author: HIGGINS, Commissioner. PER CURIAM:

text:
    KNOX COLLEGE, an Illinois corporation, J. R. Clagett, Trustee under the Last Will and Testament of Alice Dean Swobe, Deceased, and Deane Green Anderson, Plaintiffs-Respondents, v. The JONES STORE CO., a Delaware Corporation, Defendant-Respondent, The First National Bank of Kansas City, as Successor Trustee under the Trust Deed of Frances M. Dean, dated February 25, 1925, et al., Defendants on Interpleader-Respondents, The First National Bank of Kansas City and Barret S. Heddens, Jr., Cotrustees of a Trust Created by Mason L. Dean, Defendants on Interpleader-Appellants, and Helen Dean Sullivan, John Joseph Fennelly, and Lana Hensley Fennelly, Guardian of John Joseph Fennelly, III, James Bush Fennelly and Elizabeth Fennelly, Minors, Defendants on Interpleader-Appellants.
    No. 51846.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.
    Motions for Rehearing or to Transfer to Court En Banc Denied Oct. 10, 1966.

      Joseph E. West, Galesburg, Ill., J. R. Clagett, Kansas City, for respondents, Stuart, Neagle & West, Galesburg, Ill., Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel.
    John B. Gage, William H. Leedy, Kenneth V. Butler, Kansas City, for appellants, Helen Dean Sullivan and others, Gage, Hodges, Park & Kreamer, Kansas City, of counsel.
    Menefee D. Blackwell, Daniel C. Weary, William W. LaRue, Kansas City, for appellants, First National Bank and others, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel.
   HIGGINS, Commissioner.

Action for declaratory judgment by Knox College, J. R. Clagett as Trustee under the Last Will and Testament of Alice Dean Swobe, deceased, and Deane Green Anderson, seeking construction of a voluntary deed in trust executed by Frances M. Dean as settlor. They seek to establish themselves as complete owners of the real estate and income held by the trust. Jones Store Company, lessee of the real estate, obtained joinder of additional parties necessary to determination of all interests including those to whom it should pay rentals. Such inter-pleader-defendants include Helen Dean Sullivan, granddaughter of the settlor, and Helen’s only child, John Joseph Fennelly, and John’s children, James Bush Fennelly and Elizabeth Fennelly, who are all of the living persons related by blood to the settlor, and they assert an interest in the title to the trust real estate and income. The First National Bank of Kansas City and Barret S. Heddens, Jr., cotrustees of a trust created by Mason L. Dean, deceased son of the settlor, are also interpleader-defendants asserting an interest in the trust property. The First National Bank of Kansas City, as Successor Trustee of the Frances M. Dean Trust, is also joined as an interpleader-defendant because it presently holds and manages the property pending determination of the interests of the other parties to the action. Title to real estate constituting the corpus of the trust is thus involved, and the value of the interests of the parties is not less than $100,-000, not including rental income accrued since the death of Alice Dean Swobe, life tenant of the trust.

The family tree of Frances M. Dean follows.

Frances M. Dean of Barnstable County, Massachusetts, as settlor, executed the trust deed in issue February 25, 1925. She was the former wife of Oliver H. Dean whose will was construed in First National Bank of Kansas City v. Sullivan, Mo., 394 S.W.2d 273. Her trust deed involved an undivided one-half interest in two tracts of real estate at approximately 12th and Main Streets, Kansas City, Jackson County, Missouri, presently leased to Jones Store Company. (The other undivided one-half interest was conveyed outright to Mason L. Dean, only son of Frances M. Dean, February 25, 1925.) After conveying the property to her trustee, the settlor reserved a life income interest to herself and then provided:

(a) “This conveyance is made in trust for the use and benefit of the daughter of the grantor, Alice Dean Green, her sons, Dean Green and Alvah S. Green, Jr., and such other children, if any, as may be bom to said Alice Dean Green before the termination of the trust and the distribution of said trust estate, as hereafter provided.”
(b) “Subject to the estate or interest herein reserved to the grantor, Frances M. Dean, the Trustee shall hold, rent, lease, manage and control the estate hereby conveyed, and/or any other property becoming a part of the trust estate by reinvestment or otherwise, until the death of said Alice Dean Green, and if such death shall occur prior to January 1, 1945, then until the last named date. Upon the death of said Alice Dean Green, or, if such death shall occur prior to January 1, 1945, then on January 1, 1945, the trust shall terminate and the fee simple title to all property, real and personal, then constituting the trust estate shall be at once vested in the children of Alice Dean Green, share and share alike, and/or the heirs, legatees or devisees of such children per stirpes and not per capita without the necessity of any conveyance or bill of sale by the Trustee (but the Trustee shall nevertheless execute upon request such conveyances * * * as may be necessary or desirable to confirm the title * *
“During the existence of said trust said Trustee shall collect the income from the trust estate and after paying all expenses * * *, he shall pay the net income to said Alice Dean Green so long as she shall live. Upon the death of said Alice Dean Green, if prior to January 1, 1945, the net income shall thereafter, until the termination of the trust be divided equally between the children of said Alice Dean Green, their and each of their heirs, legatees or devisees, per stirpes and not per capita.”

The Trustee was given “all the powers of ownership in all property at any time constituting the trust estate” subject to the trust, and the deed also contained spendthrift provisions applicable to payments to be made to Alice Dean Green and to the children of Alice Dean Green or their heirs, legatees and devisees. Such provisions directed that all payments should be made for the sole and separate use of the beneficiary or beneficiaries “free from the debts, control or interference of any husband of any of them” and “no pledge, assignment or transfer of any payment * * * by way of anticipation shall be of any validity.”

Mrs. Dean died testate September 17, 1930. Alice Dean Green and Mason L. Dean were her only children and they were devised the residue of their mother’s estate. Mason served as his mother’s trustee until his resignation at which time the First National Bank became the successor trustee. He died May 20, 1962, survived by his wife, Flora, and his only child, Helen Dean (Fennelly) Sullivan. Mason’s estate was devised to the First National Bank and Barret S. Heddens, Jr., as cotrustees.

Alice Dean Green was born September 15, 1876. She was first married to Alvah S. Green and subsequently to one Swobe. She and Alvah had two sons, Dean Green born November 17, 1908, and Alvah S. Green, Jr., born April 12, 1911. Alice died October 28, 1963, predeceased by both of her sons.. Dean Green died February 23, 1941, a resident of Jackson County, intestate, single and unmarried with no issue surviving him and leaving surviving him his father, Alvah S. Green, his mother, Alice Dean Green Swobe, and his brother, Alvah, Jr. Alvah S. Green, Jr., died intestate May 19, 1943, a resident of Jackson County, leaving no issue and leaving surviving him his widow, Deane Maitland Green, his father, Alvah S. Green, and his mother, Alice Dean Green Swobe. Alvah S. Green, estranged husband of Alice and father of Alice’s sons, died June 15, 1957. Allen A. Green, Alvah’s brother and legatee, died April 11, 1963, and Knox College, Galesburg, Illinois, is Allen’s residuary legatee.

Deane Maitland Green, widow of Alvah, Jr., and thus Alice’s daughter-in-law, was born September 14, 1910, and was legally adopted by Alice July 30, 1953. Deane later married Harold M. Anderson and, on December 8, 1962, they adopted Donald James Anderson.

Alice died October 28, 1963, and her second husband also predeceased her. She was survived by Deane (Maitland) Green Anderson, her adopted daughter; she was also survived by Helen Dean (Fennelly) Sullivan, John Joseph Fennelly, John Joseph Fennelly, III, James Bush Fennelly, and Elizabeth Fennelly, only natural blood descendants of Frances M. Dean, and they were the only natural blood relatives of Alvah S. Green, Jr., Dean Green, and Alice Dean (Green) Swobe, living at Alice’s death. Alice willed the residue of her estate in trust to J. R. Clagett, trustee, and she remembered her adopted daughter, Deane (Anderson), Harold Anderson, Thomas Peter Clagett, and Laura Ellen Cla-gett, Women’s City Club, Kansas City Association for the Blind, American Cancer Society, Heart Association, Society for Crippled Children, and Salvation Army. She also anticipated litigation concerning the trust deed of her mother, Frances M. Dean, and made provisions for attorney fees for J. R. Clagett.

The trial court found that Deane Mait-land Green Anderson, by her adoption, became a child of Alice Dean Green Swobe for all purposes within the meaning and intent of the Frances M. Dean trust deed, and that the remainder interest following the life interest in Alice, vested in Alice’s children as a class upon the execution of the trust deed February 25, 1925, thus recognizing interests in respondents to the exclusion of the interpleader-defendants except the beneficiaries under the will of Alice Dean (Green) Swobe.

Respondents say that fractional interests are not of consequence between them because “adjustment will be made among them in accordance with their agreement of settlement,” and they say further that they are entitled to the trust property to the exclusion of all appellants if any one of four theories is correct: “1. Title to the remainder * * * (as distinguished from the fee simple title) vested in the ‘children of Alice’ upon the execution of the deed in question. 2. Title to the remainder * * vested, upon the death of the ‘children of Alice’, in the ‘heirs, legatees or devisees of such children,’ there being no further contingency. 3. Deane Green Anderson, as the adopted child of Alice, was a member of the class, ‘children of Alice,’ and as such took either a vested fractional interest in the remainder (along with Alice’s two sons) or if the remainder was contingent to the termination of the trust, she took the entire remainder interest as the sole surviving child. 4. Deane Green Anderson, as the adopted child of Alice, was upon termination of the trust, the sole surviving heir of Alice’s two deceased sons * * * or as a descendant of Alice.”

Appellants Sullivan, et al., take the position that the remainder interests were not vested upon execution of the deed but upon termination of the precedent life estate; that Deane Green Anderson was excluded from the class of children in the trust deed because she was not a child “born to” the life tenant; that the heirs of Dean and Al-vah Green, Jr., are to be ascertained as of the date of the vesting of the contingent remainder upon the death of the life tenant rather than upon their deaths. Upon their stand, they claim that one half of the trust vested at the death of Alice in the then ascertained heirs of Alvah Green, Jr., whose only heir then was his widow, Deane Mait-land Green (Anderson), and that the other half vested at the death of Alice in the then ascertained heirs of Dean Green whose only heir then was Helen Sullivan, granddaughter and only surviving blood relative of Dean Green exclusive of her son, John Joseph Fennelly, and his children.

Appellants First National Bank and Bar-ret S. Heddens, Jr., cotrustees, agree with Sullivans that Deane Green Anderson was not within the limitation to the children of Alice Dean Green and that the remainder was contingent rather than vested. They claim, however, that there were no children or heirs, relatives, or devisees of the children of Alice surviving at her death and that the remainder thus reverted to Frances M. Dean and passed under her will one half to Mason (and then to them as his cotrustees) and one half to Alice.

The questions are whether a limitation in a trust deed to “children of” A (life tenant) “and/or the heirs, legatees or dev-isees of such children” creates a vested or a contingent remainder; and whether a child adopted by the life tenant is included within the limitation to children of the life tenant where the trust deed provided that it was made for the “use and benefit of” the life tenant, the two sons of the life tenant, and such other children as may be “born to” the life tenant before termination of the trust.

The parties remind that the rule to be observed in the construction of deeds as well as wills is to ascertain the intention of the grantor from the whole of the instrument in question, allowing them to be effective “in line with the intent of their faces as gathered from the everyday, good sense of their language.” Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035, 1043[9]. See also Garrett v. Wiltse, 252 Mo. 699, 161 S. W. 694, 696[2]; Garrett v. Damron, Mo., 110 S.W.2d 1112, 1114[2 — 5]; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 662 [2]; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187, 190 [4,5], 125 A.L.R. 531; Boxley v. Easter, Mo., 319 S.W.2d 628, 632[4], The respondents remind also that “The rule is said to be well settled that no remainder will be construed to be contingent which may consistently with the intention be deemed vested. It is declared that the remainder will be deemed to vest immediately, when the instrument admits of that construction; that the remainder vests immediately in the absence of words indicating a design to postpone the vesting; that the remainder will not be construed to be contingent when it may without manifest violence done to the language be supported as vested. It has even been said, in the case of a conveyance inter vivos, that the remainder will be held to be vested ‘unless the express words of the deed absolutely forbid such an interpretation.’ The courts will make every intendment in favor of early vesting,” 57 A.L.R.2d 108; and that adverbs of time usually denote when the enjoyment of an estate is to commence rather than when ownership is to vest. Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950[4], 951 [9]; Uphaus v. Uphaus, Mo., 315 S.W.2d 801, 804[4], 805 [5]; and see 33 Am.Jur. §§ 66-68, pp. 525— 530, for characteristics which distinguish vested and contingent remainders.

Nearly every deed case “presents some difference in language and circumstances, so that, to some extent, each must be considered apart from any other case in order to ascertain its meaning in the light of the facts as they were known and considered” by the grantor and auxiliary rules of construction should not be employed where the intention of the grantor is clearly expressed. Gardner v. Vanlandingham, supra, 69 S.W.2d l. c. 949-950[1, 2]; First National Bank of Kansas City v. Sullivan, supra, 394 S.W.2d l. c. 277[1]. The intention of Frances M. Dean as to when and what vested is contained in the language “Upon the death of Alice * * the fee simple title to all property * * * shall be at once vested,” and such language is so specific and unequivocal that it should not be disregarded in order to employ auxiliary rules of construction to find otherwise. First National Bank of Kansas City v. Sullivan, supra, l. c. 279[5].

Norman v. Horton, supra, 126 S.W.2d l. c. 188, involved a deed containing a similar provision: “The object and intention * * * is, by this deed to convey to the said Celest — B. Curd, only a life estate or interest .* * * with Remainder over to the heirs-of-her Body, * * * but should the said Celest — B. Curd die without Bodily Heirs * * * surviving her, then the title * * * at her death, shall revert to and vest absolutely in the Heirs-at-law of the said John Herriman * * *.” The court there recognized the problem that “[c]ases presenting issues with respect to vested or contingent remainders and the time for ascertaining the membership of a class of remaindermen involve grants variously worded and make manifest the necessity for determining the intent of the grantor from the particular passage or passages and facts involved” and made a distinction between the vesting of title to the remainder estate and the vesting of enjoyment and possession appropriate to this case, saying, “Our review of the authorities has impressed us that grant after grant refers to the ‘property’, and many cases go off on the proposition that the contingency refers to the time of enjoyment and possession rather than the time the estate therein vests. Such cases are not applicable here because the expressed subject matter of the clause, and consequently the contingency, is ‘the title to the * * * real estate’; and with the grantor thus expressly stating the ‘estate’ is involved in the contingency, we are pre-eluded from holding that he had reference to a contingency impliedly involving only the time when the remaindermen were to come into the enjoyment and possession of the property. The estate in remainder was a substitutional fee simple * * *.

“The instant grant employs the words ‘then’ ‘at her death.’ If they are to be given their natural effect when read with the other provisions of the grant, they refer (as in the Eckle case) to the ‘title’ vesting in the ‘heirs at law,’ ‘at her death.’ ” 126 S.W.2d l. c. 192 [10-12], By way of analogy, Mrs. Dean’s trust “estate” is involved in the contingency, and her language, “fee simple title” “shall be at once vested” clearly does not mean “enjoyment and possession,” and in both cases, it could not be determined until the life tenant’s death whether she was going to have other children “born to” her, an obvious contingency. The trust deed in Eckle v. Ryland, supra, 165 S.W. l. c. 1040, similarly provided: “On my death * * * the said trust herein provided for shall terminate, and the title to said real estate and property shall go to and vest in my two other children, * * * or to their heirs, should they or either of them be dead,” and this, too, was held to show an intention by the grantor to create an alternative contingent remainder. See also Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003, 1007-1008[6]. The issue was the same and the provision similar in Buxton v. Kroeger, 219 Mo. 224, 117 S.W. 1147, 1149. John Lauman conveyed land in trust to William Lauman giving his wife a life estate with power of appointment and reserving a life estate to himself with power of appointment if he survived her. After the death of both grantor and his wife, the property was to be held for the use of the children born to or to be born to grantor and wife. The dispositive clause provided, “[a]t the expiration of ten years from and after the date when the youngest of said children shall have attained lawful age, the said trustee * * * shall make a final settlement with each of said children * * *, and thereupon this trust shall cease and be determined, and the title to said real estate and every part and portion thereof, not disposed of as hereinbefore provided, shall * * * pass to and become fully vested in fee simple * * The remainder was held contingent and the reasoning of the court is applicable here. “It will be noted that the only method provided for the conveyance of this property by this provision of the deed, * * * was by direction of the life tenants or the survivor of them. This being true, the provision in the deed which fixed the date when the title should pass and vest, with the express provision that the title which the grantors sought to pass and vest by this clause, being the title to every portion of the real estate which had not been previously conveyed * * *, we see no escape from the conclusion that the title which passed and vested under the provisions of that clause, * * * is an absolute exclusion of the theory that any title in remainder was vested in any person at the date of the execution * * * of this deed. In other words, * * * this is an absolute exclusion that any title to an estate in remainder vested at the date of the execution of the deed, and clearly negatives any intention upon the part of the grantors * * * to create such vested remainder.

“ * * * With the plain and unambiguous terms of this clause, there is no necessity for surmises or speculations as to the time when the title passed to this real estate.” 117 S.W. l. c. 1155.

In addition, it may be said that the powers of appointment reserved to the life tenants in that case had an effect akin to the “powers of ownership” during the life tenancy, given to Mrs. Dean’s trustee in respect to vesting, and of such ownership the court said, “It must not be overlooked that in order to hold that the remainder was vested, * * * it must be found that the children did take a vested interest in the property from the execution * * * of the deed * * *. In our opinion, the strong terms employed in this deed to safeguard the absolute control, and in fact the entire ownership, of this property, indicates, at least in some degree, the intention of the grantors to exclude the possibility during their lives of a vested right in any one else.” 117 S.W. l. c. 1154, 1155. See also La Vaulx v. McDonald, Mo., 190 S.W. 604, Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, which cite Buxton v. Kroeger, supra, and in which the language on the time of vesting is honored in the same manner as any other intention expressed by grantors, settlors, and testators.

Riley v. Kirk, 213 Mo.App. 381, 253 S.W. 50, 51, contained a provision that “[ajfter the death of my wife, and after all said trust funds shall have been collected, the trustee shall divide the same * * * among my children or their heirs, giving to each such share as he or she would take as my heirs, and this trust shall cease and determine.” The court rejected a contention that a vested remainder was created and cited Owen v. Eaton, 56 Mo.App. 563, in which a devise to the widow for life and at her death to testator’s son or his heirs if he should not be alive showed an intention to create a substitutional contingent remainder. And in Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403, 405, a devise to “Winefred Langan for life * * * remainder in fee to the heirs of her body, or in default of such issue, at her death then remainder in fee to her father, mother, brothers and sisters equally, or their heirs taking per stirpes,” was held to create alternative contingent remainders. See also 128 A.L.R. 306, 340-346, for annotation of cases holding that a limitation to one or his heirs or to children or their heirs creates alternative contingent remainders, and alternative or substitutional remainders are necessarily contingent. Coley v. Lowen, 357 Mo. 762, 211 S.W.2d 18, 22 [4].

The alternative and substitutional nature of the remainder in Mrs. Dean’s trust deed arises from the provision that the “fee simple title” vests upon the death of her daughter “in the children of Alice Dean Green, share and share alike, and/or the heirs, legatees or devisees of such children per stirpes and not per capita.” In these circumstances, had Dean and Alvah, Jr., survived Alice, the property would have vested in them and their heirs, legatees or devisees, “heirs” in that situation being used to limit the remainder interest and to describe its quality. Dean and Alvah, Jr., did not survive Alice, however, and the alternative “or” of “and/or” vests the remainder in the heirs of Dean and Alvah, Jr., as purchasers from the grantor, Frances M. Dean, as an alternative substitutional remainder. The contingency is survival: If Dean and Alvah, Jr., survive their mother, they take the remainder and can will or devise it; if they do not survive, only their heirs take, not from them or the life tenant, but directly from the settlor. This result flows from the settlor’s use of “and/or” because it is the only way that meaning can be attributed to those words, and under the rules of construction no words of the grantor should be disregarded if they can be interpreted in the whole sense of the instrument. The word “or” would be superfluous if the intention of the grantor was to vest her remainder upon execution of her trust deed as found by the trial court; the word “and” alone would probably indicate vesting upon execution in Alice’s sons and their heirs. In holding that the devise in Eckle v. Ryland, supra, created an alternative contingent remainder, the court said: “Any other view assigns no meaning or office at all to the phrase, ‘or to their heirs, should they or either of them be dead.’ Did she not have the legal right to say when the estate should vest, and in whom? Did she not exercise that right? Did its exercise contravene any rule of law? In respondent’s view that phrase might as well be eliminated, and, when the grantor spoke those words, she might as well (nay, much better) have held her tongue. But the common sense of it lies another way. The just view is to assign an office to those words, and not make of them an empty phrase or a rhetorical flourish to perish by construction.” 165 S.W. l. c. 1042[9].

This meaning of “or” is consistent with other provisions of the trust deed because the words which follow are equally superfluous if the remainder vested upon execution of the deed. In that case it would certainly pass to the sons’ “heirs, legatees” upon their deaths without the grantor having had to say so. “And his heirs” are presumed to be words of limitation and not of purchase unless a contrary intent is expressed. Garrett v. Wiltse, supra, 161 S.W. l. c. 696 [6]. Likewise, “legatees or dev-isees” adds nothing to the quality of the remainder which is vested by statute without any such qualifying words. Section 442.460, V.A.M.S. Clearly, the use here in conjunction with “or” was descriptive of the class of purchasers from the grantor upon failure of Dean and Alvah, Jr., to survive Alice. In similar vein, “per stirpes and not per capita” following “heirs, legatees or devisees” indicates the substitutional intent in respect to primary takers, St. Louis Union Trust Co. v. Greenough, Mo., 282 S.W.2d 474, 478 [S], because legatees and devisees, as primary takers, do not take per stirpes but directly without representation.

In addition to provision for “all the powers of ownership” in the trustee during the life of her trust, the settlor also incorporated spendthrift provisions into her trust deed which provisions are inimical to the characteristics of vested remainders, particularly the freedom of alienability. Such circumstances have been found to support an intent to create a contingent rather than a vested remainder. First National Bank of Kansas City v. Sullivan, supra, 394 S.W.2d l. c. 279-280[6].

Thus, when considered in its entirety, the trust deed discloses the settlor’s intention to create alternative, substitutional remainders in fee upon the death of her daughter, Alice, to whom she gave a life estate; that the remainders were to go to the life tenant’s sons or, if they were not living at the time she provided for the trust to terminate and fee simple title in the remainders to vest, then to go to their heirs.

Respondents insist that the settlor did not create a contingent remainder, and they suggest several situations in which they say a vested remainder would have been created. Typical of the propositions suggested by respondents is the example at 57 A.L.R.2d 113: “In most jurisdictions a disposition simpliciter, by deed or will, to A for life, remainder to his or her children (whether or not adverbs of time such as ‘then,’ ‘upon her decease,’ etc., are used) vests the remainder immediately upon the instrument going into operation in any child or children of the life tenant in esse, as individuals. (As already noted, the remainder ordinarily opens up to allow for the equal interests of children later born; * * *.)” See also Doerner v. Doerner, 161 Mo. 407, 61 S.W. 801, 802, where the rule was applied to devises “to my grandchild or grandchildren, the child or children of my said daughter * * * to have and to hold to my said grandchild or grandchildren, her, his, or their heirs and assigns, forever.” Respondents rely on Garrett v. Wiltse, supra, Uphaus v. Uphaus, supra, Garrett v. Damron, supra, Grannemann v. Grannemann, Mo., 210 S.W.2d 105, and Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424. The deed in Garrett v. Wiltse was between the grantor and “Laura Alice Garrett and heirs,” of the second part. The grant was to “parties of the second part, and to their heirs and assigns forever * * to have and to hold * * * unto her the said party of the second part, and to her heirs and assigns forever,” with warranty “unto her the said party of the second part, her heirs and assigns * * 161 S.W. l. c. 695. The court simply found that grantor intended to convey a fee simple estate to Mrs. Garrett, the grantee, and not to her as a tenant in common with her children. In Uphaus v. Uphaus, a testator gave his son, Jesse, a life estate and provided: “It is my further desire and will that, at the death of my said son, * * * there shall be paid to his wife, Clara, * * if she shall survive him, the sum of * * * ($3,000.00) out of said real estate so devised to my said son, Jesse, and the remainder in said real estate, after the expiration of the life estate of my said son, Jesse, and after the payment of the said sum * * * to said Clara H. Uphaus, shall go to and descend equally to the rest of my children or their descendants, share and share alike, per stirpes.” The court held that “after the expiration of the life estate” and “after the payment of the said sum” referred only to the time when remaindermen were to have possession “in the absence of some clearly expressed contrary intent.” 315 S.W.2d l. c. 805 [5,6], “The only contingency involved, in so far as the remaindermen were concerned, was the value of their remainders, i. e., whether their remainders were each worth $1,000 less, depending upon whether Clara survived Jesse. And certainly that contingency had nothing to do with when the remainder estates vested.” 315 S.W.2d l. c. 805 [8], The Uphaus will provision is not comparable to the grant made by Mrs. Dean. In Garrett v. Damron, 110 S.W.2d l. c. 1113, the court quoted the will as saying: “In lieu of dower, I give, devise and bequeath to my wife, Malinda E. Damron, the free and unrestricted use, possession and benefit of the home farm so long as she may live, and it is my will and desire that at the death of my wife * * * (the home farm) revert to my children or to the lawful heirs of each, namely * * The court held that the will gave testator’s children a remainder which vested at his death subject to a life estate in his widow. The result was reached by application of the rule that the law favors vested estates and will resolve doubts as to whether testator intended a contingent or vested remainder in favor of a vested remainder. The case was distinguished as being unlike Eckle v. Ryland, supra, which has been found to support appellants here. Grannemann v. Grannemann found that “I give and bequeath all of the balance of my estate, both personal and real, to my beloved wife Lydia Grannemann, and after her death and the payment of the above legacies, the balance of the estate * * * shall be divided equally between Oscar Grannemann and Guy Grannemann or their heirs,” contained no showing of an intention to postpone vesting and ruled that “in the absence of anything in the will showing, either expressly or by implication, that testator intends that the title to his bounty is to be postponed, it is conclusively presumed that his gift is to vest at his death.” 210 S.W.2d l. c. 107. The court distinguished Owen v. Eaton, supra, previously found to support appellants here. In Sanders v. Jones, supra, 147 S.W.2d l. c. 425, the will provided: “Upon the death or remarriage of my said wife, * * * said residue and remainder of my estate * * * I give, devise and bequeath to my said son * * * or his heirs at law, in fee simple absolute.” The case was determined to be one for application of the rule favoring vesting and that any postponement was of enjoyment only.

None of the preceding five cases contained provisions of the nature of those employed by Frances M. Dean in her trust deed and the purposes to be accomplished were notably different. None of those cases involved a trust and, resultingly, there were no spendthrift provisions or powers of ownership which negatived freedom of alienation characteristic of vested ownership; none of them employed words so clear and unequivocal in meaning as “upon the death of said Alice Dean Green * * * the fee simple title * * * shall be at once vested in the children of Alice”; none of them employed “and/or” in respect to the remainders created.

Respondents “seize upon the frequently criticized phrase ‘and/or’, State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179,” Coplen v. Zimmerman, Mo., 271 S.W.2d 513, 514[1]; see also City of Washington v. Washington Oil Co., 346 Mo. 1183, 145 S.W.2d 366; Russell v. Empire Storage & Ice Co., 332 Mo. 707, 59 S.W.2d 1061; Longacre v. Knowles, Mo., 333 S.W.2d 67; and urge that it clouds the intention of the grantor and emphasizes application of the presumption of vesting. None of those cases involved interpretation of a deed or will where the court must give meaning to all words used by the grantor or testator if possible, and in Longacre v. Knowles, supra, and Copien v. Zimmerman, supra, the court did give meaning to the phrase in the context used. It is not the purpose here to make a defense for use of “and/or”; nevertheless, the grantor has used the phrase and, despite criticism of its use, “the commonly accepted meaning of the phrase ‘and/or’ is ‘Either and or or.’ Webster’s New International Dictionary.” Coplen v. Zimmerman, supra, 1. c. 515[1]. Resolution of the problem of interpreting its usage is well stated in Schaffer v. City Bank Farmers’ Trust Co., 239 App.Div. 531, 267 N.Y.S. 551, 553, where the phrase was used in a power of attorney in connection with a bank account: “The interpretation to be afforded it must depend in each instance upon the circumstances under which it is used and it must be so construed as to express the true intention of the parties to the transaction. * * * Both the conjunctive ‘and’ and the disjunctive ‘or’ are used, and effect should be given to each of them.” As previously demonstrated, the usage by the settlor in her dispositive clause when read in the light of the entire trust deed is in the sense of “and” in respect to the quantum of estate in Alice’s children if they survive her, and in the sense of “or” in respect to the purchasers who take upon Alice’s death if she is not survived by her children.

Having determined that the settlor created alternative substitutional remainders to provide for the situation which would arise if Alice’s sons predeceased Alice, the next problem is to determine Mrs. Dean’s intention as to when the heirs of her grandsons would be ascertained. The Bank contends that they should be ascertained as of their deaths; Sullivans contend that since remainders vested in Alvah, Jr., and Dean only if they survived Alice, and if they did not survive, they took nothing and the substituted remaindermen then took in their own right directly from the grantor. Respondents, on this question, concede “that if the remainder interests were contingent until the death of Alice, then the persons who qualify to take the remainder interests are to be determined as of that time.”

When Frances M. Dean executed her trust deed she had a daughter, Alice, who had two sons, Dean and Alvah, Jr. Alice was estranged from her husband, and the trust property was placed with the trustee in a manner precluding an interest in Alvah and any control in Alice which shows Mrs. Dean’s intention that the trust property should not pass through Alice except to Dean, Alvah, Jr., “and such other children, if any, as may be born to said Alice.” Such provisions are also wholly inconsistent with any power of alienation residing in anyone until after termination of the trust and the then vesting of the fee simple title. The contingent remainder here was for the class of children “born to” Alice, and the general proposition on ascertainment of the membership of the class is stated in 30 A.L.R.2d 393, 396:

“Determination of the question whether the membership of a class described as indicated is to be ascertained as of the earlier or later period mentioned is usually but not always made consistently with the determination reached as to the vested or contingent character of the gift. In other words, if it is found that the gift is vested, the class will be ascertained as of the death of the testator, but if it is found that the gift is contingent, the class will be ascertained as of some later period (usually the termination of a precedent estate).” Tevis v. Tevis, supra, held that to take an alternative remainder following a contingent remainder, one had to survive the precedent estate. The testator provided that if John Tevis died leaving heirs of his body, the property went to them and if he did not leave such heirs the property vested in the testator’s heirs at law. One of the testator’s daughters predeceased him and a will made by her to her husband was held to pass no interest in the contingent remainder because it was not devisable prior to John’s death, and those who acquired the remainder were ascertained upon the event of John’s death. 167 S.W. 1. c. 1007, 1008[6]. See also Norman v. Horton, supra, 126 S.W.2d 1. c. 192 [10, 11], and Eckle v. Ryland, supra, 165 S.W. 1. c. 1043, and note that on this question also the grantor’s intention controls. In New York Life Ins. & Trust Co. v. Winthrop, 237 N.Y. 93, 142 N.E. 431, Jabez A. Bostwick devised a part of his estate to New York Life, trustee, to pay his wife an income for life, and “upon her death to pay the same” to a daughter, Nellie Bostwick Morrell, for life, and upon the death of ‘said wife and daughter to convey, assign and deliver the said estate * * * to the lawful issue of Mrs. Nellie Bostwick Mor-rell share and share alike, or in default of such issue to the next of kin of Mrs. Morrell.’ ” Nellie died without issue in 1906; her mother died in 1920. The problem and resolution are in point: “The trustee was then under a duty to distribute the estate so held in trust among the next of kin of Mrs. Morrell. We are to determine the point of time which the testator had in mind as the one for the ascertainment of the class. On the one hand, it is asserted that the next of kin in being at the death of Mrs. Morrell acquired a title that was indefeasible though they died before the end of the trust and so before the date of distribution. * * * On the other hand, it is asserted that the class was to be ascertained when there was a duty to convey and deliver, and that survivorship at that time was one of the conditions of the gift.
“ * * * the point of time which fixes the ascertainment of the class of issue and the vesting of their interests, is the one to which we must look in defining the substituted class described as next of kin. * * *

“Survivorship being a condition, we hold that it is survivorship at the time of distribution. * * * The will, when read in its totality, is instinct with the desire to hold the ultimate gifts in abeyance until the termination of the trust, and thereupon to adapt and proportion them to the conditions then existing.” 142 N.E. 431-433 [1]. The rule of that case is based upon Hutchinson v. National Refuges for Homeless & Destitute Children, A.C. 794, 805: “Where a testator gives property in trust for the benefit of the persons who at a time subsequent to his own death shall by virtue of the statute of distributions be his next of kin the class is an artificial class to be ascertained on the hypothesis that the testator had lived up to and died at the subsequent period of time.” The devise in Coley v. Lowen, supra, 211 S.W.2d l. c. 18-19, was “to my daughter, Addie Stone, for and during the period of her natural life only * * * and the remainder therein I give and bequeath to the children of said Addie, if she shall marry and leave issue * * * and in the event of her leaving at her death descendants of a deceased child, such descendants shall be entitled to the same share the parent, if living, would have been entitled to. But if the said Addie shall die unmarried, or married and leaving no children or their descendants, then I give and bequeath the remainder * * * to Napoleon B. Crisp * * * and to his heirs forever.” Addie married and had Ellen, Mabel, and James. She died predeceased by Ellen and Mabel and survived by James. Ellen was survived by one child and Mabel by four children, who were the respondents. Appellant was a grantee of respondents’ ancestors in deeds made prior to Addie’s death and he contended he had title because the remainder was vested in Addie’s children. The court held that the interests of the life tenant’s children were contingent upon their surviving Addie due to their alternative nature. Of the time of vesting and ascertainment of takers the court said: “At the time the will was executed testator had but one grandchild in being, Napoleon B. Crisp, the son of the daughter Anna. If Addie never married, or having married had no issue living when she died, testator wanted his grandson Napoleon to have the property. Obviously he could not name in his will, as individuals, the unborn children of Addie. He could only think of and provide for them as a class, which could be described as ‘children’ of Addie, which class upon the birth of one or more of the class might yet fail or increase or decrease in number. So we see he devised a particular (life) estate to Addie; and the language * * * manifests the termination of the particular estate, at the death of Addie, as the intended time of ascertainment of those children of Addie who would become vested with the remainder in ‘equal portions forever.’ And it is our interpretation that testator intended, in the event children were born to Addie, one or more of which predeceased her, the share or shares which the deceased child or children, if living, would have ‘been entitled to’ should become absolutely vested, at Addie’s death, in those descendants (of the deceased child or children) who survived Addie.” 211 S.W.2d 22-23[4], In this case the remainder to Dean and Alvah, Jr., (and such other children born to Alice) is contingent upon their surviving the life tenant. The ascertainment of the second class of takers is postponed until termination of the trust, and that class of survivors takes the then vested remainder. One who does not survive the life tenant takes nothing. Thus, only Deane Green Anderson as the widow of Alvah, Jr., and Helen Dean Sullivan as the cousin of Dean take, they being the sole surviving heirs of Alvah, Jr., and Dean.

Another factor which supports the preceding as the intent of the grantor is the provision for Alice to enjoy the net income from the trust during her life. This has been held to indicate that it is unlikely that the grantor intended to include the life tenant, whether sole heir or one of several heirs, in a class remainder following the life estate, and thus to indicate that the taking heirs were to be ascertained as of a time when the life tenant would not be an heir, V American Law of Property, Section 22.60, page 445, and cases there cited; and to treat the life tenant here as though she had any interest in the remainder to pass to anyone would be wholly inconsistent with the settlor’s scheme which gave her expressly the life estate only. First National Bank of Kansas City v. Sullivan, supra, 394 S.W.2d l. c. 279[5], See also Irvine v. Ross, 339 Mo 692, 98 S.W.2d 763, 767, where intent to exclude testator’s daughter, the life tenant, from taking the remainder limited to his heirs was found from such an inconsistency with testator’s overall scheme and a plan for blood descent; and Commerce Trust Co. v. Weed, Mo., 318 S.W.2d 289, 294-295, where such exclusionary intent was found from a provision to limit takers to his bloodstream, the lack of provision to vest the remainder in the life tenant, and provision for substitution in the event the first named remaindermen predeceased the termination of the trust.

Still another factor supports this interpretation of the settlor’s intention on ascertainment, i. e., the provision that at the time of vesting, the remainder would, in the event of prior death of the grandsons, vest in their “heirs, etc., per stirpes and not per capita.” In St. Louis Union Trust Co. v. Greenough, supra, 282 S.W. l. c. 476, testator’s daughter was given a life estate with remainder to her children and husband, but “If there be neither child nor descendants nor husband surviving, then * * * to the brothers and sisters of such daughter, per stirpes and not per capita.” “[P]er stirpes and not per capita” was found, in connection with that will, to show testator’s intention “to provide for substituted legatees in the event that at the time of distribution, any of the primary legatees -* * * were deceased,” 282 S.W.2d 478[5], and that “by providing for substituted takers for deceased brothers and sisters, he excluded deceased brothers and sisters as primary legatees and thereby included as primary legatees only * * * brothers and sisters who survived her.” 282 S.W.2d 479 [7]. The application here in the event Dean and Alvah, Jr., had left wills naming their legatees and devisees would be to vest the remainder in only those who were alive at the termination because of the implications of futurity and substitution in the use of per stirpes in respect to primary takers. And this is consistent with the expressed desire that Alvah, Sr., estranged husband of Alice, and Alice herself, have no control over the trust; yet the decree below would in recognizing Knox College as the owner of an interest also recognize a power in Alvah, Sr., to pass an interest in the trust property by will to his brother Allen and through the brother to Knox College. Thus, the use of per stirpes here is consistent with the testator’s intention to provide for substitutional remainders which would benefit the children of the settlor and their descendants who might be alive at the time the trust terminated; and it is consistent with the purpose for which the trust was created and so clearly expressed by the settlor.

The Bank would apply the rule in 3 Restatement, Property, Section 308, page 1706: “When a limitation is in favor of the ‘heirs,’ ‘heirs of the body,’ ‘next of kin’ or 'relatives’ of a designated person, or in favor of other groups described by words of similar import, and the persons who come within the term employed to describe the conveyees are to be determined by statute governing the interstate succession of property,' then the statute is applied as of the death of the designated ancestor, unless an intent of the conveyor to have the statute applied as of some other date is found from additional language or circumstances.” See also 65 A.L.R.2d 1408. The emphasized exception is, of course, that which distinguishes the abstract restatement from “additional language or circumstances” in Mrs. Dean’s trust deed which showed intention to postpone ascertainment, and the same is true of the cases cited by the Bank to support the rule. Green v. Irvin, 309 Mo. 302, 274 S.W. 684, did not consider the problem of postponement of ascertainment; and Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706, St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, and Thomas v. Higginbotham, Mo., 318 S.W.2d 234, did not involve ascertainment of heirs at any time other than the time of vesting, nor did they involve the other items previously indicated to bear on the grantor’s intention to postpone ascertainment such as alternative class remainders to take effect only upon termination of the trust, exclusion of a life income beneficiary where she would otherwise be a member of one of the classes to take the remainder, and spendthrift and noninterference provisions to prevent alienation of, and nonblood sharing in, the remainders.

The Bank suggests also that since the limitation required survival of heirs of the children of Alice, the failure of such survival caused the remainder to revert to Frances M. Dean and to pass under her will. The Bank would support its contention with Hartnett v. Langan, supra, but the case is supportive of an ascertainment at the death of the life tenant in circumstances akin to this case. The devise there, essentially the same as Mrs. Dean’s, was “to my niece, Winefred Langan for life * *, remainder in fee to the heirs of her body, or in default of such issue, at her death then remainder in fee to her father, mother, brothers and sisters equally, or their heirs taking per stirpes.” 222 S.W. l. c. 410. The niece died without issue and was predeceased by her sister Catherine, and Catherine’s daughter. Catherine’s husband claimed an interest as heir of his daughter. The court determined that the remainder was contingent and that it vested only in those who survived the niece, “The remainder being thus doubly contingent and taking effect or vesting only upon the death of Mrs. McCabe in such of the remaindermen or their heirs as were then living, the heirs who were to take the deceased remainder-men’s portion * * * were the persons who were, or would have been, the heirs of such deceased remaindermen at the time ' the remainder vested, or at the date of Mrs. McCabe’s death. A deceased heir of such remaindermen, of course, could take nothing, because not in existence when the estate vested. As no one is heir to the living, so it may be said that the dead are heirs to no one. At the date of Mrs. McCabe’s death, Mrs. Connolly and her daughter both being dead, the daughter could not, and did not, take as her mother’s heir * * *, and she could transmit nothing by inheritance to her father and he was not the heir of his wife. Who, then, were or would have been the heirs of Mrs. Connolly at the time of her (Mrs. McCabe’s) death, * * *?” 222 S.W. l. c. 411 [14, IS], The emphasized portions are clear indications that the heirs were not ascertained as of any time prior to vesting of the remainder interests. The reasoning of the case has additional application here. By substituting “children of Alice * * * or their heirs * * * per stirpes” for the niece’s “father, mother, brothers and sisters * * * or their heirs * * * per stirpes,” it may be said that the predeceased children of Alice, Dean and Alvah, Jr., and their heirs who survived them but who also predeceased Alice, took and transmitted nothing, thereby excluding any interest in the remainder in Alice, Alvah Green, Allen Green and Knox College for the same reason that the niece’s father, mother, brother or sister took and transmitted nothing in Hart-nett v. Langan, supra; i. e., because all predeceased the date when Mrs. Dean intended for Dean’s and Alvah’s heirs to be ascertained.

Mrs. Dean’s trust deed expresses her purpose and intention to benefit her family, her daughter and children born to her, prior to any disposition of her property; she created life interests for herself and her daughter; she named her son and his successor trustee and gave them powers of ownership; she excluded husbands from control over the. trust; she provided for vesting in a manner calculated to avoid an interest in estranged husbands; and her provisions are all consistent with protection of bloodline inheritance. In these circumstances, Knox College could not become a remainderman without disregard of the settlor’s contrary intentions not to create a vested remainder and not to pass any interest to her daughter’s estranged husband and through his and his brother’s estates to Knox College. The only conclusion which is consistent with the mentioned particulars and the over-all scheme of Mrs. Dean’s trust deed is that she created class remainders to vest only upon termination of her trust in persons who met her description at that time. Alvah, Jr.’s only heir then was his widow, Deane Green Anderson; Dean Green’s only heir then was his cousin, Helen Dean Sullivan. Each take an undivided one-half interest.

The remaining question is whether Deane Green Anderson, adopted daughter of Alice, is within the class of children of Alice Dean Green. The cases concerning rights of adopted persons recognize that “ * * * it is not a question of the right of an adopted child to inherit, but simply a question of the testator’s intention with respect to those who are to share in his estate,” and “ * * * whether an adopted child is embraced within the meaning of a described class of beneficiaries in a will is governed by the law in force at the time the will or other instrument was executed.” First National Bank of Kansas City v. Sullivan, supra, 394 S.W.2d l. c. 281 [6, 7]. See also Raterman v. Raterman, Mo., 405 S.W.2d 891; First National Bank of Kansas City v. Waldron, Mo., 406 S.W.2d 56; Leeper v. Leeper, supra, 147 S.W.2d l. c. 662 [1-4]; Commerce Trust Co. v. Weed, supra, 318 S.W.2d l. c. 298; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672, 674[1].

Mrs. Dean’s intention to exclude adopted children from the class of children of her daugther, Alice, is shown by the clear unambiguous language in paragraph (a) of her trust deed where she detailed the purpose and scheme of her entire trust. She named specifically Alice’s two natural-born sons, Dean and Alvah, Jr., and then provided that the class which they then comprised could be enlarged but to include only “such other children, if any, as may be born to Alice.” There is simply no mistaking the intention of the settlor at that point and references to children in other parts of the deed must be viewed in the light of, and consistent with, such clearly stated and controlling purpose. Certainly such statement cannot be ignored in order to accomplish a result which would frustrate the motivating purpose of the trust.

“Born” is universally familiar and susceptible to simply definition, e. g., Webster’s New Twentieth Century Dictionary, Second Edition: “Born, a. [pp. of bear (to give birth): now used only in passive constructions not followed by by] 1. Brought into life or existence.” Other jurisdictions have had to give definition to the word. “ ‘Born’ as ordinarily understood, and in fact, means ‘brought forth,’ and a child is completely born when delivered, or expelled from and becomes external of the mother.” Goff v. Anderson, 91 Ky. 303, 15 S.W. 866. Wachovia Bank & Trust Co. v. Green, 238 N.C. 339, 78 S.E.2d 174, 178, held that a provision for named children of his niece “together with any child or children that may thereafter be born to either his niece * * or his nephew” showed clear intent of the testator to limit beneficiaries to those of his blood. In Third Nat. Bank & Tr. Co. v. Davidson, 157 Ohio St. 355, 105 N.E.2d 573, 577[2], a bequest was for “my then living grandchildren, whether born prior or subsequent to my decease,” and the court held that adopted children of testatrix’s children would not be born as her grandchildren at any time. In Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793, 797[2], there was a provision that “if * * * any child of my son * * * ⅛ born after my death, the trustee shall immediately create * * * a new * * * trust.” Under the Texas statute, which provides, as does Section 453.090, V.A.M.S., that after adoption a child shall be the child of its adopting parents as fully as though naturally born to them in lawful wedlock, the court held that the ultimate inquiry was the intention of the testator, and “[t]he use of the words ‘born after my death’ renders it most improbable that he was referring to children born to strangers. The language is conclusive that he meant to include * * * only those children who were actually ‘born’ of his son.” 337 S.W.2d l. c. 797. In Wachovia Bank and Trust Co. v. Andrews, 264 N.C. 531, 142 S.E.2d 182, 187[9], the provision was for nieces and nephews “who hereafter may be born within twenty-one (21) years after [my] death,” and the court excluded adopted claimants because “[b]irth is, by the express provisions [of the will] made a condition precedent to participate in the trust. * * * Birth is not synonymous with adoption.” Blaker v. Blaker, 131 Kan. 833, 293 P. 517, held that a testator could exclude adopted as well as natural children. These authorities are consistent with the general proposition in 57 Am.Jur., Wills, Section 1174 (1966 Supp.): “ * * * where the members of the class were referred to as being ‘born’ * * * of a designated person, it has generally been held that an adopted child will not be included within the class gift.”

Respondents say that under the development of the adoption statutes in 1917, 1943, and as now provided in Section 453.-090, V.A.M.S., adopted children are within a class limited to children “born to” a primary beneficiary because the law now provides that an adopted child “ * * * shall be capable of inheriting from, and as the child of, said * * * parents * * as fully as though born to * * * them in lawful wedlock.” The statute, however, does not prevent a person from giving his property to whom he pleases, and by expression to such effect he can provide, as Mrs. Dean has done here, that property be shared only by those children “born to” the settlor’s principal beneficiary which, in this case, excludes Deane Green Anderson except as the widow of the natural-born son, Alvah Green, Jr. See First National Bank of Kansas City v. Waldron, supra, where “[t]he clear meaning of the wording ‘their children, born in lawful wedlock’ excluded adopted children. * * * We think this clause also indicates a fixed purpose to limit beneficiaries of her estate to blood relatives.” And since Deane is not a child “born to” Alice, neither is she a sister of the sons who were born to Alice.

For the reasons indicated, the judgment is reversed except as to the distribution of $2,229.60 accrued rentals due the estate of Alice Dean (Green) Swobe, and the cause remanded with directions to enter judgment vesting fee title to the real estate in issue one half to Deane Green Anderson and one half to Helen Dean Sullivan, and to cause the trustee to distribute all remaining cash, assign the Jones Store lease, and convey the real estate belonging to the Frances M. Dean trust one half to Deane Green Anderson and one half to Helen Dean Sullivan.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM:

license: Public Domain

text:
    Harold H. KNIGHT, Janice Knight, and Leon Dixon, Trustees of the Gospel Tabernacle Church of Sedalia, Successors in Trust of Roy Bozarth, James Bozarth, and Walter Clark, Trustees of the Gospel Tabernacle Church of Sedalia, a Corporation, Plaintiffs-Appellants, v. PENTECOSTAL CHURCH OF GOD OF AMERICA, INC., a Corporation, R. D. Heard, President, and Ralph J. Ferguson, Secretary, and the Southern Missouri District of the Pentecostal Church of God of America, a Corporation, Defendants-Respondents.
    No. 51742.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.
    Motion for Rehearing and/or Transfer to Court En Banc Denied Oct. 10, 1966.
    O. E. Brown, Sedalia, for appellants.
    James E. Durley and Durley & Keating, Sedalia, Jack Fleischaker, Joplin, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

Plaintiffs filed this suit in the Circuit Court of Pettis County, Missouri, against the defendants seeking to have a lis pendens declared void and to have title to four lots in Sedalia, Missouri, vested in them.

The defendants filed an answer and a crossbill wherein they requested the court to reform a deed and to compel plaintiffs to convey title to the lots in question to one of the defendants. The trial court entered a judgment in favor of the defendants on the crossbill and plaintiffs appealed.

For an understanding of the situation, it is necessary to describe the parties to this lawsuit. The Pentecostal Church of God of America, Inc., is a worldwide organization with its headquarters at Joplin, Missouri. It is a Missouri corporation. It is authorized to do business in all fifty states of the Union and abroad. This corporation is one of the defendants in this case. In this opinion, we shall refer to it as the “Parent Church.” This religious organization has churches or congregations in the various states. The territory is divided into thirty-seven district organizations. One of these comprises all of the State of Missouri lying south of U.S. Highway 40. It was incorporated as the Southern Missouri District of the Pentecostal Church of God of America, Inc., a corporation. This corporation is also a defendant in this case. Its headquarters are located in Springfield, Missouri. We shall refer to it as the “Southern Missouri District.”

The plaintiff church is the Gospel Tabernacle Church of Sedalia, a corporation, which is located within the Southern Missouri District. The suit was filed in the names of Harold Knight, Janice Knight, and Leon Dixon, trustees of said church, as successors in trust of James Bozarth, Roy Bozarth, and Walter Clark. We shall refer to plaintiffs as the “Sedalia Church.”

The Parent Church is governed by a General Board. Two regular meetings are held each year, said meetings being called bi-annual conventions. One of these meetings was held on November 28, 1962. At this meeting, a motion was adopted authorizing the execution of a deed to convey the property in question, being Lots 1, 2, 3 and 4 in Block 2, Bothwell Place, an addition to the City of Sedalia, Missouri, which was owned by the Parent Church, to the Southern Missouri District. A church was to be constructed on the lots for the Sedalia congregation. It was the custom to have title to church property vested in the name of the district organization or the Parent Church. Before the deed was executed, a request was made by plaintiffs to have the deed made to the Sedalia Church. This church, that is, plaintiff, had applied for a loan of $12,000, which loan had been approved. If the deed had named the Southern Missouri District as grantee, a new application would have been necessary causing an undesired delay. The purpose of the loan was to provide funds for the building of a church. The superintendent of the Parent Church executed a deed conveying title to the Sedalia Church and the deed was delivered with a letter stating, in substance, that upon the completion of the loan, the Sedalia Church was to convey the lots to the Southern Missouri District.

When the loan was completed, the Sedalia Church refused to make the conveyance. Whereupon, the Parent Church had the Southern Missouri District file a lis pendens, giving notice that a suit would be filed affecting the title. The Sedalia Church then filed this suit to have the lis pendens declared void and to have the court decree title to be in the Sedalia Church. The defendants, as above stated, filed an answer and crossbill.

The undisputed evidence was that the Sedalia Church accepted the deed with the understanding that after the loan was completed the property would be conveyed to the Southern Missouri District. The three trustees then in office, James Bozarth, Roy Bozarth, and Walter Clark, testified to that effect. The letter delivered with the deed so provided and the trustees admitted the deed was accepted with the condition contained in the letter. There was no evidence to the contrary. Plaintiffs rely entirely upon the deed and claim the evidence of the three trustees and the letter delivered with the deed were not admissible to support the request to have the deed reformed or to compel the plaintiffs to convey the property to the Southern Missouri District.

In the brief, plaintiffs say that “The Joplin Church is nothing more or less than a corporation, just like the other two corporations involved in this case.” Let that be conceded.

In point two of their brief, plaintiffs say that the trial court found that there was an express agreement to reconvey and that the court referred to the letter but plaintiffs say the letter proves no such agreement. We cannot agree. The letter stated, in part:

“This Deed is to be used in completing your loan arrangements, after which you will execute the necessary documents to effect a transfer of the property to your District organization. Now that the District Articles of Incorporation are now properly completed, this property should be Deeded to the District and not back to the General corporation.”

The three trustees in office when the deed was delivered testified the deed was accepted with the agreement or conditions stated in the letter. It was all one transaction. In the brief, plaintiffs say a court cannot rewrite or alter a deed without evidence to support it, citing Emerson et al. v. Treadway, Mo.App., 270 S.W.2d 614; Wolf et al. v. Miravalle, Mo., 372 S.W.2d 28; and Northrip v. Burge, 255 Mo. 641, 164 S.W. 584. The contention made does not apply to the situation now before us. We have before us undisputed, clear, and convincing evidence of an agreement on the part of plaintiffs to convey the lots in question to the Southern Missouri District after a loan had been completed. A court of equity would, indeed, be a feeble institution if it were powerless to grant relief in the present case. It is not necessary to cite authorities to sustain the judgment of the trial court.

We conclude by quoting a portion of the findings of the trial court which we approve:

“6. No one can be prejudiced by this result and equity which plaintiffs seek is satisfied. Any other result would be a travesty on justice. The title to the church property was in the Joplin organization in the beginning. There is nothing unusual in this as in most church organizations the legal title to church property is held by the parent church, the bishop or some other dignitary for the benefit of the local congregation using the church. Such being true, we have the Sedalia Church petitioning the parent Church (Joplin) to transfer legal title to it so it could put a loan on the property. The parent church makes the conveyance on the express condition that the property be reconveyed. But after the Sedalia Church takes title they refuse to convey as agreed. The Sedalia Church paid nothing for the deed and the Sedalia Church will still have the use of the property as before. To uphold this transaction as plaintiffs seek to do would be most inequitable. The same transaction, if between individuals, could well be denominated grossly fraudulent.”

The judgment of the trial court is hereby affirmed.

PER CURIAM:

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: CULLEN, Commissioner.

text:
    UNITED PUBLIC INSURANCE COMPANY, W. E. Bivin, Commissioner of Insurance, Commonwealth of Kentucky, et al., Appellants, v. A. J. AUXIER CONSTRUCTION COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    As Modified on Denial of Rehearing Oct. 14, 1966.
    S. Roy Woodall, Jr., Frankfort, O. T. Hinton, Pikeville, for appellants.
    Francis Dale Burke, Francis M. Burke, Pikeville, for appellee.
   CULLEN, Commissioner.

United Public Insurance Company, an Indiana corporation, had $22,500 of securities on deposit with the Kentucky Custodian of Insurance Securities, as required by the statutes governing the doing of business in this state by foreign insurers. A. J. Auxier Construction Company, a Kentucky policy holder of United, obtained a judgment against United for some $37,000. Execution upon the judgment having been returned unsatisfied, Auxier sought and obtained from the Pike Circuit Court, under purported authority of KRS 304.497, a judgment ordering the Commissioner of Insurance of Kentucky and the Custodian of Insurance Securities of Kentucky to deliver into court, for application to Aux-ier’s judgment, the securities of United held by the Custodian. United, the Commissioner and the Custodian have appealed from that judgment.

The action by Auxier against United which resulted in the judgment of $37,000 against United was commenced in February 1960. However the final judgment was not entered until July 1964. In the meantime, in January 1961, in proceedings in the Franklin Circuit Court, the Commissioner of Insurance of Kentucky was appointed conservator of the assets of United in Kentucky, and an injunction was issued enjoining any and all persons from “the obtaining of preferences, judgments, attachments or other liens” against the assets of United.

The proceedings in the Franklin Circuit Court were brought pursuant to KRS 304.-9S7 and 304.959(1), and the injunction was issued pursuant to KRS 304.970.

In KRS 304.960, “delinquency proceeding” is defined to include a proceeding for “conserving” an insurer. KRS 304.966 provides in part as follows:

“During the pendency of delinquency proceedings in this * * * state no action or proceeding in the nature of an * * * execution shall be commenced or maintained in the courts of this state against the delinquent insurer or its assets. Any lien obtained by any such action or proceeding within four months prior to the commencement of any such delinquency proceeding or at any time thereafter shall be void as against any rights arising in such delinquency proceedings.”

The appellants maintain that the conservatorship proceedings in the Franklin Circuit Court are delinquency proceedings within the meaning of KRS 304.966, and therefore Auxier is precluded by that statute (and by the injunction) from enforcing its judgment against United by a seizure of the assets in control of the Commissioner of Insurance as conservator. We think this contention clearly is right and we can find no basis (nor did the circuit judge give one) for the holding of the Pike Circuit Court to the contrary. Perhaps the circuit court was of the opinion that KRS 304.966 is applicable only where a “reciprocal” state (see KRS 304.960) is involved, but we see no ground for so limiting the statute. On its face it could (and we think would) apply to delinquency proceedings in this state against a domestic insurance company, and would apply to domestic creditors, without regard to whether there were assets or creditors in some other state (reciprocal or otherwise). By the same token it is not limited, as concerns foreign insurers, to those whose home state is a reciprocal state.

We emphasize that the statute becomes operative “During the pendency of delinquency proceedings in this * * * state.” Had there been no proceeding pending in the Kentucky courts, but only in Indiana (not a reciprocal state) the appellants would have prevailed in their claim.

The judgment is reversed.

HILL, J., not sitting.


text:
    Lucille HAYWOOD, Appellant, v. Dr. Claude L. ALLEN and Beaver Valley Hospital, Inc., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    As Modified on Denial of Rehearing Oct. 14, 1966.

      Robert P. Hastings, Louisville, for appellant.
    J. W. Howard, Paul E. Hayes, Howard, Francis & Howard, Prestonsburg, for ap-pellees.
   CULLEN, Commissioner.

The circuit court entered summary judgment dismissing Lucille Haywood’s action against Dr. Claude L. Allen and the Beaver Valley Hospital, in which action Mrs. Haywood had sought damages based upon the claim that in the course of performing a Caesarean operation upon her the doctor, without her consent, had tied off her fallopian tubes. It was the opinion of the circuit judge, from his examination of discovery depositions, that there was no genuine issue as to the material fact of consent, and that it was clear that consent, “either expressed or implied,” had been given. Mrs. Haywood appeals from the judgment.

To the extent that the circuit judge found that there was no genuine issue as to express consent he was in error, because the depositions show a clear-cut issue on that. However, we agree that the depositions make out a clear case of implied consent.

Admittedly, the plaintiff’s husband gave his express consent, and the circumstances were such as to show that no one really contemplated that a separate expression would be expected from her. Her consent to the Caesarean section was by implication only and it is not suggested that her implied consent to that operation was in any way inadequate. It is evident that the Caesarean section and the tubal ligation were discussed as a “package deal” and there was a tacit understanding that the ligation would be performed during the Caesarean unless Mrs. Haywood should tell the doctor that she did not want the ligation. Corroborative of her having impliedly consented are the facts that she made no protest when told of the ligation’s having been performed and she thereafter continued under the doctor’s care without complaint.

The appellant’s argument is that there was an actual issue of fact as to implied consent as well as express consent. and therefore it was not proper for the court to grant summary judgment. However, the appellant clearly could not prevail on the showing she made on the hearing of the motion for summary judgment, and it is manifest that she could not strengthen her case on the trial and that ultimately and inevitably a verdict would be directed against her. Under these circumstances the issue was not “genuine” within the meaning of the rule. See Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901; Adkins v. Greyhound Corporation, Ky., 357 S.W.2d 860.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    John Ed STEVENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Meriel D. Harris, Somerset, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellant John Ed Stevens was convicted in the Pulaski Circuit Court of the crime of carrying concealed a deadly weapon on or about his person as denounced by KRS 435.230. From a judgment sentencing him to two years in the State Reformatory he appeals.

When appellant was apprehended by the police he was sitting on the right-hand side of the front seat of an automobile. Directly beneath him and under the seat the police found his pistol.

Appellant testified that the slide or ejector mechanism was jammed and the pistol would not fire in that condition. The police officers testified that the ejector mechanism was jammed, but when asked if it would fire in that condition they were beset by equivocality, with the result it would be difficult to say the evidence was uncontradict-ed that the pistol would not fire. However, in order to release the mechanism it was necessary for one of the police officers to shove a wire rod down the barrel and eject the cartridge which was jammed therein.

If there is sufficient evidence to show that a pistol is incapable of being fired, and that evidence is uncontradicted, then it becomes incumbent upon the court to direct an acquittal. Bowman v. Commonwealth, 309 Ky. 414, 217 S.W.2d 967 (1949). Appellant moved for a peremptory instruction at the end of the Commonwealth’s evidence and again at the close of the case. His motion was overruled in each instance and, as heretofore indicated, properly so because there was not uncontradicted evidence that the pistol would not fire.

However, there was sufficient evidence to generate a belief as well as disbelief that the pistol would fire. Consequently, it was the duty of the court to give an affirmative defense instruction. Jarvis v. Commonwealth, 306 Ky. 190, 206 S.W.2d 831 (1947); Turley v. Commonwealth, 307 Ky. 89, 209 S.W.2d 843 (1948); Skidmore v. Commonwealth, 311 Ky. 176, 223 S.W.2d 739 (1949). Appellant’s motion and grounds for a new trial include the failure of the court to instruct on the whole law of the case. This was sufficient to bring to the attention of the trial court the failure to give the affirmative instruction.

The judgment is reversed.


author: CLAY, Commissioner.

text:
    Billy PULLIAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    J. David Cole, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

The sole ground for reversal raised on this appeal is that our habitual criminal procedure, which allows the reading to the jury of an indictment and a conviction of another offense (to determine if the appellant was a second offender), violated appellant’s rights under the Due Process clause of the Fourteenth Amendment to the Federal Constitution and section 11 of the Kentucky Constitution. In three recent cases we have decided this question adversely to appellant’s contention. Jones v. Commonwealth, Ky., 401 S.W.2d 68; Wilson v. Commonwealth, Ky., 403 S.W.2d 705; and Cole v. Commonwealth, Ky., 405 S.W.2d 753 (decided June 17, 1966).

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Willard WILLOUGHBY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Willard Willoughby, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Willard Willoughby, presently a prisoner at Eddyville, appeals from the circuit court’s order denying his RCr 11.42 motion to vacate the sentence which he is now serving as a prisoner. The offense for which he was convicted is rape; the punishment imposed following his plea of guilty was imprisonment for 15 years, pursuant to KRS 435.090. No evidentiary hearing was afforded on the RCr 11.42 motion.

The purported grounds for relief advanced by appellant may be summarized as follows: (1) that the 15 year sentence is contrary to the punishment permitted by the applicable statute; (2) movant was “ * * * coerced into entering a plea to KRS 435.110 by Counsel (sicj/with the understanding that he would réceive no more than a five (5) year term, thus to later learn that he was sentenced to a fifteen (15) year term under KRS 435.090 unlawfully;” (3) movant has newly discovered evidence; and (4) movant was entitled to an evidentiary hearing.

The short answer to contention one is that KRS 435.090 does permit imprisonment of 15 years among its prescribed penalties.

The allegation that movant was “coerced” into entering his plea of guilty is nothing short of an unsupported conclusion. The movant has failed to state any affirmative action taken by his counsel which he would equate with coercion. In the presence of such a vaporous allegation the court is not required to afford an evidentiary hearing; Humphries v. Com., Ky., 397 S.W.2d 163; Lawson v. Com., Ky., 386 S.W.2d 734.

“Newly discovered evidence” as it may pertain to the issue of guilt is not a basis for relief under RCr 11.42. Roark v. Com., Ky., 404 S.W.2d 22.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Bona Lee PEMBERTON, Appellant, v. Glenn Leo PEMBERTON, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Paul C. Hobbs, Ashland, for appellant.
    C. B. Creech, Ashland, for appellee.
   WADDILL, Commissioner.

Appellee, Glenn Pemberton, was granted a divorce from appellant, Bona Lee Pem-berton, on the ground that she had been guilty of lewd and lascivious conduct which proved her to be unchaste. KRS 403.020 (4) (c). The custody of their three-year-old son was awarded to his father and his mother was permitted to have him visit with her one week of each month. The mother has appealed contending that she is entitled to the exclusive custody of her son.

The welfare of the child, and not the wishes of the parents, is the chief concern of the courts. McLemore v. McLemore, Ky., 346 S.W.2d 722, 92 A.L.R.2d 691. The trial judge, upon sufficient evidence of her misconduct, found that appellant had forfeited her right to have custody of the child. Appellant’s argument to the contrary is unavailing in face of her moral indiscretions which she frankly concedes. Out of an abundance of caution we look to her contention that appellee is not fit to have custody. This argument is based on testimony to the effect that he is a very inefficient housekeeper. While this may be a matter to be considered, it is not of itself a sufficient ground to establish that a person is not suitable to have a child’s custody. In the instant case the totality of the evidence tends to show appellee’s fitness as implicitly found by the trial judge.

Appellant’s argument that appellee’s parents are not proper persons to rear the child is not before us since they were not given his custody.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Charles N. BACH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    John C. Fogle, Mt. Sterling, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Charles N. Bach was convicted of a violation of KRS 433.220 and sentenced to serve three years’ confinement in the reformatory. It was charged that he “ * * * did unlawfully and feloniously take, drive or operate a motor vehicle, * * * the personal property of Harry Hunt and Jack May, without the knowledge and consent of the said owners, * * He urges on appeal that the evidence is insufficient and that certain testimony was erroneously admitted.

Harry D. Hunt, an auto dealer, discovered that a 1960 Ford was missing from his used car lot in Mt. Sterling. The loss was reported to the police.

Several days later John P. Tilley, sheriff of Carroll County, received a call which led him to a drive-iti restaurant near Car-rollton. He saw appellant and a companion in a Ford car parked at the curb for service. Appellant was seated under the steering wheel. He admitted to Tilley that he had no title to the car and that he had taken it. The car was subsequently identified as being the one taken from Hunt’s Mt. Sterling used car lot. When appellant was arrested the ignition wires in the car were disconnected and there was no key in it. The sheriff searched appellant at the time of the arrest and took from him a wallet containing papers that indicated it belonged to one Leonard Campbell. An Armed Forces identification card corresponding to the identity of the appellant was also in the wallet. The chief of police in Mt. Sterling testified that Campbell, a Mt. Sterling resident, had identified the wallet as belonging to him.

Appellant argues that the proof failed to establish that he either took, drove, or operated the car. He urges that he was only sitting in the car and did not move it. The unexplained presence of appellant in a car in Carrollton which unquestionably had been taken from Mt. Sterling without the owners’ consent, coupled with the testimony concerning the. ignition wires, the wallet taken from a Mt. Sterling resident, and appellant’s admission that he had taken the car, was sufficient to establish a case for the jury under KRS 433.220.

The Carroll County sheriff was permitted to testify without objection concerning the discovery of the wallet and its contents. Failure to object constituted a waiver as to this testimony. RCr 9.22. The Mt. Sterling chief of police testified over objection that the wallet.had been identified as belonging to Leonard Campbell. The basis of this objection is that it is hearsay and injects the commission of a second offense into the trial. The witness did not repeat any conversation with Campbell but testified that Campbell had identified the wallet. Without deciding whether the testimony was erroneously admitted, in view of the other evidence concerning the wallet and appellant’s admission, the error, if any, was not prejudicial. The identity of the wallet’s ownership was evidence of the proximity of the appellant to the place where the car was taken, which tended to show that appellant had been in Mt. Sterling and the commission of the offense charged. .For this purpose it was admissible. Shepperd v. Commonwealth, Ky., 322 S.W.2d 115; Smith v. Commonwealth, Ky., 366 S.W.2d 902; and Shirley v. Commonwealth, Ky., 378 S.W.2d 816.

Judgment affirmed.


text:
    Graphy RATLIFF et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.

      Jack L. Lewis, Paintsville, for appellants.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

The three appellants were jointly tried on a charge of aiding, abetting and assisting in the murder of one Huffman. They were each found guilty of manslaughter and sentenced to IS years in the penitentiary.

The appellants, with James Ratliff (who was likewise found guilty), were riding around early one morning in a car driven by Huffman. There had been considerable drinking. Ratliff and Huffman got into an argument, got out of the car, and after a scuffle Huffman was stabbed in the heart. There is some question concerning what other members of the party were out of the car at the time. Huffman was put back in the car and the party was picked up by the police in Paintsville as the result of a traffic violation. At that time one of the appellants is said to have stated, “you-uns know you killed him”.

It is evident that Ratliff was the most likely person in the party to have killed Huffman by stabbing him. The theory of the Commonwealth is that the appellants participated in a plan to promote an altercation between Ratliff and Huffman and that they may have actively participated in the actual killing. The evidence against them is practically all circumstantial. It appears that one of the appellants (Graphy Ratliff) was married to James Ratliff and had been quite friendly with the deceased Huffman.

Our first question is whether there was sufficient evidence to sustain the verdict. Certainly there was ample evidence to support a jury finding that Huffman was killed in appellants’ presence. While the statement of one of the appellants that “you-uns killed him” would tend to implicate one or both of the other two appellants (with Ratliff) as participants in the killing, it is too vague to implicate any particular person. This same appellant testified that appellant Holloway “rolled out of the car” at about the same time Huffman and Ratliff did, but no other participation by Holloway is shown. There is testimony that Ratliff had stated that all three appellants were out of the car at the time of the altercation, but this does not prove they committed a crime. While a jury could reasonably infer that appellants encouraged or permitted a fight between Ratliff and Huffman, it is entirely speculative that they could anticipate this fight would result in a fatality.

We do not believe the Commonwealth produced any evidence of substance which established that appellants committed a criminal act. See Hollin v. Commonwealth, Ky., 307 S.W.2d 910. Their mere presence at the scene, or their occupancy of the automobile in which the deceased Huffman was transported, was not enough. Certainly there was no evidence to justify a conviction of manslaughter (which involves a killing in sudden heat and passion or in sudden affray). The trial court should have directed a verdict for appellants and the judgment must be reversed on this ground..

We believe it proper to comment on one other issue raised on this appeal since the question would doubtless be raised in the event of a new trial. It is contended that appellants’ constitutional rights were violated when the statements of two of them were taken and reduced to writing during the investigation of this crime. These statements were admissible (they were in no sense confessions) either on the ground that the parties giving the statements were not accused of a crime, or the statements were voluntarily given after due protection of appellants’ constitutional rights.

We do not pass on other questions raised.

The judgment is reversed. In the event of a new trial, if the evidence is substantially the same, the trial court will direct a verdict for the appellants.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Leon B. CAMPBELL, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellant.
    Leon Eichenholz, Louisville, for appellee.
   WADDILL, Commissioner.

The Commonwealth seeks a certification of the law concerning whether count one of an indictment against appellee states a violation of KRS 436.360. Count one avers:

“That during the year of 1965, in Jefferson County, Kentucky, the above named defendant conducted, managed, or promoted the business of Filter Queen of Louisville, Inc., a lottery or gift enterprise.”

Upon an indictment in which the averment is indistinguishable from that herein presented the identical question was answered in Commonwealth v. Allen, Ky., 404 S.W.2d 464. In that case we certified that such an averment in an indictment does properly state the offense denounced by KRS 436.360. The former certification is dispositive of the instant query.

The law is so certified.


author: HILL, Judge.

text:
    James W. ROACH et al., Appellants, v. Garnett ROACH etc., Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    William A. Young, James L. Williams, William E. Johnson, Frankfort, for appellants.
    Chat Chancellor, Chancellor & Darnell, Frankfort, for appellee.
   HILL, Judge.

This appeal is from a summary judgment under CR 56.01 dismissing appellants’ complaint demanding an interest in real estate and for an accounting by an executrix. We reverse the judgment.

Emily Roach, the grandmother of appellants and appellee, died testate in 1923. The material portion of her will provides:

“THIRD: The remainder of my estate I give equally between my 5 grandchildren, Lelia Kendall, Mary Barrickman, Garnett Roach, Coleman Roach and James Roach. * * * I leave it entirely to my administrator (sic) to sell my land as she thinks best. I appoint Mrs. Ella Harrod my administrator (sic) of this my will without bond.”

Shortly after the death of Emily Roach, her daughter-in-law Ella Harrod qualified as executrix and sold one tract of land to pay debts and funeral expenses. In 1926, Ella Harrod moved her five children and second husband onto the farm in controversy. Not long thereafter, she offered the farm for sale. Lelia Kendall, one of the appellants, was the highest bidder with an offer of $2350. However, she could not raise the money. Appellee claims Ella Her-rod was the second best bidder on her bid of $100 or $150 less than that of Lelia Kendall. The record is not clear when Lelia announced her inability to pay for the farm or the date Ella Harrod decided to accept her own bid as being second best and sell the farm to herself; it may be assumed it was some few days after the attempted auction.

So far as this scant record reveals, Ella Harrod did not make a deed for the farm to herself. She and the children continued to reside on the farm intermittently for some years until appellants married and moved away. Thereafter, Ella and appellee Garnett continued to reside on the farm for the last nineteen years of Ella’s life. About 1930, Ella Harrod caused to be prepared a deed naming her five children as grantors. Only appellee Garnett Roach signed it and was paid $400 for his interest. It is undisputed that three of the children refused to sign the deed. It is conflicting whether Coleman Roach, the fourth appellant, signed the deed, but it is uncontradicted that he did not receive any compensation. Ella was named grantee in the deed.

Ella Harrod died testate in 1964 leaving all her estate to appellee Garnet Roach. Ella did not file an accounting or settlement under the will of Emily Roach.

During the occupancy of the farm by Ella (sometimes with all of the children and other times with part of them), she paid all taxes and was paid the landlord’s share of rentals.

This suit was filed by the four appellants against Garnett Roach, individually, and as executor of his mother’s estate, to quiet title to the farm, claiming they each owned a one-fifth interest, and for an accounting of the profits from the death of Emily Roach to the death of Ella Harrod in 1964. Appel-lee filed an answer admitting appellants owned the interest claimed in the land but sought to avoid an accounting on various, pleas. Later, with the permission of the court, appellee withdrew his pleading admitting ownership by appellants of interest in the land.

In appellee’s petition for appointment as executor of the will of Ella Harrod, the following appears:

“PERSONAL PROPERTY OF THE ESTIMATED VALUE OF $8,000.00
REAL PROPERTY OF THE ESTIMATED VALUE OF None.”

We take off into an atmosphere dense with suspicion when a person in his fiduciary capacity undertakes to do business with himself in his capacity as an individual. Cf. Darcus v. Crump, 35 Ky. (6 B. Mon.) 363; Eads v. Brinegar, 306 Ky. 343, 207 S.W.2d 772. But, we do not have to worry about that hazard long, for admittedly there was no consummation of the attempted sale by the execution of a deed. Furthermore, Ella Harrod about 1930 recognized and acknowledged ownership of the land by her children when she attempted to purchase their interest and did actually purchase the interest of one. Appellee also acknowledged their title by reporting to the' county court after the death of Ella Harrod that his mother owned no real estate. After this suit was filed, appellee admitted in his pleading that appellants were the joint owners and tenants in common with him. We fail to discover in this record any means by which title to the farm ever passed to Ella Harrod. After she purchased Garnett Roach’s interest, she was a tenant in common with her other four children, and the statute of limitation would not preclude their recovery. Nor do we interpret any act or conduct on the part of appellants or Ella Harrod amounting to a holding of the farm in a hostile, open, notorious, or adverse manner.

The judgment is reversed with directions to enter another, quieting the title of each of the appellants to a one-fifth interest in the land in question.

The demand for an accounting may involve pleas of limitation and estoppel and a determination of the extent of personal property, if any, in the name of Ella Harrod as executrix of the estate of Emily Roach and possible other questions. Therefore, the issue concerning demand for accounting is remanded to the circuit court for further proceedings.