author: BOND, J.

text:
    ORRIS E. NORTHRIP, A Minor, by GEORGE NORTHRIP, his Next Friend, v. ELLEN A. BURGE, and ELLEN A. BURGE, Administratrix of Estate of JAMES BURGE, Appellant.
    Division One,
    March 3, 1914.
    1. DONATION CAUSA MORTIS: Essential Elements. To constitute a conditional gift of personal property ccmsa mortis it is essential that it he made in reasonable expectation of death and that the giver shall transfer the property by an actual or constructive delivery, subject to be defeated by revocation during his life, or by his recovery from an existing illness, or by his survival of the donee. In this case there is no evidence showing a delivery, either actual or constructive, to the donee or any one for him, at any time during the donor’s life.
    2. EXPRESS TRUST: In Personal Property: No Writing: No Trustee Named. The' Statute of Frauds does not prevent the creation of an express trust in personal property without any writing. By fitting terms and action on the part of the settlor, such a trust may be created, and when completed is an executed one, and will be enforced in equity, although voluntary. Nor is it requisite to the validity of such a trust that a trustee be named; for the creator may constitute himself a trustee of a completed parol trust of personal property, and, if he names no trustee, equity will not permit such a trust to fail because of a want of a trustee.
    3. -: The Three Essential Elements. To create a valid parol trust in personal property three things are indispensable: first, the words of the settlor must express a declaration and grant by him of an estate or interest containing all the essential elements of a trust; second, there must be a definite subject-matter of a trust; and, third, there must be a definite object or beneficiary of the trust. These necessary requisites exclude all voluntary executory agreements for the creation of such a trust, as well as all unexecuted or imperfect gifts of the personal property.
    4.-■: -: Kind of Evidence: Contents of House. And where the question for determination is whether a valid parol trust in personal property has been created, the evidence that the alleged trust was executed must be so clear, certain, complete and convincing as to remove all reasonable doubt from the mind of the chancellor; and tested by that rule, it is held that an old and penurious grantor in a deed, made ten days prior to his death, conveying the house and lot in which he lived, worth six or seven hundred dollars, to his sister-in-law as trustee for a neighborhood boy who had delivered milk to him and done him appreciated acts of kindness, did not intend by the deed to give to the boy $32,000 in notes and mortgages hidden in the house, the word “contents” not being used in the deed, and nothing being said by him at the time the deed was executed about its contents, and the only reference the.reto being declarations by him a few days later that he wished the boy to have what was in the house.
    5. -: —--: Enlarging Terms of Deed by Subsequent Deci liaration. In the absence of any fraud or imposition upon the grantor in a deed of gift in the matter of its execution, subsequent declarations made by him after it was recorded at. his direction, are not competent to enlarge its descriptive words or to show that it did not include all he intended to convey— for instance, such declarations are not competent to show that by a deed which simply described the lot he meant to give to the donee $32,000 in notes and mortgages hidden in the house thereon.
    6. -: -: Practice: Trial by Jury. The verdict of a jury in suits in equity are only advisory and may be wholly disregarded by the chancellor. The advice of a jury may be taken on particular issues of fact wherein the finding may be made to rest upon the preponderance of the evidence. But where the issue is whether a completed parol trust in definite personal property has been executed in favor of a certain beneficiary, the testimony necessary to establish the trust must be sufficient to dispel any reasonable doubt in the mind of the chancellor, and the court should not relegate- the whole controversy to the jury.
    Appeal from Christian Cironit Court. — Hon. John T. Moore, Judge.
    Reversed.

      Orm Patterson, J. T. White and V. O. Coltrane for appellant.
    (1) Three things must concur to raise a trust: Sufficient words to create it, a definite subject, and a definite object; and to these may be added another, viz., that the terms of the trust should be sufficiently declared. In re Sonlard, 141 Mo. 664; Banking Co. v. Miller, 190 Mo. 670; Crowley v. Crowley, 131 Mo. App. 183; Kramer v. McCaughey, 11 Mo. App. 429. (2) What are sufficient words to create a trust? (a) Equity will not convert an imperfect gift or settlement into a declaration of trust. Goodman v. Crowley, 161 Mo. 663; In re Soulard, 141 Mo. 659; Banking Có. v. Miller, 190 Mo. 640; Godard v. Conrad, 125 Mo. App. 1. c. 175; 3 Pom. Eq. (3 Ed.), sec. 997, p. 1865. (h) To establish a trust there must be evidence of a clear intention of the settlor to become an accounting party. Knapp v. Publishers, 127 Mo. 77. (c) To constitute a trust, there must, be either an explicit declaration of trust, or circumstances which show beyond a reasonable doubt that a trust was intended to be created. McKee v. Allen, 204 Mo. 655; Young v. Young 80 N. Y. 422, 36 Am. Rep. 634. (d) The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. Wadd v. Hazelton, 137 N. Y. 215, 33 Am. St. 707. (e) In order to the creation of an express trust, an intention to do so must be expressed from the words used. Mulock v. Mulock, 156 Mo. 438. (f) To create a trust whether in regard to real or personal property, the act must be done with that intent, and must be manifested, by clear and unequivocal evidence. Woodford v. Stephens, 51 Mo. 443. (g) When the settlor constitutes himself trustee, “he need not use the words, ‘I declare myself a trustee,’ but he must do something which is equivalent to it, and use expressions which have that meaning; for however anxious the court may be to carry out a man’s intention, it is not at liberty to construe words otherwise than according to their proper meaning.” 3 Pom. Eq., sec. 997, p. 1867 (note), sec. 998, p. 1874 (note). (3) Evidence required to establish a declaration of trust, (a) A trust in personal property must be made to appear just as definite and clear as any express trust established in real estate by writing. Crowley v. Crowley, 131 Mo. App. 179. (b) Evidence of mere loose declarations of the person holding the legal title will not be sufficient, and testimony of verbal admissions or statements of persons, since dead, is entitled to small weight in establishing such a trust. Curd v. Brown, 148 Mo. 92. (c) ‘ ‘ Our experience shows the ease with which declarations of a deceased person may be proved and warns not to place too great reliance upon them. Evidence of such declarations never amounts to direct proof of the facts claimed to have been admitted.” Rosenwald v. Middlebrook, 188 Mo. 94; Collins v. Harrell, 219 Mo. 306; Ringo v. Richardson, 53 Mo. 395; Johnson v. Quarels, 46 Mo. 427. (d) Evidence of admissions made by the party to be charged with a trust are considered unsatisfactory, especially when they are not consistent. Crowley v. Crowley, 131 Mo. App. 178. Admissions should be supported by other circumstances going also to show the existence of the trust. Ringo v. Richardson, 53 Mo. 385; Collins v. Harrell, 219 Mo. 306; 1 Perry on Trusts (4 Ed.), sec. 147; McKee v. Higbee, 180 Mo. 299; Berry v. Hartzell, 91 Mo. 132; Garrett v. Garrett, 171 Mo. 164; Allen v. Withrow, 110 U. S. 119. (e) Of all evidence the narration of a witness of his conversation with a dead person is the weakest. 2 Moore on Facts, sec. 877, p. 1014, sec. 1050, p. 1187; Fanning v. Doan, 139 Mo. 412. (f) In order to prove such a trust it must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. Foley v. Harrison, 233 Mo. 584; Smith v. Smith, 201 M'o. 547; Crowley v. Crowley, 131 Mo. App. 183; Reed v. Sperry, 193 Mo. 173; Curd v. Brown, 148 Mo. 92; Mead v. Robertson, 131 Mo. App. 196. (g) Where there is a great conflict in the testimony an equity court will not undertake to decide which testimony is true. Brinkman v. Sunken, 174 Mo. 709. (h) No good reason can he perceived why the rule on the admission of statements of a testator should not apply to the admission of statements alleged to have been made by the declarant of a trust, at least as to that part of the trust which was to take effect at his death. Under. certain conditions such statements are admissible, but they are not to be received or taken as proof of the truth of the facts narrated. Teckenbrock v. McLaughlin, 209 Mo. 548. (4) It would seem to be elementary law that when parties have put their- agreements in writing, in the absence of accident, fraud or mistake, it is conclusively presumed that the whole engagement, and the extent and manner of their undertaking was reduced to writing. Davis v. Scovern, 130 Mo. 303. And that parol evidence of a contemporaneous oral agreement is inadmissible to show a trust outside of and in addition to the written instrument. Hall v. Small, 178 Mo. 629. Yet this case was tried in the lower court by a different rule. (5) The fact that James Burge directed Ellen Burge to deposit this money in the bank (it is not disputed that he did this as to the money deposited before the date of the deed), in his name and her name so that if he lived he could draw it out shows that he did not intend to part with his money until his death. Bank v. Mc-Kenna, 168 Mo. App. 258. (6) Plaintiff pleads, or undertakes to plead, that deceased gave him the property in controversy and told him to take possession of it at his death, thereby declaring a trust. Nor is the evidence any stronger in favor of plaintiff. Nothing more is pleaded than a gift causa mortis, with change of possession deferred until the death of the donor. It is the universal rule that to make such a gift valid there must be such a change of possession as to put it out of the- power of the donor to repossess himself of the property. The very fact that deceased retained control of the property is incontestable evidence of the incompleteness of the gift. Brannoek v. Magoon, 141 Mo. App. 316; G-artside v. Pahlman, 45 Mo. App. 164. (7) Neither the original nor amended petition of plaintiff states facts constituting a trust. In any case the material facts should be directly and not inferentially alleged. Cook v. Putnam County, 70- Mo. 668; Sec. 1794, R. S, 1909; 4 Ency. PI. & Pr. 605, 606. And in cases of this character it will not satisfy the requirements of the law to plead or prove an agreement of an indefinite character leaving its terms more or less to inference. “There must be no equivocation or doubt in the case. ‘When a plaintiff comes into court with a ease of this kind, there should be no doubt in the pleadings or in the proof as to the contract. ’ ” Rosenwald v. Middlebrook, 188 Mo. 90; Walker v. Bohannan, 243 Mo. 136. (8) This case was not tried by the tribunal appointed by law. The statute says' that issues of this kind must be tried by the court, except that the opinion of a jury may be taken on specific questions of fact. Bray v. Thatcher, 28 Mo. 132; R. S. 1909, sec. 1969.

      Hamlin & Seawell, J. P. Nixon, Thos J. Moore, 8. E. Bronson and Frank B. Williams for respondent.
    (1) There is no legal objection to a trust in personalty being created in parol, a writing being only required for realty; nor is there any legal requirement that a third party shall be the trustee. The donor may make himself such. Bank v. McKenna, 168 Mo. App. 254; Banking Co. v. Miller, 190 Mo. 664; Watson v. Payne, 143 Mo. App. 726. Where a person sui juris, orally or in writing, explicitly or impliedly, declares that he holds personal property for another, he thereby constitutes himself an express trustee. Banking Co. v. Miller, 190 Mo. 664. A self-constituted trustee is not an uncommon personage. Mize v. Bank, 60 Mo. App. 363. A complete divestiture of equitable title might be produced by a clear and unambiguous declaration to that effect, although a further disposition of the legal title was still in contemplation. Lane v. Ewing, 31 Mo. 86. The creation of a trust is but the gift of the equitable interest. An unequivocal declaration as effectually passes the title to the cestui que trust as a delivery passes the legal title to the donee of a gift inter vivos. One may constitute himself trustee by mere declaration. Banking Co. v. Miller, 190 Mo. 669. If the owner of property declares a purpose and intention of immediately divesting himself of the title to its corpus for purposes openly expressed, he in effect appoints himself trustee. Grodard v. Conrad, 125 Mo. App. 175. If the donor makes himself trustee no transfer of the subject-matter óf the trust is necessary. Mize v. Bank, 60 Mo. App. 364. When a trust is thus created it is effectual to transfer the beneficial interest and operates as a gift perfected by delivery. Banking Co. v. Miller, 190 Mo. 671. It is not necessary in order to declare a trust that the words “trust” and “trustee,” or equivalent words should be used. If a clear intention to create a trust appears from the language used, the declaration will be sufficient, though technical words are not used. ' In re Soulard, 141 Mo. 664; 28 Am. & Eng. Ency. Law, 898. (2) A parol trust must be established by evidence that is convincing, and the terms must be clear, definite and complete, but it would be carrying the rule to an unreasonable and unjust length to say that the evidence of the trust must be uncontradicted. It suffices if the evidence is strong enough to thoroughly convince the chancellor that a trust was declared and that the terms of the trust were defined with clearness and certainty. Watson v. Payne, 143 Mo. App. 727. In re Soulard, 141 Mo. 662. In order to determine this question it is proper to consider the intention of the donor, the circumstances surrounding the parties, and the character of property which was made the subject of the trust. It is also proper to consider declarations and acts of the donor before or about the time of the alleged transaction for the purpose of showing his intention and the character of the act. Miller v. Clark, 40 Fed. 15; Bank v. Albee, 64 Vt. 471; Williamson v. Yag'er, 34 Am. St. 216. (3) When a trust is declared (in personal property), whether in a third person or the donor, it is not essential that the property be possessed by the cestui que trust, or even that the beneficiary should be informed of the trust. Mize v. Bank, 60 Mo. App. 364. It is no objection to the creation and validity of a trust that the enjoyment of the beneficiary’s interest is postponed, provided the leg'al title passes to the trustee and a present interest vests. 39 Oyc. 43; 28 Am. & Eng. Ency. Law, 894. It may depend for its commencement upon the termination of an existing life or lives, or an indeterminate estate. Nichols v. Emery, 109 Cal. 323; Dunn v. Houghton, 51 Atl. 71. (4) An executed voluntary trust is enforceable in equity and is irrevocable though voluntary. Watson v. Payne, 143 Mo. App. 728. (a) A voluntary trust is defined as an obligation arising out of a personal confidence, reposed in, and voluntarily accepted by, one for the benefit of another. 39 Oyc. 28. (b) An executory trust is one. that is incomplete, a promise to create a trust. Watson v. • Payne, 143 Mo. App. 721. (c) An executed trust is a trust so clear and certain in all its terms and limitations that a trustee has nothing to do but to carry out all its provisions, according to its letter. Cornwall v. Orton, 126 Mo. 366. (5) It- is wholly immaterial in equity cases whether instructions asked were correct declarations of law or whether they were properly or improperly refused, or whether evidence was properly admitted or excluded. Waddington v. Lane, 202 Mo. 387; Nevins v. Moore, 221 Mo. 330; Banking Go. v. Miller, 190 Mo. 351; Davis v. Forman, 229 Mo. 46. (6) The petition states that Burge’s house and lot were conveyed to plaintiff; that money and securities were then hidden in the walls and furniture; that ■after the deed was made Burge stated to plaintiff and to third persons that he had given him the house and the furniture in it and the contents of the house, and that all these things were plaintiff’s and could not he taken from him, and declared to plaintiff and to third persons that the said house and furniture and everything in it belonged to plaintiff, and that he had given them to him and that they were the plaintiff’s, and that he wanted plaintiff to stay right in the house and take possession of all these things as soon as the breath should leave his body, and declared and created a trust in favor of plaintiff in the said personal property hereinafter described and constituted himself trustee as to the legal title in said personal property and passed the beneficial or equitable title therein to plaintiff. This is sufficient, with the other allegations, to constitute a cause of action. Banking Co. v. Miller, 190 Mo. 640. (7) It must not be forgotten that the words uttered by James Burge by which he constituted himself trustee for the Northrip boy of the money and notes comprised in the judgment were spoken after he deeded the house to him and before the said money and notes were taken out of the house, that is, between February 15th and February 18th, 1911. That the boy was living in said house at the time, having been brought by James Burge into his household for a purpose,-as we contend, and remained there by his direction to take possession as soon as the breath should leave his body. Burge stated plainly and clearly that he had given the house and contents— everything in it — to the boy, not that he was going to do so, but that he had done so, and that his papers and everything in the house belonged to him. Burge had hidden in the house at the time of these declarations, in places known only to himself, large sums of money and other valuables. If Bui;ge thought by deeding his house to the boy he gave him the valuables therein, and repeated afterwards that he had given them to him and that they were his and belonged to him, this would show his- intention to immediately divest himself of the beneficial title in said valuables, and his statements that he wanted the boy to stay right there and take possession as soon as the breath left his body show his purpose to retain control while he lived, postponing future enjoyment nntil his death. Foley v. Harrison, 233 Mo. 582. (8) It is axiomatic that the law considers that as certain which can be made certain. If the house belonged to the boy and everything in it belonged to him, and if it contained valuable property, secreted in it, the amount of which was ascertainable by mathematical calculation, then this was a sufficient designation of the subject-matter. The subject-matter was everything in the house, and that was found by the chancellor to be $32,787.
    STATEMENT.
    This is a suit in equity, brought by a minor through his next friend, to establish and enforce an alleged trust in certain moneys, notes and choses in action in the hands of the administratrix of James Burge deceased. The answer of the administratrix was a general denial. The case was tried npon a change of venue in Christian county. A jury was called over the exception of defendant, and nine of their number brought in a ‘verdict for plaintiff for $32,787, which was adopted by the court as the basis of a decree against the administratrix.
    The evidence was that James Burge died in his eightieth year without any descendants; that he had lived about forty years before his death in the outskirts of Springfield; that he was a carpenter by trade and occupied a four-room dwelling, the north room of which, was constructed by himself; that he owned three other lots of ground in Springfield, all aggregating about $2000 in value; that an inventory of his estate disclosed that he had also in Springfield about $61,931.06 in money and mortgages, and $13,000 in money in the State of New York; that his death took place on the 25th of February, 1911; that on the 10th, 11th and 18th of February, 1911, $32,949 in money was taken from places in which it was hidden in his dwelling, by the defendant administratrix, who was the widow of a deceased brother, and by George T. Davies, his real estate agent, and deposited to his credit in the banks of Springfield, and afterwards included in’ the inventory of his estate; that mortgages, bonds and securities to the value of about $15,000 were also removed by the same persons from the. places where the deceased kept them in his dwelling, and these or their proceeds were also included in the inventory of his estate; that the estate left by the deceased, with the exception of his money invested in New York, was the accumulation of a life spent in saving and self-denial and hoarding, and the bulk of it was secreted over two doors and behind a flue under a window of his residence, and in the false bottom of a workbench. He kept an account, however, in two banks, of about $9000. He appears to have been a man of few intiT mates in the town of Springfield, except the defendant administratrix, who was his sister-in-law, and George T. Davies, his real estate agent.
    His personal habits were untidy, because of his desire to avoid every form of expense or outlay. Such a hold did that feeling take upon him that he voluntarily deprived himself of suitable clothing, a comfortable bed and a generous diet, but he was honest in all his dealings. He frequently visited the house of his sister-in-law, in whom he seems to have had full confidence. He took Thanksgiving dinner there the November before Ms death, and as he was unable to be there on Christmas day she carried his Christmas dinner to his house. When he became sick enough to send for a doctor in January following*, he requested the physician to send for his sister-in-law.
    About four years before his death the plaintiff, then between eight and nine years old, delivered milk to him, and about one year before his death the plaintiff left at his door a May basket made out of a grape box and covered with flowers with his name on a piece of paper in the box. His declarations to others show that he appreciated this act on the part of the plaintiff.
    " His last illness began about the 3rd of February, 1911. On the 14th of February, at the request of the defendant, he made a deed conveying a lot to the Methodist Church; on the next day, also at her suggestion, he made a deed conveying to her, as trustee, the dwelling house and lot in which he lived, in trust, for plaintiff. On the same day, February 15, 1911, he drew a cheek for $1000 to his nephew, William Ayers. His sister-in-law requested him to do this because Ayers had received nothing upon the death of Ms mother who was the sister of James Burge. Two days before he made the deed to plaintiff, he transferred about $4500 which he had on deposit in one bank, to the joint account of himself and defendant, to the end that if he did not recover she could draw it in her own name; this was also included by her in the inventory of Ms estate.
    There is some conflict in the evidence as to the statements made by the deceased subsequent to the making of the deed to the plaintiff. The testimony on behalf of the plaintiff touching these statements, is the basis upon which the decree was rendered. The testimony on behalf of the defendant, coupled with the claim that the testimony for plaintiff is insufficient to show any trust, is the basis upon which defendant appealed to this court. The material testimony adduced by parties in support of their respective contentions will be referred to and set out in the opinion in discussing the question presented for review.
   OPINION.

I.

BOND, J.

(After stating the facts as above).— There are but two possible legal viewpoints from which to weigh the evidence in this case ; whether James Burge made a gift of the personalty sued for in his last" sickness and apprehending death; or, second, whether he executed a trust therein in favor of the plaintiff.

The law on the subject of donations -causa mortis has been given exhaustive research by Woodson. J., speaking for this division. [Foley v. Harrison, infra.] It is essential to such conditional gifts of personal property that they should be made in reasonable expectation of death and that the giver shall transfer the property by an actual or constructive delivery, subject to be defeated by revocation during his life, or by his recovery from his existing illness or by his survival of the donee. [Foley v. Harrison, 233 Mo. l .c. 518; Walter v. Ford, 74 Mo .l. c. 198; 20 Cyc. 1228-9-30-1, and cases cited; 3 Pomeroy’s Equity Jur. (3 Ed.), sec. 1146; 1 Story’s Equity Jur. (13 Ed.), sec. 607A; Seabright v. Seabright, 28 W. Va. 412.]

There is no evidence in this record showing a semblance of delivery, either actual or symbolical, to plaintiff or to any one for him, made by James Burge, in his last sickness or in his lifetime. We may, there-, fore, direct our attention wholly to the relevancy of the evidence and its probative force, as supporting the claim of plaintiff to an executed trust in his favor to the property in controversy.

II.

The law on the subject of the creation of express trusts in personal property is clear and definitely settled. There is nothing in the Statute of Frauds which prevents the creation of an express trust in personal property, without any writings, by fit£erms ailc[ action on the part of the settlor of the trust, and such trust, when completed, is an executed one, and will be enforced in equity, although voluntary. Neither is it requisite to the validity of such a trust that a third person should be designated as trustee. For the settlor may constitute himself as trustee of a completed verbal trust of personal property, and if no trustee is named, equity will not allow such a trust to fail for want of a trustee. But in order to create a valid verbal or parol trust in personal property three things are indispensable; first, the words of the settlor must express a declaration and grant by him of an estate or interest containing all the essential elements of a trust; second, there must be a definite subject-matter of a trust; third, there must be a definite object or beneficiary of the trust. These necessary conditions to the existence of a completed verbal trust of personal property, exclude from that category, all voluntary executory agreements for the creation of such a trust, as well as all unexecuted or imperfect gifts of personal property. [Lane v. Ewing, 31 Mo. l. c. 86; Harris Banking Co. v. Miller, 190 Mo. l. c. 670; Goodman v. Crowley, 161 Mo. l. c. 663; In re Estate of Soulard, 141 Mo. l. c. 664; Knapp v. Publishers George Knapp & Co., 127 Mo. l. c. 77; Bank v. McKenna, 168 Mo. App. 254; Watson v. Payne, 143 Mo. App. l. c. 726; Godard v. Conrad, 125 Mo. App. l. c. 175; Mize v. Bates Co. Nat. Bank, 60 Mo. App. l. c. 363.]

The question in this case is not, whether the preponderance of the competent evidence shows that the alleged trust was executed, but is, whether that fact is established by evidence so clear, certain, complete and convincing, as to remove all reasonable doubt in our mind on the subject; for this is the rule when parol or verbal trusts are subjects of investigation. [Allen v. Withrow, 110 U. S. 119; Foley v. Harrison, 233 Mo. l. c. 584; Smith v. Smith, 201 Mo. l. c. 547; Reed v. Sperry, 193 Mo. l. c. 173; Curd v. Brown, 148 Mo. l. c. 92; Mead v. Robertson, 131 Mo. App. l. c. 196.]

There is no doubt from the evidence in the record that James Burge expressed affection for the plaintiff and preferred to have him rather than an older person sleep at his house in the beginning of his last illness. His sister-in-law, Mrs. Burge, was called in by the doctor who began to visit James Burge oh February 6, 1911. She insisted that her brother-in-law needed some one to sleep in the house (since he had declined to be moved to her house or the hospital), and she mentioned several names. His reply was, “He did not want anybody.” She then asked him if he would let the little boy sleep there, and he replied, “Yes, I believe I would.” She called at the boy’s home and spoke to his mother about it and on the 7th of February a bed was fixed up for him at the home of James Burge and he slept there at night until the old man died.

On the 14th of February a night nurse, Mrs. Lane, was procured, who stayed there at night until the 23rd day of February when she was discharged for alleged cause. Mrs. Burge was constantly at the home of her brother-in-law during his illness and often spent the night there, and was advised with by him before and during his sickness, and transmitted at his direction money to New York, and was directed by him, during the early part of his illness, to deposit a check which he gave her, in their joint names, and to summon his brother who lived in New York and other relatives. She was sixty-nine years of age and was his only connection who lived in Springfield. She seems to be a childless and charitable woman of excellent character. The brother and other relatives arrived in Springfield -about the 21st day of February, 1911.

Oh the 14th of February, at the request of Mrs. Burge, the deceased made a deed of a lot to the Methodist Church. On the 15th of February, at her suggestion, he made a warranty deed to the boy, then about twelve years of age, conveying the house and lot in which he lived, worth about five or six hundred dollars. Upon the suggestion of Mr. Davies, the real estate agent, that a trustee was necessary, and at the request of the grantor, Mrs. Burge was made trustee. The deed was read over and signed and the real estate agent who prepared it was told to have it recorded that day, February 15, 1911, which was done. It contained simply a grant of the property described and made no mention of anything else. The account of the making of this deed is thus given by the draftsman:

“Q. Tell the jury about what you know about the writing of that deed? A. Well, I don’t just recall the occasion of my being there and writing that deed, but I was in the room and Mrs. Burge was there and if I recollect properly the first expression, Mrs. Burge says: ‘James, if you want to do something for this boy, why not deed him this place?’ And he kind of hestitated a little. I don’t remember what he said. ‘Well-,’ he says, ‘I don’t want to be out of a home,’ And she says, ‘You know this isn’t worth probating/ And she says: ‘You ought to do something for him/ or something to that effect, and she says: ‘Why not give him this?’ Now I won’t say positive this was an expression from him, but one time I heard this. He says: ‘I want to give him some little something.’ Anyhow, that expression came in during some of these conversations and I think it was at this time. She was asking him to make a deed to a woman who had been doing his washing. It was an invaluable piece of property and I think she was asldng him to make a deed to an old colored fellow down close to ‘Happy Hollow,’ and she says: ‘He is bad off and it isn’t worth much, and make him a deed to that.’ And I think that was about all, and he consented to make this deed to this boy, and I says, ‘The boy is under age and possibly needs a trustee,’ and he might have suggested that, but anyhow he says, ‘Will Ellen do?’ and I says, ‘I guess so,’ and he says, ‘Ellen, will you act?’ and she says, ‘I don’t care,’ and I wrote the deed and put in Mrs. Burge as trustee for this boy.
“Q. He signed the deed? A. Yes, sir. He says, ‘I don’t know whether or not I can sign my name,’ and I says, ‘Well, it would be better for you to sign it than to sign by a mark,’ and there was a box close to him and he rested his arm on that and wrote his name. ’ ’

Davies then stated that James Burge after signing the deed handed it to him and said: ‘ ‘ Davies, hold the deed as long as I live, and if I get well I want it destroyed as though never made. ’ ’

No person was present when this deed was made except Mr. Davies, the real estate agent who prepared it, his wife, Mrs. Burge, and the grantor. It was finished late in 'the afternoon of the 15th of February. ■The night nurse, Mrs. Lane, states that she had returned for duty before it was signed and observed the signing and completion of the transaction. Mr. Davies and wife and Mrs. Burge testified that nothing was said by the grantor when he executed the deed about giving the boy the “contents” of the house or furniture.

On February 21st the relatives of James Burge arrived at his house, his brother Frank and wife from New York, and his nephew William Ayers and wife from Colorado. His brother was about eighty-four years old and his presence was anxiously desired by James Burge during his illness. He also attended to the investment of about $13,000, which money he had inherited upon the death of his sister in New York.

On February 22, 1911, James Burge talked about the disposition of his affairs in the presence of his relatives and some other persons. The boy’s mother, Mrs. Lane, the night nurse, Mrs. Keen, Mr. Frank Burge and Mrs. Frank Burge, were present.

For the plaintiff, Mrs. Lane, the night nurse, testified that the doctor had explained that Mr. Burge was in condition to attend to any business that he had. That she was the- “director” of the inquiries made of James Burge, and she would state what he said to the wife of Francis Burge, who would then repeat it to her husband, who was hard of hearing. She uses this language as conveying what James Burge said to her: “Well, he said to tell his brother that there was nothing here for his heirs, that it was all for the boy, and what was to be divided among the heirs was in New York.” She was then questioned, and answered as follows:

“Q. When he said that, whom did you tell? A. Francis Burge’s'wife and she would tell her husband. James and Francis was hard of hearing.. I could understand James and she couldn’t, and he would tell me and I would tell her and she would talk to Francis.
“Q. When he made that statement what did he do? A. They didn’t do anything.
“Q. Was that all there was to that? A. That is all there was to it. I told them.
“Q. What was the condition of his mind all along then? A. It was just perfect. He had full possession of his mind; yes, sir.
“Q. That was on Wednesday, the 22nd, Washington’s birthday ? A. Yes, sir.
“Q. Did Mr. Burge know what day that was? A. Yes, sir.
“Q. Tell the jury how? A. When'I was giving him his bath that morning he seemed to be so much better. I asked him if he knew what day of the week it was, and he said: ‘Wednesday.’ And I says: ‘You can’t tell what day of the month.’ And he says: ‘It is the 22nd of February, and the .greatest man that was ever born was born on that day.’
“Q. When was the first time they mentioned the property? A. The 22nd.
“Q. That was on Wednesday afternoon? A. Yes, sir. •
“Q. Have you told the whole conversation that took place Wednesday afternoon? A. I think so.
“Q. Was anything said about his property in New York? A. Yes, sir. He said the property in New York was for the heirs.
“Q. Did he mention any real estate besides the house and lot there? A. He said the contents of the building.
“Q. Did he mention any other real estate? A. No, sir; just the contents.
“Q. Did he say anything about any other, house and lots? A. Not there that day.
“Q. Did he mention any other house and lots beside that one he made the deed to? A. No, sir.
“Q. Did he say anything about money in the bank there? A. No, sir; there wasn’t any money in the bank that I know of.
“Q. He didn’t mention any? A. No, sir.
“Q. Did he tell you about what form his property was in? A. No, sir; he never said anything about that.
“Q. Did he tell you'whether or not he owned any bills of any kind? A. No, sir.
“Q. Or any notes or mortgages? A. No, sir.
“Q. Did he ever tell you how much property he had and how much money he had? A. No. sir.
“Q. Did he ever tell you how much he had given the boy? A. No, sir.
“Q. Did he ever ¡bell you the worth of the property he gave the boy? A. No, sir; said money and the contents of that house. . . .
“Q. Did Mrs. Burge say anything? A. No, sir.
“Q. Did Mrs. Francis Burge say anything? A. No, sir.
“Q. Did Francis Burge manifest any surprise? A. No, sir; they didn’t know there was a boy until I mentioned it.
“Q. They had been there a couple of days? A. Yes, sir.
“Q. How long were you there? A. I was there about half an hour.”

Mrs. Northrip, the mother of the plaintiff, states the occurrences of- the 22nd of February to have been in substance that, after the doctor had informed the relatives that James Burge did not have long to live but was in full possession of his .faculties, and that they had better have him attend to any necessary business, Mrs. Frank Burge asked Mrs. Lane to talk for James Burge and she would talk for her husband Frank Burge, as they were both hard of hearing. The witness adds:

“A. Mrs. Lane asked him if there was any business he wanted to tend to, that the relatives was there, and his brother was there, and she asked him to tell Mr. Frank Burge what he had done for this little boy. And so he says: ‘Well, this little boy, I have déeded my home house and lot and give Mm the contents of the house, is what I have give to the little boy.’ And he says: ‘What I have in Troy, New York, that goes to the relatives.’ And he says.: ‘There is notMng else here for the relatives, in Springfield.’
“Q. Did he mention anything about this money that had been taken out of the house at that time? A. No, sir; I don’t remember anything being said about the money then.
“Q. Did the nurse speak of it? A. That that was taken out?
“Q. Yes, madam. A. No, sir; not that I remember.
“Q. Did you mention it? A. No, sir; I never mentioned anything’. I just listened.
“Q. Was anything said about his other real estate, in Springfield? A. No, sir.
“Q. Do you know he owned other real estate? A. I heard it.
“Q. Did he say anything about the money he had in the bank there? A. Nothing more. All T heard him say about any money he said he had money to bear his expenses, but he pointed to some clothes there and says, ‘I want to be buried in that suit.’ And he says, ‘I have money besides what I give the boy to bear my expenses.’
“Q. Did he say where that was, or how much it was? A. No, sir; he didn’t. He left the impression as though it was in the bank, but I didn’t know.
‘ ‘ Q. Did any member of his family, his relatives, ask any question when he said there wasn’t anything in Springfield for them? A. No, sir.
“Q. They didn’t say anything? A. No, sir.
“Q. Did they manifest any surprise? A. No, ■sir; I wouldn't call it any surprise.
“Q. Nothing was said about the fact he gave the boy everything there was in Springfield? A. The relatives didn’t say anything. Mr. Burge told them he had.
“Q. I will ask you if he didn’t say there at that time he wanted his brother Francis to take his personal property and divide it up among his brothers, nephews, nieces, share and share alike? A. No, sir.
“Q. Didn’t he say it was as simple as this: ‘If you had three men and six dollars to divide, you would give two to one, and two to another and two to the third one? A. I didn’t hear that.
“Q. You would have heard it if he had said it? A. I didn’t hear him say them words. He was telling he deeded his home house and lot to the little boy and give him the contents, and says: ‘ There is nothing else here for the relatives.’ He said what was in New York was what he give the relatives, and says: ‘Divide that out between the relatives.’
“Q. Did he say how it was to be divided? A. No, sir; I didn’t hear it.
“Q. Did anybody ask him to make a will? A. No, sir.
“Q. "Was anything said about a will? A. No, they didn’t ask him to make a will. They just asked him, Mrs. Lane asked him, to explain to his brother how he wanted his business tended to.
“Q. Have you told all the conversation as far as you remember? A. Yes, sir. Mrs. Lane then left and ’phoned for Mr. Davies to come down and explain about that deed that went to the boy.
“Q. You knew at that time Mr. Davies helped rob this house? A. Yes, sir.
“Q. Why did you send for him? A. I don’t know why they sent for him. I had nothing to do with it.
“Q. Did Mr. Davies come up? A. Yes, sir.

Mrs. Luella Keen, a witness for' plaintiff, testified as to the statements of James Burge on the 22nd of February as follows:

“A. So Mrs. Lane taken her chair and sit by Mr. James Burge and told him what the doctor said, and she says: ‘What do you want the little boy to have?’ And he says: ‘I have given this little boy the house and lot and the contents.’ And she says: ‘How soon do you want him to take possession?’ And he says: ‘As soon as I am gone.’ And Mrs. North-rip was standing in the door and I turned to her and made the remark, that I heard he had done this and now I know it, I hear it for myself. And someone suggested that they ’phone for Mr. Davies, and we had a ’phone, and I says, ‘I will go with whoever goes.’ And I went and didn’t go back.’
“Q. Now, this statement of Mr. Burge in which he said he had given the house and lot and all the contents of the house to the little boy, who was present then? A. Mrs. Northrip, Mrs. Lane, Mr. Frank Burge, -Mrs. Frank Burge, Jim Burge and myself.
“Q. Did they do anything or say anything when •he made that statement? A. Nothing more than Mrs. Frank Burge explained to her husband.”

Mrs. Agnes Burge, the wife of Francis Burge, a witness for defendant, relates what took place on the 22nd of February in the following language:

“A. Mrs. Lane came in the kitchen where we were, and said: ‘Mr. Burge, James Burge would make a will.’ And we all went in the room where he was and my husband says: ‘James, do you want to make a will?’ and he said, ‘No.’ And then in a few minutes he asked that they write down something, and they got a card and pencil and Mr. James Burge says: ‘Now Frank you write this: “On the 21st day of February came my brother, Francis Burge, and his wife, Agnes Burge, to Springfield to visit a brother who has been sick for some time.” ’ And he says: ‘Have you got that down?’ And my husband says: ‘Yes, sir.’ Then he says: ‘Now I would like for you to write all the children’s names and ages.’ And Francis put that down. Then he says: ‘Sign your name.’ And Francis signed his name. And he says: ‘Where is that boy they call my nephew?’ And they called William Ayers and his wife with him. And he says: ‘I would like for you to write the children’s names there.’ And Mrs. Ayers wrote their children’s names and ages. And he said: ‘Now don’t that show a little affection for me, that you would come fifteen hundred miles to see me? And we said, ‘Yes.’ And he said: ‘Hang that up on the wall. Some time that might be framed.’ And Mrs. Lane, the nurse, took the paper and hung it up on a nail. . . .
“Q. Was that about all that was said, so far as you remember? A. At that time, yes, sir.
“Q. Was the boy, Orris Northrip, mentioned? A. No, sir; he was not.
“Q. Did you at any time have any conversation, or hear any conversation, between Mr. James Burge and anyone else in regard to the disposition of his property? A. No, sir; I did not at that time.
“Q. At any time? A. Nobody else except my husband and myself.
“Q. What was the conversation that you refer to? A. Well, he told my husband he wanted him to divide all his money equal.
“Q. When was this conversation that you speak of? A. The same day we wrote the paper.
“Q. Was it at that time or later in the day? A. No, sir; it was after dinner.
“Q. Do you know how they came to engage in that conversation? A. Well, Mrs. Lane, the nurse, came out in the kitchen and she said: ‘Now, if you have any business you want to talk over with Mr. Burge you better do it now, because he is in as good condition now as he ever will be, and the doctor thinks if the water reaches his heart he will die, and I want to be there when you talk to him, because he has told me his affairs and I want to be there.’ And she turned and went in the room, where he was sitting in the chair, and so far as I know just my husband and myself and Mrs. Lane was all that was there.
“Q. Did your husband stand up there or sit down by him? A. He sat down by.him and drew the chair close.
“Q. What was the conversation had there? A. Well, he told Francis he wanted him to divide his money equally. It went to Ms brothers, nephews and nieces. He wanted it divided equally.
“Q. Did he explain what he meant by equally? A, Later in the conversation he did.
“Q. Just tell the jury what he said? A. Well, he had been talking something about the money, and he said: ‘Now, Frank, it is as simple as if you had three men sitting there and you had six dollars and give two dollars to one, and give two to that one and two to the other one.’ And he says: ‘Now Frank, if you don’t understand, Mr. Davies knows it all.’
“Q. Did Mrs. Lane say anything? ' A. Mrs. Lane stepped around from his rear where she had been standing. She was rubbing or stroking Ms forehead, and she stepped around to the side and says: ‘Mr. Burge, do you want to make the boy an'heir?’ Then he says: ‘Yes.’ And I says: ‘James, how much do you want to give the boy?’ And he says: “Oh‘if you have ten dollars left, or one hundred dollars left, can’t you give it to him?’ And there was no answer made. Then Mrs. Lane says: ‘Do you want the boy to have the effects here?’ and motioned her hands around that way (indicating), and he said, in a tired kind of voice: ‘If he cares to have them.’ And then she asked: ‘How soon do you want them to take possession? Do you want them to take possession right away?’ And he says: ‘If they want to.’ Then he says: ‘Who is this talking? And she and I both said: ‘The nurse.’ And he said: ‘Oh! the nurse,’ and he didn’t say anything more, and stopped. That was the end of the conversation.
“Did she say anything about the contents of the house further than you mentioned? A. No, sir.
“Q. Did she say anything about having previously given the boy anything? A. No, sir; the boy’s name was not mentioned, and I never saw him speak to the boy while I was there, and I was there five days, and never saw him speak to the boy.
“Q. Did you ever hear him mention his name other than when Mrs. Lane called his attention to the boy? A. I have no recollection of hearing it.
“Q. Did you hear other or further conversation about the disposition of the property? A. Not about the disposition of the property, but I heard him say he wanted my husband to give his boys their share of the money and let them put it into their business and use it, and not to do as he had done. And he said: ‘Let them build a good business with it and carry my name down decently and honorably, and not let my name die out.’ ”

Francis Burge, age eighty-four, the brother from New York, states the occurrences on February 22nd to have been as follows:

“Q. Was there any talk about the property that day? A. He spoke of it. He says, ‘Frank,’ he always called me Frank.
“Q. Do you remember how that conversation came up? A. He brought it up himself.
“Q. Just tell the facts? A. He says: ‘Frank, I want you to divide all my money up between brothers, nephews and nieces. Give your boys theirs now and let them put it in their business, use it and enjoy it and build up a good business. Do not do as I have done, but., that money will make them decent and honorable. ’
“Q. Who was present at that conversation? A. My wife was there part of the time, and I suppose Mrs. Lane came in sometime afterwards. I don’t remember of her being there when James told me that. He brought that subject up without my speaking to him.
“Q. Did he say'what money was to be divided? A. He says: ‘Ellen has the money. If you don’t understand Frank Davies knows it all. It is as simple as it can be; if you had sis dollars and three men to share it, give two to this one, two to that one and. two to that one.’ That was his sentiment.
“Q. Was that the time Mrs. Lane would do the talking with James, and your wife for you? A. When they was speaking of that was the time Mrs. Lane broke in and he thought Mrs. Burg'e was talking and must have discovered the difference in the voice, and says: ‘Who is that talking?’
“Q. What did Mrs. Lane say? A. She says: ■‘Do you want the boy to have the effects?’ stretching out her arms this way (indicating), and James turned his head and looked to see what there was in the room, and says, ‘Yes,’ referring to what was in the room there, the furniture.”

This is the substance of all the testimony touching the declarations of James Burge during his illness.

III.

The testimony did not present issues necessary to be submitted to a jury as in actions at law. It would have been correct practice for the trial W^g® to have submitted particular issues of fact to the jury whose verdict might have assisted him in making his own finding of the facts. But he should not deny the request of the defendant for submission of specific questions of fact, and then relegate the whole controversy to the jury as he did. “General instructions to'jurors or declarations of law when given in equitable actions serve no other purpose than to indicate the mind of the judge sitting as chancellor and the theory of equity applied by him. The verdict of juries in such cases is only advisory and might be wholly disregarded by the trial judge. The questions ordinarily presented on appeal in equity cases are, what does the preponderance of the competent evidence show? But in exceptional cases like the present, the sole question is whether the express trust alleged in personal property is sustained, not merely by the greater weight of the evidence, but by - an amount of credible testimony sufficient to dispel any reasonable doubt- in the mind of the court, as to the existence of a completed trust in reference to definite personalty and in favor of a certain beneficiary.

It is clear from the evidence in this record that the whole claim of plaintiff of a trust in the money and securities for which he obtained judgment below, is rested solely on the statements of his mother, the night nurse, and Mrs. Hillman and Mrs. Keen, two neighbors who called in to see the sick man during his last illness. The assistant night attendant, and son of Mrs. Hillman, was not called to testify. Not one of these four undertook to state anything said by James Burge before or at the time he signed and delivered the deed conveying the house and lot to the plaintiff. One of them, the night nurse, says she was present when the deceased wrote his name to the deed and acknowledged its execution. But she does not testify to a single expression made by him at the time, as to his intentions or as to the purpose of the deed or as to his purpose to make any other donations to the plaintiff. She says she first learned his intentions in that matter from what he said to her on the next morning when she was about to leave the house.

It is not claimed and there is no evidence in this record to sustain such a claim, that the deceased, James Burge, was at the time of the making of the deed, on February, 15, 1911, or at any other time during his illness when he spoke of his business affairs, lacking in mental power or full comprehension of all the matters referred to by him, and of his relations-to all persons present. Clearly it was not competent by his subsequent declarations to alter the terms of his previously executed and delivered and recorded deed, or to show that it did not include all that he intended to convey, in the absence of any fraud or imposition upon him in the matter of the execution of the deed, of which there is no evidence whatever in the present record. But even if this evidence of his admissions made on the following morning to the night nurse, and substantially the same admissions to' the other three witnesses for plaintiff, should be received as indicating that he had made such declarations at the time of the deed or subsequently, the question would still remain, whether the testimony as to such admissions so far outweighed the evidence contradicting them contained in this record, as to leave no reasonable doubt of the fact of .the making of such admissions'? We are unable to give that weight to the testimony for the plaintiff.

If there ever was a time when it would have been natural for James Burge to explain his intentions as to the plaintiff, it was when he made a deed of gift to him. His real estate agent was told to prepare the deed and after it ha'd been written it was read over and signed by the grantor, who then directed it to be recorded that afternoon. During the whole transaction, and after its consummation, he did not utter a word indicating that he desired to give the plaintiff anything beyond the house and lot. The wife of the real estate agent was present, Mrs. Burge was present and the night nurse came in before he read over and signed the deed, and observed him doing these things. Yet he gave no hint, at that time, to any of these persons, that he desired to give the boy about $32,000 in money and notes then hidden in his house. On the contrary, within three 'days after the deed, he caused all of his money to be taken out and deposited in the bank. If James Burge had designed to make the plaintiff a gift of all his money and bonds still secreted in his house, and had been in full possession of Ms mental faculties, as is undenied, Ms failure to mention that purpose on the very occasion when he was giving him a deed to his house and lot and when he knew that a part of the hidden money had been taken from the house, is incomprehensible. And when it is borne in mind that he did not rest until he got the remainder of tMs money taken away by Saturday the 18th, it is simply incredible that he intended to create a trust in favor of the boy by transferring that money as the “contents” of the house on the 15th of February, 1911, and making himself the trustee thereof until the boy, or some one for him, should take possession of the house and “contents” after Ms death.

His action in causing the removal of the money before and after the deed, makes it clear to a demonstration, that he did not intend that there should remain in his house at his death any portion of the money and securities which he had previously kept there and in the workbench. We conclude that there is an utter failure of proof in this record that James Burge designed by using (if he did use) the words “contents” “or when I say contents 1 mean everything,” to vest any title in equity in this plaintiff to the money and securities which had been taken from his home or which he caused to be taken from his house within three days after it is testified he used that language. For if he had such intention he would not have defeated it by revealing the secret hiding places, before and after making the deed and causing these ‘ ‘ contents ” to be deposited in the bank without providing that they should be turned over to plaintiff or some one for Mm.

We attach still less weight to the “terms” said by plaintiff’s witnesses to have been used by James Burge on the 22nd of February, 1911. At that date not a dollar of his hoardings remained in his house. His mind at that time was “perfect” (according to the statement of the night nurse). He was a clearheaded man in his business dealings. His fortune had come by toiling, saving and loaning his earnings on mortgages. He had full cognizance of the amount, nature and location of his estate. He kept the bulk of his securities and cash in this house and in his workbench, and about nine thousand dollars on deposit in Springfield banks, and about thirteen thousand invested in New York in charge of his brother. His brother and his brother’s wife, and his nephew and his nephew’s wife, had arrived at his home the night before. He was deeply touched by their coming to visit him, in fact his brother sat by his side on the 22nd of February and held his hands while he was expressing his wishes as to the disposal of his estate. He required his brother to make a memorandum of the names of all of his children and the names of his nephew’s children, and the night nurse hung it on the wall where he said it could be thereafter framed. The testimony of his brother, his brother’s wife and his sister-in-law, Mrs. Burge, is set out in full above. Their account of what was actually said and done on that occasion bears every mark of truth and naturalness, and is in our opinion substantially correct. The statement of the nurse, to the contrary, and to the effect that he then said that his property in New York was to go to his heirs and every thing he had in Springfield was to go to the plaintiff boy, does not impress us with verity or satisfy our minds that any such declarations were made by him. It could only have been prompted by dislike for his brother and nephew and niece of which there is not the faintest evidence in the record. We do not believe that he made statements so intrinsically improbable as the' one testified to by the night nurse. This witness was shown to be without reputation for chastity and twice divorced and suspected of having been indiscreet in connection with a son of Mrs. Hillman, who was assisting her in waiting on the sick man. She was discharged from service on the 23rd of February for officiousness if not misconduct. Her version of the affair does not show candor, sincerity or disinterestedness. When she was questioned about her knowledge of the case by the attorney for the defendant after the suit was brought, she denied knowing anything about it and refused to give any information whatever. Her story as a whole is an iteration and reiteration of alleged general and indefinite statements of the deceased which are not such as are likely to have been uttered by a man of his habits of life and clearheadedness. According to her testimony he said that his property in Springfield belonged to the boy and Ms property in New York belonged to his blood kin. Yet he specified neither, although he had a perfect knowledge of the kind and extent of the property in lands, notes, money and bank deposits belonging to himself and where deposited and in what names. If her statement is true he made no reference whatever to lots owned by Mm in Springfield, nor the money in the bank, and did not call on the person in charge of it to hold it or turn it over to the boy. Nor did he suggest the making of a deed to three other lots or tracts of land owned by him in that city, although on the 15th of February when he did agree to give the boy the residence, he at once called his real estate agent to come out and prepare the deed, and read it over carefully, signed it, acknowledged it and ordered it tó be recorded. For these reasons we find it impossible to credit the account given by the night nurse and other witnesses for plaintiff, of the sayings of James Burge on the 22nd of February.

On the other hand, we believe that the account given by his brother and brother’s wife, and his sister-in-law, of the events of that day, is in accordance with the facts. His sister-in-law was a very old woman of exemplary life and character. She had donated a hospital of fifty rooms to the City of Springfield. She had never shown the slightest indication of self-seeking in her conduct towards James Burge. She seems to have had ample fortune and to have had a genuine regard for her brother-in-law and to have treated him with great kindness and wholly without any selfish motives. His brother was his chief adviser in his business matters in New York and the two had a strong affection for each other. The statements which he made to these witnesses are clear, simple and direct' and such as are not unnatural to a man of his type, close fisted and penurious in his dealings, but plain and simple in speech, who was telling his brother how his leavings should be disposed of in simple terms and in the most inexpensive manner.

IV.

Neither have we any confidence in the statements made by the night nurse and Mrs. Northrip, that he said to them on Saturday the 18th of February, in the absence of all other persons, that his house had been robbed by his sister-in-law and the real estate agent and that the boy would have trouble but in the end would get the better of them. The improbability of these statements is 'clear to our minds from the fact that thereafter and up to the time of his death and esp"ecially on the 22nd of February, he showed the fullest trust in his sister-in-law and his real estate agent; and after explaining to his brother the simple process of dividing the money and effects which they had removed, so that his brother’s children and his nephew’s children should share equally with their fathers, he said to his brother, that Davies, the real estate agent, and Ellen, his sister-in-law, knew exactly what he wanted done with it.

V.

We see no escape from the conclusion that the alleged declarations claimed by plaintiff’s witnesses to have been made by James Burge were not proven by testimony so clear and cogent as to banish all reasonable doubt of its truthfulness from our minds. For that reason, if for no other, plaintiff’s case must fail. But we do not wish to be understood by deciding this case on the insufficiency of the proof, that we impliedly admit that a completed verbal trust would have been established in the property sued for, if the words or admissions upon which it was rested had been sustained by that degree of evidence prescribed by law. If that point had been reached, we would not concede that the vague, equivocal, uncertain terms attributed to James Burge would have created a verbal trust in praesenti to the property in suit in favor of the plaintiff. There' is no meaning which can be rationally attached to the alleged admissions or declarations of James Burge, which necessarily carries the idea of an intention and act on his part of present transfer of the equitable title to his money and other personal property to the plaintiff. Without that, self-evidently no completed trust enforceable against him or his estate could arise under the principles of equity governing the creation of trusts in personalty by express oral grant.

The judgment in this case is reversed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    R. J. WADDELL INVESTMENT COMPANY v. EMMA PORTER HALL, Appellant.
    Division One,
    March 3, 1914.
    1. SEWER: Specifications: Preparing and Filing. Before Passage of Ordinance. The tax bills issued in payment for the construction of district sewers are not void for the mere reason that the specifications were not prepared and on file prior to the passage of the ordinance providing for the establishment and construction of the sewers. Neither the charter nor the ordinances of Kansas City require the specifications to be made out and filed prior to the passage of the ordinances authorizing the work. To hold that the charter provision requiring the ordinance to fairly outline in general terms the “dimensions, material and character” of the sewer demands that the minor details of the proposed work should be prepared and filed before the ordinance is enacted would be a narrow construction, technical without substance. [Disapproving, on this point, language in Dickey v. Holmes, 109 Mo. App. 724, and cases following it.]
    2. -: -: Ordinance. If the ordinance authorizing the public improvement in general terms designates and describes its “dimensions, material and character,” either by the language of the ordinance or by specific reference to general plans and specifications then on file, the ordinance is valid. Nor need the plans and specifications then on file set forth the minute details of the work which are to be thereafter written into the contract. These minute details should be prepared and filed before the bidding, but need not be on file at the time the ordinance is passed.
    Appeal from Jackson Circuit Court. — Hon. Hermann Brumback, Judge.
    Affirmed.

      Bowersock, Hall & Hook for appellant.
    (1) If the specifications were not prepared and on file prior to the passage of the ordinance, the tax hills, sued on, are void. Sec. 10, art. 9, Kansas City-Charter of 1889; Dickey v. Holmes, 109 Mo. App. 721; Dickey v. Orr, 132 Mo. App. 416 ; Independence to use v. Knoepker, 134 Mo. App. 601; McCormick v. Moore, 134 Mo. App. 669; Biehardson v. Walsh, 142 Mo. App. 328; Kneeland v. Milwaukee, 18 Wis. 411; Wells v. Burnham, 20 Wis. 112; Bicketson v. Milwaukee, 105 Wis. 591; State ex rel. v. Benzenberg, 108 Wis. 435; Bridge Co. v. Durand, 122 Wis. 96; Buckley v. Tacoma, 9 Wash. 253; People v. Board of Improvement, 43 N. Y. 227; Moyet v. Pittsburgh, 137 Pa. St. 548. (2) The question of whether or not the specifications were prepared and on file prior to the passage of the ordinance, should have been submitted to the jury. Parker-Washington Co. v. Dennison, 249 Mo. 449;' Koemer v. Car Co., 209 Mo. 141; Mathais v. O’Neill, 94 Mo. 520; Blodgett v. Schaffer, 94 Mo. 652; State y. Taylor, 126¡ Mo. 531; Walker v. Barron, 6 Minn. 508; State v. Bailroad, 52 N. H. 528; Wigmore on Evidence, sec. 92.

      W. R. James and Scarritt, Scarritt, Jones & Miller for respondent.
    (1) The construction ordinance clearly prescribes the dimensions, material and character of the sewer, as required by the Kansas City charter. Excelsior Springs to use v. Ettenson, 120 Mo.-App. 226; Whit-worth v. Webb City, 204 Mo. 579; Porter v. Paving Co., 214 Mo. 1; Dickey v. Porter, 203 Mo. 36; Sheehan v. G-leeson, 46 Mo. 104; St. Joseph to use v. Owen, 110 Mo. 455; Joplin ex rel. v. Hollingshead, 123- Mo. App. 602; Platte City to use v. Paxton, 141 Mo. App. 181. (2) Neither the Kansas City charter nor the revised ordinances required the filing of the specifications until the time of the advertisement for bids. And there is not a scintilla of evidence that the specifications were not on file before and during all the time bids were being advertised for. Excelsior Springs to use v. Ettenson, 120 Mo. App. 215-; Paving Co. v. Ullman, 137 Mo. 568; Construction Co. v. Coal Co., 205 Mo. 72; St. Joseph ex rel. v. Landis, 54 Mo. App. 315; Dickey v. Porter, 203 Mo. 37; McCoy v. Randall, 222 Mo. 24. (3) The Court of Appeals decisions cited by appellant considered. Whitworth v. Webb City, 204 Mo. 579; Dickey v. Porter, 203 Mo. 1; Porter v. Paving Co., 214 Mo. 1; McCormick v. Moore, 134 Mo. App. 674; Pox v. Schoenemann, 52 Mo. 348; Grist v. Construction Co., 224 Mo. 369; Johnson v. Duer, 115 Mo. 381.
   GRAVES, J.

This is an action to enforce the lien of certain tax bills, issued by Kansas City in part payment of the cost of a district sewer, against certain described city lots in said city owned by the defendant. The petition is in usual form and further note thereof may be omitted. The improvement for which these tax bills were issued was authorized by Ordinance No. 16521, which this court had under review in Porter v. Paving & Construction Co., 214 Mo. 1, whereat will be found a thorough outline of the ordinance and the work done thereunder. In the Porter case, supra, it was sought in equity to have the tax bills canceled as clouds upon the title of Porter’s property in Sewer District No. 227, the same district involved in the instant case. The validity of the tax bills in the Porter case was affirmed by this court.

Defendant in this case seeks by answer to inject new and different propositions, which can best be noted in connection with the points made. Suffice it to say at this time that upon a trial had the trial court, upon all the evidence, directed a verdict for the plaintiff, which was accordingly found in a sum sufficient to measure up to the appellate jurisdiction of this court, and from a judgment entered upon such verdict the defendant has appealed. The charter provision involved in this suit is section 10, article 9, which reads:

“The city may, with the approval of the Board of Public Works, from time to time, cause a district sewer or sewers to be constructed in any sewer district heretofore or hereafter established whenever the common council may deem such sewer necessary for sanitary or other purposes, and such sewer or' sewers shall be of such dimensions, material and character as shall be prescribed by ordinance, and any district sewer heretofore or hereafter constructed may be changed, diminished, enlarged or extended, and shall have all the necessary laterals; inlets and other appurtenances which may be required.”

Under this charter power, the city passed Ordinance No. 16521, which is the ordinance involved in this suit. This ordinance is quite long, but by cutting out certain descriptive portions it can be shortened, and had best be presented. It reads :

“An Ordinmce to Establish and Cause to be Constructed District 8eivers in District No. 127.
“Be it ordained by the Common Council of Kansas City, Missouri.
“Section 1. That district sewers be and the same are hereby established and shall be constructed in Sewer District No. 127, which shall consist as follows, to-wit:
“A lateral sewer No. 12, beginning in the alley between Charlotte street and Campbell street twenty feet north of the south line of District No. 127; thence north along the center line of said alley to the center of Twenty-eighth street with an interior diameter of eight inches; thence north along’ the center line of said alley to a point five feet south of the south line of Cirauman Avenue; thence east a hundred and seventy-eight feet; thence north and twenty feet west of the east line of Charlotte street to a point on the south line of lot ten, block two, Hill Crest, produced from the east; thence east to the southeast corner of said lot ten, block two, thence northeasterly eighty-five and seven-tenths (85.7) feet to a point on the northwesterly line of lot six, block two, aforesaid; thence northeasterly to the northwest corner of lot four, block two, aforesaid; thence north to the center of Twenty-seventh street, at its intersection with the center line of the alley between Campbell street and Charlotte street, produced from the north; thence north along the center line of said alley to the center of Twenty-sixth street, with an interior diameter of twelve inches; thence north to an outlet into lateral Sewer No. 13, at the intersection of said alley with the center line of Twenty-fifth street, with an interior diameter of fifteen inches.
[Here follows the description of Lateral Sewers 13 and 14, which gives their respective size as three feet and eight inches in interior diameters.; Sewer 13 being three feet, and Sewer 14 being eight inches, in diameter.]
“Said sewers shall have all necessary manholes and flush tanks with their necessary connections and shall be paid for in special tax bills against and upon the land in said sewer district as provided by law, which work the common council and Board of Public Works deem necessary to have done for sanitary and drainage purposes.
“Section 2. All said sewers twenty-four inches and under in diameter shall be constructed of vitrified clay pipe; all of said sewers, three feet inside diameter shall be constructed of hard burned brick laid in hydraulic cement mortar, except in middle section of the inner ring of the invert which shall be constructed of vitrified brick laid in Portland cement mortar.
[Here follows the location of the several manholes with exactness and great detail.]
“Said manholes shall conform in detail to plans on file in the office of the Board of Public Works marked Style ‘C’ and approved June 14, 1898..
“Plush tank with the necessary water connections for the purpose of flushing and cleansing said sewer shall he constructed as a part of or appurtenance to said sewer, at the south end of Lateral Sewer No. 12.
“Said flush tank shall conform in detail to plans on file in the office of the Board of Public Works marked ‘approved’ and dated May 9, 1893.
“Lamp hole for the inspection of said sewer shall be constructed of eight-inch vitrified clay pipe immediately north of said flush tank.”
[Here follows the minute locations of the several catch basins.]
“Said catch basins shall conform in detail to plans on file in the office of the Board of Public Works marked Style ‘C’ and approved June 14, 1898-.
“Section 3. Said sewers shall conform in detail to plans and specifications prepared for the construction of said sewers, said plans on file in the office of the Board of Public Works marked ‘approved’ and dated February 23, 1901.
“Section 4. All ordinances or parts of ordinances in conflict with this ordinance are insomuch as they conflict with this ordinance hereby repealed.”

This sufficiently outlines, the situation for a discussion of the questions raised by defendant’s answer in the case, and in the brief in this court.

I. Defendant thus outlines- the first contention made in this case: “If the specifications, were not prepared and on file prior to the passage of the ordinance, • the tax bills sued on are void. ’ ’

We have not set out the answer of the defendant, but it will suffice to say that it raises this question. There may be expressions from the appellate courts of this State which sustain this view of the law, but this court has never given such a narrow construction to the law governing proceedings of the kind involved here. In Gist v. Construction. Co., 224 Mo. l. c. 379, this court, In Banc, through Lamm, J., purposely undertook to express our disapproval as to some of the extremely narrow and technical rulings in cases involving public improvements. That it may be known that we are still of that mind, we will leave that opinion to speak our views in this case, because it outlines the proper rule of construction. Lamm, J., there said:

“It is a fundamental proposition that laws, whether state or municipal, are presumed passed in a spirit of justice and for the welfare of the community. It follows they should be so interpreted, if possible, as to further that purpose. Therefore, while laws and ordinances anent the improvements of streets should be subjected to reasonable analysis and construction, yet they should not be subjected to an overnice analysis or to any unfriendly construction, springing from the notion that the contractor is prone to mischief or that street improvements are evils to be judicially circumvented. This, because it will be found that such view is bound to end in hardship, on the abutting owner as well as the general public. We take it as a self-evident truth that the more technical and sour courts become in interpreting street improvement contracts, ordinances and laws, the more danger and moral hazard to the contractor creeps into every such improvement. So (as in insurance) the more the danger and moral hazard, the higher the bid of the contractor for his own se¡lf-protection in discounting that danger and moral hazard. Now, the higher his bid, the greater the cost for a given improvement. No one would deny that street improvements are a necessity •of modern city life and that all streets and alleys must be eventually graded and paved. In that behalf every citizen of a town must at some time dance and pay the fiddler. Hence, he has an abiding and substantial interest' in having ordinances, laws and contracts relating to such improvements construed with the utmost fairness and justice and without such nice particularity and overrefinement as unduly increase the risk of the contractor, drive up¡ his hid and (as surely as night follows day) end in burdening those who have the bills to pay. In other words, those who live in towns are vitally interested in a situation producing the lowest responsible bidding in street improvement and inviting the most efficient competition; therefore courts can do no better service than to aid that happy consummation with every allowable art and reason of the law. If, now, instead of a spirit of friendliness to such improvements, contracts, ordinances and laws (that is, assuming they are legal and just until the contrary appears), courts assume a frosty attitude, searching as with a lighted candle for technicalities, inadvertences and minor defects, not of substance, and assigning- them an office in overturning an improvement scheme and defeating the collection of tax bills, then the hazards of street contracting are enhanced, competition is stifled and the price bid is swollen to the extent that the extra hazard is met with extra pay.”

Neither the charter of Kansas City nor the ordinances thereof required the specifications of the work to be done to be made out and filed prior to the passage of the ordinance authorizing- the work. The defendant has introduced in evidence some sections of the Kansas City ordinances in force at the time, and among them is section 877, which reads:

“Before advertising- for bids for doing any of the work mentioned in the first section of this chapter, the.city engineer shall make out detailed plans and specifications for the work to be done, and keep the same on file in his office for information of all desiring to bid on the work.”

We have taken the trouble to get the Charter and Revised Ordinances for 1898', in order that we could gather more fully the connection. This section 877 is one of nine sections under article 7 of chapter 14 of the Revised Ordinances of 1898. Article 7 is entitled “Sewers, Drains and Culverts,” and, as said, said article contains but nine sections, all of which relate to the subjects indicated by the title. The first section of the article is section 874, and it reads:

“Whenever any ordinance shall provide for the construction of any public sewer, district or joint district sewer, drain or culvert, the same shall, unless therein otherwise specially provided, be deemed and taken to require that all excavation and materials necessary for the work shall be done and furnished by the contractor or contractors; that all necessary laterals, inlets and other appurtenances shall be constructed and that, after the work of constructing the sewer proper shall be completed, the excavation over and around the same shall be filled in with earth or stone by the contractor or contractors, all as part of the work, so as to protect the same and leave the surface of streets, avenues, alleys, lots and other places, over the same, level and safe, and in as good condition as before the work was commenced.”

Section 875 provides for advertisement for bids. Section 876 relates to the letting of the contracts, and among other things says that such contracts for sewers shall “be let, executed and approved, in all respects, as far as practicable, in the same manner as contracts for grading are let, executed and approved, when the cost of the grading is to be paid for in special tax hills.” Then follows section 877, quoted above.

Reverting then for a moment to matters pertaining to grading streets, we find the same idea expressed, i. e. that the specifications are ta follow the passage of the ordinance and not precede it. Thus we find in this record before us,'introduced by the defendant, section 811 of said Revised Ordinances. Said section 811, so far as pertinent to our question, reads:

“When an ordinance shall provide for the doing of any work mentioned in the second section of article 9, of the city charter, the city engineer shall, as soon as practicable thereafter, provide the necessary plans and specifications, which shall, in cases where a contract must be let to the lowest and best bidder, prescribe a time within which the work shall be finished, and the amount of security to be given by the contractor for the performance of the work.”

So that it is clear that the legislative department of the city government has never construed the city charter to require specifications of the work to be on file before the ordinance authorizing the work was passed. By the word specifications, we mean the instrument which gives all the minor details of the proposed work, and which should be given before bids are taken for the work. The city charter, when it used the words “and such sewer or sewers shall be of such dimensions, material and character as shall be prescribed by ordinance, ’ ’ never intended that the ordinance should set out all of the details necessary to go into a proper contract for the performance of the work. Such provision of the charter requires that the ordinance should fairly outline in general the “dimensions, material and character” of the sewer, but it was never intended that the ordinance should go into all the detail which should properly go into a contract for the work, or into such specifications, as would properly enlighten bidders.

We have purposely set out at some length the ordinance involved in this case, and we have no hesitancy in saying that in it is a substantial compliance with the charter of the city. But reverting to the necessity of the filing of the specifications before the enactment of the ordinance. There is language in Dickey v. Holmes, 109 Mo. App. l. c. 724, and in some cases following it from that court, which lends some countenance to the contention of counsel, but if that is so, those cases should not longer be followed. It will be noticed that street improvements (where tax bills are to be used as tbe method of payment) are put upon the same basis, by the legislative power of the city, as public sewers. In both instances the specifications are required to be filed before the bidding occurs.

Under the rulings of this court we take it that if the ordinance authorizing the improvements in general terms designates and describes the “dimensions, material and character” of the proposed public improvement, either by the language of the ordinance or by specific reference to general plans and specifications then on file, the ordinance is valid. Nor would the plans and specifications then on file have to go into the minute details of specifications intended to give light to bidders and to be thereafter written into the contract. These latter should, as the ordinance says, be prepared and filed before the bidding, but need not be on file at the time the ordinance is passed. Thus, in Asphalt Paving Co. v. Ullman, 137 Mo. l. c. 571, this court said:

“The specifications which were to be found in the engineer’s office, when the ordinance was passed, were plans and profiles of the work required on Sixth street, with blank forms which gave the particulars demanded by the engineer (in the doing of the class of work here in question) in the same terms as those which appear in the contract (finally made with the city by the plaintiff) under the head of ‘Specifications.’ The latter contained elaborate directions for the work from beginning to end, and thus made the intent of the ordinance definite and clear. The specifications defined what was meant by the ordinance as to the subject of curbing, as well as concerning all other branches of the projected improvements. Curbing was, nevertheless, mentioned in a general way (as an item of the improvement) in the fifth section of the ordinance. The reference in the ordinance to the specifications in the office of the engineer was quite sufficient as a description of such work. It was not necessary for all the details of the working plan to be developed in the ordinance itself. [Becker v. Washington (1888), 94 Mo. 375.]” To like effect in Construction Co. v. Coal Co., 205 Mo. l. c. 72, whereat Gantt, J., said:
“Defendants insist that the award of the contract was void because no specifications had been made by the city engineer, and no time had been prescribed in which the work should be finished, and the amount of security to be given by the contractor had not been fixed at the time the city engineer advertised for bids. It is confidently asserted by counsel for the defendant that no specifications had been made by the city engineer prior to the awarding of the contract and advertisement for bids, this is based upon the testimony of a witness Maloney, who was not at that time in the employ of the city engineer and who it appears from his cross-examination had never examined these proceedings until probably a year before the trial of this cause, and he testified that the plans were on file before the ordinance was passed, but that there were no specific specifications until about four days prior to the opening of the bids; whereas Mr. Harper, the chief draftsman in the engineer’s office, testified that the specifications were made just as soon as the ordinance was passed, and that the general specifications and the details had all been prepared previous to that time, except of course- the amount of the security, which was regulated by the amount of the bid. He testified further that at the time the notice to contractors began to be published in the city papers, these plans and specifications had been made and were there on the desk in the office for contractors to examine. The ordinance, section 990 of the Revised Ordinances, provides that when any ordinance shall provide for the doing of any work mentioned in the second section of article 9 of the charter, the city engineer shall, as soon as practical thereafter, make out the necessary plans and specifications, which shall, in cases where the contract must be let to the lowest bidder, prescribe the time within which the work shall be finished, and the amount of security to be given. Maloney testified that the time within which the work was to be completed was put into the specifications as soon as they were prepared, but that the amount of security to be given by the contractor was not inserted in the contract until after the work was let. Both he and Mr. Harper testified that the amount of security was filled after the contract was awarded and at the time the bond was made, that the universal custom of the office was to require the amount of security to be equal to the total cost of the work. We think it is clear that the time within which the work was to be completed was inserted in the specifications before any bidding was made upon the contract, and that the fixing of the amount of -the security upon the basis of the contract after it was let was a substantial compliance with the charter. The evidence of Maloney, however, as to all of these matters, according to his own statement, was largely if not entirely hearsay, and ought to carry very little weight.”

Section 990 of the ordinance then reverted to is practically section 811 of the ordinance here in question. In the later case of Dickey v. Porter, 203 Mo. l. c. 37, the same jurist said:

“And yet it is now insisted that the whole proceeding is void because the ordinance itself did not fix the thickness of the sewer pipe. The evidence discloses that the contract and specifications were prepared before the letting of the work was done and the contractor, Ford, testified that when he went to the office of the city engineer to bid on the work, he found the specifications and plans and the profiles. It also appears in evidence that the contract to be executed by the successful bidder was also prepared and was on file for the inspection of the bidders before the bidding was done. The contract entered into in this case by Ford provided that ‘the pipes shall be straight, smooth and evenly burned, thoroughly sound and vitrified well glazed, free from lumps or other imperfections, of uniform quality and thickness, and shall not vary more than one-half inch from a true circle. The thickness shall be of twelve inch pipe, not less than one and one-eighth inches; of fifteen inch pipe not less than- one and one-fourth inches, and of eighteen inch pipe, not less than one and one-half inches, and of twenty-one inch pipe, not less than one and three-fourths inches.’ Not only did Mr. Harper, who had been in the office of the city engineer for twelve years, and Mr. Ford, the contractor, testify that the specifications and contract were prepared before any steps were taken for advertising for bids, but the contract on its face shows that the contract and specifications were embodied in the same instrument and it was on these specifications and this contract that the bid was made. The evidence further tends to show that it had been the uniform custom and practice to use but one character of sewer pipe for sewers of this dimension during the twelve years, and that was that it should be double strength vitrified pipe. So far then as the thickness of the sewer pipe is concerned, there was ample evidence that it was. specifically named in the specifications and there is no pretense that the contractor bid on double strength sewer pipe, and put in an inferior quality. In view of the decisions- of this court in Sheehan v. Gleeson, 46 Mo. 100, and City of St. Joseph to use v. Owen, 110 Mo. 445, we are of the opinion- that the neglect to describe the thickness of the sewer pipe in the ordinance does not and should not invalidate this contract, especially so in view of the fact that the circuit court was not asked to declare the proceedings void because the thickness of the sewer pipe was not specified.”

Judge Gantt cites with approval Sheehan v. Gleeson, 46 Mo. 100. In that case, at page 104, Bliss, J. said:

“But defendant’s counsel criticise it as not being sufficiently specific, and insist that too much discretion is still left to the engineer. We should first premise that, as a matter of necessity, some discretion must be left to the executive officers. It would be difficult for ordinances to specify every particular of a work, but they must be more or less general, and must take many things, for granted in the history, geography, and topography of the place, and in the arts called into requisition by the improvements ordered. And we should further premise that an ordinance may lack desirable precision, and still may so' provide for the manner in which an improvement shall be made, and be such a compliance with the law, although a loose one, that .the courts would not be authorized to invalidate the action of the city officers under it. It is not every irregularity or omission that goes, to the substance of a proceeding.
“Counsel object that the precise thickness and depth of the curbstones, their material and manner of dressing, are not fixed by the ordinance. I can see no plausibility even in either of the objections except'the first. The ordinance fixed a minimum of thickness and depth, and the contract shows that the curbing was built of precisely those dimensions. It certainly was a direction in relation to the manner of building it, though justly subject to criticism as not being sufficiently specific. Though an irregularity in the action of the common council, yet it was action in the right direction, and we should not be warranted in holding the proceedings under it as wholly unauthorized. The nature and manner of dressing of common curbing in the city is as well understood as the meaning of the word itself, and like a hundred other particulars that should be noted in a contract, would unnecessarily encumber an ordinance

The italics are ours, and the language used is indicative of the very distinction we have in mind, i. e., that the ordinance on its face or by reference on its face to general plans on file, must fairly cover the “dimensions', material and character” of the proposed work, but the details of specifications may come later, but before the bidding and the contract. Judge Gantt in the Dickey case, supra, likewise cites with approval the case of the City of St. Joseph to use v. Owen, 110 Mo. 445. In this St. Joseph case, Judge Sherwood, at page 455, makes these pertinent remarks:

“The first section of the ordinance describes the dimensions and material of the sewer pipe to be used, but gives no such description as to the manholes and inlets called for in that ordinance, and this is urged as a serious defect. In respect to this, it may be said that, though the charter requires that the size of the sewer to be constructed shall be prescribed by ordinance, yet there is no such requirement in regard to the inlets, manholes, etc., nor of the material of which thev are to be constructed. These appendages to the sewer mav well be regarded as matters of detail, which not hping required to be specified in the ordinance it is not necessary thus to insert them.
“Something must be left to the discretion of the sworn officials whose duty it is to accept bids and make contracts. The principal thing is the construction of the sewer, the incidents are the manholes and the inlets. The same .argument which would condemn an ordiuanue as being faulty, because it did not describe the materials and dimensions of manholes and inlets, would utter a similar condemnation if the quality and quantity of the sand and cement to be used in the construction of the sewer were not also specifically set forth. ’ ’

Similar views upon cognate questions were likewise expressed by Woodson, J., in McCoy v. Randall, 222 Mo. 24.

The ordinance before ns in the case at bar goes into many details as to the “dimensions, material and character” of the proposed sewer. It then specifically refers to certain plans on file. The record in this case does not show that these general plans and specifications were not on file, as stated in the ordinance. On the contrary the documentary evidence with the file marks of the Board of Public Works tends to show they were there. By this I do not mean that all the details afterward embodied in the contract were on hand at the time the ordinance was passed, but the documents referred to in the ordinance were on hand, and when taken with the ordinance they outline the proposed work so as to bring the ordinance within the charter provisions of the city. The specifications referred to by appellant are evidently these detailed specifications as indicated on page 5', 6 and 7 of the brief, and we decline to uphold these contentions of counsel.

II. The second and last point made in the brief thus reads:

“The question of whether or not the specifications were prepared and on file prior to the passage, of the ordinance, should have been submitted to the jury.”

What has been said in the previous paragraph apP^es kere- It is not contended that the plans described in the ordinance thus: “Said manholes shall conform in detail to plans on file in the office of the Board of Public Works marked Style ‘O’ and approved June 14, 1898,” were not on file just as recited in the ordinance. Nor is it contended that the plans^ for the flush tank approved March 9, 1893, were not in' fact on file. What appellant is urging is that the detailed specifications were not made out until after the ordinance was passed, and that the question as to whether they had been made out prior to the passage of the ordinance should have been left to the jury. We have in the previous paragraph held that it was only necessary to have these detailed specifications for inspection before the bidding, and that the city ordinances provided for them to be made after the passage of the ordinance authorizing the work, and it might be conceded that they were not prepared until afterward, and yet the judgment of the lower court should not be disturbed. If as we hold, these detailed specifications did not have to be filed before the ordinance was passed, there was no question to be submitted to the jury thereon.

This case illustrates, the extreme technicalities resorted to by many property owners to escape the payment of their just proportion of a public necessity. Courts, both high and low, should look with disfavor upon such cases. It is sufficient, in conclusion, to say, that the trial court did the only thing which under the law and good conscience it could have done, and its judgment is affirmed.

All concur; Bond, J., in result only.