author: RAILEY, C.

text:
    BERTHA E. BERRYMAN v. SOUTHERN SURETY COMPANY, Appellant.
    Division Two,
    December 15, 1920.
    1. ACCIDENT INSURANCE: Death Resulting Prom Murder. II the insured was unlawfully murdered, his death resulted “directly and exclusively of all other causes from bodily injury sustained solely through external, violent and accidental means,” and the beneficiary is entitled to recover on an accident policy.
    2. -: Payment of Premium. If the agent of an insurance company, in dealing with a person financially able to pay the premium for a policy applied for, extends credit to him and treats the premium as paid at the time it is delivered, no injury is done the company if the agent transmit to it, in the usual course of business, the amount of the premium; and if the insured dies after the policy is delivered, but before the premium is paid to the agent or the amount transmitted by the agent to the company, the policy is not thereby avoided.
    3. -: -: Waiver. An agreement by the insured in his application that “the insurance is not effective until the policy has actually 'been issued by the company and the premium paid while I am in good health and free from all injury” is solely for the benefit of the company, and may be waived by an agent authorized to countersign the policy, deliver it and collect the premium; and where the agent delivered the policy, treated the payment of the premium as a cash transaction, looked to the insured for payment of the amount as a personal obligation to himself and sent the amount to the company in due course of business, his acts amounted to a waiver, although he was not actually paid until after the insured was dead.

      4. -: Instruction: Attempted Assault. Where the uncontradicted testimony is that deceased was not attempting to assault his murderer at the time he was shot, the insurance company is not entitled to an instruction telling the jury that if the insured was making an assault upon the murderer with a chair, with the intention of killing him, the verdict must be for the company on the accident policy; especially, where the jury -might conclude from all the evidence that, if the insured did attempt to use the chair, he was doing so in defense of his own life, after discovering that his assailant was arm.ed with a gun and was about to shoot him.
    5. -:-: Kefusal: Covered by Others. Where the trial court gives an instruction which is as favorable to appellant as the law will approve, it is not error to refuse or necessary to give another requested relating to the same subject-matter.
    6. -:--: Legal Justification: Undefined. In a suit on an accident policy, where the insured had been killed, failure to define the words “legal justification” in an instruction telling the jury that intentional killing is presumed to be unlawful, and the jury will be justified in acting upon such presumption unless they find from the evidence that “there was legal justification” for the killing, and if they find the killing “was unlawful and without legal justification it constituted an'accident within the meaning of the policy,” is not error; and if defendant thinks the words, without definition, might be misleading, it is its duty to ask an instruction Refining them.

      7. -: Vexatious Delay. If under the evidence defendant had reasonable grounds for litigating the Question whether the insured lost his life as a result of an accident, and the evidence is such that, if the jury had found for defendant on that question, there could be no recovery, it is error to submit the question of vexatious delay to the jury. The penalty cannot be imposed merely because the jury, after a trial, by its verdict finds the insured’s death to have been accidental; in addition, the Evidence and circumstances must show that the refusal to pay was wilful and without reasonable excuse.
    Appeal from Buchanan Ciruit Court.—Hon. Thomas B. Allen, Judge.
    Affirmed (on condition).

      Culver & Phillip for appellant.
    (1) The insured did not meet death solely through external, violent and accidental means, and the trial court should have so instructed the jury. Taliaferro v. Travellers ’ Prot. Assn., 80 Fed. 368; Lovelace v. Travellers ’ Assn., 126 Mo. 104; Meister v. Assurance Corp., 179 Pac. (Ore.) 913; Hutton v. Ins. Co., 267 111. 267, L. R. A. .1915 E. 127; Price v. Occidental Ins. Co., 147 Pac. (Caí.) 1175; Casualty Co. v. Curry, 65 So. 852. (2) The policy was not in force at the time of insured’s death, because the first premium had not then been paid and the court erred in so refusing to instruct the-jury. Bell v. Ins. Co., 166 Mo. App. 390; Pierce v. Ins. Co., 174 Mo. App. 383. (3) There was no evidence of vexatious delay and that question should not have been submitted to the jury and the verdict and judgment for penalties should be set aside. Non-Royalty Shoe Co. v. Phenix Assurance Co., 210 S. W. 37. (4) The court erred in admitting evidence as to the manner of payment- of premiums on other policies which were not shown to contain a clause similar to the policy in question requiring payment of first premium before policy became effective. (5) The court should have instructed the jury as asked in defendant’s Instruction F, that if the insured was killed hy another while making an assault with a chair held in his hand on such other, then the plaintiff could not recover. Cases first above cited. (6) The court erred in using the terms “legal justification” in the instructions asked by plaintiff without defining- their meaning. Turnbow-v. Dunham, 272 Mo. 65; Montgomery v. Railroad, 181 Mo. 513:

      Graham & Silverman and Strop & Mayer for respondents.
    (1) The death of Berryman, resulting from the shots fired by Richardson, constituted death by accident, through external, violent and accidental means. Lovelace v. Ins. Co., 126 Mo. 104; Collins v. Fidelity & Casualty Co., 63 Mo. App. 253; Phelan v. Travelers Ins. Co., 38 Mo. App. 640; Casualty Co. v. Herroll, 98 Tenn. 591, 40 S. W. 1080; Accident Co. v. Carson, 34 L. R. A. 301. (2) The delivery of the policy to Berry-man, with an express waiver of the payment of the premium by the authorized agent of the defendant company, put the policy in force. James v. Ins. Co., 148 Mo. 1; Crowder v. Ins. Co., 115 Mo. App. 540; Rudd v. Ins.,- 120 Mo. App. 1; Manning v. Ins. Co., 176 Mo. App. 688; Bell v. Ins, Co., 166 Mo. App. 398. (3) There was-ample evidence of vexatious refusal to pay and this question was properly submitted to the jury. Fay v. Ins. Co., 268 Mo. 373; Glover v. Ins. Co., 193 Mo. App. 489; Kellogg v. Ins. Co., 133 Mo. App. 463. (4)' The defendant having denied the agency of Nathan Evans, the admission of evidence showing the manner of payment of premiums on other policies, even though not shown to contain a clause similar to the policy in question, was not error, because such evidence was admissible to establish the relation of principal and agent between the company and Evans, if for no other purpose. (5) Defendant’s Instruction F was properly refused. It was not justified by the evidence and does not require the jury to find either that Berryman was using the chair as an instrument of offense or that it was of a character likely to produce death or great bodily harm. Kouns v. State, 3 Tex. App. 13; State v. Harper, 69 Mo. 425; State v. Nueslein, 25 Mo. 111. (6) The use of the words “legal justification” in the plaintiff’s instruction, without definition of the words, was not error. (7) In its Instruction 1, given for it, defendant used the terms “without any just cause or provocation,” which is equivalent to the words “legal justification,” used in plaintiff’s instruction, and therefore the defendant cannot complain of the plaintiff’s failure to define the term. Harvester Go. v. Spires, 223 S. W. 803; Anderson v. Sash & Door Co., 182 S. W. 819; Bettoki v. Coal & Mining Co., 180 S. W. 1023.
   RAILEY, C.

This action was commenced by plaintiff, as the widow of Johnson E. Berryman, deceased, in the Circuit Court of Buchanan County aforesaid, on December 14, 1916, to recover of above defendant, as beneficiary, on an accident policy, issued by it, insuring said deceased against death and injuries resulting from accident. The cause was defended on the ground that the policy sued on was never in force, because no premium was shown to have been paid prior to the death of deceased; and also on the ground, that death did not result, “directly and exclusively of all other causes, from bodily injury sustained during the life of this policy, solely through external, violent and accidental means (excluding suicide, sane or insane, or any attempt thereat).”

The policy is in ordinary form, and contains the language above quoted. It was issued January 9, 1916, for a term of one year. Deceased was killed by William Richardson, Eehruary 18, 1916. Proof of his death was made in accordance with the requirements of said policy. Respondent is named as the beneficiary therein. The only witness who testified as to what occurred, in respect to the killing, was William Richardson..

Both Richardson and deceased were in the employ of Drinkard-Seager-Vallery Company and engaged in the livestock business at the stockyards in St. Joseph, Missouri. Richardson was not present at the trial, but the testimony which he gave, in the case of State of Missouri vs. himself, wherein he was charged with the murder of Berryman, was offered in evidence by appellant and, by stipulation, was used as the testimony of Richardson given in said cause. It appears from Richardson’s testimony that deceased complained - of statements made by Richardson, which the latter conceded he had made. A quarrel ensued, and Richardson testified that he started to leave the room; that deceased said, “by God, I will knock your damned block off,” struck witness behind the ear, staggered him and, as witness reached after his cap, which had fallen off, deceased kicked him in the belly, as he tried to get out. Richardson said he then went down the hall by the elevator, stopped for a second- or -two, and thought he would go back, but changed his mind and went down stairs; that he finally reached the Transit House Cafe, and found Rex Duncan there eating his dinner; that he asked Duncan for a gun. The latter went behind the bar, got a pistol, and asked Richardson what he wanted to do with it. 'He said to Duncan, “I just want to four-flush.’ ’ He got the gun, put it' in his left-hip pocket, and walked out. The scabbard was on the pistol. He testified that he then went back to the office of his company and found Vallery and Berryman talking together. He said to deceased, “John, I would like to talk to you in the other room.” Richardson turned, walked towards the room, and says deceased remarked, “I will go any God-damned place with you,” and they both entered the room. Richardson, in chief, testified as follows:
“Q. What did he'do when he came in the door! A. He walked in the- room; pushed the door shut and snapped the snap on. I said,-‘Set down, and let’s talk this over. ' I think you and I can fix things up, and I believe- I can convince you that you are wrong.’ He grabbed the chair with his right hand and said, ‘God damn you, I have been wanting you here for a long time; I am going to knock your God-damned head off.’ He came at me with the chair; I ran my hand in my pocket. I was a little slow running my hand in my pocket, and he grabbed the gun with his left hand and as he grabbed tlie gun I pulled the trigger. I think it was right against him. He dropped the chair and grabbed me bv the arm with bis right hand and threw me on the table. I said, ‘Stop, John.’ I wrenched my gun from bis hand and I shot twice—I didn’t know—he went down on the floor and I stepped around him and set the chair down, unlocked the door, went out, walked, over to the telephone and called my wife and said, ‘I am in trouble.’ ”

On cross-examination, Richardson testified:

“Q. You thought it -was necessary for -you to get a gun for you to get along in' a nice peaceable way. A. Yes, sir, I did. . . .
“Q. What did you mean by, ‘to make a four-flush’? A. Well, I wanted something with me to protect myself. I had already known I wasn’t able to fight Mr. Berryman, and I felt I ought to have something to protect myself, if he assaulted mé.
“Q. And when you went back to talk to Mr. Berry-man you felt you need a gun? A. Yes, sir. . .
“Q. What did you expect to do with the gun if you didn’t expect to shoot? A. I expected to keep him off of me if he went to jump on me. ... I thought I would talk to Mr. Berryman and try to adjust our matters in a nice, respectable way, and get into no fight and have no trouble. . . .
“Q. All you’ said to Mr. Berryman was, ‘I am ready to talk to you now, Jack. Come in this room with me’? A. Yes, 'sir.”

Richardson testified that when deceased entered the room, he (deceased) locked the door and put his hand on thp chair; that he (witness) was at west end of table. He further testified:

“Q. You didn’t offer to pull your gun then when he locked the door, did you? A. No, sir.
“Q. Where was this chair setting that- Mr. Berry-man took hold of? A. Well, I think it was setting at the typewriter that was in the room, right in the east comer. . . .
“Q. You asked Mr. Berryman to get a chair and be seated, didn’t you? A. Yes, sir. . . .
“Q. After he put his hand on the chair, what did he do? A. I spoke to him and asked him to be seated, and he says, ‘God damn yon, I have got yon where I want yon, I am going to knock your —--block off.’
“Q. What did you think he was going to do when he put his hand on the chair? A. I didn’t give that a thought. I didn’t think %vhat he was going to do.
“Q. There was nothing hostile about his putting his hand on the chair, was there, Mr. Richardson? A. No, not necessarily.”

He said Berryman was dead within three or four minutes after he entered the room. This witness further testified:

“Q. You say he had this chair lifted over your head? A. No, sir, I didn’t say any such thing. I said he had this chair in his hand; he was coming with it in his hand. .
“Q. Was it up or down? A.' He was coming up.
'■ “Q. Describe how? A. He had hold of the chair and was coming with it.
“Q. Was it up or down? A. It was about even with his body or head.
“Q Were the legs of the chair down or up? A. I kind of think the legs of the chair were down. . . .
“Q. Had you drawn your pistol at that time? A. When he started towards me with the chair, I drew my pistol.
“Q. What did you say to him? A. I didn’t say anything until he had me on the table.
“Q. You had shot Trim before that? A. Yes, sir.
“Q. Then you shot him twice after he had you in that position? A. I pulled the gun up in some way and shot twice. . . .
“Q. When, did Mr. Berryman drop the chair? A. ■Well, sir, I don’t know that I can tell you when he dropped the'chair. He must have dropped it tvhen he got close to me.”

Deceased was blind in his right eye.

Dr. Lynch, the Coroner, testified that deceased was shot in the breast. “Q. Was that shot fired from the front or in the rear? • A. It was fired from in front.” He said that either of the three shots would have caused death. He was shot in the neck and in the back of his head. He gave it as his opinion that the shot in the back of the head killed him immediately. He said deceased was a large, well-built man and weighed about two hundred pounds.

The premium due on the policy at the time of its delivery was not paid until several days after Berry-man was killed. It was then paid to Nathan Evans, the agent who delivered the policy to deceased. The- evidence relating to this subject will be considered later.

The case was tried before a jury, and resulted in a verdict for plaintiff for the face of said policy, $7,500, and interest, amounting to $557.57, together with $750 for vexatious refusal to pay, and $1,000 attorney’s fees. Defendant, in due time, appealed the cause to this court.

The rulings of' the court, in respect to the admission and exclusion of testimony, the giving and refusal of instructions, as well as such .other matters as may be deemed necessary, will be considered in the opinion.

I. We are called upon to construe the insuring clause of the policy sued on, which reads as follows:

“(I) The effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy, solely through ex-ternal, violent and accidental means.”

Under Proposition 1 of its “Points and Authorities,” appellant contends, that: “The insured did not meet death solely through external, violent and accidental means, and the trial court should so have instructed the jury.”

The following authorities are cited in support of the above contention: Taliaferro v. Travelers’ Protective Assn., 80 Fed. 368; Lovelace v. Travelers’ Assn., 126 Mo. 104; Meister v. Assurance Corporation, 179 Pac. (Ore.) 913; Hutton v. Ins. Co., 267 Ill. 267, 108 N. E. 296; Price v. Occidental Ins. Co., 169 Cal. 800, 147 Pac. 1175; Prudential Casualty Co. v. Curry, 65 So. (Ala.) 852.

The opinion in the Taliaferro case was written by Thayer, J., and some of the facts, which distinguish the case from the one at bar, are as follows:

“Henry Frith went outside of thé gate, as he was requested to do, and entered into' a conversation with the deceased, which was carried on at first in a low tone, and apparently in a friendly spirit. What was said by the parties at first was not understood. The conversation finally became louder, and both parties seemed to became angry. Very soon Frith was heard to say, “I don’t want any trouble,’ and the deceased replied, ‘You must not insult me,’ to which Frith answered, ‘You must not insult me.’ Thereupon the deceased was heard to say ‘he must have revenge; put yourself in shape, ’ whereupon Frith pulled off his coat, and threw it upon the fence. Immediately thereafter the deceased pulled a pistol, rushed upon Frith, and struck him with the pistol in the face, knocking him against a tree. Frith then drew his own pistol, and shot the deceased several times, inflicting wounds of which he shortly thereafter died.”

On page 370, Judge Thayer, speaking of deceased, said: “He was the first to draw a deadly weapon, accompanying - that action with the exclamation that ‘he must have revenge, ’ and at the same time warning Frith ‘to put himself in shape.’ This can he regarded in no other light than an invitation to a deadly encounter, in which the deceased voluntarily put his life at stake, and deliberately took the chances of getting killed. . . . The case on which counsel for the plaintiff in error appears to place most reliance is Lovelace v. Association, 126 Mo. 104, 114, 28 S. W. 877, but in that case, while it appeared that the deceased had engaged in a quarrel which he might very well have avoided, it did not appear that he had drawn a weapon of any sort, or that he knew, when he engaged in the quarrel, that his opponent was armed. So far as the case showed, the deceased had no reason to expect, when he engaged in the encounter, that it would result in any bodily harm to either party, and for that reason the court appears to have held that the unexpected result of the affray was an accident, so far as the deceased was concerned.”

We have set out the facts very fully in this case. There is no evidence tending to show, nor is it claimed, that deceased had any gun or knife in either of the encounters which he had with Richardson: It is equally as clear that Richardson was not armed when deceased struck him in the first encounter. Richardson left the scene of the first affray, without any intimation that he intended to return and renew the conflict. After obtaining and secreting the pistol in his hip pocket, he went back to the room where deceased was located, called him by his given name, and asked him to come into the other room. There is nothing in the testimony to indicate that deceased knew, or had reason to believe, that Richardson was armed, or that he was inviting deceased into said room for the purpose of renewing* the fight. On the contrary, it can hardly be believed, that deceased would have voluntarily followed Richardson into the other room, without taking some means to protect himself, had he known or thought that Richardson was then armed. After both had arrived in the room, Richardson said he asked deceased to take a chair; that the latter had his hand on one, near the typewriter, and'that deceased then came towards him with the chair, but he nowhere testified that deceased struck him, or struck at him with the chair. On the contrary, he testified that deceased “must have dropped it when he got close to me.” We think the evidence is'clear that Richardson, after obtaining the pistol, induced deceased to come into the other room, away from his companion, in order that he might obtain revenge for the injury previously inflicted upon him by deceased. The testimony of Richardson in this case was that given by him in the criminal court where his liberty was at stake. The mouth of deceased was closed in death, and no one was present to contradict Richardson, yet, as shown by the testimony previously set out, we think the jury was fully justified in finding that deceased was unlawfully killed by Richardson, without any reason upon the part of deceased for believing that Richardson was armed and intended to do him bodily harm.

The facts presented in the other cases cited can be distinguished from those at bar. We are satisfied with the principles of law declared in Lovelace v. Travelers’ Association, 126 Mo. 104. To same effect are Collins v. Fidelity & Casualty Co., 63 Mo. App. 253; Union Casualty Co. v. Harroll, 98 Tenn. 591; Interstate Business Men’s Accident Assn. v. Lester, 257 Fed. 225.

The foregoing contention of defendant does not meet with our approval, and is accordingly overruled.

II. Appellant contends, that “the policy was not in force at the time of the- insured’s death, because the first premium had not then been paid and the court erred in so refusing to instruct the jury.”

In support of above contention, we are cited to the commencement of said policy, which reads: “In consideration of the premium of sixty-five dollars, and the statements in the application for this policy, a copy of which is endorsed hereon and made a part hereof,” etc. We are also referred to that, part of the application which reads: “16. I understand and agree that the insurance is not effective until the policy has actually been issued by the company and the premium paid while I am in good health and free from all injury; and that the company shall not be bound by any knowledge of or statements made by or to any agent unless written hereon. ” .

The above application is addressed to the Southern Surety Company, at its general offices in St. Louis, Missouri. It is signed: ‘ ‘ The travelers Insurance Company, by John.E. Ahern, Secretary. Johnson E. Berry-man, Insured. ” It was dated at Hartford, Conn., on January 24,1916.

We are not advised as to why the above application was addressed to the appellant, and signed by the Travelers Insurance Company. It is clear from the evidence before us that Nathan Evans was the accredited agent of appellant at St. Joseph, Missouri, when the policy in controversy was written and delivered to deceased, although the name of' Alfred W. Evans, his son, was used for that of Nathan Evans. In other words, the latter testified, the business, at the instance of defendant, was done by him in the name of his son.

Nathan Evans was examined as a witness, in behalf of defendant. On cross-examination he testified:

“Q. The policy that was issued to Johnson E. Berryman purports to be signed by A. W. Evans. Did your son or A. W. Evans, ever countersign that? A-. No, sir, I signed it.
“Q. That is countersigned by you? A. Yes, sir.
“Q. Did you have authority, and was it your custom, to countersign and deliver policies at St. Joseph? A. Yes, sir.
“Q. What has been the custom during your agency for this company, what was its custom with reference to requiring payment at the'time the policy was issued? A. We did not require it.
“Q. You did not require it? A. No, sir.
“Q. And such was not the custom? A. Such has not been.”

He testified that this policy was issued on January 9, 1916, but was held up until after January on account of the one-eye clause, that he sent the company a remittance for the February account which covered the Berryman policy; that, at any rate, defendant got the money. Witness further testified:

“Q. In any event they kept an account with you of the policies that you issued and delivered, did they not? A. Yes, sir.
“Q. It was your custom to report the policies when issued? A. Yes, sir.
“Q. You were charged by the company with the amount of the policies when you reported their issuance ? A.' Yes, sir.
“Q. That was the custom and method of their doing business? A. Yes, sir.
“Q. The agent is charged with the premium and if he saw fit to extend a credit, why, he did so, that is light, is it? A. Yes, sir.
“Q. That was your usual method of doing business? A. Yes, sir.
“Q. And the company, as you say, always charged you with the account upon the issuance of the policy?' A. That is right.”

.He said Berryman told him h'e would not give him a check for the premium when the policy was delivered, but would hand it to him in a few days, He told Berry-man this was satisfactory. He met Berryman in the Exchange Building one day, and deceased asked him to come back on the elevator and he would pay him the premium on that policy. He told Berryman he was in-a hurry, and he could hand it to him the next time he came down, or that he would see him later. Witness further testified as follows •

“Q. You representing this defendant and having authority to issue policies, at the time you did deliver this policy, delivered it to Berryman, you delivered it with the understanding and intention that it was to he in force at that, time, didn’t you? A. Surely.”

Other facts and circumstances were, given in evidence tending to corroborate the foregoing testimony of Evans.

If the agent, in dealing with men who are financially good, extends credit to them, and treats the premium as paid at the time the policy is delivered, it inflicts no injury upon the principal, if the agent transmits to the principal in the usual course of business, the premium which the insured "was expected to pay. If this is considered a matter of importance, there is no reason why the agent might not be required to give a bond, covering the loss, if any, occasioned by non-payment of the premium.

Aside, however, from the foregoing, there are -other reasons for overruling above contention. It is manifest, that the above quoted provision in respect to the payment of the. premium, is inserted solely for the benefit of the insurer, and may be waived by. an agent authorized to countersign the policy, deliver same and collect the premium thereon. [Edwards v. Business Men’s Acc. Assn., 221 S. W. (Mo. App.) 422; Dunken v. Aetna Life Ins. Co., 221 S. W. (Tex.) 691; Malone v. State Life Ins. Co., 213 S. W. (Mo. App.) l. c. 878; Mooney v. Ins. Co., 80 Mo. App. l. c. 195; James v. Mutual Life Assn., 147 Mo. l. c. 10, 11, 12; Titus v. Ins. Co., 71 N. Y. 419; Hollis v. State Ins. Co., 65 Iowa, 454, 12 N. W. 774; Joyce on Insurance, sec. 1353.]

In this case, the agent delivered the policy, treated the payment of premium as a cash transaction, looked to Berryman for repayment to him as an individual obligation, and sent the amount of the premium to defendant in due course of business, as he would have done had the premium been paid in cash. This subject is considered and discussed with marked ability, by Sturgts, J., in the Malone case supra, where numerous authorities are cited and the conclusion above reached is fully sustained.

Under the facts heretofore stated, defendant is es-topped from showing that the policy is void, for failure of the deceased to pay the first premium in cash when the policy was delivered. [Dobyns v. Bay State Ben. Assn., 144 Mo. l. c. 109, and cases cited; Mo. State Life Ins. Co. v. Salisbury, 213 S. W. (Mo.) 791; Dunken v. Ins. Co., 221 S. W. (Tex.) l. c. 695, and cases cited.]

White, C., in the Salisbury case, supra, at page 791, correctly states the rule of law, in respect to this matter, as follows:

“It is held, where a policy acknowledges the receipt of the first premium, that such receipt might be disputed for some purposes as any other receipt, but that the payment of the first premium, as recited, could not be disputed for the purpose of invalidating the instrument.” -

Without prolonging this branch of the discussion, we are of the opinion that the foregoing contention of appellant, as applied to the facts of this case, is unsound and should be overruled. •

III. Appellant complains of the action of the trial court in refusing, to give its instruction marked “F,” which reads as follows:

“If you believe from the evidence that at the time John E. Berryman was shot and killed by William Richardson, he, the said Berryman, was making an assault upon the said Richardson with a chair held in with the intention of killing the said Richardson or doing him great bodily harm, and that in resisting such assault so being made by said Berryman said Richardson shot and killed said Berry-man, then your Verdict will be for the defendant.” '

We have very fully set out the evidence of Richardson as to what occurred when he killed Berryman, and have fully considered the law relating to this subject under Proposition I supra. Aside, however, from the foregoing, the evidence does not clearly show that deceased was attempting to assault Richardson with the chair. On the contrary, deceased had dropped the same before he was shot. Richardson testified that “he must have dropped it when he got close to me.”

Again, Richardson had armed himself, went back to the scene of former conflict, and invited deceased into the other room, away from his companion. This instruction ignores the fact that the jury may have concluded from all the evidence that deceased, if he did attempt to use the chair, was doing so in defense of his own -life, after discovering that Richardson was armed with a gun and was about to shoot him.

The court, however, at the instance of defendant, gave to the jury instruction numbered I, which reads as follows:

“If you believe from the evidence that John E. Berryman assaulted William Richardson without any just cause or provocation, and that at the time he committed said assault he knew, or had reasonable cause to believe, under all the facts and circumstances, that said Richardson was armed with a deadly weapon, then said Berryman is presumed and must be held to have known that as the probable consequences of making said assault he was liable to be killed or suffer great bodily harm, and under such circumstances your verdict must be for the defendant.”

The foregoing instruction presented the ease to the jury in terms as favorable to defendant as the law would allow. There was, therefore, no necessity for the giving of said instruction “F,” as the subject-matter of same was fully covered by instruction numbered I suprq. We are of the opinion, that the court committed no error in refusing said instruction as asked.

IV. The trial court is charged with having committed error in giving plaintiff’s instruction numbered 2, without defining “legal justification.” Said instruction reads as follows.

“The court instructs the jury that the intentional killing with a deadly weapon of one human being by another is presumed in law to,he unlawful, and Ihe jury will be justified in acting upon this presumpUI12egs up0n all of the facts and circumstances as detailed in evidence the jury find that there was legal justification on the part of Richardson in killing said Berryman. And the court further instructs the jury that if they find and believe from the evidence that the killing by Richardson of Berryman, as detailed in evidence, was unlawful and without legal justification, then the skid killing of Berryman by Richardson constituted an accident within the meaning of the policy sued upon in this case, notwithstanding the act of said Richardson in killing said Berryman was intentional on the part of said Richardson. ’ ’

Richardson was not on trial in this case. The jurors were informed, in substance, that the intentional lolling of deceased by Richardson, with the gun mentioned in evidence, was presumed to be unlawful, unless the killing was done in self-defense. It went further, and told the jury that if the latter believed from the evidence that Richardson’s act in killing deceased was unlawful and without legal justification, etc., the said killing constituted an accident, etc. The defendant sustained no possible injury in the use of the words “and without legal justification,” as the jurors were required to find that the killing of deceased was unlawful. If counsel for appellant thought the jury might be misled by the use of the words “without legal justification,” they had the right to ask an instruction defining said language. [Browning v. Railway Co., 124 Mo. l. c. 71-2; Wheeler v. Bowles, 163 Mo. 398; Smith v. Fordyce, 190 Mo. l. c. 30; King v. St. Louis, 250 Mo. l. c. 514; Powell v. Railroad, 255 Mo. l. c. 453-4; State ex rel. United Rys. v. Reynolds, 257 Mo. l. c. 30; Winterman v. Rys. Co., 203 S. W. l. c. 487; O’Hara v. Lamb Const. Co., 206 S. W. (Mo. App.) l. c. 256; Cook v. City of St. Joseph, 220 S. W. (Mo. App.) l. c. 694.] They were content, however, in their instruction numbered I supra, given by the court at their instance, to use in substance the same language complained of in above declaration. It reads as follows:

“If you believe from the evidence that John E. Berryman assaulted William Richardson without any just cause or provocation” etc., your verdict must be for defendant.

We are of the opinion, that the foregoiiig contention is without merit, and should be overruled.

V. It is insisted by appellant that there was no evidence of vexatious delay, and that the court committed error in submitting this question to the jury. There are some proceedings, in respect to defendant’s conduct, shown by the record, which are not worthy of commendation, yet, taking the case as a whole, we are of the opinion that appellant had the legal right, on the evidence before us, to litigate with plaintiff the question as to whether deceased lost his life as the result of an accident. Richardson was the only eye witness to the killing. The liability of defendant depended upon the testimony which Richardson gave at the trial. If the jury had found for defendant upon this issue, there could have been no recovery. On the other hand, it was the province of the jury to determine whether the death of deceased was the result of an accident, or whether he should have- anticipated that death or bodily harm might come to him, by pursuing the course which he took, at the time of the tragedy.

Plaintiff bases her right of recovery, as to the penalties allowed, on Section 7068, Revised Statutes 1909.

In the recent ease of Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. l. c. 422-3, 210 S. W. 37, Faris, J., speaking for this Division, in construing the above section, said:

“We are convinced that a vexatious refusal to pay an insurance loss is not to be deduced from the mere fact that upon suit the verdict is adverse to the defendant. [Patterson v. Insurance Co., 174 Mo. App. 44; Keller v. Insurance Co., 198 Mo. 440.] If the fact of an adverse decision is to constitute the sole and decisive test, it would be fairly plain that this court was in error when it held the statute to be constitutional. For it is only upon the fundamental ground of a vexatious refusal to pay that the penalty inflicted by the statute can be uphelcT. The defendant is to be allowed to entertain an honest difference of opinion as to its liability, or as to the extent of such liability under the contract of insurance, and to litigate that difference; otherwise, the provision of the statute is obviously so shot through with duress as to be invalid upon any view. It is from the very nature of the case, and from the protean form which the facts of the case assume, difficult, if not impossible, to frame any general rule for use in determining when a refusal to pay is vexatious and when it is not. Judge Tkcmblb, of the Kansas City Court of Appeals, has announced a rule which commends itself to us so far as it goes, and it goes as far as it is wise or safe to go in announcing a rule to govern cases wherein the facts are as variant as we find them in insurance cases upon this question. This rule reads thus:
“ ‘And while affirmative proof is not required to show vexatious refusal, yet the penalty should not be inflicted unless the evidence and circumstances show that such refusal was wilful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial; and merely because the judgment, after trial, is adverse to defendant's contention, is no reason for inflicting the penalty,’ [Patterson v. American Ins. Co., 174 Mo. App. l. c. 44.] ”

Having reached the conclusion, that defendant had reasonable grounds for defending the case upon the merits, in respect to foregoing matter, we are of the opinion that the < question of vexatious litigation ought not to have been submitted to the jury in this case.

On June 26, 1917, the court entered a judgment upon the verdict of the jury in favor of plaintiff for $8,057.50, being the amount then due on the policy, and likewise entered, as a 'part of said judgment, in the form of penalties and attorneys’ fees, $1,750. In our opinion, the above judgment is excessive'as to said sum of $1,750, allowed as penalties and attorneys’ fees.

If respondent will remit, as part of said judgment herein, within twenty days from the filing of this opinion, the said sum of $1,750, as of the date of said judgment, the remainder of said judgment will stand affirmed; otherwise, the cause will be reversed and remanded for a new trial.

White and Mozley, CC., concur.

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

All of the judges concur,


source: Caselaw Access Project

author: MOZLEY, C.

license: Public Domain

text:
    THE STATE ex inf. LAWRENCE BOTHWELL ex rel. ROY GRAY et al., Appellants, v. GEORGE C. SCHUSTER et al.
    Division Two,
    December 15, 1920.
    1. STATUTES: Construed Together. All laws, written and unwritten, of whatever sorts and at whatever different dates established, are. to be construed together, contracting, expanding, limiting and . extending one another into one system of jurisprudence as nearly harmonious and r'ounded as it can be made without violating unyielding or unwritten terms.
    2. CONSOLIDATED SCHOOL DISTBICTS: Boundaries. By the Act of March 14, 1913, the boundaries of a consolidated school district are independent of and have no reference to the boundaries of common school districts. The formation of a consolidated district is dependent on a community of proper area or school enumeration alone, without reference to the boundaries of existing common school districts or counties.
    3. -: -: Existing School Law. The method of fixing the boundaries of a consolidated school district prescribed by the Act of 1913 is exclusive of any general provision of the then existing general school, law. Sections 10837 and 10842, Revised Statutes 1909, apply to a different kind of consolidated school districts from those authorized by the Act of 1913, and have no application to districts authorized by the later act, which are organized by an entirely different method.
    4. --: -: -: Size of Remaining Districts. A consolidated school district may be organized under the Act of 1913 notwithstanding, when a portion of the territory of a common school district is included within its boundaries, twenty persons of school age will not be left within such portion of the common school district as remains—a' condition prescribed by Section 10837, Revised Statutes 1909. Said Section 10837 is not repealed by the Act of 1913, but said act recognizes that the remaining parts of an existing district, after a consolidated district is formed, may be insufficient to sustain a school, and provides for the annexation of ' the remaining parts to other districts.
    5. -: In Two or More Counties. The Act of 1913 provides for the organization of a consolidated school district embracing lands situate in two or more counties.
    6. -: Discretion of County Superintendent: Welfare of Adjoining District. The requirement of the Act of 1913 that the county superintendent, -in laying out the boundaries of a consolidated school district, shall have due regard for the welfare of the adjoining districts, vests the superintendent with a discretion which is not reviewable by the courts. The statute does not prescribe any certain method to be followed, but requires him to so locate “the boundary lines as will in his judgment form the best possible consolidated district, having due regard for the welfare of the adjoining districts,” and those words invest him without a sound official discretion which is not reviewable by the courts, and do not make available evidence to show that he did not exercise such “due regard.” If his judgment has not been sound, it can be corrected only by the legal voters at the special election.
    Appeal from Buchanan Circuit Court.—Hon. Thomas B. Allen, Judge.
    Affirmed.

      Ryan & Zwick and Randolph & Randolph for appellants.
    (1) The act approved March 14, 1913, which provides for the organization of consolidated school districts is but a part of a general system of laws providing for tbe education of the youths of the state. And in determining the question as to what law applies we should take into consideration each and every statute that is a part of the school system and that throws light and is applicable to the- question to be determined. (2) The Legislature that enacted the consolidated school distinct law recognized and expressed the fact that said act was not a complete law within itself and that to carry out the intent and provisions of said law it was necessary to go to the general school law of the state as embraced in Chap. 106, R. S. 1909. The Legislature specifically, by Section 1 of said act, provides that “all laws applicable to the organization and government bf town and city school districts as provided in Article IV, Chapter 106, Revised Statutes 1909, shall be applicable to districts organized under the provisions of this act.” Section 10881 provides that all the provisions of Section 10837 relating to the changing of boundary lines of common school districts shall apply’to town, city and consolidated school districts. Section 10837 provides “that no new district shall be created or boundary line changed by which any district shall be formed containing within its limits. by actual count less than twenty persons of school age or by which any district shall be left containing within its limits by actual count less than twenty persons of school age.” In the attempted formation of Consolidated District No. 2 of Clinton County, the district in controversy, it was formed by changing the boundary lines and taking parts of Districts Nos. 30, 32, and Grower City District, of Clinton County, and Districts Nos. 30, 49, and 50, common school districts of Buchanan County; and in so changing the boundary lines of said common school districts' and taking a part of the same the uncontradicted evidence is that there were not left in the remaining part of the district the number of children as required by said statute. Therefore, for this reason, said attempted consolidation was void. State ex inf. v. Sweaney, 270 Mo. 690.' (3) It cannot be said with reason that when the Legislature used the word “organization” in Section 1 of the act, it intended it to apply not to organization but to government and management of the school, for the. Legislature used both the words “organization and government” and the word “organization” has a fixed, clear and well-defined meaning. Board of Supervisors v. Duke, 113 Ya. 94; Copeland v. School Board, 215 Pa. 359. The word “organization” is clearly used in the sense of formation. State v. School District, 54 Minn. 213; State v. Powers, 5 S. I). 627; In re Sanders, 53 Kan. 191. (4) The la.w required Superintendent Sims to visit the community and investigate the needs and determine the exact boundaries of the proposed consolidated district and to so locate the boundaries as in the judgment of the superintendent would form the best possible consolidated district. In doing- so the law required of her to have due regard also for the welfare of the adjoining-districts. Under'this law a discretionary power is given to the superintendent to locate the boundaries of the district and if this discretion has been honestly and reasonably exercised then her action is not subject to judicial inquiry. If, on the other hand, the evidence shows that no inquiry or investigation as to the needs of the districts were made, that no regard or thought was given to the adjoining districts, and that her action was unreasonable and arbitrary and resulted in injury to the public, then her act was subject to judicial review. State ex rel. v. Lafayette County Court, 41 Mo. 321; State ex rel. Kellerher v. School Board, 134 Mo. 296; State ex rel. V. Dryer, 183 Mo. App. 481; State ex rel. v. Adcock, 206 Mo. 256.

      H. K. White and R. H. Musser for respondents.
    (1) The constitutionality of the act is now unquestioned. State ex rel. Dist. v. Gordon, 261 Mo. 631; State ■ex inf. v. Morgan, 268 Mo. 272; State ex inf. v. Stouffer, 197 S. W. 252. (2) Section 5 provides for the annexation of parts of districts remaining after the formation of consolidated districts in a summary manner. State ex inf. v. Stouffer, 197 S. W. 252; State ex rel. v. Hill, 152 Mo. 238; State ex inf. v. Jones, 266 Mo. 198; Hislop v. Joplin, 250 Mo. 599; Copeland v. St. Joseph, 126 Mo. 431; Birch v. Plattsburg, 180 Mo. 413; State ex inf. v. Smith, 271 Mo. 177. (3) The determination of the boundaries of the district proposed .by the petitioners is left by Section 3 of said act solely to the judgment of the superintendent, and the question of the correctness of the judgment exercised by the superintendent and the regard had for the welfare of the adjoining districts are required to be passed upon by the voters of that community within said district at the special election held solely for this purpose, and the measure of judgment or of due regard is solely vested in the superintendent and is not a judicial question. State ex inf. v. Cleaves, 268 Mo. 105; State ex inf. v. Stouffer, 197 S. W. 251; State ex inf. v. Jones, 166 Mo. 197; Cross v. Moreland, 190 S. W. 962; State ex rel. v. Sims, 201 S. W. 910. (4) If Mrs. Sims, Superintendent, committed any error of judgment in locating the boundaries of this district, that error, absent a showing* that the approval of those boundaries by the voters was procured by deception and fraud, cannot be corrected by proceedings in quo warranto, and the private wrongs or grievances of the relators are not a matter to be inquired into by quo warranto. The State is the only aggrieved party, and unless it has been injuried thereby the writ should not be awarded. State ex inf. v. Duncan, 265 Mo. 34; State ex inf. Crow, v. Railroad, 176 Mo. 687; State ex inf. v. Stouffer, 197 S. "W. 252; School Dist. v. District, 195 Mo. App. 504; State ex reí. v. Job, 205 Mo. 32; State ex inf. v. Fleming, 158 Mo. 563; State v. Weatherby, 45 Mo. 17.
   MOZLEY, C.

Quo warranto, instituted by the Prosecuting Attorney of Buchanan County, at the relation of Roy Gray et al.,- against, respondents, in the circuit court of said county.

The action has for its object the ousting of respondents, viz., George C. Schuster, James M. Allison, Henry C. Ransdell, Earnest T. Smith, O. G. Singleton and J. C. Stark, from the office of school director of Consolidated School District No. 2, of Clinton and Buchanan counties. It is alleged in the petition that respondents are assuming authority to do so, and are acting as Such directors, without authority of law; that the organization of said district was in violation of law and the election of respondents as directors therein was likewise unlawful.

Respondent’s return pleads that the information does not state any facts upon which to base quo warranto proceedings, or in any way sufficient to give the court jurisdiction of the subject-matter or of the respondents. They further answer as follows:

“That on the 16th day of February, 3917, more than twenty-five resident citizens and qualified voters of the community of Gower, residents in each Clinton and Buchanan County, presented to Mrs. Anna L. Sims, the duly elected, acting and qualified superintendent of schools of Clinton County, their petition that she form a consolidated school district in said community and of parts of each county, and the said county superintendent did thereafter on the-day of February, 1917, having jurisdiction thereof, visit the said community, investigate the needs of said community and determine the boundary lines for a proposed consolidated school district, locating said boundary lines as would, in her judgment, form the best possible consolidated district, having due regard also to the welfare of the adjoining districts, and having so determined the boundary lines, did on the 27th day of February, 1917, make a plat of said proposed consolidated district, and certified at said time to the county clerk of each Buchanan and Clinton County, and to the county superintendent of schools of Buchanan County, Missouri, certified copies of said plat and petition of twenty-five and more resident citizens and qualified voters of said community, retaining the originals in her office.
“That also at said time said Anna L. Sims, county superintendent as aforesaid, did call a special meeting’ of all the qualified voters of the proposed consolidated school district for the purpose of considering the question of consolidation, said special meeting being called for two o’clock p. m. on the afternoon of Thursday, the 15th day of March, 1917, at the school building of the then Grower School District; that said special meeting was called by posting within said proposed consolidated school district, at public places therein, ten notices, stating in said notices the time, place and purposes of said meeting, viz:
“First, to organize a consolidated school district in this community, with boundaries as laid out on the plats posted.
“Second, to elect six school directors for said consolidated school district, two for three years, two for two years and two for one year, and that said meeting would commence at two o’clock p. m. on the date set, at the place mentioned therein, and the said notices so posted as aforesaid in public places as aforesaid were posted more than fifteen days prior to the date of the said special meeting., and at the time of posting said notices the said county superintendent did also post at five public places in said proposed district five plats, of said proposed district, same also being done more than fifteen days prior to said special meeting, and all of said proceedings being had within thirty days after the filing with said Anna L. Sims, superintendent, as aforesaid, of the petition of twenty-five and more citizens and qualified voters of said community.
“That said Anna’L. Sims, county superintendent, in person attended said special meeting, and at two o’clock p.'m. on said 15th day of March, 1917, at the assemblv room of the Grower district school in Grower, Missouri,, and brought thereto a plat of said proposed district, and at said time called said meeting to order; that there' was assembled there the great majority, if not all,' of the qualified voters resident of said proposed district, including all of the complainants in this proceeding-residents therein, and that said meeting was organized by the election of A. J. St. John as chairman and J. Burch Saunders as secretary, and upon the ballot taken upon the proposition. ‘To organize a consolidated school district in this community, with boundaries as laid out on the plats posted,’ the ballots collected and announced by the tellers selectel for said purpose were: ‘For organization, 108 ballots; against organization, 45 ballots;’ whereupon the chairman announced that said resident citizens and qualified voters had by their majority vote duly created Consolidated School District No. 2 .of Clinton County, Missouri, in accordance with the lines of the plats so posted and proposed.”

Respondents were duly chosen to serve one, two and three years, respectively, as directors. The proceedings of said special meeting were certified to the county clerks of Buchanan and Clinton County, and the superintendent of schools of each county.

That these things were done ’ as pleaded in the answer is not denied, but, as above stated, it is insisted that they were done without authority of law and that the election of respondents as directors of said consolidated school district was in violation of law and their acts as such were void.

Said cause was tried at the May term, 1919, of said court and resulted in a judgment in favor of respondents and the dismissal of relators’ petition. Motion for new trial was filed and overruled, and the cause was duly appealed to this court.

Judge Thomas B. Allen, who tried the case, handed down a written opinion, which is set ‘ forth in the bill of exceptions and as it meets our conclusion as to the just disposition of this case, we take the liberty of setting it out and adopting it as our opinion. It is as follows:

“The Act of March 14, 1913, undertakes to provide for consolidated school districts which are essentially different from any school district previously known in this State. Concerning the act, Judge Woodson, in State ex rel. v. Gordon, 261 Mo. l. c. 649, says:
“ ‘This act is progressive and in keeping with the forward movement of the State and country at large— bringing home'better schools and higher grades of instruction, which the ordinary public schools do not teach, and are incapable of teaching’ on account of the lack of means to construct appropriate buildings and to employ competent teachers. By this scheme of the Legislature, thousands of our children can and will be instructed in the higher branches of education not taught in the ordinary school, who are unable to go to city high schools, colleges and universities away from-home. The design of the Legislature is good and wise, and before the act conferring this beneficence upon the youth of the country should be declared invalid, the reasons therefor should be so clear and unanswerable that no reasonable doubt should exist as to its unconstitutionality. ’
“In the above language we find expressed the estimate of the Supreme Court as to the"new consolidated school ■ districts, and a distinct emphasis that. the appellate courts will, and the lower courts must, resolve all doubts in favor of such districts.
“The first contention arises on the construction of the new act. A guiding’ and certainly correct rule for construction of statutes is set forth in State ex rel. v. Gordon, 261 Mo. l. c. 649, quoting from Bishop on Written Laws, secs. 113a, 86, as follows:
“ ‘The completed doctrine resulting from a bringing together of its parts is, that all laws, written and unwritten, of whatever sorts and at whatever different dates established, are to be construed together, contracting, expanding, limiting and extending one another into one system of jurisprudence as nearly harmonious and rounded as it can be made without violating unyielding written or unwritten terms.’
“We must, therefore, construe this act in harmony with the other written and unwritten laws of this State without violating unyielding provisions of the act itself. The very able counsel' for relator earnestly contended, in effect, that this act must yield to have read into it portions of Section 10837, Revised Statutes 1909. And this must be done, unless the provisions of this act are unyielding; that is, clearly out of harmony and inconsistent with said section of the Revised Statutes.
“Turning to the act we find that Section 1 begins with the provision that ‘the qualified voters of any community in Missouri may organize a consolidated school district for the purpose of maintaining both elementary schools and high schools as hereinafter provided.’ The Supreme Court, in State ex inf. v. Jones, 266 Mo. l. c. 196, defines the word ‘community’ as used in this act, to be neighborhood, vicinity, or people who reside in a locality in more or less proximity.
“Section 2 provides that ‘no consolidated district shall be formed under the provisions of this act unless it contains an area of at least twelve square miles or has an enumeration of at least two hundred children of school age.’
“Section 3 provides, after detailing the necessary steps for organization of the consolidated district, that: ‘.The proceedings of this meeting shall be certified by the chairman and secretary to the county clerk or clerks and also ,to the county superintendent or superintendents of schools of all of the counties affected. If the proposed consolidated district includes territory lying in two or more counties, the petition herein provided for shall be filed with the county superintendent of that county in which the majority of the petitioners reside. The county superintendent shall' proceed as above set forth and in addition shall file a copy of the petition and of the plat, with the county clerk of each county from which territory.is proposed to he taken.’
“Section 5 provides that ‘the inhabitants of the remaining parts of the districts may also annex themselves to any other adjoining district or districts by filing a petition asking to be so annexed.’
“Looking at this act, and especially the above provisions, which are all the provisions bearing on the quantum of a consolidated district, can the following cinelusions be fairly avoided, to-wit:
“First. The boundaries of a consolidated district are independent of and have no reference to the boundaries of school districts. The consolidated districts are carved out by the rule of community of proper area or school enumeration alone, without reference to school districts or county boundaries.
“Second. The method of fixing the boundaries of a consolidated district in the act is exclusive ° of any general provisions of the Revised Statutes for organizing school districts. This proposition strikes at the core of relator’s contention. Relator’s counsel very correctly state in their brief that ‘each and every provision of said school law not clearly inconsistent with the terms of said act is still in full force and effect and must be given consideration when we come to construe the Act of 1913.’ The test of the effect of a provision of a general statute on the present act is‘inconsistency. If consistent, it must be given effect. If inconsistent, then it cannot be given any consideration. Let us therefore fairly apply this ‘acid test.’
“Counsel, in their brief, state the proposition in this way: ‘On examination of the statutes there are two sections that bear directly upon the organization of consolidated school districts' under such conditions, namely, Sections 10837 and 10842.’ To what kind of consolidated districts do these sections apply? Obviously to the kind expressly authorized in said sections, which are organized by an entirely different method from the method set out in the Act of 1913.
“That the consolidated district organized under Section 10837 is an entirely different scheme from the consolidated districts authorized under the Act of 1913 will be manifested by an examination of said Section 10837 and the new act. Instance the proviso of Section 10837, following specific provisions for the formation of new districts under that section, ‘that no new district [that is, no new district organized under the provisions of that section] shall be created or boundary line changed by which any district shall be formed containing within its limits by actual count less than twenty persons of school age, or by which any district shall be left containing within its limits by actual count less than twenty persons of school age.’ This provision clearly limits the creation of the new districts formed under said Section 10837 by .providing that the new district shall contain not less than twenty pupils and no remaining part of any district shall be left with less than twenty children. Comparing this provision with the provision of the Act of 1913, we find that Section 2 of the act provides ' that the consolidated district shall contain not less than two hundred children or an area of not less than twelve square miles; and Section 5 contemplates that the remaining parts of districts may have less than twenty pupils, as shown by the following considerations:
“First. The consolidated district is measured by the rule of community of proper area or school enumeration.
“Second. The act does not mention any number of children that may be in the remaining parts of districts.
“Third. The act recognizes that the remaining parts of districts will or may be insufficient to sustain a school and provides for such remaining parts to become annexed to other districts.
“Fourth. Section 10837 provides for the forming of a consolidated district provided there be enough left in the remaining parts of district to constitute under the law independent school districts, to-wit, districts containing not less than twenty children.
“If the consolidated district under the Act of 1913 is to be measured by the rule of community of proper area or enumeration, to undertake to read into that act that no part of a district may be taken unless twenty children remain in the remaining part of the -district would impose a restriction on the act, and render meaningless the provisions of the act as to annexing excluded parts of districts to other districts. For why provide for annexing, to another district when such excluded part is sufficient under the law to constitute a district in itself? As such district, it could without this provision consolidate with another district. If twenty children had to be left in the excluded parts, then it might and would often happen that when adjacent districts only had 20, 30, 40, or 50 children, a consolidated district could not be created at all without including all the districts, and such ‘community’ would be deprived of the benefits of the new act. Again such organization comprising all of school districts is already authorized by law, and no act was necessary for such authority. Concede that the boundaries in the present case constituted a ‘community’ of proper area and enumeration within the meaning of the act, then the act by its terms authorizes such ‘community’ to become incorporated. If -we should hold that the community in this case, by reason of having failed to leave twenty children in an excluded part of a district, could not incorporate, would not such a holding go into the teeth of the act? For how can you say a ‘community’ may incorporate and then say that by virtue of a prior provision it cannot incorporate? It seems clear that the provisions of Section 10837 are not in harmony and are inconsistent with the act. It is not necessary that the act should repeal Section 10837, for that section still remains the law as a part of Article 3, Chap. 106, Revised Statutes 1909, but it simply does not apply to the consolidated district as organized under the Act of 1913.
“Contention of counsel for relator that the act does not provide for the organization of consolidated school districts embracing lands in two or more counties, is not only answered by provisions of the act, but by the decision of the Supreme Court in the Wright Case, 270 Mo. 376, which sustained a consolidated district embracing land in Cass.and Bates counties.
“The exact point is that the County School Superintendent of Clinton County did not do her duty under the law, in this: 'That she did not attempt to comply with even a semblance’ of the requirements of the act that she have due regard for the welfare of the adjoining’ districts in laying out the boundary of the consolidated district. It seems true that the superintendent made but a short and hurried trip over the Buchanan County-territory and the evidence indicates that she might have and perhaps should have taken more pains in discharging this important and responsible duty. It would further appear from the- evidence that the boundary of the consolidated district could have been fixed so as to have greatly diminished the bad effect upon remaining portions of the districts affected, and in my opinion the establishment of the boundaries of this consolidated district actually worked a hardship upon the remaining parts of the school districts. But what is this court to do? Can this court grant relief in this case because of the unwise action of the county superintendent in the matter just mentioned? If it were in the power of this court to review the acts of the county superintendent and determine whether the boundaries of the consolidated districts were established with due regard to the welfare of adjoining districts, of course, this court would not hesitate to do so. But this court is bound hand-and-foot to follow the law as declared by the Supreme Court, and failure to do so would stultify the court and make it unworthy the confidence and respect of good men.
“The Supreme Court in the ease of State ex rel. v. Glaves, 268 Mo. l. c. 104 and 105, has spoken, in no uncertain language on this point, as follows:
“ ‘In forming the'new district, common school districts were divided. It is insisted that the welfare of the excluded parts of such districts was not given due consideration. The statute does not make this a judicial question, hut invokes for its settlement the discretion of the superintendent, in the first place, and then submits it, with the rest, to the voters at the election required to be held. ’
“The acts of the superintendent were not set out in that ease, and, as far as we know, the county superintendent may have utterly failed to have exercised a proper, or any, regard for the welfare of adjoining districts. If this matter is not a judicial question, how is this court to make it a judicial question?
“Again the Supreme Court in State ex rel. v. Wright, 270 Mo. l c. 387, uses this language-:
“ ‘Coming to the contention that the county superintendent did not sufficiently examine into the effects of the proposed consolidated district upon certain adjoining common school districts in Bates County: The statute which we quote above is, we repeat, regrettably meager in its details; it relegates the matter of fixing the boundaries of the district, that is, the creation of the district itself, to the judgment of the comity superintendent; it lays down no hard-and-fast rules, not any certain method for him to follow, but within the limits of so locating “the boundary lines as will in his judgment form the best possible consolidated district,” in the light of a “due regard for the welfare of adjoining, districts,” leaves both the measure of judgment and the quantum of due regard to the welfare of adjoining districts to the sound official discretion of the county superintendent. The question of the correctness of the judgment exercised and the regard by him had to the welfare of adjoining districts is required (as the sole way of correcting his exercise of bad judgment and diseretion) to be passed on by tbe voters at a special election held for this purpose. In this case the voters approved the district and its boundaries as an exercise both of good judgment and due regard.’
“The court further says, in the same case and immediately following the above quotation:
“ ‘In addition, there was substantial testimony, which we set out in our statement of facts, that the superintendent made efforts to obtain facts' on which, caeteris paribus, he might have been able to exercise the required statutory quantity of judgment and due regard. The learned trial court found from the facts shown that he did all that the statute required him to do. No instructions were asked or given; this is not an equity suit (State ex rel. v. People’s Ice Co., 246 Mo. 168), so we are in this-condition of the record bound by the holding of the court nisi
“Counsel for relator insists that the last quotation above recognizes the right and duty of the trial court to review the action of the county superintendent. It must be conceded that if all the Supreme Court had said on this subject had been contained in the last quotation, then indeed this court would be fully warranted in reviewing the action of the county superintendent, but when we take into account what the Supreme Court said in the Glaves case, above quoted, together with the fact that the court repeated substantially the same ruling in the Wright case, above quoted, to maintain that the Supreme- Court meant to hold that it was the duty of the trial court to review the action of the county superintendent would clearly put the Supreme Court in the attitude of making contradictory decisions. It is noticed that the court in the Wright case, in referring to the fact that the trial court had reviewed the action of the county superintendent and that there was a substantial testimony to sustain the finding of the trial court, introduced that part of its opinion with the words ‘in addition.’ Is it not clear that in the Wright case the court intended to and did adhere to the ruling in the Glavés case, namely, that the action of the county superintendent was not subject to judicial review, but simply said that, in addition to that principle and as another reason, there was substantial evidence to find that the county superintendent had due regard to the adjoining district? It is inconceivable that the Supreme Court meant to hold, especially in the same identical case and upon the same page, that this question was not subject to judicial review and that it was subject to judicial review. Such a construction wouid be ridiculous and absurd.
“In other words, there were two reasons in that case why the decision should go against .relator on that point. First, that the matter was not subject to judicial review, and, second, that there was substantial testimony to the effect that the county superintendent had done his duty. Evidently either reason must have been sufficient upon which to base the court’s ruling in that case.
“Suppose the testimony in the Wright case had not contained substantial testimony to sustain the action of the county superintendent, then there would have been left but one reason, namely, that that matter was not reviewable by the court. Gould anyone imagine in the Wright case that if there had been a question about the action of the county superintendent the Supreme Court would not have declared the law on the question of judicial review the same as it did in that case and in the Glaves case? One good reason for the ruling was sufficient, and of course two reasons or a dozen reasons could not have changed the result of the effect of the one good reason.”

The motion for new trial was properly overruled.

It only remains to affirm the judgment, which is accordingly done. It is so ordered.

Railey and White, CC., concur.

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

All of the judges concur.


text:
    WILLIAM T. TODD, Appellant, v. CONNOR INVESTMENT COMPANY et al.
    Division Two,
    December 15, 1920.
    1. VESTED ESTATE. The law favors the vesting of an estate as soon as the instrument under consideration will permit.
    2. -: Dry Trust: Equitable Remainder: Children Then Living. The owner of land in 1860 conveyed it to a trustee for the sole use of his daughter Sarah “for and during her natural life and upon the death of the said Sarah the said land shall descend to and vest in tlie children of said Sarah then living, when this trust shall cease, and the said children then living shall take the land absolutely in fee simply in equal parts.” When the deed was > made Sarah had four children, one of whom, a daughter, married, and after the birth of plaintiff, died in 1873. The other three survived Sarah, who died in 1913. Held, first, that the legal title vested in the trustee at the date the deed was executed, under a dry trust; second, that each of the four children living on said date became vested, as equitable remaindermen, with an undivided one-fourth interest in the land, subject to the condition subsequent that he or she might die before the death of Sarah, the life tenant; third, the interest of plaintiffs mother terminated upon her death in 1873, and the three surviving children, upon Sarah’s death in 1913, took the entire estate; fourth, the equitable remainder lodged in plaintiffs mother, with the condition subsequent attached that she should survive the life tenant, terminated at her death, and passed to the three children- of the life tenant who survived her; and, fifth, the plain words of the deed that, upon the death of the life tenant the title should vest in her “children then living,” excludes her grand-child, the plaintiff.
    Appeal from Jasper Circuit Court.—Hon. J. D. Perkins, Judge.
    Affirmed.

      John Cosgrove, J. E. and W. E. Bailey, and O. S. Burton for appellant.
    (1) The law favors vested estates and wlien tliere is a doubt whether the estate is vested or contingent the doubt will be resolved in favor of tbe vested estate. Chew. v. Keller, 100 Mo. 362. (2) The word “children” should be construed to mean the children of Sarah living at the date of the execution of the deed. Roberta was about five years of age at the time the deed from her grandfather was delivered to the trustee. The children of Sarah were named as grantees, although their given names were not mentioned. The presumption is that their grandfather entertained the same love and affection for them that he did for their mother, and while ihe naked legal title was in the trustee his was a mere naked trust, and the children of Sarah were entitled to the fee, subject to their mother’s life estate, and possession at her death, but the interest vested in 'them at the delivery of the deed, although the children were only referred to as a class. Barkhoefer v. Barkhoefer, 204 S. W. 909; Waddell v. Waddell, 99 Mo. 345; Heady v. Hollman, 251 Mo. 640; Eckle v. Ryland, 256 Mo. 439; Gillilan v. Gillilan, 212 S. W. 348; Elsea v. Smith, 202 S. W. 1075. (3) The estate created by the deed, the title to which was placed in a trustee for the benefit of Sarah and her children, vested in the children of Sarah- a fee in remainder. This being true, the remainder cannot be limited thereon; because “the latter must have a particular estate to support it. Any other limitation, whether it be in the nature of an executory interest or defeasance, being inconsistent with the complete sovereignty of the owner oE the fe,e over the land and his consequent unlimited right of alienation, cannot be attached to the estate, and if attempted to be created will be void.” Elsea v. Smith, 202 S. W. 1075.

      Howard Gray, Norman A. Cox and Hugh Dabbs for respondents.
    ' (1) The word, “children” in this instrument, is used in its primary sense, meaning direct descendants of the first degree of Sarah. Where, as in this case, there is nothing in the language employed to show an intent oil the part of the grantor to include “grandchildren” in the word “children,” the grant will be limited to the direct descendants of the first degree of the ancestor named (Sarah) and will not include her grandchildren. Ring.quist v. Young, 112 Mo. 31, 34; Warne v. Sorge, 258 Mo. 168; DeLassus v. Gatewood, 71 Mo. 371; 7 Cyc. 124-126; 11 Corpus Juris, p. 753, note 5; 1 Perry on Trusts (6 Ed.) sec. 254; 1 Bouvier’s Law Die., (3 Rev.) 479; 2 Words & Phrases, (1 Ed.) 1128,. col. 1. (2) The intent of the grantor to exclude the grandchildren of Sarah, and to exclude the children of Sarah who did not survive her, by the use of the words “children of Sarah L. Hanson then living,” is shown from the further language employed: “Said children of Sarah L. Hanson then living shall take in equal parts, share and share alike.” That is, that they shall be living at her death, and that such as are living, shall take per capita, as direct descendants of the first degree take, and not per stripes, as grandchildren take. (3) The instrument, itself, in unequivocal language, provides when the remainder shall vest in the children of Sarah and bn what event. It points out a class to take the remainder, but makes the particular members of the class uncertain until the happening of a certain event (the death of Sarah) and dependent on the contingency. It is clear that the interest conveyed by the grant to the children of Sarah then living at the time of her death is a contingent remainder, and does not presently vest, but vests only at some future time and then only on the happening or non happening of a contingency of survivorship. DeLassus ,v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; 8 Words & Phrases (1 Ser.), pp. 694-5; 3 Bouvier’s Diet, p. 3268; Note to 25 L. R. A. (N. S.) 888; Sullivan v. Garesche, 229 Mo. 505; Tevis v. Tevis, 259 Mo. 40; Buxton v. Kroeger, 219 Mo. 240. (4) A contingent remainder is not a descendible interest, and the heirs of the contingent remainderman take nothing from such interest unless, through the happening of the contingency as provided, the interest becomes a vested one in the time provided. Here, the mother of plaintiff, who was a contingent remainderman, died before the contingency happened, and her contingent interest passed, under the terms of the grant, to the children (direct descendants of the first degree) of Sarah who survived Sarah. Sullivan v. -Garesche, 229 Mo. 508; DeLassus v. Gatewood, 71 Mo. 381; Ringquist v. .Young, 112 Mo. 25; Tevis v. Tevis, 259 Mo. 40. (5) Although the law in this State favors vested remainders, nevertheless contingent ■ remainders are recognized, and where, under the language creating the interest, the remainder depends on a contingency such as survivorship after the death of the life tenant) as here, the decisions of this and other appellate courts are that the remainder will be held a contingent one, and will not vest until the happening of the contingency on which it depends. Moreover, this State recognizes the right of- the owner of property, in making a g’rant or devise, to create a contingent remainder, and where, as here, the intent to do so is apparent, the remainder will be held to be a contingent one, to vest only in the future and on the happenings of the event stipulated in the grant. Buxton v. Kroeger, 219 Mo. 242; Tevis v. Tevis, 259 Mo. 36; DeLassus v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; LaVaulx v. McDonald, 190 S. W. Mo. 607. The word “ then,” used in the connection, ‘ ‘ upon the death of Sarah L. Hanson, said land shall then vest in . . . the children of Sarah L. Hanson then living . . . and the then living children shall take, ’ ’ is an adverb of time, pointing out when the remainder shall vest, and on what event. Rinsquist v. Young, 112 Mo. 31, 34; DeLassus v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; McNutt v. Ins. Co., 181 Mo. 94.
   RAILEY, C.

This suit was brought in the Circuit Court of Jasper County, Missouri. On February 26, 1918, it was tried before the court, without a jury, under plaintiff’s first amended petition. The latter contains two counts. The first alleges that the Connor Investment Company is a Missouri corporation,"' doing business in Jasper County, Missouri; that Florence Phelps Rothert, whose maiden name was Florence Phelps, is the wife of Wm. H. Rothert; that George Emmett Phelps is a minor, and that Bridget O’Leary Phelps is his legally appointed guardian; that plaintiff is the owner and claims the fee simple title to the undivided one-fourth interest in Lot 2, of the northwest fractional quarter of Section 7, Township 27, Range 33, containing 49.90 acres of land, located in Jasper County, Missouri, except a lot reserved out of the above described land, measuring 13 rods east and west and 18 rods north and south; that defendants are claiming some title, estate or interest in said property, adversely to the estate and title of the plaintiff. Said count concludes by asking the court to ascertain and determine the title of the parties herein to said undivided one-fourth interest, etc. The second count is similar to the first down to and including the description of said undivided one-fourth interest claimed by plaintiff. The petition then alleges that lying underneath the surface of said land there was a rich and valuable deposit of both zinc and ore; that for some years past said defendants, without the knowledge of plaintiff, have been wrongfully mining said land, taking said ore therefrom, and disposing of the same; that said ore so taken was of great value; that plaintiff was legally entitled to one-fourth interest in said ore, and that he has not sufficient knowledge of the amount and value of the ore so removed by defedants as to state the actual value thereof. This count concludes by asking the court to order and adjudge an accounting between the plaintiff and defendants; that the latter be required to account for, and pay over to plaintiff, all the amount due him for his interest in said ore, and for such other oi’ders and judgments, touching the premises, as the court may deem just and equitable.

Defendant John H. Carroll, through his attorneys, Norman A. Cox and Hugh Dabbs, entered his voluntary appearance in this cause, and for his separate answer to both counts, alleged that he is the owner-of an undivided one-fourth interest in fee simple of the land described in the petition. The answer likewise contained a general denial. The court was asked to ascertain and determine the respective interests of said defendants, and to decree That plaitniff has no interest in said real estate.

The Connor Investment Company answered through the above attorneys, claiming to be the owner of' the undivided one-half interest in fee simple of the land described in the petition. The answer in other respects was similar to that filed by John H. Carroll, and concludes with a prayer for general relief.

Defendants B. 0. Phelps, in her own right, and as curator of the estate of George Emmett Phelps, acting through attorneys McReynolds & McReynolds, filed a separate answer, alleging that she and her said ward each own an undivided one-sixteenth interest, in fee simple, in the land aforesaid. The answer in other respects is similar to that filed by John H. Carroll, supra.

Defendants ¥m. Howe Phelps and Florence Phelps Rothert answered separately, through their attorneys, Gray & Gray, in which they deny that plaintiff has any interest in the real estate described in the petition, and aver that it belongs to defendants.

There was a reply, in the nature of a general denial, of the new matter pleaded in said answers.

There is no controversy over the material facts in the case. On December 22, 1860, Peter Pierce, of Cooper County, Missouri, was the owner in fee of all the land described in the petition and on the above date, executed and delivered the following deed (omitting acknowledgment):

“This indenture of three parts made this the 22nd day of December, 1860, between Peter Pierce of the first part and ¥m. H. Trigg, of the second part, and Sarah L. Hanson, the wife of Samuel Hanson, and the children of the said Sarah L. and Samuel Hanson, of the third part; witnesseth, that the said Peter Pierce, for and in consideration of the natural love and affection he feels for his 'daughter, the said Sarah L. Hanson, and her children, and in further consideration of the sum of $5, to him paid by the said "William H. Trigg, the receipt of which is hereby acknowledged, doth, by these presents, grant, bargain, sell and convey unto the said Wm. H. Trigg and to his heirs forever, all the following described land situate in Jasper County, in the State of Missouri, to-wit: The southeast one-fotirth of the northeast quarter of Section 12, in Township 27, of Range 34, containing forty acres more or less; also Lot No. 2 of the northwest fractional quarter of Section 7 in Township 27 of Range 33, containing 49 acres and 90-100 of an acre, except a lot reserved out of the above described land measuring 1.3 rods east and west and 18 rods north and south for a school house; the land hereby conveyed being the same conveyed by Moses Smith to the said Peter Pierce by deed dated April 23, 1859.
“To have and to hold the same and the appurtenances unto the said W. H. Trigg and to his heirs and assigns forever. And the said William H. Trigg in consideration of -the premises and of the sum of $5 to him paid by the said Sarah L. Hanson and her children, the receipt of which is hereby acknowledged, doth hereby declare and make known that he does and he and his heirs shall and will hold the said land and the rents, issues and profits thereof to and for the sole and separate use and benefit of the said Sarah L. Hanson for and during her natural life and to permit her to use and occupy the same and take the rents, issues and profits thereof to her own separate "use and benefit, free and exempt from the control, debts and liabilities of any husband of the said Sarah L. Hanson, And upon this further trust, that upon the death of the said Sarah L. Hanson, then the said land shall descend to and invest in fee simple in the children of the said Sarah L. Ha/n-son then living, ivhen this trust shall cease and be determined, and the said children then living shall take the said land absolutely in fee simple in equal paHs, share and share alike, discharged of the trust hereby created.
“In witness whereof, the said parties of the first and second part have hereunto set their hands and seals, this the day and year first herein written.
“Petek Piekoe (Seal).”

. At the time of the execution and delivery of the above deed, the life tenant, Sarah L. Hanson, had four children living; namely; Elizabeth May Todd, sometimes called Lizzie Todd; Joseph C. Hanson; Richard P. Hanson; and Roberta L. Todd, the mother of plaintiff and appellant in this cause.

Roberta L. Todd was born August 4, 1854. She married Strother H. Todd on December 8, 1873, and died on February 23, 1875 a few days after the birth of plaintiff. The latter is the only child of said Roberta L. Todd.

The life tenant, Sarah L. Hanson, died December 23, 1913. She left surviving her Elizabeth May Todd, a daughter; Joseph 0. Hanson, a son; and Richard P. Hanson, a son.

It is admitted that neither the plaintiff in this suit, nor his mother, Roberta L. Todd, ever made any conveyance of said land to defendants, or those under whom they claim.

Peter Pierce and ¥m. H. Trigg are both dead. Samuel Hanson, the husband of the life tenant, Sarah L. Hanson, died in 1864. After the death of plaintiff’s mother, Sarah L. Hanson, and the three children who survived her, conveyed all their interest in, and purported to convey the full title, to, the land described in the petition, to the grantors of defendants; and it is admitted that, “through successive conveyances properly executed and recorded, all of the right, title and interest of the said surviving children of the said Sarah L. Planson, has been conveyed to defendants, Connor Investment Company, John IT. Carroll, and the heirs of William H. Phelps, deceased, in the following parts: Connor Investment Company, one-half; John H. Carroll, one-fourth; and the heirs of William H. Phelps, deceased, one-fourth; and that said defendants are the owners in fee simple title of all the right, title and interest of the said surviving children of the said Sarah L. Hanson.” It is further admitted that since the date of said deed from the surviving children of said Sar,ah L. Hanson, to-wit, September 16, 1876, up to and including the date of the bringing of this suit in 1917, the s.aid defendants, and those under whom they claim, have been in exclusive possession of said land, claiming to own the same and paying all the taxes thereon.

The trial resulted in a judgment for defendants. Plaintiff, in due time, filed his motion for a new trial, which was overruled and the cause duly appealed by him to this court.-

I. The facts herein are fully set out, and are undisputed. The deed in controversy is likewise set out in full, with the acknowledgment omitted. The rights of the parties to this litigation must be determined from a consideration of the deed aforesaid, in connection with the facts.

It may be said in passing, that the law favors the vesting of an estate as soon as the terms of the instrument under consideration will permit. [Collins v. Whitman, 222 S. W. (Mo.) l. c. 842; Dunbar v. Sims, 222 S. W. (Mo.) l. c. 839-40; Huntington Real Estate Co. v. Megaree, 280 Mo. 41; Henderson v. Calhoun, 183 S. W, (Mo.) l. c. 586; Deacon v. Trust Co., 271 Mo. l. c. 687-8; Heady v. Hollman, 251 Mo. l. c. 638; Chew v. Keller, 100 Mo. l. c. 368; Jones v. Waters, 17 Mo. l. c. 589-90.]

II. The above deed was executed and delivered on December 22, 1860. On said date, Sarah L. Hanson and Samuel Hanson, her husband, had four living children, all of whom survived the life tenant, Sarah L. Hanson, except plaintiff’s mother, who died in 1875, a few days after the birth of plaintiff. The life tenant died on December 23, 1913. No other children of Sarah L. Hanson were living at the date of her death, except the three above mentioned. Keeping in mind the principles of law enunciated in the preceding paragraph, we are of the opinion, that at the date of the execution and delivery of said deed, the trustee, Wm. TI. Trigg, took the legal title to said property, under a dry trust; that Sarah L. Hanson became, at said date, the equitable owner of a life estate in said land; that each of the four children living at said date, became vested, as equitable remaindermen, with the undivided one-fourth interest in said land, subject to the condition subsequent that he or she might die before the death of the life tenant, as contemplated in the italicised portion of the deed aforesaid. Hence, the interest of plaintiff’s mother, terminated at her death, and the three children living, when the life tenant died, took the entire estate by the provisions of said deed. [Collins v. Whitman, 222 S. W. (Mo.) l. c. 843-4; Fields v. Jacobi, 181 S. W. l. c. 66; Sullivan v. Garesche, 229 Mo. l. c. 507; Hoselton v. Hoselton, 166 Mo. l. c. 188; 23 R. C. L. p. 518, sec. 56; 2 Underhill on Wills, sec. 874, p. 1330; Tiedeman on Rea lProperty (3 Ed.) sec. 301, p. 455; Bigley v. Watson, 98 Tenn. l. c. 360, 39 S. W. 525; Gilpin v. Williams, 25 Ohio St. l. c. 295-6; Harrison v. Weatherby, 180 Ill. l. c. 441, 54 N. E. 237; Bell’s Estate, 147 Pa. 389, 23 Atl. 577; In re Kenyon, 17 R. I. 149, 20 Atl. 294; Rand v. Butler, 48 Conn. 293; Gilman v. Stone, 123 Ky. l. c. 140-1, 94 S. W. 28; Stokes v. Van Wyck, 83 Va. l. c. 732, 3 S. E. 387; Loring v. Eliot, 82 Mass. 568, 574.]

It follows, from what has been previously said, that the equitable remainder, lodged in plaintiff’s mother, with the condition subsequent attached as aforesaid, terminated at her' death, and passed, by the terms of the deed, to the three remaining children, subject to the same condition provided in said instrument. We accordingly hold, that the trial court reached a correct conclusion, in finding that plaintiff has no right, title or interest in the land described in petition.

III. It is claimed by appellant that the trust declared in the deed in favor of the children living at the time of the life tenant’s death should be construed to include plaintiff, as the grandchild of Sarah L. Hanson, and the only child of his mother. The trust referred to in said deed, provides that “upon the death of the said Sarah L. Hanson, then the said land shall descend to and invest in fee simple in the children of the said Sarah L. Hanson then living, when this trust shall cease and be determined, and the said children then living shall take the said land absolutely in fee simple in equal parts, share and share alike, discharged of the trust hereby created.” The property conveyed belonged to Peter Pierce. He had the legal right to convey it, as was done, by the deed in controversy. The instrument is couched in plain, simple language, and is easily understood. The words used, in declaring the above trust, clearly designate the children of Sarah L. Hanson living at the time of her death as the objects of his bounty, who should then-become the owners in fee of said land. There could be no mistake as to who was to take the title at the death of the life tenant, for in two places he designates the children then living, as the individuals who should be vested with the title to said land. The conclusions heretofore reached, in respect to the subject-matter of this litigation, are in harmony with the plain provisions of^the foregoing deed.

The decree of the circuit court in favor of respondents, meets with our approval, and is accordingly affirmed.

Mozley, C., concurs; White, C., concurs except as to Paragraph. II.

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

All of the judges concur.