author: WOODSON, P. J.

text:
    JAMES C. MEEHAN, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY et al.
    Division One,
    December 6, 1913.
    1. NEGLIGENCE: Cause of Action: Street Parade: Protecting Rope. A great annual festival in a great city, such as the Veiled Prophet’s Parade in St. Louis, brings together on the sidewalks great crowds of people; and ropes and cables stretched along the line of sidewalks are not intended or required to be of a permanent character, but only temporary markers to warn the people not to enter upon the pavement, which is reserved for the parade; and the city, and an electric light company erecting such cables, have a right to assume that people viewing the parade will understand the temporary character of such markers; and the city and such company have no more reason to anticipate that the viewing crowd will violently surge against the rope than has a member thereof.

      2. --: -: -: -: Insecure Pole. The petition states that a wire cable' stretched along the edge of the sidewalk to mark the boundary between the viewing crowd and a great parade, was fastened to an upright pole, which, on some day within the last eight days preceding the parade, had been constructed at the edge of the granitoid sidewalk; that the pole had been set in cement and stayed by means of four iron pins or bolts screwed into the pole’s flange at its base; that the cement had not hardened, and the bolts were insecurely screwed and driven into said' sidewalk, and that in consequence the pole was insufficient to hold the wire rope, attached to it and stretched about four feet from, the ground, when the people pressed against it; that as the parade approached, the people violently threw their weight against the rope, and the pole fell, striking plaintiff on tbe head, fracturing his skull and causing him permanent injuries. Held, that it cannot be reasonably said that the city and the electric light company which erected the pole should have anticipated that the cement in which the pole was set had not hardened within the eight days preceding the accident, or that the weight of the people against the cable would have been sufficiently great to cause the pole to fall, and the petition states no negligence on the part of either city or company.
    ■Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    AFFIRMED.

      Joseph A. Wright for appellant.
    (1) “A city owns and controls its streets as a' trustee for the public. It, therefore, stands charged by the law with the primary and bounden duty of keeping them free from nuisances, defects, and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction or repair the defect. It cannot shirk that duty or shift it over to, or halve it with, others. So much is clear law in Missouri. ’ ’ Benton v. St. Louis, 217 Mo. 700; Mehan v. St. Louis, 217 Mo. 35; 2 Elliott on Roads and Streets (3 Ed.), pars. 830, 831; 1 Wood on Nuisances, secs. 248-250. (2) The defendants all co-operated and participated in creating the peril to which plaintiff was exposed and are, therefore, jointly and severally liable. Mehan v. St. Lonis, 217 Mo. 35; Hollis v. Merchants’ Assn., 205 Mo. 508. (3) The negligent acts averred were the proximate canse of plaintiff’s injury. Woodson v. Railroad, 224 Mo. 856, 30 L. R. A. S(N. S.) 931; Phillips v. Railroad, 211 Mo. 419; Dean v. Railroad, 199 Mo. 386. (4) Defendants are liable for a peril created and injury done to plaintiff even though the motive was the entertainment of visitors within the city. Hollis v. Merchants’ Assn., 205 Mo. 508; Dowell v. Guthrie, 99 Mo. 653; Wheeler v. Ft. Dodge, 131 Iowa, 566; Johnson v. New York, 186 N. Y. 139; Landau v. New York, 180 N. Y. 72; Richmond v. Smith, 101 Ya. 161; Elam v. Mt. Sterling, 20 L. R. A. (N. S.) 512; Little v.'Madison, 42 Wis. 643; Shinnick v. Marshalltown, 137 Iowa, 72.

      Schnurmacher & Rassieur for respondent, Union Electric Light & Power Company.
    (1) As to Union Electric Light & Power Company, the petition avers in substance merely that pursuant to a contract between it and the city of St. Lonis for the lighting of certain streets, it erected the pole in question, and before the cement in which it was placed had set and hardened the other defendants fastened an iron cable thereto and to other poles in the line and that owing to the heavy and violent pressure against the cable by the throng of people, assembled to witness the parade, the pole was caused to fall. Accepting as true all of the allegations, they do not state such facts as would warrant a judgment against this defendant. There is no averment that this defendant erected the pole which fell for any purpose other than furnishing light under its general contract with the city for lighting certain streets, and there is no averment that the pole was not well and sufficiently set for that purpose. The allegation is that the pole was “insufficient and insecurely fastened to withstand the pressure of a large crowd of persons upon, said iron rope or cable attached thereto,” but there is no allegation that the Union Electric -Light & Power Company knew the pole was to be put to any such use or subjected to any such pressure. As to this defendant, therefore, the demurrer was properly sustained. (2) The petition seeks to charge three defendants as tort-feasors. “While joint tort-feasors are severally liable for the injuries inflicted, yet to hold them jointly liable they either must have acted in concert or the act of one must have been of such a character as to have naturally resulted in causing the act of the other.” Stanley v. Railroad, 114 Mo. 606; Wiest v. Philadelphia,.200 Pa. St. 148; 29 Cyc. 488. 'The allegations of the petition show no joint negligence of the Union Electric Light & Power Company with the other defendants, or with either of them. It erected a pole for ordinary lighting purposes; not for the purpose of supporting cables “to withstand the pressure of a large crowd.” Its act, even if negligent, was a separate and not a. concurring act. (3) The petition shows that the act of the defendant city, in causing the erection of the pole and in stringing the cable, was a proper exercise of the police power, and therefore not unlawful. Hessel-bach v. St. Louis, 179 Mo. 505; Simon v. Atlanta, 67 Ga. 618. (4) Even if the act charged against the Union Electric Light & Power Company amounts to negligence, yet it was not the proximate cause of the accident, and therefore no case is stated against the Electric Company. Haley v. Transit Co., 179 Mo. 30; Railroad v. Kellogg, 94 U. S. 475. (5) Negligence is not the proximate cause of an accident, unless, under the circumstances, the accident was the probable and natural consequence, and was such as might and ought to have been foreseen by the defendant charged with such negligence. Strack v. Tel. Co., 216 Mo. 601; Paden v. Van Blarcom, 181 Mo. 127; Haley v. Railroad, 179 Mo’. 30; Warner v. Railroad, 178 Mo. 125-, Fuchs v. St. Louis, 167 Mo. 620; Brewing Assn. v. Talbot, 141 Mo. 674; Mathiáson v. Mayer, 90 Mo. 585. .

      Seddon & Holland for respondent, Bell Telephone Company.
    (1) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it contains no averment that the servants of defendant, Bell Telephone Company, at the time in question, were acting in the course of the discharge of the duties of their employment. McPeak v. Railroad, 128 Mo. 636. (2) The amended petition of plaintiff does, not state a cause of action against the Bell-Telephone Company, because it contains no allegation that the cable in question was not reasonably sufficient for the purpose for which it was furnished. Sind-linger v. Kansas City, 126 Mo. 315; Kelly v. Lawrence, 195 Mo. 75; Roberts v. Tel. Co., 166 Mo. 369; Tel. Co. v. Speicher, 59 N. J. 123; York v. Railroad, 117 Mo. 405. (3) The amended petition of plaintiff does not state a cause of action against 'the Bell Telephone Company, because it appears upon .the face of said petition that the happening therein'described could not reasonably have been anticipated by said defendant: Graney v. Railroad, 157 Mo. 666; Brewing Assn. v. Talbot, 141 Mo. 674; Goodrich v. Railroad,' 152 Mo. 222; Hysell v. Swift, 78 Mo. App. 39; Lohring v. Construction Co., 94 S. W. 747. (4) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it appears from said petition that the Telephone Company, if acting at all in the premises, was merely acting as the agent of the. city. Under such circumstances, it' would not be held liable to third persons for acts of nonfeasance. O’Neil v. Young, 58 Mo. App. 628; Harriman v. Stowe,’57 Mo. 93; Steinhauser y. Spraul, 127 Mo. 541; Kelly v. Railroad, 122 Fed. 286.

      William E. Baird for respondent, City of St. Louis.
    (1) Municipal authorities may properly withdraw from general use a part of the highway upon such occasions as the safety and comfort of the public demand. Hesselbach v. St. Louis, 179 Mo. 505; Simon v. Atlanta, 67 G-a. 618. (2) The petition shows> that a great public celebration had been planned and the stringing of the wire, so far from being a nuisance was a wise precaution for the comfort of spectators and in order to prevent an interruption of the ceremonies. Simon v. Atlanta, 67 Ga. 618; Dillon Mun. Corp. (5 Ed.), sec. 1174. (3) In placing the wire as a warning or guard, the city was not acting in its corporate capacity, but was exercising its police power and therefore is not liable for any alleged negligence. Williams, Liab. for Municipal Tort, p. 16; Heller v. Sedalia, 53 Mo. 153; Armstrong v. Brunswick, 79 Mo. 319; Kiley v. Kansas City, 87 Mo. 103; Murtaugh v. St. Louis, 44 Mo. 479; Welsh v. Rutland, 56 Vt. 228.
   WOODSON, P. J.

This was a suit instituted in the circuit court of the city of St. Louis, by the plaintiff against the defendants, to recover the sum of $25,-000 damages alleged to have been received by him for personal injuries, inflicted by the alleged negligence of the latter.

The defendants separately filed demurrers to the petition, which were by the circuit court sustained; and plaintiff declining to plead further, judgment was duly rendered against him, from which he timely appealed to this court'.

In the very nature of things this state of the record and the legal propositions presented thereby for determination, calls for a careful consideration of the petition.

It reads as follows (formal parts omitted):

“Plaintiff, by leave of court first obtained, files this his second amended petition, and for cause of action against defendants, states:
“That defendant Union Electric Light & Power Company is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri and engaged in furnishing light and power for hire in the city of St. Louis, Missouri.
“That defendant Bell Telephone Company of Missouri is and was at all times hereinafter mentioned, a corporation duly organized and existing under-the laws of the State of Missouri, and engaged in operating a telephone system and in stringing and maintaining wires and cables, along and over the streets of' the city of St. Louis, Missouri.
“That defendant city of St. Louis is and was at all times hereinafter mentioned, a municipal corporation, duly organized and existing under the laws of the State of Missouri and having charge of numerous streets in the city of St. Louis, State of Missouri.
“That plaintiff James C. Meehan, is and was at all times hereinafter mentioned, a resident of the city of Decatur, State of Illinois', and employed as general foreman in the car department of the Wabash Bail-road Company at said place.
“That prior to the injuries hereinafter complained of and on the-day of-, 1909, defendant Union Electric Light & Power Company and city of St. Louis, for a valuable and sufficient consideration, entered into a contract for the lighting by Union Electric Light & Power Company, of certain streets within the downtown business district of the city of St. Louis by means of electric lights supported on large, heavy iron poles or standards, about twenty feet high, placed or erected at or near the curb of the streets.
That included in the streets' thus embraced in ■said contract, is and was Twelfth street in the city of St. Louis, Missouri, and that on or about the 27th- day of September, 1909, the city of St. Louis, through its lighting department, issued a permit to the Union Electric Light & Power Company to erect and maintain a line of iron poles or standards supporting electric lights as provided by said contract, and hereinbefore described, along Twelfth street in the city of St. Louis, State of Missouri, and between Locust street and St. Charles street.
“That on or about July 24-, 1908, the Municipal Assembly of the city of St. Louis adopted the follow- . ing concurrent resolution:
“ ‘Whereas the attention of the Municipal Assembly has been called to the fact that November 9, 1909, will mark the one hundredth anniversary of the incorporation of St. Louis as a town; and
“ ‘Whereas, this event in the city’s history should be officially recognized and appropriately observed by a, celebration, participated in by all of our citizens, therefore, be it.
“ ‘Resolved, by the Council, the House concurring therein, that a committee of three from each house of the Municipal Assembly be appointed and that his Honor, the Mayor, be requested to call a meeting of the presidents of all the business, civic and professional organizations in the city to meet with the joint committee of the Municipal Assembly to arrange a plan for a dignified and appropriate celebration of the important event. ’
“That thereafter, on or about May 14, 1909, the Municipal Assembly of the city of St. Louis adopted the following concurrent resolution:
“ ‘Whereas, the Municipal Assembly by joint resolution has declared that the one hundredth anniversary of the incorporation of St. Louis “should be offi-dally recognized and appropriately observed by a celebration participated in by all of our citizens,” and
“ £"Whereas, the Mayor, in response to tbe request embodied in said joint resolution, called a “meeting of the presidents of all the business, civic and professional organizations in the city to meet with the joint committee of the Municipal Assembly to arrange a plan for a dignified and appropriate celebration of this important event,”, and
“ ‘Whereas, the joint committee of the Municipal Assembly, and the presidents of the business, civic and professional organizations have organized the St. Louis Centennial Association, with the Mayor of the city as president of said association, and
“ ‘Whereas, the plan for “a dignified and appropriate celebration of this important event” has been received with marked approval by the citizens of St. Louis, and
“ ‘Whereas, the Centennial Association has advanced in its preparations sufficiently to indicate that the celebration will be worthy of the city’s one hundred years of progress since incorporation, now, therefore, be it and it is hereby
“ ‘Eesolved, that the Honorable Mayor of the city of St. Louis be requested by the city council to extend to mayors of municipalities and to such other guests as he may see fit, invitations to visit St. Louis- during the week October 3-9, 1909, and to participate in the celebration. ’
‘ ‘ That under and by virtue of said concurrent resolution, St. Louis Centennial Association was organized, being an unincorporated body composed of about one hundred members and of which His Honor, the Mayor of St. Louis, was president.
“That the week beginning Sunday, October 3, 1909, pursuant to said resolutions, was known in the city of St. Louis- and the territory tributary thereto as Centennial Week, with numerous attractions of a national character, consisting of the Veiled Prophet’s, Industrial, Civic and Historical Parades, which were arranged for and advertised to take place by said St. Louis Centennial Association, in said city of St. Louis, Missouri, during said week, and said St. Louis Centennial Association invited and caused to be invited, by causing newspaper accounts of said attractions, and urging the public to attend, to be published in the city of St. Louis, and territory tributary thereto, the people generally,' in the United States, and particularly in the territory tributary to the city of St. Louis, to visit the city during said week and to enjoy and participate in its festivities.
“That among the attractions advertised for Centennial Week, by said St. Louis Centennial Association, was the Veiled Prophet’s Parade, on the evening of October'5, 1909, which consisted of a large number of gorgeous floats brilliantly illuminated, which said floats were propelled by means of electricity on and along the street railway tracks in the city of St: Louis, Missouri, in a procession, and passing, and so advertised to pass, and was so known to the defendants at the time of and long prior to the injuries complained of, along Twelfth street, between Locust and St. Charles streets in the city of St. Louis, Missouri.
“That in the street, and near the curb along Twelfth street and between- Locust and St. Charles streets, large reviewing stands had been erected with a view to accommodate parties wishing to view advantageously the Veiled Prophet’s Parade, and that said reviewing stands, and the streets and sidewalks adjacent thereto, were known as the Court of Honor, and was one of the principal places for witnessing said parade in the city of St. Louis, and was calculated to, and was so known to the defendants, or by the exercise of ordinary care might have been so known to them, to attract large crowds on the evening of said Veiled Prophet’s Parade.
“That between the 27th day of September, 1909, and October 5, 1909, the exact date this plaintiff is unable to state, Union Electric Light & Power Company, under its said contract with the city of St. Louis, and said permit, erected on the said sidewalk near the curb on the west side of Twelfth street, between Locnst and St. Charles streets, in the city of St. Lonis, a large iron pole or standard supporting an electric light of the character hereinbefore described, together with other poles of the same type, placed along Twelfth street at convenient distances.
‘ ‘ That prior to the injuries hereinafter complained of and on or about the — day of October, 1909, the city of St. Louis and Bell Telephone Company of Missouri, strung along Twelfth street on the west side thereof an iron cable attached to said pole hereinbefore described located near the curb on Twelfth street, between Locust and St. Charles streets, and ran and connected a said wire cable to the next succeeding pole, on the north side of the pole which fell, hereinbefore particularly described and designated, and which fell, as hereinafter alleged; that said iron rope or cable was strung along the edge of the sidewalk and at a height of about four feet therefrom, and was designed and intended by defendants herein, to prevent large crowds then and there to assemble during Centennial Week, to witness said attractions, from crowding one another off the sidewalk into the street.
“That the particular iron pole or standard here-inbefore described erected by the Union Electric Light & Power Company was, at the time of the injury hereinafter complained of, and was so known to the defendants and each of them, or by the exercise of ordinary care might have been so known to them and each of them, to have been insufficiently and insecurely fastened to withstand the pressure of a large crowd of persons upon said iron rope or cable thereto attached, in this, to-wit: that said pole or standard had been negligently erected by defendant Union Electric Liglit & Power Company npon the granitoid sidewalk at said point between the dates hereinbefore alleged, by reason of the cement at and within the base of said pole or standard not having been allowed to remain a period of time sufficient to enable said cement to harden and hold firm and support said pole or standard, and that there was left as practically the solé support thereof, four iron pins or bolts by which the base of said pole or standard was attached to the granitoid sidewalk as aforesaid, and that said pins or bolts and the threads upon the same were not sufficient to secure said pole or standard without the cement protection as aforesaid, and that said pins or bolts were insecurely driven, screwed and placed in said base and sidewalk, all under the circumstances herein alleged, and that by reason thereof, said pole or standard was insecure and insufficient to hold said pole or standard, under the excitement and interest arising by the approach and passing of said Veiled Prophet’s Parade, and defendants knew that, for the purpose of witnessing said Veiled Prophet’s Parade approach and pass at said point, a large crowd was liable to assemble and to press heavily upon said wire and pole or standard, causing it to fall and injure persons' on the sidewalk, or by the exercise of ordinary care said facts might have been so known to the defendants, and each of them, and thereby rendered said sidewalk and street then and there perilous and dangerous to persons thereon.
“Plaintiff further alleges that said’ iron cable strung for the purpose and under the circumstances herein alleged, was carelessly and negligently strung in this: That defendants, city of St. Louis and Bell Telephone Company of Missouri, knew or by the exercise of ordinary care could have known that said iron pole or standard which fell had been negligently erected by defendant, Union Electric Light & Power Company as herein alleged; and plaintiff alleges that said defendant, Union Electric Light & Power Company, negligently suffered and allowed said iron cable to he thus strung and attached to the said pole or standard which fell and which had by it been carelessly and negligently erected, as herein alleged.
■ “That the plaintiff (in response to said general invitation given through the public press of St. Louis as aforesaid, visited St. Louis on October 5, 1909, and while he, thus invited, on the evening of said mentioned day) was lawfully and properly standing on the sidewalk on Twelfth street between Locust and St. Charles streets, and in close proximity to said iron pole or standard, negligently erected and herein particularly described, and with said iron cable carelessly and negligently attached and fastened to said iron pole or standard thus insufficient and insecure as hereinbefore alleged, rendering his lawful position on the street unsafe and dangerous under the circumstances herein alleged, upon an outcry that the parade was coming, the large crowd then and there assembled upon the sidewalk, pushed forward heavily and violently against said iron cable and thereby and by reason of the carelessness and negligence of defendants herein alleged., caused said iron pole or standard to fall, striking plaintiff with great force and violence upon the head, knocking him unconscious, severely and permanently fracturing his skull and bruising and contusing his breast, and greatly and permanently shocking his nervous system.
“That by reason of the injuries thus sustained, plaintiff has suffered, and will in the future suffer, great pain of the body and mind; his hearing has been permanently impaired; his head is and will be permanently scarred and disfigured; he has lost and will in the future lose the earnings of his labor; he has incurred and become obligated for, and will in the future incur and become obligated for, large expenses for medicines, medical attention' and nursing, all to Ms injury and damage in the sum of twenty-five thousand dollars, for which sum he asks judgment against defendants, and for costs.”

The demurrer of the city was as follows (captions and signatures omitted):

“Now comes the city of St. Louis, one of the defendants in the above entitled cause, and demurs to the second amended petition filed herein, and for ground of its demurrer says that said second amended petition does not state facts sufficient to constitute a cause of action against this defendant, the city of St. Louis. ’ ’

On April 5, 1910, and during said April Term, defendant Bell Telephone Company of Missouri filed its demurrer thereto, as follows:

“Now comes the Bell Telephone Company and demurs to the second amended petition of plaintiff filed herein. And for ground of its said demurrer said defendant assigns that said petition does not state facts sufficient to constitute a cause of action against said defendant.”

And that of the Electric Light Company was as follows (caption and signatures omitted):

“Comes the above named defendant Union Electric Light & Power Company, and demurs to the second amended petition herein and for ground of demurrer shows:
“1. The petition does not state facts sufficient to constitute a cause of action against this defendant.
“2. The said petition on its face shows that the defendants created no obstruction to or nuisance in the street and place mentioned in said petition, and that what was done by defendants was a proper and lawful police regulation and for the public good and safety.
“4. The petition on its face shows that the alleged damage to plaintiff was not the proximate re-suit of the act of this defendant as set forth in said petition.
“5. The said petition on its face shows that the accident to plaintiff was manifestly an extraordinary one, arising from extraordinary conditions, and beyond such foresight as could be reasonably required to be anticipated.
“6. The said petition on its face shows that plaintiff could have as easily anticipated the consequences of the unusual condition resulting in the accident to him as could have this defendant, and by placing himself in the way of danger plaintiff was himself lacking in due care under the circumstances mentioned and set forth in said petition.”

Counsel for all parties have presented many legal propositions, and have learnedly briefed and argued the same in this court; hut the view we have taken of the case renders it unnecessary for us to consider hut one of them, and that is, does the petition state facts sufficient to constitute a cause of action against any or all of the defendants?

Counsel for plaintiff maintain the affirmative of this proposition, while those for the defendants insist upon the negative thereof.

In our opinion the circuit court properly held that the petition failed to state a cause of action against any one or more of the defendants, and our reasons for so stating are as follows:

The petition discloses the facts that the plaintiff was injured during the celebration of the one hundredth anniversary of the city of St. Louis; and that the Veiled Prophet’s Parade, among other things, was a part of the ceremonies — the fame of which, as the petition alleges, and as all know, has become national, and as the petition also alleges, which is also current history, or common knowledge, brings together large crowds of people, so vast in number that great prepara--tions must be and are made for their entertainment in the public streets of the city, consisting of reviewing stands, with roofs and cables stretched along the curbs and outer edge of the sidewalks, as warnings to prevent the crowds of people from encroaching upon the streets in front of the parade in its passage. •

We cannot shut our eyes to the fact that the parade mentioned in the petition passes along many miles of the streets of the city, and that the crowds consist, as the petition alleges, of great numbers, and as all know, hundreds of thousands who line the sidewalks practically throughout the length of the parade.

The petition alleges that ropes or cables mentioned are designed as barriers, barricading the people lining the sidewalks- from encroaching upon the street proper, which is’ reserved for the passage of the pageantry. Concede, as we prast, that to be true, yet they must in the very nature of the case be temporary in character and frail in structure, and. are not intended as fences or barricades to physically or forcibly keep the crowds of people on the sidewalks from encroaching upon the street.

We must read the petition in the light of common' knowledge regarding such matters, and that is, these barriers are intended only for the purpose of warning the people that they must,not pass that line, for the reason that the street proper is reserved for the pageantry; and not a barricade in the technical sense to retard or bar an enemy or a crowd which is bent upon entering the street. If that was the intention, then the cable would be wholly useless, because they could easily pass over or under the cable.

All of the respondents had a right to presume that the people viewing the parade understood the character and purpose of the cable or rope mentioned, and that they would act accordingly. -

That is true not only of - the Veiled Prophet’s Parade, but of all parades which pass along the streets in all towns and cities, which call forth throughout the entire country large crowds of people. The line of demarcation separating the people from the space reserved for the parade, in the very nature of things, is indicated by some frail or temporary structure, rope or cable, anchored to the most convenient objects already existing, along the line thereof, or by picking sentinels to give warning and keep the crowds back.

Should the law require permanent harriers or barricades along the streets upon such occasions, which would physically withstand the great weight and force of a crowd of people such as is described in the petition, should they see fit to throw their weight violently against it, the cost thereof would be so great that no city or anyone else for that matter, could afford to give an 'entertainment of this character, which is for the pleasure and amusement' of the people, without profit to anyone. ' . ■

The law required no higher degree of care of those who gave or participated in this entertainment, than that which is usually exercised by ordinarily prudent persons under similar circumstances.

The petition in this casé discloses the fact that this parade was conducted in precisely the same manner, as all know, that all such parades are conducted throughout the State and country, with ropes or cables stretched along the edge of the sidewalks, attached to trees, lamp posts, hitching posts, fences, electric-light, telephone arid telegraph poles, or any other object that may he standing along the line of the walk.

, It is not claimed that the injury in this case was caused through the negligénce of the defendants in furnishing a weak and insecure pole for .the anchorage of the cable in question, but because the cable was tied to the pole in question, which was suitable and sufficiently strong for the purposes for which it was erected, but not strong enough to withstand the great weight and force of the crowd of people who pushed against the rope upon this occasion, which the respondents had no more reason to anticipate would be done, than did the plaintiff.

The petition states that the pole had been erected some time between September 27 and October 5, 1909, upon a granitoid sidewalk, by means of bolts set therein and secured by means of cement filled around them, and that they extended upward and through the base or flange or the lower end of the pole and were made fast thereto by means of nuts screwed down on said bolts and against the said base or flange; that said cement had not had sufficient time in which to set and properly harden prior to the time of the accident; that the respondents knew of or by the exercise of ordinary care, could have discovered that fact, in time to have prevented the injury; and that in consequence thereof the cement and bolts gave way, and the pole fell and injured plaintiff when the people threw their weight violently against the cable, which, as before stated, was fastened to the pole about four feet above the ground.

While the demurrer admits the truthfulness of those allegations, yet does it necessarily follow therefrom, that the respondents are liable for that negligence, if negligence it was ? I think not; for the reason that the petition states that the pole was erected some time between September 27th and October 5th, a possibility of eight days.

With that knowledge coupled with the common knowledge that ordinarily cement sets and hardens and becomes as strong as it ever will in a much shorter time than eight days, can it be said that respondents could have reasonably anticipated that the cement in this case had not hardened in that time and that the weight and force of the people against the cable would have been sufficiently great to have pulled the pole from its fastenings in the sidewalk, when anchored as this one was? I think not.

I am, therefore, of the opinion that the judgment of the circuit court sustaining the demurrers was correct, and that it should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    RICHARD G. GRIFFITH, Executor, v. ORPHA WITTEN et al.; LAURA L. SHULER, Appellant.
    Division One,
    December 6, 1913.
    1. WILL: Indefinite and Uncertain: Illiteracy. If a paper writing purporting to be the last will and testament of á. deceased person is so vague, indefinite and uncertain that a court cannot by reasonable rules of construction determine the real intention and purpose of the deceased, such paper will be declared void; but, although the paper reveals the illiteracy of the writer, if it is susceptible of construction and expresses a defined purpose, and that purpose contemplates the disposition of all of testator’s property, it will not .be held to be void.
    2. -: Rules of Construction. The cardinal rule for the construction of a will is to get at the real intention and purpose of the testator; and they must be gathered from the instrument itself, if that be possible, and in arriving at them the whole instrument must be considered; but if ambiguity appear, if it is difficult to get at the intention of the will itself, then pertinent matters aliunde may be considered.
    3. -: -.: Aliunde Explanation: Children for Grandchildren. Where the will uses the word “children” in one place where the context shows testator was speaking of grandchildren, and the will directs that they were to have their share as they reached their majority, aliunde evidence is' competent to show that at the time the will was made none pf ■ his children was under age.
    4. -: Sale of Real Estate: Implied from Words Used. Although the will contains no express words authorizing the executor to sell the real estate, yet if it contains the words, “And the farm in Daviss County, Missouri, to Be Rented For the term of 2 years to give them to Be sold and the Grundy County Land to Be rented for 2 years to give Time to Be sold” and further on says “the timber land to he sold,” and the admitted facts show there were farm lands in both Daviess and •Grundy counties and a small tract of timber land, it will be held the will authorized the executor to sell the real estate at the end of two years.
    5. —■——: Intention to Dispose of Entire Estate. And where the will authorized the executor to sell the real estate and personal property, and gave one’ ■ thousand dollars to each of bis children and the residue to his grandchildren, it indicates testator’s purpose to dispose of his entire estate.
    6.-: Real Estate: Conversion ¡lito Money: And Reconversion by Election. Where it is clear that the testator intended all his estate to be converted into money and then distributed among his legatees, in equity the real estate will be considered as money for the purposes of the will and reconverted into land at the election of the legatees. A constructive or equitable conversion is as of the date of the will or death of testator, the actual conversion as of the date of the sale of the real estate, and the reconversion may take place at any time between constructive and actual conversion. To constitute reconversion there must be an election, by the legatees if they are adults, or by a court of equity if they are infants. So that where the will gave one thousand dollars to each of testator’s children, and the residue to his grandchildren, and gave power to the executor to sell his real estate after renting it for two years, and .there was sufficient personalty to pay the bequests to the children and all costs, the court of equity was empowered to decree that the lands should not be sold by the executor, but be vested in the minor grandchildren. .
    Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.
    Aefiemed.

      John G. Leopard and Alexander & Alexander for appellant.
    (1) The true intention of the testator is the cardinal rule to be observed in the construction of wills. R. S. 1899, sec. 4650; Cross v. Hoch, 149 Mo. 325. .But the intention must be clearly and definitely expressed by the testator in his will, and not in contravention of any fixed rules of law; “for while it is the duty of courts to construe wills, they cannot make them.” G-arth v. Garth, 139 Mo. 456; Lehnhoff v. Theine, 184 Mo. 346. The intention which controls is that which is manifest.(1) either expressly or (2) by necessary implication from the language of the will itself, as viewed in the light of the situation of the testator and the circumstances surrounding him at the time the will was executed. Cox v. Jones, 229 Mo. 53; Meiners v. Meiners, 179 Mo. 614. And in order that the devise •or bequest may he effectual the implication must be a necessary one, or so strong that a contrary intention cannot reasonably be supposed to have existed in the mind of the testator. 40 Oyc. 1389; Grant v. Hap-good, 13 Pick. 159; Masters v. Townshend, 25 N. E. (N. T.) 928. In the construction of wills, the inquiry is always, says BeáNNON, J., in Wills v. Foltz, 12 L. B. A. 283; “not what the testator intended or might have intended to express, but what do the words used express.” Where a testator uses in his will technical' words or terms, or words having a definite legal signification (“bequeath”) he will be presumed to have used them in that sense, and the will will be so construed unless a clear and unequivocal intention to the contrary is apparent from the context. And in case of doubt the technical meaning will always be followed. Drake v. Crane, 127 Mo. 85; Annabel v. Patch, 3 Pick. (Mass.) 360; Sheafe v. Cushing, 17 N. H. 508. And where the same words are employed by the testator in different parts of his will they must be presumed to be used always in the same sense. Elliot v. Carter, 12 Pick. 436; Stewart v. Stewart, 61 N. J. Eq. 25; Carr v. Smith, 161 N. Y. 636. Words in a will which are merely expressive of a desire .or intention on the part of the testator, and are merely advisory and pre-catory in character, do not amount to a testamentary disposition. Meyer v. Busterholz, 55 N. E. (Ind.) 870; Sheafe v. Cushing, 17 N. H. 508; Vincent v. Murray, 73 N. C. 15; Graham v, Graham, 48 Am. Bep. 364. And do not control or alter express dispositions in the will,. unless it is apparent from the language of the will that it was the testator’s intention that such words of desire or intention should be mandatory. (2) A testator is presumed to have intended to dispose of his entire estate, and not to have died intestate as to any part of it. But the presumption against partial intestacy arises however only where an intention to pass the whole estate is expressed in some definite form. Gallagher v. McKeague, 110 Am. St. 821; Talbott v. Tap bott, 1 Ky. L. R. 64; Hafins v. Hafins, 92 Pa. St. 305. Where it appears that the testator failed to dispose of part of his property by his will, the court has no power to put a different construction on the will in order to prevent a partial intestacy, but the testator must be held to have died intestate as to that part. Miller v. Worrall, 62 N. J. Eq. 776; Nixon v. Watson, 73 N. E. (Ill.) 306; Walters v. Neafus, 125 S. W. (Ky.) Í67; Duffield v. Morris, 8 W. & S. (Pa.) 348; Coberly v. Earle, 54 S. E. (W. Ya.) 336; Byers v. Byers, 6 Dana (Ky.), 313; Burke v. Boone, 51 Atl. (Md.) 396. (3) Where testator’s intention as expressed in his will is ambiguous or obscure, such a construction should be adopted as will dispose of his property in a just and natural way, such as by equal distribution among his children. 40 Cyc. 1411, notes 10,11; Graham v. Graham, 48 Am. Rep. 364. It is the uinversal rule, both in England and this country, that heirs are always fav-oréd in' preference to those not so closely related to the testator. 40 Cyc. 1412; Miller v. Worrall, 62 N. J. Eq.' 776. And hence heirs will not be disinherited by conjecture but only by express words in the will or by necessary implication arising therefrom. ■ 40 Cyc. 1412; Guitar v. Gordon, 17 Mo. 408. The burden of showing an intention to displace the heir at law is upon those who claim against him. Augustus v. Seabolt, 3 Met. (Ky.) 155. (4) Two clauses relating alone to the disposition of certain property and to the same persons with respect thereto, should, in order to arrive at the intention of the testator, be construed together as one clause. (“An eqnal share . . . these all to have an eqnal share of the remaining sum.”) Driggs v. Plunkett, 105 S. W. (Ky.) 976; Barber v. Baldwin, 128 S. W. (Ky.) 1092. (5) It is fundamental that in order to make a valid disposition of either personalty or realty, two things must always be present: (1) a definite subject, and (2) a definite object, and uncertainty as to either is fatal. 1 Jarman on "Wills (5 Ed.), 357. (6) All undisposed of property goes to the heirs at law. 40 Cyc. 1942, and note. And this is true even though the testator has expressed an intention that a certain person shall have only what he takes under the will. McQueen v. Lily, 131 Mo. 9.

      A. G. Knight for respondents.
    (1) A testator is presumed to have intended to dispose of all his property, and not to have died intestate as to part of it; and the presumption is against partial intestacy. Hurst v. Yon De Yeld, 158 Mo. 239; Tebow v. Dougherty, 205 Mo. 315; Simmons v. Ca-banne, 177 Mo. 336; Meiners v. Meiners, 179 Mo. 614; Whitelaw v. Rodney, 212 Mo. 548; Willard v. Darrah, 168 Mo. 660. (2) The true intention of the testator is the cardinal rule to be observed in the construction of a will. R. S. 1899, sec. 4650; Smith v. Hutchison, 61 Mo. 83; Morris v. Hale, 102 Mo. App. 449; Reinders v. Koppleman, 94 Mo. 338; Jarboe v. Hey, 122 Mo. 341; Cross v. Hoch, 149 Mo. 325. And the true intention must be determined, not from any particular words, phrases or clauses, but from the will as a whole. Shu-mate v. Bailey, 110 Mo. 411; Wálton v. Drumtra, 152 Mo. 489; Russell v. Eubanks, 84 Mo. 82; Brooks v. Brooks, 187 Mo. 476. And irrespective of any technical rules of construction which may stand in the way of the true intention. Dickerson v. Dickerson, 211 Mo. 483; O’Day v. O’Day, 193 Mo. 62; Grace v. Perry, 197 Mo. 550; Meade v.' Jennings, 46 Mo. 49; Metz v. Wriglit, 116 Mo. App. 631. When the court has determined the true intention of the testator, it will, if necessary to effectuate the same, change,' transpose, reject or sup.ply the words necessary. RóBards v. Brown, 167 Mo. 457; Nichols v. Boswell, 103 Mo. 151; White V. Mc-Cracken, 87 Mo. 262; Briant V. Garrison, 150 Mo. 668. (3) Though there is no express direction in the will ■that the.executor or anyone else shall sell the realty, still' no express direction 'is necessary; an implied direction, when the language of the will shows an intention that the land is to he sold, Jis sufficient. Powell v. Woodcock, 62 S. E. 1071; Lavaggi v. Borilla¿ 67 Atí. 929; Flynn v. Frank, 68 Atl. 196. (4) If a will is susceptible, when fairly construed, of two constructions, one of which would render it inoperative, in whole or in part, and the other give effect to it, the duty of the court is to adopt the latter construction. 30 Am. & Eng. Ency. Law, 667. (5) The realty passes under the quasi-residuary clause. And under such a clause, realty as well as personalty will pass, even though the word “bequeath” and not “devise” is used. .2 Redfern on Wills, 448; Carr v. Dings, 58 Mo. .406; Forster v. Winfield, 37 N. E. (N. Y.) Ill; Given v. .Hilton, 95 U. S. 591. (6) If the land does not pass directly, and if the clause giving the “remaining sum” cannot be considered as passing the realty to the devi-sees directly as a part of the residue, still it is sufficient to cover the. realty converted by the instructions of testator, in the view of a court of equity, from realty into money. If testator understood a direction of his will to impliedly impose on the executor the duty of converting his real estate into money, as a necessary step in dividing the property, etc., the order with the implied power of sale operated in equity to convert the realty into personalty. Harris v. Ingalls, 68 Atl. (N. H.) 34. And any direction in a will of a sale of realty ■ and a division of the proceeds, works an equitable conversion. Lash v. Lash, 70 N. E. °(TL) 1049; Starr v. Willoughby, 75 N. E. (Ill.) 1029, 2 L. R. A. (N. S.) 623; Duff v. Duff, 54 S. W. (Ky.) 711; Schlereth v. Dietrich, 66 N. E. (N. Y.) 130; Chick v. Ives, 90 N. W. (Neb.) 721; Becker v.'Chester, 91 N. W. (Ia.) 87; Burr v. Sun, 29 Am. Dec. 48; King v. King, 13 R. I. 501; Becker v. Chester, 91 N. W. (Ia.) 87. For the purpose of carrying out the manifest- purpose of the will, the realty will be considered converted into personalty. 3 Redfern on Wills, 139; Handley v. Palmer, 91 Fed. 948; Scott v. Douglass, 80 N. Y. Supp. 354; Shumate v. Bailey, 110 Mo. 411; Harris v. Ingalls, 68 Atl. (N. H.) 34. (7) Though there is no direct power of sale given the executor, or anyone else, still the same is not absolutely necessary; for there may be a power of sale implied. Powell v. Woodcock, 62 S. E. 1071; Lavaggi v. Borilla, 67 Atl. 929; Flynn v. Prank, 68 Atl. -196; Haggerty v. Lanterman, 30 N. J. Eq. 37; Van Winkle v. Fowler, 5 N. Y. Supp. 317; Blout v. Moore, 54 Ala. .360; Going v. Emery, 26 Am. Dec. (Mass.)'645; May v. Brewster, 73 N. E. (Mass.) 546. The realty need not be expressly devised to the executor to enable him to sell it, but a mere direction is sufficient to give him .that power. Compton v. McMahon, 19 Mo. App. 494; Bnoherb'v. Carter. 98 Mo. 647.
   GRAVES, J.

Richard G. Griffith the duly qualified executor of the last will and testament of Jackson Shuler, deceased, brought this- action in the circuit court of Daviess county, to have .construed the will of the said Jackson Shuler. The will was drawn by the deceased and is hot elegant either in diction or spelling. It reads: - •

“Will of Jackson Shuler His Will.
“ February the 20 1908 knowing -añd Bleve to Be in my Rite mind knowing the codition I am in to save trubel and Expence I Jackson Shuler make my firsl and Last Will and Tesament knowing myself to Be sound Mind I will or Bequeth to my sun Davied Sliuler One Thousand Dollars $1000.00 And I Jackson Shuler Will to or Bequeth to my Daughter Orpha Witten One thousan Dollars $1000.00 And I Jackson Shuler Will or Bequeth to my sun Zaehariah Shuler One thousan Dollars $1000.00 to Have at my Death after all Debts is paid and funeral Expenses is paid and Toom Stone is Put to My grave My household goods to Be sold and Personal Propty to Be sold at Public sale horses wagon Bugy harness and some farm Impliments Plows and tools and all grain on hand and hay And the farm In Daviss County Missouri to Be Rented For the term ov 2 years to give time to Be sold and the Grundy County Land to Be Rented for 2 years to give Time to Be Sold After the 3 children gets their shers and All Expences is Paid I jackson Shuler want or Will or Bequeth an Equal Shar to Each Grand Child Living who Names is Letha Witten and Heral J. Witten and Alford Witten and Hobert Shuler and William J. Shu-ler and Thelma Shuler and Irean Shuler and Doris M. Shuler these all to have an Equal Shear of the Remaining Sum I Apoint R. G. Griffith to Exicut this Will this is my Last Will and Testament of Jackson Shuler Zack to have all my cloths these children is to have their Shear as they Becom of Age Zack to have the Pictures and all the Books and Bible and the little Bible Dave a Bed and Zack a Bed and Orpha a Bed and the Rest of things to be sold at Public sale This I sign knowing Whalt I Sine and Am in my Rite Mind and Last Will and Testament.
“JacksoN Shuler
“This Will Directs that the Exicuter gives a Bond in which case he'mus comply with the Pervisions of the Will and Give the Bond Before he is qualified to act as Exicutor Also the Timber land to Be sold.
‘ ‘ JacksoN Shuler
“Nathah DAVISSON
“EugeNE Ham. ’ *

The petition of the plaintiff sought light from the trial court upon the following alleged uncertain and indefinite parts of the will:

■ “That said will is vague, uncertain and indefinite in this:
“1. As to whether or not the will requires the land belonging to said Jackson Shuler at the time of his death, to be sold by the executor after two years, or at any other time, and the proceeds distributed.
“2. As to whether or not the grandchildren mentioned in the will are to receive all of the personal property after the payment of the legacies of one thousand dollars each to his three children named in the will.
“3. As to whether or not it is the intent of said will to give to said grandchildren each the sum of one thousand dollars out of the personal property.
“4. As to whether or not the will requires the sale of all the land by the executor after two years and the distribution of the proceeds of sale among the children and grandchildren of said deceased, in any ratio or proportion.
“5. As to whether or not the grandchildren mentioned in the will participate to any extent in the real estate or proceeds thereof, owned by the deceased at the time of his death.
“6. As to whether or not said grandchildren participate in any part ,of the estate of said deceased, except personal property and that only, after the payment of the legacies of one thousand dollars each to Orpha Witten, David Shuler and Zachariah Shuler and after payment, out of said personal property, for expenses of last sickness, tombstone, debts and costs of administration.
“This plaintiff further says that a dispute has arisen between the heirs and legatees under said will as to the construction thereof in the particulars above set forth, and that a further question has been raised as to tlie right of this executor to distribute and pay to the defendant, Laura L. Shuler, the widow of David Shuler, deceased, the share, if any, or any part thereof, of said David Shuler in said estate; that the defendants are legatees and beneficiaries under said will and are the sole persons named therein as such; that they constitute all of the children and grandchildren, heirs, devisees and legatees of said Jackson Shuler, deceased; that by reason of thé vague, indefinite and uncertain provisions of said will, and of the difference and disputes that have arisen concerning the consideration thereon, this plaintiff cannot proceed with the administration of said estate and the distribution of. the assets thereof, without the construction of said will and the guidance and direction of this court.”

Under the evidence it appears that this will was duly probated, and the inventory of the estate shows personal' property to the amount óf eight thousand dollars. Outside of this formal proof the case was submitted upon the will and the following admissions:

“It is admitted that Jackson Shuler died on April 5, 1908.
“It is admitted that Bichard G. Griffith is the duly named, appointed, qualified and acting executor of the will of Jackson Shuler, deceased.
“It is agreed that at the time of his death Jackson Shuler was the owner of 167 acres, more or less, in Daviess county, Missouri, described as follows:
“The east half of the southwest quarter of section 11, township 61, range 26, and the west half of the southeast quarter of section 11, township 61, range 26; also a strip 10 rods wide, commencing in the southwest corner of the east half of the southwest quarter of section 11, township 61, range 26, and running north far enough to make 7 acres; in all 167 acres, more or less, in Daviess county. • ■
“And' the following described land in Grundy county, Missouri:
“Twenty-four acres situated in tlie northwest quarter of the northeast quarter of section 15, township 61, range 25.
“Timber land in Grrundy county, in section 8, township 61, range 25, containing 14.51 acres, more or less.
“It is admitted that at the time of his death, Jackson Shuler was possessed of personal property of the value between seven and eight thousand dollars.
“It is admitted that the wife of Jackson Shuler was dead at the time of his death.
‘ ‘ That he left surviving him three children, Orpha Witten, a daughter, David Shuler and Zachariah Shu-ler, his two sons.
“It is admitted that David Shuler died after the death of his father and that David Shuler had no children.
“It is admitted that Orpha Witten was the wife of Harry Witten, and had three children only, that is to say, Letha Witten, Harold J. Witten and Alfred Witten.
“It is admitted that Zachariah Shuler had five children only, that is to say, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler; and it is further admitted that the name appearing to be Orean or Irean in the will is identical with Irene Shuler, and that thereby the testator intended to name his grandchild, Irene Shuler.
“It is admitted that Jackson Shuler left surviving him no, other children or descendants of a deceased child; that the children of Orpha Witten and Zachariah Shuler, aforesaid, were and are his only grandchildren.
“It is admitted that Letha Witten, Harold J. Wit-ten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris A. Shuler are all minors, under legal age.
“That all parties, plaintiff and defendants, in this case live in Daviess, Harrison and Grundy counties, Missouri.
“It is admitted that David Shuler died without issue, leaving a will, by the terms of which all of his property passes to his wife, Laura L. Shuler.
“It is admitted that a controversy has arisen between the legatees and executor and between the legatees, as between themselves, as to the construction of this will.
“It is admitted that the Heral J. Witten, as written in the will of Jackson Shuler, means and was intended for Harold J. Witten; and it is admitted that the name Alford Witten, written in the will, was in tended for and ought to be Alfred Witten; and that the name Hobert Shuler was intended to be and should be Hobart Shuler. It is admitted that where the name Doris M. Shuler appears in the will it was intended to be and ought to be Doris A. Shuler.
“It is admitted that at the time of making the will in evidence Jackson Shuler was on equally friendly terms with all his children and grandchildren named as beneficiaries in said will. ’ ’

By its judgment the circuit court thus construed said will:

“The court finds that said Jackson Shuler intended by his last will and testament to, and that he did bequeath to David Shuler, his son, one thousand dollars and one bed; that he intended to and did bequeath to Orpha L. Witten, his daughter, one thousand dollars and one bed; that he intended to and did bequeath to Zachariah Shuler one thousand dollars and all the clothing of said Jackson Shuler and his pictures and his books and two Bibles and one bed; that all the rest, residue and remainder of his personal property, after payments of debts, funeral expenses and a monument or tombstone for his grave and the cost of administration and the legacies aforesaid, was by said Jackson Shuler intended to be bequeathed, and be did, by said will, bequeath such rest, residue and remainder to bis grandchildren, Letha Witten, Harold J. Wit-ten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler share and share alike, that is to say, one-eighth to each.
“The court further finds that the said last will and testament of said Jackson Shuler, deceased, does not authorize the real estate belonging to him at the time of his death to be sold by the executor; that said executor has no power under said will to sell the same; that said Jackson Shuler intended by his said will and testament and did thereby devise, all the real estate of which he died seized to his said grandchildren, to-wit, Letha Witten, Harold J. Witten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler share and share alike, that is to say, one-eighth to each of them.
“It is therefore ordered, adjudged and-decreed by the cotirt thát said last will and testament of said Jackson Shuler, deceased, be and the same is hereby construed, defined and adjudged to be in accordance with the findings aforesaid; that David Shuler, son of said Jackson Shuler, take under said will the legacy therein provided of one thousand dollars and one bed; that his daughter, Orpha L. Witten, take under said will the legacy therein provided for her of one thousand dollars and one bed; that his son, Zachariah Shu-ler, take under said will the legacy therein provided of one thousand dollars and all the clothing of said Jackson Shuler and his pictures and books and two Bibles and one bed; that Richard Gr. Griffith, executor of the last will and testament, is ordered and directed by the court to pay to said David Shuler, Orpha L. Witten and Zachariah Shuler or their legal heirs or legal representatives the legacies aforesaid.
“It is further ordered by the court that the debts of said Jackson Shuler, if any, his funeral expenses, and a monument or tombstone for his grave and the costs of administration of his estate shall in addition to the legacies aforesaid be paid and defrayed out of the personal property belonging to said estate, if sufficient, thereto, by said executor, and that the rest, residue and remainder of said personal property, after having paid the debts, funeral expenses, for a monu■ment or tombstone for the grave of said Jackson Shu-ler, and the cost of administration of his estate and the legacies aforesaid, shall by. said executor be paid to and distributed among the grandchildren of said Jackson Shuler, deceased, to-wit: Hobart Shuler, "William J. Shuler, Thelma Shuler, Irene Shuler, Doris M. Shuler, Harold J. Witten, Alfred Witten, and Letha Witten share and share alike, that is to say, one-eightli to each. And it is further ordered by the court that upon the expiration of two years from the date of the death of said Jackson Shuler he shall turn over all of the real estate of which said Jackson Shuler died seized to the grandchildren of said Jackson Shuler, deceased, to-wit, Letha Witten, Harold J. Witten, Alfred Wit-ten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris’M. Shuler, who shall take said real estate share and share alike, that is to say, one eighth to each, and it is further ordered by the court that the cost of this proceeding be taxed against and paid by the estate of said Jackson Shuler, deceased.”

All of the defendants seem satisfied with the judgment nisi except Laura L. Shuler, the widow of David •Shuler, who has appealed. She 'filed a separate’ answer, but its terms need not be set out further than to say that it sufficiently raises the questions urged by her in this court. This states the case.

I. Laura L. Shuler,.the appealing defendant, is the wife and devisee by last will of the son David Shuler who died after the father, Jackson Shuler. She contends (1) that the purported will is so dense, dark and vague as not to he susceptible of construction, and that by reason of this fact it is void, and (2) that if susceptible of construction, it should he so construed as to say Jackson Shuler died intestate as to his real estate. These are the two principal contentions raised by her answer, and upon that pleading and the admitted facts, she seeks our judgment.

If as a fact a paper writing purporting to be the last will and testament of a person, is so vague, indefinite and uncertain, that a court cannot by reason- able rules of construction determine the real intent and purpose of the deceased, then such paper writing should he declared void. The legal proposition urged by appellant this court has and will recognize, but a sufficient answer here is that we think this will susceptible of construction. It reveals the illiteracy of the writer, but in it all we think there is a well-defined purpose expressed, and more, that such purpose contemplated the disposition of all his property. We therefore decline to follow the lead of appealing defendant to declare the paper writing void.

II. Now going to the instrument itself, what was the intent of the testator? The cardinal principle of will construction is to get the real intent and purposes of the testator. These must be gathered ^rom the instrument itself, if such be possible, but in so gathering the intent and purpose of the testator the whole instrument must be considered. It must, • in other words, be considered from its four comers. Of course, ambiguity appearing, if there is trouble in getting at the intent from the instrument itself, then pertinent matters aliunde may be considered in determining the intent. These fixed rules of construction cannot be gainsaid, and citation of cases would be but to encumber, ratber than to elucidate, an opinion.

Reverting to' tbe instrument itself. It is true there isn’t a punctuation mark throughout, yet there is a rather mixed use of capital letters, which gives us some idea of the beginning and ending of sentences. From the instrument it is clear to our minds that the purpose of the testator was to dispose of all his property, both real and personal. "We are further. im- pressed with the idea that the testator had in mind the sale of his real estate, although there are no express words directing the executor to sell. The instrument says: “And the farm in Daviss County Missouri to Be Rented For the term of 2 years to give time to be sold and the Grundy County Land to Be Rented for 2 years’ to give Time to Be Sold.” Again at the close of the will are the words “the timber land to be sold.” The admitted facts show that there were farm lands in both Grundy and Daviess counties, and that there was also a small tract of timberland. Taking these expressions in the will as indicative of a purpose, it appears to us that the idea of the testator was to reduce all his belongings, except the small individual bequests, to cash,. and then after paying the specified legacies of $1000 to each of his three children, and the expenses of the administration, debts and tombstone cost, the residue should be equally divided between the eight grandchildren named, such grandchildren to have their respective shares as they reached their maturity. It is true that he used the word “children” in one place, where he should have said grandchildren, but the entire context shows that he was speaking of grandchildren. Not only does the context so speak, but aliunde it appears that there were none of his own children under age, and he must have used the word “children” for grandchildren, having reference by the use of such words solely to the ages of the beneficiaries, rather than the exact relationship to him. If, as we think, the purpose of the testator was to dispose of his entire estate, then does the judgment nisi sufficiently effectuate that purpose, and along the lines of distribution above indicated? We think so. That testator had in view the disposition of his whole estate is evident from his expressed idea that there should be a sale of it at the end of the two years of rental period. If he contemplated the sale of his lands and personal property and thus the reduction of his entire estate to cash, it then becomes evident that he only desired his own children to have the sum of $1000 each out of his estate, leaving the residue of the entire estate to be divided among his eight grandchildren. We cannot agree with counsel for appellant, when they say that there is nothing upon the face of this will to indicate the intent of the testator to dispose of his entire estate. Why talk about selling the land at all, if there _was no purpose to dispose of the land by the will? We are not even driven to the principle which usually accompanies wills, i. e., that it is presumed in the construction of wills that the testator intended to dispose of his entire estate. [Tebow v. Dougherty, 205 Mo. 1. c. 321, and cases cited therein.] In the instrument before ns, awkwardly drawn as it is, we have clearly expressed ideas of disposing of the entire estate, and for the purpose, as expressed in the will,, “to save trub-el and Expence.” The spelling and capitalization may be bad, but the ideas are good.

III. The trial court held that there was no power in the executor to sell the real estate. There is no express power given, although the intent of the testa- tor is clear. In such case was the trial court right in decreeing the real estate to belong to the grandchildren? We are inclined to the view that this part of the decree can be upheld upon the doctrine of equitable conversion. In other words, if it is clear that the testator intended that all his estate be converted into cash and then distributed under the will, then in equity the real estate will be considered as cash for the purpose of the will, and reconverted into land at the option or election of the beneficiaries. [Nall v. Nall, 243 Mo. 1. c. 256-7.]

In Harris v. Ingalls, 74 N. H. 1. c. 343, it is said:

“If he understood his order to the executors impliedly imposed upon them the duty of converting his real estate into money as a step necessarily to be taken in dividing the property into four equal parts, the order with the implied power of sale operated in equity to convert the property from realty to personalty (Perkins v. Coughlan, 148 Mass. 30; Salisbury v. Slade, 160 N. Y. 278, 288, and authorities cited; Penfield v. Tower, 1 N. D. 216) and the use of the word ‘bequeath’ was technically correct. ’ ’ And in the same case at page 343, it is further said: “Upon all the facts now pre•sented, it appears reasonably clear that the testator intended, by the provisions of the will, to impose upon the executors the duty of converting the residue of the property, real, personal, and mixed, into money as a necessary incident of its division into four equal parts, and the duty of distributing the parts among the legatees as set forth in the residuary clause of the will; and the plaintiffs are so advised. As was said in the former opinion, if the legatees all prefer to take the real estate and hold it in common and so elect, the executors will not violate their duty by allowing the legatees to so take the property. Indeed, if the legatees are all sui juris, it would seem that they have the right to elect to reconvert the property to real estate. [Sears v. Choate, 146 Mass. 395; Greenland v. Waddell, 116 N. Y. 234; Mellen v. Mellen, 139 N. Y. 210; Huber v. Donoghue, 49 N. J. Eq. 125; Lash v. Lash, 209 Ill. 595; Boland v. Tiernay, 118 Iowa, 59; Bank of Ukiah v. Rice, 143 Cal. 265; Craig v. Leslie, 3 Wheat. (U. S.) 563; Pom. Eq. Jur., par. 1175; 1 Sto. Eq. Jur., par. 793.]”

This Harris case in some respects is very much like the case at bar. In the case at bar there is a direction to pay each of the children $1000, but these bequests are not restricted to the sale of the personal property. Under this will, had the personal property proven insufficient, there can be no question that such legacies could have been paid out of the real estate, and this is an additional circumstance tending to show an intent on the part of the testator to have his real estate sold, bnt only a slight circumstance when we go to the proof aliunde as to the value of the personal estate. But going back to the doctrine of “equitable conversion” and “reconversion by election” it is sufficient to say that the facts of this case bring the decree of the chancellor below well within the limits of the rule as to “equitable conversion” and “reconversion by election” as discussed and held in Nall v. Nall, supra. If, as we hold, the will contemplated the sale of the real estate, then there was a conversion in equity of the land into money at the death of the testator.

In the case of Chick v. Ives, 90 N. W. (Neb.) 1. c. 754, it is said:

“It seems clear that the will, by a fair construction of its terms, and every implication, worked an equitable conversion of the real estate of the testator into money. [Clarke v. Clarke, 46 S. C. 230; Farmer v. Spell, 11 Rich. Eq. 547; Perry v. Logan, 5 Rich. Eq. 202; Moore v. Davidson, 22 S. C. 94; Jaudon v. Ducker, 27 S. C. 295; Penfield v. Tower, 1 N. D. 216; Dodge v. Williams, 46 Wis. 70; Chandler’s Appeal, 34 Wis. 505; Dodge v. Pond, 23 N. Y. 69; Craig v. Leslie, 3 Wheat. 563; Bank v. Paulsen, 57 Neb. 717; 1 Pom. Eq. Jur., p. 413.] The learned judge of the district court was therefore mistaken in his construction of the will, and his view of the law to be applied to its provisions. We therefore hold that under the will in question there was an equitable conversion of the testator’s real estate into money at the time of his death.”

The will under construction in this case, like the case at bar, contained no express power or direction to sell, bnt left the intent to be gathered from the context. It will be observed the court held the equitable conversion to have been of the date of the testator’s death.

In Becker v. Chester, 115 Wis. 1. c. 116, the Wisconsin court thus puts it:

“The general principles to be satisfied in determining whether equitable conversion of personal property into realty or realty into personalty was wrought in any given case, are too well understood to call for any extensive discussion of them. Equity deems that done which ought to be done. Therefore, if a- testator, in a valid testamentary way, unmistakably directs, expressly or by unmistakable implication, that his real estate shall be treated in the administration of his estate as personalty, equity will deem that purpose impressed upon the property immediately upon the taking effect of the will, and rules regarding personal property will govern.”

To like effect are Lash v. Lash, 209 Ill. 595, and Starr v. Willoughby, 218 Ill. 485.

The “equitable conversion” of the real estate into money continues until such time as there is an actual conversion, or until by election there has been a “reconversion. ’ ’ This reconversion may take place at any time prior to the actual conversion. The constructive conversion or “equitable conversion” is as of date of the will or death of testator; the actual conversion is as of the date of the sale of the real estate. [Nall v. Nall, supra, and cases therein- cited and reviewed.] As stated in the Nall case the reconversion may take place at any time during the period of constructive conversion and prior to actual conversion. In the .case of adults there must be an election, but this election may come at any time before actual conversion. In the case of infants, as here, the court of equity may make the election for them, if the necessities of the case so require it, and the interest of the minors would thereby be best subserved. In the instant case the real beneficiaries are the eight minors. Under the will and the showing made in this case, they would be entitled to all the proceeds of this land, if it were sold. Under such facts the trial court had the power to elect for them to reconvert the property into land and decree that they so hold it. Upon this theory of .the law the judgment nisi is correct. Let the judgment be affirmed.

All concur.