author: WALKER, J.

text:
    THE STATE, v. J. N. CONLEY, Appellant.
    Division Two,
    December 4, 1919.
    1. INSTRUCTION: Carrying Concealed Weapons. An instruction that “if you find from the evidence that the defendant had the pistol in the seat of his wagon, and so carried it, and did not have it concealed on or about his person, then you must find the defendant not guilty.” is properly refused, for that it limits the jury’s finding to a concealment “on or about his persón.” Under the statute (Sec. 4496, R. S. 1909) the pistol, though not actually on the person of accused, may be in such close proximity as to be within his easy reach and convenient control, and were such the fact the concealment would constitute the crime.
    2. -: Refusal of Correct: Covered by Others. It is not error to refuse a correct instruction if another given on the same subject contains a full and correct statement of the law applicable to the pertinent facts.
    3. -: Carrying Concealed Weapons: Intent. The defendant’s intent to conceal the weapon may be inferred from direct testimony that it was concealed, and where there is such testimony an instruction as to his intent in carrying it is not required.
    4. -: -: -: No Specific Intent Required by Statute. The purpose of the statute was to prohibit the carrying of concealed weapons upon or about the person; and the rule isi that, where the statute on which an indictment is based does not couple with the prohibited act any specific intent but makes the commission of the act itself the offense, it is not necessary that an instruction, otherwise fully embracing all the essential elements of the offense, should specifically mention the element of intent.
    Appeal form Adair Circuit Court. — Hon. James A. Cooley, Judge.
    Affirmed.

      8. N. Mills for appellant.
    (1) If the defendant did not have the pistol about his person, especially if he did not have it concealed, he could not he gpilty as charged.. Sec. 4496, R. S. 1909; State v. Hale, 170 Mo. App. 143; 2 Whartons Criminal Law, seo. 1557; Bidentur v. State, 65' Ind. 411; Smith v. State, 69' Ind. 140'. (2) The court erred in that he did not instruct on all the law of the case. The court failed to instruct on the question of the intent with which the pistol was carried. Intent is the gist of the crime, and there was no instruction on this point, and if the defendant did not intend to carry the revolver concealed he is not guilty, and the court should, have so instructed the jury. State v. Murry, 39' Mo. Ap-p. 127; State v. Hale, 70' Mo. App. 143; 10' Cyc. 863-, 864; State v. Garter, 250 Mo. 349. (3) The'court erred in giving- the State’s instruction Number 2. This instruction is erroneous, in this that it tells the jury that if they find the revolving pistol was in the seat o.f? defendant’s wagon, and concealed from view it was a concealed weapon about his person, within the meaning of the law. 10 Cyc. 863; 8 Cyc. 543.

      ' Frank N. McAllister, Attorney-General, and Thos. J. Cole for respondent.
    (1) Appellant’s instruction 2 was properly refused, because it assumes that if the defendant had the weapon concealed in the seat of his wagon it was not concealed on or about his person, although defendant was sitting! in the wagon. Wagner v. State, 188 S. W, 1001; Mayfield v. State, 75 Tex. Cr. 103; DeFriend v. State, 69 Tex. Cr. 329; Kendall v. State, 118 Tenn. 156'; Leonard v. State, 56 Tex. Cr. 84; Hill v. State, 50 Tex. Cr. 619; 40' Cyc. 856. (2) Appellant’s sixth allegation in Ms motion for a new trial'that the court failed to instruct the jury that they must find that defendant intended to conceal the weapon before they could find him guilty must he disallowed for the reason that appellant requested no such instruction, nor did he, at the time the instructions were given, save an exception to the failure of the court to instruct on all of the law of the case. State v. Coot, 207 S. W. 833; State v. Pfeifer, 267 Mo. 23; Sec. 5245, R. S. 1909'.
   WALKER, J.

Appellant was charged by information in the Circuit Court of Adair County with carrying concealed weapons in violation of Section 4496, Revised Statutes 1909. Upon a trial he was convicted and sentenced to pay a fine of one hundred dollars. From this judgment he appeals.

Appellant was a huckster or vender of vegetables in the City of Kirksville. While plying his vocation he was approached in a threatening manner by one Kephart. Appellant rose from the seat on the wagon on which he had been sitting and drawing a pistol, either from the seat or his pocket, he shot Kephart in one of his legs.

The refusal of trial court to give instruction numbered h asked by appellant is assigned as error. This instruction is as follows:

“The court instructs the jury that if you find and believe from all the evidence that the defendant had the revolving pistol in the seat of his wagon at the time in question, and so carried it, and did not have the pistol concealed on or about his person, then you must find the defendant not guilty./ ’

This instruction was properly refused because it failed to hypothecate the fact as to. the appellant’s guilt if the evidence showed that the pistol was concealed on the seat of the wagon and limits the jury’s finding .to a concealment “on or about the person” of the appellant. The words “on or about” as thus used are clearly intended to be so limited by the instruction. This is an incorrect statement of the law. Under the statute (Sec. 4496, R. S. 1909) defining this offense, the concealment, although not actually on the person, may be in such close proximity to the accused as to be within his easy reach and convenient control; and upon proof of this fact the offense is made out. [State v. McManus, 89 N. C. 555.]

However, if the essential condition omitted from this instruction appeared therein, no error can be predicated upon its refusal because of. the giving of the following instruction, to-wit:

“The court instructs the jury that it is not necessary that the revolving pistol should be in the defendant’s pocket of his clothing to constitute it a concealed weapon about Ms person. If you find and believe from, the evidence beyond a reasonable doubt that the revolving pistol was in the pocket of the defendant’s clotMng and thereby concealed from view, or if you find and believe from the evidence beyond a reasonable doubt that the revolving pistol was not in the pocket of'defendant’s clothing but was in the seat of his wagon and concealed from view so that it could not be seen, then In either case such weapon was a concealed weapon about his person within the meaning- of the law.”

This instruction correctly declares the law in that it contains all the essentials necessary for the jury’s consideration in determining as to the guilt or innocence of appellant under the evidence. The refused instruction does not do, this but attempts by its terms to limit the words “on or about Ms person” to a concealment by the accused of the weapon in his wearing apparel. The. fact of concealment constituting the gravamen of the offense, a construction which would limit the law as contended by appellant would defeat its purpose and render convictions in cases sof this character difficult if not impossible.

The rule announced in State y. Carter, 259 Mo. 349, that when there is a contested issue of fact as to the concealment of the weapon or as to the intention of the accused in concealing same, the question of appellant’s intent should be submitted to the jury by a proper instruction. In the Carter case there was no affirmative evidence of concealment of the Weapon and the circumstances tended to corroborate the claim of the accused that it did not exist. Such are not the facts here. There was direct testimony that the weapon was concealed. “This,” says the learned jhdge who wrote the opinion in the Carter case (page 359), “where the State’s evidence shows that the weapon was concealed, is a sufficient prima-f'acie showing that the accused intended to conceal it, because from, such proof it may well be inferred or presumed that he intended to do that which in fact,he did do.”

The legislative aim in the enactment of this statute was to prohibit the carrying of concealed weapons upon or about the person. In the face, therefore, of affirmative proof of this fact, an instruction as to intent is not required, not only for the reason stated in the Carter case, but under the more general rule that a presumption of intent is to be reasonably inferred from the' commission of the act. "Where it is shown that an act is forbidden by law the criminal intent is thereby consummated. [State v. Silva, 130 Mo. l. c. 463; King v. Philips, 6 East. 464.] In short, where the statute on which an indictment is. predicted does not couple with the prohibited act any specific intent but makes the commission of the act itself the offense, as in the case at bar, then it is not necessary that an instruction covering the offense should specifically mention the element of intent, provided its terms are otherwise sufficient to include in a general way all the elements essential to the commission of the forbidden act. [State v. Pate, 268 Mo. l. c. 437; State v. Lentz, 184 Mo. l. c. 249; State v. Larew, 191 Mo. l c. 199.]

The evil sought to-be corrected is a serious one and the courts owe it to the public, as was well said by Reynolds, J., in State v. Hovis, 135 Mo. App. l. c. 546, “to see that the object of the statutes is not frittered away by a narrow construction.” "We therefore hold that this contention of appellant is not well founded.

There was substantial evidence of the concealment of the weapon. The jury so found and it is not within our province to disturb this finding. [State v. Barton, 209 S. W. 888.]

In the absence of any prejudicial error the judgment of the trial court is affirmed.

All concur; Williams, J., in result.


source: Caselaw Access Project

author: WILLIAMS, P. J.

license: Public Domain

text:
    THE STATE v. JOHN HARTLEY, Appellant.
    Division Two,
    December 4, 1919.
    THEFT: Hogs on Range: Sufficient Evidence. Hogs ran loose on the range about a mile from the home of their owner, whose name was Sco'tt; appellant, who lived ten miles away in another county, was seen on Friday morning about a mile from Scott’s home traveling on horseback, and stated he was going to see about some stave timber; Saturday afternoon, two witnesses met him about two miles from his own home, walking down the public roads with five hogs in front of him, and he said that he thought they were Jasper Crow’s; later they were identified as the property of Scott and as some of the hogs that had been running on the range; while the witnesses were talking to him about their ownership, the hogs moved to one side of the road, and appellant walked on; the next morning Scott found the hogs within one hundred yards of where appellant had left them; several witnesses testified that the hogs were stiff and sore, and had the appearance of having been driven a considerable distance; two witnesses testified that they were able to track the hogs for about four miles up to this point, and that the tracks of a man followed them. Held, that the evidence was sufficient to sustain a conviction.
    Appeal from Washington- Circuit Court. — Hon. E. M. D.earing. Judge.
    Affirmed.

      Ciarlo & Cunningham for appellant.
    (l)-The evidence is insufficient to establish,the corpus delicti. State v. Lee, 182 S. W. 972. (2) The evidence is insufficient to support the judgment of conviction. State v. Lee supra; State v. Counts, 234 Mlo. 580.

      Frank W. McAllister, AttorneyJIeneral, and L. H. Cook, Special Assistant, for respondent.
    (1) While brief, the evidence was ample to sustain the verdict. The owner, as well as the other witnesses, identified the hogs as the property of the former. Witnesses Kimberlin and Scott confronted the defendant driving’ the hogs in the direction of the defendant’s home and tracks in the road .made by the defendant and the hogs clearly showed that they were driven from their usual pasture. This alone is sufficient to prove the wrongful taking and carrying away by the defendant of the personal property of another. The jury was qualified to judge of the intent.
   WILLIAMS, P. J.

Upon an information charging him, with the larceny of six hogs, the property of one Thomas Scott, defendant yas tried in the Circuit Court of Washington County, found guilty, and his punishment assessed at imprisonment in the penitentiary for two years. Defendant has duly perfected an appeal.

The evidence upon the part of the State tends to establish the following facts:

The crime is alleged to have occurred on October 13, 1917. At that time one Thomas Scott, a farmer living in Washington County, was the owner of nine hogs, each weighing about one hundred and twenty-five pounds. The hogs were black with a few white spots on them and were marked with a “split” in the right ear and with a “half crop” in the left ear. The hogs ran loose on the range about one mile from Mr. Scott’s home. Mr. Scott took feed to the hogs about once each week and usually found them at about the same place on the range. The appellant lived over in the edge of Crawford County, about ten miles distant from the Scott home.

On Friday morning, October 12, 1917, the appellant was seen on horseback about one mile from the home of Thomas Scott, going in a direction which would take him away from his home. He then stated that he was going to see about some stave timber.

The next afternoon (Oct. 13, 1917), a little before sundown, two witnesses met the appellant on the public eight miles from Mr. Scott’s home. One of these wit-road at a point about two miles from his home and about nesses stated that appellant “was coming down the road with some hogs ... he was behind the hogs . . . I saw him kick one of the hogs.”

It developed later that these five hogs were the property of Thomas Scott and were some of the hogs that had been running upon the range near his home. When the witnesses met the appellant they stopped and talked to him. One of the witnesses asked him to whom the hogs belonged and he replied that “he thought they were Jasper Crow’s.”

One of these witnesses described the appellant’s action as follows:

“Q. How far would you say that Mr. Hartley had been driving these hog’s when you first met him? A. I just saw him driving- them. He was walking along behind the hogs, and just as I came up the hogs turned out to the side of the road, and he walked straight ahead. ’ ’

The next morning Mr. Scott, the owner of the hogs, 'came to the place where the witnesses had met the appellant and there found four of the hogs within one-hundred yards of that point. Several witnesses testified that the hogs were stiff and sore and had the appearance of having been driven' a considerable distance. Two of the witnesses testified that they were able to track the hogs for a distance of about four miles up to this point; that during this distance of four miles they noticed that the tracks of the hogs were followed by the tracks of a man, and that the tracks- appeared to have been made' within the last twenty-four hours; that they noticed that at places where the tracks of the hogs left the road the tracks of the man also left the road.

The evidence upon the part of the appellant tends' to establish the following facts:

Appellant testifying in his own behalf stated that he met the two witnesses on the road on Saturday afternoon, October 13, 1917; that one of the witnesses asked him to whom the hogs belonged and he stated that he thought they belonged to Mr. Crow. Appellant further testified that he never got closer than within twenty steps of the hogs at any time, and that he first saw the hogs as they came across the road behind him; that the place where he met the two witnesses on the road was about three quarters of a mile from his home, and that after talking to the men he went to his home where he stayed all night. That he left his home Sunday morning about nine o ’clock to look for some of his hogs over in Mr. Crow’s field.

•There was other evidence tending to show that appellant reached home about sundown Saturday afternoon, October 18, 1917, and stayed at home all night, and that he did not drive -any hogs home with him.

Appellant’s son testified that appellant worked at home Saturday morning, October 13, 1917, until about noon. That -his father owned two mules and a pony, all of which were in use by members of the family other than appellant, on Saturday, October 13, 1917.

The State in rebuttal offered three witnesses who testified that the appellant’s reputation for truth and veracity in that neighborhood was bad.

The only point urged by appellant as ground for reversal is that the evidence is. insufficient to support the verdict.

In support of this contention appellant cites State. v. Lee, 272 Mo. 121, and State v. Counts, 234 Mo. 580.

"We are unable to agree with appellant’s contention. The facts of the present case, as will appear from a mere reading of the facts of the respective eases, clearly distinguish it from the cases cited. All the facts and circumstances shown by the record in the present case have been fully stated in the foregoing statement, and repetition of same is here unnecessary.

The facts indicating guilt in the present, case are even stronger than were the facts held in judgment in the recent case of State v. Nave, 273 Mo. 366, wherein a conviction for stealing stock from the range was upheld.

.After a careful review of all the facts and circumstances shown by tbe present record we have no hesitancy in saying that the evidence was sufficient to make a case for the jury. Under such circumstances we are not warranted in interfering with the verdict rendered.

The judgment is affirmed.

All coAcur.


author: WHITE, C,

text:
    MILAN BANK, Appellant, v. HENRY RICHMOND et al.
    Division Two,
    December 4, 1919.
    1. FRAUDULENT CONVEYANCE: Creditor Who Shares in Proceeds. A judgment creditor who shares in the proceeds of the sale of land cannot avoid the sale as being in fraud of his rights.
    2. -: -: Attachment. Defendant was surety on two notes held by plaintiff, one for $7000 and the other for $3280, and was the owner of 280 acres of land. Plaintiff obtained judgment on the $3,280 note, and defendant sold the land for a fair value and paid the amount of the judgment to the circuit clerk, who turned it over to plaintiff, and the balance of the purchase money was paid to defendant. Thereafter, and within a few days, plaintiff brought suit on the $7000 note, and the land was attached, on the ground that the sale was in fraud of creditors. Held, that plaintiff, by accepting a part of the proceeds of the sale in satisfaction of its existing judgment, which was a first lien on the land, is in no position to question the validity of the sale, or to assert that it was fraudulently made, nor can it have its judgment on the $7000 note made a lien on the land. ' •
    3. -: Ratification: Estoppel. Where a judgment creditor has collected a judgment on a certain note from a sale of the debtor’s land, he cannot cause the land to be resold to satisfy another judgment on another note, on the ground that the first sale was fraudulent and invalid. When he saw the title pass to the purchaser and took a part of the proceeds in satisfaction of his existing judgment, he elected to ratify the sale. And whether the applicable principle is denominated estoppel or ratification, the result is the same.
    Appeal from Sullivan Circuit Court. — Hon. Fred Lamb, Judge.

      Afeirmeb.

      J. B. Painter and E.. B. Fields for appellant.
    (1) Every conveyance of real estate to hinder or defraud creditors either prior or subsequent is clearly and utterly void. R. S. 1909, sec. 2881. (2) It has been held sound doctrine that actual (as contradistinguished from constructive) fraud participated in by both grantor and grantee, will vitiate a conveyance as to subsequent as Avell as to existing creditors. Cole v. Cole, 231 Mo. 260'.. (3) Fraud is rarely ever susceptible of positive proof. Its vermiculations are chiefly traceable by covered tracks and studious concealments. It is not to be presumed; but anything which satisfies the mind and conscience of its existence is sufficient. Massey v. Young, 73 Mo. 260; Burgert v. Borchert, 59 Mo. 80; State to use v. Estel, 6 Mo. App. 6; Grosohke v. Bordenheimer, 15 Mo. App. 353; Frederick v. Allgaier, 88 Mo. 598; Gordon v. Ismay, 55- Mo. App. 322; Martin v. Estes, 132 Mo. 402; HoAvard v. Zweigart, 197 S. W. 46. (4) Want of consideration, or insufficiency of consideration for a sale of land or other property, by a debtor is always an element of fraud. Childers v. Pickinpaugh, 219 Mo. 376; Bank of Boonville v. Vollrath, 135 Mo. App. 63; Jones v. Hogan, 135 Mo. App. 347, 211 Mo. 45; Kennedy, Admr. v. Duncan;, 157 Mo'. App. 212; Johnson v. Mason, 178 Mo. App.. • 109; lionberger v. Baker, 88 Mo. 447; Gentry- v. Field, 143 Mo. 399. (5) A sale by an insolvent debtor not to pay his debts but to turn his seizable property into cash or notes that may be easily withdraAvn from the reach of his creditors, if the purchaser had knowledge of such proposition, will be set aside. First National Bank v. Fry, 216 Mo. 24. (6) KnoAvledge of circumstances which would place an ordinary prudent man on inquiry may authorize the Jury to find that the purchaser had knowledge that the property Avas sold in fraud of creditors. Johnson v. Mason, 178 Mo. App. 109; Bank of Commerce v. Brunswick Tobacco Co., 155 Mo. 602. (7) Persons who having means of inquiring knowledge of fraud shut their eyes to the incriminating circumstances for the purpose of obtaining) advantage through the fraudulent acts, under the plea that they had no knowledge thereof, are chargeable with fraud. Yeney v. Furth, 171 Mo. App. 678. (8) Where both the grantor and grantee of land intend to defraud the creditors of the grantor the conveyance should be set aside regardless of the adequacy of the consideration. Aull v. Galgin, 234 Mo. 171; Burgert v. Borchert, 59 Mo. 80-; McDonal v. Hoover, 142 Mo. 484.

      D\ M. Wilson for respondent.
    (1) He who comes into equity must come with clean hands. Modern Horse Shoe Club- v. Stewart, 242, Mo. 421; Robinson v. Siple, 129 Mo. 208; Jarrett v. Morton, 44 Mo. 275. And this doctrine may be invoked by the appellate court on its own motion. Creamer v. Bivert, 214 Mo. 485. Morris paid the circuit clerk $3400.77. The clerk retained the costs (some $40'), and paid the rest, say $3360-, to the Milan Bank, and its attorneys satisfied the judgment rendered fin the suit on the $3280', on the- margin of the record. This money was part of the purchase price paid by Morris for the 280 acres, as the bank well knew. It accepted the money, thus recognizing the legality of the sale by Henry Richmond to Morris, and then, retaining the money, and never even offering to pay it back to Morris, brings this suit to set, aside that very deed on the ground of ¡fraud. (2) However dear Henry Richmond’s fraud may be, the conveyance to Morris cannot be declared fraudulent unless Morris knew of Richmond’s intent to defraud the bank and participated in it. Ryan v. Young, 79 Mo. 30; Bank v. Worthington, 145 Mo: 91; Dougherty v. Cooper, 77 Mo. 528.
   WHITE, C,

In the Circuit Court of Q-rundy County, September 29', 19-13,, the plaintiff in this ease recovered judgment against defendant Henry Richmond in the sum of $12,999168, the amount of a note for seven thousand dollars, executed September 14, 1905, and interest. On March 26, 1914, plaintiff filed his petition in this case in the Circuit Court of Sullivan County for the purpose of enforcing the payment of said judgment against two hundred and eighty acres of land in Sullivan County, formerly owned by the defendant Richmond and conveyed by him to defendant Morris, and by defendant Morris conveyed to defendant Meeks, it is claimed in fraud of the plaintiff. The cause was tried and judgment rendered September 11, 1915', in favor of defendants, and plaintiff appealed to this ■ court.

The salient facts leading up to the filing of the present suit are as follows:

On September 14, 1905, W. H. Richmond, son of defendant Henry Richmond, was indebted to the Milan Bank, plaintiff herein, on two notes, one for seven thousand dollars and one for three thousand two hundred and eighty dollars, with the defendant Henry Richmond as his surety; other persons also were sureties on the seven-thousand-dollar note. The incidents- connected with the placing of this indebtedness are unimportant for our purpose here. Soon afterwards suit was brought on the three-thousand-two-hundred- and-eighty-dollar note and judgment obtained against the defendant Henry Richmond, his son having fled the country at the time, it appears a fugitive from justice. September 20, 1905, six days after the notes were signed, an attachment suit was brought by the plaintiff bank on the seven thousand-dollar note. Four hundred acres of land, including the land in controversy here, was attached; also the land of other defendants, sureties on the note. On January 3, 1906, this attachment suit was- dismissed by the plaintiff. On the sixteenth day of January another attachment suit was brought on the same note and the same land was attached.

On the eleventh day of January, 1906, eight days after the dismissal of the first attachment suit, and five days before the second was brought, the defendant Henry Richmond sold the two hundred and eighty acres of land in controversy to defendant Morris for twenty dollars per acre, the total price amounting to five thousand six-hundred dollars, which was paid in cash and conveyance was made to Morris. Something like a year later Morris sold and conveyed the land to defendant Meeks for seven thousand dollars.

The second attachment suit was sent on change of venue to Macon County, where it was tried and judgment rendered in favor of the defendant Richmond. The case was appealed to this court, was reversed and remanded and is reported in 235 Mo. 532.

That case was again tried in the Macon County Circuit Court, January 13', 1912, and at the close of the defendant’s evidence the plaintiff took a nonsuit and the attachment was dissolved. On the same, day a third suit on the same note was brought in the Sullivan County Circuit Court, and the same four hundred acres of land were attached. This was taken on change of venue to .Grundy County. There a peculiar proceeding was had. One of the sureties on the note, Amon Richmond, had been adjudged insane and was represented by defendant in the suit by a guardian. On motion of the guardian he was granted a separate trial. The trial proceeded against the defendant Henry Richmond, and judgment was rendered September 29', 1913, as stated.

In order to support its position that a fraudulent purpose attended the sale of Richmond’s property, of which defendants Mforris and Meeks had notice, plaintiff offered evidence attempting to show that when the conveyance b3^ Richmond to Morris "was made, eight days after the first attachment' suit was dismissed and five da3^s before the second was brought, Morris knew of the existence of the seven-thousand-dollar note and of the suit on it; that about the same time, Richmond sold the remainder of the land, a hundred and twenty acres, to his son Jesse Richmond; that he sold his personal property, including sheep and cattle, to other persons at the same time, and that Morris knew he was making disposition of his other property. It was further shown that the defendant Richmond, of the proceeds if, the land, gave his wife nearly two thousand two hundred dollars, and gave his daughter various sums of money.

It was also shown by appellant that Morris was not a land buyer. He was seventy years old, too old to farm; that the trade was suggested to him and accepted by him on very brief notice, without looking at the land. Other facts of that character were proven to indicate 'the improbability of his caring to purchase the farm on his own account. He borrowed thel entirle fifty-six hundred dollars to pay for the land from the First National Bank. One Ike Guinn, president of the bank, and one Johnson, a saloonkeeper, who was a director of the bank, were sureties on his note and there seemed to be an effort on thé part of plaintiff to connect the officers of the bank with the deal.

' On the other hand, the defendant Morris testified that he was worth about eight thousand dollars at the time; that he had two thousand dollars stock in'the First National Bank, and about eight hundred dollars in cash; so that the loaning of that amount of money to him was not so extraordinary.

Evidence also 'was offered by plaintiff to show that the land, two hundred and eighty acres, was worth from thirty to forty dollars an acre. Eight witnesses swore to values varying between those sums; all or nearly all of whom, however, had some connection with the plaintiff bank.

Eleven witnesses, sworn on behalf of defendant, put the value of the land at from seventeen to twenty-five dollars per acre, a majority of them placing it at twenty dollars per acre, or at from twenty to twenty-five dollars an acre.

Appellant showed that the seven-thousand-dollar note was not due at the time the first suit was brought on it, nor at the time it was dismissed on the third day of January, 1906’; and attempted to show that Morris knew* it at the time, he bought, and knew that the second suit was instituted the day after the note fell due.

Morris testified that he didn’t know that the suit on the seven-thousand-dollar note was dismissed because it wasn’t due; that he had been over the land a few times a good while ago; that when the trade was first suggested to him he said he would give twenty dollars an acre for it, provided he could get the money. It was then that Johnson and Guinn agreed to see that he got the money and went on his note at the bank. He also stated that he would buy if it showed up all right. He knew there was a judgment for three thousand, two hundred and eighty dollars against the land in favor of the Milan Bank, which would have to be paid, and he had seen in the papers that a suit brought by the bank against Richmond had been dismissed “with leave to draw the note.” He consulted an attorney before closing the deal and inquired whether Richmond could dispose of his property without being hampered in any way. He was told by his attorney who examined the record -that it was all right. He explained that he did not understand the land had been attached. He only knew a suit had been brought and had heard that a suit was dismissed. His attorney said something to the effect that the suit might be instituted again, It was shown by plaintiff that when Meeks bought the land from Morris he took a bond from Morris to protect his title. This, however, was after the land was attached in the second suit and that suit was then pending.

When the trade was closed between Morris and Richmond, Morris drew his check for three thousand, four hundred dollars and seventy-seven cents, payable' to the circuit clerk, in payment of the judgment and interest which the Milan Bank held against Richmond and gave his check for the balance, two thousand, one hundred and" ninety-nine dollars and twenty-three cents, to Richmond. The clerk retained the costs out of the amount paid to him,, about forty dollars, and paid the balance to the hank.

The plaintiff’s case is made out, so far as Morris is concerned, upon the testimony of Morris. His disposition was taken February 6, 1906, in the case of Milan Bank v. Richmond, probably when that suit was first brought; the plaintiff offered that deposition in evidence. His testimony given on a trial of the case of Milan Bank v. Henry Richmond, September 17, 1907, was also read in evidence by the plaintiff. His deposition was taken in the present case April 22, 1915,- and that deposition was offered in evidence by the plaintiff. In each of these statements, where Morris testified at wide intervals, extending from 1906, to 1915, he told substantially the same story and made substantially the same explanations in regard to the transaction. The three statements differ from each other only in unimportant details and in some points of recollection as to sequence of events of matters not important. It seems from his testimony that he was served with a garnishment after the second attachment suit was brought.. After he acquired the land he says he looked* into the matter further and learned most of what he knew about Richmond’s condition. The evidence tends to show that he did not know Richmond was insolvent at the time he bought the land from him, nor that Richmond was giving property away to his wife and son.

The plaintiff has placed itself in a position such that it cannot now question the validity of the sale of the property by Richmond to Morris. "When the sale was made the plaintiff hank received of the purchase money three thousand four hundred dollars — more than three-fifths of the total purchase price. It is not contended anywhere that the officers of the bank did not know exactly where the purchase money came from. The weight of the evidence supported a finding that the land was sold for its full value. The plaintiff’s judgment was a first lien on the land. The conveyance by Richmond could not be made so as to invest Morris with title without the payment of that judgment. The purchase money was paid through the clerk of! the court, just as it would have been if the plaintiff hank had caused the sale to be made under execution.- That is to say, the payment of the plaintiff’s judgment was in effect a forced payment. The entire disposition of the proceeds was exactly the same as if the plaintiff had caused execution to be levied and had the land sold, because in that case the surplus would have been paid to Richmond, defendant, as it was paid to him, Three days after receiving the proceeds of that sale the bank brought its suit by attachment, on the ground that the sale was fraudulent. Subsequent suits, including the present one, proceeded upon the same theory. Thus plaintiff attempts to avoid a sale of which it obtained the proceeds. It will be noted that the plaintiff bank by its petition here seeks to have its judgment, twelve thousand dollars and over, made a lien against this land. The amount is more than enough' to absord the entire present value of the land. It appears also that Morris, the purchaser, was served with a garnishment in that proceeding-, probably to reach the surplus proceeds which he paid to Richmond. This is not clear in the record, but it is inferable from what does appear.

The principle applicable to tins is sometimes referred to as estoppel and is sometimes called ratification.

“Where one having- the right to accept or reject a transaction takes and retains benefits thereunder, he becomes bound by the transaction ancL# cannot avoid its obligation or effect by taking a position inconsistent therewith.” [16 Cyc. 787; 9 C. J. 1198-1199.]

It was said by this court in the case of Austin v. Loring, 63 Mo. 19, l. c. 22:

“No person will be allowed to adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit. When those who are ■ entitled to avoid a sale adopt and ratify it, equity will estop them ¡from afterwards setting it aside.”

That was said where a defendant in execution, knowing of a defect in the service on him, stood by and permitted his land to be sold in satisfaction of his debt and demanded and received the surplus proceeds. “By his action he ratified the sale,” and estopped himself from, laying any claim to the land.

In the case of Chase v. Williams, 74 Mo. 429, suit was brought for the purpose of setting aside a sale under a deed of trust and redeeming the property on the ground that the sheriff, acting as trustee, had no authority to sell. The circuit court found the issue in favor of the defendant, and plaintiff appealed, but in the meantime procured an order for the surplus proceeds of the sale to be paid to them. It was held on appeal that, by finding the motion and procuring an order to have the proceeds of the sale paid, the plaintiff had ratified the sale and therefore would not be heard on appeal to question its validity. [74 Mo. l. c. 437.]

Boogher v. Frazier, 99 Mo. 32,5, l. c. 330, is where a deed of trust securing three notes was foreclosed by sale at the instance of the owner of two of the notes. The owner of the third note sued the trustee, the cestui que trust, and the purchaser at the trustee’s sale for the proceeds of the sale and recovered judgment against them for the amount-of his debt. Having failed to collect all of his judgment he brought suit in which he claimed that the sale was void and passed no title. He was estopped to deny the validity of the trustee’s sale as against the purchaser.- That case is very similar in principle to the present case. Here the plaintiff had its security (a judgment lien) on the land for the greater part of the land’s value; the land was sold for its full value and plaintiff obtained full payment of its judgment out of the proceeds. It could not, therefore, question the validity of the sale as against the purchaser of the land. Having collected one judgment from a sale of the land it could not cause its resale to satisfy another judgment .on the ground that the first sale was invalid.

Where tenants in common on a partition sale receive the proceeds due them' as partitioners, they cannot afterwards question the validity of the sale. [Hector v. Mann, 225 Mo. l. c. 245-48.] See, also, as pertinent to the point under consideration, Proctor v. Nance, 220 Mo. 104, holding that where a landowner takes the surplus money arising from the sale of his land for taxes he ratifies the sale and is estopped to deny its validity (l. c. 115). To the same effect in principle are Lawson v. Cunningham, 204 S. W. 1100, l. c. 1106; Sebree v. Cassville & Western Ry. Co., 212 S. W. 11, l. c. 16; Railroad v. Bridge Co., 215 Mo. 286, l. c. 296s; Nanson v. Jacob, 93 Mo. 331, l. c. 346; State ex rel. v. Citizens Bank, 274 Mo. l. c. 73; Henderson v. Koenig, 192 Mo. l. c. 716; Platt v. Francis, 247 Mo. l. c. 310; Hayes v. Manning, 263 Mo. l. c. 46.

At the time of the sale the bank had a right to bring its attachment suit and seek to subject the equity of Richmond to the discharge of its other note. It didn’t do that then but stood by and saw the title pass and took the first proceeds of the sale in satisfaction of its judgment; that is-, it elected to ratify the sale.

With this- view of the case it is unnecessary to consider the other propositions presented in the briefs. The judgment is affirmed.

Railey and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion -of the court.

All of the judges concur.


author: RAILEY, C.

text:
    HUNTINGTON REAL ESTATE COMPANY v. EDWIN MEGAREE, Trustee, et al.; ELIZABETH GRACE et al., Appellants.
    Division Two,
    December 4, 1919.
    1. TRUSTEE: Active Trust: Legal Title. The trustee oí an active trust, with power to convey or to terminate the trust, created by will, is vested with the legal title to the lands by it devised to him tor the use and benefit of designated persons.
    2. WILL: Vested Trust Estate: Remainder: Devise to Children and Heirs After Death. The will devised testator’s property to a trustee for the benefit of certain children and declared that "in case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.” At the time of testator’s death all his children were living. Held, that said provision of the will became inoperative as to such “heirs,” the rule being that, in the absence of a contrary provision, the title vests upon testator’s death; and as the will gave the trustee power to turn over the property' to the children at any time after testator’s death, no title vested in the heirs of such children, but the equitable title, and not simply a life estate, vested in the children named, and ho remainder in their heirs.
    3. -: -: -: -: Unambiguous Words. A devise to a trustee for use of children will not be cut down to an equitable life estate, with an equitable remainder in their heirs, unless the language used clearly indicates that such is the testator’s intention.
    4. LIMITATIONS: Trust Estate. Adverse possession under color of title for a period of ten years vests the fee simple title of land in the occupant; and the rule applies against the trustee, in whom the legal title was vested by will, and against the beneficiaries of the trust fund, who were vested with the equitable title.
    Appeal from St. Louis City Circuit Court. — lion. William Kinsey, Judge.
    Affirmed.

      Irvin V. Barth for appellants.
    . ' Appellants, grandchildren of testator, who died in 1882, cannot be precluded by the Statute of Limitations through adverse possession of respondent’s predecessors in title beginning in 1800, because: (1) Under the will appellants were remaindermen after a life estate. Where property is left to children, and in case of their death, the share to go “to the heirs at law” of any deceased child, an estate for life is> created in the children and a remainder in the grandchildren. Bradley v. Goff, 243 Mo. 95. Courts will follow the manifest purpose and intent of a testament. Even though the first taker has a power of disposal, it is not inconsistent with the creation of a life estate and remainder over. Gibson v. Gibson, 239 Mo. 490; Schneider v.' Kloepple, 270 Mo. 389; Freeman v. Maxwell, 262 Mo. 13; Trigg v. Trigg, 192 S. W. 1014. It follows that, being remaindermen, they are not barred by the Statute of Limitations. Armor v. Frey, 253 Mo. 474; Hemden v. Yates, 194 S. W. 49. (2) The interposition of the trustee, under the terms of the will, does not alter the case upon the theory that the trustee represented the remainder-men as well as the life tenants. This for the reasons: (a) The trustee did not take a fee-simple title. A trustee will take “exactly that quantity of interest, whatever it may be, which the purpose of the trust and its proper execution may require and no more.” Young v. Hyde, 255 Mo. 509. Here Donovan’s duties as trustee for the life tenants consisted essentially in the handling of “income” or “sums” of money, (b) Assuming that the “purposes of the trust and its proper execution” required the fee in the trustee, nevertheless the trust is active as to the life tenants only. As to the remaindei’men the t'rpst is purely passive and consequently upon the termination of the life estate the real estate “automatically vests in fee in the remaindermen by force of the Statute of Uses.” De Lashmutt v. Teetor, 261, Mo. 440. Here Donovan owed no duty to the remaindermen ‘ ‘ other than to turn' over the property to them upon the extinguishment of the equitable life estate.” Accordingly, the trustee could in no sense be said to represent the remaindermen and “had at no time any power to bind the remaindermen or their title in any way” or to bar their estate by virtue of the operation of the Statute of Limitations. De Lashmutt v. Teetor, 261 Mo. 412; Luquire v. Lee, 121 Ga. 624; Perry, “Trusts & Trustees” (6 Ed.), sec. 320, p. 540 ; 39 Cyc. 212.

      Rodgers & Koerner for respondent.
    (1) Adverse possession under color of title for a period of ten years vests title in fee simple. R. S. 1909, see. 1879 ; Franklin.v. Cunningham, 187 Mo. 196. Title thus acquired can be quieted in a proceeding of this character. McRee v. ,Gardner, 131 Mo. 606. (2) Appellants (testator’s grandchildren, unborn at the time of his death) took nothing under his will. ‘ The last clause of said will, implying as it does the death of testator’s children to be a contingent event, must be construed as applying only in case any of said children should die during the testator’s lifetime. Howard v. Howard. 184 S. W. 994; 30 Ami. & Eng. Ency. Law (2 Ed.), 708; McClellan v. Mackenzie, 126 Fed. 701; Cross-man v. Field, 119 Mass. 172.. Thus construed the will vests the trustee with the legal title in fee simple, and testator’s children with the equitable title in fee. R. S. 1909, sec. 579. (3) Where a certain estate is granted in plain language in one clause of a will, it cannot be lessened or cut down by a subsequent clause unless the language of such subsequent clause is as clear and unequivocal as the language of the first grant. Howard v. Howard. 184 S. W. 993. (4) The trustee under the will took the legal title in fee simple, (a) The estate of the trustee is measured by the extent of his nowers and duties. Ewing v. Shannahan, 113 Mo. 188; Perry on Trusts (6 Ed.), sec. 312, p. 531; 39 Cyc. 208, (b) All trusts must be executed by the trustee out of the estate in him vested. Perry‘on Trusts (6 Ed.), sec. 516, p. 536; Watson v. Pearson, 2 Exch. 592. (e) The power to invest in real estate and loans necessarily included the power of absolute disposition. Robinson v. Robinson, 105 Me. 73; Boston Savings Co. v. Mixter, 146 Mass. 104. The fact that this power was conferred upon the trustee is cogent evidence that it was the intention of the testator to clothe him with fee simple title. Ewing v. Shannahan, 113 Mo. 194; Corn-well v. Wulff, 148 Mo. 552; Garland v. Smith, 164 Mo. 1. (d)- The power given the trustee to turn over to the beneficiaries any part or all of the principal of the estate held for them in trust, conclusively shows that he was vested with fee simple title. Packard v. Marshall, 138 Mass. 301; Boston Savings Co. v. Mixter, 146 Mass. 100'; Appel v. Childress, 53 Tex. App. 607. (5) The trustee being barred by adverse possession, all of the beneficiaries are barred. Walton v. Ketchum, 147 Mo. 219; Schiffman v. Schmidt, 154 Mo. 204. This is so whether the beneficiaries were entitled in possession or in remainder. Meeks' v. Olpherts, 100 U. S. 564; Waterman v. Hall, 220 111. 569; Chase v. Cartright, 53 Arb. 366; Darnall v. Adams, 13 B. Mon. 278. And whether or not, upon the termination of a preceding estate they were entitled to receive the legal estate in fee. Meeks v. Olpherts, 100' U. S. 564; Waterman v. Hall, 220 111. 569'; Cushman v. Coleman, 92 Ga. 772; 1 R. C. L., sec. 80, p. 754.
   RAILEY, C.

This is an action to quiet title under Section 2535, Revised Statutes 1909, to the following described real estate, to-wit: Lot in Block 40 of Wm. C. Christy’s Addition, in Block 938 of the.City of St. Louis, fronting 91 feet on the north line of Lucas Avenue, by a depth northwardly of 144 feet and 7-1-inches to an alley, bounded east by Twenty-first Street. Appellants and respondent deraign title from Ami T. Yarnell, the common source, who acquired the property in 1847,

Counsel for the respective parties in interest have adopted, in this court, the very commendable practice of stipulating as to the facts in lieu of the bill of exceptions, as follows:

“It is hereby stipulated and agreed by and between counsel that the following constitute the facts embodied in the bill of exceptions, duly filed in proper time in the above-entitled cause. This statement is for the purpose of shortening the record and presenting the matter as concisely as possible to the court for its consideration.
“Title to the property here involved was acquired by one Ann T. Yarnall by deed recorded May 3, 1847, in the Recorder’s Office in the City of St. Louis, in Book 14, at page 140'.
“In 1867 suit on a special tax bill, issued against said property for sewer improvements, was brought by the City of St. Louis to the use of the contractor, and said Ann T. Yarnall was made a party defendant and was served by publication. Judgment was rendered by default for $399.12, and the property was sold under execution to one Joseph M. O’Shea, the sheriff’s deed to said O’Shea being dated July 20, 1867.
“By deed dated September 8, 1869, said O’Shea conveyed said property to John P. Gibbons.
“In May, 1882, said John P. Gibbons died testate, his will being duly admitted to probate by the probate court in the City of St. Louis, and being recorded May 26, 1882, in Book 0, at page 216.
“ ‘After my debts and above bequests are paid, I give and bequeath all of my estate, real and personal and mixed, to Joseph T. Donovan, in trust, for my father, Thomas T. Gibbons, my mother, Bridget Gibbons, and my beloved children, viz.: Marne Eugenia Gibbons, D'avid Williami Gibbons, John T. Gibbons and Joseph Gibbons. My father. and mother having together a child’s share in said- trust estate. The said Joseph T. Donovan shall invest the funds of said trust estate either in improved real estate in City of St. Louis or in loans on real estate situated either in the City or County of St. Louis. One-fifth of the income from said trust estate shall be paid annually to each child or if it be a minor, for or on account of its support, clothing and maintenance, or to the said minor as my said trustee may think proper.
“ ‘One-fifth of the income from said trust estate shall be paid to my father during his natural life, and upon his death to my mother. The said trustee may, however, if he thinks proper, pay to either of my children or to my father or mother, any part or all of the sum held by him in trust for such child or parent. All sums in excess of the income paid shall be charged as an advance of the principal to the one receiving same and the income from such share shall be reduced in proportion to the reduction of the principal.
“ ‘After the death of my father and mother the share then held in trust for them shall thereafter be held in trust for my sister, Lizzie, if she is then living, but if she is dead, it shall thereafter be held in trust for my children.
“ ‘After the death of my sister, Lizzie, if she shall survive both my parents, the funds then held, in trust, for her shall thereafter be held, in trust, for my said children.
“ ‘In case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.’
“The inventory of the estate of the said John P. Gibbons was offered in evidence and the property here involved is not listed therein.
“The said John F. Gibbons left him surviving his father, Thomas T. Gibbons; his mother, Bridget Gibbons ; his sister, Elizabeth, or Lizzie Gibbons; his daughter, Marie Eugenia gibbons, and his three sons, David William Gibbons, John T. Gibbons and Joseph Gibbons; that the said Thomas • T. Gibbons, Bridget Gibbons and John T. Gibbons (son of said testator, John P. Gibbons) have died since the death of the said testator, the said. John T. Gibbons, son of said testator, dying, intestate, without issue and unmarried; that since the death of said John F. Gibbons, his said sister, Elizabeth, or Lizzie Gibbons, has married one W. B. Grace, and his said daughter, the said Marie Eugenia Gibbons, has married one .George R. Smith and has had six children by said marriage, viz., George R. Smith, Jr., Mary Eugenia Smith, Lucile Claire Smith, Gibbons Smith, Clarence Smith and Helen Smith; that said George R. Smith, Jr., has since married' defendant, Frances Smith; that said David William Gibbons has died intestate and unmarried since the death of the said testator, John F. Gibbons; that the said Joseph Gibbons (son of John F. Gibbons) is living and has never been married.
“In 1871 the said property was sold for general taxes and two collector’s deeds thereto were executed by the then Collector of the City of St. Louis, - C. ■Maguire, to one N. D. Allen. The first of said deeds was dated July 17, 1871, and the second July 18, 1871.
“In 1878 said property was again sold for general taxes and a collector’s deed conveying the same, dated November 29; 1878, was executed by M. A. Rosenblatt, the then Collector of the City of St. Louis, to the said N. D. Allen.
“In 1883 it was apparently thought that the last above mentioned collector’s deed was defective, and in order to correct the same another deed dated January 17, 1.883, was executed by N. C. Hudson, the then Collector of the City of St. Louis, to thé said N. D. Allen.
“Said N. D. Allen and wife conveyed the said property to W. D. Griswold by deed dated January 29, 1879. After the execution of the above'mentioned deed of correction from Hudson, Collector, to Allen, said N. D. Allen and wife executed another deed to said property dated January 22, 1883, again conveying said property to the said W. D. Griswold.
“Said W. D. Griswold and wife conveyed said property to Laura G. Smith by deed dated April 29, 1879.
“Said Laura Gr. Smith died testate in 1905', devising said property to her four sons, William D. Gr., Hamilton, Ralph L. and Huntington Smith.
“Said William D. G., Hamilton, Ralph L. and Huntington Smith, by deed dated May 20, 1911, conveyed said property to the Huntington Real Estate Company, plaintiff in this case. .'
“It further appears that at one time the City of St. Louis instituted a suit to widen what was then Twenty-second Street, but is now Twenty-first Street, and ‘ in the condemnation proceedings instituted for that purpose in the Land Commissioner’s Court of the County, now the City, of St. Louis, judgment for benefits was rendered against said property. Said judgment not being paid, execution was issued to the City Marshal of St. Louis and said property sold' under execution. The City of St. Louis was the purchaser at the sale and has heretofore conveyed whatever interest it acquired to plaintiff in this case.
“The evidence further shows that since January, 1890, plaintiff and its predecessors in title have been in open, notorious, continuous, adverse possession of the property in question, paying all taxes, making all repairs and, through their tenants, being in actual occupation. There is no evidence as to who was in possession of the premises prior to 1890, except such inference, if any, as may be drawn from the above admitted facts. It is agreed that the aforesaid tax deeds and instruments of conveyance did not in themselves pass indefeasible title to plaintiff and its predecessors in title, but gave color of title only. Plaintiff’s present claim to indefeasible fee-simple title is based upon the Statute of Limitation and the aforesaid adverse possession of said premises by it and its predecessors in title under color of title conferred by the tax deeds and other instruments of conveyance above mentioned.”

Appellants claim title through the will of John F. Gibbons, who died testate in 1882.

It is respondent’s contention: That appellants (grandchildren of said John F. Gibbons, and. all born since 'his decease) acquired no interest whatever under the will, and that the trustee being barred, the beneficiaries are barred. Appellants, in their answer, ask to be declared the owners of said property and pray for a partition . of same.

On October 11, 191,5, a decree was rendered in favor of respondent. In due time, appellants filed their motion for a new trial, which, was overruled and the cause duly appealed by them, to this court.

I. This is an action under Section 2535, Eevised Statutes 1909, to quiet title to the real estate heretofore described. Ann T. Yarnall is the common source of title. By virtue of a suit upon a special tax bill, instituted in 1867, title came in due course to John F. Gibbons in 1869. The latter died testate, in May, 1882, and his estate was duly administered in the Probate Court of the City of St. Louis, Missouri. The real estate in controversy was not inventoried as a part of said estate. Appellants claim title through the will of said John F. Gibbons. Eespondents claim title, by adverse possession, and the Statute of Limitations. This controversy arises over the construction of that portion of the will of said Gibbons set out in the foreS'°in§' agreed statement of facts. By virtue of the will, Donovan became the trustee of an active trust and, as such trustee, was vested with the legal title to the property in controversy. [Maxwell v. Growney, 213 S. W. 427; Lawson v. Cunningham, 275 Mo. l. c. 146, 204 S. W. 1100; Higbee v. Brockenbrough, 191 S. W. 994; Freeman v. Maxwell, 262 Mr. l. c. 24; Webb v. Hayden, 166 Mo. 39; Garland v. Smith, 164 Mo. 1; Simpson v. Erisner, 155 Mo. 157; Sckniffman v. Schmidt, 154 Mo. 204; Walton v. Ketchum, 147 Mo. 209; Pugh v. Hays, 113 Mo. l. c. 431-2; Ewing v. Shanriahan, 113 Mo. l. c. 193-4; Norcum v. D’Oench & Ringling, 17 Mo. 117-8; 1 Sanders on Uses M Trusts (Am. Ed.), 361; Hill on Trustees (Am. Ed.), 361-2; 1 Perry on Trusts (4 Ed.), secs. 30697; Boston Safe Deposit & Trust Co. v. Mixter, 146 Mass. 100; Upham v. Yarney, 15 N. H. 463; Cushman v. Coleman, 92 Ua. l. c. 774-5.]

We are cited by appellants to De Lashmutt v. Teetor, 261 Mo. 412; Luquire v. Lee, 121 Ga. 624, and Young v. Hyde, 255 Mo. 496, 512, as presenting a contrary view, but in neither of these cases did. the trustee have the power, as in the case at bar, to convey he entire trust estate to the beneficiaries at any time he may have deemed it advisable to do so.

When John P. Gibbons, the testator, died in 1882, his father, mother, sister, daughter and three sons, constituting those mentioned as beneficiaries in the will, were all living. The will provides, that: “The said trustee may, however, if he thinks proper, pay to either of my children or to my father or mother any part or all of the sum, held by him, in trust, for such child or parent.” By the very terms of the will, the trustee, upon the death of John P. Gibbons, could have terminated the trust, by turning- over to testator’s father and testator’s four children all the property belonging to the estate. In order- to do that, he must have been clothed with the legal title to the property, by the terms of the will.

Regardless of the law in other jurisdictions, we are satisfied with the rulings on this subject as announced in foregoing authorities. *

II. That portion of the will heretofore mentioned, concludes as follows:

“In case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.”

That is to say, by way of illustration, if testator’s daughter, Marie Eugenia Gibbons, was dead, at the time of testator’s death, and left two children, the latter would be entitled to tbe mother’s one-fifth equitable interest in said estate. In ojher words, the above clause could only become effective when the will became effective at the death of John F. Gibbons. At the time of the latter’s death, all of his children, as well as his father, mother and sister, were living. By reason of the foregoing’, said provision of the will, in respect to their heirs, became inoperative. [Howard v. Howard, 184 S. W. 993-4; Henderson v. Calhoun, 183 S. W. 585-6.]

In Howard v. Howard, supra, at page 993, the second clause of the will reads: “Second. I will and bequeath to Augustus Howard, one-fourth of all my real and personal property.” After making a similar provision for Peter G. Howard, in the fourth clause, the following appears: “It is also both my will and desire that Lenora E. Howard, Alpheus Howard and Peter G. Howard act as guardian (after my death) for Augustus Howard, giving to him every twelve months the interest or proceeds of his fourth of my estate. This is done to keep Augustus Howard from spending or squandering same, and should said Augustus Howard die then my will is that his share of my estate be legally divided amongst his heirs.” It was held that Howard took an absolute estate in fee, under the will, and a number of cases were cited in support of the above conclusion.

In Henderson v. Calhoun, 183 S. W. 584, we had under consideration clause 8 of the will of William Calhoun, of Johnson County, Missouri, who died in 1882, which reads as follows: “8th. After all expenses are paid the balance of my^ estate I bequeath to Margaret A. Calhoun, Sarah Jane Boyd, Robert A. Calhoun, and William Calhoun and their heirs to be equally divided among the same, and if any of them die without issue their portion to revert to their brothers and sisters and to share and share alike.” In construing the above clause, on page 586, we said: “The will of William Calhoun, taken as a whole, indicates upon its face an intention upon the part of said testator to dispose of all his property by the terms and provisions of said will. In the absence of any expressed intention to the contrary, it will be presumed that the testator intended that the provisions of paragraph 8 of the will aforesaid should become effective at his death. We therefore hold that Mrs. Henderson, upon the death of said uncle, William Calhoun, became the absolute owner of all the property she thereafter received from his estate. [Underhill on the Law of Wills, secs. 553 and 861; 2 Jarman on Wills (6 Ed.), p. 1357; 2 Washburn on Real Property (5 Ed.), sec. 1544; Eckle v. Ryland, 256 Mo. l. c. 449; Heady v. Hollinan, 251 Mo. l. c. 638; Tindall v. Tindall, 167 Mo. l. c. 225; Chew v. Keller, 100 Mo. l. c. 368; Martin v. Lachasse, 47 Mo. l. c. 593; Collier’s Will, 40 Mo. 287; Anderson v. Menefee, 174 S. W. (Tex. Civ. App.) l. c. 908; Rhode Island H. Trust Co. v. Noyes, 26 R. I. l. c. 334.] The rule upon this subject is ably stated in 2 Underhill on Law of Wills, sec. 861, as follows! Under the rule elsewhere explained, by which a modern will speaks as of the date of the death of the testator, every gift to a person who is alive at that date vests at once, in the absence of an expression of an intention, that the vesting shall be postponed. It will be presumed, when the testator does not expressly or by implication indicate that the vesting of the title to his bounty is to be postponed, that he means it to vest at once upon his death. His silence upon this point will raise a conclusive presumption that the interest in the gift is to vest as soon as the instrument by which it is given shall take effect, which, under the general rule, is at his death.’ The foregoing quotation from Underhill is well supported by the other authorities cited. Mrs. Henderson was therefore the absolute owner of the property in controversy at the time of her death."

The principle announced in the above cases is consistent with the power given the trustee to turn over the property at any time he might deem proper after 'testator’s death.

III. We are of the opinion that the legal title to the property in controversy, by the terms of the will, at the time of testator’s death.in 1882, was lodged in the trustee, Joseph T. Donovan; that at said date, testator’s father and mother, as well as his sister and the four children, were alive, and by the terms sa^ became the equitable owners in fee of the real estate aforesaid; that Mary Eugenia Smith (nee Gibbons) ¡was the equitable owner in fee, at said date, of the undivided one-fifth interest in said property, and that none of her children ever became remaindermen by the terms of said will, or acquired any interest therein, as heirs at law of their mother, who is still living and one of the appellants in this cause. There is nothing on the face of the will to indicate that the parties heretofore mentioned, who were alive when testator died, should not take the absolute equitable title. The language at the conclusion of the will is insufficient, under the existing laws of this State, to cut down the absolute equitable title aforesaid, appearing upon the face of the will, to an equitable estate in remainder, based upon the indefinite clause heretofore mentioned. [Middleton v. Dudding, 183 S. W. 443 et seq.; Howard v. Howard, 184 S. W. 993-4; Lemp v. Lemp, 264 Mo. 533; Coronet v. Coronet, 248 Mo. l. c. 234; Sevier v. Woodson, 205 Mo. l. c. 214.]

In Middleton v. Dudding, supra, the testator had conveyed to his wife an absolute fee simple title to the property by the express terms of the will. Testator and his wife were childless, and some two years. after the execution of the will he evidently- became dissatisfied with the arrangement which had been made, as the property would go to his wife’s relations, if she died without issue. He thereupon added a codicil to the original will, using the following language: “And I further state, should my wife Annie die without a will or having disposed of above property, one-half of property shall go to Bessie Watkins . . . and the other one-half to the children of said J. R. S. MeCune by his second wife.” The testator’s, wife made no disposition of the property conveyed by will or otherwise. It was claimed by the beneficiaries named in the codicil, that the legal effect of'the latter was to cut down the wife’s absolute estate, to a life estate, with power of sale and the right to dispose of same in her lifetime by a will. As shown upon page 456 of 183 S. W., the authorities cited by appellants herein, and many others, were urged in defense of the testator’s right to cut down the absolute estate by the codicil as above indicated. Bonn, J., in behalf of Court in Banc, upon page 444, in the majority opinion, said: “A devise of property in general terms, without descriptive or qualifying words denoting the character and extent of the estate conveyed, may be converted into a life estate by other words, expressions, or clauses necessarily implying that the. estate first granted is for the life only of the devisee, with a remainder thereafter to other persons. [Burnet v. Burnet, 244 Mo. l. c. 499: Walton v. Drumtra, 152 Mo. l. c. 507; Gibson v. Gibson, 239 Mo. l. c. 506.] This for the reason that in such devises the intention to create a life estate in the first taker may be shown either by-express terms or tantamount terms. In the latter instance the words employed must be unambiguous, and must exclude any other construction than an intention to create a life estate only in the first taker, with a limitation over a remainder thereafter. This is the settled law" of this State, and is the correlative of the immemorial rule that a devise of a fee in terms, or by words necessarily describing an absolute estate, cannot be annulled except by later language in the will, which expressly or by necessary implication, arising from words enuallv as clear and conclusive as those in PTantinff the !fee. cuts down the previous grant of the fee.” Woodson, .T., alone dissented.

The opinion in Gibson v. Gibson, 239 Mo. l. c. 506, so stronsrly relied on bv appellants, after reviewing many authorities, contains the following: ££Tn what we have above expressed we do not wish to be understood as holding that what would otherwise be a fee in the first taker can be cut down to a less estate by ambiguous words, or words not as clear and strong as those in the devise to the first taker. ’ ’

With -the opinion in the Middleton-Budding case confronting us, we would not feel justified in holding that any of testator’s grandchildren are equitable remaindermen, in the real estate aforesaid and, especially so, in view of the fact that the parent is still living. [Sec. 579, R. S. 1909.]

IV. Having heretofore reached the conclusion that Joseph T. Donovan, the trustee, became vested with the fee simple legal title to said estate, and the first takers the equitable fee simple title in said land, it remains to be determined whether respondent lias become the legal owner of said real estate by limitation and adverse possession. The agreed statement of facts, contains the following:

“The evidence further shows that since January, 1890 plaintiff and its predecessors in title have been In open, notorious, continuous, adverse possession of the property in question, paying all taxes, making all repairs, and, through their tenants, being in actual occupation. There is no evidence as to who was in possession of the premises prior to 1890, except such inference, if any, as may be drawn from the above admitted facts. It is agreed that the aforesaid tax deeds and instruments of conveyance did not in themselves pass indefeasible title to plaintiff and its predecessors in title, but gave color of title only. Plaintiff’s present claim to indefeasible fee simple title is based upon the Statute of Limitations, and the aforesaid adverse possession of said premises by it and its predecessors in title under color of title conferred by the tax deeds and other instruments of conveyance above mentioned.”

Adverse possession under color of title, as described in the stipulation, for a period of ten years, vested the fee simple title to said land in respondent. [Sec. 1879, R. S. 1909; King v. Theis, 272 Mo. l. c. 422-3; Johnson v. Calvert, 260 Mo. l. c. 456-7; Franklin v. Cunningham, 187 Mo. l. c. 196; Kirton v. Bull, 166 Mo. 622; Scannell v. Am. S. F. Co., 161 Mo. 606.]

V. The trustee, having been barred by limitation and adverse possession, all the beneficiaries mentioned in said will are likewise barred. [Ewing v. Shannahan, 113 Mo. 188, l. c. 201-2; Walton v. Ketchum, 147 Mo. l. c. 219; Schiffman v. Schmidt, 154 Mo. 204, l. c. 212; Meeks v. Olpherts, 100 U. S. l. c. 569; Waterman Hall v. Waterman, 220 Ill. l. c. 576-7; Cushman v. Coleman, 92 Ga. l. c. 774-5; 1 Ruling Case Law, sec. 80, p. 754, and cases cited.]

a. The trustee, so far as the record shows, made no effort to take possession of the land in controversy, although he held the legal title thereto. Nor does it appear that the first takers, who held the equitable fee simple title, ever requested the trustee to obtain possession of said property or to asse'rt title thereto. If the trusee does not perform his duty, the beneficiaries are not without a remedy in equity to require him to do so. [Norcum v. D'Oench & Ringling, 17 Mo. l. c. 118.] In this ease, both the trustee and beneficiaries stood by-and permitted plaintiff to acquire, by adverse possession, a good title to the land in question.

VI. We have endeavored to consider all the material questions presented in the record before us. The trial court found the issues in favor of respondent and entered its decree accordingly. The judgment thus rendered was for the right party, and is therefore affirmed.

White and Mosley, GO., concur.

PER CURIAM: — The foregoing opinion of Raikey, C., is hereby adopted as the opinion of the court.

All the judges concur.


author: MOZLEY, C.

text:
    THE STATE v. JAMES J. (alias SPOT) REAGAN, Appellant.
    Division Two,
    December 4, 1919.
    1. INSTRUCTION: Omission of Word Feloniously. The omission of the word “feloniously” from the instruction defining the crime of carrying concealed, weapons is not error. The word is necessary in the information for the purpose of classifying the offense as a felony, but it is not necessary to insert it in the instruction telling the jury that defendant may be convicted if they find he “unlawfully and' wrongfully and intentionally carried concealed about his person,” etc.
    2. -: Carrying Concealed Weapons: Intention to Conceal. Where the court has instructed the jury that in order to convict defendant they must find that he “unlawfully and wrongfully and intentionally carried concealed about his person a certain deadly and dangerous weapon,” it is not error, in the instruction advising them how intention could be proved, to fail to tell them that if they find defendant did not intend to carry the weapon concealed they should acquit him.
    3. VERDICT: Against Weight of Evidence. The weight of the evidence is a question for the jury, and where there is substantial evidence of defendant’s guilt the appellate court will not set aside their verdict on the ground that it is against the overwhelming weight of the evidence.
    4. -: Concealed Weapons: Right to Carry., The question of whether defendant, at the time a pistol was concealed on his person, was about to start on a trip to another state and therefore had a right under the statute (Sec. 4496, R. S. 1909) to carry it, is one for the jury to determine; and where it is submitted to them upon proper instructions, it is for them to say whether the evidence was sufficient to bring him within the statutory exception.
    Appeal from St. Louis City Circuit Court. — Hon. JoM W. Calhoun, Judge.
    Affirmed.

      T. J. Rowe and Thos. J. Rowe, Jr.., for appellant.
    (1) Instruction 2 is erroneous because the court should, have instructed the jury that if they believed from the evidence defendant did not intend to carry the weapon concealed, then they should acquit the defendant. (2) The evidence on behalf of the State proved that defendant did not intend to carry the revolver concealed. State v. Carter, 1,68 S. R. 681. (3) In most of the states it devolves upon the accused to show as a matter of defense that he comes within one of the exceptions created by the statute prohibiting the carrying of concealed weapons. But in Michigan it appears that the prosecution must prove that the defendant does not fall within one of the exceptions. People v. Pendleton, 79 Mich. 317. (4) . Instruction 1 is erroneous because the jury were instructed if they believed the defendant unlawfully and wrongfully and intentionally carried about his person a deadly weapon he was guilty of the offense charged in the information, and defendant could not be guilty of the offense charged in the information unless he feloniously carried about his person a deadly weapon. Again, said instruction is erroneous because it is on the whole case and defendant’s defense that he was about to start on a journey was entirely eliminated from the instruction.

      Frank W. McAllister, Attorney-General, Shrader P. Ilowell, Assistant Attorney-General, for respondent.
    (1) The court properly submitted to the jury the question as to whether the defendant intended to carry the weapon concealed about his person. State v. Miles, 124 Mo. App. 285; State v. Carter, 259' Mo. 360; State v. Hovis, 135 Mr. App. 547., (2) Instruction 1 is not erroneous because the word ‘‘feloniously” is not used therein. State, v. Reed, 140 Mo. • App. 253; State v. Cummings, 206 Mo. 623; State v. Rader, 262 Mo. 132; State v.' Baker, 264 Mo. 354; State v. Massey, 274 Mo. 589; State v. Burgess, 268 Mo. 415. (3) The evidence submitted on the trial is amply sufficient to sustain the verdict. State v. Miles, 124 Mo. App. 285; State v. Arnett, 258 Mo. 259; State v. Conceda, 250 Mo. 411.
   MOZLEY, C.

The defendant was informed against by the Circuit Attorney at the February term, 1918, of the Circuit Court of the City of St. Louis, upon a charge of having unlawfully and feloniously carried concealed about his person a dangerous and deadly weapon, to-wit, one revolving pistol, loaded with gunpowder and leaden ball, contrary to the statute and against the peace and dignity of the State. On May 27, 1918, the defendant was duly arraigned, in Judge Calhoun’s division of said court, and entered his plea to said charge of not guilty. Upon trial of said charge before a jury of twelve men, which occurred on the 10th day-of June, 1918, the defendant was convicted, and the jury returned the following verdict: “We, the jury in the above entitled cause, find the defendant guilty of carrying concealed weapons, as charged in the information, and assess his- punishment at six months in the city jail.” Motion for new trial was overruled, and the case is here on defendant’s appeal.

Defendant alleges reversible error as follows, to-wit: (a) Instructions one and two, given by the court are erroneous; (b) the verdict of the jury is against the overwhelming weight of the evidence; and (c) the overwhelming weight of the evidence tends to establish the fact at the time defendant was arrested and was carrying a revolver, he was about to start on a trip from the State of Missouri to the State of Kansas, and had a right, under Section 4496, Eevised Statutes 1909, to carry it.

The evidence on the part -of the State was that Andrew Stevenson and Dick Broeders, police officers doing duty as members of the “gun squad” which duty required them to search those suspected of carrying concealed, weapons, on February 26i, 1918, between 9':30; and 10 o’clock at night, at a saloon belonging to’ Yitz Weisman, searched defendant, and found concealed in the front pocket of his trousers a six-shot Colts revolver, with all of the chambers loaded, and thereupon arrested and confined him until bond was arranged for his subsequent appearance in the circuit court for trial. In that court it was conceded that defendant had the revolver and had it concealed when arrested, and the sainé concession is made at our bar.

On the part of defendant the testimony tended to show that he was intending to go that night to Pitts-burg, Kansas to buy horses and mules for the United States Government, and that he borrowed the gun at Baur’s saloon, which is located on Market between 13th and 14th Streets, and carried it about a block from there to a saloon run by Yitz Weisman, located on the corner of 14th and Chestnut Streets, and left it there and shortly thereafter returned and calle,d for the gun, got it and put it in his pocket, and while taking a drink at the bar was searched by the officers, with the result above stated. Defendant further stated that he intended to leave over the Missouri Pacific Railroad at 11:15> for Pittsburg, Kansas, but he did not make the trip until one week later.

All of these matters were, at his trial in the circuit court, submitted to a jury of twelve men, who found him guilty as charged in the information and assessed his punishment at six months in the city jail.

Motion for new trial proved without avail, and defendant is in this court on appeal.

I. The first assignment of error is that instructions one and two given by the court are erroneous. Number one, it is contended is radically prejudicial, because it charges the jury that defendant may be convicted if they find that he unlawfully and wrongfully and intentionally carried fconcealed about his person a certain deadly and dangerous weapon, etc. It will be noted that said instruction omits tlié use of the term “feloniously,” and this, is the crux of appellant’s complaint concerning it. We are unable to agree with this contention. In the case of State v. Cummings, 206 Mo. 613, l. c. 623, this court-, spealdng through FOX, P. J., ruled upon an identical contention as follows:

“This court has repeatedly held that instructions need not be as broad as the charge in the information or indictment, and it ivas not essential in the instructions of the court to use the term feloniously. If the acts of the defendant, as complained of in the information, were wilfully, knowingly, falsely and fraudulently done, the statute classifies the commission of such acts as a felony, and while it is essential ih charging'the offense in an information or indictment in order to classify the offense to charge that it was felonously done it is by no means essential that the term feloniously should be used in the instructions of the court to the jury.”

In the later cases of State v. Rader, 262 Mo. 117, l. c. 132, and State v. Massey, 271 Mo. 578, l. c. 589, the holding is the same as in the Cummings case, supra.

Under these authorities we conclude that it was not erroneous to omit from said instruction the term feloniously and accordingly rule the point against appellant.

II. The point is made that instruction numbered two is erroneous in not telling the jury if they found from the evidence defendant did not intend to carry the Aveapon concealed, then he should be acquitted.

The question of defendant’s intention to carry a revolver was submitted to the jury by instruction number one, by which they were required to find as an element of the offense that he intentionally carried it, and instruction number two merely advised _ .... , T, them how intention could be proven. It would not have been proper to have instructed the jury that if they found from the evidence defendant did not intend to carry the revolver concealed, because both .the affirmative and negative of his intention in carrying it is contained, as above noted, in instruction number one; in other words, it would have been impossible for the jury to have returned.a verdict of guilty without finding that the revolver was intentionally carried. Furthermore, we think there can be no serious controversy concerning defendant’s intention to carry the revolver concealed; he, and his learned counsel as well, admit that he carried it concealed, and manifestly he intended to so carry it; any other conclusion is too incredible for belief. We hold that instruction number two was well enough, and rule this point against appellant.

III. Points two and three may be disposed of under one head. The first of these asserts that the verdict of the jury is against the overwhelming weight of the evidence, and point three asserts that the overwhelming weight of the evidence tends to establish the facts that at the time defendant was arrested and was carrying a revolver, he was about to start on a trip from, the State of Missouri to the State of Kansas, and had a right under Section 44961, Revised Statutes 1909. to carry a revolver.

As to point two, asserting that the verdict is against the overwhelming weight of the- testimony, a jury question is presented, and where, as here, there was substantial evidence tending to prove the State’s contention and the verdict of guilty was approved by the trial court, we are not at liberty to disturb the result, and we rule the point against appellant.

As to point three, the question of whether áppellant was about to start on a trip- from Missouri to Kansas and thus bring himself' within the exception of Section 4496, Revised Statutes 1909, giving him the right to carry the revolver, was, likewise, a question for the jury to pass upon; that is, it was their province and duty under the instructions of the court to weigh the evidence upon the part of the State and upon the part of defendant, and determine whether, in their judgment, .it was sufficient to bring defendant within said exception. They found that it was not sufficient for that purpose, and we agree with their finding, and overrule the contention.

We think appellant has had a fair and impartial trial and that his conviction should be affirmed. It is so ordered.

Railey and White GO., concur.

PEE CURIAM: — The foregoing opinion of .Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.