author: WOODSON, J.

text:
    PRIDDY et al., Plaintiffs in Error, v. MACKENZIE.
    Division One,
    June 29, 1907.
    1. CHANGE OF VENUE: Untimely Application. Wkere tke record shows that plaintiffs knew, long before the filing of their application for a change of venue, all the facts stated therein, and could have filed it sooner, the application should be denied.'
    2. -: -: Knowledge of Attorney. And knowledge of applicants’ attorney of the facts stated in their application for a change of venue was their knowledge.
    3. -: Interested Judge. Though the interest of the judge in the result of the litigation be never so small or trifling, it is sufficient to disqualify him to sit in the case.

      4. -: -: Abstract of Title: Opinion by Partner. Where it is shown on the trial that a member of the firm of lawyers, of which the trial judge was at the time a member, gave a written opinion to defendant that the abstract showed a good title in defendant’s grantor and on the faith of that opinion and certificate defendant bought the land, the judge, within the meaning of the statute, is “interested” in the cause of action, to have the deed set aside, and should grant a change of venue, whether he had any knowledge of the examination made and opinion given by his partner or not. Por, if defendant should lose and it were afterwards shown that his partner was negligent in the investigation of the title, the firm, and consequently the judge who was a member thereof, though without knowledge of the opinion and examination, would be liable in damages.
    5. CONSOLIDATION OF SUITS: Ejectment. It is error for the court to consolidate nine suits in ejectment based on the disaffirmance of a deed made by minors, where the defendants are different, the evidence different, and defendants employ different counsel, although the plaintiffs in each are the same and have the same attorneys.
    Error to Jackson Circuit Court.— Hon. James Gibson, Judge.
    Reversed and remanded.

      Samuel P. Forsee, Wm. G. Forsee and H. H. Mc-Gluer for plaintiffs in error.
    (1) The conclusions of law drawn by tbe court absolutely ignore tbe rulings of tbis court in tbe Iinvill-Greer case, where every salient and dispositive fact herein involved was determined by Division Two of tbis court. Linvill v. Greer, 165 Mo. 380. (2) When tbe fact developed at tbe trial of tbe case that Judge ' Gibson bad been of counsel and tbe firm to which be belonged bad passed judgment on tbe title in question, be was disqualified to proceed further in tbe trial of tbe cause. Tbe development of that fact nullified any further procedure taken by respondent in tbe cause.. Tearce v. Atwood, 13 Mass. 339; S-tockwell v. Town Board, 22 Mich. 345; Gravel Min. Co. v. Keyser, 58 Cal. 315 ; Hillbome v. Campbell, 23 Pae. 122; East Rome Town Co. v. Cathran, 81 Ga. 367; Moses v. Julian, 45 N. H. 58; Davisi v. Allen, 11 Pick. 466; Templeton v. Giddings, 12 S. W. 851. (3) The refusal by Judge Gibson to allow plaintiffs a change of venue was reversible error. The cases should have been sent for trial to some other county. If we are mistaken in this they should have at least been transferred to some other division of the same court. State v. Flourney, 160 Mo. 324; State v. Lehman, 182 Mo. 459; Newcomb v. Railroad, 182 Mo. 713; Dawson v. Dawson, 29 Mo. App. 521; State ex rel. v. Fort, 178 Mo. 519; Lacey v. Barrett, 75 Mo. 469. (4) The court erred in trying all the cases as if consolidated. They were consolidated in substance if not in fact. Sec. 750, R. S. 1899. The court’s failure to make an order consolidating the cases was an evasion of said section 750, and an unwarranted deprivation of plaintiffs’ right to have a separate trial of their eases. At common law, before there could be a consolidation of actions it was necessary that there be the same plaintiffs. Second, the same defendants. Third, the action must be such as can be joined. 4 Ency. Pld. & Prac., 674; Knight v. Ogden, 3 Tenn. Oh. 409. In England the right to consolidate is denied to exist in the chancery court. Foreman v. Blake, 7 Price 654. * When the same defense does not apply, consolidation will be refused. 4 Ency. Pld. & Prac., 679. Neither by common law nor under the statutes can cross-actions' be consolidated. Harns v. Sweetland, 48 Mich. 110; 4 Ency. Pld. & Prac., 696; Story, Eq. PI. (6 Ed.), sec. 287; Knight Bros. v. Ogden Bros., 6 O. L. J. 27.

      G. O. Tichenor, O. H. Dean and Lathnop, Morrow, Foco & Moore for defendant in error.
    (1) The court properly overruled the application for a change of venue. Secs. 821-822, R. S. 1899; 3 Am. and Eng. Ency. Law (2 Ed.), 320; Bank v. Hoeber, 88 Mo. 37; State to nse v. Matlock, 82 Mo. 455; Wolff v. Ward, 104 Mo. 127; Railroad v. Holladay, 131 Mo. 440; Bartley v. Railroad, 148 Mo. 124; Cole v. Ar-' mour, 154 Mo. 333; McCormick v. Railroad, 154 Mo. 191; Feary v. Railroad, 162 Mo. 75; State v. Blitz, 171 Mo. 530; State v. Lehman, 182 Mo. 424; State ex rel. v. Evans, 184 Mo. 632; Endaley v. Railroad, 186 Mo. 399; Guy v. Railroad, 197 Mo. 174; Priddy v. Boice, 99 S. W. 1055; State ex rel. v. Lnbke, 29 Mo. App. 555; Smith v. Railroad, 31 Mo. App. 135; Summers v. Ins. Co., 45 Mo. App. 46; Walker v. Evans, 98 Mo. App. 301. (2) Judge Gibson was not disqualified to try the case. Secs. 819, 1679, R. S. 1899; 17 Am. and Eng. Ency. Law (2 Ed.), 733, 741; 23 Cyc., 576, 578, 596; Bowman’s case, 67 Mo. 146; State v. Moore, 121 Mo. 514; DeHatre v. Edmunds, 98 S. W. 744; Bank v. Fitzsimons, 2 Binn. (Pa.) 454; Taylor v. Williams, 26 Tex. 583; Railroad v. Ryan, 44 Tex. 426; New Odorless Sewerage Co. v. Wisdom, 30 Tex. Civ. App. 244; King v. Sapp, 66 Tex. 519; Railroad v. Mackney, 83 Tex. 410; Cleghorn v. Cleghom, 66 Cal. 309; Wolfe v. Hines, 93 Ga. 329; In re Nevitt, 117 Fed. 448; Keefe v. Bank, 177 N. Y. 305; Ex parte State Bar Assn., 92 Ala. 113; Ellis v. Smith, 42 Ala. 349; Peck v. Freeholders of Essex, 20 N. J. L. 457; Grigsby v. May, 84 Tex. 240; Oakland v. Oakland Water Front Co., 118 Cal. 249; Foreman v. Marianna, 43 Ark. 324; State ex rel. v. Maio, 58 Atl. 173; State ex rel. v. Woodson, 86 Mo. App. 253; Heinilen v. Heilbron, 97 Cal. 101; Philadelphia v. Cox, 64 Pa. St. 169. (3) The court committed no error in trying the cases together. Thompson, Trials, sec. 210; Ins. Co. v. Hillmon, 145 U. S. 285; Den v. Fen, Halst. 335; Witherlee v. Ocean Ins. Co., 24 Pick. 67; Jackson v. Stiles, 5 Cow. 282; Springfield v. Sleeper, 115 Mass. 587; Wiede v. Ins. Co., Fed. Cas. No. 17617.
   WOODSON, J.

The plaintiffs instituted this suit in the circuit court of Jackson county, Missouri, against defendant, seeking to have a certain deed of conveyance, described in the first count of the petition, set aside and held for naught, because of the alleged claim that the grantors were, at the time of its execution, minors, and had, after attaining their majority, dis-affirmed the same, and ask that it be declared null and void, and because it casts a cloud upon the title to their lands.

The second count was an ordinary petition in ejectment, asking for the possession of the land described in the deed and damages for the unlawful withholding the possession from plaintiffs, and for the monthly rents and profits.

The first count was substantially as follows: Thomas Jones departed this life in 1843, intestate, owning, among other, the land in controversy, and left surviving him his widow, Martha Jones, and nine minor children; two of those children were Nancy and Elizabeth Jones; in 1850 the former married James J. Priddy, and the latter, in 1854, William Linville. At the death of Thomas Jones he owned a large tract of land in said county, and in proper time and in due form fifty-odd acres of it was assigned and set off to his widow Martha Jones, as her dower, a portion of which are the lots in question. The widow died in 1868, and James J. Priddy died in July, 1869, and his wife, Nancy, departed this life on April 10th, 1892, and Elizabeth Linville died November 3rd, 1892. Martha Jones occupied the dower land until death, and on May 5th, 1853, Nancy Priddy and her husband and Elizabeth Jones, then minors, executed a deed to Lott Coffman in which they attempted to convey all their interests, being two-ninths of the fifty-odd-acre tract, to said Coffman; that long before the institution of this suit, the plaintiffs, who are the lineal descendants of Nancy Priddy and Elizabeth Linville, disaffirmed said deed and gave record notice thereof; that both Nancy and Elizabeth also disaffirmed said deed prior to their demise ; that defendant, through mesne conveyances from Coffman, had acquired the legal title and was in the possession of lots one to ten, both inclusive, of Independence Avenue Addition, which are a part of the same lands described in the Priddy and Jones deed to Coffman of May 5th, 1853; that in 1852 James J. Priddy conveyed his estate, by the curtesy, to said Lott Coffman.

' The prayer is for cancellation of the deed to Coffman, and for the ascertainment and determination of the interests of all parties to the suit in and to the land in controversy, and for general relief.

The defendant’s answer was:

First: A general denial.

Second: The thirty-year Statute of Limitations.

Third: That Nancy Priddy and Elizabeth Jones were, each, over twenty-one years of age on May 5th, 1853, when they executed the deed to Coffman, and that said deed was valid and conveyed all their right, title and interest in and to said land to Coffman, and that he had lawfully acquired Coffman’s interests in said lots.

Fourth: An estoppel, and

Fifth: A prayer for the cancellation of a power of attorney executed by James J. Priddy and Nancy Priddy, his wife, to S. P. Forsee, authorizing him to sell certain property, including the lots in controversy, and to sue and recover the possession of the same.

Sixth: And that the deed, dated May 5th, 1853, from Nancy Priddy and husband, and Elizabeth Jones to Lott Coffman, be adjudged valid and in full force and effect, and sufficient to and did convey all their rights, title and interest in and to said land to said Coffman, and for general equitable relief.

The record in this ease shows that there were eight other suits pending at the time, in the various divisions of the circuit court of Jackson county, instituted by these same plaintiffs but against different defendants, all of whom were in possession of different tracts or portions of the land conveyed by Nancy Priddy and husband and Elizabeth Jones to Lott Coffman on May 5th, 1853, all involving the validity of said deed. The answers in all of those cases were substantially the same as the one in this case. This and one other of the nine cases were pending in division number one of said court, which was presided over by Judge Gibson, and the other seven were pending in the other divisions thereof. On June 25th, 1908, all of the cases, over plaintiffs’ objections, were transferred to division one of said court; that on June 26th, the next day, plaintiff filed an application for a change of venue in each case. The one filed in this case, formal parts omitted, was as follows:

“Come now the plaintiffs in the above-entitled cause and move the court to grant them a change of venue thereof to some other county than Jackson county, and assign as causes therefor the causes set out in the affidavit, hereinafter made and attached, and made a part of this application.

“S. P. Forsee, Attorney for Plaintiffs.”

“State of Missouri, County of Jackson, s,s.

“Before the undersigned notary public within and for the county and state last aforesaid, this day personally appeared Mattie Linville and W. P‘. Linville, who being by me first duly sworn on oath say they are two of the plaintiffs in the above-entitled cause, and make this affidavit in behalf of themselves and of all of said plaintiffs.

“The affiants have just cause to believe, and do believe, that none of the plaintiffs can have a fair and impartial trial in said cause before either the Honorable James Gibson, the Hon. James H. Slover, the Hon. W. B. Teasdale, the Hon. Shannon O. Douglass or the Hon. Andrew E. Evans, judges of division one, two, three, four and five, respectively, of the circuit court of Jackson county, Missouri, because said judges and each of them is prejudiced against said plaintiffs and each of them, and because the opposite party, defendant herein, has an undue influence over the minds of each of said judges.

“Third: Because the inhabitants of said county are prejudiced against each of the said plaintiffs.

“Fourth: Because the said defendant herein, the opposite party herein, has an undue influence over the inhabitants of the said county; that affiants obtained their information and knowledge of the exercise of the undue influence of the said defendant over the minds of the said judges and each of them, on the 25th day of June, 1903; that affiants obtained their information and knowledge that the opposite party, the defendant herein, has an undue influence over the inhabitants of the said county on the 25th day of June, 1903.

“Affiants further state that they have received on this 25th day of June, 1903, after four o’clock p. m., further and additional evidence and information of each of the causes alleged as aforesaid in this application for a change of venue in this cause, and that they believe if said cause is tried in said county, it would be impossible for any of the plaintiffs in this cause to have a fair and impartial trial in said cause before any of the judges above named or any other judge that might be elected or agreed upon, or before any of the inhabitants in said county, for the reasons aforesaid.”

All of said applications were continued until June 30th, same month. On the last-mentioned date the court overruled each and all of them, to which plaintiffs duly excepted.

Defendants then announced ready for trial in all the cases. Plaintiffs stated that they did not understand that they were set down for trial at that time as there was a demurrer pending in each case to the cross-hill.

“The Court: I will overrule the demurrers right now. ’ ’

■ Plaintiff replied that the court set the applications for a change of venue for to-day and that the demurrers would be taken up on law day.

The Court: I did not say I would not hear the cases to-day. I told you that I would hear anything that came up in reference to the cases.”

Plaintiffs in reply asked, “Are we trying one or all of them?” . The Court: “I am going to try all of them.” Plaintiffs objected to the trial of these cases at that time, because there were demurrers pending to each of the cross-bills, and plaintiffs were surprised at the action of the court. And counsel for plaintiffs stated: “The plaintiffs being surprised at the action of the court in overruling the applications for a change of venue and because the plaintiffs did not understand that the cases were set down to be tried on the merits at this time, and there being demurrers pending in the cases, and as this is not a law day on which such demurrers should be taken up under the rules of the court, we ask your honor to give us a short time to prepare applications• for continuance in the cases.” Upon the consideration of the matter the court gave the plaintiffs until 1:30 to prepare an application for a eontinnance. At 1:30 p. m. the following occurred:

“Mr. Forsee: The plaintiffs object, to the court trying all of these cases at one time or to a consolidation of these cases because there is nothing in the law providing for a consolidation thereof and because the parties are not the same, nor is the evidence.

“The Court: The court says that he will hear them all together, but keep a separate record, there being some points in each case peculiar to it and those points will be governed respectively, and the testimony common to all the cases will be heard at one time.

“Mr. Forsee: My opinion is these are cases that cannot be heard that way and I want to make this record objection thereto. Mr. Moore says he prefers to offer testimony common to all cases first and after-wards testimony peculiar to each particular case.

“The Court: Lét it be so ordered.

“The court overrules Mr. Forsee’s objection and plaintiffs except.”

Plaintiffs then filed and presented their motions for a continuance in all of said cases, and after having considered same the court overruled them, to which action of the court the plaintiffs duly excepted.

Plaintiffs then asked permission of the court to file amended answers to the cross-bills, which request was by the court refused, and plaintiffs duly excepted.

Defendants then announced ready for trial upon all of the cross-bills and introduced evidence tending to prove and establish allegations thereof, and rested their cases.

That during the progress of the trial the evidence showed that the witness, W. D. McLeod, was a member of the firm of Warner, Dean, Gibson & McLeod, engaged in the practice of law at Kansas City, Missouri; that the Gibson mentioned was the same Judge James Gibson who later tried this cause; that during the existence of that copartnership, James MacKenzie, the defendant in this case, was a client of that firm, and at his request Mr. McLeod examined the title to the lots involved in this suit, and that the deed from Nancy Priddy and husband and Elizabeth Jones to Lott Coffman, dated May 3, 1853, being the same deed now in question, formed a link in the chain of that title; that he passed upon the title and gave a written opinion to Mr. MacKenzie, holding the title was good, signed by the firm name; that upon the strength of that opinion Mr. MacKenzie purchased the property and paid McLeod a fee for his services for making the examination, and that the firm received the fee so paid to Mr. McLeod. It was not contended that Judge Gibson knew of the services rendered by McLeod to MacKenzie until McLeod testified to the fact upon the witness stand. When that fact appeared in the trial, counsel for plaintiffs • presented to the court a written protest, reciting those facts, duly verified, against Judge Gibson’s further trial of the cause, and prayed for a change of venue to some other circuit. The court refused the second application for a change of venue, and placed his refusal upon the ground that he knew nothing whatever of the services rendered to MacKenzie by McLeod in the firm name until McLeod testified to the fact in the trial of this case, and for that reason continued to try the case. Neither the plaintiffs nor their counsel had any knowledge of those facts prior to the time McLeod testified to them.

To the action of the court in refusing said change of venue, and in proceeding with the trial, plaintiffs duly excepted.

Plaintiffs then renewed their objections to the court’s hearing any further evidence in the cause, because it should have granted the change of venue, and that it had no power to try the said nine eases together, which objection was by the court overruled, and the plaintiffs duly excepted.

Thereupon, the plaintiffs offered evidence to disprove the allegations of the cross-bills.

The court then gave in behalf of defendants seven declarations of law. To the giving of which plaintiffs duly objected and excepted.

From the view we take of the case, it is unnecessary to incorporate them in this statement.

The court then found the issues for the defendants in all the cases, and rendered a separate decree in each of the nine cases in conformity to the prayer contained in each cross-bill. To which findings and decrees the plaintiffs duly excepted and filed their motions for a new trial and in arrest of judgment in each case, which were by the court overruled and plaintiffs duly excepted, and have sued out a writ of error from this court, and the cause is now here for review.

I. There are many questions presented by the record in this case, but we will consider but two of them, because the other points should be passed until the plaintiffs have an opportunity to fairly present their side of them to the trial court, which was not and could not have been done in a trial of all nine of the cases together, and in the condition the record discloses they were in at the time of trial. The points fairly before this court are, first, the application for the change of venue, and, second, the right of the trial court to try all of the cases together. We will dispose of those questions in the order presented.

The application for a change of venue was filed on the 26th of June, the day the cases were called for trial, and continued until the 30th. Defendants contend that the application was not filed in time, and for that reason the court properly denied the change. The record upon that question discloses that in the case of Priddy v. Boice, the plaintiffs being the same as those in this case, and involving the same issues, and for the recovery of a portion of this same tract of land, long prior to the filing of this change of venue, a similar application had been filed disqualifying Judge Gibson, the same judge who tried this case, and that he granted the change prayed for in that case. That application shows conclusively that the plaintiffs were cognizant of all the facts stated in this application long before this one was filed; but plaintiffs try to escape the effect of that knowledge by contending that W. P. Linville was not a party to the first suit. The record in this case shows that his name appeared as one of the plaintiffs in the caption of the application filed in that case. No other portion of the record in that case is before us, so we must presume he was a party to that suit and had knowledge of all the matters stated in that application.

We are of the opinion that the court did not abuse its discretion by overruling this application for a change of venue, because it was not filed in time. [Wolff v. Ward, 104 Mo. 127; Railroad v. Holladay, 131 Mo. 440.]

The change of venue was also properly refused, because counsel for plaintiffs knew ever since the filing of the application for- a change in the Boice case, that Judge Gibson and the other judges were prejudiced against his clients, as shown by that application, and his knowledge as their attorney was their knowledge. In view of that fact the application was not filed in time. [Bank of Commerce v. Hoeber, 88 Mo. 37.]

But there is a more serious question presented by the protest and the second application for a change of venue, made and filed by the plaintiffs during the trial of the cause, based upon the alleged interest of Judge Gibson in the cause as shown by the evidence of McLeod.

The statute governing this question is as follows:

“If the judge is interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party, unless all the parties in the canse consent that snch judge may sit on the trial thereof, or a special judge for the trial thereof he agreed upon by the parties, or elected in the manner provided by law.” [R. S. 1899, sec. 819.]

The question here presented is, was Judge Gibson interested in the cause within the meaning of that statute? If he was so interested, then the change of venue should have been granted under that showing to some other division of the court; but if he was not, then the application was properly denied.

If plaintiffs should succeed in this litigation and recover the property in controversy from MacKenzie, and if it should hereafter be shown that McLeod, a member of the firm of Warner, Dean, Gibson and McLeod, was negligent in the investigation of the title to the property, and as a result MacKenzie lost the property, then the firm and each and every member thereof would be civilly liable to him for the damages sustained by him on account of that negligence. [Simpson v. Schulte, 21 Mo. App. 639; 4 Cyc. 966, par. IV; Savings Bank v. Ward, 100 U. S. 195; 4 Cyc. 964, c.]

While it is not pretended that Judge Gibson had any knowledge of the examination of the MacKenzie title by McLeod, yet that fact would not relieve him from his and the firm’s liability for the damage occasioned by the negligence of McLeod. One cannot avoid liability for the acts of his partner in the ordinary business of the firm on the ground that he did not know of such acts. [Curran v. Downs, 7 Mo. App. 329.]

In discussing this question, the Supreme Court of Georgia used this language: “It is urged upon us that as Judge Underwood was absent when the business was transacted by his copartner in the firm name, and knew nothing of it, and never received any compensation for the service which his copartner in the name of the firm rendered, and did not become judge until long afterwards, he was free from disqualification; but we think otherwise. What his partner did in the firm name was done by the firm, and upon the firm responsibility, and this was so whether compensa^ tion was charged or not.” [East Rome Town Co. v. Cothran, 81 Ga. 359, 367.]

It is the interest that disqualifies the judge; though it be ever so small and trifling, it is sufficient.

In a case in Massachusetts,'a suit was brought to recover a penalty due a municipality of which the justice was an inhabitant, Parker, C. J., in passing upon the incompetency of the justice, used this language: “It is very certain that, by the principles of natural justice, of the common law, and of our Constitution, no man can lawfully sit as a judge in a cause in which he may have a pecuniary interest. Nor does it make any difference that the interest appears to be trifling; for the minds of men are so differently affected by the same degree of interest that it has been found impossible to draw a satisfactory line. Any interest, therefore, however small, has been held sufficient to render a judge incompetent.” [Pearce v. Atwood, 13 Mass. 1. c. 340.]

I have.been unable to find a case in this State where this court has gone so far as. the case last cited, in holding the judge is disqualified from trying a case because the municipality in which he resides is a party. This court has, however, repeatedly held in actions against counties and cities that tax-paying inhabitants thereof are not competent jurors on account of interest in the cause. [Eberle v. St. Louis Public Schools, 11 Mo. 247; Fine v. St. Louis Public Schools, 30 Mo. 166; Rose v. St. Charles, 49 Mo. 509; Fulweiler v. St. Louis, 61 Mo. 479.]

And as such was the law of this State in so far as jurors were concerned until it was changed by express statute in 1855. [R. S. 1855, p. 503, sec. 9; R. S. 1899', sec. 3790.]

Since the enactment of that statute qualifying jurors in such cases, the probabilities are the courts would not go to the same length to disqualify a judge from trying a case on account of interest as the Massachusetts court went, and as this court went in the cases which held the jurors were disqualified. But be that as it may, the cases from this State and that show the high degree of disfavor with which the law looks upon trials conducted by interested parties.

The authorities cited by counsel for defendant do not mitigate against the rule of law just announced.

We are clearly of the opinion that Judge Gibson was interested in the cause within the meaning of the statute, and was on that account disqualified from trying the case. While it was not' necessary for the plaintiffs to have filed the second application for a change of venue in this case, because said section of the statute expressly requires the judge to award the change of venue without application and upon his own motion whenever he is an interested party; but as he refused to do so, it was not improper to file the second application.

II. The record in this case shows that there were nine of these causes pending in the various divisions of the circuit court of Jackson county on June 25, 1903 — this and one other were pending in Judge Gibson’s division, and on that date, by agreement of the judge from each of the other divisions with Judge Gibson, all seven cases were transferred to his division, and on the next day all were called for trial; and after various motions were filed, and objections made, the cases were set over to June 30. On that day, when the cases were called for trial, the plaintiffs objected to the court trying all the cases together, because there was no law providing for a consolidation thereof and because the parties are not the same, nor is the evidence. This objection was by the court overruled, and to that action of the court plaintiffs duly excepted, and assign that ruling as reversible error. ■

In the absence of a statute governing such procedure, the authorities of this country are conflicting upon that question.

The defendants contend that it is within the sound discretion of the trial judge to consolidate several actions, based upon or growing out of the same subject-matter, brought by the same parties against several defendants, although defendants employ different counsel, and the evidence in each case is different. [1 Thompson on Trials, sec. 210.]

In the Massachusetts case, the facts were: three actions on contract, based upon the following instrument in writing and signed by the defendants: “Provided the city will place granite curb-stones around the large trees on North Main street for the purpose of protecting them, we, the subscribers', hereby agree to pay to the city the cost of the curb-stones so placed opposite our land on our side of street.” In passing upon the right to order a consolidation of the three actions, based upon that contract, the Supreme Court of that State held, that it was within the discretion of the presiding judge to order the several actions consolidated and to try them together, although defendants employed different counsel, and the evidence in each case was different. [Springfield v. Sleeper, 115 Mass. 587.]

The same question came before the Supreme Court of New Jersey, where several actions of ejectment were brought by the lessor of the plaintiff upon a mortgage against a number of defendants, and Ewing, Chief Justice, speaking for the court, said: “The principle upon which consolidation is ordered is, that the same question is to arise in all the actions. The object of consolidation is laudable. It is to save costs> and if we can secure to the parties all their rights and at the same time prevent unnecessary costs, it is desirable. The doctrine on this subject in the English books is somewhat incongruous. There is a case in 2 Strange, 1149, Smith v. Crabb, where the court refused to consolidate several declarations in ejectment, although it was suggested that the title was the same in all, assigning as a reason for refusal that the lessor might have sued the defendants at different times, and it would be obliging to him to go on against all, when, perhaps, he might be ready in some of them only. But in the case of Grimstone v. Burgers, Barnes’ Notes, 176, the Court of Common Pleas ordered sixteen ejectment suits to be consolidated into one. And in the case of Doe ex dem. Pultney and others v. Freeman and others, on a rule to show why the proceedings in thirty-seven actions of ejectment brought against the occupiers of so many houses in Sackville street, should not be stayed, and abide the event of a special verdict, Lord Kenyon said it was a scandalous proceeding; that all the causes depend on the same title and ought to be tried by the same record, and ordered the rule to be made absolute. [2 Sell. Prac., 144; 2 Arch. Prac., 180.] All these cases assert the power of. the court to consolidate in actions of ejectment. Our practice act, Rev. Laws, 421, sec. 58, gives a general power -to consolidate unnecessary actions. The authority of the court extends to ejectment as well as other actions, but in its. exercise in the former more difficulty exists and greater caution is required; for though the title of the lessor be the same, yet where the defendants are different they may have different defenses. And if the actions are consolidated and the plaintiff recover, and afterwards obtain judgment for the mesne profits, one of the defendants, if another be unable, will be compelled to pay the whole.- Notwithstanding, however, these difficulties, the court has * the power and ought in a proper case be consolidated. We think this is such a case and shall therefore make the order, imposing on the defendants proper terms. There are two modes in which this purpose is effected; the one where the actions are actually consolidated, and the other which may be called a quasi consolidation, where one action is tried and the rest are ordered to abide its event.” [Den v. Fen, 9 N. J. L. 335; Jackson v. Stiles, 5 Cow. 282.]

Another case which arose in Massachusetts was assumpsit on a policy of insurance for ten thousand dollars, made by the defendants on the ship- Antioch, for the plaintiffs, who were owners of one-half of her. After all the evidence was put into the case, the trial judge, before he charged the jury, ordered that at the same time and on the same evidence the case- of one Adams, a part owner of the ship, against the same defendants on another policy, should be submitted to the same jury. The cause was appealed to the Supreme Court, and it was there held that, where there are several actions in favor of different plaintiffs but against the same defendant, and depending on the same evidence and managed by the same counsel (which was the fact in the case at bar) it is .within the discretionary power of the judge, notwithstanding objections on the part of the defendant, to order the actions to be put to tbe same jury at the same time. [Witherlee v. Ocean Ins. Co., 41 Mass. 67.]

The same point passed upon in the last-mentioned case came before the Supreme Court of the United States, where several actions were pending upon policies of insurance issued by different companies upon the- life of the same individual, but that ruling was based largely upon a statute of the United States. [Mutual Life Ins. Co. v. Hillmon, 145 U. S. 292.] The rule announced in this case has but little weight in the disposition of the question now under discussion, because it was based upon a statute.

This position, or contention of defendants, that the trial court had the power and authority to order a consolidation of these cases, and try them all at the same time, and upon the same evidence, is most vigorously assailed and controverted by counsel for the plaintiffs. In the first place, he contends that such has never been the practice in this State, and that there is no statute of this State or decision of this court which gives sanction to such practice.

Counsel for neither party have cited us to any authority of this State authorizing a consolidation of actions, except those mentioned in section 749, Revised Statutes 1899.

In a case which came to this court, two suits had been consolidated: one was a bill in equity instituted by the grantor in a deed against the grantee, seeking to have it set aside on the ground that the grantee had broken certain covenants and agreements for support and maintenance therein contained, which constituted the consolidation of the deed; and the other was an action at law, brought by the grantee against the grantor to recover damages alleged to have been sustained by him for having been deprived of the possession of the land described in said deed. The abstract of record states that the court of its own motion consolidated the two suits, but the abstract failed to show any such order was in fact made. In the discussion of the question suggested, Valliant, J., said: ‘ ‘ The only authority in our code for the consolidation of suits is contained in section 2189, Revised Statutes 1889, idem, section 749, Revised Statutes 1899, which is as follows: ‘Whenever several suits founded alone upon liquidated demands, shall be pending in the same court by the same plaintiff, against the same defendant, or whenever several such suits are pending in the same court, by the same plaintiff against several defendants, the court in which the same shall be prosecuted may, in its discretion, if it appear expedient, order such suits to be consolidated into one action.’ Neither of these suits'was of the character referred to in that section. ... It was error to have ordered their consolidation.” [Anderson v. Gaines, 156 Mo. 668, 669.]

While it is true the learned judge who wrote that opinion said that “the only authority in our code for the consolidation of suits is contained ... in section 749, Revised Statutes 1899,” yet the spirit and meaning of the decision is, that that statute is the only authority in this State which authorizes the consolidation of actions. The fact that the order of consolidation was held to be erroneous was .equivalent to stating that no other authority authorizing such a practice existed in this State; because, if the common law practice of consolidation relied upon by defendants had existed in this State, then the order of consolidation in that case would not have been held erroneous without, at least, having considered the common law rule. This question was not presented, ’ nor considered by Judge Valliant, but he assumed the statute mentioned was the sole authority in this State authorizing the consolidation of actions by the trial courts.

In our judgment that assumption was correct, because the very object and purpose of the' practice act was to simplify and codify the common law pleadings and practice, and whenever the statute prescribed a rule of procedure, in the absence of a contrary intention appearing, that rule should be held to be exclusive and not cumulative; otherwise we would have, both the common law and statutory procedure in force at the same time, as is the effect of the contention in this case.

We, therefore, hold the action of the court, ordering a consolidation of the canses mentioned in this record, and trying them at the same time, and largely upon the same evidence, was reversible error. .

III. This canse and the case of Priddy et al. v. Minerva J. Hayes et al., pending in this eonrt, were, by stipulation of counsel, argned and submitted together; but as there are some material differences between the two cases, a separate opinion will be necessary for the proper disposition of that case.

Because of the errors pointed out by this opinion, the judgment of the circuit court is reversed and the cause remanded for a new trial.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    SEVIER et al., Appellants, v. WOODSON, Executor, et al.
    Division One,
    June 29, 1907.
    1. WILLS: Valid and invalid Portions: Changing Scheme. While a will may be valid in part and invalid in part, yet in determining what was the real scheme of disposition in the mind of the testator the valid and invalid portions must be.alike considered, for the reason that the presumption must be indulged that the testator in formulating his scheme of disposition thought all parts of his will were valid. Hence, if the elimination of the invalid portions, if any there be, so changes the general scheme and purpose of the testator as to make the remaining portions amount to a new and different will, then the whole must fail, and for the reason that courts cannot make ' wills.
    2. -: Clear Devise: Cut Down by Subsequent Clause. Where a certain and definite estate is granted in plain and unequivocal terms in one clause of the will, it cannot be lessened or cut down by a subsequent clause, unless the language used in the subsequent clause is as clear, plain and unequivocal as the language used in the grant.

      3. -: -: -: Void Clause: Changing Scheme of Disposition. The testator had .two daughters and a son, and gave to the son one-third of his estate absolutely. Another clause of his will read: “I will and devise to each of my daughters...... each one-third of my estate for and during their natural lives, then to go to their bodily heirs, if any, if not, then to their brother......and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and for their only and sole use and benefit by their brother, who is hereby appointed and created their trustee......And I further direct and will that he ......pay over to each of said sisters as much of the interest accruing on the means hereby devised to each of them as will abundantly provide for their comfort and necessities.” Held, first, that the first sentence or clause gave to each of the two daughters a separate life estate in one-third of the estate, placing it in trust, so as to give each the earnings of said life estate, as their absolute property, the corpus itself to be preserved and to go, upon their death, to their respective bodily , heirs, if there be such, and if not, to their brother “and< his bodily heirs;” the usufruct or earnings of the life estates going to the daughters respectively, the full proceeds becoming their individual property and cannot be added to the corpus of the trust fund; second, by the second clause or sentence the testator undertook, in a vague and uncertain way, to limit the amount of the earnings that should go to the daughters to such an amount “as. will abundantly provide for their comfort and necessities,” leaving it to the trustee to determine what portion of the earnings or income their abundant “comfort and necessities” might require, .with no rule by which he was to be guided, and, hence, the latter sentence is void, in that, by indefinite words, inferential in their character, it attempts to impair or cut down or qualify the preceding definite devise; tMrd, the elimination of that clause, however, does not so change the testator’s scheme of disposing of his property as to destroy the other definite clause, or, by holding it valid, make a new and different will for him.
    4. -: Void! Clause: No Administration. A clause in a will which directs the executor to administer the estate “without going into court or taking letters testamentary” is violative of public policy and void; but it does not destroy the will in other respects.
    5. -: Changing Scheme: Definite and Indefinite Clauses. Where there is a definite clause giving to devisees for life the full usufruct and earnings of a definite portion of the estate, and that is followed by an indefinite, uncertain and ambiguous clause which cuts down or qualifies that definite devise and is for that reason void, to eliminate it will not destroy the definite clause or the whole will, when, by eliminating it, the general plan of the testator to divide his property among his children according to a definite scheme remains apparent and unimpaired.
    Appeal from Ray Circuit Court. — Hon. J. W. Alexander, Judge.
    Affirmed.

      Lavelock é Kirkpatrick for appellants.
    (1) The intended plan and scheme of the testator in devising and bequeathing his estate to and dividing it among the beneficiaries named in his will, including his design and'purpose for so giving his property to be held thereunder, will be effectuated, if such plan and scheme can be definitely determined therefrom, provided it violates no fixed rules of law; but in ascertaining his testamentary scheme, void as well as valid provisions of the will must be considered alike, for it is not to be presumed the testator knowingly incorporated illegal clauses, terms or articles in his will; i. e., the testator’s dominant purpose in making the will must be gleaned from the four corners of the instrument as executed. 30' Am. and Eng. Ency. Law (2 Ed.), 661; Watson v. Watson, 1101 Mo. 170'; Jorboe v. Hey, 122 Mo. 348; Mersman v. Mersman, 136 Mo. 256; Cross v. Hoch, 149 Mo. 336; Dozier v. Dozier, 183 Mo. 146; Brooks v. Brooks, 187 Mo. 487; Grace v. Perry, 197 Mo. 559; Hawley v. James, 16 Wend. 144; Tilden v. Green, 130 N. Y. 55; Brandt v. Brandt, 13 N. Y. Misc. 433; In re Young Estate, 123 Cal. 343; In re Fair Estate, 132 Cal. 544; In re Walkerly Estate, 108 Cal. 651; Lehnhoff v. Theine, 184 Mo. 357. (2) Dependent provisions of testator’s scheme must stand or fall together. Courts cannot eliminate void parts of testamentary , scheme and execute valid portions, for to do so would effectuate plans and distribution different from those of testator. It takes the illegal as well as the legal parts to constitute the testator’s scheme. If the court should reject the void provisions — dependent provisions of the testator’s scheme — and enforce the legal one's, by such a process of elimination a very different plan and will might be effectuated by the court from the one int-ended by the testator, i. e., the court might carry out and effectuate a wholly different division of the estate from that intended by the testator. The void provisions of a will are as indispensable in ascertaining the testator’s plans as the valid portions; all to him were equally vital and equally valid, and for the court to reject and disregard one part and execute the other, which the testator must have considered of equal importance, would not only establish a dangerous precedent, but, in most instances, thwart and defeat the testator’s purposes. It is far preferable that intestacy — partial or total — should follow, and the estate be divided under the law of descent and distribution, than that such unwarranted' authority to change or make a will, should be exercised. 30 Am. and Eng. Ency. Law (2 Ed.), 864; Gray on Perpetuities, secs. 630; 631, p<. 378, 379; Lockridge v. Mace, 109 Mo. 168; Leake v. Robinson, 2 Meriv. 363; Coster v. Lorillard, 14 Wend. 350; Hawley v. James, 14 Wend. 144; Benedict v. Webb, 98 N. Y. 466; Tilden v. Green, 130 N. Y. 46; In re Butterfield Will, 133 N. Y. 476; Brandt v. Brandt, 13 N. Y. Misc. 432; In re Johnston’s Estate, 185 Pa. St. 179; In re Fair Will, 132 Cal. 527; In re Fair Will, 136 Cal. 80; Connolly v. Union Sewer Pipe Co., 184 U. S. 565.

      James L. Farris, Jr., and Sandusky S Sandusky for respondents.
    (1) The 5th item of the will created a trust estate in favor of Lydia Ann Woodson for life, with alternate contingent remainder: (a) To her bodily heirs, if any, living at her death; bnt, (b) in default of such issue, living at her death, to Harrie P. Woodson and his bodily heirs. And a like separate trust estate to Virginia E. Sevier, for life, with like alternate contingent remainder. Watson v. Smith, 110 N. C. 6; 2 Washburn on Real Prop., ch. 4, sec. 3, subsec. 23; Tiedeman on Real Prop., pt. 2, ch. 12, sec. 415'; Reeves on Real Prop., Special Subjects, sec. 591; Leppes v. Lee, 92 Ky. 16; Furnish v. Jones, 154 111. 569 ; Waddell v. Rattew, 5 Rawl. 231; Godman v. Simmons, 113- Mo. 122; Emmerson v. Hughes, 110 Mo. 627; R. S. 1899, secs. 4593, 4594. (2) The trust will terminate on the death of the life tenant. Sears v. Choate, 146 Mass. 495; Battle v. Petway, 5 Ired. Law 576; Tumage v. Green, 2 Jones’ Eq. 63; 28 Am. and Eng. Ency. Law (2 Ed.), 947; Garesche v. Inv. Co., 146 Mo. 436. (3) The 5th item of the will on its face shows that the trust estate to Lydia Ann Woodson and the trust estate to Virginia E. Woodson, now Sevier, are separate trust estates, and that on the death of either the trust as to her ceases, and the corpus of her estate (which the trust was intended to preserve for the contingent remainder-man) passes instanter to the contingent remainder-man — her issue, if she has any living, if dot, then to Harrie P. Woodson and to the heirs of his body. (4) The will is not affected by the invalidity of that part of “item 8th” which provides that the executor should manage and control his estate “without going into court, or taking letters testamentary.” Southworth v. Southworth, 173 Mo. 59. (5) The concluding sentence of “item 5th” is expressed in language as clear and unequivocal as the words devising the two life estates; if it qualifies the prior life estates devised to the two daughters, respectively, it is a qualification which the testator had the right to make; but if the clause be held invalid, the residue of the will is not thereby affected. Underwood v. Cave, 176 Mo. 1; Lewis v. Pitman, 101 Mo. 281; Smith v. Bell, 6 Peters (U. S.) 68; Van Schuyner v. Mulford, 59 N. T. 426; Underwood v. Curtis, 127 N. Y. 541; Landers-v. Bell, 61 Conn. 189; Lovering v. Worthington, 106 Mass. 88.
   GRAVES, J.

This is an action to construe the will of Thomas P. Woodson, instituted in the circuit court of Ray county, by Virginia E. Sevier, formerly Virginia E. Woodson, one of the devisees in said wall, and her husband. It becomes necessary to set out the whole will. This will is in words, as follows:

“In the Name of God, Amen:

“I, Thomas D. Woodson, of the city of Richmond, in the county of Ray and State of Missouri, being of sound and disposing mind and memory and in good health, but knowing the uncertainty of life and having an earnest desire to make disposition of my means and property to and among my dear children, and to give to them such and so much of my property as I desire each shall have, do make, ordain and publish this as and for my last will and testament:

“Item 1st. It is my will and desire that all my just debts be first paid.

“Item 2d. I will and desire that two thousand dollars be loaned out on real estate security for the benefit of my dearly beloved mother, Huldah Ann Woodson, and that the interest be paid to her as is needed for her comfort and maintenance for and during her natural life, and after her death-said amount to go to my children.

“Item 3d. I will, desire and direct that one thousand dollars be given the Board of Trustees of the Conference Fund of the Missouri Conference of the Methodist Episcopal Church, South, to be loaned and the interest accruing thereon to be paid annually to and in support of superannuated preachers of said conference and their widows and orphans of same.

“Item 4th. I will and bequeath to my son Harrie Philip Woodson, my two-thirds interest in lot number ninety-seven, including store building and appurtenances thereto, in Old Town now city of Richmond, Ray county, Missouri, for which property he is to be charged the sum of two thousand dollars.

“Item 5th. I will and devise to each of my daughters, Lydia Ann Woodson and Virginia Elizabeth Woodson, each one-third of my estate for and during their lifetime, then to go to their bodily heirs, if any, if not then to their brother, Harrie P. Wood-son, and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and their only and sole use and benefit by their brother, Harrie P. Woodson, who is hereby appointed and created their trustee, and I further direct that, he be not required to give any bond or security as such trustee. And I further direct and will that he, the said Harrie P. Woodson, trustee as aforesaid, pay over to each of said sisters as much of the interest accruing on the means hereby devised to each of them as will abundantly provide for their comfort asid necessities.

“Item 6th. I’ further will and devise that the remaining third of my estate go to my son, Harrie Philip Woodson, absolutely.

“Item 7th. I hereby nominate, constitute and appoint my son Harrie P. Woodson, the executor of this my last will and testament and direct that he be not required to give bond or security as above directed as trustee for his sisters.

“Item 8th. I will and direct that my son, as executor and heir as aforesaid, manage and control my estate, hold anid divide the same without cfoing into court or taking letters testamentary.

“Item 9th. It is my will and I hereby authorize and empower my said executor to sell, on such terms as he may think best, any or all real estate that I may have and own, and upon sale, to make and execute and deliver as such executor, deed or deeds conveying the same.

“Item 10th. It is my will and I hereby direct, that my brother Philip J. Woodson take complete charge of and manage our partnership matters, and business, as survivor, and as fast and as soon as he can divide and pay over to my executor my two-thirds interest in said partnership assets or estate, and I further will and direct that said, brother be not required to give bond in and about such partnership business.

“In Witness Whereof, I have hereunto signed my name and affixed my seal. This 11th day of April, A. D. 1885.

“ThomasL). Woodson, (Seal.)”

The plaintiff in her petition sets forth the contentions of the parties in full and with great precision. It will not be necessary to reproduce them here. Suffice it to say that the fifth and eighth paragraphs are alleged to be invalid and void, and that by reason thereof the whole scheme of the testator has failed, and all that portion of the will disposing of the bulk of the estate is of no effect and invalid.

The real fight is upon the last clause of the fifth paragraph and the eighth paragraph. With these eliminated, plaintiff claims that the whole will must fail.

The prayer of the petition reads thus:

“Whei*efore, the. plaintiffs herein pray for an order, judgment and decree of this court for the determination of the validity or invalidity of the items of said will hereinbefore mentioned and if for any reason the same or any part thereof be invalid or inoperative, that they be so adjudged and decreed, and that the legal effects of such invalidity on the remaining portions of said items be declared, and that if the intended scheme of the testator cannot be carried out by the execution of the valid portions of said items, and the testator’s scheme and purposes as expressed therein be effectuated, on account of the illegality of other parts thereof, then that the whole of said items be declared void, and if the whole of said items are valid, then for a construction thereof, and for a decree adjudging the rights of said plaintiff in and to the property of said testator disposed of or attempted to be disposed of by the items of his will aforesaid, under said will, if it be valid, or under the law, if it be invalid, and for instructions and directions, for future guidance and protection of the interests of said plaintiff and the parties to this suit, and for such other and further orders, .judgments and decrees touching the premises as to equity and justice my seem right and proper.”

All parties necessary were brought in as defendants and filed appropriate answers.. We think the real contentions fairly appear from the above, and further analysis of the pleadings superfluous. Thomas D. Woodson died August 28, 1902, leaving three children, viz.: plaintiff, Virginia E. Sevier, and defendants, Harrie P. Woodson and Lydia Ann Woodson, an invalid. Upon a hearing, the trial court found these portions of the will which we have italicized to be void and non-effective.

Plaintiffs appeal.

I. The.trial court was of opinion' that the latter portion of .clause five of this will was void, and was further of the opinion that the eighth clause was void. To this extent the judgment of the trial court was in favor of the plaintiffs and against the contentions of defendants. But plaintiffs go further and contend that if these portions of the will are void, then the whole scheme of the testator’s devise has been broken, the scheme fails, and the whole devise in said clause five contained and other dependent clauses, must fail and be by the court declared void, which would leave the deceased as if dying intestate save and except as' to some.minor bequests contained in the will. It occurs to us that the real questions, although verbosely stated in the pleadings, may be summarized thus: (1) Does clause five contain a valid and enforceable devise, and under the law should it be enforced? (2) If as a whole, it cannot stand, can a portion thereof be eliminated so as to leave a valid and enforceable devise? (3) Is the eighth clause violative of law? (4) If clause five or any portion thereof cannot be sustained, and. clause eight cannot be sustained, then does the elimination of such condemned portions of the instrument so change the general scheme of the disposition of the property in the mind of the testator at the making of the will, as to compel the court to say that there is no will in this respect. In .other words, if we ’find invalid portions to be in the instrument, do these invalid portions, when taken out of the instrument, so change the instrument as not to give effect to the general scheme and purpose of the testator in the disposition of his property? These questions we take in their order. In so doing we must and do recognize that it is the duty of courts to construe and not to make wills; that wills may be valid in part and invalid in part; that in determining what was the real scheme of disposition in the mind of the testator, the valid and invalid portions must be alike considered, and this for the reason that the presumption must be indulged that the testator in formulating his scheme of disposition thought all portions legal and valid; that if the elimination of the invalid portions, if any there be, so changes the general scheme and purpose of the testator as would make the remaining portions amount to a new and different will, then the whole devise must fail.

EL With due regard to the views of construction herein above stated let us proceed to consider clause five of this will. No objection is or could be urged as to the preceding clauses. Nor in our judgment could there be any objection urged as to clause five, if it be stopped with the first provision, to-wit: “I will and devise to each of my daughters, Lydia Ann Woodson and Virginia Elizabeth Woodson, each one-third of my estate for and during their lifetime, then to go to their bodily heirs, if any, if not, then, to their brother, Hafrie P. Woodson, and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and for their only and sole use and benefit' by their brother, Harrie P. Woodson, who is hereby appointed and created their trustee, and I further direct that he be not required to give any bond or security as such trustee. ”

This clause of paragraph five in our judgment gives to each of the two daughters a life estate in one-third of the residue-of the decedent’s property, after minor bequests are satisfied. But this interest or beneficial life estate is placed in trust, so. as to give to each daughter the earnings of. said life estate, as their absolute property, the corpus itself to- be preserved. Upon their death this corpus to go, first, to their respective bodily heirs, and if there are no such bodily heirs, then to H. P. Woodson “and Ms bodily heirs.” By the use of the term “each one-third of my estate for and during their lifetime” there is created two estates, one to the plaintiff, Mrs. Sevier, and one to the defendant, Lydia Ann Woodson, each of which is placed in trust, the usufruct or earnings going respectively to the beneficiaries therein named. Under this clause, or portion of the fifth paragraph of the will, there can he no question that the beneficiaries are entitled to the full proceeds of the trust property and such proceeds become their individual property and cannot be added to the-corpus of the trust fund. With only this clause in the will, upon the death of either beneficiary therein, the corpus (the third part of the whole residuary estate) thus preserved by the trust, would vest as by the will directed, but the earnings whether in the hands of the trustee, or in the hands of the deceased beneficiary, would be a part of the estate of such deceased' beneficiary and pass by the law of descents and distributions, or in accordance with the terms of such beneficiary’s will, if any she had made.

By the latter portion of paragraph five, the testator undertakes, in a vague, uncertain and indefinite way, to limit the amounts of the earnings of the corpus, which are to go to the beneficial owners of the life estate. By the first portion, the beneficiaries were entitled to it all; by the latter, they are presumably only entitled to such portion “as will abundantly provide for their comfort and necessities.” This might be all of such earnings, or it might be none. If the beneficiary had no “comfort and necessities” to be provided for, then it might mean that none of the interest or earnings should go to that beneficiary so situated. In other words, if either of these two daughters had the good fortune to be possessed of the comforts and necessities of life, in property, other than the property described in this will, such beneficiary, so conditioned, would not be entitled to any of the interests or earnings of the trust estate held for her. And if she was partly supplied with the comforts and necessities, then she would only be entitled to such portion of the interest or earnings as would make the quantum of her “comfort and necessities.” This quantum, as we take it, to.be judged by the trustee. So at least, there are two elements which render the amounts, if any, to be received by the respective beneficiaries of these two trusts, uncertain, viz.: (1) the condition of the beneficiary, as to whether or not any portion was required, in order that she have the comforts and necessities of life, and, (2) the judgment of the trustee as to what are comforts and necessities, and the amounts necessary to furnish them. At least this is one view which might be taken of the meaning of this clause. It might be viewed, however, as meaning that notwithstanding the beneficiary had other means of “comfort and necessities” yet she would be entitled to receive from the earnings of this trust estate sufficient to meet the requirements of her£ £ comforts and necessities. ” If this construction could be given it, we would still be met with uncertainty, thuS: (1) One’s station in life determines in a measure what are comforts and necessities, and (2) the judgment of the trustee as to the amount required for the same, as well as his judgment upon the station in life.

In reaching a conclusion as to the validity of this latter portion of the fifth paragraph of the will, it must be remembered, that with the exception of certain small bequests, by this paragraph, with paragraph six, which gives one-third of the estate absolutely to ■H. P. Woodson, the whole estate is disposed of and taken into consideration.

We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant.

In Banzer v. Banzer, 51 N. E. 1. c. 293, the New York Court said: £‘Where an estate is given in one part of a will in clear and decisive terras, that it cannot be taken away or cnt down by raising a donbt as to tbe meaning or application of a subsequent clause, nor by any subsequent words wbicb are not as clear and decisive as tbe words giving tbe estate, is a well-established rule applicable to tbe construction of wills. As was said by Judge 0 ’Brien in Goodwin v. Coddington, 154 N. Y. 283, 286, 48 N. E. 729, 730: ‘Whenever tbe will begins with an absolute gift, in order to cut it down tbe latter portion of the will must show as clear an intention in that direction, as tbe prior part does to make it.’. In Clark v. Leupp, 88 N. Y. 228, 231, this court said: ‘It is well settled by a long succession of well-considered cases that, when tbe words of the will in tbe first instance clearly indicate a disposition in tbe testator to give tbe entire interest, use, and benefit of tbe estate absolutely to tbe donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words, inferential in their intent.’ ”

Our court has followed tbe New York Court. In Chew v. Keller, 100 Mo. 1. c. 369, we said: “Again, an estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as tbe language of tbe-clause wbicb devises tbe real estate. [Freeman v. Coit, 96 N. Y. 63; Byrnes v. Stillwell, 103 N. Y. 453; Landon v. Moore, 45 Conn. 422.]”

And again, in Small v. Field, 102 Mo. 1. c. 127, it is said: “Under this statute it is obvious that tbe absolute estate in fee granted to Mrs. Kate Green could not be impaired, cut down or qualified except by words as affirmatively strong as those wbicb conveyed, the estate to her. Such has been tbe ruling upon similar statutes elsewhere. [Roseboom v. Roseboom, 81 N. Y. 356, and cases cited.] And this seems to be tbe proper rule to apply apart from any statutory regulation. [Lambe v. Eames, L. R. 10 Eq. Cas. 266; Thornhill v. Hall, 2 Clark & Fin. loc. cit. 36; Clark v. Leupp, 88 N. Y. 228, and cases cited.]”

And to the same effect is Yocum v. Siler, 160 Mo. 1. c. 289 ; Roberts v. Crume, 173 Mo. 1. c. 580; Roth v. Rauschenbusch, 173 Mo. 1. c. 593, 594; Underwood v. Cave, 176 Mo. 1. c. 12, 13.

Measured by these rules the latter clause of paragraph five of this will is in our judgment void and of no effect. The trial court so held and we think correctly.

III. The next question presented is the validity of the eighth paragraph of this will. As will be seen this expresses the preconceived notion of the testator, that by an obiter in his will, he could overturn the statutes of the State upon the subject ¡of administration of estates. In this the testator was wrong. Such a provision is in our judgment violative of public policy, and violative of public policy as expressed' by the statutes of this State. The testator has no inherent right to keep his estate from the courts given jurisdiction to administer the same. To declare such a policy would be a very dangerous precedent. This court has heretofore indicated the views we entertain upon this question. [Southworth v. Southworth, 173 Mo. 59.] We, therefore, hold this paragraph void and of no effect. This was the view entertained by the learned trial judge, and we but add our approval to his, judgment thereon.

IV. We now reach the problematical part of this contest. Plaintiff claims that with the portions eliminated, as we have here indicated should be eliminated, then the whole scheme of the testator for the disposition of his property has been ¡changed, and what is left does not express the will of the testator. If this is true then the whole of paragraph five and paragraph six must fail, for in these two paragraphs we find the general scheme of the testator for the disposition of his property. We do not agree with counsel for the plaintiff in their contention that paragraph eight of this will seriously affects or becomes a part of the testator’s general scheme. This general scheme we think is found in paragraphs, five and six, for in these the bulk of the estate receives its disposition. Paragraph seventh simply provides the instrument or person for the execution of the will, and paragraph eighth ‘ simply expresses an erroneous idea of the power, which the testator thought he could invest in this instrument or agent. Both of these paragraphs could be stricken from the will, and yet the general scheme of the testator as to the disposition of his property remain intact. So that as to the effect of eliminating the eighth paragraph we find no, trouble. The serious question is in the elimination of the last clause of the fifth paragraph. We find no case exactly in point. All will eases are decided upon the peculiarities of the different instruments presented, so- that in the cases we have judicial expressions peculiarly applicable to the instrument then before the court in each case. At best the cases but suggest thoughts of value in the consideration of the question in hand.

Reverting to the sole proposition left in this case, we are asked to say that by striking from this will the last clause of paragraph five, the whole scheme of the testator has been changed, and we would therefore be making for him a new will, if the remainder were permitted to stand as his will. We think not. What was the general scheme of the testator, for the disposition of his property? This can be determined by what he says as to the bulk of the property. The minor gifts cut but little figure in this case. But answering our own question, what was testator’s general scheme, as appears from this will, and gathering such intent from within the four corners thereof, and considering valid as well as invalid portions? First, we find a purpose to husband and hold the property in the hands of the testator’s-blood" relatives. Second, we find a desire upon his part that the son have one-third of his estate absolutely, thoroughly in keeping with the first general purpose. Third, we find the desire upon the part of the testator, that each of his daughters have the benefit of one-third of his estate, for and during their life, with remainder over to testator’s blood relatives, likewise in keeping with the first-named general purpose. The only change contended for by plaintiff, save and except such as she imagines comes through the striking out of the eighth paragraph, is this, that with the last clause of paragraph five stricken out, plaintiff has a full life estate in trust, but with that clause in the will she has less than a life estate, and for that reason we have changed the scheme of disposition by striking out such clause.

In this plaintiff argues too much. Clauses of wills may be invalid for several reasons. They may violate express statutes, as in the Fair will, 132 Cal. 523; they may violate public policy; they may be too indefinite and uncertain to be enforced at all by the courts, as in Board of Trustees v. May, 201 Mo. 360; or they may be too indefinite and uncertain in terms to overcome previous express, clear and definite terms theretofore found in the same instrument, as in the ease at bar. There may be other reasons for invalidity of specific clauses in wills, but these will suffice to illustrate the idea we have. But for whatever reason the clause or clauses are declared invalid, it does not always follow that the general scheme of the testator has been changed and the whole will must fail. However, the reason for declaring the clause invalid may lend some light upon the question as to whether or not the general scheme has been changed by the elimination of the particular clause. In the ease at bar had the last clause of paragraph five been as clear, definite and certain in its terms, as was the grant expressed in the first part of said paragraph, then it would have modified and changed the first, and we would have had there an expression of the scheme of the testator. But we have held upon the contention of the plaintiff that the language here- used was too indefinite, uncertain and ambiguous to modify the first clause, and therefore by parity of reasoning, it must be too indefinite and uncertain to express any general scheme of the testator. Plaintiff is in the attitude of saying that it is too indefinite, uncertain and' ambiguous, to modify the scheme of disposition as expressed in the first clause, yet it is clear, definite and certain enough to show a scheme of disposition other than that expressed in the first clause, and when we cut it out, the scheme as left in the first clause is not the general scheme of disposition in the mind of the testator. We cannot assent to this reasoning. If by cutting out this last clause we have written for the testator a new will, it must be because there is such definite and certain language in the last clause as would show a .scheme and purpose of disposition within itself. If it is definite, clear and certain enough to show that, then it is definite, certain and clear enough to- modify the first clause, and we have erred, in cutting it out as invalid. We are not satisfied' that the elimination of this latter clause so changes the general scheme of the testator as to invalidate this will, or even paragraph five and six thereof, which are the dependent paragraphs. We think this can be cut out, and the general scheme as heretofore outlined still remain. We have read with care the judgment entered by the learned trial judge, and it sufficiently covers the full situation of this case. In this judgment, which upholds the will, save and except .the two clauses indicated as invalid, and construes the remaining portions of the will, the trial court was right, and the judgment is affirmed.

All concur, except Woodson, J., not sitting.