source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    FLORENCE B. ECKLE, WALTER B. ECKLE, FLORENCE I. BANKS and LIDA M. BUFORD v. LEGRAND RYLAND and COLEMAN G. BUFORD; COLEMAN G. BUFORD, Appellant.
    Division One,
    April 2, 1914.
    1. PRACTICE: Agreed Case: Refusing to Give or Refuse Instructions, The Supreme Court, on appeal, can affirm or reverse a judgment in a case tried by the judge alone on agreed facts, as well without as with instructions. If the judgment was right, then for appellate purposes, the theory of the trial judge was right, or, if not right, the reasons for his decision are immaterial. Hence, it is not material error that he neither gave nor refused instructions asked by appellant. A refusal of instructions interpreting a deed or will, or a refusal to pass upon them at all, cannot materially affect the merits in an agreed case.
    2. CONTINGENT REMAINDER: Validity of Devise Thereof. The deed “granted, bargained and sold” to a trustee certain lands and empowered him to collect the rents and out of the same to pay the taxes and expenses of improvements and repairs and use the balance for the support of grantor’s son William “for and during the term of his natural life.” At the death of said son if the grantor was then living the trustee was to turn over the net income of the land to her. The deed then recited: “On my death, should I survive the said William M. Buford, and, on his death, should he survive me, the said trust herein provided for shall terminate, and the title to the said real estate and property shall go and vest in my two other children, Legrand G. Buford and Florence I. Banks, one-third each, or to their heirs should they or either of them be dead, and the remaining one-third shall vest in my two grandchildren, Legrand Ryland and Buford Ryland, as joint tenants, or to their survivor, for life, with the remainder to my two children, Legrand G. Buford and Florence I. Banks, and their heirs, share and share alike, in fee simple forever.” Held, that Le-grand G. Buford did not take a vested remainder in the land, nor did he take a vested interest defeasible on condition subsequent, namely, his death prior to the termination of the trust, but he took a contingent remainder, the contingency being that he survived his brother William, alienable subject to the chance of nothing- passing on the contingency not happening, and as it did happen, that is, as William survived him, his will devising the property to his wife passed nothing to her, but the estate descended as if he had left no will, that is, the title vested in his children.
    3. DEED: Rules of Construction. In the construction of a deed the intention of the grantor is the main thing, and all other rules are mere aids; and in discovering and uncovering the intention of a grantor or testator, if that intention he at all obscure, the guiding rules are: (1) the whole instrument must be considered; (2) the objects to be subserved and the circumstances surrounding the grantor or testator are to be kept in view; (3) his words are to be taken and understood in the sense indicated by the instrument; (4) effect must be given to all its words and clauses if that be possible in reason, so that each is made operative and effective to some purpose; (5) the best mode of interpretation is to reconcile one clause with another, where that can be done without straining the' words by hairspun theories or overnice refinements; and (6) in wills, more than in deeds, and yet in the latter, the language varies so materially and so much that precedents are rarely controlling in a concrete case except as they may furnish general aiding rules. For those reasons the best interpretation of a deed or will is the instrument itself.
    4. CONTINGENT REMAINDER: “And Heirs”: “Or Heirs.” The deed vested the title in the trustee during the life of the grantor and her son, and said the trust shall then “terminate” and the title “shall vest in my two other children, Legrand G. Buford and Florence I. Banks, one-third each, or to their heirs should they or either of them be dead, and the remaining one-third shall vest in my two grandchildren, Legrand Ryland and Buford Ryland, as joint tenants and to their survivor, for life, with the remainder to my two other children, Legrand G. Buford and Florence I. Banks, md their heirs and assigns.” Held, that some significance must be given to the change from “or heirs” used in one place to “and heirs” used in the other. The word “heirs” may be a word of limitation and ordinarily one coming within that designation takes by descent or inheritance; but its context may show that it is used as a word of purchase and means children or grandchildren. The clause vesting the title in the two children named “or to their heirs should they or either of them be dead,” -when read with the other clause, means that neither child named was vested with the title unless he or she was living at the termination of the, equitable life estate. The deed indicated that the title was to vest in one of two ways — in the two children named if living, in their children if dead — and, one of them having died before the equitable life estate terminated, the remainder was contingent, and the title never vested in him.
    5. -■: Old Learning: Trend of Decisions. The tendency of modern decisions on questions of contingent and vested remainders has been to break away from the technical refinements of the old common law learning, and give effect to the intent of a deed as gathered from its face and the everyday, good sense of its language.
    6. -: No Vesting of Title During Life Estate. It is of no consequence where the estate in remainder was during the equitable life estate. Title does not have to vest at the execution of the deed. A deed may create a freehold estate in

    Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.
    Reversed and remanded (with directions).

      Aull & Aull for appellant.
    (1) In tlie interpretation of contracts, whether it be deed or other written instrument, the proper construction of the instrument must be sought from the entire deed, and not merely from any particular part of it. Dickerson v. Dickerson, 211 Mo. 496; Buxton v. Kroeger, 219 Mo. 245; Williamson v. Brown, 195 Mo. 336 ; Gribson v. Bogy, 28 Mo. 478; Orr v. Rode, 101 Mo. 396; McCullock v. Holmes, 111 Mo. 447; Meyer v. Christopher, 176 Mo. 594; Utter v. Sidman, 170 Mo. 284; Turner v. Timberlake, 53 Mo. 371; Allison v. Chaney, 63 Mo. 279; Walton v. Drumtra, 152 Mo. 489; Armor v. Frey, 226 Mo. 646. Rules of interpretation, formerly adhered to with much strictness, have been changed, modified and abandoned, when, in their modern application, they have been found hostile to the end the courts struggle to attain, Which is, to give effect to the grantor’s intention, and, to effect that intention being the paramount rule they read the whole instrument, and, if possible, give effect and meaning to all its language. ' Bean v. Kenmuir, 86 Mo. 671; Russell v. Eubanks, 84 Mo. 86; Feller v. Lee, 225 Mo. 332; Utter v. Sidman, 170 Mo. 284. (2) The remainder, under the provisions of the deed, is a contingent remainder, or, under some of the decisions, a vested remainder defeasible on condition subsequent. Death of Legrand G. Buford before the termination of the trust, or, happening of the contingency, defeated the same, if construed to be so vested. Dickerson v. Dickerson, 211 Mo. 497; Emerson v. Whittlesey, 55 Mo. 258; Maguire v. Moore, 108 Mo. 274; DeLassus v. Gate-wood, 71 Mo. 381; Jones v. Waters, 17 Mo. 589; Aubuchon v. Bender, 44 Mo. 560; Rodney v. Landau, 104 Mo. 251; Emmerson v. Hughes, 110 Mo. 630; 2 Wash-burn, Real Prop. (6 Ed.), secs. 1555-1580; Manice v. Manice, 43 N. Y. 380; Edwards v. Hammond, 3 Lev. 132; Doe v. Moore, 14 East, 601; Blanchard v. Blanchard, 1 Allen (Mass.), 223. (3) As the title was not to vest in Florence L. Banks and Legrand G. Buford until the death of William M. Buford and grantor, Eusebia N. Buford, and then only in such of them as were alive at that time, the remainder was necessarily contingent. Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 231; Tiedeman on Real Prop. (2 Ed.), secs. 396-397-403; Emison v. Whittlesey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 381; Rodney v. Landau, 104 Mo. 257; Emerson v. Hughes, 110 Mo. 630; Maguire v. Moore, 108 Mo. 267; Owen v. Eaton, 56 Mo. App. 563; Taylor v. Adams, 93 Mo. App. 277; Aubuchon v. Bender, 44 Mo. 560; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludington, 104 Mass. 193; Denny v. Kettel, 135 Mass. 138; Colby v. Duncan, 139 Mass. 398; Hunt v. Hall, 37 Me. 363; Buck v. Paine, 75 Me. 582; Tillman v. Davis, 95 N. Y. 24; Whitesides v. Cooper, 115 N. C. 570; White's Tr. v. White, 86 Ky. 602.; Starr v. Willoughby, 218 Ul. 485; Schaeffer v. Schaeffer, 54 W. Ya. 681; 1 Preston on Estate, pp. 36-74; 2 Washburn on Real Prop. (6 Ed.), secs. 1526-1575; Sullivan v. Garesche 229 Mo. 506; Rinquist v. Young, 112 Mo. 25; Wombles v. Young, 69 Mo. 117. Where the remainder is limited to a person not ascertained by the terms of the instrument, the remainder is contingent. Buxton v. Kroeger, 219 Mo. 224. A contingent remainder is one whose vesting, or taking effect in interest, is, by the terms of its creation, made to depend upon some contingency which may never happen at all, or may not happen within a requisite time, by reason whereof its capacity of vesting, or taking effect in interest, may be forever defeated. 2 Wash-bum on Real Property (6 Ed.), sec. 1555; Dickerson v. Dickerson, 211 Mo. 488-9; 2 Black. Comm. 169; 2 Minor, Institutes, p. 337; Fearne’s Remainders, 116-17. (4) Under many authorities, because the courts favor vested remainders, such a remainder is determined to be vested, subject to be defeated or divested on condition subsequent — the death of Legrand Gr. Buford before the termination of the tmst. If so determined to be vested, it was defeated, or divested, by the death of Legrand Gr. Buford prior to the termination of the trust. Manice v. Manice, 43 N. Y. 380 ; 2 Washburn, Real Prop. (6th Ed.), p. 517, sec. 1544; Buck v. Paine, 75 Me. 583; 4 Kent, Com. (13 Ed.), secs. 203, 204; Blanchard v. Blanchard, 1 Allen (Mass.), 223; Price v. Hall, L. R. 5 Eq.'399; Doe v. Cunningham, 6 Wall. 458; PTarvey v. McLaughlin, 1 Price, 264; Roome v. Phillips, 24 N. Y. 463; Paterson v. Ellis, 11 Wend. 259; Everett v. Everett, 29 N. Y. 76; 2 Redfield, Wills, 592-641; 1 Jarman, Wills, 767; Gilman v. Reddington, 24 N. Y. 16; Inches v. Hill, 106 Mass. 575; Roper on Legacies, 571; Linton v. Laycock, 33 Ohio St. 128; Doe v. Moore, 14 Eas. 604; 1 Tiffany, Real Prop., sec. 120; Kane v. Gott, 24 Wend. 641; Collins v. Collins, 40 Ohio St. 353; Tillman v. Davis, 95 N. Y. 17; Harbert v. Cauthorn, 100 Ya. 651; Rood v. Hovey, 50 Mich. 395; Elwood v. Plummer, 78 N. C. 392; Clanton v. Estes, 77 Ga. 352; Bigley v. Watson, 98 Tenn. 353. (5) There may be two concurrent fees, by way of remainder ; one as a substitute for the other and to take effect in case the prior one fails to vest in interest. ■ Alternative remainders, remainders on a contingency with a- double aspect, or remainders on a double contingency. 1 Feame, Remainders, pp. 373-4; City of Peoria, 101 111. 616; Dunwoodie v. Reed, 3 Serg. & R. 452; Loddington v. Kime, 1 Ld. Raym. 203; Goodnight v. Dunham, Dougl. 265; Doe v. Burnsall, 6 T. R. 30; Hennessey v. Patterson, 85 N. Y. 91; Doe v. Fonnereau, 2 Dough 505; Cooper v. Hepburn, 15 Gratt. (Ya.) 558-9; Walker v. Lewis, 90 Va. 582; Allison v. Allison, 101 Ya. 556, 63 L. R. A. 920; 2 Minor on Real Prop., sec. 737; 16 Cyc. 650; 2 Washburn, Real Prop. (6 Ed.), sec. 1575. (6) There was clearly no intention to vest any title to the real estate in" the children at the date of the execution of the deed. The well settled purpose, of which the grantor was extremely watchful, was to keep the property in the family for her children, or, if they be not living at the termination of the trust, in the grandchildren, and heirs, and to withhold title and control until the termination of the trust. Buxton v. Kroeger, 219 Mo. 245; Bean v. Kenmung 86 Mo. 670; Armor v. Prey, 226 Mo. 646. (7) The heirs, Coleman G. Buford and Florence B. Eckle, take as purchasers, under the deed of Eusebia N. Buford, who gave to them the estate in remainder, by way of substitution for, and not by descent through, the deceased father, L. G. Buford. Dickerson v. Dickerson, 211 Mo. 496; Woerner, Am. Law of Adm., p. 902; Williams on Executors (Perkins Ed.), p. 1193; Clark v. Cordis, 86 Mass. 480; Cushman v. Horton, 59 N. Y. 149; Tillman v. Davis, 95 N. Y. 24. (8) The words “heirs” will be construed as child, or children, when necessary to carry out the clear intention of the grantor, whether the instrument be deed or will. Roberts v. Crume, 173 Mo. 579; Haverstick’s Appeal, 103 Pa. St. 394; "Waddell v. Waddell, 99 Mo. 345; 4 Kent, Com. (13 Ed.), 419; 3 Washburn, Real Prop. (6 Ed.), sec. 1565; Warn v. Brown, 102 Pa. St. 347. A devisee is not an heir, and under the provisions of the deed the widow and husband of Florence B. Eclde were not heirs but devisees.

      Chiles & Chiles for respondent Lida M. Buford.
    (1) We agree with appellant that in the construction of this deed of trust every part must be considered and the meaning must be ascertained from the entire deed from its four corners, as this court has often said. In analyzing the deed it is to be noted that all parties taking a beneficial interest in the property are doubly identified, that is, by name as well as description ; the life tenants, William M. Buford, son, and Le-grand Ryland and Buford Ryland, grandchildren, and the remaindermen, “my other children,” Legrand Gr. Buford and Florence I. Banks. In those parts where the names are not repeated, apt reference is made by the use of the terms “said children and grandchildren” and “said other parties.” Riñes v. Mansfield, 96 Mo. 399.- (a) The consideration for making the deed, outside of the ample provision for the support of the insane son, William M. Buford, is stated to be “the love I bear for my children and grandchildren hereinafter named.” Those so named are her children, William M. Buford, Legrand G-. Buford and Florence I. Banks, and her grandchildren, Legrand Ryland and Buford Ryland. The other four grandchildren, including appellant, were not named. No other grandchild was contemplated by Mrs. Buford and even the two grandchildren named were cut off with a mere life estate in the share represented by their mother; much less were unnamed grandchildren provided for. (b) Eusebia N. Buford in this deed did “grant, bargain and sell” to tbe trustee, E. M. Edwards, the land, to take and receive its rents and profits and pay out same as stated, during the life of William M. Buford and Eusebia N. Buford, should she survive him, without any power of alienation, and on his death the trust shall terminate “and the title to said real estate and property shall go to and vest in my two other children, Legrand Gr. Buford and Florence I. Banks, one third each, or to their heirs should they or either of them be dead,” (still without providing for her other grandchildren as appellant claims she did) and “the remaining one third shall vest in my two grandchildren, Le-grand Eyland and Buford Byland as joint tenants and to their survivor for life, with the remainder to my two other children, Legrand Gr. Buford and Florence I. Banks and their heirs, share and share alike in fee simple forever.” This creates a vested remainder in Legrand Gr. Buford and Florence I. Banks beyond controversy. It will be noted in this clause in disposing of the remainder, that the words “children” and *£ grandchildren ’ ’ are used, so that there is no authority to substitute the word “children” in lieu of “heirs” where that word is used, the maker of the deed having thus drawn a distinction between the terms. The word “heirs” as used is indicative of descent and, with the rest of the deed, thereby clearly negatives the idea of purchasers and is not descriptive of purchasers or used to introduce a new line of beneficiaries, (c) The habendum clause is first to the trustee for the purposes of the trust during the lives of Eusebia N. Buford and William M. Buford and then to “my said children and grandchildren as heretofore provided for,” and to “those who take the shares and remainder” — the remainderman — that is Legrand Gr. Buford and Florence I. Banks — “in fee and their heirs and assigns forever.” This indicates beyond dispute a vested remainder, (d) The covenants are with the trustee and “said other parties” — that is Legrand Gr. Buford and Florence I. Banks — “and their heirs and assigns to forever warrant and defend,” etc., also denoting a vested remainder in the two children named. Of course this would extend to the Ryland grandchildren, who are named, as. to their life estate in one third. (2) This court has asserted that in such cases as this precedents are of little value except as they may be like the case in hand and except as they may formulate rules to be applied. The language to be construed which is nearest to that in this case is used in a will in Chew v. Keller, 100 Mo. 362. There is nothing in the deed of trust in the case at bar to indicate that the grantor was providing for any of her six grandchildren except the Rylands, and they only took a life estate in what would have been their mother’s share, Legrand' Gr. Buford and Florence I.. Banks getting the “remainder in fee simple forever.” Riñes v. Mansfield, 96 Mo. 399. Another case, involving language in the construction of a deed, similar to that used in this case, is the case of Waddell v. Waddell, 99 Mo. 338. The rule of construction of the word “heirs” used in these cases is cited with approval in the case of Roberts v. Crume, 173 Mo. 579. For the characteristics of vested remainders and contingent remainders, see Tindall v. Tindall, 167 Mo. 226. (3) “The word ‘heirs’ will be considered as a word of limitation and not of purchase unless the will shows clearly that it is used to introduce a new class of beneficiaries.” Chew v. Keller, 100 Mo. 369; Roberts v. Cramer, 173 Mo. 579. (4) “The law favors vested remainders and where there is a reasonable doubt as to whether the estate created is a vested or a contingent remainder, the courts will resolve that doubt in favor of the former and against the latter.” Collier’s Will, 40 Mo. 321Chew v. Keller, 100 Mo. 361; Byrne v. France, 131 Mo. 646; Dickerson v. Dickerson, 211 Mo. 488; Tindall v. Tindall, 167 Mo. 225.
   LAMM, J.

— Partition. In the- Lafayette Circuit Court. On May 27, 1891, Eusebia N. Buford, widow and owner, executed to one Edwards, as trustee, a deed to lands in said county and duly spread it of record. Edwards took possession and be and a successor in trust executed tbe trust. As tbe main question binges on whether ber son, Legrand G., took a vested remainder under that deed that be could devise in case be died prior to tbe death of tbe two life beneficiaries, William M. and Eusebia N.. we reproduce tbe deed to* speak for itself, thus:

Know All Men by These Presents: That for the purpose of providing for the maintenance and support of my son, William M. Buford, being of impaired mind, for life, and for the love I bear for. my children and grandchildren hereinafter named, and other good considerations thereto moving, and also for and in consideration of the sum of one dollar to me in hand paid, the receipt of which I do hereby acknowledge, I, Eusebia N. Buford, widow, of the county of Lafayette and State of Missouri, have this day granted, bargained and sold and do hereby grant, bargain and sell unto Elisha M. Edwards of said county of Lafayette and State of Missouri as trustee for the purposes hereinafter mentioned, the following described real estate and property, formerly belonging to my said son, William M. Buford, being situate and lying in said county of Lafayette in the State of Missouri, to-wit: the west half of the northwest quarter of section numbered one and east half of the northeast quarter of section numbered two both in township numbered fifty and range numbered twenty-five; also the northwest quarter of the southwest quarter of section numbered twenty-four in township numbered fifty-one and range numbered twenty-five.
The said Elisha M. Edwards, as trustee, to take and receive the rents, issues and profits of said lands and premises, and, out of the same, to pay first, the taxes that may be assessed thereon, the necessary and proper cost and expense of keeping the said premises and • the buildings, fences and other improvements thereon in good and proper repair, the costs of keeping the buildings on said property properly insured against loss by fire, storm and other casualty, and the necessary costs and expenses of the trusteeship herein provided for, and the balance shall be, by the said trustee, kept, appropriated and used, for the proper and comfortable support, maintenance, care, clothing and keeping of my beloved son, 256 Mo. -28 William M. Buford, the payment of his medical bills and his custody, if necessary, in an asylum for the insane, and for all other proper and necessary expenditure to keep my said son in comfort, for and during the term of his natural life. At the death of my soni if I, the said Eusebia N. Buford, be then living, then the said trustee shall use and appropriate the net rents, issues and profits of said land, for my use, and shall pay over the same to me, for my individual use, on my death, should I survive the said William M. Buford, .and, on his death, should he survive me, the said trust herein provided for shall terminate, and the title to the said real estate and property shall go to, and vest in my two other children, I-iegiand G. Buford and Florence I. Banks, one-third each, or to their heirs, should they or either of them, be dead, and the remaining one-third shall vest in my two grandchildren, Le-grand Ryland and Buford Ryland, as joint tenants, and to their survivor, for life, with the remainder, to my two children, Legrand G. Buford and Florence I. Banks, and their heirs, share and share alike, in fee simple forever. Any funds on hand, with said trustee, on the termination of tills trust, is to be paid over, and disposed of, in the same way as is provided for the disposition of the land, except that the share of the said Ryland grandchildren therein shall be paid to them absolutely;
To have and to hold the said real estate hereby conveyed, and all the rights, privileges and appurt¿nances thereto belonging, unto the said Elisha M. Edwards, as trustee, as aforesaid, for the purposes of this trust for and during the natural life of me, the said Eusebia N. Buford, and the natural life of the said William M. Buford, as hereinbefore provided, and to my said children and grandchildren, as hereinbefore provided, and to those who take the shares and remainder in fee, and their heirs and assigns forever. The said Eusebia N. Buford, hereby covenanting to and with said trustee, and said other parties, and their heirs and assigns, for myself, my heirs, executors and administrators, to forever warrant and defend the title thereto against the lawful claims and demands of all persons whomsoever, except as against the taxes thereon for the year 1891, which said trustee is to pay out of said rents and profits.
In testimony of all which I hereto subscribe my name and affix my seal this 27th'day of May A. D. 1891.

While William M. Buford was yet alive, Legrand U. Buford died, to-wit, in October, 1909, leaving two children by his first wife, dead, and a widow, the plaintiff Lida M. Buford, and a will. The two' children are the plaintiff Florence D. Eclde and the defendant Coleman G. Bnford. As the two Ecldes, husband and wife, and the widow Lida M. claim under the due prohate of the will of Legrand G. Buford, to the exclusion of the son, Coleman G., we let the will also speak for itself, thus:

I, L. G. Buford, of Eldorado Springs, in the county of Cedar and State of Missouri, being of sound mind and memory, and considering the uncertainty of this frail and stansitory life do therefore make, ordain, publish and declare this to be my last will and testament:
First. I • order and direct that my executrix hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.
Second. After the payment of such funeral expenses and debts, I give, devise and bequeath to my beloved wife, Lida Buford, all my personal property (not herein excepted) and also one-half of my one-third interest in two hundred acres of land situate in Lafayette County, Missouri.
3rd. I will and bequeath to my daughter, Florence, and her husband, W. R. Eckle, the other cine-half of my interest in two hundred acres of land situate in Lafayette County, Missouri.
4th. To Coleman Eckle, my grandson, I will my watch.
5th. To my son, Coleman G. Buford, I will one dollar.
6th. In case of the death of my wife, Lida Buford, before the sale of said real estate as above stipulated then I will that my daughter, Florence, and her husband, W. R. Eckle, shall have the whole of said interest in said real estate.
Lastly I make, constitute and appoint Lida Buford, my wife, without bond to be executrix of this my -last will and testament, hereby revoking all former wills by me made.
In witness whereof I have hereunto subscribed my name and affixed my seal the 21st day of October in the year of Our Lord one thousand nine hundred and nine.

On March 16, 1910, plaintiffs brought suit to partition the land described in the foregoing deed of trust, making Legrand Ryland sole defendant. Afterwards said son of Legrand G. Buford, to-wit, Coleman G., came in as a party defendant. He filed answer claiming to be a cotenant with plaintiffs, and his codefendant, Ryland. Plaintiffs joined issue thereon. The answer of defendant Ryland is unimportant as he rests satisfied. As the controversy primarily ranges aronnd the construction of the foregoing deed, and secondarily around the construction of the foregoing will, and since the claims of the respective parties will presently appear, the pleadings setting them forth are unimportant.

Presently such proceedings were had that an interlocutory judgment in partition was entered adjudging that Coleman G. took no interest under said deed of his grandmother or under the will of his father. He excepted to that judgment and preserved the evidence upon which it was rendered and his exceptions in a term bill. Afterwards a partition sale was made, followed by an order of distribution in accordance with the interlocutory judgment excluding him. Thereupon, at the heels of the final judgment approving that order of sale and distribution, he without success filed a motion for a new trial and again excepted and in apt time filed his principal bill and in due form appeals.

The facts are stipulated and have been already outlined. They consist, first, of said deed and will; second, of facts which for perspicuity’s sake we set forth over again a little more in detail and compactly, thus: Eusebia N. Buford, the ancestor and common source of title, died in 1895. Pour children were born to her, to-wit, Legrand Gr. Buford, Florence I. Banks (a married daughter, a plaintiff), William M. Buford (who died single) and a daughter who intermarried with Mr. Ryland and died leaving two children by him, Legrand (a defendant) and Buford (who died prior to suit). The son of Eusebia, William M., was non compos and died after his brother Legrand Gr., who, twice married, died in 1909 testate in Cedar county, leaving two children by his first wife, a daughter, Florence B., aged thirty-nine years, intermarried with one Eckle (both plaintiffs), a son, Coleman G., aged forty-one years (who was, as said, made a defendant on his ■own motion), the above will duly probated, and a widow (the plaintiff Lida M.). William M. Bnford died ■on the third day of March, 1910. Eusebia’s grandchild, Buford Ryland, died on a date not given, but, as said, before suit.

If Legrand Gr. Buford, dying as he did before the beneficiary last surviving, William M., did not take a vested remainder under his mother’s deed, or (put differently) did not take a vested interest defeasible on condition subsequent, to-wit, his death prior to the termination of the trust, then his will was not effective as a devise of the land, and, hence, his widow took no interest therein under that will and appellant takes as a purchaser under his grandmother’s deed and not by inheritance from his father; hence the judgment is wrong. Appellant stands for that hypothesis and construes the deed accordingly.

Furthermore, assuming (for the purposes of the argument alone) that Legrand Gr. Buford took a vested estate under his mother’s deed and not a mere contingent one, as appellant contends on the hypothesis just put, then, for that turn, the position of appellant is that Legrand Gr. did not include in his will the particular one-third interest made subject to the Ryland life estate and, hence, as to that third, it is a case of intestacy and the judgment is wrong in that aspect.

The interest of Florence I. Banks is not in dispute. The life interest of Legrand Ryland in one-third was commuted into cash and is not in dispute. If appellant be right in his principal contention then his sis-' ter, Mrs. Eckles, takes by purchase under the grandmother’s deed the same as he. Accordingly, will or no will, appellant says he has no substantial controversy with her. This narrows the controversy to one between him and his stepmother, Lida M. Buford, and she alone files a brief as respondent, stating therein the questions to be:

“First. Did Legrand Gr. Bnford take a vested interest in the two hundred acres of land which he could dispose of by will?
“Second. Did Lida M. Buford take one-half of that interest under the will of her husband, Legrand Gl. Buford?”

We may be in error, but we infer all parties took down their shares except that a receiver was appointed below and took charge of the stepmother’s share in the proceeds of the sale pending appeal, its disposition to abide the event.

Any other record facts pertinent to propositions ruled, will appear in due course.

I. Of error in refusing to consider or give instructions.

Appellant asked instructions declarative of the law on his construction of the deed and will as put in the two foregoing hypotheses. The court neither gave nor refused them, but ignored them. Appellant complains of that from two angles, to-wit: First, in refusing to pass on them at all; second, in refusing to give them.

There was no conflict in the evidence. In fact the case, one at law, is an agreed one. The trial was to the court. Under such circumstances the agreed facts are equivalent to a special verdict and the only function of instructions would be to indicate whether the trial court had the right theory of the law on the agreed facts. Now, if his judgment was right, then, for appellate purposes, his theory of the law was either bound to be right, or, if not right, then the ratio decidendi matters not a whit; for, as we have here the agreed facts as well as the judgment, we can as well affirm or reverse that judgment without instructions as with the'm. In such case we can “administer the true law.” [Cox v. Sloan, 158 Mo. l. c. 429.] To be reversible error, the error must materially affect the merits, and it is plain enough that a refusal of instruc.tions interpreting the deed and will, or the refusal to-pas s upon them one way or the other, could not materially affect the merits on an agreed case. The situation is not new. It has been here and dealt with before and the propositions just laid down are sustained by Baumhoff v. Railroad, 171 Mo. l. c. 125; State ex rel. v. Cummings, 151 Mo. l. c. 57; and Kronenberger v. Hoffner, 44 Mo. l. c. 191 et seq. “Where the facts are undisputed,” says Bliss, J., in that case, “the decision of the court, if wrong, is error of law, whatever may be the formal declarations of law, or whether there be any.” And from the same judge we have in Aubuchon v. Bender, 44 Mo. l. c. 570, this: “No agreed statement of facts can fix a conclusion of law.”

If the case had not been an agreed case, or if the evidence had been conflicting, a different rule might obtain. [Suddarth v. Robertson, 118 Mo. l. c. 293.] Cases may be found like Hisey v. Goodwin, 90 Mo. 366, holding it error to refuse to consider instructions in a law case tried to the court, but that holding runs with the fact that the evidence was pro and con in that case. Other cases may be found where a refusal to consider instructions was taken as tantamount to a refusal of them. [Karriger v. Greb, 42 Mo. 44.] So that, viewing the instant ease from the angle of refusing to give or from that of refusing to consider (or treating it as a case with no instructions asked) it amounts to the same thing, to-wit, the merits are not affected by such incident, where, as here, appellant files a motion for a new trial raising the point that the judgment is not supported by the evidence, and as here, saves his exception to overruling it.

. The point, being without substance, is disallowed.

II. Bid Legrand G. Buford take a vested remainder under Ms mother’s deed to Edwards?

He died prior to his brother, William. Edwards-was seized to William’s use during his life. If Le-grand Gr. Buford took a vested remainder on the delivery of the deed to Edwards, trustee, then the devise in his will was effective, though he died prior to William. If, on the other hand, Legrand Gr. Buford took only a contingent remainder (the contingency being that he survive his brother, William) then, while such contingent remainder or interest (that is, the mere “chance of having”) was alienable subject to the chance of nothing passing on the contingency’s not happening (Godman v. Simmons, 113 Mo. l. c. 130 et seq.; Buxton v. Kroeger, 219 Mo. l. c. 251 et seq.); yet such contingent remainder would not be devised for the very good reason that a will is ambulatory, revocable, it only takes effect at the death of testator and in this case the same event that makes the will effective, to-wit, death, makes it impossible for the contingency on which it was to take to happen.

The main question in the case, to-wit, was there a vested remainder in Legrand G. Buford created by his mother’s deed, turns on a thorough analysis of that instrument thereby feeling out and establishing the intent of the grantor. Her intention is the worthy part, the principal thing, and, however difficult the task of ascertaining it, it is a necessary judicial task because the controlling maxim is: The intention of the man is the soul of the instrument (Animus hominis est anima scripti), and the rule of law is that when the intention of the grantor in a deed or the testator in a will is ascertained, then the bounden duty of a judge is to make that intention effective unless it contravenes some positive rule of law.

In interpreting deeds and wills, the foregoing rule is a cardinal one to which all others are mere aids. [Roberts v. Crume, 173 Mo. l. c. 579; Cox v. Jones, 229 Mo. l. c. 62; Chew v. Keller, 100 Mo. l. c. 369.]

Moreover, in chief part, the guiding rules in discovering and uncovering the intent of a grantor or testator, if that intent be at all obscure, are these:

(a) The construction must not be on this or that part of the instrument to itself, but must be on the entire instrument from side to side, end to end and by its four corners — anywhere, everywhere, within its top, bottom and sides.

(b) The object to be subserved and the circumstances surrounding the grantor or testator are to be kept in view.

(c) ITis words are to be understood and taken in the sense indicated by the whole instrument.

(d) Effect must be given to all its words and clauses if that be possible in reason, so that each is made operative and effective to some purpose.

(e) The best mode of interpretation is to reconcile one clause with another where that can be done without straining the words by hairspun theories or overnice refinements.

(f) In a will, more than in deeds, and yet in the latter, the language used varies so materially and so much that precedents are rarely controlling in a concrete case except as they may furnish general aiding rules. Therefore the best interpretation of a will or deed is the instrument itself.

Agreeable to those pronouncements are: Cox v. Jones, 229 Mo. l. c. 62 et seq.; Armor v. Frey, 226 Mo. l. c. 666; Feller v. Lee, 225 Mo. l. c. 332; Chew v. Keller, 100 Mo. l. c. 369; Bean v. Kenmuir, 86 Mo. l. c. 669; Schorr v. Carter, 120 Mo. l. c. 413; Utter v. Sidman, 170 Mo. l. c. 294 et seq., which, in turn, but announce the harmonious sum of all correct. modern judicial exegesis in those particulars.

Quickened and admonished by those general principles, attend, to an analysis of the deed. Its consideration was the moral duty the mother, Eusebia, owed to her unfortunate son William to provide for his maintenance and care during his natural life out of the property once belonging to him. Next, her own support for her own life. The other considerations are set forth, as follows: “For the love I have for my children and grandchildren hereinafter named and other good considerations to me moving,” and the nominal sum of one dollar paid. It is argued for respondent that there is no indication that the mother in her conveyance had in mind any other grandchildren than those “hereinafter named,” to-wit, Buford and Legrand Ryland whose mother (her daughter) was -dead. It is argued for appellant that that is too narrow, too starved a view under the glow of all the words •of the deed. The fact being that Eusebia had at the time other grandchildren, as shown by this record, counsel for appellant point to that provision of the deed which speaks of the “heirs” of Legrand U. Buford and Florence I. Banks as within the range of her bounty should either her son Legrand Gr. or her daughter Florence I. be dead when the life uses fell in, when the trust became executed and when the title was to vest — -all those things coming to pass at one and the same stroke. They point further to the fact that in the habendum the real estate was to be held (not only for the children and grandchildren “as hereinbefore provided” but) as follows: “And to those who take the shares and remainder in fee, and their heirs and assigns forever.” They argue that those expressions in the deed, when taken with the warranty clause, running in favor of the trustee “and said other parties and their heirs and assigns” and especially when taken in connection with the provision relating to the time when “the title to said real estate and property shall go to and vest in” Legrand Gr. Buford and Florence I. Banks, unerringly indicate that Eusebia had in mind grandchildren other than the two Rylands.

We state the contentions on the consideration phase of this deed as one useful element in leading up to and getting at grantor’s intent; not for the purpose of letting the case turn on that as an only pivot, but because of its being of significance in throwing a dry light upon the main clause presently considered. In leaving this phase of the matter we observe: The natural presumption would arise, we think, that the grandmother had not only ties of love and affection for the two Ryland grandchildren, but for her other grandchildren, and that the claims of affection and blood between her and all of them would presumably dictate the course the title should take under the same or similar circumstances. Presumably, we think, under similar circumstances (to-wit, the death of her :son or other daughter prior to his or her being vested with title) she would want the title to go to those who might be of her blood relatives, to-wit, their children, or at least relatives of her blood. That view of it is within the reasoning of Earl, J., in Tillman v. Davis, 95 N. Y. l. c. 25.

Under the Statute of Descents and Distribution title descends through the blood and that statute but accords with the law of nature. [Hockaday v. Lynn, 200 Mo. l. c. 466 post and ante.] Preliminarily we deem it of importance, as a matter of a priori reasoning, to note the absence of anything in this deed evidencing a lack of love and affection for any of her other grandchildren although they were impliedly, though not expressly, named in the conveyance. If this be so and if presumably all her grandchildren stood on a par in her affection, barring the one fact that as to the Rylands their mother was dead, then, if any of her other children should also die prior to the time for the vesting of the title, there is nothing in this deed showing the grandmother would not want her grandchildren to take in lieu of their ancestor, it being' allowable to reason from similar to similar.

When love and affection enter into the consideration of a deed its flow (and the objects of it) are not without some interpretative value. In Bean v. Kenmuir, 86 Mo. l. c. 669 (the only case I know of in which the writer of the opinion did not agree to his own opinion, but writing one way, believed tbe other and dissented) it was said: “It is apparent that the actual consideration of the deed is one of love and affection, and we must find, if we can, the course the grantor designed and intended the title to take. ’ ’ In Huss v. Stephens, 51 Pa. St. l. c. 289, stress was put upon the consideration of a deed expressed to be the love and affection of the grantor for his grandchildren. Says Woodward, C. J.: “He intended, by that sure token, that they should take an estate from him. Had he named them he could scarcely have been better understood.” In that case the grant was to the “heirs of Andrew Lantz, J'r., son of the grantor” then in full life.

Coming now to the pivotal clause in the deed, we will presently restate it, prefacing some further observations by way of analysis of the instrument, viz.: The conveyance did not create a dry trust to be at once executed under the Statute of Uses. Contra, it was a live trust burdened with manifold duties and responsibilities on the part of the trustee seized to uses. The primary use ran in favor of the unfortunate son, during his life, for the net rents and profits of the trust estate. If he died prior to the mother, there was a like use in her favor during her life. Observe, up to this point in the deed, to-wit, her death or his death (outside of the consideration clause of the deed) there were no words tending to show the course the whole title should' take on the equitable life estate falling in. In many deeds that peculiarity is not present, but it is present here, is to be reckoned with and stands to be assigned some office. When the surviving owner of this equitable life estate dies, it was at that moment the grantor for the very first time takes up the question of what was to become of the title, up to that time vested in the trustee. She then for the first time speaks of title and the vesting of title. Attend to her words, viz.:

“On my death should. I survive the said William M. Buford, and on his death should he survive me, the said trust herein provided for shall terminate and the title to said real estate and property shall go to and vest in my two other children, Legrand Gr. Buford, and Florence I. Banks, one-third each, or to their heirs should they or either of them he dead, and the remaining one-third shall vest in my two grandchildren, Le-grand Ryland and Buford Ryland, as joint tenants and to their survivor, for life, with the remainder to my two other children Legrand Gr. Buford and Florence I. Banks, and their heirs, share and share alike, in fee simple forever. Any funds on hand with said trustee on the termination of this trust is to he paid over and disposed of in the same way as is provided for the disposition of the land except the share of the said Ryland grandchildren therein shall he paid to them absolutely.”

Under that conveyance, where was the title up to the time of William’s death? Clearly in the trustee. Vest means to accrue to, to be fixed, to take effect. [Black’s L. Diet. (2 Ed.), tit. “Vest.”] Now, when was the title to vest, to be fixed, in anyone else? Clearly on the termination of the trust. In whom was it then to vest by the express command of the grantor, who dominated the situation? Clearly in Legrand Gr. Buford and Florence I. Banks, one-third to each, but, observe (for thereby weighty matter hangs) only on a contingency, to-wit, on the contingency of their being alive. The title goes and vests in the alternative. Thus, if they are alive then to or in them. Otherwise, what becomes of it? Look again to the words of the deed, to-wit: “orto their heirs should they or either of them he dead.” When the grantor passed from the two-third interest to the Ryland one-third out of which another life estate was carved (to-wit, a joint one with the right of survivorship) the phraseology of her deed changes somewhat and the remainder runs “to my two other children, Legrand Gr. Bnford and Florence I. Banks and their heirs, share and share alike,, in fee simple forever.” It will he observed that in the first instance the word or is nsed followed by ‘to-their heirs should they or either of them be dead,”' and in the next instance the word and is nsed and nothing is said about the death of Legrand Gr. Bnford or Florence I. Banks but the “and” is followed by “their heirs, share and share alike, in fee simple forever.”

There was another contingency in the mind of grantor, namely, that the trustee might be in funds, when his trust terminated. What disposition was he to make of them? They were to be paid over and disposed of in the same way provided for the disposition-of the land except the Ryland share was to he paid to them absolutely. There is nothing to show that such contingency arose, but if it had arisen would the trustee have been authorized to pay Legrand Gr. Buford’s share (he then dead) to his administrator or executor, or must he pay it over to the “heirs” of Legrand GL Bnford precisely as the title to the real estate went in the event of his death before the termination of the trust?

It is obvious that seeking the intent of the testator, through the analysis of this deed, we have reached a point where we must consider ‘the legal significance of the use of the word heirs. We must consider the fact that the word or was nsed in one instance and the word and in the other in the clause referring to heirs. We must consider whether the word heirs is ever used in the sense of children or otherwise than as a word of limitation and if so, when. We must consider whether or may not he nsed for and and vice versa where the apparent dominating intent of the grantor calls for that interpretation. And we must take all those words in the sense indicated by the whole instrument, and the object to be subserved thereby. Let us look to those matters.

In the first place, learned counsel on neither side take the position that the change in phraseology in the disposition made of the Ryland one-third, as over against the disposition of the Buford third, is of any significance by itself. Both sides present their case at our bar on the implied theory that the deed should be so construed that all three thirds are subject to the same limitations in so far as the question of the remainder being vested or contingent is concerned. Put differently (barring for the present the will), the case is presented to us on the theory by appellant that if, by the deed, he loses all interest in the Ryland third then he by that token loses all. interest in the Buford third. So, respondent’s counsel submit the case on. the theory that if Legrand Gr. Buford did not take a vested remainder in his third he took no vested remainder in the Ryland third. Such concessions, we take it, proceed on the broad and sensible idea that-it would be unreasonable to conclude that the grandmother would intentionally introduce such confusion in the devolution of the estate as would spring on the theory there was created a vested remainder in one-third and a contingent remainder in the other. That,, making “confusion worse confounded,” would be a mischievous interpretation not to be made so long as-there were two ways about it.

In the next place the general rule is that the word heirs has a “technical” or'“artistic” meaning in wills and deeds. Ordinarily it is a word of limitation ascontradistinguished from one of purchase and a party coming within that designation is held to take by descent or inheritance and not as a purchaser. [Garrett v. Wiltse, 252 Mo. 699.] The curious may consult-that case as an attempt to throw light on the ordinary use of the word heirs as a word of limitation and not of purchase. But an exception to the rule is as well established as the rule itself, viz., that if the will or deed shows by its context that the word was-used as one of purchase, that is, as equivalent to children or grandchildren, as one not indicative of an expanding of the estate of the ancestor into an estate of inheritance, hut as one designating a new class of beneficiaries, as one operating to give the estate imported by it to the heirs described not derivatively but originally, then the word heirs is a word of purchase, but the presumption is it was used as a word of limitation and so it is taken unless the other meaning appears from the intendment of the instrument. [Garrett v. Wiltse, supra; Roberts v. Crume, 173 Mo. l. c. 579 et seq.] The Chew-Keller case (100 Mo. l. c. 369) formulates the doctrine of a line of others, prior and subsequent, in this way:

“The word 'heirs’ will be considered as a word of limitation and not of purchase, unless the will shows clearly that it is used to designate a new class of beneficiaries. [2 Washb. Real Prop (5 Ed.), 654; Landon v. Moore, 45 Conn. 422; Thurber v. Chambers, 66 N. Y. 42; Linton v. Laycock, 33 Ohio St. 136.] So the word 'heirs’ will be held to mean child or children when necessary to carry out the clear intention of the • testator. [Haverstick’s Appeal, 103 Pa. St. 394.] Indeed, these rules apply as well to deeds as to wills. [Rines v. Mansfield, 96 Mo. 394; Waddell v. Waddell, 99 Mo. 338.]”

The exception to the general rule requiring the word heirs to be taken as á word of limitation, i. e., the exception we have been speaking of, which, when the context points the way, reqires it to be taken as one of purchase, is merely putting in force the master rule for interpreting a deed or will by the intention of the grantor or testator. Agreeable thereto is Waddell v. Waddell, 99 Mo. l. c. 345-6, whereat we said:

“There is no lack of authority in support of the position that, if the words used in the context warrant it, and such construction will carry into effect the manifest intention that moved the execution of the ■deed or the signing of the will, then such intention will be made effectual, and the word heirs will be construed as meaning children, and vice versa, and children as issue, grandchildren or descendants, if- the justice or reason of the case requires it. [4 Kent (13 Ed.), 419; 3 Wash. Real Property (5 Ed.),- 282; Haverstick’s Appeal, 103 Pa. St. 394; Warn v. Brown, 102 Pa. St. 347.] And the fact that a deed is the instrument' requiring such liberality of construction; provided such construction is just and reasonable and accords with the evident intent of the grantor, and it is consistent with the principles of law, should not be allowed to defeat such liberal and beneficial construction any more than if the instrument under examination were a will. [Huss v. Stephens, 51 Pa. St. 282, and cases cited; Wyth v. Blackman, 1 Vesey, Sr., 196; Royle v. Hamilton, 4 Vesey, 437.] ”

By the same cardinal rule of construction whereby the intention is first ascertained and then made effective, the word or may be read and or vice versa. [29 Cye. 1505 et seq.; State v. Bulling, 100 Mo. l. c. 93; Maguire v. Moore, 108 Mo. l. c. 273.]

Or and and are not treated as interchangeable in judicial exposition; for “or” does not mean “and” nor does “and” mean “or” in precise speaking or writing, but when the literal reading introduces absurdity or hardship the one word may be put as a substitute for the other, if thereby obscurity is not im troduced, but, to the contrary, the obvious intent is subserved.

There is another principle to be reckoned with, namely, in case of doubt the law favors vested estates and an estate should be held to vest at the earliest possible moment, unless'a contrary intention is clearly manifested in the grant. [Tindall v. Tindall, 167 Mo. l. c. 225.]

Mindful of each and every of the premises, we have critically studied this deed in the light of those applicable principles of construction and those applicable rules of law and, not without hesitation at first, for the question is nice, have come to the conclusion that Legrand Gr. Buford did not take a vested remainder at the time of the execution of his mother’s deed, nor, being dead at the appointed time, did he ever take a vested remainder. We think the whole clear intendment of the conveyance leads up to the reasonable conclusion that the title was not intended to vest in any other than the trustee until the death of William M. and Eusebia Buford and that on the death of the survivor of them, then, and not till then, was the estate in remainder to vest. Our conclusion is also that then it was to vest on the happening of - a contingency and in the alternative. The contingency was that Legrand Gr. Buford should then be alive. The alternative was that if he be dead it should vest in his heirs and that the grantor meant to use the word heirs in the sense of children and not in an artistic or technical sense. Any other view assigns no meaning or office at all to the phrase* <£or to their heirs, should they or either of them be dead.” Did she not have the legal right to say when the estate should vest, and in whom? Did she not exercise that right? Did its exercise contravene any rule of law? In respondent’s view that phrase might as well be eliminated and when the grantor spoke those words she might as well (nay, much better) have held her tongue. But the common sense of it lies another way. The just view is to assign an office to those words and not make of them an empty phrase or a rhetorical flourish to perish by construction. We are very well aware of the process of reasoning by which that phrase could be eliminated as meaningless, to wit, that the bare word heirs adds nothing to the deed under our statute (R. S. 1909,-sec. 2870')' and that, as no living person can have an heir, death was necessary to create an heir in the law of conveyancing without saying so. Therefore saying so avails nothing. But as the phrase is introduced by the word or and, taken as a whole, it fills a substantial office in designating who should take the estate at the instant of time when by the command of the deed it was to vest, in case death had interposed prior to that time, we are loath to apply overnice refinements and subtleties to rid the deed of that pregnant phrase solemnly set down.

There is much refinement in the learning on contingent and vested remainders. The definitions of the one and the other are well marked down in the books. The difficulty has always been in close cases to apply, those definitions to the particular facts in judgment in each particular case. Sometimes, in judicially (but injudiciously) undertaking to add matter expansive or explanatory of those definitions, it has resulted in trying to explain something already obscure by something more obscure. Obscurum per obscurius. We shall avoid that pitfall. Blackstone defines a contingent remainder thus (2 Bl. Comm. *169):

“Where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined and the remainder never take effect.”

Bingham on Descents (p. 125) defines a contingent remainder thus:

“A contingent remainder is that part of an estate in fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some particular person or persons, is provided to go to some other person or persons of two or more named, which of the two or more is left uncertain, and is to be fixed and made certain by succeeding events. The remainder itself is certain, but the pern son who is to have it is uncertain until it is determined by the events named.”

Those definitions we approved in Dickerson v. Dickerson, 211 Mo. l. c. 490.

Minor (adopting from Fearne) defines it (2 Minor Inst., p. 337):

“A contingent remainder is a remainder limited to an uncertain person, or on an uncertain event, or so limited to a certain person, and on a certain event, as not to possess the present capacity to take effect in possession, should the possession become vacant.”

Fearne points out, that (1 Fearne, Rem., pp. 373-4) . . two or more several contingent fees may be limited merely as substitutes or alternatives one for the other, and not to interfere; but so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect. [Diving an example.] And this sort of alternative limitation was termed a contingency with a double aspect . . . and these were limitations of which the one was not expectant upon, and to take effect after the other, but were co-temporary; to commence from the same period, not indeed together, but the one to take effect in lieu of the other, if that failed.”

Washburn, speaking to contingent remainders, says (2 Wash, on Real Prop. [5 Ed.], p. 608):

“A contingent remainder is one whose vesting, or taking effect in interest is, by the terms of its creation, made to depend upon some contingency which may never happen at all, or may not happen within a requisite prescribed time, by reason whereof it§ capacity of vesting or taking effect in interest may be forever defeated. Or, in the language of another, it is one ‘which is limited to a person who is not ascertained at the time of the limitation, or which is referred for its vesting or taking effect in interest to an event which may not happen till after the determination of the particular estate,’ or upon the happening of some uncertain and doubtful event, or where the person to whom it is limited is not ascertained or yet in being. . . . Until the contingency has happened, the remainder is rather a possibility in its character than an estate; although it has become a familiar quality of an estate, to understand and apply which involves much nice learning. It is always an executory interest from its very nature.”

Says this court, through Black, J. (Rodney v. Landau, 104 Mo. l. c. 257):

“The vested or contingent character of a remainder is determined, not by the uncertainty of enjoying the possession, but by the uncertainty of the vesting of the estate.”

Having those definitions in mind, we lay great stress on the fact that a time was nominated in the deed itself for the estate to vest in those who were to take the remainder, and that at that crucial time there was a contingency provided, and an alternative sprang, pointing the course the title was to take in one of two ways — one way in case of death, the other in case of life.

While, as said, the case is a close one, bristling with difficulties, yet we think the conclusion announced is well within (if not all the facts, at least) the reasoning of the late eases of Buxton v. Kroeger, 219 Mo. l. c. 245; Dickerson v. Dickerson, 211 Mo. l. c. 490, and others collated in appellant’s brief from our own and the highest courts of other states. The tendency of modern decisions on questions of .contingent and vested remainders has been more and more to break away from the technical refinements of the old common law learning (Utter v. Sidman, 170 Mo. 284; Williamson v. Brown, 195 Mo. 313; Godman v. Simmons, 113 Mo. 122; O’Day v. Meadows, 194 Mo. 588; Buxton v. Kroeger, 219 Mo. l. c. 245) and allow deeds to be effective in line with the intent of their faces as 'gathered from the everyday, good sense of their language.

If it be asked where was the equitable estate in remainder after Eusebia executed her deed by delivery, the answer must be that it is of no consequence where it was. It did not have to vest at the making of the deed. Under the law of real property as now administered in this jurisdiction, a deed may “create a freehold estate in futuro, that is, a contingent estate per auter vie without creating at the same time and by the same deed or instrument a particular estate to support it,” as required by the old learning. [O’Day v. Meadows, 194 Mo. l. c. 621 et seq.; R. S. 1909, sec. 2876; Buxton v. Kroeger, 219 Mo. 224.]

On the agreed case on the facts, on the reasoning employed and the authorities cited the conclusion must be the trial judge, whose learning and wisdom in the law we rate high, erred in applying the law to the agreed case, and, to use the formula of the old Greeks, he will pardon us for not agreeing with him. There are cases the reasoning of which would possibly sustain the judgment, and others contra. Uniformity, however serviceable, has not always been possible even in judicial exposition although it proceeds on contemplation and not impulse. When Lord Sandwich complained in the House of Lords that he did not understand what orthodoxy and heterodoxy meant, and Bishop Warburton whispered in an aside, “Orthodoxy, my Lord, is my doxy; heterodoxy is another man’s doxy,” the remark no little illuminates some judicial doctrines on remainders. Without taking an extreme position in animadverting upon this doxy and against that, yet it is clear to me the conclusion arrived at and announced is sustained by reason and principle. This conclusion makes it unnecessary to consider the question of intestacy as to the Ryland one-third, bottomed on a construction of Legrand G. Burford’s will; for it makes that will empty and wholly inoperative as a devise of the land in question.

Accordingly the judgment is reversed and the cause remanded with directions to make the interlocutory judgment in partition effective in favor of appellant and to modify the final judgment on the report of sale and the distribution of the proceeds the same way.

We do not understand the appeal as intended to upset the sale itself. As we gather the controversy ranges around the right of appellant to a share in the land and his right to the proceeds of that share (now in the receiver’s hands) as between him and Lida M..Buford. The directions encompass that end and protect appellant’s rights as herein determined.

All concur.


author: BOND, J.

text:
    THE STATE ex rel. VAN RAALTE et al., Appellants, v. BOARD OF EQUALIZATION OF CITY OF ST. LOUIS et al.
    Division One,
    April 2, 1914.
    1. TAXATION: Board of Equalization: Judicial Act: Certiorari. The functions of the hoard of equalization in the city of St. Louis, in determining the amount of property a citizen should pay taxes on, are judicial, and if in the exercise of that power it acts without rightful jurisdiction, and this appears from the face of the record, certiorari is the proper remedy to quash its records and proceedings.
    2. -: -: of St. Louis: Notice: Reference to Statute. By the city charter the hoard of equalization of' St. Louis is authorized to notify a citizen of a proposed increase in the assessment of his property, and a mere mistake or inadvertence in referring, in the notice to him to appear, to an act of the Legislature as the source of its power, instead of to the provisions of the charter, does not divest the hoard of any rightful authority possessed by it under the charter.

      3. -: -: Notice: Irregularity: Cured By Appearance. Any mere irregularity in the notice to a property owner of a proposed increase in the assessment of his property given by the board of equalization, is cured by his appearance before the board in response thereto and a hearing on the matter.
    4. -: -- — : Proposed Increase: Prejudged. Where it appears .that the board of equalization at the hearing did not increase the citizen’s assessment to the amount proposed in the notice, but took as the amount of his secured loans that admitted by him, and then reduced this amount by thirty per cent, so as to equalize the valuation of this property with that placed upon real estate for assessment purposes, the board did not prejudge the amount by which it increased the assessment of his property.
    5. -: Deduction of Money Borrowed. In assessing the value of secured notes, the board of equalization is not authorized to deduct therefrom the amount, of money borrowed by the taxpayer- in conducting his business. The statutes do not provide that property is exempt from taxation to the extent of the taxpayer’s indebtedness.
    6. -: Deductions of Uncollectible Credits. Loans secured by pledges of property worth more than they amount to are not to be classified as “uncollectible credits,” even though the payment is finally made in property rather than in money.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      Stern £ Haberman for appellants.
    (1) The duties of the board of equalization are-judicial in character. Black v. MacGonigal, 103 Mo. 197. (2) . Certiorari is the proper remedy. ■ State ex rel. v. Moss, 69 Mo. 495. (3) The proceeding is brought to issue by the motion to quash. State ex rel. y. Stephens, 146 Mo. 662; State ex rel. v. ‘Williams, 70 Mo. App. 238. (4) Jurisdiction for taxation must depend upon jurisdictional facts stated in the statute under which, the taxing body proposes to act. Mc-Cune v. Jepfson, 123 N. Y. 142; State ex rel. v. Hagar, 91 Mo. 452; Railroad v. Apperson, 97 Mo. 308. (5) The board of equalization for St. Louis is created under and its powers and duties defined by Art. 5, sec. 24, Scheme & Charter. (6) Section 9150, R. S. 1899 {Sec. 11354, R. S. 1909), under which appellees acted, relates to county assessors and county boards of equalization and appellants could not act thereunder. State ex rel. v. Alt, 224 Mo. 508; Sees. 11402-11406, 11341-43-46-52-53, R. S. 1909. (7) Credits subject to taxation are net credits, not gross credits. Sec. 11386, R. S. 1909; Laws 1871, p. 94, sec. 55; Art. 4, see. 28, Constitution; Sedalia ex rel. v. Smith, 206 Mo. 346; Connecticut v. Albert, 39 Mo. 183; Dart v. Bagley, 110 Mo. 51; Church v. U. S., 143 D. S. 457; Perry v. Jefferson, 94 111. 220; Rushville v. Rushville, 15 L. R. A. (Ind.) 324; Clerk v. Dubois, 1 L. R. A. (N. S.) 999; Journal House of Representatives 1871, pp. 618, 628, 629, 877; Ex parte Heldman, 117 Mo. App. 620; Riddick v. The Governor, 1 Mo. 104; State ex rel. v. Hostetter, 137 Mo. 648; State ex rel. v. Diveling, 66 Mo. 379; Secs. 42, 37, 39, 40, Constitution; Taylor v. Inhabitants, 102 Me. 401; Blake v. Bank, 90 U. S. 307; Edgar v. Randolph, 70 Ind. 331; Stout v. County, 107 Ind. 331; H. S. v. Railroad, 157 Fed. 618; Mosle v. Bidwell, 130 Fed. 336; Minnesota v. Sibley, 2 Minn. 13; R. S. 1899, sec. 3091; Sec. 1309, Iowa Code 1897; Sec. 1646, Hurd’s Illinois Statutes 1905; Loan Assn. v. Keith, 153 111. 622; School Directors v. School Directors, 81 Wis. 428; McFarland v. Railroad, 94 Mo. App. 336; Sec. 8057, R. S. 1909; Express Co. v. Seibert, 142 U. S. 339. (8) Credits which will not be received or cannot be collected are not subject to taxation. Sec. 11387, R. S. 1909; Laws 1871, p. 94, sec. 56. (9) In re credits will not be received or cannot be collected. Sec. 11387, R. S. 1909.

      William E. Baird and Truman P. Young for respondents.
    (1) The board of equalization of the city of St. Louis had jurisdiction to increase the appellants’ assessment. (a) Sec. 9150, R. S. 1899, applies to the board of equalization of the city of St. Louis, and the board had power to act under that section. The city of St. Louis corresponds to a county, and statutes placing duties upon county officers apply to like officers in the city of St. Louis. Constitution, art. 9, sec. 23; R. S. 1899, sec. 4160'; State ex rel. v. Wilder, 198 Mo. 166; Henderson v. Kearney, 168 Mo. 362; State ex rel. v. Hudson, 78 Mo. 302; Breman Bank v. Urnrath, 55 Mo. App. 43; Clarkson v. Furniture Co., 22 Mo. App. Ill; Voight v. Avery, 14 Mo. App. 50. All taxes must be levied and collected by general laws, Constitution, art. 10, sec. 3, art. 4, sec. 53. Sec. 9150, R. S. 1899, originated as section 34 of the Act of March 30,1872. Laws 1872, p. 90. This was a general revenue law applicable, except where expressly stated otherwise, throughout the entire State. The county board of' equalization created by section 14 of that act corresponded with the court of appeals provided for by section 8. Laws 1872, p. 99; Laws 1869-70, p. 451. The board of equalization of the city of St. Louis was created by section 24 of article 5 of the city charter. This board supplanted the court of appeals theretofore existing in the city, and corresponds in all respects to the boards of equalization in the various counties of the State. R. S. 1899, sec. 9383; State ex rel. v. Alt, 224 Mo. 509. (b) The board of equalization had full power to increase the assessment under the terms of the charter of the city of St. Louis. Charter, art. 5, sec. 24. It is not material that the notice mentions section 9150. If the board had power to act, it is immaterial if it misconceived the source of its power. The appellants- were accorded a sufficient hearing. State ex rel. v. Baker, 170 Mo. 194. (2) The appellants were not entitled to deduct from the sums of credits listed for taxation outstanding debts.; (a) The court will not review the action of the board upon its finding of facts in appraising the appellants’ property. 4 Ency. PI. & Pr., pp. 98, 119; State ex rel. v. County Court; 45 Mo. App. 387; State ex rel. v. Cunningham, 153 Mo. 642. (b) Credits are made subject of taxation in Missouri. B. S. 1899, secs. 9118, 9121, 9123, 9180. There is no provision in the statutes allowing the deduction of debts. In Missouri taxes are levied upon property, and not upon persons. The financial condition of the owner of the property is, therefore, immaterial. Judson on Taxation in Missouri, p. 217. (c) No deduction is allowed on account of debts in the taxation of property in general. Life Ins. Co. v. Assessors, 56 Mo. 503. To allow such a deduction from credits and not from other property, would be to create an exemption from taxation in favor of certain credits. Exemptions can never be created by mere inference, but must be expressly provided for. 27 Am. & Eng. Ency. Law, p. 692; Litterer v. Crawford, 157 Mo. 51; State ex rel. v. Casey, 210 Mo. 248; 12 Am. & Eng. Ency. Law, pp. 285, 288, 293; Cooley on Taxation (3 Ed.), p. 356. (d) To give Sec. 9181, B. S. 1899, the meaning contended for would make it contravene the provision of the Constitution requiring all property to be taxed in proportion to its value. Bank v. Hines, 3 Ohio St. 8; In re Assessment and Collection of Taxes, 4 S. D. 6. (3) The board had complete authority to assess the value of appellants’ credits. Its action in so doing is not subject to.review. Whether or not the credits were collectible were questions necessarily considered by the. board in fixing their value, and the appellants cannot have a review by the court of the action of the board of equalization in refusing to allow a deduction on account of the alleged fact that a certain portion of credits were usually uncollectible. 4 Ency. PL & Pr., p. 119; State , ex rel. v. Cunningham, 153 Mo. 643; Judson on Missouri Taxation, p. 239.
    STATEMENT.
    The charter of the city of St. Louis created a board of equalization of five persons and made the president of the board of assessors the president thereof, who, with four “discreet and experienced real estate owners” to be appointed by the judge of the circuit court of the city of St. Louis, should constitute that board. It specifies when its sessions shall begin and end, and provides: “Said board shall hear and determine all appeals in a summary manner, shall adjust and correct the assessment books accordingly, shall determine as far as possible whether the property has been assessed at the true cash value, and in just proportion to the assessed value of the other property in the city similarly situated, and to this end shall increase or diminish the assessment on any property, real or personal, or mixed. If they propose to increase the assessment in any case notice thereof to be served upon the owner, agent or representative thereof, if within the city, who shall have the right to be heard upon such proposed increase. . . . The members of such board, before entering upon the duties of such office, shall take and subscribe an oath similar to that required of county boards of equalization.”
    The charter empowers the board to send for persons, books and papers and to compel the attendance of witnesses, and to issue process' to be served by the sheriff. [Charter of St. Louis, art. 5, sec. 24.]
    The board of equalization organized as prescribed in said charter on the 12th of April, 1910, notified relator that it proposed to increase the assessed value of its property for that year from $11,400 to $90,000, according to section 9150, Revised Statutes 1899, that such increase would be based on “cash and credits, money loaned or invested in pledges.” This notice fixed a day for the appearance and hearing of-any objections which relator might have to such increase. On the day set for the hearing and after the appearance and statement of relator, who was represented by his attorney, the board of equalization increased the assessment to $28,900.
    This sum was arrived at by taking the evidence that relator, a pawnbroker, owned loans amounting to $40,000 secured by personal property. The board took seventy per cent of that as its assessable value, that being the rule applicable to the assessment of real estate in the city of St. Louis, and refused to allow two other deductions claimed by relator, one for $25,000 which relator claimed it owed to other persons for borrowed money, and the other for thirty per cent of the Value of its assessable property which relator claimed would represent its customary failure of collection of money owed on pledges.
    A writ of certiorari was sued out of the circuit court bringing before it the record of the board of equalization. Upon the trial of that proceeding the writ was quashed, from which judgment the relator duly appealed to this court.
   OPINION.

L

BOND, J.

(After stating the facts as above).— The functions of the board of equalization in judging the assessments of property aré judicial, and if in the exercise of that power it shall act without rightful jurisdiction, and this should appear from the face of its record; then- certiorari is the proper remedy to quash its record and .proceedings. [State ex rel. v. Bank, 234 Mo. 194; State ex rel. v. Stephens, 146 Mo. 662; Ward v. Board of Equalization, 135 Mo. 309; Black v. McGonigle, 103 Mo. l. c. 197; State ex rel. v. Moss, 69 Mo. 495.]

In the notice given relator of the intention of the board of equalization to increase its assessment, reference is made to the source of its power, in section 9150, Revised Statutes 1899, now section 11354 of the present revision. Whether under the provisions of the Constitution (art. 9, secs. 23, 25) this section of the statute is applicable after the adoption of the charter of St. Louis need not be ruled. [State ex rel. v. Wilder, 198 Mo. 166; Bremen Bank v. Umrath, 55 Mo. App. 43.] The board of equalization was created by the charter and its duties are defined' therein and these include the authority to notify the relator of a proposed increase of the assessment of its property, and a mere mistake or inadvertence in referring to the act of the Legislature instead of the provisions of the charter, in the notice to appear, could not divest the board of any rightful authority possessed by it under the terms of the charter of the city of St. Louis.

It is -not denied and the record of the board’s action discloses that relator duly appeared at the time fixed in the notice for the consideration of an increase in its assessment. This cured any informality in the notice and secured to relator the hearing it was entitled to have before the increase of the assessment. [State ex rel. v. Baker, 170 Mo. l. c. 199, 203.]

The record sent up in obedience to the writ further shows that, after such hearing, the board of equalization only increased the assessment to the amount of its secured loans made as pawnbroker, to-wit: $40,000, admitted by relator on the hearing, and that of this amount the board deduced thirty per cent, so as to equalize the valuation of this property with the valuation put upon real estate for assessment purposes in the city of St. Louis. It is clear, therefore, that the board did not prejudge the amount of proposed increase of relator’s assessment, for it did not adopt the amount of increase suggested in the notice, but finally fixed the amount at a much lower sum after a hearing in the manner above stated. The assignment of error by relator that the board prejudged the amount which it increased the assessment of relator’s property is therefore overruled.

II.

This leaves only the question of the jurisdiction of the board to decline the deduction from the sum adjudged by it to be the true cash value 0f relator’s property of the amount of its indebtedness ($25,000) alleged to have been borrowed from other persons than pledgors, and the further amount of an assumed failure of collection reaching thirty per cent of the money loaned on pledges and deposits. Taking these in order.

Taxes are leviable on all property except as exempted by statute (R. S. 1909, secs. 11334-5, 11337, 11384, 11519) and the fact of such exemption must appear in express terms or by necessary implication, in the language of the Constitution or the statute. If the terms of the law which are invoked to show an exemption from taxation are susceptible of any other rational construction, the exemption cannot exist. [Cooley on Taxation (3 Ed.), 356; State ex rel. v. Casey, 210 Mo. l. c. 248; Fitterer v. Crawford, 157 Mo. 51.]

We may concede for the argument that an implication might be drawn from the language of the section of the statute (R. S. 1909, sec. 11386), referring to deductions for any indebtedness to “any mutual insurance company . . ., any unpaid subscription to any religious, literary, scientific or charitable institu.tion or society,” or the capital stock of corporations, that the Legislature did not intend to exclude a deduction for general indebtedness when the taxpayer was listing his property for assessment. But this inference is not the only one which can be drawn from that statute. It admits of another of equal potency, which is that the Legislature intended to emphasize .the fact that these particular instances of indebtedness could not be offset against any other property of any kind, which it was the duty of the owner to return for taxation, although as to some of those specified, obligations no consideration whatever was rer ceived (religious Or charitable) and as to others the indebtedness (capital stock of corporations) would be .taxable in the hands of the corporations. Nor does it exclude the further inference that if the Legislature had intended to allow a deduction of other than the specified indebtedness, it would have said that in simple terms and would not have provided, as is done in the next section (R. S. 1909, sec. 11387) that the taxpayer might deduct his uncollectible credits. The two sections are in pari materia and in enacting them the Legislature had in mind the liability of all property t.o-taxation. By the former it referred to certain kinds of indebtedness which must be returned for assessment and by the latter it pointed out one part, the uncollectible portion of “credits” (using that term) ■which the taxpayer might leave out of his list.

This shows that the admissible inference to be 'drawn from the first section is not the only reasonable deduction which its terms' afford, and, hence,, does not in logic have the strength' of a conclusive deduction shutting out all others, and thereby making it a necessary implication from the language of the statute, as it would have to be tó fall within the principles •of law above stated. •' -

"" " We hold' that, there is-nothing in the -language of •the'sections, supra,.which supports the .theory of appellants’ counsel that relator was entitled to deduct from its credits listed for taxation the amount it owed for money borrowed from other persons than its debtors.

in.

We have considered the history of revenue laws in appellants’ brief and have given due weight to its interpretative aid. But it falls short of demonstrating that we should interpolate in the statute a provision (now lacking) .that in listing what is due a taxpayer by a solvent debtor or on loans secured by property, he may deduct what he owes other persons than those ennumerated in section 11387 of the present revision.

Neither do we perceive any logical reason why such general indebtedness should only be deducted from personal rather than real property.

IY.

The final contention of appellant is that the board of equalization erred in refusing relator credit for an assumed percentage of its forfeited loans. Even if this question was raised by the face of the record we should not sustain the assignment of error. [State ex rel. v. Cunningham, 153 Mo. 643; Judson on Taxation in Missouri, p. 239.]

It was not shown that such a percentage of forfeitures of its loans would cause any pecuniary damage to relator. All of them were secured by pledged property' inferably of greater value than the amount loaned.

The statute (R. S. 1909, sec. 11387) permitting the taxpayer to deduct from his “credits” what portion he is unable to collect, does not mean that he shall do so, when he collects the amount due him by getting its value in property though not in money. "When these pledges are forfeited the loans are paid in property and these are not uncollectible “credits” in the statutory sense.

The judgment is affirmed.

All concur.


author: BLAIR, C. PER CURIAM.

text:
    PETTIS COUNTY, Appellant, v. D. H. REAVIS.
    Division One,
    April 2, 1914.
    1. EVIDENCE: Survey. A survey made by a county surveyor is admissible as evidence, and, in a sense, presumptively correct, but it is not indisputable. [Sec. 11301, R. S. 1909.]
    2. ABSTRACT: Motion for New Trial: Refused Instructions. Where appellant’s brief complains of the refusal of a certain instruction, and the motion for a new trial complains only of the refusal of another instruction numbered 2 which does not appear in the abstract, the abstract showing, however, that instruction 2 was refused before the instruction complained of in the brief was offered, the propriety of the refusal of the latter instruction cannot be considered on appeal.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    Affirmed.

      Sangree & Bohling for appellant.
    (1) The county surveyor’s survey was made according to law. R. S. 1909, secs. 11313 and 11314. His testimony made a complete case for plaintiff. R. S. 1909, sec. 11301; Houx v. Batten, 68 Mo. 86; Carter v. Spracklin, 246 Mo. 116; State v. G-uerusly, 9 Mo. App. 312.

      George F. Longan for respondent.
   BLAIR, C.

— Ejectment for a strip of ground which may be described thus: Beginning six and two-thirds feet south of the section line and 1350% feet west of the northeast comer of section 12, township 45, range 23, Pettis county; thence south 13 1-3 feet; thence west 2701 feet to. a point 20 feet south of the northeast corner of M "W. of N. W. of section 12; thence easterly to the beginning.

There was evidence the parcel described was part of a strip forty feet wide, opened as a public road many years ago, and evidence to the contrary. Plaintiff depended principally upon the testimony of the county surveyor and a survey he had made of the parcel. Defendant offered evidence tending to show this survey was incorrect and that the surveyor had established the northeast corner of section 12 at a point different from that at which the government corner had been originally placed.

The errors assigned are the admission of the evidence to impeach the survey plaintiff offered and the refusal of an instruction asked by plaintiff.

Since this appeal was taken this court in Carter v. Spracklin, 246 Mo. l. c. 119-120-, has carefully reconsidered the exact question presented by plaintiff’s first and, we take it, principal assignment of error and reached a conclusion contrary to plaintiff’s view. It is unnecessary to restate the reasons advanced in that case. That decision announced the correct doctrine. The survey made by the county surveyor was admissible and, in a sense, presumptively correct hut was not indisputable. It did not conclude defendant.

So far as concerns the refusal of the instruction mentioned in the brief, the motion for new trial does not complain of that ruling. There is a complaint in the motion of the refusal of “instruction number two” hut none other. Instruction number two does not appear in the abstract and the abstract shows it was refused before the instruction complained of was offered. If the abstract is correct, and we must assume it is, the refusal of the instruction discussed in the brief cannot be considered.

The case seems to have been well tried and the jury settled the question of fact against plaintiff. The judgment is affirmed.

Brown, C., concurs.

PER CURIAM.

— The foregoing opinion o’f Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: "WOODSON, P. J.

text:
    WILLIAM WHITWORTH, Appellant, v. ELIAS BARNES et al.
    Division One,
    April 2, 1914.
    1. PRACTICE: Ejectment: Affirmative Defense: Burden. , Ir* ejectment, where defendant sets up title by limitations under a parol gift of the land from plaintiff, it being, conceded he was the owner of the record title, the burden of proof rests upon defendant to establish the defense pleaded.
    2. EJECTMENT: Death of Plaintiff After Appeal: Revivor. In ejectment for possession of land, prosecuted to judgment in favor of defendants, and appealed by plaintiff, upon his death' . after the appeal has been perfected the cause should be revived-in the name of his heirs and cannot be revived in. the name of, . ■ his administratrix, and if revived in her name alone the appeal must .be dismissed. . .
    Appeal from Boone Circuit- Court. — Hon/ David H, . . Harris, Judge. - . ■ j
    Appeal dismissed.

      Sebastian & Sebastian for appellant.

      Harris & Finley for respondents.
   "WOODSON, P. J.

— William Whitworth, deceased, instituted this suit — ejectment—in the circuit court of Boone county, against Elias Barnes,. to recover forty acres of land described in the petition. Anna Eliza Barnes, the wife of the defendant and daughter of the plaintiff, filed a separate answer setting up the ten-year Statute of Limitations, under a parol gift of the land to her by her father, and therein prayed the court to try, ascertain and determine the rights, title and interest of the parties to the land in controversy.

The defendant Elias Barnes, by a separate answer, set up title in his wife under said parol gift and pleaded the ten-year Statute of Limitations.

The case was by agreement of parties tried before the court without the intervention of a jury, and after hearing the evidence- — no instructions having been asked, given or refused — the court found the issues for the defendants and rendered judgment accordingly.

After all proper preliminary steps were taken the cause was duly appealed to this court; and since the appeal had been perfected the plaintiff died, and upon the suggestion of his death the cause was revived in the name of his widow, the administratrix of his estate.

Under the pleading, it being conceded that the plaintiff was owner of the record legal title to the land, the court held, and properly so, that the burden of proof rested upon the defendants, to establish the title and defense stated in the answers.

The evidence for the defendants was substantially as follows:

The defendant, Anna Eliza Barnes, testified. that she was one of the defendants, the wife of Elias Barnes, the other defendant, and a daughter of the plaintiff, William Whitworth, deceased, and the stepdaughter of the appellant, Carrie L. Whitworth, the administratrix of his estate. That in the year 1898 she and her husband were living on a farm belonging to one Andrew M. Mathis, some distance west of the town of Sturgeon, Boone county, Missouri.

At that time the forty acres in controversy was a part of her. father’s farm, on which he and her mother resided, which at that time had been rented by her father to one Beatty, for a period of five years, which had two years to run.

That the plaintiff stated to defendant, Anna, and others, that he had rented the land to Beatty in order to have it cleared and put in cultivation for her, but at the expiration of three years, he, desiring to have her near him and his wife, changed his mind and wanted defendants to have the land at that time. Mr. Beatty, however, had to be considered before defendants could secure possession of the place. With that purpose in view the plaintiff tried to get Beatty to give possession, and offered to furnish the money to defendants with which to buy him out, but they refused to pay any sum for the possession.

That while Beatty was willing to deliver possession and get rid of the lease, he was afraid that he might be liable thereunder for the rent during the two years, the unexpired term of the five-years’ lease of the premises, and therefore refused to deliver possession unless the lease was formally transferred to defendant, Elias Barnes.

That this was done for the purpose only of securing the possession of the land and not for the purpose of making Barnes the tenant of plaintiff.

That after having settled those matters between the parties, the defendants, on December 24, 1898, moved from their place near Sturgeon to the place in controversy, the plaintiff himself assisting them in moving.

‘ The defendant then introduced some eight or ten witnesses, whose testimony tended to prove the truthfulness of the allegations of the answer regarding the parol gift of the land by the plaintiff, William Whitworth, the father, to the defendant, Anna Eliza Barnes, and that in pursuance thereof she and her husband left their old home and moved upon the land in controversy. In substance they testified that he told her prior to and at the time they moved, that Anna could have the place; that he said to them when the question came up regarding the building of a house on the premises, that he had given her the land, but he would not build a house thereon for her; also that at the time the plaintiff refused to purchase some fruit trees an agent was trying to sell him for the place, he assigned as the reason that he had given the land to her, and that he would, let her and her husband purchase the trees.

Pleasant Whitworth, the brother of the plaintiff, testified that the latter told him that he had given the place to his daughter, and was going to make her a deed.

Also he stated to a number of persons that he had given the place to his said daughter, and that her mother, Mrs. Whitworth, in the presence of plaintiff, stated that he had given the place to Anna in order that she might be near them, and assist them in their declining years, to which he made no reply.

The evidence also tended to prove that with the knowledge and consent of the plaintiff, the defendants made valuable and lasting improvements upon the place, costing some two or three hundred dollars, besides clearing some eight or ten acres of ground, at the cost of five dollars per acre. That the improvements consisted of building an addition to the residence, a chicken-house, building fences and various other matters of similar character.

That during the entire occupancy of the place, more than ten years prior to the institution of this suit, the defendants paid no rent for the place, notwithstanding the fact they were in the exclusive, open, notorious and continuous possession of the premises, residing upon, cultivating and receiving the products thereof.

That while the plaintiff paid all the taxes upon the place, and cut stove-wood therefrom for his own use, yet he paid the taxes because his daughter was hard up and he wanted to assist her, and cut the wood by permission of the defendants.

That some time after the parol gift of the land to the defendant Anna Eliza Barnes, her mother died, and the plaintiff, her father, married the appellant, Carrie L. 'Whitworth, the administratrix in whose name this cause was revived.

The plaintiff then introduced some three or four witnesses, who, according to the statement of counsel for appellant, testified as follows:

William Whitworth stated that he owned the forty acres of land described in the petition and that he had leased it to Mr. Beatty for five years; that Dr. Stover drew the papers and held them; that he did not remember when the lease was transferred to Barnes, but it was before the dry year 1901; that Barnes went there under the lease and that he never gave him any other possession in any way or fashion; that he never gave his daughter this land, if he had he would have made her a deed for it; that since Barnes and his wife had been there he had gone there whenever he pleased and cut and hauled off wood, and paid all the taxes; that the first time he ever knew that his daughter claimed the property or set up any title to it was about the first of August, 1910; his daughter wanted him to furnish the money to build another room to the house, but he hold her there were more rooms there now than he needed, and they then put up a small box-room worth about fifteen dollars; the land was to be cleared under the Beatty lease; that he built the fence; the rental value of the place is about fifty dollars a year or about five dollars a month; his daughter has never paid any rent.

Cross-examination:

• “My daughter moved to the place about 1900, as well as I remember, and has lived on it ever since and has not paid any rent; I never asked her for any; I do not remember having a conversation with Mr. Mathis about the place or with Mr. Goldberry about some trees; I helped to move my daughter to the place; I do not remember having a conversation with Mr. Rowland or his wife, nor with my brother, Pleasant Whitworth, about this land.” -

J. H. Stover stated that he had been a justice of the peace for a number of years; that he wrote a lease from William Whitworth to Mr. Beatty, and that it was left with him to keep; it was written about twelve years ago; “after it had been written some time Mr. Barnes and Beatty came to my house and I wrote a transfer of the lease from Beatty to Barnes; I looked for the lease but could not find it; it was for five years and on the land in controversy; the transfer was made about a year before the dry year, about 1900, 1 think.”

Cross-examination: “I am not positive about the time; it was some time after the lease was written.”

J. F. McCowan stated that he and his wife were at the Barnes house in August of the dry year, 1901, and Mrs. Barnes stated that Mr. Burham had been there the day before to sell them some fruit trees; that they were there on the Beatty lease and did no.t want to buy any trees, as they did not know how long they would stay. Cross-examination: “I do not remember any other part of the conversation. ”

Mrs. J. F. McCowan stated that she and her husband were at the Barnes house one Sunday evening in July or Augmst of the dry year, 1901, and Mrs. Barnes stated that Mr. Burnham had been there to sell them some fruit trees and that she did not buy any trees because her father had not given her the place and she did not know that he ever would; that they were there under the Beatty lease.

Cross-examination: “I do not remember anything further except that she said she would not make any improvements unless her father would make her a deed. I am a sister of the present Mrs. Whitworth.”

Steven Marsh stated that he lived close to the farm in controversy and had seen Mr. Whitworth cutting and hauling wood off of that part of the farm which lies next to him

Defendant’s Rebuttal: Elias Barnes, recalled, stated that McCowan and his wife were not at his house about the dry year.

The court took the case under advisement and on the following day, October 13, 1910, entered the following : . . .

Then follows a finding of facts and a judgment of the court in favor of the defendants, as prayed in the answers, from which, as previously stated, the plaintiff appealed.

Upon this state of the record counsel for respondents insist that the appeal should be dismissed for the following assigned reason:

“The appeal in this case should be dismissed, because this is an action for possession of land, and. the administratrix has no such interest in the subject of the action as will authorize her to prosecute the appeal in her name as such administratrix. Real estate descends to the heirs, and they only are proper parties in ejectment. The personal representative under order of the probate court may rent ont or sell land for the purpose of paying debts, but there is nothing in this record, or in the motion to revive this case in the name of-said administratrix, to indicate that the estate of William Whitworth is not possessed of sufficient personal estate to pay his debts. The law on this subject is so well settled that it is unnecessary to cite all of the numerous cases in point.”

This proposition was presented to this court in the recent case, of McQuitty v. Wilhite, 218 Mo. 586, l. c. 591, where the authorities are reviewed and well considered by my learned associate, Judge Graves.

The conclusion was there reached that the administrator was not the proper party to prosecute the suit, and after a careful examination of the authorities cited, I see no reason for a departure from that ancient and well established rule.

Adhering to that rule, the result must be that the appeal should be dismissed.

While we very much regret to dismiss appeals upon grounds not going to the merits of the case, yet a most casual consideration of the record in this ease discloses the fact that the judgment of the circuit court was right, and that the appeal to this court is totally destitute of all merit; consequently there being no merit in the case, and the appeal being improperly prosecuted, we' have no hesitancy in dismissing the appeal, as prayed.

It is so ordered.

All concur.