*1 Supreme Term,, You. Missoubi, Coubt .118 jury defendant, plaintiff's it directed the to find for in- jury any degree by was caused `in want of care on his part. grounds contributory neg- Instruction: Both are well taken if Contributory ligence City [Carr was available as a defense at all. Negligence. Joseph, 922; Benjamin Railway, of St. Co., 331; Harrington Dunham, Beave v. Transit Johnson, Hill v. But it is clear that negligence charged it was not. The is that the defendant's driver suddenly violently started the truck forward while the knew, perilous position. as he was in a All of the acts of negligence plaintiff got on the of the occurred before he into perilous position. brought What occasioned or about that situa wholly liability tion is influence in so far as defendant's ~s concerned, guilty negligence charged. if its servant was words, pleaded other contributory negligence the case is one under the humanitarian rule and Morris, [Banks is not a defense. any Under view of the instruction was reversible error. jury IV. Instructionnumbered5 advisedthe "that the words `scope duty' particular is meantthe dutieswhichthe servantis employed perform knowledge approval what, with the employer, actually perform of his that servant Scope of engaged employer." when in the service of his Employment. jury the facts of this case the instruction assistance, contrai~y no but on the was calculated to mislead them.
The "accident" instruction was in the usual form. It could have jury served to divert the minds of the from the real issue in the case, namely, plaintiff's injury whether was caused Accident. suddenly violently starting the driver the truck position peril forward while was in a of which the driver was at the time aware. concur, is reversed and the cause remanded. All August Wiechert v. W. J. Wiechert al., Appellants. One, May 24, 1. WILL: Presumption Construction: against Intestacy: Devise of Another’s
Property. intestacy, intentional and a further presumption is that of last he did not own. And this providing a will real estate devised and the proceeds among certain testator’s children. WlECHERT V. WlECHERT. 2. —-:-: Omission of Small Tract: Devise of- Similar Tract Be- longing to Others. Where the testator omitted from the lands adjoining which thirty years, he had owned for and- described another five-acres which he adjoined did not own but him, another farm owned gave all his real estate to his wife for life and directed his executors at her death it to sell and- *2 children, divide the his five and it is apparent simply that his wrongly .described, five-acre tract was the- will be construed should to have devised the five owned. Correcting Description. 3. -: -: Words of If the clause of the “my acres, will devised the south half of the northwest . . . five more or off north side of quarter” of Section and the evidence clearly quarter” shows that half the vfords “south of the northwest are description owned, erroneous five acres testator if these remaining “my omitted acres, words were or . five side of” north would be describe owned, by omitting''the acre tract he the correction should made er- descriptive words,-and roneous acres. the will construed to have devised the five Wills, Corpus'Juris-Cyc. Cyc., 2; p. 1409, 4; p. 1427, References: n. n. p. 1559, 23. n. Appeal Morgan from Court.—Hon. Henry Westimes, Circuit J.
Judge.
Aefirmep. <&
Bohling Bohling appellants. for (1) ambiguity If there is no can in the oral be evidence no. change 1919; Tuschoff, received to See. S. Brown it. v. (2) Mo. 449. Words a devise land by being unambiguous change it is or error to receive oral evidence 384; add Crofe, deduct the will. v. 166 Mo. from Kreehter Davis, 56; Lomax, Davis v. 8 Mo. Lomas v. 218 Ill. 6.L. A.R, (N. S.) (3) petition 942. not state facts sufficient to con- (a) Authorities, supra, point stitute a cause action. a. of action is does not state sufficient constitute cause waived, advantage first time on never of for the taken 167; Lynch, 27 Burns
peal. 1230, B>. Andrews v. Sec. v. Syme Steamboat, 28 Mo. Patrick, v. v. Weil Greene 126 Mo. ex 281;. Benefit, Wells v. Mutual State 69 Mo. 69, 92-; Smith, 177. Kauk- v. Smith, State ex rel. rel. Burrus, Bay Co-., kauna Green U. Smith Co.
97. respondent.
J ohn J. J ones for (1) construing will is to ascertain guide a controlling Gaines, -371; Timberlake, Turner v.
intention testator. SupReme Yol. oe Court from determined (2) must be 342. This intention
Fender, Mo. subject-matter and applied instrument, to the the words of the as 151; Owen Boswell, Nichols v. surrounding circumstances. practical proper App. Baton, inten- yield obvious must rules construction to technical and as the instrument testator, gathered parts tion of the surroundings. Small his situation illustrated evidence of Field, quiet of land in
ELLISON, title to five acres C. Suit to fenced, less as now County, described the north quarter 17, Town of Section of the northeast northwest title deed from the execu plaintiff claims ship 42, 19. The October, 1920. Wiechert, William who tors of the will of died September, clause of his executed the third lying my land south of the branch wife, life, "all devised to for Eight and all of South in the Southeast Eight lying Creek, includ South of Section *3 North through quarter section, also ing Creek, running said the the and five of Section Seventeen half of the Northwest North less, off side the North South half Forty- Township in said Section Seventeen (19),” and directed that death.his two Nineteen so and divide the executors should sell the real estate devised paragraph will the lánd five named children. In later to be is stated in Missouri. answering descrip- tract
The testator did not own the five-acre quoted will, had clause but tion last in above owned ever 1877 the five-acre tract described the executors’ since petition. deed not the latter unless description of in the will can be held to refer the five acres contained thereto; respect to otherwise the died intestate with it. There testator clause; residuary was no testator for, conveyed was the five acres sued and that title to the same by will, notwithstanding erroneously his land was described there- in, through defendants, mistake of the scrivener. The who were the (except quitclaimed heirs and such as had plaintiff), theory resisted action on the regards controversy, died intestate as proof tract in subject operation extrinsic facts was inadmissible the same to the complete proof since was on its instrument face. The objected to was admitted the decision of the trial was for the appealed. defendants have peal just counsel submit the case on one of law stated. "WlECHERT V. WlECHERT. 121 It that the testator was a landowner. The real estate devised to his wife the third clause of will, already quoted, was farms, 200 acres or more. Other aggregating 676 acres, were left to certain of his children in the following.- The-only clauses land he owned Section 17 was a twen ty-acre tract in the extreme southwest thereof, corner which was disposed otherwise inof eighty the northwest corner of section, was a of the home farm willed to the wife, "and the five-acre tract omitted from and sued for in the petition. lay on the north side Section 17 and fit into corner place, adjoining of the home the east end of the eighty- and the south side of that of the farm lo cated in the southeast The five acres described strip owned the testator, was a of land 821/‘>- feet long adjoining wide and half a mile eighty the south side .s acre
In the circumstances shown the record and sketched the fore- going paragraphs of the trial court right, was under extending unbroken line nearly three-quarters of decisions back for century. of a [Riggs 239; Creasy 20 Myers, Alverson, 13-21; Thomson, Thomson v. 56, 63-8, S. W. 1085 and 1128; Briant Garrison, 655, 667-8, 52 S. W. Board of May, Trustees v. 365, 367-8, McMahan v. Cunning- seq., W. Mudd v. ham, 386; Myher 181 W. Myher, Andre, 284-5,
Andre S. W. 153.] jurisdictions While the harmony, other are not in cases Bushong (Ind.), 63 L. R. A. Lomax v. S.) (Ill.), (N. (Wis.), Lomax L. R. A. Re Boeck 1915E, weight authority 1008, the seems in accord with duty doctrine announced the decisions Missouri. statute the *4 enjoined upon is all courts this State execution concerned wills, meaning to give ascertain and effect to true and intent testator, regard having will. due to the directions [Sec. 555, construing eye questions an such will with here, presumption as the one raised start with a inten courts intestacy. tional that further is and not to will the.testator intended whether or not the away not own. This is true “my” ownership appear word importing or other words descriptive bequeathed. property devised or [McMahan supra, supra, Bushong, Mo. l. c. Capps, l. c. c. Collins v. 100 Am. St. l. Stevenson, Ill. N. E. Stevenson (minority opinion).] Ill. seq. 509 et , SupRBme Vou. 122' CouRT provides tbe instant ease because proceeds among cer real estate devised tain of the testator’s children. the, record, considering Applying presumptions these is intended to devise the conclusion that irresistible .the be- petition. That intention should acres described-in the violating pro- the written- effectuated the same be done will, or, accurately, if sufficient in the will visions of more intention.by light,of evidence identi- to reflect the actual extrinsic (my) “five fying subject-matter. The devises- clause.in acrés, the North- off the North side the South half of Quarter”, conclusively of Section 17. It'is shown .description,are half of the northwest south Upon words and their erroneous. the excision of these connectives the description remaining (my) would be “five 17. That the erroneous North side .” said Section rejected good used, description may is estab- the lished, not, be thus by anciently crystallized law only cited, by the cases - Legal nocet, non Maxims the maxim Falsa demonstrate etc. [Broom’s Ed.) remaining, by (8 illuminated p. thus operate shown, upon the will the five attendant circumstances makes judgment-below. dispute, which results in affirmance Lindsay Seddon, GG., concur. adopted- foregoing opinion by EllisoN, C.,
PER CURIAM: The is opinion judges as the concur. of the court. All of Mayme E. Gaskill et al. McGregory, Appellant, v. John One, May 24, 1927. Dispute. 1. APPELLATE Amount JURISDICTION: -by record jurisdiction dispute, as not have at the where the shown amount submitted, $7,500. less than time the case is appeal by Stipulation. Jurisdiction —-: Amendment 2..-: to construe stipulation the suit counsel. Where cannot an item of a will conferred her niece husband’s which the testatrix her shares, dividends company, stock which five in a certain shares of stock before will and the balance declared, the execution of her some before only niece death,, shares, issue is whether were increased to underpaid shares, petition refers and the or 66 five shares clause took inventory each, par being $100 value said shares as to of the $6600, appraised this estate, 66 shares were offered