CONCURRING OPINION.
GRAVES, J.— If I understand fully my brother • Bond’s opinion he reaches the right result. I believe that his views are my views, but for fear that his very concise way of stating things may not fully present my ideas I add a few words. I believe that the fee simple title to this 200-foot rim is in the city of St. Louis. By the first deed made there might have been broad rights reserved tó Mr. Shaw and his assignees. By the second deed this first deed in this respect was shorn oí much of its apparent potency, but whether this ‘ ‘ shearing” touches the rim tract might be a question. But to my mind there is one thing clear throughout this whole transaction, and that is that Mr. Shaw intended to not only make this 200-foot rim an ornament to the park, but he likewise desired such ornament to produce some revenue for the other child of his creation, the Botanical Garden. To this end he required that leases should be made, and the proceeds paid to him in his lifetime, and thereafter by his will to the Botanical Garden. In modifying his first deed he did not undertake to destroy all his rights or interest in this 200-foot rim. If he did not do more, he at least clearly left upon the city the duty to lease this rim in the manner designated in the first deed, but he may have limited his rights (a matter we leave open because of some peculiar language in the second deed) to a suit to compel performance in a case of a willful neglect to do this thing. It is a clear duty upon the part of the city to make an attempt^ in good faith, to rent this rim property as provided for in that first deed, and when so rented to pay over the rentals to the Botanical Garden. Unfortunately the pleadings in the case here *574proceed upon the theory that such cannot be done. Admissions in equity against common knowledge will not bind the conscience of the chancellor. ' The provision as to leasing does not limit the lease to a thirty-year period alone, but provides for renewals at the end of such periods. In my judgment, it is folly to say that ■ ground leases could not be made for a period of thirty years, with privilege in the lessee to renew the lease for a like period or periods at some reasonable rental value, and conditioned upon the placing of the villa residences on the lots as described in the deed. Extravagant rents might not be secured for these ground leases, but substantial annual rents could be secured, and to these rents the Botanical Garden is entitled.
This cannot be decreed in the instant case, because of the pleadings, but I add these few words, because I feel that Mr. Shaw has at least properly reserved for the Botanical Garden a remedy to enforce this right which he always had, and because my brother’s opinion does not emphasize this view. The opinion states that there may be a right to enforce the performance of this duty to rent. I desire to add that there is not only a duty imposed to rent, but that a clear right is reserved to enforce this duty/when there has been a willful neglect. This right was first in Shaw and by his will passed to the Botanical Garden.: Nor could the city escape this duty by showing an attempt to rent at fanciful prices. If the city, can get any substantial ground rental for the use of the described lots, it is its duty to rent. It should try to rent at reasonable or even low rental sums provided it can procure the erection of ornamental villa residences on these lots. Shaw intended not only to beautify the park by these villa residences, but to get some revenues for himself and assignees. His idea was to beautify the park, and at the same time support and maintain his other charity, the Botanical Garden. He was looking into the future, and what the future-will realize of his dreams, if *575dreams they should be called, should be left open for realization. It is clear that the instant judgment upon any theory should be reversed and the petition dismissed. With these added observations, I concur.
Lamm, G. J., and Brown, Bond and Faris, JJ., concur in these views also.SEPARATE OPINION.
WALKER, J.— I concur in the result reached in the majority opinion that this case should be reversed and remanded; but I am not in accord with the reasoning by which this conclusion is reached, and finding the divisional opinion of Commissioner Blair more nearly expressive of my views, I have, barring changes in phraseology, adopted same, and file it herewith as my separate opinion.
Appellants constitute the board of trustees of the Missouri Botanical Garden, under the will 'of Henry Shaw, deceased. Respondents are the city of St. Louis, the Attorney-General, and the persons constituting the board of commissioners of Tower Grove Park.
This suit was brought to procure a decree authorizing the sale, under restrictions and in lieu of leasing, of a strip of ground 200 feet wide surrounding Tower Grove Park in the city of St. Louis.
The court below denied the relief sought and, on the cross-bill, -gave judgment vesting the title in the strip mentioned in the city of St. Louis, for park purposes. ' •
In 1867, the Legislature passed “An Act to Create, Establish and Provide for the Government of the Tower Grove Park, of the City of St. Louis,” the most pertinent sections of which follow:
“Section 1. As much and such portions of the following described tracts or parcels of land, partly within and mostly without the present corporate limits of the city of St. Louis, to-wit: Bounded by Grand *576avenue on the east, Arsenal street or road on the south, Magnolia avenue, as now existing, on the north, and the King’s highway, so-called, on the west, in the city and county of St. Louis, as Henry Shaw may see fit to give, .grant and convey, to the city of St. Louis, for the purposes of a public park, shall be known and designated as the Tower Grove Park of St. Louis.
“Section 2. The said park shall be under the exclusive control and management of a board of commissioners, to consist of not less than five nor more than seven persons, who shall be named and styled the Commissioners of the Tower Grove Park, and who shall be appointed as hereinafter provided; but of which commissioners Henry Shaw, the donor to the city of St. Louis of the land for the said park hereby established, during his natural life, and after his death his successor, in the direction of the Missouri Botanical Garden, as he may create the same in any devise or conveyance which he may be authorized by law to make, shall be and constitute one member.
“Section 3. The following named person, Henry Shaw, and such persons as he may select, shall constitute the board of commissioners of said park. They shall hold their offices as such commissioners for five years from the time of the passage of this act, and until their successors are appointed and qualified. No member of said board shall receive any compensation for his services, but each commissioner shall, nevertheless, be entitled to receive for his personal expenses, in visiting and superintending' the said park, a sum not exceeding one hundred dollars per annum. . . .
“Section 18. The said board is hereby authorized to take and hold any gifts, devises or bequests that may be made to said board, upon such trusts and conditions as may be prescribed by the donors or grantors thereof, and agreed to by said board, for the purpose of embellishing or ornamenting said park, and shall annually make in its report a statement in detail *577of the condition and value of all such gifts, devises or bequests, and of the names of the persons by whom the same are so given, devised or bequeathed. . . .
“Section 24. As soon as the said Henry Shaw shall grant and convey to the city of St. Louis any land contained within the boundaries named in the first section of this act, the said land, and every part thereof so conveyed, so long as the same shall be held in fee by the said city of St.. Louis, and, in consideration of such grant and conveyance by him, shall be exempt from the payment of all State, county, municipal or other taxation imposed or to be. imposed under or by virtue of any law of this State whatsoever. ’ ’
The act further provided for the issuance of bonds by the city in the sum of $360',000', and the payment of this sum to the commissioners of the park, this being the money referred to in section 12 of the act which prescribed that the money so coming into their hands should be applied and used in fencing, improving, ornamenting and beautifying said park. It was also provided that after the lapse of three years from the passage of the act mentioned the city should annually levy and collect a tax sufficient to produce $25,000. to be used for the maintenance of the park.
In 1868 Henry Shaw and James S. Thomas, then mayor of the city of St. Louis, executed a deed to the property in question to the city of St. Louis, and in 1872 Henry Shaw executed a second deed modifying that of 1868. These deeds are set forth in full in the majority opinion.
A plat of Tower Grove Park showing the strip 200 feet wide here involved, indicated thereon by the numbers 2103, 2104, 2107, 2108, 4100', 4101, 4106, 4107, 4108 and 4109, appears opposite page 234, V'olume 151, Missouri Reports, and need not be reproduced here.
At the time of Henry Shaw’s death the land in the vicinity of Tower Grove P’ark was but little improved, *578being devoted, in the main, to market gardening, except the tract occupied by the Missouri Botanical Garden, which lay northwest of the park and practically adjoined it.
Henry Shaw died in 1889 and by his will (set out in Lackland v. Walker, 151 Mo. l. c. 222 et seq.) he devised to trustees all real estate owned by him at his death “within the following limits, to-wit, Grand avenue on the east, the road running from Grand avenue to the Old Manchester Road, and now known as Mc-Ree avenue dividing United States Survey 1519 and 3294, on the north; Arsenal street or road on the south, and King’s Highway and Old Manchester Road on the west; excepting such interests and estates as I have heretofore conveyed to, the city of St. Louis, by two deeds, one bearing date the 20th of' October, 1868, and the other bearing date July 9’, 1872, and do therein devise to the said city of St. Louis for Tower Grove Park,” and excepting certain other property not in. anywise involved here.
The property described in the two deeds. mentioned was situated within the general boundaries given in the will as quoted. It was not otherwise specifically mentioned in the will, but there was a general residuary clause devising and bequeathing all property of the testator, not otherwise disposed of, to the same trustees. The devise to these trustees included the Missouri Botanical Garden; and the function of the board of trustees thus created by the will was to maintain the .garden, and to that end to administer the other property devised to them for that purpose in the manner prescribed by the testator and deemed by him best fitted to accomplish his expressed purpose “of having for the use of the public a botanical garden easily accessible, which should be forever kept up and' maintained for the cultivation and -propagation of plants, flowers, fruit and forest trees, and other productions of the vegetable kingdom; and a museum and *579library connected therewith and devoted to the same and the science of Botany, Horticulture and allied objects.”
Since the death of Henry'Shaw much of the property surrounding the park and garden has been platted, sold and improved; streets have been paved; sewers constructed; and, in fact, the city has spread far beyond the property; in the vicinity are numerous streetcar lines connecting this portion of the city with others and making it easily accessible. Property around the park and across the avenues therefrom averages $40 or $50 per front foot in value, and the strip involved is estimated to possess a like value. The evidence is that $816,000 is a conservative estimate of its total value. The petition alleges and-the answer admits that in view of. established custom and individual conviction now prevalent in the city of St. Louis, the method of leasing prescribed by th*e deed of 1868 is impracticable and impossible.
Appellants contend Henry Shaw, in the deed of 1868, reserved a beneficial interest which under the will passed to them as trustees for the garden; and, having offered evidence that the income of the garden from other sources was so depleted by the payment of general and special taxes, paid and to be paid, as to .seriously interfere with the effectuation of Henry Shaw’s plans respecting the garden, pray a . decree authorizing the sale of the strip involved, under proper restrictions, either to the city of .St. Louis, if it desires to buy same for park purposes, or to private persons, the restrictions in the latter case to be of such character as to be in consonance with the purpose of the -grantor expressed in the deed of 1868.
Respondents contend that the requirement as to leasing in the deed of 1868 is a mere condition subsequent; that performance has become impossible and, consequently, the city holds the title relieved of all *580conditions and limitations; and on the city’s cross-bill the trial court decreed the title in the city.
I. The principal question in this case is as to the nature and extent of the interest the city took under the déed of 1868 in the strip of ground two hundred feet wide which is the subject-matter of this litigation.
The intent of Henry Shaw must be gathered from the entire deed. It expressly provides that the strip mentioned shall be kept leased upon long leases for villa residences in order to make it both "a source of ornament to said park” and a source of revenue.
The habendum clause is full of significance. The city is to hold the land in fee so long as it " complies with the following conditions [already expressly referred to in the granting clause] annexed to said grant, to-wit,” that all of said grant except the strip 200 feet in width shall be and remain a public park, etc., forever ; that no portion of said park shall ever be used for any other than park purposes, nor shall any revenue ever be raised from the use of any portion of said park except such as may be consistent with its said purpose and use and which revenue shall go to the maintenance of said park through the board of commissioners.
“ Fifth, that the board of commissioners of the Tower Grove Park shall from time to time cause to be leased the strip of land 200 feet.in width so surrounding said park in convenient lots,” etc., and pay the gross rents to Henry Shaw and to his heirs and assigns forever.
It is also provided that in case the conditions are violated in the lifetime of Henry Shaw, the property and improvements shall revert to Shaw; if violated after his death, then ‘ ‘ the said estate hereby conveyed and all improvements thereon 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” if incorporated. .
*581The correct construction of this deed is, that of the whole tract described only the 202.02 acres, as mentioned in the deed of correction of 1872 (i. e., that part within the strip here involved), was conveyed for park purposes in the proper sense. . The deed dedicates that portion to such purposes and expressly excepts the strip 200 feet wide, from that dedication. That strip was conveyed to the city clearly to enable it to control, as much as possible, the character of the improvements immediately adjacent to the park, and the grantor evidently expected that the erection, under proper restrictions, of villa residences on the strip adjacent to the park would not only furnish an ornamental border for same, but would induce similar improvements on the opposite sides of the streets and thus add materially to the beauty of the park itself. Whatever his hopes may have been, the fact is that he did not convey the fee in the strip 200 feet wide to the city. The city, therefore, under the deed of 1868 took as trustee for charitable uses and holds in that capacity.- It could not take a greater interest in the strip in question than the deed gave; and the deed, properly construed, gave the title to the strip to the city as trustee for the limited and express purpose of enabling it, under its directed use, to add to the beauty and enhance the value of the park as a pleasure resort.
The beneficial interest in the strip remained -the property of Henry Shaw, then the owner as well as creator of the Missouri Botanical Garden, and the deed is clear that his intentions were that at his death this interest should be devoted to the support of the garden.
The trustee, the city of St. Louis, contends that the so-called condition in the deed is impossible and, therefore, that it holds the entire estate rid of all conditions, under rules applicable to conditions subsequent. This contention ignores the well established doctrines *582that forfeitures are not favored and that the terms of a grant are not to be held to create an estate upon condition if another interpretation is reasonable. Courts ought to go to the intent of the grantor and should not permit the mere use of the word “condition” to fence them from it. If Henry Shaw had intended this strip 200 feet wide to be used for park purp°ses he could easily have said so. On the contrary he specifically designated that part of the tract intended to be devoted to such purposes and expressly excepted this strip from that designation. The interest he conveyed to the trustee, the city, in that strip, was conveyed so that it might protect that part of the tract constituting the park and enhance its beauty by controlling the character of the residences and structures immediately adjacent to it. This was the real interest the city took directly in' trust for the public. The authorities, are collected in the briefs of counsel.
The provision of section 24 of the Act of 1867 to the effect that "as soon as Henry Shaw shall grant and convey to the city of St. Louis any land contained within’ the boundaries named in the first section of this act, the said land and every part thereof shall be held in fee by the said city of St. Louis,” related necessarily to land conveyed for park purppses, as provided by the first section, and could not operate to change or enlarge an additional grant of a right or interest in land not given for park purposes within the meaning of the act, but to enable the city to protect the park surroundings.
The provisions of the act relating to the exemption of park property from taxation are of no consequence in this ease. Whether applicable or inapplicable, void or valid, is of no importance upon the question as to what interest the deed of 1868 conveyed. Nor is the deed in any sense invalidated by the rule against perpetuities. The deed itself evidences the fact that Henry Shaw’s ultimate intent was to devote, after his *583death, the income from the strip around the park to the support of the Missouri Botanical Garden. This garden, long before the institution of these proceedings, had become a great public charity, and the grant to it was validated by that fact, even if there could have been otherwise any substance in this contention when made by a mere trustee as the basis of a claim to the corpus of the trust estate; for whatever estate the city took, it took as trustee.
There was no waiver of any rights by the deed of 1872. That deed cleared some doubts as to the applicability of certain parts of the deed of 1868 to that part of the tract conveyed for park purposes, but expressly-asserted their applicability to the strip here involved, and in nowise modified or cut down the estate reserved.
The mention in that deed of the remedy by mandamus in case there was a wilful refusal to lease the ground was in no sense preclusive. Remedies existing under the deed of 1868 remained unchanged. -The language of the deed of 1872 leaves no doubt on this head.
It is urged, however, that the will does not devise to appellants any interest in the,strip around the park.
The first clause of the will ends all argument on this question. If Henry Shaw reserved any interest (and we hold he did) in the land about this park, that interest passed under the will to the plaintiffs’ predecessors in trust, even if the residuary clause of the will and the deed of 1868 itself be ignored in this connection.
The record does not disclose any substantial basis for what is said in respondents’ brief concerning the Statute of Limitations. Therefore, that phase need not be considered.
II. The conclusion having been reached that the deed of 1868 reserved an interest in trust in the strip *584in controversy and that this interest passed to and has vested in the plaintiffs as trustees of the Missouri Botanical Garden, the remaining questions have already been settled. They are identical with those presented in Lackland v. Walker, 151 Mo. 210. The charitable purpose to which the income from the land in controversy in this case was and is to be devoted is the same as in that, viz: the Missouri Botanical Garden. The defect in the mode of administration of the property, prescribed by the donor, is identical in the two cases. The power of the court to “vary the details of administration” is exactly the same.' It is a mere incident that the restrictions upon leases and structures upon the property involved were prescribed in that case for the benefit of the garden itself and .are prescribed in this, primarily, for the benefit of another great gift to the public. In this case, as in that, the purpose of the donor is the guiding star, and changes in details of administration, necessitated by circumstances unforeseen, ought to be made when such changes would effectuate that purpose. Upon this phase that case settles this. That the city holds the title makes no difference. It is the trustee for all who take under the deed. To the extent to which the beneficial interest is vested in plaintiffs it holds for them and for the public they represent. That the city is not the plaintiff makes no difference. Plaintiff’s right to a just decree is not affected by the fact that the legal title, in whole or in part, is deposited, so to speak, with the city for their benefit.
III. It follows that under our view of this case plaintiffs are entitled to the relief prayed; and if the city of St. Louis desires to acquire the land for park purposes and add it, freed from restrictions, to the tract conveyed to it by the deed of 1868 as Tower Grove Park,' it should be permitted to do so by any lawful method it may choose. To enable it to exercise *585this option, this judgment should be reversed and the cause remanded with directions to the trial court to hold the cause in abeyance for a period of twelve months. If at the end of that time the city shall not have acquired the land in controversy or have instituted proceedings for its acquisition, or, if having instituted such proceedings the city shall not prosecute the same speedily to a successful conclusion, then the trial court shall proceed to render judgment in this case as herein indicated. Before doing so,; the court may hear evidence upon the questions of the size of the parcels to be sold and the sort of restrictions as to the building lines and the character and cost and position generally of structures to be erected upon the lots sold, and shall include in its decree findings upon these matters and upon the character of restrictions generally to insure “that the property, when improved, will be pleasing and attractive to visitors” to Tower Grove Park and otherwise be an ornament* thereto, as contemplated in the deed of 1868.
■ This decree should in all respects follow, as nearly as may be, that in Lackland v. Walker, supra, care being taken to observe the rights of the city and, through it, the public, that the ornamental character of the strip two hundred feet wide as a border for the park may be permanently preserved.
Woodson, J., concurs in this opinion.