author: FINCH, Judge. BARDGETT, Judge

text:
    FARMERS INSURANCE EXCHANGE, Plaintiff-Respondent, v. FARM BUREAU MUTUAL INSURANCE COMPANY and Norma Jane Carty, Defendants-Appellants, and William E. Johnson et al., Defendants.
    No. 58851.
    Supreme Court of Missouri, En Banc.
    May 12, 1975.

      Schroff, Keeter & Glass, Inc., Bob J. Keeter, Springfield, for plaintiff-respondent.
    Donald E. Bonacker, Springfield, for defendants-appellants, Farm Bureau Mut. Ins. Co. and Norma Jane Carty.
   FINCH, Judge.

This is a declaratory judgment action wherein Farmers Insurance Exchange (Farmers) requested a determination that an automobile insurance policy previously issued by it to defendant Norma Jane Carty had not been renewed and therefore did not provide coverage for an accident between her car and an automobile occupied by the defendants Johnson. Farm Bureau Mutual Insurance Company (Farm Bureau) was named as a defendant because it had a policy of insurance on the Carty automobile at the time of the collision. The Johnsons, most of whose claims had been settled by Farm Bureau, did not appear and defaulted. Farm Bureau sought by counterclaim to establish pro rata liability on the part of Farmers with respect to claims arising from this accident and Mrs. Carty counterclaimed to obtain certain benefits not paid by Farm Bureau. The trial court, hearing the case without a jury, found for Farmers on its petition and against Mrs. Carty and Farm Bureau on their counterclaims. The latter two parties then appealed to the Missouri Court of Appeals, Springfield District, which reversed, holding that the Farmers policy had been renewed and that the trial court should compute its liability to Mrs. Carty and Farm Bureau and enter judgment accordingly. On application of Farmers the case was ordered transferred to this court. We will now decide it as though here on direct appeal. Art. V, § 10, Mo.Const., V.A.M.S. We affirm the judgment of the trial court.

The evidence supports the recital of facts which follows. For several years Mrs. Carty lived at Point Lookout, Missouri, but in August of 1971 she moved to Mansfield, Missouri. During the time when Mrs. Carty lived in Point Lookout she had an automobile insurance policy with Farmers that was serviced by Gerald Huff, Farmers’ agent in Branson. By its terms it was to expire on November 18, 1971, unless the policy was renewed. After she had moved to Mansfield, Mrs. Carty received a premium notice from Farmers but after considering the matter decided not to renew that policy and did not mail in the premium. After passage of the premium due date, Farmers, as was its regular business custom, sent Mrs. Carty a printed expiration note which stated:

“Although the due date has passed you can still accept the Company’s offer to renew your policy. Payment within 15 days after due date will renew your policy without interrupation of coverage.”

Meanwhile, Mrs. Carty had applied on November 16, 1971, to Farm Bureau for coverage and a policy was issued by that company on November 22, 1971, effective November 18, 1971. Mrs. Carty testified that when she purchased the Farm Bureau policy she had no intention to continue insurance with Farmers and knew that its policy would lapse.

On November 24, 1971, Mrs. Carty was involved in a collision with the automobile of the Johnson family. Mrs. Carty was injured and hospitalized temporarily in Clinton, Missouri, and on November 27, 1971, was transferred to a hospital in Kansas City.

On November 29, 1971, agent Huff read a newspaper account of the accident in which Mrs. Carty was involved. He promptly verified that she was the same person whom his company had insured. In so doing he became aware from his records that the renewal premium was then several days past due and that the policy would not cover the accident if the premium thereon was not paid within the grace period which would expire at midnight on December 3, 1971.

He discussed this information with Loren Duncan, a real estate salesman who had a desk next to Huff’s in the office of a real estate company in Branson, Missouri, According to Huff, when he and Duncan talked about Mrs. Carty’s situation, both on November 29, 1971, and subsequently, they discussed the possibility that she might have paid her premium by mail, as was her custom, or that she might have secured other insurance.

On the afternoon of December 1, 1971, Duncan asked Huff if he had been able to ascertain whether Mrs. Carty had paid her premium and was told he had not. Duncan then inquired as to the amount of the renewal premium and was told by Huff that under an optional payment plan the installment payable at that time would be $55. Duncan then gave Huff his signed check which was made payable to Farmers in the amount of $55. Duncan stated to Huff that “this way we know she has insurance.” Huff, on a printed form supplied by Farmers, made out an insurance receipt dated December 1, 1971, at 3:00 p. m. which acknowledge receipt from “Loren Duncan for Norma J. Carty” of the sum of $55 as the first payment on the renewal premium of the policy in question. Since the grace period still had some time to run, Huff and Duncan agreed that Huff would hold the check rather than mailing it in that afternoon.

After Duncan received the receipt, he immediately took it, without the knowledge of Huff, to a Mr. Jack Justice in Branson for delivery to Mrs. Carty. Mr. Justice was the father-in-law of a daughter of Mrs. Carty. Later that evening (about 6:00 p. m.) his son and daughter-in-law arrived at his house and he gave the receipt to them. They returned to Kansas City early the next day (December 2) and delivered the receipt to Mrs. Carty at the hospital. She then wrote out her check to Duncan for $55 and gave it to her daughter to mail to him along with a thank-you note.

Huff testified that the understanding with Duncan was that “if the premium had been paid or if she had taken out other insurance that I would give him his check back and he would give me the receipt back.” Duncan, on the other hand, testified that prior to the time he gave his check to Huff and received the receipt therefor, he and Huff had no discussion as to whether Mrs. Carty might have purchased insurance from another company and that it was two or three days later when they first discussed that possibility. He testified that Huff told him only that he would get his check back if Mrs. Carty had paid Farmers. However, on cross-examination, Duncan testified that when he talked to Mr. Jack Justice at the time he delivered the receipt to him on the afternoon of December 1, „ 1971, he told Justice that he and Mr. Huff had had a discussion about whether Mrs. Carty might have obtained other insurance. He also conceded that in his earlier deposition he had testified that his purpose in making the payment was to make sure that Mrs. Carty had some kind of insurance coverage for the accident.

On December 2, 1971, at about 2:30 p. m., Huff told Duncan that he still had not been able to obtain information about Mrs. Carty’s insurance. At that time Huff had not mailed in Duncan’s check to the company. Duncan then said to Huff that he should go ahead and send in the check so it would get to the home office in time. Huff testified that he then stated to Duncan, “Due to the fact that I have the check and you have the receipt which is dated before the grace period has run out, it is valid as far as that is concerned.” To which Duncan replied, “Well, in that case, why don’t you go ahead and send the check in with a note explaining if the premium has been paid by Mrs. Carty already for them to send my check back.”

At about 6:00 p. m. on that same afternoon, Huff received a telephone call from a Farmers representative who told him that Mrs. Carty had obtained other automobile insurance and that Huff should retrieve the receipt he had given. Huff immediately called Duncan and after advising what he had learned, asked for return of the receipt and offered to return Duncan’s check. Duncan replied that he had delivered the receipt to Mrs. Carty and could not return it. This was Huff’s first knowledge that Duncan had not retained possession of the receipt.

On December 3, 1971, and again on December 7, 1971, a representative of Farmers tendered Duncan’s check to him but he refused in each instance to accept it. On December 7, the check was left by the Farmers representative on Duncan’s desk.

The trial court found that “[O]n days prior to December 1, 1971, and after November 29, 1971, as well as on December 1, Mr. Huff and Mr. Duncan had discussed the fact that Mrs. Carty might have paid the premium by mail, as was her custom, or might have secured other insurance.” The court went on to find that “[I]n any event, Mr. Duncan decided to pay Mrs. Carty’s premium to insure that she had coverage concerning the collision in which she was involved.” The court then held that Duncan’s acceptance of Farmers’ offer to renew during the grace period was conditional and was not to be effective if Mrs. Carty had secured other insurance coverage. Since the evidence disclosed that she had obtained a policy from Farm Bureau, the court held that the Farmers policy was not renewed, was not in force at the time of the accident and Farmers was not obligated to defend or pay any judgments rendered against Mrs. Carty.

In seeking reversal of the trial court’s judgment, Mrs. Carty and Farm Bureau (appellants) assert that the trial court erred in finding that Duncan’s acceptance of Farmers’ offer to renew the Carty policy within the grace period of fifteen days was conditioned on Mrs. Carty not having other insurance because there was no evidence to support such a finding. Before considering that question, we must first rule upon appellants’ contention that the trial court erred in admitting and considering parol evidence that delivery of the check (and receipt) was to be effective only on certain conditions. The basis of appellants’ objection to that testimony was that the receipt showing payment of a renewal premium contained no conditions. It unqualifiedly evidenced renewal of the policy. Consequently, say appellants, the oral evidence received undertook to change the contract on the basis of a condition subsequently ascertained, thereby violating the rule against contradicting or altering the terms of a written contract by parol evidence.

The oral evidence received was not offered for the purpose of contradicting or altering the terms of the Farmers policy or the written receipt whereby that policy was to be renewed. It was not offered to alter or contradict the terms of a contract then in effect. It was for the purpose of establishing a condition precedent, not a condition subsequent. The parties wanted to be certain that Mrs. Carty was not ruined by an uninsured accident, and to accomplish that end, they exchanged the check and receipt conditionally at a time when they had been unable to ascertain all the facts. The parol evidence was to show that they agreed at the time the check and receipt were exchanged that they were not to be effective until it was established whether Mrs. Carty had already paid the premium or, in the alternative, had obtained other insurance which was in force at the time of the accident. If it was determined that the premium had been paid or that Mrs. Carty had obtained other insurance, then the check and receipt were to be returned and the policy would not be renewed. If neither of those things had occurred, then the renewal was to be effective.

Oral evidence of an agreement as to when and if a written instrument is to become effective is admissible under a well established exception to the parol evidence rule. 30 Am.Jur.2d Evidence § 1038 states the rule thus:

“It is now the general rule that parol evidence is admissible to show conditions precedent which relate to the delivery or the taking effect of a written instrument. Such evidence does not constitute an oral contradiction or variation of the written instrument, but goes to the very existence of the contract and tends to show that no valid and effective contract ever existed, at least not until the fulfilment of the condition.”

In 32A C.J.S. Evidence § 935, the rule is stated as follows:

“Hence, parol evidence is admissible to show conditions precedent, which relate to the delivery or taking effect of the instrument, as that it shall become effective only on certain conditions or contingencies, for this is not an oral contradiction or variation of the written instrument but goes to the very existence of the contract and tends to show that no valid and effective contract ever existed; but such evidence is not admissible to show conditions subsequent, which provide for the nullification or modification of an existing contract, as that the contract is to cease to be effective or is to have an effect different from that stated therein, on certain conditions or contingencies, for this does vary or contradict the terms of the writing.”

Missouri cases are consistent with the rule stated in the preceding quotations. For example, Kelley v. Illinois Central R. R., 352 Mo. 301, 177 S.W.2d 435 (1943), cert. denied, 322 U.S. 738, 64 S.Ct. 1055, 88 L.Ed. 1572 (1944), involved an action for personal injuries under the F.E.L.A. The railroad pleaded as a defense that plaintiff had signed a release for his injuries. Plaintiff was permitted to testify that defendant’s claim agent obtained his signature on an unconditional release by saying that if plaintiff’s attorney then failed to approve the release, it would not be effective. The evidence disclosed that the attorney did disapprove. The court held the oral evidence was admissible, saying (177 S.W.2d at 440):

“ * * * But, according to the reasoning in the cases relied upon by plaintiff, the condition upon which plaintiff signed was not something that merged in a completed contract, hut operated to postpone the effectiveness of the release until Mr. Wilbourn approved, and since he did not approve, the release never became effective.”

In Poplin v. Brown, 200 Mo.App. 255, 205 S.W. 411 (1918), the court held that defendant could prove that a bill of sale was intended to be conditioned upon certain acts of plaintiff which were not done as promised. The court held that the parol evidence rule did not bar the showing of conditions that must be complied with in order to make the contract effective.

In Vardeman v. Bruns, 199 S.W. 710 (Mo.App.1917), the court held parol evidence that a written contract was conditioned on plaintiff obtaining similar contracts from defendant’s competitors was admissible as showing a condition precedent to the contract. See also Barrett v. Davis, 104 Mo. 549, 16 S.W. 377 (1891).

The parol evidence as to the conditional nature of the payment and the receipt given therefor, to which appellants object, was not something which was merged in a completed contract of insurance evidenced by the policy and the receipt for the renewal premium. It related instead to a condition precedent which operated to postpone the effectiveness of the receipt (and the renewed policy of insurance) until it was determined that the condition precedent was fulfilled. Accordingly, we hold that parol evidence that the check and receipt were to be returned and were not to be effective if Mrs. Carty had already paid the premium or if she had obtained other insurance was admissible under the previously mentioned exception to the pa-rol evidence rule.

Having so decided, we proceed to determine whether the evidence was sufficient to support the trial court’s finding that Duncan’s acceptance of Farmers’ offer to renew the Carty policy within the grace period was conditioned upon Mrs. Carty not having obtained other insurance. On that subject, as previously noted, Huff testified that he and Duncan had discussed the question of whether Mrs. Carty might have paid her premium by mail or might have obtained other insurance before Duncan gave Huff a check to cover the premium. He stated that their understanding was that if it was ascertained that the premium had been paid by Mrs. Carty or that she had obtained other insurance, Duncan’s check and the receipt given therefor were to be returned. Duncan testified on direct examination that he and Huff, prior to the time Duncan delivered his check and received the receipt, talked only of the possibility that Mrs. Carty might have already paid the premium by mail and that they had no discussion then (or previously) about the possibility of her having obtained other insurance. However, on cross-examination, he admitted that when he delivered the receipt to Jack Justice on the afternoon of December 1, 1971 (immediately after he received the receipt at 3:00 p. m. on that date) he told Justice about his dealings with Huff and remarked that “we don’t know whether she had insurance elsewhere.” That statement would indicate that Duncan and Huff had discussed the question and that necessarily they did so before or at the latest at the time that afternoon when he gave his check to Huff. This, of course, was consistent with the testimony of Huff and inconsistent with Duncan’s direct examination testimony. The transcript also discloses that Duncan admitted that in his deposition given earlier he had testified that his purpose in making the payment to Duncan was that he “wanted to be sure that Mr's. Carty did have some kind of insurance coverage because of the accident” and that in talking to Huff he suggested that since they did not then know Mrs. Carty’s condition, Fanners ought to make an effort to find out if she had taken out other insurance or if her condition was such that she was unable to make the premium payment to Farmers. This conversation was before Duncan delivered his check to Huff and also is consistent with the testimony of Huff and inconsistent with Duncan’s direct examination testimony at the trial.

Obviously, the trial court believed the testimony of Huff and disbelieved Duncan’s direct examination testimony with reference to the time of their discussion about the possibility of other insurance having been obtained. It is clear that the court also believed Huff and disbelieved Duncan on the question of whether their understanding was that the check and receipt were to be returned if Mrs. Carty did have other insurance. We conclude that there was sufficient testimony to support the court’s finding that payment of the premium by Duncan on behalf of Mrs. Carty was conditional and that the check was to be returned to Duncan and the receipt to Huff in the event that Mrs. Carty had obtained other insurance coverage.

Appellants next urge that they are entitled to a reversal and to entry of judgment in their favor because the evidence shows that Mrs. Carty, by sending her check for $55 to Duncan and by expressing her thanks for what he had done, ratified the unauthorized act of Duncan in paying the premium on her behalf for the purpose of renewing the policy. Having concluded that the payment by Duncan was conditional and that the fact that Mrs. Carty had obtained other insurance coverage prevented completion of the contract of renewal, it is unnecessary to decide whether what Mrs. Carty did was sufficient to constitute ratification. Even if it was, it merely ratified a contract whereby the acceptance of the offer to renew the insurance was conditioned on Mrs. Carty not having obtained other insurance. Her ratification would not rewrite the agreement made or eliminate the condition precedent agreed upon by Huff and Duncan.

Finally, appellants argue that Farmers should be estopped from asserting that the payment by Duncan andjdie issuance of the receipt by Huff were conditional because Farmers did not seek to get back from Mrs. Carty the receipt on which she relied and did not notify her not to rely on the plain meaning of the receipt given by Huff.

The requirements necessary to a finding of an estoppel are not here present. In the first place, a representation by Farmers to Mrs. Carty has not been shown. Duncan was not a designated or authorized representative of Mrs. Carty. He was a volunteer who, without any knowledge on the part of Mrs. Carty, undertook to prevent a situation in which she had no insurance coverage to protect her with reference to the accident involving the Johnson family.

Secondly, the acts of Farmers were not such as to call for application of the principles of estoppel. The agreement between Huff and Duncan, as found by the trial court and affirmed by us, was that a check for the premium and the receipt given therefor were exchanged conditionally, to be effective only if Mrs. Carty had not already paid the premium or obtained other insurance. Huff, with Duncan’s concurrence, did not mail in the check when it was received and did not expect to understand that Duncan would deliver the receipt at that time. In fact, he did not know that it had been delivered by Duncan until he called Duncan the evening of December 2, 1971, and requested return of the receipt. Furthermore, Duncan knew the conditional basis on which the receipt had been given. His testimony shows that he passed on to Jack Justice information that at least so implied. If Mrs. Carty had incomplete information as to the basis on which the receipt had been given and was misled in any respect, it was due to failure of Duncan and Justice to adequately inform her, not to acts of Farmers’ agents.

Finally, the evidence does not show that Mrs. Carty relied on the receipt to her detriment. She had not intended to renew the Farmers policy and had understood it would lapse for nonpayment of the premium. When she received the receipt via Duncan, Justice and her daughter and son-in-law, she did not conclude that she now had coverage under the Farmers policy. She immediately mailed her check for $55 to Duncan but her testimony indicates that was motivated by a desire to reimburse Duncan. In her testimony she was aksed whether, after she received the receipt, she notified Farmers of the occurrence of the accident (she had notified Farm Bureau). She responded by saying that she had not because she “didn’t know whether she had insurance with them or not.” There was also no proof of any kind that if she had been informed by Farmers of the conditional nature of the delivery of the receipt, she would have proceeded on her own to pay the premium and thereby obtain insurance in addition to the Farm Bureau policy she had obtained as a replacement for the Farmers coverage. Accordingly, we overrule the contention that Farmers is estopped to assert the conditional nature of the delivery of the receipt.

Judgment affirmed.

DONNELLY, C. J., and SEILER, MORGAN, HOLMAN, and HENLEY, JJ-, concur.

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

BARDGETT, Judge

(dissenting).

I respectfully dissent.

Farmers Insurance Exchange (hereafter Exchange) sent Mrs. Carty the printed expiration note set forth in the principal opinion. There were no conditions set forth in the note for renewal of the policy other than payment of premium within 15 days of November 18, 1971. The option to renew would expire at midnight December 3, 1971. Mrs. Carty had the right to decide on November 18 that she would not renew the policy and thereafter change her mind and renew it. Her right to do so did not depend upon whether she had an automobile accident in the meantime.

If, instead of sending the premium payment on December 2, 1971, to Duncan to reimburse him for paying the premium for her, she had sent it to Exchange on December 2, 1971, there would appear to be no question but what the policy had been renewed and coverage afforded for the accident of November 24, 1971.

But to send the check to Exchange would merely have been to provide Exchange with a double premium. So, Mrs. Carty did the sensible thing and reimbursed Duncan in the amount he had advanced to pay the premium and there is no question as to whether or not the renewal premium had been paid within the grace period. It had been paid.

Mrs. Carty was the insured party to this contract, not Mr. Duncan. Her approval and ratification of Mr. Duncan’s payment of premium for her was not conditioned at all. Furthermore, it would appear from the renewal notice she received from Exchange that she had no right to make a conditional payment of the premium or conditionally accept the renewal offer.

The opinion of the Missouri Court of Appeals, Springfield District, reversed and remanded this case with directions to enter judgment holding that coverage was afforded by the Exchange policy, saying:

“ ‘[W]hen one acting as agent, although without previous authority, makes a contract for the benefit of another, the latter may at any time afterwards, while the contract is in force, adopt and ratify the act, and thus entitle himself to all its benefits, as fully as if he had given express authority to make the contract. A contract of insurance is no exception to this general rule; . . . .’ Ferguson v. Pekin Plow Co., 141 Mo. 161, 172, 42 S.W. 711, 713 (1897). The overall holding that ratification may be shown from any acts or conduct by the principal which reasonably shows an intention to ratify unauthorized acts done on his behalf, is especially applicable where the principal makes payment on account of benefits received as a result of the act of the agent. 2A C.J.S. Agency, § 88, pp. 692-693. This is true whether the principal reimburses the agent for moneys expended on his behalf (Buck v. Houghtaling, 110 App.Div. 52, 96 N.Y.S. 1034, 1036-1037[1] (1905)) or whether the principal makes payment directly to the third party. Clark v. Gneiting, 95 Idaho 10, 501 P.2d 278, 280-281[8] (1972).

“It is not necessary to a valid and effe-citve ratification that it be communicated to the other party (Restatement, Second, Agency § 95; 2A C.J.S. Agency § 79, at p. 675), and ratification becomes self-evident and fixed ‘if the purported principal, with knowledge of the facts, in an action in which the third person ■ . . . is an adverse party: (a) brings suit to enforce promises which were part of the unauthorized transaction or to secure interests which were the fruit of such transaction and to which he would be entitled only if the act had been authorized; or (b) bases a defense upon the unauthorized transaction as though it were authorized; or (c) continues to maintain such suit or base such defense.’ Restatement, Second, Agency § 97; Restatement, Agency § 97.”

As to the question of whether parol evidence was admissible to show the conditional payment of premium by Mr. Duncan for Mrs. Carty, the court of appeals opinion held the parol evidence to be inadmissible, saying:

“Actually the parol evidence rule is one of substantive law, not one of evidence, so that parol evidence cannot alter a written contract or establish another or varied one in its stead even though the evidence be injected without objection. Melton v. Ensley, 421 S.W.2d 44, 51[6, 7] (Mo.App.1967), and authorities cited therein note 3. Insurance contracts come within the parol evidence rule (Prestigiacamo v. American Equitable Assur. Co., 240 Mo.App. 839, 846-847, 221 S.W.2d 217, 221[2] (1949); 32A C.J.S. Evidence § 908, p. 275 et seq.), and the rule is particularly applicable to liability insurance policies. Hartford Accident & Indem. Co. v. Farmington Auction, 356 S.W.2d 512, 520[10] (Mo.App.1962).

“In an effort to support the holding below, Exchange relies on the proposition that the parol evidence rule does not apply to ‘mere receipts’ which may be contradicted by showing that the money receipted for was not, in fact, paid. 32A C.J.S. Evidence § 926, at p. 302. But this ignores the equally long recognized rule that ‘[Although the writing may take the form of a receipt, it may also have the elements of a contract, and in so far as it expresses the contract or is contractual in its nature, it is a contract between the parties and is subject to the same rules as other contracts in regard to being explained or added to or contradicted by parol evidence. The paper may acknowledge the receipt of money and may at the same time be a contract or an agreement because of its terms.’ Eggimann v. Houck, 240 S.W. 478, 480[2] (Mo.App.1922).

“ ‘Insured’s Receipt’ prepared, signed and delivered by the agent for Exchange, was more than a simple acknowledgment of having received from ‘Loren Duncan for Norma J. Carty’ a check for $55; it also evidenced a ‘Renewal’ of the insurance policy. Huff’s testimony did not contradict the receipt of the check, for this is not denied. Instead, his testimony was designed to show that the consideration which was admittedly delivered was given for an agreement different from what the writing said. This was not proper. State ex rel. and to Use of Alport v. Boyle-Pryor Const. Co., 352 Mo. 1061, 1068-1069, 180 S.W.2d 727, 730[3, 4] (1944).

“A writing is to be judged by its subject matter, not by the name bestowed (Hamm v. Hamm, 437 S.W.2d 449, 452 (Mo.App.1969)), and the denomination of the instrument in question as an ‘Insured’s Receipt’ by Exchange, did not transform it, per se, into a ‘mere receipt.’ When the statement as to consideration ‘is more than one of mere recital or acknowledgment and is essentially of a contractual or executory nature, it can no more be changed or contradicted by parol or extrinsic evidence than any other part of the written instrument.’ Hardin v. Ray, 404 S.W.2d 764, 771[12] (Mo.App.1966). A renewal receipt is more than a mere receipt for money; it is written evidence of a contract and may not be adulterated by parol evidence. Craig v. National Farmers Union Automobile & Cas. Co., 76 S.D. 349, 78 N.W.2d 464, 467[6] (1956); Lewis v. Western Assur. Co., 175 Tenn. 37, 130 S.W.2d 982, 983 (1939); 44 C.J.S. Insurance § 287, p. 1136.”

I believe the opinion of the court of appeals was correct in its analysis of the issues and its decision holding that the Exchange policy was in effect, and therefore I dissent.

      . Duncan had not been in touch with Mrs. Carty and did not make the payment at her direction or with her authority. As a matter of fact, Duncan was not acquainted with Mrs. Carty but knew of her only by reason of friendship of his stepdaughter and a daughter of Mrs. Carty.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. JACKSON COUNTY, Missouri, Plaintiff-Respondent, St. Louis County, Missouri, Intervenor-Plaintiff-Respondent, v. James R. SPRADLING, Director, Department of Revenue, and Department of Revenue, State of Missouri, Defendants-Appellants.
    No. 58814.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied May 12, 1975.

      Stanley Christopher, County Counselor, Charles J. Fraas, Jr., John Edward Cash, Associate County Counselors, Albert B. Rubin, Asst. County Counselor, Kansas City, for respondent, Jackson County, Missouri.
    Thomas W. Wehrle, County Counselor, Morton I. Golder, Deputy County Counselor, Jane Klaber, Asst. County Counselor, Clayton, for intervenor-respondent, St. Louis County, Missouri.
    John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
   HOLMAN, Judge.

This is an appeal from a declaratory judgment wherein the trial court declared that the Department of Revenue is required to reimburse respondents, counties of the first class with a charter form of government, for one-half of the costs and expenses of making property assessments. Construction of the revenue laws of this state is involved and therefore appellate jurisdiction is in this court. Art. V, Sec. 3, Mo.Const., V.A.M.S. We reverse and remand.

Section 137.330, V.A.M.S., which pertained only to first-class counties, originally read as follows:

One-half of all the costs and expenses of the assessor in making the assessment and in the preparation of abstracts of assessment lists and tax bills shall be paid by the state. When the aggregate of such costs and expenses for each year shall have been ascertained, the county clerk or if there be a county comptroller or auditor, then the county comptroller or auditor, of such county shall certify to the director of revenue the amount of said costs, one-half of which shall be paid by the state out of funds appropriated for that purpose.

While that provision was in force, one-half of all the assessment costs and expense of first-class counties were paid by the state with no limitations. The above section, however, was amended in 1969, by Senate Bill 1, and it now reads as follows:

One-half of all the costs and expenses of making the assessment and in the preparation of abstracts of assessment lists and tax bills shall be paid by the state, but in calculating these costs and expenses no amount shall be allowed for the salaries of the assessors [sic], his clerks, and his deputies in excess of that provided in Section 53.071, RSMo. When the amount due has been determined by the state director of revenue, he shall pay such claim out of funds appropriated for that purpose. Laws of Mo., 1969, p. 78. (Emphasis added).

Section 53.071, to which the amended section 137.330 referred, was a separate provision of the same act which amended Section 137.330. It provided, in part, as follows:

1. For the performance of their existing- statutory duties and for the additional duties set forth in sections 53.081 and 53.091, each county assessor, except in counties of the first class, having a charter form of government, shall receive an annual salary for his services and shall, subject to the approval of the county court, appoint the additional clerks and deputies that he deems necessary for the prompt and proper discharge of the duties of his office. A portion of each county assessor’s salary and of the salaries for his clerks and deputies shall be paid by the state in an amount equal to the sum paid by the state for assessor’s, clerk’s and deputies’ compensation in that county in the year 1969, and the remainder of the assessor’s salary and the salaries for his clerks and deputies shall be paid by his county. The salary of each assessor shall be determined as follows: [here followed a listing of the salaries established for assessors in counties with various assessed valuations], (Emphasis added).

Although not directly in issue at the present time, Section 137.530, governing reimbursement for assessment for the City of St. Louis, was also amended by the same 1969 act to read as follows:

The costs and expenses of the assessment for each year shall be paid by the city. The city comptroller shall, as soon as the amount is ascertained, certify the same to the director of revenue for approval, and if found correct a warrant shall be issued in favor of the city for the amount provided in section 53.071, RSMo, for salaries, and for one-half of all other costs and expenses of the assessment. (Emphasis added).

This action arises out of the director of revenue’s actions with respect to the reimbursement of Jackson County and St. Louis County for the fiscal year 1973. For that year, appellant Director of Revenue paid respondent Jackson County one-half of its other expenses and costs of assessment, but limited the reimbursement for salaries to one-half of the total sum paid in salaries in 1969. Jackson County’s petition for declaratory judgment alleged that no such limitation on reimbursement for salaries was required by law and prayed for a judgment in the amount of $55,946.63, the amount allegedly withheld improperly from Jackson County.

St. Louis County intervened as a party plaintiff and alleged that it had certified to appellants its costs and expenses of assessment for the fiscal year 1973 for a total of $1,451,008.55 and that it had not been reimbursed for any portion of that amount. Its petition further prayed for a judgment in the amount of $725,504.27, one-half of the county’s assessment expenses including salaries.

The Department of Revenue admitted that it has paid St. Louis County its certified cost without reference to any limitations contained in Section 53.071 for the years 1970 through 1972, but contends these reimbursements were erroneously made.

Each party moved for summary judgment, and the case was submitted on the motions. Thereafter, the trial court entered its memorandum opinion and order sustaining the motions of the two counties and overruling the motion of the appellants. Judgment was entered accordingly.

Three interpretations as to the meaning of Section 53.071 and its effect on the application of Section 137.330 have been proffered. Two are urged in the alternative by the appellant and one, that which was approved by the trial court, is embodied in the contention of respondents.

The primary interpretation urged by the appellants is that the interaction of the two statutory provisions effectively precludes reimbursement in any amount to first class charter counties for salaries of their assessors and deputies. Their logic, as expressed in their brief, is as follows: “The amended Section 137.330, RSMo. Supp. 1973, explictly states that the state shall pay one-half of all costs and expenses of making the assessments and preparing abstracts and assessment lists and tax bills in first-class counties, ‘but in calculating these costs and expenses no amount shall be allowed for the salaries of the assessors [sic], his clerks, and his deputies in excess of that provided in Section 53.071, RSMo.’ In other words, a county is entitled to no reimbursement for salaries unless there is specific provision for such reimbursement in Section 53.071. Referring to the latter statute, it is quite clear that no provision has been made for reimbursement in counties of the first class having a charter form of government.”

Assuming that Section 137.330 does not bar all reimbursement of first-class charter counties for salaries, appellants argue in the alternative, that such reimbursement is limited by Section 53.071 to the salary levels reimbursed in the year 1969.

It is respondents’ position, which was sustained by the trial court, that the effect of Sections 137.330 and 53.071 is to provide for reimbursement for one-half of all assessment expenses for first-class charter counties, without any limitation based on 1969 salaries.

We find the following principles to be applicable and shall set them forth prior to proceeding further: “In determining the meaning of an ordinance or statute . . . the courts generally seek to ascertain the intention of the lawmakers by giving the words used their ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. . . .” Suburbia Gardens Nursery, Inc. v. County of St. Louis, 377 S.W.2d 266, 271 (Mo.1964). Further, “ . . . [t]he endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with respect to the subject matter has been changed or modified from time to. time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view it is proper to consider, not only acts passed at the same session of the legislature, . but also acts passed at prior legislative sessions and, likewise acts passed at subsequent legislative session . . . .” 82 C.J.S. Statutes § 366, pp. 808-10.

It has been the settled policy of this state for more than a century to pay approximately one-half of the cost of assessing property in all of the counties and the City of St. Louis. See Section 44, p. 936, RSMo 1845 and subsequent revisions. Under the statutes in effect at the time of the 1969 changes the City of St. Louis and all of the counties were receiving reimbursement for one-half of the costs of assessment without any limitations. The 1969 act repealed eighteen sections which provided for the compensation of assessors for various duties based largely on county classification and provided a schedule for such compensation in one section (53.071) based on the assessed valuation of the counties. The compensation of assessors in first-class charter counties was not fixed therein because Art. 6, Section 18(e) prohibits the enactment of any law which would fix the salary of any officer or employee of a charter county. Hence the provision in Section 53.071 excepting first-class charter counties. The same act reenacted Section 137.330 which provided that the state pay one-half of all the costs and expenses of making the assessment in first-class counties but further provided that no amount should be allowed for the salaries of the assessors, their clerks, etc., in excess of that provided in Section 53.-071. This latter provision not only had reference to the specific salaries fixed in that section but undoubtedly referred to the second sentence of the section which reads as follows: “A portion of each county assessor’s salary and of the salaries for his clerks and deputies shall be paid by the state in an amount equal to the sum paid by the state for assessor’s, clerk’s, and deputies’ compensation in that county in the year 1969, and the remainder of the assessors’ salary and the salaries for his clerks and deputies shall be paid by his county.

As indicated, appellants contend that since there is no provision in Section 53.071 for the salary of assessors in first-class charter counties that the state is not required or authorized to reimburse for any of their salary cost. In other words, ½ of 0 = 0. We do not agree. We find nothing in the 1969 enactment nor in any other law to indicate that the legislature intended to discontinue its established policy of paying a substantial part of the assessment cost in first-class charter counties. The act clearly indicates an intent to continue that support in all counties and the City of St. Louis. Moreover, at that time St. Louis County was the only first-class charter county in the state. It would have been unjust, unreasonable and absurd to have excluded that county from the benefits of the act while providing such for all of the remainder of the state. We refuse to attribute such an intent to the General Assembly. Furthermore, if such had been the intent the provision logically would have been placed in Section 137.330 rather than in Section 53.071. We rule this point contrary to appellants’ contention.

We are, however, of the view that the trial court erred in ruling that first-class charter counties are exempt from the limitation contained in Section 53.071 because excepted from the provisions of that section. We think that exception was placed in the section for the sole purpose of making it clear that the salary schedule therein would not apply to such counties. As heretofore indicated, in the absence of such an exception the section would have violated Const. Art. 6, Sec. 18(e).

It is our conclusion that when sections 53.071, 137.330 and 137.530 are considered together they indicate a legislative intent to modify the long standing state policy of paying one-half of the assessment cost by placing a general limitation or ceiling on .the amount of salary expense the state will share. It is common knowledge that as a result of inflation in our economy many salaries are frequently increased. The legislature by the 1969 act indicated a decision not to participate in reimbursement for any future salary increases. There is, however, nothing to indicate that it did not intend for this policy change tó apply to first-class charter counties. Our view is that in placing the limitation reference to Section 53.071 in Section 137.330 the legislature simply overlooked the fact that first-class charter counties were excepted from that section. See, City of Joplin v. Joplin Water Works Company, 386 S.W.2d 369[6, 7](Mo.l965) and cases cited therein. It would have been unreasonable for the legislature to have intentionally excepted first-class charter counties from the salary limitation when it had no control over the amount of the salaries paid in such counties while placing the limitation on all other counties in regard to which it had the duty to fix and thus control the salaries.

Respondents have briefed the point that the doctrine of contemporaneous construction should be applied in ruling this issue. They remind us that appellants paid St. Louis County one-half of the entire assessment expense for the years 1970, 1971 and 1972 without applying the limitation contained in Section 53.071. It is inferred that this action indicates a contruction of the statute by appellants which accords with the trial court’s judgment. If it appeared that appellants actually so construed the statute such should be given consideration. See, Rathjen v. Reorganized School District R-II, 365 Mo. 518, 284 S.W.2d 516 (1955) and United States v. Pennsylvania Industrial Chemical Corp. (3rd Cir.1972), 461 F.2d 468[9], Appellants, however, say that they made such payments inadvertently (apparently without knowledge that the law had been changed) and hence it is our conclusion that they did not actually construe the statute. In that situation we do not give substantial weight to the fact that such payments were made.

Having found nothing in the 1969 act (except the technical drafting error) to indicate an intent to exclude first-class charter counties from the salary limitation provision we rule that such limitation applies to such counties and accordingly sustain appellants’ alternative contention in that regard.

The judgment is reversed and cause remanded with directions to enter a new judgment in accordance with the views expressed in this opinion.

All concur.


author: FINCH Judge.

text:
    STATE of Missouri ex rel. STIFEL, NICOLAUS & COMPANY, INCORPORATED, Relator, v. Hon. Lewis W. CLYMER and Hon. William J. Marsh, Judges of the Circuit Court of Missouri, Sixteenth Judicial Circuit, Respondents.
    No. 58769.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied May 12, 1975.

      James E. Lockwood, Fred J. Petzold, Kansas City, Veryl L. Riddle, Thomas C. Walsh, St. Louis, for relator; Brenner, Lockwood & O’Neal, Kansas City, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
    S. Preston Williams, David Lee Wells, North Kansas City, Keith Wilson, Jr., Independence for respondents and party to be adversely affected.
   FINCH Judge.

This is an original proceeding in prohibition wherein Stifel, Nicolaus & Company, Inc., as relator, seeks to prevent respondent judges from exercising jurisdiction over a case in which one Richard Stock seeks recovery of actual and punitive damages for alleged fraud and misrepresentation in connection with his purchase of securities.

Stock, as plaintiff, filed suit against relator in the Circuit Court of Jackson County on March 18, 1971. The petition alleged that during the period from June 1967 to November 1967 plaintiff was induced by fraud and misrepresentation on behalf of relator to invest in securities as to which relator was acting as a market-maker. The securities thereafter declined in value resulting in a loss. Stock seeks actual damages of $31,316.46, the loss incurred on the securities purchased, plus punitive damages'of $150,000.

Following discovery procedures in which it was established that on September 17, 1968, Stock filed a petition in bankruptcy on which he subsequently was adjudged bankrupt, relator filed a motion for summary judgment. That motion alleged that Stock had no standing or capacity to sue because the cause of action for fraud and misrepresentation asserted by him had vested in the trustee in bankruptcy by virtue of the provisions of 11 U.S.C. § 110. In response thereto Stock filed an affidavit wherein he alleged his petition in bankruptcy was filed September 7, 1968; that he was discharged March 20, 1969; that prior to and during that period of time he had no knowledge or reason to believe that relator or its representatives had dealt with him in 1967 in any fashion other than honestly, fairly and in full accord with all fiduciary obligations due him; that he did not become suspicious of the activities of relator until he began to read in the public press in 1970 that the registered agent and representative of relator with whom he had dealt was being disbarred from acting as a broker or registered representative by the Securities and Exchange Commission; that he then discussed the situation with his counsel and began to check out records and information concerning his dealings with relator and its agent; and that it was thereafter that he discovered for the first time that he had been defrauded by relator and its agent and he then filed suit.

Relator’s motion for summary judgment was overruled, after which it unsuccessfully sought prohibition in the Missouri Court of Appeals, Kansas City District. Relator then filed this proceeding and we issued our preliminary rule in prohibition. We now make it absolute.

It is well established that claims for fraud or misrepresentation are rights of action that are within the purview of 11 U.S.C. § 110(a)(5) and (6) (§ 70(a)(5) and (6) of the Bankruptcy Act.). This conclusion is supported by the analysis of the foregoing sections in 4A Collier on Bankruptcy § 70.28 (14th ed.1971), which states as follows:

“These clauses were revised by the 1938 Act with respect to the subject matter under discussion. In clause (5) of § 70a, the draftsmen inserted the phrase ‘including rights of action’, and also added the first proviso to the clause. In clause (6) the words ‘or usury’ were included. These changes served to clear up a certain confusion in the cases with regard to actions ex delicto and for usury. They also served to indicate that when the title to the bankrupt’s rights of action is under consideration, both clause (5) and clause (6) must be considered together.
“Prior to 1938, the courts were sometimes puzzled as to the relation between the broad terms of § 70a(5), which made no specific reference to rights of action, and § 70a(6), which expressly dealt with certain of these rights. This perplexity was highlighted in cases involving actions ex delicto and for usury, hereafter discussed. But other situations arose where the right of action involved, while not expressly within clause (6), was obviously an assignable chose in action with all the aspects of a property right. In such cases the courts had little difficulty holding that the particular right of action passed under either § 70A(5) or a broad reading of § 70a(6), or a combination of both. This, of course, is now settled by the Act itself, and clauses (5) and (6) together blanket the field so far as rights of action are concerned.”

Numerous decided cases support the foregoing analysis. In Dallas Cabana, Inc. v. Hyatt Corporation, 441 F.2d 865 (5th Cir. 1971), plaintiff, which had been through a bankruptcy proceeding, filed suit to recover for fraud in connection with transactions which had occurred prior to filing of the petition in bankruptcy. Plaintiff’s action was dismissed on the basis that the cause of action for fraud belonged to the trustee in bankruptcy, the court saying at 866-67:

“We think the dismissal was properly granted. Section 70 of the Bankruptcy Act, 11 U.S.C.A. § 110(a), vests in the trustee, upon appointment and qualification, substantially all rights of action reposing in the bankrupt corporation as of the date the bankruptcy petition is filed. Clause (6) of the cited section specifically gives the trustee the rights of action for ‘the unlawful taking or detention of or injury to’ property of the bankrupt. Construing Clause (5) and Clause (6) together, it may be stated as a general rule that all rights of action for injury to the property of a bankrupt vest in his trustee and that only injuries to his person or reputation do not so vest. [Tjitle to all assets and/or property of the Bankrupt, Dallas Cabana, Inc., vested in the trustee in bankruptcy as of the date upon which the bankruptcy petition was filed. The reason for this title conversion was well stated in Gochenour v. Cleveland Terminals Bldg. Co., [118 F.2d 89 (6th Cir. 1941)] where the court said:
The object of the Bankruptcy Act is to benefit creditors by making all the pecuniary means and property available to their payment and in furtherance of this object, there passes to the trustee, not only what in strictness may be called the property of the bankrupt, but also those rights of action to which he was entitled for the purpose of recovering real or personal property, or damages respecting that which has been unlawfully diminished in value, withheld or taken from him.”

In Benson v. Probst, 12 Utah 2d 348, 366 P.2d 700, plaintiff purchased land from defendant. Plaintiff subsequently was adjudicated a bankrupt but he did not schedule any claims against defendant in connection with the real estate transaction. Thereafter, plaintiff filed suit seeking recovery based on alleged deceit in connection with the purchase of the land from defendant. The suit was dismissed on motion of defendant, the court saying, 366 P.2d at 700:

“It appears unimportant whether the claim was scheduled or not, since the authorities uniformly determine that a claim like the one here becomes an asset in the hands of the trustee in bankruptcy, under the Bankruptcy Act simultaneously with the claimants’ adjudication in bankruptcy, with plenary power to deal with it as an asset and as the trustee and the federal courts deem proper and which it is their duty to perform.”

See also Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966); Hooper v. Mountain States Securities Corporation, 282 F.2d 195 (5th Cir. 1960); Tamm v. Ford Motor Co., 80 F.2d 723 (8th Cir. 1935); Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117 (1909).

Respondents do not take issue with the foregoing conclusion as to the scope of § 110(a)(5) and (6). Instead they rely solely on the proposition that the claimed lack of knowledge as to fraud on the part of Stock until sometime in 1970 or 1971 necessarily meant that the. cause of action was not in being at the time of the bankruptcy and that title thereto was not vested by operation of law in the trustee pursuant to § 110(a)(5) and (6). In other words, the critical issue is whether the cause of action accrued at the time of the alleged fraudulent 1967 acts on which the cause of action is based or whether it was not in being until the facts on which it was based were discovered subsequent to termination of the bankruptcy proceedings.

Such a question was answered by the Court in Unexcelled Chemical Corporation v. United States, 345 U.S. 59, 65, 73 S.Ct. 580, 583, 97 L.Ed. 821 (1953), when it said:

“A cause of action is created where there is a breach of a duty owed to plaintiff. It is that breach of duty, not its discovery, that normally is controlling.”

A similar answer is given in 37 C.J.S. Fraud § 71, where it is stated:

“Aside from the question of when a statute of limitations begins to run, * * * a cause of action in deceit accrues immediately on the successful consummation of the fraud.”

See also Garrett v. Perry, 53 Cal.2d 178, 346 P.2d 758 (Cal. banc 1959); Horne v. Cloninger, 256 N.C. 102, 123 S.E.2d 112 (1961).

Logic supports the conclusion stated in the foregoing authorities. A cause of action is given to redress the wrong inflicted by the wrongful conduct. That conduct gives rise to the right of action by the injured party. When suit is brought, it is to recover for the wrongful acts done by defendant in the past, not to recover for something that happens at the time of discovery. It is inaccurate to say that although wrongful acts have been committed there is no cause of action unless and until plaintiff discovers the acts.

The fact that the right of action does come into being at the time of the wrongful acts was recognized in Frazee v. Partney, 314 S.W.2d 915 (Mo.1958). In that case plaintiffs sought to recover for two wrongful deaths and the trial court ruled that they were barred by the one year limitation established by § 537.100 RSMol949, V.A.M.S. That ruling was affirmed on appeal. One of the points disposed of was the argument by plaintiffs that the causes of action did not accrue until after plaintiffs learned the identity of defendant so that they could institute a suit against him. The court overruled that contention, saying at 920:

“ * * * It may be stated as a general principle that, unless affected by statute, a cause of action ‘accrues at the moment of a wrong, default or delict by the defendant and the injury of the plaintiff * * * if the injury, however slight, is complete at the time of the act.’ 1 Am.Jur., Actions, § 61, pp. 451-452.”

Time of discovery, therefore, has nothing to do with the right of recovery but relates only to whether the cause of action is barred by the applicable statute of limitations. This fact was noted in Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970). There the court considered the question of whether an action which sought on the basis of alleged fraud to set aside a default divorce decree rendered more than ten years previously was barred by the five year statute of limitations contained in § 516.120 RSMo 1969, V.A.M.S. Plaintiff asserted that her action should not be barred because the fraud was not discovered until ten years and three months after the default decree was entered, and she brought her suit approximately five months later. The court sustained plaintiff’s position, saying at 811:

“Although the bipartition of Sec. 516.-120(5) has not been recognized in the reported cases, the uniqueness of the composition of this section may not be properly ignored. The initial segment of Sec. 516.120(5) is simply a statute of limitations which imposes a five year limit on the commencement of actions brought for relief on the ground of fraud; the concluding portion constitutes a ten-year artificial lacuna fixed by the legislature on the accrual of the cause of action, i.e., fraud actions are deemed not to accrue during the ten-year suspension period until the discovery of the fraud. As a general rule, a cause of action accrues the moment the right to commence the action comes into existence and the statute of limitations starts to run from that time. In the instant matter, Early Lee’s right to set aside the divorce for fraud actually accrued when the decree was entered on June 23, 1958. However, for the purpose of determining when the five year statute of limitations would commence to run, the last part of Sec. 516.120(5) artifically deferred the accrual of Early Lee’s cause of action until she discovered the fraud at any time within ten years of its perpetration. If the fraud was not discovered or discoverable during the ten-year hiatus provided by the legislature, then the cause of action would be deemed to have accrued at the termination of such period and the statute of limitations would commence to run from that tíme, thereby permitting a maximum of fifteen years for commencement of the suit.”

The court in Anderson correctly recognized the difference between creating a right of recovery for fraudulent conduct and granting a deferral of the obligation to sue thereon within a specified period of time on the basis of a lack of knowledge of the facts which give rise to the right to sue. Section 516.120(5), which was the subsection of the statute of limitations applicable in Anderson (and is also the one with which we are concerned), did not establish when the cause of action accrued or confer any right to sue. It is a purely procedural statute fixing the time in which suit must be filed and containing a saving clause whereby, for the purpose of alleviating the hardship produced when a plaintiff has no knowledge of the fraudulent conduct, the period of time during which suit may be brought is tolled until the fraud is or should have been discovered or a period of ten years elapses, whichever occurs first. This formula demonstrates that the cause of action does not accrue from discovery of the fraud. If ten years elapse without discovery of the fraudulent acts, the statute of limitations begins to run and after five years the cause of action is barred, even if the fraud has not yet been discovered. It is significant that § 516.-120(5) does not say that a cause of action accrues or arises from discovery of fraudulent actions producing injury. It says that the cause of action is deemed to arise at that time. In other words, it says that for the purpose of determining when the statute of limitations begins to run on the cause of action for fraud, the cause of action will be treated as accruing when the fraud is discovered (or at the end of ten years, if that occurs first). As the court noted in Anderson, the legislature thereby artificially defers accrual of the cause of action but only for the purpose of tolling the period of limitation.

Having concluded that the cause of action which Stock now seeks to assert accrued in 1967, it follows that title thereto vested by operation of law in the trustee in bankruptcy pursuant to § 110(a)(5) and (6). Hence, Stock may not maintain suit thereon unless the trustee in bankruptcy abandons the cause of action. Hermsmeyer v. A.L.D., Inc., 239 F.Supp. 740 (D.Colo.1964); Constant v. Kulukundis, 125 F.Supp. 305 (S.D.N.Y.1954). The existence of the claim should be called to the attention of the bankruptcy court for appropriate attention.

Since we have determined that title to the asserted cause of action vested in the trustee in bankruptcy, plaintiff Stock is not the real party in interest and is not entitled to maintain the action. Respondents have no jurisdiction. Under those circumstances, prohibition is the proper remedy. State ex rel. Lumbermens Mutual Casualty Co. v. Stubbs, 471 S.W.2d 268 (Mo. banc 1971); State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939); Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606 (1931); State ex rel. Junior College District v. Godfrey, 465 S.W.2d 1 (Mo.App.1971).

Preliminary rule in prohibition is made absolute.

All concur.

      . These subsections provide as follows:
      “(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located ... (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which miglit have been levied upon and sold under judicial process against him, or otherwise sized, impounded, or sequestered (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; . . . .”

      . The portions of the statutes of limitations with which we are principally concerned are:
      “Sec. 516.100 — Civil actions, ⅜ * * can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued;
      “Sec. 516.120 — Within five years: * * * (5) An action for relief on the ground of fraud, the cause of action in such ease to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”


author: BARDGETT, Judge.

text:
    MERCANTILE TRUST CO., N.A., et al., Plaintiffs-Respondents, v. Amelia O. DAVIS et al., Defendants-Respondents, and Amelia S. Davis et al., minors, by and through their court-appointed guardian ad litem, William M. Ward, Jr., Defendants-Appellants.
    No. 58780.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.
    Rehearing Denied May 12, 1975.

      Thomas S. McPheeters, Jr., Arthur B. Shepley, Jr., Hollye E. Stolz, St. Louis, for defendants-respondents.
    Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
    William M. Ward, Jr., St. Louis, Guardian Ad Litem and Attorney for appellants.
   BARDGETT, Judge.

This appeal comes here upon motion to transfer filed by Amelia O. Davis, et al., defendants-respondents, after opinion by the Missouri Court of Appeals, St. Louis District, pursuant to Rule 83.02, V.A.M.R. The cause will be considered as on direct appeal. Art. V, § 10, Mo.Const., V.A.M.S., as amended 1970.

This equity suit was instituted by testamentary trustees to construe that part of the will of Amelia C. Scudder wherein she bequeathed the residue of her estate. As will be seen infra, the testatrix used the word “issue” several times in Article 10 of flier will. The ultimate question is whether the share of one of the daughters, Martha S. Overall, whose death on April 25, 1972, precipitated this lawsuit, is distributable on her death or is to be delayed until the youngest “issue” of Martha S. Overall, a grandchild, Amelia S. Davis, born January 27, 1955, reaches the age of twenty-one or sooner dies.

In order to determine that question, the court must decide whether (1) “issue”, as used in the will, includes all lineal descendants, i. e., children, grandchildren, great-grandchildren, etc., of testatrix’s daughters, and (2) if “issue” does include those persons generally, whether the testatrix intended that the grandchildren of her daughter should share with their living parent, and (3) if not, whether the testatrix intended that distribution to the next lineal descendant of her daughters, living at the time of the daughter’s death, was to be delayed until the youngest of the daughter’s issue attained age twenty-one or sooner died with the receipt by the next lineal descendant of that person’s distributive share remaining contingent upon that next lineal descendant surviving the noted event, i. e., the youngest issue attaining age twenty-one or dying sooner.

The trustees of the Scudder trust, Mercantile Trust Company, et al., were plaintiffs below and are respondents here. Plaintiffs’ petition stated their quandary as follows: “Upon the death of Martha C. S. Overall, an event which has occurred, the Trustees are directed, pursuant to the terms of Article Tenth just recited, to hold said [one-third] share for her ‘issue’ until ‘all survivors of such issue reach twenty-one years of age . . .’ Plaintiff s-Trustees are uncertain and in doubt about the construction of the above language with respect to whom and when they are to make distribution of the principal of the share held in trust for Martha C. S. Overall. The trustees are also in doubt as to whether they are directed, or authorized in their discretion, to distribute the income of this share during the period after the death of Martha C. S. Overall until the principal of such share is to be distributed or if distribution of the principal should be deferred and to whom they are directed or authorized to distribute such income. In the event the word ‘issue’ is read as ‘descendants’ of Martha C. S. Overall, the Trustees are uncertain as to whether the language ‘to hold said share for her “issue” until survivors of such issue reach twenty-one years of age . . . ’ refers to all descendants of Martha C. S. Overall living at her death, regardless of the degree of relationship, or only to those descendants of Martha C. S. Overall who would take under the direction to distribute to ‘such issue, per stirpes,’ or to only descendants of a class not more remote than a specific degree such as grandchildren, great-grandchildren, etc.”

The genealogy of the parties is shown on the following chart:

The pertinent portions of Article 10 of the will, the residuary portion, are as follows:

“TENTH: (1) All the rest, residue and remainder of my property of whatever it may consist and wheresoever situate, I give, bequeath and devise . . . IN TRUST, for the use and benefit of such of my three daughters as shall survive me and the issue living at my death of any daughter of mine who dies before me, per stirpes; and to make disposition thereof as hereinafter provided.
“(2) When any daughter of mine reaches the age of fifty years she shall receive from my trustees one hundred thousand dollars ($100,000) out of the capital of the trust property held under this paragraph, as her property absolutely, and her interest in the trust estate shall thereupon be reduced in that amount and her income from the trust shall be reduced accordingly
“(3) When any daughter of mine dies, leaving no issue her surviving, the share of my trust estate from which she was receiving the income at the time of her death, shall then be held by my trustees for, or shall pass direct to, as the case may be, my then surviving daughter or daughters and the issue then living of any deceased daughter or daughters of mine, per stirpes, as their other respective shares of my trust estate are then being held in trust or otherwise, and shall thereafter pass in each instance as such other respective shares are disposed of hereunder.
“(4) When any daughter of mine shall die, leaving issue her surviving, the share of my said trust estate from which said daughter was then receiving or, had she survived me would have received the income, shall be held in trust for such issue until all survivors of such issue reach twenty-one years of age, at which time the trust as to such share shall cease and such share shall pass to the survivors of such issue, per stirpes, as their property absolutely. Should all of such last mentioned issue die before the youngest survivor of them reaches the age of twenty-one years, then such issue’s share of the trust property shall then be held by my trustees for, or shall pass direct to, as the case may be, my then surviving daughter or daughters and the issue then living of any deceased daughter or daughters of mine, per stirpes, as their other respective shares of my trust estate are then being held in trust or otherwise, and shall thereafter pass in each instance as such other respective shares are disposed of hereunder.
“(5) Should all of my daughters die without issue them surviving my last surviving daughter may dispose of all the then trust estate by her last will.
“(6) My trustees shall have full power to invest and manage the trust property and collect the income thereof, and after paying the necessary expenses of the trust, (including five per centum of all income for their own services, but no further charge by them for transferring and conveying the trust property at the termination of the trust), shall pay the remainder of such income to the beneficiaries of the trust in as nearly equal quarter-annual installments as practicable. ...”

The circuit court made extensive findings of fact and conclusions of law. It is the Martha S. Overall branch of the Scud-der family that is of particular concern in this case. The circuit court's finding with reference to Article 10 of the will and the distribution it ordered within the Overall branch is as follows:

“7. From a consideration of all of the provisions of the will of said Amelia Cup-pies Scudder and the codicils thereto, and particularly Article TENTH thereof and the other portions of said will which make provision for gifts to the children and grandchildren of the testatrix who were living when the will and codicils were executed and were therefore known to her, the Court finds that it was her intent, in using the word ‘issue’ in said Article TENTH, to refer to children of a deceased daughter and, in case any such child should have predeceased her mother, descendants of such child who would take under a direction to distribute to ‘such issue, per stirpes’. And the Court finds that it was not the intention of the testatrix to refer to all the descendants of a deceased daughter living at her death regardless of the degree of relationship. The Court further finds that it was the intent of the testatrix to defer distribution of a portion of the share of the trust estate which had been held for a deceased daughter only in the event a child of a deceased daughter should be at the time under the age of 21 years; and that in the event all children of a deceased daughter should be over the age of 21 years at the time of the death of the daughter in question, then it was the intent of the testatrix that distribution should be made immediately to the surviving children of such deceased daughter and the descendants of any child of such deceased daughter who may have predeceased her on a per stirpital [sic] basis.

“8. Accordingly, the Court finds that in the case of the share of the trust estate from which Martha C. S. Overall was receiving the income during her lifetime, the corpus thereof, together with all income received thereon since the death of Martha C. S. Overall, should now be distributed absolutely and free from trust to the living children of said Martha C. S. Overall, all of whom are over the age of 21, and to the descendants of the deceased son of said Martha C. S. Overall, in the following proportions :

John H. Overall III one-sixth
Martha R. Overall one-sixth
Amelia O. Davis one-third
Maude O. Davis one-third”

The judgment as to the Overall branch is the same as finding No. 8 set forth above.

As noted, an appeal was taken to the Missouri Court of Appeals, St. Louis District, by the defendants-appellants, all of whom are minors. The circuit court rejected their contention which was that the time for distribution under the will was to be delayed until the youngest of these minors attained age twenty-one or sooner died, and that the income from the Martha S. Overall share should accumulate during the interim. The court ordered immediate distribution to those living issue who stood next in line of descent to Martha S. Overall, per stirpes. Their position is stated in appellants’ brief in the court of appeals as follows:

“Appellants submit that if the language of testatrix’s Will is to be followed and the intent of testatrix as expressed in her will is to be faithfully carried out, then the share of Martha C. S. Overall in the trust estate created under the Last Will and Testament of Amelia Cupples Scudder, deceased, should be distributed to the following persons in the following proportions:

John H. Overall III one-sixth
Martha R. Overall one-sixth
Amelia O. Davis one-third
Maude O. Davis one-third

if they are living at such time as Appellant Amelia S. Davis, a minor, obtains the age of twenty-one or dies, whichever occurs first, or to the then living descendants per stirpes of Martha C. S. Overall, who also survived said Martha C. S. Overall at her death, if one or more of them is not then living. Appellants further submit that the income of this share of Martha C. S. Overall in the trust estate created under the Last Will and Testament of Amelia Cupples Scudder should be accumulated and added to the principal of such share until such time as Amelia S. Davis, a minor, obtains the age of twenty-one and said share becomes distributable as hereinabove set forth. While Article TENTH does not specifically provide for the accumulation of income attributable to this share of the trust, this is implied since Article TENTH clearly states that the share ‘ . shall be held in trust for such issue until all survivors of such issue reach twenty-one years of age . . . ’ and provides for no distribution until that time. ...”

The court of appeals reversed the decree of the circuit court and upheld appellants’ position, after which this court transferred the appeal as set forth at the outset of this opinion.

Some cases have held that the word “issue” as used in a will to be an ambiguous term. Freund v. Schilling, 222 Mo.App. 901, 6 S.W.2d 673 (1928). In Freund the testator’s will provided that “the balance in equal shares to the living lawful issue of my brother, Henry Mahnken, and my sister, Anna Mahnken Grother.” At the time the will was made, Henry and Anna were dead and at that time, and the time of trial, four of Henry’s children were alive and three other children had died before the will was made. Two deceased children left one child each who were alive at trial and the third deceased child, Maggie Mi-chaelis, left nine children who were alive at trial. Anna Grother left four children living at time of trial and, .as noted, Henry left surviving him four children and eleven grandchildren. Thus, it is seen that Henry and Anna had a total of eleven children between them. The trial court ordered the estate to be divided into eleven equal parts, each of which is representative of the share that each child of Henry and Anna would have inherited if all eleven children had survived the testator — a per stirpes distribution. The nine grandchildren who were the children of Maggie Michaelis, one of Henry’s deceased children, appealed contending that the fund should be divided equally among all of the children and grandchildren of Henry and Anna, nineteen equal parts — a per capita distribution.

On appeal the court noted the divided authority as to whether distribution should be per capita or per stirpes and said, 6 S.W.2d at 675: “The lack of harmony among the authorities on the subject tends strongly to show that the language in the will ‘in equal shares to the living lawful issue’ is lacking in clearness and we, therefore, resort to the statutes of Utah [the place where the will was made] in order to arrive at a correct solution on the subject.” The court then affirmed the per stirpes distribution order of the circuit court.

As noted, the court said that the term “issue” as used in wills is ambiguous, but the court also said that the word as used in the will in Freund concededly included all of the defendants. The ambiguity existed because the will did not indicate in what manner the “issue” were to take.

We see from this that the word “issue” as used in wills can perform two functions. One is to designate a class of persons who may be entitled to share in the estate to the exclusion of other classes. In this sense “issue” operates to exclude collateral and ancestral heirs and limits potential takers to descendants but does not necessarily delineate the manner, per stirpes or per capita, by which the descendants will take. The second function the word “issue” can perform is to designate which persons among the class (issue) will be entitled to take upon the happening of a given event.

In the instant case, as in Freund v. Schilling, supra, there is no uncertainty or ambiguity presented by the use of the word issue as a term of limitation so as to exclude collateral and ancestral heirs. All defendants are blood descendants of testatrix’s daughters and are their respective “issue”.

The word “issue” as used by testatrix in Article 10 of her will performed a dual function. First, it limited the class of potential beneficiaries to the lineal descendants of the three daughters of testatrix thereby excluding lineal ancestral and collateral heirs. Second, by using “issue” in the third paragraph of Article 10 instead of “children”, the testatrix indicated her intent to be that the share of a deceased daughter should not pass over to the surviving daughter or daughters merely because the deceased daughter was not survived by children. The use of the word “issue” kept the deceased daughter’s share in that daughter’s branch of the family if the daughter was survived by any issue— grandchildren, great-grandchildren, etc.- — ■ even though the daughter’s children did not survive her.

In paragraph • four of Article 10, testatrix continued to use the word issue to describe a class of potential takers but, since paragraph four also directs distribution to “issue”, the word was intended to designate those persons who would be actually entitled to receive the benefits of the trust upon the happening of a specified event — the death of a daughter of testatrix.

Did the testatrix intend for the word “issue” as used in paragraph four of Article 10 to mean that all persons coming within the general definition of “issue” should share in the deceased daughter’s share? In other words, did the testatrix intend that a grandchild, Amelia S. Davis, of her daughter, Martha S. Overall, should compete with and share with her living mother, Maude O. Davis ?

Appellants argue that this is not the real issue and that the only question is whether testatrix intended the word “issue” in paragraph four of Article 10 to include all persons coming within the general meaning of the word so as to delay distribution if any one of the issue is under age twenty-one. Nevertheless, the court is of the opinion that it is important to determine who the distributees are in order to decide the question of whether distribution was intended by the testatrix to be delayed and remain contingent upon the youngest issue reaching age twenty-one.

If by the term “issue” as used in Article 10, paragraph four, the testatrix meant those persons who come' within the limitation of “issue” and who would, under the statutes of descent and distribution existing when the will was made in 1918, be entitled to inherit, then she did not intend for a more remote descendant to compete with or share with that descendant’s living mother. The will here admits of doubt on this question.

In Merchantile Trust Co. Nat’l Assn. v. Brown, 468 S.W.2d 8 (Mo.1971), the question was whether a testator intended a per stirpes or per capita distribution among the descendants of his grandniece. The grandniece was survived by a daughter, Ruth Brown, another daughter, Mary Louise Love (who had a son, John Allan Love, III, and a grandson, Jeffery Scott Love), and a granddaughter, Nathalie Arribas-Munoz, the daughter of Mrs. Richard, a predeceased child. The trial court held that all five of these persons were descendants of the grandniece and ordered a per capita distribution, each receiving a one-fifth share of the trust. On appeal, this court reversed and ordered a per stirpital distribution to be made, one-third to Ruth Brown, a daughter of the grandniece; one-third to Mary Louise Love, another daughter; and one-third to Nathalie Arribas-Munoz, the daughter of a predeceased child of the grandniece.

All of the persons mentioned in Brown were descendants of the grandniece, just as all of the defendants in the instant case are “issue” of testatrix’s daughters. The question in Brown was which of the descendants did the testator intend to receive a share of the trust fund at the death of his grandniece, and the will admitted of doubt on the question.

The will in Brown was written in 1913. The court made an exhaustive review of the law in other jurisdictions and observed that “[apparently, when this will was written in 1913, no Missouri court had adopted either the English rule [per capi-ta] or the Massachusetts rule [per stirpes] in a case involving a gift to descendants or issue where there were no other words or terms to explain or qualify the term ‘descendants’ or ‘issue’ . . . Hence, we must conclude that there was no established precedent by decision in Missouri on which we could say that counsel relied in specifying that the residuary trust should pass to descendants of Mrs. Simpkins [grandniece] at her death.” 468 S.W.2d at 13.

The court went on to say:

“However, there were various statutory provisions relating to estates which used the term ‘descendants.’ This court has held in the case of First Trust Co. v. Myers, 351 Mo. 899, 174 S.W.2d 378, 382, when seeking to ascertain the intent of a testator, that, ‘in doubtful cases like this the courts seeking firm ground have said that the statutes of descents and distributions furnish “a safe guide.” Such statutes announce public policy and are generally accepted as being fair and just. That “safe guide” can and should be followed in this case because no positive provision of the will prevents it, but on the contrary the language used by the testator invites it.

“ ‘In Lyon v. Acker, 33 Conn. 222, 223, an extensively quoted case, it was said: “The statute of distribution governs in all cases where there is no will; and where there is one, and the testator’s intention is in doubt, the statute is a safe guide.” ’

“We find by referring to RSMo 1909, Art. XV, relating to descents and distributions, that § 332 provided to whom real and personal estates should descend from one who died intestate. It provided first for an inheritance by children or their descendants; in the absence of children or their descendants, the section provided successively the order in which others or their descendants would take. Then in § 336 (now § 474.020, V.A.M.S.) it was provided that when there were several lineal descendants of equal degree of consanguinity to the intestate (or other person), they should take per capita, but that when part were dead and part living, the issue should take per stirpes, i.e., the share of the deceased parent. As used in those statutes, the term ‘descendants’ did not mean or imply that all living descendants, regardless of the degree of consanguinity, should take per cap-ita, and did not mean or imply that a descendant woidd share equally with and compete with their own living parent or grandparent. Rather, in the factual situation in this case, it would indicate a per stirpes distribution. We conclude that in the absence of language or expression in the will indicating a contrary intention, testator’s attorney should be considered to have looked to the statutory provisions in his use of the term ‘descendants’ to describe a class of beneficiaries, the same as he did in the use of the term ‘heirs at law.’

“We have decided this case, as previously indicated, on the basis of what we conclude to have been the meaning of the term ‘descendants’ in Missouri at the time this will was written. We note, however, that the construction which we have adopted is in accord with most subsequent decisions on the subject and is in harmony with the present generally prevailing view. It also is in accord with the definition of ‘issue’ in the present Missouri Probate Code. See § 472.010(16), V.A.M.S.” (Emphasis ours.)

Section 472.010(16), RSMo 1969, V.A. M.S., provides: “ ‘Issue’ of a person, when used to refer to persons who take by intestate succession, includes adopted children and all lawful lineal descendants, except those who are the lineal descendants of living lineal descendants of the intestate.”

The known consequences of using the term “issue” without further qualification was to identify as the beneficiaries of the trust the next lineal descendants who are alive at the end of the measuring life of the trust. In the instant case, the measuring life of the principal trust as to the Overall branch was Martha S. Overall. Because the will does not further qualify “issue”, we look to the statutes of descent and distribution to determine who among her descendants are entitled to receive a distributive share. Brown, supra; Freund, supra.

As noted in Brown, supra, the definition of issue who are entitled to take in § 472.010(16) is the same as that which prevailed in 1913 by reason of RSMo1909, §§ 332 and 336, and as noted supra those statutes were still in force in 1918. Thus, by definition, lineal descendants of living lineal descendants are excluded. This is also in keeping with the other rules of construction set forth in Brown which is that, in the absence of an expressed intent to the contary, children are not to compete with or share with their living parents.

The court holds that testatrix, by using the word “issue” to refer to persons who would take under her will, meant the lineal descendants of her daughters but excluded the lineal descendants of living lineal descendants of testatrix’s daughters. She did not express an intention that children would compete with or share with their living parents.

In the instant case, this means that the issue of Martha S. Overall, deceased, who are entitled to receive a distributive share of the Overall part of the trust are Amelia O. Davis and Maude O. Davis (daughters of Martha S. Overall) and John H. Overall, III, and Martha R. Overall (children of Martha S. Overall’s deceased son John), all of whom are over age 21. Since the distribution is to be per stirpes, Amelia O. Davis and Maude O. Davis will each receive one-third of Martha S. Overall’s, deceased, share. John H. Overall, III, and Martha R. Overall will take by representation of their father, John H. Overall, Jr., deceased, with each receiving one-sixth of the Martha S. Overall’s, deceased, share.

Is distribution to the four persons named above to be delayed and the receipt of their share to remain contingent upon their living until Amelia S. Davis, a minor, reaches age 21 or sooner dies ?

The court holds that distribution to the children of Martha S. Overall, a daughter of testatrix, was not intended to be delayed beyond the death of Martha S. Overall unless one or more of them were minors. In the instant case, the surviving children of Martha S. Overall (Amelia O. Davis and Maude O. Davis) were well over twenty-one when their mother died. The third child, John H. Overall, Jr., predeceased his mother but left surviving issue — children. Those two children, John H. Overall, III, and Martha R. Overall, would not share in that portion of the trust which passes to Amelia O. Davis and Maude O. Davis but only in their father’s share. As such, it is not reasonable that testatrix, who throughout the will demonstrated particular benevolent interest in her three daughters and her grandchildren, would have intended that distribution to them of shares of the trust, which would not go to more remote issue (great-grandchildren), be delayed.

This is made clear in paragraph four of Article 10 where the testatrix set forth what would happen to a daughter’s share if she died leaving minor issue. The shares of the other two surviving daughters were not to be disturbed. Only the share of the deceased daughter was to continue in trust until the youngest issue became age 21. If, thereafter, a second daughter died leaving children all over age 21, then distribution was to take place without regard to the existence of the first deceased daughter’s share then being held in trust for her minor children.

Again, the court is of the opinion that issue here meant issue entitled to inherit and excluded lineal descendants of living lineal descendants.

Therefore, had either John H. Overall, III, or Martha R. Overall (children of John H. Overall, Jr., deceased) been minors at the time of Martha S. Overall’s death, then the per stirpes share of John H. Overall, Jr., would have been held in trust until John III and Martha R. reached age 21 and during that interim period they would receive the income as provided in the sixth paragraph of Article 10.

In this fashion testatrix provided for the support of a daughter’s minor issue whose parent, issue of a daughter of testatrix, was dead at the time the first and principal trust terminated as to each daughter’s share upon the death of that daughter.

Here, both John H. Overall, III, and Martha R. Overall, children of John H. Overall, Jr., deceased, were over twenty-one at the time of Martha S. Overall’s death. Therefore, the terms of the will as to them have been satisfied and they are entitled to their distributive share of their deceased father’s share.

It is noted that the circuit court concluded that testatrix meant the children of her daughters when she used the word “issue” in paragraph four of Article 10. Our interpretation, although reaching the same result, is slightly different. We hold the testatrix meant issue of her daughters and not just children of her daughters when she made her will. However, because testatrix did not specify which of the issue would actually take upon the death of a daughter of testatrix, the court, following Brown, supra, and Freund, supra, has applied the Missouri laws of descent and distribution to the word issue for the purpose of arriving at the testatrix’s intent.

The court has considered the various cases and authorities cited in the briefs but finds Brown, supra, to be most persuasive and controlling of the instant appeal.

In paragraph two of the judgment and decree, the circuit court adjudicated the future contingent rights of members of the Maude S. Connor and Gladys S. McRee branches of the family. We cannot anticipate with precision the state of facts which may obtain at the death of either Maude S. Connor or Gladys S. McRee and, therefore, will not undertake a hypothetical adjudication of their relative rights. See State ex rel. Justices, etc. v. Prewett, 20 Mo. 165 (1854), and Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986[6] (1932), where the court adopted the words of 26 Ruling Case Law, § 232: “While a trustee has the right to ask the instructions of the court as to his present duties, he cannot request instructions of the court as to what may be his duty upon the happening of future contingencies.”

Obviously, however, this opinion will control the administration of the trust as to the Maude S. Connor and Gladys S. McRee branches of the family with reference to the meaning of the term “issue”, and relitigation of the questions decided herein would not be anticipated.

Paragraph one of the circuit court’s judgment is:

“1. The corpus of the share of the trust estate created under the will of Amelia Cupples Scudder, from which Martha C. S. Overall received the income during her lifetime, should now be distributed, together with all income received thereon since the death of said Martha C. S. Overall, absolutely and free from trust, to the following defendants in the following propo-tions :

“John H. Overall III One-sixth
Martha R. Overall One-sixth
Amelia O. Davis One-third
Maude O. Davis One-third”

By paragraph three of its decree, the trial court reserved jurisdiction over the question of attorneys’ fees and guardian ad litem fees.

The judgment and decree of the circuit court is (1) affirmed as to paragraph one; (2) reversed and ordered vacated as to paragraph two; and (3) remanded for consideration of the matters set forth in paragraph three.

All of the Judges concur.

      . The paragraphs of Article 10 were not numbered in the will. We have done so as a matter of reference and convenience.

      . Neither Brown, supra, nor the instant case involves any question regarding the state of the law as to adopted children. See Graves v. Graves, 349 Mo. 722, 163 S.W.2d 544 (1942); Kindred v. Anderson, 357 Mo. 564, 209 S.W.2d 912 (1948); and Comments in 3 Maus, Missouri Practice, Probate Law and Practice, § 359 (1960).