author: HOLMAN, Judge. STORCKMAN, Judge

text:
    In the Matter of the ESTATE of John W. MYERS, Deceased, Appellant, Laclede Gas Company, a Corporation, Petitioner-Respondent.
    No. 50358.
    Supreme Court of Missouri, En Banc.
    March 9, 1964

      W. W. Sleater, III, and Suelthaus & Krueger, St. Louis, for appellant.
    Whittington & Whittington, Allen H. Whittington, Mildred Whittington, Malloy J-. McQueen, Richard L. Eckhart, Charles F. Hamilton, St. Louis, for respondent.
   HOLMAN, Judge.

In this case Laclede Gas Company sought to recover an alleged trust fund amounting to $1,423.44 from the estate of John W. Myers, deceased. The proceeding was commenced by the filing of a petition by Laclede in the Probate Court of the City of St. Louis under the provisions of § 473.357 (unless otherwise stated all statutory references are to RSMo 1959, V.A. M.S.). The petition was denied by the probate court. Upon appeal the circuit court found in favor of Laclede. The Estate duly appealed to the St. Louis Court of Appeals and that court reversed the judgment of the circuit court. In re Myers’ Estate, 368 S.W.2d 925. Upon application by Laclede, we ordered the case transferred to this court and it “will be finally determined by the Supreme Court the same as on original appeal.” Civil Rule 84.05(h), V.A. M.R.; Art. V, § 10, Constitution of Missouri, 1945, V.A.M.S.

The facts are not in controversy. An agreed statement of facts was filed in the probate court and refiled in the circuit court upon the trial de novo there. In our statement of the facts we will adopt (without the use of quotation marks) portions of the factual statement appearing in the court of appeals opinion.

John W. Myers died on January 3, 1961, and at the time of his death was the sole owner of Myers Hardware and Paint Company located at 5350 Devonshire Avenue, St. Louis, Missouri. On December 8, 1958, the decedent and the petitioner, Laclede Gas Company, entered into a written agreement. The pertinent parts of said agreement provided for the appointment of the decedent as one of the contracting agents of petitioner for the collection of bills for gas service and appliances on condition, among other things, that he keep a strict and correct account of all collections made on forms prepared and furnished by the petitioner; that he keep separate and distinct from the decedent’s own funds and other property all moneys collected under the agreement and all papers and records pertaining to such collections; that he deliver each day to the petitioner at its office all the moneys collected on the previous day. Under the agreement decedent was to “hold in trust” for the petitioner all the moneys collected until such moneys were paid to the petitioner. Decedent had to keep the stubs removed from bills, so that a record of collections would be available in the event of loss of moneys by holdup, burglary, etc. For the performance of this collection service the decedent was to receive a stated compensation set out in the agreement.

It was further stipulated that on and prior to January 3, 1961, and subsequent to December 8, 1958, decedent had accepted payment of gas bills due to the petitioner and had made periodic remittances to the petitioner for those collections.

It was agreed that at the time of the death of John W. Myers he had collected but not remitted to the petitioner the sum of $1,423.44, said amount of money having been paid to John W. Myers or to his employees by 110 customers of the petitioner. With one exception, all of those bills were collected on or after December 29, 1960, and a large number of them were collected on the date of Mr. Myers’ death, i. e., January 3, 1961. The amounts so collected were deposited in a bank account in the Southwest Bank of St. Louis carried in the name of John W. Myers, individually, “said account being subject to withdrawal upon checks bearing the signature of ‘Myers Hardware Company by John W. Myers, or Florence E. Myers.’ ”

On January 3, 1961, Florence Myers, widow of John W. Myers, issued and delivered to petitioner a check for $846.25, and on January 5, 1961, issued and delivered another check for $577.19. Those checks totaled $1,423.44 which is the amount sought to be recovered in this action. Both checks were returned to the petitioner by the Southwest Bank of St. Louis because of the death of John W. Myers. The described bank account was the only bank account owned and carried by the decedent and all of his business accounts and personal bills were paid by checks drawn on that account. On the date of the death of John W. Myers, the balance in the Southwest Bank of St. Louis, to the credit of his estate, was $2,-945.29, and the claims filed and allowed against said estate were far in excess of the assets.

The petition filed by Laclede bases its right to recover the fund in question upon § 473.357, which reads as follows:

“If a person files in the probate court a verified petition alleging that the decedent was not and that the petitioner is the owner of personal property described therein, and that it is in the possession of the executor or administrator, and alleges how he acquired ownership thereof and that possession of the property is being wrongfully withheld from him by the executor or administrator, and prays that the court determine the title thereto and order and direct the executor or administrator to deliver the property to the petitioner, a notice and a copy of the petition shall be served on the executor or administrator, who, within ten days thereafter, shall file answer to the petition. If the answer does not admit the allegations of the petition the matter shall be set for hearing by the court and tried upon the issues under the petition and answer, and judgment shall be rendered according to the finding and for costs.”

The main contention of appellant is that petitioner was not entitled to recover because the specific money collected was not in existence since it had been deposited in decedent’s bank account, and that said money could not be recovered as a trust fund because such would require equitable action to trace the money collected into the Myers bank account, which relief the probate court has no jurisdiction to render. Appellant therefore concludes that a debtor-creditor relationship existed between Laclede and deceased and hence that Laclede was limited to obtaining allowance of a general claim against the estate.

It will be noted that § 473.357 provides a procedure whereby property wrongfully withheld by an executor or administrator may be recovered in the probate court as distinguished from the procedure specified in § 473.340 (discovery of assets) which permits a recovery of property wrongfully withheld from an executor or administrator. We agree that the procedure authorized by § 473.357 will usually be employed to recover specific personal property which can be identified in kind. However, we have concluded that said section will warrant a recovery by Laclede in this action if the court had jurisdiction to trace the money collected into the bank account of decedent.

Under the terms of the agreement Mr. Myers was to keep the money collected separate from his personal funds, and he agreed to “hold in trust for the company all moneys collected hereunder until such moneys are paid to the company.” Therefore, when Myers wrongfully deposited the collections in his personal account it did not create a debtor-creditor relationship but, on the contrary, created a specific trust fund to be held for the benefit of La-clede.

The only question remaining for our decision is whether the court was authorized to trace this trust fund into the account of decedent. It is elementary that, since this proceeding originated in the probate court, the circuit court, on appeal, had only such jurisdiction as could have been exercised by the probate court. It is also well settled that “[jjurisdiction over trusts is one of equity’s original and inherent powers.” Rawlings v. Rawlings, 332 Mo. 503, 58 S.W 2d 735, 737. The tracing of trust funds is purely equitable in nature. Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517. Therefore, the probate court had no jurisdiction to grant the relief sought by Laclede unless that court has equitable jurisdiction in a case of this nature.

The cases decided by the appellate courts of this state concerning the equitable powers of the probate court are in hopeless conflict. See West, Mo. Digest., Courts, Some of the cases state unequivocally that such courts have no equitable jurisdiction. Others hold that probate courts may exercise equitable powers in certain instances. A third group of cases hold that probate courts have no purely equitable jurisdiction but may invoke equitable principles in determining issues within their jurisdiction. To say the least, these decisions have created a state of uncertainty and confusion regarding the matter of equitable jurisdiction in probate courts. It has been suggested that the appellate courts have been reluctant to hold that probate courts were possessed of equitable jurisdiction because, prior to 1945, the probate judges in most of the counties of this state, were not required to be lawyers. That situation was changed by the adoption of Art. V, § 25, Constitution of Missouri, 1945, V.A.M.S. which provided that thereafter (except for temporary holdovers) probate judges shall be required to have a license to practice law in this state.

In the case before us we are particularly interested in the decisions relating to the jurisdiction of probate courts in matters involving trusts. They are also in conflict. A number of cases hold that probate courts have no jurisdiction in any matter involving a trust. See State ex rel. and to Use of Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152, State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909, Orr v. St. Louis Union Trust Co., 291 Mo. 383, 236 S.W. 642, and Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517. Other cases have approved the exercise of equitable jurisdiction by probate courts in trust cases. See Hoffmann v. Hoffmann’s Ex’r., 126 Mo. 486, 29 S.W. 603, State ex rel. Stetina v. Reynolds, 286 Mo. 120, 227 S.W. 47, and Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353.

Prior to 1955 the jurisdiction of probate courts was specified in § 481.020, RSMo 1949, V.A.M.S., as follows: “Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by administrators, curators and guardians.” However, in the enactment of the 1955 Probate Code, that section was repealed and § 472.030 was enacted, which reads as follows: “The court has the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters and its executions shall be governed by chapter 513 RSMo, except that all executions shall be returnable within thirty days unless otherwise ordered by the court. All process of the probate court may be served anywhere within the territorial limits of the state.” Although almost nine years have passed since the enactment of § 472.-030, there has been no decision of this court which has construed the meaning of that part of the section which states that probate courts shall have the same equitable powers to effectuate its jurisdiction as circuit courts have in other matters. Upon the subject generally, see “Equity Jurisdiction in Probate Matters Under the New Code,” Leslie A. Welch, 1961 Wash.U.L.Qr. 309, and the supplement thereto in 1963 Wash.U.L.Qr. 338.

The statute under consideration was first noticed by this court in the case of North v. Hawkinson, Mo.Sup., 324 S.W.2d 733, 740, but we were not called upon to construe or apply it in that cause. Shortly thereafter, this court decided the case of In re Frech’s Estate, Mo.Sup., 347 S.W.2d 224, in which, without any reference to § 472.030, prior decisions were approved which greatly restricted the equitable jurisdiction of probate courts. Since § 472.030 was-not called to the attention of the court, nor considered, in Freeh, we will not consider that case in our determination of the meaning and effect of that statute. We next referred to § 472.030 in Mathews v. Pratt, Mo.Sup., 367 S.W.2d 632, 635, wherein we said that “[w]e have no occasion here to' construe that section, nor shall we do so. We merely call attention to it. It was ignored in Freeh, supra, but it was discussed' later in Stark. The proper time and place will come for an adequate construction of the section, but this case presents neither,, for this appeal does not arise from probate-action or assumed probate jurisdiction.”

The St. Louis Court of Appeals considered § 472.030 in the case of Stark v. Moffit, Mo.App., 352 S.W.2d 165. In that case the facts were somewhat similar to those in the case at bar in that plaintiff sought to-have his claim paid out of an escrow fund. The court held that the section under consideration did not grant to probate courts-jurisdiction in purely equitable matters. In-holding that the probate court could not have decreed that plaintiff’s claim be paid out of the escrow fund the court said that such “would be, in effect, the establishment and enforcement of a trust in favor of plaintiff on the escrow fund, a purely-equitable relief, and beyond the jurisdiction of the Probate Court.” 352 S.W.2d 170.

The primary rule to be followed in the construction of statutes is to ascertain and give effect to the intent of the legislature. Taney County v. Empire District Elec. Co., Mo.Sup., 309 S.W.2d 610. When the Sixty-Eighth General Assembly enacted § 472.030, it was certainly aware of the fact that the 1945 Constitution contained a requirement to the effect that one of the qualifications of a probate judge was that he be a lawyer. It also knew of the state-of uncertainty and confusion that had resulted from the many conflicting opinions-of the appellate courts upon the question of the equity powers of the probate courts. In view of that situation we think it is reasonable to conclude that in enacting § 472.030 the legislature intended to eliminate the existing state of uncertainty by inserting language in that section which would clarify the extent to which equitable jurisdiction would vest in the probate courts. We think the language used is clear and that the legislature meant just what it said, i. e., that the probate court shall have “the same * * * equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters. * * * ” The circuit court certainly has complete and unrestricted equitable powers in “other matters,” i. e., matters properly cognizable before that court. We therefore must conclude that it was intended that this section would give probate courts complete and unrestricted equitable powers “in probate matters.” The difficulty in construction may likely arise in determining the proceedings coming within the classification of “probate matters.” It is suggested by Judge Welch that “a controversy which necessarily is involved in the winding up of the affairs of a decedent, is a matter pertaining to probate business * * 1963 Wash.U.L.Qr. 346. This court has heretofore stated the general rule that “[mjatters of probate business, as commonly understood and under all the authorities, pertain to the proving of wills, the appointment of guardians and curators, and the administration and settlement of estates of decedents, incompetents and the like.” Downey v. Schrader, 353 Mo. 40, 182 S.W.2d 320, 323. It is our view that the scope of matters which may be included in the phrase, “probate matters,” will not be fully and completely determined until various questions in that regard are, from time to time, presented to the appellate courts for judicial decision. In the case at bar, it may confidently be said that the simple matter of tracing the collections made by Mr. Myers into his bank account, which shortly thereafter came into the possession of his executrix, is a proper exercise of equitable powers by the probate court in a “probate matter.” To the extent that the opinion in Stark v. Moffit, supra, is contrary to the views herein expressed, it should no longer be followed.

In an additional brief filed here appellant contends (for the first time) that the petition was not sufficient to raise any equitable issues. We do not agree. The petition and attached exhibits show that Myers made collections in the amount of $1,423.44, which sum was to be held in trust for Laclede; that said sum was in the possession of Myers at the time of his death and is now in the possession of his executrix; that it is wrongfully withheld from Laclede by the executrix, and an order was sought directing the executrix to deliver same to Laclede. Those allegations were sufficient to authorize a finding that the moneys collected constituted a trust fund. Moreover, the case was obviously tried in the circuit court, without objection, upon the theory that petitioner was seeking to establish a trust and, therefore, even if we should assume that the allegations were not sufficient, the issue would be treated as if it had been raised in the pleadings. Civil Rule 55.54, V.A.M.R. We also observe that the equitable issue was briefed by both sides in the court of appeals and was decided by that court. As indicated, this point is without merit.

We feel that we should not conclude this opinion without some discussion of the case of Lolordo v. Lacy, supra. That was a discovery of assets proceeding (originating in the probate court) in which the administrator sought to recover money in the hands of a trustee who had conducted foreclosure proceedings upon real estate owned by decedent. The money had been deposited in the trustee’s bank account and commingled with his personal funds. Defendant sought credit for certain expenditures made for the benefit of the estate. We held that the money in the bank account was a trust fund and affirmed a judgment whereby the administrator recovered from the account the balance found due the estate. That case, considered alone, would ordinarily be regarded as sufficient authority for affirming the judgment in the instant case. However, in view of the many conflicts found in the cases which have decided questions concerning the equitable jurisdiction of probate courts, we hereinbefore concluded that we could not prudently decide this case upon the sole authority of Lolordo. In order to render a decision which we considered would be unquestionably authoritative, we deemed it necessary to construe § 472.030 and to rely primarily upon our consideration thereof as the basis for this decision.

For the reasons heretofore stated, we rule that the trial court properly found that Laclede was the owner of the trust fund of $1,423.44 in the possession of the executrix of the Myers estate, and that said executrix was properly ordered to pay said fund to Laclede.

Judgment affirmed.

EAGER, C. J., and LEEDY, DALTON and HYDE, JJ., concur.

STORCKMAN, J., concurs in result in separate opinion filed.

HOLLINGSWORTH, J., concurs in result and concurs in separate opinion of STORCKMAN, J.

STORCKMAN, Judge

(concurring in result).

I think the majority opinion reaches the correct result but that it goes beyond what is necessary to dispose of the case in discussing the statutes and especially § 472.-030, RSMo 1959, V.A.M.S. My view is limited to the proposition that the claim to recover trust funds from the estate of a decedent pertains to probate business (Art. 5, § 16, Constitution of Missouri, and § 472.020, RSMo 1959, V.A.M.S.), and that the probate court has jurisdiction to decide the issue under authority of Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353, 357 [16].

Therefore, I concur in the result only.


source: Caselaw Access Project

author: STORCKMAN, Presiding Judge.

license: Public Domain

text:
    Carl M. COOPER, a Minor, by His Next Friend, Barbara J. Cooper, His Mother, Appellant, v. Charles FINKE, d/b/a Finke Monument Works, Respondent.
    No. 49973.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.
    Rehearing Denied and Opinion Modified March 9, 1964.

      Hungate & Grewach, William L. Hun-gate and P. J. Grewach, Troy, Niedner, Niedner & Moerschel, St. Charles, for appellant.
    Alexander & Robertson, L. A. Robertson and Ernest E. Baker, St. Louis, B. Richards Creech, St. Charles, for respondent.
   STORCKMAN, Presiding Judge.

This is an appeal from a summary judgment rendered in favor of the defendant in a personal injury action seeking damages in the sum of $50,000 on account of the alleged negligence of the defendant in the maintenance of a display of tombstones, monuments and grave markers in an open yard, one of which fell on the plaintiff and injured him. The plaintiff was fourteen years of age at the time he was injured; he sued by his mother as next friend.

The defendant’s motion for summary judgment, or in the alternative, to dismiss plaintiff’s petition, after stating in substance the contents of the petition, further alleges:

“3. As shown by plaintiff’s deposition taken on the 4th day of October 1962, pages 3 to 52 inclusive, and also from plaintiff’s deposition taken on November 21, 1962, pages 3 to 16 inclusive, together with defendant’s exhibits A and B, plaintiff is 14 years old, a first year student at Buchanan High School located in Troy, Missouri, and he sustained his alleged injury about 8:00 to 8:30 PM when it was dark. That plaintiff and his younger brother left the Southern Air Restaurant after finishing their meal, telling his mother he was going to sit in the automobile parked outside and wait outside of said restaurant for his mother and the other members of his family to come out to the car. Plaintiff and his brother played around the cars parked on the parking lot of the Southern Air Restaurant, and then crossed a public street to this defendant’s display yard at a time when defendant’s place of business was closed, and began playing around the monuments by climbing on and over them, and plaintiff then began rocking a tall monument back and forth until it fell over on him.

“4. For grounds of this motion this defendant states that there is no genuine issue as to any material fact, and that this defendant is entitled to a judgment as a matter of law because plaintiff was a trespasser at the time of sustaining his alleged injuries, and for the further reason that plaintiff’s petition fails to allege facts sufficient to state a cause of action against this defendant, and this defendant relies on the pleadings filed herein and the several depositions taken on behalf of the defendant, as well as defendant’s exhibits A and B, and also upon the depositions taken at the request of plaintiff’s attorneys and filed of record.” The prayer of the motion was for a summary judgment against the plaintiff and in favor of the defendant in accordance with Civil Rule 74.04, V.A.M.R.

One of the attorneys for the plaintiff filed an affidavit in opposition to defendant’s motion for summary judgment in which the affiant denied that the defendant was entitled to a summary judgment, asserted facts substantially as alleged in plaintiff’s petition and concluded that there was a genuine issue as to material facts and that no grounds existed justifying the entry of a summary judgment for the defendant.

The plaintiff’s petition alleges in substance that defendant operates a business selling tombstones, monuments and grave markers in Wentzville, and in furtherance of said business displays tombstones, monuments and grave markers outdoors on a lot which is unfenced and which adjoins a highly traveled public street; that the monuments and grave markers are solid stone and in some cases very heavy; that the monuments on display are placed on temporary stands without being cemented- to, bolted to or permanently attached thereto; that the bottom surfaces of the tombstones and the top surface of the temporary stands are irregular and unsmooth and projections on said surfaces which cause the tombstones, monuments ' and grave markers to be unsteady and easily rocked and swayed and tilted back and forth; that for several years prior to April 24, 1962, the above-described condition regarding the tombstones, grave markers and monuments continued to exist and children entered the yard and were attracted to and played among the tombstones, monuments and grave markers and rocked and swayed and tilted the aforesaid tombstones, monuments and grave markers, and defendant knew thereof for a number of years; that defendant knew of the unsteady condition of the tombstones and monuments displayed in the yard and knew that it involved an unreasonable risk of serious bodily injury to the children playing among the tombstones and monuments ; that on April 24, 1962, plaintiff entered the above-described display yard of defendant and began to rock a tall, heavy monument back and forth and it fell over on plaintiff, causing his injury.

The defendant’s first pleading was a motion to dismiss plaintiff’s petition for failure to state a cause of action. This motion was withdrawn and the defendant then filed an answer which admitted the ownership and operation of the business, denied or put the plaintiff on proof of all other allegations, and affirmatively pleaded contributory negligence. Thereafter, the cause was Set for hearing but before the trial date arrived the defendant filed his motion for summary judgment or, in the alternative, to dismiss. The substance of the motion is above set out. On January 7, 1963, the motion for summary judgment was presented, submitted, and taken under advisement; on January 8, 1963, it was sustained and judgment was rendered for the defendant. The court’s ruling was incorporated in the following memorandum: “Defendant’s motion for summary judgment now having been duly considered, the Court finds from the plaintiff’s pleadings and depositions that the defendant is entitled to judgment as a matter of law, and his motion for summary judgment is granted. It is therefore ordered and adjudged that plaintiff take nothing by his petition, and that the defendant stand discharged with his costs. Counsel notified. (In reaching this decision, the Court has particularly relied on the cases of Patterson v. Gibson, Mo., 287 S.W.2d 853; Baker v. Praver, Mo., 361 S.W.2d 667, and those cited in the annotation of 28 A.L.R.2d 220).”

Discovery depositions taken by both parties have been forwarded to this court. On October 4, 1962, the defendant took the depositions of the plaintiff Carl M. Cooper, his brother Steve Cooper, and his mother Barbara Jean Cooper. On November 21, 1962, the defendant further examined the plaintiff and also took the depositions of his sister Linda Louise Cooper and his aunt Betty Lee Mills. These two sets of depositions, however, were not filed in the Circuit Court of St. Charles County until January 9, 1963, which was the day after the circuit court sustained the defendant’s motion for summary judgment and entered judgment against the plaintiff. Civil Rule 74.04(c) relating to summary judgment procedures provides that: “Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Italics added. Counsel for the defendant in his brief and oral argument properly concedes that the depositional testimony of the plaintiff and the other witnesses taken on October 4 and November 21, 1962,. cannot be relied on to support the judgment because the depositions were not on file when the motion for summary judgment was considered and decided. These are the depositions referred to in paragraph 3 of the motion for summary judgment.

On October 4 and November 21, 1962, depositions of the defendant Charles Finke and his wife Katie Finke were taken on behalf of the plaintiff. These depositions having been filed in the circuit court on December 14, 1962, were on file when the motion for summary judgment was submitted and determined. According to these depositions, the accident occurred after dark at about 8 p. m. It was after business hours and neither the defendant, his wife, nor any of his employees were present at the time. The defendant described the premises and gave the dimensions, construction and weight of the monument involved. It was set on a level concrete base with a piece of plaster lath at each corner but was not caulked to the base as it would be when erected in a cemetery. The defendant testified that he never saw children play among the monuments and never had any reports of children so playing.

Civil Rule 74.04, V.A.M.R., relating to summary judgment procedures, is practically identical with Rule 56 of the Federal Rules of Civil Procedure. 28 U.S.C.A., Rules 52 to 58, p. 302, and 1963 Cumulative Pocket Part. The federal rule had been in existence for many years when the Missouri rule was adopted in 1960. Thus the federal decisions construing Rule 56 are particularly persuasive in applying the Missouri rule.

The appellate court as well as the trial court must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 473, 82 S.Ct. 486, 7 L.Ed.2d 458; United Mine Workers of America, District 22, v. Roncco, 10 Cir., 314 F.2d 186, 188 [5, 6]; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, 884 [3] ; Purity Cheese Co. v. Frank Ryser Co., 7 Cir., 153 F.2d 88, 89 [1, 2] ; McMahon Bros. Realty Co. v. United States Fidelity & Guaranty Co., D.C., 217 F.Supp. 567, 568 [2]; 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, § 1235, p. 138. Subdivision (h) of Missouri Civil Rule 74.04 is not a part of the federal rule but is practically a codification of the federal decisions on the subject. It provides that: “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereLO as a matter of law.”

3 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, § 1232.1, states that: “Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony, as it is in other kinds of litigation.” In negligence cases the procedure is ordinarily used to attack some essential feature of plaintiff’s case such as agency rather than the failure of one of the parties to use due care.

As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure. Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216 [6]; Garner v. Triangle Publications, Inc., D.C., 97 F.Supp. 546, 549 [6]; John Wright & Associates, Inc., v. Ullrich, D.C., 26 F.R.D. 19, 20 [1]; 35B C.J.S. Federal Civil Procedure § 1135, p. 525. Although it is useful and beneficial in many situations, it cannot be substituted for a conventional trial of factual issues “unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Civil Rule 74.04(h), V.A.M.R.; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458.

Where, as here, depositions are taken for discovery purposes, it would seem to be the better practice to call attention in the motion for summary judgment to the particular part of the deposition upon which the movant is relying to support his motion. Also it would seem desirable for the motion to specify with particularity the essential issues of the case which the movant seeks to disprove or establish as grounds for the entry of summary judgment. Nevertheless, for the purpose of this case, we will include the depositions of the defendant and his wife as a part of the record along with the pleadings and other matters contained in the transcript of the record.

Essentially this record shows that the plaintiff, a boy, fourteen years of age, entered the defendant’s display yard and “begun to rock a tall, heavy monument back and forth and after the monument began to rock it fell over upon the plaintiff” and injured him. The defendant contends that the plaintiff had reached an age of discretion where the attractive nuisance doctrine no longer applied to him, that the tombstone was not an attractive nuisance, and that the plaintiff was injured by casual negligence if there was any negligence at all. With reference to the age of discretion, he cites Shaw v. Chicago & A. R. Co., Mo., 184 S.W. 1151, 1154 [5], which holds that it would be a very exceptional state of facts which would render the doctrine of attractive nuisance applicable to a strong and intelligent girl, 15% years old. Also cited is Van Alst v. Kansas City, 239 Mo.App. 346, 186 S.W. 2d 762, in which a boy, fourteen years of age, who dived into a pool in order to show his companions that he could swim and was drowned, was held to be contributorily negligent as a matter of law; but the same case holds that on the question of a minor’s contributory negligence, his mental capacity, regardless of age, must be considered and the question is usually for the jury. A review of the cases cited and others leads us to conclude that the age of the plaintiff and the other allegations of the petition are insufficient to justify a holding as a matter of law that the plaintiff is guilty of contributory negligence. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742, 748 [12], This is not to say that such a holding would not be justified at the trial after there is an opportunity to examine and cross-examine the witnesses and develop the relevant facts and circumstances. Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, 883 [2],

The plaintiff claims that his petition states a cause of action under Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, on the attractive nuisance doctrine. On this we express no opinion because it is unnecessary to do so. But the petition does allege that by reason of the construction of the tombstones and the manner in which they are displayed they were “unsteady and easily rocked and swayed and tilted back and forth” and that children for several years prior to the happening were attracted to the monument display and rocked, swayed and tilted them — all with the defendant’s knowledge. Whether this can be supported by substantial proof is another question. But on the record before us, the defendant has not demonstrated by “unassailable proof” that he is entitled to be declared free of all negligence as a matter of law. Civil Rule 74.04 (h), V.A.M.R.

Our holding is that on the record before us this is not a proper case for rendering a final judgment on a motion for summary judgment. In view of this decision, it is not necessary to pass on other questions presented by the plaintiff other than his contention that the trial court should have entered judgment in his favor on the issue of defendant’s negligence because the defendant’s motion admitted the allegations of the plaintiff’s petition and that the issue of damages should be remanded for a jury trial.

The defendant asserts that the relief cannot be granted because the petition fails to state a claim and the pleadings present issues of fact. The trial court did not rule the sufficiency of the petition and there is no occasion for us to do so. The two procedures have different attributes. Because it likewise does not appear by unassailable proof that the defendant is guilty of negligence and that the plaintiff is free of contributory negligence, we cannot assess that issue on the ■ motion for summary judgment.

Accordingly the judgment is reversed and the cause remanded.

All of the Judges concur.


author: HYDE, Judge.

text:
    Arthur C. BAUE and David Baue, Appellants, v. EMBALMERS FEDERAL LABOR UNION NO. 21301 AFL-CIO, an unincorporated labor organization, et al., Respondents.
    No. 49789.
    Supreme Court of Missouri, Bn Banc.
    March 9, 1964.

      Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, John R. Stockham, Stockham & Breckenridge, St. Louis, for appellants.
    J. F. Souders, Gruenberg, Schobel & Souders, St. Louis, for respondents.
    Henry Andrae, Jefferson City, Hendren & Andrae, Jefferson City, of counsel, for National Selected Morticians, a not for profit association, amicus curiae.
    Edward D. Summers, Jefferson City, for Missouri Funeral Directors & Embalmers Ass’n, Inc., amicus curiae.
   HYDE, Judge.

This case, first heard in Division No. One, was transferred to Banc without an opinion being adopted. However, an opinion prepared in Division stated the following facts which we adopt in substance without quotation marks.

Arthur C. and David Baue, as copartners, sued to enjoin the picketing of their funeral home in St. Charles by Embalmers Federal Labor Union No. 21301 AFI^CIO, an unincorporated labor organization, and certain named members thereof as fairly and adequately representing the class consisting of that union’s membership.

After a preliminary hearing, the trial chancellor denied the Baues a temporary order enjoining the picketing and, after a change of judge and a further hearing for a permanent order, the new trial chancellor again denied the injunctive relief sought. The Baues have appealed from the ensuing judgment.

It is not contended that interstate commerce is sufficiently involved or affected by appellants’ business to deprive the courts of this state of jurisdiction of the dispute; and inasmuch as the appellants have preserved points involving the construction of specified portions of the Constitutions of the United States and the State of Missouri, this court has jurisdiction of the appeal.

John Clay Smith, then a resident of Arkansas, was employed for an indefinite term as a licensed embalmer on January 3, 1961, by the Arthur C. Baue Funeral Home, a corporation (incorporated in 1952 or 1953), all of the stock of which was held by Arthur C. Baue, his wife, and his son, David. Smith continued in that employment until his discharge on April 20, 1962. The Baues claimed they had conducted their St. Charles funeral home as a partnership since March 28, 1962, although the corporation which formerly operated that business was never dissolved and in fact continued to operate a funeral home in a nearby town. A few days after Smith’s discharge the union began picketing their St. Charles establishment.

From time to time during the period of Smith’s employment (approximately a year and four months), he and the Baues had discussed the matter of the possibility of his being interested in or joining an embalmers union and the Baues had indicated their firm opposition to such a move, making clear their view that if Smith joined the union he would be unable to continue in their employ because they, Arthur and David, were also licensed embalmers and did part of the embalming work at their St. Charles funeral home and a union contract would prohibit their continuing to do that work. During those conversations Smith indicated his lack of interest in joining a union and made certain statements clearly suggesting his opposition to union membership under the circumstances.

Nevertheless, during the first week of April 1962 (all dates hereinafter mentioned are in 1962), Smith contacted the union’s president, Mr. Van Fossan, and indicated that he wanted that union to be his sole agent for collective bargaining with his employer. The union, whose total membership at trial time was eighty, agreed to try to help him. As a result, Van Fossan sent to Smith for signature an “authorization for representation” designating the union as his “sole and exclusive representative for the purposes of collective bargaining, to negotiate and execute an agreement on my behalf with my said employer covering my wages, hours and all other conditions of employment.” Smith signed that paper on April 9 and returned it. On April 13 the attorney for the union directed a letter to “Arthur C. Baue Funeral Home, Inc.” (received on April 14), advising of the fact that the union represented the embalmer employees of the corporation and demanding recognition of the union as bargaining agent for such employees and requesting a meeting on April 17 “for the purpose of negotiating a labor agreement for such unit.” The meeting was held April 20.

Upon receipt of that letter the Baues, either Arthur or David or both, talked with Smith inquiring specifically whether, and Smith denied that, the union had talked with him or had contacted him in any way. Although Smith explained at the trial that he had contacted the union and that he was not asked whether he had, it is entirely clear that Smith did not disclose that he had designated the union as his bargaining representative, even though that information was reasonably called for by the questions asked by his employer. He explained, “I was afraid of being frank and candid because I was afraid of my job.”

Smith further testified that on April 14, after they had received the letter from the union, the Baues again admonished him to have nothing to do with the union and suggested that they wanted to enter into a partnership agreement with him and one Ermeling so he would be part of management, and suggested further that he was to deny to anyone who inquired that he did any embalming; that on April 16 a partnership agreement was presented but Smith did not sign it saying he wanted to discuss it with his Arkansas atttorney; that Mr. Arthur Baue suggested that they might want Smith to leave town for a few days to avoid talking with union representatives and later that day told Smith to forget about the partnership agreement. On the 19th it was agreed that Smith could go home (to Arkansas) over Easter and Arthur suggested he stay there until they called him, but before leaving they wanted a letter of resignation back dated to April 7 so that his employers could show the union that he (Smith) was not an employee. Admittedly, Arthur Baue wrote such a letter on April 19, dated it twelve days prior thereto, i. e., April 7, and asked Smith to copy it and mail it or give it to them.

On April 19, the Baues also submitted to Smith a supplementary limited partnership agreement and stated that the suggested letter of resignation would not affect the partnership agreement and that in any event Smith would continue to receive his salary. Arthur Baue testified that at the time they submitted the second limited partnership agreement they also furnished Smith with a copy of the partnership agreement which Arthur and David claimed to have executed on March 28, 1962; and Mr. Baue testified further that he intended to use the back-dated letter purporting to show Smith’s resignation on the 7th in order to show the union that they did not have an embalmer employee. Smith did not sign the letter nor the partnership agreement. He took them with him to Arkansas but, in the meantime, informed Van Fossan of the proffered agreement and the suggested back-dated letter of resignation. Smith went to Arkansas on the 19th and, on the 20th, union representatives called on the Baues. The Baues demanded to know by what authority the union men were there, whereupon Van Fossan furnished a copy of the authorization which theretofore had been executed by Smith. The union representatives then presented the standard contract which it sought to have executed by the operators of funeral homes conducting in excess of 85 funerals a year (the Baues did 130 funerals in the preceding year), and that document was discussed, The Baues were familiar with it because a similar contract had been presented to them five years previously but had not been signed.

After some discussion, including the point that under the contract neither Arthur nor David could do embalming so long as they remained as owners, the Baues suggested they needed further time to consider the matter. The union acquiesced and it was specifically agreed that another meeting would be held at the funeral home on April 25 for further negotiations.

The following Monday, April 23, Smith returned to the funeral home where 'he was handed the following letter:

“Dear Mr. Smith:

“Since we have not received the letter of resignation from you, which you advised us on April 19, 1962 you would send us on April 20, we wish to advise you that your employment by Arthur C. Baue and David C. Baue is considered terminated by us as of April 20, 1962.

Very truly yours,

s/ Arthur C. Baue

s/ David C. Baue”

Although the foregoing states unequivocally that the reason for the discharge was the fact that Smith had failed to send the back-dated letter of resignation, the Baues testified that the reason stated was not the sole cause for Smith’s discharge; that another was that he had not been truthful and candid with them in that he had failed to disclose the facts but, on the contrary, had deceived them concerning his contacts with the union.

Smith informed Van Fossan of the letter of discharge, whereupon the union directed and its attorney wrote the following letter to Arthur C. Baue Funeral Home, dated April 24th:

“Local 21301, Embalmers Federal Labor Union, AFL-CIO protests your unfair action in discharging from your employment embalmer John Clay Smith.

“We ask that you set a time, date and place for a meeting to discuss settlement of this issue. Local 21301 intends to use the legal and economic measures available, including picketing, to obtain a remedy of the said unfair action.”

On April 25 the union established a picket line at the funeral home consisting (at least shortly after its installation) of one picket at a time carrying a sign which said:

“NOTICE TO THE PUBLIC ARTHUR C. BAUE FUNERAL HOME UNFAIR TO EMBALMERS F. L. UNION 21301 AFL-CIO”

There is no contention that the picketing has not been peaceful and there was no evidence of any misconduct on the part of .any picket

Mr. Van Fossan, the union’s president, insisted at both hearings that the sole reason for the picketing was, as the letter stated, to protest the unfair discharge of Smith, who was fired while the union was in the process of attempting to negotiate a contract for him. Appellants adduced evidence indicating some adverse effect of the picketing upon their business, particularly by reason of what they perceived to be the opinion of the public with respect to a picket line at a funeral home. Other material facts will be hereinafter stated.

We have held in the suit brought by Smith, heard with this case by the trial court under an agreement that all the evidence would apply to both cases, (Smith v. Arthur C. Baue Funeral Home et al., Mo., 370 S.W.2d 249, 254) that the right of an employer to terminate, at any time and for any reason, an employment without definite term, was modified to this extent: “[A]n employer may not discharge an employee for asserting the constitutional right thereby given him to choose collective bargaining representatives to bargain for him concerning his employment.” We further held: “[P]laintiff’s discharge, if it was for that reason (and plaintiff had substantial evidence to show that it was), was a wrongful discharge for which he could maintain an action for damages.” Defendants contend their picketing was solely to protest Smith’s discharge and to exercise their right of free speech to inform the public about it, relying on the First and Fourteenth Amendment to the Constitution of the United States and Sec. 8, Art. I, of the Constitution of Missouri, V.A.M.S., citing such cases as Ex parte Hunn, 357 Mo. 256, 207 S.W.2d 468; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery and Pastry Drivers and Helpers, I. B. T. v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178. Under these decisions, picketing solely for this purpose would be lawful. However, plaintiffs claim the real purpose of the picketing was to obtain a labor contract which would prevent them from doing embalming in their own establishment and require them to employ a member of defendants’ union as an embalmer who would do no other work than embalming. Plaintiffs say “this contract would violate public policy in Missouri under the Constitution of the United States in its Fifth and Fourteenth Amendments, as depriving them of property without due process of law, and of the Constitution of Missouri, Article I, Sections 2 and 10, guaranteeing Appellants the right to the enjoyment of the gains of their own industry and providing that they be not deprived of property without due process of law, as construed in Hughes v. Kansas City Motion Picture [Mach.] Operators Union, 282 Mo. 304, 221 S.W. 95; Heath v. Motion Picture Machine Operators Union, [365] Mo. [934], 290 S.W.2d 152, and Kerkemeyer v. Midkiff, Mo., 299 S.W.2d 409.” The* point out that we have held that picketing which is for both lawful and unlawful purposes is unlawful, citing Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 735, 174 A.L.R. 585; Kincaid-Webber Motor Co. v. Quinn, 362 Mo. 375, 241 S.W.2d 886; Katz Drug Co. v. Kavner, Mo.Sup., 249 S.W.2d 166, (see also A.L.I. Restatement of Torts, Sec. 796); citing also on the proposition that the State may determine and enforce its own public policy, in intrastate commerce, as to what is unlawful picketing, International Brotherhood of Teamsters et al. v. Hanke et al., 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, 13 A.L.R.2d 631; International Brotherhood of Teamsters et al. v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347; Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hughes v. Superior Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492; Tallman Company v. Latal, 365 Mo. 552, 284 S.W.2d 547. The facts of this case are that the picketing followed a demand that plaintiffs execute a contract with the union which would prohibit them from doing any embalming in the operation of their business in which they had been doing most of it. Smith was not a member of the union and apparently would become a member only if plaintiffs made this contract with the union.

Defendants, in making their demands, relied on Pfitzinger Mortuary v. Dill, Mo.Sup., 319 S.W.2d 575. However, the plaintiff in that case was a corporation which had for some time employed a union embalmer under a contract which allowed the owner of a majority of stock to embalm but which the union would not renew. While it appeared Mr. Pfitzinger owned 75% of the stock, the ownership of the rest was not shown nor was it shown how much embalming he did nor what financial effect such a contract would have on his business. Here plaintiffs, operating as a partnership, had substantial evidence that the effect of preventing them from doing any embalming would so increase their costs as to cause great loss of business, cause them to give up their ambulance service, and price them out of competition with the two other funeral homes in the city, each of which had less than 85 funerals annually and were not being asked to sign a contract with the union. David Baue said owner’s work “includes everything that is done around a funeral home, all the way from sweeping the front walk to directing a funeral and embalming bodies and taking them to the cemetery * * * partly handling the books * * * dealing with customers * * handling public relations.” He said low cost ambulance service was important in public relations.

Our view from all the evidence is that the demand for a contract preventing plaintiffs from doing any embalming in their own establishment cannot be separated from the purpose of the picketing. The union president testified that this provision was not negotiable and that the purpose of the visit was to obtain such a contract with plaintiffs. At the first hearing he answered “yes” to the inquiry that “the only thing that stopped your attempt to get the Baues to sign this contract was the fact that they discharged Smith?” He also testified: “Q If the Baues would reemploy Mr. Smith, your Union would seek to have them sign such a contract, wouldn’t you? A Yes; the contract is universal.” At the trial, he further testified: “Q Mr. Van Fossan, are you prepared to say here and now that if the matter of Smith’s employment — or reemployment, without a contract with your Union, could be worked out to his satisfaction, that you would be willing to continue to negotiate indefinitely with the Baues and never call a strike because they wouldn’t sign a contract with that provision in it? A I wouldn’t say. Q You wouldn’t say that in a million years? A I would not say it, no. I have a Board to answer to, also.” Thus it appears that the union purpose was and continued to be to obtain a contract requiring plaintiffs personally to stop embalming and to employ union embalmers exclusively for embalming and that the discharge of Smith only was the occasion for the picketing and not the sole reason for it. Any other view seems completely unrealistic in the light of all the evidence. We consider this purpose to be in conflict with the policy of this state as stated in the Hughes, Heath and Kerke-meyer cases. As stated in the latter case (299 S.W.2d 1. c. 415), “We can conceive of no surer way of eliminating the small independent business man from the economic scene than to compel him to stop working with his own hands in his own business.” It is against the policy of this state to do that.

However, defendants contend plaintiffs are not entitled to equitable relief because they have not come into equity with clean hands. Defendants base this on the discharge of Smith which they claim was a wrongful act, done because he exercised his constitutional right to make the union his bargaining agent. They further say: “Attempts were made by plaintiffs to secure a fraudulent ‘resignation’ letter from Smith for the purpose of deceiving the defendant union of the true state of facts. Plaintiffs further concealed from the defendant union the status of the corporation until after this litigation commenced.” As to the reason for Smith’s discharge, we said in his case that this was a jury issue (370 S.W.2d 1. c. 254) to be decided on retrial. If it is found to be wrongful he will have a remedy in damages so we will not make any final determination of that issue here. Plaintiffs’ conduct in seeking a back-dated resignation from Smith, done for deception as to the true situation, of course was most improper but there was no attempt to make such deception the basis of their suit as in Saito v. Waiters and Waitresses Union, 4 LRRM 837. Other cases cited by defendants, Sitkin v. International Fur Workers Union, Local 87, 5 LRRM 963, and Devon Knitwear Co., Inc. v. Levinson, 173 Misc. 779, 19 N.Y.S.2d 102, denied relief because of refusal to bargain collectively by plaintiffs under legal obligation to do so. Nevertheless defendants’ knowledge of this attempt to deceive made them not unreasonably suspicious of other statements of plaintiffs and their claim to be a partnership. Thus it had some effect in bringing about picketing.

It was stated in the oral argument before the Court en Banc that there probably would not have been any picketing if defendants then had known the business was a partnership. However, Smith had talked to the union president about the partnership agreement offered him by plaintiffs and had been told by him that “if he became a partner then that would eliminate him from becoming a union embalmer.” Moreover, when Smith returned from Arkansas on Monday, April 22, he gave the union president the partnership agreement he had taken with him, all of this being some notice of a partnership. Furthermore, on May 4, at the beginning of the hearing for a temporary injunction, the union’s attorneys representing Smith amended his answer to state that “Arthur C. Baue and David Baue comprise a co-partnership engaged in the business of operating a funeral business under the name of Arthur C. Baue Funeral Home at 620 Jefferson Street, St. Charles, Missouri” and made them both parties. This status was admitted in plaintiffs’ pleadings in that case and stated in their petition in this case; and the court found at the trial, in June, that “Arthur C. Baue and David Baue are co-partners engaged since on or about March 28, 1962, in the operation of a funeral establishment under the name of Arthur C. Baue Funeral Home in the City of St. Charles.” However, even after acknowledgment and determination of this status of the business, the union continued its picketing.

The clean hands maxim “must still be taken with reasonable limitations,” Pomeroy’s Equity Jurisprudence, 5th Ed., Sec. 399, see discussion in Secs. 400-404; see also 19 Am.Jur. 323-332, Equity Secs. 469-479; 30 C.J.S. Equity §§ 93-99, pp. 475-498. As stated, 30 C.J.S. Equity § 95, p. 488: “[Ejquity will consider the conduct of the adversary, the requirements of public policy, and the relation of the misconduct to the subject matter of the suit and to defendant.” Because of plaintiffs’ conduct, hereinabove discussed, we consider the court properly denied the temporary injunction sought, and our view is that in this proceeding plaintiffs should be denied damages claimed to have been caused by the picketing. Nevertheless, when the status of plaintiffs as a partnership was settled by the court, which is not now contested, our view is that an unlawful purpose for the picketing was obvious and should be declared. Therefore, we will treat plaintiffs’ petition as one for declaratory judgment, sufficient facts being stated for that purpose, and leave to the trial court the determination of whether injunctive relief is now required.

The judgment is reversed and remanded with directions to enter judgment declaring that defendants’ picketing was for an unlawful purpose and to grant injunctive relief if the picketing involved is continued.

All concur.


author: COIL, Commissioner.

text:
    Rebecca Gilbert KUNDERT et al., Appellants, v. Ray POWELL, Donald Gretzinger, Mildred Mozelle Gretzinger, and Gilbert L. Weidman, Respondents.
    No. 50183.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Earl Youree, Wagner, Okl., Robert L. Spurrier, Butler, for appellants.
    William J. Cason, Harold L. Caskey, Clinton, for respondents Donald Gretzinger and Mildred Mozelle Gretzinger.
    Belisle & McNabb, H. H. McNabb, Jr., Butler, for respondents Ray Powell and Gilbert Weidman.
   COIL, Commissioner.

Appellants (plaintiffs below) filed their second amended petition to quiet title to certain real estate in Bates County. Respondents (defendants below) filed motions (two) to dismiss the petition for the reason that it “fails to state a cause of action.” The court sustained those motions and plaintiffs appealed from the judgment of dismissal.

Plaintiffs averred that they and defendant Weidman were the children or grandchildren of brothers and sisters of one Riley Gilbert, deceased; that they and defendant Weidman, as all the collateral heirs of Riley Gilbert, deceased, are the owners in fee simple of the described real estate; that Riley Gilbert died testate October 31, 1936; that item Third of his will was:

“Third: I devise and bequeath to my said wife, if she survives me, the following described real estate in Bates County, Missouri, to have and to hold during her natural life, only, to-wit:

“Among other lands, all of Lots 1 and 2 of the Northeast Quarter and the Northwest Quarter of the Southeast Quarter of Section 2, Township 41, Range 29,

with the remainder therein to my said daughter and the heirs of her body.”

It was averred further that testator’s widow elected to take a child’s part and thereafter brought a partition action which resulted in allotting to “Elsie F. Powell, for life with remainder to pass according to the terms of the Will of Riley Gilbert, deceased,” the same land described in item Third of the will; that Elsie F. Powell (who by implication and by concession of all the parties hereto was testator’s daughter) died in 1957 “childless, without issue, leaving no heirs of her body”; that by virtue of the fact that the reversionary interest in the land described in item Third of Riley Gilbert’s will was not devised by any provision of that will, Riley Gilbert died intestate as to said reversionary interest and that such vested in plaintiffs and defendant Weidman; that defendants Powell and Donald and Mildred Gretzinger claim some interest, adverse to plaintiffs, in the described land, the nature of which is unknown. The prayer was conventional and asked the court to determine the rights, title and interest of the parties, plaintiffs and defendants', and to adjudge plaintiffs and Gilbert Weidman the owners in fee simple.

Defendants in support of the trial court’s judgment of dismissal -first point out that the petition failed to include, by reference or otherwise, Riley Gilbert’s entire will, but set forth only-item Third and plaintiffs’ conclusory averment that the reversion in the land in question was not disposed of by the will. But this quiet title action was not’based upon a written instrument ¡as such1 and the rule defendants rely on, thát'-when a’claim1 is,-founded-upon''a written instrument, such must be pleaded according to its legal effect, recited at length or a copy attached as an exhibit, is not applicable. Plaintiffs’ averment, even if a conclusion, was sufficient in this action-as against a motion to dismiss and was-subject to proof by the production of the will at the trial.

The meritorious question, as we see it, is whether, as defendants contend, the aver-ments of plaintiffs’ petition affirmatively show as a matter of law that plaintiffs cannot have any interest in the land in question. ■

All the parties agree that item Third of Riley Gilbert’s will did not dispose of the fee simple title to the land there described and that the reversion remained in the testator to be devised by his will or to pass to his heirs by intestate succession. Defendants’ position is that if, as the petition aver.s, Riley Gilbert died intestate as to the reversion, then it must follow that such descended to Riley Gilbert’s daughter as his sole heir at law who, say defendants, under the provisions of the applicable descent and distribution statute, took to the exclusion of all collateral heirs; that inasmuch as plaintiffs claim the reversionary interest by intestate succession as the collateral heirs of Riley Gilbert, their petition demonstrates that they have no interest in the described land.

It is apparent that plaintiffs’ petition either pleads too much or not enough; it is overall indefinite and incomplete, but unless it necessarily and as a matter of law demonstrates that in 'all events plaintiffs-are barred from claiming any interest in the' property- in question, we are of the opinion that this type of case should proceed to trial, and that the court below shoüld determine, on the evidence adduced,, .the- title as among the parties to the proceedings.

Plaintiffs’ petition :does not state whether Elsie F. ’Powell, who.died August '30,; 1957,>'wa-s'.-,testatibr,’s' adopted .daughter and remained single or whether she was his natural daughter who had married and, if the latter, whether a spouse survived her. Nor does it state whether Elsie died testate or intestate. Likewise, plaintiffs’ petition does not disclose whether testator’s widow, Mrs. Riley Gilbert, who survived him, predeceased or survived her daughter, Elsie F. Powell. Despite those omissions and uncertainties, if the evidence at a trial of the issues showed that Elsie F. Powell died intestate and left no heirs of her body and that no spouse or mother survived her, then and in those events, plaintiffs may have stated a claim as the collateral heirs of Riley Gilbert to the reversionary interest which passed to the heirs of his daughter by intestate succession. That is because under the terms and provisions of item Third of her father’s will, Elsie F. Powell received a life estate in the land in question (§ 3108, RSMo 1929, Section 442.470 RSMo 1959 and V.A.M.S.) and the reversion (assuming that, as alleged, testator did not •dispose of it by his will) passed by intestate .succession from testator upon Elsie’s death without heirs of her body. See Pixlee v. Petty, Mo., 274 S.W.2d 257, 259 [4, 5]; Mattingly v. Washburn, 355 Mo. 471, 196 S.W.2d 624, 626 [1, 2]. Inasmuch as Elsie may have died intestate and without spouse ■or mother surviving her and without heirs ,of her body, her heirs may have been the collateral heirs of her father, Riley M. Gilbert. Section 474.010 RSMo 1959 and V.A.M.S.

We have not in the foregoing decided or attempted to decide any issue which may arise at a trial of this case under the ■evidence which may be adduced. We have intended only to indicate that plaintiffs bave not by the allegations of their petition ■so clearly or completely barred themselves from claiming any interest in the property in question as to entitle defendants to what, ■in certain respects, is, in effect, a judgment for them on the pleadings which consisted .of only plaintiffs’ petition. See Baker v. Lamar, Mo., 140 S.W.2d 31, 34.

The judgment is reversed and the case remanded for further proceedings.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.