author: ELDER, J.

text:
    M. L. GUTHRIE, Administrator of Estate of Sallie E. Crews, and CLAUDIUS E. CHEATHAM, Appellants, v. ROBERT N. CREWS, and ROBERT N. CREWS, Executor of Estate of Robert A. Crews.
    Division One,
    March 5, 1921.
    1. WILL: Construction: Intention. The intention of the testator is to he gathered from the whole instrument, and must be fully effectuated if not violative of some established rule of law.

      .2 -: -: Life Estate: Power of Sale. By his will, whereof he made his wife and another executors, testator, after providing for the payment of his debts, devised all his property, real, personal and mixed, to his wife for and during her natural life for her support and maintenance, including therein traveling expenses without limit and a reasonable amount that she might give to church or charities, and for such purposes gave her or the other executor or both power to sell and convey any or all of his real estate; and provided that at her death his estate should be sold by his executor as fast as prices might warrant, and the proceeds be divided among certain named persons. In the lifetime of the wife all the real estate was sold under the power, and part of the proceeds thereof, as well as all the income therefrom and all the personalty, were used in the support and maintenance of the wife. Held, under this will the exercise of the power of sale did not convert her life estate in the proceeds of sale of the property into an estate in fee, but whatever remained of the property at her death was governed by and should be distributed according to the' testator’s will.
    3.-: -: Life Tenant’s Eight to Income. Under the foregoing will the life tenant was entitled to the entire income from the estate during her life for her support and maintenance, and having received and consumed it, neither her administrator nor her heirs are entitled to be reimbursed therefor out of the corpus of the estate.
    4. -: —■-: -: Income Returned to Estate. Where the life tenant under the foregoing will had received part of the estate for her support, maintenance and traveling expenses and returned it to her co-executor who, with her knowledge and consent, returned it to the estate, it became part of the estate and passed to the legatees under the will at her death as against her administrator and heirs.
    5. -: Executor’s Commissions: Division Thereof. Where two persons are made executors of a will and both qualify, but one does nearly all the work of .oking after the estate and by reason thereof they agree that he shall, and he does, receive most of the commissions due the executors, such agreement is binding, and neither the administrator nor the heirs of the other executor after his death can recover any of such commissions.
    Appeal from Callaway Circuit Court. — lion. David II. Harris, Judge.
    AFFIRMED.

      B. A. Campbell and J. R. Baker for appellants; O. W. Mansion of counsel.
    (1) The will of a husband giving a life estate to the wife with remainder over to legatees named in the will, but giving a wife power to sell and dispose of the property, creates in her a fee simple estate if she exercises the power. Grace v. Perry, 197 Mo. 563; Simmons v. Cabanne-, 177 Mo. 336; Gannon v. Pauk, 200 Mo. 75; Russell v. Eubanks, 84 Mo. 83; Association v. Fueller, 182 Mo. 93. (2) A power of disposition of the fee added to a life estate is not repugnant to the life estate or to the remainder' over. If not exercised, it leaves both' estates unaffected by it. If exercised, it defeats the remainder in the property disposed of and the remaindermen and heirs of testator will take nothing. See cases above. (3) Where, under a husband’s will, a wife takes a life estate in certain property with the added power of disposition and she exercises that power, then not only is the right of remainderman in the property defeated and cut off, but the proceeds of such sale becomes her absolute property and pass, upon her death, to her. heirs only. Association v. Fueller, 182: Mo. 110; Ellis v. Flanningan, 279 Ill. 92; Papin v. Piednoir, 205 Mo. 521. (4) Courts will endeavor to dispose of property according to the true intention of a testator. What his intention is will be determined by reading the will as a whole, and when this true intention of testator is so found all technical rules must give way thereto. This is well settled law in Missouri as declared by our courts in every case where a will was before it. (5) The interest on money forming a part of a life estate belongs exclusively to the life tenant and the life tenant is entitled to all rents accrued from the property during the continuance of such estate and upon the death of such a life tenant passed to his or her legal representatives. This rule applies to rents and interest accrued prior to the death of the life tenant as well as to rents and interest* collected. 16 Oye. pp. 621, 622, and 623; Edgar v. Emerson, 235 Mo. 5521.

      R.'D. Rogers, Nidi T. Gave, McRaine, Glarli & Rollins for respondent.
    (1) Robert A. Crews by bis will left his estate to his wife for her support and maintenance during- her lifetime, and provided that at the death of the wife the estate “shall be sold as fast as prices may warrant” by the executor, and the proceeds be divided among the devisees named in said will. Upon the death of Sallie E. Crews the estate did not descend to her heirs, the appellant herein, but the unexpended remainder passed according to the terms of the will of Robert A. Crews. Sec. 538, R. S. 1909'; Stewart v. Jones, 219 Mo. 614; Redmond v. Barger, 118 Mo. 568; Lewis v. Pittman, 101 Mo. 281; Monro v. Collins, 96 Mo. 33; Harbison, Admr. v. James, 90 Mo. 411; Schneider v. Kloepple, 270 Mo. 395; Evans v. Folks, 135 Mo. 397; McMillan v. Farrow, 141 Mo. 55; Stiof v. Seibert, 128 Iowa, 746, ;-6 L. R. A. (N. S.) 1186; Middleton v. Budding, 183 S. W. 443; Trigg v. Trigg, 192 S. W. 1011; Rickets v. Peoples’ Bank, 196 S. W. 26; Gibson v. Gibson, 238 Mo. 490; Threlkeld v. Threlkeld, 238 Mo. 459; Priest v. McFarlane, 262! Mo. 229. (2) The rents collected from the- property left by Robert A. Crews during the lifetime of Mrs. Crews were expended by her for her support and maintenance. The estate of Robert A. Crews cannot, therefore, after the death of the life tenant be charged by Mrs. Crews’s heirs with the amount of rents and profits derived by her during her lifetime from the estate, on the theory that her support and maintenance should be taken from the corpus of the estate. (3) The respondent cannot be charged with one-half of the amount of the executor’s fees collected from the estate of Robert A. Crews. He was co-executor with Mrs. Crews, who was executrix. He looked after all tlie business of the estate and Mrs. Crews gave Mm her portion of the fees. This was an absolute cgift. Under the petition this was not before the court for decision. Newham v. Kenton, 79 Mo. 382.
   ELDER, J.

This is primarily a suit to determine the proper disposition of certain moneys derived from the sale of real estate belonging to the estate of Robert A. Crews, deceased, of which his widow, Sallie E. Crews, and defendant, Robert N. Crews, were executors, together with interest received thereon by said executors and rents collected by them prior to the sale of such real estate. The question of an accounting by defendant Robert N. Crews for commissions received by him as one of the executors of the estate and for a small sum received by him from Sallie E. Crews during her illness are also incidentally presented. The trial court found the issues in favor of defendants and dismissed plaintiffs’ bill. From this finding and judgment plaintiffs appeal.

Robert A,. Crews died in the early part of the year 1903, childless and without any lineal- decendants, and leaving as his heirs his widow, Sallie E. Crews, and a number of collateral relatives. At the time of his death and at all times prior thereto he resided in Callaway County, Missouri. He was married in 1868 and from that time on accumulated considerable property, both real and personal, of which he died possessed, the most valuable part thereof consisting of real estate in the city of El Paso, Texas. By a will, which was admitted to probate in the Probate Court of Callaway County, Missouri, and February 20,1903, he disposed of his entire estate and appointed his widow, Sallie E. Crews, and defendant Robert N. Crews executors thereof. This will is as follows:

“Know All Men by these Presents, That I Robert A. Crews, of the City of Fulton, County of Cal-laway, Mo., do make and publish this my last will and testament.
“1. After the payment of all just debts I will and devise to my wife, Sallie E. Crews, all my property, real and personal and mixed for and during her natural life for her support and maintenance, and for such purposes she or Robt. N. Crews, executrix and executor or both hereafter mentioned, are hereby authorized and empowered to sell any or all of my real estate, and said deed or deeds shall convey as g’ood a title as I may have in same. The words support and maintenance shall be construed to include traveling expenses without limit and a reasonable amount that she may give to church or charities. At her death, my estate shall be sold as fast as prices may warrant by my executor without him giving bond. And the proceeds to be divided as follows, to-wit:
“One-fifth to Claudius E. Cheatham, of Henry County, Missouri;
“One-fifth to John T. Crews, of Audrain County,Mo.;
“One-fifth to the children of my deceased brother, N. R. Crews, share and share alike;
“To Sallie Jane (Pink) Satterfield, one twenty-fifth;
“To Patrick E. Crews, the remainder of my estate.
“If my estate exceeds fifteen thousand dollars, then in that case, I give and bequeath and convey to the City of Pulton (if not sold) all that part of the west half of section sixteen, township forty-seven and range nine, lying and being south and west of Stinson Creek, for the use of a public park under the name of ‘R. A. Crews Park.’ If said city refuse to maintain said park, .the title shall be void and the proceeds arising from a sale shall be divided in same proportion as the property hereinbefore mentioned, that I have named as my heirs.
“The city shall have no authority or power to sell the same or cause it to be sold and conveyed to anyone whomsoever, but shall be a public park until conditions herein specified shall be broken and title forfeited. I want a tombstone to cost not over one thousand dollars ($1,000) to be erected over my and my wife’s graves, said stone shall bear at least the name of my wife and myself, and date of death, when the one who first dies is buried, the other to be buried by side of the other and the tombstone be at head of graves between the two.
“I herein and hereby appoint my wife, Salde E. Crews, and Dr. Robert N. Crews to execute this my last will and testament without bond.
“In regards to the park, fifteen thousand dollars are to go to my heirs, and if a surplus over $15,000 and the park combined, it shall be distributed as the fifteen thousand dollars.
“In witness whereof, I have hereunto set my hand and seal, this twenty-second .day of October, 1902.
“Robt. A. Ceews (Seal)”

Said will' was properly witnessed.

The executors named in the will qualified as such and took charge of the estate, Robert N. Crews largely assuming the management thereof and doing the active work in connection with the administration. While he consulted his co-executor, she relied largely upon his judgment. . The inventory filed by them shows a small amount of cash on hand and in bank, stock in a few corporations, a number of notes, a few domestic animals and. several pieces of real estate in Callaway County, Missouri, and in the city of El Paso, Texas. Prom May 12, 1904, to September 10, 1917, Sallie E. Crews and defendant Robert N. Crews, as executors, filed twelve annual settlements showing the cash received and the assets reduced to cash by them, together with the'disbursements made, with proper vouchers thereof. These settlements disclose, as far as can be determined therefrom, that in all about $11,194.40 was realized from the sale of the real estate in Callaway County and about $20,344.29 from the sale of the El Paso, Texas, real estate; that a total amount of $4,694.96 was collected as rents,' $3-822.83 received as interest, and $1,387.11 charged by the executors as commissions, of which latter amount, according to the testimony of Robert N. Crews, his co-executor, Sallie E. Crews, received $76.95, leaving the amount retained by him for commissions as $1,310.16. These various sums cannot be determined with absolute accuracy for the reason that the settlements do not clearly indicate the sources of all cash received nor does the record or the statement of plaintiffs materially assist. With respect to the $1,310.16 retained by defendant Robert N. Crews as commissions, the .evidence shows that, in view of the fact that he was doing practically all of the work of administration, the same was retained by him with the consent of Mrs. Crews and at her suggestion.

The. settlements filed, coupled with the testimony, also show that aside from the payment of taxes on the real estate, repairs and improvements thereto, and the expenses of administration, practically all of the remaining disbursements made by the executors were made either directly to Sallie E. Crews, the widow aforesaid, or to others for her benefit in payment of her board, support, nursing and medical attention. The seventh annual settlement was filed on June 13, 1910, showing a balance of $472.35. The income derived from the estate was then beginning to prove- insufficient- for paying the taxes and expenses of the El Paso property and maintaining and supporting Mrs. Crews, and it became necessary to sell part of the real estate. No further settlement, was filed until June 9, 1913, by which time practically all of the cash and other personalty of the estate had been exhausted, all of the real estate in Callaway County had been sold by the executors and the only property which then remained in their hands consisted of a balance of $712.13 and the El Paso real estate. The El Paso real estate was thereafter sold by the executors, the greater portion of the proceeds thereof being used for the support and maintenance of Mrs. Crews, who had become an invalid. On September 10, 1917, the twelfth, and last, settlement was filed showing a balance of $17,797.72. Among the receipts shown by this settlement was an item of $80, which., according to the testimony, was an unexpended balance ont of $200 remitted by defendant Robert N. Crews, as executor, to Mrs. Crews for her expenses while she was in Colorado and placed by her in her dress for safe keeping. Mrs. Crews subsequently becoming ill, and her nurse finding the money in the dress, upon instructions from Mrs. Crews the nurse turned the same over to defendant, who deposited it in the bank to the credit of the estate.

Sallie E. Crews died at the age of 75, about the time of the filing of the last settlement, childless and. without any lineal decendants, leaving Claudius E. Cheatham, a brother, and one of the plaintiffs herein, as her only heir at law. She left a will which was duly admitted to probate in the Probate Court of Callaway County, Missouri, disposing of only her household effects, jewelry and clothing, with no residuary clause, and appointing the defendant Robert N. Crews as executor. That portion of said will which may be pertinent hereto is as follows, to-wit.

“I, Sallie E. Crews of the City of Fulton, Calla-way County, Missouri, of lawful age and of sound and disposing mind and memory, though at present in feeble health, do make and declare the following to be my last will and testament.
“Having no child or decendants or father or mother Jiving I make the following distribution of my worldly goods and chattels which I am sure will be more appreciated as keepsakes, and mementoes than for any intrinsic value that they may have. ’ ’

(Here follows a distribution of her household effects, jewelry and clothing to various persons.)

“I appoint my cousin Dr. R. N. Crews the executor of this will without bond. '
“Witness my hand this February 8, 1917.
her
“Sallie X E. Chews”
Mark

Said will was properly witnessed.

Defendant Robert N. Crews qualified as executor of the said will of Sallie E. Crews but afterwards resigned, whereupon M. L. Guthrie was appointed administrator, with the will annexed. M. L. Guthrie, as administrator and Claudius E. Cheatham, sole heir of Sallie E. Crews, are the plaintiffs herein, and Robert N. Crews, both in his capacity as executor of the will of Robert A. Crews, deceased, and in his individual capacity are defendants. The pleadings in the cause are not challenged, therefore there is no necessity for reproducing them here.

The plaintiffs contend: First, That under the will of Robert A. Crews the proceeds of all property reduced to cash, prior to the death of Sallie E. Crews, became her absolute property. Second, That the real • estate having been sold by the executors under the power given by the will of Robert A. Crews, the exercise of this power converted the life estate or beneficial interest, of Sallie E. Crews into an estate in fee, the proceeds of such sale thereby becoming her absolute property, and that all money now in the hands of defendant Robert N. Crews, being either the proceeds of such sale or accrued interest thereon, was the sole property of Sallie E. Crews, making plaintiff M. L. Guthrie, as administrator of her estate, or plaintiff Claudius E. Cheatham, as her sole heir at law, entitled thereto. Third, That even though the proceeds of sale of real estate did not become the absolute property of Sallie E. Crews, yet she was entitled to have as her absolute property all interest received thereon and all rents collected on such real estate prior to the sale thereof, both of which should be accounted for and paid over to plaintiffs. Fourth, That Robert N. Crews should be required to account for and pay over one-half of the commissions retained by him. Fifth, That the $80 found in the dress of Mrs. Crews was her absolute property and that plaintiffs are entitled thereto.

We shall consider plantiffs’ claims in the order presented. The real question in the case, however, involves the construction of the will of Robert A, Crews-.

I. To sustain plaintiffs’ first and second contentions, which, are so interwoven that we shall consider them together, it would be necessary to construe the will in question as creating’ in Sallie' E. Crews an estate in fee upon the exercise by her and her co-executor of the power of sale conferred upon them by the instrument. Grace v. Perry, 197 Mo. 550, strongly relied upon by plaintiffs to sustain this construction, is to be distinguished from the case at bar in this, to-wit: In that case the intention was to create an estate for life in the children of the deceased, with full and absolute power of disposition so as to vest an estate in fee simple- in the grantee, and with a remainder over to the heirs of such children in the event of the death of either of them prior to a disposal of their respective shares, while in the instant case a life .estate is created in the widow, with a power 6f disposition limited to the realization of such amount as may he necessary for her support, maintenance, traveling expenses and charities, and with the expressed intention that any portion of the estate unused by her shall go to the relatives of the testator named in the will and not to the relatives of the widow. A careful examination of the remaining authorities cited by learned counsel for planitiffs leads us to likewise conclude that they are either distinguishable or not in point.

The construction urged by plaintiffs is not consonant with our interpretation of the intent of the testator, which, as is well settled, must be gathered from the whole instrument and fully effectuated, if not violative of some established rule of law. [Grace v. Perry, 197 Mo. l. c. 559; Brooks v. Brooks, 187 Mo. 476; Cross v. Hoch, 149 Mo. 325; R. S. 1919, sec. 555.] Clearly, upon an examination of the provisions of the will, it is evident that Robert A. Crews intended that his wife should have an estate for life in both his real and personal property, with power to sell all or any part of the real estate which she might require for her support and maintenance, and with a remainder over at her death to the further beneficiaries named in the will. The language used indicates that it was the wish of the testator that Mrs. Crews should use the property as she found necessary during her life, even to the extent of selling the real estate, and that at her death what remained, in whatever form, was to be distributed to the persons named in the will, in the proportions therein set forth. That portion of the estate which remained unused by Mrs. Crews, if not in the form of cash, was to be sold and distributed to the legatees named. No other meaning can be properly gathered from the clause, “At her death, my estate shall be sold as fast as prices may warrant by my executor without him giving bond. And the proceeds to be divided as folíolos, to-wit:” These words are plain and umambiguous and when ■ taken in conjunction with the words “I will and devise to my wife, Sallie E. Crews, all my property real, personal and mixed for and during her natural life for her support, ” etc., constitute persuasive evidence that it was the intention of the testator to control the further disposition of his property after the death of Mrs. Crews, thereby wholly negativing the idea that she was to have an absolute estate or that it was to ripen into one through the exercise by her of the power of disposition conferred upon her. Counsel for plaintiffs argue that the testator “was a lawyer of acknowledged ability and the will was framed and drawn by a man of long experience and great ability.” It is therefore fair to assume that both the testator as well as the scrivener understood the full import and the legal effect of the language used.

In arriving at our interpretation and conclusions we are guided by Redman v. Barger, 118 Mo. 568, which case is especially applicable to the facts here. In that case the pertinent part of the will under consideration provided as follows:

“To my wife: Item: I give devise and bequeath to my beloved wife Nancy Barger all my estate real personal or mixed to lrave and to hold the same and to he empowered to sell or dispose of it at pleasure and also all my moneys to he paid to her by my executors hereinafter named within twelve months after my decease. I also, give to h.er the use improvements and income of my dwelling house, land and its appurtenances situate in DeKalb County Missouri to have and to hold the same to her and during her natural life and from and after the decease of my said wife I give and bequeath the remaining part of said real personal or mixed^ estate and hereditaments unto such child or children as I shall leave or have living at the time of my decease and to their heirs and assigns forever the same to be divided equally among them.”

There, as here, the widow, Nancy Barger, qualified as executrix of the estate of Abram B. Barger, her deceased husband, administered upon the same, and upon final settlement took all of the estate as devisee under the will. During her lifetime she disposed of all the personal property and real estate and died leaving moneys and notes arising from the sale of such real estate. An administrator of her estate was appointed and he administered .thereon. Upon final settlement the probate court ordered distribution to the defendants, children of Abram B. Barger, which order was confirmed in the circuit court. Upon appeal to this court, the plaintiffs, who were the children of Nancy Barger by a former marriage, claimed that by the provisions of the will of Abram B. Barger the real estate which belonged to his estate became the absolute property of Nancy Barger and that as her heix-s at law they became entitled to the proceeds thereof. In denying their. (claim, this court, speaking through Brace, J., said, at page 575: “The intention of the testator was to give the wife the whole of his estate, to manage, sell of dispose of it according to her5 own pleasure during her life, and at her death, whatever the form or condition of what was left of that same estate, whether real, personal or mixed, or that could be included by the scrivener under the comprehensive title of hereditaments, was to go to Ms children and their assigns forever. . . . Nor do we think such intention should be defeated by a purely technical construction of the will. On the contrary, such intention should be carried into effect, as we think it may well be, on principle and upon the authority of the adjudicated cases.” (Italics ours.)

And further, in passing upon the effect of the added power of disposition, the court said: “A power of disposition superadded to a life estate, in a mixed estate of real and personal property, given by will to the wife as a present provision, ought not, against the intention of the testator, to defeat a future provision made for his children to take effect at her death, out of the same estate, if there remain anything of that estate to satisfy such provision in the hands of the life tenant at her decease, -whatever change in the form of the property she may have effected under the power given her in the will.” (Italics ours.)

To like effect, upon facts analogous to those in the case at bar, are Munro v. Collins, 95 Mo. 33; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Ricketts v. People’s Bank, 196 S. W. 26; Schneider v. Kloepple, 270 Mo. 389; Threlkeld v. Threlkeld, 238 Mo. 459; Trigg v. Trigg, 192 S. W. 1011, and McMillan v. Farrow, 141 Mo. 55.

"When examined in detail, there being nothing in the language of the Crews will which is inconsistent with the purposes thereof, or any rule of law which should defeat those purposes, upon authority of the adjudicated cases, we must rule against plaintiffs on the first and second points they make and hold that Sallie E. Crews took a life estate- in the property of Robert A. Crews, that the exercise by her of the power of sale conferred upon her did not convert her life estate in the proceeds of sale of said property into an estate in fee simple, and that at her death whatever remained of said property-descended and should be distributed according to the provisions of the will of Robert A. Crews.

II. Plaintiffs third contention, that they are entitled to interest and rents received by the executors, is untenable. The fact that Mrs. Crews was entitled to the income does not seem to be disputed by counsel for defendants nor can it be disputed as a matter of law. The record shows that she did receive all of the income, over and above the amount necessary for taxes, repairs and expenses of administration, and spent it for her support and maintenance as was intended. ' It, and even a part of the corpus of the estate, was dissipated and constituted no part of her estate at her death. Obviously, if she received it and spent it, plaintiffs cannot now lay claim to the gross amount of income realized from the estate and have recourse for payment to the corpus. It has been held, and we think properly so, that'a life tenant is entitled to the entire fruits and income of the life estate and if the same is consumed in the use intended to be made of it, the rights of the remaindermen are defeated and they are entitled to nothing. [Forsey v. Luton, 2 Head (Tenn.) 183; Ballentine v. Spear, 2 Baxter (Tenn.) 269; Calhoun v. Furgeson, 3 Richardson Eq. (S. C.) 160.]

III. Plaintiffs’ claim to one-half of the commissions retained by defendant Robert N. Crews is not sustained by the evidence. While it may be true that as a matter of law Mrs. Crews was entitled to one-half 0f the commissions, nevertheless the testimony shows that she voluntarily relinquished her right thereto and in effect gave her share to her co-executor. By so doing she parted with her right in and dominion over her proportion of the commissions and delivered the same to Robert N. Crews. Upon his acceptance thereof, the gift was consumated and became conclusive between them. [Hunter v. Wabash Railroad, 149 Mo. App. 243; Meyer v. Koehring, 129 Mo. 15.] And, plaintiffs having introduced no evidence tending to disprove the agreement between Mrs. Crews and Robert N. Crews, they are bound by her action. Furthermore, whether or not her relinquishment amounted to' a gift, the agreement between Mrs. Crews and her co-executor, apportioning the commissions as they did, was legal and binding, it appearing that Robert N. Crews actually transacted the greater part of the business of the estate. [In re Aston’s Estate, 5 Wharton, (Pa.) 228; John v. John, 122 Pa. St. 107, 15 Atl. 675.] And the waiver by Mrs. Crews did not in any manner prejudice the rights of her co-executor. [Schoeneich v. Reed, 8 Mo. App. 356.] We must therefore hold against plaintiffs on this claim.

TV. With respect to plaintiffs’ fifth contention, we are of the opinion that the $80 in question having been originally given to Mrs. Crews as part of an advancement for her suppqrt, maintenace and traveling expenses; and having been returned to the estate of Robert A. Crews by her co-executor, with her knowledge and consent, the same again became a part of the estate and the legatees named in the will are entitled thereto as against the plaintiffs herein.

A review of the entire record convinces us that the judgment of the learned chancellor, nisi, was correct, and such judgment is accordingly affirmed.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM:

license: Public Domain

text:
    NANNIE E. FLYNN, Appellant, v. JOHN TATE.
    Division One,
    March 5, 1921.
    1. SUIT TO DETERMINE TITLE: Service hy Publication: In Partition: Misnomer. In a partition suit a decree of partition and sale based on service by publication is void as to a non-resident defendant who is proceeded against in the petition and order of publication by a surname other than his true name; and a sale under such a decree vests no title in an innocent purchaser without notice. 1
    2. -: -: -: Nannie Flynn for Nannie Morgan. Plaintiff’s maiden name was Nannie Martin. She married a man named Morgan. ' He died and she afterwards married a man named Flynn and was living with him in Oklahoma, when a suit was begun against her under the name of Nannie Morgan for partition and sale of land in which she had an- undivided interest. Service was by publication against her as Nannie Morgan and based thereon was a decree of partition and sale. Held, the decree was void as to her.
    Appeal from Clinton Circuit Court. — Hon. Alonzo D. B'Urnes, Judge.
    Reversed and remanded1.

      F. B. Klepper and W. 8. Herndon for appellant.
    (1) An examination of tlie pleadings, in this case will show that the only issue was, whether or not the respondent obtained the interest of appellant, in the lands described in the petition, in the partition suit of Mary E. Lay and William A. Martin v. Nora Scott and Nannie Morgan, or the unknown heirs of Nannie Morgan. The trial court held as the basis of its order dismissing the plaintiff’s suit, that the evidence introduced by the plaintiff showed no title in her. The plaintiff did not attempt to show a clear title from the Government down, but she did show a common source of title in her ancestor, Henderson Martin. In addition to this the pleadings show that each party claims from the same common source. This was sufficient. Riley v. 0 ’Kelly, 250 Mo. 857; Machine Works v. Bowers, 200 Mo. 235; Charles v. Whilte, 214 Mo. 211; Maynor v. Land & Timber Co., 236 Mo. 728; Toler v. Edwards, 249 Mo. 162. (2) The decree in the partition suit of Mary E. Lay and William A. Martin v. Ñora Scott and Nannie Morgan, or the unknown heirs of Nannie Morgan, was void. The undisputed proof shows that at the time the suit was filed, and for twelve years prior thereto, the appellant’s name was Nannie E. Flynn. The copy of the order published was against Nora Scott and Nannie Morgan. Service by publication against “Nannie Morgan” is not service against Nannie Flynn; and gave the court no jurisdiction. Ohlman v. Saw Mill Co., 222 Mo. 62; Freemar v. Hawkins, 77 Tex. 498, 19 Am. St. 769. The case of Schnitger v. Rankin, 192 Mo. 35, relied upon by the respondent in the court below, has no application in this case for the reason the judgment in the Schnitger-Rankin case was in a tax suit and the statutes provided for tax suits to be brought against the record owner. (3) There is no allegation in the petition which will support the decree, to the effect that Mary E. Lay, William A. Martin and Nora Scott were the only heirs at law of Nannie Morgan, or to adjudge the said Nannie Morgan to be dead on account of none of her people having heard from her for eighteen years, (a) “A judgment by default on proof of publication must rest for its validity on the petition as it was when the order of publication was made.” Cooper v. Guenther, 215 Mo. 564-5. (b) “A petition is as much a part of the record in this case as the judgment and if the judgment rendered is not authorized by the allegations of the petition, it is of course erroneous.” St. Louis v. Wright Contracting C-o.', 210 Mo. 499. (c) There was personal service in the Wright case. Had there been only service by publication, the judgment would have been void. The petition must fairly justify and support the judgment rendered. Webb v. Carter, 121 Mo. App. 154; Black v. Early, 208 Mo. 313; Buslr v. Brown, 101 Mo. 586; J acts on v. Bush, 87 Mo. App. 238; Sec. 2100, B. S. 1909; Phillips v. Brough-ten, 193 S. W. 593. (4) A sale in partition is a judicial sale and the rule of caveat emptor applies, and in no event can the purchaser acquire anything except the title which the parties 'themselves had. In the case at bar, the respondent could only acquire the title of those against whom there was a valid judgment. Smoot v. Judd, 161 Mo.. 691; Pentz v. Keuster, 41 Mo. 447; Cashion v. Faina, 47 Mo. 133; Stevens v. Ellis, 65 Mo. 456; Hart v. Steedman, 98 Mo. 452. .

      Daniel H. Frost and E. G. Hall for respondents.
    (1) The appellant was made a party to the partition suit and the publication against her was sufficient to bring her into court for all purposes so far as the partition of that tract of land was concerned. Schnitz-ger v. Bankin, 192 Mo. 35. (a) There is absolutely no proof that Nannie Morgan was married to Flynn at the date of this partition suit in 1915, and even if she was, she was one and the same person as Nannie Morgan. If this be not the correct construction, then no suit could ever be brought and proceeded with to judgment against female defendants absent from the State, especially when their whereabouts are unknown. She was as well notified by her name of Nannie Morgan as by that of Nannie Flynn, even if she was married to Flynn at the date of the partition suit, which the evidence does not show. Howard v. Brown, 197 Mo. 47. (b) The use of a name is to designate the individual of whom we speak, so as to distinguish bim from some other person. Ohlmann v. Sawmill Co., 222 Mo. 66; In re Jones Estate, 2:7 Pa. St. 338. (2) The order of publication gives the title of the cause and sets forth the names of the brother, mother, sister of this respondent, and her own name as she was known to everybody who knew her in Missouri. She knew Nannie Morgan was the name she went under for many years, she knew that W. A. Martin was her brother, that Nora Seott was her sister and that Mary E. Lay was her mother, and her deposition shows that she knew where they lived and that Nora Scott was a non-resident of Missouri, just as the order of publication shows. . It shows her own family group and shows by evidence to her which is unmistakable that she is the very identical person designated in that order of publication. Howard v. Brown, 197 Mo. 47. (3) The judgment in the partition suit was regular on its face and could not be collaterally attacked except for errors shown by its own record and cannot be impeached by matters in pais. Reed Bros. v. Nicholson, 158 Mo. 624; Abington v. Townsend, 271 Mo. 615; State v. Wear, 145 Mo. 162. (4) Appellant makes the point that there was no allegation in the original petition to justify that portion of the judgment vesting the.interest of the appellant in her mother and brothers and sisters. Even if that be the case that would not affect respondent’s title, which rests on that part of the decree ordering the land sold for division and partition, upon which appellant makes no attack. (5) There'was no proof of title in the plaintiff, and if plaintiff has no title it is no concern of hers what defendant may have or claim. Wheeler v. Land Co., 193 Mo. 279.
   BROWN, C.

The petition was filed in the Clinton Circuit Court July 23, 1918, and states, in substance, that the plaintiff is the owner of an undivided one-sixth of thirty-three acres of land in that county, which it particularly describes; that the defendant is the owner of the undivided five-sixths, and is in possession claiming the entire title; that his adverse claim of her undivided one-sixth is based on a pretended decree of that court rendered at the September term thereof, 1915, in a partition proceeding entitled Mary E. Lay and W. A. Martin, plaintiffs, v. Nora Scott and Nannie Morgan, defendants. Tlie prayer is that the court ascertain and determine the estate, title and interest of the plaintiff and defendant respectively in such real estate, and define and adjudge the title and estate of the plaintiff and defendant severally in and to the same, and for general relief.

The defendant answered by general denial, and also “that in a certain cause pending in the Circuit Court of Clinton County, Missouri, entitled Mary E. Lay and William Martin, plaintiffs, v. Nora Scott and Nannie Morgan, defendants, for partition and sale of the real estate described in the petition, a decree was entered ascertaining the rights and interests of the parties therein and by its said decree did find and determine that the said Nannie Morgan had disappeared from his home in Clinton County, Missouri, and had gone out of the State and had not been heard from for a period of fifteen years, ordered that the "interests of plaintiff in said real estate be ordered sold and distributed among the other heirs of said estate set forth in said petition. ’ ’

It further pleaded that the court had jurisdiction of the subject-matter and parties to said cause; that the decree was valid against plaintiff and all other parties thereto and that in pursuance thereof the land was sold by order of the said court to the defendant who paid the full amount of the purchase price and received a deed therefor. That he purchased in good faith not being aware that plaintiff had ever changed her name to Nannie Flynn, if she had so changed it.

The reply was a general denial. Upon trial the court found that plaintiff had no title to the land and dismissed the petition. The plaintiff thereupon after the usual motions filed and determined perfected this appeal.

Plaintiff introduced in evidence the original petition filed in said court July 21, 1915, entitled Mary E. Lay and W. A. Martin, plaintiffs, v. Nannie Morgan and Nora Scott or the unknown heirs of Nannie Morgan, defendants.

It stated, in substance, that Henderson Martin died intestate on the -day of-, 188-, the owner in fee of 55 acres of land in Clinton County, including the 33 acres in question, leaving his widow Mary E. Henderson, now Mary E. Lay, his sons William A. Martin and Andy Martin and his daughters, Nannie Morgan and Nora Scott his heirs at law.

That on the-day of-, 188-, the said heirs at law agreed among themselves upon a parol partition of said land by which each party was to receive eleven acres and entered into possession of the several parts so allotted; that afterward on the 29th day of October, 1885, the said Nannie Morgan conveyed her interest therein to John Miles, who in January, 1893, conveyed it to William A. Martin, who on the 21st day of January, 1893, joined with Mary E. Lay, Noi*a Scott and Andy .Martin, conveyed the shares set off to Nannie Morgan and William A. Martin by said parol agreement to one Josiah Stoutimore; that William A. Martin and Nannie Morgan failed to deed their interest in the 33 acre tract to Mary E. Lay, Nora Scott and Andy Martin as per the parcel agreement; that Andy Martin purchased from Nora Scott the 11 acres set out to her and that the plaintiffs Mary E. Lay and Andy Martin had been in possession of said 33 acres for thirty years and that Josiah Stoutimore and the grantees of heirs had been in possession of the 22 acres belonging to Nannie Morgan and William A. Martin for more than 25 years. This petition further stated that Andy Martin died intestate on the- day of -- — , 1915, the owner of an undivided two-thirds interest in the 33 acres here in question while the plaintiff was the owner of the other one-third interest; thát the said Andy Martin left as his ouly Éeirs at law Mary E. Lay and defendant William A. Martin and the defendants Nannie Morgan and.Nora Scott.

It further stated that the defendants Nannie Morgan and Nora Scott were non-residents of the State of Missouri and due process of law could not he served upon Mm and asked for an order of publication for said non-resident defendants. It concluded with the usual statement that a division could not he made in kind and asked an order of sale and was verified by one of the attorneys who signed it, ‘ ‘ to the best of his knowledge and belief.”

Upon this an order of publication was.issued stating as ground therefor the allegation of the petition “that the defendants are non-residents of the State of Missouri.”'

No appearance having been made by the defendants, a default decree was entered upon the finding that Henderson Martin died intestate on the - day of-, 188-, the owner in fee simple of the land in controversy which is fully described. “That he left as his only heirs at law his widow, Mary E. Henderson, and W. A. Martin, Andy Martin, Nannie Morgan and Nora Scott and that soon after the death of said Henderson Martin, the said • Mary E. Martin and his said other heirs at law agreed on a parol partition of said land and that each one took an equal share, to-wit, 11 acres; and each at once entered into possession, of their respective tracts as agreed upon; and the court hereby confirms said parol partition of said 55 acre tract of land further described as aforesaid. The court further finds that the said Mary E. Lay, ~W. A. Martin, Nora Scott, and the unknown heirs of Nannie Morgan were and are tenants in common and owners in fee of the following described real estate, situate, lying and being in the County of Clinton and State of Missouri, to-wit: All of the East half of the Northwest quarter of the Southeast quarter and 13 acres off the west side of the Northeast quarter of the Southeast quarter of Section Nine (9) in Township fifty-four (54) of Range Thirty-two (32) in Clinton County, Missouri; the court fur-flier finds that the defendant Nannie Morgan has not been heard from by any of her people or kind for over 18 years and decrees that her interest in said lands, be divided among her heirs at law, her mother, Mary E. Lay, W. A. Martin and Nora Scott. The court further finds that the plaintiff Mary E. Lay is the owner of a five-ninths undivided interest in said land; that the plaintiff W. A. Martin and the defendant Nora Scott are each entitled to a two-ninths undivided interest in said land.

A sale was ordered in accordance with the prayer of the petition.

No attempt was made to question the facts in evidence. Mrs. Flynn was bom on the farm in question about 1864. Her father died when she was about sixteen years old and on October 12, 1884, when she was twenty she married. Morgan. Two years afterward she and her husband went to Cherokee Nation, where they lived a few months, then to Cnlbert County, Arkansas, where they lived about a year and went back to Cherokee Nation, where her husband died. She afterward married John Flynn, with whom she had since lived twelve years at Blanchard, Oklahoma. She corresponded with her mother and kept her informed as to her whereabouts during her life and afterward wrote letters to her which were not answered. She had no information of any proceeding in court until the county clerk wrote her on July 26, 1917, and never received anything from the estate of her mother or deceased brother. "When Andy died he left surviving him as his heirs his mother, his brother "William, his sister Verona Scott and herself. "When her mother died she left as her heirs the three last named.

The court held there was nothing in the evidence showing title in the plaintiff, and dismissed the petition with costs.

The general object of this suit is to recover an undivided one-sixth interest in thirty-three acres of land in Clinton County, against tlie defendant who is alleged to be in possession claiming under á void judicial sale in partition. Tlie validity and effect of this sale is tlie only question involved.

One Martin is tlie common source of title. He died about 1880, leaving a widow, Mary E. Martin, two sons William and Andy and two daughters, Verona who married one Scott and is known as Nora Scott, and Nannie Morgan, who married Morgan in 1884. He afterward died and she married John Flynn, with whom she lived at Blanchard, Oklahoma, for about twelve years before the institution of this suit. Soon after the death of the elder Martin, his widow, Mary, married one Lay. No children were bom to them.

The record of the partition suit upon which the defendant depends to establish his title shows that Andy Martin died at an unnamed date in 1915, leaving his mother, his brother William and his two sisters as his only heirs, and seized of an undivided two-thirds of the land, and that this plaintiff thereby became seized of the undivided, one-sixth which she claims in this suit. The mother and brother instituted the petition suit on July 21 of the same year against the two sisters, Mrs. Flynn and Mrs. Scott, who were both alleged in the petition to be non-residents of the State. Nothing is said about the death or disappearance of either, but it is entitled against “Nannie Morgan and Nora Scott or the unknown heirs of Nannie Morgan.” It is upon this title alone that the decree of distribution to plaintiffs as heirs of Mrs. Flynn is founded.

We have repeated so .much of our statement in this connection to show the purpose for which the process of the law was invoked in that suit, and the promptness with which it occurred to the living upon the death of the son and brother to secure to themselves without compensation the interest of the absent and unsuspecting sisters. These are important elements in the interpretation of tlie statute upon which tlioy rely for tlie accomplishment of their purpose.

The honest intent of .the Legislature mil he presumed. It mil therefor he presumed that in suits involving the property rights of non-residents of the State the substitution of notice by publication in a newspaper of the State in which the proceeding is instituted is intended to he of such a character as to bring home to the defendant a knowledge of that fact through the avenues by which such information usually reaches the person for whom it is intended. Should it be published in the Latin language proof that the defendant read that language with fluency would not cure the omission to publish it in the language which the law prescribes, because it is used and understood by his countrymen, and especially by friends and neighbors who might see it and bring it to his attention. This publicity is its very essence, and it is presumed to reach him because it is open to all alike and every member of the public may be the instrument of its. communication to the person for whose information it is designed. This is peculiarly applicable to the facts of this case. Mrs. Flynn at the time that suit was instituted and the public notice given, resided in Blanchard, Oklahoma, with her husband. It made no difference in that community what had been the name of a former husband with whom she had lived and whose name she had borne years before, in Plattsburg, Missouri. The name of her husband was her name, and nothing but a desire for concealment could be inferred from the method employed to notify her.

This concealment runs like a thread through the proceeding.

The petition which states her non-residence in Missouri and refers to her unknown heirs, was verified under oath. Neither her. mother nor her brother, members of her own family, which will be presumed until the contrary appears to have known her name and residence, made oath to it but it was verified by their lawyer upon information and belief. Mrs. Flynn stated on oath in this case that she had corresponded with her mother np to the time of her death, yet no one acquainted with the facts or family has explained their ignorance. Although there was no allegation in the petition that Mrs. Flynn was dead, the mother and brother took a decree as her heirs.

We have noticed these circumstances simply to illustrate the purposes for which this class of service may be used. It is frankly admitted that this plaintiff was the owner of one-sixth interest which she had just inherited from her deceased brother, and it goes without saying that the proceeding was promptly instituted for the sole purpose of stripping her of it without compensation or right, but simply by cold manipulation of legal process intended to supply a remedy to deserving litigants. As this court said in Stanton v. Thompson, 234 Mo. l. c. 11: “The service of process by newspaper publication is allowed as of necessity. It is due process of law more in form than substance. However convenient, it is a harsh and highly technical substitute for servi.ce of process; therefore, is strictissimi juris, and (being of rigid right) a party invoking it is entitled to cold law — no less, no more. [Parker v. Burton, 172 Mo. l. c. 91, et seq; Morrison v. Turnbaugh, 192 Mo. l. c. 446; Davis v. Montgomery, 205 Mo. l. c. 283, et seq.; Ohlmann v. Sawmill Co., 222 Mo. l. c. 67 et seq. and cases cited.] ” The law requir.es it to be given to the non-resident defendant by his own name, and not otherwise, and the failure to do so renders it void. The Legislature has gone to the brink of its constitutional right in authorizing the property of the individual to be taken, whether wrongfully or rightfully, by its use, and the courts can go no further. As this court said in Ohlmann v. Sawmill Co., 222 Mo. 62, in considering a variance of name in the published notice not merely so striking as this: “The question goes to jurisdiction and due process of law. No man may judicially lose his property without his day in court. A day in court proceeds on notice. So, dne process of law and jurisdiction depend on notice. ’ ’

In Corrigan v. Schmidt, 126 Mo. 304, the omission of the initial letter of the middle name of the defendant in the publication of notice was held to avoid the judgment. In Burge v. Burge, 94 Mo. App. 15, the court held that Emma was not identical with Emily for the purpose of notice by publication. This is the first case we can recall in which the substitution of an entirely dissimilar name for the true name of the defendant has ever been brought before a court for consideration.

"We are cited by the respondent to White v. Lumber Company, 240 Mo. 13, l. c. 27, as holding a different /doctrine. On the contrary .it expressly approves the cases we have cited, and presents the case in hand as follows : “In the case at bar we have a new question, viz.: When the grantee takes a deed by his initials, three in number, will a suit by substituted service against him be good, when a mistake is made in the middle initial? As applied to this case, the question is, will a judgment upon substituted service for taxes against O. N. R. Williams, be good against O. H. P. Williams, who is the true owner?” The court held that by the deed the defendant had adopted the initial “O” as his first name although it might in fact have been Oliver, and that the first name being correctly stated in the notice it was not avoided by a mistake in the middle initial. However correct and convincing this reasoning may be it certainly has no application upon principle to the case before us. It does not go to the length of holding, as we are now asked to hold, that notice by publication may be directed against a married woman by the name of any husband she may have previously had. It requires further legislation to bring about this result.

In view of the conclusion stated, it is unnecessary to notice another question suggested by this record, viz: Can a plaintiff sue a defendant as a living person, and, without iany pleading, original or amendatory to that effect, recover on the ground that defendant died before the institution of the suit, leaving the plaintiff as his only heir. The puzzle becomes still more unique when we attempt to substitute the plaintiffs as unknown heirs.

The title of the plaintiff to an undivided one-sixth of the land described being admitted b.y the record, the judgment of the Circuit Court for Clinton County is reversed, and the cause remanded for proceedings in accordance with this opinion.

Ragland and -Small, CG., concur.

PER CURIAM:

The foregoing opinion of Brown, 0., is adopted as the opinion of the court.

All of the judges concur.


author:
RAGLAND, C.
      PEE CUEIAM:

text:
    THE STATE at the relation and to the use of ELMER J. BRUBAKER, Appellant, v. MARTIN TUCKER et al.
    Division One,
    March 5, 1921.
    1. EXECUTION: Levy on Real Estate of Third Person: Release by Sheriff: Suit on Bond: Judgment on Pleadings. In a suit on a sheriffs bond under Section 2240, Revised Statutes 1909, for refusal to sell real estate levied upon as the property of the execution defendant, where it is admitted in the pleadings that the execution defendant had no interest in. the property levied upon, the defendants are entitled to judgment upon the pleadings.
    2. -: -: -: Creditor’s Control: Sheriff’s Liability. The execution creditor’s control of an execution is not- absolute, as he cannot require the officer to levy upon property of a third person. But if he directs the officer to levy upon real -estate as that of the execution debtor and he refuses to do so, or refuses to sell after making such a levy, then the officer assumes the risk of having to pay the execution debt unless he can show that the execution debtor had no interest subject to execution in such real estate.
    3.-: -: -: Fraudulent Deed: Pleading. A deed made to defraud creditors is, under Section 2887, Revised Statutes 1909, “clearly and utterly void” and conveys nothing at all; and when a pleading asserts title based on such a deed, a general denial in reply is all that is required to enable plaintiff to introduce evidence of the fraudulent character of such deed. ^
    4. -: -; -: Irrelevant Matters: Value of Land: Good Faith of Sheriff. In this case, inasmuch as the pleadings admitted that the execution debtor had no interest in the real estate levied upon subject to execution, the value of the land and the good faith of the sheriff in releasing the levy are wholly irrelevant matters.
    Appeal from Cooper Circuj.t Court. — Hon. J. G. Slate, Judge.
    Afftbmed.

      William F. Johnson, W. V. Draff en and John Cos-grove for appellant.
    (.1) • The execution was in due form. It was issued on the judgment of a court that had jurisdiction over the parties, plaintiff and defendant, and of-the subject-matter of the litigation. The sheriff had only to look at the command of the writ. Brown % Henderson, 1 Mo. 94; Sate v. Miller, 110 Mo. App. 542; State ex reí. y. O’Neil, 151 ;Mo. 67; Owl’s Nest v,.'Haines, 176 S. W. 513; Melcher v. Scruggs, 72 Mo. 411. (2) The sheriff and the sureties on his bond were liable for the amount of money called for in the execution on account of the refusal of the sheriff to sell the real estate described in the notice of sale and levied upon under execution. His failure to make the sale was a breach of his bond. See. 2240, R. S. 1909; State ex rel. O’Bryan v. Koontz, 83 Mo. 323; Douglas v. Baker, 9 Mo. 40; State ex rel. Nolte, 217 S. W. 541; State ex rel. v. Nolten, 203 S. W. 956. (3) The property levied upon and advertised for sale was real estate. No indemnity was demanded by the sheriff to protect him against damages in the event he sold said land. That question, therefore, is not in this case. Our understanding of the law is that the officer is not entitled to be indemnified against the sale of real estate under an execution which is regular on its' face. State ex rel. 0 ’Bryan v. Koontz, 83 Mo. 323. (4) A judgment creditor has the option of first bringing a suit in equity to set aside a deed made by the debtor and alleged to be fraudulent, or he may have said land advertised for sale and the purchaser may then proceed to have said conveyance adjudged to be fraudulent. This has been the rule in this State for a long time and no attempt has been made, as far as we know, to modify or change the rule. Lionberger v. Baker,1' 88 Mo. 447; Johnson v. United Railways, 247 Mo. 356; Littick v. Means, 195 S. W. 729; Goldham v. Wade, 200 S. W. 1053.

      Pendleton & Pendleton and Lamm, Bohling & Lamm for respondents.
    (1) Since the petition does not directly or impliedly allege that the execution debtor owned any- interest in the real estate, it does not state facts sufficient to constitute a cause of action, (a) Plaintiff seeks to recover, under a highly penal statute, the penalty imposed by Sec. 2240, R. S. 1909, upon an officer who neglects or refuses to sell, “according to law,” property levied upon under an execution. Such being the case plaintiff in his petition must bring himself clearly within the very terms of the statute. He cannot be helped out by intendment. Every fact essential to a recovery must be affirmatively pleaded. Commission Co. v. Tel. Co., 180 Mo. App. 631; Plymell v. Meadows, 170 Mo. App: 39-40; State ex rel. v. Railroad, 105 Mo. App. 211; Rixke v. Western Union, 96 Mo. App. 410; State ex rel. v. Railroad, 83 Mo. 148. (b) The petition alleged a failure and refusal of the sheriff to sell certain land levied upon under execution, but there was no allegation that the execution debtor owned the land, or that any person was seized to his use, or that he had an interest in the real estate subject to levy and sale under the execution. This was a necessary allegation to make a good petition. R. S. 1909, secs. 2172, 2192, 2173, 2240. (c) The defect in the petition of not stating a canse of action can "be raised at any time or in any court. Hudson v. Calioon, 193 Mo. 558. (2) Since the answer affirmatively sets up ownership by another and no interest at all in the execution debtor, thus raising a vital issue of fact, and since the reply does not traverse those allegations of the answer, they hence stand admitted and it follows as a matter of law that we were entitled to judgment on the very pleadings as they stand. (3) As Section 2240 is a highly penal statute, the correct rule of construction is that it must not be regarded as including anything which is not clearly and intelligently described in its very words, as well as manifestly intended by the Legislature, and if the matter is in doubt the statute cannot be made to cover it. Riste v. Western Union, 96 Mo. App. 410; State ex rel. v. Railroad 105 Mo. App. 211-13; Wood v. Telegraph Co., 59 Mo. App. 239; State- ex rel. v. Wabash, 83 Mo. 148; State v. Kooch, 202 Mo. 234. All the statutes relating to the same subject-matter must he construed together so as to make the law a symmetrical whole and construed with common sense and reason and so as not to lead to oppression or absurdity, the presumption being that the law-mker did not intend such anomalous result. The judge must seek for the soul and sense of the law to get at the legislative intent. State ex rel. v. Railroad, 105 Mo. App. 2.13; Keeney v. McCoy, 206 Mo. 65; Hegberg v. Railroad, 164 Mo. App. 555; State ex rel. v. Trustees, 234 Mo. 313; Ettison v. Railroad, 248 Mo. 419; Dudley v. Clark, 255 Mo. 586; St. Louis v. College, 258 Mo. 552; Fusz v. Spaunhorst, 67 Mo. 256; Lumber Co. v. Railroad, 216 Mo. 672. (4) On uncontra-dicted evidence the execution debtor was shown not to have any interest subject to sale in the real estate in question. Without waiving any right to complain of the fatal insufficiency of the petition to state a cause of action, the defendant bondsmen and sheriff took, by their answer and the proof, the burden of showing, and did show by uncontested proof, that the execution debtor was not seized, nor was any person to bis use seized, of the land in law or equity. It belonged to Mrs. Bidstrup out-and-out. In the-first place, prior to the deed to her, the tenancy of herself and husband was by the entirety, and, while that condition lasted, it was, hence, not subject to sale on execution for his debts. Wilson v. Frost, 186 Mo. 311; Frost v. Frost, 200 Mo. 474; Brewing Co. v. Saxey, 201 S. W. 67. (b) In the next place, the undisputed evidence shows a homestead in the land at the time of the conveyance to Mrs. Bid-strup; and it is common learning that the homestead interest may be conveyed without regard to existing judgments, debts or creditors; for the homestead is forbidden fruit to the creditor. He may not take or eat thereof. Nor could it be sold under execution without setting off the homestead. Harte v. Leete, 104 Mo. 336; Kendall v. Powers, 96 Mo. 142; Gorman v. Hale, 109 Mo. App, 176. (c) Conveyance to the wife, even if intentionally made to defeat creditor, is not fraudulent. Yogler v. Montgomery, 54 Mo. 577; Bavis v. Land, 88 Mo. 436; Pococke v. Peterson, 256 Mo. 501; Guiman v. Donnell, 201 Mo. 212. (5) The right doctrine is that an officer has no right to sell on execution against A (the execution debtor) the property of B (a stranger to the judgment and execution) and that it is a valid and complete defense for him and his bondsmen to show when sued for releasing a levy or refusal to sell, that the execution debtor had no interest in the property released, (a) This is a case simply of releasing a levy and refusing to sell and in such cases as that it is a good defense to show that the property did not belong to the execution or attachnjent debtor. Heath v. Daggett, 27 Mo. 72; State ex rel. v. Koontz, 83 Mo. 331; Stephenson v. Judy, 49 Mo. 229; Kiskaddon v. Jones, 63 Mo. 192; Taylor v. Wimer, 30 Mo. 129-30; Metzner v. Graham, 66 Mo. 660; R. S. 1909, secs. 2173, 2192; Canada v. Southwick, 33 Mass. 558; Sawyer v. Mason, 19 Me. 512; Jordan v. Gallop, 16 Conn. 535; Murfree on Sheriffs, sec. 947; Smith y. Perry, 18 Tex. 510; State ex rel. v. Nolte, 223 S. W. 408. (6) Sec. 2240, R. S. 1909, when correctly construed, in connection with, cognate statutes does not impose the penalty therein prescribed upon an officer, who, through an error of judgment and without any wrongful intent on his part (as here) fails to execute the writ delivered to him. In such cases he is only liable for the actual damages suffered by the party who claims to he injured. State ex rel. v.. Nolte, 223 S.'W. 408; Nash v Muldoon, 16 Nev. 404; Johnson v. Graham, 6 Cal. 195; McMahon v. Hall, 36 Tex. 59; Crooker v. Melick, 18 Nev. 227; Swenson v. Christoropherson, 10 S. D. 188; Shufeldt v. Barlass, 33 Nev. 785. (7) The sheriff, if he had sold, would have been subject to a suit for damages for casting a wrongful cloud on Mrs. Bidstrup’s title. State ex rel. v. Dickman, 124 Mo. App. 660: Harrington v. Utterback, 57 Mo. 519; Henman v. Westheimer, 110 Mo. App. 191.
   RAGLAND, C.

Defendant Tucker, at the times of the happening of the events- hereinafter referred to, was the Sheriff of Cooper County. His co-defendants are the sureties on his official bond. On December 14, 1917, relator caused a general execution in regular form to issue out of the office of the Clerk of the Circuit Court of Cooper County, upon a judgment that he had theretofore obtained in that court against one Bruce I. Bidstrup, directed to the defendant Tucker, as such sheriff. Upon receipt of the execution Tucker levied the same upon certain real estate in Cooper County and advertised it for sale. Thereafter he declared the sale off and released the levy. In this suit relator seeks to recover, under Section 2240, Revised Statutes 1909, the full amount of the execution because of the sheriff’s refusal to sell the property levied upon.

The petition, after alleging the execution of the bond, the obtention of the judgment against Bidstrup, and the issuance and delivery to the sheriff of the execution thereon, proceeds as follows:

‘ ‘ The plaintiff further states that at the time of delivery of said execution to the said defendant, Martin Tucker, he did, in obedience to the command of said writ, levy upon the following described real estate as the property of the said Bruce I. Bidstrup, to-wit: [Here follows the description.]
“That said defendant, Martin Tucker, as such sheriff advertised said property for sale in the Boon-ville Advertiser, a newspaper published and circulated in the County of Cooper, Missouri, which said sale was to have taken place according to the terms of said, notice on the 31st day of January, 1918, during the sitting of the Circuit Court of Cooper County, but plaintiff states that the said defendant, Martin Tucker, in violation of the conditions of the said bond and his duty as such sheriff and the command of said writ, unlawfully failed, refused and neglected to make such sale as he advertised and was required to do, and to have the money arising from said sale before the court on the return day of said writ, and to pay the same according to the exigency thereof;
“Plaintiff therefore states that the failure of the defendant, Martin Tucker, sheriff as aforesaid, to make said sale of said land so levied upon and advertised for sale by him was a breach of his said bond.”

The answer admits the execution of the bond sued on, the recovery of the judgment by relator and the issuance of the execution and its delivery to the defendant Tucker. It then proceeds in part as follows:

“Defendants aver a levy was made upon said property some time after the delivery of the execution, to-wit, on the 26th day of December, 1917, but they allege that it was not made in obedience to the command of the execution, but was inadvertently and wrongfully made, at the direction and procurement of relator herein, in this, to-wit, that the command of the execution was to make the judgment of the goods, and chattels, lands, and tenements of the said Bruce I. Bidstrup, whereas these defendants aver that the said lands, described in the petition in this canse and in said levy so procured to be made by relator, were not the lands and tenements of said Bidstrnp, the execution defendant, hut were the lands and tenements of another person, to-wit, of the wife of said Bidstrnp; . . . (defendants) aver he (Bruce I. Bidstrup) had no interest whatever therein subject to seizure or sale under execution against him. . . .
“And further answering, these defendants say that they and neither of them have any knowledge or information sufficient to form a belief as to whether or not said property so levied upon was of the value of $10,000, as alleged, but they aver the value of the interest of the said Bruce I. Bidstrup therein was nothing1 at all. ...
“Defendants in this connection further allege, that said sheriff after making said levy and advertisement, on the procurement and at the instance of plaintiff, as aforesaid, for the first time (and before a sale) was made aware of the fact that the execution debtor, said Bruce I. Bidstrup, did not own said real estate or any interest therein, and that the same was not real estate whereof said Bruce I. Bidstrup, or any person for his use, was seized in law or equity, and on being informed of said fact, and now here pleading the same as a full defense, he, acting in good faith and on the advice of his legal adviser, as sheriff released said levy as, aforesaid, and declined to make the sale and returns the execution unsatisfied.”

'The reply so far as pertinent to questions raised on the pleadings is as follows:

“Plaintiff denies that the defendant Martin Tucker did not make the levy on the land referred to in the petition and the answer, in obedience to the command of the execution against Bruce • I. Bidstrup defendant therein, and the plaintiff denies that the defendant Martin Tucker had any right or authority to determine for himself who was the owner in law or in equity of the land levied upon by him under said execution and plaintiff denies that the said Martin Tucker did not violate the conditions of his bond by determining the judicial question as to who was the owner in law or in equity of the real estate he levied upon and advertised for sale, and that his release of said property and his refusal to sell same as he had advertised to do were not breaches of said bond; and plaintiff denies that his refusal to sell same was a matter for him to determine except at his own risk and his codefendants,’ and plaintiff denies that said Martin Tucker faithfully discharged his duties as Sheriff of Cooper County in refusing to make said sale, and denies that said refusal was not a breach of the conditions of his official bond.
“Plaintiff denies that the said Martin Tucker did not know before he made said levy that Bruce I. Bid-strup claimed he was not the owner of the real estate described in the notice of sale published by him, and plaintiff further denies that said Martin Tucker acted in good faith; but on the contrary he acted in bad faith, and did not take independent and disinterested legal advice; that if he took any advice, it was from attorneys who represented either Bruce I. Bidstrup and his wife, or one of them; that the said Martin Tucker was advised by the relator’s attorney that it was not for him to determine whether he should make such sale or not; that that was a question that could be decided by the courts, only; and said Martin Tucker was also advised that if said Bruce I. Bidstrup did not own said real estate that said sale would convey no title to the purchaser or purchasers.’,’

The case was tried by the court without a jury. Before the introduction of any evidence, and in the course of the opening statement by plaintiff’s counsel, this was said:

“Under the law we have two remedies. First, to levy upon the property that we point out to the sheriff; make the levy, advertise and sell. Next, bring a suit to "set aside the deed conveying the property to the party who holds it in name. Those are the two remedies recognized by the law. That is all I want to state about that. Now, we have chosen this remedy. Next, we are not contending here, nor is it involved in this case, the title to this land, because had we expected to pursue that remedy we would have started that in the first instance, to determine the title of this property by proper legal procedure. We are standing upon the statute and the law as interpreted by the courts, that the sheriff having failed to sell this property according to the law, we claim the penalty of the bond. It is not our intention, is it, Mr. Cosgrove, to go into the title?
“Mb. Cosgrove: We can’t go into that at all.”

Plaintiff introduced evidence tending to show the issuance of the execution and its delivery to the sheriff, the sheriff’s levy on the land described in the petition, his publication of a notice of sale, his subsequent refusal to sell and his lack of good faith in connection therewith. Plaintiff’s evidence tended to further show that the land was worth from ten to twelve thousand dollars.

Defendant’s evidence tended to show: In February, 1910, Bruce I. Bidstrup and his wife, Lillian B., owned by the entirety 219 acres of land in Cooper County, eighty acres of which had been given Mrs. Bidstrup by her father. On that date and before the institution of the suit that resulted in the judgment against Bidstrup, he and his wife sold the 219 acres for .$13,200. Cf this amount about $7000 was used to pay the personal debts of Bidstrup, and $6000 was used to purchase the land that gives rise to this controversy. This land was bought of one Eichelberger and he by deed, dated February 7, 1910, conveyed the same to Bruce I. Bidstrup and Lillian B. Bidstrup.’ In May, 1910, Bidstrup and wife gave a deed of trust on the land to secure $3000 borrowed by him to meet his own personal liabilities; in December, 1911, he borrowed for his own use an additional $1000 and they gave another deed of trust. In December, 1915, after the lien of relator’s judgment had expired, Bidstrup conveyed, through a conduit, all of his interest in the land to his wife, she assuming and agreeing to pay the encumbrances. Defendant’s evidence also tended to show that the land was worth not exceeding $7,500, and further, that the sheriff in good faith released the levy because he concluded that Bid-strup had no interest in it subject to execution.

Plaintiff objected to all the evidence offered by defendants for the purpose of showing the title to the land levied upon to be in Mrs. Bidstrup, on the ground that such title was not involved in the case. In rebuttal plaintiff introduced some further testimony in support of its contentions as to the value of the land and the sheriff’s bad faith in refusing to sell it.

At the conclusion of the evidence plaintiff tendered declarations of law which, in effect, declared that on the pleadings and evidence the plaintiff was entitled to recover. They were refused by the court and one of like import given on behalf of defendant. Other declarations of law were given at the instance of defendants, but these need not concern us. If the mandatory one was properly given, the judgment should be affirmed; otherwise it will have to be reversed.

From a judgment for defendants plaintiff appeals.

I. Appellant claims that it was entitled to judgment on the pleadings; respondents make a like claim. Upon that ground each asked a peremptory instruction. No elaborate analysis of the pleadings is required to disclose the substance of their controversy. The pith of the matter is this: Plaintiff in its petition alleges that at the time of delivery of the execution to the defendant, Martin Tucker, he did in obedience to the command of the writ levy upon certain real estate as the property of the said Bruce I. Bidstrup, and thereafter refused to sell it. Defendants in tlieir answer, in response to this allegation, in effect say: “Yes, we admit that the sheriff did levy upon said real estate as the property of Bruce I. Bidstrup, but in truth and in fact it was not the property of Bruce I. Bidstrup, hut that of Lillian B. Bidstrup; that as soon as the sheriff discovered that fact, acting in good faith, he released the levy and refused to sell it; and we plead the fact that Bruce I. Bidstrup had no interest in said real estate subject to the execution as a complete defense herein.” Plaintiff in reply neither admits nor denies the averment that Bruce I. Bidstrup had no interest in the real estate, hut says, in substance, that such fact, if a fact, constitutes no defense to this action; that it was not for the sheriff to determine whose property it was; it was his duty to sell it and let the courts settle questions of title. The reply was in effect a demurrer to that part of the answer averring that Bruce I. Bid-strup had no interest in the real estate subject to the writ. That he had no such interest, therefore, stands admitted on the pleadings. This is not a strained construction of the pleadings, but comports entirely with the legal theory of appellant’s counsel, as disclosed both by the record of the trial and by their brief and argument in this court. They accepted battle on but two issues of fact; the value of the land and the good faith of the sheriff in refusing to sell after he had made the levy.

The gravamen of the cause of action pleaded is the failure of the sheriff to sell the real estate after he had levied upon it. The statute (Sec. 2240, R. S. 1909; now Sec. 1671, R. S. 1919) provides: “If any officer to whom any execution shall be delivered . . . shall take in execution any property . . . and he shall neglect or refuse to make sale of the property so taken . . . according to law, such officer shall be liable and bound to pay the whole amount specified in the writ.”

This statutory command to- sell according to law presupposes that the property taken in execution is subject to the writ; otherwise, it could not be sold according to law. If an officer through misapprehension levies upon the property of a stranger to the writ, or upon property of defendant which is exempt from execution, he certainly is not required by the statute, upon discovery of the fact, to commit the additional wrong of selling it. It does not require any acuteness of intellect or conscience to reach the conclusion that the only thing for him to do under such circumstances is to release the property from the levy. In this connection it should bo borne in mind that we are not considering what course the officer having the writ should pursue in a case where property has been levied upon as that of the judgment debtor, but which is claimed by a third party and that claim controverted by the judgment creditor. In this case it is admitted by the pleadings that the person against whose property the writ was directed had no interest at all in the property levied upon and that fact completely exonerates the officer from any liability for refusing to sell it.

II. Appellant’s learned counsel no doubt do not disagree with the proposition, abstractly considered, that an officer is not required to levy an execution upon property not subject to the writ, or, if he does so levy through mistake, he may release the property without incurring liability. They contend that there is no such question in this case. Their position, if we understand it, is this: A judgment creditor is entitled under the law, if he so elects, to cause an execution to be issued upon his judgment and to be levied upon lands that he deems to have been fraudulently convej'-ed by his debtor, and cause the same to be sold and himself become the purchaser at such sale, and upon receiving a sheriff’s deed to then bring suit in equity to set aside the fraudulent deed as a cloud upon his title; and in such case the officer charged with the execution of the writ it hound to levy upon and sell such lands as the judgment creditor points out, otherwise the latter would be deprived of the remedy. That the judgment creditor has a right to pursue the method pointed out by appellant is not an open question; yet, the right is not so absolute that it overrides all other principles of the law. As contended for by appellant, it implies an absolute control of the writ of execution by the judgment creditor. Generally speaking he is entitled to control it; but he cannot require the officer to do an unlawful act, or one not authorized by the command of the writ. For example upon an execution against A, he cannot require the officer to seize the property of B. But appellant says that questions with respect to title are judicial questions and ones that cannot be determined by the officer having the writ. In a proper proceeding they may become judicial questions, but when a sheriff, having an execution against A, is directed to levy upon property claimed by B, the question of whose property it is, becomes to him a very urgent and practical one. If the property in such case is real estate and no indemnifying bond can be demanded, there is little doubt but that the safer course for the sheriff to pursue is to follow the directions of the judgment creditor. However, if he has the hardihood to assert that the judgment debtor has no interest in the property and proves it when sued for a failure to levy or sell, that is the end of the matter. [State v. Koontz, 83 Mo. 323, 331; Coville v. Bentley, 76 Mich. 248, 250; Swan v. Gilbert, 67 Ill. App. 236, 245.] On the other hand, if he fails in his proof, he and his sureties may be mulcted to the extent of the amount specified in the writ. The crux of the matter, therefore, is this: The sheriff, if he have a liking for such undertaking, may, at the risk of having to pay^ the execution debt himself if he fails, voluntarily assume the burden of showing that the judgment debtor has no interest subject to execution in the real estate. ■upon which, he is directed to levy. Whether from the standpoint of himself and his sureties such action' is wise, is another question.

III. The issue tendered by the answer, respecting the title to the land levied upon did not, as intimated by appellant’s counsel during* the course of the trial, involve questions solely of equitable cognizance. If the conveyance from Bidstrup to his wife was made with intent to defraud creditors, it was as to them “clearly and utterly void’! (Sec. 2887, R. S. 1909); as against them it did not convey even the legal title — it conveyed nothing at all. It would not have been necessary, therefore, for the plaintiff, in response to the averments of the answer that the land was Mrs. Bidstrup’s and Bidstrup had no interest therein, to have pleaded in reply such matters as would have been necessary in a bill in equity to set aside the conveyance on the ground of fraud; a simple traverse of those averments would have effected a join-der of the issue of title or no title in Bidstrup, and under the issue so joined all evidence touching the alleged fraudulent character of the conveyance would have been admissible. [Littick v. Means, 195 S. W. 729, 730; Slattery v. Jones, 96 Mo. 216; Snell v. Harrison, 104 Mo. l. c. 188, 189.]

IY. Had it been determined, under issues properly framed, that Bidstrup had an interest in the land levied upon subject to execution, the value of that interest and the good faith of the sheriff in releasing the levy would have been factors in determining the amount of damages recoverable by relat- or; in view of the admissions made by the pleadings, however, those matters are wholly irreleyant. [State ex rel. Nolte v. Reynolds, 223 S. W. 408.]

It follows from the views herein expressed that the judgment of the trial court should be affirmed. It is so ordered.

Brown and Small, GO., concur.

PEE CUEIAM:

The foregoing opinion of Eag-lawd, C., is adopted as the opinion of the court.

All of the judges concur, except Elder, j., not sitting.


author: GRAVES, J.

text:
    MARIE WORRALL DWYER, SPENCER WORRALL, CARRIE WORRALL DAUGHERTY, JOSEPHINE WORRALL O’CONNELL, JOHN WORRALL and CORNELIA M. WORRALL, Appellants, v. ST. LOUIS UNION TRUST CO., a Corporation.
    Division One,
    March 5, 1921.
    1. ACTIVE TRUSTS: Life Tenant: Contingent Remaindermen: Termination. Where the legal title to property is vested by will in a trustee of an active trust for the benefit of a named person for life and after her death for the benefit of her children “living at the time of her death,” such trust will not be terminated by a court of equity at the suit of such life tenant and all her living children, even though the evidence shows she is past the age of child-bearing, inasmuch as such children are mere contingent re-maindermen and may never have a vested interest in the estate.
    2. -: -: -: -: Testator’s Expressed Intention. The testator had some valid reason for creating this active trust. His desires are clearly expressed in his will which created the trust, and such desires should be executed accordingly and equity will not interfere with the execution of them.
    Appeal from St. Louis City Circuit Court. — Hon. Charles B. Davis, Judge.
    Affirmed.

      Arthur J. Freutnd and Louis B. Sawyer for appellants.
    (1) Eegardless of the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands, and when that demand has been fully satisfied, and although the trust may not have ceased by expiration of time, .yet if all the parties who are or who may be interested in the trust property are in existence and áre sui juris, and .if they agree thereto, a court of equity will decree the termination of the trust. 39 Cyc. 99; Beach on Trusts, secs. 705, 761; 2 Am. Law Rep.'579; 2 Perry on Trusts (6 Ed. ), pp. 1497, 1499; Peugnet v. Berthold, 183 Mo. 61; Smith v. Smith, 70 Mo. App. 453; Rector v. Dalhy, 98 Mo. App. 196; Newton v. Rehen-bach, 90 Mo. App. 657; In re Stafford’s Estate, 258 Pa. St. 595; Inches v. Hill, 106 Mass. 575; Smith v. Harrington, 4 Allen (Mass.) 566; Simmons v. Trust Co., 136 Minn. 357, 162 N. W. 450, L. R. A. 1917 E, 736. (a) A court of equity may require a trustee to convey to the cestuis que trustent property which is without the territorial jurisdiction of the court and of which a decree would not divest it. Donaldson v. Allen, 182 Mo. 626. (2) Where a woman is past the child-bearing age, and where a trust estate is to be divided and paid over to her children living at her death, and where the mother and all of the children, being sui juris, join in a petition to have the trust terminated, they shall be entitled to a decree for the termination of the trust estate. Johnson v. Beauchamp, 5 Dana, 70; Appeal of Gowen, Trustee, 106 Pa. St. 288; Male v. Williams, 48 N. J. Eq. 33; Reynolds’ v. Reynolds, 1 Dick (Ch. 1764) 374; Ex parte Catherine Brown, 7 Ir. Eq. 484; Browne v. Pringle, 4 Hare, 124, 14 L. J. Ch. (N. S.) 121, 8 Jur. 1113; Leng v. Hodges, Jac. (Ct. Ch.) 585; Dodd v. Wake, 5 De G. 226, 21 L. J. Ch. (N. S.) 456, 16 Jur. 776; In re Dawson, 39 Ch. Div. 155; White v. Edmond, 1. Ch. Law Rep. 570. (3) The common law of England governs in this case. Laws 1917, p. 324, sec. 8047; Lindell v. McNair, 4 Mo. 380; Brandon v. Carter, 119 Mo. 572; State v. Rader, 262 Mo. 129.

      Bryan, Williams & Gave for respondent.
    (1) The estate in remainder, created by the will of Peter Conrad, and given to the children of Cornelia Worrall “living at the time of her death,” is not vest-, ed, but only contingent. DeLassus v. Gatewood, 71 Mo. 371; Dickerson v. Dickerson, 211 Mo. 483; Emerson v. Whillesam, 55 Mo. 258; Collins v. Crawford, 103 S. W. '537; McFarland v. Bishop, 222 S. W. 143. All of her children may predecease Cornelia Worrall, in which event the remainder, after the life estate of Cornelia Worrall, will go to the heirs at law of the testator, Peter Conrad, and none of the parties hereto will ever have a vested interest in the trust estate. All of the parties interested in the trust are not, therefore, parties to this suit. (2) This trust is an active one. And, while it may he that a court will terminate a dry trust where the purpose of the trust has been fully accomplished and all of the parties interested in the trust are sui juris and agree thereto, no court will so terminate (a) a trust whose purpose has not been fully accomplished or (b) a trust where all of the parties having a possible interest do not agree. Shelton v. King, 229 IT. S. 90; Smith v. Smith, 70 Mo. App. 448; Upham v. Planking-ton, 152 Wis. 275, 2:83; Claflin v. Claflin, 149 Mass. 19. (3) This will, providing that the trustee shall pay all “income to my daughter, Cornelia, for the maintenance and support of herself and family,” clearly discloses an intent on the part of the testator to limit the use, and the right to the use, of such income, to the .specific purpose of maintaining and supporting Cornelia Worrall during her life, and, such being the case, the law will imply a restraint against the right of alienation and anticipation of the income by Cornelia Worrall. Hig-bee v. Brockenbrough, 191 S. W. 994; Maxwell v. Grow-ney, 213 S. W. 427; Gibson v. Gibson, 219 S. W. 563. (4) A trust, as here, to hold property during the life of a woman and to distribute it among her children at her death, cannot be- terminated, at the instance of herself and her living children, merely because she has reached an age after which women do not usually bear children and has infirmities which, in the opinion of 'physicians, will prevent her from having other children. This, for the reason that the court, in such a suit, will always presume a possibility of further children. Thomas v. Thomas, 149 Mo. 435-6; Rozier v. Graham, 146 Mo. 352; Ennis v. Eager, 152 Mo. App. 497; Elizabeth May v. Trust Co., 48 L. R. A. (N. S.) 865; Ricards v. Safe D. & T. Co., 63 L. R. A. 145; Bearden v. White, 42 S. W. (Tenn.) 476; Fletcher v. Trust Co., 187 Pac. 425; In re Doug'an, 139 Ga. 351, 48 L. R. A. (N. S.) 868; Bigley v. Watson, 38 L. R. A. 679; Garner v. Dowling, 58 Tenn. (Heist.) 49; Quigley’s Trustee v. Quig’lev, 161 Ky. 85; Reeves v. Simpson, 182 S. W. 68; Bowlin v. Hospital Co., 31? R. I. 289; Allen v. Allen’s Trustee, 133 S. W. (Ky.) 543; Bailey’s Trustee v. Bailey, 97 S. W. (Ky.) 810 ; Towle v. Deiano, 144 Mass. 95; Flora v. Anderson, 67 Fed. 182; List v. Rodney, 83 Pa. St. 483; Lawson on Presumptive Evidence, sec. 364; Wigmore on Evidence, 2523.
   GRAVES, J.

By his will, Peter Conrad, created a trust in favor of his daughter, Cornelia M. Worrall. Conrad had but two children, a son and a daughter. At least Ibis seems to be the fact from the face ^ ma(je- One-half of his property he devised to his son, and the other half was placed in trust to thet daughter, Mrs. Worrall. That portion of the will, here involved, reads:

“The other one part so partitioned and divided and one-half of all other property, goods and moneys, I do give and bequeath to the St. Louis Trust Company of St. Louis, Mo., In Trust, However, For The Under-Mentioned Purpose, to-wit:
“To pay over all income, earnings and profits arising from snefi one-lialf of my property so bequeathed to my daughter Cornelia, For The Maintenance And Su-P-port Of Herself And Her Family; and after her death the said property, and the undisposed of earnings and increase thereof to be divided equally, share and share alike, among the children of my said daughter Cornelia, Living At The Time Of Her Death if the youngest of her said children has reached the age of 21 years, but if the youngest of said children has not reached that age, then this trust shall continue In Favor Of And For The Support Maintenance And Education Or Advancement In Life Until The Youngest Of Said Children Becomes Of That Age, Then To Be Divided Equally Between Those Living At That Date, male and female, share and share alike.”

Conrad died in 1900, and the St. Louis Trust Co. began the administration of the trust. In 1902 the St. Louis Trust Company changed its name to the St. Louis Union Trust Company, and by that name the trustee has continued its duties to this date., The present suit is one to determine that trust,- and the plaintiffs are Mrs. Worrall, and her five children, and the defendant, the present trustee of the estate. Mrs. Worrall had but five children, and they are all adults, and living and to them she had conveyed (or attempted to convey) all her interest in the trust property. These conveyances are in this record. The trust property consists of some land in Ste. Genevieve County, Missouri, some land in Mc-Cracken County, Kentucky, and some $8,500 in personal securities and cash, in the hands of defendant, as trustee.

In behalf of plaintiff it was shown that Mrs. Worrall was 56 years old, and had long since reached and passed that period in a woman’s -life, commonly called the “change of life.” By a physician it was shown that she could bear no more children, for this and other physical reasons. No evidence was introduced by defendant, and upon those facts, the court entered a judgment or decree in favor of defendant, from which plaintiffs prose-. cnted this appeal. The case is largely one of law, although it might be added that there is no evidence, showing the procreative organs of Mrs. Worrall to be diseased, or injured, save and except by the flux of time on the life of a woman as above detailed.

I. In this case there is urged the interesting question, as to whether or not, from a legal standpoint, Mrs. Worrall has passed the child bearing age, and much legal lore has been called to our attention. With this question we shall not deal, because, in our judgment, the case is, and can be, fully determined upon questions which precede this in the orderly disposition of vital questions. In Blackstone’s Commentaries, it has been said: “A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties, even though the donees be, each of them, a hundred years old.” [2 Blackstone’s Commentaries, 125.] The later court views upon • this question we shall not review. Other matters settle the case, and a review of this question would be a'waste of energy.

II. The status of Mrs. Worrall’s children under the will of Conrad is one of the material questions. A reading of the will shows that the legal title to the property passed to the St. Louis Trust Company, now the St. Louis Union Trust Company. This title was impressed with a trust “to pay over all income, earnings and profits to my daughter Cornelia, for the maintenance and support of herself and family.” When this trust was fully executed, by the death of Mrs. Worrall, and the other provisions therein expressed, the 'corpus of the estate was to go to the children of Mrs. Wor-rall, (living at the time of her death) or when the youngest reached the age of 21 years. The'qualifying terms “living at the time of her death” makes the children of Mrs. Worrall merely Contingent remaindermen under the mil of the grandfather. Their estate was dependent upon the contingency of tlieir survival of the mother. They were, under the rulings of this court contingent remaindermen, and no more. [DeLassus v. Gatewood, 71 Mo. 371; Dickerson v. Dickerson, 211 Mo. 483.]

It has been said that remainders are the outgrowth of wills or contracts, and reversioners come from the operations of law. In this case the interest given to the children of Mrs. Worrall might never materialize. Whilst they are all living now, all might predecease the mother, and then there would be reversioners by operation of law. In other words the beneficial interest in the trust property would go to the lawful heirs of Peter Conrad, and the trustee of this trust would have to account to these reversioners for the corpus of this estate. This is important in view of the fact, that, in equity, attempt is being made to terminate this active trust, in the interest of parties who might never have the slightest interest in the trust estate. Their present interest is purely contingent, and the contingency may not happen: i. e. they may not be living at the death of Mrs. Worrall.

By the brief we are cited to 39 Cyc. p. 99, where the following general rule is thus stated:

“By virtue of its supervisory jurisdiction over trusts and trustees, a court of equity has power, in a proper case, to terminate an express trust, in whole or in part, even before the expiration’ of the term for which it was created, although, in such case, exceptional circumstances must exist. The court will exercise this power and decree a termination when all the objects and purposes of the trust have been accomplished, the cestuis que trustent are all sui juris, and application is made by all of them. On the other band, the court will not decree a termination when some of the cestuis que trustent do not consent, or where the trust is still an active, con-tinning one, with some of its purposes unaccomplished and not shown to be.impossible of accomplishment.”

We have no fault to find with this general rule. There are cases in which courts have terminated trusts in advance of the time fixed in the trust instrument. The courts have done so with discrimination, and caution, but if the cases cited to support the general pronouncement be examined, it will be found that the facts do not fit the case at bar.

Suppose in the instant case under the facts alleged, a decree should be entered terminating the trust, and this property be turned over to the five present children of Mrs. Worrall where would the trustee stand at the death of Mrs. Worrall; if all of her children had predeceased hers. The proof shows that there are several grandchildren, and these, as the reversioners might malee claim for the estate. There is no vested estate in their parents, and if their parents all predecease the grandmother, they take from the grandfather. This contingency alone is sufficient to justify the judgment nisi. They are not parties to the instant suit, and have not consented in anyway to a divesting of their reversionary interests.

III. But there is another reason equally as good. Peter Conrad had some valid reason for creating this active trust in the interest of his daughter. It appears that she had passed through the long-to-be-remembered St. Louis cyclone. Her nervous shock, occasioned thereby, seems to have lingered with her. Conrad may have had this in view. Pie might have had in view the habits and make-up of her then husband, or may have looked with doubt to a future husband. Just what may have been the compelling force which resulted in this trust in favor of his daughter, we need not further speculate. He may have doubted her ability to withstand the appeals of her children for property, and he may have thought, that, in old age, she would not be as well cared for as she would be by the active trust, which he was creating in her favor. For us, it should suffice to say that Peter Conrad’s desires have been clearly expressed in the will, and the trust thereby created. He preferred that a trustee of his own naming should husband his property, and see that his daughter got the profits thereof, from the hands of that trustee, to the day of her death. The desire of the old man as expressed in his will should be executed, and equity will not interfere with the carrying out of his plain desire. This is an active, live trust, and has not been fully accomplished, and will not be, until the trustee has garnered the profits of the estate to the death of the daughter, and paid them out, as per the directions of the will. Upon either of the two theories, the trial court was right, and its judgment is affirmed.

All concur.