author: WOODSON, J.

text:
    GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN OF MISSOURI v. BRIDGET McFADDEN et al.; MARY O’MALLEY, Appellant.
    Division One,
    July 3, 1908.
    1. LIFE INSURANCE: Insanity of Insured: Finding of Trial Court: Appellate Practice. Where the trial court found that the holder of a beneficiary certificate was sane at the time he executed certain documents relating to a change in the beneficiary of the insurance, and there was evidence both to sustain that issue and to the contrary, the finding of the trial court will, on appeal, be accepted as a settlement of that issue.
    2. -: Benefit Certificate: Change of Beneficiary: Vested Interest: Retrospective Statute. Section 1417, Revised Statutes 1899, Laws 1897, p. 135, providing that no contract between a member of- a fraternal beneficiary association and his beneficiary, that the beneficiary or any person for him shall pay such member’s assessments and dues, shall give the beneficiary a vested right in such certificate, or in the benefit derived therefrom, or deprive the member of the right to change the name of the beneficiary, was not retrospective in its operation, and did not confer any vested right in a certificate issued in 1886 upon the new beneficiary designated by the member.
    3. -:-:-: Prior to 1897. Prior to 1897 the statutes neither expressly prohibited nor permitted a member of a fraternal beneficiary association to change the name of his beneficiary.
    4. -; -: -: -: Vested Interest. Under the statutes of this State a beneficiary named in a certificate of a fraternal beneficiary association issued in 1886 had no vested interest therein. Unless there is found in the laws of the State where the association was incorporated, or in its charter or by-laws, or in the terms of the certificate itself, some provision prohibiting or restricting the right of a member to change the beneficiary, he may do so with the same freedom that he may change the legatee of his will by making a new will.
    5. -: -: -: Payments By Beneficiary: Vested Interest. The mere payment of assessments and dues by the beneficiary named in the benefit certificate under an agreement with the member that the beneficiary would pay them, gives the beneficiary no such equity under the certificate as estops the member from designating another beneficiary.

      6. -:-: -: -: -: Substituting Wife With Another. A beneficiary certificate was issued to a member of the order in 1886, and his wife was named as the beneficiary. Without cause the member thirteen years prior to his death in 1903 turned his wife out of doors and thereafter wholly abandoned her, and she continued to pay the assessments and dues up to 1901, and in January of that year he sent the certificate by one of his daughters to her with a message to the effect that he was having some trouble with some persons who owed him money and that if anything should happen to him she would have the certificate to protect her and take care of her, but the evidence does not show that she surrendered anything of value to him to have herself designated or continued as beneficiary. Soon thereafter he turned against both his wife and children, and to provide for his declining years he agreed with O’Malley that he would adopt his daughter Mary, as his daughter and heir, and designate her as beneficiary in his certificate, if O’Malley would pay his assessments and maintain him during his life, and O’Malley accepted the offer and carried out the agreement and paid $950 thereunder, and the change of the beneficiary was duly made, and in accordance with the charter and by-laws of the order, which specifically provided for a change in beneficiaries. Seld, that the wife had no such vested interest in the certificate as barred the member from designating Mary as a substituted beneficiary, but the wife must be reimbursed for all premiums she has paid, with six per cent interest, and the balance, less the costs and attorney’s fees allowed the order for bringing its bill of interpleader, must be paid to Mary.
    7. -: -: -: Manner of Making Change: Substantial Compliance: Waiver. Where the member has made formal application for a change of the beneficiary and has done all that was in his power to do to comply with the by-laws regulating the manner of making such change, a non-observance of such of the regulations of the order as are for the sole protection of the order or its officers is waived by it, and the benefit will be held by a court of equity to belong to the beneficiary designated in the changed certificate. So that where the by-laws required the designation of the change of the beneficiary to be made on the back of the certificate, and it was impossible for the member to produce the certificate, as shown by his application and affidavit, and the officers issued a duplicate in all respects the same as the original except the difference in the names of the beneficiaries, it will not be held that the change was unavailing and invalid because the change was not indicated in writing on the back of either the original or duplicate, but that provision was for the protection of the order and its officers, and its non-observance was waived, and the change entitled the substituted beneficiary to the benefit. [Disapproving Grand Lodge A. O. U. W. v. Ross, 89 Mo. App. 621.]
    -Transferred from St. Lonis Court of Appeals.
    Circuit court judgment reversed and remanded (with directions).

      Walther S Muench for appellant; F. E. Bacon of counsel.
    (1) The deed of adoption could not he attacked in this, a collateral proceeding. Williams v. Carpenter, 35 Mo. 52; Brown v. Brown, 101 Ind. 340; Hannon v. Steinman, 9 Iowa 112; Eailroad v. Land Co., 175 Pa. St. 95. The motive which may have prompted the making of the deed cannot be inquired into. Kemp v. N. Y. Exch., 34 App. Div. 175. (2) The beneficiary in a fraternal benefit certificate has no vested interest therein. Masonic Ben. Ass. v. Bunch, 109 Mo. 579 ; Wells v. Mut. B. Ass., 126 Mo. 637. (3) In the absence of any laws of the association prescribing particular formalities for a change of beneficiary, any dear, definite designation of a different beneficiary will suffice. Masonic B. Asso. v. Bunch, 109 Mo. 579; Gr. Lodge A. O. TJ. W. v- Childs, 70 Mich. 163; Isgrigg v. Schooley, 125 Ind. 94; Bacon on Ben. Soc., sec. 308a. (4) Where there is no adopted law of the order regulating the matter, a long-established custom is equivalent to a formally adopted law of the society. State ex rel. v. Gr. Lodge A. O. IJ. W., 70 Mo. App. 466; Angelí & Ames on Corp., sec. 328; Davidson v.. K. P., 22 Mo. App. 263. (5) The society may waive compliance with its laws. Gr. Lodge A. O. U. W. v. Eeneau, 75 Mo. App. 409; St. Louis Pol. E. Assn. v. Strode, 103 Mo. App. 694; Schoneau v. A. O- U. W., 85 Minn. 349; Manning v. A. O. U. W., 86 Ky. 136; Titsworth v. Titsworth, 40 Kan. 571; Sup. Conclave v. Coppella, 41 Fed. 1; Allgemeier Bund v. Adamson, 92 N. W. 786; Aid Soc. y. Lupoid, 101 Pa. St. Ill; K. of H. v. Watson, 64 N. H. 517; Martin v. Shibbings, 126 111. 387; March y. Sup. CL, 144 Mass. 512; Adams y. Ur. Lodge, 105 Cal. 321; Schardt v. Schardt, 106 Tenn. 276; Anthony v. Asso., 158 Mass. 322; Splawn y. Chew, 60 Tex. 532; Pa. Rel. Co. y. Wolfe, 52 Atl. 247; Fisk v. Equitable Aid Union, 11 Atl. 84; Weber y. Ancient 0. of P., 104 Mo. App. 729; Niblack on Benev. Soc., sec. 219; Bacon on Ben. Soc. (2 Ed.), sec. 430; Delaney v. Delaney, 175 111. 197; Police R. Asso. v. Tierney, 116 Mo. App. 447; Labey v. Labey, 61 L. R. A. 795. (6) Payment of assessments by beneficiary gives him no claim upon benefit. Masonic B. Asso. v. Bunch, supra; Fisk v. Equitable Aid Union, 11 Atl. 84; R, S. 1899', sec. 1417.

      Bass & Broclc for respondent.
    (1) The statutes of this State applicable to fraternal insurance provide that any change of beneficiary or revocation of a certificate shall be done by written or printed notice to the association in manner and form provided for in its by-laws. Sec. 1417, R. S. 1899; Black on Interpretation of Laws, p. 273; Friedman v. Sullivan, 48 Ark. 213; King v. Inhabitants of Threlkeld, 4 Bam. and Aid. 229; King v. Inhabitants of Newark-upon-Trent, 3 Barn. & C. 59. (2) A contract between insured and respondent will be inferred as a matter of law from the fact that respondent paid the dues and assessments of insured’s certificate with the knowledge and consent of insured for a period of thirteen years. Bush v. Bush, 81 Mo. App. 562; Sprague v. Sea, 152 Mo. 327; Voerster v. Kunkel, 86 Mo. App. 194; Hickman v. Hickman, 46 Mo. App. 496. (3) A bill of interpleader is a strictly equitable proceeding and the decree of the chancellor as to the disposition ■of the fund should be according to the equities of the •case. Miller v. Ins. Co., 68 Mq. App. 19; Funk v. Thomasson, 84 Mo. App. 490'; Grand Lodge v. Renean, 75 Mo. App. 402. (4) A beneficiary in fraternal insurance certificate, while not having vested interest in the fund, has such an interest as that she has a right to insist that in order to cut her out, the change of beneficiary should be made in the manner provided in the contract and that the member be sane at the time of the attempted change. Holland v. Taylor, 111 Ind. 121; Grand Lodge A. O- H "W. v. Frank, 94 N. W. 731; Brown v. Grand Lodge A. O. U. "W., 57 Atl. 176; Rollins v. McHatton, 16 Col. 203; Mellows v. Mellows, 61 N. H. 131; Supreme Lodge v. Nain, 60 Mich. 15; Hotel Men’s Mutual v. Brown, 33 Fed. 11. (5) The constitution, by-laws and certificate constitute the contract of insurance between a benefit society and its members. Grand Lodge A. O. U- W. v. Sater, 44 Mo. App. 445; Grand Lodge v. Eisner, 26 Mo. App. 108. (6) The validity of the substitution of a new beneficiary in place of one named in the original certificate must be determined by the terms of .the certificate and of the charter and by-laws of the society. If these provide for the substitution of a beneficiary in a certain way, all other ways are excluded, and a substitution not in substantial compliance with the mode prescribed is invalid. Head v. Supreme Council, 64 Mo. App. 212; Coleman v. Supreme Lodge, 18 Mo. App. 189; Stewart v. Legion of Honor, 36 Mo. App. 330; Hammerstein v. Parsons, 38 Mo. App. 336; Hoffman v. Grand Lodge, 73 Mo. App. 47; Bacon on Ben. Soc., par. 218; Niblock on Ben. Soc., par. 161, 307; Grand Lodge A. O. H. W. v. Ross, 89 Mo. App. 621; Holland v. Taylor, 111 Ind. 121; Rollins v. McHatton, 16 Col. 203; Mellows v. Mellows, §1 N. H. 131; Hotel Men’s Mutual v. Brown, 33 Fed. 11; Renk v. Herman Lodge, 2 Demarest (N. Y.) 409; McCarthy v. Supreme Lodge, 153 Mass. 314; Stephenson v. Stephenson, 64 Iowa 534; Olmstead v. Society, 37 Kan. 93. (7) The Grand Lodge, A. O. U. W., being a fraternal benefit association, cannot, through its officers, waive the requirements of its own laws in this State as to* the manner and form in which a change of beneficiary should be effected so as to divest the original beneficiary, for this would be in effect a “disbursement” of its funds and be contrary to the statute. Sec. 1408, R. S. 1899. (8) When a member of a benefit society voluntarily gives his benefit certificate to his beneficiary and she has paid dues and assessments and given financial aid to the member under the belief that she is to receive the fund under the certificate upon his death, he thereby waives his right to change the beneficiary. Under these circumstances, a court of equity will hold that the member has released his power to effect such a change and conveyed to his beneficiary a vested right to the benefit. Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 60; Leaf v. Leaf, 92 Ky. 166. (9) ' The member in the case at bar made a false affidavit for the purpose of obtaining the new certificate. Under these circumstances there can be no waiver of the bylaws as against the original beneficiary. To constitute a waiver by officers of the order, there must be actual knowledge of all the facts and an acquiescence in the failure to comply with the contract; otherwise there is no waiver as against the defendant, Bridget McFadden. Johnson County v. Lowe, 72 Mo. 637; Haysler v; Owen, 61 Mo. 270; Advance Thresher Co. v. Pierce,. 74 Mo. App. 676; Mohney v. Reed, 40 Mo. App. 99. (10) When the member of a benefit society has voluntarily delivered his certificate to his beneficiary and there is no evidence to show any demand for its return, his affidavit that said “certificate is not under his control but is withheld from him” is false and the society does not waive the by-laws by issuing a new certificate naming a new beneficiary upon the false affidavit. The rule that the action of the Supreme Couneil in issuing a new certificate is conclusive is based upon the idea that the affidavit states the truth. Such new certificate, issued under these circumstances, cannot give the new beneficiary any right of action against the society or affect the rights of the original beneficiary. Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 81; Eoyal Arcanum v. Tracy, 169 111. 123 ; McGrew v. McGrew, 93 111. App. 76, affirmed 190 111. 607. (11) The new certificate can have no effect'in law or equity if made and issued as a result of undue influence upon the member, or while the member was suffering from an infirmity of mind, or as the result of any fraud practiced upon the member or the benefit society. Cason v. Owens, 100 Ga. 142; Onsby v. Supreme Lodge K. of H., 101 Tenn. 16; Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 60; Shuman v. Supreme L. K. of H., 110 Iowa 480; Sovereign Camp W. of W. v. Wood, 114 Mo. App. 471. (12) There was absolutely no consideration moving to the child, such as is contemplated ■ in section 5248, Eevised Statutes 1899', relating to the adoption of children. (13) When the adoption of a child is for the express purpose of changing beneficiary to said child, said adoption and change of beneficiary will not be upheld by the courts. (14) When the adoption is for the purpose of speculation and the hypothecation of the benefit by evading the law of the State and for the purpose of defrauding the original beneficiary, said adoption and change of beneficiary is ineffectual and contrary to the statute regulating these societies in this State. Sec. 1419, E. S. 1899.
   WOODSON, J.

-The plaintiff began this suit in the circuit court of the city of St. Louis by filing therein a bill of interpleader, alleging, in substance, that it was a fraternal beneficial organization, duly authorized to issue benefit certificates to its members; and that in the year 1886 Michael McFadden became a member of the association, and that it issued to him a benefit certificate for the sum of $2,000, payable to his wife, Bridget McPadden, upon his death, upon certain conditions stated in the bill. It then alleges that about ten years after the issuance of this certificate McPadden had a falling out with his wife and he then had that certificate cancelled and a new one issued in favor of Mary O’Malley, an adopted daughter. McPadden died in, the year 1903, and both his widow and adopted daughter presented claims to the association for the $2,000, each claiming to be the legal owner thereof. The bill then states that the interpleader did not know which of the two really owned the fund, and asked permission to bring it into court, and that the respective claimants be required to interplead for the same. The permission was granted and the money was deposited in court, and they were ordered to interplead therefor. Each of them filed their interplea, setting up their respective claims to the money; and after the issues were joined the cause was tried before the court, which resulted in a finding and judgment for the widow, and the daughter duly prosecuted her appeal to the St. Louis Court of Appeals. The latter court reversed the judgment of the circuit court with directions to repay Mrs. McPadden all premiums • she had paid on the certificate, with six per cent interest from the time each payment was made, and to pay the balance of the fund to Mary O ’Malley.

But as the opinion of the court was in conflict with the opinion of the Kansas City Court of Appeals delivered in the case of Grand Lodge A. O. U. W. v. Ross, 89 Mo. App. 621, the cause was for that reason certified to this court.

"We have very carefully read and considered the opinion of the St. Louis Court of Appeals in this ease, and the opinion of the Kansas City Court of Appeals in the Ross case, as well as the briefs and authorities cited by learned counsel for the respective parties to this suit; and, after a very careful consideration, we have reached the conclusion that the opinion of the St. Louis Court of Appeals correctly decides the case, which we affirm in all particulars and adopt as the opinion of this court, which is as follows:

“Plaintiff, a fraternal beneficiary association, on September 12, 1886, issued to Michael McP'adden, a member of Meta Lodge No. 19, of said association, a benefit certificate for the stun of $2,000, payable at the death of said Michael McFadden to his wife Bridget. About thirteen years prior to his death, which occurred April 7,1903, Michael drove his wife and children from his home and thereafter lived separate from his wife, malting his home most of the time with a married daughter until about the month of April, 1901. After this time he was taken care of by John O'Malley, father of appellant, Mary O Malley. Early in the year 1901 McFadden sent the certificate by one of his daughters to his wife, with a message to her to the effect that he was having some trouble with some gentlemen who owed him money, and that if anything should happen to him she would have the certificate to protect herself and take care of her. The evidence shows that Bridget, out of her own funds, paid all the assessments levied against McFadden by the society until about January 1, 1901, and that she offered to pay assessments after January, 1901, but the lodge officers refused to accept her tenders. The amount paid by her in assessments was shown to be about $450.
“In March or early in April, 1901, the evidence is that Michael McFadden approached John O’Malley and represented to him that he had separated from his family and had no one to take care of him; that he was too old to work and that if something was not done, he would soon have to go to the poor house, and proposed to Mr. O ’Malley to adopt Mary O ’Malley, the minor daughter of John, as his daughter and heir and designate her as the beneficiary in his certificate of insurance, if John O’Malley would take care of him the balance of his days. O’Malley assented to the proposition, and thereafter, to-wit, April 5, 1901, with the intent of designating Mary O’Malley as his beneficiary, McFadden made the following affidavit;
“ ‘The undersigned, Michael McFadden, being duly sworn, does dépose and say that he is a "Workman "Degree Member in good standing in Meta Lodge No. 19, located in St. Louis, State of Missouri, that the number of his beneficiary certificate is 25609, that said beneficiary certificate is payable to his wife, Bridget McFadden, and was issued at St. Louis, Missouri, by the Grand Lodge of the Ancient Order of Unitéd Workmen of Missouri, on the 12th day of September, 1886.
“ ‘The undersigned further deposes and says that the said beneficiary certificate is not in his possession or under his control but is withheld from him.
■ “ ‘In consequence of the said detention and withholding beneficiary certificate, the undersigned does hereby make application for a duplicate certificate, which he asks may be issued to him in the place of the original beneficiary certificate, above described, and as a condition necessary to the issuance of said duplicate, the undersigned Michael McFadden does hereby cancel and annul said original benefit certificate and relinquish all rights, benefits and claims that may at any time arise, either to him or his beneficiaries under the said original beneficiary certificate described at the outset, and directs that a new benefit certificate be issued to him in which payment shall be made to Mary O’Malley, bearing relation to me of adopted daughter —said new certificate to be then issued in lieu of the original which thereupon shall become null and void. ’
“And on the same date executed and acknowledged the following deed of adoption:
“ ‘Know all men by these Presents, That I, Michael McFadden, of the city of St. Lonis, in the State of Missouri, for good and valuable consideration to me moving, do hereby under.-the provisions of chapter 90, Revised Statutes of Missouri of 1899, adopt Mary O’Malley, daughter of John and Mary O’Malley, of the said city of St. Louis, as my own child, hereby granting unto her, the said Mary O’Malley, all the rights and privileges which she might or could enjoy were she my own child, and all the. rights conferred upon adopted children by the laws of the State of Missouri. ’
“On September 16th, 1901, Mary O’Malley executed the following promise and agreement:
“ ‘I promise and agree with my father, Michael McFadden, that I will from this time forward pay the assessments, dries, etc., which shall be payable by him as a member of Meta Lodge of the Ancient Order of United Workmen, when and whenever such assessments, dues, etc., become payable according to the laws and rules of said United Workmen. I further agree to pay to said McFadden during his life four dollars every week, such payments to be made on every Saturday. In consideration of my promise as above said McFadden shall cause the name of the beneficiary named in his certificate of membership in said United Workmen to be changed so that I shall be named as the beneficiary therein. And if I fail to pay said assessments, dues, etc., as aforesaid, and if I fail to pay said McFadden said sum of four dollars every week, as aforesaid, then I shall lose all my title as said beneficiary and said McFadden shall be at liberty to change the name of the beneficiary in said certificate and cause the name of someone else than me to be named as such beneficiary in said certificate.’
“On the same day, Michael McFadden made his will, by which he disinherited his wife and children and willed the proceeds of his certificate of insurance (his only asset) to Mary 0 ’Malley, his adopted daughter, and designated her as his sole beneficiary, and directed that the insurance be paid to her at his death. On the presentation of McFadden’s affidavit of April 5, 1901, and the exhibition of the deed of adoption to the officers of the Superior Lodge of the association, a new certificate of insurance of the same number as the original (No. 25609) was on August 21,1901, signed by Vm. H. Miller, Grand Master Workman and Henry W. Meyer, Grand Recorder, and was countersigned by the Master Workman and Recorder of Meta Lodge, sealed with the seal of the Lodge, and in this condition was delivered to Mr. McFadden. In the new certificate Mary Q’Malley was described as the adopted daughter of Michael McFadden and was named as his beneficiary. The evidence is that 0 ’Malley paid all the assessments after January, 1901, as well as all dues, claimed by the association from McFadden. He testified that these assessments and dues and hospital and medical expenses paid out by him for McFadden, together with clothing and money furnished him, aggregated about $950: The evidence is that Mary O’Malley, after her adoption, continued to reside with her mother and was supported and maintained by her parents, and that McFadden contributed nothing toward her support.
“The laws of the order provide that members’ children by legal adoption may be designated as beneficiaries. Law No. 185 of the order concerning the issuance of duplicate certificates is as follows:
1 Duplicate Certificate. — When a beneficiary certificate shall be lost or destroyed, or it shall not be under the control of the member to whom it was issued, he may have a duplicate .certificate issued, if he desires, upon making affidavit of the fact, upon a form furnished by the Grand Recorder, and executing á release to the Grand Lodge of all rights and benefits under the original certificate. The same rule shall apply to the payment of beneficiaries who may not be able to produce the certificate, and as a further security the Grand Master Workman and Grand Recorder may require such other assurances, releases or indemnities, as may seem to the Grand Master Workman, Grand Recorder and Finance Committee necessary for the protection of the Grand Lodge.’
“Concerning the change of name of the beneficiary, Law No. 194 of the Order reads as follows:
‘ ‘ ‘ Change of Beneficiary. — Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by payment to the Grand Lodge of the sum of fifty cents, but no change of direction shall be valid or have any binding force or effect until such change shall have been reported to the Grand Recorder, the old certificate, if practicable, filed with him, and a new beneficiary certificate issued thereon, and said new certificate shall be numbered the same as the old certificate; provided, however, should it be impracticable for the recorder to witness the change desired by the member, attestation may be made by a notary public or clerk of a court of record, seal to be attached in attest.’
“It was alleged by Mrs. McFadden that Michael McFadden at the time he executed the deed of adoption and made the affidavit above set forth was insane. This allegation was put at issue by the plea of Mary 0 ’Malley, and there was evidence pro and con touching the sanity of Mr. McFadden at the time he executed said documents. The learned trial judge specially found that McFadden was sane and as his finding is supported by the greater weight of the evidence, we deem it unnecessary to further notice this issue.
“When McFadden died, both his widow, as holder ■of the original certificate, and Mary O ’Malley, as holder of the new certificate, demanded payment of the association. The association filed its bill of interpleader in the St. Lonis Circuit Court, deposited the $2,000, less $103 allowed it as costs and attorney’s fees, and procured an order requiring the rival claimants to interplead for the fund, and was discharged. In compliance with the order to interplead, the rival claimants ■of the fund appeared in court and filed their respective pleas, and the issues made up thereby were submitted to the court, who, after hearing the evidence, found for Bridget McFadden and awarded her the whole of the fund. To this award Mary O’Malley appealed in the usual way.
“The evidence shows that Mr. McFadden without ■cause turned his wife out of doors about thirteen years prior to his death and thereafter wholly abandoned her; that in April, 1901, for no cause, he turned against both his wife and children, and being old and unable to work and having no means, he became apprehensive that he might become a public charge. To avoid the humiliation of becoming an inmate of the poor house, he approached John O’Malley and proposed to him that he would adopt his daughter, Mary, as his daughter and heir, and designate her as beneficiary in his certificate of insurance, if O’Malley would pay his assessments and maintain him during the remainder of his life. O’Malley accepted the offer and carried out the agreement. A deed of adoption was executed and a new certificate designating Mary O’Malley as beneficiary was issued by the association.
“Section 1417, Revised Statutes 1899 (Laws 1897, p. 135), provides that no contract between a member of a fraternal beneficiary association and his beneficiary, that the beneficiary or any person for him, shall pay such member’s assessments. and dues, shall give the beneficiary a vested right in such certificate, or in the benefit derived therefrom, or deprive the member of the right to change the name of the beneficiary, or revoke the certificate on written notice to the association in the manner and form provided for by its by-laws. Under the provision of this section, Mary 0 ’Malley acquired no vested interest in the certificate of insurance by virtue of the contract entered into and performed by her father, John O’Malley, to pay McFadden’s dues and assessments and to maintain him during the rest of his natural life. The original contract between Mr. McFadden and the association was entered into prior to the passage of the Act of 1897, and as that law can have no restrospective operation (Sec. 15, Bill of Rights) the interest of Mrs. McFadden, if she acquired any, either in law or in equity, was not affected by the Act of 1897, but is governed by the law as it stood prior to the enactment of section 1417, supra.
“The original certificate of insurance was issued September 12, 1886. The law then in force (Art. 10, ch. 21, R. S. 1879), neither expressly prohibited nor permitted a member of a fraternal beneficiary society to change the name of his beneficiary. Section 972 of the article, the only section defining the powers and rights of these associations, authorizes them', when incorporated under the provisions of the article, to provide for the relief and aid of families, wives, orphans and other dependents of their deceased members, or for assisting members of such societies or associations. In the revision of 1889, this section as amended appears as section 2823 and provides that any beneficiary, under a certificate issued by any fraternal beneficiary association, may pay the dues and assessments charged against such member on account of his membership. This section also expressly authorizes the issuance of beneficiary certificates for the benefit of the classes it names, but it neither expressly authorizes nor prohibits a change of name of the beneficiary. Section 2831, Revised Statutes 1889', requires that every corporation under the act, including fraternal benefit societies, shall make by-laws for its government and support, followed by a proviso that such by-laws shall be conformable to its charter and shall not import or limit any provisions thereof or enlarge its focus. It is the universal law that a beneficiary named in a fraternal benefit certificate has no vested interest therein. [Masonic Ben. Assn. v. Bunch, 109 Mo. 560; Hofman v. Grand Lodge B. L. F., 73 Mo. App. 47; Grand Lodge A. O. U. W. v. Reneau, 75 Mo. App. 402; Sup. Council L. of H. v. Neidlet, 81 Mo. App. 508; Morton v. Royal Tribe of Joseph, 93 Mo. App. 78; Carpenter v. Knapp, 101 Ia. 712, 38 L. R. A. 128; Shipman v. Protected Home Circle, 174 N. Y. 398.]
“The designation of a beneficiary in a certificate issued by a fraternal beneficiary association is but a present expression of .the member’s will, revocable at any time, and unless there is to be found either in the laws of the State where the association was incorporated, or in its charter or by-laws, or in the terms of the certificate itself, some provision prohibiting or restraining the right of the member to change the name of the beneficiary, he may do so with the same freedom as he may change the name of a legatee in his will by the making of a new will before the first one takes effect; provided, that where the rules and regulations of the association provide a specific method of changing the name of the beneficiary, such rules and regulations must be substantially complied with in order to effect a new designation. The laws of the association read in evidence expressly provide for the making of a new designation.
“The question then arises, first, whether or not Mrs. McFadden acquired such an equity in the original certificate as to estop her husband from making a new designation; and, second, if she did not acquire such equity, was the certificate the result of a valid exercise of the right of Mr. McFadden to change the name of his beneficiary?
“In Smith v. Nat. Ben. Society, 123 N. Y. 85, 9 L. R. A. 616, it was held that the rule that a member of a beneficiary association might change the name of his beneficiary without the consent of the beneficiary, does not prevent the making of a contract between the parties by which a vested interest would pass to the designated beneficiary, which will compel the society to reo ognize him as the one entitled to the funds.
“In Maynard v. Vanderwerker, 30 Abbott (N. C.) 134, it is held: ‘Although ordinarily the designation of a beneficiary in the certificate of a member of a fraternal beneficiary society is in the nature of an inchoate or unexecuted gift, revocable at any time by the donor, such member may by contract with the beneficiary by the terms of which the latter is to pay the assessments and receive the benefits, vest an interest in the beneficiary and deprive himself of the power of making a change in the designation of the beneficiary; and where such contract has been performed on the part of the beneficiary by paying the assessments levied, such beneficiary is entitled to a death benefit as against a third person whom the member has attempted to substitute as beneficiary.’ On the authority of this case Bacon says: ‘If, under an agreement with a member, the beneficiary pays the assessments, the latter may -acquire such a vested right as will prevent a change.’ [1 Bacon on Ben. Soc. & Life Ins. (3 Ed.), sec. 295.] And in Leaf v. Leaf, 92 Ky. 166, it was held that where the wife to whom the original certificate was issued kept it alive by paying the assessments out of her own funds and surrendered property to the husband upon the faith that she was to have the fund, she acquired a superior equity to all others which could not be defeated by tbe husband by making a new designation according to tbe by-laws of tbe order.
“In Jory v. Sup. Council, 26 L. R. A. 733, it was ruled that tbe mere payment of dues and assessments by tbe beneficiary did not give him a vested interest in tbe certificate.
“There is no evidence of any agreement between McFadden and bis wife that she should pay bis assessments or that she surrender to him anything of value in consideration that be would have her designated as bis beneficiary. All that appears is that she paid tbe assessments and that early in tbe year 1901 be sent her tbe certificate. Granting that from these facts a tacit agreement might be inferred that she should pay tbe assessments in consideration of tbe fact that be would name her as bis beneficiary, under tbe ruling in Masonic Ben. Assn. v. Bunch, 109 Mo. 560, wherein it was held that tbe mere payment of tbe assessments by tbe beneficiary under an agreement with tbe member that be should do so gave tbe beneficiary no such equity under tbe certificate as to estop tbe member from making a change in tbe name of his beneficiary, we bold that Mrs. McFadden, by paying tbe assessments, did not acquire such an equity in tbe certificate as to estop her bus-band from exercising bis right to make a new designation and that tbe designation of Mary 0 ’Malley as beneficiary entitled her to tbe fund, provided tbe change was effected in substantial compliance with tbe regulations of tbe association.
“Tbe laws of tbe order provide that when a beneficial certificate is lost or destroyed, or is not under tbe control of tbe member or bis beneficiary after bis death, be may have a duplicate certificate issued upon making affidavit to tbe facts and by executing a release of all bis rights and benefits under tbe original certificate. Tbe affidavit made by McFadden was in compliance with this law of tbe Order and entitled him to a duplicate certificate. A new certificate was issued to him, but it was not a duplicate of the original one, for the reason that Mary O’Malley was designated as beneficiary in the new certificate, whereas Bridget McFadden was the beneficiary named in the original certificate. A duplicate has been judicially defined to be an original instrument reproduced, not a new agreement, but merely written evidence of the lost instrument to take its place. It must be the same in all other respects as some other instrument from which it is distinguishable. [State ex rel. Graef v. Forest Co., 74 Wis. 610; Bank v. Farnsworth, 38 L. R. A. 843; Railroad v. Heidenheimer, 82 Tex. 195; Nelson v. Blakey, 54 Ind. 29; Mc-Cuaig v. City Sav. Bk., 111 Mich. 356.]
“Law 194 of the association provides that a member desiring at any time to make a new designation as to its payment may do so by authorizing such change in writing on the back of the certificate in the form, prescribed and attested by the recorder with the seal of the lodge attached, to be approved by the Grand Recorder, the old certificate, if possible, to be filed with him and the new certificate issued thereon. The old certificate was not in the possession of McFadden and hence he could not comply with the strict requirements of this law. But it is contended by appellant that the spirit and intent of the law was fully complied with; that it would have been a useless ceremony to have first issued a duplicate certificate to McFadden and then for him to have authorized the change of his beneficiary on the back of the duplicate certificate and to have a new certificate issued; that substantially all this was accomplished by McFadden’s affidavit and cancellation and relinquishment of all benefits and claims on the original certificate. Those laws of the order were made primarily for the 'benefit of the association, to prevent imposition upon it and a conflict of claimants, and as the beneficiary has no vested rights in the certificate, it is competent for the order to waive a strict compliance of such regulations as are solely for its own protection. [2 Bacon on Ben. Soc. (3 Ed.), sec. 430; Grand Lodge A. O. U. W. v. Reneau, 75 Mo. App. 409 ; Manning v. A. O. U. W., 86 Ky. 136.]

The main question is, did the member succeed in expressing his intention to change his beneficiary to the satisfaction of the society and in substantial compliance with th¿ laws of the order? He did not have the original certificate, and could not therefore authorize a change in writing on the back of it, nor could he surrender it to the Grand Recorder, but he did authorize a change of the name of the beneficiary in writing and he effectually relinquished all claims to the original benefit certificate. His relinquishment was as effectual as if he had surrendered the certificate with the proper indorsement thereon to the Grand Recorder. He did all that was in his power to do under the circumstances to make a new designation and to relinquish all benefits of the original certificate. He did what he had a lawful right to do and what the respondent could not prevent him from doing, and which, when done, deprived Mrs. McPadden of no vested right or interest. What he did was, under the circumstances, in strict compliance with the laws of the order. The variation from the forms prescribed by the laws of the order was made by the grand officers of the association, not by the insured. Under these circumstances, it would be a hard ruling to hold that having done all he could do in the first instance to designate a new beneficiary, all the laws of the order required him do, his will should be defeated for the reason the supreme officers of the order on whom he had a right to rely in the issuance of a new certificate, waived a strict compliance with one of the rules of the order.

“In Lahey v. Lahey, 61 L. R. A. 795, following the •case of Supreme Conclave, etc., v. Cappella, 41 Fed. 1, it was held that: ‘The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions:

“ ‘1st. If the society has waived a strict compliance with its own rules, and, in pursuance of a request of the insured, to change his beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued.
“ ‘2d. If it be beyond the power of the insured to comply literally with the regulations, a court of equity will treat the change as having been legally made.
“‘3d. If the insured has pursued the course pointed out by the laws of the association and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will treat the certificate as having been actually issued.’
“In Isgrigg v. Schooley, 125 Ind. 94, the holder of the certificate in a benefit society, the by-laws of which required that when a member desired to change his beneficiary, he should surrender the original certificate, it appeared that the beneficiary originally named had been the member’s wife who had abandoned him and refused to give up the certificate. The insured complied with all the requirements of the laws of the order in respect to the change of the name of the beneficiary except the surrender of the original certificate and assigned its loss as an excuse when a new certificate was issued. After the death of the member, the court held that the acts of the deceased constituted an equitable change in beneficiary. Nally v. Nally, 74 Ga. 669; Marsh v. Sup. Council, 149 Mass. 512, are parallel cases, and this doctrine was recognized by ns in St. Louis Police Relief Assn. v. Strode, 103 Mo. App. 694, and National Amer. Assn. v. Kirgin, 28 Mo. App. 80.
“In Titsworth v. Titsworth, 40 Kan. 571, it was held: ‘Where the association issues a certificate or changes the beneficiary on the application of a member, all questions as to whether it was done or not in accordance with the rules-and regulations is concluded/ While this case seems to be opposed to current authority, it serves to mark the distinction in respect to the observation of the regulations the courts have drawn between cases where a new certificate designating a new beneficiary has been issued and the cases where the member has made application for a change of his beneficiary, but the society either failed to act upon the application or refused to make the change. In the former class, the courts generally hold that a nonobservance of such of the regulations as are for the sole protection of the society may be waived by it, and that if the essentials of the regulation have been substantially complied with the certificate will be held valid. In the latter cases, the general rule seems to be that the member must have complied with the regulations and done all that it was in his power to do to effect the change, to authorize a court of equity, after his decease, to treat the change as having been made.
“But the Kansas City Court of Appeals, in Grand Lodge A. O. U. W. v. Ross, 89 Mo. App. 621, on a state of facts not distinguishable from the facts in the case at bar, held that the substitution of the new beneficiary was ineffectual and awarded the fund to the beneficiary named in the original certificate. In support of this ruling, the court cited Coleman v. Knights of Honor, 18 Mo. App. 189, and Head v. Sup. Council, etc., 64 Mo. App. 212.
“In the Coleman case the member gave the society a written notice of his desire to change the name of his beneficiary. The society took no action on this notice and issued no certificate. On the death of the member, the society paid the fund to the beneficiary named in the original certificate. Suit was brought by Coleman, claiming to be entitled to the fund as assignee of the original certificate. The society had adopted specific rules and regulations in respect to the designation of a new beneficiary, none of which were complied with, and the court very properly held the attempted assignment of the benefit was of no effect.
“In the Head case, the by-laws of the order provided : ‘ Sec. 162. Every member, at his initiation into the order, shall have a benefit certificate issued to him. Each member may enter upon his application the name or names of the members of his family, or those to whom he desires the benefit paid, and they shall be entered in the benefit certificate according to said direction. A member may at any time, when in good standing, change his beneficiary upon complying with the requirements hereinafter provided, and upon surrender of his benefit certificate and payment of a fee of fifty cents. Brothers desiring a change of beneficiary shall make application to the branch for its consent to the charge, which application shall be in writing, and read at a regular meeting of the branch, and deferred for branch action to the next regular meeting, when, if three-fourths of those present approve of the change as requested, the change shall be made by the supreme secretary upon receipt of the benefit certificate and a fee of fifty cents, accompanied by a certified copy of the branch action on said application; provided, that, by the unanimous consent of the meeting at which the application for the ■change is first read, action may he had at said meeting.’
“The application of Ryan, the member, on which 'the new certificate'was issued was as follows:

St. Louis, February 8, 1894

To The Supreme Secretary, Catholic Knights of America.

Dear Sir: — I hereby request that my benefit certificate in your order be changed from my wife, Mary Ryan, who is dead, to John J. Head, pastor of the Annunciation Church, St. Louis, Mo. I am a member in good standing of Branch 92, Catholic Knights of America. his

William X Ryan mark

Witness: James J. Brady; Wm. Lawson.

“On this state of facts the court said: ‘It is obvious that the method adopted by plaintiff and Ryan to effect a change of beneficiaries was in no respect a compliance with section 162, supra, of the by-laws. No application was made to the branch lodge, and no notice was given to it or to defendant of the desired change. Counsel for plaintiff concedes this.’

“Neither of these cases is authority for the ruling in the Ross case, and it seems to us that the Ross case is out of line with the best considered cases of this and other jurisdictions. [Authorities, supra.]

“We think that Mr. McFadden substantially complied with the regulations of the association providing for a change in the name of his beneficiary, and that the officers of the association in issuing the new certificate violated no rule or law of the association, and we think the new certificate, when issued, became an effective and binding contract, and that McFadden and -the association, being the only persons who had any vested interest therein, had the right to waive a mere -formality.

“But we do not think that Bridget McFadden should he turned out of court without any relief. With, her own means she kept the insurance alive for twelve- or thirteen years by paying the assessments thereon, and it would be a gross injustice not to reimburse her out of the fund for the money thus expended. On. principles of equity she is entitled to so much of the-fund as will make her whole. [Leaf v. Leaf, 12 Ky. L. Rep. 47.]

“ Our conclusion is that the judgment of the circuit court should be reversed and the cause remanded with direction that out of the fund paid into court, the court award Bridget McFadden a sum sufficient to reimburse her for all. assessments and dues paid by her to the association, together with six per cent interest thereon from the date the fund was paid into court, and that the court award to Mary O’Malley the balance of said fund; each party .to pay one-half of the costs that have or may accrue in the circuit court.”

It is therefore ordered that the judgment of the circuit court be reversed and the cause remanded with directions to enter judgment in accordance with the mandate of the St. Louis Court of Appeals.

All concur, except Vallicmt, P. Jabsent.


source: Caselaw Access Project

author: LAMM, J

license: Public Domain

text:
    ELIZABETH L. DONALDSON et al. v. WILLIAM RUSSELL ALLEN et al.; THOMAS ALLEN, Appellant.
    Division One,
    July 3, 1908.
    1. PARTITION: Attorney’s Fee: Amount: Presumption. Where the whole record of the partition proceeding was before the judge entering the final decree, the presumption is that he knew the value of the services rendered by plaintiff’s attorneys, and that he did not err in gauging the size of the fee allowed.

      2. --: -: -: $5,000. Where the sales made aggregated well on to $100,000, and the character of the services rendered strictly incident to the partition involved trained legal learning and judgment, a fee for $5,000 for plaintiff’s attorneys is little enough.
    3. -: Equitable: Attorney’s Fees as Costs. In an equitable partition, as contradistinguished from a strict statutory partition (so-called), plaintiff is entitled to an allowance for attorney’s fees to be taxed as costs. Equitable features are everyday incidents of partition suits, and probably the greater number of such suits are equitable in their nature, and if justice and reason underlie the allowance of attorney’s fees in one class of partition suits it is impossible to see why they do not apply in the other class — unless plainly without the meaning of the statute. But those fees should be restricted to the partition proper, and not extended to payment for services on incidental issues heard and determined.
    4. -: -: -: Acquiescence. Long and uniform acquiescence of the bench and bar in the opinion that attorney’s fees are allowable in an equitable partition is persuasive evidence of what the law is on the subject. And the fact that plaintiff in such cases has long been allowed as costs the fees of his attorney and no case has ever come to this court in which the correctness of that practice was called in question, although in many cases it has been assumed that such allowance was proper, is persuasive evidence that the statute was properly construed.
    5. -: --: -. Equity follows the law, and in equitable partition the court should proceed according to the statute; and wherever fees are allowable under the statute they should be allowed in the equitable partition.
    Appeal from St. Louis City Circuit Court. — Row. Daniel G. Taylor, Judge.
    Affirmed.

      Henry W. Allen for appellant.
    (1) Costs are the creatures of statutes, at common law no costs being allowed. Such statutes are in derogation of the common law, and must he strictly construed. Baldwin v. Boulware, 82 Mo. App-. 321; Jackson County v. Stone, 168 Mo. 577; Jackson y. Pulton, 87 Mo. App. 226; Ring v. Vogel Paint Co., 46 Mo. App. 374. (2) Attorneys’ fees cannot be allowed as costs under tbe general provision of the statutes. R. S. 1899, sec. 1547; Railroad v. Railroad, 138 Mo. 591. (3) Attorneys’ fees cannot be allowed as costs unless there is an express statute to that effect. Gulick v. Huntley, 144 Mo. 241; City v. Meintz, 107 Mo. 611; Waters v. Waters, 49 Mo. 385. (4) The statutory provision in this State, section 4422, Revised Statutes 1899, does not apply, as the present suit was not brought under that statute. Donaldson v. Allen, 182 Mo. 626; Gulick v. Huntley, 144 Mo. 241. (5) And that statute has no application in contested cases. Liles v. Liles, 116 Mo. App. 413; Hoffman v. Smith, 61 Miss. 544; Case v. Case, 103 111. App. 177; Gilbert v. Wiebert, 87 111. App. 290; St. Clair v. Marquell, 67 N. E. (Ind.) 693; Westmoreland v. Martin, 24 S. C. 238; Oliver v. Lansing, 77 N. W. (Neb.) 802. (6) In Missouri there is a recognized distinction between partition suits brought under the statute and partition in equity. Spitts v. Wells, 18 Mo. 468; Welch v. Anderson, 28 Mo. 293; Barkhoefer v. Barkhoefer, 93 Mo. App. 373; Real Estate Savings Inst. v. Collonious, 63 Mo. 290; Whitsett v. Wamack, 159 Mo. 14; James v. Groff, 157 Mo. 402. (7) The principle of contribution does not apply to a bill in equity whose ultimate object is partition. (8) The allowance in the present case cannot be supported on the pleadings or under the evidence.

      Judson & Green, Albert Arnstein, Henry Wollman and W. R. Donaldson, Jr., for respondents.
    (1) In the exercise of its equitable jurisdiction the circuit court may divest a title and in the same proceeding order partition. Garesche v. Levering, 146 Mo. 436; Donaldson v. Allen, 182 Mo. 626. (2) Where a trustee is in actual possession of the land the circuit court will entertain a suit to declare a trust or establisia a title and also for partition. Bndde v. Rebenack,, 137 Mo. 179; Rozier v. Griffith, 31 Mo. 170; Dameron v. Jameson, 71 Mo.. 97. (3) A court of chancery, in the absence of statutory authority, cannot order a sale-of the land in a partition suit. Bispham’s Principles of Equity (6 Ed.), sec. 493; Wilkinson v. Stuart, 74 Alá. 198; Donnor v. Quartermas, 90 Ala. 164. (4) In-partition suits in this State the circuit court when exercising* its equitable jurisdiction will follow the mode of procedure prescribed by the statute for partition. Holloway v. Holloway, 97 Mo. 628; Budde v. Rebenack,. 137 Mo. 179*. (5) The circuit court may allow the attorney’s fee permitted under section 4422, Revised Statutes 1899, in a suit in equity where part of the relief asked for is partition. Padgett v. Smith, 206 Mo. 303. (6) In this State an attorney’s fee may be allowed in contested cases in partition, though it may be confined' to services rendered in partition and not on the contested issues. Padgett v. Smith, 206 Mo. 303; Liles v. Liles, 116 Mo. App. 413.
   LAMM, J

The suit was equitable partition. The-interlocutory decree found the main equitable issues for plaintiffs; ordered a receivership and accounting;determined the moieties of the cotenants; and decreed partition (with other relief not pertinent here). From that decree, cross-appeals were prosecuted (Donaldson v. Allen, 182 Mo. 626), resulting in affirmance.. When our mandate went down, the court appointed' commissioners to make partition. On their report coming in that the land was not susceptible of division in kind, an order of sale was entered and a special- commissioner appointed to make it. Sale was made and the commissioner reported his doings in executing the powers donated by the order. Thereat, plaintiffs applied for an allowance of reasonable attorneys’ fees. Proof was put in in that behalf and the court entered. an order allowing $5,000, taxing the same as costs. Thereat, a final decree and order of distribution was entered directing (among other things) the special' commissioner to pay the clerk of the court said sum for plaintiffs’ attorneys.

On due exceptions saved to the final decree and to> overruling a motion for a new trial one of defendants,. Thos. Allen, appeals.

I. A preliminary question is lodged. Thus, somewhat by way possibly of makeweight, arguendo, some-contention is made that the fee is excessive, but we-deem this phase of the case not to amount to much. This, because:

(a) In the first place, learned counsel himself" makes little of it. He guardedly selects the ground upon which he pitches his battle by precisely defining-his position, singly and laconically, as follows: “Appellant’s contention on this appeal is that no fee should have been allowed to attorneys for plaintiff below, for the reason that there is no authority under our statutes, or in equity, for such an allowance.” As we construe-it, then, the case by necessary implication hinges on. that proposition in counsel’s mind, and on no other.. This being so, we may safely allow it to proceed on that theory.

(b) , Secondly, the whole record was before the-court below and the judge deciding the point presumptively knew the character of the services rendered in-duration, zeal and ability. He presumptively knew the value of them according to custom, place and circumstance. [Eddie v. Eddie, 138 Mo. l. c. 607; Liles v.. Liles, 116 Mo. App. l. c. 425.] In this view of the matter, there is room for a most violent presumption that-the trial court did not err in gauging the quantum of' the fee.

(c) Finally, if we look even to the bare outline^ of facts as presented to us, we discern that, under the order to the special commissioner, sales were made aggregating well on to $100,000, in proceeds; and we can well see that the character and extent of the estate and titles involved and legal services rendered strictly incident to the partition itself, calling for the trained eye and judgment of counsel (from the start, to-wit, the time data for the suit were gathered and the petition drafted down through all the intermediate steps to the end, to-wit, the final order of distribution) were such that a fee of $5,000 was little enough, if any at all could be allowed.

Semble, a very ancient rule forbidding muzzling the ox that treadeth out the corn is applicable to attorneys and their fees (Reynolds v. Clark County, 162 Mo. l. c. 684), and may be profitably used here a little, with discrimination.

II. The main question is not only interesting, but fruitful, and is somewhat new to appellate courts in Missouri. It may he put in this way: In an equitable partition, as contradistinguished from a strict statutory partition (so-called), is plaintiff entitled to an allowance for attorneys’ fees to be taxed as costs and paid, pari passu?

Plaintiffs’ counsel say, Yes. Defendant’s says, No.

The evolution of the latter’s argument is as follows : Costs are the creatures of statutes. Such statutes are in derogation of the common law and to be strictly construed. Attorney’s fees are not allowed under the general provisions of statutes relating to costs. Hence, plaintiffs must put a finger on an express statute allowing such. In this instance, the partition statute (R. S. 1899, sec. 4422) limits the allowance of a reasonable attorney’s fee to those attorneys bringing a suit “under this article” — i. e., article 1, chapter 53, Revised Statutes 1899, dealing with partition of real estate. Now (he says) the suit was not brought “under this article,” but was a bill in equity invoking the jurisdiction of a court of equity as distinguished from that of a court of law in purely statutory partition. Hence, no attorney’s fee could be allowed.

Assuming the main premises true, is the point well taken and the argument sound? We think not. Because:

(1) Equitable features are everyday incidents of partition suits — for example: The allowance of payments made by one cotenant on account of the common property, as in the satisfaction of taxes, liens and the like; compelling a cotenant who has absorbed the common rents to account; adding to his pro rata share of the property the expense and outlay of one cotenant in bettering the common property by erecting valuable improvements thereon in good faith; in equalizing advancements (see 21 Am. and Eng. Ency. Law [2 Ed.], 1170, et seq.); and in divesting title, decreeing a trust or establishing title as a step incident to partition. [Garesche v. Levering Inv. Co., 146 Mo. 436; Donaldson v. Allen, 182 Mo. supra; Budde v. Rebenack, 137 Mo. 179; Rozier v. Griffith, 31 Mo. 171; Dameron v. Jameson, 71 Mo. 97; Holloway v. Holloway, 97 Mo. 628; Padgett, v. Smith, 206 Mo. l. c. 314.]

That such incidents are usually met with in partition suits is common knowledge of the bench and bar. It is within bounds to say that much the greater number of such suits are equitable in their nature. In this condition of things, it signifies something of value in the interpretation of the law, that the uniform practice, nisi, has been to allow plaintiff attorney’s fees in cases of equitable partition, and the memory of no member of this bench runneth to the contrary. Such long and uniform acquiescence by the legal profession of this State in that construction of the law (as shown by the absence of appeals on the point), may not be conclusive, but it has been held to be very good, evidence of what the law is. [Venable v. Railroad, 112 Mo. l. c. 125, and authorities cited.]

Moreover, it is impossible to see why the justice and reason underlying the allowance of attorney’s fees in one class of partition suits ought not apply to the other — unless plainly without the mandate of the written law. Why should those parties, who receive a common benefit from the labors of attorneys in effectuating an equitable partition, escape the common burden and throw upon the plaintiff the whole of it? As aptly asked by counsel, ore terms: Does justice end, where equity begins ? It is a maxim of the law that what is just and right is the law of laws [Aequum et bon/um, est lex legum].

(2) Again, it has been held without discussion, as of course, that attorneys’ fees are allowable in equitable partition. [Padgett v. Smith, supra.] The matter came here once more in a motion to allow attorneys’ fees in the Padgett case for services connected with an appeal to this court. [Padgett v. Smith, 207 Mo. l. c. 235.] We refused to allow the fee, but it was held in a per curiam that the circuit court had jurisdiction to hear evidence as to the extent of the services and their reasonable value and to- make a proper allowance therefor to be taxed as costs. While Goode, J., in Liles v. Liles, supra, spoke of that case by the by, in the opening of his opinion, as “an fiction under the. statute for the partition of land,” yet it was an equitable partition and the reasoning of that learned jurist leading up to the conclusion that fees were allowable on certain issues involved in that case may be borrowed and applied to this.

(3) Moreover, it is a maxim that equity follows the law. [1 Story, Eq. Jur. (13 Ed.), sec. 64.] Speaking to it, Judge'Story says: “It may mean that equity adopts and follows the rules of law in all eases to which those rules may in terms be applicable; or it may mean that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law.”

Accordingly, it has been held that in equitable partition the court will proceed accordingly to the statute. [Spitts v. Wells, 18 Mo. 468; Holloway v. Holloway, 97 Mo. l. c. 639.] It has been held a mooted question whether in strict equity a sale of real estate could be made in partition, but we all know the universal practice has been to follow the statute and allow such sales in equitable partition. Why, then, by analogy, may not the statutory rule allowing fees be followed with propriety?

The statute on partition contemplates that parties having a present or future, a vested or contingent interest should be made parties (secs. 4375-8); that issues of fact should be determined and the rights, titles and interests be declared (sec. 4386); that adverse claims may be decided (sec. 4389). With such broad provisions in the statute, some of them smacking of matters of equitable cognizance, we are not prepared to hold that an equitable partition (since equity follows the law) is not so far brought “under this article,” that, by the 'very language of section 4422, when illuminated by its spirit and intendment, the court may not allow a reasonable fee to the attorneys bringing the suit. Those fees should be restricted to the partition proper, as was substantially done in the case at bar, and not extended to. payment for services on incidental issues heard and determined. [Liles v. Liles, supra.]

It is our conclusion the judgment is right and should be affirmed. It is so ordered.

All concur, except VaUiani, P. Jabsent.


author: GRAVES, J.

text:
    NATHAN R. TRACY v. WALTER BITTLE, Appellant.
    Division One,
    July 3, 1908.
    1. GRAVEYARD: Common Law Dedication. In 1860 the owner of land staked off a half acre for a graveyard, the spot selected adjoining a public road, and being at that time inclosed with the fence which inclosed the farm of which it formed a part, and a gateway was made through that fence for the public to enter. In a year or two thereafter the other three sides were fenced, so that the spot was entirely cut off from the rest of the farm. The owner’s grandchild was buried there in 1860, and the owner himself in 1868, and prior to 1879 ten other members of his family, and their bodies still remain there. The public had the privilege of burying there and did bury there until eighteen or twenty graves appeared prior to 1879, when a new cemetery was laid out in the neighborhood and several of the bodies were removed to it. In 1889, when defendant’s father bought the farm, with no reservation in the deed, the fences still existed around the graveyard, and remains of the old fence still existed at the time of the trial, notwithstanding defendant had pastured his stock over the ground and cleared the brush therefrom. Every owner of the land up to the time defendant’s father bought in 1889 recognized that the graveyard was a public burying ground. Held, to establish a common law dedication to the public of the half acre as a public burying ground, and to have been accepted and used as such.
    2. -: -: Public Use. The use of grounds for burial purposes is a public use, and there may be a common law dedication of such grounds to such use. Nor to constitute a dedication of land for a graveyard is it necessary that any conveyance be made, or that there be any person capable of taking a conveyance otherwise than in trust. Proof of such dedication may consist of acts going to show that the owners intended to donate the use for a public purpose and that the public had accepted and used it for that purpose.
    3. -: -: -: Notice. A reservation in one of the deeds in defendant’s chain of title of the small tract “as a public burying ground,” already established on the farm, was such a notice as would at least put defendant on his inquiry.
    4. -: -: Limitations. Ten years’ adverse possession and use of a tract of ground dedicated to a public or charitable use for burying the dead, will not give, the owner of the fee the right to interfere with such use. The Statute of Limitations does not apply to such a tract, and is no defense to an injunction to enjoin the owner of the fee from desecrating the graveyard and the graves therein.
    5. -: -: Desecration: Injunction: Parties. Injunction is a proper remedy to enjoin and restrain the owner of the fee from desecrating a graveyard dedicated to public use, and a plaintiff who has near relatives buried therein has a peculiar right to maintain the suit.
    6. -: -: Abandonment. A graveyard is none the less such because for a quarter of a century no one has been buried there. Until nothing shall remain to distinguish it from the common earth around and it becomes wholly unknown as a graveyard, can it be said to be abandoned as a graveyard.
    7. -: -: Fee: Easement. The right of the public in the tract of ground dedicated to public use for a graveyard is somewhat in the nature of an easement, and the fee is in the owner of the farm of which it was a part at the time the dedication' was made, and when it is abandoned as such the use and right to possession return to him. But so long as it is kept in condition to be known and is known as a burying ground, the owner of the fee has no right to the possession. The public has the beneficial use thereof, and he holds the fee in trust subject to that use. Hence, a decree that says he “has no right thereto” is too broad; he has a reversionary interest.
    Appeal from Grundy Circuit Court. — Hon. Geo. W. Wanamaker, Judge.
    Modified and affirmed.

      Hall & Hall for appellant.
    (1) Injunction will not lie to prevent defendant, from continuing in possession nor to restrain Mm from preventing plaintiff from fencing or exercising any other control over the land. Smith v. Jameson, 91 Mo. 13; Echelkamp v. Schrader, 45 Mo. 505; Weigel v. Walsh, 45 Mo. 560; Crenshaw v. Cook, 65 Mo. App. 264; Graham v. Womach, 82 Mo. App. 624; PovMl v. Canaday, 95 Mo. App. 513; Jerome v. Ross, 7 Johns. Ch. 315; Carney v. Hadley, 32 Fla. 344; McGregor v. Min. Co., 14 Utah 47; Laeassagne v. Chapuis, 144 U. S. 119. (2) If this is a public graveyard, as alleged, then the plaintiff cannot maintain this action; the title is in the public, and not in plaintiff. Smith v. Gardiner, 12 Ore. 221; Gause v. Perkins, 3 Jones Eq. 178; Bolster v. Catterlin, 10 Ind. 118; Jerome v. Boss, 7 Johns. Ch. 334; Cooper v. Hamilton, 8 Blackf. 378; Millan v. Ferrell, 7 W. Ya. 229; Smith v. Pettingill, 15 Yt. 84. (3) Although James B. Tracy may have staked off the land in controversy for a graveyard and permitted the public to use it as such, this at most gives but a license or privilege to be used only so long as the place continued to be used as a burial ground. 5 Am. and' Eng. Ency. Law (2 Ed.), 789; Page v. Symonds, 63 N. H. 17, 56 Am. Bep. 481; Craig v. First Presbyterian Church of Pittsburgh, 88 Pa. St. 42; Windt v. German Reformed Church, 4 Sandf. Oh. 471. A grant of a lot in a cemetery is said to be analogous to a grant of a pew in a meeting house and the right of burial in a public burying ground in some respects resembles the right of pew tenancy. Jones v. Towne, 58 N. H. 462; Sohier v. Trinity Church, 109 Mass. 21; Kincaid’s Appeal, 66 Pa. St. 411. (4) If plaintiff had any remedy at all for the acts complained of, it was not by injunction, but trespass on the ease. Kincaid’s Appeal, 66 Pa. St. 411, 5 Am. Rep. 380; Craig v. First Presbyterian Church of Pittsburg, 88 Penn. St. 42, 32 Am. Rep. 423; Smith v. Thompson, 55 Md. 5, 39' Am. Rep. 409; Meagher v. Driscoll, 99 Mass. 28, 96 Am. Dec. 759; Bassemer, Land and Imp. Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26. (5) Although James B. Tracy may have measured off and dedicated the land in controversy as a public graveyard, it was without a deed; the dedication only created a license to bury in the public, which was restricted to be the right of burial, the fee remained in the owner and passed to defendant by the several conveyances. Rutherford v. Taylor, 38 Mo. 315; Campbell v. Kansas City, 102 Mo. 326; Kansas City v. Scarritt, 159 Mo. 471. (6) Even, though plaintiff ordinarily might have had some right in an action in trespass for the disturbance of the graves of his deceased relatives, such right was by reason of his kinship and inheritance alone. Jackson v. Congregation of Children of Israel, 108 Ga. 518; Day v. Beddingfield, Noy 104; Spooner v. Brewster, 3 Bing. 136; Sabin v. Harkness, 4 N. H. 415; Matter of Brick Presbyterian Church, 6 Edw. Ch. 155; Mitchell v. Thorne, 134 N. Y. 536; Pierce v. Proprietors, etc., 10 R. I. 227. (7) Whatever right or interest plaintiff or public may have in the premises claimed had been barred by the Statute of limitation long before commencement of this suit. R. S. 1899, secs. 924, 4262, 4266; Harbison v'. School District, 89 Mo. 184; Ozark Plateau Land Co. v. Hays, 105 Mo. 151; Heinemann v. Bennett, 144 Mo. 113; Benne v. Miller, 149 Mo. 236; Stevens v. Martin, 168 Mo. 410; Kansas City v. Scarritt, 169 Mo. 483; Brewing Co. v. Payne, 197 Mo. 429.

      8. S. Kelso} Harter & Knight and O. N. Gibson for respondent.
    (1) The statutory method of dedicating lands to public uses has never been held to be exclusive; common law dedication is valid and effectual for every purpose, since the statute, as before. Campbell v. Kansas City, 102 Mo. 326; Baker v. Yanderburg, 99 Mo. 378; Rose v. St. Charles, 49 Mo. 509; McKee v. St.' Louis, 17 Mo. 184; Cramer v. Allen, 3 Mo. App. 545. (2), When an unequivocal offer by the owner and acceptance by the public appear, the title passes, and no writing or other formalities are necessary, nor is any definite period of user by the public required. Railroad v. Railroad, 190 Mo. 254; McGrath v. Nevada, 188 Mo. 107; Pierce v. Chamberlin, 82 Mo. 618; Stacy v. Miller, 14 Mo. 478; Board of Regents v. Painter, 102 Mo. 464; Beitz v. St. Louis, 110 Mo. 618; Bauman v. Boreekeler, 119 Mo. 189. (3) It is only when the public claims premises by adverse possession, alone, without assent by the owner, that adverse user must be shown to have continued for the statutory period. Field v. Mark, 125 Mo. 502; Rosenberger v. Miller, 61 Mo. App. 422; Railroad v- Railroad, 190 Mo. 254; McGrath v. Nevada, 188 Mo. 107. (4) “A cemetery is none the less a graveyard because further interment in it becomes impossible. It only loses its character as a resting place of the dead when those already interred are exhumed and removed.” Kansas City v. Scarritt, 169 Mo. 485; Goode v. St. Louis, 113 Mo. 257; Campbell v. Kansas City, 102 Mo. 226; State v. Culver, 65 Mo. 607; 6 Cyc. 715. (5) Title by adverse possession cannot be acquired in lands dedicated to public uses. R. S. 1899, sec. 4270; Williams v. St. Louis, 120 Mo. 403; Railroad v. McGee, 75 Mo. 522, affirmed 115 U. S. 469; St. Louis v. Railroad, 114 Mo. 13; Brown v. Carthage, 128 Mo. 10; Railroad v. Smith, 170 Mo. 327; Railroad v. Baker, 183 Mo. 312; Railroad v. Totman, 149 Mo. 657; City of Columbia v. Bright, 179 Mo. 441. (6) And land dedicated to the public for burial purposes is within this statute. Contitution, sec. 6, art. 10; Campbell v. Kansas City, 102 Mo. 345; State ex rel. v. Wesleyan Cemetery, 11 Mo. App. 570. (7) Injunction is the proper and only adequate remedy for one who is injured in his individual rights by the obstruction of a public use. Longworth v. Sedevic, 165 Mo. 221; Cummings v. Trans. Co., 156 Mo. 28; Monroe v. Crawford, 163 Mo. 178; Corby v. Railroad, 150 Mo. 457; Sherlock v. Railroad, 142 Mo. 172; Downing v. Dinwiddie, 132 Mo. 92; Palmer v. Crisle, 92 Mo. App. 510; Shepherd v. May, 83 Mo. App. 272; Dubach v. Railroad, 89 Mo. 483; Lockwood v. Railroad, 122 Mo. 86; Lytle v. James, 98 Mo. App. 387; Downing v. Corcoran, 112 Mo. App. 345.
   GRAVES, J.

The petition in this canse, which is one for injunctive relief, is quite long, hut the purport of the action is to enjoin and restrain the defendant from the desecration of a public graveyard, and the graves therein. The plaintiff has a number of immediate relatives buried in the graveyard in dispute, and in 1905, went to the premises with material to replace the fences around it, when he was prevented from so doing; by the defendant who owns the body of land from which the graveyard was originally carved and taken. For some time the defendant had been pasturing his stock on this graveyard, along with the other land owned by him. The evidence tends strongly to show the following facts: That in 1860 one James B. Tracy, the father of the present plaintiff, was the owner of the north half of section 10, township 62, range 24, Grundy county, Missouri. In the spring of 1860 James B. Tracy and his son staked off about one-half acre of this land for a burying ground or graveyard. ' The spot selected adjoined a public road. The outside fences of the farm, which had been previously built in 1859, formed the fence on one side, and a gate-way was made for the public to enter. In a year or two thereafter the other three sides were fenced so that it was entirely cut off from the remainder of the farm. The first interment was the child of plaintiff’s brother in February, 1860. From that time on some ten members of the James B. Tracy family were buried there, the last being a daughter in 1878 or 1879. These bodies, including that of James B. Tracy, who died in 1868, are yet on this spot of ground. Anybody who desired used this graveyard. Others buried there until some eighteen to twenty graves appeared. One outside of the Tracy family was buried there shortly after the Tracy girl in 1878 or 1879'. The evidence shows that' the public had the privilege to bury there and did bury there until about this last-mentioned date. About this time a new cemetery was laid out in the neighborhood known as the Martin graveyard. This one was called the Tracy graveyard. Several of the bodies buried in the Tracy grounds were removed to the Martin grounds. In 1865 Tracy and wife deeded the farm by warranty deed to one Naglespaugh. In 1868 Naglespaugh and wife conveyed the farm by warranty deed to Adam Briegle, but the deed contained these words “except one-half acre reserved for a public burying ground.” In 1875 Adam Briegle and wife deeded, without reservation, to their son Valentine Briegle. In 1888 Valentine Briegle reconveyed to Naglespaugh, and in 1889 Naglespaugh conveyed to Henry Bittle, father of the present defendant. In 1896 Bittle conveyed to his two sons, Walter and Alexander, and in 1899' Alexander conveyed his half interest to Walter. No reservations appear in any of the deeds except the one mentioned herein-above.

Defendant by answer claims title to this half acre of ground not only by this chain of title, but further pleads the ten-year Statute of Limitations. The evidence tends strongly to show that at the time the elder Bittle purchased the land the fences, although out of repair, to a considerable extent, were yet around this ground. That they remained there for some three or four years thereafter. Defendant’s evidence tended to show that the graveyard had been in his enclosure, unfenced, and used by him, under claim of title thereto, for more than ten years. It also tended to prove that no work had been done on the graveyard by the Tracys or the public for twelve or more years. Trial was had before the court. Defendant asked a number of declarations of law, some of which were given and some refused, but this being an equity case we shall not. burden this opinion with the same.

The trial court, after hearing all the evidence, found that in January, I860, James B. Tracy, father of plaintiff, set apart and dedicated to public use the half acre (fully describing it in the judgment and finding) for a public burying ground. The finding and judgment then proceeds in this language: “That the same had ever since been used for a burying ground and several bodies, including a number of plaintiff’s relation, buried therein until about the--day of April, 1905, at which time plaintiff and others entered upon said land with material and was proceeding to inclose same with a fence, at which time the defendant, who owned the lands of which said tract of land so dedicated had formed a part, forbid and prohibited the plaintiff and said others from fencing the same, claiming the same as his own and denying the right of plaintiff and the public to use the same as a burying ground. It is therefore ordered, adjudged and decreed by the court that said ground is a public burying ground, and that defendant has no right thereto and that he and all persons claiming under or through him be and they are forever enjoined and prohibited from preventing the improvement or use of said land by plaintiff or the public as a burying ground. It is further ordered and adjudged that the plaintiff'have and recover of the defendant his costs in this suit expended taxed at--dollars and that he have therefor execution.”

From this judgment, being unsuccessful in his motion for new trial, the defendant appealed. Points made and the contentions of parties,-so far as may be required, will be noted in the course of the opinion.

This sufficiently states the case for the present.

I. To our mind the gist of this action is to restrain a desecration of a graveyard and the graves therein; and incidentally the title to the.property is involved. The case may be shortened by determining the interests of the parties in and to this plot of ground first, and with that end in view we discuss that question first. That old man Tracy staked off this tract of land for public use as a burying ground in 1860, is abundantly shown. That the public, outside of the Tracy family, did so use it from 1860 to 1878 is thoroughly established. That it was fenced off to itself in 1889, when the elder Bittle bought the place, and for several years thereafter, is well established. That the remains of the old fence, marking the line, existed at the date of trial, is shown, notwithstanding the fact that defendant had pastured his stock over the ground, and cleared the brush therefrom. That every owner of the premises up to the time of the Bittles recognized that this ground in dispute was a public burying ground is thoroughly shown. The evidence does not stop by showing that Tracy merely permitted certain members of the public to bury there, but it goes further and to the extent of showing that the ground was and could be used by the public generally, and to this end was fenced to itself, with a gateway from the public highway into the graveyard. There is ample evidence in this record to show a common law dedication of this tract of ground to the public as a public burying ground, and that it was accepted and used by the public. The leading questions then are, can a public graveyard be established by a common law dedication, and if so can adverse title thereto be acquired under the Statute of Limitations, so long as the remains of the dead are there ? Incidentally and along with these are the questions as to whether or not this is a proper action and whether or not the evidence shows an abandonment of the ground used as a graveyard. Of these in their order.

II. That the use of grounds for burial purposes is and may be a public use we take it is unquestioned. In 5 Am. and Eng. Ency. Law (2 Ed.), 784, it is said: “Cemeteries are recognized in the United States as among the purposes for which lands may be dedicated to the public. And it is held that upon dedication the owner is precluded from exercising his former rights over the land, and the public right of exclusive enjoyment continues until the place loses its identity as a burying ground.”

Can there be a common law dedication of lands to such use in this State? "We think so. The general "rule is stated in 6 Cyc. p. 714, thus: “Land may be dedicated to the public for use as a cemetery. And one who has dedicated land as a public cemetery, the dedication having been accepted, is estopped from denying it. To constitute a dedication of land for a cemetery it is not necessary that any conveyance be made, or that there be any person capable of taking a conveyance otherwise than in trust. A dedication may arise out of the conduct of the owner and the acts of those who rely thereon.”

In this State in the case of Campbell v. Kansas City, 102 Mo. 339, Mastín, Special Judge, uses this language: “It is clear from the testimony in the record that the original proprietors never devoted this land to the use of a graveyard by any instrument of writing, in the form of deed or plat, sufficient to comply with the requirements of the law relating to the transfer of interests in real estate. It, therefore, follows that the legal fee must remain still in the original proprietors or their legal representatives. But the actual use of land may be devoted to public purposes without deed or writing of any character. Proof of such devotion may consist of acts in pais going to show that the owners intend to donate the use for a public purpose, and that the public has accepted and used it for that purpose. The estate thus parted with does not extend beyond the use of the land, leaving the technical legal fee in the donors, which, however, must he held by them for the donated use as long as that use continues. While the plat of 1847 could not operate to pass the fee simple of this land to the public, or to any trustee of the public, it constitutes an important and controlling fact in the evidence to establish a dedication of the use of the land as claimed by the defendant. The donation of the land was marked on the original plat of 1847, which was made by one of the proprietors, and was used by him at the public sale which took place soon thereafter. The public accepted the use thus indicated by burying their dead on the land' for about ten years. The plat and the use • of the land, as indicated by the plat, were acquiesced in by all the proprietors. These facts constitute the best evidence possible of a dedication in pais to the public, which dispenses with the necessity of written instruments, as well as the existence of a grantee or trustee. Such I understand to be' the established law of the State on the subject of dedications of land to public use. [Becker v. St. Charles, 37 Mo. 13; Putnam v. Walker, 37 Mo. 600; Rutherford v. Taylor, 38 Mo. 315 ; Price v. Thompson, 48 Mo. 365; Reid v. Board of Ed., 73 Mo. 304.] ”

In the case at bar we do not have the plat, but we do have the proprietor staking off and fencing the ground, and putting in a gate on that side which adjoined a public road. This tends to show that it was open to the public. Had he intended it for a private graveyard, he most likely would have placed the gate within his general enclosure.

A very similar cáse to the one at bar, although not so strong in facts, is the case of Davidson v. Reed, 111 Ill. l. c. 170, where the court said: “James Mc-Eniglit originally owned the southwest quarter of section 21, township 10, range 10, east, in Cumberland county. The burying ground is located •near the southeast corner of the land. As early as 1844 McKnight buried a child on the land in question, and since that time it has been known as the ‘McKnight Graveyard,’ and has been used by the neighborhood as a burying ground. While McKnight owned the land he buried a wife and two children there. Reed testified that McKnight told him ‘he expected the neighbors would want to bury there, as we had commenced it.’ He also testified that he and McKnight talked of staking off and fencing the ground, but they neglected to do it. McKnight sold the land to Rhodes, and while Rhodes owned the land the dead were buried there, as before. He sold to Scott, and Scott to Collins, and Collins sold to the defendant. Collins, while he owned the land, buried a child in the graveyard. Indeed, from 1844 the land in question has been known, used and recognized by the different owners and the public as a public burying ground. While Collins owned the land he said if the people in the neighborhood would clear and fence it, he would give them a half acre. Rhodes also, as he testified, offered to give the graveyard if the people would fence it. It was also proven that the defendant offered to give the land occupied by the graves if the people would fence it. The only conclusion to be reached from all the evidence is, that McKnight, when he owned the land, established a graveyard, and intended to dedicate to the public the particular tract in question, to be used as a place for the burial of the dead. It is true that when he sold the land no reservation was made in the deed, but the subsequent purchasers all had notice of the existence of the burying ground, and purchased subject to the rights the public bad acquired in and to the property. In the case of Cincinnati v. White’s Lessee, 6 Pet. 431, it is said that all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. The assent of the owner, McKnight, that the land ■should be appropriated for the -burial of the dead, is ■clear and manifest. That the public accepted and used the land for the public purpose for which it was designated by the owner, is also beyond dispute.”

In the ease at bar one of the deeds of record in defendant’s chain of title contained a reservation, so that neither he nor his grantor, the father, can well disclaim such a notice as would have at least put them upon inquiry.

Fully as strong and pointed as the foregoing cases are the following: Baker v. Vanderburg, 99 Mo. l. c. 393; Boyce v. Kalbaugh, 47 Md. 334; Hayes v. Houke, 45 Kan. 466; Redwood Cemetery Assn. v. Bandy, 93 Ind. 246 ; Pierce v. Spafford, 53 Vt. 394; Hunter v. Trustees, etc., 6 Hill (N. Y.) 407.

In the present case we conclude that there can be a valid common law dedication and that the facts amply show that Tracy and all of his successors in the title, until the title reached the Bittles in 1889, consented to and acquiesced in the use of the ground by the public as and for a public burying ground, and that the same was accepted and used by the public as such, which acts make a good common law dedication. [Baker v. Vanderburg, and other cases, supra.]

III. The evidence is not so clear upon the question of adverse possession of ten yeárs by defendant. Certain admissions of his were proven tending to show that the adverse possession might not have extended back more than two years.' But conceding that defendant, three or four years after the. elder Bittle purchased in 1889, did remove the remains of the old fences and cleared off the brush and thereafter used the ground in question as he used his other ground, and claimed title thereto, yet this does- not deprive the public of the beneficial use thereof for a public purpose consistent with the dedication.

In other words, the dedication of the land was for ■a public or charitable use, and the Statute of Limitations will not assist the defendant. Our statute, Eevised Statutes 1899', section 4270 reads: “Nothing ■contained in any Statute of Limitations shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.” This property falls within the purview of that statute. In discussing this question in the Campbell case, supra, we said: “Land may be dedicated to pious and charitable purposes, as well as for public ways, commons and other easements in the nature of ways. [Pearsall v. Post, 20 Wend. 111.] Now it seems to us that the dedication in this case falls fairly enough within the general definition of charitable and pious purposes. [Commissioners v. Church, 30 Kan. 620.]”

That such lands are of that character is fully recognized by section 6, art. 10, of the Constitution, where they are exempted from taxation. We conclude therefore that the defendant’s plea of the Statute of Limitations can not avail him in this case. [See Williams v. St. Louis, 120 Mo. 403; Brown v. City of Carthage, 128 Mo. 10; Railroad v. Baker, 183 Mo. 312; City of Columbia v. Bright, 179 Mo. 441.]

IY. Is this the proper action? Is the plaintiff a proper party to maintain it? These questions are both pressed for our consideration. The general rule, supported by a long list of adjudicated cases, is thus stated in 6 Cyc., p. 720: “While there is no light of property in a dead body in the ordinary sense of the term, it is regarded as property so far as to entitle the next of kin to legal protection from unnecessary disturbance and wanton violation or invasion of its place of burial. Equity has jurisdiction to enjoin an unwarrantable disturbance or interference with a burial ground or-the graves therein.”

In the Davidson case, supra, which was an injunction as this, the Illinois court said: “It has been suggested that the bill cannot be maintained in the names of the two complainants. The complainants were residents of the neighborhood. They had friends buried in the burying ground, and were thus interested in preserving, for themselves and the public, the burying ground as it had been established, and we are of opinion that they had the right to sue in behalf of themselves and others having a like interest. [Beatty & Ritchie v. Kurtz, 2 Pet. 585.] The bill was brought, and in our judgment, properly for the protection of the rights of the people in that particular locality, and we perceive no reason why it may not be maintained in the names of a part for the benefit of all, as well- as if all directly interested had joined in the bill.”

In the Boyce case, supra, the Supreme Court of Maryland has well said: ‘ ‘ The complainants, who are relatives of the dead deposited therein, may invoke the remedial power of the court, to prevent the desecration of the ground where repose the ashes of their kindred. The material facts of this case, both as to the' subject-matter and the competency of the complainants to maintain their suit, are analogous to the case of Beatty & Ritchie v. Kurtz, decided by the Supreme Court of United States in 2 Peters 566. It was there held not to be a case for the redress of a mere private trespass: the property dedicated to public and pious uses threatened with desecration — the sepulchres of the dead with violation — the sentiment of natural affection of the surviving kindred and friends of the deceased to be wounded, the memorials erected by piety and love removed, so as to leave no traces of the last home of their ancestors to those visiting the spot in future generations, were acts that could not be redressed'by the ordinary process of law. The remedy must be sought in the protecting power of a court of equity, operating by injunction to preserve the asylum of the dead and quiet the just and natural sensibilities of the living.”

The plaintiff having near relatives buried in this graveyard has a peculiar right in the maintenance of this public use, and in preventing an obstruction to the public use. In such case he can maintain the action and injunction is the remedy. [Longworth v. Sedevic, 165 Mo. 221.]

That citizens having an interest in the maintenance of a public use can maintain a suit to enforce their rights is fully recognized in the recent case of State ex rel. Titus v. Railroad, 206 Mo. l. c. 258, and cases cited.

Y. Has there been an abandonment of this graveyard? We think not. The idea of abandonment has been most elegantly expressed by Beardsley, J., in Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) l. c. 414, wherein he says: “What right, if any, may hereafter arise in favor of those who can make titles from the original owners, it is not necessary now to inquire. The land is still a public graveyard, inclosed, known, and recognized as such. When these graves shall have worn away; when they who now weep over them shall have found kindred resting places for themselves; when nothing shall remain to distinguish this spot from common earth around, and it shall be wholly unknown as a graveyard; it may be that some one who can establish a good ‘paper title,’ will have a right to its possession; for it will then .have lost its identity as a burial ground, and with that, all right founded on the dedication must necessarily become extinct.”

In Kansas City v. Scarritt, 169 Mo. l. c. 484, 485, a case wherein the city had passed an ordinance forbidding further interments in a burying ground, on the «question of abandonment, Sherwood, J., tersely said:

“This contention, as will be observed, assumes that the mere prohibition of fntnre burials in itself worked an abandonment, but there can be no such magic in the simple declaration of a legislative intent, especially when it is not accompanied by any act of performance, or any other act of notification, as above indicated, to the reversionary owners. A cemetery is none the less a graveyard because further interments in it become impossible. It only loses its character as a resting place of the dead when those already interred are exhumed and removed. Notwithstanding the ordinance of 1857, the graves were undisturbed until 1866, and not until 1878 were all of the bodies removed from the premises. ’ ’

In the ease at bar most of those buried there are yet there. It is true that for some years no new interments have been made, but it is still the resting place of the dead. To this plaintiff and others sacred memories are awakened in viewing the spot. They cluster around the little half-worn mounds there. It is true that for some years this ground has not been kept in a condition commensurate with these memories. The vicissitudes of life sometimes may have been such as, for awhile, to make them forget these sacred memories, but such forgetfulness does not authorize the desecration of the graves of their loved ones, by strange hands. They have a right to return to the spot and, as it were, bury their forgetfulness, and do homage to their sacred memories, by placing these resting places in proper and appropriate condition and if there is a public burying ground, as in this case, no strange hand can forbid them.

Under the facts and the law this graveyard has not as yet been abandoned.

YI. Although this is a public burying ground, and although it has not been abandoned, yet the decree in this case is too broad. This decree says “that the defendant has no right, thereto” and in this the chancellor went a step too far. The public use was created by common law dedication and not by deed. In such case: the right of reverter must be considered. In 5 Am. and Eng. Ency. Law (2 Ed.), 797, the text-writer says: “"Where lands has been dedicated to cemetery purposes, and there has been a lawful and effectual abandonment of the cemetery as such, the land will revert to the original owner. But where lands are conveyed absolutely, and in fee simple, there will be no resulting claims, although abandoned for cemetery purposes. ’ ’

There is thus drawn a distinction between lands-conveyed by deed for a valuable consideration, and lands merely dedicated to a public use. In the latter-class of cases, if there comes a time when the bodies are all removed, or when by other conditions a clear abandonment of the graveyard is made apparent, then the right of the public, which is somewhat in the nature of an easement, ceases, and the land reverts to the-original owner or his grantees. By mere ceasing to-.make further interments does not abandon the graveyard, as we have seen, so long as it is kept in condition to be known and is known as a burying ground. The defendant in this case has no right to the possession of these grounds so long as they are kept and maintained as a burying ground. The public has the-beneficial use thereof. The defendant has a reversionary interest. He holds the fee subject to the use aforesaid. The finding and decree should be modified in accordance with these views, and we will and do so modify said judgment here, in accordance with the views-herein expressed.

The judgment so modified is affirmed.

All concur, except Valliant, P. J., absent.