text:
    THE STATE v. WILLIAM PAGE, Appellant.
    Division Two,
    May 19, 1908.
    1. CONTINUANCE: Not Incorporated in Bill: Diminution of Record. A failure to incorporate the application for a continuance and the affidavit in support thereof in the hill of exceptions, is not a diminution of the record, and their omission cannot he remedied hy suggestions of a diminution of the record. To he considered on appeal they should he made a part of the hill of exceptions, and if not incorpprated therein the rulings of the trial court in regard thereto are not for review.
    2. EVIDENCE: Murder: Intimacy With Deceased’s Wife: Motive. The State is entitled to introduce evidence tending to show undue intimacy hy defendant with deceased’s wife. Such evidence is competent as tending to show motive for the commission of the homicide.
    3. -: -: -: Telegram. A telegram sent hy defendant to deceased’s wife after the shooting, in which defendant stated that he had shot her husband, was admissible, both as showing the extremely friendly relations between her and defendant, and as an admission that he had shot deceased.
    4. -: General Objection. An objection to the admission of evidence simply that it is irrelevant and immaterial is insufficient to preserve its competency for review.
    5. -: Refusal to Hear. A rejection of testimony hy the trial court is not for review if the appellant did not at the time of its exclusion indicate what he intended to prove and make proffer of such proof.
    6. JURORS: Summoned by Unauthorized Persons. A complaint that the panel of jurors were not summoned hy officials authorized to do so, comes too late, if made for the first time in the motion for a new trial.
    7. -: Misconduct: Affidavit by Defendant Alone. Upon the mere affidavit of a defendant who had been convicted of a serious crime, charging misconduct on the part of the jury, it is not absolutely essential that there he some showing made h'y the State contradicting it. There may be instances where the unsupported affidavit of the defendant alone, charging misconduct on the part of the jury, would justify the granting of a new trial, hut in order to warrant such a course the affidavit should he full and explicit, indicating whether he had personal knowledge of the misconduct, or if not, the persons from whom he received the information, and reasons why he was unable to secure the affidavits of other witnesses.

      8. -: Swearing of Sheriff. The verdict will not be set aside simply because the record fails to show that the sheriff who took charge of the jury was not sworn.
    9. EVIDENCE: Sufficiency: Conflict: Murder: Self-Defense. It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be attached to their testimony in the trial of criminal causes. And while defendant made a strong showing that, in shooting deceased, he acted in the necessary defense of his person, yet where there was substantial testimony to the contrary, and it cannot be seriously contended that, if the jury believed the witnesses who testified for the State, the testimony did not furnish ample proof for the verdict, the appellate court will not interfere on account of the conflict in the testimony.
    Appeal from Scotland Circuit Court. — Row. Chas. D. Stewart, Judge.
    Affirmed.

      N. M. Pettingill, Doran & Watkins and E. R. McKee for appellant.
    (1) The application for continuance speaks for itself. It shows the utmost diligence to obtain the evidence, and the materiality of it. A party resting under so grave a charge, when he had used every means known to him to obtain important evidence, should not be forced to trial when he shows he was acting in the best of faith, and asking for a continuance only for the purpose that he might have the benefit of evidence he knew existed, and had all reason to believe could be later obtained, that would exonerate him from blame in the tragedy. His being forced to go to trial without this evidence certainly should give him a new trial. The motion for new trial is supported by the affidavit of defendant, and there are no counter affidavits on the part of the State. The truth of the matter therein stated is not controverted. They admit the allegations to be true, by their silence. (2) The jury was not selected or summoned by tbe sheriff or a deputy. (3) The jury was permitted to separate during the trial. The jury at no time was placed in charge of an officer sworn to keep them together. After the cause had been finally submitted to them they were permitted to separate. They were permitted to talk with divers persons after the cause was submitted. Four of the jurors separated themselves from the remainder- after the cause had been finally submitted and went into a room, no sheriff or officer of the court accompanying them, and there met and conversed with one Oral Myers, one of the witnesses who had testified on the part of the State. (4) No oath was administered to the sheriff on taking charge of the jury on retiring to consider of their verdict, and it was not shown by the State that he did not communicate with them.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The amended information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Gray, 172 Mo. 434. (2) Defendant’s application for a continuance was properly overruled, as it showed no diligence whatever. Besides, said application is not included in the bill of exceptions, and a mere reference to it in the motion for a new trial is not sufficient. State v. Gordon, 196 Mo. 198. (3) Evidence showing a criminal intimacy between the defendant and the wife of the deceased has always been considered competent in a murder case; and the evidence is not confined to acts of intimacy prior to the commission of the homicide, it may be shown to exist afterwards. State v. Goddard, 162 Mo. 229; People v. Harris, 136 N. Y. 450; State v. Miller, 68 Miss. 221; Underhill on Crim. Evidence, sec. 90. Besides, said telegram and letter were admissible against the defendant, as an admission that he shot the deceased. State v. McLaughlin, 149 Mo. 19. (4) Counsel for defendant insist that error was committed in sustaining the State’s objection to certain questions asked by defendant’s counsel. However, defendant did not state to the court what he expected to prove, neither did he make any offer of proof; hence, the matter has not been properly preserved for review. State v. Foister, 202 Mo. 48; State v. Arnold, 105 S. W. 641. (5) In his motion for a new trial, defendant complains that the jurors were improperly selected, and were not summoned by an officer duly authorized. But this objection comes too late after verdict. State v. Grant, 152 Mo. 71. (6) The misconduct of the jury was not proven to the satisfaction of the trial court. No one made affidavit to any misconduct, except the defendant himself, and his affidavit is a most remarkable one. It is strange, indeed, if the jury was guilty of all of the misconduct that the defendant-alleges, that he could not procure the affidavit of some- one to those facts. Our courts have never gone so far as to hold that a defendant is entitled to a new trial, simply because he makes affidavit that some of the jurors were guilty of misconduct. State v. Gordon, 191 Mo. 133; State v. Spaugh, 200 Mo. 608. (7) The physicians testified that the deceased was shot in the back, about two inches to the right of the spinal column, the bullet ranging forward and upward. The defendant testified that he acted in self-defense; but he was so thoroughly contradicted by the physical facts in the case, and by his former conduct, that it is not surprising that the jury disregarded his evidence. It has often been held by this court that courts and juries are not bound to accept of evidence tending to establish self-defense, where the physical facts are contrary thereto. State v. Fraga, 1991 Mo. 136; State v. Logan, 84 Mo. App. 584; State v. Bryant, 102 Mo. 32; State v. Tabor, 95 Mo. 585. Where there is substantial evidenee in support of the verdict, this court will not grant a new trial, even though' the defendant did testify that he acted in self-defense, hut will defer to the finding of the jury, as approved by the trial court. State -v. Smith, 190' Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Yandell, 201 Mo. 662.
   FOX, P. J.

— This cause is brought to this court by appeal from a judgment of conviction of the defendant of murder in the second degree in the Scotland Circuit Court. The information upon which this prosecution is predicated was an amended one and filed in the circuit court of Scotland county on May 15, 1905. Omitting formal parts, it charged the defendant with the offense of murder of the first degree in the following form:

“John E. Luther, prosecuting attorney within and for the county of Scotland and State of Missouri, on his oath of office informs the court and charges the fact to be that the defendant "William Page on the 16th day of March, 1905, at the county of Scotland and State of Missouri, in and upon one Ed Kelly, then and there being, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did make an assault, and a certain pistol, a deadly weapon, which was then and there loaded with gunpowder and leaden bullets, and by him the said William Page held in his right hand, the said William Page did then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, shoot off and discharge at and upon him, the said Ed Kelly, thereby and thus striking the said Ed Kelly, with one of said leaden bullets, inflicting upon the back of him the said Ed Kelly one mortal wound of the diameter of about a fourth of an inch and of the depth of eight inches or more, of which said mortal wound the said Ed Kelly from the 16th day of March, 1905, until the 27th day of March, 1905, at Memphis, Missouri, in the county aforesaid, did languish and languishing did live, on which 27th day of March in the year aforesaid at Memphis, in the county and State aforesaid, of said mortal wound aforesaid the said Ed Kelly died, and so the said prosecuting attorney aforesaid under his oath of office aforesaid informs the court and charges the fact to he and does say that said William Page him the said Ed Kelly at the county of Scotland and State of Missouri aforesaid, in manner and by the means aforesaid feloniously, wilfully, deliberately and premeditatedly, on purpose and of his malice aforethought did kill and murder against, the peace and dignity of the State. ’ ’

This information was duly verified by the prosecuting attorney. At the January term of the Scotland Circuit Court defendant was put upon his trial. We have examined in detail the evidence developed at the trial as disclosed by the record and have compared it with the statement as made by the Attorney-General as to what the evidence tended to show. We find from such examination that this statement is substantially correct, at least it is a sufficient statement to- indicate the nature and character of the testimony upon which this cause was submitted to the jury and to enable us to determine the legal propositions involved in this record.

The State’s evidence tended to show that the defendant had been on very friendly and intimate terms with the wife of the deceased; that he frequently called' at the deceased’s home during the day, and also during the night, when the deceased was not at home; that he was frequently seen walking on the streets of Memphis in company with the deceased’s wife, and on one occasion, about nine o ’clock at night, the deceased pursued the defendant and the deceased’s wife, and they ran into a neighbor’s house for protection. The evidence further tended to show that the deceased’s wife left Memphis and went to Colorado Springs, where she instituted a suit for divorce against the deceased. The summons was sent to the sheriff of Scotland county, but the deceased was not then at home, and the defendant talked with the sheriff and advised that the summons be sent to an adjoining county where he said the deceased then was. The evidence further showed that the defendant purchased two money orders from the postmaster at Memphis, which were made payable to the wife of the deceased, and which he sent to her at Colorado Springs, stating to the postmaster and his deputy that the money was to pay for her divorce. The defendant said to several parties in Memphis that he had separated the deceased and his wife. Prior to the shooting, the defendant went into a saloon and showed a picture which he carried in his watch, which defendant stated to the barkeeper, Thomas O’Day, and to others in the saloon, was a picture of the wife of the deceased. He also said that he received letters from that woman. To John Hines, an insurance man, the defendant showed a picture of the wife of deceased, and also a letter that he had received from her. Joseph Russell, who was working on a church near the defendant’s home, frequently saw the defendant and deceased’s wife walk along the street together. Afterwards, the defendant showed Russell a picture of this woman, called her his wife, and said that he (defendant) would feel all right if he had his wife. He also told Russell that he had sent for her divorce. A barber named Meyers testified that he frequently saw defendant carrying a pistol, and one evening shortly before the shooting defendant showed his pistol to Meyers and asked him to look at it. Meyers asked what he wanted with it, and defendant replied that he might have use for it before long, as he had parted Kelly and his wife. On the evening of the 16th of March, 1905, shortly after supper, the defendant and the deceased met in the office of the Central Hotel in Memphis, and the deceased said that he wanted to speak to defendant. The deceased asked the defendant for certain correspondence that he had with the deceased’s wife, which the defendant declined to give him. There was then a little more conversation which the witnesses did not fully understand, and the defendant retreated from the deceased, the deceased following him, and the two ran into a bed room adjoining the hotel office. In a little while the defendant returned to the office and said, “That fellow thinks I am trying to steal his wife.” The defendant then pulled a pistol from his hip pocket and said, “If I could have got my gun out, I would have killed that fellow.” The defendant then put his pistol in his inside coat pocket. In a little while, the defendant looked through the window and saw the deceased, and said, “If you want to see me, come in, and you can talk to me.” The deceased came into the room, and the defendant walked behind the show case, which was about four feet high. The deceased again called for this correspondence; the defendant again denied having any correspondence; and the deceased called the defendant a “God damn liar.” The defendant said, “Talk to me like a man and not like a dog and I will answer you.” The defendant immediately drew his pistol, and the deceased started to run for the outside door, when the defendant shot the deceased in the back. The deceased fell to the floor, was assisted to walk to a near-by drug store, and physicians summoned. Mr. Whallon and Mr. Saling examined the clothes of deceased, and found no weapons whatever. The deceased lingered until the 27th day of March, 1905, when he died. Immediately after the shooting, the defendant walked out of the hotel and into a barber shop, which was next door, and said to George Davidson, “Didn’t I tell you I would get him?” After being arrested, the defendant sent a telegram to the wife of the deceased, who was then at Colorado Springs, to the effect that he had shot the deceased, and that the deceased conld not live. He also wrote her a letter after being put in jail. Doctors Pile, Platter and Bondurant testified that they found in the body of the deceased a gunshot wound which entered about two inches to the right of the spine and below the lower angle of the shoulder blade. This wound was made hy a 38-calibre bullet, and the bullet was found in a fractured rib, having ranged forward and upward. In the opinion of these physicians, this wound caused the death of the deceased.

The defendant’s evidence tended to prove that the deceased had been very unkind and brutal toward his wife, and that defendant simply interfered to protect her on a few occasions. This angered the deceased so that the deceased became very jealous of the defendant. The various meetings which the defendant had with the wife of the deceased were by accident, and no improper relations ever existed between them. He further admitted having some correspondence with the wife of the deceased, after she had gone to Colorado Springs, but claimed that he did not know her whereabouts prior to receiving a letter, asking him to loan her some money. He admitted sending her the two post-office money orders, which money she was to use in getting her divorce. The defendant’s evidence also tended to prove that the deceased made threats against the defendant, invited the defendant to come out of a bakery and fight on one occasion, and that the defendant left the State at one time to avoid the deceased, remaining absent some weeks.

The defendant testified that on the afternoon of the shooting, he learned from Mr. Boyd that the deceased was coming on a local freight, and had threatened to ldll the defendant. The defendant, accordingly, remained in his room at the Central Hotel, where he boarded, all of that afternoon. The -defendant’s evidence further tended to prove that the deceased came to the office of the hotel on the evening of the final difficulty and demanded of the defendant certain correspondence with the deceased’s wife, and that the defendant denied having any. The defendant then ran from the office, the deceased following him, threatening him, as the two ran into an adjoining bedroom. . The defendant made his escape from the deceased, and came back into the office, and soon afterwards the deceased followed him into the office and assaulted him again. Being crowded behind a little counter and between it and the wall, and fearing that the deceased would kill him, the defendant drew his pistol and shot the deceased. The defendant also introduced evidence tending to show that the deceased was a dangerous man, turbulent and quarrelsome, and that on one occasion he assaulted with a razor and cut a inan named Nichols, plead guilty and was fined. George Palmer, one of defendant’s witnesses, testified on cross-examination that the defendant showed him several letters that he received from the wife of the deceased. The witness did not read all of one letter, only about half a dozen pages. In one letter, the woman wrote to defendant about a murderous heart following the two of them; said she could not help loving the defendant, etc.

In rebuttal the State proved that Mr. Boyd did not tell the defendant that the deceased was on a local freight train on the day of the homicide, nor that the deceased had threatened to kill defendant. The State also proved that the defendant left Memphis on the same day that the wife of the deceased left.

At the close of the evidence the court fully instructed the jury upon every phase of this case to which the testimony was in any way applicable. The instructions embraced the offenses of murder in the first and second degrees, and manslaughter in the fourth degree, as well as appropriate instructions upon the right of self-defense, the consideration of any threats made by the deceased against the defendant, the credibility of witnesses and reasonable doubt. The cause was submitted to the jury and they returned into court their verdict finding the defendant guilty of murder in the second degree, and assessing his punishment at imprisonment in the penitentiary for a term of fifteen years. A timely motion for new trial, supported' by the affidavit of the defendant, was filed, and by the court overruled. Sentence and judgment were rendered in accordance with the verdict returned by the jury and from this judgment the defendant prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

The record now before us in this cause discloses numerous complaints of error as grounds for the reversal of this judgment. Learned counsel for appellant in their brief, which is now before us, indicate and direct our attention to what doubtless appeared to them as the most important propositions disclosed by the record. We have read in detail the entire disclosures of the record in this cause and have given them our most careful consideration. We will give the legal propositions involved in this proceeding such consideration as the importance of them requires.

I.

It is insisted by counsel for appellant that the court committed error in overruling appellant’s application for a continuance. This complaint is the first one suggested in the brief filed by counsel for appellant. At the very threshold of the consideration of this proposition the Attorney-G-eneral confronts us with the suggestion that the application for a continuance is not incorporated in the hill of exceptions and is therefore not before this conrt for review. It is not contended by counsel for appellant that the application for a continuance was incorporated in the bill of exceptions at the time of the signing of the bill and the filing of it with a view of making the matters and things embraced in it a part of the record in this cause. However, it is sought by appellant to remedy this omission of the application and affidavit in support of it from the bill of exceptions by directing our attention to the suggestion of diminution of the record and the omission of the application and affidavit in support of it, in which suggestion it is sought to have this court order the clerk of the circuit court to send up the application for continuance and the affidavit of E. L. Clark in support of it, with the view of having such files in the circuit court of Scotland county supply the omission of the application and the affidavit of Clark from the bill of exceptions.

In our opinion the record as made cannot be amended or changed in this manner. The application for a continuance and any affidavits in support of it did not constitute any part of the record proper and they could only be made a part of the record in this case by being incorporated in the bill of exceptions. When the bill of exceptions was signed by the judge and filed in the circuit court of Scotland county those matters only which were embraced in such bill were made a part of the record, and the omission to incorporate any matter which should have been incorporated in the bill of exceptions, is not, in contemplation of law, a diminution of record which may be corrected by suggestions of the character made in this cause. We repeat that applications for continuances can only be reviewed by this court when they are properly preserved in a bill of exceptions duly signed by the judge and filed in the circuit court of the county where the case was tried, and if such application is omitted from the bill of exception such omission cannot be remedied by any suggestions of a diminution of record. If this could be done and bills of exceptions which are filed and made a part of the record can be changed or amended, then we must abandon the universally recognized rule of. fixing a time when a bill of exceptions shall be filed and requiring it to be filed at the date so fixed. If the omission of this application for a continuance can be embraced in the bill of exceptions, or by suggesting a diminution of record the original files ordered transferred to this court to be treated as being incorporated in such bill, then we see no reason why the rule could not be invoked where the stenographer has taken testimony and such testimony, after being transcribed, was omitted from the bill of exceptions. It is incumbent upon the appellant if he desires to have matters reviewed by this court, to have all such matters not constituting a part of the record proper incorporated in his bill of exceptions, and if he fails to so. embrace them in such bill, such omission cannot be supplied by suggestion of diminution of record. Upon this proposition we see no escape from the conclusion that the application for a continuance and the action of the court upon it is not before us for review.

II.

During the progress of the trial appellant interposed numerous objections to the evidence introduced by the State tending to show undue intimate relations of the defendant with the wife of the deceased.

It is sufficient to say of these objections that it is a well-recognized rule of law applicable to the subject of evidence that evidence of this character is always admissible for the purpose of tending to show the motive in the commission of the homicide, and undue intimacy of the defendant with the wife of the party he is charged with killing prior to the alleged commission of the homicide and the continuation of such intimacy subsequent to its commission has been held in many well-considered cases as competent evidence in the trial of such defendant charged with the commission of such homicide. [Pierson v. People, 79 N. Y. 424; State v. Hinkle, 6 Iowa 380; Miller v. State, 68 Miss. 221; People v. Harris, 136 N. Y. l. c. 450; Underhill on Crim. Evidence, sec. 90; State v. Goddard, 162 Mo. l. c. 229.]

It may be said, however, as to the admission of the telegram sent by the defendant to the wife of the deceased after the shooting, in which the defendant stated to the wife of the deceased that he had shot her husband, that, aside from, showing the extremely friendly relations between the defendant and the wife of the deceased, it was admissible on the further ground as an admission that he shot the deceased.

Other complaints are made as to the admission of evidence introduced by the State, but the record discloses that the objection interposed was simply that it was irrelevant and immaterial, and this court has repeatedly ruled that the objections of that character are insufficient to preserve the question for review in this court.

III.

The record discloses a complaint upon the part of the appellant at the action of the court in sustaining objections to certain questions propounded to the witnesses by defendant’s counsel. It will be observed, however, in relation to the denial of the right of the witnesses to answer the questions propounded by defendant’s counsel, that the defendant did not indicate to the court in any way the nature and character of the evidence which he sought to elicit and which he proposed to elicit if the court would permit the answering of the questions. In the recent case of State v. Arnold, 206 Mo. l. c. 597, Judge Gantt, speaking for this court, said.': “It has been uniformly ruled by this court that a mere refusal to hear an answer is not alone sufficient to constitute error, but that it is the duty of the party alleging error to indicate to the court the nature and character of the evidence which he proposes to elicit. [Aull Savings Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; State v. Martin, 124 Mo. loc. cit. 523, 524; State v. Hodges, 144 Mo. loc. cit. 54, 55.]”

In State v. Foister, 202 Mo. l. c. 48, it was expressly ruled that the rejection of testimony is not before us for review if the defendant at the time of the exclusion of such evidence made no offer of proof and made no statement of what he expected to prove, but simply saved his exceptions; citing, in support of such rule, State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50.

IV.

It is disclosed in the motion for new trial that the defendant complains that the jurors were not properly selected and were not summoned by an officer duly authorized to execute process of that character.

' It is sufficient to say of this complaint that it was clearly the duty of counsel at the very inception of the trial of this cause to ascertain if the panel of jurors had been properly summoned. As to whether they were summoned by proper officials was information that could be very readily secured. Counsel for appellant did not make affidavit that they had no knowledge as to the officials who summoned this jury, nor is there any statement of fact indicating any concealment of the information respecting the person who served the process in summoning the jury. It is also disclosed in the affidavit of the defendant that he, and the attorneys as well, knew "before the close of the ease that the jurors were not summoned by officials authorized to do so; however, the court is confronted with this complaint for the first time in the motion for new trial. In our opinion this complaint comes entirely too late. It was ruled in the case of State v. Sansone, 116 Mo. l. c. 11, where the trial court had some extra jurors summoned, that it came too late to complain, at the action of the court in summoning extra jurors, for the first time in the motion for new trial, and in support of this ruling there was cited State v. Waters, 62 Mo. 197; State v. Klinger, 46 Mo. 224; State v. Gilmore, 95 Mo. 554; State v. Smith, 114 Mo. 406. Judge Burgess, speaking for this court, in State v. Grant, 152 Mo. l. c. 71, cited approvingly State v. Sansone, supra, and plainly stated the rule to be that “the objection that a jury has not been legally summoned or impaneled comes too late when made for the first time in a motion for a new trial.”

Y.

This brings us to the insistence of learned counsel for appellant that a new trial should be granted on the ground of the misconduct of the jury and the absence from the record of a showing that the sheriff at the conclusion of the cause was sworn to take charge of the jury and keep them in some private or convenient room or place, etc., as provided by the statute.

The allegation in the motion for new trial on the ground of the misconduct of the jury and that the sheriff was not properly sworn is supported alone by the affidavit of the defendant. This motion for new trial absolutely finds no support from any disinterested witness or as to that from any witness other than the defendant himself.

We are cited to numerous cases where new trials have been granted on the ground of the misconduct of the jury, and our attention is specially directed to the case of State v. Howland, 119 Mo. 419, and it is urged by counsel that particular stress was attached to the fact that the affidavit in that case in support of the motion was uncontradicted. But it will be observed in that case, as in all other adjudicated cases which disclose the parties making the affidavit, that it was not resting upon the mere affidavit of the defendant, but was an affidavit made by other witnesses. The affidavit in the Howland case was made by witnesses Barr and Bailey, and we are unwilling to hold that upon the mere affidavit of a defendant who has been convicted of a serious offense, charging misconduct upon the part of the jury, it is absolutely essential that there should be some showing made by the State contradicting his affidavit. If that is to be the rule, then it would be hailed with great favor by persons who had been convicted of serious crimes who desired to avail themselves of it in order to procure a new trial, and would result in many cases which reach this court in having the record burdened with affidavits of officials and jurymen, for the purpose of contradicting statements made in an affidavit by the defendant alone. Whether there was any misconduct upon the part of the jury was a question of fact resting upon the circuit judge to determine, and while we do not mean to hold that there may not be instances where the granting of a new trial would he justified upon the unsupported affidavit of the defendant, yet we have no hesitancy in saying that, in order to warrant such course, the affidavit should be full and explicit, indicating fully as to whether or not he was an eyewitness, that is, witnessed personally the misconduct, or if not, indicating the persons from whom he obtained the information, and further indicating at least some sort of a reason why he is unable to secure the affidavit of any other witnesses aside from himself to support his motion for a new trial. The trial judge is entitled to have the presumption indulged that he dealt fairly and impartially with the defendant in the trial and disposition of his case. We are decidedly of the opinion that to allow the question as to whether a new trial should he granted upon the ground of misconduct of the jury, predicated upon the unsupported affidavit of the defendant, to rest with the trial judge, would, in no way endanger the rights of a defendant or a fair and impartial administration of justice, and his position as the presiding judge at the trial is peculiarly one which gives him an opportunity of determining the weight which should he attached to an unsupported affidavit made by the defendant who is seeking a new trial on the ground of misconduct of officials and jurors connected with the case, and' as before stated the trial judge is entitled to have the presumption indulged that he will fairly and impartially determine the questions presented by such affidavit.

Upon the proposition involved in this proceeding, that the record fails to disclose that the sheriff was duly sworn at' the close of the case to take charge of the jury, learned counsel for appellant direct our attention to State v. Hayes, 78 Mo. 307, and State v. Hays, 78 Mo. 600. We have carefully examined those cases and in our opinion they fall far short of supporting the contention of appellant so earnestly urged in this case. In the first case, after the jury had retired, the sheriff was sworn, and for that reason it was held that it did not constitute any error. In the second case the record expressly discloses that when the sheriff took charge of the jury when they retired to consider of their verdict he was not sworn as provided by the statute. In this last case, counsel in their brief, doubtless through an oversight, make the erroneous statement that the judgment was set aside in that case for the reason that the record disclosed that the sheriff was not sworn. It was expressly ruled in that case that “to vacate the verdict in such a state of case would be a preservation of the mere letter of the law without an intelligent recognition of its spirit, ’ ’ and the judgment was affirmed notwithstanding the record disclosed an absolute failure to administer the proper oath to the sheriff at the close of the case.

VI.

This leads us to the consideration of the instructions given by the court at the close of the case. We have carefully read in detail the instructions given by the court of its own motion and those given at the request of the defendant and have fully considered the subjects presented by them. We do not deem it necessary to burden this opinion with a reproduction of the instructions as given. They number between 20 and 25, and in our opinion they present every-possible phase of this case to which the testimony was applicable. It is not out of place to say that the instructions as a whole were most favorable to. the defendant, and many of those given by the court at his request should not have been given. Those instructions requested by the defendant and refused by the court were fully covered by the other instructions in the case; therefore, we have reached the conclusion tha-t there is no ground of complaint on the part of appellant as to the presentation of the law of this case by the trial court to the jury.

VII.

We are now brought to the consideration of the only remaining proposition involved in this cause, that is as to the sufficiency of the testimony to support the finding of the jury. We have read in detail the entire evidence developed at the trial of this case as it is disclosed by the record, and it certainly cannot be seriously contended that, if the jury believed the witnesses who testified on the part of the State, the testimony of such witnesses did not furnish ample support to the conclusion as reached by the jury. While it is true that in some of the features of the testimony as presented by the defendant there is a strong show^ ing that he acted in the necessary defense of his person, but at last who is to settle the conflict in this testimony? It has been repeatedly ruled by this court that it is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be attached to their testimony in the trial of criminal causes, and that it is no part of the province of the appellate court to retry such causes upon the mere disclosures of the evidence in the record. This rule has been so uniformly adhered to that it needs no citation of authorities to support it. Where there is substantial evidence in support of the conclusions reached by a jury, this court will not undertake to settle any of the conflicts in the evidence which may have developed at the trial, but will adhere to the finding of the jury and the approval of their finding by the trial court. [State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Yandell, 201 Mo. l. c. 662.]

We have indicated our views upon the leading propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. MORRIS CHRISTOPHER, Appellant.
    Division Two,
    May 19, 1908.
    1. APPELLATE JURISDICTION: Constitutional Question. The constitutional right “to demand the nature and cause of the accusation” does not imply that every person charged with a crime, whether the offense he a felony or a misdemeanor, can require the Supreme Court to pass upon the sufficiency of the indictment or information lodged against him, by filing a motion to quash or a demurrer on the ground that the same does not inform him of the nature and causé of the accusation. If the offense charged is a misdemeanor, the Supreme Court cannot by any such means acquire jurisdiction oyer an appeal from a conviction in the case. The Court of Appeals has authority to determine the sufficiency of the information in a misdemeanor case.
    2. -: -: Indefiniteness of Demurrer. The Supreme Court does not obtain jurisdiction over an appeal from a conviction of a violation of the Local Option Law, by a-demurrer to the information which simply says that said law violates section 53 of article 4 of the Constitution — a section which mentions thirty-three different cases in which the enactment of special or local laws is prohibited. To have raised the constitutionality of the law the demurrer should definitely have pointed out what part of the section it is claimed has been violated.
    Transferred from Kansas City Court of Appeals.
    Remanded to Kansas City Court op Appeals.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

— This is an appeal from the judgment of the circuit court of Harrison county, by which defendant was fined $300, upon a conviction of selling whiskey in violation of the Local Option Law. The appeal was taken to the Kansas City Court of Appeals, and has been transferred to this court by the Court- of Appeals on the motion of the defendant on the ground that it involves a constitutional question. The question which presents itself at the threshold is whether this court has jurisdiction of this appeal. It appears from the record that on the 17th day of July, 1905, the prosecuting attorney filed an amended information and thereafter, on the 21st of July, the defendant filed his demurrer thereto, which demurrer among other grounds contained the following two: “5th. Because said amended information does not inform the defendant of the nature and cause of the accusation against him as required by section 22 of article 2 of the Constitution of the State of Missouri. 6th. Because said amended information and the Local Option Law under which the same is attempted to be drawn is in violation of section 53, article 4, of the Constitution of Missouri.” It nowhere appears in the record proper that this demurrer was overruled, but in a bill of exceptions filed by the defendant it is recited that the same was overruled and the defendant at the time excepted. The record on the 21st of July, 1905, shows that the defendant entered his plea of not guilty and thereupon the case was submitted to the court and a jury and. the defendant convicted. The defendant asked no instruction which challenged the constitutionality of the law and none was given on behalf of the State. In the motion for new trial the constitutionality of the law was not challenged, unless it can be said that one ground for new trial was that the court erred in overruling the defendant’s demurrer to the information in the cause. The motion in arrest made no reference whatever to the constitutionality of the. act. The defendant in his motion to transfer this cause from the Court of Appeals to this court assigns as a reason therefor “that the appellant filed his demurrer to the information in which he alleged as grounds therefor the two- grounds already noted above and that said demurrer was overruled.”

It is a well-established rule in respect to demurrers that where, after demurrer is overruled, the defendant files answer or pleads over, the demurrer is deemed to be waived. [Pickering v. Mississippi Valley Nat. Tel. Co., 47 Mo. 457.]

In Fuggle v. Hobbs, 42 Mo. l. c. 541, where the defendant complained of the striking out of an amended answer, Wagner, J., said: “If the appellant intended to avail himself of the errors committed by the court in this respect, he should have let judgment go at the time and stood on his exceptions. By pleading over and going to trial on another issue, he voluntarily abandoned whatever grounds he might have had for a review of the action of the court. The judgment appealed from is a judgment rendered upon the issue tendered by the last answer,” etc. [West v. McMullen, 112 Mo. l. c. 409; Scovill v. Glasner, 79 Mo. 449.] If the demurrer, on the other hand, had been sustained, “there was no manner of necessity for a bill of exceptions in order to preserve the demurrer, as it is a part of the record, and ‘would keep’ without resort to any such preservatory process. ” [Spears v. Bond, 79 Mo. l. c. 469.]

In regard to the exception taken to the overruling of the demurrer, it was said in Newton v. Newton, 162 Mo. l. c. 182, “An exception in such case neither helps nor hurts, as a demurrer will keep without an exception.” [Hannah v. Hannah, 109 Mo. 236; Thorp v. Miller, 137 Mo. l. c. 239.]

Does the right “to demand the nature and cause of the accusation,” secured by the Constitution (sec. 22, art. 2) imply that every person charged with crime,1 in this State, whether the offense be a felony or a misdemeanor, can require this court to pass upon the sufficiency of the indictment or information lodged against him, by simply filing a motion to qnash or a demurrer upon the ground that the information does not inform him of the nature and cause of the accusation? We think not. In the distribution of the judicial power, the people have confided to the Courts of Appeals jurisdiction of misdemeanors, and those courts are as competent to pass upon the sufficiency of an indictment as this court and it is only when the constitutionality of some law is challenged, or the defendant has been denied some constitutional right, that the jurisdiction is conferred in a prosecution for misdemeanor on this court. To hold that the Courts of Appeals do not have jurisdiction of an appeal from a judgment of a circuit or criminal court, holding that an indictment or information charging a misdemeanor is sufficient in form and substance, would be to practically remove every appeal from a conviction for a misdemeanor to this court and destroy the efficacy of that provision of the Constitution assigning such appeals to the Courts of Appeals and we are unwilling to give the Constitution such a construction.

2d. The other ground is that the Local Option statute contravenes section 53 of article 4 of the Constitution. It will be noted that said section points out thirty-three different cases in which special and local laws are prohibited, but this ground of demurrer does not specify which of said paragraphs the Local Option Law is supposed to contravene. Demurrers are required to specify the grounds of objection to a pleading or indictment, and this demurrer, even if not waived by pleading over, is utterly insufficient to give this court jurisdiction of this appeal. In Ash v. Independence, 169 Mo. 77, it was ruled that a party desiring to invoke the protection of the Constitution must point out the section which he claims has been violated and it was not sufficient to merely allege that certain tax bills “were unconstitutional and void.” So in this case; to

point to a section containing thirty-three subsections without indicating which of said paragraphs or subsections had been violated, is no more definite than if he had alleged the act was unconstitutional without specifying any article of the Constitution. It follows this court has no jurisdiction of this appeal and it is ordered transferred to the Kansas City Court of Appeals.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    GEORGE WESTON et al., Appellants, v. MARY HANSON et al.
    Division Two,
    May 19, 1908.
    1. WILL: Capacity: Tests. The tests of the testator’s capacity to make a will are that he had sufficient intelligence to know what property he owned, what disposition he was making of it, and all the persons who reasonably came within the range of his bounty, and to transact his ordinary business affairs.
    2. -: -: -: Brutality Towards Wife. Testator’s brutal treatment -of his wife, that led her to sue him for a divorce, which the evidence showed he desired her to get, in order that he might be rid of her and be free to associate and live with another woman, is not one of the tests of testamentary capacity. A man may be unkind, unfaithful and brutal in his treatment of his wife, and yet have capacity to make a will.
    3. -: -: Unnatural Will. Two or three days prior to making the will testator divided his property about equally with his wife, who had just obtained a divorce from him, and in consideration of the property conveyed and given to her she relinquished her dower in his remaining property. Thereupon he went alone to a lawyer, gave him a description of all his property and specific directions as to how he wanted it disposed of, gave the names and residences of his children, stated he wanted the headstone to his grave to show his name, and date and place of birth, and the date and place of death, and the reasons why he gave his wife nothing, and the will was drawn in exact accordance with his wishes, and the three witnesses testified that at the time he was of sound mind. His wife, who is not a party, when asked if he was of sound mind, at first evaded the question, and finally answered that she supposed he was. A physician testified that when he first knew him he was a man of bright and talkative disposition; that he afterwards had chronic ulcers on his legs, due to imperfect circulation attendant upon approaching old age, and urinary calculus, which made him irritable and from which he suffered severe pain, and that he became morose, quiet, and approached a hypochondriac state. He was shown to have been a forceful man, had been trusted with responsible business, had accumulated considerable property and managed it himself, and by his will disinherited his children and gave all his property to a favored niece of his wife, with whom he had become immorally intimate before his wife securedHhe divorce. Held, first, that, owing to the unnatural disposition of his property, the burden was on the proponents to establish the validity of the will; second, that he had a right to dispose of his property as he wished, even to disinheriting his children, if he had capacity to make a will; third, there was no evidence whatever that he was incapacitated to make a will; and, fourth, the will itself bears on its face proof of the testator’s capacity.
    4. -: Undue Influence: Mistress as Sole Devisee. A will by which an old testator disinherits his children and gives all his property to a young mistress, cannot be said to be the result of undue influence on her part, in the absence of any evidence that she knew the will had been made, that she ever talked with him about making a will, or that she ever exerted her influence over him to induce him to make her his devisee.
    6. -: Acquirement of Property. It is immaterial how.testator ■ acquired the property disposed of by his will, whether with the assistance of his disinherited children or not.
    Appeal from Jackson Circuit- Court. — How. Hermann Brumback, Judge.
    Affirmed.

      O. A. Lucas, Allen S Allen and J. J. Williams for appellants.
    (1) There was substantial evidence that testator was of unsound mind at the time of the execution of the will in question, and that he did not have mental capacity to execute said will, and this case should have gone to the jury upon that issue. Knapp v. Trust Co., 199 Mo. 664; Hill v. Boyd, 199 Mo-. 448-; Meier v. Buchter, 197 Mo. 88; Elliott v. Welby, 13 Mo, App. 19'; Sehr v. Lindemann, 153 Mo. 289; Fulbright v. Perry Co., 145 Mo, 432; Muller v. St. Louis Hospital Assn., 73 Mo. 242, 5 Mo. App. 390; 1 Clevenger on Med. Jur. on Insanity, pp. 347, 348; Southworth v. Southworth, 173 Mo. 73; Rood on Wills, secs. 122, 123; 1 Redfield on Wills (4 Ed.), p. 537; Harrell v. Harrell, 1 Duvall (Ky.) 204; Cassoday on Wills, sec. 460; Ballentine v. Proudfoot, 62 Wis. 220; Walls v. Walls, 99' S. W. 969, (2) There was substantial evidence that testator sustained immoral relations with Mary Hanson, and was under her influence, and that she acquired and exerted such undue influence over the mind of the testator at the time of the execution of the will, that she was made practically sole beneficiary, and upon that issue this cause should have been submitted to the jury. Bush v. Bush, 87 Mo, 486; Gorden v. Burris, 141 Mo. 612; Meier v. Buchter, 197 Mo. 91; Knapp v. Trust Co., 199 Mo. 663; Hill v. Boyd, 199 Mo, 449'; Mowry v. Norman, 103 S. W. 15; Sunderland v. Hood, 13 Mo. App. 239; Sunderland v. Hood, 84 Mo. 293; Dean v. Nealy, 41 Pa. St. 312; King v. Gilson, 191 Mo. 327; Bradford v. Blossom, 190 Mo, 143; Roberts v. Bartlett, 1901 Mo, 703; Hughes v. Rader, 183 Mo. 630; Dausman v. Rankin, 189 Mo. 707. (3) Where the testator lived in a state of concubinage with defendant, the chief beneficiary, both before and after the will was made, and up to his death, such acts were suspicious circumstances and constituted evidence, along with other facts and circumstances in this cause, of undue influence, upon which this cause should have been submitted to the jury. Sunderland v. Hood, 13 Mo. App. 236; Sunderland v. Hood, 84 Mo. 293; Dean v. Negley, 41 Pa. St. 312; Shipman v. Furniss, 69 Ala. 555; 29 Am. and Eng. Ency. Law (2 Ed.), 130, 131; Smith v. Henline, 174 111. 196; Reichenbach v. Ruddach, 127 Pa. St. 564; McClure v. McClure, 86 Tenn. 173. (4) That Mary Hanson exercised undue influence over the testator should be presumed as a matter of law, and tbe burden should be on proponents to free her of this presumption. Barkley v. Cemetery Assn., 153 Mo. 315; Eoberts v. Bartlett, 190 Mo. App. 702; Sunderland y Hood, 13 Mo. App. 232, 84 Mo. 293; Maddox v. Maddox, 114 Mo. 46. (5) The court erred in excluding portions of the depositions of Ellen Mills, and John Mills, and in excluding other competent, relevant and material evidence. Bridwell v. Swank, 84 Mo. 472; Carl v. Gabel, 120 Mo. 297.

      Milton Moore and G. 0. Tichenor for respondent Mary Hanson.
    (1) There is neither substantial nor even unsubstantial evidence to show that Weston did not have sufficient capacity to make a will on June 12, 1899'. Archambault v. ■ Blanchard, 198 Mo. 425; Wood v. Carpenter, 166 Mo. 487; Jayne v. Trustees, 192 Mo. 130; Catholic University v. O’Brien, 181 Mo. 91; Brink-man v. Eueggesick, 71 Mo. 556; Yon de Yeld v. Judy, 143 Mo. 363. Mere opinions of witnesses, unaccompanied by any testimony showing any particular act, or' fact, evidencing incompetency, do not make out a case of incompetency when the testimony shows that the testator knew what he was doing and to whom he was giving his property. Southworth v. Southworth, 173 Mo. 73; Leach v. Burr, 188 U. S. 515. (2) There was no evidence of undue influence in the case. Lorts v. Wash, 175 Mo. 505; Kischman v. Scott, 166 Mo. 226; Campbell v. Carlisle, 162 Mo. 646; McFadin v. Catron, 138 Mo. 218; Martin v. Bowdern, 158 Mo. 393; Eiley v. Sherwood, 144 Mo. 366. Eemarks of Mary not in hearing of testator do not tend to show undue influence. Garland v. Smith, 127 Mo. 583; Defoe v. Defoe, 144 Mo. 465. (3) “He may have formed an attachment for strangers stronger than that for his children, which should not exist, but the law does not prevent him from gratifying his whims or caprice, in the testamentary disposition of his property.” Sunderland v. Hood, 84 Mo. 293; Sehr v. Lindemann, 153 Mo. 292; Moore v. Moore, 67 Mo. 193; Berberet v. Berberet, 131 Mo. 411; Maddox v. Maddox, 114 Mo'. 47; Sehierbaum v. Schemme, 157 Mo. 12. We do not understand that Judge Lamm, in Meier v. Buehter, 197 Mo., entertains a different opinion. The opinion may show that he thinks that the statutes of this State should be changed so as to put limitations upon the power of disposition by will. He says, in effect (p. 87), that where there is substantial evidence of undue influence, unsubstantial evidence like disinheriting an heir ’may be heard to aid it. In other words, two pieces of unsubstantial evidence do not make substantial evidence— add unsubstantial evidence to unsubstantial evidence and the result will be unsubstantial evidence — but if there is substantial evidence which will sustain a verdict, then unsubstantial evidence, like disinheritance, illicit intercourse, etc., is proper to add to the probability of the substantial. See, also, on the subject of undue influence, Berger v. Fevre, 186 U. S. 124. (4) The reasoning in the cases just quoted from applies to cases where illicit intercourse has been shown between testator and beneficiary prior to the making of the will. In its nature it ranks as unsubstantial evidence, but it is admissible where there is substantial evidence of undue influence.- A man can will or deed to his mistress because the statute does not prohibit it. The law does not require a grantor or testator to be a virtuous man in order to make a deed or a will — the law does not require a woman to be virtuous in order to take title by deed or will. Sunderland v. Hood, 84 Mo. 297; Matter of Mondorf, 110 N. Y. 456; Monroe v. Barclay, 17 Oh. St. 317; O’Neal v. Farr, 1 Bich. Law 84; Dickie v. Carter, 42 111. 377. The brief of appellants cites Dean v. Nealy, 41 Pa. St. 312. This case is commented on in Sunderland v. Hood, supra. The latest utterance on this subject by the Supreme Court of Pennsylvania will be found in Lewis’ Estate, 210 Pa. St. 599. See, also, In re Middleton’s Will (N. J.), 59 Atl. 454. (5) Kindness on the part of a legatee or devisee towards testator is not undue influence, even though they are not related. Campbell v. Carlisle, 162 Mo. 646; Kischman v. Scott, 166 Mo. 226; Mackall v. Mackall, 135 U. S. 167; Norton v. Paxton, 110 Mo. 466. (6) How testator got his property, is not an issue in this kind of suit. Crossan v. Crossan, 169' Mo. 631; Ormsby v. Webb, 134 IT. S. 65; Conch v. Gentry, 113 Mo. 257; Glover v. Ins. Co., 130' Mo. 186; Norton v. Paxton, 110 Mo. 467.
   BURGESS, J.

— This is a suit to,set aside the will of Thomas Weston, deceased, on the grounds of testamentary incapacity,' and undue influence on the part of defendant, Mary Hanson. The contestants are the children and lawful heirs of the testator. By the terms of the will in controversy, dated June 12, 1899', the entire property of the testator, amounting in value to about $15,000, is given to the defendant Mary Hanson, with the exception of one dollar bequeathed to each of the plaintiffs. A demurrer to the evidence was sustained by the court, and the jury, by mandatory instruction of the court, returned a verdict sustaining the will. Judgment was entered accordingly, from which judgment, after ineffectual motions for a new trial and in arrest, plaintiffs appeal.

Thomas Weston, by birth an Englishman, died in February, 1904, at the age of about seventy years. He first met the defendant, Mary Hanson, in England, while over there with his wife and one of his daughters. The young woman was a niece of his wife, and about twenty years of age. From the first he showed a marked affection for the young woman, and she apparently for him. He again visited England in 1895, and brought Miss Hanson to this country upon his return, and she stopped at his home in Kansas City for five months, when she went to work as a servant girl for Major Jones.

The evidence for the contestants, which is very voluminous, tends to show that before the coming of Mary Hanson the testator was kind to his family, and provided well for them, but that after she came, his conduct and bearing toward his family began to change. He seemed to care far more for the society of Mary Hanson than for that of his wife or daughter, Mary, who were the only members of his family then living with him; and he treated his wife with great disrespect, repeatedly cursing her and applying to her the vilest epithets, such as “old bitch,” “she-devil,” etc. He demanded that his wife get a divorce from him, and one witness testified that the testator offered him fifty dollars upon 'Condition that he, witness, would cause some trouble in the testator’s family which might bring about a divorce proceeding. Once in the presence of the Hanson girl, he beat, choked and cursed his wife, while the girl did nothing to restrain him. So harsh and cruel became his treatment of his wife, and SO' pronounced his attentions to the defendant, that his wife finally sought for a divorce and secured the same on June 8, 1899. Pour days afterward^ he made the will in question. The day after the divorce was obtained, he conveyed part of his property, by deed, to his former wife, and she relinquished her dower interest in the remainder of his real property. A former will of the testator, dated November 10', 1893, was introduced in evidence. By that will he left all his property to his wife and children. The evidence shows that the testator was a powerful man physically, and had been a hard worker most of his life, was shrewd in business, and possessed considerable property. He owned five houses on Central street, Kansas City, in one of which he lived; also two farms, comprising 110 acres,, within a few miles of Kansas City. Near the corner of Wyandotte and 39th. street, Kansas City, about a block from his residence, he owned a large lot which he turned into a vineyard, and on this piece of ground he built for himself a little house which was called the grapery. This cottage, it appears, was a favorite resort of Mr. Weston and the defendant, Mary Hanson. The girl worked as a servant for different families, not staying long in any place, and spent most of her evenings at the testator’s house, he usually accompanying her on her return to her employer’s house. She was, employed for a time by a Mr. Lee, whose home was close to the lot in which was the little cottage referred to, and she was frequently seen going into this cottage, one "witness testifying that she saw Mr. Weston and Mary Hanson coming out of said cottage about twelve o’clock one night, some months before Mrs. Weston obtained the divorce, and the evidence was that they were a great deal together.

The deed from Mr. Weston to his divorced wife, and which was dated June 9th, 1899', was introduced in evidence. For a recited consideration of $6,000' it conveys to her, her heirs and assigns, lots thirteen, sixteen and seventeen and part of lot fourteen, in Arnold’s Re-survey of Cross’s Addition to Westport, now a part of Kansas City, Missouri. In addition to this -deed, Mrs. Weston testified that the testator also gave her $700 in money. On the same day this deed was executed Mrs. Weston gave to- the testator a quit-claim deed to lots four, five, fifteen and part of lot fourteen in said Addition to Westport, now a part of Kansas City, also to two- farms in Jackson county, Missouri, comprising about 110 acres. This latter deed was made by Mrs. Weston for the purpose of relinquishing her dower interest in the real property described, and which was owned by the testator.

The question was asked Mrs. Weston if she believed her husband knew what he was doing at the time he executed the deed to her. She replied that she did not kno-W; and didn’t know whether he was in his right mind or not. Being asked if she thought he knew enough to take the quit-claim deed relinquishing her dower in the rest of his property, she answered, “I suppose he did.”

Mrs. "Weston further testified that prior to 1895, when Mary Hanson came over from England with Mr. Weston, the relations existing "between the testator and his family were all right, "but that after Miss Hanson came, the testator’s bearing and conduct towards her and the children changed; that he wouldn’t allow her to do anything for him, and that Miss Hanson did it all; that the testator had ulcers on his legs which he would allow no one to bandage or dress except the defendant ; that he told his children to stay away from the house and that he* didn’t want them there; that he treated Miss Hanson well, and gave her money; that Misa Hanson stayed with them five months when she first came over, and then went to work as a servant for a Major Jones, and afterwards for a Mr. Lee.

“Q. Did you ever see her and Mr. Weston together at any time, or going out together, while she was at your house or while she was living at other places? A. Yes, sir.

“Q. Well, when and where? A. Well, she used to go out to the farm and different places.

“Q. Would you see them often or otherwise? A. Very often, sir.

“Q. Would they come back the same day? A. No, sir. Sometimes they would come back the same day, and sometimes they would stay a week.

“Q. What, if anything, did you ever see her doing to Mr. Weston? A. She used to fix his leg and do everything for him that had to be done. Of course, he wouldn’t let me do anything for him.

“Q. Go airead, and state anything else you ever saw them doing? A. While he was laying sick in bed one day she came down from Mr. Lee’s and she lifted up the sheet and kissed him. I saw her do that.

“Q. State anything else, Mrs. Weston, that yon recall of their actions towards each other; what was done or what they did? A. Well, they was always together. I never knew anything else when she was there. He used to go out with her at night and he used to stay until a late hour and never come in, and I used to lay down on the little couch at the side of the door to hear when they come in, for fear I should not hear him. He used to try the door very gently. I always stayed up until he came in, and I used to* lay on that couch so1 I could hear when he came to the door, so that I never scarcely went to sleep; and he said, ‘Why don’t you go to bed?’

“Q. Did you ever see them at any other time go to this cottage in the vineyard? A. Yes, sir, I saw them go often.

“Q. Now, do you know how many times you ever saw them go into that cottage? A. No, sir; but I know they went very often; they were there mostly every night; I know that.

“Q. Was that before or after the divorce was obtained? A. Before.

“Q. Did you ever go away from home and leave them there at the house? A. Yes, sir, sometimes. I had to go to town to my boys and get what I had to have.

“Q. When you came back what did you find, if anything? A. Well, I have found that the bed would be made over from what I made it up at different times.

“Q. State what the condition of the house was at any time you went back there, as to being open or closed? A. When I went down town one day, I hadn’t been down but about an hour and a half, and when I came back the door was fastened.

“Q. Who unlocked it so you could get in finally? A. Mary Hanson.

“Q. "Who was there when you got in there? A. Mr. Weston.

“Q. And who else? A. No one.

“Q. Did you ever see them together, Mrs. Weston, and if so, what their conduct was towards each other ? A. Yes, sir. Whenever they would be- sitting there on the sofa, they always sat together taking hold of hands.”

The witness further testified that Mr. Weston asked her how much she “would take of the property to go and get a divorce,-” that he cursed her, grabbed her by the throat and choked her, and threw her across a stool that was in the room; that this was done in the presence and hearing of Mary Hanson; that one day she asked him for some money, and he answered, “You will never have any more money from me; ’ ’ that she had no money from him for three years thereafter, and she was compelled to wear her daughter’s old shoes.

Several witnesses testified to having seen Mr. Weston and Mary Hanson numerous times driving together, and out visiting at his farms. J. J. Sechrist lived on a farm adjoining Mr. Weston’s lands, and Mr. Weston and Miss Hanson visited at his home. One time, while there, he saw Miss Hanson with her head on Mr. Weston’s bosom, and “saw her touching his whiskers.” Mrs. Sechrist testified that she saw them “sitting right close to each other, early and late to-together,” and noticed that he was “looking real loving to be such an old man: ’ ’ that she often met him going and coming between the city and farm, and “he always had this woman with him. ’ ’

Mary Schmidt, daughter of a man who lived on one of Mr. Weston’s farms, testified that she saw the testator and the defendant often at the place; that Miss Hanson was very loving with him, and that on one occasion, when Miss Hanson soiled her dress while visiting at their house, she remarked to witness, “I don’t care; unde will buy my dresses; everything uncle has got I will get. ’ ’

Richard Weston, a nephew of the testator, lived on one of the farms, and testified at the trial that he saw the testator and Miss Hanson at the farm as often as two or three times a week, and that they sometimes stayed over night; that there was a tool house or workshop on the farm in which was a bed and some furniture, and that Mr. Weston slept there and kept the key in his possession. Witness would not say where Miss Hanson stayed, but he saw her with Mr. Weston mornings and evenings at his house and about the farm. He once saw Miss Hanson sitting on the old man’s lap. and kissing him. On another occasion he heard Miss Hanson remark to his wife, “My uncle will buy me anything; I can get anything I want from my uncle.” Witness further said that before Miss Hanson came to the testator’s home the family seemed to be getting along harmoniously, but that soon after she came he noticed that the testator would not speak to Mrs. Weston; that the testator told him that he was determined to get a divorce from that “old bitch,” meaning Mrs. Weston; that he asked him (witness) to ‘ start the proceedings towards a divorce, ’ ’ and that he would give him fifty dollars for so doing; that on another occasion testator said to him that “before he seen his children get anything he would see hell froze over. ”

William A. Weston, a son of the testator, testified that he lived in a house of his own in Kansas City; that one day in the year 1897, while visiting at his father’s house, he overheard Miss Hanson remark to his father that she didn’t like to see him (witness) around there, and heard her ask Mr. Weston to tell witness to keep away from there; that thereafter he noticed that his father was “kind of chilly” towards him; that he once saw Miss Hanson hugging his father in the barn, and on another occasion discovered her sitting on his father’s, knee at the house.

Ellen Mills, a niece of the testator, testified that she came over from England in 1896, and stopped a few weeks at Mr. Weston’s house, Miss Hanson being there at the same time; that Miss Hanson and Mr. Weston were together a great deal; that she would sit on his lap, caress him and comb his hair and beard; that the girl would dress and bandage his leg, and he would not allow his wife near him; that when Mr. Weston was troubled much with his leg he would rub his head and pace to and fro on the floor and his eyes would be starting out of his head, and he would say, ‘ ‘ This damn thing will send me crazy; ’ ’ that one day, in a conversation with witness relative to his wife and property, he said, “She thinks she will get it all, but she shall not have one Gr— d— cent of it, and I will cut them off without a dollar — Polly will get it; she has been good to me.”

Mrs. Williamson, a neighbor of Mr. Weston, testified that the testator, in the presence of Miss Hanson, spoke to witness one day with reference to selling his property on Wyandotte street; that he said, “I can’t get my price for it,” and that Miss Hanson said, “I would sell it for whatever I could get for it, and keep the children from getting that much.”

There was also evidence to the effect that after Mrs. Weston was divorced from the testator, he moved into another house near by, and that Miss Hanson soon afterwards quit working for others and stayed and slept in the same house; that afterwards Mr. Weston and Miss Hanson removed to Rosedale, and that they lived together in the same house for about two years, until he died.

Prank M. Dickinson, custodian of the safe deposit vaults of the New England National Bank, at Kansas City, testified that Weston, on June 13, 1899, rented a bos in these vaults, and signed a contract therefor; that some time afterwards Miss Hanson signed the contract with him; that it was arranged in this way so that she should have a key and access to the box along with Weston. Witness did not know whether she actually had the key or not, and he did not remember ever having seen her go into the vault.

Mr. Getman, administrator of the Weston estate, testified that he went to the box officially, examined its contents and found in it a warranty deed from Weston to Miss Hanson, properly .acknowledged, dated May 3, 1902, to his farm lands in Jackson county, and another deed from Weston to Mary, dated April 26,1902, to a tract of land in Kansas ; also a hill of sale of testator’s personal property at Rosedale, including notes owing him by others; also a certificate of deposit by Weston, issued by American National Bank of Kansas City, Missouri, for $5,500, payable to the order of “self or Mary Hanson,” dated November 11, 1903. There was also in the box a certificate of deposit for $1,500, payable to Weston individually; also $670 in cash and a note for $100 payable to Weston.

Dr. Ayers, who became testator’s physician in 1888 and continued so, off and on, to the time of his death, testified that Weston had chronic ulcers on his legs, and that he also had urinary calculus which caused him excruciating pain and very great illness at times.

“Q. Well, was there any change in anyway in him, and if so, when? A. When I first treated Mr. Weston he was as any other man in his family relations. He was in all respects, as I saw him, quite a normal man; but there was a change in his general bearing which I noticed, of course', more particularly with reference to his family, as I was quite well acquainted and went to his house frequently. When I first knew Mr. Weston, his family, during his sickness when he was laid up at home, waited upon him as a man’s family would wait upon him. Later, there was less of this attention; they were less about him when he was sick.

‘ ‘ Q. Describe the nature of that ulcer ? A. It was a tissue degeneration. When a man has chronic ulcers on his legs it means that the circulation is had; that there is a depleted condition of his system, and there is that tendency to decline which means the advance of old age and dissolution.

“Q. Did you ever observe anything affecting him in any other way ? A. I must ask you to let me be clear when you ask me that question. Do you mean to ask me whether there was any other effect from those ulcers, or the condition that produced the ulcers ?

“Q. I mean the general condition he was in. A. There must have been; there was a general atheroma^ tous condition.

“Q. What do you mean by that? A. It means a degeneration of the vessels that shows itself in the vessels, and is attended with a tendency to degeneration and impairment of the functions, of all the organs of the body, more marked in some than others.

“Q. Does that apply to the brain as well as other organs. A. Yes.

“Q. Now, restrict yourself as to his sanity up to that time, or shortly afterwards, to show the condition of his mind on June 12, 18991. A. It must have been in the winter, I should say then, of 1898 and 1899', when I met Mr. Weston on a car. I asked him how he was getting along. He seemed to be in an abstracted mental condition and didn’t talk as freely as he used to, and I dropped the subject. He then went back to it and said, ‘You asked me how I was a while ago’—

“Q. Did this conversation throw any light on your mind in forming your opinion as an expert of his mental condition? A. I am not an expert on mental conditions.

“Q. Did it throw any light on your mind as to his mental condition at that time as to his sanity or insanity? A. It caused me to raise a question at that time. ’ ’

The witness referred to a remark which Mr. Weston made at the time which shocked him, and being permitted to explain what it was, he said: “I asked Mr. Weston how his wife was, and he turned on me — I had asked him how his health was, and he said he had the same old leg that bothered him off and on, and his kidneys had given him trouble, and I asked him how Mrs. Weston was, and he turned on me and said, ‘The she devil;’ he said, ‘The she devil never gets sick enough, ’ or words to that effect. Of course I was very much shocked.”

“Q. State what his mental condition was as compared with what it was when you first knew him? A. Well, Mr. Weston was a very agreeable man personally. He seemed to be a pleasant man in his home, and he was fond of a jest and liked to tell a story and he loved to hear them told; he was a man of a good deal of speech.

“Q. That was along in 1888' when you first knew him? A. Yes, sir.

“Q. What was his condition from that time on as you observed it, up to and including 18991? A. Well, I think there was a difference.

“ Q. What difference did you notice? A. I thought Mr. Weston was not so fond of a story; he didn’t enter into jests. He seemed rather morose, and I thought at times somewhat of a hypochondriac.

‘ ‘ Q. Explain what a hypochondriac is to the jury? A. A hypochondriac is a person wlm is morose and takes rather a gloomy view of things and does not enter into ordinary things that generally interest people, but is disposed to take a dark view of things.”

Another witness, V. I. Banta, who was alderman of the city of Westport, testified that Weston was appointed inspector of the waterworks plant which the city was constructing in 1895 or 1896; that at times Weston “did not seem to act right,” and he thought, from Ms actions, that “he was either drinking or crazy.”

The will in question reads as follows:

“I,- Thomas Weston, of Kansas City, in the county of Jackson, State of Missouri, do hereby make and publish this my last will and testament, revoking and setting aside all wills heretofore made by me.

“1. I desire that my body may be buried plainly but decently, and that on the headstone at my grave there be shown my name, date and place of birth, and the date and place of my death.

“2. I desire that all my just debts be paid as speedily as is required by the laws of Missouri.

“3. I am at this time unmarried, my former wife, Mary Weston, having been divorced from me at the June term of the circuit court of Jackson county, Missouri, 1899'. I made with her a fair division of the property that I was then worth, and she is sMtably provided for.

“4. I have but five children living, to-wit: my sons George Weston and Edgar William Weston, both of whom live in Kansas City, Missouri, and my daughter, Clara Minnie Storr, formerly Weston, wife of Renner Storr of Rosedale, Kansas, Mary Jane Weston, of Kansas City, Missouri, and Alice Theuringe, wife of Leonard Theuringe, who lives in Tennessee. To each and every one of my said children I give, devise and bequeath the sum of one dollar and no more. One or more of my children died in infancy, but none left heirs at law.

“5. I give, devise and bequeath unto Mary Hanson, who now resides on Baltimore avenue (within the limits of the former city of Westport) of Kansas City, Missouri, all the rest, residue and remainder of my property, real, personal and mixed, wherever situate.

“I hereby appoint George W. Lee, of Kansas City, Missouri, the executor of this my last will and testament.

“Given under my hand this 12th day of June, 1899.

“Thomas Weston,

“Testator.”

Milton Moore, the lawyer who drew the will, testified for the defendants as to how he came to- do so. He said that the testator came to his office and told him that he wanted some property matters settled and desired his advice in the matter. He went with the testator to the office of Hamner, Hardin & Hamner, where he met Mr. Ben T. Hardin and Mrs. Weston, and Mr. Hardin showed him a deed written by him, dated June 9th, by which the testator conveyed certain lots of land in Kansas City to Mrs. Weston. The testator told him that his wife 'had sued him for a divorce and had gotten it the day before-. On the same day the testator also told him that he wanted to make- a will, and that he would make it to Mary Hanson, and witness told him to come to his office when he got ready, and he would draw up the will for him. Up to this time he', witness, had never heard of Mary Hanson. Two days afterwards, on June 12th, the testator came to his office, when the will was drawn up and executed. The testator -gave the place of residence of George Weston as Kansas City, Missouri, Edgar William Weston as Kansas City, Missouri; Clara Minnie Storr, Rosedale, Kansas; Mary Jane Weston, Kansas City, Missouri, and Alice Theuringe, wife of Leonard Theuringe, residing in Tennessee. These were all the testator’s children. The name of Mary Hanson and her place of residence were also given by the testator, and he it was that suggested the provision in the will “that on the head-stone at my grave there be shown my name, date and place of birth, and the date and place of my death.” Mr. Weston also suggested that George Lee be named as executor. Witness further testified that Mr. Weston at the time of making the will was unquestionably of sound mind, and was a man of strong character and great physical strength. That the reason he gave for disinheriting his children was that “in the divorce proceedings they all turned against him.”

G-. L. Love, one of the witnesses to the will, testified that he signed it in the presence of Mr. Weston and the other witnesses; that he thought the testator at the time was of sound mind; that he had known him several years, that he was a stout, rugged man, of a good deal of force and determination.

The other witness to the will was G-eorge PL Kelly, a lawyer. He testified that he considered Mr. Weston of sound mind at the time he executed the will, and that he was a man of strong will power.

The first question presented for consideration upon this appeal is as to. whether Thomas Weston, the testator, had sufficient capacity to make the will at the time he executed it. Had he sufficient intelligence- to know what property he owned, what disposition he was making of it, all the persons wlm reasonably came within the range- of his bounty, and to transact his ordinary business affairs? These 3^ ^q tests of capacity to make a will. [Harvey v. Sullens, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307; Norton v. Paxton, 110 Mo. 456; Couch v. Gentry, 113 Mo. 248; Kischman v. Scott, 166 Mo. 214; Jackson v. Hardin, 83 Mo. 175; Riggin v. Westminster College, 160 Mo. 570; Martin v. Bowdern, 158 Mo. 379; Fulbright v. Perry County, 145 Mo. 432; Von De Veld v. Judy, 143 Mo. 348; Riley v. Sherwood, 144 Mo. 354.] Governed by these tests, this court will examine the record to see whether there was substantial evidence to take the case to the jury, and, if there was, convict the court who heard all the evidence- of error in sustaining the demurrer interposed by defendants to the evidence and in refusing to submit the case to the jury. In doing this, however, we are not to- lose sight of the fact that the testator’s brutal treatment of his wife, as shown by the evidence in this case, is not one of the tests of testamentary capacity, for a man may be unkind and brutal in his treatment of his wife and yet have capacity to make a will.

The witnesses to the will, of whom there were three, all testified that the testator was sane at the time of the execution of the will, and there was not a scintilla of evidence to the contrary. The will was prepared in exact compliance with his wishes as indicated at the time. He gave the lawyer who drew up the will the names and places of residence of each of his children and the devisee named in the will, the description of all his property and how he wanted to dispose of it, and directed that the will provide, as was done, that on the headstone at his grave there be shown his name, date and place of birth and the date and place of his death. Besides this, two or three days before the execution of the will the testator divided his property about equally with his wife, Mrs. Mary Weston, by deeding to her certain real estate and giving her seven hundred dollars in money, as consideration for her relinquishment of her dower in his remaining estate. She is, therefore, not a party to this suit, and her testimony respecting the testator’s brutal treatment of her can only be considered with relation to and as throwing light upon the question of his capacity to make the will at the time of its execution.

Mrs. Weston testified as a witness for plaintiffs, and, upon cross-examination, was asked several times if she thought her husband was insane at the time he executed the deed to her, but as often evaded the question or declined to answer, but finally said she did not know. But with respect to the will itself, in view of the testimony of the attesting witnesses and especially of that of Mr. Moore, who wrote it at the direction of the testator and signed it as a witness, the testimony introduced by plaintiffs for the purpose of showing that the testator was incompetent to make the will was utterly weak and valueless. As was said in Wood v. Carpenter, 166 Mo. l. c. 487, “No one who reads that will can believe for a moment that the one who' dictated it was incapable of making a will.”

In Fraser v. Jennison, 42 Mich. l. c. 229, Judge Cooley, speaking for the court, said: “Nothing is more unquestionable than that, by the Statute of Wills, it was intended that every man should be at liberty to-select the objects of his bounty among his, relatives at his discretion, or even to pass them all by if so disposed. ’ ’ As was said by Gantt, J., speaking for the court, in Sayre v. Trustees of Princeton University, 192 Mo. l. c. 130: “It would indeed be strange that a man could do all that he did, that he could gather together a fortune, make loans, examine his titles, deal with people generally, and yet not possess the capacity to make a will. The fact is that he possessed this ca-' pacity, and his actions in business demonstrated beyond a doubt that he was perfectly sound of mind on August 7, 1899. To sanction the setting aside of the will of such a man under such circumstances would in effect be to repeal the Statute of Wills.”

In Brinkman v. Rueggesick, 71 Mo. l. c. 556, Judge Napton, speaking for the court, said: “It is sufficient if the testator knew what he was doing and to whom he was giving his property. And it is conceded in most of the cases that a man may be capable of making a will, and yet incapable of making a contract, or managing his estate. ’ ’

In Von De Veld v. Judy, supra, Judge Sher,wood> speaking for the court, said: ‘£ Although when a charge of insanity or imbecility is made against a testator, evidence is competent to show the condition of his mind long prior to and closely approaching the time of the will’s execution, as well as the condition of his mind shortly subsequent to such execution^ yet the purpose of such prior and subsequent testimony is only to indicate the state of his mind at the very time the execution of the will took place. That is the true time to try bis mind. The fact of competency is to be decided by tbe state of tbe testator’s mind at tbe time tbe will was made, and although evidence is always admissible of prior and subsequent occurrences as tending to shed light on tbe question of tbe state of bis mental faculties and of bis bodily health on tbe day of tbe will’s execution, yet such evidence is only receivable for that purpose alone and is not otherwise to be regarded. . . . . Tbe admission that Smith stood ready tó establish did not go to the capacity of Judy to make a will, but to bis competency to make a contract, and our decisions all show that a man may be entirely competent as to tbe former, while incompetent as to tbe latter.”

In Southworth v. Soutbwortb, 173 Mo. l. c. 73, it is said: “Mere opinions of witnesses, unaccompanied by any testimony showing any particular act or fact evidencing incompetency, do not make out a case of incompetency when tbe testimony shows that tbe testator ‘knew what be was doing and to whom be was giving bis property.’ ”

There is nothing in tbe evidence disclosed by tbe record in this case which even remotely tends to show that tbe testator was not perfectly sane and in full possession of bis mental faculties at tbe time of tbe execution of tbe will. That be was unjust to bis children may be true, but we know of no law which prohibited him from disinheriting them if be was so inclined. If be was competent to make tbe will, of which we have no doubt, be bad tbe right to dispose of bis property as be thought proper.

It is true that Dr. Ayers, who became testator’s physician in 1888, and so continued, off and on, to tbe time of bis death, testified that tbe testator bad chronic ulcers on bis legs and that be bad urinary calculus which caused him excruciating pain and very great illness at times, but neither these facts nor any others in evidence tended to show that tbe testator did not have capacity to make the will, and really amounted to nothing. He was a man of more than ordinary intelligence, had occupied responsible positions, attended to his own business affairs, bought property and accumulated quite an estate, was perfectly sane at the time he made the will, and if a will executed under such circumstances will not withstand the assaults of persons disappointed by its provisions, the statute authorizing men over twenty-one years of age to dispose of their property by will is a dead letter and should be repealed. In reaching this conclusion, too, we assume that, owing to the unnatural disposition of his property by the testator, the burden was upon the defendant to establish the validity of the will.

It is next contended by plaintiffs that the will was obtained by the undue influence exercised over the testator by Mary Hanson, the devisee named therein, and that she acquired and exerted such influence over his mind at the time of the execution of the will that she was made practically sole beneficiary. This contention is based upon evidence which tended to show that the testator, for some time before, and up to and at the time of the execution of the will, sustained immoral relations with Mary Hanson.

In Lorts v. Wash, 175 Mo. 505, Judge Fox quotes with approval the following from Sehr v. Lindemann, 153 Mo. 276: “By undue influence is meant such influence as amounts to force, coercion or over-persuasion which destroys the free agency and will power of the testator. It is not merely the influence of affection or desire to gratify the wishes of one who is near and dear to the testator. And ‘ affirmative proof of such influence is required to be made, either by direct facts shown, or by facts and circumstances from which undue influence results as a reasonable and fair inference, and not a mere conjecture.’ ”

Plaintiffs, in support of their contention, cite a large number of authorities, but it will be necessary to notice only such as bear directly upon tbe question of undue influence.

In Sunderland v. Hood, 13 Mo. App. 232, it was held that a will produced by influence arising from unlawful sexual intercourse between tbe testator and tbe legatee is not void, unless such influence was exerted in restraint of tbe will of the testator. The court said: ‘ ‘ There is no direct evidence that the defendant exerted any influence over Sunderland at the time of making his will, unless we are to hold that, if a man knowingly and wrongfully lives in a state of concubinage or adultery, and the woman, by the influence of such cohabitation, procures a will from her paramour, cutting off his relatives, the will must be held void for illegal influences. But we do not think this is the law. If the will was the free choice and judgment of a person in possession of the necessary facts, not deceived or tricked in anv way, and really free at the time he made the will, we do not think that the law will consider the morality of his motives. Every will is procured by some influence. It is enough, as to this, that free choice and judgment are not. interfered with. The law does not prohibit a man from making a will in favor of a woman with whom he has maintained, and maintains at the time of making a will, an illicit intercourse.”

That ruling was approved by this court in the same case (84 Mo. 293), wherein it is also ruled that the case of Dean v. Negley, 41 Pa. St. 312, does not give any support to the position that “the influence of an adulteress over her paramour will, in itself, avoid his will in her favor.” While in the subsequent case of Rudy v. Ulrich, 69 Pa. St. 177, it was held that the ruling in Dean’s case was correct under the circumstances, it is denied, as a universal proposition, that a meretricious relation between the testator and the legatee is of itself proof of undue influence. To the same effect is Wainwright’s Appeal, 89 Pa. St. 220.

In Shipman v. Furniss, 69 Ala. 555, it was held that where one, living in illicit relations with another, gives to such person property of considerable value, especially when the donor in making the gift excluded natural objects of his bounty, the transaction will be reviewed by a court of equity with such suspicions as to cast upon the donee the burden of proving that the donation was the result of free volition, and was not superinduced by fraud or undue influence. But in that case the legatee’s own attorney drafted the instrument, and she accompanied the grantor to the city and also to the attorney’s office, both when the instructions were given for its preparation and at the time it was signed. The evidence in the case failed to show that any compulsion was used tending to overcome the free agency of the grantor at the immediate time the deed was signed, but his habits of frequent and excessive intoxication and sexual indulgence seemed to have impaired both his mental and physical condition to such an extent as to render him easy of control and susceptible to wrongful influence, and he came under the absolute control and dominion of the legatee.

In Smith v. Henline, 174 Ill. 184, it is held that in determining the question of undue influence, the jury may consider the fact of the existence of an illicit relation between the testator and the beneficiary in the will where there is proof tending to show constraint and interference by her, and the testator’s impaired mental capacity, loss of will power, sickness or disease, when making the will. But in that case the devisees were present at the time of the execution of the instrument, and it was through their machinations and fraud that its execution was procured; and the court clearly intimated that it was because there was evidence tending to show constraint and interference, impaired mental capacity, loss of will power, and sickness or disease, at the time of the making of the will, that the burden was upon the beneficiaries in the will to show that it was the free and voluntary act of the testator.

In McClure v. McClure, 86 Tenn. 173, it is held that suspicion usually attaches to a bequest to a mistress, especially if it be unnatural. But suspicion is not evidence of anything, and is entitled to ns> consideration in the trial of any cause.

These cases are all answered by the evidence in the case at bar, which does not show that the defendant was present at the time of the execution of the will. Nor does it show that she ever knew that it was about to be executed, or that she had any conversation with the testator in regard to it before its execution; but it does show that the testator was a man of intelligence, a shrewd business man who had occupied prominent positions, and that he was a man of fine physique and of strong will power; that he went alone to his attorney and employed him to prepare his will, gave him full and explicit directions as to how he wished to dispose of his property, also the names and places of residence of each of his children, /and was at that time in possession of all his mental faculties; and it is only in the absenee of some one or more of these conditions that the authorities which we have referred to, except Dean v. Negley, supra, and McClure v. McClure, supra, have held that .a presumption of undue influence arises from meretricious relations existing between the donor and the donee. Dean’s case has been overruled, or its holding modified, by subsequent cases in the same court, and this court and the St. Louis Court of Appeals declined to follow it. [Sunderland v. Hood, supra.] Besides, such an inference should not be drawn from the evidence relating to the relations which existed between the testator and the devisee in the case at bar, in the absence of proof that Mary Hanson “exerted her influence in the procuration of the will.” [Arnault v. Arnault, 52 N. J. Eq. 801; Dickie v. Carter, 42 Ill. 376.]

The presumption is in favor of the theory that the will expresses the purpose and intention of the testator. “Without proof that a mistress influenced a testator directly in procuring a will in her favor, it cannot he inferred from their relations that she secured an influence over him which she would naturally and improperly exert to advance her interest.” [Middleton’s Case, 68 N. J. Eq. 584; Monroe v. Barclay, 17 Ohio St. 317; Matter of Mondorf, 110 N. Y. 456.] The law-as announced in Middleton’s case, supra, is, as we understand it, the law of this State as declared in Sunderland v. Hood, 13 Mo. App. 232, and Sunderland v. Hood, 84 Mo. 293, and to which we adhere.

It is also claimed by plaintiffs that the court erred ’in excluding certain parts of the depositions of Allen Mills and John Mills, and in excluding other evidence which plaintiffs contend was competent, relevant and material. The record shows that the excluded testimony of Mr. and Mrs. Mills had reference to matters tending to show the existence of criminal relations between the testator and the defendant, and the other evidence excluded was to the effect that the testator acquired the property described in the will with the assistance of his wife and children. In the first place, it was immaterial how or in what way the testator acquired his property, and, in the next place, we have considered the appeal just as if immoral relations existed between the testator and the defendant at the time of the execution of the will and for an indefinite time, prior thereto.

For these considerations our conclusion is that the demurrer to the evidence was properly sustained, and that the judgment should he affirmed. It is SO' or- - dered.

All concur.