text:
    KANSAS CITY v. EDWARD E. HOLMES, Appellant.
    Division One,
    April 8, 1918.
    1.SIDEWALKS: Ice and Snow. A city has power, under the Constitution of Missouri and appropriate charter ability, through the medium of penal ordinances, to require each owner to remove snow and ice from the public sidewalk in front of his urban property.
    2.-: -: Inapt Constitutional Provisions. Neither Section 4 of Article 2 of the Constitution, providing that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry, nor Section 21 of the same article, providing that private property shall not be taken or damaged for public use without just compensation, nor Section 31 of the same article, providing that there cannot be in this State either slavery or involuntary servitude except as punishment for crime, has any reference or relation to the validity of an ordinance requiring the owner of abutting property to remove ice and snow from the sidewalk and fixing a moderate fine for failure to do so.
    3. POLICE POWER: Comprehensiveness. The police power does, not confer on the whole people, represented by the lawmaking branch of the government, authority to control rights which are purely and exclusively private; but it is the power, inherent in every government, to regulate the conduct of citizens toward each other in such a way that all may exercise that measure of liberty of action consistent with the welfare and freedom of others. It includes the power to establish laws requiring each citizen to so conduct himself, and to so use his property, as not unnecessarily to injure another.
    4. -: Removal of Snow and Ice: Benefit to Abutting Owner: Public Convenience. The same governmental principle by which the Legislature may construct sidewalks and reconstruct and repair them when they have fallen into decay, by charging the expense as a tax against the abutting property, applies with equal force to the compulsory removal by the owner of ice and snow therefrom. But it does not rest wholly upon the special benefit conferred; the matter of public convenience, whic¿ all persons must consider in the use of their property, is also an element in the imposition of the burden. The right to impose the burden is an incident to the exercise of the police power by which urban conditions and values are created.
    5. -: -: -: Equality of Burden. It is not necessary to the validity of the exercise of a police power that it distribute the burden imposed with mathematical certainty. To compel each owner of property abutting on a street to remove the ice and snow from the front sidewalk is a distribution of the burden according to public convenience and justice.
    Appeal from Jackson Criminal Court.- — Hon. Ralph 8. Latshaw, Judge.
    AFFIRMED.

      Gooh & Gossett for appellant.
    (1) It is an infraction of the constitutional right to life, liberty and the enjoyment of the gains of a person’s own industry, to compel himi to shovel, or to hire to he shoveled, snow off a sidewalk in a public street which is under the exclusive control of the city, when the snow got there by falling out of the clouds in the course of nature and without any act of omission or commission, or intent of defendant. The city has conr-plete and exclusive control of its streets. Sec. 1, art. 3, Cl. 11, Kansas City Charter (1909, p. 83); Sec. 9752, R. S. 1909. It is the city’s duty to keep its streets, including sidewalks, in reasonably safe condition for travel —-a governmental duty — and not a matter of police regulation, and therefore cannot be shifted under a claim of police regulation. Jackson v. Railway, 157 Mo. 621; Beck v. Brewing Co., 167 Mo. 195; Ford v. Kansas City, 181 Mo. 137; St. Louis v. Allen, 53 Mo. 44. (2) It is unconstitutional deprivation of property without due process of law for a city having exclusive control of its streets, including sidewalks, as Kansas City has, to compel a person by sentence of fine or imprisonment, or both, to remove snow falling naturally upon one of such sidewalks, even though it is in front of such person’s property, unless all citizens are compelled to work generally on the streets irrespective of place on which work is to he done or property ownership. St. Louis v. Allen,- 53’ Mo. 44; St. Louis v. Speigel, 75 Mo. 145; Town v. Norman, 72 Mo. 380; Elting v. Hickman, 172 Mo. 237; St. Louis v. - Dreisoemer, 243 Mo. 217; Barber Co. v. St. Joe, 183 Mo. 455. His other property might he taken and sold under process to pay this fine if he may be so fined. This may not he constitutionally done hy any court. St. Louis v. Allen, 53 Mo. 44; Barber Co. v. St. Joe, 183 Mo. 451. '(3) It is also- a plain species of involhntary servitude to compel a property owner, merely because he is such, to shovel snow naturally falling on a sidewalk in a public street of Kansas City, such compulsion being sought to be enforced by fine or imprisonment, or both, and not applying to all citizens irrespective of property owned and -residence. Authorities supra. » Such ordinance is unreasonable, unjust and void unless it applies practically to at least all able-bodied citizens, irrespective of property ownership. St. Louis v. Allen, 53 Mo. 44; Town v. Norman, 72 Mo. 380'; St. Louis v. Roche, 128 Mo. 542; Elting v. Hickman, 172 Mo-. 237; Kansas City v. Whipple, 136- Mo. 475-. (4) It is also unconstitutional to compel an owner to pay for the removal of snow falling naturally upon the sidewalk in a public street in Kansas City, in that it is thereby taxing him without uniformity of taxation for the removal of such snow. Gridley v. Bloomington, 88 Ill. 554; Chicago v. O’Brien, 111 HI. 532; State v. Jackman, 69 Nl H. 318; St. Louis v. Spiegel, 75-Mo. 145; Kansas City v. Whipple, 136' Mo. 475. Non-resident property owners cannot be guilty or fined or imprisoned under this ordinance unless happening to be in Kansas City. Snow does not fall and remain upon sidewalks to the same extent in varying though adjoining locations, and the burden of removal varies with the location. It may fall and remain to the same extent in front of valuable as in front of cheap property of the same dimentions and the man rich in personalty, but with no realty, travels the street with same benefit, so far as the snow is concerned, as the landowner. Snow and ice are matters of mere temporary inconvenience or convenience in travel, and removal of the same impossible of any pecuniary benefit to the realty or to 'the owner of vacant realty more than io the ordinary traveler on the street. Í5) Although Kansas City has pow»” under its charter to require by special tax bills property owners to pay for special improvements on the sidewalk or street thereon without regard to its value, nevertheless, all such special tax bills are based upon the theory of special benefits accruing and Kansas City is not by its charter given authority to issue special tax bills for such temporary care of streets as the removal of snow. And compelling the owner by penalty of fine or imprisonment to remove snow from the sidewalk in the street over which the city has exclusive control is a species of taxation not justifiable upon the theory of special benefits, and necessarily it is disproportionate to the value of the property, and also unconstitutional for that reason. Kansas City v. O’Connor, 82 Mo. App. 655-660; St. Louis v. Allen, 53 Mo. 44; Barber Co. v. St. Joseph, 183 Mo. 451.

      J. A. Hamfeld, B. N. Mosman and A. F. Smith for respondent.
    A city has the right to require by penal ordinance that each property owner clean the snow from the public sidewalk in front of his property. Norton v. St. Louis, .97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 96; F!ord v. Kansas City, 181 Mo. 147; Goddard, Petitioner, 16 Pick. (33 Mass.) 504; Carthage v. Frederick 122 N. T. 268; State v. McCrillis, 28 R. I. 165; State v. McMahon, 76> Conn. 105; Helena v. Kent, 32 Mont. 279; Lincoln v. Janesch, 63 Neb. 707; McQuillin on Mun. Corp., sec. 924; Dillon on Mnn. C:orp. (5 Ed.), sec. 713; Prennd on Police Power, sec. 620.
   BROWN, C.

— This case was instituted in Municipal Court Number Two for Kansas City, Missouri, upon complaint of the city counselor, charging the defendant with a violation of sections 563 and 626 of the Revised Ordinances of the city of 1909, in that he unlawfully failed and neglected to remove from the sidewalk, in front of property owned by him, ice and snow which obstructed and rendered the sidewalk dangerous, inconvenient and annoying to persons residing in the neighborhood traveling over the sidewalk.

The defendant was found guilty, and a fine of five dollars assessed. An appeal was taken to the criminal court for Jackson County, where upon trial he was again found guilty and the same fine assessed and judgment entered accordingly. Motions for a new trial and in arrest of judgment were overruled and in due time this appeal was taken.

The cause was submitted in the criminal court without a jury upon an agreed statement of facts, by which it was stipulated that defendant was the managing officer of the corporation which owned the land abutting upon the sidewalk on which the snow in question had fallen and lay, and that he made no point that he did not occupy the position of owner; that at the time mentioned in the complaint there was a fall of snow upon the sidewalk rendering it dangerous, inconvenient and annoying to persons walking thereon; and that he did not remove the snow, as charged in the complaint; that the sidewalk, street and abutting property were within the limits of the city; that the sole question involved in the case was and is the validity of the city ordinances on which the complaint was founded. The validity of the ordinances was challenged in the trial court and upon this appeal on the ground that they are in conflict with the provision of Section 4 of Article 2 of the Constitution of the State which declares that all persons have the natural right to life, liberty and the enjoyment of the gains of their own industry; also with Section 21 of the same article, providing that private property shall not be taken or damaged for public use "without just compensation; also with the provision of Section 30 of the same article that no person shall be deprived of life, liberty or property without due process of law; also with the provision of Section 31 of the same article that there cannot be in this State either slavery or involuntary servitude except as punishment for crime; also with Section 3 of Article 10 of the Constitution, which provides that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same; also with Section 4 of the last-mentioned article, providing that property subject to taxation shall be taxed in proportion to its value.

Sections 563 ánd 626 of the City Ordinances are as follows: ,

“Ice, Snow, Etc — Repairs—It shall be the duty of all persons, owning or occupying any real property, fronting upon any street, to keep the sidewalk, curbing and guttering in front and alongside of such property and on the same side of the street in good repair and order, and to clean the same, and remove from any such sidewalk, curbing and guttering all ice, snow, earth or other substance that in- anyways obstructs or renders the same dangerous, inconvenient or annoying to any person.
“Penalty. Any person, firm or corporation failing, neglecting or refusing to comply with any provision of this chapter shall, on conviction, where no other penalty is provided, be fined in any sum not less than one nor more than five hundred dollars.”

Appellant does not question that these ordinances are expressly authorized by Section 16 of Article 3 of the Kansas City charter.

We do not think that any of the constitutional provisions used as a weapon of attack against these ordinances have any relation or reference to the facts of this case with the exception of Section 30 of Article 2 providing that no person shall be deprived of life, liberty or property without dne process of law, and Section 3 of .Article 10 providing for the uniformity of taxes, and Section 4 of Article 10 which provides that property subject to taxation shall he taxed in proportion to its value. These three propositions can best be considered together, for the question at once arises as to what branch of the governmental powers these ordinances refer.

The police power, as was said by the Supreme Court of the United States in Munn. v. Illinois, 94 U. S. 113, 125, and repeated by this court in Houck v. Drainage District, 248 Mo. 373, 384, “are nothing more or less than the powers of government inherent in every sovereignty, . . . ; that is to say, . . . the power to govern men and things.” To make possible its exercise it must call to its aid the subordinate power of taxation, which has for its office the raising of the necessary funds for the performance of those governmental functions which it assumes to exercise. The government is a social compact, by which the whole people convenant with each citizen and each citizen with the whole people, that they shall be governed by certain laws to be enacted for the public good. The terms of this compact are defined by the Constitution. By that instrument the Legislature was created, and invested with a power to enact laws for the common good, which is limited only by the terms of the Constitution itself. This does not confer power upon the whole people, represented by the lawmaking branch of the government, to control rights which are purely and exclusively private. These rights represent private ownership and are private property, the inviolability of which is guaranteed by Section 30 of Article 2 of our State Constitution, to which we have already alluded. The due process of law to which it refers consists of all laws enacted by the Legislature in pursuance of its powers. These include the power, as was said by Chief Justice Waite in the Munn case, supra, to establish law “requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere two ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Tauey in the License Cases, 5 How. 583, ‘are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern man and things.’ This is the true test of the extent and character of the police power of the State. It governs everything necessary to regulate the conduct of citizens toward each other in such a way that all may exercise that measure of liberty of action consistent with the welfare and freedom of others.

Applying these principles to the matter here in controversy we find an excellent illustration of the rule which we have stated. It appears from the appellant’s brief that the corporation which he represents is the owner of approximately 50001 feet of frontage along the sidewalk mentioned in the record. Some of the lands which originally belonged to him have been sold and are occupied by others representing the purchaser. The street as well as the sidewalk were like all public highways brought into being by the exercise of the police power of the State. It is the exercise of this power that has given the lands their urban character, and by which the whole people have assumed the responsibility for providing means by which these ways may be maintained for the use of all, and for the benefit such use confers upon the land of adjoining proprietors. The same governmental principle by which the Legislature may improve its streets, and construct sidewalks and reconstruct or repair them when they have fallen into natural decay, at the expense of adjoining proprietors, applies with equal force to the removal of such temporary obstructions as are the motif of this case. The duty is charged upon the occupant of the property an well as the owner, and relates solely to the use of his own appurtenant easement in such manner as shall not injure others in the enjoyment of a use to which they are entitled. He is entitled to the use in common with all others. In addition to this he has a special right of ingress and egress appurtenant to his ownership or occupation of the land which is clearly an element of its value. Should he he cut off from this access, the right of the public in the street would remain unimpaired except as a means of communication with his property. The charter and ordinances before us are framed upon the theory that the preservation of this right is dependent upon the preservation of the condition upon which it rests. If i't stops at his gate it does not exist. Although he may keep the walks within his lot swept and garnished it gives him no access to the street. A snow drift against his gate excludes him as completely as would an iron bar extended across it.

Laws of this class rest largely, although not entirely, upon these and other special benefits to those upon whom their burden is imposed. The matter of public convenience which, as we have already said, all must consider in the use of their property, is also an element in the imposition of the burden. A snow storm spreads itself as an obstruction over an entire city and the remedy must instantly spread itself over the same area to meet the emergency. It would be impossible otherwise than through the action of the law directly upon all in whose hands the remedy lay to meet the emergency. 'When this is done by the distribution of the burden upon those specially interested in the result the problem would seem to be well solved and public convenience and justice in the distribution of the burden are combined for the good of all. We need not wait until some Utopian scheme can be devised which would meet, with mathematical certainty, the conditions of every particular case. This duty of selection is necessarily inherent in the lawmaking department of every constitutional government. When in tie exercise of the police power it has acted, it becomes the duty of every person within its jurisdiction to obey, unless he can point to some constitutional guaranty which absolves him from obedience.

This is the same power by which the citizens may be compelled, at the direction of a peace officer, to come to his assistance in the suppression of riot, to aid in the extinguishment of fire, or to suffer his building to be demolished for that purpose. His person and his property are at the disposal of the State whenever the circumstances require that he, of all others, should be selected for the service, either by reason or propinquity or special interest or both. This relation is to be determined by the Legislature, subject to those limitations prescribed by the Constitution for the protection of private, rights.

In Ford v. Kansas City, 181 Mo. 137, 147, we said:

“While there is respectable authority for the proposition that a municipal corporation cannot impose upon the citizen the obligation to keep the public sidewalk in front of his premises free from obstruction by snow, etc., at his own expense (Gridley v. City of Bloomington, 88 Ill. 554; Chicago v. O'Brien, 111 Ill. 532), the weight of authority is, however, the other way, and in favor of the position tentatively stated in the foregoing dicta, as to such power.”

Examining these authorities, we find that the Illinois cases cited have little or no support except in State v. Jackman, 60 N. H. 318. On the other hand, the cases, sustaining such ordinances are numerous, and the logic of some of the opinions strikes us as unanswerable. Among these are the following: Goddard, Petitioner, 33 Mass. 504; Clinton v. Welch, 166 Mass. 133; Commonwealth v. Cutter, 156 Mass. 52, 55; Carthage v. Frederick, 122 N. Y. 268; State v. McMahon, 76 Conn. 97, 105; Helena v. Kent, 32 Mont. 279; Reinken v. Fuehring, 130 Ind. 382. Many other cases sustain the same doctrine in principle. It has been received and announced with favor by the text-writers.- [Freund on Police Power, sec. 620; Dillon on Municipal Corporation, sec. 713; McQuillin on Municipal Corporation, sec. 924.] In this court it has at least been taken for granted that these ordinances, when, as in this case, authorized by the Legislature, are a valid exercise of the police power of the State [Norton v. St. Louis, 97 Mo. 537, 541-2; St. Louis v. Insurance Co., 107 Mo. 92 ; Ford v. Kansas City, 181 Mo. 137, 147.]

The ordinance in question is, in our opinion, a valid exercise of the police power of the State and constitutes no violation of any provision of the State Constitution to which our attention has been directed. The judgment of the criminal court for Jackson County is affirmed.

Railey, C., concurs.

PER CURIAM: — The foregoing opinion of Bsowsr, C., is adopted as the opinion of the court.

All of the judges concur.

CASES DETERMINED . BY THE SUPREME COURT OF THE STATE OF MISSOURI AT THE APRIL TERM, 1918.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    ELIZA WILEY et al. v. DOROTHY A. HARLOW, Appellant.
    Division Two,
    April 9, 1918.
    1. LAW CASE: Tried by Court: Appellate Rule. An action to quiet title, coupled with, a count in' ejectment, wherein the issue is whether the plaintiffs are heirs at law of the common source of title, is a law case, and having been tried by the court sitting as a jury, the judgment must be upheld on appeal if there is any substantial evidence to support it.
    2. CHILDREN OP FORMER SLAVES: Marriage: Abandonment of First Spouse. The statute (Sec. 344, R. S. 1909) requires that the offspring of former slaves, born while their parents were held in slavery, must have been born while the relation of man and wife existed. It connotes either a ceremonial marriage, or a common-law marriage, or the similitude in form of one or the other; but since a slave was incapable of making a contract, no penalties can be visited uppn him or his offspring if, having gone through the form of marriage and begotten and had born issue thereof, he afterwards, during the life of the first qwcm-wife, abandoned her and married another woman.
    3. -: -: -: Good Faith. The statute legitimized children of slaves who “were living together in good faith as man and wife at the time of the hirth of such children;” and under it, if the slave at different times in good faith lived with two spouses, and while so living with them children were horn to him, such children after their emancipation were legitimate, and capable of inheriting from him. But he could not “in good faith” live with two women at the same time “as man and wife;” and if after a form of marriage with one spouse, he abandoned her and entered into a ceremonial marriage with another and they cohabited together as man and wife, and two years thereafter a child was born to the first- spouse, such child is not legitimate, since he and she were not then “living together in good faith as man and wife,” hut such child was the result of illicit cohabitation.
    Appeal from Pike Circuit Court. — Hon. Edgar B. Wool-folk, Judge.
    REVERSED- AND REMANDED.

      Pearson & Pearson and J. E. Thompson for appellant.
    Marriage between colored persons, who were slaves, were void, and their offspring illegitimate (Johnson v. Johnson, 45 Mo,. 601), unless the parents, as slaves, were living together in good faith, as man and wife, at the time of the birth of such children. Sec. 344, R. S. 1909 ; Lee v. Lee, 161 Mo-. 57. But, no man even though he was a slave, could live with two women at the same time, and be “in good faith” living with each as man and wife. Sec. 4720, R. S. 1909; Eeen v. Eeen, 184 Mo. 373.

      Hostetler & Haley for respondents.
    (1) No instructions were asked and none given by the trial court. The count to determine title involved no equitable issues, but was treated as' a law count, and tried as such. Of course the ejectment count was one at law only. In such circumstances the finding of the trial court on all questions of fact is absolutely binding and conclusive on the reviewing appellate court. The latter tribunal has no concern with the weight of the evidence but is limited solely to the question as to whether there was any evidence at all to support the conclusion reached by the trial court. Conlson v. LaPlant, 1'9!6 S. W. (Mo.) 1146; Lee v. Conran, 213. Mo. 404; Minor v. Burton, 228 Mo. 558; Hanson v. Murray, 256 Mo. 84; Minor v. Burton, 228 Mo. 564; Abeles v. Pilhnan, 261 Mo. 376; Slicer v. Owens, 241 Mo. 323. (2) Regardless, of the merits of the very interesting question as to the validity of marriages between slaves, Sec. 344, R. S. 1909, a curative statute, which was first enacted in 1865, settles the question in respondent’s favor. Lee v. Lee, 161 Mo* 52. All that i*s necessary under the statute is, that the slave, parents should have been “living together in good faith as man and wife at the time of .the birth of such children” in order to- legitimatize the children for the purpose of inheritance. The trial court believed the evidence offered in support of" this status; even if the appellate court could properly determine this issue on the weight of the evidence, it would be compelled to approve the action of the lower court, because the great weight of the evidence was with the respondents.
   FARIS, J.

This is an action tried in the circuit court of Pike County, whereby it is sought to determine title to a certain tract of land situate in said county. The petition contains also a count in ejectment. Upon a trial below, judgment went for plaintiffs for an undivided one-ninth interest each in the premises in controversy. Prom this judgment, after the usual motion, defendant has appealed.

The agreed common source of title is William Smith, a negro, sometimes called William Yager, who was before .the Civil War a slave. Plaintiffs, Eliza Wiley and Albro Smith, claim to be the children and only heirs of William Smith. The defendant is the grantee by mesne conveyances of certain other children whom! defendant avers to be the only and all of the heirs of said Smith. According to the respective contentions of plaintiffs and defendant, said William Smith, was, while he was a slave, twice married. In the statement of the case and in the discussion thereof, we shall use the word “married” to express the relations which subsisted between Smith and the two negro women, who play the chief parts in the facts of this case, though fully recognizing that the above word with regard to the sexual relations which subsisted prior to emancipation among male and' female slaves is not a precisely accurate one.

According to the testimony adduced by plaintiffs, William Smith was owned by one Yager, who resided with his slaves on a farm in Pike County. Near the Yager farm, perhaps adjoining it on the south, resided a man by the name of John South, who owned numerous slaves,- among others a negro woman called Adeline, and who, taking the name of her master, was known as Adeline South. According to the testimony of one Collins South, an old negro some seventy-five years of age, who wa,s himself a slave, and.who likewise belonged to John South, the negress Adeline was married about the year 1850, to said William Smith. There was a ceremony of marriage between the two, performed, according to the latter witness, by a negro preacher by the name of Enoch Jackson. From and after the marriage of Smith to the woman Adeline, these two' lived together for some three years as man and wife in a cabin on the farm of John South, the master of the woman. From the relation thus established there were born to William Smith and Adeline, three children, of whom one is the plaintiff Eliza. The date of the birth of the plaintiff Eliza does not clearly appear (which obscurity likewise attaches to many of the facts testified to by the witness Collins South), but the witness is clear upon the point that Eliza was born either1 prior to or in the year 1853; for in the latter year John South removed with all his slaves, including the woman Adeline, and the child Eliza, to a point in Lincoln County some thirty miles away from his former home. According to the witness Collins South, Smith continued to live with the woman Adeline after her master- had taken her to Lincoln County, for this witness says that Smith came to see her every Saturday night, and spent Saturday night and Sunday with her, and that from this relation there was born to- the woman Adeline, in 1855, the plaintiff Alb.ro Smith. These relations of Smith with the woman Adeline continued, according to this witness, till a period at least subsequent to 1859. Adeline South lived until 1878, and was the mother of a number of children besides those here concerning us. The subsisting relations, after plaintiff Albru Smith’ became old enough to remember, are likewise corroborated in a way by him, but he states that his mother always impressed.it upon him and the other children that they were not to mention the relations subsisting between her and Smith. So much in brief for the testimony upon which plaintiffs rely to make out their heirship to Smith.

On the part of defendants it is shown that their title emanates from Julia Gaines, Homer Smith, and others, the children of William Smith, by one Harriet Wheeler, and who claim to he the only heirs of said William Smith.

The testimony adduced by defendants conclusively (in the sense that it is not disputed) shows that in the year 1853'. William Smith went through a ceremonial form of marriage with a negro1 slave woman who belonged to a man named Hedges, and who was called Harriet Wheeler. The fact of this marriage is, as stated, shown conclusively. The family record of William Smith', which was given by Smith to his daughter, who testified in the case and identified this record, shows that this last marriage of Smith to the negress Harriet occurred either on the 15th of January, or the 15th of June, 1853. The writing is blind, and the doubt is due to the difficulty of deciphering: this date. Numerous witnesses also testify to the fact of this marriage of Smith and the woman Harriet. One of these, a son of Harriet’s old master, swears that he was personally present at this marriage ceremony, and that it was performed by the preacher Enoch Jackson. Numerous witnesses testify that from and after Smith’s marriage to Harriet, in 1853, these two continuously lived together as man and wife, according to the custom of slaves, until they were emancipated during the war, and that thereafter they continued to live together until Smith’s death in 19)04. From this relation between Smith and the woman Harriet, there were horn nine children, two qf whom died in infancy, and the others of whom, except two who died leaving heirs, and with whom we are not concerned here, were the mesne grantors of the defendant herein.

Upon a trial of the case below, without a jury, the court found, as stated, that plaintiffs were each entitled to an undivided one-ninth of the land in dispute, and that defendant was entitled to an undivided seven-ninths thereof.

Such further facts, as we may find it necessary to state, in order to make clear the view which we take of this case, will he found in our opinion.

I. This is a law case tried by the court sitting as a jury, without' any declarations of law asked, given, or refused, upon either side. In such case it is settled law that the judgment of the trial court must be upheld upon appeal, if there is any substantial evidence to support it. [In re Lankford Estate, 272 Mo. 1; Woods v. Johnson, 2164 Mo. l. c. 293; Hatton v. St. Louis, 264 Mo. 634.] The case is one which turns wholly upon the facts, for the law is settled by an express statute. This statute was passed in 1865, has been on the books ever since and reads as follows:

^Slaves'

“For the purposes of this article, the children of all parents who were slaves, and were living together in good faith as man and wife at the time of the birth of such children, shall be deemed and taken legitimate children of such parents, and all the children of any one mother, who was a slave at the time of their birth, shall be deemed lawful brothers and sisters, for the purposes of this article.” [Sec..344, R. S. 1909,]

The learned trial court found that plaintiffs are the children of the former slave William Smith, who is the agreed common source of title to the land in dispute. Measured by the above rule of verity, attaching to the finding of the court nisi in a law case, there is ample evidence to support so much of his finding. The vexing question is, were plaintiffs born while William Smith and Adeline South were “living together in good faith as man and wife1?” If they were so living together, the plaintiffs are legitimized by the statute quoted, and the judgment below is correct. F'or the statute, supra, seems to be fairly plain. It requires 'that the offspring, of former slaves, born while their parents were held in slavery, must be born while the cohabitation as man and wife existed. It connotes either a ceremonial marriage, or a common-law marriage, or to be exact (since slaves were incapable of entering into a contract of marriage or of any sort) the similitude in form of one or the other. It must also be construed in such wise as to1 subserve its beneficent intention of remedying an unfortunate situation, so far as is consonant with good morals and dignity, and therefore so as to exclude the legitimation of offspring begotten by mere casual cohabitation. So construed, it will no more permit a slave to have two wives, or two husbands, at one and the same time, than it would allow such a privilege to the free man or woman. This view follows from the express statutory requirement that the cohabitation must be in “good faith.” Since, however, the slave was incapable of making a contract (Lee v. Lee, 161 Mo. 52), no penalties were visited either upon the slave himself, or upon his offspring", if having gone through the form of either a ceremonial or a common-law marriage, and begotten and had born issue thereof, he should, during the life of the' first gwsi-spouse, abandon her and “marry” another woman. If he lived at different times in good faith .with eack S1icl1 spouse, all<l while so living children were born, snch children would be legitimized by our statute. Upon these considerations how stands this case ?

There was evidence sufficient to put in force the rule stated that the slave "William Smith went through a form of ceremonial marriage with Adeline South, the mother of these plaintiffs, about the year 1850'. Thereafter the negro Smith lived with plaintiffs’ mother till 1853, at which time the master of the woman removed with her, the plaintiff Eliza, and his • other slaves, to a point in Lincoln County, some thirty miles away from the master’s former home. While cohabiting in Pike County with the woman Adeline, following the ceremonial marriage, and before the woman was taken away to Lincoln County, by her master, the plaintiff Eliza was born. In 1855, and two years at least (there is some considerable evidence that it was seven or eight years) after Adeline left Pike County, the plaintiff Albro was bom.

The evidence is conclusive that either in January or June, 1853', William Smith went through a form of ceremonial marriage with a slave woman by the name of Harriet Wheeler, who belonged to one Hedges, and who is sometimes called Harriet Hedges. Likewise it is proved conclusively that Smith lived with this woman Harriet in good faith as her husband continuously till his death in 1904, and that there were born of Smith’s cohabitation with the womán Plarriet nine children. There is some testimony to the effect that Smith continued for some years after 1853' to sustain toward the woman Adeline a casual illicit sexual relation, and there is> evidence from which the court might well have found, as it is patent he did find, that the plaintiff Albro, as well as the plaintiff Eliza, is the child of Smith. But we do not think there is any substantial proof that Smith, after 1853, ever lived in good faith as man and wife with the woman Adeline. Such a view is in diametrical opposition to, and inconsistent with, both the law and the facts, as the proof shows them and as the learned court nisi was compelled to find these facts, in order to render the judgment which he entered in this case. For plaintiffs sued for. the whole fee npon the theory and allegation that they are the. sole and only legal heirs of William Smith. The trial court held that they are entitled to but an undivided one-ninth interest in. the land; evidently upon the theory that the whole of the living issue of both marriages are legitimized by our statute. This, in our opinion,’ cannot be true under the facts and the statute. Either Smith was, when plaintiff Albro was bom, living in good faith as man and wife with the mother of Albro, or he was living in good faith with Harriet Wheeler, whom he had married two years b.efore Albro’s birth. A cloud of witnesses, both white and black, testify to the truth of the latter fact, and the family record shows it conclusively; nor is it in fact denied by any witness for the plaintiffs. There is, as stated, some evidence of subsequent sexual relations between Smith and the woman Adeline,' but in some of the testimony as to the.se subsequent relations the sinister fact crops out that they were attended by circumstances evidencing their clandestine character. These relations in other words were not attended by the element of good faith which the curative statute quoted above makes a condition precedent to the legitimation of the offspring of ex-slaves. [Livingston v. Williams, 75 Tex. 653.] The facts of the prior ceremonial marriage between Smith and the woman Harriet, and of cohabitation between the latter gwsi-spouses continuously till Smith’s death, negative conclusively the existence of this necessary element of good faith in the relations of Smith and Adeline, after the 15th day of June, 1853. If before that date Smith had been living with the woman Adeline in good faith, the evidence shows that when her master took her to Lincoln County “he put her away,” and married another woman. The first “marriage”, was no bar to the second (Johnson v. Johnson, 45 Mo. 595), and as hinted above, the fact that Adeline was alive when the second form of marriage took place, did not under onr statute render the latter so far void as to make the offspring thereof illegitimate. If children horn of the relations between Smith and Adeline subsequent to 1853, were legitimate, then the children horn of the- “marriage” with the woman Harriet are not legitimate. Choice must he made as between the two horns of the dilemma presented. So choosing, we do not think there was any substantial proof of cohabitation in good faith as man •and wife between Smith and Adeline, after June 15, 1853. Inasmuch as plaintiff Albro was not born till 1855, the curative statute does, not apply to him. There is substantial proof, however, that the plaintiff Eliza was born while Smith and the woman Adeline were living together in good faith as man and wife. While no one except the old negro Collins South testifies as to this, he is explicit. And while his story is in many respects incredible, its weight was for the trial court and not for us. The trial court found in favor of the legitimacy of plaintiff Eliza, and we have no power to disturb that finding, under the rule of verity which we have perforce attached to the finding of the trial court in a law case, when he sits as the trier of facts.

It results that the case must be reversed and remanded for a new trial in such wise as is consistent with what we have written herein. Let this be done.

All concur.


author: ROY, C.

text:
    CAROLINA SALISBURY, Appellant, v. FRANCIS O. SALISBURY, MARY E. DUGGAN and G. W. GIBBS, Sheriff of Dent County.
    Division Two,
    April 9, 1918.
    JURISDICTION: Injunction to Enjoin Execution: Residents of Another County. The circuit court, having rendered a judgment for debt, has no jurisdiction to enjoin the judgment creditor, a resident of another county, and the sheriff of that county, from selling land under execution issued out of said court. Nor can it obtain jurisdiction by the joining in the petition, as a defendant, of the original judgment debtor, who resides in the same county in which the judgment was rendered and who neither has nor claims any interest in the land in the other county levied upon, and is not acting in concert with the other defendants. To make a resident of a county a defendant for the sole purpose of giving the circuit court of that county jurisdiction is not lawful.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koemer, Judge.
    Aememed.

      John J. O’Connor for appellant.
    (1) The statute provides that -where two or more defendants are sued jointly and one of said defendants and the plaintiff reside in the county where the suit is filed, personal service of summons with copy of petition in said suit, on the resident defendant, will entitle the plaintiff to have copies of the summons sent to the sheriff or other proper officer of each of the different counties wherein the non-resident defendants reside, and services of said copies on such defendant’s by such sheriffs . will bring such non-resident defendants into court and subject their persons t'o the jurisdiction of the court as effectually as if the summons were served on them in the county where the suit was pending. Sec. 1751, R. S. 1909; Davison t. Hough, 165 Mo-. 572.. (2.) It will not be said that Francis 0. Salisbury was not' a material party to this suit. The judgment, the collection of which is sought to be enjoined, is against him, and moreover, if he was an improper party, -th'e defect should have been reached by demurrer. This not being done the defect, if any, was waived. Defendant Dug'gan in her separate answer alleges that he is the owner of said land. (3) Where two or more grounds are alleged1 in a petition, and either if true would give the plaintiff a cause of action, or the court jurisdiction, as -in this case, the fact that the plaintiff in such ease fails to prove one ground will not deprive such plaintiff .of the ground that is proven. State to use v. MeDougal, lGMo. App. 414. (4) If the court has jurisdiction of the subject-matter, the appearance of the defendants by answer to the merits, waives all objections to the service of summons and jurisdiction of the court over the persons of the defendants so answering. Hembree v. Campbell, 8 Mo. 572,; Brown v. Woody, 64 Mo. 547; Shuler v. Am. Benev. Assn., 132 Mo. App. 123; Thomasson v. Ins. Co., 217 Mo. 485; Julian v. Kansas City Star, 209 Mo. 35; Allen v. Welch, 12'5 Mo. App. 278; Sperry v. Hurd, 267 Mb. 639; Ewing v. Vernon County, 216 Mo. 681; Sehroeder v. Edwards, 267 Mo. 482; Mathias v. Arnold, 191 Mo. App. 352.

      W. P. Elmer for respondent.
    (1) The question of jurisdiction over the person may be raised by- answer if it does not appear on the face of the petition. Bonert v. Hotel Co., 130 Mo. App. 636; Byler v. Jones, 79 Mo. 261. It is only when the plaintiff pleads to the merits without raising the' question of jurisdiction that it is waived. Julian v. K. 0. Star, 98 H. S. 476; Little v. Herrington, 71 Mo. 391. (2) Several defendants may be joined, though they reside in different counties, but all the parties so joined must be jointly interested or act together in the nature of a conspiracy before jurisdiction can be obtained over any defendant not residing or served in the county where the plaintiff resides. The court has no jurisdiction over the defendants. Sec. 1751, R. S. 1909; State ex rel. v. Bradley, 193 Mo. 33»; .-Little v. Herring-ton, 71 Mo: 391; Comm. Co. y. Black, 130' Mo. 668. (3) Division No. 6 had no jurisdiction to issue an injunction to restrain the execution of proceedings from Division No. 5 of the circuit court of St. Louis City, for the reason that one court cannot enjoin or stay the proceedings of another court where they are of equal jurisdiction and authority. Scrutchfield v. Sauter, 119' Mo. 615; Sec. 2516, R. S. 1909; Bank v. Poole, 160 Mo. App. 133; Far-ris v. Smithpeter, 166 S. W. 656; Norman v. Eastman, 230 Mo. 168. Sec. 2244, R. S. 1909, points out the way of quashing executions, and this procedure is exclusive. Strangers might proceed under it the same as parties. Bank v. Poole, 141 S. W. 732. If there is no defect in the judgment, execution or levy, it should not he quashed. Cope v. Snyder, 019 Mo. App. 496. (4) An action to remove a cloud or prevent a cloud from being cast on title, affects the title to real estate and must hie brought in the county where the real estate is located. Sec. 1753, R. S. 1909; Davidson v. Huff, 165 Mo. 572.
   ROY, C.

This is a suit to enjoin the sale of land under execution. The hill was dismissed and plaintiff has appealed.

Plaintiff and Francis O. Salisbury, one of the defendants, are husband and wife, and are residents of St. Louis. The other two defendants are residents of Dent County, of which said Gribbs is sheriff. Plaintiff furnished her hush,and with money to buy for her some Dent County land. Pie did so, but fraudulently took the title in his own name. He got in debt to defendant Duggan, and she recovered judgment for it against him in the circuit court of the city of St. Louis in April, 1914. Execution was issued on that judgment, directed to defendant Gribbs as sheriff of Dent County, and was levied on the land. Plaintiff then sued her husband in Dent County to divest him of title to the land and tó vest it in herself. The husband entered his voluntary appearance therein, but filed no answer. The decree was in accordance with the petition.

Thereupon, plaintiff brought this suit in the circuit court of St. Louis to enjoin the sale of the land under that execution. The petition charges that defendants Duggan and Francis O. Salisbury are acting together in the attempt to sell said land under said execution.

The answer of defendant Duggan contained the following:

“First: Questions the jurisdiction of the court over' the person of Mary E. Duggan in this cause for the reason that she,, the said Mary E. Duggan, is a resident of Dent County, Missouri, and was ’a. resident of said county at the date of the filing of plaintiff’s bill, and that the plaintiff is a resident of the city of St. Louis, Missouri, and that G. W. Gibbs, the sheriff of Dent County, .Missouri, is a resident of Dent County, and that the plaintiff fraudulently and unlawfully joined her husband, Francis 0. Salisbury, as a party defendant in this action for the sole and only purpose of seeking to acquire jurisdiction over the person of this defendant, Mary E. Duggan, and -her co-defendant, G. W. Gibbs, sheriff of Dent County; and that there is no joint interest or. liability, existing between the said defendants, Francis 0. Salisbury and Mary E. Duggan, and the said G. W. Gibbs, sheriff of Dent County, and this court is without jurisdiction to hear and determine this case as an independent action of injunction.
“Further answering, the defendant Mary E. Dug-gan, avers that this court has no. jurisdiction over the subject-matter of this action in this, to wit: That this court had no right to issue an- injunction restraining the proceeding of Division No. 5 of the circuit court of St. .Louis City, and to restrain the sale of the lands described in plaintiff’s petition under an execution issued by Division No. 5 of this court, and that this court had no control over the proceedings and execution issued by Division No. 5.”

The answer of defendant Francis 0. Salisbury was as follows:

“Now at this day comes Francis 0. Salisbury, one of the defendants named in the above entitled cause, and for his separate answer to the plaintiff’s petition heretofore filed in said cause says that he admits the truth of every allegation in said petition contained, except that he denies that he had aided the other defendants in depriving plaintiff of her land.”

On the trial the court found that plaintiff furnished the money to buy the land, and that the title was to have been put in her name; but that there was no evidence to indicate any conspiracy between Duggan and plaintiff’s husband to sell the land under execution. The Court then said:

“But there is absolutely, no evidence here as to any collusion between Francis 0. Salisbury and Mary Duggan. And that being the case, I do not see how this court has. any authority to hear and determine the rights of the plaintiff in this action in so far as attempting to restrain residents of a different county from interfering in any way with her right to a clear title and restrain from taking any action that would result in a cloud being put on her title. I am of the opinion that this matter has to be tried in Dlent County.”

I.' We agree with the learned trial judge that the circuit court of St. Louis had no jurisdiction herein against the defendants Duggan and Gibbs, residents of Dent County. Francis 0. Salisbury neither had nor claimed any interest in the property, and was. not acting in concert with the other defendants. He was evidently made a defendant for the sole purpose of givipg the circuit court of St. Louis jurisdiction. That can not be lawfully done. [State ex rel. v. Bradley, 193 Mo. 33; Haseltine v. Messmore, 184 Mo. 298.]

II. A plea to the jurisdiction is properly joined with a plea in bar. [State ex inf. v. Vallins, 140 Mo. l. c. 536, and cases there cited.]

The action of the trial court in sustaining the plea to the jurisdiction and dismissing plaintiff’s hill is sustained.

White, G., concurs.

PER CURIAM: — The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C.

text:
    CAROLINE M. WALTER v. JOSEPH F. DICKMANN, Sheriff of St. Louis, and JULIUS E. GREFFET, Appellants, and JOHN S. GUHMAN and MARY A. GUHMAN.
    Division Two,
    April 9, 1918.
    1. WILL: Perpetuity: Trust Estate: Gift of Income Only. The clause of a will by which testatrix gave three thousand dollars to a trustee, who was required “to pay to Mary A. Guhman, wife of my grandson, John S. Guhman, the net income of said trust fund during her natural life; after her death the net income is to be paid to my grandson, John S. Guhman, for and during the term of his natural life, and after his death to be paid in equal shares to the children of my grandson, and to them and their heirs and assigns forever,” is not obnoxious to the rule against perpetuities, is not void, but vested the title of the fund in the children of the grandson; and therefore certain real estate devised to testatrix’s daughter could not be sold under execution and judgment against said grandson on the theory that said clause was void and testatrix died intestate as to him.
    2. --: Construction: Ambiguities. Where the real intention of the testatrix may be carried out by giving effect to the language used according to its well established legal significance, it is not necessary to resort to rules of construction employed for the solution of ambiguities.
    3. -: -: Words of Purchase. The words “their heirs and assigns forever’’ used in a will after designated legatees, are not words of purchase, but words of limitation.
    4. -: -: -: To Heirs and Assigns Forever: Vested Estate. The trust clause of the will gave three thousand dollars to a trustee and required the net income to be paid to the wife of a grandson during her life, and after her death the net income to said grandson during his life, “and after his death to he paid in equal shares to the children of my grandson, and to them and their heirs and assigns forever.” HelcL, that these last words' constitute a positive direction to the trustee without limit, qualification or contingency, and their intention and legal effect were to vest in the children of the grandson, after his death, the equitable title to the income arising from the fund.
    5. EQUITABLE ESTATES: Incidents: Trustee. Equitable estate are subject to the same incidents, properties and consequences that belong to estates at law. That a trustee intervenes between their creation and their enjoyment does not affect the significance of the words used to create them nor prevent the vesting of the title in the legatees.
    6. INCOME: Unlimited as to Time: Vestment of Corpus. A bequest of the income, use or occupation of any specific property, without qualification or limit as to time, is in effect a bequest of the corpus of the property. And the rule applies whether the gift be direct or through the intervention of a trustee. And it applies to active trusts in every case where the trust involves the gift or bequest of an income without limit as tó time.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. 1
    AfEIRMED-.

      Kinealy & Kinealy for appellant.
    (1) As the trust created in clause seventh of the will of Mary Walter is not restricted to a life or lives in being and twenty-one years it violates the law as to perpetuities and is void. 30 Cyc. 1483;; Sheppard v. Fisher, 206 Mo. 208. (2) The intention of the testatrix must be gathered from the words employed in, the will. Thompson on Wills, p. 136-, sec. 157; 1 Schouler on Wills (5 Ed.), p. 586, sec. 466; 2 Woerner’s Am. Law of A dm. (2 Ed.), sec. 414, p. 870; Hprst v. Yan de Yeld, 158 Mo. 239; Settle v. Shafer, 229 Mo. 561. (3) And this is true although the intention so expressed may appear to the court or to others as absurd. 30 Am. & Eng.- E-ncy. Law (2 Ed.), p. 663-; Board of Trustees v. May, 201 Mo. 360; Elliot v. Topp, 63 Miss. 138; Marshal] v. Hadley, 50 N. J. Eq. 547; Jackson v. Hoover, 26 Ind. 511. (4) Clause seventh, of the will being void, the will must be construed as though that clause did not appear therein. Sandusky v. Sandusky 261 Mo. 351; Lurie v. Radnitzer, 166 Ill. 609 ;. Ramsdill v, Wentworth, 101 Mass. 125. (5) John S. Guhman being mentioned only in the void clause of his grandmother’s will, she died intestate as to him, since there is nothing to show that he was intentionally omitted therefrom. R. S. 1900, sec. 544; Thomas v. Black, 113 Mo. 66.

      Muench, W-aUher & Mnench for respondent.
    (1) The cardinal rule to be followed in the construction of every will is that the true intention of the testator should be discovered, and then followed. R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491; Freeman v. Maxwell, 262 Mo. 13; Middleton v. Dudding, 183 S. W. 443. (2) In case of an actual ambiguity, that construction will be adopted which will leave the will as an effective instrument, rather than a construction which would invalidate the same. 2 Jarman on Wills (6 Ed.), p. 2208; 3Ó Cyo. 149l9, 1515. And the estate will be held a vested, rather than a contingent one, where doubt exists. Collier Will Case, 40 Mo. 287; Deacon v. Trust Co., 197 S. W. 265'; Tindall v. Tindall, 167 Mo. 225; Cox v. Jones, 229 Mo. 53. (3) A will should be so construed as to dispose of the entire estate, unless a different intention be clearly expressed. F'arish v. Cook, 78 Mo. 212; Webb v. Archibald, 128 Mo. 299. And the fact that a will was made, raises the presumption of law that the testator intended to, and did, dispose of all his property. Mudd v. Cunningham, 181 S. W. 386; Griffith v. Witten, 252 Mo. 643. (4) The trust estate created under clause seven of the will ran for the joint lives of John S. Guhman and Mary A. Guhman, his wife, but vested in their children as to the remainder, immediately upon the death of testatrix, to become executed in them upon the death of the last surviving life-tenant. Deacon y. Trust Co., 197 S. W. 261; Mettler v. Warner,'243' Ill. 600. (5) E.ven though, clause seven could be held void, as in violation of the rule against perpetuities, yet John S. Guhman was so fully “named” in the will, and so completely shut out from participation in the remaining estate of his grandmother, as to leave him no vendible interest in that estate. Sec. 544, R. S. 1909; Guitar v. Gordon, 17 Mo. 412.; Fugate v. Allen, 119 Mo. App. 188; Block v. Block, 3 Mo. 594; Beck v. Metz, 25 Mo. 70; Hockensmith v. Slusher, 26 Mo. 237; McCourtney v. Mathes, 47 Mo. 533; Pounds v. Dale, 48 Mo. 270; Wood v. Drake, 135 Mo. 393.
   WHITE, C.

The plaintiff sought to enjoin the sale under execution by defendant Joseph Dickmann, sheriff, of certain real estate. The execution was issued on a judgment in favor of defendant Julius E. Greffet and against defendant John S. Guhman. The property was levied upon as the property of defendant John S. Guhman, and plaintiff brought this suit to restrain the sale, claiming the real estate was her own and such sale would cloud her title. On the filing of the petition the trial court granted a temporary injunction, which on'a final hearing was made perpetual; the sheriff and Greffet appealed.

The land upon which the levy was made was devised to the plaintiff, Caroline M. Walter, by her mother, Mary Walter, who died in 1909. John S. Guhman was the grandson of Mary Walter; his mother, a daughter of Mary Walter, died before the death of her mother. Appellants claim that John S. Guhman,-by descent, had an interest subject to levy for the payment of his debts in the real estate, which was given by the will to other devisees. This, on the theory that he was not “named or provided for” in the will, as required by the statute. However,- the will has the following clause in relation to John S. Guhman:

“Seventh: I give and bequeath to William H. Hauschulte the sum of three thousand dollars in trust, however, for the following uses, benefits and purposes, to-wit: He, • the said trustee, is to pay to Mary A. Guhman, wife of my grandson, John S. Guhman, the net income of said trust fund during her natural life; after her death the net income is to he paid to my grandson, John S. Guhman, for and during the term of his natural life, and after his death to he paid in equal shares to the children of my grandson, and to them and their heirs and assigns forever. Should the said trustee, William H. Hauschulte, or his successor, at any time during the trust term, deem it fit or advisable to pay over to the said Mary A. Guhman, or my grandson, John S. Guhman, any portion or the whole of said trust fund, he may do so without the sanction or authority of any court or legal inference, whatsoever.” -

In order to sustain their position appellants assert, and must maintain, two propositions:

First: That this provision in the will for John S. Guhman is void as coming within the rule against per-petuities.

Second: Because that clause is void it cannot he considered in construing the will, citing Sandusky v. Sandusky, 261 Mo. 351. Considering the will with that clause ignored, John S. Guhman was “not named or provided for,” is the argument.

Both sides assume that if the limitation over to the “heirs” is within the rule, the entire clause is void.

The contest turns upon the interpretation of the language which gives $3,000' to William S. Hauschulte, in trust, with directions to pay the “net income” of the fund to Mary A. Guhman during her natural life, and “after her death the net income is to be paid to my grandson, John S. Guhman, for and during the term of his natural life, and after his, death to be paid in equal shares to the children of my grandson, and to them and their ,heirs and assigns forever.”

Appellants construe it as a continuing trust, the discharge of which requires the payment of the net income arising from the fund, not only to Mary A. Guhman for life and to John S. Gnhman for life and then to his children, bnt also to their heirs forever, as direct beneficiaries of the trust, so that the absolute title would not necessarily vest in anyone within the lives of persons- then in being and twenty-one years threafter; it would therefore be within the rule against perpetuities and void.

Respondent’s construction makes the words “to be paid in equal shares to the children of my grandson” refer to the corpus of the fund, so that on the death of Mary A. and John S. Guhman, the trustee may deliver the fund to their children as their absolute property, thereby finally executing the trust and leaving no place for application of the rule against perpetuities.

It does not seem necessary to bring into play rules of construction employed for the solution of ambiguities. The real intention of the testatrix may be carried out by giving effect to the language used according to its well established legal significance.

The construction of appellants necessarily treats the words “their heirs and assigns forever” as words of purchase, whereas under all rules and precedents they are words of limitation. If words mean anything, the expression “after his death to be paid in equal shares to the children of my grandson, to them and their heirs and assigns, forever,” is a positive direction to the trustee without limit, qualification or contingency. The intention and the legal effect of the words used was' to vest m the children of John S. Guhman, after his death, the equitable title to the income arising from the fund, a title which they could assign and which would pass to their heirs by descent. That a trustee intervenes makes no difference in the significance of the words used. Equitable estates are subject to the same incidents, properties and consequences as belong to estates at law. [1 Perry on Trusts and Trustees (6 Ed.), sec. 357, et seq.; Simmons v. Cabanne, 177 Mo. 336, l. c. 352; Lich v. Lich, 158 Mo. App. 400, l. c. 414; Cornwell v. Wulff, 148 Mo. 542; Young v. Robinson, 122 Mo. App. 187, l. c. 193.]

There is respectable authority for the doctrine that •a vested equitable interest in an income from personal property is not subject to the rule against perpetuities, though title to the corpus of the property does not vest within the required time. [Rhodes’ Estate, 147 Pa. St. 227.] Without determining the point by application of that doctrine, another well recognized rule may be applied with the same result. A bequest of the income, use or occupation of any specific property, without qualification or limit as to time, is in effect a bequest of the corpus of the property. [Baldwin v. Tucker, 61 N. J. Eq. 412; Passman v. Guarantee Trust & Safe Deposit Co., 57 N. J. Eq. 273; Sampson v. Randall, 72 Me. 109; Martin v. Fort, 83 Fed. 101, l. c. 24; Gulick v. Gulick’s Exrs., 27 N. J. Eq. 498 ; Thompson on Wills, sec. 231; Beilstein v. Beilstein, 194 Pa. St. 152; Cornwell v. Methodist Church, 73 W. Va. 96 ; McMichael v. Hunt, 83 N. C. 344; Bransfield v. Wigmore, 80 Conn. 11; 2 Jarman on Wills, 1185-6.]

In the case of Baldwin v. Tueker, supra, the executors were authorized to sell certain property, invest the proceeds, and pay the interest accruing to the wife of the testator during life. This provision of the will then follows:

“ ‘At the death of my said wife the interest so accruing shall be paid equally to my living children or their heirs, share alike, — the children receiving the share coming to my children. ’ ”.

The court in ruling on this said (pp. 413-14):

“It will be observed that the corpus of the estate, as distinct form the interest or income, was not, expressly and in plain terms, disposed of by this clause, and the question is, whether, considering the bequest to be merely of the interest or income of the estate, which had been previously given to the wife for life, such bequests of the interest, being without limitation as to time, is to be construed as effecting a bequest of the corpus to the person who are legatees of the interest. Upon this point the decisions of onr courts have established the rule that a bequest of the interest of personal estate, without any limitation as to continuance, is a gift of the corpus which produces the interest.”

It was then held that the title to the corpus vested in the children on the death of the wife.

In the case of Passman v. Guarantee Trust & Safe Deposit Company, supra, where the gift was of a. fund to trustees who were directed to pay the “net income” to the beneficiaries, “their heir's and assigns forever,” the court, after stating the rule as above mentioned, said (p. 276): “The saíne rule applies whether the gift be direct or through the intervention of a trustee.” And on page 277: “The operation of the rule is not defeated because some duty in realizing assets and securing and paying the income is cast upon the trustees. In Earl v. Grim, 1 Johns. Ch. 499, executors were directed by the will to rent or sell lands as they saw fit, and, in case of sale, to put the money at interest and pay the interest annually to G. P., etc. Chancellor Kent held that those who, by the terms of the will, were entitled to the interest were also entitled to the principal of the proceeds of sale. In Philipps v. Chamberlaine, 4 Yes. 51, the testator gave the residue of Ms real and personal estate to trustees to convert into money and invest, etc., and directed them .to pay the surplus of dividend and interest to his daughter, son, nieces, etc. The court held that the bequest to the trustee upon trust, to pay the interest from time to .time without limitation of duration, carried the principal also.”

And further: “In the case under consideration the whole income is given to the cestuis que trustent, their heirs and assigns. As between the beneficiaries and the trustees, the latter have no power to refuse the payment of any portion of the income, nor have they any duty to retain the residuary estate for the benefit of any successor in interest.”

In the case of Sampson v. Randall, snpra, the will of A. Q. Randall divided the income arising from his property among his relatives. The court in construing the will held it was the duty of the executor to reduce the personal assets of the estate to money and distribute as provided by the will, and said (72 Maine, 112): “But the same rale applies to personal estate as to real estate, namely, the gift of the income is in contemplation of law equivalent to a gift of the property itself . . . if the gift is of the perpetual income, then the donee becomes the absolute owner of the property. So held in Stone v. North, 41 Maine, 265.”

So far as we are able to find, -the point never has been decided in this, State, hut the rule as stated seems to obtain in all jurisdictions where the matter has been presented for .adjudication, and many English cases are cited in its support. The rule applies to active trusts in every case where the trust involves the gift of an income without limit. Immediately on the death of John S. G-uhman the title becomes vested in his children whoever they are and, under the rale just' considered, carries with it absolute title to the corpus from which the income is derived. That would be true whether the payment of the fund could be enforced at once or the trust continued; that is, whether the title to the fund was legal or equitable. A vested title or interest, whether legal or equitable, is never obnoxious to the rule against perpetuities.

It is unnecessary on this view of the case to consider the second proposition of appellants, for the contingency on which it might be pertinent does not arise.

The judgment is affirmed.

Roy, G., concurs.

. PER CURIAM: — The foregoing opinion by White., C., is adopted as the opinion of the court.

All of the judges concur.