text:
    IDA VON BEHRN, MARTHA BEARE, SALENA SPRECKELMEYER and NELDA ROHLFING v. FRITZ STOEPPELMANN, Appellant.
    Division One,
    December 30, 1920.
    1. WILL: Life Estate: Power to Direct Division of Personalty and Realty: The Same. The testator devised and bequeathed “all my property, both real and personal,” to' his wife “for the term of her natural life,” describing the real estate alone, and then said that “after the death of my wife I give the same unto my children,” naming them, “to be divided as my wife may direct.” Held, that the widow’s power to control the division of the estate among the children extended both to the real estate and the personalty, the words “the same” referring to “all my property, real and personal” previously mentioned; and while the children took vested remainders, the widow could divest the remainders by exercising , the power to appoint and to determine what portion each appointee should receive.
    2. -: -: -: Vested Remainders: Divestment. Although the will by giving to testator’s widow a life estate in all his property and after her death the same “unto my children” gave to the children vested remainders, yet by further declaring that said vested remainders are “to be divided as my wife may direct by will or otherwise” it empowered the widow to divest the remainders by exercising the power to appoint and to determine what portion each appointee should take. Vested remainders followed by a donation of power to divide the estate among the remainder-men as the life tenant may direct are subject to be defeated by the exercise of the power. But in case of the death of a named vested remainderman during the lifetime of the donee of the-power the remainder goes to the heirs of the remainderman, if the power has not been exercised by its donee.
    3. VESTED REMAINDERS: Divestment: Power of Appointment: Imperfectly Exercised. Where there is a limitation over of remainders to a class, after a life estate, or words to show an intention that the class should take thereafter, but subject to a power of appointment among the class in the life tenant or some one else, then in default of appointment, or in the event of a bad one, the heirs of a remainderman, deceased when the life interest ends, will be given his share. But a good appointment under the power will so defeat the interest of a remainderman that if he dies before the end of the life estate his heirs cannot come in for a share, as they would have done had there been no appointment. And where the will gave testator’s entire property to his wife for her natural life and after her death to six named children, “to he divided as my wife may direct by will or otherwise,” whatever interests his children took were subject to be divested, as to the proportion of the share, by an unequal division directed by the widow in executing the power conferred upon her.
    4. -: -: -: To Grandchildren. Under a power to appoint to the children of a particular person, the power cannot he exercised in favor of the grandchildren of such person. So where the will .gave to testator’s wife his entire property for her life and after her death to his six children, naming them, “to be divided as my wife may direct by will or otherwise,” and one of said children died before the widow, the power given the widow to direct a division of the estate among testator’s children gave her no power to appoint a portion to the children of such deceased child.'
    5. -: -: -: Exercise Questioned by Grandchildren. Under a will giving to testator’s widow power to direct the division of his estate among his children after the termination of her life estate, the children of a child whose death preceded that of the life tenant cannot complain of the portion she appointed to them, or that the distribution was unequal, for not only was there no duty incumbent upon the donee of the power to exercise it in favor of such grandchildren, but the law gave her no right to thus exercise it; and whether a deed by which before the life estate terminated she conveyed the major portion of the real estate to two of the six remaindermen was valid, is a matter which such grandchildren are not entitled to have adjudicated.
    6. -: -: -: Fraud Upon the Power. Whether or not the appointment of a large portion of the estate to two of the six vested remaindermen was a fraud upon the power, because to some extent made for the benefit of the donee, being a point which cannot be raised by the plaintiffs, who are children of a deceased remainderman and not therefore entitled to share in the estate, is not decided, being neither pleaded nor briefed nor otherwise raised.
    7. -: -: -: Illusory. The fact that plaintiffs were not objects of the power of appointment conferred on the donee precludes them from urging that the appointment to them was il- . lusory, and does not require the court to decide whether the doctrine of illusory appointment is in force in this county.
    Appeal from Franklin Circuit Court. — Hon. R. A. Brener, Judge.
    REVERSED AND REMANDED (with directions,).

      John W. Booth and Jesse H. Schaper for appellant.
    (1) The will.of Casper Stoeppelmann devised and bequeathed all his property, of every kind and description, to his widow, for her life, and after her death to his six children, to be divided among them as she might direct. This constituted a family settlement, and created and conferred on Johanna “a power,” in the nature of £<a trust.” 2 Sugden on Powers, p. 159, par. 5; Wash-burn on Real Property, pp. 313, 323, par. 27. (2) The creation of a power by will depends upon the intention of the testator; and the will is construed liberally, in furtherance of that intention. Turner v. Timberlake, 53 Mo. 371; Gaven v. Allen, 100 Mo. 299; Norcum v. D’Oencli, 17 Mo. 98; 2 Washburn on Real Property, p. 313, sec. 111. (3) The will of Casper Stoeppelmann giving all his property to his wife for her life, and after her death to his children, “to be divided” as she might direct, gave to her authority or “a power” to divide the property among the children of Casper at her own discretion, subject to no legal restriction other than to appoint a share to each child. 1 Sugden on Powers, p. 118, par. 2; p. 121, par. 12; p. 537 et seq., pars. 1, 2, 3, to 11; 31 Oyc. 1066. (4) If the former English doctrine concerning what were termed “ illusory appointments” has been adopted in Missouri (and so far as we have found it has not), it is not applicable in this action, in which respondents count only upon an alleged legal title. 31 Cyc. 1137. (5) Powers of appointment need not be executed to the utmost extent at once. They may be executed over the whole estate at once, or at different times, over different parts of the estate. 1 Sugden on Powers, pp. 341, 342, par. 21. (6) Any words indicating an intention to execute a power will have that effect. No direct reference to power is necessary. 1 Sugden on Powers, p. 244, sec. 2, par. 1; Turner v. Timberlake, 53 Mo. 371; Norcum v. D’Oench, 17 Mo. 98; Gaven v. Allen, 100 Mo. 2:99. (7) Where several modes of executing a power are authorized in the instrument creating it, it may be executed in such of those ways as the donee may choose. 1 Sugden on Powers, pp. 274, 275, par. 37, and p. 532, sec. 4, par. 1. (8) “If a fund consisting partly of real estate and partly of personal estate be authorized as a common fund to be appointed among several objects, so that each must have a share, yet, it is not necessary to give a part of each fund to .each object; but, if there are two, for instance, all the realty may be given to one, and all the personalty to the other.” 1 Sugden on Powers, p. 515, par. 11; Morgan v. Surnam, 1 Taunt. 298. (9) Unless an intention is shown in the instrument creating the power 'of appointment that the appointees shall take equally, the donee may appoint such share as he thinks fit, provided, in some jurisdictions, none of them are illusive. 31 Cyc. 1067. (10) “In the absence of a statute a power of appointment among the children generally, or among particular children of a donor, donee, or other person, does not authorize either a general or partial appointment .to his grandchildren or remoter decendants, even though there be no children living at the time the power is executed, unless an intention to include grandchildren is manifest from the instrument creating the power.” 31 Cyc. 1061. (11) “A poAyer given by will to divide or .appoint an estate among the testator’s children as the donee may see proper, etc., is properly executed by devising land to one or more of the children, and charging it Avith pecuniary legacies in favor of the others.” 31 Cyc. 1071; Allder v. Jones, 98 Md. 101; Darling v. Edson, 4 Pa. Super. Ct. 498. (12) “A poAver to appoint land authorizes in equity a charge thereon for the benefit of an object of the power.” 31 Cyc. 1071.

      W. L. Cole and James Booth for respondents.
    (1) Under a proper construction of the Avill in question, none of the authorities cited by appellant are applicable. Because the testator must be presumed to have known what words he was using in the will, and the peculiar relation of those words to the general context of that will, he must be held to have known the laws of nature, that the personal property would all be consumed or go to waste before the death of the widow; its small value as compared to the bulk of his estate and the language of the will, “After the death of my wife, I give the same to my children (naming them), to be divided as my wife may direct by will or otherwise,” following immediately after a specific description of the real estate, must be held to apply to the real estate only. Sec. 583, R. S. 1909 ; Byrns v. France, 131 Mo. 639; Colliers Will, 40 Mo. 287. (2) The law favors vested estates, and by the will all of the children named took a vested interest in remainder in the real estate. This interest so vested could not be divested by any act of the widow. Sec. 578, R. S. 1909; Newell v. Kern, 218 S. W. 444; Huntington Real Estate Co. v. Megaree, 217 S. W. 301. (3) The power, if it. be a power conferred by the will on Johanna, was merely to divide an existing estate “by will or otherwise.” The power was a naked and special one, with no right in Johanna to exclude any of those giving a vested estate by the will. Colliers Will, 40 Mo. 287 ; 31 Cyc. 1066,1148. (4) The authority conferred on Johanna by the will was not to create or vest a title by any act of hers; that title had been vested in the children by the express terms of the will; only the right to possession was postponed until the death of the life tenant. The life tenant was given authority to fix the boundaries of the lands set apart to each by her; but seizin was in the devisees,, independent of any act of hers. The devisees took under the will and not under any power of appointment conferred on Johanna. Harrison v. McReynolds, 183 Mo. 533; Armor v. Frey, 253 Mo. 447. (5) The doctrine of illusory appointments has no abiding place in this case. Here there is no complaint made of an unfair division; but tbe complaint is that no division was made. These, plaintiffs received nothing.
   GOODE, J.

This action was filed to have partitioned a tract of land in Franklin County of the following description:

“All that part of the east half of the northeast quarter, and the east half of the southwest quarter of the northeast quarter of Section Twenty-six, Township Forty-five, Range Four west, which lies north of the' old Hermann and Washington County Road, in Franklin County, Missouri. ’ ’

The allegation of the plaintiffs is that each of them is entitled to an undivided one twenty-fourth (1/24) interest in said real estate, or a total of one-sixth, and the defendant is entitled to an undivided five-sixths.

The answer, besides a general denial, pleads adverse possession by the defendant for more than ten years before the action was begun, and then sets up a third defense resting upon the material facts in the case, which are pleaded in the answer and to be stated.

Casper Stoeppelmann died in Franklin County, July 16, 1881, leaving a widow, Johanna Fredericke Stoeppel-mann, and six children, namely: Mathilde, married to Henry Rohlfing; Mary, married to John Kohlbusch; Henry, John, William and Fritz Stoeppelmann.

Said Casper Stoeppelmann died testate and by his will provided as follows:

“I give, devise and bequeath all my property, both real and personal, unto my beloved wife, Johanna Friede-ricke Stoeppelmann, for the term of her natural life. The real estate being known and described as east half of northeast quarter, the northeast quarter of the southeast quarter and the east half of the southwest quarter of the northeast quarter all of Section Twenty-six, Township Forty-five, Range Four, west, the whole containing one hundred and thirty-seven acres.
.. “After the death of my wife I give the same unto my children, to-wit: Mathilde, wife of Henry Rohlfing; Mary, wife of John Kohlbusch'; Henry Stoeppelmann,' John Stoeppelmann, William Stoeppelmann and Fritz Stoeppelmann, to be divided as my wife may direct by will or otherwise: ’ ’

This suit is for the partition of the north half of the tract of 137 acres described in the will, and the source of the supposed interest of the plaintiffs in the land will appear as we proceed with the facts.

Johanna Fredericke, the widow, was fifty years old at the time of the death of her husband, and survived him for nearly thirty-five years, as she died in the early part of the year 1916.

Mathilde, one of the daughters who was married at the time of her father’s death, died intestate in the year 1897, and in the lifetime of her mother, Johanna Fredericke. Said Mathilde left as her heirs at law the four plaintiffs in this case, to-wit: Ida Yon Behrn, Martha Beare, Salena Spreckelmeyer and Nelda Rohlfing, who claim an interest in the land in controversy as such heirs.

Shortly after the death of Casper Stoeppelmann, Johanna Fredericke, the widow, qualified as executrix of the will, although she was not named executrix, and administered and settled the estate in that capacity, with the approbation of the probate court. Her final settlement, dated December 4, 1883, showed a balance of $1814.39 personal property, which was credited to her as received by her under the will. The testimony as to the value of the entire 137 acres of land devised by the will of Casper shows it was worth about thirty-five hundred dollars when Casper died.

Mrs. Johanna Fredericke Stoeppelmann shortly after the death of her husband began to divide among the children the personal estate he had left, not waiting to do this by her last will, or in any other mode to make the division take effect after her death.

(a) In this division it is asserted by the defendant that $600 was received by Henry Rohifing, the husband .of Mathilde, for said Mathilde, and as appointed to her by her mother, Johanna Frederieke, under the power given in Casper’s will. This receipt, signed by Henry Rohifing, was taken by Johanna Frederieke:

“$600.00 Berger, Mo. Aug. the 5, 1881. Received of Johanna F. Stoeppehnann, Ex. of Casper H. Stoeppel-mann, the sum of six hundred dollars.”

Henry Rohifing testified that although he signed the receipt at the request of Johanna Frederieke, it was not for any money she paid to him from the estate, but simply because she wanted the receipt. He said the $600 had been given to him by Casper Stoeppehnann in April, 1881, a few months before the death .of said Casper, to pay for some land Henry had bought. The latter testified he asked Casper for a loan of the money and Casper said he would make him a present of it. This testimony was contradicted by a witness, Judge Schaper, who said that in 1913 Henry Rohifing told him that he, Henry, got the money — the amount stated in the receipt — and that he signed the receipt for his wife, Mathilde Rohifing.

(lb) On March 27, 1883, Johanna Frederieke paid to John Kohlbusch, .the husband of her daughter Mary, $600, and took the following receipt:

“600 Franklin Co. Mo. March 27, 1883.
“Received of Mrs. Johanna Stoeppelmanh the sum of six hundr.ed dollars, as part payment due from the estate of Casper Stoeppehnann deceased.
“JohN Kohlbusch.”

(c) On December 1, 1884, or thereabout, Johanna Frederieke paid to her son Henry $400 in cash, as an appointment under the will of Casper.

(d) On June -10, 1885, she paid in the same way to her son John $500.

These were all the payments or appointments made under the will until January, 1913. It will be perceived that if the $600 paid to Henry Rohlfing is included among the appointments made by Johanna Fredericke under the will that said appointments were to the four older children, to-wit: Mathilde, or to Henry Rohlfing, her husband, for her; to Mary, or to John Kohlbusch,-her husband, for her; and to the sons Henry and John Stoeppelmann.

The two youngest children, William and Fritz, and also John, were, at the death of their father, Casper, on the land he left, that is, they were living with their parents on the home place. John soon went away, leaving William and Fritz with their mother, with whom they remained until they were of age.

In the year 1888, an agreement was made between the mother, Johanna Fredericke and the two boys, William and Fritz, to this effect in substance: If the hoys would stay with her, tend to the farm, and furnish her a living, she would give the north part of the land (the part in controversy in the present suit) to Fritz, and the south part to William, the division between the two parts being a county road. But the boys were to pay $.1300, or $650 each, to be divided among the other children in order to properly equalize the appointments to the several children. Johanna Fredericke stated at the time of this agreement that she had divided up the money among the older children and had nothing to give the boys but the land. They testified they allowed the mother one-third of the wheat every year, her' fuel and board; that she 'bought most of her clothes and continued to pay the taxes on the land up to the year 1913. The agreement was verbal, and was not put into any writing which took effect, until the 16th day of January, 1913, when a deed was executed, which will be referred to presently.

Thei»e is testimony tending to prove that about the date of said verbal agreement the mother made a will, drawn by F. W. Pehle, a citizen of Franklin County who had held official positions, but was not. a lawyer. This testimony goes to show said will was pretty much like the last will made by said Johanna Fredericke, which, we understand, was made to correct some mistake of description in the first.

The deed biy which the land was appointed to William and Fritz Stoeppelmann recited that Gasper Stoep-pelmann had devised and bequeathed to Johanna Fred-ericke, his wife, for the term of her natural life, all his property, both real and personal, the real estate being described as follows (Describing* it); that by his last will “said testator gave the same, after the death of his beloved wife, to his children, to-wit: Ma-thilde, wife of Henry Bohlfing; Mary, wife of John Kohlbusch-; Henry Stoeppelmann; John Stoeppelmann; William Stoeppelmann, and Fritz Stoeppelmann to be divided as his said wife may direct, by will or otherwise.” x

The deed then goes on to- recite that said Johanna Fredericke, “by virtue of the power conferred on her by the last will of her husband, Casper, had theretofore divided and paid over a portion of said property in money, as follows: To Mathilde, wife of Henry Kohl-fing, the sum of six hundred dollars; to Mary, wife of John Kohlbusch, the sum of six hundred dollars; to Henry Stoeppelmann, the sum of four hundred dollars; and to John Stoeppelmann, the sum of five hundred dollars. It said, too, the said Johanna Fredericke was desirous of making a further division of the said property “among said children and the children of Mathilde Bohl-fing, now deceased, in accordance with the power upon me conferred by said last -will and testament.” (Italics ours.) There is a further recital that, for the purpose of the division of said property and to equalize the division as far as possible among the said children, considering the division theretofore made, “said William Stoeppel-mann and Fritz Stoeppelmann have paid to me, share and share alike, the sum of thirteen hundred dollars, cash in hand, the receipt of which I do hereby acknowledge.” The deed then recited that in consideration of the premises and the said sum of thirteen hundred dollars, and by virtue of the power conferred by the last -will of Casper Stoeppelmann, “I do hereby give, and convey said moneys and real estate, together with immediate delivery of possession thereof, to the above named children absolutely and forever as follows, to-witTo Ida, Martha, Salena and Anelda Rohlfing, children of my beloved daughter, Mathilda, wife of Henry Rohlfing, each the sum of fifty dollars, the receipt of which is acknowledged by them. To Mary Kohlbusch, wife of John Kohlbusch, the sum of two hundred dollars, th.e receipt of which is acknowledged by her. To Henry Stoeppelmann, the sum of four hundred dollars, the receipt of which is acknowleged by him. To John Stoeppelmann, the sum of five hundred dollars, the re-receipt of which is acknowledged by him. To William F. Stoepp.elmann, all that part of the above described real estate lying, being and situated south of the old Hermann and Washington County Road, to have and to hold the same unto the said William F. Stoeppelmann, his heirs and assigns absolutely and forever. To said Fritz Stoeppelmann, all the remainder of the real estate first above described, lying being and situated north of the said old Hermann and Washington County Road, to have and to hold unto him, the said Fritz Stoeppelmann and to his heirs and assigns absolutely and forever.” Said instrument was executed and acknowledged by Johanna Fredericke and William and Fritz Stoeppel-mann and was filed for record on February 24, 1913.

At the foot of it and below the signatures of the parties aforesaid, appears the following: “Received and accepted by: Mary Kohlbusch, Henry J. Stoeppelmann, John Stoeppelmann. ’ ’

On the day the deed was executed there was a meeting of the persons interested, at the office of Judge Schaper in New Haven, Franklin County, they having been invited to come to the office, it appears, in order to have them all agree to the disposition of the property made in the deed: but the four plaintiffs, daughters of Mathilde Rohlfing, refused to- acquiesce, or to accept the $200 which was offered them as the balance due them out of the part of the estate of their grandfather which their grandmother had appointed to their mother. Mathilde, and afterwards they filed this suit claiming to own, as stated above, and undivided one-sixth interest in the land c'onveyed to Fritz Stoeppelmann.

Johanna Fredericke’s last will was dated December, 1897, the daughter Mathilde having previously died. In that will she disposed of the property as she disposed of it by the aforesaid deed. She bequeathed $200 to the plaintiffs, to be divided among them equally; two hundred dollars to Mary, wife of John Kohlbusch; four hundred dollars to Ilenry Stoeppelmann; and five hundred to John Stoeppelman; of which bequests William and Fritz were each to pay one-half, and she devised the. lands of the estate to William and Fritz in the same manner as it had been conveyed by deed. She provided also that her grandchildren, the children of Mathilde, should be considered as one heir. On the settlement of her estate by her executors, there was a balance remaining in it of $200.88, which was the money intended for these plaintiffs according to the terms of the aforesaid deed and of the will of Johanna Fred-ericke Stoeppelmann.

After setting up substantially the facts aforesaid, the answer avers that by reason of them the defendant is the sole owner of the land sought to be partitioned. No declarations of law having been requested, the court found the plaintiffs and the defendants were tenants in common of the land in controversy, that the plaintiffs each own an undivided one twenty-fourth thereof, and the defendant the remaining undivided five-sixths; that the land was not susceptible of division in kind without prejudice to the interest of the parties; wherefore it was ordered the premises be sold by the sheriff and the proceeds divided among the parties according to their interests as determined by the judgment.

It should be stated that the defendant Fritz Stoep-pelmann had put improvements on the land conveyed to him, to the amount of three thousand dollars perhaps, which improvements were made at different times after the verbal agreement of 1888.

From the aforesaid judgment the defendant appealed.

I. . For the plaintiffs this interpretation of the will of Casper Stoeppelmann is propounded as the sound one: (A) That the power of the widow, Johanna FrecL-ericke, under said will, to direct, the division of the property after her death among the children, applied only to the land. (B) By the will all the children took a vested interest in remainder in the land, which could not he divested by any act of the widow.

The will of Casper first devised and bequeathed “all of my property, both real and personal, unto my beloved wife, Johanna Frederick.e Stoeppelmann, for the term of her natural life,” then described the real estate; next said, “after the death of my wife I give the same unto my children, to-wit (naming them), to he divided as my wife may direct by will or otherwise.” There is nothing in the provisions of the will to lend support to the proposition that the widow’s power to control the division of the estate among the children, extended only to the land, except that the description of the land immediately preceded the gift, to the children; a circumstance of no weight; for both the real and the personal property were given in the same paragraph to the widow for life; and in the next paragraph, “the same” were given to the children and to he divided as the widow might direct. Clearly the words “the same” refer to the total estate previously given to the widow; not merely to the real estate just before described, but devised to her along with the personalty1-. The intention of the testator was to vest both estates in his wife for life, with power to direct the proportions in which both should be divided among the children after her death. This was the construetion given to a similar testamentary clause by the court of common pleas in Morgan ex. dem. Surman v. Sur-man. That testator had given “all the residue of his real and personal estate whatsoever . . . unto his wife, Eleanor Surman, for her to deceive the rents and profits . . . during her natural life, . . . and after her decease, then he gave and bequeathed the same unto his children, to be parted among them as she should think proper.” (Italics ours.) The testator died leaving six surviving children. The widow by will gave nearly the whole of the estate (but charged with legacies to John, Mary and William) to her two youngest children, James and Francis, cutting off Thomas, the eldest, with a guinea, reciting that he had been settled in business in his father’s liftetime, thereby receiving his share. The son Thomas brought ejectment for an interest in the real property, laying a fictitious demise according to the.old manner of pleading. The plaintiff contended the words “the same” in John Surman’s will, referred only to the real property, and that the appointments made by the widow were bad, because they proceeded on the theory of the power to appoint including the personalty, and gave all the realty to two of the children and only personalty to others; whereas she should have appointed only the real estate among them. Lord Mansfield said upon the point, that “it was impossible to apply • the word same to one sort of property and not to the other ... It seemed the most rational construction to say the testator meant that she (the widow) should take the .whole for her life onlv.” [1 Taunt. 289, 297.]

We agree the children took vested remainders, as said by the attorney for plaintiffs, but decline to agree that the widow could not divest the remainders by exercising the power to appoint conferred on her by her husband’s will. As to the nature of this power it was limited and in trust for the benefit of the children. (Jarnagin v. Conway, 2 Humph. (Tenn.) 50; 1 Perry Trusts (6 Ed.), secs. 248 et seq.; Brown v. Higgs, 4 Ves. 708), and was non-exclnsive and to be used for the benefit of all, without the right to select some as appointees to the entire exclusion of others, but with the right to determine what portion each should receive; unless, perchance, an appointment might be annulled as illusory. [Fidelity Trust Co. v. Barret, L. R. A. 1916D, 493 and cases cited in the briefs in said case.]

We. have found neither in judgment nor treatise, unless it be in a Pennsylvania case to be noticed later, any authority for the proposition that remainders followed by the donation of such a power are not subject to be defeated by the exercise of the power, but in case of the death df a remainderman in the lifetime of the tenant for life, must go to the heirs of the deceased remainderman. The great weight of decision and of comment is to the contrary. In cases where, as here, there is a limitation over of remainders to a class, after a life interest, or words to show an intention that the class should take thereafter, but subject to a power of appointment among the class in the life tenant or someone else, then, in default of an appointment, or in the event of a bad one, the heirs of a remainderman, deceased when the life interest ends, will be given his share by the courts. [1 Perry on Trusts (6 Ed.) sec. 250; Minor & Wurtz, Real Prop., secs. 1046, 1052; Herrick v. Fowler, 108 Tenn. 410, 419; Lambert v. Thwaites, L. R. 2 Eq. 151; Casterton v. Sutherland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244.] But all those authorities recognize the rule that a good appointment under the power will so far defeat the interest of a re-mainderman that if he dies before the end of the life interest his heirs cannot come in for a share, as they would have done had there been no appointment. The contrary rule would render the power to appoint nugatory, and frustrate the purpose of the donor; for the power is conferred in order that the beneficiaries shall take according to the judgment of the donee of the power and not as they would were no power given. Says Perry in the cited passage: “In some cases the donor makes a dir.ect gift to one party, but subjects the gift to the discretion or power of some previous taker or other party; as if a donor limit a fund ‘upon trust for the children of, A as B shall appoint.’ In such case the children of A take a vested interest in.the subject of the gift, liable to be divested by the exercise of the power by B. Therefore on the failure of the power, the children of A become as absolutely entitled as if the discretion or power had never been given to B.”' The author, in the same section points out that if the estate is vested in the donee of the power to dispose of it among the children of A, the children get nothing by the gift, but -can acquire an interest only through the exercise of the power. That text clearly elucidates the law applicable to the immediate point.

In Lambert v. Thwaites a post-nuptial settlement conveyed property to -trustees to pay the rent to a husband and wife for their lives and the life of the survivor, and at their death to sell the property and divide the same among the children of the husband as he might direct. The husband had seven children at the date of the settlement, but one died in the lifetime of his father; and when the father died, he left no appointment. It was asserted by the heirs of the deceased son that the latter took a vested interest under the settlement and at the date of it, and as the power was never executed,, this interest went to the heirs. -The vice-chancellor so decided and rendered an opinion wherein many cases were examined. The reason of the decision was that there was a gift over in the post-nuptial settlement after the life tenancies to all the children. The opinion said along with other reasoning, at page 155, that it was “an elementary principle in the doctrine of powers, though once disputed . . . that the existence of a power of appointment does not prevent the vesting of property until, and in default of, the execution of the power. The exercise of the power will divest the estate; but until the power is exercised, it re-' mains vested in those who are to take in default of appointment. This is now perfectly well settled and has been so ever since the well known case of Doe v. Martin, 47 T. R. 39, in 1790.” The opinion then defines the principle of the distinction between the instances where the instrument to he construed gives property to a class with a power in a third person “to appoint in what shares and in what manner that class shall take,” and instances where the instrument makes no gift to the class, but only gives a power to a third person to give the property as he sees fit among the class. The distinction is drawn much as Washburn states it.

We deem it clear beyond question that whatever interests the children of Casper took under his will were subject to be divested as to the proportion of the shares by an unequal division directed by his widow in executing the power conferred on her. [See besides cases already cited Haywood’s Heirs v. Moore, 2 Humph. (Tenn.) 584; Cathey v. Cathey, 9 Humph. 470; Bostick v. Winton, 1 Sneed (Tenn.) 524, 538; Thorington v. Hall, 111 Ala. 323, 56 Am. St. Rep. 54; Smith v. Camelford, 2 Ves. Jun. 697, 30 Eng. Reprint, 848.]

TI. Appointments were made by Casper’s widow within a few years after his death, to Mary Kohlbusch, daughter, and to Henry and John Stoppelmann, sons, and if the six hundred dollars Henry Rohl- ,. . _ ,, . . .„ fing received was for Ins wife-, as there is evidence to prove it was, then also to Mathilde, the mother of the plaintiffs. And there had been a verbal, and perhaps invalid, appointment of the land to William and Fritz. Of course, the dispositions made by the will of Johanna Fredericke could not take effect until she died, and meanwhile the deed had become effective ; so we will concern ourselves with the latter instrument.

The vital question is whether the plaintiffs as grandchildren of Casper Stoeppelmann have any standing to complain of the mode in which their grandmother appointed the division of the estate. The answer to this question depends on whether the donee of the power, Mrs. Johanna Fredericke Stoeppelmann, was hound to appoint a portion to these plaintiffs, or rather whether she could do so if -she wished. Not only was there no duty incumbent upon her to exercise the power in favor of the plaintiffs, but the law gave her no right to thus exercise it. The practically unbroken current of author - ity is that the power given to appoint among children does not extend to grandchildren, doing back to a classical treatise on the subject of powers, we find this .■statement of the law: “Now it is incontrovertibly settled that grandchildren are not objects within a bare power to appoint to children, and it would be highly mischievous if this broad rule were to be cut down by a minute inquiry in every case, whether there are not words in the power tantamount to ‘strict settlement,’ so as to embrace grandchildren according to the supposed intention.” [2 Sugden, (3 Am. Ed.) p. 235.]

Washburn says, “So ordinarily a power to appoint to children does not authorize an appointment to grandchildren.” [2 Real Prop. (6. Ed.) sec. 1691.] Another treatise in defining the objects of a power, says, “The term ‘children’ as used in limited powers to appoint to '‘children,’ has been generally held to include only offspring or descendants of the first degree and not to include grandchildren or remoter descendants; and -therefore, under a power to appoint to the children of a particular person, the power cannot be exercised in favor of the grandchildren or remote descendants of such person.” [22 Am. Eng. Enc. Law (2 Ed.), p. 1134, and numerous citations in the notes.]

Still another treatise says, “In the absence of a statute, a power of appointment among the children generally, or among particular children, of a donor, donee, or other person, does not authorize either a general or partial appointment to his grandchildren or remoter descendants,' even though there be no children living at the time the power is executed, unless an intention to include grandchildren is manifest from the instrument creating the power.” [31 Cyc. 1061, and citations in notes.

Another sound text-writer says: “Thus a power of appointment to children will not support an appointment to grandchildren, unless in some unusual cases, strongly impregnated with circumstances, such as the non-existence of children at the time when the power was created, and the impossibility of other children being subsequently horn, which clearly show an intention to refer to grandchildren under the name of children.” [Tiedeman Real Property (3 Ed.), sec. 412.] These texts are supported by many adjudged cases. [Thorington v. Hall, 111 Ala. 323, 56 Am. St. 54; Jarnagin v. Conway, 2 Humphreys (Tenn.) 50; Herrick v. Fowler, 108 Tenn. 410, 420; Carson v. Carson, 62 N. C. 57; Smith v. Hardesty, 88 Md. 387, 390; Hood v. Haden, 82 Va. 588, 595; Snoddy v. Snoddy, 1 Strobhart’s Eq. 84, 87; Bristow v. Warde, 2 Ves. Jun. 336, 30 Eng. 660; Smith v. Camelford (Lord), 2 Ves. Jun. 697, 30 Eng. Ful. Reprint, 848; Alexander v. Alexander, 2 Ves. Sen. 641, 28 Eng. Reprint, 408; Hewitt v. Lord Dacre, 2 Keen, 622, 48 Eng. Reprint, 768; Cruse v. McKee, 2 Head, 1, 73 Am. Dec. 186.] The power of Casper Stoeppel-mann’s widow to direct a division of the estate among their children gave her no power to appoint any portion of the estate to the plaintiffs as grandchildren.

The single decision we have found that is the other way is Schwartz’s App., 168 Pa. St. 204. That case only went so far as to say„that, upon the death of one of the children, the estate which had been devised over, went to his daughter and an appointment to her was a proper exercise of the power. -The court declined to pass upon the- point, as it was not involved, of whether the donee of the power “could determine the relative proportions of the shares and make an unequal distribution.” Of course, where there is a poAver of appointment among children, as in the case at bar, the very purpose of conferring the power is to vest the donee with a discretion about the division of the estate. If the estate must vest permanently and follow the law of descent, there is no reason whatever for giving such power.

It follows from the foregoing principles and authorities that as these plaintiffs were not entitled to be appointees, they have no right to question the division of the estate directed by their grandmother.

Although not obligated, nor even entitled, to recognize ,the plaintiffs in the distribution of the estate, the widow appointed to them two hundred dollars to be divided equally among them, treating them as one heir and providing for them to receive the portion their mother would have received had she lived. All the children have acquiesced in this disposition in favor of the plaintiffs; therefore it properly may be carried out, but is not a matter for judgment to be given on in the present case.

The point of doubt which has occurred to us, is whether the appointments made by the widow to Fritz and William were a fraud upon the power, be cause to some extent made for her benefit as the donee. It is clear from the record that |jle w£^ow intended to observe the will of her deceased husband in good faith and disposed of the estate according to that purpose. She was entitled to the income of the farm for her life, and she required the two boys to whom she gave it, to pay thirteen hundred dollars to be divided among the other persons whom she regarded as entitled to share in the estate, including, to the amount of two hundred dollars, the children of the deceased daughter, Mathilde, the payment to Henry Rohlfing being treated as made to his wife, Mathilde. Obviously, Mrs. Stoeppelmann aimed at an approximate equality of distribution. The point of whether there was a constructive fraud on the power has not been briefed or even suggested, nor do we think it could be raised by these plaintiffs, who were not objects of the power, so this question does not call for decision.

Something is said in the brief for defendant regarding the doctrine of illusory appointments not being' ^11 ^orce country. We have no occasion to pass on that proposition. The appointment to the plaintiffs would hardly be declared illusory in any event. But the fact that plaintiffs were not objects of the power of appointment conferred on Mrs. Stoeppel-mann, would preclude them from urging that the appointment to them was illusory.

The judgpient is reversed and the cause remanded with the direction to enter judgment for the defendant.

All concur.


source: Caselaw Access Project

author: MOZLEY, C. PER CURIAM:

license: Public Domain

text:
    DAVID WELCH, Appellant, v. GEORGE VEASLEY.
    Division Two,
    December 30, 1920.
    1. SALE OF LAND: Written Contract: Parole Testimony. The Statute of Frauds (Sec. 2783, R. S. 1909) requires a contract for the sale of land to be in writing, and if the written contract has been made and lost parole testimony of its terms and provisions must be clear and convincing; and where the agent’s written authority to sell is disputed by the seller, and its existence depends upon the language of a letter from the seller to the agent which has been lost, the burden is on -the buyer to establish, by clear and convincing evidence, not only that the letter was written and received, but that it authorized the agent to contract in the seller’s name for the sale upon definite terms.
    2. -: -: -: Equity Suit: Deference to Chancellor. A suit to quiet title and to decree the reformation of a written instrument, alleged by the buyer of land to have varied, by mutual mistake, the terms of the contract of sale of land, and to adjudge and quiet the title upon the performance of the contract as reformed, is a suit in equity, and on appeal is triable ele novo; and the finding of facts by the trial chancellor is not binding unless the minds of the appellate court run in the same channel on the facts, or . unless the facts are so close and conflicting as to require deference to his better position to judge the credibility of the witnesses.

      Appeal from Pemiscot Circuit Court. — -Hon. Sterling II. McCarty, Judge.
    Reversed awd eemaNded {with directions).

      N. C. Hawkins for appellant.
    (1) Tlie court erred in permitting* Prank Scott to testify as to the letter and its contents. Parol evidence is not admissible to establish the existence of' such writing (where denied), or the contents thereof. The writing itself must be produced. Sec. 2783, R. S. 1909; Duncan v., Spencer, 211 S. W. 698; Reigart v Coke Co., 217 Mo. 142; Anderson v. Hall, 2:73 Mo. 307; Cement. Company v. Kreis, 261 Mo. 170; Carrick v. Mincke, 60 Mo. App. 140. To allow the existence, terms, and conditions, of a written authority to rest in and be established by parol, nullifies the statute and defeats it.s design. (2)' The answer failed to state facts sufficient to constitute any cause of action against the plaintiff, or any defense to plaintiff’s action, in that, it failed to allege: (a) That the alleged agent, Prank Scott, was authorized in writing to enter into any contract to sell this land to the defendant. Rucker v. Harrington, 52 Mo. App. 491-2; Tombs v. Bayse, 65 Mo. App. 30. (b) That the alleged agent was authorized to sell this land and contract with defendant, that plaintiff would make a good warranty deed to him for same upon the' payment of the second note, in consideration of the payment of $25 in cash and the execution of fifteen notes for $25 each, with eight per cent interest from July 28, 1916, secured by deed .of trust on the property. Kelley v. Thuey, 143 Mo. 435; Ringer v. Holtzclaw, 112 Mo. 522!; Johnson v. Pecht, 185 Mo. 335. (c) That defendant had executed the notes and deed of trust, or offered to do so, or that the execution thereof was excused or prevented by plaintiff. Wendover v. Baker, 121 Mo. 290; 38 Cyc. 778; Ranch v. Wickwire, 255 Mo. 61. (3) There was no competent substantial evidence to sustain the judgment rendered, (a) There was no competent evidence offered tending’ to show that Scott had any authority to make the contract he made. Johnson v. Fecht, 185 Mo. 335. (h) There was no evidence tending to show that defendant, at the time he made the contract with Scott, executed or offered to execute the notes and deed of trust, or that the execution of the same was excused or prevented by plaintiff, or that defendant ever offered to execute the notes or deed of trust until in October, 1916, after plaintiff had learned of the alleged sale and repudiated it. Defendant had not complied with the contract made. Wendover v. Baker, 121 Mo. 290. (c) There was no tender into court, of the amount defendant would owe the plaintiff, under the contract, he seeks to enforce, to-wit, $137.50 and notes, and deed of trust.

      J. E. Duncan and J. E. Breioer for respondent.
   MOZLEY, C.

This action concerns the ownership, between plaintiff and defendant, of Lot 1, in Block 31, in Hunter’s Addition to the City of Caruthersville, 'Pemiscot County, Missouri.

Suit to quiet title thereto was brought by plaintiff in the circuit court of said county, June 23, 1917, in' two counts, one to quiet the title under the provisions of Section 2535, Revised Statutes 1909, and the other to recover possession, damages, monthly rent, etc., until the possession of said lot was restored.

Defendant pleaded in his answer that on July 28, 1936, and now, he was the owner and in the lawful possession of said lot^and that on said day plaintiff, by his agent Prank Scott, contracted with defendant in writing to sell, and did sell, said lot to him at the price and sum of $400 — twenty-five dollars in cash, defendant to execute fifteen promissory notes of that date, each for twenty-five dollars, payable one every three months, with interest at eight per cent from date, and when the second of said notes was paid to him defendant, in turn, was to give plaintiff a deed of trust thereon to secure the payment of the remainder' of said notes, but by mutual mistake of said Frank Scott, who wrote said contract, and defendant, said contract provided for the making of seven notes only, when by the terms of the contract actually made it should have provided for fifteen notes.; alleged further that he had paid twenty-five dollars to plaintiff and had made valuable and lasting improvements on said lot, aggregating $200; alleged that he was willing and ready to pay plaintiff all of the money due on said contract and to give said deed of trust to secure the remainder of said notes and, in all things, do as he had contracted, but alleged that plaintiff refused, and still refuses, to comply with his part" ‘of said contract.

Plaintiff replied with a specific denial of all of the averments of said answer.

The contract of sale of said lot between plaintiff and defendant was offered and read in evidence, and is as follows:

“Agreement made this, the 28th day of July, 1916, between David Welch of Anaheim, California, party of the first part, and George Veasley of Caruthersville, Missouri, party of the second part;
“The said party of the first part hereby agrees to sell and convey by good warranty deed to the party of the second part the following described property;
“All of Lot 1, in Block 31, Hunter’s Addition to. .Caruthersville, Missouri, for and in consideration of the sum of four hundred dollars to be paid by said party of the second part in the manner as* follows:
“Twenty-five dollars- cash, the receipt whereof is hereby acknowledged, and to execute seven promissory notes, payable one in every three months, of twenty-five dollars each, bearing interest at eight per cent.
.“That the party of the first part after receiving payment on the second note shall prepare and deliver •a good warranty deed, to the party of the second part, and the party of the second part shall deliver to the party of the first part his ‘Deed of Trusi’ to secure the remainder of .the payments.
“Witness the hands and seals of the said parties on the day and said year first above written.
“David Welch, By Frank Scott, Agent.
His
“George X. Yeasley, Mart.
“Witness Mrs. R. M. Forster.”

The canse was tried as an action in equity before the court, without instructions, and decree went for defendant, adjudging the correction of said contract in accordance with defendant’s answer and the performance thereof as corrected.

After a motion for a new trial had been overruled by the court, the cause was duly appealed to this court.

I. The pivotal question in this case is, was plaintiff’s agent, Frank Scott, authorized to sell the lot in question to defendant?

On this point plaintiff testified as follows:

“I wrote letters to Frank Scott. I did not write him or tell him to sell this property in question. I never heard of George Veasley wanting to buy this property in question until I came'back. I did not authorize him to sell this lot in question, I never knew it was sold, I didn’t know he wanted it. I never did tell him to sell the property for $400. I never wrote him to do so. I didn’t know it was sold till I got here. .He sold the lot for less than I ever thought of selling it. I never gave Scott any authority in regard to this property. I would not have signedffhe papers conveying the property to Yeasley for $400. The only power Scott ever had was to collect rents.”

In support of the authority claimed under said written contract (which was drawn by said agent, who signed plaintiff’s name thereto) to sell said lot to Yeasley, said agent testified as follows:

“I have had correspondence with David Welch, before this, with reference to selling this lot. I have lost the letter. I can’t find it anywhere. I have looked through my files. I found a few letters, but not that one. David Welch was living in California at the time. I don’t have any recollection that I wrote anything about selling it to Yeasley. I wrote him for his price on that and other property. He wrote me not to sell any of his property for less than $500, except this one and one other. This one for $400, — $25 cash, and $25 every three months at eight per cent. Nothing was said about making a deed therefor.”

Where the Statute of Frauds requires a contract to be in writing (Sec. 2788, R. S. 1909) and said contract has been lost, parole evidence as to its terms and provisions must be clear and convincing. [Ringer v. Holtzclaw, 112 Mo. 519; Warren v. Mayer Mfg. Co., 161 Mo. 112; Johnson v. Fecht, 185 Mo. l. c. 345; Reigart v. Coal & Coke Co., 217 Mo. l. c. 156 to 159; Smith v. Jones, 66 Ga. 338; 17 R. C. L. sec. 31, p. 1197; 25 R. C. L. sec. 266, p. 638; Van Boskerck v. Torbert, 184 Fed. 419; White v. Bigelow, 154 Mass. 593-95; Elwell v. Walker, 52 Iowa, 256; McCarty v. Kyle, 4 Cold. (Tenn.) 348; Van Horn v. Demarest, 76 N. J. Eq. 386, 389; 29 Am. & Eng. Ency. Law (2 Ed.), p. 824, par. 8; Scurry v. Seattle, 104 Pac. (Wash.) 1129; Cocke v. Evans, 9 Yerg. (Tenn.) 287-88.]

Now, in the instant case, the alleged written authority to make the sale of said lot to defendant was lost, and to establish what it was by parole the proof, under the above authorities, must have been “clear and convincing. ’ ’

According to the testimony of said agent nothing was said to him by plaintiff about selling said lot to defendant, or about making a deed to defendant therefor. Furthermore, he had upon no previous occasion assumed the authority and responsibility to sign plaintiff’s name- to any contract to sell his property.

II. This is an equity suit and we make our own finding of facts ‘‘unless our minds run in the same channel as that of the chancellor below on the facts, or unless they are close and conflicting and we defer to his better position to judge of the credibility of the witnesses.” [State ex rel. M. K. & T. Ry. v. Pub. Serv. Comm., 277 Mo. l. c. 193; State ex rel. v. Pub. Serv. Comm., 271 Mo. 155; Gibson v. Shull, 251 Mo. 480.]

If Scott had written authority to sell said lot to defendant and it was lost, defendant in asserting the existence of such authority carried the burden of establishing its existence by “clear and convincing” testimony.

We cannot agree with the finding of fact by the learned chancellor below that plaintiff had given written authority to Scott to sell said lot to defendant. Proof of the existence of such authority was not only not “clear and convincing,” but the preponderance thereof was in favor of plaintiff — that he had never given Scott any authority, either verbal or in writing, to sell said lot to defendant.

Said Section 2783, supra, provides that “no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.”

It is easy to see that if such contract can be made without written authority, or by alleged written authority which is lost, and the existence of which has not been established by proof “clear and convincing,” said statute will be devitalized, and the road to fraud in such transactions made easy and straight.

Under this record plaintiff should have recovered.

It results that the cause will have to be reversed and remanded with directions to the chancellor to enter judgment for plaintiff.

It is so ordered.

Bailey and White, G'C., concur.

PER CURIAM:

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

All of the judges concur.


author: WHITE, C PER C'URIAM:-

text:
    MARY GRAY, MINNIE ARTEL, ADÉLE JOYCE, FRANCES TOHER and FRANK F. BROKEL, by His Nest Friend, ROSE BROKEL, Appellants, v. MICHAEL CLEMENT, FRANCES CLEMENT and EMMA REIDMEYER.
    Division Two,
    December 30, 1920.
    1. PARTITION: Between Life Tenants and Remaindermen. Tlie only estates authorized by the statute (See. 2559, R. S. 1909) to be partitioned are estates which are coterminous and not successive. Cotenants of a life estate may have partition of their life estate which would not affect the remaindermen; or remaindermen who are tenants in common may have partition of the remainder, subject to the life estate. But there is no authority for a partition between the life tenant and remaindermen.
    2. -: Judgment: Jurisdiction: Collateral Attack. Where the judgment in partition showed that the plaintiffs had a life estate and the defendants a remainder, it showed on its face that the court did not have jurisdiction to render the particular judgment in that particular case, namely, a decree in partition, ordering the interests of both plaintiffs and defendants to be sold and conveyed to the purchaser, and therefore said judgment is subject to collateral attack, being void.
    3. -: -: Estoppel: Guardian Ad Litem. Minor remainder-men in the partition suit brought by the life tenant are not es-topped to attack the judgment as void if there is no showing that they received some of the proceeds of the sale. Nor were they capable of consenting to any disposition of the fund by their father who was appointed trustee to preserve it for their use; nor Was their guardian ad litem authorized to consent for them, for such a guardian has no authority except to defend the partition suit, and none to contract on behalf of minors for the disposition of the proceeds of the sale.
    4. -■ — ■: -: -: Improvements. Nor can the defense be sustained that the remaindermen are estopped to assert that the judgment in partition was void because, after they ceased to be minors, they stood by and saw valuable improvements erected - upon the property sold1 under the decree, if at the time the improvements were made they were still minors, and there is no evidence as to who erected the improvements, or what they cost, or that the remaindermen knew anything about them, or that the present claimants had anything to do with building them.

      Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.
    Reversed AND remanded.

      T. J. Rowe and T. J. Ro%ve, Jr., for appellants.
    (1) The circuit court had no jurisdiction to render a judgment in partition in the case of Josephine Brokel and Prank Brokel v. Mary Brokel et al., because the petition showed on its face that Josephine Brokel had an estate for life in said property, and under the statute a life tenant cannot maintain partition against those having the estate in remainder. Sec. 3339, R. S. 1879, now Sec. 2559, R. S. 1909; Stockwell v. Stockwell, 262 Mo. 671. (2) Though a court may possess jurisdiction of the subject-matter and of the parties, it is still limited in its 'modes of procedure and in the character and- extent of its judgments. It must act judicially in all things and cannot .then transcend the power conferred by law. Windsor v. McVeigh, 93 IJ. S. 294; State ex rel. v. Muench, 217 Mo. 137; Reynolds v. Stockton, 140 IT. S. 254; Andrew Stephens’ Pleadings (2* Ed.), p. 34. (3) The common source of title to real estate described in the petition was Francois Giraldin; the defendants Michael Clement, and Frances Clement acquired by mense conveyances an estate in the property during the life of Josephine Brokel and at the death of Josephine Brokel their estate terminated and the plaintiffs aiid Emma Reidmeyer after the death of Josephine Brokel had an estate in fee simple in said real estate. (4) Upon the allegations of the petition in the case of Josephine Brokel et al. v. Mary Brokel et al., the circuit court should have dismissed the proceedings because the petition showed on its face that no judgment or decree in partition could be rendered in the case. Throckmorton v. Pense, 126 Mo. 58.

      Marion G. Early for respondents.
    (1) A judgment in partition in a suit brought solely by the life tenant as plaintiff against-the remainder-men as defendants, though erroneous, is not void; and a purchaser at a sale under such a decree has a title that cannot be attacked collaterally. Cromwell v. Hull, 97 N. T. 209; Reed v. Reed, 107 N. T. 545; Harrison v. Higgins, 218 N. Y. 556. (2) When the court has cognizance of the class of cases to which the one adjudged belongs, and of the parties, and when the point decided is within the issues, the point decided, though erroneously, is res' adjudícala, and cannot be attacked collaterally. Hager-man v. Sutton, 91 Mo. 519; Rivard v. Railroad, 257 Mo. 135; Jaco v. Railroad, 94 Mo. App. 567; Winningham v. Trueblood, 149 Mo. 580; Chrisman v. Divinia, 141 Mo. 122; King v. Theis, 272 Mo. 416; Cochran v. Thomas, 131 Mo. 258; Sparks v. Clay, 185 Mo. 393, as construed in Stockwell v. Stockwell, 262 Mo. 671. (3) If the owner of an interest in property receives as such the proceeds of the sale of that property under a judicial sale, then, even though the judicial proceeding.be void, such owner cannot assert his title against the purchaser at such sale. Hector v. Mann, 225 Mo. 228; Pockman v. Meatt, 49 Mo. 345; Proctor v. Nance, 220 Mo. 104; Cape Railroad v. Southern Bridge Co., 215 Mo. 286. (4) What the guar-' dian ad litem in'a partition suit does in that case on behalf of the minor is as binding on the latter as if it had been done by him after his disabilities were removed. R. S. 1909, sec. 2566, 2567; LeBourg;eois v. McNamara, 82 Mo. 189; Payne v. Masek, 114 Mo. 631. (5) When one knowingly, though he does it passively by looking on, suffers another, under an erroneous opinion as to his title, to expend money on that land, he’ shall not after-wards be permitted to enforce his legal title. Wendell v. Van Renselaer, 1 Johns Ch. 244; Withers v. Railroad, 226 Mo. 373; Guffey v. O’Reily, 88 Mo. 418; Palmer v. Welch, 171 Mo. App. 580.
   WHITE, C

This suit, under Section 2535, Revised Statutes 1909, is to determine title to certain land in the City of Saint Louis. There was judgment for the defendants, and plaintiffs appealed. The common source of title was.Francois Giraldin who died m 1878. The plaintiffs claimed under his will. The defendants claimed under a sale made in pursuance of a decree of partition, wherein the devisees of Francois Giraldin were parties.

The will of Giraldin, filed and probated December 26, 1878, in the Prohate Court of the City of Saint Louis, devised to Josephine Brokel, his only living child, the wife of Francis Brokel, all the revenue and income out of the land 'in controversy for her natural life, and directed that after her death the property should be divided equally among her children or their descendants. In 1880 Josephine Brokel and Francis Brokel, her husband, instituted a partition proceeding in the Circuit Court of the City of Saint Louis, against their children Mary Brokel, now the plaintiff Mary Gray; Emma Brokel, now the defendant Emma Reidmeyer; Josephine Brokel, now the plaintiff Minnie Artel; Joseph Brokel, now deceased; and Adele Brokel, now plaintiff Adele Joyce.

Due service was had on defendants; then in regular order followed a decree of partition, order of sale, appointment of special commissioner to make the sale, property sold on June 28, 1880, when Frank Brokel became the purchaser for $400. The special commissioner made report of the sale, which was approved by the court, and a deed executed accordingly on the 13th day of July, 1880, conveying the property to Frank Brokel. All the parties to that proceeding are parties here except Joseph Brokel, deceased. 'One of the plaintiffs, Frances Toher, was not bom at that time, she having been born to Josephine Brokel after the death of Francois Giraldin. Plaintiff Frank F. Brokel, a minor, at the institution of this suit, was the only surviving son of Joseph Brokel, deceased.

The defendants Michael Clement and Prances Clement derived their title by mesne conveyance from Prank and Josephine Brokel. If the said partition proceeding was regular and effective to pass any title to Prank Brokel", then Prank Brokel acquired title to all the premises because all the parties mentioned in the will in connection with the tract of land were made parties to that proceeding. At the time of the partition proceeding, however, all the plaintiffs herein then living were minors; Mary Gray, the eldest, being sixteen years of age; Minnie Artel, eight years of age; Adele Joyce, five years of age; Prances Toher, not yet born; and Emma Reidmeyer, defendant here, was thirteen years of age. .

Josephine Brokel died in September, 1917, leaving as her only children the plaintiffs, and defendant Emma Reidmeyer.

The petition in that partition proceeding, which was introduced in evidence here, sets out the provisions of the will above mentioned and the relationship of the parties, Josephine Brokel being the mother of the minor defendants, then alleges:

“That the parties hereto have title to said land, as follows:
“Said Josephine Brokel (one of the plaintiffs) is entitled to a life estate in said land; said Prank Brokel to his right by curtesy in said land.
“That the said defendants’ respective interests in said lands are as follows: The said Mary, Emma, Josephine, Joseph and Adele Brokel are each entitled under said will to a one-fifth interest in fee in said land subject to the life estate of the plaintiff, Josephine Brokel, and the right by the curtesy of ^aid Prank Brokel, and also subject to the rights of any and all children of said Josephine Brokel (plaintiff) that may be yet unborn.”

The judgment of the Circuit Court of the City of Saint Louis in that case, rendered May 26, 1880, after reciting the appearances of the parties and giving a description of the land, continues:

“And the court doth further ascertain aud determine the respective rights and interests of said parties in said real estate to he as follows, to-wit:
“That the plaintiff, Josephine Brokel, is entitled to a life estate in said real estate, and that the defendants are each entitled to an undivided one-fifth interest in fee in said land, subject to the life estate of their mother, the said plaintiff Josephine Brokel, and also subject to the rights,.of any and all children of said plaintiff, Josephine Brokel, that may he yet unborn.
“It Is therefore ordered, adjudged and decreed by the court that partition of said real estate be made among the owners thereof according to their respective rights and interests as hereinbefore ascertained and determined. ’ ’

The court then found that from the nature and amount of the property it could not be divided in kind ■without great- prejudice to the owners, ordered that the property be sold, and appointed Jephtha H. Simpson, special commissioner “to sell said property and compute the present value of the life estate to the said plaintiff, Josephine Brokel, in the proceeds of said sale, and to make report thereon to this court according to law.” The report was duly made and a deed conveying the property to Frank Brokel was duly executed by Simpson, as‘stated. The deed recited the judgment and the proceedings of the court, as stated.

The record of the court further showed that one II. M. Wilcox was appointed guardian ad litem for the defendant minors in said proceeding, and filed answer for them.

On July 9, 1880, after the report of the sále by the commissioner was approved, H. M. Wilcox, as guardian ad litem for the minors, and Simpson, the special commissioner, signed and presented to the court a petition setting forth that the special commissioner, after paying all the costs, attorneys’ fees, and the amount due Josephine Brokel for her life estate, had in his hands $91.20, which sum was to be .equally divided among all the defendants, and any and all children which, thereafter might be born to the said Josephine Brokel; and owing to the uncertainty as to the number of children that might yet be born to Josephine Brokel, the said sum of $91.20 could not at the time be divided; that the said commissioner desired to be relieved of the money and discharged; and the petitioners prayed the court to appoint Prank Brokel, the father of the minors, as trustee to hold said funds for the minors which are now or hereafter may be born.” This petition was sustained; the commissioner was ordered to pay $183.60 to Josephine Brokel, the estimated value of her life estate; Prank Brokel was appointed trustee to take charge of the $91.20, and his bond fixed at $350.

I. The plaintiff claims tha't the partition proceeding was void because, under Section 2559 the court had no power to make partition of land between the life tenant and the remaindermen. That section is as follows:

“Sec. 2559. Partition, suit for, by whom brought, how determined. In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for a sale of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests. ’ ’

Early cases construing that statute have been followed by very recent cases in which it is held that the authority of a court to order a partition without the consent of all the parties is limited by the terms of the statute. The only estates authorized by Section 2559, Revised Statutes 1909, to be partitioned are estates which are coterminous and not successive; co-tenants of a life estate may have partition of their life estate which would not affect the remainder; or, remaindermen, tenants in common, may have a partition of the remainder subject to the life estate. But there is no authority for a partition between the life tenant and a remainderman. [Stockwell v. Stockwell, 262 Mo. 671, l. c. 679, 680, 681, 682; Carson v. Hecke, 282 Mo. 580, 222 S. W. 850, l. c. 853.] The opinions in these cases review many cases in this State and reach the conclusion as stated. It is said in the Heckecase, l. c. 853:

‘‘But in this jurisdiction and most, others a tenant for life, whether by curtesy or otherwise, absent statutory authority, cannot compel partition against remain-dermen and reversioners, nor they against him, and between such estates the remedy is unavailable except by consent of the respective owners. This is because no. common interest exists between them of any character, either in coparcenary, tenancy in common or joint tenancy. ’ ’

II. The respondent, however, claims that a decree of partition contrary to that provision of the statute is at most an irregularity, and does not render the decree character void so as to make it vulnerable to a collateral attack, because the court had jurisdiction of the parties and the subject-matter.

A passage often quoted as defining in general what is necessary to confer jurisdiction is found in Stark v. Kirchgraber, 186 Mo. 633, l. c. 645 and 646, as follows:

“Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case; to constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the issue to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be in substance and effect within the issue.”

The explanation of jurisdiction appears in the case of Rivard v. Railroad, opinion by Bond, J., 257 Mo. 135, l. c. 168, more accurately defining the third essential:

“It follows that the judgment of a court of general jurisdiction with the parties before it and the power to grant or refuse relief in the case presented, although contrary to law as expressed in the decisions ‘of the Supreme Court and the terms of «the statute, is at most only an erroneous exercise of jurisdiction and as such is impregnable to assault in a collateral proceeding.” (Italics ours.)

That case is cited by the respondent in support of its position. There is no doubt in this case that the court had authority to order partition of real estate, and no doubt that the parties were before it. The only question arising is whether the third essential was present. “Did the court have the power to grant or refuse the relief in the case presented,” as it is put in the Rivard case?

The question in the Kirchgraber .case involved the validity of the sale ordered by the probate court of lands to pay debts. The statute did not authorize an order to sell real estate to pay debts except upon the application of executor, or administrator, or curator, or other person interested in the estate; the application for the order was made by some person who was none of those mentioned. While this did not appear upon the face of the judgment, it did appear upon the entire record of the proceeding; the order and sale under it were held void, and were subject to collateral attack. It was held also in that case that the judgment of a probate court’ on matters within its jurisdiction was entitled to the same presumption as a judgment of a court of general jurisdiction ; but such judgment might be overthrown by other portions of the record besides the judgment itself, “of equal dignity and importing the same verity which would demonstrate that the recitals of the judgment were untrue.”

The Kirchgraber case has been cited with approval several times. In the case of Smith v. Black, 231 Mo. 681, this court distinguishing the Kirchgraber case used these words, l. c. 693:

“First. Where the Constitution or statute absolutely prohibits a court from doing a particular thing then the order or judgment of the court made in violation thereof is absolutely void for loant of jurisdiction and may be assailed in a collateral proceeding.”

In that case the administrator, contrary to the statute, had sold the property for less than three-fourths of its value, and the court held the judgment was good against collateral attack, but approved of the ruling in the Kirchgraber case. In the Kirchgraber case the court did not acquire jurisdiction to order the sale because -no person interested in the estate petitioned for the sale, and the record on its face showed that fact. In the Black case the court had authority to order the sale, and the subsequent irregularity did not render the order open to collateral attack.

In the present case the court had jurisdiction of the general class of cases and of the persons, but it had no authority, in the language of the Rivard case, “to grant the relief in the case presented.” The statute did not authorize partition of the estates set out in the petition and recited in the judgment.

Where the record of a judgment shows on its face that the court did not have authority to grant the particular relief which it did grant, the judgment is void and subject to collateral attack. There must be jurisdiction of the matter acted upon; the court must have the power “to render the particular judgment in the particular case” before it can be said to have jurisdiction. [Charles v. White, 214 Mo. l. c. 208; Kansas City v. Mullins, 209 S. W. 558; Norton v. Reed, 253 Mo. 236. l. c. 252.] The petition in the partition suit under consideration, and the judgment itself, recites that Josephine Brokel has a life estate in the premises, and the defendants have the remainder. It does not matter whether the remainder were vested or contingent. The judgment shows on its face that the relief granted was such as the court could not render in that class of cases. Therefore, it is void and subject to collateral attack.

III. The respondent claims, however, that the defendants in that case who are the plaintiffs here, are estopped to claim the judgment is void because they had

received benefits of the sale under it. That is alleged in the answer. The only proof in relation to the matter was the petition presented by the guardian ad litem requesting that a commissioner be appointed to take charge of the $91.20, which would be distributed among the heirs. Authorities are cited to the effect that where one receives the proceeds of a sale under a void judgment, he is thereby estopped to claim it is void. There is no evidence whatever that ,any of the defendant minors received any benefit whatever from any of the proceeds of the partition sale. The trial court found that there was no evidence showing any disposition of the fund of $91.20. Frank Brokel, father of the minors, was appointed trustee to handle that money, but there is no evidence that he ever received it unless he retained it out of the purchase money which he was to pay to the commissioner. The minors could not consent to a disposition of the money, so as to bind them in any way whatever. It is argued by the respondent here that the guardian ad litem under the statute had the same authority as a general guardian; the minors, therefore, were bound by the action of the guardian ad litem in causing the appointment of a trustee. There is no foundation for that position. Under Section 2567, Revised Statutes 1909, the court may appoint a guardian ad litem in a partition proceeding who shall have the same powers as a general guardian “for all the purposes of this articlethat is, the article in relation to partition. This court has held in the case of Scott v. Royston, 223 Mo. 568, that “a guardian ad litem in a partition proceeding has exactly the same authority as a guardian ad litem in any other proceeding,” l. c. 613. A guardian ad litem has no authority except to defend the suit. [McClure v. Farthing, 51 Mo. 109.] He may make in some instances a stipulation relating to the conduct of the suit, but he has no authority whatever to make a contract on behalf of the minor whom he represents in relation to the disposition of the corpus of the estate. [Scott v. Royston, 223 Mo. l. c. 609.]

The minors were not bound by the action of the guardian ad litem in the proceeding to have a trustee appointed to take charge of any fund belonging to them, and are not estopped by such action. Consideration of a situation very similar to that appears in the case of Scott v. Royston, 223 Mo. 1. c. 616, where the opinion holds the receipt of money by a trustee from which the minors get no benefit did not estop them to attack collaterally the judgment under which the money was paid.

It is further claimed that the plaintiffs here were estopped to assert the judgment and sale in partition were void because they stood by and saw the property improved. Some of the evidence indicates that the prop- ■ erty is vacant. The only evidence offered as to any improvements made upon the land was the testimony of Michael Clement, defendant. He said he was familiar with the premises in 1880, 1882 and 1883, and that some buildings were put up on the land in 1882 or 1883, he could not remember the time; he stated they were good substantial buildings. He said he didn’t know whether -Joseph Brokel was there at the time the buildings were erected or not. He said not a word to show who erected the buildings or what they cost; that the plaintiffs here knew anything about them, or that defendants, or those under whom they claim, had anything to do with building them. From aught that appears they might have been built by strangers or by the plaintiffs in this case. The claim of .estoppel is not sustained by the evidence.

The judgment is reversed and the cause remanded.

Bailey and Mosley, GG., concur.

PER C'URIAM:-

The foreging opinion by White, 0., is adopted as the opinion of the court.

All of the judges concur.


author: WALKER, J.

text:
    PACIFIC LIME & GYPSUM COMPANY et al., Appellants, v. MISSOURI BRIDGE & IRON COMPANY.
    Division Two,
    December 30, 1920.
    1. PLEADING: Demurrer: Oyer: Instrument or Exhibit. The archaic ceremonial of “craving oyer” is unknown to modern civil procedure. Where a proferí is authorized and becomes necessary to a proper statement of issuable facts, the instrument prayed for may be incorporated in the pleading, or if not necessary but deemed essential to a clear understanding of the issues, it may by proper reference be attached to the pleading as an exhibit; but where the instrument sued on is set out in the petition or attached to it as an exhibit, it is wholly unnecessary to incorporate in a demurrer thereto a prayer for the production of such instrument.
    2. -: -: Office: Incorporation of Defenses. A demurrer should contain only affirmative averments assailing the petition as being defective in some one or more of the particulars made a ground of demurrer by the statute. The incorporation of other matters therein calls for no ruling except such as may he necessary to the determination of a motion to strike it from the files.
    3. -:-: Speaking Demurrer. No such pleading as a “speaking demurrer,” that is, a demurrer alleging affirmative matter which, taken with the allegations of the petition, shows that no cause of action was stated, is recognized by our procedure.
    4. -: -: Matters Considered. Mere exhibits constitute no part of the petition for the purpose of demurrer, whether'incorporated in it or not. And if matters or defenses other than affirmative averments assailing the sufficiency of the petition in one or more of the particulars made grounds of demurrer by the statute are inserted therein, they will he ignored, and only those averments that assail the petition will he considered.
    5. ARBITRATION: Vacation: Equity Jurisdiction: Action at Law: Demurrer. A petition to set aside the award of an arbitrator on the ground of fraud, mistake or partiality, is a suit in equity, and a demurrer thereto cannot he sustained on the ground that the plaintiff has an adequate remedy at law under the statute which permits an appealing party to file a motion to vacate the award. Said statute (Sec. 891, R. S. 1909) expressly provides that the statutory remedy shall not affect equitable jurisdiction.
    6. -: Partiality: Demurrer. A petition to set aside the award of an arbitrator which states facts showing he was partial, alleging among other pertinent facts that he wilfully omitted to consider certain material evidence tendered and as a consequence failed to award to plaintiff a large sum of money to which it was justly entitled, sufficiently alleges the partiality of the arbitrator.
    Appeal from St. Louis City Circuit Court. — Hon. Vital W. Garesche, Judge.
    REVERSED' AND REMANDED.

      M. N. Sale and David Goldsmith for appellants.
    (1) The allegations of the petition, showing partiality on the part of the arbitrator, in themselves war-' rant the reversal of the judgment in this cause. Hyeron-imus v. Allison, 52 Mo. 105, 106; Shawhan v. Bater, 167 Mo. App. 36; Bridgman v. Bridgman, 23 Mo. 272; Scholz v. Mills, 176 Mo. App. 377; Allen v. Hicham, 156 Mo. 58. (2) The complete misconception by the arbitrator of the evidence concerning the investment, even if unintentional, vitiates his award. Newman v. Labeaume, 9 Mo. 36; Roberts Brothers v. Can Co., 102 Md. 362; Torrance v. Amsden, 3 McLean, 509 ; Donaldson v. Buhlman, 134 Wis. 117; Bartlett v. L. Bartlett & Son Co., 116 Wis. 450; American School Co. v. Sheldon, 12 R. I. 324:; Arnold v. Mason, 11 R. I. 242; Tomlinson v. Tomlinson, 3 Iowa, 575; Rand v. Redington, 13 N. H. 76; Pluharty v. Beatty, 22 W. Va. 706; Buys v. Eberhardt, 3 Mich. 631; Barrows v. Sweet, 143 Mass.. 316; Allen v. Smith’s Admr., 4 Harrington (Del.) 236; White Railroad Co. v., Beane, 39 N. H. 107; Interstate Commerce Comm. v. Railroad, 227 U. S. 91. (3) The failure of the arbitrator to exercise the powers entrusted to him vitiates his award without proof of bad faith on Ms part. Newman y. Labeaume, 9 Mo. 37; Raleigh Goal Co. y. Mankin/97 S. E. 299.

      Cobbs & Logan for respondent.
    (1) It is the established general policy of this State to encourage arbitrations and to uphold awards. Newman v. Labeaume, 9 Mo. 35; Bennett’s Admr. v. Russell, 34 Mo. 528; Tucker v. Allen, 47 Mo. 487; State ex rel. Kennedy v. Merchant’s Exchange, 2! Mo. App. 99. (2) The award of an arbitrator is a final judgment. 5 C. J. 43, 139, 162; Buchell y. Marsh, 17 How, (U. S.) 344; Searles v. Lum, 81 Mo. App. 611; Williams v. Branning Mfg. Co., 153 N. C. 7, 31 L. R. A. (N. S.) 681; Thatcher I. M. Co. v. Brubaker, 193 Mo. App. 627. (3) The amended petition is fatally defective because it omits material parts of the award. (4) The amended petition is insufficient because it shows on its face that there is an adequate remedy,at law. (5) Plaintiff waived all defenses and all right to object to the award. (6) The allegations of the amended petition are neither specific enough nor sufficient to justify vacating the award. '5 G. J. 199, 203, 205; Bennett’s Admr. v. Russell, 34 Mo. 527; Shawhan v. Baker, 167 Mo. App. 34; Allen v. Hickman, 156 Mo. 58; Cochran y. Bartle, 91 Mo. 647; Bridgman y. Bridgman, 23 Mo. 274; Taylor v. Scott, 26 Mo. App. 250, 252; Reeves v. McGlochlin, 65 Mo. App. 542. (7) Equity follows the law, and plaintiffs will be required to alleg’e and prove one of the statutory grounds for vacating the award. Sec. 877, R. S. 1909. (8) There was no misconception'by the arbitrator of the evidence concerning the investment. (9) A court of equity will not correct a misake which “results from the mere negligence of the losing party.” Valle v. Railroad, 37 Mo. 451; Shawhan v. Baker, 167 Mo. App. 34.
   WALKER, J.

This is a suit in equity to set aside the award of an arbitrator. A demurrer to the petition was sustained in the circuit court. Plaintiffs refused to plead further, judgment was rendered on the demurrer, and an appeal was perfected to this court. The only question involved is the sufficiency of the petition. Before discussing same the propriety or, more forcefully stated, the authority for the filing of such a demurrer as is here submitted, is necessary. An abstract rather than a prolix incorporation herein of this entire pleading will suffice to afford an intelligent discussion and an authorized construction and disposition of same. After stating that it is a demurrer to the petition, craving oyer and asking a production by the plaintiff of the arbitration agreement which had been filed with the petition as an exhibit, the pleader proceeds to set- forth in haec verba said agreement, the formal appointment of the arbitrator and his opinion and award. Following this voluminous presentation, the specific grounds of the demurrer are thus stated:

“First: That said first amended petition does not state facts sufficient to constitute a cause of action.
Second: That the facts stated in said first amended petition are not sufficient to justify the relief prayed for therein.
“Third: That nothing in said first amended petition shows that there has been any fraud, mistake, of misconduct which would justify a court of equity in setting aside said award.
“Fourth: That said award as set out in said first amended petition is not the full and complete award as filed in this court, and as shown above.
•“Fifth: That said award shows on its face and from the first amended petition that it is a full, mutual, final and definite award on the subject-matter submitted to said arbitrator, and that it is free from any partiality, injustice, fraud or misconduct, which would justify any court in vacating the same.
“Sixth: That the said first amended petition sets out only part of said award and omits some of the essential parts thereof, and that the parts so omitted are necessary to make said petition complete, and that the failure to incorporate the whole of said award renders said petition insufficient and subject to demurrer.
“Seventh: That, as shown by said first amended petition, the said award mentioned therein and the arbitration agreement mentioned therein were filed in this court on, to-wit, the 28th day of January, 1916, and in cause numbered 1892, and that a motion was filed in this court by the defendant to confirm said award, and that the plaintiff herein filed a motion in said cause to vacate said award prior to the filing of the original petition in this cause, and that said motion is still pending, and that said cause numbered 1892 has been referred to and assigned to the same division, and is now pending in the same room with this cause, and is undetermined; and that by filing, said motion to vacate said award in said caus.e 1892, plaintiff elected the statutory remedy and waived its right to file this suit in equity, and cannot at the same time and in the same court and the same division of the same court prosecute two causes of action for the accomplishment of the same purpose.
“Wherefore, defendant prays the court to sustain its demurrer to said first amended petition and to hold the same wholly insufficient.”

First as to the form, second as to the subject-matter of the demurrer, that the extraneous and improper aver-ments therein, if any, may be excluded and only those directed against the face of the petition considered. The archaic ceremonial of “craving oyer” in unknown, not only to our procedure but to modern practice elsewhere. [Livingston County v. White, 30 Barb. (N. Y.) 72; Bright v. Currie, 5 Sandf. (N. Y.) 433; Welles v. Webster, 9 How. Pr. (N. Y.) 251.] Where a profert is authorized and becomes necessary to a proper ^statement of the issuable facts the instrument prayed for may be incorporated in the pleading, or, if not necessary but deemed essential to a clear understanding of the issues, it may by proper reference be attached to the pleading as an exhibit. [31 Cyc. 547, Subdiv. IX & notes.] If any authority existed for the incorporation of the prayer in the demurrer it was unnecessary because the agreement of arbitration, whose production was prayed, was not only filed as an exhibit to the petition, but was incorporated in the demurrer. Under any state of facts, however, the prayer for oyer was unauthorized.

Our code expressly defines the. purview of a demurrer as being limited to what appears on the face of the petition in the following particulars:

“First, that the court has ho jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between the same parties, for the same cause, in this State; or, fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that several causes of action have been improperly united; or, sixth, that the petition does not state facts sufficient to constitute a cause of action; or, seventh, that a party plaintiff or defendant is not a necessary party to a complete determination of the action.” [Sec. 1800, R. S. 1909.]

The purpose .of this statute is to direct the trial court’s attention to the precise ground of objection relied on. [Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073.] To accomplish this the demurrer should contain only affirmative averments assailing the sufficiency of the petition in one or, if need be, more of the particulars prescribed. The incorporation in a demurrer, therefore, of other matter than such affirmative averments as are necessary to assail the sufficiency of the petition in the particulars stated, has neither the sanction of the code nor of precedent, and calls for no ruling of the trial court except such as may be necessary to the determination of a motion by opposing counsel to strike the same from the files.

A pleading such as was filed herein by the defendant is what is termed “a speaking demurrer,” that is, a demurrer alleging affirmative matter which, taken with the allegations of the petition, show that no cause of action was stated. No such pleading is recognized by our procedure. As Lamm, J., speaking for this court, said in Hubbard v. Slavens, 218 Mo. l. c. 622, “ Whatever may be the doctrine elsewhere, in this State a demurrer strikes squarely at the petition and nowhere else. Mere exhibits, under our practice, constitute no part of the petition for the purposes of a demurrer” (citing cases).

In a later case Coal & Iron Company v. Long, 231 Mo. l. c. 611, this court said: “It is elementary, however, in this jurisdiction (whatever the rule elsewhere) that on demurrer the allegations of the pleading struck at may be neither impugned nor aided by exhibits. A demurrer delivers a blow at the face of the pleading and nowhere else. Therefore, that which does not appear there is the same as if it did not exist, and what is hid away in an exhibit is out of the line of judicial vision on demurrer.”

The succeeding paragraphs of the demurrer will be considered so far as they may, under any reasonable interpretation, be held to properly assail the petition. Others will be ignored.

It is contended that material parts of the award necessary to a statement of the cause of action was omitted from the petition. An examination of the latter in conjunction with the award does not sustain this contention. On the contrary, so far as the award has any material relevancy to the claim of the plaintiff it is fully set forth in the petition.

It is further urged that the allegations of the petition disclose that the plaintiff had an adequate remedy at law and hence the invoking of equitable jurisdiction was unauthorized. By a remedy at law as contemplated by the defendant, reference is evidently intended to be made to the statute which permits an appealing party to file a motion to vacate an award. Upon the grounds stated in the petition an award could not have been vacated at the common law; for example, matters extrinsic thereto, such as .fraud, mistake or partiality in the arbitrator. Redress in such a case is in equity. While ordinarily the statutory remedy does not affect prior equitable jurisdiction, in tbe matter at bar the statute which authorizes the filing of a motion to vacate an award expressly provides that the statutory remedy shall not affect equitable jurisdiction. This statute is as follows:

“Nothing contained in this chapter shall impair or diminish or in any way affect the authority of the court, of equity over the awards of arbitrators, or the parties thereto, nor impair or affect any action upon any award, or upon any bond or other agreement to abide any a - ward.” [Sec. 891, R. S. 1909.]

Not only has this court, but the Kansas City Court of Appeals, held, after quoting with approval the language of the Supreme Court of Massachusetts in Strong v. Strong, 9 Cush. 560, that the foregoing statute “exhibits strong marks of legislative solicitude, that the arm of a court of equity in this regard should not be shortened. .. . So that authorities which might otherwise be pertinent as showing, under different statutory regulations, a preclusion of equitable interferences in cases of this sort, have no applicability when a statute such as ours is in force.” [Hyeronimus v. Allison, 52 Mo. l. c. 105; Shawhan v. Baker, 167 Mo. App. l. c. 37.]

There is no merit in the contention that the petition does not- sufficiently allege the partiality of the arbitrator. It sets forth abstracts from the award in the exact words of the latter wherein it is averred that he was guilty of partiality and in misstating the evidence; the particulars of such misstatement being specifically pleaded as follows:

“ £In .disregarding the aforesaid matters and things, and in failing to avail himself of said offer and tender of said Pacific Lime & Gypsum Company, and furthermore in failing to require said Pacific Lime & Gypsum Company to produce its said books, if he considered further information requisite, the said arbitrator failed and wilfully omitted to exercise the functions and offices which were confided to him by said agreement of arbitration, and which, as he well knew, the parties to said agreement intended he should exercise, and was grossly and willfully derelict in the performance of the duties which he owed the plaintiff under said agreement;’ and that, hut for the. dereliction of the arbitrator hereinbefore referred to, the arbitrator would have awarded the said Pacific Lime & Gypsum Company at least seventeen thousand dollars more than he did award it for its damages for the failure of the defendant to complete the mill within the time required by the contract. ’ ’

The petition further specifically alleges misfeasance on the part of the arbitrator in misconceiving the evidence adduced ás a sufficient ground to vitiate the award. Reference is made to this particular averment, not to pass upon its materiality as affording a ground for setting aside the award, although many authorities so hold, but to show that if tenable it is. well pleaded and, under the circumstances, not subject to demurrer.

The petition states a. cause of action and the ruling of the trial court is in error. The judgment is therefore reversed and the cause remanded.

All concur.