source: Caselaw Access Project

author: GRAVES, J. BROWN, J.

license: Public Domain

text:
    WILLIAM B. MAJOR et al. v. LELIA M. KIDD et al.; LELIA M. KIDD, and LELIA M. KIDD as Executrix of Last Will of BENJAMIN R. MAJOR, Appellants.
    In Banc,
    November 17, 1914.
    1. WILL CONTEST: Careful Consideration of Evidence. Courts give careful consideration to the evidence in cases contesting the validity of wills, to the end that it may be seen that there is substantial testimony upon the issues of either mental incapacity or undue influence; and especially, to the testimony concerning incapacity, for the reason that opinions of lay witnesses often furnish the basis for the verdict.
    2. -: Law Case. A will contest is a trial of issues of law, and is governed by the rules of law applicable to legal actions.
    3. -: -: Incapacity: Substantial Evidence. If there is substantial evidence tending to support the charge of testator’s mental incapacity to make the will in contest, the verdict of the jury, the instructions being proper, is binding upon the appellate court.
    4. -: -: -:---: Contestants’ Testimony. If the evidence adduced by contestants upon the issue of testator’s mental incapacity is substantial, the issue then becomes a matter for .the jury, notwithstanding the contradictory proof produced by proponents.
    5. -: Undue Protest of Mental Soundness. Where the will states testator is “now in unusual strength of body and mind,” that “I am now in the fuller enjoyment of all my faculties than for many years past” and that “the added years have not lessened my mental faculties,” it earmarks itself with a question of his sanity.
    6. -: Incapacity. Evidence that testator in 1859, in robust health, both bodily and mentally, was the owner and manager of an exceedingly large farm; that within that year he became mentally unbalanced, and after three physicians had consulted upon his case, he was taken to an asylum for the insane, where he remained for more than a year; that from the day of his return to his death, in 1910, at the age of 93, he • attended to none of the business upon that farm, but it was attended to wholly by his wife and brother; testimony of two doctors who had occasion to see and converse with him, and give it as their opinion that he was of unsound mind; testimony of men and women who worked upon the farm, detailing facts which authorize them to express an opinion as lay witnesses and who testify that he was of unsound mind; and testimony of many neighbors, who knew him both before and after he became insane in 1859, and who testify that in their judgment he.was of unsound mind during all the years from 1860 to the day of his death, is substantial evidence requiring the issue of his mental capacity to make a will in 1889 and to add a codicil in 1897, to be submitted to the jury.
    7. -: Sound Mind: Burden of Proof. The burden is upon the proponents of the will to show that testator was of sound mind. It is not error to instruct the jury that the burden rests upon the proponents to prove, by the greater weight of the credible evidence, that testator, at the time of making the will, possessed a sound disposing mind. The burden is not met by making out a prima-facie case, but remains upon proponents throughout the trial. [Following Goodfellow v. Shannon, 197 Mo. 1. c. 278 et seg., and reviewing all the cases.]
    8. -: -s Statute. Because of the wording of the statute (Sec. 535, R. S. 1909) declaring that “every male person, twenty-one years of age and upward, of sound mind; may, by last will, devise all his estate,” etc., the question of mental capacity of testator is in all will cases. The burden of proving the testator’s mental capacity is by said statute placed upon the proponents, not only in the probate court, but in the circuit court, for a will contest is but the probating or rejection of the will.
    9. -: -: Ordinary Affairs: Capacity and Necessity of Heirs. An instruction telling the jury that if testator did not have sufficient soundness of mind “to understand the ordinary affairs of life” he was incapacitated to make a will, is not erroneous.

      Held, by BROWN, X, that said instruction in requiring testator to understand the “capacity and necessity” of those who are. the natural objects of his bounty, is erroneous, but as that part of the instruction is not relied upon by appellants it is not ground in this case- fot reversal. ■
    10. -: -: Adjudged Insane. An instruction telling the jury “that under the law as it existed in 1859 and 1860, it was not required that a person be adjudged insane by any court or tribunal in order that he be placed in the insane asylum, but might be sent as a private patient upon the certificate of two physicians,” even if technically erroneous, was harmless in this case, the facts being that testator was taken to an insane asylum in 1859 and remained there for over a year, and made his will in 1889, and the evidence of his incapacity being satisfactory.

      Appeal from Pettis Circuit Court. — Row. Eopldns B. Shain, Judge. ■
    Aeeirmed.

      W. M. Williams, G. W. Barnett and Montgomery & Montgomery for appellants.
    (1) The court erred in refusing the peremptory instruction in the nature of a demurrer to the evidence asked by the defendants at the close of the entire testimony. There was no substantial evidence that, at the time of execution of the will and codicil in question, the testator did not have the requisite testamentary capacity. Winn v. Grier, 217 Mo. 420; Gibony v. Foster, 230 Mo. 106; Sayer v. Princeton University, 192 Mo. 95; Cash v. Lust, 142 Mo. 630; Hughes v. Rader, 183 Mo. 630; Wood v. Carpenter, 166 Mo. 465; Cutler v. Zollinger, 117 Mo. 92; Archambault v. Blanchard, 198 Mo. 384; Riley v. Sherwood, 144 Mo. 354; Berberet v. Berberet, 131 Mo. 399; Defoe v. Defoe, 144 Mo. 358; McF'adin v. Catron, 138 Mo. 197; Fulbright v. Perry County, 145 Mo. 432; Aylward v. Briggs, 145 Mo. 604; Crossan v. Crossan, 169 Mo. 641. (2) Peculiarities and eccentricities, weakened mental and physical condition caused by age or disease, imperfect memory, failure to transact ordinary business and non-recognition of friends or members of the family at times, are wholly insufficient to show want of testamentary capacity. Gibony v. Foster, 230 Mo. 131; Sayer v. Princeton University, 192 Mo. 95; Winn v. Grier, 217 Mo. 420; Cash v. Lust,' 142 Mo. 630; Archambault v. Blanchard, 198 Mo. 384. (3) The court erred in giving the second instruction on behalf of the contestants because it places upon the proponents the burden of proof at the close of the whole case on the issue of mental capacity. The law presurues sanity and after the attesting witnesses have been examined, it devolves upon the contestants to establish incapacity by the greater weight of the evidence. Jackson v. Hardin, 83' Mo. 182; Lindsey v. Stevens, 229 Mo. 614; Sehr v. Lindeman, 153 Mo. 288; Riggin v.. College, 160 Mo. 507; Gribony v. Foster, 230 Mo. 131. (a) “The evidence of the subscribing witnesses showed that the testator was of lawful age, and of sound mind, as well as the due execution of the will. This made a prima-facie case for the proponents.” Harris v. Hayes, 53 Mo. 96. (b) “After the proponents had established the .execution of the will and the sanity of the testator by the subscribing witnesses, the burden then of establishing incompetency of the testator shifted and it devolved upon the contestants to overcome the presumption of sanity by persuasive evidence.” Riggin v. Westminster College, 160 Mo. 579; Holton v. Cochran, 208 Mo. 410; Sehr v. Lindemann, 153 Mo. 276; Southworth v. South-worth, 173 Mo. 59; McFadin v. Catron, 138i-Mo. 197; Fulbright v. Perry County, 145 Mo. 432. (c) While some cases in this State hold to the contrary, the principle upon which the courts hold that the contestants have the burden of proof is well stated in 1 Underhill on Wills, sec. 86. Gfaresche v. Boyce, 8 Mo. 228. (4) The fifth instruction required, as a test of the capacity to make a will, ability on the testator’s part to comprehend “the ordinary affairs of life.” While this language is used arguendo in some cases, it is not proper in an instruction to a jury. It opens too wide a door for speculations and conjectures. (5) Contestants’ third instruction was erroneous and extremely prejudicial to the proponents of the will. It singled out and directed special attention to the fact that the testator, thirty years before the will was made, was taken to the asylum at Fulton, and authorized the jury to infer without evidence to that effect that this was done upon the certificate of two physicians; and in connection with instruction 4, further authorized them to build upon this fact and presumption another presumption that he continued insane during the remainder of his life. (6) The court erred in giving instruction 4. It does not require the jury to find that the insanity referred to was of a permanent character, as a condition precedent to the presumption of its continuance. Eichardson v. Smart, 152 Mo. 634, 65 Mo. App. 18; Buford v. Gruber, 228 Mo. 257; State v. Lowe, 93 Mo. 547; 22 Cyc. 1116, notes 23 and 24. (7) The will is fair, sensible and reasonable on its face. It makes no discrimination as ■ to the 'children but names them all and gives them one dollar each. It then bequeaths the entire residue of the estate to his wife and gives a sufficient reason for leaving everything to her.

      George F. Longan and J. W. Sudclath S Son for respondents.
    (1) “If plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts. Not only this but by the proof of such a relation, and such a bequest, the law indulges the presumption that undue influence has been used.” Mowry & Kettering v. Norman, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 143.; Maddox v. Maddox, 114 Mo. 40. (2) The court did not err in refusing the peremptory instruction asked by defendant because: Whenever there is any substantial evidence of mental incapacity then the case must be submitted to the jury and the higher court will not disturb' the verdict, although it deem it against the weight of evidence. Naylor v. McKuer, 248 Mo. 423; Eo'berts v. Bartlett, 190 Mo. 695; Turner v. Anderson, 236 Mo. 523; Crum v. Crum, 231 Mo. 626; Holton v. Cochran, 208 Mo. 314; Mowry & Kettering v. Norman, 204 Mo. 173. (3) The burden is upon the defendant to establish the testamentary capacity of the testator by a preponderance of all the testimony, and this burden remains throughout the case. Mowry v. Norman, 223 Mo. 463; Turner v. Butler, 161 S. W. (Mo.) 745; Naylor v. McRuer, 248 Mo. 423; Mowry & Kettering v. Norman, 204 Mo. 173. (4) The court did not err in giving instruction 5, fixing test of mental capacity to make a will, and requiring “ability on the part of the testator to comprehend the ordinary affairs of life.” Naylor v. McRuer, 248 Mo. 423; Orum v. Orum, 231 Mo. 626; Turner v. Anderson, 236 Mo. 523; Weston v. Planson, 212 Mo. 248; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 680. (5) The court did not err in giving instruction 3, because it was a clean-cut statement of what the law on the subject under consideration was, at that time, and this is not disputed. R. S. 1855, p. 223. (6) The court did not err in giving instruction 4, because the evidence tended to establish an insane condition of mind existing and exhibiting its peculiarities for a long period of years. An instruction embodying. this principle should be given. State v. Lowe, 93 Mo. 570.
   GRAVES, J.

Action contesting the will of Benjamin R. Major, who died in Pettis county, November 24, 1910, at the advanced age of 93 years. He left surviving him, Sallie P. Major, and three children, William B. Major, Emma (Major) Short, and Lelia M. (Major) Kidd. The plaintiffs are the son of Benjamin R. Major, and his wife. The widow died shortly after the death of the husband, leaving a will. The defendants are the other two children, Mrs. Kidd and Mrs. Short, and Mrs. Kidd as executrix. The grounds of contest were (1) undue influence exercised over the testator by Mrs. Lelia M. Kidd, the daughter, and Sallie F. Major, the wife; and (2) mental incapacity.

Some singular expressions in the will and codicil prompt us to set out the same in full. They read:

“I Benjamine R. Major, of Heaths Creek, Pettis county, Missouri, though now in wrmsual strength of body and mind, yet knowing from my advanced age that my earthly pilgrimage nears its end, do declare, and wish to have published, this, my last will and testament :

“First. After the payment of my funeral expenses, and all just debts, I bequeath to my children, Emma C. Short, Lelia M. Kidd, and Willie B. Major, the sum of one dollar each.

“Second. After the payment of the above named debts and bequests, I bequeath and devise all' the residue of my estate, both personal and real, of whatsoever character and description, and wherever situated, at the time of my death, to my beloved wife, Sallie F. Major, to hold the same as her absolute property in fee, with the right and power to use, enjoy and dispose of the same, or any part thereof, by gift, sale, deed or will, as to her may seem proper.

“My purpose and incentive in thus willing and bestowing my estate upon my said wife being to express my recognition of her signal fidelity to me during my married life, as also the fact that it is owing to her good judgment, business management, industry and untiring watchfulness through many years, that my property has been preserved and improved in value; and I have implicit confidence in her ability and disposition to continue to so manage and dispose of it as to best promote her welfare and good purposes.

“It is owing to her tender care and wifely ministrations that, in my advanced age, my health is so much restored that I am now in the fuller enjoyment of all my faculties than for many years past; and I leave this as a lasting testimony of my love and gratitude for and to her.

“Third: I hereby designate and appoint my said wife, Sallie F. Major, the sole executrix of this my last will and testament, and request and direct that she be not required to execute bond as such executrix, and that without making any inventory or appointment of my estate, she pay off and discharge any debts that may exist against my estate, and that she pay over to my said children the special bequests named in the foregoing will; and then apply the residue of my estate to her own use as hereinbefore, willed.

“In witness whereof I have hereunto set my hand and seal, this 26th day of October, A. D. 1889.

“Benjaminb R. Major. (Seal.)

“I, Benjamine R. Major, of Pettis county, Missouri, do hereby make, declare and publish the present writing to be the codicil to the attached and foregoing my last will and testament, which bears date the 26th day of October, 1889.

“ITEM I.

“Whereas, in the good providence of Cod my life has been spared many years beyond my expectations and the added years have not lessened my mental faculties, but they have deepened my affection for my beloved wife and shown the justness and wisdom of the devises made in the foregoing will to her, but her advancing age has also warned me that she may not survive me, and I desire during her lifetime and now, while I am of sound and disposing mind, to make a further direction about the descent and distribution of my property in the event that my beloved wife may not survive me.

“In doing so I hereby affirm and confirm the foregoing will and the statements therein contained and especially and particularly direct that nothing herein contained shall in anywise, change, alter or affect the gifts and devises contained in the foregoing will in the event that my beloved wife survive me,- in which event the whole of my estate shall pass and descend as by the foregoing will directed.

“ITEM II.

“But if my beloved wife shall not survive me then it is my will and I hereby devise all my property, both real and personal, in the manner following, viz.:

“ (a) I give and bequeath to my son William B. Major and his wife, Edmonia Major, all the right, title, interest and estate of which I may die seized of and in and to the lands constituting the farm where they now live, known as the Estill farm, and more particularly described as follows: The southwest quarter of the southwest quarter of section nineteen, and all that part of the northwest quarter section thirty, lying north of Heath Creek, and all in township forty-eight, and range twenty, in Pettis county, Missouri, and containing about one hundred and sixty-seven acres. This description is intended to include all of the place now used and occupied by my said son and his wife.

“To have and to hold during their lives and the full and free use and enjoyment of the same and the rent, issues and profit thereon so long as they or either of them shall live, an,d the remainder therein after the expiration of the life estate aforesaid to the child or children of their bodies, or their descendants surviving them, then to my residuary legatee and devisee hereinafter named.

“ITEM III.

“To my daughter Emma, the wife of U. F. Short, the sum of five dollars, she and her husband having already received sufficient estate from my wife and myself.

“ITEM IV.

“All the rest and residue of my estate, both real and personal, of whatever nature, I give, devise and bequeath to my beloved daughter Lelia M. 'Kidd, and if she should not survive me, then to her children share and share alike.

“ITEM Y.

“It is my intention and desire that should my beloved wife, Sallie F. Major, survive me then that my entire estate pass to her in accordance with the terms of my last will as hereinbefore stated and that she be my sole executrix, but in case she dies before-1 do, then the estate is to pass as by this codicil directed and my daughter, Lelia M. Kidd, shall be my sole executrix, and I request that in either event neither be required to give any bond as such executrix.

“In witness whereof, I, the said Benjamine R. Major, have to this codicil set my hand and seal this the--day of November, 1807.

“B. R. Major.”

The trial court took from the jury the question of undue influence, but submitted the question of mental incapacity. The jury found against the will, and. Mrs. Kidd individually and as executrix has appealed. Mrs. Short abided by the judgment nisi. The points made are (1) refusing a peremptory instruction to And for the will upon the ground of mental incapacity, and (2) alleged errors in other instructions. These in order in the course of the opinion.

I. The first problem confronting us is defendant’s demurrer to the testimony. Courts look with care to the testimony in will cases, to the end that it may be seen that there is substantial testimony upon either undue influence or the question of mental incapacity. Especially is this true of mental incapacity, for the reason that opinions of lay witnesses often furnish the basis for the verdict. Courts scan with care such opinion evidence to see that the witness has given a detail of such potent facts, tending to show mental incapacity, as will authorize the expression of an opinion. This and other things spur the courts to a diligent search of the evidence. The law gives one possessed of mental capacity the right to dispose of his property according to his own way of thinking, and it is not for courts or juries to make a will for him. But when this is said, all has been said, as to "the prerogative of this court. If there is substantial evidence tending to support the theory of mental incapacity, the verdict of the jury (they being properly instructed) is binding upon this court. At. an early date this court announced that the trial of a will case (whilst in a way different) was the trial of issues at ■ law and not in equity, and therefore to be guided by the rules of law cases. The full case law upon this question has been so fully reviewed by our Chief Justice in the case of Turner v. Anderson in Banc, 260 Mo. 1, that we refer the anxious thereto, without further encumbering this opinion. I thoroughly agree to the views in the Turner case, supra. Measured by these rules,' the question is, was there evidence sufficient upon the question of mental capacity to take this case to the jury upon that question? We think so. The details of such evidence we take next.

II. The facts of this case are few and simple, although, owing to the great number of witnesses, the record is voluminous. We shall not, on this demurrer, discuss the evidence for the defendants. If the evidence adduced by contestants was substantial upon the question of mental incapacity, it then became a matter for the jury, notwithstanding the contradictory proof from contestees.

To start with, this will is badly "ear-marked.” Note some of the phrases. In the outset the will-maker, and we usé the term advisedly, had the testator to declare that he was "now in unusual strength of body and mind.” Why such declaration, if the mind was really sound? Why emphasize by use of the qualifying word "unusual?” Again the will-maker has the testator further declare "that I am now.in the fuller enjoyment of all my faculties than for many years past. ” If it were true, why have him solemnly declare it in the will? Why necessary for a sane man to be persistently reiterating the fact of his sanity in his will? We know that wills frequently use the stock expression of "being of sound mind and memory,” but we have never yet seen one‘wherein the writer undertook to so thoroughly impress the idea of testa-, tor’s sanity. The same idea has drifted into the codicil. Note the language: "the added years have not lessened my mental faculties.” Speaking for myself personally I would question the mental status of any man who would append his name to a will so peculiarly worded as is the document presented here as the last will and testament of Benjamine R. Major. But let us leave individual views and get to further facts. The will was in evidence and the jury had- the right to consider its terms for all purposes of the case. Then in addition it appears that in 1859 the testator was in robust health, both bodily and mentally. He was in active charge of an exceedingly large farm of his own. He was in truth and in fact the owner and man ager thereof. But during the'year he became mentally unbalanced, and after three physicians had consulted upon his case he was -taken to the asylum for the insane at Fulton, Missouri. He remained there for more than a year, and then returned to the farm: From that day to the day of his death in 1910 he attended to none of the business upon that farm. His brother and his wife attended to it all. These facts are conclusively shown by a score or more of witnesses. Two doctors, who had occasion to see and talk with him, give it as their opinion that he was of unsound mind. Men and women who worked upon the place say he was of unsound mind, and they detail facts which would authorize them to express an opinion as lay witnesses. Many of the neighbors, who knew him both before and after the sickness of 1859, when his mind went wrong, testified that in their judgment he was of unsound mind during all the years from 1860 to the- day of his death. The plaintiffs and the defendant Mrs. Short testify to like effect, and these witnesses detail facts upon which their conclusions are based. In fact, the contestants not only introduced substantial evidence of mental incapacity, but it went far beyond the usual meaning of the term substantial evidence. There was no error in refusing the demurrer to the evidence.

III. For the contestants the court gave this instruction :

“The burden rests upon the defendant to prove, by the greater weight.' of all the credible evidence, that Benjamine R. Major, at the time of making the will in question, or at the time he made the codicil thereto, possessed a sound and disposing mind and memory, as defined in other instructions.”

This instruction contestee says is error. It places the burden upon the proponents of the will to show the mental capacity of the testator. The writer was called upon to wrestle with this exact question on a previous occasion. [Goodfellow v. Shannon, 197 Mo. l. c. 278.] At that time we made an extended research of the cases in Misouri. We found some of our cases, wherein the question as to the burden of proof was not before this court because not an issue on the record, in which we used some language which might be construed to mean that after a prima-facie case had been made the burden of proof shifted and was then on the contestants. Thus in Sehr v. Lindemann, 153 Mo. l. c. 288, we found this language:

“Under the Statute, of Wills the owner of property is permitted to dispose of it as he chooses after his death. If he makes no disposition of it by will the Statute of Descents disposes of it for him. When a will is contested it devolves upon the proponents to prove the execution of the will, that the testator was of requisite age and that he was sane. [Harris v. Hays, 53 Mo. 90; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 456.] This makes out a primafacie case, and it then devolves upon the contestants to establish incompetency or undue influence.”

But nowhere in that case was the question as to where the burden of proof fell further discussed. Nor had the question been raised by an instruction, as here. The sole question in that case was whether or not there was any substantial evidence to show mental incapacity or undue influence, and Marshall, J., held that there was no such evidence. The question is this case was not therefore in that case. So too in Riggin v. Westminster College, 160 Mo. l. c. 579, we found this language:

“The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know ’ what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322; Jackson v. Hardin, 83 Mo. 175.] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal execution of a will according to the requirements of the statute is shown, as was done in the case at bar, and the subscribing witnesses testify to the sanity of the testator, and he is of proper age to make a will, a prima-facie case in favor of the proponents of the will is made out, and the burden of proof rests upon the contestants to overcome this presumption by persuasive evidence.”

This case, like the Sehr case, supra, did not call for the expression of any opinion upon the question as to where the burden of. proof rested in the issue of mental capacity. The case only calls for a discussion of the question of the sufficiency of the proof. In other words, whether there was any substantial evidence of mental incapacity, and we held that there was no such evidence. These are samples of expressions that we found in several other cases, but they were all cases wherein we were not required to give opinion as to where the burden of proof rested.

At the time of writing the Goodfellow case, supra, we also saw the language used by Philips, Com., in Jackson v. Hardin, 83 Mo. l. c. 182, whereat he said: “The law presumes that the testator was possessed of a sound and disposing mind. And after the statements made by the attesting witnesses, the burden of proof rested on the contestants to overcome this presumption by persuasive evidence.” But like the . other cases, we went back over the opinion in this case to see what we were called upon to decide. We found that Judge Philips had thus formulated the question: “Applying these established standards .to the facts of this case, did the plaintiffs on the issue of mental incapacity make out a prima-facie case?” So this case like the others did not involve the question in the case at bar.

Then in the Goodfellow ease, having gone over all this line of cases, wherein we had expressions of the kind indicated above, we turned for cases wherein the question of the burden of proof was a real live

issue. Cases where the matter had to he discussed and determined in order to dispose of the case. After this examination, in Goodfellow v. Shannon, 197 Mo. l. c. 278 et seq., we thus summarized our conclusions of the holdings made by this court:

“Defendants criticise instruction number 11, which is in this language:

“ ‘The court instructs the jury that the burden of proof is upon the defendants to show the writing offered as the will of Caroline Shaunon was executed by Caroline Shannon as and for her will, and that at the time of the execution thereof said Caroline Shannon was of sound and disposing mind and memory. ’ “This instruction is proper. It simply places the onus upon defendants (the proponents of the will) to show proper execution and attestation, and that the testatrix was of sound'mind. This burden has always been upon defendants in will contests. [Carl v. Gabel, 120 Mo. l. c. 295; Norton v. Paxton, 110 Mo. l. c. 462; Craig v. Craig, 156 Mo. l. c. 362; Maddox v. Maddox, 114 Mo. l. c. 46.]

“In Norton v. Paxton, supra, where the very same question was up, it was said: ‘It is sufficient for those who claim under the will to make out a primafacie case in the first instance; There is a presumption that every adult person is compos mentis, but the presumption is one of fact only. It may be that the production of a will, reasonable on its face, with proof of due execution and attestation, and that the testator was of full age, will make out a prima-facie case on the part of the proponents, thus giving full force to the presumption, though the usual course is to offer some evidence of mental capacity. The parties claiming under the will having made out a prima-facie case, the contestants must bring forward their evidence. But it does not follow from all this that the burden of proof shifts. It remains with those claiming under the will.’

“In Craig v. Craig, supra, Judge Valliant says: ‘It is as essentia] that the testator be proven of sound mind at the time as that the instrument was executed in due form, yet this court has held that it is not essential that both subscribing witnesses testify to the soundness of mind in the testator.’

“It, therefore, appears that while our practice requires the making of a prima-facie case by the proponents of the will, by showing the due execution of the will and the sanity of the testator, and then requires contestants to put in their case, it does not shift the burden of proof as to mental capacity, but this burden remains throughout with the defendants, or proponents of the will.”

Our judgment at that time was in a large measure due to the exhaustive review of the case law in Missouri, upon the exact question, by Black, J., in Norton v. Paxton, 110 Mo. 456, l. c. 461. Judge Black in the Norton case said:

“The second instruction given at the request of the contestants is so framed as to direct a verdict for them, unless it appeared from .all the evidence that deceased possessed a disposing mind; while the one given for defendant cast the burden up,on the contestants to show want of testamentary capacity. They are plainly conflicting, and one of them should have been refused.

“Much has been said in the books concerning the burden of proof in these will cases. Under our law the proceeding to contest a probated will is in the nature of an appeal and a trial de novo. There can be no doubt but it devolves upon those who claim under the will to show that it was duly executed and attested, and that the testator was of the requisite age. [Cravens v. Faulconer, 28 Mo. 21; Tingley v. Cowgill, 48 Mo. 294.]

In Harris v. Hays, 53 Mo. 90, it was said the proper course'is for the proponents of the will to introduce the subscribing witnesses, and establish by them the execution of the will and the sanity of the testator. This makes out a prima-facie case, and the burden of establishing incompetency or undue influence rests then on the contestants. In the case of Benoist v. Murrin, 58 Mo. 322, the contestants admitted the genuineness of the signatures of the testator and the witnesses, but did not admit the sanity of the testator. This court denied to contestants the right to open and close, and in clear and unqualified terms held that it devolved upon those claiming under the will to establish the sanity of the testator. It also held that this burden was not shifted during the trial by proof of the factum of the will and testamentary competency by the attesting witnesses, but remained with .the party setting up the will. Jackson v. Hardin, 83 Mo. 178, is cited as asserting a different rule, but we do not so understand that case.

“It-is sufficient for those who claim under the will to make out a prima-facie case in the first instance. There is a presumption that every adult person is compos mentis, but the presumption is one of fact only. It may be that the production of a will, reasonable on its face, with proof of due execution and attestation, and that the testator was of full age, will make out a prima-facie case on the part of the proponents, thus giving fqll force to the presumption, though the usual course is to offer some evidence of mental capacity. The parties claiming under the will having made out a prima-facie case, the contestants must bring forward their evidence. But it does not follow from all this that the burden of proof shifts. It remains with those claiming under the will.

“As said by Mr. Sehouler: ‘And the larger and better class of American authorities point, moreover, to the conclusion that the court or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind; so that, if there be inevitable doubt left on this point from all the testimony, the will cannot be considered as proved.’ [Schouler on Wills, sec. 174.] This is in accord with the previous rulings of this court. It follows that the instruction given at the request of the contestants. is correct, and the one given at the request of the defendants is wrong.”

This was a case in which the question of where rested the burden of proof was the crux of the case, as it was in the Goodfellow case, supra. The Norton case was cited with approval by Maceaklane, J., in Maddox v. Maddox, 114 Mo. l. c. 46, whereat he said:

“The onus is on the proponents of a will, in a contest of this character, to prove its proper execution and attestation and also that the testator was of proper age and of sound mind. When these facts are shown, a will prima-facie valid is established, and it then devolves upon those.attacking its validity to prove fraud or undue influence, if either is charged. [Norton v. Paxton, supra; Gay v. Gillilan, 92 Mo. 255; Woerner’s American Law of Administration, sec. 31; J ones v. Roberts, 37 Mo. App. 174; Schouler on Wills, sec. 239.]”

In Carl v. Gabel, 120 Mo. l. c. 294, where the matter again came up on an instruction, as in the case at bar, Brace, J., said:

“We find no error in the refusal of the court to give defendant’s instruction number 10 or in giving number 1 for plaintiff. While it was not directly alleged in-the petition that the testatrix was not of sound mind, this issue was necessarily involved in the issue which the court under the statute is required to frame and submit to the jury, i. e., ‘Whether the writing produced be the will of the testator or not,’ which issue must be tried by the jury. The court had no right to withdraw any part of that, issue from the consideration of the jury. It is well settled law in this State that ‘the onus is on the proponents of a will, in a contest of this character, to prove its proper execution and attestation and also that the testator was of proper age and of sound mind. "When these facts are shown, a will prima-facie valid is established, and it then devolves upon those attacking its validity to prove fraud or undue influence, if either is charged. ’ [Maddox v. Maddox, 114 Mo. 35', and authorities cited; Harris v. Hays, 53 Mo. 90.]”

In effect Judge Brace says that the question of mental capacity is in all will cases. And if we were called upon (and I expect we are in the instant case) to give a reason for the Misgourj rule, we would answer that it is because of the wording of our Statute of Wills. The statute not only says how wills shall be made, but it also says who can make them. Section 535', Revised Statutes 1909, reads:

“Every male person, twenty-one years of age and upward, of sound mind, may, by last will, devise all his estate, real, personal and mixed, and all interests therein, saving the widow her dower. And every male person over the age of eighteen years, and of sound mind, may, by last will, bequeath all his personal estate, saving the widow her dower. ’ ’

Section 536 speaks of women, but has the same phrase as to soundness of mind. Taking a will*, which conveys land, made by a male, before it is a will at all, it must he by a male person over twenty-one years of age, and by a male person of sound mind. Before such will can be admitted to probate, if it conveys lands, it must be shown (1) that the person was a male person, (2) that he was over the age of twenty-one years, and (3) that he was of sound mind. It is just as much a part of the case for proponents of such a will to show mental soundness as it is to show sufficient age, in an attempt to probate or prove the will. We are speaking now of the probate court. As to what the proof shall be in that court, section 551, Revised Statutes 1909, says:

“If such witness appear before such officer, and make oath on affirmation that the testator signed the writing annexed to such commission, as his last will, or that some other person signed it by his direction, and in his presence, that he %uas of sound mind, that the witness subscribed his name thereto in the presence of the testator, the testimony so taken shall have the same force as if taken before the court or clerk.”

Thus it would seem that the proof required to probate a will in the first instance goes not only to the formal execution of the will, but also to the mental condition of the testator as well. In other words, the proof must show that the person falls within the class authorized to make wills, i. e., those of sound mind, as classified by sections 535 and 536, Revised Statutes 1909.

If the statutes place this onus or burden upon the proponents in the probate court, as they clearly do, then per force of the same statutes it remains there in the circuit court, because a will contest under our statute is but the probating or rejecting of a will. Such to me seems a sufficient reason for our rule. That the rule in Missouri is as stated in the instruction attacked in this case, has been conceded by text-writers. In 1 Underhill on the Law of Wills, section 86, it is said: ■

“In Michigan, Maine, Missouri and Vermont, the courts hold that- the burden of proof to show capacity is upon him who propounds the will for probate, and that it is not met by making out a prima-facie case, but remains upon him throughout the trial. In some cases the courts which hold that the burden of proof is upon the proponent throughout, based upon the theory that there is a difference in the mode of proof which is required in the case of the probate wills and that cequired in the case of an instrument inter vivos.”

It is safe to say that in every Missouri case when the question of where the burden qf proof rested was the crux of the case upon appeal, we have always held that the jury, as to mental capacity, should be told that the burden was iipon the proponents of the will, throughout the whole casé, to show mental capacity. With this rule we are satisfied, and shall not depart therefrom now. The instruction given for plaintiffs declared the law.

IY. The fifth instruction given at the instance of the plaintiff is sharply criticized. This instruction reads:

“The court instructs the jury that in determining the issue of sufficient soundness of mind or testamentary capacity, possessed by the testator, to make a y011 are instructed that if a person has not mind and memory enough to understand the ordinary affairs of life, the value, extent, and nature of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessity, and has not active memory enough to retain all these facts in his mind long enough to have this will prepared, he has no power to dispose of his property by will.”

The clause objected to is “to understand the ordinary affairs of life.” Defendants say this is too broad. We do not think so. If a person hasn’t sufficient intelligence to understand the ordinary affairs of life he should not be permitted to make a will by which estates, either large or small, pass. The law graciously allows the disposition of property by will, because the owners thereof may have good and sufficient reasons for diverting it from the channels fixed by the Statutes of Descent and Distributions. But this method of conveying property must be understandingly done. It cannot be done by a befogged and clouded mind, and for that reason the statute only authorizes a person of sound mind to make a will. One who does not have mind enough to comprehend and understand the ordinary, as distinguished from the intricate and complicated affairs, of life, has not that degree of mentality requisite for the making of a will. ' This test as to mental capacity was approved by Lamm, P. J., in Crum v. Crum, 231 Mo. l. c. 638, whereat, among other cases, he cites the exhaustive opinion of the Indiana court in Bower v. Bower, 146 Ind. l. c. 398 et seq. Division Two of this court lent its endorsement to this test of mental capacity in an opinion by Paris, J., in Naylor v. McRuer, 248 Mo. l. c. 462. Thus both divisions- of this court have recently approved the test of mental capacity fixed by this instruction numbered 5 for plaintiffs, and we see no reason to depart from these cases. Counsel cites us to no cases condemning such a test, and we still think the rule announced in the Crum case, supra, is well grounded.

Y. Complaint is made of the following instructions :

“The court instructs the jury that under the law as it existed in 1859 and 1860, it was not required that a person be adjudged insane by any court or tribunal in order that he be placed in the insane asylum, but might be sent as private patient upon the certificate of two physicians. ’ ’

As an abstraction the instruction properly declares the status of the law at that time. [R. S. 1855, p. 223.] It was abundantly shown that deceased was taken to-the asylum at Pulton and remained there for over a year. Under such circumstances the instruction would at least be harmless. The fact is that tins case might b-e tried fifty times, and in our judg there would be fifty verdicts against this will. This instruction evidently did the defendant no harm. What we have said as to instruction number 3, supra, applies with equal force to the harmless effect of instruction number 4, which is criticized. We doubt whether there is error in either of these instructions, but even if there is technical error, it is not such as affected the rights of the parties.

In my limited, experience I have never read a will casé wherein the judgment of the jury was so righteously wrought as in this case. Let the judgment be affirmed.

This case coming into Banc on a dissent, on a new hearing this, the divisional opinion of Graves, J., is adopted as the opinion of the Court. Woodson, Walker and Paris, JJ., concur; Brown, J., concurs in a separate opinion; Lamm, C. J., does not sit; Bond, J., dissents for reasons given in his dissenting opinion in Turner v. Anderson, 260 Mo. 1.

BROWN, J.

I concur in the views of brother Graves as expressed in the majority opinion. ■ However, I do not approve the form of instruction number 5 given at the request of plaintiffs. In the aforementioned instruction testator is required to be able to understand the “capacity and necessity” of those who are the natural objects of his bounty. I do not understand the law to be that anyone is rendered ineligible to take under a will because he is deficient mentally or physically, nor do I believe that a testator is bound to know the “necessity” of those who are the natural objects of his bounty. If the testator’s mind is strong enough to make a valid.will he may give to those who ■have property and withhold his bounty from those who need it most.

That part of instruction number 5 referred to in concurring opinion is not criticised by appellants, and was not relied npon by them, in tbeir brief as a ground for reversal. I do not understand how it could have been harmful to appellants, under the facts of this particular case, but I can imagine cases where it might prove harmful, and this criticism is advanced to discourage its use in will contest cases.


author: WOODSON, J.

text:
    THE STATE ex rel. S. J. CLARK et al. v. JOHN P. GORDON, State Auditor.
    In Banc,
    November 17, 1914.
    1. CONSTITUTIONAL LAW: Title: Consolidated School Districts. The title of an act which is, “An act to provide for the organization of consolidated schools and rural high schools and to provide State-aid for such schools,” does not contain two subjects, and does not violate section 28 of article 4 of the Constitution. It but deals with two phases of the same subject, namely, the organization of school districts and State-aid thereto, but in its entirety relates to but one subject.
    2. -: State-Aid: Appropriation: Aided by Other Acts. An act which attempts to grant State-aid to consolidated schools and rural high schools and provides that, when certain conditions have been complied with, certain sums of money shall be paid to the district out of the State Treasury, and that the State “shall make adequate appropriations for Carrying out” said provisions, must be read in connection with the biennial school appropriation bill; and if, when that is done, both together constitute a “regular appropriation made by law,” the act will not be held to be violative of section 43 of article 4 oi the Constitution.
    3. -:--: Grant of Public Money. The clause of the Constitution (Sec. 46, art. 4) that prohibits the Legislature from making any grant of public money “to any individuals, municipal or other corporation,” does not have any reference to corporations belonging wholly to the State, and does not prohibit the grant of State aid to consolidated schools or rural high schools.

      4. -: -: -: Ordinary School Moneys. Sections 2 and 6 of article 4 of the Constitution are applicable to the ordinary school funds to be distributed to the ordinary public schools, and not to these funds which the State may specially appropriate to other schools.
    5. -:-: General Revenue: Any Public Purpose. General revenue, collected by the State, by taxation, from all parts thereof, is not the private property of any county or school district, but is the property of the State, and may be appropriated and used for any governmental purpose which the Legislature deems wise; for instance, it may be used in aid of the establishment and maintenance of consolidated schools or rural schools, whose organization the Legislature has authorized.
    6. CONSOLIDATED SCHOOLS: Power to Issue Bonds: Found In Other Acts. The Act of 1913 providing for the organization of consolidated school districts for elementary and .high schools does not in so many words authorize such a district to issue bonds; but the act deals with the general subject of public education, and should be considered a part of the general school laws pertaining to schools of their class, such as Sec. 10777, R. S. 1909, and when that is done such districts have authority to issue bonds for the purposes authorized by those general laws.
    Mandamus.
    Writ allowed’.

      Boyd Dudley and Bowersock) Ball & Book for relators.
    (1) The act relates to but one subject, namely, consolidated school districts, and therefore does not violate section 28 of article 4 of the State Constitution. State v. Miller, 45' Mo. 497; Ewing v. Hoblitzelle, 85 Mo. 70; State ex rel. v. Miller, 100 Mo. 444; State v. Morgan, 112 Mo. 212; State ex rel. v. Bronson, 115 Mo. 275; St. Louis v. Weitzel, 130 Mo. 614; State v. Bixman, 162 Mo. 16; Elting v. Hickman, 172 Mo. 251; State v. Doering, 194 Mo. 408; O’Connor v. Transit Co., 198 Mo. 633; State ex rel. v. D'elmar Club, 200 Mo. 56; State v. Brodnax, 228 Mo. 53; State ex rel. v. Williams, 232 Mo. 75. (2) Sections 7 and 8 of the act, when read in conjunction with the biennial school appropriation bill, constitute “a regular appropriation made by law,” and therefore do not violate section 43 of article 4 of the Constitution. Campbell v. Board, 115 Ind. 591. But even if sections 7 and 8 of the act are invalid, the rest of the statute can stand alone. State ex rel. v. Taylor, 224 Mo. 474; State ex rel. v. Gordon, 236 Mo. 170; State ex rel. v. St. Louis, 241 Mo. 246. (3) The act does not constitute a grant of public revenue to any individual or corporation, and so does not violate section 46 of article 4 of the Constitution. Sec. 10822, R. S. 1909. (4) Consolidated school districts organized under the act in question have the power to issue bonds. Sec. 10777, R. S. 1909. (5) The officers of the school district whose bonds are in question, had power to issue the bonds when they so acted. There is a strong presumption that the act is constitutional. State ex rel. v. St. Louis, 241 Mo. 247.

      John T. Barker, Attorney-General, and Thomas J. Higgs) Assistant Attorney-General, for respondent.
    (1) The act in question is in violation of section 28, article 4, of the Constitution, in that the title contains two subjects: First, the organization of consolidated schools and rural high schools, and, second, the granting-of State aid therefor. State ex rel. v. Gordon, 223 Mo. 17. (2) The act in question is in violation of section 43 of article 4 of the Constitution of Missouri, in that sections 7 and 8 of said act attempt to grant money as aid to said school districts, when as a matter of fact there was no appropriation by the Legislature of such money. The Legislature never - intended these sections to appropriate any moneys whatsoever, but the appropriation was to be made at a separate and distinct time, by a separate and distinct act. There is no attempt to appropriate or set aside a specific sum or fund from which said State-aid could be paid as provided by paragraph 7 of section 43 of article 4 of the Constitution. State ex rel. v. Henderson, 160 Mo. 213. This court makes a clear distinction between an appropriation and a duty to appropriate. If the appropriation was not made the whole act falls, as the State aid was the inducement for the passage of the act and the formation of the district. State ex rel. v. St. Louis, 241 Mo. 231. (3) The act in question is unconstitutional arid in violation of the provisions of section 46 of article 4 and article 9, and more particularly sections 2 and 6 of said article 9 of the Constitution. (4) The act approved March 14, 1913, does not confer upon or give authority to any consolidated school district organized thereunder and in accordance therewith to issue any bonds whatsoever in manner and form as alleged in relators’ petition for writ of mandamus.
   WOODSON, J.

This is an original proceeding in mandamus, instituted in this court by the relators,' the directors of Consolidated School District No. 1 of Daviess county, against John P. GHordon, State Auditor, to compel him to register and certify certain bonds of the district issued by it under section 10777, Revised Statutes 1909.

No question is raised as to the sufficiency of the pleadings, the proper formation of the district, the election of the directors or the regularity of the issuance of the bonds.

The sole questions here presented by respondent challenge the constitutionality of the Act of the Legislature of 1913, Laws 1913, pp. 721 to 725, under which the school district was organized.

Said act provides for the organization of consolidated schools and rural high schools, and provides State aid for such schools, with an emergency clause.

The act consists of. nine sections and is found in Laws 1913, on pages 721 to 725*, and it reads as follows :

“Section 1. Consolidated district for elementary and high school ma-y be formed — The qualified voters of any community in Missouri may organize a consolidated school district for the purpose of maintaining both elementary schools and a high school as hereinafter provided. When such new district is formed it shall be known as consolidated district No. - of --county, and all the laws applicable to the organization and government of town and city school districts, as provided in article 4, chapter 106, of the Revised Statutes of Missouri, 1909, shall be applicable to districts organized under the provisions of this act.

“Sec. 2. Consolidated district — area and enumeration of. — No consolidated district shall be formed under the provisions of this act unless it contains an area of at least twelve square miles or has an enumeration of at least two hundred children of school age: Provided, that no district formed under the provisions of this act shall include within its territory any town or city district that at the time of the formation of said consolidated district has, by the last enumeration, two hundred children of school age.

“Sec. 3. Petition to form consolidated district filed with ivhom^-duties of county school superintendent — meeting—organization of. — When the resident citizens of any community desire to form a consolidated district, a petition signed by at least twenty-five qualified voters of said community shall be filed with the county superintendent of public schools. On receipt of said petition, it shall be the duty of the county superintendent to visit said community and investigate the needs of the community and determine the exact boundaries of the proposed consolidated district. In determining these boundaries, he shall so locate the boundary lines as will, in his judgment, form the best possible consolidated district, having due regard also to the welfare of adjoining districts. The county superintendent of schools shall call a special meeting of all the qualified voters of the proposed consolidated district for considering the question of consolidation. He shall make this call by posting within the proposed district ten notices in public places, stating the place, time and purpose of such meeting. At least fifteen days’ notice shall be given and the meeting shall commence at two o’clock p. m. on the date set. The county superintendent shall also post within said proposed district five plats of the proposed consolidated district at least fifteen days prior to the date of the special meeting. These plats and notices shall be posted within thirty days after the filing of the petition. The county superintendent shall file a copy of the petition and of the plat with the county clerk and shall send or take one plat to the special meeting. The special meeting shall be called to order by the county superintendent of schools or some one deputized by him to call said meeting to order. The meeting shall then elect a chairman and a secretary and proceed in accordance with section 10865, Revised Statutes 19091. The proceedings of this meeting shall be certified by the chairman and the secretary to the county clerk or clerks, and also to the county superintendent or superintendents of schools of all the counties affected. If the proposed consolidated district includes territory lying in two or more counties, the petition herein provided for shall be filed with the county superintendent of that county in which the majority of the petitioners reside. The county superintendent shall proceed as above set forth, and in addition shall file a copy of the petition and of the plat with the county clerk of each county from which territory is proposed to be taken.

“Sec. 4. Transportation — may be voted on. — The question of transportation of pupils may be voted upon at the special meeting above provided for, if notice is given that such a vote will be taken. If transportation is not provided for in any school district formed under the provisions of this act, it shall then be the duty of the board of directors to maintain an elementary school within two and one-half miles by the nearest traveled road of the home of every child of school age within said school district: Provided further, that if transportation is not provided for, any consolidated district may, by a majority vote at any annual or special meeting, decide to have all the seventh grade and the eighth grade work done at the central high school building, provided fifteen days ’ notice has been given that such vote will be taken.. Such seventh and eighth grade work at the central school may be discontinued at any time by a majority vote taken at any annual or special meeting.

“Sec. 5. Parts of districts remaining after consolidation-procedure. — Whenever, by reason of the formation of any consolidated school district, a portion of the territory of any school district has been incorporated in the consolidated district, the inhabitants of the remaining parts of the districts shall proceed in accordance with section 10882, providing for the annexation to city school districts, and the consolidated district shall be governed by the same provisions as govern city school districts in such cases. The inhabitants of the remaining parts of the districts may also annex themselves to any other adjoining district or districts by filing a petition asking to be so annexed with the clerk or clerks of the district or districts to which they desire to be annexed, and by also filing a copy of all such petitions with the clerk of the county court.

“Sec. 6. Settlement of property — original districts to continue — boio long. — Whenever any consolidated district is organized under the provisions of this act, the original districts shall continue until June 30th following the organization of said consolidated district, and at that time all the property, money on hand, books and papers of the school districts whose schoolhouse sites are included within said consolidated district shall, by the officers of aforesaid districts, he turned over to the board of directors of the consolidated district, and also all bonds outstanding against the aforesaid districts shall become debts against the consolidated district. The division of property and money on hand, in case school districts are divided by the formation of any consolidated district, shall be governed by sections 10839 and 10840'.

“Sec. 7. State aid — token granted — how.—Whenever a district organized under the provisions of this act has secured a site of not less than five acres for the central high school building of said district and has erected thereon a school building, suitable for a central school and containing one large assembly room for the meeting of the citizens of the district and has installed a modern system of heating and ventilating, the State shall pay one-fourth of the cost of said building and equipment, provided the amount thus paid by the State shall not exceed two thousand dollars ($2000) for any one district. The State of Missouri shall, out of the general revenue fund of the State, make adequate appropriation for carrying out the provisions of this section, and the money due any district shall be remitted by the Auditor to the county treasurer of the proper county on receipt of a certificate from the State Superintendent of Public Schools stating that the conditions herein prescribed have been complied with.

“See. 8. Special State aid granted — when—how. —When a consolidated district has been organized as herein provided and has provided adequate buildings for school purposes, the State shall grant a special aid of twenty-five dollars ($25) per year for each square mile or fraction thereof in the area of said district: Provided, the district maintains an approved high school of at least the third class and gives an approved course of at least one year in agriculture; and provided further, that no district shall receive more than eight hundred dollars per year under the provisions of this section. The State of Missouri shall, out of the general revenue fund of the State, make adequate appropriation for carrying out the provisions of this section. The money herein provided shall become due on June 30th of each year, and the district clerk shall, on or before June 30th, make application to the county clerk for the aid due his district and the county clerk shall certify these applications to the State Superintendent of Public Schools, who shall approve them and certify to the State Auditor the amount due each district under the provisions, of this act. The State Auditor shall draw his warrant on the State Treasurer for the said amount and remit to the treasurer of the proper county.”

. Section 9 is the emergency clause and need not be set forth.

I. The first objection urged against the constitutionality of the act under consideration relates to its title. It is claimed that it violates section 28 of article 4 of the Constitution of 1875', in this “that the title contains two subjects: First, the organization of consolidated schools and rural high schools; and, second, the granting of State aid thereto.”

This objection is without merit. The act relates to but one subject, namely, consolidated and rural high schools. While it deals with two phases of the same subject, the organization of the districts and their financial aid by the State, yet that fact constitutes no constitutional objection to the act, when it as an entirety relates to but one subject.

This has been so frequently declared by this court it would be a useless waste of time and labor to more than briefly refer to some of those cases. .

In Ewing v. Hoblitzelle, 85 Mo. 64, l. c. 71, this court said: “Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title, the statute is valid.”

To the same effect are the following cases: State ex rel. v. Vandiver, 222 Mo. 206, l. c. 219; State v. Miller, 45 Mo. 495, 497; State ex rel. v. Miller, 100 Mo. 439, 444; State v. Morgan, 112 Mo. 202, 212; State ex rel. v. Bronson, 115 Mo. 271, 275; St. Louis v. Weitzel, 130 Mo. 600; 614; State v. Bixman, 162 Mo. 1, 16; Elting v. Hickman, 172 Mo. 237, 251; State v. Doerring, 194 Mo. 398, 408; O’Connor v. St. Louis Transit Co., 198 Mo. 622, 633; State ex inf. v. Jockey Club, 200 Mo. 34, 56 ; State v. Brodnax, 228 Mo. 25, 53; State ex rel. v. Williams, 232 Mo. 56, 75.

This question is therefore ruled against the respondent.

II. The second objection made to the validity of the act is stated in this language: “The act in question is in violation of section 43 of article 4 of the Constitution of the State of Missouri, in that sections 7 and 8 of said act attempt to grant money as aid to said school districts, when as a matter of fact there was no appropriation by the Legislature of such money. ”

This objection is also untenable. ' For when we read said sections 7 and 8 in connection with the biennial school appropriation bill, which we must do, it constitutes “a regular appropriation made by law,” and does not therefore do violence to said section 43 of the Constitution.

This was the view the Supreme Court of Indiana took of a similar statute in the case of Campbell v. Board of Commissioners, 115 Ind. 591. There the Legislature appropriated a certain fund for the purpose of erecting a monument to the memory of the soldiers and sailors of that State. A question arose as to the right' of the commission to use the money so appropriated for the monument, in the payment of the incidental expenses connected therewith. The court held that the entire appropriation had to be used on the monument proper, and that by reading that statute in conjunction with the general revenue laws of the State, the Auditor was authorized to draw his warrant against the general funds, with which to pay said incidental expenses.

By parity of reasoning we must read said sections 7 and 8 in connection with said general appropriation bill for school purposes; and by so doing, we are of the opinion that the proper appropriation was duly made. '

We, therefore, rule this objection against the respondent.

III. It is next contended that said act is unconstitutional because it violates “section 46 of article 4 and article 11 and more particularly sections 2 and 6 of said article 11 of the Constitution.”

Section 46 prohibits the Legislature from making any grant, etc., “to any individual, association of individuals, municipal or other corporation.” This section has no reference to corporations belonging wholly to the State, organized wholly for governmental purposes under public laws and governed by officers duly elected or appointed according thereto; for instance, the various eleemosynary institutions of the State, State University, normal schools, public schools, drainage and road districts, etc. This has been expressly so held by this court in the case of State ex rel. v. Taylor, 224 Mo. 393, l. c. 468.

Sections 2 and 6 of said article are applicable to the ordinary school funds to be disbursed to the ordinary public schools of the State, and not to those funds which the State specially appropriates to the University, normal schools and those of the character here under consideration; otherwise, State aid could not be rendered to the University or to the various normal schools of the State. This contention is without merit.

It has been further suggested in this connection that the general revenues of the State, collected, as they are, from all parts thereof, cannot lawfully be expended for the purposes of purchasing grounds, constructing buildings and paying teachers in the various local districts formed or to be formed under the act in question. In my opinion this suggestion is also without merit, for the reason that the State, at the present time and for many years previous, has been collecting taxes from all over the State and applying them to the uses of the local district schools, normal schools and the University. The two latter are supported solely by taxes so collected, and the former very largely from the same source, amounting to many hundreds of thousands of dollars. This is upon the theory that money acquired by the State or county by taxation is not the private property of any county or school district, but is the property of the State, which may be used for any public purpose the Legislature may deem’wise.

In discussing this question this court, in Banc, unanimously held in the case of State ex rel. v. Taylor, 224 Mo. 393, l. c. 468, that:

“And the statute authorizing the county to pay out of its revenues claims of this character against such district does no violence to any constitutional provision to which our attention has been called.

“It is well settled law, that money acquired by a county from the taxation of its citizens is not the private property of the county, and an act of the Legislature directing such county to appropriate a portion of its funds so acquired to pay a part of the public expenses of a city within its limits is not an appropriation of public funds to private use, and is not the taking of private property for the public use without just compensation. [State ex rel. v. St. Louis County, 34 Mo. 546.]

“And in the case of the City of Hannibal v. Marion County, 69 Mo. 571, this court held that the Legislature had the authority to say what shall be done with the taxes levied and collected from any. county. There an act of the Legislature required the county to pay to the city out of the general revenue of the county the sum collected from the city for bridge tax and poll tax, and was not unconstitutional.

“The rule announced in these cases clearly applies to the facts of this case. This district is as much a public corporation as were the cities of St. Louis and Hannibal; and the taxes collected by Chariton county were no more 'the private property of the county in this case than were-the revenues involved in those cases the private property of Marion and St. Louis counties.

“If the Legislature had the authority to apply the revenues of those counties for the purposes therein stated, then for stronger reasons it had the authority to apply the revenues of Chariton county for the purposes herein stated, because the drainage district in question is not independent of the county, but, upon the other hand, it owes its being to and is subject to its authority and control in the same sense in which townships of a county are subject to its control. Tt does not even have the independent government like townships have under the township organization. The county court administers its entire affairs, and the county clerk keeps its records.

“The cases before cited and the views expressed are not in conflict with section 46 of article 4 of the Constitution, as contended for by relators. That section reads as follows: ‘The General Assembly shall have no power to make any grant, or to authorize the making of any grant of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever: Provided, that Ibis shall not be so construed as to prevent the grant of aid in a case of public calamity. ’

“That section of the Constitution does not prohibit the Legislature from making use of an individual or a corporation as a means through which it may .apply appropriations to lawful purposes.

“In the case of State ex rel. v. Seibert, 123 Mo. 424, it was held that a private corporation or individual may be the recipient of funds raised by taxation provided the use to which they are to be devoted is a public one. And in the case of State ex rel. v. City of St. Louis, 174 Mo. 125, it was also held that an ordinance of the city appropriating the expenses that a policeman incurred while in the performance of his duty as such officer, in removing a nuisance from a public street, as expressly required by law, was not a donation of public money to an individual in violation of said constitutional provision.

“ While this court in the case of State ex rel. v. County Court, 142 Mo. 575, held that an act of the Legislature transferring county taxes to the town of Kirkwood for street purposes was a violation of said constitutional provision and void for that reason, yet that opinion was based upon the fact that the county in that case had no concern or control whatever over the streets of the town. In that ease the streets were vested in the town, and its charter gave-it the exclusive jurisdiction of and control over its streets.

“But not so with these drain ditches. They are acquired by donation, purchase or condemnation, and the titles there are vested either in the drainage district or the county for the use of the public, and under the exclusive charge and control of the county court. The title to the same is not vested in the landowners of the district. That is made clear by the fact that they may be and often are acquired by condemnation. The landowners by virtue of their ownership of the lands embraced-within the district have no authority over the ditches proper. It is true the Drainage Act imposes' the duty upon the respective landowners to keep the ditch clear of all obstructions where it passes along or through their lands, but that is not because they have any interest in or authority as individuals over the ditch; but being public aqueducts, the Legislature, through the exercise of the police power; imposes the duty • upon them to keep them free from obstructions upon the same principle and authority that it compels the property-owner to keep the sidewalk in front of his property free from snow and other obstructions.

“Nor has the drainage district itself any authority or control over the ditches, nor does the law require it to keep the ditches free from obstructions.' That is obvious from the fact that it has no officers or means by which it could do so. It is without autonomy, and, as before stated, the exclusive regulation and control over these ditches is vested in the county court, and the Drainage Act imposes the duty' upon it to see that they are constructed, maintained and kept free from all obstructions.

“We have discussed these matters somewhat extensively for the prupose of showing that they are not only public corporations, but that they are under the sole and exclusive charge and control of the county court, and that the money the court is- authorized to expend by said sections 8299 and 8306 is expended for a public and not a private use.

“The very case cited and relied upon by counsel for relator, State ex rel. v. County Court, supra, recognizes the very distinction we have here drawn, and in express terms distinguishes that case from the cases of State ex rel. v. Seibert, and City of Hannibal v. County of Marion, supra, which we have before cited and discussed.”

Prom these observations it is seen that so long as the revenues expended are used for public purposes, that is, for purposes which are governmental in character, the Legislature has the constitutional authority to authorize their expenditure, whether they are expended through the agency of a purely public corporation or a municipal corporation, which acts in a dual capacity — for the public proper, and for itself in its private capacity. These views are firmly supported by numerous authorities in this and other States.

IY. It is finally insisted that the Act of 1913 does not confer authority upon consolidated school districts organized thereunder to issue any bonds whatsoever. '

Literally speaking this insistence is true, but when we take into consideration the fact that the Legislature was dealing with the general education of its citizens and authorized this higher class of instruction, it is apparent that it intended that the general school laws of the State, in so far as applicable, should be read in connection with this class of schools, in order to carry out the general design and intention of the legislative body.

The Legislature knew that this class of schools had no school property — lands, buildings or other instrumentalities — with which to carry on the school work, no more than the ordinary public school has when first organized, without resort should be had to borrowing money for those purposes. That being true we must look at the general school laws of the State regarding this subject, and read it in connection with this incomplete act; and by so doing, we find that section 10777, Revised Statutes 1909, provides for the issuance of bonds for the purposes' for which those in controversy were issued.

In the discussion of the subject of the construction of statutes in pari materia this court in the case, of Sales v. Barber Asphalt Paving Co., 166 Mo. l. c. 677 to 678, held, and quoted with approval from Mr. Sutherland,.the following language:

“ ‘All consistent statutes relating to the same subject, and hence briefly called ■ statutes in pari materia, are treated prospectively and construed together as though they constituted, one act. This is true whether the acts relating to the same subject were passed at different dates, separated by long or short intervals, at the same session or on the same day.’ [Sutherland, Stat. Construct., sec. 283.]

“And ‘A statute must be construed with reference to the system of which it forms a part. And statutes on cognate subjects may be referred to, though not strictly in pari materia. ’ [Id., sec. 284.]

“Further on, the learned author discussing and discoursing upon the same subject, says: ‘Where enactments separately made are read in pari materia, they are treated as having formed, in the minds of the enacting body, parts of a connected whole, though considered by such a body at different dates, and under distinct and varied aspects of the common subject. Such a principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws, and connect them in a symmetrical system. Such statutes are taken together and construed as one system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one •spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and so far as still in force brought into harmony, if possible, by interpretation, though they may not refer to each other even after some of them have expired or been repealed.’ [Ib., sec. 288.] ” »

This language was also approved by this court in the cases of State ex rel. v. Standard Oil Co., 218 Mo. l. c. .355, and State ex rel. v. Patterson, 207 Mo. l. c. 144.

In the case of State ex inf. v. Amick, 247 Mo. 271, l. c. 290, this court in discussing the samé subject quoted approvingly from the case of Humphries v. Davis, 100 Ind. l. c. 284, the following:

“In the case of Humphries v. Davis, 100 Ind. l. c. 284, the Supreme Court of Indiana, speaking through Elliott, J., said: ‘A statute is not to be construed as if it stood solitary and alone, complete and perfect in itself, and isolated from all other laws. It is not to be expected that a statute which takes its place in a general system of jurisprudence shall be so perfect as to require no support.from the rules and statutes of the system of which it becomes a part, or so clear in all its terms as to furnish in itself all the light needed for its construction. It is-proper to look at other statutes, to the rules of the common law, to the sources from which the statute was derived, to the general principles of equity, to the object of the statute, and to the condition of affairs existing when the statute was adopted. [Citing authorities.] . . . “Construction has ever been a potent agency in harmonizing the operation of statutes with equity and justice.” Statutes are to be so construed as to make the law one uniform system, not a collection of divers and disjointed fragments. When this principle of construction is adopted, “an enactment of to-day has the benefit of judicial renderings extending back through centuries of past legislation.” [Bishop, Written Laws, sec. 242b.] “A statute,” says the author just referred to, “must be construed equally by itself and by the rest of the law. The mind of the interpreter, if narrow, will stumble. ” “ The completed doctrine resulting from a bringing together of its parts, is, that all laws, written and unwritten, of whatever sorts and at whatever different dates established, are to be construed together, contracting, expanding, limiting and extending one another into one system of jurisprudence as nearly harmonious and rounded as it can be made without violating unyielding written or unwritten terms.” [Bishop, Written Laws, secs. 113a, 86.]’ ”

This act is progressive and in keeping with the forward movement of the State and country at large — ■ bringing home better schools and higher grades of instruction, which the ordinary public schools do not teach, and are incapable of teaching on account of the lack of means to construct appropriate buildings and to employ competent teachers. By this scheme of the Legislature thousands of our children can and will be instructed in the higher branches of education not taught in the ordinary school, who. are unable to go to city high schools, colleges and universities away from home.

The design of the Legislature is good and wise, and before the act conferring this benefieenee upon the youth of the country should be declared invalid, the reasons therefor should be so clear and unanswerable that no reasonable doubt should exist as to its unconstitutionality; and after a careful reading of the briefs of the respective parties and having investigated the authorities cited, we are of the opinion that no such reason has been pointed out.

But upon tlie contrary we are firmly of the opinion that the act is valid; and that the peremptory writ of mandamus prayed for should issue.

It is so ordered.

All concur, except Lamm, G. J., not sitting.