source: Caselaw Access Project

author: GRAVES, C. J.

license: Public Domain

text:
    THE STATE ex rel. AMERICAN MANUFACTURING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    April 28, 1917.
    1. DURESS: Payment of Taxes. If the law prohibited the corporation from continuing its business unless it possessed a manufacturer’s license, and made each day’s continuance of. its business without such license a separate offense punishable by heavy fine, and forbade the collector to issue a license until the illegal taxes were paid, and required the collector to prosecute the corporation for continuing its business without such license, a payment of the taxes, under protest, to avoid prosecution and to obtain a right to continue its business, was a payment under duress.
    2. -: -: Property Right. A corporation’s potential existence depends on its ability to transact the business for which it was incorporated, and this is a property right; and if a failure to pay illegal taxes will, because of the penalties and inhibitions which the laws impose, prevent a continuance of that business, a payment, to avoid prosecution and to acquire the right to continue the corporate business without molestation, will constitute payment under duress.
    3. -: -: Threats: The Law Itself. If the law under which the license collector was demanding the tax and proceeding to enforce its collection provided that it should “be his duty to prevent any person carrying on any business, object or calling for which such license or license tax is required, without having a license or license receipt for that purpose” and that he should “report to the police court of such city all violations of law or ordinances relating to license and license taxes” and further provided that no manufacturer should continue his business without such license and if he did so he should be liable to a fine of $500 for each day’s continuance, the law itself, coupled with the collector’s demand that the manufacturer pay the tax as a final and absolute condition to the issuance of the license, constituted a threat to put the manufacturer out of business unless he paid the tax.
    4. -: -: Remedy: Dictated by Defendant. It does not lie in the month of the defendant who has through duress extorted an illegal tax from a manufacturer as the price of his continuing in business, to contend, when the manufacturer sues to recover the amount of the tax thus paid under protest, that his remedy was by writ of mandamus to compel the granting of license upon tender of the tax; for, one who uses his extraordinary powers for purposes of extortion is not privileged to dictate the particular remedy which his victim shall choose from among those which the law affords.
    5. -:-:-:-: Common Law a Mantle of Justice. Remedial justice extends itself like a mantle over those things that come within the reason of the law; and when legislative ingenuity devises new plans for the enforcement of its enactments,' the common law automatically extends corresponding protection to those who obey them.
    6. -: -: -: State as Extortioner. If the State proceeds by methods of its own making calculated to compel the taxpayer to yield, whether right or wrong, to avoid an overpowering injury, it has no right to complain if, having the bone of contention in its own possession, it must try the right to it on equal terms.
    7. CERTIORARI: Opinion of Court of Appeals: Judgment Right Despite Conflict. Although the opinion of the Court of Appeals conflicts with prior rulings of the Supreme Court in certain particulars, it will not be quashed upon certiorari if upon good reasons in law the judgment directed'by it was'right. Notwithstanding the opinion of the Court of Appeals conflicted with the prior rulings of the Supreme Court in holding that the payment of the illegal tax was not made under duress, yet if it correctly decides that, whether or not duress was exercised, the tax cannot be recovered from the collector, its judgment based upon that decision will be upheld.
    8. PAYMENT OF ILLEGAL TAXES: Recovery From Collector. A suit against the city collector, who is the agent of the State in collecting State taxes, to recover back the amount of a State tax illegally demanded and paid to him under duress, cannot be main- , tained, if he has already transmitted it to the State Treasury. The • Legislature alone can give relief in such circumstances. The rule is that whére money illegally collected by color of law still remains in the hands of the collector it may be recovered from him by the party paying it; but if it has been paid over by the collector to the proper authorities, he is no longer responsible for it, though it appears he acted under an authority which was void.
    Certiorari.
    Motion quashed (in part).

      Barclay & Wallace for relator.
    (i) The judgments of the St. Lonis Court of Appeals are beyond and in excess of the jurisdiction of that court and should be quashed, because therein that court did not follow or apply the last previous ruling and controlling decision of the Supreme Court rendered on the identical facts, in relation to the same relator and its business. Am. Mfg. Co. v. City, 238 Mo. 267. (2) The judgments under' review on this writ should be quashed because they are in conflict with the last controlling decisions and rulings of the Supreme Court as to what payments are voluntary when made under protest, “in order to avoid prosecution and continue its business” to officers empowered to enforce penal tax laws. E. S. 1909, secs. 11461, 11617-18, 11646-8; Am. Mfg. Co. v. City, 238 Mo. 267; Westlake v. City, 77 Mo. 47; Bank v. Bank, 244 Mo. 554; Construction Co. v. Hayes, 191 Mo. 301; Loring v. City, 80 Mo. 468; Am. Brew. Co. v. St. Louis, 187 Mo. 367; Am. Brew. Co. v. City, 209 Mo. 600. (3) The said judgments of the St. Louis Court of Appeals should be quashed because in conflict with decisions of the Courts of Appeals on the decisive point on which the learned opinion herein by the St. Louis court has been placed. Voelpel v. Ins. Co., 183 S. W. 681; Niedermeyer v. University, 61 Mo. App. 654; Brown v. Worthington, 162 Mo. App. 508; Link v. Eeal Est. Co., 182 Mo. App. 531. (4) The judgments herein reviewed as rendered by the Court of Appeals not only misapplied the above-stated law as laid down by this court, but did not apply another settled principle heretofore declared by the Supreme Court and which, properly applied, would have led to a reversal of the judgment in question, notwithstanding Claflin v. McDonough, 33 Mo. 412, on which the Court of Appeals undertook to found its decision. That principle is that moneys illegally obtained by a public officer as a condition to granting a license without which the business of the victim cannot be continued, as in circumstances here disclosed, may, in all cases, be recovered back — being extortion and beyond the power of such officer.' Loring v. City, 80 Mo. 468; Maguire v. State Savings Assn., 62 Mo. 344; Brewing Co. v. St. Louis, 187 Mo. 367; Wood v. Telephone Co., 223 Mo. 537.

      E. C. Slevin for respondents.
    (1) The judgment in Claflin v. McDonough, 33 Mo. 412, was clearly controlling upon the respondents and it is the last previous ruling of this court upon the law and facts involved in the case decided by them. (2) There is nothing in Am. Mfg. Co. v. St. Louis, 238 Mo. 267, to indicate that the Supreme Court has taken a broader view than that announced in Claflin v. McDonough, in cases of this character where the suit proceeds against a public officer. (3) "While it may be true that unlawful exactions paid under the stress of urgent business necessity, may constitute duress, a mere threat of legal process cannot be so considered, “for the party may plead and make proof and show that he is-not liable.” Claflin v. McDonough, 33 Mo. 412; Wood v. Telephone Co., 223 Mo. 537. (4) If appellant deemed the exactions to be unlawful, ample remedy was afforded to it by a resort to mandamus. Butler v. Moberly, 132 Mo. -App. 172; State v. Alt, 224 Mo. 493.
   GRAVES, C. J.

— Certiorari to the St. Louis Court of Appeals in two 'cases, wherein the American Manufacturing Company is plaintiff and appellant, and Louis Alt is defendant and respondent. The cases were briefed and argued together in the St. Louis Court of Appeals and disposed of by that court by one principal opinion and a per curiam opinion following the principal opinion. In the principal opinion the Court of Appeals thus outlines the case it had before it:

“Plaintiff prosecutes this appeal from a judgment against it on demurrer to its petition. The petition is in three counts. The material averments presenting the question for consideration here are the same in each count and it is, therefore, unnecessary to set forth more than one.
“The first count of the petition is as follows:
““1. The American Manufacturing Company, plaintiff, states that it was at all times hereafter stated a corporation duly organized and incorporated under the laws of the State of West Virginia and licensed to do business in the State of Missouri and had at said times in the city of St. Louis an office and factories for the manufacture of bagging and was doing business in the city of St. Louis as a manufacturer; and that defendant, Louis Alt, is and was at said times the License Collector of and for the city of St. Louis, Missouri.
“ ‘2. Plaintiff further states that the greatest aggregate amount of raw materials of plaintiff on hand in the city of St. Louis at any one time between the first Monday of March and the first Monday of June of the year 1908 included jute butts, in the original packages, of the value of $75,855, imported by plaintiff, fróm foreign countries, for the purpose of being manufactured by it into bagging, and then awaiting manufacture.
“ ‘3. Plaintiff further states that said defendant demanded that plaintiff should pay (in addition to all taxes on all of plaintiff’s other raw material, finished products, tools, machinery, and appliances — which plaintiff paid), as a condition to the issuance of its license for the then succeeding year, a sum of money equal to a tax of 17 cents (imposed by the State of Missouri on each $100 of value of the greatest aggregate, amount of raw material of plaintiff on hand in said city at any one time between the first Monday of March and the first Monday of June of the year 1908) on each $100 of value of said imported material; and said defendant refused to issue to plaintiff a manufacturer’s license unless it paid him said sum amounting to $128.95; and, assuming to act by virtue of the authority vested in said office of License Collector, threatened to have plaintiff prosecuted daily in the courts of this State and daily fined for carrying on in the-city of St. Louis without a manufacturer’s license the business of a manufacturer; that plaintiff was not authorized to continue its business in said city without a manufacturer’s license from said defendant as said Collector, and each, day’s continuance “in- business without such license was a separate offense under the laws of the State of Missouri and ordinances of the city of St. Louis; and .said defendant was empowered under said statutes and ordinances to institute prosecutions against plaintiff for each day it continued its business in the city of St. Louis without said manufacturer’s license, and it was impossible for plaintiff to continue in business as a ■manufacturer in .said city without said license; and the plaintiff says that because of its liability to and the threat of such prosecutions and the duress thereby created, and the urgent business necessity of the situation, it paid to said defendant, in order to avoid prosecution and continue its business, under protest, said sum of $128.95, and thereupon received from said defendant a manufacturer’s license for the then succeeding year; and plaintiff was compelled to make such payment in order to continue in business as a manufacturer in the city of St. Louis.
“ ‘Plaintiff further states that, under the ' ordinances of said city of St. Louis, its failure to have acceded to said defendant’s demand for the payment of said sum, and secured its license, would have subjected it to the liability of a double assessment of its said property by said Collector for said city’s taxes, and also to a fine of five hundred dollars for each day it continued its said business in said city without said license. .
“ ‘4. Plaintiff states that .at and before the time of the payment of said $128.95 to said defendant he, the said defendant, was advised by plaintiff that said material upon which plaintiff was so required to pay said sum was imported from a-foreign country by said plaintiff and was then remaining in original packages awaiting manufacture by plaintiff; plaintiff further states that at and before said time it also notified said defendant in writing that said property was not a subject for taxation, and that same was claimed by plaintiff as wholly exempt therefrom; and that it, the said plaintiff, would institute and prosecute suit for the recovery of said sum so paid thereon.
“ ‘5. Plaintiff further states that said defendant had no right or authority to require the payment of any sum on said imported material and that the exaction of said -sum of $128,95 or any -part thereof by said defendant under color of his office was a wrongful exaction and said sum was unlawfully collected from plaintiff by said defendant.
“ *6. Plaintiff further states that it paid to said defendant said sum of $128.95 illegally exacted as aforesaid on the 19th day of September, 1908, and it prays judgments against said defendant for said sum oí $128.95.’
.“The court sustained defendant’s demurrer to each count of the petition in the view that the taxes were voluntarily paid and not under duress.”

In the brief for respondent Alt in the case before the Court of Appeals it is suggested that both parties agreed that there were two grounds averred by that demurrer, nisi, thus:

“Appellant therefore properly states the two questions for the consideration of this court:
“First: Were the payments made as disclosed in the two petition's voluntary or under duress?
“Second: If, under duress, is the respondent personally liable for the amounts so paid?”

It is clear that these two questions were in the case. As best we read the Court of Appeals’ opinion, it holds that there was no duress, but that even if there was duress, the officer is not individually liable. Contentions pro and con will be noted in the opinion.

I. • It is argued that the Court of Appeals’ opinion conflicts with views expressed by this court in American Manufacturing Co. v. City of St. Louis, 238 Mo. 267. The conflict, if there be a conflict, lies within a narrow compass. In the 238 Mo., supra, we had a case wherein the city was sued for taxes which it had received, and wherein it was alleged that the payment of them had been made through duress. Brown, J., in that case assumed as true, without discussing the question of duress. The only mention thereof is in this language:

“Defendant collected the three items of taxes last hereinbefore mentioned, aggregating $2161.34. Payment thereof being made under duress and to avoid prosecution under defendant’s ordiriance, and the defendant having received into its treasury $1578.26 oi said taxes, this action is brought to recover same.”

It is true that the allegations as to duress in that case are substantially as they are in the record now before us. However, in that case the plaintiff was suing the city which actually received and held the taxes, whereas in the case at bar the suit is not against the State, which actually received and has the money, but against the official who collected it and turned it over to the State. At least in some respects the two cases are not parallel. But on the simple question of duress they must be held to be the same. The pleadings are the same in effect, if not in exact language. The Court of Appeals in its opinion relies upon the case of Claflin v. McDonough, 33 Mo. 412, and says that we did not broaden the rule there announced in American Manufacturing Co. v. City of St. Louis, 238 Mo. 267. Whilst we did not fully discuss the doctrine of duress in 238 Mo., supra, we have had occasion to refer to that case and to fully discuss the question. In the case of American Manufacturing Co. v. City of St. Louis, 192 S. W. 399, October Term, 1916, of Division One of this court, Brown, Commissioner, with a full concurrence of the court, well said:

“It is admitted in the argument that the levy of the tax on this important material was in violation of section eight of article one of the Constitution of the United States vesting Congress with the power to regulate commerce with foreign nations, and therefore void. The only questions remaining in the case for our consideration are: (1) whether this tax was paid under such circumstances of duress or compulsion as entitles the plaintiff to recover it back from the city, and (2) whether, if plaintiff is entitled to recover it, it should have interest on the amount before judgment.
“The appellant says that under the facts shown, the payment of the illegal tax was voluntarily made and that the respondent is not therefore entitled to recover it back. It says that while the doctrine of duress, which formerly required an actual threat of immediate seizure of person or goods, has been broadened somewhat, it does not yet extend to the facts of this case. In that connection it cites Claflin v. McDonough, 33 Mo. 412, an action against the Collector of the City and County Revenue of St. Louis County, to recover money unlawfully exacted and paid as a tax for the purpose of obtaining a merchant’s license. The petition alleged 'that plaintiffs, refusing to pay such tax, would ■have been liable to and were threatened with prosecution by indictment therefor, entailing heavy expense and loss,’ and that therefore the plaintiff paid said tax under protest. Upon demurrer, the trial court held that the facts so cited did not show such compulsion as to authorize its recovery on that ground. In sustaining the judgment, this court said (pp. 415-16): 'It is not averred that the defendant had any authority to seize the persons or goods of plaintiffs, or threatened, or attempted to do either; but it is averred that they were threatened with an indictment, and they paid the amount to avoid the expense and annoyance of a prosecution. In our opinion, this does not make it a payment under duress. To constitute duress there must be a seizure of the property or arrest of the person, or a threat or attempt to do one or the other, or facts must be stated which tend to show or which warrant the conclusion that such an arrest or seizure could be avoided only by the payment of the tax demanded.’' While the facts pleaded in that case fall far short of constituting such threatened injuries as are shown here, it is contended that because immediate arrest or seizure of property are not among those injuries the necessary duress did not exist.
“It is true that the plaintiff was a corporation and there was no danger that its body would be seized and cast into prison, but its potential existence depended on its ability to transact the business for which it was incorporated. That this constituted property is evidence. That its destruction would work an injury as substantial as the seizure of a bale or two of its manufactured product is also evident. The law under which the license collector was proceeding provided that it should be his duty to prevent any persons carrying on any business, object or calling for which a license or license tax is required, without having a license or license receipt for that purpose,’ and that he should ‘report to the police court of such city all violations of law and ordinances relating to. license and license taxes.’ [R. S. 1909, sec. 9840.] This of itself constituted a threat to put the respondent out of business should he refuse to make the payment which the license collector demanded as a final and absolute condition to the issue of the license. For the purpose of enabling him to perform this duty penalties of a criminal nature were imposed providing for prosecutions from day to day while the manufacturer should attempt to prosecute its business without a license. The refusal to issue the license in itself constituted an assertion by the license collector that it would perform the duties enjoined by the statute and ordinances to prevent the respondent from continuing his business, and to this was added the specific threat of daily prosecution. In relation to this same question presented in a very similar case the Supreme Court of the United States in Railway v. O’Connor, 223 U. S. 280, 286, said: ‘But even if the State is driven to an action, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights by defense in the suit, justice may require that lie should be. at liberty to avoid those disadvantages by paying promptly. and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms. ’
“It is said that in this transaction the extraordinary remedy by writ of mandamus was available to compel the granting of the license upon tender of the amount due. So in case of arrest or levy under void process are habeas corpus or replevin. But it does not lie in the mouth of one who uses his extraordinary powers for purposes of extortion to dictate the particular remedy which his victim shall choose from among those which the law affords him. Remedial justice extends itself like a mantle over those things that come within the reason of the law, and when legislative ingenuity devises new plans for the enforcement of its enactment, the common law automatically extends corresponding protection to those that obey them. If the State elects to proceed by an action which places it upon an equality before the law with the tax payer, justice may be done to both alike in its prosecution and defense; but if it proceeds by methods of its own making calculated to compel the taxpayer to yield, whether right or wrong, to avoid an overpowering injury, it ought not to complain if, having the bone of contention in its own possession, it must try the right to it on equal terms.
“The city demanded the tax and refused to issue the license without its payment in its capacity as a governmental agent of the State. The refusal of the license amounted to an assertion that it would prevent the respondent from doing business until the unlawful demand should be complied with and for that purpose use all the means provided by its charter and ordinances so far as necessary to accomplish that result. It held in its hands the power of the executive as well as of the judicial department of the State Government for that purpose. The respondent could resist only in the courts, where, in theory at least, he would stand upon terms of equality before the law . Such equality demanded that he should not be required to place his hand in his adversary’s mouth before proceeding with the contest. To avoid this lie adopted a method which recommends itself for its fairness. ,He placed the money in the hands of the city that the interest of the public might not be imperiled while he tested his right. This is the method of which Judge Cooley in his splendid treatise on Taxation (3 Ed., p. 1506) says: ‘Any payment is to be regarded as involuntary which is made under a claim involving the use of force as an alternative; as the party of whom it is demanded cannot be compelled or expected to await actual force; cannot be held to expect that an officer will resist after making a demand ... It is sufficient if the circumstances are such that the waste and expense can be avoided only by payment,’ and the author cites a large number of cases fully sustaining his position, to which those curious for further information can easily refer.”

Our learned Commissioner has so well expressed what we had in mind in the case reported in 238 Mo., supra, .that we use his language in preference to our own. It but illustrates the assumption of duress in our case reported in 238 Mo. l. c. 273. It discusses the 33rd Mo., relied upon by our brothers of the Court of Appeals. In so far as that court announces in its opinion that the facts pleaded failed to show duress it conflicts with the views of this court. Whether its judgment is wrong and should- be quashed is another question. This because there is another live issue left in the case, which matter we take up next.

II. In view of the later discussions by this court, we have no doubt that the facts in this case (the case decided by the Court of Appeals) constituted such duress as would render the payment of the tax involuntary and under duress. Besides the case quoted from, supra, we have reached a like conclusion in Simmons Hardware Co. v. City of St. Louis, 192 S. W. 394, decided at October term, 1916, in Division No. One. We take it, however, that where the judgment and record of a Court of Appeals is before us upon writ of certiorari we may say (as we havo said in paragraph I, supra) that the opinion conflicts, in certain particulars with previous~ opinions of this court, and yet say that th~ judgment directed by the opinion should not. be quashed, if we find good reason in law for so saying. It is upon this theory that we take up the second branch of this case.

The tax involved herein is á State tax, and we must take judicial knowledge of the fact that in due course of law it has been paid by Mr. Alt, the collector, into the State Treasury. The question thus arises, is a revenue collector for the State (and such was Alt’s position: State ex -inf. v. Koeln, 192 S. W. 748, in the performance of his conceived duties under the law, liable personally or upon his bond for taxes which he has collected and turned over to the State, under the species of duress found in this case. We can well say, as in American Manufacturing Co. v. City of St. Louis, 238 Mo. 267, we did say, that the party for whose benefit the unwarranted tax- was collected and into whose treasury it went, should refund from that treasury the fund wrongfully collected. But that is not this case. In the 238 Mo., supra, we were making the city return that which it wrongfully received. It must be remembered that the jute butts involved in that case, as also in this, was not all the taxable property of the American Manufacturing Co. This property was but one item of the many. The collector was collecting at least a claim that was for the' most part valid and fully valid as he thought and insisted. In the collection of this tax the collector in the one case was the agent for the city and in the other the agent for the State. Ini this kind of a situation, we think the rule announced in Lewis County v. Tate, 10 Mo. 1. c. 651, is applicable. It is there said:

“The money thus collected was paid.over into thg county treasury. Whatever may be the liability of the county, and of this we are not authorized to give any opinion, it is clear that the collector is not liable. Where money is paid to an agent, for the purpose of being paid over to his principal, and is actually paid over, no suit will lie against the agent to recover it back.”

In Mechem’s Public Offices and Officers, sec. 694, it is &<ad:

£' (Vhere money illegally collected by color of law still . emains in the hands of the collector it may be recovered from him by the party paying it, but if it has been paid over by the collector to the proper authorities, he is no longer responsible for it, though it appears that he acted under an authority which was void.”

In Cooley on Taxation (3 Ed.), p. 1482, it is further said:

“But in general, if the money, though actually collected by compulsion, is paid over to the proper receiving officer before suit brought, the collector is protected, and this principle has been applied to cases in which the officer’s authority was. void for unconstitutionality or other reason”’

This rule is supported by many cases found cited under the text, and we think it the safe rule. Of course, if the money had been in the hands of the collector at the institution of the suit, a different rule might have applied. But it had long since reached the State Treasury. To hold a collector responsible individually would be a harsh rule ánd one which we do not care to follow. The Legislature, upon proper application, would no doubt reimburse the plaintiff from the State Treasury.

We do not agree to the opinion of the Court of Appeals in so far as it says that there was a voluntary payment of these taxes, but the judgment entered by. that court is a proper one and should not be quashed. The Constitution makes the opinion of the court a part of its record, and we will quash such portion of its record for the reason assigned in our paragraph, one, bnt will permit its judgment to stand, because for the right party. It is so ordered.

All concur, except Williams J., not sitting, and Bond, J., who dissents on ground of jurisdiction only.


author: WALKER, P. J.

text:
    JOHN W. BRAEUEL et al., Appellants, v. JOHN F. REUTHER et al.
    Division Two,
    February 17, 1917.
    1. WILL CONTEST: Death of Contestants: Revivor: Abatement. When a will contest has once been instituted by persons who have a direct pecuniary interest in the final determination of the question of whether or not there is a will, the burden of proving the will then rests upon the proponents, and the contest must go forward to a final adjudication; and if the contestants die, the action does not abate, and there is no absolute necessity of a revivor in the name of those who have a financial interest in the result, although upon proper application they may be substituted as contestants, but the administrators of the contestants are not proper parties.
    2. -: -: —=-: Administrator. Upon the death of the contestants of a will, their administrators should not be substituted as parties. An executor or administrator is not, under the statutes, an interested party to a will contest, either active or nominal. The statute limits the right of- action to “persons interested in the probate of wills,” and an executor or administrator is not such a person.
    Appeal from St. Louis City Circuit Court. — Hon Daniel D. Fisher, Judge.
    Motions overruled.

      Safford & Marsalek for appellants.

      Morton Jourdan for respondents.
   WALKER, P. J.

— Anna Zwingmann died in the city of St. Louis in April, 1912, leaving personal property therein. On April 23, 1912, there was admitted to probate in the probate court of said city a paper purporting to be her last will. In May, 1912, the plaintiffs herein, brothers of the deceased, brought suit in the circuit court of said city to set aside the will on the grounds of fraud, duress and mental incapacity of the testatrix to make a will. At the April term, 1913, of the circuit court of said city a trial was had therein resulting in a finding and a judgment that the paper so admitted to probate was the last will and testament of the said Anna Zwingmann. Thereafter plaintiffs perfected an appeal from said judgment to this court. The case was set for hearing on said appeal on the 19th day of October, 1916, and on that day was taken as submitted. It now appears that both of said plaintiffs are dead, one having died in May, 1915, and the other in July, 1916. On the 7th day of November, 1916, the deaths of the plaintiffs were suggested to this court and a motion was made to revive in the name of their administrator, who, as stated in said motion, had been appointed by the probate court of the city of St. Louis in October, 1916, but was not one of plaintiffs’ former counsel in the contest proceedings. A motion to abate the action has been filed by counsel for respondent. These motions will receive consideration in their order.

It is necessary, under the statute (Sec. 555, E. S. 1909) to authorize an action to contest a will, that those who instituted same shall have a direct pecuniary interest in the final determination of the question as to whether the instrument is the' last will of the decedent. We said this much in Watson v. Alderson, 146 Mo. l. c. 343, and expressive of the same conclusion but in different terms, it was said in State ex rel. v. McQuillin, 246 Mo. l. c. 691, that the statutory interest referred to must be a financial interest in the estate and one which would be benefited by setting aside the will; also in Teckenbrock v. McLaughlin, 246 Mo. 1. c. 719, it was held that generally a direct pecuniary interest at the time of the probate of the will is a condition precedent to the right to contest; and in Gruender v. Prank, 267 Mo. 713, the latest expression of this court on the subject, the language of the preceding cases as to what constitutes an interest within the meaning of the statute is quoted with approval.

The plaintiffs were the sole contestants. So far as the record discloses they were the only persons capable of inheriting from the decedent had she died intestate. The setting aside of the will, therefore, would have inured to their pecuniary benefit and as a consequence they were interested in the devolution of the property of the decedent to such an extent as to authorize them to institute the pending action. Plaintiffs’ right to institute the action having been determined, what effect has their death pending the appeal upon this proceeding? If this action is in no wise different in its material features from the ordinary civil proceeding it will survive or continue, and may, upon compliance with our rules of procedure (Art. 10, chap. 21, R. S. 1909) applicable in such cases, be revived in the name of the party entitled to succeed plaintiff in the prosecution of the action. This follows from the language of the statute (Sec. 1916, R. S. 1909), which provides that “no action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue.”

A proceeding to contest a will, however, is possessed of peculiar features; after the will has been probated an action questioning its validity casts upon those who claim under it the burden of proving it. Although the contestants who have brought the action may introduce no evidence and may even abandon the contest, the burden of proving the will still devolves upon those who would maintain it. While they are not required to prove a negative, they must .prove the affirmative facts essential to the execution of a valid will. [Bradford v. Blossom, 207 Mo. l. c. 228.] Prom this ruling, which is but a reiteration of a like doctrine announced in many preceding cases, it follows that the question as to the survival or continuance of actions of this character in the event of the death of parties thereto is eliminated from the equation. Upon the action being brought the parties thereto become of minor importance, the prime purpose of the proceeding being to determine whether there is a will or not. The importance of this concrete' question being paramount, we might well content ourselves with the course that having regularly acquired jurisdiction we will, regardless of the parties and with indifference to the motions filed herein, review the record and render judgment thereon; but it is meet and proper that other questions submitted pro and con in regard to these motions be determined.

The appointment of the administrator of the estates of plaintiffs made below, and the motion filed here to revive in his name, was evidently upon the assumption or theory that in the absence of this course the action would abate. This result would not have followed, as we have shown, on account of the nature of the action and the purpose it seeks to effect. There being no abatement, the motion to revive was therefore without merit.

But viewed from another vantage than that which presents itself on account of the nature of the action, are there other reasons existent for the nominal substitution of the administrator for the plaintiffs?

The purpose of the appointment of an administrator is that he may manage and settle the estate of the .intestate. The limit of his power is to be found in the statutes which authorize his appointment. An anaylsis of these statutes is pertinent. Under section 101, Revised Statutes 1909, the administrator is authorized “to commence and prosecute all actions which may be maintained and are necessary in the course of his administration, and defend all such as are brought against him.” A will contest is clearly not within this class. It is in no sense a property right and is therefore not such au action as is authorized to be maintained by the administrator in the course of his administration within the meaning of the section quoted. Being a mere right of action a judgment in the administrator’s favor would result in the recovery of nothing more than the establishment of the right. Such is the character of this right that it is neither assignable nor descendible (Storrs v. St. Luke’s Hospital, 180 Ill. 368), and as the administrator, if - successful in maintaining it, would recover nothing tangible, it was not contemplated by the statute that he bring suit, to establish it. As was aptly said by the Supreme Court of Ohio in discussing a correlative question: “An executor or administrator is not a necessary party where there are no debts and no personal property.” [Andrews’ Exrs. v. Andrews’ Admrs., 7 Ohio St. 143.] This conclusion accords with reason and it was so held in Ligon v. Hawkes, 110 Tenn. l. c. 521, in construing a statute of that state similar in all of its material features to that under review. An Illinois statute upon the same subject has received a like construction. [Staude v. Tscharner, 187 Ill. 19.]

Section 104, Revised Statutes 1909, provides that “executors and administrators shall prosecute and defend all actions commenced by or against the deceased, at the time of his death, and which might have been prosecuted or maintained by or against such executor or administrator.” This section simply means that executors and administrators may prosecute and defend such actions as may have been brought by or against the decedent at the time of his death which might have been prosecuted or maintained by or against such executors or administrators. In other words, the class of personal representatives mentioned cannot under this statute prosecute and maintain actions unless they were in a condition to bring a like suit if it had not been brought by the deceased. [Ferrin v. Kenney, 51 Mass. 294; Schreiber v. Sharpless, 110 U. S. 76.]

Section 105, Revised Statutes 1909, cited by the movers of the motion to revive, has no application to the power of administrators in a case of the character here under consideration. This section authorizes administrators, under the conditions therein named, to prosecute and defend actions for torts to the property, rights or interests of the decedent.

There is therefore neither in the nature of the action to contest a will nor the statutes defining the power of administrators any express authority conferred upon them to institute or maintain this character of action. In Teckenbrock v. McLaughlin, 246 Mo. l. c. 719, we said that the right to contest a will is statutory and that an interest in the probate of same is essential to the existence of this right. This has ever been the rule in this State. Gantt, J., speaking for this court, said in effect in Stowe v. Stowe, 140 Mo. l. c. 604, that “wills are creatures of the statute and that proceedings to set them aside are vested' exclusively in courts of law and that this rule of construction has been adhered to by this court from Lyne v. Marcus, 1 Mo. 410, down to and including the case then under consideration. ’ There has been no variance since in this conclusion. Courts elsewhere have reached the same conclusion. [United States v. Perkins, 163 U. S. 625; Kochersperger v. Drake, 167 Ill. 122.] The right of action to contest a will being purely statutory, it is therefore in derogation of the common law and hence subject to the rule that its provisions must be strictly construed. Thus construed the procedure prescribed, or in other words the rights granted and the powers conferred, must be limited to the express terms of the statute. Thus limited there is an absence of authority in an administrator to either institute or maintain a suit to contest a will.

If, however, another well established rule of statutory construction be invoked, viz., that remedial statutes are to be liberally construed (Rozelle v. Harmon, 103 Mo. 339, 12 L. R. A. 187) and it be conceded that the statute in regard to the contest of wills is within this class, then upon a reference to its express terms we find that “only persons interested in the probate of wills” can be made parties to contests of same, and bearing in mind the character of this interest, as frequently defined by this court, the conclusion follows that although the statute may be remedial in its nature and hence subject to liberal construction, such construction cannot extend beyond its plain terms (Caldwell v. Renfro, 99 Mo. App. 376), which limit the right of action to those named.

A persuasive ruling in support of this conclusion is to be found in the determination of an analogous question in the case of In re Estate of Sotilard, 141 Mo. 642. There the court, in passing upon the question as to the liability o£ an estate for expenses incurred in a will contest, said in effect that “the executor of a will is entitled to be reimbursed out of the estate for necessary expenses incurred by him in having the will probated, but expenses incurred in the circuit court growing out of a contest of the will should be paid by the parties interested in that proceeding, viz., the heirs or the legatees.” If the estate is not to be burdened, as is held in this case, with expenses of litigation of this character, it would seem to follow that the executor or administrator should not be made even a nominal party. His presence in the proceeding adds nothing to its progress or purpose; and, to employ a homely simile, he would constitute “a fifth wheel” in the chariot of procedure.

The rulings of courts of last resort in other jurisdictions in similar cases add force to the correctness of the conclusion here announced. In Diffenderffer v. Griffith, 57 Md. 81, the court held, in a case involving the validity of a will, that the trial court upon the suggestion of the death of one of the contestants had no power to substitute a new party in the place of the deceased, 'but that the survivor could effectively proceed in the trial of the issue; that the right to prosecute a suit to contest a will did not devolve upon the executor or personal representative of the deceased, because the latter’s right in this regard was purely personal and died with him; and that it was not incumbent upon the personal representative to participate in the proceedings, so far as any duty to the estate of the deceased was concerned. This ruling was based on the absence from the Maryland code, as is the case here, of any authority for substituting parties to suits in proceedings of this character. In California various phases of the question here involved have received consideration. In Roach v. Coffey, 73 Cal. 281, it was held that an administrator cannot represent either side of a contest between heirs, devisees or legatees contesting the distribution of the estate. In the case of In Re Sanborn, 98 Cal. 103, and that of In Re Hickman, 101 Cal. 609, the court held that an administrator, as such, has no interest in the estate other than to discharge the duties devolving upon him under the law. In Bates v. Ryberg, 40 Cal. 463, which is cited with approval in the Matter of the Estate of Marrey, 65 Cal. 287, the court held that an .executor cannot maintain an appeal from an order of distribution of the assets of an estate on the ground that the property was improperly divided between the legatees. In the case of Storrs v. St. Luke’s Hospital, 75 Ill. App. 152, it was held that the right to contest a will should be limited to persons interested therein; that this was a personal privilege and when they died the effective force of the statute, so far as they were concerned, died with them; that it did not descend to their heirs nor survive to their administrators (citing cases).

Our conclusion being evident that the substitution of an administrator is not necessary in the event of the death of a contestant in cases of this character, the question naturally arises as to who will represent the interests of such contestants in the event of their death pending a proceeding, as in the case at bar. We have heretofore indicated in discussing another phase of this matter that such representation is not necessary. The purpose of the proceeding is to determine whether or not there is a will. The contestants under our law are mere instruments in effecting this purpose, and the suit having been brought by them cannot be dismissed, but must be finally determined although the contestants acted voluntarily in the first instance in bringing the action. Having so acted their powers cease except to see that the proponents establish the will. Whether, however, they see to this or not is a matter of indifference, because the action having been begun the duty devolves upon the trial court to see that it is finally determined, and this rule has a like application when cases of this character reach this court upon appeal. From this it follows that the motion to revive in the name of the administrator should be overruled.

The reasons stated in support of this conclusion are a sufficient answer to the motion filed by respondents herein that the action should abate. Even if the action had been improperly brought so far as the parties plaintiff were concerned, we have held that proper parties in interest might be substituted therefor on the ground that such substitution did not change the nature of the action but simply properly submitted the issues for the court’s consideration. It was so ruled in the case of Lilly v. Tobbein, 103 Mo. 477. The motion to abate is therefore overruled.

Under the- ruling in the Lilly-Tobbein case others who have such an interest in the probate of the will herein as is defined by the statute may, upon proper application therefor embodying a satisfactory showing of such interest, be made parties plaintiff hereto; but whether such application is made or not the court having acquired jurisdiction will finally determine the matter at issue.

All concur.


author: WILLIAMS, J.

text:
    W. R. BINGAMAN et al., Appellants, v. J. M. HANNAH et al.
    Division Two,
    April 10, 1917.
    1. WILL CONTEST: Testamentary Capacity. Where if the contestants’ evidence is to be believed the testator was without sufficient mind to make a will, and if the evidence for proponents is to be believed he had mind sufficient to make a will, the question of his testamentary capacity is one of fact to be decided by the jury.
    2. -: Due Execution of Will: Knowledge of Contents. Where there is substantial evidence that testator was possessed of testamentary capacity and the uncontradicted evidence is that the will was read aloud to him, the proper conclusion is that he knew its contents before he affixed his mark to it.
    3. -: -: Witnessing: At Request of Testator. The statute does not require that the testator shall verbally request the subscribing witnesses to attest his will, and the will cannot be destroyed on the sole ground that he did not himself make such request. If after the will was read aloud to testator and he had announced his assent thereto and had affixed his mark to it, the scrivener, in his presence and hearing, requested two competent persons to subscribe their names as witnesses, and they did so in testator’s presence, the attestation met the requirements of the statute.
    4. MOTION TO STRIKE OUT ANSWER: No Exception. An assignment that the trial court .erred in overruling contestants’ motion to strike out proponents’ amended answer on the ground that it contradicted the original answer, cannot be reviewed on appeal unless an exception was .saved to the ruling and the exception and the motion itself were preserved in a bill of exceptions.
    5. WITNESS: Ruling of Incompetency: No Offer of Testimony. The ruling of the trial court that a certain witness offered by appellants was incompetent to testify will not be reviewed on appeal unless the ruling was followed by an offer to prove what the witness’s testimony would be if he were permitted to testify.
    6. WILL CONTEST: Subscribing Witnesses: Cross-Examination. Where the subscribing witnesses manifest an unwillingness to testify to the mental condition of the testator at the time he subscribed the will, the trial court does not abuse its discretion by permitting proponents to cross-examine them, though their own witnesses, by asking them if they had not sworn in the probate court, upon the original probate of the will, that testator was of sound mind at the time he signed the will.
    7. -: Subscribing Witnesses: Instructions: Knowledge of Testator: Presence. The instructions should clearly convey to the jury the idea that in order to find that the will was properly witnessed they should find that it was signed by subscribing witnesses in the presence of the testator and with his knowledge and consent. The word “presence” necessarily includes knowledge of the act and acquiescence therein by the testator, and they can be shown in different ways, namely, by his verbal request, or by any act or conduct upon his part, or by any other evidence which would show that he had knowledge of the attestation and consented to or acquiesced therein.
    Appeal from Wright Circuit Court. — Hon. G. H. Blanker, Judge.
    Affirmed.

      J. N. Burroughs for appellants.
    (1) Where there is no evidence tending to show that the testatrix had any knowledge of the contents of the will as drawn, and where it does not dispose of her •property as she had desired and had directed, it will be held that it was not the will of the testatrix. Bradford v. Blossom, 207 Mo. 207. (2) The burden is on the proponents to prove the due execution of the will and that the testator had mental capacity to know and understand what he was doing. That burden they must assume, even though contestants introduced no evidence. Cowan v. Shaver, 197 Mo. 203. (3) The provision of the statute which requires that every will shall be signed by the testator or by some person by his direction is, mandatory; and if it is not complied with, the will is void. Hospital Assn. v. Williams, 19 Mo. 600; Simpson v. Simpson, 27 Mo.' 288; Elliott v. Welby, 13 Mo. App. 19; Catlett v. Catlett, 55 Mo. 330; Walton v. Kendrick, 122 Mo. 504. ■ (4) In order to make a will valid the witnesses must sign the instrument by request of the, testator. Miltenberger v. Miltenberger, 78 Mo. 27; Elliott v. Welby, 13 Mo. App. 19. (5) Upon the issue of devisavit vel non, the court should take the proof and establish or reject the will. McMahon v. McMahon, 100 Mo. 99; Benoist v. Mnrrin, 48 Mo. 48; Jackson v. Hardin, 83 Mo. 184; Hughes v. Burriss, 85 Mo. 665; Bradford v. Blossom, 207 Mo. 228. (6) The motion of plaintiffs to strike out the amended answer of defendants was well taken and should have been sustained. The amended answer was directly and absolutely contradictory of the original answer. Pt was a stultification of defendants and is not permitted under the law. An admission contained in a pleading is conclusive on the pleader. Kessner v. Phillips, 189 Mo. 528. Where the answer contains a general denial, there can be no implied admission of any fact stated in the petition. State to use v. Samuels, 28 Mo. App. 649. (7) Husband of a wife interested in setting aside a will is a competent witness in the cause. Roberts v. Bartlett, 190 Mo. 703. (8) It was error to permit defendants to ask the subscribing witnesses whether they had not sworn in the probate court that the deceased was’ of sound mind. It was also error for the court to refuse the instruction excluding evidence of the probating of the claimed will.

      Green, Wayland & Green for respondents.
    (1) The -influence of a wife or child upon a testator will not avoid the will, if the influence is exercised or exerted in a reasonable manner without fraud or deception. Crowson v. Crowson, 172 Mo. 691; Thompson v. Ish, 99 Mo. 160; Maddox v. Maddox, 114 Mo. 35; Bonsai v. Randall, 192 Mo. 525; Seibert v. Hatcher, 205 Mo. 97. This testimony of the declarations of the testator was proper, for the reason that it showed a fixed and definite purpose of long standing on part of the testator to give his wife the property in controversy. Jones v. Thomas, 218 Mo. 508. (2) Instructions numbered 4 and 11, complained of as error by plaintiff, were authorized by Seibert v. Hatcher, 205 Mo. 97, .and Hughes v. Rader, 183 Mo. 630. (3) The court did not err in overruling plaintiff’s motion to strike out amended answer of defendants, and if error, it would warrant a judgment for plaintiffs, or a reversal for a new trial. Under the general denial the affirmative of every allegation of the petition (except as to whether or not the writing in question was in fact the decedent’s last will and testament, the execution of same and the mental capacity of the testator at the time of its execution), would have rested upon the plaintiffs. Bradford v. Blossom, 207 Mo. 177; Harris v. Hays, 53. Mo. 90; Sehr v. Lindemann, 153 Mo-. 276; McFaddin v. Catron, 120 Mo. 252; Cowen v. Shaver, 197 Mo. 203. Every issue in this case could have been tried under the general denial. A majority of will contests are tried on answers of general denial. Hogan v. Kinchey, 195 Mo. 530. “Amendments are favored and should be liberally allowed in favor of justice.” House v. Duncan, 50 Mo. 453; Carr v. Moss, 87 Mo. 447. “The discretion of the trial court will not be interfered with on appeal unless it is manifest that it has been abused.” Carr v. Moss, supra. (4) Under Sec. 6354, R. S. 1909, it is held that “If the wife (or husband) is a party to the suit and has a real interest in the subject which would be affected by the judgment, then she (or he) is a competent witness.” Layson v. Cooper, 174 Mo. 223; Dunifer v. Jecko, 87 Mo. 285; Stefen v. Bauer, 70 Mo. 399; Wood v. Bradley, 76 Mo. 33; Bell v. Railroad, 86 Mo. 73; O’Brien v. Allen, 95 Mo. 73. To qualify either to testify, he or she must he not only a party in the suit, but must have a real interest in the subject which would be affected by the judgment. Fugate v. Pierce, 49 Mo. 441; Hariman v. Stowe, 57 Mo. 93; Scrutchfield v. Santer, 119 Mo. 615. (5) Testator had sufficient mental capacity to make the will. Sehr v. Lendemann, 153 Mo. 288; Hamon v. Hamon, 180 Mo. 701; Holton v. .Cochran, 208 Mo. 314; Riggin v. College, 160 Mo. 570; Weston v. Hanson, 212 Mo. 248; Hughes v. Rader, 183 Mo. 63. (6) The will was properly executed. “The mere fact that one of the beneficiaries, who drew the will, requested the attendance of the witnesses, and the fact that testatrix does not proclaim the paper to be her last will and testament, nor verbally request the witnesses to attest it, are not sufficient to annul the will on the ground of noncompliance with the statute.” Hughes v. Rader, 183 Mo. 630; Lindsey v. Stephens, 229 Mo. 615.
   WILLIAMS, J.

— This is a suit to contest the alleged will of Henry H. Bingaman, deceased. By the alleged will said Bingaman (for brevity we will hereinafter refer to him as the testator) devised and bequeathed practically all of his property consisting of sixty acres of land and about four hundred dollars worth of personal property, to his wife Belle Bingaman. Testator died on the 29th day of June, 1909, and left no children surviving him. Testator’s wife died in 1911, and shortly afterwards this suit was instituted by the heirs of the testator against the defendants who are the heirs of Belle Bingaman. Trial was had before a jury, in the circuit court of Howell County, which resulted in a verdict and judgment establishing the will. Thereupon plaintiffs duly perfected an appeal.

The appeal was first taken to the Springfield Court of Appeals, but that court, on the theory that the title to real estate was involved, certified the case here.

The evidence upon the part of the defendants tends to establish the following facts:

On the 25th day of June, 1909, the day the will was written, testator’s brother, William Bingaman, informed C. TI. Cobb, a lawyer and notary public, that he was wanted at the testator’s home to prepare a will. Mr. Cobb thereupon went to the testator’s home and after talking with testator’s wife, out of the presence of testator and without consulting the testator, drew the will. After drawing the will, he, together with other persons, went into the room where testator lay sick and thereupon read the will to the testator. Thereupon testator’s wife stated that everything went to her and the testator nodded his head and “seemed” to consent. Testator’s wife and one Bud Hannah then raised the testator up in bed, whereupon the testator, with the assistance of Mr. Cobb and those around him, made his mark on the will. It appears that the testator was not able to speak and he did not request the subscribing witnesses to sign the will. In fact he made no audible remarks concerning the transaction. Mr. Cobb, in the presence of the testator, and in his hearing, did' request C. S. Hill and J. B. Blackford to sign the will as witnesses, which they did in testator’s presence. In answer to question, Mr. Cobb said that he did not know the mental .condition of the testator at that time, because he did not have any conversation with him; that he seemed to bé a very sick man, but that the witness couldn’t say as to his mental capacity. Over the objection of plaintiffs, Mr. Cobb was permitted to testify that at the original probate of the will he had testified that the testator was of sound mind.

C. S. Hill, one of the subscribing witnesses, testified that he was in the sick room about an hour and one-half just before the will was signed; that testator asked for a bed pan, speaking in an audible tone; that this was the only remark that testator made during the time that witness was in the room. After the will was read the witness heard testator’s wife ask him if he wanted her to have everything and testator nodded his head, indicating yes. Witness signed the will, at the request of Mr. Cobb,, in the presence of testator. Witness stated that he was unable to testify concerning testator’s mental capacity, but admitted that at the original probate he testified that testator was of sound mind at the time the will was made.

J. B. Blackford testified that he signed the will as subscribing witness upon the request of Mr. Cobb, in the presence of the testator; that the will was read to the testator and that the witness did not hear the testator make any objections to it. Witness didn’t know whether testator recognized him when he first went into the room,' ■but stated that he thought he did and that the testator held out his hand and shook hands with him, but nothing was said. When the witness left he said good-bye to the testator, but testator made no reply, the witness saying that testator seemed to appreciate it but didn’t say a word. The witness said he could not say as to the mental condition of the testator.

Dr. R. S. Spears testified that he attended the testator during his last illness, visiting him once. or twice daily during the latter part of his illness; that testator was suffering from diarrhea and was passing mucus and a little blood. On the day the will was written, testator’s bowels passed frequently, but the testator talked freely and “seemed to realize that he was not getting on. ’ ’ The doctor testified that he asked the testator the questions that he usually asked a patient and that he seemed to realize all that was going on; that his temperature was approximately 102 degrees. The doctor was at the testator’s home twice.on the day the will was drawn, first about ten o’clock in the morning and later about five o’clock in the afternoon. The witness further said that all through his sickness the testator’s mind was “exceptionally clear,” considering he was such, a sick man; that there were times when opiates had to be' administered to him, “but when we did arouse him his mind would be clear; after you let him sleep, he was like any other man under the influence of medicine. ’ ’ On cross-examination this witness testified that about two days before the will was written, testator’s brother, Bill Bingaman, asked him if he thought testator was capable of making a will. The doctor replied that he thought he was, and told him that he would ask Dr. Thornburgh what he thought about it. He thereupon went to the buggy 'where. Dr. Thornburgh was and stated: “Mr. Bingaman has asked me if I think Henry is capable of making a will and I answered that I thought he was. What do you think about it? Dr. Thornburgh replied, ‘Certainly he is capable of making a will’ and remarked that he never saw a man as sick as Henry was that had as clear a mind.”

Mrs. Belle Breedlove, a cousin of the testator, testified that she saw testator on the day the will was written ; that he shook hands with her and seemed to recognize her, but did not speak.

Dr. A. Simon, a retired physician, visited testator the day the will was written. He testified that as he went into the sick room testator nodded his head and reached out his hand and shook hands with him. In reply to a .question asked by the witness as to how the testator was feeling he replied, “Pretty bad.” The witness said he didn’t know anything about the mental condition of the testator.

John Mahann sat up with testator the night after the will was made. Testator spoke to witness when he went into the room and shook hands with him. Witness said, “Howdy,” and testator replied, “Howdy, John.” Witness then asked him how he was getting along and testator repiled that he was in “pretty bad shape.”

W. T. Clark testified that he also sat up with testator on the night after the will was drawn and that testator recognized him and recognized any body that came into the,room. Witness did not speak to testator after he went into the room, but said that whenever testator wanted “the vessel” he would throw up his hands and make a sign.__

E. P. Riddle testified that he was at testator’s home until about noon on the day the will was drawn and that testator’s mental condition seemed to be good and that he seemed to know everything. This witness heard a conversation that morning between Billy Bingaman and testator about going after a notary public to draw the will, in which conversation testator’s brother said, “How will Hence Cobb do?” To which testator replied, “He„ will do.” This witness further said that, the fall before, testator told him that he intended to give what he had to his wife. On cross-examination this witness testified that it was about sunrise when he first went into the sick room and he there found testator’s wife crying. “She told him [testator] that if he hadn’t said anything about it, she wouldn’t have mentioned it for the world. That was the first remark I heard when I went in. He said, ‘When Billy comes, you tell him what you want.’ ”

Defendants introduced evidence that testator was over fifty years old at the time of his death and that this suit was instituted May 29, 1911.

The evidence upon the part of the plaintiffs was substantially as follows:

Dr. A. H. Thornburgh testified that on the 23rd day of June he visited the testator as consulting physician with Dr. Spears, and from that time on he visited the testator once or twice a day; that on the 23rd day of June testator was suffering from painful, bloody diarrhea a.nd extreme exhaustion; that they administered hypodermic injections of morphine for the pain and some strychnine and bismuth and pepsin; that on the 25th day of June (the day the will was written), testator was much weaker physically; that the disease had produced a condition called “shot,” which had a tendency to greatly lower the mental activity and that mentally the testator was “indifferent, sluggish and cloudy and had to be aroused to get him to notice anything;” that “a man in that state might be aroused, if spoken to directly or by calling him by name, and he might know you and perhaps he would answer your question; perhaps in a moment he would have forgotten it, in other words, his surroundings would make no impression upon him, and the man or woman who passed through that condition, if they recover, may have no memory for perhaps days of what passed during their sickness, yet during their sickness they may be able to answer questions and perhaps recognize people. As a matter of fact a man or woman in that condition has no power of discernment. It begins .with a cloudiness of the mind, and perhaps a muttering and delirium of the mind, and as the disease progresses, the patient sinks more and more and passes into a semi-comatose state and finally sinks into coma, from which the patient is aroused with difficulty, and finally dies with exhaustion.” That during the first three days the doctor visited testator they gave him enough morphine and opiates to quiet the pain and that this would tend to lessen the power of concentration and judgment. The following question was asked and answer made: “Q. On the 25th of June, in your judgment did Henry Bingaman have sufficient mental capacity to understand the nature and extent of his property and to get in mind his various relatives and those to whom he desired to give and did give his property, if he had been called upon to make a will without the aid or suggestion of any other person! A. I don’t think he had.” On cross-examination this witness stated that he may have said to Dr. Spears the following: “He may be capable of making a will, but I doubt his ability to do it without outside influence or direction;” and that he said to Dr. Spears, “I think we have a very sick patient. It seems to me that if he has any business that he yants to transact, he ought to be doing it right away.” The witness did not remember that he told Dr. Spears that the testator was “thoroughly competent to make a will.”

Mrs. John Spencer and Mrs. Mart Cooper, nieces of the testator, testified that they went into the sick room at nine o’clock on the morning of the day the will was made, but that testator didn’t recognize them and that they didn’t think him competent to transact business at that time.

C. B. Faurot testified that he sat up with testator the night before the will was made. In response to an inquiry testator told the witness that he was feeling “pretty tough.” That testator knew the witness and Ben Skinner, but seemed to be in a stupor most of the time. The witness did not think him capable of attending to any business. Whenever the testator desired attention during the night he would make a motion with his hand.

Miss Laura Homringhausen testified that she was a professional nurse and that she went to the home of the testator two days before he died (this was two days after the will was made). Testator was then in a state of coma at intervals. His bowels moved twenty or twenty-four times that night. The nurse would arouse-, him to give him medicine and the patient would arouse himself when he needed attention. Sometimes he would not arouse himself when lie needed attention and, as a result, the bed clothes had to be changed several times during the night.

Bert Hollingshad testified that he worked at testator ’s home eight or nine days before his death; that on the morning of the day the will was drawn, witness went into the sick room and asked the testator how he felt and that testator “kinda rolled his eyes up,” looked at witness and said, “I don’t know you.” He didn’t think testator was able to transact business that morning. Witness further testified that one morning prior to this time testators wife said, “You folks go ahead and eat breakfast, I am going in and talk to Henry about making a will.” Later the witness went into the sick room where testator and his wife were talking about a will and heard the testator say, “I don’t want to make a will, right now at the present.” That his wife said. “I’d rather you would have-some body come out and have a will made out so I would be safe.” This was three days before the will was made.

Ben Hollingshad testified that after testator’s death he had a conversation with testator’s wife in which she told him that she had often tried to get her husband to make a will before he did and that at last she told him she was going to have a will made and “they sent for Mr. Cobb.” This witness testified that he had another conversation with testator’s wife shortly prior to her death in which she told the witness" that she “was about to get into trouble over this will and she was figuring on transferring this property to her brother Robert Hannah.” She asked the witness what he thought about it and he .advised her that he did not believe she could “head off litigation” that way.

Mrs. Sarah Howell testified that she had a conversation with Belle Bingaman after testator’s death in which testator’s wife stated that she came very near being left without plenty and that she saw that if she didn’t stay with her husband and watch him pretty close that he would not make a will; that she hired a girl to do the work and that she and her brother waited on testator and that she didn’t believe her husband would have made a will had testator been left with the Bingamans.

Mrs. Dave Willis testified that she had a conversation with Mrs. Bingaman after her husband’s death in which she stated that when she first began talking to testator about making a will he stated, “I have got no will to make;” that she kept talking to him about it until he finally agreed to it and they sent and got a man to draw the will; that she and her brother stayed with testator day and night to keep the other folks away, and that if this had not been done testator would never have made a will.

S. J. Calloway testified that four or five days before the will was made some people whom testator had known all his life called to visit him. After they had gone testator whispered to witness, “Who are those boys?” Witness did not think testator competent to transact business. Three or four days before the will was made testator’s wife sent for the witness to come and talk to her husband about making a will. The witness went into the sick room and said, “Henry, I don’t want to alarm you, hut you are a very sick man, you may live longer than me, but we haven’t the promise of another day; I want to know if there is anything that bothers your mind; have you a will made; do you want to make a will?” To this testator replied, “No, I don’t.” After the testator’s death the witness saw his wife in town and she said to witness, “Old man Willis is here; he is here to break np the will or destroy it; he is here to make me trouble.” Witness replied, “Maybe not.” She then said, “You will see that is what he came for.”- She then asked the witness to go and see what Mr. Cobb would say about testator’s being in his right mind when the will was made. On cross-examination the witness testified that Billy Bingaman married his sister.

John Bingaman testified that testator was over sixty years old at the time of his death and always wrote his own name. The witness was at testator’s home the days the will was drawn. He did not think testator competent to transact business that day. On cross-examination this witness testified as follows: “Cobb drew up the will on the back porch; she [testator’s wife] went into the room, got a chair and sat down by his [testator’s] head and said, ‘Now Henry, you want me to have everything you have got, don.’t you Henry?’ Then Mr. Oobb said, ‘Real estate and personal property.’ Then she said, ‘Yes, Henry, everything.’ Then he'nodded'his head, you could barely tell that he nodded his head. Henry never said a word; in'my judgment and opinion, he neither knew or understood what was going on.” Q. “When the question was asked him, real or persónal, he nodded his head; don’t you think he knew what was said? A. He might have known what she said. We were willing for her to have all the property as long as she lived; there was sixty acres of land worth fifty dollars an acre, and personal property of four hundred dollars.”

William Bingaman testified that he was a brother of the testator and that he was there when the will was drawn, but was not in the room when it was 'Signed; that five or six days before the will was drawn testator 'told the witness that his wife had been trying to get him to make a will, but stated that he was not going to make-one. He stated further that if he were going to make a will he would give her all of his personal property, but that as far as the real estate was concerned he would let the law provide for that. The witness further testified that one morning Mrs. Bingaman asked him to talk to testator about making a will. Witness refused, • saying be could not do it on account of tbe condition testator was in. She thereupon asked witness to see Sam Galloway about talking to testator and that witness saw Galloway that day. Tbe witness admitted that upon tbe request of testator’s wife be went to see Mr. Cobb to inform bim that they wanted bim to make a will. Tbe witness denied tbe conversation between bim and testator as narrated by witness Riddle. Tbe witness was further permitted to testify that be rode to town that day with Mrs. Sweeney, and that be told her that testator was a very sick man, but that be did not remember saying that the testator did not have a degree of fever that morning and that be was conscious and seemed to know everything and recognize everybody.

In rebuttal defendants offered the following testimony. Mrs. Ida Sweeney testified that she rode to town with William Bingaman on tbe 25th day of June, 1909, and.that be told her that tbe doctor bad told bim‘that tbe testator hadn’t even a degree of fever that morning; that be was going to town to get Hence Cobb to come out and write tbe will; that Henry was conscious and seemed to know everything and recognize everybody.

Mrs. Sadie Crouch testified that 'she was present with Mrs. Bingaman all tbe time that Mrs. Bingaman was at Ben Plollingshad’s and that tbe conversation which witness Ben Hollingshad related as occurring between bim and Mrs. Bingaman, about deeding the property to Mr. Hannah, never occurred.

Robert Hannah testified that be stayed at testator’s during most of bis last sickness, and that be beard tbe conversation between Billy Bingaman and tbe testator wherein they agreed that Hence Cobb would do as well as anybody to write tbe will and that in that conversation William Bingaman said to testator, “I will go" to town and get Hence Cobb to come.” The witness said be could not see any difference in tbe mental condition of tbe testator that morning from what it bad been all tbe time; “be knew everything — all about everything— and lie knew everybody all the time and he always made his wants known.”

Mrs. Jane Taylor testified that she was a sister of Belle Bingaman and stayed at testator’s several days before his death; that he knew “everything and everybody” and the witness never noticed any change in testator’s mental condition.

Dr. Spears was re-called and testified that in July, 1912, Dr. Thornburgh asked him if he was going to Hart-ville court and that he replied, “Yes, it seems to me foolish; there is no doubt in my mind of the man being capable of making a will.” He said, “He might have been capable of making a will, but in his weakened condition of mind, he would have been easily influenced.”

Plaintiffs in rebuttal re-called Ben Hollingshad who testified that at the time Belle Bingaman had the conversation with him about deeding the property to Eobert Hannah, Sadie Crouch was not p'resent, but was out in the kitchen talking to the witness’s wife. '

William Bingaman re-called by plaintiffs testified that the testimony of Bud Hannah and Mrs. Taylor as to the alleged conversation between witness and testator, on the morning that the will was drawn, about going after Cobb, was untrue.

Plaintiffs then introduced in evidence defendants’ original answer which was a general denial.

I. As we gather it from their brief, appellants’ main contention is that the court erred in overruling their demurrer to the evidence, offered at the close of the case.

In this behalf they insist that there was no sufficient evidence (1) of testamentary capacity or (2) of the due and proper execution of the will.

First, as to point (1) above: Was there sufficient evidence of testamentary capacity to justify the submission of that question to the jury? It will serve no useful purpose to here repeat the evidence debailed in the foregoing statement of facts. A careful review of the same will disclose that if appellants’ evidence is to be believed the testator was without sufficient mind to make a will. If, on the other hand, the testimony of respondents’ witnesses is to be believed the testator did have mind sufficient in this regard. Under such conditions this question of fact was therefore one for the jury’s determination. [Heinbach v. Heinbach, 262 Mo. 69, l. c. 82-3.]

Now, with reference to point (2) above: Was there evidence of the due and proper execution of the will? In determining the correctness of a ruling on a demurrer to the evidence the opposite party’s evidence is taken as true and every favorable and reasonable inference arising from the evidence is to be allowed. Assuming then, as justified by respondents’ evidence that testator was possessed of testamentary capacity, he must have known the contents of the will before he affixed his mark thereto, because from the evidence it appears that the will was read aloud to him before he signed the same. The only other matter remaining for discussion under this point is with reference to the sufficiency of the testimony to establish the proper witnessing of the will by the subscribing witnesses. Appellants contend that there is no evidence that testator verbally requested the subscribing witness to sign the will. In this statement appellants are correct. However, we know of no'rule, in this State, that requires that the testator shall verbally request the attestation by the subscribing witnesses. The statutes of some of the states do so require. [Remsen on the Preparation & Contest of Wills, page 354.] But the Missouri statute (Sec. 537, R. S. 1909), in this regard, merely provides that the will, “shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.” (Italics ours).

In,the case at bar it appears that after the will had been read to the testator and he had nodded his assent thereto and affixed his mark, Mr. Cobb, in the presence and hearing of testator, requested the subesribing witnesses to sign the will, which was, by them, accordingly done in the presence of the testator. Under the authorities this was certainly sufficient evidence to establish the fact that the will was properly attested by the two subscribing witnesses. [Cravens v. Faulconer, 28 Mo. 19; Mays v. Mays, 114 Mo. 536, l. c. 541; Hughes v. Rader, 183 Mo. 630, l. c. 701, and cases therein cited; Lindsey v. Stephens, 229 Mo. 600, l. c. 615 et seq.]

The court did not err in overruling the demurrer to the evidence.

II. It is next contended that the court erred in overruling appellants’ motion to strike out respondents’ answer, on the ground that the amended answer contradicted the original answer.

The alleged motion did not undertake to perform the function of a demurrer. It was purely a matter of exception which could be preserved only in the bill of exceptions. The motion itself is not in any manner preserved in the bill of exceptions and, for that reason, an appellate review of the same is precluded. [Shohoney v. Railroad, 231 Mo. 131, l. c. 153.]

III. Appellants offered as a witness B. P. Skinner, husband of one of the- plaintiffs. Prior to being offered as a witness he had, upon motion, been made party plaintiff. Upon objection being made, by defendants, the court held that he was incompetent to testify in the case. This is assigned as error.

After the ruling as to incompetency was made, it appears that the matter was then abandoned and no offer of proof was made, indicating what the witness’s testimony would be if he were permitted to testify.

Under this condition of the record the point as to the witness’s competency becomes.a moot question, and therefore one which is unnecessary to determine. This because — even though we should decide that the witness Avas competent — we would still be unable to hold that the trial court committed reversible error unless it should further appear that proper and material testimony-was also thereby rejected. Absent an offer to prove, we have no way of determining whether proper evidence was re-' jected. We, therefore, express no opinion as to the competency of the witness.

IY. Appellants contend that the court erred in permitting the respondents to cross-examine two of their own witnesses (the subscribing witnesses), by asking them if they had not sworn jn the probate court, upon the original probate of the will, that the testator was of sound mind when the will was made.

It appears from the evidence that the subscribing witnesses were unwilling to testify as to the mental condition of the testator; this, no doubt, gave the trial court ground for the belief that they were in a sense hostile or unwilling witnesses. Under such circumstances, the trial court in the exercise of a sound disere^ tion may permit the party to cross-examine his own witness, at least to the extent here permitted. [State v. Duestrow, 137 Mo. 44, l. c. 84-5; Ashby v. Gravel Boad Co., 111 Mo. App. 79, l. c. 83; State v. Draughn, 140 Mo. App. 263, l. c. 267-8.]

We do not consider the action of the trial court in this case as an abuse of that discretion.

Y. Bespondents’ instruction numbered 4 is not erroneous because it told the jury that it was not necessary that testator verbally request the subscribing witnesses to sign the will. Instructions 4 and 11' clearly conveyed to the jury the idea that in order to find that the will was properly witnessed they should find that it was signed by the subscribing witnesses in the presence of the testator and with his knowledge and consent.

The statute, <as above mentioned, merely requires that the subscribing witnesses sign the will “in the presence of the testator.” Of course, the word “presence” necessarily includes knowledge of the act and acquiescence thereto upon the part of the testator. This knowledge and acquiescence upon the part of the testator can be shown in different ways, viz.; by verbal request upon the part of the testator or by any other act or conduct upon the part of the testator or other evidence which would show that testator had knowledge of the attestation and consented or acquiesced therein. [See authorities cited under paragraph one above.]

The case of Miltenberger v. Miltenberger, 78 Mo. 27, cited and relied upon by appellants, does not hold that a request upon the part of the testator is a necessary prerequisite to the right of the subscribing witness to attest the will. In that case the will was written in a language not understood by the testatrix, and the fact that the testatrix did not request the witnesses to sign the will was commented upon, in an argumentative way, by the court] as merely showing an absence of knowledge upon the part of the testatrix that she was making a will. The proof of the execution of the will was held' to be defective, not because the testatrix failed to verbally request the witnesses to sign it, but because there was an absence of any proper evidence that testatrix knew that the instrument she signed was in fact a will.

The judgment is affirmed.

All concur.