405, 68 Atl. 450; Patton v. Rankin, 68 Ind., setts and Michigan. All the other courts of 245, 34 Am. Rep. 254; Baker v. Stewart, 40 this country and of Canada and England, Kan. 442, 19 Pac. 904, 2 L. R. A. 434, 10 wherever they have spoken, have held that Am. St. Rep. 213; Masterman v. Masterman, the married women's acts have destroyed the 129 Md. 167, 98 Atl. 537; Hood v. Mercer, jus mariti in estates by the entirety. (2) 150 N. C. 699, 64 S. E. 897; Corinth v. Em- The opinion in Hall v. Stephens was a pure ery, 63 Vt. 505, 22 Atl. 618, 25 Am. St. Rep. dictum, as the estate there vested before the 780. Thus we have seen that, at common date of the married women's acts. (3) The law, and independently of the jus mariti, only case there cited has been repudiated as neither husband nor wife could, without the a dictum by the court of that state. Cole concurrence of the other, bind or dispose of Mfg. Co. v. Collier, 95 Tenn. loc. cit. 123, 31 any interest in the estate. They could not S. W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. have partition. On the death of one, the oth- 921. The following cases were like Hall v. er continued to own the whole estate. There Stephens, in that the estate vested before the was no increase of the estate as in case of statutes affecting the husband's right went the survivorship of a joint tenant. In Jor- into effect. Atkison v. Henry, 80 Mo. 151; dan v. Reynolds, 105 Md. 288, 66 Atl. 37, 9 L. Moses v. Dock Co., 84 Mo. 242; Wilson v. R. A. (N. S.) 1026, 121 Am. St. Rep. 578, 12 Albert, 89 Mo. 537, 1 S. W. 209; Bank v. Ann. Cas. 51, it was said: Fry, 168 Mo. 492, 68 S. W. 348. In Johnston v. Johnston, 173 Mo. loc. cit. 114, 73 S. W. 202, 61 L. R. A. 166, 96 Am. St. Rep. 486, attention was called to the fact that Hall v. Stephens was obiter dictum on the point here involved. In Bains v. Bullock, 129 Mo. 117, 31 S. W. 342, it was held that the Married Women's Act of 1889 (sections 6864 and 6869) did affect the wife's right in the estate by the entirety, and that it enabled the wife, without joining the husband, to sue any person other than the husband for the possession of the land. That case did not determine what effect the statute had on the rights of the husband and wife as between themselves. But it does say (129 Mo. loc. cit. 120, 31 S. W. 343): "To hold the judgment to be a lien at all against this property, and the right of execution suspended during the life of the wife, and to be enforced on the death of the wife, would we think likewise incumber her estate, and be in contravention of the constitutional provision heretofore mentioned, protecting the wife's property from the husband's debts. It is clear, we think, if the judgment here is declared a lien, but suspended during the life of the wife and not enforceable until her death, if the husband should survive the wife, it will defeat the sale here made, by the husband and wife to the purchaser, and thereby make the wife's property liable for the debts of her husband." [9] Leaving out of view for the present the decisions of the courts of this state, we conclude that where a judgment and execution thereon are against a husband alone, not including the wife, such judgment and execution cannot affect in any way property held by them by the entireties, nor can it affect any supposed separate interest of the husband therein, for he has no separate interest. We will now consider the decisions in this state. In Gibson v. Zimmerman, 12 Mo. 385, 51 Am. Dec. 168, it was said: "They are each the owner of the whole, but not of the half. They must both join in a conveyance. They are both necessary to make one grantor." It was also there said: "And it is difficult to assign any good reason why survivorship between husband and wife is prejudicial to the commonwealth, or repugnant to the genius of republics." "But it is also true that the grant vests in abolishes the legal unity between husband and each grantee the entire estate. The statute wife, which gave rise to estates by the entirety, but the estate itself has not been abolished." The question here involved was not in issue in that case, and the authorities were not there reviewed. We respectfully submit that if there had been such a review, it would not have been there said that "the statute abolishes the legal unity between husband and wife, which gave rise to the estate by the entirety." However, we have no special quarrel with that case. It holds, in effect at least, that such estate still exists, freed by the statute from the jus mariti. Valliant, J., in Frost v. Frost, 200 Mo. 474, loc. cit. 483, 98 S. W. 527, 528 (118 Am. St. Rep. 689), said: The Legislature, by section 2878 of our Revised Statutes, expressly excepts a convey"Under the facts of the case at bar it is not ance to husband and wife from the provision necessary for us to decide whether or not under that a conveyance to two or more persons our married women's statutes the husband has shall be a tenancy in common, unless ex- been shorn of the exclusive right to the possespressly declared to be a joint tenancy. Insion and control of the property held as an estate in entirety; it is sufficient to say, as we Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. do say, that the title in such an estate is as it 302, above cited, it was said that the power was at common law; neither husband nor wife of the husband over land held by him and has an interest in the property, to the excluhis wife by the entireties was not affected both live and at the death of either the other sion of the other; each owns the whole while by the married women's acts. The only au- continues to own the whole, freed from the thority there cited was Ames v. Norman, 4 claim of any one claiming under or through the Sneed (Tenn.) 692, 70 Am. Dec. 269. There deceased." are three things to be said about Hall v. Stephens: (1) As we have above stated, only We hold that, as a result of the married women's acts, the husband, during their joint WORDS. ants by the entirety that can be sold under 17. DEEDS 36 NECESSITY FOR OPERATIVE execution for the sale debt of the husband. The decree of the trial court is affirmed. THE ENTIRETIES"-CREATION. An "estate by the entireties" is created by a conveyance to husband and wife by deed in the usual form, being one estate vested in two individuals, who, by a fiction of law, are treated as one person, each being vested with an entire estate, of which, or any part of it, neither can dispose without the concurrence of the other, while in case of the death of either the other retains the estate, which differs from a joint tenancy, where the survivor succeeds to the whole estate by right of survivorship, in an estate by the entireties, the whole estate continues in the survivor. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Entirety.] 2. HUSBAND AND WIFE 14(11)-WILLS 6-ESTATE BY ENTIRETIES DEBTS-DEVISE. HUSBAND'S The interest of a husband in lands held by himself and his wife by the entireties after his death cannot be subjected to the payment of his debts, and a half interest in the land cannot be devised by him. 3. HUSBAND AND WIFE 14(8)-ESTATE BY ENTIRETIES-MARRIED WOMEN'S ACTS. In view of Rev. St. 1909, § 2878, allowing conveyances to husband and wife to retain their common-law effect, the married women's acts (Rev. St. 1909, §§ 8304, 8307-8309) have not changed the common-law rule recognizing the doctrine of an estate by the entireties in husband and wife. 4. HUSBAND AND WIFE COMMON OR ENTIRETY. 14(7)-TENANCY IN In determining the intention of the parties to a deed conveying land to husband and wife to settle whether the instrument created a ten ancy in common or an estate by the entireties, the intention of the parties being controlling, effect must be given the usual and ordinary meaning attached to the language used, and the intention cannot be said to be made different by random, uncertain, and inconclusive phrases inserted by an ignorant scrivener. 5. DEEDS 93-CONSTRUCTION-INTENTION OF GRANTOR. The intention of a grantor in a conveyance must control, unless conflicting with some inflexible rule of law, or, to put it otherwise, the courts will not be swerved from the law because some grantor or conveyancer has attempted to do what the settled rules of law will not permit. 6. DEEDS 95 CONSTRUCTION-INTENTION OF GRANTOR. The intention of the grantor in a deed must be ascertained from the language used, from what the grantor actually said, and not what he may have meant to say. Operative words in a conveyance are necessary to vest an estate. 8. HUSBAND AND WIFE 14(2)-ESTATE BY ENTIRETIES-DEED CREATING. A deed to husband and wife, which in the premises referred to the grantees as "H. H. A. and E. A., his wife, each an undivided onehalf interest," and read, in the granting clause, "unto the said parties of the second part, their heirs and assigns, the following described lots,' created an estate by the entireties in husband and wife; no operative words following or preceding the recital, and there being no words to indicate a desire to have an undivided half interest in the lands vest in each of the grantees. Appeal from Circuit Court, Lincoln County; E. B. Woolfolk, Judge. Action by Elizabeth Ashbaugh against Dean Ashbaugh and others. From a judgment for plaintiff, defendants appeal. Judgment af firmed. R. H. Norton and Avery, Dudley & Killam, all of Troy, for appellants. Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for respondent. WHITE, C. The action was brought under section 2535, R. S. 1909, to determine title to 42 acres of land in Lincoln county. The plaintiff is the widow of Henry H. Ashbaugh, deceased. The defendant Dean Ashbaugh is the son by a former marriage of Henry H. Ashbaugh. The plaintiff claims title to the tract as an estate by entireties under a conveyance made to her and Henry H. Ashbaugh, as husband and wife, during said Asoaugh's lifetime. The conveyance was made in 1909, and Henry Ashbaugh died on April 11, 1914. The defendant son claims under the will of Henry H. Ashbaugh, which purported to give him a half interest in the 42-acre tract mentioned, and a half interest to the plaintiff, widow. During the life of Henry H. Ashbaugh he and his wife joined in a deed of trust conveying this land to H. H. Robinson, trustee for Mary J. Taylor, cestui que trust, to secure a debt, and by reason of their interest in the property thus acquired those two were made parties defendant. Paul Gibson, executor of the last will of Henry H. Ashbaugh, was made party defendant, and in his answer set up that the personal estate of Henry H. Ashbaugh was insufficient to pay the debts which had been allowed against the estate, and that the land mentioned was liable for the payment of such debts. The conveyance by which Henry H. Ashbaugh and his wife acquired title to the land begins as follows: "General Warranty Deed. "This indenture, made on the 11th day of September, A. D. one thousand nine hundred and nine, by and between John A. Crank and Laura Crank, his wife, of Lincoln county, Missouri, parties of the first part, and H. H. Ashbaugh For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and Elizabeth Ashbaugh, his wife, each an undivided one-half interest, of the county of Pike, in the state of Missouri, parties of the second part, witnesseth: That the said parties of the first part, in consideration of the sum of one dollar and other valuable consideration to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm, unto the said parties of the second part, their heirs and assigns the following described lots, tracts or parcels of land, lying, being and situate in the county of Lincoln and state of Missouri, to wit." Then follows a description of the land, and habendum and warranty clauses to parties of the second part, in the usual form. The judgment was for the plaintiff, and defendants appealed. destroy the quality of any estate which the wife might have, but to protect her property by removing it from the control of her husband and giving it into her management; that such acts did not destroy the unity of the husband and wife, which treats them as equals in respect to estates of this character, but removed the jus mariti, "without affecting in any other way the estates granted to the wife alone or to the husband and wife as tenants by the entireties." The discussion of the principle is so full and complete in that case that it is unnecessary for our purpose here to do other than refer to it. Attention is called in the opinion to section 2878, R. S. 1909, which in express terms allows conveyances to husband and wife to retain their common-law effect. [1] I. An estate by the entireties is created by a conveyance to the husband and wife by [4-8] III. It is finally urged by the appela deed in the usual form. It is one estate lant that the conveyance in this case by its vested in two individuals who are by a fic-terms creates a tenancy in common, and not tion of law treated as one person, each being an estate by the entireties. They invoke the vested with entire estate. Neither can dis rule laid down so often that the intention pose of it or any part of it without the con- of the parties to an instrument of this charcurrence of the other, and in case of the acter must control even as against words death of either the other retains the estate. having a technical legal meaning, and seem It differs from a joint tenancy where the sur-to fear that the lure of technical refinement vivor succeeds to the whole estate by right and scholarly exegesis may cause the intenof the survivorship; in an estate by entireties tion, in a case like this, to be passed by. the whole estate continues in the survivor. The estate remains the same as it was in the They call attention to the recital in the first place, except that there is only one ten-premises of the deed "H. H. Ashbaugh and ant of the whole estate whereas before the Elizabeth Ashbaugh, his wife, each an undi death there were two. [2] In the recent case of Stifel's Union Brewing Co. v. Saxy, No. 18792, 201 S. W. 67, decided by this court at the present term and not yet reported, the authorities in this and other states were reviewed at length, and the doctrine as it always has existed in this state was restated with completeness and precision. It was held in that case, upon the point in issue, that the interest of the husband in lands held by himself and his wife by the entireties could not be subjected to the payment of his debts. This would seem to dispose of the claim of the executor in this case, and likewise the claim of the attempted devisee, Dean Ashbaugh, provided the deed by which the title here was conveyed to the Ashbaughs created an estate by the entireties in Henry Ashbaugh and the plaintiff. vided one-half interest." It is claimed that here is an express intention to create a A conveyance almost exactly like this was construed by this court in the case of Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. St. Rep. 619, 2 Ann. Cas. 557. The deed in that case conveyed to the husband and wife an estate by the entireties in the orderly parts of the deed, the granting clause, the habendum and the warranty, but in the recital in the premises of the deed, after naming the parties of the first and second part, used this expression: [3] II. It is argued by the appellants that the married women's acts (sections 8304, 8307-8309) have changed the common-law rule which recognized the doctrine of estate by the entireties; it is not claimed that any statute in express terms destroys the estate, but that the common-law rule in that respect "is inconsistent with the legislative policy of the state," as indicated by the several statutes emancipating married women from the control and domination of their husbands in relation to their property. The Saxy Case, just cited, settles that proposition. It is there This was followed by the granting clause, held that the purpose and effect of the stat- the description, habendum, and warranty. "That is to say, to the said William Cook the one undivided one-half interest and the said Mary E. Cook the other one undivided half interest in the following described land." ICE COMMISSION OF MISSOURI. (No. 20374.) (Supreme Court of Missouri, Division No. 2. Jan. 5, 1918. Motion for Rehearing Overruled Feb. 16, 1918.) an apparent intention to vest in the grantees tenancy in common. In that respect it dif- KANSAS CITY RYS. CO. v. PUBLIC SERVfers from the deed under consideration. The court held that if the conveyancer had known the difference between a tenancy in common and a tenancy by entireties he would have put in the proper place words creating the estate intended, and since he put the language mentioned in the premises as a recital, he did not know what the words meant, and therefore it could not be said that there was an intention to create a tenancy in common. It was held that if the words were to be given any meaning in the place where they were stated it was probably the intention to give assurance to the wife that she was to have as much interest in the land as her husband, and they would not, where they appeared, change the common-law effect of the granting clause and the habendum in the deed. In determining the intention of the parties to an instrument of this character, effect must be given the usual and ordinary meaning attached to the language used in such instruments, and it cannot be said that the intention is made different by random, uncertain, and inconclusive phrases inserted by an ignorant scrivener. As is sometimes said, the intention of the grantor in a conveyance must control, unless it conflicts with some inflexible rule of law; or, as otherwise expressed, the courts will not be swerved from the law because some grantor or conveyancer has attempted to do what the settled rules of law will not permit. Utter v. Sidman, 170 Mo. 284, 70 S. W. 702; Waldermeyer v. Loebig, 222 Mo. 540, 121 S. W. 75; Cornwell v. Wulff, 148 Mo. 542, loc. cit. 571, 50 S. W. 439, 45 L. R. A. 53. It is a general rule that the intention must be ascertained from the language used, from what the grantor actually said, and not what he may have meant to say. It is likewise a general rule that operative words are necessary to vest an estate. McKinney v. Set tles, 31 Mo. 541; Becker v. Stroeher, 167 Mo. loc. cit. 322, 66 S. W. 1083; Coffman v. Gates, 110 Mo. App. loc. cit. 486, 85 S. W. 657; 13 Cyc. 542. In the deed here no operative words follow or precede the recital, nor are there any words to indicate a desire to have an undivided one-half interest in the land vest in the grantees. No intention appears which would prevent the vesting of an estate by entireties. The judgment of the circuit court is affirmed. ROY, C., concurs. 1. STREET RAILROADS 52 ISSUANCE OF AMINATION OF BONDS-FEES. 5- Ex Public Service Commission Act, § 21, authorizing the assessment of fees against public service corporations with certain exceptions imposes a tax payable to the state, and the exception is not to be construed strictly against the assessment of fees, but is to be construed strictly in favor of the state. Appeal from Circuit Court, Cole County; J. G. Slate, Judge. Certiorari by the Kansas City Railways Company to review an order of the Public Service Commission requiring payment of certain fees. From a judgment affirming the order of the Commission, the Railways Company appeals. Affirmed. Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellant. Alex Z. Patterson, Gen. Counsel, and James D. Lindsay, Ass't Counsel, both of Jefferson City, for respondent. WHITE, C. The appellant began this proceeding in the circuit court of Cole county to review on certiorari an order of the Public Service Commission, whereby the appellant was required to pay fees to the comPER CURIAM. The foregoing opinion by mission amounting to nearly $10,000, for WHITE, C., is adopted as the opinion of services rendered appellant by the commisthe court. All the Judges concur. sion in connection with a bond issue of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes about $28,000,000. The circuit court affirmed the order of the commission, and from that judgment appeal is taken. The fees charged, to which the appellant objects, were authorized, as claimed by respondent, by section 21 of the Public Service Commission Act (Laws 1913, p. 567). This section provides that the commission may charge as fees for a certificate authorizing the issuance of bonds, notes, or other evidences of indebtedness, $1 for each $1,000 of the face value of the authorized issue, or fraction thereof, up to $1,000,000, and 50 cents for each $1,000 over $1,000,000 and up to $10,000,000, and 25 cents for each $1,000 over $10,000,000, with a minimum fee in any case of $250. The section then contains this proviso: "Provided, that no fee shall be charged when such issue is made for the purpose of guaranteeing, taking over, refunding, discharging or retiring any bond, note or other evidence of indebtedness up to the amount of the issue guaranteed, taken over, refunded discharged or retired." The appellant claims that the order in this case is covered by the proviso, and the commission had no authority to charge such fees; that the bonds were issued for the purpose of refunding an existing indebtedness of the company. In order to determine the purpose and character of the bonds it will be necessary to consider the facts leading up to the creation of the appellant company: In 1913 the street railway systems and the electric light and power properties in Kansas City were being operated by receivers appointed by the federal court, the order of appointment having been made in June 1911. At the time of the appointment of the receivers, the Metropolitan Street Railway Company was operating all the properties as the owner, having acquired them from several different companies and consolidated them into one system. These several properties were subject to separate mortgages, which had been executed by the several owning companies at different times. The several companies had received franchises from Kansas City under which the properties were being operated by the receivers and all these franchises were soon to expire. It does not appear at whose instance nor in what kind of a proceeding the receivers were placed in charge of these consolidated properties and the Metropolitan ousted from control, but it does appear that the city claimed the franchises had been forfeited. In the proceeding there were decrees of foreclosure, presumably of the several mortgages, under which all the properties were sold, and the appellant herein became the purchaser of all the street railways and other property necessary for their proper operation; while another company, the Kansas City Light & Power Company, became the purchaser of the electric light and power properties which were involved in the The plan con Before such foreclosures Judge William C. Hook of the federal Circuit Court, under whose authority the properties were operated by the receivers, formulated a plan for what is termed the "reorganization of the Metropolitan Street Railway System at Kansas City." "The plan" was not a court order, but the formulation of an agreement between the parties interested under which the several properties might be operated for the advantage of the public service and under which the creditors of the several companies might be saved their investments. tained, among other things, provisions as to how any one who might have "an interest to subserve or protect" might be a party to it. This applied to bondholders, mortgagees, etc., as well as stockholders, and any of these parties could become interested in the new company to be formed. The appellant company then was incorporated. Who the stockholders were does not appear, whether they comprised all or a part of the original stockholders in the Metropolitan company, or of the other original companies, or whether they were bondholders, or strangers. The new company first procured from Kansas City a franchise whereby it could operate its street railways upon the streets for a term of 30 years. This franchise, it appears, was one of the principal assets of the new company which was presented as security for the loans to be procured thereafter on the property. The plan provided that as further security for the bonds to be issued $6,300,000 of the surplus earnings should be used for extension and additions to the property. then provided for the issuance by the appellant company of bonds of various grades amounting in all to about $28,000,000, secured by mortgage on the appellant's property to be purchased under the foreclosure sales above mentioned with contemplated extensions and upon the new franchise. The Kansas City Light & Power Company acquired at the same time and under the same conditions and under the same plan the electric lighting and power properties that previously had belonged to the several companies. The result, as aptly stated by the respondents, was, "the reorganization was the working out of a plan whereby the two distinct and new companies holding distinct properties should emerge out of the corporate ashes of the numerous old companies." was only with the railways company that the order under consideration here had to do. The plan It The plan of reorganization contemplated the approval of the Public Service Commission, to which application was made by the appellant for authority to exercise the rights and privileges granted under the franchise, and for an order approving the reorganization of the properties which the new company should control, and permitting the issuance of the securities mentioned. Objection was |