text:
    WILLIAM A. BRANDENBURGER, Appellant, v. MATHILDA A. PULLER et al.
    Division Two,
    January 6, 1916.
    1. PUBLIC POLICY: Settlement of Litigation. Absent fraud in its various forms, or unlawful or insufficient consideration, settlements tending to avoid litigation and family discord aré not contrary to public policy, whether made by all or only a part of those concerned.
    2. -: -: Consideration. An agreement of a person legally in a position to contest a will, to refrain from opposing its establishment, in consideration that a definite sum of money be paid to him by the residuary legatee, is supported by mutual considerations.
    3. --: -: Will Contest. Testatrix gave the great bulk of her property to a residuary legatee who was not an heir at law. ■ Five legatees who were heirs and one heir who was not a legatee, together with the marital consorts of two of them, instituted a will contest in the circuit court against said residuary legatee, her husband and thirty-two other persons. Before the action had been tried the eight plaintiffs, and six defendants, some of whom were heirs at law but not-legatees, as parties of the first part, entered into an agreement with the said residuary legatee and her husband by which said first parties affirmed said will as the last and lawful will of tbe testatrix and. agreed that it might be taken and proven as such without further objection, and that upon the payment to them of $9,500, their interest in said estate, whether as heirs or legatees, should vest in said residuary legatee. Of this amount $1500 was to be applied to the payment of attorney’s fees and costs which had accrued in the suit, and the balance was to go in equal shares of $1000 each to the eight persons directly interested. Thereafter the parties of the first part appeared in open court, announced their desire to discontinue .the action, and fully informed the court of the terms and pur- ' pose of the compromise agreement. Thereupon, another defendant, who was an heir and legatee, but not a party to the compromise agreement, was permitted, by order of court, to plead as a party plaintiff, and to continue the prosecution of the action, which she did as sole plaintiff,, and the trial resulted in a judgment sustaining the will. IS eld, that the compromise agreement was not contrary to public policy, w-as supported by a valid consideration, was free from fraud, and is binding on the residuary legatee.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    Reversed and remanded.

      Wagner & Miller and Henry 8. Caulfield for appellant.
    (1) The agreement is based upon a valid consideration sufficient to support the promises of the defendants. Grochowski v. Grochowski, 15 Am. & Eng. Ann. Cas. 300', 13 L. R. A. (N. S.) 454 and case note; Waller’s Adnxs. v. Marks, 100 Ky. 541; Ruth v. Krone, 10 Cal. App. 770'; Palmer v. North, 35 Barb. 282; Hartle v. Stahl, 27 Md. 157; St. Marks -Church v. Teed, 120 N. Y. 585; Clark v. Lyons, 38 Misc. (N. Y.) 516; Gaither v. Bland, 7 Ky. L. R. 518. (2) Such agreements are not opposed to public policy. On the contrary, public policy favors them because they preserve the harmony of the family and prevent disputes and litigation. It concerns the State that an end should be put to litigation. Cases supra and Andrews, v. Linebaugh, 260 Mo. 650; Moss v. Cohen, 158 N. Y.

      240; Barrett v. Carden, 65 Yt. 430; Sclioonmaker v. Gray, 208 N. Y. 209; Leacli v. Póbes, 11 Gray, 506; Stringfellow v. Early, 15 Tex. Civ. App. 597"; Banghey v; Minor, 1 Prob. L. B. 181 (Eng.); Page on Contracts, sec. 341. (3) It is immaterial that all the defendants to the will contest suit were not parlies to the agreement. Moss v. Cohen, 158 N. Y. 240; Hambleton v. Yocum, 108 Pa. St. 304; Schoonmaker v. Gray, 208 N. Y. 209; Buth v. Krone, 10 Cal. App. 770; Todd v. Todd, 159 111. 408; Waller’s Admx. v. Marks, 100 Ky. 541; Iiogan v. Hinchey, 195' Mo. 527; Andrew v. Linebaug’h, 260 Mo. 650; Gay v. Sanders, 101 Ga. 601. (4) Courts will not declare contracts void on grounds of public policy except in cases free from doubt, and prejudice to the public interest must clearly appear before a court is justified in pronouncing an agreement void on this account. Barret v. Carden, 65 Yt. 430; Bichmond v. Bailroad Co., 26 Iowa, 191; Melloyne v. Larkin, 3 Penn. 123, 56 Am. Dec. 164; Bichardson v. Mellish, 2 Bing. 229, 9 Eng. Com. L. 557.

      8clmurmacher d Rassieur for respondents.
    Although family settlements, joined in by all parties in interest, are favored by the law, because tending to avoid litigation, yet an agreement by only a part of those concerned, not to press a will contest, is against public policy, because it has a tendency to interfere with the ordinary course of justice, and will not be upheld. Bidenbaugh v. Young, 145 Mo. 274; Porter v. Jones, 52 Mo. 399; Gray v> McBeynolds, 65 Iowa, 461; Cochran v. Zachery, 137 Iowa, 785; 15 Am. & Eng. Ency. Law (2 Ed.), p. 977.
   REVELLE, J.

A general demurrer to plaintiff’s second amended petition having been sustained, plaintiff declined to plead further and final judgment was thereupon entered for defendants.

The petition alleges, in substance, the following:

Mathilda A. Largue died leaving a will, which was admitted to probate in the probate court of the city of St. Louis on October 16, 1909. Numerous legatees and their legacies were designated in the will, and the residue, being the major portion of the estate, was given to the defendant Mathilda A.'Puller. Her husband and co-defendant, Edward S. Puller, was appointed one of the executors. By the 12th clause of the will it was expressly provided that the legacy of any person contesting the will should be revoked.

On December 2, 1909, a suit, contesting the will, was instituted in the circuit court of the city of St. Louis by eight plaintiffs, five of whom were grandnieces, legatees and heirs at law of the testatrix, and one of whom was a grand-nephew and heir at law, but not a legatee; and two of whom were a wife and husband, respectively, of two of the other plaintiffs. There were thirty-four defendants, of whom two were executors; four were heirs at law, but not legatees; fourteen were legatees, as well as heirs; three, including the defendant Mathilda A. Puller, were legatees, but not heirs at law; and eleven were joined merely as husbands or wives of heirs at law who were parties defendant.

On March 9, 1910, and before the cause had been tried, an agreement in writing was entered into making a compromise and settlement between certain parties upon an agreed basis. The fourteen first parties to this agreement consisted of and included all of the eight plaintiffs in the suit, and six of the defendants therein, some of whom were heirs at law, but not legatees. The second party to the agreement was the residuary devisee and legatee, Mathilda A. Puller, a defendant in the suit therein and herein, and to whom was devised the larger part of the estate. An agreement guaranteeing her fulfillment and performance of this contract was executed by her husband and co-defendant Edward S. Puller.

By this agTement, and in consideration of the covenants of Mathilda A. Puller, and of the guaranty of Edward S. Puller, all of the parties of the first part affirmed said will as the last and lawful will of the testatrix and admitted and agreed that it was and might be proven and taken as such without further objection on their part, and agreed that upon the payment of the sum of $9500 to them their interest in said estate, whether as heirs or legatees, should vest in said Mathilda A. Puller. Of the $9500 thus stipulated, $1500 was to be applied to the payment of attorneys’ fees and costs which had accrued in the suit, and the balance of $8000 was to be paid in equal shares of $1000 to each of the eight parties directly interested. It is further alleged that all of the parties to this agreement were of lawful age and legally capable of contracting. This sum of $9500 was to be paid to plaintiff for himself and as trustee for his beneficiaries whenever the "second party received from the estate an amount equal thereto.

It is further alleged that the parties of the first part fully performed the agreement on their part and made no further contest of the will and no further efforts to prosecute the suit; that they appeared by their attorney in open court and announced their desire to discontinue its prosecution and fully informed the court of the terms and purpose of the compromise agreement. Thereafter, Sadie Ferree, an heir and legatee and one of the defendants in the suit, but not a party to the compromise agreement, was permitted, by order of court, to plead as a party plaintiff, and to continue the prosecution of the action. She filed her petition as sole party plaintiff, and, as such, prosecuted the suit in the circuit court, where a judgment sustaining the will was rendered. She afterwards took an appeal, but this she dismissed, and the will then became finally established. None of the parties to the agreement rendered voluntary aid or assistance to her in the prosecution of this action, but some of them, after being duly subpoenaed, testified at the trial concerning facts within their knowledge.

The petition alleges as a breach of contract by the defendants, that, although on July 8, 1911, there was turned over and paid to Mathilda A. Puller, by way of partial distribution of her residuary legacy, assets of the estate to the actual cash value of $75,000, the defendants herein have failed and refused, and still fail and refuse, to pay, or cause to be paid, any part of the $9500.

The demurrer to the petition was general, and was sustained upon the theory that the contract sued upon was, under the circumstances stated in the petition, void, as being against public policy.

OPINIONS.

This case hinges upon a single proposition. Respondents concede that settlements tending to avoid litigation and family discord, when joined in by all parties in interest, are favored by the law, and on this there can scarcely be any difference of opinion. Family dissensions, like small streams, gather as they run, and when we consider their usual result we feel that it is sound public policy to encourage their allayment. Respondents urge, however, that the question of good or bad public policy depends upon whether the settlement was made by agreement of all or a part of those concerned, and if by only a part, then it is contrary to public policy, in that it tends to interfere with the ordinary course and administration of justice. Absent, in its various forms, the element of fraud, or unlawful or insufficient consideration, this distinction is not sound and is without justification.

The case of Ridenbaugh v. Young, 145 Mo. 274, relied upon principally by respondent, announces no contrary doctrine. In that -case a suit had been brought to annul the will of plaintiff’s deceased father. Plaintiff’s sister and nephew, both devisees under the will, were made defendants. The plaintiff and his defendant sister, without the nephew’s knowledge, agreed that plaintiff should prosecute the suit, and if he succeeded in having the will set aside he would pay his sister a certain sum; and, in consideration of this, she agreed to pay all costs and attorney’s fees in the will contest suit. The crucial of that decision -is thus expressed by its writer: “From reading this contract there is no escape from the conclusion that it was entered into for the purpose of defrauding George Young Ridenbaugh, and of imposing upon the court, under the pretense by Mary T. Ridenbaugh that she was acting in concert with her co-defendant, George Young Ridenbaugh, in resisting the suit to set a&ide the will, while at the same time she was conniving with her brother to bring about a different result, and had entered into a contract with him by which she was to pay the costs and lawyers’ fees in the prosecution of the suit, and to receive from him in return therefor the sum of $10,000 if the will was set aside. . . . It was not only a fraud upon one of the parties to a suit, but was an imposition on the court.” To the doctrine thus announced we give our hearty concurrence, because a fraud of that caste should vitiate any agreement.

The case of Gray v. McReynolds, 65 Iowa, 461, was decided upon the same theory of actual fraud and wrongful intention.

The case of Porter v. Jones, 52 Mo. 399, was determined upon grounds of public fraud — the trafficking in appointments of administrators, and the corrupt procuring of an appointment to an office of trust.

This is a substantial epitome of respondents ’ authorities, and, as seen, they do not sustain their contention. Ordinarily, a party has the legal right, at any time, to dismiss his suit upon such terms, and under such conditions, as he sees fit, and, under the authorities, it cannot be doubted that the agreement of a person, legally in a position to contest a will, to refrain from opposing its establishment is a sufficient consideration to support a promise to pay. By such forbearance the proponents of the will gain its establishment, insofar as the threatened contestant is concerned, and he, in turn, surrenders the power secured to him by law to protect rights which he believes exist, and which he otherwise might have legally established. We know of no rule of public policy which requires a person to contest his ancestor’s sanity, or to continue a costly suit to the depletion of his own funds and those of the estate after his own rights have been conceded and secured. It is true that in this State it has been held a contestant cannot dismiss his suit in a will contest until due proof of the execution of the will has been made (Hogan v. Hinchey, 195 Mo. 527), but this does not preclude the parties, in the absence of fraud, even though some are exacting and dissatisfied, from agreeing upon the proof or conceding its sufficiency, and thus avoiding the expense and trouble of litigation. The primary purpose of this law is not to encourage litigation, but to prevent fraud in the establishment and probate of wills. Such a ruling, if bearing it has upon this subject, only tends to emphasize the right of one contestant to compromise and settle his own claims. This ruling prevents only and both the institution of contest suits within the statutory period by one person and his compromise thereof to the detriment and injustice of others who have re-framed from filing suits' because of tbe one instituted and the establishment of wills without due proof thereof. As was done in this case, any defendant, or co-plaintiff, who is not satisfied with the adjustment made by any one or more of the plaintiffs and defendants, can continue ‘the prosecution of the suit and thereby prevent any prejudice to his rights.

In the case at hand there is no intimation of fraud or wrongful intention. Insofar as the allegations of the petition here go, the plaintiffs, in good faith, entered into an agreement which protected their rights and ended litigation. Its tendency was to promote family peace and harmony and avoid trouble and expense. There was no fraud perpetrated upon the court, as the terms and purpose of the compromise agreement were made known to the court. It is also evident that all parties to the action, both plaintiffs and defendants, were aware of the terms and purpose of the agreement, since the record discloses that upon its announcement in open court one of the parties defendant was made a party plaintiff, and continued to prosecute the action. No fraud was contemplated and none resulted; all interested parties were in court and had opportunity to object to the settlement if they saw fit. Other defendants cannot complain that their antagonists did not further pursue them, especially when, by'their own actions, they invited a cessation of hostilities. Agreements similar to this have been quite uniformly upheld. [Grochowski v. Grochowski, 77 Neb. 506, 15 Am. & Eng. Ann. Cas. 300; 13 L. R. A. (N. S.) 484, and cases cited; Andrew v. Linebaugh, 260 Mo. 623; Barrett v. Carden, 65 Vt. 431; Waller’s Admx. v. Marks, 100 Ky. 541; Moss v. Cohen, 158 N. Y. 240; Schoonmaker v. Gray, 208 N. Y. 209; Todd v. Todd, 159 Ill. 408.]

It is our opinion that the agreement sued upon was not contrary, but on the other hand conducive, to public policy, and that tlie trial court erred in bolding to tbe contrary. The judgment is therefore reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed.

Faris, P. J., and Walker, J., concur.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    R. S. ANDERSON, Appellant, v. O. W. SHOCKLEY.
    Division Two,
    January 6, 1916.
    1. SLANDER: Instruction: Confining Jury to Specific Charge. In an action for slander, wherein the petition charges only that defendant in the presence of a named person called plaintiff a thief, an instruction which tells the jury that they cannot find for plaintiff unless they find from the evidence that defendant in the presence and hearing of said witness spoke the defamatory words stated, even though he spoke such words, to other persons at different times and places, is not error, if to it is added, or by another instruction the jury are told, that the words spoken to others may be considered for the purpose of showing malice.
    2. --: -:--: Malice: Pleading. In a slander suit plaintiff must either confine himself to one publication as a basis of recovery, or charge each separate and distinct publication upon which he seeks a recovery in a separate count. But although he charges only one publication as the basis of his action, and can recover only for that, he is entitled to an instruction telling the jury that, if they find from the evidence that defendant spoke of and concerning plaintiff slanderous and defamatory words like those charged, they can consider such evidence as tending to show express malice. But he is not entitled to recover damages for such publication to others not charged.
    3. -: Pleading: Rule Changed by Statute. The common-law rule has not been so changed by statute as to relieve plaintiff in a slander suit from the necessity of definitely averring when and where the defamatory publication was made. The statute (Sec. 1837, R. S. 1909) has changed the rule only to the extent of relieving him of the necessity of alleging “any extrinsic facts for the purpose of showing the application to plaintiff of the defamatory matter.”

      Appeal from Maries Circuit Court. — Hon. John M. Williams, Judge.
    Reversed „ and remanded.

      G. C. Bland, J. J. Grites and L. V. Hutchison for appellant.
    (1) The question whether or not the defendant was actuated - by malice in uttering the defamatory words alleged in the petition was for the jury, and the court erred in refusing instruction number 8, asked by the plaintiff, authorizing the jury to take into consideration the evidence showing that defendant had on divers occasions prior to July, 1908, uttered defamatory words similar to those charged in the petition. 18 Am. & Eng. Ency. Law, p. 1012; Anderson v. Shockley, 159 Mo. App. 334; Buckley v. Knapp, 48 Mo. 152; Callahan v. Ingram, 122 Mo. 355; Harrell v. Plimpton, 166 Mass. 585; Collins v. State, 39 Tex. Crim. 30; Casey v; Hulgan, 118 Ind. 590; Beneway v. Thorp, 77 Mich. 181. (2) No person was named in the petition to whom, or in whose presence the defendant uttered the slanderous words charged in the petition, and it was competent for plaintiff to prove that he uttered the defamatory words in the presence of one or more persons, although the utterances may have been on different occasions, provided they were made within the time and at the place alleged, it being a question of fact for the jury as to whether or not there was a publication. 18 Am. & Eng. Ency. Law, p. 1013. And it was error to refuse to submit this question to the jury on Vaughn’s testimony, as was done by the court in refusing instruction number 9 asked by the plaintiff. Atwinger v. Fellner, 46 Mo. 276; Bradshaw v. Perdue, 12 Ga. 510; Downs v. ITowley, 112 Mass. 237; Perry v. Potter, 124 Mass. 338; Sec. 1837, R. S. 1909; Johnson v. Bush, 171 S. W. (Mo. App.) 636. (3) By instruction number 4 given for the defendant the court narrowed the scope of the petition and testimony as to time and place of the utterances of the defamatory words, confined the plaintiff to a definite and particular date and to a located and specific place not alleged in the petition, and in effect withdrew the evidence of James P. Vaughan from the consideration of the jury, by whom plaintiff proved all of the slanderous words alleged in the petition, within the time and at the place alleged. This instruction in thus limiting both the place and the evidence is fatally defective. Pottery Co. v. Folckemer, 131 Mo. App. 105; Eckard v. Transit Co., 190 Mo. 593; Shanahan v. Transit Co., 109 Mo. App. 228; Imboden v. Transit Co., Ill Mo. App. 220; Phelan v. Paving Co., 115 Mo. App. 435.; Boyce v. Bail-road, 120 Mo. App. 175; Bose v. Spies, 44 Mo. 20; Meyer v. Bailroad, 45 Mo. 137. The allegations that the slanderous words were uttered on about July 30th, at the county of Pulaski, did not require the plaintiff to prove their utterance on that particular date, nor confine him to proof of any special or particular spot or time in Pulaski County. Black’s Law Diet., p. 849; Brown v. Biddle, 3 Ala. App. 292; Keer v. State, 105 S. W. (Tex.) 54.

      Frank II. Farris and W. D. Johnson for respondent.
    (1) Appellant had a right, no doubt, to have the jury told that if they found for him, in assessing the damages sustained, they could take into consideration the publicity given thereto, by the repetition thereof of respondent, or by his speaking of words of similar import. This appellant did not ask, and having taken no action and made no request for such a declaration, he cannot now complain. Estes v. Antrobus, 1 Mo. 121; Weaver v. Hendricks, 30 Mo. 506; Pennington v. Meeks, 46 Mo. 220; Barbee v. Hereford, 48 Mo. 325; Buckley v. Knapp, 48 Mo. 161; Hammon v. Douglas, 50 Mo. 442; Rammell v. Otis, 60 Mo. 366; Carpenter v. Hamilton, 185 Mo. 615; Isreal v. Isreal, 109 Mo. App. 373. (2) Testimony of other similar slanders at other times and places, and in the presence of other parties, could not he permitted as the basis of his cause of action, because it was of a different time and different place and of different words than that set out in his petition; and because such proof of such other slanders was only admissible to show the degree of publicity given to the slander, and to fix the probable damage which he may have sustained. Having elected and chosen the statement upon which he would base his action, and having proceeded upon it until the trial was complete, he could not be permitted to shift his action to another cause, entirely different from that which he had pleaded. 25 Cyc. 436; Walter v. IToeffner, 51 Mo. App. 49; Pennington v. Meeks, 46 Mo. 217; Christal v. Craig, 80 Mo. 370; Lewis v. McDaniel, 82 Mo. 586; Yanloon v. Yanloon, 159 Mo. App. 269; Con-ran v. Fenn, 159 Mo. App. 681; Flowers v. Smith, 214 Mo. 129.
   FARIS, P. J.

Plaintiff sued defendant in Pulaski County for slander. The venue was changed on the application of defendant to Maries County, where the case was tried, a verdict rendered for defendant and plaintiff appealed. The sum claimed as damages was ten thousand dollars; hence our jurisdiction. We may say in passing that this case has been tried before, wherein defendant mulcted in damages in the sum of $1250, appealed and obtained a reversal and a new trial. [Anderson v. Shockley, 159 Mo. App. 334.] To the latter case reference is made for such of the facts as we may not deem it necessary to set out herein.

Since upon the instant appeal no points are made except as to the action of the court in giving three instructions, which we set out in our opinion, we need not here go very extensively into the facts. The petition upon which the trial below was had, contains but one count, the charging part of which and which alone is pertinent here, runs thus: “Plaintiff for his second amended petition herein states that the defendant on or about the 30th day of July, A. D. 1908, at the county of Pulaski, in the State of Missouri, wilfully, wantonly and maliciously spoke of and concerning the plaintiff, R. S. Anderson, certain false, defamatory and slanderous words, to-wit: ‘R. S. Anderson (meaning the above-named plaintiff) is a thief; that he (meaning plaintiff) stole a set of harrow teeth from me and I can prove it by John Ormsby.’ ” Thereafter followed prayer for judgment in the ordinary form.

The evidence on the part of plaintiff tended to prove that about the latter part of July, 1908, at the railroad depot in the town of Crocker, in Pulaski County, defendant spoke to plaintiff in the presence of one Albert Manes sufficient of the words complained of to form substantially the statement set out in the petition. Testimony was also offered on the part of plaintiff that defendant at divers other times and places, particularly to one James F. Vaughan and to a certain J. M. Carmack, made statements of similar import, in which he charged plaintiff with having-stolen his harrow teeth. The first instruction asked by plaintiff and given by the court made specific reference to the alleged defamatory words spoken in the presence of the witness Albert Manes.

The answer of defendant was, among other things not pertinent, a specific denial of the fact that he spoke the words charged. The proof of defendant tended to show that he had not spoken to plaintiff in the presence of witness Albert Manes the defamatory words alleged and shown by the testimony of said Manes, or in the presence of anyone else. The defense made a very serious attack upon the general reputation of the witness Albert Manes for truth and veracity. In addition, the defense sought to impeach Manes by showing' by other witnesses (who said they were present at the railroad station in Crocker at the time defendant is said by this witness to have uttered the words charged), that no such conversation was in fact had between defendant and plaintiff.

The three instructions complained of, the giving of one of which for defendant and the refusal of two of which for plaintiff-constitute the only assignments of error, will be found set out in the opinion, together with such other facts as we may find to be necessary to make clear the discussion.

But three points are made by appellant, each of which as stated, has to do with instructions, either given or refused. At the request of defendant the learned trial court gave this instruction, to-wit:

“No. 4. Unless you find from the evidence that the defendant spoke of and concerning plaintiff at Crocker, Missouri, on or about the 30th day of July, 1908, in the presence and hearing of witness Manes the alleged defamatory words stated in plaintiff’s petition, you cannot find the issues for plaintiff, even though you may believe from the evidence that defendant spoke such words to other parties at different times and places.”

Appellant contends that in this the learned judge nisi erred. We disallow this point and hold the instruction correct in principle. If it was adventitiously wrong, the fact was due to another error, which we hereafter discuss. It was the duty of plaintiff to confine himself to one publication as a basis of recovery; or else to have charged each separate and distinct publication upon which he sought recovery in a separate count. [Christal v. Craig, 80 Mo. 367.]

II. Appellant contends that the- court erred in refusing to give at his request instruetions numbered eight and nine, which are as follows:

“No. 8. The court instructs the jury that if you believe and find from the evidence that the defendant in the presence and hearing of J. M. Carmack, or others, spoke of and concerning plaintiff slanderous and defamatory words similar and of like import to those charged in the petition, they may consider such evidence as tending to prove express malice on the part of the defendant.
“No. 9. The court instructs the jury that if you believe and find from the evidence that at any time within two years of the time of filing this suit, to-wit, the 19th day of August, 1908, the defendant maliciously spoke of and concerning the plaintiff, R. S. Anderson, in the presence and hearing of James F. Vaughan the words alleged in the petition, to-wit: ‘R. S. Anderson (meaning the plaintiff) is a thief. That he (meaning plaintiff) stole a set of harrow teeth from me and I can prove it by John Ormsby,’ you will find the issues for the plaintiff and assess his damages at such sum as you may believe and find he is entitled to recover, not to exceed the sum of ten thousand dollars.”

We are of the opinion that instruction eight should have been given and that the refusal of the court to give it constituted error for which this case must be reversed and remanded. We are, however, of the opinion that the court did not err in refusing to give instruction nine. The reasons for all three of these rulings are germane to each other and are such that all points raised can for brevity and clarity well be considered together. This is so, for the reason that if appellant’s contentions are each the law, divers publications to divers persons at different times and places could be pleaded in one count, proved upon trial, and plaintiff could pick and choose the one on which he would stand; or even, stand upon all and failing and refusing to elect, leave the jury to pick from among them some one or more publications on which to bottom a verdict. We have said that this is not the law; the contrary is well settled. On the other hand if it is the law as respondent contends that said instruction four was properly given and instruction eight properly refused, then a plaintiff in a slander suit is bound to the one publication specifically counted on and may not prove for any purpose whatever the fact of the publication, to others than those (if any) set out in his petition, of slanderous words of like or similar import to those charged in the petition. We think neither position is throughout correct ; but since the rules of pleading and practice upon which a solution of these contentions turns, seem to have drifted away somewhat from both common law and the statute, we will examine them again briefly.

At common law it seems the pleader in a slander suit was required to allege when and where, and might if necessary to the defense be required to aver to whom, the publication was made. This is yet the law in England. [Odgers on Libel & Slander, 625.] Touching this rule the above learned writer says: “In cases of slander he [the plaintiff] must give the date of each slander, the names of the persons to whom, and the places where, each slander was uttered. ’ ’

If such a bill of particulars could be required at common law in slander suits, or whatever the rule as regards definiteness and certainty in these behalves was at common law, it is the law yet in this State unless we have changed it by statute. But it is said that our statute (Sec. 1837, R. S. 1900) has changed the rule at common law requiring certainty of aliegation as to time and place of publication. [Atwinger v. Fellner, 46 Mo. 276; Johnson v. Bush, 186 Mo. App. 107.] Let ns see if this is correct. The applicable part of our statute reads thus: “In an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts for the purpose of shoiuing the application to the plaintiff of the defamatory matter . . . but it shall be sufficient to state generally that the same was published or spoTcen concerning the plaintiff,” etc. (Italics ours.) [Sec. 1837, supra.] The query which arises in construing this statute is: "Wherein and to what extrinsic facts does it apply and what facts does it obviate the necessity of alleging1? Manifestly, to such extrinsic facts as this term was technically used in a common-law declaration for slander, to designate, viz,.: Such extrinsic facts as serve to show the ‘ ‘ application to plaintiff of the defamatory matter,” and touching this purpose and this only, “it shall be sufficient (i. e., to show the application of the defamatory matter to plaintiff) to state generally that the same was published or spoken concerning the plaintiff.” [Newell, Slander & Libel, 728, 838; Dias v. Short, 16 How. Pr. (N. Y.) 322; Pike v. Van Wormer, 5 How. Pr. 171; Culver v. Van Anden, 4 Abb. Pr. 375] In the case of Pike v. Van Wormer, supra, discussing the effect of the New York statute on pleading in actions for slander and libel, which statute we have carried bodily into our Code as section 1837, supra, Willard, J., said:

“The Code merely dispensed with the allegation of extrinsic facts, showing the application of the words to the plaintiff, in order to obviate the difficulty which was supposed to have been occasioned by the decision of the Supreme Court in Miller v. Maxwell, 16 Wend. (N. Y.) 9. It does not dispense with the necessity of an averment or innuendo when they become essential to show the meaning of the words themselves. In these respects the rules of pleading remain unaltered.”

Persuasive toward the correctness of this view is the fact that at common law a declaration for slander ordinarily contained, what was designated in the books on pleading as, an “averment of extrinsic matters,” wherein it was set forth with much of sonorous phrase pending, or lately pending, matters in which plaintiff took part and likewise the part he took, which matters and acts were deemed to make clear wherein and why the slanderous words applied to him. [Newell on Slander & Libel, 838; Yates, Pleadings, 388.]

We think it is obviously a strained construction to interpret this statute as so far changing the common-law rule as to relieve plaintiff from the necessity of averring when publication was made, or from stating definitely where it was made. It is easy to see the non-necessity of the rule of definiteness and certainty as regards libel. Because it is difficult to imagine a case wherein the defense to a libel suit would be that no such writing existed, and cases are reasonably rare wherein the question of publication vel non, wouldl become an issue. There might be questions mooted in defense as to whether the matter was libelous, or, as to whether defendant had part in the publication, and rarely, but not ordinarily, as to the fact of publication. But touching defamatory words spoken, or alleged so to be, so crying a necessity to hold to the common law exists that it ought not to be lightly cast aside at the behest of a statute which, if it means what it has been said to mean, is so glaringly ambiguous. If the defense be that the words spoken were true, in short, justification, then obviously it makes no difference when, where or to whom these words were spoken, barring such objection as might arise from the Statute of Limitations. But if the defense .be as her-e that defendant did not speak the words charged, it is apparent that every rule of fairness demands that defendant be informed specifically if he desires the information for his defense, as to the time and place, at least, where the alleged defamatory words were spoken. Otherwise it is difficult to see how a defendant, being innocent of the publication, could defend himself adequately in the action, or protect himself against conspiracy and perjury. Any other view smacks of the ambuscade and of lying in wait, privileges which we have long prided ourselves upon having abdicated when we abandoned common-law pleading.

It is obviously unthinkable that plaintiff under all circumstances may merely aver “that to-wit: On or about one year from the date hereof, defendant at the city of St. Louis, wilfully, wantonly and maliciously spoke and published of and concerning the plaintiff,” etc., without averring definitely when or where, or to whom of the sis hundred and eighty-seven thousand inhabitants of that city the alleged defamatory words were spoken, and that he may, whatever the defense is, refuse on motion to that end, to make his petition more definite and certain. It is to be conceded of course that in practically every case of libel, from the very nature of the case, no necessity would exist for a so-called bill of particulars, and that in many actions for slander it would suffice to aver publication generally, as to persons and to aver time and place under a videlicet, but for the reasons stated it would not fairly or reasonably suffice, at least as against a motion to make more definite and certain, in a case of alleged slander wherein the defense is not guilty.

The case of Atwinger v. Fellner, supra, was correctly ruled upon the concrete facts up for judgment. While the petition under discussion in that case contained “no allegation that the words were uttered in the .presence of any one,” yet no attack was made upon that petition till after verdict. Clearly, a petition which merely averred the fact of publication generally, without descending into a bill of particulars, would not be fatally defective, or liable to successful assault after verdict, but would be cured by the Statute of Jeofails. [State ex inf. v. Arkansas Lumber Co., 260 Mo. l. c. 283; 31 Cyc. 761, and cases cited; Sec. 19, p. 671, G. S. 1865.] No other cases have been found in this State which deal with this matter of sufficiency of pleading, except the Atwinger and Johnson cases, supra. In other American jurisdictions the rule as to definiteness of allegation as to the time and place at which, and the person or persons to whom, the slander was published, is thus stated by Cyc.:

“It is generally held sufficient in an action for slander to allege that the words were spoken or uttered by defendant in the presence of some third person or persons and the names of such person or persons need not be given. So it has been held that an averment that defendant ‘published’ the defamatory matter is good, as the word ‘published’ imports that the words were spoken in the presence of some third person. The petition should allege with exactness the time when and the place where the publication was made, and it has been held that any indefiniteness in these respects will render the petition insufficient as against a demurrer.” [25 Cyc. 446.]

Touching the right of defendant, who may be otherwise wholly unable to prepare his adequate defense, to have the petition made more definite and certain, the rule in other jurisdictions is thus stated by Cyc.: “It it generally held that defendant is entitled to know definitely the time and place of the publication of the alleged slander or libel and the name of a party to whom publication was made, and if complaint fails to shows these particulars, a bill [of particulars] will be ordered.” [25 Cyc. 467.]

From these authorities and reasons we think it should be ruled (a) that the plaintiff in an action for slander (and in libel as well where need arise) on motion to make more definite and certain, may be required to set forth when and where and to whom the alleged defamatory words were published; (b) that since each publication of defamatory words constitutes a separate cause of action, every such publication must be separately pleaded in separate counts of the petition, and (c) that no recovery can be had for the publication of a slander which is not pleaded, but (d) other publications of defamatory words of similar import to those pleaded may be shown by the evidence for the purpose of showing express malice in augmentation of damages, either actual or punitive. Of course, plaintiff ought not in his proof to be held always to strict accuracy as to time, so long as the variance may not bring him foul of the Statute of Limitations, or mislead defendant to his hurt, or amount to a palpable fraud upon the court.

From these conclusions it results that instruction four given for defendant, while stating correct principles of law, did not go far enough when standing alone and without the aid of instruction eight, offered by plaintiff and erroneously refused by the court. Both of these instructions were proper if given together, but the learned trial court having refused the instruction requested by plaintiff which correctly set out the office and effect of evidence of other publications, should then have modified instructions four by an apt statement of the purpose for which the jury could consider other publications of defamatory statements of like or similar import, or else refused it. For in the last analysis the concrete result of giving this instruction under the circumstances and in the form as given was to let this testimony of other publications into the case and then at the end to remove it wholly from the jury’s Consideration; to tell them in effect, that they need not consider it for any purpose. Arguendo we may say (though we would not and do not now write such a reason into the law) that the jury being more or less subject to the suspicions and frailties of other humans, might, but for this instruction, have argued the probability of defendant’s having spoken the words complained of to the witness Manes from the fact that he had spoken them to so many other persons.

It follows that for the failure of the -trial court to give instruction eight, supra, this case must be reversed and remanded for a new trial in a manner not inconsistent with the views herein set down. Let this be done.

All concur. •


author: WILLIAMS, C.

text:
    GARRETT L. CARMODY, Administrator of Estate of JOHN L. CARMODY, Appellant, v. MARY A. CARMODY.
    Division Two,
    January 6, 1916.
    1. EVIDENCE: Circumstance. In a suit by an administrator against decedent’s wife to recover, bonds, which she claims as her own, testimony by an attorney that at a time certain decedent brought his wife to his office and stated the circumstance of a loss of bonds belonging to his wife and not in suit, is admissible as tending to show that at that time she owned and possessed bonds, and as a circumstance fpom which an inference may be drawn throwing some light upon the purpose for which both held a joint interest in the safety deposit box in which the bonds in suit were kept.
    2. ADMINISTRATION: Bonds In Widow’s Possession: Instruction: Where She Claims as Purchaser. In a suit by the administrator against decedent’s widow to recover bonds in her possession, which she claims to own as a purchaser, and not as a gift from her husband, it is error to refuse an instruction declaring that if decedent, in his lifetime, purchased and paid for the bonds and they were delivered into his possession at the time of the purchase, the finding must be for plaintiff.
    3. -: -: Answers to Interrogatories: As Pleadings and Evidence. In a suit by an administrator to recover bonds in the possession of decedent’s wife claimed by her as the owner, the written interrogatories propounded to her for answer and her written answers thereto are to be considered merely as pleadings in the case, and the statements contained in said answers cannot take the place of testimony, but testimony should be offered upon the trial as in any other case.
    4. -: -; -;--: Waiver. Nor does the filing of interrogatories in such a case constitute a waiver of the incompetency of the wife to testify to transactions between her and her deceased husband involving the cause of action and at issue.
    5. -: -: -: Instruction. In such a case an instruction declaring that the statements made in the answers to the interrogatories propounded by the administrator to the wife that are in her own favor are not competent as evidence, and do not tend to prove, nor can they be considered as tending to prove, that the wife owned or acquired by gift or purchase from her husband, or otherwise, any of the bonds, is a correct declaration of law, and being applicable to the facts should be given.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Reversed and remanded.

      Johnson, Rutledge S Lashly, Holland, Rutledge é Lashly and Rlevins S Jamison for appellant.
    (1) The evidence does not show that the bonds in issue in this suit were purchased with the money of Mary A. Carmody. Tygard v. Falor, 163 Mo. 234; Terry v. Glover, 235 Mo. 544. (2) It does not show a gift inter vivos between deceased and defendant. Keyl v. Westinghaus, 42 Mo. App.’ 57; Godard v. Conroy, 125 Mo. App. 174; Terry v. Glover, 235 Mo. 549. (3) Under the pleadings and the admitted facts, the finding and judgment should have been for the plaintiff. See authorities above. (4) The court erred in admitting testimony by Thomas K. Skinker, and in refusing to give declaration number 8 striking said testimony from the record. (5) The court erred in admitting the testimony of the defendant in her own behalf. Terry v. Glover, 235 Mo. 544; Tygard v. Falor, 163 Mo. 235. (6) The court erred in refusing to give declaration number 2. The interrogatories and answers merely constitute the pleadings in the case. They were in no sense evidence in favor of the defendant. Tygard v. Falor, 163 Mo. 242; In re Estate of Hoffman, 132 Mo. App. 63.

      Walter B. Douglas for respondent.
    (1) The issue to be tried in this case is substantially this: Were the bonds here in question, or any of them, the property of John U. Carmody prior to the time of his death? On this issue the administrator has the affirmative, and, therefore, the burden of proof. Tygard v. Falor, 163 Mo. 245. (2) The. evidence offered is insufficient to make out a prima-facie case in favor of the administrator. State v. Taylor, 134 Mo. 151; Gentry v. McReynolds, 12 Mo. 533; Coughlin v. Ryan, 43 Mo. 99; Welch v. Welch, 63 Mo. 57; McCoy v. Hyatt, 80 Mo. 130; Schooler v. Schooler, 18 Mo. App. 77; Abbott v. Trust Co., 149 Mo. App. 514; Fair v. Wynne, 155 Mo. App. 343; Hopper v. Hopper, 84 Mo. App. 120; Farwell v. Cramer, 38 Neb. 66; Gordon v. Eans, 97 Mo. 600; Jackson v. Jackson, 10 Mo. 121; Wheeler v. Wheeler, 43 Conn. 507.
   WILLIAMS, C.

This is a proceeding originally instituted in the probate court of the city of St. Louis, under the provisions of section 70 et seq., Revised Statutes 1909, whereby the administrator of the estate of John L. Carmody, deceased, seeks to recover from Mary A. Carmody certain assets which it is alleged that she is wrongfully withholding from the estate. The specific property in dispute consists of eleven one-thousand-dollar bonds of the State of Coahuila de Zaragoza, Mexico; two municipal bonds of Buchanan, Georgia, for three hundred dollars each. Mary A. Carmody is the widow of John L. Carmody. Pursuant to the citation, she appeared in the probate court and denied the allegations of the affidavit, whereupon interrogatories were filed and she answered the same under oath. Trial was had in the probate court, resulting in favor of Mary A. Carmody, and the administrator took an appeal to the circuit court of the city of St. Louis, and upon trial in the circuit court before the judge, sitting as a jury, judgment was entered in favor of the defendant and the administrator duly perfected an appeal to this court.

Answers were made to forty interrogatories and are quite lengthy. Sufficiently for the purposes here, we will state, in narrative form, the answers made to the interrogatories, as follows:
“My name is Mary A. Carmody and I am the widow of John L. Carmody.- We were married in New York in 1867 and continued to reside together until the day of his death, July 30,1908. At the time of our marriage, I had something less than one hundred dollars in money and my husband had three or four hundred dollars in money. The first year after I was married, my father, in Ireland, sent me seventy dollars .and, in 1869, my husband gave me a Christmas present of one hundred dollars. The first year or so after our marriage, my husband was engaged in the hardware business in Cincinnati; then he ran a store for railroad contractors for four years; then he was a street car conductor for four years; then he ran. a hotel for about a year; then he worked as a salesman in a post-trader’s store at Port Sill, Indian Territory, for three years; then we lived on a ranch in Kansas for three years, raising stock; then for abont seven years he ran a post-trader’s store at Jefferson Barracks for Major McVean. He worked for about nine months for Garrett ¡L. Carmody in a grocery store and also kept books for nine months for T. W.. Scott. During all this time, the salary which he received was from thirty dollars a month, being the lowest salary received, to one hundred dollars a month, being the highest salary received. During seven years of our married life, I kept boarding house and from that source saved about eleven hundred dollars. "What I saved was invested and the interest therefrom was also invested. For about nineteen years I collected rents for my husband, which amounted to about eighty or a hundred dollars a month, and I received three per cent for collecting the same.
“In 1868, my husband bought a bond at Covington for one hundred dollars, and after keeping it a few m.onths sold it. He bought some bonds in 1876 at Fort Sill, but sold them and used the money to buy the Kansas ranch. In June, 1908, my husband bought two five-hundred-dollar bonds of the Knights of Columbus for ‘something over one thousand dollars.’ He bought the Knights of Columbus bonds from the Mercantile Trust Company. My husband did not own any bonds at the time of his death. He gave me the Knights of Columbus bonds. The Knights of Columbus bonds are now in possession of the administrator, but they belong to me. I have acquired bonds during the period of my marriage and have owned bonds for twenty-four years or more. Twenty-four years ago, I owned bonds amounting to three thousand dollars or thirty-seven hundred dollars. The proceeds of those bonds and the interest was reinvested until I now have eleven thousand dollars in bonds. For about fifteen years my husband had a safety deposit box at the St. Louis Safe Deposit Company and later at the Mercantile Trust Company. I had access to the box, prior to.my husband’s death. At the suggestion of my husband, I took ten thousand dollars in bonds out of the box, in March, 1908, and carried them home and put them in the desk. He said that I had better take them out to avoid any trouble about getting at the box in case of his death. They are now in my possession. It is not true that the bonds were purchased by my deceased husband with his own means and funds. The bonds were bought with my means. My husband may have added at times some small amount of his own money to make up an even sum, but he never gave me any statement of how much and I never knew. In ■1890 I lost some bonds, three thousand dollars or three thousand seven hundred dollars worth of bonds, and had to sue for the money. My husband used to manage my business for me. He would sell, trade and reinvest so it is impossible for me to recollect what I had in any particular year.' At the time of my husband’s death, I, individually, owned eleven Mexican bonds for one thousand dollars each, two Knights of Columbus bonds for five hundred dollars each, and two Georgia bonds for three hundred dollars each. I never directly purchased any of these bonds. My husband always attended to such matters for me. The following is a list of the bonds in my possession, under my control, at the time of my husband’s death:
“Bonds of the State of Coahuila de Zaragoza, Mexico, dated April 1, 1900, payable April 1, 1940, interest 6 per cent, numbers 12, 146, 147, 206, 378, 379, 566, 639, 640, 641, 642, each for one thousand dollars; two bonds of the town of Buchanan, Georgia, for three hundred dollars each; two bonds of the Knights of Columbus for five hundred dollars each. The eleven Mexican bonds are now in my possession. The administrator has possession of the Knights of Columbus bonds.”

The evidence upon the part of the plaintiff tended to establish the following facts:

John W. Donaldson, president of the John W. Donaldson Bond and Stock Company, testified that he-sold John L. Carmody the following bonds: One lot of bonds of Mt. Pl-easant Township, Bates county, Missouri ; two bonds of Buchanan, Georgia, for three hundred dollars each, and one one-thousand-dollar bond, being bond No. 12, of the State of Coahuila, Mexico. That these-bonds were paid for by Mr. Carmody, and were delivered to him at the time of his purchase, and that they sold the Mexican bond at a little above par. That the Mt. Pleasant Township bonds were after-wards lost, and witness introduced Mr. Carmody to Mr. Skinker and Mr. Skinker brought suit against the county to recover the money.

Mr. William H. Young testified that in 1905 and 1906 he was connected with the Noel-Young Stock .Company and that his company sold the following bonds to John L. Carmody, to-wit: On December 28, 1905, bond No. 566 of the State of Coahuila, Mexico, the par value being one thousand dollars, bearing six per cent interest. It was sold above par, the exact price being 109. On June 18, 1906, two one-thousand-dollar bonds of the same kind, being numbers 146 and 147, were sold to Mr. Carmody. They were sold at 110. On May, 1908, a one-thousand-dollar bond of the same kind, being No. 206. It was sold at 107, plus interest. These four bonds were paid for by John L. Carmody arid were delivered to him and a bill of sale of the same was made to John L. Carmody.

Walter A. Wilkinson, cashier of the bond department of the Mercantile Trust Company, testified that his company sold to Mr. Carmody, on April 26, 1905, one one-thousand-dollar Mexican-government four-percent bond, at 94. The number of the bond was 7749, and that this bond was, on May 23, 1905, sent to New York to be exchanged for a permanent bond, No. 34374. Nine hundred and fifty-six dollars and eleven cents was paid for the bond. This same company, on May 6, 1908, also sold one thousand dollars worth of the Knights of Columbus building bonds to John L. Carmody; the two bonds were for five hundred dollars each and were numbers 82 and 84.

Joseph J. Reynolds, assistant manager of the Mercantile Trust Company safe deposit vaults, testified that from February 9, 1906, until September 30, .1908, safety deposit box No. 11339 was rented jointly m the name of John L. Carmody and Mrs. Mary A. Carmody. On September 30, 1908, at the request of Mrs. Carmody, John L. Carmody’s name was erased from the records (this was after the death of John L. Carmody). This witness also testified that his records show that Mary A. Carmody had access to this box on March 23, 1908, and again on August 3, 1908. By access, the witness said he meant that “the person had visited the box.”

The evidence upon the part of the defendant tended to establish the following facts:

Thomas K. Skinker testified-that, in 1890 or11891, John L. Carmody brought Mrs. Mary A. Carmody to his office and stated the circumstances of the loss of some bonds which he said belonged to Mrs. Carmody, but which had been lost. The bonds were the Mt. OP'leasant Township bonds of Bates County. Suit was brought in the name of Mrs. Carmody and about $2500 was recovered for her. On cross-examination, the witness was interrogated about the depositions of John L. Carmody and Mrs. Carmody taken in the suit to recover on the lost bonds, in which Mr. Carmody testified that he made an outright gift of the bonds to Mrs. Carmody, and that if he needed the money to use in any way, she would give the bonds back to him; and that Mrs. Carmody testified that when her husband" first bought the bonds, “it was considered that they were mine.”

Defendant offered in evidence the deposition of Father J. J. Godfrey. This witness testified that he received a letter from John ¡L. Carmody inquiring if he should pay taxes on some money or property which the writer had laid aside for his wife. The letter was written about four years prior to the death of Mr. Carmody.

Walter B. Douglas testified that the plaintiff, administrator, upon the hearing of this cause in the probate court, testified that John L. Carmody, his brother, at one time bought for him a one-thousand-dollar four-per-cent Mexican bond, and that he gave his brother money to pay for the bond and that his brother kept the bond. Later he desired to sell the bond and his brother paid 'him back the money invested in the bond.

It is contended that the court erred in admitting the testimony of Thomas K. Skinker. In this connection, it is urged that the bonds, concerning’ which Mr. Skinker testified, are not the ones here involved, and hence his testimony is not material to the issues in the' present suit. It is true that the bonds mentioned in the witness’s testimony are not the ones now in issue, but we think the witness’s testimony was admissible. It tended to show that, as far back as 1890, Mrs. Carmody owned and possessed bonds valued at $2500, or more, and we think it a circumstance from which an inference might properly arise throwing some light upon the purpose for which she held a joint interest in the safety deposit box which contained the present bonds. It is, of course, but a slight circumstance, but we think it was properly admitted in evidence.

It is contended that the court erred in refusing to give appellant’s declaration of law numbered 1. The substantial portion of this declaration was, as follows:

‘ ‘ The court declares the law to be that if the court, sitting as a jury, shall find from the evidence that the said John L. Carmody, deceased, in his life-^-mei purchased all or any of the bonds from Noel-Young Bond Company or the Donaldson Bond & Stock Company or the Mercantile Trust Company and paid for the same and that said bonds were delivered into his possession at the time when he purchased them, then the finding will be for the plaintiff, and the defendant is guilty of wrongfully withholding from the estate of her deceased husband all of the said bonds which the court may find from the evidence were so purchased and paid for by the defendant’s deceased husband.”

We are of the opinion that this declaration should have been given. There was no issue in this case that Mrs. Carmody was the owner of the bonds in dispute, by reason of a gift from her husband, but her defense, as we gather it from the pleadings, was that she purchased and paid for the bonds when originally purchased, and that she was, therefore, the owner, ás original purchaser. - The theory of the plaintiff was that these bonds, or at least some of them, were the property of the estate because John L. Carmody had purchased them and paid for them.

,111. It is further contended that the court erred in refusing appellant’s declaration of law numbered 2. The main portion of this declaration was as follows:

“The court declares the law to be that the statements made in the answers filed by the defendant to the interrogatories propounded by the plaintiff that are in her own favor are x not competent as evidence, nor do they tend to prove, nor can they be considered by the court as tending to prove, that the defendant owned or acquired by gift or purchased from her husband, or otherwise, any of the bonds, the title to which is in controversy in this action. And the court, sitting as a jury, will not consider as evidence answers made by defendant in her own interest, but will exclude from its consideration such answers,” etc.

We are of the opinion that the foregoing was a correct declaration of law, applicable to the case and should have been given.

In the case of Tygard v. Palor, 163 Mo. 234, it was held that, in proceedings of this kind, the issues to be tried are settled and definitely fixed by the interrogatories and the answers made thereto. That being true, the interrogatories and answers are to be considered merely as pleadings in the case, and the statements contained in said.answers (excepting, of course, admissions or confessions therein contained against the interest of the person answering) could not take the place of testimony, but the testimony should be offered upon the trial of the ease as in any other trial.

In the present case, Mrs. Carmody would not, of course, be a competent witness to testify to transactions between herself and her deceased husband, involving the cause of action or issue now on trial. [Sec. 6354, R. S. 1909.] And it was held in Tygard v. Palor, supra, that the filing of the interrogatories in a case of this kind did not act as a waiver of the incompetency as a witness of the person answering the interrogatories. The judgment is reversed and the cause remanded.

Roy, G., concurs.

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

All the judges concur.


author: ROY, C.

text:
    GROOME WHITTELSEY et al., Appellants, v. JAMES CONNIFF et al.
    Division Two,
    January 6, 1916.
    1. MINOR: Sale of Land: By Curator Appointed Without Notice: Constitutional Right. When the Legislature as parens patriae takes from a minor the power to dispose of his property, and, through the instrumentality of the probate court and a curator, sells that property for his education and support, it does not deny to him the equal protection of the laws, but gives him the protection of laws especially designed for his protection; it does not take from him his property, but uses it for his benefit. And the sale of a non-resident minor’s land by a curator who was appointed by the probate court without notice to the minor of the application for such appointment, if otherwise done in harmony with the statute, which in 1879 did not require such notice, did not violate the provision of the Federal Constitution guaranteeing to him- the equal protection of the laws, or the provision of the State Constitution declaring his property shall not be taken without due process of law.
    2. NON-RESIDENT MINOR: Over Fourteen Years: Choosing Curator, The General Statutes of 1865 did not give to a nonresident minor having real estate in this State, either under or over fourteen years of age, the right to choose his curator, or to have notice of the application for the appointment of a curator.
    3. -: Curator: Interloper. A person who has been appointed curator of the estate of a non-resident minor at the suggestion and upon the application of another who. holds a power of attorney from the minor’s mother and adult sister for the sale of their interests in the same lands, and who sold those interests to the same persons who purchased from the curator, cannot properly be characterized as an interloper.
    4. -: Sale of Lands: Notice of Order of Sale. The General Statutes of 1865 did not require that notice be given the minor of an application by the curator for an order of court to sell the lands of the minor.
    5. CURATOR: Resignation: No Formal Discharge: Sale by Subsequent Appointee. Where the resignation of a duly appointed curator has been accepted by the probate court by an order entered of record, the fact that he was not formally discharged will not affect a sale of the minor’s land by a subsequent curator duly appointed.
    Appeal from Jefferson Circuit Court. — Hon. E. M. Dearing, Judge.
    Affirmed.

      W. D. Isenberg and Crews S Cantwell for appellants.
    (1) The English and American authorities are numberless that the power of courts to divest an in-, fant of his lands, whether the court deems it to his advantage or not, does not exist, in. the absence of a statute. The decisions in Missouri so uniformly hold that it is unnecessary to cite authorities of other States. Heady v. Crouse, 203 Mo. 100; Young v. Downley, 150 Mo. 317; Capen v. Garrison, 193 Mo. 335. (2) This is particularly true in the case of a nonresident infant who owns a remainder in lands in this State. The State of Missouri has no power to direct his education, or to supervise his care and maintenance. If his property in this State be needed for his education and support, the courts of the State having-power over the person of the infant should first be resorted to. This is the policy of the statute law. The enumeration in the statute of certain purposes for and conditions under which such sales of lands of infants may be made excludes all other purposes and conditions, and means that the land cannot be sold except Within the terms of the statute. Capen v. Garrison, 193 Mo. 335; Blackburn v. Bolán, 88 Mo. 80. It is only when the statute expressly provides that lands of non-resident infants may come under the jurisdiction of the probate court that said jurisdiction can exist. "When such conditions are complied with, then all of the other requirements as to notice which are applicable to the estate of a resident minor and for his protection, should apply, with greater reason, to the estate of the non-resident infant. Notice of some sort, at some time or stage, of the proceedings by which the property of an infant may he divested, is absolutely essential. It may, be that a child of tender years is required to take notice of all that his curator may do after he knows who his curator is, but no case has ever yet held that any human being is bound by the acts of another of whose very existence he has had neither knowledge nor notice of any kind. Such a proceeding would violate the provisions of the State Constitution providing for due process of law, and would violate the provision of the Federal Constitution guaranteeing the equal protection of the laws. Jones v. Gore, 142 Mo. 45; Roth v. Gilbert, 123 Mo. 29; Clark v. Mitchell, 64 Mo. 564; Lemon v. Buchanan Board, 108 Mo. 241. (3) There was no jurisdiction to appoint the curator; there was no’ jurisdiction to order the sale or to confirm it. Cases above, and Carden v. Culberson, 100 Mo. 269.

      James Booth for respondent, Owen McCourt.
    (1) The appointment of O’Rourke as curator of the estates of the non-resident minors was expressly authorized by the statute then in force. Sec. 6, chap. 12, Wagner’s Stat. 1872; Sec. 414, R. S. 1909. (2) The appointment was regular and fair on the face of the record, reciting every jurisdictional fact.' Sec. 6, chap. 12, Wagner’s Stat. 1872. (3) Under section 12, of said, chapter, no notice was required of the application for the appointment of O’Rourke. Wallace v. Tinney, 145 Iowa, 478; Clark v. Cordis, 4 Allen, 466. (4) The application for the order to sell and the order sustaining it as well as the order of approval of sale, wrere all regular and good on the face of the record. Sec. 28, chap. 66, Wagner’s Stat. 1872. (5) Statutes authorizing the appointment of a curator of the estate of a non-resident minor who owns property within the jurisdiction of the court, are by no means unusual and are universally upheld by the courts of the State where in force. Wallace v. Tinney, 145 Iowa, 466; Woerner’s Am. Law of Guardianship, sec. 28, pp. 87, 88; Tiffany’s Persons and Domestic Relations, sec. 306, p. 158; Land Co. v. Kurtz, 45 Minn. 380; Davis v. Hudson, 29 Minn. 27. (6) The actions of the probate court in appointing O’Rourke curator and making its order of sale, together with its order approving that sale being fair and regular on the face of the record, is not the subject of collateral attack in this action. Hope v. Blair, 105 Mo. 93; Carr v. Spannagel, 4 Mo. App. 288; Frye v. Kimball, 16 Mo. 21; Overton v. Johnson, 17 Mo. 442; Buggies v. Webster, 55 Mo. 246; Cox v. Boyce, 152 Mo. 582;- Johnson v. Beasley, 55 Mo. 256; Bowden v. Brown, 91 Mo. 429; Noland v. Barrett, 122 Mo. 181; Smith v. Black, 231 Mo. 681; Bobbins v. Boulware, 190 Mo. 33; Wilkerson v. Allen, 67 Mo. 502. (7) No notice of the curator’s application for order of sale was required to give the court jurisdiction. Anoell v. Bridge Co., 223 Mo. 209. (8)„ The record showed that the proceeds of the sale were used for the education of the minors, and they are now estopped.- They cannot in the same breath both accept and reject. Fisher v. Siekman, 125 Mo. Í65. (9) The probate court was not required to expressly discharge Spencer before appointing O’Bourke. Spencer having paid over according to the court’s order all the assets in his hands and his resignation having been accepted, coupled with the fact that the court afterwards appointed O’Bourke, shows by necessary implication that Spencer was discharged. Pattee v. Thomas, 58 Mo. .163; Henry v. McKerlie, 78 Mo. 416. (10) The law views with disfavor titles of the ancient character of that claimed by appellants. Hubbard v. Slavens, 218 Mo. 615.
   ROY, C.

This is a suit under section 2535 of our Revised Statutes to quiet title to lot 8, containing 146 acres, and lot 9, containing 90 acres, all in subdivision 10 of H. S. Survey 1897, except ninety-five acres described in the petition, all in Jefferson county.

Plaintiffs are the children of Charles C. Whittelsey, a lawyer of St. Louis, who died in March, 1875, the owner of all of said lots 8 and 9, and also the owner of lands in the city of St. Louis, and in St. Louis county outside of said city. His will was duly admitted to probate, by which he devised all his property to his wife, Anna G\, for life, with remainder to his heirs. He left surviving him six children, who were also the children of said Anna G\, and were all minors.

In July, 1875, while the widow and children were residing in St. Louis, Richard H. Spencer was duly appointed curator of said minors. The only personal assets he ever received of said minors was $324.52 each, on a policy of insurance on their father’s life.

About June 27, 1878, Spencer tendered to the court his resignation as such curator, having duly published a notice of his intention to do so, and his resignation was by entry of record accepted by the court. There was no formal order of his discharge as such. His statements and vouchers show that he paid all the money in his hands to the mother of the minors for their education and support, all of which payments were approved by the court. Immediately after the appointment of Spencer as such curator, the mother and children removed their residence to Elkton, Maryland, where they resided until 1881, when they moved back to St. Louis. Lillian and Lucy died in 1886. The mother and Edith died in 1910.

On October 17, 1878, the widow executed a power of attorney to Phil Y. Taylor of St. Louis to sell her interest in all of said lands; and on January 18, 1879, Alice G. Whittelsey, one of the children, who had then become of age, executed a similar power of attorney to Taylor.

On June 18, 1879, said Taylor filed in the probate court of St. Louis an application for the appointment of John F. 0'’Rourke as curator for the five children of Whittelsey who were still minors.- That application stated that said minors Lucy and Iva were over fourteen years of age, and that Edith, Lillian and Groome were under fourteen years of age; that they resided out of this State and owned real estate in the City of St. Louis and in the counties of St. Louis and Jefferson. O’Rourke was thereupon appointed such curator and gave bond in $1500 in the estate of each of said minors.

On June 24, 1879, the curator filed a petition for an order to sell said lands for the education and support of said minors, stating therein that the personal estate of said minors had been, exhausted in their education and support. The court ordered that the land be sold at private sale. On October 4, 1879, that order was renewed. There is no showing on the record of the probate court or otherwise that there was ever published or served on said minors any notice either of the application for the appointment of such curator, or of the petition for the order of sale of the land. Lot 8 was appraised at seventy-five cents an acre and Lot 9 at twenty-five cents an acre, in all $132. That appraisement was of the full value and not merely of the minors’ interest therein. The minors’ interests in those lots were sold under that order, and the sale was reported to, and approved by the court on January 10, 1880. That report contained the following :

“And Mrs. Ellen McNamee became tbe purchaser of so much of the land above described as being in the county of Jefferson, having made the highest offer that could be obtained for the same at the price of seventy-six 70/100 dollars, the same being over the appraised value of said minor’s interest in said parcels of land, the tenant for life being forty-six years of age, and the'appraised value of the whole estate in said lands being one hundred and thirty-two dollars.”

On October 20, 1879, Phil V. Taylor under his powers of attorney executed two deeds to said Ellen J. McNamee, by one of which he conveyed the interest of the widow, Anna Gr. Whittelsey, in the Jefferson county land, in consideration of $97.80, and by the other he conveyed the interest of Alice Gr. Whittelsey for the consideration of $25.35. ■

On August 19, 1880, Ellen J. McNamee conveyed the 236 acres to defendant McCourt for a consideration of $600'. On June 17,1886, McCourt sold to James E. Shorb ninety-five acres of the land for a consideration of $125, it being the part excepted in the petition. On November 1, 1888, McCourt conveyed to defendant Conniff forty acres of the land in controversy for a consideration of $125. There is very little oral evidence as to the character of the land; but it does clearly appear that it lies on the Merimac river and overflows; that at the time of the curator’s sale it was in woods and unfenced, and that very little of it was cleared at the time of the trial.

Appellants say that the sale of a minor’s land by a curator who was appointed without any notice to the minor of the application for such appointment is a violation of constituti°nal law in two respects: First, that it violates the Federal Constitution by denying to him the equal protection of the laws; second, that it violates the State Constitution by taking Ms property without due process of law. There is one answer to be made to both those propositions: When the Legislature as parens patriae takes from a minor the power to dispose of his property, and, through the instrumentality of the probate court and a curator, sells that property for the purposes of his education and support, it does not deny to him the equal protection of the laws, but gives him the benefit of laws especially designed for his protection; it does not take from him his property, but used it for his benefit.

In 1820 Chief Justice Parker in Rice v. Parkman, 16 Mass. 326, said:

“No one imagines that, under this general authority, the Legislature could deprive a citizen of his estate, or impair any valuable contract in which he might be interested. But there seems to be no reason to doubt that, upon his application, or the application of those who properly represent him, if disabled from acting himself, a beneficial change of his estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that authority. It is, in fact, protecting him in his property, which the Legislature is bound to do; and enabling him to derive subsistence, comfort, and education from property, which might otherwise be wholly useless during that period of life, when it might be most beneficially employed.
“If this be not true, then the general laws, under which so many estates of minors, persons non compos mentis and others, have been sold and converted into money, are unauthorized by the Constitution, and void. For the courts derive their authority from the Legislature, and it not being of a judicial nature, if the Legislature had it not, they could not communicate it to any other body. Thus, if there were no power to relieve those from actual distress, who had unproductive property, and were disabled from conveying it themselves, it would seem that one of the most essential objects of government, that of providing for the welfare of the citizens, would be lost.”

In Cochran v. Van Surlay, 20 Wend. (N. Y.) 365, the court said:

“But, as I have frequently had occasion to observe, an act of the Legislature which would have the effect to divest an individual of his property and transfer it to others for their own benefit, without compensation, or where there was no reason to suppose the person whose property was thus taken would be benefitted thereby, and contrary to the settled principles of law, would be void, as being against the spirit of our State Constitution, and not within the powers delegated to the Legislature by the people of this State. It is clearly, however, within the powers of the Legislature, as parens patriae, to prescribe such rules and regulations as it may deem proper for th.e superintendence, disposition and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs.”

Cooley’s Cons. Lim. (7 Ed.), pages 141 and 144, refers with approval to both those cases.

In Stewart v. Griffith, 33 Mo. l. c. 23, this court said:

“The view which we have taken of the subject is expressly based upon the idea that the act is question directs only the management of the property of the infants, changing its form and directing its use for their own benefit. Had the act undertaken to appropriate their property to the use of any other person it would have been void, because ‘retrospective in its operation’ by destroying rights previously vested by law. ’ ’

Nothing was expressly said in any of those cases on the subject of notice to the minor of the application for the appointment'of the curator.

The following authorities held that no such notice is necessary unless the statute requires it: 21 Cyc. 29; Kurtz v. Railroad, 48 Minn. 339; Kurtz v. Land Co., 52 Minn. 140; Shroyer v. Richmond, 16 Ohio St. 455; Mahan v. Steele, 109 Ky. 31; Packard v. Ulrich, 106 Md. 246; Wallace v. Tinney, 145 Iowa, 478. In the latter case it was said:

“But we do not think that either the statute or any rule of constitutional law requires the giving of notice of an application for the appointment of a guardian of the property of a non-resident. Surely our .statute does not require any notice, and, if it be required, it must be in virtue of some general rule of law or constitutional requirement. Doubtless no guardian may be appointed for the person of another without notice, and this is what the cases for appellant seem to hold. Some of them perhaps go so far as to hold that notice must be given if the appointment is to he of a guardian for the property. But we are constrained to take a different view.”

We observe that it is said in that case that some of the cases perhaps go so far as to hold that notice is necessary. A diligent search has failed to discover any case so holding, except those cases where the statute so required.

Those proceedings in the St. Louis Probate Court were had before Judge Woerner who in his American Law of .Administration, page 88, says that no notice to a minor is necessary unless called for by the statute.

Prior to our Constitution of 1865 the Legislature at every session passed numerous special bills for the sale of minor’s lands. New of them required any notice of any kind to the ward. Many of them failed even to require a bond to secure the interests of the minor. In Gannett v. Leonard, 47 Mo. 205, it was held that such an act which did not require a bond was improvident legislation, but that it was not void. It further said:

“The power- must be executed according to the statute; but the statute furnishes the rule by which we must judge of the legality of the transaction; and the dishonesty or subsequent misfortunes of the trustee, from which his beneficiaries suffer, should not be visited upon innocent purchasers when the statute has been followed.”

In Garth v. Arnold, 53 C. C. A. 200, Judge Thayer said:

‘ ‘ Concerning this question it is only necessary to say that it may be conceded to be well settled in the State of Missouri that, prior to the adoption of its Constitution of 1865, it was competent for the General Assembly, acting as parens patriae, to authorize by special laws the sale of lands belonging to minors and persons non compos mentis. The power in question had been repeatedly exercised and upheld. Indeed, the doctrine was so well established by local decisions, and so many titles had been acquired on the faith thereof, as to constitute it a rule of property. [Stewart v. Griffith, 33 Mo. 13, 82 Am. Dec. 148; Gannett v. Leonard, 47 Mo. 205; Shipp v. Klinger, 54 Mo. 238; Cargile v. Fernald, 63 Mo. 304; dusky v. Burns, 120 Mo. 567.] In one of these cases (Shipp v. Klinger) the Supreme Court of the State declined to go into the question of the right of the Legislature to exercise such a power, or to consider it as open for further discussion. ’ ’

The Constitution of 1865 provided that the Legislature should not by special law authorize the sale of a minor’s land, but did not limit its power to provide for such sale by general law.

It is thus seen that when the statute is complied with the sale is valid.

The probate proceeding’s now under examination took place under the General Statutes of 1865. Section 3 of chapter 116 thereof provides that the court ‘ ‘ shall appoint g’uardians to such minors under the age of fourteen years, and admit those over that age to choose guardians for themselves, subject to the approval of the court.” Section 11 makes a similar provision for the appointment of a curator different from the guardian. Section 12 provides for the appointment of curators for non-resident minors, without any provision for a choice by the minor. Section 13 provides that a minor having a guardian or curator appointed by the court, may, upon attaining the age of fourteen years, choose another guardian or curator Defore the court in the county of his residence.

We think it clear that there is no choice of a curator given by that chapter to a non-resident minor. It may be, and probably is the case, that the statute giving the right of choice to a resident minor over fourteen years of age impliedly requires that he shall have notice in order that he may make such choice. We are not now deciding that point, but we do hold that in that chapter there is no provision that a nonresident minor, either under or over the age of fourteen years, shall have such choice or that he shall have any notice of the application for the appointment of his curator.

Appellants in their brief characterize O’Rourke as an “interloper.” In that connection we have noticed that he was appointed at the suggestion of Phil Y. Taylor, who was then the attorney in fact of the mother and adult sister for the sale of their interest in the same land, and who sold those interests to the same person who purchased from the curator, and at prices in harmony with the consideration paid the curator. The interests of the minors were as well cared 'for as were those of the adrtlts acting in their own right.

Appellants say that the sale is void because no notice was given of the application for an order to sell the land. They cite section 29 of chapter 116 of the General Statutes of 1865. We will not quote that section. It says nothing about how the order of sale shall be procured, but provides only that the sale shall be advertised and conducted as in cas-e of sales made by executors and administrators for the payment of debts.

In Pattee v. Thomas, 58 Mo. 163, and in Ancell v. Bridge Co., 223 Mo. 209, it was held that no such notice was necessary because the curator represents the ward, and that the latter was in court through such curator.

The fact that no express formal order of discharge of Spencer as curator was ever made does not render void the subsequent appointment of 0’’Rourke. It is not necessary for us to hold that the acceptance of his resignation was, for all purposes, equivalent to a discharge.

In Cox v. Boyce, 152 Mo. 576, a curator was appointed in Lincoln. County, the place of the minor’s residence. Subsequently both curator and ward removed to Howell County where the same curator was again appointed as such by the probate court of that county, no discharge or resignation of the curator having ever been made or entered in Lincoln County. There was a sale of land of the ward situate in Lincoln County under proceedings in the probate court of Howell County. It was contended that those proceedings were coram non judice and void because of the pre-existing cnratorship. It was held that such original curatorship might have been sufficient cause in a direct proceeding to rescind the appointment in Iiowell County, but that such fact could not be shown in a collateral proceeding to annul the judgment of a court of competent jurisdiction. O’Rourke was a duly appointed curator and the sale made by him, valid in all other respects, cannot be thus collaterally assailed. The judgment is affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, 0., is adopted as the. opinion of the court;

Paris, P. J., and Walker, J., concur; Bevelle, J., not sitting.