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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 shows that rentals to an in- The evidence further shows, as admitted considerable amount have been collected by in the pleadings, that the city has not leased the board of commissioners of the park from any of the strip for villa purposes, but has temporary tenants of such strip, who used it been able to receive a slight rental therefor for gardening purposes; that Henry Shaw from persons using it temporarily which it from the time of the establishment of said paid over to the plaintiffs as the assignees of park, and for 21 years thereafter, was con- Mr. Shaw under the residuary clause of his tinuously a member of the board of park will. The evidence further shows that if the commissioners provided for by the act and strip of land in question were now sold, it created in accordance with the terms of his would have a probable market value of $816,deed to the city of St. Louis, and that he 250. Upon the consideration of the pleadings selected all of the other members of said and the facts, the trial court rendered a de board, and that the entire management of cree adjudging complete title in the defendthe park was intrusted to it; that the board ants as prayed for in their cross-bill, and dishas continued the same, except that since his missed appellants' petition, from which judg. death he has been succeeded by the director ment this appeal was taken. of a quasi public charity, the Missouri Bo

Judson, Green & Henry, of St. Louis, for tanical Garden, wbich was first established appellants. William E. Baird and Truman by the provisions of his will. This latter P. Young, both of St. Louis, for respondents. charity was before the court, and its specific nature and the powers and the duties of the

BOND, J. (after stating the facts as above). trustees to whom Mr. Shaw had conveyed in 1. It is perfectly clear that the only question fee the bulk of his estate were fully defined on this appeal is the interest of Henry Shaw, in Lackland v. Walker, 151 Mo. 210, 52 S. W. and the proper enforcement thereof under 414. For the promotion and maintenance of the terms of his two deeds, whereby the propthis charitable trust created by his will, Mr. erty including the outer rim or strip of 200 Shaw conveyed to the 15 trustees named feet was vested in fee in the city for the purtherein the bulk of his real estate now shown poses and upon the conditions expressed in to be of the value of between $5,000,000 and the deeds. It cannot be that Mr. Shaw by his $6,000,000. In the management of their trust will could devise any particle of the estate said trustees, according to a report of their which he did not possess after his grant of receipts and disbursements for the year 1907, the lands in question, nor could he transmit received $178,091.36, and expended $171,074.- to his residuary devisees, the plaintiffs, any 26, leaving a balance on hand of $7,017.10. other remedy for the enforcement of the inThe residuary clause of Mr. Shaw's will, un- terests and rights retained by him than he der which plaintiffs claim is, to wit:

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 shali 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 the grantees, or was reserved to the grantor. said trustees. To bave and to hold to them The meaning of these words is not aided or and the survivors of them, and their successors in said trust forever upon the said uses helped by the conclusion reached by this and trusts above mentioned."

court when it conceded the power of the trusIn the first paragraph of the will of Henry tees to whom a great estate had been convey. Shaw, where there was a general devise of ed in furtherance of a different charity de his real estate to the trustees of the Botanical scribed in the last will of Henry Shaw to Garden, a clause is contained which excepts vary the details of its administration. For from said general devise the lands in dispute that case (151 Mo. 210, 52 S. W. 414) presentin this case, in the following terms:

ed 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 substancial 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 newal to a sale outright to meet the necesTower Grove Park."

sities of a definitely created and established The evidence shows that in consideration charity. This the court permitted them to do of the conveyance to it of the land for park in order to prevent the frustration of the purposes, the said city of St. Louis sold its paramount purpose of the donor. Mr. Shaw bonds, and devoted their proceeds, amounting was a lover of flowers, and had devoted much to $360,000, to the improvement of the of his life to their cultivation, and had laid grounds, and three years thereafter, and con- out on his residence grounds a botanical gartinuously up to the present time, has applied den and constructed a library and museum $25,000 of money raised by taxation to the thereon. This and the remainder of his annual maintenance of said park, and that, vast estate was devised by him to the trusas provided in the act of the Legislature au- tees named in his will for the perpetual mainthorizing the conveyance of this property by \ tenance of a botanical garden, accessible to 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 is designed to do, under the authority of the in the will to lease the real estate conveyed state, was the establishment of a park for to them for a term of 60 years, with a cove the common benefit of the public, a proper pant for perpetual renewal, were entitled, civic motive on the part of the city, and a upon the impossibility of effecting such leases, philanthropic benefaction by Mr. Shaw. to make an alienation of the property for the This is demonstrated by the fact that the support of the charity. That ruling merely precaution (though unnecessary) was taken to gave the power to vary the method of admin- apply to the Legislature for an act establishistration of the trust, but not to alter the ing and naming the park, describing the purposes or objects of the charity, nor to lands to be conveyed, providing a board of change its character as created by its found-control and management, authorizing the city er. But in the instant case the plaintiffs are to expend immediately and subsequently the not asking to be allowed to sell any real es- sums mentioned in the act, exempting the entate conveyed to them on account of the im- tire property from any burdens of taxation, possibility of the performance of any duty and providing, further, that "it shall be held 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 Mr. Shaw executed his deed of indenture to not to plaintiffs, but to another trustee, who, the city, conveying to it the lands by the and not plaintiffs, was charged in the deed, same description contained in the enabling devoting it to a wholly different charity, with act, and imposed, among others, a condition the duty to lease it for a particular purpose, that 200 feet in width on the outer portion ornamental to the park, and pay the rent of said lands should be leased by the city in realized in that mode only to a grantor of specified lots, on terms of 30 years before whom the plaintiffs are merely the assignees. renewal, for the purpose of villa residences, The plaintiffs in this case occupied no such and the city should "pay over the rents for status as they did in that case. There they such leasing forever to Henry Shaw and his desired to convey the fee vested in them, to heirs, executors, administrators and assigns.” subserve a charity which was richly endowed, The indenture then provides that if any of but hampered in the use of its property. said conditions are broken in the lifetime of Here, the defendant city is the trustee of a Shaw, “the said property and all its improvepublic charity wholly disconnected with the ments thereon shall at once revert to said other of which it is the conjoint founder Shaw and absolutely vest in him in fee as with the donor of the land (for it made it a if the conveyance had not been made”; but park by paying $360,000 to improve it and if violated after his death, then a similar reappropriates $25,000 annually for its main- verter should take place to an appointee of tenance), and since it has turned out that Shaw for the use of the Botanical Garden, defendants cannot rent for a special purpose or to it is then incorporated. It is not neceswhich would enable plaintiffs, as assignees, sary to consider any of the other conditions to secure the rent thus collected, they are upon which the fee was vested in the city, seeking to cause defendants to sell the prop- except the ones above quoted relating to the erty and give them the total proceeds, esti- leasing of the strip by the board of commismated at $816,000 if the fee is sold. In oth- sioners, for all the others have been fully er words, in the case cited plaintiffs sought to performed. The one in question, moreover, be granted, in the performance of their du- has been expressly and specially restricted ties as trustees, the right to vary in the mat- by the deed poll made by Mr. Shaw three ter of administration, a trust of property to years after the execution of his indenture which they had title. Here they are seeking with the city to a “willful violation” by the to obtain property to which another trustee city or said commissioners of the requireholds the title, for another charity, although ment to lease said strip for villa residences they admit such other trustee, holding the and pay the rents to him or whomsoever he title for a definite charitable and public trust, may appoint. The grantor in said deed also has without fault been unable to find tenants expressly reserved the right to enforce that for a special leasing required by its charita- condition as to leasing by mandamus or othble appropriation and pay the rent to plain- er appropriate remedy. This partial waiver tiffs as assignees of the grantor, Henry Shaw. and modification of the conditions in quesHere, plaintiffs seek to obtain a title or its tion by Mr. Shaw is an absolute estoppel by proceeds, which was not given to them. In deed as against him or his assigns, the plainthe case cited they sought to dispose of an tiffs. Such was the purpose and effect of his asset which belonged to them, and the full confirmatory deed. It was executed to relax title to which was vested in them. It is evi- the stringency of the condition of forfeiture dent that the decision in Lackland v. Walker, which had been inserted in the prior deed of supra, bears no analogy to the case in hand, indenture between the city and Mr. Shaw. It and sheds no light on the meaning of the was clearly out of the power of Mr. Shaw by words contained in the two instruments un- his subsequent confirmatory deed, nor did he city got under the prior deed. He might and with the flowers and forestry within. He de did modify his right to invoke a breach of the signed the park and its surroundings to precondition of his former deed, but he could sent the view of a single landscape. Had he not change the character of the title previ- desired money out of this property he would ously vested in the city.

not have conveyed it to the trustees of the What, then, was the title under the first park, but would have reserved it to himself conveyance? That instrument by its terms to be devoted to trade or utilitarian uses. and as the sequence of the enabling act That he parted with the titles to carry out shows that it was framed to perpetuate a his purpose to make this strip an auxiliary to public charity in the form of a designated the park is also shown by his conduct. For park. This was the primary and paramount over 20 years he managed and ruled the park purpose of Henry Shaw, to achieve which he through its board. During that period he gave the state Legislature the exact boundary never sought in any way to disturb the conof the land which he intended to donate, and veyances which he made to this land, though obtained authority from it for the city to take he knew no leasing had been made of it, and such lands and provide at its expense for no rents paid over to him for the duty to do their improvement and maintenance, and to this was cast upon himself. To put the mathold them in fee simple title, and free from ter at rest he expressly covenanted that no any form of taxation, for the charitable pur- forfeiture should arise as to this condition poses described. As the giver of the soil for except for "willful violation." park purposes Mr. Shaw felt entitled to have To our minds it is patently plain that the a voice in ii's control and management. This first and fundmental purpose of Henry Shaw he secured by a life membership on its board was the creation of a park; that in pursuof commissioners, and the appointment by ance of that controlling object he desired to himself of all other members. He desired to improve the outer rim of the lands deeded to impress his personal views in the improve the park in a peculiar way suggested by his ment of a part of the land—its outer border own taste, and which he thought would emof 200 feet. This he designed to be an orna- bellish the park. His charity in this instance ment to the park by being made the site of vil- was the park. His method of furthering it la residences. He required the Board of Com- by an ornamental border was a mere suggesmissioners composed of himself and his ap- tion of his own fancy, which, if impossible pointees, to make leases for such edifices at 30 of accomplishment, he did not intend to be years before renewal, and provided that the used as an instrument to despoil a beneficent rents thus derived should be paid to himself or public charity of which he was a cofounder, his assigns. His controlling object was the es- and which expressed his primary purposes. tablishment of the park, whose government III. The language of his deed of gift conwas retained in his hands. He believed that ditioning the continuance of the estate upon a most artistic effect would be added to the a future compliance with certain conditions, general plan of the park if it should have a including the one as to leasing this strip, border of picturesque residences with “pas- brings that requirement directly within the sageways through leading to the inner park definition of a condition subsequent. Such a grounds." His idea was that this would en-condition if it has any effect, defeats a vesthance the beauty of the approaches to the ed estate. The rule for determining a conpark, which he evidently beheld with the dition subsequent is thus expressed by a "prophetic eye of taste” as a scene of drive- standard authority: ways, 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 may accompany or follow it, and if the act may entrances. The thought dominating his mind the estate, or if from the nature of the act to

as well be done after as before the vesting of was the effect of a colorful and exquisite be performed, and the time required for its border as an adjunct to that park, to estab- performance, it is evidently the intention of lish which he had invoked the power of the the parties that the estate shall vest, and the state and the financial aid of the city and its grantee perform the act after taking possession,

then the condition is subsequent." Washburn services as the holder of the title in fee of on Real Property (5th Ed.) vol. 2, p. 7. the land donated to this great public charity.

The habendum clause of the indenture reFrom a reading of the act and the deeds un-ferring to this and other conditions is, to der which this charity was created, it can

wit: not 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, wit." he conveyed to the trustee for the public If anything could add to the certainty and park. He was not concerned about adding definiteness of the foregoing language, it is to his private fortune. What engrossed his comprised in the following provision of the mind was the project of beautifying the park deed with reference to the breach of any of by entrances to its inner drives and courses the conditions upon which the property was through a picturesque setting in harmony conveyed, to wit:

"It is hereby expressly provided and this con- ! ther the condition or the covenant, since veyance is made upon the express condition i there has been no willful refusal either to that if said conditions upon which said convey, lease the property or to pay the rent, and ance is made or any of them shall be violated in the lifetime of said Henry Shaw, the said prop- that is the test which Mr. Shaw fixed as the erty and all improvements thereon shall at once standard of obligation on the part of the city. revert to said Shaw, and absolutely vest in him

Our conclusion is that whether the proviin fee as if the conveyance had not been made and if said conditions or any of them shall be sion as to leasing this strip was a condition violated after the death of said Shaw, then the subsequent or a mere covenant or agreement said estate hereby conveyed and all improve on the part of the trustee, in either event no ments therein shall go to and be vested in redress can be granted in the present action ; whomsoever said Shaw may appoint for the use of the Missouri Botanical Garden or di- it not being claimed that defendants have rectly in said Garden whenever the said is in- "willfullyrefrained from renting the propcorporated as authorized by law."

erty for villa purposes and paying over its The foregoing clauses of the deed show that proceeds, and that being the only ground on the estate was fully vested when the deed was which plaintiff would have a shadow of right made, and provide that it shall remain vest- to sue defendants either at law or in equity. ed “80 long' as certain conditions of a nature IV. The error which runs through all the which could not be performed until after the contentions of appellants is that they seemvesting of the estate are observed. It fur- ingly overlook the real nature of their relather provides for a future reverter of the tions to the property which they seek to sell property. This language of the deed contains or sequester. When their assignor, Mr. Shaw, every element necessary to create a condi- reserved a right in himself and his assigns tion subsequent, and cannot be distinguished to the incidental earnings of a part of the therefrom under the definition above quoted. land donated by him to the trustee for a pubWhile legal exactitude postulates that the lic park, he did not thereby detract one whit condition as to the leasing of the strip is from the title which he had vested in the simply a condition subsequent, and therefore trustee for the public charity. He merely neither Henry Shaw nor his heirs could take said to this trustee in effect: advantage, except by a re-entry or equivalent "Make a part of the property held by you acts, for a breach, yet plaintiffs would be in for the public park an ornamental inclosure, no better position if we were able to construe with inlets and outlets to the recreation grounds

of the park. Whatever rent you collect by folthe deed to have simply created a covenant to lowing my directions as to the improvements of pay rent received for'a specified renting, to this beautifying border, you will pay to me or Mr. Shaw, which was assigned to them. The my assigns." reason is that if the requirement as to pay- In so stating, in substance, Mr. Shaw ing the rent received for villa residences is would be addressing himself, for he was the not a condition of the continuance of the es- head and the selector of the executive board tate in the grantee, then it cannot trench upon of the park, and charged with the duty of its that estate, and the present action is wholly entire government, and specially charged misconceived. This suit is necessarily predi- | with the duty as to making such leases of cated upon the theory that the title to the the ornamental rim of the land given by him strip sought to be sold is in equity vested in to the park. He did not, during his whole the plaintiffs, who are asking for the proceeds life, perform that requirement. And, as has of its sale. But no title whatever could ac- been shown, three years after assuming the crue to plaintiffs if the clause in question management of the park, by his solemn deed was simply a collateral covenant or obliga- he released the city, as trustee of the land, tion assumed on the part of the city. For on from any obligation arising out of this clause that hypothesis, its nonperformance could of his deed, except a “willful" refusal, and not affect the title conveyed, but would sim- reserved to himself only the right to resort ply furnish a basis for an action for damages to mandamus, or other appropriate remedy, at law. A covenant to pay rent to Mr. Shaw | to enforce action as the leasing, if he so deor his assigns for a specified use of the prop- sired. Upon his death, appellants as his aserty, whether observed or not observed, could signees became entitled only to enforce this have no relation whatever to the title convey requirement in the method to which he had ed for charitable purposes. It might involve restricted it, and by the means which he a question of liability, but it could not, in had fixed in his lifetime. The misconception the nature of things, disturb the title vested of appellants is as to the nature of the inin the trustee, nor defeat the charitable pur- terest transmitted to them. It was at most pose for which it was granted and held for a mere succession to the rights of contract the trustee. Taking either horn of the which existed between the city and Mr. Shaw dilemma that the language under review, of under the two deeds executed by him. The the donating deed, created either a condition rights thus devolved by Mr. Shaw were not subsequent (which we think it did), or that greater, by being assigned to the appellants, it created only an obligation on the title hold than if he had given them to a faithful server (the city) to pay the rent which it might ant or a personal friend. The fortuitous fact receive from this prescribed method of leas- that appellants happened to be the trustees of ing, the result is equally inescapable that the title to the bulk of Mr. Shaw's estate

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 bad 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 be 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 beld that when the language of a deed ment in such a petition that it was impos- relied upon to create a condition subsequent sible to make them? We think the question did not, in express terms or by clear implicaanswers itself, and that it cannot be serious- tion, show the intention of the parties to ly urged that a court of equity would, upon create such a condition, it would be held to be such a showing, virtually decree a forfeiture only a covenant between the parties, the reaof the title to a part of the land conveyed son given by him being that otherwise a by him in carrying out his object of creat- vested estate would be defeated, which was ing a public charity for the common benefit against the policy of the law if it could be of the people of the city, and at such costs avoided by any reasonable construction of to them.

the terms of the grant. That case is concluIn a suit in equity brought to recover title sive against the right of appellants to recover to property conveyed on condition to support in this suit, for it distinctly shows that the the grantor, which was not complied with reason the courts are averse to upholding a during the lifetime of the grantee, this court condition subsequent is that it will have the said:

effect, if upheld, of divesting the title of a "The answer to this is that a court of equity grantee, whereas a covenant does not. It, never lends its aid to enforce forfeiture under therefore, by any stretch of construction any circumstances (Livingston v. Tompkins, 4 Johns. Ch. (N. Y.] 415 [8 Am. Dec. 598]), and (which we do not concede) the clause of the as we cannot consider this a proceeding at law deed, relating to the payment to Shaw, or to recover the possession of the land upon the his assigns, of rents collected villa legal title that would have reverted to the plain- leasings, could be held to be only a tiff upon an entry for the breach of the condition, the judgment must be reversed and the tract obligation, or anything else less than petition dismissed." Messersmith v. Messer- a condition subsequent, it would for that very smith, 22 Mo. loc. cit. 372.

reason have no effect upon the title of the That doctrine has never been departed from grantee in the deed, which would be wholly in this state. Sease v. Cleveland Foundry undisturbed either by its performance or nonCo., 141 Mo. loc. cit. 496, 42 S. W. 1084; performance, and appellants would be relegatMoberly v. Trenton, 181 Mo. 646, 81 S. W. ed to another action if they could show any 169; Pomeroy's Equity (2d Ed.) 88 459, 460; breach of such covenant. And this is preciseStory's Equity (13th Ed.) p. 652, and furnishes ly what was done in a suit brought to forfeit the correct solution of the question raised the title of a grantee and annul the deed to on this appeal. For however disguised, him for an alleged breach of covenant which whether by terming the claim made by appel- it was claimed was the cause of the deed. lants a covenant or reservation in trust, it after reviewing the cases and pointing out necessarily means one and the same thing, the distinction arguendo between conditions that they are seeking to cancel the convey- subsequent, which would uproot a vested title, ances of their assignor of the fee-simple title and covenants or other obligations between to the property in question subject to chari- the parties, which would not have that effect, table uses, in order to obtain for themselves it was ruled that the deed then before the the “net proceeds” of the sale of the property court disclosed that the clause relied upon by "authorityof a decree of this court. To to defeat it was merely a covenant. Wherethat relief they are not entitled, either un- fore, this court dismissed the suit in equity der the pleadings or evidence contained in for the reason that it was not the proper this record, nor would their petition have forum for the recovery of damages for the survived a general demurrer.

nonperformance of a covenant, and that a 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

on

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