author: GANTT, J.

text:
    HENRIETTA A. BATES, Appellant, v. WILLIAM W. SYLVESTER, Administrator of JAMES J. SYLVESTER.
    Division Two,
    July 1, 1907.
    1. DAMAGES: Against Administrator: Survivor. An action sounding in tort, based on the Damage Act, begun against the wrongdoer, for the negligent killing of plaintiff’s husband, does not survive to the widow against the administrator of such defendant after his death.
    2. -: -: At Common Law. At common law actions for tort did not survive against the administrator of the alleged wrongdoer, and hence, it is not true that any action sounding in tort which does not expressly fall within the limitations of section 97, Revised Statutes 1899, can be revived by or against the legal representative of the deceased party to the action.

      3. -: -: Under Statute. Section. 96, Revised Statutes 1899, was intended to provide for the survivor by and against personal representatives of actions for wrongs to property rights and interests only, and by that statute, without more, no action would lie based upon the death of a human being and no right of action for tort to the person would survive the death of either the wronged or the wrongdoer; and section 97 provides that “the preceding section shall not extend to actions on the case for injuries to the person of the testator or intestate of any executor or administrator;” and sections 2864 to 2868, of the Damage Act, do provide for the survivor of actions for personal injuries resulting in death, but they create no new cause of action, but simply transmit to certain persons named a right of action which but for them would cease to exist with the death of the person entitled to sue, and make no provision whatever for survivor of the action in case of the death of the person who wrongfully caused the injury. [Overruling Behen v. Railroad, 186 Mo. 430, holding, arguendo, that the Damage Act creates a new cause of action.]
    4. -: -: Damage Act. Our Damage Act is in derogation of the common law, and being such is to be strictly construed; it is complete within itself, and it is not for the courts to supply any omission therefrom. It does not give a right of action against the administrator for the wrong done by his intestate, nor does an action begun against the intestate for his tort survive after his death against his administrator, but abates.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      Lyova & Swarts and titomas J. Hoolcm for appellant.
    An action by a widow for tbe wrongful killing of ber husband is not an action for injuries to the person of plaintiff, and does not abate by the death of the defendant. Knight y. Lead & Zinc Co., 75 Mo. App. 541; McG-owan v. Ore & Steel Co., 109 Mo-. 518-; Stanley v. Bircher, 78 Mo. 245; James v. Christy, 18 Mo. 162; Cregan v. Railroad, 75 N. T. 792, 83 N. T. 595; Behen v. Railroad, 186 Mo. 431; secs. 96 and 97, R. S. 1899.

      Block S Sullivan for respondent.
    (1) No action lies for the death of a human being except as expressly given by statute. Soeekman v. Railroad, 15 Mo. App. 507; McNamara v. Slavens, 76 Mo. 331; Barker v. Railroad, 91 Mo. 91 j Brink v. Railroad, 160 Mo. 92. (2) Section 96 of our administration law deals only with property rights. Higgins v. Breen, 9 Mo. 497; Vawter v. Railroad, 84 Mo. 686; James v. Christy, 18 Mo. 162; Stanley v. Vogel, 9 Mo. App. 101; Weiner v. Peacock, 31 Mo. App. 244; Hegerich v. Keddie, 99 N. Y. 264. (3) Our Damage Act creates no new cause of. action, but merely provides for the transmission of an existing one. Proctor v. Railroad, 64 Mo. 119; White v. Maxie, Mo. 558; Gray v. McDonald, 104 Mo. 311; Hennessy v. Brewing Co., 145 Mo. 112; Strode v. Railroad, 197 Mo. 626. (4) And as no statute provides for its surviving the death of the wrongdoer, it will not do so. Norton v. Wiswall, 14 How. P'r. (N. Y.) 42; Hegerich v. Keddie, 99 N. Y. 258; Russell v. Sunbury, 37 Ohio St. 372; Hamilton v. Jones, 125 Ind. 176; Davis v. Nichols, 54 Ark. 358; Moe v. Smiley, 125 Pa.. St. 136; Johnson v. Parmer, 89 Tex. 610; Green v. Thompson, 26 Minn. 500; Ott v. Kauffman, 68 Md. 56; Loague v. Railroad, 91 Tenn. 458; Railroad v. Bean, 94 Tenn. 388; Sanders v. Railroad, 111 F'ed. 710.
   GANTT, J.

The plaintiff brought suit under section 2865', Revised Statutes 18991, for the alleged negligent killing of her husband, Depello Bates, by an employee of James J. Sylvester, by negligently driving a horse and carriage belonging to said defendant over her said husband on or about April 11, 1908. After the suit was filed the cause was dismissed as to the defendant Orissie L. Sylvester and the other defendant, James J. Sylvester, died; his death was suggested to the court and the plaintiff having complied with the statutes, sought to revive the action against W. W. Sylvester, the administrator of said James J. Sylvester, deceased. The writ of scire facias was issued against the said administrator who appeared in court, and for his return to the citation to show cause why this action should not be revived against him, represented to the court that this action did not survive the death of the said defendant, James J. Sylvester, and thereupon the court overruled the plaintiff’s motion and application to revive the cause and ordered the same to be abated as to the administrator and estate of the said James J. Sylvester. From this order the plaintiff appeals to this court, and the only question presented for our adjudication is whether or not an action based on the Damage Act survives to the widow against the administrator of the deceased defendant.

I. At common law actions in tort do not survive the death of either the wronged or the wrongdoer. This rule of the common law forbidding the survivor of actions, or right of action ex delicto, was first modified in this State in 1835, by the enactment of what is now sections 96 and 97, Eevised Statutes 1899, which are as follows:

“Sec. 96. Actions for torts by and against administrators, what may be maintained. — For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.

“Sec. 97. Last section not to extend to what actions. — The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to' actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

In Higgins v. Breen, 9 Mo. 497, it was pointed out by Judge Scott that the Statute of 4th Edward III “only gave actions to executors, and not against them, for as against the person committing the injury, the action dies with him. [Chitty, 50; 1 Saunders, 217.] Our statute has changed the English law in this respect, and has given an action both to and against executors and administrators, and by employing much broader language than the statute of Edward, seems to have included by express enactment the injuries which were comprehended in that statute only by construction. The words of our statute are, ‘for wrongs done to the property, rights or interest of another,’ etc., with the exception of actions for slander,, libel, assault and battery, or false imprisonment, and to actions on the ease for injuries to the person. [R. S. 1835, Title Administration, art. 2, secs. 24 and 25.]”

Sections 96 and 97 have heeu construed by this court. Thus in Vawter v. Railroad, 84 Mo. 1. c. 685, 686, Judge Black, speaking for this court, said: “An administrator appointed in this State receives his power and authority to sue from the laws of this State, and from this State alone, to which he is amenable throughout the entire course of the administration. There is no statute of this State by which he has or can have anything to do. with suits of this character or the damages when recovered. He may, by section 96, Revised Statutes 1879, bring an action for all wrongs done to property rights or interests of the deceased against the wrongdoer. Section 97 provides:. ‘ The preceding section shall not extend to actions . . . on the case for injuries ... to the person of the testator or intestate of any executor or administrator. ’ Eor fear that section 96 might be construed to confer upon the administrator a right to sue for injuries to the person of the intestate, the next, as will he seen, declares in express terms that he shall not do so. To sustain this action we must say he may maintain such actions, and that, too, because of a statute of another State.....This we cannot do.”

The learned counsel for the plaintiff insist that any. action sounding in tort which does not expressly fall within the limitations of section 97 can be revived by or against the representatives of a deceased party to the action, and as section 97 only bars actions on the case for injuries to the person of the plaintiff, the only question before this court in this case is whether or not this is an action for injuries to the person of the plaintiff, and as this is not an action for injury to the person of Mrs Bates, her cause of action survives against the administrator of the alleged wrongdoer, James J. Sylvester. We are unable to concur in this deduction of the counsel for plaintiff, for the reason that at common law the rule was just the other way, that is to- say, actions for tort did not survive, and under section 96, actions for tort do not survive unless they are within the terms of section 96. And if by virtue of the general provisions of said section an action might be said to survive, nevertheless if included within the prohibition of section 97 it will not survive. By reference to section 96, it will be noted that the statute refers to “wrong done to property, rights or interests of another,” and counsel for plaintiff cite us to James v. Christy, 18 Mo. 162. That was an action by the administrator of James for the negligent killing of his son by the explosion of a steam ferry boat on which the' son was a passenger. The son was living with his father and was fifteen years old. The question was whether the action survived to the administrator of the father, and it was held by this court that the father had a property-right in the service of his son during his minority and whilst he was under his guardianship, and if by the misconduct of another he was deprived of those services, or the son’s ability of performing them, the law awarded him a compensation in damages. And it was pointed out by Judge Scott that the damages in such case must be limited to the actual value of those services and that all other damages die with the father. In other words, the language of section 96, to-wit: “Property, rights or interest” mean and should be read “property-rights or interest,” and this was the construction placed upon it by this court in Vawter v. Railroad, 84 Mo. 686. At common law the death of a human being gave rise to no civil action in behalf of any person under any circumstances as has often been decided by the appellate courts of this State. [McNamara v. Slavens, 76 Mo. 1. c. 331; Barker v. Railroad, 91 Mo. 1. c. 91; Brink v. Railroad, 160 Mo. 1. c. 92; Stoeckman v. Railroad, 15 Mo. App. 1. c. 507.]

James v. Christy, supra, was decided in 1853, two years before the enactment of any statute in this State providing for recoveries in cases of injury resulting in death, and it is clear that if the father in that case had brought an action for the death of the infant son he could not have recovered, because section 96, then in force, dealt only with the survivor of existing actions and not with the creation of new ones, and by the common law such an action could not have been maintained. Sections 96 and 97 are literal transcriptions of the New York statutes on this subject. In Hegerich v. Keddie, 99 N. Y. 1. c. 264, the Court of Appeals of that State, construing the two sections of the New York statute, said: “Reference to the law as it stood prior to the revision (and the application of the maxim noscitur a sociis) would seem to require such an interpretation of the words ‘property, rights or interests’ as will confine their application to injuries to property rights only, and such as were therefore enforcible by the deceased.” Indeed we are of the opinion, in view of the state of law when sections 96 and 97 were enacted, it was the intention of the Legislature to provide for the survivor by and against personal representatives of actions for wrongs to property rights and interest only, and that by this enactment, without more, no action would lie based upon the death of a human being, and no right of action for tort to the person would survive the death of either the wronged or the wrongdoer. In 1865, thirty years after the enactment of those two sections, the Legislature enacted our Damage Act, now sections 2864 to 2868, and those adopted the spirit of Lord Campbell’s’ Act. The Act of 1855 and the subsequent amendments thereto, as they appear in the revision of 1899, did provide for the survivor of actions for personal injuries resulting in death.' These sections have been construed in a number of cases, by this court. Thus, in Proctor v. Railroad, 64 Mo. 1. c. 119, it was said: “It is conceded by all that the third section of the act was only designed to transmit a right of action which but for the section would have ceased to exist, or would have died with the person; in other words, that under section three whenever a person dies from such a wrongful act of another as would have entitled the party to sue had he lived, such cause of action may be maintained by certain representatives of the deceased, notwithstanding the death of the party receiving the injury. It creates no new cause of action but simply continues or transmits the right to sue, which the party whose death is occasioned would have had, had he lived. It is not only a right transmitted, but it is restricted by limitations as to the persons who are to enjoy the right, the time within which it is to be enjoyed and the amount of damages to be recovered.” And the doctrine thus announced has been repeated in White v. Maxcy, 64 Mo. 1. c. 558; Gray v. McDonald, 104 Mo. 1. c. 311; Hennessy v. Brewing Co., 145 Mo. 1. c. 112; Strode v. Railroad, 197 Mo. 1. c. 626.

What was said in Behen v. Railroad, 186 Mo. 430, arguendo, that our statute authorizing recovery for the wrongful death creates a new cause of action and does not simply provide for the survivor of an existing one, is not in harmony with the cases above cited and is contrary to the last expression of this court in Banc on this subject in Strode v. Railroad, 197 Mo. 626. Having thus reached the conclusion that this action did not survive by reason of section 96, Revised Statutes 1899, is there anything in sections 2864, 2865 and 2866 which provide that this action shall survive the death of the tortfeasor or wrongdoer? The language of section 2865 is that whenever the death of a person should be caused by a wrongful act, neglect or default of another . . . the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured. And section 2864 provides when any person shall die from an injury resulting from or occasioned by the negligence, etc., of any officer, agent, etc., whilst running, conducting or managing any locomotive, car or train of cars, etc., or when any passenger shall’ die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, etc., the corporation or individual in whose employ any such officer, agent, etc., shall be at the time of such injury, or who owns any such railroad, etc., at the time the injury is received, shall forfeit and pay for every person or passenger so dying the sum of five thous- and dollars, which may be sued for and recovered, first, by the husband or wife of the deceased, or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children he the natural born or adopted child or children, etc. Thus, it will he seen that the statute provides that actions for personal wrongs shall not die with the party whose death was occasioned hy the wrongful act, hut shall survive to certain parties designated in the act, but no provision whatever is made for the contingency of the death of the person who wrongfully caused the death. Whether intentionally or hy oversight, the General Assembly made no provision for the survivor of the action against the personal representatives of the wrongdoer. That this is the case is tacitly conceded hy counsel for the plaintiff hy invoking section 96 as affording it. Our Damage Act,like Lord Campbell’s Act, and similar statutes in almost all of the states in the Union, is clearly in derogation of the common law. It is complete in and of itself and as we have already said in our opinion provides for a transmission of the right of action to the parties designated in the act, the parties against whom it will lie, and fixed the measure of damages and its own statutes of limitation. Both section 2864 and 2865 name the person who shall he liable in such cases “as the person who or the corporation which would have been liable if death had not ensued. ’ ’ And at the time this act of 1855 was passed such action would not have survived the death of either of the party injured or the wrongdoer. It is to he noted that the Legislature had this specific question of survivor in mind when it enacted our Damage Act, and if the lawmakers had intended that the action should lie against the representatives of the person who' would have been liable had death not ensued, they would not have left it in doubt. It is not the province of the courts to supply this omission in the statute, if such it may he called, hut to construe the act as we find it upon the statute hooks..

Counsel for the plaintiff, however, have called our attention to the cases of Cooper v. Electric Co., 63 N. J. Law 558, and Meekin v. Railroad, 164 N. Y. 145. An examination of those cases will demonstrate that they rest upon statutes unlike ours in that they permit actions for death to survive the death of the plaintiff and it is well to remark in this connection that the New York statutes of which ours are transcripts have been radically amended since their adoption into the laws of this State. But on the point now under consideration the Court of Appeals of New York in Meekin v. Railroad, 164 N. Y. 1. c. 151, expressly approved Hegerich v. Keddie, 99 N. Y. 258, in which it was held that the cause of action for damages from negligence resulting in death abates upon the death of the wrongdoer, and that the action cannot he maintained against the representatives of the wrongdoer, saying: “This is a necessary result from the fact that the Code modifies the Revised Statutes and the common law only as to the personal representatives of the person injured, and not as to those of the person who inflicted the injury.” The case of Cooper v. Electric Co., 63 N. J. Law 558, was predicated upon the statute, the efficient words of which were, “A right of survivor of an action to and against personal representatives for trespass to the person or property, real and personal,” and it was held that the word “trespass” as used in the section was equivalent to the word “tort,” so that the effect of the provision was to give a right of suit against the personal representatives of a deceased wrongdoer for any injurious act of a suable nature, without reference to the form in which the remedy was sought.

We have already noted that our act, section 96, Revised Statutes 1899, is confined to actions for torts for wrongs done to property rights or interest of another and not to personal torts or actions on the case for injuries to the person. An examination of the decided cases in other jurisdictions confirms the views which we have expressed. Among the first eases on this subject is Norton v. Wiswall, 14 How. Pr. (N. Y.) 42, decided in 1856. The case was an action brought for the death of a passenger on a ferry, the defendant having died pending the action, thus presenting the question whether it could be revived against the administrator. After adverting to the fact that at common law the action would undoubtedly abate on the death of the defendant, the court said: “The statute which gives the right of action to the personal representative of the party injured does not extend that right of action beyond the wrongdoer himself. The common-law rule that the remedy for injuries to the person dies with the wrongdoer, remains unchanged. The rule that actio personalis moritur cum persona, is as applicable to the death of the wrongdoer as to that of the party injured. Indeed, it is more so; for the statute under which these actions are brought has made one exception to the rule in respect to the later, while .there is no exception to the rule in respect to the former.” Another case growing’ out of the same action was Yertore v. Wiswall’s Executors, 16 How. Pr. (N. Y.) 8. At that time the New. York statutes contained provisions exactly like our sections. 96 and 97, Revised Statutes 1899, it was held that the action in behalf of the widow and next of kin was a new and original action and that the life of the husband was property of the wife within the meaning of the New York statute, which is the argument made in this case by counsel for the plaintiff. Afterwards, in Hegerich v. Keddie, 99 N. Y. 258, an action was brought by the widow as administratrix to recover the statutory penalty for the wrongful death of her husband and, pending the action, the defendant died, and it was revived and prosecuted against the executor, and, on appeal to the Court of Appeals of New York, the only question considered was whether or not under the New York statutes the action, survived. The Court of Appeals disapproved the decision in the Yertore case, and held that the action abated at the death of the defendant. Ruger., C. J., speaking for the whole court, discussed the provisions of the sections of the New York act corresponding to our sections 96 and 97, and held that the words “property, rights or interests” should be confined in their application to property rights only and such as were therefore enforcible by the deceased, and then taking up the Damage Act which provided for an action by the administrator for the benefit of the widow or next of kin in ease of death, said: “It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent rule which precluded the maintenance of such actions against the representatives of the offending party. The plain implication from its language would, therefore, seem to be at war with the idea that the Legislature intended to create a cause of action enforcible against, as well as by, representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general administration, but for the exclusive use of specific beneficiaries. The wrong defined indicates no injury to the estate of the person killed, and cannot either logically or legally be said to affect any property rights of the person, unless it can be maintained that a person has a property right in his own existence. The property right, therefore, created by this statute is one existing in favor of the beneficiaries of a recovery only, and depends for its existence upon the death of the party injured. It had no previous life and can not be said to have been injured by the very act which creates it.” The court distinguished the case of Cregin v. Railroad, 75 N. Y. 193, and 83 N. Y. 505, which has been urged as authority in this case for the plaintiff, and pointed out that in the Cregin case the action was by the husband for the death of his wife and the husband according to the view of the New York court had a property right in the services of his wife, and therefore the injury to the wife diminished the estate of the husband, and, consequently, for the loss of services of the wife, between the date of her injury and the date of her death, the husband’s administrator might recover. Upon: a statute of the same import as ours this same question arose in Russell v. Sunbury, 37 Ohio St. 372, and it was held that the right to commence an action for wrongfully causing death under “an act requiring compensation for causing death by wrongful act, neglect or default,” passed March 25, 1851, abated by the death of the wrongdoer. The court expressly disapproved the decision in Yertore v. Wiswall’s Executors, 16 How. Pr. 8, and held that the death of the husband did not vest in the widow or next of kin a property interest in the deceased and was not an injury to the estate of the deceased within the meaning of the law.

This same question has received the consideration of the Supreme Court of Indiana in Hamilton v. Jones, 125 Ind. 176 (1890), and Mitchell, J., with great care and discrimination reviewed the cases of Hegerich v. Keddie, Yertore v. Wiswall, Cregin v. Railroad, Russell v. Sunbury, already noted, and Moe v. Smiley, 125 Pa. St. 136, and Ott v. Kaufman, 68 Md. 56, and disapproved Yertore v. Wiswall, as the Supreme Court of Ohio, and the Court of Appeals of New York have; and reached the conclusion, “that statutes in derogation of the common law are to be strictly construed, and one who seeks te maintain an action which was ■within the prohibition of the common law must be able to point to a statute which in plain and explicit terms authorizes the action to be maintained. A plaintiff who sues on a right of action given by the statute must present a case clearly within the statute which creates the right. The language of section 284 seems to repel any implication that the personal representative of one whose death had been caused by the wrongful act or neglect of another, might maintain an action against the administrator or other personal representative of the wrongdoer,” and held that the action abated in that case.

The same question has been considered by the Supreme Court of Arkansas in Davis v. Nichols, 54 Ark. 358. That court also refused to accept the doctrine of Yertore v. Wiswall, 16 How. Pr. 8; and Cockrill, C. J., said: “The statute under which that branch of the suit was maintained authorizes an action against a wrongdoer, but it is silent as to the administrator of the wrongdoer; and unless the provisions-of the statute first cited [corresponding to our sections 96 and 97] cure the defect, the action must abate under the familiar rule of the common law that the wrongdoer and the wrong are buried together. The question has arisen frequently under statutes which, like ours, are modeled after Lord Campbell’s Act, and it has been invariably decided against the right of revivor..... The courts were driven to that conclusion in the cases cited, because it was found that the common-law rule as to the survivability of actions had not been changed by legislation — the duty of the courts being to declare the law, and not to make it. ’ ’ And he added: “ These cases clearly show that the right of the widow to' recover damages for the death of her husband is not based upon an injury to property within the meaning of the statute.” To the same effect will be found Moe v. Smiley, 125 Pa. St. 136; Johnson v. Farmer, 89 Tex. 610; Green v. Thompson, 26 Minn. 500; Ott v. Kaufman, 68 Md. 56.

Our conclusion is that in the light of the common-law and the construction placed upon our Damage Act by this court, the action of the plaintiff did not survive against the defendant as administrator of James J. Sylvester and the judgment of the circuit court in refusing to permit the cause to be revived was and is correct and accordingly it is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    LENORA HOLLIS, Appellant, v. KANSAS CITY, MISSOURI, RETAIL MERCHANTS’ ASSOCIATION et al.
    Division Two,
    July 1, 1907.
    1. NEGLIGENCE: Merchants' Association: Amusement Exhibitions: Distinct Business: Demurrer. Where the evidence clearly indicates that the Retail Merchants’ Association (a corporation) was interested in the exhibitions furnished by another defendant, had general charge of all the grounds where such exhibitions were given, participated in the proceeds from the appliance which broke down and upon which • plaintiff was negligently injured, took an- active part in the distribution of posters advertising the amusements, which must at least be construed as an implied invitation to plaintiff and others to visit the grounds where the exhibitions were given, an instruction in the nature of a demurrer cannot be given on the theory that defendants were engaged in separate and distinct businesses and that the amusements and appliances connected therewith were provided and conducted by the defendant amusement company independent of the merchants’ association which was not the owner of the appliance which broke down and caused the accident.
    2. -: In Control of Premises: Invitation. One who is in control of premises is liable to another who upon his invitation enters thereon, and who, without fault on his part, is injured • because of the unsafe condition of said premises or the negligent use thereof, if said unsafe condition is known or by the exercise of ordinary care would have been known.

      Appeal from Jackson Circuit Court. — Eon. J. E. Slover, Judge.
    Reversed and remanded.

      Fyhe & Snyder for appellant.
    (1) The court erred in instructing the jury at the close of plaintiff’s evidence, to find for defendants. Upon what theory the court gave that instruction we do not know. The evidence clearly shows that defendants were in charge of the grounds; that they participated in the proceeds and profits arising from the gondolas; there is some evidence, at least, that plaintiff was injured by reason of the negligent management of the gondola, and its defective 'condition. It is wholly immaterial who owned the gondolas. Nagle v. Railroad, 75 Mo. 653. The defendant Retail Merchants’ Association had general charge of all the grounds; it participated in the proceeds of the gondolas; and for any injury arising to visitors, from the negligent management of the gondolas, both it and the Bostock-Ferari Midway Carnival Co. were liable. Causadt v. Clauve, 03 Ind. 476; Railroad v. Moore, 37 L. R. A. 258; Thompson v. Railroad, 170 Mass. 577 (40 L. R. A. 345). Defendants were engaged in a common or joint enterprise. The Retail Merchants’ Association furnished the grounds. The Bostock-Ferari Company furnished the monkeys, the lions, the gondolas, and the two divided the proceeds. (2) There was evidence of negligence in the management of the gondolas, and also evidence that it was in a defective condition. It was caused suddenly to run much faster than usual; the axle was defective. As a result the car upon which plaintiff was riding broke down and she was injured and horribly disfigured. Railroad v. Cotton, 140 111. 486; 1 Addison on Torts, sec. 33.
   FOX, P. J.

This cause is here by appeal from a judgment for the defendant. The cause of action is thus stated by plaintiff in her petition, which is as follows:

“Plaintiff for her cause of action alleges that the Kansas City Missouri Retail Merchants’ Association is a corporation duly incorporated according to law. That the defendant Bostock-Ferari Carnival Company is a corporation duly incorporated according to the laws of the State of Delaware, and at the time of bringing this suit maintained an office in the county of Jackson and State of Missouri. That Frank C. Bostock and Francis Ferari are partners doing business under the name and style of Bostock-Ferari Carnival Company, and at the time of bringing this suit maintained an office in Jackson county, in the State of Missouri.

“That on the seventh day of October, 1902, the said defendants were conducting in Kansas City, at or near Fifteenth street and the Paseo, an enterprise or exposition known as Kansas City’s Fall Festival Exposition. That for the purpose- of inducing people to attend said exposition and to pay admittance fee thereto, said defendants set up and operated at said place, among other things, what is known- as gondolas, which said gondola was so constructed that it had a circular track upon which cars revolved, in which cars passengers or customers were invited for the consideration of ten cents, to be paid by such passengers, to take seats and be carried on and around said track in said cars. That a great many people on said seventh day of October, 1902', patronized said gondolas and were carried thereon and therein around said track in and upon said cars.

“That plaintiff, on said date, being invited thereto by defendants, took a seat in one of said cars for the purpose of riding thereon, and paid to defendants the usual and customary charge therefor, to-wit, the sum of ten cents. That it was the duty of defendants to see that said apparatus was safe in every respect, to run said cars at a rate of speed that would not he dangerous to the public, and to use diligence to prevent same from giving way or breaking, and to see that passengers thereon were not endangered by any defect therein, or mismanagement by the agents and servants in charge of said apparatus and the machinery used in running the same. That said apparatus was dangerous and unsafe in this, that the. front axle of said car in which plaintiff was riding was broken and cracked half in twain, which rendered same weak, dangerous and unsafe, which fact was well known to defendants, or by the exercise of ordinary care might have been known by them. That plaintiff, while so being carried around upon said track, and in said car, at a great and unusual speed, was, by reason of the negligence of defendant in running said car at said unusual rate of speed, and, by reason of the dangerous and unsafe condition of said axle, as aforesaid, and by reason of the negligence of the defendants in not inspecting said apparatus to see that the same was in good condition; and by reason of the negligence of defendants in running said car as aforesaid, said apparatus broke down and gave way and plaintiff was violently and with great force thrown against an upright post, which was a part of said gondolas, and struck said post with great force with her head and face, whereby she was greatly wounded and disfigured in this: That the skin in the front and side of her face was tom loose, her nose was split open and horribly lacerated. That on account of said injuries she has suffered great physical pain and mental anguish and has been permanently injured and disfigured and will be for the balance of her natural life permanently injured and disfigured as aforesaid, to her damage in the sum of twenty thousand dollars.

“Wherefore by reason of the premises plaintiff prays judgment against defendants and each of them in the sum of twenty thousand dollars together with costs.”

To this petition separate answers were filed, one by the carnival company, which was a general denial. The answer of the Retail Merchants’ Association consisted of a general denial and a plea of contributory negligence.

An examination of the abstract of the record, which discloses all of the evidence introduced in this cause, substantially verifies the statement of the facts in proof as made by the appellant, and the respondent seems to have given this cause no attention, and the statement as made by the appellant is before us unchallenged in any particular, therefore we shall adopt substantially the statement as here presented by the appellant. The facts as developed upon the trial of this cause were substantially as follows: The Kansas City Retail Merchants’ Association is a corporation, and in the fall of 1902 was engaged in the enterprise of giving what was called a street fair at Fifteenth street and Paseo in Kansas City, Missouri. This street fair was composed of various exhibits furnished by such exhibitors as desired to exhibit their goods, wares and merchandise and also an exhibit of live stock. The enterprise was for profit. In addition to the exhibits as aforesaid, portion of the ground was set apart and upon which were located various amusements for the entertainment of visitors to the fair, consisting of German Village, Trained Wild Animal Show and other attractions, and also the Venetian gondolas, something similar to a merry-go-round. The general entrance was at Fifteenth street, at the northwest corner of the grounds. The grounds were enclosed on all sides so that admission thereto could only be gained by entering at the genera] entrance gate and for such admission a fee of ten cents was charged by the Fair Association, all of -which went to the defendant, Retail Merchants’ Association. Clear across the east side of the grounds a space was fenced off, in which, among other attractions, was located the Venetian gondolas. There was also a gate or entrance to that tract of ground which was known as the Midway, at which was likewise charged a fee of ten cents for admission. Visitors who paid this fee could walk around in that space of ground and see whatever was not enclosed by tents, etc. If such visitors desired a closer inspection of such amusements an additional fee was charged for entrance thereto, and if visitors desired to ride on the gondolas a fee of ten cents was charged for that privilege. The testimony fairly shows, or at least it is susceptible of a legitimate inference, that the defendant Bostock-Ferari Midway Carnival Company entered into a contract of some sort with the defendant Retail Merchants’ Association, whereby said Bostock-Ferari Company was permitted to place in said grounds so set off, certain amusements, including the gondolas, and that said Bostock-Ferari Company collected the admission fee of ten cents for entering the Midway, which admission fee was divided between the Bostock-Ferari Company and the Retail Merchants’ Association. The testimony tends to show that the fees charged for riding on the gondolas was likewise divided between the Retail Merchants ’ Association and the Bostock-Ferari Company. Plaintiff sought to introduce a written contract which it was admitted was signed by the Retail Merchants’ Association and the Bostock-Ferari Company. This contract was excluded by the court upon the ground that it was claimed by defendants that the same had been modified. Plaintiff introduced in evidence a large poster as follows:

“Kansas City Retail Merchants’ Association, Street Exposition. County fair, from September 29 to October 11, inclusive. A fortnight of Festivities. Fifty superior paid and fifty free attractions furnished by ¿e World’s Famous Bostock-Ferari Carnival Company. Watch future announcements.” ■

It was testified by one of the witnesses, a member of the Retail Merchants’ Association, that this poster was printed and circulated by the joint authority and consent of said association and the Bostock-Ferari Company. In addition to the above, plaintiff introduced in evidence another circular, which is as follows:

“Kansas City’s Fall Festival Exposition, September 29 to October 11, 1902. Roosevelt day, in honor of President Roosevelt. President Roosevelt will visit the Kansas City Fall Festival Exposition, Monday afternoon, September 29', 1902. The largest fair ever held in the West. Twenty acres of enclosed space. Agricultural and Live Stock shows, Manufactures’ exhibits of home products. Bostick-Ferari Mighty Midway Carnival Company. Five thousand dollars in cash and $5,000 of merchandise premiums for exhibitors of cattle, horses, sheep, mules, hogs, poultry, fancy pets, agricultural and horticultural products and fruit. A woman’s department and art gallery, amusement for the children. Bostock-Ferari Mighty Midway Carnival Company. Eighteen big shows in this company alone. Trained wild animals, lions, monkeys, dogs, goats. Daily balloon ascension and parachute leaps. The Famous Watson Sisters in their electric act on the revolving trapeze. Free Amusements daily on the Exposition grounds. Separate day for Kansas, Arkansas, Nebraska and Missouri. One fare for round trip on all roads. Ask your local agent about it. Geo. A. Bond, President, and Elisha Winter, Secretary.”

This poster was likewise printed and circulated as the evidence shows by the joint action and consent of the Retail Merchants’ Association and the Bostock-Ferari Company. Plaintiff also introduced in evidence exhibit D, which is as follows:

“Bostoek-Ferari Carnival Company, H. B. Potter, Gen. Agt. F. Ferari, General Mgr. D. A. McCann, Secretary and Treasurer.”

Across the face, which was stamped by a rubber stamp: ‘1 (D. A. McCann. Complimentary ticket, coupon not good if detached.) ” Attached to this ticket on the margins thereof were coupons as follows: “Animal Show, German Village, Picture Show, House upside down, Cairo, Lady Athletes, Gondolas, Statues turning to life, Orient.”

The testimony showed that this complimentary ticket was issued by defendant Bostoek-Ferari Midway Carnival Company, with the consent of the Retail Merchants ’ Association, and upon presentation of such ticket the holder was entitled without charge to enter the various places of amusements mentioned in the margin, and that when one of such places was entered the coupon was punched, and so on until all the coupons were punched, if all the places were entered. That the Retail Merchants’ Association had general charge and control of the whole grounds is fully shown by the testimony, and in fact is not disputed. That the Retail Merchants’ Association, for a division of the proceeds which might arise from admission' fee into the Midway and for admission to the various places of amusement in the Midway, had authorized and allowed the Bostock-Ferari Company to place such amusements in said grounds and to charge admission therefor is also established and in fact is practically admitted. Plaintiff, as shown by the evidence, gained admission to the grounds at Fifteenth street by paying or having paid for her the usual admission fee. Afterwards she gained admission to the Midway by paying or having paid for her the usual admission fee; and afterwards patronized the gondolas by paying or having paid for her the usual fee for riding on the same. "While, patronizing these gondolas, the plaintiff was severely injured and disfigured as the testimony shows. There is substantial evidence that her injury was caused by the negligence of the persons in charge of those gondolas. The testimony shows that it was running at a high and unusual and dangerous rate of speed when the axle broke, and that the axle had a defect in it. Whether or not such conditions constituted negligence was, of course, for the jury. That this young lady’s injuries were serious cannot be disputed.

The evidence in this case, aside from the contract offered in evidence, tends to show that the Retail Merchants ’ Association and the Carnival Company were both interested in the proceeds arising from the gondolas. At the close of plaintiff’s evidence the court, at the request of all the defendants, instructed the jury that plaintiff was not entitled to recover. Whereupon plaintiff took a nonsuit, with leave to set the same aside. A timely motion to set the nonsuit aside was filed and taken up by the court and overruled and judgment was entered for the defendant. From this judgment, plaintiff in due time and proper form prosecuted her appeal to this court and the record is now before us for consideration.

OPINION.

The record before us indicates substantially the facts as heretofore recited in the statement of this cause. The respondents have not favored this court with any suggestions, either by brief or in oral argument, indicating in any way the theory upon which the court sustained the demurrer to the evidence at the close of the case. The abstract of record as furnished by the appellant, as well as the statement predicated upon such abstract, seem to be unchallenged as to its correctness by the respondents; therefore, it simply remains for us to announce our conclusions upon the propriety of the instructions given by the court at the close of plaintiff’s evidence, telling the jury that the plaintiff was not entitled to recover. As before stated, there has not been a suggestion on the part of the respondents indicating the theory upon which the instruction in the nature of a demurrer to the evidence was given in this cause — we are therefore left to make our own investigation of authorities which will support the action of the trial court.

We have carefully analyzed the evidence as disclosed by the record and have also directed our attention to the consideration of such authorities, after diligent search that we were able to find, which would in any way maintain the judgment as rendered in this case. While we express no opinion as to the weight to be attached to the testimony as given by the witnesses, for that is exclusively the province of the jury, yet we are of the opinion that there was. sufficient evidence introduced to take the case to the jury. If the instruction in the nature of a demurrer was given in this case upon the theory that the defendants were engaged in a separate and distinct business and the fact that the show and amusements and the appliances, connected therewith were provided and conducted by a corporation or persons independent of the Merchants’ Association, and that the association was not the owner of the appliances upon which the accident occurred, then we say that under the evidence which clearly indicates that the Merchants’ Association were interested in the exhibitions and amusements furnished, had general charge of all the grounds, participated in the proceeds from the appliances upon which this accident occurred, took an active part in the distribution of posters advertising the amusements, which at least must be construed as an implied invitation to the plaintiff and others to visit the ground under the control of the Retail Merchants’ Association, this instruction should not have been given.

In Fletcher v. Railroad, 1 Allen 9, and Shearman & Redfield on Negligence, 501, 504, which were referred to approvingly in Nagel v. Railroad, 75 Mo. 1. c. 660, the rule upon the subject now under discussion was stated that, “Ownership in such cases is not the test of responsibility, and that if enough appears to show that the party sought to be made liable had the property in his charge or under his control on which the nuisance complained of existed, it is sufficient.”

In Thompson v. Railroad, 170 Mass. 577, that court had in judgment before it a case involving a similar proposition to the case at bar. Under a statute in that State street railway companies were authorized to acquire, hold and equip real estate to be used for purposes of recreation and pleasure resorts, the admission being free. The defendant in that case secured ground and maintained such a place on the line of its railway which contained a large platform or stage for exhibitions. There was in that case, as the testimony tends to show in the case at bar, a contract with persons giving entertainments. The defendant paid for advertising these exhibitions and carried posters on its cars. The plaintiff Thompson having seen an advertisement was a spectator at the exhibition of marksmanship, having come on one of defendants’ cars. All the appliances were furnished by the management of the performances and nobody in the defendant’s employment exercised any control or supervision over the performances. At this exhibition of marksmanship the plaintiff received an injury to the eye. The Supreme Judicial Court of Massachusetts in disposing of the controversy thus clearly and we are of the opinion correctly announced the rule applicable to such cases. It was there said: “The defendant asked for an instruction to the jury that it ‘was not responsible unless the exhibition was in its nature such that it would necessarily bring wrongful consequences to pass, unless guarded against, and the defendant failed to exercise due care to prevent harm. ’ The judge, instead thereof, instructed the jury that ‘the defendant is not responsible unless the exhibition was in its nature such that it would necessarily or probably cause injury to some person present under the defendant’s invitation, unless guarded against, and the defendant failed to exercise due care to prevent harm.’ The fact that the exhibition was provided and conducted by an independent contractor would not wholly relieve the defendant from responsibility, provided it was of. such a kind that it would probably cause injury to a spectator, unless due precautions were taken to guard against harm. [Curtis v. Kiley, 153 Mass. 123; Railroad v. Moore, 94 Va. 493; Railroad v. Morey, 47 Ohio St. 207; Hawver v. Whalen, 49 Ohio St. 69; Bower v. Peate, L. R. 1 Q. B. D. 321.] The instruction as given was right. But even under this rule the defendant contends that there was no evidence upon which the jury were justified in finding that the plaintiff was injured by any negligent act or omission on its part; or, in other words, that there was no evidence of any failure on its part to perform its duty in the premises. The question is suggested how far the defendant was bound to go in supervising the instruments and appliances used, and the other details of the exhibition. Should it be held to inspect the rifle and the cartridges, to see if they were safe? Without undertaking to go into unnecessary detail, it is apparent that there was evidence tending to show that the accident happened from a cause which might have been prevented, and that it ought to have been foreseen and guarded against by somebody, either by the defendant or by the manager; and the jury might come to the conclusion that in the general arrangements for an exhibition of this nature the butt should be so placed that fragments which might fly from the impact of the bullets could not reach the spectators, and that due care was not taken in the arrangement of the stage with reference to possible accidents of this kind, and that the defendant itself failed in its duty in this respect. We cannot say that this was so much a matter of transitory detail that the manager alone was responsible for an omission to pay proper attention to securing the safety of spectators from such a risk.. The case, therefore, was rightly submitted to the jury. Nor can it be held that the plaintiff assumed the risk. He might well rely on those who provided the exhibition and invited him to attend, to take due care to make it safe from such an injury as he received.”

Mr. Cooley, in his work on Torts (2 Ed.) p. 718, stated the law in this way: “It has been stated on a preceding page that one is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. ’ ’

In the comparatively recent work of Buswell on Personal Injuries (2 Ed.), the law is well stated in section 66 as follows: “If a person enters upon premises on business to be transacted with the owner or occupant thereof, or by the procurement of the owner or occupant; and, being himself in the exercise of due care, is injured by reason of the unsafe condition of the premises or the approaches thereto, such unsafe condition being known, or such as ought to have been known', to the owner or occupant, the latter will be answerable in damages for such injuries.” Ariel in section 70 he says: “It is apprehended that the responsibility of tbe owner or occupant of land or buildings is the same towards persons entering the premises, whether these come upon business to be transacted with the owner or occupant or at his solicitation, or upon his mere invitation; since, in any of these cases, the entry is by his procurement or inducement, and not by his mere acquiescence, or against his will.” These principles are supported by numerous adjudications. [Nichols, Admr., v. Railroad, 83 Va. 99; Davis v. Central Cong. Soc., 129 Mass. 367, 37 Am. Rep. 368 ; Curtis v. Kiley, 153 Mass. 123; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154.]

The conclusions reached upon this proposition find further support in Railroad v. Moore, 37 L. R. A. 258, 94 Va. 493, and in Conradt v. Clauve, 93 Ind. 476.

In our opinion there was a sufficient showing of negligence in the construction, operation and management of the appliances to have authorized a submission of the cause to the jury. Having reached this conclusion it results that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

All concur.


author: BURGESS, J.

text:
    PAPIN et al., Appellants, v. PIEDNOIR et al.
    Division Two,
    July 1, 1907.
    1. TRUST: Power of Disposition: Limitation Over. Deeds conveying property in fee to a trustee, in trust for the sole use and benefit of a married woman, directing the trustee to collect the rents and pay over the net proceeds to her, upon her receipt alone without any interference from her husband, or at her option to suffer her to use and occupy the property or apply it to any use she might wish, and giving her power to dispose of the fee by deed, will or mortgage, vested in her an equitable fee simple title, and a limitation over upon her death is defeated.

      2. -: -: Delegation of Power to Executor. The deed vested the equitable fee simple title in a married woman with full power in her to dispose of the property and provided that upon her death, if she should not otherwise during her life have disposed' of the property, her trustee should convey it to such person as she by last will might'direct, and that if she should not by last will have directed the disposal of the property the trustee should convey it to her husband if living, or if dead, to his heirs. She by her last will directed her executor to sell the property and turn the proceeds over to her brother. Held, that the will was a valid execution of the power, that the contention that she attempted to delegate to her executor the execution of the power should be disallowed, and that her executor’s deed, reciting the power, conveyed the title to the. grantee.
    3. -: -: Modes. A power to dispose of property by will includes e® vi termini any and all modes of disposal which a will is competent to make, except in so far as the power of appointment by will is qualified or restricted in the instrument creating it.
    4. -: -: -: This Will. Where the deeds vested an equitable fee simple title in a married woman with full power of disposition, and stated that the property is to be “conveyed to such person or persons as she may by last will direct, with such clauses, conditions and reservations as she may in such last will require,” her will directing her executor to sell the property for cash, or one-half cash and the balance in notes secured by a deed of trust, and to turn over the proceeds to her brother, was a strict execution of the power.
    5. -: -: Power of Appointment. A general power of appointment may be exercised in favor of whomsoever donee pleases, even in favor of the donee himself, or for his benefit, or, where the donee is a married woman, in favor of her husband.
    6. ■ : -: Reference to Power. An execution of a power will be held to have been intended where there is some reference in the will or other instrument to the power, or a reference to the property which is the subject on which it is to be executed. And where the will directed the executor to take charge of testatrix’s “real estate in the city of St. Louis, on Pine street, between Twelfth and Thirteenth streets, and sell the same” etc., and she had no other real property, there was a direct and express reference to the subject-matter of the power contained in the deed which described the property by numbers.

      Appeal from St. Louis City Circuit Court. — Eon. H. D. Wood, Judge.
    Affirmed.
    ' B. M. Nichols for appellants.
    (1) Mrs. Sophia A. Papin could not delegate to her executor the execution of the power given to her, to.sell the property and turn over the proceeds to her brother, George Spencer Shaw. Her power of sale could not be delegated. And having a mere power to appoint the use of the property to a person, or persons, her direction that the property be sold by her executor, and the proceeds used in a certain way, was not a valid execution of the power. 22 Am. and Eng. Ency. Law (2 Ed.), 1105; Simpson v. Wingate, 106 Mo. 8; Stephenson’s Ex. v. Richardson, 88 Pa. St. 40; Davis v. Vincent, 1st Houston (Del.) 417; Alley v. Lawrence, 12 Gray 373; Bolls v. Dampmann, 69 Md. 390; Jennet v. Houser, 4 Cir. Ct. Oh. 353; Howard v. Thornton, 50 Mo. 292; Graham v. King, 50 Mo. 23; Bales v. Perry, 51 Mo. 452; St. Louis v. Priest, 88 Mo. 612; Chambers v. Tulane, 9 N. J. E. 155; Conkling v. Edgerton’s Ex., 21 Wend. 432; Sugden on Powers, p. 266; Carr v. Atldnson, L. R. 14 Eq. 397; Hood v. Hayden, 82 Va. 588. (2) The donee of the power of appointment" has not, by virtue thereof, any estate in the property, hence, a will which contains no reference to the power, but devises in general terms all the testator’s property, can not be said to include the property which is the subject of the power, and is not an execution of the power. Hollister v. Shaw, 46 Conn. 248; Burleigh v. Clough, 52 N. H. 267; Mason v. Wheeler, 19 R. I. 21; Davis v. Vincent, 1 Houston 47; Bradstreet v. Kinsella, 76 Mo. 63; Harvard College v. Block, 171 111. 275; Mines v. Gambrill, 71 Mo. 30; Halsey v. Keen’s Heirs, 4 N. C. 700; Meeker v. Breintnall, 38 N. J. E. 345. (3) The power of sale and mortgage was given for the purpose of enabling the life tenant to protect herself against existing incumbrances upon the premises. The life estate with the superadded power of sale and appointment by will with the limitation of a base fee in remainder, is inconsistent with the idea that the life tenant had an absolute estate in the subject of the grant. She could not have exercised this power and appropriated the money to her own' use. Such act would be giving her the estate entirely, which is inconsistent with the estate actually given, and would be a fraud upon the remaindermen. Garland v. Smith, 164 Mo. 1; Stocker v. Foster, 178 Mass. 591; Fleming v. Mills, 182 111. 464. (4) If the life tenant did not have power to appropriate the estate to herself, or give it away, by the exercise of the power of sale in her lifetime, she could not accomplish that same purpose by the power of appointment in her will, and therefore her direction to her executor to sell the property in controversy, for the purpose of paying her bequests under the first, seventh and eighth clauses of her will, which direct the payment of her debts and certain charitable bequests, is void. Garland v. Smith, 164 Mo. 1; Stocker v. Foster, 178 Mass.. 591; Balls v. Dampmann, 69 Md. 390; Fleming v. Mills, 182 111. 464.

      Kehr S Tittmann for respondents.
    (1) The deed of Hughes and Marshall and the deed of Michael and wife vested in Mrs. Papin an equitable fee simple estate in the property thereby conveyed. The power to dispose of the fee by deed or will defeats the limitation over to Joseph L. Papin or his heirs. Green v. Sutton, 50' Mo. 186; Cornwell v. Orton, 126 Mo. 365; Cornwell v. Wulff, 148 Mo. 551; Roth v. Rauschenbusch, 173 Mo. 591; St. L. & B. Assn, v. Fueller, 182 Mo. 107. (2) At the date of the deeds, Mrs. Papin was a married woman. Upon the death of her husband in 1872, the disability of coverture ceased. In 1897, the trustee, Peter M. Papin, died. The use being executed by the statute, Mrs. Papin became seized of the legal as well as of the equitable title to the property. Roberts v. Mosley, 51 Mo. • 286; Pitts v. Sheriff, 108 Mo. 116. (3) There are no words in the deed expressly creating a life estate in Mrs. Papin. On the contrary, the conveyance is in fee to the trustee for the sole use of the beneficiary, who therefore takes an estate equal in duration to the legal estate. But if Mrs. Papin’s estate should, by construction, be converted into a life estate only, then as she had power to dispose of the fee by deed or will, and has exercised that power, the limitation over was defeated. (4) Mrs. Papin’s will was a complete and valid execution of the power. The power to appoint was general and unrestricted. Harker v. Reilly, 4 Del. Ch. 79 ; 22 Am. and Eng. Ency. Law (2 Ed.), 1116-33-34; Blagge v. Miles, 1 Story 446; Lee v. Simpson, 134 U. S. 590; Turner v. Timberlake, 53 Mo. 376; Pease v. Pilot Knob Iron Co., 49 Mo. 127; Campbell v. Johnson, 65 Mo. 440; Bullock v. Pladgate, 1 Yesey & Beames, 478; Kenworthy v. Bate, 6 Vesey, Jr., 798; Fowler v. Cohn, 21 Beaven 365; Mays v. Buch, 114 Tenn. 544; Lawrence Estate, 136 Pa. St. 354; Grace v. Perry, 197 Mo. 566; Stone v. Forbes, 189 Mass. 163; Taylor v. Allhusen, 74 L. J. C. Div. 350.
   BURGESS, J.

This is a suit in ejectment by plaintiffs, claiming to be the heirs of Joseph L. Papin, deceased, against Hector A. Piednoir, Jr., and his two tenants, Lamb and McCowan, for the possession of a lot of ground, with improvements thereon, fronting forty-two feet and six inches on the south line of Pine street in the city of St. Louis, and known as Nos. 1214 and 1216 Pine street. A jury being waived, the cause was tried by the court, and resulted in a finding and judgment for the defendants.

Upon the trial, plaintiffs gave in evidence two deeds hy which the property in controversy was conveyed to Peter M. Papin, as trustee for Mrs. Sophia A. Papin. At the date of the deeds, Mrs. Papin was the wife of Joseph L. Papin, after whose death she married Patrick Yore, whom she likewise survived. The earlier of the two deeds is dated the ninth day of June, 1858, and hy it James M. Hughes and Thomas Marshall convey to- Peter M. Papin, in trust- for Mrs. Sophia A. Papin, a lot of ground fronting twenty-two feet and six inches on Pine street; and hy deed dated the ninth day of September, 1859, Daniel C. Michael and wife convey to Peter M. Papin, in trust, for Mrs. Papin, the adjoining twenty feet on the east of the property conveyed hy the former deed. The two deeds, which are in substantially the same form, convey the property in fee to Peter M. Papin, in trust, for the sole use, benefit and behoof of the said Sophia A. Papin (wife of said Joseph L. Papin), as follows:

First. To receive and collect the rents, and pay over' the same to Mrs. Papin, upon her receipt alone, without any control or interference from her husband, or, at her option, to suffer her to use and occupy the property as she might see fit.

Second. To sell absolutely by deed in fee simple, or to encumber hy deed of trust, mortgage or otherwise, the property, as Mrs. Papin might request and direct.

Third. “Upon the death of the said Sophia A. Papin, the said property (if the said -Sophia A. Papin shall not have otherwise during her lifetime disposed of the same) shall he converged hy said party of the second part to such person or persons as the said Sophia A. Papin may, by last will and testament direct, with such clauses, conditions and reservations as she may in such last will and testament require, and such last will and testament in the disposal of said property (notwithstanding she may, at the time of her making and executing the same, be a married woman,) shall be full authority for said party of the second part to convey said property in the manner that she may direct in said last will and testament.”

Fourth. “If the said Sophia A. Papin should not by last will and testament have directed the disposal of said property, the said party of the second part shall convey the same absolutely to the said Joseph L. Pa-pin, if he be then living, and if he be dead, to the heirs of him, the said Joseph L. Papin.”

Joseph L. Papin died in 1872. Peter M. Papin, the trustee, died in 1897. Mrs. Sophia A. Yore, formerly Papin, died on the twenty-third day of October, 1901, leaving a will which was duly admitted to probate in the probate court, city of St. Louis, on the twenty-sixth day of October, 1901. After making a number of special bequests, the testatrix disposed of the property in controversy by the 9th clause of her will, as follows:

Ninth. “I direct and empower my executor hereinafter named to take charge of my real estate situated in the city of St. Louis, Missouri, on Pine street, between Twelfth and Thirteenth streets, and to sell the same at public or private sale, for cash or part cash and part notes, payable not more than two years after the date of sale and which notes shall be secured by proper first lien on said real estate; the proceeds of such sale shall be used first for the fulfillment of the first, seventh and eighth clauses of this my will, provided that I do not leave sufficient personal property not herein specifically bequeathed to fully carry out the provisions of said three clauses, and the balance, whether in the form of cash or notes, to go and be paid to my brother, George Spencer Shaw, of Long Beach, Los Angeles county, California, absolutely. If my personal property, not hereinbefore specifically bequeathed, is sufficient to carry out the provisions of said first, seventh and eighth clauses of this my will, then the entire proceeds of such sale shall go and be paid to my said brother, George Spencer Shaw.”

By the tenth clause of her will, the testatrix gave and devised all the rest and. residue of her estate, real and personal, absolutely, to her said brother, George Spencer Shaw, and by the eleventh clause of the will she named William Richard Faribault as executor of the will, and he duly qualified as such.

On December 23, 1902, Mr. Faribault, as executor, conveyed the property referred to in the will to'Richard Clark for eighteen thousand dollars, by an executor’s deed, in which he recited the provisions of the will and the authority thereby conferred upon him to sell, taking back a deed of trust to secure a part of the purchase price.

George Spencer Shaw having died between the date of the execution of the will and the death of the testatrix, his two daughters and only heirs executed a quitclaim deed to Clark for the property. Clark after-wards, on February 9, 1903, conveyed the property, by warranty deed, to defendant Piednoir.

Mrs. Tore, the testatrix, had no real estate except the property on Pine street in controversy in this suit. The personal property in the hands of the executor was more than sufficient to satisfy all the demands against the estate and the bequests to charitable objects.

According to the evidence, Faribault, the executor, to whom the property in controversy was devised by Mrs. Tore, with directions to sell, had, for years before her death, been her agent in charge of said property, subject to her control only, and with full knowledge of the trustee,' Peter M. Papin, who never received any of the rents, and who knew that Faribault was collecting and paying them directly to Mrs. Tore.

Upon the trial, the plaintiffs gave in evidence the two deeds from Hughes and Marshall and from Michael and wife to Mr. Papin’s trustee, as aforesaid; also offered evidence tending to show that they were heirs of Joseph L. Papin.

Plaintiffs asked the court to declare the law to be as follows :

‘ ‘ The court declares the law to be that under all of the testimony in this case it must find a verdict for the plaintiffs and against the defendants for the possession of the property described in the petition, together with whatever damages it may believe from the evidence the plaintiffs have sustained by reason of the unlawful withholding of the possession of the same from the plaintiffs from the twelfth day of February, 1903, to the present time.”

“The court declares the law to be that under the evidence in this case it cannot find that Sophia L. Yore executed the power given her by the deeds from Daniel O. Michael and wife and James M. Hughes and Thomas Marshall to Peter M. Papin, shown in evidence in this case — by her last will and testament, and that under the testimony it must find that the defendants Thomas Lamb, R. B. McGowan and Hector A. Pied-' noir unlawfully withheld the possession of the said premises from the plaintiffs and the defendant Mary Faribault from the twelfth day of February, 1903, and that they have suffered damages by reason of such unlawful withholding-of possession in whatever sum the court may find from the evidence is the value of the monthly rents and profits of the said premises from the" date of such unlawful detention to the present time;” which reauested declaration of law was refused by the court, and plaintiffs duly excepted.

The court g’ave the following declarations of law asked by the defendants:

“Under the evidence and the law in this case, the plaintiffs are not, nor is either of them, entitled to recover.”

“The will of Mrs. Sophia Yore, formerly Papin, given in evidence by the defendants, was a good and valid execution of the power vested in her by the deeds of Michael and wife and Hughes and Marshall, to appoint the real estate in question by her last will and testament.”

It is claimed by the plaintiffs that Mrs. Sophia A. Yore could not delegate to her executor the execution of the power given to her, to sell the property and turn over the proceeds to her brother, George Spencer Shaw; that having a mere power to appoint the use of the property to a person or persons, her direction that the property be sold by her executor,, and the proceeds used in a certain way, was not a valid execution of the power. It is, therefore, clear that the plaintiffs’ case is predicated altogether upon the contention that Mrs. Yore’s interest in the land was simply a life estate, with a power to appoint by deed in her lifetime, or by will at her death; hence, if her estate was a fee simple, the plaintiffs ’ ease must fail, or if, assuming that she had only a life estate, she made a valid appointment by will, the same result must follow.

The deeds of Hughes and Marshall and of Michael and wife conveyed the property in fee to the trustee, Peter M. Papin, in trust for the sole use and benefit • of Mrs. Papin, thereby vesting in her an equitable fee simple title to the land. She is named as the party of the third part in the deeds, and the trustee named in the deeds is directed to collect the rents and to pay over the net proceeds to her, upon her receipt alone, without any control or interference from her husband, or at her option, said trustee is to suffer her to use and occupy the property or to apply it to such úse as-she may see fit. She could control the use of the property as she wished, by written direction to the trustee. She was vested with, the power to dispose of the fee by deed, by mortgage or by will.

It has always been held by this court that the devise of real estate, with power of disposition over it, carries the fee (Rubey v. Barnett, 12 Mo. 3; Green v. Sutton, 50 Mo. 186; Cook v. Couch, 100 Mo. 29; Lewis v. Pitman, 101 Mo. 291), and that the limitation over is defeated. [Cornwell v. Orton, 126 Mo. 355; Cornwell v. Wulff, 148 Mo. 542; Roth v. Rauschenbusch, 173 Mo. 582; St. Louis Land & Bldg. Assn. v. Fueller, 182 Mo. 93.]

Roth v. Rauschenbusch, supra, was a suit by the “blood relatives” of Jacob Roth, deceased, to set aside the two deeds executed by Bridget Roth, his widow, one to the defendant August Rauschenbusch, dated August 3,1876, and a subsequent deed to the defendant Huck, dated April 10, 1894, conveying certain real estate which belonged to said Jacob Roth at the time of his death. The rights of the parties litigant turned upon the construction of the will of said Roth, the second and third paragraphs of which are as follows:

“Second. I give, devise and bequeath to my beloved wife, Bridget Roth, formerly Bridget Hook, the whole of my estate, real, personal and mixed, absolutely and forever.

“Third. It is my will, however, that after the decease of my said wife, if any of my said property shall remain undisposed of by her, then such property, that is to say, such of the property herein bequeathed to her as may not have been disposed of by her at the time of her death, shall go and descend to and be divided among my blood relations, according to the rules of descents and distributions in the State of Missouri, now in force.”.

Gantt, P. J., speaking for the court, said: “This record presents the ever-recurring difficulty of construing the language of a last will. The rules of eonstruction are so well defined and so frequently invoked that they need only be mentioned. Indeed, in this State they are largely statutory. Thus, section 4650, Revised Statutes 1899, requires that ‘all courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them. ’ Obeying’ this behest, this court on many occasions has announced that ‘the cardinal rule in the interpretation of a will is that the intention of the testator, as gathered from the whole instrument, shall control, and in arriving at such intention the relation of the testator to the beneficiaries named in the will, and the circumstances surrounding him at the time of its execution may be taken into consideration.’ ”

The absolute right of disposal of the land by deed in fee simple or otherwise, as Mrs. Papin might request and direct, could not be put in plainer or more unequivocal lahguag’e than that of the second paragraphs of the deeds. Her power of disposal is in no way restricted by any provision in the deeds, nor is there anything therein indicating an intention upon the part of the grantors to limit Mrs. Papin’s estate to an estate for life. The deeds passed the title in fee to the trustee for her, and she took just the same estate as he held under them; then, when the use was executed, she became seized of the entire title, legal and equitable; and there being no estate for life, there can be no limitation over.

It is contended by the plaintiffs that the donee of the power of appointment has not, by virtue of such power, any estate in the property, and that a will which contains no reference to the power, but devises in general terms all the testator’s property, cannot be said to include the property which is the subject of the power, and is not an execution thereof.

In the case of Hollister v. Shaw, 46 Conn. 248, it is held that to constitute an execution of a power of appointment by will, there must be a reference to the power itself, or to the subject of it, unless the intention is manifest from the fact that the will would remain without the aid of the power, or is so clearly demonstrated by words or. acts that the transaction is not fairly susceptible of any other interpretation. Practically the same rule is announced in Burleigh v. Clough, 52 N. H. 267. In Mason v. Wheeler, 19 R. I. 21, it is ruled that to give effect to an instrument as an execution of a power, the intention of the donee of. the power to execute it must be so apparent and clear that the instrument is not fairly susceptible of any other interpretation. In that case the will did not refer to the power, and made no reference specifically to the property which was subject to the power, while in the case at bar the will does not refer specifically to the property which was subject to the power.

In Haslin v. Kean, 4 N. C. 309, it is ruled that where a power is created by deed empowering a husband to appoint to whom the land shall be conveyed, and, in case of his death before his wife, empowering her to do it, there must be an actual appointment in the mode indicated, and not merely an intention in the husband, in order to defeat the wife’s right of appointment. Accordingly, when a power requires, among other requisites, that the trustee should convey to such person as the husband should limit or appoint, and the husband executed an instrument of writing authorizing the trustee to convey to whom he pleases in his discretion, this is not an execution of the power, nor a destruction of that subsequently limited to the wife.

The deeds in this case provide that “upon the death of said Sophia A. Papin, the said property (if the said Sophia A. Papin shall not have otherwise during her lifetime disposed of the same) shall be conveyed by the said party of the second part to such person or persons as the said Sophia A. Papin may by last will and testament direct, with such clauses, conditions and reservations as she may in such last will and testament require, and such last will and testament in the disposal of said property . . . shall be full authority for said party of the second part to convey said property in the manner that she may direct in said last will and testament.” It will be noted it is only in case “the said Sophia A. Papin should not, by last will and testament, have directed the disposal of said property, that the trustee shall convey the same to the said Joseph L. Papin, if living, and to his heirs in case of his death.

If Mrs. Tore (Papin.) had the power to dispose of the property under the deeds as she did do by her last will and testament, the contingency upon which the limitation over was to take effect never arose. That she had such power is not denied by plaintiffs, but they contend that it was not exercised as directed in the third paragraphs of the deeds, that is, that the will did not designate any person or persons to whom the property should be conveyed. That Mrs. Tore made no such specific direction in her last will and testament is indisputable, but, instead of so doing, she directed by her last will and testament that the property be sold and the proceeds distributed as indicated in her will. By the third paragraphs in the deeds the property is to be “conveyed to such person or persons as the said Sophia A. Papin may by last will and testament direct, with such clauses, conditions and reservations as she may, in such last will and testament require.” That this is a broad power must be conceded, but it is made still broader by the further provision in the deeds to the effect that “such last will and testament, in the disposal of said property, . . . shall be full authority for the said party of the second part to convey said property in the manner she may direct in snch last will and testament.”

Plaintiffs admit in their brief that Mrs. Papin was the “donee of a general power of appointment, and could exercise it in favor of whomsoever she pleased.”

By the ninth clause of her will the testatrix directs and empowers her executor to take charge of her real estate on Pine street, between Twelfth and Thirteenth streets, in St. Louis, and to sell the same at public or private sale for cash, or part cash, and part notes, payable not more than two years after the date of sale, and which notes shall be secured by proper first lien on said real estate, and to apply the proceeds, if necessary, to satisfy certain bequests of her will, and to pay the balance to her brother, George Spencer Shaw. This she directs to be done through her executor; but it is not left to him to decide whether he shall sell or not, and he acted in pursuance of the direction in the will.By the words “my real estate” on Pine street, in St. Louis, the testatrix, in her will, evidently referred to the property involved in this litigation, for she owned no other real estate.

Plaintiffs insist that instead of executing the power herself, Mrs. Papin delegated its execution to her executor. But it will be observed that she does not undertake to execute the power through her executor, but, on the contrary, merely directs him to sell the property and deliver the proceeds to her brother. As has been stated, the power of testamentary disposition given Mrs. Papin by the deeds is very broad, and was practically the same power of disposition that she had of any real estate she might have owned in her own right, and she was strictly executing the power when she directed the property to be sold by her executor and the proceeds, after paying certain debts, paid to her brother. The power to appoint estates in land authorized a direction for the sale of it and a distribution of the proceeds. “A power to dispose of property by will . . . includes ex vi termini any and all modes of disposal which a will is competent to make, except so far as the power of appointment by will is qualified or restricted in the instrument creating it.” [Harker v. Reilly, 4 Del. Ch. 1. c. 77 and 79.] “A general power of appointment may be exercised in favor of whomsoever donee pleases, even in favor of the donee himself, or for his benefit, or, where the donee is a married woman, in favor of her husband.” [22 Am. and Eng. Ency. Law (2 Ed.), 1133-34.]

An execution of a power will be held to have been intended, “where there has been some reference in the will or other instrument to the power; or a reference to the property which is the subject on which it is to be executed; or where the provision in the will or other instrument executed by the donee of the power would otherwise be ineffectual or a mere nullity; in other words, it would have no operation except as an execution of the power.” [Blagge v. Miles, 1 Story’s U. S. Cir. Ct. Rep. 426; Lee v. Simpson, 134 U. S. 572; Turner v. Timberlake, 53 Mo. 371.]

The will of Mrs. Yore expressly referred to the subject-matter of the power, that is, the property on Pine street, in St. Louis; as she had no other real property, the will is meaningless unless its effect is to execute the power of appointment vested in her by said deeds. In Pease v. Pilot Knob Iron Co., 49 Mo. 124, it is held that the execution of a power is a matter of intention. In Campbell v. Johnson, 65 Mo. 1. c. 440, the court said: “An intent apparent upon the face of the instrument to dispose of all the estate would be deemed a sufficient reference to the power to make the instrument operate as an execution of it inasmuch as -the words of the instrument cannot otherwise be satisfied.” And it has been held that a. reference to the property, as in the case in hand, which is the subject on which the power is to be executed, constituted a valid execution of the power. [22 Am. and Eng. Ency. Law (2 Ed.), 1116; Cooper, Admr., v. Haines, 70 Md. 282.]

Plaintiffs concede that if Mrs. Yore had devised the property to her.brother, or to any other named person, then there could be no doubt that the title would have passed to her appointee; but contend that as she did not do that, but directed the property to be sold and the proceeds applied to the payment of legacies, if necessary, and the whole or balance of the proceeds to be paid to her brother, the power was not well executed, although Mrs. Yore left sufficient personal property to pay the legacies.

Our conclusion is that the power was well executed, upon the ground of an express reference by Mrs. Yore in her will to the property on which the power was to be executed, and upon the further ground that that provision of the will with reference to the power would have no operation except as an execution of the power.

Finding no reversible error in the record, the judgment is affirmed.

All concur.