text:
    TROOST AVENUE CEMETERY COMPANY, Respondent, v. The FIRST NATIONAL BANK OF KANSAS CITY et al., Appellants.
    No. 51874.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.

      Charles F. Lamkin, Jr., Harry D. Ding-man, Kansas City, for respondent, Kuraner, Oberlander, Lamkin & Dingman, Kansas City, of counsel.
    Norman H. Anderson, Atty. Gen.,;,J. Gordon Siddens, Asst. Atty. Gen., Jefferson City, John R. Campbell, Special Asst. Atty. Gen., Kansas City, for appellant, the Attorney General.
   HYDE, Judge.

Equitable class action seeking authorization for deviation from the terms of a trust instrument requiring certain designated investments. The Attorney General has appealed from the judgment authorizing deviation.

The material part of the judgment is as follows: “(1) The First National Bank of Kansas City, as trustee of the combined trust above described, is hereby permitted, empowered and authorized to deviate from the express investment policies of the trust as modified and in the investment of the trust funds to exercise the diligence and care that men of ordinary prudence, intelligence and discretion would employ, but with a view to permanency of investment considering probable, safety of capital investment, income produced and appreciation of capital investment, including but not limited to, investments in common and preferred corporate stock.”

The original trust agreement, dated May 25, 1904, provided that it was the duty of the trustee to invest its funds, accumulated from deposit of five per cent of its lot sales, “in Missouri, State Bonds, United States Bonds, or any bonds issued by counties, cities or school districts in Missouri, or in notes secured by first mortgages on real estate in Jackson County, Missouri.”

A later supplemental trust agreement, dated May 1, 1922, requiring an additional five per cent of money received from lot sales to be set aside as an additional trust fund and provided as to this additional trust fund: “ * * * it shall be the duty of the trustee to invest said sum as soon as practicable in Missouri State bonds, United States bonds, or any notes secured by first mortgages on real estate in Jackson County, Missouri * *

It was stated in both agreements as “being contemplated by the parties hereto that absolute safety shall in all investments be the first and most important consideration.” The original trust agreement provided the trust fund was to be accumulated for 20 years before any income was used by the cemetery. However, a later supplemental agreement of May 22, 1918, provided it was to be accumulated until it amounted to $300,000.00. It did reach that amount on May 28, 1954, and on March 9, 1955, the two trusts were consolidated as authorized by the supplemental agreements.

The cemetery company commenced with 320 acres of land and now operates two cemeteries, called Forest Hill and Calvary. Income from the trust funds is used to maintain both, for the benefit of all present owners and all future purchasers of cemetery lots. At the time of the trial in July 1965, the perpetual maintenance fund amounted to $528,283.19 (asset cost). Actual value was indicated to be about $30,000.00 more. Of this $16,000.00 was invested in real estate mortgages, $87,000.00 in municipal bonds and the rest in obligations of the United States. The trust also owned real estate valued at $6,600.00 obtained by foreclosure. About half of the land available for lots had been platted and sold during the first sixty years of its operation. There are scattered unsold lots in the platted parts of the cemeteries and considerable areas have not been platted. The cemetery also had a separate trust fund of about $28,000.00 limited to the maintenance of certain lots designated by the donors of this fund. The cemetery company has ■qualified under the 1961 Missouri Endowed Care Fund Law, Secs. 214.270 to 214.410, RSMo, V.A.M.S., which authorizes (Sec. 214.330) the same investment policy herein sought, but that law does not affect the provisions of this trust.

The original trust agreement provided its purpose to be: “[Guaranteeing that the said cemetery shall always have proper care and attention, and that walks, drives, lakes, fountains, trees, shrubs, flowers and fences shall always be maintained in good order.” To accomplish this purpose it was provided: “[T]he net income thereof may be, and if necessary shall be used in perpetually maintaining and beautifying said cemetery in the following manner, to-wit: During each year said Cemetery Company, or its legal successors, shall properly maintain, beautify and ornament said cemetery in a general manner usual in large cemeteries.” It was also provided that each year the cemetery company should furnish the trustee a certificate “that said Cemetery Company has properly maintained, beautified and ornamented said property, or has expended in such general maintenance a sum equal to the net income of said trust fund for said year.” It was further provided that if the cemetery company did not fulfill this obligation “then said Trustee shall be empowered to enter upon said cemetery and expend the net income of said trust fund in the proper care and maintenance of said cemetery.” No part of the principal of the trust is ever to be expended for any purpose.

The first supplemental agreement of May 22, 1918, provided the cemetery company was “to maintain, beautify and ornament said cemetery property each year until such time as the principal of said trust fund shall amount to the sum of $300,000.00, and to pay out of its own funds all of the expenses thereof.” This agreement also stated “the Cemetery Company estimates said fund will be sufficiently large to enable the income therefrom to forever maintain said cemetery property.” This agreement contained provisions similar to the original as to the use of the trust income, the annual certificate to the trustee and the duty of the trustee concerning proper maintenance.

The cemetery company offered in evidence an exhibit prepared by its accountant which showed the following figures concerning expenses and trust income for the six full years preceding the trial herein,

It is obvious from the designation of these items of expense that some of them are for expenses beyond anything authorized to be paid out of the trust fund income “to properly maintain, beautify and ornament said cemetery”; and this is made clear by the cross-examination of plaintiff’s accountant by the Assistant Attorney General. He conceded that utilities “possibly except for water should not be in here * * * we did not try to break it down * * * be almost impossible to determine it.” As to salaries, he said it did not include salaries of officers, office employees or salesmen but that it could include opening graves for which the cemetery company would be reimbursed. Insurance included general liability, workmen’s compensation and perhaps fire insurance. The accountant did not know what was included in supplies and miscellaneous, and the equipment maintenance and fuel item was not fully explained. While it appears likely that the full amount of the trust fund income was required annually “to properly maintain, beautify and ornament said cemetery,” the actual deficit, if any, cannot be determined from the evidence before the court in this case.

We agree, as the Attorney General contends, that the rule to be applied is that of the American Law Institute Restatement of Trusts 2d, Sec. 167(1): “(1) The court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust.” As to restrictions on investments, Comment c under Sec. 167 states the considerations we would apply, namely: “c. Investments. Where by the terms of the trust the scope of investments which would otherwise be proper is restricted, the court will permit the trustee to deviate from the restriction, if, but only if, the accomplishment of the purposes of the trust would otherwise be defeated or substantially impaired. Thus the court will permit the investment if owing to changes since the creation of the trust, such as the fall in interest rates, the danger of inflation, and other circumstances, the accomplishment of the purposes of the trust would otherwise be defeated or substantially impaired. Where by the terms of the trust the trustee is not permitted o invest in shares of stock, the court will not permit such an investment merely because it would be advantageous to the beneficiaries to make it.”

Plaintiff cites In re Trusteeship under Agreement with Mayo, 259 Minn. 91, 105 N.W.2d 900, where investments in corporate stocks were not authorized by the trust created in 1919. There the dominant intention of the donor was considered to be “to prevent a loss of the principal of the two trusts,” which were to be distributed to the donor’s descendants, not continuing longer than 21 years after the death of all the donor’s children. Authorizing deviation the court said: “It appears without substantial dispute that if deviation is not permitted the accomplishment of the purposes of the trusts will be substantially impaired because of changed conditions due to inflation since the trusts were created; that unless deviation is allowed the assets of the trusts, within the next 20 years, will, in all likelihood, be worth less than one-fourth of the value they had at the time of the donor’s death.” See also St. Louis Union Trust Co. v. Ghio, 240 Mo.App. 1033, 222 S.W.2d 556, where income was held to be the matter of primary concern. However, in Stanton v. Wells Fargo Bank & Union Trust Co., 150 Cal.App.2d 763, 310 P.2d 1010, 1015, where deviation was denied, it was said: “Except in unusual or emergency situations the courts will limit the trustees to the powers conferred. But the courts will not permit the main purpose of a trust to fail by compelling slavish adherence to the administrative limitations of the trust instrument. Where the main purpose of the trust is threatened the courts will and should grant permission to deviate from restrictive administrative provisions. But the court should not permit a deviation simply because the beneficiaries request it where the main purpose of the trust is not threatened and no emergency exists or is threatened. It must be remembered that it is the theory of this .rule that, by the exercise of this power, the court is not defeating the trust, but in fact is furthering it. The equity court is simply doing what the testator, presumably, would have done had he anticipated the changed conditions. In other words, the specific intent of the testator is disregarded in order to enforce his general intent.” See also Scott on Trusts, Sec. 167; The Problem of Unduly-Conservative Trust Investments, 61 Michigan Law Review 1545.

We must consider, as plaintiff urges, that this is a perpetual trust; that the net return therefrom in the last six years varied from 3.10 per cent in highest year, 1963, to 2.55 per cent in the lowest, 1964; that because of changed circumstances as to real estate financing it was not now possible to invest in real estate mortgages of the kind contemplated when the trust was established; and that plaintiff’s expert witness on investments stated that common stocks have to be held for a considerable number of years to achieve a higher rate of return than bonds but that eventually because of appreciation in value, caused in part by inflation, stock splits and corporate growth, the best stocks will do so as well as better preserving the real value of the principal.

However, the Attorney General argues that there are enough lots (including un-platted areas) remaining to be sold so the cemetery company can continue to operate as it has been for as much as another fifty years, paying costs over trust fund income from lot sales and other income. (It appears there is other income but it was not shown how much or from what sources.) Of course, the principal of the trust will be annually increased by the addition of ten per cent of the amount received from lot sales; and thus the annual income should increase. Because of these factors, it is argued there is no present emergency or conditions sufficient for authorization to deviate from the trust provisions for investments.

Our conclusion is that the evidence in this case is not sufficient to show at this time the accomplishment of the purposes of the trust would be defeated or substantially impaired unless deviation from the trust restrictions on investment is authorized. The trust agreements do not show it was originally contemplated that only the trust income would be used “to properly maintain, beautify and ornament said cemetery” although they authorized the use of all of it if it was required. Provisions of a trust instrument should not be lightly disregarded because some consider that in the future it would be advantageous to do so. Our view is that it cannot be properly held it is essential to the accomplishment of the purposes of this trust to permit deviation at this time from its investment restrictions, without having before the court all the information about the present income, expenses and future prospects of the cemetery company and the actual annual cost required “to properly maintain, beautify and ornament said cemetery.” However, since it appears that such evidence may be available we will remand for further proceedings in accordance with the views herein expressed.

The judgment and decree is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Alf A. JONES, Pauline E. Jones, W. B. Jones and Ann P. Jones, and Jack Jones Lumber Company, a Corporation, and Jack Jones Sash and Door Company, a Corporation, Appellants, v. GARNEY PLUMBING COMPANY, a Corporation, and Ernest Miller, Respondents.
    No. 51779.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 4, 1967.

      John C. Risjord and Gordon, Adams, Niewald & Risjord, Kansas City, for appellants.
    David R. Hardy, Lane D. Bauer, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondents.
   HIGGINS, Commissioner.

Action for $55,000 damages resulting from a fire at plaintiffs’ lumberyard occupied in part by defendants. Plaintiffs appeal from judgment entered upon a verdict directed for defendants at the close of plaintiffs’ case.

Plaintiffs based their action on res ipsa loquitur and alleged that on October 23, 1963, defendant Garney Plumbing Company was the lessor of a part of plaintiffs’ premises, thus having complete and exclusive control and custody of a garage stall on plaintiffs’ premises which they used to house and repair trucks; that defendant Garney was further in complete and exclusive control and custody of an acetylene torch used by defendant Ernest Miller as the agent, servant, and employee of defendant Garney in the maintenance of a truck; that, as a result of negligent handling and operation of the torch by Miller, a fire was started; that plaintiffs had no knowledge of the specific acts of negligence which caused the fire; that, as a result, plaintiffs sustained $50,000 damage to their property and $5,000 damage for interruption of their business.

Plaintiffs’ buildings were located at 306 West 78th Terrace, Kansas City, Missouri. They consisted of two office buildings and two lumber sheds, 20 years old, used for lumber storage and as rental property. One office building containing four offices was located on the north side of 78th Terrace. Directly to the north were two lumber sheds which ran north and south, side by side, separated by an alley or aisle. Both sheds had large sliding doors on their east and west sides. The west shed was a 2-story wooden building 36 x 96 feet, with six stalls or bins each 16 feet wide. It had a concrete floor. Still farther to the north was the other office building. It faced on 78th Street and was occupied by Alber Electric Company. On its south or rear side was a large overhead garage door which opened into the aisle between the lumber sheds. The first stall beginning at the south end of the west shed was used for storage of moldings and mahogany lumber. The second or next stall to the north of it was the one occupied by Garney Plumbing Company for storage and repair of trucks. The remaining stalls contained only lumber. There were no flammable liquids, solvents, or paint stored anywhere on the premises by the owners; there were no heating appliances in the west shed; and, prior to Gar-ney’s occupancy, there was no electrical service to the west shed.

In late September, 1963, Mrs. Garney and W. B. “Jack” Jones made arrangements for rental of the stall to Garney, including provision for installing electrical service. Robert Alber, journeyman electrician employed by his father, did the electrical work about October 10, 1963. To obtain electrical service he attached new wiring to an unused available fused circuit at the fuse panel on the south wall of the south office building and ran wire IS to 16'feet aboveground to a service head at the Garney stall. Number 12 insulated wiring was used and enclosed in metal conduit. The installation included an electrical outlet and light in the Gar-ney stall. A 4-inch steel box was used for the receptacle and it was located above the workbench in the southeast corner. An overhead light was installed using an octagonal metal box covered by a 4-inch porcelain receptacle, affixed to a ceiling joist. The switch was placed in the southwest corner at the west entrance. It, too, was enclosed in a metal box. Connections were made with screw terminals and splice nuts. When the job was completed Mr. Alber tested it and found it operating properly. According to him, the installation met approved standards.

Mr. Alber noted the location of the stall doors on the east and west sides. The doors were 12 to 14 feet wide, virtually as wide as the stalls. The north and south walls were of fiberboard and they contained no openings. The or 8-foot ceiling was made of wood decking over wood joists. Approximately six days before the fire, Mr. Alber was in Garney’s stall and noted oil spots on the floor where trucks had stood. There was some grease on the floor, and there was a pan of solvent, presumably gasoline, for cleaning truck parts, on the floor at the west end of the workbench. There were some shop towels and rags lying about and the stall had the appearance of a shop used for repairing trucks. Mr. Miller was present at the time of this visit.

By way of deposition, Ernest M. Miller testified that he had worked as a mechanic at the lumberyard stall for two or three weeks before the fire. During that time he worked on several Garney trucks. He had grease rags and a five gallon can of gasoline which he had used to wash grease from engine parts. He did not keep his gasoline can in any particular place. He overhauled truck engines and the trucks dripped grease and oil onto the floor. In overhauling engines, he would take them apart and that also produced grease and oil. Although he had a box for grease rags, he did not have a container for trash or any compound or material with which to clean up grease. He also performed cutting and welding operations in the stall. The acetylene equipment he used included oxygen and acetylene bottles with rubber hoses connecting them to his torch. Each bottle had a valve and a gauge, both of which operated easily with a wrench. He wore protective goggles but did not use asbestos gloves, nor were there any guards, shields, or other devices to protect against hot metal sparks which resulted from cutting operations and can fly as much as 8 or 10 feet. Mr. Miller never experienced any difficulty with any of his electric equipment or supply prior to the fire. On the morning of the fire he was at work at 6:15 and was the only person employed there by Garney to work on trucks. His acetylene torch equipment was on the premises, including oxygen and acetylene bottles, torch, rubber connecting hoses, valves and gauges. He customarily did not work with the light on and did not turn it on this morning. He worked by the daylight from the open doors which were approximately 12 x 18 feet. He had his electric impact wrench plugged in; he had no other electric appliances that day. The wrench worked properly and he had no electrical shorts or sparking. Defendants admitted that Mr. Miller’s work on that date was in the scope of his employment; they denied he used his torch on that day.

Mrs. Evelyn Alber did general office work, including typing and invoicing, for Alber Electric Company which was owned by her husband, Dan R. Alber. She knew Ernest Miller and knew about acetylene torches, having seen her husband use one in his business. She had seen Mr. Miller using an acetylene torch in the Garney stall in the repair of and to burn paint off Garney trucks. She described Miller’s equipment as two bottles of gas and a torch about 12 inches long. On the morning of October 23, 1963, the day of the fire, Mrs. Alber drove along the west side of the shed and noticed a Garney truck in the Garney stall but did not see Mr. Miller. She arrived at her office about 8:50 A.M., made a pot of coffee, and sat down at her desk. The overhead garage door at the back of her office building was the nearest part to the west shed. To the north of that door was a garage, the length of which was at least that of two trucks. The garage was then separated from the office proper by a wall with a door in the center. Mrs. Alber’s desk was about four feet north of that wall facing east and west. She was in a direct line with the door in the wall to the garage. She sat at her desk in a swivel chair which enabled her to look out the garage door and then on to the south through the overhead door. On occasions previous to the fire she had looked out those doors in this manner and had seen Mr. Miller using his torch at the Garney stall. She had never seen anyone except Miller using a torch there.

As Mrs. Alber looked out the doors on this morning, there was a truck in the center of the aisle between the sheds, a truck in front of the Garney stall facing south on the east side, a car facing north alongside the office building, and a house trailer parked in the aisle. According to her, none of these vehicles interfered with her line of vision to the Garney stall. She could see its east side but not into it. While looking toward the Garney stall, Mrs. Alber saw a man’s arm, slightly bent, point an acetylene torch out of the east side of the Garney stall, presumably to adjust it. The flame was at first about 12 inches long, yellow in color, and changed to a shorter flame, bluish in color. Her observation took “a second or two,” and when she glanced away to pick up her coffee, the torch “disappeared” into the stall still flaming. Mrs. Alber began typing an invoice and after a short time, two to ten minutes, heard a cracking, jumped up and went back to see what was going on. She saw fire at the rear of the Garney stall with flames coming from the stall. There were no flames coming from the stalls on either side of the Garney stall. She ran back and called the fire department and learned that the fire had already been reported. She ran back outside to start moving cars and saw Mr. Miller on the west side of the shed. She shouted at him to help her, but “he was kind of berserk * * * he was excited too, and he just mumbled and turned around and ran back * * * towards the south.” She moved one car and then a fire truck arrived. The wind was brisk to the north and blew the fire toward her. She observed that the south stall was a most destroyed area but had not looked closely enough to determine if it was more so than the Garney stall.

Robert Alber testified that the rear door of Alber Electric was nine feet wide and said that if it were open a person seated at the desk where Mrs. Alber sat could see the east side of the west shed and could observe a man sticking his arm out of the shed holding an object.

Harold L. Perdue was an employee of Jack Booth Construction Company which had an office in plaintiffs’ south office building. He heard a commotion, ran outside and around the west end of the office building and saw fire in the area where the south stall of the west shed met the office building. He changed direction and met Mr. Miller near the east end of the office building. Mr. Miller told him that he had been working under the truck and all of a sudden there was a “poof” and a fire started.

Harry O. Phipps, fireman of 13 years’ experience with the Kansas City Fire Department, received an alarm October 23, 1963. His station was one block from the fire and he proceeded there immediately in his pumper truck, arriving at the west side of Alber Electric Company and facing south within one minute after the alarm was received. “As we pulled up there we seen a small fire just approximately a little bit halfway past the middle of the building, about a foot and a half above the ground.” He circled that area on a photograph in evidence and related it to the location of a truck in the Garney stall. “The area most severely burned out is around the truck.” As soon as he arrived and started his pumper, there was a “rumble” and “the whole building erupted in flame.” The wind was from the southwest and brought the fire directly toward him. Around 3 P.M., as the fire was dying, “a Garney flat bed truck backed in and loaded two acetylene tanks onto the truck and drove off.” After the fire was over he determined that the point where he first saw the small fire “proved to be just straight behind the truck,” referring to the truck burned in Garney’s stall.

Joseph E. Thomas, with 18 years’ experience in automobile garage and body work and in the use of acetylene torches, described the principle of combining acetylene gas with oxygen to generate heat. The torch unit consists of oxygen and acetylene gas with oxygen to generate heat, by a hose. The same torch handle serves for both cutting and welding, using only a different tip for each process. The torch is lighted by use of a flint scratched on a metal surface and, after the acetylene is lighted, oxygen is added by regulation of the valves at the torch handle base. Initially the flame is yellowish white and, upon adjustment, feather edges to a bluish point. In the cutting process the torch heats the metal to a melting point and oxygen jets in the torch tip blow the molten metal “out of the road * * * like a sparkler or some effect — just a bunch of sparks flying from it. * * * According to the type metal that you are using, some will fly as far as two feet and others will fly over — maybe a foot and a half.”

There was evidence to show $34,050 damages to plaintiffs’ buildings and a loss of lumber worth $21,135 as a result of the fire.

The only issue is whether plaintiffs made a submissible case, that is to say, did plaintiffs have sufficient evidence to prove that defendants’ use of an acetylene torch caused the fire on plaintiffs’ premises? They must have proof of this question in order to establish a basis for an inference of defendants’ negligence under the res ipsa loquitur doctrine, Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, 510 [12], Gateway Chemical Co. v. Groves, Mo., 370 S.W.2d 302, Holloway v. Skelly Oil Co., W.D.Mo., 68 F.Supp. 129, 130 [2], Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, 601-602 [1-3]; and, in this determination, all the facts and circumstances favorable to plaintiffs and the reasonable inferences which can be drawn are to be considered. Christie v. Gas Service Co., Mo., 347 S.W.2d 135, 137 [1]. The doctrine is, of course, applicable to operation of an acetylene torch as a cause of fire, Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83, 86 [1, 2]; and, as in any case sought to be made on circumstantial evidence, the circumstances must give rise to an inference of negligence which reasonably follows without guesswork or speculation. Williams v. Cavender, Mo., 378 S.W.2d 537, 541 [2]; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670 [8]; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33 [1]; Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 547 [2].

From the stated evidence a jury would be warranted in finding that Mrs. Evelyn Alber, on October 23, 1963, while at her desk, saw Garney’s employee, Ernest Miller, point an acetylene torch outside the door of Garney’s stall, adjust it from a yellow to a bluish flame, and take it back into the stall while still aflame. She had seen Miller there before and he admitted being on the premises on that morning, together with his acetylene equipment. He was the only person employed there by Garney and admittedly his use of an acetylene torch was a regular part of his work and within the scope of his employment. The jury would be further warranted in finding that Mrs. Alber saw fire “at the rear of the Garney stall” within ten minutes after seeing the torch adjusted and taken back into that stall, and she saw no flame at the stalls on either side of Garney’s.

Fireman Phipps also located the point of origin of the fire as being in the Garney stall behind the truck found there after the fire. His first observation of fire was that of a small fire about a foot and a half above the ground and he located this point in relation to the truck found burned in Garney’s stall. According to him the Garney stall was the most burned out area.

The Garney stall was but 16 x 36 feet, used for mechanic work and maintenance, and Mrs. Alber had seen a torch used therein repair and burning paint from trucks on previous occasions. Prior use of the torch for both cutting and welding was admitted by Miller and he stated that sparks could fly as far as 8 or 10 feet. Robert Alber observed a pan of solvent near Mr. Miller’s workbench about six days before the fire and Miller admitted that he kept gasoline there to clean grease from engine parts. Grease and oil were also observed on the floor, together with grease cloths and rags, and no material was kept for cleaning grease from the floor. Miller’s work of overhauling engines required the use of solvent and rags, and grease and oil dripped on the floor as a result of the work. The presence of all such items a few days before the fire, the need for them in mechanic work performed there, and the admission of mechanic work being performed on October 23, 1963, would warrant an inference that there were flammables present in the stall on that date which could be ignited by a spark of molten metal flying from use of the acetylene torch. The inference is further supported by the evidence that fire was seen at the Garney stall a short time after a torch was seen in a lighted condition there; that he worked alone in a wooden building, and was heard by Harold Perdue to say immediately after the fire started that he was working under a truck and that there was a “poof” and the fire started. Such facts point in the same direction as Mrs. Alber’s having seen the torch and shortly thereafter the. fire, and they are inconsistent with the theory of a slowly kindled fire resulting from an electrical short as suggested by defendants. Mr. Miller’s statement to Perdue was a graphic description of what happens- when vapor from gasoline or other solvent is ignited by a torch, spark, or other fire. And it is consistent with Fireman Phipps’s observation of a small fire and then a “rumble” after which the building was engulfed in flames.

Defendants’ argument suggests a fire starting in the stall south of Garney’s and electricity as a possible cause of fire. Plowever, the west shed contained only lumber and had no electrical supply or appliance except that in the Garney stall, and the evidence was that the electric installation there was accomplished by approved techniques and materials and it tested satisfactorily. Miller had not had any shorts or electrical sparks, his light was not switched on, and his electrical impact wrench functioned properly. There had been no inflammables anywhere on the premises other than in Garney’s stall and Fireman Phipps placed the origin of the fire in the Garney stall. Consequently, it would be reasonable for a jury to infer from this and the other evidence that Miller’s torch used in defendants’ business caused the fire; and even though fire is not ordinarily started by operation of an acetylene torch where the operator uses due care, Gateway Chemical Co. v. Groves, supra (338 S.W.2d 83), once there is evidence to warrant finding a causal connection between operation of the torch and a resultant fire, the res ipsa loquitur doctrine raises the inference of negligence and it is not necessary for a plaintiff to go further and exclude every other reasonable theory of nonliability on the part of a defendant. Adam Hat Stores, Inc. v. Kansas City, Mo., 316 S.W. 2d 594, 600[7].

This case is similar to other cases held to be submissible under circumstantial evidence of operation of a torch in proximity to flammables located in an area where a fire starts. In Matthews v. Carpenter, 231 Miss. 677, 97 So.2d 522, plaintiff’s truck was burned in an automobile repair shop fire. The owner’s employee had been using an acetylene welding torch within four or five feet of the door of a paint shop where a paint spray gun was being used. The welder left for a short interval, after which the paint shop was found to be afire. These circumstances supported a reasonable and logical inference that fire from the welding torch ignited inflammable mist in close proximity and set off the fire. It appears that the defendant owner admitted that his employee had been using his torch, thus clearly raising a jury issue of causation. However, this would merely ease a plaintiff’s burden of proof rather than to constitute a distinction from this case where the evidence supports a reasonable inference that defendant Miller was using an acetylene torch. In Lawrence Warehouse Co. v. Defense Supplies Corp., 9 Cir., 164 F.2d 773, plaintiff’s goods were damaged by a fire in defendant’s warehouse. Against appellant’s contention that the evidence was insufficient to support a finding for plaintiff, the court accepted “as true the finding that the fire originated from the use by McGrew (defendant’s employee) of an acetylene torch in the cutting up of a steel tank in the engine room. The sufficiency of the showing to this effect is hardly open to debate.” 164 F.2d 1. c. 775 [1], The circumstances which supported the finding and quoted observation were that McGrew took his acetylene torch to defendant’s premises on the day preceding the fire for the purpose of cutting up a tank in the engine room. The task was resumed the next morning and shortly after noon a fire broke out near the operation. “There was evidence of the presence of some dark substance on the floor at the corner of the tank. * * * No precautions were taken in the way of providing fire fighting equipment with which such a fire as the torch started could have been put out. This, too, in a structure in which valuable and highly inflammable material was stored * * * ” (164 F.2d 1. c. 776), and it was not shown what material was kindled by the torch. Such circumstances do not appear as convincing and persuasive as those in support of the present case. The fire in John Rooff & Sons, Inc. v. Winterbottom, 249 Iowa 122, 86 N.W.2d 131, was alleged to have been started by an acetylene torch in a res ipsa loquitur pleading. Leo Rooff inspected the building before the torch work commenced. Some cardboard cartons were removed near the wall where the cutting was to be done. They had a fire extinguisher but left it in their truck. Soon after use of the torch began, the operator set fire to a bird’s nest underneath the roof which the operator put out with his gloved hand. Leo then went to an office building to get an extinguisher and when he returned he saw a grass fire beneath where the torch was being used which destroyed the building. A finding was warranted that sparks from the torch, soon after setting the bird’s nest afire, fell on dry grass and set fire to the building and contents, thus creating a jury question of whether the fire was caused by negligent operation of the torch under the circumstances. The apparent admissions of use of the torch and where the fire started merely simplified the burden of proof and do not serve to distinguish the case.

Generally, mere occurrence of fire does not raise a presumption of negligence or cause of fire, Gateway Chemical Co. v. Groves, supra, 370 S.W.2d 1. c. 304[ 1 ]; Craddock v. Greenberg Mercantile, Inc., supra, 297 S.W.2d 1. c. 547[3]; Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692, 700 [16]; Hendricks v. Weaver, Mo., 183 S.W.2d 74, 76[2]; however, the fire on plaintiffs’ premises was, in itself, an important circumstance to be considered in this circumstantial evidence case. Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 714 [3], 72 A.L.R.2d 855. In the last case plaintiff claimed a faulty furnace started the fire. There was evidence that it had not been operating properly necessitating a number of service calls; that the most intense part of the fire was in the room where the furnace was located, and the fire burned the ceiling and roof immediately above it. Defendants’ theory was that the fire was started by defective wiring east of the heating unit and burned under the floor to the room where the unit was located. The latter possibility was held not to prevent a jury from inferring from all the evidence that the fire was triggered by an overheating furnace. In United States v. Todd Engineering Dry Dock & Repair Co., Inc., E.D.La., 53 F.2d 1025, and International M. M. S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855, there was no direct evidence that the torch alleged to have been used set the fires but the courts permitted such an inference from proof tending to show use of a torch in proximity to inflammable materials. See also Hardwick v. Kansas City Gas Co., 355 Mo. 100, 195 S.W.2d 504, where circumstantial evidence that an explosion was caused by a break in defendant’s 4-inch gas main 42 feet away from the center of the explosion was sufficient for a jury to consider although there was evidence, some by experts, of other causes.

Respondent relies heavily on Gateway Chemical Co. v. Groves, supra, 370 S.W.2d 1. c. 304[2, 3] which set out general rules covering liability for fires set by torches taken from 49 A.L.R.2d 369, 371, 374: “It has frequently been held or recognized that liability may be imposed upon the user or his employer for injury or damage resulting from fire started by the use of a blowtorch, at least upon a showing of negligence on the part of such user or his employer, but that there is no liability in the absence of negligence. * * * However, the user of a blowtorch or his employer is not liable for injury or damage caused by fire, in the absence of sufficient proof of causal connection between the use of the torch and the fire. * * * However, the use of a blowtorch prior to a fire does not result in liability for injury or damage caused by the fire, in the absence of negligence on the part of the user of the torch.” And in considering the evidence permitting applicability of res ipsa loquitur, “Ultimately the problem * * * is whether ‘there is anything indicating the defendant’s business was being conducted at the time other than in the usual manner; and there is nothing to show the equipment was defective, the surroundings faulty, or that the accident-otherwise was prima facie due to the defendant’s negligence.’ ” 370 S.W.2d 1. c. • 305 [5 — 6]. See also Hendricks v. Weaver, supra. The court applied the foregoing criteria to determine that there were no facts or circumstances from which the jury reasonably could infer that a torch caused the fire, other than the fire itself in the-general area where the torch was used; however, the circumstances there distinguished that case. Gateway claimed that the fire was in the northwest corner of the basement in the vicinity of the boiler; defendants claimed it was first seen and originated underneath a stairway in a portion of the building under control of plaintiff where rags,' paint, etc., were stored. Defendant’s boilermaker admittedly used a torch inside the steel boiler of the heating plant enclosed in a brick boiler room. And he used a shield against the “dingle berries” from his cutting torch. Thus, there was no showing of lack of care or other improper action by the torch user, and the area where flammables were kept where some said the fire started was an area away from the boiler under control of plaintiff. Under those circumstances the inferential gap could be supplied only by guesswork and conj ecture.

Respondent’s other citations are generally distinguishable in that they did not involve torches. Hendricks v. Weaver, supra, is also subject to distinction on other facts. Plaintiffs’ theory was that defendants negligently allowed a heater to explode and burn the premises resulting in the death of plaintiff’s daughter and the question was whether the evidence showed the origin of the fire. There was evidence that the fire was first discovered in the vicinity of a front stairway but there was no evidence permitting an inference of fire in the office where the stove was located or that the fire started from the stove. So also may Craddock v. Greenberg Mercantile, Inc., supra, be distinguished because plaintiff’s theory that a furnace exploded and caused the fire was completely unsupported where the only evidence was that a damper was found 17 feet from the furnace a week after the alleged explosion. Highland Golf Club, etc. v. Sinclair Refining Co., N.D.Iowa, 59 F.Supp. 911, failed of submission because there was no evidence such as spilling or overflowing of gasoline at the site of a storage barrel from which to infer a fire having started there rather than at some other place in the basement room. Holloway v. Skelly Oil Co., supra, involved an unproved allegation of specific negligence respecting an explosion alleged to result from a leaking gas main. So also was Kansas City Stock Yards Co. v. A. Reich & Sons, supra, a specific negligence case. It involved use of an arc welder on the truck bed and fire found at the truck cab. A verdict for defendant was affirmed, but of further interest is that even though there was no evidence of someone actually seeing sparks from the torch ignite the fire, the court did not question submissibility.

Respondents say that plaintiffs’ case must stand, if at all, on the testimony of Mrs. Alber, and assert her testimony to be so “indefinite, unclear, uncertain, contradictory and incredible that it is not substantial evidence, has no probative value and cannot contribute toward making a submissible case.”

Substantial evidence is, of course, necessary to a submissible case, Boring v. Kansas City Life Ins. Co., Mo., 274 S.W.2d 233, 238[6], Clymer v. Tennison, Mo.App., 384 S.W.2d 829, 834[3], Probst v. Seyer, Mo., 353 S.W.2d 798, 802[1,2]; and “forced and violent inferences should not be indulged,” Davidson v. Hennegin, Mo., 304 S.W.2d 836, 839[1-3].

Respondents’ contention is that there is not substantial evidence to prove that Mrs. Alber saw fire coming from the Garney stall and nowhere else, and point to certain excerpts from her testimony which they suggest demonstrate such conflict, contradiction and irreconcilability as to be destructive of probative value of her testimony. Pritt v. Terminal R. R. Ass’n of St. Louis, 359 Mo. 896, 224 S.W.2d 119, 123 [3]; Adelsberger v. Sheehy, 322 Mo. 954, 59 S.W.2d 644, 647 [6,7]; Stephens v. Thompson, Mo., 293 S.W.2d 392, 394 [1,2]; Missouri Interstate Paper Co. v. Gresham, 233 Mo.App. 5, 116 S.W.2d 228, 230[6]; Brosius v. Weber, 149 Mo.App. 181, 130 S.W. 134, 135. On direct examination she said she first saw “a fire at the rear of the Garney stall,” and answered that there was no flame coming from the stalls to the south and to the north of Garney’s stall. Upon cross-examination she stated that after calling the fire department she came back out and “it was all in flames.” “Q It was all in flames the first time you saw it, wasn’t it? A It was not all in flames, not every hit of it. Q Well, what was in flames then * * *? A All right, there was the catwalk above the door * * * of the Garney stall, and along the floor, and it was just racing up * * *. Q Now on page 10 of your deposition the answer I read you a moment ago where you say 'I ran out to the back and everything was on fire out there?’ A I was excited ; so you get excited, so you say ‘everything is on fire,’ maybe I mean two feet of fire, maybe I meant five feet of fire, I don’t know. Q * * * Did you mean two feet of fire or everything was on fire out there? * * * THE WITNESS: The back end of the Garney stall was all on fire, the east side of it, and I ran back in to call the Fire Department, when I went back out everything was on fire. Q * * * I see, now why was it then on page 10 and in response to Mr. Risjord’s last objection, why was it that you didn’t say about running out and seeing the Garney stall and then running back in and calling the Fire Department and then seeing everything on fire? A I wasn’t looking at any one stall. I just said the Garney stall, which the door was open, that was where the fire was coming out.” Similar suggestion is made in respect to three statements taken from Mrs. Alber by respondents. The statements contain information in the same general tenor as the foregoing testimony and, for that reason, they need not be set out in detail.

Examination of the excerpts and the statements shows the witness to have consistently described the first fire or flame seen as coming from the rear or east side of Garney’s stall. Later on, it was “racing up” toward the catwalk above the stall and, obviously, the whole shed was quickly and ultimately engulfed in flames. The excerpted testimony shows also that even though pressed upon lengthy cross-examination, the witness remained steadfast in her description of the first fire seen coming out of the Garney stall.

Nor does the case hang on her testimony alone, because Fireman Phipps corroborated her in locating the first fire he saw as a small flame just aboveground at á point directly behind the Garney truck in the Garney stall. He also stated this to be the area of the heaviest burning, indicative of the origin of the fire. She was also corroborated by Robert Alber in respect to her ability to see Garney’s stall when seated at her desk. Under these circumstances, it cannot be said that Mrs. Alber’s testimony was plainly self-destructive, and variances, if any, were for the jury in determining the weight and credibility to be given her testimony. Statler v. St. Louis Arena Corp., Mo., 388 S.W.2d 833, 835 [2],

Appellants also charged error in respect to refusal of an offer of proof. It is unnecessary to consider that charge because it has already been determined that plaintiffs made a case, and the matter may not present itself in the same manner upon retrial.

Reversed and remanded.

HOUSER and WELBORN, CG, concur.

PER CURIAM:

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

All concur.


author: HENLEY, Judge.

text:
    John S. LEHMANN, Individually and as Trustee under Will of William S. Barnickel, et al., Plaintiffs-Appellants, v. Genevieve Barnickel JANES et al., Defendants-Appellants.
    No. 51142.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Motion for Rehearing and for Transfer to Court En Banc Denied Dec. 30, 1966.

      Lowenhaupt, Chasnoff, Freeman & Holland, Jacob Chasnoff, Leonard J. Holland, St. Louis, for plaintiffs-appellants, John S. Lehmann, John V. Janes and the Boatmen’s National Bank.
    Fordyce, Mayne, Hartman, Renard & Stribling, Joseph Renard, Robert T. Johnson, St. Louis, for defendants-appellants, Carrie-May Scott Jones, George O. Jones and John R. Thomas.
    Thomas F. McDonald, Henry C. Bryan, Jr., McDonald, Wright & Bryan, St. Louis, for defendants-appellants, Genevieve Bar-nickel Janes, and others.
    David H. McGhee, St. Louis, for defendants-appellants, Allen Williams, and others.
    Henry J. Kaltenbach, Warrenton, Va., Isaac C. Orr, St. Louis, for defendants-appellants, Marceline R. Kaltenbach, and others.
    David Y. Campbell, St. Louis, for respondents, except John M. Hadley, guardian.
    John M. Hadley, St. Louis, pro se.
    Forrest C; Donnell, St. Louis, for said unknown heirs and pro se.
   HENLEY, Judge.

This is a suit to construe the will of William S. Barnickel who died a resident of the City of St. Louis, Missouri, on May 19, 1923. By his will testator left the whole of his estate in trust. Assets of the estate distributed to his trustees consisted solely of ninety per cent of the stock of what is now William S. Barnickel & Company, a corporation, sometimes hereinafter referred to as the Barnickel Company. This stock then had an appraised value of approximately $1,000,000; at the time of trial its value far exceeded that sum; its net annual income distributed to the beneficiaries exceeds $700,000. This court has jurisdiction because the amount in dispute exceeds $15,000.

The will in question is as follows:

“I, the undersigned William S. Barnickel of the City of St. Louis, State of Missouri, make this my last will and testament.
“I appoint Sears Lehmann, John S. Lehmann and Frederick W. Lehmann, Jr., or the survivor or survivors, executors and trustees of my estate, and direct that they furnish a $100,000 bond.
“I leave all of my property both real and personal wherever situated to my trustees, in trust for the following purposes.
“One third (1/3) of the income from said estate is to be paid to my daughter Genevieve Barnickel during her life.
“One sixth (⅛) of the income from said estate is to be paid to my sister Mrs. Della Barnickel Singer during her life.
“One sixth (⅛) of the income from said estate is to be paid to my sister Mrs. Leonora Barnickel Tucker during her life.
“One third (1/3) of the income from said estate to be divided as follows:
Sears Lehmann . . 0.15
Frederick W. Lehmann, Jr. . 0.15
John S. Lehmann . . 0.2
Herbert L. Barthels. . 0.15
Miss Katherine Purcell. . 0.1
Eugene O. Sanguinet. . 0.⅛ 0.05
Erasure OK Wm. S. B.
F. C. Reyburn . . 0.05
F. L. Kelley ... . 0.05
C. C. Averill .. . 0.05
Bernard Keiser or their heirs. .. 0.05
“This trust to continue for the same period as the trust of that portion of my estate willed to my daughter Genevieve, at which time this interest shall vest absolutely in the foregoing.
“In event either or both of my said sisters die before my said daughter Genevieve Barnickel, the income otherwise payable to said sister or sisters shall be paid to my said daughter Genevieve Barnickel. Upon the death of my said daughter Genevieve Barnickel the income otherwise payable to her shall be paid to her children in equal shares, until the youngest of said children is twenty-one years old, at which time this trust as to the interest of my said daughter shall cease, and said estate shall be divided equally among said children, the child or children of any deceased child to take the share of said deceased child.
“In event my daughter Genevieve dies-without leaving any children, or in event all of her children should die without issue before the termination of this trust as specified in the foregoing paragraph then this trust as to the interest of my said daughter Genevieve shall cease, and said estate shall be divided as follows:
Sears Lehmann . 0.15
Frederick W. Lehmann. 0.15
John S. Lehmann . 0.2
Miss Katherine Purcell... 0.1
Herbert L. Barthels . 0.15
Eugene O. Sanguinet . 0.05
F. C. Reyburn . 0.05
F. L. Kelley. 0.05
C. C. Averill. 0.05
Bernard Keiser . 0.05 or their heirs.
“Upon the death of either or both of my said sisters the one sixth (⅛) interest left to each of them for life shall be added to and treated exactly the same as the one third interest of my said daughter Genevieve Barnickel.
“I direct that my executors and trustees shall continue the business of William S. Barnickel and Company, a partnership in which I have a nine tenths ¾0 interest and John S. Lehmann has a one tenth (Mo) interest, which is also our respective interest in the patents issued to and applied for by me. I also direct that my executors and trustees be authorized to incorporate said partnership business at their discretion.
“In event of the death resignation disqualification or failure to qualify of any of said executors and trustees the remaining two are authorized to select a third with the same powers as if appointed by this will.
“My executors and trustees are authorized to sell and reinvest the proceeds of any of the property either real or personal left by me.
“In witness whereof I have hereunto set my hand and affixed my seal this first day of August Nineteen hundred and twenty one, in the City of St. Louis Missouri.”

For convenience, we will refer to the “one-third of the income from said estate * * * t0 * * * my daughter, Genevieve Barnickel” (now Mrs. John V. Janes) as the Janes Trust; the “one-third of the income from said estate to be divided” between ten named individuals according to certain percentages as the Associates Trust, and those ten individuals sometimes as the Associates.

Testator’s two sisters, Mrs. Della Bar-nickel Singer and Mrs. Leonora Barnickel Tucker, are both deceased. His daughter, Genevieve Barnickel, married John V. Janes, is still living, and has four.children, the youngest of whom is now over 21 years of age. All of the Associates survived testator; five are now deceased, being: Sears Lehmann, Frederick W. Lehmann, (the same person also designated in the will as Frederick W. Lehmann, Jr.), Eugene O. Sanguinet, F. C. Reyburn, and C. C. Averill. The five Associates still living are: Katherine Purcell, now Mrs. Wilbur C. Adams, Herbert L. Barthels, Forrest L. Kelley, Bernard Keiser, and John S. Lehmann.

Sears Lehmann died intestate in 1935, a resident of Missouri, and was survived by his wife and two children, all of whom are now living. Frederick W. Lehmann died testate in 1962 (after the trial of this suit and while it was under advisement), a resident of Iowa, and was survived by his wife and two children, all of whom are now living. Eugene O. Sanguinet died testate in 1930, a resident of Missouri, and was survived by his wife and seven brothers, but no descendants. By his will he left his entire estate to his widow, Clara Ann Sangui-net, now deceased. All but one of the brothers of Eugene O. Sanguinet are now deceased, survived by a large number of descendants now living. F. C. Reyburn died intestate in 1929, a resident of California, survived by his wife, his mother, four brothers, and one sister, but no descendants. The California court in which his estate was administered distributed his estate to his widow as sole heir under the laws of that state. His mother and two brothers are now deceased, one of the brothers leaving descendants now living. C. C. Averill died testate in 1928, a resident of Texas, survived by his wife and three children. By his will his entire estate was left to his widow. One child has since died without descendants.

Two of the original trustees are dead: Sears Lehmann and Frederick W. Leh-mann. On the death of Sears Lehmann the surviving trustees appointed John V. Janes, husband of Genevieve Barnickel, as successor co-trustee. On the later death of Frederick W. Lehmann, the trial court appointed The Boatmen’s National Bank of St. Louis as successor co-trustee pendente lite. Those now serving as trustees are John S. Lehmann, John V. Janes and the Bank. As indicated, the trust is still alive and active.

John S. Lehmann (one of the trustees and one of the Associates) was the owner of the other ten per cent interest in the stock of the Barnickel Company at the death of testator, and apparently is still owner of that interest.

Of the three plaintiffs, John S. Lehmann prosecutes this suit in his individual capacity and in his capacity as one of the trustees. The defendants (over 130 in number) may be divided into the following general categories: (1) all living beneficiaries named in the will, (2) living spouses of all ten named Associates, (3) living heirs, and heirs apparent of all named beneficiaries whether living or dead (other than testator’s two sisters whose life interests terminated on their respective deaths), (4) certain assignees of name beneficiaries, (S) all persons at present entitled to, or who claim to be entitled to, share in the income of the trust or in the principal were the trust to terminate now, (6) all living members of the several classes of beneficiaries who do, or may be entitled to claim an interest in trust income and principal, and (7) the unknown heirs, grantees or successors of the ten named Associates.

The pleadings of the several parties and pre-trial record memoranda occupy in excess of 160 pages of the transcript. We will not attempt to summarize the pleadings. A brief summary of plaintiff’s prayer, a summary of the findings and decree of the trial court, and a statement of the contentions of the several parties will present adequately the issues.

Plaintiffs prayed that the court construe the will and determine (1) the meaning of its provisions pertaining to the ten named Associates, (2) whether the trustees should recognize an assignment of a purportedly fixed interest in the trust estate by a person purportedly succeeding to an interest therein by reason of the death of a named beneficiary, and (3) whether successor trustees have the same powers as the original trustees to appoint a successor trustee whenever a vacancy occurs.

We summarize those portions of the decree as to which questions have been raised and briefed on this appeal. Briefly, the court decreed :

1. That an equitable estate or interest in one-third of the income and corpus of the trust estate vested immediately in the Associates (according to their respective percentages of interest in said one-third) on the death of testator; that on the death of testator, each of the Associates had * * * the right to transfer or alienate their respective fractional equitable interests in the Associates Trust by assignment, by will, intestate succession, or in any other or different manner * * * ”; that upon the death of an Associate prior to termination of the trust, his vested equitable estate or interest in the Associates Trust (except such as may have been disposed of by him) becomes a part of the Associate’s estate and passes from the Associate (not from Testator) as part of his estate.

2. That the Associates have equitable estates or interests in the corpus of the Janes Trust (two-thirds of the trust estate) contingent upon Genevieve Barnickel Janes dying without leaving children or all her children dying without issue before termination of the trust; that these contingent interests “ * * * belonged to them [Associates] effective at the date of testator’s death, and any alienation of their respective contingent remainders by them whether by will, by assignment, by intestate succession or by contract, is effective subject only to the happening of the contingency * * * ”, and that these interests (and that of any alienees) would be defeated on happening of the contingency; that upon the death of an Associate prior to termination of the trust, this interest in the Janes Trust (except such part as may have been disposed of by him) becomes a part of his estate and passes from the Associate (not from testator) as part of his estate.

3. “That the term ‘or their heirs’ as used in his [testator’s] will * * * vests no interest whatever in the prospective heirs of the Associates * *

4. That successor trustees do not have the power to appoint a successor trustee whenever a vacancy occurs.

5. That the pleadings raise no issue as to the validity of a 1937 agreement between the widow of E. O. Sanguinet and the brothers and descendants of a deceased brother of E. O. Sanguinet purporting to fix the interest of those persons in the Sanguinet share of the trust estate.

Six groups of parties appeal: (1) the trustees, (2) defendants, Genevieve Bar-nickel Janes and others of like interest, (3) defendants, Allen Williams, Michael V. Janes, and minor defendants of like interest by their guardian ad litem, (4) defendants, Marceline R. Kaltenbach and others of like interest, (5) defendants, the unknown heirs of the ten named Associates, (6) defendants, Carrie-May Scott Jones, et al., as trustees under the will of Clara Ann Sanguinet, deceased widow of Eugene O. Sanguinet.

The principal issues are when, and in whom, the interests of the Associates vest in (1) the Associates Trust and (2) the Janes Trust.

Defendants-Appellants, Genevieve Bar-nickel Janes, and others of like interest, Allen Williams, Michael V. Janes and minor defendants of like interest by their guardian ad litem, joining in one brief, as well as defendants, Marceline R. Kalten-bach and others of like interest, in a separate supporting brief, contend:

(1) that prior to termination of the trust the ten named Associates, or their heirs, take as beneficiaries only a contingent interest in the income of the Associates Trust; that upon the death of an Associate during the life of the trust each distribution of income from Associates Trust which would have been made to that Associate if living, is to be made to his heirs ascertained at the time of such distribution (i. e., heirs determined as if the Associate had died immediately prior to each distribution) according to the laws of Missouri in effect at the date of the Associate’s death;

(2) that prior to termination of the trust the ten named Associates, or their heirs, have contingent interests only in the principal or corpus of the Associates Trust; that upon termination of the trust, the share of corpus of Associates Trust held in trust for any then deceased Associate during his lifetime is to be distributed to his heirs ascertained at the time of such termination (i. e., heirs determined as if the Associate had died immediately prior to trust termination) according to the laws of Missouri in effect at the date of the Associate’s death;

(3) that the interests of the ten named Associates, or their heirs, in the corpus of the Janes Trust are contingent as to person and event until termination of the trust; that such are not vested interests; that upon termination of the trust, if there is no child of Genevieve Barnickel Janes or issue thereof then living, the corpus of the Janes trust vests in the Associates then living and in the heirs at law of deceased Associates according to the percentage of interest of each Associate specified in the will; that the share of the corpus of an Associate deceased at termination of the trust is to be distributed to his heirs ascertained at the time of such termination (i. e., heirs determined as if the Associate had died immediately prior to trust termination) according to the laws of Missouri in effect at the date of the Associates’ death;

(4) that the interest of an Associate or his heirs in either the Associates Trust or the Janes Trust may be sold or otherwise transferred.

Defendants-Appellants, the unknown heirs of the ten named Associates, contend that at the death of an Associate before termination of the trust his heirs (determined as of the date of death by the law of the domicile of Associate) take immediately by substitution for and in place of the Associate a “ * * * vested fee simple equitable estate * * * ” (a) in the Associate’s share of the income of Associates Trust during the life of the trust, (b) in the Associate’s share of the corpus of the Associates Trust at its termination, and (c) in the Associate’s share of the corpus of the Janes Trust at its termination contingent upon there being no child of Genevieve Barnickel Janes or issue thereof living at termination of the trust.

Defendants-Respondents, William M. Sanguinet and others of like interest in one brief as well as defendants-respondents, Carrie-May Scott Jones and others of like interest in another brief contend:

(1) that an indefeasible equitable estate or interest in one-third (Associates Trust) of the income and corpus of the trust estate vested immediately in the Associates (according to their respective percentages of interest in said one-third) on the death of testator, only the right of possession being postponed until termination of the trust;

(2) that the Associates have a “vested equitable fee” or “transmissible contingent” interest in two-thirds (Janes Trust) of the corpus of the trust estate.

In Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, this court en banc said at 1. c. 23: “The ordinary, primary meaning is to be given to the language of the will, unless other terms used disclose that such meaning is repugnant to the testator’s intent as it appears from the whole will. Mace v. Hollenbeck, Mo.Sup., 175 S.W. 876; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, 264; Smoot v. Harbur, 357 Mo. 511, 209 S.W.2d 249, 251. Any conclusion as to what the testator may have had in mind must be based upon the legal effect of the language used in the will itself. Middleton v. Dudding, Mo.Sup., 183 S.W. 443, 444; * * * Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d 857, 858 * * See also St. Louis Union Trust Company v. Krueger, Mo., 377 S.W.2d 303, 304 [1]. “When the terms of a will are not so plain and unambiguous as to leave no room for doubt or construction as to what the testator intended, * * * ” we may, to ascertain testator’s intent, consider the facts and circumstances surrounding testator when he made his will, such as : the amount, nature, extent and condition of his property; his relation to or association with persons having any interest in or relationship with property the testator has an interest in; the natural objects of his bounty; any motives which reasonably could have actuated testator in the disposition of his property. Housman v. Lewellen, supra; Wooley v. Hays, 285 Mo. 566, 226 S.W. 842, 844, 16 A.L.R. 1 [3] ; Lynn v. Stricker, Mo.App., 213 S.W.2d 672, 675 [1]; § 474.430, RSMo 1959, V.A.M.S.

Approximately seven years before execution of his will on August 1, 1921, testator developed a process to remove salt water from crude petroleum. In 1914 he applied for, and was later granted, a patent on the process. His friend and attorney, John S. Lehmann, assisted him in securing the patent and for these and other services was given a 10% interest in the patent and the business to be developed from it. With this process, ten friends (the Associates) and little or no capital he founded the business that was to grow into William S. Bar-nickel & Company. All of the Associates were close personal friends of Mr. Bar-nickel and key employees of, or advisors to, the business and its founder. It takes little imagination to see the struggle and striving of this close-knit group of friends and associates to advance and promote the welfare of this new business venture throughout its beginning years. About a year or two before Mr. Barnickel executed his will the business began to grow and prosper. Approximately six weeks before he executed his will his wife divorced him, and was awarded the custody of their only child, Genevieve (then 15 years of age), and $20,000 alimony in gross. John S. Leh-mann represented Mr. Barnickel in the divorce suit. He testified that Mr. Bar-nickel and his wife “ * * * didn’t part friends * * * ”; that there was some ill feeling toward his divorced wife when he made his will. Five days after the record of the alimony judgment was satisfied, Mr. Barnickel made his will. At that time he was 43 years of age; his parents were dead but he had two living sisters. His business had begun to prosper and he no doubt foresaw that under proper and interested management, it would continue to grow and prosper, that its potential was unlimited. The natural object of his bounty, the only child he was to have, was then living with her mother. No doubt the material thing closest to his heart was the new and exciting business he and his Associates were developing with marked success. There is no evidence that he anticipated an early death, but it may be significant that he died a comparatively young man less than two years after execution of his will. During this period his daughter chose to leave her mother and came to live with her father. It was in these circumstances and conditions that Mr. Barnickel executed his will August 1, 1921, and in their light that we seek to ascertain his intent and meaning from the whole will.

As stated, his principal asset was his interest in the Barnickel Company and the one person for whose welfare he was most concerned was his daughter. If this business were not held intact after his death, his prospects of providing for the security of his daughter were dim; if held intact in such manner as to permit and encourage its growth, his prospects of providing security for his daughter were enhanced. Aside from his daughter and sisters, those persons for whose welfare he would also be concerned would be the trusted friends whose loyalty and interest had contributed to the growth of his business. Also, as stated, the material thing closest to him was this business bearing his name, and he no doubt desired its success for its sake alone. To assure, so far as possible, the continued growth and prosperity of this business the natural thing for him to do was to turn to these friends, the ten Associates who knew the business and were concerned with its welfare; but only one of whom then had a financial interest in it. His chances of holding his organization intact and assuring the continued success of his business after his death certainly would be enhanced if he gave all these important, key personnel a financial interest in the business. All the parties suggest that it was also Mr. Bar-nickel’s intent to foreclose, so far as possible, the possibility that his ex-wife (then the only heir apparent of his daughter, other than himself) would ever take any part of his estate, and that to do so he need die fully testate. In the light of these facts and circumstances we have no difficulty in determining from the words of his will his intent as to when, and in whom, the Associates Trust would vest.

Obviously, it was the intent of the testator to dispose of his whole estate, leaving none of it to be disposed of by the statutes of descent. That this was his intent and that he accomplished this purpose is clearly evidenced by his words: “I leave all of my property * * * to my trustees, in trust for the following purposes.” (Emphasis supplied.) This is further evidenced by his plan for distribution of all the corpus on termination of the trust. His testamentary scheme or plan for disposition of his estate is quite clear. To keep his business intact he left his whole interest in it in trust to trustees and directed that they continue to operate the business. To assure interested continuity of management he named three trusted friends (Associates) as trustees, one of whom was the owner of the other one-tenth interest in the business. To assure the trustees ample time within which to develop and promote the further success of the business, he provided that the life of the trust should continue until the death of his daughter (then only 15 years of age) without children or until her youngest child reached the age of twenty-one years. To recognize and reward these loyal Associates, but primarily to hold and guarantee the continued interest and contribution of these trusted key personnel and thereby further assure, so far as possible, the success of the business, he gave each a part of his estate so that each would have a financial interest in the business and could share in its growth and the fruits of their labor. Time and events have proven the wisdom of his plan.

Of course, the legal title to his whole estate vested, and until termination of the trust remains vested, in his trustees. We conclude that the equitable title or estate in one-third (of both income and corpus) of his estate vested immediately on testator’s death in the ten named Associates in that percentage of this one-third set opposite the name of each Associate in the will, these ten Associates having survived the testator. It necessarily follows that these vested equitable estates or interests were and are alienable by assignment, or by will or intestate succession according to the laws of the domicile of the respective owners thereof. In re Zook’s Estate, 317 Mo. 986, 296 S.W. 778, 781 [5], Upon termination of the trust the legal title to this one-third of testator’s estate unites with the equitable title in those persons in whom the equitable estate is vested. This conclusion is supported by these authorities: Walter v. Dickmann, 274 Mo. 185, 202 S.W. 537, 538-539; Plummer v. Brown, 315 Mo. 627, 287 S.W. 316; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, 264, 265 [2, 3]; Bredell et al. v. Collier et al., 40 Mo. 287; Annotation, 174 A.L.R. 319, et seq.; Simmons v. Cabanne, 177 Mo. 336, 76 S.W. 618; Morrell v. Building Management, Inc., 241 N.C. 264, 84 S.E.2d 910. For a brief statement of the foundation for the above conclusion see Restatement of the Law, Property, Vol. 1, § 37, p. 102, comment 1 from which we quote a part: “When a will contains a limitation of a present estate to ‘A or his heirs’ the rule stated in Comment d that a limitation effective in a deed to create an estate in fee simple absolute has like effect in a will, applies and A acquires an estate in fee simple absolute if alive when the testator dies (see § 27, Comment d). If A is then dead — and this is not unlikely in the case of a will — the persons who at that time are the heirs of A acquire an estate in fee simple absolute * * (Emphasis ours.) The effect of this rule is not changed by the creation of a testamentary trust whereby the legal and equitable titles are separated; the mere fact that the control and management of the trust estate is by trustees, with the legal title in them, does not prevent vesting of the equitable estate in the beneficiaries, the Associates. Deacon v. St. Louis Union Trust Co., supra, 197 S.W. 1. c. 268 [14]; Bredell et al. v. Collier, et al., supra, 40 Mo. 1. c. 325-327.

Defendants-Appellants, Janes, et al. and Kaltenbach et al., contend that the following language of the will postpones vesting of title to the corpus of the Associates Trust until termination of the trust; “This trust to continue for the same period as the trust of that portion of my estate willed to my daughter Genevieve, at which time this interest shall vest absolutely in the foregoing.” They argue that the word “interest,” as used above, encompasses “title” and “estate;” therefore, testator’s use of the word “vest” in connection with “interest” clearly relates to vesting of title, not possession.

The primary purpose of the above-quoted language of the will was to designate or fix the life of the Associates Trust, not to postpone vesting of title or estate. “Such expressions as are found in the above quotation have frequently come before the courts for consideration, and have uniformly been construed, when considered in the light of foregoing facts, to relate to the times when the [cestuis que trust] shall have possession, and have nothing to do with the vesting of the estate.” Dunbar v. Sims, 283 Mo. 356, 222 S.W. 838, 839 [2]; Legg v. Wagner, Mo., 155 S.W.2d 146, 149 [9]; Williams v. Reid, Mo., 37 S.W.2d 537.

These appellants further contend that “ * * * in the Barnickel will alternate remainders are designated [to take the Associates Trust] — the heirs of the respective named Associates.” They also argue that other language of the will and the circumstances surrounding the testator at the time the will was made indicate that the Associates take only a contingent interest in the Associates Trust, and that vesting of the interest is postponed until termination of the trust. The other language in the will to which appellants refer is that pertaining to the termination of the trust for his daughter and the division of corpus of the Janes Trust among the Associates should his daughter die without children or her children without issue before termination. Appellants characterize the interest of Associates in the Janes Trust as a contingent remainder, and on that premise insist that since both the Janes Trust and the Associates Trust terminate at the same time it is only reasonable to conclude that the Associates Trust is also contingent.

As to the contention that alternate remainders are designated, no remainder interest is created in the Associates Trust by the trust instrument; no preceding estate is created, thus no remainder. Had the testator intended to create a life or other preceding estate in the Associates and a remainder (either vested or contingent) in their heirs he could have done so, but he did not. Had the testator intended that the Associates take only a contingent interest in the Associates Trust he could have so provided, but the fact that the Janes Trust and Associates Trust terminate at the same time is not indicative that he intended their interests be contingent on any event. We have said “ * * * that the law favors the vesting of estates, and in the absence of words expressing a clear intent to the contrary an estate will be construed as vested rather than contingent, and, consistently with the testator’s intention, the estate will be construed to vest at the earliest possible time, so that, unless otherwise clearly expressed, it will vest immediately upon the testator’s death.” Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, 265 [4]. (Emphasis supplied.) This rule applies to equitable estates or interests.

We conclude from the circumstances surrounding testator at the time he made his will, and from his will, that he intended to, and did, give Associates a present indefeasible interest, an equitable fee simple interest, in one-third of his estate; that this interest vested in Associates immediately on testator’s death; and, that possession only of the corpus is postponed until termination of the trust. We have considered the authorities cited by all appellants and their several contentions, but find them not persuasive. The limits of an opinion preclude our discussion of every authority cited and the details of every facet of their several contentions. What we have said effectively rules upon the contentions of all appellants.

As stated, both of testator’s sisters, each of whom had an equitable life estate in one-sixth of the trust, are now dead, and their interests have merged with that of testator’s daughter, Genevieve Barnickel Janes, so that the daughter’s interest, which we have designated the Janes Trust, is now two-thirds. For convenience we refer again to those paragraphs of the will creating the Janes Trust and providing for its ultimate disposition on trust termination, and for this purpose consider that the total of one-third to the two sisters has merged with the interest of the daughter.

Testator gave the income from two-thirds of the trust to his daughter Genevieve for her life and provided that upon her death * * * the income otherwise payable to her shall be paid to her children in equal shares, until the youngest of said children is twenty-one years old, at which time this trust as to the interest of my said daughter shall cease, and said estate shall be divided equally among said children, the child or children of any deceased child to take the share of said deceased child.” In the next paragraph, testator gives this two-thirds interest in the trust to the Associates or their heirs upon termination of the trust should his daughter die without leaving children or descendants thereof before termination. The record shows that at the time this action was tried Genevieve Barnickel Janes had four living children, and it is said that she had many living grandchildren: For this reason, respondents say, “ * * * it is highly improbable that [Genevieve] will not be survived by descendants.” We assume that it is for the latter reason that respondents treat very briefly with the question we must now discuss.

Again, such interest as Genevieve, her children or issue of deceased children, and Associates, took in this two-thirds of the trust estate was an equitable estate or title, the legal title being vested in the trustees. Obviously, Genevieve took an equitable life estate in the Janes Trust. It is clear that testator had his bloodline in mind and that he intended that this two-thirds interest go to her descendants upon her death, with only possession of the corpus withheld until termination of the trust on Genevieve’s youngest daughter attaining the age of twenty-one years. It is equally clear that testator intended that the corpus of this two-thirds interest go to his Associates or their heirs should his daughter die without children or her children die without issue before trust termination.

We refer again to the contentions of the appellants, unknown heirs of the Associates, but need not restate them.

Our understanding is that the appellants, Janes, et al., Kaltenbach, et al., and Williams, et al., contend that the interests of the Associates in the Janes Trust did not vest on the death of Mr. Barnickel and cannot vest until trust termination; that such interests are contingent as to person and event until trust termination; that, therefore, should the Janes Trust terminate without a child or issue of a deceased child of Genevieve surviving, the share of an Associate who had died prior to trust termination would go to his heirs at law, those heirs to be determined according to the laws of Missouri in effect at the death of that Associate. Consequently, it would seem, the effect of their contentions is that this interest of Associates is inalienable prior to trust termination, yet, they request that we find that such interests as they say Associates have “ * * * may be sold or otherwise transferred.”

What interest did the Associates acquire in the corpus of the Janes Trust?

By his will testator provided a life estate in two-thirds of the trust estate for his daughter, Genevieve, with alternate contingent remainders over. In other words, he created: (1) a life estate, and (2) two remainders, each a substitute or alternative for the other, only one of which can possibly vest because of the contingencies hereinafter mentioned. These two remainders are: (1) to the children and issue of deceased children of Genevieve, contingent upon there being a child or children or issue of a deceased child living when the trust terminates; (2) to the Associates or their heirs, contingent upon there being no child or children or issue of a deceased child of Genevieve living when the trust terminates. 31 C.J.S. Estates § 75, p. 152; 33 Am.Jur., p. 542, § 85; also see Tapley v. Dill, 358 Mo. 824, 217 S.W.2d 369, 372, and authorities collected in footnote 4.

While testator could have, he did not condition the contingent remainder interests of Associates in the Janes Trust upon their being alive on trust termination; therefore, these interests passed to Associates immediately on testator’s death. Tapley v. Dill, supra, 217 S.W.2d 1. c. 372, 373. We have held that contingent remainders are alienable. See Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310, 311 [3], and authorities collected in footnote 1.

We hold: (1) that upon the death of testator the Associates took an alternative contingent remainder interest in two-thirds of the corpus of the trust estate according to their respective percentages of interest in that two-thirds as specified in the will; and, (2) that those interests were and are alienable by assignment, by bequest or descent. This holding necessarily determines the contentions of the unknown heirs of Associates.

Another or side issue is presented by the appeal from a part of the decree by defendant, Carrie-May Scott Jones, and defendants, George O. Jones and John R. Thomas as trustees under the will of Clara Ann Sanguinet, deceased. Their appeal is limited to that part of the decree holding: (1) that the pleadings raise no issue " * * * as to the invalidity of * * * ” a certain “Conveyance and Agreement” dated September 2, 1937, executed by Clara Ann Sanguinet, widow of Eugene O. San-guinet, and the brothers and descendants of a deceased brother of Eugene O. Sanguinet; (2) that the Trustees of the Barnickel estate must recognize the above agreement because it was executed by all parties then having any interest in the Sanguinet share of the trust estate.

We state as briefly as possible the facts necessary to an understanding of the issues raised by this appeal, Eugene O. Sanguinet, one of the Associates, died testate in 1930 leaving all of his property, including his interest in the Barnickel Trust, to his widow, Clara Ann Sanguinet. He left no descendants. Shortly after his death a controversy arose between his widow and his seven brothers as to the ownership and disposition of his interest in the Barnickel Trust. The widow claimed that she was the owner as the sole legatee of her husband; the brothers claimed that they were the owners as the only heirs at law of their deceased brother, that is, that their brother’s interest in the trust was contingent upon his being alive when the trust terminated and since he did not survive that event his interest in the trust passed to his brothers. During this controversy one of the brothers, Marshall R. Sanguinet, died testate leaving a widow and descendants. In 1937 this controversy was compromised and settled by contract (referred to in the briefs and above as “Conveyance and Agreement;” hereinafter referred to as the 1937 contract) between the widow, six of his brothers and the descendants of the deceased brother. By this contract the interest of Eugene O. San-guinet in the trust was divided as follows: (1) all of the income to his widow during her lifetime; (2) one-half his interest to his widow which carried with it, after her death, one-half of the income; (3) one-half of his interest to his brothers and descendants of the deceased brothers which carried with it, after the widow’s death, one-half of the income.

The widow, Clara Ann Sanguinet, died testate in 1952. Through her will, and by mesne conveyances, her interest in the Bar-nickel estate is now divided: two-thirds to Carrie-May Scott Jones, a niece who was reared in the Sanguinet home; one-third to George O. Jones and John R. Thomas as trustees for Carrie-May Scott Jones for her life with remainder over to her son, George O. Jones.

These appellants took the position in the trial court that the 1937 contract was void ab initio. This position was untenable and they pointedly abandon it in their brief. They also, as an alternative, took the position that if the contract was valid, it was unenforceable between them and those heirs at law of Eugene O. Sanguinet (descendants of Sanguinet brothers) who did not sign the contract. As we understand their position, they are saying that there are now descendants of Sanguinet brothers who did not exist when the 1937 contract was executed, and that the contract is not enforceable between appellants and those persons, because it is not binding upon the latter and, therefore, not binding upon appellants. Further, as we understand their position, they contended in the trial court, and contend here, that the contract is unenforceable because these new descendants may, might or could claim an interest in the Sanguinet share “ * * * as purchasers under the Bamickel will * * * ” (and not through their ancestor under the 1937 contract) if it be determined that the Associate’s interest in the trust estate did not vest upon Mr. Barnickel’s death and was contingent (therefore, inalienable) upon the Associate being alive when the trust terminated. We have determined the latter question and thereby eliminated the premise on which appellants’ contention is based. So much for their position and contentions which we have related (at the expense of desirable brevity) for the purpose of putting their claim of error in proper perspective.

We have read and studied the pleadings carefully. The validity or enforceability of the 1937 contract is not raised as an issue by plaintiffs’ petition to construe the will, nor made an issue by the pleadings of the two groups of defendants who would be directly concerned with the validity of the contract. While the petition alleges the existence of the contract and prays that the court determine whether the trustees should recognize it, no allegation is made that it is either valid or invalid; moreover, plaintiffs took the position at the trial, and take the same position in this court, that they raised no issue as to the validity of the contract. These appellants, by answer alleged that the contract was void as between them and descendants of Sanguinet brothers who might have a contingent interest, and claim such interest directly under the Barnickel will rather than by inheritance through their ancestor who did sign the contract. No issue was joined on this question by a pleading of either the plaintiffs or the other defendants. These descendants of Sanguinet brothers took the position in their pleadings that the interest of Eugene O. Sanguinet in the trust estate was vested, not contingent, and that they claimed by inheritance through their ancestor under the 1937 contract.

The trial court did not err in ruling that the validity of the 1937 contract was not an issue and that the contract be recognized by the trustees.

The plaintiffs appeal from that portion of the trial court’s decree holding that successor trustees do not have the power to appoint a successor trustee whenever a vacancy occurs. All of the respondents and the other appellants, except appellants, the unknown heirs of Associates, agree in their briefs that the trial court erred in so holding. The question is not discussed in the brief of the last-mentioned appellants. That portion of the will requiring construction reads: “In the event of the death resignation disqualification or failure to qualify of any of said * * * trustees the remaining two are authorized to select a third with the same powers as if appointed by this will.” The trial court construed this provision “ * * * to apply only to managerial and administrative powers and not to the power given to any two of the original Trustees to appoint a successor Trustee to fill a vacancy in office.”

All three of the trustees appointed by the will qualified and served until 1935. In that year, Sears Lehmann, one of the original trustees, died, and the remaining two trustees, John S. Lehmann and Frederick W. Lehmann, appointed John V. Janes, husband of Genevieve Barnickel, as successor trustee. In January, 1962, while this suit was pending, Frederick W. Lehmann died. But during his lifetime he and the other two trustees, apparently in anticipation of his impending death, appointed The Boatmen’s National Bank of St. Louis as his successor. Shortly after his death, John S. Lehmann and John V. Janes, the surviving plaintiffs-trustees, suggested this death and moved the appointment and substitution of the Bank as successor co-trustee. The motion was denied without prejudice, but the court of its own motion appointed the Bank as successor co-trustee pendente lite, and substituted it as a party plaintiff. We have related the trial court’s construction of this provision and its decree. Plaintiffs sought in the trial court, and seek here, a modification of this decree to conform to their contentions that the power to appoint a successor trustee is not limited to two of the original trustees but that such power is granted also to successor trustees.

This language of the will is clear and unambiguous. As to the power of trustees to appoint a successor there is no manifestation of an intent on the part of the testator that that power be exercised only by trustees originally named. The will expressly provides that two of the named trustees may select a third “ * * * with the same powers as if appointed by this will.” Had testator intended that the powers of successor trustees include only management of the trust estate he could have said so, but he did not. The strong inference from the broad language used is that he intended that successor trustees have, as he said, the same powers as trustees originally named, including the authority to select a successor. Scott on Trusts, Vol. II, p. 1478, § 196; Bakewell v. Mercantile Trust Co., Mo., 319 S.W.2d 600, 605 [4].

We hold that successor trustees have all the powers as the trustees originally named and are authorized to select a successor when a vacancy occurs. In holding to the contrary the trial court erred, and the decree should be modified.

The case is remanded to the trial court with directions to modify its decree to conform with our ruling on the power of successor trustees to select a successor trustee. As so modified, the decree is affirmed.

All concur.