author: FARIS, P. J.

text:
    DOMENICO GINNOCCHIO, Administrator of Estate of PCO. PAOLO FINAZZO, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY.
    Division Two,
    March 30, 1915.
    ACTION: After Final Judgment on Merits. Where plaintiff sued a railroad company for damages and recovered judgment for $5000 and that judgment on appeal to the Court of Appeals was reversed outright, he cannot maintain another action for damages for the identical tort upon the identical facts involved in the cause at the first trial. And it is doubted that differences in the facts of the first action and the facts in the second, even though alleged, would serve to alter the rule.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      Joseph Wheless for appellant.
    (1) This case proceeds under the wrongful death statute of Illinois, and the reciprocal duties of defendant and the deceased touching the right of recovery is to be considered and determined under the adjudicated law of the State of Illinois — when it is made to appear in the case what the adjudicated law of the foreign State is. Ginnocchio v. Railroad, 155 Mo. App. 163; Fogarty v. Transfer Co., 180 Mo. 502. (2) In circumstances similar to those pleaded in this case, the adjudicated law of Illinois holds that the questions of negligence and contributory negligence are “not a question of law to be determined by the court, but one of fact to be ascertained by the jury.” Railroad v. Haskins, 115 111. 300; Railroad v. O’Connor, 115 111. 254; Railroad v. Otstott, 212 111. 429; Railroad v. Egg-man, 161 111. 155; Railroad v. Kane, 70 111. App. 676. (3) Where on the trial material evidence is not adduced, the case may be reversed and remanded for new trial so that such evidence may be supplied. Strottman v. Railroad, 228 Mo. 187; Finnegan v. Railroad, 244 Mo. 663. (4) New facts pleaded remove bar of reversal. Except for the obiter remarks of the court on page 187 in the Strottman case, the several cases cited below indicate that if new facts are pleaded, the reversal of the former judgment does not operate as a bar to a new suit within a year. Strottman v. Railroad, 228 Mo. 187; Abbott v. Railroad, 232 Mo.-617; Schmelzer v. Furniture Co., 252 Mo. 16. (5) The mandate of the St. Louis Court of Appeals, in reversing the judgment in favor of plaintiff, ordered and adjudged that said judgment be reversed, annulled and for naught held. A vacated and annulled judgment is no judgment at all, and cannot be a bar to another suit. In the case at bar the former judgment was reversed for the reasons above stated- — which did not affect the merits of the cause of action under the laws of Illinois, as presented in the case at bar.

      Watts, Gentry <& Lee for respondent; John G. Brennan of counsel.
    From what has been said in appellant’s brief, the conclusion that the judgment of the lower court in this case must be affirmed seems inevitable. It appears from a consideration of the opinion of the St. Louis Court of Appeals in the case of Ginnocchio v. Railroad, T55 Mo. App. 163, that the suit there determined was one by this same administrator to recover damages for the death of one Finazzo, a section hand employed by the defendant company in the State of Illinois in its switching yards. It also appears from that same opinion that the Illinois statute giving a right of action for death was both pleaded and proven by the plaintiff in that case. The judgment of the Court of Appeals in that case was one of reversal. The' cause was not remanded to the circuit court. It was contended in the Court of Appeals, as appears from the opinion, that the case should be decided according to the adjudicated cases in the State of Illinois, and particularly according to the views expressed by the Supreme and appellate -courts of that State concerning the reciprocal rights and duties of section men and railroads. Thus, it appears from the opinion that plaintiff’s counsel claimed to know, when that case was submitted to the Court of Appeals, what the Illinois law was, and that it was different from the Missouri decisions, and urged the application of the Illinois rule. The Court of Appeals declined to follow the decisions of the courts of Illinois cited by appellant’s counsel, which are the very cases relied upon in his petition in the case at bar and cited in appellant’s brief in this court, because said decisions were not pleaded and proven. The decision of the St. Louis Court of Appeals is a final bar to plaintiff’s right to recover in this present case. Precisely the same reason for applying the rule of res adjudicata is found in this case as in the case of Strottman v. Railroad, 228 Mo. 154. The cause of action sued on is precisely the same in the instant case as it was in the case decided by our Court of Appeals.
   FARIS, P. J.

Action by plaintiff in his representative capacity as administrator, for the death of his decedent. The history of the case runs thus: Plaintiff, as the administrator of Francisco Paolo Finazzo, sued defendant for the alleged negligent killing of decedent and had judgment in the circuit court of the city of St. Louis. Defendant appealed to the St. Louis Court of Appeals, wherein the judgment of the circuit court was reversed outright. [Ginnocchio, Admr., v. Illinois Central Railroad Co., 155 Mo. App. 163.] Thereafter plaintiff brought this action, which is the second suit for the identical injury growing out of the identical cause of action set out in the first suit. Plaintiff, among other things set out in his petition herein, pleaded in the instant action this:

“And plaintiff avers that heretofore, on the 16th day of January, 1908, and within one year after the cause of action herein stated accrued, he filed his suit as administrator of the deceased Finazzo against the defendant corporation in this court, and upon the trial of the said action on the 26th day of February, 1909, the plaintiff duly recovered a verdict and judgment against the defendant corporation in the sum of $5000; that defendant in due course appealed from the said judgment to the St. Louis Court of Appeals, and the said Court of Appeals, on the 7th day of February, 1911, reversed the said judgment; for which reason the plaintiff now and within one year after the said judgment of reversal files this, his other suit, as permitted in the statute in such case made and provided.”

Because of the above allegation, since it thereby appeared that this was a second action upon the same facts following an outright reversal, the trial court, sustained a demurrer to the petition of plaintiff and he appealed.

OPINION.

There is but one single question in the case, that is: May a second action be brought for the identical tort upon the identical facts involved in a cause, which cause was heard by an appellate court and by that court reversed Outright?

This precise point was up in this court in the case of Strottman v. Railroad, 228 Mo. 154, and there ruled in such wise as to be absolutely adverse to the contentions of appellant here. Appellant, who was plaintiff below, urges with much of ability and some fervency however, that there is a distinction to be drawn between the case at bar and the Strottman case. We have carefully esamined the record before us, the cases cited to us and the position of learned counsel, and are not able to appreciate this distinction; no more was the learned trial judge whose memorandum upon the point in issue is pertinent and persuasive, even though it does not conclude us. The learned trial court touching this alleged distinction, said: “The court is unable to see any difference in principle between this case and the case of Strottman v. Railroad, 228 Mo. 154. Demurrer will therefore have to be sustained.”

In the Strottman case, supra, at page 186, it was said:

“By statute, we are authorized to enter judgments of simple reversal, and these judgments may or may not be finalities. If the merits of the cases are adjudicated and passed upon they are final, but if not,they are not necessarily so.

“So that considering the whole statute we are of opinion that a reasonable construction thereof precludes the plaintiff from again suing after a judgment of reversal in a case wherein the merits of the controversy have been investigated and adjudicated by the court, and this fact is one of easy determination.

“In the case at bar, it is not claimed that the plaintiff is relying upon any new facts, hut is relying upon the same facts adjudicated in the former case.

“But if she had new facts, she has lost her opportunity. She might have asked for a modification of the judgment, as such has been permitted in some instances. Thus in Rutledge v. Railroad, 123 Mo. l. c. 140, this court thus spoke in an opinion on a motion to modify a judgment of reversal: ‘On motion to modify the judgment, it has been suggested that plaintiff may have a cause of action upon further proof that the signal on which the engineer acted, originated with the •yardmaster. Plaintiff hence prays that the judgment he modified so as to remand the cause; and thus give him an opportunity to amend, and present that phase of the case to the trial court, the Statute of Limitations having intervened as against any new action he might bring. On consideration of this motion we are of opinion that it should he granted. [Bowen v. Railroad, 118 Mo. 541; Lilly v. Tobbein, 103 Mo. 477.] Accordingly the final judgment of this court will he that the judgment of the circuit court be reversed and the cause remanded.’

“It would appear that both plaintiff and the court in that case understood that the judgment of reversal was a finality, and unless modified no further action could he taken by plaintiff. Other cases' of like tenor might he cited.”

To break the force of the above excerpt plaintiff’s learned counsel says that the facts of the case under review considered, the above quotation is obiter tpure and simple. Be that as may he, we think it states the law correctly. At least it states that as law which bench and bar with practical unanimity have considered to be the law in this State for almost a hundred years. The same question was again before this court in the case of Abbott v. Railroad, 232 Mo. 616, and we there refused to reconsider the views held in the Strottman case. We are thoroughly convinced that the rule announced is a salutary one. There are maxims extant which substantially remind ns that no man ought to be twice vexed with the same action, and that it is obligatory that finally an end be made to a law suit. The rule so ably and vehemently urged upon us by learned counsel would violate both the spirit and the letter of these maxims and make of an action at law a case of “linked sweetness long-drawn out;” it would enable litigants to break their law suits into convenient sections and administer them to the courts in broken doses, if we may borrow an expression from the nomenclature of another learned profession.

This identical matter has been so recently examined here and discussed so exhaustively, in the Strottman case, that it would serve no useful purpose in jurisprudence to cumber the books with a further discussion of it. In pássing we may say that it is unfortunate, may-hap, that alleged differences between the facts of the first action and the facts of this, though averred, have not been properly shown to exist. We may take leave to doubt, however, whether even such a difference would serve or ought to serve to change the rule announced.

We conclude that the view taken by the learned trial court was correct, and that the judgment thereof should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    LACLEDE LAND AND IMPROVEMENT COMPANY, Appellant, v. HENRY MURPHY et al.
    Division Two,
    March 30, 1915.
    1. DEEDS: Identity of Parties: Shown by Parol. The identity of a person named in a deed may he shown by parol evidence.
    2. -: -: -: Suit to Quiet Title. In a suit to quiet title, where the plaintiff claimed under a tax deed in a proceeding against Isaac D. Critton, the record owner under a deed from Aaron Casad, and the defendants claimed as the heirs of Isaac D. Chritton and asserted that their ancestor was the grantee in the deed mentioned and had died before the tax proceeding was instituted, the evidence is held sufficient to support a finding for the defendants, on the ground that Isaac D. Chritton, ancestor, and Isaac D. Critton, grantee, was one and the same person.
    Appeal from Reynolds Circuit Court. — Hon. E. M. D earing, Judge.
    Affirmed.

      J. B. Daniel for appellant.
    (1) There is no evidence in this case which would warrant a finding that respondents are heirs of Isaac D. Critton or that they or their ancestor ever had any interest in the lands in litigation. (2) Upon the whole record, the law and the evidence, the judgment of the trial court was for the wrong party, and should he hy this court reversed. (3) The sheriff’s deeds offered in evidence hy appellant were prima-facia evidence of title, and they were not overcome hy the evidence offered herein. R. S. 1909', sec. 1105.
    J. C. Milton and Munger & Wise for respondents.
    (1) It is well settled law that Isaac D. Critton would be identical with Isaac D. Chritton. Scarry v. Lumber Co., 233’ Mo. 686 -, Meyer v. Brock, 222 Mo. 102. (2) Upon tbe whole record, the law and the evidence, the judgment of the trial court was for the right party, and his decision should be affirmed. (3) While the sheriff’s deed offered in evidence by appellant is, under the statute, prima-facie evidence of title, we maintain that the prima-facie case was overcome by abundance of competent testimony proving that Isaac D. Chritton was the owner of the land at the time of his death in 1868, and that his heirs and legal repre- ■ sentatives, not having been sued, remained vested with the title.
   WILLIAMS, C.

This suit was instituted in the circuit court of Reynolds county, Missouri, to' determine the title to the east half of the northwest quarter and the southwest quarter of section 17, township 29, range 2, east, in Reynolds county, Missouri. Isaac D. Critton is the common source of title.

In 1886 the land was sold for taxes under a judgment against Isaac D. Critton and others. A tax deed was duly executed and,' by mesne conveyances, whatever title the grantee in the tax deed acquired was conveyed to the plaintiff herein. The respondents who appeared and filed answer in the trial court claim to be the owners of said land as the sole and only surviving heirs of Isaac D. Chritton, who they contend is the same person as Isaac D. Critton; that he was dead at the time the tax proceeding's were instituted and that therefore the tax deed did not pass any title.

Plaintiff introduced in evidence the tax deed and the other mesne conveyances showing that whatever title passed at said tax sale was conveyed to the plaintiff herein. Defendants offered in evidence the plat book of Reynolds county, showing that this land was patented to one' Robert E. Bryant; also the record of deed whereby said Robert E. Bryant and wife, of Montgomery county, Indiana, conveyed said land to one Aaron Casad, of Tippecanoe county, Indiana, dated January 2,1861; also record of deed from Aaron Casad and wife, of “Taippecanoe” county, Indiana, to Isaac I). Critton, of Montgomery county, Indiana. This deed was dated February 27, 1861, and the public record of the deed shows that it was first filed for record October 27, 1866, and refiled for record on August 13, 1872.

A; L. Chritton testified for defendants that, since 1891, he had lived in Wichita, Kansas, but had formerly lived in Waynetown, Indiana; that he was a son of Isaac D. Chritton, who, at one time, lived in Wayne-town, Indiana; that his father died in 1868, then being a resident of Fountain county, Indiana; that his father “owned lands in Reynolds county, Missouri; it was the southwest quarter of section 17, in the east half of the northwest quarter of section 17, township 29, range 2, east, Reynolds county, Missouri, in all 240 acres;” that his father purchased the land from Aaron Casad in 1866. That his father sent the deed to Reynolds county for record and word came back that the deed was burned. Witness testified that the names of the heirs of Isaac D. Chritton and their places of residence are as follows: Elizabeth Chenoweth, Boswell, Indiana; A. L. Chritton, Wichita, Kansas; Amanda Stancer, Wichita, Kansas; Martha Warfield, Wichita, Kansas; J ohn W. Chritton, Mutual, Oklahoma; Catherine Salisbury, Wichita, Kansas; Emma Crosby, Waketa, Oklahoma; Grace Lee, Kerwin, Kansas. The witness stated that none of the heirs of Isaac D. Chritton, deceased, ever had possession of the deeds or title paper to the land in question; that his father died about 18 months after the purchase of the land, and that the matter was turned over to the administrator of the estate but that the administrator failed to find any record of the land in question. In 1910 the witness received the information that the records in Reynolds county showed that his father had never conveyed the 240 acres of land. The witness then made a trip to Reynolds county and placed the matter in the hands of an attorney for investigation.

Martha E. Warfield testified that she was 62 years old and that Isaac D. Chritton, her father, died on April 3, 1868, in Fountain county, Indiana. That her father owned land in Reynolds county, Missouri, and sent the deed there for record and received word from the recorder that the deed had been destroyed by fire; that her father died 18 months after he received that word; that her father wrote several letters about the 'matter and after his death “we” continued to investigate and later the administrator informed “us” that he was unable to find a record in Reynolds county showing title in Isaac D. Chritton.

The deposition of J. W. Chritton was read in evidence, wherein the witness states that he is 66 years old and lived at Mutual, Oklahoma; that his father’s name was Isaac D. Chritton and that his father resided in Montgomery county, Indiana, in 1866, and that the post-office address was Waynetown, Montgomery county, Indiana, in 1859, and from 1859' to 1866 he resided part of the time in Montgomery county and part of the time in Fountain county. Witness lived with his father to the time of his father’s death, which occurred in 1868. That his father bought some land in Reynolds county, Missouri, in 1866, and that he had heard his father talk about it but that was all he remembered about it. He had heard his father say that 40 acres of the land was good farming land; that his father got the land from a man by the name of Aaron C. Casad.

The deposition of Lovina C. Salisbury was read in evidence, in which she testifies that she is 62. years old and lives in Wichita ,Kansas; that she resided with her father, Isaac D. Chritton, at the time of his death, and that her father bought some land in Reynolds county, Missouri, from Casad and sent the deed for record and received word back that the deed had been burned. The witness saw some mineral which her father brought back from the land and heard her father say that there was a fine spring on the land and that he intended to make his home there. This was in 1866.

The deposition of Amanda Stancer was read, wherein she testified that she was 66 years of age and that she was the daughter of Isaac D. Chritton; that her father resided in Fountain county, Indiana, in 1864, at the time the witness was married, and that her father later moved to Waynetown, Montgomery county, Indiana. The witness produced and identified a letter dated June 10, 1866, which she said her father had written her at the time he lived in Waynetown, Indiana. The letter was signed “I. D. Chritton.”

A. L. Chritton being recalled by defendants testified that his father, Isaac D. Chritton, resided in Montgomery county, Indiana, in 1851, and moved first to Franklin county, Indiana, and later to Illinois, and then, in 1855, moved back to Waynetown, Montgomery county, Indiana, and lived there until 1867, when he again moved to Fountain county, Indiana; that the place in Fountain county to which he moved was about eight miles from where he had lived in Montgomery county. The witness was working at his father’s home in Montgomery county, Indiana, in 1866; that a man by the name of Isaac C. Durham showed his father the land in Reynolds county, Missouri, and that his father came back home and closed the deal and sent the deed to be recorded and word came back that the deed was destroyed by fire. Upon cross-examination the witness further testified: “I don’t know exactly when it was that word came back that the deed had been burned up, but it was some time in August, some time during the summer of 1866. We never forgot about the land, .but we were all poor and had all we could do to make a living. We did not do anything about this land, we couldn’t do anything for we didn’t have anything to do with.” He further testified that the administrator was five years settling up the estate and that the administrator said that he could not find any trace of the land.

In rebuttal, Mr. J. S. Carty testified, for the plaintiff, that the Reynolds county courthouse was destroyed by fire in 1872 and that none of the deed records were saved from the fire. The witness was there when the fire occurred. Plaintiff introduced in evidence another deed which recited that the deed records were destroyed by fire on the 1th day o'f July, 1867, and on the 21th day of November, 1871.

Trial was had before the circuit court, without a jury, resulting in a judgment decreeing that the above-named heirs of Isaac D. Chritton were the owners of said land and that the plaintiff and the defendants other than those filing answer in the cause had no title or interest in the land. Thereupon plaintiff duly perfected an appeal to this court.

The only question presented upon this appeal is one of identity. Was Isaac D. Chritton, deceased ancestor of respondents, the same person as Isaac D. Critton, the grantee in the deed executed by Aaron Casad, dated February 27, 1861, and first recorded on October 27, 1866? If the said ancestor was the same person as the above-mentioned grantee the judgment should be affirmed, if otherwise the judgment should be reversed.

The identity of a person named in a deed may be shown by parol evidence. [Skinker v. Haagsma, 99 Mo. 208, l. c. 212.]

Tbe evidence is fully set forth, in the foregoing statement and a further review here is unnecessary. While some slight inconsistences appear in the evidence, yet, when considered as a whole, the evidence produced was undoubtedly sufficient to justify the court in finding the fact to be that Isaac D. Chritton, ancestor, and Isaac D. Critton, grantee, was one and the same person.

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM. — -The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


text:
    CHARLEY VAHLDICK v. FREDERICK VAHLDICK et al.; J. O. PATTERSON and HERMAN VAHLDICK, Intervening Defendants, Appellants.
    Division Two,
    March 30, 1915.
    1. APPEAL: No Assignment of Errors. Where appellant’s brief contains no assignment of errors and no point suggesting specific error, the appeal will, upon motion of respondent, be dismissed - — dismissal, where the judgment is for plaintiff, seeming to be a shade the better practice than affirmance.
    2. -: -; Points in Lieu. Although appellant in his brief makes no formal collective assignment of errors, if he separately assigns error specifically in distinct subheads of points and authorities, this will be accepted on appeal as a substantial compliance with the statute requiring assignments. But where there are neither assignments nor points, and all that appears in the brief are the words following the statement that “the court found against the intervenors and this is the only error assigned by appellants,” there is no such compliance with the rules and statute as permits a review of the rulings of the trial court leading up to a judgment on the merits.

      Appeal from Greene Circuit Court. — Hon. T. J. Murray, Special Judge.
    Appeal dismissed.

      J. 0. Patterson and Neville & Gorm-an for appellants.

      H. D. Durst and John SchmooTc for respondents.
   FARIS, P. J.

Plaintiff brought suit to partition forty acres of land in Greene county. Intervenors below, who are appellants here, were, upon their own motion, made parties. Judgment went below for plaintiff pursuant to the prayer of his petition — we assume, since plaintiff and defendants do not appeal — and against intervenors who do appeal. The land in dispute was owned in his lifetime by one Andreas Vahldick, who died intestate in Greene county on the 16th day of February, 1907. Said Andreas left surviving him a widow, but no children by him begotten. The widow elected to take one-half of the forty acres of land, leaving but twenty acres in dispute here.

The intervening petition of appellant, Herman Vahldick, is based upon the claim that about the year 1884 or 1885 said Andreas Vahldick, being childless, entered into an agreement with one Dressell, who was the adopted father of appellant Herman Vahldick, for the benefit and behoof of the latter, by which agreement the said Andreas undertook and promised to adopt said appellant as the child and heir of him, said Andreas. Mutual fulfillment of the parental duties of care and custody, support and maintenance upon the side of him the said Andreas, and of the full performance of filial duties upon the side of appellant Herman are averred, and the prayer is that the court decree specific performance of the contract to adopt, and that thereupon, appellant Herman and his coappellant, to whom said Herman conveyed a moiety for, or to better secure, a fee, have partition of said land, in lieu of defendants, who, as is also plaintiff, áre the collateral kin of him, said Andreas. Plaintiff Charley Yahldick purchased the half interest of the widow, and claims, in addition to that half, a full share of the remaining twenty acres as one of the brothers of the deceased Andreas, the ancestor.

After being permitted to become intervenors, appellants filed an answer, which in effect and legal substance set out the facts as above and prayed affirmative relief as in their intervening petition already mentioned. In addition, they affirmatively prayed a divestiture of title out of both plaintiff and defendants of one-half of the said land, and a vesting of same in the said intervenors.

The trial court, as stated above, found for plaintiff and against appellants, dismissing their petition and for costs.

Upon the very threshold of the case we are met by a motion to dismiss the appeal for the reason that appellants have failed and neglected to comPf7 with the statute (Secs. 2080 and 3941, R. S. 1909) and with our rules (Rules 15 and 16) in the making of their brief. Specifically the1 contention is that there is no assignment or pointing out of errors. This motion of respondent was timely filed and upon the hearing and argument was taken with the case, to be ruled by us when we came to write the opinion herein.

Going to the brief of appellants to find whether the objection of respondent be well taken, we find neither an assignment of errors nor any point made or set out therein suggesting any specific error. About the place where we should usually expect to find errors assigned, a typewritten sticker advises us that “the court found against the intervenors and this is the only error assigned by appellants.” In short the assignment of errors is: “The court found against intervenors,” which action of the court appellants assign as error. This, it is obvious, tells us nothing which we had not already surmised. It has been held that where appellant though making no formal collective assignment of errors in any given part of his brief, yet separately assigns error specifically in distinct subheads of his points and authorities, we will accept this as a substantial compliance with the statute and our rules. [Perry v. Strawbridge, 109 Mo. 621; Mugan v. Wheeler, 241 Mo. 376; Collier v. Lead Co., 208 Mo. 246.] But" nothing of this sort is done here. We set out above the whole sum and substance of' appellants’ efforts to charge error upon the trial court. We do not think this assignment complies with the law, or with our rules, and the motion of respondent ought to be sustained and the appeal dismissed, or such other action taken as the law and our rules allow.

Where no error is pointed out to us we are permitted to presume that no error exists. [Adler & Sons Clo. Co. v. Corl, 155 Mo. l. c. 156; Hamilton v. Crowe, 175 Mo. 634.]

In the Adler case supra, át page 156, it was said: “There was a trial of the cause on its merits, and a finding and judgment for the plaintiff, and although the defendant’s appeal seems to cover the whole case, yet in his brief the appellant’s counsel suggests no error in that branch of the case, and as he has pointed out none, we will presume there is none.

We might, it is true, take a running broad guess that the gravamen of appellants’ complaint is based upon some such view as that the court disregarded the evidence in the instant case, or that he erroneously applied the law to. the evidence, or that he found the evidence was insufficient to make out a case for intervenors, when in truth it was amply sufficient. But we •can by no means be sure of this. For it might have been dne to some matter of jurisdiction, or defect in the intervenors’ petition, or conviction in the mind of the learned trial judge that such practice as obtained here is not permissible in a plain partition suit. All these things are mere idle guessing, but they are all, ;as are many other possible errors, within the range of probability. We have held both pointedly, and by the very strongest analogy, that we will not wade through -a voluminous record for error when none is pointed out to us. [Hughes v. Winkelman, 243 Mo. 81; Bank v. Hutton, 224 Mo. l. c. 53; State v. Boehm, 184 Mo. l. c. 209; Sullivan v. Holbrook, 211 Mo. 99.] This is likewise the rule in other jurisdictions. [2 Cyc. 1014, and cases cited.]

We are authorized by our rules (Rule 16 )to dismiss the appeal under the conditions here confronting us. In a case on all-fours with this (Sullivan v. Holbrook, supra) the judgment was affirmed. But the logic of the situation seems to make a dismissal of the •appeal a shade the better practice. [Murch v. Nowlin, 178 Mo. App. 492; Snyder v. Free, 102 Mo. 325.] Accordingly we dismiss the appeal.

All concur.


author: GRAVES, P. J. WOODSON, 0. J.

text:
    MARION LEMP, A Minor, by IRENE VERDIN LANGAN, her Curatrix, Appellant, v. WILLIAM J. LEMP et al.
    Division One,
    April 1, 1915.
    1. WILL: Precatory Trust: Will or Wish? Precatory words in a will, that is, words of expectation, hope, desire, recommendation, etc., owing' to their context or the use of different kinds of words in other parts of the will, have been given different meanings by the courts, and even hy the same court. Whether or not they are imperative and create a trust, or are a mere expression of a wish, must he determined from an examination of the whole will and an ascertainment of testator’s intention. In every case the question arising from the use of such words as “wish” or “desire” or “recommend” or “entreat” or similar words is whether they express merely the testator’s wish or express his will. A trust is created if it clearly appears that the words were used in an imperative sense; hut not otherwise. The intent of the testator is the thing to he ascertained, and in doing that the ordinary and usual rules of law applicable to the construction of wills are to be observed.
    2. -: -: Absolute Estate; Cut Down By Succeeding Words. Where the will, after providing for the payment of testator’s debts, said: “I give, bequeath and devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situated or by whatsoever title held, absolutely,” he created an absolute estate in his wife, in plain and unequivocal language, and a subsequent equivocal and indefinite clause did not cut down or modify that estate; and a subsequent clause, reading: “I make no gift here to my children . . . and I make no gift here to my grandchild . . . having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them,” even if admitted to express an intent to create a precatory trust, did not unequivocally do so, and was not as affirmatively strong as the preceding clause creating in the wife an absolute estate, and did not therefore convert that estate into such a trust.
    3. --: -: Intent: Gift: Trustee’s Fees In Lieu of Bequest. A trust estate is the subject of a gift; and where the testator gave all his property “absolutely” to his wife, and then added: “I make no gift here to my children” (naming them) “and I make no gift here to my grandchild” (naming the only child of a deceased son), “having perfect confidence that my wife will without any request on my part, and none such is here made,, do best for them,” he expressly excluded the idea of making a gift, by the will, to either children or grandchild; and that he-did not intend the property devised to be held by the wife in trust for them is evident, not only from that fact; but from the-fact that, if the will created a trust at all, it created one for his entire property and for all his children and grandchild and left the wife without anything whatever, and from the further fact that he expressed absolute confidence in her to dispose of the property justly and wisely. Nor does the fact that from her fees as trustee of the immense estate his wife would have a very large income, justify a holding that his intention was to-deprive her of otherwise sharing in a property which had been built up by their joint labors; for such compensation (Woodson, C. J., in a separate opinion) is in no sense a bequest under a will.

      L -: -: Violation By Trustee. If the will gave all testator’s property absolutely to his wife, she had the right to. dispose of it as seemed proper to her, and that issue having been determined in the affirmative what disposition she made of it is of no concern.
    Appeal from St. Louis City Circuit Court. — No». George C. Hitchcock, Judge.
    Affirmed.

      Judson, Green S Henry, Campbell Allison and William A. Gardner for appellant.
    (1) The words in the third clause of the will of William J. Lemp are sufficient to create a trust in favor of the children and the grandchild therein mentioned. Murphy v. Carlin, 113 Mo. 112; Noe v. Kern, 93 Mo. 367; Bakert v. Bakert, 86 Mo. App. 83; Schmucker’s Estate v. Reel, 61 Mo. 596; Colton v. Colton, 127 U. S. 300; Bohon v. Barrett, 79 Ky. 383; Warner v. Bates, 98 Mass. 278; Knox v. Knox, '59 Wis. 172; Jarman on Wills, p. 680. As between husband and wife, in order to create a trust in favor of their children, language need not be so strong or so explicit as would be necessary between strangers. Noe v. Kern, 93 Mo. 367; Murphy v. Carlin, 113 Mo. 112; Warner v. Bates, 98 Mass. 280. (2) Every clause of the will must be given effect, if possible, and to this end, if need be, words may be supplied or omitted and sentences transposed. Cox v. Jones, 229 Mo. 62; Small v. Field, 102 Mo. 104. (a) The word “gift” means “gift of my property.” (b) The word “here” is superfluous and without meaning, unless used in apposition to making the gift of my property in a different manner — through their mother. (c) “ Having perfect confidence ’ ’ means “because I have perfect confidence.” (d) “None such is hereby made ’ ’ means ‘ ‘ no request to do it is hereby made, because I know she will do it without any request on my part. ” (e) “ That my wife will do ’ ’ means “that my wife will do ([it] understood),” and referring to its antecedent, the word gift, it becomes clear that this means, make a gift of my property to my children, (f) “Best for them” means “in a manner best for them.”. The words “faith,” “confidence” and “reliance” are peculiarly apt and forceful in creating trusts, if used in the connection in which the words “perfect confidence” are found in this will. Noe v. Kern, 93 Mo. 367; Warner v. Bates, 98 Mass. 274; Portsmouth v. Shackford, 46 N. H. 423; Cockrill v. Armstrong, 31 Ark. 580; Bull v. Bull, 8 Conn. 47; Plarrison v, Harrison, 2 Gratt. 1, 44 Am. Dec. 365; Blanchard v. Chapman, 22 111. App. 341. (3) William J. Lemp clearly explains that his “perfect confidence” that his wife will give the property to his children in such manner as will be best for them, is the only 'reason he does not give it to them “here.” He also clearly explains that the reason he does not ask his wife to do it here, is because she will do it “without any request on my part.” The testator having, himself, fully explained that he did not give directly and did not request his wife to. give, only because he knew his children would get it from his wife without a request, 'the court cannot presume that he did not give directly or ask his wife to give because he wanted to disinherit his children. Expressio unius exclusio alterkis. Murphy v. Carlin, 113 Mo. 120'; Small v. Field, 102 Mo. 129; Reinders v. Koppelman, 94 Mo. 343. (4) “The prevailing doctrine is that no particular form of expression is required in order to create a binding and valid trust. Words of recommendation, request, entreaty, wish, or expectation will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty, both the subject-matter and the object of the trust.” Schmucker’s Estate v. Reel, 61 Mo. 596; Noe v. Kern, 93 Mo. 370'; Murphy v. Carlin, 113 Mo. 112; 1 Jarman on Wills, 680'. Such words as “request,” “entreat,” “wish,” “expect” or “hope” of themselves imply the possibility that the donee will do otherwise, and are not of them-. selves necessarily imperative. On the contrary, snch words as “having perfect confidence,” “full faith,” “perfect reliance,” etc., import the absence of the possibility in the mind of the testator that the donee will do otherwise, and are of themselves imperative,. and when addressed by one sponse to 'the other, respecting their natural children, and especially when made a reason for the gift, are mandatory. (5) If the donor-had “perfect confidence” his wife would do it, it was. his will that she should do it. It was mandatory. In considering this question it is to be remembered that the devisee is the wife of the testator, between whom it is not expected that commands should be expressed in -such forcible language as between strangers. Murphy v. Carlin, 112 Mo. 119; Noe v. Kern, 93 Mo. 373;, Knox v. Knox, 59 Wis. 172; Erickson v. Wittard, 1 N. H. 217; 1 Jarman on Wills, 680. (6) The devise or gift of an absolute estate to Julia Lemp in the second clause is controlled and limited by the precatory words in the third clause which immediately follow, and Julia Lemp is thereby .made a trustee of said estate for the benefit of the seven children and the grandchild, with the right to use, during her lifetime, 'such part of the income for her own support as may be necessary. Noe v. Kern, 93 Mo. 372; Murphy v. Carlin, 113 Mo. 112;, Gibson v. Gibson, 239 Mo. 506. The absence of the words “heirs and assigns forever,” in the granting-clause of the will, leaves the character of the estate, devised to be determined from the subsequent language. R. S. 1909, sec. 579. The character of the estate-devised to Julia Lemp in the granting clause of the will in question is therefore clearly controlled and limited by the precatory words in the third clause, which immediately follow, and she is thereby made a trustee of said estate for the benefit of the seven children and the grandchild, with the right to use during her lifetime, such part of the income for her own enjoyment as may be necessary. Noe v. Kern, 93 Mo. 367; Mnrpby v. Carlin, 113 Mo. 112. (7) While discretion in the donee to .give or not to give will usually defeat the trust, a discretion as to the manner of giving, will not. Murphy v. Carlin, 112 Mo.' 113; Noe v. Kern, 93 Mo. 367; -Colton v. Colton, 127 U. S. 300; Erickson v. Wittard, 1 N. H. 230. While Julia Lemp is given, by the language of the third clause, full discretion as to the manner of giving this property to the children and the grandchild mentioned, and as to the time of giving it, and as to the character of restrictions to be placed upon its use-or enjoyment by them, or any of them, yet no discretion is given her to withhold at her caprice the entire share of any one child or grandchild therein mentioned. Noe v. Kern, 93 Mo. 367; Colton v. Colton, 127 U. S. 300; Murphy v. Carlin, 113 Mo. 112; Warner v. Bates, 98 Mass. 278. (8) If the wife had the legal right to disinherit her granddaughter she also had the right to disinherit the other children. If she had this right her husband must have intended to disinherit all his children by his will. But the law presumes the testator intended to provide for his children, unless the contrary clearly appears. Noe v. Kern, 93 Mo. 373; 1 Beach on Trusts, sec. 69, p. 123; Lins v. Lon-hart, 127 Mo. 281; Gay v. Gillilan, 92 Mo. 264. (9) Clearly there is sufficient certainty in the objects of this trust, because the seven children and the grandchild are therein expressly named and were intended to share said estate equally upon the death of Julia Lemp. There is also sufficient certainty in the subject of said trust, for it is clear that it was intended to include the entire estate of the testator. Harrison v. Harrison, 2 G-ratt. 1, 44 Am. Dec. 365; Warner v. Bates, 98 Mass. 278. (10) That Mrs. Julia Lemp herself clearly understood that she, in making her last will, was merely carrying into effect the will of her deceased husband, and recognized that the children were taking the property from him and not from her is indicated "by the fact that in the second clause she provides that her executors must deduct from the share of each child the advancements made to them respectively by William J. Lemp in his lifetime; and also by the fact that she did not attempt to divert any part thereof to any charitable purpose or to make any gifts to servants or to any other person except the seven children; and she attempts to excuse herself for failing to comply with his wishes respecting this appellant, Marion Lemp, by falsely claiming that she had provided for her during her lifetime. And by the further fact that, in the exercise of the discretion given her she gave three of the children their shares outright and as to four of them restricted their enjoyment by trusteeships and otherwise as she deemed best for them, just as her husband had told her to do.

      Charles F. Krone, Schnurmacher $ Rassieur and Fckvard C. Crow for respondents.
    (1) The will must be construed according to the intent of the testator, unless that intent runs counter to an inflexible rule of law or of public policy. “When the intent of its maker is discovered, the will is solved. ’ ’ Burnet v. Burnet, 244 Mo. 497. (2) The will of William J. Lemp in clearest terms gives his wife an absolute estate. It is now sought to convert this into a life ■estate to the widow, with remainder in trust to children and grandchild, by the alleged precatory words succeeding the devise and bequest in fee. Without questioning the power of a testator to cut down or diminish a devise by subsequent clauses, in language as clear and unequivocal as that creating the gift, yet “it might truthfully be said that it is a settled rule of property in this State, that when the words of a will, at the beginning, clearly shows that it was the intention of the testator to devise the entire estate absolutely to the first donee, then that estate will not be cut down to a less estate, by subsequent ambiguous words found therein.” Cornet v. Cornet, 248 Mo. 224; Sevier v. "Woodson, 205 Mo. 214; Gibson v. Gibson, 239 Mo. 506. On the contrary, when a mere life estate is granted or an estate in general terms, not sufficient to create a fee, the estate in remainder will not be cut down, lessened or defeated, because added to the first estate is a power of disposition. The defeat of the remainder will be accomplished only by the exercise of the superaclded power of disposition. Burnet v. Bur-net, 244 Mo. 491; Lawless v. Kerns, 242 Mo. 392; Tisdale v. Prather, 210 Mo. 402. “And where an absolute estate or interest is in terms given (as here), precatory words which follow, are usually treated as expressions of wish, rather than of will, so that no trust is created.” 40 Cyc. 1737; 22 Am. & Eng. Ency. Law, p„ 1170; 25 Eng. Rui. Cas., p. 478. (4) A precatory trust is not to be inferred from mere expressions of hope, confidence or desire on the part of the testator; it must fairly appear from the will that he intended to create a legal duty in the donee and not merely a moral obligation ; and when a testamentary trust is not expressed,., none will be implied. Corby v. Corby, 85 Mo. 371; Playes v. Hayes, 242 Mo. 155; Floyd v. Smith, 59 Fla. ' 485; Sturgis v. Paine, 146 Mass. 354; Rector v. Alcorn,. 88 Miss. 788; Burnes v. Burnes, 70 C. C. A. 357, 137 Fed. 781. (5) And in determining whether expressions in a will are sufficient to create a precatory trust, it is necessary to ascertain from the whole context of the will, and the situation of the testator, whether he intended to impose an imperative obligation on his legatee to carry his wishes into effect; or whether, having expressed his wishes, he intended to leave it to the discretion of the legatee to act on them or not. In the latter case, no trust results. Hayes v. Hayes, 242 Mo. 155; Corby v. Corby, 85 Mo. 371; Snyder v. Toler, 179 Mo. App. 376; Van Duyne v. Yan Duyne, 14 N. J. L. 397; Hess v. Singler, 114 Mass. 56 ; Sears v. Cunningham, 122 Mass. 538; Rose v. Porter, 141 Mass. 309; Sale v. Thornberry, 86 Ky. 266; Post v. Moore, 181 N. Y. 15; Foose v. Whitmore, 82 N. Y. 405; Ellis v. Ellis, 15 Ala. 296; Speairs v. Ligón, 59 Tex. 233; Mitchell v. Mitchell, 143 Ind. 113; Rector v. Alcorn, 88 Miss. 788; Lesesne v. Witte, 5 S. C. 450; Hunt v. Hunt, 11 Nev. 444; Greene v. Greene, 3 Ir. Eq. R. 90 ; Gilbert v. Chapin, 19 Conn. 342; Bnrnes v. Bnrnes, 70 C. C. A. 357, 137 Fed. 795; McDuffie v. Montgomery, 128 Fed. 105; Sale v. Moore, 1 Sim. 534; Bardswell v. Bardswell, 9 Sim. 319; Ellis v. Ellis, 44 L. J. Ch. 225; Macnab v. Whitbread, 17 Beav. 299; Fox v. Fox, 27 Beav. 301; In re Adams and The Kensington Yestry, 24 Ch. Div. 199; Oldfield v. Oldfield, 73 L. J. Ch. 433; Mussourie Bank v. Raynor, 31 W. R. 17; 2 Story’s Eq. Jur., sec. 1070; 1 Perry on Trusts & Trustees (6 Ed.), sec. 114; Underhill’s Law of Trusts & Trustees (7 Ed.), p. 24; Lewin’s Law of Trusts, pp. 156, 157. (6) The absence of explicit direction as to the quantum to be given, or a vagueness in the designation of the proportions which the supposed beneficiaries of the alleged trust are to take, will be construed as a strong indication that the testator did not intend to create a trust. 22 Am. & Eng. Ency. Law, pp. 1167-1168. (7) Where a request is expressly negatived in terms (as here), no trust will be inferred. Bnrnes v. Bnrnes, 70 C. C. A. 357, 137 Fed. 781.
   GRAVES, P. J.

This is an action in equity whereby it is sought to have the court declare a precatory trust. Plaintiff is the only child of Frederick W. Lemp, deceased. William J. Lemp, the father of the said Frederick W. Lemp, died leaving the following will:

“I, William J. Lemp, hereby make, publish and •declare this as and for my last will and testament, hereby revoking all previous wills. I direct the payment of my debts and the closing of administration on my estate as rapidly as the law will permit.

“I give, bequeath aud devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situate or by whatsoever title held, absolutely.

“I make no gift here to my children, Annie L. Konta, William J. Lemp, Louis P. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp, and I make no gift here to my grandchild, Marion Lemp, having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them.

“I hereby appoint William J. Lemp, Jr., Louis P. Lemp and Charles A. Lemp and Edwin A. Lemp or either or any of them that may accept and qualify my executors or executor without bond.

“In witness whereof, I have hereunto set my hand this 1st day of February, 1904.”

Frederick W. Lemp departed this life in 1901, and his father, William J. Lemp, died in February, 1904. In 1906, Julia Lemp, the widow of William J. Lemp, died leaving a will. In that will is found the following clause:

“4. As I have heretofore purchased from Irene Lemp, widow of Frederick W. Lemp, and from Marion Lemp, her minor daughter, acting by her curator, substantially all of the property held and coming to both from my deceased son, and inasmuch as, in consequence of the terms of said purchase, I deem the estate of the mother and child such as to reasonably secure to said Marion Lemp an adequate amount of property as one of my grandchildren, it is my will that neither the said Irene Lemp nor Marion Lemp shall receive any part of my property or of my residuary estate.”

This clause of the Julia Lemp will is no doubt the mainspring of the present action. The petition in the case is quite lengthy and no good purpose would be served in setting it out in full. The crux of the case will be found in tbe following excerpts from tbe petition. Paragraph four of the petition thus reads:

“Your petitioner further states that in and by the-said foregoing last will and testament of the said ’William J. Lemp, deceased, all of the real estate and personal property owned by him at the time of his death was given, devised and bequeathed to. Julia Lemp, who was his wife, in trust, for the purpose of being conveyed or transferred by her, the said Julia Lemp, to the persons therein named, to-wit: Annie L. Konta, William J. Lemp, Jr., Louis F. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp (all of whom are children of said William J. Lemp and said Julia Lemp, his wife), and Marion Lemp, the plaintiff herein (who is the grandchild of the said William J. Lemp, deceased) and the said Julia Lemp, his wife, subject to the right of the said Julia Lemp to use and enjoy the income therefrom or such portions thereof as might be necessary during the natural life of said Julia Lemp. ’ ’

Paragraphs 5 and 6 set out the will and matters material to the will of Julia Lemp. Paragraphs 7 and 8 thus read:

“That the said Julia Lemp, deceased, in and by her foregoing last will and testament pretended to carry out and execute the said trust imposed upon her by the terms and conditions of the said last will and testament of the said William J. Lemp, deceased, and in pretended pursuance thereof, she gave, devised and bequeathed the whole of said property so given, devised and bequeathed to her by the said last will and testament of the said William J. Lemp, deceased, to William Lemp, Jr., Annie L. Konta, Louis Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp, now by marriage to one Wright, Elsie J. Wright, giving and bequeathing to each of' them a one-seventh part thereof, and placing upon the shares so given, devised and bequeathed to Annie L. Konta, Edwin A. Lemp • and Elsie J. Lemp, now Elsie J. ’Wright, such restrictions by way of trusteeship and •otherwise, as in her judgment was best for them; but thereby giving, devising and bequeathing no part or parcel of said property so given and bequeathed to her as aforesaid to this plaintiff, Marion Lemp.

“Plaintiff further represents that in truth the said Julia Lemp, deceased, should have in compliance with the command of the said William J. Lemp, deceased, as expressed in his said last will and testament, divided all of said real estate and personal property so given, devised and ‘bequeathed to her in trust, as aforesaid, into eight equal parts, and should have given, devised and bequeathed a one-eighth part thereof to each of the said persons mentioned in the said last will and testament of the said William J. Lemp, deceased, to-wit: One-eighth part thereof to the said William J. Lemp, Jr., one-eighth part thereof to the said Annie L. Konta, one-eighth part thereof to the said Louis Lemp, one-eighth part thereof to the said Charles A. Lemp, one-eighth part thereof to the said Hilda L. Pabst, one-eighth part thereof to the said Edwin A. Lemp, one-eighth part thereof to the said Elsie J. Lemp, now Elsie J. Wright, a one-eighth part thereof to Marion Lemp, the plaintiff herein, placing upon the shares of each such restrictions 'as in her .judgment would have been best for them.”

The prayer of the petition is as follows:

“Forasmuch therefor as the petitioner is without remedy save in equity, plaintiff prays that it may be adjudged and decreed by this court that all of the real estate and personal property, choses in action and other rights belonging to the said William J. Lemp, deceased, in his lifetime, and which were in the possession or under the control of the said Julia Lemp •at the time of her death, be declared to be in trust for the persons named in the will of the said William •J. Lemp, deceased, including this plaintiff, in equal parts or shares; and that an accounting be had under the directions of this honorable court of all the property left by the said Julia Lemp, deceased, as well as the profits and gains received therefrom, and that said William J. Lemp, Jr., Annie L. Konta, Louis P. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp, Elsie J. Lemp, now Elsie J. Wright, William Lemp and Charles A. Lemp, Louis P. Lemp and Ed win A. Lemp, as executors of the last will and testament of William J. Lemp, deceased, and William J. Lemp, Charles A. Lemp and Edwin A. Lemp as executors of the last will and testament of Julia Lemp, deceased, and the said William J. Lemp and Charles A. Lemp as trustees for Annie L. Konta, and the said William J. Lemp and the said Charles A. Lemp as trustees for Edwin A. Lemp, and the said William J. Lemp and Charles A. Lemp as trustees for Elsie Lemp, now Elsie J. Wright, be declared to convey to the plaintiff a one-eighth part of the real estate and personal property received by them under the last will and testament of the said Julia Lemp, deceased, as well as the one-eighth part of all the profits derived therefrom, and that your petitioner may have such other and further relief as in equity is just.”

I. The use of precatory words in wills has been a source of annoyance to the courts, and, owing to the appearance of extremely harsh eases from time to time, ]ias occasioned some extreme views/ thereby producing a contrariety of opinion to some extent. The same words have been given different meanings in the opinions. To be more explicit, given words in some, wills have been held not to create a trust, and the same words in others have been held to create a trust. Words in one will have been held to be imperative, whilst the same words in another will have been held not to be imperative. These divergences of opinion, however, can be accounted for in a large measure by the use of different hinds of words in other portions of the wills. The doctrine as applied to precatory words in a will is thus aptly expressed in 40 Cyc. 1734 et seq.:

“The question whether precatory words, that is, words of expectation, hope, desire, recommendation, etc., will operate to create a trust is purely one of definition, and where the will itself does not determine the sense in which the testator used them, is one for a lexicographer rather than a judge. If such words are used in their primary sense, it is obvious, or should be, that they can impose no obligation upon the first taker. If, however, the rest of the will shows that the words are really imperative, and that beneath the veil of courtesy there lurks a positive order, then the trust should be effectuated. In the nature of the thing, this is all the so-called ‘ law ’ that this question can involve. But these obvious facts have been overlooked. The courts have been eager to give unnatural and wrongful meanings to words whose significance is commonly well understood, and the result is a hopeless confusion in the decisions, and that utter absence of principle which inevitably follows the abandonment of right principle. However, it is said that, according to the earlier cases, when property is given absolutely to any person, and the same person, is, by the giver, who has power to command, recommended or entreated or wished to dispose of that property in favor of another, the recommendation, entreaty, or wish is held to create a trust, if the words are so used that, upon the whole, they ought to be construed as imperative, and if the subject-matter and the objects of the recommendation be certain. The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator’s intention, to ere-ate an express trust was as full, complete, settled, and sure as though, he had given the property to hold upon a trust declared in the ordinary manner. Applying this rule, it is clear that the same words may have wholly different meanings when read in the light of the context. Thus the expression of a ‘wish’ may or may not create a trust; and so with ‘desire,’ and similar words. The question in every case is whether they express merely the testator’s wish, or whether they express his will. A trust is created if it clearly appears that the words were used in an imperative sense; hut this only where the testator’s desires can he ascertained with reasonable certainty, the subject and the object being clear. Sometimes the testator explicitly states the sense in which precatory-words are used, and in such case of course his express intention governs. Where the testator shows that he knows how to create a trust by doing so in clear and apt words in one part of the will, the use of precatory words in another clause is strong evidence that no trust was there intended. And where an absolute estate or interest is in terms given, precatory words which follow are usually treated as expressions of wish rather than of will, so that no trust is created.”

So that after all, the real question is to ascertain the intent of the testator, as such intent can be gathered from the four corners of the will. When the courts are called upon to declare what is sometimes denominated a “precatory trust” the real thing to be done is to find and declare the intent of the testator in making the will. Some opinions seem to grasp hold of the term “precatory trust” as if it were a distinct and sacred matter, surrounded, as it were, with a halo of mystery. The simple and single question involved in all cases is, what was the intent of the testator ? Did he by the words used intend to create a trust? This intent must be determined under the ordinary and usual rules of law applicable to the construction of wills. For a court to declare or hold that there is such a trust, is but for the court to say that it construes the intent of the testator to be the creation of a trust estate rather than an absolute estate. If by the language of the will there appears an intent to create a trust, then a trust should be declared. The intent of the testator is the pole star in the construction of all wills. We can therefore dismiss from our minds the hallowed ideas of “precatory trusts, ’ ’ and take up the will of William J. Lemp under the usual rules of construction, and try to determine from the will whether or not there was an intent to create a trust estate. This we shall do.

II. At the very outset we are confronted with this language: “I give, bequeath and devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situated or by whatsoever title held, absolutely.” Shortening this expression of the will he gave all of his property to his wife absolutely. That this clause of the will created an absolute estate in the wife there can be no question. Can we say, under the usual rules of will construction, that any subsequent clause of this will cut down and modified-the estate thus granted absolutely. We think not. In Sevier v. Woodson, 205 Mo. l. c. 214, we said:

“We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant. ’ ’

So too in the later case of Gibson v. Gibson, 239 Mo. l. c. 506, we said:

“In what we have above expressed we do not wish to be understood as holding that what would otherwise be a fee in the first taker can be cnt down to a less estate by ambiguous words, or words not as clear and strong as those in the devise to the first taker.”

There is bnt one subsequent clause to be examined in determining whether or not the absolute estate created by the first clause, supra, has been cut down or reduced. Leaving out the names of the parties mentioned in this clause, it reads: “I make no gift here to my children, . . . and I make no gift here to my grandchild, . . . having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them. ’ ’

If it was the intent to create a trust by this clause of the will, and thereby cut down the absolute .estate granted in the first clause, do the words used measure up to the standard prescribed by the books? The.question of real intent we discuss later, but at this point, it might be conceded that the purpose of the testator was to cut down the absolute estate, yet can we say he has so cut it down under the usual rule for the construction of wills, which we have quoted, supra? We say not. The language used in this last clause does not measure up to the standard fixed by the rules. The language used in this subsequent clause is not “as clear, plain and unequivocal as the language of' the grant,” and for that reason is not sufficient in law to cut down, modify or change the absolute estate created by the first clause. To use the words of Sherwood, J., in Small v. Field, 102 Mo. l. c. 127, the absolute estate created by the first clause of this will has not been cnt down nor qualified “by words as affirmatively strong as those which conveyed the estate to her.”

From this angle of the law it is clear that this will granted to Mrs. Lemp an absolute estate, and that no other part of the will is sufficient in law to cut down or reduce that estate. We take next the intent of the testator.

III. "Was there ever intent upon the part of William J. Lemp to create a trust estate? We think not. A trust estate is the subject of a gift. He expressly states in the will: “I make no gift here to my children” and “I make no gift here to my grandchild.” Clearly the word “here” means in this will. It could refer to nothing else. It might be said that he thereby indicated that he had previously made gifts, and it might be further said that he might have had in mind future gifts to be made before the will became effective. To my mind these words clearly show that he was not aiming to create either absolute or trust estates, so far as his children or grandchild, were concerned, by this will. Had it been his purpose to give them his property in the shape of a trust estate, he would never have said, “I make no gift here.” The use of these expressions in the will show that he was not trying or intending to give them an interest in his property, either absolutely or conditionally, in trust. When the explicit language of this second clause is taken in connection with the plain, direct, positive and unqualified words of the first clause, it must be held that there was no intent to convey by the will any interest in his property to his children or grandchild. It is true that he expresses confidence in his wife and says that she ‘ ‘ will without request on my part ... do best for them,” but he saw fit to put all matters at rest, as to his dictation of what she should do, by placing in the will, where the stars above appear, the phrase ‘ ‘ and none such is here made. ’ ’ This clause following the words “request on my part” is a direct statement to the effect that he does not even request the wife to make any particular disposition of her own property — for such it would become under the terms of the will.

So that when we consider this will in its breadth and length — from all of its four corners — there are no words in it tending to show an intent upon the part of the testator to create a trust in favor of his children and grandchild. Every earmark of the.instrument is against such construction. Let us review for a moment: (1) we have a positive absolute estate given the wife; (2) we have the express declaration that he was not giving anything to the children or grandchild in the will, and (3) an express recognition of the estate being absolute in the wife by the testator saying that he would not even suggest to, or request of, the wife any definite division of her own property, when she came to dispose of it. Taken as a whole, the will fails to show an intent to give anything to any person save to his wife. It does express absolute confidence in her, but such an expression does not, under the other language of this will, tend to show an intent to create a trust estate.

But going further to the will as a whole for the purpose of determining the intent of the testator, let us see the ridiculous attitude the testator would be placed in by the contention of plaintiff. If this will creates a trust estate at all, it put every dollar’s worth of property of which testator died seized into that trust estate. The will undertakes to and does dispose of the whole estate, so that if a trust was intended for the benefit of the children and grandchild, it would make them beneficiaries of the entire estate, without a single property provision for the wife. It is not reasonable to think that a man who had expressed such a confidence in his wife intended to leave no actual property to her, or property for her use. It will not do to say that he intended her legal fees as trustee to be her part of his vast estate. Men with the implicit confidence in the wife, as we find expressed in this will, are not prone to cut off that wife without a dollar which she could point to as' her own. If the contention of the plaintiff is correct as to the intention of "William J. Lemp, then he has done this almost unthinkable thing. He has left this wife, who enjoyed that confidence, without a dollar, save what might be gleaned by way of fees for executing a trust. When all the language of this will, precatory words and others, is considered it cannot be said that there appears any intent to create a trust estate in the children and grandchild. Had he had such an intent he could have found apt words to have expressed it, but such apt words are not in this will. We see no need of going further. A discussion of what similar words mean, as used in other wills, can add but little light, because in each the words have different settings when the whole instrument is read.

Nor does the disposition made of the property by the wife deserve comment. If it passed to her by the will, as we hold that it did, she had the right to dispose of it as to her seemed proper. If her action in so disposing of it would have tended to shock the confidence of the husband, had he been living, it would not change the terms of his grant in the instrument which gave her title. Plaintiff’s petition stated no cause of action, and the action of the trial court was right.

Let the judgment be affirmed.

All concur-, Bond, J., in the result, and Woodson, G. J., in a separate opinion.

WOODSON, 0. J.

(concurring). — Upon the argument of this case I had grave doubts as to the correctness of the- conclusions reached by the learned trial court, but after a careful investigation of the authorities relied upon by counsel for each party,- I have ■reached the conclusion that the trial court properly disposed of the case.

There is one question Mr. Schnurmacher, counsel for defendants, asked during oral argument, that cannot, in my opinion, be intelligently answered, except in favor of the maintenance of the will; which was substantially as follows -. Why should Mr. Lemp have disposed of his entire estate without having made provision for his wife, in whom he had implicit confidence, as is incontrovertibly shown by the will itself, making her the executrix thereof, without bond, and with the power to dispose of the same as she deemed best?

Mrs. Lemp, like most good women, evidently was a power of strength in the assistance of her husband in the accumulation of this vast estate, worth more than ten million dollars — -the result of their joint labor.

Would a man of ordinary intelligence, with due regard for his helpmate, the wife of his bosom, intentionally and cold-bloodedly disinherit her under these circumstances, and at the same time bestow upon her the unlimited power to dispose of this vast estate as she deemed proper? The answer, it seems to me, should be: Unquestionably no. And this answer cannot be intelligently refuted by the suggestion of counsel that the fees due her under the law, for administrating the estate, would be a princely fortune of themselves, and would forever keep the wolf from her door.

That may be true, and doubtless is true, yet that fortune would not come from the fund of their joint labors, but as compensation for her services to be rendered in the administration of the estate, in the same sense that any stranger would be entitled to fees for similar services. Such compensation is in no sense a bequest under a will. Moreover, Mrs. Lemp was quite an elderly lady, and suppose, as an incident thereto-she should have become incapacitated to administer the estate, then where would her fortune have been? It does not require a wise man to see the fallacy of such an argument. It is based upon the same ground that people count chickens before they are hatched and dispose of them before they are fryers. In other words, ‘ ‘ There is many a slip between the cup and the lip. ’ ’

But upon the contrary, according to the plain language of the will, Mrs. Lemp was amply provided for, and that, too, with no contingency attached or doubt lurking in the use of ambiguous words.

The only doubt shadowing the entire will is that a man of the great intellect and almost unlimited business capacity, as the record in this case shows Mr. Lemp to have possessed, should have given to his wife the power to disinherit a grandchild, when the means were ample for all.

The books are full of cases wher¿ men, and strong men too, have disinherited not only their grandchildren, but the children of their own blood and flesh. Whether or not the doctrine announced in those cases is wise and conducive to good government is not a matter addressed to the judiciary, but is clearly embraced within the prerogative of the Legislature. This court can no more invade the field of the Legislature than can the Legislature invade the province of the judiciary. The judiciary should declare the laws as they exist and not enact them. If we apply this well-known rule of judicial procedure, nothing remains for this court to do, except to give full force and effect to the will, as did the circuit court.

For the reasons here expressed, as well as those stated in the opinion by my learned associate, I fully concur in his opinion.


author: BOND, J.

text:
    GEORGE C. ORCHARD, Appellant, v. WRIGHTDALTON-BELL-ANCHOR STORE COMPANY and MOLLEE KNIGHT.
    Division One,
    April 1, 1915.
    1. WIDOW’S PERSONAL ESTATE: Child’s Share: In Spite- of Will. A devise of real estate by a husband to his widow does not preclude her from claiming her share in his personal estate equal to a child’s part given her absolutely by section 349, Revised Statutes 1909; and no election to take under the will, nor any renunciation thereof, by her, is necessary to authorize her to claim that share under that statute. -Where the law gives a widow absolutely a certain share in her husband’s estate at his death, he cannot deprive her of it by will, and if in such case the law does not say that she must within a certain time make a formal renouncement of the will, she need not do so, but may simply ignore the will, and claim what the law gives her. [Following Egger v. Egger, 225 Mo. 1. c. 141.]
    2. -: Share in Leasehold: Ejectment. Where testator by his will devised his real and personal estate to his widow and two children in equal proportions, a leasehold for twenty years held by him, being personal property, passed, upon his death and a settlement of his estate undisposed of, to his said widow and children, as distributees, and a conveyance of said leasehold by the widow to plaintiff conveyed to said assignee the title of one of the three joint owners. [Following Orchard v. Store Co., 225 Mo. 414.]
    3. -: —.-: -: Against Lessee of Void Lease. One cannot question a title given by himself, or hold possession of . land in the face of his own deed. So that, the assignee of said lessee, having succeeded to the one-third interest which vested in the widow at the close of the administration, is entitled to recover possession of the leasehold property in ejectment against the same lessor and the lessee of a subsequent void lease, and neither can wholly defeat the action on the sole ground that the two children, who, with plaintiff, are the only rightful claimants under the original lease, are not made parties; but the said children should be made plaintiffs.
    peal from St. Louis County Circuit Court.- — Hon. John W. McElhinney, Judge.
    EVERSED AND REMANDED.

      Lew B. Thomason and James Orchard for appellant.
    (1) A leasehold estate, whether it be for twenty or for any other number of years, is personal property. Orchard v. Store Co., 225 Mo. 414. (2) The devise of real estate by the deceased husband to the widow, does not preclude her from sharing in the personal estate of her deceased husband of which he dies intestate ; and no election or renunciation of the will is necessary. R. S. 1909, sec: 349; Hayden v. Hayden, 23 Mo. 398; Haniphan v. Long, 70 Mo. App. 352; Buford v. McCune, 49 Mo. 546; Martin v. Norris, 91 Mo. 465; Brown v. Tucker, 135 Mo. App. 598; Sparks v. Dorrell, 151 Mo. App. 173; Eggers v. Eggers, 225 Mo. 116; Zook v. Welty, 156 Mo. App. 712. (3) The defendant Mollie Kniglit (nee Kraemer), having executed and delivered a valid lease to the premises in controversy, to Antonio Saracini, which was in full force and effect, her subsequent attempted lease of the same premises, to her codefendant herein, is .void and of no effect. Steel v. Culver, 158 Mo. 138. (4) The contract entered into by the plaintiff Orchard with the defendant store company on July 19, 1901, and the possession of the store company under said contract, whether construed as a lease in praesenti or as an agreement to lease in futuro creates the relation of landlord and tenant, and the store company as the tenant of the plain- . tiff either for a term of years or at will, cannot dispute the plaintiff’s title. The contract fixes the date of the commencement of the term, the expiration of the term, the amount of the rent, and gives the right of immediate possession. Where the contract leaves nothing-to be done, it passes a present estate. Johnson v. Ins. Co., 46 Conn. .92; Coin v. Feiner, 16 N. T. S. 203; Crow v. Hildrith, 39 Cal. 618; Shoe Co. v. Gorman, 50 Mo. App. 642. A tenant at will, equally with a tenant from year to year, is estopped and precluded from denying his landlord’s title, Town v. Butterfield, 97 Mass. 105; Coburn v. Palmer, 8 Cush. (Mass.) 124; Cobb v. Arnold, 8 Mete. 398; Moore v. Beasley, 3 Ohio, 294. (4) An action of ejectment may be maintained for the recovery of the possession of the premises in all cases, where the plaintiff is legally entitled to the possession thereof. R. S. 1909, sec. 2382; Evans v. Kunze, 128 Mo. 670. (5) The application of the principle that plaintiff in ejectment must recover upon the strength of his own title, and not the weakness of the title of his adversary, is not to be understood as requiring the plaintiff to make out a perfect title; but it only requires that the plaintiff shall exhibit such title or right to possession as will pnt tlie defendant to the proof of a title or right superior to that of a mere naked possession. Hartley v. Farrell, 9 Fla. 373; Burt v. Panjaud, 99 U. S. 180; Matney v. Graham, 59 Mo. 190; Morfleet v. Russell, 64 Mo. 176; Duncan v. Able, 99 Mo. 188; Rogers v. Mays, 84 Mo. 520.

      E. B. Lents and Nagel & Kirby for respondents.
    (1) This case has been once before in this court and practically every question now presented has been passed upon and the law declared thereon by this court, and in the retrial in the court below, the ruling of this court has been strictly followed. The decision of this court on the former appeal is the law of this case upon all questions which were there passed upon. Orchard v. Store Co., 225 Mo. 414; Chambers v. Smith, 30 Mo. 156; Bank v. Taylor, 62 Mo. 338; Keith v. Keith, 97 Mo. 223; Com. Co. v. Bank, 35 Mo. App. 472; Wayne v. Railroad, 35 Mo. App. 567; Railroad v. Bridge Co., 215 Mo. 286; Merriwether v. Knapp & Co., 224 Mo. 617. (2) So far as plaintiff’s right to recover against the Store Company is concerned, the only question'left open by the former decision in this case, was the question of fact whether the leasehold here in controversy was the same leasehold as that which was devised'to Michael Saracini, by the will of his brother, Antonio, or whether Antonio Saracini died intestate as to the leasehold in controversy. Since the fact that he died intestate as to the leasehold is admitted in the record and proved by uncontradicted facts this court has already held that plaintiff had and has no title, and cannot recover. Orchard v. Store Co., 225 Mo. 464. After the case was reversed and remanded, the plaintiff filed an amended replication to the answer of the defendant, the Wright-Dalton-Bell-Anchor Store Company, in which it was admitted that Antonio Saracini died intestate as to the leasehold in question. They also introcLuced Michael Saracini as a witness, who testified that his brother held two leases from Mollie Kraemer; that he (Michael) was in possession of one of those leases, which is not in controversy here, and that the other of the said leases is the one in controversy. The trial court found as a fact that Antonio Saracini died instate as to the leasehold in question. Consequently the former decision of this court is res adjudicate/, upon every question here presented, and precludes plaintiff from recovering. (3) The will of Antonio Saracini devises lands to his widow and makes no provision .that this devise is to be in addition' to her dower interest. The statute provides that if any testator shall by will pass any real estate to his wife, such devise shall be in lieu of dower, out of. the real estate of her husband whereof he died seized, or in which he had an interest at the time of his death, unless the testator by his will otherwise declared. R. S. 1909, sec. 360; Kaes v. Gross, 92 Mo. 647; Schorr v. Etling, 124 Mo. 42; Doherty v. Barnes, 64 Mo. 159. This court has already held in this case that the leasehold in question was an interest in the land covered thereby, and the widow’s right to dower therein was barred by the will which devised other real estate to her. Orchard v. Store Co., 225 Mo. 405. (4) The statute further provides that in the case mentioned in section 360 the wife shall not be endowed in real estate whereof her husband died seized, or in which he had an interest at the time of his death, unless she shall by writing duly executed and acknowledged, as in cases of deeds for land, and filed in the office of the court in which the will is proved and recorded, within twelve months after the proof of the will, not accept the provisions made for her by said wall. R. S'. 1909, sec. 361. There is no pretense here that any such renunciation of dower was ever made, and by the very terms of this statute the widow is not endowed of this leasehold, and this court has already so held. Orchard v. Store Co., 225 Mo. 465. (5) In ejectment the plaintiff can only recover upon the strength of his own title, and not upon the weakness of the title of the defendant. ' McVey v. Carr, 159 Mo. 651; Prior v. Scott, 87 Mo. 308; Dnnn v. Miller, 75 Mo. 272; Bledsoe v. Simms, 53 Mo. 308.
    STATEMENT.
    Respondent, Mollie Knight, formerly Kraemer, on the 12th of March, 1898, executed a twenty-year lease on a certain parcel of ground in Poplar Bluff, Missouri, of which she was the owner in fee, to Antonio Saracini at a rental of ten dollars per month. The lessee took possession and held the premises until his death, August, 1900, leaving a wife and two children, to whom he devised his personal and real estate in equal parts, after bequeathing his cash on hand, stock, implements, etc., to his wife, whom he made the executrix of his will without bond, and who qualified and entered upon her duties as such, and in September, 1900, filed an inventory including the aforesaid leasehold.
    On the 12th of April, 1901, she conveyed her interest in said leasehold to George 0. Orchard (plaintiff) .and thereupon two tenants of a building on the premises attorned to Orchard. On the 3rd day of May, 1901, Mollie Knight, brought unlawful detainer against Orchard and his two tenants, claiming that the leasehold had been forfeited for non-payment of the taxes, which under the terms of the lease were a part of the rent reserved. This cause was determined against the right to forfeit, for the reasons given by the St. Louis Court of Appeals in Knight v. Orchard, 92 Mo. App. 466.
    Pending this suit, and prior to its final disposition, Mollie Knight leased the premises to the Store Company, which is joined as a defendant with herself in the present action of ejectment brought by George C. Orchard. This case was also heard on a former appeal to this court, which may be examined for a full statement of facts and rulings on the questions then presented. That was an appeal by the present plaintiff against the present defendants and was reversed and remanded, after the court had passed upon all the questions- and their ramifications presented by the record, because of the failure of appellant to present a “definite theory’’ of his rights, or those of the widow under whom he claimed, and in view of the uncertainty as to whether the leasehold in suit was the one referred to in the will of Saracini. Wherefore, the court ordered a retrial in conformity with the views expressed in that opinion. [Orchard v. Store Co., 225 Mo. 414-466.]
    Upon the questions thus relegated, the case has been retried, after an amendment of the pleadings and the presentation of evidence tending to show that the leasehold involved in this action was not mentioned in the will of Saracini, and after a, change of venue to St. Louis county'has resulted in a judgment against the plaintiff, from which he has again duly appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above.) — On the first appeal of this case, this court decided, among other things, that the leasehold in question was not devised by Saracini to his wife and two children under the terms of his will giving them equal parts of all his “real estate,” since it did not have that character, but was only personal estate, despite the statutes providing that leaseholds of such duration (twenty years or more) should be assigned for dower in the same manner as real estate. [225 Mo. l. c. 456.] The court predicated that conclusion upon the fact that the statute did not alter the essential nature of such leaseholds as personal property, given to them by the common law, and hence they would not pass under a devise confined by its terms to real estate.

Applying this ruling to the title set up by plaiiitiff under the conveyance to him of the leasehold by the widow of the original lessee, and it is evident that it acquired no support from any devise to her by her husband. Appellant concedes this and further that his grantor, Mrs. Saracini, had no title to the leasehold as doweress of the real estate of her husband. But he insists that she and her two children were joint owners as distributees of the leasehold, and that the conveyance to him thereof carried her undivided one-third interest therein, and cites in support of that position, the following section of the statute (R. S. 1909, sec. 349): “When the husband or wife shall die, leaving a child or children or other descendants, the widow or widower shall be entitled absolutely to a share in the personal estate belonging to the husband or wife at the time of his or her death, equal to the share of a child of such deceased husband or wife. ’ ’

Appellant maintains that since the leasehold in question was merely personal property, the widow of Saracini, upon his death, became entitled thereto conjointly with her two children under the statute absolutely, and hence her failure to renounce the will which devised certain real estate to herself and her two children did not deprive her of the rights and interest in the leasehold bestowed by the above quoted statute. This position of appellant is sustained by the following language of Judge Yalliant, speaking for this division :

“Where the law gives a widow absolutely a certain share in her husband’s estate at his death, he cannot deprive her of it by his will, and if in such case the law does not say that she must make within a certain time a formal renouncement of the will she need not do so but may simply ignore it and claim what the law gives her. There are certain sections of the statute relating to the widow’s share in her deceased husband’s estate, as pointed ont in the brief of appellants, that put on her the duty of election, but section 2937 (R. S. 1909, sec. 349) under which this widow is now claiming a share equal to a child’s share, is not one of them; the law gives her that share absolutely and unless she has bargained it away or is estopped to assert it she is entitled to it now.” [Egger v. Eggex, 225 Mo. l. c. 141.]

Accepting this authority, it will be seen that the plaintiff in this action of ejectment has acquired at most only the title of one of the three joint owners of the leasehold. The two children who took one-third each of that asset at the death of their father are neither parties to this suit, nor represented here in any way.

The situation of the case as to the two defendants, the Store Company and Mollie ICnight, is that one of them, Mollie Knight, is the original lessor of a valid lease of the property yet unexpired and is setting up some claim against the explicit terms of her own grant. The other defendant, the Store Company, claims only under a second lease made by Mollie Knight contrary to the terms of her former outstanding lease, which has neither been forfeited nor surrendered. The attitude of these two defendants was fully discussed upon the former appeal. After examining the contention then made that Mollie Knight had reacquired' title to the leasehold from the fact of an alleged sale thereof during the course of administration and a conveyance to her by the purchaser at such sale, the court said that the sale in question was shown by the record to be void and open to collateral attack. [225 Mo. l. c. 461.]

And the court further held that Mollie Knight was shown by the record to have made the second lease to her co-defendant prior to the illegal sale of the leasehold by Saracini’s administrator, and hence it was “evident that this second lease was not made in reliance” upon the administrator’s sale. [225 Mo. l. c. 462.]

From these ruling's on the former appeal, it necessarily follows that neither of the defendants has any legal right or claim to the leasehold sought to be recovered in this action. [225 Mo. l. c. 458.] The learned counsel for respondent admit that under the present record no right or interest could be shown in either defendant other than a bare possession by the ‘ ‘ Store Company” on the day of suit, but insist that the right to possession is legally vested in “strangers” to this action. This contention is correct as to two-thirds of the ownership of the leasehold which descended to the children of Saracini after the closure of the administration of his estate leaving that asset undisposed of. It is not correct as to the present plaintiff, for if the written conveyance to him by the widow was validly executed, he has succeeded to the one-third interest which became vested in her at the same time.

For some reason the present action seemed to have been prosecuted in total disregard of the rights of the two children of Saracini, or their representatives. We think the ends of justice will be subserved by a reversal and remanding of this case to the end that all the owners of the leasehold may be made parties plaintiff. When that is done no difficulty will be experienced in establishing their rights to the leasehold in question. They will not be required to deraign title further than the common ancestor, Mollie Knight, and neither she nor her assignee (the Store Company) will be allowed to defend against the valid conveyance made by her to Antonio Saracini, for “it requires no citation of authority to show that a man cannot question a title given by himself or hold possession of the land in the face of his own deed.” [Steele v. Culver, 158 Mo. l. c. 138.]

The judgment herein is reversed and the cause remanded to be proceeded with in conformity to this opinion.

All concur.