Volume 176 — Missouri Reports

<p>1. Wills: rules of construction. Rules for the construction of wills are: first, the intention of the testator must be ascertained from the whole instrument; second, the words used must be understood in the sense indicated by the whole instrument; third, where the words used create an absolute estate that estate will not be cut down to a less estate by ambiguous words, inferential in their intent; and, fourth, where an absolute estate is granted in one clause of a will, such grant can not be impaired, cut down or qualified in a subsequent clause except' by words as affirmatively strong as those which create the absolute estate.</p> <p>2. -: -: FEE SIMPLE: ABSOLUTE LIFE ESTATE: POWER OF disposal: unambiguous limitation. The testator, after giving and dedicating one acre of ground to a cemetery, in the second clause of his will said: “I give'and bequeath unto my wife the residue of my lands,” and then by a subsequent clause added: “It is my will that my property, real and personal, hereby bequeathed to my wife shall be hers absolutely during her natural life to use and enjoy as she may see proper, and at her death, if there should be anything left, my will is that it be vested and applied to the use of the Lone Jack Baptist Church, used as may be thought most conducive to the advancement of the Christian religion.” Held, first, that the word “absolutely” does not enlarge the estate devised, but simply means that the estate given to the wife is to be used and enjoyed by her unlimited by any conditions; second, the words used in the last clause are not “ambiguous or inferential in their intent,” but are a clear and explicit limitation on the absolute grant contained in the second clause; third, the will created a life estate in the widow; fourth, the words, “shall be hers absolutely during her natural life to use and enjoy as she may see proper,” are very strong and emphatic language, and not only gave her tho right to use and enjoy the property as it then was, but created in her the power of disposing of the same, since it was made “hers absolutely.”</p> <p>3. -: power of disposal: exercise. Where the life tenant is given the power of disposal, deeds by the life tenant which disclose that they are for a valuable consideration and undertake to convey the estate in fee, sufficiently indicate an exercise of that power, and convey to the grantee whatever title the testator had, and not merely the life estate of the life tenant.</p> <p>4. Conveyances: mistake in description: sufficiency of evidence. Mere general declarations by witnesses that the property was sold and the purchaser took possession, and that the grantor included land he did not own and did not include land he did own, are not sufficient to correct a mistake in the description of the land. That evidence is material, but it should be supplemented by the testimony of the scrivener, and declarations or requests of the grantor as to the property intended to be conveyed, or, in the absence of such testimony, other facts and circumstances should be introduced in evidence.</p> <p>5. Decree: sufficiency. A decree which undertakes to correct a mistake in a deed, and is to take the place of that deed in the chain of title, should be full and specific as to the correction, and is not sufficient if it simply grants “the prayer of the cross-bill” and adjudges the title to be in certain persons.</p>

— Sim. Roland Hughes, Special Judge. Tlae only proposition presented in this case is as to whether, or not the court was right in granting a new trial for any error in the giving of instruction 5 for and on behalf of the defendants.

— Hon. Jas. T. Neville, Judge. If the word had been “survivor,” it would have been clear what the testator intended, and no difficulties would have arisen as to his meaning, as it is.obvious that there could be but one survivor of the three persons mentioned in the item.

Mandamus. Relator’s constitutional rights are infringed and abridged by this ordinance, and are necessarily involved in the decision and judgment of its cause. There was no reason for it to complain of any denial in the circuit court, since that tribunal accorded to it the full protection of the Constitution. Its constitutional guarantees were denied for the first time by the Court of Appeals, and it is now entitled to have its cause transferred to the Supreme Court.

<p>1. Streets: construction and maintenance: contract. It is lawful for the board of public works of St. Louis to advertise for and let together, in one contract and to the same contractor, a contract for the reconstruction of a street and its maintenance for a period of years.</p> <p>2. -: -: penalty of fifteen per cent: interest: special law: constitutional. The provision of the St. Louis charter which allows for the improvement of a street a recovery of fifteen per cent interest per annum if the taxbill is not paid within six months after demand, is constitutional and valid. Such provision is not in violation of the Constitution which prohibits the General Assembly to pass any local or special law “fixing the rate of interest,” for in no sense is that fifteen per cent “interest,” although inaptly so denominated in the charter; but it is in reality a penalty to secure prompt payment, imposed for the neglect of duty.</p> <p>3. -: -: -: NATURE OF work and penalty. Formerly every man was subject to the duty of working so many days every year upon the public roads, and penalties were prescribed for those who failed to respond to an' order to do such work. Then as the natural and inevitable development of the system of improving roads in thickly populated communities, the public (or city) was given the authority to have the work done and to charge the cost thereof to the owners of the abutting property specially benefited by the improvement; and to insure the prompt payment of that cost a penalty for delay in payment was imposed. The principle for imposing the penalty is the same in each case: In the former it was a penalty for not working in person; in the latter, it is a penalty for not paying for the work done by another.</p> <p>4. —-: -: -: power. The same power that gives the State the authority to impose a penalty of one per cent per month for failure to pay general taxes gives the city of St. Louis the right under-its charter to impose a penalty of fifteen per cent per annum after demand for failure to pay a special assessment of benefits, although a benefit assessment is not a tax.</p>

Prohibition. The contention of plaintiff is, that the judge of the Cape Girardeau Court of Common Pleas has no authority to issue a writ of injunction, in vacation, returnable to the Cape Girardeau Court of Common. Pleas; that the writ issued by the judge of the court of common pleas in this instance was issued without the authority of law, and that the court of common pleas has no jurisdiction to hear and determine the same.

— Hon. Samuel Davis, Judge. (1) The mansion house and plantation were sold by the executor under order of the probate court for the payment of debts, and out of the proceeds received by him the executor paid off and discharged said deeds of trust. Until dower was assigned her, appellant was and is entitled to the widow’s quarantine in said land.

Certiorari. (1) The Kansas City Court of Appeals has no original jurisdiction to try a case of this kind, unless the proceedings are originally instituted in that court. Const., sec. 12, art. 4; sec. 22, art. 6; sec. 4, amend. 1884; ch. 73, R. S. 1899. (2) The filing of the motion for a change of venue, as decided by the Court of Appeals, divested the lower court of jurisdiction.

— Hon. Argus Coco, Judge. (1) The instruction offered at the close of the interpleader’s case should have been given, because: (a) The right to interplead, under the statute, being in the nature of an action in replevin engrafted upon a suit by attachment, is a suit at law, whereas whatever rights the wife obtained through the note and the chattel mortgage securing it, being without the intervention of a trustee, are enforcible only in equity.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The petition in this case shows that plaintiff sues as a “citizen and property-owner and taxpayer for himself, and on behalf of all others similarly interested,” thus evidencing the purpose of preventing a multiplicity of suits and presenting a proper case for equitable interposition, for the right to intervene for the purpose of preventing a multiplicity of suits is a distinct head of equity jurisdiction.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The allegations of the petition show that a court of equity is without jurisdiction, and notwithstanding their allegation to the contrary, they have a plain, adequate and complete remedy at law. Sec. 7, R. S. 1889; secs. 7078, 7084, 7085, 1993, 2207, 7085. Where a statutory remedy exists, equity will not interfere or assume jurisdiction. Schlector’s App., 60 Pa. St. 155.

— Sura. E. M. Hughes, Judge. (1) Nannie S. Spratt should not be permitted to renounce this will, and ber written acceptance of it, because her acts in this case are fraudulent. Twenty-eight thousand dollars and more of this estate was personalty.

<p>1. Negligence: sounding gong: negative evidence. The averment that defendant was guilty of negligence in not sounding the gong on its street car as it approached a street crossing, is the statement .of a negative, and the proof to sustain it must necessarily be of a negative character. Ordinarily that can he done only by witnesses who were in a position to hear and who gave attention to hear, but who did not hear it.</p> <p>2. -: -: TURROSE: ACTUALLY SEEING: FAILURE SHOWN BY defendant. The only purpose of sounding the gong on a street car is to attract attention and give warning that the ear is approaching, and if the injured person in fact saw the elose-by car coming, the failure of the motorman to sound the gong can have no place in the case. Nor can plaintiff go to the jury on the theory established by defendant’s testimony that he did not ring the gong, for that would impeach his own testimony that he did see the car. So that where defendant’s testimony is that a van wagon got on the track in front of the car and between it and plaintiff, and remained there until the ear was within thirty-five feet of the crossing, which made it impossible for plaintiff to see the motorman or the motorman to see plaintiff, and then the car was too close to plaintiff to be stopped in time to avoid striking him, the sounding of the gong may have given plaintiff warning, but he can not go to the jury on that theory, because to permit him to do so would De to impeach his own testimony that he had seen the car approaching.</p> <p>3. -: looking and listening. Where the facts surrounding the accident show that it was plaintiff’s obvious duty to look and listen before crossing a street car track, an! defendant’s evidence indicates that if he had looked or listened he could, by the exercise of ordinary care, have avoided the accident, an instruction telling the jury that if he neither looked nor listened, he could not recover in spite of the fact that defendant’s servants were guilty of some negligence which contributed to his injury, is proper.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The note secured by the deed of trust having been barred by the statute of limitations relating to proof of claims against estates of decedents, the power of sale conferred by the deed of trust was extinguished and plaintiff acquired no title by the trustee’s deed, and the court erred in rendering judgment for plaintiff. E. S. 1899, sec. 4276; Eyermann v. Piron, 151 Mo. 116; Little v. Reid, 75 Mo.

— Hon. Henry G. Riley, Judge. (1) The court erred in the admission of evidence offered by respondent. The Cape Girardeau Court of Common Pleas has both common-law and probate jurisdiction. R. S. 1899, sec. 2, p. 2579. In the administration of the estate of John Albert, it was exercising its probate jurisdiction, and its procedure therein is governed by the law applicable to probate courts.

Louis City Circuit Court . — Hon. P. R. Flitcaft, Judge. (1) The instruction asked by defendant and refused should have been given. It declares what is the settled law of this State, that a judgment is conclusive on all persons who are parties to the suit in which it was rendered, and those claiming under them.

— Hon. E. M. Hughes, Judge. (1) The defendant should have been charged $1.75 per set for all orders prior to April 17, 1899. (2) Plaintiffs could not raise the price per set until they had given notice of the change in the price of material. (3) The defendant had a right to damages for a breach of the contract for the 102 sets sold by plaintiffs and distributed in Missouri by the Mansur & Tebbetts Implement Company.

— Hon. Jas. Gibson, Judge. (1) (a) The reversal and remanding of the first condemnation case by this court and the subsequent dismissal thereof by the city, in the circuit court, was all done after the passage of the ordinance repealing the ordinance upon which said first proceedings were based, and directing the dismissal of such proceedings in the Supreme Court and in the circuit court.

— How. J. H. Stover, Judge. (1) The trial court erred in overruling plaintiff’s motion for judgment non obstante veredicto, for the reason that on the pleadings and the undisputed evidence there was no issue for submission to the jury, and plaintiff was and is entitled to judgment.

Prohibition. (1) Assuming that the proceedings are in equity (which relators deny) to foreclose a mortgage or deed of trust, the sale of the property .made therein must be confirmed by the court. (2) The purchaser of property at a sale thereof made in a proceeding to foreclose a mortgage or deed of trust in a court of equity is not entitled to a writ of assistance or possession to put him in possession of the same, prior to the confirmation of said sale by the court.

<p>1. Appeal: INSITEEICIENCY OE EVIDENCE: no motion eob new trial. Where there is no motion for a new trial incorporated in the bill of exceptions the appellate court can not consider an assignment that the evidence is insufficient' to sustain the verdict.</p> <p>2. -: -: -: preserved in the recobd. A copying by the clerk of a motion for a new trial into the record proper, does not preserve it or any part of the bill of exceptions for review. Such motion can be preserved only in the bill of exceptions, since it is a matter of exception.</p>

Eon. J. E. Slover, J udge.. (1) Defendants employed plaintiff as a broker upon the stipulated commission of $5,000, 'to procure a purchaser for defendants’ ranch and cattle, located in… Held: as a matter of law, that this ended plaintiff’s agency. Whether this agency was revoked by defendants was to be gathered from a consideration of the whole letter and' all the facts and circumstances as shown in the evidence. This was a question of fact, to be determined by the jury.

Louis City Circuit Court. — Now. N. D. Wood, Judge. (1) This policy is a Missouri contract. The rights and obligations of the parties to it are controlled and determined by the statutes of Missouri in force when the policy was issued, April 9, 1896, no matter what the language or stipulations of the policy itself may be. Cravens v. Ins. Co., 148 Mo. 599; Equitable Society v. Clements, 140 U. S. 232; Price v. Ins. Co., 48 Mo. App. 294.

Habeas Corpus. (1) The Local Option Law is unconstitutional because it punishes a given act more severely than the same act is punished by the general law of the State. State v. Burchard, 144 Mo. 83.

<p>1. Deeds: intention of parties. The courts can not give effect to the intention of parties to a deed if that intention contravenes some inflexible rule of law.</p> <p>2. -: testamentary in character. A deed on its face declared that it was to be held by the maker till his death and then was to be delivered to the grantee, and the evidence showed that it was held by him until two weeks before his death and then placed in the grantee’s hands “to take care of.” Held, that it was testamentary in character, and did not pass a present interest in the land to the grantee, and hence was not good as a deed, although all the parties thereto intended that it should take effect at the maker’s death. And the evidence showing that in turning over the deed to the grantee he did not make an unequivocal delivery and relinquishment thereof, it did not pass the title to the grantee.</p> <p>3. -- — : -: delivery. A deed by an old man and his wife, without consideration, but a warranty in form, conveyed certain lands to their son, “upon the express condition” that the grantors were “to live on the farm till their death as one of the family and to hold the deed in their possession till their death; then this deed is to be delivered” to the grantee. After executing this deed the father lived about eighteen months, and then two weeks before his death, at the age of seventy-eight being- very feeble, he stated to a daughter'that he had made a deed to the son, and that he thought he would “be up and have it recorded before now.” He said to his wife, “I will just give it up to him. He says he can take care of it.” He said he would “just give it into” the grantee’s “care to take care of it,” and his wife got it and gave it to him. Held, that the deed being testamentary in character, this evidence does not show such an unequivocal delivery as to make it a valid conveyance, for it falls short of a waiver of the express conditions of the deed.</p>

— Hon. Jos. D. Perkins, Judge. (1) The trial court erred in admitting evidence of the conversations, statements, interviews and alleged agreements between George H. Playter and George H. Bruen. Both were strangers to the suit, and to the contracts and transactions in controversy. (2) The trial court erred in admitting in evidence alleged statements, promises and agreements of George H. Bruen, there being no evidence of any authority in Bruen to bind or to speak for defendant.

— Hon. N. A. Franklin, Special Judge. (1) At the term the mandate was filed in the circuit court, plaintiff filed motion to have the court allow his attorneys a reasonable attorney’s fee and'to order the clerk to tax the same as costs in the case; and the court in which suit is brought shall, if plaintiff ohtain judgment, allow such, attorneys a reasonable fee for bringing and conducting such suit which shall be taxed against the defendant and paid as other costs in the case.

— Hon. R. Hirzel, Judge. (1) Unless defendant or his grantor, Stephan, was entitled to a patent from the Government upon the so-called location of the military bounty land warrant by .1 ohn' F. Stephan, as the assignee of Phillip Rausch, made on May 8, 1849, the finding and judgment should have been for plaintiff. Unless one or the other were so entitled to a patent, plaintiff, as a legal holder of the patent issued to him, can not be charged as trustee for defendant.

— Hon. J. L. Fort, Judge. The court erred in sustaining defendant’s demurrer to plaintiff’s evidence, and in instructing the jury to find for defendant. Richard Whitehead was not a trespasser upon the defendant’s side track; he was not a mere licensee, he was more than that. While in the car loading freight he was where he had a right to be.

— Hon. Jos. D. Perkins, Judge. At the close of evidence on the part of plaintiff the trial court should have sustained defendant’s demurrer to the evidence, and at the close of all the testimony should have directed a verdict in favor of defendant: First.

E. J. Broaddus, Judge. (1) The demurrers of tlie defendants to the amended petition admit to be true all facts therein which are well and properly pleaded. Hence, they admit the several errors and deviations charged in the amended petition. Shields v. Johnson Co., 144 Mo. 80; Butler v. Lawson, 72 Mo. 248; Goodson v. Goodson, 140 Mo. 215; Verdin v. St. Louis, 131 Mo. 74; Dodson v. Lo-mas, 113 Mo. 559.

— Hon. Samuel Davis, Judge. (1) The effect of the deed was to constitute Mary and the children tenants in common, each of the undivided one-sixth of the land. Allen v. Claybrook, 58 Mo. 126; Hamilton v. Pitcher, 53 Mo. 334; Powell v. Powell, 96 Am.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The first instruction given for defendant is fatally bad in conceding the defendant’s negligence as a contributing cause, and defeating the plaintiff if the deceased was herself negligent in going upon the track, leaving out of view the whole theory of the law as settled in this State — that, although the plaintiff may be negligent in going upon a track and failing to look and listen, yet, if the defendant, by its…

Louis County Circuit Court. — Hon. John W. Booth, Judge. (1) 'It appeared affirmatively and without conflict from plaintiff’s own testimony and that of his witnesses, that he was guilty of negligence proximately contributing to his injury. Indeed, it appeared affirmatively from his own evidence, that his injury was entirely due to his own negligence.

Louis City Circuit Court.— Hon. Jas. E. Withrow, Judge. (1) (a) No appeal lies from order of county court establishing district and approving report of commissioners, and, therefore the court had no jurisdiction to hear this- appeal, (b) Appeal is allowed only where the circuit court can give such judgment as the county court should have given, and nowhere is the circuit court in this State given authority to establish drainage districts. 'Bean v. Barton County Court, 33 Mo.

581 Appeal from Jackson Circuit Court. — Hon. Jas. H. Glover, Judge. (1) Mrs. Christopher contracted to deliver the notes and has failed to do so. The lower court annuls the contract and makes a new one. The contract being valid “the parties must abide by the contract as made; courts can not make a new contract for them.” Wood Machine Co. v. Bobbst, 56 Mo.

— Hon. E. M. Hughes, Judge. (1) The lessor road is liable for the acts of the operating road as though it were operating the road itself, and the action may be begun against either the lessor or lessee for the injury. Sec. 1060, R. S. 1899; Laws 1870, p. 90; Smith v. Railroad, 61 Mo. 17; Main v. Railroad, 27 Mo. App. 388; Brown v. Railroad, 27 Mo. App. 394; State ex rel. v. Railroad, 89 Mo. 523; McCoy v. Railroad, 36 Mo. App. 445; Price v. Barnard, Receiver, 65 Mo. App. 449.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) By the charter of St. Louis, the power to con-, struct and repair streets is one which must be exercised •by the mayor and assembly'by ordinance. The power to close streets is derived from the power to construct and repair streets. These powers can not be delegated by the mayor and assembly to the mayor and street commissioner.

.Louis City Circuit Court.— Son. D. D. Fisher, Judge. (1) The trial court erred in the following particulars: (a) In refusing to hear evidence as to the manner in which the special jury was selected; as to the class of citizens from whom selected; as to the exclusion from the panel of all citizens not of one class, (h) In overruling the motions to quash, having conceded that the facts stated in the motions were true.

<p>Special-Jury Law: constitutionax,. The law providing for the selection by the sheriff of a special jury in civil cases, the expense to be borne by the applicant therefor, is constitutional.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. - (1) There is no substantial proof that the death of the insured, Frederick Loesch, resulted from accidental means. A presumption must be based upon fact, and not upon inference or upon another presumption. Click v. Railroad, 57 Mo. App. 104; State v. Plass, 58 Mo. App. 152.

— Hon. H. C. Timmonds, Judge. (1) On reversal of case by Supreme Court defendant Jacob Walter was entitled to be restored to the land he had lost by decree of lower court. Grott v. Powell, 41 Mo. 420; Bank v. Bank, 6 Pet. 8; Eailroad v. Brown, 43 Mo. 294; 17 Am. and Eng. Ency. Law (2 Ed.), 810; Marks v. Cowles, 61 Ala. 299; Eeynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Major v. Collins, 17 I. App. 239; Smith v. Bohon, 12 Bush 448; McBain v. McBain, 15 Ohio St. 236, 86 Am.

Quo Warranto. (1) Information in the nature of a quo warranto is now the proper remedy where' a corporation having a legal existence has forfeited its charter as well as where a de facto corporation assumes to exercise corporate powers without authority. Scire facias having formerly been used in the first case and the information in the second. State v. Eq. Loan Ass’n, 142 Mo. 325.

<p>Por the reasons stated in State ex inf. Crow, Attorney-General, v. Atchison, Topeka & Santa Pe Railway Company, ante, page 687, the - writs of quo warranto in all the above cases'are quashed.</p>