author: ROY, C. Marshall, J., PER CURIAM.

text:
    W. K. GIBSON v. ALLEN B. GIBSON et al., Appellants.
    Division Two,
    February 6, 1912.

    WILL: Construction: Intention of Testator: Life Estate with Power of Disposal: Trust. John B. Gibson’s will read: “X will and bequeath to my wife 'Sarah Jane Gibson all of my property, real, personal and mixed . . . with the power to sell, control, manage and dispose of in the same way that I might do if living; but it is my wish and desire, and I so will that at her death, by will, or before if she so elect, that she shall divide among or settle upon my children and my grandchild the said property devised and bequeathed to her, and increase or proceeds of the same, in the following manner,” particularizing the division. Held, that the widow took a life estate by clear implication, with full power of disposal for value. She has no power to give away any part of the property, except that she may during her life,, if she chooses, divide the whole of the property among the children and grandchild as provided in the will. None of the legacies or bequests given to the children or grandchild áre payable until after the widow’s death, unless she chooses to divide the whole estate before her death. She has the right to consume such parts of the principal as may be reasonably necessary for her support in accordance with her station in life. The language of the will is such as to create a trust for the remaindermen which the statute executes in them, and of which they are now seized to take effect in possession on the death of the mother. This is not holding that what would otherwise be a fee in the first taker can be cut down to a less estate by ambiguous words, or words not as clear and strong as those in the devise to the first taker. [Overruling Papin v. Piednoir, 205 Mo. .521, and Jackson v. Littell, 213 Mo. 589.]
    Appeal from Christian Circuit Court. — Now. John T. Moore, Judge.
    Reversed and remanded (with directions).

      S. E. Bronson and Hamlin <£ Seawell for appellants.
    Tlie following clause of the will, to-wit, “I will and bequeath to my wife Sarah Jane Gibson all of my property, real, personal and mixed wherever the same may be situated, with the power to sell, control, manage and dispose of in the same way that I might do if living,” vests in the said Sarah Jane Gibson the absolute power of disposition. That being true, at the death of the testator she became the owner in fee simple of the property. Cornwell v. Wulff, 148 Mo. 542. “It has always been held by this court that the devise of real estate, with the power of disposition over it, carries the fee.” Papin v. Piednoir, 205 Mo. 531; Roth v. Rauschenbusch, 173 Mo. 582; Jackson v. Lit-tell, 213 Mo. 589.

      G. A. Watson, J. J. Gideon and J. G. West for respondent.
    There is, by the express terms and manifest meaning of the whole context of the will, no absolute power of disposition of the estate of the testator given to his wife. From the clause, “but it is my wish and desire, and I so will that at her death, by will, or before if she so elect, that she shall divide among or settle upon my children and my grandchild the said property devised to her, and the increase or proceeds of same in the following manner, . . .” it is expressly clear that the testator gave no absolute power of disposition of such estate to his wife, and that the wife of testator obtained only a life estate, with direction to divide the proceeds of the increase and the increase in all the property of the testator, among his devisees and legatees named. Armor v. Frey, 226 Mo. 646; Grace v. Perry, 197 Mo. 550; Cornwell v. Or-ton, 126'Mo. 355; Schorr v. Carter, 120 Mo. 409; Lewis v. Pitman, 101 Mo. 281; Munroe v. Collins, 95 Mo. 33; ITarbison v. James, 90 Mo. 411. The case of Cornwell v. Wulff, 148 Mo. 542, is not authority in support of appellants in the case at bar, for the reason that said case pertained to the construction of a deed, and the court said:' “There are no words in this cleed which expressly limit Mrs. Cornwell’s use to her life only, nor are there any words which indicate an intention to so limit her use in said lands.” And, further, because the same court said, in the paragraph just preceding the foregoing language: “As pointed out in Cornwell v. Orton, page 335> that the rule has been modified, particularly in the construction of wills, in this State, by subsequent decisions to this extent only, that it is no longer necessary that the life interest should be created by the express words, but if it is the clear intention from the whole will that the first taker is .to have a life estate, the added power of disposition will not convert it into an absolute ownership. ’ ’

   ROY, C.

— This case is here on appeal from the decree of-the circuit court of Christian county construing a will.

The petition is as follows:

“Plaintiff states that he is the son of John A. Gibson, deceased, and that all the defendants, except Bessie Ann Gibson and Sarah J. Gibson, are children of thé said John A. Gibson. That Bessie Ann Gibson is a grandchild, and Sarah J. Gibson is the widow of the said John A. Gibson, deceased.
“That on February 5, 1900-, the said John A. Gibson made and published his last will and testament, and thereafter on the 16th day of April, 1903, that said John A. Gibson departed this life; that said will was admitted to probate in the probate court of Christian county, Missouri, and is now of record in said probate court; that said will contains the following clause:
“ ‘I will and bequeath to my wife Sarah Jane Gibson all of my property, real, personal and mixed, wheresoever the same may be situated, with the power to sell, control, manage and dispose of in the same way that I might do if living; but it is my wish and desire, and I so will that at her death, by will, or before if she so elect, that she shall divide among or settle upon my children and my grandchild the said property devised and bequeathed to her, and increase or proceeds of the same, in the following manner: T have heretofore given and advanced to my sons L. P. Gibson and O. P. Gibson their share of my estate and it is my will and desire that she shall give or will to them only the additional sum of five dollars each, that is to say to the said C. P. Gibson and L. P. Gibson the sum of five dollars each; to the said Bessie Ann Gibson, the grandchild above mentioned, the sum of four hundred dollars. To my daughter Mattie Gibson the sum of five hundred dollars, and that she shall so divide the balance of my estate real and personal, after paying said special bequests, between my children Mary Carter, W. K. Gibson, Allen B. Gibson, Mattie Gibson and Ella Shannahan, in equal portions share and share alike.’
“The plaintiff, W. K. Gibson, and defendant Allen Gibson were named in said will as executors, and they qualified as such and have proceeded to discharge their duties as such; that plaintiff, both as a devisee under said will and executor prays the court to construe said will and determine for the instruction of plaintiff, in his said office, the following questions:
“First. Whether by the terms of said will the executors have power to sell or dispose of any real estate belonging to the estate of the late John A. Gibson, there being no debts.
“Second. Whether Sarah Jane Gibson has power under said will to sell or dispose of any real estate belonging to said estate for the purpose of paying the special legacies mentioned in said will.
“Third. Whether Sarah Jane Gibson has power under said will to sell or dispose of any of the real estate belonging to said estate for any purpose.
“Fourth. Whether said will imposes the obligation on said Sarah Jane Gibson during her life, to pay the said special legacies and to divide in kind by will or deed the real estate belonging to said estate among and between Mary Carter, W. K. Gibson, Allen B. Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike.
“Plaintiff states that Bessie Ann Gibson is a minor under the age of eighteen years and unmarried, and that C. P. Gibson is a non-resident of the State of Missouri.”

And on the 7th day of September, 1907, the same being one of the regular judicial days of the August, 1907, term of court, the said court rendered the following judgment, to-wit (omitting unnecessary portions of said judgment):

"The testator intended to devise and did devise to Sarah Jane Gibson, his widow, only a life estate in all his property, real, personal and mixed; that by said item he gave her the power to dispose of the real estate in the manner and form specified by said item; that is, by will or deed, before death the widow shall provide for and pay the legatees therein mentioned their legacies, and by will or deed, before her death she may, for the purposes of partition dispose of the remainder of the estate of John A. Gibson, deceased, and devised to the following named devisees, in the following manner: To Mary Carter, W. K. Gibson, Allen Gibson, Mattie Gibson and Ella Shannahan, in equal portions, share and share alike; and in the event of failing in such disposition of the property devised, the said property descends at her death to the devisees named in the will, to-wit, Mary Carter, W. K. Gibson, Allen Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike, subject to the payment of the special legacies, if they be not paid, and the court further finds and adjudges that if there be not sufficient personal estate left at the death of said widow to pay the special bequests and legacies and no disposition of such property be made by will as is provided then, the executors may, under the provisions of such will, sell and convey the real estate for the purpose of paying such special bequests and legacies and for the purpose of partition among the heirs above named, to-wit, Mary Carter, ~W. K. Gibson, Allen Gibson, Mattie Gibson, and Ella Shannahan, in equal portions share and share alike.”

The defendants have appealed.

The appellants insist that the will gives to Sarah J. Gibson a fee simple estate, and that the limitation over to tlxe children and grandchild of the testator is void.

In law, as in many other respects, England has cast to the westward “her seed and her shadow,” and nowhere has that shadow had a more blinding effect than in the consideration of the question here involved. Nearly nine year before the common law crossed the Mississippi, our Territorial Legislature by the Act of July 4, 1807 (1 Ter. Laws, 125), made general provisions as to “Wills, descent and distribution.” Section 18 of that act provided that “every person aged twenty-one years . . . shall have power at his will and pleasure, by last will and testament in writing, to devise all his estate, ’ ’ etc.

Section 48 said: “The judges of the respective orphan’s courts, and all others concerned in the execution of any last will and testament, shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters and things that shall be brought before them concerning the same.”

When the common law, with many exceptions and qualifications, was adopted January 19, 1816 (1 Ter. Laws, 436), it was provided in effect that only such parts of that law as were “not contrary to the laws of this Territory” should be in force.

We thus see that not only the law as to the intention of the testator was the “first on the ground,” but also that it was given a dominant influence in the field of interpretation.

By that Act of 1816 it was provided that “the doctrine of entails shall never be allowed.”

In the revision of 1825' the following section was enacted (R. S.-1825', p. 795', sec. 19):

“Be it further enacted, That all devises made of lands, or other estate within this State, in which the words ‘heirs and assigns’ or ‘heirs and assigns forever’ are omitted, and no expressions are contained in such will and testament whereby it shall appear that such devise was intended to convey only an estate for life, and no further devise being made of the devised premises, to take effect after the decease of the devisee to whom the same shall be given, all such devises shall be taken and understood to be the intention of the testator thereby to grant and devise an absolute estate in the same, and shall be construed, deemed and adjudged, in all courts of law and equity, in this State, to convey an estate in fee simple to the devisee for all such devised premises in as full a manner as if the same had been given or devised to such devisee, and to his heirs and assigns forever, any law, usage or custom to the contrary notwithstanding. ’ ’

The Revised Statutes of 1835 (p. 119, sec, 2) provided: “The term ‘heirs/'.or words of inheritance, shall not be necessary to create or convey an estate in fee simple; and every conveyance of any real estafé hereafter executed, shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the term of the grant.”

Those statutes have remained substantially the same to the present time as beacon lights, though often lost to the view. No one ought to hesitate in saying that as long as the testator keeps within the limits of the laws against entails and perpetuities, he has the right under those statutes to express his intention either in express words or in words from which his intention may clearly be inferred and to have that intention executed, provided only that he does not attempt to give his property for some purpose forbidden by law.

By the common law “no remainder can be limited after the grant of an estate in fee simple; because a fee simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate; a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of.” [2 Blackstone, 164.]

In the case of Attorney-General v. Hall, decided by the English Court of Chancery in 1731, Fitzg. 314, the will was as follows: “I give and bequeath all my real and personal estate unto my son Francis Hall, and to the heirs of his body, to his and their use, to, be paid unto him in three years after my death, and during that time I make Sir Isaac Newton executor of this my will, and after the said three years expires, I do appoint that my said son Francis shall be executor ; and if my said son Francis Hall shall die, leaving no heirs of his body living, then I give and bequeath so much of my said real and personal estate, as my said son shall be possessed of at his death, to the Goldsmiths’ Company of London in trust for several charitable uses mentioned in his will.”

It was held that the remainder was void, because of the power of disposition in the will.

That case was followed in 1809 by Chief Justice Parsons in Ide v. Ide, 5 Mass. 499, and by two cases in New York, Jackson v. Bull, 10 Johns. 18, and Jackson v. Robins, 16 Johns. 537, decided in 1813 and 1819 respectively.

Chancellor Kent, whose commentaries were written between 1826 and 1830', says: “If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void, as a remainder, because of the preceding fee, and it is void by the way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given or necessarily implied by tbe will.” [4 Kent, 270.]

In 1832, Smith v. Bell, 6 Peters, 68, was. decided in an opinion by Chief -Justice Marshall. The essential parts of the will were as follows: “Which personal estate, I give and bequeath unto my said wife Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely, the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin.” Jesse Goodwin was the testator’s son.

. The court said: “In the case before the court, it is, we think; impossible to mistake the intent. The testator unquestionably intended to make a present provision for his wife and a future provision for his son. This intention can be defeated only by expunging, or rendering totally inoperative, the last clause of the will. In doing so we must disregard a long series of opinions, making the intention of the testator the polar star to guide us in the construction of wills, because we find words which indicate an intention to permit the first taker to use part of the estate bequeathed.”

It will be noticed that, according to Blackstone and Kent, if the language of the devise to the first taker, considered by itself, without reference to the succeeding parts of the will, creates a fee with power of disposition, then any limitation over is void. Those rules were not for the purpose of discovering the intention of the testator, but they resulted in the destruction of that intention. As stated by Marshall, J., in his dissenting opinion in Cornwell v. Wulff, 148 Mo. 576, “In our day there is not the undefined apprehension about tenures that formerly disturbed the placid dreams of our English predecessors in the law.”

Kent himself says: “Perpetuities, as applied to real estates, were conducive to the power and grandeur of ancient families, and gratifying to the pride of aristocracy; but they were extremely disrelished by the nation at large, as being inconsistent with the free and unfettered enjoyment of property. ‘The reluctant spirit of English liberty,’ said Lord Northington, ‘would not submit to the statute of entails; and Westminster Hall, siding with liberty, found means to evade it.’ ” [4 Kent, 264.]

This court has never been in dread of entails or perpetuities, hence, as “reason is the life of the law,” those rules making such limitation over void, never should have been given, any vitality in this State.

Such was the situation when in 1848 Rubey v. Barnett, 12 Mo. 3, was decided. In that case the first taker was, by express words, given only a life estate; so that the question here involved was not in issue there. Yet the court said (l. c. 6): “But a devise to a wife for life, and after her decease she to give the same to whom she will, passes but an estate for life with a power; yet if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words.”

Thus it will be observed that, as to the question then in hand the above language declaring that the life estate could be created only by express words was obitér. That case made no reference to any of the above statutes or to Smith v. Bell, supra, but did cite with approval Jackson v. Robins, supra, and has become, in spite of its origin, the leading case in the State by authority of which remainders limited over on what would otherwise have been a fee, have been sometimes declared void, even as late as Jackson v. Littell, 213 Mo. 589.

In Chiles v. Bartleson, 21 Mo. 344, the third item of the will gave the property to the wife generally. The eighth item provided: “And further, it is my will that the bequests made to my wife, Prances, at her death, be equally divided between my four chib dren.” • Judge Leonard said: “The intention of the testator is plain enough; the whole will must be read together, and effect given to every clause of it, and the words used are to be understood in the sense indicated by the whole instrument. Our duty, in the lan-guage of our own statute, is ‘to have regard to the true intent and meaning of the testator.’ ”

We shall now proceed to enumerate the cases -in this State construing wills or deeds devising or conveying property to the first taker generally with power of disposal and with a limitation over of the part undisposed of. We shall not burden this opinion with a statement of the language of each instrument construed, but will refer the reader to the respective cases. In Green v. Sutton, 50 Mo. 186, it was held that the limitation over was void. Now it will be noticed, and this remark will apply to all the cases, that where the remainder has been declared void, it is necessarily on the ground, not that the intention of the testator was not clear, but that, however clearly it might be expressed, it was void.

In the case of Carr v. Dings, reported in 54 Mo. 95, and 58 Mo. 400, it was held that the remainder was valid, but without an extended consideration of the authorities. The case of Straat v. Uhrig, 56 Mo. 482, likewise held the remainder valid, but again there was no discussion of the authorities.

State ex rel. v. Tolson, 73 Mo. 320, held the remainder void, as did also Wead v. Gray, 78 Mo. 59. In the latter case it was said that the case of Smith y. Bell, supra, had not been followed in this State. It may also be said that in none of the cases holding the remainder void was any mention made of the statute in regard to the construction of wills.

In Bean v. Kenmuir, 86 Mo. 666, the court was divided, a majority of three holding the remainder valid, while two held, not that the testator did not intend to create a remainder over, but that such remaincler was void. The unanimous court in Harbison v. James, 90 Mo. 411, held such remainder valid and approved Smith v. Bell, supra. So, it could no longer be said that that ease was not followed in this State. The latter case was followed and approved in Munro v. Collins, 95 Mo. 33.

In Lewis v. Pitman, 101 Mo. 281, the remainder was upheld, all concurring, in the following language: “If the first taker is to have but a life estate, then it matters not whether this appears from express words creating a life estate or from a consideration of the whole will. What difference can it make in which form the testator expressed his intention, so that it is clearly expressed? There may be and are many cases when the added power of disposition will turn the scale, but if it is the intention of the testator to give the first taker a life estate only, notwithstanding the power of disposition, then that intention ought to prevail. This is the common sense view of the matter, and it has the support of well considered judgments.”

Schorr v. Carter, 120 Mo. l. c. 414, has this language: “It is also a well settled rule of law that the whole will must be construed together, not in detached parts; and if it be manifest, when so construed, that he did not intend to pass the fee, then the intention must prevail. The rule thus announced does not conflict with the one that, where an estate is given in one part of the instrument, such estate cannot be taken away, or cut down by raising a doubt upon the extent of meaning or application of a subsequent clause, or by inference therefrom, or that a remainder cannot be engrafted on a fee.”

Cornwell v. Orton, 126 Mo. 355, decided in this .Division, quoted with seeming approval from Lewis v. Pitman, supra, as follows: “If it is the clear intention from the whole will that the first taker is to have but a life estate, then the added power of disposition will not convert the estate into one of absolute ownership.” And yet, after making that quotation, the court said: “It follows that we have a remainder lim-\ ited after a fee simple absolute, and we have seen this can no more be done now than at common law. The limitation over is inconsistent with, and repugnant to, the grant to Mrs. Cornwell.”

Thus it will be seen that while this last case holds that the court must consider the whole will to find the intent of the testator, yet, if such intent be found to limit a remainder over on what would otherwise have been a fee, then the remainder is void. Here we may ask the question, "Why travel all over the instrument diligently searching for the intention of the testator as expressed therein, and then destroy it as soon as found by declaring it void? ■

In McMillan v. Farrow, 141 Mo. 55, such remainder was held valid by this Division, the court laying stress on the fact that the testator, in creating the remainder over, used the words “whatever of my property may remain undisposed of at her death, I give and bequeath,” etc.

Cornwell v. Wulff, supra, again reached this court, 148 Mo. 542, and the remainder was held void by a divided court in Banc of four to three. The majority again held the position assumed when the case was first here that although it was not necessary that the life estate should be created by express words, but that such intention might appear from the whole instrument, yet, in the language of the court, “It goes-without saying that, if this conveyance is to be tested by common law principles, having created an estate in fee simple in Mrs. Cornwell, any attempt to create a remainder thereafter would be void.”

Marshall, J.,

in a dissenting opinion, called attention to the lack of harmony in the decisions on the subject, and collated the eases on both sides of the question, and after speaking of the fact that an expressly created life estate with power of disposal did not amount to a fee, said: “If this is permissible because it effectuates the intention of the grantor, what logic is. there in requiring the grantor to express his intention in set or stereotyped language, and in refusing to observe that intention when clearly expressed in equivalent terms?”

The next case, Walton v. Drumtra, 152 Mo. 489, decided February 7, 1899, in Banc, all concurring, held that the remainder was valid. Pour members of the court held that Cornwell v. Wulff, supra, should be overruled, while three of them distinguished that case from the one then being considered, and were unwilling to overrule Cornwell v. Wulff.

In Cross v. Hoch, 149 Mo. l. c. 343, it was unanimously held by Division One that the remainder was valid. Attention was called to what is now section 2870, Revised Statutes 1909, providing that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant,” and the court then said; “Thus the statute recognizes that an absolute estate may be limited in express terms to a life estate, and that it may also be limited to a life estate by the necessary implication of the terms of the grant. This is not only the statute law of the State, but the same rule has become thoroughly imbedded in the jurisprudence of the State by judicial interpretation.”

The case of Yocum v. Siler, 160 Mo. 281, is often-cited in this connection, and we refer to it for that reason, but an examination of that case will show that it did not belong to the class of cases under consideration.

Roth v. Rauschenbusch, 173 Mo. 582, decided by this Division, held the limitation over void. In that ease it was said, “After all the discussion in Cornwell v. Wulff and Walton v. Drumtra, 152 Mo. 489, in which, the construction placed by this court upon the deed in Cornwell v. Wulff was discredited.,.the law remained just as it had been announced by this court in that case and the courts generally throughout the land.” The case was not sent to the court in Banc, and .this Division assumed the responsibility of overruling, in effect, the decision of the full court in Walton v. Drumtra.

Then followed the cases of Gannon v. Albright, 183 Mo. 238, and Gannon v. Pauk, 183 Mo. 265, the latter, case being reported on second appeal. in 200 Mo. 75. We will not try to state the scope of those cases, but refer to them in order to call 'attention to the fact that it was finally held that the property had been disposed of under the power of disposal, so that the question of the validity of the limitation over was not at the last involved in the case.

In Papin v. Piednoir, 205 Mo. 521, and in Jackson v. Littell, 213 Mo. 589, both decided by this Division, the limitation over was held void. In both cases there was an express power of disposal, "and both those cases are opposed to the opinion of the court in Banc in Walton v. Drumtra.

The opinion of Fox, J., in Armor v. Frey, 226 Mo. 646, and of Perriss, J., in Threlkeld v. Threlkeld, 238 Mo. 459, would make it unnecessary to go at length into this question, were it not for the fact that the wills in those cases had no express power of disposal, while in the ease under consideration the issue is presented in substantially the same condition as in Papin v. Piednoir and Jackson v. Littell, supra.

We have reached a different conclusion from that of this Division in those cases, and we think the opinion of the court in Banc in Walton v. Drumtra, supra, is and should be the rule in this .State. We have not overlooked the fact that in the opinion of four members of the court in Banc in Gannon v. Albright, 183 Mo. 238, it was said that the remainder was void, yet in that same opinion, in summing up, it was said, l. c. 264: “Finally, that by the said fourth clause of the will the said two sons took a fee simple subject to be defeated upon their dying’ without issue living at their death, and as both died leaving children, the plaintiffs herein, the contingency upon which their fee simple was to be defeated never happened and never can happen, and their estate in fee became absolute, and their warranty deeds conveyed to defendants’ grantors the fee simple title.” Thus it is seen that the validity of the remainder over was not involved in that case, and it does not impair the authority of Walton v. Drumtra, which is followed in Threlkeld v. Threlkeld, and Armor v. Frey, supra; and we likewise follow it.

In what we have above expressed we do not wish to be understood as holding that what would otherwise be a fee in the first taker can be cut down to a less estate by ambiguous words, or words not as clear and strong as those in the devise to the first taker.

■Coming now to the consideration of the Gibson will, we find that it directs the widow to divide the estate by will as therein prescribed in case she does not so divide it in her lifetime. The language is more than precatory. It is absolute. It leaves no discretion in the matter to her. If it were merely a case of precatory trust, the trust would be enforced in-favor of the children and grandchild. [Noe v. Kern, 93 Mo. 367.] But we think the language of the will is such as to create a trust for the remaindermen which the statute executes in them, and of which they are now seized to take effect-in possession on the death of the mother. That remainder is one in “said property devised and bequeathed to her and the increase or proceeds of the same ’ ’ in the amounts and proportions set out in the will. In the creation of that remainder, he identifies the objects of his affection and bounty as clearly as in the devise to the wife, and states clearly what property he gives them and how it shall be apportioned, and the language used is without ambiguity.

We reach the conclusion that the widow took under the will a life estate by clear implication, with full power of disposal for value. She has no power to give away the property or any part of it, not even to the children, except that she may during her life, if she so chooses, divide the whole of the property among the children and grandchild as provided in the will. None of the legacies or bequests given to the children or grandchild are payable until after the widow’s death, unless she chooses to divide the whole estate before her death. She has the right to consume such parts of the principal as may be reasonably necessary for her support in accordance with her station in life.

The decree, which is not in all respects in harmony herewith, is reversed and the cause remanded with directions to enter a decree in accordance with the opinion.

Blair, C., concurs.

PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. JULIUS BATES, Appellant.
    Division Two,
    February 6, 1912.
    MANSLAUGHTER: Heat of.Passion: Self-Defense: Instruction. Defendant was convicted of murder in the second degree for killing deceased •with a knife. According to his own testimony, defendant, after being called vile names, was suddenly and violently assaulted, knocked down and was being choked when he drew his weapon and struck the fatal blow. Held, that the trial court committed reversible error by refusing to give an instruction on manslaughter in the fourth degree. Defendant’s testimony was evidence of lawful and reasonable provocation sufficient to engender that heat of passion which would reduce the offense to manslaughter. The jury should have been left to say whether that testimony was true, and then, if they found it true, to decide whether such provocation actually engendered such heat of passion and precluded malice. And the fact that self-defense was sought to be shown does not, in this kind of case, render unnecessary such instruction on manslaughter.
    Appeal from St. Louis City Circuit Court.— Hon. Geo. ,G. Hitchcock, Judge.
    Reversed and remanded.

      Chas. P. Johnson, Jos. G. Williams and I. A. Rollins for appellant.
    Manslaughter in the fourth degree. See R. S. 1909, Sec. 4467. The testimony in this case does not justify an instruction of murder in the first degree, but as the appellant was not convicted of that crime he can not under our decisions complain. The nature of the provocation which reduces the homicide to manslaughter in every case depends upon the circumstances, facts and conditions existing in each particular case; and in speaking of that this court has held that “legal, lawful, adequate and reasonable” when used as adjectives qualifying provocations are synonymous. As a general rule with very few exceptions it takes an assault or personal violence to constitute the provocation that will reduce the homicide to manslaughter. State v. McKinze, 177 Mo. 712. When two men are engaged in a common assault upon each other, and after the assault has been made and during the fight one is killed; the court must instruct the jury on manslaughter in the fourth degree. State v. Herman. 117 Mo. 687; State v. Ellis, 74 Mo. 215; State v. Dickorman, 75 Mo. 570*; State v. Sebastian, 215 Mo. 81. The trial court erred in failing to instruct the jury in writing upon questions of law in the case, necessary for their information in giving their verdict. This duty is made imperative, whether proper instructions are asked by counsel or not. The failure to so instruct in case of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial, or warrant a reversal. State v. Moxley, 102 Mo. 374; State v. Palmor, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149; State v. Mahly, 68 Mo. 315.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    There is no evidence in this record entitling appellant to an instruction on manslaughter in the fourth degree. It is well settled that the instructions of the court should always be limited to the facts offered in evidence, and should not include features not developed at the- trial. The rule that instructions must be predicated upon the facts developed at the trial applies to criminal cases. State v. Hargraves, 188 Mo. 337; State v. Calloway, 154 Mo. 91; State v. Heath, 237 Mo. 235. Courts should not invite the compromise of crime by instructing on degrees not warranted by the evidence. On the part of the State the testimony clearly establishes that, without the slightest provocation, appellant stabbed and killed the deceased. At no time, according to the State’s evidence, did deceased make any hostile demonstrations or attempt to assault appellant. He merely refused to comply with appellant’s command to leave the rear platform and enter the car. The words uttered by him on this occasion certainly furnish no basis for a provocation sufficient to reduce the killing to manslaughter. The rule is well settled that: “Neither words of reproach, how grievous soever, nor indecent, provoking actions or gestures, however much calculated to excite indignation or arouse the passions, are sufficient to free the party killing from the gnilt of murder. To have the effect of reducing the guilt to manslaughter, the provocation must ‘consist of personal violence,’ or otherwise expressed, there must' be an assault upon the person and direct and actual battery.” State v. Gartrell, 171 Mo. 516; State v. Sharp, 233 Mo. 269. The only evidence offered in behalf of the defense, except character evidence, was that of appellant, and, in detailing the facts, he gave not the slightest intimation that he was actuated by any impulse save that of self-defense. In all this record there is not a syllable of testimony tending to show that he killed deceased while under a heat of passion aroused by a sudden and lawful provocation. If the jury believed the evidence on the part of the State, appellant was clearly guilty of murder in either the first or second degree. If, on the contrary, they believed the evidence on the part of appellant, he was-not guilty of any offense, but was justified in the killing. We respectfully submit that there is no testimony in this case warranting an instruction on fourth degree manslaughter. State v. Gartrell, 171 Mo. 489; State v. Meadows, 156 Mo. 110; State v. Lewis, 118 Mo. 82; State v. Ramsey, 82 Mo. 137; State v. Dunn, 80 Mo. 690; State v. McCollum, 119 Mo. 495.
   BLAIR, C.

— Plaving been convicted in the circuit court of the city of St. Louis of murder in the second degree and sentenced to the penitentiary for a term of ten years, defendant has appealed.

Defendant and deceased, Joseph Driskell, were entire strangers and the killing .occurred upon a crowded street car upon which both were passengers. Deceased was standing upon the rear platform of the car when defendant hoarded it and took his position at the door and in front of deceased, who was in front of and leaning against the first of two rails running across the platform dividing it into throe sections. The defendant and deceased were very near each other and the sudden jerking of the car as it started up catised defendant to “brush” or “bump” against deceased, and out of this trivial incident grew the tragedy.

The evidence offered by the prosecution was fully sufficient to support the verdict returned, though the State’s witnesses did not agree in some important particulars.

The testimony of the witness who seems to have occupied the best position to see what happened and hear what was said was to the effect that defendant was holding to the handle on the car door and (doubtless after the motion of the car had thrown the two against each other) said to deceased: “Why don’t you go inside?” Deceased replied: “I don’t have to go inside; I have been standing here all this while, you get inside.” Deceased then added: “Don’t lean or rub against me.” Defendant then started to turn facing deceased and, opening his knife, said to him: “Don’t talk that way-to me.” As defendant turned Driskell “grabbed at him,” the two men clinched, and defendant went down backward into the ear, deceased on top of him. A bystander seized defendant’s right arm and the witness lifted deceased to his feet.

Other witnesses gave somewhat different versions of the affair, one declaring that defendant stabbed deceased as he turned facing him and that deceased was not down at any time. Another, that he, the witness, seized defendant from behind and threw him backward to the car floor and that deceased was bending over the defendant as the latter lay upon his back. It appeared that two of deceased’s companions took defendant’s knife from him, one holding his right arm and the other placing his foot upon his neck and face and jerking the knife out of his hand, thereby cutting defendant’s fingers slightly.

Deceased died from the effects of a knife wound which pierced the left ventricle of the heart. Another slight wound was found upon the head back of the left ear. Despite his wounds, the testimony is that deceased stood in his former position leaning against the rail, while the car ran two blocks, and then, with some assistance, walked from the car to the sidewalk, where he sat down and died.

On the part of the defense, there was evidence that defendant’s reputation for peace, quiet, sobriety and industry was good.

It appeared from the testimony of the policeman who arrested him, that defendant’s lips were bruised and bleeding and his fingers had been cut.

Defendant testified that when the car jerked and caused him to brush ag’ainst deceased, the latter asked him “what in the hell was the matter with him,” and when he tried to explain and asked deceased to excuse him, deceased said: “Like hell I will excuse you; you damn black son-of-a-bitch, stand up there.” At this juncture, the conductor came back for defendant’s fare and passed on. Deceased then said: “Get off this car and I will fix you.” Defendant replied that he had paid his fare, and “didn’t have no right to get off the ear,” whereupon deceased called defendant a vile name and struck him in the mouth with his fist and immediately a man seized him (defendant) from behind and jerked him down in the car, deceased leaping upon him and commencing to choke him with both hands. Defendant’s testimony is further to the effect that not until he was down and deceased upon him, choking him, did he draw his knife; that he then got his knife out of his pocket; that he had to do something because deceased “was killing him;” that having taken out his knife he “made a blow somehow;” that someone seized his right hand and another put Iris foot upon his neck, and seizing the knife, jerked it away, thereby cutting his fingers. He further testi fied that when he got to his feet he “didn’t have no forethought, because he was crowded on and scared to death.”

I. Defendant’s counsel requested and the trial court refused to give an instruction on manslaughter in the fourth degree, and as a consequence this judgment must be reversed and the cause remanded for retrial.

The testimony of the defendant discloses a typical case of manslaughter as that offense is defined in the text-books and reports. Why the instruction requested was refused it is difficult to understand. The trial court should not have thus, by implication, excluded from the consideration of the jury any part of the defendant’s testimony.

According to that testimony, defendant, after being called vile names, was suddenly and violently assaulted, knocked down and was being choked'when he drew his weapon and struck the fatal blow.

That this was evidence of lawful and reasonable provocation sufficient to engender that heat of passion which reduces the offense of slaying another to manslaughter in the fourth degree is too apparent to require discussion or the citation of authority.

The defendant’s testimony tending to show that the killing was manslaughter, it was the duty of the trial court to submit that question by proper instructions and leave it to the jury to say whether that testimony was true.

If courts can, without error, refuse to instruct juries upon one phase of a defendant’s testimony, they can refuse to instruct upon any and all phases of it and thus, in effect, practically nullify the statute authorizing defendants in criminal cases to testify.

It is suggested that this record presents a case in which there were no issues save murder and self-defense, because defendant declared that at the time he stabbed deceased the latter “was killing him,” and he was “dying as fast as he could.”

The “fact that self-defense was sought to be shown does not render unnecessary an instruction authorizing a conviction, for manslaughter” (Wharton on Homicide, sec. 165; State v. McKinzie, 102 Mo. l. c. 632; State v. Matthews, 148 Mo. l. c. 197; State v. Barnett and Baker, 203 Mo. l. c. 661-662) in a ease of the kind now before us.

That a case might arise in which the defendant’s testimony and the facts and circumstances might so clearly disclose the absence of heat of passion as to render an instruction on manslaughter in the fourth degree unnecessary, need be neither denied nor affirmed. This is no such case.

There was evidence of lawful and reasonable provocation. Whether that evidence was true was a question for the jury. If the jury found that evidence true, it was for them to decide whether such provocation actually engendered that heat of passion necessary to reduce the degree of the crime from murder to manslaughter. [State v. Jones, 20 Mo. l. c. 64; State v. Woods, 97 Mo. l. c. 35; Mundine v. State, 37 Tex. Cr. Rep. l. c. 15; People v. Holmes, 111 Mich. l. c. 371; Roberson v. State, 43 Fla. l. c. 170; Bolzer v. People, 129 Ill. l. c. 120; Wharton on Homicide (3 Ed.), sec. 203; 2 Bishop’s New Cr. Law (8 Ed.), sec. 716; 1 McClain’s Cr. Law, secs. 342, 345.]

In order to convict defendant of murder in either degree, it was necessary for the State to prove beyond a reasonable doubt that in stabbing deceased defendant was actuated by malice. Evidence of provocation of the kind indicated by defendant’s testimony tended directly to rebut the presumption that the killing was maliciously done and the instruction on manslaughter should have been given in order that the jury might, under its guidance, have determined whether the killing was mnrder or manslaughter, i. e., was done with or without malice.

Discussing an analogous question, the Supreme Court of the United States, in Stevenson v. United States, 162 U. S. l. c. 320, said:

“The jury should have been permitted to determine the credibility of the evidence, as above detailed, and, if true, whether the effect of the conduct of the deceased, in shooting, as he did, into the saloon, and considering all the circumstances of the case, was such as naturally tended to and did excite in the mind of the plaintiff in error a sudden passion, either of rage or fear, and under the influence of which he fired the shot and killed the deceased wilfully and unlawfully, but at the same time without malice. If he thus fired the pistol, would not a jury have the right to say that the consequent killing was manslaughter instead of murder? Is it not clearly a question of fact for a jury to determine just what the mental condition of plaintiff in error was in regard to malice? The ruling of the trial judge [refusing to instruct on manslaughter] in effect was to say that as a matter of law there was nothing in all this evidence, if true, which would permit the jury to find that the plaintiff in error when he fired his rifle was so much under the influence of sudden passion, caused by these circumstances and by this assault upon him, as not to have been actuated by that malice which the law defines as a necessary ingredient in the crime of murder. Is it perfectly plain and clear, as a conclusion of law, that shooting at another under circumstances such as were detailed ... in this case can have no tendency to raise within the mind of the person thus assaulted such a sudden passion of anger or terror as to deprive his subsequent act of that malice which is necessary to make it murder? If it is not to be so asserted as a matter of law, then it becomes a question of fact in such case, and that question must be answered by the jury. Whether the witnesses told the truth in regard to such circumstances is not for the court to say, nor is it for the court to decide upon the weight to be given to them if proper for the consideration of the jury. ’ ’

In that case the same argument was made as in this, that the evidence was pertinent solely to the defense of self-defense and “raised no issue as to the grade of the crime if the theory of self-defense were not sustained.”

Responding to this, the court said:'

“We do not see the force of the objection. The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised ah issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. . . . The jury might reject the theory of self-defense, as they might say the shot from the pistol of the deceased had already been fired and the plaintiff in error had not been harmed, and, therefore, firing back was unnecessary and was not an act of self-defense. But why should the other issue be taken from the jury and they not be permitted to pass upon it as upon a question of fact?”

In that case the judgment was reversed solely by reason of the trial court’s failure, to give the requested instruction on manslaughter.

In some cases cited in the briefs (State v. McCollum, 119 Mo. l. c. 475, 476; State v. Dunn, 80 Mo. l. c. 693; State v. Ramsey, 82 Mo. l. c. 138; State v. Lewis, 118 Mo. l. c. 83; State v. Meadows, 156 Mo. l. c. 116; State v. Gartrell, 171 Mo. l. c. 522) it was held that there was no evidence of provocation sufficient to engender passion reducing the degree of the crime to manslaughter, but in no case has it been so held in which the evidence resembled that in the case at bar.

In the case of State v. Gartrell, supra, something was said concerning defendant’s failure to indicate in his testimony that he was laboring under heat of passion. The court clearly did not intend this remark to he given great importance since it held that the evidence justified an instruction for murder in the second degree, and since the character of the heat of passion necessary to reduce the grade of such a crime from murder in the first to murder in the second degree is like that necessary to reduce it to manslaughter, the difference lying in the character of the provocation which engenders the passion and not in the passion' engendered.

Further, the facts in the G-artrell case are wholly different in character from the facts in this.

It may he added that we do not intend to be understood as intimating that the instruction on self-defense could have been omitted by the court.

II. • In view of the result indicated in the preceding paragraph, it is obviously unnecessary to consider the question whether at new trial should have been granted on the ground of newly discovered evidence.

For -the reasons given, the judgment is reversed and the cause remanded.

Boy, G., concurs.

PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: KENNISH, J.

text:
    LAWRENCE C. CARTER v. WILLIAM C. MACY, Appellant.
    Division Two,
    February 6, 1912.
    1. CONVEYANCE: Omission of Word Acre: Supplied by Pleading. Where defendant by his answer stated that a certain grantor in plaintiff’s chain of title conveyed “86 acres,” he cannot object to a deed which omitted the word “acres” after the 86. In fact, it was not necessary, in view of that averment in the answer, for plaintiff to introduce the deed in evidence.
    2. EJECTMENT: Division of Excess in Quarter Section. In ejectment, plaintiff can recover only by showing a legal title in himself; and if his deed and chain of title convey only 86 acres he can recover no more. So that where there was 157.2 acres in a quarter section, and the heirs by friendly partition divided the lands between them, giving to plaintiff’s grantor 86 acres and to defendant’s grantor 71 acres, the court cannot, in a suit in ejectment by plaintiff, for the omitted strip of one-fifth of an acre, divide it proportionately between them. Sec. 11320, R. S. 1909, providing for dividing the excess, etc., has no application to such a state of facts.
    Appeal from Daviess Circuit Court. — Row. Francis R.' Trimble, Judge..
    Aeeirmeu (conditionally).

      Grusen & Britton for appellant.
    In ejectment plaintiff must recover, if at all, on the strength of his own title, and not because of any weakness or want of title in the defendant. Large v. Fisher, 49 Mo. 307; Funkhouser v. P'eck, 67 Mo. 19; Siemers v. Schrader, 14 Mo. App. 346; Marvin v. Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121; West v. Bretell, 115 Mo. 653; Mulharin v. Simpson, 124 Mo. 610; Cox v. Arnald, 129 Mo. 337; Parker v, Cassingham, 130 Mo. 348; Ratliff v. Craves, 132 Mo. 76; Stephens v. Murray, 132 Mo. 468; Burnham v, Ritt, 143 Mo. 414; Creech v. Childers, 156 Mo. 338. To recover in ejectment plaintiff must prove he has the legal title, at the beginning of the suit, and he cannot maintain ejectment where he has never been possessed of the legal title. Buxton v. Carter, 11 Mo. 481; Norfleet v. Russell, 64 Mo. 176; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; Nalle v. Thompson, 173 Mo. 595>; Kingman v. Seivers, 143 Mo. 519; Clay v. Mayr, 144 Mo. 376. In' ejectment plaintiff must recover on a strict legal title, an equitable title is not sufficient. Martin v. Kitchen, 196 Mo. 477; Abies v. Webb,' 186 Mo. 233. Plaintiff must not only show a legal title, but must show that he was entitled to possession. Finley v. Babb, 144 Mo. 403; Hough v. Light & Fuel Co., 127 Mo. App. 570. Where the defendant is in possession of land not under color of title, plaintiff cannot eject him therefrom without showing title and right of possession in himself. McVey v. Carr, 159 Mo. 648. Plaintiff in ejectment having shown title to a portion of land in dispute cannot recover that to which he has shown no title. Fenwick v. Gill, 34 Mo. 194. In ejectment the plaintiff must show a complete chain of title from the government or the admitted common source of title and the conveyances constituting the chain, must each be sufficient to convey a legal title, or he must show such possession as to constitute a legal title. 10 Am. & Eng. Ency. Law (2 Ed), p. 484, subd. 3; Dollarhide v. Mabary, 125 Mo. 197; Harvey v. Anderson, 129 Mo. 206; Robinson v. Claggett, 149 Mo. 153; Schrack v. Zubler, 34 Pa. St. 38; Ablard v. Fitzgerald, 87 Wis. 516. A deed to be a valid conveyance must contain a definite or certain description of the property conveyed, so that the land intended to be conveyed can be indentified and ascertained by means of the information given by the deed, and if the description in the deed is so indefinite and uncertain that this cannot be done it is void for uncertainty. 4 Am. & Eng. Ency. Law (2 Ed.), 802; 13 Cyc. 543; Devlin on Deeds (2 Ed.), sec. 1010; 1 Greenleaf on Ev.> (14 Ed.), 301; Holme v. Strantman, 35' Mo. 293; Campbell v. Johnson, 44 Mo. 247; Clemens v. Rannells, 34 Mo. 579; Jones v. Carter, 56 Mo.. 403; Vasquez v. Richardson, 19 Mo. 96; Carter v. Barnes, 26 111. 454; Baily v. White, 41 N. II. 337; Edens v. Miller, 147 Ind. 208; Caldwell v. Fulton, 31 Pa. St. 489; Louisville So N. R. Co. v. Boykins, 76 Ala. 560; Wilson v. Inloes, 6 Gill (Md.) 121.

      Boyd Diídley and J. A. Selby for respondent.
    Appellant complains of the action of the court in prorating the excess between the two tracts. The evidence shows this quarter section, containing 157.20 acres, belonged to Nichols. Partition of his lands among his children after his death, this quarter fell to Rhoda Story and Eliza Hover. It was surveyed, the dividing line established, and a stone set. The tract south of that line went to Eliza Hover, the tract north of the line went to Rhoda Story. It was complete partition. The deeds being intended as a partition of the whole quarter section conveyed to the surveyed partition line regardless of the small sur-, plus. Under circumstances of this kind it is fundamental that if there be an excess it should be prorated. Even if this were not true and the court should find that the line was set a little too far south, that the excess should all go to the defendant, it is a trifling matter, less than twenty-four inches, and as the whole matter is before this court, it would be entirely proper for .this court to move the line the requisite distance further north and affirm the case with the line so established.
   KENNISH, J.

— This is an appeal by the defendant in an ejectment suit from an adverse judgment of the circuit court of Daviess county. Respondent and appellant own adjoining lands in said county, and this suit was brought by the respondent to recover the possession of two narrow strips of land alleged to be in the possession of the appellant. The first tract is about two rods wide and about one-fourth of a mile in length. As to this tract, although appellant disclaimed in his answer both ownership and possession, he thereafter entered into a written stipulation with respondent, which was introduced in evidence, in which it was admitted that the defendant, at the comencement of the suit, was in possession of the lands in controversy. However, as appellant does not complain in this court of the finding against him as to such tract, it is thus removed from the zone of controversy, and will not be further considered or referred to.

The other tract sued for is described in the peti tion as “a strip of land three rods wide, north and south, and one-half mile long, east and west, off of the south side of the north eighty-six acres of the southeast quarter of section 13, township 59', range 27, in said county. Said strip of land being immediately north of the south 71 acres of said quarter section, and lies south of the fence as now built between the lands of the plaintiff and the defendant, and is in within the enclosure of the defendant.”

It was agreed that Mounts Nichols, deceased, was the common source of title. The last will and testament of said Nichols was introduced in evidence by plaintiff, and by one of the provisions therein the said southeast quarter section, together with other lands, was devised to his six daughters named in the will. An amicable partition of the lands so devised was made in the year 1873 between the parties entitled, by which a tract of “eighty-six acres off of the north side of the southeast quarter of section 13,” etc., was set off and conveyed to a grantee through whom plaintiff acquired title, and a tract of “seventy-one acres off the south side of the southeast quarter of section 13,” etc., was set off and conveyed to a grantee through whom defendant acquired title. Plaintiff and defendant acquired title by mesne conveyances, each of which described the lands as in the partition deeds.

There was testimony' tending to prove that pursuant to such partition a survey was made by agreement and large corner stones were buried in the ground, one on the east and one on the west, to mark the boundary line between the said two tracts of land. These monuments remained in position at the time of the trial. According to the government survey, the plant of which was introduced in evidence, the said quarter section contained 157.20 acres, and accepting the said corner stones as fixing the true boundary line, the quantity of land on the north side is 86.20’ acres, and on the south side 71 acres, from which it follows that the entire quarter section contains one-fifth of an acre more than the two tracts so partitioned and conveyed. The division fence referred to in the petition and in the testimony was about two rods north of the line as fixed by the said corner stones, and the land in dispute was the narrow strip lying between the fence and such line.

The answer contained three defenses: (1) a general denial, (2) the ten-year Statute of Limitations, and (3) that the fence had been made the boundary line by agreement. The case was tried by the court without a jury, and judgmnt was rendered as hereto fore stated. Appellant has not brought up the evidence as to the second and third defenses, and as the court found against him thereon the case is now before us on the issues made by the petition and the first-defense of the answer only, to-wit, a general denial.

As the court found against the defendant on the issues of adverse possession and an agreed boundary line, plaintiff was clearly entitled to judgment for so much of the land in dispute as would bring his land to the eighty-six acre line, and.(except as to an alleged defect in one of plaintiff’s deeds hereinafter noticed) appellant does not now challenge the judgment in respondent’s favor to that extent, but as to the fifth of an acre, not included in plaintiff’s evidence of title, appellant complains that the court erred. The foregoing is deemed a sufficient statement of the facts essential to the disposition of the questions presented by the record.

I. Appellant contends that plaintiff was not entitled to recover, for the reason that one of the deeds relied on in his chain of title described the land conveyed as “eighty-six .... off of the north side of the southeast quarter,” etc., and that there was a fatal defect in said deed to convey legal title, by the omission of the word “acres” after the word “eighty-six.” This contention is without merit. The deed referred to is the deed from Edward Story and wife to Elijah C. Carter. In appellant’s answer, referring to the same deed, it is alleged “that Edward Story and wife subsequently conveyed the north eighty-six acres of said quarter section to Elijah 0. Carter,” etc. Upon that state of the pleadings, the conveyance of the legal title to the eighty-six acre tract, by said deed, stood admitted, and it was not necessary that plaintiff should have introduced the deed in evidence.

II. The court rendered judgment for plaintiff for the strip of land in controversy, including such proportion of the said one-fifth of an acre as the 86 acres bore to the 157.20 acres, the quantity of land in the entire quarter section as shown by the government survey. In this we think the court erred. The rule prescribed by section 11320, Revised Statutes 1909, for dividing the excess or deficiency in length of. lines over or under the United States Grovernment survey lines, in due proportion among the several subdi-j visions of the section, is not applicable to the facts of this case. The case was not tried upon that theory. Plaintiff’s right to recover was not bottomed upon his title to any snch division of the section, but depended upon a showing that the land in question was a part of the tract of “eighty-six acres off of the north side of the southeast quarter of section 13,” etc. The deeds introduced in evidence so described the land, and regardless of the defendant’s title, or of the total quantity of land in the quarter section, plaintiff’s right of recovery was limited to the land within the lines of the eighty-six acre tract. No principle of the law of ejectment is more firmly established than that the plaintiff must rely on his own title and not on the want of title in the defendant. [Creech v. Childers, 156 Mo. 338 ; Burnham v. Hitt, 143 Mo. 414; Stephens v. Murray, 132 Mo. 468; Cox v. Arnold, 129 Mo. 337; Large v. Fisher, 49 Mo. 307.]

If, pursuant to the partition between the devisees of Nichols, the common source of title, a survey had been made and a boundary line agreed ujDon and established, as shown by the testimony of the witness Ward, and such line differed from the line of the eighty-six acre tract, the issues should have been framed upon that theory, and if a mistake had been made in the deed to plaintiff’s grantor, it could have been reformed by the exercise of the court’s equity jurisdiction, but in ejectment the plaintiff can recover only by showing a legal title, and under the facts of this case no legal title in the plaintiff was proven to the said one-fifth of an acre or any part thereof. [Martin v. Kitchen, 195 Mo. 477; Ables v. Webb, 186 Mo. 233; Clay v. Mayr, 144 Mo. 376.]

III. Appellant contends that the error in the judgment as to the excess of land included cannot be corrected in this court, but that it will necessitate a retrial of the case, and for the reason that the finding of the trial court as to rents and profits was as to all of the lands for which judgment was rendered, including the tract to which the answer disclaimed title or possession, and that therefore the court, on the record before it, cannot apportion such rents and profits. Respondent, in what is entitled a “Provisional Offer to Remit and Prayer for Modification of Judgment,” offers to remit all rents and profits awarded to him by the judgment, as a condition to the affirmance or modification of the judgment.

No sufficient reason appears why this case should be retried, and accordingly the judgment of the trial court is hereby modified by striking out all of that part thereof beginning with the words and figures ‘ ‘ a strip of land 21.615' feet wide at the east end and 34.455 feet wide at the west end,” etc., and ending with the words “37.455 feet south of the west end of the present fence,” and inserting in lieu thereof the following: “a strip of land off of the south side of the north eighty-six acres of the southeast quarter of section thirteen, township fifty-nine, range twenty-seven, Daviess county, Missouri, lying south of the fence described in the petition;” and that the judgment so modified be affirmed, upon condition that respondent will file with the clerk of this court a remittitur of all rents and profits awarded by the judgment in said cause, within ten days from this date; otherwise the judgment will be reversed and the cause remanded. The costs of this appeal are adjudged against the respondent..

Ferriss, P. J., and Brown, J., concur.


text:
    THE STATE v. JOHN STUBBLEFIELD, Appellant.
    Division Two,
    February 6, 1912.
    1. ASSAULT WITH INTENT TO KILL: Instruction: Deadly Weapon: No Evidence: Intent. Defendant was convicted of assault with intent to kill. He had struck another in the left breast with a knife, cutting a gash two or three inches long. Both men were standing at the time. An instruction was given which said: “The law presumes that all men intend the probable consequences of their own willful acts, therefore if you believe the defendant intentionally stabbed Vaughan with a knife in a vital part of his body then the law will presume that he intended to kill him.” Held, that such instruction is erroneous for two reasons: First, there was no direct evidence that the knife used was a deadly weapon, and the wound was not of such character as necessarily to put beyond question the deadly qualities of the weapon. Second, the striking of the blow on purpose being admitted, and the sole issue being as to the intent with which it was delivered, and the evidence clearly warranting a finding that there was no intent to kill, or that, if such intent existed, the defendant acted in self-defense, it would seem to be error to direct the jury that the law presumed, from the partial facts predicated, the specific intent to kill.
    2. INSTRUCTION: Intended to Cover Whole Case: Omission of Necessary Elements. An instruction which purports to cover the whole case and directs a finding must embrace all the issues and the law applicable to them. It must not omit the element of self-defense raised by the pleadings and evidence.
    3. -: Self-defense: Proportionate Force. The instruction on self-defense ought t'o be so drawn as not to exclude the right of defendant to defend his person from any kind of assault, whether deadly or not, provided the force used was not out of proportion to the violence of such attack.
    Appeal from Shannon Circuit Court . — Eon. W. N. Evans, Judge.
    Reversed and- remanded'.

      Orchard & Cunningham for appellant.
    It is a well settled rule of law, both in criminal and civil cases, that an instruction which purports to cover the whole case and directs a finding must embrace all the issues and the law applicable to them. It is but a corollary of this proposition that such an instruction in a criminal proceeding must not ignore any essential element of the offense charged, and that it cannot be pieced out by the contents of other instructions. State v. Helton, 234 Mo. 564, and cases cited.

      Elliott W. Major, Attorney-General, and John M. Atkinson,-Assistant Attorney-General, for the State.
    Appellant contends that the court erred in giving State’s instruction 1, and relies upon the recent case of State v. Helton, 234 Mo. 559, in support of this contention. The court gave nine instructions in the case at bar. Appellant did not request' any additional instructions, nor did he object and save an exception to the failure of the court to instruct on all the law of the case, nor does he allege such an error in his motion for -a new trial. The all important question presented for the consideration of this court is the correctness of the law as declared in the Helton case, supra. Our position is that the Helton case does not follow the long line of decisions of this court, and should be overruled. "We shall first present our views and authorities in support of the correctness of instruction 1 in the case at bar, and that the remaining eight instructions given in this case should be read and considered all together. We shall then consider the Helton ease and the authorities therein cited in support of it. The indictment in the case at bar is drawn under section 4481, Revised Statutes 190-9, known as the “malice aforethought” assault statute. The court, by instruction 1, submitted this cause to the jury under section 4482, Revised Statutes 1909’, which only requires the assault to be made with “intent to kill or to do great bodily harm.” Instruction 1 follows the language of the statute by requiring the assault to have been made “with intent to kill him or do him s,ome great bodily harm. ’ ’ State v. Jones, 86 Mo. 1. c. 625; State v. Harris, 9 Mo. 431; State v. Musick, 101 Mo. 267. Instruction 1 iji the case at bar substantially follows the ■ instruction in the Jones case, except that it omits the words “malice aforethought.” These words were properly omitted, as the court submitted this cause to the jury under section 4482. It is not necessary for instruction 1, in the case at bar, to contain the word “feloniously.” State v. Cummings, 206 Mo. 623. It is to be noted that in none of these cases cited does a single instruction contain such a qualifying clause as is held in the Helton case it should. Instruction 1 in the Helton case is the same as 1 in the case at bar. The original transcript in the Helton case discloses that there were six instructions given in that case. Instruction 4 in that case presented the plea of self-defense, and is in form substantially the same as instruction 7 in the ease at bar. It is the well settled rule in this State that instructions presenting the law of the case must be considered all together. This rule applies to both civil and criminal cases. State v. Weisman, 238 Mo. 560; State v. Walker, 194 Mo. 263; State v. Riney, 137 Mo. 105; State v. Meals, 184 Mo. 256; State v. Kinder, 184 Mo. 295; State v. Sharp, 183 Mo. 738; State v. Dooley, 121 Mo. 596. It is true if but one single instruction intended to present the law of the whole case is given it should present the State’s and the defendant’s, or the plaintiff’s and the defendant’s, as the case may be. Scanlon v. Gulick, 199 Mo. 45>4, and authorities there cited. This line of decisions evidently led the able and learned commissioner into the error as announcecHn the Helton case. The cases of State v. Lentz, 184 Mo. 235, and State v. McNamara, 100 0Mo. 106, do not support the law as announced in the Helton case.
   BLAIR, C.

— Convicted in the circuit court of Shannon county of assault with intent to kill and sentenced to two years in the penitentiary, defendant appealed.

The offense was charged to have been committed September 11, 1909, in Shannon county. The injured person was one W. J. Vaughan. The trouble occurred at a picnic.

According to the testimony of some of the witnesses for the State, defendant, prior to the assault alleged, had said to Vaughan: “I want to make friends with you; I don’t want to have any trouble,” and Vaughan said, “No,” and the two walked away together. Later in the day Vaughan and one Huffman engaged in an altercation and “struck a lick or two,” and as Vaughan attempted to strike again, defendant, who was standing near, ran up and struck Vaughan on the left breast with a knife, cutting a gash two or three inches long. Vaughan- did not testify.

The testimony of the witnesses for the defense-tended to show that Vaughan was of a turbulent and quarrelsome disposition and that defendant’s reputation for peace and*quiet was good; that Vaughan was in a quarrelsome mood the day of the difficulty; that defendant tried to appease his anger, but Vaughan struck defendant, and then Huffman, in the role of peacemaker, stepped between the two. Vaughan in his efforts to get to defendant then struck Huffman twice and finally got around Huffman and then defendant delivered the blow with the knife. Vaughan was a large man, weighing one hundred and eighty to two hundred pounds, and defendant a small man, about one hundred and thirty-five pounds in weight.

Defendant- testified that Vaughan struck him on the shoulder, and the blow partly turned him around, and he then drew his knife; that Huffman intervened and Vaughan “started and I struck him with the knife.” He said his purpose in so doing was to keep Vaughan off of him and that he had no intention of billing him.

I. Instruction numbered 2, given by the court in this case over defendant’s objections and exceptions, reads as follows: “The law presumes that all men intend the probable consequences of their own willful acts, therefore if you believe the defendant intentionally stabbed Vaughan with a knife in a vital part of his body then the law will presume that he intended to kill him.”

There was no direct evidence in this case that the knife used by defendant was a deadly weapon, the knife itself was not in evidence nor described by the witnesses, and the wound was not of such character as necessarily to put beyond question the deadly qualities of the weapon which inflicted it. The instruction falls clearly within the rule laid down in State v. Harris, 209 Mo. l. c. 438, 439. It assumes that the knife was a deadly weapon, for on no other theory could the presumption of an intent to kill be grounded upon its use. In cases in which death results, the event may proclaim the deadly character of the instrument which produces it. The situation in such cases is very different from that in this. Nor is this case like that of State v. Keener, 225 Mo. l. c. 496, 497. The facts of that case clearly distinguish it from this.

The instruction is therefore erroneous, for one thing, in that it invades the province of the jury by assuming as a matter of law that the weapon used by defendant, used in the manner in which he used it, was a deadly weapon. [State v. Harris, supra.]

The statute (Sec. 5244, R. S. 1909) expressly prohibits the trial court from summing up or commenting upon the evidence and no more prejudicial violation of this statutory prohibition could be conceived than the unqualified assumption in an instruction of a disputed and vital fact.

There is another ground upon -which, in this case, the propriety of giving an instruction like that under discussion is open to the gravest doubts even though the question as to the deadliness of the weapon used had been left to the jury.

Upon such a question, referring to such an instruction, this court in State v. Stewart, 29 Mo. 420, 421, said: “But the instruction in reference to the intent of the defendant was calculated to mislead. The intent of the defendant in making the assault was a question of fact for the jury. The law raises no presumption about it, and it was error for the court to tell the jury that ‘the law presumes that every man intends the natural, necessary and probable consequence of his acts.’ ”

In the case of State v. Jones, 86 Mo. l. c. 626, 628, the court approved an instruction that if the weapon used be deadly, “and so used as probably to produce death, the inference is that death was intended.”

In State v. Musick, 101 Mo. l. c. 267, 270; State v. Grant, 144 Mo. l. c. 66, 67, and State v. Keener, 225 Mo. l. c. 496, 497, instructions similar to the second instruction given in this case were held not erroneous, but the rulings were based upon the rule laid down in cases in which death had resulted from the act of the defendant.

That there is a marked difference between the presumption of intent arising from an act which not only probably would but actually did produce death and an act which might or might not but certainly 'did not produce death, seems obvious.

It has been said by this court that from the use of a deadly weapon malice will be presumed, but that even that presumption is a disputable one. [State v. Kelly, 73 Mo. l. c. 612, 613.] But the instruction in this case goes further. It informs the jury that from the use of a knife upon a vital part the law presumes, not malice but, the specific intent to do something which was not done, i. e., to kill.

The decisions in this State are not entirely harmonious, as can be seen from those mentioned, but the weight of authority elsewhere clearly condemns the instruction given in this case for this second reason. [Chrisman v. State, 54 Ark. l. c. 287; Maher v. People, 10 Mich. 212; State v. Dolan, 17 Wash. 499; Roberts v. People, 19 Mich 401; People v. Landman, 103 Cal. 577; Gilbert v. State, 90 Ga. 691; Patterson v. State, 85 Ga. 131; People v. Mize, 80 Cal. 41; Nilan v. People, 27 Colo. 206; Hall v. State, 9 Fla. 203; Morgan v. State, 21 Miss. l. c. 245; 1 McClain on Crim. Law, sec. 279.]

Mr. Bishop says that in a case of this character the jury “may consider the nature and tendency of the proven act to determine the intent prompting it. And the court will instruct them that the doer should be presumed to have intended its natural and probable consequences. Yet they cannot go further. The doctrine of an intent in law, differing from that in fact, is not applicable to these technical attempts . . . A further view is that in reason we cannot first draw an evil intent from an act, and then enhance the evil of the act by adding this intent back again to it.” [1 Bishop’s New Crim. Law (8 Ed.), sec. 735:]

In this ease the question as to whether the defendant’s act in striking Vaughan with the knife was in self-defense or, if not, then whether it was accompanied by an intent to kill, was directly presented by the evidence. The defendant did not deny that the blow was purposely given.

The striking of the blow being admitted and the sole issue being as to the intent with which it was delivered and the evidence clearly warranting a finding that there was no intent to kill or that, if such, intent existed, the defendant acted in, self-defense, it would seem to be error to direct the jury that the law presumed, from the partial facts predicated, the specific .intent to kill.

Under the facts of this particular ease, the court should not have given the instruction in the form in which it did give it, even had the question as to the deadliness of the weapon used been properly submitted to the jury.

II. The first instruction given in this case is identical with one held erroneous in State v. Helton, 234 Mo. l. c. 563, et seq.

The rule laid down in the .Helton case is vigorously assailed by counsel for the State, but conformity to it on a retrial of this case will put no new difficulties in the way of a conviction and we might dismiss the matter without further comment. However, we hold the instruction in this case bad for the reasons given in the case mentioned. In the cases to which we are cited (State v. Jones, 86 Mo. l. c. 625; State v. Harris, 209 Mo. l. c. 431, 432; State v. Musick, 101 Mo. l. c. 267) the instructions approved required the jury to find that the act was done “on purpose and of malice aforethought.” By incorporating these words in the instructions the trial court in each of those cases required the jury to find the facts negativing the defenses set up before a' verdict of guilty could be returned.

That it was not necessary in defining the offense to use those words in the instruction given in this and the Helton ease did not authorize a direction to convict on a finding of facts not inconsistent with the defense made.

III. The instruction as to the good character of defendant should be modified to conform to what was said in State v. Wertz, 191 Mo. l. c. 582. The instruction on self-defense ought to be so drawn as not to exclude the right of defendant to have defended his person from any kind of assault, whether deadly or not, provided the force used was not out of proportion to the violence of such attack and the instruction as to the effect to be given to Vaughan’s reputation for violence should have conformed to the principle announced in State v. Feeley, 194 Mo. l. c. 319.

The judgment is reversed and the cause remanded.

Boy G., concurs.

PER CURIAM.

— The foregoing opinion by Blair, C., is adopted as the opinion of the court.

All the judges concur.