Volume 286 — Missouri Reports

<p>1. STREET IMPROVEMENT: Damages: Establishment of Grade: Legislative Matter. The contention of an abutting property owner that the grade of the street should have been established one or two blocks further south, and that if a lighter grade had been established in front of his property the street could have been used as a highway for more general purposes and would not have damaged but would have benefited his property, is a legislative matter, and, in the absence of fraud or corruption in the enactment of the ordinance or a departure to his injury-from the powers conferred upon the municipal legislature, is not relevant in a determination of the amount of damages to his property caused by the change in the grade.</p> <p>2. -: Invalid Ordinance: Resolution: Indorsement:. Review. A contention that no recommendation of the Board of Public Works was indorsed on the resolution of the council for the change in the grade of a street, as required by the city’s charter, and that therefore the ordinance passed in pursuance to the resolution was void, unless in some way made in the trial court and its ruling preserved by an exception, cannot be considered on appeal. Although the resolution was offered in evidence, such an objection to it cannot he made for the first time in the appellate court.</p> <p>3. -: Documentary Evidence: Resolution of Municipality. In the absence of any proof of a defect in the resolution adopted by a city council other than that presented by its incorporation in an abstract, every intendment in favor of its legality will be indulged by the appellate court; for the records kept of muncipal proceedings establish themselves and are received in evidence without proof of the facts they recite.</p> <p>4. -■: Resolution; Indefiniteness. A resolution adopted by the municipal legislature to establish the grade of a street will not be held to be “so indefinite and uncertain as to invalidate the ordinance based thereon” if the street has been graded in conformity therewith without a complaint of any character as to the nature or sufficiency of the improvement.</p> <p>5. -: Remonstrance. It is necessary that a remonstrance against a street improvement be signed by the owners of a majority of the feet fronting on the street.</p> <p>6. -: Change of Grade in Other Blocks. The owner of property abutting on a stre'et is not entitled to recover damages because of the change in the grade of a street located one block from his . property. Before he can recover damages he must show that the change in the grades was made in that part of the street on which his property fronts.</p> <p>7. -: For Benefit of Railway Company: Damages in Prior Proceeding. An ordinance provided a method by which the court might be authorized to appoint a special commission to ascertain and report the damages to property, except that owned by the city and a certain terminal railway company, arising from the changes in the grades of certain public highways; it further provided that the railway company, under conditions stated, should pay the awards made by the commission as damages to property affected . by the changes, and that was done; and it is claimed that the instant proceeding, which resulted in the change of the grade of the street in front of appellant’s property, was based upon that ordinance. Held, that if the changes in the former grade of a street situate a block from appellant’s property was made under that ordinance for the benefit of the railway company, and appellant was damaged by the changes thus made, such damages should nave been claimed and adjusted as provided in that ordinance, and cannot be allowed in the instant proceeding, which was begun under a later ordinance.</p> <p>8. -: -: Motive. Courts will not inquire into the motive of the municipal legislature in adopting the resolution and ordinance by which a street improvement was authorized, where it had power to act and has acted in the prescribed legal manner.</p> <p>9. -: Damages: Question for Jury. Whether the owner is entitled to damages because of a change in the grade of the street on which his property abuts is a question of fact for the jury; and where they not only heard the evidence, bat personally examined the property before returning their verdict, finding that the owner ■had not been damaged, and that verdict has received the approval ' ' of the trial court, it will not be disturbed on appeal.</p>

<p>1. PLEADING: General Allegation: Demurrer Ore Tenus: Motion for Definiteness. An allegation that “Arabelle Newson took Jasper Gipson into her home and adopted him as her legally adopted heir” would he good against a demurrer ore tenus as a statement of statutory adoption, hut subject, perhaps, to a motion for more definiteness of detail.</p> <p>2. CHILDREN: Adoption: By Deed. The only mode of adopting a child known to the law in 1871 was hy a deed executed, acknowledged and recorded in the county of the residence of the person executing the same, as in the case of a conveyance of real estate; and a married woman was then capable of adopting by joining her husband' in such a deed.</p> <p>3. -: -: Contract to Adopt: Character of Proof. Prior to 1871, and since, courts of equity have specifically enforced contracts to adopt a cMld made upon sufficient consideration, like tfie relinquishment of his custody and services by his parentsi and services thereafter rendered by him to the adopting parent; but courts have been exacting about the cogency of the 'evidence necessary to prove such a contract was made, but the character- of the proof is unimportant where the other evidence clearly shows there was no contract to be enforced.</p> <p>4. -: -: By Deed: Partition. An action for partition based on plaintiff’s claim that their father had been adopted by deed does not lie if defendants are in adverse possession, for issues of statutory adoption involve legal and not equitable principles.</p> <p>5. - — : —•-: Dost Deed: Oral Proof. A deed to adopt a child, or a contract to adopt, when proved to have been made and afterwards lost or destroyed, may be established by evidence of the best character available, and even by oral testimony, and the terms of such a lost deed or contract may be proved by. secondary evidence like the terms of any other lost document.</p> <p>6. -: -: ———■: Character of Proof. Evidence to establish a lost contract to adopt a child must be clear, cogent and convincing; and if reliance is upon a lost or destroyed deed of adoption, all of its material parts niust be established by the testimony.</p> <p>7. -: -: -: -: Instruments of Uniform Contents. A deed of adoption is not a document or record of uniform contents, but may contain whatever conditions and considerations the parties may choose to insert, and in consequence there can be no satisfactory proof of its contents unless all its material parts and necessary elements are substantially proved.</p> <p>8. —■-: ■ — =-•: -: Insufficient Proof. Where no witness testified to having seen either a deed of adoption signed and acknowledged by the adopting parents, or the record of one, and there is no evidence that the husband of the adopting mother signed the deed, a judgment finding that the said mother adopted t-he child is not supported by sufficiently substantial evidence, although there is evidence that a deed of adoption was recorded and that the record was afterwards destroyed by fire.</p>

<p>1. FRAUD: Discovery: Limitations: Means of Discovery. Tlie presumption is that if a party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it. Where the party defrauded had the means at hand to readily discover the fraud, and such means of information would have been used by a person of ordinary care in the transaction of his own business, he will he held, as a matter of law, to have had due notice of everything which a proper use of such means' would have disclosed, and cannot escape the saving clause of the Statute of Limitations which requires an action for relief grounded on fraud to he brought within five years, “the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party of the facts constituting the frapd.”</p> <p>2.-: —--: -: Purchase of Bonds: Concealment: Original Misrepresentations. No force sufficient to prevent the running of the Statute of Limitations relating to the discovery of frauds can be allowed to misrepresentations concerning the assets and properties and possible profits of a corporation made by its promoters to a purchaser of its bonds, unless they were of a character designed and effective to operate after the fraud was perpetrated, so as to conceal the cause of action and prevent discovery; and the concealment .must be some affirmative act or representation, designed to prevent, and which does prevent, discovery of the cause of action.</p> <p>3.-:-:-: —.-: Concealment: Examination of Books. To prevent the bar of the Statute of Limitations on the ground that the facts constituting the fraud were not discovered within the five-year period, the circumstances of the discovery must be fully stated, and the delay must be shown to be consistent with requisite diligence. Where the purchaser of bonds was misled by false statements of the promoters of a corporation to the effect that it was the owner of a city franchise under which it was about to install 225,000 telephones and ultimately 750,000, that $17,000,000 of bonds were to be issued pursuant to contracts which would yield $5,000,000 for the company’s use, that sales of stock had been made or contracted to the amount of $41,303,000, and that there was this amount from this source as security for the bonds, allegations that said purchaser was not a stockholder and had no right to inspect the books of the company and that the books were so kept and manipulated that he could not have discovered the fraud even if he had had the right to inspect them, are not statements of facts which amount to concealment or of requisite diligence, for some of those things are not required to be shown by the company’s books.</p> <p>4.-: --■: -: -: City Franchise. Allegations that the promoters of a corporation, before plaintiff bought its bonds, had represented that it had a city franchise under which it was about to install 225,000 telephones and ultimately 750,000, whereas in fact it had bought an old burglar-alarm system franchise, reveal a source of information which no condition of the company’s books could conceal, for the existence or non-existence of the franchise, and whether or not construction oa, a large scale had teen begun before he bought its bonds, were things which almost casual inquiry would have discovered, and did not toll the Statute of Limitations.</p> <p>5. -: -•: -: Failure of Corporation: Report of Receiver. Mere failure of a corporation organized to acquire a city franchise and to construct and operate a large telephone system is not sufficient to put a purchaser of its bonds on notice that its representations that it had acquired such a franchise and that it had. immense assets to construct and operate the system were false; but when the company defaults in the payment of interest on the bonds and the mortgage securing them is foreclosed, a report of the referee showing a payment of only one and a half cents on the dollar of the secured indebtedness will reveal the fraud, if there was such, and if by an examination of that report he could ■ have uncovered immediately the worthless character of the franchise, the value of the corporation’s assets and the whole transaction, he must be held to have had knowledge of those things, and his failure to make the examination or to allege any reasonable excuse for not making it will not extend the five-year period for suing for fraudulent misrepresentation.</p>

— Hon. R. A. Brener, Judge. (1) The will.of Casper Stoeppelmann devised and bequeathed all his property, of every kind and description, to his widow, for her life, and after her death to his six children, to be divided among them as she might direct. This constituted a family settlement, and created and conferred on Johanna “a power,” in the nature of £ (1) Under a proper construction of the Avill in question, none of the authorities cited by appellant are applicable.

Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge. (1) The circuit court had no jurisdiction to render a judgment in partition in the case of Josephine Brokel and Prank Brokel v. Mary Brokel et al., because the petition showed on its face that Josephine Brokel had an estate for life in said property, and under the statute a life tenant cannot maintain partition against those having the estate in remainder.

Louis City Circuit Court. — Hon. Vital W. Garesche, Judge. (1) The allegations of the petition, showing partiality on the part of the arbitrator, in themselves war-' rant the reversal of the judgment in this cause. Hyeron-imus v. Allison, 52 Mo. 105, 106; Shawhan v. Bater, 167 Mo. App. 36; Bridgman v. Bridgman, 23 Mo. 272; Scholz v. Mills, 176 Mo. App. 377; Allen v. Hicham, 156 Mo. 58.

<p>1. CONFLICT OF OPINIONS: Suit Against Administrator for Money Entrusted to Decedent: Power of Probate Court. Plaintiff turned oyer her wages to ber grandmother, who was to provide her with food, clothing and shelter and account to her for the balance. Upon her grandmother’s death she sued her administrator in the probate court for said balance, upon a single account stated, in which she made claim for her earnings turned over to her grandmother not only during the years of her minority but for the two years after reaching her majority. The Court of Appeals held that the claim for money turned over by plaintiff during her minority was one growing out of the relation of guardian and ward and was maintainable in the probate court, but the turning over o£ lier wages earned after she reached her majority created a trust relation between her and her grandmother, which was a cause of action cognizable only in equity, of which the probate court had no jurisdiction, and the two causes being commingled in the one account, the one verdict for her for both and the one judgment of the circuit court, which took only such jurisdiction as the probate court had, were erroneous. Held, that the ruling of the Court of Appeals was in conflict with Hoffmann v. Hoffman’s Executor, 126 Mo. 486, and its record is therefore quashed upon certiorari.</p> <p>2. -: -: -: Matters of Equitable Cognizance. The Constitution gives probate courts jurisdiction “over all matters pertaining to probate business” and the statute provides that “the probate court shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator , or intestate;” and it was ruled in Hoffmann v. Hoffmann’s Executor, 126 Mo. 486, that these provisions are broad enough to include all moneys demanded from an administrator of whatever nature, whether legal or equitable, made in the probate court; and a holding in this case by the Court of Appeals that a demand for money against an administrator, adjudged to be equitable in its nature, could not be maintained in the probate court, was therefore erroneous.</p>

<p>1. ADMINISTRATION: Commissions: Refusal to Accept Distribution, A distributee cannot defeat the administrator’s commission on the amount of money ordered by the court before final settlement to be 'distributed to her, by an arbitrary refusal to accept the money or other personal property so ordered to be distributed. Where the probate court, before -final settlement, but at the third annual settlement and after all debts had been paid, made an order for partial distribution and allowed the administrator his statutory .commission on the fund so ordered to be distributed, and one distributee refused to accept her distributive share, whereupon, in pursuance to instructions of the court, her share of the stocks and monpy was deposited in a safety-deposit box for safe-keeping under the joint custody and control of the administrator and his surety, and remained in said box until after the administrator’s death, when it was accepted and turned over to the distributee, she “cannot have the allowance surcharged and the amount of commission upon her share allowed against his estate in favor of the administrator cle bonis non, on the theory that she never actually received her distributive share from the administrator during his lifetime.</p> <p>2..-: Order of Distribution: Final As to Commissions. An order - of partial distribution of assets, made before final settlement, carries with it the further incidental and statutory authority to allow to the adminigtrator distributing the fund the commissions thereon allowed by law, and, if unappealed from,’ becomes a final judgment, not only as to the order to make distribution, but also as to the commissions allowed the administrator; and a contrary ruling by the Court of Appeals was in conflict with Pound v. Cas-sity, 166 Mo. 1. c. 427.</p> <p>3. -: -: Acceptance of Commission: Estoppel. Where the probate court, in its order for a partial distribution of assets, fixed the amount of commissions to be allowed thereon to the administrator and he accepted it, his estate should not be charged with such commissions so received in advance of final settlement; and a contrary ruling by the • Court of Appeals contravened the spirit and legal principles of In re Bryan’s Estate, 190 S. W. 1. c. 585.</p>

<p>1. MARRIED WOMAN: Suit Against Husband. In view of tbe powers of courts of equity, and especially in view of our Married Woman’s Act (Sec. 8304, R. S. 1909), a wife may, as a femme sole, sue her husband in law or equity, as she may others, except that she cannot maintain an action for personal tort against him.</p> <p>2. JURISDICTION: Court of Equity: Rights of Person. Broad intimations in numerous cases that a complainant’s person is beyond the scope of the powers of a court of equity are not to be taken literally, for equity jurisdiction for the protection of personal rights does exist.</p> <p>3. -: -: -: Infants. The protection of infants, even from their parents, is one of the exceptions to the general rule that a complainant’s person is beyond the scope of the powers of a court of equity, and constitutes one of the established grounds for the exercise of equity jurisdiction in the protection of personal rights.</p> <p>4. -: Infants: Ward of Court: Public Charge. It is not necessary for the exercise of equity jurisdiction in the protection of infants that they be a public charge or that the proceeding so declare; they become wards of a court of equity when they are brought before it for any purpose, and any proceeding or application in equity relating directly to them is sufficient. Nor will statutory regulations as to their custody and care affect the court’s jurisdiction.</p> <p>5. -: -: Ownership of Property. The ownership of property by infants is not essential to the exercise of equity jurisdiction for the protection of their persons, and a failure to show the existence of property cannot be successfully urged to defeat jurisdiction.</p> <p>6. -:-: Consideration for Exercise: Welfare of Child: Member of Society. The reasons for the exercise by a court of equity of its jurisdiction for the protection of the persons of infants are (a) their welfare, life, health and moral and intellectual being, and (b) in addition their welfare as future members of society.</p> <p>7. -: -: Welfare of Child: Eight of Father. Equitable jurisdiction for the protection of an infant will be exercised, even though it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion of the other, when the welfare of the child will be promoted thereby. In such case the paramount right of the father to its custody, while conceded, as a general proposition, need not be considered, where by his moral turpitude he has forfeited his right to such custody: for the father’s right is not absolute, but if he is found unfit it must give way to the welfare of the child.</p> <p>8. -: Suit by Wife For Maintenance of Minor Children: Eight to Divorce: Contempt. A married woman may file a bill in equity against her husband for the maintenance and custody of their minor children, and upon a showing of his moral turpitude a decree in her favor may be enforced by imprisoning him for his refusal to surrender the children into her custody; and her right to a decree for maintenance and for the custody of the children is not impaired by the fact that, although entitled to a decree for separation, she waives her right thereto and prays only that he be required to make provision for herself and the children ■ and that she be awarded their custody.</p> <p>9. INFANTS: Custody: Procedure: Habeas Corpus: Suit for Maintenance. The wife may maintain a suit against her husband for maintenance and for the custody of their children, or habeas corpus for their custody may be maintained; in neither case is the court bound by the mere legal right of parents, but the welfare of the minor children is the matter of paramount consideration, and that, in either proceeding, is q subject of equitable jurisdiction,</p>

Mandamus. (1) Ordinarily an appeal is not open where the action of the conrt is purely negative. 2 Woerner’s Administration (2 Ed.), sec. 545.

— Hon. N. M. Pettincjill, Judge. (1) The intent of the testator controls in the disposition of real and personal property under the law and a life estate may be created’ by implication even though a power of disposition may be given by the testator and the remainder (if such) will not be void.

Mandamus. (1) As the State Constitution provides that all-property subject to taxation shall he taxed in proportion to its value; and as the Charter of Kansas City in its entire general-property taxation scheme and plan not only contemplates hut expressly provides for a completely made, revised and returned assessment as the sole basis upon which the City Council can fix the rate for levy and collect such general property taxes, it necessarily follows that no city official…

Certiorari. (1)' In holding that the deceased was not guilty of negligence as a matter of law barring recovery on the part of plaintiff, respondents, have failed to follow the rule announced in the latest controlling decisions of the Supreme Court, as follows; Iveele v. Ry. Co., 258 Mo. 62; Burge v. Railroad, 244 Mo. 76; Dyrcz v. Ry. Co., 238 Mo. 33;.

Certiorari. (1) A prima-facie case is made when a delivery of goods to a carrier is shown and a subsequent loss thereof. Steamboat Missouri v. Webb, 9 Mo. 192; Levering v. Trans. & Ins. Co., 42 Mo. 88; Reed v. Ry. Co., 60 Mo. 199; Davis v. Railroad, 89 Mo. 340. (2) When a party to a controversy submits evidence to sustain his burden of proof, the other party is entitled to have the case go to the jury, although nothing contradictory be offered.

Certiorari. (1) Certiorari is the appropriate remedy. State ex rel. v. Weithanpt, 254 Mo. 329. (2) The Circuit Court of Boone County, had no jurisdiction over the State Board of Equalization. State ex rol. v. Hall, 221 S. W. 712.

— lion. E. M. Bearing, Judge. (1) If the rates prescribed by Sec. 3241, R. S. 1909, for the transportation of railroad ties would not yield to defendant a substantial return upon that portion of the fair value of the property of defendant used in said service, which is properly assignable to that service, that provision of said statute is as to defendant void, irrespective of the return defendant could earn from all of its business, or from all of its intrastate business.

— Hon. O. A. Lucas, Judge. (1) The court erred in overruing’ tlie demurrer interposed at the close of plaintiff’s evidence, and renewed at the close of all the evidence, (a) The petition failed to state facts sufficient to constitute any cause of action. By omitting to charge obliviousness, no cause of action, was stated. Knapp v. Dunham, 195 S. W. 1062; Kamoos v. Ry. Co., 202 S. W. 434; Haines v. Ry. Co., 203 S. W. 630; Rubick v. Sandler, 219 Mo. App. 401.

<p>1. GRADING: Benefits: Legislative Question. Whether land is benefited by the grading of an adjacent street so as to be liable for the cost of such grading is a legislative and not a judicial question; ' and the legislative determination is conclusive except in exceptional cases.</p> <p>2. -: Kansas City Charter: Benefit District: Blocks. By Article 8 of Kansas City Charter (1908) the cost of grading a street or avenue is to be charged on the abutting land “from the line of the street, avenue or public highway back to the center line of the block or blocks” if such land is “laid off in lots or blocks” and if not, then “back one hundred and fifty feet” from the street or avenue. Held, that if charging the property “back to the center line of the block” results, on one side of the street, in a benefit district 28 feet wider than on the other side, that is not such a gross inequality as to render the tax bill void within the rule announced in Commerce Trust Co. v. Blakely, 274 Mo. 52.</p> <p>3. -: -: -: Dimensions of Blocks in Neighborhood. In determining whether land on a street is “laid off in lots or blocks” within the meaning of Kansas City Charter for the purpose of assessing the cost of grading such street, the similar dimensions of blocks in platted lands in the neighborhood may be considered: and the assessment is not to be condemned because the average block in many other parts of the city is materially narrower than the parcel in suit.</p> <p>4. -: -: -: Intention of Blatter. Whether the owner of land who plats it into a subdivision of parcels designated “blocks” intended them to be “city blocks” is not material, if in assessing them as “blocks” for the cost of grading an abutting street the resulting assessment is not grossly unequal, arbitrary and disproportionate.</p> <p>5. -: -: Benefit Districts. By Article 7 of the Kansas City Charter (1908) the council may provide by ordinance for grading public highways and in such ordinance must define a district within which property is to be assessed in proportion to benefits to pay damages to such property as may be damaged by such grading, such assessment to be made in a court proceeding. By Article 8 the cost of such grading is to be assessed, in proportion to the value of such assessed property, on property in a district defined by tlie charter itself. In this case the benefit district defined by the council under Article 7 embraced less of defendant’s land than the tax bill issued under Article 8 for part of the cost of grading, but this fact did not render such tax bill invalid.</p> <p>6. -: -: Apportionment: Value. Apportioning the cost of grading public highways on the abutting land in proportion to its value exclusive of improvements, as provided by Article 8 of Kansas City Charter, is valid, unless in a particular case it results in a -flagrant abuse of the taxing power of an arbitrary character, causing confiscation of the property.</p> <p>7. -: -: -: Disproportionate Assessments. The fact that in this case the application of the charter rule resulted in an assessment of defendant’s land about twice as great as that of a neighboring parcel of about the same size is not such conclusive proof of an abuse of the taxing power as of itself to show confiscation requiring an affirmance of the judgment in defendant’s favor regardless of other errors; but the existence of such 'an arbitrary exaction is a question of fact to be determined in the trial court on evidence clearly bringing it within the rule stated.</p> <p>8. —■-: -: Notice. The failure to give such a notice of the ■ proceedings to assess damages and benefits in a grading case as is required under Kansas City Charter, Article 7, in no way affects the validity of the assessment to pay for the cost of doing the work of grading as provided in Article 8. No notice is required prior to such latter assessment by either the State or Federal Constitution. .</p> <p>9. MOTIONS: Bills of Exceptions: Term: Final. Where the record proper fails to show the filing of a .term bill of exceptions on the trial court’s action on a motion to dismiss for want of prosecution and such motion and the ruling thereon do not appear in the final bill of exceptions, the Supreme Court has no power to affirm the judgment because of the ruling on such motion.</p>

<p>1. EJECTMENT: Defense: Estoppel in Pais: Jury Trial. In ejectment, where one defense was estoppel in pais, plaintiff, insisting upon a trial hy jury as a law case, cannot on appeal claim that the trial should have been hy the court as in equity.</p> <p>2. -: -: -: General Verdict. A general verdict for defendant in an ejectment suit, rendered on proper instructions, wliere one defense was estoppel in pais, will not be disturbed on appeal, where the court would decree title in defendant on the theory of such estoppel if it were hearing the case as in equity.</p> <p>3. DEED: Escrow: Withdrawal: Final Delivery. Where grantor and grantee in a deed to land have delivered such deed in escrow to a third party to be by him delivered to grantee upon the death of grantor, such grantor and grantee can thereafter, by mutual agreement, withdraw such deed from such third party’s possession and thereby prevent its final delivery to grantee, who cannot complain of its non-delivery to him nor claim title under it.</p> <p>i. -: -: -: Delivery: Intent. The delivery of a deed is a matter of intent, and whether or not it is absolute depends upon the facts.</p> <p>5. -: -: -: -: Question for Jury. Plaintiff, a single man, lived with his mother on the land in suit, then owned by her. She had drawn and executed a deed conveying the land to plaintiff and left it with a third party to be delivered to plaintiff after her death. Thereafter he and she went to the third party and obtained the deed and plaintiff put it in his pocket. He after-wards married and brought his wife to his mother’s home, and his mother could not get along with his wife. There was evidence of statements made by his mother in his presence that he was not to receive the deed unless he remained single and took care of her. Later his mother moved to the residence of defendant, another son, and when she did so the deed was found in her box, and she burned it. Thereafter she gave defendant a power of attorney to look after her business, and on demand by defendant plaintiff removed from the land in suit, and defendant took possession of it for his mother. She afterwards deeded it to defendant for $1000, and he made valuable improvements upon it and his title was not questioned until after his mother’s death: Held, that the question whether the first delivery of the deed was absolute so as to pass title and the question of the second delivery, having been submitted to the jury on proper instructions and found against plaintiff, the verdict must stand. Held, also, that the evidence is sufficient, to establish the defense of estoppel in pais, if the case had been submitted to the chancellor, and having been submitted to a jury upon plaintiff’s request he cannot complain.</p> <p>6. INSTRUCTIONS: Given: Refused. Where all the questions in the case are covered by proper instructions given to the jury, the refusal to give other requested instructions is not error, and the judgment being for the right party will be affirmed.</p>

— Hon. Almon Ing, Judge. (1) The court erred in not deducting from the amount of damages awarded respondents, the amount of taxes paid hy appellant. Secs. 11508,11509, R. S. 1909; Haarstiek v. Gabriel, 200 Mo. 237. (2) The court erred in not rendering judgment for appellant, (a) The judgment of the Butler County Circuit Court in the condemnation suit was res judicata of the title to the land in controversy herein.

<p>1. WILL: Construction: Intention. The intention of the testator is to he gathered from the whole instrument, and must be fully effectuated if not violative of some established rule of law.</p> <p>.2 -: -: Life Estate: Power of Sale. By his will, whereof he made his wife and another executors, testator, after providing for the payment of his debts, devised all his property, real, personal and mixed, to his wife for and during her natural life for her support and maintenance, including therein traveling expenses without limit and a reasonable amount that she might give to church or charities, and for such purposes gave her or the other executor or both power to sell and convey any or all of his real estate; and provided that at her death his estate should be sold by his executor as fast as prices might warrant, and the proceeds be divided among certain named persons. In the lifetime of the wife all the real estate was sold under the power, and part of the proceeds thereof, as well as all the income therefrom and all the personalty, were used in the support and maintenance of the wife. Held, under this will the exercise of the power of sale did not convert her life estate in the proceeds of sale of the property into an estate in fee, but whatever remained of the property at her death was governed by and should be distributed according to the' testator’s will.</p> <p>3.-: -: Life Tenant’s Eight to Income. Under the foregoing will the life tenant was entitled to the entire income from the estate during her life for her support and maintenance, and having received and consumed it, neither her administrator nor her heirs are entitled to be reimbursed therefor out of the corpus of the estate.</p> <p>4. -: —■-: -: Income Returned to Estate. Where the life tenant under the foregoing will had received part of the estate for her support, maintenance and traveling expenses and returned it to her co-executor who, with her knowledge and consent, returned it to the estate, it became part of the estate and passed to the legatees under the will at her death as against her administrator and heirs.</p> <p>5. -: Executor’s Commissions: Division Thereof. Where two persons are made executors of a will and both qualify, but one does nearly all the work of .oking after the estate and by reason thereof they agree that he shall, and he does, receive most of the commissions due the executors, such agreement is binding, and neither the administrator nor the heirs of the other executor after his death can recover any of such commissions.</p>

— Hon. Alonzo D. B'Urnes, Judge. (1) An examination of tlie pleadings, in this case will show that the only issue was, whether or not the respondent obtained the interest of appellant, in the lands described in the petition, in the partition suit of Mary E. Lay and William A. Martin v. Nora Scott and Nannie Morgan, or the unknown heirs of Nannie Morgan.

t Court. — Hon. J. G. Slate, Judge. (.1) • The execution was in due form. It was issued on the judgment of a court that had jurisdiction over the parties, plaintiff and defendant, and of-the subject-matter of the litigation. The sheriff had only to look at the command of the writ. Brown % Henderson, 1 Mo. 94; Sate v. Miller, 110 Mo. App. 542; State ex reí. y. O’Neil, 151 ;Mo. 67; Owl’s Nest v,.'Haines, 176 S. W. 513; Melcher v. Scruggs, 72 Mo. 411.

<p>1. ACTIVE TRUSTS: Life Tenant: Contingent Remaindermen: Termination. Where the legal title to property is vested by will in a trustee of an active trust for the benefit of a named person for life and after her death for the benefit of her children “living at the time of her death,” such trust will not be terminated by a court of equity at the suit of such life tenant and all her living children, even though the evidence shows she is past the age of child-bearing, inasmuch as such children are mere contingent re-maindermen and may never have a vested interest in the estate.</p> <p>2. -: -: -: -: Testator’s Expressed Intention. The testator had some valid reason for creating this active trust. His desires are clearly expressed in his will which created the trust, and such desires should be executed accordingly and equity will not interfere with the execution of them.</p>

<p>1. NEW TRIAL: Newly Discovered Evidence. To justify the granting of a new trial on the ground of newly discovered evidence, such evidence must he not only material but of such character and weight that, upon another trial, it would probably produce a different result.</p> <p>2. -: -: Discretion of Trial Court. The trial court has a large discretion in the matter of granting new trials on the ground of newly discovered evidence, the sound exercise of which is to be encouraged; but this discretion is subject to review by the appellate court on appeal.</p> <p>3. -: -: -: Evidence in This Case. In this case the newly discovered evidence upon the ground of which the trial court granted a new trial is examined and analyzed, and it being in the opinion of the Supreme Court highly improbable that it would have changed the result, the trial court’s action in- granting a new trial on that ground is disapproved.</p> <p>4. NEGLIGENCE: Pleading: Evidence: Conclusion of Expert. Where the petition in a suit for personal injuries alleged that plaintiff’s “right leg and knee and knee joint and the bones, muscles and ligaments thereof were greatly strained, bruised, torn, and injured and her said knee and joint thereof was made stiff and immobile and is permanently injured” and that as a result plaintiff suffered great bodily pain, etc., and defendant on cross-examination of plaintiff’s medical witnesses tried to show that the swelling, tenderness, immobility, of plaintiff’s knee, .at the time of the trial and for some time preceding it, was not caused by the street car collision complaind of, the court properly refused to strike out the answer of one of such witnesses that plaintiff was “suffering from a disease of the knee joint'superinduced by the injury.”</p> <p>5. -: Instructions: Assuming Facts. In a suit for damages for personal injuries charged to have been received by plaintiff by reason of a collision between one of defendant’s street cars, on which plaintiff was a passenger, with another, of defendant’s cars, an instruction which says that “if the jury find from the evidence that plaintiff was a passenger in one of said cars and by reason of. said collision plaintiff was injured, then,” etc., is not erroneous as assuming that plaintiff was injured.</p> <p>6. -: -: Stating Maximum Damages. In a suit for damages for personal injuries an instruction which tells the jury that if they find for plaintiff they should assess her damages at such sum or sums as they believe from the evidence will he a fair compensation to her “not to exceed the sum of $25,000” is not erroneous as containing a judicial hint that the court would approve a verdict for the amount stated.</p> <p>7. -: -: -: Mentioning Amount Claimed. Under our practice it is not ordinarily reversible error to give an instruction mentioning the amount of the damages claimed in the petition and warning the jury not to exceed it in their assessment.</p> <p>8. -: Excessive Damages: New Trial Sustained on Other Grounds. Where the evidence falls short of' showing, in a personal injury case, that plaintiff’s nervous system was permanently injured and also that the function of her knee was permanently impaired, a verdict for $12,000 is excessive, and a motion for new trial on that ground is properly sustained, although the trial court sustained it on the ground of newly discovered evidence.</p> <p>10. -: -: -: Remittitur: In Appellate Court. Where. the trial court grants a new trial to the defendant on the ground of newly discovered evidence, and the Supreme Court disapproves of this action but finds that defendant was entitled to a new trial on the ground of excessive damages, it cannot reverse the order granting a new trial and order a remittitur, so that plaintiff, if he elect to *do so, may have judgment for the remainder. It can only affirm the order granting the new trial.</p>

<p>1. DEATH STATUTE: Construction: Section 5425: Penalty. Taking the language of Section 5425, Revised Statutes 1909, in its plain, ordinary and usual sense, the entire sum to he assessed hy the jury in their discretion is a penalty which the Legislature clearly intended to make primárily a punishment for causing death by negligence, unskillfulness or criminal intent, whatever incidental or secondary purpose it might at the same time subserve. [Overruling Boyd v. Railroad, 249 Mo. 122; State ex rel. v. Ellison, 213 S. W. 459; Cooley v. Durham, 195 S. W. 1058, and Johnson v. Railroad, 270 Mo. 448, in so far as they announce a contrary rule.]</p> <p>2. -: -: -:-: Amendment. The settled construction of what is now Section 5425, Revised Statutes 1909, before its amendment in 1905, was that every dollar of the sum forfeited and paid thereunder was a penalty, and this construction had become a part of the statute itself. The precise sum, no more, no less, was recoverable in every case covered by the statute, and in no case could there be a recovery where the person whose death was wrongfully caused left no surviving husband, wife, or minor child, or, if an unmarried minor, no father or mother. The amendment of 1905, by adding the words “as a penalty” immediately after the words “shall forfeit and pay” and by authorizing a suit by an administrator, and by fixing a minimum and maximum amount which can be recovered, conclusively shows that the entire forfeiture is to be enforced in all cases as a punishment, and the amount thereof is not to be limited or controlled by the rules of law that govern the assessment of compensatory damages,</p> <p>3. -: -: -: Circumstances of Death: Pecuniary Loss. The fact that the statute authorizes the jury in fixing the amount of the recovery to consider the circumstances attending the negligent or wrongful act causing the death, does not conflict with the holding that the entire recovery is essentially and primarily penal.</p> <p>4. -: -: -: Strict or Liberal Construction. Inasmuch as this statute gives the penalty to the party aggrieved, it is both remedial and penal, and, under the rules applicable to such statutes, its provisions creating the liability should be strictly construed, while those relating to the remedy should be liberally construed.</p> <p>5. -: -: -: Instructions. Under the pleadings and evidence in this case the trial court properly instructed the jury that in determining the amount of plaintiff’s award they might take into consideration the ■ facts constituting the negligence, if any, on the part of defendant, causing the death of plaintiff’s intestate, including the aggravating circumstances, if any, attending such negligence as is shown by the evidence.</p> <p>6. -: --: Verdict: Maximum. The undisputed facts showing that the conduct of defendant’s motorman, in the management of the train on which plaintiff’s intestate was a passenger, was so reckless and grossly negligent as to show an utter disregard for the lives of the passengers entrusted to his care, a verdict for $10,000, the maximum penalty fixed by the statute, is approved.</p>

— I-Ion. Ralph 8. Latshaw, Judge. (1) The court erred in giving, to the jury, over the objections of defendant, the instruction on the subject of manslaughter in the fourth degree.

<p>CONTRACT: Right of Stranger to Invoke Interpretation. Where the suit is not a contest between the parties to a contract or their privies, whether the consideration mentioned therein was contractual or a mere recital, a party to the suit, who is a stranger to the contract, has no right to object to the introduction of parol testimony tending to vary its terms.</p>

— Hon. G. H. STtinker, Special Jndgé. (1) The court erred in overruling the defendant’s demurrer interposed at the close of the evidence on the part of the State, and again at. the close of the entire eviclence. (a) The evidence shows conclusively that the information was not filed until more than three years (excluding Hie time tlie defendant was out of the jurisdiction) had elapsed, after the date of the alleged offense on October 29, 1906.

— Hon. Peter II. Huclt, Judge. (1) A juror who on Ms voir dire says he has an opinion as to the g’uilt of the defendant based on reading a newspaper article containing a statement of all the evidence given on the preliminary trial of the defendant, is disqualified to sit as a juror in the case as a matter of law and as a matter of fact. Sec. 522!0, R. S. 1909; State v. Taylor, 334 Mo. 109; State v. Culler, 82 Mo. 623.

— Hon. Frank P. Divel-biss, Judge. (1) Under tlie testimony in this case, the defendant was guilty either of murder in the first degree or nothing. If defendant was saue at tlic time of tlio commission of the offense, he was guilty of murder in the first degree because every element of that crime was present. The court, without any testimony warranting it, gave an instruction on murder in the second degree and the defendant was convicted of murder in the second degree.