author: BROWN, C. PER CURIAM:

text:
    HENRY LEE THORNBROUGH et al., Appellants, v. AZEL S. CRAVEN et al.
    In Banc,
    November 20, 1920.
    1. WILL: Probate: Proof. A will, bearing a certificate of probate conforming in all respects to the'requirements of the statute, both admitted without objections, will be assumed, on appeal, to haye been admitted to probate; and it will also be assumed, in the absence oLany evidence to the contrary, where there was no objection to the sufficiency of the certificate as proof of its probate arid none to the admissibility of the will, that the probate court was in session at the time proof of the will was made.
    2. -: Devise of Beal Estate: Sale: Substitution. Where the will devised 180 acres, and afterwards testator sold it, and bought another tract of 90 ac^es, which he evidently by a codicil intended to substitute for the specific 180 acres- described, the provisions of the will are to be applied to the ninety acres so purchased.
    3. -: Interpretation: Omission of Heirs and Assigns: Purpose of Statute; The purpose of Section 579, Revised Statutes 1909, providing that “in all devises of lands or other estate in this State, in which the words ‘heirs and assigns,’ or ‘heirs and assigns forever,’ are omitted,” etc., was to abolish the necessity for words of inheritance in the devise of lands as they were abolished in the grant of estates inter vivos; otherwise, the section was a reaffirmation of the rule of the common law as it had always existed. The subsequent expressions ■ used in said section, namely, that if “no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple in the devisee,” are purely cautionary, and were evidently intended to make it certain that the well settled rule of the common law which they expressed was not to be taken as repealed or abrogated.
    4. -: Devise of Absolute Estate: Effect of Subsequent Clauses. Where property is devised in clear language sufficient to convey an absolute fee, the interest thus given is not taken away, cut down or diminished by any subsequent vague and general expression. If it is clearly the intention of the testator .that the devisee shall own the fee simple, his subsequent language directing that what remains of the property at the death of that devisee shall devolve upon a particular person, or class of persons, will not cut down the fee to a life estate, Especially is this the rule, where the language disposing of “that portion which remains” applies, as shown by the context, to personalty, and not to the real estate previously given in fee.
    5. --■: -: -: This Will. By the second clause of his holograph will testator gave to his wife “my real estate,” consisting of one hundred and eighty acres of land specifically described, “and all other realty that I may own at the time of my death;” by the third clause he gave “for her use and benefit all the rest and residue of my property of whatever kind that may remain after payment of my debts;” by the fourth clause he authorized and empowered his said wife “to sell and dispose of any part, parcel or the whole of my estate at .her own option and election, to make deed or deeds éonveying all the right, title and interest to said realty for all purposes as if I was present and signed the deed or deeds;’’ the fifth clause declared that “it is my desire and I hereby will that after the payment of my debts my wife shall have all the residue of whatever kind, to use for her support, protection and comfort and enjoyment during her natural life;” by the sixth clause he authorized her “to dispose of any ámount by will not to exceed one-half of all ’ther estate remaining after all expenses have been paid for her last illness and burial;” and by the seventh clause he declared that “it is iny will that all that portion of my estate remaining undisposed of as hereinbefore authorized and directed be divided into’ eight equal shares and that one share go to each of my brothers and sisters.” Held, first that by the second and third clause, the testator divided his estate into two distinct parts, one of which, by the second clause, he designated as ‘ ‘ real estate ” or ‘ < realty, ’ ’ and the other, by the third clause, he designated as “all the rest and residue of my property,” or as personalty; second, by the second clause, he devised to his wife in clear language an absolute fee in the real estate; third, the power of disposition expressed in the fourth clause. had no effect to reduce to a life estate the fee given by the second; fourth, the limited power of disposition, if intended to apply to the land, is inoperative, because a mere incident to the fee already given; fifth,' the third and fifth clauses operated only on his personalty, “for her use and benefit,” with ■ power to sell it for her “support” etc; and, sixth, the seventh clause did not make a further devise of the real estate to his brothers and sisters, but operated only on “that portion of my estate remaining undisposed of,” as a single fund, to be divided as in case of 'money, by a single process.

      6. —-: Devise of Fee: Further Power of Disposition. An authorized power of disposition will never have the effect to reduce to a life estate a fee already clearly given, for the reason such a power is simply an incident of the fee, and cannot either enlarge or cut down the fee.
    Appeal from Ray Circuit Court. — Hon. Arch B. Davis, Judge.
    Reversed and remanded.

      Crowley S Jacobs and Garner, Clark, Milligan & Gamer for appellants,
    (1) The second clause of the will is broad enough to vest the fee in Gabriella Craven. (2) Where the language of first clause is sufficient to grant the fee, this will not be cut down to a lesser estate, except by language as clear and unambiguous as that contained in the first clause. Middleton v. Dudding, '183 S. W. 443; Cornet v. Cornet, 248 Mo. 184; Cornwell v. Waillf, 148 Mo. 542; Wead v. Gray, 78 Mo. 59; Green v. Sutton, 50 Mo. 186; Cook v. Couch, 100 Mo. 29; Corn-well v. Orton, 126 Mo. 355; Yocum v. Siler, 160 Mo. 281; Roth v. Rauschenbush, 173 Mo. 582.

      Lavelock S Kirkpatrick for respondents.
    (1) According to the evidence contained in the abstract of’ appellants, the instrument in writing purporting to be the last will and testament of Azel P. Craven, deceased, was never admitted to probate. The probating of a will is a judicial act. The unconfirmed proceedings of the judge or clerk, in vacation, are insufficient. Snuffer v. Howerton, 124 Mo. 639; Barnard v. Bateman, 76 Mo. 414. (2) If the testimony of appellants fails to show, as we think it does, that the instrument in writing purporting to be the last will and testament of Azel P. Craven, deceased, was legally probated, and there being nothing to indicate that the widow, Gabriella Craven, exercised the right of election accorded to her under the statute, her interest in the real estate owned by her husband, at the time of his death, under the present state of the evidence, was, under, our statute, restricted to a life estate in one-third part thereof. Sec. 345, R. S. 1909. (3) The intention of the testator must be gathered from the whole will, and if possible, every clause in it should have some operation and be effective for some purpose; single clauses should never be considered singly, but the whole instrument should be taken into consideration. Eckle v. Ryland, 256 Mo. 441; Cornet v. Cornet, 248 Mo. 216; Cox v. Jones, 229 Mo. 63; Armor v. Frey, 226 Mo. 666; Grace v. Perry, 197 Mo. 559; Dozier v. Dozier, 183 Mo. 146; Underwood v. Cave, 176 Mo. 14; Walton v. Drumtra, 152 Mo. 489; Cross v. Hoch, 149 Mo. 336; Schorr v. Carter, 120 Mo. 413; Small V. Field, 102 Mo. 122; Russell v. Eubanks, 84 Mo. 86; Allison v. Chaney, 63 Mo. 282; State ex rel. v. McVeigh, 181 Mo. App. 566; La Yaulx v. McDonald, 190 S. W. 604; Orchard v. Smith, 193 S. W. 573. (4) Under the last will and testament of Azel P¡ Craven, deceased, his widow took a life estate, with a limited power of disposition, remainder to the brothers and sisters of the testator, bodily heirs of deceased brothers or sisters taking* the part the parent would have taken, if living. Smith v. Bell, 6 Pet. 68, 8 L. Ed. 323; Chiles v. Bartleson, 21 Mo. 346; Carr v. Dings, 54 Mo. 95; Carr v. Dings, 58 Mo. 404; Straat v. Uhrig, 56 Mo. 484; Bean v. Kenmuir, 86 Mo. 668; Harbison v. James, 90 Mo. 417, 425; Munro v. Collins, 95 Mo. 41; Lewis v. Pitman, 101 Mo. 287, 293; Redman v. Barger, 118 Mo. 570, 575; McMillan v. Farrow, 141 Mo. 59, 63; Gibson v. Gibson, 239 Mo. 493, 507; Trigg'v. Trigg’, 192 S..W. 1014; Schneider v. Kloepple, 270 Mo. 396. (5) In the fourth clause of his will, testator speaks of the property given and devised to his wife as his property, the exact words used are: “my estate” thereby clearly indicative that he did not intend to devise to his wife a fee simple estate, but a life estate only. McMillan v. Farrow, 141 Mo. 63. (6) In the fifth clause of his will, testator makes it clear that the estate intended for his wife was for her use, support, protection, comfort and enjoyment during her natural life. In this clause, the testator, to make sure that there would he no misconstruction of the preceding clauses of his will, gives his own interpretation thereof, leaving no doubt as to the intended meaning. The rule is, when a testator interprets a particular clause in his. will, the court,.when called on to construe that clause, will follow thé interpretation of the testator. Dugans v. Livingston, 15 Mo. 234; Reinders v. Koppelman, 94 Mo. 343; Small v. Field, 102 Mo. 129; State ex rel. v. McVeigh, 181 Mo. App. 581. (7) The devise to Gabriella Craven, in the second paragraph of testator’s will, is in general terms, without qualifying words, denoting the extent of the estate devised, but the wording of the fifth paragraph, which is as follows: “for her support, protection, comfort and enjoment, during her natural life,” makes it obvious that the estate granted in the second paragraph was intended to be for life only. Cross v. Hoch, 149 Mo. 343; Walton v. Drumtra, 152 Mo. 507;. Gibson v. Gibson, 239 Mo. 506; Burnet v. Burnet, 244 Mo. 498. (8) In the seventh clause, testator refers to property remaining undisposed of. From this paragraph, it is apparent that it was the intention of the testator that all such remaining or undisposed, of property was to be a part of his estate, and not a part of the estate of his wife. His exact words are: “That portion of my estate remaining undisposed of.” McMillan v. Farrow, 141 Mo. 62. £9) The fact that other paragraphs in testator’s will inter: vened between item two, in which the real estate is devised to Gabriella Craven, and items four, five, and seven, where it is made clear that the testator intended to devise to Gabriella Craven a life estate only, does not impair the legal effect of the three last mentioned items. Cox v. Jones, 229 Mo. 67. (10) The devisee in the second paragraph of testator’s will, is Gabriella Craven. In this devise, neither the words “heirs and assigns,” nor the words “heirs and assigns forever” are used. The further devise by the testator, in a subsequent, clause of his will, of the real estate there devised, to take effect after the death of Gabriella Craven, makes definite and certain the fact that Gabriella Craven does not take a fee under said second clause. Sec. 579, ,R- S. 1909.
   BROWN, C.

This is a contest between plaintiffs, who claim as collateral heirs of Gabriella Craven, deceased, and the defendants, who claim as collateral heirs and devisees of Azel P. Craven, deceased, over the title to certain lands in Ray County described as follows: The east half of the southwest quarter and about ten acres off of the east side of the west half of the southwest quarter of Section 31, Township 54, Range 27. Azel P. Graven, and Gabriella .Craven were husband and wife. He died in 1913, leaving a holograph will, duly signed, witnessed and executed, as follows:

“I, Azel P. Craven, of the County of Ray and State of Missouri, being of sound mind and disposing memory considering the uncertainity of life and being desirous to make disposition of my property, do hereby in my own handwriting make, ordain, establish and publish and declare this to be my last will and testament hereby revoking any and all wills heretofore made by me.
“1st. It is my will' that all my just debts be first paid by executor hereinafter named. . „
“2nd. It is my will and I hereby bequeath unto my beloved wife Gabriella Craven the following real estate situate, lying and being in the County of Ray and State of Missouri, to-wit: All of the northeast quarter of the northeast quarter of Section Thirty-six (36), and sixty acres off of the east side of the east half of the southwest quarter of Section Thirty-six (36), also all the west half of the southwest quarter of Section Thirty-six (36), all in Township Fifty-four (54), Range Twenty-eight (28), containing one hundred and eighty acres more or less, and all other realty that I may own at the time of my death.
“3rd. Also I will to my wife Gabriella Craven for her use and benefit all the rest and residue of my property of whatsoever kind that may remain after pay ment of my debts as hereinbefore requested.
“4th. It is my will, and to that end, I hereby authorize and empower my said wife Gabriella Craven to sell and dispose of any part, parcel or the whole of my estate at her own option or election, to make deed or deeds conveying all the right, title and interest to said realty for all purposes as if I was present and signed the deed or deeds.
“5th. It is my desire and I hereby will that after the payment of debts as hereinbefore directed that my wife Gabriella Craven shall have all the residue of whatever kind to use for her support, protection and comfort and enjoyment during her natural life and she is authorized to procure or cause to be erected lasting or permanent monument and inclosure to and around our graves.
“6th. It is my will and I hereby authorize my wife Gabriella Craven to dispose of any amount by will not to exceed one-half of all the estate remaining after all expenses have been paid for her last illness and burial.
“7th. It is my will that all that portion of my estate remaining undisposed of as hereinbefore authorized and directed be divided in eight equal shares and that one share go to each of my brothers and sisters and in case of their death or deaths then to the heirs of their respective bodies begotten.
“8th. It is my will and I hereby appoint my wife Gabriella Craven the executor of this my last will and testament, in witness whereof I have hereunto set my hand and affixed my seal this 5th day of February, A. D. 1890.”

He afterwards added the following codicil:

“To all to whom this may come, know ye that on this the 18th day of April 1898,1 make this the following change in the foregoing to-wit: That real estate described therein has been by me sold and that I now own in fee simple all of the east half of the southwest quarter and the southwest quarter of the southeast quarter of Section Thirty-one (31), Township Fifty-four (54), Range Twenty-seven (27).”

She died intestate in 1917, not having remarried and leaving no descendants. He left no descendants.

The petition filed July, 1917, is in two counts. The first is founded on the provisions of Section 2535, Revised Statutes 1909, and sets out the will and other facts respecting the plaintiff’s claim of title, with the conven• tional prayer. The second count ,is for partition among the heirs of Gabriella Craven, A general demurrer was filed to the first count, which was sustained by the court and the cause proceeded to trial upon the second count resulting in a final judgment for defendants on both counts. Motions for a new trial and in arrest of judgment were in due time filed by plaintiffs and overruled by the court, and this appeal was thereupon duly perfected.

I. The respondents suggest in this court, without other explanation than to cite us to Snuffer v. Howerton, 124 Mo. 637, l. c. 639, and Barnard v. Bateman, 76 Mo. 414, that “according to the evidence con--n -j-pg attract of appellants, the instrument in writing; purporting to be the last will and testament of Azel P. Craven, deceased, was never admitted to probate.”

The record shows that plaintiffs offered “the record of the probate court showing the admission of said will to probate and the order of court admitting said will to probate,” in words and figures following: -

“In the Probate Court of Ray County, Missouri.
“I, George Crowley, Judge and Ex-Officio Clerk of Probate Court of Ray County, Missouri, having examined the foregoing instrument purporting to be the last will and testament of Azel P. Craven, deceased, and signed by the said Azel P. Craven, deceased, and having heard the testimony of said A. J. Kincaid, one of the subscribing witnesses thereto in relation to the execution of the same, and having heard the testimony of Wiley R. Lile, a son of George Lile, the other subscribing witnesses thereto in relation to the handwriting and signature of said George .Lile, deceased, do declare and adjudge said instrument to be the last'will and testament of said Azel P. Craven, deceased, late of Ray. County, Missouri.
“In Testimony Whereof, I Lave hereunto set my hand and affixed the seal of said court at my office in Richmond, Ray County, Missouri, this 28th day of May, A. I). 1913.
‘ ‘ George W. Crowley.
“(Seal) Judge and Ex-Officio Clerk of the “Probate Court of Ray County,
“Missouri.”

This was admitted without objection, nor was there any objection to the admission of the will. The certificate conforms in every respect to the provisions of Section 549 of the statute, and was spread upon the records of the court. If the court was not in session at the time the proof was made, the defendant should have known it at the trial and should have made their objection to the sufficiency of the proof and admissibility of the will. Piad the will been introduced without any other evidence of probate than the statutory certificate thereon and without objection, it would now be too late to raise any question as to the sufficiency of the judicial action necessary'to establish it.

.II. The real and only question before us hangs upon the construction of the will, which , we Have copied in full in the foregoing statement. It appears that after it was executed Mr. Craven sold ' the one |llini|recl anq eighty acres of land he had devised to his wife, purchasing ninety acres in an adjoining section, which he evidently intended to substitute for the original tract, so that we shall assume that all the provisions of the second clause in the will apply to the ninety acres so purchased, which is the tract in controversy.

In this clause he gives to his wife Gabrielia Craven “the following described real estate situate, lying and being in the County of Ray and State of Missouri, to-wit” (here follows a definite and detailed description of his real'estate), “containing one hundred and eighty acres more or less and all other realty .that I may own at the- time of my death. ’ ’ By this clause he segregated his land from the remainder of this estate and did not again mention it in subsequent dispositions. That had he stopped there the devise would have given her an absolute title in fee simple cannot be doubted. The statute (R. S. 1909, sec. 579) provides that “in all devises of lands or other estate in this State, in which the words ‘heirs and assigns,’ or ‘heirs and assigns forever,’ are opiitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take affect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises.” The question is here whether, in the subsequent clauses of this will, there are any expressions whereby it appears that this devise was intended to convey an estate for life only, or by which any further devise is made of the' same premises to take effect after her death. If not she took an estate in fee simple absolute. .

This is not only an interesting but a perennial question, which has vexed this court for many years, demanding fresh exposition of' every new combination of wor.ds which the ingenuity of testators has presented. Lawyers who write wills acquire something of uniformity in expression, but in this case we have to deal with a holograph, in which not only the thoughts but the words of the testator give us new food for contemplation. A subsequent section of the statute (Sec. 583) requires us to “have due regard to the directions of the will, and the true intent and meaning of the testator.” This is a cautious and conservative command. It does not require us in all cases to carry out the directions of the will according to the intent and meaning of the testator, but recognizes the possibility that his intent and meanings may do violence to a rule of law established for the protection of all testators alike, as well as the objects of their bounty. Section 579, for instance, applies only to land which cannot be tossed from hand to hand, nor led by a halter, but to estates which must be méasured by the words in which they are created and which the law must prescribe with uniformity and certainty.

The primary object of Section 579 was to abolish the necessity for words of inheritance in the devise of lands as they were abolished in the grant of estates inter vivos; otherwise, it was a reaffirmance of the rule of the common law as it had always existed. The subsequent expressions used in that section are purely cautionary, and evidently intended to make it certain that the well settled common-law rule which they expressed was not to be taken as repealed or abrogated. That rule is clearly stated by a learned commentator on the law of wills as it exists in this country, as follows: “It is the rule where property is given in clear language 'sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. This rule is applied where a fee is given either expressly by words of limitation, as to a person and his heirs, or by implication by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the testator that the devisee shall oivn the fee simple, his subsequent language directing that what remains of the property at the death of that devisee shall devolve upon a particular person, or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted.” [Underhill on the Law of Wills, sec. 689.] This is the rule ■ so carefully guarded by the Legislature. It has been carefully preserved- and frequently stated and explained by this court with, reference to the statute we have quoted until its meaning is no longer in doubt, and its application has become greatly facilitated. From these numerous expositions we will notice only a few which refer particularly to the language by which the testator may limit the estate which he has already devised in fee simple.

In Chew v. Keller, 100 Mo. l. c. 369, we said: “Again, an estate in fee created by a will cannot be cut down or limited by a subsequent, clause, unless it is as clear and decisive as the language of the clause which devises the real estate. [Freeman v. Coit, 96 N. Y. 63; Byrnes v. Stilwell, 103 N. Y. 453; Landon v. Moore, 45 Conn. 422.] ” In Small v. Field, 102 Mo. l. c. 127, we said: “Under this statute it is obvious that the absolute estate in fee granted to Mrs. Kate Creen could not be impaired, cut down or qualified except by words as affirmatively strong as those which conveyed the estate to her. Such has been the ruling upon similar statutes elsewhere. ’ ’

In Sevier v. Woodson, 205 Mo. 202, we again had occasion to expound this rule of construction and stated it (p. 214) as follows : “We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first, grant.” In Cornet v. Cornet, 248 Mo. l. c. 224, we again quoted and expressly approved the rule as so stated. And finally in Middleton v. Dudding, 183 S. W. 443, ^his court In Banc after a full review of the question both upon principle and authority, approved the .same language in a case not differing materially in facts from the one we are now considering. We do not think we would be justified in incumbering this record with a special examination or even with the citations of all the authorities upon which the doctrine expressed in this rule has been too firmly established to be questioned. They may readily be found by reference to the cases already cited, and more especially in Sevier v. Woodson, supra, and Middleton v. Dudding, supra, from which it will appear that, in the interpretation of a statute similar to ours, it became firmly established in New York upon reasoning so evidently sound that it has been accepted and has become the rule of interpretation in this State. It is perfectly consistent w ith the provision of Section 583 which requires us to “have due regard to the directions of the will and the true intent and meaning of the testator.” •

We have already referred to the fact that estates in lands must necessarily rest in some form of words, and can only be made certain by giving certainty to these words in the connection in which they are used. To this end the law requires that they be certain and clear so that "the estate shall not rest upon the mere opinion of those whose duty it is to construe them as to the state of mind of the dead by whom they were written. To secure this certainty is the office of all legal rules of construction and they must control us in the examination of this, will.

III. It is not denied that, the words of the second clause are clear, conventional and unambiguous, and sufficient of and by themselves to vest in the devisee an absolute title in fee simple to the lands described, and this affords the standpoint from which we must proceed to inquire whether, in the subsequent clauses of the will, that estate is diminished to an estate for. life by language equally clear and unambiguous. It is suggested by counsel that the intention of the testator might have been made more apparent by the use of the obsolete words of inheritance or some other words of volume or permanence. It is a sufficient answer to this that he employed the simple words which the law requires for that purpose. He segregated his land from all other items of his estate to which his will might attach and gave it to his wife when she should become his widow. Evidently realizing that he might during his lifetime acquire, other lands he included all such other lands in his devise. In this way, with painstaking care he divided the estate which he might leave into two distinct parts, one of which in that clause he designated as “real estate” and “realty. ’ ’ In the third clause he designated the remainder of the estate of which he might die possessed.“all the rest and residue of my property of whatsoever kind that may remain after payment of my debts as hereinbefore requested. ’ ’

Down to this point he had not only divided his estate into two parts, the first embracing his real estate and the second his personalty, charged with the payment of her debts, but had given her the first without any reference to the purpose of the gift, and the second “for her use and benefit.” There is nothing to indicate any thought to limit the absolute estate in the land which he had given her.

The fourth clause gives her the absolute right of disposition of the land so that she might sell and convey it at her own will, without any attempt to control or direct the disposition of the proceeds. While an absolute power of disposition may sometimes have the effect to raise a fee upon a devise which, without ,the power, would have only, been effectual to carry a life estate, this does not follow in any case where the devise is limited by its terms to an estate for the life of the devisee. The power of disposition must then be exercised in the life time of the devisee; if not, the remainder will pass upon his death to the next taker by devise or inheritance. [Underhill on Wills, see. 686.] Such a power of disposition will never have the effect to reduce a fee to an estate for life, for the reason that it is simply an incident to the fee. This question was fully examined by us in Mildleton v. Dudding, supra, where the power was not created by mere redundancy of language in the writing of the will,-but was deliberately added by a codicil. We held in effect that it was mere superfluity. It cannot enlarge the fee of which it is a mere incident and for the same reason cannot cut it down. The same may be said of the limited power of disposition by will given in the sixth clause. If it was intended to apply to the land, of which we see no evidence in its terms, it is inoperative because it is a mere incident of the fee already devised.

It is not, nor can it be, questioned that the third clause' of the will operated upon personal property alone.. It was given by the description of all the “rest and residue of my property” because the realty had already been disposed of. It was given “for her use and benefit” because the testator anticipated that the childless woman might not desire, after his death, to occupy the family home alone, and would desire to supplement its rents and profits with the proceeds of the personalty. He fully explained this in the fifth clause by giving her the fullest power to dispose of it for her use, “support, protection, comfort and enjoyment.” That this supplements and explains the terms of the third clause, and applies exclusively to personalty, is evident. There is nothing in the words which exhibits any intention or thought to cut down the fee simple title already devised to his wife. From the standpoint of this conclusion we will consider the remaining provisions.

IV. The defendants’ answer seems to us to have been written in fear of disclosing their title. It admits that defendants are heirs of Azel R. Craven, deceased, and states that they are the owners of an undivided interest in the land, hut does not commit them to an opinion upon the nature of their title — whether by devise or inheritance. It does state, however, that Gabriella Craven never had any inheritable interest in the land. We have already come to the conclusion, and held in the preceding paragraphs of this opinion, that the fee simple estate devised in the second clause of the will was not cut down to a life estate by anything contained in the succeeding clauses up to and including the sixth. It still remains to determine whether the disposition made in the seventh clause had that effect by virtue of the provisions of Section 579, Revised Statutes 1909, by which we must judge this- title. That section extends its protection over the fee simple title in all cases where “no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given. ’ ’ Having already determined that the will contains nothing to negative the intention which this section imputes to the testator to devise an absolute estate in fee simple by the terms of the second clause, it remains to consider whether by the seventh clause he made a further devise of the same premises to his brothers and sisters and the heirs of their bodies. If he did not, Gabriella died seized in fee simple of the land. If he did, such devisees take under the terms of the will, and not by inheritance.

The seventh clause is as follows, italics being ours:

“7th. It is my will that all that portion of my estate remaining undisposed of as hereinbefore authorized and directed be divided in eight equal shares and that one share go to each of my brothers and sisters and in case of their death or deaths then to the heirs of their respective bodies begotten.”

We do not-think that this amounts to a further devise of the same premises so carefully described and given in fee in'the second clause. The entire tenor of the will is inconsistent with this construction for the following- reasons: First, the land was carefully segregated from the remaining estate and given to her by special devise separate from any other portion of the estate; second, it was treated, throughout the will as having been finally disposed of and the personalty was called the “residue,” or that which remained after the disposition of the realty; third, the power of sale of the realty contained in the fourth clause was accompanied by no direction as to the use or'disposal of the proceeds which would, had she sold it, have been her own absolute property; and, fourth, clause seven does not treat the land as a part of the fund to be divided among the brothers and sisters of the testator, but treats the remaining portion of his estate as a 'single fund to be divided, as in case of money, by a single process. There is nothing in the entire instrument. indicating that the testator intended that the fee in the land which he had disposed of to the wife should be reduced to a life estate, or that the' land or its 'proceeds should go to his collateral relatives at her death. The success with which he avoided such an expression is one of the most interesting features of this will when we consider the simplicity of the language by which that purpose could be lawfully accomplished.

We do not think the title to lands should be made to depend upon what the courts may surmise might have been or was in the mind of a testator. The law has placed at his disposal simple words by which he may dispose of the land or any interest therein by will. In this cáse he has used them for -the laudable purpose of conferring upon his widow the absolute title in this land. Had he desired to limit it to a less estate he could have done so subject to the-limitations imposed by her marital rights by words as plain as those by which he conferred the fee, but this it seems to us he has declined to do, and we are not' at liberty to do it for him. On the other hand it is our duty to maintain the simplicity and certainty of expression' by' which the law guards such titles. •

The judgment of the Circuit Court for Ray County is reversed'and the cause remanded for further proceedings in accordance with this opinion.

' Small, G., concurs; Raglancl,. G., not sitting.

PER CURIAM:

The opinion of Brown, C., is adopted as the opinion of Court in Bane.

All concur except Williamson and Goode, JJ., who dissent; Blair, J., not sitting.


source: Caselaw Access Project

author:
GRAVES, J.
      PER CURIAM : WOODSON, J. BLAIR, J.

license: Public Domain

text:
    WILLIAM T. CLINKENBEARD et al., Appellants, v. HENRY REINERT et al.
    In Banc,
    November 20, 1920.
    1. DOG BITE: Pleading: Variance. Where the petition charges that plaintiffs’ child was bitten by a known vicious dog, then owned, kept and harbored by defendants, and that the child died from the effect of such bites, but does not aver that the dog was rabid or that the child died from rabies, and the proof shows that the dog was rabid and that the child died from rabies, there is not a fatal variance between the pleading and proof, for the child did die from the bite of a vicious dog. < ■

    2. -: Known Viciousness: Liability of Owner: Negligence. If a person keeps unrestrained a vicious dog after he has knowledge of its vicious and dangerous propensities, he is liable for damages to others resulting from the acts of such dog in the exercise of the vicious propensities of which he had knowledge, without proof of negligence in the manner of keeping it, for the keeping of such dog at all is wrongful. And proof that the dog, belonging to defendants, was kept tied up, except at nights, when it was loosed as a watch dog, is sufficient to show they had knowledge of the vicious disposition of -the dog, and to render them liable in damages for the death of a child from wounds inflicted by the dog’s bite.

      3. -: Known Viciousness: Unknown Rabies. The gist of the action for damages resulting from the bite of a vicious dog is the keeping of the dog after knowledge of its dangerous and vicious propensities come to the owner, keeper or harborer. Such a dog is a nuisance, and the keeping of it at all is wrongful; and it is the duty of its keeper or the owner, for the protection of the public, to kill or safely restrain it. And where defendants, long before their dog bit plaintiffs’ child, knew its .vicious and dangerous propensities, they are liable for the child’s death from rabies, although the dog suddenly became mad without their knowledge, and, being unrestrained, bit the child at a point some distance from the premises where it was usually kept as a watch dog. Knowing the vicious propensities of the dog, defendants should have killed it or kept it safely restrained, and after they acquired such knowledge they at all times kept it at their peril, and are. • liable for any increased menace to the public arising from the dog’s subsequent affliction with rabies.
    4. —:-: -: -: Liability Under Ordinance and At Common Law. Both at common law and under a city ordinance which prohibited any person from owning, keeping or harboring in the city any dog “which is vicious or dangerous,” the keeping of a vicious dog, with knowledge of its vicious and dangerous propensities, renders 'the owner or keeper liable for injuries thereafter inflicted by its bite, including the increased menace resulting from rabies, although such owner or keeper did not know it was afflicted with rabies.

      Held, by BLAIR, J., concurring, that the language of the' ordi- ' nance is absolute, and for all injuries resulting from keeping a vicious or dangerous dog the owner or keeper is liable in damages; but expressing no opinion as to the liability at common law for injuries inflicted by a mad dog, whose viciousness was known, but whose affliction with rabies was not k-nown.

      Held, by WOODSON, J., first, that the evidence conclusively sh.owing that the child would not have died from the bite had the dog not been afflicted with rabies, and that defendants had no knowledge that the dog was so afflicted at the time or before it bit the child, they are not guilty of negligence causing or contributing to the injuries which resulted in the child’s death, and therefore are not liable at common law for,, damages; second, that if defendants h^d complied with the ordinance which prohibited all persons from keeping a vicious or dangerous dog, no injury could have been inflicted upon the child by the dog, whether mad or only vicious, and therefore deféndants are liable under the count based on a violation of the ordinance.

      Appeal from Buchanan Circuit Court. — Hon. L. A. Vories, Judge.
    Reversed and remanded.

      J. W. McKnight and Mytton S Parkinson for appellants.
    (1.) When it is established that a dog is of a vicious or mischievous nature- and that the person owning it or keeping it has actual or constructive knowledge of that fact, the owner keeps it at his peril, and is chargeable for any failure to. so keep it that it cannot do any damage to any person who, without essential fault, is injured by it. 3 C. J. 98; Speckmann v. Kreig, 79 Mo. App. 376; O’Neill v. Blase, 94 Mo. App. 648; Merritt v. Matchett, 135 Mo. App. 176; Holt v. Meyers, 47 Ind. 118; Perotta v. Picciano, 175 N. Y. Supp. 16. (2) The fact that the dog is kept as a watchdog and is kept tied in the day and turned loose at night is notice to the mhster that he is dangerous. Speckmann v. Kreig, 79 Mo. App. 376; Brice -v. Bauer, 108 N. Y. Supp. 428; Hanke v. Fredericks, 140 N. Y. 224. (3) The owner or keeper of a dog of known vicious propensity, in violation of a statute or ordinance, is liable for injury caused by the dog being at liberty while afflicted with rabies, although he did not know or have reason to believe that the dog was mad. -Elliott v. Herz, 29' Mich. 204; Yan Etten v. Noyes, 112 N. Y. Supp-. 888; Jenkinson v. Cog-gins, 81 N. W. 974; Legault v. Malaeker, 163 N. W. 478.

      W. N. Linn and Lohn E. Heffley for respondents.
    (1) Appellants’ petition contained two counts; one charging common law negligence, and the other charging negligence under the revised ordinances of the city. Both counts charge the death of appellants’ child by being bitten by a vicious dog, alleged to have been owned and kept by respondents. Tbe evidence shows conclusively that the child died from hydrophobia, by being bitten by a dog afflicted with rabies — a fatal variance between the allegations contained in the petition and the proof. It is a well settled law that plaintiff cannot sue upon one cause of-action and reqover upon another. Madden v. Ry. Co., 167 Mo. 143; Gibeline v. Smith, 106 Mo. App. 545; Henry County v. Citizen’s Bank of Windsor, 208 Mo. 209. (2) Very few cases of this kind has been tried in the courts of this country, and none in this State. It has been conclusively held that the ov^ner or keeper of a dog afflicted with rabies is not liable for the acts of the rabid dog (with the possible exception that the owner knew, or had means- of knowledge of the dog’s rabid condition, and negligently failed to restrain or destroy it). State ex rel. v. Ellison, 271 Mo. 463; Legault' v. Malacker, Í66 Wis. 58; Elliot v. Herz, 29 Mich. 202; Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888.
   GRAVES, J.

Action by plaintiffs (husband and wife) for the death of their daughter of the age of about six years. The child was bitten by a dog on December 17, 1913, and died January 25, 1914, from rabies. The petition is in two counts. The first charges common law negligence in that “the defendants negligently kept and owned and harbored on their premises a dog of' mischievous and vicious propensities that was disposed to bite or attack or injure a person, all of which facts were well known to defendants.”

The second count is based upon ordinance negli- ' gence, and specifically pleads two sections of ordinances of the City of St. Joseph relating to owning, keeping or harboring vicious dogs and other vicious animals, and defining' the terms “keeping and harboring” as used in such ordinances.

Upon a trial, the court upon the conclusion of the evidence for the plaintiffs, gave a peremptory instruction to the jury to find the issues for the defendants, and thereupon plaintiffs took an involuntary nonsuit. Without avail the plaintiffs moved to set aside their involuntary nonsuit, and-the case is here upon their appeal.

The evidence tends to show the vicious character of the dog, and that defendants had knowledge of the vicious character of the dog. It further tends to show that the child of plaintiffs was bitten by this dog of the defendants at a point some distance from the premises upon which the dog was usually kept as a watch dog. Further the testimony of witnesses shows that upon the day this child, and a young man was bitten by this dog, the animal was mad, or suffering from rabies. The head of the dog was examined by Dr. Logan, who does the “bacteriology and chemistry work for the Board of Health” of the City of St. Joseph, and" the doctor says that the dog had rabies. There is no evidence showing-that defendants knew that the dog was afflicted with rabies. The evidence shows that the little girl died of rabies, and not from the physical effects of the wounds inflicted by the dog, excluding the virus imparted by reason of the rabid condition of the dog.

Defendants urge that the peremptory instruction was proper for two reasons: (1) that the petition charges that the child died from wounds inflicted by a vicious dog, whereas the proof shows that she died of rabies, and (2) that there was no proof that defendants had any knowledge of the dog being afflicted with rabies. From this it will be observed that the issues upon appeal are narrow.

I. We are not impressed with the contention of the respondent to the effect that plaintiffs sued upon one cause of action, and proved another. In other words, that there was a fatal variance between the pleadings and proof. We think the real question is the sufficiency of the proof. It is true that the petition only charges that plaintiffs’ child was bitten by a known vicions dog, then owned, kept and harbored by defendants. It does not aver that the dog was rabid, or that the child died from rabies. It does aver that the child died from the effects of bites inflicted by defendants ’ known vicious dog. The child did so die. But for the bite of the vicious animal, the child might be living now. So that we rule that it is not so much a question of. fatal variance between the petition and the proof, but rather a question of the sufficiency of the proof, as measured by the law on the facts shown. It is true that we universally rule that one cannot sue upon one cause of action, and recover upon another and different cause of action, as shown by his facts. To such cases we are cited by respondent, but they have no application here. The petition charged that this child came to her death by a dog bite inflicted by a vicious dog belonging to defendants. The proof so shows. Whether the' fact that the dog was rabid (under the facts shown) defeats plaintiff’s case, we leave for further discussion.

II. The proof shows that defendants had knowledge of the vicious disposition of their dog. He was kept tied up, except at nights, when he ’was loosened as a watch dog. Had this child died from wounds inflicted by this dog (excluding the question of rabies) there would be no question of liability. In 3 Corpus Juris, page 97, the rule is thus stated:

“At common law, the owner of a dog is not liable for injuries caused by it, unless it is vicious and notice of that fact is brought home to him. But when it is once established.that the dog is of a vicious or mischievious nature, ánd that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of- an animal naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary.”

To like is 2 Am. & Eng. Eney. Law. (2 Ed.), page 366, whereat it is said:

“The owner of a vicious dog, knowing of his dangerous propensities, is hound to keep him secure at his peril, and if any one, without negligence on his part, is injured by the animal, the owner will be liable for all the damages sustained.”

And on page 367 et seq., it is added:

‘ ‘ The gist of the action is the keeping of the animal with knowledge of its vicious propensities.
“A Prima-Facie Liability. — So that one who keeps a dangerous dog with knowledge of its vicious propensities incurs a prima-facie liability for any injury caused by it.
“And proof of negligence on the part of the defendant is not necessary, as it will be presumed.”

And 1 Ruling Case Law, page 1089, says:

“The owner of an animal not naturally vicious is not answerable for an injury done by it when in a place where it had a right to be, unless it was in fact, and to his knowledge, vicious; If, being theretofore of a peaceable disposition, it suddenly and unexpectedly, while in charge of its owner or his servants, inflicts injury on another, neither, if at that time in the exercise of due care, is answerable. But if one knowingly keeps a vicious or dangerous animal, which is accustomed to attack and injure mankind, he is prima-facie liable for injuries done by it, without proof of negligence as to the manner of keeping it. The negligence on which the liability is founded is keeping such an animal with knowledge of its propensities. Thus it is evident that as respects the liability of the owner there is no distinction between the case of an animal which breaks through the tameness of its nature, and is fierce, and is known by its owners to be so, and one which is ferae naturae. But while the ancient rule as generally found stated is that the gist of an action for injuries inflicted by a ferocious animal is keeping it, with knowledge of its vicious propensities, negligence or the want of negligence being deemed immaterial, to some courts a more accurate statement of the true principle governing the owner’s legal responsibility seems to be that the gist of the action is the failure to keep such animals securely.”

We are cited to no dog case from this court, and have found none of value here. However, our Courts of Appeals have offer' spoken upon the subject. Among those decisions are: Speckmann v. Kreig, 79 Mo. App. 376; O’Neill v. Blase, 94 Mo. App. 648, and Merritt v. Matchett, 135 Mo. App. 176. The O’Neill case, supra, is not really a dog case, but the rule which applies to vicious dogs applied alike to other vicious animals. In the Speckmann case, supra (79 Mo. App. l. c. 381), Bland, P. J., said:

“The contention of appellant is that the basis of the action is negligence, and that his refused instructions should have been given. If it was incumbent on the plaintiff to entitle him to recover to show that defendant negligently sent him to the bam then the appellant’s contention is undoubtedly correct. The evidence leaves no room for the shadow of a doubt that defendant knew of the vicious propensity of the dog. The fact that a dog is kept as a watch dog (as this one was) and is kept tied in the day and turned loose at night, is notice to the master that he is dangerous. . [Brice v. Bauer, 2 Am. St. 458; Brice v. Bauer, 108 N. Y. 428; Montgomery v. Koesler, 35 La, Ann. 1091; Good v. Martin, 57 Md. 606.] Defendant’s own testimony shows that he knew the dog was. dangerous and that he knew or had good, reason to believé the dog was loose at the time the plaintiff went' into the yard; indeed scienter by defendant of the vicious propensity of the dog is not controverted. The law is, the dog being a vicious one, of which propensity the defendant had knowledge, he kept it at his peril. [Strauss v. Lieff, 46 Am. St. 122; Conway v. Grant, 30 Am. St. 145; Sylvester v. Maag, 35 Am. St. 874; Wolff v. Chalker, 81 Am. Dec. 175; McCaskill v. Elliott, 53 Am. Dec. 706; Arnold v. Morton, 25 Conn. 92; Smith v. Palah, 2 Str. 1264.] And the gist of the action for injury by the dog, after knowledge of its vicious propensities had been acquired by defendant, is not negligence in the manner of keeping the dog, but is for keeping it at all. The duty of the defendant when he acquired knowledge of the ferocious. disposition of his dog ‘was to hang it,’ not to keep it, at the risk of the lives and limbs of children and of adults who might lawfully come upon or pass by his premises at night. [May v. Burdett, 9 Q. B. 10; Jones v. Perry, 2 Esp. 482; Mason v. Keeling, 12 Mod. 332; Wheeler v. Brant, 23 Barb. 324; Lynch v. McNally, 73 N. Y. 347; Muller v. McKesson, 73 N. Y. 195, and cases cited.] ‘Such an animal is a nuisance, and the keeping of it after notice of its ferocious propensity is so wrongful that the owner is chargeable for any neglect to keep it with such care that it can not do any damage to any person who without essential fault is injured by it.’ [Mann v. Reed, 4 Allen, 433; How v. McNamara, 106 Mass. 281; Fish v. Skeet, 21 Barb. 333; 2 Wood on Nuisances, sec. 776; Massel v. Bowman, 62 Ia. 57; Mauer v. Wecandid, 81 Pa. St. 243.] Under the conceded facts there was no question of negligence or of contributory negligence in the case. The vicious propensity of the dog is so well established, of which the defendant had knowledge, that under the authorities herein cited, and under his duty to his fellowman as a member of society, he was bound to so restrain his dog as to prevent injury being inflicted by it upon any one, without essential fault contributing thereto.”

The other cases cite and approve this case. So that we rule that if a person keeps unrestricted a vicious dog after he has knowledge of that fact, he is liable for the damages resulting from the acts of such animal in the exercise of the vicious propensities of which the owner or keeper or harborer had knowledge. Plaintiffs made a case for the jury, unless the fact that the vicious dog also had rabies changes the case. Of this question, nest.

III.. From the authorities (and a list of them is cited in 1 R. L. C. supra) the gist of the action is the keeping, of a vicious dog, after knowledge of his vicious propensities. The duty which the owner then owes to humanity is to kill it. Such was the rule as announced by Bland, P. J., in Speckmann’s case, supra. But the question here is whether or not the rabies in this dog (not known by defendants) changes this rule? We start with the proposition that when the owners of this dog were advised of his propensity to attack people, then under the case law, it was their duty either to kill the animal, or at least (according to some cases) to keep 'him securely confined so that he could not injure people. ' This duty was an absolute one, and one which the owner owed to all, including this child, and her parents. A breach of that duty, which results in injury, carries with it the resulting damages. On the vital point in this case we are cited to some three cases, first among them being Elliott v. Herz, 29 Mich. 202. The opinion there • was by Cooley, J., and concurred in. by Campbell, J.; Craves, C. J., dissented in an opinion filed, and Christiancy, J., did not sit. So the opinion is by two of the then four members of that court. In that opinion Judge Cooley does, use this language:

“The injury from the bite of a rabid dog must be classed with those from inevitable accident, which the law always leaves to rest where they chance to fall, because, as no one was in fault, there is no basis for an assessment of damages against any one.”

The dog in question was mad and killed and injured some sheep. The action was under a Michigan statute, which made the owner of a dog liable without proof that such owner had knowledge of the vicious propensities of the dog. Under that statute the learned judge writing the majority opinion said that the statute did not cover the madness of the dog. The dissenting opinion holds to the contrary. The whole case turns upon the statute and the construction to be placed upon it. There was nothing in the case to show that there was a common law duty to either kill or restrain this particular dog for months prior to the injury and the madness of the dog, as we have in this case. In this case the knowledge of the vicious propensities of the dog created a legal duty to kill the animal, or at least to keep him safely restrained. So the real question in this case was not before Judge Cooley.

The next ease relied upon by defendants is Legault v. Malacker, 166 Wis. 58. This was an action by the parents for the death of child, which died from the bite of a mad dog. The action was under a statute, which the court concedes to be very similar to the statute in the Michigan case, supra. The opinion is by a divided court, and there is a vigorous dissent. The majority opinion rests upon the opinion of Cooley, J., in the Michigan case and the minority opinion is bottomed in a way upon the opinion of Graves, C. J., in the Michigan case, supra. The statute permitted recovery without proof of knowledge upon the part of the owner that the dog was vicious. What we have said above about the Michigan case, as compared with the case at bar, applies with full force to this ease from Wisconsin.- It does not reach the case we have here. In it there was no evidence showing a duty upon the part of the owner of the dog to kill it, or at least restrain it from running at large, long prior to the appearance of rabies. So this ease lends but little light.

The next case relied upon is that of Van Etten v. Noyes, 112 N. Y. Supp. 888. In reviewing the evidence the court specifically holds that there was not sufficient evidence to show that the- owner had knowledge of vicious propensities upon the part of her dog. The court further indicates clearly that the dog became suddenly mad, and whilst thus affected with rabies bit plaintiff’s cow. No pretense that defendant either knew of the vicious character of the dog prior to the date of its affliction with rabies, or that the owner knew of the rabid condition of the dog prior to the injury to the cow. So this case sheds no more light upon our case, and the point we have for decision, than do the other two cases. This disposes of' the cases relied upon by respondent.

Before going to the real point in this case we want to say that where a dog, not theretofore possessed of vicious propensities, suddenly becomes mad, or affected with rabies, and the owner of such dog has no knowledge of the affliction in time to kill or restrain the animal, prior to the infliction of an injury to a person or other animals by such rabid dog, there is no liability upon the part of the owner. This is the universal case law. It is common knowledge that mad dogs will bite and attack persons and other animals, but if the owner does not know that his dog is rabid, he is not at fault for not killing or restraining him, provided he had not theretofore been possessed of vicious propensities, to the owner’s knowledge. But such is not the status of the case before us, and to the real point in this case we now come.

In the instant case the owners were, long before the incident which brought about the horrible and untimely death of this little girl, fully advised of the vicious propénsities of the dog. When so advised it became their absolute duty, for the protection of the public, to either kill or safely restrain their dog. A failure to do one or the other rendered them liable. The trend of our Court of Appeals is to require the killing of the vicious dog, rather than his restraint. Much authority elsewhere is to the same effect, and we are disposed to, and do, adopt the more rigid rule of our Court of Appeals. A vicious dog is a nuisance, and should be removed, as you would remove the venomous rattlesnake — by death. Of all animals the dog is the one most prone to rabies. This the defendants knew, because a matter of common knowledge. We shall not speculate upon the theory that a vicious dog in health would he more prone toward vicious acts when afflicted with rabies. But what we do say is, that defendants, had they performed the duty which they owed to the public and to this child and her parents, as a part and portion of that public, would have hilled the dog months prior to this accident. Knowings its vicious propensities they hept the dog at their own peril and not at the peril of the public. The dog was a menace to the public prior to his affliction with rabies. The affliction increased this menace, but defendants hept him at their peril, and should be made to respond for such damages as he did, although rabies intervened. The dog with growing age might have become more vicious, yet this would not excuse defendants who were prolonging his life by their failure to perform the duty which they owed to the public. As they, from the time they first acquired knowledge of the vicious character of the dog, were beeping him at their peril. Any change in the condition of the dog, whether by increased viciousness in the normal dog, or frensy of the afflicted dog, was but an increase in their peril, brought about by their own wrongful act in the first instance, i. e. their failure to hill the vicious dog.

This is a case (on the peculiar facts) of first impression in this court., and elsewhere, so far as we have been able to find. This, because the cases discussing liability for bites from a rabid dog, so far as we read them, do not have in them the fixed duty of the master to have disposed of the dog long prior to the appearance of the rabies.

Plaintiffs made out a case for the jury under both counts of their petition. Our. discussion has been along the line of the common law count, but the liability is not less plain under the ordinances. The failure to perform a duty to the public is the crux of each count. The judgment is reversed and the cause remanded.

PER CURIAM :

The foregoing opinion of Craves, J., in Division No. One, is adopted by Court in Banc as the opinion of said court.

All concur; Blair and Wood-son, JJ., in separate opinions.

WOODSON, J.

(concurring in part and dissenting in part). — I concur as to that part of the opinion based upon the second count of the petition, but I am of the opinion that no liability is shown upon the first' count. My reasons for so stating are: The evidence conclusively shows that the deceased child would not have died from the effects of the bite had the dog not been afflicted with rabies, and the evidence also conclusively shows that the defendant had no notice of knowledge whatever that the dog had rabies before, or at the time, it bit the child. That being true he was guilty of no negligence which caused or contributed to the injury which caused the death of the child, and therefore he is not liable in damages for the death that ensued therefrom.

I concur in that part of the opinion which is based upon the second count of the opinion, for the reason that had the ordinance mentioned therein been complied with by the defendant, no injury could have been inflicted upon the child by the dog, whether it had been mad or sane. Under the authority of Sluder v. Transit Co., 189 Mo. 107, and Jackson v. Railway Co., 157 Mo. 621, and cases cited, the validity of said ordinance cannot be, at this late date, questioned.

BLAIR, J.

(concurring). — The authorities cited in the opinion state the common law applying to one who keeps a “ dangerous dog, with knowledge of his vicious propensities.” This rule might not extend beyond the reasons which apparently give rise to it. There are decisions which proceed upon arguments which tend to support such a view. In this ease a city ordinance was in force which prohibited any person from owning, keeping or harboring in the city any ‘ ‘ dog . . . wolf, fox or other domestic or wild animal which is vicious or dangerous.” This description defines the classes of animals to be affected, but the prohibition against owning, keeping or harboring animals within the classes defined is absolute. The evidence tends to show defendant’s dog fell within the ordinance. In keeping him at all defendants violated, this ordinance. The prohibition of the ordinance is not qualified by the language used to describe the classes prohibited from being kept in the city. In my opinion the absolute requirement of the ordinance was intended to mean what it says, and thereby provide against all damages which might be done by animals of the designated classes. The ordinance differs from the statutes, considered in Elliott v. Herz, 29 Mich. 202, and Legault v. Malacker, 166 Wis. 58. Those statutes were held to be designed to obviate the necessity for proving scienter. That holding is not applicable to this ordinance. For these reasons, I concur in the result of the opinion in this case.

Woodson, Jconcurs.