author: WILLIAMS, C. PER CURIAM.

text:
    ANDREW J. FORGEY et al., v. MARY V. GILBIRDS, Appellant.
    Division Two,
    November 24, 1914.
    1. CONTRACTS: Cancellation: Specific Performance: Fraud: Mutuality. A widow and two children, Sarah and Noel, survived John F. Gilbirds, who died intestate seized of the legal title to 840 acres of land heavily encumbered. Sarah sued to enforce an alleged oral agreement to partition, and appealed to the Supreme Court from a decree vesting the title to all the land in the widow, her mother. The widow thereafter executed a deed to a trustee, which empowered him to manage the property, or if need be sell any part of it, for the purpose of paying off the incumbrances, together with debts of the grantor amounting to over $1800, the remainder to go to her for life and then in fee to her son and his wife. At about the same time she contracted to sell a portion of the land, and when she found she could not perfect title on account of Sarah’s pending appeal in the partition suit, she entered into a contract with Sarah and her husband, dated April 28, 1909, by which it was agreed that the trustee should convey to the widow for life, with remainder in Sarah; that Sarah should'dismiss her appeal in the partition suit; that the proceeds of a sale of 334 acres, for which all parties agreed to make deeds, should go to pay the widow’s debts and reduce the incumbrances; that thé widow should, for her life, lease the remainder to Sarah and her husband for $300 a year, the lessees to pay all taxes and insurance; and that the lessees should have the right to sell, “as soon as practicable and on the best terms obtainable,” all or any portion of the premises to further reduce the incumbrances, the widow agreeing to join in all deeds necessary to carry out any such contract of sale. Sarah’s appeal was dismissed and the provisions of the contract were carried out, until Sarah’s husband, in July, 1910, made a contract, which Sarah afterwards ratified, for the sale of sixty-four acres of the remaining land, whereupon the widow refused to join in a deed. To a suit for specific performance brought by Sarah, her husband and the contracting purchaser, the widow answered asking that the contract of April, 1909, be cancelled as unconscionable, not supported by valid consideration, and procured by false representations. She testified that, to induce her to sign, her daughter told her the $300 a year rent was a mere form — that she should never want. The evidence shows that the income from the premises was only about $865 a year, which left very little in the hands of Sarah and her husband after they made the payments specified in the contract of 1909.

      Held, that, in view of all the facts, the trial court’s refusal to cancel the contract of 1909 must be upheld, especially since there is no showing in the record that Sarah’s appeal in the partition suit was other than meritorious, or that she refused or failed to carry out her promise to provide additional support for her mother.

      Held, also that, since the contract of 1910, which must be considered together with that of 1909, definitely fixed the price and described the land; was mutual as regards the widow and the purchaser; was a sale “as soon as practicable and on the best terms obtainable,” and was ratified by Sarah, the trial court was right in decreeing that the widow should perform specifically by joining in a deed to the purchaser.
    2. SPECIFIC PERFORMANCE: Undisclosed Principal. Specific performance may be enforced either by or against an undisclosed principal when his duly authorized agent, in his own name, within the scope of the agency, has contracted concern- ■ ing the sale or purchase of the principal’s land.
    Appeal from Pike Circuit Court. — Hon. B. H. Dyer, Judge.

      Affirmed.

      Pearson & Pearson for appellant.
    (1) The court erred in entering a decree against appellant: First: Because she was not-a party to the contract with George W. Jacobs. Persons not parties to a contract cannot be required to specifically perform the same. Otto v. Young, 227 Mo. 215; Luther v. Stillwell, 73 Mo. 499; Pomeroy, Spec. Perf. Contracts (2 Eld.), p. 210, sec. 147; Fry’s Spec. Perf. (5 Ed.), pp. 80, 94 and 171, secs. 205,167 and 347; 36 Cyc. 595, sec. 6; Waterman on Spec. Perf. (1881 Ed.), pp-. 80 and 120, secs. 58 and 92. Second: Because there is no mutuality of either right or remedy as to appellant. Neither appellant nor her interest in the property are mentioned or made known to George W. Jacobs, contracted with or for, by him in this contract. She is in no way privy to this contract — an absolute stranger. Equity will not specifically enforce a contract and sale of land, unless there be mutuality both as to obligation and remedy. Glass v. Row, 103 Mo. 539; Mastín v. Iialley, 61 Mo. 200; Paris v. Halley, 61 Mo. 458; Huff v. Shepard, 58 Mo. 247; Holman v. Conlin, 143 Mo. 378; Davis v. Petty, 147 Mo. 383; Tenny v. Turner, 111 Mo. App. 600. Third: Because no consideration has passed, or been proffered to appellant, by respondent Jacobs for the execution and delivery of a deed to the land in question. Davis v. Petty, 147 Mo. 383; Lipscom v. Adams, 193 Mo. 546; Rosewald v. Middlebrook, 188 Mo. 89. Fourth: Because respondent Jacobs has never purchased nor contracted to purchase from appellant any land, nor the interest in any land owned by appellant. This contract is in the face of the Statute of Frauds, requiring contracts for the sale of real estate to be in writing, and signed by the party to be charged. Sec. 2783, R. S-. 1909. (2) Respondents have no standing in a court of equity, seeking to enforce the specific performance on the part of appellant, of a clause in the contract of 1909, favorable and beneficial to them, when they have not performed the whole of that which they contracted to do. Eosenberger v. Jones, 118 Mo. 567; Mastín v. Halley, 61 Mo. 202; Improvement Co. v. Tower, 158 Mo. 292; Secret Service Co. v. Grill-Alexander Mfg. Co., 125 Mo. 156; Clay v. Mayer, 183 Mo. 159. Eespondents did not wash their hands before they entered the Supreme Court. They agreed to pay off the remaining incumbrance, in consideration of appellant having deeded to them the remainder interest in all of her property. Appellant caused such a deed to be made. Eespondent Sarah J. Forgey now has title to such remainder interest and appellant gets nothing for that interest. Eemoval of the incumbrances was the consideration to be paid on respondents’ part for this remainder interest. The contract of 1909 is not definite and certain. There was no mutuality. Even if enforcible, respondents have not complied with the terms and conditions of this clause of the' contract. (3) Appellant would further insist, that she should not be forced to perform this contract made by Forgey with Jacobs, because, it would thereby force the performance of the contract of April 28,1909. Which contract, as its terms and the evidence in this case-show, is: First: A biting, unconscionable contract, supported by a boggy and inadequate consideration; second: Procured by deception and false and fraudulent representations; third: Forced, by the stress of financial embarrassment, after the appellant had been led to believe that respondents were ready and willing to assist her by making an entirely different contract; fourth: That respondents have failed to show a performance on their part of each essential ingredient of the contract, which, by the terms of the contract is to be performed by them; fifth: That by the allegations in the petition, respondents affirmatively show, that they have not complied with the terms of the contract as a condition precedent to their rights to have appellant perform the same on her part; and, that such a decree, would produce injustice; and, would be inequitable, considering all the circumstances of this case. Gottfried v. Bray, 208 Mo. 658; Clay v. Myer, 183 Mo. 158; Holman v. Conlin, 143 Mo. 378; Mcllroy v. Maxwell, 101 Mo. 305; McQuay v. Land Co., 230 Mo. 361; Real Estate Co. v. Spellbrink, 211 Mo. 710; Pomeroy v. Fullerton, 131 Mo. 710; Kirk v. Middlebrook, 201 Mo. 288; Rosenwald v. Middlebrook, 188 Mo. 88; Lampton v. Chensy, 186 Mo. 551; Gloeckner v. Kittlaus, 192 Mo. 495.

      Frank J. Duvall and Hosteller & Haley for respondent.
    (1) In equity suits appellate courts defer largely to the finding of the trial courts on account of the superior vantage ground of the trial judge in observing the demeanor of the witnesses. (2) A party cannot be permitted to avoid the effect of a contract by an assertion that the other party to the contract agreed that its terms should not be binding; nor will the party be permitted to deny that it expresses the agreement which he made; nor can a contract be avoided by one of the parties thereto on the ground that he did not read it (he being sui juris), or that if he read it he did not understand its terms. Jones v. Shaw, 67 Mo. 667; Smith v. Thomas, 29 Mo. 307; Bank v. Fesler, 89 Mo. App.-226; "Wislizenus v. O’Fallon, 91 Mo. 184; Crim v. Crim, 162 Mo. 544, 54 L. R. A. 502; Mfg. Co. v. Carle, 116 Mo. 591; England v. Houser, 163 S. W. 890; Avery Co. v. Powell, 161 S. W. 335; Beck v. Obert, 54 Mo. App. 240; Ely v. Sutton, 162 S. W. 755; Bank v. Bank, 244 Mo. 594; Berheret v. Myers, 240 Mo. 75. (3) Courts of equity will enforce contracts which are fair and reasonable and will decree specific performance of the same, not as a matter of grace, but as a matter of right. Evans v. Evans, 196 Mo. 1;. Kilpatrick v. Wiley, 197 Mo. 123; Pomeroy’s Equity Jurisprudence (3 Ed.), see. 1404; Hardy v. Matthews, 42 Mo. 406; McQuitty v. Wilhite, 247 Mo. 163. It is frequently said (somewhat loosely, we think) that courts grant specific performance of contracts in the exercise of a discretion, thus leaving- the inference at least, that it is entirely discretionary with the court whether it will grant the specific performance or not. This is not the correct interpretation to put on such expressions. The discretion mentioned is not an arbitrary, or capricious one, but is a sound judicial discretion, and controlled by established principles of equity as applied to the facts of the case. Land & Lumber Co. v. Blackman, 202 Mo. 307; Kirkpatrick v. Pease, 202 Mo. 493; Berber et v. Myers,-240 Mo. 58; Hunting & Pishing Club v. Plaekman, 156 S. W. (Mo. App.) 791. As to the question of mutuality: An undisclosed principal may sue on and enforce a contract made for the sale of realty by his agent in his (the agent’s) own name. Davidson v. ITurty, 133 N. W. 862, 39 L. E. A. (N. S.) 324; Schmncker v. Grain Co., 28 Okla. 721. Likewise an agent may contract for the purchase of land for an undisclosed principal and the latter may maintain a suit in his own name and enforce the contract, it being immaterial whether the principal was known or unknown during the transaction, or whether the party supposed he was dealing with the agent personally, and on his own behalf. Kelly v. Thuey, 143 Mo. 438; Pomeroy, Specific Performance (2 Ed.), sec. 89; Pry, Specific Performance (3 Ed.), sec. 238; Otto v. Young, 227 Mo. 193; Eandolph v. Wheeler, 182 Mo. 145. A contract for the sale of land may be specifically enforced although it is not signed by both the parties thereto. Mastín v. Grimes, 88 Mo. 478. The remedy of specific performance is based upon the existence of a contract between the parties to the suit or between those through whom they claim. 26 Am. & Eng. Ency. Law (2 Ed.), p. 20. The principle that contracts must be mutual and binding upon both parties does not, it has been held, mean in every case that each party must have the. same remedy for a breach by the other, but only that the contract is enforcible on both sides in some manner, not necessarily by specific performance in each instance. 26 Am. & Eng. Ency. Law (2 Ed.), p. 32. (4) Unconscientious conduct and acts by a plaintiff in order to prevent specific performance must be confined to misconduct in regard to or at all events connected with the matter in litigation. Pomeroy’s Equity Jurisprudence (3 Ed.), sec. 399. (5) The construction which the parties have placed upon a contract themselves is strongly persuasive with a court in interpreting its meaning. The defendant in a suit for specific performance who had theretofore acted on the contract as it was understood by the plaintiff is bound thereby, and cannot set up the defense that the contract was to be construed differently, and that the plaintiff had refused to carry it out according to such different construction. 26 Am. & Eng. Ency. Law (2 Ed.), p. 42. Mrs. Grilbirds in her arrangement with Dr. Morrow conceded by the express terms of the deed that it was absolutely necessary that the land should be sold so as to provide the money with which to pay off the encumbrances ; and in the contract with Mr. and Mrs. Forgey of April 28,1909, in addition to it being expressly provided that they should sell the land and use the money derived therefrom in discharging the remaining encumbrances, to-wit, the $5800, Mrs. Grilbirds herself acted upon the theory that it was the meaning of that contract that Mr. and Mrs. Forgey should sell sufficient land to pay off the remaining encumbrances, but her chief objection was to them selling the home tract. She will not now be permitted under the authorities to claim a different interpretation of the contract from that which she voluntarily placed upon it at and subsequent to the time it was drawn.
   WILLIAMS, C.

This is a suit for specific performance of a contract whereby plaintiffs seek to compel defendant to join with the plaintiffs Sarah J. and Andrew J. Forgey in conveying to plaintiff Jacobs the title to 65 acres of land located in Pike county, Missouri. Defendant filed a general denial and in her answer, seeking affirmative relief, asked to have the written contract cancelled, on the grounds of fraud and misrepresentation in its procurement. Trial was had in the circuit court of Pike county, resulting in a decree in favor of plaintiffs and denying defendant the affirmative relief sought, and directing that the money derived from the sale he used in paying off the encumbrance. Defendant thereupon perfected an appeal. In 1904, appellant’s husband, John F. Gilbirds, died intestate, vested with the legal title to a tract of 840 acres of land situated near Bowling Green, Pike county, Missouri. The 65 acres involved in this suit, and known as the Home Farm, was a portion of said tract of land. Said Gilbirds left surviving him his widow, Mary V. Gilbirds (appellant herein), and two children, Sarah J. Forgey (respondent herein), and Noel F. Gil-birds. Sarah married Andrew J. Forgey (respondent herein) a short time before her father’s death. A few months before his death, said Gilbirds, his wife joining him, therein, executed two separate deeds of trust. One deed of trust to secure the sum of $18,000, covering all of said land except 120 acres; the other deed of trust for $800, covering the remaining 120 acres. Some time after the death of said Gilbirds, the widow and the heirs joined in making a sale and conveyance of about 140 acres of this land to a Mr. Quinn for $3600, which money was applied on the mortgage indebtedness. Later .a controversy arose between the widow and her children with reference to the division of the land and, as a result thereof, Sarah J. Forgey, joined by her husband, brought a partition suit to enforce an alleged parol partition agreement. It appears that as a defense to said suit the widow set up the claim that she had furnished the entire purchase price for said 840 acres of land at the time that it was purchased and the title taken in her husband’s name. A trial of this suit was had resulting in a decree in favor of the widow (appellant herein), and by said decree the legal title was divested out of the heirs of her said husband and vested in her. Mrs. Forgey thereupon perfected an ■appeal in said cause to this court.

A- few months thereafter, Mrs. Gilbirds, being-joined by her son Noel and his wife, executed a deed conveying all of their interest in and to the remaining 700 acres of this land to one Winn F. Morrow, of Kansas City, Missouri, in trust. Mr. Morrow was the father-in-law of Noel F. Gilbirds. This deed recited that all of the land conveyed belonged to Mary Y. Gilbirds except 160 acres thereof which belonged to Noel F. Gil-birds and his wife. The deed recited that the property was encumbered by the $18,000 mortgage; that there was then interest due to the amount of $720, and that Mrs. Gilbirds was indebted to a law firm in the sum of $800 for legal services, and also indebted to Maud M. Gilbirds in the sum of from $300 to $500. Said deed further stated that it was the desire of the first parties thereto to have all of said property managed by said Morrow and to subject portions of said land to sale for the purpose of discharging the debts in said deed mentioned and to provide for the final distribution and descent of said property. The trustee was empowered to take possession of, manage and control the property and to make sale of any portion or portions of the property, as he might see fit, for the purpose of raising funds with which to discharge the above-mentioned debts. The. instrument further provided that after said indebtedness was paid off in the above manner, the title of said real estate should revert as follows: The remaining portion of the land belonging to Noel and his wife should revert to them and be held by them as it was before the trust conveyance was made. The remainder of the property was to go to Mary Y. G-ilbirds for life with remainder over to Noel P. Grilbirds and his wife as tenants in common. At about this time, whether before or after the trust deed was executed to Morrow, it does not clearly appear, Mrs. Grilbirds had contracted to sell about 134 acres of this land to George W. Chappie for approximately $7000 and she also desired to make sale of about 160 acres of the land to her son Noel for the price of about $4400, which price was about $5000 less than its market value. After the property was conveyed to Mr. Morrow, Mrs. Gilbirds became dissatisfied with the arrangement provided in the trust deed; and was also unable to perfect title to the 134 acres contracted to be sold to Mr. Chappie and to the 160 acres to her son Noel, without Mrs. Porgey and her husband joining in making the conveyances. This, apparently, due to the fact that the appeal in the partition suit was pending in the Supreme Court and the purchasers were unwilling to pay the purchase price unless the Porgeys joined in the conveyance. In this situation, Mrs. Gil-birds employed an attorney for the purpose of aiding her in getting the title back from Mr. Morrow and to make general adjustment of the situation, whereby sales could be made of sufficient property to pay the indebtedness and title thereto delivered to the purchasers. .The attorney made a trip to Kansas City and then took the matter up with the attorney for the Porgeys with a view to making an entire adjustment of the situation. These negotiations continued for several weeks, finally resulting in the trustee, Mr. Morrow, making conveyance of all of said land, except the 160 acres owned by Noel and his wife, to Mary Y. Gilbirds (appellant herein) and Sarah J. Porgey (respondent herein). The deed provided that Mrs. Grilbirds should have a life estate in said real estate only and that the remainder in said property was vested in Sarah J. Forgey. As a part of the settlement, it was further agreed that the Forgeys would dismiss their appeal in the partition suit then pending in the Supreme Court. On the same day that this deed was executed, and as a part of the general adjustment of the situation, the following contract, dated April 28, 1909, was entered into by and between Mary V. Gilbirds as first party and Sarah J. Forgey and Andrew J. Forgey as second parties:

This contract made and entered into this 28th day of April, 1909, by and between Mary V. Gilbirds, party of the first part, and Sarah J. Forgey and Andrew J. Forgey, parties of the second part, and all being of Pike county, Missouri,
Witnesseth: Whereas, the real estate described in a certain deed made by Mary V. Gilbirds, Noel F. Gilbirds and Maude M. Gilbirds to Winn F. Morrow dated July 3, 1909, and recorded in book 142 at page 561 of the deed records of Pike county, Missouri, is encumbered by a certain deed of trust originally given to the Prudential Insurance Company of America, which deed of trust is recorded in Vol. 128 at page 118 of the deed records of Pike county, Missouri, and upon which deed of trust there now remains due and unpaid approximately a little over fifteen thousand dollars, and whereas there is another encumbrance of eight hundred dollars on a portion of said real estate which was given originally to the People’s Savings Bank of Bowling Green, Missouri, and whereas it is the intention of the parties to this instrument that the title to said lands shall be transferred from the said Winn F. Morrow back to said Mary V. Gilbirds during her life with remainder to her daughter, Sarah J. Forgey, and it is further the intention of the parties to this instrument that the encumbrance above mentioned, together with certain other debts which the said Mary V. Gilbirds is liable for,' which debts are mentioned in said deed from Mary V. Gilbirds et al. to Winn F. Morrow, shall be paid off or reduced as far as possible in the following manner, by applying the proceeds of the sale of about 184 acres of said lands to George W. Chappie on said indebtedness and also by applying the proceeds of the sale of 160 acres of said land to Noel F. and Maude M. Gilbirds on said indebtedness, it being the intention of the parties to this instrument to make suitable deeds to consummate the transfer of the title to said parties.
The said parties of the second part in consideration of the premises hereinafter mentioned agree and obligate themselves to pay of£ and discharge the remaining encumbrance against said land remaining after such transfers so mentioned shall have been made, under the conditions as hereinafter stated, so that in the end whatever lands there may remain shall be free and clear of any encumbrance now existing and to that end it is agreed by and between the parties hereto as follows: That the real estate mentioned in said deed to said Winn F. Morrow except those portions to be conveyed to George W. Chappie and to Noel F. and Maude M. Gil-birds shall be conveyed to Mary Y. Gilbirds for and during her natural life, the remainder, after her life estate to be vested in Sarah J. Forgey with this proviso, however, that in the event Sarah J. Forgey shall die before the said Mary V. Gilbirds, then such remainder shall revert back to said Mary V. Gilbirds and vest in her.
It is further agreed by the parties to this instrument that the the said Mary V. Gilbirds leases to the said parties of the second part all of said real estate the title to which remains in her for and during her natural life, at a fixed annual rental of three hundred dollars ($300) payable quarterly, the first installment of seventy-five dollars being due and payable immediately, and the second payment of seventy-five dollars to be due and payable on June 1, 1909, and the remaining installments of $75 at the end of each succeeding three months thereafter during the lifetime of the -said Mary Y. Gilbirds or until the termination of this lease by the death of Sarah J. Forgey before the death of said Mary V. Gilbirds, which contingency is the only event the happening of which will terminate this lease unless the same shall be terminated by the voluntary consent and agreement of all the parties to this instrument.
It is further understood and agreed that in addition to the payment of the $300 per annum rent the parties of the second part will pay and discharge all taxes against said land which may hereafter become due and payable during the existence of this lease.
•It is further understood and agreed that the parties of the second part will pay all necessary insurance premiums on the buildings on said premises and will look after keeping said premises in repair.
It is further understood and agreed that the party of the first part will give possession of said premises within a reasonable time and that said parties of the second part shall have the exclusive right to manage, control and lease said premises and collect all rents arising therefrom and receive the benefit of all the products of said premises during the continuance of this lease.
It is further understood and agreed that the parties of the second part shall have the right to sell all or any portion of said premises either for the purpose of applying the proceeds of such sale or sales to the discharge of the remaining encumbrances against said premises or for the purpose of reinvesting, and the said party of the first part agrees to join in all necessary deeds to carry out such contract of sales as may be negotiated by said parties of the second part, it being the desire and intention of all of the parties to this instrument that so much of the real estate which» shall be conveyed back to Mary V. Gilbirds by the said Morrow shall be sold as soon as practicable and on the best terms obtainable in order that the encumbrance which remains against said lands shall be paid off and discharged to the end that whatever remains of said lands, the title to which shall be in said Mary V. Gilbirds and Sarah J. Forgey, as above stated, may be free and clear of encumbrance.
It is further understood and agreed that whatever sales of any portion of said premises may be consummated by said parties of the second part the proceeds of the same shall be devoted and applied to the payment and extinguishment of the encumbrances now existing on said premises until the same shall be fully discharged,, and it is further agreed that this lease shall continue and remain in force during the natural life of said Mary Y. Gilbirds unless sooner terminated by the mutual consent and agreement of all parties hereto or by the death of said Sarah J. Forgey happening before the death of said Mary Y. Gilbirds.
It is further understood and agreed that all existing contracts for the leasing of all or any portion of said premises shall enure to the benefit of the said parties of the second part and they shall have the right to collect from said tenants who may be holding by existing leases whatever rents may be due from them for the use of said premises.
In witness whereof the parties have .hereunto set their hands to this and a duplicate contract on the day and date above written.
(Signed) Mart V. Gilbirds,
Sarah J. Forgey,
A. J. Forgey.

At the time this contract was made Mrs. Gilbirds was 67 years old, Mrs. Forgey 31 years old and Mr. Forgey 61 years of age.

In order to assist in consummating the settlement, Mr. Forgey advanced to Mrs. Gilbirds’ attorney the sum of $1250, the greater portion of which was used in paying off obligations of Mrs. Gilbirds which were mentioned in the trust deed to Mr. Morrow. After the foregoing contract was executed all the necessary parties joined in making conveyances of the land to Mr. Chappie and to Noel F. Gilbirds to the 160 acres and the proceeds of these two sales were applied on the mortgage indebtedness, reducing the same to approximately $5000, and arrangements were made by which a local bank of Bowling Green became the purchaser of the balance of said mortgage indebtedness. Mr. Forgey took charge of the land, improved some of the fences, placed a tenant on the home tract and rented a greater portion of the farm to tenants and exercised general supervision over the farm; collected rents; paid the accrued interest on the loan, the insurance on the buildings and the taxes on the land during the years 1909 and 1910. In July, 1910, said Andrew J. Forgey entered into a contract with George W. Jacobs (one of respondents herein), whereby said Forgey agreed to sell and convey to said Jacobs for the sum of $7500 the 65 acrés now involved in this law suit. Mrs. Forgey did not join with her husband in making the contract of sale .with Jacobs but later executed a separate, written ratification of said contract, directing that said written ratification be • attached to the original contract between Mr. Forgey and Mr. Jacobs. Mr. Forgey had been attempting to make a sale of the home tract for some time and had received an offer of $100 per acre for the same from another party and finally made the foregoing agreement whereby the purchase price was fixed at $115 per acre. When the time came for consummating’ the deal and making the conveyance of the property to said Jacobs, Mrs. Gilbirds refused to sign the deed and thereafter this suit, was instituted. The evidence shown that Mr. Forgey collected as rents from the tenants on the farm in cash rents and grain rents an average of about $865 for each of the years of 1909 and 1910. That he paid Mrs. Gilbirds each year the sum of $300, as provided in the contract, and six per cent interest on the $5800 encumbrance amounting to $348 per year. This would leave in his hands each year the sum of approximately $225, out of which he had to pay the taxes, insurance and repairs. The evidence does not show what these last items amounted to each year. The evidence on the part of the Forgeys tended to show that they had complied in full with their part of the contract with Mrs. Gilbirds; and in addition, had offered to let her come to their home and live, which she did for a few weeks, and that they had purchased a home for her near their home in Paynesville, Missouri, and had asked her to send for her household goods, move into the house and occupy it as her home, but that she refused to move into the house. Mrs. Forgey testified that she had given her mother several dresses and considerable clothing-, and that before the contract was signed she had told Mrs. Gilbirds’s attorney that she would always take cafe of her mother and that she would not want for anything. The evidence on the part of Mrs. Gilbirds was to the effect that before she signed the contract she made objection to the amount of $300 being provided for her support, and made the statement that it was not enough for her to live on and that her daughter told her that the $300 was a mere matter of form and that she would see that she would never want for anything, and that after the contract was signed she was treated coolly when she went to live at her daughter’s house; that she did not blame her daughter for this but blamed her daughter’s husband. That Mr. and Mrs. Forgey owned a general store a Paynesville and that she purchased some small articles at different times and that each time Mr. Forgey paid her the quarterly rent of $75 he deducted therefrom the amount of her bill at the store. She denied that Mr. Forgey had purchased the home for her at Paynesville, but admitted that they had invited her to use it as her home. The evidence further showed that Mrs. Gilbirds, aside from her interest in the farm, owned an equity in a city lot in Bowling Green, Missouri, diamonds valued at $4000 and household furniture.

The following excerpts are fair samples of the testimony of Mrs. Gilbirds concerning the contract, etc. :

£ £ Q. Did you or did you not believe the statements made to you by your daughter, that that $300 consideration didn’t amount to anything, and that she would see that you wanted for nothing? A. Yes, sir, I certainly did, or I never would have signed it in the world.
‘ ‘ Q. Coming hack to the question: What did Mrs. Forgey say to you at my residence that Sunday afternoon, which you say deceived you? A. She didn’t say so much at your residence, except to state that she wanted me to have my own spending money, that the $300 wasn’t enough for me to live on, and that she would give me all I wanted, and she said, ‘I will get your clothes and things, and they shan’t cost you anything. ’
“Q. All that Mrs. Forgey said, was that she wanted you to have your own spending money, and you know that I will take care of you? A. Yes, sir.
“Q. That’s all she said? A.- Yes, sir, I think that’s all she said.
“Q. That, you think, was an inducement for you to sign the contract? A. She offered me more, she said, ‘You come down and live at my home, and I will malee you comfortable. ’
“Q. Did that influence you to sign the contract? A. No, sir, because I knew if things didn’t suit me there I wouldn’t stay—
“Q. That was a bad contract, this contract of April 28,1909, that was a cut-throat contract, I believe you stated? A. Yes, sir.
“Q. When did you make up your mind that it was? A. I made up my mind that it was before. I signed it.
“Q. You admit, then, that you read the contract over three times before you signed it? A. I.read the lower part where he was to get my crops and everything from the place.
“Q. You read that? A. Yes, sir.
“Q. Ton still say it was a week or ten days before yon actually signed it, and during that time you saw the contract, you called at Judge Gray’s office and saw the contract, you say,-three times, and read it; is that right? A. I guess so, if you say so.
“Q. I am not saying anything; I am asking you about it. A. I don’t scarcely know. I looked at it at least three different times, in case that I wanted to read it, but I don’t know that I read it that many times, and I thought she would be good and kind to me, -and that her husband would treat me nice and kind, I thought she would do it again, and I signed the contract, and I found out that they didn’t do as they had agreed and their treatment was cold—
“Q. Mrs. Gilbirds, Mrs. Forgey on the witness, stand said that she had always given you whatever you needed; state to the court whether she has provided all you want or not. A. No, sir, and she knows it too well; she has given me some little things that wasn’t charged to me, but I think nearly everything I got there was charged to me, and it was deducted from that $75 I was to get every quarter.
“Q. Was everything that you bought at the store charged against you? A. Yery near all, except what she gave me.
“Q. What was the nature of the things that she gave you? A. She gave me one very fine lace waist that she made out of her old one, and that I appreciated very much, and she gave me some two or three little things.
“Q. ' I want you to tell the court just what she has given you as near as you can remember? A. She has given me some very nice things! I don’t remember, not many, but we were always exchanging presents between us; she gave me a very nice coat in St. Louis, and I was very proud of it, and which I still have; and she paid my hotel hill once or twice, and several little things.
“Q. What has she done towards paying yonr house rent and your grocery hills and clothing here in Bowling Green? A. She paid one month’s rent, and she moved me off the farm.
“Q. And that’s all she paid? A. Yes, sir.”
Appellant’s grounds for reversal when reduced to their last analysis are as follows:
1st. The contract of April 28,1909, should he can-celled because unconscionable, unsupported by an adequate consideration and was procured by false representations.
2nd. If the contract is not to be cancelled yet it should not be enforced because:
a. Of want of mutuality.
b. It is too indefinite to be enforced by a court of equity.
c. The Forgeys have failed to perform the same.
d. The power of sale if valid could only be exercised by the joint action of Mr. and Mrs. Forgey whereas Mr. Forgey alone contracted for the sale to Jacobs.
These propositions will be discussed in their order.

I. It is contended that the contract set forth in the foregoing statement should be cancelled because it is an unconscionable contract, unsupported by an adequate consideration and was procured by fal>se representations. In supporting this point, appellant contends that for the sman outlay of $300 annually during the remainder of Mrs. Gilbirds life, the Forgeys obtained from Mrs. Gilbirds the rents and profits from this large tract of land during the lifetime of Mrs. Gilbirds and upon her death the remainder in fee to become vested in Mrs. Forgey. A careful review of the evidence, however, discloses that the above is not an accurate statement of the situation either with reference to what was surrendered by Mrs. Gilbirds or with reference to what was surrendered by the Forgeys as consideration for the agreement. The defect in the statement is that it assumes that prior to the agreement Mrs. Gilbirds was the owner of the fee simple title to said land and further assumes that the sole consideration coming from the Forgeys was the annual payment of $300.

The contract of April 28, 1909, between Mrs. Gil-birds and the Forgeys and the deed of even date from Morrow, as trustee, to Mrs. Gilbirds and Mrs. Forgey must be considered in the light that they were parts of one transaction, because they were both executed as the final adjustment of the unfortunate condition of affairs existing between all. the parties owning, or claiming to own, an interest in the land (excepting, of course, the mortgagees); and in determining the question of adequacy of consideration the situation should first be viewed with reference to the conditions existing prior to said final adjustment. Turning to the evidence in this regard, we find that, at that time, Mrs. Gilbirds instead of owning the fee simple title to the land (as appellant would seem to assume), owned only an equitable life estate in that portion of the land remaining after sufficient of the land should be sold to satisfy the existing encumbrances; the legal title, together with the right to possession of the land and to collect the rents and profits, was in Mr. Morrow, as trustee, and the equitable fee simple estate in remainder was in Noel Gilbirds and wife as tenants in common. In addition to this an outstanding cloud upon the title existed by reason of an appeal having been taken by Mrs. Forgey from the decree in the partition suit, by which decree the title had been divested from the heirs of John Gilbirds (one of whom was Mrs. Forgey) . and vested in Mrs. Gilbirds. In that situation, conveyance of any of the property was deadlocked; interest was accumulating on the encumbrances; Mrs. Gilbirds was receiving no income whatever from the land, and foreclosures under the mortgages were imminent. By virtue of the general adjustment which culminated in the contract in question the Forgeys agreed to and did dismiss the appeal in the partition suit above referred to and agreed to join in the conveyances, thereby clearing the way to make title to the land, so that, for the purpose of satisfying the encumbrances, portions of the land could be sold at private sale and the hazard of sacrifice incident to sale under foreclosure be avoided; Mr. Forgey advanced the sum of $1250 with which to satisfy certain claims against Mrs. Gilbirds which were mentioned in the deed to Morrow, trustee; Mrs. Gilbirds retained her life estate the same as before and in addition thereto the contract provided that in the event Mrs. Gilbirds should survive Mrs. Forgey the remainder in fee should thereupon vest in her, otherwise to be in Mrs. Forgey. By said contract the Forgeys became the lessees of the land for the rental of $300 per year, the lease to terminate upon the death of Mrs. Forgey, if Mrs. Gil-birds was then living. The Forgeys further agreed to pay all taxes, insurance on buildings, and to keep the premises in repair. As will be noticed from the statement of facts set forth above, the average annual income remaining in the hands of the Forgeys after payment of the rental and interest was.approximately the sum of $225, out of which they were obligated to pay the taxes and insurance, and to keep the premises in repair. "What these additional items would total does not appear, but the amount remaining would certainly be very small. The contract further undertook to vest in Mr. and Mrs. Forgey the power which had just prior thereto been vested in Morrow, trustee, to-wit, the power to make contracts for the sale of sufficient of said lands to pay off the existing encumbrances.

Appellant contends, however, that the appeal taken from the decree in the partition suit was not taken in good faith bnt that said appeal was without merit and was taken for the purpose of harassing appellant and unfairly coercing her to sign the contract. If this were true, it would undoubtedly so color the transaction with fraud and unfair dealing as to cause a court of equity to give relief. But the contention must fail because it is not supported by the evidence. It is true, no doubt, that the right of appeal exercised by Mrs. Forgey did exert a strong influence in producing the contract in question. As much is conceded by respondents. But this does not prove that the appeal was without merit or that it was impelled by bad faith. This, because an appeal in good faith and upon meritorious grounds would also produce that result. The record in the present case is silent with reference to the merits or demerits of Mrs. Forgey’s rights under the then pending litigation, and we are therefore unable to say that it was without merit and promoted in bad faith.

With reference to the claim of false representations, the testimony of both Mrs. Forgey and Mrs. Gil-birds was, in .substance, that before the contract was signed Mrs. Gilbirds objected to the contract on the ground that the $300 ‘provided for her was not sufficient to keep her and that Mrs. Forgey stated that the $300 was only a matter of form and that she wonld see that her mother was amply provided for. From aught that appears in the evidence, there is nothing to show but that this promise was made in good faith. The daughter admits that she made the promise and insists that she has carried out that promise and has helped her mother all that she would permit. Mrs. Gil-birds does not claim that her daughter has refused in any particular to live up to that promise but admits that her daughter has given her some outside aid. She further admits that the daughter asked her to make her home with the daughter and her husband at Paynesville, which she did for several weeks, and that afterwards Mr. Forgey offered her the use of a residence property at Paynesville and offered to move her furniture there so that she might keep her own home, but this offer she refused. The main fault that Mrs. Gilbirds found with the Forgeys, with regard to the failure of her daughter to furnish her outside aid, appears to arise from the fact that some small articles which she purchased at Mr. Forgey’s store were charged to her and that Mr. Forgery kept the amount of the bill out of her rent money. The evidence does not disclose what these items were. Neither does the evidence disclose that these were called to the attention of Mrs. Forgey and that she refused to pay them. It is true that there were differences arising between the parties after this contract was signed, but upon a careful review of the testimony, the impression prevails that these conflicts were the result of a personal dislike which Mrs. Gilbirds entertained for Mr. Forgey, rather than because of a failure upon the part of Mrs. Forgey to supply Mrs. Gilbirds with necessary additional support.

We have painstakingly read the entire evidence in this case and have carefully considered all suggestions of counsel in their briefs, and while the writer is free to admit that upon first impression we were inclined to look with suspicion upon the entire transaction, because of the peculiar relationship of the parties, yet upon the ascertainment of the true situation, as disclosed by the entire record before us, we have no hesitancy in saying that the action of the court was proper in refusing to decree a cancellation of the contract.

II. Was the decree of the court proper in directing specific performance? Upon due consideration, we have reached the conclusion that this question must be answered in the affirmative. In insisting' ^-ia^ ^ie coi;ir^ erre(I in this regard, appellant, in one portion of her brief, handles qUestion on the theory that the written contract of April 28th is the only written document upon which the prayer for specific performance is based, and in another portion of her brief considers the question from the viewpoint that the contract between the Porgeys and respondent Jacobs is the sole contract sought to be enforced. Neither hypothesis is correct. Both contracts are to be considered together in determining that question. Respondent’s theory is that Mrs. Gilbirds, by her contract of April 28th, authorized and empowered the Porgeys to make a contract of sale of the land, for the purpose of reducing or satisfying the existing encumbrance, and that in exercising the power thus given they entered into the contract with Jacobs, which, when read in con-' nection with the contract of April 28th, obligated Mrs. Gilbirds to join in the conveyance and obligated - Jacobs to purchase the land. That portion of the contract of April 28th giving the Porgeys the power to make contracts for the sale of the land was as follows:

“It is further understood and agreed that the parties of the second part shall have the right to sell all or any portion of said premises either for the purpose of applying the proceeds of such sale or sales to the discharge of the remaining encumbrances against said premises or for the purposes of reinvesting, and the said party of the 'first part agrees to join in all necessary deeds to carry out such contract of sales as may be negotiated by said parties of the second part, it being the desire and intention of all of the parties to this instrument that so much of the real estate which shall be conveyed back to Mary V. Gilbirds by the said Morrow shall be sold as soon as practicable and on the best terms obtainable in order that the encumbrance which remains against said lands shall be paid off and discharged to the end that whatever remains of said lands, the title to which shall be in said Mary V. Gilbirds and Sarah J. Forgey, as above stated, may be free and clear of encumbrance.”

The above clause undoubtedly constituted the Forr geys the agents of Mrs. Gilbirds to make contracts for the sale of the land with power to fix the price of the land. The only words that in any manner undertake to limit their power to fix the sale price are the words expressing that it was ‘the desire and intention of the parties that the land should be sold “as soon as practicable and on the best terms obtainable.” The evidence shows that the price for which the Forgeys agreed to sell the land to Jacobs was the best offer they had, after having the property on the market for several weeks, and it would appear from the evidence that said price was fair and reasonable and was the best price obtainable under the circumstances. The Forgeys acting for themselves with reference to the interest which they personally had in the land and as the agents for Mrs. Gilbirds, with reference to her interest therein, entered into the written contract of sale with respondent Jacobs. The terms of the contract with Jacobs definitely fixed the price and correctly described the land to be sold. Under those circumstances, a contractual relation arose which would give respondents the right to insist that Mrs. Gilbirds perform her written agreement to join in the conveyance. The rule is well settled that specific performance may be enforced either by or against an undisclosed principal when his duly authorized agent, in his own name, within the scope of his agency, contracts concerning the sale or purchase of the land. [Pomeroy on Contracts (2 Ed.), sec. 89, and notes; Kelly v. Thuey, 143 Mo. 422, l. c. 438; Randolph v. Wheeler, 182 Mo. 145, l. c. 154-155.]

In view of the above rule, the contention of appellant that Mrs. Gilbirds could not have enforced the contract against respondents, and that the relief sought must fail for lack of mutuality in the contract, cannot therefore be allowed.

The error of appellant’s contention that the contract is too indefinite, because it does not fix the price at which the land shall be sold, arises from the fact that she looks only at the clause of the contract of April 28th giving the agents the power to sell, instead of looking at the consummated act of her agents, the written contract with Jacobs, which* does definitely fix the price and terms of sale.

It is further contended that the contract should not be enforced because the Porgeys have not performed their part of the contract of April 28th. In this regard appellant contends that by said contract the Porgeys' obligated themselves to pay off the encumbrances out of their own means. This is based upon that clause of the contract which reads: “The said parties of the second part in consideration of the premises hereinafter mentioned agree to obligate themselves to pay off and discharge the remaining encumbrances against said land remaining after such transfers so mentioned shall have been made, under the conditions as hereinafter stated,” etc. The italicised portions of the above quotation clearly show that the obligation to pay was not from their individual resources, but on the other hand expressly refer to the terms of the contract “hereinafter mentioned” and under the “conditions hereinafter mentioned,” and it would indeed be a forced construction to give to said clause any greater effect than that they were bound to see that the moneys derived from the sale of portions of the land should be applied upon the encumbrances, or, at most, perhaps to obligate the Porgeys to prevent foreclosure of the property until sufficient of the land could be sold to satisfy the mortgages.

It is further contended that the power of sale in the Porgeys, if valid and binding, could only be exercisecl by botb of them acting together and that whereas Mr. Forgey acting alone made the contract with Jacobs, Mrs. Gilbircls did not become bound thereby. In this contention, appellant overlooks the important fact of the written ratification of the contract by Mrs. Forgey before this suit was instituted. By her written ratification of the contract, it became the joint action of herself and husband and leaves the contention without sufficient ground upon which to stand.

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur, except Far is, J., not sitting.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    MARY ALICE HEINBACH, Appellant, v. JESSE HEINBACH et al.
    Division Two,
    November 24, 1914.
    1. SUIT TO PROBATE WILL: Action at Law. An. action in the circuit court to probate in solemn form a will which has been rejected by the probate court is but a will contest, and is an action at law, and the appellate court will not interfere with the verdict of the jury on the ground that the preponderance of the evidence was that there was no unsoundness of mind producing testamentary incapacity, where there was substantial evidence that testator was of unsound mind.
    2. -:--: Substantial Testimony: Drunkenness. Where there is testimony that testator was an old man and for many years had been an extreme drunkard; two physicians say he died of alcoholic dementia, one of them that his condition of dementia must have extended back to a period of time before the will was made; certain statements made by testator indicate that they were either the idle vaporings of intoxication or the result of mental hallucinations, and one son is wholly unaccounted for; and, on the other hand, another physician, with opportunity to know, testifies that he was not afflicted with senile or alcoholie dementia, and nine lay witnesses positively testify that he was of sound mind, the question of his mental capacity to make a will is one for the jury; for the evidence being substantial, its very inconclusiveness requires the submission of that issue of fact to the triers of the fact, and their finding, if the instructions were proper and there was no error in the admission or rejection of evidence, is conclusive on the appellate court.
    3. -: Interest of Witness: Attorney: Contract of Employ'ment. The interest of any witness in the outcome of a suit may always be shown for the purpose of affecting the credibility of his testimony; but where the witness has admitted that he is an attorney in the case, and has been asked to assist in the trial by the attorney who has a contract of employment by some of contestants for a contingent interest in the property if the will is rejected, it is not prejudicial to the sole proponent to reject as evidence such contract, since it in nowise bears on the issue of testator’s incapacity and the interest of the witness is sufficiently shown.
    4. DEPOSITION: Absent from Record, The court will not hold that it was error to refuse the offer of a deposition in evidence if it has not been copied into the record.
    5. -: Copy. It is not error to refuse to permit a carbon copy of a deposition to be offered in evidence, if it shows unexplained interlineations, and there is no showing that the original has been lost and no inquiry has been made of the proper custodian, and no effort made to supply it in the way provided by statute.
    6. -: Identity of Deponent, If counsel on both sides and the court knew that deponent was too ill to appear at the trial and was the same person whom the carbon copy of the deposition indicates to be the deponent, and there was no objection to offering it in evidence on the ground of failure to identify, the refusal of the trial court to permit the carbon copy to be read in evidence on the sole ground of failure to identify could not be excused on appeal.
    7. -: Whereabouts of Deponent. Where the deposition shows that deponent resides in the county and within ten miles of the place of trial, it is necessary, as a condition precedent to the admission of the deposition in evidence, that the party' offering it show some one of the conditions prescribed by Sec. 6411, R. S. 1909.
    8. -: -: How Shown: By Subpoena. A subpoena properly issued by the clerk and a non est return thereon, are not alone a sufficient showing that a resident deponent who resides within the county is without the State or gone to a greater distance within the State than forty miles from the place of trial, and therefore to authorize the reading of her deposition in evidence.
    9. WILL CONTEST: Definition of Incapacity. An instruction which omits some of the elements of incapacity, and thereby prescribes less soundness of mind than the law requires, is not an error of which proponent can complain, since the error is one in her favor.
    10. --: Instructions: Comment on Evidence: Capacity to Make Contract. An instruction which picks out certain isolated acts of business transacted by testator and ignores others done wholly or partly by him, is an erroneous comment on the evidence. And an instruction that tells the jury that “notwithstanding he was able to transact some business, signing leases, giving checks and receipts, yet unless the jury find from the evidence he possessed a mind and memory sufficiently clear and unimpaired to take into consideration all his property,” etc., and ignores other business acts shown by the evidence to have been transacted by him during the time he is said to have been afflicted with senile and alcoholic dementia, such as the purchase of a house, the purchase of a piano on a contract of time-payment by installments, and the execution cf divers dramshop bonds, is such an instruction. Nor is it held that a specific mention of all these business acts would have cured the unwarranted mentioning of some of them. The effect of the instruction was to tell the jury that all these business acts went for naught in the scale of sanity, unless the jury went further and found that he' “possessed a mind and memory sufficiently clear and unimpaired to take into consideration all his property,” etc.; and in effect told the jury that though testator may have been mentally capable of making a contract, it did not follow that he was capable of making a will; and in a close case, is reversible error.
    11. -: Incapacity: Numerous Definitions. Numerous instructions defining testamentary incapacity should not be given. Different and dissimilar definitions are misleading.
    Appeal from Ralls Circuit Court. — Hon. William T. Ragland, Judge.
    Reversed and remanded.

      Charles E. Rendlen and Frederich W. Neeper for appellant.
    (1) It has uniformly been held by this court that it is its province to examine the record of the evidence in a will case to see if there is any substantial evidence to support the verdict or authorize the submission of the cause to the jury. Winn v. Grier, 217 Mo. 447; Archambault v. Blanchard, 198 Mo. 425; McFadin v. Catron, 138 Mo. 227; Hamon v. ITamon, 180 Mo. 685; Crossan v. Crossan, 169 Mo; 631. There is no substantial evidence in the record tending in the slightest degree to prove that Samuel Heinbach on Sept. 27, 1909, was not of sound mind and disposing memory. (2) It requires evidence of probative force that at the very time of the execution of the will, testator was not of sound mind and disposing memory. Winn v. Grier, 217 Mo. 450; Yon DeYeld v. Judy, 143 Mo. 363. (3) Facts which occurred at the time of execution of the will including its provisions speak for themselves and clearly show testator knew what he was about at the time, what property he owned, what disposition he desired to make of it, all persons who came within range of his bounty. This makes sufficient showing of qualifications of mind to make a will, and refutes contention that Heinbach was insane when he executed it. The face of the will shows competency. Crowson v. Crowson, 172 Mo. 700; Winn v. Grier, 217 Mo. 450; Wood v. Carpenter, 166 Mo. 487; Martin v. Bowdern, 158 Mo. 390. (4) The test of a testator’s competency to make a will is, that the testator understood the business about which he was engaged when he had his will prepared and executed, knew the persons who were the natural objects of his bounty, and understood his relations to them, and knew what property he had and the disposition he desired to make of it. This court has always been careful in preventing juries attempting to make wills for men. It has repeatedly set aside their verdicts. Measured by the following cases this will must be sustained; Yon DeYeld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630; Selir v. Linderman, 153 Mo. 276; Winn v. Grier, 217 Mo. 420; Jackson v. Hardin, 83 Mo. 175; Riley v. Sherwood, 144 Mo. 355; Riggin v. Westminster College, 160 Mo. 570; Couch v. Gentry, 113 Mo. 248; Wood v. Carpenter, 166 Mo. 487; Kirsch-man v. Scott, 166 Mo. 214; Crowson v. Crowson, 172 Mo. 691; Maddox v. Maddox, 114 Mo. 47; Hamon v. Hamon, 180 Mo. 685; Sayre v. Trustees, 192 Mo. 95; Archambault v. Blanchard, 198 Mo. 384; McEadin v. Catron, 120 Mo. 253; Hughes v. Rader, 160 Mo. 579. (5) A man may be capable of making a will and yet be incapable of making a contract or managing his estate. Maddox v. Maddox, 114 Mo. 35; Crowson v. Crowson, 172 Mo. 702. (6) (a) There is no substantial evidence in the record showing incapacity at the time the will was executed. There is conflict of ‘ ‘ opinions ’ ’ but the opinions of unsoundness were predicated on state of facts that do not show incompetency. The “opinions” amount to nothing and give no force to such facts. Winn v. Grier, 217 Mo. 449; Wood v. Carpenter, 166 Mo. 487; Crowson v. Crowson, 172 Mo. 700; Sehr v. Lindemarm, 153 Mo. 288. (b) The law requires something more than mere indefinite generalities to destroy or overbalance the presumption of sanity. McEadin v. Catron, 138 Mo. 197; Riggin v. Westminster College, 160 Mo. 570. (7) Testimony by subscribing witness against the validity of a will is looked on with suspicion. His testimony deserves to be discredited. Southworth v. Southworth, 173 Mo. 74; Hughes v. Rader, 183 Mo. 702; Mays v. Mays, 114 Mo. 541. (8) James O. Allison, and through him Jack Briscoe, had a direct pecuniary interest at the time in having the will denied probate, they had an interest in the devolution of the estate and in the probate of the will that determined the devolution of the estate. At common law under this contract as grantee therein he could contest the validity of the will and defeat plaintiff’s title. The exclusion of Allison’s contract for a six-tenths interest was prejudicial error. Watson v. Anderson, 146 Mo. 333; Sec. 555, R. S. 1909; Teckenbrocke v. MoLaughlin, 246 Mo. 719. (9) Instruction 3 given by the court at the request of respondents was erroneous. It in fact told the jury that even though testator was able to transact business of the character and the only kind in which he was engaged yet the jury might find testator incompetent. It commented on the evidence and denied probative force to the facts upon which any opinions worthy of consideration could be predicated; and the only proper criteria which the jury could properly consider in determining whether testator rationally acted. These facts were for the consideration of the jury alone with the other evidence, in determining the issue of fact; and the instruction attempts to prejudge these matters which, if taken out of the case, would leave the mere negative opinions of witnesses, not predicated on substantial facts, to determine their verdict. This instruction was calculated to mislead and unduly influence the jury. Benjamin v. Met. St. Ry., 50 Mo. App. 602; Drug Co. v. McMahan, 50 Mo. App. 18; Railroad v. Stock Yards, 120 Mo. 541; McFadin v. Catron, 120 Mo. 274.

      J. O. Allison, Jack Briscoe, H. Clay Heather and Charles I. Hays for respondents.
    (1) The real purpose of appellant’s contention that the court erred in excluding evidence of the contract of senior counsel for defendants pertaining to his contingent fee, will not escape the court. Such contentions are sometimes made before a jury, but rarely in an appellate'court. The counsel was not as-' serting any rights of his own and was not a party to the suit. Suffice it to say that the attorney’s contract could not have any relevancy to the issue of testator’s sanity. (2) Instruction 3 was not an adverse comment. Neither does it tell the jury what weight to give any of the evidence. Coats v. Lynch, 152 Mo. 161; Gordon v. Burris, 153 Mo. 223; Holton v. Cochran, 208 Mo. 418; Goodfellow v. Shannon, 197 Mo. 279. A similar instruction was before this court and was not criticised by court or counsel. Arehambault v. Blanchard, 198 Mo. 422; Holton v. Cochran, 208 Mo. 419; Tilbe v. Kamp, 154 Mo. 575. (3) (a) It may be conceded that it is the province of this court to examine the evidence to determine whether there is any substantial evidence to sustain the verdict, but not to weigh the evidence. That rule obtains in will contests as in all other cases at law. Bensberg v. Washington' University, 251 Mo. 641; Wendling v. Bowden, 252 Mo. 647; State ex rel. v. Guinotte, 156 Mo. 520. (b) The rule is that the burden is upon the proponents of the will to show that the testator was of sound mind, and such proof is a requisite of their prima-facie case, although, it seems, they may be aided by proof introduced by contestants. Bensberg v. Washington University, 251 Mo. 641. (c) The facts showed neither testamentary purpose nor capacity, and, with the inequality mentioned,'must-impress the just mind with a conviction against the will. Wendling v. Bowden, 252 Mo. 688; Hardy v. Sullens, 46 Mo. 152; Meier v. Buchter, 197 Mo. 86; Mowry v. Norman, 223 Mo. 463; Bensberg v. Washington University, 251 Mo. 654. (d) With respect to appellant’s point wherein she would discredit the testimony of the subscribing witnesses, it is to be noted that they were plaintiff’s witnesses. The facts here are entirely different from those in the cases cited by appellant, particularly Hughes v. Eader, 183 Mo. 700. (4) This will contest is a law case and the verdict of the jury, being based upon substantial evidence, must stand. The evidence is not only substantial but well nigh conclusive against the will. The testator was a confirmed drunkard for more than twenty-five years of the latter end of his life. For several years during the close of his life he suffered from alcoholic dementia and finally died of that disease. The disease was progressive in its nature and effects, the testator was possessed of hallucinations and delusions. His body was enfeebled and his mind practically gone when he attempted to make the will. Pie had, several years before, given up attending to his business. He realized and expressed his inability to. look after his business affairs. He had become oblivious to obligations of morals and of blood. His alleged will was unreasonable, unequal, unfair and unjust iñrits provisions. Buford v. Gruber, 223 Mo. 231; Crum v. Crum, 231 Mo. 626; Bensberg v. Washington U., 251 Mo. 647; Knapp v. Trust Co., 199 Mo. 640; Cowan v. Shaver, 197 Mo. 203; Mowry v. Norman, 223 Mo. 463; Meier v. Buchter, 197 Mo. 68; Plolton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 680; Benoist v. Murrin, 58 Mo. 307; Hardy v. Sullens, 46 Mo. 147.
   FARIS, J.

This is a procéeding under the statute to probate, in solemn form, the will of one Samuel Heinbach, deceased. The plaintiff is the widow and (except for merely nominal bequests to decedent’s three children) the sole devisee under the alleged will. The defendants Jesse Heinbach, Naomi Summers and Edith Britton are the children and heirs at law of deceased, and William P. True is the administrator of the estate of deceased.

Samuel Heinbach made the alleged will in controversy on September 27,1909, and died in Ralls county, Missouri, on January 3,1910. When the paper writing in controversy (hereinafter for brevity we beg the question and call said paper a will, and designate Samuel Heinbach as the testator) was presented to the judge of the Ralls County Probate Court, it was rejected and probate thereof refused. Thereupon the plaintiff brought this action in the circuit court of said county, and being cast therein, appealed to this court.

The petition was in the usual form; no point turns either upon its form or contents; so we need not cumber the record with it.

The answer, after admitting the formal allegations of heirship of defendants, the death of testator, the rejection of the will by the probate court, and the appointment of defendant True as administrator, averred as affirmative defenses, lack of testamentary capacity in testator, arising from an unsound mind, superinduced by old age and the excessive use of intoxicants, and that the said will was the result of undue influence exerted upon testator’s mind in its alleged weakened state. But there was no sufficient proof adduced upon the latter point, so the learned judge nisi properly took this phase of the case from the jury, and thus it falls out of the case.

In the view which we are forced to take of the case, it will not become necessary to set out in detail the facts shown by the testimony of each of the several witnesses. The record is voluminous, containing as it does, over six hundred pages, and so we shall here content us with a sort of shorthand sketch of the salient facts in the case.

Samuel Heinbach, the testator, was a native of Indiana, where he married in 1872. Nine years later he abandoned his wife and children, of the latter of whom there seems then to have been two living, and came to Pike county, Illinois. Here at a point on the Mississippi River, about opposite the present village of Basco, he located himself and began to cut cordwood and do other work in the timber for a livelihood. One period of reconciliation with his first wife and family is shown, but whether this occurred within the nine years prior to 1881 or subsequent thereto and between the latter date and 1885, is dark and obscure in the record. There are both evidence and inferences in the record supporting either view. 'Likewise, it may be said in passing, there is some vague but hardly credible support for the view that his wife and family deserted him. But neither point is directly in issue or necessary to be Rifled on. We but refer to it in fairness.

When the final separation occurred (the date whereof is upon the .whole record exceedingly obscure), testator returned to the eastern banks of the Mississippi River, leaving his wife and young family in an indigent and poverty-stricken condition, and again took up his labors as a wood-chopper and a worker in the forests. For many years he lived with one Theodore Johnson and kept “batch,” as the witnesses express it in the vernacular. About 1888 testator moved across the Mississippi River to a point in Ralls county some three miles south of Hannibal, Missouri. There he and Johnson had purchased together as tenants in common a tract of land containing some fifty-two acres. Johnson married about 1887 and went to live on this land, and verbal partition (subsequently consummated by mutual conveyances before this cause of action arose) between him and testator of this land seems to have been had, after which testator lived alone on his twenty-six-acre tract, subsisting by the cultivation of his land as a truck-farm and the sale, of vegetables and produce therefrom.

In 1901 a large factory for the manufacture of Portland cement was constructed on a'tract of 1800 acres of land near, or immediately adjacent to, the said land of testator. Testators’ land thereupon came into demand as building sites for the houses of employees at this cement factory, and for sites for shops and store's, so that a small village, called Ilasco, grew up thereon. This land is the bone of contention here, forming as it does practically the whole estate of testator.

When testator and Johnson purchased the land in 1887, they paid only some ten dollars per acre for it, but when this case was tried the value of testator’s part of it was laid at from $12,000 to $15,000.

Shortly after the construction of the cement factory testator began to lease building lots (pursuant to a rough plat made by Jack Briscoe, then his agent, now of counsel for defendants)- on the basis, as a rule, of what the witnesses style “ground-rent” of one dollar per lot per month. There were something over a hundred of these leased lots (to be exact, 106) held by testator’s tenants upon leases- running from their several dates for ten, fifteen, twenty and twenty-five years, the ground-rent from which had for several years been bringing testator an annual gross income of from $1065 to $1120.

From about the middle of September, 1905, down to the date of. testator’s death, he had an agent (at first, and from September or October, 1905, to October, 1906, said Briscoe, and thereafter till his death, one H. F. Fleurdelis), who collected his rents and for the most part prepared his leases and receipts, or, to be more exact, filled in the blanks therein, as both the receipts and the leases (for the major part) were upon printed blanks. But seven out of some fifty-six leases are shown by the proof as having been made prior to October, 1906, and presumably therefore by testator himself. In 1906 the latter procured by default a divorce from his first wife on the ground of desertion. This wife had then ten years before remarried, apparently without the prior formality of procuring a divorce from testator.

Testator, as far back as the witnesses are able to recall, was intemperate, and this -condition grew on him with the years and after dramshops became plentiful and liquor more convenient at Ilasco. Touching the fact of his excessive use of strong drink the witnesses are practically unanimous, differing for the most part only in the degree of sottishness which they attribute to him. Some of them say that in thirty years’ acquaintance with him they never saw him wholly from under the influence of intoxicants; still others say that he was the worst drunkard they had ever known; others yet, on the contrary, say they have sometimes seen him sober, once for a period of two weeks, continuously. Two physicians, one of them his family physician, say that he died of alcoholic dementia. One of these, testifying largely from the history of his case and partially hypothetically, says that this condition of dementia must have existed for as much as a year before his death, and it therefore included the time at which the will was made. Per contra, another physician, who had formerly likewise long been his physician, and with opportunities equal to any other witness in the case to know and observe his condition, swears that he was not a senile or alcoholic dement, but was of sound mind.

Nine lay witnesses swear positively that testator was sane; while five for the defendants are equally positive that he was not of sound mind. ' Some, at least of the latter, had reasons fairly well founded for the opinions they expressed.

Plaintiff prior to her marriage to testator was a widow of mature age; the relict of one Scott, sometime recorder- of Pike county. Her marriage to testator was but'a little over nine months old when the will was made and but a year had elapsed when testator departed this life.

The charge of undue influence properly fell out of the case for lack of proof to sustain it and we need not follow it further. Plaintiff, it may be said in passing, was, so far as the record before us shows, uniformly kind and attentive to testator, omitting for his care and comfort no wifely duty, though his filthy drunken condition often rendered the performance of these duties peculiarly onerous and revolting. Testator, as the proofs shows, fully appreciated plaintiff’s care and attention, and spoke of her uniformly with much love and kindness.

Testator talked loosely, possibly drunkenly, of the condition and financial states of his children. Many things he said of them as to their station in life and their comfortable situations were apparently false; but whether these statements were but the drunken, idle vaporings of intoxication, or whether they were the results of mental hallucinations, is utterly dark from the record. His son Jesse is wholly unaccounted for and whether, except for the purposes of this particular action, he be living’ or dead, we cannot ascertain from this record, though the showing is made that he had been absent, unheard of, for nineteen years when the case was tried. It is of sentimental value only and in nowise pertinent to or decisive of the legal questions herein involved that testator’s children, the defendants here, made no greater effort to find him (till he was dead) and aid and comfort him than he, on his part, made to find and assist them. Any, the least, effort on either side would indubitably have resulted in discovering the whereabouts of the other side.

Upon the trial of the case the court gave, among other instructions asked by defendants, this one, to-wit:

“Notwithstanding the jury may believe from the evidence that Samuel Heinbach was able to transact some business, signing leases, giving checks, receipts, yet unless the jury believe and find from the evidence that at the time of the execution of said alleged will, said Samuel Heinbach possessed a mind and memory sufficiently dear and unimp air ed to take into consideration all his property, and the persons who had a natural and reasonable claim on his bounty, if any, and the disposition he desired .to make of his property, then he did not have sufficient capacity to make a will and the verdict of the jury must be against said will. ’ ’

The jury by their verdict found that the paper writing in controversy was not the last will of decedent and plaintiff has appealed in due form.

Other facts, if such shall become necessary, will be found set forth in the opinion.

I.- Counsel for plaintiff in the assignment of errors in their brief set out thirteen different reasons why the judgment below should be reversed. Coming to a critical examination of them we conclude that in all fairness and clarity these alleged errors may all be considered under four heads; more especially so since, for what seems to us fatal error, we are forced to reverse and remand the case. So, we shall discuss these assignments under four heads, which include all points briefed.

The.first contention made is, that there is no sufficient evidence of unsounctness of mind producing testamentary incapacity to take the case to the jury. We will consider briefly whether this is so. The rule is now well and abundantly settled that a will contest (and this action though technically an action under our statute to probate a rejected will in sol-

emn form, is yet in the last analysis but a will contest) is an action at law and the rule that as an appellate court we may not interfere where there is substantial evidence to sustain the verdict of the triers of fact, prevails and concludes us. [Roberts v. Bartlett, 190 Mo. l. c. 695; McFadin v. Catron, 138 Mo. l. c. 227; Naylor v. McRuer, 248 Mo. l. c. 458; Hill v. Boyd, 199 Mo. l. c. 448; Turner v. Anderson, 236 Mo. 523; Knapp v. Trust Co., 199 Mo. l. c. 663.]

In the case of Naylor v. McRuer, supra, Division Two of this court, quoting largely from Roberts v. Bartlett, supra, said:

“As a court of errors in a case of law, as a contest of a will case under our statute is, we are not required to pass upon the credibility of the witnesses and the weight of the evidence, if the evidence be substantial; these considerations are relegated to the triers of fact.
“This doctrine is said in Roberts v. Bartlett, 190 Mo. l. c. 695, to be well settled in this State. In this behalf the language of Gantt, J., in the case above cited, is pertinent: ‘The rule of practice is well settled in this State, that a will contest is an action at law, and this court will not reverse the judgment because the jury found against the weight of the evidence, but that this court will examine the record to see if there is any testimony to support the finding, and where there is no evidence whereon to base the verdict, the judgment will be reversed. [State ex rel. v. Guinotte, 156 Mo. l. c. 520, 521; McFadin v. Catron, 138 Mo. 227.]’ ”

"When we have recourse to this rule in the instant case we see that there was adduced substantial evidence of testator’s testamentary incapacity. We have in the statement of the case briefly referred to the number of witnesses who testified for and against his sanity, and also briefly to the general trend of their testimony. The learned court nisi was right in taking from the jury the issue of undue influence, and he was also right in refusing to take from the jury the question of testamentary capacity. Since the case, however, must be reversed and remanded for other reasons below set out, we will not here cumber the books or hamper a retrial with a resume of the evidence. Suffice it to say, that while the testimony in our view was by no means conclusive or satisfying on the question of the soundness or unsoundness of testator’s mind, it yet being substantial, and partially by reason of this very inconclusiveness, made out a case to be resolved upon proper instructions by the triers of fact alone. We disallow this point then, and say that if upon another trial the testimony as to lack of mental capacity to make a will shall prove as strong as that in the record before us, the case should be left to the jury upon this question.

II. Counsel for plaintiff made most strenuous efforts to put in evidence the written contracts of employment made between defendants Edith Britton and Naomi Summers of the one part and one of defendants’ counsel upon the other. The court below refused to allow these contracts of retainer to go to the jury, upon the theory, it may be, that however much light these instruments might or might not throw upon the defendants’ state of mind, they were of no probative weight in determining whether testator was sane or insane at the time he made the will in controversy.

It is urged by plaintiff’s learned counsel that these contracts ought to have been admitted in evidence for the reason that Mr. Jack Briscoe, one of the attorneys for defendants, was a witness in the case, and since his testimony shows that his services were procured by Mr. J. O. Allison, also of counsel, and the one with whom the contracts were made, the contents of these contracts would thus show the interest of the witness Briscoe in the result of the action.

The record shows that Mr. Briscoe had no contract based upon the contingency of recovery. In fact, he denied having any contract with anyone, but testified he was assisting as counsel because Mr. J. O. Allison told him he wanted him (Briscoe) to assist in the matter. Previous to the answer of Briscoe last above, he had answered, when inquiry was made as to whether he had any interest in the controversy, that he was “an attorney in. the case.” It is too plain for discussion that the contents of the contracts offered could throw no light upon the issue before the court. This issue was devisavit vel non and it turned wholly upon the mental condition of testator on the 27th day of September, 1909. The contracts were not made till January, 1910. Likewise in the light of the facts as shown by the testimony of Mr. Briscoe, since (he says and it is not denied) he had no contingent contract with either the defendants or Mr. Allison, but was merely in the case because Mr. Allison had asked him to assist in the matter (inferably, upon an implied agreement that Allison should requite him upon quantum merwt), how could the contents of the contracts of defendants with Mr. Allison, whether the same were fair or unconscionable, affect the testimony of Briscoe? He had already said in effect that he was an interested witness, because he had admitted he was an attorney in the case. Without his admitting interest the jury would have known he was an interested witness from the observed fact that he was of counsel. Conceding that as a general rule the interest of any given witness in the outcome of a case, or the bias or prejudice of such witness for or against either party litigant, may always be shown for the purpose of affecting the credibility of. such witness (3 Chamberlayne on Ev., sec. 1785; State v. Miles, 199 Mo. l. c. 546), it is yet fairly clear that under the facts here the rejected evidence was at most cumulative upon the point of the interest, in the case of Briscoe who, electing to become a witness as well as counsel, admitted an interest in the result of the case, which interest the jury would have noticed without his admission. The contents of these contracts had no other relevancy to this case outside of the exceedingly dim light they cast in a far-fetched way upon Briscoe’s admitted interest herein. Since this interest was frankly admitted and since, even if it had been denied, the jury doubtless.would have observed it, and known of it, and weighed it, nevertheless, and since it is not only good business but good human nature for a lawyer to feel an interest in the result of the cases in • which he or she is counsel, we are not disposed to say that the court erred in refusing to permit these contracts to be offered in evidence. So far as we are able to see the only effect of the contents of these contracts bipon the jury would have been to bias their judgment by prejudicial means. In passing, and looking by and large to the whole record in this case, we are constrained to say that had half as much effort been made upon the trial to frankly develop the actual facts as was made to inject hurtful prejudice into the minds of the jury, we might possibly have been able to ascertain' from the record the real condition of the testator’s mind and so might, perhaps, have been able to obviate a reversal of the case. As the record is we cannot conclude either way, and must needs reverse for error.

III. It is contended by plaintiff that the court should have permitted plaintiff to offer the copy of the deposition of one Mrs. Mary Smashey, since the record discloses that the witness Neil Smashey testified that his wife Mary was ill, under the care of a physician and unable to appear personally and testify. "When learned counse? for plaintiff offered to read an alleged carbon copy of Mrs. Smashey’s deposition he did not identify her as being the Mary Smashey who, the proof showed, was too ill to appear. But as this from the whole record clearly was known both to counsel on both sides and to the court and as no objection to the offering was made for failure to show identity, we would not be able to excuse the trial court’s action on this ground alone. But since counsel have not seen fit to copy the refused deposition into the record, we are unable to say whether the refusal to admit it was error or not. We are not permitted to assume the existence of reversible error from the mere allegation of its existence; the law is •that hé who alleges error must prove error. Besides (and on this ground the action of the court nisi was entirely right), the record shows that counsel for plaintiff merely made profert of an alleged carbon copy of Mrs. Smashey’s deposition, saying, in so offering such copy, that he was unable to find the original. Counsel for defendants objected to the offering of-the copy of this deposition. Plaintiff’s counsel expressed himself as being unable to state whether certain interlineations which he stated he found upon the carbon copy had been made thereon by the witness, or made before the witness Mrs. Smashey signed this copy. Since there is no showing that the original deposition was lost, no inquiry having been made of the proper custodian thereof, and since no effort was made to'supply this document as provided by statute (pretermitting the weightier and sufficient objection that this deposition is absent from the record), we hold that the court below was right in refusing to allow the alleged copy of the deposition to be offered.

Likewise, plaintiff contends that the court erred in refusing to admit in evidence the deposition of Mrs. Ola Gregory. In this the court was also right. No showing was made as to the whereabouts of Mrs. Gregory at the time her deposition was offered. Pier deposition shows that she resided at Ilasco, which place the record abundantly shows is in Ralls county and only some ten miles or less distant from New London where the trial' occurred. This being so, it was incumbent on plaintiff, as a condition precedent to the admission of this deposition, to first show some one of the conditions under which section 6411, Revised Statutes 1909, permits a deposition to be offered. This plaintiff did not do.

Some controversy arose as to an alleged non est return upon a subpoena for this witness. But neither such subpoena nor the sheriff’s return thereon was offered. While under the statute we scarcely see the pertinency of this controversy, since it turned upon the question of whether a non est return (which was not offered) upon a subpoena (likewise not offered), the body of which may or may not have been written by counsel, but which was signed and sealed by the clerk (or his deputy), is a sufficient showing under section 6411, supra, to admit a deposition to be read without further proof of the absence of a resident witness from the State. We fail to see how it would be, or how the return on any subpoena, however written or issued, would of itself alone be a sufficient showing under our statute. Here it was incumbent upon plaintiff as a condition precedent to the offering of the deposition of this resident witness, to show either that the witness was without the State, or, being within the State, that she had gone to a greater distance tiran forty miles from the place of trial, without the consent, connivance or collusion of plaintiff.

IY. The serious question in the case is the contention that instruction numbered three is erroneous. This instruction we set out verbatim in the statement of the case.

Appellant contends that said instruction three is a comment on the evidence and that it presents an erroneous definition of testamentary capacity. Taking the last objection first, and pretermitting for £he moment the question of the alleged comment on the evidence, if any, in this instruction, as well as the question of how far such comment serves to render bad the attempted definition, we conclude that even if the definition of the sufficiency of the soundness of mind which is meet for will-making, falls short of that given in the books, yet plaintiff was not hurt by it. The lack of sufficiency of definition was here in her favor. Testator, even if we concede all that plaintiff says of it, was by this instruction allowed to make a will though his mind lacked some of the elements of soundness — some of the tests prescribed in the adjudged cases. [Turner v. Anderson, 236 Mo. l. c. 544; Crum v. Crum, 231 Mo. l. c. 638; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. l. c. 699; Naylor v. McRuer, 248 Mo. l. c. 462.] So, if the test of mental capacity as prescribed by this instruction fell so far short of being correct as to be erroneous, the error was clearly one in plaintiff’s favor and she is in no position to complain. [Naylor v. McRuer, 248 Mo. l. c. 463.] She was upholding the will. If the instruction permitted testator to make a valid will while possessing less soundness of mind than the law allowed, plaintiff was not hurt and so she may not complain. This is what we said in the case of Naylor v. McRuer, supra, while there approving the definition of mental capacity commensurate with testamentary capacity at set out in Turner v. Anderson, 236 Mo. l. c. 544. So much for the criticism of the definition of testamentary capacity as found in said instruction three.

But the point that this instruction is a comment upon the evidence, we think is well taken. Besides, two other criticisms may well he lodged against it. It picks out.but three isolated items of business shown by the proof to have been transacted by testator and ignores other contracts made largely or wholly by him, to-wit, the purchase of a house and lot from Dr. Tutt, and the purchase of a piano on a contract' of time-payment by installments, as also other business papers executed, to-wit, divers dramshop bonds. All these.things are shown by the proof to have been done by testator within the period during which Dr. Detweiler says he was a senile dement. We are not holding that such specific mention of all of the business, acts of testator would have cured this instruction. We may he permitted to doubt this. This fact„d°es> however, lend much color to the charge that the instruction comments upon the evidence.

Its effect is to utterly destroy with the jury whatever probative force exists in favor of sanity, and arising from the proven facts that testator did the several acts and items of business which we mention and also those which the instruction recites. Plaintiff was entitled to the full benefit of this proof. But this instruction says to the jury that even though testator was able to transact the business mentioned, all these acts went for naught in the scale of sanity, unless the jury went further and found that he “possessed a mind and memory sufficiently clear and unimpaired to take into consideration all his property, and the persons who had a natural and reasonable claim on his bounty, if any, and the disposition he desired to make of his ■ property.” Both the letter and the spirit of this instruction are opposed to the well-settled rule of law in this State that a man may be mentally capable of making a will when he is mentally incapable to make a contract. [Brinkman v. Rueggesick, 71 Mo. 553; Crossan v. Crossan, 169 Mo. 640; Giboney v. Foster, 230 Mo. l. c. 134; Knapp v. Trust Co., 199 Mo. l. c. 663; Roberts v. Bartlett, 190 Mo. l. c. 696; Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. l. c. 702.] This instruction tells the jury in effect that though the testator might have been mentally capable of making a contract it did not follow that he was mentally capable of making a will It may not have followed in truth, either as a medical of a legal corollary, but plaintiff in so doubtful and dark a ease as this was entitled to have the jury consider all of the acts of business testator did in connection with all other facts and circumstances of the case in order to throw light upon the questions of whether when he made his will be understood he was doing so; whether he understood the nature and extent of his property; whether he knew all persons who reasonably came within his bounty and who were the natural objects thereof; whether lie understood to whom he desired to give his property and to whom he was giving it and whether he was able without the aid of others to retain these facts in mind long enough to make Ms will.

We feel no manner of doubt as to the error in this instruction and need not pursue this inquiry further. The case of Archambault v. Blanchard, 198 Mo. l. c. 422, where, we are told an almost identical instruction was given, is called to our attention. We find that such an instruction practically identical with this one was given in the above case and that neither counsel' nor this court criticised it. But even a casual reading of that case shows that this instruction (numbered 8, and appearing on page 422 of the reported.case) was never approved either expressly or impliedly; for after the instructions were set out in the statement of the ease, none of them was ever afterwards mentioned in the opinion, and the case was reversed and remanded with directions to probate the will, because there was not sufficient evidence to take the case to the jury. It therefore never became necessary to mention this instruction. But it is peculiarly unfortunate that this instruction should have been set out in the statement of the Archambault case, as the doing so may well have misled, as it undoubtedly did here mislead, both counsel for defendants and the learned trial court in this case.

Since for this error this case must be retried, we may here say that instruction two for defendants seems, a correct and fair statement of the law. [Turner v. Anderson, 236 Mo. l. c. 544; Naylor v. McRuer, 248 Mo. l. c. 462; Crum v. Crum, 231 Mo. l. c. 638; Holton v. Cochran, 208 Mo. l. c. 410; Goodfellow v. Shannon, 197 Mo. l. c. 280; Knapp v. Trust Co., 199 Mo. l. c. 663; Hamon v. Hamon, 180 Mo. l. c. 701; Current v. Current, 244 Mo. l. c. 437; Farmer v. Farmer, 129 Mo. l. c. 538.] We see no reason for defendants asking three instructions, however, each defining testamentary capacity, in different terms. If it should become necessary, and counsel are so advised, to refer more than once to the definition of testamentary capacity, it would simplify matters to refer aptly to the definition already given. However, if such reference does not suffice, at least three dissimilar, and therefore, to an extent misleading definitions, should not be given. One should be selected and adhered to.

For the reasons set out the case should be reversed and remanded, to be retried in accordance with these views. Let this be done.

Walker, P. J., and Brown, J., concur.