ment for defendants, plaintiffs appeal. Affirmed.

John D. Smoot and R. D. Cramer, for appellants. McKee & Jayne and Mudd & Wagner, for respondents.

GANTT, P. J. This is an action by Mrs. Alice Woods, the adopted daughter of Francis Drake, late of Scotland county, Mo., claiming to be a pretermitted child, and therefore entitled to a share of the estate of said Francis Drake. Francis Drake died, testate, in Scotland county, January 4, 1893. He left a widow, Mrs. Mary R. Drake, for whom he provided in his will in lieu of dower. He left no child or children, save and except Mrs. Woods, the appellant, his adopted daughter, who claims as an heir of said Drake, because she was not named in his last will and testament. It is true she was not named in so many words, but it is insisted by the other devisees that she was not forgotten, because by his will the testator devised a large portion of his estate to her four children, giving each one by name a distinct portion. This presents the only question on this appeal.

Is there anything in the will to rebut the presumption that Mrs. Woods was forgotten, because she was not named or provided for in the will? Rev. St. 1889, § 8877.1 In Hockensmith v. Slusher, 26 Mo. 237, this section, which has remained unchanged since the revision of 1845, was construed by this court, and the construction then given it has never been departed from, but has always been approved when considered in subsequent cases. It has, in a sense, become a rule of property, and a departure from it now would, doubtless, imperil many titles. In that case, Judge Richardson, speaking for the court, said: "This provision of the statute has been several times before this court for judicial construction, and it may now be considered as settled that the object of it is to produce an intestacy only when the child or the descendant of such child is unknown cr forgotten, and thus unintentionally omitted; and the presumption that the omission is unintentional may be rebutted when the tenor of the will, or any part of it, indicates that the child or grandchild was not forgotten." Block v. Block, 3 Mo. 594; Guitar v. Gordon, 17 Mo. 408; Beck v. Metz, 25 Mo. 70; Wild v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17. "And whenever the mention of one person, by a natural association of ideas, suggests another, it may reasonably be inferred that the latter was in the mind of the testator, and was not forgotten or unintentionally omitted. Thus, it has been decided that by the mention of a daughter, though dead at

1 Rev. St. 1889, § 8877, provides that a testator shall be deemed to have died intestate as to children not named or provided for in the will.

the time of making the will, it will be inferred that her children were not forgotten. Guitar v. Gordon, supra. The mention of grandchildren will exclude the parent. Wild v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17." Accordingly, in that case it was held that a bequest to a son-in-law, without mentioning that he was his son-inlaw, rebutted the presumption that the daughter was forgotten. Much stronger is the inference and presumption that the father had not forgotten his daughter when he remembered each of her four children by their names, and gave each a specific share of his estate; and this presumption is greatly strengthened when it is remembered that these children were then all minors, and living with their mother, the appellant. Applying to this will the construction uniformly given to the statute in the previous decisions of this court, we must hold that the testator did not forget Mrs. Woods, and did not die intestate as to her. The judg ment of the circuit court is accordingly affirmed.

SHERWOOD and BURGESS, JJ., concur.

CITY OF ST. LOUIS v. ROBINSON. (Supreme Court of Missouri, Division No. 2. Oct. 7, 1896.) CITIES CONSTRUCTION OF ORDINANCE-GARBAGE AND OFFAL-Definition of.

The trimmed heads, feet, and bones of beef cattle, from which the flesh and skin have been removed, and which are fresh and clean, and emit no offensive odor, do not come within the definition of either "garbage" or "offal," as used in an ordinance regulating the keeping, storing, and handling of such matter, and imposing a penalty for hauling the same in the streets except in wagons specially licensed for the purpose.

Appeal from St. Louis court of criminal correction; James R. Claiborne, Judge.

John Robinson was convicted of a violation of an ordinance of the city of St. Louis, and appeals. Reversed.

C. P. & J. D. Johnson, for appellant. W. C. Marshall, for respondent.

BURGESS, J. This action is prosecuted against defendant to recover a fine or penalty for the violation of an ordinance of the city of St. Louis. In the court of criminal correction of said city, to which the case was appealed by defendant, he was tried, convicted, and his punishment fixed at a fine of $25, for which judgment was rendered, and he again appealed.

The complaint is as follows: "John Robinson to the City of St. Louis, Dr. To two hundred dollars, for the violation of an ordinance of said city, entitled: An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter composed of either

animal or vegetable matter, and to repeal section three hundred and ninety-four, article ten, chapter fourteen, and sections five hundred and seven and five hundred and fourteen, article sixteen, chapter fourteen, of the Revised Ordinances of eighteen hundred and eightyseven, and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage.' And it is further charged that the said John Robinson, on the 4th day of February, 1893, and on divers other days and times prior thereto, did haul, through the streets of the city of St. Louis, garbage and offal, in carts, wagons, barrels, and tubs that were not water tight, and were not adequately and tightly built, so that the contents thereof could not fall, spill, or leak therefrom, and were not covered with tight-fitting wooden and metallic covers, and such wagons, carts, barrels, and tubs were kept, stored, and placed in places in the city of St. Louis, where their presence became offensive to the citizens of said city, and caused much discomfort and annoyance to said citizens, contrary to the ordinance of the city of St. Louis in such cases made and provided. | And it is further charged that the said John Robinson, on the 4th day of February, 1893, and on divers other days and times prior thereto, did haul and remove garbage and offal from hotels, dwelling houses, boarding houses, restaurants, and tenement houses in the city of St. Louis without first having obtained a license from said city therefor, and did haul said garbage and offal for the purpose of being used as food for animals located within the limits of the city of St. Louis, and did haul said garbage and offal to rendering and converting establishments which are conducted in an offensive manner, injurious to the health of the citizens of St. Louis, and which are under condemnation by the board of health of the city of St. Louis, and which have not complied with all the provisions of the ordinances governing the establishment, erection, and maintenance of rendering factories, contrary to the ordinances of the city of St. Louis in such cases made and provided. And it is further charged: The said John Robinson, on the 4th day of February, 1893, and on divers other days and times prior thereto, did use a cart, wagon, or other vehicle for the purpose of hauling garbage, and offal from hotels, restaurants, boarding houses, and dwelling houses, without having displayed on one side of the said cart, wagon, or other vehicle a metallic plate, having cast thereon, in raised letters, the words, 'Licensed to remove garbage,' and the figures indicating the number of the plate, and the year for which the license is issued, contrary to the ordinance of the city of St. Louis in such cases made and provided. On information of L. Harrigan, Chief of Police of City of St. Louis."

The ordinance is as follows: "An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse mat

ter composed of either animal or vegetable matter, and to repeal section three hundred and ninety-four, article ten, chapter fourteen, and sections five hundred and seven and five hundred and fourteen, article sixteen, chapter fourteen, of the Revised Ordinances of eighteen hundred and eightyseven, and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage. "Be it ordained by the municipal assembly of the city of St. Louis, as follows:

"Section 1. The words 'garbage' and 'offal,' when used in this ordinance, shall be held to include every accumulation of both animal and vegetable matter, liquid or otherwise, that is received from kitchens, and also all putrid and unsound meat, beef, pork, fish, decayed or unsound vegetable or fruit, the tankage from rendering establishments, and shall also be held to include refuse from slaughter houses and pork houses.

"Sec. 2. No person, firm or corporation shall throw, cast or deposit any garbage or offal of any kind whatever into or on any gutter, street, alley, public place, vacant lot or water course within the limits of the city, or into the river Des Peres or the Mississippi river inside the boundaries of the city; any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than one hundred dollars; and each violation thereof shall constitute a separate offense, punishable as provided herein.

"Sec. 3. It shall be the duty of every owner, tenant, lessee and occupant of any and every dwelling, tenement house, lodging house, hotel, restaurant and boarding house to provide and at all times cause to be kept and provided, within such building or on the lot on which said building is erected, suitable and sufficient boxes, barrels or tubs for the receiving and holding, without leakage and without being filled to within four inches of the top, all the garbage, offal or liquid substance derived therefrom that accumulates on said premises within a period of thirty-six hours, and all such boxes, tubs or barrels shall be placed at all times in such places as to be readily accessible for removal and emptying, and where they shall not be a public nuisance; and no person not for that purpose authorized shall interfere with them or with the contents thereof. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than five nor more than fifty dollars; and each violation thereof shall constitute a separate offense, punishable as provided herein.

"Sec. 4. All garbage and offal shall be removed and hauled through the streets of the city in water-tight carts, wagons or barrels only; all said carts or wagons shall be strongly built, and the sides and front and rear ends shall be so high above the load or contents that no part of such contents or load shall fall, leak or spill therefrom, and said

carts or wagons shall be adequately and tightly covered, and all barrels or tubs shall have tight fitting wooden or metallic covers, and when not in use all such carts, wagons and all implements used in connection therewith shall be stored and kept in some place where no needless offense shall be given to any of the citizens of the city; and any person removing garbage or offal in any other manner, or violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than twentyfive dollars nor more than two hundred dollars; and each violation thereof shall constitute a separate offense, punishable as provided herein.

"Sec. 5. No person or persons, firm or corporation, shall haul or remove garbage or offal from hotel, dwelling houses, boarding houses, restaurants or tenement houses without having first obtained from the city collector a license to do so, and any person or persons, firm or corporation, engaged in the hauling of garbage or offal either under contract with the city or otherwise, shall pay an annual license of twenty dollars in advance for each and every cart or wagon by him or them used; said license shall be issued in the form and under the regulations as provided for by this ordinance. No license shall be issued by the collector for the removal of garbage or offal unless the parties applying for such license shall first file with the collector a certificate signed by the board of health or chief sanitary officer of the city stating that the party making such application has filed with the health department a statement as provided for in section six of this ordinance. No license shall be issued for a longer period than one year, and said license shall not be transferable, and it shall be unlawful for any person or persons, firm or corporation engaged in the hauling or removal of garbage or offal to permit same to be fed to animals within the limits of the city. No license shall be issued to haul or remove garbage or offal to any rendering or converting establishment which shall be conducted in an offensive manner, or which shall at the time of making application for said license be under condemnation as a nuisance by the board of health, or which shall not have complied with all the provisions of the ordinances governing the establishinent, erection and maintenance of rendering factories. Any person or persons, firm or corporation failing to comply with or violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars nor more than two hundred dollars, and each violation thereof shall constitute a separate offense, punishable as provided herein, and shall furthermore forfeit his or their license.

"Sec. 6. All persons, firms or corporations desiring to have their garbage or offal removed by persons other than the contractor, or any persons, firms or corporations desiring to haul or remove garbage or offal, shall file with the board of health or chief sanitary officer an applica

tion, which application shall state at what point the garbage or offal is located; to what point within or without the limits of the city it is proposed to remove it; the number of carts and wagons proposed to be used; the location where the carts, barrels, wagons or tubs are kept when not in use, and that said offal and garbage is not to be fed to animals within the limits of the city of St. Louis. On the filing of such application the chief sanitary officer shall furnish to such parties a certificate to be filed with the collector, the number of which certificate shall correspond with the number on the application.

"Sec. 7. All carts, wagons or other vehicles, that shall be used in hauling garbage and offal from hotels, restaurants, boarding houses and dwelling houses, shall have displayed on one side thereof metallic plates, having cast thereon in raised letters the words, 'Licensed to remove garbage,' and the figures indicating the number of the plate and the year for which the license is issued. which metallic plates shall be furnished by the city register to the collector; the record of such metallic plates shall be kept by the collector, and the number of the license shall correspond with the number on the metallic plate. Any person failing or neglecting to conform to the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten or more than one hundred dollars, and each violation thereof shall constitute a separate offense, punishable as provided herein.

"Sec. 8. It shall be the duty of the police to see that the provisions of this ordinance are complied with, and it shall also be the duty of the garbage inspector to see that no garbage is permitted to remain on the premises of the residents of the city, and to report to the board of health all violations of this ordinance that may come under his notice.

"Sec. 9. All licenses to remove garbage and offal shall be issued in blank to the collector by the register, under the seal of the city, and shall be in the form prescribed by law.

"Sec. 10. Section three hundred and ninetyfour of article ten, chapter fourteen, and sections five hundred and seven and five hundred and fourteen of article sixteen of the Revised Ordinances of eighteen hundred and eighty-seven, are hereby repealed.”

The evidence showed that, when defendant was arrested, he was hauling a lot of clean, trimmed, and skinned heads, ribs, and feet of beef cattle through the public streets of the city of St. Louis, in a wagon closely covered with a tarpaulin. The bones were fresh, but dry, and emitted no offensive odor. The wag

on and contents belonged to P. B. Mathiason & Co., who were then engaged in manufacturing glue, bone black, and fertilizers, in the city of St. Louis, out of materials of that kind, and who had purchased the load that defendant was prosecuted for hauling from a pork-pack`ng and sausage-manufacturing establishment, for

manufacturing purposes. The defendant, at the time of his arrest, was driving the team for Mathiason & Co. The latter had a regular vehicle license from the city of St. Louis, for which they had paid the license tax for the wagon; but neither they nor the defendant had a license for removing garbage such as that required by section 5 of said ordinance.

Defendant insists that there was an entire failure of proof, and that the judgment of the court below should be reversed on that ground. There is much force in this contention, unless the words "garbage and offal," as used in the ordinance, comprehend, within the meaning of one or both of them, trimmed and skinned beads, ribs, and feet of cattle, such as the evidence showed defendant was hauling at the time alleged in the complaint. In the Century Dictionary, "garbage" is defined as follows: “(1) Originally, the entrails of fowls, and afterwards of any animal; now, offal or refuse organic matter in general; especially the refuse animal and vegetable matter from a kitchen. (2) Any worthless, offensive matter."

"Offal"

is defined as follows: "That which falls off as a chip or chips in dressing wood or stone; that which is to fall off as of little value or use. (2) Waste meat; the parts of a butchered animal which are rejected as unfit for use. (3) Refuse of any kind; rubbish." It seems clear to us that the articles which defendant was hauling do not come within the definition of "garbage" or "offal" as thus defined. They were clean, trimmed bones, having no meat upon them, and did not emit any offensive odor. After the grease and glue were dissolved or extracted from the bones, they were dried, and ground into fertilizers. The hoofs were exported. If either the bones or hoofs come within the meaning of the ordinance, so do hides taken from beef cattle. These are all articles of commerce, so that it cannot be said that any of them were offal, "or refuse organic matter," or that they were "refuse animal or vegetable matter from a kitchen," or that they were "worthless, offensive matter," or "waste meat; the parts of a butchered animal which are rejected as unfit for use," or "refuse of any kind," or "rubbish."

While the offense with which defendant - is charged is not criminal, being for the violation of a city ordinance, it is penal in its character, and in derogation of common right. The ordinance must therefore be strictly construed, and, in order that the judgment of conviction may be upheld, the proof adduced must bring defendant clearly within its meaning. In a criminal prosecution it was said: "If the language is clear, it is conclusive. There can be no construction where there is nothing to construe. The words must not be narrowed to the exclusion of what the legislature intended to embrace; but that intention must be gathered from the words, and they must be such as to leave no room for a reasonable doubt upon the subject." U. S. v. Hartwell, 6 Wall. 395. The same rule of construction applies in case of a prosecution for the violation of a city ordinance v.37s.w.no 2-8

for whose violation a fine or imprisonment is imposed. The title of the ordinance is "An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter," etc.; and, while not controlling in the construction of the various sections of its provisions, it may be looked to in passing upon the question as to whether the hauling of bones and hoofs of beef cattle, which had been stripped of all flesh, and which emitted no offensive odor, comes within its meaning, and is a violation of the ordinance. The title seems to indicate a purpose on the part of the city to prevent the accumulation of slops, and refuse matter of like character, which accumulate in the city, emit noxious and unwholesome odors, injurious to the health of her citizens, and not to the control and hauling of bones and hoofs, which do not emit such odors. This position is sustained by the whole ordinance. No tight or closelycovered wagon was necessary in this instance, in order to prevent the escape of noxious odors, or the dripping of offensive matter, as in hauling garbage and refuse matter; and it seems to us to require a strained construction of it to bring the offense with which defendant was charged within its meaning,-something the law does not permit in such circumstances. He was simply the employé of Mathiason & Co., who owned the wagon and the team that he was driving. His employers were engaged in the manufacture of glue, bone black, and fertilizers, in said city, from the bones of animals. They had purchased the load, and were having it hauled to their factory for that purpose. They had paid a vehicle license tax on the wagon, which was in force at the time, and, under our view of the case, were not required to take out an occupation tax for the purpose of hauling the bones and hoofs. As the evidence failed to show that defendant had violated the ordinance as charged, the judgment is reversed, and the defendant discharged.

GANTT, P. J., and SHERWOOD, J., concur.

HALFERTY v. SCEARCE, 1 (Supreme Court of Missouri, Division No. 2. Oct. 7, 1896.) EVIDENCE-TO CONTRADICT RECITAL IN DEEDDOWER-CONTRACT FOR JOINTURE-ELECTION. 1. Parol evidence is not admissible to show that the consideration for a deed made by a husband to his wife, which recited that it was made in consideration of the relinquishment by the wife of her dower rights in lands owned by the husband, also included the relinquishment of her dower right in land which the husband had previously sold and conveyed.

2. Under Rev. St. 1889, § 4530, providing that a widow may at her election renounce any contract for jointure made during marriage, and claim dower, a widow who received a conveyance of land from her husband in consideration of her relinquishment of her right of dower in the lands he then owned is not required to renounce such agreement and conveyance to enable her to claim dower in land that he had previously sold and conveyed, and which was not within the terms of the contract.

1 For additional opinion, see 37 S. W. 255.

Appeal from circuit court, Clinton county; William Henry, Special Judge.

Action by Eliza Halferty against Simeon A. Scearce. Judgment for plaintiff, and defendant appeals. Affirmed.

M. B. Riley, for appellant. H. F. Herndon, for respondent.

BURGESS, J.

Action by plaintiff, who is the widow of Solomon Halferty, deceased, for the admeasurement of dower in a tract of land containing 21.69 acres, in Clinton county, Mo., in which her husband was seised of an estate of inheritance during the existence of their marriage. The defense set up in the answer was that on the 29th day of August, 1885, during the existence of the marriage relation between plaintiff and said Solomon Halferty, they entered into an agreement whereby, in consideration of the relinquishment by her of all her dower rights in and to the lands of said Solomon Halferty, he, by deed of general warranty, conveyed to her 82 acres of land being in said county, and denying her right to dower in the land described in her petition. There was judgment for plaintiff, and defendant appealed.

Solomon Halferty deeded the land in which plaintiff claims dower to the defendant on the 4th day of October, 1884; but plaintiff, who was then his wife, did not sign or join in that deed. Defendant has been in possession of the land ever since his purchase. On August 29, 1885, Solomon Halferty, by deed of general warranty, conveyed to plaintiff and her children, therein named, 82 acres of land, in Hieu of her dower right in his land. The deed contains the following provisions, to wit: "Witnesseth: That the said party of the first part, for and in consideration of the relinquishment of dower by said party of the second part in and to all lands of said first party, and for the further consideration of natural love and affection which said first party bears said second and third parties, does by these presents, grant, bargain, and sell, convey, and confirm, unto said second and third parties, by the terms hereinafter set forth, the following described real estate, lying, being, and situated in the county of Clinton and state of Missouri, to wit: All that portion of the east half of the northwest quarter of section sixteen which lies south of a hedge fence thereon, being about 42 acres, more or less; also, the north half of the northeast quarter of the southwest quarter of section sixteen; and twenty-five acres off the south side of the east half of the northwest quarter of section six, except therefrom five acres in the southeast corner thereof belonging to W. H. Hawkins,-all of said land lying in township fifty-five of range thirty-two, containing, in the aggregate, 82 acres, more or less. To have and to hold the above-described premises, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging or in any wise appertaining, unto the said party of the second part,

for and during her natural life, then unto the said parties of the third part, and unto their heirs and assigns, forever; he, the said party of the first part, hereby covenanting that he is lawfully seised of an indefeasible estate in fee in the premises herein conveyed, that he has good right to convey the same, that said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he will warrant and defend the title unto the said second and third parties, and unto their assigns, forever." It is claimed by defendant that the land conveyed by this deed was in full of plaintiff's inchoate right to dower in all of Solomon Halferty's land; and, in support of this contention, defendant offered verbal testimony tending to show that such was the agreement between plaintiff and her husband at the time of its execution; but, on objection by plaintiff, the evidence was excluded by the court, and defendant saved his exceptions. mon Halferty died in March, 1890.

Solo

Defendant's first contention is that the court committed error in excluding the verbal evidence offered by him tending to show that, at the time of the execution of the deed from Solomon Halferty to plaintiff and her children, it was agreed between her and her husband that the life interest in the land conveyed to her was not only in lieu of, but in full of, any inchoate right of dower in all the land which he then owned, and also in the land in question, which he had theretofore sold and conveyed to defendant. It may be conceded that parol evidence is admissible for the purpose of contradicting a receipt, or the recitals in a deed as to the payment of the purchase money, or the amount thereof; but such evidence is not permissible for the purpose of adding to, enlarging upon, varying, or ingrafting upon a deed matters not mentioned therein, and having no connection therewith. The evidence offered contradicted the recital in the deed, that it was in consideration of the relinquishment of dower by plaintiff in and to all the lands which her husband then owned, in that it showed that she also relinquished her dower in the land in controversy, which he had several months theretofore conveyed to the defendant, and in which he then had no interest or estate. The evidence was clearly inadmissible, and it was correctly so held.

A final contention is that as plaintiff had not renounced the "settlement," as it is called, made upon her, by her husband, she could not claim under him as doweress. Rev. St. 1889, § 4530. If this were a suit by the widow for dower in land which her husband owned at the time of the execution of the deed to her, there might be some force in this contention; but as the land in question had already been conveyed by him, and the deed was in consideration of the relinquishment of his wife's inchoate right to dower in land which he then owned, the statute has no application, and her failure to renounce the provisions of the deed to her was no bar to her