author:
WHITE, C.
      FARIS, J.

text:
    MARY ALICE HEINBACH v. JESSE HEINBACH et al.; EDITH BRITTEN and NAOMI SUMMERS, Appellants.
    Division Two,
    April 26, 1918.
    1. UNDUE INFLUENCE: Marriage for Money. Testimony tending' to show that plaintiff married the filthy old testator for his money is not sufficient to set aside his will on account of her undue influence, nor to submit that issue to the jury, where the evidence further shows that she discharged the duties of a good wife, that his appearance and drunken habits were much improved by the marriage, that he entertained a true affection for her, and there is no evidence, direct or circumstantial, that she did or said anything which had a tendency unduly to influence him in making the disposition of the property he did.
    2. TESTAMENTARY CAPACITY: Evidence: Decree of Divorce. In a suit to have a will sustained, brought by a second wife against testator’s children by a former wife, the decree of divorce obtained by him from skid former wife is competent as tending to explain the relations he sustained to them, and to throw light on the reasonableness or unreasonableness of his bequests and thereby his mental capacity.
    3. -: -: Leases. Certificates of acknowledgments of leases made by testator prior to his death are admissible in evidence in the will contest, for purposes of showing that they were executed; for the leases themselves would prove nothing as to testator’s capacity to transact business unless it was shown that he executed them. But it is proper to instruct the jury, upon request, that the certificates are admissible only for the purpose of showing the execution of the leases.

      i. -: -: Opinions. Witnesses who had no talk with testator and did not hear him talk under such circumstances as would make them competent to judge whether he was mentally sound or unsound should not be permitted to give their opinions of testator’s sanity.
    5. -: -: Conclusions. Witnesses should not be permitted to give their conclusions as to testator’s mental state, such as “he never talked like he had much sense to his talk,’’ “it would be just drunk talk,” etc. Nor should they be permitted to answer questions about testator’s hallucinations and imaginings, but should be required to state the facts as to what he said and did. ■

      6. '-: -: Opinion: Qualification of Witness. Witnesses who had or who witnessed business dealings with the testator, especially if such dealings extended over a series of years, are qualified to give their opinion as to his sanity.
    7. -: -: General Objection. Unless the objections to the testimony of a witness state the specifi¿ grounds thereof they wilL-not be reviewed on appeal. An objection that the question “is not proper” or “is irrelevant” or “has no bearing on the case” or “is an improper method of showing mental condition” is not sufficient.
    8. -: -: Conclusion of Non-Expert: Facts Incapable of Complete Statement. Held, by White, C., that whether or not the opinion of a non-expert witness may be received at all depends upon the nature of the facts from which it is drawn. Such a witness may give his conclusions or deductions when the matter is one which a witness of ordinary intelligence can understand, and such conclusions or deductions are based upon facts which are incapable of being properly or accurately described by him to the jury. If he can clearly and accurately give the facts upon which he might base his conclusion, then it is for the jury to draw the conclusion, and the opinion or deduction of the witness is improper. In any event, he must qualify and show he knows the facts from which he draws his conclusion, and must state them als far as he can; but if they are not susceptible of complete and accurate portrayal before the jury, he may state his conclusion.

      Held, by FAB.IS, X, with whom the other judges concur, that to permit a non-expert witness to state his conclusion as to the ultimate fact to be found is an invasion of the province of the jury, and is allowable only as to the issue of insanity, and even then it is for the jury to say whether the quantum of insanity is sufficient to destroy testator’s testamentary capacity.
    9. -: -: -: -: Witness to Will: Comprehension of Property and Heirs. Held, by White, C., that a witness to a will who had known the testator for three years and had seen him every day and sometimes twice a day was qualified to testify that the testator, at the time the will was read to him, in the presence of two witnesses, comprehended and had sufficient mind to comprehend who his children were and had sufficient mind to understand the nature and extent of his property and to whom he desired to give it, the will itself mentioning all • the children, and giving to them nominal bequests and the balance to his wife. The inumerable details and incidents which constituted the expression and demeanor of testator, all of which went to make up the impression to which the witness testified, could not be translated into descriptive language; and the witness having sufficient data from which to infer that the testator knew his children and the extent of his property, and having qualified himself by long and intimate observation, his conclusion was admissible.

      Held, by FABIS, J., with whom the other judges concur,, that the testimony of the witness went directly to the ultimate issue to be found by the jury, and was an invasion of their province, and violated the rule that opinions of non-expert witnesses are to be confined to the one issue of insanity vel non; but as the questions and answers were not preserved for review by specific objections, the judgment should not be reversed because of the admission of the testimony.
    10. WILL: Proof of Execution: By One Witness. The execution of a will may be proved by one of the subscribing witnesses; both are not necessary for that purpose. The will cannot be rejected simply because the absence of the other subscribing witnesses is not accounted for, for the proof of the will may be made by other sufficient testimony, and the testimony of the one subscribing witness as to its formal execution may be supplemented by that of other persons, such as the scrivener.
    11. -: -: Peremptory Instruction. It is not error to instruct the jury that the instrument read in evidence was formally executed as to the signatures of the testator and the subscribing witnesses in the manner required by law, where the uncontradicted evidence is sufficient to establish its execution in due form; and especially is such an instruction not error where contestants in their pleading admit and assert its formal execution in unmistakable language, as they do in this case.
    12. -:-: Meaning: Making and Executing. To “make a will” is to execute it. The common understanding of the words “making a will” is the writing, signing and attesting it in due form. The words “execute” and “execution,” as applied to an instrument of writing, mean more than merely signing it; if a will, it is not executed until all the formalities prescribed by the statute are complied with, which are that it must be in writing, signed by the testator and attested by two or more competent witnesses subscribing their names thereto in his presence.
    13. -: Bight to Dispose of Property: Unfair Discriminaton: Instruction. An instruction telling the jury that the testator had a right to dispose - of his property by will as he chose, even to the exclusion of his nearest relatives, and that the mere fact that the jury might believe the disposition unfair and unjust would not justify them in finding that it was not his last will, is a general statement of the law, does not single out facts, and is not error.
    14. BEMABKS OF COUNSEL. Where counsel did not so persist in arguing against the court’s ruling that certain remarks were improper as to require a rebuke, the failure of the court to rebuke him was not error.

      Appeal from Pike Circuit Court. — Eon. Edgar B. Wool-folk, Judge.
    AjTIBMED.

      J. 0. Allison, C. T. Eays, J. D. Eostetter, D. A. Ball and J. 8. Fitsgerrell for appellants.
    (1) The court committed error in excluding the testimony as to the mental condition of Samuel Hein-bach, and his actions, manner, imaginations and hallucinations. The court erred in excluding the evidence as to his manner of talk and ability to talk and carry on a conversation and understand business transactions. The court erred in excluding the evidence as to Hein-bach’s drinking and as to the white horse. (2) The court erred, in excluding the evidence hearing on the issue of undue influence.' (3) It was error for the trial court to give plaintiff’s peremptory instruction to find for the will upon the issue of undue influence. This point was not in issue on the former appeal, and this court’s ruling there is not res ad judicata. Turner v. Anderson, 260 Mo. 1. Besides, the evidence given at the last trial on the subject of undue influence was stronger and more abundant than that at the first trial. The evidence shows that the plaintiff began her campaign to get Heinbaeh’s property before she was acquainted with him; before the marriage she made inquiries concerning him and how much property he had; she sought the acquaintance with Heinbaeh, and their first meeting was by her arrangement. And later she wanted a will made and wanted all of Heinbaeh’s property willed to her, and engaged and employed John Hinkson to talk to Heinbaeh and to get him to make a will in her favor and offered to give him two of the best lots. Hink-son undertook this job and talked to Heinbaeh. All of Heinbaeh’s property is willed to her; she makes all arrangements for working the will; she selects the scrivener and pays him; she selects the witnesses and arranges the time and place for making the will; she is present at the time and place of the making of the will — perhaps not in the .immediate room at the time, hut there all the morning with him alone. Heinbach, the evidence shows, is in a passive, negative and listless condition and intoxicated to some extent, at least. (4) The court committed reversible error in admitting in evidence the divorce decree over the objection of defendants. Hughes v. Rader, 183 Mo. 714. (5) The court committed reversible error in admitting in evidence the certificates of acknowledgement to certain leases. (6) The court committed reversible error in admitting the evidence as to the mental capacity of Heinbach, because said witnesses had not qualified. (7) The court committed reversible error in permitting C. E. Perkins, over the objection of the defendant, to testify that Heinbach comprehended and had sufficient mind to comprehend who his children were and that he had sufficient mind to understand the nature and extent of his property and to whom he desired to give it. (8) The will itself was erroneously admitted in evidence. Its due execution was not shown. Miltenberger v. Miltenberger, 8 Mo. App. 306, 78 Mo. 27; Odenwaelder v. Schorr, 8 Mo. App. 464; Berst v. Moxom, 157 Mo. App. 348; Craig • v. Craig, 156 Mo. 358; Bell v. Smith, 197 S. W. 128; Lamb v. Helm, 56 Mo. 432, Benoist v. Murrin, 48 Mo. 48. (9) Instruction 5, given by the court at the request of the respondent, was erroneous. It singled out and emphasized the .testator’s right to disinherit his children. Its effect was to mislead the jury into assuming that the justice or injustice of the disposition made by the will had nothing to do with the issues on trial and that the children had no natural call upon their father’s bounty. Gray v. Gilliland, 92 Mo. 264; Wend-ling v. Bowen, 252 Mo. 688; Mowry v. Norman, 223 Mo. 470. (10) Instruction 6, given by the court at the request of the respondent, is erroneous. It purports to cover the whole case, and assumes that the alleged will was duly executed. It assumes a vital disputed fact. It is peremptory on such issue. State ex rel. v. Morrison, 244 Mo. 212; James v. Mo. Pac.'Ey., 107 Mo. 480.

      Charles E. Bendlen, Pearson & Pearson and F. W. Neeper for respondent.
    (1) Opinions of nnsonndness predicated on a state of facts that do not show incompetency amount to nothing and give no force to snch facts. Winn v. Grier, 217 Mo. 449; Crowson v. Crowson, 172 Mo. 700; Sayer v. Westminster College, 192 Mo. 128; Sehr v. Lindeman. 153 Mo. 288; Eiley v. Sherwood, 144 Mo. 354. (2) The law requires something more than mere indefinite gener-alties to destroy or overcome the presumption of sanity. McFadden v. Catron, 138 Mo. 1'97; Eiggin v. Westminster College, 160 Mo. 570; Hughes v. Eader, 183 Mo. 705. (3) This court has held in this case, upon the same evidence offered or given in the present case, that the question of undue influence was properly out of the case. Heinbach v. Heinbach, 262 Mo. 80. (4) The statute provides for the introduction of certificates of acknowledgments in connection with the written instruments. Sec. 2818, E. S. 1909; Bargee v. Bank, 204 Mo. 2!9l7; Albright v. Stevenson, 227 Mo. 340'; 1 Corpus Juris, sec. 266, p. 886. Appellants complain that the giving of respondent’s instruction 5 was erroneous. A similar instruction to this was approved in the cases of: Moore v. McNulty, 164 Mo. 119'; Hughes v. Eader, 183 Mo. 710; Maddox v. Maddox, 114 Mo. 47; Farmer v. Farmer, 129 Mo. 539; Aylard v. Briggs, 145 Mo. 612. This fact, the formal execution of the will as to signatures of Samuel Heinbach and the witnesses thereto, 'in the manner required by law having been established by undisputed evidence, it was not error on the part of the court to give respondent’s instruction 3, taking this issue from the jury. Teokenbrock v. McLaughlin, 209 Mo. 538; Southworth v. Southworth, 173 Mo. 66, 74; Hughes v. Eader, 183 Mo. 700; Orcutt v. Century Blgd. Co., 214 Mo. 53; Phelps v. Zinc. Co., 218 Mo. 580; Cahill v. Chicago & Alton, 205 Mo. 407; Davidson v. Trust. Co., 211 Mo. 359; Stroblier v. Transit Co., 203 Mo. 714. (a) In a will contest it is not essential to introduce all the witnesses attesting the execution of a will, and it is not error to fail to introduce the two attesting witnesses. One subscribing witness is sufficient to prove the execution of the will by himself and othera in a suit to probate a will in solemn form. Lorts v. Wash, 175 Mo. 503; Avaro v. Avaro, 235 Mo. 429; Graham v. O’Fallon, 4 Mo. 608; (Graham v. 0’Fal-lon, 3 Mo. 510; Cheatham v. Hatcher, 32 Am. Rep. 650, 30 Gratt. 56; Ward v. Wilcox, 51 Atl. (N. J.) 1094; Pollock v. Glassel, 2 Gratt. (Va.) 439; Harper v. Wilson, 2 Marshall (Ky.) 467. (b) Appellants in their answer admitted the formal execution of the will, (e) Appellants admitted the will’s execution by testator in the trial.
   WHITE, C.

This action was brought in the circuit court of Ralls County by the widow of- Samuel Hein-bach to establish his will, it having been rejected by the probate • court. The defendants are the children of Samuel Heinbach by a former marriage. The will was formally executed September 7, 1909; Heinbach died in Ralls County January 3, 1910.

This is the second appeal of this case. Its determination on a former appeal is reported in 262 Mo. 69. On this appeal it presents entirely different questions for solution.

The deceased, Samuel Heinbach, married his first wife, Sarah, at Richmond, Indiana, in 1872-, Of this marriage three, children were born — the defendants in this case. Some time about 1880 or 1885 he left his family in Indiana and came to Pike County, Illinois, where he was employed as farm-hand and wood-chopper. ■ His wife and the two children they then had came to him and for a time lived with him in a cabin in the river bottom on the Illinois side; afterwards they lived for a short time in Hannibal, Missouri. Later, with his familv, he returned to Cambridge, Indiana, where he stayed for some time. He left them again and came back to the Mississippi River bottom and engaged on the Missouri side in a sort of partnership with one Johnson in chopping wood. The two bought a tract of

land of fifty-two acres in Ralls County, a few miles south, of Hannibal. This land later was partitioned equally between the two by verbal agreement, which after-wards was ratified by deeds. This happened some time in the middle eighties. Heinbach lived on his half until his death in 1910.

In 1901 a cement plant was erected upon the land adjacent Heinbach’s tract, the town of Ilasco sprang up there and spread out over Heinbach’s land, mating it very valuable. Without filing any plat he laid off his ground in lots and rented out those lots to various persons who built on them. This ground rent amounted to more than a hundred dollars a month — a princely income for him. It probably was this unaccustomed affluence which led to his ruin. He always had a weakness for strong drink, and the testimony shows that from the time the cement plant was established until his death, nearly ten years later, he was almost constantly drunk.

His first wife, back in Indiana, married again about 1896, without troubling herself about first divorcing him. Heinbach, probably in ignorance of that event, procured a divorce from her in 1906, in Ralls County, and married the plaintiff in- the early part of 1909.

The defendants in their answer allege mental incapacity to execute the will, and undue influence. The issue of undue influence was removed from the consideration of the jury by instruction, leaving only the issue of mental capacity for their consideration.

A great number of witnesses were introduced and their testimony fills a record of more than 1200 pages. Every incident which could be found to throw light upon Heinbach’s capacity was described in the evidence. His entire life was lighted up as with Roentgen rays, and exposed to the scrutiny of the jury. The doctors who attended him in sickness, the lawyers who transacted business with him for other people, those who leased lots from him and paid him rent, the nurse he had, his housecleaner, washwoman, butcher, fish peddler, those who sold him vegetables, and groceries, and tobacco; those whom lie worked for, those who worked for him .and with him; those who sold him drink and those who got drank with him, were drawn npon without limit to tell what they knew about his habits and characteristics. In the neighborhood of forty witnesses who had known him and had more or less important business transactions with him testified that they thought him sane at the time of signing the will. A much smaller number, -less than half, testified that in their opinion he was insane. It was shown that he was drunk a great part of the time; that he was .of extremely filthy habits, due to an unfortunate ailment which made him a very repulsive object; that he went about the streets in a condition which was very disgusting; that he had • visions of a white horse which was going to ride across his possessions in Ilasco. The account given by the witnesses of that matter leaves one in doubt as to whether the white horse, as he spoke of it, was an apparition or a figure of speech.

Fifty or sixty specific business transactions were detailed by the witnesses, in addition to statements by storekeepers and others who testified that they dealt with him at times. Some fifty or sixty leases executed by him upon the various vacant lots into which his land was divided, were introduced. These leases bore dates extending from 1905 to 1909. Ten of them appear to have been executed in 1909, nine of them in 1908, and others in prior years. The holders of a number of these leases were • introduced as witnesses to testify to the circumstances under which they procured them. Their testimony tended to show that Heinbach carried the numbers of his lots in his head, that he knew what he was doing when he leased the ground, and when he conducted other business matters mentioned in the testimony. It was shown that he refused to sell his land though often importuned to do so. It appeared that he knew his weakness and was afraid he would squander the proceeds of any such sale.. He refused to transact business when he was drunk and always would defer any business matter which might he presented to him until a time when he would he sober. No business transaction was mentioned by any witness, so far as we could discover in the record, and none is pointed out to us by the appellants, in which the testator failed to understand the nature of the transaction. One of his physicians testified, and was corroborated by an expert or two, that he was suffering from alcoholic dementia which so impaired his mental powers that he was unable to know that he was making his will. This doctor’s testimony was to a certain extent discredited by witnesses who testified that the same doctor had stated on several occasions that Heinbach was sane. Another physician . testified that he was perfectly sane and capable of transacting the business under consideration. He had employed at time three different real estate agents to collect his rents and transact his other business. Whether this was on account of his knowledge of his inability to transact business or his desire to be free to get drunk when he wanted to or his general physical incapacity, is not fairly shown.

One of the witnesses to the will testified for the plaintiff. The other was not called. The scrivener who wrote the will testified for the defendants and his testimony tended to show a very clear understanding by the testator of what he wanted to do with his property and a perfect knowledge of those who had claims upon his bounty.

The verdict of the jury at the first trial was that the instrument under consideration was not Heinbach’s will. This court reversed the judgment on account of an erroneous instruction. On the last trial the verdict was the other way — to the effect that the instrument was his will; that judgment was appealed from and.is the matter before us here. .

I. Complaint' is made of the rulings of the trial court in excluding evidence tending to show undue influence, and in the giving of a peremptory instruction to the jury withdrawing that issue from their consideration. It is claimed that the evidence offered on the last trial was stronger as tending to show undue influence than that offered on the first trial, which this court held on the former appeal was insufficient to submit that issue to the jury. The evidence not being fully set out in the former opinion, we are unable to make the comparison. Suffice to say that the evidence offered and excluded, taken together with all the evidence admitted which it is claimed tends to prove undue influence, is insufficient, according to . the ruling of this court, to submit that issue to the jury and the peremptory instruction was proper. [Gibony v. Foster, 230 Mo. l. c. 136-7, and eases cited.]

The most that can be said of the testimony excluded is that Mrs. Heinbach sought the marriage with the old man because of his money. That she discharged the duties of a good wife, that his appearance and habits* were much improved by the marriage, and that he entertained a true affection for his wife appears without dispute. No evidence, direct or circumstantial, was offered tending to show that she did anything or said anything which had any tendency unduly to influence Heinbach in making the disposition of his property which he made. The remarks of the court in the Gilbony case upon the point, at the pages cited, are pertinent.

II. The decree of divorce which Heinbach obtained from his first wife in 1906 was admitted in evi-denee. It was objected to on the ground thai it was res inter alios acta, and the ruling of the court in admitting it is assigned as error.

It was competent for the purpose of proving the fact that the deceased had been divorced from her. His children by that wife were parties defendant. It would tend to explain the present relation which he sustained to them, and throw light upon the reasonableness or unreasonableness of his bequests, and thereby his mental capacity. Any fact touching Ms relation to defendants was admissible.

III. A large number of leases extending over a period of several years, from 1905 until tlie death of the decedent in 1910, were offered in evidence,- the leases themselves were not objected to, but the defendants objected to the certificates of acknowledgment which were attached to them. These were admitted over their objections, and the ruling is claimed to be error.

The certificates of acknowledgment were admissible for the purpose of showing that the leases were executed. The leases themselves would prove nothing as to the business transactions or negotations conducted by the deceased unless it was shown that he executed them, and the acknowledgements were .admissible for' that purpose. [R. S. 1909, sec. 2819 ; Barbee v. Bank, 240 Mo. l. c. 306.] It would have been proper to instruct the jury that the certificates were admissible only for that purpose, but no such instruction was asked.

VI. Proof was offered and some evidence admitted over strenuous objection by defendants, to show that buildings and improvements were erected on the lots which deceased had leased to various persons. It was shown without objection that Heinbach had leased a great many lots on his tract of ground, the leases being introduced. Numerous witnesses who had leased these lots related the circumstances attending the transactions of making the leases, and in that connection it appeared that these persons were in various kinds of business and had buildings on these several lots. Such buildings were sold from time to time and in each case Heinbach had been asked about and had consented to the transfer of the lease to the purchaser; so the existence of- such improvements on various lots was before the jury without objection, and we cannot see that additional specific statements that improvements were made would add anything to that fact, if it were incompetent.

Y. Error is assigned to the rulings of the trial court in excluding the testimony of several witnesses for defendants. The questions which these witnesses were not permitted to answer are of two general classes: One kind sought the opinions of the witnesses as to Heinbach’s sanity, anc| the other kind called out the conclusions of the witnesses as to certain facts. Of those witnesses who were not permitted to state their opinions as to sanity in answer to direct questions, some had had no talk with the decedent and had not heard him talk under circumstances such as would make them competent to judge whether he was sound or unsound mentally. One witness was asked whether witness was of sound or unsound mind, and when he answered that deceased was weak-minded and easily influenced, his answer was strikeñ out as not responsive to the question. Other witnesses were not permitted to give opinions as to whether Samuel Heinbach was of sound or unsound mind when they never had heard Hein-bach talk on any subject. Others did not qualify because they said Heinbach was drunk when they tried to talk to him and they never succeeded in carrying on a conversation with him.

Of questions of the other kind, in some cases a general statement was ruled out, hut witness was allowed to tell the same thing more specifically. For instance, when one witness, Dora Doyle, said ‘/he never talked like he had much sense to his talk,” the statement was striken out; hut the same witness was immediately allowed to answer the question in this way: “I don’t recollect what he said because I don’t remember, but he would say one thing that had no connection and jump off on something else.”

One witness, William Hascall, was not allowed to answer the question as to whether Heinbach, the last few years before his death, could carry on a connected conversation, but when asked to describe his manner of talk he answered: “It would be .just drunk talk, he would try to talk and couldn’t.” Mrs. Iva, Lee said: “He would sit there and mutter and I couldn’t get any sense out of it.” This was stricken out, but when asked if she could describe his manner of talk, immediately she answered, “No sir, just mutter, I couldn’t understand him; that is all I know,” and this was allowed to stand.

Other witnesses were not allowed to answer when asked about Heinbach’s hallucinations and imaginings. They were required to state the facts as to what Hein-bach said and this they accordingly did.

In no case was any fact as to Heinbach’s demeanor, or touching upon his capacity, excluded from the testimony. Witnesses were permitted to go into detail in relating all the particulars of his life, his method of transacting business, and his habits, and their conclusions as to his sanity were ruled out only where they had neither had business transactions with him nor witnessed business transactions of his.

The court was not in error- in ruling upon this evidence.

VI. Associated in principle with the point considered in the last paragraph, the appellants assign error to the admission of the testimony of twenty-three witnesses who testified for the plain-tift giving their opinions as to the sanity of the deceased, the objection' in each case being that the witness had not qualified. The court followed a consistent line in ruling upon this character of testimony and was somewhat liberal to both sides in the matter. An opinion as to the sanity of the deceased was permitted to be stated by any witness for either side who had qualified by showing that he had had business dealings with him or had witnessed his ' business transactions, and excluded all who had not conducted or witnessed any business dealings of his. All the twenty-three witnesses whose testimony was admitted and objected to, as stated, bad bad business transactions with him, some of them extending over a period of many years, excepting two or three, and these two or three had seen him when engaged in some business transactions. The court did not err in overruling the objections to this testimony.

VII. Counsel for appellant set out the testimony of several witnesses which was admitted and claim there was error in such admission. In some of these instances the record shows no objection was made and no exception saved. In others - the objection was that the question was “not proper,” or, “incompetent, irrelevant and has no bearing on the ease and an improper method of showing mental condition.” Objections to evidence of this character must state the specific grounds of the objection, otherwise the alleged error will not be reviewed. We could not convict the trial court of error in refusing to sustain an objection expressed in such general terms. [Springfield v. Owen, 262 Mo. 92, l. c. 104; State ex rel. v. Diemer, 255 Mo. 336, l. c. 346-51.]

To certain questions and answers, however, the objection was sufficiently specific, as follows:

“Q. Mr. Perkins, at the time this transaction was occurring, at the time you were there, I will have you state whether or not Mr. Heinbach comprehended and had sufficient mind to comprehend who his children were? A. Yes sir.
“Q. I will ask you whether or not he had sufficient mind to understand the nature and extent of his property and to whom he desired to give it? A. He did. ’ ’

The witness was one of the witnesses to the will and had described the circumstances surrounding the signing and attestation of the will.

The objection to this testimony is different from that considered in the preceding paragraph, where the objection was tliat the witnesses were not qualified. It was conceded that a witness, if properly qualified, might give an opinion. The objection here is that the questions called for conclusions of the witness and no objection is made that he was not qualified.

Opinions of non-expert witnesses often are treated with scant consideration by the courts. While they are admissible under certain circumstances, it is often said that they are of no probative force unless the witness qualifies by showing he knows sufficient facts from which to draw his conclusions. [Crowson v. Crowson, 172 Mo. 691, l. c. 702; Gibony v. Foster, 230 Mo. 106, l. c. 132-3; Winn v. Grier, 217 Mo. 420, l. c. 450; Wood v. Carpenter, 166 Mo. 465, l. c. 487.]

Whether such opinions may be received at all depends upon the nature of the facts from which they are drawn. A non-expert witness may give his conclusions or deductions when the matter is one which a witness of ordinary intelligence can understand, and such conclusions or deductions of the witness are based upon facts which are incapable of being properly or accurately described by the witness to the jury. If the witness, clearly and accurately, can give the facts upon which he might base a conclusion, then it is for the jury to draw the conclusion, and the opinion or deduction of the witness is improper. The witness is required to qualify and show that he knows the facts from which he draws his conclusion and must state them as far as he properly can, and if the circumstances are such that they are not susceptible of complete and accurate portrayal before the jury, the witness may state his conclusion, “the inference being an equivalent to a specification -of the facts; ... in other words, when the opinion is a mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.” [Rearden v. Railroad, 215 Mo. l. c. 137; Conn. Mut. Life Ins. Co. v. Lathrop, 11 U. S. 612, l. c. 620; Partello v. Railroad, 217 Mo. 645, l. c. 656; State v. David, 131 Mo. 380, l. c. 395; State v. Bueliler, 103 Mo. 203, l. c. 207; Kirchof v. United Ry. Co., 155 Mo. App. 70, l. c. 83-4; Fulton v. Met. St. Ry. Co., 125 Mo. App. 239, l. c. 246; Duthey v. State, 131 Wis. l. c. 187; Lewis v. Mason, 109 Mass. 169, l. c. 174; McKee v. Nelson, 15 Am. Dec. 384, l. c. 385; State v. Rumble, 81 Kan. l. c. 18 ; Bacot v. State, 96 Miss. l. c. 129.]

As said in Connecticut Mutual Life Insurance Co. v. Lathrop: “In form, it is opinion, because it expresses, an inference or conclusion based upon observation of the appearance, manner, and 'motions of another person, of which a correct idea cannot well be communicated in words to others, without embodying, more or less, the impressions or judgment of the witness.”

In Kirchof v. United Rys. Co., 155 Mo. App. l. c. 83, the court said: “Even non-expert witnesses are permitted to state their conclusions of fact as facts where the basic facts are of such nature that they cannot be reproduced to present to the jury the picture impressed on the mind of the witness. The impression or conclusion becomes an evidential fact.”

And this court in State v. Buchler, 103 Mo. l. c. 207, said: “Witnesses are allowed to testify to their impressions or opinions on such matters, for want of any .other way to get the evidence before the jury; they admit of no more definite proof.”

In this ease the witness had known Heinbach for three years and during that time had seen him every day and sometimes twice a day; he conducted a store at which Heinbach bought tobacco. The will of deceased had been read in his presence and that of the two witnesses, and in the will the children all were mentioned— two of them by name and the other identified, the .name being unknown to the testator; the will disposed of all of his property to his wife, except the nominal bequests to his children. ° The innumerable details and incidents which constituted the expression and demeanor, the attitude and actions of Heinbach, all of which went to make up the impression to which the witnesses testified, could not he translated into description language. The only- way the witness could say it was to give his conclusion, as it was given. ITe had sufficient data from which to infer that the deceased knew who his children were and the extent of his property. We think the testimony was competent under the rulings quoted ah.ove.

Appellants are hardly in position to say, now, they were harmed by those questions and answers because immediately they introduced the scrivener who wrote the will and proceeded to prove by him that the testator did in fact know who his children were and what he wanted to do with his property.

Yin. Appellants strenuously assert that the will itself was erroneously admitted in evidence, arguing that its execution was not sufficiently proved for the reason that only one attesting witness was sworn at the trial and the absence of the other not accounted for; and further, that the regular formalities in the execution of the will were not proved even by the witness who did testify. It has been held repeatedly in this State that a formal request by the testator to the witness to sign the will and a formal declaration that it is a will, are not necessary. It is only necessary that the parties understand that he intends it to be his will, that he expects the witnesses to' sign it as such, and that he and the witnesses sign it in the presence of each other under circumstances showing that they all understand the purpose and effect of the instrument. [Martin v. Bowdern, 158 Mo. 379; Hughes v. Rader, 183 Mo. 630; Carlson v. Lafgran, 250 Mo. 527; Thomas v. English, 180 Mo. App. 358, l. c. 365; Southworth v. Southworth, 173 Mo. 59.] It also frequently has been held that the execution of the will may be proved by one of the subscribing witnesses and that both are not necessary for that purpose. [Avaro v. Avaro, 235 Mo. 424, 1. c. 429; Lorts v. Wash, 175 Mo. l. c. 503; Craig v. Craig, 156 Mo. l. c. 363.]

There are some cases which indicate that one witness is insufficient to establish a will unless the absence of the other witness is accounted for. In this case, as stated, only one witness to the will testified, though the record, shows that the other witness was in the court-room at the time. The attorneys for respondent say in their brief that the other witness, on the former trial, swore the testator was not of sound mind at the time he executed the will, in direct impeachment of his attestation. It is claimed also that that witness was instrumental in working up the case in behalf of the defendants. That matter is not in the record.

Those cases which indicate that one witness is insufficient are where there is no other- testimony and the absent witness unaccounted for. The purpose of the witness on the trial is to prove the will was executed. That proof might be made without the presence of either of the subscribing witnesses; or, even if they both were present and swore that the will was not properly executed, it still might be proved by other sufficient testimony. In this case the only subscribing witness who testified, swore that Mrs; Heinbach re-questioned him to go to the house for the purpose of- attesting the will, and he did so with the other witnesses; that the scrivener was there and requested 'them to return in an hour, during which time he was preparing the will. The two witnesses returned and the will was read in the presence of the testator and the two witnesses ; then it Avas signed by the testator and the two Avit-nesses, and retained by the scrivener who took it away Avith him.

If this testimony was insufficient to prove the formal execution of the will, the defendants, instead of standing upon their objection to it, supplemented it by introducing the scrivener who wrote it. He was requested, he testified, by Mrs. Heinbach to go to the house and he arrived there with the two witnesses. He asked Mr. Heinbach on what business he had sent for him. The testator replied that it was to prepare Ms will. The witness then asked Heinbach how he wanted the will made, what disposition he wanted made of his • property, and he replied he wanted to make it all to his wife. Witness asked him then if he had any children. He said he had three, and ga,ve the names of two, and stated he did not know the name of the third, who was probably born after he left his wife, and it was written in the will that way. The witnesses soon returned and one of them asked to have the will read. The scrivener read it in the presence of Heinbach and the two witnesses and threw it on the table. At this point the evidence of the witness is peculiar. He didn’t see anybody sign it. Whether he left the room, or turned his back, or shut his eyes, or was for a moment afflicted with a spasm of insensibility to his surroundings, he does not explain, but presently he picked up the will and it was signed by the testator and each of the witnesses. He was certain the signature of Hein-bach, and that of the witness Wilson, were genuine; he didn’t know the handwriting of Perkins (who had just testified that he signed it). He put the will in an envelope, sealed it and retained it until after the death of the testator. He testified that he knew nothing about the family of Heinbach before he went there and obtained all information regarding the children from .Heinbach. He stated that he didn’t ask anything about Heinbach’s property because he knew all about it already. Under these circumstances the proof of the formal execution of the will was entirely sufficient to admit it in evidence. [See Carlson v. Lafgran, 250 Mo. l. c. 535.]

Another reason why appellants are not in position to urge that the will was - not admissible in evidence appears in their answer, as will be seen in considering the next objection.

IX. The same in principle as that last considered is the objection to instructions 6 and 7, given for plaintiff, which told the jury that if Heinbach knew and understood the nature and extent of Ms property and what disposition he was mak- ■ ..ing of it, and to whom he was giving it, and who were the natural objects of his bounty, then they were to find in favor of the validity of the will.

The objection to these instructions is that they assume that the will was formally executed, and limit the consideration of the jury to the one issue of mental capacity of the testator.

The jury were limited to that issue by a further specific instruction, number three, for plaintiff, which told them the instrument read in evidence was formally executed as to the signatures of Samuel Heinbach and the witnesses, in the manner required by law. This last mentioned instruction could not mislead the jury by allowing them to infer that the will was legally and intelligently executed. Other instructions for both plaintiff and defendants set forth what they must find in order to declare the instrument Heinbach’s will; the real issue submitted could not be mistaken. The instructions for defendant defined the capacity necessary on the part of the testator to make the will and in the same terms as those used in the instruction given on behalf of the plaintiff, and required the proponents of the will to prove that the testator possessed such capacity before they could find that the instrument under consideration was his will; exactly the converse of plaintiff’s instructions.

Another instruction given on behalf of defendants placed the burden of proof upon the plaintiff and called the attention of the jury to what particular facts plaintiff must prove by the greater weight of evidence before they can find the issues for the plaintiff.

The instructions given for plaintiff and those given for defendant are entirely in accord and harmonious upon the issue, and the only issue, presented to the jury, and agree exactly in the terms used to define that issue.

So it is only necessary on this point to determine ■whether the court was right in’ confining the inquiry to the question whether Heinbach had sufficient mental capacity to make a will, and removing from consideration the matter of its execution, as to form and attestation.

What we have said under the previous paragraph seems sufficient to settle the point. The defendants themselves in aid of plaintiff’s witness, proved by the scrivener that it was in fact signed and witnessed in due form, and no evidence of any kind was offered to contradict that testimony.

However, there is another entirely sufficient reason why that issue was foreclosed to the defendants. The answer of defendants, after admitting that “a certain instrument purporting to be the last will and testament of the said Samuel Heinbach” was filed for probate and rejected by the probate' court, and denying general allegations of the petition, alleges:

“That said paper writing is not the last will and testament of said Samuel Heinbach, deceased, but that the sarnie idas made at a time when the mind of deceased was impaired by old age, disease, physical suffering and bodily decay and dissolution, and by the use by deceased of strong drugs, medicines, stimulants and intoxicating liquors, so that he had no knowledge or un•derstanding of what he was doing1 at the time he was induced, as hereinafter stated, "to go through the form of executing said purported will.”

The answer then alleges' that at the time said writing was purported to have been executed, the mind of deceased was impaired so that he was incapable of understanding or appreciating/'w7mi disposition he had made or was malting of his affairs therein, and that he did not comprehend or understand its meaning, or effect.” And further: “That the plaintiff, knowing the exact condition of said Heinbach’s mind at said time, by coercion, threat, duress, fraud and over persuasion dominated the mind of said Samuel Heinbach and pre vailed upon and coerced his making a mil in her favor, and to the total exclusion of the children of said deceased, who were horn of a prior marriage of said deceased, and that said pretended will is the result and product of said fraud, coercion, threats, dnress and over persuasion so practised upon said Samuel Hein-bach by plaintiff and is not the will of deceased.”

It certainly never occurred to ..the pleader that there was an issue as to whether the will was signed and properly witnessed. Otherwise he would not have expressly admitted that deceased went “through the form of executing the purported wilt,” or “that the same was made,’’ or that plaintiff “prevailed upon and coerced his making a ^vill in her favor.’’

If words mean anything the formal execution of the will is admitted, asserted and reiterated. To “make a will” is to execute it. The common understanding of the words “making a will” is the writing, signing and attesting it in due form. The words “execute” and “execution,” as applied to instruments of writing, mean more than merely signing them. A deed or contract is not 'executed when it is signed, it must also he delivered before it is executed. [3 Words and Phrases, 2558; Copying Co. v. Muleski, 138 Mo. App. l. c. 423.] A will is not “executed” until all the formalities prescribed by the statute are complied with. [Linton’s Appeal, 104 Pa. St. 228, l. c. 239; Sec. 537, R. S. 1909.] This section of our statute provides that a will shall he in writing, signed by the testator and attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. It is not executed until all that is done.

So when the answer .m'akes those allegations, and assigns, as the only reasons for the invalidity of the will, undue influence and the inability of the testator to understand what he was doing, that is an admission that the signing and witnessing of the will were in the form required by the statute. The allegations effectually removed from the consideration of the court and jury all defects in its execution except the alleged want of capacity.

X. Error is assigned to the giving of instruction numbered 5 which told the jury that Samuel Heinbach had a right to dispose of his property by will as he chose, even to the exclusion of his near-es^ re^a^ves) an<i the mere fact that the jury might believe the disposition unjust and unfair would not justify them in finding that it was not the last will of Samuel Heinbach. An instruction in this identical form was approved by this court in Moore v. McNulty, 164 Mo. l. c. 119. The instruction does not single out facts, but is a general statement of the law as fully recognized by this court. [Hughes v. Rader, 183 Mo. l. c. 710; Farmer v. Farmer, 129 Mo. 539.]

XI. While counsel for plaintiff were arguing the case to the jury, defendants’ counsel interposed numerous objections to the remarks made; in each . , .. .... . . ./ . , instance the objection was sustained. Appellants assign as error the failure of the court sufficiently to rebuke the orator in each instance. An examination of those remarks shows that some of them were entirely within the limits of proper argument, and in none of them did the attorney persist in arguing against the court’s ruling so as to require a rebuke, and as the record shows the incidents the simple sustaining of the objections probably left the matter as harming the plaintiff more than the defendant.

The case was tried with consummate ability and industry. It was fought through with pertinacious and aggressive determination on both sides, and fairly and impartially managed by the trial judge. There is no reason why the verdict of the jury should be disturbed.

The judgment is affirmed.

Boy, G., not sitting.

PER CURIAM: — The foregoing .opinion by White, C., is adopted as the opinion of the court.

All of the judges, concur.

FARIS, J.

(concurring) — I concur in tlie result reached in this case, hut I do not agree that either a lay witness, or an expert witness, may express an opinion as to the qucmtim of the alleged insanity with which the person whose mental condition is the subject of the judicial inquiry, is, or was afflicted. That is, such a witness will not be permitted to say that the insanity of the testator was such as to destroy his testamentary capacity, or to render the testator incapable of comprehending and understanding the several elements by which such capacity is tested. Conversely, the witness will not b.e permitted to say that the testator was mentally capable of making a will, or that he comprehended and understood the specific elements mentioned in the questions propounded.

I put my concurrence touching this point upon the ground that the objection made, upon this specific phase, to the introduction of this erroneous testimony was not sufficiently explicit to call the attention of the trial court to the vice thereof. A witness is not to be permitted to express an opinion upon the questions directly in issue, and thus invade the province of the jury. Herein, it was for the jury to find whether the testator had sufficient memory and mental capacity to comprehend who his children were, to understand the nature .and extent of his property and to know to whom he desired to give it. [Deiner v. Sutermeister, 266 Mo. l. c. 522 ; State v. Klinger, 46 Mo. 224; Kane v. Railroad, 251 Mo. 13; Castanie v. Railroad, 249 Mo. 192; 17 Cyc. 238; Thomasson v. Hunt, 185 S. W. l. c. 167; May v. Bradlee, 127 Mass. 414; Runyan v. Price, 15 Ohio St. 1; Schneider v. Manning, 121 Ill. 376; Marshall v. Hanby, 115 Iowa, 318.] The comprehension inquired about and the capacity to know and understand the nature and extent of a testator’s property and to whom testator desires to give it'are chief among the ultimate tests of testamentary capacity, and these elements comprised practically the whole of the issues required to be found by the triers of fact.

It must • be conceded, of course, that broadly, the issue of insanity vel non in a will contest, is one of the issues to be passed on by the triers of fact, and that the opinion which the law permits a lay witness to give touching this issue ordinarily constitutes an invasion of the jury’s province. But the practice of offering such opinions is now firmly fixed and well settled. We excuse such an invasion of the jury’s province by limiting the opinion of the witness to the fact of insanity; leaving to the jury to find the quantum thereof, and whether such quantum is sufficient to destroy the testamentary capacity of the testator.

In my opinion the questions asked violated the rule stated, and the answers thereto would have constituted reversible error if the point had been preserved by a proper objection. I concur in the result therefore.

Walicer, P. J., and Williams, J., concur in these views.


source: Caselaw Access Project

author: ROY, O.

license: Public Domain

text:
    MRS. S. E. McMIENS, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS.
    Division Two,
    April 26, 1918.
    1. NEGrEIGEITCE: Custom: Stopping Car. A pedestrian who attempted to cross the track in front of an approaching street car, on the theory that it would stop before it reached the path which skirted the platform and along which she was hurrying for the purpose of boarding the car, must produce evidence that it was customary for the car to stop before projecting its front end into the path, in order to recover for the injuries received when it struck her; and to establish a custom that cars stopped before reaching the path it must be shown to have been general, uniform, certain and notorious, known to her or so general and universal that knowledge will be presumed.
    2. -: -: -: Intention to Stop. Even though it was customary for street cars, in stopping for passengers at a certain platform, to stop before they reached a certain path crossing the track, along which path a pedestrian was hurrying in order to board án oncoming car and was struck, she cannot recover if there was no one on the platform and there is no evidence that the car was intending to stop at the point at all.
    3. -: Humanitarian Doctrine: Anticipation. There is no room for the humanitarian doctrine in a case, in which a pedestrian seeks to recover for injuries received as she was attempting to cross the track in front of an oncoming street car, if there was no reason to anticipate that she would get too close to the track.
    Appeal from the St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    AFFIRMED.

      Fcmntleroy, ■Cullen & Hay for appellant'.
    (1) It was error to give defendant’s instruction numbered 2. (a) Plaintiff bad a right to presume that the motorman would stop the car, as such cars were customarily stopped, and that he would not allow it to be run beyond the platform • so as to endanger her. Scott v. Met. St. Ry. Co., 138 Mo. App. 201; Percell v. Railroad, 126 Mo. App. 44; Lawson v. Met. St. Ry. Co., 40 App. Div. 307; Franlc y. Met. St. Ry. Co., 58 App. Div. 100; Zimmerman v. Union Railway Co., 3 App. Div. (N. Y.) 219; Brozek v. Steinway R. Co., 10 App. Div. (N. Y.) 360; Dunican v. Union R. Co., 39 App. Div. (N. Y.) 497. (b) Biy instruction numbered 2, the jury are told that if she knew the car was approaching (wherever it was and however it was, and although she was entitled to presume it would stop, before reaching the east end of the platform), then as a matter of law plaintiff was negligent, in getting on the track at all. This is palpable and fatal error. Laurent v. United Rys., 191 S. W. 992.. (2) It was error to give instruction iiumbered 3, which told the jury that if she knew the car was approaching and could by the exercise of ordinary care have remained off of the' track, then she was not entitled to recover. As to this unique, ludicrous, but fatally harmful, instruction, the doctrine of res ipsa loquitur should apply. The thing (certainly) speaks for itself. (3) It was error to give the instruction on the credibility of witnesses here, where there was not only no effort at impeachment, but no contradiction of any witness. Keeline v. Sealy, 257 Mo. 498 ; Price y. Bldg! Co., 191 Mo. App. 404. .

      T. E. Francis and Thomas Bond for respondent.
    (1) The demurrer to the evidence should have been sustained, (a) Because there being no duty on the part of respondent to stop the front end of the car at any particular point, there was therefore no negligence in running same beyond the east end of the platform, (b) Because' the evidence is insufficient to establish a custom to stop the front end of the car west of the east end of the platform, so general, uniform, certain and notorious as to constitute a rule of conduct upon which appellant could rely in knowingly going in front of a moving car. Shields v. Sub. Belt Ry. Co., 87 Mo. App. 643; Percell v. Railroad, 126 Mo. App. 53; Pan-key v. Railroad, 180 Mo. App. 199. (c) Because there is no evidence that under the last-chance doctrine respondent’s motorman saw appellant in a place of danger in time to have stopped the car, or otherwise have avoided the accident. Neele v. Railroad, 258- Mo. 79; Paul v. Railroad, 152 Mo. App. 783; Zurfluh v. Railroad, 46 Mo. 642; Boecker v. Railroad, 240 Mo. 521; Hamilton v. Railroad, 250 Mo. 722; McGee v. Railroad, 214 Mo. 531; Roenfeldt v. Railway, 180 Mo. 564. (d) Because appellant was herself negligent and her negligence directly contributed to her injury. Paul v. Rail-, road, 152 Mo. App. 586; Cole v. Railway, 121 Mo. App. 610; Gunn v. Belt Ry. Co., 141 Mo. App. 314; Green v. Railroad, 192 Mo. 142; Holland v. Railroad, 210 Mo. 350; Slotler v. Railroad, 204 Mo. 640; McCreery v. United Rys., 221 Mo. 31. (2) Errors in instructions are harmless where a demurrer to the evidence should have been sustained. Trainer v. Mining Co., 243 Mo. 359.
   ROY, O.

Plaintiff sued for damages for personal injuries. The verdict and judgment were for defendant, and plaintiff has appealed.

The accident occurred at the intersection of Manchester and Tamm Avenues in St. Louis. Defendant has double tracks at that point, the south track being the east-bound. South of that track is a passenger platform, with its east end about the west line of Tamm Avenue. The .latter street is not opened south of that point, except by a pathway leading across a footbridge over the river Des Peres to residence territory beyond. That path strikes the defendant’s track just east of the platform, the exact distance not being shown. As it turns west to the platform it passes alongside the defendant’s track in close proximity thereto. To what extent that path from the south is used by people passing across Manchester Avenue is not shown. From five hundred to a thousand passengers use that platform in a day.

The plaintiff, in company with two grand-daughters, who were about twelve years old, came from the south along that path, and seeing defendant’s car approaching from the west, hurried to , catch it. One of the children rushed upon the platform. Plaintiff was just turning west toward the platform when the car hit her, she evidently having got a little farther north than was safe. So far as we can ascertain from the evidence the path to the platform ran between a telephone pole and the track, there having been about thirty inches between the pole and the side of the car. It does not appear that there were any other persons waiting there for the car at that time.

Mr. Fish, a son-in-law of plaintiff, testified that he had previously waited there for the. car about a dozen times, and had frequently traveled on that line, and that, about four months after the accident, he staid there and watched seven or eight cars pass, and that it was their custom to stop with the front end of the car west of the end of the platform.

The plaintiff testified that for two years she had taken the car at that place every two or three weeks, and that she had never noticed the car come down where, it came that morning, that they usually stopped the car hack hy the platform. She further testified:

“Q. Now, as you approached this stopping place at Tamm and Manchester Avenues, state whether or not you came along this traveled way across the Frisco and the Missouri Pacific tracks that has been mentioned? A. Yes, sir; I came over the bridge and along that path.
“Q. Now, as you neared the platform, did you see a street car coming from the west? A. Yes, sir; I seen a street car coming; I was hurrying'to get it.
“Q. Now, just state what occurred from the time you noted the car coming until you were injured, in your own way? A,. Well, my one little granddaughter ran on and this other one was with me and I was hurrying on, and I went on up this path, and when I got ready to turn, just as I went to turn, the car hit me and that is about the last that I knew of it.
“Q. Now, state whether or not you anticipated or expected the car to run down beyond the end of the platform? A- No sir.
“By the Court: Were there any other persons there to get on the car at that time? A. I think there were, but I don’t know; I know my little granddaughter was up- on the platform.
“By the Court: At the usual stopping place? A. She had run pn ahead of us, the one.
“By the Court : She was at the usual stopping place to get on the ear; is that it? A. Yes, sir.”

The defendant asked an instruction in the nature of a demurrer, which was refused.

I. There was no sufficient proof of a custom of defendant to stop its cars without projecting the front end beyond the platform. The plaintiff had never noticed ^ie cars come as far as they did that morning. Certainly not; she had no occasion to notice. Mr. Fish, the only other witness, evidently had never noticed where the cars stopped, for he states that, after the injury, he stood there and watched seven or eight cars, none of which projected beyond the platform.

Give all the testimony for plaintiff full credit, and it still falls far short of what is necessary to prove a custom of the defendant to so stop its cars.

In Pankey v. Railway Co., 180 Mo. App. 185, l. c. 199, the court said:

“To make a custom effective it must be shown to have been general, uniform, certain and notorious, known to the parties or so general and universal in its character that knowledge must be presumed. [Shields v. Railway, 87 Mo. App. 637; Boyd v. Graham, 5 Mo. App. 403; Sweet v. Leach, 6 Ill. App. 212; C. M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946.]”

II. Even if it was the defendant’s custom, in stopping for passengers at that point, to so stop its cars, the evidence in this case tends to show that plaintiff and the children were hurrying to get on the platform. There is no showing that there were other persons on the platform,. The car, so far as the evidence goes, was not intending to stop there until the child rushed on the platform. The car was probably stopped at the earliest moment after those in charge of it found that it was necessary to- stop there.

There is no room in this case for the humanitarian doctrine. The car was going east, plaintiff was hurrying north and just turning west to the platform. There was no reason to anticipate that she would get too close to the track. [Keele v. Railroad, 258 Mo. l. c. 74.]

The judgment is affirmed.

PER CURIAM: — The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C.

text:
    AMELIA SWABEY v. JOSEPH A. BOYERS, Appellant.
    Division Two,
    April 26, 1918.
    1. CONTRACTS: Statutes a Part. Laws in force at the time and place of making a contract which affect its validity, performance, discharge or enforcement enter into and form a part of it as if they were expressly referred to or incorporated in it in terms. This rule, it seems, applies to every kind of contract which is the subject of statutory enactment.
    2. DEED OF TRUST: Death of Trustee: Interest of Sheriff. In the usual deed of trust, naming the sheriff as successor and authorizing him to sell in the event of the death of the trustee named, the sheriff acquires something more than a mere naked power' to sell. If that were all, it could be revoked by the grantor, or it would lapse upon the grantor’s death. In such case the sheriff acquires an interest in addition to the mere power to sell.
    3. -: -: Exercise of Power: Successor. It is not necessary, upon the death of the trustee named in the usual deed of trust, that the trust should devolve at once upon the successor. It is necessary only that the trust shall not fail for the want of a trustee. The succession may occur immediately upon the death of the trustee named, or after an interval, and is dependent not alone upon the contingency of the failure of the original trustee, but upon the further contingency of a demand of foreclosure after default. That is the evident intention of the parties to such an instrument. [Distinguishing Miller v. Bank, 235 Mo. 582, and Feller v. Lee, 225 Mo. 319.]
    4. -: -: Successor Named By Instrument: Sale by Court’s ^Appointee. The power to sell under a deed of trust is a matter of convention and contract between the parties, who are authorized to select their own trustee; and if.they in the instrument have named a successor, in case of the death of the trustee named, the court cannot, upon said trustee’s death, disregard the successor and appoint another as trustee and authorize him to execute the power, but the sale can be made only by such successor if he is available and willing to execute the trust.

      5. -: -: -: Sheriff. The habendum clause of the deed of trust was “to the said party of the second part and to his successors hereinafter designated and to the assigns of him and his successors forever,” and provided that “the said party of the second part, or in case of his . . '. death . .. . the then acting sheriff . . . may proceed to sell” and upon such sale “shall execute a deed . . . and any deed made by the trustee or his successor in pursuance to the powers herein contained, shall,” etc. Held, that the intention of the parties was that the sheriff should be the successor, and'he had the same interest and the same complete power to execute the trust as would the trustee named had he survived to the date of foreclosure; and since the trustee, and the sheriff as his successor, were vested, not with a mere naked power to sell, but with an interest and power to execute the trust, including a sale and a conveyance, the trustee appointed by the court, different from the successor named, had no power to sell.
    6. -: -: Appointment by Court. The statute (Secs. 11919 and 11920, R. S. 1909) declaring that “if any trustee in such deed of trust die” the court may appoint some one to execute the trust, does not mean that, if the deed of trust names a trustee and an ascertainable successor in case of his death, the court may appoint a trustee upon the death of the trustee named, and thereby ignore such successor, but it means that the court may appoint a trustee when no one designated as successor by the instrument can or will execute the trust.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Reversed AND remarded.

      James T. Roberts for appellant.
    In view of the fact that the deed of trust from Boyers to Kotthoff, trustee, expressly conveyed the property to “the said party of the second part, and to his successor as hereinafter designated and to the assigns of him and of his successor, forever” and further provided that “in case of his [Kotthoff’s] absence, death, refusal to act or disability in any wise the then acting sheriff of the city of St. Louis, Missouri” should execute the trust therein and thereby created, the sale by Wanstrath was made in violation of the express terms of the deed of trust and conveyed no title; and, therefore, under the agreed statement of facts, the title is still in the appellant. 2 Jones on Mortgages, sec. 1774; Bacigalupo v. Lallement, 7 Mo. App. 595; White v. Stephens, 77 Mo. 452; Hughes v. Davis, 85 S. W. 1161; Washington Co. v. Railroad, 100 Am. Dec. 710; Trust Oo. v. Fisher, 106> Ill. 189; Singer Mfg. Co. v. Chalmers, 2 Utah, 542; Dunham v. Hartman, 153 Mo. 625; Graham v. King, 50 Mo. 22; Cassaday v. Wallace, 102 Mo. 550; Polliham v. Reveley, 181 Mo. 622; Dolbear v. Norduft, 84 Mo. 619; Landrum 'V. Bank, 63 Mo. 48; Bales v. Pterry, 51 Mo. 449; Whittlesey v. Hughes, 39 Mo. 13; McKnight v. Wimer, 38 Mo. 132; Perry on Trusts (5 Ed.), secs. 602-x and 602-p; Kelsey v. Bank, 166 Mo. 157.

      O. J. Mudcl for respondent.
    (1) The court had authority to substitute Wan-strath, trustee, in place of Kotthoff, who died. R. S. 1909, secs. 11919, 11920. (2) In proceeding under these sections, the court rightly proceeds ex parte, on the affidavit of “any person interested in the debt” secured in the deed of trust, and, as no adversary proceeding is intended, no notice is required to any person. Martin v. Paxson, 66 Mo. 260'; Thompson v. Foerstel, 10 Mo. App. 290; Rothenberger v. Garrett, 224 Mo. 189; Stone v. Railroad, 261 Mo. 61. (3) The trustee is vested with the fee and has powers and rights not found in the sheriff, who is clothed only with a contingent power of sale, so that the appointment of a substitute on the death of the trustee is needed, notwithstanding the contingent power of sale in the sheriff and the authority of the latter to foreclose. Johnson v. Houston, 47 Mo. 227; Rothenberger v. Garrett, 224 Mo. 196; Chouteau v. Boughton, 100 Mo. 406; Meyer v. Hale, 17 Mo. App. 204; Miller v. Bank, 235' Mo. 530. (4) The statute is a part of the deed of trust with like effect as if its pertinent provisions had been adopted by the grantor and written into the deed. 2 Page on' Contracts, sec. 1117, p. 1739; State ex rel. v. Kent, 98 Mo. App. 281; Kessler v. Clayes, 147 Mo. App. 88 ; Daggs v. Ins. Co., 136 Mo. 382. (5) If defendant Las any grievances to "be righted, lie should have gone into equity with an offer to redeem and pay his debt. Shane-work v. Hoherecht, 117 Mo. 22; Adams v. Carpenter, 187 Mo. 613; Biffle v. Pulliam, "125 Mo. 108; Kennedy v. Siemers, 120 Mo. 86; Springfield Co. v. Donovan, 110 Mo. 423.
   WHITE, C.

The plaintiff recovered in ejectment the judgment from which the defendant appeals. -The plaintiff claims title to the land in controversy under a trustee’s deed made in foreclosure of a deed of trust executed by the defendant February 23:, 1897, of which land the defendant at that date was owner in fee. The foreclosure took place in May, 1914. The deed of trust executed by the defendant conveyed the property to Henry Kotthoff, party of the second part, in trust to secure a debt due William C. Eichlers. The plaintiff herein became the holder of the note secured and was such at the time of the foreclosure. The granting clause of the deed of trust is in the usual form and after the description the habendum- is as follows: ,

“To have and to hold the same together with the appurtenances to the said party of the second part and to his successors hereinafter designated and to the assigns of him and his successor, forever.”

The deed of trust then describes the debt, etc., and provides that “the said party of the second part, or in case of his absence, death, refusal to act or disability in any wise, the then acting sheriff of the city of St. Louis, Missouri, at- the request of the legal holder of said notes may proceed to sell,” etc., and upon such sale ‘‘shall execute a deed in fee simple.of the property sold to the purchaser or purchasers thereof, and any deed made by the trustee or his successor in pursuance of the powers herein granted, and all recitals therein contained, shall be everywhere received as prima-facie evidence of such, facts.” We haver italicised the words to which special attention is directed in the argument.

The trustee, Henry Kotthoff, died, and on May 5, 1914, upon the affidavit of the plaintiff (beneficiary in the deed of trust) stating that fact, the circuit court of the city of St. Louis appointed John J. Wanstrath trustee to execute said deed of trust. Wanstrath, as trustee, advertised the property for sale in due form and sold the same on the 29th day of May, 1914. T’fce plaintiff became the purchaser, and conveyance was made to her.

The statutes, Sections 11919 and 11920, have the following provisions relating to deeds of trust upon which respondent relies for the legality of Wanstrath’s appointment:

“Sec. 11919. If any trustee in any deed of trust, to secure the payment of a debt . . . shall die, . . . any person interested in the debt ... if it be a deed of trust to secure the payment of a debt . . . may present his or their affidavit, stating the facts of the case, specifically, to the circuit court of the county in which the property ... is situated.
“Sec. 11920: If such court shall be satisfied that the facts stated in such affidavit are true, it shall, in the case of a deed of trust given to secure the payment of a debt, or other liability, malee an order appointing the. sheriff, or some other suitable person of the county, trustee to execute such deed of trust, in the place of the original trustees; and thereupon such sheriff, or other suitable person appointed by said court, shall be possessed of all the rights, powers and authority possessed by the original trustee, under the deed of trust. ’ ’

I. It is claimed by the appellant that on the death of the trustee, the deed of trust made the sheriff successor, vesting in him as such the title and the power of sale, and the court had no authority to appoint a trustee except upon the refusal or inability of the sheriff to execute the trust.

It is true, as respondent asserts, that laws in force at the time and place of making the contract which affects its validity, performance, discharge, or enforcement entered into and form a part of it as if they were expressly referred to or incorporated within the terms of the contract. [6 R. C. L., Contracts, sec. 243 ; Christian v. Insurance Co., 143 Mo. 460, l. c. 465; State ex rel. v. Smith, 173 Mo. 398, l. c. 420; Havens v. Fire Ins. Co., 123 Mo. 403, l. c. 416-17; Kleeman Co. v. Casualty Co., 177 Mo. App. 397; Northern Pacific Ry. Co. v. Wall, 241 U. S. 87, l. c. 91; Walker v. Whitehead, 16 Wall. l. c. 317.]

This rule is made to apply, it seems, tó every kind of contract which is the subject of statutory enactment. Taking it as applicable to this case, and reading these statutes into the deed of trust as a part of its provisions and construing them in connection with the other provisions quoted above, it becomes necessary to ascertain on what contingency the court could appoint a trustee with authority to discharge the trust. These provisions of the deed of trust must be harmonized with the statute so as to give effect to all of them, if possible.

Eespondent contends that the sheriff is not made alternative trustee by the terms of the deed of trust, hut is merely given the power to sell; that it is a grant of a naked power, without the estate, such a,s is vested in a trustee, and therefore on the death of Kotthoff there is no trustee to execute the trust in its entirety and the court may appoint.

This-court has held that the provision in a deed of trust to the effect that on the death of the trustee the then sheriff may sell, means the sheriff who is such at the time the foreclosure sale is desired. And it. was held also that the sheriff is not by the deed of trust vested with the title on the failure of the trustee, hut merely is given the power and right to sell. [Miller v. Bank, 235 Mo. 522, l. c. 530.] That case mentions the case of McNutt v. Life Ins. Co., 181 Mo. 94, and states that it has been overruled. In the latter case the deed of trust provided that upon death or refusal of the trustee to act, another trustee who was named should execute the trust, and in case of the latter’s death, inability or refusal to act (p. 98): “Then the (then) sheriff of said county of Jackson and State of Missouri (who shall thereupon become their successor to the title to said property, and the same become vested in him in trust for the purposes and objects of these presents, and with all the powers, duties and obligations thereof), may at the request of the holder of said note proceed to sell,” etc. The court says (p. 00): “That the title which the sheriff takes in such circumstances, he takes as an individual, and not officially, and it remains in him until divested by his death, or other disqualification, or by the payment of the debt.” And held, as a necessary consequence, that “the then sheriff” means the person who was sheriff at the time of the death, removal or inability of the trustee.

The ease of Feller v. Lee, 225 Mo. 319, is referred to as overruling the McNutt case. There the conveyance was made to the sheriff of Webster County, party ©f the second part, no name mentioned, with haibendum: “To Have and to Hold the same with the appurtenances to party of the second part, and to his successor or successors in trust, and to his or their grantees and assigns forever” (p. 328). It then provides that in case of the absence, death, refusal to act, or disability in any wise of the party of the second part, .the then acting sheriff of Webster County, Missouri, might sell (p. 329). The court says (pi 332): “Not only so, but a succession of trustees is carefully provided. In certain named contingencies the original trustee becomes functus officio and his named successor is to execute the power. Now in this trust deed there is no hint that Lemphere and Hayes [grantor and beneficiary] were contracting that Goss, then sheriff, alone held a dona,tion of power to execute the trust. To the contrary, the parties industriously and of set purpose provided for a line of succession to make the security effectual and easily accomplished by avoiding complications or accidents in the way of foreclosure.” The original sheriff named as trustee was out of the county 'and the sheriff in office at the time of the default executed the trust and made the sale, and it was held the sale was good. This case closes by reference to the McNutt case, and was sent to Court in Banc because of a difference from that case, and the opinion was there adopted.

Since that time this court in several cases has held that the “then sheriff” mentioned in deeds of trust of that form, is the sheriff who happens to be such when the foreclosure is desired. [Betzler v. James, 227 Mo. 375; West v. Spencer, 238 Mo. l. c. 69; Miller v. Bank, 235 Mo. l. c. 529-30.] Each of these cases distinguishes the McNutt case and calls attention to the peculiar language used in it. In none of these cases was it stated or intimated that the sheriff, on the failure of the trustee, acquired only a naked power without an interest. In none of them were the words successor or successors used, nor any words indicating an intention to vest title in the sheriff on failure of the trustee named.

The difference between the McNutt case and the Feller case seems to be in this only: The “then sheriff” referred to in the McNutt case meant the one who was sheriff at the time of the failure of the original trustee, while in the Feller case it was held to be the one who was sheriff at the time of the desired foreclosure. In the McNutt case it was held that the sheriff was invested with the title as an individual, and not as an official, so that on the failure of the other trustee he was plainly designated as such individual. In the Feller case it was held that it was the official who was designated, and that it was the sheriff who happened to be in office at the time of the foreclosure.

The two cases are in agreement to the effect the sheriff was the successor in trust of the trustee with power to execute the trust.

In the Feller case the habendum was to the party of the second part, and to his successor or successors in trust, just as in the case at bar. The opinion explains that the title was not vested in the original trustee “out and out for all purposes, but merely for the purpose of executing the trust,” and indicates that the sheriff, on the contingency named, would succeed to ■exactly the same estate and power. It holds that the instrument provided for “succession of trustees,” as shown in the passage quoted above, and the sheriff in office at the time of the foreclosure “executed the trust” (p, 331).

From an early day this court has held that the sheriff in such case acquires an interest in addition to the mere power of sale. In Beatie v. Butler, 21 Mo. 313, l. c. 319, the court said: “The distinction between the mere grant of a power and of an estate is obvious to every member of the profession, and is recognized on all occasions. Where there is a mere grant of power, the death of the grantor of the power extinguishes it.”

In White v. Stephens, 77 Mo. 452, the court refers to that case and endorses the doctrine stated. The deed of trust provided that in the event of the death of the trustee the then acting sheriff of Marion County should proceed to sell the property, etc., and execute a deed; it was held that the power granted the sheriff was not revoked by the death of the grantor for the reason that the grant included an interest.

The case of McKnight v. Wimer, 38 Mo. 132, is where a deed of trust provided that in the absence, sickness or death, or disability of the trustee, the acting sheriff of the city of St. Louis might proceed to sell. The- court held that it was not merely a naked power (such as an attorney in fact possesses), which could be destroyed by revocation. “The sheriff was clothed with a trust for his [beneficiary’s] benefit, and the grantors did not possess the power of revocation.” The opinion in that case discusses the principle at some length.

The holding mentioned above in Miller v. Bank, 235 Mo. 522, that the sheriff is not “successor” of the trustee, possibly was on the theory that when the trustee dies his successor provided in the contract must eo instanti be vested with the trust, and therefore the designation of the successor must be such that he can be ascertained at that time. According to the Feller case it is not necessary that the trust should- devolve at once upon the successor. It is necessary only that the trust shall not fail for want of a trustee, and his succession may occur immediately, or after an interval, and not alone upon the contingency of the failure of the original trustee, but upon the further contingency of a demand of foreclosure after default. That conclusion realizes the evident intention of the parties to an instrument such as we have under consideration, and is in harmony with the cases cited.

Therefore, it was not necessary to the conclusion reached in the case of Bank v. Miller that the court should hold, as it did, that the sheriff acquired no interest, but only a naked power; and to that extent the announcement is obiter. If it were merely a naked power it could be revoked at the pleasure of the grantor in any deed of trust and would lapse upon the grantor’s death.

II. The intention,, which may be gathered from the instrument, compels the same conclusion.

It was said in the case of Kelsay v. Farmers & Traders Bank, 166 Mo. l. c. 171.

“The power to sell under a deed of trust is a matter of convention and contract between the parties, and they are authorized to select their own trustee, and presumably they do it because of their faith jn fairness, and another cannot. be substituted in his stead unless it is done in the manner, and on the conditions, to which the parties have agreed.”

The habendum here provides that the property is held to the trustee ‘ ‘ and to his successor as hereinafter designated.” The provision for the sale of the property in case of the trustee’s absence, death, refusal to act or disability in any wise, is that the then acting sheriff of the city of St. Louis may proceed to sell; that is, to execute the trust. Then follows the provision that in case of such sale, a deed to the purchaser shall be made “by the trustee or his successor.” There can be no doubt of the intention that the trustee’s “successor hereinafter designated” should be no other than the sheriff. There is no other designation of a successor, and the fact that a sheriff is empowered to execute the trust is just as complete and specific a designation of him as successor to the trustee as if the word successor had been used in connection with his authority to sell. 'So it is evident from the terms of the instrument that it was the intention to vest the sheriff with the same interest and power to execute the trust that the trustee had.

In view of the uniform ruling that the sheriff in the contingency under consideration becomes vested with the power to execute the trust, and with an irrevocable interest which retains for him the power after the death of the grantor, the obiter statement in Miller v. Bank cannot be said to establish a contrary rule. Particularly it cannot control in this case where the terms of the deed of trust clearly indicate intention to make the sheriff successor in trust.

III. Respondent makes the further point that in any event under the language of the statute the court might appoint a trustee on the death of Kotthoff, because, the statute says, “if any trustee in such deed of trust die” the court may appoint someone to execute the trust. The argument is that the original trustee having died the contingency arose although there might be a successor; that under the statute the court is authorized to appoint a trustee if the original trustee dies, although by the terms of the instrument the trust devolves upon another trustee. If there were several trustees vested with the estate, who should act together, the statute would apply in case of the death of any one, and it is argued that it applies if there were several trustees where the authority of each depends successively upon the failure of his predecessor.

It does not appear to us that the Legislature had any such restricted interpretation of the statute in mind in enacting it. The evident purpose was to provide for the appointment of a trustee in case of the failure of someone to execute the trust — the complete absence, under the terms of the instrument, of someone who might carry out its provisions; to arrange the matter so that the trust would not fail for want of a trustee.

We think the contingency did not arise which au- ' thorized the circuit Court to appoint a trustee, and therefore the sale was void.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.