author: COIL, Commissioner.

text:
    Graham W. McGOWAN, Mrs. Mary Virginia: (McGowan) Moynahan, Robert Hale McGowan, and Mrs. Barbara Ann (McGowan) Fayette, Appellants, v. ST. LOUIS UNION TRUST COMPANY, a Corporation, of St. Louis, Missouri, Respondent.
    No. 49393.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.

      Spencer M. Thomas, James E. Godfrey, Thomas, Busse, Weiss, Cullen & Godfrey, St. Louis, Shea & Gardner, Washington, D. C., Alfred L. Scanlan, Washington, D. C., for appellants.
    R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, Bryan, Cave, McPheeters & Mc-Roberts, St. Louis, of counsel, for respondent.
   COIL, Commissioner.

This case has come on reassignment to the writer, not present when the case was presented orally but who thereafter listened to the recorded arguments.

Appellants sought to recover a money judgment (in excess of $15,000) against respondent for alleged breaches of trust. The trial chancellor entered a judgment dismissing the suit and this appeal ensued.

All the relevant facts- were stipulated prior to trial and, other than varying constructions of, and differing inferences from, certain facts and exhibits, there is no dispute as to the facts.

On October 2, 1901, the only lineal descendants and heirs at law of Mr. and Mrs. George S. Myers were their three adult and married daughters, Mildred (Mrs. John S. Cravens), Georgie (Mrs. Herbert Coppell), and Bob (Mrs. Graham E. Babcock), and one living grandson, George Myers Church, the son of Mrs. Coppell by her previous marriage to Mr. Church. On that date, October 2, 1901, Mr. Myers caused to be formed a Missouri corporation named “The Coppell-Cravens-Babcock Real Estate & Investment Company,” and furnished the full amount of its capital, $100,000, to be represented by a thousand shares of $100 each, of which 991 shares were issued to Mr. Myers. The term of the corporation’s existence was fixed at fifty years. On October 30, 1901, a 4-year-old child, Doris Dolan, was legally adopted by Mr. and Mrs. Graham E. Babcock. In January 1904, Mr. Myers executed and delivered to respondent, St. Louis Union Trust Company, a trust indenture, and the trust therein stated was accepted and thereafter administered by respondent. Under its terms and provisions Mr. Myers delivered to respondent as trustee 989 shares of Coppell-Cravens-Bab-cock Real Estate and Investment Company with instructions to hold said stock and vote it at all meetings of the corporation as directed in writing by Mr. Myers during his lifetime and, after his death, as directed in writing by a majority of the surviving beneficiaries of the trust, and during the existence of the corporation to collect the net income and dividends on the stock and to pay the same to “the beneficiaries hereinafter named as follows:

“To GEORGIE MYERS COPPELL, MILDRED MYERS CRAVENS, BOB TANSEY BABCOCK, daughters of the party of the first part, and GEORGE MYERS CHURCH, grandson of the party of the first part, during their joint lives, each the one-fourth part of such net income and dividends; the portion going to said grandson, shall, during his minority, be paid to the party of the first part, George S. Myers, and after his death to his guardian, and after said grandson becomes of age, to him directly.
“Upon the death either of said grandson or of either of said daughters of the party of the first part without a child or children, should any such death or deaths occur during the existence of said last named corporation, the share of the one so dying, in such net income and dividends, so above directed to be paid in equal portions, to said daughters and grandson, shall be paid in equal portions to the survivors or survivor of such daughters and grandson, or the whole thereof to the last survivor of such daughters and grandson, as the case may be; but should the said grandson or any of the said daughters of the party of the first part, die leaving a child or children hereafter born, surviving him or her, then all his or her rights so dying, to such net income and dividends, and to such survivorship, shall pass to and vest in his or her child or children, and be paid to such child or children of said grandson or of such daughter so dying, in equal parts, or to the guardians of such as are minors.
“When said Coppell-Cravens-Babcock Real Estate and Investment Company ceases to exist as a corporation, either by reason of the expiration of the time for which it is now organized, or previously, by reason of other causes, and upon the winding up of the affairs of said Company, then said trustee, as holder in trust as aforesaid, of said 989 shares of stock therein, shall collect and receive all the proportionate share of the assets of said last named company, to which said trustee may be by law entitled as such holder of said shares of stock, and shall turn over, transfer, assign, convey and deliver the whole or such assets of whatsoever nature or kind they may be, whether real or personal, to the said George Myers Church, or to his heirs should he be then deceased, then to be and become vested in him, the said George Myers Church, or in his heirs, absolutely, free from all trusts or conditions.”

Mr. Myers died testate in 1910. From the time defendant accepted the trust, it paid the net income from and the dividends on the stock of the investment company in equal shares to the four named beneficiaries until Mrs. Coppell died in July 1933, then in equal shares to the remaining three beneficiaries until Mrs. Babcock (who by then was Mrs. William Downey) died in March 1942, and thereafter in equal shares to the two remaining beneficiaries until Mrs. Cravens died in July 1943, and thereafter the entire amount of the income to the remaining beneficiary, settlor’s grandson, George Myers Church, until the dissolution of the corporation on November 3, 1943. On November 2,1943, Mr. Church executed a written direction to the trustee to vote the 989 shares of stock at a special meeting of the corporation to be held on that day in favor of and to do the things necessary to effect dissolution. In consequence thereof, an affidavit of dissolution was filed on November 3, 1943, and the corporation was dissolved. Whereupon, the trustee, in compliance with the provisions of the trust indenture, distributed and paid over the entire corpus of the trust estate (together with accrued and undistributed income) in an amount in excess of $3,300,000 to George M. Church.

After the death of Mrs. Coppell in July 1933, with no child surviving her other than George M. Church, her son by a previous marriage, certain questions arose as to the parties entitled to and the proportions in which they were entitled to the income from the trust estate and to determine that controversy, the trustee in the fall of 1933 instituted a suit in the Circuit Court of the City of St. Louis wherein Mrs. Cravens, Mrs. Babcock Downey, and George M. Church, the surviving beneficiaries named in the trust indenture, were defendants, as individuals and as representing all who might derive or claim to derive any title to the trust estate as heirs, devisees, alienees, donees, or grantees of the defendants or any of them. We shall refer to the 1933 suit in more detail hereinafter.

Sometime prior to 1929, Doris Babcock McGowan, the child who was adopted by Mr. and Mrs. Babcock in 1901, had married and, in 1933, lived with her husband and children in Burlington, Vermont. Mrs.. McGowan was not a party to (except as her future rights and interests, if any, had to come to her from her mother who was a party) and did not participate in the 1933 suit. Mrs. Babcock Downey died in March 1942 and her only surviving child was her adopted daughter, Doris Babcock McGowan. The appellants are the four (all adults) children of Doris McGowan.

Mrs. Downey, formerly Mrs. Babcock, died testate March 5, 1942, while a resident of Bergen County, New Jersey, and in her will named her husband, William H. Downey, as her sole executor and as the residuary legatee of her estate. He filed the will on March 14 and qualified as executor, and letters testamentary were issued to him on March 17. Mrs. Downey’s will bequeathed to her adopted daughter, Mrs. Doris McGowan (mother of the appellants), some jewelry and the sum of $50,000, and noted that other suitable provision had been made for her at the time of her marriage. On March 18, 1942, the day following the issuance of letters testamentary to Mr. Downey, Doris McGowan, through New York counsel, wrote to respondent trustee, indicating that she was under the impression that she had some interest in a “Coppell-Cravens-Babcock trust fund” and asked for a copy of any trust instrument and the trustee’s opinion as to her interest therein. The trustee answered on March 20 indicating that its policy was not to give information concerning trust estates except to a beneficiary or a proper representative and that the records did not disclose Doris McGowan as a beneficiary or interested party in any trust, but also indicated that in one of their trusts were shares of stock in a corporation of a name similar to that mentioned by Doris McGowan. On April 23, 1942, the trustee again wrote Doris McGowan’s New York counsel indicating that it had learned that Mrs. McGowan was the adopted daughter of Mr. and Mrs. Graham Babcock and that Mrs. Babcock was a beneficiary of a trust created by her father in 1904, and that with the consent of the. beneficiaries of the trust, the trustee enclosed a copy of the trust indenture; and the trustee further stated that it had been advised that Doris McGowan was adopted in San Diego, California, on October 30, 1901, at the age of four, and that the trustee had been advised by its counsel that Doris McGowan had no interest whatsoever in the trust created by George S. Myers which was then being administered by it as trustee; and the trustee asked Doris McGowan’s counsel to check the facts and advise if they were not correctly stated. No reply to that letter was ever received by the trustee. Thereafter Doris McGowan, through her New York counsel, sought an opinion of Missouri counsel with respect to the validity of the trust indenture and, under date of July 13, 1942, obtained an opinion of St. Louis counsel to the effect that the trust instrument was void because it violated the .rule against perpetuities and because the instrument did not carry out the intent and purpose of the settlor. The fact of the request for or the existence of such an opinion was unknown to defendant trustee until 1957.

Following receipt of the July 13 opinion and on August 17, 1942, Doris McGowan appealed from the probate of her mother’s will and, about four months later on December 9, 1942, executed an instrument agreeing to discontinue said appeal in consideration of the payment to her of $11,000 and some jewelry in addition to the jewelry specifically bequeathed to her and in addition to the $50,000 bequest to her in her mother’s will. Thereafter, on March 11, 1943, Doris McGowan executed a release and refunding bond releasing and discharging William Downey from all claims and demands on account of the estate of his wife, Bob Myers Babcock Downey, and of Doris McGowan’s interest therein.

On the preceding February 4, 1943, Doris McGowan addressed a letter to George M. Church (the settlor’s grandson and sole surviving beneficiary named in the trust indenture) in which, among other things, she stated that she could not conscientiously proceed “with what I propose to do, without first telling you, my ideas and the justice of my cause” and then described what she proposed to do in these words:

“Therefore, if I am not considered a legal heir in so far as the Trust Fund is concerned, I contemplate bringing action to construe the Trust deeds — so as to establish my right to the income from the Trust Fund, during the life of the Trust which was previously paid to my mother.
“I have been advised by my council that I am entitled to this income that mother received, but the Trustees do not agree. Therefore, by taking this view, there is nothing left for me to do, but bring action to get a construction of the Trust deed. This, I hated to do without letting you know, personally — in advance.
“I wish you would write and let me know your opinion in the matter.”

Mr. Church answered that letter under date of February 18, 1943, by advising Doris McGowan, inter alia, that in his opinion she was not entitled to any part of the income of the trust because she was born prior to January 12, 1904.

On October 5, 1943, Mr. Downey, the husband and residuary legatee of Bob Myers Babcock Downey (the mother of Doris McGowan), executed an assignment in writing whereby he sold, transferred, and assigned to George M. Church all of his “rights, title and interest, if any, including those, if any, acquired under the will of Bob Myers Downey, deceased, in and to all of the assets and property of the Cop-pell-Cravens-Babcock Real Estate and Investment Company” and “also all such rights, title and interest, if any, in and to the stock of said Company held by ST. LOUIS UNION TRUST COMPANY” under the trust indenture of January 12, 1904.

It was specifically stipulated that during the entire period from the creation of the trust in 1904 until its termination and the distribution of the corpus and undistributed income to George M. Church on November -3, 1943, George S. Myers, the settlor, until Tiis death in 1910, and all of the heirs of ■George S. Myers, including his daughter, Bob Myers Babcock Downey, through whom appellants claim, until her death on March 5, 1942, and including Doris Bab-■cock McGowan, appellants’ mother, and through whom appellants claim (after April 23, 1942, if not before) and until her ■death in 1945, had knowledge of the execution and delivery of the trust indenture and ■of the terms thereof and of the administration of the same by respondent and that ■during that time neither the settlor nor ■any of his heirs, including his daughter, Mrs. Babcock Downey, and Doris Babcock McGowan and the appellants, advised respondent that they questioned the validity of the trust created under the trust indenture, nor in any way challenged that trust prior to 1957; nor did any of such persons institute any action contesting the validity of the trust prior to the institution of the present suit in October 1958; but, on the contrary, Mrs. Babcock Downey accepted the benefits of the trust and the others above named remained silent and permitted defendant to administer the trust and distribute income thereunder and terminate it and distribute the corpus to George M. Church without protest of any kind.

Appellants in the first count of their petition sought an accounting and a judgment for one half the amount the trustee paid to George M. Church upon the dissolution of the corporation in November 1943. Their theory as we understand it is: that the trust indenture of 1904 established three separate trusts or perhaps three separable parts of one trust, to wit, a trust in the income, a trust in the corpus (i. e., in the shares of stock so long as they were held by the trustee) and a provision for a “gift over” to George M. Church or his heirs, either upon expiration of the time for which the corporation was then organized or when dissolution was voted by a majority of the surviving beneficiaries (which, as a practical matter, meant when and if George M. Church, the grandson, "was the sole 'surviving beneficiary) ; that the trust in the income was valid, the trust in the corpus (i. e., in the shares of stock so long as held by the trustee) was valid, but the portion of the trust indenture which provided for the “gift over” was void because in violation of the rule against per-petuities; that, consequently, when, on November 3, 1943, the trustee dissolved the corporation and gathered in or obtained the assets which the shares of stock represented, at that moment the defendant became the trustee of a resulting trust for the benefit of the surviving heirs of the set-tlor, viz., George M. Church and Doris B. McGowan, mother of appellants; and, therefore, the trustee, instead of paying all the assets priorly represented by the shares of stock to George M. Church, should have paid only one half the assets to Mr. Church and the other half to Doris McGowan.

Respondent trustee has asserted in its brief a number of defenses, any one of which it claims is decisive of appellants’ claim as to count 1, including the contention that the “gift over” did not violate the rule against perpetuities and including the defenses of limitations, laches, and estoppel. The view we take of this part of the case makes it unnecessary and certainly unrewarding to examine all the conflicting contentions of the parties because, in our view, irrespective of all else, if the provisions of the trust instrument providing for the so-called “gift over” were void because in violation of the rule against per-petuities, a resulting trust in favor of the settlor and his heirs arose in 1904; and, if so, then under the undisputed facts as we have heretofore detailed them, appellants’ grandmother, Mrs. Bob Myers Bab-cock Downey (settlor’s daughter), devised and bequeathed any interest she had in said resulting trust as an heir of the settlor, to her husband, William Downey, and, further, appellant^’ mother, Doris McGowan, thereafter released William Downey of any claim or interest she had through her mother or otherwise in any such resulting trust as an heir of the settlor, and thereafter Mr. Downey assigned and conveyed all his interest in the assets of any such resulting trust to George M. Church. It is our further view that such a result must follow whether the “gift over” provisions of the trust (even if in violation of the rule against perpetuities, an assumption we make for the purposes of this case) voided the entire trust ab initio, as respondent contends (citing Lockridge v. Mace, 109 Mo. 162, 18 S.W. 1145, and subsequent cases), or whether, as appellants contend, this court “has never closed the door completely on the doctrine that the conveyor’s preference, had he known of the voidity, should he given effect, and would in the proper kind of a case apply that doctrine,” Wash. U.L.Q.1952 (Kroeger, The Effect of Violation of the Rule Against Perpetuities in Missouri) 297, 316, and that the present is “the proper kind of case” in which to apply the doctrine of partial validity. For as we see it, even if we applied the rule which, in effect, provides that when an interest is void in violation of the rule against perpetuities, the part of the document providing that interest is stricken and the other interests created by the instrument remain in effect just as though the language creating the void interest had never been written (unless, of course, the other interests fail under the principle of infectious invalidity), nevertheless, any resulting trust which arose by reason of the void provisions as to the gift over arose in 1904 and not in November 1943. That conclusion must be correct because here the settlor transferred property inter vivos upon a trust which, according to appellants, failed in part at the outset (as to the gift over because in violation of the rule against perpetuities) and, consequently, the trustee then (in 1904) held the corpus upon a resulting trust for the settlor and his heirs. See Scott on Trusts, 2d Ed., Vol. 4, § 411, pp. 2935, 2936, § 411.2, pp. 2938-2940; 89 C.J.S. Trusts § 103, p. 953; American Law of Property, Vol. 6, § 24.47, p. 123, Rest., Trusts, 2d, § 411, comment b, p. 333, comment g, p. 336, comments h and i, p. 337.

If we properly understand appellants, their contention that a violation of the rule against perpetuities occurred in November 1943 and not 1904 is based upon the theory that until the dissolution of the corporation, settlor’s heirs held a “mere possibility of reverter” which became upon dissolution an estate which “vested in the heirs of the settlor then living.” As we see it, that contention in turn must be based upon either or both these fallacious premises, first, that the corporation (through subsequent action by its shareholders)1 might have had perpetual existence and, second, that the trust provision requiring the trustee to dissolve the corporation and collect the assets represented by the shares of stock and pay over those assets to1 Church in some way differed in legal effect from a direction to the trustee to transfer to Church the actual shares of stock upon a given event or at a specific time. As indicated, our view is that neither premise is sound for these reasons.

It will be recalled that the investment company was incorporated in 1901 for a period of fifty years, so that, at the time of the creation of the trust, the corporation’s life was forty-seven years. The trust indenture specifically provided that the last date upon which the remainder (i. e., the assets represented by the shares of stock) was to be paid to George M. Church or his heirs was on the date the corporation ceased to exist “by reason of the expiration of the time for which it is now organized.” The fact that during the corporation’s existence it became possible legally for the shareholders to give it perpetual existence is irrelevant to any question here. That is because, as noted, the trust indenture in effect provided against any increase in the corporation’s period of existence, irrespective of the legal possibilities in that respect. Further, we reject as unsound appellants’ apparent contention that there was a valid trust in the corpus so long as the trustee held title to the shares of stock, but that the moment the trustee dissolved the corporation and gathered in the assets, the “gift over” provision of the trust thereupon became void. That is because the trust instrument made it clear that the corpus of the trust (whether the shares or the assets represented by those shares) was to be paid to George M. Church or his heirs at a definite time, either at the expiration of the corporation’s stated life or when sooner voted, so that, as we see it, the contention that the trust in the “corpus” was valid so long as the trustee held title to the shares but became invalid the minute the corporation was dissolved is without substance.

It follows, we repeat, that if the ■so-called “gift over” provision of the trust indenture was invalid because in violation of the rule against perpetuities, it was invalid from the outset, i. e., January 12, 1904, and on that date either the entire trust was void as respondent contends (if any provision of the trust violated the rule against perpetuities, which respondent denies), or, in any event, that part of the trust providing for the “gift over” was void as of January 12, 1904, and thus, in either event, from that date forward the trustee held the shares of stock and assets which those shares represented in trust for the settlor and his heirs.

It follows that the trial court correctly dismissed count 1.

Appellants in their count 3 (count 2 was dismissed by appellants prior to trial) sought a judgment for one third the trust income from March S, 1942, the date of the death of Mrs. Babcock Downey, to July 1, 1943, and for one half of such income from July 2, 1943, the date of Mrs. Cravens’ death, until September 29, 1945, the date of the death of their mother, Doris McGowan.

We have heretofore referred to the suit which was instituted by the trustee in July 1933 for directions pertaining to certain questions which had arisen with respect to the distribution of trust income. Because of the fact that appellants base their claim that their mother, Mrs. McGowan, was entitled to her mother’s (Mrs. Down-ey’s) share of the trust income from Mrs. Downey’s death in 1942 until Mrs. McGowan’s death in 1945, upon their construction of the court’s judgment in that case, and because we hold for reasons to be stated that appellants’ construction of the court’s 1933 judgment is, under all the circumstances, an erroneous one, it is desirable that we review in some detail the pleadings, findings, and judgment in the 1933 suit.

It will be recalled that the named defendants in the 1933 suit were the three surviving beneficiaries named in the trust indenture, Mrs. Babcock Downey (through whom appellants claim), Mrs. Cravens and George M. Church, each as an individual and as representing all who might claim as heirs, devisees, alienees, donees or grantees through them. In its petition, the trustee set forth the substance of the terms of the trust which we have heretofore quoted, among which averments was the trust provision that should any one of the settlor’s three daughters or his grandson (the beneficiaries named in the trust indenture) die leaving a child or children horn after the creation of the trust, then such child’s or grandchild’s rights to the net income and dividends should vest in his or her child or children to be paid to them or their guardians in equal parts. The trustee alleged further that at the time of the execution of the trust Mrs. Coppell, Mrs. Cravens, and Mrs. Downey were the only living children of Mr. Myers, the settlor, and none of these then had any living children except Mrs. Coppell, who was the mother of Mr. Church; that since the creation of the trust no other grandchildren of settlor had been born and, consequently, that from the inception of the trust in 1904 to July 3, 1933, the three daughters and the grandson were each entitled to one fourth of the net income, and that on July 5 Mrs. Coppell died leaving no children other than George M. Church. The trustee then repeated the provision of the trust to the effect that on the death of either the grandson or the said daughters without child, the share of the one so dying was to be paid in equal portions to the survivors of such daughters and grandson or the whole thereof to the last survivor of said daughters or said grandson, unless either of said daughters or grandson left a child, or children born after the execution of the conveyance in trust in which event his or her share of the income should vest in his or her children.

The trustee further alleged that by reason of the foregoing, questions had arisen since Mrs. Coppell’s death as to the parties entitled to and the proportions in which they were entitled to the income from the trust estate; that it was contended “on the one hand, that since the death of said Georgie Myers Coppell, Mildred Myers Cravens and Bob Myers Downey and George Myers Church have become entitled and will continue to be entitled to said net income from said trust estate, in equal shares. On the other hand, it has been contended that since the death of Georgie Myers Coppell on July 5, 1933 George Myers Church has become entitled to and is now entitled to and will continue to be entitled to one-half of said net income and Mildred Myers Cravens and Bob Myers Downey each to only one-fourth thereof. Again, it has been claimed that since July 5, 1933, by reason of the failure of said conveyance in trust to specifically dispose of the income formerly being paid to Georgie Myers Coppell, one-fourth of said net income should be accumulated in the hands of the trustee to pass with the corpus of the trust estate at the termination of the trust.”

The trustee prayed that defendants be required to answer, stating their several claims “which they make or may make in their own right and also what are the claims which they severally or jointly make or may make as representatives of any person or persons who are not made parties hereto and who are parties hereto by representation as to its duties in the premises.”

Each of the three named defendants,, i. e., Mildred Myers Cravens, Bob Myers Downey, and George Myers Church, filed identical entries of appearance and separate answers, in which each stated: "And this defendant represents to the Court that under a proper construction of said trust agreement, Exhibit A to said petition, this defendant, on the death of Georgie Myers Coppell on July 5, 1933, became entitled to and has since remained entitled to receive one-third of the income from the trust estate created by said trust agreement, Exhibit A to said petition.

“And this defendant further prays the Court to instruct the plaintiff, St. Louis Union Trust Company, as trustee under said trust agreement, that this defendant is now and has since July 5, 1933 been so entitled to one-third of the income from said trust estate, and that the income from said trust estate under the provisions of said trust agreement is to be paid to the defendants Mildred Myers Cravens, Bob Myers Downey and George Myers Church, in equal shares, so long as they continue to live and during the life of said trust, and, in the event of the death of any one of said defendants without child or children, the income shall thereafter be paid in equal parts to the survivors; and that in the event of the death of any of said defendants leaving a child or children, then the income thereafter during the life of said trust shall be paid in equal parts to the survivors of the defendants and to such child or children of said deceased defendants in equal parts.”

The same lawyer represented each of said defendants and filed a memorandum brief on their behalf in which he pointed to the particular part of the trust agreement which provided, among other things, that “ * * * but should the said grandson or any of the said daughters of the party of the first part, die leaving a child or children hereafter horn, surviving him or her, then all his or her rights so dying, to such net income and dividends, and to such survivorship, shall pass to and vest in his or her child or children,” etc. (Our italics.) He further stated that since the death of Mrs. Coppell, one of the settlor’s children and a beneficiary of the trust, who left surviving her only George M. Church, the “question involved herein is what disposition should be made of the one-fourth share of the income of this trust estate which has been heretofore going to Georgie S. Myers Coppell.” And counsel said in that regard, “It might be possible to contend that this share should go to George Myers Church. However, a close reading of the instrument shows that it should go to only a child or children hereafter born. George Myers Church was born at the time the Trust Indenture was created and this language was clearly used to exclude him, although he was a grandson, being the son of Georgie S. Myers Coppell.” (Last italics ours.) And further, said counsel, the settlor had “provided for any other grandchildren who might he hereafter born specifically. In case no other grandchildren were hereafter born he then specifically says that the income should be paid to the survivors or survivor of such daughters and grandson, or the whole thereof to the last survivor of such daughters and grandson, as the case may he. His intention, as clearly shown by the instrument, was for the four of them to ■share equally in the income of this Estate. If one died without issue hereafter born, then his or her share to be divided equally among the survivors.” (Last italics ours.)

The court entered its findings and judgment on December 13, 1933. It specifically found that the trust indenture provided that at the death, during the existence of the trust, of the grandson or either of the daughters without “child or children born after the creation of said trust, the share of the one so dying should be paid in equal portions to the survivor or survivors,” etc. {Our italics), and that should the grandson or either of the daughters die leaving “a child or children born after the creation o.f said trust, then all of such grand-son’s or daughter’s rights to such net income and dividends and to such survivorship should vest in his or her child or children,” etc. (Our italics.)

The court further found that no children were born to George S. Myers after the creation of the trust and that no grandchildren of George S. Myers had been born after the creation of the trust, and the court made reference to that portion of the trust which provided that in the case of the death of a beneficiary not survived by a child or children born after the execution of the trust, the income was to go in equal portions to the survivors of the daughters or said grandson. The court further found that when Mrs. Coppell died on July 5, 1933, “she left surviving her no child or children born after the execution of said conveyance in trust of January 12, 1904.” (Our italics.) It then referred to the construction which the trustee had put on the instrument to the effect that since the death of Mrs. Coppell, the two surviving daughters and the grandson were each to receive one third the income and recited the suggestions which had been made to the contrary.

The judgment immediately following the above-noted findings provided that since the death of Mrs. Coppell, the two surviving daughters and the surviving grandson were entitled to the net income and dividends in equal shares so long as they lived and the trust continued, and that upon the death of either of the three without a child or children surviving, his or her share should be paid in equal portions to the survivor or survivors and the whole of the income to the last survivor of the three “and that upon the death of either of said defendants leaving a child or children, then his or her share of said net income and dividends from said trust estate shall, during the life of said trust, vest in his or her said child or children.” (Our italics.)

It is apparent from the foregoing that the language of the trust indenture specifically provided that the only surviving child or children of the named benefici-. aries who were to share in the net income of the trust estate were children born after the creation of the trust. It is also abundantly clear that one of the two questions which was before the court for decision involved that very language. The stated question was whether the grandson, George M. Church, born prior to the date of the trust indenture and who survived his mother, Mrs. Coppell, was excluded from receiving the share of income which she had priorly received by the language of the trust indenture which provided that only children born after the creation of the trust should receive the share their parent had formerly received. It is true that neither the separate answers of defendants nor the judgment which followed the findings specifically referred to the surviving “child or children” who was or were to receive their parents’ income as a “child or children” born after the creation of the trust. It seems to us, however, that when the judgment is construed in the “light of the situation of the court, what was before it, and the accompanying circumstances,” and "in the light of the character and object of the proceeding culminating in the judgment,” Jeans v. Jeans, Mo.App., 314 S.W.2d 922, 925, the court must have used the words “child or children” in the judgment to mean only “child or children” born after the creation of the trust, as was specifically provided in the trust instrument. Under the circumstances heretofore delineated, we are convinced that this judgment should be construed with reference to and in the light of the court’s findings, 49 C.J.S., Judgments, § 439, p. 871, and should be read in connection with the entire record, 30 Am.Jur., Judgments, § 69, p. 213. The language of the judgment, considered in the light of the question before the court and in the light of the positions taken by defendants through their counsel as to the fact that the indenture’s specific language excluded the settlor’s grandchildren who were born prior to the execution of the trust instrument, and in the light of the court’s findings, means, beyond peradventure of doubt, that the only surviving child or children who were to receive their respective parent’s share of income were those who had been born after the creation of the trust.

Appellants’ argument that the language of the judgment omitting any phrase characterizing the surviving “child or children” who were to receive their deceased parents’ share of income as “hereafter born,” was intentional and by design for the purpose of preventing the “trust in income” from violating the rule against perpetuities, seems to us to be based upon unjustified conjecture and surmise. We point out again that it is agreed that the settlor during his lifetime and all the beneficiaries, three daughters and a grandson (including the settlor’s daughter through whom appellants claim), from January 1904 until (and after) the institution of the suit in July 1933, a period of more than 29 years, all had treated the “trust as a valid, binding and operative trust in the whole corpus of the trust estate, consisting of Nine Hundred Eighty-nine (989) shares of' the capital stock of The Coppell-Cravens-Babcock Real Estate and Investment Company, and all dividends received therefrom, acted in reliance thereon, and accepted the benefits and the responsibilities intended to be conferred and imposed by the said trust, and in no manner or instance did either the defendant trustee, or the settlor, George S. Myers, during his lifetime, or either of the said four (4) beneficiaries of the said trust * * * challenge or contest either the validity, binding nature, or the terms of the said trust * *

In the light of the foregoing, no plausible reason occurs to us to support a surmise or conclusion that the trustee and the beneficiaries by the 1933 construction suit were attempting in some obscure and indirect way to have the “trust in income” construed so that it would not violate the rule against perpetuities (assuming for the purposes of this case only that it did so) by causing the court to omit from the language of its judgment any “hereafter born” phrase as to surviving children.

Our view is that the 1933 judgment reasonably may not be construed to include a child in being in 1904 and, consequently, that the trial court correctly dismissed count 3 of appellants’ petition.

Inasmuch as we have held that the trial court correctly dismissed both counts of appellants’ petition, it follows that the judgment is affirmed.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    In Re SEARCH WARRANT OF PROPERTY AT APARTMENT NO. 7, 15½ SOUTH WEBB STREET, in WEBB CITY, COUNTY OF JASPER, State of Missouri; Clarence Mays, Appellant.
    No. 49486.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1963.

      Myers & Birk, Webb City, for appellant.
    Stewart E. Tatum, Pros. Atty., Max H. Glover, Asst. Pros. Atty., Webb City, for respondent.
   BOHLING, Commissioner.

This is an appeal by Clarence E. Mays from a judgment overruling his motion to quash a search warrant, to suppress as evidence the property seized thereunder, and to have returned to him as owner the property ordered held and to be destroyed later under said judgment. The search warrant was issued under statutory provisions relating to the seizure of obscene books, pictures and other articles. §§ 542.380-542.430 (more particularly §§ 542.380 and 542.390) and Supreme Court Rule 33, V.A.M.R. (Statutory references are to RSMo 1959 and V.A.M.S.) Claimant’s said motion presented Federal and State constitutional is-

sues, which he renewed in his motion for new trial and in his brief filed here. For instance, he contends that the application for and the search warrant based thereon violated the search and seizure provisions of the Missouri Constitution (Art. I, § 15 and see Sup.Ct.R. 33.01(b)) in that the books, pictures and other articles to be searched for and seized were not described with sufficient detail and particularity to enable the person executing said warrant to ascertain and identify the same, and (2) said warrant was issued without a sufficient showing of probable cause. Search Warrant of Property at 5 West 12th St. v. Marcus, Mo., 334 S.W.2d 119[1, 7]. See State v. Burton, Mo., 349 S.W.2d 228[1],

Having jurisdiction, this court will determine the whole case without regard to the issue upon which the case may turn. In re Toler’s Estate, Mo., 325 S.W.2d 755 [1] and cases cited; Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841 [1], 98 A.L.R. 995.

The briefs filed here style this case as follows: “In re Search Warrant of Property at Apartment No. 7, 15½ South Webb Street, in the City of Webb City, County of Jasper, State of Missouri, Respondents, vs. Clarence Mays, Appellant.” We think it better to show the title as in the caption of this opinion.

The State, through an Assistant Prosecuting Attorney of Jasper County, filed a motion (dated January 9 and filed January 11, 1962) to dismiss this appeal on the ground appellant had not served or supplied the State with a copy of his brief. Supreme Court Rule 83.09. Rule 83.06(a) requires an appellant to deliver to the respondent two copies of his brief forty-five days before the day the cause is set for hearing and a respondent to deliver two copies of his brief to the appellant fifteen days before said hearing. The State received a typewritten copy of appellant’s brief on January 11th. This case was set for hearing on January 25th. Appellant failed to comply with Rule 83.06(a). Neither party has seen fit to furnish this court with a brief on the issue involved; but each has briefed the case on the merits. Appeals are not lightly dismissed (Ellis v. Farmer, Mo., 287 S.W.2d 840[4]), and our Rules also contemplate that appeals are not to be dismissed where the interests of justice require otherwise. See Rules 83.09, 83.24 and 79.04. Dye v. Geier, Mo., 345 S.W.2d 83, 89; Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W. 2d 794[1, 2] ; Barewin v. Gillette, Mo.App., 343 S.W.2d 78[2]; Conser v. Atchison, T. & S. F. Ry. Co., Mo., 266 S.W.2d 587[1] and cases cited. The motion to dismiss is overruled on the ground that to hold otherwise on this review would result in injustice.

The Missouri Constitution (Art. I, § 15) seeks to protect persons, their homes and effects, from “unreasonable searches and seizures”; and provides that no search warrant “shall issue without describing the place to be searched, or the * * * thing to be seized, as nearly as may be; nor without probable cause, supported by written oath or affirmation.” Supreme Court Rule 33.01(b) reads: “The complainant and the warrant issued thereon must contain a description of the personal property to be searched for and seized and a description of the place to be searched, in sufficient detail and particularity to enable the officer serving the warrant to readily ascertain and identify the same.”

Section 542.380, upon complaint in writing under oath, authorizes the issuance of a warrant to search for and seize (quoting) : “(2) Any of the following articles, kept for the purpose of being sold, published, exhibited, given away or otherwise distributed or circulated, viz.: obscene, lewd, licentious, indecent or lascivious books, pamphlets, ballads, papers, drawings, lithographs, engravings, pictures, models, casts, prints or other articles or publications of an indecent, immoral or scandalous character, or any letters, handbills, cards, circulars, books, pamphlets or advertisements or notices of any kind giving information, directly or indirectly, when, where, how or of whom any of such things can be obtained.”

The search warrant was issued upon the application of an Assistant Prosecuting Attorney of Jasper County, Missouri. The search warrant directed the Sheriff of Jasper County to make diligent search of the premises described therein, and to seize and bring before the Judge of Division No. II of the Circuit Court of said county any of the following property that might be found, that is (quoting): “[T]he following described property of obscene, lewd, licentious, indecent, and lascivious books, pamphlets, ballads, papers, drawing, lithographs, engravings, pictures, models, casts, prints, or other articles or publications of an indecent immoral or scandalous character, or any letters, handbills, cards, circulars, books or notices of any kind describing or purporting to describe any of such articles and giving information where or how any of such things can be obtained.”

The above-quoted recitals in the search warrant are identical in all material particulars with the allegations in the application for said warrant.

A hearing on the State’s petition for determining whether the articles seized under said search warrant were subject to the provisions of § 542.380(2), that is, obscene, and for their ultimate destruction (see §§ 542.400, 542.420; Sup.Ct.R. 33.05) and claimant’s aforesaid motion to quash said warrant, et cetera (§§ 542.410, 542.420; Sup.Ct.R. 33.03, 33.05) was had on February 12, 1962. It was there developed that no testimony was taken at the presentation of the State’s application for and the issuance of said search warrant. At said hearing of February 12th, a Deputy Juvenile Officer of said county testified Mr. Mays, on or about January 17th, stated to him that “he owned some party film and pictures,” but made no statement as to any use of said articles; and, over objection interposed to hearsay testimony, that witness had heard Mr. Mays was exhibiting films and pictures of some sort. Thereupon, the Assistant Prosecuting' Attorney stated to the court he filed his application because he had reasonable grounds to believe such information. He stated under oath in the application that Clarence Mays “does keep for the purposes of being sold, published, exhibited, given away, or otherwise distributed or circulated” the obscene articles mentioned in said application and search warrant.

Said hearing established that the oath in said application for the search warrant rested upon hearsay based upon hearsay and was not supported by that standard of evidence for the determination of “probable cause” by a judge for the issuance of a search warrant under Supreme Court Rule 33.01(a); that is, evidential facts verified 'by oath or affirmation positively stated and not upon information and belief. It also appears that there was no proper showing that said articles were kept “for the purposes of being sold, published, exhibited, given away, or otherwise distributed or circulated,” as alleged in said application. The search warrant was improperly issued upon the word of an officer. It was good or bad when issued and its character was not changed by what its execution disclosed. We understand it does not necessarily follow, however, that constitutional guarantees are contravened where an oath or affirmation to establish probable cause is based upon information received through an informant in instances where such information is reasonably corroborated by other matters within the affiant’s knowledge. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697; Draper v. United States, 358 U.S. 307, 325, n. 10, 79 S.Ct. 329, 3 L.Ed.2d 327. Such, however, is not this case.

Our files disclose that the warrant in Search Warrant of Property at 5 West 12th St. v. Marcus, Mo., 334 S.W.2d 119, directed the officers executing the same, as did the instant search warrant, to search for and seize the articles named in said § 542.380(2) without further directions for the exercise of discretion as to what constituted an obscene article. Of the broad discretion conferred upon the officers in the Marcus case, merely repeating the language of the statute and the complaint with respect to the property subject to the warrant, the United States Supreme Court upon review stated: “They [the officers] were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.” In the Marcus case only one-third of the publications seized were finally considered obscene, and the court considered that this “strengthens the conclusion that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards than were here operative.” Marcus v. Search Warrants of Property, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127. The judgment in the case before us held 19 of the 104 exhibits seized in the execution of the search warrant to be obscene and, by the judgment, they were ordered retained by the Sheriff to be later destroyed. In these circumstances and under the authority of the Marcus case the search warrant here involved failed to describe the personal property involved “in sufficient detail and particularity to enable the officer serving the warrant to readily ascertain and identify the same” as required by Supreme Court Rule 33.01(b).

We have considered constitutional questions should not be determined unless their determination is essential to a proper disposition of the appeal. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75, 79[5]; State ex rel. Volker v. Kirby, 345 Mo. 801, 136 S.W.2d 319, 322; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497[23] ; 16 C.J.S. Constitutional Law § 94; 11 Am.Jur. § 94. The case has already broken and we leave the other issues for decision, if ever, in some case pivoting on them.

The judgment is reversed and the cause is remanded with directions to enter a judgment sustaining claimant’s motion to quash the search warrant, suppress as evidence the property seized thereunder and to have returned to claimant the property withheld from him.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    NORTH KANSAS CITY SCHOOL DISTRICT OF CLAY COUNTY, Missouri, presently known as School District #74, in said County, and Robert C. Bates, William C. Davidson, Donald E. Ewing, Gene Harris, E. L. Lewis and Raymond R. Finch, constituting the Board of Education of said School District, Appellants, v. J. A. PETERSON-RENNER, INC., a Missouri Corporation, James C. Davidson, Trustee, and Clarence G. Renner and Anna E. Renner, husband and wife, Respondents.
    No. 49456.
    Supreme Court of Missouri Division No. 2.
    June 4, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied July 8, 1963.

      Conn Withers, Liberty, Edward T. Matheny, Jr., Donald L. Dorei, Caldwell, Blackwell, Sanders & Matheny, Kansas City, for appellants.
    James C. Davidson, North Kansas City, for respondents Clarence G. Renner and Anna E. Renner.
    James E. Campbell, Keith Martin, Campbell & Clark, Kansas City, for respondent, J. A. Peterson-Renner, Inc.
   STOCKARD, Commissioner.

In this condemnation suit the North Kansas City School District of Clay County (hereafter referred to as the “School District”) has appealed from a judgment for defendant-landowners in the amount of $133,615.51, and asserts, among other things, that defendants are entitled to no more than $67,973.20. Thus the amount in dispute exceeds $15,000 and this court has appellate jurisdiction.

The School District seeks by condemnation to obtain title to approximately 34 acres of land comprising the southeast corner of a 148-acre tract (hereafter referred to as the “Renner tract”) belonging to or in which the defendants have an interest. The commissioners appointed by the circuit court awarded defendants $94,966. All parties filed exceptions. In the trial on the issue of damages the jury verdict was for $131,200 and after the addition of interest pursuant to Civil Rule 86.10, V.A.M.R., and Section 523.045 (all statutory references are to RSMo 1959, V.A.M.S.), judgment was entered in the amount of $133,615.51. The School District has appealed. We are first faced with defendants’ “Motion to Dismiss Appeal for Lack of Jurisdiction” on the ground that the School District has not paid the amount of the commissioners’ award or the jury verdict, or any part of either, into court.

Defendants contend that this court should rule that the School District “constructively abandoned” the condemnation and for that reason there is no controversy before the court, or that it should rule that the School District “was bound to pay the jury award prior to appeal to give this court jurisdiction” and the failure to do so “precludes an abandonment and an appeal * * * and makes the judgment of the trial court final.”

The legislative grant of the power of eminent domain to the School District to condemn land for school purposes is not questioned. See Section 165.100. The procedure to be followed in the exercise of that power is now governed by Civil Rule 86, insofar as applicable. Union Electric Company v. Jones, Mo., 356 S.W.2d 857, 859. Civil Rule 86.06 provides for the appointment of commissioners to assess the damages which the owners may sustain by reason of such appropriation, and it further provides that “[u]pon making payment to the clerk of the amount assessed, * * * it shall be lawful for the condemner to take possession and hold the interest in the property so appropriated for the uses [condemned] ; and, upon failure to pay the assessment aforesaid within ten days after it becomes final, or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, * * * and to so much as is thus abandoned the assessment of damages shall be void.” Civil Rule 86.08 provides that if either party files exceptions to the report of the commissioners within the time therein provided the issue of the amount 'of damages shall be submitted to a jury, or if a jury be waived, to the court, to be tried as in ordinary cases of inquiry of damages. This necessarily means that when exceptions to the commissioners’ report are filed the award of damages by the commissioners, as long as the exceptions are not withdrawn or dismissed, cannot become final. There is no express provision in Civil Rule 86 pertaining to the right of the condemner to abandon the condemnation subsequent to a trial before the court or jury on the issue of damages. Civil Rule 41.06 provides that if no procedure is specially provided by rule, the court shall proceed in any lawful manner consistent with the applicable statute, or statutes if any, and precedent, and not inconsistent with the rules. In the absence of Civil Rule 86, the procedure to be followed in this condemnation proceeding would be governed by Sections 523.010 to 523.100. See Section 165.100. We find that Section 523.040 also expressly authorizes the condemner to abandon the condemnation within ten days after the award of the commissioners becomes final, but like Civil Rule 86, neither it nor the other applicable sections contain any express provision concerning the right of the condemner to abandon the condemnation subsequent to jury or court trial. However, the courts have construed the overall purpose of Chapter 523, and in State ex rel. Hilleman v. Fort, 180 Mo. 97, 79 S.W. 167, the court ruled as follows: “It is true the right to abandon is spoken of only in section 1266 [now Section 523.040], and that that section relates to the assessment by the commissioners. But these considerations are not conclusive of the question, for section 1268 [now Section 523.050] is in pari materia with section 1266, and must he read in connection with it, and the true meaning and purpose of the lawmakers must be gathered from the whole act, including all its parts, its context, spirit, and object, as well as the words, or the location in any one section or paragraph of the act of the particular clause or words under consideration. * * * Read in this way, we find a right to abandon is given within 10 days after the damages are assessed. We also find that the damages are to be assessed in the first place by a board of commissioners. Then * * * if either party requests it, by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; and this, of course, involves the usual power of the court to grant a new trial after the verdict and the other ordinary incidents of a trial in court, including a right of appeal, even though that right is not even referred to in the act.” In the Fort case no appeal was taken from the judgment, and the only issue was whether the condemner could abandon the condemnation within ten days after verdict. It was stated that “the true reason and meaning of the law” authorized the abandonment and the denial of such right “would practically nullify” the provision which gives a right to file exceptions to the report of the commissioners. In the situation presented by this case the denial of the right to abandon the condemnation after an appeal would practically nullify the right of appeal and would be contrary to the obvious intent and purpose of the statutory provisions. Prior to the adoption of the present Civil Rules, by reason of the applicable statutes and the judicial construction thereof, the condemner could pay into court the amount of the damages and thereby acquire title to the land or interest condemned, but having done so he could not subsequently abandon the condemnation. Nifong v. Texas Empire Pipe Line Co., 225 Mo.App. 1134, 40 S.W.2d 522. However, the condemner could refrain from paying into court the amount of the award until the amount was finally adjudicated and then determine whether to abandon the condemnation or take title to the interest condemned at that price. State ex rel. Hille-man v. Fort, supra; State ex rel. State Highway Commission v. Schutte Investment Company, Mo., 334 S.W.2d 241; Center School District No. 58 of Jackson County v. Kenton, Mo., 345 S.W.2d 120. This right to an election to abandon is particularly important to a public body such as a school district because of the possible limitation of funds available through bond issues for the purchase of land. Whether we conclude that the above result is proper from a reasonable construction of Civil Rule 86, and we think it is, or whether we conclude that pursuant to Civil Rule 41.06 we should look to the applicable statutes and precedent, the School District in this case was not required to elect within ten days after the jury verdict to abandon the condemnation or to take title to the land. Therefore, the School District did not “constructively abandon” the condemnation and it was not “bound to pay the jury award prior to appeal to give this court jurisdiction.” The motion to dismiss the appeal is overruled.

The principal issue on this appeal pertains to an instruction authorizing the jury to take into consideration in determining the value of the land taken the “right” of defendants to use a sewer disposal plant on adjoining property. Certain additional facts are essential to the issue.

It is conceded that the highest and best available use to which the Renner tract is adaptable is for a residential development, although at the time the condemnation suit was commenced the land had not been platted and development work had not been started. In August 1960 J. A. Peterson-Renner, Inc., acquired the Renner tract, along with several others, from Byers-Daniels Development Company. At that time Byers-Daniels had almost completed the construction of the Meadowbrook North sewer disposal plant located about 300 feet west of the Renner tract. Mr. J. A. Peterson testified that he negotiated on behalf of J. A. Peterson-Renner, Inc., for the purchase of the Renner tract and that when he purchased the land he also purchased “some interest” in the sewer plant. He then read to the jury a provision contained in the contract of purchase as follows: “It is further agreed that as a part of the consideration, you [J. A. Peterson-Renner, Inc.] may make to the Meadowbrook North sewer disposal plant 466 connections. You will pay for such connections the sum of $93,200. These payments will be made in accordance with the contract between Byers-Daniels Development Company and Municipal Services, Inc., which provides one-half of said sum shall be paid upon completion of the sewer disposal plant and the remaining one-half upon acceptance of the plant by all governmental authorities. It is agreed between the parties that permission to make connections to Meadowbrook North sewer disposal plant shall not be granted to any persons other than the parties hereto or their assigns as long as said plant is under the control of the parties hereto. We further agree that the plant will not be delivered to the City of Gladstone until a suitable ordinance is introduced and passed, guaranteeing to you a total of 466 connections, and guaranteeing to us a total of 634 connections.”

On June 21, 1961 the City of Gladstone enacted Ordinance No. 135 whereby it “agreed to accept ownership of said primary-secondary sewage treatment plant and the operation thereof,” and it authorized the mayor to enter into a contract on behalf of the city with J. A. Peterson-Renner, Inc., and Byers-Daniels Development Co. for the acceptance of ownership of the sewage treatment plant. That contract is lengthy and we shall mention only a few of its provisions. The city agreed that “of the 1170 domestic connections or equivalent herein referred to, Byers-Daniels Development Co. or its successors or assigns shall be entitled to 704 such domestic connections or equivalent and J. A. Peterson-Renner, Inc., or its successors or assigns shall be entitled to 466 such domestic connections or equivalent.” It was further provided that the city would “refuse permission to any other person, firm, corporation, association or copartnership of persons to connect to said plant until said 1170 domestic connections or equivalent are made without the written consent of Byers-Daniels Development Co. and J. A. Peterson-Renner, Ind. unless the capacity of said plant is increased to compensate for such additional connections prior to allowing said additional connections to be made.” A further provision in the contract was that Byers-Daniels Development Co., its successors or assigns, reserved the right to “allow the North Kansas City School District or any one else it authorizes to connect to said sewage treatment plant and the plant capacity used by said school or other party or parties authorized to connect to said plant by Byers-Daniels Development Co. shall be charged against the 704 connection rights reserved to Byers-Daniels Development Co.” Also, until 250 domestic connections or equivalent have been made, the city reserved the right to “assess the property owner the sum of $2.00 per month per domestic connection” to be used to maintain and operate the sewage treatment plant, and during said time if any deficit should occur Byers-Daniels Development Co. and J. A. Peterson-Renner, Inc., or their successors or assigns, should pay the amount of the deficit to the city “in direct proportion to the number of connections to which each is entitled less any connections made and assessed.”

A preliminary survey for the development of the Renner tract by the owner prior to J. A. Peterson-Renner, Inc., resulted in plans for 466 homes, and the cost of $93,200 for the sewer connections was based on a cost of $200 per home or residential lot. J. A. Peterson-Renner, Inc., made additional studies and determined that 477 lots could be developed, but apparently the available sewer connections remained at 466. A total of 125 lots or homesites would be lost to J. A. Peterson-Renner, Inc., by the removal of the 34 acres sought to be condemned by the School District leaving 352 homesites or lots. Canceled checks were introduced in evidence to show that J. A. Peterson-Renner, Inc., had paid the $93,200 for the sewer connections.

The trial court gave Instruction No. 3 as follows: “You are instructed that the defendant landowner had the right to use the sewer plant mentioned in evidence in the development of the 148.102 acres mentioned in evidence, and you are further instructed that you may consider said right in determining the fair market value of the land taken, because just compensation is based upon what the landowner loses by having his property taken, and not by what the plaintiff gains.” The School District assigns error in the giving of this instruction because (a) “There was no evidence that any of the defendants had the right to use the sewer plant, inasmuch as the right of defendant landowner depended upon a void and ineffective attempt by the City of Gladstone to delegate control to and vest rights in such defendant,” and (b) if such right existed, it was a right personal to defendant landowner and in no way a part of or appurtenant to the condemned land, and hence not to be considered in determining the fair market value of the land taken.

In determining whether a particular instruction is prejudicially erroneous it is well settled that all of the instructions must be read and considered together as a single charge. St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529, 533. In a condemnation case it is proper to advise the jury by written instructions what elements it may consider in estimating or arriving at the damages or value of the property taken or damaged. State ex rel. State Highway Commission of Missouri v. Haid, 332 Mo. 606, 59 S.W.2d 1057, 1060; Siemers v. St. Louis Electric Terminal Ry. Co., 348 Mo. 682, 155 S.W.2d 130, 137. We should look first to the substance of Instruction No. 4 given at the request of the defendants which was as follows: “In determining the fair market value the jury should take into consideration the location of the property, the uses for which it is suitable at such location, its available utilities, sewers, and municipal services, if any, the proximity to places of employment, shopping centers, roads, highways, and other means of transportation, if any, and all the uses to which it may best be applied or for which it is best adapted, having regard not alone for the existing uses of the property, but also such uses which may be reasonably expected in the near future.” (Italics added.) By this instruction the jury was correctly and properly told that the availability of sewers should be considered by it in determining the value of the land sought to be taken by condemnation. State ex rel. Board of Regents for Central Missouri State College v. Moriarty, Mo.App., 361 S.W.2d 133. Such availability would have a direct bearing on the value of the land for its admittedly highest and best available use, that is, for development as a residential area. In view of this instruction, to which no objection is made on this appeal, what was the purpose of Instruction No. 3 ? It obviously told the jury, and presumably that was its purpose, that as a matter of law defendants “had the right to use the sewer plant,” and that in addition to the availability of sewers as affecting the market value of the land taken, the jury should also take into consideration the additional factor of the loss of “said right” because just compensation is based upon what the landowner loses by having his property taken and not by what the School District gains. In view of the evidence that J. A. Peterson-Renner, Inc., had paid $93,200 for “said right,” any reasonable jury would understand from Instructions No. 3 and No. 4 that in determining the market value it should add to the value of the land taken the increase in value resulting from the availability of the sewer facilities, and then add an additional amount because J. A. Peterson-Renner, Inc., would lose a portion of the $93,200 investment in making the sewers available. We must note, however, that the School District’s challenge to Instruction No. 3 is not specifically directed to this objectionable feature of the instruction. Its specific objection is that the sewer facility had been transferred to the City of Gladstone, and that the contract which purported to give J. A. Peterson-Renner, Inc., a “right” to use the sewer facility to the exclusion of the public generally was contrary to public policy and void in this respect. The School District then contends that the court erred in instructing the jury that J. A. Peterson-Renner, Inc., was entitled to compensation for the loss of a “right” which did not exist.

The School District relies on the general rule stated in Yokley, Municipal Corporations, § 475, as follows: “While a city may grant permission for the use of its sewers, it must retain control of them, and may not contract away such right of control. ⅜ * * It has been held to be against public policy for a municipality to permit private persons to acquire or retain a proprietary interest in public sanitary sewer lines. It is felt that such ownership or interest would condition the rights of public authorities to exercise control thereof and to extend to others equally entitled to sewer service permission to connect to such sewers. If private citizens were thus allowed to assert ownership piecemeal of various parts of a city sewage system, an intolerable condition would soon exist.”

No Missouri case has been found expressly ruling this question, but the above general principle was announced in Warren v. Bradley, 39 Tenn.App. 451, 284 S.W.2d 698. There a municipality constructed a sanitary sewer in “Warren Addition” which was being developed by the plaintiff and who agreed to pay the entire cost of the sewer, provided that for a period of twenty years he, his heirs, devisees and assigns would have the exclusive right to connect onto the sewer free of charge, and also have the right to assign such privilege and make a charge therefor. The defendant, owner of a residence in “Warren Addition,” attempted to make a connection into the sewer and plaintiff sought an injunction. The court held the agreement between plaintiff and the municipality to be void and that plaintiff “had no right, title, interest or claim in this public property.” The case of Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89, is particularly in point. There the city built a sewage plant designed to receive industrial sewage, and by reason of the payment of certain expenses by the Morrell Company the city agreed that it could discharge its sewage into the city system and plant for a period of fifteen years. This contract or agreement was held void, and the court said’: “The supervision and regulation of the sewers is a police function of the city. Therefore, in granting permission for the use of the sewers in the first instance and for the continuing use thereof, the city must at all times retain control, and any attempt by way of contract to deprive the city of that control is void. The police power of the city cannot be bargained away by contract, but must at all times be available for use to meet such public needs as may arise. * * * No one has any vested rights in the use of the sewers, nor can the city grant such a vested right.” Other cases and authorities to the same effect are State ex rel. Gordon v. Taylor, 149 Ohio St. 427, 79 N.E.2d 127; City of Vernon v. City of Los Angeles, Cal.App., 275 P.2d 72; Lamar Bath House Co. v. City of Hot Springs, 229 Ark. 214, 315 S.W.2d 884, appeal dismissed, 359 U.S. 534, 79 S.Ct. 1137, 3 L.Ed.2d 1028; Weaver v. Canon Sewer Co., 18 Colo.App. 242, 70 P. 953; Shawnee v. Thompson, Okl., 275 P.2d 323 ; 64 C.J.S. Municipal Corporations, § 1805; McQuillin, Municipal Corporations, 2nd Ed., § 31.31. Although not involving a comparable factual situation, the following Missouri cases announce the general rule that a municipal corporation may not contract away its governmental functions and powers pertaining to municipal facilities. Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332; Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626.

Defendants cite State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, and City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, in support of the general proposition, with which we agree, that all important factors relating to the value of the land should be considered, including a special adaption for a particular use. Defendants also cite State ex rel. Board of Regents for Central Missouri State College v. Moriarty, Mo.App., 361 S.W.2d 133, and St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529, in support of their contention that one of the factors which may properly be considered in determining fair market value is the availability of sewers, and it is argued that in this case “sewage disposal was one of the necessary factors which the jury was entitled to consider.” We agree with these cases and with the general rule that availability of sewers is a factor to be considered by the jury in determining value, but these cases go no further than that. Instruction No. 4 expressly submitted that factor to the jury for its consideration, and the School District does not object to it. No case is cited by defendants which tends to refute the School District’s contention that Instruction No. 3 authorized the jury to award damages for the loss of a “right” which did not exist, and that it was error to do so.

On June 21, 1961 title to and the operation of the sewage disposal plant was turned over to the City of Gladstone, and we cannot escape the conclusion that from that time on it was municipally owned property and the city could not by contract surrender its police powers to control and regulate the public sewers of the city of ■which this plant was a part. Yokely, Municipal Corporations, § 475; McQuillin, Municipal Corporations, 3rd Ed. § 31.29; 64 C.J.S. Municipal Corporations § 1805; Warren v. Bradley, supra; Ericksen v. City of Sioux Falls, supra. It is true that J. A. Peterson-Renner, Inc., had the “right” to use the sewer plant the same as other citizens of the city, but by reason of the contract with the city it had no greater right than any other citizen. However, in view of the evidence and the manner of its presentation, Instruction No. 3 clearly and unquestionably told the jury that it should award J. A. Peterson-Renner, Inc., damages for taking a portion of an exclusive right, which did not exist, to use the municipally owned sewer plant for which a proportionate part of $93,200 was paid, in addition to awarding as damages the enhanced value to the land resulting from the availability of the sewage disposal facilities. For this reason the instruction was prejudicially erroneous.

The School District also contends that reversible error resulted from the giving of Instruction No. 1 in which it was stated that “under the Constitution of the United States and under the Constitution of the State of Missouri, private property cannot be taken from the owner for public use without just compensation being paid to the owner * * In City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 844, this court said that language in an instruction in a condemnation case such as quoted above “is abstract in nature, immaterial to the precise issue on trial, and unnecessary. It is better and safer practice to omit this material in drafting instructions in this type of case.” It was then added that the instruction does not constitute reversible error unless it appears that the complaining party has been prejudiced or the jury misled thereby. We need not determine whether the instruction was prejudicial in this case, but upon a new trial the parties would be well advised to consider the caveat in the Vasquez case.

The judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.