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every person or persons whomsoever claiming or to claim the same or any part thereof." Mrs. Cornwell made no disposition of the land during her life, either by deed or will or other appointment. She died on the 24th or 25th of December, 1860. Her husband died December 25, 1889. The plaintiffs are all of her children and grandchildren. It was admitted that defendants were at the commencement of the suit, and now are, in possession of the lands. Plaintiffs offered evidence as to value of rents, and rested. Defendants offered and read in evidence a deed of trust from Catherine Cornwell and James Cornwell, her husband, and her trustee, John A. Goodlett, to Robert A. Yeats' trustee, Josiah G. McClellan, dated October 15, 1859, conveying the real estate in question, to secure the payment of three promissory notes for $793.10 each, with 6 per cent. interest from date, executed by James Cornwell, and payable to said Yeats or order, one, two, and three years from date, respectively, with release on the margin by Trusten Polk, dated March 5, 1870. Defendants also offered and read in evidence deed of release from the said Josiah G. McClellan, trustee, and Joseph Sale, owner of the notes above mentioned, dated June 30, 1867, releasing the north 10 acres of the tract from the lien of the last above named deed of trust, in consideration of the payment of $1,000 thereon. Defendants offered, and read in evidence, petition and answer, and the decree of the St. Louis land court, at the March term, 1862, in the case of James Cornwell v. John A. Goodlett, said decree directing said Goodlett, as trustee in the deed to Catherine Cornwell from Yeats and wife, read in evidence by plaintiff, to convey the lands therein described to James Cornwell. Defendants then offered, and read in evidence, the deed made by John A. Goodlett, trustee, etc., to James Cornwell, dated May 21, 1862, under the decree last above referred to, conveying to nim "all the estate, right, title, interest, property, claim, and demand of said Goodlett, as trustee." Defendants also read in evidence a deed of trust from James Cornwell to William Hoffman's trustee, dated February 28, 1870, for $3,000, with release on the margin by Bernard J. Reilly, holder of the note, dated May 24, 1873, upon the land in controversy. Defendants also offered, and read in evidence, deed of trust from James Cornwell to James Clemens' trustee, Bernard J. Reilly, dated May 7, 1873, to secure the payment of Cornwell's note to Clemens for $3,000, two years from date, together with four interest notes for $150 each, due in 6, 12, 18, and 24 months each, upon the real estate in controversy, and giving the usual power of sale upon default, and to make deed, etc.; also, trustee's deed by Bernard J. Reilly, abovenamed trustee, conveying said real estate to Christian Halle, after alleged default, advertisement, and sale under said deed of trust, dated December 1, 1880, for the consideration

of $1,000; also, the general warranty deed of said Christian Halle, dated April 15, 1885, conveying said real estate to defendant Etta B. Orton for a consideration of $3,300. All of which conveyances were duly recorded. There was evidence, also, showing that the notes secured by the deed of trust to McClellan, trustee for Yeats, were assigned to ExGov. Polk; that money was borrowed by James Cornwell of Hoffman to satisfy Gov. Polk's notes, and, when Hoffman's notes fell due, a new loan was made of Halle to satisfy them. Halle's deed of trust was foreclosed, and he purchased the land and afterwards conveyed it by warranty deed to Mrs. Orton. In rebuttal, plaintiffs proved by Ephraim Stannus that he had lived in the vicinity of the property for 30 years. He knew Mr. and Mrs. Cornwell both for a long time. He heard Mr. Cornwell state, at the time of the sale of the 10 acres to Garriott, that Mrs. Cornwell's mother purchased the property for her. The court found for defendants, and plaintiffs appeal. No instructions were asked or given. The grounds for new trial were that the answer set up no equitable defense or basis for any evidence, whatever, and that the court erred in admitting irrelevant and incompetent evidence, and that, upon the undisputed facts, the ver dict should have been for plaintiffs.

Bashaw & Isbell and E. A. Peacock, for appellants. L. F. Parker and John W. McElhinney, for respondents.

GANTT, P. J. (after stating the facts). 1. The rights of the several parties depend upon the construction to be given the deed from Yeats and wife to Goodlett, as trustee for Mrs. Cornwell. The plaintiffs assert that this deed vested the fee-simple estate in these lands in Mrs. Catherine Cornwell and that no effect can be given to the covenant of the trustee, Goodlett, to convey to James Cornwell, should Mrs. Cornwell die without making a will or directing some other disposition of the land, whereas defendants claim that the true contruction of the deed is that it conveyed a life estate, only, to Mrs. Cornwell, with power to convey the fee in remainder to her husband, if she failed to exercise her right. To enable us to arrive at a proper determination of this difference, certain cardinal principles, which we have no right to disregard, must be kept in mind. In the very nature of things, no remainder can be limited after a fee simple. A grant of the fee simple conveys the whole, and there can remain no remnant for disposition. 2 Bl. Comm. 164; Fearne's Rem. 12; 2 Co. Litt. 126, note; Green v. Sutton, 50 Mo. 186. Again, the doctrine of courts of equity is that equitable estates are considered, to all intents and purposes, as legal estates. In the construction of the limitations of a trust, courts of equity follow the rules of law applicable to legal estates. The cestui que trust or beneficiary takes the same es

tate in duration as in a legal estate, and the estate granted is subject to the same incidents, properties, and consequences as belong to similar estates at law. They are alienable, devisable, and descendible in the same manner. They are alike subject to dower and curtesy. It is true, at one time a widow was not dowable of a trust estate, but, both in England and in this country, a widow is now dowable in an equitable estate. As to curtesy, actual possession of the estate, or the receipt of the rents, issues, and profits, by the wife, or possession by her trustee for her benefit, is equivalent to legal seisin. These principles are elementary. 1 Perry, Trusts, § 324; Lewin, Trusts, § 622; 2 Story, Eq. Jur. § 974; Co. Litt. 290b, Buttir's note 16; Cushing v. Blake, 30 N. J. Eq. 689; Tremmel v. Kleibolt, 75 Mo. 255. It is well, perhaps, to note that a distinction is made between trusts executory and trusts executed. Says the author of Perry on Trusts (volume 1, § 359): "All trusts are executory in one sense of the word; that is, the trustee must have some duty, either active or passive, to perform, so that the statute of uses shall not execute the estate in the cestui que trust, and leave nothing in the trustee. But such is not the meaning of judges when they speak of executed trusts and executory trusts. These words refer rather to the manner and perfection of their creation than to the action of the trustee in administering the property. Thus a trust created by a deed or will, so clear and definite in all its terms and limitations that a trustee has nothing to do but to carry out all the provisions of the instrument according to its letter, is called an executed trust. In these trusts, technical words receive their legal meaning, and the rule applicable to legal estates governs the equitable estates thus created." And when property is vested in one person in trust for another, and the nature of the trust is not prescribed by the donor, but left to the construction of the law, it is denominated a "dry or simple trust." In such a case, the beneficiary is entitled to the possession and enjoyment of the property, and has the right to alien or charge as he or she pleases, and to call upon the trustee to execute such conveyances of the legal estate as he or she may direct. There are also well-established rules of construction in ascertaining whether the estate granted to the first taker is an absolute fee simple or only an estate for life. "It has always been held that an absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it." Rubey v. Barnett, 12 Mo. 5; Norcum v. D'Oench, 17 Mo. 98; Green v. Sutton, 50 Mo. 186; Tremmel v. Kleibolt, 75 Mo. 255.

After a most careful consideration, the

court of errors of New York, in Jackson v. Robbins, 16 Johns. 588, said: "We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee. notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases." Pulliam v. Byrd, 2 Strob. Eq. 142. Jackson v. Robbins was cited and approved by this court in Rubey v. Barnett and Green v. Sutton, supra, and the distinction therein made has never been questioned, save to the extent that, whereas, in Jackson v. Robbins, it was said that "where the testator gives to the first taker an estate for life only, by certain and express words," an estate in fee does not pass, this court, in Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52, held that it was not necessary that the life estate should be created in express terms, saying: "If it is the clear intention from the whole will that the first taker is to have but a life estate, then the added power of disposition will not convert the estate into one of absolute ownership." And see, also, Munro v. Collins, 95 Mo. 33, 7 S. W. 461; Harbison v. James, 90 Mo. 411, 2 S. W. 292; Redman v. Barger (Mo. Sup.) 24 S. W. 177. So that in no case in this state do we find the integrity of the rule shaken, save as to the words used in creating the life estate. Thus Brace, J., in commenting upon Wead v. Gray, 78 Mo. 59, in Munro v. Collins, page 36, 95 Mo., and page 463, 7 S. W., said: "Although the testatrix contemplated that the devisee might not exercise the absolute power which she gave over all the property devised to her, yet in terms, having made her its absolute owner, her power over her property could not be limited by a provision inconsistent with absolute ownership." Wead v. Gray, 78 Mo. 59; State v. Tolson, 73 Mo. 320. In this latter case the provision in the will was: "I give and devise unto my beloved niece, M. S. P., all my estate not hereinbefore devised, to have and to hold and to enjoy to the only proper use and behoof of the said M. S. P. and her heirs forever." "The true intent and meaning of this devise is to give to the said M. S. P. all my estate, real, personal, and mixed: * * * provided, however, that it is my will and devise that, if the said M. S. P. shall die without issue, that then, in such event, the estate herein devised to her shall descend and go to W. and N." This court held the limitation over void for repugnancy. It was an attempt to limit a remainder upon a fee. The cases will be found instructive, as showing that, while the rule is

held the wife took a fee and the husband his
curtesy, and the limitation over was void;
a conclusion reached because, by the terms
of the deed, the entire estate was vested in
the wife, and no remainder was or could be
created by the covenant of the trustee to
convey the property to her legal heirs at
her death, in default of appointment by her
during her life. Appleton v. Rowley, L. R.
8 Eq. Cas. 139; Cushing v. Blake, 30 N. J.
Eq. 689; Stowell v. Hastings, 59 Vt. 494, S
Atl. 738.

settled, each case called for a construction
by the court as to its application, but in each
case it was conceded that when the inten-
tion to create a life estate only in the first
taker did not appear, either by express words
or by the clear intention from the whole in-
strument, and the words were appropriate to
convey an absolute estate to the first taker,
the limitation over, by remainder or other-
wise, was void. With these principles of
law and decisions before us, let us examine
this deed, and see if a life estate is created,
either in express words or by necessary im-
plication from the terms of the deed, gath-
ered from "all of its corners." There are
no words expressly creating a life estate, and
omitting, for the present, the limitation over
to the husband, certainly there cannot be
found in the adjudicated cases a more abso-
lute and unrestricted power of disposal in a
first grantee or taker than was conferred up-
on Mrs. Cornwell, and the trust was clearly
an executed dry trust. The duties devolved
upon the trustee, Goodlett, were such, and
such only, as the law would place upon him
in their absence. In the devolution of es-
tates, equity follows the law, and we ap-
prehend no court would have denied Mr.
Cornwell, the husband, curtesy in these lands,
upon the ground that the trust deed clearly
granted an estate of inheritance, nor can
there be a doubt, under the statute then in
force, that, upon Mrs. Cornwell's death, the
estate would have descended to her heirs.
Rev. St. 1855, c. 32, § 2, p. 355. The rule
in Shelley's Case has been abolished in this
state, and we have every disposition to ef-
fectuate the intention of grantors and dev-
isors; but that rule required the grant of a
freehold less than one of inheritance, for
the particular estate. Here no life estate is
created, but an absolute fee in the first
taker, and in such a case the rule would
not have applied. It follows that we have
a remainder limited after a fee simple ab
solute, and we have seen this can no more
be done now than at common law. The lim-
itation over is inconsistent with and re-
pugnant to the grant to Mrs. Cornwell.
Learned counsel labored to distinguish this
case from Green v. Sutton, 50 Mo. 186, but,
we think, failed to do so. That case, in all
essential features, is similar to this, and has
never been questioned. It is in harmony
with established principles of law, and we
do not feel at liberty to weaken its force.
There ought not to be any vacillation in the
matter of the passing of titles to real estate.
Green v. Sutton was followed in Tremmel
v. Kleibolt, 75 Mo. 255, in which the trust
deed was identical with this deed, save that
the trustee convenanted to convey to "the
wife's heirs," instead of "her husband and
his heirs;" and in that case the husband as-
serted curtesy, and the heirs claimed that
the limitation over created a life estate in
the wife, remainder to them, but this court BURGESS and SHERWOOD, JJ., concur.

2. The judgment of the land court of St. Louis directing Goodlett, the trustee, to convey the lands to James Cornwell, in no way estops the heirs of his wife. They were not parties to that mandate.

3. It is insisted by defendants that, even though the legal title should be adjudged to plaintiffs, still defendants have a good equitable defense for subrogation to the rights of Yeats, because their grantors paid off the original deed of trust, which was binding on Mrs. Cornwell. The notes secured by the mortgage or deed of trust were all executed by James Cornwell alone. That deed of trust was never foreclosed. After Mrs. Cornwell's death, James Cornwell borrowed other moneys on his own note and deed of trust on said lands, and paid off the notes executed in lifetime of his wife. While the doctrine is well settled that when a third person, at the instance of a mortgagor or for his own protection, pays the mortgage debt, he becomes entitled to the mortgage, and a court of equity will subrogate him to the rights of the mortgagee, it cannot be applied here. Mrs. Cornwell was dead when the original deed of trust was satisfied by Gov. Polk. Neither she nor her heirs had anything to do with the payment of the note. This case, so far as O'Reilly and Halle are concerned, is more analogous to the case of Wooldridge v. Scott, 69 Mo. 669, in which it was held that one who lends money to pay off a note given for the purchase money of land is not entitled to be subrogated to the lien of the vendor, although the money so borrowed is applied to paying off the lien. Price v. Estill, 87 Mo. 378; Price v. Courtney, Id. 387; Norton v. Highleyman, 88 Mo. 621. Here all the subsequent loans were evidently made to Mr. Cornwell on the strength of his ownership. He clearly thought he had title to his own right.

4. As Mrs. Cornwell had an absolute estate in fee, Mr. Cornwell had his curtsey, and his grantees took that during his life, and no rents were recoverable until after his death, December 25, 1889. The claim for improvements must be preferred in the circuit court after the ejectment case is concluded. The statute points out the procedure. The judgment is reversed, and cause remanded for a new trial in accordance herewith.

MCCANN et al. v. EDDY et al. (Supreme Court of Missouri, Division No. 2. June 30, 1894.)

CONNECTING CARRIERS-LIMITING LIABILITY.

1. Rev. St. 1889, § 944, providing that a common carrier which receives goods for shipment or issues receipts or bills of lading in the state shall be liable for any loss caused by its own negligence, or that of any connecting carrier, does not prohibit a carrier from contracting with the shipper against liability beyond its own line.

2. Rev. St. 1889, § 944, making a common carrier receiving goods for shipment liable for his own or a connecting carrier's negligence, if construed to operate outside the state, would be an attempt to regulate interstate commerce.

Appeal from circuit court, Monroe county; Thomas H. Bacon, Judge.

Action by McCann & Smizer against George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway. Judgment for plaintiffs. Defendants appeal. Reversed.

Jackson & Montgomery, for appellants. J. H. Rodes and R. B. Bristow, for respondents.

SHERWOOD, J. Action to recover damages based on delay in the shipment of a lot of cattle from Stoutsville, in Monroe county, Mo., to Chicago, Ill. The delay complained of occurred in the latter state and on a connecting road. The contract on which this action is bottomed is, so far as necessary to quote, the following:

"Rules and Regulations for the Transportation of Live Stock. No station agent or receiver of this railway has any power or authority to bind the receivers in regard to shipment of live stock, except by written contract in the following form: * ** All kinds of live stock will be taken under the provisions of, and at the rates and weights provided for by, the tariff classification applying to the territory in which the shipment originates. In case the owner or consignor agrees to hold these receivers free from liability from any and all causes enumerated in the following contract, * * * the rates agreed upon and specified in the contract will be given."

"Live Stock Contract (No. 10). Executed at Stoutsville station, Missouri, November 12th, 1890. This agreement made between George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, parties of the first part, and M. B. Smizer, party of the second part, witnesseth that, whereas, the receivers of the Missouri, Kansas and Texas Railway transport the live stock as per above rules and regulations, and which are hereby made a part of this contract, by mutual agreement between the parties hereto: Now, therefore, for the consideration and mutual covenants and conditions herein contained, said party of the first part is to transport for the second party the live stock described below, and the parties in

charge thereof, as hereinafter provided, namely, six cars, said to contain 95 head of cattle m. or 1. o. r., from Stoutsville station, Missouri, to Chicago, Illinois, station, consigned to Brown Bros. & Smith, care Union Stock Yards at Chicago, Illinois, at the through rate of 172 c. per hundred pounds from Stoutsville, Missouri, to Chicago, Illinois, subject to minimum weights applying to cars of various lengths, as per tariff rules in effect on the day of shipment; the same being a special rate, lower than the regular rates, or at a rate mutually agreed upon between the parties, for and in consideration of which said second party hereby covenants and agrees as follows: * 13th. And it is further stipulated and agreed between the parties hereto that, in case the live stock mentioned herein is to be transported over the roads or road of any other railroad company, the said party of the first part shall be released from liabil ity of every kind after said live stock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees; the understanding of both parties hereto is that the party of the first part shall not be held or deemed liable for anything beyond the line of the Missouri, Kansas and Texas Railway, excepting to protect the through freight named herein."

Plaintiffs recovered judgment, and defendants appeal.

The section of the statute involved in this litigation is the following: "Sec. 944. Whenever any property is received by a common carrier to be transferred from one place to another, within or without this state, or when a railroad or other transportation company issues receipts or bills of lading in this state, the common carrier, railroad or transportation company issuing such bill of lading shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained."

1. It has been ruled in Dimmitt v. Railroad Co., 103 Mo. 433, 15 S. W. 761, under the provisions of the quoted section (then section 598), that it was competent for a common carrier, by specific agreement, to agree to carry the property only to the terminus of its own line, or-what is equivalent thereto-by similar agreement to limit its liability to loss or damage occurring on its own line. This ruling was followed in Nines v. Railway Co., 107 Mo. 475, 18 S. W. 26. In an earlier case (Snider v. Express Co., 63 Mo. 376), before

the enactment of the statute in question, a similar ruling was made. In the case at bar the instrument which is the basis of this action is to be construed as a whole. Construing it in this way, it is easy to see that the liability apparently assumed by the first clause of the contract is expressly qualified and limited by the thirteenth specific agreement aforesaid, which, in clear and unambiguous terms, confines the liability of the defendant company to its own line of road. In consequence of this, and in consequence of the defendant company having promptly delivered at the terminus of its line the cattle to the connecting carrier, there was error committed by the trial court in refusing the third instruction asked by defendant, to wit: "(3) The court instructs the jury that defendants are not liable, under the contract of shipment read in evidence, for any damages or delays occurring on any other railroad than the one operated by defendants; and if you find from the evidence that defendants transported plaintiffs' cattle from Stoutsville to Hannibal without unreasonable delay, and delivered said cattle to the Wabash Railway Company, as the connecting carrier, within the time usually and reasonably required for such transportation and delivery, then the defendants are not liable in this case, notwithstanding said cattle may have been unreasonably delayed on said Wabash Railroad, and your finding should be for the defendants."

2. If the section under discussion is to be construed literally; if it is to be interpreted as casting on one railway company the burden of the negligence of another railway company, against whose negligence the company sued has explicitly contracted, as in the present instance,-then I have no hesitation in saying I do not believe that the legislature has the power thus to interfere with the right of a railway company to contract, speaking in a general way, as it may deem fit. This power of individuals or corporations to contract as they think best has been recently decided by this court to be placed beyond legislative interference by constitutional guaranties, both state and federal, which uphold the right of "due process of law," and all that term implies. State v. Loomis, 115 Mo. 307, 22 S. W. 350. See, also, In re Jacobs, 98 N. Y. 98; Butchers' Union Cases, 111 U. S. 746, 4 Sup. Ct. 652; In re Sam Kee, 31 Fed. 680. The same ruling is applicable in this case. And it is equally beyond the power of the legislature, without fault on the part of the railway company complained of, and in spite of a contract to that effect to the contrary, to cast upon such company the burden of paying for losses incurred through the negligence of another and distinct corporation. Of course, as against its own negligence, a corporation would not be allowed to contract; for this would be subversive of public policy, and besides would be an abdication of the duties and

functions as common carrier, which, by the very terms of its charter, it would not be allowed to abdicate or abrogate. But contracting against the negligence of another corporation rests upon a different footing altogether.

3. Moreover, if section 944, supra, is to be construed as being operative beyond the boundaries of this state, then it is plainly a regulation of interstate commerce, and therefore violative of section 8 of article 1 of the federal constitution. Stanley v. Railway Co., 100 Mo. 435, 13 S. W. 709. Any rule pertaining to the transportation of passengers or merchandise from one state to another is a regulation of interstate commerce, and therefore, under the prohibitions of the federal constitution, a state is inhibited from making such regulations. Case of the State Freight Tax, 82 U. S. 232. In order to conspicuously show that statute, construed as plaintiffs desire, is plainly such a forbidden regulation, it is only necessary to suppose that the state of Illinois should enact laws in reference to merchandise transferred to that state from this state, and at variance with section 944 aforesaid. As is aptly elsewhere said, "Commerce cannot flourish in the midst of such embarrassments." Hall v. De Cuir, 95 U. S. 485. See, also, Gibbons v. Ogden, 9 Wheat. 1; Pickard v. Car Co., 117 U. S. 34, 6 Sup. Ct. 635; Hardy v. Railroad Co. (Kan.) 5 Pac. 6; Carton v. Railroad Co., 59 Iowa, 148, 13 N. W. 67; Louisville & N. R. Co. v. Railroad Commissioners, 16 Am. & Eng. R. Cas. 1. For the foregoing reasons, as it is evident that plaintiff's have no standing in court, the judgment will be simply reversed. All concur.

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1. Plaintiff drove along defendant's streettrack, and a cable car followed slowly close behind, under perfect control, giving constant signals of its approach. Plaintiff, after passing round a team which had prevented his driving between the track and the sidewalk, turned to leave the track without increasing his speed, and was struck by the car. Held, that whether defendant's employés were negligent in running too close or not stopping to give plaintiff time to get off was for the jury.

2. Though plaintiff was negligent in going on the track, this was not contributory to the accident, and whether he could have left the track more expeditiously, and his failure to do so was contributory negligence, was a question for the jury.

3. An instruction that if the gripman saw the carriage after it got on the track, in danger of being struck, in time to have stopped the car, and so have avoided the collision, the defense of contributory negligence could not avail. even if plaintiff negligently drove on the track, is erroneous as requiring a street car to be stopped immediately on a carriage being seen in front of it on the track, though the car was

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