Lackland v. Walker

52 S.W. 414, 151 Mo. 210, 1899 Mo. LEXIS 311

• Court: Supreme Court of Missouri
• Decided: June 30, 1899
• Status: Published

Opinion

OPINION.

L. O. KRAUTHOEE,

Special Judge, after stating the facts as above, delivered the opinion of the court:

I. It is indisputable, and, indeed, it is conceded, that:

(a) Henry Shaw’s devise of property to constitute “a Botanical Garden, with a museum and library connected therewith,” so as to provide “for the use of the public a Botanical Garden easily accessible, which (shall) be forever kept up aud maintained for the cultivation and propagation of plants, flowers, fruit and forest trees, and other productions of the vegetable kingdom, .and a museum and library connected therewith and devoted to the same, and to the science of botany, horticulture, and allied objects,” to be preserved “to the. use and enjoyment of the public for all time,” ■or, as described in another paragraph, “a botanical garden for the propagation and cultivation of specimens of plants, flowers and fruit and forest trees, for the promotion of science and knowledge, . . . for the use of the public at large” and the directions of his will to “establish public lectures upon botany and its allied sciences,” coupled with provisions for the enlargement of said garden, museum and library, and for the establishment of a fully equipped “school of botany (in connection with Washington University at the City of St. Louis) for the promotion of education and investigation in that science and its application to horticulture, arboriculture, medicine and the arts, and for the exemplification of the Divine Wisdom and Goodness throughout the vegetable kingdom,” and for “instruction to garden pupils, . . . both in practical and scientific horticulture, agriculture, and arboriculture,” as also for keeping up “the ornamental and floriculture character of the garden” and for “scientific investigations in botany proper, in vegetable physiology, the diseases of plants, the study of the forms of vegetable life and of animal life injtirious to vegetation, (and) experimental investigations in horticulture, arboriculture, etc.,” define a charity in the fullest sense of the term, and create a charitible trust of the most unimpeachable character (State ex rel. v. Academy of Science (1883) 13 Mo. App. 213, 216 ; Missouri Historical Society v. Academy of Science (1887) 94 Mo. 459, 466 ; Trustees of the British Museum v. White (1826) 2 Sim. & S. 594, 596 ; United States v. Drummond (the ease of the Smithsonian Institute), summarized in Whicker v. Hume (1858) 7. H. L. Cas. at 155 ; Perin v. Carey (1861) 24 How. 465, 506 ; Jackson v. Phillips (1867) 14 Allen, 539, 551, 552 ; Beaumont v. Oliveira (1869) L. R. 4 Ch. 309, 313, 315 ; Russell v. Allen (1882) 107 U. S. 163, 167 ; Re Holburne (1885) 53 L. T. 212, 214, 215 ; Re Berridge (1890) 62 L. T. 365 ; affirmed (1890) 63 L. T. 470 ; 2 Pom. Eq. Jur. (2 Ed.) sec. 1023);

(b) It has been long settled, and is most firmly established, that a trust of this nature will be recognized, protected, and enforcéd by the courts of chancery of this State as a part of their general jurisdiction over such trusts- — a jurisdiction which is not based upon and which does not need the support of Stat., 43 Eliz., c. 4; and, also, that the testamentary provisions above referred to do not depend for their validity upon the enabling enactment of March 14, 1859, and derive no additional stability by reason thereof .(Chambers v. St. Louis (1860) 29 Mo. 543 ; Academy of Visitation Clemens (1872) 50 Mo. 167 ; Goode v. McPherson (1872) 51 Mo. 126 ; Schmidt v. Hess (1875) 60 Mo. 591 ; Howe v. Wilson (1886) 91 Mo. 45 ; Missouri Historical Society v. Academy of Science (1887) 94 Mo. 459 ; Powell v. Hatch (1890) 100 Mo. 592 ; Barkley v. Donnelly (1892) 112 Mo. 561 ; Sappington v. School Fund Trustees (1894) 123 Mo. 32 ; Women’s Christian Association v. Campbell (1898) 147 Mo. 103), and,

(c) This part of. the will of Henry Shaw operated as an immediate devise of the property affected thereby to the trustees therein named, and his heirs at law at no time and under no circumstances can acquire or successfully assert any interest therein (Sohier v. Trinity Church (1871) 109 Mass. 1, 19 ; Ould v. Washington Hospital (1877) 95 U. S. 303, 316 ; In re John’s Will (1896) 30 Or. 494, 516, 526 ; Attorney-General v. Earl of Craven (1856) 21 Beav. 392, 410). Hence these heirs were not necessary parties to this suit (Barkley v. Donnelly (1892) 112 Mo. 561). The public is the beneficiary of the "trust, and the Attorney-General, as its representative, was the only real party in interest or required to be made a defendant (Women’s Christian Ass’n v. Campbell (1898) 147 Mo.. 103 ; Jackson v. Phillips (1867) 14 Allen, 539, 579).

H. The power of a court of chancery to vary the precise terms of a charitable trust, has been much discussed. The present case does not call for a further amplification of the rules recognized in the cases heretofore determined by this court, in respect of occasions or reasons for the application of the cy pres doctrine, so-called, to instances where the object of the testator can not be literally accomplished, or not in the precise mode pointed out by him. Here, the object — the charity — was in esse at the testator’s death, and it remains wholly unchanged and unimpaired; and the mode pointed out in the will for accomplishing and maintaining that object is not at all involved on this appeal. The difficulty which has arisen in the execution of the present trust is of an administrative character, i. e., if it be true, in point of fact, that it is impossible (in a legal sense) for the trustees to observe the directions of the will that given tracts shall not be absolutely aliened by them, but let permanently only upon building leases of the character mentioned, or if an exigency has developed which renders it necessary to sell all or a part of the property in question, must the present application be denied, be the resultant consequences to the charity itself what they may ? In case the provisions concerning the object of the trust — the charity itself — and the directions as to the manner of administering its endowment, can not both be observed, is it within the power of a court of chancery to meet the emergency alluded to, and to exercise a supervising jurisdiction for the protection of the charity and its endowment? The counsel who has so zealously asserted the rights of the Attorney-General on this appeal candidly concedes, in respect of ordinary and proper cases, that the power and jurisdiction referred to have been overwhelmingly established by authority. But he insists that relief can not be granted in the present instance, (a) because the courts of Missouri have been ousted of their ordinary jurisdiction in such circumstances by force of the act of March 14, 1859, and, in the alternative, (b) that the evidence does not present a state of facts warranting the grant of relief in the present case.

Equally because the decree we have conclxxded to direct must serve as a muniment of title, and in order that the principles which .are, to govern the future administration of this charity, and as well in other cases of the same character, may be firmly settled, it is deemed preferable not to rest content with a mere acquiescence in the concession thus made. Looking to the testamentary provisions under consideration, it is clear that the maintenance, development, ,and extension of the Botanical Garden constituted the all-dominant purpose of the testator. Certainly as long ago as 1859, Henry Shaw contemplated and apparently had determined upon the establishment of this charity. He devoted many years of his life and large sxuns of money to this object. In the first clause of his will he clearly indicated that it had long been his dearly cherished design to “provide for the use of the public, a Botanical Garden, easily accessible, which should be forever kept np and maintained,” and “to preserve the same to the use and enjoyment of the public for all time.” To these ends, he enjoined that “said trustiees shall forever keep certain portions of the lands described” as a Botanical Garden “for the use of the public at large; . . . for the use of the citizens of St. Louis as well as the public in general.” Throughout, the will speaks an emphatic intention that the charity shall be enlarged, both in respect of the land to be devoted to extensions of the garden and of the scientific field to be covered by the various facilities for which provision is made. Mr. Shaw has made it clear’, also, that his purpose in. devising the six parcels in question and the business and other properties mentioned in the third clause of his will, was to perfect his “endowment” of the Botanical Garden. Prom the fact that nearly all of his large fortune consisted of real estate, it is apparent that Henry Shaw had a decided preference for that form of investment, as a means to an assured income. He seems, likewise, to have been a believer in the system of granting ground leases for long periods, with covenants for the perpetual renewal thereof. But it is to be observed that he not only realized the necessity of improving real estate in order to make it productive, but that his purposes also were (a) that the six parcels in question should be made to “afford an income or revenue for the support of the said Botanical Garden,” and (b) that in accomplishing this result care should be taken that “by its improvement, its contiguity may be pleasant and attractive to the visitors and students of the Botanical Garden.” The permission to let the property “on short leases to nurserymen, florists, A'-egetable gardeners, and others,” was clearly intended to serve as a temporary arrangement until prevailing conditions might enable the trustees to “profitably lease (the same) for building purposes.” It is therefore manifest that next in importance to the dominant purpose above indicated, was an intention on the part of the testator to secure the improvement of this vacant property, first, in order that it might bo made productive of an income — be made -an endowment, in fact as well as in form; and second, that in and by its improvement the beautification of the surroundings of the Botanical Garden should be accomplished. It is necessarily implied, also, that the use of the tracts for any purpose calculated to produce a condition deleterious to the development of an ideal botanical garden with its numerous tender and exotic plants, was intended to be forbidden. These ends the testator evidently believed could be realized by means of building leases “for a term not exceeding sixty years, with a provision in such leases for the perpetual renewal thereof for succeeding terms of not more than sixty years.” In connection with the provision to this effect the trustees were denied the power to make any other or different alienation of the tracts in question. It is to be carefully observed that the testator did not so phrase these provisions as to make them conditions, either precedent or subsequent; they are prescribed merely as administrative limitations in respect of the management of the trust, and must be taken to have intended to further and to advance the dominant purpose of the will — the maintenance and enlargement of the charity mentioned (Attorney-General v. Wax Chandler’s Company (1873) L. R. 6 H. L. 1, 19, per Lord Cairns; Wright v. Wilkin (1860) 2 B. & S. 232 ; Brown v. Baptist Society (1869) 9 R. I. 177, 186, 188 ; Russell v. Allen (1882) 107 U. S. 163, 166, 167 ; Mills v. Davison (1896), 54 N. J. Eq. 659, 664-666 ; Hopkins v. Grimshaw (1897) 165 U. S. 342, 356, per Mr. Justice Gray).

Again, the very leases directed to be made by the testator, for as long as sixty years, with covenants for a perpetual renewal thereof, would operate as a substantial alienation of the premises; for the execution by the trustees of a lease of this nature would be the equivalent, in legal effect, of an alienation of the property (Lydiatt v. Foach (1700) 2 Vern. 410 ; Attorney-General v. Brooke (1811) 18 Ves. 319, 326 ; Attorney-General v. Ward (1829) 7 L. J. Ch. 114, 119 ; Attorney-General v. Hungerford (1832) 8 Bligh N. 3. 463, 468, n; affirmed, (1834) 8 Bligh N. S. 437 ; s. c. 2 Cl, & E. 357, 376 ; Attorney-General v. Pilgrim (1850) 2 Hall & Tw. 186, 188). Hence, the intent of the testator was not to forbid an alienation of any nature whatever. On the contrary, the necessary effect, and therefore the intention of the will, was not only to permit, but to expressly direct, an alienation in substance. And it is to be noted that the testator’s language on the subject bears strong internal evidence of having been carefully chosen so as to deny only to the trustees the power to exercise a power in respect of a different form of alienation. The language used is inapt to express an intention that no such other alienation should occur, whatever the circumstances; much less does it declare that a court of chancery shall not exercise the jurisdiction which it may have in the premises, even upon a proper showing that the precise form of alienation mentioned in the will was impossible to be utilized in practice, and that a literal adherence to the restrictions in that behalf would probably result in the defeat of or serious embarrassment to the charity whose welfare was' the clearly expressed controlling purpose of the testator.

The concrete question, therefore, is whether, upon a proper showing, a court of chancery has the jurisdiction to authorize an out and out alienation of the property affected by the provisions of the will in question. Primarily, it is clear that this involves no phase of what is known as the prerogative power of cy pres; for here there are a defined charity, a clear trust, and competent trustees to hold the property to that end. (Moggridge v. Thackwell (1803) 7 Ves. 36, 86 ; Ommanney v. Butcher (1823) 1 Turn. & Russ. 260, 270 ; American Academy v. Harvard College (1832) 12 Gray, 582, 596 ; Mormon Church v. United States (1890) 136 U. S. 1, 55). Nor is it an instance which calls for the exercise of the usual judicial power of cy pres, so broadly recognized and ■established by the former decisions of this court, supra; for here the mode of accomplishing the charity, properly speaking, to wit: the provisions for the maintenance and extension of the Missouri Botanical Garden, under the supervision of the trustees named, and for the accomplishment, in other respects, of the charitable ends mentioned in the will, are complete and not sought to be departed from (Attorney-General v. Boultbee (1794) 2 Ves. 380, 387, 388 ; Moggridge v. Thackwell (1803) 7 Ves. 36, 69 ; Mills v. Farmer (1815) 1 Mer. 54, 99 ; Attorney-General v. Earl of Craven (1856) 21 Beav. 392, 409, 410 ; Jackson v. Phillips (1867) 14 Allen, 539, 574, 593 ; 2 Perry, Trusts (4 Ed.), sees. 718, 722, 727, 729). The petition invokes the exercise of tho court’s power of administration in respect of the forms to be observed in accomplishing and furthering both the object and mode prescribed by the testator. Broadly speaking, the expression “cy pres power” defines a limitation as well as an affirmative authority. Where the case is one in which the chancellor can act in his judicial capacity, as distinguished from the power exercised in the English system by the Lord Chancellor as the representative of the Crown’s sign-manual, the jurisdiction over charities is an inherent one, i. e.,while courts of equity, as such, possess no power to create a charitable trust, they liberally exercise a jurisdiction to enforce and preserve such a trust when it is valid in its creation. In exercising this jurisdiction, the courts proceed cy pres: They give effect to the expressed charitable purposes of the donor as near as may be; and in supplying or remedying the defects disclosed in practice they act in effectuation of the controlling purpose disclosed by the instrument presented for construction, so as to preserve and make useful “what may be called the spirit of the charity” (In re Campden Charities (No. 2) (1883) 24 Oh. D. 213, 218, per Ohitty, L. J.). It is a natural and necessary branch of the jurisdiction over charitable trusts that the means or details prescribed for their administration should be subject to be molded so as to meet .any exigency which may be disclosed by a change of circumstances, and to relieve the trust from a condition which imperils or endangers the charity itself or the funds provided for its endowment and maintenance. Here, too, a court of equity will approximate as nearly .as may be the expressed wishes of the founder. ^ But, in the very nature of things the jurisdiction merely “to vary the details of administration” is more liberally exercised (Jackson v. Phillips (1867), 14 Allen, 539, 580, per Mr. Justice Gray), and indeed is perhaps more firmly established and more widely recognized than is that which is usually called the cy yres power of the court. “It is plain that there is a wide distinction between ;a< deviation from the founder’s intention as to the objects of the charity, and a deviation from the directions as to management, which were no doubt originally meant to be governed by circumstances” (1 Lewin, Trusts, 546 ; Brown v. Baptist Society (1869) 9 R. I. 177, 187, 188 ; Sear's v. Chapman (1893) 158 Mass. 400). “There is manifestly a distinction between the scheme of charity .and a scheme for administering it” (In re John’s Will (1896) 30 Or. 494, 52Y; Dailey v. New Haven (1891) 60 Conn. 314, 321, 322).' The difference is akin to that between substance and its incidents, on the one hand, and form, or rules of administrative detail, on the other; or, stated in another way, the difference is between an end in view and the, means for its accomplishment. It has been laid down by high authority that in exercising the “very enlarged administration of charitable trusts, you look to the charity which is intended to be created, and you distinguish between it and the means which are directed for its accomplishment. Now the means necessarily vary from age to age . . . (and when) the means originally devised have become inadequate to the end, courts of equity have always exercised the power of varying the means of carrying out the charity from time to time. . . . (It is) the settled doctrine that the means for the attainment of the end may be altered from' time to time” (Clephane v. Lord Provost (1869) L. R. 1 H. L. Sc. 417, 421, per Lord Westbury; Andrews v. McGuffog (1886) 11 App. Cas. 313, 325, 329). “What is the principal object which the testatrix had in view as distinguished from the means by which she wished that object to be carried out?” (In re Campden Charities (1881) 18 Ch. D. 310, 326, 328, per Sir George Jessel M. R.). In such a case as this a charity is in truth a ward of chancery. In respect of its administration, a court of equity exercises that power for the protection of a charitable trust from exigent peril which the ward is powerless to exercise in its own behalf.

The earlier English chancery cases do not disclose a very clear development of this branch of the jurisdiction, apparently because the occasion for its exercise did not often arise in actual practice, and also, in all probability, because, in an age when the prerogative cy pres power was carried to lengths which have justly been characterized as extravagant (Attorney-General v. Minshull (1798) 4 Ves. 11, 14), this jurisdiction was naturally enough deemed to be beyond cavil. But during the century now drawing to a close, and with the decadence of exercises of the prerogative power and a greater attention to the foundation and scope of the judicial cy pres power, the branch of the jurisdiction now under consideration has been developed and become firmly established; although, perhaps, its basis and consequent limitations can not be said to have been at all times- clearly observed.' The question has arisen under varying circumstances. Where the trustees are invested with an express power to make the alienation in question, there is, of course, no room for contention (Attorney-General v. Hardy (1851) 1 Sim. N. S. 338, per Lord Cranworth; In re Mason’s Orphanage (1896) 1 Ch. 54, 59). In the absence of such an express power, it being of the very essence of a charity that it shall endure forever, lands which are made the subject of a charitable trust are deemed to be alike inalienable, whether it be so declared in terms or not. (Attorney-General v. Brooke (1811) 18 Ves. 319, 326, per Lord Eldon; Attorney-General v. Hungerford (1834) 8 Bligh N. S. 437; s. c., 2 Cl. & F. 357, 375 ; College of St. Mary Magdalen v. Attorney-General (1857) 6 H. L. Cas. 189, 205 ; Perin v. Carey (1861) 24 How. 465, 495 ; Odell v. Odell (1865) 10 Allen 1 ; Mills v. Davison (1896) 54 N. J. Eq. 659, 662-664 ; 2 Perry, Trusts (4th Ed.), sec. 737). “Property dedicated to a charity is inalienable necessarily” (Gray, Perpetuities, sec. 600).

A difference is also to be noted between (a) lands actually used for the charity itself, ex gr. (in the present instance) the tract on which the Botanical Garden is situate; (b) lands which are set apart in order to provide, by means of their income or use, a fund for the endowment of the charity; and (c) lands which are .purchased or otherwise acquired by the trustees as an investment of surplus funds. In the absence of an express provision concerning the matter, property of the character last noted is taken to be held free from any general restraint upon the power to alienate which may be declared in the instrument of foundation or implied by law (In re Clergy Orphan Corporation (1891) 3 Chi 115, 151; Governors, etc., and Skinner (1893) 1 Ch. 178).

The distinctions and differences thus noted account largely for the varying forms in which the rule has been expressed in the reported cases upon this subject. Without undertaking to review or to reconcile these in detail, it suffices for the present purpose to extract the general rule on the subject. This is thus stated in a standard treatise: “The court of chancery always had power, under its general jurisdiction to administer the estate' of a charity, to alien charity property” (Tudor, Char. Trusts (3 Ed.), p. 250). Under differing aspects and in language more or less clear, this jurisdiction has been recognized or exercised on numerous occasions reported or noted in the English chancery reports: Watson v. Hinsworth Hospital (1707) 2 Vern. 596, per Lord Cowper ; Attorney-General v. Mayor of Stamford (1747) 2 Swanst. (Appendix) 591, per Lord Hardwicke; Attorney-General v. Owen (1805) 10 Ves. 558, per Lord Eldon ; Attorney-General v. Backhouse (1810) 17 Ves. 283, 291, per Lord Eldon ; Ex parte Berkhampstead Free School (1813) 2 V. & B. 134, per Lord Eldon ; Attorney-General v. Cross (1817) 3 Mer. 524, per Sir William Grant M. R.; Attorney-General v. Warren (1818) 2 Swanst. 291, 302 ; s. c. 1 Wils. Ch. 387, 411, 412, per Sir Thomas Plumer

M. R.; Attorney-General v. Crook (1836) 1 Keen, 121, per Lord Langdale M. R.; Attorney-General v. Kerr (1840) 2 Beav. 420, 428, per Lord Langdale M. R.; Attorney-General v. South Sea Company (1841) 4 Beav. 453, 457, 458, per Lord Langdale M. R.; In re Parke’s Charity (1841) 12 Sim. 329, 332, per Lord Romilly; Attorney-General v. Mayor of Newark (1842) 1. Hare, 395, per Vice-Chancellor Wigram; In re Suir Island Female Charity School (1846) 3 Jo. & La. T. 171, 174, per Lord St. Leonards; In re Alderman Newton’s Charity (1848) 12 Jur. 1011, per Lord Cottenham; Attorney-General v. Pilgrim (1849) 12 Beav. 57, 60, per Lord Langdale M. R.; Attorney-General v. Bishop of Worcester (1851) 9 Hare, 328, per Turner L. J,; Re Overseers of Ecclesall (1852) 16 Beav. 297; s. c. 21 L. J. Ch. 729, per Lord Romilly M. R.; Attorney-General v. Archbishop, of York (1853) 17 Beav. 495, 501, per Lord Romilly M. R. : Re Ashton Charity (1856) 22 Beav. 288, per Lord Romilly M. R.; Attorney-General v. Dedham School (1857) 23 Bear. 350, 356, per Lord Romilly M. R.; In re North Shields Old Meeting House (1859) 7 W. R. 541, per Vice-Chancellor Kindersley; Re Colston’s Hospital (1859) 27 Beav. 16, 20, per Lord Romilly M. R.; Re Seckford’s Charity (1861) 4 L. T. 321, per Lord Hatherly; Attorney-General v. St. John’s Hospital (1865) L. R. 1 Ch. 92, 106; s. c. 35 L. J. Ch. 207, 215, per Turner L. J.; In re Henry Smith’s Charity (1882) 20 Ch. D. 516, 518, per Sir George Jessel M. R.; Glenn v. Gregg (1882) 21 Ch. D. 513, 516, per Kay L. J.; Re Browne’s Hospital v. Stamford (1889) 60 L. T. Rep. 288, per Chitty L. J.; Re The Stockport Ragged Industrial and Reformatory School (1897) 77 L. T. Rep. 425, per Stirling J. Many of the pertinent cases are collated and analyzed in the carefully prepared opinion of Stirling, J., concerning the trust for Mason’s Orphanage (1896) 1 Ch. 54; affirmed (1896) 1 Ch. 596. By force of the extended regulations of the subject which are embodied in Sir Samuel Romilly’s Act (52 Geo. IH, c. 101), the Charitable Trust Act of 1852, and the various amendments and supplements thereto, the jurisdiction of the English courts in the premises has become firmly fixed upon a statutory basis; but many of the cases last cited, ex gr. Re Ashton Charity (1856) 22 Beav. 288, have made it clear that so far as the existence of the jurisdiction here in question is concerned, the legislation referred to is merely declaratory and not creative.

It has been noted that the power to authorize a sale of charity property has been more frequently called into requisition in this country, owing to the more rapid changes and the other local conditions which have characterized and arisen in. the marvelous development of our cities (Gray, Perpetuities, sec. 590, n. 3) ; and with the exception of a single per curiam deliverance, and that in a state which accords no particular favor to charitable trusts (Tharp v. Fleming (1858) 1 Houst. 580, 592), the American courts (and particularly those which recognize the doctrine of an enlarged jurisdiction in respect of such trusts), have been uniform and emphatic in their recognition of the power in question. Stanley v. Oolt (1866) 5 Wall. 119, is generally regarded as the leading case on the subject in our reports. There it appeared that certain real estate had been devised to an ecclesiastical society with a provision that it “should not be hereafter sold by the same, but leased, and the annual rents or profits applied to the uses or benefit of such society.” A sale having been authorized by legislative enactment (the then state of the judicial deliverances in Connecticut having'apparently made it advisable to obtain the authority and sanction of that department of the State government), it was held that by such sale a good title had passed to the purchaser, the court laying it down as a general rule (and perhaps too broadly) that “when lapse of time or changes as to the conditions of the property and of the circumstances attending it, have made it prudent and beneficial to the charity to alien the lands, and invest the proceeds in other funds or in a different manner, it is competent for this. court to direct such sale and 'investment, taking care that no diversion of the gift be permitted.” In Ould v. "Washington Hospital (1877) 95 U. S. 303, 312, it was said, referring to the will considered in Perin v. Carey, (1861) 24 How. 465, which expressly forbade, forever, the sale of any part of the devised property, that “of course, the legislature, or a court of equity under proper circumstances, could authorize or require a sale to be made.” And in the interesting case of Jones v. Habersham (1882) 10Y U. S. 174, 183, the court, per Mr. Justice Cray (a great authority in this branch of the law), said of a, provision, that “the trustees should not alienate the land on which the school-room stands,” that “it will not prevent a court of chancery from permitting, in case of necessity arising from unforseen circumstances, the sale of the land and the application of the proceeds to the purposes of the trust.” The jurisdiction has been exercised where there was a specific direction that funds given to charity should be invested in certain named stocks, and in the course of time the making of such investments became impracticable (Mclntire v. Zanesville (1867) 17 Oh. St. 352); where a devise was made of a given tract, in trust to support a Congregational minister, and the trustees were directed “from time to time to lease the said farm for a term of not more than seven years nor less than three years, extraordinaries excepted,” a decree authorizing an absolute sale was declared to have been within the proper jurisdiction of the court (Wells v. Heath (1857) 10 Cray, 17, 27) ; and where it was directed that the principal of the fund to arise should be loaned only upon real estate security, it was declared that “if that particular form of security should fail or become unavailable, the trustees might be authorized to loan upon other sufficient securities without impairment of the trust” (In re John’s Will (1896) 30 Or. 494, 529, 530). Similar rulings have been made in a large number of other cases, under vary-mg provisions and circumstances: Odell v. Odell (1865) 10 Allen, 1, 16; Brown v. Baptist Society (1869) 9 R. I. 177 ; Weeks v. Hobson (1890) 150 Mass. 877; Crerar v. Williams (1893) 145 Ill. 625, 652 ; In re Mercer Home (1894) 162 Pa. St. 232, 238, 239 ; 2 Perry, Trusts (4 Ed.), sec. 737 ; 2 Story, Eq. Jur. (13 Ed.) sec. 1176.

A strikingly parallel instance is disclosed in the litigation which .arose in respect of the well-known will of Stephen Girard. It was there provided, concerning certain real estate set apart as an endowment for Girard College, “that no part thereof shall ever be sold or alienated by the said mayor, aldermen and citizens of Philadelphia, or their successors, but the same shall forever thereafter be let from time to time to good tenants, at yearly or other rents, and upon leases in possession not exceeding five years from the execution thereof; and that the rents, issues, and profits arising therefrom shall be applied towards keeping that part of the said real estate situate in the city and liberties of Philadelphia constantly in good repair (parts elsewhere situate to be kept in repair by the tenants thereof respectively), and towards improving the same whenever necessary, by erecting new buildings, and that the net residue (after paying the several annuities hereinbefore provided for) be applied to the same uses and purposes as are herein declared of and concerning the residue of my personal estate.” In upholding the validity of this provision the court, among other things, said (per Lowrie, O. J.): “In .all gifts for charitable uses the law makes a very clear distinction between those parts of the writing conveying them, which declares the gift and its purposes, and those which direct the mode of its administration. And this distinction is quite inevitable, for it is founded in the nature of things. We must observe this distinction in studying Mr. Girard’s will, otherwise we run the risk of inverting the natural order of things by subordinating principles to form, the purpose to its means, the actual and executed gift for a known purpose to the prescribed or vaticinated modes of administering it, that are intended for adaptation to an unknown future,'and of thus making the chief purpose of the gift dependent on the very often unwise directions prescribed for its future security and efficiency. .... Possibly some of the directions given for the management of this charity are very unreasonable and even impracticable; but this does not .annul the gift. The rule of equity on this subject seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not disturb the charity, for equity will substitute another mode, so that the substantial intention shall not depend on the insufficiency of the formal intention.” It was declared that this was a branch of the judicial power of cy pres and involved no consideration of the prerogative power exercised by the crown, although it is to be noted that the court did not clearly observe the distinction between the jurisdiction in respect of the mode prescribed and that of administering the means to an end. The doctrine of cy pres was said to be “a reasonable doctrine by which a well defined charity, or one wdiere the means of definition are given, may be enforced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness. . . . •. It is the doctrine of approximation;” and the court asserted that in effect these views stood recognized by the decision in Vidal v. Girard (1844) 2 How. 128 (City of Philadelphia v. Girard’s Heirs (1863) 45 Pa. St. 9, 25-30). Subsequently these views were practically applied under the same wall, and a decree made authorizing -leases of certain devised coal lands for a term exceeding that of five years specified by Mr. Girard, upon a showing that leases for so short a period rendered it impossible and impracticable to secure the working of the mines located on the property in question. The court said that “it seems to be settled law that in a proper case, a court of equity can, in order to preserve the life of the trust, amputate its dead member” (In re Petition of Philadelphia (1868) 2 Brewst. 462, 480).

The same views have heretofore been repeatedly announced and applied by this court. Where “unforseen circumstances have transpired which isolate a part of the grounds and render them totally unfit for the purpose designed by the testator, .... a sale of this property (it was ruled) will be in furtherance of the very purpose for which this charity was created” (Academy of Visitation v. Clemens (1872) 50 Mo. 167, 171 ; Goode v. McPherson, 51 Mo. 126, 127). “The ground upon which courts.of equity interfere in cases of this sort is that of effectuating the specific intent of the donor” (Schmidt v. Hess (1875) 60 Mo. 591, 594). A decree for the sale of property conveyed to two charities, to be used by them jointly, and an apportionment of one-half of the proceeds to each for a separate building, based upon a showing that by a change of circumstances the location of the property had become unsuitable for the purposes mentioned, and that a structure to be used in common w.as impracticable, was approved in Missouri Historical Society v. Academy of Science (1887) 94 Mo. 459, 467. Generally, it has been laid down that in such cases it is the primary duty of the court to ascertain the dominant purpose of the donor, and to so administer the trust, and if necessary, to so modify the details prescribed, in the light of emergencies which may be developed from time to time, as to preserve and effectuate the controlling intent (Barkley v. Donnelly (1892) 112 Mo. 561, 572, 574). In a very recent case (in which the difference in opinion among the members of this court arose upon’ the construction of the will then at bar, and not concerning the general question of the jurisdiction of a court of chancery in such a case ■as this), it was declared to stand established in this State by “an unbroken line of decisions that the equity branch of our courts has no authority and power to mold the form of a charitable devise or gift to suit the necessities of changed conditions and surroundings, and that when it has been found beneficial to the charity to alien its lands and invest the proceeds in other funds or in a different manner, it is competent for the court to direct such sale and investment, so long as no diversion of the gift is permitted....."Why should it be said that if the trustee be unable to act because of some fault of his own, he may be discharged and a new trustee substituted by the court to carry out the trust, or why, if he dies and can not act, a successor may be named by the court to execute his powers; but if, because of some external difficulty,. or because some particular mode designated as to the use of the property can not be executed in all its details, the court is powerless to act, is wanting in authority to move in the premises?” (Women’s Christian Association v. Campbell (1898) 147 Mo. 103, 123, 124).

In the case under consideration it is manifest that the provisions of Mr. Shaw’s will for leasing the property in question and denying to his trustees the right to otherwise alien the same, “are not so essential that you can not separate the intention of charity-from that particular mode” (Biscoe v. Jackson, (1887) 35 Ch. D. 460, 463, 464, per Kay L. J.; Teele v. Bishop of Derry (1897) 168 Mass. 341, 343). On the contrary, he was manifestly interested in and advised .as to the law of this State concerning the subject-matter of the trust which he had under contemplation. This is evident from the fact that in 1859, at a time when it was not definitely known what the rules governing charitable trusts in this jurisdiction would ultimately be declared to be, he asked the Legislature to make the matter certain by a special act authorizing him to formulate the plan he had in mind. When he came to make his will in 1885 he was aware that much of the difficulty which he had apprehended in 1859 had been removed by intermediate decisions of this court, for, referring to the act of 1859, he declared a purpose of “availing myself of the power given me in said act (only) so far as is necessary,” a reference manifestly dictated by an abundance of caution, for, as already shown there is no aspect of the trust under consideration which needed legislative sanction or aid. "When the will in question was drawn (1885), this court had decided the above mentioned cases of Chambers v. St. Louis, Academy of Visitation v. Clemens, Goode, v. McPherson, and Schmidt v. Hess; while the instrument was still ambulatory (the testator’s death having occurred in 18891, this court decided Howe v. Wilson, and Missouri Historical Society v. Academy of Science, supra; and this court had, as far back as 1872, cited Stanley v. Colt (1866) 5 Wall. 119, with manifest-approval. It is not an unwarranted inference that Mr. Shaw knew of the Girard will. There is, indeed, a marked similarity in many of the provisions of the two wills, particularly in reference to prescribing a plan of ground leases of unimproved property and of restraining the power of the trustees to otherwise alien the endowment fund. The present is, therefore, peculiarly a case for the practical application of the rule long, ago laid down by Lord Eldon: “Testators are supposed, in the eye of the law, to know the rules by which courts are guided in their administration of the law, as well in the case of charities as in those of individuals” (Mills v. Farmer (1815) 1 Mer. 54, 79). Mr. Shaw must be taken to have been advised as to the powers which a court of chancery -could properly exercise in the administration of the charitable trust which he was creating; and as he so clearly indicated a dominant purpose to promote the welfare of the charity mentioned in his will, he*is to be conclusively taken to have “impliedly agreed that if it should become impossible to administer the trust in the manner proposed, the court might make any reasonable modification of his scheme which might at -any time become necessary” (Cary Library v. Bliss (1890) 151 Mass. 364, 376). His will is, therefore, to be read as though the powers of administration which our courts have in such cases, had been in terms recited to be a part of the instrument (Duggan v. Slocum (1897) 83 Eed. Eep. 244, 246; affirmed (1899) 92 Eed. Eep, 806). It has even been broadly stated, in a leading case, that “no testator can obtain for his bequests that support and permanence which the law gives to public charities only, and at the same time deprive the beneficiaries and the public of the safeguards which the law provides for their due and lawful administration” (Jackson v. Phillips (1868) 14 Allen, 539, 571). And certainly it would evidence a great injustice to Mr. Shaw, and to his memory, to interpret his purpose so narrowly as to make the continuance or the success of his charity dependent upon the ability of the trustees to observe all the details of administration which the will outlines; upon their ability to accomplish impossibilities; .and upon their ability to meet exigent necessities of a financial aspect, although without funds which are available to that end, and without power or means to provide them (Attorney-General v. Briggs (1895) 164 Mass. 561, 568).

It follows that the court possesses the jurisdiction invoked by this petition, which is one in the nature of an application by the trustees for a decree embodying adequate provisions to meet the difficulties which have arisen in the practical administration of the trust committed to them, and to enable them to overcome conditions and contingencies not provided for (and therefore, in a legal sense, unforseen) by the testator (Trustees of the“ Smith Charities v. Northampton (1865) 10 Allen, 498, 499). And this jurisdiction involves a duty of the most solemn nature: “We must inquire what the donor himself would now direct, had he lived to witness the present altered circumstances of the case” (Mclntire v. Zanesville (1867) 17 Oh. St. 352, 363), proceeding as nearly as may be, to give effect to his expressed intentions. “There is a convenience in .acting as he would himself have done. This is the foundation (in one of its aspects) of the doctrine of cy mes” (Attorney-General v. Ironmongers’ Company (1834) 2 Myl. & K 576, 586).

LET. It is, however, most strenuously urged that the act of March 14, 1859, operates to oust the jurisdiction of the courts of this State in the premises here disclosed, and to forever debar them from exercising the power, which exists in all 'other similar cases, to authorize and direct a sale of any part of-the property in question. The argument is that by the act and the reference thereto in Mr. Shaw’s will, a contract was created between the State and the testator, the obligation of which can not, constitutionally, be impaired. The present ease presents no effort on the part of the State to withdraw or qualify any privilege tendered to Mr. Shaw by the State and accepted by him. The question is one of the proper construction of the statute; we are to ascertain the intention of the law-makers. Did the Legislature intend to enact that 'f Henry Shaw made such a will as the special statute outlined and sanctioned, no court should have the power, at any time in the future, even centuries hence, nor upon any conceivable showing of exigent necessity, to mold the administrative details of the trust in question so as to authorize an alienation of a character other than that mentioned by him? This is the concrete question presented for decision. If it is answered in the negative, there is no occasion to consider whether it was within the power of the General Assembly to recognize the existence of a given jurisdiction in the judicial department of the State government, and, while making no change in the law on the subject, to forbid the exercise of that jurisdiction in the special instance mentioned.

In our opinion, the proper construction and the true interpretation of this enactment present no room for doubter difficulty. It was intended to be what it frankly professes in its title: “An act to enable Henry Shaw to convey or devise to trustees certain lands” (Dart v. Bagley (1892) .110 Mo. 42). The body of the act declares that “it shall and may be lawful for the said Henry Shaw, by his last will,” to create the trusts and specify the provisions there mentioned. Among the powers and privileges conferred is one “to provide (if he saw fit) that no absolute alienation shall ever be made of said lands, or any portion of the same, by the trustees, therein appointed, their successors or assigns in said trust, but that the same shall forever remain sacred for the object and purposes of said trust.” The expressions fall far short of constituting a binding-legislative direction that said tracts shall be forever absolutely inalienable and beyond the jurisdiction of a court of administration. To the contrary, to quote the language of Lord Oairns, “they are words merely making that legal and possible which (it was apprehended) there would otherwise be no right or authority to do. They confer a faculty or power, and they do not, of themselves do more than confer a faculty or power” (Julius v. Bishop of Oxford (1881) 5 App. Cas. 214, 222). The act is to be classified .as being affirmative (2 Rawle’s Bouv. L. Diet. 1032; Suth. Stat. Construction, sec. 202; 23 Am. and Eng. Ency. of Law, 143) and permissive in its nature. “A permissive statute is one which allows certain actions or things to be done without commanding them, as, for example, allowing certain persons to make wills, to pre-empt lands, to vote, or to form corporations” (Potter’s Dwarris on Statutes, 74; Suth. Stat. Construction, sec. 205; 23 Am. and Eng. Ency. of Law, 154). In the absence of unequivocal terms expressly, or by necessary implication, negativing the powers and jurisdiction of the class of courts to which our circuit courts belong, a statute of this character is conclusively presumed not to have intended to impair or to interfere with the existence and exercise of such powers and jurisdiction (1 Story, Eq. Jur. (13 Ed.) sec. 80; Black, Interpretation of Laws, .123; Suth. Stat. Construction, sec. 332, p. 421; 23 Am. and Eng. Ency. of Law, 352; State ex rel. v. St. Louis County Court (1866) 38 Mo. 403, 408 ; Tackett v. Vogler (1885) 85 Mo. 480, 484 ; Wheeling and Belmont Bridge Co. v. Wheeling Bridge Co. (1891) 138 U. S. 287, 293).

The occasion for this act is readily discernable-. At that date it was not known whether this court, when or in case the question should come before it, would recognize, in whole or in part, the rule of an enlarged and liberal jurisdiction concerning charitable trusts which had been asserted in England and in several of the States, or whether it would follow the rulings in Virginia, Maryland, North Carolina, and elsewhere, in denial thereof; nor was it known whether it would be declared that the common-law rule against perpetuities — and this branch of the rule, as popularly understood, is probably erroneously so described (Gray, Perpetuities, secs. 2, 3, 140, 269, 560, 591) — forbade such a restraint on alienation as this special act permitted to be imposed. Bryan Mullanphy had died in 1851, leaving a large benefaction which this court afterwards declared, in language which is fully apposite here, to be of a character “which át.once heralds the name and fame of their founders far and wide, and dispenses great blessings among those who are the objects of them” (Chambers v. St. Louis (1860) 29 Mo. 543, 582). The validity of the Mullanphy will was vigorously challenged, under the advice of counsel of deserved pre-eminence in their profession. In 1859, while that litigation was still pending, the persons interested in maintaining and furthering the Mullanphy Fund applied to the same General Assembly which passed the Shaw enabling act, for a grant of special privileges in behalf of that charity (Laws 1858-9, 280); thereby, probably, setting an example which induced Mr. Shaw to ask for the passage of the enabling act under review. It was not until the following year that Mullanphy’s will was upheld by this court (Chambers v. St. Louis (1860) 29 Mo. 543). It was pointed out by Judge Leonard, who appeared in support of that will, that “the law of this State is now for the first time to be announced and applied in this tribunal” (29 Mo. loc. cit. 5†1), a circumstance wbicb.. was likewise noted by tbe court (p. 593). The opinion refers to tbe “great diversity of opinion” (p. 592) wbicb tben existed in tbe American cases on tbe subject, and wbicb (it may be noted) bas increased rather than diminished since that'date (2 Pom. Eq. Jur. (2 Ed.) sec. 1029; 5 Am. and Eng. Ency. Law (2 Ed.), 899, 900, 942, 943). That tbe conclusion tben reached bas now become tbe firmly settled law of this State, in no wise negatives tbe inference that Mr. Shaw preferred, as tbe situation presented itself to him in 1859, to have tbe matter settled, so far as tbe charity be bad in mind was concerned, by express legislative • sanction. But, as shown, tbe affirmative words of this statute are entirely without effect upon the jurisdiction of tbe chancery courts of this State. That jurisdiction could be impaired (if at all) only by express words of restraint, or their legal equivalent.

Great stress is laid upon the- recital contained in tbe preamble to this enactment, that “for tbe purpose of securing' to tbe said institution a permanent fund for all time, wbicb will not be diverted from tbe' specific object wbicb it is designed to support, it is essential that tbe said real estate shall be so conveyed or devised, and held, that tbe same shall not be alienated or alienable.” It is unnecessary to analyze this language critically with a view of ascertaining whether tbe dominant purpose disclosed by this recital is not to insure that “a permanent fund shall be secured for all time,” rather than, that tbe particular form of alienation by means of ground leases, mentioned in a previous paragraph of tbe preamble, shall be observed. It suffices to say, for tbe purposes of this case, that while a preamble may be looked to in some cases to elucidate a statute, this can only be done where there is need for elucidation. Tbe doubt or ambiguity in question must arise from or exist in tbe body of tbe act, and tbe preamble can not be invoked to create tbe conditions precedent to its consideration in tbe premises (United States v. Oregon, etc., Railroad Co. (1896) 164 U. S. 526, 541). “The preamble is no part of the act, and can not enlarge or confer powers, nor control the words of the act, unless they are doubtful or .ambiguous” (Yazoo, etc., Railroad Co. v. Thomas (1889) 132 U. S. 174, 188). So, too, “if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment” (Powell v. Kempton Park Race-course Company (1899) A. C. 143, 157, per Earl of Hals-bury L. C.). It is equally true that a preamble can not ‘be resorted to in order to extend or enlarge the readily understood language of the body of a statute (1 Kent Comm. 460; Suth. Stat. Construction, sec. 212; 23 Am. and Eng. Ency. Law, 331).

It is beyond reasonable belief that the General Assembly intended, in 1859, to declare, in the form of a binding and irrepealable statute, that these tracts should be forever held in accordance with the forms and under the restrictions in respect of the alienation thereof which are mentioned in the preamble referred to, should the impossibility of observing the same become ever so absolute, and even though an emergency should arise which endangered the very existence of the charity itself. In short, the act is to be construed, as the will has been, to imply that the courts should, nevertheless, have the same power of administration over this charity which they may exercise as to others, and to have left the molding of the administrative details concerning the same to the judicial power, in the light of the conditions and exigencies which might arise, from lime to time, during the “forever” for which this charity is established.

IY. The jurisdiction of the court in such a case is based upon a change of circumstances, or the happening of an unforseen event, producing one or both of these conditions: (a) An impossibility to literally carry out or observe the forms or details of administration prescribed or indicated in the instrument under consideration; or (b) the advent of an exigency or emergency creating a necessity to provide .another form for administering the trust. The impossibility referred to must be more than a mere nervous apprehension, and should be based on or arise from reasons which will warrant a judicial conclusion that the condition disclosed is permanent in its nature. On the other hand, it would be impracticable to grant relief only where there is a showing of an absolute or physical impossibility, in the literal sense of the term. An impracticability which evidences a substantial impossibility will suffice.

And in such cases, the superadded element which will set in motion, the power of the court to grant the proper relief, is a consideration for the welfare and requirements of the charity. The necessity referred to should be a reasonable and actual necessity, as distinguished, on the one hand, from one so overwhelmingly exigent as to be utterly impossible of being otherwise guarded against or provided for, and, on the other hand, from a merely fanciful sentiment or ai prompting of mere expediency. When a proper case is presented, all the formal directions of the instrument are taken to have become secondary and subordinate, and it is conclusively presumed that the testator designed that a court of chancery should exercise its power to mold the details of administration so as to meet the exigency disclosed, and to effectuate his dominant purpose.

Among the facts and elements which have been held sufficient to warrant the conclusion that a case for the exercise of the jurisdiction was presented in the given instance, are these: A necessity created by the growth of a village into a thickly settled city, or by the change of the habits of society and the practices of men (In re Campden Charities (1881) 18 Ch. D. 310, 323 ; Clephane v. Lord Provost (1869) L. R. 1 H. L. Sc. 417, 421) ; an impossibility caused by a change of local sentiment in respect of the time for which leases should be made, it appearing that persons would not erect a good class of houses under leases for the period originally prescribed (In re Henry Smith’s Charity (1882) 20 Ch. D. 516, 518), or would not undertake to open and develop mining lands unless leases were granted for a longer time than that limited in the will (Petition of Philadelphia (1868) 2 Brewst. 462); a necessity disclosed by the fact that the locality in which the property was situate had Recome unsuitable for the purposes of the charity, by reason of a change in surroundings and in the uses to which the neighboring property was then being put (In re Suir Island Female Charity School (1846) 3 Jo. & La. T. 171 ; Stanley v. Colt (1866) 5 Wall. 119 ; Brown v. Baptist Society (1869) 9 R. I. 177 ; Women’s Christian Assn, v. Campbell (1898) 147 Mo. 103) ; where the opening of a street through the premises (Academy of Visitation v. Clemens (1872) 50 Mo. 167), or other circumstances incident to the growth and development of a city,- had rendered the premises unsuitable or inadequate for the purposes intended (Missouri Historical Society v. Academy of Science (1887) 94 Mo. 459) ; and, generally, where a change of circumstances or the happening of unforseen or unprovided for contingencies had made it necessary for the protection of the charity that the form of administering the fund should be changed (Jackson v. Phillips (1867) 14 Allen 539, 580 ; In re John’s Will (1896) 30 Or. 494, 532).

In a well known case, Lord Brougham seems to have indicated that the controlling test was whether the action proposed to be taken, evidences “a provident or an improvident management of the charitable fund,” or, in other words, whether it is “for the real benefit of the charity” to exercise the jurisdiction in-the case presented (Attorney-General v. Hungerford (1834) 8 Bligh N. S. 437, 458 ; s. c. 2 Cl. & F. 357) ; and in this connection he instanced that the property in question might consist of vacant land, as to which there was no apparent probability of realizing a substantial income, in which case it would “be perfect madness” and “an abuse of trust” to hesitate to accept an offer on terms which insured a large income to the charity. While this view of the matter has apparently been recognized by some English judges (Attorney-General v. St. John’s Hospital (1865) L. R. 1 Ch. 92, 106), and by several highly reputable courts in this country (Shotwell v. Mott (1844) 2 Sandf. Ch. 46, 53 ; Stanley v. Colt (1866) 5 Wall. 119 ; Brown, v. Baptist Society (1869) 9 R. I. 177, 188 ; In re Mercer’s Home (1894) 162 Pa. St. 232), we are unwilling to adopt it as indicating the only element or consideration which marks the true basis and limits of the jurisdiction in hand. Self-evidently, a sale should not be ordered unless it will be to the advantage of the charity to do so. On the other hand, the mere fact that such an advantage will accrue is not, of itself, sufficient to authorize that to be alienated which the donor has expressly, or impliedly, declared- shall remain inalienable. The proviso engrafted by the law upon such a direction is, that in case of present or impending impossibility or necessity, the court of chancery, proceeding with due caution, and considering the interests or requirements of the charity, may modify and mold the expressed provision so as to preserve or render possible of accomplishment the dominant purpose disclosed; but there is no just principle which confers a permission to do so at the mere discretion of the court, or upon the sole ground that it appears to be advantageous to the charity (Attorney-General v. Mayor of Newark (1842) 1 Hare, 395, 403 ; In re Suir Island Female Charity School (1846) 3 Jo. & La. T. 171, 174, per Lord St. Leonards; Attorney-General v. Bishop of Worcester (1851) 9 Hare, 328, 361 ; Attorney-General v. Stewart (1872) L. R. 14 Eq. 17, 23 ; Re Browne’s Hospital v. Stamford (1889) 60 L. T. Rep. 288, 289; In re Mason’s Orphanage (1896) 1 Ch. 54, 59 ; Baker v. Smith (1847) 13 Met. 34, 41 ; Winthrop v. Attorney-General (1880) 128 Mass. 258, 261 ; Women’s Christian Association v. Campbell (1898) 147 Mo. 103). The question is not one of expediency, but of an existing exigency (Gary. Library v. Bliss (1890) 151 Mass. 364, 375).

Y. Applying this conservative rule to the facts of this cause, we are constrained to hold that there is no sufficient showing to warrant a decree, at this time, for the sale of the tracts which are numbered, respectively, one, two, five, and six on the plat to-be found in the foregoing statement of the case. This conclusion necessitates a vacation of the decree rendered by the circuit court. Of course, this denial of authority to alienate these tracts at this time is without prejudice to a renewal of the application as to any or all of them, should the developments of the future and a further showing hereafter made, warrant a conclusion that a lease thereof as directed in the will has become impossible, or that a sale thereof is necessary, under the rules hereinbefore indicated. The evidence shows that these four tracts are now under temporary leases which yield a surplus (though small) over and above the general taxes levied thereon. And the conditions at 'present affecting said tracts are not sufficiently exigent to demand a sale thereof, or to create the necessity required to call into activity the jurisdiction of the court in the premises. It must be remembered that such a decree as is here asked can not be made so as to become operative in case the trustees may at some time hereafter deem it necessary for the protection of the trust, but that the impossibility or necessity referred to, is to be adjudged by the court as an existing fact. So, too, when an alienation is directed, it takes place, not by the trustees in the exercise of a power under the will, but by force of the decree of the court rendered in the exercise of its judicial power of administration in respect of charitable trusts.

YI. We agree with the circuit court that the evidence warrants and demands a direction for the sale of tract three, under the terms and conditions specified in the form of decree which we have prepared and which sufficiently indicates our views concerning such of the interesting questions arising or suggested by the record in this case as are not specially treated herein. At the time of Mr. Shaw’s death, he was still engaged in putting to a practical test his policy of letting property of this character on ground leases, and was applying that policy to other property which he owned in that immediate vicinity. Other parties were pursuing a similar policy with reference to property of the same general character. At that time the tracts here involved were distinctly suburban, and their utilization for urban residence purposes was, at best, a matter of the distant future. Since his death there has developed and become fixed a wide-spread conviction in the minds of the people of the city of St. Louis — one that is shared by them in common with the inhabitants of other cities which the trustees caused to be visited for the purpose of ascertaining the general prevalent public opinion on the subject, and which, indeed, prevails in this country generally — against accepting such ground leases, particularly when it is desired or exacted that residences shall be erected on the property leased.. This conviction is especially strong where there is a requirement that the lease shall contain a covenant binding the lessee to a payment of taxes and special assessments levied on the property. This feeling is partly due to a dissent from the feudal system, of which leases such as Mr. Shaw directed to be made, marked a prominent phase; partly to an objection to paying the special assessments made for the improvement of the property and thus to the enhancement of the value upon the basis of which alone the covenant for a renewal can be availed of; partly, to an inability to negotiate a loan with which to erect. a residence on real estate held under such a lease, the covenants of which would, in practical operation, constitute an underlying incumbrance; and partly, because so much other eligible property of the same general character and situation is offered for sale in fee and on easy terms, that any argument of eligibility or attractiveness, which might ordinarily be urged in behalf of the Shaw property, is without effective influence upon the minds of home-seekers. Hence it is not surprising-to learn that the plans of Mr. Shaw and of the others above referred to, in this behalf, have failed of fruition, and that when the trustees made an earnest effort to lease this tract three, in convenient parcels, and under restrictions of the nature enjoined by the will, they received few inquiries and no offers. The will of Mr. Shaw, and, as well, the nature and welfare of his charity,- limit the uses to which this property can be put. The will requires that the property shall be so disposed of t-hat “by its improvement its contiguity may bo pleasant and attractive to the visitors and students of the Botanical Garden,” and the interests of the Garden make it necessary to prohibit any structure in its vicinity which is calculated to become or to give rise to a nuisance, or other condition inimical to tender vegetation. Again, an unexpected growth of the population of the city has increased the demand for residence sites; and the record discloses .a, graphic instance' of the transformation of outlying property into an urban residence district by means of the extension to it of a rapid street railway service — that wonderful instrumentality which has been so conspicuous a factor in our modern municipal up-building, and which enables those who do business in the city districts, to escape the noises, vapors and other discomforts incident to life in a crowded and congested metropolis, with but a slight loss of time in traveling to and fro, and at a small outlay. The discoveries in respect of utilizing electricity to provide such a service, one that is both rapid and cheap, have occurred since Mr. Shaw’s death. The result is that while other property in the very same neighborhood has been freely bought and liberally improved, the trustees have been unable to lease any part of the property in their charge for residence purposes. It is a further result that much valuable property belonging to this trust is not only lying idle, but that its taxable value is constantly increasing, and, consequently, the demands upon the income which the trustees derive from other sources are yearly becoming proportionately greater. -At present, this income barely suffices to maintain the charity, and much of the business property from which the same is derived is so located and in such physical condition that a decrease rather than an increase in this respect is reasonably to be looked for. As the" property in question can not be leased in accordance with the directions of the will, and as large sums are required to be annually expended in order to prevent its sale for unpaid taxes, it is, to all intents and purposes, a burden to the trust, instead of a useful endowment. In short, the directions of the -testator in this behalf have become impossible of literal observance; the details of administering the charity must, as to this tract, be varied. There must be an alienation' in fact, instead of undertaking to adhere to the policy of accomplishing an alienation in effect by means of leases, perpetually renewable, as specified in the will.

It also appears to be necessary to direct this alienation in order to preserve the endowment. It is an inseparable incident to the development of outlying property into a residence district that many expensive improvements become necessary: streets are required to be opened, graded and paved, and sidewalks, a system of sewerage, and a supply oí water and light must be provided. Under the charter of the city of St. Louis, as is generally the case in our form of municipal government, the cost of nearly all of these necessities and conveniences is charged upon the property found to have been benefited thereby, and in default of payment of this charge, within a limited time, the lien evidenced thereby is enforced by a judicial sale of the property. In the present instance, several ordinances have already been passed to open streets through tracts three and four. A number of measures are pending or impending requiring other streets to be opened through one or both of them, and for grading, paving, sidewalks, sewers, and other purposes essential to the health and comfort of the persons who have purchased and improved neighboring tracts. This progressive march can not longer be stayed, and, indeed, within proper bounds, is as commendable as it is imperatively essential. As a result, large assessments against these tracts at an early day, are inevitable. A failure to pay these assessments will necessarily precipitate an enforced sale of the property. The trustees can no more protect the interests of the charity at such sale than they can-discharge the assessments in advance. They are without available funds to accomplish either of these ends, and the will gives them no power to provide them. Indeed, these assessments will accrue as well against the Botanical Garden, tract. In advance of their being made, the amount which will be needed to defray them is necessarily a matter of merely approximate estimate. That amount will largely depend upon the extent of the grading to be-done, the number of streets which may be opened, the material to be used for paving,* the extent of the sewerage system which may be provided, and other like elements. In addition, it will be necessary to improve the greater part of this tract three so as to make it available for advantageous sales, by being conveniently adapted for use as residence sites. The estimate of the amount which will be needed to defray the special assessments and other expenses to accrue on these various accounts, so far as tract three is concerned, vary from $66,148.24 to $103,-974.92. This tract has a frontage on Flora avenue of about 4,700 feet and a depth of 235 feet to an alley. It not only presents the most pressing necessity for an alienation, bucthere is, also, good reason to believe that it can be sold more readily and to better advantage than any of the other tracts.

YU. The matters mentioned and the reasons assigned in the preceding paragraph apply as well, in all substantial respects germane to this consideration, to the tract numbered four. While the exigency calling for a present sale of this tract may not be quite so imperative as that which the evidence shows in respect to tract three, we are of the opinion that a present authority to alienate this tract should, also be decreed. This is >a. much larger tract and contains about 13 S acres. It lies between Shaw, Grand, and McRee avenues, and the Old Manchester Road. A very small part of it was let on ground-leases by Mr. Shaw in his lifetime. His inability to obtain a greater number of these leases and the dissatisfaction of those who now hold those which are outstanding, do much to explain why it has become impossible to lease this tract as directed in the will; and the tract is so situated and environed as to involve the necessity of providing a much larger sum for its protection and improvement than in the case of tract three, the estimates in regard to it varying from $102,613.88 to $339,831.46.

VIII. It is accordingly ordered that the decree appealed from be vacated, and. that the cause be remanded to-the circuit court with directions to take the proper steps to-substitute the persons or officers who have, pending this appeal, succeeded any of the plaintiffs herein as members of the Board of Trustees created by said will; to cause the present attorney-general to be substituted as a party defendant; to dismiss the petition as to the individual defendants named therein; and to thereupon enter the following decree:

“This cause coming on to be heard, come the parties by their respective attorneys, and thereupon the court, having considered the mandate which has been issued by the Supreme-Court of Missouri in the above entitled cause, doth, in pursuance of the directions in said mandate contained, find, adjudge, and decree as follows:

“First. The court doth find that the directions and restrictions contained in the first and third paragraphs of the first clause of the will of Henry Shaw, deceased, dated January 26, 1885, concerning the leasing and non-alienation by the trustees under said will, so far as the tracts hereinafter referred to as numbers three and four are concerned, have, because of change of circumstances occurring since the death of said testator, become and are now impossible to be performed and observed, and that since said death there has arisen and now exists a necessity that said tracts numbered three and four shall' be sold and aliened as hereinafter provided.

“Second. The court doth adjudge and decree that the tracts so referred to and known as tracts numbered three and four, respectively, be sold and aliened in fee, free from any of the trusts, restrictions and conditions in said will declared and set forth, and subject only to the terms, restriction^ and conditions set forth in this decree or in the deed or deeds of conveyance to be made thereof by virtue hereof. The tracts thus referred to are described, respectively, as follows:”

Tract Three. A tract of land and containing about thirty-one and twenty one-hundredths (31.20) acres, being all that part of IT. S. Survey No. 1293 of the Prairie des Noyers common fields, which is bounded north by survey 1452, or land formerly owned by Mary L. Tyler, south by survey No. 1271, or Plora avenue, west by Tower Grove avenue, and east by Grand avenue.

Tract Pour. A tract of land containing one hundred and thirty-eight (138) acres, being all that portion of Surveys Nos. 1283, 918, and 1519, of the Prairie des Noyers common fields, which is situated between the west line of Grand avenue and the center line of Old Manchester road, and which is bounded on the north by land formerly owned by Mary McEee, or McEee avenue, east by Grand avenue, south by Survey No. 1452, or land formerly owned by Mary L. Tyler, or Shaw avenue, west by the center line of Old Manchester road, with the exception of the portion fronting on Grand avenue, conveyed by Henry Shaw in his lifetime to the Episcopal Orphans’ Home and Mount Calvary Church, and of the five (5) >acre tract at the southeast corner of Old Manchester road and McRee avenue, conveyed by Henry Shaw, April 1, 1843, by deed recorded in Book 0, 3, p. 120; provided that such parts thereof as are now under lease or subject to any other right of possession shall not be sold hereunder until such leases or rights shall respectively have expired or otherwise lawfully terminated.' Said tract of land is also subject to such rights as the city of St. Louis may have to certain portions thereof, used for public streets or highways, within the boundaries of the above described tract of land.

“Said sales shall be made by the said trustees, or their successors,or a majority of them, by the authority of this court and' acting under this decree. Such sales shall be made in such parcels or subdivisions, on such terms and conditions, and subject to such restrictions as to building lines, cost and character of structures to be erected thereon, and the use to which said property and improvements shall be put, as the said trustees, may, from time to time, deem advisable. Said restrictions shall be framed with particular reference to insuring that said property, when improved, will by its contiguity be pleasant and attractive to the visitors and students of the Missouri Botanical Garden. Said sales may be made either at public vendue or privately. Said trustees are authorized to lay out, plat, grade, and improve such portions of said tracts as may be desirable, so as to fit them for use as residence districts and sites, and also to lay out such streets and .alleys as may seem necessary to insure an advantageous sale thereof, and to dedicate said streets or alleys, or any part thereof, as public highways.

“Third. The court doth further adjudge and decree that the net proceeds of all such sales shall be paid over to the plaintiffs’ trustees and to their successors in trust; and the plaintiffs and their said successors are authorized and empowered to apply any moneys now in their hands as such trustees, and such of the future revenues of said trust which may be available for that purpose, or any part of said moneys or revenues, in discharging any and all special taxes or assessments now or at any time hereafter levied on or against any of the tracts mentioned in the first clause of the said will. The proceeds of sales made hereunder shall be applied by them to the discharge of any and all special taxes and assessments levied or to be levied on or against said tracts three and four, or any part thereof, or the tract on which said Missouri Botanical Garden is situated, and to the payment of the cost and expenses of grading and otherwise improving the said tracts three and four, in whole or in part, so as to put them in condition to be advantageously sold for residence sites; and out of such proceeds said trustees, or their successors, may, if they shall deem it advisable, discharge any special taxes or assessments on or against, or for the improvement, so as to put the same in fit condition for residence sites, of any of the other tracts in said first clause described, which aré known in the petition and other proceedings herein, as tracts one, two, five, and six. Such of said proceeds which may not be required or expended for either of the foregoing purposes,shall constitute a fund for the endowment and maintenance of the charity in and by said will mentioned and established, and only the income thereof shall be used for the purposes of said trust; provided, that if at any time such income shall exceed the amount needed for the support and maintenance of said charity, the said trustees may apply to this court for leave to expend such surplus in the enlargement of said Botanical Garden, or for any of the purposes in connection therewith mentioned in or sanctioned by said will. Such proceeds of sales not so required or expended as aforesaid shall be invested only in bonds of the United States or of the State of Missouri; or, in such bonds of the city of St. Louis or of Kansas City, in the State of Missouri, as the court may upon examination find to have been lawfully issued and otherwise approve; or, in safe real estate loans secured by first mortgage on improved real estate in the city of St. Louis; or, in the betterment, reconstruction or restoration of any of the income-producing properties mentioned in the third clause of said ITenry Shaw’s will; or, in the improvement of any of the unimproved property belonging to said trust; or, with the approval of this court, in the purchase of any other improved real estate in the city of St. Louis, or the purchase and improvement of any unimproved real estate in said city; or in any other municipal bonds or first mortgage real estate securities which the court may hereafter authorize or approve.

“Eifth. The court doth further adjudge and decree that whenever any deeds or other instruments conveying or affecting any part of the real or personal property belonging to said trust or to the board of trustees thereof, shall have been duly authorized by a majority of the board of trustees of the Missouri Botanical Garden at any meeting thereof regularly held and called, and shall be duly executed by the president of said board, or the acting executive of the board for the time being, on behalf and in the name of the board, the same shall be sufficient in law under the fourth paragraph of the first clause of said will, to convey all the right, title and interest of said board, and of each member thereof, in said real and personal estate to be conveyed or affected by such instrument as fully, and with the same force and effect, as if each of said trustees Jbad executed the same in person.

“Sixth. The court doth further adjudge and decree that any and all deeds or other instruments conveying or affecting any part of said tracts numbered three and four, or either of them, executed by the said president of the board of trustees of the Missouri Botanical Garden for the time being, shall pass to the grantee therein named, and his heirs and assigns, all the right, title and interest therein specified and authorized and directed to be conveyed by this decree, without obligation or duty on the part of said grantee, or his heirs or assigns, in respect of the authority of said president in the premises or as to the application of the purchase money.

“Seventh. The court doth further adjudge and decree that the application in the petition herein contained for authority to sell and alien certain other tracts in the first clause of said Henry Shaw’s will mentioned and described which tracts are designated in said petition and in the proceedings heretofore had herein as Nos. one, two, five and six be and the same is hereby denied, for want of a sufficient showing that it is now impossible to lease the same as required by said will, or there is at present necessity for the sale thereof; but such denial is specially declared to be without prejudice to any renewal of said application as to any or all of said tracts when the plaintiffs or their successors are thereunto advised by counsel; and this cause is ordered to stand continued from term to term with leave to make such renewed application on reasonable notice to the then Attorney-General of Missouri and with the right reserved unto the court to make such other and further orders or decrees or modifications hereof or supplements hereto as to it may seem meet.

“Eighth. It is further ordered that either party hereto may hereafter, from time to time, apply to the court for such further orders at the foot of the decree as may be necessary for the due execution of the same.

“Ninth. It is further ordered, adjudged and decreed that the costs of this proceeding shall be paid by the plaintiffs from the trust estate under their charge.”

Gantt, O. J., Sherwood, Burgess and Marshall, JJ., concur; Brace and Robinson, LL, concur in the opinion, but dissent from the conclusion of fact stated in paragraph YII. thereof, and therefore from the direction to sell said tract No. four; Yalliant, J., not sitting.