pared by the use of the usual form for a warRICKETTS et al. v. PEOPLE'S BANK OF ranty deed. After the description of the

There can be a valid power of sale of the fee coupled with a grant of a life estate. [Ed. Note. For other cases, see Powers, Cent. Dig. §§ 21, 22.]

2. WILLS 689 - CONSTRUCTION CREATED.

- ESTATES

A will devising the residue to the widow, "to have the absolute control of the same, to sell or use for her own use and benefit, absolutely during her lifetime," and providing for a payment on the widow's death of certain sums to others. gives the widow the right either to keep the land and use it, or to sell the fee and use the proceeds, which on her death, if any balance remained, would go to the remaindermen.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1650, 1651.] 3. POWERS

34(1)-EXECUTION-DEED-REF

ERENCE TO POWER.

land, there was added this clause:

"And being the same lands left to the said Sophia Means by will of J. M. Means, deceased, containing in the aggregate 2004 acres."

As is usual in a warranty deed, we find this clause:

"The said Sophia Means hereby covenanting that she is lawfully seised of an indefeasible estate in fee in the premises herein conveyed."

This deed was made in Arkansas, where it seems that Means and his wife had spent much time before his death. On the same date, and in the same state, two of the four Means children likewise executed a quitclaim deed to Mr. Pipes, being joined therein by their respective husbands. The plaintiffs (appellants) are the other two children, and the defendants hold title under the Pipes deed.

The land was the homestead of J. M. Means and his wife, but this we do not take to be material. The whole question is the force and effect to be given to the deed made by

Under a will empowering the devisee to sell the fee, her deed, making reference to the will, but not to the power, conveys the fee. [Ed. Note.-For other cases, see Powers, the widow. If under the will she had the Cent. Dig. § 121.]

4. POWERS 36(1)—EXECUTION-RIGHTS OF REMAINDERMEN.

Where a will empowered the devisee to sell the fee, but also created remaindermen, if any balance remained on her death, the consideration for her deed of the fee could not be impugned by the mere fact that two of the remaindermen quitclaimed at the same time. [Ed. Note.-For other cases, Cent. Dig. § 137.] Appeal from Circuit Court, Howard County; Alex. H. Waller, Judge.

see Powers,

Suit by Frances E. Ricketts and another against the People's Bank of Rocheport and others. Judgment for defendants, and plain tiffs appeal. Affirmed.

A. W. Walker, of Fayette, for appellants. Sam C. Major, of Fayette, and Roy D. Williams, of Boonville, for respondents.

GRAVES, J. This is an action to quiet title to some 200 acres of land in Howard county. James M. Means is the common source of title. Means died in 1896, leaving The pertinent portion of that will

a will.

read:

"3d. I give, devise and bequeath all the residue of my estate and property both personal and real unto my beloved wife, Sophia Means, to have the absolute control of the same, to sell or use for her own use and benefit, absolutely during her lifetime, and

"4th. At her demise there is to be Eight Hundred Dollars taken from the estate and divided equally between Sophia Dunnaway and Rhoda E. Woodruff and the remainder of all the prop erty both real and personal to be equally divided between all the heirs, namely, Sophia Dunnaway, Rhoda E. Woodruff, Matilda A. Crews and Frances E. Ricketts."

Some nine months or more after his death, Sophia Means, his widow, executed and delivered to D. F. Pipes a deed to the land in question. This deed seems to have been pre

power to sell the fee, and if by the deed and such power she did sell the fee, then the judgment nisi is right, and should be affirmed. The questions therefore are: (1) A construction of the will; and (2) a construction of her deed. We suggest the two questions, because there are cases where a will grants the power of sale, and yet the deed might not prove to be a proper exercise of the power. The questions are largely questions of law, under practically undisputed facts. This outlines the case.

[1] I. It is not uncommon to have wills which vest a life estate, but which have an added power of sale in the life tenant. In other words, there can be a valid power of sale of the fee coupled with a grant of a life estate. This will, like all others, must be construed in the light of all the language used therein. The will purports to cover all the residue of testator's property, both personal and real. As to such residue (which includes the real estate involved here) the will says: (1) That Sophia Means (the widow) shall "have absolute control of the same"; and (2) "to sell or use for her own use and benefit." The time fixed for the exercise of these rights as to the property is "during her life." The peculiarity rests in the use of the disjunctive powers granted. It is first said that in the exercise of the absolute control of the property she shall have the right "to sell." Then we find the added power "or use for her own use and benefit." The latter clause, if exercised by her, creates a life estate in this particular land; but this does not necessarily preclude the exercise of the other power granted—i. e., "to sell" and use the proceeds for life, or as her necessities might require. The use of the words "to sell" in this instrument must

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

be erased therefrom, before it can be said | cases, if the power is validly exercised, the that no power of sale was given to Mrs. Means.

[2] We do not understand that counsel for plaintiff claims that the words have no significance, but his contention is that they give her the right to sell her life estate only. We do not concur in that view. We think this will gives to the widow two rights. She might have chosen thereunder to keep the land and use it for her own use and benefit, or, on the other hand, to sell the whole title, and use the proceeds of such sale for her own use and benefit, and then, if after such use there was, at her death, a remainder, the heirs would take as stated in the will. She elected promptly to exercise the power of sale, rather than to hold the property in kind. Had she held the property in kind, these plaintiffs would have been remaindermen as to this real estate at her death; but if she had exercised her right to sell, as she did, the exercise of such power precluded their further interest in the specific property. She had the right to sell her life estate, without any power of sale being given in the will, and we cannot well say that the intent of the testator, by the use of the words "to sell," meant only the exercise of a right given by law rather than one given by the will.

heirs have no interest in the property sold, as remaindermen. We leave the curious to read the review of our case law in the case, supra, by Brace, C. J.

[3] II. If there was a power of sale vested in the widow, as we have held, then the only question left is whether or not she has exercised that power by the deed she made. The deed, as said, was a warranty deed in form, and contained therein the reference to the will, as we have heretofore set out. It purported to convey an absolute title in fee. In such case reference in the deed to the power vested by the will is unnecessary. In Grace v. Perry, supra, 197 Mo. loc. cit. 567, 95 S. W. 880, 7 Ann. Cas. 948, Brace, C. J., said:

65 Mo. 439; Owen v. Ellis, 64 Mo. 77. The rule in some of the earlier cases upon which this contention might have been maintained (Pease v. Pilot Knob Iron Co., 49 Mo. 124; Turner v. Timberlake, 53 Mo. 371; Owen v. Switzer, 51 Mo. 322) was thoroughly discredited by the learned and able opinion of Napton, J., in Owen v. Ellis, supra, and Owen v. Switzer, supra, the last case in which the rule was ever maintained, was expressly overruled in Campbell v. Johnson, supra, and is no longer the law in this state."

"It is next, and finally, contended that, although James S. Dougherty might have executed the power given him in the will of his father as to the land in question by the deed of trust, he did not in fact do so, because no reference to the power is made in said deed, and the effect thereof was to convey only his life estate. The power of said Dougherty under the will was to dispose of 'the absolute estate in fee simple.' By the deed, which was for a valuable consideration, he conveyed the absolute estate in fee simple,' as he must have intended what he said, and as he could not have conveyed the absolute title in fee simple, except in execution of the power, this sufficiently indicates that the deed was made in execution of the power. Underwood v. Cave, 176 Mo. 18 [75 S. W. 451]; The reading of the fourth clause of the Boyer v. Allen, 76 Mo. 498; Kinney v. Mathwill would seem to contemplate the construc-ews, 69 Mo. loc. cit. 523; Campbell v. Johnson, tion we have given. By this fourth clause, the distribution to the heirs was to be upon the demise of the widow. It mentions a money legacy to Mrs. Dunnaway and Mrs. Woodruff. Nothing in this record shows that Means (who was an invalid and lived at Eureka Springs, Ark,, for nearly 20 years) and his wife got the rents from this land for their support. Other portions of the will would not indicate much personal estate. The fact that he provides for this money legacy of $800 would tend to show that he expected the widow to exercise this power of sale. But, be this as it may, the power is there, and cannot be eliminated without doing violence to the terms of the will. Nor will it do to say that there appears an intent to limit the power of sale to the disposition of the life estate alone. The added power of sale in a will granting a life estate is fully discussed by Brace, C. J., in Grace v. Perry et al., 197 Mo. 550, 95 S. W. 875, 7 Ann. Cas. 948. The case law of the state is there collated and reviewed. The third paragraph of the syllabus concisely states the rule, and reads:

"A power of disposition of the fee added to a life estate is not repugnant to the life estate or to the remainder over. If not exercised, it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of."

As said in the beginning, there are many wills wherein the added power of sale has been given to the life tenant, and in such

We quote, because this announcement as fully and succinctly states our rule as we could state it. By this we do not mean to say that this deed does not sufficiently refer to the power, but do say that the form of the deed was such as not to require further reference to the power.

[4] The deed recited a consideration of $3,600 which was a substantial consideration, and it cannot be impeached or impugned by the mere fact that two of the heirs, at the same time, made a quitclaim deed to the same lands. In other words, if the power to sell existed, as we have held, and if, by the form of the deed, the law will conclude the exercise of that power, then the acts of prospective remaindermen cannot change the legal situation. Especially should this be true, where, as here, the rights of innocent purchasers for value have intervened.

A review of the record herein convinces us that the learned chancellor, nisi, reached the right judgment, and such judgment is affirmed. All concur; BOND, P. J., in paragraph 2 and in the result.

A telegram sent from a point in Kansas to a point in Missouri was an interstate message, and telegram which was sent subject to the stipuWhere one received an unrepeated interstate its transmission was an act in interstate com-lation on the back of the message that the com

The liability of common carriers of property for any violation of their public duty in interstate shipments is governed solely by the fed-11. JUDGMENT 253(1)—AMOUNT DEMANDED eral statutes relating thereto and by the rules of -LIMITATION OF RECOVERY. decision observed by the federal courts in construing such statutes, and in applying the gen-mitting an unrepeated interstate telegram, plaineral principles of law to the questions of liabil

In the sendee's action for mistake in trans

tiff will not be denied recovery of the amount paid for sending the message, the measure of the eral law, merely because he did not ask for the company's liability under its stipulation and fedspecific amount; he having asked for the en33(1)-forcement of the company's liability to him, and having secured more than he was entitled to.

TRIMBLE, J. This is a suit to recover damages sustained by reason of a mistake

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

The message

valued, unless a greater value is stated in writing hereon at the time the message is offered to sum paid or agreed to be paid based on such the company for transmission, and an additional value to one-tenth of one per cent. thereof."

The message was an unrepeated message, and the charge was the usual and regular price for sending a telegram of that length and distance, to wit, 40 cents, which was paid by the sender, Townsdin.

[1] The suit is not on the contract between

the sender and the defendant, although the latter's duty to the sendee arises because that contract was created and performance thereof was undertaken by defendant. The suit is based upon the violation of defendant's public duty to correctly transmit and deliver the message. This public duty, aris

negligently made by defendant in the transmission of a telegram to plaintiff. Poor was a grain broker and commission merchant doing business in Kansas City, Mo., under the name of A. J. Poor Grain Company. On August 4, 1913, a customer of plaintiff by the name of Townsdin, residing in Randall, Kan., delivered to defendant's agent at that place a message to be sent to plaintiff which read as follows: "Buy fifteen thousand Dec. wheat around eighty-nine." which was delivered to plaintiff read: "Buy fifty thousand Dec. wheat around eightynine." As written and directed to be sent by Townsdin, the message was an order to buy 15,000 bushels of wheat, but as delivered to Poor it was an order to buy 50,000 bushels. The change arose through the negligence of the defendant. As directed in the telegraming upon the creation of the contract of he received, Poor bought 50,000 bushels, and by telegram notified Townsdin of that fact. The latter immediately telephoned Poor that he had ordered and wanted only 15,000 bushels. Poor went to the defendant's office and told the agent of the mistake and asked him what disposition he should make of the extra 35,000 bushels. The agent agreed to take the matter up with the company's general agent, but, being unable to get any directions from him, informed plaintiff of that fact and told Poor to close out the wheat as best he could and put in his claim for the loss. Poor sold the extra wheat and sustained a loss of $712.50. This suit was then brought to recover that amount as the damages arising from defendant's wrongful failure to correctly transmit and deliver said message. Plaintiff obtained a verdict and judgment for the full amount sued for, and defendant has appealed.

The telegram was written by Townsdin on one of defendant's ordinary telegram blanks, which, on its face, directed the telegraph company to: "Send the following message subject to the terms on the back hereof. which are hereby agreed to." On the back of the message was printed the following:

transmission, the defendant owed the sendee, even though the latter was not an immediate party to the contract. Hence plaintiff, as sendee, has a right of action based upon the violation of that public duty. Western Union Tel. Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386; State Bank of Commerce v. West

ern Union Tel. Co., 19 N. M. 211, 142 Pac. Union Tel. Co., 227 Pa. 522, 76 Atl. 736, 43 L. 156, L. R. A. 1915A, 120; Bailey v. Western R. A. (N. S.) 502, 19 Ann. Cas. $95; Western Union Tel. Co. v. Holder, 117 Ark. 210, 174 S. W. 552; Eureka Cotton Mills Co. v. Western Union Tel. Co., 88 S. C. 498, 70 S. E. 1040, Ann. Cas. 1912C, 1273; Western Union Tel. South. 962; Western Union Tel. Co. v. ComCo. v. Jackson Lumber Co., 187 Ala. 629, 65 mercial Milling Co., 218 U. S. 406, 420, 31 Sup. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.)

220, 21 Ann. Cas. 815.

[2, 3] The telegram, being from a point in Kansas to a point in Missouri, was an interact of interstate commerce. state message, and its transmission was an Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. Western Union 1067; Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187. Section 7 of the Act of Congress of June 18, 1910 (36 Stats. L. 544, c. 309; Fed. Stats. Ann. "All messages taken by this company are sub-1912, vol. 1, p. 111 [U. S. Comp. St. 1916, § ject to the following terms which are hereby agreed to. To guard against mistakes or delays, the sender of a message should order it repeated, that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated message rate is charged, in addition, Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed between the sender of the message and this company as follows: (1) The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery of any repeated message, beyond fifty times the sum received for sending the same, unless specially valued. # (2) In any event the company shall not be liable for damages for any mistakes or delay in the transmission or delivery, or for the nondelivery of this message, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this message is hereby

8563]), amending section 1 of the original Interstate Commerce Act (24 Stats. L. 379, c. 104; 3 Fed. Stats. Ann. 809), as amended by the Act of June 29, 1906 (34 Stats. L. 584, c. 3591; Fed. Stats. Ann. 1909 Supp. p. 255), known as the "Hepburn Act" with the "Carmack Amendment" thereto, declares that telegraph companies engaged in sending messages from one state to another state "shal! be considered and held to be common carriers within the meaning and purpose of this act," i. e., within the meaning and purpose of the entire Interstate Commerce Law as it then existed. Being therefore a common carrier within the meaning of the Interstate Commerce Statutes, and engaged in interstate commerce with respect to the particular message in controversy, the defendant telegraph company is subject to and governed by the

federal law as expounded and applied by the feaeral courts to the exclusion of all state laws and decisions.

rate, or practice, or regulation is reasonable, and to forbid those found to be unjust, and to require the companies to adopt the one prescribed. Section 20 also covers the matter of making reports and keeping accounts. The Commerce Commission in its 24th An. Rep. p. 32, says:

"The administration of the twentieth section of the Act to regulate commerce, so far as telegraph companies are concerned, gives rise to no very serious difficulty."

[4, 5] Undoubtedly, it is well established that the liability of common carriers of property, for any violation of their public duty in interstate shipments or carriage, is governed wholly by the federal statutes relating thereto and by the rules of decision observed by the federal courts in construing such statutes and in applying the general principles of law to the questions of liability. This has [6, 7] It is therefore apparent that the inbeen decided so frequently of late years that it is hardly necessary to cite even a few of terstate telegraph companies within the terms terstate commerce statutes clearly bring inthe many cases announcing that doctrine. and subject to all the provisions of the InAdams Express Co. v. Croninger, 226 U. S. terstate Commerce Law so far as applicable 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. thereto; and that such companies are allowA. (N. S.) 257; Missouri, etc., R. Co. v. Harri-ed the privilege of making their rates, clasman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Boston & Maine R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Hamilton v. Chicago, etc., R. Co., 177 Mo. App. 145, 164 S. W. 248; Kent v. Chicago, etc., R. Co., 189 Mo. App. 424, 176 S. W. 1105. But plaintiff contends that Congress has not legislated upon the subject of the liability of telegraph companies nor upon the measure of damages governing in a suit in tort, and that therefore such matters are not controlled by federal legislation and rules of decision. It is true, the Carmack Amendment to the Hepburn Act dealt with the liability of common carriers transporting property. And it is also true that section 6 of the Commerce Act (U. S. Comp. St. 1916, § 8569), requiring common carriers subject to the provisions of said act to file with the Interstate Commerce Commission schedules of its rates, fares, and charges for the transportation of passengers and property, is held not to apply to telegraph companies. 25 An. Rep. I. C. C. 1911, p. 5; Conf. Rul. No. 305. But sections 1, 3, 15, and 20 of the Interstate Commerce Law do apply to such companies. Section 1, as stated before, makes the act applicable to telegraph companies engaged in transmitting messages from one state to another, and requires that all charges for services rendered shall be just and reasonable, and all unjust and unreasonable charges are declared to be unlawful; and it further provides that messages "may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages." Section 3 provides for uniformity of charges for the different classes of service by making it unlawful to give preferences or advantages in any respect whatsoever. Section 15 provides that upon complaint being made to the Interstate Commerce Commission that any rate or classification, regulation, or practice whatsoever of common carriers subject to the act, including telegraph companies, the commission shall have power to declare what

sifications, and charges subject to the power of the Interstate Commerce Commission to revise them upon complaint, and subject to reasonable and uniform for the same service the law's requirement that they shall be and classification (White & Co. v. Western Union Tel. Co., 33 Interst. Com. Com'n, R. 500, which was duly offered in evidence and is shown in the abstract). So that the abovenamed federal laws constitute an assertion of the power of Congress over the subject of interstate telegrams and the duties of companies engaged in transmitting them. And this assertion of power over them expressly provides for uniformity of rate, of classification, and of service; and necessarily of responsibility therefor. In so doing, state action and rules are excluded. These principles are clearly announced in and deducible from the cases of Atchison, etc., R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050; Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836. See, also, Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Cleveland, etc., R. Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453; Southern Ry. Co. v. Reid, 222 U. S. 424, 36 Sup. Ct. 140, 56 L. Ed. 257. From all of which it follows that the rule of de-. cision heretofore in force in this state respecting the force and effect of provisions in the contract by which a message is transmitted are no longer controlling with respect to interstate messages. They are to be given the effect accorded them by the federal laws and decisions. Gardner v. Western Union Tel. Co., 231 Fed. 405, 145 C. C. A. 399; Western Union Tel. Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457; Haskell Implement, etc., Co. v. Postal Tel., etc., Co., 114 Me. 277, 96 Atl. 219; Western Union Tel. Co. v. Bank of Spencer (Okl.) 156 Pac. 1175; Western Union v. Bilisoly, 116 Va. 562, 82 S. E. 91; Western Union Tel. Co. v. First National Bank of Berryville, 116 Va. 1009, 83 S. E. 424; Durre v. Western Union Tel. Co. (Wis.) 161 N. W. 755; Meadows v. Postal,