author: BOND, C. PER CURIAM.

text:
    WARREN A. BURNET and SAMUEL F. BURNET, Minors, by their Curator, Appellants, v. GEORGE BURNET and MARY OUTTEN.
    Division One,
    June 29, 1912.
    1. WILLS: Life Estate with Power of Disposal for Use and Comfort of Life Tenant. A clause of Eliza Andrews’s will read: “I give, devise and bequeath the residue of my estate to m,y said sister Sarah, and it is my desire that whatever of said, residue may be left undisposed of at her death shall go to her descendants per stirpes. In the .event that I survive my said sister Sarah I give, etc., said residue ... to her children. A, B and C, one-fourth each, and the remaining one-fourth to'I> and E, children of her deceased son F.” The sister Sarah outlived the testatrix. The residuary estate combined both realty and personalty and in it was a note for $2300 secured by a second deed of trust on certain property. Sarah bought in the prior outstanding note for $450 and purchased the property at trustee’s sale, paying therefor by allowing a credit on the note. She then executed and delivered a deed purporting to convey the land in fee to her son A, a volunteer. ■ Held, that the will gave a life estate to the sister Sarah, with full power to dispose-of the property for her use, comfort or enjoyment, or any other purpose incident to those ends, but with no power to will it or give it away, and her son A, being a volunteer, is charged with notice of her want of authority so to deed to him the property -obtained at said trustee’s sale.

      2. -: Construction: Intent of Testator. A will must be construed according to the intent of the maker, unless that intent runs counter to an inflexible rule of law or public policy.
    S. -: -: Life Estate by Implication. A life estate may be created, without using express words, by implication from a will, or by language of equivalent meaning. Words, •expressions or clauses, inferential only in import, contained in a will devising in general or indefinite terms real or personal property, with a limitation over after the death of the first taker, are sufficient to create a life estate in the immediate devisee and uphold the remainder.
    4. -: -: Life Estate: Power of Disposal. Where a life estate is created by will, whether by implication only or in express words, with ■ a remainder over, the power of the life tenant to defeat the remainder depends upon the exercise of a superadded power of disposition given by the will, and such power will be strictly construed and confined to its exact intendment, and any attempted exercise thereof beyond its just scope will not affect the rights of the remainderman.
    Appeal from St. Louis City Circuit Court. — Hon. J. E. Withrow, Judge.
    Reversed and remanded (with directions).

      8. T. 0. Smith and Thomas 8. Meng for appellants.
    (1) The will of Eliza F. Andrews vested only a life estate in Sarah Burnet as to the property in controversy. Munro v. Collins, 95 Mo. 33; Bramell v. Cole, 136 Mo. 212; Smith v. Bell, 6 Peters, 84. (2) Even if Sarah Burnet had a power" of disposition, the ■conveyance to George Burnet was not a valid exercise of the power. Harbison v. J ames, 90 Mo. 425; Buford v. Aldridge, 165 Mo. 425; Garland v. Smith, 164 Mo. 16. (3) An added power of disposition does not convert a life estate into a fee or absolute title, whether the life estate is created by express terms or by implication. Armor v. Frey, 226 Mo. 643.

      Robert L. McLaren and Will Brown for respondents.
    (1) Sarah P. Bnrnet acquired an absolute estate in the property given to her by the tenth clause of the will of Eliza P. Andrews. Roth v. Rausehenbush, 173 Mo. 582; Green v. Sutton, 50 Mo. 186; Gregory v. Cow-gill, 19 Mo. 416; Rubey v. Barnett, 12 Mo. 3; Underwood v. Cane, 176 Mo. 1; Chew v. Kellar, 100 Mo. 362. (2) Whether Mrs. Bnrnet acquired an absolute-estate or not, the will conferred upon her the power to dispose of the property during her lifetime and her esercise of that power in this case is valid. Graves v. Perry, 197 Mo. 550; Russell v. Eubanks, 84 Mo. 88.
    STATEMENT.
    This is an action to quiet title submitted to the trial court upon an agreed statement of facts, in substance, to-wit: That Eliza F. Andrews of St. Louis, Missouri, made her will and added a codicil thereto on the 14-th day of June, 1899; that she died in 1901; that the tenth clause of her will was, to-wit:
    ■ “I give, devise and bequeath the residue of my estate to my said sister, Sarah P. Burnet, and it is my desire that whatever of said residue may be left undisposed of at her death shall go to her descendants: per stirpes. In the event that I survive my said sister Sarah, I give, devise and bequeath said residue of" my estate to her children, George Burnet, Jr., Henry L. Bnrnet, and Mary P. Outten, one-fourth each, and the remaining one-fourth to Warren and Samuel Bur-net, children of her deceased son, Samuel P. Burnet, Should any of said children, either of my sister or of her deceased son Samuel F., die before any right -vests-in them under this tenth clause of my will, the share-of every such deceased child shall go to its issue, if any, and in default of such issue, then to the descendants of my said sister Sarah per stirpes.”

      That Sarah P. Burnet died in June, 1905, leaving a son, George Burnet, and a married daughter, Mary Outten, and two grandchildren, Warren A. Burnet and Samuel F. Burnet, sons of- her deceased son, Samuel F. Burnet; that her son, Henry L. Burnet, died in 1903, leaving no descendants, and the parties to this cause are' his only heirs.
    This suit was originally instituted by the curator of the two grandsons, Warren A. Burnet and Samuel F. Burnet, of the said Eliza F.-Andrews, on the 2d day of August, 1905, against George Biirnet and Mary Outten, son and married daughter of the said Sarah F. Burnet. Defendant George Burnet has since died, ■and the cause has been revived against his heirs, at law; and the two plaintiffs having reached their majority have come in under their own names. That the land in controversy in this action is controlled by the terms of said clause of the will, for the reason that a note for $2300 and interest, dated February 23, 1901, was a part of the property devised under said «lause of the will, and said note was secured by deed ■of trust on the real estate described in this petition, which real estate was also subject to a prior deed of trust for a note for about $450 and interest, held by a stranger; that the said Sarah F. Burnet, devisee in said clause of the will, used a portion of the residuary estate in purchasing said outstanding note for $450, and subsequently enforced a sale under the deed of trust given to secure the $2300 note, and became the purchaser of said land at the trustee’s sale, and paid therefor- by allowing a feredit on said note for the amount bid at such sale; and being thus possessed of the title of the land in dispute, she, on the 25th of January, 1905, executed and delivered a deed purporting to convey it in fee to her son, George Burnet, then .-alive, who took possession of. said land; that the consideration named in her deed was five dollars. The agreed statement of facts is further, to-wit:

      “11. That George Burnet (his heirs now) are, now in possession of said real estate, claiming to own, the same in fee simple, and are and have been collecting and receiving the rents and profits thereof since the date of said conveyance, and deny that plaintiffs or defendant Mary Outten have any interest or title in the said real estate.
    “12. Defendant Mary Outten approved of said conveyance to George Burnet and now approves and ratifies said conveyance by Sarah F. Burnet to said George Burnet and claims and demands no right, .title, Interest or estate in said real estate against the heir's of George Burnet, so that the question is whether under the above facts the plaintiffs have each a one-sixth interest in said land and the rents and profits thereof, as aforesaid.
    “13. If they have, defendant George Burnet, then alive, agrees to furnish to them a full and true statement of the rents and profits thereof since said conveyance to him, and that a money judgment for one-third the net total amount thereof may be rendered against him, in favor of said plaintiff, and be a lien, ■on his share in said land.”
    The petition set forth that the two plaintiffs were then minors and were the children of a deceased son of Sarah F. Burnet, and alleged that they were entitled, as his heirs, by representation, to one-sixth of the real estate described in the petition, which, it i,s further , alleged, the said Sarah F. Burnet had acquired in-the manner above stated and became a life tenant thereof ; under the terms of the residuary devise to heijin-. clause ten of the will of Eliza F. Andrews; that the , said George Burnet, then living, was in possession .of the said estate, and claiming to own the same in fee, and was collecting the rents and profits thereof since the death of the said Sarah F. Burnet; and denied the right of plaintiffs to any interest or title in said real estate. The petition prayed fon an ascertainment and determination of the title and interest of plaintiffs and defendants, respectively, in said land, and for a decree of one-sixth interest therein to each of the plaintiffs, and that each of the defendants be adjudged to own an undivided one-third interest therein; that an accounting be had to determine the rents and profits received by said George Burnet since the death of the said Sarah F. Burnet, and that the amount of the interest of plaintiffs under such accounting be charged as a lien against the interest of George Burnet; and for other and further relief. To this petition the defendant George Burnet (then alive) filed an answer containing a general denial, except certain admissions of the statements in the petition as to the death of Eliza F. Andrews and Sarah F. Burnet and as to the heirship and relation of the parties to the suit. The answer further set up the method by which Sarah F. Burnet acquired title to the specific land in dispute, and alleged that she had thereafter conveyed the same to the defendant, as she was entitled to do by virtue of the vestiture in her of a fee simple title to the property described in clause ten of the will of Sarah F. Andrews. The defendant Mary Outten answered, separately, in substance, that under clause ten of said will the property therein devised belonged absolutely to Sarah F. Burnet, who during her lifetime conveyed the same to defendant George Burnet, and that she, Mary Outten, disclaimed any interest therein.
    The cause was submitted to the court on the pleadings and the agreed statement of facts on the 22d of April, 1907, and thereafter, on the 13th of May, judgment was rendered in favor of defendants. After the overruling of a motion for a new trial, plaintiffs perfected their appeal to this court.
   OPINION.

BOND, C.

I. The question presented,by this appeal is the meaning of the testatrix as expressed in the tenth clause of her will. The subject-matter of the devise contained in that clause was personal and real estate. When it was made the testatrix had no direct descendants, but had a sister, Sarah F. Burnet, who was the mother of three living children and the grandmother of the two plaintiffs, whose father, the son of said Sarah F. Burnet, had died, leaving plaintiffs his only heirs. These facts were in the mind and purpose of the testatrix when the tenth clause of her will was drawn. That she was alive to these ties of blood and that she intended to make just provision for each of the persons so related to her is plain, for she disposed of the “residue of her estate” upon two assumptions: First, that she should be outlived by her sister; second, that she should survive her sister. In both contingencies she, expressly, gave her estate to said niece and nephews and two sons of a deceased nephew. In the former case she devised to them “whatever of said residue may be left undisposed of at the death” of her sister to whom she devised it in case she should be living when the testatrix was dead. In the other case she devised to the same persons “the residue of her estate” as it should exist at her own death. These specific persons were thus kept within her testamentary intent, and all provided for by name, whether her estate should pass under the one or the other provision of her will. The conclusion is unavoidable that she intended them and each of them, or their descendants, to take either the whole residue of her estate at her death, if her sister was then dead, or what should “be undisposed of” at the sister’s death in case her sister was alive at the death of the testatrix.

When the intent of its maker is discovered, the will is solved, unless that intent runs counter to an inflexible rule of law or public policy. In the case at bar the testatrix, in simple terms incapable of other meaning, stated her intention to give directly — if she survived her sister — to the descendants of her sister all of the property referred to in clause ten of her will, or to give indirectly to the same persons what was “left undisposed of ” if the sister survived to take under thfe preceding devise to her. The latter happened. Hence, it is necessary to determine whether the plain intent of the testatrix to give the descendants of her sister “the property left undisposed of” at the sister’s death can he carried out under the law governing, the making of wills. To answer that question we must determine, first, whether the devise to Mrs. Burnet was a life estate hy implication from all the terms of the will; second, if so, whether her deed of gift to one of her children exceeded the limits of any power to dispose of the property impliedly arising from the language of the will. There was no express grant to her of a life estate nor any express power given to dispose of the property devised to her. The power to create a life estate, without using express words, but hy implication from the terms and clauses of the will, or by language of equivalent meaning, is no longer an open question in this State. The proposition was so logically and exhaustively considered hy Marshall, J., speaking for this Division, that it has not been questioned since that ruling and after the array of prece- • dents there cited, to which reference is here made. [Cross v. Hoch, 149 Mo. l. c. 343-344; Walton v. Drumtra, 152 Mo. l. c. 507, opinion hy Marshall, J., concurred in hy a majority of the court, overruling Cornwell v. Wulff, 148 Mo. 542; Roth v. Rauschenhusch, 173 Mo. l. c. 591; Armor v. Frey, 226 Mo. l. c. 669-670.]

That words, expressions, or clauses, inferential only in import, contained in a will devising in general or indefinite terms real or personal property, with a limitation over after the death of the first taker, are sufficient to create.a life estate in the immediate dev-, isee and uphold the remainder, has been recognized by statute and repeatedly decided in this State. The statute relating to wills declares such devises can only convey a fee simple to the first devisee, when the will contains “no expressions whereby it'shall appear’.’ that “an estate for life only” was' devised in the first instance nor any “further devise” to take effect after the death of the devisee to whom the estate was first given. [R. S. 1909, sec. 579.] That ■statute was enacted to prevent the conclusion, as a matter of law, that devises containing the above •quoted features must vest a fee simple in the devisee and destroy the limitation over. Its necessary effect is, in the excepted cases, to leave it to the courts to determine the nature and extent of the interests and •estates devised, by an interpretation of the will, as a whole, under the rules prescribed by law to ascertain the intent of the testator. If it should turn out therefore that the intent of the testatrix was in the case at bar by the terms used in her will, to create a remain-, •der in the children and descendants after a life estate to her sister, then it is obvious such intent would not ■offend any rule of law or principle of public policy, since the statute leaves the court free to gather the intent of the makers of wills in all cases which, like the present one, fall within its exceptions.

Looking at the clause of the will in the light of its language, the situation and relation of the parties, and the rulings made in similar cases in this State and elsewhere, no doubt will exist as to the intentions of the testatrix or their legal consequence.

The motive and object of the will of Mrs. Andrews as shown on its face was to provide for all of her next ■of kin. These were her sister and descendants of her ■sister. Her sister, like herself, was advanced in years. The descendants of her sister at the making of the will were three adult children and two grandchildren representing a deceased son of the sister. It was then problematical by reason of the ages of both whether. she or her sister -would survive the other. She prepared for either event by devising her estate, or what should remain of it, to the descendants of her sister in any case but with a prior devise to the sister in case her sister should be living when the will took effect.- This intention on the part of the testatrix is unmistakable. It must prevail, and the limitation over upheld, and the estate given to the sister held to be one for life, unless the testatrix has thwarted her own intention by the language of the will. Defendants (respondents) insist she has done this, and as the sole basis of their contention refer to the words descriptive of the property devised over, to-wit: “Whatever of said residue may be left undisposed of at her (the sister’s) death shall go, etc.” They claim these words necessarily imply power in the sister of absolute and unlimited conveyance by sale, gift, any method of transfer, or testamentary .disposition, and that therefore their use in the will vested a fee simple title in the sister which defeated any limitation thereafter. Defendants cannot urge-any other theory for the vesting of a fee simple title-in the sister, for there is no express power given to her in the will to dispose of the property devised to-her; and the law is clear that no implied power so to-do, can arise from the mere grant to her, of an estate in terms sufficient to carry a fee where there is a limitation over as here. [Read v. Watkins, 11 Lea (Tenn.),. l. c. 161; Brown v. Hunt, 12 Heisk. (Tenn.) 409; Bean v. Kenmuir, 86 Mo. l. c. 670, 671, affirmed Walton v. Drumtra, 152 Mo. l. c. 501.]

II. Tantamount terms to those contained in this, will have been repeatedly considered by this court in the interpretation of other wills containing similar devises.

In a case closely like the present, the will devised' to the wife all the estate of the husband “to be held! and enjoyed by her as her own” with a limitation over after her death to an adopted daughter of “such of said property as shall then be in her possession.” The court held, that the use of that phrase was for the reason that “in all probability, all the property which his wife receives under the will, will not be £in her possession or left’ at her death,” and not because he intended that she £ £ should have the power to dispose of all the property so that none might be left.” The court said: “The intention of the testator is plain; the whole will must be read together and effect given to every clause of it, and the words used are to be understood in the sense indicated by the whole instrument. The testator’s wife was to have the use and enjoyment of all of his property during her life, and at her death what had not been consumed, or lost, in that use and enjoyment, was to go to his adopted daughter.” [Munro v. Collins, 95 Mo. l. c. 41.]

In another case certain personalty, including the shares of stock in a business corporation, belonging to the testator, were devised to his wife with a limitation over to his children of whatever “remained” after the death of the wife. It was held, that a life estate in this personalty was vested in the wife by implication, and that the power of disposal inferable from the use of the words “estate left by her” and “remaining of that she acquired under the will,” was referable to the uses she might make of the property during her tenancy, and did not enlarge the life estate into one in fee. [Lewis v. Pitman, 101 Mo. l. c. 293.]

In another case, the will of the husband gave to his wife, Sarah Ann, all of his estate, both real and personal, “to hold and enjoy absolutely with full power and authority to dispose of all or any part thereof at her option” In a second clause the will provided, “In the event of the death of my said wife prior to my death, or if she survive me, whatever of my property may remain undisposed of at her death, I give and bequeath to Joseph McKinney and to his-heirs absolutely and in fee.” The court held, that the wife tools a life estaté with power of disposal only, and that the limitation over was valid as to all of tbe property remaining at her death. [McMillan v. Farrow; 141 Mo. l. c. 62, 63.]

. In all of .the preceding cases, the life estates were not expressly declared but deduced by implication from the devises over and the terms and objects óf the will.

In another case, the life estate was expressly devised and-entire control of the property given to the wife with a limitation over “of what is left of it” at her death.In referring to the implication of a .right to dispose arising from-these terms, the court said that some of the property was perishable and that some would be consumed in the use, and it was not. designed that such portion should be accounted for to the remainderman; adding, “By a devise over of ‘what is left’'the testator evidently had in mind such possible losses, and did not intend that the legatee for life should be chargeable with them.” The court further added: “By the words ‘what is left’ the testator-intended to include in the bequest over, the entire property which should be in the hands of the life tenant at her death, whether it had been diminished by losses or increased by profits, or whether it consisted of personal property or had been invested in real estate.” [Bramell v. Cole, 136 Mo. l. c. 213-215.]

In another case, the husband conveyed to a trustee certain property for the support, use and benefit of his wife, and directed the trustee to “sell, mortgage, encumber, lease or otherwise dispose of the same.to such person or persons” as the wife might direct and appoint with a limitation over after the death of the wife to other persons. The wife by deed of gift and also by will attempted to convey property to her adopted son. The remainderman brought ejectment and had judgment in the circuit court, which was affirmed here. The court held, that the broad powers to dispose of the property enumerated in the deed to the trustee did not authorize the life tenant, Mrs.. Smith, “to give away this property,” and hence her attempted deed and subsequent will in favor of her ■adopted son were void. [Garland v. Smith, 164 Mo. l. c. 16.]

In another case, an express life estate was granted to the wife with a remainder over “of what may be left of my estate after her death” to the brothers of the testator.- In referring to the effect of these words as affording a power of disposal, the court held, that the widow was entitled to consume as much of the estate as she desired and could not be held accountable ■by the remainderman for what she chose to spend “as long as good faith” was preserved. [Burford v. Aldridge, 165 Mo. l. c. 425-426.]

In another case, an express life estate was created in a wife and an express power of absolute disposal superadded. The will contained a further clause devising over “anything that should be left” at her death. It was held that the deed executed in pursuance of that power for a valuable consideration was not subject to be set aside at the suit of the remainderman, since this disposition was in strict accord with the power of disposal given to the wife during her life tenancy. [McMillan v. Farrow, 141 Mo. 55.] This case cites, among’ others, Roth v. Rauschenbusch, 173 Mo. 582, which is also referred to by respondents in the case at bar. That case, however, is not in point, for there no life estate was created either by implication or by express terms, but there was a distinct grant of a fee in item two of the will and an attempt by a subsequent item to make a devise over. The court held, that the testator in that case having devised “the whole of his estate, real, personal and mixed, absolutely and forever” (the italics are the court’s), could not in a subsequent clause of the will devise a fee in remainder. The court held, that no words or expressions were contained in that will supporting any inference that the testator intended to create a life estate in his wife or restrain her “power of disposal.” The writer of the opinion expressed his assent to the doctrine “that the life estate need not be created by express words, but if it is the clear intention from the whole instrument that the first taker is to have but a life estate, the added power of disposition will not convert it into an absolute ownership,” and insisted his views had been misconceived on that point. It was held in that case there was nothing contained in any part of the will which afforded an inference of intention on the part of the maker to make any person, other than his wife, the object of his bounty, and in that respect it could be distinguished from the will passed upon in McMillan v. Farrow, supra.

In a very recent case a testator devised certain land and personal property to his children, and by a subsequent clause of his will provided that “upon the death of my children without issue, I direct the share of such child shall revert to my estate to be divided equally amongst my surviving children, ’ ’ etc., and provided further that upon the death of any one of his children, leaving issue, the property should go to such issue. The court reviewed all the precedent decisions, quoting- from them in extenso, and cited the statute (R. S. 190-9, sec. 579), saying: “Manifestly, this statute, when properly analyzed, means that if expressions are embraced in the will whereby it shall appear that such devise was intended to convey an estate for life only and a further devise be made of the devised.premises to take effect after the death of the devisee, then the intention of the testator to devise an absolute estate in fee simple to the devisee will be negatived and the estate devised limited to that of a life estate.” The court said further: “In our opinion, the ninth item in the provisions of the will of Oreen Moore clearly manifested the intention of the testator to limit the estate of his children devised in other items of snch will to that of a life estate. It is clear that to hold that this item in the provisions of this will should be eliminated, would not only be violative of the manifest intention of the maker of such will, but would as well be ignoring the plain provisions of section 579, Revised Statutes 1909. That statute, as heretofore pointed out, fully recognizes that a devise, which if .standing alone should be construed as an absolute estate in fee simple, might be limited to a life estate by the use of expressions in the .instrument which made it appear that such devise was intended to convey an estate for life only, or by making a devise over of the devised premises to take effect after the death of the devisee first named.” [Armor v. Frey, 226 Mo. l. c. 667-669.]

The principles to be extracted from these cases are: 1st. That where a life estate is created, whether by implication only or in express words, with a remainder over, the power of the life tenant to defeat the remainder depends upon the exercise of a superadded power of disposition expressly or impliedly given by the will; that such additional power will be strictly construed and confined to its exact intendment, and any attempted exercise thereof beyond its just scope will not affect the rights of the remainderman. 2d. That no fee is vested in the first taker whose power to convey the estate is restricted either as to mode or object, and that a conveyance in any other manner or for any other purpose is ineffectual against a remainder over. 3d. That where the power to dispose is inferential only, its proper extent is to be measured by the situation of the parties, the objects had in view and the intention of the testator, as shown in the will; and that when, as in this case, there was a devise to the first taker of personal as well as real property and a power to dispose inferable only from tbe nse of snob terms as “whatever may be left undisposed of at her death shall go to her descendants per stirpes,” it will be held to cover sales dr transfers for the personal uses and enjoyment of the first devisee, and will not be construed to cover gifts by deeds or will, for such a holding would transform the life estate, shown by the terms of the will, into a fee in the first taker and defeat the intention of the testatrix in that respect, and the further intention to create a limitation over.

III. We think from the terms of the will, the relationship of the parties, and in accordance with the foregoing principles of law,- the testatrix by that instrument gave a life estate to her sister with full power to dispose of the property for her use, ■ comfort or enjoyment, or any other purpose incident to these ends, but with no power to give it or will it away; for if these powers had been donated, the life estate would have been transformed into an absolute fee, and the plain purpose of the testatrix to give the property left at the expiration of the life estate to the persons named in the devise over would have been set at naught. This interpretation of the will gives full effect to the power to dispose implied in the life tenant by the use of the words “whatever is undisposed of at her (the life, tenant’s) death.”- Any other construction would clearly contravene the intent in the mind of the testatrix when she put the second devise in her will, and further indicated by all of the language and. provisions of the will as a whole that she intended., only to make the prior, devise one for life coupled with a power to dispose adequate to the uses of such tenure and restricted in its exercise by the obligations of good faith on the part of the life tenant or trustee of ■ the preceding devise. In reaching this conclusion we have applied the principle, that the whole efficacy of a will is wrapped up in the lawful.intent of its maker. ■ It follows that the deed of gift made by the life tenant •under which defendants (respondents) claim, is inoperative against the estate given to the plaintiffs as-remaindermen under the terms of the will for want of power to execute it; and since the grantee therein was ■a volunteer, he is charged with notice of the want of authority of his grantor to make the same.

The judgment in this case is reversed and the •cause remanded to be tried in conformity with the views herein expressed, and for a, decree in accordance with the stipulations made and entered into by the parties and embodied in the agreed statement of facts set out in the record.

Brown, C., does not concur.

PER CURIAM.

The foregoing opinion of Bond, 0., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FERRISS, J. KENNISH, J.

license: Public Domain

text:
    OWNBY EVERHART, Appellant, v. HENRY BRYSON.
    In Banc,
    July 2, 1912.
    1. INSTRUCTION: Peremptory: Order of Request. It is immaterial in what order the peremptory instruction to find for plaintiff was asked, whether before or after the instructions on the merits. In either case, in determining whether or not it was inconsistent with the instructions on the merits asked and given, and . whether or not error in refusing that instruction was waived by a request for. the others, it will be assumed that the peremptory instruction refused was first offered.
    3. -: -: Waived by Request for Inconsistent Instructions: Slander. A plaintiff cannot on appeal object to the refusal of 'the trial court to give a peremptory instruction to the jury to find for him, if he also asked and was given 'other instructions inconsistent therewith. And instructions telling the jury, that if they find certain facts to be true they must find for plaintiff, are inconsistent with said peremptory instruction, and having been asked and given, the plaintiff thereby waived his right to assign the refusal of the peremptory instruction as error. The rule applicable to plaintiff and defendant in this regard is radically different. [Disapproving Bealey v. Blake’s Admr., 70 Mo. App. 229, and Eagan v. Martin, 81 Mo. App. 676.]
    Held, by KENNISH, X, dissenting, with whom WOODSON, X, concurs, that since defendant by his answer admits having publicly uttered the words imputing to plaintiff the felony of forgery and does not plead justification, plaintiff was entitled to recover without regard to the testimony, and did not waive his right to a peremptory instruction by making the best of the -situation in which he was placed by the error of the court, by asking an instruction basing his right to recover on the truthfulness of the testimony and the allegations of his petition. Held, also, that the same rule in such case should be applied to plaintiff and defendant, as it has always been applied to defendant, namely, that, when the court errs by a refusal to give to plaintiff an instruction to which he is clearly entitled, he does not waive his right to assign that ruling as error, by asking other instructions inconsistent with that one, and submitting himself to the erroneous theory of the court and making the best of the only situation left to him.
    S. SLANDER: Understanding of Hearer. The plaintiff does not have an unqualified right in all slander cases to take the hearer’s understanding of the meaning of the words spoken. Such evidence is competent only when the words are ambiguous, and when there are attendant circumstances which cannot fairly he placed before the jury. Where the words used were, “Everhart and a negro, Snell, a negro 'man, ran off together once on money obtained by a forged check,” there is no ambiguity in their application, for they have no double meaning, and the court did not err in refusing to permit a hearer to testify what he understood the words to mean.
    4. -: Instruction: Converse of Plaintiff’s. Plaintiff cannot complain of an instruction given for defendant which is the converse of those asked and given for himself, and presenting the same theory. And the instruction set out in the opinion in this slander case is held to be of that character.
    Appeal from Audrain Circuit Court. — Hon. J. D. Barnett, Judge.

      Affirmed.

      E. A. Shannon and Barclay, Fmntleroy <& Cullen for appellant. ,,
    (1) The court erred in refusing to give the jury the peremptory instruction asked by plaintiff. The answer admits the slander and does not plead the truth, and defendant admits the slander. In these circumstances the only question open is the amount of damages. Mitchell v. Bradstreet, 116 Mo. 226. (2) The court erred in sustaining the objection to the question asked of witness Pool, what he understood by the words spoken of plaintiff by defendant. The hearer’s understanding of the alleged slander is competent. Julian v. Star, 209 Mo. 35. And although the court was not unanimous as to the rule in a libel case, yet there is no dissent from this doctrine in a slander suit. Julian y. Star, 209 Mo. 113. And in these cases hearers have been permitted to testify to their understanding of the alleged slander. Lewis v. Humphries, 64 Mo. App. 466; State v. Bonine, 85 Mo. App. 466; Barton v. Holmes, 16 Iowa, 252; Binford v. Young, 115' Ind. 174; Proctor v. Pointer, 127 G-a. 134. That Pool’s understanding was competent is also supported by the following authorities: Wagner v. Printing Co., 45 Mo. App. 6; Ball v. Pub. Co., 237 111. 592; Knapp v. Fuller, 55 Vt. 311. (3) The court erred in giving defendant’s instruction 3. An intent not to vilify is no excuse for slander. Morris v. Sailer, 134 S. W. 98. (4) The court erred in excluding defendant’s first answer. An abandoned pleading is competent as an admission.Lynch v. Railroad, 208 Mo. 1.

      Robertson & Robertson for respondent.
    (1) The language charged in the petition is not actionable per se. Newell on Slander & Libel (2 Ed.), 84; Christal v. Craig, 80 Mo. 372; Curry v. Collins, 37 Mo. 328; Carpenter v. Hamilton, 185 Mo. 615; Powell v. Crawford, 107 Mo. 595. The language charged in the petition is: “Everhart (meaning the plaintiff) and the negro Snell (meaning one James Snell), a negro-man, ran off together once on money obtained by a forged check.” Under the foregoing authorities it is-quite clear that the language charged is not actionable per se, and it was necessary for the plaintiff in the petition, and so he recognized by the use of the innuendo,, to apply these words to the plaintiff and to attempt to extend their meaning. The other charge of the petition was abandoned. The language set forth in the petition does not charge the offense of forgery, and on the face of it, it is as applicable to the negro as it was to the plaintiff. So then, it was, a question for the jury to say whether or not the plaintiff had been slandered by the defendant. This question was properly submitted to the jury by the plaintiff’s instructions and by the defendant’s counter instructions. (2) The-proof on the part of the plaintiff was uncertain as to tbe language used. The plaintiff depended solely upon the witness Pool to prove the language charged in the petition, and he could only give his best impression as to it. The plaintiff then used the deposition of the defendant theretofore taken to attempt to prove the language used, and that varied from the language charged; and, therefore, plaintiff failed in his proof of his allegations. At most it was a question for the jury to say whether or not the language charged was proven. This the plaintiff recognized in asking his instructions and in the first instruction based his right of recovery upon the language as charged. The language used1 by the defendant was not- that the plaintiff ran off on money obtained by a forged check, but as submitted to the jury in- the defendant’s deposition it was that defendant had heard or understood that such was the case. ■ The language used by the defendant was not substantially the same as that charged. The jury had the right to determine that the defendant used the language which he admitted in the deposition, and that was neither in the same phraseology nor substantially the same as charged in the petition, and under plaintiff’s own instruction the jury had a right to return a verdict in favor of the defendant for failure to establish what the plaintiff had alleged. Christal v. Craig, 80 Mo. 374; Berry v. Dryden, 7 Mo. 324; Birch v. Benton, 26 Mo. 161. (.3) There was no error in the court’s refusal to allow the witness Pool to testify as to what he understood the defendant meant by the language used. The witness himself had already answered that question by saying that the language was in plain English, and there was no effort on the part of the plaintiff to show that the witness understood the language otherwise than as expressed by the defendant. Before the plaintiff was entitled to insist upon the overruling of the objection it must appear that the witness would have given some different answer from that which he had already given and that he understood the words in a different sense than their ordinary import. Before the plaintiff can be entitled to make complaint as to the sustaining of that objection it must appear that the plaintiff had some testimony excluded by reason of the objection. It was the duty of the plaintiff to' state what he proposed to prove so that the court could judge of its materiality and relevancy. So far as appears from what took place at the time the witness had already answered the question and had no different answer of anything that was material. Hickman v. Oreen, 123 Mo. 179; Bank v. Aull, 80 Mo. 109; Jackson v. Hardin, 83 Mo. 175; State ex rel. v. Leland, 82 Mo. 260; Kraxberger v. Roiter, 91 Mo. 404; Berthold v. O’Hara, 121 Mo. 88. Where the meaning of the words used is plain and when used according to their natural and ordinary significance, the testimony of witnesses as to their understanding of the meaning of such words is not admissible. Branch v. Knapp & Co., 222 Mo. 597; Callahan v. Ingram, 122 Mo. 375. (4) The appellant is in error in his first point in stating that the answer admits the slander. The first part of the answer is a general denial and therefore denies the alleged slander. Neither in the subsequent part of it does it admit the speaking of the words charged, but further alleges that what defendant did say was simply in the relation of a circumstance not slanderous nor intended as such. The error of appellant’s argument consists in assuming that the words charged in the petition are slanderous per se. It was a question for the jury as to whether or not the language used was slanderous, and that was properly submitted to the jury by instructions given at the request of both parties. Johnson v. Post-Dispatch, 65 Mo. 539'. It is immaterial that the defendant used the words that he had understood or had heard the facts of the circumstance which he related and did not give the name of his author. The statement not being slanderous per se,'removes it from the rule of the requirement to give the name of the author. Dole v. Lyon, 10' Johnson’s Rep. 449'. Before plaintiff cán be entitled to recover in an action for slander in any case he must allege and prove that the words were actually used in an actionable sense and were applied to the plaintiff. Lewis v. Humphries, 64 Mo. App. 471; Julian v: Star, 209' Mo. 79'; Israel v. Israel, 109 Mo. App'. 366; Bridgman v. Armer, 57 Mo. App. 528; Newell on Slander & Libel (2 Ed.), 649.
   FERRISS, J.

Action for slander upon the following petition:

“Plaintiff for his cause of action states that the defendant, on or about the 26th day of March, 1907, at the city of Centralia, in the State of Missouri, wilfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: ‘Everhart (meaning the plaintiff) and a negro, Snell (meaning one Jam.es Snell), a negro man, ran off together once on money obtained by a forged check.’ And said words were spoken in the hearing and presence of third parties; and by said words the said defendant did charge and intend to charge that the said Ownby Everhart had made and uttered a forged check upon some duly incorporated bank, and had obtained money upon said forged check, and the said words were so understood by the persons who heard them. Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of ten thousand dollars, five thousand dollars of which he says is actual damage, and five thousand dollars as punitive damages, for which sum of ten thousand dollars he prays judgment, and costs.”

The answer is a general denial, and then this in mitigation:

“Defendant, further answering, says that whatever words he may have spoken of and concerning the plaintiff were spoken without any ill will or malice toward him, and were not spoken with the intent to injure him, but at the time they were spoken, the said defendant did not speak of and concerning the plaintiff as to his own knowledge, and so stated at the time, but defendant did say of and concerning the plaintiff that he, the defendant, had understood that the plaintiff had forged his, plaintiff’s father’s name, to a check, and in that way got some money by which he and the negro man, James Snell, had gone off together, but this defendant in relating said circumstance, in speaking of and concerning the plaintiff and his connection with the said check and the said James Snell, the negro man, stated what was current rumor in the vicinity in which plaintiff and defendant lived, and defendant stated at the time of using said words, that the information had come to him from others, and did not undertake to state the same to be a fact, and it was understood by the persons who heard the said speaking that said defendant made said statement not upon his own knowledge but upon the information of others.
“Defendant further denies that the language used by him of and concerning the plaintiff is slanderous, or that it amounted to the imputation of a crime by said defendant against plaintiff.”

The case was tried before a jury, the verdict being for the defendant. Plaintiff appeals.

There was evidence tending to sustain the allegations of both the petition and answer.

The plaintiff complains: (1) Of the refusal of his peremptory instruction to find in his favor; (2) of adverse ruling on evidence offered to show the sense in which hearers understood the language used; (3) of instruction numbered 3 given for defendant. The other points are unworthy of consideration. Further facts necessary to an understanding of the opinion will be found therein.

I. At the close of the evidence plaintiff asked and the court gave, among others, instructions numbered 1 and 2, as follows:

“1. If you believe from the evidence that the defendant spoke of and concerning the plaintiff, in the presence and hearing of J. Kelly Pool, the word's mentioned in the petition, to-wit: ‘Everhart and a negro, Snell, ran off together once on money obtained by a forged check,’ and if you further believe that by said words the defendant did charge and intend to charge that said Ownby Everhart had made and uttered a forged check, and had obtained money upon such forged -check, and the said words were so understood by the persons who heard them, then you are instructed that it is your duty to return a verdict for the plaintiff.
“2. The court instructs the jury that in this case there is no justification pleaded, and the defendant does not allege that the words he spoke of and concerning plaintiff were true, and if you find and believe the defendant spoke of and concerning plaintiff the words set forth in plaintiff’s instructions numbered one and two, and thereby charged and intended to charge that Ownby Everhart had made and uttered a forged cheek, and the words were so understood by the person who heard them, then the verdict must be for the plaintiff.”

Plaintiff also requested the court to give this instruction :

“The court instructs the jury that under the law and the evidence in this case you should return a verdict for the plaintiff, and the only matter for your consideration is the amount of damages.”

This instruction was refused, and plaintiff excepted.

The way to the consideration of plaintiff’s objection to the court’s ruling on this instruction is blocked by an important question of appellate procedure, namely: Can plaintiff object on appeal to the refusal of this instruction, in view of the fact that the above instructions numbered 1 and 2, were given at his request? The case was pleaded, tried and instructed on both sides upon the theory indicated in the above given instructions. The peremptory instruction refused was inconsistent with numbers 1 and 2, given for plaintiff. Defendant contends that plaintiff waived his objection to the refusal of his peremptory instruction by asldng and receiving the instructions which submitted the question of slander or no slander to the jury, and calls attention to the abstract, which fails to show that the peremptory instruction was asked first, hut, on the contrary, would seem to indicate that it was an afterthought. We do not regard the order in which instructions are offered as important, and will assume that the peremptory instruction was first offered, and refused. [Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. l. c. 313.]

It is undoubtedly established law that an appellant cannot complain of an error which he invited. It is also true that if it was error to refuse the peremptory instruction, it was error to give the inconsistent one submitting the question to the jury; but the latter having been given at appellant’s request, lie invited the error if error was committed. It is settled by numerous decisions of this court that a defendant does not waive his objection to the refusal of the court to give his peremptory instruction in the nature of a demurrer to the evidence by asking further instructions to meet those given on behalf of the plaintiff. Should the same rule apply to the plaintiff regarding his peremptory instruction? It may be remarked in passing that this privilege extended to the defendant is not recognized in all jurisdictions. It is in the nature of an exception to the general doctrine of waiver and estoppel. Its recognition in this State is put upon the ground that the defendant does not come into court voluntarily, and cannot retreat therefrom. He is therefore allowed to shift his ground, if need be, to meet the attack of his adversary, which attack he can in no way control. On the other hand, the plaintiff is the moving party. He selects his method of attack. If one theory put forward by him, by his' instructions, is denied by the court, he may retreat from the contest with his rights in. full force for a new attempt. Not so the defendant. If, under these conditions, the plaintiff (his first theory being denied by the court) sees fit to persist and try the case on a different theory, approved by the court, he must be held to have waived his objection to the ruling of the court on his first proposition.

That such distinction between the plaintiff and defendant exists is clearly indicated in Cochran v. Railroad, 113 Mo. l. c. 366, where Gantt, J., says: “It must be remembered that a defendant occupies a different attitude from his adversary, the plaintiff. The plaintiff brings the action. If the ruling is adverse, he may take a nonsuit. Not so with the defendant. He is in court without his consent. The court may make any number of rulings that he may deem erroneous, but he cannot abandon the case; he is in court, and must remain until the cause is finished. He has a right to tender as many defenses as he has. If the court erroneously deny him one, he must avail himself as best he can of those remaining. He, however, advises the court and his adversary of his claim, and if he submits, as he is bound to do, to the ruling of the court, and tries his case in accordance with the judgment of the trial court, on what principle is he estopped from complaining of the action of the trial court and his adversary in forcing him to fight the battle upon ground selected by them and at a great disadvantage to him? We see no element of estoppel in such a case.”

And again, by Lamm, J., in Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. l. c. 307, where he says: “In construing rules of appellate practice in accordance with .right reason regard must be had to the difference between the position occupied by a defendant and that occupied by a plaintiff. The plaintiff goes into court voluntarily; the defendant is elugged’ in, that is, pulled in by the lugs, will ye, nill ye. The plaintiff goes up to battle on his own ground — he pitches the field.”

These expressions must mean that the defendant is allowed, by grace, to do something which the plaintiff cannot be allowed to do. They have no force unless they deny to plaintiff the right accorded to the defendant. "We think this distinction is radical. The plaintiff, by his instruction asked and given, after his peremptory instruction is refused, plants his case upon the theory of the given instruction. This latter instruction determines the theory of the case, and, having asked it, he must stand by it. The defendant; on the other hand, affirms his instructions, asked after his peremptory instruction is refused, to be right only for the purpose of meeting the theory advanced in those given for plaintiff. For that purpose, and to that extent only, is he bound by them. For this reason he is held not to have waived his peremptory instruction. But the plaintiff has the initiative. At his request instructions are given by the court upon a certain theory. He invites the defendant, indeed forces him, to meet this theory, and trys out the case so made before the jury. If defeated on this battlefield which he “pitches,” he cannot be heard in the appellate court to say that the case was instructed upon the wrong theory, and that his first theory, rejected by the court, was the only true one. This particular point is before this court for the first time; nor can we find, though we have diligently searched, a discussion of it by text-writers or by the courts of other States. Two cases in the Kansas City Court of Appeals — Bealey v. Blake’s Admr., 70 Mo. App. 229, and Eagan v. Martin, 81 Mo. App. 676 — appear to hold contrary to the views above expressed, the Eagan case following the decision in the former case. The ruling in the Bealey case rests upon an assumed analogy between the positions of the plaintiff and defendant in this regard, and extends to the former the benefit of the rule established as to the latter, namely, that he does not waive his peremptory instruction by asking others to meet plaintiff’s case. The only authority cited is upon that proposition. As these decisions of the Court of Appeals upon this point are not in harmony with the views herein expressed, they must be disapproved.

II. When Mr. Pool, in whose hearing the alleged slander was uttered, was upon the witness stand, the following occurred:

“Q. Mr. Pool, Mr. Robinson asked you if you understood what he meant by that language, and you said it was plain English. What did you understand he meant by that? A. I understood he meant—
“Mr. Robertson: I object to that.
“The Court: The objection is sustained.
“To which ruling of the court plaintiff then and there excepted and saved his exception.”

Plaintiff insists that he had a right tó ask the hearer his understanding of the words spoken by defendant, and appeals for authority to the views expressed by this court in Julian v. Star, 209 Mo. 35; referring to the majority opinion, at pages 75-82, and to pages 113-128 of the dissenting opinion, both opinions conceding this right in certain cases of slander. That case, however, does not concede an unqualified right in all slander cases to take the opinion of a hearer as to the meaning of the words spoken. On the. con- . trary, the evidence is held to be competent only when the words used are ambiguous, and when there are, attendant circumstances which cannot be fairly placed before the jury. In the dissenting opinion in that case (p. 113), Graves, J., says:

“To our minds there is and should be a clearly marked line of distinction between libel and slander cases in this regard. We can see reason for the rule in the case of slander or spoken words. Accompanying accent, intonation, facial expression, tone, manner, gesture, etc., are seen and heard by the witness. These things are difficult of description before a jury, so that it is practically impossible to place the jury in the place of the hearer. Ex necessitate, the understanding of the hearer becomes essential in the administration of justice, and his bald conclusion of the meaning of the language used is admitted.” But further, on page 115: “But this rule should not apply to slander cases, where the words are unambiguous, and not accompanied by the things aforesaid which are difficult to describe or reproduce before the jury, nor to libel cases.”

On the same point, we find this in Starkie on Slander & Libel (5 Ed.), p. 466: “Where the words spoken or the meaning of the terms employed are ambiguous, and it is doubtful in what sense the speaker intended them, the question is in what sense the hearers understood them; and if, when words may have two meanings, the hearers understood them in an actionable sense, the action is maintainable; for the slander and damage consist in the .apprehension of the hearers.”

We said in the Julian case of this statement last quoted: “The author there is speaking of words that may have two meanings, one actionable, the other not so.”

The words alleged to have been spoken in the case at bar are: “Everhart (meaning the plaintiff) and a negro, Snell (meaning one James Snell), a negro man, ran off together once on money obtained1 by a forged check. ”

These words, in themselves, have no double meaning. Each word is plain English. The ambiguity lies in their application. Did the implication that a forgery had been committed apply to plaintiff, or to the negro, or to either or both? This was a question for the jury to settle in the light of all the evidence, and its solution did not depend upon any facts or circumstances which were known to the hearer and could not be known to the jury. There were no extraneous circumstances calling for an expert opinion. The objection was, therefore, properly sustained.

III. Plaintiff complains also of instruction num7 bered 3 given for the defendant. Here it is:

‘ ‘ The court instructs the jury that it is for you to determine whether the defendant meant by the use of said language to charge the plaintiff with the crime of forgery, and if you find that said language was used by defendant without malice and in good faith, in relating what he had heard of the plaintiff, not intending thereby to injure the plaintiff or charge him with being guilty of the crime of forgery, and further find that said words were not understood by the persons who heard them as charging that Ownby Everhart made or had uttered a forged check, then said language so used does not constitute slander, and you will return a verdict for the defendant. Or, if the defendant said that he understood or heard that the plaintiff and a negro man named Snell ran off together once on money obtained by a forged cheek, and if you believe from the language used under the circumstances defendant did not charge the plaintiff with the offense of forgery, and if none of the hearers understood it as charging plaintiff with the crime of forgery, then the defendant is not liable, and you will so find.”

This instruction is the converse of instructions 1 and 2, given for plaintiff, and presents the same theory. Plaintiff is therefore in no position to object that it is improper. [Huss v. Bakery Co., 210 Mo. 44.]

Finding no reversible error, the judgment is affirmed.

All concur except Woodson and Kennisln,, JJ., who dissent.

DISSENTING OPINION.

KENNISH, J.

I cannot concur in the foregoing opinion. Under the law of libel the jury are the judges both of the law and the fact. That rule does not apply to slander, but instead the general rule of jury trials that questions of law are for the court and questions of fact for the jury. In this case the defendant admitted in his answer that he publicly uttered the language complained of, imputing to the plaintiff the felony of forgery. He did not plead the truth of the crime thus imputed and therefore as a question of law it necessarily followed that the language was. false, malicious, slanderous per se, and that the plaintiff was entitled to recover, without regard to the testimony.

At the close of the evidence the plaintiff asked an instruction directing a verdict in his favor. The court erroneously refused it. The plaintiff then, to make the best of the situation in which he was placed by the error of the court, asked two instructions submitting his right to recover as a question of fact to be determined by the jury. These instructions were given and this court now holds that by asking them he forfeited his right to have the court’s said erroneous ruling reviewed, and also forfeited his right to redress, notwithstanding the fact that such right appears in the record proper in this court. To reach that result a new rule of procedure is evolved which admittedly is without precedent and is adopted at the cost of overruling two decisions of our appellate courts. Under this rule it is conceded that a defendant by unsuccessfully asking an instruction directing a verdict in his favor does not waive his right to have such adverse action of the court reviewed on appeal, by subsequently asking instructions, as the plaintiff did in this case. The reason given for the rule thus discriminating between litigants is that the defendant is “lugged” into court, while the plaintiff comes in of his own accord. If a plaintiff, in order to vindicate his name against a false charge of felony, is compelled to seek redress in the courts, is he to be handicapped by reason of that fact, and is the defendant who cQnfesses the slander to be given the benefit of a rule denied the plaintiff, because the latter found it necessary to go into court voluntarily, while the former was brought in by process? If that is not putting a premium on wrongdoing and penalizing an injured party, it would be difficult to. conceive of such a ease.

The bald fact stands out in this record that although the defendant confessed the actionable slander complained of, he has prevailed because of an error of the trial court in his favor and because of a new rule of procedure not founded upon authority and without substantial basis in the principles of justice.

Woodson, J., concurs in this opinion.