author: CULLEN, Commissioner.

text:
    CITY OF MT. VERNON, Kentucky, Appellant, v. Grant BANKS et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Allen & Clontz, Mt. Vernon, for appellant.
    Fritz Krueger, Somerset, for appellees.
   CULLEN, Commissioner.

The City of Mt. Vernon appeals from a judgment of the Rockcastle Circuit Court invalidating an ordinance of that fifth-class city. KRS 81.010. The ordinance in question fixed a rate schedule for customers of the city-owned water plant. The ordinance also imposed a sewer charge rate in a sum equal to 50% of the total monthly water bill.

The city attacks the judgment of the lower court on the basic ground that the evidence does not warrant the determination of the lower court that the rates are unreasonable.

The questioned ordinance was adopted August 16, 1962, and by its terms increased the water rates to all customers, whether inside or outside of the limits of Mt. Vernon. The ordinance made the increased water rates effective in October, 1962, but provided that the sewer rate increase should not be applicable until the completion of a contemplated new municipal sanitary sewer system.

The ordinance generally declares that the city, through its board of council, has determined “that the promotion and preservation of the public health, safety and general welfare of said City and of all its citizens and inhabitants require the construction and installation of a new municipal sanitary sewer system, including a treatment plant, outfall lines, lift stations and appurtenant facilities * * The ordinance further recites that Mt. Vernon is in the process of planning to finance the construction and installation of the new municipal sanitary sewer system. It is indicated by the ordinance that a revenue bond issue in the sum of approximately $380,000 is contemplated, and that a loan agreement with the Housing and Home Finance Agency of the United States Government has been obtained. The ordinance also declares that it is desired by the city that additional revenues be provided from the existing municipally owned water system in order to enable the city to provide certain needed extensions and improvements to the system.

The intention of the city to combine the ownership, operation and maintenance of the present water system and the proposed sanitary sewer system is proclaimed by the terms of the ordinance in question. The ordinance declares that all such activity shall be done as prescribed in KRS, Ch. 58.

Appellees attacked the ordinance in this class action. CR 23.01. Some of the ap-pellees reside within the limits of Mt. Vernon and others live nearby, and all are customers of the city water system. The complaint avers that for 27 years Mt. Vernon has operated its water system on rates less than those proposed in the attacked ordinance. It is alleged that the lower rates have been adequate for the efficient maintenance and operation of the water system and retirement of bonded indebtedness previously incurred incident thereto.

The appellees assert that the proposed rates are unreasonable and exorbitant. In their complaint it is said by appellees that the proposed rates will produce revenue at least 75% in excess of revenue needed for efficient operation and maintenance of the water system. The trial court made a finding of fact in which he concluded that the new water rate would increase’ the actual water charges by 65%.

The principal basis upon which appellees attack the ordinance, and the apparent basis of the trial court’s decision, is that the city has not adequately adopted specific plans for a sewer project. Appellees point out that the new water rates are in contemplation of producing revenue to finance a sewer system, when, in fact, the city has not irrevocably committed itself legally to provide such a sewer system.

The additional argument is urged that approximately one-third of the water users of Mt. Vernon reside outside the corporate limits of the town and will not he served by a sewer system. Although it is conceded that' such individuals will not pay any sewer charge, it is claimed that they will substantially subsidize the sewer system by reason of the increase in their water bills.

We are unable to agree with the decision of the court below; neither can we accept the arguments and reasons advanced by appellees. That a municipality in Kentucky may own and operate a water system is not debated, but it is recognized by the parties to this action. It is likewise established that a Kentucky city may operate a sewer system and that the sewer operation may be merged with the operation of the water system. City of Hazard v. Salyers, 311 Ky. 667, 224 S.W.2d 420.

The evidence reflects that the city needs certain improvements to the existing water facilities. In the course of his findings of fact and conclusions of law the trial court adverted to the evidence concerning these needs by commenting, “Under the evidence the court cannot say that the new apparatus recommended by Smith is necessary to operation of the water plant.” The trial court reasoned that since the challenged ordinance did not make reference to these suggested improvements, the city had “waived their necessity.”

The trial judge determined what he deemed the fair market value of the water system and then applied a 4% factor to that value as representative of the fair return due to the city from the water company operations. It is our opinion that this was not an appropriate approach to the determination of the reasonableness of the rates in this case, particularly in view of the fact that the city showed the necessity for making needed improvements to the water system which could not be financed on the old rate schedule.

We start from the premise that the municipality chárged with the duty of operating and maintaining the public service is cloaked with the necessary flexibility of discretion required to fulfill its functions. In the operation of a water plant a municipal corporation is not under the jurisdiction of the Public Service Commission. KRS 278.010(3); McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197. It may not be doubted, however, that activities of such municipalities in this area may be reviewed by the courts to test whether such actions are clearly, palpably and grossly unreasonable. McQuillin, Municipal Corporations, Vol. 12, 3rd Ed., § 34.160.

The appellant contends that the water rates as fixed by the ordinance enjoy the prima facie presumption of reasonableness. 43 Am.Jur., Public Utilities and Services, § 186; Shirk v. Lancaster, 313 Pa. 158, 169 A. 557, 90 A.L.R. 688. Appellees, without conceding the point, contend they have carried the burden of establishing the rates to be unreasonable. We do not agree.

It is shown that the water rate will be as follows:

“$3.30 base, Minimum charge for 2,000 gallons or less.
$ .90 for next 8,000 gallons, $ .90 per 1,000 gallons.
$ .70 per 1,000 gallons for next 90,000 gallons.
All over 100,000 $ .50 per 1,000 gallons.”
The former rates were:
“RATE
$2.00 base
$ .75 per thousand
$ .50 “
GALLONS
2,000 and under
next 8,000 gallons
All over 10,000 gallons”

Other applicable rates for commercial users are provided in both the old and new rate schedules. It appears of record that the water system was built about 1937, and that the rates have not changed since that time. The city has been able to provide palatable water in sufficient quantity; the revenues have been enough to reduce the indebtedness and reflect a small annual profit. The trial court concluded as fact that the old rates produce approximately $22,000 gross income annually, and that an annual operating expense of $13,000 would be incurred, thus leaving an annual excess of $9,000. It appears these figures do not reflect any reserve for depreciation, and it is plain that the improvements reasonably appearing necessary to the water system may not be provided by means of the old rates. We consider it fundamental that prudent management contemplates contingencies and conserves assets needed for normal growth, maintenance and improvements.

There is no showing that the new rates are out of harmony with rates charged in similar communities in Kentucky. Neither is it demonstrated that the new rates will inordinately burden users of water. In short, apart from appellees’ expressed desires to continue receiving water at the lower rate, there is no showing that the new rates are confiscatory, unduly burdensome, discriminatory, economically unsound, or unreasonable. Whether the trial court or this court would have decided to adopt the new rates is not the question. That discretion is properly vested in the city authorities as a legislative function; our role is to examine the city’s activity as to whether it has so far abused its discretion as to make its actions invalid. Hatch v. Fiscal Court of Fayette County, Ky., 242 S.W.2d 1018; Pritchett v. Marshall, Ky., 375 S.W.2d 253.

Neither do we deem it dispositive of this case to suggest, as do the appellees, that the city might not actually construct the sewer system. Rather, we indulge the assumption that the city will implement its expressed intent to provide a sewer system. When and if such failure to go forward on the part of the city becomes a reality will be the time to determine the reasonableness of the water rates in light of conditions which might then prevail.

The judgment is reversed with directions to enter judgment sustaining the validity of the ordinance.

MOREMEN and MONTGOMERY, JJ., dissenting.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    ROARING FORK COAL COMPANY and Coal Operator's Casualty Company, Appellants, v. Hershel C. WILDER, the Workmen’s Compensation Board, and the Subsequent Claim Fund, Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Glenn W. Denham, Middlesboro, for appellants.
    J. C. Helton, Pineville, for appellee Hershel C. Wilder.
   CLAY, Commissioner.

This is an appeal from a judgment confirming an award of the Workmen’s Compensation Board which required the employer to pay benefits to the employee on the basis of total permanent disability. The employer contends that by reason of a preexisting injury a substantial portion of the employee’s claim should have been charged against the Subsequent Claim Fund.

In June, 1961 the employee suffered a back injury in a coal mine accident. Sixteen years before he had a similar accident resulting in a compression fracture of a lumbar vertebra.

Pursuant to KRS 342.121 the Board appointed an orthopedic specialist to examine the employee. He reported that the prior injury had resulted in permanent disability of approximately 10 percent to the body as a whole. The subsequent injury, which is the basis of this claim, he estimated to have caused 20 percent permanent disability to the body as a whole. He concluded that a combination of these disabilities had impaired the employee’s occupational capacity -so as to cause 100 percent permanent disability.

It is contended the Board, in requiring the employer to pay compensation benefits for 100 percent disability, ignored the provisions of KRS 342.120 and 342.121. We agree.

Taking the last statute first, section (4) thereof provides that an award shall conform to the findings and conclusions in the physician’s report so far as restricted to medical questions. In Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88, we held that a physician’s report under KRS 342.121, as to medical questions involved, is conclusive if neither party files exceptions thereto. None were filed in this case. Clearly the physician found both a pre-existing injury and a pre-existing disability, and, in combination with the subsequent injury, a disability in excess of the two percentages added together. With these findings, we do not know on what basis the Board could charge the total disability to the employer.

KRS 342.120(3) provides that if two compensable injuries result in additional permanent disability which is greater than that, which would have resulted from the subsequent injury alone:

“ * * * the employer shall be liable only for the degree of disability which would have resulted from the latter injury' or occupational disease had there been no pre-existing disability or dormant, but aroused diseased condition.”

In Alva Coal Corporation v. Ealy, Ky., 367 S.W.2d 833, we held the Subsequent Claim Fund was chargeable with the degree of disability in excess of that caused by the mathematical addition of the two disabilities and that the employer is only liable for the amount of disability arising from the subsequent injury upon which the claim is based.

The judgment is reversed with directions to remand the case to the Workmen’s Compensation Board for the entry of an award in conformity with KRS 342.120.


author: ARTHUR T. ILER, Special Commissioner.

text:
    FLEMING COUNTY BOARD OF EDUCATION et al., Appellants, v. Martha V. Anna HALL, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Richard L. Hinton, Flemingsburg, for appellants.
    Marvin W. Suit, Flemingsburg, for ap-pellees.
   ARTHUR T. ILER, Special Commissioner.

This is an appeal from a judgment of the Fleming Circuit Court construing the language of a deed as creating a “determinable fee”. The judgment also held that a lien created by KRS 162.200 was only as good as the title to the property offered as security and subject to the terms of that title.

There is no controversy as to the facts which are in essence the following:

In 1925, P. G. Hall, now deceased, and his wife sold appellant, Fleming County Board of Education, land located in Flem-ingsburg adjacent to the public colored school and being an area which separated the white from the colored sections of town. The deed of conveyance is typical in form to deeds in general use except for the following language:

“It is also expressly agreed as a part of the consideration for the said property that it is not to be sold to anyone, white or colored for residence purposes and that the said land shall remain a part of The Colored School Property so long as the colored school is maintained where it is now located. In case this part of the consideration is violated, then and upon that contingent the property herein conveyed, together with all improvements thereon (if any) shall immediately revert to the grantors, and the right, title and interest of the grantee shall forthwith determine.”

The grantee used the land as a part of the colored school grounds until 1959 when the school system was integrated and the colored children were placed in other facilities with the white children. Since then the colored school was closed, shut down and abandoned and neither building nor grounds have been used by anyone since.

On January 10, 1962, appellant Fleming County Fiscal Court voted to sell certain school property including the land in question, and to use the money derived therefrom to retire bonds and pay interest on bonds secured by the property and requested the school Board to approve the sale of such abandoned property. Thereafter, and pursuant to a resolution of the said Board of Education, the property was advertised to be sold. On the day prior to the date of sale, after first making an unsuccessful attempt to assert their superior claim to the land at a meeting with appellants, appellees filed an action in Fleming Circuit Court asking for a determination of the rights of the parties in and to said real estate.

On June 9, 1962, the trial court adjudged that the deed creates “a determinable fee, which fee, has now, by conduct of the grantees, determined, and title reverted to grantors and their heirs, who are entitled to re-entry”. This judgment was based on the finding that the school no longer is maintained, the property has been offered for sale, showing the clear intention of the grantee to cease using the property for the specified purpose.

The main issue here is by no means one of first impression, as it has long been recognized that a fee simple may also be created with a special limitation. Such an estate is called a determinable fee. When this is done there is an ungranted interest in the grantor, which is a possibility of reverter. We have frequently held that similarly phrased instruments of conveyance create a determinable fee, which terminates in event the land ceases to be used for school purposes. See Board of Education for Jefferson County v. Littrell, 173 Ky. 78, 190 S.W. 465; Williams v. McKenzie, 203 Ky. 376, 262 S.W. 598; Webster County Board of Education v. Gentry, 233 Ky. 35, 24 S.W.2d 910; Fayette County Board of Education v. Bryan, 263 Ky. 61, 91 S.W.2d 990; Webster County Board of Education v. Wynn, 303 Ky. 110, 196 S.W.2d 983; and Barren County Board of Education v. Jordan, Ky., 249 S.W.2d 814.

Having decided that the Board’s title terminated and ownership reverted to the grantors by reason thereof, we believe it unnecessary to elaborate on the other points raised on appeal, all of them being subordinate to the question of title and ownership.

We are, therefore, of the opinion that the trial court was correct in holding as it did and that the land reverted by law to the grantors and their heirs.

It is recommended that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: WILLIAM DIXON, Special Commissioner.

text:
    Morris TARRANTS, Doing Business as Morris Tarrants Associates, Appellant, v. HENDERSON COUNTY FARM BUREAU, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Gwin & Her, Owensboro, for appellant.
    Mitchell & Withers, Henderson, for appellee.
   WILLIAM DIXON, Special Commissioner.

Morris Tarrants, doing business as Morris Tarrants Associates, sued the Henderson County Farm Bureau, a corporation, for architectural services performed of the value of $3,346.23. At the conclusion of the plaintiff’s evidence, the court directed a verdict in favor of the Bureau on the ground that appellant was dealing with a corporation and there was no proof to show that the contract was authorized by the corporation. Tarrants appeals from a judgment in favor of the Bureau.

The Bureau had been considering for some time the erection of an office building at Henderson. James Bethel was an architectural draftsman in Henderson with whom Tarrants had contemplated forming an association. Bethel had been contacted by the members of the Bureau and urged to prepare a preliminary drawing for the office building planned to be built. Bethel informed the Bureau members that he was not a registered or licensed architect and could not file detailed plans for such a building. However, it was agreed he would receive $150 for his work on the preliminary plans. Tarrants was a registered and licensed architect in Kentucky, Illinois, and Indiana. An association by Tarrants and Bethel under the name of Morris Tarrants Associates was formed and an office was set up in Henderson to promote their business as such architects.

During the latter part of April 1960, in the office of the Associates, a meeting was held with some twelve to fourteen members of the Bureau, including Rudy Felty, Secretary-Treasurer, and also a Mr. Green, acting President.

The discussion at the meeting covered the building, space requirements, and architectural fees and services. The fee was to be six per cent of the total contract award. No objections were voiced by any of the group and the architects were instructed to prepare the detailed drawings and receive bids for the erection of the building.

The drawings were prepared, with changes made at the request of different Bureau members. The plans and specifications were submitted for bids to four different contractors that had been suggested by the Bureau. Only two submitted bids. They were opened on July 15, 1960, in the office of the Associates. The lower bid was $87,694. This, evidently, was more than the Bureau had expected to pay and no action was taken toward starting .construction. Subsequent to the opening of the bids, the Associates made changes and adjustments in the plans, hoping to construct a building that would be more acceptable to prospective tenants.

The matter was permitted to linger for two or three months until Tarrants contacted Rudy Felty and demanded payment for the work that had been done. Felty informed him it was a matter that addressed itself to the Bureau, and no action was taken with reference to paying. However, Bethel received a check for $150 “for payment in full for architectural services.” This check which had been promised for the preliminary plans was received by Bethel after the Association had dissolved. The name of the Associates appeared on all of the copies of the plans and specifications which were furnished to the prospective bidders and to the Bureau. None of these plans was ever returned to the Associates.

On November 24, 1961, Tarrants filed a complaint, asking a judgment in the sum of $3,346.23 for the services performed up to the point of advertising and opening the bids. This sum represented by per cent the amount due an architect on the $87,694 building, when plans had progressed to the point where bids could be received for its construction, as recommended by the American Institute of Architects.

The second paragraph of the complaint states: “That the defendant is indebted to the plaintiff in the amount of $3,346.23 for services performed for which the defendant refused to pay.”

It is conceded by appellant that no formal orders or resolutions were passed by the Bureau authorizing the plans to be drawn and no formal action was taken to approve them after they had been drawn. However, no action by any member of the Bureau was ever taken to protest or object to the preparation of the plans.

The Bureau attempts to defeat Tarrants’ claim on the grounds that: (1) No formal resolution was ever passed or approved by the Bureau authorizing the work to be done; (2) the action is based upon an express contract which was not proven; (3)payment of this claim is prohibited by KRS 247.270(2) ; and (4) the payment to Bethel of the $150 was complete payment for their obligation to the Associates.

Bethel had been contacted before the association was formed and that check was in payment for very limited preliminary plans which did not contain a detailed drawing or any of the specifications for the internal structure of the building. The only evidence offered in this record shows that 379 hours were spent in the preparation of the detailed drawings and specifications. A copy was received by the Bureau and the other copies were passed out to the prospective bidders by the Associates at the suggestion and request of the Bureau.

The Bureau’s contention as stated ii. No. 1 above is counter to the rule stated in Catlettsburg & Buchannan Telephone Company v. Bond, 262 Ky. 106, 89 S.W.2d 859: “It is not always essential that corporate action be in pursuance of a formal resolution, for a corporation may he hound by implication, and a ratification, however made, relates back and is equivalent to a prior authority.” In Hall v. Commonwealth, etc., Ky., 331 S.W.2d 272, the Department of Highways was held liable for services performed without formal contract because of ratification by the Department. This appears to be the general rule. See 13 Am.Jur., Corporations, Section 936, page 899, and Section 1106, page 1032. When there is evidence of acceptance of benefits and ratification there is a question for the jury, and the court was in error in directing a verdict. Big Sandy Realty Company v. Stansifer Motor Company, Ky., 253 S.W.2d 601, and Id., Ky., 294 S.W.2d 529.

The second objection is that an express contract is asserted in the complaint which is not proved. We do not understand that appellant’s claim is based on an express contract. It simply states: “That the defendant is indebted to the plaintiff in the sum of $3,346.23 for services performed for which the defendant refused to pay.” In 7 Clay, CR, page 436, Official Form No. 3 simply states: “Defendant owes plaintiff ten thousand dollars according to the account hereto annexed as Exhibit A.” Form No. 5 states: “Defendant owes plaintiff ten thousand dollars for money lent by plaintiff to defendant on June 1, 1950.” It is hard to see how the complaint in this case could be bad in the face of so much similarity to these and other officially-approved complaints. The complaint and statement of account filed with it afforded appellee notice of the essential elements of the claim based on an implied contract. It was unnecessary to allege an express contract. Snowden v. Snowden, 29 Ky. Law Rep. 1112, 96 S.W. 922. It was further unnecessary that appellant prove compliance with KRS 247.-270(2) for the reason hereinafter stated. Pryor v. York’s Ex’r, Ky., 305 S.W.2d 775, is distinguishable on the facts.

At the conclusion of the evidence, appellant attempted to amend his complaint to conform with the evidence which is authorized by CR 15.01, but was prohibited by the court. This would not have taken the Bureau by surprise or prejudiced their rights. In this, the court erred.

The third contention made by the Bureau to resist payment of this claim is that its payment is prohibited by KRS 247.-270(2), governing duties of the Bureau treasurer, who is not a party. It is hard to assume that the Bureau could create a legal debt that it would be prohibited from paying because its payment had not been approved by the Board of Directors or the Executive Committee. Such an interpretation would place the Bureau beyond the power of the courts and the law. This statute relates ■to the method of payment of a liability and not to creation of a liability. It would not bar the payment of a debt that was ordered to be paid by the judgment of a court that had jurisdiction.

There is no merit in the plea of payment based on the payment to Bethel of $150 for preliminary work.

It is our opinion that the judgment should be reversed.

The opinion is approved by the Court and the judgment is reversed with directions to grant a new trial and for proceedings consistent herewith.

PALMORE, J., not sitting.


author: EARL T. OSBORNE, Special Commissioner.

text:
    Alberta Vice ADAMSON, Appellant, v. Emmitt ADAMSON, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    Philip Hargett, Maysville, for appellant.
    James E. Clarkson, Maysville, for appel-lee.
   EARL T. OSBORNE, Special Commissioner.

This is an action by the plaintiff for divorce from the defendant on the grounds of cruel and inhuman treatment. Proof on behalf of the plaintiff shows many and various cruel acts upon the part of defendant from the use of profane and indecent language to cruel beating. Defendant does not deny that the events testified to by plaintiff transpired but merely states that they were not quite as bad as plaintiff testified.

The trial court properly granted plaintiff a divorce and made no finding of fault upon her part but nevertheless declined to award her alimony.

Having granted a divorce without finding fault on her part, the court erred in not awarding alimony. Henderson v. Henderson, Ky., 336 S.W.2d 581, and cases cited therein.

Therefore, it is recommended that the judgment be reversed with directions that appellant be awarded alimony.

PER CURIAM.

The briefs of the parties indicate that the controversy and the judgment principally involve the application of principles stated in Heustis v. Heustis, Ky., 346 S.W.2d 778. Apparently that opinion has been misconstrued as authorizing the denial of alimony unless the parties have by their joint efforts accumulated property during coverture. We dispelled this misconception in Hall v. Hall, Ky., 380 S.W.2d 231 (opinion handed down June 19, 1964).

Since it appears the wife has no estate of her own, an alimony allowance should be made.

The opinion, as supplemented, is approved by the Court and the judgment is reversed in part for consistent proceedings.


author: PALMORE, Judge.

text:
    William S. HENSLEY, Administrator of the Estate of Smith Ball, Appellant, v. Mattie BALL et al., etc., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.

      Wix Unthank, Harlan, for William S. Hensley, Adm’r of Smith Ball Estate.
    Ray O. Shehan, Harlan, Edward Dooley, Middlesboro, for Charlie, Dizney, and Carter Ball, Ethel Ball Gilbert, and J. R. Weiler, Adm’r of Robert Ball Estate.
    William A. Rice, Harlan, for Mattie Ball.
    Joe A. Wallace, Louisville, for Creed Ball, Woodrow Ball, Beatrice Ball Ashurst, and Beatrice Ball Ashurst, Admr’x of Willard Ball Estate.
   PALMORE, Judge.

Smith Ball died intestate at his home in Harlan County on June 2, 1954, at the age of 77. He was survived by his wife, Mattie, and two sets of children by previous marriages. He had amassed a substantial amount of property during his lifetime, and his death was followed by controversy among the survivors. This is a suit by the administrator against the widow and children to recover assets and settle the estate. Each and all of the parties have appealed from various aspects of a partial judgment (made final and ap-pealable as authorized by CR 54.02) determining ownership of the personal property.

One set of the children consisted of Charlie Ball, Dizney Ball, Robert Ball, Carter Ball and Ethel Ball Gilbert. Robert died during the proceeding, and his interest is now represented by an administrator.

The other set of children consisted of Creed Ball, Willard Ball, Woodrow Ball, and Beatrice Ball Ashurst. Willard died during the proceeding and his interest is now represented by an administratrix.

Except that he operated a second hand store and apparently engaged in the business of lending money, the record does not reveal the origins of Smith Ball’s fortune. However, during the later years of his life a goodly part of his income was derived from numerous securities in which he had invested. Over a long period of time he bought and sold many .of these securities in the names of the various children but collected the dividends and interest himself and from time to time gave money to the children to cover taxes they were required to pay on this income. Most of the bonds and stock certificates falling in this category were kept in a safe which belonged to Smith Ball but was located in the home of his son Charlie, and to which Charlie had access. Both Charlie and Dizney worked for their father most of their lives, and their homes were situated close to his home. Dizney handled most of his stock investments and transactions, whereas Charlie kept the safe and, at his father’s direction, endorsed the names of his brothers and sisters (excepting Diz-ney) on dividend checks payable to them and paid the money over to his father. This was done without the specific consent of the other members of the family, but for the most part they were aware that stocks were being bought, sold and exchanged in their names and that Smith Ball was receiving the income.

Several stocks acquired by Smith Ball in the name of his wife, Mattie, were kept by her in a cedar chest at home. Just who endorsed the dividend checks (if any) on this stock is not clear, but presumably the money went -to Smith Ball. Though Mattie regarded the stock as belonging to her husband during his lifetime, after his death she sold it and retained the proceeds, amounting to $5,299.53. Her position now, however, is that all of the securities acquired by Smith Ball really belonged to him, and not to the persons in whose names he caused them to he issued.

For the purposes of this discussion the property in dispute can be classified as follows:

1. Corporate stock certificates in the possession of the person named thereon as owner and on which the named owner was receiving and retaining dividends prior to Smith Ball’s death. This included $155,000 worth of stock in Dizney’s, $28,000 in Charlie’s, and $20,000 in Robert’s possession, and they were adjudged the owners.

2. Corporate stock certificates in Mattie’s name kept in the cedar chest at the home of Smith and Mattie Ball, as heretofore mentioned. The Smith Ball estate was adjudged the owner and thus entitled to recover $5,299.53 from Mattie.

3. Corporate stock certificates in the names of the respective children, kept in the safe at Charlie’s house and delivered or caused to be delivered by Charlie to the named owners after their father’s death. Dividend checks thereon had been endorsed by Charlie at his father’s direction, as heretofore mentioned. The Smith Ball estate was adjudged the owner and entitled to recover $11,500 from Charlie, $179 from Ethel, $2,500 from Robert, $265 from Willard, $16,000 from Woodrow, and an un-ascertained amount from Carter.

4. Kentucky Finance Company debenture bonds, each in the names of Smith Ball or one of the children. Some were in the safe at Charlie’s house and the rest had been left at the office of the finance company in Lexington. All were ■delivered to the respective co-owners after the death of their father. The Smith Ball estate was adjudged the owner and entitled to recover $5,000 from Charlie, $4,000 from Dizney, $5,000 from Robert, $6,500 from Willard, $6,500 from Woodrow, $4,800 from Creed, $5,500 from Beatrice and $500 from Carter.

5. U.S. “E” Bonds, each in the names of Smith Ball or one of the children, kept in the safe at Charlie’s house and delivered or caused to be delivered by Charlie to the respective co-owners after their father’s death. The Smith Ball estate was adjudged the owner and entitled to recover $900 from Ethel, $1,840 from Robert, $1,-650 from Willard, $2,200 from Woodrow, $1,650 from Creed, $830 from Beatrice, and $750 from Carter.

6. Finance company stock certificates, each in the names of Smith Ball or one of the sons, kept in the safe at Charlie’s house and delivered to the respective co-owners after the father’s death. The Smith Ball estate was adjudged the owner and entitled to recover $4,000 from Charlie and $2,500 from Dizney.

7. Certificate for 1,000 shares of Kentucky Finance Company common and certificate for 1,000 shares of New Finance Company preferred, each in the names of Smith, Charlie or Dizney Ball, kept in the safe at Charlie’s house and delivered by Charlie to Dizney after their father’s death. The Smith Ball estate was adjudged the owner and entitled to recover $11,500 from Dizney.

8. Certificate for 500 shares of New Finance Company common, in the name of Smith Ball as trustee for Dizney Ball, kept in the safe at Charlie’s house and delivered by Charlie to Dizney after his father’s death. The Smith Ball estate was adjudged the owner and entitled to recover $1,500 from Dizney.

9. Three promissory notes payable to Charlie Ball, evidencing money loaned by Smith Ball. Payments on principal and interest during Smith Ball’s lifetime were collected by Charlie and turned over to his father. These notes had been kept at the store and were taken by Charlie after his father’s death. The Smith Ball estate was adjudged the owner and entitled to recover $1,050 from Charlie.

10. A $90,554.17 account in First Federal Savings and Loan Association of Winter Haven, Florida, and a $7,300.50 account in First Federal Savings and Loan Association of Lakeland, Florida, opened in November of 1953 in the names of Smith Ball or Charlie Ball. The funds deposited to these accounts were taken to Florida from Harlan by Smith Ball, who took Charlie with him to the two institutions and had him sign the required signature cards. After his father’s death Charlie removed $57,000 (or, as he contends, $47,000) of this money. The balance was seized by the Internal Revenue Service, which charged onto the scene like a mad rhinoceros after Smith Ball’s death and eventually exacted from Charlie, Diz-ney and the estate a settlement of its large and numerous tax claims. The Smith Ball estate was adjudged the owner of these two accounts and entitled to recover $57,000 from Charlie.

11. In Smith Ball’s pocketbook at the time of his death were two cashier’s checks in the respective amounts of $20,459.81 and $25,348.98 from the Harlan National Bank, dated May 18, 1954, two weeks prior to his death. Each was made payable to Smith Ball and Charlie Ball. They were turned over to the administrator. The evident source of these checks was the recent sale of some 24 stocks which had been issued in the individual names of Creed, Willard and Beatrice. On May 13, 1954, at their father’s direction, Charlie and Dizney took the certificates to a stock brokerage in Knoxville, Tennessee, and the endorsements of Creed, Willard and Beatrice, without their knowledge or consent, were forged. Checks thereafter issued by the brokerage house payable to Creed ($29,432.05), Willard ($22,959.81) and Beatrice ($23,466.73) were mailed to Smith Ball, and the names of the payees were endorsed thereon either by Charlie or his father (neither Charlie nor Dizney remembers the details of this transaction very well). Smith Ball received the proceeds.

Charlie contends he was half owner of the two cashier’s checks. They were adjudged, however, to be wholly owned by the Smith Ball estate.

12. Three cashier’s checks, $3,000 to Creed, $2,000 to Willard and $2,000 to Beatrice, purchased by Smith Ball and given to Charlie shortly after the Knoxville transaction for delivery to the respective payees, the purpose of which was to cover income taxes they would be required to pay. They were not delivered by Charlie until around Christmas of 1954, several months after Smith Ball’s death. The Smith Ball estate was adjudged the owner of these checks and entitled to recover $3,000 from Creed, $2,000 from Willard, and $2,000 from Beatrice.

13. Mattie Ball kept $30 or $40 cash found on Smith Ball’s person after his death and sold an automobile worth about $600. Apparently the title to this car was in her name, else she would not have been able to transfer it. The estate’s claim against Mattie for $640 was not allowed (or mentioned) in the judgment.

In stating his conclusions of law the chancellor relied largely on the requirements for an inter vivos gift as stated in Bryant’s Adm’r v. Bryant, Ky., 269 S.W.2d 219 (1954). It was his opinion that except for the stocks in possession of Charlie, Dizney and Robert Ball before their father’s death, on which they had collected the dividends, these requirements had not been met. However, in the recent case of Marcum v. Marcum, Ky., 377 S.W.2d 62 (1964), the “gift” theory with respect to intangibles was carefully reconsidered and found to be inapplicable when a transfer is effected through redesignation of the ownership interest on the face of the contractual instrument, as distinguished from a mere manual delivery of the paper. Although that case involved U. S. savings bonds, which are governed by federal laws on the subject, the decision would nevertheless have been the same otherwise, and its rationale is equally applicable to other bonds and stock certificates. It should not be any different with respect to a cashier’s check, a bank account, or any other evidence of indebtedness.

Stock certificates, notes, bonds, and cashier’s checks are basically alike in that each is evidence of contract rights held by the owner or payee against the signatory institution or party. When one person causes such a document to be issued by a second person in favor of another, individually or jointly, the latter becomes a third party beneficiary of the transaction, and is vested with the rights evidenced by the instrument, which is no less a contract simply because it may generally and more familiarly be regarded as a title document.

Applying this conception to the case before us, we find the judgment erroneous in its determination that the various stocks, bonds, notes and cashier’s checks classified above under the numbers 2, 3, 4, S, 6, 7, 9, 11 and 12 belonged to the estate of Smith Ball, and correct in its determination of the ownership of the stocks classified as No. 1.

The stock certificate issued in the name of Smith Ball as trustee for Dizney Ball (No. 8) was the substantial equivalent of a certificate issued directly to Dizney, as the relationship was a dry trust. Cf. Osgood’s Ex’x, v. Gleason, 229 Ky. 116, 16 S.W.2d 782 (1929); 54 Am.Jur. 29 (Trusts, § 12). “A dry or simple trust * * * is a simple separation of the legal and equitable estates, which can be united at the option of the cestui que trust” (Emphasis added.) Carpenter v. Carpenter’s Trustee, 119 Ky. 582, 84 S.W. 737, 68 L.R.A. 637, 115 Am.St.Rep. 275 (1905). Hence it was error to adjudge Smith Ball’s estate the owner.

The two cashier’s checks described in classification No. 11 belonged equally to Charlie and the estate of Smith Ball, subject to such determination as the trial court shall make with respect to the contentions of Creed, Willard and Beatrice that they were purchased with money received through the unauthorized sale of stocks belonging to them and the unauthorized endorsement of checks issued in payment therefor.

With regard to No. 13, if the title instrument covering ownership of the car Mattie sold was in her name after the death of her husband, as we assume it was, then the same principle should apply, and the judgment was correct in not holding her accountable for it. We shall not worry about the $30 or $40 in cash.

We discuss the Florida savings and loan accounts (No. 10) separately because they are governed by the law of Florida. The administrator cites Spark v. Canny, Fla., 88 So.2d 307 (1956), and Sullivan v. Chase Federal Savings and Loan Ass’n, Fla., 119 So.2d 78 (1960), as supporting the proposition that the creation of a joint survivorship account does not effect a gift or a contract in favor of the third party. However, the law in Florida is stated in the latter opinion as follows (119 So.2d 80):

“The Supreme Court of Florida has determined that where a joint bank account with right of survivorship is established with the funds of one person, a gift of the funds remaining in the account at the death of the creator of the joint account is presumed, but that such presumption may be rebutted.”

The two cited Florida opinions hold merely that in those particular instances the presumption of an intent to create a present interest in the third party was sufficiently rebutted. In this case there is nothing whatever in the evidence to suggest that Smith Ball, in establishing the accounts in question, did not intend the obvious, which was to create a present interest in Charlie. Therefore, the presumption stands and under the law of Florida it was error to adjudge that the surviving co-owner had no right to withdraw the funds after his father’s death.

Under our view of the case it becomes unnecessary to consider the competency of various testimony concerning transactions and conversations with a deceased person. Cf. KRS 421.210(2).

The judgment is affirmed on the administrator’s appeal and reversed on the other appeals and the cause remanded for further proceedings consistent with this opinion.

      . Some years before Ms death the federal government collected a large sum (perhaps $50,000) from him pursuant to a deficiency income tax assessment.

      . Beatrice says she knew her father had bought stocks in her name but did not know he sold any of them.

      . It is hard to resist the inference that this magnanimity stems from the fact that her share in the estate will be greatly enhanced by recovery of the value of the securities received by the various children.

      . Charlie handled the collections on all of Smith Ball’s loans.

      . The situation is quite different, of course, from the case in which a person merely writes a note or check and retains it in his possession.


text:
    James E. JENNINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.

      James E. Jennings, pro se.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for defendant in error.
   PALMORE, Judge.

James E. Jennings, who is serving an 18-year sentence in the penitentiary pursuant to conviction on a homicide charge, appeals from an order of the McCracken Circuit Court overruling his motion to vacate the sentence.

Appellant was tried and convicted at the February, 1961, term of the McCracken Circuit Court. His motion to vacate was filed in January of 1964. Though purporting to be made under RCr 11.42, the motion states as its principal ground newly discovered evidence. The authority for a motion on this ground is RCr 10.06.

The basis for the motion is an affidavit by Keith Ayers, one of the prosecuting witnesses, stating that his testimony was hearsay, given under pressure of a threat by the Commonwealth’s Attorney that if he, Ayers, did not so testify the Commonwealth would seek the death penalty for appellant, his uncle; that the affiant knew no actual facts of the case except what he had heard; and that he was “tricked” into giving testimony by being led to believe he was helping the appellant. All of this was countered by an affidavit of the Commonwealth’s Attorney, and on the basis of the motion, response, and respective affidavits, together with a review of the trial transcript, the circuit court denied relief.

The affidavit of Ayers does not state in what respects his testimony was based on hearsay. The findings of fact of the circuit court recite that there was no testimony given by him at the trial “which could in any way have been interpreted as being hearsay evidence, and that the questions which said affiant was asked at the trial which might have been and which were indicated to be hearsay evidence were objected to and the objections were sustained. As indicated in his testimony, Keith Ayers was not present at the time of the altercation between the defendant * * * and the deceased father of Keith Ayers, and Keith Ayers testified that he knew nothing about the events which occurred on the night the injuries were inflicted which caused the death of his father. The only testimony which could be interpreted as hearsay was testimony which was elicited from said affiant on cross-examination by the defendant’s own attorney, which testimony was for the benefit of the defense and was of no probative value whatsoever to the prosecution.”

This court also has had occasion to review the trial transcript on Jennings’ appeal from his conviction. Jennings v. Commonwealth, Ky., 349 S.W.2d 828 (1961). The evidence given by Keith Ayers was to the effect that when he came home later on in the evening after his father had been injured he observed his beaten and disheveled appearance. This testimony added little, if anything, to the very damaging evidence against Jennings that was given by Ayers’ mother, the state’s principal witness.

It is fundamental that in order for newly discovered evidence to support a motion for new trial it must be “of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.” Ferguson v. Commonwealth, Ky., 373 S.W.2d 729, 730 (1963). It would appear to be a converse of this proposition that if evidence not then known by the defendant to be false or incompetent was used against him, he has grounds for vacating the judgment only if there is at least a substantial possibilty that in the absence of such evidence the verdict would have been different.

In this case, even assuming the credibility of Ayers’ affidavit, the possibility that in the absence of his testimony the verdict would have been different, or by reason of such absence would be different upon a new trial, is too remote to justify relief. Hence the trial court did not abuse its discretion in overruling the motion. RCr 10.06.

The motion states also that by virtue of the allegedly perjured testimony of Ayers appellant was deprived of the effective assistance of counsel. The denial of a constitutional right would, of course, call for relief under RCr 11.42. The motion must, however, state facts in support. To require hearings on the basis of vaporous allegations would visit on the trial courts an intolerable imposition which we cannot encourage or condone. Cf. Oakes v. Gentry, Ky., 380 S.W.2d 237 (decided June 19, 1964).

In his brief appellant says he was denied counsel in this proceeding. When a motion is of insufficient substance on its face to justify a hearing, we do not feel it incumbent on the court to provide counsel.

The order overruling the motion is affirmed.

      . The person appellant was convicted of killing was his brother-in-law, father of the affiant Keith Ayers.

      . At the time of the affidavit Ayers was serving a term in the state reformatory at LaGrange. See Ayers v. Davis, Ky., 377 S.W.2d 154 (1964). He is now serving a federal sentence at Springfield. Mo.


author: PRITCHARD, Commissioner. PER CURIAM.

text:
    MERCANTILE TRUST COMPANY, a Corporation, Appellant, v. Robert W. HAMMERSTEIN et al., Respondents.
    No. 50221.
    Supreme Court of Missouri, Division No. 2.
    May 11, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 13, 1964.

      Biggs, Hensley, Curtis & Biggs and Ward Fickie, St. Louis, for plaintiff-appellant.
    Lackland H. Bloom, St. Louis, for defendants-respondents Robert W. Hammerstein.
    Albert E. Hausman, St. Louis, for unknown and unborn heirs of Mrs. J. M. Griffin, defendants-respondents.
   PRITCHARD, Commissioner.

Mrs. J. M. Griffin died testate in the City of St. Louis, Missouri, on August 26, 1959. By her last will and testament her residuary estate was bequeathed in trust (claimed by appellant to violate the rule against perpetuities, the principal issue here) to persons named in three groups. In Group Three of these beneficiaries was included Dorothy Weber Long who with her brother, Nelson Weber, was to receive one-third of the total net income from the trust to be paid quarterly each year by the trustees. Dorothy Weber Long died testate on March 14, 1961, and her estate is in the process of being administered in the Probate Court of St. Louis County. Appellant is the executor of Mrs. Long’s estate. The third annual settlement in Mrs. Griffin’s estate shows a balance on hand in excess of $264,-000 after payment of estate and inheritance taxes, which amount will go to the trustees under her will if the trust provision is valid in that it does not violate the rule against perpetuities, or, if invalid for that claimed reason, appellant as the executor of Mrs. Long’s estate and the other heirs of Mrs. Griffin will be entitled to take her residuary estate by intestate descent. §§ 474.010 and 474.020, RSMo 1959, V.A.M.S. Thus, the amount in controversy between appellant and respondents exceeds $15,000 and we have jurisdiction of this appeal.

The three groups of beneficiaries of the trust are named and their respective shares therein are set forth in Clause Sixth (c) of the will as follows:

“Group One (1) : One third (V3) of the said net income, according to the respective interest set opposite each name, to the children of my deceased brother, Oscar Weber, namely, to-wit:
“(1) To the children of my deceased nephew, Maurice Weber, namely Maryellen Wolf, Virginia Squires, and William M. Weber, each a Two-fifty fourth (%t) interest in the grand total of said net income.
“(2) To the children of my deceased niece, Gladys Weigman, namely, Betty Jean Weigman and Mariellen Schafer, each a Three-fifty fourth (%*) interest in the grand total of said net income.
“(3) To my nephew, Chester Weber, a Six-fifty fourth (%t) interest in the grand total of said net income.
“Group Two (2) : One-third (1/3) of the said net income, according to the respective interest set opposite each name, to the children of my deceased brother, Arthur Weber, namely, to-wit:
“(1) To my niece, Ruth Momm, a Nine-fifty fourth (%i) interest in the grand total of said net income.
“(2) To my nephew, Arthur Weber, Jr., a Nine-fifty fourth (%t) interest in the grand total of said net income.
“Group Three (3): One-third (1/3) of the said net income, according to the respective interest set opposite each name, to the children of my deceased brother, Charles Weber, namely, to-wit:
“(1) To my niece, Dorothy Weber Long, a Nine-fifty fourth (%t) interest in the grand total of said net income.
“(2) To my nephew, Nelson Weber, a Nine-fifty fourth (%i) interest in the grand total of said net income.”

All of the persons above named as beneficiaries were living at the time of the death of the testatrix, Mrs. Griffin.

Appellant contends that the rule against perpetuities is violated by sub-paragraph (e) of Clause Sixth of Mrs. Griffin’s will, which reads:

“(e) The Trust Estate is to continue in existence for not more than twenty-five (25) years after my death, and may be closed before that time, at the sole discretion of my Trustees, should they deem it advisable to do so. In the event that such closing is made prior to the end of such twenty-five (25) year period, no Trustee shall become liable to any beneficiary herein named or any contingent beneficiary, because the closing was made prior to the end of said period. At the time of any termination of said trust, all the net principal and accrued income shall be paid and delivered to the above-named persons, as their respective interests may appear, or such other persons, as hereinafter provided.”

Sub-paragraph (f) of Clause Sixth of said will provided that if any beneficiary in Groups One and Two predeceased testatrix, or died during the life of the trust, his or her share of the income or principal would be paid to the surviving spouse so long as he or she remained single and unmarried. In the event there was no surviving spouse of a named beneficiary, or said surviving spouse remarried, then the income or principal would be paid to the children of the named beneficiary or their descendants, per stirpes and not per capita. In the event that such beneficiary left no surviving spouse or such spouse did not remain single and unmarried or did not leave any children or their descendants, such interest was to pass in equal shares to those mentioned in their respective groups and if there were no survivors in any one group, then the same was to be divided equally to the remaining two groups and those mentioned in said group according to their respective interests.

By sub-paragraph (g) of Clause Sixth of the will it was provided that the interest of Dorothy Weber Long should she predecease testatrix or die during the life of the trust (which was the case here) the income or principal was to be paid to her mother, Augusta Weber, during the life of the trust, and upon her death the income or principal was to be paid to the brother of Dorothy Weber Long, Nelson Weber, if living, and if not living, then to his widow, if living, and if not living or having remarried, then to the children of Nelson Weber, or their descendants, per stirpes and not per capita.

The provision for Nelson Weber was limited by sub-paragraph (h) of Clause Sixth of the will. If he should predecease testatrix or die during the life of the trust, his interest was to pass to his widow, if living and unmarried, but if not, then to his children or their descendants per stirpes and not per capita. If he left no widow or descendants then his interest was to pass as provided in paragraph (g), and if there were no survivors in either paragraphs (g) and (h) then it was to pass in equal shares to Groups One and Two.

The trial court found that the trust estate created under Clause Sixth of Mrs. Griffin’s will is not violative of the rule against perpetuities in that all of the interests thereunder vested on the date of her death in the named beneficiaries of said trust, and for the further reason that "the discretionary power of the trustees to terminate the estate (to shorten the duration of the trust) constituted a saving- clause.

“ ‘The rule against perpetuities is that no interest within its scope is good unless it must vest, if at all, not later than twenty-one years after some life or lives in being at the creation of the interest, to which period is added the period of gestation, if gestation exists.’ The rule is concerned with the time within which title must vest, not with a mere postponement of enjoyment or possession.” St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344, 350 [10, 11]; Simes and Smith, The Law of Future Interests, 2nd Ed., § 1233, p. 137; 110 A.L.R. 1451; 70 C.J.S. Perpetuities § 7, p. 583. See also Schee v. Boone, 295 Mo. 212, 243 S.W. 882, 886, where it was said, “(T)he rule is only concerned with the time of the commencement of the vesting of the estate and not with its duration.”

“The rule against perpetuities applies only to contingent estates or interests which will vest, if at all, in the future, and not to vested estates or interests, even though de-feasible, and the character of an interest as vested or contingent is, therefore, a primary consideration. A true vested interest is never obnoxious to the rule against per-petuities; * * 70 C.J.S. Perpetuities § 10, p. 585; 155 A.L.R. 698; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 142.

In construing the instant trust provision as to whether it created a vested or contingent interest in the named beneficiaries the rule is that the intention of the testatrix must govern, and that such intention must be gathered from the will as a whole. McDougal v. McDougal, Mo.App., 279 S.W.2d 731; St. Louis Union Trust Co. v. Kelley, supra, loc. cit. 199 S.W.2d 349 [1, 2]; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39, 42 [4]. In the Mc-Dougal case, supra, and cases collected and cited therein, it is said that the law favors the vesting of estates at the earliest possible moment and that when a doubt exists an estate will be construed as vested rather than contingent upon some future event, and conditions attached to a grant or devise will be construed as conditions subsequent rather than conditions precedent to such vesting.

Appellant has relied upon several cases to support its contention that the trust estate here was contingent in that the named beneficiaries were required to survive to the date of distribution of the corpus of the trust. Because there is -a possibility, appellant says, that persons not in being might become vested with the estate at its termination in twenty-five years, it violates the rule against perpetuities. We have examined each of these cited cases and we find that in each there were distinguishing words or language used in the instruments definitely indicating that the interests granted or devised were contingent, as was held. See Collins v. Crawford, Mo., 103 S.W. 537; 214 Mo. 167, 112 S.W. 538 (remainder to her children, if living); Dickerson v. Dickerson, 211 Mo. 483, 110 S.W. 700 (farm to be divided between testator’s surviving children and grandchildren, if any, whose parents were dead); Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035 (title to vest at the death of the surviving equitable owner of the life estate); Dwyer v. St. Louis Union Trust Co., 286 Mo. 481, 228 S.W. 1068 (remainder of trust to be divided equally among the children of the life tenant living at the time of her death, or at the time when the youngest of her children should have reached age 21); Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 170 (proceeds of trust put on interest until the youngest child of life tenant shall have attained age 25); Green v. Irvin, 309 Mo. 302, 274 S.W. 684 (the children of the life tenant were to take as her heirs, not as heirs of the testator); Donaldson v. Donaldson, 311 Mo. 208, 278 S.W. 686 (after death of life tenant land was than to vest in fee to his children, if any, and if none, to go to others); Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39 (direction to distribute trust estate, at the happening of a certain event, to a class then living, or their descendants); Bates v. Clark, 349 Mo. 1087, 163 S.W.2d 975 (then to be divided “among such of the parties * * * as may then be living and the children, if any, of such as may not then be living.” See also the previous case, Bates v. Bates, 343 Mo. 1013, 124 S.W.2d 1117, 1121). The last case cited, St. Louis Union Trust Co. v. Herf, 361 Mo. 548, 235 S.W.2d 241, is not helpful to appellant’s position. There, upon the termination of the trust the corpus and undistributed income was to be paid over to certain named relatives and to the widow (Bertha) of one of them if single and unmarried, “and unto the descendants of such of them as may have died prior to such time, in equal shares per stirpes, free from trust.” The court held merely that the settlor intended a gift to his “relatives named” (and Bertha) as a class, with a proviso that if there were a complete failure of the class, then the (named) hospitals were to take.

Mrs. Griffin’s will contains no language expressly or by implication indicating an intention contrary to that of an immediate vesting in interest of the corpus of her trust at the time of her death. Trautz v. Lemp, supra, loc. cit. 46 S.W.2d 142; McDougal v. McDougal, supra, loc. cit. 279 S.W.2d 737. The latter case quoted from Grannemann v. Grannemann, Mo., 210 S.W.2d 105, 107, where it was stated that “ ‘in the absence of anything in the will showing, either expressly or by implication, that testator intends that the title to his bounty is to be postponed, it is conclusively presumed that his gift is to vest at his death.’ ” Regardless of the impact of any such conclusive presumption here, there are other considerations which shed light upon Mrs. Griffin’s intention as to time of vesting. She made her gifts to persons named, and this is one of the recognized symbols of vesting of an estate. In re Stevenson’s Trust, Sup., 127 N.Y.S.2d 626. The distributees of the corpus of the trust are the same as those who are to receive the intermediate enjoyment of the income of the trust. This is a fact for consideration which is analogous to the exception to the rule' of construction that the time of vesting is controlled by a direction to the trustees to “divide and pay over,” such exception being that “the gift of the corpus is ordinarily vested, though payable at a future time, if the legatee is to have the intermediate use or benefit thereof.” L.R.A. 1918E, 1114; 128 A.L.R. 312; 144 A.L.R. 1162; 16 A.L.R.2d 1394. Furthermore, in this case the will contains no words of futurity with respect to the time of vesting of Mrs. Griffin’s trust estate. She directed merely that should any of her named beneficiaries die during the life of the trust, then in such an event the said income or principal should be paid to others. This is not a condition imposed as to the happening of an event which must occur prior to the vesting of the estate. There is no class of persons to be determined at the time of the termination of the trust— each beneficiary is specifically named as a first taker of the trust estate.

Under the facts of this case and under the rules of construction set forth above, we rule that the equitable title to Mrs. Griffin’s trust estate vested in her named beneficiaries at the time of her death, and the legal title then vested in her trustees. This holding best conforms with the intention of Mrs. Griffin to benefit those named in her will. St. Louis Union Trust Co. v. Herf, supra, loc. cit. 235 S.W.2d 247 [4-6], Furthermore, it is aptly said that “testators usually have in mind the actual enjoyment rather than the technical ownership of their property.” Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950; McDougal v. McDougal, supra, loc. cit. 279 S.W.2d 737 [6-9]. In this holding we deem that the facts in the case of Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, are close to the facts in the case at bar. There the testamentary trust was to last for thirty years after testatrix’ death, and the income therefrom was to be paid to her children named until distribution. In Clause 8 of the will it was provided, loc. cit. 262: “In case any child or children shall die before final distribution, the issue of such child shall have all the rights of the parent, taking per stirpes; but if no issue survive the share of such deceased child or children shall pass to the survivors of my said children, or their issue, the issue in all cases taking per stirpes.” With respect to the contention that this clause (8) violated the rule against perpetuities, the court had this to say, loe. cit. 266: “The effect of clause 8, therefore, is to modify the absolute estate, vested in each child by the prior provisions of the will, into a present interest, but one subject to be divested by a condition subsequent, namely, death before the end of the trust period, leaving or not leaving issue, as the case may be, thus creating a defeasi-ble instead of an absolute fee.” See also Trautz v. Lemp, supra; McDougal v. McDougal, supra; Thomson v. Union National Bank in Kansas City, Mo., 291 S.W.2d 178; Greenleaf v. Greenleaf, 332 Mo. 402, 58 S.W.2d 448; and Bredell v. Collier, 40 Mo. 287

In view of other rules of construction here applied, we deem it of no destructive effect as authority that the court in the Deacon case apparently gave weight to the testatrix’ purpose to “benefit her estate” along with the fact that there were no words used creating a condition precedent to the vesting of the estate. Nor do we adopt appellant’s argument that the limitation here might be “beyond second takers.” The equitable estate is vested in the first taker, as we hold, subject to being divested by that taker’s death (or remarriage in the case of a spouse) during the twenty-five year period of the trust. There are gifts over in what may be termed several shifting and springing executory devises (see 54 Am.Jur., Trusts, § 8, p. 25) after the occurrence of the specified conditional limitation (so called because of the distinction of that technical term from a “condition subsequent” which gives rise to a right of entry in the grantor or his heirs or the testator’s heirs on condition broken. See 19 Am.Jur., Estates, § 67, p. 530.) It is well settled that there may be several limitations after a first executory devise. 19 Am.Jur., Estates, S 127, p. 585.

Appellant contends that the discretion in the trustees to shorten the period of the trust causes the interests to be contingent Such is not the rule in this state. See Moran v. Sutter, 360 Mo. 304, 228 S.W.2d 682, 687 [5], The cases cited by appellant do not support its contention. In none of them was there a provision that the trustees had discretion to shorten the period of the trust, but it was generally held in each that the trusts and trustees were self perpetuating. See Denny v. Hyland, 162 Wash. 68, 297 P. 1083; In re Morrison’s Estate, 173 Misc. 503, 18 N.Y.S.2d 235; In re Estate of Patrick J. Connor, 37 Misc.2d 363, 235 N.Y.S.2d 365; Bundy v. United States Trust Co. of New York, 257 Mass. 72, 153 N.E. 337; Thomas v. Harrison, Ohio Prob., 191 N.E.2d 862.

Although the twenty-five year limitation upon the right to full enjoyment by the named beneficiaries of the corpus of Mrs. Griffin’s trust estate obviously raises the red flag of warning or danger, at least insofar as the possibility of litigation is concerned, inasmuch as we have held that the equitable interests in her trust estate vested at the time of her death in the beneficiaries in a defeasible fee, the period specified does not violate the rule against perpetuities.

The trial court awarded appellant $3,000.00 attorneys’ fees to be charged against Mrs. Griffin’s trust estate. The surviving trustee, Robert W. Hammerstein, Jr., has appealed from that order. The primary purpose of appellant’s suit below was to have the provision in Mrs. Griffin’s will for her trust estate declared void and to destroy it. The suit was not for the benefit of the trust estate or for the beneficiaries. Under such circumstances it was error to award appellant its counsel fees to be charged against the trust estate. Thomson v. Union National Bank in Kansas City, Mo., 291 S.W.2d 178; Nelson v. Mercantile Trust Company, Mo., 335 S.W.2d 167.

The order allowing attorneys’ fees is reversed, otherwise the judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.

DALTON, J., sitting vice STORCK-MAN, P. J.

On Motion for Rehearing.

PER CURIAM.

In its motion for rehearing or in the alternative for transfer to the court en banc plaintiff says, citing 41 Am.Jur., Perpetuities, § 30, and 70 C.J.S. Perpetuities § 13, that the executory devise here may take effect beyond the period specified by the rule against perpetuities and is void. We have examined the cases cited under the general statements to this effect in the aforesaid two citations and we find that there was in each no time limitation in any case within which the condition was to take effect. The opinion follows the rules set forth in A.L.I.Rest.Prop. §§ 370 g and 386 j, that “An executory interest so limited as to become possessory at the end of a precisely computable period of time, as for example at the end of twenty-five years, is also not subject to a condition precedent, and so is excluded from the rule (against perpetuities).” (Parentheses added.)

Plaintiff also raises the point that the matter of the propriety of the trial court’s ruling in allowing plaintiff’s counsel $3,000.00 attorneys’ fees and charging them against the trust estate of Mrs. Griffin is not preserved for review because it was not presented to the trial court by way of motion for new trial. Plaintiff’s position is that a motion for new trial on the matter is required by Supreme Court Rule 79.03, V.A.M.R., and defendants, having failed to file such motion, are precluded from raising it in this court.

Rule 79.03 expressly excepts from those matters which must be presented to the trial court in a motion for new trial for the preservation for appellate review, “questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Rule 73.01.” This was a court-tried case under Rule 73.01, and therefore defendants properly preserved their right to challenge plaintiff’s allowance of attorneys’ fees by their timely notice of appeal. See Handlan v. Handlan, 362 Mo. 1180, 247 S.W.2d 715, 718 [2], where it was held on this precise question that the sufficiency of the evidence to support allowances of attorneys’ fees and expenses made by the trial court could be challenged by defendants on appeal even though they failed to file a motion for new trial.

We have examined the other matters presented and they are without merit. The motions for rehearing or in the alternative for transfer to the court en banc are overruled.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence KENNEBREW, Appellant.
    No. 50387.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Stanford A. Zeldin, Kansas City, for appellant.
   HENLEY, Judge.

This appeal out of time is lodged here by virtue of a special order of this court entered September 9, 1963, pursuant to Rule 28.07 (all references to Rules are to V.A.M.R.).

On January 30 and 31, 1963, the defendant, Lawrence Kennebrew, was tried by a jury and on the latter date he was found guilty of the felony of robbery in the first degree. He was represented at the trial by counsel appointed by the trial court. The jury assessed his punishment at imprisonment in the Missouri Penitentiary for a term of eight years. A motion for a new trial was not filed. On February 19, 1963, Kennebrew and his court-appointed counsel appeared in court and defendant was then accorded allocution, and judgment and sentence in accordance with the verdict were pronounced and entered.

On September 19, 1963, in accordance with our mandate, the defendant was by the trial court granted leave to, and did, file his notice of appeal. At the same time the trial court ordered that the defendant be furnished with a transcript of the record without cost to him. This 160 page transcript was furnished us. Our file indicates that the trial court also appointed counsel to represent Kennebrew in the prosecution of this appeal.

The latter court-appointed counsel has furnished us with a brief in which he raises three points of error, namely, (1) that the verdict did not refer to the information and omitted all the essential elements of the crime of first degree robbery, (2) that a defense witness was permitted to be cross-examined on the latter’s conviction by a jury before the time for appeal of that conviction had expired, and, (3) the admission into evidence of a knife found on the person of Kennebrew at the time of his arrest. In addition to his appellate counsel’s brief, defendant has favored us with his own good efforts in the form of a supplemental brief.

As a consequence of defendant not filing a motion for a new trial in the trial court, that court was not afforded an opportunity to consider and rule on the alleged errors presented to us in defendant’s briefs. This court has held many times that in this state of the record there is nothing before us for review except those portions of the record we are required to consider and review under Rule 28.02. Section 547.270 (all references to statutes are to RSMo 1959 and V.A.M.S.). State v. Hurtt, Mo., 338 S.W.2d 876; certiorari denied, 364 U.S. 916, 81 S.Ct. 281, 5 L.Ed.2d 229; State v. Deckard, Mo., 354 S.W.2d 886. The alleged errors of the trial court presented and argued in defendant’s briefs, with the exception of point 1 above referred to, were not properly preserved for appellate review.

The charge of robbery in the first degree in this information is in the language of Section 560.120 and contains all the elements of that offense. In substance and form it is not unlike informations held sufficient in State v. Jarrett, Mo., 317 S.W.2d 368; State v. Moore, Mo., 347 S.W.2d 195. Defendant complains that the information is insufficient in that it does not charge that the offense was committed with intent to deprive the prosecuting witness of his property. Section 560.120 does not mention any specific intent as an essential element of the offense. The information is sufficient.

The verdict assailed by the defendant is (signature of the foreman omitted) as follows:

“We, the Jury, find the Defendant, LAWRENCE KENNEBREW, guilty of Robbery, First Degree, and assess his punishment by eight (8) years in the State Penitentiary.”

This general verdict (as distinguished from a special verdict) is responsive to the charge made in the information and certain as to the offense intended. It was not necessary that the words, “as charged in the information”, be added as a reference. State v. Carroll, 288 Mo. 392, 232 S.W. 699. State v. Sauselle, Mo., 265 S.W.2d 290, 1. c. 294. In State v. Jordan, 285 Mo. 62, 1. c. 72, 225 S.W. 905, 907, this Court said:

“It is a wholesome precept that verdicts should be given a reasonable in-tendment and a like construction, and are not to be avoided unless it is evident they will work manifest injustice. * * )>

And in the same case, 285 Mo., 1. c. 73, 225 S.W. 1. c. 907, the standard or test is stated as: the verdict must be sufficiently definite and certain “ * * * that upon the entry of a judgment thereon it would have constituted a bar to a further prosecution * * * for the same offense * * * This verdict meets that test.

We have examined those portions of the record required under Rule 28.02 and find no reversible error.

The judgment is affirmed.

All concur.