author: VALLIANT, J.

text:
    NELLIE P. SULLIVAN v. WILLIAM McREE GARESCHE, Appellant.
    Division One,
    June 28, 1910.
    1. WILL: In Restraint of Marriage: Void. Testatrix, having seven children, devised all her property to two daughters, Kate and Julia, in equal parts, and provided that “in case of the marriage or the death of either of said daughters, the share of the one marrying or dying shall go to the other. In the event of the marriage of both, said property shall be divided equally among all my children. In the event of the death of both of my said daughters before marriage, said property shall be divided equally among my surviving children.” Held, that that part of the will in restraint of the daughters’ marriage is void, and is to be construed as if the words and conditions in reference to marriage were not in it; but that part eliminated, the will is to be construed as providing that in case of the death of either the estate should go to the othér, and in case of the death of both before marriage the property should he divided equally among testator’s “surviving children.”
    2.--: In Case of Death Before Marriage. It is not in restraint of marriage, and therefore not unlawful, to devise property to one of several children and provide that in case the child shall die before marriage the property shall go to another or others.
    3. -: —:-: Interest of Other Children. Under this will the other five children can have no interest in the property devised to the two daughters until both die without either having been married.
    4'. -: Contingent Remainder. The remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained. Both these contingencies are present in a will of a testatrix having seven children by which she gives all her property to two daughters, and provides that “in case of the death of either of said daughters, the share of the one dying shall go to the other. In the event of the death of both before marriage, said property shall he divided equally among all my surviving children.” Both being now alive the event on which the remainder (if it he a remainder) is to take effect, is the death of both without having married, which may never occur, since either may marry; and which of the other five children will he “surviving” in case of the death of both daughters is also uncertain.
    5. -: --: My Surviving Children: When Vested. The general rule is that if an estate is given by will to the survivors of a class to take effect on the death of the testator the word “survivors” means those living at the death of the testator; hut if a particular estate is given and a remainder is given to the survivors of a class the word “survivors” means those surviving at the termination of the particular estate. So that where the testatrix had seven children, one of whom was Lise, and gave all her property to Kate and Julia and provided that “in the event of the death of both of my daughters Kate and Julia before marriage, said property shall he divided equally among my surviving children,” the remainder will vest in such of testatrix’s children as are living upon the death of Kate and Julia before marriage, and hence, Julia and Kate being yet alive and unmarried, the child of Lise took nothing upon her death.
    6. -: -: Executory Devise. But the will did not create a contingent remainder. The estate given to the two daughters Kate and Julia was an absolute estate in fee simple except that it was subject to be determined upon the death of both of them unmarried. But a remainder cannot follow a fee, it follows a particular estate. Since the devise was to take effect upon the determination of the fee, it was an executory devise, and if testatrix’s other five children should die and after their death Julia and Kate should die unmarried, there would be no person im. esse to take the fee upon their death, and the fee will not revert to testatrix or her heirs, but remains, since there is nothing else in the will to show that the intention of testatrix was that the fee should then determine absolutely, and hence the fee would not be cut down, but remain in Kate and Julia. Therefore, in no event, can the child of Lise, now deceased, ever have any estate in the property.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Affirmed.

      Jones, Jones, Eoclcer & Davis for appellant.
    (1) Appellant lias a vested interest in the reversion under the law. Fearne on Remainders (3 Am. Ed.), pp. 351, 362; Carter v. Barnadiston, 1 P. Williams 515, 3 Bro. P. Cas. 64; Davies v. Speed, Carth. 262; Peterson v. Jackson, 196 111. 40'; 2 Washburn on Real Prop. (6 Ed.), sec. 1514. (2) Appellant has a vested interest in the remainder under the will. Wordsworth v. Wood, 1 H. L. Cas. 129; Doe v. Prigg, 8 B. & C. 231; Wilson v. B'agby, 3 Brown’s Cases Pari. 195; Taafe v. Coninee, 10 H. L. Cas. 64; Fearne on Remainders, p. 351; Schouler on Wills (3 Ed.), secs. 560, 562; Rood on Wills, secs. 580-590; 24 Am. and Eng. Ency. Law, 392, 393 ; 2 Washburn on Real Prop. (6 Ed.), sec. 1544; Moore v. Lyons, 25 Wend. (N. T.) 119; In re Twaddle, 110 Fed. 145; In re Haslett, 116 Fed. 680; Appeal of Barker, 3 Atl. (Pa.) 377; Ross v. Drake, 37 Pa. St. 373; Woelpper’s Appeal, 126 P'a. St. 568; Martin’s Appeal, 185 Pa. St. 51; Nicholl v. Scott, 99 111. 529; Grimmer v. Friederich, 164 111. 245; Jones v. Waters, 17 Mo. 587; Stone v. Lewis, 84 Ya, 474. (3) The will is to be construed according to the intent of the testatrix gathered from the whole will; and if a word or words used, being susceptible to two constructions, will, if given one meaning, exclude the issue of a deceased child of testatrix, whereas if given another meaning, of which they are reasonably susceptible, such issue will not be excluded, the latter meaning is to be adopted. In this case the wó,rds “my surviving children” are to be construed as meaning “my other children.” Dodge v. Sherwood, 176 Mo. 38; Collier’s Will, 40 Mo. 325; Jamison’s Exs. v. Bell, 46 Mo. 546; Brown’s Estate, 93 N. Y. 295; Wilmot v. Wilmot, 8 Yes. Jr. 10; Cole v. Sewell, 2 H. L, Cas. 227; Lapsly v. Lapsly, 9. Pa. St. 130; Passmore’s App., 23 Pa. St. 383; Balsh v. Pickering, 14 L. B-. A. 125; Bacon’s Estate, 202 Pa. St. 543.

      Sclmurmacher S Bassieur for respondent.
    (1) The provision of Maria Taylor’s will, that in the event of the marriage of her daughters, Kate and Julia, the property devised to them shall be divided equally among all of the children, is a condition in total restraint of marriage, and, therefore, void. Williams v. Cowden, 13 Mo. 211; In re Cook’s Est., 3 Phil a. 60; Smythe v.Smythe,90 Ya. 638; Otis v. Prince, 76 Mass. 581; Hoopes v. Dundas, 10 Pa. (10 Barr) 75; Crawford v. Thompson, 91 Ind. 266. (2) The only exception to this rule arises where a devise is made to the widow of the testator, on condition that she does not remarry. Such condition is upheld, in part, on the theory that such a restraint upon a second marriage is not in total restraint of marriage; and, in part, on the theory that the husband is justified in so- devising his property to his widow that she and his children alone shall be benefited by it, and that his bounty shall not be shared by a successor.- Walsh v. Mathews, 11 Mo. 131; Dumey v. Schoeffler, 24 Mo. 170. (3) Where a testator devises an estate to his “surviving children,” without creating an intermediate or particular .estate, the words will ordinarily he construed to mean children living at the time of the death of the testator ; hut where a particular estate is devised and the remainder is given to the testator’s “surviving children, ’ ’ these words are then construed to refer to children of the testator living at the termination of the particular estate; in other words, the language is construed to refer to the period of distribution. Wordsworth v. Wood, 2 Beav. 25, 1 EL L. Cas. 129 ; Cripps v. Walcott, 4 Madd. 11; Young v. Robertson, 8 Jur. N. S. 825; Pope v. Whitcombe, 3 Russ. Ch. R. 124; Howard v. Collins, 5 L. R. (Eq. Cas.) 349; Newton v. Avscough, 19 Ves. Jr. 534; Daniell v. Daniell, 6 Ves. Jr. 297; Bro-grave v. Winder, 2 Ves. Jr. 633; Gibbs v, Tait, 8 Sim. R. 132; Hoghton v. Whitgreave, 1 Jae. and W. 146; Taaffe v. Conmee, 10 H. L. Cas. 64; Blewitt v. Stauffers, 9 L. J. (N. S.) Ch. 209; Olney v. Hull, 21 Pick. 311; Hulburt v. Emerson, 16 Mass. 241; Denny v. Kettell, 135 Mass. 138; Lawrence v. Philipps, 186 Mass. 320; Ballard v. Connors, 10 Rich. Eq. (S. C.) 389; Selman v. Robertson, 46 S. C. 262; In re Winter’s Est., 114 Cal. 186; Seddel v. Wills, 20 N. J. L. 223; Holcomb v. Lake, 24 N. J. L. 686; Slack v. Bird, 23 N. J. Eq. 238; Van Tilburgh v. Hlollinshead, 14 N. J. Eq. 32; Sinton v. Boyd, 19 Oh. St. 30; Hall v. Blodgett, 70 N. H. 437; DeLassus v. Gatewood, 71 Mo. 371; Ringquist v. Young, 112 Mo. 25; Naylor v. Godman, 109 Mo. 543; Dickerson v. Dickerson, 211 Mo. 483. (4) Where, by will, a particular estate is created, and on its termination the remainder is to go to certain survivors of a class, the survivors take a contingent remainder, which is not a descendible interest. Dickerson v. Dickerson, 211 Mo. 483; DeLassus v. Gatewood, 71 Mo. 371; Olney v. Hull, 21 Pick. 311; Hulburt v. Emerson, 16 Mass. 241; In re Winter’s Est.,114 Cal. 186; Pope v.Whitcombe, 3 Russ. Ch. R. 124; Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32. (5) A reversion is the residue of an estate left, by operation of law, in a grantor or his heirs, or in the heirs of a testator, where the grantor or testator has not disposed of his entire interest; and the right of possession of such a reversionary interest commences on the determining of the lesser estate granted or devised. Black’s Law Die., “Reversion.” A mere contingent possibility of title, however, is not a reversion, nor is it an estate in property. Such a contingency is a mere possibility and is sometimes termed a “reverter.” Washburn, Real Property, star pp. 63, 64; Black’s Law Die., “Reverter.”
   VALLIANT, J.

— Since this cause has been pending in this court the appellant has died, leaving Mary T. Garesche his widow, and Ferdinand T. Garesche, Marie Elise Garesche and Eugenie Terese Garesche, his three children, who are minors and his sole heirs at law, and after due service of scire facias on them, Mary T. Garesche has been appointed and qualified as guardian ad litem of the minor children and the cause has revived in their names as appellants.

It is a suit to quiet title under section 650, Revised Statutes 1899. The property in question is a lot in block 276 of the city of St. Louis particularly described in the petition. Plaintiff claims to be the absolute owner in fee of the lot. Defendant in his answer claimed an undivided vested interest in the lot under the will of his grandmother Maria Taylor, or an undivided vested interest in reversion as an heir at law to his grandmother. The decree of the court was that plaintiff was the absolute owner of the whole lot in fee and that defendant had no interest in it; 'from' that decree defendant appealed.

The title to an undivided one-third of the lot was vested absolutely in Maria Taylor at the time of her death. The other two-thirds interests have been acquired and are now held by the plaintiff. The plaintiff has also acquired and now holds all the interests of all the devisees under the will of Maria Taylor and of her heirs at law except the interest of the original defendant and appellant. William McRee G-aresche, if any he had. The decision of the cause will depend on the construction of the will of Maria Taylor, which, or so much of it as bears on the matter in controversy, is as follows:

“1st. I give and bequeath to my children, Rose, Anna, Lise, Yon and Groff, the sum of one dollar each.
“2d. All the rest and residue of my property of which I may be possessed at the time of my death, I give and bequeath to my daughters Kate and Julia, in equal parts between them. To have and to hold the same, as hereinafter .stated. In case of the marriage or the death of either of my said daughters Kate and Julia, the share of the one marrying or dying shall go to the other.
“In the event of the marriag’e of both of my said daughters Kate and Julia, said property shall be divided equally among all of my children.
“In event of the death of both of my said daughters Kate and Julia before marriage, said property shall be divided equally among my surviving children.”

All the children of testatrix named in the will, seven in number, were living at her death, and all are now living except the daughter Lise, who has since died leaving her only heir the original defendant William McRee Garesche. Neither of the daughters Julia and Kate has yet married.

I. Assuming for the present that it was only a life estate given to the daughters Kate and Julia, with remainder over, was it a vested or a contingent remainder? There are two events forecast in the will according to which the estate given to the two daughters is to cease or determine, to-wit: marriage, and death without marriage — if one should marry and the other not, the estate of the married one is to go to the other, if both should marry the estate of both is to determine and the property is “to be divided equally among all my children,” if both should die before marriage the “property shall be divided equally among my surviving children.”

There is not much difference between counsel on the effect of the condition that marriage should cause a forfeiture of the estate. In his answer .to the petition the defendant said that he was advised that that feature of the will was void because it was in total restraint of marriag’e, but appellant now takes the position that that feature of the will is not entirely in restraint of marriage, but only partly so, since by marriage the daughter does not lose all interest in the property but comes in under the clause “all of my children” among whom the property is to be equally divided in the event of the forfeiture of the particular ' estate by the marriage of both. But the interest which marriage would forfeit, if effect is given to that part of the will, is not compensated by a share with the other children which, as compared with the estate forfeited, is but a small part. The intention of the testatrix, as it very clearly appears, is that the only preference given these two daughters, over all the other children, is to be forfeited if they marry. That feature of the will is in restraint of marriage and is therefore void. The law on this subject received the consideration of this court in an early case and the doctrine there laid down has been the law of this State ever since. [Williams v. Cowden, 13 Mo. 212.] In that case the testator had devised land to his son and daughter with the provision, “if his said daughter should marry or die” the land should go exclusively to the son. The court held that that provision as to marriage was void. In commenting on the subject the court said: “Upon the general proposition, the preservation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality and filial obedience and reverence, are deemed to be objects too important to society to be weighed in the scale against individual or personal will.” The only exception to this rule found in our reports is in relation to a will by a husband making provision for his widow during her widowhood. [Walsh v. Mathews, 11 Mo. 134; Dumey v. Schoeffler, 24 Mo. 170.] In the latter case the court referred to Williams v. Cowden and showed how it was distinguished from that case and showed the reason for making an exception in favor of testamentary provisions for widows during widowhood. We hold that so much of this will as attempts to provide that on the marriage of either of these daughters her estate should go to the other and upon the marriage of both the whole property should be divided among all of the children of the testatrix is void. The will is therefore to be construed as if those words were not contained in it. That elimination leaves the will as providing only that in casé of the death of either of the two daughters her estate should go to the other, and in case of the death of both before marriage the property should be divided among “my surviving children.” The other children have no interest in the event that would cause the estate of one of the two daughters to go to the other; they are concerned only in the event that would cause the particular estate to cease and the property be divided among all the surviving children of the testatrix; that event is the death of both the daughters without either having been married. It is not in restraint of marriage, and therefore hot unlawful, for a testator to devise certain property to one of his children and provide that in ease the child phould die without having been married the property should go to another or othérs. Provisions of that kind are not uncommon and are legitimate. Under the terms of this will the other children of the testatrix can have no interest in this property until these two daughters die without either having married. These two daughters, possibly in deference to their mother’s wish, have not yet married, but what is more natural than that they should, or more probable than that they will? They wpuld forfeit no interest in the property if they should marry, and if they or either of them should marry it would be the end of all expectation of the other children to take under the will, because then the event on which the remainder depends, that is, the death of both without having been married, could never occur. Is the estate which is to take effect on the death of the two daughters, without having-been married, a remainder, and if so is it a vested or a contingent remainder?

Fearne divides contingent remainders into four classes, from which we take two: “I. Where the remainder depends entirely on a contingent determination of the preceding estate: as if A makes a feoffment to the use of B till C returns from Rome, and after such return of C, then to remain over in fee. . . . . IV. Where a remainder is limited to a person not ascertained, or not in being, at the time when such limitation is made: as if a lease be made to one for life, remainder to the right heirs of J. S. who is living; or remainder to the first son of B, who has no son then born; or if an estate be limited to two for life, remainder to the survivor of them in fee.” [2 Fearne (4 Am. Ed.), secs. 184-7.] That is to say, the remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained. Both those contingencies are present in this case; the event on which the remainder, if it be a remainder, is to take effect, that is, the death of both without having- been married, may or may never occur; death is certain, but that they will not marry is not certain; and second, which, if either or any of the other children of the testatrix will be living when the particular estate determines is also uncertain. The last proposition depends on whether the words “my surviving children” mean those living at the death of the testatrix or those living at the termination of the particular estate. The use of that term, “surviving children,” is very common in wills and the question whether it means children surviving at the death of the testator, or at some other period, has been much discussed and variously decided, but in every case the decision is aimed to meet the intention of the testator in the particular will, as such intention is- gathered from the whole will and the circumstances to which it applies. No unvarying rule can be laid down for the interpretation of those words or words of similar meaning, but, subject to exception, when the facts of the particular case require it, the general rule is that if an estate is given by will to the survivors of a class, to take effect on the death of the testator, the word “survivors” means those living at the death of the testator, but if a particular estate is given and the remainder is given to the survivors of a class, the word “survivors” means those surviving at the termination of the particular estate.

There is a learned discussion of this subject in each of the briefs with which we are favored and authorities are there collected and cases discussed. But we do not think it would profit to attempt to review the authorities referred to, since this court has in at least two cases gone over the whole field and laid down the rule as we have above stated it. [DeLassus v. Gatewood, 71 Mo. 371, and Dickerson v. Dickerson, 211 Mo. 483.] We hold that the words “my surviving children” in Maria Taylor’s will mean those of her children who might be living at the time when the estate given to the two daughters should determine, that is, on the death of both before marriage; it was therefore uncertain at the death of the testatrix which if either of her children would be living at that time and the remainder, if it is a remainder, is therefore contingent; Wm. McRee Garesehe’s mother having only a contingent interest in the estate thus created that interest was extinguished by her death, and therefore her heir has no interest under the will in question.

II. But suppose .both Kate and Julia should never marry and no one of the other children of testatrix should survive them; what then would become of the estate? If there was a remainder over and no remainderman to take it, it would go back to the estate and descend to the heirs of Maria Taylor. But would there under the terms of this will be any remainder over? A contingent remainder cannot take effect until the event or the fact on which it depends occurs or comes into existence. If an estate is devised to A for life, remainder to B when .C returns • from Rome, if C dies without having réturned from Rome there is no remainder. If an estate is devised to A for life, remainder to the first son bom to B, and B should die having no son born to him, there is no remainder. In those two supposed cases, on the falling in of the life estate what rémains would be a reversion, going back to the grantor or his heirs. But if the particular estate is not a mere life estate, if it is a determinable fee, liable to be cut down on the happening of the event on which the future estate depends, and that event does not occur, then the fee is not cut down and there is no reversion.

The will of Maria Taylor does not in terms give to the two daughters named a life estate; it gives them the property in fee subject to being cut down to a life estate in the event of their death without ever having married. The language of the will is: . “All the rest and residue of my property of which I may be possessed at the time of my death, I give and bequeath to my daughters Kate and Julia in equal parts between them. To have and to hold the same, as hereinafter stated.” That is to say, it is an absolute estate except as it might he cut down as thereinafter specified. Under the express terms of our statute, section 4646, Revised Statutes 1899, words of inheritance are not necessary in a will to create an estate in fee; when an estate is granted it is.limited or qualified only by words in the will limiting or qualifying it. The only words in this will limiting or qualifying the estate granted are: “In the event of the death of both of my said daughters Kate and Julia before marriage the said property shall be divided equally among my surviving children.” Therefore if they or either of them should marry the event on which their estate might be cut down can never occur and their estate will remain absolute.

If the language of this will had been: All the rest and residue of my property I will and bequeath to my daughters Kate and Julia and to their heirs and assigns forever in fee simple, with this conditional limitation however, that is to say, if neither of them should ever marry, the fee is to determine on the death of the survivor of them and the property is to be divided equally among my surviving children, its legal effect would not have been at all different from what it is in the language used.

The will shows the intention of the testatrix to dispose of her whole estate. On the death of the testatrix that fee vested in these two daughters, subject* to be determined at their death if they should not have married, but if that event should occur the will did not leave the fee to revert to the heirs of the testatrix but provided how it should go, that is, to “my surviving children,” who in that event would take as purchasers, not as heirs. But the will does not expressly provide for one possible event, that is, the death of all her other children before that of the two daughters named and afterwards their death without having been married, but there was no necessity for providing for that event because then one of the contingencies on which the fee was to determine would not have occurred, that is, there would be no one, to whom the executory devise could apply, to take the fee.

A remainder cannot be limited on a fee even though it be a determinable fee, therefore the devise to take effect on the determination of the fee in this case would not be a remainder, but an executory devise. [2 Washburn R. P. (3 Ed.), sec. 1744; Tiedeman R. P. (6 Ed.), sec. 392.] But an executory devise may be contingent not only on the event that is to determine the fee, but also on the being of the person to take when the event occurs. “Where the estate is to vest upon an uncertain event or in a person not definitely ascertained, the ex-ecutory devise is contingent, and partakes of the nature of a contingent remainder.” [Tiedeman R. P., sec. 386.]

Otoe of the distinctions between a remainder and an executory devise is that a remainder follows a particular estate, while an executory devise follows a fee. [2 Washburn R. P., sec. 1757.] After a particular estate something remains, after a fee nothing; if there be no remainder to go into effect on the determination of the particular estate, or no one to take the remainder, the fee reverts to the grantor or his heirs; if there be no executory devise to take effect on the happening of the condition on which the fee was to determine, or no one to take it, the fee is not cut down but remains, unless there is something else in the will to show that the intention of the testator was that the fee should determine absolutely on the happening of the condition without reference to the devise over.

The intent of the testatrix shown in this will was to dispose of her whole estate, leaving'none of it to be disposed of by the Statute of Descents, giving it all to her children; her two daughters named were her first care, but in a certain event the estate given to them was to determine in favor of her other children surviving them. The testatrix did not intend to cut down the fee on the death of the two daughters, independent of the provision to follow thereupon for her other children. The devise over to the surviving children was the only purpose of determining the fee and if that purpose could not he accomplished the fee would not he determined hut would remain as first-given and there would he no reversion, therefore if there were no children surviving to take the estate the fee remained in the two daughters. The words “surviving children” as used in this will have the same meaning when the estate over is considered to he an executory devise as they would have if it were a remainder, that is, those children of the testatrix surviving the two daughters to whom the estate is first given. The mother of the original defendant herein having died, her contingent interest in the devise over, whether it he called a remainder or an executory devise, terminated with her death and therefore did not descend to her son.

The trial court had the correct view of the law of this case. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    SCHOOL DISTRICT OF COLUMBIA v. A. H. JONES et al., Appellants.
    Division One,
    June 28, 1910.
    1. SCHOOL DISTRICT: Corporate Existence: Collateral Attack. The corporate existence of a school district and its right' to exercise corporate powers cannot be attacked collaterally- — for instance, by defendants in a suit brought by it to condemn land for a schoolhouse site.
    2. -: Condemnation. City, town and village school districts have express statutory authority to exercise the power of eminent domain to acquire a schoolhouse site.
    3. -: -: Selection of Site. The board of directors of a city school district, by a two-thirds vote, have power to select a schoolhouse site. B'y Section 9772, R. S. 1899, the site for a country district is selected by a majority of the qualified voters and taxpayers of the district; but sections 9860 and 9878 provide an exception to that plan for city schools, and together provide for the selection of the site by the directors.
    4. -: -: Agreement With Owners. A condemnation suit for a schoolhouse site is not to fail because the school board did not attempt to agree with the owners of the land as to the price to be paid for the same, if the district “for any other cause cannot secure a title to the same;” and where the petition details the title and it is manifest therefrom that no agreement as to price could have been made, and that the district cannot acquire title except through the court, such “cause” will be held to exist.
    5. -: -: Commutation of Life Estate. Where there is no evidence as to the age of a life tenant in the condemnation suit, the court has no basis upon which to compute the value of the life estate, and a judgment decreeing to her a fixed sum cannot stand. But being proper in all other respects the cause will be remanded for a trial of that issue alone.
    6. -: -: --: Assigned for Error in Motion. An assignment in the motion for a new trial that “the verdict and judgment is against the law and the evidence and the weight of the evidence” is sufficient to raise the question of the absolute want of evidence upon any question adjudicated by the court — for instance, that there was no evidence of the age of the life tenant, and therefore no basis for the commutation of her life estate.
    Appeal from Boone Circuit Court. — Hon. N. D. Thurmond, Judge.
    Reversed and remanded (with directions).

      David H. Harris and Webster Gordon for appellants.
    (1) If plaintiff lias the right to maintain these proceedings, such authority must come from a statute, plain and unmistakable in its terms, which must be strictly followed. Statutes authorizing condemnation proceedings are to be strictly construed, and every prerequisite to the exercise of the jurisdiction observed. .School District v. Dorton, Jgg Mo. 439; St. Louis v. Koch, 169 Mo. 587, 15 Cyc. 567; State v. Farrelly, 36 Mo. App. 282; Ligare v. Chicago, 139 111. 46; , Cooley’s Const. Lim. (7 Ed.), pp. 762, 763; Lewis on Eminent Domain (3 Ed.), sec. 371. The existence of the power to condemn may be controverted at any stage of the proceedings. It may be raised for the first time upon appeal or writ of error. Fore v. Hoke, 48 Mo. App. 254; Hopkins v. Railroad, 79 Mo. 98; 7 Ency. PL and Pr., p. 534. (2) No express authority is given school districts organized under article 2, chapter 154, R. S. 1890', to condemn lands for school -site purposes. The directors may purchase but not condemn. By section 9878, under which article the Columbia School District asserts corporate existence, the board of directors of such districts are given power “by an affirmative vote of no less than two-thirds of all the members of such board to locate, direct and authorize the purchase of sites for schoolhouses,” etc. It is clear that the power, if it exists, is not contained in this section but must be looked for elsewhere. Plaintiff contends that the provision in section 9860 to the effect that such school districts should “possess the same corporate power's and be governed the same as other school districts ’ ’ extended to it the power of condemnation afforded by section 9772. But it does not necessarily follow that the term “any school district,” occurring in said section 9772, embraces districts organized under article 2, for this court in construing the term “any district,” as the same occurs in section 9747 of said article 1, has held that said term is limited in its application to- country school districts. State ex rel. v. Fry, 186 Mo. 203; School District v. St. Joseph, 184 Mo. 154; School District v. Oellien, 209 Mo. 468; Buchanan v. School District, 25 Mo. App. 88; Fore v. Hoke, 48 Mo. App. 262; Detroit v. Railroad, 63 Mich. 712; Knowles v. Muscatine, 20 la. 300; In re Liberty Alley, 8 Pa. St. 381; Widening of 34th Street, 10 Phila. 197 5 Lewis on Eminent Domain (3 Ed.), sec. 371; Railroad v. Union Point, 119 Ga. 809. (3) If it be held that districts organized under article 2 of chapter 154, R. S. 1899, have the right of condemnation under the provisions of section 9772, then such power can be exercised only in the manner and upon the conditions expressed in said section. Where land is sought to be condemned for public use against the owner’s consent, a strict compliance with every essential prerequisite of the State conferring the right is required. School District v. Dorton, 125 Mo. 439; Linn v. Clemens, 44 Mo. 540; Ellis v. Railroad, 51 Mo. 200; U. S. v. Reed, 56 Mo. 572; Lewis on Eminent Domain (3 Ed.), sec. 387; Railroad v. Young, 96 Mo. 39; Drainage District v. Campbell, 154 Mo. 151; Williams v. Kirby, 169 Mo. 622; In re Grading Bledsoe Hill, 200 Mo. 630; State v. Parrellv, 36 Mo. App. 282; Taylor v. Todd, 48 Mo. App. 550; Spurgeon v. Bartlett, 56 Mo. App. 349; Rowsey v. Wood, 57 Mo. App. 650. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of property. Lewis on Eminent Domain (3 Ed.), sec. 388; Sugar Co. v. Elevator, 82 Mo. 121; Railroad v. Davis, 197 Mo. 669; Chandler v. Reading, 129 Mo. App. 63. If the statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensation to be paid, the effect of such effort and its failure must appear. Cooley’s Const. Lim. (7 Ed.), p. 761 Tarkio v. Clark, 186 Mo. 299; 7 Ency. PL and Pr., pp. 468 and 536; Railroad' v. Lewrig'ht, 113 Mo. 660.

      W. M. Williams and E. W. Hinton for respondent.
    (1) It appears from the records of the plaintiff district that it did organize as a town school district under the authority conferred by the Act of March 21, 1870. This made it a corporation of that class, and its corporate capacity is not open to collateral attack because of irregularities, if any, in the proceedings for organization. School District v. Hodgin, 180 Mo. 70; Black v. Early, 208 Mo. 281; Burnham v. Rogers, 167 Mo. 17. (2) The plaintiff district was given the right of condemnation by section 9860, R. S. 1899, conferring the same corporate powers possessed by other school districts, which have the express power of condemnation under section 9772. Bridge Co. v. Stone, 174 Mo. 1. Section 9860 provides in express terms that city, town and village districts shall “possess the same corporate powers and be governed the same as other school districts.” This is certainly express statutory authority for the exercise of the power of eminent domain conferred upon county school districts by section 9772. (3) ’ While the selection of a site is, of course, necessary before it can be condemned, yet, in the case of a city district the selection need not be made by the voters, because the power of selection is exclusively vested in the directors. R. S. 1899, sec. 9878; State ex rel. v. Allen, 183 Mo. 291. (4) The law did not require the idle ceremony of an attempt to agree on the price to be paid for this land, because the title could not be acquired by voluntary conveyance. R. S. 1899, sec. 9772; Bridge Co. v. Stone, 194 Mo. 187. (5) The objection that the life estate was commuted without evidence does not appear to have been raised in the motion for a new trial, and is therefore not before the court. Lynch v. Railroad, 208 Mo. 42; Lewis on Eminent Domain, p. 622.
   GRAVES, J.

— This is an action brought by the school district of Columbia, to condemn land for a schoolhouse site. The plaintiff since 1872 has been acting as a city school district, with a board of six directors. In April, 1909, said school district had voted and sold bonds in the sum of $17,500' for the purpose of buying a site and erecting a schoolhouse thereon. In May, 1909, the board of directors, by an affirmative vote of more than two-thirds of its members, selected the site involved in this suit. The petition, after alleging these facts, and describing the land sought to be condemned, thus speaks:

‘ ‘ That the defendants are the owners of said above described tract as hereinafter set forth, to-wit, that on or about the — day of February, 1891, one Patrick H. Jones died seized in fee of about fifty acres of land in Boone County, Missouri, of which said tract is a part, and by his last will and testament, which was duly admitted to probate by the probate court of Boone County, Missouri, devised the same to his wife, Eliza K. Jones, for and during her natural life, and directed that at her death said fifty acres should be sold by his executor, who is the defendant A. H. Jones, and that the proceeds thereof should be divided per capita between the defendant, Mrs. Cora N. Tillery, and the children of Mrs. Louisa Carson; and that it was further provided by'said will that if the said Mrs. Cora N. Tillery shoud die prior to the distribution, her share of the proceeds should descend to her bodily heirs, and if she should die without heirs of the body her surviving then to the children of Mrs. Elizabeth Murry, who are the defendants, Erl Murry, Thomas H. Murry and Lee Murry.
“The said Eliza K. Jones accepted the provisions of said will and on or about the — day of March, 1905, made, executed and delivered her certain deed of conveyance whereby she conveyed her aforesaid life estate in said tract of land unto the defendant, John A. Stewart.
“That Benia M. Ricketts, Kella B. Shields, Mary H. Dinkle, G-ussie E. Richards, and Stella R. Champion were and are the sole and only children of the above mentioned Mrs. Louisa Carson, and that they on or about the — day of February, 1905, made, executed and delivered their certain deed of conveyance, whereby they conveyed all of their right, title and interest in said tract of land and in the proceeds of sale thereof to the defendant, John A. Stewart.
“That the defendant, Mary Tillery, is the only child of the defendant, Mrs. Cora Tillery, and as such has a contingent interest in said tract of land and in the proceeds of sale thereof. And that the defendant, A. H. Jones, as the executor of the will of the said Patrick A. Jones, deceased, claims to own and hold the legal title to said tract of land for the purpose of sale.
“Petitioner further states that by reason of the diverse and uncertain interests of said defendánts as owners, this petitioner is unable to acquire the title to said tract of land and that it is unable to agree with said owners as to the price to be paid therefor.
“That said above described tract of land is suitable and necessary for a schoolhouse site for the petitioning district, and that the board of directors thereof have authorized and directed this proceeding for the condemnation thereof; wherefore petitioner prays that summons be issued herein as provided by law notifying said defendants of the time and place when this petition will be heard and said above described tract of land be condemned and the title thereto be vested in said school district for the purposes aforesaid, and to that end that three disinterested freeholders of Boone county, Missouri, be appointed to assess the damages for the appropriation thereof, and for such other orders as may be necessary in the premises.”

To this petition, defendants by appropriate pleadings raised the several questions to be disposed of in the case.

Commissioners were appointed who assessed the damages at $3750, which sum was paid into court. By its judgment, the court approved the report of the commissioners, condemned the property for a school site and vested title in the plaintiff. The judgment further details how defendants were interested in the property and how and through whom they held title and further determined the value of a life estate held hy one of the defendants. The interests of the several parties were fully detailed by this court in the recent case of Stewart v. Jones, 219 Mo. 614, the property involved in this case being a part of the property involved in that case.

Defendants raise numerous questions, thus (1) that the plaintiff was never legally organized as a school district, (2) that city school districts have no power to condemn property for a schoolhouse site, (3) that if such school districts do have such power, this plaintiff has not selected the site according to the terms of the statute, and therefore this action must fail, (4) that there was no attempt to acquire the title by purchase before the institution of this suit, and for that reason the action must fail, and (5) that there was no evidence upon which the court could commute the life estate.

In view of many facts which necessarily will follow in the course of the opinion, this sufficiently states the controversy.

I. The first question stated above does not appear to be seriously urged in the brief of the defendants. It is true that throughout the brief are found such expressions as “The School District of Columbia which professed to be organized under the provisions of Art. 2, of Chap. 154, R. S. 1899,” but counsel have not dignified the question with a separate point in the brief, nor have they discussed the matter or cited authorities thereon. It appears in the record, that since 1872 the plaintiff has been electing six directors, and doing business as a city school district, under the name of “School District of Columbia,” and that it has been known and recognized as a city school district. There is evidence offered to show the due incorporation of the plaintiff, but we shall not go into the record on this question. The corporate capacity of the plaintiff cannot thus he assailed in this collateral proceeding. A corporation of this character cannot be called upon to defend its corporate life every time it brings a lawsuit in its corporate capacity. Its corporate existence, and its rights to exercise corporate powers, can only be inquired into at the call of the State in proceedings of quo ,warranto. This has long been settled doctrine. [Burnham v. Rogers, 167 Mo. 17; School District v. Hodgin, 180 Mo. 70; Black v. Early, 208 Mo. 281.]

In the latter case, Lamm, J., took the pains to collate a great number of the cases, and we shall not reiterate now. The point made is not well taken and will be ruled against the defendants.

. II. The next contention is that school districts organized under article 2, of chapter 154, have no legal power to condemn property for a sehoolhouse site. Coupled with this, it is urged that'in a proceeding to condemn the right to condemn must clearly appear. To the latter contention we assent. That the right to exercise the power of eminent domain must clearly appear, we think well-settled law. The law pertaining to schools is collated under chapter 154, which chapter has some seven articles. Article one relates to the country school districts, which have three directors. Article two relates to city, town and village districts, which have six directors. Under article two, appear the following sections:

“Sec. 9878. In all such school districts as are mentioned in this article, that have a population exceeding five thousand and not exceeding one hundred thousand inhabitants, the board of directors of such school districts shall have full power, by an affirmative vote of not less than two-thirds of all the members of such board, to locate and direct and authorize the purchase of sites for schoolhouses, libraries and school offices, and by a like vote to direct and authorize the sale of any real estate or other property belonging to snch school districts; and if two-thirds of the members of snch board shall authorize and direct the sale of such real estate, the same shall be entered of record by the secretary, together with the terms of such sale, and the president of such board shall, in the name of such board, execute the necessary deed or deeds of conveyance to the purchaser or purchasers thereof; which said deeds of conveyance shall be by him acknowledged, as other deeds conveying real estate are by law required to be acknowledged.”
“9860. Any city, town or village, the plat of which has been previously filed in the recorder’s office of the county in which the same is situated, may, together with the territory which is or may be attached thereto, be organized into a single school district, and, when so organized, shall be a body corporate, and known as the school district of---, and in that name may sue and be sued, and possess the same corporate powers and be governed the same as other school districts, except as herein provided.”

Under article 1, we have section 9772, a part of which reads: “And whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds for school purposes, then the board of directors may proceed to condemn and pay for any amount of land adjacent to the schoolhouse site, as provided in this section.”

Prom these three several sections the plaintiff avers that its right to condemn property is clearly given by express words of the law. We are of the opinion that the power is so given. By section 9860, supra, city, town or village school districts shall “possess the same corporate powers except as herein provided.” The term “other school districts” clearly refers to the class of school districts mentioned in the preceding article, i. e., article I. This construction is not in conflict with State ex rel. v. Fry, 186 Mo. l. c. 203, but is rather borne out by that case.

Here we have an express grant of the same powers as are granted to the school districts having but three directors, with the modification made by the terms “except as herein provided.” Under section 9772, the other school districts mentioned are in words given the express power to condemn lands for a schoolhouse site. If therefore, the city, town or village districts have the same powers, they necessarily have the power to condemn. When these statutory provisions are taken together, as they must be, there is no doubt of the grant of power.

The power here granted is much more explicitly granted than in the case of So. Ill. Bridge Co. v. Stone, 174 Mo. 1. The reasoning of that case settles the controversy in this case. We therefore hold that city, town and village school districts have the express statutory authority to exercise the powers of eminent domain. Nor do we think the recent act of the Legislature, Laws of 1909, l. c. 838, amounts to a legislative construction contrary to this view. This point will be ruled against defendants.

III. Next it is contended that although it be conceded that city school districts have the power to condemn lands for a school site, yet in the case at bar, the site has never been selected as required by law, and until lawfully selected no proceeding to condemn if could be maintained. We grant it that there is no power to condemn a school site, until such has been duly selected pursuant to law. Condemnation statutes are strictly construed. They should be so construed and such has been the course of this court in reference thereto.

Defendants contend that the selection of the site must be by a vote of the voters of the districts. They say that if the city school district must trace its power to condemn - to section 9772, then such district must pursue the same course in selecting the site as is' provided in such section for the selection of sites hy country school districts. In this contention, the defendants overlook the exception contained in section 9860, supra. Under section 9860 the city school district is given “the same corporate powers, except as herein provided.” The term “herein provided” has reference to the provisions of article 2 of chapter 154. By section 9878, the method of selecting the site for a city school district is hy a two-thirds vote of the directors. By section 9772, the selection of a site for a country school district is hy vote of the district. The right of the school hoard to select is covered hy the exception mentioned in section 9860, supra. This contention of the defendants cannot he sustained.

IV. In the fourth place the defendants urge that the petition does not aver nor does the proof show that the school hoard attempted to agree with the owners of the property as to the purchase and price thereof and for that reason this case must fail. On this question, the material portion of section 9772 reads: “Whenever any district shall select one or more sites . . . and cannot agree with the owner thereof as to the price to he paid for the same, or for any other cause cannot secure a title thereto, the board of directors may proceed to condemn.”

It will he noted that there are two distinct conditions under which the district may proceed to condemn, (1) when such district “cannot agree with the owner thereof, as to the price to he paid for the same,” and (2) “or for any other cause cannot.secure a title thereto.” The.petition in this cause was drawn under the latter clause. It details the exact condition of the title, and these details show that no agreement could have been made. The pleadings in this case show that no agreement as to price could have been made, and that the plaintiff could not have acquired title except through the court. The pleadings in this case set np the same facts as were held in judgment in the recent case of Stewart v. Jones, 219 Mo. 614. The land involved is a part of the same land, and the interest of the same minor is involved. A reference to the Stewart case fully reveals the fact that no title could have .been acquired except through a condemnation proceeding. The facts of the case clearly bring it within the second condition mentioned in the statute. The judgment nisi cannot therefore be disturbed for this reason.

Y. Lastly it was urged that there was error in' commuting the life estate. Defendants urge that there was no evidence as to the age of the life tenant. This contention is well taken. There is no evidence in the record as to the age of Eliza K. Jones, the life tenant under the will of Patrick II. Jones. Mrs. Jones, now Mrs. Yivion, conveyed her life estate to defendant Stewart, and the commutation of the life estate was made to Mr. Stewart in the sum of $1687.95. How the court was able to reach this conclusion does not appear from the record. Respondent school district in the brief suggests that it was commuted by consent, but on this point we find nothing in the record. There is neither evidence nor admission as to the age of the life tenant. That part of the judgment and decree is therefore without evidence to support it. Defendant Stewart seems to have been satisfied, as he has not appealed, but his satisfaction does not meet the contention of the other defendants who have appealed. '

Respondent further urges that this matter is not covered by the motion for new trial, but in this contention there is error. The motion says: “Because the said verdict and judgment is against the law and the evidence and the iveight of the evidence ” This we think sufficient to raise the question of absolute want of evidence upon any question adjudicated by the court.

For this error the judgment will have to be reversed and remanded, but we think it should be with directions. The real question between plaintiff and defendants has been properly adjudicated, and there is no reason for a retrial of that issue. The present judgment is correct with this single exception. The plaintiff had the right to condemn and the title was properly decreed in it. We will, under these circumstances, reverse the judgment and remand- the cause for the sole purpose of opening up the case upon this single point. When such proof has been heard, and the trial court has upon that proof reached a conclusion as to the value of the life estate, the present judgment and decree shall be modified, if necessary, to meet the conelu-' sion of the court upon that question, and when so modified, shall be re-entered as the judgment of the court. With these directions the judgment is reversed and the cause, remanded.

All concur.