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405, 68 Atl. 450; Patton v. Rankin, 68 Ind. , setts and Michigan. All the other courts of 245, 34 Am. Rep. 251; 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. hare 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 "To hold the judgment to be a lien at all v. Johnston, 173 Mo. loc. cit. 114, 73 S. W. against this property, and the right of execution 202, 61 L. R. A. 166, 96 Am. St. Rep. 486, suspended during the life of the wife, and to attention was called to the fact that Hall v. be enforced on the death of the wife, would we think likewise incumber her estate, and be in Stephens was obiter dictum on the point here contravention of the constitutional provision involved. In Bains v. Bullock, 129 Mo. 117, heretofore mentioned, protecting the wife's prop- 31 S. W. 342, it was held that the Married erty from the husband's debts. It is clear, we think, if the judgment here is declared a 'lien, Women's Act of 1889 (sections 6864 and 6869) but suspended during the life of the wife and did affect the wife's right in the estate by not enforceable until her death, if the husband the entirety, and that it enabled the wife, should survive the wife, it will defeat the sale without joining the husband, to sue any perhere made, by the husband and wife to the purchaser, and thereby make the wife's prop

son other than the husband for the posseserty liable for the debts of her husband." sion of the land. That case did not deter

[9] Leaving out of view for the present mine what effect the statute had on the the decisions of the courts of this state, we rights of the husband and wife as between conclude that where a judgment and execu- themselves. But it does say (129 Mo. loc. tion thereon are against a husband alone, not cit. 120, 31 S. W. 343): including the wife, such judgment and exe “But it is also true that the grant vests in cution cannot affect in any way property abolishes the legal unity between husband and

each grantee the entire estate. The statute held by them by the entireties, nor can it wife, which gave rise to estates by the entirety, affect any supposed separate interest of the but the estate itself has not been abolished.” husband therein, for he has no separate in

The question here involved was not in isterest.

sue in that case, and the authorities were We will now consider the decisions in this not there reviewed. We respectfully submit state. In Gibson v. Zimmerman, 12 Mo. 385, that if there had been such a review, it 51 Am. Dec. 168, it was said:

would not have been there said that "the “They are each the owner of the whole, but statute abolishes the legal unity between husnot of the half. They must both join in a conveyance. They are both necessary to make band and wife, which gave rise to the esone grantor."

tate by the entirety.” However, we have no It was also there said:

special quarrel with that case. It holds, in "And it is difficult to assign any good reason effect at least, that such estate still exists, why survivorship between husband and wife is freed by the statute from the jus mariti. prejudicial to the commonwealth, or repugnant Valliant, J., in Frost v. Frost, 200 Mo. 474, to the genius of republics." The Legislature, by section 2878 of our Re- loc. cit. 483, 98 S. W. 527, 528 (118 Am. St.

Rep. 689), said: vised 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 posses

sion and control of the property held as an espressly declared to be a joint tenancy.

tate 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. We hold that, as a result of the married Stephens: (1) As we have above stated, only women's acts, the husband, during their joint two states hold to that opinion, Massachu- lives, has no interest in land held as ten

In

ants by the entirety that can be sold under 7. DEEDS 36 VECESSITY FOR OPERATIVE
execution for the sale debt of the husband. Words.
The decree of the trial court is affirmed.

Operative words in a conveyance are necessary to vest an estate.

8. HUSBAND AND WIFE 14(2)–ESTATE BY WHITE, C., concurs.

ENTIRETIES-DEED CREATING.

A deed to husband and wife, which in the PER CURIAM. The foregoing opinion of premises referred to the grantees as “H. H. A. ROY, C., is adopted as the opinion of the and E. A., his wife, each an undivided onecourt. All the Judges concur.

half 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 preASHBAUGH V. ASHBAUGH et al.

ceding the recital, and there being no words to

indicate a desire to have an undivided half in(No. 18925.)

terest in the lands vest in each of the grantees. (Supreme Court of Missouri, Division No. 2.

Appeal from Circuit Court, Lincoln CounFeb. 16, 1918.)

ty; E. B. Woolfolk, Judge. 1. HUSBAND AND WIFE 14(2)—“ESTATE BY Action by Elizabeth Ashbaugh against Dean THE ENTIRETIES"-CREATION.

Ashbaugh and others. From a judgment for An "estate by the entireties” is created by plaintiff, defendants appeal. Judgment afa conveyance to husband and wife by deed in the usual form, being one estate vested in two

firmed. individuals, who, by a fiction of law, are treated

R. H. Norton and Avery, Dudley & Killam, as one person, each being vested with an entire estate, of which, or any part of it, neither all of Troy, for appellants. Frank J. Duvall, can dispose without the concurrence of the of Clarksville, and Hostetter & Haley, of other, while in case of the death of either the Bowling Green, for respondent. other retains the estate, which differs from a joint tenancy, where the survivor succeeds to the whole estate by right of survivorship, in an

WHITE, C. The action was brought under estate by the entireties, the whole estate con- section 2535, R. S. 1909, to determine title tinues in the survivor.

to 42 acres of land in Lincoln county. The [Ed. Note.-For other definitions, see Words plaintiff is the widow of Henry H. Ashbaugh, and Phrases, First and Second Series, Entirety.) deceased. The defendant Dean Ashbaugh is 2. HUSBAND AND WIFE Omw14(11)-WILLS 6-ESTATE BY ENTIRETIES HUSBAND'S

the son by a former marriage of Henry H. DEBTS-DEVISE.

Ashbaugh. The plaintiff claims title to the The interest of a husband in lands held by tract as an estate by entireties under a conhimself and his wife by the entireties after his veyance made to her and Henry H. Ashbaugh, death cannot be subjected to the payment of his debts, and a half interest in the land cannot be as husband and wife, during said Asmaugh's devised by him.

lifetime. The conveyance was made in 1909, 3. HUSBAND AND WIFE Em 14(8)-EstatE BY and Henry Ashbaugh died on April 11, 1914. ENTIRETIES-MARRIED WOMEN'S ACTS. The defendant son claims under the will of

In view of Rev. St. 1909, § 2878, allowing Henry H. Ashbaugh, which purported to give conveyances to husband and wife to retain their him a half interest in the 42-acre tract mencommon-law effect, the married women's acts (Rev. St. 1909, 88 8304, 8307-8309) have not tioned, and a half interest to the plaintiff, changed the common-law rule recognizing the widow. doctrine of an estate by the entireties in hus

During the life of Henry H. Ashbaugh he band and wife.

and his wife joined in a deed of trust con4. HUSBAND AND WIFE w14(7)–TENANCY IN veying this land to H. H. Robinson, trustee COMMON OR ENTIRETY.

In determining the intention of the parties for Mary J. Taylor, cestui que trust, to secure to a deed conveying land to husband and wife a debt, and by reason of their interest in the to settle whether the instrument created a ten- property thus acquired those two were made ancy in common or an estate by the entireties, the intention of the parties being controlling, parties defendant. Paul Gibson, executor of effect must be given the usual and ordinary the last will of Henry H. Ashbaugh, was meaning attached to the language used, and the made party defendant, and in his answer set intention cannot be said to be made different by up that the personal estate of Henry H. Ashrandom, uncertain, and inconclusive phrases inserted by an ignorant scrivener.

baugh was insufficient to pay the debts which 5. DEEDS 93-CONSTRUCTION-INTENTION

had been allowed against the estate, and OF GRANTOR.

that the land mentioned was liable for the The intention of a grantor in a conveyance payment of such debts. must control, unless conflicting with some inflexible rule of law, or, to put it otherwise, the

The conveyance by which Henry H. Ashcourts will not be swerved from the law because baugh and his wife acquired title to the land some grantor or conveyancer has attempted to begins as follows: do what the settled rules of law will not permit. 6. DEEDS Om95-CONSTRUCTION-INTENTION

"General Warranty Deed. OF GRANTOR.

"This indenture, made on the 11th day of SepThe intention of the grantor in a deed must tember, A. D. one thousand nine hundred and be ascertained from the language used, from nine, by and between John A. Crank and Laura what the grantor actually said, and not what he Crank, his wife, of Lincoln county, Missouri, may have meant to say.

parties of the first part, and H. H. Ashbaugh Aww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1 1 1

1 1 1 1 1 1 1

and Elizabeth Ashbaugh, his wife, each an un- destroy the quality of any estate which the divided one-half interest, of the county of Pike, wife might have, but to protect her property in the state of Missouri, parties of the second part, witnesseth: That the said parties of the by removing it from the control of her husfirst part, in consideration of the sum of one band and giving it into her management; dollar and other valuable consideration to them that such acts did not destroy the unity of the paid by the said parties of the second part, the husband and wife, which treats them as receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell,"convey equals in respect to estates of this character, and confirm, unto the said parties of the second but removed the jus mariti, "without affectpart, their heirs and assigns the following de- ing in any other way the estates granted to scribed lots, tracts or parcels of land, lying, the wife alone or to the husband and wife being and situate in the county of Lincoln and state of Missouri, to wit.”

as tenants by the entireties." The discussion

of the principle is so full and complete in Then follows a description of the land, that case that it is unnecessary for our purand habendum and warranty clauses to par- pose here to do other than refer to it. ties of the second part, in the usual form.

Attention is called in the opinion to secThe judgment was for the plaintiff, and de- tion 2878, R. S. 1909, which in express terms fendants appealed. [1] 1. An estate by the entireties is created retain their common-law effect.

allows conveyances to husband and wife to by a conveyance to the husband and wife by a deed in the usual form. It is one estate lant that the conveyance in this case by its

[4-8] III. It is finally urged by the appelvested 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 death of either the other retains the estate. having a technical legal meaning, and seem

acter must control even as against words It differs from a joint tenancy where the survivor succeeds to the whole estate by right to fear that the lure of technical refinement of the survivorship; in an estate by entireties

and scholarly exegesis may cause the intenthe whole estate continues in the survivor. tion, in a case like this, to be passed by. 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 undideath there were two.

vided one-half interest." It is claimed thai [2] In the recent case of Stifel's Union here is an express intention to create a Brewing Co. v. Saxy, No. 18792, 201 s. w. tenancy in common. It will be noted that 67, decided by this court at the present this expression appears in the premises of term and not yet reported, the authorities in the deed as a recital merely. It is followthis and other states were reviewed at length, ed by the granting clause which is in the usand the doctrine as it always has existed in ual form. The recital in question does not this state was restated with completeness and appear in the orderly parts of the deed, the precision. It was held in that case, upon the part by which an estate is vested, limited, point in issue, that the interest of the hus- and warranted; it does not by any language band in lands held by himself and his wife by purport to vest in the grantees an undivided the entireties could not be subjected to the half interest, and does not say in what they payment of his debts. This would seem to are to have an undivided half interest. It dispose of the claim of the executor in this might as well be in the consideration paid, case, and likewise the claim of the attempted so far as the terms of an instrument go, as devisee, Dean Ashbaugh, provided the deed in the property conveyed. by which the title here was conveyed to the

A conveyance almost exactly like this was Ashbaughs created an estate by the entireties construed by this court in the case of Wilson in Henry Ashbaugh and the plaintiff.

v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. [3] II. It is argued by the appellants that St. Rep. 619, 2 Ann. Cas. 557. The deed in the married women's acts (sections S304, that case conveyed to the husband and wife 8307-8309) have changed the common-law rule an estate by the entireties in the orderly which recognized the doctrine of estate by the parts of the deed, the granting clause, the entireties; it is not claimed that any statute habendum and the warranty, but in the rein express terms destroys the estate, but that cital in the premises of the deed, after namthe common-law rule in that respect “is in- ing the parties of the first and second part, consistent with the legislative policy of the used this expression: state," as indicated by the several statutes "That is to say, to the said William Cook the emancipating married women from the con- Mary E. Cook the other one undivided half in

one undivided one-half interest and the said trol and domination of their husbands in re- terest in the following described land." lation 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. utes relating to married women was not to It shows, therefore, the clear expression of

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an apparent intention to vest in the grantees
tenancy in common. In that respect it dif- KANSAS CITY RYS. CO. v. PUBLIC SERV-
fers from the deed under consideration. The ICE COMMISSION OF MISSOURI.
court held that if the conveyancer had known

(No. 20374.)
the difference between a tenancy in common (Supreme Court of Missouri, Division No. 2.
and a tenancy by entireties he would have

Jan. 5, 1918. Motion for Rehearing Over

ruled Feb. 16, 1918.) put in the proper place words creating thu

1. STREET RAILROADS Ow52 ISSUANCE OF estate intended, and since he put the lan

BONDS-PUBLIC SERVICE COMMISSIONS. guage mentioned in the premises as a recital, Public Service Commission Act (Laws 1913, he did not know what the words meant, and p. 567) $ 21, relating to fees of the Public Servtherefore it could not be said that there was issues of carriers, and prohibiting charging fees

ice Commission for approving corporate bond an intention to create a tenancy in common. for refunding bond issues approved by the comIt was held that if the words were to be mission, does not authorize the issuance of any given any meaning in the place where they bonds, and cannot enlarge section 57, stating

the purposes for which bonds may be issued, were stated it was probably the intention to

nor section 62, making reorganization of railgive assurance to the wife that she was to road corporations subject to control of the comhave as much interest in the land as her mission, husband, and they would not, where they ap

2. STREET RAILROADS 52 ISSUANCE OF

Boxbs -- PURPOSE,"REFUNDING BONDS''peared, change the common-law effect of the

FEES OF PUBLIC SERVICE COMMISSIONS. granting clause and the habendum in the Public Service Commission Act, $ 57, audeed.

thorizes street railroad and other companies to In determining the intention of the parties of property, the construction, completion, ex

issue bonds when necessary for the acquisition to an instrument of this character, effect tension, or improvement of its facilities, or for must be given the usual and ordinary mean the improvement or maintenance of its service ing attached to the language used in such or for the discharge “or lawful refunding of its

obligations,” or for the reimbursement of moninstruments, and it cannot be said that the eys actually expended from income. Section 21 intention is made different by random, uncer- of the act provides that the commission may tain, and inconclusive phrases inserted by an charge as fees for a certificate authorizing the ignorant scrivener. As is sometimes said, the be charged when such issue is made

for the pur

issuance of bonds, provided that no fee shall intention of the grantor in a conveyance nust pose of refunding any bond. Held, that bonds control, unless it conflicts with some inflexi-issued by a new street railroad company to ble rule of law; or, as otherwise expressed, purchase at foreclosure salo the property of

several old companies

not "refunding
the courts will not be swerved from the law bonds" for payment of its obligations within
because some grantor or conveyancer has at the meaning of section 57 and the proviso of
tempted to do what the settled rules of law section 21; consequently the new company was

liable for the fees.
will not permit. Utter v. Sidman, 170 Mo. 3. PUBLIC SERVICE COMMISSIONS Om5 – Ex-
284, 70 S. W. 702; Waldermeyer v. Loebig, AMINATION OF BONDS-FEES.
222 Mo. 540, 121 S. W. 75; Cornwell v. Wulff, Public Service Commission Act, $ 21, au-
148 Mo. 542, loc. cit. 571, 50 S. W. 439, 45 thorizing the assessment of fees against public

rice corporations with certain exceptions
L. R. A. 53.

imposes a tax payable to the state, and the ex-
It is a general rule that the intention must ception is not to be construed strictly against
be ascertained from the language used, from the assessment of fees, but is to be construed

strictly in favor of the state.
what the grantor actually said, and not what
he may have meant to say. It is likewise

Appeal from Circuit Court, Cole County;

J. G. Slate, Judge.
a general rule that operative words are nec-
essary to vest an estate. McKinney v. Set-

Certiorari by the Kansas City Railways
tles, 31 Mo. 541; Becker v. Stroeher, 167 Mo. Company to review an order of the Public

Service Commission requiring payment of loc. cit. 322, 66 S. W. 1083; Coffman y. Gates, 110 Mo. App. loc. cit. 486, 85 S. W. 657; 13 ) certain fees. From a judgment affirming the

order of the Commission, the Railways Com-
Cyc. 512. In the deed here no operative

pany appeals. Affirmed.
words follow or precede the recital, nor are
there any words to indicate a desire to have Clyde Taylor and Charles A. Stratton, both
an undivided one-half interest in the land of Kansas City, for appellant. Alex Z. Pat-
vest in the grantees. No intention appears terson, Gen. Counsel, and James D. Lindsay,
which would prevent the vesting of an estate Ass't Counsel, both of Jefferson City, for re-
by entireties.

spondent.
The judgment of the circuit court is af-
firmed.

WHITE, C. The appellant began this pro-
ceeding in the circuit court of Cole county

to review on certiorari an order of the PubROY, C., concurs.

lic Service Commission, whereby the appel

lant 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

1

1 1

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

about $28,000,000. The circuit court affirmed Before such foreclosures Judge William C. the order of the commission, and from that Hook of the federal Circuit Court, under judgment appeal is taken.

whose authority the properties were operated The fees charged, to which the appellant by the receivers, formulated a plan for what objects, were authorized, as claimed by re- is termed the "reorganization of the Metrospondent, by section 21 of the Public Service politan Street Railway System at Kansas Commission Act (Laws 1913, p. 567). This City.” “The plan" was not a court order, but section provides that the commission may the formulation of an agreement between the charge as fees for a certificate authorizing parties interested under which the several the issuance of bonds, notes, or other evi- properties might be operated for the advandences of indebtedness, $1 for each $1,000 tage of the public service and under which of the face value of the authorized issue, or the creditors of the several companies might fraction thereof, up to $1,000,000, and 50 be saved their investments. The plan concents for each $1,000 over $1,000,000 and up tained, among other things, provisions as to to $10,000,000, and 25 cents for each $1,000 how any one who might have "an interest to over $10,000,000, with a minimum fee in any subserve or protect" might be a party to it. case of $250. The section then contains this This applied to bondholders, mortgagees, etc., proviso:

as well as stockholders, and any of these par“Provided, that no fce shall be charged when ties could become interested in the new comsuch issue is made for the purpose of guaran- pany to be formed. The appellant company teeing, taking over, refunding, discharging or retiring any bond, note or other evidence of in- then was incorporated. Who the stockhold. debtedness up to the amount of the issue guar- ers were does not appear, whether they comanteed, taken over, refunded discharged or re- prised all or a part of the original stockholdtired.”

ers in the Metropolitan company, or of the The appellant claims that the order in this other original companies, or whether they case is covered by the proviso, and the com were bondholders, or strangers.

The new mission had no authority to charge such fees; company first procured from Kansas City a that the bonds were issued for the purpose franchise whereby it could operate its street of refunding an existing indebtedness of the railways upon the streets for a term of 30 company. In order to determine the purpose years. This franchise, it appears, was one and character of the bonds it will be nec- of the principal assets of the new company essary to consider the facts leading up to the which was presented as security for the loans creation of the appellant company:

to be procured thereafter on the property. In 1913 the street railway systems and the The plan provided that as further security for electric light and power properties in Kansas | the bonds to be issued $6,300,000 of the surCity were being operated by receivers ap- plus earnings should be used for extension pointed by the federal court, the order of ap- and additions to the property. The plan pointment having been made in June 1911. then provided for the issuance by the appelAt the time of the appointment of the receiv- lant company of bonds of various grades ers, the Metropolitan Street Railway Com- amounting in all to about $28,000,000, sepany was operating all the properties as the cured by mortgage on the appellant's properowner, having acquired them from several ty to be purchased under the foreclosure different companies and consolidated them sales above mentioned with contemplated exinto one system. These several properties tensions and upon the new franchise. The were subject to separate mortgages, which Kansas City Light & Power Company achad been executed by the several owning com- quired at the same time and under the same panies at different times. The several com- conditions and under the same plan the elecpanies had received franchises from Kansas tric lighting and power properties that preCity under which the properties were being viously had belonged to the several compaoperated by the receivers and all these fran- nies. The result, as aptly stated by the rechises were soon to expire. It does not ap- spondents, was, “the reorganization was the pear at whose instance nor in what kind of working out of a plan whereby the two disa proceeding the receivers were placed in tinct and new companies holding distinct charge of these consolidated properties and properties should emerge out of the corporate the Metropolitan ousted from control, but it ashes of the numerous old companies." It does appear that the city claimed the fran- was only with the railways company that the chises had been forfeited. In the proceeding order under consideration here had to do. there were decrees of foreclosure, presumably The plan of reorganization contemplated of the several mortgages, under which all the the approval of the Public Service Commisproperties were sold, and the appellant here- sion, to which application was made by the in became the purchaser of all the street rail- appellant for authority to exercise the rights ways and other property necessary for their and privileges granted under the franchise, proper operation; while another company, and for an order approving the reorganizathe Kansas City Light & Power Company, be- tion of the properties which the new company came the purchaser of the electric light and should control, and permitting the issuance power properties which were involved in the of the securities mentioned. Objection was litigation.

made to this application by certain citizens of

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