property, although used and disposed of by the husband, unless she shall have expressly consented in writing that he might dispose of it for his own use and benefit. In this case plaintiff's deceased husband, through a series of years, did use and dispose of the rents and profits of her land without her consent in writing. And her counsel, in effect, says: There is the letter of the statute, in which it is declared that her property has been taken from her without her consent being given in the only way the law will permit her to give it; therefore a liability has necessarily arisen to compensate her for its unlawful taking. Looking straight at the statute, without a glance to either side, counsel is right, and our duty would be done in directing that the plaintiff have her recom pense. [2] But ought not the reason of the thing to have its weight? It is true that plain terms of a statute should not be argued away by logic or reason, for it is said that the command of a statute is reason enough for those to whom it is addressed. Yet we all know that unless there is something on the face of the law which requires that reason should be excluded, it necessarily must have its weight and influence in determining the meaning of the law. [3] There are two things which must be admitted in arriving at a correct determination of this controversy: One is that the Legislature ought not to be said to have intended a law to have application to a situation where it would not be possible to apply it; and the other is that literal effect cannot be given to this statute in all instances which arise between a husband and wife amicably and jointly presiding over a family. It reads that the income from her real estate is her property, and its use or disposal by the husband does not make it his; and plaintiff has cited us many cases where the husband has attempted to convert the wife's note or other personalty by transferring same to others without her express written consent, in which it is held that it would remain hers and might be recovered from the transferee. McGuire v. Allen, 108 Mo. 403, 18 S. W. 282; Hurt v. Cook, 151 Mo. 416, 52 S. W. 396; McKee v. Downing, 224 Mo. 115, 124 S. W. 7: Egger v. Egger, 225 Mo. 116, 123 S. W. 928, 135 Am. St. Rep. 566; Moeckel v. Heim, 46 Mo. App. 340; Nunn v. Carroll, 83 Mo. App. 135. But those cases do not present the situation of the parties to this controversy; nor do any others which plaintiff has cited. Here the husband and wife lived together in domestic peace and contentment, and the rents of the farm were collected and disposed of by him; he supporting and providing for the family, with no thought by either of a debtor and creditor relationship. The bread upon the table may be made of the wheat or corn which the husband has gotten as rent from the wife's farm. He eats it, and thereby uses and consumes the "income and profits" of her land. Must he have her express written consent in writing? Plaintiff's position is that no other kind will destroy the wife's right of property. Husband, wife, and family, at her verbal request, visit a neighboring town and enjoy its entertainments. He has used rent money of her land for expenses, including that of himself and the children. Should he have gotten her written consent expressly directing how this was to be done? Endless illustrations could be given, showing the literal terms of the statute cannot be applied to all of the conditions which do necessarily attend harmonious marital life. Authorities in other states support this statement, though their statutes are not, in all respects, like ours. Most of them secure to the wife a separate estate, with its income free from the claim of her husband, in much the same manner ours does. The only one we have been cited to, containing a restriction practically like ours on the mode of acquisition of such property by the husband, is that of Pennsylvania. The statute of New York secured to the wife, as her separate property, her real estate "and the rents, issues and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts." In that state, where the wife without objection permitted the husband to use rents of her real estate partly, at least, in support of the family, as if his own, it was held she could not afterwards compel him to account to her. Smith v. Smith, 125 N. Y. 224, 229, 26 N. E. 259. In Indiana it is held that where she is living in harmony with her husband, and allows him to use and dispose of the income of her property, as distinguished from the property itself, and thereby encouraging him to live in manner and style more expensive, she cannot, after his death, set up a claim thereto and perhaps impoverish his estate. Bristor v. Bristor, 93 Ind. 281. [4] As stated above, our statute (section 8309) reads that the husband's use and disposal of the rents and income of his wife's separate property is required to be by her express written consent. At the same time, other parts of the statute should have influence in the construction of that particular part. The wife may now contract with the husband as if sole (Rice v. Sally, 176 Mo. 107, 75 S. W. 398), and the rents and income from her separate estate are liable for support of the family (sections 8308, 8309, R. S. 1909). If she, while living amicably with her husband, in joint care of the family and jointly interested in its well-being, foregoes her privilege of exacting a contract from him to repay her the income of her property, which she knows he is collecting, and which she is necessarily enjoying, directly or indirectly, should she be permitted, after a long series of years of peaceful married life, | by the husband to pay interest, none was and after his death,, to set up a claim, chargeable, and, as was done by the Supreme which no limitation could bar, it would work Court of Iowa, cited the common liability of a great wrong. McGlinsey's Appeal, 14 Serg. the wife with the husband to aid in support & R. (Pa.) 64. of the family, as provided by our statute above cited. An Iowa statute secures to the wife her separate property and its income, and, like our statute, permits her to maintain an action against the husband who has taken it | to himself. Another statute, like ours, makes her property liable for the support of the family. The Supreme Court of that state disallowed her claim, presented after his death, for using a part of the money arising from the collection of drafts. After referring to these sections of the statute, the court said: "These two sections are contained in the same chapter of the Code, and as they relate to the same subject-matter they must be construed together. Under the latter section the property of both husband and wife can be compulsorily made liable for the expenses of the family and the education of the children. Without doubt, we think, the same thing may be accomplished by voluntary action. If, therefore, a wife devotes her property to such purposes, or knows it is being done by her husband, and makes no objection, she does not thereby become the creditor of her husband, because she has only discharged a legal obligation resting on her, as well as her husband, and the latter did not agree or promise he would recompense her for so doing. Broad as section 2204 may seem to be, it should not be construed so as to include property which a wife knows is being applied from day to day through a period of years to the discharge of a legal obligation resting on her equally with her husband. Her consent that it should be so applied must be presumed, and if she desires to hold her husband liable for such property at some future day she should obtain his obligation or promise to pay. This much, at least, is required before she can become the creditor of her husband under the circumstances of this case." Courtright v. Courtright, 53 Iowa, 57, 4 N. W. 824. Though our statute requires the wife's written consent, we, with defendant's counsel, have thought proper to investigate the views of courts in jurisdictions which have not such restrictive statute, with a view to a better understanding of the decisions in our own courts to which we will now refer. In Bank v. Winn, 132 Mo. 80, 90, 33 S. W. 457, where creditors were claiming that a conveyance from husband to wife to secure her for money used by him with her acquiescence, which she had inherited, was fraudulent, there was evidence tending to show that the land conveyed was of greater value than his debt to the wife. In order to increase the debt, the wife contended she was entitled to interest. But, notwithstanding there was no written consent, the court Another case (Donovan v. Griffith, 215 Mo. 149, 169, 114 S. W. 621, 20 L. R. A. [N. S.] 825, 128 Am. St. Rep. 458, 15 Ann. Cas. 724), decided by our Supreme Court as late as 1908, was where the heirs of the deceased wife sought to have the surviving husband declared a trustee in certain lands the title to which was in his name, and certain other lands the title to which was in the joint names of the husband and the deceased wife. The question arose whether the husband should be charged with rents collected and disposed of by him. The court held that he should not be. We cannot see how this plaintiff can escape the controlling authority of that case. The court stated that "it must not be overlooked that he and his wife were living together, both of whom doubtless enjoyed the benefits and products of such land. There is an entire absence of any dispute while they were living together as husband and wife, up to the time of her death, as to the control of the premises, or as to whom the rents should be paid." The court then refers to the right of the wife to have contracted with the husband, if she had desired to keep her claim on the rents she knew he was using, and stated that the law would not favor the implication of a contract where they were living together in harmony and enjoying the products of the land in a manner satisfactory to themselves. Besides these cases from our Supreme Court, defendant's counsel have cited a like decision made by us in an opinion by Smith, P. J. Holt v. Colyer, 71 Mo. App. 280. In addition to these cases from our own courts, we find that the statute in Pennsylvania secured to the wife her property as her separate estate and contained this provision, viz.: "Nor shall such property be sold, conveyed, mortgaged, transferred, or in any manner encumbered by her husband, without her written consent first had and obtained and duly acknowledged," etc. It was held in Hauer's Estate, 140 Pa. 420, 21 Atl. 445, 23 Am. St. Rep. 245, that where the wife, living in harmony with the husband, with no thought of debtor and creditor relationship, permits him to receive and use as his own the rents of her separate property, she cannot at his death recover them, without proof of an understanding that he was to account for them. The court distinguished between using the principal or corpus of the wife's property and merely the interest or income of it. [5] Plaintiff's counsel have sought to show that Donovan v. Griffith, supra, was inap plicable, for the reason stated that the hus Where a trustee had accepted the obligations of an express trust for the care of an imbecile child, created by will, and had been forced by the invalidity of the will of the husband of the testatrix to return the purchase price of property purchased from it, which was supposed to have passed to the testatrix, and thence to the trustee under the invalid will, it may recover such sum from the estate of the imbecile whose custody was undertaken. the real estate, and by an entertaining argu- | 3. TRUSTS (§ 312*)-SALE OF ESTATE-RECOVment, oral and written, it is maintained that ERY OF PURCHASE PRICE INVALIDITY OF WILL. one tenant in common is not liable to his cotenant for rents collected. It, however, will be observed that the court does not consider that feature of the case as in any way influencing its decision. Besides, while where there is an occupancy by one tenant in common, without demand of sharing by the other, the occupying tenant cannot be called to account for rents by the other, yet if one tenant rents the land and collects the rent, as in the Donovan Case, as to a part of the land, he will be held liable to the other. Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Rep. 407. Again, counsel seek to distinguish the Donovan Case by the assertion that it was dealing with an equitable separate estate, instead of a statutory separate estate involved in this case. We do not see where there is any difference, so far as concerns this question. Schouler, in his work on Domestic Relations (section 102), says that, in view of the sweeping character of the married woman's statutes, whatever distinction there is "becomes of comparatively little consequence." So a like statement is made by the court in Hauer's Estate, 140 Pa. loc. cit. 427, 21 Atl. 445, 23 Am: St. Rep. 245. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 431; Dec. Dig. § 312.*] McCulloch, C. J., dissenting. Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor. Action by the Sisters of Mercy against Ella Hare. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. This suit was brought by appellees to recover on a quantum meruit for the maintenance and support of Ella Hare, for 19 years, at the rate of $150 per month, and resulted in a judgment in their favor for $41,330.76, which the court declared a lien against her estate, and ordered the same sold in satisfaction thereof. From this judgment, the appeal comes. The mother of Ella Hare, an imbecile, dis The result of the foregoing views is to re- posed of her estate in Sebastian county by verse the judgment. All concur. HARE v. SISTERS OF MERCY. (Supreme Court of Arkansas. Nov. 18, 1912.) 1. WILLS (8 673*)-TRUSTS-CREATION. A will devised one-half of the testatrix's estate to certain Sisters of Mercy "for the support and maintenance" of a daughter of the testatrix during her life, and after the daughter's death "for the purpose to educate poor Catholic children." Held, that the testatrix did not incidentally state the motive which led her to make an absolute gift, but created an express trust by imposing an obligation for the support and maintenance of her daughter during her life. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1582-1584; Dec. Dig. § 673.*] 2. CHARITIES (§ 45*)-CARE OF INDIVIDUALS COMPENSATION-QUANTUM MERUIT. Where, under a will, a charitable organization was made trustee of an express trust for the support and maintenance of the testatrix's imbecile daughter, with the right to use all of said property not required for such purpose at its own discretion, and with no requirement for an accounting, and thereafter accepted the provisions of the trust and cared for the child for 19 years, it could not thereafter, without offering to return the trust moneys received, have payment upon a quantum meruit for the maintenance of the imbecile, even though the portion of the testatrix's estate devised them was not so productive as it was expected to be, on account of the invalidity of the will of the husband of the testatrix and father of the imbecile, as the parties cannot be placed in statu quo. [Ed. Note. For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.*] will; the clauses of same which are necessary to be considered being as follows: "I give, devise and bequeath to the Sisters of Mercy at Fort Smith, known as Saint Ann's Convent, one-half of all my estate, cies and bequest mentioned in this, my last real and personal, after deducting the legawill and testament, for the support and maintenance of my daughter Ella Hare, during her life, and after the death of my said daughter, Ella Hare, I give, devise and bequeath to the said Sisters of Mercy, the said half of my estate, real and personal, for the purpose to educate poor Catholic children. I give, devise and bequeath to the pastor of the parish of the Church of the Immaculate Conception, at Fort Smith, in the county of Sebastian, state of Arkansas, half of all my estate, real and personal, to be used by the said pastor for the said purposes of helping to establish a school in said parish for the education of Catholic boys and for helping to educate young men of the parish for the priesthood." John Hare, the husband of Mary A. Hare and the father of the imbecile, Ella Hare, died, possessed of a considerable estate, in 1883, making his wife the sole beneficiary in his will, and also his executrix. Appellee, the Sisters of Mercy, is a corporation, a benevolent, religious body, associated in its work with the Church of the Immaculate Conception at Ft. Smith, Ark., and has been since its organization in 1860. John and Mary A. Hare, deceased, were both members of said church. Mary A. Hare such conveyance A. A. McDonald was appointed guardian of Ella Hare, and brought suit to recover various pieces of land sold by the executrix of the estate of John Hare and the administrator of the estate of Mary A. Hare, and of said property which had belonged to the estate of said John Hare, which was sold to said Tillman Shaw, and recovered same; the will of said John Hare being declared invalid as to Ella Hare, his only surviving child, whose name was omitted therefrom. McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A. (N. S.) 657. The land recovered in said suits and now owned by said Ella Hare is of the reasonable value of $34,000, and consists, nearly all, of real estate in the city of Ft. Smith, a large part of which is unimproved. The Sisters of Mercy had to refund to Tillman Shaw $5,500, the half of the purchase price of said property, belonging to the estate of John Hare, sold by them to him. They took charge of Ella Hare upon the death of her mother, and have cared for her properly and well until now. She is an imbecile, about 40 years of age at this time, can neither talk nor walk, and has about as much intelligence as a child of three or four years, and has had constant nursing and attention and been well provided for during all this time. administered the estate of her said husband, | direction of the will of Mary A. Hare. After and the administration was closed long before her death in 1893; and at the close thereof the probate court of Sebastian county made an order vesting the entire estate of John Hare in her. The estate consisted of real estate in and near to Ft. Smith, of the value of about $26,000 at the time of her death. Only a small part of it was improved, and Mary A. Hare had no estate at the time of his death, but received $2,000 insurance on his life, erected some buildings on the real estate formerly owned by him, and acquired other real estate of her own, part of which she improved; and her real estate, when she died, was worth $9,800 and her personal estate $1,347.87, and the demands against her estate amounted to $4,276.55. After her death her administrator was appointed executor of the estate of Ella Hare, and, upon the court's finding that she was mentally incompetent, directed the payment to the Sisters of Mercy of $25 per month for her care, which was done as long as the administrator lived. After his death Sister Aloysius, now Mother Superior of appellee, was appointed guardian, and acted as such until A. A. McDonald was appointed. During the administration of her estate, appellee received from the administrators funds arising from the sale of real estate which belonged to John Hare at his death, and other sources, in all, the sum of $6,778.66. The settlements of the administrator of Mary A. Hare's estate show that he paid appellee, on Ella Hare's account from 1893 to 1904, the sum of $3,174.93, and that it received from the sale of lot 7 block 564, Reserve addition to the city of Ft. Smith, which belonged to the estate of Mary A. Hare, $9,000. During the administration of the estate, all the real property owned by John Hare at the time of his death, except that part of same sold and conveyed to Tillman Shaw, was sold by Matt Gray, administrator of her estate, who, at the time, received from said estate, $6,955 in addition to the $3,000 for lands condemned belonging to said estate of John Hare; and, in addition to these sums, he received, as shown by annual statements, exclusive of the fourth annual statement, which was lost, as such administrator, $15,187.63, rent on the improved property belonging to the estate of John Hare and Mary A. Hare; and his accounts show the disposition of all funds collected by him from all sources. Appellee, claiming to be the owner thereof through the will of Mary A. Hare, conveyed to Tillman Shaw certain property (three lots in the city of Ft. Smith and a tract of land known as the Hare wagon yard, which had belonged to the estate of John Hare) for $21,000, one of which lots, valued at $9,000, was the property of Mary A. Hare at the time of her death. The $21,000 received was equally divided between appellee and the pastor of the Church of the Immaculate Con Upon the recovery of that portion of said estate which belonged to John Hare, they brought this suit, alleging: "That Mary A. Hare believed, at the time of making her will, that she was the owner of all of the property devised to her by John Hare, and intended by her will to so devise all of said property, and thought she had done so. That plaintiff, at the time it assumed charge of Ella Hare, in good faith, believed that, under the will of Mary A. Hare, it was to receive not only such property as in fact belonged to the estate of Mary A. Hare but also such property as belonged to the estate of John Hare, and which Mary A. Hare intended to devise to plaintiff under her said will. That, acting upon such belief, it assumed the charge of Ella Hare, and was willing to be bound by the terms of said will as it and the said Mary A. Hare understood said will to be, and give the said Ella Hare such attention as she might need as long as she lived.” That because of the decree of the court, adjudging the will of John Hare invalid, and that Ella Hare was entitled to all of the real estate left by him at his death, "the consideration for the maintenance and support of said Ella Hare failed, and said plaintiff has not been paid for the support and maintenance of said Ella Hare for the time for which she has been taken care of, and that it was worth $150 per month, making a total of $31,500, for which judgment, with interest, was prayed." The answer denied the allegations of the no adequate compensation for the mainte- the will, and have since furnished her care, nance and care bestowed upon her, and says maintenance, and support. The will of John that by its own admission in its complaint Hare was inoperative to convey his estate to filed herein it has cared for her under and Mary A. Hare, and some of it has been reby virtue of the terms in the will of Mary covered by Ella Hare; and the Sisters of A. Hare," and alleges, further, that the es- Mercy have been required to refund $5,500, tates of both John Hare and Mary A. Hare that portion of the purchase money received have been wound up and finally settled, the by them from the sale of the one-half undiadministrators discharged, and that appel- vided interest of certain of his said property lee has received "from the estate of Mary A. which they sold and attempted to convey, Hare all it could ever hope to receive; and claiming to be the owner thereof, under the its obligation to support, maintain, and care will of Mary A. Hare. On that account they for this defendant as long as she lives was claim that the consideration for their takirrevocably fixed." ing charge of Ella Hare and furnishing her maintenance and support, under the provisions of her mother's will, has failed, and that they are entitled to pay for the reasonable value of the care, maintenance, and support so furnished to Ella Hare for the past 19 years. The court rendered judgment for $31,000, and declared same a lien against the property of Ella Hare and ordered it sold for satisfaction thereof. From this judgment, this appeal comes. Winchester & Martin, of Ft. Smith, for appellant. Read & McDonough and Falconer, Youmans & Woods, all of Ft. Smith, for appellee. KIRBY, J. (after stating the facts as above). It is not disputed that the estates of both John and Mary A. Hare have been wound up and finally settled and all the property belonging to both disposed of, except the said property sold to the said Tillman Shaw; nor can it be disputed that the Sisters of Mercy have realized out of said estate all they would have received, had the will of John Hare operated to convey his entire estate to Mary A. Hare, as they thought it did, except the $5,500 they had to refund to Tillman Shaw, by reason of their not being the owners of the one-half undivided interest they attempted to convey to him; and they say they would have been satisfied with this disposition of the property of these estates and willing to care for the imbecile, Ella Hare, throughout her life in consideration thereof, and took charge of her and the estate with the expectation of doing so. [2] It was a gift in trust, with the right upon the part of the trustee to use all of said property, not required for the maintenance and support of said child, at their own It discretion, and without accounting therefor; and they accepted said trust. is undisputed that they have received from the two estates of the parents of this imbecile ward the sum of $16,500, which they have not returned. It would be manifestly unfair and unjust now to permit them to repudiate the obligation and the trust, and recover upon a quantum meruit for services already rendered and maintenance furnished a sum more than sufficient to consume the entire estate belonging to said imbecile, It was the intention of Mary A. Hare, as with no corresponding obligation on their plainly expressed in her will, to leave one- part to maintain, support, and care for her half of her estate, after the payment of her in the future, as the decree rendered below debts and the small bequests and legacies does, thus defeating the obvious purpose of to appellees, the Sisters of Mercy, for the the testator and leaving entirely without support and maintenance of her daughter, protection for the remainder of her life the Ella Hare, during her life, and thereafter imbecile ward, Ella Hare, while permitting to said Sisters of Mercy, to be used in edu- the consumption of all the remaining escating poor Catholic children. It was, tates of both her father and mother by the doubtless, also, John Hare's intention to trustee, who expected, on accepting the trust leave all of his estate to his wife, Mary A. and taking charge of her, to care for, mainHare, in accordance with his will, which tain, and support the said Ella Hare was invalid under the law, as against Ella throughout her whole life for the one-half Hare, his only child; her name having been of said estates, which they understood was omitted therefrom. It may be, and doubt-devised to them for that purpose. It is true, less is, true that the Sisters of Mercy believed that the will of Mary A. Hare conveyed, not only her own estate, but also all the estate that had formerly belonged to her husband, and was attempted by him to be devised to her, and, so believing, they took as urged, that the imbecile has been as well cared for by them as she could have been by any one, and that it was the intention of her father to leave all of his estate to her mother, and of her mother to leave all of her estate to the church and appellee, ex |