author: YALLIANT, J.

text:
    BOARD OF TRUSTEES OF PARK COLLEGE, Appellant, v. THE ATTORNEY-GENERAL.
    Division One,
    May 31, 1910.
    1. COLLEGE FUNDS: Unrestricted Donations: Use for Current Expenses. One section of the college charter provided: “The Board of Trustees are hereby forbidden to contract any debts against the corporation or to mortgage the property of the college proper, or to do any act to erect a lien upon or incumber any property given, or purchased, or vested in it, in trust or otherwise, but shall hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships, scholarships, or other funds, preserving them in perpetuity; handing them down to their successors forever; and all claims against the above named property shall he void in law.” Held, that the Board of Trustees were not restricted thereby from using unrestricted and unconditional donations to pay current expenses. They are not compelled by that language to pass all such donations to the endowment fund, and to use only the subsequent income thereof to pay necessary expenses, where such expense is necessary to meet the avowed purpose of the charter to maintain a school. The primary purpose of the charter language is to prohibit the contracting of debts, and whenever it becomes necessary to avoid the contracting of a debt for necessary current expenses the hoard may use unrestricted donations to pay such expenses.
    2. -: -: -: Meaning of Word “But”: Debts. The word “but” used in the midst of the words quoted in syllabus one from the charter, may mean “except” or “on the contrary, on the other hand,” but it was probably used in the latter sense; that is, it was intended to say the trustees should incur no debt and create no mortgage or lien, on the contrary they should hold inviolate the property, etc., “using only furniture, stock, lands, buildings' and the interest of the funds.” But whether it be held to mean “except” or “on the contrary,” resort must be made to the first part of the sentence quoted to ascertain what the words following “but” mean; and the sentence, taking all its parts together, means that the trustees shall not jeopardize the property by incurring debts or creating mortgages, “hut” shall preserve the same unbroken, and in place of incurring debt for any purpose, they may use, for that purpose, only the income of the property and the interest of the funds, and beyond that what cannot be done without going in debt must be left undone. Under that clause the trustees are forbidden to incur debts even for the necessary current expenses of maintaining the college. But using for necessary current expenses money given to them by donors without any directions as to the purposes for which it was to be used, is not going in debt.
    3. -: -: -: Meaning of “Endowment,” Etc.: “Other Funds”: Ejusdem Generis: Money. The words “endowment funds,” “professorships” and “scholarships” áre terms indicating permanent investments for particular purposes, or money designated to be so invested and held for a particular purpose, And the words “other funds,” following immediately those words, mean other funds ejusdem generis, and their use in that connection forbids the giving to them the meaning of money in its unrestricted sense.
    4. -: -: -: Meaning of “Or”: Ejusdem Generis. The conjunction “or,” used in the sentence from the charter quoted in syllabus one, was not- used in its alternative sense. The author of the charter did not mean to say the Board of Trustees should preserve intact either the moneys or the endowment funds, one or the other, as they might determine. The word “or” may be used to join different terms expressing the same thing, and that is the sense in which it was used in the charter. The word “moneys” was used by the author as synonymous with “endowment funds, professorships, scholarships, or other funds,” omnia ejusdem generis.

    5. -: -: Money Given for Endowment: Unconditional Donations: Use. Under the charter of Park College moneys given to the college and designated for a particular purpose, as for an endowment fund, a professorship, a scholarship, or other purpose of like character, cannot be used for any other purpose without violating the terms of the charter. But money does not become an endowment fund until it is either set apart or designated by the' donor for that purpose; and money given without any designation of the purpose to which it is to be applied may be used for such purposes, as the Board of Trustees may deem best for the good of the college.
    6. -: Individual Liability of Trustees: Necessary Good Faith. A trustee by accepting the office of member of the Board of ■ Trustees, enters into an implied contract with the corporation that, in the exercise of the power that office confers on him, he will faithfully observe and obey the mandates of its charter, and he becomes personally liable to the corporation for any breach of that implied contract, if the corporation is damaged thereby. The fact that he acted with good faith would be no defense if lie committed a breach of the contract. But it would be no breach of the implied contract if the transaction was one calling for the exercise of his judgment and he exercised that judgment in good faith, although it should turn out to be a bad or mistaken judgment.

      17. -: -: Contracting Debts: Using Unrestricted Donations to Pay Expenses. Where the charter expressly forbids the board of trustees to create a debt on the credit of the corporation, the creation of a debt by the board is a breach of the individual trustee’s implied contract, and such of the trustees .as vote for the creation of the debt become personally liable •to the corporation for the injury, if injury results. But where 'there is no direction in the charter as to what is to be done with unconditional donations, if a proposition should come before the board to purchase for the use of the college certain property, or to procure certain conveniences, such as water or light, and the trustees in good faith exercise their best judgment and make the purchase or obtain the proposed conveniences, paying for them out of moneys belonging to the corporation which have not been devoted to any other special purpose, the individual trustees would not be personally liable, even though it should turn out that the investment was a bad one and loss was entailed thereby upon the corporation.
    Appeal from. Platie Circuit Court. — Hon. Alonzo I). Burnes, Judge.
    'Reversed and remanded (with, directions).

      John T. McRuer, Geo. W. Bay and S'carritt, Bcarsritt & Jones for appellant.
    (1) The interpretation of section 2 of article 3 of the charter, insisted upon by the minority of the hoard, to the effect that all donations made to the institution without any restrictions or directions on the part of the donors, must he used only to he loaned out or invested to hear interest, and the interest only expended for the needs of the institution, must he found, if at all, in the words “other funds.” The language is, “shall hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships, scholarships, or other funds.” The minority of the board insist that this language means that all funds coming to the institution, although not directed by donors or otherwise restricted, must be put out at interest and cannot be expended in constructing a college building, or some other necessary plant for the' institution. On the other hand the majority of the; board consider that the words “other funds” mean funds of a like kind and character with those that are particularly enumerated. A familiar rule of construction is that where general words follow particular ones the former should be construed as applicable to the things of the same general class as the particular-words by which they are preceded. State v. Dinnissep 109 Mo. 438; St. Louis v. Laughlin, 49' Mo. 559; State-ex rel. v. Bersch, 83 Mo. App. 665. The only funds; particularly mentioned to be held “inviolate” are1 “endowment funds, professorships, scholarships.” An endowment, according to the Standard Dictionary, is “a sum settled or property devised for the permanent use of an institution.” The general use and meaning of the word coincides with the dictionary definition. So a professorship and a scholarship are well known and generally understood to mean, in such a connection as we here find them, permanent funds, the income of which is used to pay the salary of a professor or the expenses of a student at an institution of learning. So we see that every one of the particular funds-mentioned in this section is permanent, that is, an endowment fund. Applying the rule of construction last' above mentioned, the words “or other funds,” following the words “endowment funds, professorships; scholarships,” should be construed to mean other funds of a similar character, that is, other permanent' or endowment funds. If the words “or other funds”' should be construed to mean every dollar that should be given or accrue to the institution from every source,, as contended by the minority of the board, then the-board would not be at liberty to use the tuition, labo--ratory or other fees paid in each year by the' students, in defraying the current expenses of the institution, but as soon as. the tuition money was paid in it would bécome a “fund” of the institution and would have to be put out at interest; and the institution, under that construction of the charter, would not be at liberty to use the proceeds of the sale of any of the products of the soil that the record shows come from the farms tilled by the students in connection with the institution, but every dollar gotten from the sale of corn or wheat or potatoes would be “funds” of the institution and would have to be placed out at interest. Hanlon v. Floyd Co., 53 Ind. 123; Boulle v. Tomkins, 5 Redf. Sur. (N. Y.) 477; Lane v. Madgebury, 81 "Wis. 344. (2) The rule that the whole of an instruction must be construed together, and each part made to harmonize, if possible, with every other part, is so often invoked and is so well known that it would be more than useless to cite authorities in support of it. The application of this rule to the charter in question unquestionably, we believe, leads to the conclusion that section 2 of article 3 is only a prohibition against the creation of debts and incumbrances. U. S. v. Fisher, 2 (branch (U. S.) 400. (3) It is a well-established rule of construction that the interpretation placed upon a constitution or charter by those executive officers whose duty it is to enforce it will be given great weight, and will not be overruled by the courts except for cogent reasons. Ross v. Railroad, 111 Mo. 18; State ex rel. v. Severance, 49 Mo. 404; U. S. v. Railroad, 142 U. S. 615; Pennoyer v. McConnaughy, 140 U. S. 1. (4) This charter is the constitution of this institution. In construing a constitution it is always the purpose of the ■court to avoid, if possible, such a construction as would lead to absurd results or even to inconvenient situations. U. S. v. Fisher, 2 Cranch (U. S.) 400; U. S. v. Kirby, 74 U. S. 486; Knowlton v. Moore, 178 U. S. 41.

      Elliott W. -Major, Attorney-General, Wilson $ Wilson, Warner, Bean, McLeod $ Timmonds and Geo. A. Lawrence for respondent.
    (1) A minority of a board of trustees, charged with the administration of a trust, may apply to a court of equity for directions touching the administration of that trust. Any trustee having reasonable doubt as to the proper disposition of funds in his hands has a right, for his own safety, to apply to a court of equity for directions. Hayden v. Marmaduke, 19 Mo. 403; Collier’s Will, 40 Mo. 287; Mersman v. Mersman, 136 Mo. 244. Wherever there is a bona fide doubt as to meaning of the instrument creating a trust, or as to the course which the trustee ought to pursue, the trustee is always entitled to maintain a suit in equity to obtain a judicial construction of the trust instrument and directions as to his conduct. State ex rel. v. Netherton, 26 Mo. App. 423; Mersman v. Mersman, 136 Mo. 244; Drake v. Crane, 66 Mo. App. 495. A trustee may not only ask a court of equity relative to matters involving his duty, but also to determine as to the title between him and others. Read v. Railroad, 75 S. W. (Tenn.) 1056. Trustees have a right to maintain an action in equity against other trustees to correct abuses or misapplication of the trust. Morrell v. Fowle, 144 Mass. 109; Marshall v. Caldwell, 125 Mass. 435; Dartmouth College Case, 4 Wheat. 703; 27 Am. and Eng. Ency.'Law {1 Ed.), 151; Traphagen v. Levy, 45 N. J. Eq. 448; McKenzie v. Trustees, 61 Atl. 1026; Dartmouth College Case, 4 Wheat. 463. (2) The attorney-general’s joining in the prayer of the petition gave the court jurisdiction. Women’s Christian Association v. Kansas City, 147 Mo. 125. (3) The construction placed upon the charter by the circuit court was proper, (a) What weight, if any, will the court give to oral testimony, in placing its construction upon the written words of the charter? It is our contention that the charter speaks for itself, and that its meaning must be gathered from the language it uses. Dwarris on Statutes and Constitutions, 110; 6 Am. and E¡ng. Ency. Law, 922, note, and 923; Hills v. Chicago, 60 111. 90; Newell v. People, 7 N. T. 97. (b) Can it be supposed for a moment that charitably disposed persons would long continue, their generous contributions to this college if they understood the laxness of the board of trustees in these regards ? State ex rel. v. Adams, 44 Mo. 577. (c) It is the contention of the majority that the writer of these sections had in mind only the prevention of incumbrances on the college property. If that were so, it would have been very easy, in few words, to have forbidden the giving of any mortgage or the contracting of any debt. The words used in the first three and a half lines of section 2 are plain and ample for that purpose. They say: “The board of trustees are hereby forbidden to contract any debts against the corporation, or to mortgage the property of the college proper, or to do any act to erect a lien upon or incumber any property given or purchased, or vested in it, in trust or otherwise.” Stop there, and the prohibition is full and complete. Why say more? What else did the draftsman have in mind when using the commanding language which follows the foregoing quotation? The board is in express terms commanded to “hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships, scholarships, or other funds, preserving them in perpetuity-using only furniture, stock, lands and buildings, and the interest of the funds; handing them down to their successors forever.” The idea clearly indicated here, as in other parts of the charter, is to amass a great volume of interest-bearing funds, so that, eventually, the college might be so securely founded that it would not be dependent, one year after another, upon the charitably inclined, nor be embarrassed by the fluctuating, uncertain, spasmodic or panic-stricken condition of the times — so that it -would “stand forever and go on improving like the older institutions of Europe and America.” The charter is the statute of the college. It is well understood that where there is a statute on any particular subject the statute enters into and forms part and parcel of every contract touching that subject. In other words, every contract is conclusively presumed to have been entered into with a view to the existing statute. The charter, in section 1, clothes the board with power “to receive gifts in money” and to “hold, secure and appropriate them for the use of Park College, according to the provisions of this charter and the will of the donors.” If A donates a sum of money, saying: “This donation is given for the purpose of erecting an electric light and heating plant,” the board must “receive” and “appropriate” it accordingly. If B donates a sum of money, large or small, saying: “This donation is given to defray current expenses of the college,” the board must “receive” and “hold, secure and appropriate” it accordingly. If C donates a sum of money, large or small, saying nothing further — then what? Go to the charter and see. That instrument says it must be received, held, secured and appropriated “according to the provisions of the charter.” What are those provisions relative to “money” and “other funds?” Read sections 2 and 5, article 3. The board must “hold them inviolate, preserve them in perpetuity, and hand them down to their successors forever;” and they may use only the interest on the funds, that is, spend it. The principal, large or small, must not be spent. That must be held in perpetuity, go to make up an accumulated fund, which will eventually place the college on sure, sound and safe footing, so that it will “stand forever and go on improving like the older institutions of Europe and America.” In this connection, as showing that the supposed donation from C, above mentioned, must be appropriated according to the provisions of the charter, read the Dartmouth College Case, 4 Wheat. 689; see, also, State ex rel. v. Adams, 44 Mo. 576, and Dwarris on Statutes and Constitutions, p. 110.
   YALLIANT, J.

This is a suit in equity, the purpose of which is to obtain a judicial interpretation of certain clauses of the plaintiff’s charter. The plaintiff corporation is an educational institution chartered under the general laws of this State, first in 1879, and again by amended charter in 1894. The college had existed as an unincorporated educational institution some years before 1879, under the care, and to a great extent at the expense, of its founder, George S. Park. From a small beginning it has grown to be an institution of large means, affording at present educational facilities to several hundred students and giving advantages to ambitious boys and girls, who have not otherwise means, to obtain education of a high degree by aid of their own industry and co-operation in the college work. It is an institution that reflects great credit on its founder and on that body of faithful men who have devoted their lives to the work. The charter gives to the board of trustees the power to fill vacancies, thus making the board self-perpetuating; it also gives them power to create vacancies by removal from office, but although now a difference has arisen between them touching the meaning of a certain clause in the charter, yet neither in the past nor in the present has there been or is there any reproach or charge of misconduct cast by one on another. We approach the consideration therefore of the point of difference between these parties with the highest respect for the opinion of each and with perfect confidence that on both sides the desire is to arrive at the true meaning of the charter.

In the first article of the charter it is declared that “the principles of the college shall be non-sectarian, but evangelical, imbued with the spirit of Christian liberty and charity.” And it is further declared that “the object of this corporation shall ever be to diffuse moral and religious principles, in the most practical and effectual manner; to afford the advantages of training and education to the youth of both sexes of the country, especially the west and southwest, to give especially facilities to youth found worthy and not having sufficient means, who may be inured to hardships, acquainted and in sympathy with the people among whom they are to live and labor, to obtain an education by labor or otherwise; thus offering a safe and unlimited opportunity to the patriotic and benevolent to assist in this great work, by their donations and endowment.”

In article 2 of the charter it is provided that there shall be daily Bible readings, lectures, model Sabbath school, etc., besides a full course of instruction in science, literature and art. “In the male department shall be taught agriculture, business management, skilled labor and practical wisdom.” In the female department, household and domestic duties. By such means it was declared that the students would contribute largely to their own support while gaining knowledge. “It is designed to educate by practice, training and doing as well as by teaching, and these departments of skilled labor, and science, literature and art shall be under the supervision and direction of the most competent instructors that the funds of the college will permit the trustees to employ.”

Section 2 of article 3 of the charter is the section about which there is a difference in opinions, which difference has led to this suit. That section is as follows : ‘ ‘ The board of trustees are hereby forbidden to contract any debts against the corporation, or to mortgage the property of the college proper, or to do any act to erect a lien upon or incumber any property given, or purchased, or vested in it, in trust or otherwise, but shall hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships (scholarships), or other funds, preserving them in perpetuity, using only furniture, stock,, lands and buildings, and the interest of the funds;handing them down to their successors forever; and all claims against the above named property or corporation shall be void in law; and any trustee voting or acting against this provision of the charter, or any other officer or agent, shall not in any way legally bind-the board of trustees of the institution, they have superseded their authority and can only assume individual and personal responsibility and the record of this charter in Platte county, Missouri, shall be legal notice thereof to all.”

From the beginning of the college it has subsisted on donations from various sources helped out by the labor of the students in its various industrial departments. Many of the donations have come with specific directions from the respective donors as to the particular purpose to which they are to be devoted, and about them there is no difference of opinion as to how they are to be used or applied. But there are, also many donations which have come without any designation by the donors of the purpose for which they are to be used, and it is in reference to these that the difference in opinions has arisen. On the part of the minority of the board of trustees it is contended that the charter means that donations of the last-named class must be invested in the endowment fund and only the interest arising therefrom can be used in defraying the expenses of the institution, while the majority are of the opinion that the principal of such donations may be used when necessary to defray general expenses of the college. The trial court adopted the view of the minority and held as follows: “And the court further finds from the pleadings and the evidence that the board of trustees of Park College now holds funds •aggregating about two hundred and fifty thousand dollars, which have been donated to it without any restrictions or directions by the respective donors as to the use to be made thereof, and that other funds may be similarly donated without restrictions or directions as to the use to be made thereof. It is the decree of the •court that it was and is the true intent and meaning of said charter that all such funds, so donated, shall become part of the permanent funds of the college; that no part of the principal thereof shall be used or •expended, but the same shall be loaned or invested so as to produce interest or income, which interest or income only shall be used or expended by said board of trustees as they may deem for the best interest of the college.” Prom that decree this appeal has been taken.

In interpreting a clause in any written instrument it is well to read the whole instrument and derive light from its general controlling purpose, if we can.

Section 3 of this article declares that “The board of trustees shall have oversight, approval and direction of all endowment funds, of all real estate and personal property, and of all loans made of them.” Then it proceeds to mention the character of the securities in which the funds may be invested.

Quotations are made in one of the briefs from section 4 as throwing light on the subject; that section is as follows: “It is the earnest desire of the friends of this institution that it be established and built up hy wisdom, and stand forever and go on improving like the older institutions of Europe and America. To accomplish this purpose it is suggested that the board of trustees look most critically into the way things are going and make wise provisions for future contingencies; if any trustee neglects such care and caution, request him to resign and appoint another. It is a positive wrong to be indulgent to incapacity or inefficiency, to idleness, wastefulness or any other unfitness. Let the eyes of these guardians pierce every nook and corner and thereby insure wise and skillful management of the institution. Let them provide the best instructors and make the best provisions for the institution their funds will permit, going no further. Let them stop all leaks, stir up the indolent, get honest work done, and make purchases as far as practicable when prices are lowest, for ‘there is a time to get.’ In summer prepare and lay up for winter. Let them secure every trust, promptly discharge every trustee, officer, agent, or employee, and have the business, work and instruction done by as few men and at as small cost as possible consistent with the true interests of the institutions, without favor or partiality, remembering that the Lord’s work must be done better than our 'own.”

' At or about the time of the incorporation, Mr. Park, the founder, executed a deed of gift to the corporation conveying certain land described by metes and bounds “in or near Parkville” in Platte county, on which was situated a college building, one that had been in use as such before the incorporation. In the deed it was specified as the consideration that the grant was made for thé educátional purposes as set forth in the charter, that the principles of the college were to be non-sectarian but evangelical, and that a majority of the board of trustees were at all times to be members of the Presbyterian church, holding the Westminster Confession as containing the true system of faith and doctrine; that should the trustees fail to carry out the purposes for which the conveyance was made and observe its conditions, then the deed assumed to confer on a court of equity the jurisdiction to compel them to do so, or to remove them and appoint others having the prescribed qualifications. The property conveyed by that deed with the personal property consisting of the then college equipment was all the means that were at the disposal of the trustees with which to carry on the work for which the college was chartered. There was then no endowment fund or fund designated for any purpose, no income and no ready money. “There was the necessary furniture for a students’ dormitory and a meager equipment for college purposes.” The college was started on the hope that benevolent people could be found who. would contribute the means to carry on the good work, and this hope was realized during the first year after the incorporation when about $8000 was collected from such persons, and ninety-four or ninety-six students were maintained, and from that time on and up to the trial of this suit that hope has been realized and the college has grown. In 1879 the corporation’s college buildings were worth about $15,000, now it owns buildings worth over $225,000 ; then it had no endowment or other permanent fund, now it has such funds amounting to several ¡hundred thousand dollars, yielding interest income of over $15,000, but never from its beginning to the day of the trial had the income or interest been sufficient to defray the necessary expenses of the institution, but that income was helped out by appropriating to defraying those expenses money from donations that had come without any designation from the donors as to how it should be used. Except so much of them as were used to defray necessary expenses, those donations have been added to the endowment fund.

The foregoing facts do not afford a solution of the question, but they do show how the majority of the board of trustees have interpreted the clause of the charter in question from the beginning, and the condition of the affairs of the corporation at the start shows how the framers of the charter must have understood the language used in this now disputed clause, else they would probably have indicated how the institution should start and go until an endowment fund could be raised.

In one of the briefs, referring to the charter, the learned counsel says: “It is unique in this: That drafted, as it was, by the founder, a man not familiar with such work, it possesses every essential element of a perfect constitution: Clear and unmistakable in its terms, yet it allows elasticity that has made it entirely practical.” We agree with so much of this comment as indicates that the charter was drawn by “a man not familiar with such work, ’ ’ but that the powers conferred on the board of trustees or that the limitations on those powers are stated in clear and unmistakable terms we do not agree. It was not the work of a lawyer or of one accustomed to writing documents with the expectation of having the words employed undergo judicial interpretation. Take the language ol section 4 for example; it is full of beautiful and eorhmendable sentiment and it is useful in the form of advice to the trustees, but as to powers given, or limitations on such powers, it throws but little light; the advice given is as applicable to the trustees in the performance of their duties prescribed by the charter, as interpreted by the majority, as it is to their duties as interpreted by the minority. It is good admonition under all circumstances and, so far as shown by this record to the contrary, it has been faithfully followed.

Section 2, which is the one concerning which there is this controversy, is very emphatic in its declaration that the trustees shall make no debt against the corporation, and it declares as a matter of law that any claim against the corporation or its property shall be void. One familiar with the law of corporations would hardly have expressed it in that way. Section 981, Revised Statutes 1879, now section 3442, Revised Statutes 1909, authorizes the organization of a corporation for a certain purpose and with certain conditions which corporation when organized would not be liable for any debt or pecuniary obligation whatever, and doubtless the writer of this charter had before him that section, for some of the language used seems to have been taken therefrom; but this is not the kind of corporation authorized by that section and does not profess to be. There is no question raised in this record as to the meaning’ of that clause in the section 2 which declares that all claims against the corporation shall be void, and therefore what is above said is not intended as expressing any opinion thereon, but the court is asked in the petition to define the personal liability of the trustees when acting in good faith in the management of the corporation or the expenditure of its funds. In that connection the petition states that difficulty has sometimes been experienced in securing otherwise desirable persons to act as trustees for fear of incurring personal liability. The trial court in answering that question construed the charter to mean that no personal liability was incurred when the trustees acted in good faith, but that “in contracting debts and creating encumbrances on college property their act in so doing shall be ultra vires and void, so far as binding the permanent funds of the college is concerned.” If that is the correct view of the law it would appear that if a debt is incurred the corporation is not bound and the individuals are not bound unless they act in bad faith. We refer to this now only to show how far the language of this section is from that clearness and precision which is claimed for it.

We come now to the main question in the case. Section 2 starts out with forbidding the trustees to contract any debt against the corporation or to mortgage or otherwise encumber any of its property, but shall hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships, scholarships or other funds, preserving them in perpetuity, using only furniture, stock, lands and buildings and the interest of the funds; handing them down to their successors forever; and all claims against the above named property shall be void in law, ’ ’ etc. The clause forbidding the incurring of, debt and the words just quoted are embraced in one sentence and convey but one complete thought. The sentence begins and ends with the thought of forbidding the incurring of debts, all else in the sentence is in furtherance of that thought. The words expressing the initial thought are followed by and connected with the words last quoted by the conjunction “but.” The meaning of the word “but” varies somewhat according to the context. According to Webster it is used to mean “except,” and also sometimes to mean “on the contrary, on the other hand, ’ ’ and it was probably used in the latter sense in this context, that is, it was intended to say that the trustees should incur no debt and create no mortgage or lien, on the contrary they should hold inviolate the property, etc., “using only furniture, stock, lands and buildings, and the interest of the funds.” There is no grammatical connection between the first part of the sentence forbidding the incurring of debt and the part following the conjunction “but,” unless it be that the latter has reference to the topic stated in the former. Whichever meaning we give to the conjunction “but,” whether “except” or “on the contrary,” we must go back to the first part of the sentence to learn what the words following “but” mean. The word “but” in that connection was not intended to begin a new sentence or introduce a new topic. The sentence, taking all its parts together, means that the trustees shall not jeopardize the property by incurring debts or creating mortgages “but” shall preserve the same unbroken, and in place of incurring debt for any purpose they may use, for that purpose, only the income from the property and the interest from the funds, and beyond that what cannot be done without going in debt must be left undone. It was debt that was feared and its consequences. Under that clause the trustees were forbidden to incur debt even for the necessary current expenses of maintaining the college. But the using for necessary current expenses, money given to them by donors without any direction as to the purposes for which it was to be used, would not be going in debt, and if we should interpret that sentence to mean that the trustees should not only not go. in debt for such purpose, but should also not use for such purpose money so given, we would introduce a new topic into that sentence, and put a limitation on the powers of the board not indicated by the' language. The language used shows that although in 1879 when the first charter was obtained the corporation had no funds, yet the organizers expected to accumulate funds, for they use the words “endowment funds, professorships, scholarships and other funds.” And it is for the protection of those funds that the language in question is used. Those funds are to be held intact and only the interest from them used. Anyone familiar with the affairs of institutions of this kind knows the meaning of the terms, endowment fund, professorships and scholarships; they are terms indicating permanent investments for particular purposes or money designated to be so invested or held for a particular purpose. The limitation is on the use of the property and funds; the language is: “hold inviolate all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships, scholarships or other funds, preserving them in perpetuity, using only furniture, stock, lands, and buildings and the interest of the funds.” The funds specified are such as are well known to be permanent in character, endowments, professorships, scholarships, and the general words “or other funds” following in that connection mean other funds ejusdem generis. Even if the word fund could ever be construed to mean money in an unlimited sense its use in this sentence forbids that construction, for here it is used in the specific sense of a permanent fund, “endowment fund, professorship, scholarship,” et omnia ejusdem generis. But ■our attention is called to the word “moneys” used in that connection; the context is, “all furniture, stock, assets, lands, buildings, moneys or endowment funds, professorships,” etc. The word moneys is connected with the words endowment funds by the conjunction “or.” The word “or” has two significations. According to Webster it may be used to convey the idea of an alternative, that is, “you may read or you may write. ... It corresponds to either. ... It often connects a series of words or propositions presenting a choice of either; as, he may study law or medicine or divinity or he may enter into a trade.” The word was evidently not used in that sense in this connection; the author of the instrument did not mean to say that the board of trustees should preserve intact ■either the moneys or the endowment funds, one or the -other, as they might choose. But the same great author above quoted goes on to say that the conjunction “or” may be used to join different terms expressing the same thing or idea; as, “this is a sphere or globe.” That is the sense in which the word “or” is here used; the word moneys was used by the author of the instrument as synonymous with the word endowment funds, professorships and scholarships. Money ■does not become an endowment until it is either set apart or at least designated for that purpose. Moneys that are given to this institution designated for a particular purpose, as for an endowment fund, a professorship1, a scholarship or other purpose of like character, cannot be used for any other purpose without violating the terms of the charter, but money given without any designation of purpose may be used for such purposes as the board of trustees deem best for the good of the college. And judging the future by the past the benevolent patrons of this institution need have no fears of. the misappropriation of their gifts, but even if unlawful use of them should be made, or attempted, the courts of the State are strong enough to right or prevent the wrong.

The evidence shows that a large part of the money and properties belonging to the corporation are carried in the name of the secretary of the board of trustees; the explanation given for that is that owing to the restriction in the charter concerning the incurring of debt and creating of liens, etc., it became necessary to do as was done. We express no opinion on that subject, because there is no question of that kind raised in the pleadings; we mention it only to show that we have not overlooked it. But whilst the-fact is adversely criticised in one of the briefs for the respondent, no dishonest purpose or of concealment of the fact or loss to the corporation is suggested.

There is a prayer in the petition that the court construe that clause in section 1, article 3, referring to-the power of the board of trustees to discharge any trustee, officer, agent or employee of the corporation, but there is no suggestion of any disagreement as to-the meaning of that clause, and there is nothing obscure about it, therefore we see no use in discussing it..

One other point remains to be mentioned. The-petition states that a doubt has arisen among the members of the board of trustees as to their being personally liable for their acts in the management of the-affairs of the corporation and particularly in the expenditure of its funds. In answering this question the court does not undertake to say what personal liability, if any, a member of the board of trustees would incur in favor of a third person under the circumstances mentioned, because to do so would in effect forestall or prejudge a case not yet arisen and affect the rights of persons not parties to this suit. But as between the individual trustee and the corporation it is not improper to define their respective rights and liabilities. By accepting the office of member of this board of trustees the individual enters into an implied contract with the corporation that in the exercise of tbe power that office confers on Mm be will faithfully observe and obey the mandates of the charter, and he becomes personally liable to the corporation for any breach of that implied contract, if the corporation should be damaged thereby. The fact that he may have acted in good faith would be no’ defense if he committed a breach of the contract. But it would be no breach of the contract if the transaction was one calling for the exercise of his judgment and he exercised that judgment in good faith, although it should turn out to have been bad or mistaken judgment. For example, this charter expressly forbids the trustees creating a debt on the credit of the corporation; they are given no discretion on that point, therefore, if the board should take such action as created such a debt it would be a breach of the implied contract and such of the trustees as created the debt would be liable to the corporation for the injury, if injury should result. But, again, for example, if a proposition should come before the board to purchase for the use of the college certain property or procure certain conveniences, as water, light, etc., and the trustees in good faith should exercise their best judgment and make the purchase, or obtain the object proposed, paying for it out of money belonging to the corporation not devoted to any other special purpose, they would not be liable, even though it should turn out that the purchase was a bad one and loss entailed on the corporation, and what is here said of a purchase would apply to any other investment made in good faith.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree construing the charter in question according to the law as in this opinion expressed, and entering judgment that the corporation pay the costs of this suit, both in this- and the circuit court.

All concur, except Wood-son, J., not sitting.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    GEORGE A. LAWRENCE et al. v. BOARD OF TRUSTEES OF PARK COLLEGE et al., Appellants.
    Division One,
    May 31, 1910.
    Appeal from Platte Circuit Court. — No». Alonzo D. Burnes, Judge.
    Reversed and remanded (with directions)..

   VALLIANT, J.

— This is a suit by the minority against the majority of the trustees composing the Board of Trustees of Park College and presents for judgment the interpretation of the same provisions of the charter that are considered in the case of Board of Trustees of Park College v. Attorney-General, reported at page 514. There are some questions raised by the defendants in reference to the right of the plaintiffs to maintain the suit, but since the merits of the controversy are settled in the other case it is useless to take up the minor points in this ease. The judgment of the circuit court was substantially the same in this as in the other ease and for the reasons set forth in the opinion in that case the judgment in this is reversed, and since there will be no use in entering two decrees to the same effect in the same court concerning. the same matter this cause is remanded to the circuit court with directions to dismiss the plaintiffs’ bill and render judgment against the corporation for the costs, both in this and in the circuit court.

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


author: WOODSON, J.

text:
    SCOTT GRANT PEAK et al., Appellants, v. FRANCES PEAK et al.
    Division One,
    May 31, 1910.
    1. MORTGAGE: Purchase by Life Tenant: For Benefit of Remaindermen. The purchase of land at a foreclosure sale under a mortgage or deed of trust, by a life tenant, will be deemed to have been made for the benefit of the remaindermen, if they contribute their portion of the purchase money within a reasonable time. And if the life tenant purchase through an intermediary, to whom she furnishes the money bid by him at the foreclosure sale, and who without further consideration conveys to her, the rule is the same.
    2. -: -: -: Remedy. In such case the trial court should ascertain the balance due under the mortgage placed thereon by the testator and bought by the ife tenant, together with the amount due her upon an unsecured note executed to her by testator, and the amount each of the remaindermen should pay her in order to redeem their interest in the lands, and fix a reasonable time in which they might redeem.
    3. -: -: -: -: Subsequent Debt. But the note secured by a deed of trust placed upon the land by the life tenant after her purchase at the foreclosure sale under the other made by the testator, should be charged against her.
    4. -: -: -: -: Tender: Offer to do Equity. The remaindermen will not be barred from redeeming and recovering their land bought by the life tenant at a foreclosure sale under a deed of trust placed thereon by their common testator, simply because they did not tender to the life tenant the amount due by each of them upon the mortgage debt. In equity, if the bill contains a general offer to do equity in conformity to the decree of the chancellor, that will suffice without making an actual tender.
    Appeal from Pike Circuit Court. — Eon. David H. Eby, Judge.
    Reversed and remanded..

      Ball & Sparrow and Dempsey & McGinnis for appellants.
    (1) Prances Peak, life tenant under the will of her deceased husband, purchased the land in controversy for all parties in interest. Allen v. DeGroodt, 105 Mo. 442; Cockrill v. Hutchinson, 135 Mo. 67; Hinters v. Hinters, 114 Mo. 26; Allen v. DeGroodt, 98 Mo. 159. (2) The court should have ascertained the amount appellants should he required to pay in order to save their interests in the lands. Tender was not necessary. Kline v. Yogel, 90 Mo. 239; Jopling v. Walton, 138 Mo. 485; Mahoney v. Nevins, 190 Mo. 360. (3) Appellants stood related to the deed by the trustee to Sisson and by Sisson to Prances P'eak, as strangers, and the recital as to consideration constituted no evidence. Allen v. Kennedy, 91 Mo. 324. (4) A life tenant must keep, down interest on mortgages, etc. Tiedeman on Real Property, sec. 66. Same section states rule for apportionment as between life tenant and reversioner when life tenant pays mortgage. 4 Kent Com. (11 Ed.), p. 80, side 75.

      Jesse B. Jones and J. D. Eostetter for respondents.
    (1) Appellants ignore Prances Peak’s marital interests in her husband’s homestead as his widow. Regardless of the will devising to her a life estate, she was entitled to the following rights and interest in the farm in controversy: 1st — She was entitled to dower, which was a life estate in a third interest. 2nd — She was entitled to homestead, which was a qualified life estate in the whole, provided it did not exceed in value $1500, and it clearly did not, even without the McCune first deed of trust and her own $300' second deed of trust on the farm being taken into consideration. 3rd —She was entitled to her quarantine rights until dower he assigned, which was never done. As to the homestead of the widow, it has been expressly held that a husband cannot deprive his widow of that estate by will, for it is not his to will. It is an estate which the law vests in his widow and it cannot be controlled by his will at all. Roekley v. Roekley, 97 Mo. 76. Neither can the widow be deprived of dower by will unless a quid pro quo be given. So it would seem that even conceding that there was some evidence that Prances Peak agreed to cancel her $300 note against her husband, on condition that he would devise to her a life estate in the farm, the promised devise constituted no consideration, because it was giving her only what the law would give her in any event. Prances Peak as mortgagee in possession after condition broken (as she was after her $300 mortgage debt became due), was entitled to buy in under any outstanding incumbrance and thus protect her rights as morfcgagee, regardless of her position as life tenant under her husband’s will. While she became a life tenant under the terms of her husband’s will, still she was also a mortgagee and was in possession after condition broken. The step-children would be compelled to redeem from the $300 mortgage debt before they would have a right to redeem from the McCune deed of trust debt, in any event. Martin v. Turnbaugh, 153 Mo. 172; Hubble v. Vaughn, 42 Mo. 138; Johnson v. Houston, 47 Mo. 227; Honaker v. Shough, 55 Mo. 472; Harrington v. Portner, 58 Mo. 460; Hunt v. Sellek, 118 Mo. 588; Priest v. St. Louis, 103 Mo. 657; Jackson v. McG-ruder, 51 Mo. 59; McCormick v. Pitzmorris, 39 Mo. 34; Howard v. Thornton, 50 Mo. 291. (2) There is no legal or moral impediment against the right of a life tenant to buy the remainder interest at a sale under a deed of trust. The life tenant is not a co-tenant with the owners of the remainder interest. Remaindermen have a perfect right to buy the estate of the life tenant when sold under execution, and the life tenant has the same right to purchase the remainder estate when sold either under execution or a’ deed of trust sale. Martin v. Castle, 193 Mo. 183. In the case at bar Frances Peak was not a party to the deed of trust given to McCune. She was under no personal ■obligation to pay any portion of the same. Yet she did in point of fact furnish $300 of the money to her husband, which was-paid thereon, and after his death made other payments out. of her own means, and ■sacrificed over one-half of her $400 absolute property as widow, and all of her year’s allowance, in order that the administrator might use these funds in liquidating the liens, and allowed demands against the estate- of her deceased husband, and thus prevented a sale of the equity in said land under order of the probate court for the purpose of paying debts. Plaintiffs in their petition do not proffer to pay any of the costs ■or expenses of sale, neither do they offer to reimburse Frances Peak for her large outlays in reducing the note to $236.40. All the equity is .on the side of the widow, Frances Peak.
   WOODSON, J.

The legal propositions in this case will be better understood if we set out the pleadings.

The petition filed herein is as follows (Formal parts omitted):

“Plaintiff states that George W.. Peak departed this life at said county of Pike on the--day of July, A. D. 1901, testate, having made a will which was duly admitted to probate by the probate court within and for the county and State aforesaid. That the estate of said deceased was duly administered in and by said probate court, and final settlement thereof made.

“That the said George W. Peak left surviving him his widow, the said Frances Peak, and his children and issue born of a former marriage other than that with the said Frances Peak, viz: the said Scott Grant Peak, Mollie Purnell, wife of George Purnell, and Thomas William Peak, all of whom are beneficiaries named and provided for in and by the said will of said deceased.

“That the said Thomas William Peak is a person of unsound mind and incapable of managing his affairs and, in consequence thereof, is confined as a patient in the insane asylum at the city of Fulton, in Callaway county, in said State-.

“That in and by his said will the said deceased devised to his said wife and widow, for and during her natural life, the following described real estate situate, lying and being in the county of Pike and State of Missouri, to-wit: The west half of the northwest quarter and the northwest quarter of the southwest quarter of section four, in township- fifty-four north, range four west of the Fifth Principal Meridian, containing one hundred and twenty-four and eighty-nine one hundredths acres, more or less, to be held, used and enjoyed by the said Frances Peak for and during her natural life, and her estate therein was limited to that period and subject to- such life tenancy; he devised the said lands in remainder in fee to his said children as follows:

“To the said Scott Grant Peak, the south forty-six acres of said lands; to said Mollie Purnell the dwelling house and premises and thirty-one acres north thereof, and to said Thomas William Peak the north forty-six acres of said lands.

“That in the month of December, A. D. 1883, the said George W. Peak and Ellen Peak, his then wife, executed a deed of trust in the nature of a mortgage upon the above described lands to William G. McCune as trustee to secure to John McCune the payment of a promissory note .for $840’; that divers payments were made on said note, so that the sum of two hundred and fifty dollars thereof remained unpaid and due thereon at the time of the death of the said George W. Peak, which said note and deed of trust the said Frances Peak became tbe owner and holder of after the death of her said husband George W. Peak and continued thereafter to hold the same; that on or about the 27th day of November, A. D. 1905, contriving and designing to cheat and defraud the said children of her deceased husband, parties herein, out of their remainder interests in said lands, said Frances Peak caused a pretended sale of said lands to> be made, under said deed of trust, and induced and procured one L. S. Sisson to become the purchaser thereof for her at the pretended sale so had, and the said Sisson immediately thereafter conveyed said lands to said Frances Peak, without having paid anything of value for said lands or received anything of value therefor, and with full notice of the rights and interests of the plaintiff and the said Thomas William Peak therein.

“That on the 28th day of November, A. D. 1905, the said Frances Peak executed a deed of trust in the nature of a mortgage, conveying said lands to said J. D. Layne to secure to said Lem T. Patterson the sum of three hundred and twelve dollars, expressed in a promissory note in said deed described; that both the said J. D. Layne and Lem T. Patterson had notice of the rights and interests of these plaintiffs and of the said Thomas William Peak in and to the said lands at the time said three hundred dollars were loaned and said lands taken as security therefor.

“That the said Frances Peak received said conveyance of said lands and now holds the same subject to all of the rights and interests therein, of these plaintiffs and the said Thomas William Peak, that éxisted prior to said pretended sale under said deed of trust so made to said William G. and John McCune.

“Plaintiffs further state that they are ready, willing and here offer to pay their proportion of the balance of the principal sum of said note so made to said John McCune remaining unpaid at the time of the death of said George W. Peak, as soon as the same is ascertained, fixed and determined by the court; that the said three hundred and twelve dollars so borrowed of said Patterson ought to be charged against the interest in said lands of the said Frances Peak; that said lands are of the reasonable value of three thousand dollars.

“Plaintiffs therefore pray that the rights and interests of the respective parties be investigated, ascertained and determined; that the plaintiffs Scott Grant Peak and Mollie Purnell be adjudged, to be the owners of the respective tracts of land devised to them as aforesaid, subject to the life tenancy therein of the. said Frances Peak, and the lien thereon for their proportion of the said debt of two hundred and fifty dollars, with leave to pay off and discharge the same; that the said money so borrowed of said Patterson, be ^charged against the interest of said P'rances Peak; that said pretended sales of lands be held for naught ; that a guardian be appointed for said Thomas William Peak; that his rights and interests in said lands be protected and that plaintiffs have all such orders and decrees as may be deemed meet and proper and costs herein.”

The separate answer of Prances Peak is as follows :

• “Now at this day comes Frances Peak, defendant^ and for her separate answer to plaintiff’s petition filed in the above entitled cause, denies each and every allegation therein contained except such as are hereinafter specifically admitted to be true.

“Defendant admits the death of George W. Peak and that he died testate; that his will was admitted to probate and that his estate was administered and finally settled as alleged in plaintiffs’ petition; that said George W. Peak left surviving him this defendant as his widow, and the said Scott Grant Peak, Mollie Purnell and Thomas W. Peak, his children, all of whom are named in said will as beneficiaries thereunder.

“Defendant further admits the execution of the deed of trust by the said George W. Peak and Ellen Peak his then wife, under date of December 15, 1883, conveying to William G. McCune as trustee the lands described in plaintiffs’ petition to secure to John Mc-Cune the payment of a promissory note therein described for the sum of eight hundred and forty dollars with interest from date at the rate of ten per cent per annum, compounding annually.

“Defendant further answering, says that on March 4, 1895, she loaned to the said George W. Peak the sum of $300' for which he gave to this defendant his negotiable promissory note of even date therewith, drawing eight per cent interest, per annum, compounding annually, and secured said note by a deed of trust on the lands described in plaintiffs’ petition, which said deed of trust was duly recorded in volume 104, at page 174, in the recorder’s office of Pike county, Missouri, on which said debt the said George W. Peak paid the sum of $24 on March 4, 1896, and that the remainder of said debt with accrued interest was not paid until the sale of the lands in question under the McCune deed of trust, when the same was paid out of the proceeds of the sale under said deed of trust given to John McCune, after satisfying the amount due on the John McCune note and costs of said sale.

“Defendant further answering, says that after the death of George W. Peak, she paid out of ter own money on the John McCune note the following amounts, vis: August 1, 1903, $50; August 10, 1904, $50, and September 14,1905, $220.

“Defendant further answering says, that during the lifetime of the said George W. Peak, she loaned to the said George W. Peak divers sums of money, amounting in the aggregate to six hundred dollars, which money was used by him, the said George W. Peak, in and about the lands in question and for tbe improvement of same.

‘ ‘ Defendant asks therefore that she be subrogated to the rights of the mortgagee under the John McOune deed of trust for the payments so made by her on the indebtedness therein secured and that all sums of money so loaned by her to the said George W. Peak be taken into account by the court in the consideration and determination of the issues involved and further prays the court for all other and proper relief and for such judgments, orders and decrees as to the court seems just and proper.”

The answer of Lem T. Patterson and J. D. Layne reads as follows:

“Now at this day come Lem T. Patterson and J. D. Layne and for their separate answer to plaintiffs’ petition filed herein, deny each and every allegation therein contained, except those hereinafter specifically admitted to be true. Defendants admit that on the 28th day of November, 1905, P'rances Peak borrowed of Lem T. Patterson the sum of three hundred and twelve dollars, and secured the same by a deed of trust on the premises described in plaintiffs’ petition in which J. D. Layne was named as trustee; that said sum of money was loaned to the said Prances Peak in good faith. Defendants further deny any knowledge of fraud as alleged in plaintiffs’ petition, and also deny notice of any alleged rights and interests of the plaintiffs and of Thomas Peak in the lands aforesaid and as stated in plaintiffs’ petition.

“And now, having fully answered, defendants ask to be discharged with their costs.”

Answer of Joe Tapley, guardian ad litem for Thomas William Peak, reads as follows (Caption omitted):

“Now comes Thomas William Peak, by his guardian ad Utem, and for his answer to plaintiffs’ petition states that he is not in possession of facts as alleged in plaintiffs’ petition, sufficient to form a belief as to the allegations therein set forth and asks the court to require strict proof of same.”

The amended reply is as . follows. (Caption omitted):

“Plaintiffs, in order to conform to the facts proven, for their amended reply to the separate answer of defendant Frances Peak, deny each and every allegation thereof, except such as are hereinafter stated.

“They admit that George W. Peak made a deed of trust on the lands in controversy, to secure to said Frances Peak the payment of a promissory note for $300, and secured same by deed of trust on said lands, but say that said promissory note was paid off, discharged, delivered up and cancelled in the lifetime of said George W. Peak, the consideration for such discharge and cancellation being this: the said George W. Peak and Frances Peak entered into an agreement by the terms of which the said Frances agreed to discharge, cancel and treat as paid off the said note and deed of trust, if the said George W. Peak would by his will devise all of the said lands in controversy to the said Frances for and during her natural life; which said devise was so made and the said note and deed of trust were by said Frances delivered up to said George W. Peak, cancelled, paid off and discharged. And for further reply plaintiffs say that said alleged promissory note hereinbefore mentioned, and defendants ’ alleged cause of action thereon, did not accrue within ten years before’the institution of this suit and that the same is barred by the Statute of Limitations.”

A trial was had, and at the conclusion of the evidence the court found the facts to be, and rendered judgment, in the cause as follows;

“The court finds that George W. Peak died in July, 1901, testate, having made a will which was duly admitted to probate by the probate court within and for the county of Pike, in the State of Missouri; that the estate of said deceased was duly administered in and by said probate court and final settlement thereof made; that said George W. Peak left surviving him his widow, the said Frances Peak, and his children and issue born of a former marriage other than that with the said Frances Peak, vis.-. Scott Grant Peak, Mollie Purnell (wife of George Purnell),.and Thomas William Peak; that said widow and children were beneficiaries named and provided for in and by said will; that said Thomas William Peak at the date of the institution of this action was a person of unsound mind and incapable of managing his affairs and in consequence thereof was confined as a patient in the insane asylum, at the city of Fulton, in Callaway county in said State; that in and by said will said George W. Peak devised to his said widow, for and during her natural life, the following described real estate situate in the county aforesaid, to-wit:

“The west half of the northwest quarter and the northwest quarter of the southwest quarter of section four, in township fifty-four north, range 4 west of the Fifth Principal Meridian, containing one hundred and twenty-four and 89-100' acres, more or less, to be held, used and enjoyed by the said Frances Peak for and during her natural life and her estate therein was limited to that period and subject to such life estate. Said lands were devised in remainder in fee to said children as follows: To said Scott Grant Peak, the south forty-six acres of said land; to said Mollie Purnell, the dwelling house and premises and thirty-one acres north thereof; and to said Thomas William Peak, the north forty-six acres of said land.

“That in the month of December, 1883, the said George W. Peak and Ellen Peak, his then wife, since deceased, executed a deed of trust in the nature of a mortgage upon the above described lands to William G. McCune as trustee to secure to John M. McCune the payment of a promissory note for $840, with interest from date thereof at the rate of ten per cent per annum, compounding annually. That on the 4th day of March, 1895', Prances Peak, then the wife of George W. Peak, in order to assist her said husband in the payment of said note loaned him the sum of $300, for which he gave her his negotiable promissory note of date March 4, 1895, drawing eight per cent interest per annum, compounding annually, and secured by deed of trust on the lands in controversy, which said deed of trust was duly recorded in volume 104 at page 174 in •the recorder’s office of Pike county, Missouri. There is no evidence of any payment made by said George W. Peak on said $300 note, nor is there any evidence of the loan by Prances Peak to her said husband of any money other than said sum of $300'. That George W. Peak made payment on said $840 note as follows: July 5, 1893, $125'; March 1, 1893, $300; October 15, 1898, $175. That after the death of her husband the said Prances Peak made payments on said $840 note as follows: October 1,1903, $50; August 10', 1904, $50, and September 14,1905, $22. That after the execution of said $840 note John McCune, the payee therein, died, and Guy McCune, a son of . the payee and "a distributee of his father’s estate, became the owner of said note.

“That there remained due on said $840 note at the time Guy McCune became the owner thereof, the sum of $630. None of said respective payments made by Prances Peak exceeded the interest due at the time the payments respectively were made, and as it was the duty of the life tenant, Prances Peak, to pay such interest accruing after she became such life tenant, she is not entitled to any contribution from tbe other heirs, or reimbursement therefor. That Frances Peak, either as a life tenant or as the owner of the junior incumbrance securing the $300' note, had the right to redeem the land from said $840' incumbrance. For the purpose of so doing she in the fall of 1905 procured the transfer and assignment of said $840' note to her by said Guy McOune and, as the owner and holder of the same, duly caused the deed of trust securing the same to be foreclosed; that in so doing she was represented by Judge R. L. Motley as her agent and attorney; that the date of said foreclosure sale was November 27, 1905, at which time, as averred and admitted in the petition, Frances P'eak was the owner and holder of said $840 note. That the acquisition by said Frances Peak of said $840 note incumbrance did not, as between her and the owners of said remainder estate, cause any merger of said lien with her life estate..

“That the consideration of said assignment of said note of Fiances Peak was the sum of $236.40 paid by her to said Guy McOune, who accepted said payment as the amount due on said note at the time of its said assignment, although there is much uncertainty in the evidence as to the amount actually then due. That before the foreclosure of said deed of trust securing said $840 note any or all of said remainder-men had the right to redeem from the same and upon so doing to enforce contribution from the life tenant, but such right was ended by the foreclosure as aforesaid.

“As stated before, the plaintiffs do not seek to redeem from a valid sale under a deed of trust to the assignee of the beneficiary under such deed, but repudiate the sale in toto, and ask that it be set aside on the ground of fraud charged to have been- perpetrated against them by Frances Peak, and that upon the same being set aside, they then be permitted to redeem. The remaindermen were not tenants in common with Frances Peak, the life tenant, and said life tenant had a perfect right to buy the remainder estate in said lands and in so doing acquired such interest, provided the said trustee’s sale was not fraudulent or otherwise invalid. That the said acquisition of said lands by said Prances Peak under said sale did not enure to the benefit of said remaindermen to the extent of their said interest as remaindermen. If we concede that the plaintiff had the choice of either of two inconsistent remedies, namely, either to recognize the regularity of and validity of the trustee’s sale as made and proceed as assignee of the grantor, George W. Peak, to redeem therefrom as provided by statute, or to repudiate the sale for alleged fraud and ask to redeem from the incumbrance itself after having the sale set aside, the plaintiffs have elected to pursue the former equitable remedy; that at said sale one L. S. Sisson bid in said lands at the price and sum of $971, which said purchase price was by said Sisson duly paid to and received by said trustee, who thereupon, on December 27, 1905, made and executed to said Sisson his the said trustee’s deed conveying to said Sisson the lands in controversy; and the said Sisson, on the 28th day of December, 1905-, by his quitclaim deed of that date, and for the expressed consideration therein of $971, released and conveyed said premises to said Frances Peak; that said trustee’s deed and said quitclaim deed were duly filed for record in said recorder’s office on the 28th day of December, 1905; that the recital in said trustee’s deed of the receipt by said trustee of said purchase price constituted primafacie evidence of such fact, and there is no evidence in the case to the contrary; that the greater weight of the evidence tends to show, and the court finds, that in bidding in said lands and accepting a deed to the same the said Sisson was acting for and as the agent of Prances Peak and that the amount paid to said trustee by said Sisson was in fact furnished by Frances Peale and that said Sisson bought with the knowledge of the rights and equities of the parties interested in said lands; that there is no evidence of any fraud on the part of Frances Peak as charged in the petition and the court finds such issue in favor of the defendants.

“The court further finds that said promissory note for $300 executed by George W. Peak to Frances Peak, as aforesaid, and secured by deed of trust as aforesaid, was neither paid off, discharged, delivered up, nor cancelled in the lifetime of said George W. Peak. There was no agreement between said George W. Peak and Frances Peak that said Frances Peak would discharge, cancel, or treat as paid off the said note and deed of trust if said George W. Peak would by his will devise all of the lands in controversy to said Frances Peak for and during her natural life; that the devise in said will of a life estate to said Frances was not made in consideration of any such agreement or any agreement; that there is some slight evidence tending to show that the disagreement between said George W. and Frances was over the payment of interest on the note; that at the time of such controversy there was a provision in the will of said George W., as then drawn, devising a life estate to said Frances, and that Geo-. W. at one time threatened that if said Frances did not destroy or cancel the note, he would change the provisions of his will.

“All of the parties testifying to such agreement were directly interested in the result of this suit; their evidence full of contradictions, uncertain and vague, disclosing under cross-examination that statements, if any, made by Geo. "W. and vital to the issue-were not made to or in the presence or hearing of Frances Peak, nor was the agreement so testified to the same agreement pleaded in the petition, and the subsequent recognition by said heirs of Frances- Peak’s right to satisfaction of her note weakens their testimony against her. Frances Peak, as a witness in the case, denied, as far as her competency as a witness ■permitted her to testify, the statements attributed to her by the adverse witness.

“The court farther finds that the parchase price received by said trastee was applied by him in payment of the balance then dae on said $840 note and in payment of the balance then dae on said $300 note, leaving a sarplas applicable to other purposes; that said Frances Peak, on the 28th day of November, 1905', executed a deed of trust in the nature of a mortgage conveying said lands to defendant J. D. Layne to secure to defendant Lem T. Patterson the sum of $312 expressed in a promissory note in said deed described; that each of said two last named parties had constructive notice of the title to said lands as held by the said widow at the date of the said last mentioned deed of trast and at the date of said trustee’s sale; that subject to the provisions of said last mentioned deed of trast the defendant, Frances Peak, is the owner in fee simple of all of the above described real estate and it is so adjudged and decreed by the court.

“And it is farther ordered, adjudged and decreed by the court that the plaintiffs are not entitled to the eqaitable relief prayed in the petition, nor has the defendant, Frances Peak, shown herself entitled to any affirmative eqaitable relief as prayed in her answer.

“And it is farther adjudged and decreed by .the court that the plaintiffs take nothing by their writ and that the defendants go hence without day and have and recover of plaintiffs their costs herein incurred or expended and have execution therefor.”

After moving unsuccessfully for a new trial, the plaintiffs appealed the caase to this court.

I. After carefully reading all the evidence introduced at the trial of this caase, we are satisfied that the learned trial court correctly found the facts to be as above stated, except we are of the opinion that the sale of the land in question under the $840 note and deed of trust, at the instance and request of Prances Peak, the life tenant and owner of the note, was a fraud upon the rights of the remaindermen, the children and devisees of George W. Peak, her deceased husband.

This question has been before this court frequently, and the uniform ruling has been that the purchase of land at a foreclosure sale under a mortgage or deed of trust by a life tenant will be deemed to have been made for the benefit of the remaindermen if they contribute their portion of the purchase money within a reasonable time. [Cockrill v. Hutchinson, 135 Mo. 67; Stitt v. Stitt, 205 Mo. 155; Rutter v. Carothers, 223 Mo. 631; Hinters v. Hinters, 114 Mo. 26; Allen v. DeGroodt, 105 Mo. 442; Same v. Same, 98 Mo. 159.]

Some of the foregoing cases were between co-tenants; and even in such cases this court has uniformly held that one co-tenant cannot legally buy in an outstanding title or encumbrance, and thereby defeat the rights of another co-tenant. Por stronger reasons the same rule should and does apply between the life tenant and remaindermen, because the former not only bears the confidential relation to the latter that one co-tenant bears to another, but also has the exclusive possession, care, control and enjoyment of the. entire estate, which in a large measure excludes the remainderman from protecting his own rights and interest in and to the land; whereas in a case between co-tenants all of them stand upon an equal footing.

We are, therefore, of the opinion that the trial court erred in holding that Prances Peak, in good faith and without fraud, purchased the land in controversy at the sale under the deed of trust. In violation of her legal duty she had the land sold for the sole purpose of defeating the remaindermen, and to thereby acquire the absolute title to the property.

II. Tlie next proposition presented for determination is, what is plaintiffs’ remedy in the premises?

This identical question came before this court in the ease of Stitt v. Stitt, supra. In that case the husband died, leaving one hundred and twenty acres of land. By will he gave eighty of it to his wife for life and in which she had a homestead. The other forty acres were encumbered with a mortgage for five hundred dollars, and as to that forty he died intestate, leaving other debts, amounting to seven or eight hundred dollars, with no personal estate. She was the executrix under the will, and obtained an order from the probate court to sell this forty, and was offered fourteen hundred dollars therefor, which she refused and asked sixteen hundred, but made no real effort to sell it. When the mortgage became due she had it foreclosed in order that she might become the purchaser of the land (as was done in the ease at bar) and at the sale she bought the land for five hundred and fifty dollars. In passing upon the right of the plaintiffs in that case to redeem from the foreclosure sale, this court, in speaking through Judge Lamm, said:

“In so far as the decree subrogated defendant to the rights of Knowles under the deed of trust, no fault can be found with it. They who seek equity must do equity. Decedent was seized of tract C, subject to that encumbrance. His estate, therefore1, may only retake the title cum onere. Thereby it is made to stand in its cast-off, former shoes, which is well enough. Equity does nothing grudgingly or by halves. Its outstretched arm corrects, but with loving kindness withal. Hence to the extent the widow lifted the burden of that incumbrance from the estate by her bid, to that extent she should be made whole. The rule of substitution is one of pure benevolence, and the facts and circumstances of this case afford a typical opportunity for the application of that rule.

“Defendant seeks to bring herself within the doctrine of those cases in which an administrator, owing no duty and having no power to protect the interests of creditors and heirs in the real estate of a decedent and dealing at arm’s length with all concerned, buys at an execution or foreclosure sale. Dillinger v. Kelley, 84 Mo. 561, is a sample of such cases; but that case and no well-considered case, carefully read, promulgates any rule inimical to this decree. Here the defendant was a trustee in the most exacting sense; for she had power and she had duty and had assumed the role of using the power in performance of that duty. Not only was she armed under the order of sale with power to do that duty, but in this instance ability to perform lay at her door, ready to her hand. Not only so, but she was placed in a most delicate and anxious position — a position watched by a chancellor with a solicitous eye, to be weighed and considered with a piercing and distinguishing judgment; because duty and power of performance were set over against self-interest. She set one in one eye and the other in the other. The love of money is the root of all evil; and when one is bound in a confidential relation it is of the very essence of things to see to it that the strident and clamorous voice of self-interest does not drown out the still, small voice of duty and conscience.

“ ‘No one,’ says Williams, J., in Tuggles v. Callison, 143 Mo. l. c. 536, ‘will be permitted to purchase and hold property as his own, where he has a duty to perform in relation thereto- inconsistent with his position as a purchaser on his own account, and so the cases all hold.’ Such purchase becomes of a poisonous character. The temptation existing, the correlative duty to remove it exists. In the case at bar the executrix could have sold tract C under the court’s order for enough to have paid the mortgage debt, together with all the debts at large of the estate and the cost of administration. With one hand she put away from her this duty, with the other she clutched the gain of violating that duty. Defended by the bulwark of a homestead claim to the residue of the real estate, she left the heirs and creditors to help themselves as best they may, with tract O cancelled as a debt-paying factor.

“Under the facts uncovered the trustee’s sale was conceived and consummated by her for purposes single to herself. To that end she dallied and coquetted with the situation as executrix under the court’s order of sale until such time as the evil seed she planted and watered could grow to flower and fruitage in' the trustee’s deed, thereby doing what she set out to do, viz., appropriate to herself the only debt-paying asset available and making it impossible for her to render a just, account of her stewardship. It is needless to cite authority to sustain the self-evident proposition that equity will grant relief by taking away from her a title tainted in that way. That was what the chancellor did below, and what he did meets our approval.”

The facts in that case did not make out as strong a ease as do the facts in the case at bar, for the reason that the sale there made did not involve the land in which the defendant owned the life estate, while in the case at bar, as before stated, the defendant Peak had the land, in which she owned thé life estate, sold under the deed of trust in order that she might become the purchaser thereof, and thereby cut off the remaindermen, who were not in so favorable a position to protect themselves as were the heirs and creditors of Stitt.

So, under this view of the case1, the trial court should have ascertained the balances due her, defendant Peak, on the $840 and $300 notes mentioned in the finding of the court, and the amounts each of the appellants should be required to pay her in order to redeem their interests in said lands, and should also have fixed a reasonable time in which they might redeem. The court should also have charged the $312 note, payable to Lem. T. Patterson, and the deed of trust securing the same against the interest of said Frances Peak in and to said land and not against the interest of appellants.

III. It is finally insisted by counsel for respondent that the bill states no equity, because appellants did not tender to the respondent the amounts due by each of them on said notes.

This insistence is untenable, for the reason that in equity the rule is, if the bill contains a general offer to do equity in conformity to the decree of the chancellor, that ■will suffice without making an actual tender.

This question has been so recently before this court and so ably discussed by our learned associate, Judge Lamm, in the case of Haydon v. Railroad, 222 Mo. l. c. 134, we deem it unnecessary to say more upon that subject than merely to quote his observations in that regard, which are as follows:

“It is argued the bill is obnoxious to the cardinal equity maxim that he who seeks equity must do equity; that it makes no offer to put defendant in statu quo ante, in that no tender or offer is made to return the $600 and costs paid under the compromise, but that the only offer is to credit that sum upon an unliquidated amount of damages, guessed off at $1500. Changes are rung in defendant’s brief on the foregoing contentions, but the pith of it all is as put by us.

‘ ‘ Can the demurrer to the introduction of evidence stand on such fact? If the case were at law, the contention would be sound beyond question; but it is in equity and the better doctrine seems to be that under a bill (good otherwise) containing a general offer to do equity the chancellor, as the price of his decree, may let conscience have full play in doing her perfect work in disentangling the relations of the parties, and in placing them where they were before as high as may be. Such is the doctrine of Whelan v. Reilly, 61 Mo. l. c. 569, et seq. and cases cited. That case was followed in Clark v. Drake, 63 Mo. l. c. 360. In Kline v. Yogel, 90 Mo. 239', the doctrine of the Whelan case was somewhat shaken. But in a later case, Paquin v. Milliken, 163 Mo. 79, the question was again up, our decisions were marshalled, distinguished and applied. The reasoning of the Whelan case was greatly corroborated and fortified by the exhaustive consideration given in the Paquin case, and the doctrine needs no new exposition.

“In leaving the matter we may refer to Shuee v. Shuee, 100 Ind. l. c. 481. In that case it was said: ‘It is urged that the court below should have sustained a demurrer to the bill, because it failed to show an offer to rescind on the part of the plaintiff before filing the bill, and it is argued that because it appears from the facts as found by the court, that no offer to rescind was made, nor to return the money paid as the consideration of the settlement, before the suit was commenced, the court should make no decree in plaintiff’s favor setting aside the settlement. It is always within the power of a court of equity, where its decree is invoked, to require, as “the price of its decree,” that the person invoking it shall submit to equitable, terms, and accordingly a chancellor always inquires concerning the equities which the plaintiff must do, in order that he may be entitled to the relief which he seeks. Whenever any benefit has been received under a contract which the court is asked to set aside, the court will fasten a trust on the conscience of the party, in respect of such receipts, and direct an account and repayment. ’

“Such, too, was the conclusion reached by all the judges in Haydon v. Railroad, 117 Mo. App. supra, l. c. 90 to 94 inclusive. ’ ’

We are, therefore, of the opinion that the judgment should he reversed and the cause remanded; and it is so ordered.

All concur.