Dougherty v. Manhattan Rubber Manufacturing Co., 29 S.W.2d 126

Dougherty v. Manhattan Rubber Manufacturing Co.

29 S.W.2d 126

Mo.

1930

Check Treatment

LOUZETTA DOUGHERTY v. MANHATTAN RUBBER MANUFACTURING COMPANY and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellants.

Division Two

June 11, 1930.

29 S.W. (2d) 126

VI. A source of contention is sought to be found in the language employed by the testator in the latter part of Clause Six to this effect: “My intention is that in the meaning and construction of this will the question of vested or contingent remainders shall never arise or in any manner be considered.” It is contended by appellants that the word “remainders” as used in the above quotation, shows that the testator intended to give his daughters but life estates. Considering the will as a whole, with more particular reference to Clauses Three, Five and Six, we are not impressed with the soundness of the interpretation given to the word “remainders” by the appellants. If the testator intended to create life estates in Julia and Agnes no testamentary declaration could have prevented the creation of either vested or contingent remainders. That he was aware of this fact is reasonably certain because the record discloses that his will was drawn by a lawyer of probity, ability and learning, who in the proper discharge of his duty would have informed the testator of the futility of his declaration. It is far more reasonable, therefore, to interpret the word “remainders” as intended to give emphasis to the words used in Clauses Three and Five, creative of the estates in fee simple of Julia and Agnes. Thus interpreted, while not essential to the creation of these estates, it is not futile in that it adds to the affirmative character of the words of creation and thus more clearly demonstrates the intention of the testator.

For the reasons stated we hold that Julia A. Hinton and Agnes Stearns, now Hoover, were, under the will of the testator, given fee simple estates in the lands respectively devised to them; that having survived the testator the estates vested in them absolutely; that the plaintiff-respondent succeeded by proper deeds of conveyance to their rights and whatever rights Anna B. Stearns, the widow of the testator, had under the will in the real estate in question; and that the plaintiff-respondent under said deeds is the absolute owner of said real estate; and that the trust deed securing the note held by the respondent, the Metropolitan Life Insurance Company, constitutes a first lien upon said real estate.

The judgment and decree of the trial court is, therefore, affirmed.

All concur.

Ray Bond for respondent.

William R. Schneider for appellants.

HENWOOD, C.—The respondent, Louzetta Dougherty, and Henry F. Dougherty, Jr., widow and minor son of Henry F. Dougherty, deceased, filed with the Workmen‘s Compensation Commission their claim for death benefits against Manhattan Rubber Manufacturing Company, the employer of the deceased, and American Mutual Liability Insurance Company, the insurer. The proceedings before the commission resulted in a final award of $250 for medical aid, $150 for burial expenses, and a total death benefit of $11,500 payable to Louzetta Dougherty at the rate of $20 per week for 575 weeks, or until her prior death or remarriage, with the remainder to Henry F. Dougherty, Jr. The employer and insurer took an appeal to the Circuit Court of the City of St. Louis, where a judgment was entered affirming the final award of the commission in all particulars, except the award of $250 for medical aid, and from that judgment the employer and insurer were allowed an appeal to this court.

The respondent filed a motion to dismiss the appeal, which was taken as submitted with the case on the merits. As grounds for said motion, the respondent says that the appeal was not taken from the final judgment entered in this cause in the circuit court; that said final judgment was entered on October 8, 1928, at the October term, 1928, of said court; that, on November 22, 1928, during the same term, appellants filed their affidavit for an appeal and were duly allowed an appeal to this court; that, on November 23, 1928, during the same term, without legal or just cause and without notice to the respondent, the circuit court, on its own motion, made an order vacating its final judgment, rendered October 8, 1928, and its order allowing an appeal, made on November 22, 1928; that, on November 24, 1928, during the same term, the circuit court entered a new judgment, identical in terms with its final judgment entered on October 8, 1928; that said new judgment is the judgment appealed from in this cause; that the action of the circuit court, in setting aside its final judgment entered on October 8, 1928, and, in setting aside its order granting an appeal from said judgment, being without just or legal cause and without notice to the respondent, was improper and void; that said new judgment, entered on November 24, 1928, is a nullity; and that the final judgment in this cause is the judgment entered on October 8, 1928.

In this connection, appellants’ abstract of the record shows the following proceedings in the circuit court, during its October Term, 1928: On October 8, 1928, the court entered its judgment affirming the order, decision and award of the commission in this cause. On November 22, 1928, appellants filed their affidavit for an appeal, and, by an order duly made and entered of record, were allowed an appeal to this court. On November 23, 1928, the court, of its own motion, vacated and set aside its order of November 22, 1928, allowing appellants an appeal to this court, and its judgment of October 8, 1928, affirming the order, decision and award of the commission. On November 24, 1928, the court entered a new judgment affirming the order, decision and award of the commission. On November 26, 1928, appellants filed their motion for a new trial. On November 26, 1928, the court overruled said motion for a new trial. On November 26, 1928, appellants filed their new affidavit for an appeal, and, on said day, were granted an appeal to this court.

As above shown, the record merely recites that the circuit court, on November 23, 1928, “of its own motion,” set aside its judgment which was entered in this cause on October 8, 1928, and its order allowing an appeal therefrom which was made on November 22, 1928. However, the subsequent proceedings in the circuit court indicate, and appellants concede in their reply brief, that said action of the circuit court was for the purpose of allowing appellants to file a motion for a new trial, which they had not previously done. And it is also conceded that the respondent was not in court at the time of said action, and that she had no previous notice thereof.

“It is a cardinal principle, that whenever a party‘s rights are to be affected by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.” [

George v. Middough, 62 Mo. l. c. 551.]

“When a motion is made in the progress of a cause, the parties are presumed to be in court, and only such notice is required as the rules of the court prescribe. No such presumption can arise after the case is disposed of. . . . In every case, therefore, of a special motion, unless there has been an express or implied waiver of notice, the want of such notice would of itself be sufficient to vitiate the proceedings.” [

Laughlin v. Fairbanks, 8 Mo. l. c. 371.]

“While circuit courts have power to set aside or modify their orders and judgments during the term at which such orders or judgments are entered, when the litigants are actually or constructively before the court, we believe it would be an unwarranted expansion of their discretion to permit them of their own motion to reopen cases in which their jurisdiction has been exhausted by granting appeals. This court has heretofore refused to sanction the practice of trial courts in changing or modifying final judgments, even during the same term at which they were entered, without notice to the litigants whose interests are affected, but who are no longer in court.

“We therefore conclude that all the orders made in this cause subsequent to the granting of the appeal to this court . . . were illegal.” [

State v. Sutton, 232 Mo. l. c. 247-248, 134 S. W. l. c. 663.]