text:
    Samuel L. SELTZER, Trustee, etc., Respondent, v. Catherine SCHROEDER et al., Appellants.
    No. 24485.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Ronald Reed, Jr., Ronald Reed, Reed & Reed, St. Joseph, for appellants Leon T. Ashton and Mary Cowles Moore.
    James Turner, Edward P. Speiser, Turner & Speiser, St. Joseph, for appellant Anna L. Montgomery.
    Robert E. Douglas, St. Joseph, (Brown, Douglas & Brown, St. Joseph, of counsel), for respondent.
   BLAIR, Judge.

This is an action for a declaratory judgment filed by Samuel L. Seltzer, as trustee under a trust agreement, invoking the equity power of the Circuit Court of Buchanan County to declare his authority and duty as trustee by adjudging the distribution he should make of funds held by him pursuant to the trust agreement and funds to come into his possession as trustee under that agreement in the future. The record does not affirmatively disclose that the amount in dispute, independent of all contingencies, is in excess of $15,000.00 and we may not indulge in speculation or conjecture that it does exceed that amount, for a mere chance that it may does not oust our jurisdiction and vest jurisdiction in the Supreme Court. We have jurisdiction. Sec. 477.040, V.A.M.S.; Jackson County Public Water Supply Dist. No. 1 v. Ong Aircraft Corp., Mo., 388 S.W.2d 893; Warmack v. Crawford, Mo., 192 S.W.2d 406; McCaskey v. Duffley, 335 Mo. 383, 73 S.W. 2d 188; 8 Mo.Digest, Courts,

As we view this controversy, there is no need to summarize the pleadings. A recital of the facts we deem relevant and rulings on the contentions of the parties will present the questions on this appeal adequately. Anna K. Craig died in 1948 in Chicago, Illinois. By her last will and testament she made eight specific bequests of personalty, each to a different person. By the residuary clause of her will she bequeathed and devised “all of the rest, residue and remainder of my estate, of every kind or nature whatsoever, wheresoever situated,” * * * “unto James Mattalina, of Chicago, Illinois, his heirs and assigns forever, in appreciation for the many years of faithful services and the many kindnesses extended to me by him.” James Mattalina was her chauffeur and by this residuary clause he was given the bulk of her estate consisting of substantial personal property and a large number of tracts of real estate in Illinois, Missouri, Kansas, Texas and Oklahoma. Anna Niemer and Guy Barr, as heirs at law of Anna Craig, commenced a suit in Chicago, Illinois, to set aside the will of Anna K. Craig.

On December 18, 1948, Anna Niemer, Guy Barr and James Mattalina entered into a “Settlement Contract” in order “to settle, compound and compromise said suit and to agree upon a distribution of the net assets of the estate of Anna Craig.” By the terms of this settlement contract it was agreed that the personal property of Anna K. Craig should be reduced to cash and after payment of specific legacies, taxes, administrative costs and other expenses, the remainder was to be divided into two shares. Anna Niemer and Guy Barr received one-half of the remainder plus $3,000.00 as their share and James Matta-lina received what then remained as his share. The settlement contract further provided that James Mattalina would convey in trust to Samuel L. Seltzer, as Trustee, “all of the real estate owned by Anna Craig at the date of her death and devised to James Mattalina” by the residuary clause of her last will and testament. All of the real estate owned by her at the date of her death had been devised by her residuary clause to James Mattalina and thus all of her real estate was to be placed in the trust. The life of the trust was to be three years. During the life of the trust the trustee was to be given authority to “collect the rents, issues and profits” from the real estate and to lease it or to sell any parcel of it with the consent of the beneficiaries and at the expiration of the trust he was required to sell all of the real estate then remaining after due notice in writing to the beneficiaries. During the life of the trust, and after its expiration, the trustee was to distribute the “proceeds and avails” of the trust, “whether of income or principal”, to the beneficiaries in the following proportions: James Mattalina, %ths; Arthur Abraham (his attorney), ⅜⅛; Anna Niemer, ¼⅛ and Guy Barr, V4Ü1. It was agreed that the suit contesting the will of Anna Craig would be dismissed upon the execution of the trust agreement by James Mattalina.

On December 20, 1948, just two days after the execution of the settlement contract, James Mattalina by several deeds conveyed to Samuel L. Seltzer, as Trustee, all of the real estate of Anna Craig as required by the settlement contract. The trust agreement prescribed by the settlement contract was executed on that same day in accordance with its terms. In the outset the trust agreement recited that it was executed pursuant to the terms and conditions of the settlement contract which “settles and determines the issues raised” by the suit which had been brought to contest the will of Anna Craig. Later in Article Sixth the trust agreement declared that the trust was being created by the donor in compliance with the terms of the settlement contract previously referred to in the outset-of the trust agreement and that the trust was created for the express purpose of bringing about an orderly liquidation of the real estate conveyed by Mat-talina to Seltzer in trust and a division of the “proceeds and avails” of such real estate according to the terms of the settlement contract. ■ It was provided that no beneficiary of the trust had any right or title to any part of the real estate but only an interest in the earnings, avails and proceeds of the trust. The rights of the beneficiaries were to “be deemed to be personal property and assigned and transferred as such”. There was also a provision that in the event of the death of any of the beneficiaries his or her share should be paid to “his or her executor, administrator or assigns.”

Subsequently on April 19, 1951, an amendment to the trust agreement was executed by all of the interested parties. After reaffirming the original settlement contract and reciting that the trust agreement had been entered into pursuant to its terms and conditions, the amendment substantially reiterated the terms of the trust agreement, provided for an extension of the life of the trust and declared: “In the event of the death of any of said persons herein named as beneficiaries, that share to which such deceased beneficiary would have been entitled, had he or she survived, shall be distributed by the Trustee to such person or persons as such deceased beneficiary shall by his or her Last Will and Testament in writing appoint, and in default of such appointment, to those persons who are entitled to the personal estate of such deceased beneficiary under the statutes of descent in force and effect in that state of which such deceased beneficiary was a resident at the time of his or her death.”

By the express terms of both the trust agreement and its amendment all beneficiaries were given the right to “sell, assign and transfer his or her interest” in the trust. The only limitation on this right was one for the protection of the trustee. It was required that the instrument of sale, assignment and transfer be “in a form satisfactory to the trustee” and that it should not be effective or binding upon the trustee until the original instrument, with the signature properly identified and guaranteed, was furnished to the trustee, together with the name and address of the purchaser.

Prior to the execution of the settlement contract and the trust agreement the will of Anna Niemer merely provided that in the event of her death before the death of Anna Craig, “I hereby give, devise and bequeath to Frederick Schroeder and Cecile Schroeder, his wife, or if either of them should predecease me, then to the survivor, any property that may be coming to me through the will of Anna Craig” and stated that it was her desire that any property coming to her or her estate through the will of Anna Craig should go to Frederick and Cecile Schroeder. After the execution of the settlement contract and trust agreement Anna Niemer rewrote her will five times, in May, 1949, March, 1952, April, 1956, December, 1957 and May 1958. The will of May 1958 was her last will and testament. In each of these wills her residuary clause was identical: “I give, devise and bequeath all of the rest, residue and remainder of my estate to Frederick Schroeder and Cecile Schroeder, his wife, or if either of them should predecease me, then to the survivor. Such residue and remainder of my estate shall include, although it is not limited to, any property that may be coming to me or my heirs, or such persons as may be named in my will, from Anna K. Craig, of Chicago, Illinois, or her estate, or under the terms of her will, and which may not have been paid to or received by me at the time of my death. It is my desire that whatever real or personal property would go to me or my estate or my legatees through or under the will of Anna K. Craig, go to Frederick Schroeder and Cecile Schroeder as aforesaid.” Cecile Schroeder predeceased Anna Niemer. Anna Niemer died on February 1, 1961, a resident of St. Joseph, Missouri, predeceasing Frederick Schroeder who is now dead. Catherine Schroeder, his daughter, is his surviving beneficiary.

The funds involved in this action are those which have come into the hands of the trustee and those which may come into his hands in the future under the trust agreement and its amendment and which would have been payable to Anna Niemer as they came into his hands if she had continued to live. The principal question in this controversy is whether Anna Niemer by her last will exercised the power of appointment provided for by the amendment to the trust agreement or failed to do so. The trial court declared and adjudged that she did exercise that power of appointment by her last will and that Catherine Schroeder is entitled to such funds as the surviving beneficiary of Frederick Schroeder. The trial court also found that Anna Nie-mer was survived by Leon T. Ashton, Mary Cowles Moore, Guy E. Chestnut, Jr., “second cousins once removed”, and Anna Lee Montgomery, “a second cousin”, and that if Anna Niemer had failed to exercise her power of appointment, these cousins would have been entitled to receive the proceeds of the trust. There is no question on this appeal that these cousins are entitled to the trust funds involved if Anna Niemer failed to exercise her power of appointment. The record shows that Guy E. Chestnut, Jr. had assigned whatever interest he might have in the funds to Leon T. Ashton. This accounts for the absence of Guy E. Chestnut, Jr. from this appeal which is brought by Leon T. Ash-ton, individually and as assignee of Guy E. Chestnut, Jr., Mary Cowles Moore and Anna L. Montgomery.

There can be no question that this action for declaratory judgment is an appropriate one to accomplish an adjudication of this controversy. Star-Times Publishing Co. v. Buder, Mo., 245 S.W.2d 59, 63. This case is to be tried by this court de novo and we must reach our own conclusions. Ash Grove Lime & Portland Cement Co. v. White, 361 Mo. 1111, 238 S.W.2d 368; Govro v. Beyer, Mo.App., 385 S.W.2d 367. Since we discern no dispute between the parties concerning the facts we have recited, and they suggest none, our question becomes merely one of law. Quite correctly the parties are in agreement that an execution of a power will be held to have been intended by a will which (1) refers to the power itself or (2) makes a reference to the subject of the power or (3) where the will itself is one that cannot operate except as an execution of the power. Collier’s Will, 40 Mo. 287, 328; Owen v. Switzer, 51 Mo. 322, 330; Owen v. Ellis et al., 64 Mo. 77, 82; Papin v. Piednoir, 205 Mo. 521, 104 S.W. 63, 67; 41 Am.Jur., Powers, Sec. 45, p. 836; 72 C.J.S. Powers § 40, pages 442-444; Thompson on Real Property, 1961, Replacement, Vol. 4A, Sec. 2,028, p. 703.

Did the will of Anna Niemer effectually exercise the power of appointment created by the amended trust agreement as the trial court found or did it fail to do so as appellants argue? We need not concern ourselves with determining whether the will meets all of the three criteria set forth above as individually constituting the exercise of a power of appointment, for if the will meets any one of those criteria, Anna Niemer exercised her power of appointment.

The burden to establish that Anna Niemer executed her power of appointment by her will rests on Catherine Schroeder who is claiming it was executed. 72 C.J.S. Powers § 40, p. 451. Appellants contend that the trust agreement and its amendment conferring the power of appointment and the will of Anna Niemer are all clear and unambiguous and we must look to these documents alone, and nothing else, to determine whether Anna Niemer executed her power of appointment. We notice that appellants refer to the settlement contract we have described as being dated June 30, 1947. We discover no settlement contract of that date in the record. The only settlement contract we have discovered and which entered the evidence is the one we have summarized which was dated December 18, 1948, two days before the execution of the original trust agreement. The record discloses that Anna K. Craig did not die until 1948 and obviously there was nothing concerning her estate to be settled before that year. We therefore assume that the date employed by appellants is a mistaken one. We agree with appellants that the trust agreement and its amendment are clear and unambiguous and require no construction. On the other hand, we disagree with their contention that the provision of the will of Anna Nie-mer which is in question is clear and unambiguous. We believe it is ambiguous, as we will presently develop, and that its construction requires us to consider extrinsic evidence.

In determining whether a power of appointment has been executed by will the admission and consideration of extrinsic circumstances and facts is governed by the general rules applicable to the admissibility of evidence in the construction of wills. 72 C.J.S. Powers § 40, pages 451-452. Sec. 474.430, V.A.M.S. requires that all courts “shall have due regard to the directions of the will, and the true intent and meaning of the testator”. In determining the true intent and meaning of testators, courts first must look to the will, but if the language- of the will is determined to be ambiguous they are authorized to look to surrounding facts and circumstances. Lang v. Estorge, Mo., 242 S.W.2d 50, 53. The language of Anna Niemer’s residuary clause which is claimed to be an exercise of her power of appointment, standing alone, is not ambiguous. It clearly provides that she gives, devises and bequeaths “any property that may be coming to me” * * * “from Anna K. Craig, of Chicago, Illinois, or her estate, or under the terms of her will, and which may not have been paid or received by me at the time of my death.” On the other hand, we believe the intent and meaning of this provision becomes ambiguous when facts not disclosed by the terms of the will are considered. Anna Niemer technically had nothing coming to her from Anna K. Craig, of Chicago, Illinois, or her estate, or under the terms of her will, when she wrote the provision in question into her last will on May 6, 1958. Under the terms of the settlement contract of December 18, 1948, the contest of Anna K. Craig’s will was dismissed, the will was admitted to probate, the personal property, except for certain specific bequests to others, was divided among the contending parties, and James Mattalina, the residuary legatee and devisee who originally stood to inherit the bulk of Anna K. Craig’s personal property and all of her real estate, conveyed to Samuel L. Seltzer, as trustee, all of Anna K. Craig’s real estate in trust for James Mattalina, Arthur Abraham, Guy Barr and Anna Niemer, as beneficiaries, each with the right to a fixed proportion of the income and proceeds of the trust and each with the right to sell, assign and transfer his interest in the trust. We believe these circumstances create a latent ambiguity in the language employed by Anna Niemer in the provision of her will in question. In Schubel v. Bonacker, Mo., 331 S.W.2d 552, 556, a testator clearly bequeathed to named persons $10,000 in bank stock of the “Industrial Bank of St. Louis”. The court said “The meaning of this provision becomes doubtful, or ambiguous, only when facts not disclosed by the terms of the will are considered, namely, that the testator did not and never did own any stock in the Industrial Bank of St. Louis. In other words, there is a latent ambiguity in the language used.”

We acknowledge the general principle that extrinsic evidence is not admissible to vary, contradict or add to the terms of a will, or to show a different intention on the part of the testator than that disclosed by the language of the will. Yet extrinsic evidence is admissible to explain latent ambiguities in a will and to show the true intent and meaning of the language employed. “In every case the court is entitled to be placed in possession of all the information which is available of the circumstances of the estate and family of testator when he made his will, to the end that the court may be in his situation as nearly as may be, and may interpret and understand the will as he would if he were alive. * * * Where the ambiguity is latent, it is created by evidence of extrinsic facts, and the same evidence is admissible to remove it.” McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, 485; Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023, 1024; Annotation, 94 A.L.R. 46, 131, 163.

For example, in Schubel, supra, where the testator bequeathed $10,000 in bank stock in a named corporation and did not and never did own any stock in that corporation, the Supreme Court ruled that extrinsic evidence was admissible to remove the latent ambiguity in the language employed in the will. It said “It has expressly been held that where there is a latent ambiguity or inaccuracy in the description of the corporate stock, bonds or other securities, extrinsic evidence is admissible to identify the subject of the gift. Paulus v. Besch, 127 Mo.App. 255, 104 S.W. 1149; Waters v. Hatch, 181 Mo. 262, 79 S.W. 916; Annotation, 94 A.L.R., at pages 46-55; 95 C.J.S. Wills 641 c. * * * We think it is clear from the evidence that by the bequest of stock in the Industrial Bank of St. Louis, the testator had reference to and intended to bequeath the stock, then worth approximately $10,000, owned by him in Industrial Bancshares Corporation; that it was proper for respondent to show and establish this intent by extrinsic evidence; and that the ruling of the trial court in respect to this provision of the will was correct.” Likewise, where there is a latent ambiguity or inaccuracy in the description of real estate devised by a will, extrinsic evidence is admissible to create the ambiguity and to remove it by identifying the subject of the devise. Annotation, 94 A.L. R. 131 and Missouri cases there collected; Stuesse v. Stuesse, Mo., 377 S.W.2d 389, 391; Mudd v. Cunningham, Mo., 181 S.W. 386; McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, 485; Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023, 1024; Creasy et al. v. Alverson et al., 43 Mo. 13, 21. These last decisions demonstrate the rule in this state that a testator may sometimes devise lands that he does not own and that extrinsic evidence is admissible to create a latent ambiguity in his will and to remove it by showing that he owned other lands which he actually intended to devise. Under these rulings we hold that all of the evidence recited in this opinion is competent to create a latent ambiguity in the questioned provision of the will of Anna Niemer, and that it does so, and that such evidence is properly to be considered by us in determining whether it removes that ambiguity.

The authorities we have cited are not precisely parallel on the facts, but we are convinced that they do point the way. The first sentence of Anna Niemer’s residuary provision was a general residuary clause and was sufficient, without more, to bequeath and devise all of the residue of her property to Frederick and Cecile Schroeder or the survivor. It said “I give, devise and bequeath all of the rest, residue and remainder of my estate to Frederick Schroeder and Cecile Schroeder, his wife, or if either of them should predecease me, then to the survivor.” We agree with appellants that the general rule is that a power of appointment, in the absence of a statute, is not executed by a general residuary clause in the will of the donee. Annotations, 32 A.L.R. 1395; 91 A.L.R. 453. Conceding for the purpose of this case that the first sentence of Anna Niemer’s residuary provision, a general residuary clause, was not sufficient to exercise her power of appointment, Anna Niemer’s residuary provision did not stop with that language. The second sentence said “Such residue and remainder of my estate shall include, although it is not limited to, any property that may be coming to me or my heirs, or such persons as may be named in my will, from Anna K. Craig of Chicago, Illinois, or her estate, or under the terms of her will, and which may not have been paid to or received by me at the time of my death.”

Appellants say that Frederick Schroeder’s executor (Frederick Schroeder survived Anna Niemer but died before distribution was made to him under her will) received for Schroeder’s estate $7,769.03 plus certain old coins and jewels and then they argue that the second sentence of the residuary provision just quoted means nothing and wills nothing because (1) the money, coins and jewels distributed to Schroeder’s estate constituted all Anna Niemer intended Schroeder to receive, (2) this second sentence must be construed literally, (3) by such literal construction it can refer only to any property coming to Anna Niemer from Anna K. Craig, of Chicago, Illinois, or her estate, or under the terms of her will, and (4) Anna Niemer had nothing coming to her from Anna K. Craig, or her estate, or under the terms of her will. They argue that this provision cannot possibly refer to any property in the trust because the proceeds of that property were coming to Anna Niemer “by virtue of a trust settlement made by one James Mattalina, and not from Anna K. Craig or her estate.”

Of course, Anna Niemer had nothing coming to her under the terms of the •mill of Anna K. Craig for that will had been admitted to probate in 1948 after the execution of the settlement contract and presumably before the execution of the trust agreement. By the terms of Anna K. Craig’s will, Anna Niemer was to receive only a bequest of $1,000.00. By the terms of the settlement contract, she waived that bequest as one of the considerations for the more favorable terms of that settlement. The language relating to property coming to her under Anna K. Craig’s will, according to this record, was first written in her will of 1947 before the death of Anna K. Craig and of course before the execution of the settlement contract and the trust agreement. It was carried into her five subsequent wills, including her last one, apparently by inadvertence. We can give it no meaning because there is obviously nothing on which it can operate. Schee v. Boone, 295 Mo. 212, 243 S.W. 882.

On the other hand, we believe that appellants’ argument that Anna Niemer meant nothing by “property that may be coming to me” from “Anna K. Craig of Chicago, Illinois, or her estate,” and did not intend to refer to her interest in the trust is wholly theoretical and not logical and is inconsistent with reality. We are not here tracing a title. We are undertaking to determine substance and not shadow, and the true intent and meaning of the questioned provision. We believe there is no substance in the suggestion that any of the assets of the trust really came from anywhere except from Anna K. Craig’s estate. Of course, they came through James Mattalina as the conduit from Anna K. Craig’s estate to the trust, but they did not come to the trust as a result of his generosity or bounty or because Anna Niemer or Guy Barr agreed that their share was Mattalina’s property. They came to the trust only because Guy Barr and Anna Niemer were contesting Anna K. Craig’s will, by force of which Mattalina stood to receive the bulk of Anna K. Craig’s personal property and all of her real estate. To rid himself of the contest and to salvage something for himself and his attorney he agreed to a division of the personal property far less advantageous to him than that provided by the will and he agreed that all of Anna K. Craig’s real estate should be placed in trust in compromised proportions whereby he and his attorney received altogether a %ths interest and Guy Barr and Anna Niemer each received a ¼⅛ interest. The abandonment of the will contest by Anna Niemer and Guy Barr and the settlement contract entered by them with Matta-lina was simply a device for that division of the personalty and for placing all of Anna K. Craig’s real estate in trust for the express purpose of bringing about its orderly liquidation after it was conveyed by Mattalina to Seltzer in trust and a division of its “proceeds and avails” in agreed proportions according to the terms of the settlement contract and the trust agreement. The settlement contract was a clear recognition and understanding by the parties of the right of Guy Barr and Anna Niemer to share in the assets of Anna Craig’s estate and a clear relinquishment by Mattalina of their share to which he would have otherwise been entitled under the contested will. We ask ourselves: Why then would not Anna Niemer reasonably regard her interest in the trust as one coming to her from the estate of Anna K. Craig, and describe it that way, instead of regarding it as an interest which came to her from Mattalina when she wrote her last will? Embracing the realities and not the shadows of this controversy, why should we not regard her interest in the trust in the same light we believe she clearly did ?

In our judgment, the circumstance that Anna Niemer’s will did not specifically refer to her interest in the trust as such is not conclusive that she made no reference to the subject of the trust. In Papin v. Piednoir, 205 Mo. 521, 104 S.W. 63, real estate was conveyed by deeds in trust to a trustee for the sole use of the beneficiary. The trustee was directed to sell the real estate if the beneficiary requested him to do so. The deeds conveying the property to the trustee provided that the property, if not disposed of at the request of the beneficiary during her lifetime, should be conveyed at her death by the trustee to such person as she might by her last will direct. The Supreme Court ruled that this language created a power of appointment in favor of the beneficiary. The trust deeds further provided that if the beneficiary by her last will failed to direct the trustee to convey the property at her death to a person of her selection, then the trustee was to convey the real estate to named persons. By her last will she referred to the real estate, which was still in the trust, as “my real estate situated in the City of St. Louis, Missouri, on Pine Street between Twelfth and Thirteenth streets” in undertaking to exercise her power of appointment. Although she referred by her will to the real estate only in this manner, and made no reference whatever to her interest in the trust as such, it was ruled that she had actually referred to the subject of the trust by the language she employed and that she had validly exercised her power of appointment. We acknowledge that the facts adjudged by this ruling do not exactly parallel the facts with which we are dealing, but this ruling is clear authority that a testator with a power to appoint another by will to be the recipient of his interest in a trust is not absolutely required to refer to his interest in the trust as such in undertaking to exercise his power of appointment. It is sufficient if the reference he makes in his will is really to the subject of the trust when considered in the light of the language seeking to exercise the power of appointment and the competent extrinsic circumstances.

Under the terms of the amendment to the trust agreement, Anna Niemer had the right during her lifetime to sell, assign and transfer her interest in the trust as well as the right- to dispose of it by a will exercising her power of appointment. She also had the right to decline, to sell, assign and transfer her interest and to fail to exercise her power of appointment by will and, regarding that interest, to die intestate and to allow it to go to those entitled to her personal estate under the statutes of descent and distribution in force in this state at the time of her death. But there is a presumption that testators intend to dispose of their entire estate and not to die intestate as to any part of it, and where a provision of a will is fairly open to more than one construction, and this one is, the construction resulting in partial intestacy will not be adopted if it can be avoided by any reasonable construction, 29 Mo.Digest, Wills, 449. This presumption is by no means conclusive, and is of no weight at all if a contrary intent appears, but it is of some weight if the issue is debatable. Here the issue is debatable. Moreover, it is a rule that in determining the true intent and meaning of a will courts must give to every word, phrase and sentence, some meaning if possible, and in doing so they must be guided by surrounding circumstances. In re Yeater’s Trust Estate, Mo.App., 295 S.W.2d 581; Lehmann v. Griffin, 224 Mo.App. 657, 31 S.W.2d 271; Mercantile-Commerce Bank and Trust Co. v. Binowitz, Mo.App., 238 S.W.2d 893. On this record and under these rules we cannot adopt appellants’ theory that Anna Niemer included the second sentence of her residuary provision in her will intending it to mean absolutely nothing.

On the other hand, taking into account the presumption against a testator intending partial intestacy and our duty to avoid a construction of the questioned provision of Anna Niemer’s will which reaches that result if it can be avoided by any reasonable construction, our duty to give to every word, phrase and sentence some meaning if possible in determining the true intent and meaning of the questioned provision, and in doing so to be guided by the extrinsic circumstances, and considering all of the extrirfsic evidence that is recited in this opinion, we believe that the questioned provision, “any property that may be coming to me” from “her (Anna K. Craig’s) estate,” elucidated by the extrinsic evidence, clearly and .adequately refers to the subject of the power of apointment, Anna Niemer’s interest in the trust, requires a ruling that the power of appointment was validly exercised and compels a rejection of appellants’ theory, as hypertechnical, that Anna Niemer had nothing coming to her from the estate of Anna K. Craig because her interest in the trust had come from the Craig estate through Mattalina as a mere conduit from that estate to the trust.

We have analyzed all of the authorities cited by the appellants. We acknowledge the validity of the principles they announce. Sufficient it is to say that, added all together, they cannot warrant a different decision than the one we make on the record before us.

The judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: HOWARD, Judge.

license: Public Domain

text:
    Georgia SPORTSMAN, Appellant, v. Phillip SPORTSMAN, Respondent.
    No. 24390.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      C. B. Burns, Jr., Brookfield, for appellant.
    Walter E. Allen, Brookfield, for respondent.
   HOWARD, Judge.

This is an appeal from the action of the trial court in denying appellant’s motion to modify a divorce decree by granting an increase in child support. The respondent husband originally filed his petition for divorce, but the divorce was granted on the cross-bill of appellant wife. The divorce was granted February 5, 1965, and the wife was given custody of three minor children, with an award of $125.00 per month as child support. The wife subsequently filed a motion to modify the decree by increasing the award for child support. A hearing on this motion was held May 8, 1965.

The evidence in the record before us is extremely sparse and many of the essential facts can be arrived at only by inference and deduction. We are not even presented with the contents of the divorce decree. However, it does appear that the three children, whose custody was awarded to the wife, were one boy, age 17, who was graduating from high school in the spring of 1965, and two younger girls, whose ages are not given, but one of them was referred to as “the baby”. The husband was a railroad conductor, but he overlooked a train order and was “pulled out of service” because of this dereliction on October 8, 1964. He testified that he lost five and one-half months work. 'It appears that under such circumstances he had no right to go back to work and could have been without railroad employment indefinitely and perhaps permanently. However, he did return to work as a railroad conductor some time prior to the hearing on the motion to modify, but after the divorce decree was granted. He was receiving no pay from the railroad at the time of the divorce decree. At the time of the decree, the husband was engaged in the pest control business and he was continuing to operate that business at the time of the hearing on the motion to modify. He testified that at the time of the divorce decree his income from the pest control business was “practically nothing”. During the month of April, 1965, his gross income from the pest control business was $397.00 and he had contracts for monthly roach control services which amounted to $160.00 per month. At the time of the hearing, he was earning a little less than $500.00 a month as a railroad conductor. This was based on gross earnings of $750.00 for the last 45 days preceding the hearing.

The wife had been temporarily employed as a proof reader in a publishing house in a neighboring town, from which she received $50.00 per week, with a take home pay of $96.00 every two weeks. Apparently she secured this employment prior to the divorce decree but testified that it would terminate within two or three weeks after the hearing on the motion to modify. The 17 year old boy had part time employment after school and also did some work for his father at night and on weekends for which he received $2.00 per hour. The testimony concerning the exterminating business refers to “boys” in the plural but no age is given for any other children of the marriage and the evidence does not reveal that the husband is supporting any other child.

The wife testified that the 17 year old boy desired to attend college in the fall of 1965, and that this would entail additional expense in the amount of $800.00 in fees for a year and togéther with room and board would total $1,700.00 to $1,800.00 per year, which she could not provide. She further testified that the children were out of clothes, and that other additional expenses would be necessary in the near future. In her testimony she intermingled her own individual expenses with those necessary for the children’s support.

The husband testified to expenses in connection with his exterminating business far in excess of income. He commingled payments for child support, his railroad union dues and other personal expenses with his business expense. He was not represented by counsel at the hearing on the motion to modify, although he is represented by counsel on this appeal. It would serve no useful purpose to attempt to sift the evidence of expenditures, both because of the uncertainty resulting from the commingling above mentioned and because the itemiza-tions were only partial and fragmentary. Furthermore, their reliability is questionable.

The husband, representing himself, undertook to cross examine the wife. This resulted in an inordinate amount of recrimination and bickering. We conclude from this that neither party had lived up to the provisions of a property settlement agreement entered into at the time of the divorce decree. This was, of course, immaterial to any issue involved in the motion to modify the decree as to child support, but much of it was permitted over obj ection of the wife’s counsel, with the statement by the trial court that it might reveal the wife’s attitude. Such evidence should not have been admitted. The attitude of the wife is not determinative of, or material to, the issues of the needs of the children and the ability of the father to supply these needs. Even if the attitude of the wife should show reason for punitive action against her, this could not form the basis for punishing the children by refusing an increase in child support, which was otherwise shown to be necessary in their best interest. See Slaughter v. Slaughter, Mo.App., 313 S.W.2d 193.

In a matter such as this we must, on appeal, determine the facts from the record as in a trial de novo and render the judgment that should have been rendered. In this case there is no such conflict in the evidence as to call for us to defer to the finding of the trial court on such, matters. See Hawkins v. Hawkins, Mo.App., 250 S.W.2d 817; Simmons v. Trenter, Mo.App., 327 S.W.2d 936; and Long v. Long, Mo.App., 357 S.W.2d 243.

In the present case the ability of the father to pay has radically changed since the date of the divorce decree. At that time he was laid off from his railroad employment for at least an indefinite period and received no income therefrom; he was apparently starting a pest control business, which was then bringing in practically no income. At the time of the hearing on the motion to modify, the husband was receiving a little less than $500.00 per month from the railroad, and his pest control business had progressed to the point where its gross income was $397.00 for the previous month and where he had a regular contractual income of $160.00 per month in such business. Even though we can not determine net income, this shows a marked change in the financial condition of the husband and his ability to adequately support his children. It appears that the wife and the three children in her custody were living in very overcrowded conditions in a small three room apartment about which the husband complained bitterly, and that her income from her temporary employment was about to terminate. She testified that she expected to seek other employment, but her success in such endeavor and the resulting level of income is purely problematical. Although her testimony as to the items of living expense is, at the best, extremely unsatisfactory, it would appear that the children were not receiving adequate support.

She testified that the award for child support in the amount of $125.00 per month was entered by agreement, and that she agreed to this amount at the time of the decree, because her husband was unemployed and without current income and could not afford to pay more. As noted above, this condition has changed. Further, and more important, upon his graduation from high school the 17 year old boy desired to go to college. Such education is not unreasonable. The cost of education and the standard of living of the parties is properly considered in fixing the amount of an award for child support. See Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71 and Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354.

It is axiomatic that awards for child support are merely a fixing, for the future, of the father’s common law duty to support his children. See Lodahl v. Papenberg, Mo., 277 S.W.2d 548; Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71; Slaughter v. Slaughter, Mo.App., 313 S.W.2d 193; Mathews v. Mathews, Mo.App., 337 S.W.2d 529; Riggin v. Riggin, Mo.App., 373 S.W.2d 633. This duty of a father to support his children is not affected or diminished by the economic condition of the children or the wife. See Riesenmey v. Riesenmey, 236 Mo.App. 551, 155 S.W.2d 505, in addition to the authorities above cited. Furthermore, any dereliction of the wife could not relieve the husband and father of this duty or justify a denial of adequate support to the children.

Given a change in condition, it is the duty of the court to fix the amount of child support commensurate with the best interests of the children and their reasonable needs, as necessarily conditioned by the ability of the father to pay. See in addition to the cases heretofore cited, Prudot v. Stevens, Mo.App., 266 S.W.2d 756; Papenberg v. Papenberg, Mo.App., 289 S.W.2d 468; Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354; Long v. Long, Mo.App., 357 S.W.2d 243; Chilcutt v. Baker, Mo.App., 384 S.W.2d 854.

The husband’s brief contends that there has been no showing of changed conditions because, in fixing the amount of the child support at the time of the divorce decree, the court should have taken into consideration both the income of the husband prior to the decree, as well as his income and financial situation at the time of the decree. He bases this argument on the case of Weiss v. Weiss, Mo.App., 392 S.W.2d 646. In this case the husband had voluntarily changed jobs, which change resulted in substantially lower pay, shortly prior to the entry of the divorce decree. The court pointed out that such a voluntary reduction in income could not be allowed to defeat the right of the child to adequate support and that in such a situation the amount of child support should be based on the capacity of the husband to earn and pay and should not be based solely on the husband’s current income. However, this case must be considered in light of the general principles governing this problem and specifically in light of such cases as Schwent v. Schwent, Mo.App., 209 S.W.2d 546, where the husband’s income had been substantially reduced shortly prior to trial, through no fault or action of his own. In that case, the court pointed out that it would be unrealistic to base an award on past income which could not reasonably be expected to continue in the future. The court noted that if the husband’s financial condition did improve in the future, contrary to expectations, the court could, based upon such fact, increase the award of child support commensurate with such improved financial condition. In light of these cases, we cannot properly ignore the fact that the husband in the case at bar was substantially without income at the time of the entry of the divorce decree. There is nothing in the record to indicate that the trial court did not take this into consideration when it apparently approved the agreement as to the amount of child support, which agreement, according to the wife, was based on the fact that the husband was without current income.

We, therefore, conclude that the wife has shown a change in condition, both as to the needs of the children and the ability of the father to pay, and is entitled to an increase in the amount of child support. Normally we would enter the decree that the trial court should have entered. However, because of the unsatisfactory nature of the evidence presented, we are unable to arrive at any proper amount for child support. The evidence is obviously available, but the record presents no clear picture. Most of the evidence that we have before us is not in useable form. Any award that we might make could be based only on guess and conjecture. We decline to assume such a handicap, but under the circumstances we believe that this case should he remanded to the trial court for the taking of additional evidence so that a reasonable award of child support may be made. See Simon v. Simon, Mo., 248 S.W.2d 560; Nelson v. Nelson, Mo.App., 357 S.W.2d 223 and Chilcutt v. Baker, Mo.App., 384 S.W.2d 854.

We note that the trial court had before it, and apparently considered, its notes made at a previous hearing. The date of this hearing is not disclosed but it appears to have been a hearing on an application for temporary alimony and support, which was held at a time prior to the husband’s lay-off from his job as railroad conductor. It is not clear, but we infer, that in this application the wife asked for only $200.00 per month. The wife explained this was only enough to cover the barest and most meager of necessities, which would only permit existence rather than living, and was only designed to provide for a very temporary period. These notes are not incorporated in the record and consequently are of no assistance to us. They do not require that we defer to the finding of the trial court in this situation. Over a year has passed since the hearing on the motion to modify. At that time the 17 year old boy anticipated becoming a college freshman 'in the fall of 1965. If he did matriculate he would normally be in his sophomore year at the present time. Not only does this show additional change of condition, but the facts that have actually transpired since the hearing may throw an entirely different light on the situation. Therefore, the wife should be permitted to amend her application to modify the divorce decree as to child support, if she and her counsel are so advised.

The decree below is reversed and the cause is remanded for further proceedings in accordance with this opinion.

All concur.


author: MAUGHMER, Commissioner.

text:
    WEEKS-MAXWELL CONSTRUCTION COMPANY, Inc., Appellant, v. BELGER CARTAGE SERVICE, INC., Respondent.
    No. 24360.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Henry G. Eager, James H. McLarney, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of- counsel, for appellant.
    William W. Shinn, Donald K. Hoel, Robert K. Waldo, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is a suit for damages allegedly arising from the negligent operation of a heavy duty crane. There is little dispute as to the facts. The plaintiff, Weeks-Maxwell Construction Company, is a general contracting company, located in Independence, Missouri, and engaged principally in the construction of sewer plants and hospitals in an area within a sixty mile radius of Kansas City, Missouri. In 1961, it contracted with the City of Independence, Missouri to construct the Sugar Creek Sewage Disposal Plant. Weeks-Maxwell was the general contractor for the whole job and was responsible for the property during the entire building period and until the finished construction was turned over to and accepted by the City of Independence.

As is usual in such matters, the plaintiff subcontracted various portions of the job. To the Kansas City Concrete or Castings Company went a subcontract to precast a large concrete beam, deliver it to the •project and position it across the top of a large circular tank. This beam was approximately 55 feet long and weighed over 15 tons. The Castings Company in turn subcontracted the job of placing this beam In position to John Haggard, Jr., d/b/a Haggard Heavy Hauling. On Friday, August 17, 1962, two things became apparent to Haggard. First, the beam should be positioned on Monday, August 20, 1962, and second, none of Haggard’s large heavy duty cranes would be available for use on that date. In the past in such emergencies, Haggard had used cranes belonging to the defendant Belger Cartage Service, Inc., and Belger had on occasion used Haggard’s equipment. In any event, on Friday, August 17, John Haggard called Belger by telephone and talked with Albert Schons, crane operator, and made arrangements for Belger to have a Bay City 35 ton crane .on the job on the following Monday morning. Gene Larson, Haggard’s foreman on •the job, knew and had worked before with one of Belger’s crane operators, Virdus (Bill) Hurst, so it was requested that Hurst •come also. Hurst, James Henak, an oiler, and the crane arrived on Monday morning. There is some little dispute as to whether the crane was a 35 ton type or not. It -really makes little difference.

According to custom, Mr. Hurst brought with him Belger’s written “work order” and it was signed by Gene Larson, foreman for Haggard, the lessee. In part it contained the following statements:

“7. The lessee understands and agrees that all control of and any rights of control over personnel and equipment furnished are expressly relinquished and surrendered by Belger Cartage Service, Inc., and assumes the exclusive right to supervise and control them during the continuance of this agreement.
“The lessee specifically agrees that there is a complete surrender of control in regard to the aforementioned employees and equipment and not simply a division of control. This lease is upon the agreement by Belger Cartage that no personnel may be replaced or substituted by Belger Cartage except at the direction and with the approval of the lessee and that the lessee shall have the right to control all of the details of operation of the equipment and personnel furnished.
“The person signing this agreement specifically represents that he has the right and authority to agree to the foregoing terms. Any disputes or disagreements concerning the right of control over personnel or equipment furnished shall be resolved in favor of such control being in the lessee”.

This agreement described the equipment furnished as a 35 ton crane and named the personnel as “Hurst and J. Henak”.

When Hurst arrived at the job site, he, Gene Larson and Henak set the crane in position. The ground was loose although it had been watered down and run over by a caterpillar, but it was not solid and therefore Mr. Larson secured some timbers to “shore up” around the crane and its outriggers. Hurst operated the crane. Larson was up on a wall, giving directions, largely by hand motions and was in charge. Another Haggard employee was on the ground helping direct. The large beam was picked up, but before it could be placed in position the shoring timbers or the soft ground, or both, gave way, and the crane began to tilt. Mr. Hurst then dropped the beam. It was generally agreed he had no other wise alternative. The beam fell on part of the uncompleted construction, and under the agreement of all parties, caused damages of $5,178.93.

Thereafter, on May 8, 1963, an “assignment agreement” was entered into between Haggard Heavy Hauling, Kansas City Castings Company and Weeks-Maxwell Construction Company, Inc. The subject matter of the agreement was the accident of August 20, 1962, which we have just described. Under its terms Haggard agreed to pay to Castings Company and to Weeks-Maxwell the sum of $5,178.93, the amount agreed upon as the damage done to the uncompleted sewage treatment plant when the 15 ton beam was dropped and fell. This payment concededly was made by Haggard and all of it actually went to plaintiff, the prime contractor, which was ultimately liable to repair the damaged construction. This agreement also recited assignment and subrogation to Haggard of all claims which Castings Company and Weeks-Maxwell might have against Belger Cartage Service for damages arising from the accident.

Chronologically, the next event occurred on June 18, 1963, when Weeks-Maxwell and Kansas City Concrete Company filed the first petition in the present action against Belger Cartage Service. The Kansas City Concrete Company or Castings Company was early and voluntarily dismissed as a party plaintiff as it had no interest in the subject matter of the contest.

Knowledge that whatever claims Weeks-Maxwell and Kansas City Castings had against Belger had been assigned to Haggard having come to the attention of defendant, a motion to dismiss was filed on the ground that Haggard, a necessary party and the real party in interest, was not joined. Thereafter, on February 8, 1965, Haggard reassigned to Kansas City Concrete and Weeks-Maxwell the cause of action “for the sole purpose of controlling and distributing the net proceeds after expenses” to Haggard, which had already paid the full amount of the damages.

Defendant asserted before the trial court and before trial that even if Belger were negligent as plaintiff claimed, then at most Haggard and Belger were joint tort-feasors, and Haggard, having paid the damage claim in full, could not either in his own name or in the name of his assignee, maintain a suit or make a recovery against his joint tort-feasor. The trial court did not adopt this view of the law, and the case was apparently tried on the theory that plaintiff Weeks-Maxwell was the assignee of Haggard and was bringing and maintaining the suit for Haggard and any recovery would be for Haggard’s benefit. Defendant was not allowed to show the payment by Haggard, but was allowed to show Haggard’s negligence, which was treated as contributory negligence and as such would bar any recovery. Reception of the assignment and reassignment into evidence was also permitted. It should be noted that plaintiff sought to recover in this action $5,178.93, the exact amount which had been agreed upon as damages and the exact amount which had been paid to it by Haggard.

The verdict of the jury was for defendant Belger and judgment was entered accordingly. Plaintiff has appealed and makes three assignments of error. In its second assignment, plaintiff says the court erred in repeatedly allowing defendant to infer to the jury that Haggard had paid plaintiff for its damages and allowed introduction of the assignment and reassignment agreement, which recited such payments. It was plaintiff’s final trial theory, we think, and the one which the trial court permitted it to go to trial upon, that plaintiff was suing as Haggard’s assignee, and any recovery would be as trustee for Haggard. We believe the assignment and reassignment agreements were properly admitted. Without the reassignment, plaintiff could not maintain such an action. The cases cited by plaintiff to convince us otherwise, are under the theory that they are payments from collateral sources (sick leave benefits, Blue Cross, Social Security, Railroad Retirement). Without lengthy discussion, we rule this point against appellant.

Points I and III complain about Instruction No. 3, which we set out in full:

“INSTRUCTION NO. 3.
“Your verdict must be for defendant, whether or not defendant was negligent, if you believe:
“First, that Gene Larson, John Haggard’s foreman, either directed or joined in the positioning of such crane, or directed or joined in the shoring of such crane or knew or by using ordinary care could have known that it was dangerous to use such crane as so positioned and shored, and
“Second, Larson’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
“Third, such negligence of Larson directly caused or contributed to cause any damage plaintiff may have sustained.
“The term ‘ordinary care’ as used in this instruction means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances”.

Plaintiff says Instruction No. 3 is erroneous because “it improperly imputed the negligence of Gene Larson, an employee of Haggard Heavy Hauling, which was not a party to the suit, to the plaintiff”, and “even conceding that plaintiff was suing on Haggard Heavy Hauling’s cause of action, Haggard’s cause of action would be for indemnity and its negligence would not be a defense unless it was active, but said instruction did not require the jury to find that Larson was actively negligent and further all of the evidence shows that Larson was not actively negligent”.

If we understand plaintiff’s position correctly, it is not seeking a contribution between tort-feasors. In any event, such contribution is not permitted in Missouri except after a joint judgment. State ex rel. McClure v. Dinwiddie, en Banc., 358 Mo. 15, 213 S.W.2d 127. Among other contentions, plaintiff says its claim is not for contribution but for indemnity in toto. As a basis for this theory plaintiff seeks, as it must, to lay all the negligence on Belger. Ordinarily, this is a jury question. However, the jury here placed the blame not on Belger, but on Haggard. See Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 803. The same rule is stated this way in Barb. v. Farmers Insurance Exchange et al., Mo. 281 S.W.2d 297, 304:

“It is the general rule, where one person has been exposed to liability and compelled to pay damages on account of the negligence of another, the first has a right of action against the other for indemnity where the parties are not in pari delicto. In cases where one party creates the condition which causes injury and the other does not join therein but is exposed to liability on account of it, the rule that one of two joint tort-feasors cannot maintain an action against the other for indemnity does not apply”.

In any event, the plaintiff’s suit here was under and by virtue of the reassignment of the cause of action by Haggard. Wecks-Maxwell had no other cause of action because its claim had been paid in full. As stated in 25 C.J.S. Damages § 3, pp. 627, 628:

“As a general rule, a person who has sustained loss or injury may receive no more than just compensation for the loss or injury sustained. He is not entitled to be made more than whole, and he may not recover from all sources an amount in excess of the damages sustained, or be put in a better condition than he would have been had the wrong not been committed”.

The assignee of a cause of action takes it subject to the defenses that were available against the assignor.

In 6 C.J.S. Assignments § 114, pp. 1164, 1165, we find this statement:

“Generally, in the absence of an es-toppel (see infra § 117), the assignee takes the assigned chose subject to all equities and defenses between the assignor and the debtor existing at the time of the assignment, and to arrangements made between the debtor and the assignor prior to the time when the debt- or receives notice of the assignment, and this rule holds whether the assignment is legal or equitable”.

We hold that the court did not err in giving Instruction No. 3. If Larson, who was foreman and in complete charge of the job for Haggard, plaintiff’s assignor, was negligent, or contributorily negligent, then Haggard could not recover, nor could the plaintiff, standing in Haggard’s shoes, recover. Appellant, in its brief and in its oral argument has advanced no other tenable or reasonable theory.

Appellant says that defendant inferred to the jury that Haggard had paid plaintiff for its damages and that this was prejudicial and amounted to reversible error. We do not think so. The assignment and reassignment agreements recite the payment and as nearly as we can tell, plaintiff finally went to trial as assignee.

As we examine this record and the written “work order” under which Belger’s crane and two employees were “turned over” to Haggard for this job on August 20, 1962, we are unable to conclude that Bel-ger or its employees had anything to do with the incident insofar as Belger is concerned. Belger’s employees (Hurst and Henak) were on loan or lease to Haggard just as much as the crane — all were under the control and direction of Haggard. Bel-ger had nothing to do with the job. Neither Belger -nor its employees were vested with any authority over the crane, their own activities, or over the job. In our opinion no reasonable man could conclude otherwise. We believe the trial court should have considered — most seriously— directing a verdict for Belger. We have examined the record and have considered plaintiff’s assignments of error. We find no reversible error. We believe the verdict and judgment were clearly for the right party.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion by MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


text:
    STATE of Missouri, Respondent, v. Richard D. WRIGHT, Appellant.
    No. 24548.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Eugene P. Wilhelmsen, Blackford & Wilhelmsen, Kansas City, for appellant.
    Gerald Kiser, Pros. Atty., John R. Hutcherson, Asst. Pros. Atty., Liberty, for respondent.
   MAUGHMER, Commissioner.

In the case before us defendant was tried for obtaining airplane tickets by use of another person’s credit card. The information charged that the act was done feloni-ously. The jury was instructed under the felony false pretense statute. The jury found defendant guilty and fixed his punishment within the limitations of that felony statute as the court had instructed it to do. Thereafter the trial court concluded that defendant’s crime, if any, based upon the factual allegations of the information and the evidence presented, amounted to only a misdemeanor. Defendant moved for new trial but the motion was denied. The court simply reduced the punishment to within the limitations provided for the misdemeanor violation. Defendant has appealed. Did the trial court have the right to do this or did it exceed its authority in so doing? That is the ultimate and basic question before us.

The information alleged that defendant Richard D. Wright at the county of Clay, and state of Missouri, on September 19, 1965, “willfully and feloniously with intent to cheat and defraud, did obtain from Trans World Airlines, a corporation”, “airline tickets by means and by use of trick or deception and false and fraudulent representation or pretense”, and did present to TWA an American Express credit card made to one Jack Borders and did “falsely represent himself to be the said Jack Borders” and TWA, relying on said false representation, “did deliver to defendant valuable airline tickets”. Typewritten on the back of the information is the following: “Sec. No. 561.450, Missouri Revised Statutes”.

Section 561.450, V.A.M.S. provides in part:

“Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game’, * * * or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment by the department of corrections for a term not exceeding seven years or by confinement in the county jail for not more than one year or by a fine of not more than one thousand dollars or by both such confinement and fine”.

Violation of this statute may result in imprisonment in the penitentiary. The crime there defined is therefore a felony. The court gave Instruction No. 2, couched in the phraseology of the information and directing that if defendant be found guilty “of obtaining property by means of false pretenses” his punishment should be fixed at “imprisonment by the department of corrections for a term not exceeding seven years; or, by confinement in the county jail for not more than one year or by a fine of not more than one thousand ($1,000.00) dollars; or, by both such confinement and fine”.

Section 561.415, V.A.M.S., was enacted in 1961. It provides that any person “who, with intent to defraud or to aid and abet another to defraud any person, firm, or corporation of the lawful charge, in whole or in part, for any goods, wares or services, shall obtain, or attempt to obtain, * * * any goods, wares or services by charging such goods, wares or services to an existing telephone number, credit card, credit card number, or other credit device, without the authority of the subscriber thereto or the lawful holder thereof, * * * is guilty of a misdemeanor and shall, upon conviction be punished by confinement in the county jail for not more than one year or by fine not exceeding one thousand dollars, or both such fine and confinement”.

Section 561.450, supra, is a statute dealing generally with a common subject matter, namely, “confidence game or fraudulent checks”. Its violation is made a felony. Section 561.415, supra, passed later, is a special statute dealing with charge accounts and credit cards. Its violation is classed as a misdemeanor. In construing statutes of these two types as to applicability, the Supreme Court in State v. Richman, 347 Mo. 595, 148 S.W.2d 796, 799, quoted with approval the following from State ex rel. Buchanan County v. Fulks, 296 Mo. 614, 247 S.W. 129, 132:

“ ‘Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the pri- or general one; * * * ’

It seems clear that defendant who obtained airplane tickets by the unauthorized use of another’s credit card was in violation of Section 561.415, the special statute, which is a misdemeanor, and not in violation of Section 561.450, which is a felony. We believe that the information, even though the word “feloniously” is used, when properly construed, charges only violation of the misdemeanor statute. This is so because in our opinion the factual recitations therein clearly amount to a violation of the misdemeanor statute and not of the felony statute.

The transcript in this appeal includes none of the evidence. We assume that the testimony shows beyond any reasonable doubt that defendant did use the credit card of Jack Borders and pretended to be Jack Borders, and by such use and pretense procured airplane tickets from TWA. The respondent, State of Missouri, has filed no brief and has not favored this court with oral argument. If defendant’s acts were only chargeable under the credit card statute and if the offense under the facts as alleged and presumably properly proved by the state amounted to only a misdemeanor, and if the information, properly construed, charged only a misdemeanor, then this court has jurisdiction of the appeal and the trial court erred in giving Instruction No. 2. It erred because the instruction authorized the jury to fix defendant’s punishment — maximum—at imprisonment by the department of corrections for seven years, whereas under the misdemean- or statute the maximum was one year in jail. Clearly the special statute applies. In State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026, 1029, the court said:

“If, however, the statutes are necessarily inconsistent, that which deals with the common subject-matter in a minute and particular way will prevail over one of a more general nature”.

It is true that where defendant is properly charged and tried, and where proper instructions are given, but, nevertheless, the jury fixes a greater punishment than is provided, then in that event the court “shall disregard the excess, and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case”. Section 546.460, V.A.M.S. and Rule 27.06, V.A.M.R. Likewise, where the jury assesses punishment below the limit prescribed by law, the court shall render judgment and pronounce sentence “according to the lowest limit prescribed by law in such cases”. Section 546.450, V.A.M.S. and Rule 27.05, V.A. M.R. These authorizations are purely statutory and such authority probably would not exist without the statutes.

In State v. Duddrear, 309 Mo. 1, 274 S. W. 360, 361, the statutory range of punishment was from two to ten years. The court instructed that if defendant were found guilty, defendant’s punishment should be assessed at “not less than two years”, but neglected to instruct that the maximum was ten years. The jury found defendant guilty and assessed his punishment at twelve years. The court rendered judgment and pronounced sentence of ten years. The Supreme Court reversed, remanded and declared:

“The statute (section 4050, R.S.1919), authorizing the court, if the jury assess a punishment in excess of that prescribed by law, to disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in regard to the particular case, if it had been observed, could not be invoked to sustain this conviction. The purpose of this statute is to enable the trial court to render a correct judgment where the jury has been properly instructed as to the degree of punishment and returns a verdict in disregard of such instruction and in excess of the legal limit; but the statute confers no power of amendment on the trial court where the error, as here, consists in a misdirection by the court itself. State v. Britton (Mo.Sup.) 183 S.W. 295”.

We quote on the same point from State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432, 435:

“Many more expressions of this court might be cited indicating the view that the duty of fixing the punishment where there is an alternative is by statute placed primarily upon the jury and that the court may exercise that power only when the jury has failed to agree or properly to discharge its duty in that regard. We have found none to the contrary. The duty being thus imposed upon the jury, the defendant certainly has a corresponding right to have that duty properly and intelligently performed, and to the end that it may be so performed it is necessary that the jury be properly instructed as to the applicable law”.

On this proposition the Supreme Court in State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760, 763, made this declaration:

“If the jury were led by the court’s erroneous instructions, or the lack of necessary instructions, into fixing the wrong punishment, the court could not thereupon usurp the province of the jury and fix the punishment, notwithstanding the provisions of section 3704, R.S.Mo. 1929 (Mo.St.Ann. § 3704, p. 3259). It is true that section says: ‘Where the jury finds a verdict of guilty and assess a punishment not authorized by law, * * * the court shall assess and declare the punishment.’ But it was held in State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432, that this section does not authorize the court to lead the jury into error by wrongful instructions and then to reject their verdict and itself assess the punishment”.

See also State v. Myers, Mo.App., 125 S.W.2d 93.

24 C.J.S. Criminal Law § 1570a, p. 446, tells us that a person charged with crime has the right to have the jury fix the punishment and states:

“Right to have jury fix punishment. If a person accused of crime has the right to have a jury fix the punishment to be imposed, he may not be deprived of this right by the trial judge, and, accordingly, where accused enters a plea of not guilty and in the course of the trial to a jury admits facts which establish his guilt, it is improper for the trial judge to discharge the jury and then proceed to fix the punishment”.

There is one more argument which might conceivably be advanced by respondent, namely, that defendant was not prejudiced by the action of the trial court (1) in giving the erroneous instruction and (2) in assuming the jury function of fixing the punishment. But is such an argument either sound or decisive on this appeal ? The jury was told that the acts which defendant was charged with doing constituted a felony, when in fact they amounted to only a misdemeanor. Can it be said that this misdirection did not overly impress the jury with the gravity of the offense and prejudice defendant’s position before the jury? The jury was told that the maximum punishment was seven years imprisonment in the penitentiary, when actually the maximum imprisonment was one year in the county jail. Can it reasonably be concluded that this tremendous enlargement of the possible punishment did not excessively instill the minds of the jury with the seriousness of the offense? Can we be sure or could the trial judge have been sure that the jury, if it had been properly instructed, would have fixed defendant’s punishment at the maximum authorized; that is, imprisonment in the county jail for a period of one year? We think not. We are not certain that if the jury found the defendant guilty it would have fixed his punishment at imprisonment for one year and if not, then surely defendant was prejudiced by the action of the court in assuming one of the functions of the jury, namely, the assessment of punishment and then giving the maximum sentence.

Under our law, defendant is entitled to a jury trial. He is entitled to have the jury properly instructed. He is entitled to have the jury told what crime, if any, the acts which it is alleged he committed, constituted.' One of the jury functions is the assessment of punishment, and unless it fails to agree, or exceeds or goes below the prescribed limits, when told precisely what the limitations are, the court is not permitted to usurp such prerogative.

There is no doubt the court erred in giving Instruction No. 2. The instruction clearly authorized imposition of punishment far in excess of that authorized. Defendant was denied the right of having the proper offense submitted. He was denied the right of jury trial as to having the correct offense submitted, and denied his right of having the jury fix his punishment. We believe such denials each constitute plain error and were prejudicial.

Because the court erred in submitting a felony, as to which defendant could not have been lawfully convicted, instead of the misdemeanor; because of the plain and prejudicial error in giving Instruction No. 2; because of the unauthorized action of the court in assuming the function of the jury in fixing the punishment and because the court erred in denying defendant’s motion for new trial, we believe we must reverse the judgment and remand this cause for a new trial, where such errors will not recur.

The judgment is reversed and the cause remanded.

SPERRY, C, concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


author: MONTGOMERY, Judge.

text:
    Arthur Bryson RICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.
    A. W. Mann, Ashland, for appellant.
    Robert F. Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

The question is whether the evidence is sufficient to sustain the verdict of guilty of the murder of Brenda Lou Howard. Arthur Bryson Rice appeals from a judgment of life sentence.

Sometime in the evening of March 14, 1962, Brenda Lou Howard and her husband, Donald, both received gunshot wounds, and Brenda Lou knife wounds, which resulted in their deaths. The killings occurred in a remote wooded area near Ashland frequented by young people for romantic purposes. The young couple had been married a short time. The announcement of the wedding was being postponed until Brenda Lou, a senior, graduated from high school.

Brenda Lou was “barely alive” when found the following morning. She was lying on the floor in the rear of the car. She was on her back, with her head turned toward the front of the car and the driver’s seat. She had received three gunshot wounds on the right side of her face and her head. A bullet removed from her brain had inflicted the fatal wound. She received a knife stab wound in the breast bone. Her other wounds were described thus:

“ * * * there were several wounds on her hands, on the back of her left hand a severe slash wound, then there was a grasping type wound into the bone on her left hand which severed the web space between the thumb and the fingers and went across the bone, there were several stab like wounds in the palm of the left hand, there were several stab like wounds on the back of the right hand and it has more from which she grasped the knife.”

Donald Crawford and Michael Estep testified that about dusk on the night of the killing they were passengers in a car which was driven slowly past the scene of the killing. They saw two cars facing each other about fifty to sixty yards apart. One was identified as belonging to Donald Howard. The other car was a 1950 or 1951 Ford, with a broken tail light patched with tape and with primer paint on a front fender. This description matched a car sold to appellant by James Marcum about two weeks before the homicide. There was evidence that such a car was kept parked behind appellant’s house after the killing. Appellant sold his car for “junk” shortly thereafter.

Appellant was unknown to Crawford and Estep, but the detailed description they gave of the man standing beside the Howard car substantially fitted appellant. They reported to the police the next morning their observations of the previous evening. Appellant’s attack on the detailed descriptions goes to the credibility of the witnesses and was a matter for the jury to decide.

Mary Vanderpool testified that she saw appellant and Earl Caudill leaving appellant’s home about seven o’clock on a Wednesday night which, she felt almost certain, was the night on which the victims were killed. She said that Caudill was carrying "a rifle. About two weeks prior thereto she had observed appellant and Caudill “hollering at her and whistling at her,” referring to Brenda Lou, who crossed the street ostensibly to avoid them.

The rifle from which the fatal bullet was fired was owned by appellant’s father, with whom appellant lived. It was shown that appellant frequently used the rifle for target shooting in the area where the crime was committed. The rifle was taken from his home by officers about one month after the killing.

The investigating officers found seven spent shells at the scene of the crime. Three of the shells were found inside the automobile where Brenda Lou’s body was found. Four shells were found on the ground outside the car. A ballistics expert testified that the shells had been fired from the rifle owned by appellant’s father. He further testified that the bullet fragment removed from the victim’s head was of the same caliber as the rifle. The condition'.of the fragment was such that the bullet could not be identified as having been fired from the rifle. Appellant’s attack on the integrity of the shells and fragment is merit-less in view of the detailed evidence establishing their proper custody at all times.

The standard by which to determine the sufficiency of the proof to uphold a conviction based on circumstantial evidence has been expressed in different ways. Bolen v. Commonwealth, 303 Ky. 611, 198 S.W.2d 309; Johnson v. Commonwealth, Ky., 244 S.W.2d 736; Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1; Pennington v. Commonwealth, Ky., 262 S.W.2d 689; Kinder v. Commonwealth, Ky., 279 S.W.2d 782; Holland v. Commonwealth, Ky., 323 S.W.2d 411; Etherton v. Commonwealth, Ky., 335 S.W.2d 899; Brown v. Commonwealth, Ky., 340 S.W.2d 471; Rose v. Commonwealth, Ky., 385 S.W.2d 202. Without reiterating the circumstances, the evidence is sufficient to sustain the verdict in the light of the cases cited. See also Hoskins v. Commonwealth, Ky., 374 S.W.2d 839.

It is unnecessary to prove motive to sustain a verdict. Kratzwald v. Commonwealth, 299 Ky. 10, 184 S.W.2d 120; Pittman v. Commonwealth, Ky., 242 S.W.2d 875; Asher v. Commonwealth, Ky., 275 S.W.2d 416. However, there is evidence here to indicate that the motive was sexual assault. The testimony concerning appellant and Caudill “hollering” and “whistling” at Brenda Lou so indicates. The physical facts of the wounds indicate that Donald Howard may have been killed by gunshot wound first and that Brenda Lou was then attacked and threatened with a knife. The cut wounds on her hands indicate the desperation of her defense and also indicate that she was shot with the rifle as a last resort. The fact that a sizeable sum of money was not taken indicates that the motive was other than robbery.

The evidence for the prosecution has been examined and found sufficient. The testimony in behalf of appellant was in the nature of an alibi, which was not believed by the jury. In Fry v. Commonwealth, 259 Ky. 337, 82 S.W.2d 431, relied on by appellant, the proof of alibi was overwhelming. Such is not the case here.

Fyffe v. Commonwealth, 301 Ky. 165, 190 S.W.2d 674, and 305 Ky. 760, 205 S.W.2d 335, relied on by appellant, is distinguishable. In Fyffe there was “no clear and cogent evidence,” as described in Tarkaney v. Commonwealth, 240 Ky. 790, 43 S.W.2d 34, that the death was the result of some criminal agency. Death resulted here from a criminal agency without doubt; hence, the Fyffe case is not controlling.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    Thomas B. RATLIFF, Commonwealth’s Attorney, 35th Judicial District of Kentucky, Petitioner, v. Honorable James B. STEPHENSON, Judge, Pike Circuit Court, Division No. 1, Respondent.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    Thomas B. Ratliff,’ Commonwealth’s Atty., Pikeville, for petitioner.
    Kelsey E. Friend, Pikeville, for respondent.
   DAVIS, Commissioner.

Thomas B. Ratliff, Commonwealth’s Attorney for the 35th District of Kentucky, invokes the original jurisdiction of this court seeking an order against Honorable James B. Stephenson, Judge of the Pike Circuit Court, Division No. 1, prohibiting him from utilizing the grand jury and petit juries in criminal investigations and trials at the present session of the court. By an order heretofore issued, the relief sought has been denied; this opinion will state the reasons for that ruling.

The petitioner alleges, and the respondent admits, that seventy-seven names were drawn by the respondent judge from the jury wheel as prospective members of the grand and petit juries for the November, 1966 session of the Pike Circuit Court. KRS 29.135(2) is applicable since the Pike Circuit Court is one of continuous session and located within a county which does not contain a city of the first class. The statute directs that only seventy-two names shall be drawn from the jury wheel as prospective members of the grand jury and petit juries for the ensuing session of the court. KRS 29.135(10) became effective March 23, 1966, and provides:

“Any departure from the procedure set out in any of the foregoing subsections shall create sufficient cause for challenge to the entire panel.”

The petitioner contends that the violation of KRS 29.135(2) by drawing seventy-seven names instead of the authorized seventy-two will vitiate all actions of the grand jury and verdicts of the petit juries in criminal investigations and trials at the current session of the Pike Circuit Court.

The respondent concedes that he drew five more names from the wheel than authorized by the cited statute. He alleges that his nine years’ experience as judge in the court has taught him that drawing seventy-two names usually will not provide sufficient persons for completion of the grand and petit juries. He noted that of the seventy-seven persons whose names were drawn only forty-seven appeared at the first day of the court session. The others had been excused or were otherwise unavailable. It was from the forty-seven persons who appeared that the grand jury and petit jury panel were formed at the current term.

It is not claimed that the respondent availed himself of KRS 29.135(5) which •permits entry of an order reciting the necessity for drawing more names than prescribed by the regular sections in extraordinary circumstances. Thus we are squarely confronted with the question whether the drawing of five names more than authorized by KRS 29.135(2) renders illegal the entire panel.

We need not inquire whether we have a constitutional question relating to the separation • of governmental powers. In order to avoid that question we construe KRS 29.135(10) as meaning that any substantial departure from the procedures set out in KRS 29.135(1) through (9) “* * * shall create sufficient cause for challenge to the entire panel.” In the present case we do not regard the drawing of five more names than authorized as constituting a substantial departure from the statutorily prescribed procedures.

An examination of decisions of this court relating to formation of juries reveals that substantial compliance, as opposed to strict compliance, runs like a golden thread through our cases. See as examples, May v. Commonwealth, 294 Ky. 308, 171 S.W.2d 465; Hopkins v. Commonwealth, 279 Ky. 370, 130 S.W.2d 764; South v. Commonwealth, 287 Ky. 99, 152 S.W.2d 295; Kitchen v. Commonwealth, 275 Ky. 564, 122 S.W.2d 121; Bain v. Commonwealth, 283 Ky. 18, 140 S.W.2d 612.

Among more recent decisions of the court are to be found additional instances in which is stressed the need that the method of jury selection be free from suspicion. See, as examples, Juett v. Calhoun, Ky., 405 S.W.2d 946; Price v. Commonwealth, Ky., 366 S.W.2d 725; Commonwealth, Department of Highways v. Garland, Ky., 394 S.W.2d 450; Gill v. Commonwealth, Ky., 374 S.W.2d 848.

In the present case there is no intimation that any improper motive prompted the respondent’s drawing of five names more than directed by the statute. We are not to be understood as approving the practice of disregarding the statute, but we are not persuaded that there has been such departure here as warrants vitiating the formation of the entire panel.

      . For example, see Commonwealth, ex rel. Atty. Gen. v. Furste, 288 Ky. 631, 167 S.W.2d 69; Craft v. Commonwealth, Ky., 343 S.W.2d 150.


author: WILLIAMS, Judge.

text:
    George BRUMMETT, Petitioner, v. Hon. W. R. KNUCKLES, Judge, Bell Circuit Court, Pineville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    George Brummett, pro se.
   WILLIAMS, Judge.

George Brummett, presently imprisoned at Eddyville, brings this action pursuant to Kentucky Constitution, section 110. He seeks an order of mandamus requiring the Judge of the Bell Circuit Court to cause the record of a hearing on motion to vacate judgment under RCr 11.42 to be forwarded to the clerk of this court. The petitioner states that his motion to vacate was overruled without a hearing and that he has perfected an appeal therefrom.

The respondent was duly notified of the filing and nature of this proceeding but has made no response. Accordingly, we are left with no alternative but to treat as confessed the allegations of the petition. Wahl v. Simpson, Ky., 385 S.W.2d 171 (1964).

Petitioner has been granted leave to proceed in forma pauperis. Consequently, the respondent is directed to cause the transcript of the record made on the motion to vacate judgment under RCr 11.42 to be forwarded to the clerk of this court and a copy thereof to the petitioner without cost to the petitioner.

Accordingly, the order of mandamus is granted.


author: MOREMEN, Judge.

text:
    Asbury THOMPSON, Jr., Petitioner, v. Hon. Don A. WARD, Judge Perry Circuit Court, Hazard, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.

      Asbury Thompson, Jr., pro se.
   MOREMEN, Judge.

Asbury Thompson, Jr. is a prisoner and inmate of the U.S. Penitentiary at Atlanta, Georgia. He filed a complaint in the Perry Circuit Court against “Miners Hospital, Chief Jailer, Perry County, Kentucky and State Trooper Deese and Perry County, Kentucky,” in which he stated that his constitutional and civil rights had been violated. He asked for damages from defendants under sections 1981 and 1983 of Title 42 U.S.C.A. Petitioner asked permission to proceed in forma pauperis under KRS 453.-190. The court overruled the motion.

Petitioner has now applied to this court for a writ of mandamus directing the Perry Circuit Court to permit him to proceed in forma pauperis.

KRS 453.190 reads:

“Except as provided in paragraph (b) of subsection (2) of KRS 28.460, a court may allow a poor person residing in this state to prosecute or defend any action therein without paying costs, whereupon he shall have any counsel that the court assigns him and shall have from all officers all needful services and process without any fees, except such as are included in the costs recovered from the adverse party.”

It will be noted that the above statute extends the privilege to persons residing only in this state and petitioner has not shown that he is a resident of this state; in fact, the record indicates that he is a prisoner in Atlanta, Georgia. However the circuit court did not base its decision upon that fact and there was no adjudication as to the residence of petitioner. The court held in the order overruling the motion to proceed in forma pauperis:

“The Court having considered same, finds that K.R.S. 453.190 does permit the Court to allow a person to so sue or prosecute when such applicant is a poor person. The Court in this action' is of the opinion that the statute of limitations has tolled the action and further notes that the defendants are improperly named, as the applicant refers'to Miners Hospital when the actual name of that hospital in July 1962 was Miners Memorial Hospital, under the supervision of the United Mine Workers of America Welfare Fund; that the jailer at that time was William Kelly and that Trooper Deese first name is Robert Deese.
“It is therefore ordered and adjudged by the Court that the applicant’s motion for permission to sue in forma pauperis be and same is now overruled.” •

It is evident the trial court did not base its ruling upon the ground that the petitioner was a non-resident of the state. That matter has never been considered. The court’s action in examining the petition and holding that the statute of limitations had tolled the action and that the defendants were improperly named was improper. The matter of limitations is a personal one and in order for it to become an issue in the case it must be pled affirmatively. CR 8.03.

We must keep in mind that the action which petitioner wishes to file in the Perry Circuit Court is civil in nature; in this opinion we are concerned only with the meaning of KRS 453.190, insofar as it applies to actions which are of a civil nature.

We are of opinion that the court should re-examine petitioner’s motion to proceed in forma pauperis without reference to other matters which might arise if complaint in the circuit court should be permitted to be filed.

The petition for writ of mandamus is granted and the case remanded for proceedings consistent with this opinion.