author: MOZLEY, Q.

text:
    WESLEY M. ALLISON et al. v. CEMETERY CARETAKING COMPANY et al., Appellants.
    Division Two,
    June 26, 1920.

      1. CEMETERY: Sale. The statute (Sec. 1307, R. S. 1909) does not prohibit the voluntary sale of property belonging to a cemetery association to another association , of the same kind and maintained for the same purpose.
    2. '-: -: Equitable Title. If the deed from the owner of land to named persons as stockholders of a cemetery company provided how the lots should be conveyed, and the grantees accepted the deed in that form, recorded it, elected a president of the company, sold the property to another company of the same kind and maintained for the same purpose, conveyed the same to it in accordance with the terms of the said deed and put it in possession of the premises, the grantee acquired, in any event, an equitable title to said property, and in a suit by said original grantees or their successors against it to quiet title it is entitled to a decree accordingly.
    3. -: Statute of Frauds: Executed Sale. If the grantee is put in possession of the cemetery property upon delivery of phe consideration (a perpetúal-eare bond), according to the terms of the • isale to it, the Statute of Frauds does not invalidate the sale.
    4- -: Voluntary Sale: Cancellation. Where a cemetery association, for the first year after a conveyance of an established cemetery to it and after it took possession, carried out its agreement according to the terms of its perpetual-care bond, which was the sole consideration for the conveyance, but ¡thereafter failed to comply with its requirements, the conveyance, absolute on its face, cannot be cancelled if the bond contained no provision declaring the deed to be void, and none for re-entry for failure to comply with its terms, and'' neither it nor the deed contained ■any condition subsequent or other provision for a cancellation of the conveyance for the grantee’s failure or refusal to care for the cemetery.
    5. -: Deed of Trust: Commercial Uses: Cancellation. After the sale and conveyance of a cemetery to another cemetery association, the grantee issued its bonds and secured them by a deed of trust to a trust company, which had both constructive and actual notice that many of the lots containing the remains of deceased persons had been conveyed by recorded deeds, and the deed of trust did not purport to have been given to secure funds for the improvement and repair of the cemetery Held,- that, the statement of facts and the prayers of the pleadings authorizing it, the deed of trust was invalid and will be cancelled, since a foreclosure thereof would either cast a cloud upon the rights of those whose relatives are buried in the lots, or would divert the property from its original public use as a burying ground and convert it to commercial uses.
    Appeal from Ray Circuit Court. — Hon. F. P. Divelbiss, Judge.
    Reversed and remanded (with directions).

      Lindsay & Lindsay, K. D. Gross, G. H. Harrison and John G. Carr for appellants.
    (1) Plaintiffs’ petition did not state facts sufficient to constitute a cause of action, and -upon the face of the whole record the decree and judgment should have been for defendants. Alward v. Boatwright, 193 S. W. 570. (2) The deed of the Lawson Cemetery Company by J. A. Smith its president conveyed the equitable (if not the legal) title to the unsold and unoccupied, lots to the Cemetery Caretaldng Company. Shaffer v. Detie, 191 Mo. 392; Martin v. Nixon, 92 Mo. 35. (3) The Cemetery Caretaldng Company having executed and delivered the care-fund bond and having been placed in possession of the property under the deed, and the owners of the Law-son Cemetery Company having accepted the consideration, to-wit, the perpetual-care-taking bond, the Cemetery Caretairing Company became the equitable owner and the courts will decree the legal title to be in it. Shaffer v. Detie, 191 Mo. 377. (.4) The Lawson Cemetery Company, being a partnership, the partnership real estate will be treated as personalty for all purposes and was properly conveyed by Joseph A. Smith, one of the partners. Troll v. St. Louis, 257 Mo. 669; Easton v. Courtwright, 84 Mo. 37; Shanks v.-Klein, 104 U. S. 18; Buckley v. D'aig, 100 N. T. S. 869. (5) The failure, if any, on the part of the Cemetery Caretaking Company to perform all of the covenants contained in the perpetual-care-taking bond which constituted the only consideration for the deed made by Joseph A. Smith, president of the Lawson Cemetery Company, is not sufficient ground for cancellation of said deed. Alward v. Boatwright, 193 S. W. 568.

      Garner, Clark, Milligan & Gairner and- George W. Crowley for respondents.
    (1) The deeds to the original owners vested the title in them and their heirs as tenants in common. Bryan v. Bickford, 2 N. E. 687; 4 Cyc. 306; 6 Cyc. 714 B — 718. (2) The deed from Joseph A. Smith, as president of the Lawson Cemetery Co. was not effectual to pass the title. Woodland Cem. Co. v. Ellison, 67 S. W. (Ky.) 14. (3) The fact that some of the plaintiffs approved and none of them objected, to the conveyance of a lot at a time for burial purposes by one of the owners assuming to act as president, does not estop them from objecting to a deed conveying all the property in this manner. Wool-ford v. Cem. Co., 56 N. W. (Minn.) 56. (4) Plaintiffs did not hold themselves out as a corporation and are* not estopped by reason of the manner in which they conducted their business, 10 Cyc. 252. (5) There was a failure of consideration. (6) Except when permitted by statute a mere voluntary association can not hold property in its society name. There was no ground upon which appellants could believe the Lawson Cemetery Co. was a corporation. 5 C. J. 1342; 4 Cyc. 306.
   MOZLEY, Q.

On. April 2, 1917, plaintiffs commenced this action in the Circuit Court of Ray County, Missouri, in two counts. The first is a proceeding under-' Section 2535, Revised Statutes 1909, to quiet title to the real estate in controversy. The second is a proceeding in equity, to set aside and cancel certain conveyances under which defendants claim title to said real estate.

On March 13, 1873, Thomas Finch, the owner of said property, conveyed the same, by warranty deed, to Joseph A. Smith, William W. Smith, John Crowley, Allison & Smith, Robert H. Finch, George Young, George W. Montgomery,. Francis Brock, Madison B. Cummins and George W. James, designated in said conveyance as stockholders of the Lawson Cemetery Company, of Ray County, Missouri.' Said deed conveyed about 2.08 acres, and the expressed consideration therein was $100. Ityvas duly recorded in said county, on March 24, 1873.

Said Wesley M. Allison is still'living, and it is conceded that the remaining plaintiffs are the heirs of the other grantees named in the deed aforesaid. The defendants are the Cemetery Caretaking Company, a corporation; the Wells-Hine Trust Company, a corporation (receiver of said last named company), and the Cameron Trust Company, a corporation.

The deed from Finch to Joseph A. Smith et al. supra, among other things, contains the following:

“To have and to hold the land aforesaid with the appurtenances unto the said parties of the second part, stockholders as aforesaid and their heirs and assigns forever.

“With full power and authority in George Young, president of said company, by deed signed by him as president, and attested by Joseph C. Smith, secretary of said company, to sell and convey lots in said cemetery to be laid off in said land and with like power to their successors in office in like manner to sell and convey lots in the same,” etc.

It was conceded by plaintiffs that the 2.08 acres supra were laid off into lots and platted before any conveyance was made to the Cemetery Caretaking Company-aforesaid.

Plaintiffs also offered in evidence a deed, dated April 30,1892, from George Young and wife, to the Lawson Cemetery Company, conveying an additional strip of land described in the petition. This was a regular warranty deed for the expressed consideration of $200.

On April 26, 1913, the Lawson Cemetery Company aforesaid, by warranty deed, conveyed the property in controversy to the Cemetery Caretaking Company of Buchanan County, Missouri, for the expressed consideration of one dollar and other valuable considerations, which said real estate was to be held and used as a burying ground. Said deed concludes as follows:

“In witness whereof the Lawson Cemetery Company has executed this1 deed by causing the same to be signed by its president the day and year first herein written,”

It was signed by J. A. Smith, as president of said Lawson Cemetery Company. The notary who took the acknowledgment certified that on April 26, 1913, there personally appeared before him, J. A. Smith, president of the Lawson Cemetery Company, who was personally known to him to be the same person and officer he represented himself to be, and who executed said instrument as the act and deed of said Lawson Cemetery Company, etc.

No objection was made to the introduction of said last named deed.

The defendants likewise introduced in evidence, without objection, a deed of trust, dated September 1, 1913, covering the real estate aforesaid, from said Cemetery Caretaking Company, to defendant Cameron Trust Company, to secure outstanding bonds in the sum of $10,000. The evidence tends to show that all of said bonds, except $3,100 of same, had been sold, and were owned by different people throughout the country. This deed of trust is only incidentally attacked in the petition, on the theory that no title passed to the Cemetery Care-taking Company under its deed from Smith, as president of the Lawson Cemetery Company. The latter company received from the Cemetery Caretaking Company, as a consideration for above conveyance, a perpetual-care bond, in the sum of $500. Said bond did not provide for a forfeiture, nor did it provide for a re-entry upon the part of Lawson Cemetery Company, in case the Cemetery Caretaking Company failed to comply with the terms of said bond.

Such other facts as may be necessary will be considered later.

The trial court found the issues in favor of plaintiffs, cancelled the deed from Smith to the Cemetery Company aforesaid, likewise cancelled said deed of trust, and entered a decree in favor of plaintiffs, as prayed for in the petition.

Defendants, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed to this court.

Voiuiitary

I. Plaintiffs, in the first count of the petition, seek to quiet title to the real estate in controversy, and ask for a decree declaring them to be the owners thereof. The defendants Cemetery Caretaking Companyj through its receiver and codefendant, Wells-Hine Trust Company, in its answer, pleads the sale from said Joseph A. Smith, as president of the Lawson Cemetery Company, to it, of the real estate in controversy. It likewise pleads estoppel against plaintiffs, and asks for a decree declaring it to be the owner of said real estate.

According to our conception of the law, it is immaterial whether the grantees in the' deed from Finch to Joseph A. Smith et al., dated March 13,1873, be considered as tenants in' common or co-partners. The instrument conveying title to them provides, in express terms, that the lots when sold, shall be conveyed by the president and his conveyance attested by the secretary of the Lawson Cemetery Company. The conveyance states on its face that the property is conveyed to said grantees' as stockholders of the Lawson Cemetery Company. The latter organized, without any charter, by electing said Joseph A. Smith as its president. The lands purchased by said grantees were laid off into lots, platted, etc., as the Lawson Cemetery Company, before the sale to said defendant. The evidence is undisputed that the sale was made to the latter with the consent, and at the instance,’of all the parties in interest and a deed made by said Smith to the Cemetery Caretaking Company of said property to be used as a burying ground as heretofore stated. The consideration for said conveyance was the execution and delivery of the care bond described in the petition. The Cemetery Caretaking Company, under and pursuant to said sale and the delivery of said bond, was placed in possession of the property' in question, and held possession thereof at the time of trial. We are of the opinion that Section 1307, Revised Statutes 1909, does not prohibit the voluntary sale of property belonging to a cemetery association to another association of the same kind and maintained for the same purpose. As the deed from Finch to Joseph A. Smith and others provided how the lots should be conveyed, and as said grantees accepted said deed in that form, . recorded the same, elected a president of the Lawson Cemetery Company, sold the property to said defendant, conveyed the same to it in accordance with the terms of said instrument, and put said defendant in possession of the premises, the latter acquired, in any event, a good equitable title to said property, and was entitled to a-decree accordingly. [Sec. 2787, R. S. 1909; Wood v. Trust Co., 265 Mo. l. c. 525; Shaffer v. Detie, 191 Mo. l. c. 392-3; 20 R. C. L. sec. 118, p. 906; Freeman on Cotenancy & Partition (2 Ed.), sec. 183.]

o^rrauds

(a) The Cemetery Caretaking Company, having been placed in possession of said property upon delivery of said bond, under the .terms of the sale aforesaid, the Statute of Frauds does not invalidate said saJ-e- [Emmel v. Hayes, 102 Mo. 186; Shacklett v. Cummins, 270 Mo. 496; Ross v. Alyea, 197 S. W. (Mo.) l. c. 270, and cases cited.]

Cancellation.

II. The evidence tends to show that the Cemetery Caretaking Company, after taking possession of said property under the sale aforesaid, carried out its agree-' ment according to the terms of its bond for the first vear, but practically failed thereafter to com- , . . -r, . , -, , ply with its requirements. It is contended by respondents that they are entitled to a decree cancelling the conveyance to defendants by reason of their failure to comply with the covenants contained in said bond. Turning to the latter, we find therein no provision declaring said deed void, or providing for a reentry in case said defendant failed to comply with the terms of same. The deed contains no condition subsequent, nor .any other provision, which would warrant us in divesting the Cemetery Caretaking Company of the title to said property, and vesting the same in plaintiffs, on account of the Cemetery Caretaking Company’s refusal or failure to look after the cemetery, as required by said bond. [Alward v. Boatwright, 193 S. W. (Mo.) 568; Catron v. Scarritt Collegiate Institute, 264 Mo. l. c. 713, 175 S. W. 571; Lackland v. Hadley, 260 Mo. 539, 570, 169 S. W. 275; Haydon v. Railroad, 222 Mo. l. c. 138, 121 S. W. 15; Anderson v. Gaines, 156 Mo. l. c. 670-1, 57 S. W. 726.] In other words, the plaintiffs may have a right of action on the bond aforesaid, but are not entitled to have the deed to the Cemetery Care-taking Company cancelled for failure to comply with the terms of said bond.

III. The only reference to the Cameron Trust Company in the petition is the .following.,.....

“That afterwards said Cemetery .Caretaking Company executed a deed of trust to . the defendant, the Cameron Trust Company, a corporation. Wherefore, plaintiffs pray that said, deed and deed of trust be cancelled and adjudged null and void by tbe court, and the record title thereto be divested from defendants and vested in plaintiffs as it was prior to the record of said deeds, and for such other decrees and judgments as to the court may seem just and proper.”

The defendant Cameron Trust Company, in its separate answer, has set out all the facts relating to the sale of.said property to the Cemetery Caretaldng Company, and those relating to the execution and delivery of the deed of trust'to it by said Cemetery Caretaking Company. After setting out various other matters, it prayed the court to decree the title to said property in it, as trustee aforesaid, and to decree that the indebtness described in said , deed of trust is a first lien on the real estate aforesaid, and asked for such other relief as to the court may seem just and equitable. As this is a proceeding in equity, and as the answer aforesaid contains all the facts which could have been set up in the petition relating to said deed of trust, under the doctrine of express aider we will dispose of the case as though the petition contained the necessary facts calling in question the validity of said deed of trust. [Tucker v. Wadlow, 184 S. W. (Mo.) l. c. 70; Donaldson v. Butler Co., 98 Mo. l. c. 166-7, 11 S. W. 572; Hughes v. Carson, 90 Mo. l. c. 402-3, 2 S. W. 441; Garth v. Caldwell, 72 Mo. l. c. 629-30.]

It stands admitted in the record that the land conveyed by Pinch to Smith and others in 1873 was laid off into lots and platted as a cemetery, before any conveyance was made to the Cemetery Caretaking Company in 1913. The answer of defendant Cameron Trust Company, after setting out the facts relating to said conveyance from Pinch to Smith et ah, alleges “that said persons and #aid company platted and dedicated said real estate to cemetery purposes exclusively.” In the deed from Smith, as president, to the Cemetery Care-" taking Company, preceding the description of the land, will be found the following: “a certain lot of land to be used as a burying ground, lying and being in thé County of Ray and State-of Missouri” (here follows the description of the land conveyed).

■ It is undisputed, as shown by the endorsements on said bond, and by the oral evidence, that a good many of the lots laid off and platted as aforesaid, ,had been: conveyed to various persons, among whom were a number of the grantees in the deed from Finch to Joseph A. Smith et al. It is likewise admitted that said last named lots contained the remains of many persons who had been interred thereon. ( The deeds aforesaid were all recorded. The defendant Cameron Trust Company, as shown by the record, had either actual or constructive notice, and probably both, that the property in controversy had been platted and dedicated as a public cemetery, and that the remains of nearly all the grantees in the Finch deed, as well as many of their friends and relatives, were buried on said land, before either defendant acquired any conveyance for' said land. If the deed of trust aforesaid should be sustained as a first lien on the property in controversy, a foreclosure of same would either cast a cloud upon the rights of those whose friends and relatives are buried on said land, or would result in diverting said property from its original public use as a burying ground and converting the same into a commercial asset. The deed of trust, on its face, does not purport to have been given for the purpose of raising funds to improve, or keep in repair, the Lawson Cemetery. Nor does the evidence tend to show that such was its purpose. On the contrary, it is manifest that said deed of trust was given to secure bonds which were not intended to be used in repairing or improving said cemetery.

Without extending this discussion further, we hold, that said deed of trust, as to the property in controversy, is invalid and was properly cancelled by the trial court. Wolford v. Crystal Lake Cemetery Assn., 54 Minn. 440, 56 N. W. 56; Anderson v. Acheson, 110 N. W. l. c. 339-40; Brown v. Maplewood Cemetery Assn., 85 Minn., 498; Spear v. Locust Wood Cemetery Co., 72 N. J. Eq. 821, 66 Atl. 1068; First Natl. Bank v. Hazel, 89 N. W. 378.]

IV. In view of the conclusions heretofore reached, we reverse and remand the cause, with directions to the trial court to set aside its former decree herein, and to enter a new decree in conformity to the views heretofore expressed.

Railey and White, GG., concur.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    RUTH ALES, Appellant, v. HARRY EPSTEIN.
    Division Two,
    June 25, 1920.
    1. ALIEN: Right to Sue for Real Estate. Under the statute (Sec. 750, R. S. 1909) declaring that “it shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become citizens ... to hereafter acquire, hold or own real estate, or any interest therein, in this State, except such as may be acquired by inheritance,” such a person cannot maintain a suit to have the title to real estate vested in her, or to have a constructive trust therein declared in her favor.
    2. .-: - — : Court of Equity. It being unlawful, as declared by the statute, for an alien to acquire, hold or own real estate, it would be equally unlawful for a court of equity to aid her in violating said law.
    3. -: -: Suit By State. If the alien has received a deed to real estate, conveying to her the absolute title- to same, then it might be well said that the State alone could attack the conveyance, declare a forfeiture and take the property on the ground that the grantee is an alien; but the situation is wholly different . where the alien has received no conveyance and applies to a court of equity to divest the title out of defendants and vest it in her.
    Appeal from Jasper Circuit Court. — Eon. R. A. Pearson, Judge.

      Affirmed.

      John J. Wolfe and W. J. Owen for appellant.
    The fact that plaintiff is and was, at the time of acquiring an interest in the property in controversy by becoming the purchaser at a public sale, an alien, is not available to defendants as a matter of defense in this suit. Pembroke v. Huston, 180 Mo. 627; Omnium Inv. Co. v. Trust Co., 65 Kan. 50, 68 Pac. 1089; Gray v. Kaufman, 82 Tex. 65, 17 S. "W. 513; Otiz DeBenevides, 61 Tex. 60; Williams v. Bennett, 1 Tex. Civ. App. 498, 20 S. W. 856; Bradstreet v. Oneida County, 13. Wend. (N. Y.) 546; Heiler v. Goodman Motor Co., 3 A. L. R. 336.

      Haywood Scott'for respondents.
    (1) A resulting trust cannot be enforced by an alien in opposition to statutes forbidding or circumscribing her right to hold property. Bispham’s Principles of Equity, see. 82, p. 130, note 5; Perry on Trusts, sec. 131; Zundell v. Gess, 73 Tex. 144. (2) Appellant could not maintain this suit because she is an alien, being a citizen, with her husband, of Russia, with whom we have no treaty on the subject. Sec. 750', R. S. 1909; Case v. Kelley, 133 U. S. 21;-State ex-rel. v. Superior Court, 74 Pac. 686. (3) There never was any treaty between the United States and Russia, authorizing a Russian to hold real estate in this country. The only provision coiicerning the holding of land in this country 'by á citizen of Russia, in any treaty, was that such citizen could take by inheritance and could then hold the land inherited only during the time that it was necessary to sell it. Treaty of 1832, p. 1514; 2 Molloy, Treaties, art. 3. (4) This treaty was terminated in 1913. 3 Charles, Treaties, p. 98. (5) At common law there is no difference between alien friends and enemies in respect to their rights to purchase and hold real estate. Yeo v. Mercereau, 18 N. J. L. 387.
   RAILEY, C.

This is a proceeding in equity, and was commenced in the Circuit Court of Jasper County, Missouri, at Carthage, on, January 17, 1918. The cause was transferred to the circuit court of said county at Joplin, and tried there. The petition alleges that in December, 1917, the legal title to Lot 6 in Moffet’s Subdivision, an addition to Joplin, Jasper County, Missouri, was vested in the heirs of Mahala J. Chamberlain, deceased, namely, Albert Hennel, Nellie Elliott, Beulah Hennel, Anna G. Thompson, Mabel Hennel and Kate Hennel, as tenants in common; that at the November Term, 1917, of the Carthage Circuit Court, there was pending therein, a partition suit between said Albert M. Hennel, as plaintiff, and the other tenants in common, supra, as defendants, in which a decree was rendered providing for the sale of the above lot, at public vendue, by L. C. Wormington, special commissioner; that said commissioner advertised said property for sale at the Carthage 'Court House on December 20, 1917; that for a long time prior to said last named date, plaintiff herein had been in possession of said real estate as tenant; that said property was reasonably worth $4,525, and more; that plaintiff and1 defendant Harry .Epstein had been personal friends for a long time, and she often went to him for counsel and advice in matters pertaining to her business ventures; that, relying on said defendant’s superior ability, and sagacity, and relying upon his honesty and fair dealing with plaintiff, she requested him to go with her to attend said sale, to act in her behalf, and to assist her, in purchasing said property; that plaintiff agreed to pay him, in addition to his expenses, a reasonable sum for his said services; that defendant agreed to áct for her and perform the services aforesaid; that they were both present at the above advertised sale; that plaintiff bid for said property $4,525, it being the highest bid, and which said sum she was willing, ready and able to pay therefor; that ^said commissioner declared said property had been sold to.plaintiff for the above sum; that the undertalcing and agreements- oforesaid were by parol.

It' is further alleged that said Epstein, in violation of said undertaking - and agreement, wrongfully and fraudently, for the purpose of cheating and defrauding plaintiff, in order that he might become the owner of said property, represented that it was to her interest that the deed from the commissioner for said real estate should be made, and delivered, to said Epstein; that he promised, without delay, to convey the same to this plaintiff; that, relying upon said defendant, as heretofore stated, she consented to above conveyance being made to him; that, thereafter, said defendant, in violation of his said agreement, for the purpose of cheating and defrauding her, conspired and confederated with the defenants Benjamin Raymond and David Raymond, whereby they procured said deed to be made to said Epstein and said Raymonds; that at all times since said sale, she has been ready, able and willing to take the title to said property in accordance with said agreement made with said Epstein and to pay said $4,525, with the reasonable expenses and charges of said defendant, etc., and tenders the same into eóurt.

Appellant is here, asking a court of equity to declare, that defendants hold the property in trust for plaintiff; that the court ascertain the amount of all moneys, if any, expended by said Epstein; to determine the interest thereon from date of said sale; to fix reasonable compensation to said Epstein, for his said services, and that said1 defendants be divested of the title to said property, and the same be vested in plaintiff.

Defendants’ answer contains, first, a general denial; second, it alleges that the agreements alleged to have been made in petition were not in writing, and are contrary to the Statute of Frauds; third, that plaintiff released in writing whatever daim she may have had to said property mentioned in -the petition; fourth, that the petition states no cause of action upon which plaintiff can recover in equity against defendants or either of them; fifth, it charges that plaintiff and husband are aliens and, as such, have no right to maintain this action.

Plaintiff moved to strike out the fifth ground above stated, and her motion was overruled. She then filed a reply denying the allegations of said answer.

We will consider the evidence and rulings of the court in the opinion to follow.

On May 18, 1918, the court found the issues against plaintiff, dismissed her bill, and judgment was entered accordingly. A motion for a new trial was filed by plaintiff, which was overruled, and the cause duly appealed by her to this court.

Aliens '

Appellant, in her first assignment of error, contends that the trial court erred in refusing to sustain ^er motion to strike out the fifth paragraph of defendant’s answer, which reads as follows: “That plaintiff and husband are aliens and subjects bf the Kingdom of Russia and not citizens of the United States, -and have not lawfully declared their intention of becoming such, and under the law cannot; hold real estate, and cannot maintain this suit for said lot, even though she might otherwise have some interest therein/’

In passing upon said motion, the allegations of paragraph five, supra, must be taken as true. Section 7'50, Revised Statutes 1909, among other things, contains the following provisions:

“It shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become such citizens, . . . to hereafter acquire, hold or own real estate so hereafter acquired, or any interest therein, in this State, except such as may be acquired by inheritance. ’ ’

Appellant is here, asking a court óf equity to declare in her favor, a constructive trust, and to vest the title to the real estate aforesaid in her, regardless of the plain provisions of above statute.

If the plaintiff had received a deed to the real estate in controversy, conveying to her the absolute title to same, and these defendants were seeking to divest her of said title, on the ground, that she is an alien and could not hold the real estate, then it might be well said, that the State alone, could attack the conveyance, declare a, forfeiture and take the property. If -it was unlawful, as declared by above statute, for plaintiff, under the circumstances of this case, to take and hold the real estate aforesaid, it would be equally as unlawful for a court of equity to aid her in violating said law. We are therefore, of the opinion, that said paragraph five of defendants’ answer constitutes a valid defense in this cause, and that the trial court committed no error in overruling appellant’s motion to strike out same. [Fishing and Hunting Club v. Kessler, 252 Mo. l. c. 436; Davis v. Realty Co., 241 Mo. l. c. 259-69; Garrett v. Kansas City Coal Mining Co., 113 Mo. l. c. 339; Pacific Railroad Co. v. Seely, 45 Mo. 212; Case v. Kelly, 133 U. S. l. c. 28; United States v. Mo. Pac. Ry. Co., 152 U. S. 300; Baker v. Schofield, 243 U. S. 120; Barnes v. Multnomah County, 145 Fed. l. c. 700; South & North Ala. Railroad Co. v. Highland Ave. & Belt Railroad Co., 119 Ala. 105; 4 Clark & Marshall on Private Corporations, sec. 230, p. 3254; 3 Thompson on Corporations (2 Ed.), sec. 2393.]

In Case v. Kelley, 133 U. S. l. c. 28, Mr. Justice Miller, in discussing the subject before us, said:

“It is next objected to tbe principle adopted by the court that the limitation upon the power of the corpora-' tion to receive land is one which concerns the State alone, and the title to such lands in a corporation can. only be defeated by a proceeding in the nature of a quo ivarranto on behalf of the State. The case of National Bank v. Matthews, 98 U. S. 621, is strenuously .relied on to support this view. We need not stop here to inquire whether this company can hold title to lands, which it is impliedly forbidden to do by its charter, because the case before us is not one in which the title to the lands in question has ever been vested in the railroad company, or attempted to be so vested. Tbe railroad company is here is, not wbetber the courts would deprive it of sucb plaintiff in tbis action, and is seeking to obtain tbe title to sucb lands. It has no authority by tbe • statute to receive sucb title and to own sucb lands, and tbe question lands if tbey bad been conveyed to it, but wbetber tbey will aid it to violate tbe law and obtain a title which it has no power to hold. We think the questions are very different ones, and that while a court might hesitate to declare tbe title to lands received already, and in tbe possession and ownership of tbe company, void on the principle that tbey bad no authority to take sucb lands, it is very clear that it will not make itself tbe active agent in behalf of the company in violating tbe law and enabling tbe company to do that wbicb tbe law forbids.”

Tbe same principle is clearly stated in 1 Ruling Case Law, sec. 32, pages 822-3, as follows:

“In tbe absence of statutory prohibition against an alien bolding real estate it follows, as in tbe case of a direct grant or purchase, that a use or trust in real estate for tbe benefit of an alien is valid until inquest and office found; but equity will never raise a resulting trust in fraud of tbe laws of tbe land, and therefore where an alien purchases land and takes an absolute conveyance in tbe name of a citizen, without any agreement or declaration of a trust, tbe law will not raise a trust in favor of the alien purchaser, who cannot bold tbe land, any more than it would cast it by descent upon an alien heir, who cannot bold it against tbe State. Tbe result in sucb a case must be, either that tbe nominal grantee takes tbe land, discharged of any trust by mere implication of law, or that there is a resulting trust in behalf of tbe people of tbe State, wbicb tbey alone can enforce against tbe grantee in tbe deed.”

Tbe other authorities cited, including the latest utterance of tbis court in Fishing & Hunting Club v. Kessler, 252 Mo. l. c. 436, are to tbe same effect.

The most causal reading of the case of Pembroke v. Huston, 180 Mo. 627, relied on by appellant, will disclose its inapplicability to the case at bar. In the above case, plaintiff sought to rescind a land contract which had been fully performed on each side, on the ground that he was an alien and had no right to hold the land which he traded, etc. Judge Valliant concluded the opinion in said cause, at page 642, as follows: “The plaintiff was not entitled to a rescission of the contract on any theory presented by him.”

The above case is clearly distinguished from the one at bar, by the Supreme Court of the United States, in Baker v. Schofield, 243 U. S. 120.

The trial court was within the law, in refusing to strike out of defendant’s answer paragraph five, supra. Turning to plaintiff’s own testimony, we find, that she and her husband have lived in the United States more than four years; that they are citizens of Russia; that they have never been admitted as citizens of the United States, nor have they ever declared their intention of becoming citizens of this country, etc. We are, therefore, of the opinion, that under the law and facts of this .case, the trial court committed no error in dismissing plaintiff’s bill.

The judgment below is accordingly affirmed.

White and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C.

text:
    CORA I. ANDRUS v. BUSINESS MEN’S ACCIDENT ASSOCIATION OF AMERICA, Appellant.
    Division Two,
    June 25, 1920.
    1. CONSTITUTIONAL LAW: Suicide Statute. Section 6945, Revised Statutes 1909, declaring suicide shall not he a defense in actions upon policies of life insurance, is a valid and constitutional statute.
    2. -: Liberty of Contract: Corporation. Even though a statute were unconstitutional in that it abridges liberty of contract and the right of an individual to make such contracts as he sees fit, it would not for that reason be invalid as to corporations. The State may prescribe the terms and conditions upon which a corporation may be organized and empowered to transact business, and it may altogether forbid a corporation of a designated kind, for instance, an accident insurance company, from doing business in the State.
    3. -: Accident Insurance: Suicide As Defense: Public Policy. The propriety and policy of a statute are not matters that concern the courts. It is for the Legislature to determine whether a statute declaring suicide to be no defense to an action on an insurance policy places a premium on suicide and is inimical to the public welfare and to public morals.
    4. ACCIDENT INSURANCE: Issued by Assessment Company: Suicide As Defense. If an insurance company is organized as an assessment company under the statutes pertaining to assessment companies and issues a policy not authorized by them, it cannot avail itself, in a suit upon the policy, of the exemption from liability provided by them for such companies. If it is organized as an assessment company, whether it be a domestic or foreign company, and the amount it agrees to pay in case of death is in no wise dependent upon the collection of an assessment upon persons holding similar contracts, the defense that the insured committed suicide is not available in a suit on the policy; for such a policy is not a contract on the assessment plan.
    5. -: Suicide: While Sane: Accidental Means: Admission. An allegation in the petition that the insured came to his death “exclusively of all other causes contributing or proximate, through external, violent and accidental means, to-wit, by the drinking of carbolic acid” is not an admission of suicide, but an allegation that the death was accidental; and evidence tending to show that deceased intentionally took carbolic acid is not conclusive of the fact, and even if it were proven that he took it intentionally that would not be conclusive proof that he was sane at the time. Under such circumstances, the issue whether his death was accidental was one for the jury, under proper instructions.
    6. -: -: Accident: Intentional. If the insured’s death was produced by means unexpected, .unintended and unanticipated, it was accidental; if the act and the result produced were exactly in accordance with the intention of the actor, it was not accidental. If the insured was sane, fully conscious of the effect of his act in taking poison, and consequently intended to inflict death upon himself, then the death which he inflicted in pursuance of that intention was not accidental. But even though he took carbolic acid, his resultant death was accidental, if he were insane; to be intentional, he must at the time have been sane, for if insane he was incapable of forming an intention.
    7. -: -: Intentional: Instruction. Where there is evidence that the insured’s death was caused by taking carbolic acid with the intention of committing suicide, it is error, in a suit on an accident policy, to simply instruct the jury that it is “no defense that the insured committed suicide, unless the jury find and believe from the evidence that the insured contemplated suicide at the time he made application for the policy.” It would be proper if it limited the suicide to death self-inflicted while the insured was insane; but suicide if committed intentionally is not accidental.
    8. -: Insured’s Age: Old-Line Policy. If the contract of insurance was not one authorized by the statutes relating to insurance companies doing business on the assessment plan, the fact that the insured was sixty-one years of age at the time he made application for the insurance is no defense to a suit on the policy. Section 6956 of the Assessment Insurance Act provides that “no corporation doing business under this article shall issue a certificate or policy upon the life of any person who is more than sixty years of age,” but if the policy was not one provided for by the article the company was not “doing business under this article,” for the section necessarily does not apply to a policy issued upon some plan other than the assessment plan.
    9. EVIDENCE: Abandoned Pleading. An abandoned pleading is admissible in evidence, but is not conclusive of the fact alleged; it is to be weighed like any other admission.
    Appeal from Jackson Circuit Court. — Hon. E. E. Porter-field, Judge.

      Reversed and remanded.

      Solon T. Gilmore and Gilmore & Brown for appellant.
    (1) An allegation that the insured committed suicide does not state a cause of action under a policy insuring against death resulting from accidental means. Defendant’s objection to the introduction of any evidence, for the reason that the petition did n.ot state facts sufficient to constitute a cause of action, should, therefore, have been sustained. Brunswick v. Ins. Co., 213 S. W. 45; Logan v. Fid. & Cas. Co., 146 Mo. 114;-Laessig v. Assn., 169 Mo. 272; Travelers Ins. Co. v. McConkey, 127 U. S. 661; Whitlatch v. Casualty Co., 149 N. T. 45 ; Tuttle v. Assn., 132 Iowa, 652; Accident Co. v. Crandall, 120 U. S. 527; Blackstone v. Ins. Co., 74 Mich. 592;. Insurance Co. v. Peters, 42 Md. 414. (2) Liberty guaranteed by the Constitution of'Missouri, includes freedom of contract. State v. Loomis, 115 Mo. 307; Allegeyer v. Louisiana, 165 U. S. 578; Ex parte Drexel, 147 Cal. 763. (3) Freedom of contract is inviolate except as it may be restricted and abridged by the State under its police power. State ex inf. v. Standard Oil Co., 218 Mo. 1; Ex parte Drexel, 147 Cal. 763. (4) The police power is the power to prescribe regulations for the public safety, the public health the general welfare and the public morals. Sloan v. Railroad, 61 Mo. 24; State ex rel. v. Greer, 78 Mo. 188.; State ex rel. v. Associated Press, 159 Mo. 410; Powell v. Railroad, 255 M9. 420; State v. Railroad, 242 Mo. 339; Barber v. Connelly, 113 U. S. 27; Weber v. Virginia, 103 U. S. 344. (5) The Legislature may not enact a bill under the police power unless it be a proper exercise of that power. State ex rel. v. Associated Press, 159 Mo. 410; State ex rel. v. Gas Light Co., 102 Mo. 472; State v. Tower, 185 Mo. 79; State v. Addington, 77 Mo. 117; State ex rel. v. Ashbrook, 154 Mo. 375; Mugler v. Kansas, 123 U. S. 661. (6) Sec. 6945, R. S. 1909, is an abridgement of the right of contract. Ex parte Harrison, 212 Mo. 88; Gladney v. Sydnor, 172 Mo. 328. (7) The statute is an incitement and a temptation to holders of life insurance policies to commit suicide, and is, therefore, in violation of Secs. 1, 4 and 30, Art. 2, Mo. Constitution. Ritter v. Ins. Co., 139 U. S. 169. (8) The section in question violates Sec. 5, Art. 12, Mo. Constitution, in that, it requires corporations to conduct their business in such a manner as to infringe the general well being of the State. State v. Railroad, 242 Mo. 339. (9) The section in question violates Article 3 of the Constitution, in that, it is an attempt of the Legislature to infringe upon the powers of the courts. Ziegler v. Railroad, 58 Ala. 594; Hoke v. Henderson, 5 Dev. Law. 1. (10) The plaintiff in her proofs of loss having admitted that her husband was sixty-one years old, is bound thereby in the absence of positive testimony that her statement of his age was incorrect. Castens v. K. & L., 190 Mo. App. 57 ;■ Stevens v. Ins. Co., 190 Mo. App. 673. (11) The policy issued to Vincent R. Andrus was not within the powers of the defendant to issue, and is null and void. Sec. 6956, R. S. 1909; Cass Co. v. Ins. Co., 188 Mo. 1; City v. Bank, 74 Mo. App. 365 ; Froehley v. Ins. Co., 32 Mo. App. 302.

      James G. Smith for respondent.
    (1) The policy sued upon makes of the contract “old line insurance.” • The policy provides for a fixed and definite sum to be paid at the time of the delivery of the policy and a fixed and definite sum'to be paid quarterly thereafter. There is no provision made in said policy for any variation, of those terms. There is no reference made in that policy to any by-laws of the order, nor is any reference made to any assessment or collections of premiums or any other .sums from any other member of the order. R. S. 1909, sec. 6950; Toomey v. Supreme Lodge, K. P., 147 Mo. 129; Aloe v. Life Assn., 164 Mo. 675; Logan v. Casualty Co., 146 Mo. 115; Williams v. Ins. Co., 189 Mo. 70; Jacobs v. Life Assn.,-146 Mo. 523; Wilson v,.Benevolent Assn., .125 Mo. App. 597; Kribbs v. United Order of Foresters, 191 Mo. App. 524; Jennings v. National American, 179 S. W. 789; Young v. Ry. Mail Assn., 126 Mo. App. 332; McDonald v. Life Assn., 154 Mo. .618. (2) If insured had been at issuance of policy sixty-one years of age, the policy issued is not null and void. The doctrine of ultra vires may not be invoked. The statute does not declare such policies void. Cass County v. Ins. Co., 188 Mo. 15. .
   WHITE, C.

The plaintiff; sued as the widow of Vincent R. Andrus, deceased, upon a policy of life insurance issued to him by the defendant. The contract is what is termed an accident policy and insured against “loss resulting from bodily injuries, effected directly, independently and exclusively of all other causes contributing or proximate, through external, violent and accidental means (excluding suicide, sane or insane).”

It is alleged in the petition that the insured met his death “from bodily injuries, effected directly, independently and ■ exclusively of all other causes contributing or proximate, through external, violent and accidental means, to-wit, by the drinking of carbolic acid on said 20th day of May, 1915. ’ ’

Plaintiff prayed judgment for three thousand dollars, the amount named in the policy for loss of life.

Defendant filed an answer containing, first, a general denial; second, an allegation that Vincent R. Andrus at the time of the acceptance of the application and issuance of the policy was 61 years of age at his nearest birthday, that the defendant was a corporation organized under Article III, Chapter 61, Revised Statutes 1909, pertaining to insurance on the assessment plan, and was licensed to do business on that plan, and the policy issued was therefore prohibited by the statute of Missouri and was ultra vires; third, averments that the policy contained a provision excluding liability for suicide, voluntary or involuntary, sane or insane, and Andrus voluntarily committed suicide by drinking carbolic acid with suicidal intent; and that Section 6945, Revised Statutes 1909, the suicide section, is unconstitutional, in violation of Section I of Article II, Section 4 of Article II, Section 30 of Article II, and Section 5 of Article XII, of the Constitution of Missouri.

Plaintiff introduced the policy and proofs of death, she swore that she didn’t know how old her husband was at the time of his death.

The defendant offered its articles of association framed under the provisions of Article III, Chapter 119, Eevised Statutes 1899, now Article III, Chapter 61, Eevised Statutes 1909.

There was a second count in the petition, but it is stated that it was dismissed and the trial proceeded upon the first count. The terms of the policy and the statements in the application, the character of the company shown by its articles of association and the business transacted, and other facts, will be considered in treat* ing of the several questions arising in the case. There was a judgment for plaintiff for the amount sued for and defendant appealed.

statute,

I. Appellant attacks the constitutionality of Section 6945, Eevised Statutes 1909, which declares suicide shall not be a defense in suits upon policies of life insurance, and asks this court to examine that statute and the reasons advanced for its alleged conflict with certain provisions of the Constitution of Missouri, as mentioned in the answer. The argument is that it is unconstitutional because it abridges the fight of contract; the constitutional guaranty of the right to liberty includes the right to make such contracts as the individual sees fit.

If the argument of appellant was sound as applied to individuals it would not necessarily apply to corporations which are creatures of the statute. This court has said in the case of Julian v. Kansas City Star, 209 Mo. l. c. 66: “The Legislature in dealing with artificial creatures of the law may, in certain particulars, make thém a class to themselves, and impose conditions upon them not imposed upon individuals.” And further, on page 67: “The State in issuing the charter may impose its own terms and when accepted the corporation is bound by the terms.”

The State in prescribing terms and conditions upon which a corporation may be organized and may be empowered to transact business merely exercises the ordinary power vested in the sovereign state. It could forbid accident insurance companies from doing business in Missouri altogether, which it would be powerless to do in regard to natural persons. It can limit the activities of a corporation and prescribe the manner and conditions under which it may transact business in a way that could not,be applied to individuals. This has been determined so often that argument in support of the distinction between artificial and natural persons is unnecessary. [N. W. Life Ins. Co. v. Riggs, 203 U. S. 243, l. c. 254; Applegate v. Travelers’ Ins. Co., 153 Mo. App. l. c. 82-3; Houston v. Pulitzer Pub. Co., 249 Mo. l. c. 338.]

Appellant argues at length that the statute, by declaring suicide to be no defense to an action on an insurance policy, places a premium on suicide and is inimical to public welfare and to public morals. In that argument the appellant merely attacks the propriety and the policy of the statute — a consideration which does not concern this court. It is within the discretion of the Legislature to determine the propriety of an enactment and decide whether it may have a beneficial effect upon the subject to which it applies, and that determination is not to be questioned by this court in determining the validity of the statute.

Defense^

II. The appellant describes itself as a company formed upon the assessment plan within the provisions of Article III, Chapter 61, Revised Statutes 1909. That raises the question as to whether the suicide statute, Section 6945,- would apply to policies issued by it and whether Section 6956, Revised Statutes 1909, limiting the issuance of a policy to one under 60 years of age is applicable to policies of this company.

Section 6950, Revised Statutes 1909, defines a contract of insurance upon the assessment plan as one where the payment of the benefit is in “any manner or degree dependent upon the collection of an assessment upon persons holding similar contracts.”

It has been held by this court that a fraternal benefit association, if it issues contracts of insurance which do not depend upon the collection of assessments but provide for the payment of fixed sums — in other words, old-line policies — is bound by such contracts. [Toomey v. Supreme Lodge K. P., 147 Mo. 130, l. c. 138-9; Aloe v. Fidelity Mut. Life Assn., 164 Mo. l. c. 687; McDonald v. Life Assn., 154 Mo. 618, l. c. 627 (citing cases).]

In the case last cited it is said that the amount to be • paid in case of death “does not depend in any manner upon the collection of an assessment upon persons hold- 1 ing similar contracts, and that is the test under our stát- ‘ utes as to whether or not a company is an assessment', company.” And further on page 628: “For it devolves r upon the defendant to show not only that it is an assess- • ment company, but that the policy as issued is such a policy as an assessment company is authorized to issue, otherwise it is bound by its contract and is estopped to ' plead that the contract is ultra vires/’

If a company organized under Article III of the Insurance Chapter issues a policy not authorized by1 that article, it can not avail itself, in a suit upon such policy, of the exemptions from liability provided for such companies. [Ordelheide v. Modern Brotherhood, 268 Mo. 346-7.]

In this case the policy issued to the deceased provides for the payment of a fixed assessment of six dollars on the fifteenth day of March, June, September and. December of each year. The benefit to be paid is . a definite fixed sum of three thousand dollars upon the loss of life and the performance of the conditions relating to proofs of loss. .There is nothing in the policy to indicate that the payment of the benefit is in any manner or degree 'dependent upon the collection of assessments upon persons holding similar contracts. It is therefore not a contract upon the assessment plan as defined by the statute. [Williams v. Ins. Co., 189 Mo. 70, l. c. 81.]

The suicide statute, Section 6945, provides that it shall be no defense that the insured committed suicide unless he contemplated suicide at the time he made the application for insurance. That section is in Article II of Chapter 61, entitled “Life and Accident Insurance.” Section 6959, Revised Statutes 1909, found in Article III relating to Fraternal Benefit Insurance, after providing for annual reports, has this proviso:

“And all such foreign companies are hereby declared to be subject to, and required to conform to the provisions of Sections 6945, 7042, 6937 and 6940 of the Revised Statutes of Missouri of 1909, and governed and controlled by all the provisions in said sections contained: Provided, always, that nothing herein contained shall subject any corporation doing business under this article to any other provisions or requirements of the general insurance laws of this State, excépt as distinctly herein set forth and provided.”

It may be noted that at the time of the issuance of the policy which this court had under consideration in the Ordelheide case, 268 Mo. 339, supra, Section 1408, Revised Statutes 1899, then in force, contained this clause:

“Such associations shall be governed by this act and shall be exempt from the provisions of the insurance laws of this State, and shall not pay a corporation or other tax, and no law hereafter passed shall apply to them unless they be expressly designated therein.”

And' that clause appears in substantially the same form in Section 7109, Revised Statutes 1909. '

The question -determined in that case was not whether the exemption clause in Section 6959 relieved fraternal benefit societies of the restriction in Section 6945,- but whether the policy issued was one to which the exemption- applies, and it was held the policy was such that suicide was no defense because Section 6945 applied.

The proviso quoted from Section 6959 applies to ‘ ‘ all such foreign insurance companies.” The defendant in this case is a domestic company. The Kansas City Court of Appeals has held that the suicide statute is applicable to all policies issued by assessment companies whether domestic or foreign, on account of the language of Section 6959, quoted above in italics. ' [Gates v. Aid Association, 198 Mo. App. 688; Anderson v. Missouri Benefit Assn., 199 S. W. 740-741.]

The policy in this case is not one upon the assessment plan and for that reason, under the ruling in the Ordelheide case, suicide is no defense to an action on it provided suicide is an accident within the terms of the policy.

Accidental Suicide. “

III. The point made by appellant is that the plaintiff should not recover because- it is admitted the insured committed suicide while sane and that the death therefore, the result of “accidental † was not> means.”

It is well to note the issue as presented in the pleadings and supported by the evidence. The allegation of the petition is that the insured came, to his death, “Exclusively of all other causes contributing or proximate, through external, violent and accidental means, to-wit, by the drinking of carbolic acid.” This is not an allegation of suicide, it is an allegation that the death was accidental in the drinking of carbolic acid. The answer alleges that the insured “died as a result of drinking carbolic acid with suicidal intent.”

The evidence upon that point appears in various documents, the most important of which is a letter addressed to the company by the plaintiff’s attorney after the death wherein, he refuses to accept a check sent by the company in repayment of the assessments which had been paid by the insured. The repayment was offered on the ground that the insured was of an age beyond the insurable limit of 60 years. [Sec. 6956, R. S. 1909.] The letter contains this statement: “In reference to the clause, ‘Even if we could there would he no liability in this case on” account of the manner and circumstances of his death,’ we concede that Mr. Y. R. Andrus came to his death by carbolic acid poisoning self-administered by him for the purpose of ending his life, or in other words committing suicide. However under the laws of this State suicide is not a defense on a claim under an accident insurance policy. Therefore, we renew our demand upon you for the full payment under the policy. ’ ’

The certificate of the coroner who viewed the body appears in proof of loss and states that in his judgment the cause of death was “carbolic acid poisoning and to, the best of my knowledge such carbolic acid was self-administered.”

One C. F. Jennings stated in the proofs of loss: “Cause of death. Carbolic acid poisoning.”

The attending physician made the same statement. This is all that appears in the evidence as to the manner and cause of the insured’s death. This does not prove conclusively that the insured took the carbolic acid with the intention of committing suicide. The admission in the letter of the attorney would be evidence tending to show that he took it intentionally, but it would not be conclusive of that fact, and if it were proven that he took it intentionally that would not be conclusive that he was sane at the time.

■ This court in the case of Lovelace v. Travelers’ Protective Assn., 126 Mo. 104, quoted a number of definitions of accident, not only from the dictionaries, but from reported cases in a number of states. In none of them is an “accident” defined so as to include an intentional act. Where a result is produced, by a means unexpected, unintended and unanticipated, it is accidental; but if the act and the result produced are exactly what was in accordance with the intention of the actor it was not accidental.

In this case the plaintiff can recover only if death was produced by accidental means. If the insured was sane, fully conscious of the effect of his act, and consciously intended to inflict death upon himself, then the death which he inflicted in pursuance of that intention was not accidental.

In the recent case of Brunswick v. Standard Accident Insurance Co., 278 Mo. 154, 213 S. W. 45, this court reviewed the authorities at great length in construing a clause similar to the one under consideration here. The following rules may be deduced from the holding in that case:

(a) If the deceased committed suicide while insane his beneficiary could recover and Section 6945 removes the defense of suicide.

(b) If the insured, while sane, for the purpose of committing suicide intentionally swallowed poison, his consequent death was not accidental within the meaning of the policy. [l. c. 166.]

(c) After it was shown that the insured swallowed the poison and the question arose whether the act was accidental or intentional, a presumption arises from the love of life, in the absence of evidence upon the point, that it was accidental and this presumption obtained until evidence was adduced in explanation of the act l. c. 172.)

(d) If there was evidence upon the point in explanation of the manner in which the poison was taken, then the presumption ceased to exist and it became a question of fact whether the death, self-inflicted, was accidental or intentional. Unless the evidence shows conclusively that the insured was sane and intentionally took his own life so that the court might declare as a matter of law that the death was intentional, it was a question for the jury, from such evidence as' was produced, to say whether the insured .was sane or insane at the time, and whether if sane the death was inflicted-intentionally or accidentally.

(e) The burden was on the defendant to prove that the death under such circumstances was intentional and not accidental; that is, the burden would be upon the defendant, in a case of suicide, to prove that the insured was sane and committed the act which took his life with the intention of committing suicide.

It may be added that in the Brunswick case there Was no evidence indicating that the insured was insane and there was considerable evidence indicating that he took cyanide of potassium with the intention of committing suicide. It was held that it was a question for the jury and the case should be submitted to the jury. [See also Reynolds v. Casualty Co., 274 Mo. l. c. 97; Scales v. National Life & Accident Ins. Co., 212 S. W. l. c. 9.]

In this case, under the evidence produced, the question should have been submitted to the jury with instructions drawn in accordance with the principles laid down in the Brunswick case. Instruction B, given on behalf of plaintiff is as follows:

“Even though the jury believe from the evidence that injured committed suicide, it shall be no defense that the insured committed suicide, unless the jury find and believe from the evidence, that the insured contemplated suicide at the timé he made his application for the policy or certificate of insurance, and any stipulation in the policy to the contrary is void.”

This instruction was erroneous because suicide if committed intentionally is not accidental. It would have been proper if it had limited the suicide to death self-inflicted while the insured was insane.

Instruction numbered 11 asked by the defendant and refused by the court, is as follows:

‘ ‘ The court instructs the jury that if you believe from the evidence that Vincent R. Andrus committed suicide, then his death was not accidental, unless you further believe from the evidence that at the time he drank carbolic acid, he was so insane as to be unconscious of the physical nature and consequences of his act.”

That instruction is correct according to the doctrine announced in the Brunswick ease and' should have been given.

Insured's Sixty.

IV. The appellant asserts that the plaintiff is not entitled to recover because deceased was sixty-one years of age when the policy was issued to him in violation of Section 6956, Revised Statutes 1909, which provides: “No corporation doing business under this article shall issue a certificate or policy upon the life of any person who at nearest birthday is more than sixty years of age.”

As a matter of fact the evidence does not show that Andrus was more than sixty years of age. His application made on the tenth day of December, 1914, statéd that he was sixty years of age. A previous application made April 30, 1913, stated that he was fifty-nine years of age. Mrs. Andrus, in her beneficiary statement presented to the defendant, gave her husband’s birthday as' September 7,1853, which if true would make him 61 years of age the tenth of December, 1914, the time at which he made the application. But Mrs. Andrus in her testimony swore that she didn’t know how old he was; whether he was 59, 60 or 61, and she didn’t believe he himself knew how old he was. So far as the evidence goes it is not conclusively shown that his statement in the application is untrue-.

But appellant bases its position upon an allegation in the second count in the plaintiff’s petition to the effect that the defendant is estopped to deny liability on account of the insured’s age, because it knew he was 61 years of age at the time they wrote the policy. It is said in the brief of respondent and not denied, although it dosen’t appear clearly in the abstract of the record, that the second count was abandoned and that the trial proceeded upon the first count in the petition and a verdict rendered upon the first count. The second count was not afterwards introduced in evidence and therefore was not before the jury for the purpose of weighing the allegation as an admission of the plaintiff. The abandoned pleading was admissible in evidence, but was not conclusive as to the fact alleged. It could be weighed like any other admission of defendant. [Walser v. Wear, 141 Mo. 443; Ettenson v. Railroad, 248 Mo. l. c. 416.]

At the instance of the defendant the court instructed the jury if it believed from the evidence that Andrus, on the tenth of December, 1914, was more than sixty years of age, .at his nearest birthday, the verdict must be for the defendant. So there was a finding by the jury.that he was not over sixty years of age at the time.

Even if it were shown that he was over sixty years of age at the time he made the application it would not avail defendant in a suit on this policy. As we have seen above, the contract of insurance on which the suit is brought is not one authorized by Article III, Chapter 61, under which the appellant was organized; it was not a contract of insurance upon the assessment plan as defined in Section 6950, Revised Statutes-1909.

Section 6956 says that: “No corporation doing business under this article shall issue a certificate or policy upon the life of any person who is more than sixty years of age:”

“Doing business under this article” means a'policy issued as provided for in the article on the assessment plan. Necessarily it would not apply to a policy issued upon sonde other plan than the assessment plan, because it would not be business “done under this article.” For ■that reason we think that the age of the defendant was immaterial in this ease.

Because of the error of the trial court in giving instruction B on behalf of plaintiff, and in refusing to give instruction 11 asked by defendant, the judgment is reversed and the cause remanded.

Bailey and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion by White, O-., is adopted as the opinion of the court.

All of the judges concur.


text:
    HENRY F. FREIE, Administrator of Estate of HERMAN FREIE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
    Division Two,
    June 25, 1920.
    1. ACTION FOR NEGLIGENT DEATH: Right of Legal Representative to Sue: Section 5425. Section 5425 gives a right of action where none existed at common law, but it points out the persons who may sue, and they alone can sue, and the suit must be brought within the time prescribed by it. Under the common law, adopted in this State in 1816, a personal right of action died with the person; and where no common law right to sue exists at the death of a person, the party suing for damages for a violation of his personal rights must, in order to state a cause of action,- show that he is the person authorized by said section to maintain the action. The husband, there being no children, is authorized by it to sue for the negligent killing of his wife at- any time within one year after her death, but his administrator is not authorized, by said section to maintain an action for damages for her death. If he died without suing, his administrator is not given the right by • said section to take his place, for' said section does not name the legal representative as a party who may maintain the action.
    2. -: -: Sections 105-6 and 5425: In Pari Materia. Sections 105-6, being parts of the Administration Act and enacted in 1835, and Section 5425, being a part of the Damage Act and enacted in 1855, are not in pari materia, since the one relates to damage to property and the other to damage to person.
    3. -: -: --: Administrator of Deceased Husband. Sections 1-05-6 and 5425, Revised Statutes 1909, cannot be so construed to be in pari materia as to authorize the administrator of • the husband, who survived his wife, there being no children, to maintain an action for damages for the negligent killing of the wife. The cause of action w"as personal to the husband, and when he died the cause of action died with him.
    Appeal from Franklin Circuit Court. — Hon. B. A. Breuer, Judge.
    Affirmed.

      Leonard & Sibley, Jesse H. Schaper and Shepard Barclay for appellant.

      (1) The demurrer is not well taken. The history of the statutes, as to death by wrongful act, shows the legislative intent to create a right of survivorship in this plaintiff, and such history should be considered in interpretation of the present law. Johnson v. Railroad, 196 U. S. 17; Macke v. Byrd, 131 Mo. 682; Greely v. Railroad, 123 Mo. 157. (2) These statutes (giving an action in such circumstances) should not he construed as in “derogation” of any ancient law, but as highly humane and remedial; and as such, effect be given to the purpose they import, to create survivorship of the rights of action conferred. State v. Canton, 43 Mo. 48; Johnson v. Railroad, 196 U. S. 17; Ham v. Robinson Co., 146 Ga. 442; Huntington v. Attrill, 146 U. S. 657. (3) Before our remedial statutes, plaintiff’s intestate would have had a cause of action for loss of his wife’s services and “consortium,” constituting a property right which would survive to his administrator.- Philhy v. Ry., 46 Wash. 173; Eden v. Railroad, 14 B. Mon. 204; James v. Christy, 18 Mo. 162; Railroad Co. v. Banton, 54 Pa. St. 495; Murphy v. Railroad,'88 N. Y. 445. (4) The right of action in plaintiff’s intestate created by the statute (Sec. 5425) survived to his administrator; and it was error in the circuit court to hold otherwise. Meekin v. Ry., 164 N. Y. 145; Cooper v. Elect. Co., 63 N. J. L. 558; Beben v. Transit Co., 186 Mo. 430. (5) The property rights of the intestate to compensation for expenditures for medical treatment, nursing and funeral expense (which were caused by the negligence complained of) also survived and were recoverable by plaintiff, as his adminstrator. Cases above cited. (6) All the laws of the State in pari materia should be considered in interpreting any part of them on the subject of survivorship of the right of action described in Section 5425 (as amended in 1911). R. g; 1909, secs. 105, 106, 1726, 5426-7-8; Laws 1911, p. 204, sec. 5425; Macke v. Byrd, 131 Mo. 690; State v. Slover, 126 Mo. 659.
    IF. F. Evans, Edward T. Miller and Jam.es Booth for respondent.

      (1) Under the common law a right of action on the death of another did not survive, but abated at once. Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493; McNamara v. Slavens, 76 Mo. 330; Town of Carrollton v. Rhomberg, 78 Mo. 547; .Gibbs v. City of Hannibal, 82 Mo. 143; Vawter v. Railroad, 84 Mo. 683; Barker v. Railroad, 91 Mo. 86; Davis v. Morgan, 97 Mo. 79; McIntosh v. Railroad, 103 Mo. 133; Hennessy v. Brewing Co., 145 Mo. 112; Brink v. Railroad, 160 Mo. 91; McGinnis v. M. C. & F. Co., 174 Mo. 229; Packard v. Railroad, 181 Mo. 426; Strode v. Railroad, 197 Mo. 626; Casey v. Railroad, 205 Mo. 724; Elliott v. Kansas City, 210 Mo. 576; Ins. Co. v. Brame, 95 U. S. 754. (2) Section 5425, as amended, gives no right of action to the executor or administrator of any of the beneficiaries therein named, and plaintiff, as administrator of his father’s estate, is without remedy for the death of his mother. In other words, the right to maintain the action is created or given by this section, and by this section alone, and as this right is conferred in express terms by the statute upon the beneficiaries therein named it does not authorize an action by the administrator of any such beneficiary. And this because, his claimed right of action being created by statute and unknown to the common law, he can maintain it only when by his pleadings he brings himself within the terms of the statute when strictly construed. Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylester, 205 Mo. 493; Hegberg v. Railroad, 64 Mo. App. 553; Barker v. Railroad, 91 Mo. 94; Mathieson v. Railroad, 219 Mo. 548. (3) This statute (Lord Campbell’s Act, modified by subsequent changes) does not create a new cause of action, but simply transmits or continues the right of action the deceased would have had, had death not ensued, subject to the limitations and restrictions therein contained. Proctor v. Railroad, 164 Mo. 119; Gilkeson v. Railroad, 222 Mo. 173; Sylvester v. B.ates, 205 Mo. 493, (overruling Behen v. Railroad, 186 Mo. 430); White v. May, 64 Mo. 558; Gray v. McDonald,. 104 Mo. 311; Hennessy v. Brewing Co., 145 Mo. 112; Strode v. Railroad, .197 Mo.'626. (4) This cause of action was not a vested property right and did not survive to this plaintiff as administrator of the estate of Herman Freie, deceased, under the provisions of Sees. 105, 106, R. S. 1909. (5) The words “property, rights or interest” mean, as used in these sections, “property-rights or interest.” Yawter v. Railroad, 84 Mo. 143; Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493. (6) Sections 105, 106, were enacted in 1835, while our Lord Campbell Act, with various modifications since that time, was enacted in 1865 (see Gilkeson v. Railroad, where' the history of these statutes is given). Under these circumstances, Section 5425, being a later statute than Sections 105, 106, and the former applying specifically to a particular subject which clearly includes the matter in question and the latter sections being general in their terms, and those terms being such that, standing alone, would include the same subject-matter and thus conflict with Section 5425 as amended, then the former act, if not a repeal of the latter and general statutes, is an exception to them. Gilkeson v. Railroad, 222 Mo. 173; Rusohenberg v. Railroad, 161 Mo. 70; State ex rel. v. Dabbs, 182 Mo. 366; State ex rel. v. Frazier, 98 Mo. 426; State ex rel. v. Slover, 134 Mo. 19. (7) Sections 105, 106 have reference to property rights alone and by their express terms give no right of action for wrongs causing the death of another. Gilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493; Ryan v. Ortgier, 208 S. W. 856; Millar v. Transit Co., 216 Mo. 99; Stanley v. Yogel, 9 Mo. App. 98; Showen v. Railroad, 164 Mo. App. 41; Greer v. Railroad, 173 Mo. App. 276; Downs v. Railroad, 184 S. "W. 995.
   RAILEY, C.

The amended petition upon which the case was disposed of in the trial court is stated by counsel for appellant, as follows:

After the usual allegations of defendant’s incorporation as a railway company, it charges, that defendant, while operating its train in said county, negligently ran through the town of Catawissa, at a high and dangerous rate of speed, over a public road or street crossing, without signal by bell or whistle, where the view of travelers on the road- was obstructed, in consequence of which negligence, Mrs. Elizabeth Freie was killed by one of defendant’s trains at said crossing; that' Herman Freie, her husband, was also injured on the same occasion, but survived his wife some time. Plaintiff is his administrator, since duly appointed by the probate court, duly qualified, and in charge of the estate of Herman Freie; that the latter, by defendant’s said wrongful acts, was deprived of the “society, comfort, aid, companionship, services and consortium” of his said wife, and of his beneficial interest, as her husband, in her estate; and that, because of said negligence' and injuries, various items of expense, (detailed) were incurred by said Herman Freie, including medical and nursing, expenses, and the funeral expenses of .his said wife; concluding with a demand for $10,000 damages.

Respondent demurred to above petition upon the following grounds:

“1. Said aprended petition fails to state facts sufficient to constitute a cause of action against defendant.

“2. It appears from the face of said amended petition that no cause of action against defendant survives in favor of plaintiff against defendant on account of the matters ánd things in said petition alleged.”

The trial court sustained said demurrer. Plaintiff declined to plead further. Final judgment was entered for defendant and plaintiff duly appealed the cause to this, court.

Hfetory^of statutes.

I. As a matter of convenience, in considering the questions involved, we herewith set out the origin, and legislative history, • of Sections 105-6, Revised Statutes 1909. They were first enacted in 1835, appear in the Revised Statutes of 1805, at page 48, and were known therein as Sections 24 and 25. In the Pevised Statutes of 1855, at page 138, they were Sections 26 and 27. In the General Statutes of 1865, page 491, they were Sections 29 and 30. In the Revised Statutes of 1879, they were Sections 96 and 97. In the Revised Statutes of 1889, they continued as Sections 96 and 97. In the Revised Statutes of 1899, they were still known as Sections 96 and 97. These sections were never amended after their enactment- in 1835, and during all of this period they have remained as a part of the administration statute of our State. These sections read as follows:

“See. .105. For all wrongs done to property, fights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.

“Sgc. 106. The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the ease for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

¥e likewise set out the origin and history of Section 5425, Revised Statutes 1909, as amended by the Laws of 1911, page 203 and following. This section was first enacted in 1855. It appears in the Revised Statutes of 1855, at page 647, as Section 2 of the Damage Act. In the General Statutes of 1865, page 601, it was continued, without change, as Section 2. In the Revised Statutes of 1879, it was continued, without change, as Section 2121. Section 2121 was amended in 1885 (Laws 1885^ pp. 153-4) and, as amended, was carried into the Revised Statutes of 1889, and there known as' Section 4425. The latter was carried into the Revised Statutes of 1899, as Section 2864, without change. The last named section was amended in 1905 (Laws 1905, pp. 135-6-7). The law, as amended in 1905, supra, was carried into the Revised Statutes of 1909, without change, and is there known as Section 5425. The latter was amended in 1911 (Laws 1911, p. 203). The common law was adopted in this State on January 19,1816.

It is well to keep in mind the foregoing; history of Sections 105-6 and 5425, Revised Statutes 1909, in order to correctly understand which of the sections are referred to in the various opinions cited by the courts and in the briefs of counsel.

II. Appellant’s theory of this case is clearly stated under proposition one, page 6, of his reply ‘brief, as follows:

Right of Administrator t0 Sue‘

“The Death-Damage Act (Sec. 5425) creates a right of action in the husband; and in case of his death that right survives to his administrator under Section 105, those laws being in pari materia.’’

Under the common law adopted in this State in 1816, a personal right of action died with the person. In 1855, Lord Campbell’s Act was • adopted in this State, as shown by Section 2, Chapter 51,' Revised Statute 1855, page 647. This section has- continued up to the present' time, with the amendments- thereto heretofore pointed out. It gives a right of action, where none existed at common law. It points out - the persons who may sue, and they alone must sue within- the time prescribed by the statute. [Gibbs v. City of Hannibal, 82 Mo. l. c. 149; Barker v. Ry. Co., 91 Mo. 86; McIntosh v. Ry. Co., 103 Mo. 131; Packard v. Railroad, 181 Mo. l. c. 427; Bates v. Sylvester, 205 Mo. 493; Elliott v. Kansas City, 210 Mo. 576 and following; Clark v. Railroad, 219 Mo. l. c. 538-9; Gilkeson v. Railroad, 222 Mo. 173 and cases cited; Chandler v. Railroad, 251 Mo. l. c. 600-1.]

These cases, and many others referred, to therein, conclusively hold that, in-, an action of this character, where no common-law liability existed, the party suing, must, in order to state a cause of action, show that he is the person authorized by said Section 5425 to maintain the same. In the case at bar the petition alleges that Elizabeth Freie was killed; that her husband, Herman Freie, was injured in the same accident, and after-wards died from the effect of said injuries. It is further alleged that Henry F. Freie was appointed administrator of the estate of said Herman Freie, deceased. The latter, by the terms of ■ Section 5425, supra, was authorized to sue for the death of his wife at any time within the year, as there were no minor children. He died without suing, and his administrator claims the right to take his place under said section. The legal representative is not named as a party who might maintain the action under said section. Unless, therefore, he is authorized to prosecute the suit under some other provision of the law, he is precluded from doing so, by the foregoing authorities.

III. It is contended, however, by counsel for appellant, that Sections 5425 and 105, supra, should be construed in pari'materia and, when thus construed, they authorize the administrator of the husband to maintain an action for the death of the wife.

Turning to Sections 105-6, Revised Statutes 1909, we find that they were enacted in 1835, or practically eighty-five years ago. They have remained a part of the administration statute during all this period. Although innumerable deaths have resulted in this State from violence during said period, and many of which found their way into this court, we are not cited to a single case, in this jurisdiction, which ever held that an administrator, on the facts presented by this record, could, by virtue of Sections 5425 and 105, supra, maintain such an action. On the contrary, at least two cases, which were ably and exhaustively reviewed by this court, were brought here on the theory that an administrator, under such facts ‘as áre presented here, could, under said Sections 105-6 and 5425, when construed together, successfully maintain, such an action. In both cases the right to niáintain same by an administrator was denied. We refer to Gibbs, Admr., v. City of Hannibal, 82 Mo. 143, and Gilkeson, Admr., v. Ry. Co., 222 Mo. 173.

It appears from the record in the Gibbs case that George L. Crosby, while driving with his wife and two infant children in a vehicle, crossing a bridge over a stream in the City of Hannibal, was precipitated into the stream by the fall of the bridge, alleged to have, been caused by the negligence of the city. By reason of the casualty, the father, mother and two infant children perished. It was alleged in the petition, that Mrs. Crosby, the wife, survived her husband and two children, and that, while so surviving, a cause of action accrued to her for the death of each of them. The plaintiff therein was appointed administrator of Mrs. Crosby’s estate and, on December 24, 1877, instituted suit in the Hannibal Court of Common Pleas. The petition consisted of three counts: The first, asking $5,000 for tho death of her husband, and the second and third asking $5,000, respectively, for the death of each of her two children. To the above petition, a demurrer was filed, and sustained by the court. On appeal to this court, the judgment below was unanimously affirmed. Ray, J., after reviewing the authorities, and Sections 96 and 2121, Revised Statutes 1879, which were practically the same as Sections 105' and 5425, Revised Statutes 1909, among other things, at page 149 said:

“These are the only beneficiaries who can maintain such an action. If in any case there be no such person, no suit can be brought by any other person. By the statute the action survives only to the parties named. They alone are the beneficiaries of the statute and it was never intended that such action should survive to the executor or administrator of any one of the beneficiaries named. It is a right personal to the beneficiary, and does not survive to his personal representatives. In the case at bar all the beneficiaries within the purview of the statute perished together in one common disaster and there was no person left to whom the action could survive. It follows that this' action cannot be maintained by the present plaintiff who is the administrator of the wife. Under the statute he has no standing in the court.

“As to the other .question, we think it quite manifest that the Damage Act, or Sections 2122, 2123, supra, have no reference to injuries or damages to property of the deceased, but only to personal injuries and such as the .injured party, if living, might have recovered and such as the jury may deem fair and just with reference to the injury necessarily resulting to such survivor from such death. Injury or damage to property, as such, is not within the contemplation of the Damage Act and, consequently, no recovery can be had in such an action for such injury or damage. Section 96 of the Administration Law has reference exclusively to wrongs done to the property rights or interest ■ of another and by Section 97 of same law do not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries done to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. If any injury or damage was occasioned to the property of the husband in this case by the fall of the bridge occasioned by the negligence of the defendant corporation, the action' therefor, if any, by operation of Section 96 of the Administration Law, supra, survived to the administrator of the husband, if to anybody, and not to that of the wife. Such is the express import of Section 96, supra. That section does not contemplate the injuries and damages, or the actions provided for by the Damage Act.

‘ ‘ The latter survives by special statute, contrary to the common law and only to the parties or beneficiaries named in the special statute. Various other questions have been discussed and numerous cases cited, but we deem them unnecessary to the disposition of the case.

“It follows, therefore, that there was no error in the ruling of the circuit court in sustaining the demurrer of defendant, and its judgment is, therefore, affirmed. All concur.”

The opinion in the Gibbs case was rendered in 1884, and the court was then composed of Judge Hough, Henry, Norton, Ray and Sherwood. The bar, judiciary and General Assembly were informed, by the publication of the above opinion in 1884, that an administrator could not successfully maintain an action on facts exactly like the case before us. The above opinion has withstood the test of judicial criticism during the last thirty-five years and, although the Legislature has been in session many times during said period, the law has never been changed' so as to confer upon an administrator the right to maintain an action under the circumstances of this case.

The personnel of the court having changed since the decision in the Gibbs case, industrious counsel representing the plaintiff in Gilkeson, Admr., v. Ry. Co., 222 Mo. 173, conceived the idea of urging this court to change its ruling in respect to the principles of law declared in the Gibbs case. In the Gilkeson case, it appears from the record, that the father and mother of plaintiff’s intestate were passengers on defendant’s train and were killed on October 10, 1904, through the negligence of defendant in operating the same. Clifford Ragel, their son, fourteen years of age, was injured in the same wreck and died in Pettis County, Missouri, on October 14, 1904. The plaintiff, George G. Gilkeson, was appointed administrator of the estate of Clifford Ragel, deceased, by the probate court of Johnson County, Missouri, duly qualified as such, and commenced the above suit in Johnson Coiinty aforesaid, in two counts. The first was for $5,000, based upon the death of the father, and the second count was based upon the death of the mother. In other words, the administrator of the son’s estate sued in two counts for $5,000 each, based upon the respective deaths of the father and mother The administrator recovered in the court below a judgment upon each count for f5,000. This court, in a unanimous opinion, reversed the cause, and entered judgment here for defendant.

We have before us the record and briefs of counsel in the Gilkeson case. The cause was elaborately briefed upon each suit and fully argued orally. Practically, all the leading authorities cited by appellant’s counsel in this case were presented to the court, and many authorities from other states cited in support of plaintiff’s theory. Sections 105-6 and 5425, supra, were fully discussed upon each side. Judge Woodson, in behalf of Division. One, before whom said cause was pending, delivered an able and exhaustive opinion upon the questions involved, in which all the members of that division concurred. This opinion was rendered in 1909. The court at that time was composed of Judges Lamm, Yalliant, Woodson and Graves.

In passing, it will be observed, that the obiter dictum of Judge Valliant in Behen v. Transit Co., 186 Mo. l. c. 445, so strongly relied on by counsel for appellant here, was not only overruled in terms by Judge Gantt, speaking for this Division in Bates v. Sylvester, 205 Mo. l. c. 501, but in the Gilkeson case, at pages 196-7, the obiter dictum of Judge Yalliant in the Behen case was again overruled, and Judge Yalliant concurred in the opinion overruling same.

With the published ruling in the Gilkeson case, following that in Gibbs v. City of Hannibal, supra, the Legislature has never taken any action to overturn the above eases, and have, apparently at least, acquiesced in the construction placed by this court upon said Sections 105-6 and 5425, Revised Statutes 1909.

It is to the . interest of the public that there be an end to litigation. This Division, having ruled adversely to appellant’s contention in Bates v. Sylvester, 205 Mo. 493, where the statutes aforesaid and authorities are reviewed; and the same result havig been reached in the Gibbs and Gilkeson cases, supra, we do not deem it necessary to either cite, or further consider, the array of authorities in • respondent’s brief sustaining the views heretofore expressed.

Without considering this question further, we are of the' opinion that the trial court reached a correct conelusion in behalf of respondent. The judgment below is accordingly affirmed.

White, G., concurs: Mosley, G., absent.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.