author: SEILER, Judge. BARDGETT, Judge,

text:
    Hartley B. COMFORT, Clarence R. Comfort, Viola Comfort, Samuel T. Comfort and Edward W. S. Owens, Plaintiffs-Appellants, v. Jennie C. HIGGINS, Lucia Lee Bates, Dr. James L. DeFoe, Rev. William J. Williamson, Rev. S. H. Wainwright, Rev. J. Layton Mauze, Robert M. Nichols, Trustees, St. Louis Women’s Christian Association, a pro forma decree corporation, Memorial Home, Inc., a not-for-profit corporation and John M. Dalton, Attorney General of the State of Missouri, Defendants-Respondents.
    No. 60647.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    Rehearing Denied Feb. 13, 1979.

      Carroll J. Donohue, Alan B. Hoffman, T. Hartley Pollock, St. Louis, for plaintiffs-appellants.
    Norman C. Parker, St. Louis, G. Michael Bauer, Asst. Atty. Gen., Jefferson City, for defendants-respondents.
   SEILER, Judge.

This cause was transferred pursuant to Mo.Const., art. V., § 10, and rule 83.01 upon certification by a member of the court of appeals, St. Louis district, that the majority opinion, holding that the settlor of the trust involved herein established the same with a general rather than a specific charitable intent, was in conflict with prior opinions of this court and the court of appeals. Portions of the opinion of the court of appeals and the dissent are used below without quotation marks. We reverse and remand.

Plaintiffs-appellants (appellants) appeal from a judgment against them in two consolidated causes of action. Appellants filed an action, cause No. 217613, on April 10, 1957 against respondents St. Louis Women’s Christian Association (SWCA), Memorial Home, Inc. (MHI), and the seven trustees named in a trust instrument dated August 29,1912. The trust made the trustees legal owners of property on which Memorial Home Board, (predecessor to Memorial Home, Inc.), an auxiliary of SWCA, was to establish a Home for the Aged, to be called Baxter Protestant Memorial, in memory of the settlor’s father, on the ancestral land of the settlor. Appellants claimed that the trust failed, that it had been established by the settlor with a specific rather than a general charitable intent, and therefore that title to the trust property should be quieted in them as heirs of the settlor either by reversion or by virtue of a resulting trust.

On January 9, 1961, MHI filed an action, cause No. 238649, seeking to quiet title to the real property in it subject to the trust. The two cases were consolidated for trial in 1974.

In August 1975, the trial judge filed his fifty-one findings of fact and twenty-three conclusions of law. He found that the set-tlor evinced a general charitable intent, the trust had not failed, and that appellants thus had no claim to the property and denied them relief. He quieted title in MHI in fee simple for the charitable and benevolent uses mentioned in the 1912 deed. In addition, the trial court purported to award to MHI the amount paid into the registry of a different division of the circuit court as the result of a public utility condemnation proceeding concerning the property.

The deed by which the settlor, Mourning B. Hardy, set up the trust in question is as follows, in pertinent part:

“This deed made and entered into this the 29th day of August, 1912 by and between Mourning B. Hardy, widow of Robert A. Hardy of St. Louis County, Mo., party of the first part and Jennie C. Higgins, Miss Lucia Lee Bates, Dr. James L. DeFoe, of St. Louis Co., Mo., and Rev. Wm. J. Williamson, Rev. S. H. Wainwright, Rev. J. Layton Mauze, and Robert M. Nichols, of St. Louis, Mo., parties of the second part, and the St. Louis Women’s Christian Association, and its auxiliary mentioned in Article II and known as ‘Memorial Home,’ a corporation, located and doing business in the City of St. Louis, Mo., party of the third part,
“WITNESSETH: That Whereas it has pleased God to give to the party of the first part herein by inheritance from her father, John Baxter, the real estate and property hereinafter described, which was his homestead settled by him in 1836, and upon which is situated his house built of hewn timber by him in 1836; and
“WHEREAS, the said party of the first part is desirous of keeping in living memory the record of his generosity by establishment of a home upon the property hereinafter described for aged men and women and aged men and their wives upon the conditions and such as is carried on by the St. Louis Women’s Christian Association in its auxiliary, the Memorial Home, as aforesaid:
“NOW, THEREFORE, in consideration of the premises and the sum of one dollar to the said party of the first part in hand paid by the party of the third part, the receipt of which is hereby acknowledged, the party of the first part does by these presents grant, bargain and sell, convey and confirm, unto the said parties of the second part herein, or their survivor or survivors, successor or successors, upon the trusts, uses and purposes hereinafter designated, subject, however, to an estate therein for the life of the said grantor, Mourning B. Hardy, party of the first part or reserving from said grant unto said Mourning B. Hardy, party of the first part, an estate during her natural life, the remainder after the life estate so reserved to the said grantor herein, in and to the following described real estate situated in the County of St. Louis, State of Missouri, and particularly described as follows to wit:
[a description of the land follows]
“The said second parties herein or their sucessor [sic] or successors, shall suffer the said party of the third part herein to establish upon said premises, under its present rules and regulations, a farm Home for aged men and aged women and aged men and their wives, and to that end and purpose the party of the third part herein shall do all acts and things necessary to provide shelter and subsistence from the cultivation of the soil, or otherwise, to ameliorate the condition of the poor, weak, aged and helpless, as is now presently carried on in the said auxiliary known as the ‘Memorial Home’ the grant herein, however, is upon the condition that if at the falling in of the life estate herein reserved in favor of said grantor Rebecca Baxter, the widow of Hartley S. Baxter and Mrs. Meekie Kin-kead, or either of them, should be alive, then the said Memorial Home and the said beneficiary herein shall cause the said Rebecca Baxter or Mrs. Meekie Kin-kead to be cared for with all the necessaries of life found to them and protected in the home intended hereby to be established. And upon further condition that the property herein conveyed and the establishment of the same be forever known as the ‘Baxter Protestant Memorial.’ The said parties of the second part To Have and To Hold the said above described real estate in trust, as aforesaid, subject to said life estate herein reserved in favor of said grantor, and subject to any incumbrances that may be existing upon said property, and to their successors and assigns forever; . . . ”

The property was initially in the name of John Baxter and passed upon his death in 1887 to his children, Hartley Baxter and Mourning Hardy (settlor). In 1894 Hartley Baxter and his wife conveyed their interest to Mourning. Mourning’s husband died on February 7, 1912. Settlor died February 25, 1917.

The parties have presented this court with numerous exhibits which recount the history of the usage of the Baxter property. The facts are as follows:

Since about 1881, MHI, one branch of SWCA, has maintained Memorial Home, a residence home for the elderly in the City of St. Louis. In addition to the maintenance of Memorial Home, SWCA has controlled Women’s Christian Home (organized 1868), Blind Girl’s Home (organized 1867), Russell Home (organized 1907) and Catherine Springer Home (organized 1919).

Upon the death of Mourning B. Hardy, MHI assumed control of the Baxter property subject to a $3,000.00 mortgage which MHI subsequently retired. At the time of Mrs. Hardy’s death, the principal building on the property was a house of rough hewn timber constructed in 1836. The two-story house was approximately 30 feet by 40 feet in dimension. It had neither running water, plumbing, electricity nor central heating.

Between 1918 and 1943, MHI made various repairs and improvements to the building, including painting and installation of bathroom facilities. The evidence shows that during these years MHI never used the building as a year-round residence home for the elderly. Rather, small groups of the residents of Memorial Home were taken to the Baxter property for short summer outings between 1918 and 1943. However, for a number of intervening years the building was not even open because the Memorial Home residents preferred the comforts of Memorial Home to the rigorous conditions of the Baxter property, or because those residents who enjoyed the summer outings were considered too frail to go. On account of storm damage in 1939 and severe vandalism, the building deteriorated and a decision was made to demolish it. Since 1943, there has been no structure on the Baxter property.

The acreage surrounding the building has been leased for farming purposes since 1918 and MHI has paid all the taxes. There is evidence that the trustees participated in the management of the property until the last surviving trustee, Dr. DeFoe, died in 1944. SWCA’s charter expired in 1932 but was revived in 1937.

In 1955, Memorial Home Board was incorporated as Memorial Home, Inc., (MHI). In 1956 SWCA quitclaimed all of its interest in the Baxter property to MHI. In addition, all assets held by SWCA for the benefit of Memorial Home were transferred to MHI.

Between 1957 and 1974, MHI continued to pay the property taxes on the Baxter property, rejecting all offers of sale, formed a Baxter Road Development Committee, drafted several resolutions endorsing development of a home on the property, and commissioned three sets of architectural drawings and a development feasibility study. No actual construction of a Home was commenced, nor was any application made for a zoning change or any detailed plans for construction of a Home drawn up. No new trustees were appointed once the original trustees died.

Testimony at trial consisted primarily of the examinations of Hartley Comfort and of several members of the MHI Board. Hartley Comfort described his childhood contacts with Mourning B. Hardy and his negotiations to purchase or lease the property with MHI board members in the 1940⅛ and 1950’s. The witnesses for MHI uniformly testified that MHI still had every intention of establishing a Home on the Baxter property once the Comfort litigation was resolved. In addition, the attorney general submitted evidence as to the need for housing for the elderly by the testimony of Daniel J. MacDonald, Jr., executive director, Health and Welfare Council of Metropolitan St. Louis.

Appellants, the Comforts, claim a rever-sionary interest and, alternatively, a resulting trust in the subject property. As grounds for their claim, appellants assert first that the trust has failed because: the trustees failed to fulfill the purposes of the trust within a reasonable time; the trustees have abandoned the purposes of the trust; and it is impossible or impracticable to accomplish the objectives of the trust in accordance with the settlor’s specific charitable intent; and second, that the settlor had a specific charitable intent in establishing the trust, and thus that upon failure of the original trust purpose cy pres is not available and the trust property must return to them. The respondents reply that the trust has not failed, was formed with a general charitable intent, and that title to the property should thus be quieted in them. They do not ask us to apply cy pres to the trust in the event we find that its original purpose has failed, but simply to hold that, if the purpose is general, then the heirs, appellants, have no interest and title must thus be quieted in respondents.

I.

Our first inquiry must be into the specific purpose and intent of the settlor in creating the trust, as evidenced by the words of the trust instrument. We disagree with the conclusion of the respondents that the primary purpose of the settlor was to aid the “poor, weak, aged and helpless” and of the trial court, in finding No. 7, that it was to maintain the homestead as a memorial to her father, primarily through farming. The language of the trust instrument, quoted above, makes clear that the primary purpose of the settlor was, specifically, to establish a Home, to be called Baxter Protestant Memorial, for aged men and women and aged men and their wives upon the conditions and under the rules and regulations then existing in Memorial Home, in order to keep “in living memory the record of” her father’s generosity.

Although the trust instrument does not state explicitly whether the Home is to be in the cabin built by the settlor’s father on the property, or is to be a separate structure, the words used and the facts show it to be the latter. The use of the word “establish” so indicates, as does the fact that the Home was to be established “on like terms and conditions” to Memorial Home. The cabin had no running water, plumbing, or other facilities, and contained only two or three bedrooms, while Memorial Home held from 95 to 101 persons during 1912 and was a year-round facility with all normal comforts. Clearly a new structure would have to be built (or a material enlargement of the old structure be made) in order to make even a somewhat comparable Home on the trust property. The exact manner of establishing the Home was left to the trustees and SWGA and MHI, who were, to the “end and purpose” of establishing a Home on the premises under Memorial Home’s rules and regulations, to “do all acts and things necessary to provide shelter and subsistence from the cultivation of the soil, or otherwise, to ameliorate the condition of the poor, weak, aged and helpless,” that is, the type of person who resided in Memorial Home and who the settlor wished to reside in the Home to be established on her property. From the language of the instrument, we conclude that this included the building of a Home and that the trial court erred in construing the instrument otherwise.

II.

Having determined the settlor’s intent, we now must decide whether that intent has been carried out, or is likely to be carried out, or whether the trust has failed. Unless and until it is determined that the trust has failed, the question of general or specific charitable intent is irrelevant. Levings v. Danforth, 512 S.W.2d 207, 211 (Mo.App.1974); City of St. Louis v. McAllister, 281 Mo. 26, 218 S.W. 312, 317 (banc 1920). If failure of the trust is determined, and if the settlor’s intent was specific, then a resulting trust or reversion for the settlor or his heirs will result. City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425, 427 (banc 1924); Reed v. Eagleton, 384 S.W.2d 578 (Mo.1964). If it is general, then the court will not decree a reversion or resulting trust, but will permit the trust to continue. If requested, cy pres may be applied in the future. Ramsey v. City of Brookfield, 361 Mo. 857, 237 S.W.2d 143, 145-146 (1951).

We conclude that the trust has failed, for the reason that the expiration of more than a reasonable time has elapsed without any substantial step towards fulfillment of its purposes. See generally 14 C.J.S. Charities § 44 (condition to grant must be performed within a reasonable time, to be determined by facts and circumstances). As stated in Rohlff v. German Old People’s Home, 143 Neb. 636, 10 N.W.2d 686, 691 (1943):

“[I]t is incumbent upon a charitable corporation to carry out its purpose and that of the donor within a reasonable time where no general charitable intent is found in the bequest, otherwise the gift will revert to the donor, if living, or to his heirs, if he be deceased.”

See Perry v. Town of Friendship, 237 A.2d 405, 408 (Me.1968).

That Missouri has adopted the principle that the donor’s intent must be carried out within a reasonable time is apparent from a reading of Rice v. Hawley, 239 Mo. App. 901, 203 S.W.2d 158, 162 (1947). In that case, the testator bequeathed part of the residue of his estate to the trustees of the “Odd Fellows Lodge No. 85 of Neosho, Mo. for the purpose of building a hospital in the City of Neosho, Mo.” Id. at 160. While the claim of the heirs of the testator was premature, (the suit was to determine to whom the trustee should pay out the money, it apparently never having been given the Lodge, despite the fact that twenty-one years had elapsed between the testator’s death and the suit), the court stated that if the trustees of the lodge fail to use the remainder of such estate in the manner intended by the testator “within a reasonable time, it should revert to his estate.” Id. at 165.

The respondents and the trial court apparently misconstrued the argument that the trust had failed because more than a reasonable time had elapsed as constituting an allegation of breach of trust. If this were the allegation, then as concluded by the trial court in conclusions of law Nos. 17 and 18, the attorney general, not the appellants, would be the proper party to sue, IV Scott on Trusts, § 401.1, at 3139 (3d ed. 1967); Bogert, Trusts and Trustees, § 418, at 366 (2d ed. 1977); Restatement (Second) of Trusts, § 401, Comment a (1959), and he would sue for enforcement of the trust terms, not for a reversion or resulting trust. Lewis v. Brubaker, 322 Mo. 52, 14 S.W.2d 982, 988 (1928); Glaze v. Allen, 213 S.W. 784, 785 (1919); IV Scott on Trusts, § 401.1, at 3139 (3d ed. 1967). However, the appellants do not allege breach of trust, nor make any accusations against the trustees directly, but simply allege failure of the trust altogether. In such a case:

“To allow the trust property to remain as it is means its uselessness in the present . It should either be applied in such a way as to effectuate the general charitable intent of the testatrix, if such intent can be found, by invoking the doctrine of cy pres, or it should be held to belong to the heirs at law on the ground of a lapsed devise.” Gilman v. Burnett, 116 Me. 382, 102 A. 108, 109 (1917).

Respondents assert that the cases cited above are not in point because in them the court found a specific rather than a general charitable intent. First, as will be gone into below, we think the settlor’s intent was specific in this case also. Second, respondents’ argument is not responsive to the question of failure of the trust. Rather, it goes to the second and independent inquiry into intent which is made only after a determination of failure has been made. Appellants’ authorities are thus quite relevant to a determination of whether or not the trust has failed.

The facts adduced at trial leave no doubt that more than a reasonable time has elapsed within which accomplishment of the trust purposes should have been at least substantially begun. The settlor died in 1917. Suit was not instituted until 1957. During the intervening forty years, as noted above in setting out the facts, no Home was established. Except for visits of a few weeks during the summers until 1943, the property was not used except for farming. No effort to modify the trust to make its purposes more readily attainable was made. The trust property was referred to by MHI as “Baxter Heights” or “the farm”, and not as “Baxter Protestant Memorial”, although signs bearing the latter name were erected on the property from time to time. In short, none of the purposes of the trust were accomplished within that period. Yet the settlor indicated an intent that these purposes be fulfilled quickly by providing that the Home should be established under the “present rules and regulations” of Memorial Home, and by providing that a friend and a relative of the settlor should be cared for in the Home if they outlived her, indicating a desire and belief that the Home would be established sufficiently promptly to accommodate them.

Respondents argue that circumstances beyond their control prevented implementation of the trust up to the time suit was filed in 1957, and that since that time the cloud on title caused by the pendency of this suit has as a practical matter prevented further action by them. They point to architectural plans and a feasibility study prepared or revised in 1961, 1964, 1971, and 1972, and to transfer of $834,040 to a construction fund in 1972 as evidence of their intent to build once their title to the property is established. We express some doubt that the act of preparing a few very general sketches of a proposed building could support an inference of implementation of the trust agreement in light of failure to seek a zoning change or permit to allow construction, failure to adopt any of the plans, failure to detail or implement them, and in light of the use of the construction fund money for other purposes when needed. In any ease, if the forty years that had passed before these actions were taken were more than a reasonable time, later actions could not change that fact. Furthermore, if various factors, including lack of funds, World War II, uncertainty as to the proposed route of Highway 270 across the property, and this suit, effectively prevented implementation of the trust purposes for what is now more than sixty years, there is no reason to think other circumstances will not prevent its future implementation. Certainly the above factors affect a determination of what is a reasonable time, but they do not suspend it. Whether “a reasonable time” is measured as of the institution of suit, or as of the present time, we conclude that the trust has failed because unreasonable delay in its implementation has occurred and the conclusion of the trial court to the contrary erroneously applies the law.

III.

We now reach the second part of our inquiry, whether the settlor evinced a specific or general charitable intent in creating the trust. Specific intent will be found:

“where it is determined that the settlor’s intent was to aid that kind of charity only in a particular way or by a particular method or means, that he intended to make no gift to that general kind of charity other than by the specified particular means, that he intended that, if the specified particular means failed, the gift failed, and that the corpus of the trust estate could no longer be used for the general type or kind of charity he desired to assist.” Ramsey v. City of Brookfield, 237 S.W.2d at 146.

Thus, in Ramsey the court found general charitable intent where the testator excluded his collateral heirs in his will. In that case, the testator bequeathed the residue of his estate “for the sole purpose of building and equipping and maintaining a City hospital. It is further my will that said hospital be located within the said City of Brook-field, Missouri, and that this bequest be used for hospital purposes and no other.” Id. at 144. The evidence showed, first, that the trust had not failed because it was not clear that the city had totally abandoned the idea of building a hospital, and second, the above-quoted words “for hospital purposes and no other” evinced a general charitable intent.

In Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677, 683 (1934) the court broadly stated that “[unquestionably, when the intent is to apply the gift to a continuing problem, there is a general charitable in-ten!” This comment, of course, must be read in light of the fact that most charitable gifts are to some degree made to ameliorate a continuing problem, hence their charitable nature. Thus, gifts are to aid education, science, literature, the poor, the sick, and so on. The problem is of course continuing. The question is whether the settlor or donor intended to benefit all those affected by the continuing problem, or only certain of those persons. In Thatcher, the settlor had directed one-third of his estate be used to establish a monetary fund in St. Louis to aid needy, western travelers. The fund had been successfully so used for a number of years but an excess of monies existed and the court applied cy pres and concluded that this excess could be used for similar but different purposes in keeping with what it found to be the general charitable intent of the settlor. Id. at 681-82. Courts are more willing to find such a general intent where a trust has been successfully implemented for a long period. Thatcher v. Lewis, 76 S.W.2d at 682; see IV, Scott on Trusts, § 399.3, at 3111 (3d ed. 1967). Additionally, in Ramsey and in Thatcher the gift in question was a monetary one. In the present case, the trust property was the land settled by the set-tlor’s father. This fact has been viewed by some courts as strong evidence of an absence of general charitable intent. Gilman v. Burnett, 102 A. at 110; Fidelity Union Trust Co. v. Laise, 142 N.J.Eq. 366, 60 A.2d 250, 254 (1948); Waterbury Trust Co. v. Porter, 131 Conn. 206, 38 A.2d 598, 603 (1944).

The absence of any direction for a reversion to the settlor in the case of failure could indicate a general charitable intent, Thatcher v. Lewis, 76 S.W.2d at 683; Bogert, Trusts and Trustees, § 437 (2d ed. 1977). However, this result is generally reached where the heirs were either specifically excluded, Ramsey, 237 S.W.2d at 146, or had received other gifts in the will, thus indicating that no further gifts were intended, Levings v. Danforth, 512 S.W.2d at 211-12; Thatcher v. Lewis, 76 S.W.2d at 683. Here, the trust was an inter-vivos one, and thus no inference can be made that the settlor purposely excluded her heirs.

Additionally, the language and terms of the trust itself indicates specific intent. A gift was made in trust, rather than outright. Rather than providing that it be used for the general benefit of the persons in Memorial Home, who are the same class of persons as would be benefited by the trust, it specifically provided that a Home, to be known as the “Baxter Protestant Memorial”, was to be established, indicating a desire for a permanent memorial to the settlor’s father. Moreover, the language of the trust states that Memorial Home was “to establish upon said premises, under its present rules and regulations, a farm Home for aged men and aged women and aged men and their wives, and to that end and purpose” (emphasis added) to provide shelter and cultivate the soil to ameliorate the condition of the weak, etc. Contrary to the trial court’s conclusions of law Nos. 1-3 that the grant constituted a general charitable trust, it is clear that the set-tlor had a specific intent to create a Home, of the type carried on by Memorial Home, in memory of her father, on the property which he had bequeathed to her. Only toward that end and purpose was it to provide shelter and subsistence. For the set-tlor to have evinced a general intent, she would have stated that to the end and purpose of helping the aged she wished to set up the Home, rather than the converse as was here done. Only in that way could a court conclude that the trustees could use means other than those specifically provided for in order to effectuate the trust purposes. Here the setting up of the Home, as described, was an end, not a means. The ultimate reason for that end must of necessity have rested in some part on a general concern for the plight of the aged, but only in the sense that all charitable gifts, whether made with specific or general intent, are to some extent a result of a general concern for the cause benefitted. The nature of a charitable trust should not be confused with the nature of the settlor’s intent. Here the settlor’s more specific intent was to set up a Home to commemorate her father in a specific manner.

We thus conclude that the trust has failed and that it was established by the settlor with a specific charitable intent. The property must revert to the heirs of the settlor, appellants herein. Gilman v. Burnett, 102 A. at 109; Rice v. Hawley, 203 S.W.2d at 165.

IV.

We also address two other issues.

First, the appellants argue that the trial court erred in quieting title in MHI. We agree MHI’s claim to title in the property is founded on the existence of a quitclaim deed dated October 12, 1956, executed by the president of SWCA, purporting to convey SWCA’s interest in the property to MHI. As the grantee, MHI could take only such interest in the property as SWCA, the grantor, could convey. Smith v. City of St. Charles, 552 S.W.2d 60, 62 (Mo.App.1977); Land Clearance for Redevelopment Authority of Kansas City v. Dunn, 416 S.W.2d 948 (Mo.1967); Reasor v. Marshall, 359 Mo. 130, 221 S.W.2d 111 (1949). Thus, it is necessary to determine what interest, if any, SWCA had in the property.

The MHI theory, adopted by the trial court as conclusion of law No. 10, was that the deed imposed “no active duties upon the trustees” and that the Statute of Uses, § 456.020, RSMo 1969, thereby came into effect to vest title in SWCA, and through the quitclaim deed in MHI.

First, the trust was not a dry one. The deed transferred the legal title to the trustees rather than directly to SWCA and MHI in order that the former could “suffer the said party of the third part [SWCA and MHI] herein to establish upon said premises, under its present rules and regulations, a farm Home . . . ” The instrument could thus be considered to give the trustees some supervisory control over the actions SWCA and MHI. In fact, the record shows that various trustees were consulted over the years before decisions were made as to whether to sell or repair the property and cabin. Since the trust could be read to imply duties, and since active duties were in fact undertaken, we conclude that the trust was not a dry one.

Additionally, even if the trust were dry, it would not have caused legal title to be vested in SWCA by the Statute of Uses. The Statute of Uses merges legal and equitable title in the beneficiary where no substantial duties are given to the trustees, Farkas v. Calamia, 373 S.W.2d 1 (Mo.1963). However, neither SWCA nor MHI were the beneficiaries of the trust. Rather, they were the persons who were to establish and manage the Home, Baxter Protestant Memorial, under the supervision of the trustees. The beneficiaries, as must be true in the case of all charitable trusts, are not specifically identifiable. Ramsey v. City of Brookfield, 237 S.W.2d at 145. As a group, they were the “aged men and women and aged men and their wives” who were the intended residents of the Baxter Protestant Memorial. Legal title could thus not merge in SWCA by following the equitable title, for SWCA did not hold the equitable title. The trustees never attempted to transfer title to SWCA or MHI. Consequently, MHI gained no title by the quitclaim deed from SWCA and thus title could not properly be quieted in it even if we had not found a reversion in appellants.

On the second issue, appellants correctly assert that the trial court had no authority to decree the disposition of the condemnation award paid into a different division of the circuit court. Both sides filed exceptions to the award, which apparently were still pending when this appeal was briefed and argued. Once a division of the court acquires jurisdiction of the subject matter of a suit, it holds it to the exclusion of all other courts of concurrent jurisdiction. Koplar v. Rossett, 355 Mo. 496, 196 S.W.2d 800, 806 (banc 1946); State ex rel. Banner Loan Co. v. Landwehr, 324 Mo. 1142, 27 S.W.2d 25, 28 (1930); Goddard v. Delaney, 181 Mo. 564, 80 S.W. 886 (1904). The award on deposit is considered a fund in litigation which cannot be distributed to the rival claimants without an order of the court. State ex rel. State Highway Commission v. Paul, 368 S.W.2d 419, 423 (Mo. banc 1963).

The judgment is reversed and the cause remanded with directions to enter a decree dissolving and terminating the trust established by the deed of August 29, 1912 and vesting plaintiffs with fee simple title in equal shares in and to the land in question and decreeing further that the defendants have no right, title, claim or interest in any of said real estate or any lien thereon and are enjoined from asserting any right, title or interest in and to said property.

MORGAN, C. J., and FINCH and REND-LEN, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

DONNELLY, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

BARDGETT, Judge,

dissenting.

As indicated in the principal opinion, the primary issue in this case is whether the settlor had a general charitable intent or if the primary purpose of the settlor was specifically to establish a particular home to be called Baxter Protestant Memorial for the purpose of keeping “in living memory the record of” her father’s generosity. The majority in the court of appeals concluded the settlor evidenced a general charitable intent. The principal opinion in this court is to the contrary. I am in agreement with the court of appeals in the matter and, therefore, I dissent.

      . The cases referred to are: Reed v. Eagleton, 384 S.W.2d 578 (Mo.1964); Ramsey v. City of Brookfield, 361 Mo. 857, 237 S.W.2d 143 (1951); Rice v. Hawley, 239 Mo.App. 901, 203 S.W.2d 158 (1947); and City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425 (banc 1924).

      . There was testimony as to plans drawn up in 1950, but these were never introduced, no details of them could be provided and in further testimony the witness stated that she had actually seen them sometime during Mrs. Atkin’s tenure as President of Memorial Home Board, between 1952 and 1957.

      . Because of our resolution of the above issue, we do not reach the question whether the trust has failed because its purposes have been abandoned, or are impossible to perform. We note only that similar factors would apply to an inquiry into these issues.


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Eugene LEE, Defendant-Appellant.
    No. 10544.
    Missouri Court of Appeals, Springfield District.
    March 21, 1978.
    Motion for Rehearing Overruled or Transfer Denied April 12, 1978.
    Case Transferred to Supreme Court May 8, 1978.
    Retransferred as Improvidently Granted Feb. 6, 1979.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Wayne C. Smith, Jr., Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Thomas Eugene Lee was found guilty by a jury of robbery in the first degree [§ 560.120 RSMo 1969] and sentenced by the court under the Habitual Criminal Act [§ 556.280, RSMo 1969] to a 20 year prison term. In this appeal defendant complains of error in the admission of certain evidence. We affirm the judgment.

Defendant was identified by the robbery victim as one of the two men who took the victim’s automobile after the victim was told by defendant’s accomplice the two men were escaped convicts from Oklahoma and defendant had a gun at the victim’s head.

The trial transcript shows the jury’s verdict was received September 28, 1976, and defendant’s motion for new trial was filed October 25, 1976. Rule 27.20, V.A. M.R., requires a motion for new trial to be filed within ten days after the return of the verdict, unless upon application of defendant and order of court the time is extended as limited by the rule. The transcript does not show an application or order for additional time within which to file the motion for new trial and, consequently, defendant’s untimely motion for new trial is a nullity and preserves nothing for appellate review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Watson, 511 S.W.2d 890 (Mo.App.1974).

We have, under our discretionary authority, examined defendant’s points in this appeal to determine whether defendant is entitled to any relief by reason of plain error within the meaning of Rule 27.20(c), V.A. M.R., and conclude the plain error rule is not applicable.

The evidence defendant was an escapee from an Oklahoma prison was relevant to establish defendant’s identity, motive, intent, and show a common scheme or plan, all of which are recognized exceptions to the general rule prohibiting evidence of other unrelated crimes. State v. Knighton, 518 S.W.2d 674 (Mo.App.1975).

The statement by defendant’s accomplice that they were escaped convicts from Oklahoma, made during the course of robbery, was admissible as part of the res gestae. State v. Wren, 498 S.W.2d 806 (Mo.App.1973). It was also admissible as a declaration of a co-conspirator. State v. Peters, 123 S.W.2d 34 (Mo.1938).

The Oklahoma prison records confirmed defendant was a recent escapee from that institution at the time of the instant crime and, as defendant told the victim, had a two-year-old son. The statement and the records were relevant to establish defendant’s identity, to demonstrate defendant’s motive for committing the crime of first degree robbery, to show a common scheme or plan of escaping the authorities, and intent to instill fear in the victim. State v. Knighton, supra; State v. Booker, 517 S.W.2d 937 (Mo.App.1974).

We do not find the pretrial photographic identification of defendant by the victim to offend constitutional boundaries. The procedures followed by the police were thoroughly explored in defendant’s pretrial motion to suppress his identification and at trial. There was no evidence to support defendant’s contention that the procedures ran afoul of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), by being “impermissibly suggestive.” Furthermore, the record justifies the conclusion that the victim had an independent basis for defendant’s identification at trial. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Madison, 537 S.W.2d 563 (Mo.App.1976). The victim was in the company of defendant for about an hour. The crime was committed during the daylight hours. The victim was close to the defendant and had a clear view of defendant’s face. The victim made an unhesitating and positive identification of defendant at a pretrial confrontation which occurred less than three weeks after the crime.

Defendant’s claim he was denied a right to a speedy trial is not supported by the record. “Facts” offered in support of this contention can be gleaned from defendant’s unverified motion to dismiss the proceedings but are not buttressed by evidence. The record shows the information was filed June 10, 1976, and he was tried approximately three months later. Delays between the date of the information and trial were occasioned by defendant’s pretrial motions, including motions to disqualify the trial judge and permit his attorney to withdraw. “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). See: State v. Odzark, 532 S.W.2d 45 (Mo.App.1976); State v. Gardner, 534 S.W.2d 284 (Mo.App.1976).

A police officer’s testimony that the victim identified defendant from a group of photographs shown to him prior to the trial is assailed by the defendant, citing State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc 1972). This evidence was cumulative to pri- or like testimony by the victim. There was no objection to the officer’s testimony and defendant “actively joined in the presentation of this evidence to the jury by [his] cross-examination.” State v. Cooksey, 499 S.W.2d 485 (Mo.1973).

We have examined those matters we are required to review under Rule 28.02, V.A. M.R., and find no error.

The judgment is affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    ASSOCIATED UNDERWRITERS, INC., Appellant, v. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, Respondent.
    No. 38693.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 5, 1978.

      Daniel P. Reardon, Jr., and Daniel P. Reardon, St. Louis, for appellant.
    David Wells, Thompson & Mitchell, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Associated Underwriters, Inc. (hereafter “Associated”) has appealed from a judgment entered pursuit to a jury verdict for defendant in its action for damages against Mercantile Trust Company National Association (hereafter “Mercantile”) for improperly handling certain checks. We affirm.

The only point in appellant’s brief pertains to the correctness of Instruction No. 4, but it will be helpful to set forth the circumstances which brought about this litigation.

In 1966 John J. Roche, a licensed insurance broker, took over an insurance business previously operated by R. J. O’Brien, his uncle, and he maintained an account at Mercantile in the name of R. J. O’Brien & Co. In October 1970 Roche became affiliated with Associated which was a federation of individual insurance brokers. Each broker operated as an independent contractor and received no salary from Associated. There was no written agreement between Associated and the individual brokers but apparently by an oral arrangement Associated was to receive 40% and the broker 60% of each commission received, and in return Associated performed work in connection with the servicing of the insurance policies.

Each broker sent or arranged for the sending of statements to his customers, but the statements were sent on forms containing the name of Associated. Each Statement sent by Roche contained a notation that checks should be made payable to Roche as agent of Associated. Pursuant thereto the checks which are the subject of this litigation were made payable to “John J. Roche Agent Associated Underwriters,” or “Associated Underwriters John J. Roche Agent,” with minor variations of no significance.

The practice at Associated was that when checks in payment of premiums were received they were forwarded directly to the individual broker. When Roche received the checks he endorsed them as agent for Associated and deposited them in the account carried in the name of R. J. O’Brien & Co. Each month while he was affiliated with Associated he drew a check on that account and sent it to Associated. The total amount was $58,492.97 but the record does not show what these transmittals were for.

In this suit Associated contends that without its endorsement Mercantile wrongfully credited the checks to an account other than an Associated account.

Associated’s case was submitted to the jury by Instruction No. 3 which was as follows:

“Your verdict must be for plaintiff if you believe
First, Plaintiff was a payee on the checks in evidence, and
Second, defendant permitted said checks to be deposited in an account other than plaintiff’s account, and
Third, defendant’s actions in permitting the deposit of said checks in an account other than plaintiff’s account were not in good faith and in accordance with the reasonable commercial standards applicable to the banking business, and
Fourth, said checks in evidence did not contain the authorized endorsement of plaintiff, and
Fifth, plaintiff was thereby damaged.”

At Mercantile’s request the court gave Instruction No. 4, which was as follows:

“Your verdict must be for defendant if you believe that the checks were made payable to John J. Roche as agent of Associated Underwriters, Inc.”

Instruction No. 4, was a modified form of MAI 33.05, and constituted the “third method” of conversing the plaintiff’s verdict instruction. See Oliver v. Bi-State Development Agency, 494 S.W.2d 49 (Mo.1973), and the comment following MAI 33.-01. It requires independent evidence in support of the ultimate fact which if found by the jury would defeat plaintiff’s submission. Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217 (Mo.1971).

At the time Instruction No. 4 was given the only objection was that “I don’t feel it correctly states the law” and “the wording is confusing and not in accordance with the statutes.” This obviously did not constitute “specific objections,” and therefore in order to preserve for review any error pertaining to this instruction it was necessary that there be set forth in the motion for new trial “specific objections.” Rule 78.07. However, the only assignment of error in the motion for new trial pertaining to Instruction No. 4 is that “there was no evidence to support the instruction,” and that “said instruction was an error of law in this case.”

Assuming that the negative assertion of no supporting evidence is sufficiently specific to meet the requirements of Rule 78.07, there unquestionably was evidence from which it could be found that the checks were made payable to Roche as agent of Associated, and in any event the contention is now abandoned because it is not presented in a point in Associated’s brief. The assignment that the instruction “was an error of law” falls far short of constituting a specific objection within the meaning of the Rule.

By its single point in its brief on this appeal Associated asserts Instruction No. 4 is erroneous because:

(1) It “erroneously relies upon a single section of the Uniform Commercial Code; Section 400.3-117 to the exclusion of other pertinent sections of the Uniform Commercial Code.”
(2) It “erroneously relieves the defendant bank of liability placed upon it by the Uniform Code in accepting instruments for deposit.”
(3) It “improperly failed to recognize the provisions contained in Section 400.3-302, 400.-3-304, 400.3-306 of the Uniform Commercial Code thus ignoring essential portions of the ‘holder in due course doctrine’ enunciated by the Code.”

Perhaps it could be said that these three contentions were intended to be examples of the “error of law” referred to in the motion for new trial, but if so they were never specifically called to the attention of the trial court. See Rule 78.07. As stated in Pasley v. Newton, 455 S.W.2d 43, 47 (Mo.App.1970), the allegations of error made to the trial court must be “sufficiently definite to direct the court’s attention to the particular acts or rulings asserted to be erroneous.” The purpose of these rules is to afford the trial court an opportunity to correct its errors without the delay, expense and hardships of an appeal. Skelton v. General Candy Co., 539 S.W.2d 605 (Mo.App.1976); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599 (Mo.App.1976). A party should not be entitled on appeal to claim error on the part of the trial court when that court was never called upon to rule the contention. Also, if the alleged error was not of sufficient magnitude to call for corrective action in the trial court it should be considered to be waived on appeal, and if it is of sufficient magnitude, but no corrective action was requested, the party should not be entitled to gamble on the jury result, and then if an adverse result is had obtain a second chance before a different jury. Also, to be considered is the interest of the opposing party to have an early end to the litigation.

In addition to the fact that none of these three contentions was presented to the trial court, each fails to comply to Rule 84.04(d) in that it does not specify wherein and why it is claimed that error occurred. For example, as to the first contention, the sub-point does not set forth or define the “other pertinent sections,” and it does not set forth wherein and why those “other” sections would result in the instruction being erroneous. As to the second contention, the sub-point does not set forth wherein or why the instruction relieved Mercantile of liability. As to the third contention, the sub-point does not set forth why, if the instruction ignored “essential portions” of the holder in due course doctrine, the instruction was rendered erroneous. See Thummel v. King, 570 S.W.2d 679 (Mo.banc 1978), for a thorough discussion of the applicable rules and impelling reasons for their existence and enforcement.

Notwithstanding that when we turn to the argument portion of the appellant’s brief in an attempt to determine precisely the contentions we incur the danger of becoming an advocate, we shall do so in a most liberal exercise of our discretion, but limited to the determination of whether there have occurred plain errors affecting substantial rights resulting in manifest injustice or miscarriage of justice within the meaning of Rule 78.08 so as to call for the exercise of the authority set forth in Rule 84.08.

When we look to the argument in Associated’s brief we find first the contentions that Roche “misappropriated substantial sums of money” and that he “cunningly altered the billings with the instruction to make the check[s] payable to John J. Roche, Agent.” However, we are not concerned in this appeal with whether Associated has any claim against Roche, but only whether Associated has a claim against Mercantile.

Associated states in its argument that Instruction No. 4 was “based upon § 400.3-117” of the Commercial Code, which is as follows:

An instrument made payable to a named person with the addition of words describing him
(a) as agent or officer of a specified person is payable to his principal but the agent or officer may act as if he were the holder; * * *.

It then argues that the instruction ignores other provisions of that Code pertaining to holders in due course.

In the Uniform Commercial Code in § 400.3-301, entitled “Rights of a holder,” it is provided that “The holder of an instrument whether or not he is the owner may transfer or negotiate it and * * * discharge it or enforce payment in his own name.” Roche was a holder of the checks, and he was authorized to negotiate, that is, cash, them, and that is what he did when he endorsed them and had the proceeds placed in the R. J. O’Brien & Co. account. We find no plain error resulting in manifest injustice or a miscarriage of justice in the absence of any objection to Instruction No. 4 on the basis that it ignored provisions of the Uniform Commercial Code pertaining to holders in due course.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: FONES, Justice. FONES, Justice.

text:
    OWENS ILLINOIS, INC., Forest Products Division and The Aetna Casualty and Surety Company v. Terry Allen LANE.
    Supreme Court of Tennessee.
    Dec. 27, 1978.
    Mayo L. Mashburn, Eddie L. Headrick, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for appellants.
    R. Jerome Shepherd, Colloms, Banks & Shepherd, Cleveland, for appellee.
   OPINION

FONES, Justice.

Defendants, employer and its workmen’s compensation insurer, appeal from the trial court’s award of benefits that included a ten percent permanent partial disability to employee’s foot. Defendants challenge the competency of the medical evidence, consisting solely of the deposition of Dr. Gary McAllister, relied upon in finding the permanent partial disability. The only issue is whether the physician’s testimony on the question of permanence attained the degree of certainty sufficient to sustain an award of permanent disability.

Plaintiff was working as a material handler at the time of his injury on June 21, 1977. He was engaged in setting boxes on a moving track that was about eighteen inches in height. He testified that he leaned forward and somehow caught his foot on a piece of metal hanging down from the track; that in extracting his foot to avoid injury from the moving track he fell backwards and “could feel a bop in the back of my heel.” He went to Dr. Jones on the 23rd day of June and he said his foot would be alright. He then went to Dr. Johnson, who referred him to Dr. McAllister, an orthopedic surgeon. Doctor McAllister examined him on June 28, 1977, and found that he had a small non-displaced fracture of carpal bone and a non-displaced fracture in the right heel bone, or the oscaleus. A short leg cast was applied on that date, removed on August 8, 1977, and on August 28 employee was able to return to work, according to Dr. McAllister.

In his deposition, Dr. McAllister at first testified that based on the American Medical Association green rating book, plaintiff suffered a disability of “about 10 percent to his heel or to the foot or something.” On cross-examination, however, when asked whether the disability was permanent within a reasonable degree of medical certainty, Dr. McAllister responded, “Well, it’s just a possibility.” Further, when questioned as to the chances that the plaintiff would have a permanent disability, Dr. McAllister replied that there was a forty percent chance that he would and a sixty percent chance that he would not have a permanent disability.

There are a number of Tennessee cases that discuss the question of the degree of certainty of medical testimony required to establish a causal connection between a physical impairment or injury and a com-pensable accident. See, e. g., Lynch v. LaRue, 198 Tenn. 101, 278 S.W.2d 85 (1955); P & L Const. Co., Inc. v. Lankford, 559 S.W.2d 793 (Tenn.1978); Cas Walker’s Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745 (1965); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947 (1964); Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675 (1961); Mason & Dixon Lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939 (1960); Morrison v. James, 201 Tenn. 243, 298 S.W.2d 714 (1957); Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908 (1955).

In “causal connection” cases, facts and circumstances revealed by lay testimony may often have relevancy upon the ultimate determination of that issue, and therefore it is not exclusively within the realm of medical science. See Lynch v. LaRue, supra, and P & L Const. Co., Inc. v. Lankford, supra. In Lynch the Court held that medical testimony that cerebrovascular disease “could have been” caused by an electric shock was not legally sufficient, although it may be used in conjunction with other evidence. In Lankford, Mr. Justice Cooper restated the Lynch rule as follows:

“In a workmen’s compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident ‘could be’ the cause of the plaintiff’s injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury.” P & L Const. Co., Inc. v. Lankford, supra at 794.

There is a comprehensive annotation in 135 A.L.R. 516 (1941) entitled “Sufficiency of expert evidence to establish causal relation between accident and physical condition or death.” The cases cited support the conclusion that medical testimony as to the possibility of a causal connection between an accident or subsequent death or impaired physical condition will not support a finding of such relationship. Expressions such as “might have”, “may have” or “could have” are classified as being in the “possibility” category. But, the likelihood or probability of a causal connection has been held sufficient in some jurisdictions, and rejected in others. This category includes expressions such as “probably”, “likely” and “apt.” The expressions that find general acceptance as sufficient to establish causal connection in most jurisdictions are, “to a reasonable certainty” or “to a reasonable medical certainty.” See Annot., 135 A.L.R. 541 et seq. and cases cited therein.

The determination of the issue of permanency of all but the most obvious injuries, such as loss of a member, is peculiarly within the realm of scientific knowledge. Thus, an award of permanent partial disability for an injury such as plaintiff Lane sustained must be supported by expert medical testimony that the resulting condition is permanent. See Bishop Baking v. Forgey, 538 S.W.2d 602 (Tenn.1976) and Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684 (1971).

The plaintiff in a workmen’s compensation suit, and all civil actions generally, has the burden of proving his case “in all its parts” by a preponderance of the evidence. E. g., Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610 (1948). It necessarily follows that a plaintiff must establish the permanency of his disability by a preponderance of the evidence which must be accomplished through expert medical testimony. A fortiori, any expert medical witness presented must give testimony that preponderates in favor of permanency to qualify as having probative value on that issue. In short, the medical witness, in expressing his opinion, must use language that means that the medical factors that indicate permanency of disability outweigh those to the contrary.

In Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241 (1962), the employee had been scalped from the eyebrows back to the center of the top of his head. Doctor Pearce’s testimony to support permanency, awarded by the trial judge, was qualified as follows: (1) “Very possibly . but I couldn’t tell you that, and nobody else can.” (2) “I can’t say whether it will or won’t, it would be more subject to it, there is more of a possibility of it.” (3) “[Q.] Could or might it ulcerate?” “A. Certainly.” Chief Justice Dyer, writing for the Court evaluated Dr. Pearce’s testimony as follows:

“This evidence amounts to saying it might or it might not. Such is conjecture and at best would support only a likelihood or possibility of these things every happening.” 362 S.W.2d at 243.

Doctor McAllister’s testimony that it was “just a possibility” and that chances were forty percent for and sixty percent against permanency clearly fails to preponderate in favor of permanency.

The judgment of the trial court awarding ten percent permanent partial disability to the foot is reversed. Costs are adjudged against plaintiff.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

OPINION ON PETITION TO REHEAR

FONES, Justice.

In an earnest and respectful petition to rehear Plaintiff, Lane, contends that we overlooked his testimony and that of his wife to the effect that he still had pain in his foot at the time of the trial; that continued pain, five months after “all transient tendonitis” ceased, points to a “permanent problem” with his heel; that this lay testimony, plus the medical testimony of a forty (40%) percent probability of permanency, is sufficient to support the trial judge’s award.

Plaintiff asserts that P & L Const. Co., Inc. v. Lankford, supra, squarely authorizes such consideration of lay testimony.

The issue under examination in Lankford was whether a causal connection existed between the compensable accident and the resulting injury. The issue here is whether plaintiff’s compensable injury is permanent in duration. For the most part, the equivocal language used by medical experts has appeared in cases involving the issue of causal connection rather than permanency, and that is the reason those cases were included in the opinion. A careful reading of the opinion will reflect that we made the point that lay testimony is often relevant upon the issue of causal connection but that the issue of permanency (except for the most obvious injuries such as loss of a member) must be established by expert medical testimony, being exclusively within the realm of medical science.

For additional clarity, perhaps, it is well to restate the rule that once permanency of an injury is established by expert medical testimony, lay testimony becomes relevant on the issue of the extent of the compensable disability award. That is true because the extent of disability includes a consideration of factors not exclusively within the realm of medical science, together with the anatomical disability that is the province of experts. See Employers Ins. Co. of Ala. v. Heath, 536 S.W.2d 341 (Tenn.1976). The petition to rehear is denied.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


author: SUMMERS, Judge.

text:
    Troy BERRY, by Father and Next Friend, Charles Berry, Plaintiff-Appellant, v. William A. WHITWORTH, Sr., William Whitworth, Jr., Hayden McCary and Mrs. Hayden McCary, Defendants-Appellees. Charles BERRY, Plaintiff-Appellant, v. William A. WHITWORTH, Sr., William Whitworth, Jr., Hayden McCary and Mrs. Hayden McCary, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    June 1, 1978.
    Certiorari Denied by Supreme Court Sept. 18, 1978.
    Petition to Reconsider Denied Oct. 30, 1978.

      Lewis K. Garrison, Memphis, for plaintiffs-appellants.
    James S. Wilder, III, Somerville, Buchig-nani & Greener, Memphis, for defendants-appellees.
   SUMMERS, Judge.

These two cases were consolidated on appeal because they concern the same litigants and encompass the same set of facts.

Charles Berry, plaintiff-appellant, brought suit individually and as next friend of his minor son, Troy Berry, against William Whitworth, Sr., William Whitworth, Jr., Hayden McCary and Mrs. Hayden McCary, defendants-appellees. Plaintiff charged defendants with responsibility for the injuries, disfigurement, mental anguish and physical pain sustained by his son. He also sued for medical costs expended on behalf of his son and the loss of services of his son. The incident in which the injury occurred was an explosion of blasting caps.

The trial judge entered an order of non-suit as to the defendants, Hayden McCary and Mrs. Hayden McCary, and they are not before this court.

A motion to dismiss and/or for a summary judgment in favor of the Whitworths was sustained by the trial judge, and this appeal resulted.

On March 22, 1976, Troy Berry and Steven McCary, both fourteen years of age, were riding a motorcycle owned by Steven in the town of Hickory Withe, Tennessee. After visiting the local recreation hall, they ventured to a locked metal or tin building which was located close by. The building had a padlock on the only door, but the boys found a hole in the floor in the back of the building. McCary stated that Berry entered the building through the hole; Berry testified that he merely reached his arm through the hole and felt around inside the building. In either event, Berry took some fuses and blasting caps from the building owned by Whitworth, Sr.

After acquiring these blasting caps and fuses illegally, they went to a pond close by and shot or exploded a number of the caps by inserting the fuse therein and igniting them. After leaving the area around the pond, they went to the barn on the McCary property and ignited 20 or 30 more caps. McCary’s mother called him into the house for dinner, and Berry returned to his residence where he exploded one cap in a sandbox. After he ignited the second fuse, he realized that he had placed it too close to his house; when he tried to remove the cap, it exploded and damaged his left hand.

Rule 56 of the Tennessee Rules of Civil Procedure provides for the granting of a summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This was designed to obviate the need for a full trial when there was no dispute regarding material facts.

Judge Nearn, writing for the Court of Appeals in Stone v. Hinds, 541 S.W.2d 598 (1976), said:

In ruling on motions for summary judgment both the Trial Court and this Court must consider the matter in the same manner as a motion for a directed verdict made at the close of plaintiff’s proof; i. e., we must view all affidavits in the light most favorable to the opponent of the motion and draw all legitimate conclusions of fact therefrom in that favor. If after so doing a disputed issue of material fact is made out, the motion must be denied.

In the instant case the only disputed fact was whether Troy Berry, when he burglarized the tin shed, actually placed his entire body in the shed or merely reached his hand through an opening to take the blasting caps and fuses. In any event he took the items illegally that were exploded to his detriment, and in his deposition he made the following admission:

Q. State to the Court what you got out of that building?
A. I got a little box.
Q. A little box of what?
A. Silver things, about a inch and a half long, I didn’t know what they were.
Q. Why did you get them?
A. I don’t know.
Q. Did you have any right to get them?
A. No, sir.
Q. Did you steal them?
A. Yes, sir.
Q. Did you get anything other than the little box?
A. No, sir.

While it is true that negligence, contributory negligence and proximate cause are ordinarily issues to be decided by the jury, they can be withdrawn from the jury and decided by the court in those cases where the facts are established by evidence free from conflict and the inference from the facts is so certain that all reasonable men, in the exercise of a free and impartial judgment, must agree upon. Frady v. Smith, Tenn., 519 S.W.2d 584 (1974); Spain v. Livingston, 59 Tenn.App. 346, 440 S.W.2d 805 (1968). This court believes the case at bar falls within the above exclusion from a jury determination.

Plaintiff contended that defendant Whit-worth Sr. was in violation of T.C.A. 53-2413 and 53-2536 and State Fire Marshall Regulation No. 17B, Volume 1 through X, 1971-1972 Edition, and had allowed the storage facilities to become run down. Plaintiff further alleged that the motion for summary judgment relied on the case of Lawrence v. King, 184 Tenn. 151, 197 S.W.2d 548, a 1946 Supreme Court case, which was handed down prior to the enactment of State Regulation 17B.

It is a well settled proposition of law that failure to perform a statutory duty is negligence per se, and if injury is the proximate result or consequence of this negligent act, there is liability. However, the person suing must be such a person as is within the protection of the law and intended to be benefited thereby. The case of Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964), defines the law on this point:

In order to found an action on the violation of a statute, or ordinance, * * * the person suing must be such a person as is within the protection of the law and intended to be benefited thereby * * We think that one not a beneficiary of a statute may neither base an action nor a defense on a violation thereof. Carter v. Redmond, 142 Tenn. 258, 263, 218 S.W. 217, 218.

Also see: Green v. Crescent Amusement Co., 32 Tenn.App. 554, 223 S.W.2d 201 (1949).

An analogous situation would be a person housing his car in a locked garage because it had faulty brakes. If a culprit breaks in, steals the ear and later is injured when he wrecks the ear, could he then sue and recover from the owner? The answer is obviously in the negative.

In the instant ease, there was a violation of a state ordinance, but this court cannot find that this violation was the proximate cause of the injury.

In Pardue v. City of Sweetwater, 54 Tenn.App. 286, 390 S.W.2d 683 (1965), a minor, aged 11 years and 8 months, in the company of three other boys went into the city property to play around the defendant’s water tank and to climb in. After his playmates had climbed the tank and descended, the minor climbed about half-way up the ladder, started down and fell, receiving serious injuries to his arms and back.

Justice Cooper in analyzing the position of a land owner and his responsibility as to his duty in regard to a minor child wrote:

[A] possessor of land is not under a duty to prevent every possibility of harm but only to exercise due care as to those risks which he should realize are unreasonable] great and threaten serious bodily harm in a way unlikely to be appreciated by children whose trespass he should foresee. The ability to appreciate danger varies, of course, with the age of the child, and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. See Prosser on Torts (2d Ed. 1955) 441, 443-444; 2 Harper and James, The Law of Torts, 1453-1454. . . .

Whitworth, Sr., the owner of the tin shed, had a padlock on the only door to the building. The shed was surrounded by vegetation, and the hole in the back was not visible to anyone passing by. The minor knew he was on another’s property and had no business being in the shed.

We find that the minor was the cause of his own injuries. He was over fourteen years of age, knew what he had stolen and appreciated that dynamite was a dangerous substance. This is not the case of a child lured into danger by the creation of an attractive nuisance.

Therefore, it is the opinion of this court that the ruling of the trial court granting a summary judgment should be sustained. The costs are adjudged against the plaintiff.

MATHERNE and NEARN, JJ., concur.


author: LEWIS, Judge.

text:
    MOORE-HANDLEY, INC., Plaintiff-Appellee, v. ASSOCIATES CAPITAL CORPORATION, John C. McLemore, Substitute Trustee, and Robert D. Hunt and wife, Mary M. Hunt, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    July 23, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      William L. Rosenberg, Denny, Lackey & Chernau, Nashville, for defendants-appellants.
    Henry A. Seligmann, Nashville, for plaintiff-appellee.
   OPINION

LEWIS, Judge.

Appellants, Associates Capital Corporation, John C. McLemore, Robert D. Hunt and wife, Mary M. Hunt, appeal from the judgment of the Chancery Court for Sumner County holding that appellee’s, Moore-Handley, Inc., furnisher’s lien has priority over the claim of appellants.

We adopt the pertinent parts of the Chancellor’s Finding of Facts:

“On or about the 24th day of November, 1975, Paul B. Frederick applied to Complainant, Moore-Handley, Inc. for credit for the purpose of purchasing building materials for a house. * * *.
“On December 20, 1976, Paul B. Frederick executed a deed of trust in favor of Investors Savings and Loan to secure $37,500.00 indebtedness, which was properly recorded on the 20th day of December, 1976. A second deed of trust was executed by Frederick in favor of Associates Capital Association to secure an indebtedness of $17,076.14 which was recorded on February 11, 1977. The last day of delivery of material by Moore-Handley, Inc. was on March 8,1977. Notice of Furnisher’s lien was filed by Moore-Handley, Inc. in the Register’s Office of Sumner County, Tennessee, on April 19, 1977, and is regular in every respect. On May 4, 1977, the Complaint was filed by Moore-Handley, Inc. to enforce a lien against the property by attachment in the amount of $1,823.22. The attachment and summons were served on May 6, 1977, upon the defendants, I. D. Lewis, .Trustee, and Investors Savings and Loan Association. On May 6, 1977, Associates Capital foreclosed the second deed of trust and bid the property in subject to all unpaid taxes and the prior deed of trust. Service of process was had upon Associates Capital on May 26, 1977, and on John C. McLemore on August 5, 1977.
“On October 25, 1977, Robert D. Hunt and wife, Mary M. Hunt, filed an Intervening Petition which alleged that they had purchased Tract I of said property from Associates Capital for a valuable consideration on September 27,1977, that they had no knowledge of the case at bar, that a Lis Pendens Notice had not been filed and in their answer prayed that the attachment be dismissed. The case was set for trial by the Court on September 23, 1977, for October 81, 1977.”

Appellants assign as error the Court’s holding that the furnisher’s or mechanic’s and materialman’s lien of record in the Register’s Office for Sumner County was notice to all the world sufficient to subordinate the interest of appellants, Robert D. Hunt and wife, Mary M. Hunt, bona fide purchasers for value of a portion of the property in question without actual notice.

It is their insistence that a lis pendens, pursuant to T.C.A. § 20-301, is required in all cases in order to subordinate the interest of bona fide purchasers for value without actual notice.

Appellee, pursuant to T.C.A. §§ 64-1115 and 64-1117, duly perfected its lien.

The pertinent part of § 64-1115 is as follows:

[S]aid lien shall continue for a period of ninety (90) days from the date of said notice in favor of such subcontractor, journeyman, furnisher, mechanic, or laborer, and until the final termination of any suit for enforcement brought within that period, [emphasis ours]

Suit was commenced by appellee within the ninety (90) days.

T.C.A. § 64-1117 requires registration of the sworn statement of the amount due, etc., and makes the registration “notice to all persons of the existence of such lien.”

The sole question we are required to answer is whether or not the appellee is required, in addition to complying with every requirement of the mechanic’s and materi-almen’s statute, to file lis pendens pursuant to T.C.A. § 20-301. We are constrained to answer in the negative.

Appellants rely on Land Developers, Inc. v. Maxwell, 537 S.W.2d 904 (Tenn.1976), and American National Bank and Trust Company v. Wilds, 545 S.W.2d 749 (Tenn.Ct.App.1976), cert. denied, id. (Tenn.1977), in support of their position. These cases are distinguished from the instant case in that no liens were filed, no notice of any kind was given to bona fide purchasers of any lien or encumbrance against the property.

By the express terms of T.C.A. § 64-1115, the appellee’s lien continued, upon suit being filed, until the final termination of any suit for enforcement. Appellee complied with T.C.A. § 64-1117, and Appellants Hunt were therefore put on notice of the lien and suit.

We hold that it is unnecessary, when compliance has been had with T.C.A. §§ 64-1115 and 64-1117, to go further and file the notice of abstract pursuant to T.C.A. § 20-301.

In no event can appellants, Associates Capital and John C. McLemore, be heard to complain. Associates was served on May 26, 1977, and McLemore on August 5, 1977, with the complaint to enforce the lien. Notwithstanding that they had actual notice of the suit to enforce the lien pending against them, Associates conveyed by warranty deed the property in question to Appellants Hunt.

The assignment of error is overruled and the judgment of the Chancellor is affirmed. The costs will be paid by the appellants.

AFFIRMED.

SHRIVER, P. J., and TODD, J., concur.


text:
    CREATIVE DISPLAYS, INC. OF KNOXVILLE, Plaintiff-Appellee, v. The CITY OF PIGEON FORGE et al., Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Sept. 6, 1978.
    Certiorari Denied by Supreme Court Dec. 11, 1978.
    Gary R. Wade, Ogle, Wade & Vickers, Sevierville, for defendant-appellant.
    Lawrence P. Leibowitz, Knoxville, for plaintiff-appellee.
   OPINION

LEWIS, Judge.

The Board of Commissioners of defendant, City of Pigeon Forge (hereafter City), on May 22, 1973, passed Ordinance No. 62. Section 5 of that Ordinance provided:

“OUTDOOR BILLBOARDS. It shall hereafter be unlawful to erect any outdoor billboard, which is herewith defined as a sign which directs attention to a business, commodity, service, entertainment, or other activity, conducted, sold or offered elsewhere than on the premises upon which the sign is located, in any zoning district as defined in the Zoning Ordinance of the City of Pigeon Forge, Tennessee. Provided further, that any outdoor billboard as defined in this section which is presently situated in the zoning district shall, within two years (2 yrs.) from the date of passage of this ordinance, be removed.”

The Ordinance was later amended changing “within two years (2 yrs.)” to “within three years (3 yrs.)”.

In 1974 the City passed Ordinance No. 97 to include “flashing signs” within the prohibitions of Ordinance No. 62.

On April 1, 1976, the City, by letter, “reminded” plaintiff that the Pigeon Forge Board of Commissioners had decided that a three-year amortization was more than adequate and had established a final deadline of May 22,1976, for removal of signs not in compliance with the Ordinances.

On May 20, 1976, plaintiff filed its complaint which it later amended, alleging that Ordinances Nos. 62 and 97 were ultra vires because they violated T.C.A. § 13-701 et seq., specifically § 13-708, and were in violation of the First Amendment to the United States Constitution.

The City answered denying all material allegations.

Plaintiff filed a motion for summary judgment “on the grounds that the Ordinances were ultra vires inasmuch as they violate § 13-701 et seq., T.C.A., specifically § 13-708, which provides for the continuation of non-conforming uses.”

After a hearing, the Chancellor sustained the motion for summary judgment on two grounds, (1) that T.C.A. § 13-708 (Supp. 1978) provided for the continuation of nonconforming uses which existed prior to the establishment of the zoning ordinances, and (2) that the ordinances as they related to the property of plaintiff were unconstitutional.

The City appealed and assigned as error:

1. That the Court erred in sustaining the motion for summary judgment on constitutional grounds.
2. That the Court erred in sustaining the motion on the ground that the ordinance was in conflict with T.C.A. § 13-708.

The Chancellor properly sustained the motion for summary judgment on the ground that T.C.A. § 13-708 (Supp.1978), provides for continuation of non-conforming uses which existed prior to the establishment of the zoning ordinance.

The pertinent part of T.C.A. § 13-708 (Supp.1978) is:

13-708. Enforcement of ordinances— Remedies. — The chief legislative body may provide for the enforcement of any ordinance enacted under this chapter. A violation of any such ordinance is hereby declared to be a misdemeanor. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is or is proposed to be used in violation of any ordinance enacted under this chapter, the building commissioner, municipal counsel or other appropriate authority of the municipality, or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies, institute injunction, mandamus or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use, or to correct or abate such violation, or to prevent the occupancy of said building, structure or land.
In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions of any governmental agency of this state or its political subdivisions, or where such land area is covered by zoning restrictions of a govemmen-tal agency of this state or its political subdivisions and such zoning restrictions differ from zoning restrictions imposed after the zoning change, then any industrial, commercial or business establishment in operation, permitted to operate under zoning regulations or exceptions thereto prior to the zoning change shall be allowed to continue in operation and be permitted provided that no change in the use of the land is undertaken by such industry or business.
* * * * * *
The provisions of the preceding three (3) paragraphs shall apply only to land owned and in use by such affected business, and shall not operate to permit expansion of an existing industry or business through the acquisition of additional land.

There is no dispute that plaintiff’s business was in operation prior to the passage of Ordinances No. 62 and 97.

It is the City’s contention that plaintiff does not come within the protection afforded by T.C.A. § 13-708 (Supp.1978) since it is not the fee owner of the land but only has a leasehold interest. It contends, in essence, that to come within the protection afforded for non-conforming uses you must be the owner of the fee.

To construe T.C.A. § 13-708 (Supp.1978) in this manner would be to prevent a nonconforming use by a lessee with a 99-year lease while allowing his next door neighbor to continue the same non-conforming use because he owns the fee.

We do not so construe the statute; nor can we imagine the Legislature having any such intent at the time of passage.

The Chancellor found from the pleadings and affidavits, and the City admits in its brief, that the plaintiff owns a leasehold interest in the land affected by the ordinances. A leasehold is defined as “[a]n estate in realty held under a lease. * Black’s Law Dictionary, 1036 (4th ed. rev. 1968).

We hold that the plaintiff had such an interest in the land and was operating such a business as was intended to be protected by T.C.A. § 13-708 (Supp.1978).

Since we are able to- dispose of this case on nonconstitutional issues, it is not necessary that we consider the assignment regarding the constitutional question.

The judgment below, insofar as it sustains the motion on the ground that T.C.A. § 13-708 (Supp.1978) provides for continuation of non-conforming uses as affects the plaintiff, is affirmed. Costs are assessed to appellants.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


author: DROWOTA, Judge.

text:
    Wylodean Riley McCORMACK, Ruth Riley Shearon, Iva Riley Fibel Korn, and Addie Sue Riley, Plaintiffs-Appellants, v. James Elvis RILEY, Danny Riley, Jeanette Riley Adams, Elizabeth Sue Riley Raymer, and Paul E. Riley, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 27, 1978.
    Certiorari Denied by Supreme Court Feb. 12, 1979.

      William B. Cain, Cain & Moore, Columbia, for plaintiffs-appellants.
    William Keaton, Keaton, Turner & Pelu-so, Hohenwald, Ray Hollis, Waynesboro, for defendants-appellees.
   OPINION

DROWOTA, Judge.

This is an appeal from a directed verdict upholding the will of Elvis C. Riley. At issue on appeal is the propriety of the directed verdict and of the order at trial excluding all evidence of unsoundness of mind except for the two year periods immediately preceding and following the time of execution of the will. We reverse on the evidentiary question and remand for a new trial.

The will in question was admitted to probate in common form. Appellants, the four daughters of the testator, initiated this action against the testator’s sons and the grandchildren of a deceased son, contesting the will on grounds of unsoundness of mind and undue influence. There is no dispute the will was executed May 31, 1952, in compliance with the statutorily prescribed formalities. The record discloses that thirty days after his wife died of cancer the decedent, his eldest son James Riley, defendant here and executor under the contested will, and a cousin went to the office of an attorney where the will in issue was drawn and executed. Thereafter the will was kept in a bank safety deposit box under the name of the decedent and later transferred to a deposit box under the name of the defendant James Riley where it remained until offered for probate.

After discussion in chambers with counsel the trial court limited evidence of unsoundness of mind to the two year period immediately before execution of the will and the two year period immediately after execution. The most damaging effect to plaintiffs of this limitation was to exclude any evidence of the decedent’s mental problems from 1932 until 1950, including hospital records made in 1945 while the decedent was being treated at the Veterans’ Administration Hospital in Murfreesboro for psychosis and cerebral arteriosclerosis. Plaintiffs argue, and we consider it significant, that the evidentiary restriction “effectively cut the heart out of the plaintiffs’ case.” While plaintiffs also urge that the trial court committed error by sustaining defendants’ motion for directed verdict, we do not reach that assignment of error because we agree with plaintiffs that the evidence which they could introduce was improperly circumscribed.

The law bearing on testamentary capacity in Tennessee is settled and generally not disputed by the parties. In Melody v. Hamblin, 21 Tenn.App. 687, 115 S.W.2d 237 (1937), it is stated:

[T]he testator must be of sound and disposing mind and memory, which is such mind and memory as enables him to know and understand the business in which he is engaged at the time of making his will, i. e., to recollect the property which he is about to dispose of, the manner of distributing it, and the objects of his bounty, and to comprehend and appreciate the claims to which he ought to give effect.

Id. at 694, 115 S.W.2d at 242. To prove the requisite mental condition at the time of execution, “evidence of the testator’s mental condition and physical condition before and after making the will, within reasonable limits, is received.” [Emphasis added.] Id. at 695, 115 S.W.2d at 242. The reasonableness of those limits is within the discretion of the trial court and varies, of course, with the facts of each case. “Evidence of prior mental condition may have much, little or no probative value depending upon the nature and effect of the malady, whether general, habitual, continuous, chronic or progressive or due merely to temporary, superficial, accidental, occasional or intermittent causes of conditions.” American Trust & Banking Co. v. Williams, 32 Tenn.App. 592, 603, 225 S.W.2d 79, 84 (1948).

This appeal raises the question of the reasonableness of the limits placed on the admissibility of plaintiffs’ evidence, in essence a question of relevance. The trial judge concluded that the proffered evidence of a history of mental problems and treatment was too remote in time and was of no probative value.

We are unable to agree that the excluded evidence was of no probative value. The mental condition of the testator at the time of execution is a material issue, which may be proved indirectly by evidence of the testator’s mental condition prior to and subsequent to the time of execution. Melody, supra; American Trust, supra. Clearly, the excluded evidence before us is such circumstantial evidence and is therefore of some probative value. We are not persuaded in this regard by defendants’ argument that the excluded evidence is logically irrelevant because the examining physicians had concluded and noted on the hospital records that the decedent was competent. It is beyond question that the physician’s conclusion is not binding on this Court on the question of testamentary capacity.

Having decided the excluded evidence has some probative value we now must address the conceptually distinct question whether the excluded evidence has sufficient probative value to warrant its admission despite the costs attending such admission. It is to this latter consideration that we understand the trial judge to have referred when he excluded the evidence because of remoteness in time. Not all logically relevant evidence is admissible. Thus evidence which would advance the inquiry but would also inflame or unduly distract the jury or require an undeserved expenditure of judicial time or unfairly surprise the opponent may not be admissible. See McCormick on Evidence § 185 (2d ed. 1972). The probative weight of evidence must be balanced against these attendant costs in determining whether that evidence should be admitted.

One possible cost which we can identify as attending admission of the proffered evidence in the present case would be the added expenditure of judicial time. This cost we assess as slight, however, because the hospital records are not lengthy (consisting of 14 documents) and were properly qualified under the Uniform Business Records as Evidence Act.

The most important “costs” are the dangers of unduly arousing the emotions of prejudice, hostility or sympathy and unduly distracting the jury from the main issue. McCormick on Evidence 2nd Ed. § 185, p. 439. In the present case, there is a minimum of the dangers just mentioned; and this can be readily eliminated by a proper instruction from the Court as to the assignment of weight to the evidence.

Balanced against the costs mentioned above is the probative weight of evidence which suggests evolving and substantial mental afflictions. The probative weight is enhanced by the permanent nature of the illness, arteriosclerosis, which underlay the mental afflictions. See, American Trust, supra.

We do not suggest that the excluded evidence would necessarily establish a lack of testamentary capacity at the time of the execution of the will or would establish unsoundness of mind prior to the execution such that the presumption of capacity would be defeated and the burden shifted to the proponents of the will to prove capacity. We hold only that the excluded evidence was relevant and sufficiently probative to be admissible for the consideration of the jury.

We conclude therefore that the proffered evidence was improperly excluded and we reverse and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

SHRIVER, P. J., and TODD, J., concur.