land in dispute for villa residences or col- | Mr. Shaw, the entire property has been exlect any rent from such leases. empted from every form of taxation. The evidence further shows, as admitted in the pleadings, that the city has not leased any of the strip for villa purposes, but has been able to receive a slight rental therefor from persons using it temporarily which it paid over to the plaintiffs as the assignees of Mr. Shaw under the residuary clause of his will. The evidence further shows that if the strip of land in question were now sold, it would have a probable market value of $816,250. Upon the consideration of the pleadings and the facts, the trial court rendered a decree adjudging complete title in the defendants as prayed for in their cross-bill, and dismissed appellants' petition, from which judgment this appeal was taken. Judson, Green & Henry, of St. Louis, for appellants. William E. Baird and Truman P. Young, both of St. Louis, for respondents. The evidence shows that rentals to an inconsiderable amount have been collected by the board of commissioners of the park from temporary tenants of such strip, who used it for gardening purposes; that Henry Shaw from the time of the establishment of said park, and for 21 years thereafter, was continuously a member of the board of park commissioners provided for by the act and created in accordance with the terms of his deed to the city of St. Louis, and that he selected all of the other members of said board, and that the entire management of the park was intrusted to it; that the board has continued the same, except that since his death he has been succeeded by the director of a quasi public charity, the Missouri Botanical Garden, which was first established by the provisions of his will. This latter charity was before the court, and its specific nature and the powers and the duties of the trustees to whom Mr. Shaw had conveyed in fee the bulk of his estate were fully defined in Lackland v. Walker, 151 Mo. 210, 52 S. W. 414. For the promotion and maintenance of this charitable trust created by his will, Mr. Shaw conveyed to the 15 trustees named therein the bulk of his real estate now shown to be of the value of between $5,000,000 and $6,000,000. In the management of their trust said trustees, according to a report of their receipts and disbursements for the year 1907, received $178,091.36, and expended $171,074.26, leaving a balance on hand of $7,017.10. The residuary clause of Mr. Shaw's will, un-terests and rights retained by him than he der which plaintiffs claim is, to wit: BOND, J. (after stating the facts as above). I. It is perfectly clear that the only question on this appeal is the interest of Henry Shaw, and the proper enforcement thereof under the terms of his two deeds, whereby the property including the outer rim or strip of 200 feet was vested in fee in the city for the purposes and upon the conditions expressed in the deeds. It cannot be that Mr. Shaw by his will could devise any particle of the estate which he did not possess after his grant of the lands in question, nor could he transmit to his residuary devisees, the plaintiffs, any other remedy for the enforcement of the in had at the time of his death. With this in "Also all the residue of my estate real and mind, the only thing left in this case is to personal or mixed, which I may leave, or be possessed of at the time of my death, which shall determine from the language of the two innot have been in this my will devised, bequeath-struments what interest or estate passed to ed and disposed of, I devise and bequeath to said trustees. To have and to hold to them and the survivors of them, and their successors in said trust forever upon the said uses and trusts above mentioned." In the first paragraph of the will of Henry Shaw, where there was a general devise of his real estate to the trustees of the Botanical Garden, a clause is contained which excepts from said general devise the lands in dispute in this case, in the following terms: the grantees, or was reserved to the grantor. The meaning of these words is not aided or helped by the conclusion reached by this court when it conceded the power of the trustees to whom a great estate had been conveyed in furtherance of a different charity described in the last will of Henry Shaw to vary the details of its administration. For that case (151 Mo. 210, 52 S. W. 414) presented only the question of the power of the trus"Excepting such interests and estates as I tees, who held a fee-simple title for the sushave heretofore conveyed to the city of St. tention of a charity, to vary their administraLouis, by two deeds, one bearing date the tion from a method of substantial sale by a twentieth day of October 1868, (2) and the oth-leasing with a covenant for perpetual reer bearing date the ninth of July 1872, and do therein devise to the said city of St. Louis for Tower Grove Park." The evidence shows that in consideration of the conveyance to it of the land for park purposes, the said city of St. Louis sold its bonds, and devoted their proceeds, amounting to $360,000, to the improvement of the grounds, and three years thereafter, and continuously up to the present time, has applied $25,000 of money raised by taxation to the annual maintenance of said park, and that, as provided in the act of the Legislature authorizing the conveyance of this property by newal to a sale outright to meet the necessities of a definitely created and established charity. This the court permitted them to do in order to prevent the frustration of the paramount purpose of the donor. Mr. Shaw was a lover of flowers, and had devoted much of his life to their cultivation, and had laid out on his residence grounds a botanical garden and constructed a library and museum thereon. This and the remainder of his vast estate was devised by him to the trustees named in his will for the perpetual maintenance of a botanical garden, accessible to is designed to do, under the authority of the state, was the establishment of a park for the common benefit of the public, a proper civic motive on the part of the city, and a philanthropic benefaction by Mr. Shaw. This is demonstrated by the fact that the precaution (though unnecessary) was taken to apply to the Legislature for an act establishing and naming the park, describing the lands to be conveyed, providing a board of control and management, authorizing the city to expend immediately and subsequently the sums mentioned in the act, exempting the entire property from any burdens of taxation, and providing, further, that "it shall be held the public under the restrictions contained | to the instruments themselves to ascertain in his will. In its ruling upon the case then their legal import. presented (151 Mo. 210) the court held that II. What Mr. Shaw and the city of St. Louthe title-holding trustees, who were directed in the will to lease the real estate conveyed to them for a term of 60 years, with a covenant for perpetual renewal, were entitled, upon the impossibility of effecting such leases, to make an alienation of the property for the support of the charity. That ruling merely gave the power to vary the method of administration of the trust, but not to alter the purposes or objects of the charity, nor to change its character as created by its founder. But in the instant case the plaintiffs are not asking to be allowed to sell any real estate conveyed to them on account of the impossibility of the performance of any duty with which they have been charged in re-in fee by the city." In pursuance of this act spect to it, for this real estate was conveyed not to plaintiffs, but to another trustee, who, and not plaintiffs, was charged in the deed, devoting it to a wholly different charity, with the duty to lease it for a particular purpose, ornamental to the park, and pay the rent realized in that mode only to a grantor of whom the plaintiffs are merely the assignees. The plaintiffs in this case occupied no such status as they did in that case. There they desired to convey the fee vested in them, to subserve a charity which was richly endowed, but hampered in the use of its property. Here, the defendant city is the trustee of a public charity wholly disconnected with the other of which it is the conjoint founder with the donor of the land (for it made it a park by paying $360,000 to improve it and appropriates $25,000 annually for its maintenance), and since it has turned out that defendants cannot rent for a special purpose which would enable plaintiffs, as assignees, to secure the rent thus collected, they are seeking to cause defendants to sell the property and give them the total proceeds, estimated at $816,000 if the fee is sold. In other words, in the case cited plaintiffs sought to be granted, in the performance of their duties as trustees, the right to vary in the matter of administration, a trust of property to which they had title. Here they are seeking to obtain property to which another trustee holds the title, for another charity, although they admit such other trustee, holding the title for a definite charitable and public trust, has without fault been unable to find tenants for a special leasing required by its charitable appropriation and pay the rent to plaintiffs as assignees of the grantor, Henry Shaw. Here, plaintiffs seek to obtain a title or its proceeds, which was not given to them. In the case cited they sought to dispose of an asset which belonged to them, and the full title to which was vested in them. It is evident that the decision in Lackland v. Walker, supra, bears no analogy to the case in hand, and sheds no light on the meaning of the words contained in the two instruments under consideration. We, therefore, will look Mr. Shaw executed his deed of indenture to the city, conveying to it the lands by the same description contained in the enabling act, and imposed, among others, a condition that 200 feet in width on the outer portion of said lands should be leased by the city in specified lots, on terms of 30 years before renewal, for the purpose of villa residences, and the city should "pay over the rents for such leasing forever to Henry Shaw and his heirs, executors, administrators and assigns." The indenture then provides that if any of said conditions are broken in the lifetime of Shaw, "the said property and all its improvements thereon shall at once revert to said Shaw and absolutely vest in him in fee as if the conveyance had not been made"; but if violated after his death, then a similar reverter should take place to an appointee of Shaw for the use of the Botanical Garden, or to it if then incorporated. It is not necessary to consider any of the other conditions upon which the fee was vested in the city, except the ones above quoted relating to the leasing of the strip by the board of commissioners, for all the others have been fully performed. The one in question, moreover, has been expressly and specially restricted by the deed poll made by Mr. Shaw three years after the execution of his indenture with the city to a “willful violation” by the city or said commissioners of the requirement to lease said strip for villa residences and pay the rents to him or whomsoever he may appoint. The grantor in said deed also expressly reserved the right to enforce that condition as to leasing by mandamus or other appropriate remedy. This partial waiver and modification of the conditions in question by Mr. Shaw is an absolute estoppel by deed as against him or his assigns, the plaintiffs. Such was the purpose and effect of his confirmatory deed. It was executed to relax the stringency of the condition of forfeiture which had been inserted in the prior deed of indenture between the city and Mr. Shaw. It was clearly out of the power of Mr. Shaw by his subsequent confirmatory deed, nor did he attempt so to do, to alter the title which the city got under the prior deed. He might and did modify his right to invoke a breach of the condition of his former deed, but he could not change the character of the title previously vested in the city. with the flowers and forestry within. He designed the park and its surroundings to present the view of a single landscape. Had he desired money out of this property he would not have conveyed it to the trustees of the park, but would have reserved it to himself to be devoted to trade or utilitarian uses. That he parted with the titles to carry out his purpose to make this strip an auxiliary to the park is also shown by his conduct. For over 20 years he managed and ruled the park through its board. During that period he never sought in any way to disturb the conveyances which he made to this land, though he knew no leasing had been made of it, and no rents paid over to him for the duty to do this was cast upon himself. To put the matter at rest he expressly covenanted that no forfeiture should arise as to this condition except for “willful violation." To our minds it is patently plain that the first and fundmental purpose of Henry Shaw was the creation of a park; that in pursuance of that controlling object he desired to improve the outer rim of the lands deeded to the park in a peculiar way suggested by his own taste, and which he thought would embellish the park. His charity in this instance was the park. His method of furthering it by an ornamental border was a mere suggestion of his own fancy, which, if impossible of accomplishment, he did not intend to be used as an instrument to despoil a beneficent public charity of which he was a cofounder, and which expressed his primary purposes. What, then, was the title under the first conveyance? That instrument by its terms and as the sequence of the enabling act shows that it was framed to perpetuate a public charity in the form of a designated park. This was the primary and paramount purpose of Henry Shaw, to achieve which he gave the state Legislature the exact boundary of the land which he intended to donate, and obtained authority from it for the city to take such lands and provide at its expense for their improvement and maintenance, and to hold them in fee simple title, and free from any form of taxation, for the charitable purposes described. As the giver of the soil for park purposes Mr. Shaw felt entitled to have a voice in its control and management. This he secured by a life membership on its board of commissioners, and the appointment by himself of all other members. He desired to impress his personal views in the improvement of a part of the land-its outer border of 200 feet. This he designed to be an ornament to the park by being made the site of villa residences. He required the Board of Commissioners composed of himself and his appointees, to make leases for such edifices at 30 years before renewal, and provided that the rents thus derived should be paid to himself or his assigns. His controlling object was the establishment of the park, whose government was retained in his hands. He believed that a most artistic effect would be added to the general plan of the park if it should have a border of picturesque residences with "passageways through leading to the inner park grounds." His idea was that this would enhance the beauty of the approaches to the park, which he evidently beheld with the "prophetic eye of taste" as a scene of driveways, walks, fountains, rare forestry, tem"If the act or condition required do not necples, pools, grass plots, playgrounds, all en-essarily precede the vesting of the estate, but circled with embowered villas and winding entrances. The thought dominating his mind was the effect of a colorful and exquisite border as an adjunct to that park, to establish which he had invoked the power of the state and the financial aid of the city and its services as the holder of the title in fee of the land donated to this great public charity. From a reading of the act and the deeds under which this charity was created, it cannot be imagined that Mr. Shaw had any oth"To have and to hold the same unto the said er motive in reserving to himself and his as-city of St. Louis in absolute property in fee so signs the rent for the villas than to dispose long as the said city shall conform and comply of an incidental revenue derived from an with the following conditions annexed to said ornamentation of a part of the grounds which grant, to wit." he conveyed to the trustee for the public park. He was not concerned about adding to his private fortune. What engrossed his mind was the project of beautifying the park by entrances to its inner drives and courses through a picturesque setting in harmony | conveyed, to wit: III. The language of his deed of gift conditioning the continuance of the estate upon a future compliance with certain conditions, including the one as to leasing this strip, brings that requirement directly within the definition of a condition subsequent. Such a condition if it has any effect, defeats a vested estate. The rule for determining a condition subsequent is thus expressed by a standard authority: may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent." Washburn on Real Property (5th Ed.) vol. 2, p. 7. The habendum clause of the indenture referring to this and other conditions is, to wit: If anything could add to the certainty and definiteness of the foregoing language, it is comprised in the following provision of the deed with reference to the breach of any of the conditions upon which the property was "It is hereby expressly provided and this conveyance is made upon the express condition that if said conditions upon which said conveyance is made or any of them shall be violated in the lifetime of said Henry Shaw, the said property and all improvements thereon shall at once revert to said Shaw, and absolutely vest in him in fee as if the conveyance had not been made and if said conditions or any of them shall be violated after the death of said Shaw, then the said estate hereby conveyed and all improvements therein shall go to and be vested in whomsoever said Shaw may appoint for the use of the Missouri Botanical Garden or directly in said Garden whenever the said is incorporated as authorized by law." The foregoing clauses of the deed show that the estate was fully vested when the deed was made, and provide that it shall remain vested "so long" as certain conditions of a nature which could not be performed until after the vesting of the estate are observed. It further provides for a future reverter of the property. This language of the deed contains every element necessary to create a condition subsequent, and cannot be distinguished therefrom under the definition above quoted. While legal exactitude postulates that the condition as to the leasing of the strip is simply a condition subsequent, and therefore neither Henry Shaw nor his heirs could take advantage, except by a re-entry or equivalent acts, for a breach, yet plaintiffs would be in no better position if we were able to construe the deed to have simply created a covenant to pay rent received for a specified renting, to Mr. Shaw, which was assigned to them. The reason is that if the requirement as to paying the rent received for villa residences is not a condition of the continuance of the estate in the grantee, then it cannot trench upon that estate, and the present action is wholly misconceived. This suit is necessarily predicated upon the theory that the title to the strip sought to be sold is in equity vested in the plaintiffs, who are asking for the proceeds of its sale. But no title whatever could accrue to plaintiffs if the clause in question was simply a collateral covenant or obligation assumed on the part of the city. For on that hypothesis, its nonperformance could not affect the title conveyed, but would simply furnish a basis for an action for damages at law. A covenant to pay rent to Mr. Shaw or his assigns for a specified use of the property, whether observed or not observed, could have no relation whatever to the title conveyed for charitable purposes. It might involve a question of liability, but it could not, in the nature of things, disturb the title vested in the trustee, nor defeat the charitable purpose for which it was granted and held for the trustee. Taking either horn of the dilemma that the language under review, of the donating deed, created either a condition subsequent (which we think it did), or that it created only an obligation on the title holder (the city) to pay the rent which it might receive from this prescribed method of leas ing, the result is equally inescapable that plaintiffs are not entitled to enforce ei ther the condition or the covenant, since there has been no willful refusal either to lease the property or to pay the rent, and that is the test which Mr. Shaw fixed as the standard of obligation on the part of the city. Our conclusion is that whether the provision as to leasing this strip was a condition subsequent or a mere covenant or agreement on the part of the trustee, in either event no redress can be granted in the present action; it not being claimed that defendants have "willfully" refrained from renting the property for villa purposes and paying over its proceeds, and that being the only ground on which plaintiff would have a shadow of right to sue defendants either at law or in equity. IV. The error which runs through all the contentions of appellants is that they seemingly overlook the real nature of their relations to the property which they seek to sell or sequester. When their assignor, Mr. Shaw, reserved a right in himself and his assigns to the incidental earnings of a part of the land donated by him to the trustee for a public park, he did not thereby detract one whit from the title which he had vested in the trustee for the public charity. He merely said to this trustee in effect: "Make a part of the property held by you for the public park an ornamental inclosure, with inlets and outlets to the recreation grounds of the park. Whatever rent you collect by following my directions as to the improvements of this beautifying border, you will pay to me or my assigns.' In so stating, in substance, Mr. Shaw would be addressing himself, for he was the head and the selector of the executive board of the park, and charged with the duty of its entire government, and specially charged with the duty as to making such leases of the ornamental rim of the land given by him to the park. He did not, during his whole life, perform that requirement. And, as has been shown, three years after assuming the management of the park, by his solemn deed he released the city, as trustee of the land, from any obligation arising out of this clause of his deed, except a "willful" refusal, and reserved to himself only the right to resort to mandamus, or other appropriate remedy, to enforce action as the leasing, if he so desired. Upon his death, appellants as his assignees became entitled only to enforce this requirement in the method to which he had restricted it, and by the means which he had fixed in his lifetime. The misconception of appellants is as to the nature of the interest transmitted to them. It was at most a mere succession to the rights of contract which existed between the city and Mr. Shaw under the two deeds executed by him. The rights thus devolved by Mr. Shaw were not greater, by being assigned to the appellants, than if he had given them to a faithful servant or a personal friend. The fortuitous fact that appellants happened to be the trustees of the title to the bulk of Mr. Shaw's estate for the use of another charity, prompted by his æsthetic nature and disposition, gave | Brookfield, 81 Mo. loc. cit. 509, 51 Am. Rep. them no higher right as assignee of the as- 243, cited in appellants' brief, simply reset sought to be reached in this suit than any affirms the rule that an illegal condition, or individual would have had to whom Mr. one made impossible by inevitable accident, Shaw might have made a similar assignment. or by the act of the grantor, will be held void, If Mr. Shaw in his lifetime had filed a peti- and no reverter of the estate of the grantee tion seeking, as in this case, to forfeit the can take place for the nonperformance of title in the city and to sell this part of the valid conditions. That doctrine cannot be land which had been contributed by him to invoked by appellants for two reasons: First, this public park, and on the faith of which none of the conditions of this deed have been the state exempted every portion of it from violated, there being no willful default by detaxation, and the city expended, up to the fendants; secondly, equity may for good reapresent time, about a million and a half dol- sons relieve against forfeitures, it does not lars in development and in maintenance, enforce them. Moreover, if there was a failwould he not have assumed in so doing an ure for 21 years to comply with this requireattitude beyond the scope of any equitable ment, it was caused by the nonaction of the relief, in view of the terms of his grant and grantor in the deed himself, its acceptance and his own conduct in re- In Studdard v. Wells, 120 Mo. 25, 25 S. W. fraining from making any such leases or at- 201, Judge Black, speaking for the court, cortempting to make any, coupled with a state-rectly held that when the language of a deed ment in such a petition that it was impossible to make them? We think the question answers itself, and that it cannot be seriously urged that a court of equity would, upon such a showing, virtually decree a forfeiture of the title to a part of the land conveyed by him in carrying out his object of creating a public charity for the common benefit of the people of the city, and at such costs to them. In a suit in equity brought to recover title to property conveyed on condition to support the grantor, which was not complied with during the lifetime of the grantee, this court said: "The answer to this is that a court of equity never lends its aid to enforce forfeiture under any circumstances (Livingston v. Tompkins, 4 Johns. Ch. [N. Y.] 415 [8 Am. Dec. 598]), and as we cannot consider this a proceeding at law to recover the possession of the land upon the legal title that would have reverted to the plaintiff upon an entry for the breach of the condition, the judgment must be reversed and the petition dismissed." Messersmith v. Messersmith, 22 Mo. loc. cit. 372. That doctrine has never been departed from in this state. Sease v. Cleveland Foundry Co., 141 Mo. loc. cit. 496, 42 S. W. 1084; Moberly v. Trenton, 181 Mo. 646, 81 S. W. 169; Pomeroy's Equity (2d Ed.) §§ 459, 460; Story's Equity (13th Ed.) p. 652, and furnishes the correct solution of the question raised on this appeal. For however disguised, whether by terming the claim made by appellants a covenant or reservation in trust, it necessarily means one and the same thing, that they are seeking to cancel the conveyances of their assignor of the fee-simple title to the property in question subject to charitable uses, in order to obtain for themselves the "net proceeds" of the sale of the property by "authority" of a decree of this court. To that relief they are not entitled, either under the pleadings or evidence contained in this record, nor would their petition have survived a general demurrer. That case is conclu IL, relied upon to create a condition subsequent V. Before disposing of this appeal we will breach of a mere covenant, even if it went consider the cases cited by appellants. to the whole deed, did not annul it. Haydon Clarke v. The Inhabitants of the Town of v. Railroad, 222 Mo. 145, 121 S. W. 15. That |