author: LAMM, J.

text:
    DESLOGE et al. v. TUCKER, Administrator, Appellant.
    Division One,
    May 30, 1906.
    1. ADMINISTRATION: Notice to Sell Real Estate: Hand Bills: Resident Legatee: Meaning of Devisee. The statute (sec. 148, R. S. 1899) requiring that, when a petition is lodged in the probate court praying for the sale of real estate, “all persons interested in the estate he notified thereof,” and providing that said notice may he hy puhlication in a newspaper or ten hand-hills put up in the county, except “that, in all cases where the h.eirs or devisees of deceased are resident of the county where such, administration is had, there shall he personal service oL' the notice on such heirs or devisees,” does not require the notice to be personally served on a mere resident legatee, where none of the devisees or heirs reside in the county. An heir is one on whom the law casts an estate upon the death of an ancestor. A devisee is one getting real estate by will, and the word “devisees” in this statute is used in its common law meaning. A legatee is a person to whom a legacy is given, and a legacy is a bequest or gift of personal property by will. So that where notice was by hand bills only, and all the heirs ¡mentioned in the will resided out of the county, and only one legatee, to whom the will left $500, resided in the county and who was not served w'ith personal notice, the probate court was not’ without jurisdiction to order a sale of the testator’s real estate to pay the legacies and debts.
    2. -: -: -: Non-Residence: Not Apparent on Face. It will not be held, in a direct proceeding, that the probate court was without jurisdiction to order the sale of the decedent’s real estate, after notice by ten hand-bills put up at ton public places in the county, where it does not appear, in any of the court proceedings or the officer's return, that the parties interested were not residents of the county. Where the publication was proper, if personal service was also necessary that fact should appear from the proceeding, or at least from the proof, and if it does not so appear, jurisdiction will be sustained.
    3. -: -: Appeal: Jurisdiction. An appeal lies from an order confirming a sale of real estate by the administrator. And on such an appeal the jurisdiction of the probate court may be challenged in the circuit court.
    4. -: Sale of Real Estate: Approval. A sale of real estate by the administrator (and that includes a contract of sale) has no life or legal validity until approved by the court.
    5. -: -: : Fairness. The paramount duty of the probate court in the first instance, and of the circuit court on appeal and of the appellate court, is to see that the sale of decedent’s real estate was a fair sale, fairly made.
    6. —:-: -: Half Its Value. The administrator entered into a contract to sell for $10,000 land which had been appraised at $5,000, and the prospective purchaser paid down $50, and agreed to pay the balance "as soon as the further and necessary orders of the probate court can be made and the defects in the title perfected.” Afterwards and before' the sale ' was approved, the legatees under decedent’s will offered the administrator $18,000. The prospective purchaser, shortly after he bargained for the land and before the sale was approved, bargained to resell it to a lead company for $20,000. The administrator was guilty of no fraud, but was not diligent in trying to find purchasers, for instance, the lead company. The probate court approved the sale, and on appeal by the legatees the circuit court disaffirmed the sale. Held, that the circuit court did not abuse its discretion in so doing, and the sale should not be approved.
    7. -: -: Disapproving Sale. It is a sufficient reason for disapproving a sale by an administrator that the real estate was unnecessarily sacrificed.
    8. -: -: Inadequacy of Price. A sale by an administrator is not a judicial sale until it is confirmed and a deed made. Until then the rule that mere inadequacy of price will not avail to avoid a judicial sale, does not apply.
    Appeal from St. - Francois Circuit Court.—Hon. Robert A. Anthony, Judge.
    Affirmed.

      Politte Elvins, M. R. Smith and Ear clay, Shields & Fauntleroy for appellant.
    (1) The fact that a legatee was not served with personal notice of the presentation of the petition for an order for sale is no irregularity under the statute and can not in any way prevent the approval of the sale. R. S. 1899, see. 148. The statute indicates, by its proviso, that only heirs and devisees of the deceased party are within its terms. Only to them is it necessary to give notice, and to them such notice was given, as the record shows. (2) The real estate of a deceased person descends to his heirs, or passes to the devisees under his will. Aubuchon v. Lory, 23 Mo. 99; Chambers’ Adm’r v. Wright’s Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 239. (3) The fact that section 278 (R. S. 1899) confers on “a creditor and legatee and other persons having an interest on the estate” the right of appeal, does not indicate that a legatee should have notice of an application to sell land. If it did, a creditor should also have notice, because a creditor can appeal. (4) £ £ Mere inadequacy of price is insufficient to set aside a judicial sale. There must be some fraud in the transaction as a general rule, where the sale is open and no improper practices are shown on the part of the purchaser, unless the inadequacy is so gross as per se to amount to prove fraud.” Phillips v. Stewart, 59 Mo. 491; Walters v. Herman, 99 Mo. 529; Briant v. Jackson, 99 Mo. 585; Wagner v. Phillips, 51 Mo. 117; Railroad v. Brown, 43 Mo. 294. Or it “must be so inadquate as to shock the moral sense and outrage the conscience. ” Davis v. Mc-Cann, 143 Mo. 172. We make this point simply because appellants allege inadequacy of consideration. There is no inadequacy of price— the land sold for all it is worth — and there is not the slightest taint of fraud in the whole transaction, or any evidence thereof. (5) The policy of the law is opposed to setting aside judicial sales of real estate. State ex rel. v. Sargent, 12 Mo. App. 237; Stewart v. Severance, 43 Mo. 322, 47 Mo. 366; Ex parte Cubbage v. Franklin, 62 Mo. 364; Lovitt v. Russell, 138 Mo. 474. (6) After the sale the whole matter remains in fieri, under the control of the court, until confirmation, but the court' should confirm if the sale was fair. In confirming a sale courts decide on its. legality. 12 Am. and Eng. Ency. Law (1 Ed.), 219; Herman on Executions, sec. 261; Brown’s Appeal, 58 Pa. St. 53; Mitchell v. Harris, 43 Miss. 314. While the matter of confirmation rests largely in the discretion of the court, that discretion is not absolute, and where the sale is fairly made, it is not a wise discretion to set it aside. Henderson v. Herrod, 23 Miss. 434; Sowards v. Prichett, 37 111. 517; 2 Jones on Mortgages, sec. 1638; Wells v. Rice, 34 Ark. 346. (7) The confirmation of a sale rests in the sound discretion of the court on consideration of all the attending facts and circumstances, and in the exercise of this discretion the court should not confirm the sale if in its opinion the sale was not fair or was not made in conformity with the law, but if for a fair price and in conformity to law, the sale should be confirmed. 11 Am. and Eng. Ency. Law (2 Ed.), 1112,1113; Bland v. Bowie, 53 Ala. 152; Eatman v. Eat-man, 83 Ala. 478; Davis v. Stewart, 4 Tes. 223.

      Geo. D. Reynolds and George V. Reynolds for respondents.
    (1) Appellant having admitted that the whole matter of confirming or approving the sale is triable de novo, and yet remains under the control of this honorable court, and largely in the sound discretion of the court, we submit that the same doctrine applying to the circuit court, its finding and determination of the facts is conclusive and will not be disturbed by this court. (2) . The order of sale and due service thereof is jurisdictional. The order in this case should, but does not show affirmatively that the heirs and devisees' are nonresident of the county. In so failing, jurisdiction falls. If not good as to one, it falls as to all. Cunningham v. Anderson, 107 Mo. 371; Hutchinson v. Shelly, 133 Mo. 412; Young v. Downey, 145 Mo. 250; William v. Monroe, 125 Mo. 574; Lang v. Garbee, 105 Mo. 355; Cloud v. Inh. of Pierce City, 86 Mo. 365. (3) The right of appeal is to “any heir, devisee, legatee, creditor or other person having an interest.” R. S. 1899? sec. 278. The objecting legatees are substantially the only “creditors” of the estate, and they are all the legatees — and all of them objected and now object to the confirmation of the sale. 2 Woerner, Am. Admr., sec. 467; Ferguson v. Carson, 86 Mo. 673. (4) This right of appeal lies on approval of a sale of real estate. McVey v. McVey, 51 Mo. 420; Wilson v. Brown, 21 Mo. 410; Wolff v. Wohlien, 32 Mo. 132. Section 278, Revised Statutes 1899, removes the difficulty pointed out in McVey v. Mcvey, supra. See also sec. 285, R. S. 1899; Coleman v. Farrar, 112 Mo. 82. (5) The administrator charged with the high duty of looking after the interests of the estate will not be allowed to sacrifice them; he is held to the strictest discharge of his trust, as fully as is a trustee. 1 Woerner, Am. Admr., sec. 11; 2 Ibid, sec. 463; 2 Ibid, pp. 1060 and 1061; Yail v. Jacobs, 62 Mo. 130; Hardware Co. v. Brownlee, 186 Mo. 628. (6) The bargainor with the administrator acquired no title. 2 Woerner, sec. 478. He did not even pay the price —■ and he acquired no right. In re Estate of Albert, 80 Mo. App. 557. (7) This is not a proceeding to set aside a sale, as counsel for appellant argues and seems to think, hut is a proceeding to disapprove the action of an administrator, which action does not become of any validity unless approved by the court. The cases cited by appellant’s counsel all apply to consummated sales and are not applicable to this case.
   LAMM, J.

—This is an appeal by E. C. Tucker, administrator cum testamento amiexo of the estate of John M. Desloge, deceased, from a judgment of the circuit court of St. Francois county disapproving a report of sale of real estate — said report having been confirmed in the probate court and certain heirs and devisees having appealed from that order to the said circuit court.

The terms of the will of John M. Desloge are pertinent to certain contentions made here, and the will, moreover, is curious — testament, attesting clause, the personality and identity of the scrivener (a medical man), together with a solemn perpetuation of his surviees, as such, being accomplished by a single stroke and certified by testator himself. The will reads:

“Battle Creek Sanitarium, Battle Creek, Mich,
“Aug. 29,1900.
“I hereby put my hand and seal to this instrument as being my desire of the disposition of my property, amount to about twenty-five or thirty thousand dollars ($25,000 or $30,000). Being in my right mind and in the faith, property to be disposed of as follows:
“Mrs. Jane Pullis, Jules Desloge, Sophia Desloge, Clara D. Pike, share in and alike four thousand dollars ($4,000) apiece; children of Louise Jamison share in and alike fifteen hundred dollars ($1,500); Mrs. L. M. Valle, Josephine Fuse, Firmin Desloge, Zoe D. Cobh, share in and alike, one hundred dollars ($100) apiece; to Miss Louis Pierce five hundred dollars ($5.00); to charity five hundred dollars, to be distributed according to the desire of my legal heirs. This disposition of property to be made after all legal and just debts against the same are settled'.
“I, as the attending physician of Mr. J. M. Desloge for the past four weeks, can state that he has transacted all of his own business and is of a sound mind, and I and the two following gentlemen were present when J. M. Desloge made his desire known as to the disposition of his property, and do hereby testify by placing our names to this document; that in our hearing he made these statements which were written and then, after reading he stated it was correct, and signed the same in our sight.
“Jno. M. Desloge.
“H. P. Eand, M. D.
“John Glade.
*1Vahan Pampian. ’ ’
The learned trial judge, the Honorable Eobert A. Anthony, made a written finding of facts and delivered an opinion, which finding of facts is fully sustained by the record and is, therefore, adopted as far as it goes. His finding reads:
“E. C. Tucker, as the administrator of the estate of John M. Desloge, deceased, presented his petition to the probate court of St. Francois county, Missouri, asking that the land in question in this suit be sold for the purpose of paying debts and legacies owing by said estate. At the July term, 1901, of said probate court, an order was made authorizing the administrator to sell the land at private sale. Prior to obtaining said order notices directed to all the objecting parties were posted in ten public places in said county of St. Francois twenty days before the first day of the July term of court. Neither the petition, order of sale, notices of application, return of sheriff showing posting of notices, nor any step taken in,the proceeding to sell the land, discloses the fact that any of the heirs and devisees were residents or non-residents of the county of St. Francois.
“In pursuance of the order above referred to the administrator sold the land in question to Thomas PI. Stam, on May 12,1902, at private sale for $50 per acre, or a total of $10,000, only $50‘ of which has been paid to the administrator. A contract was entered into between the administrator, Tucker, and Stam, by which Stam agreed to pay him the further sum of $9,950 ‘as soon as the further and necessary orders of probate court of St. Francois county, Missouri, can be made and the defects in the title perfected.’
“Prior to the sale to Stam the land in. question was appraised in due form at the sum of twenty-five dollars per acre.
“Soon after the sale to Stam and before it was approved by the probate court, objections were made by Jules Desloge and others to the confirmation, they having, before the report of sale was made and approved, offered the administrator the sum of $18,000 for the land, it being a sum of $8',000 in excess of the price to be paid by Stam.
“The sale of the land to Stam was approved by the probate court at its July term, 1902, and the parties interested in the estate, as heirs, devisees and legatees, except Louise Pierce, appealed to this court from the order approving such sale.
‘ ‘ Louise Pierce has entered her appearance in this court as one of the persons named in the will of John M. Desloge, and is objecting here to the approval of the sale to Thomas H. Stam. She resided at Desloge in this county during the year 1901. By the will of John M. Desloge she is given $500, hut she had no interest as an heir in the land of John M. Desloge.
“The will of John M. Desloge gives to certain parties named sp'ecific sums of money, but does not specify out of what funds such legacies are to be paid, whether from personal or real estate.
‘ ‘ This land at the time it was sold to Mr. Stam, on May 12, 1902, is valued by the witnesses all the way from $50 to $150 per acre. Two witnesses who are not shown to have any interest in the controversy, value it from $100 to $150 per acre.
“The administrator never offered the land to any one except the Desloge heirs and Thomas H. Stam. It is not shown that he made any attempt to sell the land to any of the several mining companies doing business in the vicinity.
“That the land had a greater market value than $50 per acre is shown by the fact that very soon after Mr. Stam bargained for it, he bargained to resell it to the St. Jose Lead Company at $100 per acre.
“Evidently the administrator did what he could to effect a sale to Jules Desloge and the other heirs of John M. Desloge, deceased. He was given to understand that at least Jules Desloge and some of his sisters did not wish to purchase the property.
“Although the report of sale made by the administrator shows that he was paid the sum of ten thousand dollars by Mr. Stam, yet the fact is that Mr. Stam has only paid the sum of $50.
“This court, on appeal from the order of the probate court approving the sale to Stam, is asked to disapprove the sale, one ground being that Louise Pierce, one of the persons named in the will of John M. Desloge, being a resident of St. Francois county during the year 1901, was, under section 148, Revised Statutes 1899, entitled to be served with a copy of the notice provided for by that section, and that if such copy of notice was not served on her, then the probate court acquired no jurisdiction to make the order of sale.”

Supplementing the foregoing facts, the record warrants this further statement:

John M. Desloge, decedent, was a single man. The legatees nominated in his will are his inheriting kin (barring Miss Louise Pierce), and the residuum of his estate, after paying legacies and debts, goes to said heirs. Josephine Fuse, heir and legatee, died after the will was probated and left adult children and one minor child to inherit.

Referring to the finding of Judge Anthony, to the effect that the land was sold to Stam on May 12, 1902, it may be said the record tends to show that the negotiations opened prior to that time, say, in April, 1902.

Referring to the same finding to the effect that shortly after Stam bargained for the land, he turned about and bargained to resell it to the lead company, at $100 per acre (a present profit of $10,000), the record further tends to show that Stam bargained with said lead company anent this sale early in the spring of 1902, possibly, in March or April, and the broad fact is inferable that he knew his purchaser and selling price before he closed his contract to buy.

Referring to the objections made to the report of sale, it may be said that all the heirs and legatees, in one form or another, joined therein. Further, it was shown below that, at the amount of Stam’s bid, the estate would not pay legacies provided for after paying debts — the amount of the latter not being disclosed.

Referring, again, to Judge Anthony’s finding relating to the attempts of the administrator to sell to the heirs of decedent, that finding may be supplemented with the further facts that the land was appraised several times — the last time, about twelve months before the sale; that the appraised value was twenty-five dollars per acre; that Jules Desloge, in the capacity of an elder brother, assumed somewhat to act for and on behalf of his sisters; that no direct attempt was made by the administrator to sell this land to the sisters, but he was informed by Jules Desloge the heirs would not buy, that it was not convenient for some of them to raise the money; further, that the land was offered'to Jules Desloge at three-fourths of the appraised value and the administrator was informed by him the heirs would not take it at that sum. However, the legal authority of Jules Desloge to represent the other heirs is not shown. The record, in our opinion, further shows that no fraud in fact or intent, can be laid at the door of the administrator. He seems to have acted in good faith through-, out. He knew nothing of Stam’s negotiations with the lead company, nor of Stam’s prospective windfall in that direction, before he was bound to Stam — after which time he felt bound in honor to carry out his contract. In this connection, it may be said the heirs of decedent knew nothing of the Stam offer until after it had been accepted and the contract entered into, and that the offer of some of these heirs to purchase, for $18,000, to pay a forfeit down and give a bond to comply with their bid, came to Mr. Tucker after his own contract with Stam.

It was further shown that the land in question was surrounded by land belonging to lead companies; that these companies were in active and paying operation and that new developments of ore in that vicinity had materially increased the going price of real estate' during the years 1901 and 1902— the price then tending up.

On this record, the following questions are presented :

First. Had the probate court jurisdiction to make any order of sale — and herein of two contentions: (a) Did jurisdiction fail because Miss Pierce was not personally served with notice? And (b) did jurisdiction fail because notice was posted in ten public places in the county of St. Francois, and this without the probate proceedings showing that the heirs and devisees were residents or non-residents of said county?

Second. The'matter of the sale remaining in fieri, and its confirmation resting in the sound discretion of the court, did the court err in disaffirming the sale ?

Of these seriatim.

I. It is asserted by respondents and denied by appellant that the proceedings in the probate court were coram non judice. The contention is a double one and will be so treated.

(a ) In'the first place, Miss Pierce, a resident of St. Francois county, was not served with notice. She was a legatee but not an heir, or a devisee in a technical sense. In this condition of things, it is insisted she should have been personally served with notice. Is this position tenable? We think not. The statute provides (R. S. 1899, sec. 148), as follows. “When such petition and such accounts, lists and inventories shall be filed, the court shall order that all persons interested in the estate be notified therof, and unless the contrary be shown on the first day of the next term of the court, an order will be made for the- sale of the whole or so much of such real estate as will pay the debts of the deceased. Such notice shall be published for four weeks in some newspaper in the county in which the proceedings are had, or by ten hand-bills, to be put up in ten public places in said county at least twenty days before the term of the court' at which any such order will be made, in the discretion of the court: Provided, that in all cases where the heirs or devisees of deceased are resident of the county where such administration is had, there shall be personal service of the notice required by this section on such heirs or devisees, made at least ten days before the term of court at which said order of sale is to be made.”

Construing the proviso with the body of the section, the phrase, “persons interested in the estate,” evidently was purposely left a broad one. It is not necessary for us to say that only heirs and devisees' were meant by the general designation of “persons interested in the estate. ’ ’ For present purposes, it is sufficient to hold that at least some of “the persons "interested in the estate” are defined in the proviso to' the section as “heirs or devisees.” This construction by implication is within the exposition of this section in Hutchinson v. Shelley, 133 Mo. l. c. 413, and Young v. Downey, 145 Mo. l. c. 259-60.

The word “devisees” in the proviso was not, in our opinion, used loosely and so as to include “legatees. ’ ’ This is somewhat shown by the fact that in section 146 the word “legacies” is used with legal precision in connection with “debts” — the existence of both,' or either, in excess of personal assets conferring 'the right on the administrator to initiate proceedings to sell real estate. The word devisee has a common-law meaning, and, by using that word, the Legislature is presumed to have also adopted that meaning. “An heir is one on whom the law casts an estate upon the death of the ancestor; a devisee indicates the party getting real estate by will.” [Brown v. Bank, 66 Mo. App. l. c. 431.] On the other hand, legatee is defined as “a person to whom a legacy is given.” [Black’s L. Die., tit. “Legatee. ’ ’] And, primarily, legacy is defined by the same author as “a bequest or gift of personal property by last will and testament.” True it is, legacy and devise, legatee and devisee, are often used as interchangeable terms in wills and every-day conversation, and, therefore, courts would not feel fettered to any nice construction where subject-matter or context shows the words were used interchangeably, and as of the same import. But such popular and loose construction is hardly permissible in view of the statutory rule of hermeneutics, Revised Statutes 1899, section 4160. Thus: “The construction of all statutes of this State shall he by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute: First, words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import.”

Not only does the letter of the statute require no personal service of notice to a legatee, but the reason of the thing lies with that view. Because: To some extent, at least, an administrator represents creditors and legatees, in that his application to sell real estate is on their behalf, and, otherwise than in their interest, he may not meddle with the real estate of decedent. To some extent, then, legatees, and creditors are already in court through him on his petition. On the other hand, devisees and heirs own the real estate, subject to the payment of creditors and (in a given instance) legatees, and when it is proposed to subject their real estate to the payment of creditors and legatees they become, in a sense, an adversary party and entitled to personal service of notice, when residents of the county, but only when such residents. If the contention of respondents be allowed, and a mere resident legatee, in this instance Miss Louise Pierce, is held entitled to personal notice, then the logic of the situation would require that resident creditors also have personal notice; for a legatee, in one view, is but a creditor — made so by the will — but with rights subordinate to those of creditors at large.

The contention in hand is, therefore, ruled against respondents.

(b) But there is a deeper question in the case, and that is this: it nowhere appears on the face of the probate proceedings or in the sheriff’s return that respondents were either residents or non-residents of St. Francois county. In the absence of this affirmative showing,-respondents contend the probate court acquired no jurisdiction over them. Put another way, this contention is tantamount to the proposition that notices posted in ten public places in St. Francois county, being only effective as against non-resident heirs and devisees, the fact of non-residence should appear affirmatively in the proceedings as a predicate to base such character of service upon. It may be said, in passing, it was shown by indirection at the trial that respondents were in fact non-residents of St. Francois county.

If the attack were a collateral one it would be without merit, because, though probate courts are courts of limited jurisdiction, yet, moving in the orbit of their constitutional and statutory powers, in the administration of estates, they are not inferior courts, and the same liberal presumptions and intendments are indulged to sustain their proceedings and jurisdiction (attacked collaterally) as are indulged in behalf of other courts of record. [Robbins v. Boulware, 190 Mo. l. c. 51; Covington v. Chamblin, 156 Mo. l. c. 587; Langston v. Canterbury, 173 Mo. l. c. 131; Johnson v. Beazley, 65 Mo. 250; Brooks v. Duckworth, 59 Mo. l. c. 51-2.] Accordingly, it has been held to be the rule in collateral attacks, that the facts tending to show the judgment or order of a probate court is void for lack of jurisdiction should be found on the face of the record or, at any rate, in the files or returns. Otherwise, regularity will be presumed, i. e., the orders or judgments assailed will be presumed to have been based on proper evidence or other precedent steps.

But this is an appeal from the order and judgment of the probate court confirming the sale of real estate and it may be said that the attack is not collateral in a strict sense, but is made directly in the proceeding itself. It is true that by section 278, Revised Statutes 1899, an appeal under the sixth subdivision would lie from the order for the sale of real estate, and it is true that no such appeal was prosecuted in this case. But an order confirming such sale is the climax of the matter, and an appeal lies under the fifteenth subdivision of that section, reading as follows: “Fifteenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter.” We can perceive, therefore, no reason why a question of jurisdiction to make the original order of sale might not obtrude • itself on an appeal from the final order confirming such sale, in accordance with the general rule that questions of jurisdiction may arise at any phase of the case, here or below.

Conceding that notice in these proceedings is a jurisdictional fact (see authorities cited under point 2 of respondents’ brief), yet the question remains, what kind of notice? The administration act is somewhat of a code unto itself. It was carefuly written in plain language to be applied by plain courts in the interest of simplicity in the administration and devolution of estates. Where it furnishes a guide, therefore, the analogies and niceties of the general law need not be invoked. Examining section 148 with an eye to the contention under consideration, it appears that a publication of notice of the application to sell real estate and of the order to show cause why such sale should not be made, is mandatory in every instance, as we construe that section. It says that “the court shall make an order that all persons interested in the estate shall be notified thereof.” It says that “such notice shall be published for four weeks,” etc., or “by ten handbills to be put up at ten public places,” etc. And it provides, furthermore, that resident heirs or devisees shall be personally served. It would not seem that the publication of a notice by posting and also the service of that notice personally on resident heirs and devisees are repugnant to, or that they superfluously overlap, each other. Both can stand, both serve a purpose. The publication serves a purpose of wise publicity, operating generally on the class designated as “persons interested in the estate.” The personal service on resident heirs and devisees serves an added purpose easily apparent, and, such service of notice being only .necessary, when the fact of residence in the county (where administration is had) exists; it would seem that in the absence of a presumption either way on the fact of residence and in the absence (as in this case) of an affirmative finding or showing of such residence in St. Francois county, the proceedings on their very face show a compliance with statutory law, i. e.; show jurisdiction to make the order of sale. In other words, the publication was properly made by posting; if, now, personal service was also necessary, that fact should appear from the proceedings, or at least from the proof, and it not appearing, the jurisdiction is sustained.

Under this view, the contention of respondents now up for consideration is unsound. Accordingly, it is disallowed.

II. It is conceded by the learned counsel for appellant that the matter of the sale, pending its confirmation, remained in fieri, and that its confirmation-rests in the. sound, i. e., judicial, discretion of the court.

With this concession in the case, appellant insists the court erred in disaffirming the sale, and, therefore, the cause should be reversed and remanded.

Did the court err on this behalf? We think not, and this is so because:

(1) Section 167, Revised Statutes 1899, provides for a full report of the administrator’s proceedings under an order of sale, and section 168 provides that “if such report and proceedings .... be not approved by the court, his proceedings shall be void. ’ ’ One who runs as he reads may understand this statute. It means a sale by the administrator, of itself (and this necessarily includes any contract of sale), has no life until such time as it has passed under the eye of the court and has been breathed upon with the breath of judicial sanction. It means, furthermore, that the paramount duty of the probate court in the first instance, and of the circuit court and of this court on appeal, is to see to it that the sale was a fair sale, fairly made. An administrator is but a trustee and is held to the duty of diligence in protecting his trust. “If at first,” he “don’t succeed,” he must “try,try again.” The evidence satisfies us, as it did the court below, that this land was unnecessarily bargained away at something like half its market value. It satisfied the court below and satisfies us that while the administrator was guilty of no fraud, yet that he was not diligent in seeking purchasers among those most likely to buy, to-wit, lead companies operating in that vicinity.

Confronting this situation, why should a court make a present to Mr. Stam of $10,000 of John M. Desloge’s estate, thus allowing him to reap where he had not sown?—feather his nest with others’ feathers? The matter is put to us somewhat in the light of punctilio, or in the light of sparing the feelings of the administrator or of Mr. Stam. But no such questions are involved. Such questions do not measure beyond the mark of coloring* matter and entirely miss the heart of the issue. The real estate was necessarily sacrificed and that is judicial reason enough to refuse to confirm the sale. The sale was for less than would pay debts and legacies, and hence, the interests of the legatees were unnecessarily sacrificed, and that is a further judicial reason for refusing to confirm the sale. The heirs were interested in a surplus. That surplus never sprang into existence, though it hangs dangling’ before the eyes of all—ripe for the plucking*. Hence, the interests of the heirs were sacrificed, and that is further judicial reason for refusing to confirm the sale.

If the interest of Mr. Jules Desloge was alone to be considered, a somewhat different tinge might be given the case, because the administrator made fair effort to have him, and through him (as shown by his admissions) the other heirs, take this land, as they, in solido, had a legal right to do under the law at three-fourths of the appraised value, in the absence, of course, of injury to, and reasonable objections by, legatees or creditors. But we are not dealing with Jules Desloge alone. The case involves the interests of his sisters, who it seeins were not able to buy, and it involves the interests of the heirs of Josephine Fuse, now dead, who left a minor child, and it touches the interests of the legatees, as such.

(2) We are cited to an array of authorities by the . learned counsel of appellant showing that inadequacy of consideration, unaccompanied by other facts appealing to a chancellor’s conscience and discretion, will not avoid a judicial sale. But these cases are not in point.

The sale in hand is not a judicial sale, speaking with precision, until it is confirmed and a deed made. If this sale had been confirmed and a deed passed, and if a bill had been lodged in a court of equity to set the sale aside for inadequacy of consideration (nothing more appearing), the authorities to which we are cited would apply. But the reason of the rule fails, and we cannot give our consent to such a doctrine, as applied to an administrator’s sale, when the only question is: Shall it be confirmed1?

The judgment below was clearly right, and must be affirmed.

Brace, P. J., and Valliant, J., concur; Graves, J., not sitting.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    MARY E. LEVELS et al. v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.
    Division One,
    May 30, 1906.
    1. PLEADING: General Denial: Matters in Abatement. A general denial is addressed to the merits of the case, and does not put in issue those facts which are raised only by a plea in abatement.
    2. -: Answer: Amendment During Trial: Insane Plaintiff. In a suit by parents for damages for the death of their minor daughter, the petition alleged that her father had been adjudged insane and that the public administrator had taken charge of his estate and represented him in the suit. The answer was a general denial and a plea of contributory negligence. After plaintiffs had introduced most of their evidence defendant asked leave to file an amendment to its answer denying that the father was insane or that he had been adjudged insane or that the public administrator had been lawfully authorized to take charge of his estate. Held, that, under the circumstances, the court wisely ruled that the amendment would not be in furtherance of justice. Such an issue should be raised by a plea in abatement, without which plaintiffs were not put to the proof of the said facts.
    3. VERDICT: Province of Jury and Court: New Trial: Preponderance of Evidence. Where the only real issue at the trial in a suit by parents against a railroad for damages for killing their daughter was one of fact, namely, whether or not the daughter was under or over eighteen years of age, and there was substantial evidence to sustain the verdict, it is not the province of the appellate court to set that verdict aside, if there is no error in law and the trial was fair. It is the right of the jury to determine an issue of fact, as much so as it is the right of the' court to say what the law is. The trial court has the power to set aside a verdict if it is against the great preponderance of the evidence, and it is often its duty to do so, but the appellate court has no such power. It can set aside a verdict, where no error-of law was committed and the trial was fair, only when the record clearly shows that the verdict was the result, not of judgment, but of passion and prejudice.
    4. -: -: Examination of Evidence. It is often the duty of the appellate court to examine the evidence, when it is conflicting, for the purpose of determining whether an error occurring at the trial was of a character sufficiently serious to require a reversal.

      5. EVIDENCE: Fixing Date. In fixing a date a witness has the right to refer to a contemporaneous event or one nearly so, and the date of such event may he then proven by other witnesses or in other ways.
    6. -: Misstating Age: Reason. The issue was the age of deceased, and respondent’s witness on cross-examination was asked if deceased was not bright enough to know her own age, and intelligent enough not to give in her age falsely to the school commissioner, and answered that she was, and that if she misstated it she did so for a purpose, and that she knew what the purpose was. Thereupon respondents’ counsel asked her what was that purpose, to which defendant objected, on the ground that it was the mere opinion of the witness based on hearsay, and the court remarked that the objection “is a very ugly insinuation against a party who has testified unless it is explained,” and permitted the witness to answer, who stated that the purpose was that, her parents being very hardpressed to pay a mortgage, deceased and her mother had overstated her age by two years in order that she might get a school. Held, that defendant’s attorney did not call out this evidence on cross-examination, and being incompetent the court committed error in admitting it, as the court did also in his remarks concerning the objection.
    7. -: Age: School Register. A school register, kept in strict conformity to the statute by the teacher in a public school, in which are entered the names, ages and date of entrance of pupils, is competent evidence as to the age of a pupil. It is not record evidence in the strict sense of conclusiveness, but like school enumeration lists and United States census, it is competent evidence to be weighed in the balance with other evidence.
    8. -: -: Bible: Remarks of Counsel. The issue in the case was the age of plaintiffs’ deceased daughter, and their testimony tended to show that the ages of their children were recorded in a family Bible, and that the book was in their possession. An insurance agent, a witness for defendant, testified that when the application for an insurance policy was taken on the life of the daughter, he asked her mother the daughter’s age, and that the mother consulted the Bible and stated she was born on a certain date, which, if true, made the daughter one year older than plaintiffs claim. Another witness for plaintiffs in her deposition stated that she was present when the daughter was born and when her age was recorded in the Bible, and it was in evidence that plaintiffs’ attorney took a book out of his safe and asked the 'witness if she could identify it as the Bible, and defendant’s attorney asked to see the book, but was refused. When defendant’s attorney was arguing the case to the jury he alluded to the fact that plaintiffs had not offered the Bible in evidence, whereupon plaintiffs’ attorney took a book out of bis satchel and bolding it up, said: "J-Iere is the Bible; you can introduce it now to the jury.” Defendant objected to the remark and asked the court to rebuke the attorney, and the abstract says the court did rebuke him, but does not state what the court said, but does say that defendant excepted. Held, under this state of the evidence, defendant had a right to comment on the fact that the -Bible record was not offered in evidence, and not knowing what the record revealed it would have been folly for him to have accepted the challenge of plaintiffs’ attorney. Under the circumstances the exhibition of the book by plaintiffs’ attorney and his remarks were highly prejudicial, calculated to lead the jury to form an unfavorable judgment because defendant’s counsel did not take the book and exhibit it to them, and were such errors as a mild rebuke, if any rebuke at all, could not cure.
    Appeal from Audrain Circuit Court.—Hon. H. W. Johnson, Judge.
    Reversed and remanded.

      Geo. A. Mahan, P. H. Cullen and J. D. Hostetter for appellant.
    (1) Tie trial court erred in tlie admission of illegal, incompetent and prejudicial testimony and documentary evidence offered on behalf of the plaintiffs during the development of their case in chief over the objections and exceptions of defendant’s counsel, and ■erred in other respects in the following particulars, viz.: (a) In the admission of a certified copy of the order of the county court of Pike county, adjudging Powhatan B. Levels, one of the plaintiffs, to be insane, and directing him to be taken to the state lunatic asylum for treatment as a county patient. It cannot be seriously contended that a county court has authority to adjudicate, or declare a person to be insane or to disqualify him from managing his affairs or to affect his civil rights by such a judgment, (b) In the admission of the certified copy of the order of the probate court of Pike county adjudging said Levels to be insane and appointing James V. Davis, public administrator of said county, to take charge of his estate, etc. This order recites that no notice was given said Levels of such proceedings, and that the same were had and held in his absence. Notice to the alleged lunatic is jurisdictional, and where the record shows affirmatively that no notice was given, and no order made requiring his presence at said hearing, as was the case here, the judgment is void even in a collateral proceeding. Crow v. Meyersieck, 88 Mo. 411; Dutcher v. Hill, 29 Mo. 271. (c) In the refusal of the court to allow defendant’s counsel to amend its answer so as to specifically put in issue the adjudication of insanity. This request to so amend the answer was made at the time said orders of the county court and probate court were read in evidence and was repeated at the close of plaintiff’s testimony in chief, (d) In permitting the witness Mollie R. Farrell to state over the objections and exceptions of defendant that the alleged purpose of the Levels people, in giving out incorrect and false statements as to Hattie’s age, was to enable the latter to get a school by pretending to be older than she really was. This information the witness claimed to have received from Hattie herself. It was based on hearsay testimony, and was mixed with other poisonous statements about the poverty of the plaintiff Mary E. Levels, and about her hard work to support the family and to pay taxes and keep down the interest on the mortgage on the home, and about their anxiety to have Hattie to teach school in order to aid her mother. For these very laudable reasons the witness concludes that Hattie formed an intent to pretend to be two years older than she really was. This testimony was very cunningly and artfully pressed upon the consideration of the jury, over the protest of defendant, and could not be regarded otherwise than as prejudicial. (2) The trial court erred in the exclusion of legal and competent testimony tendered and offered by defendant in the following particulars: (a) In excluding the school enumeration lists. The enumeration list is an official record, which the law requires to he made and kept. It was therefore competent evidence of all matters which the statute requires that it should contain. Sec. 9770, R. S. 1899; Greenleaf on Ev. (15 Ed.), sec. 483; 2 Jones on Ev., sec. 520; 9 Am. and Eng. Ency. Law (2 Ed.), 883; Reynolds v. Ins. Co., 88 Mo. App. 679; Ohmeyer v. Sup. Forest Woodmen Circle, 91 Mo. App. 200; State v. Austin, 13 Mo. 538. (b) In excluding the daily school register kept by Prof. A. Cockfield, teacher of the Bowling Green public school while Hattie Levels was a pupil. Section 9800, Revised Statutes 1899, requires a daily register to be kept by the teacher, showing, among other things, the age of each pupil. This is an official register required by law, and was shown to have been kept by Prof. Cockfield and deposited with the school board, in whose custody it continued thereafter. This was competent evidence on all matters which the law required that it should contain, and it was error to exclude it. Greenleaf on Ev. (15 Ed.), sec. 483; 2 Jones on Ev., sec. 520; 9 Am. and Eng. Ency. Law (2 Ed.), 883; Reynolds v. Ins. Co., 88 Mo. App. 679; Shutesbury v. Hadley, 133 Mass. 242; Ohmeyer v. Sup. Forest Woodmen Circle, 91 Mo. App. 200; State v. Austin, 13 Mo. 538. (c) In not sufficiently rebuking Mr. Emerson, of counsel for plaintiff, for alleged improper and prejudicial remarks to the jury during his argument. (3) There is no substantial testimony to support the verdict. The testimony of plaintiff and her witnesses is incredible, and is absolutely overborne by strong contrary evidence of the records. It is not a question of weight of evidence; plaintiffs’ showing, should not be dignified as evidence; it has no probative value. If Hattie Levels was born in 1885, as contended by plaintiffs, then all the evidence shows that she was teaching school at fifteen years of age. This is against universal experience and natural conditions. She was not mentally and physically able to teach school at that age. If so, she was extraordinary, and that has not been shown. Courts will not treat as evidence statements which cannot be truthfully made, and will interfere to prevent the unjust transfer of money or property from one party to another. Nugent v. Milling Co., 131 Mo. 241; Spohn v. Railroad, 87 Mo. 74; State v. Fannon, 158 Mo. 149; ‘Whitsett v. Ransom, 79 Mo. 258;-Hook v. Railroad, 162 Mo. 569; Spiro v. Railroad, 102 Mo. App. 250; Kelsey v. Railroad, 129 Mo. 376. Statements made by a party against his own interest must be taken as true. Erwin v. Railroad, 94 Mo. App. 297; Feary v. Railroad, 162 Mo. 105. Acts of public officials are presumed to be correct. In order to avoid the effect of an acknowledgement before a notary public, the evidence must be clear and of a decided preponderance. A bare preponderance will not suffice. Barrett v. Davis, 104 Mo. 555; Springfield, etc., Co. v. Donovan, 147 Mo. 633; Comings v. Leedy, 114 Mo. 477.

      Geo. W. Emerson and W. O. Gray for respondents.
    (1) The first point made by appellant’s counsel in their brief is not well taken, and the authorities they cite do not support their contention. Powhatan Levels, at the time he was adjudged of unsound mind, was in the asylum at Fulton and had been for a long time. The proceedings in the probate court and the appointment of his guardian were regular and in accordance with the provisions of the statutes. R. S. 1899, secs. 3650-3654. Besides, this question can not be raised by appellant in this collateral proceeding. The person adjudged insane might properly attack the validity of such proceedings in certain cases; but the appellant has no ground of complaint. ' The appellant is not called upon to look after the interests of Powhatan Levels; and the judgment being in favor of said plaintiff, he is certainly not suffering any loss. McKenzie v. Donnell, 151 Mo. 431; Kiehne, Exr., v. Wessell, 53 Mo. App. 667. (2) No proper and competent testimony offered on behalf of the appellant was excluded by the trial court. Some school enumerations were excluded because they were not properly identified, or shown to have been made with the knowledge or consent of the plaintiffs, or that the plaintiffs in fact knew anything about their contents. Appellant’s evidence along the lines complained of was exceedingly full. (3) Nor is there -any valid ground of error in the complaint that the trial court did not sufficiently rebuke Mr. Emerson, of counsel for respondents, for alleged improper remarks to the jury. As will be seen from the record, the trial court did rebuke the counsel for alleged improper remarks in regard to the Bible, although we think that appellant’s counsel was not justified in commenting on the fact that respondents had not introduced the Bible in evidence. Witnesses were present in the courtroom who testified that the date of Hattie Level’s birth was put down in the Bible on the day she was born. That was the best evidence. Besides, as the record shows, appellant’s counsel knew the Bible was in the possession of respondents ’ counsel. But conceding Mr. Emerson’s remarks to be improper, the trial court did interfere, as the record shows. Such matters must of necessity lodge with the trial court; and, as has been held in appellate courts generally, the interests of public justice require that counsel should not be subjected to any unreasonable restrictions in their arguments to the jury. In the ease at bar, however, the record shows that the trial court rebuked the counsel, and manifestly the verdict was not the result of any passion or preju-' dice on the part of the jury, but their inevitable conclusion from the plain, direct and unequivocal testimony given by respondents’ witnesses on the sole issue at the trial—the date of Hattie Levels ’ birth. (4) The testimony of six or seven witnesses as to the date of Hattie Levels’ birth, the issue on the trial, was peculiarly unequivocal and convincing, and stood the test of rigid and full cross-examination. The question at issue was one of fact purely; and to divest the jury of the power to pass on such a casé, the evidence must be in clear contradiction of some physical fact or contrary to natural laws. Hook v. Railroad, 162 Mo. 569. It isthepeculiar province of the jury to determine the credibility of the witnesses and the probative forceof their testimony. Temple v. Railroad, 83 Mo. App. 64. An examination of the record will clearly show an abundance of substantial evidence to justify the verdict; and in such cases the appellate courts will not set aside the finding of the jury in a law case. Plow Co. v. Sullivan, 158 Mo. 440; Blanton v. Dold, 109 Mo. 64. Where the evidence produced by plaintiff is sufficient to make out a prima facie case, the appellate court will not interfere with the verdict on a question of fact. Carter V. Railroad, 156 Mo. 635; Liese v. Meyer, 143 Mo. 547; Steube v. Christopher & Simpson, etc., Co., 85 Mo. App. 640; Cicero v. Meixner, 160 111. 320 ; James v. Life Assn., 148 Mo. 1.
   VALLIANT, J.

—Plaintiffs sue under section 2864, Revised Statutes 1899, to recover damages for the death of their daughter, Hattie Levels, who, they say, was a minor at the time of her death and lost her life while a passenger in defendant’s car through negligent defect in the equipment.

The petition states that plaintiff Powhatan Levels, the father pf the deceased Hattie, had been adjudged insane by the probate court and that the public administrator has taken charge of his estate and represents him in this suit. The answer was a general denial and a plea of contributory negligence. During the trial, after the plaintiffs had introduced the most of their evidence, the defendant asked leave to file an amendment to its answer denying that Powhatan was insane or that he had been adjudged insane or that the Public Administrator had been lawfully authorized to take charge of his estate. On objection of tbe plaintiffs, tbe conrt refused to allow tbe amendment, for tbe reason, as stated by tbe court, that it would not be in furtherance of justice. That ruling is assigned as error.

I. Tbe ruling óf tbe court in that respect was right. If tbe defendant intended to deny tbe capacity in which the plaintiff sued, it should have made a specific denial of tbe allegations of tbe petition-in that respect in the nature of a plea in abatement. Tbe general denial is addressed to tbe merits of tbe case and does not put in issue those facts which are raised only by a plea in abatement. Plaintiffs were not put to tbe proof of those facts to maintain their case as tbe pleadings stood when tbe trial began and tbe trial court wisely ruled that it would not further the ends of justice under tbe circumstances of tbe case to allow tbe issue to be raised after.tbe trial bad progressed.

II, Tbe main pivot on which the case turned was the age of plaintiffs’ deceased daughter; if she were a minor, tbe plaintiffs were entitled to recover, if she was eighteen years of age, tbe plaintiffs could not recover. Tbe plaintiffs’ testimony tended to prove that her age was seventeen years and ten days; defendant’s, that it was nineteen years and ten days. Tbe jury found for tbe plaintiffs and a judgment for $5,000 in their favor was rendered, from which defendant appealed.

Appellant in its brief concedes that tbe deceased was a passenger and lost her life through tbe negligence of tbe carrier and that defendant is liable if, in a fair trial, it is found that tbe deceased was under eighteen years of age at tbe time of her death.

Tbe general character of tbe plaintiffs’ testimony was that of witnesses who remembered tbe occasion of tbe birth of Hattie and undertook to fix tbe date in reference to some collateral event that was of sufficient importance to fix it on tbe mind of tbe witness; for instance, one witness who was present at the birth remembered that it was abont one month after the birth of her own child whose age was recorded and well remembered; another remembered that she stopped at the plaintiffs’ home on that occasion when she was on her way to see her grandmother who was ill and who died shortly afterwards and the date of whose death was proven; other witnesses remembered the occasion in connection with the time a man was hanged for mnrder, the date of the execution being shown by the court records. The plaintiffs’ evidence also tended to show that the Levels kept a family Bible in which the ages of their children were recorded and that Hattie’s age was there recorded; this Bible was shown to be in the custody of the plaintiffs, but was not introduced in •evidence. One of the plaintiffs, the mother of Hattie, testified that she and her husband were married in September,, 1882; that they had three children, Hattie the eldest, born in July, 1885, Blanche the second, born June, 1887, and "William in 1889. The testimony on the part of the defendant was derived chiefly from the records •of the school enumerations, the United States census enumeration and Hattie’s school record. These enumerations showed that Hattie was born in July, 1883, Blanche, June, 1885, and William in 1887.

Defendant also introduced testimony of the same character as that of plaintiffs; for example, one witness for defendant testified that in the summer of 1884 she called at the house of plaintiff on a matter of business early in the morning and found the family seated at the breakfast table, their child sitting in a baby’s high chair to the table; some conversation ensued between the mother and the visitor about the child, and in the same conversation mention was made of the death of the witness’s mother which had recently occurred, the date of which was August 29, 1884. The defendant’s testimony tended to show that Hattie was a teacher in the public schools; she received her first certificate as a school teacher in August, 1900, just two years before her death; if she was born in August, 1885, as the plaintiffs claim, she was only fifteen years old when* she became a teacher in the public school. The school commissioner who issued the certificate testified that he knew nothing of her age when he issued it except as he judged by her appearance, and so judging it he would say she was at that date, August, 1900, eighteen years old. In November, 1901, she applied for an advanced certificate, and was again examined by the then school commissioner, who testified that she then told him that she was nineteen years old, and he made a memorandum of the fact at the time, which memorandum was on the stub in the book from which the certificate was taken. There was also in evidence an application for a life insurance policy signed by Hattie, for insurance on her own life in favor of her mother, dated July 3, 1899', in which she stated that she was born July 24, 1883; and there was proof of her death made to collect the insurance, which was signed by the plaintiff Hattie’s mother in which she stated that Hattie’s birth was July 24,1883. The insurance agent who took that proof testified that he wrote the date of the birth at the dictation of Mrs. Levels who, before answering his questions as to the date, examined some book which to the witness looked-like a Testament and then gave the date and he wrote it as she gave it, and she collected the money. That proof of death was dated August 6, 1902, three davs after the death. This suit was filed January 24, 1903.

Our purpose in thus stating the general character of this evidence is not to weigh it to see if the jury’s estimate of it was correct, because an appellate court has no right to do that; the same authority that gives the court the right to say what the law is, gives the jury the right to say what the facts are, and the court has no more right to set at naught the jury’s finding of the facts than the jury has to disregard the court’s declaration of the law. To relieve against a flagrant wrong that might be committed, the law has wisely given the trial court the power and imposed on it the duty of setting aside a verdict if it is against the great preponderance of the evidence and it is often a cause for regret that trial courts are not as apt to exercise that power or perform that duty as they should be, but even then when the case comes to an appellate court, whatever opinion may be had of the fairness of the verdict, if there is substantial evidence to sustain it, the appellate court violates the law if it undertakes to substitute its judgment for that of the jury or to perform a duty that the law has imposed on the trial judge alone, and which it may be feared he has neglected to perform. It is only when the record clearly shows that the verdict was the result, not of judgment, but of prejudice or passion, that the law gives the appellate court the right to set it aside when there is no error in law. An appellate court in its anxiety to do justice is sometimes strongly tempted to correct what to it seems-to be a verdict against the weight of the evidence, and thus invade the province of the trial judge, but even that motive will not justify the invasion or make it any less unlawful. And, in the long run and general average, justice will be found to be best promoted by leaving the responsibility for injustice in a particular case just where the law has placed it.

But it not infrequently happens that the duty of examining the evidence when it is conflicting devolves on the appellate court for the purpose of deciding whether an error occurring in the trial was of a character sufficiently serious to require a reversal of the judgment. Section 865, Eevised Statutes 1899, forbids an appellate court to reverse a judgment unless it believes that error was committed in the trial court against appellant “and materially affecting the merits ■of the action.” Sometimes, therefore, a judgment is affirmed although illegal testimony has been received ■or other error committed, if, upon the whole record, it is absolutely clear that the judgment is for the right party and that the error could not have affected the result of the trial. But when the case turns on a question of fact and the evidence is so conflicting that a verdict for either side can be said to have substantial evidence to support it, then the introduction of illegal evidence is a matter of more consequence than it would be in a case where the evidence in support of the verdict was substantially all one way.

Plaintiffs cannot claim for the evidence in support ■of this verdict that it amounts to anything more than what could be called substantial. The plaintiffs’ witnesses when testifying were drawing on their memories for facts that occurred eighteen or twenty years before; they seem to have had a vivid recollection of the birth ■of a child to Mrs. Levels and they fixed the date by collateral events concerning which they were not likely to be mistaken. But the fact being that Mrs. Levels had a second daughter, Blanche, born in June, 1885, was a fact to be considered. It was not impossible for these witnesses trying to recall what occurred at that distant day, to have mistaken the occasion of the birth ■of the second for that of the first child and to have associated it with the collateral event mentioned; if, therefore, the verdict had been for the defendant it would not necessarily have been a reflection on the veracity of the plaintiffs’ witness.

Giving to the plaintiffs the full benefit of what they •claim for their evidence, that is, that it was substantial, it cannot be said to be overwhelming in its probative force; therefore, defendant has the right to ask this court to scrutinize the evidence admitted over its objection.

1. Over the objection of defendant, plaintiffs read in evidence the depositions of Strother, circuit clerk, and Mavhall, editor of a newspaper, to show the dates of the indictment, conviction, appeal, reversal, retrial, second conviction, appeal, affirmance and final, execution of Collins, the date of whose execution was the collateral fact by which some of the witnesses fixed the date of Hattie’s birth. Those were all matters of record which could have been shown by the record, if true, and if the objection to the depositions had been put on the ground that they were at best only secondary evidence, the court should have sustained the objection, but it was not put on that ground, but on the ground that the depositions related to matters foreign to the issues. In fixing a date a witness has the right to refer to an event co-temporaneous or nearly so with the date in question and the date of such event may be then proven. The court did not err in overruling the objection on the ground on which it was made.

2. On cross-examination of Mrs. Farrell, who was one of plaintiffs ’ principal witnesses, she was asked if Hattie was not a bright girl and knew her own age, to which the witness answered yes; she was then asked: “And she was intelligent enough not to give in her age falsely or erroneously? A. Well she may not have regarded that just as we do. Yes, sir, she may have yarn-ed about it. Yes, sir, if she gave her age incorrectly I would think she simply yarned and had a purpose in telling an untruth about it. Mary Levels.I think is intelligent enough and ought to have known Hattie’s age. If she gave her age incorrectly I would think she had a purpose. I think I knew the purpose.”

On re-direct examination witness was asked by plaintiffs’ attorney: “What was the reason, state what the purpose was in making her age more than it was?” Defendant objected to the question on the ground that it was the mere opinion of the witness based on hearsay evidence, the objection was overruled and exception taken; in overruling the objection the court made this comment: “It is a very ugly insinuation against a party who has testified unless it is explained; she may explain.” Defendant excepted also to the comment. The witness then answered: “Well, as you know her mother had to work very hard to support her family for the last few years, say from, well 1894 or .1895, I think; she was supporting the family while her husband was supposed to be paying the taxes on the property and keeping down the interest on the mortgage that was on their home, and they were very anxious to have this girl teach school, and in order to be able to get a school she puts herself up two years, or at least that was her intention, and I know it. Q'. From whom did you get that information? A. From Hattie herself.”

The only ground on which plaintiffs’ attorney claimed that this testimony was competent was that the defendant had called it out in the cross-examination. But that is a mistake; the defendant only asked if Hattie was a bright girl and had sense enough to know her own age and know when she was telling an untruth about it; the witness volunteered to say that Hattie and her mother had a motive for telling an untruth and that she knew the motive. That was not responsive to any question asked by the defendant.

The testimony was incompetent and hurtful to the defendant; it was a direct appeal to the sympathy of the jury, and offered what was evidently intended to he a praiseworthy excuse for telling a falsehood; it was hut the witness’s opinion founded on hearsay. The court’s comment was unjustifiable, the question asked by defendant on cross-examination did not deserve the rebuke of saying that it contained “a very ugly insinuation against a party who had testified.” Defendant had a right to show that the false statement as to age could not he attributed to lack of intelligence on the part of Hattie or her mother, and that is as far as defendant’s questions went. It was error to admit that testimony.

3. Some of the school enumeration lists offered were admitted in evidence and some excluded on plaintiffs ’ objections. Appellant assigns the exclusion of these as error.

All of the school enumeration lists that were shown to have been made in conformity to the statute were admitted, but some were not just what the law required; for example, the enumerator testified that in 1900 he called in person on Mrs. Levels and asked her the ages of her children and recorded them as she gave them; that list was admitted in evidence; but in 1901 and 1902 the enumerator made up the lists as to the plaintiffs’ children without calling on the parents, simply putting them forward in ages one and two years. Other lists had other irregularities. Neither of those excluded lists was competent evidence in itself of what it purported to show, but when the defendant undertook to show by the school enumeration lists the age of the deceased the duty devolved on it to produce all of the lists attainable; if it had selected one or two lists that were favorable to its defense and failed to produce the others, the plaintiffs would have had a right in their argument to the jury to call attention to that omission and to ask why the defendant selected such lists as suited its purpose and withheld the rest, was it because the absent lists showed that the errors in those produced had been corrected? That would have been a legitimate argument and a legitimate inference to the prejudice of defendant could have been drawn. Therefore the duty devolved on the defendant to offer those lists in evidence to show that they did not contradict the lists that were regular. But the court’s ruling on the question was correct, because when the defendant offered them it did its whole duty in regard to them and the plaintiffs by objecting to them were disarmed of that argument.

4. Section 9800, Revised Statutes 1899, is as follows: “It shall be the duty of every teacher employed in any of the public schools of the state to keep a daily register, in which names, ages and dates of entrance of the pupils shall he entered, and the studies pursued by the same; the date of each visitation by the directors or other school officers; which register shall be open to the inspection of the public at all times.”

A register as required by that statute was kept by the teacher of the school which Hattie attended for the term begining September 4, 1899, and that register shows that her first day’s attendance was November 6,. 1899, and her age then seventeen years. Defendant offered that register in evidence and it was excluded on objection of plaintiffs. The-court erred in excluding the evidence; the register was a record which the law required to he kept and the evidence showed that it was kept in strict conformity to the requirement of the law. It was not record evidence in the strict sense of conclusiveness, hut like the-school enumeration lists and the United States census lists, it was competent evidence to be weighed in the balance with other evidence. [State v. Austin, 113 Mo. 538; Van Riper v. Morton, 61 Mo. App. 440; Reynolds v. Ins. Co., 88 Mo. App. 679; Ohmeyer v. Woodmen, 91 Mo. App. 189, l. c. 201; 1 Greenleaf on Ev. (16 Ed.), sec. 483; 9 Am. and Eng. Ency. Law (2 Ed.), 883.]

5. When the cause was being argued before the jury the attorney for defendant alluded to the fact that the plaintiffs had failed to offer in evidence the Bible in which they claimed that the ages of their children were recorded, whereupon the attorney for the plaintiffs took a book out of a satchel he had and holding it up in the presence of the jury said: ‘ Here is the Bible,, you can introduce it now to the jury,” Defendant objected to the remark and requested the court to rebuke the attorney for it. The abstract says that the court did rebuke the counsel, hut it also says that the defendant excepted. What the court did say is not stated. In the brief for respondents it is said that the court rebuked the counsel; in the brief for appellant it is said, that the court did not sufficiently rebuke him. Just how far the effect of an improper remark by counsel is cured by a rebuke from court depends-on the circumstances of the ease. In order to appreciate the effect of this remark we should notice the evidence in relation to this Bible. The testimony on the part of the plaintiffs tended to show that the ages of their children were recorded in the family Bible and that that Bible was in the custody of plaintiffs. The insurance agent, a witness for defendant, testified that when the application for the insurance on the life of Hattie was made he went to the plaintiffs’ house and wrote the answers to the questions in the application from what Mrs. Levels told him; when he asked Hattie’s age, Mrs. Levels consulted a Bible, and then stated that Hattie was born July 24, 1883, and the witness so wrote it.

It also was in evidence that in the taking of the deposition of Mrs. Farrell (who was one of the witnesses for plaintiff who testified that she was present when Hattie was born and when her age was recorded in the Bible) the attorney for the plaintiffs took a book out of his safe and showed it to her arid asked her if she could identify it as the Bible .in which she had seen the age recorded and that the attorney for defendant who was present asked to see the book; the attorney for plaintiffs refused the request and returned it to his safe.

Hnder that state of the evidence the attorney for the defendant had the right to comment on the fact that the plaintiffs had failed to offer the supposed family record in the Bible in evidence and the action of the plaintiffs’ attorney in then showing a book and making the remark he did was unjustifiable and prejudicial to defendant. Of course the defendant’s attorney would not then venture to put the record in evidence because he had no knowledge of its contents. If he suspected that it had been altered or concocted for the occasion, he knew that he would be unable to grapple with it then. No attorney in his place would have ventured then to exhibit the book to the jury. The counsel understood the situation but the jury did not, and the jury were allowed to draw an inference unfavorable to the defendant from the fact that the book was not given in evidence and it was of such a serious character that the impression once drawn was not likely to be removed by a mild rebuke, if by any rebuke at all. For that cause alone the trial court would have been justified in granting a new trial.

For the errors above mentioned the judgment is reversed and the cause remanded to be retried according to the law as herein expressed.

All concur, except Graves, J., not sittiag.