source: Caselaw Access Project

author: RAILET, C. PER CURIAM

license: Public Domain

text:
    EURNIE I. WOOD, Appellant, v. CONQUEROR TRUST COMPANY, Administrator of Estate of CHARLES E. WOOD, et al.
    Division One,
    June 30, 1915.
    1. DOWER IN MISSOURI LANDS: Bequest in Lieu of: No Renunciation of Foreign Will. The statute of the District of Columbia and the statute of Missouri are substantially alike in providing that where property is devised by will to the wife it shall be in lieu of dower, and in declaring that unless she renounces the will within a stated time she shall be deemed to elect to take the property given her by the will and to surrender • her statutory dower; and a widow, without children or other descendants, whose husband’s will gave her certain real estate in Washington, D. C., and a designated amount of money, who did not renounce the will probated in that city, is not entitled to claim one-half or any other interest in his real estate in Missouri, although she filed with the proper probate court in this State her election not to take under the will, and the will did not expressly say the devise and bequests to her were to be in lieu of dower.
    2. -: Renunciation of Will as a Whole: Accepting Beneficial Interest Under Will. One who accepts a beneficial interest under a will thereby adopts the whole will, and renounces every right or claim that is inconsistent with it. If the widow does not wish to accept as in lieu of dower the devises and bequests given her by her husband’s will, she must, in order to successfully claim her statutory dower in Missouri lands, renounce it. as a whole, whether he, at the time of his death, lived in this State or elsewhere, and whether or not the property devised to her lies within this State or elsewhere. If the husband died in the District of Columbia, leaving a will, probated there, by which he gave her certain real estate and personal property, and she accepted that will and those devises and bequests, she cannot by subsequently renouncing his will in this State become entitled to dower in his Missouri lands.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    Affirmed.

      Henry M. Foote, Frank W. Hackett, George J. Grayston and A. E. Spencer for appellant.
    (1) The right of dower is highly favored in this State and all doubts are resolved in its favor. Nothing except a plain mandate of the statute or a statutory command deduced by necessary implication will suffice to set dower to one side. Blevins v. Smith, 104 Mo. 588; Donaldson v. Donaldson, 249 Mo. 245; Crisman v. Linderman, 202 Mo. 614. And the widow’s right of election is regarded with the same favor. Martien v. Norris, 91 Mo. 46'5; Brown v. Tucker, 135 Mo. App. 598; Watson v. Watson, 28 Mo. 300; Bretz v. Matney, 60 Mo. 444; Spratt v. Lawson, 176 Mo. 175; Hamilton v. Jones, 155 Mo. App. 490; Coleman v. Coleman, 122 Mo. App. 715; Branford v. Wolfe, 103 Mo. 391; Keeney v. McYoy, 206 Mo. 42. The wife is entitled to dower in Missouri lands without regard to whether the parties are residents or non-residents. Stokes v. O ’Fallon, 2 Mo. 32; Thomas v. Woods, 173 Fed. 585. (2) At common law, the plaintiff would have been entitled to dower in the lands in this State. Schorr v. Etling, 124 Mo. 46; Jar-man on Wills (5 Am. Ed. 1881), pp. 458-471; Birmingham v. Kirwan, 2 Schoale and Lefroy, 444; French v. Davies, 2 Yes., Jr. 577; Havens v. Sackett, 15 N. Y. 365; Adsit v. Adsit, 2 John. Oh. 457; Larabee v. Van Alstyne, 1 Johns. 307. (3) The widow’s right to dower in her husband’s lands, the time and manner of assigning the same, and the causes by which it may be defeated are all determined by the law of the place where the property subject to dower is located. Hines v. Hines, 243 Mo. 494; Applegate v. Smith, 31 Mo. 166; Woerner, Adm., sec. 168, p. 378 and. sec. 42, p. 77; Roessle v. Roessle, 142 N. Y. Supp. 984; Jennings v. Jennings, 21 Ohio St. 56; Apperson v. Bolton, 29 Ark. 418; Thomas v. Woods, 173 Fed. 585, 97 O. C. A. 535, 26 L. R. A. (N. S.) 1180; Peet v. Peet, 229 111. 341; Mort v. Jones, 105 Va. 668; Van Blaricum v. Larson, 130 N. Y. Supp. 925; Carpenter v. Bell, 96 Tenn. 294; United States y. Fox, 94 U. S. 315; Clark v. Clark, 178 U. S. 186, (4) Under the laws of Missouri plaintiff is entitled to dower in the lands in this State, and her right thereto is not affected by the statutes of the District of Columbia. Jennings v. Jennings, 21 Ohio St. 56; Apperson v. Bolton, 29 Ark. 418; Rannels v. Rowe, 166 Fed. 425; Roessle v. Roessle, 142 N. Y. Supp. 984; Stagg v. Atkinson, 144 Mass. 564; Clark v. Clark, 178 U. S. 186; Compiler y. Compher, 25 Pa. St. 3. (5) Secs. 360 and 361, R, S.' 1909, should be held to apply only to domestic wills. Any other construction would be an injustice to the widow to whom, devise was made by a foreign will, because probate of the will in this State could not be compelled and therefore the widow would not be given any opportunity to declare her election under section 361. Jennings v. Jennings, 21 Ohio St. 56; R. S. 1909, sees. 360, 361, 567, 568 and 535.

      James JR. Catón and Kelsey & Cameron for respondents.
    (1) Failure to dissent from will within statutory time amounts to an election to take under the will. Stephens v. Gibbs, 14 Fla. 331; Wilson v. Fridenberg, 21 Fla. 386; Archibald v. Long, 144 Ind. 251; Hastings v. Clifford, 32 Me. 132; Collins v. Carman, 5 Md. 508; Pratt v. Felton, 58 Mass. 174; Brett v. Matney, 60 Mo. 444; Register v. Henssey, 70 Mo. 189; Daugherty v. Barnes, 64 Mo. 159; Waterbery v. Netherlands, 53 Tenn. 512; Noel v. Garnett, 4 Cal. 92; Blunt v. Gee, 5-Cal. 481. Appellant having failed to file her renuciation of-the will within the statutory time in the District of Columbia has elected to take under the will. (2) “The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform to all its provisions. He cannot accept a benefit given by the testamentary instrument and evade its burdens. He must either conform to the will or wholly reject and repudiate it.” 2 Underhill on Law of Wills, sec. 726, p. 10Ó01; 2 Story, Equity Jurisprudence, sec. 1075; Ball v. Ball, 165 Mo. 312; Graham v. Rosenburgh, 47 Mo. 111. (3) She cannot claim under the will in one State and against it in another. Mary E. Wilber, etc., 52 Wis. 295; Herbert v. Wren, 7 Cranch, 378; In re Bloss Estate, 114 Mich. 204; 11 Am. & Eng. Ency. Law (2 Ed.), p. 113-; Apperson v. Bolton, 29 Ark. 429; Washburn v. Van Steenwyk, 32 Minn. 336; Wilson v. Cox, 49 Miss. 538; Garland v. Rowan, 2 Smed. & M. (Miss.) 636; Slaughter v. Garland,- 40 Miss. 177; Staig'g v. Atkinson, 114 Mass. 564. (4) When the widow has elected to take under the will, she is estopped to claim dower under the law. Washburn v. Van Steenwyk, 32 Minn. 336; Cooke v. Fidelity Co., 104 Ky. 473; Crawford v. Bloss Estate, 114 Mich.-204.
   RAILET, C.

On March 20, 1912, plaintiff filed in the circuit court’ of Jasper county her petition containing. two counts. The second count was thereafter dismissed. Personal service was had on defendant Conqueror Trust Company, as administrator with the will annexed of the estate of Charles E. Wood, deceased, and service was obtained on all the other defendants by publication, in due form and under proper order of the court.

We have adopted appellant’s statement of the case, which reads as follows:

“The petition alleges that plaintiff is the owner in fee of an undivided one-fourth of certain real estate therein described, situated in Jasper county, Missouri,' and that defendants claim some title, estate or interest therein, adverse to the estate and title of plaintiff, and asks the court to try, ascertain and adjudge the title and interest of plaintiff and defendants, respectively, therein.

“At the time of his death, February 17, 1908, Charles E. Wood was the owner in fee of an undivided one-half of said real estate. He died testate. At the time of making his will, August 27, 1907, and thereafter continuously until his death, he was a resident of and domiciled in the District of Columbia, U. S. A. Plaintiff is his widow and resided with her husband until his death, and has since continued to reside in the District of Columbia.

“The will of Charles E. Wood gives to the widow $35,000 in cash, and also to his trustee $200,000 to be by it invested and the income therefrom paid to the widow in equal quarter annual installments during her natural life, and upon her death the principal thereof to revert to his estate. There was also given to the widow absolutely their residence property in Washington, I). C., and all the household furniture, goods and chattels therein contained. There was also devised to the trustee named in the will two parcels of real" estate in Lebanon, Ohio, in trust for the use and benefit of the widow for her natural life, she to receive the rents, issues and profits thereof, with power in her to dispose of the real estate by will. These are the only provisions for the widow made in and by the will. The will then' bequeaths to relatives, friends and former employees various sums of money, aggregating approximately $320,000. The residue of testator’s estate is then given to the defendant, American Security & Trust Company, in trust for the use and benefit of the J. Gr. Kellogg Sanitarium, of Battle Creek, Michigan, the same to be used by the trustee, under the direction of the beneficiary, in the erection and maintenance of a sanitarium at or near Atlantic City, New Jersey. The trustee and beneficiaries under the will are made defendants herein.

“On May 28, 1908, this will was duly probated in the District of Columbia, and administration then and there duly granted on the estate of deceased. A duly authenticated copy of said will and of the original probate thereof was duly filed, recorded and probated in the probate court of Jasper county, Missouri, on March 15, 1911, and the same, together with probate thereof, was on March 18, 1911, recorded in the recorder’s office in said Jasper county.

“Said Charles E. Wood died without issue or the descendants of issue surviving him capable of inheriting. Defendant, Conqueror Trust Company, was appointed administrator with the will annexed by the probate court of said Jasper county, and thereafter on July 22, 1911, served upon the-plaintiff notice that the real estate above mentioned was included in its inventory filed in the matter of the estate of said deceased, and of the provisions of sections 345, 351, 352, 353, 355, 360 and 361 of the Revised Statutes of Missouri for 1909. On September 9, 1911, the plaintiff filed in the probate court of said Jasper county her certificate of election to take under section 351 of said Revised Statutes, her dower in said real estate absolutely, subject to the payment of the debts of deceased, and declared that she would not accept the provisions made for her in said will in lieu of her dower interest in said real estate under the provisions of said section. Said certificate of election appears in the printed record, and was duly recorded in the office of the recorder of deeds, in said Jasper county, September 9, 1911.

“At all times from and after the date of the execution of said will, the statute or code law of the District of Columbia relating to wills and the interpretation thereof, the widow’s dower rights and election or renunciation rights relating thereto, were embodied in the sections appearing in the printed record, and were substantially as follows:

“Every devise of land or any estate therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will.

“A widow shall be barred of her right of dower in the land by any such devise or bequest, unless within six months after administration granted on her husband’s estate she file a written renunciation. By renouncing all claim to a bequest of personal property made her by the will of her husband she shall be entitled to one-third part of his personal estate which shall remain after payment of his debts.

“If the will devise and bequeath a part of both real and personal estate to the wife, she shall renounce the whole or be otherwise barred of her right to both real and personal estate.

If the will devise only a part of the real estate, or bequeath only a part of the personal estate, the devise or bequest shall bar her of only the real or personal estate, as the case may require; provided, if the devise of both or either be expressly in lieu of her legal share of one or both, she shall accordingly be barred unless she renounce as aforesaid.

“Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received and holds and enjoys all the provisions of said will in her behalf, to-wit, the homestead in Washington with all furniture, etc., $35,000 in cash, and the income from the trust fund of $200,000 and from the Lebanon, Ohio, real estate.

“As between the plaintiff and all defendants who appeared in answer the facts are admitted, and as against the defendants not answering, full proof was made. The only question is whether, under the undisputed facts, plaintiff is the owner of an undivided one-fourth interest in the real estate, being one-half of the interest owned by her husband at the time of his death, subject to the payment of his debts, or whether the provisions of the will in her behalf under the conditions stated, deprive her of her right of dower in Missouri, and require her to elect in what form she will take her dower, under our statutes.”

The real purpose of this action is to recover dower in the real estate located at Joplin, Missouri, described in the petition. On August 27, 1907, plaintiff’s husband, Charles E. Wood, while a resident of the District of Columbia, made a will, in which he gave to plaintiff $35,000 in cash, and also to his. trustee $200,-000 to be by it invested and the income paid during her life. There- was also given to plaintiff absolutely their residence property, located in Washington, D. C., with all the household furniture, goods and chattels therein contained. There was also devised to the American Security & Trust Company, trustee named in said will, two parcels of real estate in Lebanon,' Ohio, in trust for the use and benefit of plaintiff, for her natural life, she to receive the rents, issues and profits thereof, with power in hear to dispose of said property by will.

The foregoing are the only provisions made for plaintiff in said will. Testator died, while a resident of Washington, D. C., on February 17, 1908, without issue, or the descendants of issue surviving him capable of inheriting. No real or personal property, in this State, was given to plaintiff, by said will.

She filed her election on September 9, 1911, in the probate court of Jasper county, Missouri, electing to take one-half of the real estate of her said, husband in this State, under section 351, Eevised Statutes 1909. Said written election also contains the following:

“And I, the said widow, do hereby further declare, under section 361 of said statutes, that I will not accept the provisions made for me in the said will of my late husband in lieu of my right of dower herein claimed under the provisions of said section 351 of said statutes.”

On May 8,1908, said will was duly probated in the District of Columbia, and administration duly granted there on the estate of deceased. On March 15', 1911, a duly authenticated copy of said will and of the original probate thereof, were duly filed, recorded and probated in the probate court of Jasper county, Missouri, and on March 18,1911, was recorded in the recorder’s office of said county.

Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received, holds and enjoys all the provisions of said will in her behalf, to-wit, the homestead in Washington with all furniture, etc., $35,000 in cash, and the income from the trust fund of $200,000 and from the Lebanon, Ohio, real estate.

It is contended by plaintiff that she can hold that which was given her under the will in the District of Columbia and in the State of Ohio, repudiate the will in Missouri, and hold as her dower one-fourth of the real estate in Missouri, under section 351, Eevised Statutes 1909, subject to the payment of decedent’s debts.

On the other hand, defendants contend that as plaintiff received the full benefit of the property mentioned in the will, intended for her, in 1908, and has continued in the enjoyment of same since said date, she is now estopped from claiming an interest in the Missouri land described in the petition.

Sections 350 and 351. Revised Statutes 1909. read as follows:

Section 350: “When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging- to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”

Section 351: “"When the ' husband shall die without any child or other-descendants in being, capable of inheriting, his widow shall be entitled : . . . second, to one-half .the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.”

On June 1, 1915, Woodson, J., of Division One, handed down an opinion in the case of C. Purdy Lindsley, Appellant, v. Mabel Patterson et al., Respondents, in case numbered 17,283, brought here by appeal from the St. Louis Circuit Court, in which he has very clearly and forcefully sustained the contention of respondents in this case.

In the above case, it appears that Mrs. Lindsley died July 19, 1908, testate in the State of Connecticut, where she died and the plaintiff then lived. The devisees mentioned in said will were deceased’s brothers and sisters and their children, her husband, the plaintiff, and Mabel Patterson, an alleged adopted daughter. The will mentioned in the above case was executed at' New Haven, Connecticut. Plaintiff was appointed one of the executors in his wife’s will supra, qualified as such under the laws of Connecticut, and Fred G. Ziebig, the other executor, qualified under the laws of this State. The will was probated in Connecticut, and a copy of same in due form was filed in the office of the probate court of St. Louis, Missouri. Plaintiff was one of the principal beneficiaries under Ms wife’s will. The Connecticut law on tins subject reads as follows: Section 391, Revised Statutes of Connecticut, 1902:■ “On the death of a husband or wife, married on or after the twentieth of April, 1877, the survivor, except in cases mentioned in the proviso to this section, ■ shall be entitled to the use, for life, of one-tMrd in value of all the property, real and personal, legally or equitably owned by the other at the time of Ms or her death, after the payment of all debts and charges against the estate; such third to be set out by distributors appointed by the court of probate, in any property, real or personal or both, according to the judgment of such distributors. The right to such third shall not be defeated by any disposition of the property, by will, to other parties; but where there is. no will, the survivor shall take such third absolutely, and if there are no children of the decedent or representatives of cMldren, the survivor shall take all of the estate of the decedent absolutely to the extent of two thousand dollars and one-half absolutely of the remainder of said estate. Where the husband has, by will, devised or bequeathed a portion of Ms property to his surviving wife, or where the wife, by will, has devised or bequeathed a portion of her property to her surviving husband, such provision shall be taken to be in lieu of the share herein provided for, unless •the contrary shall be expressly stated in the will, or shall clearly appear therein; but in any such case the party shall have his or her election whether to accept •the provision of such will or take such statutory share, and such election shall be made in writing signed by the party entitled to make the same, and lodged with the court of probate, before which such estate is in settlement, within two months after the expiration of the time limited for the exhibition of claims against said estate; and if not so made, such person shall be taken to have accepted the provisions of the will, and shall be debarred of said statutory share.”

Plaintiff accepted the provisions of the will, in respect to the property situate in Connecticut, and administered the estate there located according to the laws thereof. He accepted and continued to enjoy the bequests given to him by the will,- and disbursed the bequests which were given to the other devisees by the will. But when it came to the Missouri real estate left by his wife, he formally renounced the will and elected to take one-half of his wife’s real estate, in Missouri, absolutely in fee, as provided by section 350, heretofore set out. His renunciation was filed here in time. After reviewing the facts and law of the case fully, Judge Woodson concluded his opinion on this subject, in which all the judges of this division concurred, as follows:

“We are, therefore, of the opinion that the plaintiff having accepted the bequests given to him by the' will, as regards the Connecticut property, will not be allowed to repudiate it in this State and elect to take one-half of the estate as his absolute property under section 350, Revised Statutes 1909.”

The construction placed upon section 351, Revised Statutes 190-9, in the above case is equally as applicable to section 350 of said article. Unless there- is some provision in the District of Columbia law which takes it out of the rule announced in the foregoing case, we have no disposition to disturb the conclusion reached in the latter.

Sections 1172, 1173 and 1176 of the District of Columbia statute relating to this subject read as follows:

“Sec. 1172. Every devise of land or of any estate therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will.

‘ ‘ Sec. 1173. A widow shall be barred of her right of dower in land or share in the personal estate by any such devise or bequest, unless within six months after administration may be granted on her husband’s estate she shall file in the probate court a written renunciation to the following effect,” etc.

“Sec. 1176. If, in fact, nothing shall pass by such devise, she shall not be thereby barred, whether she shall or shall not renounce as aforesaid, it being the intent hereof that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered a purchaser with a fair consideration.”

These sections are plain, unambiguous, and clearly bring the case within the rule laid down in the Lindsley case, supra.

II. Appellant contends that her rights in respect to the Joplin real estate should be determined under the Missouri statutes, without any reference to the laws of the District of Columbia. It is then . insisted m her behalf that as she renounced the will in this State, as provided in section 360, Eevised Statutes 1909 of Missouri, she is entitled to take the undivided one-half of her husband’s interest in the Joplin real estate, absolutely, subject to the payment of her husband’s debts.

Section 360, Eevised Statutes 1909, and section 1172 of the District of Columbia statute, placed in juxtaposition, read as follows:

Section 360: “If any testator shall, by will, pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of her husband whereof he died seized, or in which he had an interest at the time of his death, unless the testator, by his will, otherwise declared.”

Section 1172 (D. C.): “Every devise of land or of any interest therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will. ’ ’

The will in controversy contains no language tending to show that the bequests to plaintiff in the above will were not intended to be in lieu of dower. Section 1173 of the District of Columbia statute required plaintiff to file her written renunciation of said will in the probate court of said district, within six months after the administration was granted on her husband’s estate. It is conceded that no renunciation of the will was ever filed in the District of Columbia. It stands conceded therefore as a matter of law, that the testator, Charles E. Wood, in the execution of his will, intended that the real and personal property given plaintiff by said instrument should be in lieu of dower in all of his real estate situate in this State.

Section 583, Revised Statutes of Missouri of 1909, provides that:

“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in ¿11 matters brought before them.”

Appellant, having accepted and since enjoyed the property given to her by the will — without having 'filed in the District of Columbia any renunciation of the provisions of said will — has no standing in court, when her rights are considered under the laws of said District.

III. Plaintiff, having failed to file in the District of Columbia a written renunciation of the provisions of the will in her behalf, could not hold on to the money and other property received by her under the ‘will, and repudiate that portion of the will covering the Missouri land, by simply filing in the probate court of Jasper county, Missouri, her written declaration that she claimed dower in the Missouri land under section 351, Revised Statutes 1909.

It is a fundamental principle of law that one who accepts a beneficial interest under a will thereby adopts the whole will, and renounces every right or claim that is inconsistent with the will. This is a principle of universal application, and it extends so far that, when a testator in his will disposes of property which belongs to a third party, and at the same time makes provision for that third party in his will, the party whose property is so wrongfully disposed of cannot accept the provision made for her in the will, without allowing her property to be disposed of as the wall provides. [Lindsley v. Patterson (not to be reported); Hines v. Hines, 243 Mo. l. c. 497; Tower v. Improvement Co., 192 Mo. l. c. 393-4; Stone v. Cook, 179 Mo. l. c. 540 et seq.; Fox v. Windes, 127 Mo. l. c. 511 and following; Schorr v. Etling, 124 Mo. l. c. 47-8; Pemberton v. Pemberton, 29 Mo. l. c. 414; Beavers v. Bank, 177 Mo. App. l. c. 105-6; Cobb v. Macfarland, 87 Neb. l. c. 411; Utermehle v. Norment, 197 U. S. l. c. 57, and cases cited; Knut’s Guardian v. Knut, 162 Ky. 398; Brossenne v. Schmitt, 91 Ky. 465; Bains v. Bank, 136 Ky. l. c. 335; DeVitto v. Harvey, 262 Ill. l. c. 71, and cases cited; Fry v. Morrison, 159 Ill. l. c. 252; Knox v. Laird, 92 Ga. l. c. 129; Jennings v. Jennings, 21 Ohio St. l. c. 79; Beetson v. Stoops, 186 N. Y. 456; Lee v. Tower, 124 N. Y. 370; Isler v. Isler, Exr., 88 N. C. 581; Fisher v. Boyce, 81 Md. 46; Matthews v. Thompson, 186 Mass. l. c. 24; Watson v. Watson, 128 Mass. l. c. 154-5, and cases cited; Cunningham’s Estate, 137 Pa. St. l. c. 627-8; Re Wells’ Est. v. C. Church, 63 Vt. l. c. 119-20; Wiley v. Ball, 72 W. Va. l. c. 687; Tolley v. Poteet, 62 W. Va. l. c. 245; Apperson, Exr., v. Bolton, 29 Ark. l. c. 429-30; Asche v. Asche, 113 N. Y. 232, 235; Matter of Gorden, 172 N. Y. 25; Washburn v. Van Steenwyk, 32 Minn. 336; Wilson v. Cox, 49 Miss. l. c. 544; Jones v. Gerock, 59 N. C. 190; In re Bloss’s Estate, 114 Mich. 204; Rutherford v. Mayo, 76 Va. 117.] Many other similar cases can be found in almost every State of the Union.

The District of Columbia statute and our own law upon the same subject are substantially alike in providing that where real estate is devised by will to the wife it shall be construed to be in lieu of dower. If her rights be determined under either the law of Missouri or that of the District of Columbia, it required her to renounce the will as a whole, if she saw fit to take that which the statute gives, in lieu of the provisions contained in the will. Plaintiff, having accepted and still holding the money and property given to her by the will, is not entitled to any portion of the real estate described in the petition.

IY. The will under consideration shows on its face that testator made ample provision for his wife, and provided that her interests in his property were to be fully protected, and considered paramount to those of all others. He made various bequests to his friends and relatives. He declared in the will that it was his intention to have it operate upon all property, real, personal and mixed, of which he might be seized and possessed at the date of his death, as well as that which he owned at the time of executing said will. He authorized and em-, powered Ms executor, in its discretion, to sell any part or all of Ms real or personal property, at either pubic or private sale, as it might deem best. He recited that the power and authority to sell included all property, real, personal or mixed, of wMch he might die seized or possessed, except that willed to his wife and other legatees. He then recites in the will that: “I give and bequeath to my trustee hereinafter named, the rest and residue of my estate, after the payment in full of all legacies hereinbefore provided for.”

He thereupon named the American Security & Trust Company, a business corporation of Washington, D. C., as sole executor of said will and trustee thereunder, with full power to carry out the provisions of the several trusts set forth and declared, authorizing and empowering said trustee, in its discretion, to sell any and all of Ms real estate, except that granted, and devised specifically, to convey the same to the purchaser or purchasers thereof, and to make, execute and deliver all deeds, conveyances and transfers of the same, without the intervention or order of any court.

The will provides that after the legacies are taken care of, the balance of his estate shall pass to said trustee for the purpose of erecting and maintaining a sanitarium at or near Atlantic City, New Jersey. Subject to the payment of the specific legacies, the Missouri land in controversy here was conveyed to said • trustee, and authority given it to sell said real estate and use the proceeds thereof in the erection and maintenance of said sanitarium.

The plaintiff, therefore, occupies the position of claiming and having received, $35,000 in cash, the income from the trust fund of $200,000, the homestead in Washington, D. C., and the income from the real estate at Lebanon, OMo, and is now seeking to appropriate one-half of her husband’s interest in the Missouri land, which he conveyed to said trustee by the terms of the will for the purpose of building and maintaining. said sanitarium. She is attempting to hold this interest through a written renunciation and repudiation of the will so far as the Missouri real estate is concerned, but still claiming under the will as to the other property conveyed to her by said instrument. Under the authorities heretofore cited, she cannot be permitted to occupy this inconsistent position. She had already made her election to claim under the will, in contemplation of law, before she undertook to repudiate a part of said instrument, by electing to take a one-fourth interest in the Jasper county land, under section 351, Revised Statutes 1909.

As held by Judge Woodson in the Lindsley-Patterson case supra, if she desired to take a dower interest in her husband’s Missouri lands, she should have filed a timely renunciation of the will as a whole, in the probate court of the District of Columbia. She failed to renounce the will as a whole; is still claiming valuable property rights thereunder, and hence is not entitled to recover any part of the real estate in controversy.

V. Upon a full consideration of the whole case, we are of the opinion that appellant is not entitled to dower in the real estate described in the petition.

The judgment below is accordingly affirmed. Brown, C., concurs.

PER CURIAM

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

All the judges concur.


author: BROWN, C. PER CURIAM.

text:
    GOTTLIEB EYERMANN et al., Appellants, v. CITY OF ST. LOUIS.
    Division One,
    June 30, 1915.
    1. STREET IMPROVEMENT: Judicial Knowledge: Payment by Special Taxation. Courts cannot pretend to be ignorant of matters of public knowledge founded alike in common sense and common experience. They know that the fact that the contractor for street construction must receive payment in special tax bills to be collected by him at his own expense and risk, is an important 'element in the cost of such public improvements; and they cannot assume that the Legislature would permit this burden upon the urban-property owner to be extended to the cash expenditure by the city for the maintenance of its streets, except upon ;the clear expression of its intention to do so.
    2. -: Contract for Independent Repairs: Invalid. The city of St. Louis has no power under its charter to enter into a contract for the construction of a street pavement whereby it undertakes to bind itself to employ the same contractor to make all repairs which may, during a term of years succeeding its completion, become necessary from causes having no connection with the sufficiency, character or durability of the completed work, and to pay therefor the same price per unit which, by the terms of the contract, was to be paid in special tax bills for the construction.
    3. -: -: Laying Sewer: Damages for Breach. The charter of the city of St. Louis authorizes the inclusion in an ordinance for the construction of a street pavement “a provision that the work and material must be guaranteed and kept in repair by the contractor doing the work for a term of years to be specified in the ordinance;” and in pursuance thereto, and in order that a sound and durable pavement may be obtained, the city may take from the contractor a .guaranty of the perfection of the work and the materials, and to keep the agreed work in repair, free of cost, for a reasonable term of years; but it has no power to extend its charter authority to make contracts for future maintenance, to include independent work, and such a contract would be void. For instance, a contract for the construction of a street pavement of paving blocks, which obligates the contractor to guarantee the original work for ten years, and to make repairs “made necessary by the construction of sewers” or “from any other disturbance of the pave-265M0.34 ment,” the cost to be paid by the city, did not prohibit the city from taking up the paving for the purpose of putting a sewer in the street and in refusing to permit the contractor of the original paving to repair the pavement, but in these respects is void, and the city is not liable for damages for refusing to permit said contractor to make the repairs.
    Appeal from St. Louis City Circuit Court. — Eon. Eugo Muench, Judge.
    Affirmed.

      Bchnurmacher & Rassieur and Blodgett & Rector for appellants.
    (1) The reconstruction work done" by the defendant is within the contemplation of the ordinances and contracts in evidence. (2) The repair clause of the contract is valid. Lamar W. & E. L. Co. v. Lamar, 128 Mo. 223; Walla Walla Case, 172 U. S. 1; Saleno v. Neosho, 127 Mo. 627; Ullman v. Paving Co., 137 Mo. 543; Bank v. Woesten, 147 Mo. 467; Paving Co. v. Hezel, 155 Mo. 391; Paving Co. v. French, 158 Mo. 534; Asphalt Co. v. Munn, 185 Mo. 552; Allen v. Lab-sap, 188 Mo. 692; Bank v. Woesten, 176 Mo. 49.

      Williaon E. Baird and Truman P. Young for respondent.
    (1) The city of St. Louis, under its former charter, had no power to insert in a contract for the paving of a street that the contractor should have the right for ten years to make all repairs, at the expense of the city, which might become necessary by reason of the cutting of a street for the purpose of laying conduits, wires, etc. The city was given the right by sections 14 and 15 of article 6 to insert in such a contract a clause of guaranty. Such a clause, however, should cover wear and tear only and should provide for maintenance by the contractor at his own expense. That such are the limits of a guaranty clause is shown by the following cases: Yerdin v. St. Louis, 131 Mo. 26; Ullman v. Paving Co., 137 Mo. 543; Bank v. Woesten, 147 Mo. 477, 176 Mo. 59; Paving Oo. v. Hezel, 155 Mo. 391; Paving Co. v. French, 158 Mo. 556; Paving Co. v. Munn, 185 Mo. 563; Allen v. Labsap, 188 Mo. 703; Quarry & Const. Co. v. Frost, 90 Mo. App. 677; Asphalt Co. v. St. Louis, 188 Mo. 576; Const. Co. v. Coal Co., 205 Mo. 75. (2) The guaranty clause of the contracts offered in evidence does not apply to work done by the city itself upon the street in question, but applies only to cuts made in the street by private parties acting under permits. This is obvious from an inspection of the contract. The words of a proviso will prevail over any previous clause in the contract. As. between inconsistent provisions in a contract, the one appearing last will prevail, and specific provisions will prevail over general provisions. McGrew v. Railroad, 230 Mo. 524. (3) If the contract is to be construed as giving the contractor the right to make repairs where the pavement has been disturbed by the city, that right would exist only where the street was disturbed for the purpose of the original construction of a sewer. It would not apply to a disturbance of the street for the purpose of repairing a sewer. This is obvious from an examination of the language of the contract. (4) If the contractor had the right under the contracts in evidence to repair the street, he would have been required to do so with new material, and not with old material already upon the street. The old material belonged to the city. It is immaterial that it was paid for by special taxation. Special assessments are levied under the taxing power of the State. Meier v. St. Louis, 180 Mo. 408; Garrett v. St. Louis, 25 Mo. 505.
   BROWN, C.

We adopt substantially the statement of appellants as follows:

This is an action for damages for breach of contract.

The averments of the petition, essential to an understanding of the case, are that plaintiffs composed a partnership engaged in business as contractors; that in 1905 plaintiffs entered into two contracts with defendant for the reconstruction with paving blocks of certain portions of Branch street between the wharf and Ninth street, and that plaintiffs did the work as required under these contracts. Under these contracts plaintiffs not only guaranteed their original work for a period of ten years from its completion, but in addition thereto- were required, on demand of the city, and they had the right, with certain exceptions only, to do the repair work becoming necessary in the event the paving as laid by them should become disturbed during the period of the contract.

The pertinent portion of the contracts contains a guaranty to maintain the street in good order, for the given term, guaranteeing’ against imperfection in the work or material. If there should be any deteriorations during or at the end of the term, the contractor shall, at the direction of the street commissioner, repair or wholly reconstruct the street.' The contract then provides:

■ “And it is further agreed that whenever any repairs of the street are made necessary from the construction of sewers, the laying of pipes or telegraph wires, or from any other disturbance of the pavement by parties acting under permits issued by the city, the contractor shall, upon notification of the street commissioner, in all cases, except where the party causing the disturbance is required to restore the street, at once make all necessary repairs in conformity with the specifications under which the pavement was constructed. The cost of all such repairs when done by the contractor, exclusive of trenching and back filling, which shall be done by the parties which hold the permits, and in the same manner as now required by existing ordinances, shall be paid for at the full contract price for a superficial square of new pavement, as fixed in the contract let under provisions of Ordinance Number . . ., and the measurement thereof, together with the amount due the contractor therefor, shall be certified by the street commissioner and shall be paid out of the fund ‘Street Repairs — Reconstructed Streets,’ and the amount shall be certified by the street commissioner to the auditor, who shall reimburse by transfer the aforesaid fund from the funds of the proper department, if the repairs were made necessary by the construction of any public improvement; and out of the funds to be deposited by persons taking permits for opening the street and before such permits are granted, if the repairs were made necessary by work done thereunder. And it is agreed that the contractor shall have the right to make all repairs which become necessary by the construction of any public improvement or work done by private parties under permits issued and granted by the city upon the basis of compensation aforesaid; provided, however, that it is furthermore covenanted and agreed that this contract shall not be affected, impaired or avoided, and that no claim for compensation • or damage shall be presented by or allowed to the contractor for or on account of a disturbance or the tearing up of the street by the city of St. Louis or by any contractor employed by it, or by the grantee of any franchise now or hereafter given or granted by the city of St. Louis for laying conduits, street railway tracks, gas pipes or wires of any character, upon, in or under said street.”

The work was to be paid for by the issue of special tax bills as provided by the charter.

The petition further alleges that in 1908 defendant took up the paving in Branch street for the purpose of putting a sewer in said street and for the doing of other public improvements therein, and that defendant refused and failed, to permit plaintiffs to repair the street, which they were able and willing and offered to do, but that defendant, throug’h other parties, or throug'h its own servants and employees undertook to-do said work and deprived plaintiffs of their right to-do so. The petition further avers that if plaintiffs had been permitted to do said work aforesaid at the contract prices they would have earned $4392.10, for which they prayed judgment.

The defendant’s answer set up the claim that the work done by it was not contemplated by the contracts-referred to, but was made necessary by a cave-in of the Rocky Branch sewer, located under Branch street.

A further contention of the defendant was that the-clause of the contracts sued upon is invalid and of no-effect and contrary to the charter of the city of St.. Louis, in violation of article 6, sections 14, 15, 25, and 27 of the charter.

Evidence was introduced tending to prove the allegations of plaintiff’s petition, the portions of which,, material here, are that the repairs in question were-rendered necessary by a provision of the city for the enlargement of the sewer under Branch street, and because at certain points the old sewer had caved in, necessitating a reconstruction of that part of the sewer.

Upon submission, the court found in favor of defendant, on the theory, as shown by his memorandum of findings, that the relaying of the pavement was not. contemplated by the terms of the contract covering “repairs made necessary from the construction of sewers.”

Other facts will be referred to as necessary.

The first and most important question in this record is whether the city of St. Louis might, under its charter, make the covenant sued on in its contract for the construction of a pavement, whereby it undertakes. to' bind itself to employ the same contractor to make all repairs upon it which maL during ten years succeeding its completion, become necessary from causes having no connection with the sufficiency, character or durability of the completed work, and to pay therefor the same price per unit which, by the terms of the contract, was to be paid in special tax bills for the construction.

We cannot pretend to be judicially ignorant of matters of public knowledge founded alike in common sense and common experience. We know that the fact that the contractor for street construction must receive payment in special tax bills to be collected by him at his own expense and risk, is an important element in the cost of such work. Methods for the avoidance of this burden upon the urban-property owner have been the subject of much public discussion in the field of municipal reform, and we cannot assume that the Legislature would permit this burden to be extended to the cash expenditure of the city for the maintenance of its streets, except upon the clear expression of its intention to do so. The question is, does the charter then in force give the city that power?

All the charter provisions to which we shall have occasion to refer are included in article 6 of that instrument. Section 14 provides for the recommendation of the Board of Public Improvements, and the preparation and passage of all ordinances for the construction and reconstruction of streets, and expressly authorizes the inclusion in such ordinances of a provision that the work and material must be guaranteed and kept in repair by the contractor for a term of years to be specified therein. Section 18 provides that the cost of all such work as is included in the reconstruction of Branch street under this contract shall be paid by special tax bills charged upon the property subject to assessment therefor, to be collected by the contractor, and exempts the city from any liability whatever for or on account of any such work; and also provides that the repairs of streets shall be paid for out of the general revenue of the city.

There was one thing common to both construction and repairs. Section 27 provided as follows:

“The Assembly shall have no power directly to contract for any public work or improvement, or repairs thereof, contemplated by this charter, nor to fix the price or rate therefor; but in all cases, except in case of emergency work or necessary repairs requiring prompt attention, the Board of Public Improvements shall prepare and submit to the Assembly an ordinance, with an estimate of the cost endorsed thereon by the president of the board, authorizing the doing of any proposed work, and under the direction of the ordinance authorizing the same, shall advertise for bids in the papers doing the city printing, three times, the last publication to be at least ten days before the day appointed for the opening of the bids, stating the general nature of the work to be done and the time and place when the bids will be received, and shall let out said work by contract to the lowest responsible bidder. Any other mode of letting out or contracting for work shall be held as illegal and void.”

Had the covenant sued on been a separate contract between the city and the contractor by which the latter undertook, for the term of ten years, to do all work that might, from any cause, become necessary by way of repairs to this same pavement, its validity would not and could not be asserted, for it would fix the rate to be paid without any estimate of the Board of Public Improvements, or the preparation, submission or passage of any ordinance therefor or notice stating the general nature of the work to be done to afford a basis for a bidding. The prohibitive features of this section are clear and peremptory. In requiring such work to be let to the lowest bidder under an ordinance describing and authorizing it and a notice stating its general nature, and in forbidding the city to do it otherwise, it leaves no room for doubt. The exception of emergency work requiring prompt attention only emphasizes its force.

. We do not understand the proposition just stated to be questioned, but the appellant points to the provision of the charter authorizing the guaranty of work and material in contracts for the construction and reconstruction of streets for authority to make this contract with reference to independent repairs. That provision is contained in section 14, and is as follows: “In all cases the board may include in such ordinance a provision that the work and material must be guaranteed and kept in repair by the contractor doing the work for a term of years to be specified in such ordinance.” It is upon this alone that the right of the city to contract for miscellaneous repairs, irrespective of the origin of their necessity, or of their extent or importance, so that they be required within any future period which-the Municipal Assembly may fix by its ordinance, to be paid for in cash at a price to be fixed upon the basis of payment in special tax bills, must stand, if it stands at all. In plainer terms, the Assembly may, when a street is constructed, close it against, all the provisions of the charter intended to secure an honest letting to the lowest bidder under contemporary conditions of work which may become necessary in its maintenance, and make such work the private perquisite of a single contractor at a price fixed to meet conditions that have ceased to exist. The charter authorizes no such absurdity. It authorizes the making of a contract “that the worh and material must be guaranteed and kept in repair by the contractor doing 'the work.” There is no uncertainty about the terms of this authority. It is confined entirely to work done and material used in making good the legitimate guaranty of the construction contract. It places no burden upon the city, while it completely protects it against inferior and defective work and material used in violation of the terms of the contract, and the same protection is extended to the property owner who pays the bill and must pay for the replacement of the work when it is gone. As we said in Bank v. Woesten, 147 Mo. 467, 478, “the obligation required of the contractor to maintain the completed work was intended to secure an improvement that would endure for ten years without restriction.” The city in making the contract acts, to the extent of its charter power, as the agent of the property owner as well as of the general public in securing an enforcible contract for the production of a work that will fulfill all its provisions and justify the confidence of the parties in the durability and value of the improvements.

In adjudicating the provisions of this and similar laws this court has arrived at the just and reasonable 'Construction we now indicate. In Verdin v. St. Louis, 131 Mo. 26, the plaintiff sued in equity to enjoin the issue by the city of a tax bill in favor of the Barber Asphalt Paving Company for work done under contract for the reconstruction of Jefferson avenue with asphalt pavement, including curbing and guttering. It involved the same charter provision which we have before us in this case; The contract provided as a part of the compensation to be paid to the contractor, $1962 for maintenance of the pavement during the term of nine years. Many objections were made to the propriety and validity of the tax bill,, among which was .the assertion that this charge and the provision of the contract under which it was made rendered it void. Upon this question the court said: “By letting to the defendant, the Barber Asphalt Paving Company, the contract for reconstruction, and at the same time, and as part of the same contract, the contract for the maintenance of Jefferson avenue for the period of nine years at the price of $1962, the contractor was enabled to obtain from the property holders, in advance, payment in whole or in part for the maintenance which, under the charter, is required to be paid by the city; and if, after the work of reconstruction is completed, the property holders refuse to pay at once, a special tax bill is immediately issued, which is a lien upon the property for the cost of the work of maintenance, which has not been done and which the contractor may never do.” It also held in the same case that the fact the material specified in the contract was Trinidad Lake asphalt of which the contractor, which was the only bidder, possessed a monopoly through certain concessions of the exclusive' right to take it from the deposit indicated by that name, made the letting colorable and unlawful and that the contract was void on that ground. This contention was also sustained by the concurrence of the majority of the members of the court.

A similar question arose soon afterward in. Asphalt Paving Company v. Ullman, 137 Mo. 543. The suit was upon a special tax bill founded upon a contract for paving in the city of St. Joseph, in which the paving was guaranteed for five years, and the contractor agreed to keep the same in repair during that period, at the end of which it was to be turned over to the city in good order and, condition. It also agreed to keep the pavement in repair for an additional term of five years at a price per square yard of ten cents, to be paid out of the general repair fund of the city. These payments were to be made semi-annually during that time, the first to become due five years and six months after the completion of the pavement, subject to the retention of ten per cent of each semi-annual payment, to be paid upon the completion and acceptance of the maintenance. In holding that this tax bill was not invalidated by this provision the Court in Banc, after having distinguished the case from the Verdin case, supra, which it did not overrule, said through Barclay, J. (l. c. 566): “The ‘guarantee’ of the pavement for five years, as laid hy the plaintiff, involves no extra charge against the adjoining property, further than would he justly payable for a lasting pavement. The term for keeping the agreed work in repair, free of cost, is not longer than the reasonable period such a work should last, if properly done at the outset. It certainly is proper for the city to require of the contractor for such improvements a sound and durable piece of finished work. The agreement to maintain the work free of cost for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.”

After proceeding further to demonstrate that there was nothing in that contract or elsewhere that put any part of the cost of repairing the finished street upon the taxable property, and that the contract did not mean to provide “that the paving company shall keep the entire street in repair for the period of five years,” but only meant to provide that it should ‘ ‘ simply maintain, in good order, for that time, the street as plaintiff agreed it should be made,” the majority opinion proceeded (l. c. 569) in a cautionary way as follows:

“The stipulations in regard to the original construction (and maintenance free of charge for the first term of five years) are readily severable from the agreements in regard to maintenance for the second term of five years. [Water Co. v. Neosho, 136 Mo. 498.] The former stipulations may be valid and enforceable by the contractor, even if the latter are not, for want of proper preliminary municipal action to support them. As to the latter we give no opinion. The validity of those agreements we regard as irrelevant to the issues of this appeal. As the case at bar now stands, the latter agreements form no barrier to the collection of the special taxes in suit, imposed for the first cost of the asphaltum street. [Neenan v. Smith, 60 Mo. 292.] Those agreements are a matter between the city and the contractor, and are not so connected with the stipulations for the work represented by the special tax bills as to impair the validity of the latter. Nothing properly before the court at present discloses that any of the agreements for maintenance of the improved street had a tendency to increase in anywise the special taxes levied on the abutting real property for the original work. ’ ’

Bank v. Woesten, 147 Mo. 467, was a suit to enforce the payment of a special tax bill for reconstructing Grand Avenue pavement in the city of St. Louis, with asphalt. The bid, in accordance with the general ordinance in force at the time, included a separate sum for maintenance for nine years, to be paid semi-annually out of the city treasury. The maintenance clause in the contract was as follows:

“The said, The Barber Asphalt Paving Company, party of the first part, expressly guarantees to maintain at grade and surface in good order the aforesaid work of reconstruction for the full period of nine years, commencing one year after the said work of reconstruction is completed and accepted, and binds himself, his heirs and assigns to make all repairs which may from any imperfection in said work or materials become necessary within that time-, and the party of the first part shall, whenever notified by the street commissioner that repairs are required, at once make such repairs at his own expense.”

In holding the tax bill for the cost of reconstruction valid the court said:

“Municipal officers who in contracting for such public work, should neglect to take from a contractor some kind of guaranty of the perfection of the work and materials, would be derelict in their duty and unfitted for the trust with which they had been invested. The kind of guaranty should be left to their discretion and business sense. "We think no wiser or more adequate provision for securing perfection in the completed work could be devised than that of requiring the contractor to maintain it for a reasonable time, at such cost as would compensate for the repairs necessary to preserve good work and good material from becoming imperfect from natural and unavoidable causes. ’ ’

This seems to have been practically the last word of this court upon the question, and marks the boundary, on lines most liberal to the authority of the city, of its charter power to make contracts for the future maintenance of its streets for the purpose of securing good work and the use of good material in their construction. It has been followed in Barber Asphalt Paving Company v. Hezel, 155 Mo. 391; Barber A. P. Co. v. French, 158 Mo. 534; Barber A. P. Co. v. Munn, 185 Mo. 552; Bank v. Woesten, 176 Mo. 49; Allen v. Labsap, 188 Mo. 692; and we find no case in which these lines have been so extended as to include inde-' pendent work.

This is the first case that has come to this court, in which an attempt has been made to hold the city to the performance of a contract of this character. In the cases cited it has been urged that these charter provisions should receive an interpretation favoring the exercise by the municipal legislatures of the broadest powers in the performance of its duties with respect to the construction and maintenance of its streets, and extreme restiveness has sometimes been indicated under the limitations which the people have seen fit to impose through legislative enactment or constitutional charter; but the defendant city is now here strenously asking the protection of its charter against its own attempted action, with a case which strongly illustrates the wisdom of these limitations. We have no choice but’to extend it, and must hold the contract is void-with respect to the provision invoked in this suit, as being against the plain provisions of the charter. This makes it unnecessary to examine any other question raised by the appellant, all of which are subordinate to the one we have already decided.

The judgment of the circuit court is affirmed. Railey, G., concurs.

PER CURIAM.

Ybe foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: GRAVES, J

text:
    J. J. DAVENPORT, Appellant, v. JAMES M. SILVEY.
    Division One,
    June 30, 1915.
    1. BILL OF EXCEPTIONS: Specific Objection: Preservation: Shortened Form. A recital in the bill of exceptions that “the court permitted the defendant, over the objection of the plaintiff, and his exception thereto, to present evidence 'to the jury tending to prove that the character and reputation of the plaintiff for turbulence and violence were bad, when no evidence had previously been offered upon the part of the plaintiff to prove that they were good,” shows a specific objection to the introduction of the evidence, and that specific objection was that the evidence was incompetent for the reason plaintiff had not' previously offered evidence to prove his reputation was good. In actions at law a shortened bill of exceptions covering the precise question intended for review, is not only allowable, but tó be commended.
    2. EVIDENCE: Erroneous: Cured by Testimony in Rebuttal. If the evidence offered by defendant was incompetent, the error in admitting it is not cured by the fact that plaintiff afterwards rebutted it by the testimony of his own witnesses.
    3. -: Assault and Battery: Self-Defense. In an action for damages for assault and battery, self-defense is a recognized defense; and a plea of self-defense necessarily implies an impending assault by the opposite party.
    4. -: --: -: Reputation. A defendant, who has pleaded self-defense to plaintiff’s action for damages for assault and battery, is entitled to introduce evidence to show plaintiff’s reputation for turbulence and violence was bad, whether or not evidence has previously been introduced by plaintiff to show it was good. The character of either party can be inquired into in a civil suit where it is put in issue by the nature of the proceeding itself; and where self-defense is interposed as a defense to a civil action for assault and battery, and issue is taken thereto by reply, the turbulent character of plaintiff is made an issue by the very nature of the case, and the defendant is entitled to introduce evidence tending to show plaintiff’s reputation for turbulence was bad, although plaintiff has introduced, none to show it was good.
    5. APPEAL: Instruction. Alleged error in giving an instruction cannot be considered on appeal, unless the giving of it was assigned as error in the motion for a new trial.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    Affirmed.

      Frank P. Walsh and R. A. Mooneyham for appellant.
    It is the well-settled law of this State, that in actions for damages, growing out of assault and battery, and in civil actions generally, any evidence touching the character of either party to the suit, is clearly inadmissible, and cannot be inquired into, unless it is put in issue by the nature of the proceeding itself or has been first supported by the adversary. Boggs v. Lynch, 22 Mo. 563; Gutzmiller v. Lackman, 23 Mo. 168; Rogers & Gillis v. Troot’s Admr., 51 Mo. 474; Dudley v. McClure, 65 Mo. 241; Vawter v. Hultz, 112 Mo. 634; Stark v. Knapp & Co., 160 Mo. 549; Black v. Epstein, 221 Mo. 304; Lumber Co. v. Hartman, 45 Mo. App. 647; Alkire Gro. Co. v. Tag’art, 78 Mo. App. 166 ; Lyon v. Dose, 81 Mo. App. 72; Gordon v. Miller, 111 Mo. App. 342; Stewart v. Watson, 133 Mo. App. 45; Hatch v. Bayless, 164 Mo. App. 218; Shoffner v. Fink, Admr., 163 Mo. App. 113; State v. Green, 229 Mo. 642.

      O. L. Cravens for respondent.
    (1) In order to show that the evidence was erroneously admitted and to convict the trial court of error. Tinder the issues it devolved on plaintiff to show by his bill of exceptions that he made timely and a proper form of objection thereto, stating the very ground of his objection. A general objection of inadmissibility does not suffice. His objections should have been specific. James v. Kansas City, 85 Mo. App. 20; Fuller v. Robinson, 230 Mo. 22; Stevens v. Insurance Co., 153 Mo. App. 196: Goyle v. Car Co., 177 Mo. 427: Stark v. Knapp, 160 Mo. 529; Russell v. Glasser, 93 Mo. 353; Western v. Flanagan, 120 Mo. 61. And timely: Wills v. Railroad, 133 Mo. App. 625; Wall v. Casualty Co., Ill Mo. App. 504; Hill v. Bailey, 8 Mo. App. 85; Fullerton v. Forclyce, .144 Mo. 519; Casualty Co. v. Kacer,' 169 Mo. 301. (2) The rule in regard to the admissibility of evidence, as to the general reputation of plaintiff for peace and quietude, is not. well .stated by plaintiff. Although it is the general rule that such testimony is not admissible, yet it can be inquired into if the nature of the proceeding under the issues makes plaintiff’s general reputation for peace and quietude material, and involved in the suit by the defense made. The evidence of plaintiff’s previous general reputation being bad for peace and quietude is admissible as an exception to the general rule. And this would be true, whether plaintiff himself put his own character in issue; the circumstances and the defense make it material. State v. Roach, 64 Mo. App. 413; State v. Hicks, 27 Mo. 588; State v. Keene, 50 Mo. 357; State v. Bryant, 55 Mo. 75; State v. Elkins, 63 Mo. 159 ; State v. Downs, 9.1 Mo. 19 ; State v. Feeley, 194 Mo. 300; State v. Zorn, 202 Mo. 29; In re Imboden’s Estate, 128 Mo. App. 573. (3) Where justification for the punishment inflicted by defendant upon plaintiff, by way of self-defense, is pleaded, it is competent to show the reputation of the opposite party to be quarrelsome or otherwise. Golder v. Lund, 50 Neb. 867; Beckman v. Souther, 68 N. H. 381; Silliman v. Sarnpson, 59 N. Y. S. 923; Knight v. Smythe, 57 Vt. 529-; Harrison v. Harrison, 43 Vt. 417; Keep v. Quallmann, 68 "Wls. 451; Spain v. Rakestraw, 79 Kan. 758; Mc-Quiggan v. Ladd, 79 Vt. 90; Lowe v. Ring, 123 Wis. 107; State v. Green, 229 Mo. 642.
   GRAVES, J

Action for damages for alleged injuries received from an assault and battery.. Judgment went'for defendant in the lower court, and plaintiff has appealed. The amount sued for gives this court jurisdiction. The trial court struck out much of plaintiff’s petition, and we think rightfully so. Counsel for plaintiff no doubt reached the same conclusion, as the point seems to have been abandoned. The petition left, after having been pruned by the court, reads;

“Comes now the plaintiff and for his first amended-petition, in his cause of action vs. the defendant, James M. Silvey, says on January 6, 1909, he called at the home of the defendant and was by him admitted into his house, and while sitting in a chair in the home of defendant, near Racine, in N'ewton county, Mo., talking with the defendant, the defendant without any provocation wilfully, maliciously and wrongfully assaulted plaintiff with an iron bar, and struck and beat plaintiff on his hand; arm and head and seriously injured plaintiff, in this, to-wit; that his head, arms, limbs, neck, back, breast and spine were wounded, bruised, injured and contused, and that he was made sick, sore and lame thereby; that as result thereof, he has become afflicted with incurable pains in his head, suffers from dizziness and vertigo, has lost his natural rest and sleep; his hearing has become impaired and he has been rendered partially deaf, and he sustained a severe and lasting shock to his entire nervous system; that all of. said injuries are permanent and lasting in their nature,- all to his damage in the sum of $5000 actual damages and $5000 punitive damages, wherefore plaintiff prays judgment vs. defendant for the sum of $5000 actual damages and $5000 punitive damages, and for his costs. ’ ’

' To this petition the defendant thus answered:

“.Defendant, for amended answer to plaintiff’s amended petition, denies each and every allegation therein contained. For further answer, defendant states that on or about the — day of —— plaintiff entered defendant’s dwelling house, against his will and without his consent, and refused to leave upon being ordered so to do by defendant. The plaintiff there with threat of violence, made an assault upon defendant in his home, whereupon defendant struck plaintiff to repel such assault; that defendant in so doing used no more force than appeared to be reasonably necessary to protect himself from the infliction of great bodily harm at the hands’ of plaintiff, and that which was apparently impending and about to fall, and that such stricking was so done, in the necessary defense of himself and the protection of his home, therefore' defendant asks to be discharged, and for his acts in. this behalf incurred.”

Reply was a general denial.

We have an exceedingly abbreviated bill of exceptions in this case. The evidence in the case is disposed of in the bill of exceptions in this fashion:

“The plaintiff to sustain the issues on his part introduced evidence tending to support the allegations of the petition.

“The defendant to sustain the issues on his part introduced evidence tending to support the allegations in his amended answer.

“The court permitted the defendant, over the objection of tlie plaintiff, and his exceptions thereto, to present evidence to the jury tending to prove that the character and reputation of the plaintiff, for turbulence and violence were bad, when- no evidence had previou ’y been offered upon the part of the plaintiff to prove that they were good. ■

“In rebntal, plaintiff offered testimony to- establish his good reputation in that respect. This was all the evidence offered tending to prove upon the part of either party, the character and reputation of plaintiff for turbulence and violence. ’ ’

The bill of exceptions then sets out instructions 1, 2, 3, 4, 5, 6, 7 and 8 as having been given for the defendant over plaintiff’s -objections and exceptions. It then sets out instructions 1, 2, 3 and 4 as having been given by the court of its own motion, but over the objection and exceptions of plaintiff. The bill of exceptions then sets out the usual instruction upon the form of verdict, to which no objection was made or exception saved.

The bill of exceptions then contains this further-recital :

“The foregoing are all the instructions given by the court of its own motion or at the instance of either party, and upon the same the case was argued and submitted to the jury, which on the 12th day of March, 1912, returned a verdict in behalf of the defendant, reading as follows: ‘We the jury find the issues in favor of the defendant.’ ”

The motion for new trial as preserved in the bill of exceptious, recites the following reasons for a new trial:

“1. The verdict is against the law.

“2. The verdict is against the evidence and the weight of the evidence.

“3. The verdict is against the law and the .evidence.

“4. The court erred in admitting improper and incompetent and irrelevant testimony offered on the part of the defendant over the objection of the plaintiff, made at the time.

‘ ‘ 5. The court erred in refusing proper, legal and competent evidence offered on the part of the plaintiff, on the objection of the defendant.

“6. ' The court erred in refusing instructions A, B, C, D, E, F, G, H, I, J, K, L and M as offered and requested by plaintiff. ■

“7. Tbe court erred in giving instructions marked 5, 6, 7, 8, 9, 10, 11, and 13 as requested by defendant.

‘ ‘ 8. Tbe court erred in giving instructions marked 1, 2, 3 and 4 of its own motion.

“9. Tbe court erred, in permitting counsel J. W. Halliburton in bis closing argument to tbe jury to go outside of tbe record and tbe law and evidence of tbe case and discuss matters wholly irrelevant to tbe case.

“10. Tbe verdict is not based upon or supported by tbe evidence nor by the law as given to tbe jury in tbe instructions of tbe court, but is tbe result of bias and prejudice on tbe part of tbe jury.

“11. For other good and sufficient reasons and errors occurring on the trial which are apparent from tbe face of tbe record.”

We bave gone into tbe bill of exceptions fully because of questions raised. In fact we have practically given all of tbe bill of exceptions, except the instructions mentioned and set out therein. These we reserve for tbe opinion upon tbe points urged. This sufficiently states tbe case.

I. Proper results in this case can be best reached by a process of elimination, if such should be done. We should first find what are (if any) tbe real issues before this court upon appeal. To. this end we bave been elaborate in ■ our statement as to tbe record before us. Tbe first contention of tbe plaintiff in bis brief upon appeal is double-barreled, in a measure. As able counsel sav:

“Tbe first point we ask your Honorable Court to consider is that upon, tbe trial of tbe cause, defendant was permitted to introduce, over tbe objections and exceptions of plaintiff, evidence to prove tbe character and reputation of plaintiff, for turbulence and violence was bad, when plaintiff had not previously offered any evidence to prove that it was good, and in granting defendant’s instruction, prayed for by him, number 2 on pages 6 and 15 of Abstract of the Record, imder th& heading of Instructions and Bill of Exceptions.”

To dispose of this contention it is more logical to take the composite assignment in its several parts. To separate the parts we have italicised a portion of the assignment quoted above. The first portion charges error in the admission of evidence, and the second portion (that italicised) error in the giving of an instruction. Under the record the first portion of this assignment of error is one of easy disposition.

This portion charges that the court erred in permitting the defendant “to prove the character and reputation of plaintiff, for turbulence and violence was bad, when plaintiff had not previously offered any evidence to prove that it was good.” The abbreviated bill of exceptions shows that evidence of this character was offered and received. The only thing we find in the bill of exceptions, as to the character of the object* tions, is the paragraph:

“The court permitted the defendant, over the objection of the plaintiff, and his exceptions thereto, to present evidence to the jury tending to prove that-the character and reputation of the plaintiff, for turbulence and violence were bad, when no evidence had previously been offered upon the part of the plaintiff to prove that they were good. ’ ’

It is contended by the respondent that this bill of exceptions does not show any specific objection to have been made to this evidence. Is this contention sustained by the record? We think not. Counsel have attempted to file a bill of exceptions to cover the precise questions intended for review here.

In actions at law this is not only allowable, but is to be commended. It shortens an otherwise voluminous record. But to the point urged. They argue that this bill of exceptions shows no specific objections to the introduction of this evidence. It should be conceded that a general objection would not suffice. To my mind the bill of exceptions, when fairly construed, shows that a specific objection was made to the introduction of this evidence. It is not couched in direct terms, but the bill does say that the evidence was admitted over the objections of the plaintiff, and it does say in the conclusion, that it was so admitted, at a time “when no evidence had previously been offered upon the part of the plaintiff to prove that they were good.” Taking the whole paragraph of the bill of exceptions, we are inclined to the view that it means that such evidence was objected to for the reason that the plaintiff had not previously offered evidence to the effect that his reputation in that regard was good. If such is the meaning of the bill of exceptions upon this point, then the objection to the evidence was specific and not general. We think this construction should be given to the bill of exceptions, and for that reason the contention of defendant is not good.

II. If the competency of this evidence is here for review, and we have held that it was in the preceding paragraph, then we are brought face to face with the single question, “Was this evidence proper at the time and under the circumstances'?” That plaintiff afterward rebutted it is not a sufficient answer. By improper rulings of a court a . party to a suit is often forced to meet issues, which he would not have to meet, had the court ruled right ■jn the first instance. Because he so has to do should not preclude a review of a point properly made as to the erroneous action of the court. We shall therefore consider the competency of this evidence. We must not overlook the pleadings in the consideration of this question. In the answer we have the plea of self-defen.se. In an action for assault and battery1, this -is a-recognized defense. [2 Am; & Eng. Ency. Law (2 Ed.),p! 977, and cases cited.] :

The reply placed in issue this matter of self-defense. The very plea of self-defense contemplates ¿n impending assault by the opposite party. The answer in this case pleads that plaintiff assaulted him, and that he used no more force than was necessary tó. repelsüch assault.

For the plaintiff we are cited to the case of Grutzwiller v. Lackman, 23 Mo. l. c. 172. In that case Scott, J’., said: “We do not see on what principle the plaintiff was permitted to introduce evidence of his good-character. The rule is stated in the books, that; as evidence is to be confined to the points in issue, the char-; acter of either party cannot be inquired into in á civil suit, unless it is put in issue by the nature of the pro-' céeding itself.” As stated in the statement, that case “was an action in the nature of an action of ejectment to recover possession of a lot in the city of St. Louis.” •'

It should be noted that Judge Scott exempts those' cases where the reputation of the party is put in issue by the nature of the proceeding. In actions fo'r assault self-defense is a good defense to the action. Selffde-fense has a well defined meaning in the. law.’ In such case the party has a right to act upon appearances! If he believes, and has good reason to believe, that he isi in danger of suffering serious bodily injuries at the hands of the. other party he has a right to act in self-defense, using such force only as is necessary tó repel the ..threatened attack. In such cases (in criminal law)1 if the deféndant has knowledge of the turbulent and dangerous character of the other party, such character then becomes a proper element in the question of self-defense. In fact, the previous knowledge' óf the turbulent disposition is not required in such cases. [State v. Feeley, 194 Mo. l. c. 320, overruling State v. Kennade, 121 Mo. 405, on this question.] This ruling in the Feeley case, is, as I understand it, the rule of the court at this time.

But going hack to civil cases, we think that where self-.defense is interposed as a defense to an action for assault and battery and issue is taken thereon by reply, as here, then the turbulent character of the plaintiff is made an issue in the case, in the language of Judge Scott, supra, “by the nature of the proceeding.” Such seems to be the general rule elsewhere. Thus in 2 Am. & Eng. Ency. Law (2 Ed.), page 1002, it is said:

“Evidence as to the reputation of the prosecutor, upon'whom the assault was committed, is unadmissible, where a plea of self-defense is not set up.. But. where a proper case of self-defense is made out, evidence as to the quarrelsome and violent character of the prosecutor is admissible.”

In the very' recent and most excellent work, 2 Buling Case Law, page 567, it is said:

“Where, however, a plea of self-defense is interposed, it is proper to allow the defendant to show the general reputation of the prosecuting witness as a violent and quarrelsome person. While it is necessary in. 'order to render such evidence admissible to show that the defendant knew of the plaintiff’s reputation, it is not necessary that the defendant had knowledge of all the details going to make up such reputation. And where the reputation of the prosecuting witness is thus attacked, evidence is of course admissible on behalf of the plaintiff for the purpose of contradiction.”

In Lowe v. Ring, 123 Wis. l. c. 113, a ease of assault and battery, it is said:

“It is the general rule that evidence of a party’s character is not admissible in civil actions for damages unless his character is directly in issue — as in slander, seduction, and other cases — '■ even though .the cause is one for which a criminal prosecution' may be brought, or where the offense set up in justification involves a crime.’ [Geary v. Stevenson, 169 Mass. 23, and cases cited; Fahey v. Crotty, 63 Mich. 383, 6 Am. St. 305; Cummins v. Crawford, 88 Ill. 312, 30 Am. Rep. 558;. Greenleaf, Evidence, sec. 14b, subd. 4.] This general rule does not go to the extent of excluding such evidence for all purposes. As stated in Keep v. Quailman, 68 Wis. 451, plaintiff’s general reputation as a-man of quarrelsome and violent disposition, if .within '■ the knowledge of a defendant before an affray, is ■ competent evidence to go to the jury upon the issue - of self-defense. [Culley v. Walkeen, 80 Mich. 443; Galbraith v. Fleming, 60 Mich. 403.]”

The Vermont court, in Knight v. Smythe, 57 Vt. l. c. 531, says:

' “The second exception was to the refusal of the court to allow the defendant to show that the female • plaintiff was a domineering, turbulent and quarrelsome ' woman, and that when she had formed a purpose or determination, it was useless to oppose her or attempt to reason with her; and that this was known to the defendant prior to the affray. The testimony of the defendant previously given tended to show that she com- ■ meneed the affray, and that he used no violence toward her except what was necessary for his defence. There can be no doubt that evidence of that charac-' ter is admissible. [Harrison v. Harrison, 43 Vt. 417; State v. Meader, 47 Vt. 78; State v. Lull, 48 Vt. 581.] • The force that a party may use when assailed, in repelling the assault and protecting his person, is largely influenced by his knowledge of the character of the as-. sailant.”

In Golder v. Lund, 50 Neb. l. c. 871, the court said;

, “A witness was asked the following question, referring to the plaintiff: ‘.Were you acquainted with his disposition and character as to being peaceable or quarrelsome?’ This was, on objection, excluded, and the defendant then offered to prove that the witness knew the disposition and character of the plaintiff, and that he was quarrelsome, easily aroused, and had an ungovernable temper. This evidence was offered im support of the plea of self-defense. We can certainly see no reason why it is not proper, in support: of such a defense, to make proof of the plaintiff’s character in a civil action for assault and battery, as much as in a prosecution for homicide; but in such cases the-proof must be of the plaintiff’s general reputation, and not by the opinion of witnesses as to his general character. ’ ’

To like effect are Beckman v. Souther, 68 N. H. 381; Silliman v. Sampson, 59 N. Y. Supp. 923; Harrison v. Harrison, 43 Vt. 417; Keep v. Quallman, 68 Wis. 451; Spain v. Rakestraw, 79 Kan. 758; McQuiggan v. Ladd, 79 Vt. 90.

We doubt whether Vawter v. Hultz, 112 Mo. l. c. 639, and Stewart v. Watson, 133 Mo. App. 44, chiefly relied upon by plaintiff, are sufficiently similar in facts. to be authority against the general doctrine which we here announce. We are at least satisfied that where., self-defense is pleaded as a defense in a civil action, for assault and battery, the nature of the case makes plaintiff’s turbulent disposition (if he has. such a disposition) an element in the case, and the -defendant can show the same in connection with such defense, and this too without a previous showing of his character in this regard by the plaintiff. Plaintiff, of course, can rebut the showing, as was done in this case.

III. Instruction numbered 2 for the defendant, which is challenged by the plaintiff’s able counsel here, reads:

“If the jury believe from the evidence that the plaintiff Davenport was of quarrelsome, turbulent character you may take such fact into consideration for the purpose of throwing light upon the conduct and demeanor of the plaintiff prior to and during the difficulty between him and the defendant, and for the purpose of determining who was the aggressor in such difficulty and also for the purpose of throwing light upon defendant’s apprehension of danger, if any, at the time of the difficulty.”

If we are correct in our ruling as to the admissibility of the evidence discussed in the previous paragraph, this instruction was proper. -In fact its error is only predicated upon the error in admitting the evidence. But in addition to this it should be said that the question of this instruction is not here, under the record. The motion for new trial only urges that “the court erred in giving instructions marked 5, 6, 7, 8, 9, 10, 11 and 13 as requested by defendant.” The instruction number 2, quoted, above, is one given by the court at the “instance of defendant,” and is not one covered by the motion for new trial.

Upon the whole we find no substantial error in this record. In their very able and earnest brief counsel only urge the two matters, i. e. the alleged error in admitting this evidence of plaintiff’s turbulent character and the alleged error in giving the foregoing instruction.

The judgment should be affirmed and it is so ordered.

All concur; Bond, J., in result.