on the 9th day of March, A. D. 1887, the following described lot, tract, or parcel of land, lying, being, and situate in the county of Franklin and state of Missouri, to wit: 'A strip of land three hundred feet wide, and extending eastwardly and westwardly entirely across the premises of the said first party hereto, and lying along and fronting upon the south line of the right of way of the St. Louis, Kansas City, and Colorado Railroad (said parcel of land following the meanderings of the south line of said railroad through the premises of the said first party), excepting one square acre directly in front of the dwelling house of the said first party,'-for the following purposes, to wit: To establish and maintain manufactories thereon, to dig and quarry stone or other mineral substances therefrom, and to manufacture therefrom such material substance or other thing as to said John Oliver may seem fit and proper. The said John Oliver, his executors, administrators, and assigns, to pay to the first party, his administrators or assigns, as rent for said premises, the sum of one dollar per car load for each and every car load of material or other product thereof shipped from off said premises by the said John Oliver, or his representatives or assigns, during the term of this lease; the payments thereof to be made quarterly, beginning from the date of the first shipment made from off said premises by the said second party. It is further understood and agreed that the first party hereto shall use his personal influence with the said railroad company, or its successors, to have switches or side tracks built upon said premises for the use and benefit of the second party hereto, in the enjoyment of this lease. It is further understood by and between the parties hereto that if, at any time after works or manufactories have been established upon said premises by the said second party or his assigns, the first party should desire to sell said premises, he shall first offer the same to the said John Oliver, his representatives or assigns; and if, upon so doing, he or they shall within sixty days thereafter pay to the said first party the sum of fifty dollars per acre therefor, the first party shall execute and deliver a deed in fee therefor to the said second party, or his representatives or assigns. It is further understood that the second party, or his representatives or assigns, shall have the right to build and construct railways, and switches upon, over, and across the one acre of ground above reserved by the first party. It is further understood that the first party shall have the right of way over and across the premises hereby leased. It is further agreed that the first party may cultivate such parts of said premises as may not be used or needed by the second party for the purposes of this lease, but possession is to be delivered up to the second party when demanded for the purpose of this lease. In witness whereof, we have hereunto set our hands and seals,

Hen.

this 16th day of February, A. D. 1887. ry Smith. [Seal.] John Oliver. [Seal.]" The answer was a general denial, and a plea in the nature of an equitable defense, the substance of which is that said lease was ob tained by the plaintiff from the said Smith by fraud and undue influence, and that the contract was a hard and unconscionable one, and plaintiff is estopped by his conduct from asking its performance.

The court found that the said Smith executed said instrument; "that said contract is executory in its nature, and no consideration passed therefor;" "that, after the execution of said lease, the plaintiff herein joined a certain lime pool, and agreed thereby not to work said mineral lands so leased by him for a term of two years, accepted large sums of money therefor, and wholly failed to pay defendant Smith any sum whatever on the amounts realized by him, and these transactions last aforesaid were illegal and fraudulent as to said Smith, and worked a forfeiture of said lease; that the defendant Henry Smith thereafter, by warranty deed, sold all his lands first herein mentioned to bis codefendant Chas. W. Goetz; and that said Goetz thereupon erected large and costly lime kilns on the lands so leased by plaintiff as aforesaid, and is working the same; and that said Goetz purchased said lands from said Smith with full knowledge of the lease formerly obtained by plaintiff, and became substituted to the rights and equities of said Henry Smith. Wherefore it is adjudged and decreed by the court that the said lease from Henry Smith to plaintiff Oliver be declared wholly fraudulent and void, and the same be canceled and for naught held, and that judg ment herein be rendered for defendants."

The court failed to find from the evidence that the contract was procured by fraud or undue influence, and after carefully reading the great mass of evidence, relevant and irrelevant, contained in this record, we also fail to find that it was so procured. The evidence tends to prove that, at the time the contract was made, the defendant Smith was the owner and in possession of, and residing upon, a farm in Franklin county, containing about 55 acres, of which the land in controversy formed a part. After the contract was made, he continued to reside upon his farm as before until the sale to Goetz, in July, 1890, and afterwards as tenant of Goetz. That the land described in the contract was a limestone bluff of about five acres, on Smith's farm, on the line of said railroad. That, on the day of the contract, Smith gave the plaintiff permission to take from said land, or any other part of his premises, such specimens of rock as the plaintiff might choose to select, for the purpose of testing its qualities. That the plaintiff did on that day take away some specimens of the rock from the premises, and afterwards hauled away a wagon load or two of such specimens for that purpose. That from the date of the con

tract until the institution of this suit, on the 29th of September, 1890, the plaintiff never entered upon the premises, except as herein. before stated, for the purpose of establishing manufactories thereon, or for the purpose of quarrying stone or other mineral substance therefrom for manufacture, or demanded possession of the same for such or any other purpose. That on the 10th of July, 1890, the said Smith, without any notice to the plaintiff, sold and conveyed, by warranty deed, his farm, including the premises in controversy, to the defendant Goetz, who, with full knowledge of the lease to plaintiff, immediately entered into the possession thereof, and was in possession of the same when the suit was brought, quarrying and taking rock therefrom for the purpose of manufacturing lime at his factory and kilns, erected partly on the premises and partly on the right of way of said railroad. It further appears from the evidence that the plaintiff, within less than one year after the making of said contract, to wit, on the 6th day of February, 1888, entered into a contract with certain other manufacturers of lime, by which he, in effect, bound himself not to establish or maintain the factories or carry on the business contemplated in the contract with Smith, for the period of three years from that date, and, to secure the performance of the obligations on his part, assigned said lease to his associates in that contract. Of this action of plaintiff Goetz had full knowledge, but it does not appear that Smith had any notice thereof before the sale and conveyance to Goetz.

The rights of the plaintiff in this action must be measured by the terms of the writ ten contract herein set out, regardless of the motives which may or may not have induced him to enter into it. In ascertaining those rights, the intention of the parties, as it may be read upon the face of the whole instrument, is to govern, rather than the technical form of the instrument itself. Applying this principle to the contract in hand, while the first paragraph contains apt words for a present demise for a term of 30 years, comanencing on the 9th day of March, 1887, yet when that paragraph is read in connection with the other provision of the contract, it is apparent that it was not intended that, immediately upon the execution thereof, the plaintiff was to have the right of exclusive possession of the premises for that term, or that he was to have the right of exclusive possession thereof at any time thereafter during said term, except for the specific purpose set out in the contract. The evident meaning of the contract is that Smith should remain in the possession of the premises just as he was before its execution, until such reasonable time thereafter as might be necessary to enable the plaintiff to commence the operations contemplated in the contract; and, when ready to commence, possession of the premises for the purpose of the contract

was to be delivered to the plaintiff on demand, and for those purposes only. The contract was made as upon a fact established, that the premises and the material thereon were suitable for the purposes to which it was to be devoted under the contract. The carrying away of specimens of such material for the purpose of testing its qualities by the plaintiff, with Smith's permission, cannot be tortured into a delivery of the possession of the premises for the purposes for which it was alone to be delivered. The plaintiff never was in possession of the premises under the contract, never demanded possession thereof for the use contemplated therein, and not only failed for a reasonable time thereafter, before the sale by Smith to Goetz, to put himself in a position to make such demand or use, but, on the contrary, after failing to do so for nearly a year after the contract was made, effectually tied his own hands in this respect, by entering into a contract with others not to make such use thereof for three years thereafter. And if, after having thus failed for three years and a half to perform any of the essential obligations on his part, which gave consideration to the contract, he now seeks to obtain the benefits thereof by this action, he cannot do so, in a court of law, even though the powers of a court of equity had not been invoked. A reasonable time for the demand upon his part for the possession of the premises for the use which he promised to make of them, and for an entry by him thereon for the purposes contemplated in the contract, had long expired before this suit was brought, and the plaintiff cannot maintain his action in ejectment therefor. The judgment of the circuit court is for the right party, and is affirmed, except that it will be modified so as to be a plain judgment in ejectment for the defendants. All concur, except BARCLAY, J., not sitting.

1. On the death of the trustee of a fund devised to a college, the circuit court appointed a trustee, who gave a bond to the curators of the college. Afterwards the court passed an order revoking such appointment, and appointing H. Held, that under Rev. St. 1889, §§ 1990, 1991, providing that a trustee of an express trust may sue in his own name without joining the person for whose benefit the suit is prosecuted, H. could sue in his own name on the bond of his predecessor given to such curators.

2. Rev. St. 1889, §§ 8683. 8684, which purport only to govern the appointment of trustees in cases of trusts created by deed, and do not provide for notice to the grantor, or contemplate an adversary proceeding, do not authorize the appointment ex parte of a trustee of a trust created by will.

3. The trustee of a trust created by will died without appointing a successor, and the circuit court of the city of St. Louis appointed a trustee, who qualified and accepted the trust. Held, that such court had no inherent power as a court of equity to revoke such appointment, remove such trustee, and appoint his successor, without notice to him.

Appeal from circuit court, St. Charles county; W. W. Edwards, Judge.

Claim of G. B. Hitch, trustee, against John E. Stonebraker's estate (Julia E. Stonebraker, administratrix), filed in the probate court. The administratrix appealed from an allowance of the claim, as a claim of the fifth class, to the circuit court. From a judgment in favor of Hitch, the administratrix appeals. Reversed.

H. C. Lackland and C. W. Wilson, for appellant. T. F. McDearmon, for respondent.

BRACE, J. On the 10th day of November, 1890, the plaintiff, as trustee of St. Charles College, presented to the probate court of St. Charles county a demand for allowance against the estate of J. E. Stonebraker, deceased, for $3,000, with 6 per cent. interest thereon, from the 1st day of April, 1886, based upon the following bond, filed therewith: "Know all men by these presents, that the undersigned, George B. Johnston, as principal, and John E. Stonebraker, his security, are held and firmly bound unto the curators of the St. Charles College in the sum of five thousand dollars, which payment well and truly to be made they bind themselves, their heirs, executors, and assigns. In testimony whereof they have hereunto subscribed their names and affixed their seals, this sixth day of July, in the year eighteen hundred and seventy-seven. The condition of the above cbligation is such, whereas the circuit court of the county of St. Louis, on the day

of in the year 1877, appointed George B. Johnston, of the county of St. Charles, trustee of a certain sum of three thousand two hundred and seventy dollars, allowed against the estate of Trusten Polk, deceased, and in favor of the curators of the St. Charles College, which said sum being a part of a sum of money bequeathed to the said college by the last will and testament of Catherine Collier, deceased: Now, should the said George B. Johnston administer and manage the said sum of money to the best advantage, so that it may bring a reasonable interest, and pay the said interest, as it annually accrues, to the treasurer of said college, and pay over and account to his successor, the principal of said fund, then this obligation to be void; otherwise to remain in full force. Geo. B. Johnston. [Seal.] Jno. E. Stonebraker. [Seal.]" The demand was allowed in the fifth class by said court on the 18th of February, 1892, for the sum of $4,057.50, with 6 per cent. interest from that date against said estate, and an appeal was taken by the administratrix to the circuit court, where the case was tried de novo,

the issues found for the plaintiff, and judgment rendered in his favor for the sum of $4,095 damages, with 6 per cent. interest thereon and costs, and it was ordered that said sum be allowed in the fifth class against the estate of John E. Stonebraker, deceased, and that a copy of such judgment be certified to the probate court of St. Charles county, from which judgment the administratrix appeals to this court.

The facts disclosed by the record are that Mrs. Catherine Collier, in and by her last will and testament, duly probated on the 26th of August, 1835, made the following bequest: "Second: I give unto my son George Collier, as trustee, during his lifetime, the sum of five thousand dollars, to be by him put out at interest or invested in some permanent stocks, at his discretion, within two years from and after my death, the interest on two thousand dollars of which I desire to be applied to the education of such young men as the Methodist Episcopal Church may think proper to educate for the ministry in that church, and in default of their sending such students, or abusing the true intent of this donation by sending such as do not become ministers, then said interest to be applied to the use of the school intended to be established in St. Charles by my said son George Collier, it being understood that I mean those young men to be educated, shall be done at the said school in St. Charles, my intention being to strengthen said institution by this donation. The interest on the remaining three thousand dollars, I wish applied generally to the benefit of said school, under such regulations and stipulations as my said son George may think proper to make during his lifetime, and, at his death, I desire that said donation pass into the hands of such trustees as my said son may direct in writing; my true intention and meaning being to give my said son entire control of said funds for the purpose mentioned, holding the principal, five thousand dollars, sacred, and not to be used or pledged, and the interest only to be used in such way as my said son may direct, forever." The said George Collier accepted said bequest, and established and endowed St. Charles College, which became incorporated as a body politic by that name in the year 1837, and continued to execute the trust as long as he lived. He was a resident of the city and county of St. Louis, and died in the year 1852. By his last will and testament, admitted to probate in the probate court of the county of St. Louis on the 23d of July, 1852, he appointed Trusten Polk, of the city of St. Louis, his successor in said trust, with power to appoint his successor. Polk accepted said trust, and continued in the performance of his duties as such trustee until the year 1875, when he died, without having appointed a successor. Afterwards, upon the 7th day of June, 1877, upon petition of the board of curators of said college, the circuit court of the city of St. Louis appointed the said George B. Johnston

trustee to succeed the said Polk in said trust. Thereupon the said Johnston accepted said trust, executed the bond sued on, entered upon the discharge of his duties as such, made final settlement with the legal representatives of Polk, and received said trust fund, amounting to the sum of $3,270. Afterwards he paid to the curators the sum of $270 of the principal, and accounted for and paid over the annual interest on the remaining $3,000, in accordance with the trust, until the 1st day of April, 1886. On the 26th of May, 1890, and during the April term, 1890, of the circuit court of the city of St. Louis, one H. B. Evans presented to that court a petition, signed by himself as secretary and one of the curators of the St. Charles College, and verified by his affidavit, setting forth the trust and the condition of the trust fund as aforesaid, and charging "that the said Johnston, since his said appointment as such trustee, has removed from the state of Missouri to the state of Texas, and is, and has been for many years, a nonresident of this state;" "that the said sum of $3,000 is still in the hands of the said Johnston as such trustee, and he has failed and refused for about three years last past to pay over and account to said college for the interest on said sum, and in other respects has failed to perform and execute the trust reposed in him under the aforesaid appointment";-and praying, in behalf of himself, as one of the curators of said college, and in behalf of the other curators of said college, that the appointment aforesaid of the said Johnston be revoked, and that some suitable person be appointed in his stead to hold the said sum of $3,000, to the same uses and trusts, and subject to the same powers and conditions, as the same was held by the said Johnston. The said court thereupon made and entered the following order: "It is ordered that the authority heretofore granted to George B. Johnston be revoked and annulled, and for naught held." And afterwards, to wit, at the June term of the said court, and on the 19th of August, 1890, the court made the following further order on said petition: "Now, at this day, comes H. B. Evans, secretary, and one of the curators of St. Charles College, and presents to the court a petition, duly verified by affidavit, praying for the appointment of a trustee in the place and stead of Geo. B. Johnston, and the said petition is submitted to the court upon the proof adduced; and the court, having duly heard and considered the same, finds that Catherine Collier, by her last will and testament, duly probated in the probate court of St. Charles county, Missouri, bequeathed to her son George Collier the sum of $5,000 in trust for said college; that the said George Collier, by his last will, appointed Trusten Polk as his successor in said trust; that said Trusten Polk died without having appointed a successor to said trust; that on the 8th day of June, 1877, this court duly appointed George B. Johnston as trustee, to administer

and execute said trust in accordance with the wishes, purposes, and intent of said Catherine Collier, as expressed in her last will and testament; that, under and by virtue of said appointment, said George B. Johnston was put into the possession of the sum of $3,270 of the said trust fund, to be executed as aforesaid, of which amount the sum of $3,000, with interest, is still in his hands; that the said George B. Johnston, since his said appointment as such trustee, has removed from the state of Missouri to the state of Texas, and is and has been for many years a nonresident of this state, and has failed to perform and execute the trust reposed in him under the aforesaid appointment; and this court, by order made herein, on May 26, 1890, revoked the appointment of said Johnston as such trustee. It is therefore ordered, adjudged, and decreed by the court that Garner B. Hitch be, and he is hereby, appointed trustee in the place of George B. Johnston, to hold the said sum of $3,000, and the interest accrued thereon, to the same uses and trusts, and subject to the same powers and conditions, as the same was held by the said trustee George B. Johnston, to do and perform with the same force and effect, and be vested with the same title and interest in said money, as was vested in and possessed by the aforesaid trustee." Under this appointment, the plaintiff, Hitch, executed bond, which was approved by the court, and brought this suit, as hereinbefore stated.

1. It is first contended that this action cannot be maintained in the name of Hitch as trustee, but ought to have been brought in the name of the curator of St. Charles College, the obligee in the bond; and, in support of this contention, we are cited to sections 876 and 889, Rev. St. 1889, and to several cases that would be authority in cases coming under that law, authorizing suits to be brought in the name of the state or other obligee in official or quasi official bonds. But this law and these authorities have no application to the case in hand, which, as to the proper party to sue, is governed by the general law contained in sections 1990, 1991, Rev. St. 1889, by virtue of which suits may be brought, not only in the name of the real party in interest, and in the name of one with whom a contract is made for the bene fit of another (Ellis v. Harrison, 104 Mo. 271, 16 S. W. 198), but it is therein expressly provided that a "trustee of an express trust may sue in his own name without joining with him the person for whose benefit the suit is prosecuted." Now, while the contract in question was not made with the plaintiff, or in his name or for his benefit, yet he was in fact the trustee of the fund sought to be recovered. He is the truste of an express trust, and, in contemplation of law, the owner of the fund,-the real party in interest, expressly authorized by statute to sue for its recovery. Tiff. & B. Trusts, p. 1; Gardner v. Armstrong, 31 Mo. 535. And

this brings us to the real and decisive question in the case.

2. Was Hitch legally appointed trustee of the trust fund? The defendant, all through the courts below, contended, and now contends, that he was not; and this question on the record is fairly before us for determination. The plaintiff contends that he was, and, in support of his contention, cites us to sections 8683 and 8684, Rev. St. 1889, as authorizing his appointment in the manner in which it was made, which, as the record shows, was purely ex parte, without notice of any kind, actual or constructive, to the principal, Johnston, or his surety, Stonebraker. In Thompson v. Foerstel, 10 Mo. App. 290, Thompson, J., speaking of this statute, said: "The statute does not provide for notice to the grantor, or contemplate an adversary proceeding," and in that case sustained the ex parte appointment by the circuit court of a trustee to execute a deed of trust of property given to secure the payment of a debt. If this be a correct construction of that statute, upon which it is not necessary now that an opinion should be expressed, then the statute is certainly in derogation of common law, and right, and should be strictly construed. It purports, however, to govern only in cases of trusts created by deed, and cannot by any reasonable construction of its terms be extended to trusts created by will. Consequently, it furnishes no authority for the ex parte appointment of Hitch in this case, and so we have in effect held. Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035.

3. The next question is, can that appointment be sustained as an exercise of the jurisdiction inherent in the circuit court of the city of St. Louis as a court of equity, with power to appoint and remove trustees of an express trust, independent of statutory authority, a power which it undoubtedly possessed in a proper proceeding before it? 2 Pom. Eq. Jur. §§ 1086, 1087. This power could not, however, be exercised arbitrarily, but only according to well-settled principles, after a full consideration of the case in a proceeding for that purpose, instituted by some party in interest, of which the trustee to be removed had notice. Perry, Trusts, $$ 277, 282; 1 Daniell, Ch. Pr. 246; Hill, Trustees, 190-195. It is within the power of no court to take property rights from one citizen, and transfer them to another, unless it has acquired jurisdiction either of the person or the property. But it seems to be argued that because Johnston was appointed trustee of this fund, as successor to Polk, by the circuit court of St. Louis, that court acquired plenary jurisdiction over both the property of the trust and the person of the trustee; so as to enable it at any time, upon its own motion, or at the request of the sestui que trust, to dismiss him from the trust, and transfer his rights therein to another. There is no foundation whatever for

this contention. The trust fund was never in the custody of that court for any purpose. Upon the death of Polk, it was, in contemplation of law, in the hands of his representatives. In order that it might not remain there, and the trust fail, the circuit court. in the exercise of its inherent equitable jurisdiction, had the right to appoint a successor to him in that trust. This was all the power it assumed, attempted to, or did exercise; and when, under such appointment, Johnston qualified, he became the trustee in the trust created by Mrs. Collier's will as the successor of Polk, and sustained precisely the same relation to that court that his predecessor did; and as it would be folly to contend that that court could, in the lifetime of Mr. Polk, without notice. have removed him from the trust, and conferred it upon another, so it is like folly to contend that the court could remove Johnston, and transfer his rights in the trust to Hitch, without notice. We know of no principle upon which this ex parte proceeding. can be sustained. Counsel have cited us to no case, and, after diligent search, we have not been able to find one, that can be said to give it countenance, independent of statutory authority; and, as no statute in this state authorizes it, we are compelled to hold that the plaintiff, at the time this action was brought, was not the legally-appointed trustee of this trust, and had no authority to sue upon the bond in question. Such being the case, it becomes unnecessary to notice other points made in brief of counsel. The judgment will be reversed. All concur.

CLARKSON et al. v. CLARKSON. (Supreme Court of Missouri, Diyision No. 1.. Nov. 26, 1894.)

CONSTRUCTION OF DEED-ESTATE TAIL-GRANTEE'S DEATH WITHOUT ISSUE-EFFECT-APPEALOBJECTIONS BY RESPONDENT.

1. A deed to "J. and his bodily heirs" creates a life estate in J., with remainder in fee to his children.

2. In 1858 a deed was made to "J. and his bodily heirs." J. had no children at that time, and had none up to his death. He left him surviving a widow, brothers, and sisters, and children of deceased brothers and sisters. Held that, under Rev. St. 1855, c. 32, § 5, in force at the time of the execution of the deed, and providing that every conveyance which would have formerly created an estate tail shall vest an estate for life only in the grantee, and upon his. death the land shall be vested in his children, and, if there be no issue, then in his heirs, the title to the land on the death of J. vested in his surviving brothers and sisters and the children of his deceased brothers and sisters.

3. Respondent on appeal cannot complain of the exclusion of evidence where he took no appeal, and the record does not show that he claims to be aggrieved.

Appeal from circuit court, Mississippi county.

Action of ejectment by James Clarkson and others against Sarah Clarkson. Judgment