec. 6. (5) Charitable trusts include erection and maintenance of public buildings. 3 Page on Wills (Life Ed.), p. 597, sec. 1234; 2 Bogert, Trusts and Trustees, p. 1201, sec. 378, 50 A.L.R. 593. (6) The statute for pretermitted children only applies as to children "not named or provided for in such will." Mo. Rev. Stat. Ann., Chap. 1, Art. 20, Sec. 526; Hackensmith v. Slusher, 26 Mo. 237; Pounds v. Dale, 48 Mo. 270; Beck v. Metz, 25 Mo. 70; Woods v. Drake, 37 S.W. 109; Fitzsimmons v. Quinn, 282 S.W. 27; Boucher v. Lizotte, 161 A. 213. (7) Even if there had been no trustee named in the will, the trust would not be permitted to fail for want of a trustee. Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035; Hitch v. Stonebraker, 125 Mo. 128, 28 S.W. 443. (8) The charitable trust is adequate, definite and certain. Bogert, Trusts and Trustees, sec. 1166; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150; Charities, 14 C.J.S., p. 453, sec. 20; 3 Page on Wills (Life Ed.), p. 562, sec. 1215; Harger v. Barrett, 5 S.W.2d 1100; Starks v. Lincoln, 291 S.W. 132; Russell v. Allen, 107 U.S. 163. (9) The trustees named in the will have the right to intervene. Sec. 847.21, Mo. Civil Code, Laws 1943, sec. 21. (10) This section not only gives an unconditional right to intervene, but should be liberally construed. Duggan v. Kirkwood, 208 S.W.2d 257. (11) A nonresident individual may act as trustee. Sec. 3526, R.S. 1939, does not disqualify nonresident individual trustees. In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877; Sec. 3526, R.S. 1939; 10 Am. Jur., sec. 12, p. 593. (12) All devisees under a will are necessary parties to construe it. Parke v. Smith, 211 S.W. 62.

HEADNOTES 1. WILLS: Trusts: Devise to School Valid. A devise in trust to construct a new school in the testator's native village was not too uncertain.

2. WILLS: Trusts: Devise to School: Trust Enforceable. The political state charged with the duty of maintaining the school has the legal right and duty to enforce the trust for the benefit of the community served by the school.

3. WILLS: Disinheritance Clause Sufficient. A clause in the testator's will naming his three children and stating that he made no bequests to them was sufficient to disinherit such children.

[696] WESTHUES, C.

This suit was filed in the Circuit Court of St. Louis County, Missouri, to set aside and cancel a certain trust created by the last will and testament of Luka J. Bogdanovich, also known as Louis J. Bogdanovich, deceased. The plaintiffs, Branislava Bogdanovich, also known as Branka Bogdanovich, Svetozar Bogdanovich, also known as Lawrence Bogdanovich, and Velemir Bogdanovich, also known as John Bogdanovich, a minor, by Arnold Willmann, next friend, were the children and only heirs at law of the testator. Gjuro Bogdanovich, also known as Juro Bogdanovich, was named as defendant, since he was named as executor of the estate of Luka J. Bogdanovich, deceased. Marko Bogdanovich, trustee, the Bank of the City of Nevesinje, Yugoslavia, and the Mayor of the village of Nevesinje, Yugoslavia, alternate trustees, asked to and were permitted to intervene and were made defendants. The trial court entered a judgment for the defendants and plaintiffs appealed.

Plaintiffs say that the trust is void because there is no legal entity capable of receiving or enforcing the trust and also the trust is so indefinite, vague, uncertain as to be void. The amount involved is about $40,000. The portion of the will creating the trust reads as follows:

"ITEM FOUR

"All the rest, residue and remainder of my estate, real personal and mixed, and wheresoever situate, I give, devise and bequeath to my brother, MARKO BOGDANOVICH (who resides at present in Nevesinje, Yugoslavia), as Trustee, for the purpose in this Section of the Will set forth.

"I attended school in the Village of Bijenja, Yugoslavia. The School I attended was a community school, without a name and without religious affiliations. It is my desire that my Trustee shall utilize all of my estate that comes into his hands in erecting on the present site of said school a new school building, the design of which shall be determined by my Trustee, and I direct my said Trustee to utilize the monies coming into his hands in the construction or reconstruction of said school building on the present site of said school. If the money is not sufficient to build a new building, then I desire that it shall be used for the repair and remodeling of the present building. I will appreciate it if the school, as reconstructed, is known as the "Luka Bogdanovich School". I hope that the school shall always remain unaffiliated with any religious group.

[697] "My Trustee shall have full power and authority to manage and control the funds coming into his hands, utilizing them as soon as practicable in the construction of said building.

"In case my brother, Marko Bogdanovich, predeceases me, or declines to act as Trustee, or is incapacitated so to act, then I direct that the money that would have been paid to him as Trustee shall be paid to the Bank of the City of Nevesinje, Yugoslavia, as Trustee of said fund to utilize the fund as hereinabove set forth.

"In case neither my brother or the aforesaid bank accepts said trust, then I direct that the money be paid to the Village of Nevesinje, Yugoslavia with directions to said village to utilize said money for the aforesaid purposes.

"A receipt signed by my brother, Marko Bogdanovich, or the Bank of the City of Nevesinje, Yugoslavia, or the Mayor of the Village of Nevesinje, Yugoslavia, shall be an acquittance releasing the Executor from further obligation as to said fund."

A brother of the testator named in the will as executor was called as a witness for plaintiffs. He testified he was born in what is now Yugoslavia in 1906; that he attended the school which was referred to in his brother's will; that he came to this country in 1922; that he returned for a visit to his native land in 1932. He described the school building and the facilities pertaining thereto. While the evidence has no particular bearing on the merits of the case, it does disclose that there is an urgent need for a new school building or for the remodeling and enlargement of the old structure.

Plaintiffs to sustain their contention that the purposes of the trust are vague and uncertain, cite Schmucker's Estate v. Reel, 61 Mo. 592, and Wentura v. Kinnerk, 319 Mo. 1068, 5 S.W.2d 66. In the Schmucker's Estate case the purpose of the trust was not named in the will. Note one of the provisions which was held void for uncertainty. "`The balance of my property of every description, I give, devise and bequeath to John H. Reel, to apply in charity, according to his best discretion, and I appoint said John H. Reel executor of this, my will.'" So, also in Wentura v. Kinnerk, supra, the residue of the testator's property was given to such charitable uses and purposes as the executor might determine. Such a trust was held void because of uncertainty.

In the case now before us there is no uncertainty. The entire residue of the testator's property, about $40,000, is directed by the will to be spent in constructing a new school building at a designated location. In case the fund be found insufficient to erect a new school structure, then the entire amount is to be used to repair and remodel the present building. It has been frequently held that a gift in aid of education is a valid bequest. 14 C.J.S. 444, Sec. 15; Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885, l.c. 888(8, 9). In this latter case this court en banc held the following to be a valid gift in trust for educational purposes: "`I give devise and bequeath the remaining part of my estate both real and personal to the Macon County Mo, school funds.'" It was there argued that the clause was void for uncertainty and therefore the trust was impossible of execution. This court held there was no ambiguity in the language; that it was clear that the testator intended just what he said: that the balance of the estate should be added to the Macon County school funds. No specific purpose was designated, however, the fund, going to the school district, would be used for the benefit of the patrons of the school. In the case now before us the donor specifically directed the purpose for which the money was to be spent. We see no ambiguity and hence the point must be ruled against plaintiffs.

Neither do we see any merit in the argument that there is no legal entity capable of receiving or enforcing the trust. The political state whatever it may be, now or in the future, charged with the duty of maintaining the school in question has the legal right and duty to enforce the trust for the benefit of the community served by the school.

Plaintiffs cite Jones v. Patterson, 271 Mo. 1. 195 S.W. 1004. In that case the will provided that after the [698] death of the life tenant she wanted the property "`placed in the hands of Clifford Patterson (my nephew) to be used for missionary purposes in whatever field he thinks best to use it, * * *.'" This court ruled the attempted bequest in trust void for uncertainty. We have no quarrel with that ruling. The nephew under that provision could have spent the fund for any missionary work in any part of the world. No such uncertainty exists in the present case. Here the money must be spent for the benefit of the school children of a certain community. Not only that, but it must be spent to construct a new building or to remodel the present one.

Plaintiffs also make the point that they are the children of the testator and therefore were not disinherited by the following clause in the will:

"Item Six

"I have three children. They are Branislava Bogdanovich, Svetozar Bogdanovich and Velemir Bogdanovich. I make no bequests to them."

Plaintiffs in their brief say: "The said Item 6 of the testator's will recites the names of his three children. Further than that it accomplishes nothing, and there is no language involved that indicates an intention either to include or exclude. So, as far as his three children are concerned, he died intestate." We cannot agree with that statement. Item six is brief; to us its meaning seems certain. It shows the testator had his three children in mind. He named each and then added, "I make no bequests to them." That clause speaks for itself. Testator expressly disinherited his children.

Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644, cited by plaintiffs, does not rule this question. What the court there held was that if a testator desired to exclude a child from inheriting his estate, he must do so in clear and unambiguous language. The testator in the present case did exclude his children in unmistakable terms. Fitzsimmons v. Quinn, 282 S.W. 37; 26 C.J.S. 1050, Sec. 45c.

We rule that the trial court correctly decided the issues and the judgment should be and is hereby affirmed. Bohling and Barrett, CC., concur.

PER CURIAM:

The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.

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