author: WALKER, P. J. FARIS, J.

text:
    THE STATE v. WILLIAM CROFTON, Appellant.
    Division Two,
    July 16, 1917.
    1. REMARKS OP ATTORNEY: Reference to Defendant’s Failure to Testify Concerning Another Murder: Cured by Instructions. In his argument to the jury the attorney for defendant, being tried for murder, said that “the State has not attempted to prove that a killing was done by defendant in Iowa, because it did not happen.” Replying to this statement in his closing argument, the circuit attorney, among other things not impertinent, said: “And let me call your attention to this fact, that the defendant was on the stand and he did not deny the Iowa episode.” There was no evidence of the Iowa crime. Held, that, without more, the circuit attorney’s remark would have been prejudicial, but its harmful efflect was cured by an express direction by the court to the jury, at the close of the circuit attorney’s argument, not to consider' any reference to the alleged Iowa crime and not to be influenced thereby.

      2.. ORAL INSTRUCTION: Withdrawal of Evidence. An oral direction to the jury that there is no evidence before them that defendant had killed a man in Iowa and directing them not to consider any reference to such crime made by attorneys in the course of their inquiries or arguments, is not in the nature of an instruction and need not be in writing.

      Held, by FARIS, J., concurring, that the withdrawal of the evidence was in defendant’s favor, and in view of the statute (Sec. 5115, R. S. 1909) declaring that no judgment shall be stayed, arrested or in any manner affected “for any error at the instance or in favor of the defendant,” he cannot complain that the direction was not in writing; but if what was orally said to the jury by the court had been unfavorable to defendant, a different question might be present for consideration.
    3. INSTRUCTIONS: No Exceptions Saved in Motion. An assignment in the motion for a new trial that “the instructions of the court do not properly declare all the law in the case” means nothing more than that 'the court erred in the omission of proper instructions, and not in the giving of improper ones, and is insufficient to authorize a reversal on - the ground that the court gave the cautionary instruction concerning defendant’s credibility as a witness condemned in State v. Finkelstein, 269 Mo. 612.
    4. -: Review: Appellate Rule. Only such instructions as are complained of in the motion for a new trial will be considered on appeal, and that means that the instructions complained of should be at least designated in such a manner that the objections thereto may be singled out and passed upon by the appellate court.
    Appeal from. St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      Joseph G. Williams and I. A. Hollins for appellant.
    (1) See. 5231, R. S. 1909, fourth subdivision, is as follows: ‘ ‘Whether requested or not, -the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their .information in giving their verdict.” Section 5244 is: “The court shall not on the trial of the issue in any criminal case sum up or comment upon the evidence or charge the jury as to matter of fact — but the court may instruct the jury-in writing on any point of law .arising in the cause.” The instructions are expressly required to be in writing. State v. Cooper, 45 Mo. 65. There is no authorization, at the request or by the consent of the parties, to give oral instructions as to matters of law. State v. DeWitt, 152 Mo. 86; State v. Shipley, 174 Mo. 512; Haynes v. Trenton, 108 Mo. 123; • State v. Hess, 240 Mo. 159. (2) Where the prosecutor and the trial judge are personally known to the jurors as men in whose judgment and veracity they had confidence, the remarks of the prosecutor and the comment of the court no doubt carries great weight. State v. Ferguson, 152 Mo. 192; State v. Wigger, 196, Mo. 90 ; State v. Phillips, 233 Mo. 299.

      Frank W. McAllister, Attorney-General, and E. M. Connor for the State.
    (1) Appellant complains that the court erred in giving instruction number 10 on its own motion. The tenth instruction is not before this court for review. To properly bring this instruction before this court for review defendant must specifically set it out in his motion for new trial. See. 5285, R. S. 1909; State v. Snyder, 263 Mo. 664; State v. Price, 263 Mo. 276; State v. Chissell, 245 Mo. 549; State v. Finkelstein, 191 S. W. 1002; State v. McBride, 265 Mo. 594; State v. Levy, 262 Mo. 190; State v. Douglass, 258 Mo. 281; State v. Gifford, 186 S. W. 1060; State v. Knapp, 187 S. W. 1180. (2) The record shows that the assistant circuit attorney desisted in his objectionable remarks and at the close of the address, and at end of all the argument, the court directed the jury to pay no attention to' them, so that they went to the jury room with this judicial adjuration ringing in their ears. Yet appellant objected. These remarks did' not amount to an instruction by the court. Had the remarks amounted to an instruction by the court, defendant could not complain, as they would be decidedly in his favor. The court, by his direction to the jury, to disregard them, counteracted any baneful influence they might have had on the jury or any prejudice that may have been created in their minds against the defendant by reason thereof. State v. Hock, 118 Mo. 97; State v. Anderson, 126 Mo. 542; State v. Edie, 147 Mo. 546; State v. Emory, 79 Mo. 463; State v. Stark, 72 Mo. 39; State v. Taylor, 134 Mo. 109; State v. Hyland, 144 Mo. 302; State v. Pnnslion, 133 Mol 59; State v. Mu-sick, 101 Mo. 260; State v. Miles, 199 Mo. 530; State v. Lewis, 264 Mo. 420; State v. Gordon, 253 Mo. 510; State v. Raftery, 252 Mo. 72; State v. Larkin, 250 Mo. 218.
   WALKER, P. J.

The defendant was charged with murder in the second degree and upon a trial was convicted and sentenced to ten years’ imprisonment in the penitentiary. From this judgment he appeals.

An altercation occurred between the defendant and one William Carter on the night of April 10, 1915, near the corner of Ninth and Madison streets in the city of St. Louis, resulting in the stabbing of Carter by defendant and the former’s death a few minutes thereafter.

The evidence is indefinite as to the beginning-of this difficulty, save that it originated in a saloon near at hand out of which the parties had emerged just before they were seen scuffling on the street. An account in detail of this transaction is not necessary, as there is no feature of the .defense requiring a discussion of the evidence.

I. Remarks made by the circuit attorney in his closing argument are assigned as error. It appears that counsel for defendant, referring to certain questions that had been propounded by the circuit attorney during the trial, said that “the State had not attempted to prove that a hiding was done by the defendant in Iowa, because it did not happen. ’ ’ Replying to this statement in his closing argument, the circuit attorney said: “ I leave to you the question of whether or not there is any foundation for the insinuation thrown out by my friend that there has been any over-zealousness. I want to dwell just a moment on that. He said ‘the State had not attempted to prove that a killing was done by this defendant in Iowa, because it did not happen.’ Let me call yonr attention to the trick there. The gentleman is a lawyer and knows that the State is limited and that if the State was to attempt to do eerain things and to ask certain questions over the objection and protest of his counsel it would be error and there would be granted a new trial. And let me call your attention to this fact that the defendant was on the stand and he did not deny the Iowa episode.”

The burden of this remark under a reasonable interpretation cannot be said to be prejudicial unless it be the last sentence of same. If there was no evidence, as it subsequently appeared was the fact, of the alleged Iowa crime, it was not incumbent on the defendant to deny it, as is implied by the remark of the circuit attorney. Without more, therefore, we are inclined to the conclusion that the remark would have tended to prejudice the minds of the jury against the defendant by creating the impression that defendant had previously committed a like offense to that for which he was being tried. Despite the fact that defendant’s objection to this remark was overruled at the time, upon the close of the circuit attorney’s argument the court expressly excluded from the consideration of the jury any reference to the alleged Iowa crime, stating explicitly that there was no evidence to sustain such a charge, and therefore defendant was not called upon to deny the same. This action was sufficient to remove any bias which might have been produced by the remark, especially when coupled with the court’s express injunction that the jury was not to be influenced thereby in its finding. There are instances where remarks made by counsel are of such a nature that the sustaining of objections thereto will not suffice to remove from the minds of the jury the prejudice they produce. The error here complained of, however, is not of that character, but it was of such a nature that the statemént of the court was sufficient to remove any prejudice that otherwise might have been produced by same.

II. Defendant complains of the action of the trial court in directing the jury to disregard certain remarks of the circuit attorney. The language employed by the court was as follows:

“Gentlemen, the court feels it should make this statement to you. The circuit attorney, in his final argument, made reference to the fact that the defendant did not on the witness stand deny that he had killed somebody in Iowa. In that connection, I think the court should state to you that there was no evidence that the defendant had done so. The circuit attorney, in his questions to certain witnesses, asked whether they had heard he had done so, and they said they had not heard it, but there was no evidence before the jury that he had actually killed a man in Iowa and therefore there was nothing for him to deny. I think that explanation should be made; I think that meets the objection made to the court. ’ ’

It is contended that this direction is in the nature of an instruction and that it should have been in writing. This contention is based on the statute (Sec. 5231, R. S. 1909) which requires the court in criminal cases to instruct the jury in writing upon all questions of law necessary to enable them to render an intelligent verdict; and also upon the statute (Sec. 5244, R. S. 1909) which prohibits the court in a criminal case from summing up or commenting upon the evidence and limits its power to instructing the jury in writing on any point of law arising in the case. The authorities cited in support of this contention, in addition to affirmatively declaring the peremptory nature of these statutes, give as reasons for their enactment that written instructions afford a clearer and more definite guide than oral ones and are less likely to mislead the jury in reaching a correct verdict. [Mallison v. State, 6 Mo. 399; State v. Cooper, 45 Mo. 64; State v. Shipley, 174 Mo. l. c. 517.]

No question can arise as to the propriety of these statutes or the correctness of their application under a state of facts which shows that oral instructions were given; but'in the matter at issue this was not the case. The court’s action was not in the nature of an instruction, but was an explicit direction that the jury should not consider the matter referred to by the circuit attorney because there was no evidence in regard to same. It was similar in all of its material features to directions given by trial courts to juries in State v. Good, 132 Mo. 114, and State v. Dewitt, 152 Mo. 76, and it did not therefore violate the mandatory provisions of the statutes cited. Defendant should not be heard to complain of the court’s withdrawal from the consideration of the jury of a matter concerning which there was no evidence; and such withdrawal under the facts is not to be construed as an instruction. Defendant’s contention in this regard, therefore, is devoid of merit.

III. An examination of the rulings upon the testimony discloses no prejudicial error. The transcript shows that the court sustained defendant’s objeetion to the admission and exclusion of testimony where same would have had any tendency to prejudice the defendant. Under the authority of the record the same may be said of the conduct of -the circuit attorney in the examination of witnesses and his remarks in that connection.

TV. The instructions given defined murder in the second degree and the technical words necessary to constitute this offense; the presumption arising from the use of a deadly weapon upon another in some par£ was explained; this was followed by an instruction defining the duty of the jury in the event the facts are found as charged in the indictment and prescribing the punishment which may be inflicted if upon such facts a verdict of guilty is rendered. The presumption arising from an intentional killing in the absence of evidence to the contrary is also explained. Then follows a definition of manslaughter in the fourth degree and instructions which have repeatedly been approved as to the duty and power of the jury if they find the facts to sustain a verdict for this grade of offense. The weight to be given the testimony of defendant is then explained in an instruction which has, until the recent ruling in State v. Finkelstein, 269 Mo. 612, uniformly received the approval of this court. Following this is a státement that the indictment is a formal charge and not to be taken as evidence of guilt. The usual presumption in regard to the innocence of the defendant and what constitutes a reasonable doubt are then explained and the extent to which the jury may consider the evidence of good character of the defendant. Then follows an admonitory instruction that the jury are to be governed in their finding by the evidence in the case uninfluenced by the arguments of counsel for the State. While none of these instructions are subject to criticism except that in regard to the testimony of the defendant, we find upon an examination of the record that no such exceptions were saved to any of the instructions as to authorize their review, The objections in this record are attempted to be preserved by the defendant in the following manner in the motion for a new trial:

“Because the instructions of the court do not properly declare all the law in the case.
“Because the court erred in failing to instruct the jury in writing on all the law in the case.”

These objections mean,.if any specific significance is to be attached to them, that the error committed consisted in the omission of proper instructions and not in the improper giving of same. What was omitted is not stated.

Notwithstanding the liberality with which section 1841, Revised Statutes 1909, applicable by its terms to civil and criminal cases, has been construed in Wampler v. Railroad, 269 Mo. 464, the attempted preservation of the objections to the instructions in the case at bar does not even meet the requirements there made. It is impossible from this moti’on to determine what instructions are objected to or complained of.

The trial court could not from the general allegations made rule intelligently upon the motion for rehearing, and with nothing more to guide us here than the copy of this motion we are unable to determine what particular errors it is claimed the court in this regard committed. It has been repeatedly held that only such instructions as are complained of in the motion for a new trial will be considered on appeal (State v. Pfeifer, 267 Mo. l. c. 29; State v. George, 214 Mo. l. c. 267); by this is meant that the instructions complained of should be at least designated in such a manner that the objections thereto may be singled out and passed upon by this court.

The defendant was fairly tried. The punishment assessed was lenient when we take into consideration the nature of the crime which resulted in depriving a fellow creature of his life. The judgment of the trial court should therefore be affirmed, and it is so ordered.

All concur; Faris, J., in separate opinion.

FARIS, J.

(concurring) — I concur in the conclusion reached in this case as well as in all that is said, except in so far as a distinction is attempted to be drawn in paragraph two of the opinion, between an oral instruction and the language used by the learned trial court in withdrawing from the consideration of the jury certain evidence which had been erroneously allowed to come into the case upon the trial. I agree that in this no error was committed by the learned trial court for which defendant may complain, but I am not,prepared to say that what was said by the court below might not, had it been unfavorable to defendant instead of favorable to him, have been error, for that it was in the nature of an oral instruction to the jury in the face of the statute which requires all instructions to juries to be in writing.

As stated, however, what was said in this case was not hurtful error for which defendant may complain. This for the reason that the Statute of Jeofails (Sec. 5115, R. S. 1909) provides, among other things, that “no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected . . . for any error committed at the instance or in favor of the defendant.” I think the provisions of the section from which I quote effectively prevent defendant from bottoming reversible error upon what was said by the trial court, and the manner of the saying thereof, and upon this ground, so far as paragraph two is concerned, I base my concurrence.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    W. D. CRAIG v. KANSAS CITY TERMINAL RAILWAY COMPANY et al.; WILLIAM P. CARMICHAEL COMPANY, Appellant.
    Division Two,
    July 16, 1917.
    1. DAMAGE TO REALTY: Necessary Plaintiffs: Trustee and Mortgagee. In a suit by the holder of the equity of redemption for damage to his real estate caused by an excavation on abutting property, the fact that the trustee in an existing deed of trust and the holder of the mortgage notes are not joined as plaintiffs, is no de- ' fense to the action; and a motion by defendant who knows of the existence of the deed of trust, to make them parties, made after all the evidence is in, comes too late.
    2. REMOVAL TO FEDERAL COURT: Demurrer as to Resident Defendant. Where the trial court without the consent of plaintiff sustains a demurrer to the evidence on behalf of the only resident defendant, the remaining non-resident defendant is not entitled to have the cause removed to the Federal court.
    3. EXCAVATION ON OWN GROUND: Damage to Neighboring Property: Ordinary Care. In the absence of an agreement or promise to do so, the defendant contractor, in making a deep excavation on a railroad company’s right of way and in constructing a retaining wall along or near tke line of plaintiff’s property, is under no legal duty to shore up or support the ground upon which plaintiff’s building stands, but is liable only for such injury to the building as results from a lack of ordinary care in doing the work.
    4. -: Notice. Where the work of excavation began in June and the damage did not occur until September and plaintiff in the meantime had full knowledge of the scope and progress of the work, with ample opportunity to protect his own adjoining property, no notice to him of the intended excavation was necessary.

      5. -: Scope of Foreman’s Agency: Implied: Promise to Protect Building. A promise made by defendant’s foreman that defendant would shore up the embankment along the line of the excavation and protect the building on plaintiff’s property and save him from damage by the slipping, sinking or falling of the building’s wall, is not binding on defendant, because clearly beyond the limits of his agency. Nor is such authority to be implied from the fact that, after the building cracked and was in danger of falling and the men at work on the excavation were threatening to leave for fear the house would fall on them, the foreman employed an outside workman to shore up the building and defendant paid his bill, for that was done to protect defendant’s interests, ^.ot plaintiff’s.
    Appeal from Jackson Circuit Court. — Eon. O. A. Lucas, Judge.
    Reversed and remanded.

      Eaff, Meservey, German S Michaels for appellant.
    (1) The trustees or' beneficiaries in the deeds of trust were necessary parties. Chouteau v. Boughton, 100 Mo. 406; Logan v. Wabash, 43 Mo. App. 71; Heitkamp v. Granite Co., 59 Mo. App. 244; Railroad v. Baker, 102 Mo. 560; Thompson v. Railroad, 110 Mo. 163; Siemers v. Schrader, 88 Mo. 20; James v. Worcester, 141 Mass. 361; Stewart v. Finkelstone, 206 Mass. 28, 28 L. R. A. (N. S.) 634; Delano v. Smith, 206 Mass. 365, 30 L. R. A. (N. S.) 474. (2) The motion to transfer the case to the Federal court should have been sustained. Powers v. Railroad, 169 U. S. 92; Berry v. Railroad, 118 Fed. 911. (3) The matter of Hamilton’s so-called “assurances” had no proper place in the case; and if it did have, the question of Hamilton’s authority to make them was a jury question. Adv. Co. v. Wanamaker & Brown, 115 Mo. App. 295; McGraw v. O’Neil, 123 Mo. App. 691; Hodkins v. Machinery Co., 161 Mo. App. 87; Larson v. St. Ry. Co., 110 Mo. 234 Prevost v. Ice Co., 185 Pa; 617; Ohert v. Dunn, 140 Mo. 476; Walters v. Hamilton, 75 Mo. App. 244. (4) Defendant owed plaintiff no legal duty to shore up or protect the building. Obert v. Dunn, 140 Mo. 476; Meat Co. v. Foster, 159 Mo. App. 537; Gates v. Fulkerson, 129 Mo. App. 620; Scliumaclier v. Breweries Co., 247 Mo. 141; Larson v. Railroad, 110 Mo. 252; Glenn v. Hill, 210 Mo. 291; Cooper v. Const. Co., 231 Pa. 557. (5) The court erred in refusing to instruct that it was plaintiff’s duty to shore up the Craig building. Obert -v. Dunn, 140 Mo. 476; Larson v. Railroad, 110 Mo. 1. o. 252; Burk Bros. Co. v. Foster, 159 App. 537; Teepen v. Taylor, 141 Mo. App. 282; Evans v. Railroad, 222 Mo. 455; Ballentine v. Railroad, 40 Mo. 491; Turner v. Haar, 114 Mo. 335; Brewing Assn. v. Talbot, 141 Mo. 674; Granev v. Railroad, 157 Mo. 666; Fuchs v. St. Louis, 167 Mo. 620; Bowen v. Railroad, 95 Mo. 268; 1 Ency. of Ev. 209. (6) No notice to Craig as to intention to excavate was necessary. Burk Bros. Co. v. Foster, 159 Mo. App. 537.

      W. H. Cloud and Reed S Harvey for respondent.
    (1) The trustees or beneficiaries in the deed of trust were not necessary parties. Logan v. Railroad, 43 Mo. App. 71; Masterson v. Railroad, 72 Mo. 347; Woods v. Hilderbrand, 46 Mo. 284; Kennet v. Plummer, 28 Mo. 145; Hardwick v. Jones, 65 Mo. 60; Johnson v. Houston, 47 Mo. 231; Chouteau v. Boughton, 100 Mo. 406; 27 Cyc. 1272; Elvins v. Delaware Co., 63 N. J. L. 243. (2) The court properly refused to transfer the case to the Federal court. Berry v. Railroad, 118 Fed. 911; Powers v. Railroad, 169 Ú. S. 92; Whitcomb v. Smithson, 175 U. S. 637. (3) The instructions properly assumed foreman Hamilton’s authority to make the assurances of protection claimed by respondent to have been made, (a) His authority was a conceded fact in the ease. Davidson v. Transit Co., 211 Mo. 356. (b) It was unnecessary for respondent to show the exact extent of Hamilton’s authority. Garretzen v. Duenckel, 50 Mo. 104; Barree v. Cape Girardeau, 197 Mo. 391; Douglass v. Stevens, 18 Mo. 362; Minter v. Railroad, 41 Mo. 503; Perkins v. Railroad, 55 Mo. 201; Harriman v. Stowe, 57 Mo. 93; Ephland v. Railroad, 137 Mo. 187; Compher v. Telephone Co., 127 Mo.-App. 553; Mechem on Agents, sec. 734; Tiffany on Agents, p. 274. (4) The Carmichael Company owed to respondent the duty to excavate and construct in a careful manner, (a) It was responsible for any negligence. Gerst v. St. Louis, 185 Mo. 208; Charless v. Rankin, 22 Mo. 573; Larson v. Metropolitan, 110 Mo. 234; Obert v. Dunne, 140 Mo. 476; McGrath v. St. Louis, 215 Mo. 209; Eades v. Gaines, 58 Mo. App. 586; Walters v. Hamilton, 75 Mo. App. 237. (b) -It failed to do the work of construction in sections, but, on the contrary, it had open for almost, if not the entire length of the Craig lot, a trench before the construction of the retaining wall. Larson v. Metropolitan, 110 Mo. 234; Obert v. Dunn, 140 Mo. 476. (c) It assured respondent that it would protect his building by shoring, but failed to do so. Walters v. Hamilton, 75 Mo. App. 237; Larson v. Metropolitan, 110 Mo. 244; Gildersleeve v. Hammond, 109 Mich. 439.
   ROY, C.

Plaintiff sued the Kansas City Terminal Railway Company and the William P. Carmichael Company for damages to a building caused by an excavation made near it by the latter company as a contractor in the construction of a retaining wall for the right of way of the railroad.

The answer of the Carmichael Company included a counterclaim for $172.40.

On the trial there was a verdict for the Railroad Company, and a verdict for the plaintiff against the Carmichael Company for $10,000, and also a verdict for plaintiff against said counterclaim.

There was a remittitur of $2500 by plaintiff, and a judgment in his favor for the $7500.

The Carmichael Company, hereinafter called the defendant, has appealed.

On June 21, 1911, when the work of excavation for such retaining wall began, the plaintiff' was the owner of lot 1 in Block 1 in Graham’s Addition to Kansas City. On that lot was a building the wall of which was contiguous to the right of way of the Terminal Company. Tlrnre were then two deeds of trust on the property, one for $4000, the other for $2500, in both of which V. F. Boor was trustee. C. H. Johnson was payee of all the notes, none of which were mature when the suit was begun.

At that place the railroad was in a cut about thirty-five feet deep, with a double track at about the center of the right of way, which was a hundred and twenty-five feet wide. The bank sloped upward from near the track to about the floor of the basement of plaintiff’s building.

The plaintiff was daily about his business in and around the building during the whole progress of defendant ’s work, and was fully aware of its extent and nature. The south bank of the excavation was about twenty-five feet from plaintiff’s building. The sides of the excavation were braced by sheet piles three inches thick, driven down to rock and supported by longitudinal and cross beams. Prom four to seven feet of that trench at the bottom was excavated by blasting the rock.- The evidence was conflicting as to whether such blasting was done by the use of overcharges of dynamite.

On September 9, 1911, while the work was in progress and before the wall was completed, plaintiff’s north wall slipped down and out so as to tear it loose from its connection with a considerable portion of the floors, but it remained standing. The piles by which defendant was attempting to support the side of its excavation were to some extent shoved out of" line by the pressure of the dirt against them. There was danger that the wall of plaintiff’s building would fall oii defendant’s work, and its workmen were threatening to quit on that account. Defendant’s foreman, Hamilton, thereupon employed one Bovard to prop the building to keep it from falling, and on behalf of defendant paid him $172.40 for that work.

Plaintiff testified that soon after the work began the foreman, Hamilton, told him that he need not protect his building and promised him that defendant would shore it up and protect it from danger. Hamilton on the stand denied making such promise.

The petition seeks a recovery on the following grounds:

1. Because defendant gave plaintiff no notice of such contemplated work.

. 2. That defendant promised plaintiff to protect him against damage.

3. That defendant failed to do such work in short sections.

4. That defendant failed to support the sides of the excavation with piles in sufficient number and strength to support the earth.

5. That defendant used overcharges of dynamite in blasting the rock.

The answer, among other things, contained a general denial, and the averment that the plaintiff was not the owner of the property, but that the same was. owned by C. H. Johnson and V. F. Boor and others. Defendant-did not file any motion asking that Boor or Johnson be made a party to the suit until after the evidence was all in, and when the cause was ready to be submitted to the jury.

The plaintiff and the Terminal Company are citizens of Missouri, and the Carmichael Company is a citizen of Indiana.

At the close of plaintiff’s evidence the court sustained a demurrer on the part of the Terminal Railway Company to plaintiff’s evidence. Thereupon the Carmichael Company filed its application and bond for a removal of the cause to the Federal court, which application was refused.

The third instruction for plaintiff was as follows:

‘ ‘ The court instructs the jury that if you believe from the evidence that the building of plaintiff and that portion of his lot upon which the same rested was injured (if you find it to have been injured) by reason of the fact that the building was not shored up and protected in time to have averted such injuries, and that the defendant through its foreman, Hamilton, had assured the plaintiff that defendant would shore up and protect the building and that plaintiff relied on such assurances, and that defendant negligently and carelessly failed to shore up and protect the building as aforesaid, then your verdict must be for the plaintiff. ’ ’

And his second instruction embodied the same theory.

Defendant’s refused instruction Number 10 was as follows:

“The court instructs the jury that there is no evidence in this case that defendant Carmichael Company agreed to protect plaintiff’s building or land from dam-, age on account of the excavation of the trench for the new retaining wall mentioned in evidence, and you are instructed that there can. be no recovery by plaintiff in this case on that theory.”

I. The fact that the trustee and beneficiary in the deeds of trust were not joined as plaintiffs herein is no defense to this action. It was said in Matthews v. Railroad, 142 Mo. l. c. 658: “The deed of trust, then, is really a mere security, and an injury to the freehold is a damage to the grantor, who is, in equity, the real owner, and he is at least a proper party to a suit to recover compensation therefor. ”

We may concede that the trustee and beneficiary, one-or both, may also sue for an injury to the freehold. [See Chouteau v. Boughton, 100 Mo. 406.]

Still, the grantor in the deeds of trust is not united in interest' with the trustee and beneficiary so as to require them to be made parties under Revised Statutes 1909, section 1733. It was held in Little v. Harrington, 71 Mo. 390, that joint owners of personalty should unite in a suit for its conversion. Such joint owners of personalty are united in interest. Undoubtedly the defendant had the right to proceed by motion timely filed to have the trustee and beneficiary in the deeds of trust made parties to this suit, in order that all the rights of the parties in relation to each other and to the cause of action might be adjudicated and settled in one proceeding, and that the defendant be not vexed with a multiplicity of suits. But the defendant, knowing of the existence of the deeds of trust, made no such motion until after the evidence was all in. It was then too late. What is more, the appellant is not here complaining of the overruling of its motion to make the trustee and beneficiary parties to this suit, but stands on the proposition that plaintiff had no right to sue without making them parties.

II. The trial court properly refused to transfer the cause to the Federal court. In Berry v. Railroad, 118 Fed. 911, and in Powers v. Railway Co., 169 U. S. l. c. 92, it was held that where the plaintiff voluntarily dismissed as to the resident defendant, the non-resident defendant was entitled to a removal. But in Whitcomb v. Smithson, 175 U. S. 635, Fuller, C. J., held that where the trial court directs a verdict in favor of the resident defendant without the consent of plaintiff, there is no right to a removal.

III. Lord Tenterden, in Wyatt v. Harrison, 3 Barn. & Adol. l. c. 876, said:

“It may be true that if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbor digs in his land so as to occasion mine to fall in, he may be liable to an action.”

^ In Charless v. Rankin, 22 Mo. 566, Leonard, J. quoted that language, but added: “When, however, the lateral pressure has been increased by the erection of buildings, it seems, to be well settled at common law by authorities, that no man has a right to an increased support unless he has acquired such a servitude by grant or prescription. It is so laid down in the early case of Wilder v. Minsterly, 2 Rolle’s Abr. 564.”

It was also there said:

“It is to be observed that the defendant was upon his own ground, and in digging upon it, exercised an undoubted right of property, which the plaintiff had no right, either by express grant or prescription — by statute or local ordinance — in any way to interfere with or prevent; and although, in exercising his rights, it was certainly his duty to his. neighbor to use ordinary care in order to avoid doing him harm, he was not bound to observe the same care that he would have taken, as a wise and sensible man, if he had been the owner of both buildings — the one erected and the one about to be erected. He would, of course, in that event, have shored up and would have submitted to many inconveniences, and, indeed, would have incurred considerable additional expense in doing the new work, rather than expose the building already erected to any risk. Every prudent person, in such a situation, would take precautions — subject himself to inconveniences, and forego the exercise of every right that would endanger his present building, if he found it for his interest to do so. In the present case, if the laying of the new foundation, in very short sections, would have been attended with increased expense and danger to the sufficiency of the new wall, and the defendant had been the owner of the plaintiff’s building, he might have found it for his interest to have submitted, and most probably would have submitted, to this inconvenience and risk, and even increased expense, to avoid all hazard to his own property; yet the law does not exact of him thej same - forbearance and care and expense for the security of his neighbor’s property that he would have found it for his interest to have taken for his own.”

In Obert v. Dunn, 140 Mo. l. c. 485, is this:

“If, as shown by the authorities, plaintiff was only entitled to lateral support from the lot of defendants for the soil of his lot in a natural state, and not to such support for a building placed on his land, and if, as also shown by the authorities, defendants when engaged in excavating on their own land for a cellar, and in the exercise of ordinary care and skill, and after due notice to the owner are not liable to such owner, though in digging on their own land they dig so near the foundation of the house of their neighbor as to cause it to crack and settle or even fall down, then it must follow that the only question in the case is whether the digging was done with ordinary care and skill.”

It follows that, in the absence of an agreement or promise to do so, the defendant was under no legal duty to shore up or support the ground upon which the building- stood, but was liable only for the lack of ordinary care in doing its work.

If there were any evidence in this case to show that under the conditions which prevailed at the time plaintiff’s ground would have slipped and sunk even if there had been no building on it, the case would be different in its legal aspects.

IV. No notice to the plaintiff of the intended excavation was necessary. The work began in June and the damage did not occur until September. In the meantime plaintiff had full knowledge of the scope and progress of the work with ample opportunity to protect his property. [Larson v. Street Ry. Co., 110 Mo. 234; Gerst v. St. Louis, 185 Mo. 191; Burk Bros. v. Foster, 159 Mo. App. 537.]

V. Hamilton, defendant’s foreman, had no authority as such to bind the defendant by a promise to plaintiff (if any such was made) to protect plaintiff from damage by the slipping, sinking or falling of the wall.

1 Mechem on Agency (2d Ed.), section 715, says:

, “It is a fundamental principle in the law of agency that every delegation of authority whether ‘general’ or ‘special,’ carries with it, unless the contrary be expressed, implied authority to do all of those acts, naturally and ordinarily done in such cases, which are reasonably necessary and proper to be done in this ease in order to carry into effect the main authority conferred. This doctrine rests upon the presumed intention of the principal that the main authority shall not fail because of the lack of express authority to do the incidental acts reasonably necessary to make that authority effective, and also upon the presumption that the principal expects the business to be done in the usual and ordinary way.” Section 743 of that work has this: “It is therefore declared to be a fundamental riile, never to be lost sight of and not easily to be overestimated, that persons dealing with an assumed agent, whether the assumed agency be a general or special one, are bound at their peril, if they would hold the principal, to ascertain not only the fact of the- agency but the nature and extent of the authority, and in case either is controverted, the burden of proof is upon them to establish it.” And section 750, this: “Attention must also be given to the question, of whom shall inquiry as to authority be made? Must the other party go to the principal or may he rely upon the statements of the agents or of strangers? To this question, the law in general gives but one answer: The party dealing with the agent must not rely on what the agent alone may say or do, and a fortiori not on what mere strangers say or do, but he must be able to trace the authority on which he relies back to some word or deed of the principal. ”

Respondent’s brief says that it is a conceded fact at the trial that Hamilton was defendant’s foreman. So it was; but that is not a concession that Hanlilton had any power to assume such additional obligation on the part of his principal. That brief also calls attention to the fact that, after the building cracked and was in danger of falling, Hamilton arranged with Bovard to shore up the building, and that the defendant thereafter paid the bill for that work. Bovard, plaintiff’s witness, testified that when Hamilton arranged for that shoring up defendant’s workmen were threatening to leave for fear that the house would fall on them. Thus it happened that both the plaintiff and defendant were at that time desirous of protecting the building, the plaintiff, because it belonged to him, the defendant, because it did not want it to fall on its work and on its employees. In such a situation Hamilton owed his employer a duty to protect that employer’s interests by such shoring up, but such duty did not involve the power to bind his principal to protect the interests of this plaintiff. When Hamilton hired Bovard to protect defendant’s interests by shoring np the building, he was within his authority as foreman, and the defendant was bound to pay the bill. But when Hamilton agreed (if he did so agree), to protect the plaintiff’s interests by shoring up the house, he was clearly beyond the limits of his' agency. Such contract did not in any way benefit or protect the interests of the principal, this defendant. It follows that plaintiff’s second and third instructions which are based on the theory that Hamilton as such foreman had authority to make such agreement on behalf of defendant are erroneous, and defendant’s refused instruction number 10 should have been given.

We have not overlooked what was said in the case of Larson v. Metropolitan St. Ry. Co., supra. But there is a clear line of demarcation between that case and this. The owner of the adjoining property had no previous notice of the intended excavation as in this case. But in that case the foreman (there called the superintendent), during the progress of the work, told the adjoining proprietor that he intended doing the work in sections. The first part of the work was done that way. But later, and in the absence of the adjoining proprietor, and without any notice to him of a change of plan, the work was rushed through without regard to sections, and the portion of the house adjoining the last excavation fell. It was there said:

“We think that plaintiff had the right to rely upon the statement of the superintendent, made during the progress of the work and of his agency (and, hence, res gestae), as to the care which defendant intended to exercise towards the property of plaintiff with reference to which that statement was made. He had the right to assume that the course foretold would be followed, at least until he had notice to the contrary and a reasonable opportunity thereafter to act upon such later notice. We have added this last observation to meet the suggestion of defendant that plaintiff was duly advised that the excavation was not being done in sections. But on this point it appears that one section was first built, substantially as promised; and that the long and dangerous excavation later, to which the fall of the building is charged, occurred between half past two and five o’clock of the afternoon preceding the injury.
“On these facts the court cannot justly declare, as a conclusion of law, that plaintiff, in the exercise of reasonable care, was chargeable with notice that the plan of construction, previously indicated by the superintendent, was not to be followed, and should have taken measures of his own for the protection of his domicile.”

In that case the statement of the foreman was not treated as a valid and binding contract of his principal that the adjoining proprietor should he protected against loss. That statement was there considered merely as affecting the question of notice. The foreman in that case did not say: “We will protect your property from damage.” He merely said in effect: “We are going to do the work in sections,” and then he suddenly did it in another way without notice of such change of plan.

In this case there is no complaint of a lack of notice or of a sudden change of plan. From June until September the work went on under plaintiff’s eyes. . The sides of the excavation were supported by piles which were braced in a certain manner. The plaintiff was not misled by what he saw. If the method of protecting the sides of the excavation was insufficient, he had ample opportunity to take such course as he saw proper for the protection of his property. As between the parties the responsibility for the protection of the property rested upon the plaintiff, the defendant being responsible only for the lack- of ordinary care. If the foreman agreed with the plaintiff that defendant would shore up and protect the building, such contract was without any consideration and beyond the powers of the foreman as agent.

Appellant raises several other interesting questions, but as they are not likely to arise, at least in the same way, on another trial, we will pass them by.

The judgment is reversed and the cause is remanded.

White, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court

All of the judges concur.


author: WILLIAMS, J.

text:
    IN MATTER OF ASSESSMENT OF COLLATERAL INHERITANCE TAX in re ESTATE OF LOUIS BERNERO; CLOTILDA LONGINOTTI et al., Appellants.
    Division Two,
    July 16, 1917.
    1. COLLATERAL INHERITANCE TAX: Assessment After Close of Administration. Unless the statute otherwise directs, the probate court has jurisdiction to assess a collateral inheritance tax against the interests of the heirs or devisees after final settlement of decedent’s estate. The proceeding is not one against decedent’s property, but is against the interest or property right to which the devisees or heirs succeeded in the property formerly held by him.
    2. -: -: Statute. The statute (Sec. 326, R. S. 1909) declaring that the probate court “having jurisdiction of the settlement of the estate of decedent, shall have jurisdiction to hear and determine all questions in relation” to the assessment of a collateral inheritance tax that may arise, does not mean that the court, after administration of the estate is closed, does not have jurisdiction to assess a collateral inheritance tax against the interests of legatees or heirs. It simply points out the- particular court that is to have jurisdiction of the matter.
    3. -: Res Adjudicata: Unascertainable Legatees: Life Estate With Power of Disposition. An assessment of a collateral inheritance tax, during the course of the administration of decedent’s estate, against such property as was then known to be subject to such tax, did not operate as res adjudicata of a subsequent right to assess the tax against other property devised to then unaseertainable devisees. Where testator’s will gave such other property to his wife during her life, with remainder over to an adopted son if he survived her, but if she survived him with unrestricted power in her to devise said property, and she did survive the adopted son and after the close of the administration devised the property to her nephews and nieces, it could not be seen until her will was made upon whom the succession would devolve, nor could it be foreseen that the transmission would be subject to a collateral inheritance tax at all.
    4. -: Assessment Bending Will Contest: Bremature. Where a suit has been instituted to contest the validity of a will devising property to the persons against whose interests it is sought to have a collateral inheritance tax assessed, the proceeding in the probate court to assess the tax should be postponed until the will contest suit is finally adjudicated. The tax is not upon the property, but upon the interests of the legatees, and if their interests depend upon the validity of the will it cannot be known that they have any interest until the will is established, and it cannot be held to be established so long as a contest suit once timely begun is pending.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Reversed and remanded.
    Stewart, Bryan & Williams, Schnurmacher & Rassieur and John M. Goodwin for appellants.
    (l)The estate of Louis Bernero, Sr., deceased, having been finally administered, final settlement thereof having been had and approved, and the executrix and executor thereof having been discharged in December, 1908, the probate court in January, 1912, had no jurisdiction over the estate of Louis Bernero, Sr., deceased, and therefore had no authority to appoint an appraiser and appraise and assess collateral inheritance taxes in said estate, and its acts in this behalf are void. The power of taxation is a sovereign right which belongs alone to the State, and which can only be exercised in pursuance of laws passed by the Legislature for that purpose. There can be no such thing as an implied power to levy a tax. Such power must be clearly and expressly given by statute. State ex rel. v.' Railroad, 87 Mo. 239; State ex rel. v. Shortridge, 56 Mo. 130. A-tax assessor can only proceed at the time and in the manner pointed out by statute to make his assessment, and to justify his assessment he must be able to put his finger on the statute that gives the authority to make it. Hannibal ex rel. v. Bowman, 98 Mo. App. 103; Arizona v. Mining Co., 233 H. S. 87; State ex rel. v. Lesser, 237 Mo. 318. Inheritance tax laws are construed strictly against the State and in favor of the citizen. In such cases the citizen has a right, both in reason and in justice, to claim that he shall be clearly brought within the terms of the law before he shall be subjected to its burden. State ex rel. v. McVeigh, 181 Mo. App. 573; Disston v. McClain, 147 Fed. 114; In re Enston’s Estate, 21 N. E. (N. Y.) 87; Eidmán v. Martinez, 184 U. S. 578; People v. Koenig, 37 Colo. 283; Estate of Harbeck, 161 N. Y. 211; Estate of Kimberly, 50 N. Y. Supp. 586; Estate of Kerr, 159 Pa. 512; Baily v. Henry, 143 S. W. (Tenn.) 1124; Lynch v. Union Trust Co., 164 Fed. 161. The Missouri Inheritance Tax Act only authorizes the judge of the probate court to appoint an appraiser and assess such taxes while such court has jurisdiction over the estate of decedent. Secs. 322, 323, 324, R. S. 1909. The probate court is powerless to set aside or change its own judgment approving the final settlement and ordering distribution. Such judgment is conclusive on all persons interested and can only be assailed by a direct action, for fraud in another court. Caldwell v. Lockridge, 9 Mo. 362; Murray v. Roberts, 48 Mo. 307; State ex rél. v. Gray, 106 Mo. 526. Should newly discovered assets be brought to light after final settlement has once been had in the estate of a decedent, the probate court has no power or jurisdiction to reopen such estate for the purpose of administering these newly discovered assets. Administration de bonis non must be had and a new administration opened. Ratliff v. Magee, 165 Mo. 469. Inheritance taxation is a tax on the right or privilege of succession, or the right of the heir, devisee or legatee to receive. It is not laid upon the property itself, but upon the privilege or right of succession to it. State ex rel. v. Switzler, 143 Mo. 327; Estate of Hite, 159 Cal. 392; Kochersperger v. Drake, 167 111. 122; Wieting v. Morrow, 151 Iowa, 590; Lacy v. State, 121 N. W. (Iowa) 179; Estate of Irish, 60 N. Y. Supp. 30; Estate of Linkletter, 134 App. Div. 309, 118 N. Y. Supp. 878: Estate of Macky, 46 Colo. 79; State v. Handlin, 139 S. W. (Ark.) 1112'; State v. Hamlin, 86 Me. 495; State v. Alston, 94 Tenn. 674. The Missouri Inheritance Tax Act creates a personal liability for the tax against the heir, next of kin, legatee, devisee, etc., and also establishes a lien in favor of the State of Missouri upon a legacy to secure the payment of said tax. Sec. 309, R. S. 1909. The only function that the probate court performs is that of assessing values and amount of the tax and fixing the lien therefor. It does not and cannot render a personal judgment against the person liable for such tax. The probate court, therefore, should be limited in its power of fixing value of property so as to fix this lien, to the time when it has access to the assets and knowledge of who will succeed to the same within its control — -that is, during the period of administration of the estate of decedent. The word “estate” as used in the Inheritance Tax Act has reference to and means the mass of property left by a deceased person. Wilson v. Massie, 70 Ark. 25; West v. Herman, 47 Tex. App. 131. The Missouri Inheritance Tax Act limits the power of the Probate Judge and the appraiser appointed by him to that of appraising and determining the values of “estates.” Giving to the meaning of this word “estates” the idea of the mass of property left by decedent before distribution to his creditors, heirs or devisees, it must follow after such estate has been settled and such assets have been distributed, that there is no longer any such thing as an “estate” for a probate judge or an appraiser to assess. Sec. 326, R. S. 1909, provides that the probate court having jurisdiction of the settlement of the estate of decedent shall have jurisdiction to hear and determine1 all questions in relation to said taxes that may arise. This is a limitation of the probate court’s power to pass on these questions, unless it then has jurisdiction over the settlement of the estate of decedent. After settlement has been made and the estate closed, such jurisdiction has ceased. (2) The act of the probate court in assessing collateral inheritance taxes is a judicial act — a judgment. The amount of the collateral inheritance tax due in this estate on this same property or whether any was due at all, was determined by the probate judge of St. Louis in a proper proceeding for that purpose back in June, 1905, in the estate of Louis Bernero, Sr., during the administration of said estate. That judgment is conclusive and the same matter cannot now be reopened and retried. The Inheritance Tax Law confers upon the probate judge and probate court power to assess inheritance taxes, and confers upon said court the jurisdiction to determine all questions in relation to said tax that may arise affecting any devise, legacy or inheritance. Sec. 322, 323, 326, R. S. 1909. "Where the statutes confer jurisdiction on a court or judge to hear and determine all questions in relation to inheritance taxes, the orders or judgments of that court or judge in the matter of appraising the estate and assessing the taxes, whether it be a probate court or a court of general jurisdiction, are final and conclusive, and the matters and things therein involved cannot be relitigated. The only remedy the parties have is by appeal., Ross on Inheritance Taxátion, p. 326, sec. 290; In re Niven, 61 N. Y. Supp. 956; In re Rice’s Estate, 61 N. Y. Supp. 911; In re Hackett’s Estate, 35 N. Y. Supp. 1051; In re Clarkson’s Estate, 149 N. Y. Supp. 32; In re Morss’ Estate, 149 N. Y. Supp. 41; Commonwealth v. Freedley’s Executors, 21 Pa. St. 33. The disposition made by Louis Bernero, Sr., by Item 5 of his will of the real estate at Ninth and Washington Avenue, with the exception of the life estate in behalf of his wife, Theresa, was subject to and taxable at the time of the first appraisement. Secs. 309, 310, 314, R. S. 1909. The plea of res judicata applies not only to all points which were actually passed upon, but to every point which properly belonged to the subject of the controversy and which the parties might have brought forward at the time. Emmert v. Aldridge, 231 Mo. 124; Donnell v. Wright, 147 Mo. 647; Cantwell v. Johnson, 236 Mo. 603. (3) In any event the tax should never have been assessed alone against the Longonotti children, appellants herein, for the reason that pending litigation involving their title to the property taxed has Rot been disposed of and it cannot now be ascertained whether.in fact these appellants have or will ever receive any interest in said property.
    O. M. Barnett and Ernest A, Green for Curators of the University of Missouri.
    (1) The statute merely means that the court which undertakes to assess the tax on property included in the estate of a decedent must be the same court which the statute has vested with jurisdiction over the settlement of the decedent’s estate, even though the court has already actually administered the estate. Appellants have confused the possession of jurisdiction with its exercise. Woerner on Administration, sec. 506. The' inheritance tax is not a claim “against the estate” and consequently, even though a final settlement acts as a judgment that all claims against the estate have been presented, the inheritance tax is not barred thereby. (2) "We are not reopening the assessment of 1905. That assessment related only to a devise of a ten thousand dollar piece of real estate to Joseph Bernero and to a bequest of five hundred dollars in cash to Louisa Gazzolo. We have no desire to appeal from that assessment, and so far as the items therein contained are concerned they are satisfactory to us. In this proceeding we are not attempting to assess the tax on “the same property” which was assessed in 1905. If the interests now sought to be assessed were taxable at the time of the original appraisal, it might be properly contended that no assessment could now be made; but inasmuch as they were not subject to the tax at that time the State clearly has a right to now appraise the same. Morgan v. Cowie, 63 N. Y. Supp. 608; Morgan v. Warner, 45 N. Y. App. Div. 424, 60 N. Y. Supp. 963, affirmed in 162 N. Y. 612; Matter of Kelley, 60 JST. Y. Supp. 1005; In re Silliman, 175 N. Y. 513; Matter of Conley, 77 N. Y. Supp. 1032; Matter of Smith, 35 N. Y. Supp. 701. (3) Conceding that Louis Bernero, Jr., has legal standing to maintain the two suits which he has brought, this property would still be subject to the payment of a collateral inheritance tax, as our statute does not exempt from the payment of a tax the children of an adopted child. Since .the property is legally subject to the payment of a tax, even if it should be paid by the appellants, and Louis Bernero, Jr., should be successful in his suit to quiet title, the appellants would have a lien upon the property for the amount of the tax paid by them, and any court of equity would require him to refund the taxes paid with legal interest before title would be decreed in him. Sec. 310, R. S. 1909, expressly covers a case similar to the one at bar.
   WILLIAMS, J.

This proceeding was originally instituted in the probate court of the city of St. Louis on the 25th day of January, 1912. After judgment in the probate court the proceeding was duly appealed to the circuit court of the city of St. Louis; which court, on December 6, 1915, entered its judgment fixing and assessing collateral inheritance taxes in the total sum of $11,-572.03.

That portion of the judgment assessing the tax is as follows:

It is therefore ordered, adjudged and decreed hy the court that the parties liable for a collateral inheritance tax upon the transfer of interest in the real estate herein described, the amounts of their respective interests therein, and the amount of tax which said parties are liable for on their respective interests are as follows, to-wit:
Parties Liable Cash Value as Life-Tenants. of Interest. Amount of Tax
Joseph Longinotti, ..............$ 19,142.72 $ 957.13
Ida Longinotti, .................. 19,454.20 972.71
Theresa L. Goodwin ............ 19,775.25 988.76
Louis Longinotti, ............... 19,945.30 997.26
Laura Longinotti, .............. 20,484.26 1,024 21
Florence Longinotti, ............ 20,865.28 1,043.27
Mary Longinotti, .....'.......... 21,081.27 1,054.07
Adele Longinotti, ............... 21,586.06 1,079.'31
Catherine Longinotti, 22,789.87 1,129.50
Leo Longinotti, ..... 21,899.42 1,094.98
James Longinotti, ... 24,416.92 1,220.83 $231,440.55
It is still further ordered, adjudged and decreed by the court that said taxes be, and they are hereby assessed upon the succession to the following described real estate situated in the city of St. Louis, Missouri, to-wit: (Then follows a description of the property.)
That the said parties liable for said tax as aforesaid shall pay the same upon their respective interests to the collector of revenue of the city of St. Louis, Missouri, together with interest upon the tax assessed against each of them respectively, at the rate of one per cent per month from July 15, 1911, to the date of payment, together with the costs of this proceeding, and said taxes so assessed are hereby adjudged to be a first lien in favor of the State of Missouri upon the respective interest of said parties in and to said described real estate; but the payment by any one or more of said parties of the amount of tax, interest and cost, against his or their respective interests, shall operate to discharge the lien.of the State of Missouri upon such interest so paying the tax, without effecting its lien as against the interest or interests of those of said parties, if any, who do not voluntarily pay the amount of tax assessed against them.

An appeal was duly taken by tbe above named persons to tbis court.

The case was tried below upon an agreed statement of facts (comprising fifty pages of the printed record here) and some parol testimony. The important facts necessary to an understanding of the issues may be summarized as follows:

Louis Bernero, Sr., (in whose estate this proceeding is attempted to be had), died testate in St. Louis, August 8, 1904, seized of the fee simple title to considerable real estate, including a five-story business building known as No. 902 Washington Avenue (the same being the property involved in this proceeding). For brevity we will hereinafter refer to said property as the Washington Avenue property. At his death he left surviving him his wife, Theresa Bernero, and a nephew, Manuel Bernero, referred to in the will as an adopted son but who (according to the agreed statement of facts) had never been, by deed, adopted by the said Louis Bernero, Sr.

Disposition of said Washington Avenne property, by clause five of the will of Louis Bernero, Sr., was made as follows:

“1 give and devise unto my beloved wife Theresa Bernero [hero the Washington Avenue property is described] to have and enjoy for and during the term of her natural life, and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life, and at his decease to pass to and vest in fee in his children, if any he have, or their descendants, but in default or failure of such direct heirs, children or grandchildren him surviving then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs; if, however, my said wife shall survive said Manuello, then she, said Theresa Bernero, is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary disposition of same, then said realty, upon her 'death, shall vest in my right heirs, if she shall survive said Manuello; I authorize and empower my said wife during her lifetime, and if said Manuello shall survive her and enter upon the enjoyment of said realty, then said Manuello, during his lifetime, to lease said realty thus bequeathed to them for life as aforesaid, successively, on such terms as they severally deem proper, each exercising such right during her or his life tenancy, for leasehold periods not exceeding twenty-five years each.”

Administration was bad upon the estate of Louis Bernero, Sr., final settlement therein having been made on December 14, 1908. During the process of administration, an assessment of collateral inheritance taxes was made upon said estate, but no such tax was assessed in connection with the devise of the Washington Avenue property now involved.

On April 4, 1910, Manuel Bernero died and left surviving him one child, Louis Bernero, Jr.

On July 15, 1911, Theresa Bernero (wife of testator) died testate and in her will exercised the power of appointment given her by her husband’s will over the Washington Avenue property in the following manner:

Clause eleven of will of Theresa Bernero:
“I give and devise to said St. Louis Trust Company the following real estate [here follows a description of the Washington Avenue property].
“To Have and To Hold the same as trustee upon the trusts and subject to the conditions following, that is to say:
•‘Said Trust Company, and its successor or successors in trust, shall have full power to take possession of, hold, and manage the above described real estate, in trust, however, for the equal use and benefit of all the children of my sister, Clotilda Longinotti, wife of Joseph Longinotti, for and during the natural lives of such of said children as may be living at the time of my decease, and until the death of the last survivor thereof. At present there are eleven children, namely, Joseph, Ida, Theresa, Florence, Laura, Mary, Adele, Leo, Catherine and James Longinotti; but it is my intention that this trust shall be for the equal benefit of all of the children of my said sister, whether they be living at the time ot my decease or born thereafter, and for the descendants of any of said children who may have died leaving issue, such descendants taking per stirpes and not per capita. I direct, however, that the trust herein created shall cease and determine upon the death of the last survivor of said children who may be living at the time of my decease.
“Said Trust Company, as such trustee, shall be authorized to rent or lease said real estate and to improve the same, and for that purpose to encumber the same in such manner and upon such terms as in the judgment of said trustee shall be for the bests interests of the trust estate herein and hereby created for the use and benefit of my said nephews and nieces.
“After paying the necessary expenses incident to the care and management of said real estate, including a reasonable compensation for its services, said trustee shall pay and distribute the net revenue derived therefrom, share and share alike among said children of my sister, Clothilda Longinotti, and to the descendants of any of said children who may have died leaving children, such descendants taking the parent’s share, paying the same directly to such children or other descendants as shall have reached the age of majority, and paying to the guardian of the minor children or other descendants or expending for their several benefits their respective share, according to the discretion of said trustee.
“Upon the death of the last survivor of my said sister’s children who shall survive me, the trust herein created shall cease and the property then constituting the trust estate shall rass to the then living descendants of my said sister, Clotilda Longinotti, share and share alike, such descendants taking per stirpes and not per capita.
“Said St. Louis Union Trust Company, and its successor or successors in trust, shall be authorized to sell and convey the fee simple title to said property at any time and upon such terms as in its judgment would be for the best interests of said trust estate, provided such sale meets.with the approval' in writing of a majority in number of my said nephews and nieces who are at the time of lawful age.
“In the event of such sale, said trustee shall hold the proceeds thereof as representing the corpus or principal fund of the trust estate, with power to reinvest the same in such other property or securities as in the judgment of said trustee will yield a safe and regular income, and from time to time change investments and make new investments as may be necessary for the proper preservation of the trust estate, the income derived therefrom to be divided and paid out in like manner as the net income from the real estate.
“The trustee herein is authorized out of the income derived from said real estate from time to time, as in its judgment may be necessary, to create a sinking fund out of the annual income for the purpose of making needed alterations and repairs in connection with the improvements located thereon or said trustee may from time to time make such repairs, alterations or improvements in connection with said real estate and uorrow the money therefor, providing a fund to repay said borrowed money out of the income thereafter to be collected from said real estate. Any loan so made by said trustee shall be a charge against the income derived therefrom as well as against the property itself. In making deductions from the income for the purpose of repayment of borrowed funds or for the purpose of creating a fund to repair or improve the property, the trustee shall exercise its own discretion as to the amounts of such deductions and when the same should be made.
“If at any time during the continuance of the trust herein created, the corporate charter of said St. Louis Union Trust Company shall • expire by limitation of time, and a new corporation of like powers shall be organized, pursuant to the laws of the State of Missouri relating thereto, for the purpose of continuing the business thereof, then I direct that immediately upon its organization, such new corporation shall be and become the trustee of the trust herein'created in place and instead of said expiring corporation, and shall be vested with all the rights, titles, estate, interest, powers and duties of such trustee, as herein set out, without the necessity of any further act or conveyance.”

On July 19, 1911, the St. Lonis Union Trust Company, as executor under said will, was granted letters testamentary upon the estate of said Theresa Bernero, deceased. Thereafter and on March 20, 1912 (and before the assessment of collateral inheritance taxes were assessed in the present proceeding), Louis Bernero, Jr., above mentioned, through his curatrix, instituted in the circuit court of the city of St. Louis a suit to contest the validity of the will of said Theresa L. Bernero, deceased. That suit is still pending, one phase thereof having reached this court. [Bernero v. Goodwin, 267 Mo. 427.] In- the above will contest suit the contestant Louis Bernero, Jr., claims to be' the sole heir at law of Theresa L. Bernero, deceased. The appellants here are parties defendant to said will contest.

On August 30,1911, said Louis Bernero, Jr., also filed in the circuit court of the city of St. Louis añ action to quiet the title to the Washington Avenue property, claiming the entire interest therein by virtue of the will of Louis Bernero, Sr., deceased. That action also remains undisposed of, one phase thereof having reached this court. [See State ex rel. Bernero v. McQuillin, 246 Mo. 517.]

I. Appellants contend that the judgment must be reversed because (1) the probate court, after final settlement of the Louis Bernero, Sr., estate, had no jurisdiction to entertain the present proceedings; (2) the first assessment of collateral inheritance taxes in said estate made during the pendency of administration of the-estate now operates as res adjudicata of the present right to an assessment and that further assessments are therefore barred. These points in their order. ■

The administration of the estate of Louis Bernero, Sr., was closed in December, 1908. This proceeding was not instituted in the probate court until January, 1912. Did the probate court have jurisdiction to en-proceeding? The determination of this question involves the construction of our collateral inheritance tax law. After a careful consideration of the same, we have reached the conclusion that this point should be ruled against appellant’s contention.

Strictly speaking, the assessment of collateral inheritance' taxes does not directly involve the administration of a decedent’s estate. The proceeding is one, not against the property of a decedent; it is not a claim against the estate as such, but is against the interest or property right which the heir, legatee, devisee, etc., has in the property formerly held by the decedent. [Sec. 309, R. S. 1909; State ex rel. v. Henderson, 160 Mo. 190, l. c. 215.]

This being true, unless the statute otherwise directs, no good reason would appear limiting the right to make such assessment to such time as the decedent’s estate was in the course of administration. Appellants contend that the language of section 326, Revised Statutes 1909, to-wit: “The court of probate having . ■ . . .jurisdiction of the settlement of the estate of the decedent, shall have jurisdiction to hear and determine all questions in relation to said tax that may arise,” etc., does so limit the jurisdiction of the probate court; that the phrase “having jurisdiction of the settlement of the estate” means “then exercising jurisdiction of the settlement of the estate” and that once the estate is closed its jurisdiction over collateral inheritance tax matters against property formerly owned by such decedent is also at an end. We are unable to agree with this construction. We are of the opinion that the phrase “the court of probate having jurisdiction of the settlement of the estate” simply means the particular court of'probate in any instant case upon which the law has conferred the right of administering the estate.

Now as to point two above: At the time of the first assessment of a collateral inheritance tax against any of the property formerly owned by decedent it was not then definitely known, nor could it be definitely foreseen, that any of the property involved in the present proceeding would ever be subject to such a tax. As the property then stood it was subject to a life estate in decedent’s wife with power of appointment in her, under which upon the happening of certain contingencies, she could, by will, dispose of this very property. As pointed out by the learned attorney for the respondent, if she had exercised such power of appointment, by devising the property to some educational, charitable or religious purpose in this State, the property would not have been subject to the assessment of the tax. [Sec. 309, R. S. 1909.] In other words, until a valid exercise of said power of appointment had been made or until the contingency of the possible exercise of the same should become removed it could not be foreseen that the property would be subject to a tax.

Under the facts as disclosed by this record, whether the wife would or would not undertake to exercise such power of appointment, could not have been known until her death on July 15, 1911, which was long after the first assessment was made. Under such conditions the former proceeding against the other property formerly owned by decedent then known to be subject to such a tax, would certainly not operate as res adjudicata as to the right to tax the present property not involved for the reason that it could not have been involved, as explained above, in the original proceeding. As to whether it would have been res adjudicata if the present property had then been subject to such an assessment, we do not decide, because not here involved.

II. The most serious question presented is whether or not the court should have proceeded, over the objection of appellants, to make an assessment so long as the will contest suit was pending.

The rights and interests of the appellants in said property, so far as this record discloses, are contingent upon the validity of said will and its ultimate establishment as a will. If the proponents of said' will (parties defendant in the will contest, including among others the appellants herein) fail to establish said will, then the executed power of appointment therein likewise fails and the property here involved will go to someone other than these appellants for aught the present record discloses.

A will contest suit is a unique proceeding. Once properly instituted the suit cannot be dismissed by the contestant alone, but must proceed to the final judgment of will or no will. It (a suit to contest the will) “has the effect to vacate the action of the probate court and leave the question devisavit vel non to be tried anew in the circuit court,” where the burden of proving its due execution is upon the proponents of the will. [Hogan v. Hinchey, 195 Mo. 527, l. c. 532.] And until the will contest is determined, it cannot be known who will share in the estate. Since it is the interest of the devisee, etc., and not the property of the estate, that is subject to such a tax, should a person be compelled to defend against the assessment of such a tax until it becomes known that he will have an interest in such property subject to such tax? In other words, is he not entitled to his day in court after it becomes definitely known that he will have an interest subject to the tax? We think he is so entitled.

In order that all questions of limitations might be kept out of the case, and as a matter of abundant precaution, we can see no particular harm resulting in having the proceeding timely instituted; but when so instituted and it develops that a will contest is pending which involves the very right to the property of the person against whose interest the tax is sought to be assessed, we think the further proceeding in the matter should stand postponed until the will contest is ended and it becomes known whose interest will be subject to such a tax.

This proposition appears to have been squarely passed upon by the New York Court of Appeals, by an unanimous opinion, in the case of Matter of Westurn, 152 N. Y. 93, l. c. 99-100. So far as we have been able to discover it is the only reported case upon the subject. For that reason we feel justified in quoting therefrom at some length.

“The litigation over the probate of the will of the decedent was finally terminated by the decision of this court, May 21, 1895, in favor of the contestants. It was not until the final determination of the controversy, by the judgment of this court, that it could be known whether the property of the decedent passed under his will or as in ease of intestacy, and, until this fact was ascertained, it was impracticable to proceed to fix the transfer tax under the act of 1892, or the prior statutes, since the ascertainment of the persons entitled to the property of a decedent must precede the .imposition of any tax. This has heen the uniform construction given by this court to the Transfer Tax Acts. It has been steadily maintained that the tax, while in a general sense a tax on the property of a decedent, is, in its essential nature, under the .legislation on the subject, a tax on the right to succession to the property, imposed upon and collectible out of each specific share or interest given by will or derived under the Statutes of Descent or Distribution, and limited as to each share or interest to its value, with a super-added personal liability for the payment of the tax by the person taking the interest. The tax is computed, not on the aggregate valuation of the whole estate of the decedent considered as the unit for taxation, but on the value of the separate interests into which it is divided by the will or by the statute laws of the State, and is a charge against each share or interest according to its value, and against the person entitled thereto. The principle that the tax is a succession tax imposed as a burden on each person claiming succession, measured by the value of his interest, and collectible out of his interest only, was reaffirmed in the ease In re Hoffman, 143 N. Y. 327, arising after the passage of the Transfer Tax Act of 1892, and the court rejected the contention that the principle of construction to which we have adverted, established under the acts of 1885 and 1887, was not applicable to the act of 1892. The court has applied this rule of construction to cases of future contingent interests given by will, which might never become vested, and also to cases where, although there may have been a technical vesting of a future estate, the estate was liable to be defeated before it came into actual enjoyment. [Matter of Curtis, 142 N. Y. 219; Matter of Roosevelt, 143 N. Y. 120; Matter of Hoffman, supra; see, also, In re Cager, 111 N. Y. 343.]

“The delay, therefore, in fixing the tax in the present case, awaiting the result of the contest over the will, was inevitable, and in no way chargeable to the heirs or next of kin, whose rights were first judicially ascertained and finally settled by the judgment in this court declaring the will to be void.”

The above ease bas also been, cited with approval in the late work of Blakemore and Bancroft on Inheritance Taxes, section 382.

We are, therefore, of the opinion that the assessment of said tax against the alleged interest of these appellants should have been postponed until the final determination of the will contest suit and that the court erroneously made the assessment at the time it did under the above conditions.

The judgment is therefore reversed and the cause is remanded.

All concur.


author: ROY, C. PER CURIAM:

text:
    HELLMAN COMMERCIAL TRUST & SAVINGS BANK, Appellant, v. ORAN E. LOONEY et al.
    Division Two,
    July 16, 1917.
    1. PROBATE OF WILL: No formal Judgment: Presumed From Facts. Where the testimony shows that the three subscribing witnesses appeared before the-judge and ex officio clerk of the probate court in vacation and,proved the execution of the will, and that their evidence in making such proof was put in writing and subscribed by them before such officer and certified by him, and that" such proof has been lost, and a certificate reciting such proof was attached to the will and it was recorded in the “Register of Wills” in the probate court, and thereafter letters testamentary were issued which recited that said will had “in due form of law been exhibited, proved and recorded, a copy of which is hereunto annexed,” and all the other proceedings were in harmony with and in execution o£ the will, it will be presumed' that there was a judgment admitting the will to probate, although it is not shown that any such judgment was -recorded or that the will was recorded in the office of recorder of deeds.
    2. -: -: Innocent Purchaser: Abstract. A purchaser who had in his possession an abstract of title showing that the will-had been recorded in the proper probate court, cannot claim that, because of the failure to record the will in the office of recorder of deeds as required by statute, he is an innocent purchaser without notice of the will.
    8, LEGACIES IN LIEU OF HOMESTEAD: Estoppel. If the widow , has accepted the provisions made for her out of the real estate which are incompatible with the retention by her of a homestead estate in the land, neither she nor those claiming under her can thereafter claim such homestead.

      Appeal from Polk Circuit Court. — Ron. C. R. Skinket, J udge.
    Affirmed.

      Johnson <& Sea for appellant.

      (1) A will is a muniment of title, only if duly probated; and the probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Snuffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Cohen v. Herbert, 205 Mo. 537; Farris v. Bur-chard, 242 Mo. 1. (2) One cannot acquire title to land as devisee under a will, where the will has never been established or probated. This purported will, never having been admitted to probate nor recorded in the recorder’s office, was, for that reason, inadmissible in evidence and could not pass title, over plaintiff’s objection. Bernard v. Bateman,-76 Mo. 414; Keyes v. Munroe, 266 Mo. 115; Snuffer v. Howerton, 124 Mo. 637; Farris v. Bur-chard, 242 Mo. 1. (3) Plaintiff by itself, as well as grantee of persons having paid valuable consideration for said land, without notice of the purported will of Benjamin Looney, and without means of knowing of same, is entitled to be protected. This court has repeatedly held outside wills, devising real estate in this State, must be recorded .in this State, in order to give notice. Is there any reason why the same rule should not apply to wills in this State? Van Syckel v. Beam, 110 Mo. 589; Keith v. Keith, 97 Mo. 223; R. S. 1909, sec. 566; Laws 1870, p. 166i (4) At the death of Benjamin Looney, in January, 1875, his widow took a homestead of 160 acres, if not exceeding in value $1500, which is invested in her by operation of law; to which she took a fee simple title, which descended to her children at her death; unless the interest devised her by Benjamin Looney’s will was greater in value than the widow “would have the right to take under.the law without reference to any wills.” The defendants in this case failed to show it was of greater value; without such showing the homestead vested absolutely in the widow. Instruction 2 asked by plaintiff should have been given. Schorr v. Etling, 124 Mo. 42;-Ball v. Ball, 165 Mo.'312; Burgess v. Bowles, 99 Mo. 543; Kelsey v. Frazier, 78 Mo. Ill; Preemel v. McCall, 73 Mo. 343. (5) The failure of the widow to renounce the will did not deprive her of her homestead. Scharr v. Etling, supra;' Bogart v. Bogart, 138 Mo. 419. (6) In January, 1875, when Benjamin Looney died seized of a homestead in fee, the same vested in his widow in fee simple and passed to her heirs after her death. Skouten v. Wood, 57 Mo. 380; Rogers v. Marsh, 73 Mo. 64; Mills v. Mills, 141 Mo. 195; Wilson v. Johnson, 160 Mo. 507. (7) It is beyond the power of the husband to devise the homestead, as much so as by his sole deed to convey or mortgage it. Koes v. Gross, 92 Mo. 647; Schneider v. Hoffman, 9 Mo. App. 280.

      Rechow & Pufahl for respondent.
    (1) The first and second points made by appellant are certainly good law, when the facts fit. (2) The cases, cited by appellant under point three, are in relation to the probating and recording of foreign wills. Counsel ask, “Is there any reason why the same rule should not apply to wills in this StateT’ There certainly is. A domestic will is probated in the county of the residence of the decedent. A record of the proceedings in relation to what has been done in the matter of the administration of the estate is found in the office of the probate court of that county. (3) Instruction 2, asked by appellant, was properly refused. (4) The will was properly probated and admitted in evidence. Lockland v. Stevens, 54 Mo. 108; Creasy v. Adams, 43 Mo. 13; Rothwell v. Jamison, 147 Mo. 601; Hartwell v. Parks, 240 Mo. 537; Farris v. Burehard, 242 Mo. 1. (5) The widow, having accepted under the will and neverv having renounced the same, took only such estate as was given in the will. Davison v. Davis, 86 Mo. 440; Burgers v. Bowles, 99 Mo. 548; Stoepler v. Silberberg, 220 Mo. 258; Wood v. Trust Co., 265 Mo. 525;' Schuster v. Morton, 187 S. W. 2.
   ROY, C.

This is a proceeding to quiet title to two hundred acres of land in Polk County, under section 2535, Revised Statutes 1909.

Benjamin Looney died in January, 1875, seized of 258 acres of land in that county of which the land in controversy is a part. He, at the time of his death, was living upon the land in controversy with his family, which consisted of his wife, Mary M., and three sons by said wife, to-wit, Benjamin L., Jesse E., and William S., all of whom are still living, the defendants herein being the only living children of those three children of the deceased. All of the defendants are minors, appearing by their guardian ad litem.

The deceased and his wife each had three children by former marriages. He left a will the material parts of which are as follows:

“(3rd.) I will and bequeath to my beloved wife, Mary Malica Looney, two work horses, my two-horse wagon and harness, four milch cows and calves, twenty head of hogs and all my sheep, all my household and kitchen furniture and a sufficiency of all the provisions that may be on hand at the time of my death for her and her children that may at that time reside with her as members of the family, for one year’s support, and I further will that my said wife have and be allowed three hundred dollars in hard money out of what hard money may be on hand at my death, and I will that the above described and mentioned articles be allowed to my wife, Mary Malica Looney, absolutely, they and the property and interest hereinafter willed and devised to her to be in lieu of all her dower interest in my estate, both real and personal.
“(4th.) I will that all my real estate situated in the county of Polk, in the State of Missouri, known and described as the home place on which I now reside, remain in the possession and control of my wife, Mary Malica Looney, as long as she remains my widow, for the use and support and maintenance of herself and Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, my youngest sons. And in the event of the death or marriage of my said wife, then and in that event, all of said before mentioned real estate shall descend and absolutely belong to my said sons, Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, and the heirs of their bodies, share and share alike, and in case of the death of either of them, without heirs of his body, then and in that event the said named real estate shall descend and rest absolutely in the survivors of them, and in case of the death of all three of them without bodily heirs, then and in that case, all of said lands shall be equally divided between my other children, as follows: To Alzira Ruyle one-third part of said real estate, to Matilda Mitchell one-third part of said real estate, to the heirs of Mary Ruyle, deceased, equal shares of one-third part of said real estate, and in the event that said real estate cannot be divided between them in accordance with this my last will, then the same shall be sold to the best advantage by my executor and the proceeds divided as before stated. ”

The testimony tends to show that three subscribing witnesses to that will appeared before the judge and ex-officio clerk of the probate court in vacation and. proved, the execution of the will, and that their evidence in making such proof was put in writing and subscribed by them before such officer and certified by him and that such proof had subsequently been lost. Attached to said will was the following writing:

“In the Polk County Probate Court.
“Be It Remembered, That, on the 30th day of January, A. D. 1875, personally appeared before me, Judge of Probate for the County and State aforesaid, James P. Slagle, James Utley and Joseph Davis, the subscribing witnesses to the within will of Benjamin Looney, deceased, and being by me first duly sworn, depose and say that the’ said Benjamin Looney, the testator, subscribed the same in their presence, and published said will or instrument of writing as his last will. That he, the said testator, was at the time of publishing his said will, of sound mind, and that they, said deponents, attested said will as witnesses thereto by subscribing their names to the same in the presence of each other and of said testator.”

That will was duly recorded at the time in the “Register of Wills” in the probate court, but was never recorded in the office, of the recorder of deeds.

At the trial no formal entry of a judgment of the probate court admitting the will to probate was put in evidence. Judge Recho.w of the probate court testified that he helped counsel for defendants search the records of said estate in that court, and, during his cross-examination, the following occurred:

“Q. Now, did you find any order of record admitting this will to probate? A. No, sir, I don’t think I did.
“Q. Do yon know whether you did or not? A. Yes, sir, I don’t think it was ever found.”

But the records of the court were not put in evidence to show that they contained no such entry.

The letters testamentary contained this recital:

. “Know Ye, That the last will of Benjamin Looney, deceased, hath in due. form of law been exhibited, proved .and recorded, a copy of which is hereunto annexed; and inasmuch as it appears that Reuben C. Gilmore has been appointed executor in and by said last will to execute the same,” etc.

The executor made his settlements as such in the court, and, so far as the evidence shows, the whole administration was conducted by the executor and by the court as though there had been a formal judgment of probate of the will. The distributions were made on that basis, and the widow receipted to the executor for the personal property devised to her.

The widow, for several years after her husband’s death, lived on the land in controversy, with the three children of her last marriage, then moved elsewhere, dying in the West about ten years before the trial; but during all her life after Looney’s death she was in receipt of the rents of all the lands of the estate. In 1895 said Benjamin L. and Jesse E. Looney conveyed the land in controversy to their brother William S., under whom the plaintiff claims through intermediate conveyances.

At the trial plaintiff’s counsel produced an abstract of title to the land in controversy, showing thereon an abstract of said will as being of record in the probate court of that county. That abstract was certified as having been originally made a few days before the conveyance of the land in 1895 by two of the Looney brothers to the other. Mr. Sea, of counsel for the plaintiff, testified that he got the abstract from lawyers in California who represented this plaintiff, but he made no explanation as to when the plaintiff or those under whom, it claims first came into possession of the abstract. The children of Mrs. Looney by a former marriage conveyed any interest they may have had in the land to the plaintiff.

The trial-court entered a judgmént in which it found that Benjamin Looney was living on the land in controversy at the time of his death and that he had a homestead therein, and that his.widow, after his death, had possession of all his lands and collected the rents therefrom until her death, and that said Benjamin Looney executed the alleged will as his will, and that the same was admitted to probate. Said judgment adjudged to the plaintiff the life estates of Benjamin L., Jesse E. and William S. Looney, and to the minor defendants the remainder in said land to take effect in possession on the death of said three children of said testator.

I. Appellant contends that the judgment admitting a will to probate is a judicial act, and that it can be shown only by the record of the court. That is true as a general proposition, but it has been held that in some cases the law will, from given facts, indulge the presumption that such a judgment has been rendered. In Creasy v. Alverson, 43 Mo. 13, there was no showing as to whether the record of the probate court showed such judgment probating the will. It was held that tbe will having been proved before the clerk of the probate court and recorded in the record of wills in that court with the proof endorsed thereon, according to law, there was a presumption that it had been duly admitted to probate.

In Rothwell v. Jamison, 147 Mo. 601, there was no showing as to whether the record of the probate court showed a formal judgment probating the will, but it was held that such will with the proofs by the subscribing witnesses thereto attached having been duly recorded in the records'of the probate court as required by law there was a presumption that there had been entered such a judgment of probate.

In Hartwell v. Parks, 240 Mo. 537, the records of the probate court had' been destroyed by fire. This court therein cited and approved the two cases above mentioned.

In Lackland, Admr., v. Stevenson, 54 Mo. 108, l. c. 111, there was no record of any formal judgment of probate, but the will had been duly proved and, with the proof, duly recorded in the probate court. Letters of administration with, the will annexed were issued and the estate duly administered thereunder. It was there said:

“For all purposes connected with this case, the appointment of an administrator with the will annexed, reciting the due proof of the will, made to a person whose rights were subservient to those of the widow, and made upon a communication from her that she did not wish to execute the will, and preferred the one appointed, is a record admission of the probate — although, in form, the records do not show such probate.
“It is probable, that the records of probate courts, in many cases, do not show a regular and formal judgment upon wills, but simply a record of the will and the proofs of its due execution, without any specific action of the court, or formal judgment of the court upon such will and the proofs to establish it.
“The appointment by the court of the executor named in the will, or, in case of her renunciation, of such person, as the statute authorizes, as administrator with the will annexed, assumes, that the court has passed upon the sufficiency of the proofs, and admitted the will to probate. Doubtless this assumption might be contested by the proper parties in due time. In this ease the administrator was allowed to progress, with the assent of the plaintiff, and the land in question to be sold under the administration five years after the death of the testator, and seven years more elapsed before renunciation was made and this suit brought.”

In Farris v. Burchard, 242 Mo. l. c. 10, this court cited the Lackland case with approval, but' said:

“Those cases go as far to sustain the plaintiffs’ theory of this case as this court has ever gone, but to fully sustain the plaintiffs’ theory we would have to go one step farther. This will was never recorded, therefore it lacks that important fact which was in the cases referred to, and as the court in the case last cited held that it should be presumed that the clerk in recording the will in that case did his duty and waited until it had been probated, so the presumption in the case at bar should be that the clerk did his duty in withholding this will from record because the court had not by its judgment declared it duly probated.”

We call attentioon to the fact that while Section 563 of our Eevised Statutes requires the clerk of the probate court to record the will in the probate records, Section 566 does not name the party who shall file the will for record in the office of the recorder of deeds. We hold .that all the proceedings in the probate court as above shown being in harmony with and in execution of said will, and there being nothing left undone which the law requires to be done in such matters except the mere failure to enter such formal judgment of record, those proceedings in the probate court should be and are treated as equivalent to such formal entry of judgment.

Plaintiff contends that by reason of the failure to record the will in the office of the recorder of deeds as required by the statute it is an innocent purchaser without notice of such 'will. Without deciding what is the effeet of such failure to record the will, we hold that the plaintiff is not in a position to claim the benefit of that statute. This court is presumed to know what are the uses generally made of abstracts of title to real estate. The evidence shows the making of such abstract of the title to this land just a few days prior to the first transfer of the title after the testator’s death. That abstract showed said will.' It was in the possession of plaintiff’s counsel at the trial. The circuit court had the right to infer as a fact that snch abstract of title had passed with the title from the sons of the testator through the hands of intermediate purchasers to the plaintiff. The judgment was based on such inference and there is no reason why we should interfere with it in that respect.

III. The widow, having accepted the provisions made for her out of the real estate of the deceased, and those provisions being incompatible with the retention by her of the homestead estate in such land, neither she nor those claiming under her could thereafter claim such homestead. [Schuster v. Morton, 187 S. W. 2; Wood v. Trust Co., 265 Mo. 511, and the cases there cited.]

The judgment is affirmed.

White, C., concurs.

PER CURIAM:

The foregoing opinion, of Roy, C., is adopted as the opinion of the court.

All of the judges concur; Faris, J., in result.