author: LAMM, J.

text:
    BENJAMIN F. ALEY et al., Minors, by Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    April 13, 1908.
    1. NEXT FRIEND: Relative. No discouragement should be thrown in the way of persons bona-fide suing as next friends, but no undue facility Should be given to mere volunteers. Nearness of kinship, such as an uncle of the minors' or other near relative, whose business capacity and character are unblemished, is an element to be considered in such appointment.
    2. -: Non-resident: No Statutory Inhibition. The fact that the statute requires administrators, curators, officers, bondsmen and certain other persons to be residents, while it is silent as to the residence of a next friend, emphasizes the fact that in the constitutional and legislative mind residence in this State is not necessary to enable a next friend to maintain a suit here.
    3. -: '-: To Recover Damages. A resident of Kansas can maintain suit in this State on behalf of his nephews and nieces to recover statutory damages for the wrongful killing in this State of their parents while passengers on a railroad train being operated in this State.
    ,4. -: -: Bond: Option. The appointment of a non-resident to act as next friend for the beneficial minors in the-suit is not invalid because a bond was not exacted from him to properly account to the minors for the money recovered by the litigation. The court • or officer may require such a bond before the appointment is made, but is not compelled to do so. Under the statute each has a discretion in the matter.. And the court may require such a bond at any stage of the proceeding for the protection of the minors, but it is no concern of the defendant whether or not such bond is given or required.
    5. DAMAGES: Death of Parents: Premature Suit by Minors: Within Six Months. Where both father and mother were killed in the same railroad accident, a suit brought by the minor children through their next friend for statutory damages within six months is not premature, although the petition does not allege which was killed first. The language of the statute, in reserving the action to the surviving parent for six months. presupposes that one parent is in esse where the other is killed, and if hoth were killed there is no reason why the minors should wait six months to bring suit.
    6. -: Death of . Both Parents: Survivorship. Where two trains collided and plaintiffs’ parents who were riding side by side as passengers in a car were found dead after the accident, he on the floor and she in her chair, the presumption is, if any is to be indulged, that their deaths were instantaneous and therefore simultaneous. But it is not material which died first, when the defendant railroad company is sued by their children for statutory damages.
    7. -: -: Pleading: One Count: One Verdict for $.10,000: Waiver. Where the statute provided a penalty by way of compensation to the minor children in the sum of $5,000 for each parent, and where the two causes of action arose out of one injury, namely, the simultaneous wrongful death of both parents, it is not a fatal defect to commingle these two causes of action in one count of the petition, nor to allow a judgment under that count for $10,000 for the death of both parents. It would have been better pleading to have stated in separate counts the facts essential to recover for the death of each parent; but it is assumed that it was proper to sue for the death of hoth parents in one suit, and as the allegations as found in the one count are not antagonistic, inconsistent or self-destroying, the defect of commingling the two causes was waived by answer. [Distinguishing Casey v. Railroad, 205 Mo. 721, and Casey v. Railroad, 116 Mo. App. 235.]
    8..-: -: -: -: Motion to Elect: Instruction. And having answered over, defendant’s motion to require plaintiffs to elect upon which cause of action they will proceed, filed at the beginning of the trial, and its instruction telling the jury that the plaintiffs could recover only $5,000, came too late, and were properly overruled.
    Appeal from Johnson Circuit Court. — Ron. N. M. Bradley, Judge.
    Affirmed.

      Martin L. Glardy and R. T. Railey for appellant.
    (1) As J. W. Aley was a non-resident of Missouri, the clerk had no legal right to appoint him as next friend, nor can he legally prosecute this suit, and especially on account of having given no bond as required by section 554, Revised Sta'tutes 1899'. (2) At common law, a personal right of action died with the person. If respondents are entitled to recover on account of the death of Tilghman H. Aley and Alice Aley, his wife, it is by virtue of a transmitted right, given by section 2864, Revised Statutes 1899: Bates v. Sylvester, 104 S. W. 74; Strode v. Railroad, 197 Mo. 626; Hennessy v. Brewing Co., 145 Mo. Ill; Proctor v. Railroad, 64 Mo. 119. (3) There being no right of action at common law, as heretofore shown, if one exists, it is by virtue of a transmitted right conferred by section 2864, Revised Statutes 1899. The Legislature in transmitting this right, reserved to itself the exclusive power of naming those who could maintain the action; of fixing the time in which each .could sue; and likewise had the power to fix the forfeiture or penalty of any one count at $5000. The respondent’s right of action — if any exists — is founded upon said section 2864. Under said section, no right of action is given for $10,000 in a single count or otherwise. If you can sue for and recover $10,000 under said section, in a single count, then why can you not sue for $4,500 under the same section? This court in a recent opinion has conclusively settled the last proposition in the negative. Casey v. Railroad, 205 Mo. 721; Casey v. Railroad, 116 Mo. App. 235; Raisor v. Railroad, 74 N. E. 69; DeBoth v. R. H. C. & M. Co., 141 Mo. 497.

      Jackson & Noble and Charles E. Morrow for respondents.
    (1) The statute does not require a next friend to be a resident of this State. R. S. 1899; sec. 551. Neither does the next friend have to give a bond that he will account to the infant unless required by the court or officers to whom application for such appointment shall be made. R. S. 1899; sec. 554. Even if the next friend appointed were an improper person, after verdict in favor of the infants, it is no ground for reversal in the appellate court. Ralston v. Lohee, 8 Iowa 17; Story v. Dayton, 22 Hun 450; Ward v. Lowndes, 96 N. C. 367. (2) There was hut one wrong. A single act, a single wrong, gives rise: to but one cause of action, whether or not the act infringes upon different rights or causes different injuries. The entire injury resulting from one negligent act constitutes but one cause of action, however numerous the items of damage may be. Morgan v. Railroad, 111 Mo. App. 727; Lamb' v. Railroad, 33 Mo. App. 489; Steiglider v. Railroad, 38 Mo. App. 511; Stiekford v. St. Louis, 75 Mo. 309, 7 Mo. App. 217; Peake v. Railroad, 26' Fed. 495; Railroad v. Chester, 57 Ind. 297; Perry v. Dickerson, 85 N. Y. 347; King v. Railroad, 50 L. R. A. 161; 1 Ency. PL & Pr., 159. (3) Even if we concede that the statute is wholly penal and for that reason the death of the father and mother constituted separate causes of action, yet, on this theory, the third count upon which judgment was taken states two causes of action instead of failing to state any. It asks for $10,0'00, two penalties. It is one thing not to sue for even one penalty , —$4,500, as in the Casey case — and quite a different thing to sue for "two penalties — $10,000, as here. The petition states facts showing two deaths by reason of defendant’s negligence. It may be that it states two causes of action, but surely it cannot be said that it fails to state any. The prayer of the petition is no part of the statement of the cause of action. Emmert v. Meyer, 65 Mo. App. 609. Even when two causes of action are stated in two counts, one prayer for relief is sufficient. Briggs v. Railroad, 82 Mo. 37. The defendant has filed its answer in this case, and any relief embraced within the issue could be given. Bliss on Code Pleadings, sec. 161. The judgment in this case was not for a greater sum than that demanded in the petition. Nor can it he said that it was not consistent with the case made by plaintiff or that it was not embraced within the issue. Sharkey v. McDermott, 91 Mo. 65-7; State to use v. Adler, 97 Mo. 420; Hicks v. Jackson, 85 Mo. 283. (4) At most there was improperly mingled in one count two causes of action, consistent with each other, which might have been properly united in the same petition. This error was waived by pleading to the merits and going to trial. The motion to require plaintiff to elect after all the evidence was in on both sides was too late. White v. Railroad, 202 Mo. 560; Jordan v. Railroad, 202 Mo. 1. c. 427; Paddock v. Somes, 102 Mo. 235; Christal v. Craig, 80 Mo. 371; Steveson v. Judy, 49 Mo. 227; Otis v. Bank, 35 Mo. 128; Murphy v. Railroad, 96 Mo. App. 272; R. S. 1899, sec. 602-. (5) There is no legal presumption .that either Mr. or Mrs. Aley survived the other. Whether either survived the other is a fact to be determined from the evidence like any other fact. United States Casualty Co. v. Kacer, 169 Mo. 301; Supreme Council, etc., v. Kacer, 96 Mo. App. 93; 13 Cyc. 308. The court upon ample evidence in this case found that both were killed at the same time and that neither survived the other. This finding precludes the defendant on that question in this court. (6) We do not think it necessary, in order to decide this case, to determine whether the right given by the statute is a transmitted right or a new cause of action. But as appellant seems to rely upon the doctrine of transmitted right, we contend that this doctrine is a mere fiction. The deceased never had a right to sue for his own death, neither did his representatives. Then how could a right which never existed he transmitted? Surely deceased never had a right to sue for a penalty for his own death. If the statute is penal as claimed, it without doubt creates a new cause of action. If it is compensatory the action is also a new right. The pain and suffering of the deceased prior to his death is no part of the injury. It is the loss to the relatives mentioned in the statute. Unless this is true an instantaneous death would not be actionable. Beben v. Railroad, 186 Mo. 430; Meekin v. Railroad, 164 N. Y. 145; Martin v. Railroad, 151 U. S. 695; Re Estate of Mayo, ' 60 S. C. 401; Matz v. Railroad, 85 Fed. 180; Hulbert v. Topeka, 34 Fed. 510; Byron v. Railroad, 102 Wis. .137; Railroad v. Barron, 72 U. S. 90; 3 Sutherland on Damages, p. 282.
   LAMM, J.

— On December 20th, 1904, suit was brought in the Johnson Circuit Court for the death of Tilghman H. and Alice Aley, the father and mother of the minor plaintiffs, Benjamin F., Ruby, Howard and Mary Aley. The petition was in three counts — the first, for $5,000 damages bottomed on the wrongful death of the father through the negligence of defendant, its agents, servants and employees; the second (■mutatis mutandis) for like amount for the wrongful death of the mother at the same time and place; and the third (mutatis mutandis) for $10,000 damages for the death of both parents at the same time and in the same accident. Under the circumstances hereinafter set forth, plaintiffs dismissed as to the first and second counts and, at a trial without a jury, judgment went in their favor on the third for $10,000. From this judgment, on due steps, defendant appeals.

Pertinent to questions made, it will be well to set forth the third count of the petition — the constitutive elements of the abandoned counts needing no attention. Said third count follows:

“For another and further cause of action, plaintiff states that Benjamin F. Aley is a minor of the age of twenty years; that Ruby Aley is a minor of' the age of seventeen years; that Howard Aley is a minor of the age of fifteen years, and that- Mary Aley is a minor of the age of twelve years; that they are the children of Tilghman H. Aley and Alice Aley, who were at all the times hereinafter mentioned husband and wife, and are the only minor children and heirs of said Tilghman H. Aley, who was their father, and Alice Aley, who was their mother, and that they reside in'Cowley county, Kansas, and have no legally appointed guardian or curator in the State of Missouri.

“That J. W. Aley has been duly appointed and has consented to act as their next friend in this suit, and that the petition for said appointment, the written consent of said J. W. Aley to be .said next friend, and the said order of appointment, have been duly filed in the office of the clerk of said court.

“That the defendant now is and at all the times hereinafter mentioned was a corporation duly organized and acting under the laws of the State of Missouri, and was the owner of and engaged in operating a line' of railway into and through the counties of Cowley and Chautauqua and other corinties in the State of Kansas to and beyond the eastern line of said State of Kansas and into and through the county of Johnson and other counties in the State of Missouri to the city of St. Louis, Missouri, and is and was at all said dates a common carrier of passengers and freight'.

“That on the — day of October, 1904, the said Tilghman H. Aley and the said Alice Aley, the father and mother of the minors aforesaid, purchased from the duly and legally authorized agent of the defendant at Cedarvale, Kansas, tickets which entitled’each of them to ride on the defendant’s train of cars as passengers from said station of Cedarvale to the city of St. Louis, Missouri; that they each paid to said defendant’s agent at the said station of Cedarvale, who was duly authorized by the defendant to sell tickets to persons desiring to take passage and travel upon defendant’s trains from said station of C'edarvale to other points upon its railroad in Kansas and Missouri, including the city of St. Louis, the usual and customary price charged and collected by defendant for carrying-passengers upon its trains from said station of Cedar-vale to the city of St. Louis, upon which said Tilghman H. Aley and Alice Aley intended to and did take passage on said date.

“That after purchasing said tickets from said agent of defendant and paying him therefor, the said Tilghman H. Aley and Alice Aley boarded and took passage upon one of defendant’s trains at its station of Cedarvále, Kansas, for the purpose of being carried to the city of St. Louis as passengers thereon, and. upon which train they each became and were passengers, and the defendant undertook to carry them safely from said station of Cedarvale to the city of St. Louis as passengers; that 'said defendant did not carry said Tilghman H. Aley and Alice Aley safely, as it was its duty to do, but while they were passengers upon its said train, on the 10-th day of October, 1904, when it reached a point about a mile and a half east of the city of Warrensburg, Missouri, the train on which said! Tilghman H. Aley and Alice Aley were riding and being carried, by the carelessness, negligence and wrongful acts and conduct of defendant, its agents, servants and employees, was, without fault or negligence or want of care on the part of the said Tilghman H. Aley or Alice Aley, struck by another train and engine on defendant’s road and the two trains were then and' there and thereby, without fault or negligence on their part, but by reason of the carelessness, negligence and want of proper care on the part of defendant, its agents, servants and employees, collided, and another train of defendant’s being run, managed and operated by the defendant, its agents, servants and employees and going westward on the same track that the train upon which the said Tilghman II. Aley and Alice Aley were riding was going eastward, and while both of said trains were running at a high rate of speed, ran into each other, causing what is usually known as a head-end collision, which caused a sudden and severe jar to said train and the car in which said Tilghman H. Aley and Alice Aley were riding was wrecked and demolished, thereby killing the said Tilghman H. Aley and Alice Aley; that said defendant, its agents, servants and employees were negligent and careless in the operation and management of said trains of cars as aforesaid, and on account thereof said collision occurred, by reason of which the said Tilghman H. Aley and Alice Aley were killed; and that the death of the said Tilghman II. Aley and Alice Aley were caused solely by the said negligence and carelessness of the defendant, its agents, servants and employees aforesaid, to the damage of said minors in the sum of ten thousand dollars.

“Wherefore, he prays judgment against the defendant for the said sum of ten thousand dollars, with costs of this suit.”

The amended answer follows:

“Now comes said defendant and for amended answer herein, denies each and every allegation contained in the first count of plaintiff’s petition.

“Wherefore, it prays to be discharged with its costs.

“(a) Said defendant for further defense states that J. W. Aley, who is alleged in petition to be the next friend in the prosecution of this suit for the alleged minor plaintiffs, is now and ever since the 1st day of January, 1904, has been a resident of the State of Kansas; that by reason thereof he is disqualified to act as next friend in this action, and neither the court nor clerk has any authority to appoint him to act in any such capacity; that by reason of the premises neither said minors nor said J. ~W. Aley have any legal authority to prosecute this suit.

“Wherefore, defendant prays that the same may be dismissed, together with its costs herein.

“(b) Said defendant for further defense states that not only has said J. W. Aley been a non-resident of the State of Missouri since the 1st day of January, 1904, and by reason thereof has no legal capacity to maintain this action, but it is also true that said J. W. Aley, in attempting to act as next friend herein, has never given any bond, as required by law, for the faithful performance of his duty and conditioned that he would account to said infants for all money or property which might be recovered in said suit. That by reason of the premises neither said J. W. Aley nor these plaintiffs have a legal right or legal capacity to maintain this action.

‘ ‘ Wherefore, defendant prays to be discharged with its costs.

“2. Said defendant for amended answer to second count of plaintiff’s petition herein adopts in all respects its answer to first count and mates the same a part of the answer in this count.

“Wherefore, defendant prays to be discharged with its costs.

“3. Said defendant for amended answer to third count of plaintiff’s petition herein adopts in all respects its answer as to first count and makes the same a part of the answer in this count.

“Wherefore, defendant prays to be discharged with its costs.”

The reply is a general denial of new matter.

At the trial term plaintiffs filed a motion to strike out paragraphs a and b of the answer because said paragraphs state no defense to the cause of action. This motion was sustained, defendant electing to stand on its answer and saving its exception. .The trial proceeding on the heels of this ruling, at its beginning defendant filed the following motion:

“Now comes said defendant and moves the court to require said plaintiffs under the third count of petition to elect whether they will try the cause predicated upon the alleged damages growing out of the death of Alice Aley, and to strike out the remaining alleged cause of action for the following reasons:

“1. Because the statute under which this suit is brought only contemplates a recovery in any one count for $5,000.

“2. Because the provisions of the statute under which this suit is brought do not contemplate that a judgment can be rendered upon a single count for more than $5,000.”

This motion was taken under advisement with the case on its merits and being finally overruled defendant excepted.

The admissions made in open court by defendant include the following:

That J. "W. Aley (the prochein mni) was a resident of the State of Kansas, was appointed next friend of the minor plaintiffs by the clerk of the circuit court of Johnson county and that he gave bond for costs but none as next friend. That Benjamin F., Ruby, Howard and Mary Aley, the minor plaintiffs, are minor children of Tilghman H. and Alice Aley, deceased (husband and wife), and the only minor children of said decedents. That Tilghman H. and Alice were killed in a wreck while passengers on defendant’s train a short distance east of "Warrensburg, Missouri, on October 10th, 1904. That as such passengers they had paid their fare to St. Louis and return, and on said date while on their journey, a little east of Warrens-burg, the train on which they were riding collided, •“head-end,” with one of defendant’s freight trains going west, wrecking "both. That after the wreck the mother and father were found dead and were killed in the wreck. That the freight train was running contrary to orders. That at the present time, as at the commencement of the suit, the next friend was a nonresident of the State of Missouri. That the application and the proceedings in regard to the appointment of next friend were in proper form and in compliance with the statutes (except defendant’s learned counsel contends that J. W. Aley as a non-resident had no right to maintain the action, especially without bond). That the petition was filed on December 20th, 1904, and summons . served on the same day. That this suit is the only suit brought by these plaintiffs, or the next friend named, or by any other person on behalf of these minors for the deaths of their father and mother, and that neither said father nor mother ‘ ‘ ever brought any suit to recover any damages on account of the death of either in the wreck’aforesaid. ”

Supplementing the foregoing admissions, plaintiffs introduced testimony tending to show, among other things, that decedents were going to the St. Louis Fair from Cedarvale, Kansas. That they took passage at Cedarvale on one of defendant’s passenger trains. That the witness testifying (Sullivan) was on the same car and sat about five seats from them. That their train was running fast when a collision occurred at 4:10 a. m. That the tender of the engine of their train was telescoped back inco the train on which witness and Mr. and Mrs. Aley were riding. That thirty-one passengers were killed, including Mr. and Mrs. Aley. That they were dead when witness again saw them. That the body of Mr. Aley was lying on the floor by the side of the seat on which he had been sitting with his wife. That her body was in the seat. That they were both killed by the collision and the destruction of the car.

At the close of the case, defendant asked the following instruction:

“The defendant under the third count of plaintiffs’ petition asks the court to declare that the plaintiffs are not entitled to recover because the petition fails to show whether the husband or wife survived each other, and for the further reason that it is attempted to recover $10,000 under the statute in a single count, wherein only a verdict of $5,000' could be rendered; and also because it does not appear from the petition nor from the evidence whether Tilghman H. Aley survived his wife or whether his wife, Alice Aley, survived her said husband.”

The bill of exceptions does not show that the foregoing instruction was formally refused. But, by necessary implication, it must have been taken, nisi, as bad law under the facts, since the finding of the court was against it and in favor of plaintiffs for $10,000.

The motion for a new trial pointed to .the following alleged errors: Error in striking out paragraphs a and b in the answer, and herein of error in allowing a non-resident of the State to prosecute this action as next friend, especially without giving* bond. Error in overruling the motion to elect under the third count. Error in refusing defendant’s declaration of law in the nature of a demurrer to the third count.

In the motion in arrest it is asserted that neither count of the petition states a cause of action and, especially, that plaintiffs had no legal right to maintain the alleged causes of action for the reason that the suit was filed less than six months from the death of the father and mother and the petition does hot allege whether the father survived the mother, or the mother, the father. These motions being* overruled defendant excepted.

In this court learned counsel rely on the following propositions to reverse the case:

(1) That the clerk of the circuit court of Johnson county had no right to appoint a non-resident of Missouri as next friend nor can such non-resident legally prosecute this suit, “and especially on account of having given no bond as required by section 554, Revised Statutes 1899.”

(2) If respondents are entitled to recover it is not by virtue of the common law, but by virtue of a transmitted right conferred by section 2864, Revised Statutes 1899. That section reserves to itself the exclusive power of naming those who could maintain the action; fixes the time in which each could sue, and fixes the forfeiture or penalty of any one count at $5,000. Under said section no right of action is given for $10,000' in a single count or otherwise.

(3) The action was prematurely brought. By the statute the absolute right of action for the first six months is in the husband for the death of the wife, and in the wife for the death of the husband.

(4) If it be claimed that the husband and wife perished simultaneously, then, in answer to such claim, it is contended that there is no presumption that such is the fact, no allegation that such is the fact, no proof that such is the fact. A case cannot stand on mere conjecture, especially so where the case is based on a statute in derogation of the common law.

(5) If this court should hold under the pleadings and facts either that Tilghman H. survived Alice, or Alice survived Tilghman, and that these plaintiffs could maintain an action under the third count upon the death of the survivor for $5,000, and, if this court should further hold that the facts partially sustain the judgment, nisi, then it is contended that the cause should be reversed with directions to enter a judgment for plaintiffs for $5,000 and tax the costs of this proceeding against respondents.

I. Is there merit in either branch of the first proposition advanced, viz.: That there was error in appointing a non-resident of Missouri next friend for the minor plaintiffs, or in allowing the suit to be maintained without a bond?

(a) The statute is silent on the question of the residence of a next friend. The general policy, evidenced by our constitutional and statutory provisions, is to expressly provide for residence in all matters' where residence has been deemed a sine qua non. See, for example, those constitutional and statutory provisions making residence of the essence of the right to hold certain offices. So, too, under the Administration Act, Revised Statutes 1899, section 10, it is expressly provided that letters testamentary or of administration shall in no' case be granted to a non-resident of the State. The same provision exists relating to curators and guardians, section 3492. Likewise the domestic residence of bondsmen in replevin and attachment suits is expressly required in sections 372 and 4467. In fine, our statutes abound with like provisions. In this condition of things, establishing the legislative policy of expressly providing for residence when residence rises to the plane of a condition precedent, the omission to provide for the domestic residence of a next friend in a suit prosecuted by minor plaintiffs is made (to borrow an idea from Lord John Rttsrut.t.) conspicuous by its absence. The reasonable deduction from such omission is that in the legislative mind the residence of a next friend was not deemed vital.

The good sense of the thing runs strongly the same way. Take this case: These minors were residents of Kansas. The party appointed their next friend was their uncle. There is no suggestion he was wanting in integrity or capacity. He stood, then, rectus in curia. Presumably, these infants were strangers in a strange land in Johnson county, Missouri. In this fix, what insuperable objection can the eye, of the law see in the way of his appointment to look after the interest of his nephews and nieces in so important a case? Why may not the genial sun of comity shine upon the situation? When once appointed he became, in a sense, an officer or agent of the court, its ministerial hand, in and about the conduct of the suit. His function was in the nature of a guardian ad litem — the court itself, however, remaining their real guardian clothed with the paramount general duty of protecting their interests — they being the real parties to the suit. [Blumenthal v. Craig, 81 Fed. 320.]

As counsel have pointed us to no general principle of law impinged upon and to no controlling or persuasive adjudication holding such appointment void, we conclude it was well enough to select a near relative whose business capacity and character are not only unblemished but likely to receive edge and tern-per from blood kinship, regardless of whether he lived in Kansas or on this side of the line. Nearness of kinship is an element to be considered in such appointment. [Middleditch v. Williams, 47 N. J. Eq. l. c. 589; 14 Ency. Pl. & Pr., 1033.] In the Middleditch case the dictum of Lord Brougham in Nalder v. Hawkins, 2 Myl. & K. 243, is cited approvingly, viz.: “The true and just principle which should govern in all such cases ■is this: No discouragement ought to be thrown in the way of persons bona fide suing as next friends, but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the infant’s benefit.”

We perceive no error in striking out paragraph a of the answer.

(b) Was it reversible error to allow the case to proceed to judgment without requiring a bond from the next friend as provided in section 554, Revised Statute’s 1899? Observe, that section does not require a bond whether or no. It only contemplates one to be given by the next friend if the court or officer to whom the application for such appointment is made requires one to be executed to such infant in double the amount claimed in such suit with such securities as shall be approved by the court or officer, conditioned that such next friend shall account to such infant for all money or property which may' be recovered in such suit. Section 555 provides that such bond shall be delivered to such officer before the appointment shall be made, and shall be filed in the office of the clerk of the court in which the suit shall be brought.

There being- an option in the court or officer to require or not to require a bond prior to the appointment of a next friend, it would be most unsound exposition to hold either that the giving of a bond was a jurisdictional fact, or that the unwise exercise of the discretion of the court or of the clerk in that behalf should cast an infant in a meritorious case.

The general doctrine is that a next friend is not entitled to receive the money recovered in an action. [Wood & Henderson v. Claiborne (Ark.), 102 S. W. 219; 14 Ency. Pl. & Pr., 1037.]

It is not necessary for us to hold that a next friend is entitled as of right, on the strength of his mere appointment under our statute, to receive the money proceeds of a judgment and discharge the judgment, or to give an acquittance to a defendant, or to receive the proceeds of the judgment from the infant’s attorneys of record and give an acquittance to them. We will decide such a case, when one is here.' Undoubtedly the next friend might be guilty of lapses, misconduct or negligence in the conduct .of a suit rendering him liable to the infant. A bond would be useful from such a standpoint, if from no other. But it must be admitted that the statutes of this State seem to go further and to contemplate that a next friend on a pinch may come into possession of the property or damages recovered in the suit. The prescribed terms of the bond point that way. Bnt this case does not require that we should so hold, therefore, the question is reserved. If, however, that be the correct interpretation of our statute, then we unhesitatingly say that no court should allow the money or property of an infant plaintiff to pass into the hands of a next friend without the safeguard of a bond. The object of the law being the protection of the infant and the doctrine relating to the appointment of a next friend being borrowed from chancery, the right to require the execution of a bond at any time needed for the protection of the wards of the court is necessarily implied, though'the statute contents itself with a mere reference to an optional bond in advance. It was, accordingly, held in Jones v. Steele, 36 Mo. 324, that the court should have appointed a next friend and approved a bond after judgment and while the case was pending on a motion in arrest. It was held in Temple v. Price, 24 Mo. 288, that a natural guardian ought to be allowed to give bond on his application during the pendency of the suit. See, also, Johnson v. Beauchamp, 5 Dana (Ky.) 70. In Neal v. Spooner, 20 Fla. 38, it was held that it was no concern of a defendant that a bond had not been given by the next friend, since the bond is required only for the protection of the minor in the event of a recovery of money. We think that is the better view. Defendant needs no protection from a bond. It has ample and plain protection from loss. It can pay the money into court and obtain its discharge. It can pay on a fi. fa. to the sheriff and obtain its discharge. On the other hand, if the proceeds of the judgment should pass through the hands of the attorneys for the minor plaintiffs and they (as well they may) become solicitous about their release from liability for handling that money or paying it over, they (without bothering defendant) can look sharply to the authority of the one giving them an acquittance. On top- of it all, the court of its own motion, here or below, because of its inherent power and duty to protect its wards, may order a bond, given by the next friend. To exact a bond in. double the amount from a next friend before commencing a suit for damages for minors, ought not to be held a condition precedent under the discretion lodged in the clerk or court by our statutes, because the exacting of a bond in every case before suing might be a lion in the way of the infant in securing his rights in court, and, therefore, the statute has wisely left the matter open to be settled, as each case may arise, in the sound discretion of the court or officer making the appointment. We can not say such discretion was abused in this instance. Therefore, we are of opinion there was no error in striking out paragraph b of defendant’s answer. It constituted no bar to, and pleaded no matter in abatement of, the suit.

II. Under the third proposition advanced it is insisted that the suit was prematurely brought. In other words, the minors should have waited six months after the death of their parents before suing. By section 2864, Revised Statutes 1899, it is provided that suits may be brought: “First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, ’ ’ etc.

It may be conceded to learned counsel that the right of action is a transmitted right, that such right did not exist at common law and is conferred only by section 2864, supra. It may be conceded also that said section reserves to itself the exclusive power of naming those who could maintain the action, and of fixing the time in which each of the enumerated persons could sue, as contended in the second proposition asserted in their brief.' The eases cited by them abundantly sustain counsel’s contention, but none of them settle the crucial proposition in this case. Here there was no father or mother to- sue. The case proceeds on the theory they were both killed in the same accident. Why grant six months for persons to sue who, having given up the ghost, have no further use for earthly courts and need no aid from laws of men? The father being dead, the right to sue for the mother’s death was transmitted by the statute (not to him, but) to his minor children- by her. The mother being dead, the right to sue for the father’s death was transmitted (not to her, but) to her minor children by him. The very language of the statute presupposes, as a condition precedent to a six months’ wait, that the father or mother, having the right to sue for the first six months, should be in esse. Not being in esse, the minor children may sue under the general principle of law which gives a right of action whenever the same accrues. To put the austere construction on the statute contended for by defendant would be to read into it a provision not only not there by express terms, but excluded by the phrase, if there be no husband or wife. ’ ’

The point is disallowed to defendant.

III. Other propositions asserted by learned counsel overlap each other or are so intimately related that they may be considered under one head. Some of them are ingenious to a degree and are presented with much force and learning. By them it is asserted there is no presumptions the parents perished simultaneously. That the case cannot stand on mere conjecture in that behalf. That there could be no recovery in one count under section 2864, supra, for more than a single death, therefore, the judgment on the third count should be arrested or at least pared down to a single recovery of $5,000. Is there merit in these .contentions on the record before us ? We think not. Because:

(a) While the petition does not expressly allege that the mother and father were killed simultaneously, yet what is said inferentially amounts to that. So, the proof points that way. Here is a fast-running train colliding with another on the same track going the other way, at an hour before dawn when the vital forces run low and sleep may be presumed, as likely. It was not without reason that in pioneer times Indians planned an attack on the cabin of the lone settler just before daybreak, nor is the common notion without reason that the soul of the sick man, in ex-tremis, is prone to part from the body at that hour. The tremendous force of this collision, the wreck of the car, the position of the bodies after death in and by the seat occupied indicate instantaneous and, hence, simultaneous death. The subtleties of the civil law relating to survivorship where parties perish in a common disaster have no place under the facts of this record, nor have they place in courts proceeding according to the course of the common law. [United States Casualty Co. v. Kacer, 169 Mo. l. c. 310, et seq., and authorities cited.] There being no presumption as to survivorship, one way or the other, each case is to be settled on its own facts and, if survivorship be an essential element in the case, the party asserting it carried the onus. If, now, the burden was on plaintiffs (which we do not hold) it would not be going too far to hold they successfully carried that burden.

(b) But we do not deem the questions considered in paragraph a under this head material. The real and turning,,question relates to correct pleading rather than to a construction of the terms of the Damage Act. That act provides a penalty by way of compensation to the minor children in the sum of $5,000 for each parent and the vital question is this: If there be two causes of action arising out of one injury, to-wit, the simultaneous wrongful death of both parents, is it a fatal defect to commingle these canses of action in one count, — is it reversible error to allow a judgment for $10,000 for the death of both parents under that count?

In the observations to be made on that question we shall assume it was proper to sue for the death of both parents in one suit, since the law does not look with favor on splitting up causes of action whether they arise for one entire injury from á tort or for the violation of one entire right under a contract. [Stickford v. St. Louis, 75 Mo. 309; Union R. R. & Transportation Co. v. Traube, 59 Mo. l. c. 362; Perry v. Dickerson, 85 N. Y. 345; Baumhoff v. Railroad, 205 Mo. l. c. 269, et seq.] We shall assume, further, that it would have been better pleading to have stated the facts essential to recover for the death of each parent in a separate count — in other words, plaintiffs might better have stood' on their first and second counts. Yet, assuming the foregoing propositions to be true, we cannot allow the point to defendant under the facts of this record. And this is so because the allegations of the third count are not antagonistic and self-destroying. At the utmost, the only just criticism to be leveled at the third count is that it improperly commingled two causes of action — not that it states none. Such defect may be waived by answering. We have been so lately over the question that it would be cumbering the opinion to rediscuss it. We can add nothing to what was said in Jordan v. Railroad, 202 Mo. 418, and in White v. Railroad, 202 Mo. 539, on that point, and shall not try to do so. On the authority of those cases, it must be held that defendant waived the defect by answering.

Nothing said in Casey v. Railroad, 205 Mo. 721, militates against this holding. In that case and in Casey v. Railroad, 116 Mo. App. 235, plaintiffs attempted to unite causes of action arising under different sections of the Damage Act, and, not only so, but undertook for purposes of their own to remit a portion of the fixed, entire statutory penalty provided by section 2864, supra. Not so in this case. Here, plaintiffs seek the recovery of the entire fixed penalty provided by statute for the death of each parent. They do not commingle causes of action arising under different sections of the Damage Act and which may call for different lines of proof. To' the contrary, they commingled causes of action arising under the same section of the Damage Act and the proof sustaining the one necessarily sustained the other. In the Casey case we affirmed the holding of the St. Louis Court of Appeals to the effect that plaintiffs could not split up the one entire statutory death penalty provided for compensation for a wrongful death. Doubtless, by the same token, we would hold that plaintiffs could not add to such fixed statutory death penalty, hut in this case there is neither an adding to nor a splitting up, and, hence, the doctrine of the Casey case is not applicable.

It results that the motion to elect came too late and was properly overruled with the motions for a new trial and in arrest, and defendant’s instruction relating to the third count.

Defendant’s negligence being admitted, and there being no reversible error in the trial, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    W. R. DICKERSON et al. v. B. K. DICKERSON et al., Appellants.
    Division One,
    April 13, 1908.
    1. REMAINDERS: Presumption. The law favors vested remainders, and where there is any reasonable doubt as to whether the estate created is a vested or contingent remainder the courts resolve the doubt in favor of a vested remainder. But in this case the will clearly created a contingent remainder.
    2. -: Contingent: To Surviving Children. By the will the testator gave to his wife the use and income of his dwelling house and the two hundred acres of land in controversy, “to have and to hold the same for her during the term she may remain my widow. If she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death the said farm to be divided between my surviving children, and grandchildren if any whose parents are dead.” Held, that the will created a contingent remainder in the children, which vested in the children alive at the wife’s death, and a child who died before she did leaving no children of his own took no interest in the estate.
    3. -: -: -: When Estate Vested. Where the will gave a life estate to the widow and added that “at her death said farm shall be divided among my surviving children,” it did not vest the estate in such of the children as were living at the time the will was made, or in such of them as survived the testator, but in those who survived the widow. And if a child died before the widow, he took nothing under the will.
    4. -: : -: Cloud Upon Title. Where a son who took no interest under the will in the land, nevertheless conveyed his supposed interest by deed, the court, at the suit of the real owners, will set the deed aside as a cloud upon the title.
    Appeal from Macon Circuit Court. — No». Nat. M. Shelton, Judge.
    Affirmed.

      Guthrie & Franklin and Dysart & Mitchell for appellants.
    Under the will of P. II. 'T. Dickerson, George B. Dickerson, his son, took a vested remainder "in the land in question in this suit that he could convey at pleasure, and his deed, dated March 7, 1902, passed the title to said land to the parties therein. • The courts favor strongly that construction which makes a remainder a vested rather than a contingent remainder. Tindall v. Tindall, 167 Mo. 218; Gates v. Seibert, 157 Mo. 254; Chew v. Keller, 100' Mo. 362; 2 Underhill on Wills, pp. 228, 229; Tindall v. Miller, 41 N. E. 535; Byrnes v. Prance, 131 Mo. 639; 4 Kent’s Commentaries (2 Ed.), 228, 229; Tiedeman on Real Property (2 Ed.), par. 397.

      Campbell é Ellison and Joseph Park & Son for respondents.
    The will of P. IT. T. Dickerson created a remainder • in all of his children and grandchildren surviving his wife. De Lassus v. Gatewood, 71 Mo. 371; Rinquist v. Young, 112 Mo. 25; Aubuchon v. Bender, 44 Mo. 560; Emison v. Whitelsey, 55 Mo. 254; Owen v. Eaton, 55 Mo. App. 567; Wombles v. Young, 69 Mo. 117. If the grantor dies in the lifetime of the life tenant and before the contingent remainder becomes a vested one, the grantee takes nothing by the deed. Emmerson v. Hughes, 110 Mo. 627; Godman v. Simmons, 113 Mo. 122.
   WOODSON, J.

— This cause originated in the circuit court of Adair county, and was instituted by plaintiffs against the defendants to have a quitclaim deed made by George B. Dickerson to the defendants, purporting to convey certain real estate, set aside and for naught held. The plaintiffs and defendants are the only heirs at law of said George B. Dickerson, deceased; and plaintiffs and defendants, including said George B. Dickerson, were the children of one P. H. T. Dickerson, with the exception of Walter R. Dickerson, who is his grandson and a son and only heir at law of Joseph Dickerson, deceased.

The petition stated that at the time said deed was executed George B. Dickerson was non compos mentis, and that the deed was procured through a conspiracy, fraud, and undue influence of .defendants exercised over the mind of George B. Dickerson, and that it had never been delivered by the deceased.

The answer, in effect, was a general denial.

The cause was submitted to the court on the pleadings and evidence, and its finding was against the plaintiffs and in favor of the defendants upon the issues, and it decreed that the deed’ conveyed to the defendants all the interest that said George Dickerson had in the real estate therein described. To that action of the court, the plaintiffs saved no exceptions. But the court did not stop there; but proceeded and decreed that said George B. Dickerson took only a contingent interest instead of a vested interest in the two hundred acres described in said deed, under the will of P. H. T. Dickerson, which is as follows:

“Know all men by these presents: That I, P. H. T. Dickerson, of the county of Adair, and State of Missouri, being in good health and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me made at any time heretofore. And as to my worldly estate and all the property, real, personal or mixed of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to-wit:

“First. My will is, that all my just debts and funeral expenses shall by my executors hereinafter named be paid out of my estate as soon after my decease as shall by them be found convenient, also my executors shall purchase out of the estate a monument to be placed at my grave in case there is none there.

“Item. I give, devise and bequeath to my beloved wife, Catherine I. Dickerson, all my household furniture. I also give to her the use and income of my dwelling-house and land of two hundred acres, being and situated in Wilson township, county of Adair and State of Missouri, to have and to hold the same to her for and during the term that she may remain my widow. If she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death said farm to be divided be>tween my surviving children, and grandchildren if any whose parents are dead.

“All the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at my decease, I give, devise and bequeath to be equally divided between my wife Catherine I. Dickerson and my children, excepting James G. Dickerson, he, the said James G. Dickerson, two hundred dollars less than the other heirs.

“And, lastly, I do nominate and appoint my wife, Catherine I. Dickerson, and my son, W. H. Dickerson, to be the executors of this my last will and testament.”

The record discloses the fact that George B. Dickerson departed this life on March 7th, 1902, sometime previous to the death of his mother, Catherine I. Dickerson.

Upon that state of facts, the court below, found and decreed that the contingent interest of George B. Dickerson in and to the land in question, acquired under said will, became extinct upon his death, and that the quitclaim deed mentioned conveyed no interest in said lands to the defendants, and adjudged that it be cancelled and held for naught. From that judgment defendants have duly appealed to this court.

I. P. H. T. Dickerson was the common source of title, and through whom all the plaintiffs and defendants claim title to the land in controversy. All claim title through his will, and subject to the life estate devised thereby to his widow, Catherine I. Dickerson; but as she had departed this life prior to the institution of this suit, her life estate is not involved in this litigation.

The defendants contend that George B. Dickerson took a vested interest in the two hundred acres of land under said will, and that he, by said quitclaim deed, conveyed that interest to them, and that they are the lawful owners thereof in fee; while, upon the other hand, the plaintiffs claim that the will only gave George B. a contingent interest in said land, and he having died before his mother, the contingent interest conveyed by said quit-claim deed to defendants became extinct, and that said deed is a cloud up on the title.

That is the sole contention between the plaintiffs and defendants. If the will gave to George a vested interest, then the judgment is erroneous and should be reversed; but if it gave him only a contingent interest, then the judgment is for the right party and should be affirmed. In order to determine that proposition correctly, we will have to examine the will and gather therefrom the intention of the testator. That intention, whatever it may be, must prevail.

The clause of the will out of which this litigation grows is in the following words: “I also give to her the use and income of my dwelling-house and lands of two hundred acres, being and situated in Wilson township, county of Adair and State of Missouri, to have and to hold the same to her for and during the term that she may remain my widow; if she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death said farm to be equally divided between my surviving children and. grandchildren if any whose parents aré dead.”

The law favors vested remainders, and where there is any reasonable doubt as to whether the'estate created is a vested or a contingent remainder, the courts will resolve that doubt in favor of the former and against the latter. It is the policy of the law, and it holds that estates vest at the earliest possible period, unless there is a clear manifestation of a contrary intention on the part of the testator. [2 Washburn on Real Property (6 Ed.), secs. 1537, 1538, 1544; Chew v. Keller, 100 Mo. 362.]

But notwithstanding that presumption, the plaintiffs have assumed the laboring oar and have undertaken the burden of convincing us that it was the intention of the testator, P. II! T. Dickerson, to create a contingent remainder in favor of his children, and not a vested .remainder.

This brings us to a consideration of the rules of law by which the courts must be governed in the determination of what are contingent remainders.

Mr. Washburn, in his excellent work on Beal Property, defines a contingent remainder in the following language: “A contingent remainder is one whose vesting or taking effect in interest is, by the terms of its creation, made to depend upon some contingency which may never happen at all, or may not happen within a requisite prescribed time, by reason whereof its capacity of vesting or taking effect in interest may be forever defeated. Or, in the language of another, it is one ‘which is limited to a person who is not ascertained at the time of the limitation, or which is referred for its vesting or taking effect in interest to an event which may not happen till after the determination of the particular estate, or upon the happening of some uncertain and doubtful event, or where the person to whom it is limited is not ascertained or yet in being.. Until the contingency has happened, the- remainder is rather a possibility in its character than an estate; although it has become a familiar quality of an estate, to understand and apply which involves' much nice learning. It is always an executory interest from its. very nature. ’ ’ [2 Washburn on Real Property (6 Ed.), sec. 1555.]

The same learned author in the succeeding section, 1556’, gives many illustrations of the rule above-announced, and among them are the following: ‘ ‘ Suppose an estate be limited to' A for life, remainder to the oldest son of B, who then has no son. The contingency in that ease is that of a son being bom to B. If he has a son, the moment he is born the remainder becomes vested in him, and ceases to be contingent. If the uncertain event fails to happen at all, the remainder fails for want of a person to take it when the particular estate determines, and the estate reverts at once to the grantor. So, where there was a devise to a wife for life, and at her death to be divided to and among such of testator’s children as should then be living, share and share alike, it was held a contingent remainder; if one of these died in her lifetime, his share- was lost, although he left a child. The latter took nothing. Another instance would be that of an estate to A for life; and if B outlived him, then to B in fee. There is here no contingency about the person who is to take, but the contingency is in the event of his outliving A; for if he die before A, though all along ready to take the remainder if it falls in, the remainder as such goes to no one. If A die first, the remainder not only becomes vested in interest but at once in possession. Another and familiar illustration would be where this estate was limited to A for life, remainder to B after the death of A and H. Here B is a known person in esse, ready at all times to take the remainder. It is certain that A will die, and that H will also. The contingency is in the doubt whether H will die before A. If he does, the grant is thereupon converted into a simple limitation of an estate to A for life, with a remainder to B, and is a vested one. But if A die first, B’s remainder is wholly gone, because he can only take it when A and H are both dead; and by the death of A before H, the particular estate in A determines before B can take, and, consequently, his remainder fails, and the estate reverts to the grantor. And to these may be added, for further illustration, a conveyance in trust for the grantor for life, and after his death to A, when and provided he attain the age of twenty-one years. The interest of A was held to be a contingent remainder until he arrived at that age.”

Other equally eminent authors define a contingent remainder as follows: “Where the estate in remainder is limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event.” [2 Black. Com., 169.]

Mr. Bingham, in his able work on Descents, at page 125, thus defines it: “A contingent remainder is that part of an estate in fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some particular person or persons is provided to- go to some other person or persons of two or more named, which of the two or more is left uncertain, and is to be fixed and made certain by succeeding events. The remainder itself is certain, but the person who is to have it is uncertain until it is determined by the events named. ’ ’

If we will bear in mind those definitions and illustrations of contingent remainders, we can more readily see and understand the principle upon which the fol- • lowing decisions are predicated, and which hear a close resemblance to the ease at bar.

The first case I will refer to is that of Thomson v. Ludington, 104 Mass. 193. The will in that case was as follows.-

“I give, devise and bequeath to my present wife, Julia Ludington, all my estate, real, personal and mixed, to and for the uses and trusts following, to-wit: In trust to use and enjoy the same as she now does, she taking care of and maintaining my children, so far as the same will maintain them during the period of her widowhood, and at her decease or marriage then further in trust to divide the same equally to and among such of my children as shall then be living, share and share alike. The names of my said children are: George C., Ann L., Lucy M., Francis A., and Caroline E., to them and to their heirs and assigns forever. ’ ’

“The widow survived, unmarried, and signed the deed, as did all the children named in the will, except Ann L., who died some years after the testator, leaving one child, Lucy O. Hapgood, who was born a few weeks before the testator’s death. If Lucy G. had any interest in the premises, judgment was to be for the plaintiff, otherwise for the defendants.”

In passing upon that case, Mr. Justice Gray said: “The devise at the death or marriage of the widow ‘to and among* such of my children as shall then be living, share and share alike,’ gives a contingent "remainder to such of the children as shall be living when the contingency of such death or marriage happens. In the next clause, the testator gives the names of my said children, ’ that is, of all those already described as my children;’ for he could not foretell which of them would be living at a future time; and. this clause does not extend the effect of the previous one, by which such of them only as shall be living upon the happening of the contingency are to take. The further words ‘to them and their heirs and assigns forever, do not describe the devisees, but the quantity of their estate, or, in other words, merely show that the estate to be taken by virtue of the previous words is an estate in fee. The daughter who died after the testator and before his widow therefore took no estate, and none passed to her child.”

The same court in the case of Olney v. Hull, 21 Pick. 311, held that where the devise was to the widow during her widowhood, and with this clause added: “Should my wife marry or die, the land then shall be equally divided among my surviving sons,” the remainder to his sons was contingent until the marriage or death of the widow; and that upon her death the estate vested in a son who was then living to the exclusion of the heirs of another son who died before the widow but after the death of the testator; and in so holding, Mr. justice Mokton said: “He says, ‘Should my wife marry or die, the land then shall be equally divided among my surviving sons.’ The time when the estate was to be divided among the sons is certain and definite. It was when the intermediate estate terminated by the death or marriage of the tenant. Among whom was it to be divided? Not those who survived any prior event, not those who survived the father, but those surviving that particular event — those surviving the death or marriage of the widow. ’ ’ •

Judge Napton said, in the case of Emison v. Whittlesey, 55 Mo. l. c. 258, involving a similar question : ‘ ‘ This was a conveyance to the mother, and upon her death the remainder was conveyed to her children who survived her, and the children of such of her children as were dead, at her decease. At the time of the execution of the deed it was impossible to say that any one was in existence who would take the remainder, No one could tell that any of the children would survive the mother. It was, therefore, a contingent remainder. ” .

And lastly, but not least in point, with great clearness and much force, Judge Sherwood in the case of De Lassus v. Gatewood, 71 Mo. l. c. 380 and 381, speaking for the entire court in the adjudication of a similar will, said: “Let us apply in the present instance the principle to be deduced from the foregoing authorities and cases cited. Here the testator says: I give and bequeath unto my beloved wife, Eleanor DeLassus, all my property, etc., etc., to have and to hold at her will and pleasure during her natural life or widowhood. And, at the death or marriage of my said wife, it is my will that all my estate, heretofore bequeathed, shall be equally divided between my children that are alive, or their bodily children, to-wit: (naming the children) in equal shares or proportion. The question at once arises, to what period of time do the words ‘that are alive’ refer? Obviously, I think, to the death and marriage of the wife, and I am of this opinion for these reasons : One, That the will speaks from the death of the testator and not from the time of its execution. Others, That it would be most unreasonable to suppose that the testator having mentioned his children by name did not know that they were then alive. And yet we must indulge such unreasonable supposition if those words are to be referred to the time the will was executed, and not to a future period when the death or marriage should occur. If those words refer to the time the will was being drawn, then they are absolutely meaningless, and utterly destitute of any intelligent expression. If, on the contrary, we judge them to refer to the future event of either death or marriage, they become at once significant. And it would seem beyond question, both from the grammatical construction of the sentence, as well as from other considerations already adverted to, that those words can be referred only to the event in the future which was to cause the termination of the particular estate, and the commencement of that in remainder. When is the estate to he divided? At the death or marriage, etc. Among whom divided? The children ‘that are alive,’ or their bodily children. Alive when? When the division of the estate is to occur. It appears very plain that the above are the only answers that can with any show of reason be returned to the foregoing questions. If this be true, then the will under consideration is to be held as bearing the same meaning as if the words composing it were transposed and it read thus: It is my will that all my estate heretofore bequeathed shall, at the death or marriage of my said wife, be equally divided between my children that are alive, or their bodily children. If these views are correct, if the words ‘that are alive’ refer to the future, refer to the time when the particular estate was to cease, and the estate in remainder was to take effect, then it must needs follow that those words are the legal equivalents of ‘then living,’ in which ease they come within the rule of the authorities already quoted, and the remainder created by the will must be held a contingent, and not a vested one; for, until the death or marriage of the tenant of the particular estate, it was impossible to ascertain who of the children of the testator, or their bodily children, would be alive to take in remainder. ... As the remainder in this case was contingent, neither Felix M. DeLassus, nor his bodily child, William A., had any descendible interest which could pass to the plaintiff (Bingham on Descents, 222, 233), and so she cannot maintain her action.”

We will now consider the will in question viewed in the light of the foregoing authorities. A similar question may be propounded here to the one asked by Judge Sherwood, in the DeLassus case, supra. To what period of time do the words “my surviving children and grandchildren, if any whose. parents are dead,” refer? Clearly, in my judgment to the date of the death or marriage of the testator’s widow. A will becomes effective from and after the death of the testator and not, like a deed, from the time of its execution. And, as was said by the court in the ease last mentioned, “It would be most unreasonable to suppose that the testator having mentioned his children by name did not know that they were then alive. And yet, we must indulge such unreasonable supposition, if those are to be referred to the time the will was executed and not to a future period when the death or marriage should occur.”

And if those words referred to the death of the testator, why did he provide in the will that upon the death or marriage of his widow, the farm should then go to his children, and further provide in the same clause of the will that the land should at that same time be divided equally between his “surviving children, and grandchildren if any whose parents are dead?” If it was the intention of the testator to give the farm to such of his children as were .living at the time of his death, then we are unable to see what he meant by the use of the words “and at her death said farm to be equally divided between my surviving children and grandchildren, if any whose parents are dead.” Conceding the testator, at the time of his death, knew which of his children were then living, yet neither he, because of his death, nor any other person could tell which of his children would be dead and leave living children at the time of the death or marriage of the testator’s widow. And yet, by the express terms of the will the estate was not to terminate until the happening of one of those events, and at the same time the remainder was to pass to and be divided equally between his children and grandchildren then living. There was not only an uncertainity as to which of his children would be alive at the time of the termination of the particular estate; "bat there was also a further contingency which could not he foreseen, and that was which, if any, of his children would he dead, leaving surviving children at the marriage or death of the widow. If, upon the other hand, those words refer to the death or marriage, they become of much significance by making definite and certain the persons who are to take the remainder after the termination of -the particular estate.

If they refer to any other time or event, then they are utterly meaningless and wholly without force or effect. Such a construction should not be placed on a will. One of the cardinal rules of construction is to gather the intention from the four corners of the instrument and give full force and effect to each and every part of it, when it is possible to do so. [Turner v. Timberlake, 53 Mo. 371; Allison v. Chaney, 63 Mo. 279; Reinders v. Koppelman, 94 Mo. 338; Preston v. Brant, 96 Mo. 552; Chew v. Keller, 100 Mo. 362.]

The foregoing construction is borne out by asking the question, when is the farm to be divided? The will says at the widow’s “death.” Among whom is it to be divided? According to the will, “equally divided between my surviving children, and grandchildren if any whose parents are dead.” Surviving when?' At the time the division of the estate is to be made — that is, upon the marriage or death of the widow.

The provisions of the will in the case at bar are almost identical in words and meaning with those of the will in the DeLassus case, supra, as transposed by Judge Sherwood on page 381; so much so that we are unable to differentiate between the meaning of the two. In our opinion that case is decisive of this.

The learned counsel for defendant, however, contend with much, earnestness and force that the estate was to vest in the children of the testator at the time ■of his death, and not at the time of the marriage or death of his widow, and cite the following authorities in support of their contention: Tindall v. Tindall, 167 Mo. 218; Gates v. Seibert, 157 Mo. 254; Chew v. Keller, 100 Mo. 362; 2 Underhill on Wills, pages 228-9; Tindall v. Miller, 41 N. E. 535.

We have carefully read all of those cases, and we are of the opinion that they contain nothing which announces a different doctrine from the views above expressed. The language of the instrument involved in those cases is so radically different from that used in the will now under consideration, that the law applicable to them has no application to the case at bar.

We are, therefore, of the opinion that the remainder given to the testator’s children and grandchildren was a contingent and not a vested, remainder, and that the contingent interest devised to George B. Dickerson by the will became extinct by virtue of his having departed this life prior to the death of the widow; and, consequently, the quit-claim deed in question became inoperative and void upon his death. Had he survived the widow, then, clearly, the deed would have passed his estate in the lands to the defendants.

We are, therefore, of the opinion that the deed is inoperative, null and void, and casts a cloud upon the title to the land in controversy; and that it should be declared null and void and of no force or effect; and that the judgment should be affirmed, and it is so ordered.

All concur, except Lamm, J., dubitante.