author: KENNISH, J.

text:
    ROBERT B. BUCHANAN et al., Appellants, v. SAMUEL M. KENNARD et al.
    In Banc,
    April 11, 1911.
    1. CHARITY: Public or Private: Essential Elements. Where (1) the objects of the charity are indefinite, vague and uncertain, and (2) the grant to trustees is made in perpetuity, the bequest cannot be upheld as a private trust, but if upheld at all must be as a public charity; for either of these conditions would render invalid a devise or bequest intended as a private trust, and both are recognized as valid (the first as essential) in a public charity.
    2. -: -: Statute of Charitable Uses. Not only is the Statute of Charitable Uses (43 Elizabeth ch. 4) in force in Missouri, but the common law of England upon the subject of such uses, as it existed at the time of and before the enactment of that statute, is also in force here. That statute was intended to include all the leading charities then known, and it established an enumeration, or kind of definition,- standard or test, to which all gifts or grants in trust could be brought, in order to determine whether they were charitable; but it cannot be looked to as the sole test of what is a public charity. Many other uses not named therein, and not within its strict letter, but which, coming within its spirit, equity and analogy, are considered charitable. Under the common law and this statute a hospital for the care of “sick and injured persons” is a public charity, though such persons may not be “aged, impotent and poor people” — the words used in the statute.
    3. -: -: Hospital for Sick and Injured: Barnes Hospital. A bequest of a large sum of money to three persons and their successors “in trust for the purpose of erecting and maintaining” on a designated tract of ground “a hospital for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church South of the United States or its successors, and under such rules and regulations as said trustees and their successors shall from time to time establish and maintain,” creates a public charity, although the words “sick and injured persons” are not found in the Statute o„f Charitable Uses. It is not the law that such a bequest is invalid, as a public charity, unless its use is limited tq “poor people.”
    4. -; -; -; Definite Beneficiaries. Nor was it necessary that the said bequest should be more definite as to the selection of the objects of the public charity, or for administering or carrying out the purposes of the gift, than it was made in the above provision of the will. It applies t'o all “sick or injured persons”- — to the rich and poor alike.
    5. -: -; Burdened With Maintenance of Grave: And Support of Relative. The fact that the gift to the trustees to establish a hospital is burdened with the payment of a small sum to a relative of testator for his maintenance for life, and of another small sum for keeping testator’s grave in repair, being mere charges upon the fund bequeathed for the principal charity and their effect being to diminish it to that extent, does not affect the validity of the bequest for the erection and maintenance of a hospital for the sick and injured.
    Appeal from St. Louis City. Circuit Court. — Ron. Eugene McQuiliin, Judge.
    Affibme-d.

      A. R. Russell, T. J. Rowe, A. M. Frmnberg, R. Nl.\ Moore and E. J. O’Brien for appellants.
    •(1) A trust violating the rule against perpetuities is void, unless the object and purpose of such trust is to create a valid public charity. 2 Perry on Trusts (5 Ed.), sec. 687; 2 Underhill on Wills, 1195; Johnson v. Holifield,- 79 Ala. 423; Troutman v. Orphans’ Home, 66 Kas. 1; Hilliard v. Miller, 10 Pa. St. 326;-Duke of Norfolk’s Case, 1 Vern. 164; Bank v. Longfellow, 96 Mo. App. 385; Mason v. Perry, 22 R. I. 475; Coit v. Comstock, 51 Conn. 352; Detwiller v. Hartman, 37 N. J. Eq. 347. (2) A trust in which the objects and purposes are not specifically stated and the beneficiaries clearly designated is void, unless the object and purpose of the trust is charitable in a legal sense. Nichols v. Allen, 130 Mass. 211; S-chmucker’s Estate v. Reel, 61 Mo. 592; Taylor v. Keep, 2 111. 368; Fountain v. Ravenel, 17 How. 369; Pennoyer v. Wadhams, 20 Ore. 278; Chambers v. St. Louis, 29 Mo. 543; Morice v. Bishop of Durham, 9 Yes. 399, 10 Yes. 541. (3) The trust created by the will so far as it relates to the founding of the hospital is not a legal and valid public charity, and is therefore void. Jones v. Williams, Amb. 651; Hinckley’s Estate, 58 Cal. 457; Commonwealth v. Thomas, 119 Ky. 208; Troutman v. Orphans’ Home, 66 Kas. 1; Chambers v. St. Louis, 29 Mo. 543; Crow ex rel. v. Clay County, 196 Mo. 234 ; 2 Story, Eq. Jur. sec. 1155; Morice v. Bishop of Durham, 9 Ves. 399; Taylor v. Keep, 2 111. App. 368; Commissioners v. Pemsel, (1891), A. C. 531; Century Diet., tit. “Hospital;” Murray’s New English Diet., tit. “Hospital;” Gitzhoffen v. Hospital Assn., 32 Utah, 46; Bridgman’s Duke on Charitable Uses, 122; Attorney-General v* Northumberland, 47 L. J. (Ch.) 571; Coleman v. O’Leary, 114 Ky. 388;'Kelly v. Nichols, 18 R. I. 62; In re Cullimore’s Trust, 27 L. R. (Ir.) 18; In re Clark’s Trust, L. R., 1 Ch. Div. 500; Buck v Roper, 79 Ala. 138; In re Buck (1896), 2 Ch. 727; Petersburg v. Me-’ chanics’ Assn., 78 Va. 431; Tyree v. Bingham, 100 Mo. ’451; Camp v. Crocker, 54 Conn. 21; Nichols v. Allen, 130 Mass. 211; In re Macduff, 65 L. J. Ch. 703, 74 L. T. 706; Nash v. Morley, 5 Beav. 183; In re Gassiot, 70 L. J. Ch. 242; Grant v. Saunders, 121 Iowa, 80; Kronshage v. Varrell, 120 Wis. 161; In re Good (1905), 2 Ch. 60; Attorney-General v. Haberdashers’ Co., 1 Myl. & K. 428; Sehmucker’s Estate v. Reel, 61 Mo. 592; In re Sidney (1908), 1 Ch. 488, C. A.; Kendall v. Granger, 5 Beav. 300; Barkley v. Donnelley, 112 Mo. 561; State ex rel. v. P'owers, 10 Mo. App. 263, 74 Mo. 476; Adams v. Hospital, 122 Mo. App. 675; Ingraham v. Ingraham, 169 111. 432; Russell v. Atwater, 49 Minn. 60; Brigham v. Hospital, 126 Fed. 796, 134 Fed. 513; Woodruff v. Marsh, 63 Conn. 125; Ould v. Hospital, 95 U. S. 303; Jones v. Habersham, 107 U. S. 174; Elliott v. Mayor, 3 Rawle (Pa.) 170; Burbank v. Burbank, 152 Mass. 254; Corporation of Reading v. Lane, Duke 81; Attorney-General v. Kell, 2 Beav. 575; Pelham v. Anderson, 2 Eden, 296; Vaughn v. Farrar, 2 Ves. Sr. 182; Masters v. Masters, 1 P. Wms. 421. (4) The court cannot make a will for the testator, but must ascertain the intention from the language used in the will. Board of Trustees v. May, 201 Mo. 360 ; Reeves v. Reeves, 5 Lea (Tenn.) 653; Kelly v. Nichols, 17 R. I. 323; Attorney-General v. Hunter, 68 L. J. Ch. 440; Holland v. Aicock, 108 N. Y. 312; Adye v. Smith, 44 Conn. 60; Taylor v. Keep, 2 111. App. 368; Mason v. Perry, 22 R. I. 475; Hadley v. Forsee, 203 Mo. 418; Wells v. Fuchs, 226 Mo. 97. (5) A trust is not charitable unless the testator has devoted the fund to some charitable purpose so definitely and exclusively that the trustees cannot apply any part of such fund to a non-charitable purpose without violating the express terms of the trust. Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 541; Mason v. Perry, 22 R. I. 475; Kelly v. Nichols, 17 R. I. 323; Attorney-General v. Soule, 28- Mich. 153; Nichols v. Allen, 130 Mass. 212; Taylor v. Keep, 2 111. App. 368; Kinike’s Estate, 155 Pa. St. 101; In re Shattuck’s Will, 193 N. Y. 446; In re Sutro’s Estate, 102 Pac. (Cal.) 923; Johnson v. Johnson, 92 Tenn. 559; Kendall v. Granger, 5 Beav. 300; Fifield v. Van Wyek (Freeman’s note), 64 Am. St. 756; 2 Perry on Trusts (5 Ed.), sec. 732; James v. Allen, 3 Meriv. 19; Grimond v. Grimond (1905), A. C. 124; In re. McCauley, 28 Ont. 610. (6) A charitable trust must be for the general public use, that is, the benefit must inure to the entire public. Jones v. Williams, Amb- 651; Bank v. Longfellow, 96 Mo. App. 385; Cocks v. Manners, L. R. 12 Eq. 574; Festorazzi v. Catholic Church, 104 Ala. 327; In re Lennon’s Estate, 92 Pac. (Cal.) 870; Lackland v. Walker, 151 Mo. 2-1 O' ;• Coe v. Washington Mills, 149 Mass. 547; Drury v. Natick, 10 Allen, 180; Field v. Theological Seminary, 41 Fed. 371; Powers v. Powers, 29 N. Y. Supp. 950; Institute v. Delaware County, 94 Pa. St. 166; In re Nottage (1895), 2 Ch. 653; Pennoyer v. Wadhams, 20 Ore. 278; Troutman v. Orphans’ Home, 66 Kas'. 1; Tyssen’s Charitable Bequests, 4. (7) There is no public benefit in the treatment of sickness or injury unless such treatment is restricted to the poor, whose support is a public duty. State ex rel. v. Switzler, 143 Mo. 287; Deal v. Mississippi County, 107 Mo. 464;' State ex rel. v. Pike County, 144 Mo. 275; Loan Assn, v. Topeka, 21 Wall. 655; R. S. 1899, secs. 8993-8994; State v. Osawkee Township, 14 Kas. 418; Deering v. Peterson, 75 Minn. 118; Thomas v. Edmonson County, 8 Ky. Law R. 265; McIntyre v. Pembroke, 53 N. H. 467; Hugging v. Carter County, 24 Ky. Law R. 1893; Dodge County v. Diers, 69 Neb. 331; Board of Health v. County Commissioners, 89 Minn. 402; Labrie v. Manchester, 59 N. H. 120; Clinton v. Clinton, 61 Iowa 207; Commissioners v. Fertich, 18 Ind. App. 1; Knightstown v. Horner, 36 Ind. App. 139; Yionet v. First Municipality, 4 La. Ann. 43; Tollefson v. Ottawa, 228 111. 134; In re Yturburru, 134 Cal. 507; Keeley Institute v. Milwaukee County, 95 Wis. 153; In re House, 23 Colo. 89; Webster v. Police Jury, 51 La. Ann. 1204; Baltimore v. Keeley Institute, 81 Md. 106; Leavitt v. Morris, 105 Minn. 170. (8) A hospital merely.for sick and injured persons is not necessarily charitable in the sense of fulfilling a public purpose. P'eople v. Fitch, 39 N. Y. Supp. 927; Adams v. University Hospital, 122 Mo. App. 675; Phillips v. Railroad, 211 Mo. 419; Washingtonian Home v. Chicago, 157 111. 414; State ex rel. v. Powers, 10 Mo. App. 263; County of Hennepin v. Brothers of Gfithsemane, 27 Minn. 460; Board of Review .v. Chicago Polyclinic, 233 111. 268; People v. Ravenswood Hospital, 238 HI. 137; Gray Street Infirmary v. Louisville, 23 Ky. Law R. 1274; Wathen v. Louisville, 27 Ky. Law R. 635; Thiel College v. Mercer County, 101 Pa. St. 530; Webber Hospital Assn. v. McKenzie, 104 Me. 320; Gitzhoffen v. Hospital Assn., 32 Utah, 46; Brown v. La Societe F'rancaise, 138 Cal. 475. (9) The care of a burial lot is a strictly private purpose. Lloyd v. Lloyd, 2 Sim. (N. S.) 255; Rickard v. Robson, 31 Beav. 244; Fowler v. Fowler, 33 Beav. 616; Hoare v. Osborne, L. R. 1 Eq. 585; Johnson v. Holifield, 79 Ala. 423'; Coit v. Comstock, 51 Conn. 352; Bates v. Bates, 134 Mass. 110; Kelly v. Nichols, 17 R. I. 323; Knox v. Knox, 9 V. Va, 124; Hartson v. Elden, 500 N. J. Eq. 522; Corle’s Case, 61 N. J. Eq. 409; Van Syckel v. Johnson, 70 Atl. (N. J. Eq.) 657. (101) Where an unapportioned and unascertainable portion of a trust fund is bestowed upon an invalid or unlawful purpose, the whole trust fails, regardless of the validity of the other portions. Attorney-General v. Hinxman, 2 Jae. & W. 270; Fowler v. Fowler, 33 Beav. 616, 10 Jur. (N. S.) 648 ; Cramp v. Playfoot, 4 Kay & J. 481; Chapman v. Brown, 6 Ves. 404; Beekman v. People, 27 Barb. 280; Limbrey v. Gurr, 6 Madd. 151; Attorney-General v. Hunter, 68 L. J. Ch. 449; Mason v. Perry, 22 R. I. 475; Kelly v. Nichols, 17 R. I. 306 ; Coit v. Comstock, 51 Conn. 352; Van Syckel v. Johnson, 70 Atl. (N. J. Eq.) 657; Tilden v. Green, 130 N. T. 29; Robards v. Btrown, 167 Mo. 456 ; Stevens v. De La Vaulx, 166 Mo. 20; Lockridge v. .Mace, 109 Mo. 162; Sheppard v. Fisher, 206 Mo. 208. (11) In a suit between the heirs and the trustees to determine whether there is a proper bequest to a charitable use, costs should be allowed to all parties out of the fund or estate. 2 Perry on Trusts, sec. 747; 22 Ency. PI. and Pr. 1210; Currie v. Pye, 17 Ves. 462; Bliss v. American Bible Soc., 2 Allen 334; Attorney-General v. Moore, 19 N; J. Eq. 509; Ingraham v. Ingraham, 169 111. 450; Lombard v. Witbeck, 173 111. 396; Arnold v. Alden, 173 111. 229; Tracey v. Murray, 44 Mich. 109; McClary v. Stull, 44 Neb. 175 ; Enders v. Enders, 49 Minn. 182; Straw v. East Maine Conference, 67 Me. 493; Drew v. Wakefield, 54 Me. 291; Moore v. Alden, 80 Me. 301; Dane v. Home for Women, 111 Mass. 132.

      Thomas F. Galt and A. & J. F. Lee for respondents.
    (1) Upon point 1 and 2 as made by appellants there is no issue. (2) The will of Robert A. Barnes created a public charitable trust in these defendant trustees, because: (a) It was devised in trust for the benefit of an unlimited number of undesignated persons ; (b) For the purpose of healing the sick and injured generally — -a charity; (c) No person engaged in the management of the charity could derive any profit from it. Jackson v. Philips, 14 Allen, 356; Cawse v. Nottingham, (1891) 1 Q. B. 585; Ould v. Washington Hospital, 95 U. S. 310; 6 Ency. Law and Pro. 897, 902; Y'idal v. Philadelphia, 2 How. (U. S.) 127; Mo. Hist. Society v. Acad, of Science, 94 Mo. 459; Hinckley Estate,. 58 Cal. 457; Troutman v. Orphans’ Home, 66 Kas. 1; Tyssen, Charitable Bequests, 4-5; State ex rel. v. Powers, 10 Mo. App. 263; Bispham’s Principles of Equity (6 Ed.), par. 12; Perry on Trusts; Adams v. Hospital, 122 Mo. App. 675; McDonald v. Hospital, 120 Mass. 432; Hearns v. Hospital, 68 Conn. 98; Burke v. Roper, 79 Ala. 138; County v. Brotherhood, 27 Minn. 460; Doughten v. Yandevar, 5 Del. Ch. 51; Weeks v. Habson, 150 Mass. 377; Hayes’s Will, 171 111. 462; Railroad v. Artist, 60 Fed. 365; Railroad v. Artist, 19 U. S. App. 612; Long v. Rosedale Cemetery, 84 Fed. 135; Thornton v. Franklin Square House, 22 L. R. A. (N. S.) 487; Webster v. Wiggin, 19 R. I. 73; Hewitt v. Aid Assn., 7 L. R. A. (N. S.) 497 ; 2 Rev. Stats. N. Y. (9 Ed.) 1896; Laws 1893, ch. 498; Burbank v. Burbank, 152 Mass. 234; Downs v. Hospital, 101 Mich. 555; Ellenhorst v. Pythian, 110 Ky. 923; Jenkins v. Berry, 118 Ky. 350; St. Francis v. Board, 231 111. 317; Board of Review v. Polyclinic, 233 111. 268. (3) Where the intent of the testator to create a charitable trust is once shown, courts of equity will construe the trust with the greatest liberality. Attorney-General v. Haberdashers’ Co., 1 Myl. & K. 428; Mason v. Perry, 22 R. I. 475; Ingraham v. Ingraham, 169 111. 450'; 1 Story, Eq. Jnr. 1165; Perry on Trusts, 630; Sanderson v. White, 18 Pick. 333; Dougkten v. Vandever, 5 Del. Ch. 51. (4) The will of Mr. Barnes devoted the trust fund so definitely and exclusively to a charitable purpose that the trustees cannot apply any part of such fund to a non-charitable purpose without violating the express terms of the trust. Ellenhorst v. Pythian, 110 Ky. 923; Johnson v. Johnson, 92 Tenn. 559; State v. Smith, 16 Lea, 670; McDonald v. Hospital, 120 Mass. 432. (5) It is not necessary that the benefit of a charitable trust' inure to the public in such manner that every member of the public is entitled to share • directly in its benefits. It is sufficient if it is for the benefit of the public, as stated under point 2. (6) A hospital for sick and injured persons generally without distinction as to rich or poor, and without profit, is necessarily charitable in the sense of conferring a public benefit. Jenkins v. Berry, 11 Ky. 350; County of Hennepin v. Brotherhood, 27 Minn. 460; St. Francis v. Board, 231 111. 317; Board of Reyiew v. Polyclinic, 233 111. 268. (7) A hospital for sick and injured persons generally without profit to any one in the operation of the hospital is necessarily charitable in the sense of fulfilling a public purpose. McDonald v. Hospital, 120 Mass. 432; Hearns v. Waterbury Hospital, 66 Conn. 98; Downs v. Hospital, 101 Mich. 555; County of Hennepin v. Brotherhood, 27 Minn. 460; St. Francis v. Board, supra; Board of Review v. Polyclinic, supra; Hospital Assn. v. McKenzie, 104 Me. 320; People v. Cogswell, 113 Cal. 129. (8) Item two of the fifth codicil, directing the trustees to care for the grave of Mr. Barnes and pay twenty-five dollars per month to William A. Barnes for life, does not defeat the charitable trust. Tiedeman on Real Property (3 Ed.) pars. 20, 203; Clark v. Brookfield, 81 Mo. 503; Jones-v. Habersham, 107 U. S. 174; Piper v. Moulton, 72 Me. 155; Giles v. Fatherless, 10 Allen, 355; Drnry v. Natick, 10 Allen, 183; Nonrse v. Merriam, 8 Cush. 11; Hornberger v. Hornberger, 12 Heisk. (Tenn.) 635; In re Williams, 5 L. R. Ch. Div. 735; Fisk v. Attorney-General, 4 L. R. Eq. Cas. (1867) 521; Dawson v. Sinall, 18 L. R. Eq. Cas. Í14; R. S. 1899, sec. 5216. (9) Appellants are not entitled to costs ont of the trust fund if they are defeated in this case. R. S. 1899', sec. 63. (10) If the court shall find Mr. Barnes has created a charitable trust, then the ■ appellants, not being either beneficiaries or trustees, are not proper parties to this action. Tyree v. Bingham, 100 Mo. 451; Lack-land v. Walker, 151 Mo. 242; Woman’s Christian Assn, v. Campbell, 147 Mo. 103; Academy v. Clemens,. 50 Mo. 167; Barkley v. Donnelly, 112 Mo. 561; Chipman v. Montgomery, 63 N. Y. 221; Perry on Trusts, par. 744. (11) If appellants at any time had any cause of action for the property sued for, their claim has been barred by the seventeen years which have elapsed since the will of Mr. Barnes was proved, as shown by the record.. R. S.-1899', secs. 4262, 4271, 4272, 4621 and 4624; Bank v. Bank, 107 Mo. 133; Harbey v. Donohoe, 97 Mo. 141; Kelly v. Hurt, 74 Mo. 561; Kline v. Vogel, 90 Mo. 239; Landrum v. Bank, 63 Mo. 480; Wells v. Perry, 62 Mo. 573; Reed v. Pointer, 145 Mo. 353.
   KENNISH, J.

— This spit in equity was instituted in the circuit court of the city of St. Louis on the 18th day of August, 1909, by the appellants, as heirs of Robert A. Barnes, deceased, against Samuel M. Kennard, Samuel Cupples and Murray Carleton, as trustees, under the last will and testament of the said Robert A. Barnes. One of the said heirs who did not join as plaintiff was made co-defendant.

By the provisions of the will of the said Robert A. Barnes certain bequests were made to said trustees for the purpose of erecting and maintaining a hospital for sick and injured persons, and the purpose of this suit was to have such bequests adjudged invalid, the trustees divested of all title thereto and the title vested in the heirs of the said Robert A. Barnes, and for general relief. A demurrer to the petition was sustained and the plaintiffs declining to plead further, a final judgment was entered against them, from which they appealed to this court.

The full text of the will and six codicils thereto, all of which are of unusual length, are set forth in the petition. By the provisions of the will it appears that property of great value was therein disposed of and many bequests were made to charities, relatives and friends. This suit is concerned only with those provisions by which bequests are made for the erection and maintenance of a hospital for sick and injured persons, and for the endowment thereof. These provisions and the purposes thereof, together with the issues tendered thereon, are referred to and concisely stated in the following passages from plaintiffs’ petition, namely:

“These plaintiffs further state that by items XVIII, XIX and XX of said original will; Item III of the first codicil thereto; Items VII, IX and X of the said third codicil thereto; Item II of the said fourth codicil thereto, and Items II, III, and VI of the said fifth codicil thereto, said testator, Robert A. Barnes; deceased, willed, devised and bequeathed to certain trustees therein named, certain definite and specific real and personal property, together with all the rest, residue and remainder of his estate, real or personal and of whatever kind, nature or description, not otherwise specifically bequeathed or devised, all of which will more fully appear in said items as hereinabove fully and at large set forth, in trust forever, to said trustees and their successors in the trust therein and thereby attempted to be created, for the following uses and purposes and none other, to-wit:
“1st. To furnish a site for the purpose of erecting and maintaining thereon a hospital for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church, South, of the United States, or its successors, and under such rules and regulations as said trustees and their successors shall from time to time establish and maintain, to be forever called and known as the ‘Barnes Hospital.’
“•2d. To erect and furnish the Barnes Hospital buildings upon the site above mentioned.
“3d. As an endowment for the use and benefit of said Barnes Hospital hereinbefore provided for, for the support and maintenance of said hospital.
“4th. To keep the lot of said testator, Eobert A. Barnes, in Bellefontaine Cemetery, and all improvements thereon, in the best repair and condition forever.
“5th. To pay to William A. Barnes, a cousin of the testator, the sum of twenty-five dollars per month during* his lifetime.
“That plaintiffs are advised by counsel and believe that the said provisions contained in the said items last hereinabove specifically mentioned and referred to unlawfully suspend the absolute power of alienation of such portions of the estate as are herein embraced; and they therefore allege on information and belief that the said provisions are, and each of them is, illegal and invalid in law.
“That plaintiffs are advised by counsel and believe that all. of said provisions of said will are indefinite and uncertain in their objects, purposes and subjects, invalid and unauthorized by law, and that they therefore allege on information and belief that said provisions are, and each of them is, illegal and invalid in law. ’ ’

Item XVIII of the will, by which the testator sought to create the public charity in controversy, is as follows:

“I will and devise to Richard M. Scruggs, Samuel M. Kennard and Samuel Cupples, as trustees, and to their successors in this trust, as hereinafter provided for, either of the following described parcels of land, which they may select, situate in said city of St. Louis: first, a parcel of land in City Block Number 362, commencing at a point fifty feet east of North Twelfth Street, and on the north line of Madison Street, with a front running eastwardly from that point of one hundred feet and extending with that width northwardly to the depth of ninety-six feet and seventy feet to Clinton Alley, now called “Clifton Place;’ second, a parcel of land in City Block Number 2366, having a front of one hundred feet on the west line of Elliott Avenue, and extending with that width westwardly along the north line of Montgomery Street to the depth of one hundred and twenty-seven feet and six inches; to have and to hold, subject to the conditions and limitations hereinafter provided, to said trustees and their successors forever, in trust for the purpose of erecting and maintaining thereon a hospital for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church South of the United States or its successor, and under such rules and regulations as said trustees and their successors, shall from time to time establish and maintain, to be forever called and known as the ‘Barnes Hospital,’ and’ I hereby will and direct that in case said trustees shall deem neither of the said parcels of land, last aforesaid described, eligible for a site for said hospital, then and in that case my executors are hereby empowered and directed to sell at private sale, at a price not less than the sum fixed by said trustees, and convey said parcels of land, and pay the proceeds thereof to said trustees with which and from the fund for this purpose in Item XVIII hereof provided, they shall purchase and acquire other real estate in the central portion of said city of St. Louis, as a site for said hospital, which premises so acquired shall be held in trust by them and their successors forever, and used for the same purpose as the said parcel of land hereinbefore to them devised. This devise and bequest is made upon the condition and limitation that said real estate or any part thereof, so selected or purchased, as aforesaid, shall never be' mortgaged or otherwise encumbered by said trustees or their successors.
‘ ‘ In case of the death, resignation or removal from said city of St. Louis, of any one of said trustees or of their successors in said trust, or of his failure to or his becoming incapacitated to act as such, from time to time, the Bishop presiding at the St. Louis Conference of the said Methodist Episcopal Church South or its successor, next preceding such death, resignation, removal, failure or becoming incapacitated, as aforesaid, shall appoint in writing, a successor in said trust, who by virtue of said appointment shall be vested with all the same rights, powers and duties as if he had been one of the said original trustees herein named.
“It is expressly provided that said trustees and their successors, or any of them, shall not receive or be paid any salary, reward or remuneration of any kind, for any work or labor done or services performed in or about their or his said office or position, for no one is fit for said position who would not act therein gratuitously. This provision is not deemed necessary as to the above named trustees, whom I know, but they may be important in regard to their successors.
“It is further expressly provided that said trustees and their successors, from time to time, shall annually, between the first and fifteenth days of January of each year, make and deliver to the said Bishop, presiding at the said conference aforesaid, next preceding said first day of January, and publish daily for one week in a prominent newspaper, published in said city, their report in writing, showing the state and condition of said hospital and its finances during the next last preceding year, the number of patients received and discharged, the income received and from what sources, the expenditures made and for what purposes, and the amount of the then present assets in their hands and in what they consist, and how invested, and where their funds are kept. And none of the moneys or funds to them at any time belonging, shall be deposited or kept in any bank, whose capital stock paid in, exclusive of surplus, is less than five hundred thousand dollars.”

In other parts of the will, relating to and making bequests for the proposed hospital, language is employed by the testator which discloses his deep solicitude and concern for the accomplishment in due time of that charitable purpose, hut we do not deem it necessary to a proper understanding of the issues presented that these several provisions should be set forth in this statement.

Eleven separate points are stated in appellants’ brief and a large number of authorities cited in support of each. In thd printed argument the propositions relied upon are set forth in the following compact form, namely:

“1st. That the will of Robert A. Barnes under consideration creates a trust in perpetuity, such as can be upheld only in the case of a legal and valid public charity.
“'2d. That said will is so lacking in designation of specific beneficiaries, and is so indefinite in its purposes and objects, that it cannot be upheld as a private trust, and is "void, unless it is a legal and valid public charity.
“3d. That said trust, as created by said will, is not a legal and valid public charity.”

The correctness of the first two of the foregoing propositions is conceded by respondents and the sole remaining question is the third, which is more fully stated elsewhere in appellants’ brief, as follows:

‘ ‘ The trust created by the will, so far as it relates to the founding of the hospital, is not a legal and valid public charity, and is therefore void.”

Although the first two of the foregoing propositions are not controverted, it may be said with reference to them that the testator evidently sought and intended to create a public charity by the devises and bequests of Item XVIII of the will. That purpose plainly appears from these two provisions of the bequest: (1). The objects of the charity are indefinite, vague and uncertain. (2). The grant to the trustees is made in perpetuity. Both of these provisions are recognized as valid — the first as essential — in a public charity, while either of them would render invalid a devise or bequest intended as a private trust. Therefore, it is apparent that this bequest cannot be upheld as a private trust and that it must be upheld, if at all, as a pPblic charity.

"We are now to consider whether the bequest in Item XVIII of the will creates a valid public charity. In the determination of this question we are to deal with the subject in its legal sense; that is, a public charity recognized as such by the law and which may be enforced and the bequests therefor administered in accordance with the purpose and intention of the founder of the charity, under the jurisdiction and guidance of the equity powers of the courts.

Public charities, for the temporary and immediate relief from the consequences of public calamity or visitation, though of frequent occurrence and most commendable in those engaged therein, aid us but little in determining what is a public chainty in the sense involved in this inquiry. Neither can we look for light from any legislative act or declaration of the lawmaking body of this State, notwithstanding the fact that public charities, in the legal sense, are well recognized by our laws and many at the present time are in force and contribute in no small degree to the material well-being of our people. The question must be decided by resort to the common law of England, as built up and construed by the courts, and which by statute has been made a part of the law of this State.

/ Trusts for charitable uses, or public charities, as known at the present time, are of ancient origin and •have long been recognized as a part of the common law. In England, courts of chancery exercised jurisdiction over them during the reign of Queen Elizabeth, in which, as appears from the records of such courts, many cases were brought for the purpose of enforcing compliance with the provisions of the trust in question in order that the bequest might be administered in accordance with the intention of the founder of the charity. [2 Perry on Trusts and Trustees (6 Ed.) 694.] In the forty-third year of the reign of that sovereign, and after the jurisdiction of courts of equity to enforce such trusts had become well established, what is known and referred to as the Statute of Charitable -Uses, or the 43d Elizabeth C. 4, was enacted by Parliament, and that act has had a most important bearing upon the subject of public charities from that date until the present time. That statute, together with the common law of England upon the same subject, was made a part of the law of this State, and with the decisions of this court, now constitutes the law upon public charities by which we must be governed in the determination of this' case.

In the preamble of the 43d Elizabeth C. 4, a number of classes of public charities are set forth as then existing and to which the act applied. As appellants contend that the bequest in controversy in this case cannot be upheld as a public charity unless it can be shown to fall within some one or more of the classes thus enumerated, we shall set out the title and preamble of that act. They are as follows:

“An Act to redress the mis-employmeni of lands, goods and stocks of money heretofore given to certain charitable uses. ■
“Whereas Lands, Tenements, Rents, Annuities, Profits, Hereditaments, Goods, Chattels, Money and Stocks of Money, have been heretofore given, limited, appointed and assigned, as well by the Queen’s most excellent Majesty, and her most noble Progenitors, as by sundry other well disposed Persons; some for Relief of aged, impotent and poor People, some for Maintenance of sick and maimed Soldiers and Mariners, Schools of Learning, Free Schools, and Scholars in Hniversities, some for Repair of Bridges, Ports, Havens, Causways, Churches, Sea-Banks and Highways, some for Education and Preferment of Orphans, some for or towards Relief, Stock or Maintenance for Houses of Correction, some for Marriage of poor Maids, some for Supportation, Aid and Help of young Tradesmen, Handicrafts — men and Persons decayed, and others for Relief or Redemption of Prisoners or Captives, and for Aid or Ease of any poor Inhabitants concerning Payments of Fifteens, setting out of Soldiers and other Taxes; which Lands, Tenements, Rents, Annuities, Profits, Hereditaments, Goods, ChatT tels, Money and Stocks of Money, nevertheless have not been employed according to the charitable Intent of the givers and Founders thereof, by reason of Frauds, Breaches of Trust, and Negligence in those that should pay, deliver and employ the same; For Redress and Remedy whereof, Be it enacted by Authority of this present Parliament,” etc.

Referring to that statute as a part of the law of this State, appellants maintain the following:

“So it may be considered as settled that the Statute of Charitable Uses is in force in Missouri. And the question then arises whether the trust created by this will is a charity under that statute. In every State where this statute is considered in force, courts look to this statute for the purpose of ascertaining what uses are charitable and what are not.”

/' There is no doubt as to the correctness of appellants’ proposition that the Statute of Charitable Uses is in force in this State, but it is equally true that the common law of England upon the subject of such uses, as it existed at the time of and before the enactment of that statute, is also in force in this State. [R. S. 1909, sec. 8047; Chambers v. St. Louis, 29 Mo. 543; Missouri Historical Society v. Academy of'Science, 94 Mo. 459; 2 Perry on Trusts and Trustees (6 Ed.), 694.]

In the case of Chambers v. City of St. Louis, supra, this court, speaking through Judge Scott, said: “Of late years the subject of charities has undergone a great deal of investigation, both in England and the United States; and the result of that investigation has strengthened the. opinion that the law of charities did not derive its existence from the Statute of 43 Elizabeth, and that there was an inherent jurisdiction in the court of chancery over the subject of charities before the enactment of that statute. The opinion of the Supreme Court of the United States, in the case of the Philadelphia Baptist Association, in which a contrary doctrine was intimated, has not given satisfaction ; and in subsequent cases, occurring in the State courts, it has not been followed. Judge Story, speaking of that case in the subsequent one of Vidal v. Girard’s Exrs., 2 How. 196, says: ‘Very strong additional light has been thrown upon this subject by the recent publications of the commissioners on the public records in England, which contain a very curious and interesting collection of the chancery records in the reign of Queen Elizabeth, and in the earlier reigns. Among these are found many cases in which the court of chancery entertained jurisdiction over charities long before the Statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish in the most satisfactory and conclusive manner that cases of charities, where there were trustees appointed for general and indefinite charities, as well as for specific charities, were familiarly known to, and acted upon and enforced in, the court of chancery.’ "Whatever doubt, therefore, might be properly entertained on the subject when the case of the Trustees of the Philadelphia Baptist Association v. Exrs. of Hart, 4 Wheat. 1, was before the court (1819), these doubts are entirely removed by the late and more satisfactory sources of information to which we have alluded.”

And in the case of Mo. Hist. Society v. Academy of Science, supra, this court, discoursing upon the subject of what is a public charity under the law of this State, and the effect of the Statute of Elizabeth upon the subsequent jurisdiction of courts of equity over such charities, said: “Any gift not inconsistent with existing laws, whjch 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, is a charity within the meaning of the authorities cited, and it is none the less a charity because not so denominated in the instrument which evidences the gift. And the validity of such charitable gifts is not at all dependent on the Statute of 43 Eli. c. 4, nor does the jurisdiction of courts of equity in such cases depend on that statute. The contrary view was at one time entertained by the Supreme Court of the United States (Baptist Association v. Hart, 4 Wheat. 1), but that idea was reversed and thoroughly exploded in the Girard Will Case, 2 How. 127, which has since been followed. ’ ’

These cases are cited, and many of the same import could be added to show that the purpose of the Statute of Elizabeth was not constructive or definitive as to the law of charitable uses, but was intended solely to provide a new jurisdiction or legal machinery to correct existing abuses in such charities, for the reason,, as stated in the act, that the properties theretofore given to the charities therein named, ‘ as well, by the Queen’s most excellent Majesty, and her most noble Progenitors, as by sundry other well disposed Persons . . . nevertheless have not been employed according to the charitable Intent of the givers and Founders thereof, by reason of Frauds, Breaches of Trust,” etc.

Speaking of this statute and its effect, it has been said that, “Since the passage of this statute, all the objects named therein are considered charitable. There are also many other uses, not named, and not within 'the strict letter of the statute, but which, coming within its spirit, equity and analogy, are considered charitable.” [2 Perry on Trusts and Trustees (6 Ed.), sec. 692.] But this statute, even though remedial and not intended to establish a new standard as to what was a public charity, did enumérate the several classes of such charities for which the remedy was provided and, as there was no reason for omitting any from the benefits thereof, it must be conceded that it was intended to include the leading charities then known, and it has been said that one of the things accomplished by it was, “It established an enumeration, or land of definition, standard, or test, to which all gifts and grants in trust could be brought, in order to determine whether they were charitable.” [2 Perry, supra, sec. 696.]

Prom the foregoing authorities it clearly appears that the statute cannot be looked to as the sole test of what is a public charity, hut that “many other uses, not named, and not within the strict letter of the statute, but which, coming within .its spirit, equity and analogy, are considered charitable.” As supporting this view of the law, it may he noted that one of the more than fifty cases in which the courts of England had exercised chancery jurisdiction over public charities before that statute was enacted, is reported as follows: “Bill to compel defendant, who is feoffee in, trust to make an estate in certain lands in Tottenham and Hornsey, to the hospital of St. Bartholomew, in West Smithfield, for the endowment of a chapel there; ‘because great multitudes of Christian people of all parts of England and other nations, for sickness, poverty, and misery, continually of custom resort to the said hospital, and there relieved; and finally have their Christian sepulture round about the said chapel.’ ” [Wakering v. Bayle, Proceedings in Chancery, vol. 1. Cited in note on Vidal v. Girard’s Executors, 43 U. S. 156.] It is evident from this report that the hospital there recognized as a public charity, was not limited to “aged, impotent and poor people,” but that the sick were also the recipients of its bounty, though neither poor nor miserable.

The purpose of the devise and bequest in controversy is stated in the will to he “in trust for the purpose of erecting and maintaining thereon a hospital for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church South of the United States or its successor, and under such rules and regulations as said trustees and their successors, shall from time to time establish and maintain.”

The position of appellants, in assailing the validity of the foregoing - provision as creating a public charity, is stated as follows: “.There is no restriction of the benefits of . this hospital to the poor, and it is the absence of any snch restriction that precludes the conclusion that any charity is thereby created. This is the vital question in this case, Is a ‘ hospital for sick and injured persons’ without any further designation or restriction, a charity in the sense of relieving the proof ? . . . Both in England, where the Statute of Charitable Uses originated, and in those States of the Union where it has been followed, the rule is universal that, unless the gift or trust is for public educational purposes, public religious purposes, or Works of public utility benefiting and open to the general public, it must be in some form or manner for the relief of poverty- . . . Charity, in the sense of receiving or benefiting individuals, is synonymous with charity in the popular meaning, — the relief of the poor.”

Under this contention, the poverty of the recipients of the charity is made an essential element of a valid public charity in all cases where the charity is to be bestowed upon individuals instead of upon the general public. This contention, even if we confine the definitions of public charities to such as are included in the Statute of Elizabeth, as insisted by appellants, is placing too restricted a construction upon the law, for, under the first class, “aged, impotent and poor people,” it is manifest that if the aged or impotent must be poor, in order to be proper objects of a public charity, then the words “aged” and “impotent” are meaningless and add nothing .to the requirement of poverty. As to the subsequent classes, “maintenance of sick and maimed soldiers and mariners,” and “aid and help to young tradesmen,” it may also be said that if poverty be necessary to entitle them to bounty, they would have been comprehended Within the words “poor people,” as used in the first class. We have not overlooked a few cases cited by appellants in support of their contention, but they are not in accord with the spirit of the law in this State or with the current of authority'upon the subject.'

While poverty is the condition generally recognized in the bestowal of public charity upon individuals, it is not the only condition, as abundantly appears from the authorities. Indeed, it is not the fact of poverty alone which makes a person a proper object of charity, and this is shown by the existence of penal laws in England, along with the law of public charities, for the punishment of sturdy beggars. It is the need or want of food, clothing, shelter or other bodily ministrations, so commonly found among the poor, which prompts the exercise of public charity to that class. But a person who is sick, injured or afflicted, or in a helpless condition, is none the less a proper object to be included in the purpose of a public charity, although he may not be poor. This is the broad sense in which, in Hospital Association v. McKenzie, 104 Maine, 326, speaking of a hospital as a public charity, the court said: “It was to be open to all. The rich should not be turned away because of their wealth, nor the poor because of their poverty.” And in which this court, in Mo. Hist. Society v. Academy of Science, supra, defined a public charity as, “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.” In 2 Perry on Trusts and Trustees (6 Ed.), sec. 687, that author includes in charitable trusts, ‘(all gifts for the relief and comfort of the poor, the sick, and the afflicted.” And at section 692, the same author continues: “Since the passage of this statute, all the objects named therein are considered charitable. There are also many other uses, not named, and not within the strict letter of the statute, but which, coming within its spirit, equity and analogy, are considered charitable.” And in 6 Cyc: 902, public charities are defined as follows: “Charities are either pubjic or private. Every public trust, though benefiting the rich and the poor alike, is a charitable trust, and those terms have the same meaning.”

In accordance with the foregoing doctrine, public charities have been upheld in which the bequest was made to relieve “the great suffering, distress, famine and want caused by the destruction of life and property by storms, floods, fires and other accidental and natural causes.” [Kronshage v. Varrell, 120 Wis. 161.] And where a bequest was to a life saving station. [Richardson v. Mullery, 200 Mass. 247.] And “to give shelter to homeless people at night, irrespective of creed, color or condition.” [Croxall’s Estate, 162 Pa. St. 579.] And for the purpose of establishing a fund and maintaining a hospital for the benefit of “infirm, afflicted, or unfortunate persons who are residents of said town of Pittsfield at any time, and who may be admitted into said hospital by the officers or authorities thereof for treatment; and also for all who may reside elsewhere, and who may be admitted therein for treatment.” [Burbank v. Burbank, 152 Mass. 254.] And “for the purpose of founding and supporting, or uniting in the support of any institution that may be then founded, to furnish a retreat and home for disabled or aged and infirm and deserving American mechanics.” [Hayes v. Pratt, 147 U. S. 557.] “For the maintenance of a free hospital in Biddeford, Maine, where the unfortunate may receive good care and skillful treatment.” [Hospital Association v. McKenzie, 104 Maine, 320.]

From the foregoing cases it must be taken as settled that public charities for the relief of persons who are made objects of the charity for reasons'other than their poverty, will be upheld.

The language of the case last cited, as to the purpose of the trust, does not differ materially from that of the bequest under consideration, and construing it, the court said: ‘ ‘ The rich should not be turned away because of their wealth, nor the poor because of their poverty.” And why is not that, as was the purpose of the testator in this case, the true spirit of public charity? It was said of old, “The poor always ye have with you; ”. and because of that -truth, and the need, want and distress which closely wait upon poverty, .the poor have always been, and ever will be, the chief concern of those who have means and are moved by the noble purpose of devoting it to the well-being of their fellow men. But sickness, pain and suffering are the heritage of all. We are continually attended by peril and may at any time, and when least expected, be stricken by misfortune and affliction. No man can be so rich or so circumstanced as to be exempt from this condition. And, if so overtaken, is charity to withhold its ministrations because the stricken sufferer may not be poor? Is the Samaritan to refuse to bind up-the wounds of the unconscious man on the wayside because he máy have means to pay a physician? Charity, whether public or private, sees the need, or want, or affliction, or suffering, and its first concern is to bring relief. The question of whether the recipient is able to pay is the merest incident and of minor importance. In the case under consideration; the ability of the sick or injured to pay may be regarded.as almost an intrusion into the high charitable purpose of-the benefactor, who would relieve “sick and injured persons, without distinction of creed.” Such a gift and for such a purpose, aside from the aid of the liberal rule of construction applied by the courts in such cases, comes well within the language of this court in upholding as public charities, ‘ ‘ gifts which are fo'r the amelioration of the condition of mankind.” Nor have counsel for appellants, with all of the ability, research and learning shown in their brief, called the attention of this court to a single case in which any court has pronounced a bequest made for such a purpose invalid and insufficient to establish a public charity.

The testator, gave directions that the bequest should be “under the auspices of the Methodist Episcopal Church South of the United States or its successor, and under such rules and regulations as said trustees and their successors, shall from time to time establish and maintain.” It was not necessary that the bequest should have been more definite as to the selection of the objects of the public charity, or for administering and carrying out the purposes of the gift, than it was made in this provision of the will. The sufficiency of the bequest in this regard, and the contention that the trustees are given such power as would authorize them to select the rich as patients and exclude the poor, are answered by the case of Chambers v. City of St. Louis, supra, in which the court, l. c. 589-590, said: “If, under such circumstances, the uncertainty of the persons to be relieved by a charitable fund could be available to destroy it, few charities could be sustained. If all the recipients of a charity could be designated with certainty at the time of its creation, there would be no necessity for a law for charitable uses different from that which governs all other trusts. The only difficulty in the way would be the law against perpetuities, and that would not exist where the donation in trust was made to a corporation. From the very nature of the subject, charitable gifts must be objects vague and uncertain. The subjects of the charity may be numerous and they are to be sought for and ascertained by those to whose discretion and judgment the dispensation of the relief is intrusted. The founder of a charity, by placing his fund in the hand of a competent trustee, designating the general object of the trust, with power to carry that object into effect, makes the trustee his substitute or delegate. Cannot any individual, who has the means, employ tliem for the relief of 'poor emigrants and travelers coming to St. Louis on their way to settle in the West?’ If he can carry out this charity himself, may he not appoint another to do it for him? Could it be objected to such a course that the trustee would not know how to act? As the donor of the bounty is willing to confide its management to the discretion of his agent, so long as that agent acts in good faith his acts are the acts- of his principal, and there is no one but the principal to complain. If the agpnt abuses his trust, he, like all other fiduciary agents, is subject to the control of the courts.” . . ■

The fact that bequests made for the payment of a sum to a relative of the testator monthly, and of another sum for the keeping of the burial lot of the donor in repair, were made charges upon a part of the fund bequeathed for the erection and maintenance of the hospital, is not important in its bearing upon the validity of the bequest. These bequests are not commingled with the purpose of the bequest for the hospital. They are merely charges upon the fund bequeathed to the trustees for the purpose of the principal charity and their .only effect is to diminish the available funds to that extent.

We have examined carefully the bequest involved in this litigation, and the many authorities of this and other courts cited as to the law governing the subject of public charities, and w'e have arrived at the conclusion that the testator, by the provisions of his will, created a valid public charity under the laws of this State. The charity thus provided for is .of such extent and of such possibilities for good among the people of the city where the testator lived, and where he directed it to be established, that there should be no unnecessary del ay in bringing to the ob jects of his bounty and solicitude the blessings of his praiseworthy gift.

Entertaining the foregoing views, the judgment should be affirmed. It is so ordered.

All concur, except Valliant, G. J., absent.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    PHIDELIA REYNOLDS et al. v. EDWIN E. REYNOLDS, Appellant.
    Division Two,
    April 11, 1911.
    1. SETTING ASIDE DEED: Wrong Theory: Right Result. Notwithstanding there were no facts to support the finding of the trial court that the defendant agreed, by the terms of the deed of trust executed by him, that, in the event he should fail to support his parents, their warranty deed to him should be void; and notwithstanding the court’s finding that the land was held in adverse possession by the grantors after the deed was made is supported neither by the facts nor the law, yet if thé judgment of the trial court setting aside the warranty deed can be sustained on any theory supported by the facts, it will be sustained, since the case is one in equity, and these errors do not affect the substantial rights of the parents.
    2. COVENANT: Subsequent Condition: Breach: Rescission. If by construing together a warranty deed from parents to a son, and a concurrent deed of trust by which, as the expressed consideration for the warranty, he agreed to support and maintain them during their lives, the agreement to support is seen to be a covenant, then the warranty deed should not be set aside, but the grantors should be left to pursue their proper remedy, namely, to sue on the covenant, and, if necessary, to foreclose the deed of trust. But if the agreement to support was a condition subsequent, then the grantors may maintain their suit to rescind, and, on proof that the agreement has been wholly unperformed, have both the deed and deed of trust set aside.
    3. -; -: Rescission: Construction of Contract: Intention: Forfeiture. Whether or not an agreement to support by a grantee in a deed is a subsequent condition or a covenant, must be determined by the intention of the parties as gathered from the language used, reading it in the light of the facts. Where there is a warranty deed and a deed of trust back to the grantors, given in pursuance of an agreement by the grantee to support the grantors, both must be read together as a part of the transaction and they must be read in the light of the surrounding circumstances, keeping in mind the object sought . to be attained. If yet the intention is doubtful the contract will be construed as a covenant, and not as dependent upon a subsequent condition, because a breach of the condition works a forfeiture, and forfeitures are not favored.
    4. CONDITION SUBSEQUENT: Warranty Deed: Rescission. Where a warranty deed recited “a consideration of five hundred dollars, to be paid by the grantee in maintenance,” and the grantee executed a concurrent deed of trust which expressed an agreement to support the grantors during their natural lives and recited said agreement as its consideration, and it is apparent from the facts that the grantee was to have the home place on condition of his supporting the grantors, his parents, and he did nothing more than any other child for two years, when # the father otherwise received a considerable sum of money and the son married and moved to his own place, and thereafter did nothing towards their support for many years, and they remained in possession, and all the facts indicate that the agreement had been abandoned almost as soon as made, it will be held to' be an agreement depending upon subsequent condition, and not being performed, both instruments will be set aside, though neither declared it was to be void for non-performance.
    Appeal from Linn Circuit Court. — Hon. John P. Butler, Judge.
    Affirmed.

      A. W. Mullins for appellant.
    (1) The deed was sufficient to and did convey the title to the land in question to the defendant. The consideration of five hundred dollars, recited in' the deed to be paid in maintenance, and the separate contract from the grantee to the grantors to support and provide for them during their lives, were both a good and valuable consideration for the conveyance. Anderson v. Gaines, 156 Mo. 664. Taking the most favorable view of the plaintiffs’ evidence, there was, at most, only a part failure by the defendant to fully perform and fulfill the contract — certainly no default by Mm in that regard for the first two years next after the contract was entered into. But a failure, if any, to comply with the terms of the contract by defendant did not render the deed void. The remedy is by an action at law for damages on the contract, and that remedy is ample because of the deed of trust on the land. McAnaw v. Tiffin, 143 Mo. 667; Anderson v. Gaines, 156 Mo. 664. (2) There is no condition of forfeiture in the deed to the defendant, nor has the contract made by him to support and provide for his father and mother any condition whatever in it to forfeit the title. And even if there had been in the deed or in the contract a condition to forfeit, the right to enforce forfeiture exists only at law; a court of equity never lends its aid to enforce a forfeiture. Messersmith v. Messersmith, 22 Mo. 369; Towne v. Bowers, 81 Mo. 497; Studdard v. Wells, 120 Mo. 25; Lasar v. Baldridge, 32 Mo. App. 362; Moberly v. Trenton, 181 Mo. 637. The so-called finding of the court is absolutely unsupported by the evidence in the case both on the part of the plaintiffs and on the part of the defendant, but contrary thereto. The contract made by defendant is valid and still subsisting and that was and is a good-and sufficient consideration for the deed of conveyance to him. And by what mysterious way or manner the title to the land conveyed to defendant was divested out of him and reinvested in said Daniel E. Reynolds prior to his death, is, I think, impossible to understand.

      Bresnehen & West for respondents.
    (1) Daniel E. Reynolds and the plaintiff in this case have been in the actual, open, notorious and adverse possession of the land in controversy, claiming to own the same continuously since about the time of the defendant’s marriage in 1887, when his father let him have the other eighty-acre farm. This being true, the plaintiffs have acquired title to said land by adverse possession. Wilkerson v. Eilers, 114 Mo. 245; Scruggs v. Scruggs, 43 Mo. 142-, Ekey v. Inge, 87 Mo.' 493. (2) The trial court has found the issue of title by adverse possession in favor of the plaintiffs, and, there being substantial evidence upon which to base that finding, its action in that regard is not open'to review by this court. Rice v. Arnold, 58 Mo. App. 97; Corrigan v. Kansas City, 93 Mo. App. 173; Baumhoff v. Railroad, 171 Mo. 120. The case has been fairly tried, all the issues have been determined by the court below in favor of the plaintiffs, and if the court could properly find for them on any ground its finding and judgment should be affirmed. We insist that the finding is for the right party on every issue, and that the judgment should be affirmed.
   FERRISS, J.

— Suit to set aside a warranty deed to forty acres of land in Linn county, Missouri.

Plaintiff Phidelia Reynolds is the widow of Daniel E. Reynolds, who died intestate in 1893. All the other parties plaintiff and defendant are the children and heirs of said Daniel E. and Phidelia Reynolds. The land in controversy was owned by Daniel E. Reynolds, deceased, he having purchased the same from the Hannibal & St. Joseph Railroad Company in 1883. Defendant, his eldest son, became of age in 1881, and for several years before and after reaching his majority was the mainstay of the family.

On April 24, 1885, defendant’s father and mother, the said Daniel E. and Phidelia Reynolds, conveyed to him, by warranty deed, the land in question, the consideration named in the-deed being “the sum of five hundred dollars, to be paid by the said party of the second part in maintenance.” On the same day defendant executed a deed of trust on said land, as follows:

“This deed, made and entered into this 24th day of April, eighteen hundred and eighty-five, by and between Edwin E. Reynolds, of the county of Linn and State of Missouri, party of the first part, and Ben Wade, the present acting sheriff, and his successor in office, of the county of Linn, State of Missouri, party of the second part, and Daniel E. Reynolds and Phidelia Reynolds, his wife, during their natural life, of the county of Linn, State of Missouri, parties of the third part:
“Witnesseth, that the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, the following described real estate: Southwest quarter of section 2, township 58, range 18, situate, lying and being in the county of Linn, State of Missouri, to-wit: being the southwest quarter of the southwest quarter of section 2, township 58, range 18, being forty acres.
‘ ‘ To have' and to hold the same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to them and their grantees and assigns forever.
“In trust, however, for the following purposes: Whereas Edwin E. Reynolds, the said party of the first part, has this day made, executed and entered into an agreement, which is hereby witnessed by this agreement, that he will faithfully support and maintain Daniel E. Reynolds and Phidelia Reynolds, during their natural lives, with the necessaries of this life, in sickness or health, the consideration for this agreement is that Daniel E. Reynolds and Phidelia Reynolds have this day executed and delivered to Edwin E. Reynolds a good and sufficient deed of warranty to the forty acres described in this instrument, the consideration for said deed of warranty being the agreement of Edwin E. Eeynolds to support them during their natural lives. Now, therefore, if the said party of the first part shall faithfully perform and fulfill said contract hereby entered into by him, then this deed shall be void, otherwise to remain in full force and effect. Witness my hand and seal this 23d day of April, 1885'.
‘‘Edwin Eeynolds. (Seal.) ’ ’

The warranty deed, duly acknowledged, was filed for record February 7, 1887, and the trust deed on December 20,1905, in the office of the recorder of deeds • of Linn county.

According to the testimony of Mrs. Eeynolds, her son, the defendant, was twenty-five years of age when the land in suit was conveyed to him. Two years thereafter he married, removed from the homestead, and dwelt with his wife on an eighty-acre tract of land, near by, which was given him by his father, Daniel E. Eeynolds. Whether this eighty acres was ever deeded to defendant witness could not remember. She further testified as to the land in dispute: “We always claimed the land as ours, and paid the taxes on it. Since Mr. Eeynolds died I have improved it and built buildings on it. There isn’t anything there now that was there when he deeded it to Ed., only a few old apple trees. I put all the improvements on it. Ed never said anything about claiming any right to the land. We supposed it was ours, and we thought he took the other eighty. He did nothing to support us after he got married. I couldn’t tell exactly what, if anything, he did towards supporting us before he got married. Of course he helped about the work, and he paid money I suppose. I don’t remember; I have never charged my mind with it. He paid no board, and lived there as a member of the family. He and the other boy worked there together. I didn’t see any difference between them.” She stated that her husband, who was an old soldier, received a pension of six or eight dollars a month in 1887, which was gradually increased to seventeen dollars a month, and that he also received a lump sum of eleven or twelve hundred dollars as back pay; that this money was used to pay debts previously contracted and for family support; that her husband died in 1893, and her son, defendant, two years afterwards, went to Minnesota, where he resided eight years. Upon his return .to Missouri he made his home in Johnson county, where he was residing at the time of the trial. Witness could not say that defendant paid any debts contracted by her husband, after he received his pension, but that he used to pay debts before that time. In 1895 defendant deeded to her forty acres of land which he had purchased from a railroad company in 1888, and upon which he had placed a mortgage for $250'. At the time defendant conveyed this land to her he was indebted to her husband on a note for about $480, which note she surrendered to defendant, and he tore it up. The land so deeded to her adjoined the forty acres in controversy. Mrs. Reynolds further testified that, after her husband died, it required her pension and the use of the two forty-acre tracts of land to support herself and her three young daughters. She did not know, nor was it ever mentioned by defendant, that the land conveyed to her was intended as a means of support. The use and rents of the two pieces of land would not, she testified, be sufficient to maintain 'her.

Defendant testified in substance that business was transacted ifi his name, after he became of age, and that he was responsible for and paid the debts of the family; that the last debt paid by him was in 1891, when he paid a balance due on a note for $58'. His father paid $400' for the land which was conveyed to him. The forty acres which he deeded to his mother was purchased for $190 from the Hannibal & St. Joseph Railroad Company, and he placed a mortgage on it for $250. This land was, in his opinion, worth $600 when he conveyed it to his mother for her use, benefit and support. Beyond this, he contributed nothing to her support from the time he left for Minnesota. He did not remember' owing his father a note, nor getting any note from his mother and tearing it up; but he did remember getting some money from his father, the amount of which he does not state. He did not pay it back, but paid debts to that amount. There was no complaint made of the contract with his father and mother until about six months before the trial, when his mother talked to him about' it. She never complained to him that she needed anything for support and maintenance. Defendant did not contradict or refer to the testimony of his mother to the effect that defendant’s father gave him eighty acres of land about the time of his marriage, and that defendant built a home thereon. This land, she stated, was separate and distinct from the land in controversy.

Two'of defendant’s witnesses testified that after defendant was grown, and until his marriage, he was managing head of the household and that the family largely depended on him to carry on the business. It was the understanding of these witnesses that Mrs. Reynolds claimed the land in question as hers from the time of her husband’s death, and that the taxes were paid by her. One of the witnesses testified that the land in dispute was worth from eight hundred to a thousand dollars when Mr. Reynolds, defendant’s father, died, and that the rental value of this, and the forty acres conveyed by defendant to his mother was about two dollars an acre per year. Another witness testified that the use of the eighty acres was worth about a hundred dollars a year.

The court below found as a fact that the defendant had “wholly failed, neglected and refused to perform his said agreement to support, maintain and furnish with the necessaries of life the said Daniel E. and Phidelia Reynolds;” also that “the said Daniel E. Rey-, from the 24th day of April, 1885, until his death on the-day of-, 1893', was in open, notorious, exclusive, adverse and hostile possession of said land.” The court further found that the defendant, by his written agreement in evidence, agreed that, in the event he should fail to support his parents, the said warranty deed was to become-null and void. The court found and decreed as a matter of law that the consideration for said warranty deed had wholly failed, and that said deed was null and void; that the plaintiffs, other than Phidelia Reynolds, and the defendant, upon the death of Daniel E. Reynolds became, and now are, owners of said land in fee as tenants in common, each owning an undivided one-seventh thereof, subject only to the dower and homestead rights of said Phidelia Reynolds: The court further decreed the warranty deed to be a cloud upon the title, and ordered the same removed.

It is objected, and assigned as error, that (1) the finding of facts is not supported by the evidence, and (2) that the evidence is insufficient to support the decree.

The finding of the court that Daniel E. Reynolds held the land in adverse possession is supported by neither the facts nor the law. There was no adverse possession, upon any theory of the case. Nor do the facts support the finding that the defendant agreed, by the terms of the trust deed executed by him, that in event he should fail to support his parents their warranty deed should be void. We cannot understand upon what theory of fact the court made this finding. If by such finding the court meant to give a legal construction to the two instruments read together, such intention is certainly not clearly expressed. However, if the judgment of the court setting aside the warranty deed, and decreeing the respective interests of the. parties to the land, can he sustained upon any theory, supported hy the facts, it should be sustained, notwithstanding the above erroneous findings of fact.

This is an equity ease. We have all the facts before ns. We are not disposed to send cases back for retrial because of errors' committed which do not affect the substantial rights of the parties. If the decree in this case is for the right party, we will be disposed to let.it stand.

The real question in the case is this: Construing the two instruments together in the light of the evidence and the purpose sought to be accomplished, does it appear that the agreement of defendant to support his parents was a condition subsequent? If this question be answered in the affirmative, then, under the finding that the agreement to support was wholly unperformed, the warranty deed should be set aside. The case of Anderson v. Gaines, 156 Mo. 664, cited by appellant, while it refuses to set aside the deed involved in the case because of failure to show a condition subsequent, concedes the right to rescind in a proper case. The court says (l. c. 670): “It was competent for the parties if they had seen fit to so agree to make the performance of the promise a condition precedent to the vesting of the estate, or its non-performance a condition subsequent for which the estate might be divested.” So Haydon v. Railroad, 222 Mo. 126, proceeds on the theory that where the promise is a condition subsequent, its breach will authorize rescission, although in that case it was held that the promise was a covenant and not a condition, and therefore rescission was denied. If, on the other hand, the agreement to support was a covenant merely and not a condition, then the suit should be dismissed, and the plaintiff, Phidelia Reynolds, should pursue her proper remedy, namely, suit on the covenant and, if necessary, foreclosure of the deed of trust given to secure same. It is the general rule that conditions subsequent are not favored in law, and in doubtful eases a clause will be construed as a covenant rather than a condition, because a breach of a condition works a forfeiture, and has the effect of disturbing vested estates. Yet the rule is not a rigid one. The construction must be according to the intention of the' parties as gathered from the language used, reading it in the light of the facts.

In the case of Studdard v. Wells, 120 Mo. l. c. 29, Black, J., speaking for the court, says: “It,, is a familiar rule often asserted in the books that conditions subsequent are not favored in the law, because they have the effect, in case of breach, to defeat vested estates ; and when relied upon to work a forfeiture they must be created in express terms, or by clear implication. . . . It is also true that the question whether a clause in a deed is a condition or a covenant is one of intent to be gathered from the whole instrument by following out the object and spirit of the deed or contract. ’ ’

The above is quoted with approval by Lamm, J., in Haydon v. Railroad, 222 Mo. l. c. 139. Judge Lamm says in the latter case, l. c. 140: “We are left to an interpretation of the contract by the good sense of the thing in the light of its subject-matter and language used;” He also quotes the following from Freeland v. Mitchell, 8 Mo. 487: “The only principle to be extracted from the numerous cases in relation to the dependence or independence of covenants is, that they are to be construed according to the intention and meaning of the parties and the good sense of the case.”

It will thus be seen that the earliest and latest expressions of this court meet in the rule last above formulated, and we may safely take it as a guide in investigating the present case. The two instruments must be read together as parts of the same transaction, and they must be read in the light of the surrounding circumstances, keeping in mind the object sought to -be attáined. The parties sought to secure the support of the parents by the son, and in consideration thereof to transfer to the son the homestead. Doubtless this was in expectation that the son would remain at home, and continue to do as he had been doing. It is apparent that the son was to have the farm on condition of his supporting his parents. There was no express condition, nor provision in either deed for forfeiture. The agreement to support went to the entire consideration of the warranty deed. In such case the covenants are held to be mutual conditions. [Union Pac. Ry. v. Ins. Co., 49 U. S. App. 752.] Under the facts, as found by the court, the consideration wholly failed. The defendant, therefore, failed to comply with the condition on which the warranty deed was made. When the son married he sought his own independent future. He moved to the farm which his father gave him. He contributed nothing further to the support of the family. The father had a windfall in the shape of eleven or twelve hundred dollars back pension, received about the time the son left home. From that time on he also received a monthly pension. Doubtless it was felt that the aid of the son was no longer needed. The arrangement for support was practically abandoned. The old folks remained on the farm. The mother is there still. . She has paid the taxes, made improvements, and claimed the land as hers. The conduct of defendant during all these years is consistent only with the theory that he had abandoned the contract, and thereby given' up all claim to the land.

Applying the doctrine announced above, that the contract is to be interpreted “by the good sense of the thing in the light of its subject-matter and language used,” we are satisfied that the good sense of the thing is to hold that these parties contemplated that the son was to get the farm only on condition of support for life; that this condition failing, the warranty deed ought to fail. •

The law invoked by appellant upon the proposition that equity will not enforce forfeiture, does not apply in a case like this where the grantors have never been out of possession. There is no occasion for forfeiture or re-entry. We think the decree properly annulled and cancelled the warranty deed, and correctly declared the respective interests of the parties.

The judgment is affirmed.

Kennish, P. J., and Brown, J., concur.


text:
    EDWARD AULL v. OTTO M. GAFFIN et al., Appellants.
    Division Two,
    April 11, 1911.
    1. FRAUDULENT CONVEYANCE: Honest Debt: Preference. Where the grantee does not take the property with intent to aid the debtor to defraud his other creditors, but solely to pay himself, the intention of the grantor cannot affect the rights of the grantee as against creditors, if the debt is honest and the security not excessive. And in such case the debtor may prefer one creditor to another. But neither of those propositions is involved in a conveyance to a wif§ to whom the grantor owed no debts.
    2. -: To Wife: As Separation Settlement. Whether or not a conveyance by a husband to a wife, in consideration of her agreement to support and care for their children, is good as against his creditors, need not be decided, if they had agreed to separate on account of domestic difficulties, ánd a few weeks after the deed was executed they became reconciled and have since lived together.
    3. -: -: Sufficient Evidence. A creditor recovered • judgment for $547.03 against a husband, and execution was levied on land worth from $5000 to $7500, but mortgaged for $5250; and plaintiff, another creditor, to the amount of $2653.19, bought the property for $625, and received a sheriff’s deed, and brings suit to have a deed made without consideration, by the husband to his wife, before the first suit was brought, set aside as in fraud of creditors. At the time the deed was made the husband was indebted to various creditors for about $10,000, and was then insolvent, and this fact the wife knew. Held, first, that plaintiff, being the purchaser at the execution sale, is not to be regarded as a mere general creditor; and, second, the evidence was sufficient to support the finding that both the husband and wife intended by the conveyance to defraud his creditors.
    Appeal from Lafayette Circuit Court. — Eon. Samuel Davis, Judge.
    Affirmed,

      U. G. Phetsing for appellants.
    (1) If the debt is honest and the security not excessive, the intention which prompted the making of the deed can in no wise affect the question of its validity or of its invalidity in a controversy with other creditors. Bangs'Milling Co. v. Burns, 152. Mo. 350; Bant v. Russey, 74 Mo. App. 651. (2) A debtor may prefer one creditor over another by transfer of property, provided the property is taken in satisfaction of a just demand and not as a mere screen to secure the property to the debtor himself. Wall v. Beedy, 161 Mo. 625; Scott Hardware Co. v. Riddle, 84 Mo. App. 275. (3) The value of all the property (as testified to) owned by appellant varied from $5000' to $7500. The Commercial Bank debt with interest amounted to not less than $5000'. (4) Respondent was a mere general creditor, therefore cannot maintain this action as far as his debt is concerned or referred to in the decree. Ready v. Smith, 170 Mo. 170; Davidson v. Dockery, 179 Mo. 695.

      Alexander Graves for respondent.
    (1) The answers of both the G-affins ignore all pecuniary consideration upon which to base the deeds, and aver that they were to separate and live apart, the wife taking the children. The answer of Otho Gaffin contained the following: “Avers that said sale was made in good'faith for the sole purpose of providing for his wife and children.” The answers of Laura Gaffin contained the following: “Avers that said sale and conveyance was made for a valuable consideration in good faith and for the only purpose of providing for her and their children, with no intent to hinder, delay, or defraud any person or any creditors of Otho M. Gaffin. ’ ’ But- the evidence shows that they lived apart only six weeks and became reconciled. This reconciliation destroyed the alleged consideration of the deeds and rendered them voluntary. Kehr v. Smith, 20 Wall. 31; Wells v. Stout, 9 Cal. 498; Carson v. Murray, 3 Paige Ch. 501; Zimmer v. Settle, 124 N. Y. 337; Sheltar' v. Gregory, 2 Wend. 422; Hindly v. Westmath, 2 Barn. & Cress. 200; Roberts v. Hardy, 89 Mo-" App. 93. (2) The petition charges that at the date of the deeds Gaffin was in debt several thousand dollars (the evidence shows over $10,000) and that he was wholly insolvent at and before the date of the deeds. The answers neither deny the charge of indebtedness nor insolvency. Nor does either Gaffin or wife (who alone testified for the defense) undertake to show that he owned any other property after the execution of these deeds. The reconciliation rendered them voluntary as above shown; and a voluntary deed is null and void, regardless of thé intent, as to existing creditors. White v. McPheters, 75 Mo. 289; Vogel v. Pauley, 42 Mo. 303; Dunlap v. Mitchell, 80 Mo. App. 397; Ridenour v. Poree, 71 Mo. 354; Snyder v. Pee, 114 Mo. 369; Balz v. Nelson, 171 Mo. 682; Hoffman v. Nolte, 127 Mo. 135; Clark v. Thais, 173 Mo. 628; Morgan v. Wood, 38 Mo. App. 257; Robinson v. Robards, 15 Mo. 459; Needles v. Pord, 167 Mo. 503; Bank v. Nichols, 202 Mo. 310. (3) Nor does the fact that by the deeds Laura Gaffin was required to assume the indebtedness, secured by deed of trust, which her husband owed the Commercial Bank, aid the defendants, or validate the deeds. Dunlap v. Mitchell, 80 Mo. App. 397. (4) While both answers aver that the sole purpose of the deeds was to furnish support to the wife and children, Gaffin testified that some 14 years before the execution of the deeds he borrowed $200' of his wife. The purpose of this evidence, under the state of the pleadings, is not apparent. But whatever its purpose was, that purpose was defeated when Mrs. Gaffin testified that the $200 was used for the living expenses of the family. But if it is intimated that this $200' is a valuable consideration with a view of supporting these deeds, then the consideration is inadequate in view of Gaffin’s insolvency and as to existing creditors; and of itself constitutes a badge of fraud. Morgan v. Wood, 38 Mo. App. 260; Needles v. Hoard, 167 Mo. 504; Bank v. Nichols, 202 Mo. 310; Robinson v. Robards, 15 Mo. 459; Balz v. Nelson, 171 Mo. 682. (5) Considering that Gaffin testified specifically that the separation took place from the 5th to the 15th of November, 1904, and that they were reconciled within two weeks, the separation resembled a fiction coincident with the 11th of November, 1904, the date of the deeds. If any part of the consideration is fictitious, then as to creditors the conveyance is void. Tube Works v. Machine Co., 112 Mo. 376; State ex rel. v. Hope, 102. Mo. 429. (6) The plaintiff, himself a creditor, was the purchaser at execution sale of Moorehead, and stands in the .shoes of the execution creditor. Ryland v. Kellison, 54 Mo. 514; Rinehart v. Long, 95 Mo. 401.
   FERRISS, J.

— On March 20, 1905, James R. Moorehead, in the circuit court of Jackson county, recovered judgment for $547.03 against appellant Otho M. Gaffin. Under said judgment execution issued directed to the sheriff of Lafayette county, and was by him levied upon the interest of said appellant in a tract of land containing twelve and a half acres which, together with improvements, was worth- from $5000 to $7500, but mortgaged for $5250. At the sheriff’s sale respondent, being Gaffin’s creditor to the amount of $6253.19, bought the property for $625, and received a deed from the sheriff.

This suit was brought by respondent to set aside a conveyance of this property made by appellant Gaffin to his wife on November 11, 1904, on the ground that the same was made to defraud creditors. At the date of such conveyance appellant Gaffin was indebted to various creditors for about $10,000', and was then insolvent. The conveyance to the wife of appellant recited a consideration of one dollar.

The appellants pleaded in their answers, and introduced evidence tending to prove, the following facts: That on November 11, 1904, appellant Otho M. Gaffin and his wife, Laura, on account of domestic difficulties, agreed to separate, she to assume the care and support of their children, five in number; that the transfer to her was in consideration of this agreement, and for the sole purpose of providing for the wife and children; that the appellant Laura had no intention to assist her husband to defraud his creditors; that by the terms of such conveyance she, Laura, assumed and promised to pay the indebtedness secured by mortgage on the land.

The appellant Laura testifies that she knew of the debts owing by her husband at the time of the conveyance. It further appears from the testimony of appellants that husband and wife were separated for six weeks only, after which time they became reconciled, and lived together; also that Mrs. Gaffin had at some ' previous time, not specified, let her husband have $200 which he used in his business. When asked whether he ever repaid this, she said: “No more than a living.” All the children were working except the youngest who was at school. Neither answer pleaded this alleged indebtedness of $200.

The decree of court found that the conveyance from husband to wife was made in fraud of creditors, and set the same aside. There is no assignment of errors.

Appellants assert: 1. That if the debt is honest, and the security not excessive, the intention of the grantor cannot affect the rights of the grantee as against creditors. 2. That a debtor may prefer one creditor to another. 3. That the respondent was a mere general creditor.

The first two propositions correctly state the law in a ease where the creditor does not take the property Avith intent to aid the debtor to defraud his creditors, but solely to pay himself. The third proposition is not involved in the case, as respondent is a purchaser at execution sale. Neither of the foregoing propositions touch the case.

It is contended that there is no evidence to support the finding of the court. Whether a conveyance to a wife, who is living apart from her husband, in consideration of her undertaking to support their children, is good as against creditors, we need not decide, because the testimony shows that, in view of the- speedy reconciliation which followed the alleged separation, there is practically no such situation presented here. In view of the pleadings, the court was justified in rejecting the claim that the alleged debt from the husband to the wife constituted a consideration. But even if it were a valid debt, it was entirely disproportionate to the value of the equity in the property.

The evidence is sufficient to support the finding of the court that both husband and wife had the intent and purpose to defraud his creditors. Upon such finding, the deed should be set aside, regardless of the question of consideration.

The judgment is affirmed.

Kennish, P. J., and Brown) J., concur.