author: KLINGEMAN, Justice.

text:
    FOREMOST COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. NORTH STAR DODGE, INC., Appellee.
    No. 15505.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 13, 1976.
    Appellant’s Motion for Rehearing Granted Oct. 13, 1976.
    Appellee’s Rehearing Denied Oct. 13, 1976.
    Appellee’s Second Motion for Rehearing Overruled Oct. 27, 1976.

      Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.
    A. W. Worthy, Gresham, Davis, Gregory, Worthy & Moore, San-Antonio, for appellee.
   KLINGEMAN, Justice.

Our opinion of July 21, 1976 is withdrawn. In such opinion we reversed and remanded the judgment of the trial court for a new trial. Both appellant and appel-lee filed motions for rehearing. After due consideration, we have concluded that the judgment should be reversed and rendered. Our previous opinion is withdrawn and the following substituted in lieu thereof.

This is an insurance coverage case. On April 11, 1972, plaintiff, North Star Dodge, Inc., put its Dodge motor home into the possession of Joaquin Contreras after the execution of a seven-day rental agreement. Subsequently, the motor home was damaged when it overturned carrying illegal aliens near Paul’s Valley, Oklahoma, and was thereafter returned in a damaged condition to plaintiff within the seven-day period. Defendant, Foremost County Mutual Insurance Company, was the insurer for plaintiff under a certain “COMBINATION AUTOMOBILE POLICY NO. KT261-3504131,” which was introduced into evidence. Plaintiff brought suit in the District Court of Bexar County, Texas, alleging that Contreras obtained and appropriated the motor home through fraudulent means, and sought recovery against defendant on the policy under theft and collision coverages. Defendant denied liability for the loss and specially pleaded two policy exclusions.

Trial was to a jury with only two special issues being submitted. In Answer to Special Issue No. 1, the jury found that Contreras acquired possession of the motor home in question by theft by false pretext; and, in answer to Special Issue No. 2, the jury found that the reasonable and necessary cost of repair to the motor home was $8,221.67. Judgment was entered for plaintiff in that amount. Defendant filed motions for judgment, judgment n.o.v., to disregard the jury’s answers to special issues, and a new trial, each of which was overruled.

Defendant asserts seventeen points of error. Eight of Defendant’s points of error complain that the trial court erred in failing to grant defendant’s motion for judgment. All of these points of error are “no evidence,” or “legal insufficiency” points of error. Four points of error complain that the trial court erred in failing to grant defendant’s amended motions for new trial. Two of defendant’s points of error complain that the trial court erred in refusing to submit certain requested special issues. Three points of error complain that the trial court erred in admitting into evidence certain exhibits.

The relevant policy provisions here involved read as follows:

Coverage E — Collision or Upset. To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto.

Coverage G — Theft (Broad Form). To pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage.

The exclusions plead by defendant read as follows:

(o) under coverages D and G, to loss due to conversion, embezzlement or secretion by any person in possession of the automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance;

(r) under coverages D, E, F, G, H, I and J, while the automobile is used in any illicit trade or transportation.

The pertinent evidence may be summarized as follows: A rental agreement between plaintiff and Contreras was introduced into evidence wherein the motor home was rented to Contreras for a seven-day period, which period covered the time the loss occurred. The record contains a copy of a receipt showing payment of the rental amount by Contreras.

The manager of plaintiff’s motor home and leasing department testified that he was contacted by Contreras about leasing a motor home, and that Contreras signed the rental agreement in his presence. He further testified that Contreras told him he was going to Minnesota to see his family and would use the home approximately seven days. He stated that Contreras had a big wad of money with him, and that when he signed, he paid the rental in cash. He testified that the next time he saw the vehicle was approximately a week later when it was pulled into the lot by a wrecker; it had been turned over; and, there was extensive damage. The vehicle was returned within the seven-day period.

Albert A. Blackway, a witness for plaintiff, testified that he was an investigator with the U.S. Immigration and Naturalization Service. He testified that Contreras was under investigation with regard to the smuggling of illegal aliens; in connection with such investigation he received a call from an agent in Laredo in April 1972, and went to the Star Motel in San Antonio, which had also been under investigation. At such motel he found about twenty illegal aliens, but did not find Contreras. He testified that Contreras had been operating an illegal smuggling ring out of Mexico and had operated in the San Antonio area for a period of about three years; Contreras had a highly sophisticated smuggling ring.

Plaintiff introduced into evidence as plaintiff’s exhibits 4, 5, and 6, certified copies of records of federal district court proceedings, which included excerpts from testimony of Joaquin Contreras and a man named Casteneda. Plaintiff asserted such exhibits were properly admissible as declarations against interest by witnesses who were unavailable for the trial here involved, and were declarations admitting criminal conduct and against their pecuniary interests. In one of such exhibits, Joaquin Contreras admitted that he used a 1972 Dodge motor home rented from a San Antonio dealership to transport Jesus Parra Casteneda, who entered the United States illegally on April 7, 1972, from San Antonio to Chicago, and that this motor home was involved in an accident near Paul’s Valley, Oklahoma.

Another exhibit consisted of the testimony of Jesus Parra Casteneda. He testified that he entered the United States illegally in April 1972, and that he escaped arrest during a raid by law enforcement officers at the Star Motel in San Antonio. He testified that he arranged with Contreras for his transport to Chicago and’paid Contreras for such services; the vehicle in which he started for Chicago was “a truck with a house;” the motor home was turned over in the state of Oklahoma; and, the motor home in which he was being transported had about twenty illegal aliens in it. Plaintiff introduced such evidence and does not complain of its admissibility on appeal.

The body shop manager of plaintiff testified as to the damages and cost of repair of the motor vehicle. He testified that he examined such vehicle after it had been returned and that it had been turned over and was in bad shape. He stated that he had made an estimate of the cost of repairs, which estimate was introduced as an exhibit, and that the amount of $8,221.67, shown in the exhibit as cost of labor and material and other items dealing with the repair of the vehicle, was the reasonable and customary charge in Bexar County for those types of repairs. He further testified that someone had built a fire in the back underneath one of the bunks which had caused damages to the motor home, but that he did not know specifically what amount was necessary to repair the damages done by the fire.

It is settled that where an insurer specifically pleads the exclusions set forth in the policy, the issue of coverage is raised, and the. insured has the burden of proving that his loss is not attributable to the pleaded excluded hazards. Travelers Indemnity Company v. McKillip, 469 S.W.2d 160 (Tex.1971); Texas Employers’ Insurance Association v. Jones, 393 S.W.2d 305 (Tex.1967); Sherman v. Provident American Insurance Co., 421 S.W.2d 652 (Tex.1967).

We have concluded that the judgment should be reversed and rendered for the following reasons: (1) As a matter of law, the policy in question excluded coverage for the loss. (2) There is an absence of fact findings necessary for a judgment for plaintiff. (3) As a matter of law, the loss occurred through collision or upset while the motor home was being used in an illicit trade or transportation. (4) There is no evidence to support the jury’s finding that Contreras obtained the motor home through theft by false pretext.

Under the pleadings and the record, it was incumbent upon plaintiff (1) to produce evidence and secure findings that the loss was covered by an insured peril; (2) to negative the exclusions contained in the policy as specifically plead by defendant.

To constitute theft by false pretext, it must be established that the property was obtained by false pretext with an intent on the part of the taker to deprive the owner of the value of the property and appropriate it to the use or benefit of the taker. It must be shown that such intent existed in the mind of the taker at the time he acquired possession of the property. An intent subsequently formed is insufficient. 55 Tex.Jur.2d, Theft § 1535-36 (1964).

There is no evidence in the record before us showing or tending to show that at the time the vehicle was delivered to Contreras he did not intend to return it to plaintiff according to the terms of the lease agreement. Consequently, there is no evidence that will support the jury’s finding of theft by false pretext.

Under the terms and provisions of the policy, any loss due to collision or upset was excluded if the loss occurred while the vehicle was being used in an illicit trade or transportation. This exclusion applied to various coverages, including theft.

The evidence not only failed to show that the exclusion was inapplicable, but it established conclusively that at the time of the collision the vehicle was being used for the illegal purpose of transporting aliens unlawfully present in this country. Under the clear terms and provisions of policy, ■ appel-lee was not entitled to recover. Appellee is entitled to a judgment as a matter of law.

Appellee’s motion for rehearing is overruled. Our previous opinion and judgment is withdrawn, and the judgment is reversed and here rendered that plaintiff, North Star Dodge, Inc., take nothing by its suit.

      . In Sherman v. Provident American Insurance Company, supra, the Court said:
      On the point of conflict as to the burden of proof, the Court of Civil Appeals . has correctly decided that the burden of proof was on the plaintiffs to negative the exclusions and limitations contained in the policy and pleaded as a defense by defendant’s answer.
      In Travelers Indemnity Co. v. McKillip, supra, the Court said:
      The insurance company pleaded the specific exclusion of loss by snowstorm set out in the policy. This pleaded exclusion thus raised the issue of coverage. The insureds had the burden to prove that their loss was not attributable to the pleaded excluded hazard. Sherman v. Provident American Ins. Co., 421 S.W.2d 652 (Tex.1967); Hardware Dealers Mut. Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.1962); Rule 94 T.R.C.P.
      Travelers having plead the exclusion under the policy of loss by snowstorm, the insureds were obligated to introduce evidence to prove and secure jury findings that the damage was caused solely by the windstorm, an insured peril; or segregating the damage caused by the insured peril from that caused by the snowstorm, an excluded peril. This construction of the exclusionary clause is well settled in Texas. Coyle v. Palatine Ins. Co., Tex.Com.App., 222 S.W. 973 (1920); Hardware Dealers Mut. Ins. Co. v. Berglund, supra; Paulson v. Fire Ins. Exchange, 393 S.W.2d 316 (Tex.1965).

      . It appears from appellee’s motion for rehearing and briefs that it does not rely on the collision or upset coverage provisions of the lease, but rather on the theft coverage provision.


source: Caselaw Access Project

author: STERNBERG, Justice.

license: Public Domain

text:
    George R. WAGONER, Acting Commissioner, Department of Labor, etc., Appellant, v. Edwin CANSLER et al., Appellees. George R. WAGONER, Acting Commissioner, Department of Labor, etc., Appellant, v. Earl RENSHAW et al., Appellees. George R. WAGONER, Acting Commissioner, Department of Labor, etc., Appellant, v. Lawson SMITH et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 1, 1976.
    Earl M. Cornett, Gen. Counsel, Dept, of Labor, Frankfort, Cyril E. Shadowen, Dept, of Labor, Louisville, for appellant.
    Leland Monhollon, Ronald K. Bruce, Thomas Mitchell, Madisonville, J. Craig Riddle, Jr. (Agent for Island Creek Coal Co., appellee), Madisonville, for appellees.
   STERNBERG, Justice.

These appeals are the aftermath of workmen’s compensation litigation. Motions for appeal were granted, and the above-styled appeals were consolidated. The one and only issue is the same in each of these appeals, and we limit our consideration to the single question worded as follows in appellants’ brief:

“Whether an agency of the Commonwealth is required to pay the penalty prescribed by KRS 21.130.”

The Workmen’s Compensation Board awarded to each of the claimants a definite sum of money per week for a fixed period of time. The Special Fund appealed each case to the circuit court, and in each, case the award of the Board was affirmed. On appeals to this court the judgments of the circuit courts were affirmed. Upon a return of the cases to the circuit courts from whence they came, each claimant made a motion for judgment against the Special Fund for 10% of the original award of the Workmen’s Compensation Board. The Special Fund denied liability on the basis of sovereign immunity. With this argument the trial court did not agree, and neither do we. In each case the circuit court entered judgment against the Special Fund; hence, these appeals.

Appellants’ argument may be summarized as follows:

The Special Fund is a division of the Department of Labor and, as such, is an instrumentality of the Commonwealth of Kentucky and, by reason of sovereign immunity, is exempt from the penalty provisions of KRS 21.130.

In Commonwealth, Dept. of Highways v. Frank Fehr Brewing Company, Ky., 376 S.W.2d 541 (1964), this court wrote:

“Appellee’s brief having raised the question of whether it is entitled to 10% damages on $18,300, the amount of its recovery remaining unpaid pending the appeal, we hold that it is. KRS 21.130; CR 81A.”

In Commonwealth, Dept. of Highways v. Whipple, Ky., 392 S.W.2d 81 (1965), this court said:

“Question has been raised again whether the Commonwealth is required to pay 10% damages on the amount the circuit court judgment exceeds the county court judgment. We held in Commonwealth, Department of Highways v. Frank Fehr Brewing Co., Ky., 376 S.W.2d 541, that it must. CR 81A is not repugnant to KRS 454.190. The fact the Commonwealth is not required to execute a bond does not exempt it from liability for payment of damages as provided in KRS 21.130.”

It is altogether too clear to warrant equivocation that the Special Fund is obligated to the same extent as if it had given the bond.

The judgment is affirmed.

All concur.

      . KRS 21.130 was repealed at the regular 1976 session of the General Assembly. (SB 162, C 67, § 14; SB 160, C 59, § 3.)


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Hurst JOHN, Plaintiff-Appellant-Respondent, v. Howard TURNER et al., Defendants-Appellants.
    Nos. KCD 27229, KCD 27373.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.

      Warren D. Welliver and William A. Atkinson, Welliver & Simon, Columbia, for appellants Carl H. Almond and Nancy G. Almond.
    J. Turner Jones, George D. Nichols, Jones, Knight & Ford, Columbia, for appellant-respondent Hurst John.
    Milt Harper, Columbia, for respondent Boone County.
    Before TURNAGE, P. J., and WEL-BORN and Higgins, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by Hurst John to quiet title to 80 acres of real estate, encompassing tracts designated in evidence as “Tract A” and “Tract B.” Title was quieted in favor of plaintiff against all defendants except to Tract A which was quieted in the County Court of Boone County. Appeal (27,229) by Hurst John from that part of the judgment quieting title to Tract A in the county court, combined with appeal (27,323) by Carl and Nancy Almond from that part of the judgment denying their claim of title to Tract B. Title to the 80 acres is not otherwise in dispute. In 27,229 the questions are whether the court erred in denying Hurst John’s claim of title to Tract A by adverse possession; whether the county court acquired any interest in Tract A; if so, whether such interest was abandoned; whether the decree affecting Tract A is void for vagueness and beyond the pleadings; and whether the county court was estopped to claim any interest in Tract A. In 27,323 the question is whether the court erred in granting Hurst John’s claim of title to Tract B by adverse possession. Affirmed.

Plaintiff Hurst John alleged he was the owner of and sought to quiet the title in himself to certain land in Boone County:

Eighty (80) acres, the East half of the Northwest Quarter of Section 29, Township 47 North, Range 12 West.

Defendant County Court of Boone County alleged it was the owner of and sought to quiet title in itself to a portion of the 80 acres claimed by Hurst John, designated in evidence as “Tract A”:

One half (½) acre of ground lying North of the County road and on which Tumbling Spring is located which land is situated in the Southeast corner of the Northwest Quarter of Section 29, Township 47 North, Range 12 West.

Defendants Almond alleged they were the owners of and sought to quiet title in themselves to a portion of the 80 acres claimed by Hurst John, designated in evidence as “Tract B”:

All that portion of the Northeast Quarter of the Northwest Quarter of Section Twenty-nine (29); Township Forty-seven (47) and Range Twelve (12) lying North and West of a certain creek in a Southwesterly direction through said Northeast Quarter of said Northwest Quarter of said Section 29.

Prior to February 15,1893, Howard Turner was the owner of certain land in Boone County:

Forty acres, the Northeast Quarter of the Northwest Quarter of Section Twenty-nine all in Township Forty-seven (47) Range Twelve (12).

Mr. Turner’s 40 acres comprises the north half of the 80 acres claimed by Hurst John and encompasses Tract A. On February 15, 1893, Howard Turner and Mary Louise Turner, his wife, conveyed by warranty deed to Henry Turner, “party of the second part”:

Forty acres more or less the Northeast Quarter of the Northwest Quarter of Section Twenty-nine, Township Forty-seven (47) and Range Twelve (12) except what is hereinafter reserved viz: One half of one acre more or less of said above described premises situated in the Southeast corner thereof and includes and takes in a certain large spring situated at said point and will at all times keep and maintain a good and substantial fence one half way around said spring and the said party of the second part hereby binds himself and assigns forever to keep and maintain a good and substantial fence around the other half of said spring.

On January 5, 1937, title to the entire 80 acres was quieted in O. R. Johnson against Martha Turner and others; Howard Turner was not a party to the action.

On March 11, 1940, O. R. Johnson and Ruth P. Johnson, his wife, by warranty deed to Hurst John conveyed the 80 acres, “Reserving the right of ingress and egress to a spring located in the north part of said tract as originally reserved in a deed from Howard Turner and Mary Louise Turner, his wife, to Henry Turner, dated February 10, 1893.” The quoted reservation was also made by Mr. John in his deed of trust of the same date.

On March 11, 1941, Howard Turner executed a will which provided for a life estate in his wife, Mary Louise Turner, and certain remainders, one of which provided:

I give and bequeath One Half (½) acre of Ground lying North of the County Road and on which Tumbling Spring is located to the County Court of Boone County, in trust and never to be sold and to be used by the Public under the County Court’s supervision.

On September 28, 1945, Howard Turner died. His will was admitted to probate. An “Inventory, Appraisements and Affidavits” was filed by the administrator with will annexed, which included certain real estate, none of which is in question in this suit. Mary Louise Turner died January 11, 1946.

Murry E. Glascock, County Clerk of Boone County, searched records of the county court from 1944 to 1951 and found no acceptance or rejection of a devise of land from Howard Turner, no resolution pertaining to the spring, and no records indicating supervision or dominion over Tumbling Spring.

With respect to Tract A, plaintiff testified: After he purchased the 80 acres in 1940, the old county road which ran across the 80 acres in a southeasterly-northwesterly direction was not traveled by the public, and he secured permission from the county court to place signs at each end advising the road was not passable. There was also a private road from the county road to the spring area. In 1949 he corresponded with James A. Turner, son of Howard and Mary Louise Turner, to suggest that a bronze plaque be placed near the spring as a memorial to Mr. and Mrs. Turner. The letter described the suggested memorial, stated the need of pictures, and concluded, “Then I would give this to the County Court for consideration.” In taking title to the 80 acres, he knew of the reservation of the spring and, in 1949, he was aware of Howard Turner’s devise to the county court of the spring and surrounding one-half acre. Between 1949 and 1953, he asked the county court about its intentions with respect to the spring property, after which he commenced certain improvements. In 1953 he took care of the spring property; the county court had done nothing about it. He cleared the spring area of underbrush and trash. He fenced the “toasters,” a pair of deep vertical slots in the ground, each 30 to 40 feet long, 4 to 5 feet wide, about 6 feet apart, between which the spring could be observed, and did other fencing in 1953. He leased the 80 acres to Jim Cunningham for farming in the early years, Mr. Tusler for pasture in 1953, and to the Peace Corps as a training site in the early 1960’s. He grazed the land in other years prior to 1953 and since 1953, except for the lease to the Peace Corps. .In 1954, he had the valley area surveyed in preparation for plans to utilize the spring water for diversion into commercial fish ponds. In that year he built a pond or “lake” some seventy-fiye feet below the outlet of the spring. A gate was put across the county road at his property line on the east with a “no trespassing” sign on it. About a hundred similar signs were placed elsewhere on the farm. He did not allow anyone to use the property without his permission. In the late 1950’s he cut timber off the spring area two or three times. During the 1950’s the public did not come to the area, and he and his family used it for picnics and recreation, which included horseback riding. In 1968 he built a cabin near the spring which his son used during summer months. In 1965 or 1966 he removed ten loads of rock from the “spring proper,” which was to reduce contamination and permit the spring to run cleaner. He found barbed wire on two trees which indicated an old fence at a point along the private road between the spring outlet and the “toaster.” The timber cut in the spring area was above the toaster, 150 feet from the spring outlet. Plaintiff paid all taxes assessed against the 80 acres following his acquisition of the property. Where the water comes out from solid rock is in the toaster; surface water draining into the toaster then combines with spring water and flows through a rock bridge to the spring outlet, where water is accessible to people.

On April 8, 1936, Russell E. Holloway took title to Tract B. The decree of January 5, 1937, quieted title to the entire 80 acres, including Tract B, in O. R. Johnson. Mr. Holloway was not a party to the suit, and there is no evidence that he ever conveyed Tract B. Mr. Holloway died testate February 22, 1963, and there is no evidence of disposition by his will of Tract B.

On October 31, 1968, Carl and Nancy Almond acquired from William Brynjulfson and Pearl E. Brynjulfson, husband and wife, various tracts lying north of Tract B.

On February 4, 1972, Mr. and Mrs. Almond received a quitclaim deed to Tract B from Geraldine Shobe Holloway; there is no evidence that she ever acquired any interest in Tract B from Russell Holloway.

William Brynjulfson was “pretty much” familiar with Tract B. A fence running east and west between his lands to the north of Tract B and Tract B was “pretty presentable” as early as 1956 or 1957, and there was no access from his property to Tract B because there was no gate or gap in the fence. He never claimed Tract B as a part of the farm now owned by Mr. and Mrs. Almond by virtue of his deed to them October 31, 1968. Mr. Brynjulfson farmed the land with Mr. John for a number of years; he knew of no use made of Tract B by Mr. John during the time he owned the adjacent lands. He had never seen animals grazing Tract B other than his own.

With respect to Tract B, plaintiff testified: After he purchased the 80 acres in 1940, no one protested his use of Tract B or made claim to it. He had ridden horses over all of it. There is a fence along the north boundary of the 80 acres separating it from land on the north owned by Mr. and Mrs. Almond. It had been repaired by Peak and Dodd who owned the property to the north of the 80 acres prior to 1956 when they sold it to Mr. Brynjulfson. The taxes which he paid on the 80 acres were on bills which did not show Tract B taxed separately. He cut timber off Tract B on two or three occasions prior to 1960, and grazed animals on his entire ownership including Tract B.

James Turner, son of Howard Turner, was present in 1940 when Hurst John offered his father, Howard Turner, $50 for the spring in issue. His father did not sell. Plaintiff denied he made the offer of purchase. Mr. Turner understood the exception and reservation of the spring in the deed of February 15, 1893, as the result of an agreement between Howard Turner and Henry Turner by which Howard “would get half an acre around the spring, so he could always go get water for the stock and for his own use.” His father claimed ownership of the spring and one-half acre surrounding it until his death. His father went to the spring and spent time there. Others had used the spring during the life of Howard Turner. He visited the spring September 29, 1945, the day after his father’s death, and found the hillside around the spring clear of trees except for sprouts and two large trees. Herb Gilpin had cleared the hillside. The old county road was open and passable. The spring is where “you can walk up into this cave a bit and dip your water out.” He referred to the “toaster” as “some holes up there in the branch.”

The court’s findings in resolution of the issues raised by the foregoing are contained in the court’s “Memorandum Decision”:

“ * * * With reference to Tract ‘A’ which is the tract containing Tumblin Springs, the 1893 deed from Howard Turner to Henry Turner conveyed certain real property which subsequently by Warranty Deed passed into the hands of Plaintiff. The sole question presented is whether either as a result of that Deed or as a result of Howard Turner’s Will, a one-half acre tract was reserved to Boone County, there being no claim by any other person to title to this property by adverse possession.

“In the Deed from Howard Turner to Henry Turner, certain real estate was conveyed ‘ * * * except what is hereinafter reserved, one-half of one acre, more or less, of said above described premises situated in the South East corner thereof and includes and takes in a certain large spring situated at said point * * *.’ Likewise, in the Last Will and Testament of Howard Turner which was executed on the 11th day of March, 1941, and which was probated in October 1945, Mr. Turner again makes reference to the spring as follows:

“ T give and bequeath one-half (½) acre of ground lying North of the County Road and on which Tumblin Spring is located to the County Court of Boone County, in trust and never to be sold, and' to be used by the public under the County Court’s supervision.’

“ * * * in the Deed from Plaintiff’s predecessor in title, 0. R. Johnson, to Plaintiff * * *, there is again a reference to the spring as follows:

“ ‘ * * * Reserving the right of ingress and egress to a spring located in the North part of said tract as originally reserved in a Deed from Howard Turner and Mary Louise Turner, his wife, to Henry Turner, dated February 10, 1893.’

“The Plaintiff by trustee deed executed in 1940 likewise makes reference to the spring and the reservation of right to ingress and egress.

“ * * * there was * * * a letter from the Plaintiff to Howard Turner’s son, Jim A. Turner, making reference to a monument to be erected in memory of Howard Turner at the spring.

“It was clearly the intention of Howard Turner to reserve both, by the warranty deed in 1893, the spring and the ground surrounding same and subsequently by his Will to convey same to the County Court of Boone County. Accordingly, the Court holds and finds that Plaintiff’s predecessor in title, Howard Turner, reserved one-half acre on which was located Tumblin Springs and later bequeathed same to the County Court of Boone County to be held in trust as a public place.

“As to that portion of the real estate * * * described as Tract ‘B’, the Court finds from the evidence presented that Defendants Almond have failed to show record title vested in them. The evidence on this point shows conveyances to one Russell Holloway, singularly, Application for Letters Testamentary, and a quitclaim deed from Geraldine Holloway to these Defendants. The record is silent, however, as to the interest, if any, which Geraldine Holloway had in said real estate.

“ * * * as to title by adverse possession * * * it appears that Plaintiff has:

“1. Paid all taxes on the property in question since 1940.
“2. Cut timber on the property from time to time.
“3. That cattle and horses were permitted to graze on the property by Plaintiff.

“It is also noteworthy that Plaintiff’s predecessor in title, O. R. Johnson, maintained a successful suit to quiet title to said real estate, and that while Russell Holloway who was at that time the apparent record holder of said real estate was not joined in same, and hence the action was lacking to quiet title against Holloway, certainly same was indicative to all others of Plaintiff’s predecessor in title intent to claim against the world this particular tract.

“Accordingly, it is found that Defendants Almond do not have record title and that title by adverse possession is vested in Plaintiff to that portion described as Tract ‘B.’

“As to the problem of attempting to give legal effect to Mr. Turner’s intention, and whether judicially one can construct a legal description as to this one-half acre with sufficient clarity and understanding that same can readily be ascertained. The Court holds that same can be accomplished and hence orders title quieted to real estate described in Plaintiff’s Petition in favor of Plaintiff,

“Except that which is hereinafter reserved to the County of Boone in trust as a public place which is described as follows: Starting at the center of a certain spring known as ‘Tumblin Spring’ thence North 73.79 feet to the point of beginning, thence East 73.79 feet, thence South 147.58 feet, thence West 147.58 feet [thence North 147.58 feet, thence East 73.79 feet] to the point of beginning, containing in all one-half acre, more or less, together with right of ingress and egress to same from a certain county road located lying South of said spring.”

Judgment was entered accordingly:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the Plaintiff is vested with the fee simple absolute title in and to the following described real estate situated in Boone County, Missouri, to-wit:

“Eighty (80) acres, the East half of the Northwest Quarter of Section 29, Township 47 North, Range 12 West, EXCEPT the following property: Starting at the center of a certain spring known as ‘Tumblin Spring’, thence North 73.79 feet to the point of beginning, thence East 73.79 feet, thence South 147.58 feet, thence West 147.58 feet, thence North 147.58 feet, thence East 73.79 feet to the point of beginning, containing in all one-half acre, more or less, together with right of ingress and egress to same from a certain county road located lying south of said spring.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant County Court of Boone County, Missouri, is vested with fee simple title, In Trust, as a public place, to the following portion of the East half of the Northwest Quarter of Section 29, Township 47 North, Range 12 West, Boone County, Missouri, described as follows, to-wit:

“Starting at the center of a certain spring known as ‘Tumblin Spring’, thence North 73.79 feet to the point of beginning, thence East 73.79 feet, thence South 147.58 feet, thence West 147.58 feet, thence North 147.58 feet, thence East 73.-79 feet to the point of beginning, containing in all one-half acre, more or less, together with right of ingress and egress to same from a certain county road located lying South of said spring.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all other Defendants have no right, title or interest in and to the aforesaid real estate.”

Appellant John contends the court erred (I)in quieting title to Tract A in the County Court of Boone County, asserting the evidence established title to said tract in him by adverse possession. He argues that the evidence shows that his possession of Tract A was hostile, actual, open and notorious, exclusive, and continuous for a period of ten years prior to commencement of his action to perfect title. See Section 516.010, RSMo 1969; Wykle v. Colombo, 457 S.W.2d 695, 700 (Mo.1970). In anticipation of reliance by the county court on Section 516.-090, RSMo 1969, which provides that “[njothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state,” he argues also that the use of land within the provisions of Section 516.090 may be and was abandoned and, in such case, the statute no longer provides protection from adverse possession. See Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193 (1945).

Appellant John contends the court erred (II) with respect to Tract A, asserting that the county court acquired no interest in Tract A under the will of Howard Turner. He argues (A) that Howard Turner had no interest to will to the county court because he deeded the 40 acres which included Tract A to Henry Turner. The attempted exception and reservation was void due to insufficient and uncertain description, and should be construed against the grantor (Howard) and in favor of the grantee. See State v. Jacob, 362 Mo. 781, 244 S.W.2d 7, 9[2] (1951); 23 Am.Jur.2d, Deeds § 264; 26 C.J.S. Deeds § 140. He argues (B) that even if Howard Turner owned Tract A at his death, his will was insufficient to devise any interest in Tract A to the county court, again because the description is insufficient to permit a determination of the trust property. See 26 C.J.S. Deeds § 30; Edgar v. Fitzpatrick, 377 S.W.2d 314, 317 (Mo. banc 1964). He argues (C) that even if the county court satisfies his arguments (A) and (B), no interest in Tract A was acquired by the county court because there was no acceptance; and acceptance may not be presumed because this gift imposed a burden on the county court. See Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424, 427 (1941).

Appellant John contends the court erred (III) with respect to Tract A, asserting that even if the county court acquired and accepted some interest in Tract A under the will of Howard Turner, any such interest had been abandoned prior to the action. He argues that such abandonment is shown by taxes paid on the entire 80 acres and improvements to the spring area which he made following a' visit with the county court to determine its intentions, and thus, that the fact question of abandonment should have been resolved in his favor. See Anson v. Tietze, supra; Gibson v. Sharp, 277 S.W.2d 672 (Mo.App.1955).

Appellant John contends the court erred (IV) with respect to Tract A asserting that even if the court was correct in finding some interest in Tract A in the county court, the decree to that effect is void because (A) it is so vague and indefinite as to be impossible of ascertainment and unsupported by evidence; and (B) it goes beyond and is inconsistent with the pleadings and issues. See Brotherton v. City of Jackson, 385 S.W.2d 836 (Mo.App.1965).

Finally, appellant John contends the court erred (V) with respect to Tract A because the county court was estopped to claim any ownership in Tract A. He argues this is shown by the county court’s inaction while watching and permitting him to expend money and effort to improve the spring area.

The difficulty of appellant John under (I) and (II) is that the evidence is insufficient to establish his claimed adverse possession of Tract A. It is thus not necessary to discuss application of Section 516.090.

Hurst John entered possession of the entire 80 acres which encompassed Tract A under the deed of March 11, 1940, from 0. R. and Ruth P. Johnson. That deed reserved, as acknowledged by Mr. John, the right of ingress and egress to the spring and the spring tract, all as originally reserved in the deed of February 10, 1893, from Howard and Mary Louise Turner to Henry Turner. The Turner deed, in expressing the original reservation, excepted from the conveyance and reserved one-half acre of ground and the spring within it. Both sides of the Turner conveyance were to maintain one half of the fence around the spring, and Mr. John found remnants of old fencing at the spring. Mr. John recognized Tract A as something apart from the entire 80 acres by references such as a private road from the county road to the spring area, the spring itself, the spring area, the spring property, etc. He acknowledged, as he must, the exceptions and reservations affecting such property in his title, and he further acknowledged the Turner reservation by his attempt to purchase the spring property. He acknowledged the devise of the spring property by Howard Turner to the county in his correspondence with James Turner. He further acknowledged the devise of the spring property to the county court and the court’s acceptance of the devise by his visits to that body seeking permission to erect signs advising of the condition of the county road and seeking information as to the court’s intention with respect to its property. Such acknowledgment preceded any improvements that he made, and they were modest and for his enjoyment. The timing of such improvements indicates they were made with permission, actual or tacit, from the court. In at least one instance, a road barricade, he told the court what he was doing “and they had no objections.”

The foregoing circumstances show that Mr. John recognized Tract A as an identifiable piece of property within his 80 acres; that he recognized his lack of title to it; and that he recognized the county court’s title to it by the devise from Howard Turner. There is no evidence to show that the devise placed a burden on the court in rebuttal of presumed acceptance of the gift. Sanders v. Jones, supra. Possession of land in recognition of a lack of title is insufficient to ripen into title by adverse possession. Riebold v. Smith, 150 S.W.2d 599, 602-603[5] (Mo.App.1941); Gates v. Roberts, 350 S.W.2d 729, 732 (Mo.1961). Such circumstances also indicate that Mr. John’s possession and use of Tract A were permissive, and permissive possession is inimical to adverse possession. Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). Hostile possession, Wykle v. Colombo, supra, is thus lacking in Mr. John’s claim, and when any element of adverse possession is lacking, no title by adverse possession can ripen. Eaton v. Curtis, 319 Mo. 660, 4 S.W.2d 819, 822 (1928).

The difficulty of appellant John under (III) and (V) is that abandonment and estoppel are questions of fact, and he has failed to meet his burden of proving his assertion that the county court abandoned, or is estopped to claim, the interest it acquired in Tract A under the will of Howard Turner, Anson v. Tietze, supra, 190 S.W.2d 1. c. 196. His payment of taxes assessed against his interest in the 80 acres is not relevant to the asserted abandonment. Payment of taxes alone is insufficient to raise an estoppel. Kunkel v. Griffith, 325 Mo. 392, 29 S.W.2d 64 (1930). He would be liable for his taxes in any event. Neither do his improvements of the spring tract show the asserted abandonment and estop-pel. The court did not stand by and let Mr. John improve its property; any improvements were made only after consultation with the court and seemingly with permission of the court. Such circumstances are inconsistent with abandonment and estop-pel. The grant itself was in trust, “never to be sold and to be used by the public under the court’s supervision.” There is no indication of a sale, public use of the tract was shown to be the same before and after the devise, and permitting Mr. John to use the tract implies some supervision. It is true that the court has not commenced development of the area as a “park,” as asserted by appellant, but the grant does not require the court to develop a park to avoid an abandonment.

The difficulty of appellant John under (IY) is that everyone who dealt with Tract A from Howard Turner to the present owner, including Mr. John, is shown to know Mr. Turner’s intention and to know and be able to identify the one-half acre north of the county road in the northeast quarter of the northwest quarter of Section 29, Township 47, Range 12, upon which Tumbling Spring is located. It was appropriate to receive testimony to aid resolution of the description of the grant to the county court. Ashauer v. Peer, 147 S.W.2d 144 (Mo.App.1941). The intent and purpose of the original reservation in the 1893 deed was to provide a half acre around the spring so that Howard Turner could always get water for stock and for his use. This would require access to a spring outlet which rules out any concern for the “toaster” area or underground waterways; and Mr. John stated that the toaster and the spring were 150 feet apart. He also recognized a “main spring.” The court’s description uses the spring as a natural monument, and, by metes and bounds, describes a one-half acre square tract to enclose it, with access from the county road to the south. The fence remnants in the area so enclosed also provide some evidence in support of the boundaries chosen by the court; and Mr. John noted existence of a private road from the county road to the spring area. The original exception and reservation included ingress and egress, and the intent of the devise to the county appears to be that of giving the county the trust of all that Howard Turner excepted and reserved with respect to the spring. This comports with rules governing interpretation of legal descriptions, e.g., Treatise on Real Property Law in Missouri, Gill, Vol. II, pp. 714-715:

“The first rule is that if there is enough description to show the intention, the errors, no matter of what nature, will simply be disregarded and the intention given effect.
“The second rule is that if it is not possible to determine the intention from a reading of the description, the court will consider the ‘elements’ of the description and will give priority to them according to the probability of accuracy in view of the experience of courts in dealing with similar descriptions.
“These elements of a description fall into three classes: 1. Monuments. 2. Distances. 3. Area. In case of a conflict, these elements will govern in the stated order of priority. * * *
“Monuments are either natural or artificial. Natural monuments include rivers, creeks, trees and other natural objects. * * * In ease of a conflict, natural monuments will govern over artificial monuments.”

In the last sense, the spring, “Tumblin Spring,” a natural monument, governs over the erroneous area designation, “in the Southeast corner thereof,” (in the Turner deed of 1893), an artificial monument. For similar applications, see Riggs v. Myers, 20 Mo. 239 (1855), which involved land as described in Township 60 “with the privilege of using the water of the ‘Big Spring,’ having free access to and from it as he may wish.” Parol evidence showed that Big Spring was located in Township 59 and that the grantor owned no land in Township 60. The court voided that part of the description naming Township 60 and allowed a location of the land in Township 59 which encompassed Big Spring.

Appellants Almond contend the court erred in quieting title to Tract B in Hurst John, asserting there was no evidence to show that Mr. John had actual possession of Tract B or that his possession was actual and continuous.

The difficulty of appellants Almond is that they showed at most color of title. They failed to show record title in themselves. Their claim arises from a quitclaim deed from Geraldine Shobe Holloway, and there is no evidence that she ever had an interest in the property. Their only witness on their claimed adverse possession, Mr. Brynjulfson, testified only with respect to acts of possession of Tract B by Mr. John. They presented no evidence of acts of possession by themselves or by their predecessor, Mr. Brynjulfson; and Mr. Brynjulfson never claimed any interest in Tract B during his ownership of the Almond farm to the north which he conveyed to them in 1968.

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Thomas Lee Richard HARDWICK, Appellant, v. ISC INDUSTRIES, INC. and Hardwick Manufacturing Company, Inc., Respondents.
    No. KCD 27304.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Clyde G. Meise, Kansas City, for appellant.
    Martin J. Purcell, P. John Owen, Kenneth S. Starkey, Jr., Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for breach of contract. After jury had returned verdict in favor of plaintiff for $91,667, the trial court sustained defendants’ motion for judgment and entered judgment for defendants. Plaintiff appealed.

Appellant Thomas Lee Richard Hard-wick, Ray Sims and Frozen Food Express Company were the holders of all of the stock of Hardwick Manufacturing Company. The company was incorporated in 1965 and engaged in the manufacture of heavy duty, off-highway hauling equipment.

In 1969, negotiations began between Hardwick and Gene L. Olson of ISC Industries, Inc., for the acquisition by ISC of 'Hardwick Manufacturing. On February 24, 1969, an Agreement for Exchange of Stock was entered into between Hardwick, Sims and Frozen Food (“Shareholders”) and ISC (“Industries”). Paragraph 1 of the Agreement read:

“1. Industries agrees to offer to Shareholders in exchange for said 1,350 shares of common stock of Hardwick, 48,214 shares of common stock which is voting stock, and Shareholders agree to exchange their 1,350 shares of no par common stock of Hardwick to Industries on or before April 15, 1969. The basis of exchange for each Shareholder is set out as follows:

"Shareholder Hardwick Industries
Thomas Lee Richard Hardwick 676 shares 24,143 shares
Ray Sims 224 8,000
Frozen Food Express, Inc. 450 16,071

Paragraph 2 dealt with patents owned by Hardwick Manufacturing (“Hardwick”). Paragraph 3 read:

“3. Industries agrees that concurrently with the exchange of stock, Hardwick will enter into an employment contract employing Thomas Lee Richard Hardwick for a period of five (5) years for an annual salary of Twenty-five Thousand Dollars ($25,-000.00). The terms and covenants of such contract shall then be acceptable to Thomas Lee Richard Hardwick, Industries and their respective counsel.”

The agreement and an addendum contained other provisions, none of which is here involved.

On April 24, 1969, the exchange of stock was completed. The contract of employment had not been prepared at that time and Olson told Hardwick that it would be submitted later. Some three or four weeks later, Olson presented Hardwick with a draft of a contract by the terms of which Hardwick would be employed as president of Hardwick Manufacturing for five years at an annual salary of $25,000.00. Hard-wick refused to sign the contract. According to Hardwick, his refusal was based upon the absence from the contract of matters agreed upon between himself and Olson in the course of the negotiations. He specifically objected to a provision that the agreement should terminate in the event of Hardwick’s death. According to Olson, Hardwick told him that he did not sign the contract because he didn’t know whether or not he wanted to stay with ISC.

Hardwick acted as president and chief operating officer of Hardwick Manufacturing at a $25,000 per year salary until July 31, 1970, when he received notice that his employment was terminated. He filed this action, claiming that ISC had breached Paragraph 3 of the Agreement for Exchange of Stock and asked damages of $91,-667, the amount which he would have received as salary had his employment continued for five years at $25,000 per year. His petition also contained a count for fraud, but at the trial his tendered instruction on this theory was rejected by the trial court and appellant does not now question that action.

At the trial Hardwick testified (without objection) that he was to receive for his Hardwick Manufacturing stock “twenty-five thousand per year for the next five years. I was also to receive 24,143 shares of stock.” Later, when Hardwick was asked about the pre-contract negotiations with Olson, counsel for defendants objected on the grounds of the parol evidence rule. Defendants’ counsel stated that he wished to offer the testimony in support of the fraud count. The trial court stated: “Well, I’m going to permit it for that limited purpose with the understanding that it only goes to the legal interpretation to be applied to Paragraph 3 of the contract.”

Hardwiek then testified:

“Well, of course, the main thing [Olson represented] was the original contract and exchange of the stock, numbers of shares of stock, and the $125,000 for the five years, and in addition to those two things, there were certain insurance policies to be added to the ones that were in existence that we had. Like we had a group insurance policy before they took over and that was suppos-. ed to have been added to it. And then there were supposed to be fringe benefits, depending upon the progress of the company, as to how it would progress. The one hundred twenty-five thousand was very definitely agreed, that in case of my death, that this was to be paid, it was to be paid whether I was alive or dead, and that that was one of my definite agreements with Mr. Olson so that my wife would have that one hundred twenty-five thousand for the next five years. That was a very definite part of the program.”

On cross-examination he stated that he took the position that he was entitled to receive $125,000 whether or not he worked a single day as president of Hardwick Manufacturing.

Olson, testifying for the defendants, stated that Hardwick never discussed the terms of the proposed employment contract with him and that he gave as his reason for not signing it that he did not know whether or not he wanted to stay with ISC. Olson stated that he never told Hardwick that he would be entitled to $25,000 per year for five years whether he worked or not.

An officer of another ISC subsidiary testified that Hardwick told him that he didn’t sign the employment contract because he did not want to work as much as the agreement would have required.

After the jury had returned its verdict in favor of plaintiff, the trial court sustained defendants’ motion for judgment. In its memorandum, the trial court stated:

“On February 24, 1969, plaintiff and defendant ISC entered into an agreement for exchange of stock. In Paragraph 3 of that document is an agreement to enter into an employment contract.

“Plaintiff was represented by counsel at the time this ‘agreement’ was executed. As a matter of fact, his attorney witnessed the signing of the document.

“For the purpose of this motion, let it be assumed that defendant’s agents did make all the oral representations and agreements claimed by plaintiff, and that thereafter plaintiff executed the agreement of February 24, 1969, in its present terminology?:

“It is perfectly evident that the parties could easily have worded Paragraph 3 of the agreement to cover all of plaintiff’s assertions. Yet it remains that plaintiff executed the agreement supposedly embodying all of the terms of defendant’s representations to him, and now attempts to claim that the agreement which simply and clearly speaks of an employment contract states something else.

“There is no allegation by plaintiff nor any showing or inference that fraud was perpetrated by the defendant in the execution of the agreement. Thus, the only possible conclusion is that the written agreement contains the understandings and provisions of the parties’ prior arrangements.

“This Court does not believe that Paragraph 3 of the contract could, by any reasonable interpretation, state what the plaintiff claims.

“The terms are not ambiguous and no oral statements are required to explain any provisions. It obviously does not contain all fundamental and material terms to constitute an enforceable contract.

“Thus, the Court does not believe that under any circumstances could the jury return a verdict for the plaintiff that the Court could let stand. Accordingly, defendants’ motion for judgment is sustained and judgment is entered for the defendants, ISC Industries, Inc. and Hardwick Manufacturing Company, Inc.”

On this appeal, the contention of appellant is that the oral testimony showed that the employment of appellant for a five-year period at annual salary of $25,000 was a part of the consideration for the stock exchange and as such appellant’s right to such compensation was vested and that the oral testimony should have been considered by the trial court because its effect was to supply omissions and clarify ambiguities in the written contract.

The fundamental effect of the trial court’s ruling was to find that, regardless of the prior oral representations and negotiations as testified to by appellant, the written stock exchange agreement, executed by appellant in the presence of his attorney, superseded all previous negotiations and representations and that appellant was bound by the terms of that agreement which, insofar as his employment as president of Hardwick Manufacturing Company was concerned, provided merely that such a contract would be entered into in the future.

“When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate interpretation of that contract, evidence, whether parol or otherwise, of antecedent understanding and negotiations will not be admitted for the purpose of varying or contradicting the writing.” 3 Corbin on Contracts § 573, p. 357 (1960).

“Any contract, however made or evidence, can be discharged or modified by subsequent agreement of the parties. No contract whether written or oral can be varied, contradicted, or discharged by an antecedent agreement. Today may control the effect of what happened yesterday; but what happened yesterday cannot change the effect of what happens today.” Id., § 574, pp. 371-372.

In this case the trial court properly held that it would permit evidence of the negotiations leading up to the written agreement as an aid in the interpretation of the written agreement. However, since the written agreement of the parties was that the employment contract would be the subject of a future contract, the court correctly refused to permit the evidence of the prior negotiations to prove a contract contrary to the terms of the written agreement.

The trial court correctly found no basis for an interpretation of the written agreement which would encompass the terms which the success of appellant’s claim would require. The agreement made was to enter into a contract of employment in the future. Such an agreement is unenforceable and appellant does not contend otherwise. Jenks v. Jenks, 385 S.W.2d 370, 376 (Mo.App.1964).

Appellant’s primary reliance in this court is upon three recent cases in which the Supreme Court permitted oral evidence to establish terms and provisions omitted from written contracts. The first case is Modine Manufacturing Company v. Carlock, 510 S.W.2d 462 (Mo.1974). In that case the court found what a written franchise agreement failed to cover “several matters of importance which usually and customarily inhere in the relationship between manufacturers and their representatives.” 510 S.W.2d 467[5], The court held that oral testimony was admissible in order to evidence the complete agreement of the parties “as long as that evidence is not contradictory of, repugnant to or inconsistent with the terms of the writing.” 510 S.W.2d 467-468[6, 7]. That case cannot aid appellant because he seeks to provide thé terms of the employment contract on the basis of the earlier negotiations, in contradiction to the terms of his agreement that such terms will be the subject of a future agreement.

In the second ease, Garden Park Homes Corporation v. Martin Marietta Corporation, 507 S.W.2d 368 (Mo.1974), the claim of plaintiff to minimum royalty payments under a mining lease which omitted any reference to such payments was based upon oral representation coupled with a letter stating that such provision had been omitted from the written agreement for tax reasons. The court held that the written agreement would not preclude proof of the contemporaneous parol agreement to such effect inasmuch as such agreement would not have been “inherently in conflict” with the written agreement which, according to plaintiff’s allegation, was intentionally silent on the subject. Here to permit the oral evidence relied upon by appellant to establish the terms of the employment contract would be “inherently in conflict” with the terms of the written agreement that such terms were to be the subject of a future agreement.

The third case relied upon by appellant is Beuc v. Morrissey, 463 S.W.2d 851 (Mo. banc 1971). In that case the court held that the' silence of a written contract for architectural services as to the time for performance did not preclude extrinsic evidence of a prior oral agreement for completion of the work before a date certain. That case is an application of the rule which permits oral evidence of an express agreement to prevail over a presumption to which the law gives rise upon the silence of a written agreement. See 3 Corbin on Contracts § 593, p. 555 (1960). No such question is here presented.

The trial court correctly concluded that this was not a case in which provisions missing from a written agreement might be provided by parol evidence or in which there was an agreement with ambiguities requiring resolution by such means. It thus becomes the duty of the court to state the clear meaning of the agreement. Commerce Trust Company v. Howard, 429 S.W.2d 702, 705-706[1-3] (Mo.1968); Kalen v. Steele, 341 S.W.2d 343, 346[1-3] (Mo.App.1960). The trial court did so and its conclusion was not erroneous. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973); American Merchant Marine Ins. Co. v. Letton, 9 F.2d 799 (2d Cir. 1926).

Judgment affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    John Fredrick LOMAN, Appellant, v. Donald R. THARP et al., Respondents.
    No. KCD 27392.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.

      Charles C. Shafer, Jr., A. Howard Chamberlain, Kansas City, for appellant.
    William D. Lay, Platte City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Contending that he was a de facto marshal of the City of Platte City, appellant filed his first petition for declaratory judgment asking essentially for an adjudication of that status; that he was entitled to be removed as Marshal only pursuant to state laws; that his salary continue until such removal, and an allowance for attorney’s fees. By an “amended” petition appellant further asked for actual and punitive damages and attorney fees. The issues of the two petitions were consolidated, and respondents’ motion to dismiss each petition was sustained by the trial court for failure to state a cause of action.

Appellant’s contention is based upon these propositions as shown by the record and advanced in his brief: Platte City, being a city of the fourth class, was required by § 79.050, RSMo 1969, to have a city marshal who shall be elected for a term of two years unless the board of aldermen provide by ordinance, after approval of a majority of the voters voting at an election held for that purpose, for the appointment of a chief of police, who shall perform all of the duties required of the marshal by law. “If the board of aldermen does not provide for the appointment of a chief of police and collector as provided by this section, a city marshal and collector shall be elected, * * On March 5,1969, Ordinance No. 198 was passed by Platte City’s board of aldermen, properly submitting the issue of appointing a Chief of Police to a vote of the people, who approved it on April 1, 1969. At no time thereafter, however, did the board of aldermen provide an ordinance for the appointment of a Chief of Police as required by § 79.050. The Mayor, without ordinance authority, proceeded to and did appoint appellant to the post of Chief of Police. Appellant says that because § 79.-050 was not followed, the post occupied by him was an “elective” one as City Marshal (not an appointive one of Chief of Police). This reasoning by appellant is based upon the provisions of § 79.280, which paraphrased provides that if a vacancy occurs in an elective office, the mayor shall cause a special election to fill the vacancy, giving notice; provided, that if the vacancy occurs within six months of a general municipal election, no election shall be had, but the vacancy may be filled by the mayor by appointment. If the vacancy occurs in an office not elective, the mayor shall appoint a suitable person to fill it until the next regular meeting of the board of aldermen, at which time the vacancy shall be permanently filled.

As alleged by appellant, the time sequence of events was this: On April 1,1969, the voters of Platte City authorized the appointment of a Chief of Police. In September, 1971, Platte City’s Mayor appointed appellant to the position of Chief of Police. Appellant continued in that position until October, 1973, when he accidentally shot a man in the foot during the course of a scuffle and while the man was resisting arrest by appellant. On October 22, 1973, appellant was suspended by Mayor Tharp because of the shooting event. It is at this juncture that appellant contends that the suspension or removal was invalid because § 79.240 was not followed as to the removal of an “elective” officer. That section first provides that with the consent of a majority of the board of aldermen, the mayor, for good cause shown, may remove from office any elective officer of the city, first giving him an opportunity to be heard before the board of aldermen sitting as a board of impeachment. The second part of the section provides that the mayor may, with the consent of a majority of the board of aider-men, remove from office any appointive officer of the city at will. This second part does not provide for any opportunity to be heard, and although it is not specifically alleged, this second procedure apparently was applied to appellant on November 13, 1973, resulting in his removal from office. If appellant was indeed a de facto appointive Chief of Police, as respondents contend, his removal under the second part of § 79.-240 was in accordance with law, and the trial court was correct in dismissing the petitions. See State ex rel. Kendall v. Wilson, et al., 151 Mo.App. 719, 132 S.W. 623, 624, 625 (1910).

Appellant’s position is that the mayor’s appointment of him was void because of the gap or lack of an enabling ordinance authorizing the appointment of a chief of police after the people by vote had authorized that procedure in lieu of electing by popular vote a city marshal. Since the appointment was void, appellant says, his appointment was to the continuing vacancy of city marshal, and under § 79.240 only the procedure for removal of that elective office was applicable, the office of city marshal being an elective one unless the alternative procedures adopting the appointive office of chief of police under § 79.050 are followed. Thus, he says, he was a de facto city marshal, and not being validly removed from office, he continues to hold that office until his successor is elected.

The argument ignores the action of the people authorizing the appointment of a chief of police by Ordinance No. 198 on April 1, 1969. That ordinance changed the status of the law enforcement officer of Platte City from the elective city marshal to the appointive chief of police. It is not alleged that appellant was ever appointed as city marshal to fill a vacancy. Following appellant’s argument to its logical conclusion, he would have his appointment be termed “City Marshal” and have it relate back before the adoption by the people of Ordinance No. 198. The defect here is the absence of adoption of an ordinance authorizing the appointment of a chief of police by the mayor, and that defect occurred after the adoption by the people of Ordinance No. 198. It follows then that appellant was a de facto appointive officer, as contended by respondents, and his removal without an opportunity to be heard, i. e., at will, was proper. Appellant accepted and assumed to perform the duties of chief of police, not city marshal, under his express appointment by the mayor, although it may have been defective. As a matter of law, the trial court properly dismissed appellant’s petitions.

The judgment is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    WARD PARKWAY SHOPS, INC., Plaintiff-Respondent, v. C. S. W. CONSULTANTS, INC., Defendant, and Steven T. Schanzer, Defendant-Appellant.
    No. 27494.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.

      Slagle & Bernard, John J. Williams, III, Kansas City, for defendant-appellant.
    Terence M. O’Brien, Kansas City, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOP-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an action for Declaratory Judgment wherein the Ward Parkway Shops, Inc. (hereafter respondent), the lessor of business property to the defendant C. S. W. Consultants, Inc., a Missouri corporation (hereafter Consultants), lessee, seeks a declaration of rights, a money judgment for unpaid rent, and other equitable relief against Consultants and one Steven T. Schanzer, appellant (hereafter Schanzer), the sole stockholder of Consultants and its president. The evidence is undisputed as to the factual background giving rise to this action.

On the second day of February, 1968, the respondent, as lessor, entered into a written Office Lease with Consultants, as lessee, for space in a shopping center known as Ward Parkway Shopping Center, in Kansas City, Missouri for a term of five (5) years beginning February 15, 1968 and ending February 15, 1973, for an annual rental of $4,724.40, payable $393.70 per month, due the 1st day of each month during the term of the lease. The lessee was further obligated to pay all charges for electricity used in connection with the premises. This lease was executed by Schanzer as president, and one Covington, as vice president, of Consultants.

Consultants took possession of the leased premises and paid the rental called for under the lease through the month of September, 1968, but defaulted on the rental due on October 1,1968 and thereafter. Consultants vacated and abandoned the premises sometime in December, 1968. At that time, it owed the rent for October, November and December, 1968, and electric charges in the amount of $131.01. The record discloses that respondent, through its attorney, made demand for the rental due and advised Consultants’ attorney by letter that it would be held to the terms of the lease or suit would be filed thereon. An exchange of correspondence and telephone conversations ensued between counsel the latter part of December, 1968, and the first week of January, 1969, during which time counsel for respondent, upon request, furnished Consultants’ counsel a copy of the lease and was told in a letter dated January 7, 1969, from Consultants’ counsel, that his “client” was out of town but was expected back “the middle of next week”, at which time a conference would be held, and “I will be in contact with you in reference hereto shortly.” The next communication received by respondent’s counsel was a letter from Consultants’ counsel dated January 9,1969, enclosing a Notice of Filing of Articles of Dissolution by Consultants with the Secretary of State of Missouri on December 31, 1968. Such Articles of Dissolution were introduced in evidence below and disclose that they were executed on behalf of Consultants by Schanzer, as president, and notarized by counsel for Consultants on December 9, 1968. The Articles further disclose that Schanzer was “the only shareholder” of Consultants. Under date of January 9, 1969, Articles of Liquidation were executed and sworn to by Schanzer as president of Consultants, and notarized by Consultants’ counsel. It is interesting to note that this date was the same as the date counsel for Consultants had mailed a copy of the Notice of Filing Articles of Dissolution to respondent’s counsel and two days subsequent to the letter of January 7,1969.

The sworn Articles of Liquidation of January 9, 1969 included, as required by law, Section 351.475 RSMo 1969, the following affirmations by Schanzer:

“Article 3. All debts, obligations and liabilities of the corporation have been paid and discharged, or that adequate provision has been made therefor.
Article 4. All the remaining property and assets of the corporation have been distributed among its shareholders, in accordance with their respective rights and interests.”

Pursuant to such Articles of Liquidation, the Secretary of State of Missouri did on January 10, 1969, issue a Certificate of Dissolution of Consultants.

Nothing has been paid to respondent by Consultants or Schanzer upon the rental as provided under the lease since September of 1968. However, under date of January 22, 1969, counsel for respondent advised Consultants and Schanzer, by letter, that the lessor-respondent had elected to relet the premises under paragraph 5 of the lease upon the conditions as set forth therein, namely, that the lessee would be given credit against the total rentals due under the lease for the net returns from such reletting.

Mr. Roger Hunt, the manager for respondent, testified that as a result of such procedure the gross amount due his principal under the lease was $20,800.26 (including $131.01 in electric bills) less $9,048.47 proceeds from reletting over the term of the lease, leaving a balance due of $11,751.79.

As part of the plaintiffs (respondent’s) case, interrogatories propounded to Schan-zer and his answers thereto were offered and received as evidence. In summary, these answers disclosed: That Schanzer owned all of the capital stock of Consultants on December 30,1968; that he had no information as to the personal property or assets owned by Consultants or in which it had an interest on June 1, 1968, August 1, 1968, and December 30, 1968, or of any books, papers or other documents which would reflect such information either extant or previously destroyed, or otherwise disposed of, or the names and identification or nature of service performed by any accountant for Consultants; and, that plaintiff (respondent) had a better source of information than he as to the date on which Consultants occupied the leased premises or the date it vacated the premises. These answers were sworn to by Schanzer before his counsel acting as Notary Public.

Also as part of plaintiff’s (respondent^) case in the court below, it introduced its Request for Admissions directed to Schan-zer covering the basic facts, including the documentary evidence above described. In response to all of these, Schanzer filed his objection based upon the reason that:

“an answer to each and every request therein might incriminate defendant Schanzer.”

This objection was signed by counsel and not be Schanzer. The Request and Objections thereto were received in evidence in the trial below. No evidence was offered by either defendant.

At the close of all the evidence, the court below made findings of fact based upon the proof offered by plaintiff as above summarized and entered a judgment against Consultants and Schanzer, jointly and severally, in the amount of $11,751.79, with interest from date and for costs. Schanzer alone appealed.

Preliminary to a determination of the points raised by Schanzer on this appeal, it should be noted that the scope of review of this court-tried case has been recently defined in Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo.1976). This court reviews the whole record and will sustain the judgment below unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, or unless it erroneously applies the law.

One further general consideration requires notice. This is basically a declaratory judgment action seeking determination of rights and status and legal relations of the parties, and a further finding that under the lease and dissolution documents Consultants and Schanzer are liable to respondent for all unpaid rents and electric charges during the term, less credit for the net proceeds received by respondent from reletting the premises. In addition, the respondent sought a money judgment for such amount and for any additional equity relief necessary.

The respondent could properly seek coercive relief in addition to a declaration of rights, status and legal relations. Hudson v. Jones, 278 S.W.2d 799, 803-804[6, 7] (Mo.App.1955); City of Creve Coeur v. Creve Coeur Fire Protection District, 355 S.W.2d 857, 859[6, 7] (Mo.1962). That fact does not, however, destroy the basic character of this action.

Declaratory judgment actions have been defined as sui generis neither strictly legal nor equitable, but having an historical affinity in equity and governed by equitable principles. Gurniak v. Liszewski, 411 S.W.2d 84, 86[4] (Mo.1967); Gottlieb v. LaBrunerie, 514 S.W.2d 27, 31[2] (Mo.App.1974); C. S. v. J. W., 514 S.W.2d 848, 854[9] (Mo.App.1974).

Apparent from the record before this court there is no room for valid dispute as to any of the operative facts decisive of this appeal. Respondent’s theory below, implicit in the trial court’s findings and judgment, is that upon dissolution of Consultants a trust relationship was created between Schanzer and respondent, sometimes referred to in the law as a constructive trust of a trust ex malificio.

Schanzer’s first point on this appeal is that the court erred in granting a judgment against him personally, upon a “mere showing” that he was the sole stockholder in Consultants and caused such corporation to be dissolved and liquidated; that his personal liability as a stockholder, officer and director, is limited to such assets of the corporation as were delivered to him as a stockholder in liquidation; and, that the record does not establish that Consultants owned any assets or that any were delivered by or to Schanzer. While under the facts of this case, this position is at once ingenious and bold, it requires a review and application of firmly fixed corporate law concepts.

Of course, it is elemental that a corporation is purely a creature of law, a fictitious being created by the sovereign and existing under applicable laws and with specific powers and specific limitations. The granting of a corporate charter by Missouri (as in the case at bar) creates a contract between the state and the corporation directly affected by public interest. When the corporate charter is issued, there is written into it, by operation of law, the constitutional and statutory law of the state. 18 C.J.S. Corporations § 71, pp. 456, 458; 18 Am.Jur.2d, Section 81, p. 622; Midland Truck Lines, Inc. v. Atwood, 362 Mo. 397, 241 S.W.2d 903, 905[1] (1951); Shapiro v. Tropicana Lanes, Inc., 371 S.W.2d 237, 241[2] (Mo.1963); Pacific Intermountain Express v. Best Truck Lines, Inc., 518 S.W.2d 469, 472[3] (Mo.App.1974). The public interest which pervades the operation of a corporation, which owes its very existence to the public (sovereign state), has also been recognized in ancient (by Missouri standards) decisional law in Missouri Lead Mining & Smelting Co. v. Reinhard, 114 Mo. 218, 21 S.W. 488, 491 (Mo.1893), where the court said:

“ * * * It is a favorite doctrine with the courts of equity that the capital stock and other property of a corporation is to be deemed as between creditors and stockholders, a trust fund for the payment of the debts; * * * ” (Emphasis supplied)

This same trust philosophy has found expression in many later cases, as in Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425, 431[5, 6] (Mo.1968). Corporations are, of course, protected from too harsh or onerous application of this principle by the legal remedies of bankruptcy or court-controlled receivership.

But there is another area, involved here, which is afforded them, conditionally, under Missouri law, that of voluntary dissolution and liquidation, the course sought to be accomplished by Consultants. The statutory provisions pertinent here, and written into Consultants’ charter by operation of law, provide that a voluntary dissolution may be accomplished by various well-defined procedures. One such method is by means of a written consent signed by all the shareholders and the execution of Articles of Dissolution, verified by either the president or vice president, which must contain specified information. Section 351.460 RSMo 1969. Consultants’ Articles of Dissolution were in substantial compliance with this statute. Section 351.470 RSMo 1969, in pertinent part, provides that when the Articles of Dissolution are filed with the Secretary of State and found by him to be in conformity with the statute, the corporation shall cease to carry on its business and enter into a period of winding up or liquidation of such business. As a part of such process, Section 351.470 provides:

“3(2) The corporation shall proceed to collect its assets * * * pay, satisfy and discharge its liabilities and obligations * * * and, after paying or adequately providing for the payment of all its obligations, distribute the remainder of its assets * * * among its shareholders according to their respective rights and interests; * * * ”

Further, this statute provides that “its corporate existence shall continue until a certificate of dissolution has been issued by the secretary of state.” Section 351.470(2).

Section 351.475 RSMo 1969, provides in part:

“When all debts, liabilities and obligations of the corporation shall have been paid and discharged, or adequate provision shall have been made therefor, and all the remaining property and assets of the corporation shall have been distributed to the shareholders * * * ”

that Articles of Liquidation shall be executed and verified under oath by the president and contain and include the sworn statement of compliance with the above requirements. Upon receipt of such Articles of Liquidation, in conformity with law, the secretary of state issues his Certificate of Dissolution and the corporation thereupon ceases to do business.

As has been noted above, the Articles of Liquidation for Consultants was executed by Schanzer under date of January 9, 1969, containing the above-quoted statements under oath with reference to Consultants’ debts and distribution of assets, and pursuant thereto the Certificate of Dissolution was issued under date of January 10, 1969.

These Articles of Liquidation, therefore, disclose under oath that Consultants was possessed of assets to pay its creditors (including respondent) or make adequate provision therefor and additional assets to distribute to Schanzer, its sole shareholder. Otherwise, it would not' have been eligible for voluntary dissolution under the statutes above referred to.

Although upon this record such facts are properly considered as true, no part of the debt owing respondent has been paid and the assets necessary to do so are presumably in the possession of Schanzer or under his control. He thus becomes, by application of equitable principles, a trustee for the benefit of the respondent under a constructive trust. Lucas v. Central Missouri Trust Co., 350 Mo. 593, 166 S.W.2d 1053, 1056—1057[1] (1942); Service Life Insurance Company of Fort Worth v. Davis, 466 S.W.2d 190, 195—196[4] (Mo.App.1971) and cases cited therein.

A much quoted expression of the equitable principles of constructive trust is found in the case of Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378 (1919) wherein Cardozo, J., speaking for the court, stated, l.c. 122 N.E. 380-381[4, 5]:

“[4] * * * A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. * * *
[5] * * * A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief.”

See also: March v. Gerstenschlager, 436 S.W.2d 6, 8[2] (Mo.1969).

Neither is it necessary to establish actual fraud to uphold a constructive trust. The breach of the fiduciary relationship which Consultants and Schanzer, the sole stockholder and distributee of the assets, held toward the respondent-creditor was a constructive fraud sufficient to support the constructive trust and to prevent the unjust enrichment of Schanzer. Murphy v. Olds, 508 S.W.2d 249, 252[5-7] (Mo.App.1974); Swon v. Huddleston, 282 S.W.2d 18, 25[9] (Mo.1955).

A further valid reason why the position of Schanzer under his first point must be rejected under principles of equity, is that the lack of such proof was due to his evasive answers to interrogatories, his failure to account as trustee, his failure to testify or offer any proof at trial, and his invocation of his constitutional right against self-incrimination. These postures, in addition to his positive statutory affidavit filed with the Secretary of State to accomplish voluntary dissolution of Consultants, raise such strong presumptions and inferences as to impel thé findings and judgment in the court below.

What has been said also disposes of Schanzer’s second point on this appeal, which was that the court below erred in rendering judgment against him based upon the Articles of Liquidation which “contained untrue statements”; that there was no proof that such untrue statements directly and proximately caused respondent’s loss of the rentals and consequent damage, and that all elements of actual fraud were not established. Respondent concedes that the Articles of Liquidation did in fact contain the untrue statement that its debt had been paid and discharged or adequate provision made therefor. Its position is that the failure of Consultants and Schanzer to do so invoked the equitable doctrine of constructive trust, the very basis of its theory of recovery.

Additionally, it is noted that at no time, until the filing of his brief in this court, did Schanzer ever advance this specious argument. This court cannot (and will not) open the floodgates for fraud implicit in this argument by approving resort to the statutory procedures for voluntary dissolution in order to foreclose the rights of corporate creditors by. false swearing that all debts have been paid or adequate provision made therefor, and the conversion of corporate assets, impressed with a constructive trust, by distribution to the stockholders, who subsequently fail or refuse to make disclosure of the facts.

The judgment of the court below was based upon substantial evidence and no error of law appears.

The judgment is accordingly affirmed.

All concur.


author: GLENNON E. McFARLAND, Special Judge.

text:
    Josephine FISHMAN, Individually and as Administratrix with Will Annexed of the Estate of Toby B. Fishman, Deceased, Respondent, v. Edgar J. KEATING, Executor of the Estate of Toby B. Fishman, Deceased, et al., and Agnes Fishman, Appellants.
    No. KCD 27695.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.

      Donald E. Raymond, Kansas City, for appellants.
    Billy S. Sparks, George D. Blackwood, Jr., Kansas City (Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, of counsel), for respondent.
    Before PRITCHARD, C. J„ and ELLIOTT, CONNETT and McFARLAND, Special Judges.
   GLENNON E. McFARLAND, Special Judge.

This case involves the construction of the Last Will and Testament of Toby Fishman. The pertinent provisions of the will read as follows:

ARTICLE II

I give, devise and bequeath to my beloved wife, AGNES FISHMAN, my home at 2828 East Eleventh Street, Kansas City, Jackson County, Missouri, together with all household goods, furniture, furnishings and automobiles. In addition to the above bequest, I give, devise and bequeath to my beloved wife that portion of my estate which she would have received under the laws of the State of Missouri if I had died intestate.

ARTICLE III

I give and bequeath to my beloved cousin, TOBY FISHMAN, the sum of $2,500.00.

ARTICLE IV

I give and bequeath to TEMPLE B’NAI JEHUDAH the sum of $2,500.00.

ARTICLE V

All the rest, residue and remainder of my estate, whether real, personal or mixed, and wherever situated, I give, devise and bequeath to my beloved wife and my beloved cousin, Toby Fishman, share and share alike.

The testator, Toby Fishman, died a resident of Jackson County, Missouri, on May 18, 1971, and the will was duly admitted to probate in the Probate Court of Jackson County, Missouri. The testator left surviving neither father, mother, brother, sister nor descendants of any of them but was survived by his widow, Agnes Fishman, appellant herein. Respondent is the widow of Toby B. Fishman (a cousin of testator) who was the person named in Article III of the will as “cousin Toby Fishman”. “Cousin Toby Fishman” died September 3, 1971 and respondent is executrix and sole distributee under his will.

Testator was a lawyer who had practiced law in Jackson County, Missouri and had been engaged in managing investments in Mexico and other states and in buying, selling and renting real property in the state of Missouri. Appellant and testator were married July 2, 1964 and the will was executed October 6, 1964. At the time of the marriage testator was 78 years of age and appellant was 49 years of age and he and appellant lived together as husband and wife until his death on September 3, 1971. Testator was declared incompetent July 27, 1966.

The case was submitted in a trial to the court upon a stipulation of facts and the trial court construed the will as follows:

(1) Appellant would receive testator’s home at 2828 East 11th Street, Kansas City, Jackson County, Missouri, together with all household goods, furniture, furnishings and automobiles pursuant to Article II.

(2) Respondent would receive the specific bequest of $2,500.00 pursuant to Article III.

(3) Temple B’Nai Jehudah would receive the specific bequest of $2,500.00 pursuant to Article IV.

(4) The residue to be divided equally between appellant and respondent pursuant to Article V.

The appeal being from a court tried case, the appellate court considers the whole record and reviews the case on the stipulated facts and the law. The judgment of the trial court will therefore be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The basic problem presented is whether or not the second sentence of Article II conflicts with Articles III, IV and V and the proper construction to be given to the will.

Appellant contends that no conflict or ambiguity exists. In explanation of this conclusion she insists that testator’s plan of distribution is carefully and clearly set out and clearly shows her to be the primary object of his bounty. Under her theory of construction she would receive all of the personal property of the estate and all of the real estate located in the State of Missouri. Under her theory the bequests in Articles III, IV and V would be paid from real estate owned by testator outside the State of Missouri. This theory is based on the fact that an intestate decedent’s personal property passes under the laws of the domiciliary state and real estate passes in accordance with the laws of the state in which the real estate is located.

Appellant further argues that testator being a lawyer knew precisely the meaning of the language he used and intended to make a specific devise of the home, all household goods, furniture, furnishings and automobiles in the first sentence of Article II and intended to make an overlapping general devise of all property passing under the intestacy laws of the State of Missouri in the second sentence of Article II. Appellant theorizes that testator purposely made such a provision so that the specific devise to appellant in the first provision of Article II would be given priority from abatement in the event some gifts in the will abated in order to pay claims and expenses. Under appellant’s theory of construction all of the legacies contained in Articles III, IV and V would abate unless testator owned real property outside the State of Missouri at the time of his death.

Section 474.010, RSMo 1969, defines the share of a decedent’s property the widow is to receive if the testator dies intestate. Respondent, citing Crist v. Nesbit, 352 S.W.2d 53 (Mo.App.1961), contends that under the language of this statute a widow is entitled to all the estate if a decedent is not survived by issue, father, mother, brother or sister or their descendants. Thus a devise in a will granting to a widow that portion of the estate which she would have received under the laws of the State of Missouri if the decedent died intestate would pass all of the estate to the widow. Thus construed respondent says the second sentence of Article II is completely at war with both the first sentence of Article II and all of Articles III, IV and V and therefore should be disregarded.

In will construction cases legal precedents are of little value because two wills containing identical language are seldom found and the burden is therefore cast upon the court to ascertain the true intent and meaning of the testator without attempting to write a new will and without making equitable distribution of the estate. First Trust Company v. Myers, 351 Mo. 899, 174 S.W.2d 378, 380 (Mo. banc 1943). It is well settled that the court must look to the whole document in determining the true meaning of the testator and if the will is obviously ambiguous the surrounding facts and circumstances should be examined. Seltzer v. Schroeder, 409 S.W.2d 777 (Mo.App.1966); First National Bank of Kansas City v. University of Kansas City, 245 S.W.2d 124 (Mo.1952).

It is not necessary that the court choose either appellant’s or respondent’s construction of the second sentence of Article II for the reason that this sentence is inconsistent with the intent expressed in the entire will regardless of the construction adopted. Article II of the will is ambiguous and directly contradicts the provisions of Articles III, IV and V which are clear and unambiguous.

If any reasonable meaning were to be given the second sentence of Article II there would be no need for the bequest in the first sentence of the home, household goods, furniture and furnishings. There would be no need because they would be included in the bequest of the second sentence of the same Article.

Even under appellant’s theory the second sentence of Article II would leave Articles III, IV and V nugatory unless the decedent left real property outside the State of Missouri. There is no'reference in the will to real property outside the State of Missouri and it is not reasonable that the testator would make the bequests in Articles III, IV and V contingent upon his ownership of out of state real property at the time of his death nor that such nebulous language would be used to create such a contingency.

The second sentence of Article II is irreconcilable with the remaining provisions of the will. Without this sentence all other provisions are consistent and reasonably express the true intent of the testator. Where two provisions of a will are contradictory the provision should prevail which most nearly appears to be in accord with testator’s wishes. Heard v. O’Dell, 335 Mo. 202, 72 S.W.2d 491 (1934).

The most reasonable construction must be that testator intended to bestow a portion of his bounty upon those beneficiaries of Articles III, IV and V without contingency or reservation. Accordingly, the judgment is affirmed.

All concur.