author: SMALL, C.

text:
    G. A. SIDWELL and AUGUST SANDERS v. NATHAN L. KASTER and LEE KASTER, Appellants; G. A. SIDWELL and AUGUST SANDERS, Appellants, v. NATHAN L. KASTER and LEE KASTER
    No. 21,851.
    No. 21,850.
    Division One,
    July 11, 1921.
    1. DEED OF TRUST: Suit to Foreclosure: Trustee as Party. To a suit brought against the guardian and curator to foreclose a deed of trust executed by an insane person, the trustee is not a necessary party, and a failure to make him a party in no manner affects the validity of the sale.
    2. -: - — : Wife as Party: Waiver. If the divorced wife of the insane mortgagor was a necessary party to a pf oceeding brought against his guardian and curator to foreclose a deed of trust, the defendant should by answer or demurrer have raised the point that she was a necessary party, and having failed to do so waived the defect.
    3. FORECLOSURE SALE: Conspiracy Not to Bid: Inadequacy of Price. In a suit to quiet title, brought by the purchaser at a sheriffs sale of land worth $100 to $125 per acre, and another who had purchased after the sale and paid a part of the purchase price, against ' the mortgagor who claims the foreclosure proceeding was void, it will not be held that there was a conspiracy between the purchaser at the sheriff’s sale and the person to whom he subsequently sold that the buyer would not bid at said sale, there being no evidence that he would have bid or intended to bid had therd been no agreement to buy, and there being evidence that he could not get a clear title because of the outsanding dower of the judgment debtor’s wife, who by his fault had not been impleaded with him in the foreclosure proceeding. Nor under such circumstances will it be held that the price of $68.75 .per acre paid at the sheriff’s sale was inadequate, the wife’s dower not being included.
    4. CAUSE OF ACTION: Jurisdiction. The mere failure of a petition to state a cause of action does not deprive the court of jurisdiction.

      5. JURISDICTION: Suit Against Insane Person. The probate court does not have exclusive jurisdiction of suits against insane persons; the circuit court also has'jurisdiction of suits founded on claims against an insane person, whether they arose before or during guardianship. [Disapproving Johnson v. Kaster, 199 Mo. App. 501.]
    6. -: Judgment Against Guardian: Suit Against Restored Ward: Collateral Attack. Where judgment has been obtained in the probate court against the guardian of an insane person, and before payment such person is adjudged restored to his right mind, the creditor may bring suit in the circuit court against such restored person for the amount of his claim and obtain judgment against him; for by the express words of the statute where an insane person is adjudged restored to his right mind, the administration upon his estate in the probate court immediately ends, and the jurisdiction of that court over him and his estate is terminated, and he is subject to suit on any valid claim the same as any other person. And the fact that the petition for judgment in the circuit court recited an allowance by the probate court against his guardian on the same claim while he was yet insane, and asked for judgment for the amount of the allowance with interest from its date, alleging that said allowance constituted an indebtedness of the defendant, did not deprive the circuit court of jurisdiction of the suit, or render the judgment invalid, for whether the facts stated constituted a cause of action was a question for the circuit court to decide, and in a collateral proceeding that question is immaterial and the ruling at most erroneous, for the failure of a petition to state a cause of action does not affect jurisdiction. And in a suit by a purchaser under said judgment to quiet title brought against the defendant therein, said judgment cannot be held to be invalid on the theory that the allowance in the probate court was a judgment in rem against the defendant’s estate and the judgment in the circuit court was one in personam against him personally. [Disapproving Johnson v. Kaster, 199 Mo.. App. 501.]
    7. APPEAL FROM ERRONEOUS JUDGMENT: No Supersedeas: Execution: Title of Purchaser. Where the judgment of the circuit court in an action for debt was for plaintiff and was not void, but only erroneous, and on writ of error without a supersedeas staying execution was reversed, but before said writ issued execution was issued and levied on defendant’s land, the purchaser at such sale, if a stranger to the proceeding, takes the title, which is in no way impaired by such reversal.

      Appeal from Schuyler Circuit Court. — Ho». N. M. Pettingill, Judge.
    Affirmed (m part); Reversed {in part).

      Higbee & Mills, Rolston c& Rolston and Campbell é Ellison for appellant in No. 21850.
    (1) A circuit court is a court of general jurisdiction and has exclusive original jurisdiction in all civil cases not otherwise provided for. Art. 6, sec. 32, Mo. Constitution. (2) A judgment rendered by a court having jurisdiction of the subject-matter, from which no appeal has been taken, is binding and conclusive and cannot be impeached for any defect in pleading or proof. In a suit upon such a judgment the sufficiency of the petition on which it is rendered cannot be inquired into. Holt Co. v. Cannon, 114 Mo. 514. A judgment cannot be collaterally attacked for want of jurisdiction because the petition does not state a cause of action, since, if it states a case belonging to the general class over which the authority of the court extends, jurisdiction is conferred. Winningham v. Trueblood, 149 Mo. 572; Cole v. Parker, 207 S. W. 766. (3) "When a party to an action, being fully apprised of his rights, suffers judgment to go against him when he might, by the exercise of reasonable diligence in making his defense, prevent a recovery, he should not be allowed in any subsequent proceedings to reagitate questions which either were, or else could have been, adjudicated at the trial. Smith v. Kiene, 231 Mo. 233. (4) The Fogle judgment is not void, and is therefore not subject to collateral attack. Authorities under Point 2; Potter v. Whitten, 161 Mo. App. 127; McQuillin’s Mo. Practise, sec. 911. (5) Defendants’ answer does not tender an issue. The allegation that -the execution sale under the Fogle judgment is void is a mere conclusion.

      J. R. WMtecotton, A. D. Morris, J. W. Joyne and hosier & Morris for respondents in No. 21850.
    'The Fogle judgment is absolutely void because the Schuyler Circuit Court had no jurisdiction over the subject-matter of the action and the whole record so shows, and it may be attacked collaterally. Fogle v. Faster, 212 S. W. (Mo. App.) 565; Johnson v. Faster, 199 Mo. App. 501; Brown v. Chadwick, 79 Mo. 587; Moody v. Peyton, 135 Mo. 491; Black v. Black, 34 Pa. ,St. 354; Chandler v. Dodson, 52 Mo. 130; Art. 6, sec. 34, Mo. Constitution; Sec. 4056, R. S. 1909; 23 Cyc. 1059, 1060, 1073, 1074, and 1087; 17 Cyc. 1307-8; Works on “Courts and Their Jurisdiction,” sec. 26, p. 169; Smith v. Black,-231 Mo. 691; Draper v. Bryson, 17 Mo. 83; Heard v. Sack, 81 Mo. 616; Turner v. Edmonston, 210 Mo. 428; 15 R. C. L. p. 895, see. 374; 10 R. C. L. p. 1335, sec. 128; Railroad v. Lowder, 138 Mo. 538; Russell v. Grant, 122 Mo. 180; Adams v. Cowles, 95 Mo. 507.

      JoTwi T. Morris, A. D. Morris, J. W. Joyne and J. R. WMtecotton for appellant in No. 21851.
    (1) The court under the pleadings and statute had the right to “ accord full and complete relief, whether legal or equitable, ’ ’ to all the parties and to each of them as fully as the court could do in any proceeding that could have been brought by any of the parties. Sec. 253, R. S. 1919; Ball v. Woolfolk, 175 Mo. 285; Huff v. Land Co., 157 Mo. 65; Titus v. Dev. Co., 268 Mo. 239; Talbert v. Grist, 108 Mo. App. 499; Powell v. Crow, 204 Mo. 481. (2) Where there is' inadequacy of price coupled with evidence of unfairness or fraud an execution sale should be set aside. Walker v. Mills, 210 Mo. 690; Ayers v. Blair, 26 W. Va. 558; 17 Oyc. 1278; Roer on Judicial Sales (2 Ed.), p. 406, sec. 1087. (3) A bill in equity to set aside an execution sale when the grounds upon which the sale is sought to be set aside are not apparent from an inspection of the proceedings as in this case, will be sustained. 17 Cyc. 1282; Abbey v. Dewey, 25 Pa. St. 416; Philips v. Benson, 161 Pa. St. 421; Underwood v. Mc-Ough, 23 Grat. (Va.) 427. (4) The law will not tolerate any influence likely to prevent competition at a judicial sale, and it accords to every debtor the right and opportunity to a fair sale and to get a full price for his property. Cocks v. Izard, 7 Wall. (U. S.) 559; Underwood v. McVeigh, 23 Gratt. (Va.) 428. (5) The court in an equity suit on appeal will consider all the testimony and direct such judgment as the conscience of the court will approve disregarding the findings and judgment of the trial court below.

      Campbell <& Ellison, Higbee <$> Mills and Bolston dt Bolston for respondents in No. 21851.
    (1) There is no defect of parties. Sec. 1970, R. S. 1919; Utter v. Sidman, 170 Mo. 284. (2) The defense is a collateral attack and cannot be maintained. Lieber v. Lieber, 239 Mo. 1. (3)' Appellant by answer seeks to retain the fruits of the sale while in argument alone does he, by his attorneys, offer rescission. To rescind would be a condition precedent. Delpine v. Lume, 145 Mo. App. 549; Corby v. Bean, 44 Mo. 379, (4) The offer by attorney in argument cannot broaden the issues by the pleadings and is not binding on appellant. The judgment asked by appellant in the pleadings is cancellation of the note and the deed. Davidson v. Davidson, 249 Mo. 474. (5) A sale under execution, pending appeal where no appeal bond is given, is valid. Sec. 1473, R. S. 1919; Burgess v. O’Donoghue, 90 Mo. 302. (6) Availing one’s self of a legal right “such as proceeding to collect a valid judgment,” is not fraudulent. Nations v. Pulse, 175 Mo. 94. (7) Appellant’s answer concedes Sanders’ title. Appellant, therefore, has no interest in the result' of "this case.
   SMALL, C.

Appeal from Circuit Court of Schuyler County.

Suit, to quiet title to one-hundred and 'sixty acres of land, and also forty .acres of land adjoining thereto, in Section 2, .Township 64, Range 15, in said county.

The petition avers: That in February, 1918, the plaintiff Sanders became the owner in fee of said lands, and afterwards and on the same day entered into a contract to sell and convey said lands to his co-plaintiff. That his co-plaintiff has paid part of the purchase price, and a part of said purchase price is unpaid, and the deed has not yet been executed. That there is an agreement between said plaintiffs that, upon payment of said purchase-money, deed will be executed. That defendants claim some right or interest in said lands, and that they are entitled to the possession thereof, but that they have no such right nor interest. Plaintiffs pray that the respective titles be defined and adjudged, together with the right of possession thereof.

The answer, besides a general denial, sets up that the plaintiffs claimed the one-hundred and sixty acres under an execution sale in foreclosure proceedings against defendant Nathan L. Kaster,- which defendants say should be set aside, because of inadequacy of price paid by the plaintiff Sanders, brought about by reason of a conspiracy between the plaintiffs and others to prevent bidding at such sale, and by plaintiff Sanders purposely failing to make the trustee in the deed of trust, and the wife of said Kaster, parties to such foreclosure. That the plaintiffs claim title to the forty acres under an execution sale in the case of Fogle against the defendant, Nathan L. Kaster, which execution sale was absolutely void, because the court rendering the judgment had no jurisdiction, and that it was also void for inadequacy of price, and conspiracy between the- plaintiffs and others to suppress bidding. Other minor matters affecting such sale are also alleged, which will be noticed in the opinion. The sales of both tracts were made on the same day, February 11, 1918.

The reply put the matters alleged in the answer in issue.

Plaintiff Sanders testified in substance as follows: That both the forty-acre and one hundred and sixty-acre tracts were sold by the sheriff on the same day, February 11, 1918, while the same assemblage of bidders was present. Witness did not recollect that anyone made the statement at the sale, that there would be a defect in the title. He talked about selling to plaintiff Sidwell the same day he bought it. Had no previous agreement with him. Talked over prices. If he bought it, there was no price set. Sidwell was at the sale. Does not know why Sidwell did not bid. Does not remember whether he said he would give title to it.

“Q.‘ Sidwell stood at your side while you bid, and as soon as it was knocked off to you you went over to an office here in Lancaster? — A. Tes,sir, I sold it. I didn’t see him right there when 1 bid it in. Don’t remember whether we walked away together.

“Q. You know the reason Sidwell didn’t bid? A. They just sold Raster’s interest. I understood I wasn’t getting good title to a part.

“Q. You understood there was an '-outstanding title? A. I don’t understand.

“By Mr. Campbell: Nathan Kaster had been married and his wife had secured a divorce? Á. The way I understood it, they sold Nate Raster’s interest in that land, and that is what I bought. My daughter, Nate Raster’s former wife, wasn’t present at the sale. There was no arrangement before the sale between me and my daughter and Sidwell as to the matter of the purchase and any dower or interest she might have. Don’t remember of any talk between Sidwell and myself about my daughter’s title. She had not agreed with either of us to join in conveying the land to Sidwell, if I purchased it. .Attorney Eolston prepared the contract with Sidwell. Don’t remember anything about talking with him before the sale. Eolston was not" my lawyer, he was representing Sidwell. I don’t know what the land value really was. I was the only bidder.

“Q. At the time you bid, you didn’t know what it was worth — $5 or $50 ? A. Or a hundred. ’ ’

D. Z. Branziger testified for defendants: "Was present at the sale. Sanders and Sidwell were standing together at the time of the sale. About a week before the sale, Sidwell told me that he had been to see Sanders and had made arrangements with Sanders to buy it. He said the sheriff was selling all the right that Kaster had in his land. The land was then reasonably worth $100 per acre. It is now worth $125 per acre. Saw Sanders and Sidwell together right after the sale. They were talking about the sale of the land. The next day Sidwell told me Sanders raised $2.50 an acre over what he had agreed to. I am acquainted with the value of the land. My land is within one-fourth of a mile of it. ’ ’ Charles Smith, for defendant, corroborated Branziger as to value of land and as to Sanders and Sidwell being together at the sale.

James Ewing, for defendant, testified, that the land was worth $100 per acre at the time of sale.

Defendant, Lee Kaster, testified: That he was the son of defendant Nathan L: Kaster. At time of sale, he was in possession as tenant of his father and had been ever since. The land was then worth $100 per acre. His father and his wife were separated.

The sheriff’s deed showed that plaintiff Sanders paid $68.50 per acre for the one hundred and sixty acres at the foreclosure sale, leaving a balance due on his judgment at time of trial of $924.

As to the forty acres, the further additional testimony was given by plaintiff, Sanders. He knew nothing of any trouble except there was a mortgage on the land. He did not know Nate Kaster claimed the court had no right to render the judgment. He bought the property on his own judgment and on what Fogle said that the sale would pass good title. Never read the judgment. Had nobody examine it before he bought the land. They said the title was good and would have to give possession right hway. Witness paid- $2,000 for it, that is all he thought it was worth. He did not know when he bid that he would sell it for $77.50 per acre. Sidwell said, if witness got it, he (Sidwell) would like to have it, but the price was not stated until after witness bought it.

“Q. Wasn’t it the understanding that Sidwell wouldn’t bid on it, if you did? A. I don’t know, I don’t remember. Can’t say why Sidwell stood right by, me and didn’t bid on it. Couldn’t say it was within less than an hour after I bid on it that I sold it to Sidwell. I expect it was two hours. If I bought the.land, I was to sell it to Sidwell, if we could agree on a price. There were others that wanted to buy it. Don’t remember whether I had agreed to sell it to anyone else before the sale.”

Charles Smith, for defendant, testified: That he was one of the appraisers under the Fogle “judgment” in setting off homestead, and appraised the forty acres at $75 per acre. He thought they made a reasonable appraisement, but he always did say it was reasonably worth $100. He also testified that there was something said about a mortgage at the time of the sale, a thousand-dollar mortgage, which covered the one hundred and sixty as well as the forty acres.'

The record in the Fogle v. Nathan L. Kaster case, under the execution in which the forty acres were sold by the sheriff and purchased by the plaintiff, Sanders, was introduced in evidence. The petition was as follows :

“In the Schuyler County Circuit Court,

‘ ‘ October Term, A. D. 1917.

“State of Missouri, County of Schuyler — ss. “C. C. Fogle and E. E. Fogle, composing the firm of Fogle & Fogle, Plaintiffs, v. “N. L. Kaster, Defendant.

“Come now the plaintiffs in the above entitled cause and state that, 'at all the times hereinafter mentioned, they were and still are partners in business under the style and film name of Fogle & Fogle.

“And for their cause of action against the defendant state that, by the orders and judgments of the Probate Court of Schuyler County, Missouri, made on the 30th day of June A. D. 1913, and recorded in the probate records of said county in Volume 10, at pages 472, 473 and 474 thereof, this defendant was duly adjudged of unsound mind and incapable of managing his affairs, and said probate court, by its said orders and judgments, appointed and constituted one John Sloop as the guardian and curator of defendant, and said John Sloop thereafter duly qualified and acted as such guardian and curator until the 7th day of June A. D. 1916', as hereinafter mentioned.

“That while said John Sloop was the guardian and curator of defendant and acting as such as aforesaid, and on the 20th day of September, 1915, in an action in said probate court wherein these plaintiffs were demandants against the estate of Nathan L. Kaster (this defendant), an insane person, a judgment was by said probate court duly given and made in favor of these plaintiffs and against John Sloop, guardian and curator of Nathan L. Kaster, insane, defendant, for the sum of $570 and for the costs, to be levied of the property of the said Nathan L. Kaster insane, in the hands of said guardian and curator to be administered, and said judgment was by said probate court classified and ordered placed in the fifth class of demands; that a duly certified transcript of said judgment is herewith filed and marked ‘Exhibit A.’

“That thereafter, by the orders and judgments of said probate court made on the 5th day of April A. D. 1916, recorded in the probate records of Schuyler County, Missouri, in Volume 11, at page 487 thereof, this defendant was adjudged of sound mind and capable of managing his affairs, and said guardian and curator was ordered to make his final settlement at the next regular term of said probate court; that said guardian and curator thereafter filed his final settlement with said probate court, and said court, by its orders and judgments made on the 7th day of June A. D. 1916, recorded in the probate records of said county in Volume 11, at page 515, thereof, approved said final settlement and discharged said guardian and curator.

“That the' aforesaid judgment in favor of these plaintiffs yet remains a valid and subsisting judgment and the same is wholly due and unpaid; that by reason of the premises the defendant owes and stands indebted to the plaintiffs in the sum of five hundred and seventy dollars, with interest thereon from the 7th day of June A. D. 1916, at the rate of six per cent per annum until paid, for all of which plaintiffs pray judgment against defendant and for costs of this action.

‘ ‘ Fogle & Fogle, Plaintiffs. ’ ’

Defendant was duly served with summons, but made no appearance, and judgment w;as rendered by default on October 17, 1917, at the regular October term of said court, in favor of the plaintiffs, for $616.55. Thereafter, October 30, 1917, the execution under which plaintiff Sanders purchased the land was issued. The sheriff’s deed on this sale was regular on its face and conveyed the land to" plaintiff Sanders. On April 5, 1916, said N. L. Kaster was duly adjudged to be restored in mind.

After plaintiff’s purchase at execution sale and in , due time, said defendant Kaster sued out a writ of error in said Fogle Case to the Kansas City Court of Appeals, which reversed the judgment. [Fogle v. Kaster, 212 S. W. 565.]

The foreclosure suit was originally brought in Schuyler County by said Sanders, as plaintiff, against John Sloop, guardian and curator of N. L. Kaster, an insane person, and said N. L. Kaster, the 16th day of March, 1916. The defendants filed answer, setting up that at the time the note and deed of trust were given, Kaster was insane, and the note was without consideration. Afterwards, defendants took a change of venue to Putnam County, where plaintiff filed reply, denying matter set up in answer, and where judgment on the note sued on, and forclosing deed of trust on said one hundred and sixty acres, was rendered on November 28, 1917. Motions for new trial and in arrest were filed and consideration thereof continued until the April term, 1918. ' On December 8, 1917, after the adjournment of the regular November term, plaintiff caused a special execution to be issued directed to the Sheriff of Schuyler County, which was to him delivered on December 15,1917, and the land was sold thereunder on February 11,1918, while said motions were under' determination. Afterwards, said motions were overruled and defendant Kaster appealed .to this court, where the judgment was affirmed. [Sanders v. Kaster, 222 S. W. 133.] The sheriff’s -deed in the fore-i Insure proceedings was regular on its face, and conveyed the one hundred and sixty acres to the plaintiff Sanders.

The court found for the plaintiffs, as to the one hundred and sixty acres, and for defendants as to the forty acres. Both parties duly appealed to this court, where their appeals were consolidated.

I. First, as to the one hundred and sixty acres. The fact that the trustee was not made a party to the foreclosure proceeding, in no manner affected its validity, and could have had no ;just bearing on the salé, because, we hold, that he was neither a necessary nor proper party. We also hold, that it was defendant’s own fault that his wife was not a party defendant, in that,' if she was a proper party, defendant should have raised that question by answer or demurrer, and' failing to do so, he waived the defect, if any there was. [Sanders v. Kaster, 222 S. W. l. c. 135.] If these • facts affected the price for which the land was sold, defendants have no right to complain thereof.

Nor are we impressed with the contention that there was a conspiracy between the plaintiffs, that plaintiff Sidwell was not to bid. There is no evidence that he would have bid or intended to bid, had he made no agreement to buy from Sanders. He could not get a clear title, because of the outstanding dower in Kaster’s wife, which we have seen was Kaster’s fault for not having her impleaded with him as defendant in the case. Plaintiff Sanders testified that Sidwell did not bid, because he could only buy Kaster’s interest. For the same reason, we are not impressed with the insistence that the property sold for any inadequacy of price. Mrs. Kaster’s dower not being included in the sale, but only the interest of Kaster, $68.50 per acre, the price paid by plaintiff Sanders, was a fair price, under all the evidence, for the interest purchased by Sanders. It is far from being a price so inadequate as to warrant a court of equity in setting aside the sale.

We rule, that the sale to plaintiff Sanders, of the 160 acres was valid in all respects.

II. As to the forty acres. The plaintiff Sanders paid $50 per acre therefor. The evidence tends to show it was subject to $1,000 mortgage. This would make the price paid equivalent to $75 per acre for Kaster’s interest therein, subject to his wife’s dower. This was a fair price for the interest in the property sold.

What we have just said, with reference to the conspiracy claimed by appellant between plaintiffs, that Sidwell should refrain from bidding on the one hundred and sixty acres, also applies to the same contention as to the forty-acre tract.

III. It is earnestly contended by learned counsel for defendants, that the 'Fogle judgment under the execution on which plaintiff Sanders purchased said forty acres was absolutely void, because the petition in that case shows on its face that the circuit court had no jurisdiction, and jurisdiction of the subject-matter was exclusively vested in the probate court. The opinion of the Kansas City Court of Appeals, in that'case, was delivered by Bland, J., and after reciting the petition, was as follows (212 S. W. 565) :

“We think that the petition fails to state a cause of action. It sues upon a judgment rendered by the probate court, which is a judgment in rem against the estate (Moody v. Peyton, 135 Mo. 482, l. c. 491, 36 S. W. 621, 58 Am. St. Rep. 604), and attempts to make this judgment a basis of judgment in personam against the defendant. This cannot be done. [Johnson v. Kaster, 199 Mo. App. 501, l. c. 503, 204 S. W. 196.] An allowance in the probate court against the estate of an insane person cannot be made a personal judgment against such person when restored to sanity. [Johnson v. Kaster, supra; Brown v. Chadwick, 79 Mo. 587.] The judgment is reversed.”

As we interpret the language of the learned court, it rules that the petition stated no cause of action, because the claim sued on was not a personal judgment against the defendant Kaster, but only a judgment in rem against his estate in the hands of his former g*uardian. The decision does not,, therefore, hold that the circuit court had no jurisdiction, unless the failure of the petition to state a cause of action deprives the court of jurisdiction. But this is not the law. In Cole v. Parker-Washington Co., 276 Mo. 220, 207 S. W. 749, l. c. 766, the majority-of Court in Banc announced the rule in such cases, as follows:

“That the judgment of a court of general jurisdiction, having the parties to' the controversy before it, and having power to determine the class of cases for which relief is prayed, is not void, because of the failure of the petition to state a cause of action, and is not, for that reason, open to a collateral attack, is a proposition established in this State, and sustained by the overwhelming weight of authority elsewhere.” Citing in support of its conclusion: Dollarhide v. Parks, 92 Mo. l. c. 188; Tube Works v. Ice Machine Co., 201 Mo. 58; Rivard v. Railroad, 257 Mo. 168; Jarrell v. Laurel Coal & Land Co., 75 W. Va. 752, fully annotated in L. R. A. 1916E, pp. 312, 316. ‘The court also quoted the following from Winningham v. Trueblood, 149 Mo. l. c. 580, 581: “Whether a complaint does or does, not state a cause of action is, as far as concerns a question of jurisdiction, of no importance; for if the complaint states a case belonging to a general class over which the authority of the court extends, there is jurisdiction, and the court has power to decide whether the pleading is good or bad (citing cases).' In all such cases, collateral attack on the judgment rendered, is altogether inadmissible.”

So that, we hold, that the Kansas City Court of Apneals in the Fogle Case did not hold the circuit court had no jurisdiction and its judgment was void for that reason, but simply that the petition in that case did not state a cause of action for a personal judgment against the defendant Kaster.

TV. But it is earnestly contended that one of the cases cited by the learned Court of Anpeals in the Fogle Case, namely, Johnson v. Kaster. 199 Mo. App. 501, in which the petition was the same as in the Fo^ase’ does h°td that, in such cases, the circuit court had no jurisdiction, because it was, in effect, an attempt to enforce the judgment of the probate court by execution from the circuit court, which would, in effect, remove the administration of the insane person’s estate from the probate court, and that, therefore, the circuit court had no jurisdiction of the subject-matter. We cannot agree to this conclusion reached by the court in that case. The probate court has not exclusive jurisdiction in proceedings against insane persons. Section 514, Revised Statutes 1909, is as follows:

“In all actions commenced against such insane person, the process shall be served on his guardian; and on judgment against such insane person, or his guardian, as such, the execution shall be against his property only. ”

In Frost v. Redford, 127 Mo. l. c. 498, it was held that under Section 5544, Revised Statutes 1889, which is in the same lánguage as Section 514, Revised Statutes 1909, just quoted, an insane person; under guardianship, should be sued in the circuit court. The court said, at page 498:

“lie continues to be the owner of the property and may sue by his guardian, be sued and defend by his guardian (and) an execution may issue against his property. [R. S. 1889, sec. 5544.] His property rights and rights under the exemption laws were not changed by reason of his being declared insane and placed under guardianship. ’ ’

Since that case Avas determined, Section 499, ReAÚsed Statutes 1909, Avas enacted, which requires the property of the insane, ward, if not sufficient to pay all his debts in full, to be prorated among his creditor's. But this in no way restricts the jurisdiction of the circuit court to entertain a suit against him. After an insane person is adjudged restored to his right mind, Section 520, Revised Statutes 1909, provides, that: “He shall be discharged from care and custody and the guardian shall immediately settle his accounts and restore to such person all thinas remaining in his hands belonging or appertaining to him.”

So that, when the Fogle suit was brought, as shown by the petition, Kaster had been adjudged restored to his right mind, and the administration of his estate in the probate court was ended and the jurisdiction of that court over him and his estate had terminated. Consequently, he was subject to suit the same as any other person on any valid claims against him.

The case of St. Louis v. Hollrah, 175 Mo. 79, was a suit to recover a personal judgment against an insane person for necessaries, while such person was under guardianship. It was brought in the circuit court. The defense was that the petition stated no cause of action, and the circuit court had no jurisdiction. This court disallowed both contentions. After setting out in its opinion the statutes relating to insane persons and their estates, -which statutes were the same 'as those applicable in this case, the court said (l. c. 84, 85):

“It is well settled law, ‘That, if a statute gives a remedy in the affirmative, without containing any express or implied negative, for a matter which was actionable at common law, this does not take away the common law remedy, but the party may. still sue at common law, as well as upon the statute. In such cases the statute remedy will be regarded as merely cumulative. But, where a new right or the means of acquiring it are given, and an adequate remedy for violating it is given in the same statute, then the injured parties are confined to the statutory remedy.’ [Citing many cases.]

“In order that this act should have the effect contended for by counsel for defendant, of ousting the jurisdiction of the circuit court, and vesting the same in the probate court, it must afford not only a remedy but' an adequate remedy, and that remedy must be exclusive. ■ It fills none of these requirements. The probate court is a court of limited jurisdiction, possesses only such power as is conferred upon it by statute, and can exercise its jurisdiction only in the mhnner prescribed by statute. This act does not confer upon the probate court power to hear, determine and afford adequate relief to a suitor in an action in that court against an insane person. Nor does it provide any method of procedure for that purpose. In fact, instead of providing an exclusive remedy in that court, it provides none at all for such suitor. It is simply a limitation upon his demand, and that limitation does not apply to cases like the one in hand, but is confined to demands against an insane person accruing before the granting of letters of guardianship. There is nothing in this contention.”

From the above language, it is clear, it seems to us, that the circuit court has jurisdiction in suits on all claims against insane persons, whether they arose before or during the guardianship, and that the statutory remedy for proving up claims in the probate court against his estate in the guardianship proceedings is not exclusive and does not exist at all after the insane person is adjudged restored to his right mind, his'property returned to him, and the guardian discharged, as stated in the petition in the case of Fogle v. Kaster, supra. The petition in that case, it is true, was not based on the original claim, but on the claim as allowed in the probate court, but it alleged that said allowance constituted an indebtedness of the defendant, for which the plaintiffs prayed judgment as in ordinary cases. Whether the facts stated in said petition constituted a cause of action entitling the plaintiffs to a personal judgment as prayed for, was a question for the circuit court to decide. It had jurisdiction to determine that question. Whether it determined it right or wrong, is not material. If the facts stated did not constitute a personal liability on the part of defendant, the petition, of course, failed to state a cause of action, but this in no way deprived the court of the power, — the jurisdiction — to determine that question. The circuit court had jurisdiction in all actions for personal judgments against formerly insane persons, who had been discharged from guardianship, and was the only court which did have ju-' risdiction in such cases. Consequently, the judgment in the Fogle case against the defendant Kaster was not an absolute nullity for want of jurisdiction, but at most simply an erroneous judgment.

We, therefore, disapprove what is said in Johnson v. Kaster, 199 Mo. App., supra, as to the circuit court having no jurisdiction in such cases.

Y. The judgment in the case of Fogle v. Kaster, not being .void, but simply erroneous, the title of the plaintiff Sanders to the forty acres was good. He was a stranger, and not a party, to that proceeding. There was no supersedeas staying the execution, and, therefore, the fact that the judgment was subsequently reversed by the Kansas City Court of Appeals in no way impaired his title. [Shields v. Powers, 29 Mo. 315; Vogler v. Montgomery, 54 Mo. 577; Schmidt v. Niemeyer, 100 Mo. 207; Wood v. Ogden, 124 Mo. App. 42.]

We hold, therefore, that the plaintiffs’ title to both the hundred and sixty acres and the forty acres is valid, and that they are the owners thereof, as described in the petition, and that the defendants have no interest therein. Consequently, the judgment below for the plaintiffs as to the one hundred and sixty acres is affirmed, and the judgment for the defendants as to the forty acres is reversed and the case remanded with directions to the circuit court to set aside its judgment as to said forty acres, and enter judgment that plaintiffs are the owners of said forty acres, and entitled to the possession thereof, and the defendants have no rigdit nor title thereto, and that plaintiffs recover the possession of said forty acres from defendants, together with monthly rents, at the rate of ten dollars per month, from the 11th day of February, 1918, until tbe possession thereof is delivered to them.

Brown and Ragland, GG., not sitting.

PER CURIAM: — Tbe foregoing opinion by Small, C., is adopted as tbe opinion of 'tbe court.

All of tbe judges concur.


source: Caselaw Access Project

author: GEAYES, J.

license: Public Domain

text:
    IRENE MARIE HILL, Pro Ami, v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division One,
    July 11, 1921.
    1. NEGLIGENCE: Injury in Kansas: No Pleading of Statutes. In an action for damages for personal injuries negligently inflicted in-Kansas, in which plaintiff pleads no statute or ordinance but does state a cause of action under the general law of negligence, and wherein defendant invoked no statute or other law of Kansas, the law of Missouri applies, and the case is properly tried under Missouri rules of negligence.
    2. -: Pedestrian on Track: Humanitarian Rule. A girl five years of age went with her brother to a fountain near the intersection of streets and after getting water they started to retrace their steps northward across railway tracks, and upon reaching the tracks upon which east-bound cars ran the little girl dropped a penny and was looking for it at the time an east-bound car approached, and the brother, having reached the track on which west-bound cars ran and hearing an exclamation from his sister, turned and saw her looking for the penny and shouted to her, but she became confused and did not get off the track; and there was evidence that the car was then fifty feet away, that it could have been stopped'in much less than fifty feet, that the view was clear for at least seventy-five feet, that the motorman was talking to some one and not looking ahead, and that no gong was sounded or other warning given. .Held, that the evidence was sufficient to take the case to the jury under the humanitarian rule, and being so submitted it became their province to determine the credibility of the witnesses who testified to the foregoing facts, i
    3. -: Humanitarian Rule: Concurrent Acts: Pleading and Instruction. The facts constituting negligence under the humanitarian rule may be pleaded with other negligent acts in the same count of the petition, and recovery be had upon the negligence covered by the humanitarian rule, and the instruction may omit all other acts of negligence. Plaintiff is not required to prove all acts of negligence pleaded, if those proven authorize a recovery under the humanitarian rule and the instruction properly submits them.
    4. -: Pedestrian on Track: Oblivious to Peril. Under the humanitarian rule, if the operator of a street car sees a person in peril, and oblivious thereto, he is required to use any and all mean's at hand to avert injury to such person. If he can stop the car, he must stop;' if unable to stop, and a slackening of the speed will avert the injury, he must slacken it; if a warning will avert the injury, ordinary care requires him to give warning.
    5. WITNESS: Expert: Qualification: Waiver. Where an objection that a witness had not shown himself qualified to testify as to the speed of a car was sustained, and thereupon the witness was further qualified and then proceeded without further objection to. give his judgment of the speed, opposite counsel are in no position to insist he was improperly permitted to testify.
    6. -: Written Statement: Denial. A witness' for defendant, who at a former trial was a witness for plaintiff, in a way denied a written statement and his signature thereto. Without objection he signed his name upon a separate piece of paper, and it -was admitted for comparison with his -purported signature on the statement. Another witness testified that prior to the former trial the witness had admitted that the written statement and signature were his. Huid, there was no error in the admission in evidence Qf the written statement.
    7. TRIAL: Misconduct of Court. In the face of previous irritating conduct of counsel, the trial court is not to be condemned for attempting, by asking questions of the jury, to get at the real issues and facts of the case. And where a witness had testified that the little girl hesitated when she got upon the street railway track, the court, in assuming in his next inquiry, over objection, that she had stopped, especially where the witness subsequently stated she was standing still, was not guilty of misconduct.
    8. MENTAL ANGUISH: Physical Deformity. Where the little girl’s left arm was cut off just below, the elbow, her left foot was off back to. the heel, the big toe and the one next to it of the right foot were off, and the third toe was broken and bent out and under the foot in a hook shape, there was sufficient evidence for an instruction telling the jury to allow her damages for any mental anguish she had suffered or would hereafter suffer; for these injuries were permanent, and mental anguish may he the outgrowth of them as the years come and go.
    9. LEGAL AGE: Subsequent Wages: Law of Forum. Where the little girl was injured in Kansas and sues for common-law damages in Missouri, the law of the forum governs, and therefore an instruction authorizing the jury to allow her to recover for impaired ability to earn money “after she becoipes of legal age,"’ without proving what is the legal age in Kansas, is not erroneous.
    Appeal from Jackson Circuit Court. — Hon. Harris Robinson, Judge.
    Affirmed.

      Charles N. Sadler and E. E. Ball for appellant.
    (1) The court erred in overruling the demurrer interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence, (a) The petition fails , to state facts sufficient to constitute a cause of action against defendant. 1st. This accident occurred in Kansas, therefore, the laws of Kansas govern. Newlin v. Railroad, 222 Mo. 391; Chandler v. Railroad, 127 Mo. App. 34; Rahn v. Railroad, 129 Mo. App. 686. 2nd. Common law not presumed to exist in Kansas. Mathieson v. Railroad, 219 Mo. 542; First Nat. Bank v. Ins. Co., 222 S. W. 837. (b) The evidence did not justify a submission of this case to the jury under the allegations of the petition. 1st. Plaintiff must recover, if at all, upon the particular cause of action pleaded as pleaded. Beave v. Transit Co., 212 Mo. 352; Detrich v. Railroad, 143 Mo. App. 179; Simms v. Dunham, 203 S. W. 652; Boles v. Dunham, 203 S. W. 408; Murdock v. Dunham, 206 S. W. 915; Kirn v. Harvev, 208 S. W. 479; State ex rel. v. Ellison, 270 Mo. 653; Shafer v. Dunham, 183 S. W. 670: Hall v. Coal Co., 260 Mo. 351; Arata v. Ry. Co., 167 Mo. App. 90; Israel v. United Rvs. Co., 172 Mo. App. 660; Bobbitt v. Rys. Co., 169 Mo. App. 428. 2nd. Where petition charges two or more concurrent negligent acts combined caused the injury all must be proven to entitle plaintiff to recover. R. S. 1909, sec. 3140; Terry v. Ry. Co,. 89 Mo. 587; Turner v. Ry. Co., 78 Mo. 580; Van Note v. Ry. Co., 70 Mo. 642; Downing v. Ry. Co., 70 Mo. App. 661; Kirn v. Harvey, 208 S. W. 479; Worms - dorf v. Ry. Co., 75 Mich. 474; Western Ry. Co. v. McPherson, 146 Ala. 427; Flynn v. Staples, 34 App. D. C. 92, 27 L. R. A. (N'. S.) 792. 3rd. Should not have been submitted on issue of failure to warn. Peterson v. Rys. Co., 192 S. W. 940; McManamee v. Railroad, 135 Mo. 449; McNeil v. Ry. Co., 182 S. W. 762; Pope v. Ry. Co.. 242 Mo. 238; Green v. Ry. Co., 192 Mo, 131. 4th-Should not have been submitted on humanitarian theory. Markowitz v. Railroad, ,186 Mo. 351; Grout v. Ry. Co., 125 Mo. App. 552; Roenfelt v. Ry. Co., 180 Mo. 566; Boyd v. Ry. Co., 105 Mo. 382; Haffey v. Ry. Co., 135 S. W. 937; Mockowick v. Ry. Co., 196 Mo. 570; Barnard v. Ry. Co., 137 Mo. App. 684; Van Bach v. Ry. Co., 171 Mo 347; Gessner v. Ry. Co., 137 Mo. App. 47; Banks v. Ry. Co., 217 S. W. 488; Oglesby v. Ry. Co., 177 Mo. 272. (2) The court erred in giving instructions asked by plaintiff. Authorities under Point one. (3) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff, (a) Broadens issues made by pleadings. Shafer v.-Dunham, 183 S. W. 670; Hall v. Coal & Coke Co., 260 Mo. 351; Bergfeld v. Dunham, 202 S. W. 253; Davidson v. Transit Co., 211 Mo. 363;'Roscoe v. Railroad, 202 Mo. 576. (b) Invades province of jury. Taylor v. Ry. Co., 185 Mo. 256; Glas: gow v. Ry. Co., 191 Mo. 364; Smart v. Kansas City, 208 Mo. 199; 203; Castanie v. Ry. Co., 249 Mo. 195. (4) The court erred in refusing to admit competent, relevant and material evidence offered bv defendant. Authorities under last point. (5) The court erred in making improper remarks during trial; in preventing defendant from properly conducting its defensej and in improperly examining -fitnesses. McElwain v. Dunham, 221 Mo. App. 773; Landers v. Railroad, 134 Mo. App. 80; Dreyfus v. Railroad, 124 Mo. App. 592; Jackmann v. Railroad, 187 S. W. 787; Levels v. Railroad, 196 Mo. 619; Rose v. Kansas City, 125 Mo. App. 235; Buck v. Trust Co., 185 S. W. 213; Hutchinson v. Gate Co., 152 S. W. 65; 40 Cyc. 2439, 2440; Knox v. Fuller, 23 Wash. 34; 38 Cyc. 1316; Berwind Co. v. Firment, 170 Fed. 154. (6) The court erred in refusing to sustain the motion for new trial on the gróund that it is against the weight of the evidence. Lehnick v. Ry. Co., 118 Mo. App. 611; Morris v. Kansas City, 117 Mo. App. 303; Baughman v. Fulton, 139 Mo. 558; Bohle v. Merc. Co., 144 Mo. App. 441; Northrop v. Diggs, 115 Mo. App. 93; Ridge v. Johnson, 129 Mo. App. 546; Reid v. Insurance Co., 50 Mo. 429; Powell v. Ry. Co., 59 Mo. App. 340; Kreitzel v. Stevens, 155 Mo. 285; Lawson v. Mills, 139 Mo. 172; Gould v. St. John, 207 Mo. 619.

      Atwood, Wicker shmn, Hill <& Popham for respondent.
    (1) The law of Missouri and not the law of Kansas governs. Plaintiff’s petition stated a common-law cause of action. Defendant did not plead the laws of Kansas, hence the common law as applied by the Missouri courts governs. Lyons v. Railroad, 253 Mo. 151; Thompson v. Railroad, 243 Mo. 349; Biggie v. Railroad, 159 Mo. App. 351. (2) The acts of negligence pleaded in plaintiff’s petition were stated disjunctively. Plaintiff could submit any or all acts of negligence justified by the evidence, It is not the law, as stated by appellant, that all or none of the alleged negligent acts must be submited to the jury. Meeker v. E. L. & P. Co., 216 S’. W. 931; Hanson v. Traction Co., 226 S. W. 1. (3) There was overAvhelming evidence that no warning was given of the approach of the car. Due care under the circumstances required the motorman to sound warning. Petition charged failure to warn as one of the grounds of negligence and plaintiff’s Instruction No. 1 properly submitted this issue to the jury. Ellis v. Met. St. Ry., 234 Mo. 683; Cytron v. Transit Co., 205 Mo. 693; Muller v. Harvey, 204 S. W. 929; Argeropoulos v. K. C. Rys. Co., 212 S. W. 375. (4) The evidence shows conclusively that this child — hardly five years of age — was on the east-bound track in deadly peril when the street car was at or beyond the spur or cross over switch to the west, a distance at least of from fifty torseventy-five feet away. The testimony showed the car running at the speed stated by plaintiff’s witnesses and defendant’s conductor, could have been stopped within fifteen feet. The motorman on the west-bound car, defendant’s witness, testified car could be stopped from fifteen to twenty-five feet. This made out a clear case for the jury. Ellis v. Met. St. Ry., 234 Mo. 656; Holmes v. Railroad, 207 Mo. 163; Livingston v.' Railroad, 170 Mo. 471; Turnbow v. Dun-ham, 197 S. W. 107; Simon v. Railroad, 231 Mo. 78. (5) Plaintiff was injured in a thickly settled part of Kansas City, Kansas. A drinking fountain was located opposite the point of accident which was much frequented by children. It was the duty of defendant’s motorman not only to keep a sharp lookout ahead for children on the street, but to take note of the practice of children to be about the drinking fountain and of their crossing the street at this point and to govern his conduct accordingly. Cases under Points 3 and 4. (6) The point made by appellant that the court was guilty of improper conduct was utterly without foundation. The records show the court’s attitude to have been impartial and fair, and that the attitude of counsel for defendant towards the trial judge throughout the trial was insolent and disrespectful. The small award of damages of which appellant makes here no complaint, shows that the final result was in no wise affected by any extraneous circumstances. Buck v. Buck, 267 Mo. 662. (7) Point No. 6 of appellant is wholly without merit because the greater weight of the evidence was in favor of plaintiff and against the defendant. But if it had been otherwise, this court will not weigh and settle conflicts in evidence. Orblitt v. Bergfold, 191 S. W. 999.
   GEAYES, J.

Irene Marie Hill, a negro girl some five years old at the time of the incident which occasioned her injury, sues through her next friend, for damages alleged to have been occasioned by the negligence of defendant’s predecessor in title to the street railway property now operated by defendant. Defendant was the purchaser at a receivership and foreclosure sale of the property. The injury occurred, whilst the railway property was in the hands of receivers, but no point is made as to the liability of this defendant, if its predecessor in title, or the receivers, were liable. So the case proceeded as if the instant defendant had been the owner and operator of the street railway property at ■ the time of the accident. The accident occurred June 16, 1915, at 7:30 p. m. in the State of Kansas, near the intersection of Quindaro Boulevard and 7th Street, in Kansas City, Kansas. There was a double-track street railway in Quindaro Boulevard. The negligence charged is thus stated in the petition:

“Plaintiff states that the said receivers and their agents and servants in charge of said car were careless and negligent in that they failed to give plaintiff, any warning signals of the approach of said car to her and to said intersection, and in that they were negligently operating said car without keeping proper or reasonably sufficient lookout ahead, and without having or keeping same under proper and reasonable control. Plaintiff further says that those in charge of said car were further negligent in that they saw or by the exercise of ordinary care could have seen plaintiff upon said track or so near the same and in such position as that she was in a position of danger and peril from the approach of said car, in time, by the exercise of ordinary care, under the conditions then existing, and with the use of the appliances at hand, to have stopped said car, slackened the speed thereof, pr have -warned plaintiff of the approach thereof, and thereby have avoided injuring her, all of which they negligently and carelessly failed to do.

“Plaintiff further states that as a direct and proximate result of the negligent and careless acts and omissions of those in charge of said car, as above described, all of said acts and omissions acting severally and concurrently with each other, she was struck, run over and injured by said car, at said time and place, injuring her in the following manner and particulars, to-wit. ’

The answer was a .simple general denial. Plaintiff had a verdict for $10,000, and from a judgment entered thereon the defendant has appealed. There are some five or six assignments of error, which, with the relevant facts, will be noted in the course of the opinion.

I. It is first urged that the demurrer to the evidence should have been sustained. This insistence has several sub-divisions in the brief, stated thus:

“(a) The petition fails to state facts sufficient to constitute a cause of action against defendant.

“1. This accident occurred in Kansas, therefore the laws of Kansas govern.

“(b) The evidence did not justify a submission of this case to the jury under the allegations of the petition. ’ ’ ,

When boiled down there are but two real questions raised in the foregoing, i. e.: (1) the accident having occurred in Kansas, it is governed by the Kansas law, and being so governed, we cannot presume that the common law exists in Kansas, and (2) that the evidence failed to show liability.

As to the first proposition, supra, it must be conceded that the action is founded upon common-law negligence, as distinguished from statutory or ordinance negligence. The petition pleads no statute or or(&liailce- ^ states a cause of action under our general law of negligence. The defendant invoked no law of Kansas, statutory or otherwise. In such situation the case was properly tried under our rules of negligence. [Lyons v. Railroad, 253 Mo. l. c. 150-151.] In the Lyons case we discussed both the Mathieson case, and the Newlin case, relied upon by the appellant, in its brief. We can add nothing to what was said in Lyons’s case. The action there was bottomed upon common negligence, as in this case. The answer there was a general denial, as in the instant case. We then said: “In such case, unless the defendant properly invokes the laws of the sister state, the law of Missouri is to be applied. ’ ’ So say we in the case before us. As to whether the evidence on the part of the plaintiff made a case under our law, we take next.

II. That there was evidence to take this case to the jury under the humanitarian rule we have no doubt. The main instruction for the plaintiff, whilst verbose and lengthy, places her case upon the 'humanitarian rule. The little girl and her brother had gone to a water fountain near the street intersection. After getting water at this fountain they started to retrace their steps toward the north or northeast across the double railways tracks. Upon reaching the tracks upon which east-bound cars run, the plaintiff dropped a penny, and was looking for it at the time the east-bound car approached. The brother was ahead, and jiad reached the track upon which west-bound cars ran, when hearing an exclamation from the sister he turned and saw her looking for the penny, and “hollowed” at her, but she became confused and did not get off the track. He says the car was fifty feet away from her when he turned around. He further says that the motorman was talking to some person and not looking ahead. Other witnesses say that the little girl was on the track, in clear view of the motorman for at least seventy-five feet. They likewise corroborated the brother as to the motorman being engaged in conversation. There was ample evidence that at the rate of speed shown, the car could have been stopped in very much less than fifty feet, one witness placing it as low as fifteen feet. So also there is evidence that no gong was sounded or other notice given to the child. The facts sufficed to take the case to the jury, and it then became the province of the jury to determine the credibility of the witnesses detailing the foregoing facts. The demurrer was properly overruled upon both the questions urged by appellant.

III. The further point made is thus couched in the brief: “Where petition charges two or more eon-current negligent acts combined caused the injury all must be proven to entitle plaintiff to recover.”

The point is not clear to us in view of the record. The'petition, after stating some other acts of negligence, thus pleads the humanitarian rule:

“Plaintiff stales that the said receivers and their agents and servants in charge of said car were careless and negligent in that they failed to give plaintiff any warning signals of the approach of said car to her and to said intersection, and in that they were negligently operating said car without keeping proper or reasonably sufficient lookout ahead, and without having or keeping same under proper and reasonable control. Plaintiff further says that those in charge of said car were further negligent in that they saw or by tlie exercise of ordinary care could have seen plaintiff upon said track or so near the same and in such position as that she was .in a position of danger and peril from the approach of said car, in time, by the-exercise of ordinary care, under the con-, ditions then existing, and with the use of appliances at hand, to have stopped said car, slackened the speed thereof, or’have warned plaintiff of the approach thereof, and thereby have avoided injuring her, all of which they negligently and carelessly failed to do.

“Plaintiff further states that as a direct and proximate result of the negligent and careless acts and omissions of those in charge of said car, as above described, all of said acts and omissions acting severally and concurrently with each other, she was struck, run over and injured by said car, at said time and place, injuring her in the following manner and particulars, to-wit:”

We have so often ruled that the negligence covered by the humanitarian rule may be pleaded with other acts of negligence in the single count of a petition, and that a plaintiff may abandon all other alleged negligence, and recover upon, the negligence which is covered by the humanitarian rule, that citation of authorities would be superfluous. In this case the plaintiff chose to submit her case upon the humanitarian rule, although the instruction is cumbersome. The allegations in the petition as to stopping the car, slackening the speed of the car and giving warning are all in the disjunctive, and the instruction so placed them, but the instruction leaves out of consideration the slackening of the speed of the car. The concluding portion of the instructions reads:

“And that the operator of said car saw or by the exercise of ordinary care could have seen plaintiff in such position of danger and peril, if any, and could by the exercise of ordinary care have-known all of the above facts, if you so find, such to be the facts, in time thereafter by the exercise of ordinary care and by the use of the means at hand and with safety to said car and those aboard same, to have stopped said car or warned plaintiff of the approach thereof, if you so find, and could thereby have prevented injuring her, if you so find, and that the operator thereof failed to exercise ordinary care to stop said car or give reasonable warning of the approach thereof, if. you so find, after he knew (if you so find he did) or by the exercise of ordinary care could have known (if you so find he could) that plaintiff was in such danger and peril, if any, as above set out, and that by such failure, if any, such operator was thereby negligent, if you so find, and that as a direct result of such negligence, if any, said car struck plaintiff and she was thereby injured, if you so find, then your verdict must be for plaintiff.”

The previous portion of the instruction had required the jury to find that plaintiff .was upon the track and was oblivious to her danger, and had defined the duty of defendant under such circumstances. Under these pleadings (so far as the humanitarian rule is concerned) the instruction did not have to require the jury to find all three of the things specified in the portion of the petition quoted, supra. The instruction left out the matter of slackening speed. It might have included it, because there was evidence tending to show no slackening of speed until the child was struck, but there was no error in leaving that matter out. The instruction might have left out both the matters of slackening speed and failure to stop, and submitted on the single matter of failure to warn. In Hinzeman v. Railroad, 182 Mo. l. c. 623, Valliant, J., said: “If the engineer saw the man in a position of danger, apparently inattentive to the approaching, train, and if, with the means at hand, by the exercise of ordinary care, he could have given him timely warning, yet neglected to do so, then the case falls within the exception to the rule that a plaintiff cannot recover if his own negligence has contributed to his injury.” See also Cytron v. Transit Co., 205 Mo. l. c. 719, and cases therein cited, including the Hinzeman case; Meeker v. Union Electric Light & Power Co., 279 Mo. 574, 216 S. W. 931; State ex rel. v. Ellison, 223 S. W. l. c. 673.

Under the humanitarian rule, if the operator of a car sees one in peril, and oblivious thereof, then he is required to use any and all means at his hand to avert the injury of such person. If he can stop his car, he must stop. If the slackening of speed, although unable to stop, will avert the injury, he 'must do that. If a warning will avert the injury ordinary care requires that of such operator. So in this case under the pleadings, supra, the cause was properly submitted to the jury.

IV. There are several objections made as to the admission of incompetent evidence. Generally the objections now urged are not of weight. It is urged that witness Wren was improperly permitted to testify as to the speed of the car. Objection was made and the court sustained ,the objection on the ground that the witness had not shown himself qualified to speak upon that question. Thereupon counsel for plaintiff, with a question or two from the court, proceeded to qualify the witness, and the witness then gave his judgment of the speed without further objection by counsel for the defendant. Counsel are in no position to urge this question.

Much is said about the court in what occurred in the following testimony from witness Sturges: “Court: State what you saw? A. The little girl started across the track and when she got on the track she became confused and the car struck her and it run over her.

Court : Became confused at what, just strike that out, and state what she did. A. When she got on the track (interrupted) —

“Q. When she got on the track, did she go across or stop? A. She did not have time before the car struck her. '

“Mr. Hardin: I move the answer of the witness be stricken out as a conclusion.

“Court: The objections are sustained.

“Court: Did she keep going across? A. She became confused, apparently she has lost her head.

“Q. What did she do? A. She hesitated.

“Q. How long did she hesitate? A. Well, I could not say as to that.

“Q. Did she stop? A. Yes, sir, she hesitated on the track.

‘ ‘ Court : What way did she go as she was walking across the track? A. Crossed from the south to the north.

“Q. She was going north? A.' Yes, sir.

“Court: When she got on the track she stopped? A. Yés, sir.

“Mr. Hardin: I object to that, he did not say she stopped, he said she hesitated.

£ ‘ Court : I will overrule it; go , ahead.

“To which ruling of the court the defendant by its counsel then and there duly excepted.

“Mr. Hardin: I move that all be stricken out.

fl Court : The motion is overruled.

“To which ruling of the court the defendant by its counsel then and there duly excepted.

“Court: Which way was she facing when she

stopped?

“Mr. Hardin: I objected to that as assuming she stopped, and not proper examination.

“Court: Same ruling; objections are overruled.

“To which ruling of the court the defendant by its counsel then and there duly excepted.

“A. I could not say as to which way the little girl was facing when she stopped.

“Court: She had been going north? A. Yes, sir.

“Court: Did she turn or make any movement? A. I do not remember as to that.

“Court: Was she standing still or moving when the car struck her; did you see the car strike her? A. No, sir, I was back a little too far for that.

“Court: The front end? A. Yes, sir.

“Court: How far did you see her ahead of the ear? A. When I first noticed the little girl?

“Court: No, the last distance you could see her? A. Well, I should judge the little girl was ten or fifteen feet in front of the car.

“Court: When your view was shut off? A. Yes,sir.

£ £ Court : At that time was she standing still or walking? A. I think she was standing still.

“Court: You don’t know which way she was looking, you do not remember? A. No, sir, I do not remember.”

When all this evidence is read, it is clear that the witness meant in the first instance to say that the little girl stopped upon the track. The question was, “Did she stop?” The answer was, “Yes, sir, she hesitated on the track.” Prom that the court took it that the witness meant that she stopped (a least for a short time) on the tracks, and the subsequent testimony of the witness shows this to he a fact. For later he was asked whether she was standing: still or walking, and the witness said: “I think she was standing still.” When the whole testimony is examined we can see no error in the action of the court.

Complaint is made of the introduction of a written statement made by one G. B. Mitchell, who was at a former trial a witness for plaintiff, but at this time a witness for defendant. It was shown that Mitchell said signature and statement were his, but he in a way denied the statement and signature at the trial. Without objection the witness signed his name on a paper, and the two were admitted for comparison by the jury. The statement tends to contradict Mitchell’s testimony. One witness testified that prior to the former trial Mitchell had admitted that the written statement and signature were his, and from it all we must rule that there was no error in the admission of the document.

Other objections as to the testimony do not merit notice, and we pass to other questions.

Y. Misconduct upon the part of the trial court is charged as error. This misconduct was in the manner of the court examining witnesses. In a previous paragraph, in. discussing the admission of evidence, we have sef forth the worst aspect of the court’s conduct. The previous irritating conduct of' the then trial counsel might be also set out with justification, but we shall not so do. Counsel briefing the case here' did not .'appear below. Suffice it to say that it was sufficient to irritate a court, who was trying to get at the real issues and the facts therein. We do not think the action of the court sufficient for a reversal of the judgment. Nor do we think there was harmful error in refusing to admit some evidence offered by defendant.

Further, this court will not disturb a vei diet simply because it is against the weight of the evidence. That is for the trial court. If there is substantial evidence to support the verdict (as here) we will not review the evidence to determine the weight, or attempt to interfere with the province of the trial court in such matters. The defendant urges that we reverse the judgment, because against the weight of the evidence. This, like its contention of the refusal to admit proper evidence, must be overruled. No question is made in the assignment of error as to the size of the verdict, so that the j- 'opriety of the instructions given is all that there is lefl to this appeal.

There are so many sub-divisions of contentions in the voluminous brief, that we are forced to treat several of them in one paragraph — a bad practice, we admit.

VI. In the assignment of errors the defendant complains of instructions A and B given for plaintiff. Instruction A is the instruction on the humanitarian rule. We have, in connection with other matters, ^ ou^. ma¿erial parts of this instruction, and we find no error in it. Instruction B is one upon the measure of damages. The instruction is a usual one in this class of eases, and the criticism thereof is super-critical. The following clause therein .is criticised:

“Any mental anguish, if any, which the jury finds and believes from the evidence she has suffered and such, if any, as the jury find and believe from the evidence she will with reasonable certainty hereafter suffer as a direct result of such injuries.” It is urged that there is no evidence that the little girl suffered or will suffer any mental anguish, as distinguished from bodily pain. The fearful injuries to the child were fully described to the jury. The left arm was off just below the elbow. The left foot was off back to the heel. The big toe and the next one to it, of the right foot, were off, and the third toe was broken and bent out and under the foot in hook shape. This was the physical condition, which she must carry through life. Mental anguish is distinguishable from mere pain, and may be the outgrowth of just such a condition as we have described. As the years pass the condition for its production remains. We-have omitted to state the nervousness shown to have been, and at the trial being, suffered by plaintiff. ■ . ji. • * j

Next it is said that the instruction is erroneous, because it authorized the jury to allow her to recover for impaired ability to earn money “after she became of legal age.” Of this it is said that this court will not presume that a Missouri jury would know the legal age of a girl in Kansas. The presumption is indulged that the law of the forum is the same as that of Kansas. We touched upon this question in the first portion of this opinion. We do not deem the instruction improper. The judgment is affirmed.

All concur.


author: JAMES T. BLAIR, J.

text:
    NETTIE L. ELAM, Appellant, v. EDITH PHARISS et al.
    Division One,
    July 11, 1921.
    1. WILL CONTEST: Substituted Pages: Finding of Jury Conclusive. After the will was written it was submited to the testratrix, who said it was what she wanted. Two neighbor women were called in and testatrix showed them the instrument, told them it was her will, expressed satisfaction with it and asked them to witness it, and this they ' did. On cross-examination of these witnesses it was developed that they were unable to identify positively sheets one and two of the instrument, and were able so to identify only sheet three on which their signatures appeared; but the draftsman testified he was present when the will was signed and that it was then in the exact condition in which it was when put in evidence at the trial, and there was no evidence of fraud, but there was ample evidence, direct and otherwise, that the instrument was her geuine will. Held, that there was no ground for so much as a suspicion that the will signed by testatrix was not the same document put in evidence at the trial, but the question being nevertheless submitted to the jury the finding sustaining the will is conclusive on appeal.
    2, -: Mistake: Legal Advice As to Husband’s Curtesy. Testatrix gave written directions for the contents of her will, and after it was writen and submitted to her she caused it to be rewritten in order to correct a minor error. -Being re-written and submitted to her, she read it and said it contained the exact provisions she desired to be incorporated in it, and it was then signed and witnessed, and there is no real contention that she did not know its contents. There was no mental, physical or educational impediment to her understanding it, and there was no evidence of fraud, coercion or undue influence. Giving the fee in remainder to two children, it devised to her husband a life estate in her real estate, in lieu of all his “other rights, interests or claims’’ in her estate, and provided that out of the income of the property he should use $150 a year, until $1000 should be so used, to purchase a home for another child, the contestant. The draftsman testified that the matter of the husband’s rights were discussed, and that he advised her.that a surviving husband was entitled to a life estate in one-half of his wife’s property. Held, first, there being no evidence to show how she held the property devised and it being the law that property may be so conveyed that the husband’s curtesy is excluded and the wife’s estate one of which she can dispose by will, the instrument cannot be held not to be her will on the ground that her husband was entitled by the curtesy to a life estate in her lands, and that the attempt to impose a charge upon it in favor of contestant was therefore unavailing, and testatrix received and acted upon unsound advice concerning her husband’s marital rights in her lands, for in order to so hold it would be necessary to assume that her title was so taken that his curtesy was not excluded; and, second, even though the assumption were permissible, the mistake was not such as would authorize a setting aside of the will.
    3. -: Mistake As to Legal Effect of Provisions. A mistake of law in the mind of the testator, who is of sound mind and free from undue influence, or a mistake as to the legal effect of provisions contained in the will, will not invalidate the will. Where testatrix was advised by an attorney that her surviving husband •would have a curtesy equal to a life estate in one-half of her property, and, in lieu of all his “other rights, interests and claims,” she devised to -him a life estate charged with the obligation that he should pay to one of her daughters one thousand dollars, such advice, even though erroneous, and such provision in the will, even though she may not have understood its legal import, are not sufficient for refusing probate to her will.
    Appeal from Jasper Circuit Court. — How. Joseph D. Perldns, Judge.
    Affirmed.

      Oscar B. Elam for appellant. ■
    (1) The power of a married woman to make a will devising land is not absolute and unconditional. It is “subject to the rights of the husband, if any, to his curtesy therein.” Sec. 536, R. S. 1909. (2) Presumptions as to facts always take flight upon the appearance of the facts themselves. Brown v. Brown, 237 Mo. 668. (3) “Gross inequality in the dispositions of the property, where no reason for it is suggested, either in the will, or otherwise, may change the burden, and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind.” 1 Redfield on Wills, 537, 516; Lynch v. Clements, 24 N. J. Eq. 431; Gay v. Gillian, 92 Mo. 250, 264. (4) “The fact that the will in question displays an entire change from former intentions is strong evidence of undue influence in its procurement.” 1 Jarmon on Wills (5 Ed.), p. 139. (5) A'will procured by lying is no less invalid than a will procured by violence. Smith v. DuBoise, 78 Ga. 413; In re Budlong’s Will, 126 N. Y. 423, 7 N. Y. Supp. 289. (6) If decedent did not know the contents of the will the court will direct a verdict rejecting the will. Bradford v. Blossom, 207 Mo. 228. (7) The rule that “a mistake of law, pure and simple, is not an adequate ground for relief is confined to mistakes of the general rules of law; it has no application to the mistakes of persons as to their own private legal rights and interests.” 1 Jones’ Commentaries on Evidence, p. 151, sec. 24 (21); Burton v. Haden, 108 Ya. 51, 15 L. R. A. ,(N. S-) 1038. (8) A mere capacity to understand the will is not under the pleadings and circumstances of this case all that was required of the testatrix; under the pleadings in this case the burden was upon proponents to show that testatrix did in fact understand “the meaning of the instrument” executed as a will. Carlson v. Lafgran, 250 Mo. 527, 533; Cowan v. Shaver, 197 Mo. 203, 212. (9) If an attending witness attested only one sheet of paper, believing at the time that the whole will was contained on that sheet of paper, and was not advised or informed that other sheets of paper contained other portions of the will, or even if so informed and the other sheets were not within sight of the attesting witnesses, the attestation is not good under the' statute. The identification is not complete. The statute is mandatory. McGee v. Porter, 14 Mo. 611, 55 Am. Dec. 129; St. Louis Hospital Assn. v. Williams, 19 Mo. 617; Northcutt v. Northcutt, 20 Mo. 268; Simpson v. Simpson, 27 Mo. 288; Catlett v. -Catlett, 55 Mo. 341; Gordon v. Burris, 141 Mo. 602; Chafee v. Baptist Convention, 10 Paige (28 Chancery) 85; Cabett on Appeal, 8 Watts & Seargeant, 21, 40 Am. Dec.' 225. (10) The motion notwithstanding the verdict must be sustained in the ease at bar on the pleadings and the evidence. Dezell v. Casualty Company, 176 Mo. 253, 293; 2 Bouvier’s Law Dictionary (Rawle’s Third Revision) p. 1719. (11) If proponents themselves show that the paper offered is not what the testator was made to believe it was when he signed it, it cannot be adjudged to be his will, even in the absence of any averments to that effect in the petition of the contestants. ’ Cowan v. ' Shaver, 197 Mo. 203, 212. A contest is in the nature of an appeal from the probate court, and when instituted by a party in interest vacates the interlocutory judgment (of the probate court).... The institution of such contest imposes upon the circuit court the duty of determining the question of will or no will. ’ ’ State ex rel. v. Mc-Quillin, 246 Mo. 688; Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Cash v. Lust, 142 Mo. 637; Hogan v. Hinchey, 195 Mo. 527; Teckenbrock v. McLaughlin, 209 Mo. 533. (12) The burden of proof is upon the proponents of the will. State ex rel. v. McQuillin, 246 Mo. 674, 689; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 461; Teckenbrock v. McLaughlin, 209 Mo. 533.

      II. II. Bloss for respondents.
    (1) The validity or effect of the provisions of a will cannot he determined in a will contest, but the only issue is whether the will sought to be established was the will of the deceased. Cox v. Cox, 101 Mo. 168; Cordon v. Burris, 141 Mo. 602; Tingley v. Cowgill, 48 Mo. 291'; Lilly v. Tobbein, 103 Mo. 477. (2) The only burden that rested on the proponents of this will was to prove its due execution, proper age, sound mind, and all this was abundantly done. Card v. Cabil, 120 Mo. 283; Maddox v. Maddox, 114 Mo. 35. (3) It is not necessary that the witnesses attest every sheet of a will ’ or that it shall he shown to them. It is sufficient if all the sheets were in the room at the time of the execution and the attestation, and in the absence of proof to the contrary such is the presumption, and sheets which are hound together and constitute the will after the testator is dead are presumed to have been bound together at the time of attestation. 30 Amer. & Eng. Ency. Law (2 Ed.), 603. (4) The petition in this case charged that the beneficiaries of the will unduly influenced the testatrix in the execution thereof plaintiff is concluded by these statements and her proof should he confined to the persons charged, and she is not now permitted to urge on. her part that she was misled by her attorney as to her husband’s rights by curtesy. Jackson v. Hordin, 83 Mo. 175. (5) A will contest being a law action the finding by the jury based on sufficient evidence as to due execution, mental capacity, etc., is conclusive on the appellate court. Butler v. Assn., 73 Mo. 242; Benoist v. Murrin, 58 Mo. 307. (6) If the husband takes under this will, he waives his curtesy rights and there is no allegation in the petition that he has not accepted the provisions of the will, which he is by answer and otherwise trying to sustain; hence, no one is injured and the property is being distributed exactly as the deceased wanted it. Caster v. Gray, 159 Mo. 588.
   JAMES T. BLAIR, J.

This is a will contest. There was a verdict upholding the will, and judgment was rendered accordingly. Appellant and respondents Nathaniel Merle Wheat and Edith Phariss are the children and heirs at law of testatrix. Respondent N. M. Wheat is her surviving husband, and he and respondent Elliott are the executors under the will.

By the will testatrix devised (1) to her son three lots and parts of two other lots in Aurora and a one-half interest in a tract near the city — all_ subject to a life estate in N. M. Wheat, the husband; (2) to her daughter Edith Phariss one parcel in fee simple, and a remainder, subject to a life estate in N. M. Wheat, in three lots or parcels in Aurora and in a one-half interest in the above-mentioned tract near that city; (3) to N. M. Wheat, surviving husband, a life estate in all the property described in the devise to the son and in all that described in the devise to the daughter, Edith Phariss, except one-half of one lot. The will provides that the bequest to the husband is made in lieu of all his “other rights, interests or claims” in the estate of testatrix, and then provides that out of the income of the property devised to him for life he shall use $150 per year, until $1,000 shall have been so used, to purchase a home for appellant; that the home so provided shall be held by trustees and shall be so held until after the death of the then husband of appellant, and upon his death the title shall be conveyed to appellant, if living; and if she shall have predeceased her husband, then to appellant’s heirs, “excluding her said husband, however.” The residue of the estate was devised to the son and Edith Phariss in equal shares. A clause providing for the exclusion of any devisee who might contest the will is added.

The petition sets out the will, and then, alternatively and on information and belief, alleges fraud, duress, undue influence and mistake. These allegations need not be set out in full. It will suffice to say that they are. sufficiently broad that no contention made in appellant’s brief need be denied consideration because of want of a proper allegation in the petition. An answer and reply were filed.

Proponents offered evidence tending to show that early in October, 1916, testatrix prepared memoranda showing the disposition she desired to make of her estate and took them to an attorney for the purpose of having him draw her will. She discussed the matter with him and left the notes with him for his guidance. He prepared the will according to the directions, and submitted the document to testatrix. She required him to make a change or two, and the will was written and returned to testatrix. At this time the draftsman read it over to her. He testified it contained exactly what testatrix directed to be put in it; that she stated the will as written “was what she wanted.” Two neighbor women were called in and testatrix showed them the instrument, told them it was her will, expressed her satisfaction with it and asked them to witness it. This they did. The only evidence pertaining to the testamentary capacity of testatrix is to the effect that her mental condition was good. There is no evidence tending to show that any of the respondents intermeddled in any way with the preparation of the will, or that any one of them was present when it was signed. There was no evidence to support the allegations of fraud, coercion or undue influence. In the cross-examination of the witnesses to the will it was developed that they were unable to identify positively sheets one and two of the instrument and were able so to identify only sheet three upon which their signatures appeared. Some of the' answers of these witnesses are made the basis of a contention that other sheets have been substituted for original sheets one and two. The draftsman testified he was present when the will was signed and that it was then in the exact condition in which it was when put in evidence in this case. This witness also testified that the rqatter of a husband’s rights was discussed. He said he advised testatrix that a surviving husband was entitled to a life interest in one-half of his wife’s property. There was no evidence to show by what title testatrix held the property she devised. After the will was executed testatrix took charge of it. She died July 22, 1916, and the will was duly probated.

I. The contention that the will signed by testatrix and witnessed at her request was not the same document as that which was put in evidence in this case has for its foundation nothing more than a strained construction of an answer here and there in the cross-examination of a witness or two. Properly understood these answers do not justify the construction appellant gives them. There is no evidence of fraud. There was ample evidence, direct and other, that the document in evidence is the genuine will. There is, in fact, no ground for so much as a suspicion that it was not. Nevertheless, the question was submitted to the jury and the finding thereon was adverse to appellant, and is conclusive here.

II. Authorities are cited which bear upon undue influence, confidential relations and the burden of proof resulting th'erefrom, and the probative effect of a radical change in testamentary intention. There is an entire absence of any evidence which, calls for the application of the principles of these decisiqns.

III. Testatrix knew the contents of this will. Counsel does not really contend to the contrary. Testatrix gave written directions for its preparation. It was drafted and submitted to her. She caused it to be rerwritten in order to correct a minor error. It was re-submitted and read to her. It contained the exact provision she required to be incorporated in it. There was no mental, physical or educational obstacle to her understanding it. Her mind was sound. She was not blind or otherwise so afflicted that she could not read. The will was written in her own language. She approved it as written. There was no evidence of fraud, coercion or.undue influence. It is now contended that though testatrix knew what the will contained and that it contained the provisions she directed should be put into it,' yet it must be held not her will because she received unsound ad~->ce joncerning the rights of a surviving husband in th( realty of his wife. The bequest of $150 per annum to be used for a home for appellant is to come, out ,of the income from the life estate given the husband. It is said this bequest is an ineffective bequest; that the husband of testatrix was entitled by the curtesy to a life estate in the realty of his wife and that the attempt to impose a charge upon it in favor of appellant is unavailing. Prom this it is argued that appellant gets nothing under the will; that the will shows an intent to give her a home; that the error grew out of the erroneous advice testatrix received and this constitutes a mistake which defeats the whole will. The record does not so much as suggest bad faith on the part of the draftsman. The advice he gave was given in an honest belief that it was sound — a belief which the record shows was adhered to when the draftsman testified on the trial of this case.

(1) In the first place the evidence does not show how testatrix held the land she devised. Property may be so conveyed that the husband’s curtesy is excluded and yet the wife’s estate may be one of which she can dispose by will. [Jamison v. Zausch, 227 Mo. l. c. 412, et seq.; McTigue v. McTigue, 116 Mo. l. c. 142,143.] The exception in the statute (Sec. 505, R. S. 1919) empowering women to dispose of property by will has no application. It applies to lands in which the husband has curtesy and not to those from which curtesy has been excluded. In order to sustain appellant’s present contention it would be necessary, first, to assume that the title of testatrix was so taken that curtesy was not excluded. We do not think such an assumption should be made against the will.

(2) In the second place, even if the assumption referred to could be made, it would not sustain appellant’s position. Her contention is based upon a misconception of the rule concerning the invalidation of wills by mistake.

“ Where a testator, in addition to complete testamentary capacity, is in full enjoyment of average physical and educational faculties, it would seem that in the absence of fraud or of undue influence, a mistake, in order to defeat tine probate of his entire will, must in substance or effect really amount to one of identity of the instrument executed; as, for instance, where two sisters, in one case, or a husband and wife, in another, prepared their respective wills for simultaneous execution, and through pure error one executed the other’s, and vice versa. (Anon. 14 Jur. 402; Re Hunt, L. R. 3 P. & D. 250; Nelson v. McDonald, 61 Hun, (N. Y.) 406.) Short of this, however, or of something amounting, in effect, to the same thing, it is against sound public policy to permit a pure mistake to defeat the duly solemnized and'completely competent testamentary act. It is> more important that the probate of the wills of dead people be effectivly shielded from the attacks of a multitude of fictitious mistakes than that it be purged of wills containing a few real ones. The latter a testator may, by due care, avoid in his life time. Against the former he would be helpless.

“Assuming* that the lawyer’s assurance that the . . . clause would permit the executors to pay over the entire income after the debts were satisfied, was intended and understood as legal advice upon the construction of this clause, and that it was legally unsound, . . . that, also, in the absence of fraud or undue influence, is insufficient to defeat probate of the will. It is no new thing* for provisions in wills to turn out under the established rulings of the courts, to have a very different meaning from that which the testators themselves, under the honest but mistaken advice of counsel, thought they had when the wills were executed, but this has never been a ground for refusing probate.” [In re Gluckman’s Will, 87 N. J. Eq. l. c. 641, et. seq.]

“If being of sufficient- mental capacity,, and free from insane delusion or undue, influence, he executed the instrument with a knowledge of its nature and contents, and intending that it should he his laM will, its admission to probate cannot he opposed by evidence that he did not understand the legal effect of all its provisions, or truly appreciate the proportions in which his property would he thereby distributed. To allow this to he done would he to defeat, by evidence of the most unsatisfactory and untrustworthy character, an instrument voluntarily executed by a competent testator with all the forms and solemnities which the statute makes essential to the validity of a testamentary disposition.” [Barker v. Comins, 210 Mass. l. c. 488.]

“IIow often is it, that the words used by the scrivener convey a different estate from' what the testator designed! Yet it has always been decided that parol testimony could not be admitted to prove that the devisor meant to give a different estate from what the will expressed.” [Comstock v. Hadlyme, 8 Conn. l. c. 265.] .

“No man knows, when he sits down to write a contract or to write his will, hut that at the next law or chancery term, under the revised statutes concerning intent, he may be stultified in respect to a matter concerning which he knew more and was better qualified to speak, and did speak better than all the world beside. Judging from what we have felt and heard in the course of this term, I am sure, if we impose an understanding of our new statutes in this branch of the law upon any one, as a condition to the making of a will, very few will succeed; and if we undertake to make new wills for every partial failure, while we embark in an interminable labor, I still fear we shall not be better testators than those who were more lawfully employed ,in disposing of their own estates.” [Salmon v. Stuyvesant, 16 Wend. l. c. 332.]

In Munnikhuysen v. Magraw, 35 Md. l. c. 287, 288, it was said: If testatrix “knew and understood what the actual contents of the will were, that would be sufficient, although in point of fact she may have had some erroneous opinions with regard to their legal effect and operation. Sane persons, when they express themselves in writing, are presumed to- mean what the writing imports, and it would be dangerous and in plain violation of the Statute, of Frauds, to allow it to be impeached -or overthrown by evidence aliunde, showing that they meant something else, or did not understand its true import and operation.”

The fact that a testator does not appreciate the legal effect of language he voluntarily and intentionally uses does not defeat the will. [Re Carter, 42 Ont. L. 57.]

These excerpts disclose the rule and the reasons for it. The law does not require of every testator, upon pain of refusing his will probate, that he shall have perfect knowledge of the law of real and personal property.

Appellant relies upon Cowan v. Shaver, 197 Mo. 203, and Bradford v. Blossom, 207 Mo. 177. In the Cowan case there was evidence of impaired • mental capacity, undue influence and a fraudulent conspiracy to procure the drafting and execution of a will different from that desired by the testator and different from the provisions he was caused to think it contained when he signed it. In the Bradford case the confidential agent of testatrix procured the will to be drafted in violation of instructions given by testatrix and then induced her to execute it under the belief that it contained.the provisions she directed to be put in it. In that case this court approved (but held inapplicable) a rule laid down in Couch v. Eastham, 27 W. Va. l. c. 805, as follows: “The mistake which will avail to set aside a will, is a mistake as to what it contains, or as to the paper itself, not a mistake either of law or fact in the mind of the testator, as to the effect of what he actually and intentionally did.” This is more applicable to the case at bar. The principle of the decisions from which we have quoted applies here, and appellant’s position is untenable for this reason also.

IV. The objections made to the answer overlook Section 525, Revised Statutes 1919. The judgment is affirmed.

All concur.