author:
ROY, 0.
      GRAVES, J.

text:
    THE STATE v. THOMAS GOULD, Appellant.
    In Banc,
    November 17, 1914.
    1. INFORMATION: “With a Certain Deadly Weapon.” The use of the word “with” before the words “a certain deadly weapon,” ■ in an information charging assault with intent to kill, does not vitiate the information.
    2. ASSAULT WITH INTENT TO KILL: Self-Defense: Evidence. After an altercation between defendant and W in a saloon W left and his hat was thrown after him into the street. When W returned with his brother to get his hat, as he says, defendant and his partner came out of the saloon with pistols, and defendant, after reviling the brothers, shot at W but missed him. W threw a rock that struck defendant, and then ran, whereupon defendant shot him twice in the hip. Defendant, however, testified that W struck him with the rock and shot at him before he fired. Held, that the question whether defendant acted in self-defense, or, with malice, assaulted W with intent to kill him, was for the jury.
    3. JEOPARDY: Jury Sworn Before Arraignment. Defendant in a criminal case was not twice put in jeopardy where, after the jury had been sworn, it was discovered there had been no arraignment, and after he had then been arraigned and refused to plead the trial proceeded to his conviction.
    4. NONPREJUDICIAL ERROR: Refusal to Plead at Arraignment: No Entry of Plea: Appeal. The failure to enter of record a plea of not guilty where, after the jury had been sworn, defendant was arraigned and refused to plead, stating that he stood on his “constitutional right to a discharge” as having been already placed in jeopardy on the same charge, was an error not prejudicial to the defendant on the merits, and therefore (R. S. Í909, sec. 5115) not warranting reversal. [Concurring opinion .by GRAVES, J., distinguishing State v. O’Kelley, 258 Mo. 345.]
    5. DATE OF CRIME: Instructions: Information and Proof. Where the jury heard the information read, charging that the offense occurred December 19, 1912, and the evidence on both sides showed its occurrence on that date (a time within three years of the filing of the information), an instruction was not erroneous which laid the crime as within three years next before the filing of the information but gave no date.
    6. ASSAULT WITH INTENT TO KILL: Malice: Instructions: Verdict. Where the information charged defendant with assault with intent to kill, with malice, and the jury found him guilty as charged, an instruction which told the jury that if they found the facts as stated therein they should find defendant guilty of assault with intent to kill, erred, if at all, in favor of defendant in not requiring the jury to specify in their verdict that the assault was made with malice.
    7. HOLIDAYS: Valid Sentence and Judgment. Judgment and sentence entered on a legal holiday other than Sunday are valid.
    Appeal from St. Francois Circuit Court. — Now. Peter H. Pluck, Judge.
    Akfikmed.

      B. II. Boyer for appellant.
    (1) The swearing of the jury the first time caused jeopardy to set in and hence defendant’s motion for a -directed verdict should have been sustained. Ex parte Snyder, 29 Mo. App. 260: (2) Instruction 1, given by the court was erroneous as not properly dedaring the law of the case to the jury. It is in conflict with all the other instructions in the case and is misleading, confusing and resulted in the verdict rendered herein. .Said instruction is at variance with the information and wholly improper, especially for the following reasons: Because said instruction directs the jury to find the defendant guilty if they find that ‘ ‘ at any time within three years, next, before the filing of the information” he did certain things, and yet fails to inform the jury of the date laid in the information, or the date of the filing thereof. Because said instruction directs the jury to find defendant “guilty of assault with intent to kill” if certain facts were found and yet failed to tell the jury of what degree of said crime they should find him guilty. Because said instruction failed to tell the jury what it takes to constitute the crime of assault with intent to kill with malice aforethought, or that they found the necessary facts to find the defendant guilty of said crime as he stands charged in the information, as it should have done. Because said instruction and in fact all the instructions given in the case, submit the case to the jury upon the theory that there was a shooting at when the information charges a shooting. “The purpose of instructions is to inform the average layman of the jury of a clear and plain view of the legal principles applicable to the case, by which he may be guided to a just result.” Blanton v. Dold, 1091 Mo. 64; State v. Turlington, 102 Mo. 642; State v. Lewis, 118 Mo. 79; State v. Bryant, 55' Mo. 3091. “Issues not pleaded should not be submitted by instruction. ’ ’ Fair-grave v. Moberly, 29 Mo. App. 141. “An instruction which is broader than the indictment should not be given.” State v. Smith, 1191 Mo. 439. “As to degree of crime there must be an instruction.” State v. Wyatt, 50 Mo. 309. (3) The verdict is not in proper form and will not support a judgment. There is a great line of cases in this State holding that where there are two or more charges in the same count of the information, such as in burglary and larceny, that there must be a separate finding on each count or charge if a conviction on each or either and that, a general finding will not suffice. State v. McGee and McGraw, 181 Mo. 315; State v. Jones, 168 Mo. 403; State v. Rowe, 142 Mo. 440; State v. Logan, 209 Mo. 402; State v. McCune, 209 Mo. 400; State v. Kelley, 206 Mo. 694; State v. DeWitt, 186 Mo. 67; and a great many other cases that might be cited. What would have been the result in this case if the jury should have returned the verdict they did but had assessed the punishment at imprisonment in the county jail for one year, or at a fine of one hundred dollars? (4) The motions for new trial and in arrest of judgment were overruled and, over the insistent protest of defendant, he was sentenced and judgment was passed and. pronounced by the court on May 30, 1913. May 30th is, by virtue of Sec. 6701, R. S. 1909, a legal or public holiday. If civil judgments and executions thereon are prohibited on public holidays, and yet men may be deprived of their lives or liberty on such a day, .then the constitutional inhibition against refusing to extend the equal protection of the law to all men is violated.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The cases of State v. Wilson, 172 Mo. 428, and State v. Baker, 216 Mo. 543, cited in appellant’s brief, if anything, sustain the information in the case at bar. Notwithstanding the statement in the appellant’s. brief, the information in this case does charge that “the said Thomas Gould . . . did shoot off, at, against and upon the said Charles Whaley,” and clearly alleges that the assault was committed by shooting. It is not necessary that the information should allege that the weapon was “had or held in his hand or hands,” as contended .by the appellant. (2) The verdict finds “the defendant guilty as he stands charged in the information.” This is a general verdict, and is proper in form and substance according to the decisions of this State. The information charged “assault with intent to kill with malice,” and the words “with malice aforethought” in the verdict are unnecessary in order that the verdict be valid as to the charge alleged, the verdict being a general verdict and finding the defendant guilty as charged. State v. Bishop,'231 Mo. 411; State v. Williams, 191 Mo. 205. Where the information charges but one offense, a general verdict is sufficient in form. State v. Gordon, 196 Mo. 185; State v. Stark, 202 Mo. 210; State v. Martin, 230 Mo. 691; State v. Richardson, 248 Mo. 574. In the case at bar the court instructed the jury in instruction 1 as to assault with intent to kill with malice and in instruction 2 as to assault with intent to kill without malice. The information charged assault with intent to kill with malice and the jury returned a general verdict finding the appellant guilty under instruction 1. (3) It is contended that instruction 1 is faulty in that it instructs the jury on the question of the Statute, of Limitations, using the words “at any time within three years next before the filing of the information, ’ ’ and does not set out the date on which the information is filed. There was no doubt in the evidence as to' the exact date of the shooting and the assault, the evidence on this point not being in conflict. The information and the oath thereto were read to the jury, and the date of the oath must be assumed to have been on the same date as the filing of the information. Although it is customary in instructions to state the date upon which the information is filed, yet no decision can be found which holds that the omission of the date renders the instruction faulty. On the contrary, this court has held that the information is proper in form. Patterson’s Instructions in Criminal Oases, sec. 85; State v. Washburn, 48 Mo. 240: It is contended that instruction 1 does not fully define “assault with intent to hill with malice.” The contention of the appellant in this regard is unfounded. There are no degrees of “assault with intent to kill with malice,” and the jury are fully directed in the second instruction as to “assault with intent to kill without malice” in the court’s instruction 2. The court might have added “as charged” after the words “assault with intent to kill,” but this was entirely unnecessary. State v. Tetrick, 199 Mo. 102; State v. Harris, 229 Mo. 423. (4) The record fails to show that a plea of “not guilty” was entered for the defendant by the court on defendant’s refusal to plead. The facts as they appear from the record and the bill of exceptions are such as to apprise the appellant fully of the charge against him. The appellant heard the charge read to him. There was evidently an announcement of ready in the case when it was called and every opportunity was given him to enter his plea. After the formal arraignment the appellant did- not object in any way to the failure of the court to enter the plea of record, and only did object at that time to proceeding with the trial for the reason there had been prior jeopardy. The case of State v. O’Kelley, 258 Mo. 345, squarely presents the necessity of a plea of guilty being en-. tered of record. However, the facts above stated, we believe, present a stronger example of an instance of waiver of the plea on the part of the defendant. It cannot be said that there was any prejudice to the substantial rights of the defendant on the merits, and we believe the Statute of Jeofails, Sec. 5061, R. S.1909, would clearly apply.
   ROY, 0.

Defendant was convicted of an assault with intent to kill with malice, and sentenced to three years in the penitentiary. The information so far as it is necessary to set it out charges that defendant “on the nineteenth day of December, A. D. 1912, at and in the county of St. Francois and State of Missouri, in and upon one Charles Whaley, feloniously, wilfully, on purpose and of his malice aforethought did make an assault; and the said Thomas Gould with a certain deadly weapon, to-wit, a revolving pistol loaded with gunpowder and leaden balls, then and there feloniously, wilfully, on purpose and of his malice aforethought did shoot off, at, against and upon the said Charles Whaley then and there giving' to the said Charles Whaley in and upon the body of him, the said Charles Whaley,- with the pistol aforesaid, two wounds, with the felonious intent then and there him, the said Charles Whaley, feloniously, wilfully, on purpose and of his malice aforethought to kill and murder.”

Defendant and Chris Iahn had been running a saloon at the town of Frankclay several years at the ' time of the alleged offense on December 19,1912. Mas-ton Whaley lived diagonally across the street from the saloon and conducted a “beer house” on the opposite side of the street almost opposite the saloon. Charles and Bert Whaley are his sons. On the night of the difficulty, Charles Whaley was in the saloon having a friendly time. The defendant spoke of a fight which had occurred between Luther Lawson and Bert Whaley, and said to Charles Whaley, “If I was as good a man as Lawson I wouldn’t be afraid of all the Whaleys put together.” Charles resented that statement and the defendant struck at him, knocking his hat off. Charles Whaley went out of the saloon and to his home, Iahn throwing his hat into the street after him. Charles Whaley told his brother Bert about what occurred, and they testified that Bert went for the hat, Charles following. The latter testified that the hat was six ox-seven feet from the saloon porch; that Iahn came out axxd said, “To hell with all of you. You all look alike to me, the whole Whaley family;” that Gould came out and said, “Get, you s-— of b — , I’ll kill you all,” then stepped off the porch and fired a shot at witness and missed him; that witness then threw a rock at Gould and ran; that Gould shot him twice in the left hip. He testified that he did not have any pistol. Bert Whaley testified that defendant shot at Charles Whaley before the latter threw the rock, and that after defendant was hit by the rock he shot twice more at Charles.

Defendant and Iahn both testified that they had pistols when they went out of the saloon. Iahn did not know whether Charles Whaley shot at defendant. The latter testified that Charles Whaley struck hiin in the mouth with a rock and shot at him, grazing the side of his head, before he shot at Charles. The- doctor testified that defendant had an injury to his mouth and a horizontal abrasion on the side of his head a half inch wide and an inch or an inch and a quarter long. Mas-ton Whaley testified that defendant fired the first shot before he was struck by the rock.

Iahn, Tinker and defendant testified that the mother of Charles Whaley was standing in the street in front of the saloon with a shot gun in her hand.

After the jury was sworn to try the case, it was discovered that defendant had not been arraigned. The court proceeded to arraign him when the following occurred:

“Mr. Boyer: If the court please, I object to any arraignment of the defendant at this time by the reading of the information to him, or in any other manner, for the reason that the jury has been sworn to try this cause and the defendant has been placed in jeopardy, and the defendant should have his liberty by the court directing this jury to return a verdict of not guilty.

‘ ‘ The Court: Let the objection be overruled. Read the information to the defendant.

“Mr. Boyer: Note our exception to the ruling of the court.”

Defendant was then arraigned and the following occurred:

“The Court (addressing defendant and defendant’s counsel): Are you guilty or not guilty?

“Mr. Boyer: Tour Honor, we decline to plead. We are standing on our constitutional right, to a discharge on the ground of having already been placed in jeopardy on the same charge.

“The Court: The defendant will please stand

up. Let the jury be resworn. (The defendant here rises.)

“Mr. Boyer: The court please, we desire to. object to the swearing of this jury again, because the defendant has once been placed in jeopardy by the swearing of the jury to try this cause. It is a violation against the right of the defendant, that the defendant cannot be placed twice in jeopardy on the same charge."

‘ ‘ The Court: The court will have to overrule the objection. Swear the jury, Mr. Clerk.”

The jury was then sworn the second time and the trial proceeded. At the close of the State’s evidence and again at the close of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence. It was refused.

Instruction 1 given by the court was as follows:

“The court instructs the jury that if you believe and find from the' evidence that defendant Thomas Could, in the county of St. Francois and State of Missouri, at any time within three years next before the filing of the information, feloniously, wilfully and on purpose and of his malice aforethought, did shoot at Charles Whaley with intent to kill said Charles Whaley, the jury will find defendant guilty of assault with intent to kill and assess the punishment at imprisonment in the penitentiary for not less than two years and not exceeding ten years. ” -

The verdict was as follows: “¥e the jury find the defendant guilty as he stands ■ charged in the information and assess his punishment at three years in the State penitentiary.”

I. Appellant contends that the use of the word “with” before the words “a certain deadly weapon” in the information vitiates the indictment. That objection was made to the same use of the word with in State v. Turlington, 102 Mo. l. c. 651. It was held that the grammar and rhetoric were bad, but that the use of such word did not prejudice the substantial rights of the defendant.

II. It is contended that the evidence shows that defendant shot in self-defense; and that the demurrer to the evidence should have been given. We think not. It is conceded that both Iahn and the defendant went out of the saloon with pistols. The defendant held his in bis hand. The evidence for the State is that defendant shot at Charles Whaley before defendant was struck with the rock or shot at by any one.

III. Appellant contends that the jury having been sworn before the arraignment, his jeopardy had begun and that he was entitled to his dis-change, and that the subsequent arraignment and swearing of the jury put the defendant a second time in jeopardy. The contrary was held in State v. Weber, 22 Mo. 321.

IV. When arraigned the defendant refused to plead but stated that he stood on “his constitutional right to a discharge on the ground of having already been placed in jeopardy on the same charge.” No entry was made in the-record of a plea of not gnilty. After what has been said in State v. O ’Kelley, 258 Mo. 345, we hold that a failure to enter a plea of not guilty is not prejudicial error. The statute says that upon a refusal to plead, a plea of not guilty should be entered. In other words, the statute provides that the record shall show what is not true. Conceding that a failure to obey the statute in that respect is error it certainly is not one which prejudiced the substantial rights of the defendant on the merits.

V. Fault is found with instruction 1 because it tells the jury that if they find that the defendant did certain things within three years before the filing of the information, they should fi11^ him guilty, without telling them of the date laid in the information, or the date of the filing of the information. The jury heard the information read. It charged that the offense occurred on December 19, 1912. The evidence on both sides shows that the difficulty in controversy was on that date. It was within three years of the filing of the information. The failure of the instruction to state the dates as contended for, in no way affects defendant’s rights and does not constitute error.

VI. It is said that instruction 1 tells the jury that if they found the facts as therein • mentioned they should find defendant guilty of assault intent to kill, without telling them to specify in the verdict that it was done with malice. If that omission was error, it was in favor of defendant, and he cannot complain. The jury did find him “guilty as he stands charged in the information” and that is sufficient. [State v. Bishop, 231 Mo. 411.]

VII. The fact that the judgment and sentence against defendant were entered on May 30, a legal holiday, does not invalidate the sentence an^ judgment. By section 1785-, Revised Statutes 1909, Sundays and other holidays are put on a par so far as the service of writs, process, warrants, orders and judgments is concerned. Such service is void. Section 3880', which prohibits the holding of courts on Sunday, does not, by its terms, include other holidays." In Bear v. Youngman, 19 Mo. App. 41, it was held that a judgment rendered by a justice of the peace on Thanksgiving day is not void under a statute which provides that a justice of the peace may hold court on any day except Sunday. It may be said that that case is not authority here. In Diesing v. Reilly, 77 Mo. App. l. c. 455, it was said: “We are not, however, aware of any rule forbidding the performance, of judicial duties on Christmas (twenty-fifth ■ of December), or the other holidays mentioned in section 8952, Revised Statutes 1889. That section merely prohibits the service of civil process, except in certain attachment cases, but a judgment rendered on one of the days mentioned in the statute is not void. [Bear v. Youngman, 19 Mo. App. 41.]

We agree with the latter case that there is no rule against the performance of judicial duties on legal holidays other than Sunday.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., on a new hearing in Banc, is adopted as the opinion of the court;

Lamm, G. J., and Woodson, Walker, and Brown, JJ., concur; Graves, J,, concurs in part and in result in a separate opinion in which Bond, J., concurs; Faris, J., dissents.

GRAVES, J.

I concur in the opinion of the learned Commissioner in this case. I place that concurrence on the ground that the omission to formally enter of record a plea of “not guilty” upon his refusal to plead, is a “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits” (R. S. 1909, see. 5115). This statute in my judgment covers this case. The Commissioner cites the recent case of State v. O’Kelley, 258 Mo. 345. As I gather it the decision in that case discussed two views as tending to uphold the doctrine that the absence of a plea of “not guilty” would not vitiate the proceeding. First, that the failure to enter such plea of record was a defect of record covered by section 5115, supra, and secondly, that the conduct of the defendant amounted to a waiver of the formal plea, and the entry thereof. We note this, because in the case at bar, it cannot be said that the defendant by his conduct waived anything. It will not do in this case to bottom the decision upon the doctrine of waiver, which was a potential feature in the O’Kelley case. I therefore concur for the reason stated at the outset.

Bond, J., concurs in these views.


source: Caselaw Access Project

author: ROT, 0. GRAVES, J.

license: Public Domain

text:
    JACOB SCHIEBERL et al. v. HENRY J. SCHIEBERL, Appellant.
    In Banc,
    November 17, 1914.
    1. WILL CONTEST: Aged Testator: Unequal Distribution: Undue Influence: Testamentary Capacity: Evidence. Testator when about 81 years old journeyed from his home at Cole Camp to Marshall, Missouri, where he spent several months with his son Henry. While there, having gone with Henry to a lawyer’s office, he made a will by which he devised his real estate, worth about $15,000, to that son, and gave to his six other children respectively $100, $500, $100, $200, $15, and $1000. He then returned to live until his death with his daughter at Cole Camp. In a contest of the will there was evidence, though it was by no means uncontradicted, that for two years before the will was written the testator had, on account of mental incapacity, ceased to attend to his business; and while the attesting witnesses testified that they considered him of sound mind, neither of them had had any acquaintance with him prior to the making of the will. Held, that the questions of testamentary capacity and undue influence were for the jury.
    2. -: -: -: Erroneous Instruction. An .instruction in a will contest which told the jury that if they found the provisions of the will to be grossly unequal and discriminatory, then such inequality and discrimination, if not explained or accounted for, might be considered as tending to show want of capacity to make a valid will, but for that purpose only, ,was reversible error in that it failed to include other circumstances tending to show mental incapacity. Gross inequality in the distribution of an estate is a circumstance which, when coupled with other circumstances, may tend to show mental incapacity, but standing' alone it has no such tendency. [WOODSON and GRAVES, JJ., dissent on the ground that the evidence so conclusively showed mental incapacity that the proponent was not harmed by the instruction.]
    3. -: —'■-: Old Age and Infirmity as Evidence of Mental Incapacity: Instruction. In a will contest an instruction which told the jury that old age, sickness, bodily disease, and infirmities alone furnished no evidence of mental incapacity, and that unless they found testator’s mind to have been so unsound that he could not understand the act he was performing, the property he possessed, the disposition he was making of it, and the objects of his bounty, they could not find against the will on the ground of mental incapacity, was rightly refused. Evidence of old age, sickness, bodily disease, and infirmities are all matters to be considered by the jury in determining mental capacity.
    4. -: Subscribing Witness: Evidence of Facts Upon Which He Bases Opinion of Testator’s Capacity. Sevnble that in a will contest a subscribing witness should be permitted to state on what facts his opinion as to the testator’s mental capacity is based.
    Appeal from Benton Circuit Court.— Son. G. A. Benton, Judge.

      Reversed and remanded.

      Alf F. Rector and Henry P. Lay for appellant.
    (1) There being no substantial evidence of lack of testamentary capacity, it was the duty of- the trial court to direct a verdict for the defendant, and having failed to do so, this court will review all the testimony, and finding no such evidence will reverse the case and remand with directions to enter a judgment sustaining the will. It appearing that the testator had mind enough to understand that he was making his will and knew the natural objects of his bounty, the extent of his property, and the disposition he was making of it, his will must be upheld. Neither evidence of old age, feebleness and eccentricities, nor the opinions of nonexpert witnesses not based on facts which show mental incapacity, will justify the submission of the case to the jury. Winn v. Grier, 217 Mo. 420; Hamon v. Hamon, 180 Mo. 685; Cash v. Lust, 142 Mo. 630; Sayre v. Princeton, 192 Mo. -9’5; Gibony v. Poster, 230 Mo. 106; Weston v. Hanson, 212 Mo. 248; Southworth v. Sonthworth, 173 Mo. 591. (2) Instruction 4, given on the part of plaintiff over the objection of the defendants, is erroneous and improper and highly prejudicial to the defendant. In 1 Underhill on Wills, p. 147, it is said: “It is therefore reversible error for the court to single out an unequal distribution from all facts in evidence and give a special instruction as to the effect that would have in determining that the testator was insane.” Bledsoe v. Bledsoe, 1 S. W. 10; Zemlech v. Zemlech, 90 Ky. 655; Mattox v. Mattox, 114 Mo. 49. There is no evidence whatever of any confidential or fiduciary relations between testator and defendant Henry J. Sehieberl so as to cast upon him the burden of explaining why his father had given him a larger part of his property than that given the other members of the family. McPadin v. Catron, 120 Mo. 274; Hughes v. Rader, 183 Mo. 712-13. This instruction is particularly vicious by reason of the fact that the court by instruction 5 given for the plaintiff includes the reasonableness or unreasonableness of the will as a fact for the. consideration of the jury. It will be readily seen that the undue prominence given by the trial court to the unequal distribution among the testator’s children must have been highly prejudicial to the defendant, it being well known that juries are too prone to attempt to correct real or fancied inequalities in wills, thus substituting their necessarily limited knowledge of the relationship and condition of the parties for the full knowledge of and the wishes of the testator, (3) It was error to refuse to permit attesting witness Hiram Ferril to give his opinion as to whether testator at the time of the execution of the will knew what property he had and how he was disposing of it in his will. This was denied because the witness had not given the facts on which he based the opinion, which is not necessary or required in the case of attesting witnesses. While it is true this witness was at first permitted to state that he considered testator of sound mind, afterwards the action of the court in the presence of the jury, practically destroyed the value of the testimony of this subscribing witness, which was reversible error. 1 Under-hill on Wills, p. 107, and sec. 102. In 40 Cyc. 1035, it is stated: “It is a well-settled rule that a subscribing witness to a will may testify as to his opinion formed at the time of the execution of the will, of the mental capacity of the testator without stating the facts or grounds upon which the opinion is based, and the testimony of such a witness is entitled to considerable weight.” Citing Southworth v. Southworth, 173 Mo. 59. The trial court proceeded on the theory that an attesting witness was only competent to give his opinion of the capacity of testator after he had given the facts upon which the opinion was based. This is not the rule. (4) instruction 1-%-D, asked by the defendant and refused by the court, should have been given. McPadin v. Catron, 138 Mo. 217; Crouch v. Gentry, 113 Mo. 248.

      George F. Longan, T. G. Owen and W. S. Jackson for respondents.
    Witnesses who bear close family, social or business relations with testator possess the most favorable opportunities for knowing his mental conditions, and usually their testimony as to his mental capacity is entitled to great weight. Holton v. Cochran, 208 Mo. 314; Knapp- v. Trust Co., 199 Mo. 640. Gross-inequality in the dispositions of the instrument when 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 a free and deliberate off-spring of a rational, self poised and clearly disposed mind. Gay v. Gilliam, 92 Mo. 150; Harvey v. Sullen, 46 Mo. 147; Mowry v. Norman, 204 Mo. 173. The provisions of the will itself are competent evidence as to the testamentary capacity, and if there is unjust discrimination against those entitled to be provided for, it is a circumstance tending to show want of capacity. Gay v. Gilliam, 92 Mo. 250; Roberts v. Bartlett, 190 Mo. 699 ; Young v. Ridenbaugh, 67 Mo. 586. A will contest is an action at law, and this court will not pass upon the credibility of the witnesses and the weight of the evidence, if the evidence be substantial; these considerations are relegated to the triers of the facts. Naylor v. McRuer, 248 Mo. 458-. Where there’is substantial evidence of testator’s incapacity to make a will, the issue becomes one for the determination of the jury and not to be determined by a peremptory instruction. Mowry v. Kettering, 204 Mo. 173; Naylor v. McBuer, 248 Mo. 458. Instruction 4 given for plaintiffs and complained of at point 2 of appellant’s brief, was proper. The provisions of the will itself are competent evidence, when grossly unequal and discriminatory, as tending to show want of mental capacity, and the burden being on the proponents all the way through the case to show mental capacity, there, could have been no error in giving the instruction as framed, for it was limited and circumscribed in its terms so that in effect it did no more than tell the jury that they might consider the terms of the will as tending to show mental incapacity if its provisions were unexplained. Meier v. Butcher, 197 Mo. 89. The rulings in the Mattox case and other cases cited by appellant are not in point in connection with this proposition, (a) Because the instructions referred to therein, are not identical in language, nor substantially .so with the one at issue, (b) Because upon the issue of undue influence (unless a confidential relation is shown to exist) the burden is always on the contestants and in the cases cited under this head by appellant the court was dealing with the question of undue influence and not with mental capacity. With regard to mental capacity the burden continues upon the proponents of the will throughout the case and in the present case the issue of undue influence had been eliminated and taken from the jury by instruction 7. Mowry v. Norman, 204 Mo 189. There was no error in refusing defendant’s instruction 1%L because the law of the case from defendant’s point of view had been fully and correctly declared in the other instructions given at plaintiff’s request, and the same proposition of law fully submitted!: in such instructions.
   ROT, 0.

This is a proceeding by Jacob Schieberl, Mary Esser, Martin Schieberl, Joseph Schieberl and Elizabeth Stohr, contesting the will of Johan Schieberl on the ground of unsoundness of mind of the testator and of undue influence. Henry J. Schieberl, John Schieberl, Wenzel Schieberl, John Schieberl, Jr., and the trustees of St. Peter’s’Roman Catholic Church of Cole Camp were made defendants. There was a verdict against the will. Henry J. Schieberl alone has appealed.

The will is as follows :■

“The last will and testament of Johan Schieberl. Know all men by these presents that I, Johan Schieberl, of Benton county, in the State of Missouri, do make and publish this my last will and testament now revoking all former wills by me made.

“First, I will all my just debts be paid.

“Second, I will, give and devise to my son, Henry J. Schieberl of Saline county, Mo., the following described lands situated in the county of Benton in the State of Missouri to have and to hold in fee simple to him and his heirs and assigns forever, to-wit:

“The northwest quarter of section twenty-three (23) township forty-three (43) range twenty-two (22).

“The southeast quarter of the southwest quarter of section twenty-one (21), township forty-two (42), range twenty-one (21). The west half of the northwest quarter of section thirty-two (32), township forty-three (43), range twenty-one (21). The west half of the northeast quarter of section twenty-eight (28) township forty-three (43), range twenty-two (22), and the ten acre tract owned by me in the southwest quarter of the northwest quarter of* section thirteen (13) township forty-twó (42), range twenty-one (21); containing in the aggregate four hundred and ten acres.

“Third, I will and bequeath to my son, Jacob Schieberl, two hundred dollars.

‘ ‘ Fourth, I will and bequeath to my daughter Mary Esser,-five hundred dollars.

“Fifth, I will and bequeath to my son John Schieberl, one hundred dollars.

“Sixth, I will and bequeath to my son Martin Schieberl two hundred dollars.

“Seventh, I will and bequeath to my son Joseph Schieberl the sum of fifteen ($15) dollars.

“Eighth, I will and bequeath to my daughter Elizabeth Stohr the sum of one thousand dollars.

“Ninth, I will, give and bequeath to St. Peter Roman Catholic Church at Cole Camp, Benton eounty, Missouri, the sum of one hundred dollars, to be paid to the treasurer of said church, said sum to be kept at interest, and the annual interest thereon to be used in keeping the property of said church in repair, and the principal to be used for the same purpose, or in rebuilding the church, when absolutely necessary. The rest and residue of my property, real and personal or mixed, I give and bequeath to my seven children heretofore named in this will share and share alike.

“Tenth, having heard nothing of my son John Scheiberl for about five years, if he has departed this life, it is my will that the sum of one hundred dollars given to my said son John, by the fifth item of this will to be paid to the two sons of John Schieberl, namely John and Wenzel, share and share alike, it is my will that the other children of said son John shall have no interest in my estate.

“I appoint my son Henry J. Schieberl, executor of this my last will and testament and request that no bond as such be required of him. Witness my hand this 13th day of August,-1908.

“Johan Schieberl,’’

The proponents offered formal proof of the will as follows:

Alf F. Rector, one of the attorneys for the defendants, testified: “I have practiced law since 1885'. I wrote the will of Johan Schieberl; I had seen him before, but had no acquaintance with him. Mr. Ferrell and I witnessed it at his request. We saw him sign it, and he declared it to he his will. He had a deed and a tax receipt from which I got the description of the land. He gave me the names of all his children and stated what he wanted to give to each one. Henry had no part in writing- the will except to answer one or two questions that I asked him as to the spelling of some of the names. The old gentleman told me generally what he had. I saw no indication of any weakness in him. I considered him of sound mind. He said he wanted to give Henry his land, and said that his personal property would amount to two thousand or twenty-five hundred dollars, in notes and deposits. He said that John and Martin each owed him a note. He seemed to understand me perfectly well. Sometimes I would have to make him repeat. I read the will to him. Mr. Ferrell did not know the testator. They were there in the office some time together. Henry Schieberl had spoken to me that morning or the day before and made an appointment to write the will. ’ ’

Hiram Ferrell: “I am seventy-three years old and live at Marshall. Have been county clerk and deputy and justice of the peace. I witnessed the will. It was read and explained to him by Mr. Rector who also witnessed it. I considered the testator of sound mind. I heard conversation between him and Rector.” During his examination the following occurred:

“ Q. State whether, from what was said by Schieberl, and his manner, conduct and appearance, you are of the opinion that his mental condition was such that he knew what property he had, and how he was disposing of it in said will?”

“By Judge Longan: Mr. Rector stated here that he wasn’t there at the time the will was drawn; so he didn’t hear anything.

“By the Court: I am inclined to think the objection is good.

“To which ruling the defendant then and there excepted and now excepts.”

“I don’t think I had any acquaintance with John Schieberl before that day. The will had been prepared when I got into Mr. Rector’s office. I don’t know Henry Sehieberl.”

The will and its attestation were then read in evidence. The contestants offered the following evidence:

,T. F. Howe, cashier of the bank of Ionia, testified : “I knew Sehieberl for twenty-five years; I wrote rent) 1 contracts for Sehieberl for ten years, did not mak< the contracts, but wrote them at Sehieberl’s request . He made time deposits and wanted interest on them, that was when he began to deposit in 1905; he was a pensioner and would deposit his pension and want interest on it. He talked very fast and sometimes I would ask him to go slower. For three years he was failing fast both in body and mind. In the last three or four years, Mr. Stohr frequently came with him to the bank; in the last three years he had done but little business, if any, unassisted. Mr. Stohr usually accompanied him to the bank when there was business to be done. In May, 1908, when I last saw him, he did not have the intelligence necessary to transact' his business alone. One cold stormy day, when other people wore overcoats, he came in wearing slippers without socks and with just a little cape about his shoulders; when busy talking would not notice other people standing by. He kept money in the bank on open account and on time deposit. He or some one else would make the contracts for rent and I would put them in writing; would sometimes send the renter with Stohr and would sometimes come himself. I never knew of him béing beaten out of any money; he or somebody else preserved it.”

During cross-examination the following occurred:

“Q. I am trying to find — I believe you stated a while ago, that your judgment was that he wasn’t completely competent to attend to all his business transactions, without assistance, is that right?- A. That’s right.

“Q. Now isn’t it a fact almost every man needs some assistance in attending to all Ms. business transactions; and needs somebody that understands drawing up contracts? A.' A good many of us do, yes, sir.

‘ ‘ Q. Well; that is what you meant by that; wasn ’t it? A. Not exactly, Mr. Lay.

“Q. Well, what did you mean by it, Squire? A Well, I meant that his understanding of business— that the education that he had — he had no education ; that Ms understanding of business wasn’t what it ought to be.

‘ ‘ Q. And that he needed someone to explain these matters to him? A. Yes, sir.

“Q. And draw his interest contracts? A. That is just what I meant to answer.

“Q, I thought that is what you meant; now you haven’t any doubt but that at that time the old gentle- ■ man knew what property he had, had you — what land the note was on? A. That he owned a farm here and a farm there ?

“Q. Yes. A. Oh, yes; he knew that.

‘ ‘ Q‘. He knew that? A. Knew he had a farm here and a farm there; and a piece of land there.

“Q. And also knew that he had money in your bank? A. Certainly; I don’t know whether he knew how much or not; he knew he had money there.

“Q. He knew his children, didn’t he; knew who they were? A. I tMnk so, yes, sir.

“Q. And if he would give anything to anybody, he had mind enough to understand that he was giving them something — wouldn’t he? A. Well, yes, he would understand that; he understood it, but — well, you haven’t asked me.”

On redirect examination the following:

‘ ‘ Q. What do you mean by business capacity, with “ reference to Ms mental condition? I am getting at— Squire Howe, do you mean to tell this jury, that this man was absolutely sound, and that you don’t mean to say anything else but that he had business capacity, but didn’t have business qualifications? That is what Mr. Lay said you meant; I want to see whether you meant that or not.”

“By Mr. Bector: I object to that; he’s cross-examining his own witness.

“By the Court: It looks a little that way; I believe I will let the answer go.

“A. I said I regarded — I answered that question, I am sure, further along — that I didn’t regard his judgment — that he was enfeebled both in body and mind; I would not regard his judgment as sound upon business transactions; now, if they want it that plain, I will state it that way; that is getting around to just what I think I said in other words.”

On re-cross-examination the following:

“Q. You didn’t mean, by that, however, to say, Squire, that you think that he didn’t know, didn’t realize what property he owned, did you? A. I told you that he knew that he had a farm over there, and he had a farm where he lived, and that he had a pasture down here, and had a piece of timber land over there.

‘‘ Q. He knew he had money in the hank? A. Yes, sir.

“Q. Well; that was about all the property he had, wasn’t it? A. That’s all I know of.

“Q. And he knew of all that property, didn’t he?. A. I told you I think he did. Yes, sir.

“ Q. And also knew his children, who they were; you have no doubt of that, have you; I believe you answered that question before? A. I think so too; I think I answered it.

“Q. Well, Judge Longan has gone after it all again; I want to'make this proposition clear; you do think that he realized what children he had; what heirs ? A. That he knew all his .children?

“Q. Yes. A. Why, certainly, I do.

“Q. And that if he was drawing a will, leaving his property to those children; yon believe that he had sufficient mind to understand that he was making such a will? A. Yes, sir. ° ■'

“Q. And he did transact various business matters, and, so far as you know, never lost any money by so doing? A.* No, not as far as I know.

“By Judge Longan: Do you mean to have the witness say he transacted various business matters in the last year or two?

“By Mr. Lay: Yes, sir.

“By Judge Longan: Better let the witness understand it that way.

“Q. He did transact various business matters-with you in the last years of his life? A. I repeatedly said, Mr. Lay, in the last three or four years of his life — three years — Mr. Stohr came with him, when there was any important business to be done.

“Q. Do you mean to say that Mr. Stohr always came with him? A. Unless he came to make a pension voucher, he usually brought him; I say sometimes the old gentleman came — one time I related to you when he came improperly clad; he came alone that day.

“Q. And another time he walked, when you thought he ought not to? A. Yes, I say; but usually, in the last years of his life, Mr. Stohr came with him; and at times when someone was to settle with him, or their paper was to be renewed, or something, Mr. Stohr would then bring that, and say grandpa wants so and so done.

“Q. Now when he came up there to make a deposit with you, he wouldn’t ask Stohr’s advice about making it, would he? A. Do you want me to tell the whole thing, the whole of it?

“Q. I am asking you that question? A. Mr. Stohr and Schieberl would come in together; Schieberl would walk up to the window, and Stohr would come in at his side.

• “Q. Walk up to your window? A. Yes, sir.

‘ ‘ Q. And Sckieberl wonld tell you what he wanted done? A. Well, I don’t know whether he told me, or whether anything was said; he would take out his paper, and I knew he wanted' cash for it.

£<Q. Well, you didn’t hear him, under those circumstances, asking Stohr what he ought to' do with it? A. No. Stohr would sometimes say what the old gentleman wanted.”

On redirect examination the following:

££Q. I will ask you this question, Mr. Howe: Based upon all the facts that you have testified to, with reference to Mr. Johan Sehieherl, and his condition in May, 1908, and for a year preceding that month, and up until the last time you saw him, I will ask you if, in your opinion, he was, without the aid of any other person, strong enough in mind to comprehend all of his property, and all the persons who naturally came within the range of his bounty; or if he had sufficient intelligence to understand his ordinary business, or to know what disposition he would he making of his property, without the assistance of some one else, if he was making a will at that time?

££A. I have answered the question to my understanding.

££By the Court: Mr. Howe, just please answer the questions as they propound them, and they will take care of it.

£< A. Well, I do, Judge; I have answered the question; I have to understand the question; I understood it to he the same that I answered no.

££Q. And you answer this no? A. I do, yes, sir.’’

Re-cross-examination as follows:

££Q. Now, by answering that no; you don’t intend to tell the jury that he didn’t have any of those facnlties, do you? A. I meant he didn’t have all of them; that is the way the question is.

“Q. By that you simply mean, as you explained to the jury before, that you think, by reason of his lack of business capacity, and lack of education, that he wasn’t fully qualified to transact his business, without assistance? A. Business capacity, and education, and judgment.

“Q. By reason of the lack of that? A. I mean just what the English language expresses in that question.

“Q:. That he wasn’t fully capable of transacting his business, without assistance? A. - Yes, sir.

“Q. But as to the rest of the question you don’t answer no ? A. I have to answer that question, the question was entire; I can’t answer part of it, because Judge said I had to say yes or no.”

Louis Schnabel, a merchant of Ionia, testified: “I knew Schieberl twenty or thirty years. Ten years before his death he was strong in mind and body; last two or three years he declined mentally and physically. He didn’t do much business with me while he stopped with Mr. Stohr; of course they frequently bought Ms clothes, something to eat. He didn’t seem to be at himself at times and would say things in presence of ladies which were not fit to be spoken in their presence. That was in the last two or three years. He didn’t seem to lack intelligence at all; did not make such breaks until the last two or three years. His mental condition was weakened so that he didn’t comprehend what he was saying.”

Jerry G-allivan testified:

“I live at Martin Stohr’s, have been there about four years; knew Johan Schieberl about twenty years. He was in the shop at Cole Camp when I first knew him and was a pretty stont, robust man, weighing about 185 or 190 pounds; the last two years he became very weak, weighing about 115 or 116 pounds. I was a farm hand. He would cut off limbs of trees and hedges and put in the creek; that wasn’t benefiting the place any that I could see, hut was tormenting other people. The first flood that came would wash it down against the other man. . He did that pretty much all the summer time, kept it up from the time I first went there until after he came hack from Marshall. I once saw him running around there on the creek without breeches or drawers on and with no shoes. He would gather up nails and strings and rocks and have them in his pocket. Mrs. Stohr would wash his clothes and throw those things away and he would put more stuff back in his pocket. When he was about the kitchen he was right in the way all the time, wouldn’t move for anybody; would look in every vessel on the stove, staid in the kitchen pretty near all the time. I would go through the motions, go lifting off lids, and would say: ‘Lizzie, what have you got in here?’ and she would say: ‘Go away from here; keep your nose out of my pots; ’ do that for his benefit; go to scolding me; I would go over the same performance.

“Q. Why did you go over'the same performance ? A. To get him to quit it. Q. So that she could reprimand him? A. Yes, sir. Q. What would he say about it? A. Never opened his mouth about it. Q. Would he quit? A. He would quit for that time; be the same thing over again in the nest day or two. Mrs. Stohr would say nothing to him about it. He would clean his pipe and put it on the back part of the stove to dry. He would get a fruit can with red pepper in it; had quite a nice perfume there all the time. He put nicotine on the stove, tried to make snuff of it, drank red pepper tea, piping hot. The lady would never say anything to him about it. He would lie on the bed with his shoes on, with mud and manure on them. When Mrs. Stohr would gargle her throat with hot salt water, he would fix some the same way and drink it. When I first went there he would wake up during the night and pray so loud that he would wake everybody up. About two years before be died be quit praying and quit reading bis Cospel, as he called it. He was nervous when a storm came up and kept the little child with him until the storm was over. He treated the child well and she followed him around, and many times buttoned his breeches for him. She was eight years old. He exposed his person in the presence of the child and of anybody who would happen to be around. His mind was not extra good, he would forget where he would leave things and accuse the children of misplacing them; raised Cain there one day because he could not find his drawing- knife. He depended on others, was not able to take care of himself; said he did not have any blood in his heart. He was very childish towards the last; I could not say that he was insane, but he was forgetful about things. He had only one eye. I never saw him under the influence of liquor over three times, then he was pretty noisy. I don’t think he was competent to attend to his ordinary business affairs; he would have Mr. Stohr attend to his business for him. Nobody ever went there to rent a farm but Mr. Stohr had his say about it. He would call him in, didn’t make any difference what he was doing. When he got to Ionia, coming from Marshall, Mr. Stohr quit his work and brought him home and the old gentleman went to. bed and staid there until about five o’clock in the evening. He was getting worse all the time; towards the last it got so he didn’t do anything’ but sit in a stupor. Three or four years ago they performed an operation on him, on hi's back, or tail bone, you might call it. The doctor put his finger up there and could not touch bottom, corruption run out of it. Mr. Stohr had to attend to him. He went down hill after that, never was the same man, mentally or physically. We treated him just like we would a child. He would never get out of the way; it didn’t'make any difference what you were carrying, he wouldn’t move. He would go to the creek bank with Ms pockets full of dust, cbaff, and feed, and scatter it on the creek bank. I never heard any trouble between him and Mrs. Stohr. He seemed to be fonder of her than any of the other children and was very fond of the youngest child. ’ ’

Wm. D. Brunjes testified: “I am a lawyer and interested in farming. I knew Schieberl ever since I was a small boy. He was at first a strong man. Saw him about two years before his death. He didn’t look to be anytMng like the height he had been when he was in Ms prime; he was decrepit in every sense of the term; fallen face, fallen cheeks, practically didn’t seem any mind there at all; practically no life, decrepit as one could almost picture any old man. His mind went down with Ms body, in about the same comparison. He had no mind, wholly incompetent; he dissipated a great deal. It was very hard to grasp what he would say; his language was a conglomeration, just a wave and roll of words; he .could not understand English as well as Herman.”

0. 0. Howe, assistant cashier of the bank of Ionia, testified: “Knew Schieberl since 1905. He became weaker mentally and physically ever since I knew him. When he came to the bank ordinarily he would know me, but on the street he didn’t recognize me from any of the other boys; that was the last two years. At first I could not understand him and would have to talk to him as much by gesture as by speech. He would repeat tMngs in the same conversation. I have known him to just stand and keep' looMng at me and I would get tired of explaining it over and over and he would finally go' on and not give me any sign of recognition at all. The past year he wouldn’t attempt to talk to any one, hardly my father. He never went through his accounts to see how we stood. After that operation he laid very low and néver did recover. He had just recovered from a hard spell of sickness when he went to Marshall. At that time he was going down very fast. I hardly ever saw him in conversation with others, as the hank is not the place for loafers. He came to the bank very often with his clothes unbuttoned and lightly clad. He came once in cold weather with house shoes and no socks. He was not capable mentally to comprehend the value ’ or extent of his property, the names and number of his children and the objects of his bounty. He was not capable of transacting business, at all, because we did all of his business for him. There were times when I didn’t think he would know who his children were; there were times probably when he did. He would forget business that we transacted and went over for him time and again, he would forget entirely about that, sometimes before he would leave the bank. ’ ’

Everett Golden testified: “Jacob Schmelier, Sam Golden, and I were the nearest neighbors to Mr. Schieberl ; have known him thirty-five years. I never could understand him very well. Four or five years ago I spoke to him about renting some land. He said I would have to see Martin Stohr about it. In June, 1908, he was getting older and weaker and feebler and declined more rapidly after the operation.”

Sam Golden testified: “I have lived near Schieberl twenty-five years. He lived with Martin Stohr, who attended to the business all the time, as far as I know. In June, 1908, Schieberl was going down all the time in both body and mind. He was not mentally competent to transact ordinary business by himself. He didn’t act like a man, seemed like a child, like he didn’t know anything. He always had somebody with him when he went past my place. ”

Martin Schieberl, son of testator, testified: “When father was forty years old he weighed 190 pounds and was the strongest man in Cole Camp. He was going on eighty-two years old when he died. He got drunk a good deal and was very quarrelsome when he was drunk; he raised a great deal of disturbance among his family and caused hard feelings. He had a good family of children and he had a good woman also. Father and Henry.had a falling out. Father wanted to hire him, offered him $18 a month. He told my father he would not work on the farm for any s — of-a-b— for any $18 a month. He went to Sedalia; he didn’t get to see father very often, about once in three or four years. Father went to see him twice in the last ten years. The last three years father was weak in mind and body. About six years ago he owed brother Jacob about $600 and paid it. He quarreled with everybody when he was drunk. I am worth about $1500. Martin Stohr has 15 or 16 cattle and 7 or 8 horses. I paid father a note of $530 just a few days before his death; I paid it in currency at his home. ’ ’

Jake Schieberl, son of the testator, testified: “I live in Sedalia; I saw father the last time he went to Marshall. When I went to supper he was at my house in bed. I said, ‘Howdy, father.’ He said something; I. could not understand what he said; I asked him what was the matter with him; he never answered me; never said he was sick, and he laid down at the depot. That was when he went to Marshall; he didn’t stop as he came back. He said he was going to Henry’s, down at Marshall. I took him to the Katy depot and got a ticket for him to Boonville. He was weak minded, too weak to go any place. I work • for the Babcock Lumber -Company. My sister, Mrs. Esser, lives in Sedalia; she is a widow and has eight or nine children, she has no property. I was not at father’s house after he died nor at that time. I went to see father when he had that operation. In 1908 I had $2000! worth of property I think. ’ ’

. Mrs. Esser testified: “I am fifty years old. My husband died a year ago last January. I have ten children living and no property. I saw father at my brother’s in 1908 when he went to Marshall. I put my hand over his shoulder and he looked around a.nd didn’t know me and asked my sister-in-law who that was; he wasn’t able to talk. Brother Henry told me how the will was, and said, ‘Don’t cause any trouble. If you need any help, I will help you;’ and as he left he gave me two dollars.”

Mrs. Martin Stohr, daughter of the testator, testified: “The first six months I was married we lived with brother Jacob; then father got me a house and made his home with me until his death, the last three years. He had an operation performed and he kept going down gradually, was feeble in body and mind and very childish, put the dirt and grit out of his pipe on the stove and burned that and put it in a box; and he would make red pepper tea and drink that; would pick up old rags and shoe strings and put them in his pocket. Every week I would wash the overalls and burn those rags and the next time it would be the same thing. I would have to keep after him to change his clothes. He would go to bed with his shoes on and I would take them off of him when he was too weak to take them off. He saw me use hot salt water gargle, and he put hot water in a teacup with three teaspoonsful of salt and drank that every morning. He would stand around the stove and take the lid off of the vessels, made it very hard for me all the time; looked over my shoulder while I was sewing, half an hour at a time. I handled him just the same as if he was a baby. I would have to stay with him in the closet; he was too weak to help himself. He treated me fine, I never had a cross word from him. My children treated him as nice as anybody could expect, and my oldest girl, ten years old, shaved him. Sometimes he would act like he meant to harm the children whenever they misplaced things. He said there was no blood in his heart. When he came from Marshall, the train carried him through to Calhoun and they sent him back on' the train. Pie was feeble and went to bed. We lived on 160 acres and a pasture of SO acres; we paid $300 a year rent and he gave my husband $6 a month for board. We paid about what farms rent for around there. ’ ’ •

John Duber testified: “I live five and a half miles from the Stohrs. Mr. Schieberl toot dinner at my house on his way to Marshall; he ate some, but he vomited. ’ ’

John Stoddard testified: “I knew Schieberl thirty-two years. Was intimately acquainted with him; often at my house; was around my shop frequently. He was at my house about two months before he died. He got feeble in body, but could converse sensibly. His mental condition was all right. He would talk about business and how it used to be in other days. He took an interest in my affairs and was glad I was going well. He came regularly to church every two weeks until two months before he died.”

Henry Picken testified: “I lived three-quarters of a mile from Schieberl. I knew him forty-one years. He would come to my. place often, but of late years- he got too feeble. I saw him in May before he died. I bought his rent corn and he would require me to pay the money to him. I never saw any indications that his mind was unsound. When we met in the last few years we talked little except to greet each other. He complained of getting old and feeble and about his heart.”

Joseph Schmelier testified: “I saw Schieberl pretty often the last five years. We didn’t have much conversation. I talked with him before he went to Marshall. He said he had only one child, and that was Henry and that he would give’Henry all he had. He told me that three or four times. He had a good mind.”

Stephen Schmelier testified: “I saw testator frequently in the last five years, and talked to him a little. He had go'od health. Before he went to Marshall in 1908, he said he only had one son, and that was Henry, and that he would give Henry all he had. He had a good mind.”

Martin Medek testified: *‘I knew Schieberl from the time I was a boy. He often came to my house. The last two or three years he was- like the average man of his age. There is no smarter man of his age than he was. He talked well of Henry.-’ ’

George Schuber testified: “I saw Schieberl at church often and talked with him. ' There was nothing wrong with his mind. At church a month or two before he died he wanted me to buy the farm I live on. ’ ’

' George R. Bellew testified: “I live on one of Schieberl’s places. I moved on the farm in February, 19091. He never came on the place while I was there. I made the contract of rental with him. He seemed capable of looking after his own interests. He had me furnish some work and material and he paid me after I did the work.”

Margaret Smazel testified: “I have lived at Cole Camp thirty-three years and talked with Schieberl. His mind was all right. ”

Martin Schieberl testified: “I have lived in Boonville since 1830. I am a brother of the testator. In 1908 when he went to. Marshall, I fixed a suit that I made for him twenty years ago. I dyed it. I also made a $25 suit for him and he paid me. He staid perhaps six days. He went to see an- old sawmill friend while with me. On his way back from Marshall he came to my shop carrying his satchel. I saw nothing wrong with his mind. Before that he was at my house on his way to Marshall. I watched him to see if there was anything wrong. I took him to Marshall not because he needed me, but because I wanted to see his son Henry.’’’

During his cross-examination the following occurred :

“Q. Did you talk to Henry about the will? A. Why, only asked him about the will.

“Q. Did Henry tell yon Ms father had left him everything, himself? A. Why, I don’t know, probably he did say so.

“Q. He said that he left him the farm, all the land? A. Why he—

“Q. Nearly everything? A. Why, he didn’t say everything; he said he left him — now, how much was it? — he said he left him half the land, I tMnk; I forget things like that.

“Q. You asked him how he came to do it; you asked him what made his father leave him all of it? A. Well, maybe I did; I don’t know exactly.

“Q. Well, you did, didn’t you? You and Henry talked about it; now did Henry tell you at that time that he dictated that will? A. No, sir; I never said that; he never said dictated; that isn’t so.

“Q. What did he say.? A. Oh, no.

“Q. What did he say, if he didn’t say dictated? A. Yes, sir; I have noticed myself that people didn’t seem to understand my brother; couldn’t understand my brother and Henry didn’t understand his papa; and so he made his lawyers, whoever it was that made the will, understand what his father meant.

‘ ‘ Q. That is what Henry told you; he said he interpreted? A. I don’t know what he said; I suppose he did.

“Q. He said he interpreted for his father, the will; ain’t that what he said? A. Well, not necessarily.

“Q. Well, what was it, now? Tell the jury what he did say about interpreting that will. A. Well, that is all I have to say.

“Q. I am asking you about what Henry told you, about interpreting the will. A. Well, he only said some words what — some words they couldn’t exactly understand right well, that Henry would tell them what he means; hut that was no interpretation. ’ ’

E. 0. Utz testified: “I live at Marshall and am a carriage maker. Henry Schieberl has been in my employ as a blacksmith for nearly eighteen years. "Whenever his father came to see him, he (the father) would come to my shop. I met and talked with him the last time he was there in 1908. I didn’t notice a thing wrong with him. Our ■ principal talk was about the shop work. He would sometimes advise me how to do with the work. ’ ’

Homer Hatton testified: “I am employed at the Saline carriage works in Marshall, the same place where Henry Schieberl works. I knew Henry’s father. I saw and talked with him nearly every day at the shop when he was at Marshall in 1908. His mind was sound. ’ ’

Dr. M. F. Chastain testified: “I have prácticed medicine nearly fifty years. • I was postmaster at Marshall in 1908. I met John Schieberl at Utz’s shop in 1908 several times. We had considerable conversation. Once he had me go to Mr. Ferrell’s office to fix up his pension papers. We talked about people I knew in Benton county. I regarded him as being mentally normal. ’ ’

Henry Schieberl testified: “I have lived at Marshall eighteen years. I never called my father a s— of-a-b — . I never had any trouble with' him. In eighteen years he visited me four times. In 1908 he came in June and staid until the middle of August. I didn’t see anything wrong with his mind. I was present at Mr. Rector’s office when the will was made, but not all the time. I didn’t use any influence with him to get him to make the will. I didn’t say a word about dictating the will. I went with my father to Mr. Rector’s office. I had been there in the.morning to make a date at father’s request. He didn’t know Rector. I am not worth more than $2000. ’ ’

¥m. Sclmrman testified: “1 have lived at Cole Camp over fifty years. I saw Sehieberl on the street and at church the last five years. I didn’t notice anything, wrong with his mind.”

The real estate owned by "testator at the time of his death was worth about $15,000.

At the close of all the evidence the defendant asked a peremptory instruction to the jury to sustain the will, which was refused. There was no instruction withdrawing the question of undue influence, but, on the other hand, there was no instruction submitting that issue to the jury.

The court gave for the plaintiffs the following among other instructions:

“4. The jury are instructed that if they find that the provisions of the will are grossly unequal and discriminatory, in favor of Henry J. Sehieberl, and that such inequality and discriminations have not been explained or accounted for by the proponents of the will or otherwise, then you are instructed that such inequality and discriminations may be considered by you, as tending to show want of capacity to make a valid will, but for that purpose only. ’ ’

And refused the following among other instructions asked by defendant:

“iy2d. The court instructs the jury that old age, sickness and bodily disease and infirmities, alone, furnish no evidence of mental incapacity of the testator; and unless you. find from the evidence that the testator’s mind was so unsound that he could not understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons or objects of his bounty, you cannot find against the will, on the ground of mental incapacity.”

I. Appellant says that the trial court should have given the peremptory instruction to find in favor of the will: That raises the question both as to testamentary capacity and as to undue influence. In this case those two questions. are so intermingled and interdependent that we deem it-best to consider them together.

We are cited to a long list of cases in which it was held that there was no satisfactory and substantial testimony tending to .show testamentary incapacity. At the head of that list, as cited, is Winn v. Grier, 217 Mo. 420. In that case, old age, disease, peculiarities, eccentricities, absent-mindedness, forgetfulness, and the opinions of witnesses that his mind was unsound, were relied upon to impeach the will. It was held that all those were insufficient to take the case to the jury. But there were two facts in that case which make a wide gulf between it and the case in hand: First, the evidence for the plaintiffs in that case showed that the testator continued to transact his business in the usual way until long after the will was written; second, the testator, so far as the evidence showed, dictated his will independently of any one, and had it witnessed by men one of whom had long known him in business, and both witnesses clearly testified as to his mental capacity, and that will showed that the testator had the business “ fully in hand’'’ (l. c. 456).

Ordinarily it is vain to say that a man is not mentally capable of attending to his usual business when he is, at that very time, engaged in doing his usual business in the ordinary way with reasonable success. So it will not ordinarily avail to say that a testator did not have testamentary capacity when the undisputed evidence shows that, unassisted and independently so far as declaring his purpose is concerned, he made a will which measured up to the character of “a rational act rationally done.”

In all cases cited by appellant as above stated one or both the above propositions have been the bulwarks behind which the will has stood secure. It may be conceded that those propositions are not always and alone the determining factors 'in a will contest. But ordinarily they are the pivotal facts which determine whether the will should stand. On "the other hand, when there is substantial evidence showing that, on account of mental failure, the testator had ceased attending to his business, then the question of mental capacity must go to the jury. Likewise, when there is substantial evidence showing that the testator did not act independently in making the will, but that his will was controlled by the overpowering will of another, or that the will as made was not a rational act, then there is an issue for the jury to try.

We will not rehearse the evidence in this case, but there is substantial evidence showing that for the last three years of his life, and for two years before the will was written, the testator had, on account of mental incapacity, ceased to attend to his business. There is evidence to the contrary, but that question must be settled by the proper triers of the facts. Neither of the subscribing witnesses had any acquaintance with the testator prior to the making of the will. The defendant made the appointment with Mr. Rector for the writing of the- will and was present when it was written. His uncle, who was his witness, testified that he and the defendant had a talk about the making of the will in which talk defendant told about making plain to the lawyer what his father meant at the time the will was written.

1

In Turner v. Anderson, 236 Mo. l. c. 539‘, it was said: ‘ ‘ There is not a particle of testimony that Mrs'. Anderson was instrumental in procuring or drawing the 1905 will or in anywise hovered over the transaction.” Mrs. Anderson was the wife of the testator in that case and the principal beneficiary under the will. In this case the testator, with much assistance on the journey, arrived at defendant’s house in June. After being there about two months, he went with the defendant and made his will giving to defendant nearly all his property, and at once went back home to be cared-for until his death by the daughter whom he had in a large measure disinherited. The facts in the case including the terms of the will itself made ah issue as to undue influence.

II. Instruction 4 given for the plaintiff was clearly erroneous. It singled out the fact of the inequality of the children under the will and called the .attention of the . .... jury to it. Such an instruction was condemned in Hughes v. Rader, 183 Mo. 711.

III. Instruction l%d asked by defendant was properly refused. It singles out facts for the attention of the j'ury.

IV. We will not decide, on the record as made, whether the court committed error in susGaining objection to the question asked of the subscribing witness Ferrell as shown in the above statement. As the case must be retried, we are of the opinion that the subscribing witness should be permitted to state on what facts his opinion as to testator’s mental capacity is based.

The judgment is reversed, and the cause remanded.

Williams, C., concurs.

PER CURIAM. — This cause coming into Banc on a dissent, on a new hearing there the majority of the court {Lamm, G. J., Bond, Walker, and Faris, JJ.) are of the opinion that the giving of instruction 4 for contestants was reversible error; this for reasons given by Graves, J., in his dissenting opinion for holding it error but not reversible error. The majority of the court concur only in the result reached in the Commissioner’s opinion and not in all the reasoning;

Brown, J., concurs in the Commissioner’s opinion in toto; Graves, J., dissents in a separate opinion in which Woodson, J., concurs.

The judgment is therefore reversed and the cause remanded.

GRAVES, J.

I do not concur with our learned Commissioner in the result reached in this case. The question of undue influence was abandoned when the contestants failed to ask an instruction on that branch of their case, and for present purposes need not be considered.

I agree with the Commissioner that the giving of instruction 4 for the plaintiffs was error. Gross inequality in the distribution of an estate is a circumstance which, when coupled with other circumstances, may tend to show mental incapacity, but standing alone it has no such tendency. The instruction should have coupled gross inadequacy in the manner here suggested.

Instruction No. l%d was propeily refused. Evidence of old age, sickness, bodily disease, and infirmities are all matters which are to be considered by the jury in determining the mental capacity of the testator. It is not always that a testamentary mind is found in an aged, decrepit, and infirm body. To say the least, it is common knowledge that the physical condition often affects the mind, and a jury has the right to consider the physical condition in determining the mental condition.

I think, however, the result reached by the opinion is wrong. The evidence so conclusively shows mental incapacity, that' I do not believe the defendant has' been harmed by this erroneous instruction 4. I think the verdict and judgment nisi is so clearly for the right party that it should be affirmed, and I so vote.

Woodson, J., concurs in these views.


author: BROWN, C. PER CURIAM. WOODSON, J.

text:
    GIANNOULA DIARIOTTI v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    November 17, 1914.
    1. NEGLIGENCE: Recovery for Death: Law of Kansas: Liberally Construed. Section 4871, General Statutes of Kansas 1901, providing for a recovery by the personal representatives for a wrongful killing, if the person killed might have maintained an action had he lived, is coeval with the State of Kansas, is remedial in character, and should receive a liberal interpretation.
    2. -: -:--: -: Notice. Section 4871, General Statutes of Kansas 1901, provides that when the death. of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter if the former might have maintained an action had he lived. Section 1, chap. 393, Laws of Kansas 1903, provides that a railroad operating in that State shall be liable to any employee for all damages done to him through the negligence of its agents, engineers or other employees, provided that notice in writing of the injury shall have been given “by or on behalf of the person injured” within 90 days after the accident. Held, that the words concerning notice in Sec. 1, chap. 393, do not apply to an action under Sec. 4871, because notice can be given neither by the dead nor in their behalf, and the provision does not include notice given in behalf of one entitled to damages for the death of another. [WOODSON, X, dissents.]
    3. -: -:--: Suit by Widow of Alien. Under the laws of .Kansas (Sec. 4872, G. S. 1901), an alien next of kin can maintain an action for damages for the wrongful killing of another alien, and where a widow, resident in Greece, filed her suit in Missouri, where her husband died as a result of injuries received in Kansas, an allegation in her petition that her husband died in Missouri is sufficient to show her capacity to sue until defendant shall plead and prove that deceased left an estate to be administered in Kansas.
    4. -: -:--: Question for Jury: Evidence: Reports to Defendant Introduced by Plaintiff. Evidence in an action by a widow for damages for the death of her husband through the negligent managing of hand cars by defendant’s employees held to justify a submission of the case to the jury despite the fact that, to show notice, plaintiff introduced reports of employees, made to the company in compliance with its rules, which tended to show dua care on defendant’s part and contributory negligence on that of deceased.
    Appeal from Jackson Circuit Court. — Hon. H. L. McGune, Judge.
    Affirmed and remanded.

      Martin L. Glardy and Edw. J. White for appellant; Elijah Robinson of counsel.
    (1) The court erred in setting aside the verdict and judgment in this case in favor of the defendant and granting the plaintiff a new trial. • The statute of Kansas, not vesting the cause of action absolutely in the widow, but the right to sue passing to the administrator or personal representatives of the deceased, the widow could not maintain the action, as the probate court, alone, would have jurisdiction to determine her property right and its jurisdiction in this regard was both original and exclusive. (2) The plaintiff’s own evidence established that the accident through which Diariotti was injured, was not caused by any negligence of the defendant, or any of its employee's, but that the deceased himself was guilty of negligence, directly contributing to his injury. The plaintiff put in evidence the .statements of Bill Curissi and Pietro Darass and Bill Danasa. These statements showed that the deceased was £ £ standing on hand car, when he become overbalanced and fell in front of the car. . . . Injured man says, got out of balance. No one to blame.” And some of the witnesses for the plaintiff testified that the fourth car ran against the third car and knocked several men off, the deceased being one of them, but their testimony was conflicting and unsatisfactory and was diametrically opposed to the statements introduced by the plaintiff and standing alone was insufficient to support a verdict for the plaintiff. Moore v. Railroad,' 28 Mo. 622; Peck v. Railroad, 31 Mo. App. 123; Peffer v.-Railroad, 98 Mo. App. 29l; Railroad Co. v. Shertle, 92 Pa. St. 450. Both Peter Darass and Bill Corizis, in their statements, state that the deceased was told three or four times to hold on to the lever, which would have prevented his falling, but he failed to do so. This was a part of plaintiff’s evidence and was uneontradicted. These statements convicted the deceased of contributory negligence, as a matter of law, and since he could not have recovered for the injury resulting therefrom, the plaintiff was also not entitled to recover and the demurrer was properly sustained. Yan Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Huggard v. Railroad, 134 Mo. 497; Kelsey v. Railroad, 129 Mo. 362. (3) If the death of the deceased could be connected at all with the defendant’s negligence, it was the negligence of its ££agents” and ££employees” and finder the statute of Kansas, in force at the time of his injury and death, it was a condition precedent to the plaintiff’s right to maintain this action; that££notice in writing of the injury, stating the time and place thereof,” should have been given tbe railroad company,” within ninety days after the occurrence of the accident and the failure to give this notice was a complete barrier to the plaintiff’s right to maintain this cause of action. Mathieson v. Railroad, 219 Mo. 542.
    Conhlmg, Rea S Sparrow for respondent.
   BROWN, C.

The plaintiff is the widow of Peter K. Diariotti who was killed while engaged in the service of the defendant near Hope station in the State of Kansas, July 6, 1904. She commenced this suit in the circuit court for Jackson-county, Missouri, at Kansas City, September 19, 1905, to recover damages sustained by reason of his death.

In her amended petition the plaintiff alleged that her husband was one of a number of laborers in defendant’s employ working upon its track near the place where he was killed, and at the time of the accident was being carried by defendant on hand cars with other workmen to his place of work. That his death was the direct result of the negligence of the defendant and its foreman and assistant foreman in charge of the hand cars in placing upon the one upon which her husband was being carried, too many men; in failing to maintain a reasonably safe distance between them; in running the cars at an unreasonable rate of speed; in failing to stop the car immediately following in time to avoid a collision; and in failing to provide proper and sufficient rules for the operation of its hand cars under such circumstances, all of which were alleged in violation of its duty.

The plaintiff also pleaded as a foundation for her right to recover damages the following statutes from the General Statutes of Kansas of 1901:

“'Section 4871. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action tlierefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.
“Section 4872. That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”

The petition stated that plaintiff resided in Missouri at the time of his death, and that no personal representative had been appointed.

The defendant pleaded and put in evidence section 1 of chapter 393 of the Laws of Kansas of 1903, entitled “An act to define the liability of railroad companies in certain cases” which is as follows:

‘ ‘ Section 1. That section 1, chapter 93 of the Laws of 1874, entitled, ‘An act to define the liability of railroad companies in certain cases,’ approved February 26, 1874, be and the same is hereby amended so as to read as follows: Every railroad company organized or doing business in this State shall be liable for all damages clone to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident. ’ ’

The evidence tended to show that the deceased was a Greek who came to this country in March, 1903, from his home in the little village of Lasteika in the province of Elis in that country, leaving his wife and four young children, the eldest eleven years old, in their former home, sending them money from his earnings for their support and declaring his intention to return to his home in four years.

Upon his arrival in this country he landed in New York City, went to Chicago, where he remained fifteen or twenty days; thence to St. Louis where he remained a month, working in a factory, and from there he went to Sycamore, Kansas, where he entered the service of the defendant railroad company, by which he was moved from place to place in. the course of his employment, and 'at the time of his death he was working on defendant’s railroad near Hope, Kansas, where he lived in a boarding car. The accident happened while defendant was taking the gang with which he was employed to their place of work near Hope. There were between thirty and forty in the gang who were being moved on -four hand cars in charge of a foreman and his assistant. The deceased was riding on the third car, standing on the front end with his back to the front, pumping the car in the usual manner. The evidence tended to show that the fourth car hit the third one upon which the deceased was riding, knocking him off it, and the car then ran against him, breaking three of his dorsal vertebrae. He was sent to the defendant’s hospital in St. Louis, where he died from the injury in about three weeks.

Under a rule of defendant three reports were made out for its information by employees present at the accident. These reports were produced on the trial. The court directed a verdict for the defendant, stating at the time that it was upon the ground that no notice had been, given by or on behalf of the deceased within ninety days after the occurrence of the accident as provided by section 1, chapter 393 of the Laws of Kansas 1903, already quoted. The motion for a new trial stated among others the following grounds:

“4. Because the court erred in holding that the provisions of the Act of the State of Kansas of March 4, .1903 (Laws of Kansas 1903, p. 599), were applicable to this case.
“5. Because the court erred in holding that the written notices of the injury, as made by defendant’s laborers, were not a substantial compliance with the said act of the State of Kansas.”

From the order of the court sustaining this motion, the defendant has taken this appeal.

I. This suit is founded upon section' 422 of the Civil Code of Kansas, which provides that “when the death of one is caused by the wrongful act or omission of another, the per- • „ ,, . „ sonal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission.” This section is coeval with Kansas, having been enacted by its first Legislature, in 1859; so that in that commonwealth the right of action for wrongful death has,' as was said by its Supreme Court in Atchison, Topeka & Santa Fe Railway Co. v. Fajardo, 74 Kan. 314, “been as available as any of the common-law remedies.” It is, as is said in the same case, “remedial in character, and should receive a liberal interpretation with a view of extending the remedy to those who have suffered damages from the death of a relative which was caused by the wrongful act of another.” It was founded in the just and simple notion that if it be right to compensate the disabled man in damages for what he might otherwise earn for the comfort and happiness of those whom the law of nature as well as the law of the land has committed to his keeping, it must also be right, in case of the more monstrous wrong of his death, that that portion of the compensation should pass directly to those upon whom the loss has fallen.

In 1874 Kansas, by its railway fellow-servant law, placed all railway employees in a class by themselves with respect to compensation from their employers for wrongful injuries, by including those cases in which the common-law right to such compensation had always existed with those in which the new right was given to be compensated for injuries suffered from the negligence of fellow servants, in one section of the statute, as follows:

“Every railroad company organized or doing’ business in the State of Kansas shall be liable for all damage to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage.”

These two provisions went hand in hand for twenty-nine years, when the following words were added to the one last quoted: “provided, that notice in writ-bug of the injury so sustained, stating the. time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.” [Laws 1903, sec. 1, chap. 93.] This law was in force at the time this injury was suffered, and the question as stated by the trial court was whether it is applicable to this suit for killing the deceased. Its words do not apply because notice can neither be given by the dead nor in their behalf, and they do not include notice given on behalf of one entitled to damages for the death of another.- The death statute under which this suit is brought provides that the right to maintain it shall exist if the deceased might have maintained an action had he lived . . . for an injury for the same act or omission. It is the death by the act or omission that gives the cause of action direct to the plaintiff under the- statute, and the fact that the deceased, had he lived, might have maintained an action for an injury resulting from the same wrong, which determines the right to recover. There is nothing in the amendment of 1903 which indicates a purpose to apply it to suits for damages resulting from death and no reason why its construction should be strained for that purpose.

II. The statute provided that in all cases where the residence of the deceased was, at the time of his death, in any other State or Territory, or when being a resident of this State no personal representative is or has been appointed, the action may be brought by the widow. In this case the residence of the deceased was in Greece, where his family still remained at the time of his death. There is no evidence in the record that he ever acquired a residence in Kansas. He died in Missouri, which was also the home of the defendant corporation as admitted by the pleadings.

That an alien next of kin might bring this action for the death of an alien was held by the Kansas Supreme Court in Railroad v. Fajardo, supra. In that case the court says: “Residence in another State or territory means a residence outside of Kansas.” The statute of Kansas (G. S. 1905, sec. 2875) provided that “when any person shall die intestate in any other State or country leaving any estate to be administered within this State, administration thereof shall be granted by the probate court of any county in which there is any estate to be administered.” The Supreme Court of that State holds that this provision contemplates that “when a person dies intestate in any other State or country than Kansas, in order to authorize the granting of letters testamentary or letters of administration the deceased must have left an estate to be administered within this State, and that estate must be something of a tangible nature to pay the costs and expenses of administration and the debts of the intestate, if any exist. The money recovered by the administrator in an action given by section 422 cannot be used for the costs and expenses of administration, or to satisfy the debts of the creditors of the deceased; and an action based upon this statute is not an ‘estate’ or ‘assets’ within the act respecting executors and administrators.” [Perry v. Railroad, 29 Kan. 420; 423.]

The statement in the petition that the deceased died in Missouri is sufficient to show the capacity of the widow to bring the suit until defendant shall plead ■ and prove that he left an estate to be administered in Kansas.

III. The defendant insists that there was no evidence to justify the submission of the case to the jury. We have carefully read the testimony and while the plaintiff’s evidence was somewhat conflicting we think it tends to prove negligence in the management of the hand cars directly contributing to the injury, and that the question of contributory negligence was for the jury to determine. The argument of defendant’s counsel on this branch of the case is founded largely upon the theory that the plaintiff, having introduced the reports of the accident made to plaintiff by its employees under its rules, for the purpose of showing notice to the defendant, is bound by the statements of fact contained in them. We do not think that is the law, and the defendant has not directed our attention to any authority in support of his position. The statements prove that the men who made them reported to the defendant that they were true and nothing more.

We accordingly affirm the judgment of the circuit court granting a new trial and remand the case for further proceedings.

PER CURIAM.

This cause coming into Banc, the divisional opinion of Brown, C., is adopted as the opinion of the court.

Lamm, G. J., Brown, Bond, Walker and Faris, JJ., concur; Woodson, J., dissents in an opinion filed; Graves, J., dubitante.

DISSENTING OPINION.

WOODSON, J.

By reading the statement in this case, and the law applied thereto, it will be seen that our learned Commissioner has overlooked the ease of Mathieson v. Railroad, 219 Mo. 542, l. c. 546, construing the act of the Legislature of Kansas which went into effect March 4,1903, which reads as follows:

“Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.” (The italics are ours.)

In that case this court, after reviewing the authorities, unanimously held that the notice mentioned therein was a substantive element in the plaintiff’s case, and that a petition based upon the laws of Kansas, omitting an allegation regarding the giving of said notice, failed to state facts sufficient to constitute a cause of action.

In a passing phrase, Mr. Commissioner Brown, without considering the statute in any sense whatever, brushes it aside as so much chaff by the following’ words: “Its words do not apply because notice can neither be given by the dead nor in their behalf, and they do not include notice given on behalf of one entitled to damages for the death of another. ’ ’

If a solemn enactment of a Legislature, plain, simple and unambiguous as this statute is, can be brushed aside without thought or consideration, and with so little ink, then I would suggest that Legislatures be abolished, and that the law making and repealing power of government be placed in the hands of the judiciary, and thereby avoid the expense and necessity of going through the useless forms of legislation.

The statute in plain words says the injured party shall give the notice, or some one else shall give it for him. The mere fact that he dies of his injuries does not take the case out of either the spirit or letter of the statute, any more than if he should have been so badly injured that he could' not have been physically able to give the notice. For that reason the italicized words of the statute were evidently added in order that death or physical inability would not destroy the cause of action, which the general terms of the statute would otherwise have done, had not said proviso been added authorizing others to give it for him.

Without the notice the plaintiff had no cause of action during life; and if he died without giving the notice, or some one for him, then he had no cause of action to survive to the plaintiffs, those referred to in the other statutes mentioned in the opinion of our learned Commissioner.

The simplicity of the facts of this case, and the statutes applicable thereto, causes one to marvel why sensible men can misuxiderstand them, except upon the theory that we are convinced of the fact that the legislature of a State is incompetent to enact laws for tbe government of its-people, and therefore the courts must for righteousness’ sake set aside or nullify them.