Opinion letter to the Honorable Joseph Jaeger, Jr.

Answer by Letter (Wood) January 21 > 1 970 Honorable Joseph Jaeger, Jr. Director or Parks 1204 Jefferson Building Jefferson City, ~assouri 65101 Dear Mr. Jaeger: OPINION LETTER NO. 14 F I L ~ :J I~ i l : . ··-.,.·------ This is in reply to your letter in which you inquire if the State Park Board can institute overnight camping at Babler State Park and it the Park Board can lease portions of Babler Park to political subdivisions or the state for public use. The deed of August 20, 1934, from Jacob L. Babler to the State of Missouri, recorded on August 23 , 1934, at Book 1313, page 22 of the St. Louie County records conveyed a fee simple determinable estate. Donehue v. Nilges, 266 S.W.2d 553 (Mo. 1954) ; Board v. Nevada School Dist., 251 S.W.2d 20 (Mo. 1952). That is, the State of Missouri was given a fee simple title with certain conditions attached, the breach of which vested in the grantor or his heirs the right of re-entry and reversion of title. Included among these conditions was that the property be continually used as a public park, that it never be reconveyed to third parties other than the City of St. Louis, County of St. Louis, or both jointly, that camp- ing or hunting never be permitted on the property, and that the property never be leased except to public park concessionaires. The land conveyed by this deed is recited to have been 864.- 723 acres in United States Surveys 1956, 909( 668, 152 and 459 in Township 45 North, Range 5 [sic; should be 3J East o~ St. Louis County, Missouri. Subsequent to the above deed, various adjoining tracts of land were given to the State of Missouri by different grantors, with the resalt of altering the boundary or Babler State Park prior to May, 1937. In a bill approved May 21, 1937, the General Assembly Honorable Joseph Jaeger, Jr. authorized the Governor, Attorney General, and the Game and Fish Commissioner to convey all of Babler State Park to Jacob L. Babler so that Jacob L. Babler could reconvey the entire park acreage to the State of Missouri subject to the terms and conditions or a Berpetual Endowment Trust Fund agreement {Laws 1937, pp. 514-518). Pursuant to this legislative authorization the aforesaid officials, on June 23, 1937, executed a deed to the park, including those · portions deeded to the state in the meantime by other grantors, back to Jacob L. Babler. This deed was recorded on June 23, 1937, at 11 a.m. in Book 1420, page 634, St. Louis County records. On June 23, 1937, Jacob L. Babler gave a deed to the entire park property to Lloyd C. Stark, Governor of the State, Roy McKit- trick, Attorney General, and Wilbur c. Buford, Game and Fish Com- missioner, for the use and benefit or the State or Missouri. This deed was made subject to the terms ot a Perpetual Endowment Trust Fund theretofore established on May 28, 1937 (Book 1438, page 572, St. Louis County records) by and between Jacob L. Babler, Grantor and Henry J. Babler, Richard J. Weidert, Wilbur c. Buford, Harland Bartholomew and Roy McKittrick, Trustees, reserving the right ot the Endowment Pund trustees to enter into the premises ot the state park and reserving also to said trustees the control and management or the state park as provided in the Endowment Fund agreement. This deed provided that in the event the Endowment Trust Fund was insufficient to meet expenses and maintenance or the park, then the trustees could--at their option--surrender possession and con- trol ot the park to the state free or the terms and conditions of the Endowment Trust Fund agreement, provided that the park would forever be known as the "Dr. Edmund A. Babler Memorial State Park." In ~ opinion, this 1937 deed trom Jacob L. Babler vested the State or Missouri with a fee simple title to the park property. This deed was filed tor record at 11:02 a.m., June 24, 1937, at Book 1476 , pages 91 through 94 or the St. Louis County records. The Perpetual Endowment Trust Pund agreement vested the trustees with t he power to "direct, supervise, and manage the Dr. Edmund A. Babler Memorial State Park" and to make suoh rules and regulations governing the park as "in their sole J udgxnent and discretion may be deemed advisable and necessary under the circumstances." (Article 4). The trust was irrevocable, perpetual, and not subject to termi- nation by the grantor , but the trustees were given the option. should the income from the trust fund prove insufficient to meet expenses or maintenance of the park, of surrendering posaession or the park to the state, in which event the state would be "in no wise bound by the terms of said trust thereafter" {except for the name ot the park) (Article 7). In his will executed on the 17th day or July, 1 9~2, Jacob L. Babler bequeathed the residue or his estate to a charitable trust -2- Honorable Joseph Jaeger, Jr. which was to continue and endure tor twenty years from and after the date of hi~ death. The trustees were designated as Richard Weidert and Henry J. Babler (testator's brother) and they were directed to use the principal and income or the trust to assist the State of Missouri in maintaining, beautifying, developing and possibly enlarging the Dr. Edmund A. Babler Memorial State Park. Jacob Babler died on May 21, 1945, and his \fill was admitted to probate on July 19, 1945. Richard Weidert declined trusteeship and Mercantile Trust Company National Association or St. Louis was named co-truetee to serve with Henry J. Babler. Henry J. Babler died on Pebruary 17, 1956, and Mary Anne O'Brien was named to suc- ceed him as a co-trustee . By Laws of 1965, page 387, the }ttssouri State Park Board waa authorized to receive all personal and real property bequeathed or devised to the State by Jacob L. Babler and to use such property solely tor the "maintenance, beautification and further development or enlargement or the Dr. Edmund A. Babler J.1emorial State Park in St. Louie County" (Section 253.350, RSMo). 'Yle understand that the Perpetual Endowment Fund trustees surrendered possession and control of the park to the State Park Board in 1965, and such action did, under the terms of the 1937 deed, set aside all provisions of the trust except the requirement that the park be called the "Dr. Edmund A. Babler Memorial State Park." On f~y 6, 1968. ~~y Anne O'Brien and the Mercantile Trust Company National Association, as co-trustees under the will of Jacob L. Babler. conveyed various tracts in St. Louis County to the Missouri State Park Board. (trustees deed recorded on May 8, 1968, at 3:~8 p.m., Book 6323, pp . 127~ through 1289 ot the St. Louis County records) It is my opinion that the 1937 deeds conveying Babler State Park (1) from the State of Missouri to Jacob L. Babler and, (2) from Jacob L. Babler to the State of Missouri, had the errect of erad1oat1ng tor all purposes the August 20, 1934 deed from Jacob L. Babler to the State of Itissouri. "· • • It will be remembered that Henry c. Page conveyed by warranty deed to Charles E. Page in 1863, and afterwards by warranty deed to Emma s. Page in 1869. Both or those deeds conveyed an indefeasible estate in fee-simple absolute. Afterwards, in September 1893. Emca reoonveyed to Henry, and in December Charles reconveyed to Henry. In this way Henry became again seised and possessed of an indefeasible estate in fee-simple absolute .••• " (Wilson v. Pisher, 72 s.w. 665 (Mo. 1903) l.c. 669) Since the deed of June 23, 1937, from the duly author1:!:ed officers of the State of Missouri to Jacob L. Babler restored an indefeasible -3- Honorable Jeeeph Jaeger, Jr . tee estate in Jacob Babler of the property theretofore conveyed by him to the State of flissour1, his subsequent deed or June 23, 1937, to the State of Missouri vested in t he State of russouri a tee simple estate to all or the property previously conveyed by him in 1934, but without t he conditions and limitationsl and especially the pos- sibility of reverter, contained in the 193q deed. Applying a sl~ghtly different principle of law, t he same re- sult is reached because the possessor or a possibility of reverter (Jacob L. Babler) may divest himsel f or such by releasing it to the tenant in tee simple determinable (The State or Missouri). The release has the effect of turning t he fee simple determinable into a fee simple absolute (Smith v. School District No. 6 of Jefferson Count~, 250 S.W.2d 795 (Mo. 1952); 28 Am. Jur. 2d, Section 185, pp . 3 5, 326). The conveyance on June 23, 1937, by Jacob oabler to the State of Missouri could be considered such a release, thereby extinguishing the conditions subsequent and the possibility or re- verter that had been contained in the 1934 deed. This deed of June 23, 1937, in my opinion, vested a fee simple absolute title to t he property previously conveyed by Jacob Babler in 1934, not- ldthstanding that it was given subject to the terms of the Perpetual Endowment Trust Fund agreem.gnt of t4ay 27, 1931. This is so because or t he absence in this latter deed or language creating a condition subsequent or providing for a re-entry or a reversion of the title in t he event or non-compliance with the terms of the Perpetual En- do\fiD.ent ':'rust Fund. (Duncan v. Academy or the Sisters of the Sa- cred Hoart at St. Joseph, lUosour1, 350 S.\1.2d 814 (.to. 1961); Chouteau v. Ci.ty or St. Louis, 55 S.':l.2d 299 (Mo. on bane 1932)). Although Jacob Babler made no express mention in his will or t he Perpetual Endowment Trust Fund, it would appear from his state- ment tnat he had previously "given and deeded to the State of ru.aaouri, a large tract • • • as a public parlc," (from Item 15 of the Will) that he recognized the continued validity or the Endowment Trust . Consequently, he apparently i ntended that the trustees of the tcsta- ~entary t~ust created by the will \iould manage properties, both real and personal, separate and apart from the properties previously given to the State of Missouri subject to the control and management of the Perpetual Endowment Pund trustees. Therefore, the deed from t1ercantile Trust Company National Association and Mary Anne O'Brien, to the State Park Board upon the expiration of the testamentary trust would not have affected the property conveyed to the state in 1937 and thus could not have effected a surrender or the posses- sion and control vested in the Perpetual Endowment Fund trustees. However, as pointed out above the Perpetual Endowment Fund trustees did surrender possession and control of t he park property to the State Park Board in 1965 ; and the State Park Board not., has full possession, control, and management of the park property acquired in 1937. All of that part of the State Park ~hi ch \'las deeded to -~- Honorable Joseph Jaegert Jr. the Missouri State Park Board by the Heroantile Trust Company Na- tional Association and l<!ary Anne O' Brien in 1 968~ to the extent t hat such property is separate and distinct from that conveyed to the state in 1937, would certainly be free and clear of the restric- tions or the 1937 deed. In view of the foregoing and 1n answer to your first question, I am of the op1ni.on that there is no restriction on overnight camping applicable to the lands ~ the present Dr. Edmund A. Babler Memo- rial State Park which were conveyed to the State Park Board by Mercantile Trust Company National Association and Mary Anne O'Brient trustees , on May 6, 1968. There is no specific camping prohibition in the 1937 deed to the state and to the extent the lands conveyed thereby remained subject to tho general control or the Perpetual En- dowment FUnd trustees, such control expired when the Perpetual En- do-~ent Fund trustees surrended possession to the State Park Board in 1965. Consequently, there is nothing to interfere with the Park Board's use of 1937 land for camping. Ao to your second question, whet her or not the State Park Board may lease portions of the Babler State Park to political subdivi- sions of this state tor public use, it is my opinion that the Park Board may so do so because the General Assembly kas authorized the Board uto convey such lands or interest therein and [to use] the proceeds of such sale" f or the maintenance, beautification and fur- t her development or enlargement of the Babler Park (Section 253 . 350- 2, P~Mo) . (State ex rel. St . Louis County v. Evans, 139 S.W. 2d 967, 969 (Mo. en bane l~or;-warner v. Fry, 228 S. W.2d 729, 730 (Mo. 1950)) . Furthermore, Section l or House Bill No . 711, 73rd General Assembly (Section 253.350-l, RSMo ) provides that the Endowment FGnd shall be compooed of both real and personal property given to the state for the benefit of Babler Park by the Ifill of Jacob L . Babler or otherwise. Section 2 or House Bill No. 711 (Section 253.360-1, RSMo) provides t hat "All incomo, interest, rights or rent earned through the operation or the fund shall also be cre- dited to the fund" thus manifesting a legislative intent that the Park Board may in ita discretion l ease real property belong.ing to the fund and use such rental income toward the 11mai.ntenance, beaut1- f"1cat1on, and further development or enlargement" of the park (Sec- tion 253.350-1, RSMo) . Yours very truly, JOHN C. DANFORTH Attorney General -5-