author: EAGER, Judge.

text:
    AUSTIN & BASS BUILDERS, INC., Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Appellants.
    No. 49168.
    Supreme Court of Missouri, En Banc.
    July 16, 1962.
    Motion for Rehearing Denied Sept. 10, 1962.

      Lucian Lane and W. M. Thurman, Kansas City, for appellants.
    Terry & Welton, Jack C. Terry and Gay-lord Wilkins, Kansas City, for respondent.
   EAGER, Judge.

This case was transferred here upon our order from the Kansas City Court of Appeals. Its opinion is reported at 350 S.W.2d 133. In that opinion the court affirmed a judgment for plaintiff in the sum of $6,000. The suit is one against a husband and wife for the breach of an alleged real estate contract. The instrument was dated April 8, 1959, and it recited the parties as “Lawrence E. Lewis and Ethel I. Lewis (Husband and Wife)” as sellers and “Austin & Bass Builder Inc.” as buyer; it was signed only by Lawrence E. Lewis, individually, and Kenneth Bass, individually. The property involved consisted of lots “9 thru 28 and 30 thru 34, Woodridge Subdivision, Independence, Missouri.” The contract recited a price of $31 per front foot, the making of a $1,000 deposit with sellers, and it contained the following provisions (among others) : “ * * * the balance to be paid in the following manner: Four Thousand and No/100.Dollars $4,000.00 cash on delivery of deed as herein provided, and starting of improvements. Balance shall be paid at the rate of $31.00 per front foot at the closing of loan on constructed houses less $200.00 per lot which is the consideration paid in the down payment. The above sale is contingent on the approval of the Federal Housing Administration and all improvements in including streets, water, Gas and Sewers to the property line.

“All deferred payments to be represented by note_, secured by deed of trust or mortgage on above described property containing usual provisions, drawing interest from date of deed on the terms specified above.” The contract was admittedly prepared by Mr. Bass, a layman.

Mr. Lewis had been a builder of houses for 15 years; he had an eighth grade education, and had never attempted to write a real estate contract. His wife assisted to some extent in the business; she usually drew the checks, and also acted as bookkeeper, with some outside help; she had authority to sign checks, although the bank account was carried in the name of “Lawrence E. Lewis, Contractor.” Lewis and his wife owned 40 acres of land at 39th and Noland Road in Independence and from this they had platted the subdivision in question. Bass and his partner Austin heard that Lewis had lots for sale and contacted him in March or early April 1959 on one or more occasions. While there is much controversy, generally, concerning all of their dealings, the parties did agree on a price per front foot for lots to be sold. Lewis testified that they offered to buy ten lots and make a deposit of $200 per lot on 15 more. On April 8, Mr. Bass appeared with the instrument in question which (for convenience but without assumption of validity) we shall call the contract. When Bass testified, he gave little or no explanation of what then occurred, except that the contract was signed; Lewis testified that the instrument did not represent the agreement they had previously discussed, that he so stated, and that he could not understand it; that he merely signed it at the insistence of Bass, who wanted something to show to a loan man who was to examine the property on the next day, and who said that they would get up a new contract within the next week. No one ever presented the contract to Mrs. Lewis for her signature or approval. Bass and Austin formed the plaintiff corporation after the date of the contract, its certificate of authority being dated April 29, 1959; at its first meetings the directors approved this contract. Bass testified that Lewis was told of the pending incorporation during the early negotiations.

After April 8, no new contract was prepared; according to Lewis the whole deal was still uncertain, including the number of lots to be purchased and the mode of payment. Bass had sundry dealings with the FHA, with material men, and loan agencies; he paid a fee on an application for ten FHA commitments; Lewis went with Bass to interview the FHA, and looked over certain “plot plans”; certain engineering work was performed, partly for Bass and partly for Lewis. Bass had some house plans prepared by an architect. Lewis proceeded to put in streets, curbs, sewers, gas and water, incurring very substantial expense, allegedly nearly $30,000. All subdivision expense was paid by Lewis. At the end of July, no further specific steps had been taken to consummate the contract, either by tenders of additional money, a deed of trust or a warranty deed, and no abstract of title had been furnished. On July 30, Lewis contacted Bass concerning a letter from the FHA setting up certain additional requirements for the subdivision. At that time Lewis evidently told Bass that he might have to refinance the tract with a new deed of trust (there being an existing balance of some $5,000 on an old one); Bass testified that Lewis then said that if he did so he could not give clear title. Thereupon plaintiff’s counsel wrote a letter to Lewis threatening suit. Further conferences were held in August, sundry proposals discussed, but nothing agreed upon. A controversy developed or continued, over the mode of payment and the security to be given, pending final FHA loans on completed houses. Bass testified that Lewis, and Mrs. Lewis, then required all cash. Mrs. Lewis denied taking any part, and Lewis testified that he only required a down payment and “a mortgage on the lots until they are paid for.” The vagueness of the whole deal is well illustrated by Bass’s testimony that, — “ * * * we would only sign a deed of trust on the first ten lots because that(s) all we would get title to when we took over.” He so testified despite the fact that the contract for which plaintiff now seeks damages called for the sale and conveyance of 25 lots. . On July 30, Mrs. Lewis, at her husband’s direction, had mailed a check to Bass returning the $1,000 deposit, but she had forgotten to sign the check. This check was brought by Bass or Austin to one of the August conferences, was apparently left on the table in a restaurant, and was subsequently delivered to Lewis by the restaurant manager. This suit was filed in September. On January 10, 1960, after suit, a $1,000 cashier’s check was sent by the Lewises to Bass, which was endorsed by the plaintiff corporation and deposited in its account. Incidentally, the ten FHA commitments issued for Bass were transferred by him to other lots which he subsequently purchased, and were there used. He testified that each of those lots cost him $610 more than the price fixed in the present contract.

Lewis did refinance the entire 40 acres with a loan of $40,000. His testimony and his theory was and is that he could always release any lot upon payment to the mortgagee of $1,250, which he did on some lots for his own purposes; also, that he was and had always been willing to convey the lots upon the down payment called for and a deed of trust on all lots conveyed. Apparently one chief bone of contention was that plaintiff could not get an FHA loan if there was a pre-existing deed of trust on the property. Under the view we take it will not be necessary to go into all the claims of performance and nonperformance, pro and con. So far as Mrs. Lewis was concerned, plaintiff relied solely upon the theory of agency and ratification, — i. e., that her husband was her agent in signing the contract, that she knew (or soon learned) of it, that she was present at some of the discussions, and that she deposited or drew the checks involved.

The amended petition was in three counts. All were based solely upon the written contract. The first, reciting that defendants had failed and refused to perform the contract, sought the return of the $1,000 deposit with interest, apparently by way of rescission. That count was dismissed at the trial, plaintiff having already accepted the return of the deposit. The second count recited an offer to sell the lots for $58,587.-21, the execution of the written contract (attached as an exhibit), performance by plaintiff, the failure of defendants to perform by conveying the property, and plaintiff’s special damages. The third sought punitive damages for the allegedly malicious and fraudulent acts of defendants in placing a $40,000 deed of trust on the tract after plaintiff had expended effort and money in reliance on the contract, thus allegedly rendering performance impossible. The trial court refused to submit any issue of punitive damages. The case was tried and submitted solely upon the theory of a joint liability of both defendants, — based upon Lewis’s agency in the execution of the contract and knowledge and ratification by Mrs. Lewis thereafter.

Sundry points are briefed, and controverted, in the submission here. Most of these will not require our consideration. The evidence showed, the contract recited, and the whole theory of trial was that the title to this property was held by defendants as an estate by the entirety. It is entirely clear that a deed by one of two tenants by the entirety conveys nothing. Mahen v. Ruhr, 293 Mo. 500, 240 S.W. 164; Samuel v. Frederick, Mo., 262 S.W. 713; Baker v. Lamar, Mo., 140 S.W.2d 31 ; Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395. Indeed, it has been said that a deed by one of the tenants alone is void. Mahen, Samuel, supra. If one tenant may not bind the other by a deed it is obvious that one may not bind the other by a sole contract, unless the contract is authorized by the other in the form required by law.

The Missouri Statute of Frauds, § 432.-010, RSMo 1959, V.A.M.S. provides in part: “No action shall be brought * * * upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.” Defendants here denied in their answers that Mrs. Lewis signed the purported contract (which amounts to a denial of its validity), and objections based on the Statute of Frauds were raised at the trial at every available opportunity. Under these circumstances defendants may rely upon the statute. Jones v. Linder, Mo., 247 S.W.2d 817, 819. In fact, plaintiff has not made any issue of this fact.

There has been no contention by plaintiff that there were memoranda in writing, signed by Mrs. Lewis, which would satisfy the statute. As stated, plaintiff relies on her supposed knowledge, acquiescence and ratification. The law seems clear in Missouri that the statute means just what it says when it requires the authority of an agent in a “contract for the sale of lands” to be in writing. Johnson v. Fecht, 185 Mo. 335, 83 S.W. 1077, 1079; Wussler v. Peterson, Mo., 270 S.W.2d 12; Hunt v. U. S. Fire Insurance Co. of New York, 239 Mo.App. 625, 193 S.W.2d 778; State ex rel. Sears, Roebuck & Co. v. Haid, 332 Mo. 701, 60 S.W.2d 41; Bokern v. Loud, Mo.App., 108 S.W.2d 1049. And these cases clearly indicate that the same rule, i. e., the necessity of a writing, applies to a ratification as well as to an original authorization.

The Court of Appeals has held that the “agreement to convey, though invalid to affect the title to real estate in whole or in part, may yet be valid between the parties as a basis for the recovery of damages * * * ” We cannot assent to that statement. The following Missouri cases lay down the rule that if a contract is insufficient to support a suit for specific performance because in contravention of the Statute of Frauds, a party thereto cannot recover damages for its breach. Jones v. Linder,. Mo., 247 S.W.2d 817, 825; State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322, 325; Jesse v. O’Neal, 364 Mo. 333, 261 S.W.2d 88, 90; Gipson v. Fisher Bros. Co., Mo.App., 204 S.W.2d 101, 105; Marshall Realty Co. v. Zerman, Mo.App., 296 S.W. 1057. In State ex rel. Fletcher v. Blair, supra, this court said, at 178 S W.2d loc. cit. 325: “If the statute of frauds did apply to the oral two-year lease then the plaintiff tenant could not recover compensatory damages for the second year, either on the theory of breach of contract or in tort. On the contract theory this Court and two of the Courts of Appeals have ruled that when a contract is voidable under the statute of frauds, and therefore unenforceable by specific performance in equity, the alternative is not open to the injured party to sue for breach of contract. * * * ” And in Jones v. Linder, supra, this court also said, at 247 SW.2d loc. cit. 825: “The second count of plaintiffs’ petition was for damages for breach of the verbal. contract. Certainly, if the verbal contract may not be specifically enforced, the statute also bars any action by plaintiffs to recover damages for a breach of that contract. * * * ”

On this vital question plaintiff urges, in substance, that “equity will not permit the statute of frauds to act as a shield for fraud * * citing: Jones v. Linder, Mo., 247 S.W.2d 817; Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46, 69 A.L.R. 1; Gates Hotel Co. v. C. R. H. Davis Real Estate Co., 331 Mo. 94, 52 S.W.2d 1011; Bick v. Mueller, 346 Mo. 746, 142 S.W.2d 1021; Gipson v. Fisher, Mo.App., 204 S.W.2d 101. The first and most obvious answer to this argument is that this suit is not one in equity, and is not claimed fo be such. Our Code does not eliminate the basic distinctions between law and equity. Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473; Kesinger v. Burtrum, Mo.App., 295 S.W.2d 605. The two counts on which plaintiff went to trial were solely for damages. Of the cases cited, we observe the following: Carlin, was a suit in equity to declare and establish the status of a child under an oral contract of adoption, and the court held that the failure to adopt and the treatment of the child constituted a fraud. Gates Hotel Company, was a suit in equity to establish a trust ex maleficio upon a widely recognized ground of equitable jurisdiction. Biclc, involved the specific performance of an oral contract to convey real estate in return for the rendition of personal services during the grantor’s life, which agreement had been fully performed by the proposed grantee. Gipson, merely held that where a landowner had availed himself of the Statute of Frauds to oust a tenant working on shares, the latter might maintain a suit in quantum meruit for his services. In that case it was specifically recognized that a suit might not be maintained for a breach of the contract which was unenforceable under the Statute. That rule was also specifically recognized in Jones v. Linder, Mo., 247 S.W.2d 816, the other case cited. In Jones, the plaintiffs sought specific performance of an alleged contract for the sale of real estate or, in the alternative, damages. The defendant wife had refused to sign a deed. All relief was denied there except restitution, and the court merely held, in substance, that equity will sometimes intervene to prevent a “gross injustice or deepseated wrong,” which is necessarily “something more than the failure of one to live up to his oral agreement,” or “the loss of prospective ownership * * *_» These cited cases fall within recognized grounds of equity jurisdiction. The plaintiff here has elected to sue for damages. No question of fraud or unfair dealing was submitted to the jury, and we-rule on the case as tried and submitted. We do not mean to indicate, however, that the facts in this case would support a suit in equity for specific performance. See, for instance, the requirements stated in Jones v.-Linder, supra.

Defendants suggest that the contract, signed by the husband alone, was void even as to him. See, Mahen v. Ruhr, 293 Mo. 500, 240 S.W. 164; Samuel v. Frederick, Mo., 262 S.W. 713. So far as the effectiveness of the contract is concerned, that is true. We are not specifically concerned with that question, for the case was tried and submitted solely on the theory of a joint liability for damages, and we hold that there could be none. In view of our ruling it would be superfluous to consider the sundry other questions briefed, one of which is that the contract was so uncertain in its terms and so lacking in mutuality as to be void.

The judgment is reversed with directions to enter judgment for the defendants.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri at the Relation of Rev. Will A. SESSIONS, Jr., et al., Appellants. v. H. Roe BARTLE, Mayor of Kansas City, Missouri, et al., Respondents.
    No. 49191.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.

      John J. Manning and Robert S. Fousek, Kansas City, for appellants.
    Keith Wilson, Jr., City Counselor, Robert A. Meyers and John J. Cosgrove, Associate City Counselors, Kansas City, for respondents.
   STORCKMAN, Judge.

This is a mandamus action which seeks to compel the City of Kansas City through its council and duly authorized officials to •direct an election for the purpose of submitting to the electorate an ordinance proposed by initiative petitions. The plaintiffs are five electors of Kansas City nominated as a Committee of Petitioners and authorized to file the initiative petitions in accordance with § 443 of the Charter of Kansas City. The defendants’ answer alleged that the initiative measure was an appropriation ordinance which made no provision for new revenue to defray the increased expenditures in violation of § 51, Art. Ill, of the 1945 Constitution of Missouri, V.A.M.S., and that the initiative ordinance, if adopted, would deprive the city council of control over city finances and would disrupt budgetary plans in violation of § 89 of Art. 4 of the Charter of Kansas City. The plantiffs filed a motion for judgment on the pleadings and the cause was submitted to the court on the pleadings and the exhibits annexed. The judgment rendered on November 7, 1961, denied plaintiffs’ motion for judgment and dismissed plaintiffs’ petition with prejudice as prayed for in defendants’ answer. The plaintiffs appealed.

The sufficiency of the initiative petitions and the correctness of the procedures in obtaining and presenting them are not controverted. The plaintiffs’ principal contention on appeal is that the proposed initiative ordinance does not violate § 51 of Art. Ill because it is not an appropriation ordinance.

The proposed ordinance would amend the Administrative Code of Kansas City, Missouri, 1956, by repealing §§ 221, 222, 223, 231, and 247 of the Classification and Compensation Plan and by enacting in lieu thereof new sections of like number and subject matter. The sections of the proposed ordinance classify positions in the city service and establish standard basic salaries for the various positions. The services dealt with are the Fire Fighting Group of the Fire Fighting Service, the Fire Motor Operator Group of the Fire Service, the Fire Personnel Instruction Group of the Fire Service, the Building Safety Group of the Inspectional, Investiga-tional and Examining Service, and the Electrical Operator Group of the Skilled, Semiskilled and Unskilled Labor Service. In general the proposed ordinance sets up qualifications for the various classifications usually based on length of service and in some instances establishes the number of normal working and on-duty hours per week with provisions for overtime compensation, the length of shifts, and the time of change. In all instances the proposed ordinance fixes the standard basic salary for all classes of positions established.

In conclusion the ordinance provides that “the changes in the salary schedules herein provided shall take effect at the beginning of the first payroll period following the enactment date of this Ordinance.” Appendix C attached to the plaintiffs’ petition is a copy of the resolution of the city council declaring its intention not to pass the proposed measure. The resolution describes the proposed ordinance as “increasing the salaries of the various classifications of employees in the Fire Department” and declares that “the granting of such increases in salaries would require large appropriations of money in excess of that now appropriated for the payment of salaries”.

The pertinent portion of § 51 of Art. Ill reads as follows: “The initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby, or for any other purpose prohibited by this constitution.” The nature of the initiative activity sought to be prevented by this constitutional provision appears in the remarks of the Committee on Initiative and Referendum of the 1943-1944 Constitutional Convention, File No. 4, p. 6, as follows: “This section is entirely new. The restriction upon the use of the initiative for appropriation of money is suggested mainly by the cogent reasoning of the Supreme Court of Missouri in the case of Moore v. Brown, decided by that court on November 12, 1942, reported in 350 Mo. 256, 165 S.W.2d 657. In that case, the dangerous business of making appropriations by initiative, without regard to other constitutional requirements, or even attempting to set forth the full text of the many constitutional requirements which would be abrogated or rendered nugatory, is generally condemned.” The measure condemned in the Moore case would have earmarked $29,000,000 of state funds annually to pay monthly grants to designated incapacitated persons over 65 years of age and in aid of dependent children.

The plaintiffs assert that the proposed ordinance is not an appropriation ordinance in violation of § 51 because the proposal does not fix the salary of a specific person or a certain number of persons and does not obligate the city to employ anyone. They rely chiefly upon State ex rel. Mulvoy v. Miller, 315 Mo. 41, 285 S.W. 504, and State ex rel. Hart v. City of St. Louis, 356 Mo. 820, 204 S.W.2d 234. The Mulvoy case involved an interpretation of the Charter of the City of St. Louis. An initiative ordinance fixing the salaries of employees in the city fire department was held not to be an appropriation ordinance within the meaning of a charter provision requiring such an ordinance to be recommended by the Board of Estimate and Apportionment. The ordinance also was held not to violate other charter provisions. The Hart case was a mandamus action to compel the payment of salaries of employees of the magistrate courts of the City of St. Louis as fixed by an ordinance enacted by the Board of Aldermen of the city. The court held that it was not necessary to have the approval of the Board of Estimate and Apportionment because an appropriation ordinance was not involved. Both of these cases were decided before § 51 of Art. Ill became effective and were limited to a consideration of the provisions of the city charter.

The defendants cite and rely solely upon Kansas City v. McGee, 364 Mo. 896, 269 S.W.2d 662, which held that an initiative petition proposing an ordinance creating a firemen’s pension plan was an appropriation ordinance and in violation of § 51 of Art. Ill of the 1945 Constitution because it did not create and provide new revenues to defray the cost thereof. There, as here, the contention was made that the proposed ordinance in and of itself did not appropriate any funds. In disposing of this contention, this court stated, 269 S.W .2d 662, 666 [2] : “It is true that the proposed ordinance does not in and of itself appropriate the money to carry out the pension plan but it does not leave any discretion to the City Council. The ordinance says the Council shall appropriate the amount asked for by the trustees administering the pension plan. The ordinance has the same effect as if it read that a sum necessary to carry out its provisions as certified by the trustees shall stand appropriated * * *. Any other interpretation would permit a violation of the plain mandate of Sec. 51 of the Constitution, supra.” The decision also ruled that the constitutional provision, § 51 of Art. Ill, applies to municipal ordinances. 269 S.W. 2d 662, 666 [3],

The plaintiffs’ arguments that the ordinance does not obligate the city to employ anyone and does not fix the number of employees or the salary for a specific purpose has no validity under the circumstances. The City of Kansas City is obliged to maintain its fire department and all employees within the coverage of the ordinance would be affected. The proposed ordinance establishes job classifications and wage schedules and provides when the changes in the salary schedule shall take effect. Appendix C attached to plaintiffs’ petition asserts that the proposed ordinance would increase the salaries and would require large appropriations of money in excess of that now appropriated for the payment of salaries. The defendants estimate that the proposed ordinance would require an additional appropriation of approximately $500,000 to pay the increased salaries. On the authority of Kansas City v. McGee, we hold that the ordinance in question is an appropriation ordinance within the meaning and in-tendment of § 51 of Art. Ill and is fatally defective in failing to provide new revenues out of which to pay the increased salaries.

Our holding that the proposed initiative ordinance violates § 51 of Art. Ill renders it unnecessary for us to decide whether the ordinance is in conflict with § 89 of Art. 4 of the Charter of the City of Kansas City.

For the reasons stated, the judgment is affirmed.

All of the Judges concur.


author: WESTFIUES, Chief Justice. EAGER, Judge HYDE, Judge

text:
    MERCANTILE TRUST COMPANY, a Corporation, as Executor of the Last Will and Testament of Harriet Elizabeth Russell, deceased; and as Testamentary Trustee Under the Last Will and Testament of Harriet Elizabeth Russell, deceased, and Senter M. Jones, Jr., as Successor Co-Trustee of said Last Will and Testament, Plaintiffs-Respondents, v. Mrs. Ingram C. SOWELL, Mrs. James A. Crutchfield, Sr., Defendants-Appellants, Mrs. Burt M. Jack, Sr., Defendant, Harriet Elizabeth Jack, a Minor, Defendant-Appellant, Russell Minton Jack, Burt Maskill Jack, Frank Ellsworth Jack, II, Defendants, Harry Ellsworth Jack, Defendant-Appellant, Webster Groves Presbyterian Church, a Corporate Body, Defendant-Respondent, Washington University, a Missouri Corporation, Defendant-Respondent, Mercantile Trust Company and Senter M. Jones, Jr., Executors of the Estate of Reuben James Russell, Defendants-Appellants.
    No. 48001.
    Supreme Court of Missouri, En Banc.
    July 16, 1962.
    Dissenting Opinion July 20, 1962.
    Motion for Rehearing Denied Sept. 10, 1962.

      Harold A. Thomas, Jr., and Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for Mercantile Trust Company and Senter M. Jones, Jr., Executors, Estate of Reuben James Russell, Dec’d.
    Forrest C. Donnell, St. Louis, for defendant-appellant, Harry Ellsworth Jack.
    David Y. Campbell, St. Louis, for appellant, Harriet Elizabeth Jack.
    Richard S. Bull and Carter, Bull & Baer, St. Louis, for respondent, Washington University.
    John A. Arnold, St. Louis, for respondent, Webster Groves Presbyterian Church.
    Lloyd E. Boas, St. Louis, for appellants, Mrs. Ingram C. Sowell and Mrs. James A. Crutchfield; Musick, Peeler & Garrett and E. Leroy Tolies, Los Angeles, of counsel.
   WESTFIUES, Chief Justice.

Plaintiffs Mercantile Trust Company, a corporation, as executor of the last will and testament of Harriet Elizabeth Russell, deceased, and as testamentary trustee under her will, and Senter M. Jones, Jr., as successor co-trustee of said will, filed this, ai declaratory judgment, action in the Circuit Court of St. Louis County, Missouri, seeking the construction of the will.

The principal question involved is whether by the terms of the will the testatrix made a disposition of her entire estate or whether she died intestate in case certain beneficiaries under a trust created by the will were living at the expiration of the trust.

The trial court entered a decree to the effect that the testatrix by her will made a disposition of her entire estate. From this, judgment, certain defendants appealed.

The appealing defendants are Mrs. Ingram C. Sowell, Mrs. James A. Crutchfield, Sr., Harriet Elizabeth Jack, a minor by her guardian ad litem, and Harry Ellsworth Jack. Defendants Mercantile Trust Company and Senter M. Jones, Jr., appealed as. executors of the estate of Reuben James Russell, deceased, who was the husband of the testatrix. Defendants who did not appeal are Mrs. Burt M. Jack, Sr., Russell' Minton Jack, Burt Maskill Jack, and Frank Ellsworth Jack II. The other defendants, Webster Groves Presbyterian Church and! Washington University, a Missouri corporation, are respondents.

The testatrix’ maiden name was Harriet Elizabeth Jack. She was horn on January 14, 1876. She married Reuben James Russell on May 25, 1898. No children were born of this marriage. She died on April 15, 1955. Her husband died on February 11, 1957. At the time she executed the will in question, March 17, 1949, her father, her mother, and all six of her brothers were deceased. Testatrix had no sisters. Her heirs at law were her husband and two nieces and four nephews. The defendants Mrs. Ingram C. Sowell and Mrs. James A. Crutchfield, Sr., were her nieces. Defendants Russell Minton Jack, Burt Maskill Jack, Frank Ellsworth Jack II, and Harry Ellsworth Jack were her nephews.

Respondents Webster Groves Presbyterian Church and Washington University contend that they are the residuary legatees and entitled to the entire estate after the termination of the trust created by the will. Appellants, on the other hand, contend that the above-named respondents are the residuary legatees only in the event that the four persons named as beneficiaries die prior to ten years after the death of Reuben James Russell. If respondents are correct in their position, other questions presented by appellants automatically drop out of the case. We are of the opinion that respondents’ position is well taken.

(It should be noted here that the Mercantile Trust Company, a corporation, is the same Trust Company named in the will as the Mercantile Commerce Bank & Trust Company, a Missouri corporation. The change in name occurred after the will was executed and before this action was filed. It should be further noted that the parties, during the trial, agreed that the correct spelling of testatrix’ name is “Harriett” and not “Harriet” as it sometimes appears in the record.)

Directing our attention to the will, we shall state the substance thereof except that we shall set forth in full those provisions which we deem to have a bearing on the questions under consideration. By the first article, testatrix revoked all prior wills made by her. By the second and third articles, testatrix provided for the payment of all her obligations, such as debts, taxes of all kinds, and any promises she had made, such as contributions or gifts to charities. Whatever disposition testatrix made of her estate, it was done by articles four and five which we set forth in full as follows:

“FOURTH: I give and bequeath absolutely and forever all of my household furniture and equipment, rugs, books, pictures, silver, glass, china and other household goods, jewelry, clothing and other personal effects and all automobiles and automobile equipment owned by me at the time of my death to my husband REUBEN JAMES RUSSELL, if he shall survive me; if he shall not survive me or if he shall die at or about tha same time by reason of any common accident, calamity or other disaster then the above articles shall be sold by my Executors and the proceeds thereof shall become a part of my residuary estate to be disposed of as hereinafter provided.

“FIFTH: All the rest, residue and remainder of my estate of every name, nature and description and wherever situated, I give, devise and bequeath to my Trustees, in trust nevertheless, to invest and from time to time reinvest the same, and to collect the rents, income, issues and profits thereof and therefrom, and after first deducting all expenses attendant upon the execution of the trust to hold, pay over or apply the principal and income thereof and therefrom as follows :

“(a) To hold such principal during a trust term to be measured by the life of my husband, REUBEN JAMES RUSSELL, if he shall survive me.
“(b) Until the expiration of such trust term to pay over or apply the entire net income thereof as nearly as possible in equal quarterly installments to my husband, REUBEN JAMES RUSSELL, as long as he shall live.
“(c) Upon the death of the survivor of my said husband and me to divide the principal or so much thereof as shall then remain, into five (5) equal shares and to set apart and hold in trust one such equal share for each of the following:
“(1) The Webster Groves Presbyterian Church, Webster Groves, Missouri, or its successors.
“(2) MRS. INGRAM C. SOWELL (nee FRANCIS JACK), 1369 Hyde Street, San Francisco, California.
“(3) MRS. JAMES A. CRUTCH-FIELD, SR. (nee HELEN JACK), 935 Olive Avenue, Coronado, California.
“(4) MRS. BURT M. JACK (nee ROXANA B. MINTON), 30 North lola Drive, Webster Groves, Missouri.
“(5) MISS HARRIETT ELIZABETH JACK, daughter of RUSSELL M. JACK, 835 Pine Tree Lane, Webster Groves, Missouri.
“(d) To hold the equal shares so set apart for each of the above named for a trust term extending for a period of ten (10) full years after the death of my husband, REUBEN JAMES RUSSELL, or ten (10) full years after my death if he shall predecease me.
“(e) During each such trust term to pay over or apply the net income accruing on each such share to the beneficiary for whom such share is held in trust in as nearly equal quarterly installments as practicable.
“(f) In the event any of the individual beneficiaries above named shall predecease me, or shall die after the creation of the trust for her benefit, the allocation of income to such person or persons shall cease; the total number of beneficiaries shall be deemed to have been reduced and the income and principal allocated to said deceased beneficiary or beneficiaries shall be prorated and added to the principal of the trusts for the then surviving beneficiaries; and the other provisions and limitations with relation to the remaining beneficiaries shall remain in force and effect; except that if all of the individual beneficiaries above named shall predecease me or shall die within the ten (10) year period and if my husband shall then be dead, the trust shall cease and terminate and my Trustees shall pay over the property then constituting such trust absolutely and forever and free from any trust, as follows :
“(1) Ninety (90) per cent to Washington University of St. Louis, Missouri, to be used by the Corporation of the University (the Board of Directors) as they shall deem best, but it is my wish that the principal of the fund be kept intact to be known as the ‘Reuben James and Harriett Elizabeth Russell Fund’ and the income used only for the support and maintenance of the University and primarily for the Medical Research Department. This is not an absolute limitation on the use of this fund nor on the income thereof but is simply an expression of my wishes.
“(2) The remaining ten (10) per cent to the Endowment Fund of the Webster Groves Presbyterian Church.
“(3) In making the division between the two residual beneficiaries above named, my Trustees shall divide the principal and accumulated income of the trust estate, insofar as is practicable, in kind.”

By articles six, seven, eight, nine, ten, eleven, and twelve, testatrix instructed the trustees as to the manner of dealing with the trust property. The instructions were very detailed. The principal of the estate was to be kept inviolate except for the needs of her husband. We quote in full article eleven because we deem it has a bearing on the question of the intention of testatrix. It reads:

“ELEVENTH: I hereby nominate and appoint my husband, REUBEN JAMES RUSSELL and the MERCANTILE COMMERCE BANK & TRUST COMPANY, a Missouri Corporation, of St. Louis, Missouri, to be the Executors and Trustees under this, my Last Will and Testament. If my said husband should predecease me or if he should not at any time be able or willing to serve as Co-Executor or Co-Trustee, I nominate and appoint SENTER M. JONES, JR. to act as Co-Executor and Co-Trustee. If I am predeceased by my husband, REUBEN JAMES RUSSELL, and by SENTER M. JONES, JR., I will and direct that the MERCANTILE COMMERCE BANK & TRUST COMPANY shall act as sole Executor and I will and direct that a Co-Trustee to act with the MERCANTILE COMMERCE BANK & TRUST COMPANY shall be appointed, in writing, by the then Chancellor of Washington University. Such successor Executor or Trustee shall have all the rights and powers herein granted to the Executor and Trustee originally named, and I will and direct that none of my Executors or Trustees shall be required to give any bond or security as such.”

The duty of the courts in construing wills is well stated in 95 C.J.S. Wills § 590, pp. 737-743, to be: “The chief object and purpose of construction of a will is to discover and carry out the intent of the testator as expressed in the will, and this is the prime duty of the court, and its sole function or province. In other words, the intention of the testator is the prime consideration, controlling factor or element, or pole star to guide the court to which the problem is presented in the construction of every will.” A rule which may aid us further in this case may be found in 95 C.J.S. Wills § 593, pp. 779, 780. It reads: “In construing a will, the general testamentary scheme may be considered as bearing on testator’s intention, and the will should always be interpreted to carry out as far as possible the general scheme or intention as shown by the entire document. The dominant idea pervading a will must control, and in case of doubt a will should be construed in favor of a general or primary intention.”

All of the above statements of the law taken from 95 C.J.S. are supported by numerous citations of cases from many states including Missouri.

Looking at the will and giving due consideration to all parts thereof, the question before us is, did the testatrix by her will intend to dispose of all of her property? We are of the opinion that she did. To hold otherwise would mean that testatrix did not intend that the Webster Groves Presbyterian Church and Washington University should be residuary legatees unless a most unlikely event was to occur, that is, that all four of the individual beneficiaries named in (c) of the fifth article should die within ten years after the death of her husband. That time would be February 11, 1967, the husband having died on February 11, 1957. That these four individuals, all younger than testatrix or her husband (and one not yet 21 years of age), may die prior to 1967 is a possibility but highly improbable. That testatrix should have provided for such an unlikely event evidences an intent on the part of testatrix not to overlook any eventuality.

Let us now closely scrutinize the provisions of the will. We note that in article four testatrix bequeathed her personal effects, such as household goods, to her husband absolutely. However, in the event he should not survive testatrix, then the property was to be converted into cash and “become a part of my residuary estate to be disposed of as hereinafter provided.” (Emphasis supplied.) Looking at the fifth article, we note subparagraph (f) (3) where the testatrix instructed her trustees to the effect that “(3) In making the division between the two residual beneficiaries above named, my Trustees shall divide the principal and accumulated income of the trust estate, insofar as is practicable, in kind.” (Emphasis supplied.)

The “two residual beneficiaries above named” could only be Washington University and the Webster Groves Presbyterian Church. What property were the trustees directed to distribute to the two named beneficiaries? The answer is “the principal and accumulated income of the trust estate.” (Emphasis supplied.) When were the trustees to make this distribution ? It is our opinion that this should be done at the termination of the trust created by the fifth article of the will and that the termination date was to be ten years after the death of the testatrix or the death of her husband, in case he survived the testatrix, except and unless all individual beneficiaries of the trust should die prior to the expiration of ten years, in which event, the trust should then immediately cease and the trust estate be divided between the two residuary legatees.

By a provision in article eleven, supra, the testatrix directed that in the event her husband and Senter M. Jones, Jr., predeceased her a successor co-trustee should be appointed by the then Chancellor of Washington University. Would the testatrix have made that provision if she had intended by her will that Washington University would be a beneficiary only upon the happening of an event most likely not to occur ? We think not. In our opinion, the testatrix had in mind that Washington University would eventually get title to 90% of the trust property and therefore the University should have some control of the management of the property in case her husband and Senter M. Jones, Jr., predeceased her. It may be further noted that in (f) (1) of article five, whereby 90% of testatrix’ property was given to Washington University, the testatrix expressed the wish that such property should be used “primarily for the Medical Research Department.” We think that this direction indicates that in the mind of the testatrix she had given the University the bulk of her estate.

So far, we have found that testatrix clearly indicated in the fourth article, in fact she stated, that her residuary estate would be disposed of by her will. In the last paragraph of article five, she directed that the trustees should divide her estate between “the two residual beneficiaries above named.” Then, in the eleventh article, she directed that under certain circumstances Washington University should have the right to name a co-trustee to manage the property of her estate. All of these expressions are consistent with but one conclusion, that is, that the testatrix fully intended to bequeath to the Webster Groves Presbyterian Church and to Washington University her entire estate after the trust ended. In reaching this conclusion, we have considered the meaning of such terms as “residuary estate,” “residual beneficiaries,” “residuary legatee,” etc. 77 C.J.S. p. 308; 96 C.J.S. Wills § 1097, p. 818. Further, in determining the intent of the author of a will, parts of the will may be considered to explain other parts. 95 C.J.S. Wills § 620 b, p. 864.

There were two opinions written in this case in Division Two of this Court. Neither received a carrying vote. In one of these opinions a portion of (f) of article five of the will was transposed and set in with (d) of article five. Transposition of sentences and words may be made in arriving at the intention of the author of a will. See 95 C.J.S. Wills § 607, p. 808, where we find the rule to be: “In order to preserve a testator’s expressed intention the court may transpose words, expressions, or sentences in his will; but not where the language is plain and unequivocal and where to do so would give it a different meaning, or create an intention which the testator had not expressed. There must be something in the will which makes it certain that the expressed intention of the testator necessitates alteration of the language used.” See also Mercantile Commerce Bank & Trust Co. v. Binowitz, Mo.App., 238 S.W.2d 893, l. c. 899(11).

We adopt, without quotation marks and with some modification in language, the following portion of one of the opinions prepared in Division Two dealing with the transposition of a part of paragraph (f) into paragraph (d). It reads as follows: Standing alone, paragraph (d) of Article Fifth establishes ten years as the duration of the trust in question. Nevertheless, all parties seem to agree that the term of the trust may he shortened by virtue of the clause in the latter part of paragraph (f), which reads as follows: “except that if all of the individual beneficiaries above named shall predecease me or shall die within the ten (10) year period and if my husband shall then be dead, the trust shall cease and terminate.” This clause dealing with the termination of the trust and modifying the ten-year period is found in a paragraph otherwise dealing with the allocation and distribution of income to the four individual beneficiaries. While it is proper to limit the ten-year term by the clause quoted, it is not proper to lift out this clause alone to qualify and modify paragraph (d) without taking with it the remainder of paragraph (f) which deals with the disposition of the corpus upon the termination of the trust. All of the provisions on termination of the trust and distribution of the principal must be read together.

It can be demonstrated that the ambiguity which causes the present controversy results primarily from the arrangement of the subject matter of the will and particularly the separation of the provisions dealing with the duration of the trust and the disposition of the residue upon its termination. By transposing and combining the last portion of Article Fifth (f) and repunctuating in two instances, we have the following result (the portion transposed is placed in italics in order to make the transposition more readily apparent) :

“(d) To hold the equal shares so set apart for each of the above named for a trust term extending for a period of ten (10) full years after the death of my husband REUBEN JAMES RUSSELL, or ten (10) full years after my death if he shall predecease me, except that if all of the individual beneficiaries above named shall predecease me or shall die within the ten (10) year period and if my husband shall then be dead, the trust shall cease and terminate and my Trustees shall pay over the property then constituting such trust absolutely and forever amd free from any trust, as follows:
“(1) Ninety (90) per cent to Washington University of St. Louis, Missouri, to be used by the Corporation of the University (the Board of Directors) as they shall deem best, but it is my wish that the principal of the fund be kept intact to be known as the ‘Reuben James and Harriett Elizabeth Russell Fund’ and the income used only for the support and maintenance of the University and primarily for the Medical Research Department. This is not an absolute limitation on the use of this fund nor on the income thereof but is simply an expression of my wishes.
“(2) The remaining ten (10) per cent to the Endowment Fund of the Webster Groves Presbyterian Church.
“(3) In making the division between the two residual beneficiaries above named, my Triestees shall divide the principal and accumulated income of the trust estate, insofar as is practicable, in kind.
“(e) During each such trust term to pay over or apply the net income accruing on each such share to the beneficiary for whom such share is held in trust in as nearly equal quarterly installments as practicable.
“(f) In the event any of the individual beneficiaries above named shall predecease me, or shall die after the creation of the trust for her benefit, the allocation of income to such person or persons shall cease; the total number of beneficiaries shall be deemed to have been reduced and the income and principal allocated to said deceased beneficiary or beneficiaries shall be prorated and added to the principal of the trusts for the then surviving beneficiaries ; and the other provisions and limitations with relation to the remaining beneficiaries shall remain in force and effect.”

The will could be read in the same way without transposition, but in the form set out above there would be little room for argument that the testatrix did not intend the residue to go to the University and the Church regardless of when the trust terminated. Granted that a very cautious draftsman, in order to avoid any possible chance of ambiguity, would even in this transposed form insert some such phrase as “then upon termination of the trust whenever and however caused,” my Trustees shall pay over, etc. But not all legal drafstmen are of the same capacity and then, too, “Homer himself hath been observed to nod.” Such human shortcomings are what give rise to the rules of construction noted here, as well as Sec. 474.430, RSMo 1959, V.A.M.S., requiring the courts to give effect to “the true intent and meaning of the testator.”

Not many authorities are cited in this opinion. It has been well stated that “precedents are of less value in the construction of wills than in any other field of inquiry.” Thompson v. Smith, Mo., 300 S.W.2d 404, l. c. 406(2). However, we have read quite a number of authorities, including 57 Am.Jur., Wills, in particular Secs. 1153, 1158, and 1159, as well as the sections of C.J.S. pertaining to the interpretation of wills and many cases, including the following Missouri cases: Gehring v. Henry, 332 S.W.2d 873; Ussher v. Mercantile Trust Co., 328 S.W.2d 699; Lang v. Estorge, 242 S.W.2d 50; Mercantile Commerce Bank & Trust Co. v. Binowitz, Mo.App., 238 S.W.2d 893; Lutheran Altenheim Society of St. Louis v. Younghouse, 365 Mo. 39, 275 S.W.2d 361.

In construing the will of the testatrix in this case, we have not rendered the will unnatural in its result. In fact, the opposite is true. Furthermore, by such an interpretation, effect is given to all parts of the will. In other words, it renders the will and all of its provisions a harmonious whole. No clause is rendered meaningless nor one inconsistent with another. Most important, such a construction reflects the true intention of the testatrix which after all is said and done should be the primary object to be attained.

We are of the opinion that the trial court decided the issues presented to him correctly.

The judgment is affirmed.

STORCKMAN, LEEDY and DALTON, JJ., concur.

EAGER, J., dissents in separate opinion filed.

HOLLINGSWORTH, J., dissents.

HYDE, J., dissents and concurs in separate dissenting opinion of EAGER, J.

EAGER, Judge

(dissenting).

I find that I am unable to concur in the reasoning or the result of the foregoing majority opinion. Actually, there is little or no controversy about the principles involved in the construction of a will and they have been repeated so often that it is hardly necessary to set them out here. The difficulty arises in applying those principles to a concrete situation.

It seems wholly ineffective to me to say that the testatrix here must be presumed to have intended to dispose of all her property; naturally, the ordinary person who prepares and executes a will intends to do so. The real question is — did she do it or not? And the mere reconstruction of a supposed intent will not supply a complete omission in the dispositive provisions of a will.

In my opinion there is in this will a complete absence of any provision disposing of the principal of the residue, either to the beneficiaries named in subparagraph (c) of Article Fifth or in subparagraph (f), — except, of course, for the conditional disposition provided for in subparagraph (f) to the University and the Church. In other words, there is a complete absence of such disposition in case any of the individuals named in subparagraph (c) survived the ten-year period following the death of the husband of testatrix. This, I feel, results in an inescapable intestacy as to the entire residue of the estate. The result may be unfortunate, but we are not empowered to rewrite the will. Under Section 468.150, RSMo 1949, V.A.M.S. (now § 474.320) every will is required to be in writing and duly authenticated, except nuncupative wills (§§ 468.160, 468.170, Id., now § 474.340). The judicial function of construing the will a testator makes does not authorize a court to make a new will or an equitable distribution of the estate. If upon an examination of the will it is found unambiguous and a term used therein is clearly expressed and has a well defined meaning, exposing testator’s intent, there is no occasion for resort to the canons of construction or extrinsic evidence that might have some bearing upon an unexpressed intention of the testator. St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344, 349 [2] ; American Red Cross v. Hannibal Nat. Bk., 360 Mo. 297, 228 S.W.2d 679, 682[3]; Thomas v. Higginbotham, Mo., 318 S.W.2d 234[2, 3], and cases infra. “ ‘However clearly an intention not expressed in the will may be proved by extrinsic evidence, the rule of law requiring wills to be in writing stands as an insuperable barrier against carrying the intention thus proved into execution.’ ” Lang v. Estorge, Mo., 242 S.W.2d 50, 53 [1, 2], and cases cited. Approved in Gehring v. Henry, Mo., 332 S.W.2d 873, 878[12, 13]; In re Fowler’s Estate, Mo., 338 S.W.2d 44, 48[2],

The clause in ¶[ (f) of Article Fifth, reading, so far as involved: “except that if all of the individual beneficiaries above named [referring to ¶[ (c) ] * * * shall die within the ten (10) year period [referring toff (d)] * * *, the trust shall cease and terminate and my trustees shall pay over the property” to respondents, is in professional language, is unambiguous and clearly creates an interest subject to a condition precedent. This is true whether the bequest to respondents be treated as a contingent remainder or a contingent execu-tory bequest. The quoted provision conveys and creates an interest in the property to respondents only upon the happening of the event, dubious under the facts involved, of all four individual beneficiaries being dead at the termination of the ten-year period. The property does not vest in respondents if one or more of said beneficiaries be then living. See, among others, Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187, 191 [8, 9], 125 A.L.R. 531; Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949, 951, 952, 49 L.R.A., N.S., 605; Lewis v. Lewis, 345 Mo. 816, 136 S.W.2d 66, 71 [7, 8]; 33 Am.Jur., Life Estates, etc., § 68; 31 C.J.S. Estates § 71.

Testatrix is presumed to have known the law and the legal effect of the language she used. Thomas v. Higginbotham, Mo., 318 S.W.2d 234, 237[3], If she made mistakes, we cannot rewrite her will. Gehring v. Henry, Mo., 332 S.W.2d 873, 878.

The presumption against intestacy often relied upon has definite exceptions and it “cannot control directions plainly to the contrary, or enlarge dispositions beyond their clear meaning.” Watson v. Watson, 110 Mo. 164, 171, 19 S.W. 543, 545. It is stated in Wills, 57 Am.Jur. § 1159, that it “will not prevail where the language of the will, fairly construed, * * * is insufficient to carry the whole estate.” See 95 C.J.S. Wills § 615, p. 840.

If we were to speculate upon the intent of the testatrix, we might suggest that it would seem wholly unreasonable for her to have cut off absolutely at the end of ten years the four chosen representatives of all her relatives, especially when three of them are said to have then been well along in years. It would be much more reasonable to assume, and speculate, that she intended to continue the income to those of the four who survived the ten years until all had died, with the principal then to go to the University and the Church. This sort of speculation merely shows, however, that something vital was omitted from the will, that we cannot be sure what it was, and that the courts cannot supply the defect.

The reference in the principal opinion to “two residuary beneficiaries” appears in paragraph numbered 3 of subparagraph (f), following the provision for the conditional payment of principal to the University and the Church in case all the individual beneficiaries named in (c) have died within the ten-year period. Consequently, it adds nothing to the other provisions of the will. It also seems that the use of specific words providing that the University and the Church should receive the principal “if all of the individual beneficiaries above named shall predecease me or shall die within the ten (10) year period,” would by normal rules of construction exclude the transfer of the principal to them if all of the individual beneficiaries did not so die. Otherwise, the words would be meaningless. But they are there, and we cannot ignore them. The fact remains that the will thus provided in express terms that the principal should go to the University and the Church if the individual beneficiaries all died within ten years and that meaning cannot be changed by transposition of words and phrases.

In conclusion, we note again as generally applicable, the cases of Lang v. Estorge, Mo., 242 S.W.2d 50, and Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634, but it would be more or less pointless to discuss-cases in detail in this dissent. It is my view that this will did not contain a mere ambiguity, but that there was a complete omission of any provision disposing of the principal of the residue under the existing facts, and that in supplying this omission we-are rewriting the will; and that such is not our function, however desirable the result may be.

Under the circumstances, it would be fruitless to discuss the other points raised by certain appellants, for the point decided in the majority opinion makes these wholly immaterial. We do note, however, that the-views expressed in this opinion would also obviate any ruling that the beneficiaries, named in subparagraph (c) of Article Fifth; should receive the principal of the residue as an “equitable defeasible fee,” for there appears to be no conveyance of the principal to them either equitable or otherwise-In this opinion we have incorporated certain; excerpts from the opinion written by Commissioner Bohling in Divison Two, without quotations. For these reasons I respectfully dissent.

HYDE, Judge

(dissenting).

I respectfully dissent from the rulings of the principal opinion herein and concur in the dissenting opinion of EAGER,. J., but would add the following comments, because it seems to me that the most clearly expressed intent indicated by the will1 of Harriett Elizabeth Russell, considered' as a whole in the light of the surrounding circumstances, is that the corpus of the trust estate (except the part designated for the church) should go to the named individual beneficiaries of the trust surviving at the end of the ten-year trust period. I cannot find any intent for any corpus to go to Washington University unless all of the individual beneficiaries, should predecease testatrix or die within the ten-year trust period. The will as. written clearly says so and as rearranged in the principal opinion still says so.

I find the clearest expression of intent in the following provisions of paragraph Fifth: (c) “to divide the principal ■■■ * * jnto five (5) equal shares and to set apart and hold in trust one such equal share for each of the following: (naming them)”;

(e) providing for payment of income •only during the trust term;

(f) “In the event any of the individual beneficiaries above named shall predecease me, or shall die after the creation of the trust for her benefit, the allocation of income to such person or persons shall cease; the total number of beneficiaries shall be deemed to have been reduced and the income and principal allocated to said deceased beneficiary or beneficiaries shall be prorated and added to the principal of the trusts for the then surviving beneficiaries * * ⅜.” (All emphasis ours.)

It seems to me that these references to the interest of the individual beneficiaries in the principal indicate an intention that the principal was to go to them or to the survivors of them at the end of the trust term. This intent is further indicated by paragraph Tenth providing that “no beneficiary of any trust estate herein created shall have any right, power or authority, at any time, either directly or indirectly, to sell, assign, transfer, mortgage, pledge or otherwise anticipate any income from or any principal of any equitable interest in any of said trust estate, nor shall any of the income or principal of any said trust estates be subject to any debt or obligation of any beneficiary or any judgment against any beneficiary, nor shall any of said income or principal of any said trust estates be subject to any process or procedure or proceedings at law or in equity to subject the interest of any beneficiary therein to any claim of any creditor or claimant.” Certainly if the beneficiaries were to have no interest in the principal of this trust, as held by the principal opinion herein, there was no reason whatever to so mention such an interest in the principal.

Looking at the surrounding circumstances, it appears that testatrix was the youngest of seven children, all the others being deceased when the will was made in 1949 and only two of them leaving children surviving at that time. The children of one brother, Mrs. Sowell and Mrs. Crutchfield (two of the trust beneficiaries), were S3 and 55 years old when the will was made. The other brother left four adult sons and his widow, Mrs. Burt M. Jack, one of the trust beneficiaries, who was 59 years old when the will was made. The fourth individual beneficiary is the granddaughter of Mr. and Mrs. Burt M. Jack, who was named for testatrix, and she was not yet six years old when the will was made. Thus both surviving branches of the family were represented by the trust beneficiaries and it seems most unreasonable to me to attribute to testatrix an intent to give these three older women (for whom testatrix apparently believed income for care and support would be required after she and her husband died) income for only ten years and then leave them in old age with nothing if they survived the trust term. Likewise it seems unreasonable to attribute to her an intent to leave her minor grandniece (her namesake) with nothing, at the end of the ten-year trust term, when she would likely most need funds for education and support. It seems most reasonable to me that testatrix would not expect all of the three older women to survive the ten-year trust term but intended those who did to have their share of the corpus; and therefore she expected and intended that most or all of the corpus would go to her young grandniece. Paragraph Fifth of her will shows that she considered the principal of each of the five shares to be a separate trust and in subparagraph (f) she said that in case of death of individual beneficiaries “the principal allocated to said deceased beneficiary or beneficiaries shall be prorated and added to the principal of the trusts for the then surviving beneficiaries.” Why would she thus mention principal if only income was involved? All of these provisions and circumstances strongly indicate to me an intent that the principal should go to the beneficiaries who survived the ten-year trust term. Unfortunately the will does not directly or positively provide for payment of the corpus to beneficiaries who survive the trust term; but it certainly does not provide for paying it or any part of it to Washington University if any of them do. Therefore, it seems to me that at least we should hold, if any of the individual beneficiaries survive the trust term, testatrix died intestate as to the corpus.


text:
    Joe N. CHAFFIN, Respondent, v. The COUNTY OF CHRISTIAN, Thomas F. Eagleton, Attorney General, and Haskell Holman, State Auditor, Appellants.
    No. 49073.
    Supreme Court of Missouri, En Banc.
    Sept. 10, 1962.

      Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
    Moore, Pettit & Steinle, J. Hal Moore and Walter S. Pettit, Jr., Aurora, for respondent.
   STORCKMAN, Judge.

This is a declaratory judgment action to determine the constitutionality of subdivision 2 of § 48.030, RSMo 1959, V.A.M.S., and the rights of the plaintiff thereunder. The part of the section questioned provides in substance that although otherwise qualified no county of the fourth class shall become a county of the third class until the question is submitted to the people and approved by a majority of the electors at a general election. The amount of the plaintiff’s salary as treasurer of Christian County is dependent on the outcome. In addition to Christian County, the attorney general of Missouri and the state auditor are defendants. The trial court declared subdivision 2 of the statute unconstitutional in accordance with the plaintiff’s contention. The defendants appealed.

Jurisdiction of the appeal is in this court because state officers, as such, are parties and the construction of the constitution of this state is involved. Art. V, § 3, Constitution of Missouri 1945, V.A.M.S.; Marshall v. Kansas City, Mo., 355 S.W.2d 887, 879[1].

The facts are stipulated and establish that the plaintiff began his present term as treasurer on January 1, 1959, at which time Christian County was a fourth-class county. On January 28, 1959, the defendant Haskell Holman, acting in his capacity as state auditor, sent a letter to the plaintiff and other officials of Christian County advising them that the county had had an assessed valuation in excess of $10 million for five successive years and under the provisions of § 48.030 Christian County had changed from a fourth-class to a third-class county effective as of January 1,1961.

Thereafter, the general assembly enacted House Bill No. 297 effective August 29, 1959, which repealed § 48.030 and enacted another section with the same number. The substantial change in the section was the addition of subdivision 2. On January 14, 1960, the defendant Holman by letter notified the plaintiff and other county officials of Christian County of the change in the law and advised them that pursuant to an opinion of the attorney general Christian County would not become a county of the third class until the new classification was approved by the voters in accordance with subdivision 2 of the new statute. A proposal to change Christian County from the fourth to the third class, submitted to the voters at the general election in November 1960, was defeated. There were 1,488 votes in favor of the proposal and 3,109 votes against it.

On December 14, 1960, plaintiff filed an “Officer’s Budget Estimate” in the office of the county clerk of Christian County specifying his salary at $3,000, which would have been the salary of the treasurer of Christian County as a third-class county. The county court declined to accept this estimate and approved and filed a budget designating plaintiff’s salary at $2,700, which was on the basis of Christian County being a fourth-class county. On May 1, 1961, plaintiff was paid his salary for the months of January, February, March, and April 1961, based on an annual salary of $2,700. The plaintiff submitted a bill to the county court for additional salary for these four months figured on the basis of a third-class county which bill was rej ected by the county court

In due course, the plaintiff filed suit for a declaratory judgment and the defendants filed their joint answer. A stipulation of facts was filed and the cause was submitted to the court on the pleadings and the facts stipulated. The trial court rendered its judgment on July 31, 1961, declaring that subdivision 2 of § 48.030, RSMo 1959, V.A.M.S., was unconstitutional, that Christian County became a county of the third class on January 1, 1961, and that the plaintiff was entitled to back salary as treasurer of a third-class county from January 1, 1961.

The defendants first contend that the amended petition should have been dismissed because the plaintiff did not plead or prove a claim upon which relief could be granted in that no justiciable controversy was shown to exist. The petition is consistent with the facts stipulated and will be treated as if amended to embrace the issues made by such facts. S.Ct. Rule 55.54, V.A.M.R.

Section 527.020, RSMo 1959, V.A. M.S., provides among other things that any person whose rights, status or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute and obtain a declaration of rights, status or other legal relations thereunder. Since there was a bona fide dispute between the parties with respect to the constitutionality of the statute on which plaintiff’s claim for compensation as county treasurer depended, a jus-ticiable controversy existed and the plaintiff was entitled to a determination of the validity of the statute under the Declaratory Judgments Act. St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289; Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282; Maxwell v. Andrew County, 347 Mo. 156, 146 S.W.2d 621. Under this assignment the appellants also assert that the evidence was insufficient to overcome the presumption of the validity of the statute and to support the judgment. The determination of the specific constitutional questions presented renders separate treatment of this general allegation unnecessary.

In the course of implementing the 1945 Constitution, the general assembly divided the counties of the state into four classes “for the purpose of establishing organization and powers in accordance with the provisions of Section 8, Article VI”. Laws 1945, pp. 1801-1802. The classification section of the act became § 48.020 of our statutes. It classifies the counties on the basis of assessed valuation as follows: Class 1. All counties having an assessed valuation of $300 million and over. Class 2. All counties having an assessed valuation of $70 million and less than $300 million. Class 3. All counties having an assessed valuation of $10 million and less than $70 million. Class 4. All counties having an assessed valuation of less than $10 million.

Another section of the same act provided that no county should be deemed as moving from a lower to a higher class or from a higher to a lower class until the assessed valuation was such as to place it in such other class for five successive years. Laws 1945, p. 1802. This became § 48.030, RSMo 1949, V.A.M.S., to which subdivision 2 was added in 1959. The pertinent portions of § 48.030, RSMo 1959, V.A.M.S., with the new provision in italics, read as follows:

“48.030. Method of determining classes. 1. For the purpose of determining the initial class of the various counties, the assessed valuations of the respective counties as set forth on pages 333 to 400 of the ‘Journal of the Board of Equalization of the State of Missouri for the Year Ending December 31, 1944’ shall be used. Hereafter no county shall be deemed as moving from a lower class to a higher class or from a higher class to a lower class until the assessed valuation of the county is such as to place it in the other class for five successive years. * * *

“2. In addition to the required increase in valuation for five successive years, and the certification by the state equalizing agency, no county of the fourth class shall become a county of the third class until the question is submitted to a vote of the people at a general election, and a majority of the electors voting on the question shall vote in favor thereof. The change from one classification to another shall become effective at the beginning of the county fiscal year following the general election at which the approval of the people is obtained.”

Subdivision 2 was the only part of the statute declared unconstitutional by the trial court. One of the grounds was that it violated § 8 of Art. VI, a new section first appearing in the 1945 Constitution, which reads as follows:

“Provision shall be made by general laws for the organization and classification of counties except as provided in this constitution. The number of classes shall not exceed four, and the organization and powers of each class shall be defined by general laws so that all counties within the same class shall possess the same powers and be subject to the same restrictions. A law applicable to any county shall apply to all counties in the class to which such county belongs.”

Section 7 of Art. IX of the 1875 Constitution, which provided for the classification of cities and towns, was carried over without change into the 1945 Constitution as § 15 of Art. VI. Except for the last sentence of each section, the language used in §§ 8 and 15 of Art. VI of the 1945 Constitution are very much the same. The last sentence of § 15 provides that the general assembly shall also make provision by general law whereby any city, town or village existing by virtue of any special law or local law “may elect to become subject to, and be governed by, the general laws relating to such corporations.” Section 8 contains no suggestion of choice by a county of the class to which it will belong. It provides instead that: “A law applicable to any county shall apply to all counties in the class to which such county belongs.”

In urging that the statute does not violate § 8, the defendants rely primarily upon decisions construing § 15 of Art. VI. In State ex rel. Halsey v. Clayton, 226 Mo. 292, 126 S.W. 506, the classification statute provided that all cities having a population in excess of 100,000 should be cities of the first class. A later statute in another article provided that all second-class cities having a population between 75,000 and 150,000 should hold an election on a day specified to determine if they should become a city of the first class. St. Joseph was the only city in Missouri having a population between 75,000 and 150,000, but its population was also in excess of 100,000. The court held that the constitutional provision for the classification of cities did not prohibit the general assembly from prescribing different terms and methods of organizing for cities of different populations although they were of the same class, and that the 1909 act did not repeal the general classification statute and was not unconstitutional for any of the reasons urged including a contention that it created a fifth class of cities. In Barnes v. City of Kirksville, 266 Mo. 270, 180 S.W. 545, Kirksville had adopted the commission form of government under statutes permitting cities of the third class the choice of alternative forms of city government. The court held that the act did not alter the preexisting classification of Kirksville and did not create a fifth class of cities but merely permitted such cities to select an alternative form of government for administrative purposes. Counties of any particular class may likewise be provided with a choice of alternative forms of government. Art. VI, § 9, 1945 Constitution. These and other cases cited construing § 15 do not involve the same sort of governmental relation or type of statute with which we are here concerned and do not deal with the distinctions in the constitutional provisions. Such cases do not control the decision of the question here presented.

Counties are legal subdivisions of the state. Art. VI, § 1. They are subdivisions of the state for governmental, political, and public purposes. Abernathy v. Dennis, 49 Mo. 468, 470; Barton County v. Walser, 47 Mo. 189, 202; Clark v. Adair County, 79 Mo. 536, 537. The intent and purpose of § 8 of Art. VI must be determined primarily from the language used and in connection with other related constitutional provisions. Prior to the adoption of the 1945 Constitution, there was no constitutional provision with respect to classification of counties or limitation upon the number of classes which the legislature might create. As a result, numerous classifications were made for different purposes. The purpose of the constitutional provision was to simplify and make more effective the organization and operation of the counties. It provides that the provisions for the organization and the classification of counties shall be by general laws and that the organization and powers of each class shall be defined by general laws.

A “class” as used in this constitutional provision denotes “a group, set, or kind marked by common attributes or a common attribute”. To classify is “to group or segregate in classes that have systematic relations usually founded on common properties or characters”. Webster’s Third New International Dictionary. The fundamental concept is that of common attributes, common properties, or common characters. The constitutional provision limited the classes of counties to four, and the general assembly provided that the common attribute, property, or character, should be the assessed valuation of the counties subject to classification. Four classes were accordingly created as provided in § 48.020. Section 48.030 deals with the method of establishing and maintaining the classes. Initially, the counties were divided on the assessed valuation as set forth in the Journal of the Board of Equalization of Missouri for the year ending December 31, 1944. Taking note of inevitable change and possible fluctuation in assessed valuations, the statute then provided that no county should be deemed to have moved from a lower to a higher class or from a higher to a lower class until the assessed valuation was such as to place it in the other class for five successive years. Thus far the attribute in common was preserved and the integrity of the four classes was maintained.

The enactment of subdivision 2 of § 48.030 added a variable that disrupted the common denominator of the classes. It added an element foreign to the concept of assessed valuation in providing that no county of the fourth class should become a county of the third class until the move was approved by the voters of the county. The defendants urge that this provision “merely establishes one additional requirement for the passage of a fourth class county to a third class county”. What we are concerned with is the character and legal effect of this additional requirement. Under it, the progression of a fourth-class county no longer depends upon the general law but on a favorable vote of the county electors. An unfavorable vote puts a fourth-class county in a status or category which is no longer strictly fourth class or third class as prescribed in § 48.020. Under the new statutory provision, the common attribute of assessed valuation is no longer controlling. In this instance, Christian County has the assessed valuation of a third-class county but retains the designation and is permitted and required to exercise the powers and be subject to the restrictions of a fourth-class county. This perverts the entire scheme of classification and in effect creates an additional class of counties in violation of § 8, Art. VI, 1945 Constitution.

The inability of Christian County to fit into either the fourth or third class of counties on the common and otherwise controlling basis of assessed valuation becomes more apparent by a comparison with other counties in the third class. According to the 1961-1962 Official Manual of the State of Missouri, Christian County has a population of 12,359, an assessed valuation of $15,803,612, and is in the fourth class. On the other hand, there are nine counties which have a smaller assessed valuation than Christian County but are classified as counties of the third class, such as, Dade, population, 7,577, assessed valuation, $13,-458,342; Madison, population, 9,366, assessed valuation, $13,692,514; Mercer, population, 5,750, assessed valuation, $13,-469,198; Putnam, population, 6,999, assessed valuation, $13,845,820; St. Clair, population, 8,421, assessed valuation, $13,-227,722; Scotland, population, 6,484, assessed valuation, $14,354,094; Warren, population, 8,750, assessed valuation, $14,-641,466; Webster, population, 13,753, assessed valuation, $14,139,640; and Worth, population, 3,936, assessed valuation, $12,-801,526. The statute provides no opportunity or option for these counties to revert to the fourth class. Moniteau, Osage, and Sullivan are third-class counties which have slightly greater assessed valuations. Fifteen other third-class counties have assessed valuations greater than Christian County but considerably less than $20 million. If there are sound reasons why Christian and other counties similarly situated should remain in the fourth class, a change in the line of demarcation between the fourth and third classes will accomplish such purpose. A provision such as subdivision 2 would also raise questions as to how a reluctant fourth-class county could become a second or first-class county if its assessed valuation became such as to justify it.

Proceedings of the 1943-1944 Constitutional Convention appear to confirm our determination of the meaning and purpose of the section in question. The report of the Committee on Local Government — No. 9 of the Constitutional Convention contains this statement with respect to the section that became § 8 of Art. VI: “The provision is designed to permit a more flexible system of county government rather than one uniform system as now required. It will permit the Legislature to formulate a more simple set-up of government for counties of relatively low valuation.” File No. 11, p. 6. In presenting the section to the Constitutional Convention for perfection, Dr. William L. Bradshaw, the committee chairman, stated: “The Committee considers that the provisions for classification of counties are very important because * * * we have basically the same fundamental frame work of government in the smallest rural county and in the largest urban one. It remains, and in some cases you have too much governmental machinery, and in other cases you have to build a huge super structure on a very small foundation. We thought a provision permitting the classification of counties would enable the Legislature to work out a more suitable governmental set up for counties, various types of counties in the state. That’s the purpose of the Section.” Debates of the Constitutional Convention, p. 1700. In presenting the Committee’s report pertaining to alternative forms of county government, which is § 9 of Art. VI, Dr. Bradshaw pointed out the relationship between §§ 8 and 9 and further stated: “The purpose of the section [9] is that different or more simplified forms of government might be devised by the Legislature and submitted for adoption to the voters in any county interested.” Debates of the Constitutional Convention, p. 1628. State on inf. Taylor v. Kiburz, 357 Mo. 309, 208 S.W.2d 285, 288, in considering the force and effect of § 8 of Art. VI of the Constitution, called attention to the legislative' declaration that “the classification provided in this act is the foundation upon which the whole structure of county government and laws relating thereto rests.” Laws 1945, p. 1803, § 4.

The trial court further held that subdivision 2 of § 48.030 violated Art. Ill, § 1, of the Constitution, in that the statutory provision constituted a delegation of legislative power which empowered the electors to classify the county and that the provision was a special law in violation of Art. Ill, § 40, par. (21)y and Art. Ill, § 41, of the Constitution. These assignment present substantial and interesting questions which we need not and do not decide, solely because we have held that subdivision 2 of § 48.030 is unconstitutional on the broad ground that it violated § 8 of Art. VI. Our determination of the other constitutional issues would add nothing to the holding that under the valid statutes presently existing Christian County is a county of the third class and that the plaintiff is entitled to be paid his salary as treasurer of a third-class county.

For the reasons stated, the judgment of the trial court is affirmed,

All concur.