*1 Baylor Spotts, Trustees, Under Campbell M. Frank W. Baylor M Spotts, Edith C. Campbell, Will of Robert Katherine Stewart, Stewart, . Ellsworth Laird Spotts, Jean Stephens Margaret E. Stewart, Stewart, Jean Edith Dorris Spotts Ann Stephens, Katherine F. Alexander (Sutton), B. Campbell, Ella Thompson, S. E. James (Thompson), Joseph Ham (Alexander), Campbell, Hammer Elizabeth Connell, D. John Connell, H. John Connell, Edith mer, E. Frank W. Campbell, Cam Sabra Campbell, Ruth Sarah p b Jr., Everett H. F. Dennis, Charles Dennis, ell, Lillian C. Evelyn Campbell, Robert L. Campbell, G. Dennis, Frances Campbell, Campbell, Robert Eakin Campbell, James F. Campbell, Campbell, Campbell, Robert Jean Letetia McGinnis, Robert McGinnis, Karl C. McGinnis, C. Helen Mary (Defendants), B. Anderson, Annie Shier McKay, Rubina Guardian, G. Dennis, Lillian C. nces Fra (2d) 986. 55 S.W. Appellan t s. One, 20, 1932. Division December *2 appel Wm. D. Martin Bush, D. WíHur Hall Ernest F. . lants *3 n &Johnson Terry Bader for Duggins respondents and Edith C. Spotts al. et respondents

John Campbell, C. Grover for Robert Eakin Letitia Campbell, Helen C. McGinnis and Karl McGinnis. Court Circuit order TIYDE, appeal an from an of C. This is pro tunc County for nunc overruling motions appellants’

of Saline de infant of alleged cross-petition entries and an action an original suit was their fendants ad litem. The Rob will of equity in 1922 under commenced trustees and the will Campbell against ert the beneficiaries named al grandchildren The children and of those beneficiaries. Robert

leged completion estate of of the administration as circuit court plaintiffs by and appointment “that trustees and relationship thereunder and the of the defendants being made conflicting up, claims been now made and set and are up and set claiming those or beneficiaries under as devisees will, respective as to the will, true construction said rights, thereby, titles and the na interests in the property devised ture, arising trusts, any, character if and duration of or trust existing or therein, under provisions, property its referred to rights and the otherwise, with plaintiffs duties as respect to certain properties, income mentioned in said therefrom, arising use, application disposition be made peti trustees property.” the income to said alleged tion then conflicting pointed claims, nature of the out “ provisions conflicting, of the will which am were claimed to be biguous, indefinite meaning,” *4 and uncertain in property set out the devised to each of beneficiaries, the the and contentions made about meaning the of possible provisions and the several constructions of concerning the lands devised each beneficiary to and the interest of beneficiary such therein. prayer petition of the construed; was that the will be the duties the of trustees defined, and that court “ascertain, the determine, identity and the define of the various beneficiaries under will, said and in to the properties mentioned and in described this

petition above, and therefrom; the income and that it ascertain, to. determine and define respective the rights, title and of interest said in beneficiaries and to said property and the thereof; income and if trust by was created the terms of provisions said of said will, or language sufficient for used such purpose, that the court de- clare ascertain, and determine and nature, define the character and extent thereof, the thereof, beneficiaries the properties to which it applied respective and the right and interest of such beneficiaries, such, dis- application, use, and the trust time of toas

the duration trustees, plaintiffs, as by the made to be distribution position and therefrom.” income and property of said who defendants minor for the appointed litem A ad minor following contention up which set an answer filed defendants: through their further state defendants minor “These Rob- said of and intention purpose litem, that the dominant ascer- property, his disposition of deceased, in the Campbell, ert prop- his said to leave testament, was and last will from said tained it so that said of paragraphs five by the first erties, devised of the children benefit intact and inure remain would Campbell, Campbell, Frank Bremner Spotts, James Edith C. said to that Campbell, and Eakin Robert Campbell McGinnis and Helen respec- in such gave estate will, he a life by of said end, the terms grandchildren, children and above named properties to his said tive fur- in descendants, and children or in to their remainder fee with thereof, purpose for the and purpose and aid said therance of children of his said wives and children insuring support of the will, cre- testator, the terms of said said grandchildren, para- whereby five under the first trust, properties devised ated a managed by compe- held, graphs the will should be controlled property, proceeds, collect the trustees, rent the the trustees to tent etc., improvements, insurance, pay thereon, keep up the taxes support of such devisees and their balance for the and use the ’’ families. concerning claim This answer also made the same each of the to each the five specific tracts land devised beneficiaries paragraphs Campbell first of the will of Robert with five ended following prayer: “Wherefore, minor pray these defendants out, said will be construed as herein set for all may premises.” they relief to which be entitled filed five Joint answer was beneficiaries under will who Campbell children of Robert and the were the children of his de- claiming that tracts of ceased son land described the trustees’ as devised each of them were devised to them in fee sim- charged ple with support the maintenance and of the wife of charge “that he in no wise gave Robert said wife, lands, a life estate said but invested defendants, these legal respectively, therein, with the simply fee postponed enjoyment exclusive thereof until full and the death of wife, his said *5 enjoyment being solely by said full burdened charge the assessed against respectively said tracts her maintenance and support during her natural life.” by was filed certain

Answer adult children of the beneficiaries making in the same claim as was made the by guard- filed the

979 by litem, filed was also and answer minor children for their ian ad asking only the court that beneficiaries children of the adult other filed stipulation was rights. A will and determine the construe the rela- as facts such 1922, agreeing upon certain 22, on November that last mar- and probate parties, the tionship of the place at the same date and Campbell the same was on riage of Eobert were made. the will marriage settlement by the following entered order was 18, 1922, December On court: “ plaintiffs hereto, and defend- day parties ‘Now come at this plaintiffs and dis- now come the Stipulation. And ants, and file adjudged by the court that cause; and it is ordered and this misses issue «that execution of this action and pay the costs plaintiffs Hoy A. by B. therefor; also ordered the court and it is ” litem.’ $200 allowed ad Thereafter, 1923, by. beneficiaries in a suit was commenced adjudication rights. of their the will of Eobert for an by writ of error case is attacked decided concur herewith, 917, rently Spotts, (2d) Spotts 977, 331 Mo. v. S. W. herewith, concurrently by nolis, writ of coram error decided Spotts 942, Spotts, (2d) filing Mo. 55 S. W. 984. After application for prior writ of error coram nolis that ease but suing January error, 1929, out of appellants, 14, the writ stating 18, filed motion the order of dismissal of December 1922, did not 'terminate the case because minor defendants as serted title in fee in themselves and asked court construe will of Campbell; Eobert a cross-petition that this was of the minor defendants and pending. it is still They prayed judg the court for ment on cross-petition. this time, Appellants also, at same filed another motion pro for nunc showing tunc alleged entries they what actually 1922, place took in the circuit court on 22, November 18, December 1922. The entries to be asked made were as follows: 22, “November 1922. “ ‘Plaintiffs and defendants joint file stipulations. “ ‘Now, day on this coming this cause on for hearing in open court, all parties plaintiffs and defendants appearing person at- torney, minor appearing litem, defendant and all parties trial, announcing ready for this cause taken up heard, court, argument and after by counsel, said cause was sub- mitted to the pleadings court on decision, stipulations for its the court taken under advisement, each being side al- ” .days lowed ten in which to file brief.’

“December “ 1922. day ‘Now on this the above cause came on for final disposition, having had all matters of said cause under advisement, *6 person in defendants, appearing plaintiffs and both parties, all and guardian by appearing defendants by attorneys, the minor their stating conclusions, its announced litem; thereupon, the court ad case, that a and out make had failed to plaintiffs that grandchil- and defendants favor of the minor in be rendered should whereupon, plaintiffs deceased; Campbell, the said Robert dren of by adjudged and equity; it is ordered bill and their dismissed execu- action,' and of-this pay the costs plaintiffs court Hoy B.A. court by the It is also ordered tion issue therefor. herein.’ litem ad $200 be allowed “ the, thereof, rendition and the judgment of the court ‘To which ob- there litem then and guardian ad their minor defendants " ' ” duly excepted.’ jected, and Spotts, C. Edith behalf of on Answers to these motions were filed children, her .and the will who beneficiaries under was one of the support of In original case. of whom were all defendants pleadings in ease appellants offered motions evidence 22, 1922, page to, stipulation filed November above referred County, Saline Court of Clerk of the Circuit the docket of the ' showing following entries: Hoy B. answer. “10/6/22. litem files A. Guardian Campbell,- Spotts, “11/22/22. Bremner Edith James Defendants E. Baylor Spotts, Campbell, M. Sabr'a Campbell, Frank W. Ella Eakin Campbell, McGinnis, Robert McGinnis, Helen Earl separate joint answer. Campbell, Campbell, Letetia file and separate joint Connell H. file and “Edith and John Connell answers. Stephens, Stewart, Stewart, Margaret Ellsworth E.

“Jean Laird Hammer, Stephens, Hammer, Alexander Elizabeth Lillian Joe Grant Dennis, C. Dennis, Jr., joint separate F. answer. Charles file reply

“Plaintiffs file to all answers. stipulation.

“Parties file plaintiffs. “12/18/22. Hoy guardian Cause A. B. dismissed $200.” ad litem allowed following

And also the upon-a page judge’s entries shown docket: 6.

“Oct. ad litem Guardian files answer.

“(Pencil notation) for Set Nov. 22. 18. “Dec. plaintiff. Hoy guardian Dismissed A. B. ad litem ” - $200 for allowed his services. Appellants testimony also offered the oral of ad litem one the trustees under' who was one of plaintiffs, place as to what took in court on 22, 1922, November and December 18, 1922. This offer of testimony oral was refused the court. appellants’ both overruled they motions and ap- pealed from that order. denied properly was pro tuno entries Tbe for nunc motion issue testimony excluding tbe oral action tbe court’s pro nunc proceedings scope limitations correct. Tbe corrections such which upon *7 corrections, well tbe evidence as as tunc by tbe therefor, fully stated were tbe authorities be based and must 476, as follows: 232 S. W. 531, 288 Mo. Burton, Burton v. or amend correct subsequent term to power at a “While a court has has been there where limited to cases judgment, power this is its actually rendered. judgment as the court an to such omission enter a judg of may amendment made result'in an The correction thus .the nothing to all, amounts clerk, after it ment as entered the and the con or omission than a clerical error more the correction of power has This entry rendered. sequent judgment really of as the of frequent instances recognized times and been from the earliest Dewes, reports. [Hanly v. our the exercise same are found in Mullanphy Phillipson, 1 16; 156; Mo. v. v. Barnes, Hickman 1 Mo. State, 188; Hyde Curling, 363;

1 Mo. 10 Mo. v. l. c. Harrison v. 689; 432; Cooper Clark, 10 l. 18 v. Cir c. State v. Mo. Stacker Mo. Court, 579; 25 401; Neal, cuit 60 Mo. Davison v. Mo. Robertson v. authorized, Davison, 207 Mo. Such amendments as are here 702.] purview statute, 1277, are within the Stat the Section Revised (See. 822, 1929). utes 1919 R. S.

“Wherever, therefore, up the clerk has to failed enter a or up wrong enters a judgment, sought simply and the order is that proper entry the may Mot, made, power exercised; be be: may the when the might ought court has omitted to malee an it order or which made, to it subsequent cannot he pro made at a term nunc entry. tunc Heirs, v. Chouteau’s 45 Mo. 171; [Gibson Turner v. Christy, 145; 50 Mo. v. McMaster, 60; Priest 52 Raley, Mo. Dunn v. 58 134; Mo. Fletcher v. Coombs, 430; 58 Mo. State rel. Graves ex v. Primm, 170; 61 Mo. Wooldridge Quinn, v. 371; 70 Mo. l. c. Belkin v. Rhodes, 76 651; l. c. Ross v. Railroad, Mo. 141 Mo. l. c. 395.] “In the power exercise this the the court must be action of based judge’s minutes, entries, clerk’s papers or some on file case, upon and not judge’s recollection took place luhat at the upon or trial outside evidence. v. 50 Smith, 490; Mo. [Saxton Priest v. McMaster, 52 60;Mo. State v. Jeffors, 64 376; Mo. Fetters Baird, v. 72 389; Mo. Belkin Rhodes, 76 643; Ry. v. Mo. Mo. Co. v. Holschlag, 144 Mo. 253; Young v. Young, 165 624; Mo. Williams v. Sands, 187 S. 1188; W. In re Est., 193 620; Fulsome’s S. W. l. c. ” State ex rel. Aiken v. Buckner, 203 S. (Italics ours.) 242.] The authorities again are reviewed and the same conclusions reached this by, court in Clancy Luyties v. Realty Co., 321 282, Mo. 10 (2d) S. W. 914. Neither the court’s order nor the entry clerk’s nor judge’s minutes nor stipulation filed shows that there was ever a final-submission of this case nor that a trial of it was

982 at was the ease shown is most that commenced. even stipulation parties by various pleadings filed on the issue filed. were pleadings final time at the to facts was filed ‘‘ the same before time at plaintiff may dismissed A suit jury, a or to sitting as the court jury, is submitted R. 960, court.” 1929'.] [Sec. of their answer Concerning appellants’ contention it a cross- made which relief for affirmative litem ashed dis by plaintiffs’ disposed of not it was that therefore case in this situation it seems pending, but is still missal by them. cited existing in the cases entirely different from that the de quiet title to land in a that, when suit cases hold Those ascertain and court to and asks the title himself fendant asserts take could not parties, plaintiff title between the determine adjudi right to have an deprive the defendant nonsuit and 30; S. W. [Rutledge Dent, Mo. title. cation of the *8 195, 237 Co., 292 Mo. Wright-Dalton-Bell-Anchor v. Store Barron 833; Craig Bright, 213 S. 226 v. 786; Cary, S. W. S. W. Adams v. 61; 154 W. State rel. 845; 83, 248 Mo. S. ex Chapman, W. Graves v. rule, as 517, 246 152 S. W. This McQuillin, Bernero v. Mo. 347.] statutory pro upon express ease, in is an stated the latter based 1909 to the statute vision which was added the amendment of concerning quiet 1520, R. S. suits to title to real estate. [Sec. This amendment was as follows: 1929.] upon cause,

“And the trial of such if be for in the same asked pleadings party, may finally of either the court hear and determine any rights, claims, and all interests, demands, whatsoever liens any of parties, affecting or of concerning of them, one or said real property, may complete relief, legal award full and whether or equitable, parties, fully them, to the several each and to of with might the same force any and effect as the court or could in other or brought by any different action parties, them, or one of any to enforce such right, claim, interest, demand, lien or and the judgment or decree of the court when so rendered shall ef- be as parties fectual between the thereto as if any rendered in other dif- separate ferent or prosecuted action therefor.”

This suit was parties not between the who claimed the adversely title other, to each but was one in which who holding were property for the benefit of all defendants, were plaintiffs. asking The trustees were for directions long as to how they were authorized the will to possession remain in of prop erty ultimately which went of to some the defendants. If the trust was terminated the beneficiaries under will were pos entitled to session of the land either for life or in fee. It was no concern they the trustees which. If were entitled to it all, at the trustees’ right possession to question was ended. The as to whether the bene-

983 or the life estate to“the fee entitled will were under tbe ficiaries be remainder- those who would them litigated between be one to all defendants. they were men and during the possession to remain were Likewise, if the trustees necessary to not it was under the of the beneficiaries lifetime fee question to whom during lifetime, the decided, their have bodily if the heirs might occur, It even of each. went at death fee, will were entitled beneficiaries of the of the named grandchildren as defendants named none children or of their persons who would an- and that the live to be such heirs would case being not in at time this description persons be would swer bodily otherwise, to be person, or are brought. Heirs of suit was a Spotts, Mo. Spotts at his determined death. [See (2d) prayed a petition of the trustees for com- 977, supra.] trust, identity plete of the determination the character of rights their trust estate. It was beneficiaries and and interests proper questions concerning the trustees to have all their duties rights and the beneficiaries the trust estate declared interested, right bring might ultimately persons, to all who they or not interest, whether had while the trust contin- estate ued, litigate among reqtrire into court and them themselves the question of title to the after trust, land the termination of the another matter. brought by This court said in a recent case trustee under a will construing for a decree will defining its duties: present

“In case, upon we are not called to make a construction every this will contingency might to meet arisen yet may arise. upon We are called present meet the conditions and construe the will with reference to such Many conditions. of thé *9 possible contingencies might which have arisen past are now may be eliminated. Some of provisions the complex this rather will need not now be except considered so far may as same throw light meaning on the provisions and intent of such as are vital under existing conditions.” National Bank [American v. Saunders, 330 456, (2d) Mo. 50 S. 87, W. l. c. 90.]

This Ruling is stated in Case Law as follows: “While a right trustee has the ask to the instructions of the court present his to duties, he request cannot instructions of the court may as to what duty be his upon happening the of future contin- gencies.” R. C. 1373, L. 232; [26 sec. see, 39 also, Cyc. 317.] Keeping in mind that the real issue in this case was the character of the trust and the duties of the considering the ad litem’s answer in light, it seems apparent it was not cross-petition a asking affirmative against relief plain tiffs, such as does an quiet answer in a title suit seeking a complete determination of the title between parties. the A cross-bill even

984 of defense pleading a primarily is though relief affirmative it asks to 'germane be must it-asks relief The affirmative plaintiff’s suit. to be considered. will not itor stated of action the cause bewill codefendant, this against a granted may be also While relief cross- the aid plaintiff and against the only when it is also done 315 Longacre, v. [Maupin original action. pleader’s defense to the 250 356, 298 Mo. Viehmann, v. 54; 288 W. Viehmann 872, S. Mo. Lanyon 945;W. 611, 128 S. 228 Walker, Mo. 565; v. W. Hamlin Louis, v. St. 522; Mathiason W. 1, 106 S. Chesney, Mo. v. W. 253, 55 S. Joyce Growney, 154 Mo. 890; v. S. W. 196, 56 Mo. a giving defendant statute, of our enactment Prior the to 466.] a 1929), (Sec. 849, R. S. his counterclaim right stay in court to or coun set-off defendant’s with it the carried plaintiff’s dismissal Chesney, Lanyon supra.] v. Walker, supra; terclaim. [Hamlin v. court stated 116, 143 S. this Fisher, 239 Mo. In Fulton concerning following cross-bills: rules the “ one authorize defend- relating pleadings do not to ‘The statutes suit, either at independent inject plaintiff’s suit an into the to ant necessary germane not against his codefendant equity, law or although . . show may . he suit plaintiff’s the to his to defense more his one or against complainant or case either the perfect a original bill. codefendants, be but an pleading will not a cross-bill his . . . such matter.’ And .can rendered on no decree original bill germane “A and defensive must be cross-bill gomay beyond it mere and show cause character, defense in its original equitable touching subject the for affirmative relief bill; original merely a the dismissal of the if it is defense to suit original is suit the cross-bill out of court—when the attack carries nothing defend—but if the withdrawn to cross-bill makes there equitable against cross-pleader a case which entitles the to relief subject original touching- original plaintiff bill, then the original carry cross-bill; bill not with it dismissal of the does ” cross-pleader equitable is entitled to his relief. Here, wholly litem’s ad' answer wás defensive. deny principal purposes plaintiff’s Its were to claim that trust indefinite; uncertain and to resist construction of will (claimed by the named beneficiaries and petition) referred to in the duties of only trustees were to collect the nec amounts essary marriage carry to out the settlement Camp between Robert wife, his that the bell and named beneficiaries had title in fee charge subject against lands; to that adopt the construc (also petition) tion referred gave the will a life estate, *10 trust, to the named held beneficiaries with remainder in fee stating to their descendants. In that construction as proper one only setting guardian the answer was out the theory ad litem’s' meaning asserting will and not against was title plain- making only plaintiffs, were adverse no becatise tiffs against any the infant defendants or other defend- claim the title compel ask court to to do the answer trustees nor did ants, against was claim of title infant anything. If adverse made by plaintiffs in their not made it was defendants of the will. beneficiaries The litem’s answer the named asking against affirmative pleading is answer relief not a They it filed before their answer was filed. them. In fact was were whom could between there been a only parties contro- title controversy no such versy prayed begun over fee litem. ad' therefore the answer We conclude judgment entered finally of dismissal the circuit disposed case. whole Ferguson Sturgis, is affirmed. GG., concur. opinion C., The foregoing Hyde, adopted

PER CURI A M: judges opinion of the court. All of the concur. County Langston Collector R. Appellant, Ranson, John Bacon, (2d)W. 786. y. 56 S. of Jackson Coun t Banc, 1932. December en Court