text:
    CATHERINE H. PENDLETON et al. v. JOSEPH H. HUBBARD et al., Appellants.
    Division One,
    November 30, 1910.
    1. CAUSE OF ACTION: Held on Former Appeal to be Good Equitable Defense. Where it was held on a former appeal that the facts pleaded constituted a good equitable defense to an ejectment suit it will be held that the petition in a subsequent suit to quiet title, which sets up the same facts, states a cause of action.
    2. TRIAL BY JURY: Quieting Title. If on a former appeal it was held that the matters pleaded by defendants were of equitable cognizance, and in their subsequent suit to quiet title the defendants in that as plaintiffs in this set up the same facts as constituting their cause of action, it will be held that defendants in this were not entitled to a trial by jury.
    3. DECREE: Quieting Title: No Bill of Exceptions: Finding of Facts. Where there is no bill of exceptions it will be presumed on appeal that there was evidence upon which to base each finding of fact in the chancellor’s decree for plaintiffs.

      4. -: -: Harassing Suits: Clouding Title. Where the petition avers that plaintiffs and their grantees are being continually harassed by suits based on a stale title and that defendants are constantly making and putting of record deeds and contracts affecting and clouding the title, and the court finds in a suit to quiet title, that the defendants have no title, a decree, comporting with the petition, and decreeing that all interest and title conveyed by the instruments under which defendants’ claim have long since vested in plaintiffs or their grantors, does not go beyond the statute, but is proper.
    Appeal from Lafayette Circuit Court.- — Hon. Samuel Davis, Judge.
    Appikmed.

      Geo. H. English and M. D. Trefren for appellants.
    The petition does not state facts to constitute a cause of action. The court erred in refusing a jury trial. The decree is beyond the issues joined in the pleadings and is not justified by the facts set forth in the petition, answer and reply, and goes beyond the statute under which the suit is brought. Bu,rk v. Pence; 206 Mo. 315. If it is claimed that this is a suit under section 650; the plaintiffs must state how they acquired their title and it must be sufficient title. Burk v. Pence, 206 Mo. 115; Summit v. Realty Co., 208 Mo. 514.

      L. H. Waters and Cook & Gossett for respondents.
    (1) A possessory title is a positive and aggressive title, upon which affirmative relief can be prayed and. obtained in a suit to quiet title or other suit. Hubbard v. Slavens, 218 Mo. 619; McRee v. Gardner, 131 Mo. 599. (2) The court did not err in refusing a jury trial. The allegations of the petition are sufficient after pleading and judgment at least to constitute a good cause of action either as a bill to quiet title or as a petition to have the title adjudicated, determined and established under Sec. 650, R. S. 1899. As a bill to quiet title, clearly the defendants were not entitled to jury trial. As a petition under Sec. 650, the defendants, not being in possession, were not entitled to a jury trial. Hubbard v. Slavens, 218 Mo. 618; Stone v.. Perkins, 217 Mo. 601. (3) The record shows no exception by the defendants to the action of the court in overruling their motion for trial by jury. That motion is not a part of the record and the overruling of it without exception cannot be assigned as error. Hubbard v. Gates, 129 S. W. 1.
   GRAVES, J.

This case is here upon the record proper. As to the title to the lands involved it deals with facts and records perfectly familiar to this court. [Hubbard v. Slavens, 218 Mo. 598.] Plaintiffs are the widow and heirs-at-law of William K. Pendleton, and Dwight L. Pendleton, besides suing as an heir, further sues as a trustee under his father’s will. It is alleged that by reason of the will the legal title is vested in the trustee. By the petition it is charged that William K. Pendleton in his lifetime was seized of an indefeasible estate in fee to a certain fifty acres of land, now a part of Kansas City, Missouri, describing the same. That during his lifetime the said William K. Pendleton sold off portions of this tract and gave warranty deeds thereto. That since his death .his trustee, Dwight L., has conveyed other portions and given warranty deeds thereto, a part yet remaining unconveyed. The petition is one which seeks ,to- quiet title to the whole fifty acres and at great length recites in detail all of the alleged facts. It recites each and every conveyance from the deed by which Chester Hubbard acquired title. Joseph R. Hubbard and Ellen L. Jeffries are alleged to be the only heirs-at-law of Chester Hubbard, deceased. The prayer of the petition in a way is a resume of many of the pleaded facts, and reads: •

“Wherefore plaintiffs, on behalf of themselves and of all persons similarly situated, and of all persons claiming by, through or under William K. Pendleton, deceased, or by, through and under D. L. Pendleton, as trustee of the estate of William K. Pendleton, deceased, pray the court:
“ (a). To order and adjudge the power of attorney executed by Chester Hubbard and Mary R. Hubbard, his wife, to John W. Summers, on September 16, 1856, and recorded in the office of the recorder of deeds of Jackson county, Missouri, on October 16>, 1856, in Book Z at page 133, was. a good and sufficient instrument authorizing John W. Summers, to convey any and all property belonging to Chester Hubbard, including the lands hereinbefore specifically described as belonging to William K. Pendleton in his lifetime.
“(b). To order and adjudge that by reason of the mortgage and conveyance dated March 12., 1857, filed for record March 14, 1857, and recorded in the office of the recorder of deeds of Jackson county, Missouri, in Book Z at page 476, and again filed on March 7, 1859, in Book 30 at page 594, all of the right, title and interest of Chester Hubbard, if any, in and to the land hereinbefore specifically described as belonging to William K. Pendleton in his lifetime, vested in Joseph C. Ranson, and thereafter by mesne conveyances passed from Joseph C. Ranson to William K. Pendleton- and to those claiming by, through and under him.
“(c). That by the warranty deed dated September 22,1857, and filed for record in the office of the recorder of deeds in Jackson county, Missouri, on October 5, 1857, and recorded in Book 25 at page 500, all of the right, title and interest of Chester Hubbard in and to the land hereinbefore described as belonging to William • K. Pendleton in his lifetime, vested in Hezekiah H. King, and that by mesne conveyances such title has passed to and vested in William K. Pendleton and those claiming by, through and under him.
“(d). That by reason of all the matters, facts and circumstances set up and alleged in the foregoing bill of complaint, Chester Hubbard and the defendants’ claiming by, through and under him', be decreed and adjudged to be estopped and forever barred from setting up or claiming any right, title or interest in and to any portion of the property hereinbefore specifically described as belonging to William K. Pendleton in his lifetime, and that they may be restrained and enjoined from so doing.
“(e). Plaintiffs further pray that the title of themselves and of those claiming under William K. Pendleton as aforesaid, and under D. L. Pendleton as aforesaid, be decreed, established and adjudged to be the absolute and fee-simple title in and to. said lands and every part thereof as against defendants and all persons claiming by, through or under them, and that the same be forever quieted.
“(f). Plaintiffs pray that it be decreed by the court that, under and by virtue of the deed made in November, 1876', or November, 1877, as the case may be, by Mary R. Hubbard to the defendants herein, whatever interest Mary R. Hubbard may have had as a life tenant merged and vested in whatever right, title or interest the defendants may have had by way of remainder, and that by reason of this fact the Statute of Limitations in any event began to run either in 1876 or 1877, and that defendants have no right, title or interest in and to the property hereinbefore described as belonging to William K. Pendleton in his lifetime, including the property belonging to the plaintiffs.
“And plaintiffs further pray for such other and further relief as to the court may seem just and proper, and for costs.”

The facts pleaded in this petition cover all the facts pleaded in the equitable answer in the case of Hubbard v. Slavens, supra, and even more. A repetition of them here can thus be avoided by a reference to that case.

In addition to the facts pleaded in the equitable answer in the Slavens case, the present petition avers that the defendants are and have been constantly making and spreading of record deeds and contracts affecting the title to this tract of land. That suits were being continuously filed and a lis pendens filed in each of them. That the title of the plaintiffs and the grantees of William K. Pendleton and D. L. Pendleton, trustee, were thus being clouded. The prayer is as above set out. The petition is very voluminous, but by referring to the Hubbard-Slavens case, supra, its import can be fully gathered.

The answer was (1) a general denial, (2) express admissions as to many things pleaded, and an express denial of others. The answer, like the petition, is long, but the character thereof is as above indicated.

The reply was a general denial.

The judgment accords with the prayer of the plaintiffs’ petition, and defendants feeling themselves aggrieved thereby have appealed. For the points actually involved this sufficiently states the case.

I. The first assignment of error is that the petition does not state a cause of action. In Hubbard v. Slavens, 218 Mo. l. c. 617-621, we discussed the facts pleaded by way of an equitable answer, and held that the facts pleaded constituted a good equitable defense in an ejectment suit. Not only so but we sustained a judgment which decreed title in the defendant. The petition in the case at bar is stronger in its allegations of facts than the answer in the Slavens case. That it stated a, cause of action is fully settled by our ruling in the Slavens case, supra. This contention is therefore ruled against the defendants.

II. In the second place it is urged that the trial court erred in refusing to the defendants a trial by a jury. There is no bill of exceptions in the case. It is as stated in the statement purely one of the record proper. The record proper, as abstracted, does show that a motion for a trial by a jury was made and overruled. If this question is a matter of exception of course it is not here, because there is no bill of exceptions. But we need not stop to discuss this theory. In the Slavens case, supra, we held that the matters pleaded were subjects of equitable cognizance. [218 Mo. l. c. 617.] This is sufficient here. Upon the strength of our ruling in the Slavens case this claim of defendants is disallowed.

III. The third and last assignment'of error contained in the brief thus reads': ‘ ‘ Third, that the decree is beyond the issues joined in the pleadings and is not justified by the facts set forth in the petition, answer and reply, that this decree goes beyond the statute under which the suit is brought and may be taken advantage of by appeal.”

There is nothing in this point. The decree comports with the pleadings. It is fully authorized by the scope of the petition. There being no bill of exceptions presented, it is to be presumed that the trial court had evidence upon which to base each finding in the decree. If defendants had merit in their case, they should have presented the facts. Instead, they have chosen to rely upon antiquated ideas of pleading. When we said, as we did in the Slavens case, that the facts pleaded were cognizable in' equity, there was nothing left to the appeal in this case. The facts pleaded, and presumably proven, would tend to show that a great number of the subsequent grantees of Pendleton, and the Pendletons themselves, were being continually harassed on defendant’s alleged claim of a stale title. This, too, when it was disclosed as in the Slavens case that defendants ’ ancestor and his administrator had received the price of this land nearly a half century ago-. The decree nisi puts a quietus upon the inequitable conduct of defendants. It is right, in good conscience, and had it occurred sooner innocent parties might have been more fully protected.

Let the judgment he affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    HENRY C. REGISTER, Appellant, v. PRATHER ELDER and WILLIAM L. REGISTER.
    Division One,
    November 30, 1910.
    1. WILL: Curtesy Excluded: Devise to Trustee. A will which' devises land to a trustee, the income therefrom to he the sole and separate^ property of a married daughter, and in case of her husband’s death prior to her death then to her absolutely, and in case of her death prior to his, then to her children absolutely, bars the husband, upon her death leaving children surviving, of any right to curtesy in the land. The contingency upon which the title was to vest in her was that she 'survive her husband, and that contingency never happened, therefore the title never vested in her, and hence her husband has no curtesy therein.
    2. —■-: -: -: “Turned Over” In the Sense of Devise: Noscitur A Sociis. The will gave the land to a trustee and provided that in case of the death of a daughter he should use the income to support and educate her children until the youngest reached legal age, “at which time said real estate shall be turned over by said trustee to such child or children, share and share alike, to have and to hold unto them, their heirs and assigns forever.” Held, that little stress is to be attached to the-isolated words “turned over” taken by themselves, hut they are to be taken with the succeeding words with which they are associated, namely, “to have and to hold, unto them, their heirs and assigns forever,” and when so considered they are to he understood as vesting the fee-simple title in the children upon the happening of the named contingency, namely, the death of their mother, and as then terminating the trust.
    3. -: -: Life Estate in Wife. Curtesy cannot be carved out of a life estate in the wife, whether it he legal or equitable. So' that where the will gave the wife an equitable life estate, and provided tliat the tru'st should terminate and the . entire estate vest in her only in case she survived her husband, he can have no curtesy upon her death.
    Appeal from Buchanan Circuit Court. — Son. G. A. Mosman, Judge.
    Affirmed.

      James W. Boyd for appellant.
    (1) The husband’s right of curtesy adheres in and to the lands belonging to the deceased wife at the time of her death, whether she held the title to the lands in her own name, or whether the title was held in the name of a trustee for her use and benefit, if the other requisites exist; and in this case it is admitted that they did and do exist. Tremmel v. Kleiboldt, 75 Mo. 255; Tremmel v. Kleiboldt, 6 Mo. App. 549; Mc-Tigue v. McTigue, 11G Mo. 138; Kennedy v. Koopman, 166 Mo. 87; Myers v. ITandsborough, 202 Mo. 495; Donovan v. Boyd, 215' Mo. 149. (2) The right of curtesy is favored in law and the husband will not be deprived thereof by anything in the devise to his wife short of an explicit exclusion, or words- which are so clear and forceful as to leave no doubt as to the exclusion. Woodward v. Woodward, 148 Mo. 247; 4 Am. and Eng. Ency. Law, p. 465; McTigue v. McTigue, 116 Mo. 143; Kennedy v. Koopman, 166 Mo- 87; Soltan v. Soltan, 93 Mó. 307; McBreen v. McBreen, 154 Mo. 332; Cushing v. Blake, 30 N. J. Eq. 687. (3) A clause in a will based upon a contingency which never arose, and which can never arise, is void, or it lapses. Such a clause in a will cannot by any rule of law, or canon of construction, be held to affect in any wise lands plainly, expressly and clearly devised to a married woman. 1 Underhill on Wills (1900 Ed.), pp. 646-8. In this case, the testator, after devising these lands in suit to Leonard in trust for Mrs. Register, added three clauses, each based upon a contingency which never arose and never can arise.

      Charles F. Strop and Eugene Silverman for respondents.
    (1) The intention of the testator is to be gathered from the entire instrument. A life estate may be created by express words or by implication from the provisions of the will as a whole. Walton v. Drumtra, 152 Mo. 507; Cross v. Hoch, 149 Mo. 325; Walton v. Ketehum, 147 Mo. 209. (2) The will gave appellant’s deceased wife a life estate only and curtesy does not attach to a life estate. Spencer v. O’Neill, 100 Mo. 49; Phillips v. Laforge, 89 Mo. 72; Burris v. Page, 12 Mo. 359; Janney v. Sprigg, 48 Am. Dec. (Md.) 559; Adams v. Ross, 30 N. J. L. 508; Beecher v. Hicks, 7 Lea (Term.) 207; Alexander v. Mill, 7 ILeisk. (Tenn.) 81; Bigley v. Watson, 38 L. R. A. 679; 12 Cye. 1013; 4 Kent’s Com. 33. (3) The fact that appellant’s wife would have received the fee had she survived appellant does not enlarge her estate, that event not having occurred. “Nor does it change the character of a life estate so long as it remains such that it may upon the happening of a contingency become enlarged into- a fee.” 1 Washburn, Real Prop. (5 Ed.), p. 121; Grover v: Trueblood, 1 S. E. 918. Even a power of sale attached to a life estate will not enlarge the estate into a fee. Grace v. Perry, 197 Mo. 562; Russell v. Eu-banks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Greffet v. Willman, 114 Mo. 106; Evans v. Folks, 135 Mo. 397. (4) A life estate in realty is a proper subject for the creation of a trust. 28 Am. and Eng. Ency. Law (2 Ed.), 914; Speed v. Railroad, 163 Mo-. Ill; In re Chisholm, Fed. Cas. No. 2867; Nelson v. Davis, 35- Ind. 474; Zuver v. Lyons, 40 la. 510; Handy v. McKim, 64 Md. 560'; Lerned v. Saltonstall, 114 Mass. 407; Osborne v. Soley, 81 Pa. St. 312; Lindsey v. Eckels, 40 S. E. 23. (5) Since the wife of appellant took but a life estate there could be no curtesy. But even if there was doubt as to the nature of her estate (which respondent denies) yet the whole will shows a clear and unambiguous intention to exclude curtesy. No particular words are necessary to exclude curtesy. Any words which clearly show such intention are sufficient. Oases cited by appellant fully sustain this contention.
   LAMM, P. J.

Ejectment on formal pleadings. Cast below on a trial to the court, without a jury, plaintiff appeals. Defendants asked no instructions — plaintiff, one (refused) to the effect that, under the law, the pleadings and the agreed statement of facts, he was entitled to judgment.

In small compass, preserving the substance of an agreed statement of facts, the case made is this: Plaintiff is the father of defendant William L. — the latter being the only surviving child of plaintiff and his wife, Martha Jane. William L. is in possession of the land in dispute, viz., the southeast quarter of section 10 and the west half of the southwest quarter of section 11, all in township 56, range 35-, in Buchanan county, through his codefendant, Elder, as tenant. One John Montgomery died testate, seized of the land as owner, in June, 1903, leaving an only child, to-wit, said Martha Jane — his will disposing of the land. This will and its codicil were probated in common as well as solemn form. Martha Jane dying, thereafter the son, then aged 36' years, took possession, putting his right thereto upon the terms of his said grandfather’s will. Thereat plaintiff brought ejectment on the theory he was tenant by the curtesy as surviving husband of Martha Jane, and as such had the jus .possessions.

The controversy hinges on the judicial interpretation of the will — the material clause being item 3, viz.:

“Item 3. I give, devise and bequeath to my said executor, Jolm L. Leonard, the following described real estate, situate iu the county of Buchanan and State of Missouri, to wit:” (Here follows the land above described.) ‘ containing two hundred and forty acres, more ox less, and two thousand dollars in cash, to have and to hold unto him and his successors in trust for my daughter, Martha Jane Register, wife of H. O. Register. The two thousand dollars shall be paid by my said executor to my said daughter in monthly installments not exceeding eighty dollars per month, for her support during the period covered by the administration of my said estate. The income from the real estate above described shall be paid by said executor and trustee in monthly installments for the support of my said daughter, and her child or children, said money when paid to her to be her sole and separate property, free from control or interference of her said husband, H. O. Register, but in case my said daughter survives her said husband, then said real estate and said money, if any in the hands of said trustee, shall immediately vest in her absolutely, to have and to hold unto her, her heirs, and assigns, forever, and in case my said daughter shall die leaving surviving her any child or children of her body, then the trustee shall use the income from the real estate aforesaid and money on hand, if any, derived from said real estate, and said two thousand dollars aforesaid, to support, educate and maintain the child or children of my said daughter surviving her, until the youngest child, if a boy, arrives at the age of twenty-one years, and, if a girl, arrives at the age of eighteen years, at which time said real estate and property shall be turned over by said trustee to such child or children share and share alike, to have and to hold unto them, their heirs and assigns forever, but in the case my said daughter should die leaving no child or children, or their descendants surviving her, then said property shall go to my brothers and sisters and nephews and nieces herein named, to-wit: Samuel Montgomery, one part; Thomas Montgomery, one part; and the children of David O. Montgomery, one part; and Sarah Knox, one part; and in case of the death of either my said brothers or sisters, the heirs of said deceased brother or sister shall take the part that the sister or brother would be entitled to, if living’, to have and to hold unto them, their heirs and assigns forever. ’ ’

After bequeathing five hundred dollars each to his brothers, Samuel and Thomas, and five hundred dollars each to his nieces, Georgia and Ellen, and to a friend, Isaiah McVey, and ten thousand dollars to William Jewell College, to educate young men for the ministry and for the use of foreign missions in' spreading the Gospel, by items from 4 to 9 inclusive, item 10, which was annulled by the codicil, serves an office in outlining testator’s plan. It réads:

“Item 10. All the rest and residue of my property, real, mixed and personal, wherever situate, I give and bequeath and devise to my said executor, to him and his successors in this trust, to have and to hold in trust for my said daughter, Martha Jane Register, the income to be paid to her as her sole and separate property, free from the control of her said husband, H. C. Register, in installments, for the support of herself- and child or children, but in case my said daughter’s said husband, TI. O'. Register, shall die leaving- her surviving him, then said property, real, personal and mixed, shall immediately vest in her to have and to hold unto her, her heirs and assigns forever, and in case my said daughter shall die before her said husband, leaving surviving her a child or children, then my said executor and trustee shall use the income derived from said property, or such portion thereof as may be necessary to educate, support and maintain said child or children until the youngest child shall arrive, if a boy, at the age of twenty-one years, and, if a girl, at the age of eighteen years, when such child or children shall have said property, share and share alike, but in ease my said daughter shall die leaving no child or children, or their descendants, surviving her, then my said property shall go to my brothers and sisters, nephews and nieces hereinbefore referred to in Item Three of this will, share and share alike, except that the nephews and nieces shall take only such part of said property as is provided for in said Item Three aforesaid, and in case either of my said brothers or sisters hereinbefore named shall decease, then the share that he or she would have taken under this will, if living, shall go to his or her heirs, to have and to hold unto them, their heirs and assigns forever.”

Item 11 empowers the executors to sell all real estate necessary to pay debts and bequests, “except the two hundred and forty acres described in item three ...”

The concluding items are 12 and 13, viz.:

“Item 12. After the settlement of my estate, and the payment of my just debts, and the bequests herein provided for, my said executor is to hold all the property herein devised to him for the use of my said daughter in trust, free from the control of her said husband, and all moneys herein provided to be paid to my said daughter shall be paid to her as her sole and separate property.
“Item 13. It is my will, and my executor is directed to employ Judge Henry M. Ramey, or in case he is unable to act, Henry M. Ramey, Jr., as his attorney for said estate, and in executing and carrying out the trust herein created, and to employ no other attorney except upon the advice of -Judge Ramey or Henry M. Ramey, Jr., aforesaid.”

The codicil annulled items 10 and 12 and made his niece, his- adopted daughter, Georgia Montgomery, residuary legatee. It gave instructions as to the specific property he desired not sold to pay debts and legacies, unless absolutely necessary after exhausting all.other real estate and personal property, winding up by excepting from the power of sale “the two hundred and forty acres given to my executor for the use of my said daughter, Martha Jane Register.”

The question is: Had plaintiff curtesy under the will? Being without doubt, and therefore of one accord, we all agree the case was well decided below. This, because:

It being to the interest of the State that the wills of its citizens should be given effect, where they do not contravene the law, the great maxim, the cardinal judicial and statutory rule of interpreting wills, is to seek and get at the intent of the testator and enforce the will in accordance with that intent. To this end all the words and the whole scheme of the will are to be given effect as viewed from the standpoint of the testator, as near as may be. That Mr. Montgomery intended to exclude his son-in-law, the plaintiff, from his marital right of curtesy, we think is writ large in his will from end to end. Thus he did not devise the land to his daughter, but to a trustee, the trust being not alone for her benefit but for that of her children on a given contingency. Having created not a dry but an active trust and invested the trustee with the legal title and charged him with duties and powers, testator further provided that his daughter, one of the beneficiaries, the principal one in the trust scheme, in a named contingency (and only in that) should take the whole title and estate. That contingency was that her husband, the plaintiff in this suit, should die first, thereby (in such event) obviously precluding all possibility of curtesy in his then son-in-law.

Pursuing our search for the intent of testator, we find it to be that the testamentary scheme was that at the outset she (his daughter) was given an equitable estate not of inheritance but for life, subject, however, to be enlarged into an estate of inheritance upon the happening of the contingency just mentioned. Witness the will. Its language is: ‘ ‘. . . but in case my said daughter survives her said husband, then said real estate and said money, if any, in the hands of the said trustee, shall immediately vest in her absolutely, to have and to hold unto her, her heirs and assigns forever . . .” The happening of that contingency was a condition precedent to an estate of inheritance vesting in her. Otherwise it has no office. The contingency never happened; the daughter died before her husband; therefore she never became vested with a title to the trust estate (borrowing the words of the will) “absolutely, to have and to hold unto her, her heirs, and assigns forever.”

If the will had first given the whole estate to the daughter subject to be cut down to a lesser estate by a contingency that never happened, or if it was sought to cut a full estate, once plainly granted her by the will, down to a lesser one by words of mere inference of doubtful import, then we would have a different case to deal with.

The'next contingency by which the course of the estate is directed was this: “And in casemysaiddaughte.r shall die, leaving surviving her any child or children of her body, then the trustee shall use the income from the real estate aforesaid and money on hand, if any, derived from said real estate, and said two thousand dollars aforesaid, to support, educate and maintain the child or children of my said daughter surviving her, until the youngest child, if a boy, arrives at the age of twenty-one years, and if a girl, arrives at the age of eighteen years, at which time said real estate and property shall be turned over by said trustee to said child or children, share and share alike, to have and to hold unto them, their heirs and assigns for ever;...”

Dying without her equitable estate having been enlarged into a fee by the happening of the contingency that her husband should die before her, we see that the unmistakable intendment of the testator by the second contingency, which did happen, was that the trust should. continue, if there were minor children, during the minority of any child or children, and all the. children were to be supported, educated and maintained out of the income of the estate until the youngest child became of age, when the estate was to be “turned over by said trustee to such child or children, share and share alike, to have and to hold unto them, their heirs and assigns forever.” We lay little stress on the isolated and loose phrase, “turned over,” taken by itself. As shown by the associated words, viz., “to have and to hold unto them, their heirs, and assigns forever” (the same words testator had used in connection with the vesting in the wife of the estate absolutely on the happening of the contingency that her husband died first), its meaning must be taken to be, under the doctrine of noscitur a sociis, a vesting in them of a fee simple title. The fact that the trust executed itself upon the happening of one o,r the other of these contingencies, without the . necessity of a formal conveyance by the trustee', does not militate at all against such view. In this view of it, the son, the only surviving child, William L., then an adult, took title under the will of his grandfather as a purchaser and not as an heir of his mother.

There was yet another contingency on the hap^pening of which the course of this estate was directed in another channel, namely, if Mrs. Register died leaving no child or children then the estate passed to collateral kindred, named, viz., testator’s (not Mrs. Register’s) nieces and nephews, brothers and sisters.

Tn the very nature of things one or the other of these contingencies was bound to happen and cast the estate by descent at once upon the death of Mrs. Register, viz., either (a) Mr. Register would die first, in which event the fee simple title vested in Mrs. Register and would descend to. her heirs; or (b) she would die first leaving children, in which event the income for a stated period was to be devoted to the children and the trust was to continue during the minority of the youngest child, subject to be executed and the title vested under the will in the child or children when, that stated period had ended, thereby again precluding curtesy; or (e), lastly, she would die leaving a husband and no children, in which event by the terms of the will the estate vested, eo instcmti, -in named collateral Hn, thereby, again, precluding curtesy. We thus see that the scheme of the will precluded an estate of inheritance in the wife except in a contingency that never happened. It follows, by necessary implication, that the estate of the wife was a life estate, subject to be enlarged into a fee only on the condition precedent that the husband should die first, and that if she died first, leaving children, the entire income and usufruct of the estate went to them until the estate vested in them on the youngest child attaining its majority. If then testator had said in so many words that plaintiff should not have curtesy in the land, his intent would not have been more plain than it is under a proper construction of the will, for the testator’s will involved a scheme which necessarily precluded curtesy and, as said, necessarily created an equitable life estate in the wife at the outset, subject to be enlarged into a fee on the death of her husband prior to her own.

Curtesy being a common law right and therefore recognized in Missouri, where there is no statute abrogating it, the law favors it. It is primer knowledge that the essentials of such an estate are marriage, seizin of an estate of inheritance in the wife, issue born alive and death of the wife. It matters not whether the estate of inheritance be a legal or an equitable one, provided, in the latter instance, curtesy be not excluded by express words in the grant or by necessary implication. In this case the wife died not seized of an estate of inheritance. Curtesy, like dower, cannot be carved out of or predicated upon a life estate. Curtesy is an adjunct, a derivative estate, therefore the maxims apply, viz.: If the principal he taken away, the adjunct is also taken away. The principal or primitive estate ceasing, the derivative estate also ceases (Cessante statu primitivo, cessat derivativus). A life estate is “a tenure to which neither dower or curtesy is incident.” [Burris v. Page, 12 Mo. l. c. 361.]

The codicil refers to the 240 acres devised by Item 3 as “given to my executor for the use of my said daughter, Martha Jane Register.” Some stress is laid on the words there employed. It is argued’they 'tend to show that testator interpreted his will as giving an equitable estate of inheritance at the outset to his daughter. But we do not think they have such office. Their office, in the connection used, was merely descriptive of the 240 acres he did not want sold. The words were not intended to be operative im vesting or determining title. The title had already been vested by the principal will and there is nothing in the codicil to show that testator intended to modify his testamentary scheme in that particular. The force of the codicil was spent in another direction, viz., in changing the residuary legatee, and in putting a limitation on the donation of power to sell real estate.

Let the judgment be affirmed.

All concur.


author: VALLIANT, J.

text:
    WILLIAM J. PREISS, Appellant, v. ST. LOUIS COUNTY.
    Division One,
    November 30, 1910.
    1. SUIT AGAINST COUNTY: Implied Contract: Answer as Aider. Whether or not the c'ounty cannot be sued on an implied contract, if the answer comes to the aid of the petition and shows that the work for which plaintiff sues was done under an express contract, an objection to the introduction of evidence because the petition declared on an implied contract should be overruled.

      2. CONTRACT WITH COUNTY: Commissioner as Arbiter: Valid. An agreement in a’ contract with the county for work to he performed on certain public roads, that “the road commissioner shall in all cases determine the amount of work which is to be paid for under this contract and his estimate shall be final and conclusive,” is valid, and a measurement by the commissioner of the work in digging a trench for a roadbed, and allowing double measurement therefor, is binding upon the contractor; and though the commissioner testifies that the trench was six inches deep and he allowed double measurements therefor, and the contractor testified that by the instruction of the assistant commissioner he dug the trenches twelve inches deep, and was entitled to double measurement of twelve inches, the estimate made by the commissioner is binding upon the contractor, and he cannot recover for the double measurement claimed.
    3. -: Consideration Must Be Fixed Therein: Excess Allowance. The consideration for the performance of public work for a county must be fixed in the contract; and the county court is not authorized to pay a contractor double the contract price for work done under a contract for improving public roads, and double measurement is the same as allowing payment at twice the contract price. And where the contract fixes the price per cubic foot for the work to be done, and says nothing of double measurements for digging the trench for a roadbed, although it is more expensive, since it must be done by hand, whereas the grading and other work may be done by machinery, and although it may have been the custom for years to allow double measurements for such trenches, the commissioner has no right to return a measurement of twice the number of cubic feet actually excavated, and the county court no right to pay for a double measurement.
    Appeal from St. Louis County Circuit Court. — So». Jno. W. McElhinney, Judge.
    Affirmed.

      A. E. L. Gardner and B. H. Stevens for appellant.
    (1) All work d.one by appellant was fully covered by bis contracts for tbe improvement of tbe roads, same to be done under tbe supervision and direction of tbe road commissioner, or bis authorized assistant, and tbe price per cubic yard for tbe work done fixed. Appellant is therefore entitled to recover for all work denominated extras as coming under the general term, “improvements to said roads, and done under the direction of the road commissioner, or his authorized agent.” (2) Section 9522, R. S. 1899, under which the county court of St. Louis county repairs and builds roads, authorizes the county court to set aside from the general fund money for the improvement of its roads. Grading and Telfording is one of the methods for the improvement of roads contemplated by that article to be paid for out of the money so set aside. Grading and Telfording of roads can, therefore, be classed as ordinary business of St. Louis county and may be done under the supervision of road overseers, or the road commissioner, or by. contract. Therefore, such work falls under Sec. 1800, R. S. 1899, which provides that “if a claim against a county be for work and labor done, or materials furnished, in good faith, by the claimant, under contract with the county authorities, or with any agent of the county, lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of his work, though such authorities or agent, may not, in making such contract, have pursued the form of proceedings prescribed by law. ’ The road commissioner was the duly authorized agent of the county for the improvement of these roads and any contract made by him for the digging of the roadbed is valid and binding under this section (180'0) on the county, and can be enforced whether the same be in writing or not, provided the work was done by the contractor under his agreement. In this case the agreement was pay for double measurement for digging roadbed for the Telford paving, and plaintiff did, under the agreement, do the work, and is therefore entitled to recover double measurement. Anderson v. Ripley, 181 MO'. -46. Under the contracts, the road commissioner returns all. estimates for work done by the contractor to the county court, which approves and pays the same. The road commissioner always allowed double measurement for cutting roadbed for the reason that this work was largely done by hand to make it accurate. He agreed with plaintiff, the appellant, to give him double measurement for cutting the roadbed; such agreement is reasonable and is within the authority conferred upon him by the county court and, under section 1800, is binding on the county.

      R. L. Shackelford for respondent; J. C. Kiskaddon of counsel.
    (1) The petition does not state facts sufficient to constitute a cause of action against a county. The petition is an action at law on a quantum meruit. No such action lies against a county. The petition ought to have alleged sufficient facts to bring the action within the terms of the statute. This it fails to do. R. S. 1899, sec. 6759. (2) Counties can not be made liable on implied contracts, such as stated in the petition. Anderson v. Ripley County, 181 Mo. 46; Walcott v. Lawrence County, 26 Mo. 272; Crutchfield v. Warrensburg, 30 Mo. App. 402; Trask v. Livingston County, 110 Mo. 594; Sparks v. Jasper County, 113 Mo. 242; Seaman v. Levee Dist., 119'. Mo. 33; Saline County v. Wilson, 61 Mo. 239; Taylor v. School List., 60 Mo. App. 372; Hisey v. Charleston, 62 Mo. App. 381; Woolf oik v. Randolph County, 83 Mo. 501. (3) The plaintiff introduced two contracts with the county. These contracts were not pleaded in the petition, and therefore such evidence varied from the allegations of the petition. But corn ceding for the sake of argument that said contracts were competent evidence under the petition, yet both contracts contained a stipulation that the parties agreed that the road commissioner should “in all cases determine the amount of work which is to be paid for under this contract, and his estimate shall be final and conclusive.” If plaintiff expects to recover under the contracts! it is an essential prerequisite that he should state in Ms petition that the road commissioner had made final estimates, which the county refused to pay, or that he had willfully failed and neglected to make such final estimates, or that his final estimates, if any, were false and made capriciously or maliciously. It is hardly necessary to remark that the petition alleges no one of these prerequisite grounds. Dinsmore v. Livingston County, 60 Mo. 244; Williams v. Railroad, 112 Mo. 489; Chapman v. Railroad, 114 Mo. 549; Williams v. Railroad, 153 Mo. 499; Ray v. Boteler, 40 Mo. App. 222; Eldridge v. Fisher, '59 Mo. App. 53; Mc-Nees v. Insurance Co., 69 Mo. App. 236; Mockler v. St. L. Inst., 87 Mo. App. 475.
   VALLIANT, J.

Plaintiff sued the county for balances on account claimed to be due him for work performed in improving certain public roads in the county. The petition does not allege that the. work was done under an express contract further than to say that the defendant employed the plaintiff to do the work. There are two counts in the petition, the first for a balance claimed to be due for work done on Char-bonnier and Howdershell road, the second for a balance for like work on the Bonhomme road. The items .of the work and their alleged value are set out m each count in the form of an account; the items in the first count amount to $13,128.55', against wMch plaintiff avers he has received from the county $11,912, leaving a balance due him of $1,216.55; the items in the second count amount to $11,912.01, agamst which plaintiff has received $10,892.34, leaving a balance due him of $1,019.67, for which balances judgment is prayed.

The answer was a general denial as to each count and an affirmative plea that the work done was under written contracts wherein, among other things, it was provided that all measurements and estimates of amounts due plaintiff were to be made by. the commissioner of roads and bridges, whose action therein should be conclusive; that acting under that specification in the contracts, the commissioner did make and furnish to plaintiff and to defendant each estimates of the measurements and of the amounts dué plaintiff, and defendant has made full payment to the plaintiff of the amounts so fixed by the commissioner.

The reply was a general denial.

At the- beginning of the trial counsel for defendant objected to any evidence on the part of the plaintiff on the ground that the petition did not state facts sufficient to constitute a cause of action against the county; the point being that since a county could'not be rendered liable in such a matter except on a written contract, and this petition being in form a declaration on an implied contract, it stated no cause of action against defendant. The objection was overruled.

The evidence on the part of the plaintiff tended to prove all the items of the account as stated in the petition except the items of digging trenches for the roadbeds, which were charged in the account as double of the real amount, that is to say, in the first count this item was stated thus: “Digging trench for roadbed,, double measurement, 10,933.4 cu. yds. at 18c per cu. yd. — 1968.01;” in the second count it was: “Digging trench for roadbed, double measurement, 8936 cubic yards at 21c per cu. yd. — $1876.55-.” The price per cubic yard was correctly stated, but the number of cubic yards stated was double their real number in each count. The real controversy in the case was as to the plaintiff’s right to a double measurement in those items.

The contracts pleaded in the answer were introduced in evidence by the plaintiff, which contained the clauses in reference to the decision of the commissioner as to the estimates being final; there was nothing in the contracts about double measurement, but the specifications were that the plaintiff should be paid in the one instance eighteen cents and in the other twenty-one cents per cubic yard for grading.

Prom time to time during the progress of the work the commissioner gave monthly estimates to the plaintiff on which he drew pay and in the end gave him a final estimate as the balance due on the completed contracts, which did not contain the double estimate which plaintiff now claims, and he testified that when he presented the same to the county court for payment and received the payment therein called for he refused to give a receipt in full and insisted that he was entitled to the amount now claimed.

The work was not done under the immediate supervision of the commissioner, but under an assistant appointed by the commissioner.

Plaintiff had been engaged as a contractor doing this kind of work in St. Louis county for nineteen years; he was asked if it was not the usual custom to allow contractors double measurement for the kind of work for which he was claiming it, but the defendant objected to the question and the objection was sustained.

The commissioner was a witness in behalf of the defendant and he testified that it had been the custom as long as he had been in office to allow double measurement for this particular kind of work, and he testified that in point of fact the estimates he gave the plaintiff did contain double measurement. We infer that the trench for the roadbed for which double measurement is claimed, differed from ordinary grading, in that it was required to be done with greater particularity and to be done by hand instead of by machine, since it was to be the foundation for Telford pavement.

The fact in dispute was this: The commissioner who designed the road improvement estimated that the actual excavation.for the Telfoi'd should be five-tenths of a foot in depth, and he drew the profiles and plans for the contractor’s guidance showing that depth, and he testified that in his opinion that was the actual depth of the excavation made and that when he made the final estimate he gave the contractor double measurement of that depth, that is twelve inches. But the plaintiff testified that under the direction of the assistant commissioner the excavation was made to an actual depth of twelve inches, and the claim is for a double measurement of a twelve-inch excavation.

There were some small 'items of extra work claimed, but as to them the commissioner testified that he allowed them in the final estimate and plaintiff was paid for them.

The .trial was by the court, jury waived; the finding and judgment were for the defendant, and the plaintiff appealed.

I. The court overruled the objection of defendant that the petition did not state a cause of action against the county because it was a declaration on an alleged implied contract, -whereas the county could, only be liable under an express contract. The court ruled cor - rectly on that point, if for no other reason, because the answer came to the aid of the petition and showed that the work was done under express contracts.

II. In each contract it is stipulated: “To prevent all disputes and litigation, it is further agreed by the parties hereto, that the road commissioner shall in all cases determine the amount of work which is to be paid for under this contract, and his estimate shall be final and conclusive.”

That is a valid agreement, and a wise one to be put. into contracts of this kind, and the action of the road commissioner covered the point in dispute. His estimate of the extent of the excavation was that it was five-tenths of a foot deep and although the work was not done under his personal supervision, yet he testified that in his opinion it did not exceed that depth. That was a matter especially within his province to decide and his decision should be final. But he also testified that his estimate allowed the plaintiff double measurement on a basis of five-tenths of a foot.

Although the decision of the road commissioner is sufficient to justify the judgment of the circuit court, yet we feel in duty bound to express our opinion on the claim for double measurement, lest passing it over in silence should lead to misapprehension. The requirements of our statutes in regard to contracts for public work to be paid for out of the county treasury are very strict. Section 6759, Revised* Statutes 1899, now section 277'8, Revised Statutes 1909, not only requires all such contracts to be in writing, but that they shall express the consideration to be paid by the county. The county court cannot lawfully pay for work done under such a contract a greater price than is therein expressed. In Anderson v. Ripley County, 181 Mo. 46, it was held that unless the consideration is expressed in the contract the contractor cannot recover for the work done. In the case at bar the contract calls for grading in the progress of the construction or improvement of the road- and it specifies the price to be paid therefor per cubic yard, that is, eighteen cents in one road and twenty-one cents in the other. The county court would have no right, when the work was done, to pay the contractor thirty-six cents per cubic yard in the one instance and forty-two cents in the other, either for all of the grading or for a part of it. To return an estimate of twice the number of cubic yards excavated and allow payment for the double estimate at the contract price is the same as allowing payment at twice the contract price for the actual work. Custom sometimes is serviceable in interpreting a contract not clear and explicit in itself, but custom cannot authorize the county court to pay the contractor double the contract price for work done under a contract like this. If digging trenches for the roadbed is work of a different character from other grading called for in the contract, and costs more to execute, it can be provided for as a separate item of grading in the contract and a higher price specified, but the road commissioner cannot allow nor can the county court p,ay more for the work than the contract price.

The trial judge had the correct view of the law. The judgment is affirmed.

All concur.


author: WOODSON, J.

text:
    W. I. WALLACE et al. v. E. L. LIBBY, Appellant.
    Division One,
    November 30, 1910.
    1. APPEAL: Abstract: Motion for New Trial. The abstract of the record proper mu'st show the filing and overruling of the motion for a new trial. A recital in the bill of exceptions that such motion was filed and overruled does not cure the omission of such recital from the record proper, for the bill is not the proper receptacle for such matters.
    2. -: -: Bill of Exceptions. If the record proper does not show that the bill of exceptions was filed, the evidence cannot be considered on appeal; and if no portion of the printed abstract purports to be the record proper, it cannot be held that the abstract 'shows that a bill of exceptions was filed.
    3. ———: -: Matter of Record and Exception.' The printed abstract should distinguish between matters of record proper and matters of exception. A failure to do so is fatal to the appeal.
    4. -: -: Arrangement and Printing of Points and Argument. So long as there is a substantial compliance with Rule 15, an objection to the form of the brief or the order of argument will not defeat the appeal. Merely because appellant’s brief does not set out the points in numerical order, together with a citation of authorities under each point, and does not separate points from argument, the appeal will not be dismissed.
    5. -: -: Judgment. The abstract of the record proper must show that a judgment was rendered, or the appeal will be dismissed.
    Appeal from Laclede Circuit Court. — Now. L. B. - Woodside, Judge.

      Dismissed.

      J. W. Farris for appellant.

      W. I. Wallace for respondents.
   WOODSON, J.

This is an equitable proceeding, begun in the Laclede Circuit Court, November 29,1905, for the purpose of removing a cloud from the title of certain real estate, situate in said county, and specifically described in the petition, and which plaintiffs claimed to own, and to enjoin the sale of same by Sam Farrar, trustee, under a deed - of trust executed by Charles F. Clough and Walter Clough, in which the defendant, E. L. Libby, was named as the beneficiary; also for the purpose of quieting the title to said real estate. A temporary injunction was granted by the trial court, and upon the final hearing was made perpetual. The relief prayed for in the petition was granted and the title quieted. From that judgment and decree the defendant duly appealed to this court.

I. At the threshold of this casé we are confronted with a motion, timely filed in this court, asking that the appeal be dismissed, or that the judgment be affirmed, for the reason that appellant has failed to comply with the rules governing the practice in this court in the following particulars to-wit:

“1. Because the printed abstract of the record proper fails to show that a motion for a new trial was filed and overruled by the trial court.
“2. Because the printed abstract of the record proper fails to show that a bill of exceptions was filed.
“3. Because the printed abstract fails to show where the abstract of the record proper ends, and the bill of exceptions begins.
“4. Because appellant’s brief herein is not printed separate and apart from the argument or dis-mission of the authorities, and does not contain a statement, in numerical order, of the points relied on, together with a citation of authorities under each point, as required by Rule 15. Further,.because appellant’s brief does not distinctly and separately allege the. errors committed by the trial court as required by Rule 15.
“5. Because the abstract of the record proper fails to show that a judgment was rendered by the trial court.”

Addressing ourselves to the first grounds of the motion, it is sufficient to state that the printed record wholly fails to designate what is record proper and what is matter of exception. In fact, it fails to state that anything printed in • the abstract is contained either in the record proper or in the bill of exceptions, but leaves this court to conjecture whether or not the matters so printed are contained in either, and if in either, then which.

In a long line of eases this, court has repeatedly held that the abstract of the record proper must show the filing and overruling of the motion for a new trial. [Harding v. Bedoll, 202 Mo. l. c. 625; Hill v. Butler Co., 195 Mo. l. c. 514; Flanagan Milling Co. v. St. Louis, 222 Mo. 306.] No such showing was made, and the abstract totally failed to comply with the rule in that regard. Nor-could that defect in the abstract be cured by a recital of matters of record proper in the bill of exceptions. [Western Storage & Warehouse Co. v. Grlasner, 150 Mo. 426; Ponnowfsky v. Coerver, 205 Mo. 135.] Under the latter decisions, appellant would be in no better position, even though the bill of exceptions showed that the motion for a new trial was filed and overruled, for the reason the bill is not the proper receptacle for such matters.

We are, therefore, of the opinion that the first ground assigned in the motion was well taken.

II. As regurds the second ground assigned in the motion to dismiss o,r affirm, namely, that the record proper does not show that the hill of exceptions was ever filed.

In regard to this contention we wish to state that ■after a careful inspection of the entire printed abstract, we have been unable to find any portion thereof which purports to be the record proper, and, consequently, the record proper could not show the filing of the bill of exceptions. That failure is fatal to a hearing in this court. [Stark v. Zehnder, 204 Mo. 442; Harding v. Bedoll, supra; S. M. & A. Railroad v. Wyatt, 223 Mo. l. c. 352.] Nor would a recital of the filing in the bill of exceptions itself supply the omission in the record proper. [Western Storage & Warehouse Co. v. Glasner, supra; Pennowfsky v. Coerver, supra.]

III. As regards the third ground, there is nothing contained in the printed abstract to distinguish matters of record proper and matters of exception. This alone is fatal to a right to a hearing in this court. [Barham v. Shelton, 221 Mo. l. c. 70; Clay v. Pub. Co., 200 Mo. l. c. 672; Stark v. Zehnder, supra.]

IV. The fourth ground of the motion is not well taken. Much latitude must, in the very nature of things, be permitted under Rule 15 of thjs court. Each brief and argument must depend largely upon the individuality of the person who prepares or makes them, and no fixed standard can be erected by which each and all briefs and arguments are to be measured or tested. Just so there is a substantial compliance with Rule 15, no objection can successfully be made to the form of the brief or the order of the argument.

V. The fifth ground of the motion is also well taken.

The printed abstract not only fails to show that the record proper recites the rendition of the judgment, but it also fails to designate any matter whatever as appearing by the record proper. This is also fatal to this appeal. [Reagan v. St. Louis Transit Co., 180 Mo. l. c 143-144; Harding v. Bedoll, supra.]

There being no record proper or bill of exceptions before this court for review, there rémains. nothing for us to do but to sustain the motion and dismiss the appeal. It is so ordered.

All concur..