English rule in Missouri

1928There is no doubt but such is the rule which obtains with us and elsewhere. [Woodward v. Woodward, 148 Mo. 241 ; Stewart v. Caldwell, 54 Mo. 536 ; 1 Story’s Eq.

1928There is no doubt but such is the rule which obtains with us and elsewhere. [Woodward v. Woodward, 148 Mo. 241 ; Stewart v. Caldwell, 54 Mo. 536 ; 1 Story’s Eq.

1928There is no doubt but such is the rule which obtains with us and elsewhere. [Woodward v. Woodward, 148 Mo. 241 ; Stewart v. Caldwell, 54 Mo. 536 ; 1 Story’s Eq.

1928There is no doubt but such is the rule which obtains with us and elsewhere. [Woodward v. Woodward, 148 Mo. 241 ; Stewart v. Caldwell, 54 Mo. 536 ; 1 Story’s Eq.

1926It is said: “Alienability is not an essential attribute of an equitable life estate in property; and there is nothing in the policy of the law prohibiting a donor from providing that his bounty shall be enjoyed only by those to whom he intends to extend it, and that property devoted by him to a trust'otherwise valid shall not be diverted from its appointed destination.” [Seymour v. McAvoy, 121 Cal. 438, 443 ; Matthews v. Van Cleve, 282 Mo. 19 ; Lampert v. Haydel, 96 Mo. 439 ; Heaton v. Trust Co., 153 Mo. App. 312 .] Even under the English rule restrictions against the alienation of an equitabl

1926It is said: “Alienability is not an essential attribute of an equitable life estate in property; and there is nothing in the policy of the law prohibiting a donor from providing that his bounty shall be enjoyed only by those to whom he intends to extend it, and that property devoted by him to a trust'otherwise valid shall not be diverted from its appointed destination.” [Seymour v. McAvoy, 121 Cal. 438, 443 ; Matthews v. Van Cleve, 282 Mo. 19 ; Lampert v. Haydel, 96 Mo. 439 ; Heaton v. Trust Co., 153 Mo. App. 312 .] Even under the English rule restrictions against the alienation of an equitabl

1933While this was the English rule (Holliday v. Holgate, L.R. 3 Exch. 299) and was once apparently followed in this State (McClintock v. Central Bank, 120 Mo. 127 , 24 S.W. 1052 ), it has been expressly repudiated by this court in Kegan v. Park Bank, 320 Mo. 623 , 8 S.W.2d 858 .

1933While this was the English rule (Holliday v. Holgate, L.R. 3 Exch. 299) and was once apparently followed in this State (McClintock v. Central Bank, 120 Mo. 127 , 24 S.W. 1052 ), it has been expressly repudiated by this court in Kegan v. Park Bank, 320 Mo. 623 , 8 S.W.2d 858 .

1928"Tifft v. Porter, supra, seems to be the leading authority relied upon, and follows the English rule upon the question involved. . . .

1928"Tifft v. Porter, supra, seems to be the leading authority relied upon, and follows the English rule upon the question involved. . . .

1928In support of this proposition, we call attention to the following authorities: Jewell v. Appolonio, 75 N.H. 317 ; Drake v. True, 72 N.H. 322 ; Ferreck's Estate, 241 Pa. 340 ; Lewis v. Sedgwick, 223 Ill. 213 ; Gardner v. Viall, 36 R.I. l.c. 440; In re Lyle, 85 N.Y.S. 290 ; Gordon v. James, 86 Miss. l.c. 746-748; In re Zeile, 74 Cal. l.c. 130; New Albany Trust Co. v. Powell, 29 Ind. App. 494 ; White v. Winchester, 6 Pick.

1916In support of this proposition, we call attention to the following authorities: Jewell v. Appolonio, 75 N. H. 317; Drake v. True, 72 N. H. 322; Ferreck’s Estate, 241 Pa. St. 340; Lewis v. Sedgwick, 223 Ill. 213 ; Gardner v. Viall, 36 R.

1906The Supreme Courts of Georgia and South Carolina understand the English rule as stated by Greenleaf, supra. For it is there held that the witness may be cross-examined “though the party calling him does not choose to ask him a question.” [Lunday v. Thomas, 26 Georgia 537; Aiken v. Cato, 23 Georgia 154, 159; Mason v. Railway, 58 S. Car. 70, 75.] But the Supreme Court of this State, copying and approving the English rule as somewhat differently stated by Phillips on Evidence, says, that if the witness is sworn “and gives some evidence,” however formal, he may be cross-examined. [Page v. Kankey,

1906The Supreme Courts of Georgia and South Carolina understand the English rule as stated by Greenleaf, supra. For it is there held that the witness may be cross-examined “though the party calling him does not choose to ask him a question.” [Lunday v. Thomas, 26 Georgia 537; Aiken v. Cato, 23 Georgia 154, 159; Mason v. Railway, 58 S. Car. 70, 75.] But the Supreme Court of this State, copying and approving the English rule as somewhat differently stated by Phillips on Evidence, says, that if the witness is sworn “and gives some evidence,” however formal, he may be cross-examined. [Page v. Kankey,

1892In Thruston v. Hancock, supra, it was said: “ A man who himself builds a house adjoining his neighbor’s land ought to foresee the probable use by his neighbor of the adjoining land, and by convention, or by different arrangement of his house, secure himself against future interruption and inconvenience. ” And in Farrand v. Marshall, 19 Barb., supra, it was stated: “When a party, complaining of an injury, has himself erected buildings upon the margin of his own land, he has been regarded as himself at fault, and, therefore, not entitled to recover, upon the familiar doctrine that he who complai

1892In Thruston v. Hancock, supra, it was said: “ A man who himself builds a house adjoining his neighbor’s land ought to foresee the probable use by his neighbor of the adjoining land, and by convention, or by different arrangement of his house, secure himself against future interruption and inconvenience. ” And in Farrand v. Marshall, 19 Barb., supra, it was stated: “When a party, complaining of an injury, has himself erected buildings upon the margin of his own land, he has been regarded as himself at fault, and, therefore, not entitled to recover, upon the familiar doctrine that he who complai

1979Prater v. Stubblefield, 483 S.W.2d 669 (Mo.App.1972), merely notes that the English rule that actual possession is necessary to maintain an action in trespass has relaxed in this country in favor of the constructive possession basis for the action.

1979Prater v. Stubblefield, 483 S.W.2d 669 (Mo.App.1972), merely notes that the English rule that actual possession is necessary to maintain an action in trespass has relaxed in this country in favor of the constructive possession basis for the action.

1976Throughout the period of this adoption, culminating in this Court’s decision in Brame [Insurance Co. v. Brame, 95 U.S. 754 , 24 L.Ed. 580 (1878)], the courts failed to produce any satisfactory justification for applying the rule in this country.

1976Throughout the period of this adoption, culminating in this Court’s decision in Brame [Insurance Co. v. Brame, 95 U.S. 754 , 24 L.Ed. 580 (1878)], the courts failed to produce any satisfactory justification for applying the rule in this country.

1976Co., 23 Fed.Cas. pp. 368, 371 (No. 13,599) (C.C.Neb.1874); Shields v. Yonge, 15 Ga. 349 (1854); cf. Cross v. Guthery, 2 Root 90 , 92 (Conn.1794), American courts generally adopted the English rule as the common law of this country as well.

1976Co., 23 Fed.Cas. pp. 368, 371 (No. 13,599) (C.C.Neb.1874); Shields v. Yonge, 15 Ga. 349 (1854); cf. Cross v. Guthery, 2 Root 90 , 92 (Conn.1794), American courts generally adopted the English rule as the common law of this country as well.

1975Hence, we must conclude that there was no established precedent by decision in Missouri on which we could say that counsel relied in specifying that the residuary trust should pass to descendants of Mrs. Simpkins [grandniece] at her death.” 468 S.W.2d at 13 .

1975Hence, we must conclude that there was no established precedent by decision in Missouri on which we could say that counsel relied in specifying that the residuary trust should pass to descendants of Mrs. Simpkins [grandniece] at her death.” 468 S.W.2d at 13 .

1971The court then went on to conclude that “only those grandchildren atid great-grandchildren of Martha Amanda Robertson whose parents were not in esse at the time that Martha Amanda Robertson died are to be construed as issue in contemplation of law; and those alone who would have taken under the statute are embraced within the term ‘issue.’ ” In Pearce v. Rickard, 18 R.I. 142 , 26 A. 38 , the court had adopted the English rule and construed a gift to the lawful issue of the life tenant to be a gift per capita.

1971The court then went on to conclude that “only those grandchildren atid great-grandchildren of Martha Amanda Robertson whose parents were not in esse at the time that Martha Amanda Robertson died are to be construed as issue in contemplation of law; and those alone who would have taken under the statute are embraced within the term ‘issue.’ ” In Pearce v. Rickard, 18 R.I. 142 , 26 A. 38 , the court had adopted the English rule and construed a gift to the lawful issue of the life tenant to be a gift per capita.

1971In Rembert v. Vetoe, 89 S.C. 198 , 71 S.E. 959 , the will, after creating certain life estates, left the property at the death of testator’s daughter “to such of her issue as she may leave living at the time of her death, to be equally divided among such issue, but if my said daughter should die leaving no issue alive at the time of her death, it is my will that said two-thirds be equally divided among my next of kin at that time living according to the statute of distribution of intestate’s estates.” The court held that the word “issue” was generally equivalent to “heirs of the body” and that

1971In Rembert v. Vetoe, 89 S.C. 198 , 71 S.E. 959 , the will, after creating certain life estates, left the property at the death of testator’s daughter “to such of her issue as she may leave living at the time of her death, to be equally divided among such issue, but if my said daughter should die leaving no issue alive at the time of her death, it is my will that said two-thirds be equally divided among my next of kin at that time living according to the statute of distribution of intestate’s estates.” The court held that the word “issue” was generally equivalent to “heirs of the body” and that

1971In Rembert v. Vetoe, 89 S.C. 198 , 71 S.E. 959 , the will, after creating certain life estates, left the property at the death of testator’s daughter “to such of her issue as she may leave living at the time of her death, to be equally divided among such issue, but if my said daughter should die leaving no issue alive at the time of her death, it is my will that said two-thirds be equally divided among my next of kin at that time living according to the statute of distribution of intestate’s estates.” The court held that the word “issue” was generally equivalent to “heirs of the body” and that

1971In Rembert v. Vetoe, 89 S.C. 198 , 71 S.E. 959 , the will, after creating certain life estates, left the property at the death of testator’s daughter “to such of her issue as she may leave living at the time of her death, to be equally divided among such issue, but if my said daughter should die leaving no issue alive at the time of her death, it is my will that said two-thirds be equally divided among my next of kin at that time living according to the statute of distribution of intestate’s estates.” The court held that the word “issue” was generally equivalent to “heirs of the body” and that

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1962Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364 , 80 N.W.2d 434 ; In re Klemann, 132 Ohio St. *141 187, 5 N.E.2d 492 , 108 A.L.R. 505 ; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709 , 339 P.2d 567 , 74 A.L.R.2d 526 ; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1961As stated In re Largue’s Estate, supra [ 267 Mo. 104 , 183 S.W. 610 ], “Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule * * and construe legacies as specific, when bank stock or other stock is disposed of, * *• * where the will upon its face fairly discloses the intention of testator to make a specific bequest.” In the bequest of corporate stocks, “any word or circumstance sufficiently designating and separating them may be sufficient to show that a bequest of them was intended as specific.” In re Bernheimer’s Estate, supra [ 352 Mo. 91 , 1

1945There have, however, been dissents against following this rule, the most famous of which is the dissenting opinion of Mr. Justice Holmes, with whom concur Mr. Justice Lurton and Mr. Justice Hughes, in Donnelly v. United States, 228 U. S. 243 , 57 L.

1945There have, however, been dissents against following this rule, the most famous of which is the dissenting opinion of Mr. Justice Holmes, with whom concur Mr. Justice Lurton and Mr. Justice Hughes, in Donnelly v. United States, 228 U. S. 243 , 57 L.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1940The protection of such trusts have been, from the earliest time, a principal function of courts of equity. [Dickey v. Volker, 321 Mo. 235 , 11 S. W. (2d) 278 ; Crow ex rel. v. Clay County, 196 Mo. 234 , 95 S. W. 369 ; Estate of Peabody, 154 Cal. 173 , 97 Pac. 184 ; 2 Bogert on “Trusts & Trustees,” p. 1130, sec. 369; 10 American Jurisprudence, p. 593, sec. 12.] The old English doctrine that there was a prerogative power of the King over charitable trusts, is not recognized in this country and particularly in this State.

1933While this was the English rule (Holliday v. Holgate, L.R. 3 Exch. 299) and was once apparently followed in this State (McClintock v. Central Bank, 120 Mo. 127 , 24 S.W. 1052 ), it has been expressly repudiated by this court in Kegan v. Park Bank, 320 Mo. 623 , 8 S.W.2d 858 .

1933While this was the English rule (Holliday v. Holgate, L.R. 3 Exch. 299) and was once apparently followed in this State (McClintock v. Central Bank, 120 Mo. 127 , 24 S.W. 1052 ), it has been expressly repudiated by this court in Kegan v. Park Bank, 320 Mo. 623 , 8 S.W.2d 858 .