I. Several questions of minor im*524portance are raised by appellant, which, we will dispose of in their order. It is objected that the circuit court had no jurisdiction over the subject matter of this action. The objection is overruled. Such proceedings properly belong to the customary equity jurisdiction of our circuit courts. First Baptist Church v. Robberson, 71 Mo. 326; Russell v. Eubanks, 84 Mo. 83; Purdy v. Gault, 19 Mo. App. 291.
II. It is claimed that the administrator was not entitled to recover this fund from the insurance company, .and that he has no right to maintain this action. The fact remains, however, that he has collected it, and has it in his possession, and only asks the court to direct to whom he should pay it. It is presumable that the administrator was permitted to recover this fund because the policy itself made the promise “to and with the said Charles W. Allison,, his heirs, executors, administrators, and assigns,” to pay. In such case, the administrator might well, under the provisions of the practice act, be deemed the trustee of an express trust, and sue for the use and benefit of the beneficiaries. McComas v. Insurance Co., 56 Mo. 575; Greenfield v. Insurance Co., 47 N. Y. 430.
Be this as it may, the defendant failed to raise any such question, as to the capacity of the plaintiff to maintain this action, by answer or demurrer in the court below. The objection is, therefore, waived. Rev. Stat., sect. 3519; Walker v. Deaver, 79 Mo. 672.
III. It is further objected that the petition is defective in not setting out, in haec verba, the will sought to be construed, or the terms and provisions of the whole will. This objection might have been well taken had it been opportunely interposed before trial. But we think the petition good after verdict. It states the substantive part of the will to be construed, and so clearly states the provision as to enable the court to ascertain its purport and meaning. In favor.of the verdict the presumption *525will be indulged that this is the only (clause bearing on the issue.
The practice act provides that no judgment, after-verdict, shall be disturbed “for the want of any .allegation or averments, on account of which omission a demurrer could have been maintained.” Rev. Stat., sect. 3582; Bower v. Kansas City, 51 Mo. 454; State v. White, 61 Mo. 441; Corpenny v. Sedalia, 57 Mo. 88; Sweet v. Maupin, 65 Mo. 65; Frazer v. Roberts, 32 Mo. 457; Hay v. Short, 49 Mo. 139.
IY. By the failure to answer, the allegations of the bill stood admitted. With the clause of the will, and the provisions of the policies before the court, the only matter for its determination was, as to.the proper construction to be given to the will and the policies, as, respects the proper application of this fund.
The will directed “that the balance of his (my)' property, of all kinds, be divided between his (my) brother and sister, as the law directs.” This language is broad, and certainly would be comprehensive enough to embrace every character of property owned, in law or equity, in whole or part, by the testator. But did he own the fund provided for in the policies of insurance, in that sense which would be comprised within the general terms of the will, “all my property” %
By the provision of the certificates, which constituted the contract, and directed and limited the disposition to be made of the fund arising therefrom, nothing would arise thereon until after the death of the insured ; and then the contract directed that the fund should be paid to his legal heirs, unless provided for in his will.
Manifestly, therefore, this case falls within that class of policies so prevalent throughout the United States, known as mutual benefit societies, which have frequently been before the courts for construction.
By these policies the insured makes provision for the objects of his charity and benevolence, or benefac*526tion, after his death. In this case the designated beneficiaries are his “legal heirs.”
The fund, therefore, was not an asset of the estate of the testator ; nor was it a debitum in presentí, solvendum in futuro. Nor was it in the power of the administrator, after collecting it, to divert it from the direction declared by the policy of insurance. Kentucky Masonic Insurance Co. v. Miller, 13 Bush, 494; Duvall v. Goodman, 79 Ky. 229. Nor could the administrator apply the fund as de bonis testatoris. The authorities are all one way on this point. Maryland Mutual Benevolent Society, etc., v. Clendennin, Adm’r, 44 Md. 429; Arthur v. Odd Fellows’ Benevolent Association et al., 29 Ohio St. 557; Green v. Green, 23 Hun, 478; Johnson v. Stanton, 30 Conn. 297.
The only remaining question, therefore, for determination is, whether or not the insured provided for the disposition of this fund in his last will and testament, so as to divert it from his “legal heirs.” The words, “unless provided for by will,” both from the context and the generality of like provisions in such policies, imply the same as if the language had been: unless otherwise provided for by will. Any other meaning, oi object, in employing the language used, would be strained and impractical.
This then presents the instance of a naked power oí appointment reserved by the insured, to be exercised by him, and through his last will and testament, and not otherwise. Authorities supra.
Is the language employed in the will a sufficient execution of the power ? The rules of law governing this inquiry are now sharply defined, and generally recognized by the courts.
The intention to exercise the power of appointment by will must clearly appear by a reference in the will itself to the power, or to the subject, or it must arise from the fact, to be made apparent, that the will would be inoperative in this respect without the aid of the power, *527such as that there was no other property to which it could apply. Sugden on Powers, 301, 303; Morey v. Michael, 18 Md. 228.
Kent, in his Commentaries (vol. 4, pp. 334-5), states the rule thus : “In the case of wills it has been repeatedly declared, and is now the settled rule, that, in respect to the execution of a power, there must be a reference to the subject of it, or to the power itself, unless it be a case in which the will would be inoperative without the -aid of the power, and the intention to execute the power became clear and manifest. If the will be made without -any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will; and •if the will does not refer to a power, or the'subject of ic, and if the words of a will may be satisfied without supposing an intention to execute the power, then, unless •the intent to execute the power be clearly expressed, it is no execution of it.”
In Hazel v. Hagen (47 Mo. 272-282), our Supreme Court recognize this rule as correct, and follow the opinion of Mr. Justice Story, in Blagge v. Mills (1 Story, 426), which is but an amplification of the rule laid down by Kent. It was in obedience to these rules that the following cases, where the language of the wills was quite as strong, if not stronger, than that used in the will in question, held there was no sufficient exercise of the power of appointment.
In Arthur et al. v. Odd Fellows' Ass'n (29 Ohio St. supra), the charter of the association provided that the. funds should be paid ‘ ‘ to the widow, children, mother, .sister, father, or brother, of deceased member, and in the order named, if not otherwise directed by the member previous to his death.” The will devised and bequeathed to his children “my estate and property, real, personal, and mixed.”
In Maryland Mutual Benevolent Society, etc., v. *528Clendenin (supra), the will bequeathed “the entire residue of my estate to my three sisters * * * and my esteemed friend '* * * each of them to have and receive a fourth part thereof absolutely.” His policy in said society, by the terms of the charter, provided for the payment, upon his death, of a fixed sum “to the-widow, child, children, or such person or persons to whom the deceased may have disposed of the same by will or assignment,” etc.
In Green v. Green (23 Hun, supra), the by-laws oi the association, in which the testator held a policy, provided that the premium “may be disposed of by his last will and testament, otherwise it shall belong to and be paid to his widow, or in case he shall leave ho widow, then to his heirs and legal representatives,” etc. His will bequeathed all his personal estate according to the provisions of the statute for the distribution of the personal estate of intestates.”
In Duvall v. Goodman (79 Ky., supra), the same principle is recognized.
In the will of C. W. Allison, under review, no mention is made of the policies in the Benevolent Society,, no reference whatever is made to the subject matter.. There is nothing on the face of the will to indicate to any one that such policies existed. Clearly, therefore,, unless some extraneous fact appears, to indicate that the will would be inoperative but for this fund being in the mind of the testator, the execution of the power must be held to have failed. We find nothing in this-record to justify us in holding, as requested by the respondent, that the testator had no other property subject to the operation of the clause of the will in question.. We will afford the parties an opportunity to develop this fact.
Unless such fact is made to appear on a further trial,, the circuit court should adjudge that the money in question belongs to the “legal heirs” of the testator, and should be paid over accordingly. The fund now in the *529hands of the administrator, after deducting the amount paid out by him in collecting the same from the insurance company, is not subject to the burdens and incidents of assets in the hands of the administrator, as such. It-is essentially a trust fund.
The judgment of the circuit court is reversed and the cause remanded, to be proceeded in conformably to-this opinion.
All concur.