author: FOX, J.

text:
    SAMUEL G. STAHLHUTH, Appellant, v. PIERRE NAGLE et al.
    Division Two,
    June 30, 1910.
    1. FRAUDULENT CONVEYANCE: Burden of Proof. Where plaintiff charges that the note was fictitious and the deed of trust and notes were fraudulent and without consideration, the burden is on him to prove the fraud.

      2. -: Preferred Creditor: Brother. A debtor in failing circumstances may prefer one creditor over another, even though the preferred creditor be the debtor’s bachelor brother, living in the same house, and helping him at times in the support of his family; and even though the effect of the preference is to delay other creditors, yet if the deed of trust and note were to secure the payment of a valid indebtedness due the brother, amounting to no more than what he actually owed him, they will not be set aside at the suit of such other creditors.
    3. DEED OF TRUST: Delivery. The recording of a deed of trust and then placing it in the hands of another to be delivered to the oestui qui trust, especially where the latter is told by the maker that it is in the hands of the depositary for him, is a constructive delivery, at the least.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Afkiembu.

      McCorlde & Webster for appellant.
    (1) In equity cases the judgment of the trial court will be accorded all proper consideration, but as the ultimate responsibility for the judgment rests on the appellate court, when the case is appealed, that court is not bound by the findings of fact by the trial court, but will review the evidence and render such judgment as good conscience dictates. Hoeller v. Haffner, 155 Mo. 589; Bank v. Fry, 115- S. W. 439; Guinan v. Jarrott, 183 Mo. 204. (2) Where a person makes a voluntary conveyance of land, or some interest therein, to another, without consideration or for inadequate consideration, with the fraudulent intent to defraud, hinder or delay his creditors, the law raises a resulting trust in favor of his creditors, and they may set aside such conveyance by a suit in equity. White v. McPheeters, 75 Mo. 286; Stanton v. Boschert, 104 Mo. 393; Ryland v. Callison, 54 Mo. 513; Grentry v. Robinson, 55 Mo. 260. (3) Where anyone is indebted to another, he has a legal right to prefer him over his other creditors, even though such preference may have the effect of hindering and delaying the claims of other creditors; but if in such a case it further appears from all the circumstances attending the transaction that 'the preferred creditor is not acting from an honest purpose to secure the payment of his own debt, but from a desire to aid the debtor in defeating other creditors, or in covering up his property, or in giving him a secret interest therein, or in locking it up for the debtor’s own use and benefit, he will not be protected, and the conveyance to him as a pretended preference will be fraudulent as to the other creditors of his vendor. Huffmann v. Nison, 152 Mo. 303; Marble Co. v. Achuff, 83 Mo. App. 42; Klauber v. Schloss, 198 Mo. 502; Martin v.'Estes, 132 Mo. 402; Riley v. Vaughan, 116 Mo. 169 ; Buckingham v. Tyler, 74 Mich. 101; Shelley v. Boothe, 73 Mo. 74. (4) The relationship of the parties, the indebted condition of Pierre, the unsatisfactory evidence of consideration, other similar deals indicating fraud participated in by Richard Nagle, the indifference of Richard to, and his ignorance of, this deed of trust, form such a combination of suspicious circumstances as shifts to defendants the burden of making a very full and dear showing of good faith and honest purpose. Farwell v. Meyer, 67 Mo. App. 574; Boldt v. Bank, 59 Neb. 283; Mitchell v. Eure, 126 N. C. 77; Moore v. Gainer, 53 W. Va. 403; Pruyn v. Young, 51 La. Ann. 320'; Marcus v. Leake, 94 N. W. 100. (5) Placing a deed in the hands of a third person is not a good delivery unless the grantor parts with his dominion over it. Ells v. Railroad, 40' Mo. App. 185; Johnson v. Farley, 45 N. H. 505; Porter v. Woodhouse, 59 Conn. 568; Alsop v. Swathel, 7 Conn. 500; Mudd v. Dillon, 166 Mo. 110; Hammerslough v. Cheatham, 84 Mo. 13; Henry v. Henry, 65 Mo. 689; Vanstone v. Goodwin, 42 Mo. App. 39. (6) The same rule applies where the grantor keeps it in his own possession or under Ms own control. Weber v. Christen, 121 111. 91; McGraw v. McGraw, 79 Me. 257; Steven v. Castel, 63 Mich. Ill; Metcalfe v. Brandon, 60 Miss. 685. (7) Richard, by taking no note, or security, or any step to assert his rights for nine years, and thus permitting persons to extend credit to Pierre upon faith that he was solvent and able to pay, is now es-topped to come in and assert his debt and receive a preference, to the exclusion of those whose claims have been based on his apparent solvent condition and good standing. Riley v. Vaughan, 116 Mo. 169.

      E. G. Slevvn for respondents.
    (1) A debtor in failing circumstances or insolvent may bona fide prefer one creditor to another. Wood v. Porter, 179 Mo. 56; Martin v. Estes, 132 Mo. 402. And, in the absence of fraud, the preference may he given to a creditor who is a kinsman as well as to a stranger. Kincaid v. Irvine, 140 Mo. 615; Mansur Co. v. Ritchie, 143 Mo. 587; Donk Bros. v. Stephens, 74 Mo. App. 39. I concede, however, that a preference given to a kinsman should be scrutinized more carefully than when given to a stranger. (2) The burden of proof is upon the plaintiff and there remains. Hay-don v. Grocery Co., 88 Mo. App. 241; Wall v. Beedy, 161 Mo. 625; State ex rel. v. Cryts, 87 Mo. App. 440; Mansur Co. v. Ritchie, 143 Mo. 587. The rule as stated by appellant might be conceded, if the conveyance were merely voluntary, or a purchase. Wall v. Beedy, 161 Mo. 625.’ (3) Whatever may be the intention of a debtor in preferring a creditor, if there exist a bona fide indebtedness the preference will bo upheld. Shelley v. Boothe, 73 Mo. 74; Bonney v. Taylor, 90 Mo. 63; Alberger v. White, 117 Mo. 347; Crothers v. Busch, 153 Mo. 606; Wall v. Beedy, 161 Mo. 625; Haydon v. Grocery Co., 88 Mo. App. 241. (4) The delivery of a deed to a third party with directions to deliver it to the one for whom it is intended, constitutes a good delivery. Peters v. Berkemeier, 184 Mo. 393; Coulson v. Coulson, 180 Mo. 709; In re Soulard’s Estate, 141 Mo. 642; Appleman v. Appleman, 140 Mo. 309; Kuh v. Garvin, 125 Mo.'547.
   FOX, J.

— Plaintiff claims title to a certain lot and part of lot in the city of St. Louis; and by this suit seeks to have set aside and for naught held a certain alleged false and fraudulent deed of trust executed by defendant Pierre Nagle on said property, the same constituting a doud on plaintiff’s title.

In his petition plaintiff states that he is owner of lot 21, and five feet off the east part of lot 20‘, and three feet nine and one-half inches off the west part of lot 22, in city block 1024, in the city of St. Louis, the same being occupied by house numbered 3030' Morgan street, in said city; that said property was acquired by him at sheriff’s sale, on June 14, 1905, under a judgment for debt against said Pierre Nagle. “That heretofore, to-wit, from March 1st to March 20, 1903, the defendant Pierre Nagle, who was then owner of the property aforesaid, was heavily indebted to divers and sundry persons in the city of St. Louis and elsewhere. That at said time the said Pierre Nagle, fearing lest said property should 'be seized upon by his creditors to satisfy their claims, did then and there collude and conspire with the defendants Bichard Nagle, and J. Pirtle and said Felix E. Gunn, trustee, to aid and assist him to hinder, delay and defraud his said creditors, and to secrete his interest in the property aforesaid, and to prevent same being sequestrated and applied to the payment of said claims of said creditors, did enter into a fraudulent scheme and device, the general plan and purpose of which was that the said Pierre Nagle should execute a false and fraudulent note for a fictitious and wholly non-existent indebtedness, ostensibly due to his brother, Richard Nagle, and should pretend to secure the same by a false and fraudulent deed of trust for a large amount, so as to make the equity of said Pierre Nagle appear small, insignificant and practically valueless; that to still further mystify and conceal the false and fraudulent nature of the transaction, said Pierre Nagle, acting upon the advice of one Brennan, did make out the notes to the defendant, J. Pirtle, with the understanding that they were to be indorsed by him and turned ■over to the defendant, Pierre Nagle, or whomsoever he might designate. ’ ’

The further allegations of the petition are, in substance : That the defendants fully executed said fraudulent scheme and device, and that said Pierre Nagle, on March 19, 1903, made a note for $1700, payable three years after date, and interest notes, and executed and. delivered to said Felix E. Grunn, as trustee, his certain deed of trust of even date therewith, for the ostensible purpose of securing said notes, which deed was placed of record, but that said notes and deed of trust were wholly fictitious and colorable, fraudulent and invalid, and that no consideration was given therefor; that plaintiff is advised and believes that said notes and deed of trust are held by the defendant Richard Nagle without any right thereto or interest therein, and that neither of the defendants, nor any holder under them, has any right or interest in the property aforesaid by reason thereof; that said deed of trust creates a>cloud on plaintiff’s title, which ought to be removed therefrom; that said Pierre Nagle is insolvent, and that plaintiff is advised and believes, and alleges the fact to be, that said Richard Nagle is insolvent, and that the other defendants have no beneficial interest in said property or in said notes or deed of trust; that there is a genuine deed of trust on said property which matures one day prior to the maturity of the fraudulent deed of trust aforesaid; that plaintiff has no adequate remedy at law and is in danger of losing his said property if equity does not intervene, and that he is likely to suffer irreparable harm and injury.

Plaintiff prays ‘‘that the aforesaid deed of trust be set aside and for naught held, and that defendants be decreed to deliver up' the. same for cancellation, together with the notes described therein, and that the defendants, Pierre Nagle and Richard Nagle, be decreed and adjudged to pay to plaintiff any and all damages that may accrue to him by reason of their false and fraudulent clouding and encumbering his title, and for such other and further relief as to equity appertains, and which the court shall deem fit and proper.”

The facts developed by the evidence are as follows:

Defendants Pierre and Richard Nagle are brothers, living together in St. Louis at the time of the trial. Pierre was a carpenter and contractor, and Richard a teamster. Both were illiterate, Richard more so than his brother. Pierre was a married man, and had several children; Richard was a bachelor. The latter testified at the trial that he was about sixty-five years old, had received no schooling, but learned to write his name after coming to America, when he was about nine years of age. He was a teamster nearly all his life, and at one time owned several teams and wagons, also some real property in the city of St. Louis. He had been accustomed to lend his brother sums of money, and had helped him to raise his family. In the year 1893, Pierre, being in financial straits, obtained a loan of $2000 from him. Richard did not have the money at the time Pierre applied to him for the loan, but raised it by hypothecating his property at the corner of Theresa and Clark avenues to August Gehner as trustee for Henry ITiemenz, who furnished the money. Pierre gave no note or other security to his brother for the money so borrowed, nor did Richard demand same of him, but Pierre afterwards promised to secure him. With the money thus borrowed, Pierre paid taxes on real property he owned, and paid other debts owing by him. Richard loaned other sums of money to Pierre at various times, the full amount, including the $2000' loan, being about $2700. Testifying at the trial, Richard said: “All the money I gave him put together made $2700'. He didn’t give me any note for it. I never asked him for a note. I asked him one day for some money, and he said, ‘No, but I will secure you. I will give you a deed of trust.’ I could not exactly say when that was. It must be three or four or five years ago; I could not say; I don’t keep track of anything of that kind. It was up on Chestnut street,- some place. I remember that very clearly. I didn’t ask him only once. My brother spoke to me about that on Main street. Pie said he would secure me as quick as he could, though. ’ ’

On March 18, 1903, Pierre Nagle obtained title to the property in dispute, located on Morgan street, and on the same day encumbered it with a’ deed of trust to secure a note for the sum of $2200, with the proceeds of which he paid off an existing mortgage on the property, taxes, interest and various debts. The next day, March 19, 1903, he encumbered the property with a second deed of trust to secure a note for $1700, and delivered said note and deed of trust to Mr. Brennan, a real estate man, instructing him to turn them over the trustee was the defendant Felix Gunn. Pierre had the deed of trust recorded. It appears from the evidence that the payee of the note for the principal sum, and interest notes, was one John Pirtle, and that the trustee was the defendant, Felix Gunn. Pierre Nagle testified that-he made the deed of trust to secure his brother for money loaned and advanced him, and said, “I made it in Pirtle’s name because it was customary, and Mr. Brennan advised me to.” He further testified: “I was going to make this deed in the name of my brother, and Mr. Brennan said, ‘No, don’t do it. You make it the same as they all do — in some one else’s name.’ He gave no reason for that; only said it was customary. He didn’t say anything at the time as to the putting of the deed in the name of my brother looking bad from the standpoint of my creditors, nor anything to that effect.” Joseph C. Darst, a real estate agent, testified that it was customary to make the payee of notes secured by a deed of trust a “straw man,” or some person other than the person loaning the money, and that “probably three-fourths of the notes made on Chestnut street are made in that way;” that the practice “is universal among the agents, as far as the agents can control it.” After the delivery of said papers to Brennan, Pierre told Richard Nagle that the deed of trust was in Mr. Brennan’s office and that he could get it any time he wanted it. Brennan also met Richard on Chestnut street one day, and said, “There’s a package in the office for you, and I think it’s a deed of trust,” whereupon Richard said, “Leave it there; it’s safer there than with me.”

Both Pierre and Richard Nagle testified that the former paid all of the interest notes, save one, on the loan of $2000 secured by Richard through the hypothecation of his property on Theresa and Clark avenues, which $2000 was loaned to Pierre without any security at the time. About a year and three months before the trial Pierre did considerable work for Richard, for which he charged him $155. He asked Richard for some money. The latter did not have any, and told Pierre to go to Brennan’s office and cancel interest notes to the value of $155. Pierre went to said office and asked for Richard Nagle’s papers, and received them. He canceled six of the interest notes of the value of $153, and by the time he had canceled them there was no one in the office to receive the papers back. He therefore put the papers in his pocket, walked out, and kept them in his pocket two or three days, when he returned them to the office, saying, “This is Dick Nagle’s papers; please put them back in the safe.” In the package were six interest notes, the principal note, and the deed of trust. On the outside of the package was a card stating that the papers belonged to Richard Nagle, which card Pierre never saw afterwards, and it was not produced at the trial. Mir. Brennan, testifying for the defendants, stated that a package of papers was placed in his possession, and he was told that it included a deed of trust; that Richard Nagle’s name was on the package, the handwriting being, as he thought, that of his clerk; that Richard Nagle was given possession of the papers ■about a year before the trial; that Pierre Nagle had possession of the papers before that, and they were afterwards returned to Brennan’s office and placed in the safe; that about a year and a half or two years before the trial he (witness) had a talk with Pierre Nagle in relation to selling his Morgan street property, that Pierre then told him that it was encumbered with two deeds of trust, and that “the second deed was Richard Nagle’s.” It appears from Richard Nagle’s testimony that he did not take the papers from Brennan’s office until about two months before the commencement of' this suit, and that after suit was filed he took them to his lawyer.

The evidence shows that Pierre Nagle was indebted to various persons at all times in his business career. Among his creditors was one John Dooly, to whom he became indebted in the year 1899 for work done on a house Pierre then owned in Westminster Place, St. Louis. He paid part of the indebtedness, and Dooly did not press him to pay the remainder. Dooly died, and after his death there was organized the John E. Dooly Furnace Company, which company, on December 8, 1904, brought suit to recover the amount of the indebtedness, and obtained judgment against Pierre Nagle in the sum of $176.65 and costs. Execution was issued by the justice, and the constable returned same nulla tona. A transcript of the judgment was filed in the circuit clerk’s office, and on May 11, 1905, a levy was made upon Pierre Nagle’s property on Morgan street, described in the petition, and the same was sold for $400 to the plaintiff, who received the sheriff’s deed thereto.

It appears from the testimony of Mr. Hugh D. McCorkle, attorney for plaintiff, that he advised plaintiff to purchase the property at the execution sale; that an agreement was made between them that he, McCorkle, would institute suit for plaintiff against Richard Nagle to set aside the deed of trust in question on the ground of fraud, and that if plaintiff should win the suit, the proceeds or profits, after paying the judgment of the Dooly Company, should be divided between them. In pursuance of said agreement, this suit was instituted.

According to the testimony of the two brothers, except as to the note and deed of trust for $1700, Pierre Nagle never paid Richard any money on account of the indebtedness of $2700.

There was a great deal of evidence in this case, particularly with reference to the debts and various real estate deals'of Pierre Niagle, but the foregoing facts are the more salient and important.

The court found for the defendants, and rendered judgment in favor of defendants, and against plaintiff for costs, and dissolved the' temporary injunction theretofore granted plaintiff, from which judgment plaintiff appealed to this court.

OPINION.

There is, as we think, but one vital, controlling question in this case, and that is, was Pierre Nagle bona fide indebted to his brother, Richard, in the sum of $1700? If he was, he -undoubtedly had the right to give him his note for that sum, and secure it with the deed of trust in question, and Richard had the right to take such security, no matter if at the time Pierre was indebted to others.

The petition alleges that Pierre Nagle conspired with Richard Nagle and J. Pirtle, and Felix E. Gunn, trustee, to aid and. assist him to hinder, delay and defraud his creditors, and that such conspiracy was carried out by the giving of the note for $1700 and the deed of trust to secure the same, and that said note and deed of trust were fraudulent and without consideration.

Plaintiff having charged fraud in the transaction, upon him rested the burden of proving it. [Wall v. Beedy, 161 Mo. 625; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587; State ex rel. v. Hope, 102 Mo. 428; Haydon v. Alkire Gro. Co., 88 Mo. App. 241.]

The evidence is that in 1893 Richard Nagle loaned his brother, Pierre, $2000. In order to do this he borrowed that amount from one Frank Hiemenz, giving his note and deed of trust therefor. This deed of trust was introduced in evidence. Pierre, at the time, gave his brother no security for the loan, nor was it asked. Other sums of money, amounting to $700, were afterwards loaned by Richard Nagle to his brother. Richard was in good circumstances at the time, and the reason why he did not ask Pierre to pay the loan sooner than he did was, as he testified, because “I didn’t need it, and I thought he might as well have it as anybody else.” He further stated that he was not uneasy about the debt, and that he had confidence in his brother. One day, meeting Pierre on Chestnut street, Richard asked him for some money. Pierre did not have any money, but said he would secure him “for some of that money.” Some time after this Pierre again met Richard and told him about his having executed the deed of trust in question, that it was at Brennan’s office, and that he (Richard) could get it at any time.

It is true that the only documentary evidence introduced, supporting the testimony of the brothers as to these loans, was the record of the deed of trust placed by Richard on his property at Theresa and Clark avenues, but their testimony stands unimpeached. Richard was very illiterate and kept no memoranda or books of account, and the business methods of both brothers were crude. Pierre’s testimony was taken three times: once before a justice of the peace, again before a commissioner appointed by the circuit court to take his deposition, and at the trial. Richard was examined twice — before the commissioner, and at the trial. Counsel for plaintiff closely compares and analyzes their testimony on all these occasions. We fail to see any serious inconsistencies in their testimony, and think the learned counsel’s inferences and conclusions very strained. The statements of the brothers as to the indebtedness are at all times consistent. In answer to a question of the court, Richard says: “He owed me that money. If I was dying to-morrow, I would say he owed me. that money.” The trial court had opportunity to note the demeanor of the witnesses, and was evidently convinced that they told the truth. Whatever may be thought of Pierre’s various real estate transactions, and his motive in placing this deed of trust on his property, there is no evidence indicating that Richard participated in, or had knowledge of, the fraud, if there was such, which we do not believe.

Richard Nagle was simply a preferred creditor, and in taking the security offered him he was acting within his rights. As shown by the testimony, Pierre owed Richard $2700 altogether, while the note to secure which the deed of trust was given was only for $1700. “Where the right of preference, as in this State, is recognized, we cannot see how it is possible for one creditor, who gets nothing more from the debtor than sufficient to pay off, discharge or settle his just claim, to commit a fraud against the rights of other creditors, or how he can be said to have participated with the debtor in the commission of a fraud.” [Wall v. Beedy, supra, l. c. 639.] It is firmly established doctrine in this State that a debtor may prefer one creditor over another, even though the preferred creditor be a relative of the debtor; but in the latter ease the fact of relationship- is to be considered with the other facts and circumstances. [Mansur-Tebbetts Imp. Co. v. Ritchie, supra; Kincaid v. Irvine, 140 Mo. 615; Donk Bros. v. Stevens, 74 Mo. App. 39.] In the Kincaid case, supra, it is said: “So long as there is no fraud in the transaction, a debtor in failing circumstances may prefer his kinsman, who is his creditor, as well as a stranger. While a court of equity will scan the transaction with jealous eyes, preference and relationship alone will not afford sufficient evidence of fraud.” A close reading of the record in this case convinces us that the evidence is entirely insufficient to establish the charge of fraud.

Plaintiff contends that the evidence was not sufficient to support a constructive delivery of the- deed of trust prior to the attaching of the Dooly Company judgment lien. The justice’s judgment in favor of the John E. Dooly Furnace Company was rendered December 8, 1904, and the transcript filed some time afterwards in the circuit clerk’s office. The deed of trust, executed March 19, 1903, was promptly recorded, and then placed in the hands of Mr. Brennan, who was instructed by Pierre Nagle to turn the same over to Richard Nagle. Thereafter Pierre told Richard where he had placed the notes and deed of trust and that he could get them at any time. Brennan, having met Richard on the street, said to him: “There’s a package in the office for you, and I think it’s a deed of trust.” Richard said, “Leave it there; it’s safer there than with me.” These occurrences, as the evidence indicates, all took place many months before the said judgment was secured. Brennan also testified that Richard Nagle’s name was on the package in question, although he (Brennan) did not personally know that it contained a deed of trust, as he had not seen it. He further stated that about a year and a half before the trial, in a conversation had with Pierre Nagle, the latter told him. that the second deed of trust with which his property was encumbered belonged to Richard Nagle. The trial began April 5, 1906, and this conversation, had a year and a half previously, was two months before the Dooly Company judgment was rendered. Despite these facts, plaintiff claims that because Pierre Nagle, about a year and three •months before the trial, took the papers from Brennan’s office, cancelled some of the interest notes, and returned the papers to Brennan’s office a week later, he had not divested himself of dominion over the deed, and there was, therefore, no delivery of the deed before that time. This argument is not tenable. The evidence clearly shows that Pierre, in going to Brennan’s office and cancelling the interest notes, was acting under Richard’s direction. We think the evidence establishes a constructive delivery of the deed of trust prior to the attaching of the Dooly Company judgment lien, and we fail to find that Pierre Nagle exercised any control or dominion over the deed after he placed it in Brennan’s hands for delivery to his brother. This being so, the fact is of little consequence that Richard Nagle did not take physical possession of the papers until some months afterwards.

It appears that the trial court made and handed down a memorandum of its findings of fact, but that said memorandum became lost, and the same is not before us. Counsel for the respective parties are not in accord as to what the memorandum contained. In equity cases, however the appellate court is not bound by the trial court’s findings of fact, but will review the evidence and render such judgment as good conscience dictates. [S

The judgment of the circuit court is well supported by the evidence, and we see no reason for disturbing it. It is therefore affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    WILLIAM C. GLASGOW, Appellant, v. MISSOURI CAR AND FOUNDRY COMPANY.
    Division Two,
    June 30, 1910.
    1. TRUST ESTATE: Death of Beneficiary: Vesting of Estate: Married Woman. Where land is conveyed to a trustee to hold the estate to the separate use of a -married daughter, the trust estate when the daughter dies, does not continue, but comes to an end, and is executed in her children, whether they be male or female, and if female whether they be then married or unmarried. A married daughter is not deprived of the right to inherit her mother’s estate or of the right to receive and enjoy it, simply because she is under coverture.
    2. -: -: -: Trustee’s Curtesy: Limitations. Where the conveyance was to a trustee for the separate use of a married daughter, upon her death the trust ceased and was executed in her children, and if one of those children was the wife of the trustee, who still survived, the estate devolved upon him as tenant by the curtesy initiate, and the right of possession was in him, and thereafter neither she during her life, nor her children after her death, could sue for possession while he lived; and though he might have been barred by limitation from recovering possession of the property, they were not, since they did not take through him. And hence her children’s suit begun within ten years after his death was not barred by limitations.
    3. -: Dry Trust: Execution. Where the trustee was required to execute and deliver such conveyances and leases as the beneficiary might in writing direct, and she was to receive and fully enjoy the rents, profits and issues, for which her receipt should be a full acquittance, although “when necessary or proper” the trustee should “defend and make good the title of said premises, but for all expenses that may be incurred in the execution of the trust” he “may make deductions out of said rents and profits,” the trust was a dry one, and was executed by the Statute of Uses upon the beneficiary’s death, and there were no active duties devolved upon the trustee which required his retention of the estate after her death.
    4. CONVEYANCE: Presumption That Deed Was Made. A court or jury may indulge the presumption that a deed was made, delivered and lost before registry when such a state of facts is developed as makes otherwise inexplicable the actions of the parties. Where the property was deeded in trust in 1849 for the benefit of a daughter to her husband, and though her descendants, the plaintiffs, are not barréd by limitations, because of his curtesy, a presumption that he and the beneficiary executed a deed in 1852 will be indulged from the fact that he paid •taxes thereon from 1849 to 1852; that from 1852 to 1879 the taxes were assessed against another and paid by such other; that from 1879 to 1898 the taxes were assessed against the lessee and grantee of such other and paid by them; that the land had been originally subject to overflow from the river, and in 1879 said lessee graded it, improved it and took actual possession, and it and the grantee have held continuous possession since; that the beneficiary died in 1865 and the trustee’s wife inherited a half interest in it and he was entitled to possession because of his curtesy until his death in 1892 if it had not been sold, yet he stood by and saw all these things done and made no objection and did not inventory the property as a part of the beneficiary’s estate; and that her other child, who inherited the other half, and who lived many years afterward and died without ever having been married, enumerated all her other property in her will but did not mention this.
    Appeal from St. Louis City Circuit Court. — ifow. D. D. Fisher, Judge.
    Affirmed.

      Johnson, Rule & Allen for appellants.
    (1) On the death of Mary E. Lane in November, 1865, the trust created by the deed from William L. Ewing to William Glasgow, Jr., terminated, and the legal title vested in Mrs. Lane’s heirs, Sarah L. Glasgow and Anne E. Lane. O ’Brien v. Ash, 169 Mo. 283; Schiffman v. Schmidt, 154 Mo. 204; Walton v. Drumtra, 152 Mo. 489; Baker v. Hall, 591 Mo. 265; Roberts v. Moseley, 51 Mo. 282. (2) In 1865 Sarah L. Glasgow was the wife of William Glasgow, Jr., and by virtue of the marital relation he became entitled to the possession of his wife’s interest. Wilson v. Geraghty, 70 Mo. 517; Mueller v. Klassmann, 84 Mo. 318; Dyer v. Wittier, 89 Mo. 81; Arnold v. Willis, 128 Mo. 145; Robards v. Murphy, 64 Mo. App. 90'; Clay v. Mayr, 144 Mo. 376; Yanata v. Johnson, 170 Mo. 269. (3) This right of possession accrued to William Glasgow, Jr., on the death of Mary E. Lane, and no statute subsequently passed could deprive him of this right. Flesh v. Lindsay, 115 Mo. 1; Arnold v. Willis, 128 Mo. 145; Robards v. Murphy, 64 Mo. App. 90; Clay v. Mayr, 144 Mo. 376. (4) As there were children born of the marriage between Wm. Glasgow, Jr., and Sarah L. Glasgow, he was entitled to the possession of the premises from 1887, the date of her death, until 1892, the date of his death. Rumsey v. Otis, 133 Mo. 85. (5) On the death of Sarah L. Glasgow, in 1887, the legal title to the half interest owned by her passed to her children as her heirs, and that legal title remains in them at the present time. (6) Plaintiffs are not barred by the Statute of Limitations from maintaining this suit for the half interest of their mother, Sarah L. Glasgow. Prom 1849 to 1879 the land was unimproved, unenclosed, subject to overflow by the Mississippi river, and incapable of continuous occupation. It was not actually occupied by anyone, and was therefore constructively in the possession of the owner of the legal title. Turner v. Baker, 64 Mo. 245; Weir v. Lumber Co., 186 Mo. 397. As plaintiffs were in possession of the land in contemplation of law, in 1879, and this suit was brought in-1899, the thirty-year statute does not apply. Weir v. Lumber Co., 186 Mo. 388. (7) Neither the twenty-four nor ten-year statute can apply because neither plaintiffs nor their mother, Sarah L. Glasgow, were entitled to the possession of the premises until 1892, and therefore could not, until then,, have maintained a suit to recover the same. Dyer v. Wittier, 89 Mo. 81; Bradley v. Railroad, 91 Mo. 498; Thomas v. Black, 113 Mo. 66; Rumsey v. Otis, 133 Mo. 85; Collins v. Pease, 146 Mo. 135; Shumate v. Snyder, 140 Mo. 77; Howell v. Jump, 140 Mo. 441; Reed v. Lowe, 163 Mo. 521; Hall v. French, 165 Mo. 430; McMurtry v. Fairley, 194 Mo. 502.

      Watts, Williams & Dines and J. M. Holmes for respondent.
    (1) The trustee being bound by the ten-year Statute of Limitations, his cestuis que trustent, under whom appellants claim, were bound also. Ewing v. Shanahan, 113 Mo. 188; Walton v. Ketchum, 147 Mo. 219; Schiffman v. Schmidt, 154 Mo. 204; Simpson v. Eisner, 155 Mo: 164. (2) The trust estate of Wm. Glasgow, Jr., was not extinguished by the death of the cestui que trust, nor was it dependent upon the personal status of the cestui que trust, as by the deed creating it active duties were imposed on the trustee and he was given control over the rents and profits. Pugh v. Hayes, 113 Mo. 424; Walton v. Ketchum, 147 Mo. 209'; Norton v. Leonard, 12 Pick. 156; Duffy v. Calvert, 6 Gill, 521; Blount v. Walker, 31 S. C. 13; 2 Washburn on Real Property, p. 470; 1 Greenleaf’s Cruise on Real Property, title 12, ch. 1, sec. 25; Fletcher on Trustees, 27. (3) Even were the trust estate of Glasgow dependent solely on the coverture of the cestui que trust, while the statute would execute the use, upon her death, as to the share of her unmarried daughter, it would not as to the share of her married daughter (under whom appellants claim) for the same reason that it would not in her own case — coverture. Walton v. Ketchum, 147 Mo. 218. (4) Appellants are bound by the thirty-year Statute of Limitations. Collins v. Pease, 146 Mo. 135; Campbell v. Greer, 209 Mo. 216. (5) Appellants are bound by tbe presumption of tbe existence of an unrecorded deed from Glasgow, trustee, and Mrs. Lane, to tbeir grantee, Catherine Merry. Greenleaf on Ev., secs. 16 and 17; Dessaunier v. Murphy, 22 Mo. 95; Moran v. Detchemendy, 41 Mo. 438; Brinley v. Forsythe, 69 Mo. 185; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 631.
   GANTT, P. J.

— This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of the defendant in a suit in ejectment, seeking to recover possession of a piece of real estate in the city of St. Louis. The petition is in the usual form, and the-answer consists of a general denial and a plea of the ten, twenty-four and thirty-year Statutes of Limitations.

A jury was waived and the case tried upon an agreed statement of facts. The agreed facts are as follows:

The fee-simple title to the land in contoversy became vested in William L. Ewing, and on October 29, 1849, he and his wife conveyed the same to William Glasgow, Jr., “in trust, nevertheless, and to the' express use and interest that the said premises shall be forever held for the sole and separate and exclusive benefit, use and behoof - of the said Mary Ewing Lane, party of the third part, without any account to any person whomsoever or any liability in any manner for the debts or liabilities of William Carr Lane, husband of the said Mary Ewing Lane; and in further trust that said party of the third part shall forever have and fully enjoy the pernancy of the profits, rents and issues of said premises, for which her receipt and acquittances shall forever be a sufficient discharge ; and that said party of the second part shall always sell and mortgage or lease the said premises or any part thereof, or any interest or estate therein, and execute and deliver such assurances and conveyances of the same as may at any time he required by the written order or request of said party of the third part or her assigns, and also that said party of the second part shall always, when necessary or proper, defend and make good the title of said premises, but for all expenses that may be incurred in the execution of the trusts of this deed said party of the second part may make deductions out of said rents and profits of said premises.”

'No conveyance of this property from William Glasgow, Jr., or Mary E. Lane, or from any of their descendants, appears of record in the records of the city of St. Louis.

Mary E. Lane died intestate November 5, 1865, leaving as her sole heirs two daughters, Sarah L. Glasgow, wife of William Glasgow, Jr., and Anne E. Lane, originally one of the plaintiffs in this suit, both being at said date of legal age. Anne E. Lane died unmarried and without issue since the institution of the suit. She left a will, but made no mention of the property here involved, and the will contained no residue clause. Her sole heirs at law are the children of her sister, Sarah L. Glasgow. Mrs. Sarah L. Glasgow died February 28, 1887, leaving surviving her her husband, William L. Glasgow, Jr., and her children, Wm. C. Glasgow, Allen Glasgow, Frank A. Glasgow, Susan R. Carson, Mary Branch, Sarah L. G. Wilson and Annie Glasgow, plaintiffs herein. Her estate was administered in the St. Louis Probate Court and the property here involved was not inventoried. William Glasgow, Jr., husband of Sarah L. Glasgow, died January 31,1892.

The land in controversy was unimproved, unenclosed and unoccupied at all times prior to 1879; was subject to overflow from the Mississippi river and was not susceptible of continuous occupation and was not in the actual, that is, the physical possession of any one.

No taxes on the land had heen paid by plaintiffs or anyone under whom they claim since 1852. Defendant and those under whom it claims have paid taxes on this land continuously from 1852 to the present time, inclusive, said land having been assessed in their names since said date; in the name of Catherine M. Merry until her death, in the name of her heirs until' 1898, and in the name of defendant since said date.

Defendant entered into actual occupation of the premises in controversy in June, 1879, under lease executed by the heirs of Catherine M. Merry, raised the grade thereof and constructed buildings thereon. On December 11, 1897, defendant obtained a general warranty deed to the property from the heirs of Catherine M. Merry. Since June, 1879, defendant has been in actual, open, notorious and visible possession of the premises.

The court found for defendant, and after an unsuccessful motion for a new trial, plaintiffs have appealed to this court.

I. The contention in this cause hinges upon the proposition, first, whether plaintiffs, as the heirs of Mrs. William Glasgow, Jr., are barred by the ten, twenty or thirty-year Statute of Limitations. It is admitted that Miss Anne E. Lane and her heirs are barred by the actual adverse possession of defendant from 1879 until the commencement of this action in 1899, during all of which time Miss Lane was a feme sole, and could have brought her action by ejectment. As to her sister’s, Mrs. Glasgow’s, half, the conditions are different. From 1849 to 1879, the land in suit was vacant and unoccupied by any person and the constructive possession must be held to have been with the owner of the title.

It is insisted by defendant that the trustee William Glasgow, Jr., was barred by the ten-year limitation. Plaintiffs assert that upon the death of Mrs. Lane in 1865, the statute executed the use in her two daughters, Mrs. Glasgow and Miss Lane; that is to say, the legal estate which had been conveyed by Mr. Ewing to Mr. Glasgow, Jr., was a trust for Mrs. Lane during her marriage to William Carr Lane, and ceased upon the death of Mrs. Lane, and thereupon both the legal and equitable title vested in the two daughters, and the trustee no longer represented the title and his failure to sue could not affect their rights, and the statute "of ten years did not run on the principle that when the trustee has the legal title and the sole right to sue and his right to sue is barred by adverse possession, his cestui que trust is likewise barred; and that as Mrs. Glasgow was a married woman when her mother, Mrs. Lane, died, and continued to be such until her death in 1887 and when defendant took possession in 1879, she was under the disability of coverture and the right of possession was in her husband, as tenant by the curtesy, until her death in 1887, and until his own death in 189-2, when for the first time the right of possession vested in her children, the plaintiffs in this case, and for the first time a -cause of action accrued- to them and they could not be barred until they had a cause of action; Unquestionably plaintiffs are right in their contention unless defendant is right in one or both of its propositions, to-wit, first that by reason of Mrs. Glasgow’s coverture, the statute did not execute the use, but the trust remained and the legal title and right to possession and- to sue remained in the trustee, and the period of limitation having run against him it had likewise barred his cestuis que trustent, and, second, that the trust was not a dry trust, but an active equitable one which the statute did not execute. Of these in their order.

Counsel for defendant- concedes that if a conveyance be made to A in trust for B, wife of C, upon the death of C, the husband, the use will be executed in B and she will-have the legal as well as the equitable title, and such unquestionably is the law of this State. [Roberts v. Moseley, 51 Mo. 282; Liptrot v. Holmes, 1 Ga. 381; Baker v. Nall, 59 Mo. 265; Schiffman v. Schmidt, 154 Mo. 204; O’Brien v. Ash, 169 Mo. 283.]

And counsel for defendant go further, and concede that in the ease supposed, if B, the wife of 0, died leaving male children, the use will be executed by the statute in such children, but their proposition is that if the wife, in the supposed case, leave a married daughter, the use will not be executed, but the trust will remain an equitable one upon which the statute does not take effect, and in support of their position counsel cite Walton v. Ketchum, 147 Mo. l. c. 218. Counsel have misconstrued that case. There the trust was created not only for Mrs. Ann Yore during her life to receive the rents, profits and issues and to sell and convey as she, with the assent of her husband in writing, might direct, but provided that in case of the death of Patrick Yore and Ann, his wife, before the premises should be disposed of, then the same were to be held by said James Meegan, as trustee, for the sole use and benefit of the children of the said Patrick Yore, and Ann, his wife. In that case, by the very terms of the trust it was created for the children, and when Mrs. Yore died, the trustee was still vested with the legal estate in trust for the children, and as Mrs. Walton was then a married woman, the trust continued for her benefit and the statute did not execute it, but it has never been held to our knowledge, and certainly counsel have not cited us to any decision of any court of last resort which holds, that a trust created for a married woman alone, when the coverture ceased, still continued and was not executed in her heirs, if one or more of such heirs happened to be married women; but even if we should find such an opinion, we should not follow it, because we think it would be contrary to our Statute of Uses and Trusts. As was said in Roberts v. Moseley, 51 Mo. l. c. 282, and re-affirmed in Pitts v. Sheriff, 108 Mo. 116: “Where a trustee is appointed to hold the estate of a married -woman, to protect it from the husband, and the marriage relation comes to^ an end, his estate at once becomes executed in the person who is to take it, the wife, if living, or, of she is dead, her heirs at law.” A-married daughter, the heir of her mother, is not deprived of her right to inherit her mother’s estate and the right to receive and enjoy it simply because she is under coverture. Accordingly we can not subscribe to the contention of counsel that the trust continued in Mr. Glasgow, because Mrs. Glasgow was a married woman, and that the right of action and right to possession were in him as trustee; that he could have sued for possession as trustee, and as he did not his wife and her children were barred because as trustee he was barred.

On the contrary, we hold that the trust ceased or was executed in the two daughters of Mrs. Lane, but the moment the title devolved upon Mrs. Glasgow to her half of the land, it also devolved upon her husband as tenant by the curtesy initiate. She could not sue for it, but the right of possession was in her husband, and she had no cause of action during her life, since her husband survived her, and neither did her children during their father’s life, which continued until 1892. They did not take through him, so the fact that he was barred could not affect them. [Hall v. French, 165 Mo. 430; Howell v. Jump, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77.]

As to the second contention, that the trust was an active and equitable one to which the Statute of Uses did not apply, of course, if counsel are right in their construction of the deed, then what we have said in regard to their first proposition will not affect their right to plead the Statutes of Limitations. The trust created by the deed was for the sole and separate use of Mrs. Mary Ewing Lane, without any account to any person whomsoever and free from the debts of her husband, William Carr Lane, and that she should have and fully enjoy the permanency of the profits, rents and issues of said property for which her receipt should he a full acquittance, and the trustee should execute and deliver such assurances and conveyances as she might direct and also “when necessary or proper defend and make good the title of said premises, hut for all expenses incurred in the trusts he might make deductions out of the rents and profits.”

There was no occasion to invoke this last clause upon which counsel base the claim that this was not a trust which the statute would execute upon the dissolution of the marriage of Mrs. Lane by her death. We think this was simply a trust to protect her estate from her husband and his creditors, and that upon her death nothing’ remained upon which the trustee could act and that upon her death the statute executed the trust. We have already distinguished this trust from that considered in Walton v. Ketchum, 147 Mo. 209. We think that by the rule announced in Pugh v. Hayes, 113 Mo. l. c. 432, this was a trust which the statute would execute. In that case this court said: “Where the estate is limited to a trustee to pay the rents and profits to another person for life, the trustee takes the legal estate, for he must receive them before he can make the payments; hut where the estate is limited to a trustee to permit and suffer another to have the rents, the statute rests the legal estate in such other person, because the trustee has no duties to perform.” We think there were no active, .duties devolved upon the trustee which required his retention of the estate after Mrs. Lane’s death and that the statute executed the trust, and for this reason also the statute did not • run against the heirs even though it ran against the trustee.

II. But while the Statutes of Limitations do not in our opinion constitute a bar to this action, there is another view of the rights of defendant to this tract of land, which the circuit court may have adopted from the agreed statement of facts, and that is that it would indulge the presumption that at some date between 1849 and 1852, Mrs. Lane and her trustee, William Glasgow, Jr., conveyed this property to Mrs. Catherine Merry, the grandmother of the grantors of the defendant, by a deed which was not recorded at the time and which could not after the lapse of fifty years be produced on the trial. Such a presumption is not one of law, but is one which a court or jury may indulge when a state of facts is developed which cannot be explained save and except that a deed was made. That Mrs. Lane and her trustee sold this land to Mrs. Merry in 1851 or 1852, is the only conclusion which is consistent with the conduct of the parties, when viewed in the light of the common experience and observation' of human conduct. If such a deed was not made about that time, why did Mr. Glasgow cease to pay the taxes thereon after 1852? Why did he stand by and see Mrs. Merry pay the taxes for twenty-seven years, while the land was not susceptible of actual occupation? Why did he stand by and see the lessees of Mrs. Merry’s children from 1879 down to his death in 1892, pay the taxes upon this .property, improve it, grade it to a grade above overflow, erect extensive buildings upon it and finally purchase it, without asserting any claim to it? Why did he permit the assessor for forty years to assess the property to Mrs. Merry and her heirs, without remonstrance? Why, if it had not been conveyed with his knowledge, was it not inventoried as a part of his wife’s estate when she died in 1887? Why did- Miss Lane when she made her will of all her estate by specific devises, make no mention of this property? And why should Mrs. Merry in 1852 have this land assessed to her and begin to pay the taxes on it, coincidently with the cessation of payment of taxes by Mr. Glasgow, and continue to pay the taxes thereon for twenty-seven years when the property was not susceptible of occupation and the payment of such taxes without occupation could result in no benefit to her? Why did. her heirs and their lessees and vendees from and after 1879, for twenty years and down to the beginning of this suit continue to pay the taxes, grade the property above overflow and erect buildings on it? By reference again to the agreed statement these are not matters of conjecture but conceded facts. “No taxes on the land have been paid by plaintiffs or any one under whom they claim since 1852. Defendant and those under whom it claims have paid the taxes on this land continuously from 1852 to the present time, and said land has been assessed in their names since 1852; in the name of Catherine Merry, until her death, in the name of her heirs, until 1898, and in the name of the defendant herein since 1898.” All these things were done while Mr. Glasgow was living in St. Louis and in active business. To the foregoing queries, plaintiffs make three answers. First, they say that whenever a court or jury has been permitted to indulge the presumption of the execution of an unrecorded deed, the party invoking the presumption entered into actual until 1879. Plaintiffs explain the want of actual occution, and here the title is asserted to have been made in 1851 or 1852 and actual possession was not taken until 1879. Plaintiffs explain the want of actual occupation when they state that the land was, at all times prior to 1879, subject to overflow and not susceptible of continuous occupation, but she did all that a prudent owner would have done, she began to pay the taxes thereon and continued to do so for twenty-seven years until the growth of the city justified her in having the land graded above overflow, and then began an open, continuous, actual possession by raising the grade and building on it, an occupation utterly inconsistent with other than a confident claim and assertion of title under a deed.

The second reply is that Mr. Glasgow might have stood by and permitted Mrs. Merry to pay his taxes all these years, knowing that the payment of taxes did not tend to prove adverse possession. The .high character of an honorable citizen, one whose name is connected with the history of the city of St. Louis, forbids our acceptance of such a reason, and certainly it utterly fails to explain his silence during the thirteen years of adverse actual and continuous possession from 1879 to 1892, which, at least, swept his own life estate from under his feet.

The third reason is that'he forgot he owned the land. It is conceded and admitted that he paid the taxes from 1849' to 1852; to say' he forgot in 1852 and all the years thereafter that he owned the land to which his wife held a recorded deed, and for the taxes on which he held the receipts, is to reject the ordinary and' common course of human conduct and experience. We think none of these reasons is satisfactory.

We think it is absolutely unreasonable that a man of Glasgow’s business capacity, after accepting the trust created by Mr. Ewing for the mother of Mr. Glasgow’s wife and paying the taxes thereon for 1849 to 1852 inclusive, should suddenly in 1852 forget to pay the taxes thereon and continue to forget for forty years thereafter to pay the taxes thereon; We can not conceive that he forgot that his wife and her sister, Miss Lane, had inherited this land from their mother, if such was indeed the fact, and Mrs. Lane had not conveyed it with his concurrence to Mrs. Merry, who began in 1852 to pay the taxes on it. We can not conceive of such a negligent disregard of the interest of his wife and her sister as must have occurred by his standing idly by and permitting a stranger to actually improve and occupy this land from 1879 to the date of his death, in 1892 without protest or action to prevent it. Men are not ordinarily so indifferent to the property rights of themselves and their families. The fact that when Ms wife died and it became necessary to make an inventory of her lands, he omitted this land from the inventory of her estate is a most significant and obdurate fact. When he came to describe the lands, this piece was one of the three conveyed to himself in trust and if he had not known that he and Mrs. Lane had conveyed it to Mrs. Merry, he would inevitably have listed it as part of his wife’s estate. He could not have failed to recall the fact that his wife’s mother owned this land by gift from Mr. Ewing and that he was her trustee of the title. No less inexplicable is Miss Lane’s conduct as to this tract. She had inherited a half interest in her mother’s estate and yet she too suffered a stranger to improve, regrade and build extensive improvements upon it in 1879 and to continue an open occupation of it during the remainder of her life, and when she came to make a disposition of her property by will she carefully disposed of everything she possessed by specific devises without a residuary clause and made no mention of this land. We think the conduct of Mrs. Lane, Mr. Glasgow and Miss Lane in regard to this tract is explainable only upon the theory and presumption that they all knew that in 1851 or 1852 Mrs. Lane and Mr. Glasgow had made a deed to it to Mrs. Merry, and therefore everything that Mrs. Merry and her children and their lessees and grantees did with reference to this was with their knowledge and was consistent with the fact that Mrs. Merry had a deed thereto, and for that reason neither Mrs. Lane, nor Mr. Glasgow nor Miss Lane asserted any claim to this property, knowing full well they had no right thereto. On the other hand it was not an unusual thing fifty years ago for the grantees in deeds to fail to have them recorded. Such failure was liable to occur from ignorance of the effect of a record or from carelessness or various other reasons, and thus deeds in due form and properly delivered have been laid away by the grantees in places known only to themselves and often destroyed by those who came after, without knowing their importance, and when the title has been brought in question could not be produced. That courts and juries may find and indulge the presumption of the due execution and delivery of deeds from a state of facts, such as we have here, is no longer doubted in this State. [Greenleaf on Ev., secs. 16 and 17; Dessaunier v. Murphy, 22 Mo. 95; Moreau v. Detchemendy, 41 Mo. l. c. 438; Brinley v. Forsythe, 69 Mo. 185; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. l. c. 631.]

In our opinion the circuit court upon the agreed statement of facts correctly found the issues for the defendant and its judgment is affirmed.

Burgess and Fox, JJ., concur.


text:
    SARAH J. LINDSEY et al., Appellants, v. MARY VIRGINIA STEPHENS et al.
    Division Two,
    June 30, 1910.
    1. WILL CONTEST: Incapacity. The law presumes that a testator is of sound and disposing mind until there is evidence tending to overcome this presumption.
    2. -: -: Age: Physical Infirmity. The jury are necessarily required to take into consideration the age of the testator, and the extreme illness with which he was suffering when the will was made, in determining his capacity to make a will; but extreme age and extreme illness do not of themselves constitute incapacity. The law looks to the capacity of the mind. If a testator had sufficient understanding and intelligence to know the extent of his property, the persons who were the’natural objects of his bounty, the business he was about, and the manner in which he wished to dispose of his property, he had sufficient capacity to make a will..

      3. -: -: Case for Jury. The testator was eighty-two years old, and for two weeks had suffered with pneumonia, and his left arm was paralyzed, due to old age. His will was written at two o’clock in the afternoon of the day before he died, and his physician testified that at nine or ten o’clock of that day he was perfectly rational. There was testimony that he was strong intellectually, and that at the time the will was written he was of sound mind; his wife, from information she received from the physician as to his condition, sent for three neighbors, and when one of them arrived his daughter told him her father wanted him to write something. He went in the room and testator told him someone would soon he there from town that could write a good hand, and the friend told him that if he wanted anything written he would do it for him. Testator then called for a form book, and the friend told him he did not need one. Testator then asked his wife and daughter to get a will he had executed nine years previously, and he asked the daughter to read that over to him, and she did, and the friend read it to him also, one clause at a time. The friend then asked him if he wanted his will written in that way, and he said he did except that he wished to give his children by his first wife twenty dollars each instead of five each, and that he wished the names of two children of his second wife, who had died, omitted from the will. The will was then written as directed, and read over to him clause by clause, and he attempted to sign it, but could not, and he asked the scrivener to sign his name to it, which was done, and he was held up and his hand held by the scrivener while he made his mark, and the other two friends, who had witnessed the first will, signed it as witnesses in his presence. Members of his family testified that he was perfecty rational and expressed his approval of each clause of the will as it was read to him. There also was ' testimony that for two days he had at times been flighty, had thought his son-in-law was a hired hand, had supposed the bed clothing to be hands of tobacco, and directed the tobacco to be taken away. Meld, there was ample evidence to support the verdict of the jury sustaining the will.
    4. -: -: Law Case: Practice. The contest of a will is a civil case, and it is not the province of the court to interfere with the verdict of a jury upholding the will where there is substantial evidence of testator’s capacity, and the issue has been submitted by correct instructions.
    5. -: Attestation: At Request of Testator. Where testator sent for the two subscribing witnesses for the very purpose of having them attest his will, and when one of them came remarked to him that he had witnessed his former will and he would have to call upon him again for a like favor; and while the other testified, he could not recall any specific request of testator to witness it, yet that he was in the room and saw him try to sign it, and failing in ability to do so, heard him request the scrivener to write his name and then saw him held up while he made his mark, their signing as witnesses in his presence was sufficient attestation.
    6. -: Former Will as Evidence. A former will, differing in no respect from the will in contest except to omit some devisees who had died since its execution and to change the amount of some special legacies, is competent evidence as bearing on the question of the testator’s mental condition and the state of his affections — especially where, at the time the will in contest was written, testator himself called for the former will and had it read to him.
    7. -: Undue Influence. Where it is extremely doubtful whether there was sufficient evidence upon which to submit to the jury the issue of undue influence, yet where it was submitted by correct instructions, and the jury by their verdict upholding the will found there was no undue influence, contestants cannot complain.
    Appeal from Platte Circuit Court. — Eon. Alonzo D. Burnes, Judge.
    Aeeikmed.

      James E. Eull and Ardey Gabbert for appellants.
    (1) The burden was upon the proponents to establish the due execution of the will. This fact was put in issue by the petition. They must also establish the sanity of the testator in order to make a primafacie case. They failed to do this and there was nothing for the jury to pass upon. There was no will. Harris v. Hays, 53' Mo. 96. This writing was not signed by William Stephens, was not written by him, was not signed by anyone by his direction, and was not signed at all. Such an instrument is not in any sense a will. Catlett v. Catlett, 55 Mo. 342; Hospital Assn, v. Williams, 21 Mo. 17; Northcutt v. Northcutt, 20' Mo. 266. The execution of this will is in conflict with Sec. 4604, R. S. 1899, even as to the signature. (2) Tie had not mental capacity to make a will, because he did not comprehend and was not capable of comprehending, at the time this writing was executed, the nature and kind of his property, what property he had, and the persons who reasonably came within the range of his bounty. He had not sufficient intelligence to understand his ordinary business, and he did not know what disposition he was making of his property. These four requisites were necessary; and if he was wanting as to one of them, he could not make a valid will. Riggin v. Westminster College, 160 Mo. 579; Holton'v. Cochran, 208 Mo. 410’. (3) He never understood his ordinary business, because it was stated in the will that he had provided for his older children when he had not done so. This was both mental incapacity and a delusion. It nowhere appears in the record of the case that he had aided his older children to such an extent as he was aiding the younger ones. The exact opposite is true and he was under a delusion in the matter. He had long been under the delusion that he had advanced to his older children more than he could give to the younger ones, and this is stated in the pretended will. This must have controlled him, if he had mind enough to be controlled, in making the will. It was not true. It'was a very extravagant delusion. Benoist v. Murrain, 58 Mo. 307; Holton v. Cochran, supra; Crossan v. Crossan, 169 Mo. 439; Archambault v. Blanchard, 198 Mo. 384; Sayre v. Trustees, 192 Mo. 95. (4) His delusion was aided and kept agitated by his last wife, Mary Virginia, whose testimony shows throughout that she was constantly telling him that his older children would break his will if he disinherited them. Her influence seems to have been wielded, though cunningly, for a great number of years. She says he was a strong character, and a man who wanted his way. Her tactics were, therefore, to instill the subtle poison, by cunning- and fraud, which caused him to state in his pretended will, against the truth and the facts, that he had made the advancements to his older children. Her fraud is further shown by the fact that she kept his older children out of the room when the will farce was being enacted.' She had taken pains for years to keep his older children from coming to visit him. When he met them, he did so at their homes, not at his own. Holton v. Cochran, 208 Mo. 421. (5) The evidence shows that he had not sufficient understanding to comprehend the nature of the business he was engaged in, the nature and extent of his property, and to whom he desired to give it, “without the aid of another person.” He was aided and controlled by Nora Pharis, Mr. Thorp, and the old will. Holton v. Cochran, 208 Mo. 423.

      Anderson & Carmack and Chas. E. Eillix for respondents.
    (1) There was no substantial evidence in this case of mental incompetency. There were no facts established from which the jury might have drawn, reasonably, any legitimate inference tending even to sustain such an issue. The jury found a most righteous verdict for the will, under the instructions of the court, and the judgment is absolutely impervious to legal assault. Hamon v. Hamon, 180 Mo. 685. (2) Appellant’s counsel seem to attach some force to the idea “that the execution of the will is in conflict with Sec. 4604, R. S. 1889, even as to the signature,” but fail to state the facts from which such an inference is drawn. But, if the shadow of a doubt existed, the decisions of the Supreme Court in Hughes v. Rader, 183 • Mo. 630, and in Schierbaum v. Schemme, 157 Mo. 1, would dissipate it. (3) The law presumes that a testator was possessed of a sound and disposing mind, and it rests upon him who disputes the validity of a will to overcome this presumption by persuasive evidence. Jackson v. Hardin, 83 Mo. 186. (4) By competency in a testator is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition he is making of it and the persons he makes the beneficiaries of his bounty. If he has sufficient intelligence to fulfill this definition, imperfect memory caused by sickness or old age, forgetfulness of names of persons he has known, idle questions, physical suffering, will not be sufficient to establish his incompetency. Van Alst v. Hunter, 5 Johns. Ch. 248; Eddy’s Appeal, 109 Pa. St. 406; Guild v. Hull, 127 111. 523. Cornwell v. Riker, 2 Dom. 366. (5) The former will was competent evidence. Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170; Von De Veld v. Judy, 143 Mo. 348.
   GANTT, P. J.

— This is an action to contest the will of 'William Stephens of Platte county, Missouri. The plaintiffs, Mrs. Lindsey and Daniel P. Stephens, are two of the children of William L. Stephens. The defendants are his widow, Mrs. Mary Virginia Stephens, and her four children by Mr. Stephens, and a son, Louis N. Stephens, his child by his first marriage.

On the 21st of January, 1906, William L. Stephens executed the will which forms the basis of this suit. By this will he gave to his three oldest children, Louis N. Stephens, Sarah J. Lindsey, the wife of Walter T. Lindsey, and Daniel P. Stephens, twenty dollars each, and all the residue of his estate, both personal and real, he gave to his widow, Mary Virginia, for and during her natural life, and at her death to be equally divided between his four youngest children, of whom she was the mother, and he appointed Louis N. Stephens and his widow his executors without bond. The will was contested on two grounds: first, that William L. Stephens was not of sound and disposing mind and memory and by reason of old age and sickness he was incapable of making a testamentary disposition of his property; and, .second, on the ground of undue influence exerted by his wife, Mrs. Mary Virginia Stephens, by which he was prejudiced against his other heirs at law and was caused to make his will in behalf of her and her four children to the main portion of his estate. The cause was tried at the August term, 3906, and resulted in a verdict sustaining the will. From the judgment on that verdict the plaintiffs have appealed to this court.

The facts developed on the trial were substantially as follows:

At the time of the testator’s death on the 21st of January, 1906, he was eighty-two years old. He had been twice married. By his first wife he had four children, three of whom survived him. He married a second time in 1880, and there were five children of this second marriage, one of whom had died before her father. At the time of his death he was the owner of eighty acres of land in Platte county and a small amount of personalty. Three of the children of the last marriage were minors when their father died. He had been sick about two weeks with pneumonia. Plis physician testified that he had pneumonia in both lungs, the lower lobe of his right lung and the whole left lung was solidified. He was partially paralyzed, his left arm was paralyzed. This paralysis the doctor attributed to old age. Pie saw him on the day before he died and he said his vitality was failing rapidly. From the other testimony in the case, it appears that the testator’s wife, from the information she received from the doctor as to her husband’s condition, sent for two friends of her husband, at his request, Judge Thorp and Mr. Vermillion. Judge Thorp testified he was acquainted with William L. Stephens in his lifetime. On the 21st of January, 1906, he was at the home of Mr. Stephens. Mrs. Lind'sey, his daughter, told him that her father wanted him to write something and for him to go into the room. Mr. Stephens told him that someone would be there soon from town that could write a good hand, and witness remarked to him that if he wanted any thing written he would do it for him. He asked for a form book that he had, but the witness told him that was not necessary. He then requested his wife and daughter to get an old will and that was brought to him; he then had this old will read over to him, and said he wanted to make some changes in it: that he wanted to give his older children more • than he gave them in that will; that he would like to give them more than that, but he was not able to do so; that he had given them more already than he was able to give the others. He said he had given them five dollars each in the other will and he wanted to make it twenty dollars. He told the witness to read the old will over to him and he read it to him one clause at a time. His daughter, Mrs. Pharis, read it to him the first time. The witness then asked him if he desired it written in that way and he said that he did. Witness then wrote the will one clause at a time and as he would write each clause he would ask if he wanted it that way, and he said that he did. There were two clauses in the will, which, at the witness’s suggestion, he did not recopy. The clause that he omitted was the one in which he requested his wife, in case that she and his two youngest boys should live, to strive to give them an education, but not to sell land for that purpose. The only other change in the will of any importance was the omission from the list of his legatees of Edwin Price, a son, and Pauline Alexander, a daughter, both of whom had died since the making of the first will. After the will was completed, Judge Thorp read it over to him and asked him if that was the way he wanted it and he said it was. After the will was written, he sent for the witnesses to come into the room, Mr. Robbins and Mr. .Vermillion, and then he .attempted to sign the will, but he was too weak to do so. He scribbled on the paper, bnt could not write, and thereupon he asked Judge Thorp to sign his name for him, and then he put his mark on the will and the name was written by Judge Thorp. In regard to the attestation, Judge Thorp testified the signatures of the two subscribing witnesses were written on the will in his presence at the request of Mr. Stephens. “Mr. Bobbins came in and Mr. Stephens said, ‘I am glad to see you. I want to call on you again,’ and remarked that Mr. Bobbins was a witness to tbe other will.” Mr. Bobbins and Mr. Vermillion then signed tbe will in tbe presence of Mr. Stephens and in tbe presence of each other. Mr. Bobbins has since died. Mr. Stephens was at that time very weak physically, but bis mind seemed to be clear. On cross-examination he stated tbe testator was very weak and emaciated, be had been sick about two weeks, bis body was very weak. He could not talk out strong. This will was written on tbe Sunday following tbe day it purports to be written, it was written about two o’clock in the evening of January 21st, but tbe date is tbe 20th. He died tbe next morning after the will was written. Judge Tborp testified that be raised Mr. Stephens up in tbe bed and told him to write bis name; be did not write it, but be undertook to do so, however. We bad to lay him down, be was exhausted from being held up. “I wrote bis name to tbe will and be made bis mark with my assistance.” “I bad to assist him to make bis mark.” At that time be did not say what land or notes he owned and did not call over tbe names of each and every one of bis children. Instead of doing so be told Judge Tborp to read over tbe old will and Judge Thorp and Mrs. Pbaris read it over first, then be told Tborp what changes be wanted made in it and bad it read over clause by clause. His breathing was bad and bard and be got extremely weak. He did not seem to have tbe use of bis band. He was partially paralyzed. He was eighty-two years old. There are some erasures in the certificate made by the witnesses. Judge Thorp testified that he did not get it copied right the first time. He said he was not afraid the testator would die, but he was very weak and it was worrying him very much. The erasures do not appear in any part of the will proper. The witness testified that he dated it on the 20th for fear if he dated it on Sunday it would invalidate the will.

Mr. Vermillion, one of the subscribing witnesses, testified that he knew Mr. Stephens in his lifetime, and signed the document drawn up as his will on January 21, 1906. He did not remember what Mr. Stephens said about the instrument, but he understood that it was his desire that he should witness it.' He testified that was his signature to the will and the other was that of Mr. Robbins. They signed it in the presence of each other. Mr. Stephens was asked to sign the paper and they held the paper up for him, but he could not sign it. He had great trouble in breathing when this will was written. He seemed to know what he wanted when he spoke to the person waiting on him. Mr. Thorp had just finished reading the will to Mr. Stephens. When he went into the room Mr. Stephens seemed to acknowledge the will. “I thought he was dying, he never asked me directly to sign the instrument.” He did not think Mr. Stephens understood the nature of the transaction he was engaged in or the extent of his bounty or the object of his bounty. When the question would be asked him if that was satisfactory, or shall I do this, he would nod his head. Mr. Thorp asked him to sign the will in the presence of Squire Stephens. He asked Mr. Stephens if that was satisfactory and he nodded his head.

Mrs. Pharis, a daughter of the testator, corroborated the testimony of Judge Thorp in all respects as to what occurred as to the request of her father to Mr. Thorp to write the will and of her procuring the old will and the reading of it over to him and his direction to Judge Thorp to write the new will as the old one. He directed the changes he wanted made. Mr. Thorp wrote and read it over to him a clause at a time. Her father was very sick and very weak at the time.

Dr. Schultz testified that he called on Mr. Stephens on Sunday, January 21, 1906, the day of the execution of the will, between nine and ten o ’clock in the forenoon and his mental condition was good at that time. He did not see him after that time before his death. Other witnesses testified that while the testator was very weak at the time he signed the will his mind was clear and he was conscious of what he was doing.

The old will was admitted in evidence by the court as going to the question of the testator’s mental condition and for no other purpose, - fox the reason that the other witnesses had testified that this old will was read to the testator at the time of the execution of the last will. To the admission of this old will the plaintiffs at the time objected and excepted. The inventory and appraisement of Mr. Stephens’s estate was offered and admitted in evidence over the objection of the plaintiffs but neither party has incorporated these documents in their abstract of the record.

On the part of the plaintiffs, Mrs. Lindsey, one of the plaintiffs, testified -that she went to see her father at eleven o’clock on Sunday before he died on the next Monday. He was in great pain, very nervous and restless. He did not have mind enough to hold any conversation with any one. The will was written about two o’clock Sunday afternoon. Mr. Thorp took Ms hand and made the mark to the will, then they laid Mm down and he said nothing, only, “Lay me down.” He said, “Take the tobacco off of the bed,” and he thought he was talking to the hired man, named Cox. Just once in a while he knew us.

Mr. W. T. Lindsey, the husband of Mrs. Sarah Lindsey, testified that the testator did not know his daughter when she came into the room. On the previous Saturday night the testator called him Bud and Frank and all those names. He heard him call Mr. Cox to take the tobacco away. He talked about the covers and handled them like they were tobacco. Mr. Thorp copied the old will; Mr. Stephens never gave any directions to Mr. Thorp about the writing of that instrument. Mr. Thorp put the pen in his fingers and brought his fingers around and made a scratch. Witness thought he would die when they laid him down. Mr. Thorp asked the witnesses to sign the will. Witness never heard that Mr. Stephens requested them to sign it. From the time he went there on F'riday part of the time he knew witness and part of the time he did not. He died on Monday. Witness was in the room when they wrote the will. After they laid him down he could not ask anybody anything. P'art of the time he answered and part of the time he did not.

Louis N. Stephens, one of the executors named in the will, testified that his father got worse about noon on Friday. He did not see his father sign the will. Pie saw Mr. Thorp writing on a stand close by the bed. He did not hear any one ask the witnesses to sign the will. He was excited. I think he knew what he was doing. He testified that his father and mother gave him eighty acres of Kansas land, worth $350', a horse and a cow. His father had eighty acres of land when he died. It was worth sixty dollars per acre.

Daniel Stephens, another son, testified that he was there on Friday a few hours only. In the evening liis father got out of his head and talked about tobacco. He was a little weaker on Saturday. He asked him to have a chair. “I do not know whether he was talking about tobacco that day or not.” He was out of his head when he talked about tobacco. Witness was not there on Sunday. All that his father ever gave him was a horse and cow; never gave him any land.

Mrs. M. Ei. Stephens testified to the extreme debility of the testator at the time the will was made and of his inability to sign the will. • She said that Mr. Thorp did the writing and Mrs. Pharis did the reading to. him.

In rebuttal O. O. Graves testified on behalf of the defendant that Mr. Stephens always recognized him even np to ten minutes before he died. He was too sick to talk much, but he always recognized him. He was a strong man intellectually.

Mrs. Louis Simmons testified that she was the stepdaughter of William L. Stephens, and she was at the home of Mr. Stephens from the time he was taken sick until he died. She was there when his last will was written by Mr. Thorp; she was in and out of the room during all the time; that Mr. Stephens knew what he was doing and knew the time he was to take his medicine and everything. His mind was sound and he knew every thing that was said.

Mrs. Mary Virginia Stephens, the widow, testified and fully corroborated the statements of Judge Thorp and Mrs. Pharis as to what occurred in the sick room at the time the will was drawn and witnessed. Her testimony, denies the exercise of any influence whatever over her husband as to the disposition of his property and the execution of his will. This is sufficient statement of the facts.

I. It is insisted by the plaintiffs that the burden was upon the proponents to establish the due execution of the will and that they have utterly failed to do so, and there was no will. They insist that the testator had not mental capacity to make a will and was not capable of comprehending and did not comprehend at the time the will was written the nature and kind of his property and the persons who reasonably would come within the range of his bounty. They insist that the testator did not know the difference between the bed clothes and a hand of tobacco. And that he mistook his son-in-law, Wat Lindsey, for his farm hand, Prank Cox, and that he was laboring under a delusion as to the provision he had made for his older children. While there was evidence from one or two of the witnesses that at times the testator was flighty and that he spoke about the tobacco and one or two of the witnesses testified that he mistook hisson-in-lawfor his hired man, on the contrary, Dr. Schultz, his attending physician, testified that as late as nine or ten o’clock on the morning of the day on which the will was written at two o’clock in the afternoon, the testator was perfectly rational, and the other witnesses, Judge Thorp and the members of the family, all testified that he was perfectly rational, and in addition to their estimate of his mental condition they testified to the fact that the testator, after learning of his critical condition, sent for two of his old neighbors and friends, Mr. Robbins and Mr. Vermillion, and Judge Thorp; that when they arrived at his home that day he said to Judge Thorp that he had sent for someone who could write a good hand, and thereupon Judge Thorp tendered him his services to do any writing which he might desire. He then directed his daughter to get his book which contained a form of a will, but Judge Thorp told him he could write a will without that form; he then directed his daughter specifically where to find an old will that he had prepared in 1897, and then directed Judge Thorp' to prepare a will containing the same provisions in that will except that he desired the names of two of his children who had died since the execution of the old will omitted from the new one, and also expressed a desire to change the provision that he had made in his former will for his older children by his first wife. He then requested his daughter, Mrs. Pharis, to read the old will over to Mm, and at Ms direction Judge.Thorp wrote the new will clause by clause, reading over each clause to Mm as he wrote it, and he assented and expressed his approval of each clause as Judge Thorp had written it.

The law presumes that a testator is of a sound and disposing mind until there is evidence tending to overcome this presumption. [Jackson v. Hardin, 83 Mo. 175.] "While, of course, the jury were necessarily required to take into consideration the age of the testator, who was then a man eighty-two years old, and the extreme illness with which he was then suffering, these facts of themselves did not constitute him incapable of making a will. The law looks to the capacity of the mind, and if a testator had sufficient understanding and intelligence to know or understand the extent of his property and the persons who were the natural objects of his bounty, and to know the business that he was about and the manner in which he wished to dispose of his property, it was sufficient, and so the circuit court correctly instructed the jury. The jury had before them all the witnesses, and the testimony of the attending physician that the testator was perfectly rational up to nine or ten o’clock of the day on which he executed the will at two o’clock that afternoon, and the testimony of Judge Thorp' and other members of the family, and it was their province to believe their testimony, and if they did, unquestionably the testator knew not only what he was about, but had in mind all of his children, not only those living, but those who had died, and knew that he was making a disposition of his property.

"When it is considered that he had only eighty acres of land on which he was residing and a small amount of personal property, it certainly was not a difficult matter "for him to have his property in mind. The contest of a will is a civil case, and where, as in this case, the capacity of a testator to make the will in question was submitted to the jury under correct instructions, it is not the province of this court to interfere with their verdict. The mere fact that the testator at times was flighty does not outweigh all the other evidence in the case — his recognition of his neighbors when they came to see him up to the very last; his recalling the fact that Mr. Robbins, one of the subscribing witnesses, had also witnessed his former-will, made nearly ten years before that time; his ability to direct his daughter exactly where to find his old will and his direction to Judge Thorp to make practically the same disposition of his property as was contained in his old will; his requiring the old will to be re'ad over to him, clause by clause — all certainly indicating a sufficient capacity to make a will, if the jury believed the witnesses who detailed these facts. Clearly the jury must have believed them or their verdict would have been otherwise. We are clear that this court has no authority to adjudge that there was no sufficient and substantial evidence that the testator had sufficient capacity to make the will.

We might add that the very changes which the testator desired to make in his former will themselves demonstrate the clearness of his conception of thé change in the conditions from the time he made his first will some ten years before that time. During that time two of his children had died and he remembered that he had given only five dollars to his first children in the first will and he desired to increase that in this will.

II. Counsel for the plaintiffs also assail the execution of the will on the ground that he himself did not request the witnesses to sign and attest the same, hut here again they are confronted with the testimony that he had sent for Mr. Robbins and Mr. Vermillion for this very purpose and when Mr. Robbins came into the room and shook hands with him, he remarked to him. that he had witnessed his first will, and he would have to call upon him again for a similar kindly office. Surely no stronger proof has ever been required by any court to show a request by a testator than this to these two witnesses to sign his will. And while Mr. Vermillion could not recall a specific request by Mr. Stephens to him to sign as a subscribing witness, Judge Thorp testified that he requested Mr. Vermillion in the presence of Mr. Stephens to sign the will as a witness, and- asked Mr. Stephens if that, was right and Mr. Stephens expressed his assent thereto. As was said in Hughes v. Rader, 183 Mo. l. c. 700, ‘ ‘ These witnesses were there for the purpose of attesting Mrs. Rader’s will; the will was written by Bruce Rader in their presence; they were all together in a comparatively small room; Mr. George heard Mrs. Rader say she wanted the will written, and says it was written, read over to her, and she was raised up in bed to affix her signature. . . This was all done and said in the presence of both witnesses. They attested the will in the same room in the presence of the testatrix, identify their signatures to the attestation. . . . The mere fact that Bruce requested the presence of the witnesses, or that Mrs. Rader did not proclaim the instrument as her last will and testament and verbally request the witnesses to attest it, is not sufficient to annul the instrument on the ground of noncompliance with the statute. Actions sometimes speak louder than words, and no impartial mind can view the acts and conduct of all the parties in the room where this will was executed, together- with all the conditions and circumstances surrounding the execution of this instrument, and reach any other conclusion than that the testatrix signed this will and that it was properly attested by the subscribing witnesses.” In Schierbaum v. Schemme, 157 Mo. 1, Valliant, J., speaking for this court, said: “It is suggested that it does not show that the witnesses subscribed it at the request of the testator. The whole conduct, however, was a sufficient request. The paper itself purported to be the will of Henry Schemme, it had been read in the presence and hearing of all, and when he said that it was right it was equivalent to a formal proclamation that it was his will, and when he signed it and passed it at the table to the witnesses who signed it in his presence, his act constituted a request that they sign it; it could mean nothing else and was as significant to that effect as if it had been put in formal words.” So here, in view of the fact that these witnesses had been summoned to attest this will at the request of the testator himself; that they were there in the room in his presence and saw him endeavor to affix his signature to it, and failing, saw Judge Thorp write his name for him, and then in his presence affixed their names as subscribing witnesses thereto, we think that there was a sufficient formal execution of the will to comply with the requirements of the statutes.

III. It is insisted that the circuit court erred in' admitting the former will in evidence. It will be remembered that the learned circuit court admitted this former will solely for the purpose of showing the mental condition of the testator and the state of his affection. But not as evidence of the fact stated in that will. It is significant that the testator himself' called for this old will without any suggestion from any member of his family or from the scrivener who was to write the will. The changes in that were few and simple. Two of the children had died and their names were omitted in the last will, a change was made simply in the amount of the bequests to the older children, and at the suggestion of Judge Thorp he omitted the useless grant of power to his executors to sell his real estate for the purpose of paying his debts. With these small changes the last will was a practical copy of the first and tended to show that his affection remained at the last just as it was ten years before when he executed tlie first will. But this question has been set at rest in this jurisdiction by this court in Thompson v. Ish, 99 Mo. l. c. 171. In that case Black, J., says: “Nor did the court err in allowing the witness Rathbun to testify as to the contents of the will of April, 1882. That will, it is true, had been revoked by the execution of the new and the destruction of the old one. The evidence was not, however, offered for the purpose of establishing it as the will of Mrs. Ish. It was offered for the purpose of showing her fixed purpose and intention at that date. . . . By both wills she gave the bulk of the property to James, and they are substantially the same. If, as we have seen, the declarations of the testator are admissible when the issues are want of testamentary capacity and undue influence, then it must be competent to put in evidence, for like purpose, this former will. It tends to show that for a year before making the will in question, she had formed the purpose of giving the bulk of her property to the defendant. The fact that she had formed that purpose at that date tends to show that the present will was not the result of undue influence, exercised by defendant in her last sickness, and when she had become weaker in body and probably in mind. Says Redfield: ‘ Evidence of former wills and of other pecuniary arrangements for the wife is also admissible, as having a bearing upon the question whether the testator has understandingly and of his own free will changed his settled views.’ ” [1 Redf. on Wills (4 Ed.), 538; Jones v. Thomas, 218 Mo. l. c. 543; Von De Veld v. Judy, 143 Mo. 348.]

IV. On the issue of undue influence, the court instructed the jury that it devolved upon the plaintiff to prove the undue influence alleged in the petition, but that it was not necessary that it should be proven by direct evidence but might be inferred from all the facts and circumstances in the case if they were of sufficient probative force to induce tbe jury to believe that the will in controversy was procured by the undue influence of Mary V. Stephens; that by undue influence is meant such influence as amounts to force, coercion or over persuasion which destroys the free agency and will power of the testator; that it must not he merely the influence of affection or attachment nor the desire of gratifying the wishes of one beloved, respected and' trusted by the testator.

These instructions were in harmony with instructions on the same subject requested by the plaintiffs and given by the court and properly declare the law of the case. While the court submitted this question to the jury and the jury found there was no undue influence, it is extremely doubtful whether there was sufficient evidence upon which to submit such an issue to the jury. But of course, the plaintiffs are in no position whatever to complain on this ground. We have been unable to find any error in the admission of the testimony or the instructions of the court. The cause was well tried and submitted to a jury of the county in which all the parties reside and as already said there was ample evidence to sustain the verdict of the jury if they believed it, and such being the case their verdict should not and will not be disturbed. The judgment is affirmed.

Burgess and Fox, JJ., concur.