source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    VINCENT KERENS, Appellant, v. ST. LOUIS UNION TRUST COMPANY et al.
    In Banc,
    July 12, 1920.
    1. WILL: Construction: Oral Testimony. If the language of a will is susceptible of two constructions, evidence of testator’s feeling towards a legatee may be admitted which will enable the court to put itself, so far as may be, in the testator’s place, that the words used may be read in the light of his environment at the time the will was executed. By the admission of such evidence" . no violence is done to the rule that a testator’s intentions are to be ascertained from the will itself.
    2. -: -: -: Spendthrift Trust: Condition Under Which Created: Precedent or Subsequent. By his will the testator devised and bequeathed one-third of the residue of his property to a trustee with power to handle and control the same and with specific directions to the trustee to turn over to a son a designated portion of the income during his lifetime, with the condition added that “if, at any time during the lifetime of my said son, he shall of his own free will and desire have passed five consecutive years of continued sobriety and good behavior and shall establish such fact to the satisfaction of said trustee, then the latter, namely, said trustee, shall declare said trust to be at an end and thereafter convey, transfer and pay over to my said son all the trust property and estate then held or possessed by it as such trustee, and such trust shall thereupon terminate.” Held, that extrinsic evidence showing that the will was made after repeated fruitless efforts by the testator to reclaim said son from his weakness for intoxicating drink, that the demoralizing effect of drunkenness had persisted during the son’s young manhood and that he was still less than forty years of age at the time of testator’s death, is competent for the purpose of aiding the court to determine whether the condition upon which the trust was created was precedent or subsequent; and where the will further gave the trustee power to sell and reinvest, mortgage or pledge, or to anticipate the income or any installment to be paid the son, and declared that the son should, have no power to dispose of any of the property and that neither the principal nor income should be liable for his debts, present or future, and the trustee’s title was to be divested only upon the son’s reformation or death, the compliance of the son was a condition precedent to the establishment of his right to the trust property. The son took no estate, but a mere interest in the income, and his interest therein was in the nature of a gift or donation.
    3. TRUST ESTATE: Power of Corporation: Devisee. Under the statutes a trust company may hold devised property in trust, execute such trust in conformity to the declared intentions of the trustor or testator, act as executor and trustee, be granted letters testamentary, and generally, act as trustee or in any other fiduciary capacity in the manner provided by law for the appointment of an individual to such office.
    4. SPENDTHRIFT TRUST: Power of Corporation to Terminate. Since the law has clothed a trust company with power to exercise the functions of a trustee, including the possession, care, custody and disposition of devised property, it is possessed of the consequent power, within the terms of the will, to determine whether the prescribed condition upon which a spendthrift trust is to terminate has been performed.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Affirmed.

      Boyle & Priest and Frank Y. Gladney for appellant; Stanchfield & Levy of counsel.
    (1) The court will resolve every doubt against the construction of the will contended for by the trust company and the remaindermen, for the trust company has completely identified its interest with the conflicting and partisan interest of the remaindermen, and is seeking a construction that will favor the remaindermen’s interest, identified with its own. This is proved by the fact that the same counsel represent both the trust company and the remaindermen. Smith v. Jordan, 77 Conn. 473; Gordon v. Green, 113 Mass. 260; Bryant v. ■ McIntosh, 3 Cal. App. 95; Marcom v. Wyatt, 117 N. C. 129; Arrington y. Arrington, 116 N. C. 170; Murray v. Lizotte, 31 R. I. 527. (2) Where indefiniteness and uncertainties. appear on the very face of the will, the rule is absolute, that oral evidence cannot be availed of to remove or explain it away. Goode v. Goode, 22 Mo. 524; Davis v. Davis, 8 Mo. 56; Gregory v. Cowgill, 19 Mo. 415; Bradley v. Bradley, 24 Mo. 315; Nichols v. Boswell, 103 Mo. 157; Mersman v. Mersman, 136 Mo. 256; Meiners v. Meiners, 179 Mo. 625; Robards v. Brown, J 67 Mo. 457; King v. Ackerman, 67 U. S. 418; Chafer v. Carter, 238 U. S. 584. (3) The interposition of a trust and a trustee does not change the rule of or postpone the vesting of the interest. Cornwell v. Orton, 126 Mo. 365-6; Patrick v. Blair, 119 Mo. 113-4; Simmons v. Cabanne, 177 Mo. 352; Deacon v. Trust Co., 271 Mo. 695; Walter v. Dickman, 202 S. W. 538; Croxall v. Sherrerd, 5 Wall. 281; 1'Perry on Trusts (6 Ed.), sec. 357. (4) The devise is to be construed first as if after the name of the beneficiary there followed the words “and his heirs and assigns.’’ R. S. 1909, sec. 2870; Roth v. Rauschenbusch, 173 Mo. 588. (5) The law favors the heir and he cannot be disinherited upon conjecture. Wright v. Denn, 10 Wheat, 228; McCaffery v. Manogue, 196 U. S., 569. (6) “Where an estate is given in one part of an instrument in clear and decisive terms, such estate cannot be taken away, or cut down by raising a doubt upon the extent or meaning, or application of a subsequent clause, or by inference therefrom, nor by any subsequent words, that are 'not as clear and decisive as the words of the clause giving that estate.” Nichols v. Boswell, 103 Mo. 158; Sevier v. Woodson, 205 Mo. 214; Jackson v. Littell, 213 Mo. 599; Settle v. Shafer, 22:9 Mo. 569; Middleton v. Dudding, 183 S. W. 444; McArthur v. Scott, 113 II. S., 381. That the subsequent inferential or doubtful part takes' the form of a trust makes no difference in the application of the rule. Comet v. Cornet, 248 Mo. 221; Howard v. Howard, 184 S. W. 993. (7) Subsequent parts of this will serve to confirm the vesting effect of the words “give, devise, and bequeath.” This is true of (a) the so-calldd spendthrift trust. O’Hare v. Johnston, 273 111. 458; Jones v. Jones, 223 Mo. 442; Taylor v. Mason, 9 Wheat, 351. (b) The clause charging the equitable estate with the payment of an obligation of the beneficiary guaranteed by the testator. King v. Ackerman, 67 U. S. 415. (c) The conduct clause. Collier’s Will, 40 Mo. 320, 327; Simmons v. Cabanne, 177 Mo. 347. (8) Wherever it is possible a will will be so construed as not to create a condition, particularly a condition precedent. Deacon v. Trust Co. 2;71 Mo. 687; Bryan v. Tylor, 129 Md. 150. (9) The condition here is subsequent. Burnham v. Burnham, 79 Wis. 557; Alexander v. Alexander, 156 Mo. 413; Simmons v. Cabanne, 177 Mo. 336; Jones v. Jones, 223 Mo. 445; Finlay v. King’s Lessee, 3 Peters, 346; Taylor v. Mason, 9 Wheat. 350. (10) The conduct clause, if construed as an attempt to set up and fix a definite standard of conduct, is void and incapable of enforcement because it is so indefinite and uncertain that the court cannot know from the words of the will what was the true intent of the testatoi\ Board of Trustees v. May, 201 Mo. 370; Reed v. Reed, 39 Mo. App. 477; Schmucker’s Estate v. Reed, 61 Mo. 600;'Hadley v. Forsee, 203 Mo. 428; Jones v. Jones, 223 Mo. 449-50. (11) The power of the trust company to determine “sobriety and good behavior” and “free will and desire” must be found in the statute. State ex rel. v. Lincoln Trust Co., 144 Mo. 562; Laws 1915, pp. 160-195. (12) The testator cannot enlarge or add to the statutory powers of the trust company. The meaning of the statute, whatever it' may be determined to be, was fixed by the Legislature when the enactment was made. Harwood v. Tracy, 118 Mo. 631; Church' v. McElhinney, 61 Mo. 543. (13) In construing the statute the court will heed: (a) The general object and purpose of the Legislature. Ross v. Ry. Co., Ill Mo. 26; Pembroke v. Huston, 180 Mo. 636. (b) All the provisions of the statute, to get at the true meaning of any portion. Riddick v. Walsh, 15 Mo. 536; Macke v. Byrd, 131 Mo. 690; State ex rel. v. Harter, 188 Mo. 529; State ex rel v. Ryan, 232 Mo. 92. (c) That general words shall be accommodated to the intent, whether general or specific. State ex rel. v. Fry, 186 Mo. 203; Pennington v. Coxe, 2 Cranch, 52. (14) The statute imports at least three distinct characteristics of trust companies and one explicit definition of and limitation upon, the kinds of trusts that they can assume and execute, which, taken together, are decisive of the issue here involved, (a) The corporation is totally wanting in personality: Laws 1915, secs. 144, 141, 142, 157; Chicago T. & T. Co. v. Zinzer, 264 HI. 31. (b) Financial responsibility (in contrast with the personality of an individual) is made the’ sole ground or basis for such confidence or trust as the corporation is authorized to assume and execute. Laws 1915, secs. 121, 154-156. And financial accountability is the sole measure of its fidelity. Laws 1915, secs. 129, subd. 9, sec. 181. (c) The corporation is organized solely for pecuniary profit; it is a professional trustee for hire. The trust company differs fundamentally from a benevolent trustee organized under Art. 10, Chap. 33, R. 8. 1909. Therefore, it is incapable by the law of its creation from assuming and executing a discretionary power that calls for an unmercenary, non-economical and moral standard of decision, People v. Binghamton Trust Co., 139 N. Y. 192; Constitution, art. 12, sec. 7; Reyburn v. Bakewell, 88 Mo. App. 647. (d) The statute necessarily excludes a testamentary trust or confidence that (a) by the language of its creation, and (b) its intrinsic nature cannot be delegated to a substitute trustee without (a) violating a fundamental principle of equity jurisprudence and (b) .defeating.the expressed intent of the testator. Bodley v. Taylor, 5 Cranch, 225; State ex rel. v. Dearing, 180 Mo. 64; Arnett v. Williams, 226 Mo. 118-9;. Safe Deposit Co. v. Sutro, 75 Md. 365; .Hazel v. Hagan, 47 Mo. 281; Bales v. Berry, 51 Mo. 451; Donaldson v. Allen, 182 Mo. 62!6; Security Co. v. Snow, 70 Conn. 288; Dillingham v. Martin, 61 N. J. Eq. 276; Whitaker v. McDowell, 82 Conn. 195. (15) The intention of the testator, if inconsistent with the. law, must give way. Brown v. Rogers, 125 Mo. 398'; Harbison v. Swan, 58 Mo. 154; Peugnet v. Berthold, 183 Mo. 64.

      Bryan, Williams S Gave for respondent.
    (1) In the construction of ambiguous — or alleged ambiguous — expressions in a will, the situation of the. parties may very properly and should be taken into view. And this is true even though the only question is as to the extent of the estate given a particular beneficiary. And oral testimony is admissible to show that situation. Smith v. Bell, 6 Peters, 68; Webb v. Hayden, 166 Mo. 46; Cornet v. Cornet, 248 Mo. 216; Robards v. Brown, 167 Mo. 457. Pew cases of will construction can be found in which the courts have not set out, and taken into view, the environment of the testator in attempting to gain his meaning. Schneider v. Kloepple, 198 S. W. 835. (2) The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail. Smith- v. Bell, 6 Peters, 68; R. S. 1909, sec. 583; Graham v. More, 189 S. W. 1186. And this intent is to be gathered from the four corners of the will. McCaffery v. Monogue, 196 U. S. 569. (3) “An estate granted in one clause of the will may be cut down to a lesser estate by an express provision to that effect or by words so strong and clear as to have that effect by plain' and necessary implication.” Cox v. Jones, 229 Mo. 53; Schneider v. Kloepple, 193 S. W. 835; Gibson v. Gibson, 239 Mo. 491. (4) The policy of the law in favor of the heir yields to the intention of the testator clearly expressed or manifested. McCaffery v. Monogue, 196 U. S. 569* (5) This will,, made under the existing conditions, read as a whole, clearly bespeaks the fact that the condition as to five years’ sobriety by Vincent was intended by the testator as a condition precedent both as to possession and title. Graham v. More, 189 S. W. 1186; Jarboe v. Heye, 122 Mo. 341; McPike v. McPike, 181 S. W. 2; Partridges v. Cavender, 96 Mo. 352; Re Estate of Mary C. Jones, 48 L. R. A. (Mich.), 580; Abend v. McKendree College, 174 111. 96-, French v. Northern Trust Co., 197 111. 30; West v. Moore, 37 Miss. 114; Starch v. Conde, 100 Wis. 633; Hawke v. Euyart, 30 Neb. 149; Reuff v. Coleman, "30 W. Va. 171; Gunning’s Estate, 234 Pa. St. 139; Bowman v. Long, 23 Ga. 242; Tattersall v. Howell, 2 Merv. 25; Perry on Trusts, par. 508; L. R. A. 1915 C, 1016, note. (6) The condition here leaving the question of sobriety, good behavior, free will and desire, etc., to the opinion, discretion or satisfaction of the named trustee, and authorizing the trustee to decide when the conditions had been performed, is neither indefinite nor uncertain. Jones v. Jones, 223 Mo. 450. (7) Even were the condition so indefinite as to be unenforceable, it being a condition precedent, the plaintiff could take no estate whatever. But the condition is definite and certain. (8) The Trust Company has full power and capacity to act as trustee in a trust requiring the exercise of discretion. There are no known lines of demarcation between different kinds of discretion, and none can be drawn. Laws 1915, pp. 165-6-8; 10 Cyc. 1125; 39 Cyc. 247; Clark & Marshall, secs. 149-150; Thompson on Corporations, sec. 2374; Perry on Trusts, secs. 42, 43, 44; White v. Rice, 112 Mich. 408; Minnesota Loan & T. Co. v. Beebe, 40 Minn. 7; Union Bank & T. Co. v. Wright, 58 S. W. 755; Chamber v. St. Louis, 29 Mo. 57; Vidal v. Girard’s Exrs., 43 U. S. 73.
   WALKER, C. J.

This is a suit to construe the will of Richard C. Kerens and the statute conferring power upon trust companies to execute trusts of this character.

The testator was a resident of the City of St. Louis and executed the will April 10, 1916, and died in the following September. In said will the testator named as executor and trustee the St. Louis Union Trust Company. The suit is brought by Vincent Kerens, a son of the testator against the trust company as trustee and the legatees and devisees other than the plaintiff. The .trial court sustained the trust created by the will and the plaintiff has appealed. We are concerned only with such portions of paragraph 12 of said will having reference to the matter at issue.

The introductory section to said paragraph 12 is as follows:

“All the rest, residue and remainder of my estate, real, personal, or mixed, of every description and wheresoever situate, of which I may die seized or possessed, or to which I may he entitled at the time of my death, together with all lapsed legacies and any and all property becoming a part of my residuary estate under the provisions of this my last will, the whole being referred to as my ‘residuary estate,’ shall be divided by my executor into three equal parts or portions, one of which I hereby give, devise and bequeath unto my daughter, Madeline Kerens Kenna; another of which I give, devise and bequeath unto my daughter, Gladys Kerens Colket; and the remaining one-third to the said St. Louis Union Trust Company, as trustee, for my son, Vincent Kerens, to have and to hold the same, for the uses and purposes upon the terms and conditions, and with the powers and duties hereinafter set forth.”

Subdivision “a” of said paragraph 12 provides for the management by the trustee of the estate.

Subdivision “b”' defines more fully the powers of the trustee.

Subdivisions “c,” “d” and “e” are in the following language:

“(c) During the lifetime of my said son Vincent or if said trust shall not be sooner terminated by the trustee pursuant to the power hereinafter, conferred upon it, during the life of said trust said trustee shall pay to him out of the net income accruing from said estate the sum of five hundred dollars on the first of each calendar month succeeding the time of my death and the remaining undistributed income it shall reinvest and hold as part of the corpus or principal of said trust estate subject to all the provisions of this Twelfth Clause of my will. If, at any time during the lifetime of my said son, he shall of his own free will and desire have passed five consecutive years of continued sobriety and good behavior and shall establish such fact by proof to the satisfaction of said trustee, then the latter, namely, said trustee, shall declare said trust to be at an end and thereafter convey, transfer and pay over to my said son Vincent all the trust property and estate then held or possessed by it as such trustee, and said trust shall thereupon be terminated.

“If at any time or times on account of serious illness or other unforeseen emergency, my said'son shall, in the opinion of said trustee, imperatively require the expenditure upon him or for his benefit of part of the accumulated and undistributed income or of the principal, said trustee is hereby authorized to appropriate and expend for such purpose such an amount as it may think necessary under the circumstances; provided, however, that whereas during my lifetime I became guarantor of the payment to my daughter-in-law, Jane H. Kerens, during her lifetime, or until her remarriage after his death, of the sum of four hundred and fifty dollars per month by her husband, my said son Vincent, I direct that if my said son shall fail to make to his said wife any of said monthly payments, or any part thereof, during the existence of this trust, said trustee shall pay out of such net income, before making the payment of five hundred dollars per month to my said son, all said monthly stipends to. his said wife which at the time may be due and unpaid, his right to receive his monthly stipend of five hundred dollars out of .said net income being subject to the prior payment of over-due instalments to his said wife as aforesaid; and provided further, that if my daughter-in-law shall prove against my estate or otherwise establish as a charge against the same her claim under her said agreement of which I am guarantor as aforesaid, the principal of the fund herein-above devised and bequeathed in trust for my said son shall be charged with the satisfaction of such claim until provision shall have been made for its payment or its release so that my estate generally shall not be charged with the payment of the same or any part thereof. And said trustee is hereby authorized, if such a contingency should arise, to use such part of said trust estate as may be necessary to procure the release or satisfaction of said claim of my said daughter-in-law.

■ “(d). It is my will, and I direct, that neither the income from said trust estate, hereby provided for said beneficiary, nor the principal fund, shall be liable for his debts, present or future, and shall not be subject to the right on the part of any creditor to seize or reach the same under any writ or by any proceeding at law or in equity. And said beneficiary shall not have any power to give, grant, sell, convey, mortgage, pledge or otherwise dispose of, encumber or anticipate the income, or any instalment thereof, or any share in the principal thereof, it being my will that no right of disposition of any such property shall vest in said beneficiary until the same shall have been actually transferred or paid over to him.

“(e). At the death of my said son, if said trust .shall not have been terminated as authorized in paragraph (c) hereof, all the trust property and estate in the hands of said trustee shall be distributed and turned over to my two daughters, Madeline Kerens Kenna and Gladys Kerens Colket, and to the descendants of either or both of them who shall have then died leaving any descendant or descendants surviving, in equal shares ■per stirpes.”

Relevant testimony necessary to an understanding of the facts and the determination of the cause will be set forth in the opinion as occasion requires.

The assignment of errors is as follows:

1. The court erred in admitting testimony explanatory of the meaning of the will and in • permitting the respondents to vary its meaning by extrinsic evidence.

2. The court erred in not holding that the will vested in the appellant the equitable title to óne-third of the residuary estate.

3. The court erred in holding that the conditions named were definite, certain and capable of enforcement.

4. The court erred in refusing to hold, that the conditions were subsequent and so vague and indefinite as to be incapable of administration.

5. The court erred in refusing to hold that the trustee had no power under the will or by law to determine the conditions attempted to be imposed and no authority to withhold the estate from appellant until he shall comply with such conditions or deprive him of said property if he shall fail to comply with the conditions of the will as by it interpreted.

6. The court erred in refusing to hold that under the will and the law the appellant is entitled to immediate possession of said equitable estate and that the remainderman are entitled to no interest therein.

These in their order.

Testimony.

I. As a general proposition a testator’s meaning is to be determined by his will alone and from this we must ascertain his intent, but if it is found that. the language is susceptible of two constructions, evidence of the testator’s feelings towards plaintiff may admitted which will enable the court to put itself, so far as may be, in the testator’s place, that the words used may be read in the light of his environmental the time the will was executed. [Tisdale v. Prather, 210 Mo. l. c. 408; Whitelaw v. Rodney, 212 Mo. l. c. 548; Tebow v. Dougherty, 205 Mo. l. c. 320; Bd. of Trustees v. May, 201 Mo. l. c. 369.]

If the terms employed are, therefore, unambiguous they will define themselves and the admission of outside facts will be unnecessary. Otherwise such evidence is admissible as will more clearly disclose the situation of the parties. For example, the admission of extrinsic evidence was deemed. necessary to determine the estate created, whether it was a fee or a spendthrift trust (Cornet v. Cornet, 248 Mo. l. c. 216), or to designate with certainty the beneficiary (Schneider v. Kloepple, 193 S. W. l. c. 836); or to determine whether the testator intended to create a condition precedent or subsequent (Meiners v. Meiners, 179 Mo. l. c. 625); or whether an absolute legacy or one in trust was intended (Webb v. Hayden, 166 Mo. l. c. 46); or to render clear ambiguous expressions, determine the ties connecting the testator with the legatees, or the affection existing between them, and the motives which may reasonably be supposed to have influenced the testator in the disposition of his property (McMahan v. Hubbard, 217 Mo. 624; Smith v. Bell, 6 Pet. l. c. 68). The admission of oral testimony as thus authorized does no violence to the rule that a testator’s intentions are to be determined from the will itself — the purpose of the admission being that the court may be enabled as near as possible to put itself in, the place of the testator at the time he made the bequests, and thus view his acts as of the time when and under the circumstances, then existing.

The statute (Sec. 583, R. S. 1909)'which enjoins courts to have a due regard to the directions of wills and the true intent and meaning of testators, is aided, not • militated against, by the .admission of testimony of the character here under review. If doubt exists from the terms of a will as to the testator’s purpose, in what other manner than by the admission of extrinsic testimony can that purpose or his true intent and meaning be ascertained and the directions of the will intelligently interpreted? We are, therefore, of the opinion that there was no error in the admission' of the extrinsic testimony herein. In thus ruling we do not minimize the force of the old English maxim that the testator’s intention is to be regarded as the pole star in directing the court in the construction of a will (Gulliver v. Poyntz, 2 Wils. 141). Added radiance is given to the luminary thus defined by the admission of the oral testimony and the court’s course more clearly indicated.

The wm construed,

II. An interpretation of the will according to its terms, aided by such extrinsic testimony as may be necessary to enable us to view it from the vantage of the testator, necessitates a determination of the question whether the condition under which the trust was created is to be construed as precedent or subsequent, ppe win was after repeated fruitless efforts on the part of the testator to reclaim the plaintiff from his weakness for drink and the demoralizing effects of drunkenness. This form of dissipation, with the consequent dependent condition of the plaintiff upon the bounty of his father, had persisted during the young manhood of the plaintiff, who was still within the thirties at the time of the former’s death. We are concerned with this phase of the case only so far as it may aid in construction. While the terms of the will are sufficiently definite to determine the testator’s intention in the creation of the trust, the motive which moved this intention and the purpose thereby sought to be effected cannot but be illuminated by evidence of the plaintiff’s delinquency and the testator’s knowledge of same extending over a period of years. Armed with this knowledge^ uncertain on account of frequent disappointments, yet hoping that in the fulness of time the plaintiff might reform, the testator created the trust, named the trustee, directed that it be placed in possession of the portion of his estate designated and defined its powers. His purpose was to place the principal of same beyond the prodigal and elastic grasp of the plaintiff, who, up to that time had never been capable of maintaining himself; and to provide with the income arising therefrom a certain support for the plaintiff during his life. With that flickering spark of hope which oftentimes fitfully glows in a parent’s heart long after it has become dead, cold ashes elsewhere, the testator further provided that if plaintiff should at any time, of his own free will and desire, have passed five consecutive years of continued sobriety and good behavior and should establish such fact to the satisfaction of the trustee, then the trust should terminate and the estate be turned over to him.

The conclusions deducible from the terms of this trust are the right of the trustee to the custody of the body of the estate, its continued possession of same with power, as directed, of disposing of the income therefrom subject to the termination of the trust. Without these powers the trust would be incapable of execution and the purpose of the testator would be utterly defeated. A trust incapable of execution under its own terms is futile. This cannot be so classified. The power it confers is ample for the purpose contemplated. Active in its nature, it panoplies the trustee under subdivisions “a” and “b” of the will — which we have not heretofore set out at length — with power to hold and manage the interest devised during the existence of the trust, to pay taxes and other charges against the property and all legal and proper expenses incident to it® care and protection and such other expenses as may be connected with the execution of the trust; to invest cash forming part of the principal, lend same upon approved security or expend it in the purchase of personal or real property; and to sell any part or parts of said estate in such manner, at such times and places, and for such consideration as it may approve; to lease or rent any part of the real property belonging to said trust estate on such terms or conditions as it may approve; to borrow money and secure its payment by mortgages or pledges of the personal or real property of said estate whenever and as often as in the opinion of the trustee said actions will be conducive to the interests of the estate; to make and carry out any agreement with any pel's on or persons for a sale, division or distribution of any property said trustee may hold or own in common with such other person or persons; and in the execution of any of the powers enumerated to make and execute deeds, leases, mortgages, conveyances or other instruments deemed by said trustee necessary and appropriate to such end or ends.

The foregoing provisions declaratory of the status and powers of the trustee, together with other pertinent portions of the will, when given their plain ordinary meaning are of controlling importance in determining the testator’s intention. [Deacon v. Trust Co., 271 Mo. 669, 197 S. W. 261.]

In the presence of the powers thus conferred, which are as comprehensive and absolute as can be expressed in words, considering the nature of the subject and the purpose contemplated, there is nothing left in the estate to which the plaintiff can, under existing conditions, make a claim except the specified legacy of $500 per month. That this is the definitive limit of his' claim upon the estate is evident from subdivision ££d” supra of the will, which, supplementing the provision in regard to the allowance to the plaintiff provided for in subdivision ££c” supra, directs that neither the income from the trust estate nor the principal shall be liable for plaintiff’s debts, present or future, nor subject to the right of any of plaintiff’s creditors; nor shall he have the power to give, grant, sell, convey, mortgage, pledge or otherwise dispose of, encumber or anticipate the income, or any instalment thereof, or any share of the principal, it being, as the testator further provides, his will that no right of disposition of any of such property shall vest in plaintiff until the same shall have been actually transferred or paid over to him. By which last clause is meant that he shall, as is, evident from not only the purport but the tenor of the trust, have complied with the condition explicitly prescribed by the testator.

From the foregoing provisions these deductions follow: that there was created a trust estate; that the title to same was invested in the trustee; that this title carried with it the right in the trustee to the possession of the property and its care, control and domination, subject only to the limitations of the trust; that this title was to be divested only upon two grounds, one, the conduct of the plaintiff, and the other his death.

The investiture of the title thus being complete and absolute for the purpose prescribed, nothing was left upon which an interest of the plaintiff therein could be based, his allowance being clearly in the nature of a gift or a donation. The certainty of payment and continuance of duration of this gift did not in any wise change its-nature. In order, therefore, for the plaintiff to acquire an interest in the estate it was necessary for him to comply with the terms of the trust, such compliance being . a condition precedent to the establishment of his right. Absent such compliance and no estate could vest in him. To rule otherwise would be to ignore .the elementary meaning of a condition precedent, which the texts tell us is one which must be fulfilled before the estate or interest can vest.

In reaching this conclusion we are not unmindful of the well settled rule frequently recognized in this jurisdiction, from the Collier’s Will case, 40 Mo. 322, to that of Deacon v. Trust Co., supra, that wherever it is possible, with a proper regard for the evident purpose of the trust, such a construction will be given a will as to obviate the creation of an estate subject to a condition, particularly a condition precedent. But where, as in the instant case, it is evident that it was the testator’s intention to create an estate of this character, no other alternative is left but to so declare.

This will differs in no wise, except in the particular terms employed, from many others which have received judicial interpretation; and, while it is true, as was said in Gulliver v. Poyntz, supra, that “unless a case be cited directly in point and agree in every circumstance it will have little or no weight with the court,’’ the rulings upon what constitutes a condition precedent in cases of this character are sufficiently similar in their controling facts to justify their citation as precedents.

In Jarboe v. Hey, 122 Mo. 341, the reformation of a profligate son was made a condition of his taking an interest in his father’s estate — such reformation, as in the case at bar, to be determined by the trustee. In construing the will we held that this constituted a condition precedent a compliance with which was prerequisite to the vesting of the estate. This 'ruling has never been questioned, but on the contrary, wherever the tenor of a devise is of like import,, it has been approved. [McPike v. McPike, 181 S. W. l. c. 7.]

In Markham v. Hufford, 123 Mich. 505, the condition of a legacy was that it was to be paid to the legatee, if at the expiration of two years from date of .the demise 'of the testatrix the legatee shall in the judgment of the executors be deemed a reformed man. The court, in construing the will, held that it was the evident intention of the testatrix that the legatee should not have the legacy unless within two years after .her death he should change his course of conduct; and she selected persons in whom she had confidence to determine the question at the proper time. It was left to their judgment and the inference is they knew the legatee’s faults. Unless at that time the executors should determine that he was a reformed man the provision would bp inoperative. It was unnecessary for the testatrix to make a record of the legatee’s faults. It is a valid condition to require the reform' of bad habits. [Citing Dustan v. Dustan, 41 Paige, 509; Webster v. Morris, 66 Wis. 366.] The court further held that a condition which involves anything in the nature of a consideration is, in general, a condition precedent In reaching this conclusion the concise definition of a conditional legacy from 2 Williams on Executors (7 Am. Ed.), 558, was quoted, to the effect that “it is one- the existence of which depends upon the happening, or not- happening, of some uncertain event, by which it is either to take place or be defeated. No precise form of words is necessary in order to create a condition in a will,'.but whenever it appears that it was the testator’s intent to make a condition, that intent shall be carried into effect. ’ ’

Of a like tenor and, if possible, more particularly applicable- to the case at bar, is the ruling of the Supreme Court of the United States in Finlay v. King’s Lessee, 3 Pet. 346, in which the court said, at page 374:

“It is certainly well settled that there are no .-technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently, and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the act on which the estate depends, must be performed before the estate can vest, the condition is, of course, precedent; and unless it be performed, the devisee, can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it — if this is to be collected from the whole will — the condition is subsequent.”

In addition, the curious will find in Markham v. Hufford, supra, a compilation of rulings of courts of last resort as to what constitutes under the different facts stated a "condition precedent. It is not deemed necessary to burden this opinion with their particular citation.

In Webster v. Morris, 66 Wis. 366, the testator made a bequest to a grandson the income of which was to be used fot his support until a certain age, when the. principal sum was to be paid to him, “provided he has in the meantime learned some useful trade, business or profession and is of good moral character;” and the executors were to determiné whether he had complied with this proviso. It was held that this condition was not indefinite, uncertain or contrary to good morals or public policy and was valid. This on the theory that every person has a legal right to dispose of his own property as he sees fit: The court, in holding the condition to be valid and its performance necessary before the principal sum could be paid to the grandson, cited a large number of cases, English and American, in support of its conclusion.

In Brennan v. Brennan, 185 Mass. 560, a testatrix devised and bequeathed all of the residue of her estate to one of several heirs at law, t(to him and his heirs forever, provided that he shall take care of me and lo.ok after me while I live.” The person named as devisee had no knowledge of this provision of the will until after the death of the testatrix and had not performed the requirements of the clause. Held that the devise was not a fee simple, but one upon a condition precedent to be performed during the lifetime of the testatrix and that the devisee’s lack of knowledge of the will until after the death of the testatrix was immaterial as affecting the nature of the devise.

In Abend v. McKendree College, 174 Ill. 96, the testator had an insane son. In his will the testator created a trust fund and provided that the trustees should use the income and such portion of the principal as in the discretion of the trustees might be deemed necessary for the maintenance of the son. The will contained this further proviso: “And in case my said son James shall recover from his unfortunate condition gnd become of sound mind, I direct that the above named sum, so increased or diminished, as the case may be, shall be by the above named trustees paid over to the said James, and in case my said son James shall never recover, the use of his reason, then I direct that the said trustee shall, at his death, pay over the above named sum, so increased or diminished, to the Commissioners of the Endowment Fund of McKendree College. ’ ’ The son died insane and a controversy arose between the trustees and the commissioners of the college ,as to the right to the fund. The court held that under the will the son took no estate but a mere interest in the income and that no estate vested in the absence of the happening of the condition precedent, to-wit, his return to sanity.-

Respondent’s brief contains references to many other cases of like effect to the foregoing. Their citation here can serve no purpose except to unduly lengthen this opinion. The hallmark of interpretation in all of them, as repeatedly stated, is the intention of the testator as determined from the language of the particular will. Applying this test here we find the words employed susceptible of no other reasonable construction than that the testator intended to create a condition a compliance with which was an essential prerequisite to the vesting of an estate in the plaintiff. A review of analogous cases has but tended to strengthen this conclusion.

t^Trustee.

III. It is contended that the trustee, being a corporation, has no power to execute this trust. For the measure of its corporate powers we must look to the .act of its' creation, found in Article III, Laws 1915, pp. 160-195. We make special reference to such portions of said act as have a material relevance to ibe matter in controversy, as follows: In Subdivision 4, sec. 127, p. 166, of same, it is provided that a trust company may take, accept and hold by devise or bequest any real or personal property in trust and to execute and perform any and all such legal and lawful trusts in regard to same upon the terms, conditions, limitations and restrictions, declared, imposed, established or agreed upon in and by such devise or bequest* and under Subdivision 9 of said Section 127 it is provided that siich company may act as executor and trustee under the last will of the estate of any deceased person; and under the initial paragraph of Section 129, p. 168, of said act, upon a trust company having been nominated as executor of the last will of a deceased person letters testamentary are required to be granted to it; and under Subdivision 3 of said Section 129 it is provided that a trust company may be appointed and empowered to act as a trustee or in any other fiduciary capacity in the manner now provided by law for the appointment of individuals to any such office. A resume of these powers as defined by statute may aid in a readier comprehension of their nature and extent. Under them a trust company may hold devised property in trust, and execute such trust in conformity with the declared intentions of the trust- or or testator; act as executor and trustee; have letters testamentary granted to it; and, generally, act as trustee or in any other fiduciary capacity, in the manner now provided by law for the appointment of individuals to any such office.

The authority thus conferred is explicit; it is in harmony with the purpose for which the trust company was created; it contravenes no law, organic or statutory; and is not against public policy. The trust created is well within these powers and hence the established rule of construction to which we gave affirmative-recognition in State ex inf. Crow v. Lincoln Trust Co., 144 Mo. 562, in regard to the limit of the exercise of corporate powers, is not violated.

The only question remaining for determination is whether in the performance of the trust the company has such an implied power, arising by necessary implication from that expressly granted, as will enable it to exercise the judgment of a natural person in determining, if occasion arises, whether the plaintiff has complied with the conditions which will entitle him to the estate.

The incertitude of an officer of the trust company in declining to reply definitely to an inqury of counsel for plaintiff as to the quantum of proof that would be required to entitle the plaintiff to the estate, coupled with that officer’s unnecessary conclusion that one committee on estates of the trust company might find differently from another, constitutes no reason, by analogy or otherwise, to sustain the conclusion that the implied power does not arise by necessary implication out of that expressed. Such an argument may properly be directed against the wisdom of naming a corporate trustee in a case of this character, rather than a natural person, but it can serve in no wise to define the limits of the trustee’s implied powers, which, under our statute are the same in an artificial as in a natural person, in that powers implied must be determined by a reasonable deduction from those expressed, construed with a view to the performance of the purpose of the trust. [Laws 1915, p. 165 et seq.; Chambers v. St. Louis, 29 Mo. l. c. 577; Thompson, Corporations, sec. 2374; Clark & Marshall, sec. 1490.]

If, therefore, it appears that the exercise of the implied power is essential to effect the clearly defined purpose of the testator' — in this case the determination of the character of plaintiff’s conduct — then it should be held that such implied power arises by necessary implication out of that expressed. In the absence of such a construction the intention of the testator would in this case be defeated and the purpose of the trust as a consequence destroyed. It is contended that the right to determine the condition in question can only be exercised by a natural person — in other words, that the judgment necessary to- the proper performance of a trust of this character cannot be satisfactorily exercised by a corporation. This, it will be found, is a distinction more artificial and imaginary than real. An examination of the authorities justifies the conclusion heretofore reached, and as having been sustained by our statute, that a corporation with legal capacity, to hold property may take and hold it in trust when authorized by law in the same manner and to the same extent as a private person. [White v. Rice, 112 Mich. l. c. 408; Union Bank & Tr. Co. v. Wright, 58 S. W. 755; Minn. L. & Tr. Co. v. Beebe, 40 Minn. 7.] From this it follows that when the law has clothed a corporation with power to exercise the functions of a trustee, including the possession, care, custody and disposition of property and has prescribed the condition upon which the trust shall terminate, it cannot be said with any degree of reason that it is not possessed of the consequent power, within the terms of the trust, to determine whether the prescribed condition has been performed and the trust terminated. A statute should always be construed so as to effectuate the purpose of its enactment. To accomplish this end, the meaning of words may, with a proper regard for the object to be attained, be restricted and at other times extended. Neither course is necessary in the case at bar. The provisions of the statute are plain and unequivocal and they confer ample power upon the trust company to execute the trust; and the definite terms of the latter leave no doubt as to the purpose contemplated by the testator and the extent of the power he intended to eon-fer on the trustee. Under this state of facts it cannot he otherwise reasonably concluded than that, in addition to the express power conferred on the trustee, it is clothed by necessary implication with such added power as will enable it to intelligently determine, upon the submission of proof by the plaintiff, whether his conduct has been such as to authorize the turning over of the estate to him and thus terminate the trust. We examined with some degree of care the cases cited and discussed by counsel for the plaintiff in opposition to. the conclusions we have reached herein, but do not find, upon a comparison of the facts in such cases with those at bar, any sufficient reasons to hold otherwise than we have indicated. From all Of which it follows that the judgment of the trial court should be affirmed and it is so ordered.

All concur except Graves, J., who dissents from paragraph 3 and result; Woodson; J,, absent.


author: BLAIR, J.

text:
    STEPHEN KERSTEN, by JACOB KERSTEN, His Next Friend, Appellant, v. WALKER D. HINES, Director General of Railroads Under United States Railroad Administration.
    In Banc,
    July 12, 1920.
    1. REASONS FOR.NEW TRIAL. The memorandum opinion filed by the trial judge throws light on the reasons expressed in the order granting a new trial.
    2. NEW TRIAL: Remarks of Counsel: Reference to Inadmissible Evidence. A statement questioning the signature to a paper which was not admissible in evidence and whose admission over proper objection would have been reversible error, made by counsel before he withdrew his objection to its admission, is not a ground for granting a new trial to the opposite party.
    3. -: -: Not Assigned by Trial Court: Burden; ,• Presumption. In an appeal from an order granting- a new. trial the burden is upon appellant to show that the ground- upon .which the- court put the order does not support it; and as to other remarks of appellant’s counsel charged in the motion to have heen prejudicial, but not assigned by the trial court as a ground for granting a new trial, the presumption will be indulged on appeal that the ruling was right until respondent shows to the contrary.
    4. -: -: -: Discretion: No Exceptions. With respect to argument of counsel to the jury the trial court is vested with a discretion which will not be overruled unless it is shown to have been arbitrarily exercised; and where the trial court almost invariably ruled with respondent upon the remarks complained of and counsel saved no exceptions to the court’s' ruling or lack of ruling in connection therewith, it cannot be ruled on appeal that such other remarks, not assigned by the trial court as a ground ' for the new trial in its order granting the same, justify the order.
    5. ACTION AGAINST RAILROADS: Substitution of Director General. Under the circumstances of this case, which was originally brought in May, 1918, for an injury received in February,' 1918, against two railroad companies, the trial court did not err in permitting the substitution of “Walker D. Hines, Director General of Railroads,” as the defendant, nor did it err in refusing to substitute “Walker D. Hines, Director General of Railroads in charge of the Missouri Pacific Railroad Company” for “Walker D. Hines, Director General -of Railroads,” nor did it err in refusing to instruct that in the absence of proof that the train which injured plaintiff was one of the Missouri Pacific Railroad Company the verdict must be for defendant.
    6 —--: -: Judicial Notice. The Supreme Court takes judicial notice that prior to February 1, 1918, the Director General assumed control of the properties of railroad companies in this State.
    7 --: -: Acquiescence of Defendant: Legality of Order No. 50. It is not necessary to determine whether under Order No. 50, issued by the Director General on October 28, 1918, the Director General of Railroads could be legally substituted as a defendant, against the protest of a plaintiff, in lieu of a railroad company on whose line the personal injury occurred, where at the trial plaintiff consented to the substitution, it was suggested by the Director General, he saved no exceptions to it, but amended his answer to conform to it, and suggested and secured a stipulation that any judgment which might be rendered should be rendered against him as Director General of Railroads “and not otherwise; “.for under such circumstances, he is in no position to question the legality of Order No. 50, which expressly provides that such actions shall be brought against the Director General of Railroads “and not otherwise."

      8. -: Judgment Against Director General: Substitution of Agent. Section 206 of the Act of Congress of February 28, 1920, authorized the appointment of an “agent” in lieu of the Director General oí Railroads and expressly provided that pending actions should not abate by reason of the termination of Federal control, “but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a),” Held, in a case tried in February, 1919, and heard on appeal at the April Term, 1920, that plaintiff’s motion to substitute, as defendant, “Walker D. Hines, the Designated Agent Under Subdivision (a) of Section 206 of the Transportation Act of 1920” for “Walker D. Hines, Director General of Railroads under the United States Railroad Administration,” should be sustained.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Reversed and remanded (with directions).

      Sidney T. Able and Charles P. Noell for appellant.
    (1)' The trial court erred in setting aside the verdict of the jury and granting the respondent a new trial herein. A party offering in evidence what it claims is a memorandum in the handwriting of a witness without first having given the witness an opportunity to explain the memorandum or to testify as to its genuineness is not entitled to have such claimed memorandum go before the jury. Such party cannot complain if the opposing party offers to withdraw his objections to such evidence if such party fulfills some condition required by the opposing party (in this case the submission .of the paper to some handwriting expert), and where the opposing party finally withdraws objection to the paper and permits it to go in evidence, such party cannot close the mouth of the opposing party and thereby require him to admit the genuineness of a written memorandum when such opposing party has access to other evidence in the case which contains the handwriting of the same witness (in this case the signature of Officer Coyle appears on the deposition in file’in the case). Such opposing party would undoubtedly have the right to have compared such writings, that is, the claimed handwriting of Coyle on the memorandum claimed to have been made by him with his known genuine signature which appeared on the deposition.. Harrison v. Lakeman, 189 Mo. 581, 607. (2) After making a formal stipulation in open court the respondent cannot on appeal complain of the action of the trial court for thereafter during such trial ruling in accordance with this stipulation. State v. Keithley, 204 S. W. (Mo.) 24; Pratt v. Conway, 148 Mo. 291; Moling v. Barnard, 65 Mo. App. 600 ; Mitchell v. Brown, 190 S. W. 354. (3) Respondent cannot preserve for review abandoned pleadings. (4) Respondent cannot be.heard to say that he is not in court, or that the court érred in ruling in such a way as to allow any judgment rendered for plaintiff to go against him, after coming into court at his own instance after filing an answer to the merits and after having stipulated that the judgment, if any, for plaintiff should be against him. Kepley v. Railroad, 200 S. W. 756; Newcomb v. Railroad, 182 Mo. 707; Thomasson v. Ins. Co., 217 Mo. 485.

      James F. Green and II. II. Larimore for respondent.
    (1) The trial court was in error in permitting the plaintiff, after he had alleged in his petition that the cause of action accrued by reason of the operation of the Missouri Pacific Railroad by Walker D. Hines, Director General, had introduced testimony in support of such allegation and closed his case upon that theory, to amend his petition by striking out all reference to the Missouri Pacific Railroad or any other railroad, and go to the jury upon the bare allegation that the train in question was being operated by the Director General. Sec. 10, Act of Congress of March 21, 1918; Rutherford v. Railroad,' 254 Fed. 880; Dodson v. Scroggs, 47 Mo. 285; Héadlee v. Cloud, 51 Mo. 301; Winslow v. O ’Pry, 56 Ga. 138; Watson v. Collins, 37 Ala. 587; Daniel „ v. Hollingshead, 16 Ga. 190; Hamilton v. Ewing, 6 Blackf. 88; 39 Cyc. 653. (2) Also the action of the court in permitting the plaintiff after his case was closed, to make the amendment above referred to resulted in a situation where the plaintiff sued upon one alleged cause of action, introduced testimony in support thereof and then went to the jury upon another and entirely different cause of action; because of this the motion for new trial should have been sustained. Peters v. Carroll, 153 Mo. App. 375; Waldhier v. Railroad, 71 Mo. 514; Henry County v. Citizens’ Bank, 2'08 Mo. 209; Chitty v. Ry., 148 Mo. 64; Jordan v. Railroad, 105 Mo. App. 446. (3) The conduct of counsel for plaintiff, both at the time the statement of Coyle was introduced in evidence with the consent of such counsel and in his closing argument wherein he continuously misstated the law and the facts with reference to such statement, was such as to justify, and in fact compel the court in the interest of justice, to grant to defendant a new trial. Third Ave. Ry. Co. v. Mills, 249 Fed. 661; Jack-man v. Ry. Co., 206 S. W. 244. (4) Motion for new trial because of misconduct of counsel in the presence of the jury is addressed largely to the judicial discretion of the court. State ex rel. v. Ellison, 256 Mo. 662; Stetzler v. Met. St. Ry. Co., 210 Mo. 704; Warnke v. Rope Co., 178' S. W. 76.
   BLAIR, J.

This is an appeal from an order granting a new trial in an action for injuries to Stephen Kerston, a minor. Tbe injury occurred February 1,1918, and the action was begun May 17,1918. The trial occurred in 1919. The boy lost both legs and was otherwise injured. The motion for new trial was -sustained on the ground that certain remarks of counsel during the trial constituted error. The facts in connection with the several questions discussed are subsequently stated.

Remarks of Counsel,

I. The motion for new trial was sustained “because; of the action of counsel for plaintiff in making statements on the trial in the presence and hearing of the jury intimating emphatically that the report made by Officer Coyle, introduced in evidence, and the signature thereof were not genuine. ’ ’

In order that this ruling may be understood it is necessary to set out the facts which gave rise to it. Coyle’s deposition had been taken jby respondent on August 10, 1918, at the Marine Barracks, near Paoli, Pennsylvania. In that deposition Coyle testified that on February 1, 1918, the date appellant was injured, he was a member of the St. Louis Police Force, assigned to the Fifth District; that about 4:30 p. m. on February 1,1918, he arrived with the ambulance at the watchman’s shanty at the corner of Main and Brooklyn streets in St. Louis and there saw appellant for the first time; that he placed appellant in the ambulance and conveyed him to the city hospital. “Q. Did he make any statement while in the ambulance or at the hospital? A. He did not, for his head had been crushed, his ankle was crushed also and he was suffering from numerous bruises and abrasions of the head and body. Q. What was his condition with respect to consciousness? A. Unconscious.” Coyle testified his duty was to secure all the witnesses possible; that he attempted to do so, hut was unable to find anyone who had seen the accident; that he had no personal knowledge; was at the police station when the accident occurred. ‘ ‘ Q. Did the hoy at any time make any statement? A. No, he made no statement whatever. Q. Mr. Coyle, you made a complete report to your captain? A. I did; which was copied by the clerk at the Fifth District Police Station, which is on record at that station. This report consists of a statement of facts in a general way. Q. This report is on file at Fifth District, is it? A. It should he- on file. Q. Does this report set out correctly what you know about the case? (Objected to by appellant’s counsel.) A. To the best of my knowledge and belief it does.”

On cross-examination Mr. Coyle said the report was made out by the police clerk at the station from notes made by him — Coyle. On the trial this deposition was offered and read in evidence by appellant’s counsel. •

Respondent’s counsel called a police officer to prove the signature of Coyle to a written statement respondent-desired to put in evidence. The following then occurred:

“ Q. I will ask you to look at that paper that I hand you and examine it and let me know in whose handwriting it is and whose signature it is on there. (Handing paper to witness:)

“Mb. Able: I wish to object to that, as I don’t see how it is relevant in this case in any way, as to whether that is Mr. Coyle’s signature on there. An affidavit has been filed as to what Mr. Coyle would say if he were here, which the defendants no doubt will read, and this deposition has been taken. He is not here to say whether that is his handwriting or not, and we do not know whether it is his handwriting or not, and I can’t see how that could be material in this case. '

“Mb. Hezel: They read the deposition this morning of officer Coyle, in which he said this boy hadn’t said anything, and we have a right to impeach that testimony in any proper manner, irrespective of the affidavit, I mean, and the statement that it was conceded yesterday he would make if he was here.

“The Coubt: You read it.

Mb. Able : I did, but Mr. Coyle should be faced with that very report and asked. That deposition was taken by these defendants. If they wanted to question him about it, why come up here when he has no chance and we haven’t any chance to question Mr. Coyle about a paper we don’t know anything about, and offer it in evidence in this way?

“Mb. Hezel: The statement says he made a report; his deposition shows it.

“The Coubt: The officer may testify to the signature and I will pass on the competency when it is offered.

“To which action and ruling of the court plaintiff by his counsel then and there duly excepted and still excepts.

“A. This is officer John Francis Coyle’s signature.

“Mb. Hezel: Q. All in his handwriting? A. Yes, sir. I assigned him to this case myself.

“Q. Where has this paper been since? A. Filed in onr record room.

“Q. In your record room at the Fifth District? A. Yes, sir.

“Q. And did yon get it from there? A. Yes, sir. “Mr. Hezel: Please mark that Defendant’s Exhibit F. (Said paper was marked for identification Def. Ex. F). • ;

“The Court: Yon will have to make this statement competent.

“Mr. Able: I am willing1 to select any handwriting expert and if they say these signatures are the same I will admit it without objection. I think there is a Mr. Mechin that makes a specialty of that work, and if he will say so I will pay half the expense on it and admit it — Gus V. H. Mechin. I will pay half the expense on it.

“Mr. Larimore : I object to those remarks.

■ “The Court: That sort of talk don’t help the court any.

“Mr. Hezel: That matter is a matter of public record. Anybody could see that. I know we saw it.

“The Court: Have you laid any proper foundation for this?

“Mr. Hezel: The question was asked this man Coyle whether or not this boy said anything with reference to how he was injured and he said he didn’t, because he was- unconscious. This is their witness, so we took his deposition at that time. Now Í want to prove that he has made a report in writing that the boy did tell him how this accident happened.

“The Court: Before you could do that, wouldn’t it be necessary to ask him if he did make a report in writing, in which he stated thus and so ?

“Mr. Hezel: Not when he denies the boy says anything.

“The Court : He doesn’t. First he denies, and then says, ‘If my report says so, he did say something.’

“Mr. Hezel: Then we have a right to show what his report is. We have a right to contradict his statement by showing he made contrary statements, where the question was as broad as it was and the answer was as it was. If I say, ‘Did you ever tell anybody this?’ and he says no, I don’t have to ask him, ‘Did you tell Judge G-rimm?’

‘ ‘ The Court : But when you ask him did he make his statement in writing to police headquarters and he says, ‘Yes, I did,’ and he also says, ‘I may have said something about the boy in that,’ and you don’t then ask him the question, for laying the proper foundation, didn’t you ask him that question so he could explain it correctly? That is entirely aside from the question. At the time he was testifying he was your witness, and not their witness. You musí look at the situation as it existed at that time. ■ j

‘ ‘.Mr. Hezel : Here is what we are contradicting—

“Mr. Able : We are going to withdraw our objection, your Honor, and let him read it. It will save us all time.

“The Court: That simplifies matters some. He withdraws the objection and you may read it.

“Mr. Hezel: I offer it now and read it in evidence. “(Said paper, Defendant’s Exhibit P, offered and read in evidence, is in words and figures as follows:)

“Feb. 1, 1918.
“Serg’t. Woodling,
“Sir:
“About 4:35 p. m. tbis date, Mo. Pac. R. R. Co’s engine No. 481, in charge of Engineer Theodore Sharleville, 3529 Caroline St., Fireman David Lynch, 3001 Chouteau Ave., Conductor Thomas Hubbard, 3826 Shenandoah Ave., and switchmen Arthur Mathews, 3418 Park Ave., Chas. A. Hughes, 2217 Gratiot St., and Ben C. Miller, 2217 Gratiot St., was moving a number of freight cars north over T. R. R. Ass’n tracks on Main St., when at the intersection of Main and Brooklyn Sts., one Steve Kersten, 13 years old, born in Mo., school-boy, residing with his parents, Jacob and Veronica Kersten, at 717-A Mound St., attempted to board one of the moving cars, and fell beneath the train, one car passing over his lower limbs, and throwing him to west side of track. The boy stated that he had been playing on approach to Mound St. viaduct at this point, and was attempting to steal a ride on said train when injured.
“City ambulance was called from this station and conveyed Kersten yia. Central Dispensary to City Hospital where Dr. Via-cent Townsend pronounced him suffering from lacerations of left leg and scalp, abrasions of face and traumatic amputation of right foot, very serious. His parents know, of his whereabouts, and are to be notified of further developments;
Witnesses:
“Jennie Pawloski, 13, 823 Brooklyn St.
Annie Siminski, 12, 717 Mound St.
“Respectfully,
“John P. Coyle, Prob. P.”

‘ ‘ Mr. Hezel : That is all.

‘ ‘ Mr. Able : That is all.

“Mr. Hezel: We now offer this testimony that it was conceded that John Francis Ooyle would give if he were present at this trial.

“ (Said offer of testimony is in words and figures as follows:)

“About 4:35 p. m. this date, Missouri Pacific Railroad’s engine No. 481, in charge of Engineer -Theodore Sharleville of 3529 Caroline Street, fireman David Lynch of '3001 Chouteau Avenue, conductor Thos. Hubbard, of 3826 Shenandoah Avenue, and switch-men Arthur Mathews of 3418 Park Avenue, Charles A. Hughes of 2217 Gratiot Street and Ben C. Miller of 2217 Gratiot Street, was moving a number of freight cars over Terminal Railroad Association tracks on Main Street, when at the intersection of Main and Brooklyn Streets one Steve Kersten, at 716A Mound Street, attempted to board one of the moving cars and fell beneath the train, one of the cars passing over his lower limbs and throwing him to west side of track.
“The boy stated that he had been playing on approach to Mound Street viaduct at this point and was attempting to steal a , ride on said train when injured.
“A city ambulance was called and he was conveyed via Central Dispensary to City Hospital, where Dr. Vincent Townsend pronounced him suffering from lacerations of left leg and scalp, abrasions of face and traumatic amputation of right foot, very serious.
“His parents know of his whereabouts and are to be notified of further developments.”

It was on account of the objections and remarks of counsel for appellant as above set forth that the court granted a new trial. This appears from the language of the order and is confirmed by a memorandum filed by the court which throws “light upon the view the circuit court took of” the matter. [Hays v. Hogan, 273 Mo. l. c. 11.] It will be observed that what the court deemed objectionable had already occurred when appellant’s objection was withdrawn and the statement admitted in eyidence. The statement was offered to contradict and impeach Coyle whose deposition had been offered. He had not been examined concerning it. It had not been called to his attention. He had been afforded no opportunity to explain such contradictions as appear or seem to appear between it and his deposition or to deny its authenticity. It was clearly inadmissible, had appellant not withdrawn his objection. [Gregory v. Cheatham, 36 Mo. 155; State v. Grant, 79 Mo. l. c. 132; State v. Devlin, 7 Mo. App. l. c. 36; Ely Walker Dry Goods Co. v. Mansur, 87 Mo. App. l. c. 113; Ayers v. Watson, 132 U. S. l. c. 404, 405.] These and other decisions show respondent could not have secured the admission of the paper as a matter of right. To have admitted it over a proper objection would have constituted reversible error. It was, in fact, admitted by grace of the withdrawal of the objection. Had the objection been insisted upon, the statement could not have been admitted at all. • It made no difference' what counsel said about the paper before he withdrew his objection. Eespondent could not complain thereof since the paper was not admissible under the rules of evidence. When the objection was withdrawn and the paper admitted, respondent thereby secured more than he was entitled to claim as a legal right. He cannot complain that he was not permitted to secure still more, the law being that he was entitled to nothing, under the rules of evidence. The reason the court gave for sustaining the motion for new trial is unsound.

Remarks

II. Eespondent brings forward certain remarks of appellant’s counsel made during the argument, and insists that these justified the order granting a new trial. In an appeal from such an order the burden is TPon the appellant to show that the ground upon which the court put the order does not support it; and “as to the other grounds of the motion, the presumption will be indulged that the court’s ruling was right until the respondent shows the contrary.” [State ex rel. v. Thomas, 245 Mo. l. c. 73, 74.] The effect of the order was to overrule all other grounds except that therein specified. • It is settled law that with respect to argument of counsel, the trial court is vested with a discretion which will not be overruled unless it is shown to have been arbitrarily exercised. As to the matter now complained' of, the court almost invariably ruled with respondent upon his objections, and counsel for respond-' ent were well enough satisfied therewith that they saved' no exception to any ruling or lack of ruling in that connection. In the circumstances we cannot hold that the trial court was wrong in overruling the ground of the motion for new trial pertaining to what occurred during the argument.

substitution GenerSCAs Defendant.

III. The injury for which damages are asked occurred February 1, 1918. The action was commenced May 17, 1918. While the record proper does not show it, it is inferable from the record that the action was begun against the Missouri Pacific Railroad Company and the Terminal Railroad Association of St. Louis. No answer was filed by either of these cornpanies, but Walker D. Hines, who described himself as Director General of Railroads in charge of the two companies named, filed his answer. At the beginning of the trial in February, 1919, at the suggestion of counsel for the Director General, acquiesced in by appellant, the petition was amended to show that the action was against Walker-D.- Hines as Director of Railroads, operating the Missouri Pacific Railroad Company, and Walker D. Hines, as Director General of Railroads, operating the Terminal Railroad Association of St. Louis. The trial proceeded, and it seemed to develop that the Terminal Railroad Association’s property was not connected with the movement which caused the injury, and an instruction was given to the effect that plaintiff was “not entitled to recover against the defendant Walker D. Hines, Director General of Railroads, operating the Terminal Railroad Association of St. Louis.” The court refused a like instruction as to “Walker D. Hines, Director General of Railroads, operating the Missouri Pacific Railroad Company.” Thereupon, “Walker D. Hines, Director General of Railroads” offered evidence tending to sustain'the issues upon his part. Some of this evidence was intended to show that the train which caused the injury was .operated by employees of the Director General in charge of the St. Louis Merchants’ Bridge Terminal Railway. There was evidence to the contrary. It was shown that the Director General was in charge of and operating all three of the roads on February 1, 1918, and that this was still the condition at the time of the trial. The court thereafter refused both respondent’s and appellant’s further offers of proof on the question whether the train which caused the injury was a Missouri Pacific train, and both the court and counsel for appellant accepted the suggestions of counsel for respondent that he be permitted to “take the petition' and strike out all but ‘Director General of Railroads ’ ” i. e. to strike out the words “in charge of the Missouri Pacific Railroad Company.” The caption was so amended and in the body of the petition such changes were made as to charge that the Director General was in “charge of the property of the Missouri Pacific Railroad Company” instead of “in charge of the Missouri Pacific Railroad Company. ’ ’

The court then excluded all testimony upon the question whether the train was in charge of persons operating, under the Director General, a particular railroad; on the ground that the evidence conclusively showed that it was being operated by the Director General and that it was immaterial on what particular tracks it was being operated. To this ruling.appellant’s counsel excepted, and respondent’s counsel did not. This followed a colloquy between counsel in which the following occurred:

Respondent’s Counsel: “To make my meaning clear, lets have this stipulation in the record; that if there is any judgment rendered for plaintiff, the same shall be rendered as against Walker D. Hines, Director General only, and not as Director General of any particular railroad company.”

Appellant’s Counsel: “That is agreeable to me, that the judgment read simply against Walker D. Hines, Director General of Railroads.”

Respondent’s Counsel: “And not as Director General of any particular railroad. ’ ’

Appellant’s Counsel: “That is agreeable to me and that is the way I understand the order that was issued from Washington.”

Following' this and the exclusion of the testimony mentioned, counsel for respondent refiled his answer, in which he describes himself solely .as “Walker D. Hines, Director General of-Railroads. ” This consisted of (1) a general denial; (2) an admission that respondent was the duly appointed Director General of Railroads; and (3) a plea of contributory negligence.

It is argued that the court erred in permitting the amendments which resulted in substituting Walker D. Hines, Director General of Railroads, for Walker D. Hines, Director General of Railroads in charge of the Missouri Pacific Railroad Company. The position of counsel is that the action should have proceeded against the Director General “in charge of the Missouri Pacific Railroad Company;” and in .the absence of proof that the train was one of the Missouri Pacific Railroad Company, an instruction to find for respondent should have been given. The trial court did not sustain the motion for a new trial on this ground. We do not think the Director General is in a position to raise the question.

August 29, 1916, in “an act making appropriations for the support of the army for the fiscal year ending June 30, 1917” was enacted the following:

“The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful and desirable.” [Sec. 1, Chap. 418, 39 Gen. Stats. 645; U. S. Comp. Stats. 1918, sec. 1974a.]

War was declared in April, 1917, and on December 26, 1917, the President, in the exercise of the powers vested in him by the quoted section, issued the following proclamation:

“It is hereby directed that the possession, control, operation, and utilization of such transportation systems hereby by me undertaken shall be. exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, receivers, officers and employees of said systems of transportation.- Until and except so far as said director shall from time to time by general or special orders otherwise provide, the boards of directors, receivers, officers, and employees of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names qf their respective companies.

“Until and except so far as said director shall from time to time otherwise by general or special orders determine, such systems of .transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission and to -all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said director, shall have paramount authority and be obeyed as such. . . .

‘ ‘ Except with the prior written assent of said director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said director may, by general or special orders, otherwise determine. ’ ’

Thereafter, on March 21, 1918, Congress passed an act (C. 25, secs. 8, 9 and 10, 49 Stat. at Large; U. S. Comp. Stats. 1918, secs. 3115-3/4h, and 3115-3/4Í and 3115-3/4j) which contains the following:

“The President may execute any of the powers herein and heretofore granted him with relation to Federal control through such agencies as he may determine, and may fix the reasonable compensation foí the performance of services in connection therewith, and may avail himself of the advice, assistance, and cooperation of the Interstate Commerce Commission and of the members and employees thereof, and máy also call upon any department, commission, or board of the Government for such services as he may deem expedient. But no such official or employee of the United States shall receive any additional compensation for such services except as now permitted by law.

“Sec. 3115-3/4Í. Act Aug. 29, 1916, c. 418, to remain in force; further powers of President — The provisions of the act entitled ‘An Act making appropriations for the support of the Army for the fiscal year ending June thirteenth, nineteen hundred and seventeen, and for other purposes,’ approved August twenty-ninth, nineteen hundred and sixteen, shall remain in force and effect except as expressly modified and restricted by this act; and the President, in addition to the powers con-. ferred by this act, shall have and is hereby given such other and further powers necessary or appropriate to give effect to the powers herein and heretofore conferred. The provisions of this act shall also apply to any carriers to which Federal control may be hereafter extended.

“Sec. 3115-3/4j. Liabilities of carriers; actions by and against. Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with- any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided'by law; and in any action at law or suit in equity against the carrier, no defense shall be made theréto upon the ground that the carrier is an instrumentality or agency of the Federal Government. Nor shall any such carrier be entitled to have transferred to a Federal court any. action heretofore or hereafter instituted by or against it, which action Avas not so transferable prior to the Federal control of such carrier; and any action which has heretofore been so transferred because of such Federal control or of any act of Congress or official order or proclamation relating thereto shall upon motion of either party be retransferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such Federal control.

“During the period of .Federal control whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not be suspended by the commission pending final determination. ’ ’

On March 29, 1918, the President issued his proclamation, the pertinent part of which is as follows:

“Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers and authorities so vested in me by said act and of all other powers me hereto enabling, do hereby authorize the said William G. McAdoo, Director General of Railroads, as aforesaid, either personally or through such divisions, agencies, or persons as he may appoint, and in his own name or in the name of such divisions, agencies, or persons, or in the name of the President . . . to make any and all contracts, agreements, or obligations necessary or expedient and to issue any and all orders which may in any way be found necessary and expedient in connection with the federal control of systems of transportation, railroads, and inland waterways as fully in all respects as the President is authorized to do, and generally to do and perform all and singular all acts and things and . to exercise all and singular the powers and duties which in and by the said act, or any other act in relation to the subject hereof, the President is authorized to do and perform.” [U. S. Comp. St., see. 3115-3/4h, note.]

“Except with the prior written assent of said director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of sáid transportation systems in the conduct of their business as common carriers.”

On April 11, 1918, a second proclamation of the President was issued, which includes the following:

“It is hereby directed that the possession, control, operation and utilization of such transportation systems hereby by me undertaken, shall be exercised by and through William G. McAdoo, who is'hereby appointed and designated Director General of Railroads. Said director may perform the duties imposed upon him so long and to such extent as he shall determine, through the boards of .directors, . . . officers, and employees of said systems of transportation. Until and except so far as said director shall from time to time by general or special orders otherwise provide, the boards of directors . . .' officers and employees of said transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers in the names of their respective companies.

“Until and except so far as said Director General shall from time to time otherwise by general or special orders determine, such systems of transportation shall... remain subject to all existing statutes of the United-States and orders of the Interstate Commerce Corarais-.sion, and to all statutes and orders - of regulating com- - missions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director General, shall have paramount authority and be obeyed as such.”

On October 28, 1918, the then Director General of Railroads issued Order No. 50, as follows:

“Whereas by the proclamations dated December 26, 1917, and April 11, 1918, the President took possession and assumed control of systems of. transportation and the appurtenances thereof and appointed the undersigned, William G. McAdoo, Director General of Railroads, and provided in and by said proclamations that until and except so far as said director shall from time; to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission and to all statutes ... . but any orders, general or special, hereafter made by. said director shall have paramount authority and be obeyed as such; and

“Whereas the act of Congress, called the* Federal Control Act, approved March 21, 1918 (sec. 10, -U. S. Comp. St. 1918, sec. 3115-3/4j), provided that carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions- of this act or any other act applicable to such federal control or with any order of the President; and

“Whereas since the Director General assumed control of said systems of transportation, suits are-being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during Federal control for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits and proceedings hereinafter. referred to, based on causes of action arising during or out of Federal control should be brought directly against the said Director General of Railroads and not against said corporations:

“It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceeding but for Federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads, and not otherwise; provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.

“Subject to the provisions of General Orders numbered 18, 18A and'26 heretofore issued by the Director General of Railroads, service of process in any such action, suit or proceeding may be made upon operating officials operating for the Director General of Railroads, the railroad or other carrier in respect of which the cause of action arises in the same way as service was heretofore made upon like operating officials for such railroad or other carrier company.

“The jpleadings in all such actions at law, suits in equity, or proceedings in admiralty, now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may on application be amended by substituting tbe Director General of Railroads for tbe carrier company as party defendant and dismissing tbe company therefrom.

“The undersigned Director General of Railroads is acting herein by authority of the President for and on behalf of the United States of America; ' therefore no supersedeas bond or other security shall be required of the Director General of Railroads in any court for the taking of or in connection with an appeal* writ of error, supersedeas, or other process in law, equity, or in admiralty, as a condition precedent to the prosecution of any such appeal, writ of error, supersedeas, or other process, or otherwise in respect of any such cause of action or proceeding.”

On January 11, 1919, this order was amended so as to substitute the name of Walker D. Hines for that of William G. McAdoo.

. We take judicial notice that prior to the date of the injury in this case the Director General assumed control of the properties referred to in the pleadings and evidence. [Hanks v. Hines, 219 S. W. l. c. 979.]

It is not necessary in this case to enter into the controversy over the question whether Order No. 50, as against an objecting plaintiff, legally justifies the substitution of the Director General of Railroads as defendant in lieu of the railroad company on whose line an injury has occurred. Appellant consented to the substitution and in this court maintains it was the legally correct course. Respondent seems to have suggested the substitution. He saved no exceptions to it, but amended his answer, to conform to it and suggested and secured a stipulation that any judgment which might.be rendered should be rendered against him as Director General of Railroads “and not otherwise.” He amended his answer to conform to this view, refiled it, and proceeded to judgment. He filed no affidavit of surprise. In fact, the record discloses that there was nothing done in this connection which did not receive respondent’s express or implied consent. The President’s proclamation reserved to the Director General the right to change by orders, snch as Order No. 50, the manner of suing in cases such as this. Order No. 50 expressly provides that such actions shall be brought against the Director of Railroads, “and not otherwise.” The Director appeared and secured or consented to changes which conformed the pleadings to the order and stipulated for judgment in accordance therewith, if judgment went for appellant. He is in no position to question the legality of Order No. 50. In such circumstances we think the trial court was right in overruling these .grounds of the motion for new trial, and that the order granting the motion on another ground cannot now be sustained because of these which the court overruled.

We are also of the opinion that the analogy between the official position of the Director General and administrators and receivers is not such as.to render the cases cited applicable in this case. A receiver represents stockholders and creditors. An administrator represents his intestate. Each has charge of an estate as the successor and representative of his predecessor in title and control. The position of the -Director General is to be viewed in another light. The Supreme Court (Northern Pacific Railway Company v. North Dakota, 250 U. S. l. c. 148) has pointed out the completeness of the control of the Director General and the entire exclusion of the private ownership theretofore existing.

“No elaboration could make clearer than do the Act of Congress of 1916, the proclamation of the President exerting the powers given, and the Act of 1918 deal-. ing with the situation created by the exercise of such authority, that no divided but .a complete possession and control were given the United States for all purposes as to the railroads in question. ' But if it be conceded that despite the absolute clarity of the provisions concerning the control given the United States, and the all-embracing scope of that control, there is room for some doubt, the consideration of the general context completely dispels hesitancy. How can any other conclusion be reached if consideration be given the comprehensive provisions concerning the administration by the United States of the property which it was authorized to take, the financial obligations under which it came and all the other duties and exactions which the act imposed, contemplating one control, one administration, one power for the accomplishment of the one purpose, the completé possession by governmental authority to replace for the period provided the private ownership theretofore existing.”

In any event, the course of the Director General at the trial precludes him (and his successors) from maintaining the position now assumed.

Agent for General.

IV. Appellant has filed a motion to substitute, as respondent, “Walker D. Hines, the Designated Agent Under Subdivision (a) of Section 206 of the Transportation Act of 1920,” for “Walker D. Hines, Director General of Railroads Under the United States Railroad Administration. ’ ’ Section 206 of the Act of February 28, 1920, authorized the appointment of an “Agent” in lieu of the “Director General. ’ ’ Mr. Hines was appointed to the position. The act expressly provides that actions pending shall not abate by reason of the termination of Federal control, “but may be prosecuted to final judgment,' substituting the agent designated by the President under subdivision (a).” Respondent’s objections to the motion are the same as those already discussed in Paragraph III, supra. The motion is sustained and the substitution prayed is made.

The order granting the new trial is reversed and the cause is remanded with directions to reinstate the verdict and enter judgment thereon against the' substituted defendant.

All concur except Woodson, J., absent.