author: LAMM, J.

text:
    JOHN BERG, Executor and Sole Legatee of ROSALIE BERG, v. AUGUST MOREAU, Executor and Heir of FRANCIS MOREAU, Appellant.
    Division One,
    November 21, 1906.
    1. WILL: Changes in Extremis: Omitting Pious Bequests. An omission from testator’s will, an old man, made as the shadows of death were deepening about him, of a bequest of seventy-five dollars bequeathed by a former will, made a short time previously, for the pious purpose of masses for his dead wife, son and daughter, out of an estate' of Inore than $12,000, all of which was given by the last will to an only son over fifty-seven years old, is suspicious and is to be considered in determining whether the last will was in fact the result of the undue influence of some friends of the son who visited him at the time the last will was drawn and executed.
    2. SPECIFIC PERFORMANCE: Oral Contract: Statute of Frauds: Purpose. Equity will not permit the Statute of Frauds as a defense, when to allow that defense would be itself to commit a fraud against the promisee who has performed the oral contract. The purpose of the statute was not' that it should be used as an aid to perpetrate a fraud. Equity does not destroy it when it steps in and prevents its use to inflict a fraud, but aids, in fulfilling it.
    3. -: -: -: Proof. The owner of 5.3 acres of land, on which in a plain house he lived, worth $1,000 or more, 79 years old, his wife and all his children dead except one son, 57 years old, from whom he had been estranged, somewhat feeble but leading an active life, agreed one year before his death with a woman that if she and her husband would come - and live with him during the remainder of his life and if she would take care of him, minister to his wants and nurse him in sickness, he would give her, by deed or will, the homestead' and the personal property in the house. He had also 85 acres of land nearby worth $10,000 and notes amounting to $2,000. There was no conflict in the testimony that such was the agreement, and that he was not to compensate her in money and that she performed the agreement fully and faithfully on her part. Eleven days before he died he made a will in harmony with the agreement, but eight days later he was visited by friends of the son and then made another will in which he gave to her the furniture in the house and the use of the homestead for two 'years, and she now sues for a specific performanee of the agreement. Beld, that all the rules upon which the right of specific performance of an oral contract to make a will devising real estate in return for promises to be kept and covenants to be performed by the promisee, depends, were met and fully established, and the contract should be specifically enforced.
    4. -; Monetary Value of Services. The fact that the services rendered were of less monetary value than the property promised, is of small moment in a court of chancery called upon to enforce the contract on behalf of a promisee who has faithfully performed it on her part. There are things of more value than money. The thoughtful ministrations of a woman to an old man may be.. And besides, the terms of the contract itself should control, unless unconscionable.
    5. -: Humble Condition of Promisee. A contract made with a lowly and humble person, devoted to menial employments, is as sacred in the eyes of the law as one made with a promisee seated in a high place.
    6. -: Less Burdensome Than Contemplated. And the fact that the burden which the promisee assumed was lighter than contemplated, in that the promisor did not live as long as was expected, is no reason that the contract should not be performed according to its terms.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.
    Affirmed.

      Wm. F. Broadhead and R. H. Stevens for appellant.
    (1) To specifically enforce a verbal contract to convey land or to make a will devising land or bequeathing personalty, tbe contract must be established by clear, definite, unequivocal proof leaving no' room for a reasonable doubt. If. the terms are uncertain or ambiguous, or if not made out by satisfactory proof leaving no room for a reasonable doubt, specific performance will be refused. Gibbs v. Whitwell, 164 Mo. 391; Berry v. Hartzell, 91 Mo. 132; Rogers v. Wolfe, 104 Mo. 1; Railroad v. McCarthy, 97 Mo. 214; Sitton v. Shipp, 65 Mo. 297; Kinney v. Murray, 170' Mo. 674; Viers v. Viers, 175 Mo. 444; Steele v. Steele, 161 Mo. 575; Goodin v. Goodin, 172 Mo. 40 ; Alexander v. Alexander, 150 Mo. 579. (2) Statements, admissions and loose declarations of the party are insufficient to establish the contract charged. Underwood v. Underwood, 48 Mo. 527; Johnson v. Quarles, 46 Mo. 427; Bogers v. Wolfe, 104 Mo. 1; Sitton v. Shipp, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Teats v. Flanders, 118 Mo. 669; Kinney v. Murray, 170 Mo. 674. (3) Having laid down the rule that the proof of the contract must be such as to leave no room for a reasonable doubt, the rule is further established with reference to performance or part performance, that “there must be like proof that the acts performed refer to and result from the agreement, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance.” “There must be no uncertainty or equivocation in the case.” Rogers v. Wolfe, 104 Mo. 10; Sitton v. Shipp, 65 Mo. 297; Emmel v. Hayes, 102 Mo. 186; Ellis v. Bailroad, 51. Mo. 200; Gibbs v. Whit-well, 164 Mo. 387; Underwood v. Underwood, 48 Mo. 527; Alexander v. Alexander, 150 Mo. 579: (4) Enforcement of specific performance is not a matter of absolute right; it rests in the sound discretion of the chancellor, to be governed by the circumstances, and will not be granted if unjust, unconscionable or inequitable, or if it would work a hardship, or injustice to enforce it, and it is unjust to allow $1,600 worth of prop-, erty for services shown to be worth $257. Pomeroy v. Fullerton, 131 Mo. 594; Sease v. Cleveland Co., 141 Mo. 488; Yieth v. Gierth, 92 Mo. 97; Fish v. Lightner, 44 Mo. 272; Taylor v. Williams, 45 Mo. 83; Durretts v. Hook, 8 Mo. 382; McElroy v. Maxwell, 101 Mo. 2.94; Waterman on Spec. Per., pp. 305-306; Brown, Exrx., v. Massey, 138 Mo. 519; In re Ferguson Estate, 124 Mo. 583; Bailroad v. Curtis, 154 Mo: 10; Shinkle v. Yickery, 156 Mo: 10: (5) There was no contract established by legal or sufficient proof, nor any ratification of the contract alleged nor part performance shown by sufficient evidence, and the pleas of the Statute of Frauds should prevail. (6) The plaintiff has an adequate and complete remedy at law either by the proof and allowance of the claim in the probate court against the Moreau estate, which is ample to meet all claims, or by the acceptance of the provisions made in the last will amounting in value to $340, to pay for services valued, according to the testimony, at about $257.

      Geo. W. Wolff for respondent.
    (1) The oral contract or promise sued on was established by proof sufficiently clear, definite and unequivocal, as to leave no room for reasonable doubt in the mind of the chancellor; nor is there any uncertainty or ambiguity in its terms; thus fully measuring up to the test and standard required in cases of this character. And such evidence may consist in declarations and acts of decedent with their attending circumstances. Steele v. Steele, 161 Mo. 575. (2) The admissions and declarations supporting the promise or agreement, as shown by the evidence, were not of that character usually condemned by the authorities because of their vagueness and indefiniteness, or remoteness as to time; they were clear, positive and convincing and all quite recently made and backed up and fortified by the old man’s first will, (a) It is well established that an oral gift or promise may be proven by declarations of donor. Such promise need not be in writing, but it is sufficient if made orally; nor need such promise be clothed in technical and precise terms, but is sufficient if no doubt remains as to promisor’s intentions to promisee. Sutton v. Hayden, 62 Mo. 101; Steele v. Steele, 161 Mo. 575. (b) The paper of February 3, 1902 (or first will), was properly admissible in evidence, not as stowing a contract, tut ty way of ratification, and as stowing tte old man’s then fixed purpose and intent. Hiatt v. Williams, 72 Mo. 214; Thompson v. 1st, 99 Mo. 160; Lillard v. Wilson, 178 Mo. 158. (c) An expressed intention to give is tut little short of a promise to give, and when acted upon ty the intended donee, to his or ter disadvantage, with tte knowledge of tte donor, tte effect of a promise should he given to it. Hubbard v. Hubbard, 140 Mo. 308. (d) Where services are rendered, or a beneficial act is done, tte subsequent assent of tte beneficiary will be sufficient evidence to authorize tte finding of a previous request. Kurr v. Cusenbury, 60’ Mo. App. 558. (3) Tte services rendered (which are conceded) are referable solely to and result from tte agreement. Tte same proof which has left no room for reasonable doubt as to tte latter, has clearly established tte former. All tte facts and circumstances in tte case, the condition and situation of tte parties, corroborates and sustains tte theory of respondent’s case. (4) Appellant’s plea of the Statute of Frauds can be of no avail, as either part or (as in this case) full performance on part of promise is sufficient to prevent its operation. Gup ton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; West v. Bundy, 78 Mo. 407; Starkey v. McDermott, 91 Mo. 647; Hall v Harris, 145' Mo. 621; Green v. Ditsct, 143 Mo. 1; Alexander v. Alexander, 150 Mo. 599; Koch v. Hebei, 32 Mo. App. 103; Marks v. Davis, 72 Mo. App. 557; Ctenowett v. Pac. Ex. Co., 93 Mo. App. 185.' (5) Whilst enforcement of specific performance is not a matter of absolute right and rests in tte sound discretion of the chancellor, there is no reason why respondent should be relegated to ter action at law to recover for tte value of ter services; there is nothing unjust, unconscionable or inequitable in tte contract, nor will its enforcement work a hardship and injustice upon appellant, as claimed; in view of all tte circumstances of tte case, tte value of the whole estate, the situation of the parties, etc., the contract was a fair, just and equitable one, and having been fully performed upon the one side should be performed upon the other. Wright v. Tinsley, 30 Mo. 389; G-upton v. Giupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Hall v. Harris, 145 Mo. 614; Alexander v. Alexander, 150 Mo. 579; Fuchs v. Fuchs, 48 Mo. App. 18.
   LAMM, J.

This is a suit in equity to enforce specific performance of an alleged oral contract between Francis Moreau, deceased, on the one part and Rosalie Berg, deceased, on the other, to make a will devising or otherwise conveying a certain small parcel of real estate in St. Louis county, and bequeathing certain chattels to said Rosalie Berg, in consideration of services to be by her rendered and which, it is alleged, were fully performed.

The chancellor, having decreed specific performance, defendant appealed. After the cause came here, Rosalie- Berg, plaintiff below, died testate, leaving her husband, John Berg, executor and sole devisee; whereupon on suggestion and by stipulation the cause was revived in the name of John Berg as respondent.

The learned chancellor made a finding of facts and pronounced thereon conclusions of law, as follows:

“The following facts are established beyond dispute.
“Francis Moreau was, in February, 1901, 79 years of age. He was somewhat feeble but led an active life and did not anticipate any immediate or sudden death. He lived practically alone. His only child was a son, living apart and somewhat estranged. The son was in independent circumstances, having a house and family of his own.
“Mr. Moreau owned a small homestead of 5.30 acres, worth $1,000 to $1,500, a detached farm of 85 acres of land, worth about $10,000, notes amounting to about $2,000, and a horse and buggy, with some household effects about his house, worth together $135-.
“He needed the assistance of a woman, to live with him, keep house for him, minister to his wants and nurse him in sickness. He secured the services of Mrs. Berg, to stay with him with her husband, for this purpose. He was not to pay her or compensate her in money for her services. This is testified to by witnesses for plaintiff and for defendants. (Testimony of Wielandy, Constantine and Schrader, with that of others.) In lieu of wages he was to give her the homestead of 5.30' acres — for how long is disputed — with the horse and buggy and certain other personal property— which is also in dispute.
“Mrs. Berg, with her husband, moved to Mr. Moreau’s house and faithfully performed the services required of her to' his satisfaction from February 6,1901, to his death,' February 14, 1902. The reasonable value of her services for this period, so far as the same can be estimated in money, was $15 per month for eleven and one-half months, and $3.50 per day for the remaining 23 days, being in all $353.
“The use of the property for two years with the horse and buggy and all the furniture in the house, bequeathed to Mrs. Berg in the last will, were ’ of the value of $335 to $375.
“The disputed or uncertain matters in the understanding or arrangement between Mr. Moreau and Mrs. Berg are two, viz.:
“.(1) What personal property besides the horse and buggy, if any, he promised or agreed to give her.
“ (2) Whether he agreed or promised to give her the homestead property absolutely or only for two years.
“1. The uncertainty or indefiniteness as to the personal property appears in comparing the provisions of the first will with the oral testimony. In the will, which is followed by the petition, the testator undertook to give to Mrs. Berg ‘all my personal property ’ Mrs. Fitzwater (who wrote the will) in her testimony qualifies the words ‘all the personal property’, by the further words ‘everything in the house’ — ‘the house and all there was in it, the house and all his personal property.’ Mr. Sandoz testifies that Moreau stated he had given ‘all his house property to Mrs. Berg and the place too.’ Mr. Schrader testifies that he said ‘he had promised her the horse and buggy and the furniture in the house, and the place,’ etc.
“It is quite clear that in the connection in which the words ‘personal property’ were used, with the words ‘horse and buggy’ they were understood in the common sense, as meaning property of the same character, that is, specific goods and chattels,' and not money or choses in action. They included the household property, goods and chattels and horse and buggy, which were afterwards inventoried and appraised at $135.
“2. There is no uncertainty as to the interest or estate in the homestead property intended, except in Mr. Moreau’s declaration to Mr. Schrader, which is embodied in his last will also, that he had promised to give ‘the place there two years free of rent after his death. ’
“But it should be remembered that this was a declaration in his favor, not proper .evidence in his own behalf (although not objected to), and should be given but little, if any, weight, as against previous declarations against his own interest. These previous declarations had been, that Mrs. Berg was to get ‘the place’ (Testimony of Oldworth); ‘the place’ would belong to her (Genail); he would give ‘the place’ to Mrs. Berg (Levick); she can have ‘that little place, that 5 or 6 acres’ (Wielandy); he was going to give her ‘the property’ where Mr. Moreau lived — 5 acres and something, ‘this property’ (Constantine) ;‘the five acres and thirty one-hundredths’ — ‘this place I will give Mrs. Berg’ (Mrs. Fitzwater); lie would like to have a deed made, was going to give her the place — the home place, the place where he lived — five acres of land (Sandoz); ‘this house and five acres and thirty one-hundredths of an acre,’ giving the boundaries (in the first will, dated February 3, 1902).
‘ ‘ These declarations are too strong and clear to be cut down, to an estate limited to two years by subsequent declarations in his own favor, under different influences, made when his days were numbered, and he could see that, as it was then likely to turn out, Mrs. Berg would have the better of the bargain.
“I. One can not escape the conviction that Mr. Moreau did enter into a parol agreement about February 6, 1901, wherein he promised, in consideration of her removing to his house with her husband and there living with him, keeping house for him, and ministering to his wants and nursing him in sickness, during his lifetime, he would, at his death, convey to her by will or otherwise the homestead place of 5.30 acres with the household goods and chattels in the house and his horse and buggy on said premises. The contract is clear, definite and unequivocal, in all its terms.. There is nothing uncertain, ambiguous, or unsatisfactory in the evidence.
“II. Such agreement, being by parol, could not be enforced if it had not been performed in whole or in part, so that it would be inequitable to- refuse performance. The performance by Mrs. Berg was complete and satisfactory. The acts of performance point unmistakably to the agreement or promise as the inducement thereof, and can not be accounted for in any other manner. Mrs. Berg was a stranger called into the house at the request of Mr. Moreau. She was therefore not likely to work without compensation, or merely for a home and board for herself and husband. The evidence, as well as the character of the work, indicate that she was to be compensated. The evidence also shows that she was not to. be compensated in money. It follows that her acts mnst be referred to the parol promise to compensate her in property, as the only reasonable manner of accounting for her services. They are such as would not have been rendered unless on account of that agreement and with a direct view to its performance.
“III. Specific performance should not be enforced if it would be unconscionable or inequitable, or would work a hardship or injustice. All that can be said against the enforcement of this contract, is that the property given to Mrs. Berg by Mr. Moreau in his last will is about what is reasonable compensation for what she did, and to give her more would be overpayment ; to enforce the contract would give her nearly four times the amount of reasonable compensation. But at the time the contract was made, Mr. Moreau’s reasonable expectation of life was from 4.38 to 4.74 years, and he might have lived much longer. If he had lived out his time, the compensation agreed upon would have been no more than fair. And if he had lived longer, it would have been inadequate. The contract was made with reference to the probability of life, and not with the expectation of an untimely death. It was not inequitable or unconscionable when it was made. Mr. Moreau was at the time in good mental condition, and there is no evidence óf any undue or improper influence. We should also consider the nature of the services agreed upon, which were performed, and which might have been required under the contract. Their value can not well be estimated in money. The law furnishes no standard by which a money value can be placed upon them. Equity can only make an approximation in that direction by carrying out the agreement in which the parties fixed a value between themselves.
“Under all the circumstances of the case, the contract was an equitable and just one, and being fully performed upon the one side, should be performed upon the other.
“If plaintiff will amend his petition as to the description of the personal property, according to the foregoing findings, the decree will be for plaintiff for specific performance, with costs.”

The record presented to us sustains the finding of facts, we think, hence it is adopted as our own so far as it goes. It may be supplemented, however, in certain particulars. Thus: August Moreau, the only son and defendant, was about fifty-seven years old. He had lived in New Orleans and then in the neighborhood of his father, since ’66, part of the time in the city of St. Louis and part of the time in the county of St. Louis, about two miles away from the homestead in question. Up to ten or twelve years before his death, Francis Moreau had a wife and children at home who had died one by one — the last one, a daughter, Christine. Because of unexplained reasons, August and his father were not friendly at times. At other times their relations were more cordial. But, the record does not sustain the theory there ever was a complete reconciliation. The father, when stripped of his family by death and with the hand of age and decrepitude resting heavily on him, declined to live in the son’s family — where the shoe pinched on this score is not disclosed. The son’s bearing toward his father caused him distress and this distress the old man exhibited to others, and he' indicated a lack of testamentary disposition towards the son because of alleged unkind treatment. On being inquired of in this behalf on the stand whether his father had not expressed himself many times as intending to disinherit him because of unldnd treatment, August answered: ‘ ‘ That has nothing to do with family affairs. You fall out with your wife and I with mine, and we come together again as man to man.” In response to another question, he said, “Father and I made up and took a glass of beer.” It seems they visited each, other very seldom, but it also seems that when the father was sick the son always visited him, or inquired about him, and for a few days, towards the end of his last sickness, the son was his constant attendant.

The homestead, the subject of controversy, was but a short distance from the valuable farm of eighty odd acres belonging to the father, referred to in the finding. It (the homestead) was planted in fruit and had on it a dilapitated old house, originally one room and a porch, but the porch had been inclosed for a kitchen; the dwelling was of trivial value and called a “shanty” in evidence. Connected with the house was a wine cellar, and one witness testified that “the best part of the house was the cellar.” As found below, there was evidence that this homestead was of the value of from $1,000 to $1,500. There is also evidence that Francis Moreau valued it at from $800 to $900', and offered it at that sum prior to the Bergs’ coming to live with him — at a time he contemplated quitting the country and going to France. To his estimate of the value must be added his subsequent improvements, of the worth of, say, $200, which (with a possible rise in value), agrees with the finding of the chancellor. After the-daughter’s death, the father continued'to live there until he died in February, 1902.

As Ms name indicates, he was a Frenchman and seems to have been a man of sprightly traits, given to hospitality and of good neighborly disposition. As said in the finding of the chancellor, he was somewhat feeble and, it may be further said, that off and on he was sick — would be up and down, in the homely phrase of some witnesses, and needed and craved compamonship and nursing. A young daughter of a nearby neighbor came over every day for a long period, somewhat as a companion and to do what she could of his simplehousekeeping. The neighbors took an interest in him and there is evidence indicating that he was at their mercy for any kindly offices when ill and lonely. At this time, there was a family some miles away, also French bom, — the Bergs — consisting of a husband, John, and his wife, Rosalie. They were in humble walk in life — ■ both doing neighborhood work for a livelihood — and living in a small tenement. At some time, not disclosed, Francis Moreau became acquainted with the Bergs, who seemed to be honest and estimable people, well-liked by him. At odd spells Rosalie Berg came to Moreau’s to do house work for him, and he evidently liked her ways so well that early in 1901 the old man conceived a plan of bringing the Bergs over to- Ms place to live with him. To this end he entered into an agreement with them, evidently of a permanent character of some sort. Accordingly, he enlarged the old house by building a small addition to accommodate Rosalie Berg and her husband. He told the neighbors, in effect, that he had made an arrangement with the Bergs to cast their lot with him and take care of him the balance of his days, and that he added to his. house for that purpose and to suit Mrs. Berg, and that she was to have the homestead and certain personal property for her services to him. The character and scope of this agreement are set forth in the aforesaid finding of facts and need not be further detailed.

In February, 1901, John Berg and his wife moved to Moreau’s, and thereafter all of them lived as one family; and the evidence is all one way that Mrs. Berg was his faithful and kind attendant, day in and- day out, from that time until death parted them. There is not a scintilla of evidence that she was remiss in any pious service of hand or foot or look or word or kindly disposition to minister unto- him, whether at his beck and call or in the more delightful form of anticipating his wants and wishes.

During the year, a neighbor was applied to to write a will, but he preferred not to do so. Early in February, 1902, when his last sickness was on him, another neighbor, Mrs. Fitzwater, wrote a will at his dictation (which will he duly executed) as follows:

“February 3,1902.
“I, Francis Moreau, of Creve Coeur, St. Louis Co., ' Mo., being of sound mind do hereby make and publish the following as and for my last will and testament (1) I will Mrs. John Berg this house and five acres and thirty hundredths of an acre provided she stays and takes care of me as long as I live I will her this house and everything in it my horse and buggy and all my personal property I will that one hundred dollars be spent for masses for my wife my son Alex my daughter Grustine and myself twenty five each and one hundred for my burial twenty for my name being enscribed on the monument in my lot the residue of my property I will to my son August Moreau. This house I will Mrs. John Berg is bordered on the north by Lackland ave on the south by Herman Cropert on the west by Lucy Woodson and on the east by Herman Cropert.
“I hereunto subscribe my hand and affix my seal this 3 day of February, A. D. 1902.
‘ ‘ Francis Moreaij. [Seal.] ’ ’

There is evidence that Mrs. Berg had been somewhat anxious that a will should be written, and her anxiety, we think, can naturally be referred to the original understanding she had with Mr. Moreau and to the precarious condition of his health. A few days later some acquaintances of Mr. Moreau, entirely friendly to the son’s interest (and we think in his interest), took it upon themselves to visit the old man, then about to give up the ghost. The evidence bears the construction that they went there determined to see if he had made a will. We think, furthermore, that August was solicitous about the testamentary disposition of his father towards him and that the visit of these neighbors hinged upon that solicitude. Precisely what occurred at that visit is neither fully nor satisfactorily uncovered, because there are discrepancies between thewitnesses, but the upshot of it all was that these neighbors, or one of them, called for and got a lengthy private interview with him, and, as the result of their visit and the ostensible interest they took in his affairs, a new'will was then and there written and executed on the 11th of Febuary, 1902, as follows:

“Creve Coeur, February 11th, 1902.
“I, Francis Moreau, of Creve Coeur, St.Louis Co., Missouri, being* of and disposing mind and memory, but aware of uncertainty of life, do hereby make, publish and declare this my last will and testament, hereby revoking any and all wills by me before made.
“It is my will that my just debts, together with my funeral expenses, be paid out of my estate, also $25.00 (Twenty-five dollars) for masses for my soul.
“All the rest, residue and remainder of my estate, real and personal, which I may own or be entitled to by in law or equity at the time of my death, I give, devise, and bequite unto my son, August, given him the right to sell and re-invest as he may desire.
“To Rosalie Berg I bequite my horse and buggy and all the furniture in the house, and the lease of the place for 2 two years after my death, free of charge.
“I herewith nominate and appoint my son, August Moreau, as the executrix of last will and request that he not be required to furnish bond as executrix.
“Witness my hand and seal this 11th day of February, 1902. Frangís Moreau.”

It could not be found, and was not found below, that Francis Moreau was of unsound mind when he executed this last will. But it should be said, as a circumstance in the case, that the shadows of death were deepening about him when it was executed. We think, furthermore, it is fairly inferable from the testimony of appellant’s witnesses, that he was greatly agitated as a result of the interview and we much doubt if the will would ever have seen the light of day had it not been for that visit and that interview.

It will be seen at a glance that the son was benefited materially by this last testament; for not only was the fee simple devise to Mrs. Berg cut down to a term of two years, but, singularly enough, the son was further benefited by omitting from the last will the provision of the first to, the effect that $75 be spent for the pious purpose of masses for testator’s dead wife, his dead son and his dead daughter. That so peculiar a change should be made in the will of a man on his deathbed can be most naturally explained as the result of the guided and interested (not to say mercenary) hand of a person or persons having dollars, rather than religious sentiment, in mind, and it was, not likely to have been a thought originating with the devout Catholic then m extremis.

Three days later, February 14, 1902, Francis Moreau died. His last will was duly probated and August Moreau took upon himself the burden of administering upon the estate in accordance with that will. The first will was introduced in evidence as somewhat corroborative of the original testamentary contract set forth by plaintiff in her petition and found to exist.

Defendant pleaded in his answer, and here relies upon the Statute of Frauds. He contends, furthermore, that the contract was not established by clear, definite and unequivocal proof — proof leaving no room for reasonable doubt in the chancellor’s mind. That the terms of the contract proved were uncertain and ambiguous. That the statements and admissions of decedent in proof were mere loose declarations insufficient to establish the contract. That the acts claimed to be in performance of the alleged contract (and relied upon by respondent as filling that office) were not such as would not have been done unless on account of that very agreement and with a direct view to its performanee. And respondent contends, further, that the enforcement of specific performance is not a matter of absolute right, but rests in the sound discretion of the chancellor, to be governed by circumstances, and will not be granted if unjust, unconscionable or inequitable, as, respondent says, the contract in this case was.

In view of these contentions, was the decree right? And should the conclusions of law pronounced by the court below be adopted by us on a re-examination of the whole record?

I. Our statutes denouncing as void a certain class of contracts unless evidenced by writing, Revised Statutes 1899, chapter 31, borrowed from 29 Car. II, c. 3, are a monument to the deep wisdom of ages gone, and in their purpose and scope- are leveled at preventing the commission of frauds and perjuries by drying up at least some of the springs from which theyflow — closing the door through which they enter. [Russell v. Sharp, 192 Mo. l. c. 284-5.]

The old common-law lawyers saw with reluctance equity step in and administer this plain, written law in accordance with equitable rules — the controlling one of which is said by Black (Black’s Law Diet., tit. Equity) to be “the rule of doing to all others as we desire them to do to us; or, as it is expressed by-Justinian, ‘to live honestly, to harm nobody, to render to every man his due'.’ [Inst. 1,1, 3.] ”

If we may be permitted a modest speculative flight, it may be said that (if it were not for the fact that the statute relating to frauds and perjuries was enacted during the reign of the grandson of James I and, hence was not in existence during the reign of the latter king), doubtless, in the memorable controversy before James in the great case of Law v. Equity wherein the sour and learned Coke argued for the Law and his renowned rival, Bacon, argued for Equity, with discourse flying high they would have broken a lance with each other in the lists of reason on the right of equity to suspend or modify the operation of the Statute of Frauds under any circumstances whatever. Be that one way or the other, certain it is that under given conditions the naked wording of the statute may be gently wrested somewhat by equitable interpretation and exposition in order to advance the underlying reason of the thing and this was early settled and has long been held by the courts of England and America. [4 Pom., Eq. Juris, (3 Ed.), sec. 1409.]

Nevertheless, equity did not come to destroy the law, but to fulfill the law. The very heart of the statutory purpose to be subserved, the remedy to be advanced, being to prevent the commission of frauds and perjuries, that purpose is subserved in equity by not allowing the statute as a defense when to allow such defense would be itself to commit a fraud against the promisee who has performed the contract. Says V allí ant, J., in Russell v. Sharp, supra, p. 285: “But when a court of equity exercises this authority it by no means brushes aside the Statute of Frauds or impugns its wisdom; on the contrary, it is so careful to see that the fraud which the statute was designed to guard against is not perpetrated that it really adds to the statute a new strength by demonstrating that it may be so administered that justice will not suffer or the statute be made the instrument of the very evil it was designed to prevent. And how does a court of equity accomplish this ? By the simple common-sense rule of requiring one who invokes the aid of equity in such case to prove his case, not by vague or shadowy evidence, not even by a mere preponderance of evidence, but by evidence so unquestionable in its character, so clear, cogent and convincing, that no reasonable doubt can be entertained of its truth; that no such doubt can linger either as to the existence of the contract or the certainty of its terms or that, the plaintiff has wholly performed his part.”

To the same effect is a long and unbroken line of pronouncements by this court, one more sample of which must suffice. Says Brace, J., in Kinney v. Murray, 170 Mo. l. c. 700: “A court of equity in this State will specifically enforce an oral contract to make a will in a particular manner, where a valuable consideration has been received for the promise and a fraud would be perpetrated upon the promisee or beneficiary unless the contract be performed. But, the proof of such a contract must be so cogent, clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character; and where the consideration consists of acts to be performed, there must be like proof that the acts performed refer to and result from that contract, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance. ‘There must be no equivocation or uncertainty in the case.’ ”

The ground upon which the equitable remedy stands is stated by the Supreme Court of Maine as follows (Woodbury v. Gardner, 77 Me. infra p. 70): “The ground of the remedy is an equitable estoppel based on an equitable fraud. After having induced or knowingly permitted another to perform in part an agreement, on the faith of its full performance by both parties and for which he could not well be compensated except by specific performance, the other shall not insist that the agreement is void.....In other words, the Statute of Frauds having been enacted for the purpose of preventing frauds should not be used fraudulently.”

II. The principles upon which the right to specific performance of an oral contract to make a will devising real estate in réturn for promises to be kept and covenants to be performed by the beneficiary being well established, to be not only that some contract existed, but that the specific contract sought to be enforc- • ed existed; not only that some contract was performed by the beneficiary, but that the identical contract sued on was performed and that the acts relied on to show performance should point unvaryingly as the needle to the pole to the contract in suit -and to no other; and that the contract is not biting or against conscience, and those principles being further well-settled as requiring a high and stringent character of proof, to-wit, proof so impelling, so definite and clear that there can be no reasonable doubt of the existence of a contract, of its terms and of its performance; and not only so, but that there is no adequate remedy at law in money recompense, %. <?., that substantial justice, under the circumstances in judgment, requires the performance of the contract in kind and that it would be a fraud on the promisee not to perform — we say all these things being true and therefore taken as assumed, the question here is whether this case is controlled by said principles? The chancellor below in his conclusions of law and decree said it was — and we think he was right.

We content ourselves with adopting the finding of the chancellor without going into the many details of the evidence. It is sufficient for our purpose to say that the oral testimony did not relate to a contract sought to be established by loose, ancient conversations, such as exclaimed against by the courts, but to a contract established by fresh conversations, admissions and formal statements made at a time and under circumstances likely to command the attention of listeners. The testimony did not leave the ease to conjecture — was not ambiguous, was heavily for the plaintiff’s theory; shows a contract existed between Francis Moreau and Eosalie Berg; shows that Francis Moreau had that contract in mind when he executed his first will and that said will was made in performance of the agreement, at least was corroborative of it; shows the terms of the contract were as found by the chancellor; shows rounded-out performance on the part of Eosalie Berg; and further shows, in our opinion, that it was a reasonable contract — i. e., one not unjust, inequitable, singular in its terms or unsuited to tbe condition of tbe parties or the circumstances surrounding appellant’s ancestor.

III. In this condition of things, the way we look at it is that the father of appellant impressed upon his estate the obligation and burden of procuring for his last days the ministrations which his age and feebleness craved, but which were somewhat denied him as a tribute of affection from blood kin, and we are of the opinion that the son should take the estate cum onere, that is, diminished by the full performance of that contract.

And this is so because the services of Rosalie Berg are not susceptible of being nicely measured by a mere money yardstick. Appellant’s learned counsel make a close and ingenious calculation in dollars and cents and they fortify that calculation by evidence showing that Mrs. Berg would have been well paid (as the custom of the country ran in prices) by awarding her a money judgment of, say, two or three hundred dollars, or by forcing her to accept the terms of the last will— and they ask us to drive a keen bargain and adjust the controversy by adopting that notion. One trouble with this view is that it is directed to a.court of conscience —a court in which the jingle of the guineas of a mere dry money recompense cannot cure the hurts of a broken contract relating to services such as were performed in this case. Another trouble with this view is that appellant’s ancestor and Rosalie Berg did not make that kind of a contract. The vice of the contention is pointed out by Sherwood, J., in Sutton v. Hayden, 62 Mo. l. c. 114, thus: “There are things, which money cannot buy; a thousand nameless and delicate services and attentions, incapable of being the subject of explicit contract, which money, with all its peculiar, potency, is powerless to purchase. The law furnishes no standard whereby the value of such services can be estimated, and equity can only make an approximation in that direction by decreeing tbe specific execution of tbe contract.” [See, also, remarks of Valliant, J., arguendo, in Lynn v. Hockaday, 162 Mo. l. c. 126.]

As put by Virgin, J., in Woodbury v. Gardner, 77 Me. l. c. 59, supra: “When a party to an agreement, fair and just in its terms, understandingly entered into and concluded, is injured, without default on his own part, by the non-fulfillment of the other party, the most direct and satisfactory remedy which he instinctively seeks is specific performance. This practical result he cannot obtain by the common law, for that measures all losses by money; but equity comes in to supply this more complete justice, and has laid down certain rules of relief by which, when its circumstances bring it within them, every contract susceptible of substantial enjoyment may be enforced.”

IV. Appellant’s learned counsel argue as follows: “The plaintiff and her husband were evidently poor, living in a small rented house, he working around as a laborer, and she doing such woman’s work as she could get in the neighborhood, evidently of a menial character. It was a godsend to them to have a. new room free of rent, with free board. He could and did continue to work around the neighborhood, and she by the move had steady employment, working right at home without having to go out to seek for it. What hardship or sacrifice on her part was occasioned by the move, or what injustice could be done her not to enforce the contract, would require a vivid imagination to conceive. ’ ’ '

But will it do for us to say that the Bergs were poor and ate their daily bread in the sweat of their brows — lived humbly and dined scantily from hand to mouth out of a precarious daily wage at a rented fireside and hence, in some bitter way, these facts should control the equities of this case? The animated language of the learned jurist, just quoted from the Sutton case, takes no note of poverty or humbleness. It proceeds on the lofty plane that a contract made with a lowly one is as sacred and as binding and as readily to be enforced as a contract made with one seated in a high place. It proceeds on the theory that services rendered by the poor and obscure are as full and rich in sentiment and as deserving of every remedy allowed by the courts as services rendered by the rich or the happily-eircumstanced.

For aught we know this lonely old Frenchman longed for the accents of his mother-tongue, and the pleasant memories of his youth awakened thereby softened the distress of fourscore years. Certain it is that he took no note of the fact that the Bergs were poor and obscure, and why should wef It would seean to be the crowning glory of the law that its benediction falls, like the rain and the dew of Heaven, on all alike.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ROBERT J. HILL et al. v. LUCRETIA A. BOYD et al., Appellants.
    Division One,
    November 21, 1906.
    1. WILL: Incapacity: Conflict in Substantial Evidence. Where there is substantial evidence, on the one hand, that testatrix was of sound and disposing mind and memory at the time the will was drawn and executed, and, on the other, that she was at the time insane and remained so till her death, the appellate court will not disturb the verdict of the jury finding her incapacitated to make a will, if the question was submitted to them upon proper instructions.
    2. -: -: Facts in Evidence. Two of the witnesses to the will testified that testatrix was not capable of making a will, and based their opinion on the facts that she was very old,' was seriously sick with lagrippe, had previously been insane and did not recover from her sickness and became entirely insane before she died,'did not recognize them, turned her head to the wall while it was being written, talked randomly and irrationally, did not seem interested in its preparation or execution, was held up to sign it, and only about half wrote her name and said she could not finish it and it had to be finished by the scrivener, and while it was being written said nothing more intelligent than, “I suppose they will do what is right about it, they say they will.” A son testified that she was on that night insane, the night before and that following was unconscious, did not know him, tore and pulled at the bed clothes and at times had to be held in bed. Other witnesses testified that a few days previously she was so much out of her head that she grabbed and tore off a watch chain from one of them, did not recognize her children and old acquaintances, and acted as an insane person. On the other hand, witnesses for proponents testified that on the day the will was executed she was rational, gave full directions to the sqrivener for writing the will, recalled all her relatives and property, and sent for a certain lease in order to get a description of the land. Held, that this was substantial evidence both of her capacity and incapacity to make a will, and the instructions being correct a verdict of the jury setting aside the will will not be disturbed.
    3. -: -: Instructions Approved. Instructions in this case, in all respects the same as those approved in Goodfellow v. Shannon, 197 Mo. 271, are approved on the authority of that case.
    Appeal from St. Francois Circuit Court.— Hon. Robt. A. Anthony, Judge.
    Affirmed.

      Benj. H. Marbury and John H. Malugen for appellants.
    (1) The court erred in, giving respondents’ instruction 3, for the reason that it is misleading in that it attempts to blend, with equal force, the effect of an emaciated body and a deranged mind. Old age and physical infirmities, or illness, do not constitute testamentary incapacity. Yon de Yeld v. Judy, 143 Mo. 348; McFadin v. Catron, 138 Mo. 197; Crowson v. Crowson, 172 Mo. 691; Jackson v. Hardin, 83 Mo. 175; McFadin v. Catron, 120' Mo. 252; Hughes v. Rader, 183 Mo. 630. (2) The court erred in giving respondents’ instruction 5, for the reason that after appellants showed the formal execution of the will as required by the statutes, and two of the subscribing witnesses had testified to testatrix’s sanity, and that she was of proper age to make a.will, a prima-facie case was made; and it then devolved upon the respondents to overcome this prima-facie case by substantial evidence; whereas, by this instruction, the court placed upon 'appellants the burden of showing testamentary capacity by the preponderance of testimony, in addition to establishing their prima-facie case. Carl v. (label, 120- Mo. 283; Mc-Fadin v. Catron, 138 Mo. 197; Yon de Yeld v. Judy, 143 Mo. 348; Fulbright v. Perry County, 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276 ; Jackson v. Hardin, 83 Mo. 175; Hamon v. Hamon, 180 Mo. 685; Hughes v. Rader, 183 Mo. 630. (3) Mere opinions of witnesses, unaccompanied by any testimony showing any particular act or fact evidencing incapacity, do not make out a case of incompetency when the testimony shows that the testatrix knew what she was doing and to whom she was giving her property; Southworth v. Southworth, 173 Mo. 59; Sehr v. Lindemann, 153 Mo. 276; Crowson v. Crowson, 172 Mo. 691; Hughes v. Bader, 183 Mo. 630. (4) However unjust a testatrix may be to any one or more of her children, if she is competent to make a will, she has a right to dispose of her property as she pleases; and it is unsafe for courts and juries to look to the will’s equities, less they fall into greater mischief of making wills for other people. Catholic University v. O’Brien, 181 Mo. 68; Jackson v. Hardin, 83 Mo. 175; Hughes v. Bader, 183 Mo. 630. (5) The law does not require any particular degree of understanding or capacity to justify the making of a will. The test of capacity to make a will is that the testatrix be capable of comprehending all of her property and all persons who reasonably come within the range of her bounty, and have sufficient intelligence to comprehend her ordinary business, and to know what disposition she is making of her property. It must, therefore, follow, that there was no substantial evidence that the testatrix did not possess mental capacity, as above defined, and that tbe court fatally erred in not so declaring as a matter1 of law, and instructing tbe jury to find for tbe appellants. Hughes v. Rader, 183 Mo. 630; Hamon v. Hamon, 180 Mo. 685 ; Catholic University v. O’Brien, 181 Mo. 68; Sehr v. Lindemann, 153 Mo. 276; Riggin v. Westminster College, 160 Mo. 570; Woods v. Carpenter, 166 Mo. 465; Crowson v. Crowson, 172 Mo. 691; Southworth v. Southworth, 173 Mo. 59; Jackson v. Hardin, 83 Mo. 175'.

      William 8. Anthony and William H. Young for respondents.
    (1) A suit to contest a will is an action at law, and when there is substantial, although conflicting evidence upon a proposition, it should be submitted to the jury and its finding will not be disturbed by the Supreme Court. Goodfellow v. Shannon, 197 Mo. 271; Sayre v. Trustees Princeton University, 90 S. W. 794; Young v. Ridenbaugh, 67 Mo. 574; Schaaf v. Peters, 90 S. W. 1040; Pulbright v. Perry County, 145 Mo. 443. (2) Instruction 5 is proper, and is an exact copy of an instruction approved by this court in the case of Good-fellow v. Shannon, 197 Mo. 271. It simply places the onus upon defendants (the proponents of the will) to show proper execution and attestation, and that the testatrix was of sound mind. This burden has always been upon defendants in will contests. Goodfellow v. Shannon, 197 Mo. 271; Carl v. Gabel, 120 Mo. 295; Norton v. Paxton, 110 Mo. 467; Craig v. Craig, 156 Mo. 362; Maddox v. Maddox, 114 Mo. 46. (3) Respondents’ instruction 3 was approved in Goodfellow v. Shannon, supra. We do not think this instruction is error. One of the first requisites of a sound and disposing mind is that it should be able to comprehend the business in hand. The books and cases add other tests, but this is one of the tests, and if the mind for any reason fails to pass this test, it'is pot a sound and disposing mind. If the mind was not in condition to understand the business in hand, when undertaking to formulate a will, it would be useless to ask for other or further tests, as, for instance, the ability to comprehend the general nature and extent of the property and to whom it was being given, and the several other tests prescribed by the books. That the test required by this instruction is the first test mentioned in the adjudicated cases and textbooks hardly requires citation of authority. Goodfellow v. Shannon, supra; Schouler on Wills, sec. 68; Couch v. Gentry, 113 Mo. 266; Lorts v. Wash, 175 Mo'. 502. (4) An examination of the record of the' testimony of the witnesses for plaintiffs mil disclose the fact that the contention of defendants, that the testimony of said witnesses was simply an expression of their opinion as to the capacity of testatrix to make a will, is not well founded. The record fails to disclose anything in violation of what was said by the court in Hamon v. Hamon, 180 Mo. 685; Crowson v. Orowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 530; Goodfellow v. Shannon, supra.
   GRAVES, J.

This suit, brought in the circuit court of St. Francois county, is one contesting the will of Lucretia A. Hill, deceased. Plaintiffs and defendants are .her heirs at law. Grounds of contest, mental incapacity and undue influence upon the part of defendants. Upon trial the court sustained a demurrer to the testimony as to the question of undue influence, but submitted the matter to the jury upon the question of testamentary capacity of the testatrix and the jury returned a verdict, signed by eleven jurors, in favor of contestants. After unsuccessful motion for new trial, the cause was appealed to this court by defendants.

There were three witnesses to the will, John H. Malugen, the scrivener, Jno. W. Shaner and Berry Snyder. Upon the part of the contestants the evidence shows that the testatrix was an old lady, 82 years of age; that the alleged will was executed January 21, 1899 ; that on Thanksgiving day, 1898, testatrix was taken with a severe attack of la grippe, which affected her mind; that from this date she grew gradually weaker, physically and mentally, until October, 1899, when she died, at the time a raving maniac. Snyder and Shaner, two of the attesting witnesses, testify to their presence during the time the will was being written by Mr. Malugen; they observed and described her ates during the time and testified that in their judgment they did not consider her competent mentally to make a will. Among other things Snyder said:

“Q. I will ask you if you didn’t state there at Graff Buchanan’s house in the presence of these parties, shortly after her death (Mrs. Lucretia Hill, testatrix) that at the time she (testatrix) made this will she was insane and didn’t- know what she was doing? A. No, I did not make that remark. I don’t think I did. I will tell you the remark I did make. I said I didn’t think she was capable of making a will.
“Q. What do you say about that now? A. I am just like I was that day.
“Q. You don’t think she was capable of making a will? No, sir, I do not.
“Q. Then, Mr. Snyder, what do you mean by saying that she was not capable of making a will? A. Any person as old as she was and been sick as long as she had, and out of her head, crazy, before, I don’t think she was capable of making a will. The first time I was ever in the house was the day the will was wrote.
“Q. How long had you known her (testatrix) prior to that time? A. Fifteen or twenty years.
“Q. During that time how near had you lived to where she lived? A. Five or six miles.
“Q. I understand you to say-that she (testatrix) was not capable, of making a will? A. I said I did not think she was. Any old person as old as that, and been insane before and afterwards, I don’t think is capable of making a will. ’ ’

Shaner says, among other things:

‘ ‘ Q. Then you lived within 250 yards of the residence of testatrix? A. Yes, sir.
‘ ‘ Q. Did you or not know Lucretia A. Hill during her lifetime? A. Yes, sir, I had known her quite a while.
“Q. What was her age at that time, if you know? A. Well, I don’t know her exact age. She was very old.
“Q. • What was her mental and physical condition? A. Well, she was physically very weak and childlike.
“Q. Where did you find Mrs. Hill? What was she doing.? How was she lying in bed? A. Lying on her back in the bed.
“Q. What was she saying and doing? A. Well, I don’t know that she was saying anything until we went in and spoke.
“Q. Did she know you, Mr. Shaner? A. I don’t think she did.
“Q. You had known her for years before that? A. Yes, ten or twelve years.
“Q. Did she or not recognize you at any time you were in the room? A. Well, I don’t know. I can’t say that she did. I suppose that she did when we spoke to her. I spoke to- her the first one and told her who I was, and she wanted to know why Mrs. Shaner didn’t come.
“Q. Tell the court and jury how she acted and what she did. Explain her condition as near as you can. A. Well, Mr. Malugen was there to write the will, at least he wrote one. I can’t say who was the first one spoke about writing the will. She .would not recognize any one till they shook her.
“Q. State all she did and said. A. Well, I can’t say whether it was Mr. Malugen, but I think he said something about writing a will.
“Q. Well, in yonr opinion, Mr. Shaner, from what you saw and heard her say, did she know what she was doing. A. Well, at times she seemed to know what she was doing. While Mr. Malugen was writing the will unless somebody was speaking to her she would throw her head to the other side and mumble and talk to herself?
“Q. How long would she mumble? A. Most of the time unless somebody said something to her.
“Q. Did she seem to know what she was doing at the time she was doing this? A. I don’t think she did. Mr. Snyder, and I raised her up in bed and Mr. Malugen held the book while she tried to write her name. She wrote about half of it I think and Mr. Malugen helped her finish it.
“Q. Mr. Malugen held her hand and wrote the balance of her name? A. Yes, sir.
“Q. Then she did not sign her own name to that will? A. She attempted to and could not finish.it. She stopped and said, ‘I can’t write it.’
“Q. What was her condition at the time she would be mumbling and talking to herself? Where were her eyes? A. I could not see her eyes, she always turned her eyes from us.
“Q. Did you hear Mr. Snyder talk to her during that time ? A. I heard him when he went in and spoke to her. She didn’t recognize him. She said she did not know who he was.
“Q. Well, did you tell her who he was? A. I think it was Mr. Boyd told her, as well as I remember.
“Q. Don’t you believe she knew she was making a will? A. I believe she could have been made sign most any kind of old paper as far as that was concerned.
“Q. Don’t you believe she knew she was making a will? A. I don’t hardly think she did.
“Q. Well, why don’t you think hardly? A. Some parts of the time she seemed to he rational and part of the time she did not.
“Q. Well, while she talked to yon, you said she was rational. A. Yes, sir.
“Q. Well, while I was drafting the will? A. She had her head turned.
“Q. Was she asleep? A. No, sir, 1 don’t think so>. As I said awhile ago, she had her eyes closed.
“Q. How do yon know she was not asleep? A. I don’t think she had time to go to sleep.
“Q. During the time she was talking to herself what was she saying, if you know? A. One thing in particular, she made some remark, ‘ I suppose they will do what is right about it, they say they will.’’ What she meant I don’t know.
“Q. Then how is it you understood this? A. I could not understand all the time, I said part of the time. She said it the same way several times, ‘I guess they will do what is right about it, they say they will. ’
‘ ‘ Q. You thought at that time she was in what condition, when she was mumbling to herself? A. She was just in a condition she talked to herself, that is all I can say.”

jRobert J. Hill testified:

“ Q. Who had been with your mother all that morning before Mr. Boyd went to Bonne Terre? A. Mr. and Mrs. Boyd were there with my mother. Mr. Boyd made the remark that ‘he thought mother was going to die the night before. ’ I sat up with her until about 9 o’clock. She was out of her head, seemed to be very feeble and had no mind. She had to be held in bed. She was tearing the bed-clothes and pulling at the bed and tearing the bed-clothing off. Sometimes it took two or three to hold her in bed.
“Q. How long was that before the making of the will? A. Several days. From the time she first took sick, that was on Thanksgiving day, from then she grew worse.
‘‘Q. State how she acted on the day of making the will. A. I passed through the room once that day and she seemed to be sleeping. That night she seemed to be out of her head and the night before.
“Q. What did she. say the day of the night before the making of the will and the night of the making of the will? A. She talked at random when any of them came around. I kept at a perpetual distance. I tried to keep away from her, and once I wanted to take her some water and Mr. Boyd says, ‘No, the doctor told me to wait on her.’ I took her the water and she threw the water out. Seemed to me she tried to throw the water on me. '
“Q. Prom what you saw of your mother, what ■ would you say about her mental condition on the day before the making of the will, the day of the making of the will, and the night.of the making of the will? A. She was in a very critical condition.
“Q. What was her mental condition? A. She was insane.
“Q. How long did she remain in this condition after the making of the will? A. Until October 21st.
“Q. She remained in that condition? A. Yes, sir, her mind gradually grew worse, until she lost her mind entirely.
“Q. Hid she or not recognize you at any time the night of the making of the will, the day before and the night before the making of the will? A. No, sir, she did not. That night she was raving.
“Q. What night? A. On Sunday night.
“Q: Who was present? A. Mr. Boyd and family all in there.
‘‘ Q. You say she did not know you? What opportunities did you give her to recognize you ? A. I went up to her and spoke to her and she did not say anything.
“Q. How do you know she did not recognize you? A. She seemed too flighty, out of her mind. She talked at random.
“Q. Did she look at you? A. Yes, sir. She would grab hold of you by the hair or any place she could get hold of you. This was the night before the will was made.”

This testimony bears directly upon her condition the day of the execution of the will. In addition there was other testimony showing her mental condition a few days prior, in which it appears that she was so much out of her head that she grabbed and tore off a watch chain from one of the witnesses; that she did not recognize her children and her old acquaintances; that she acted as an insane person; these things occurred within a week or ten days of the execution of the will.

On the other hand, the testimony of witnesses for the defendants was to the effect that on the day of the execution of the will she was rational; that she gave full and complete directions to the scrivener for writing the will; that she recalled all her relatives and her property, and sent for a certain lease to get the description of the land. Defendants do not deny that her mental condition the night before the making of the will was bad, but show it good at the time of executing the will, by the scrivener and others. From what has been set out without going further into the evidence, it will appear that there was a sharp conflict in the testimony as to the mental condition of the testatrix at the time of executing the alleged will. In other words, the record shows substantial evidence upon both sides of the question.

I. It is well-settled law that where there is substantial evidence as to mental incapacity of the maker of a will, and the question is submitted to the jury upon proper instructions, this court will not disturb the verdict. [Goodfellow v. Shannon, 197 Mo. 271; Sayre v. Trustees of Princeton Univ., 192 Mo: l. c. 120; Young v. Ridenbaugh, 67 Mo. 574; Schaff v. Peters, 111 Mo. App. l. c. 459: Fulbright v. Perry County, 145 Mo. l. c. 443.]

There was substantial evidence upon which to submit that question to the jury in this case, and the judgment should be affirmed, unless there was error otherwise in the course of the trial.

II. Complaint is made of instructions numbered 3 and 5, given in behalf of the contestants. These instructions have been held proper by this court in the recent case of Goodfellow v. Shannon, 197 Mo. 271. Instruction numbered 3 in this case is the same as number. 13 in the Goodfellow case, and number 5 in this case is identical with number 11 in the Goodfellow case. We considered and discussed these instructions fully in that ease, and upon the views therein expressed, we overrule the contention of appellants here.

This disposes of the chief questions raised by appellants. In our judgment there was ample evidence to submit the ease to the jury upon the question of mental incapacity, and. the same was submitted by proper instructions, and the verdict and judgment should not be disturbed.

We therefore affirm the judgment.

All concur.


text:
    SCANLAN v. GULICK, Appellant.
    Division One,
    November 21, 1906.
    1. EJECTMENT: Finding of Trial Court. An ejectment is an action at law, and a finding by tbe trial court sitting as a jury that defendant bad not made a deed of trust on tbe land of wbicb plaintiff bad notice prior to tbe time of tbe execution and record of tbe deed under wbicb plaintiff claims, will be approved on appeal, where there is substantial evidence to support that finding.

      2. -: Instruction: Outstanding Title: Bona Fides. A single instruction meant to cover the whole case should he refused if it leaves out any reference to the bona-fides of a deed of trust, which the evidence tends to show was made and recorded by defendant in order to give the land a fictitious trading value, and through which defendant seeks to establish an outstanding title.
    Appeal from Phelps Circuit Court. — Hon. L. B. Wood-side, Judge-.
    Affirmed.

      W. D. Jones for appellant.
    (1) Under the evidence introduced the judgment of the trial court should have been for the defendant because: (a) The evidence shows that the respondent,Scanlan, had notice of the unrecorded deed from Alexander Weems and wife to- the appellant, Gulick, the deed of trust having been recorded and called to his attention in the abstract prior to his accepting of the deed of trust in which he claimed title, (b) He also had actual notice from appellant that he had executed a deed to Weems conveying the land in question, which deed was not recorded, but that the deed of trust from Weems to Gulick which was on record was given back to Gulick as a part of the purchase price of the land and that he, Gulick, had sold said deed of trust to S. M. Pickier. Miers v. Blume, 80 Mo. 179; Major v. Buckley, 51 Mo. 227; Green v. Miers, 98 Mo. App. 438; Randolph v. Wheeler, 182 Mo-. 146; Myers v. Schuchmann, 182 Mo. 167. (2) The court should have given defendant’s declaration of law, because: (a) It correctly declared the law applicable under the evidence in this case, (b) Though the- case was tried before the court it was proper for the court to- give the declaration of law. Cunningham v. Snow, 32 Mo. 593. The submission of the case to the court sitting as a jury in no wise takes away the statutory right. Cunningham v. Snow, snpra. In no other way can it be ascertained on what theory of the law the court determined the case. Hessy v. Goodwin, 90 Mo. 386; Clyburn v. McLaughlin, 106 Mo. 524.

      J. B. Harrison for respondent.
    (1) The remarkable defense interposed by appellant, being one of outstanding title, is very questionable, under all the facts and circumstances in this case. Chouquette v. Baraba, 33 Mo. 249. An outstanding title must be a present, subsisting and operating one, and such as the owner could recover on if he were asserting it in an action. McDonald v. Schnieder, 27 Me. 405.; Glasgow v. Baker, 14 Mo. App. 201; Lalier v. McTosh, 117 Mo. 508. Defendant cannot defeat a recovery by showing a valid lien, outstanding in favor of-a third person, under a bona fide deed of trust, executed by defendant’s grantor. Hutcheson v. Shelly, 133 Mo. 100. But, where an affirmative relief is set up as a defense, the defendant assumes the burden of proof. (2) The evidence is clear and convincing that Scanlan was the owner of the land, and that Gulick was in possession, and had been for four years previous to the date of filing the suit, that Scanlan’s title and Gulick’s title were from a common source, and there is no issue in this case upon this question; hence, we take it that the instruction asked for by defendant was properly refused.
   GRAVES, J.

Action in ejectment by respondent against appellant to recover a certain tract of land in Phelps county, worth about $600 fi> $1,000'. Petition is in the usual form. Answer was first a general denial, and then in a second count a specific plea of an outstanding title in one Alexander Weems. Replication, a denial of all new matter in answer.

The title passed regularly from the General Gov ernment to N. A. Wilson and W. I. Letton. On March 3, 1899, Wilson and wife conveyed to appellant, and on February 4 Letton and wife conveyed to appellant, so that on March 3,1899, appellant had full title. September 11, 1901, appellant and wife executed a deed of trust to J. B. Harrison, trustee for J. W. Scanlan, this respondent, to secure the payment to respondent of a note of $143.74. February 9, 1903, this deed of trust was foreclosed and respondent became the purchaser of the land and received a trustee’s deed therefor and thereafter he brought this suit. It was admitted that appellant was in possession at the time suit was brought, and the evidence showed that he had been in possession since about March 3, 1899. Respondent after introducing the abstract of title, showing the title in appellant as stated above, introduced the deed of trust and trustee’s deed above mentioned and made proof of monthly rents and profits. The abstract of title was admitted in evidence by agreement in lieu of the instruments of conveyance. This abstract of title, besides showing the two- deeds to appellant as aforesaid, did show a deed of trust executed by Alexander Weems and Nancy Weems to John Long, trustee for F. W. Gulick, appellant, to secure the payment of a $1,600 note, which deed of trust bears date July 24, 1899, and was filed for record November 1, 1899. Respondent likewise proved that appellant had been in possession of the land since he received the two deeds from Wilson and Letton.

Appellant then introduced evidence- tending to show that prior to the execution of the deed of trust under which respondent purchased, he had made a warranty deed to Alexander Weems, and that he had taken the deed of trust for $1,600- above mentioned, for the purchase price, which deed of trust or a note secured thereby had been assigned to one S. M. Pickier. That he told respondent of these instruments at the. time he gave him his deed of trust. That Alexander Weems was deceased at the date of trial. All this was testified to by appellant, there being no other witness.

The cross-examination of appellant was rigid and directed along lines tending to show that the alleged unrecorded deed to Weems and the deed of trust given back by Weems were fraudulent and without consideration, and that the alleged transfer of the note was fraudulent and without consideration.

The testimony given by respondent denied any knowledge of the alleged unrecorded deed to Weems. It was further to the effect that at the time appellant gave him the deed of trust for $143.74, appellant said that he still owned the land and that the $1,600' deed of trust was placed there in order to give it a fictitious value to help sell the place.

The appellant asked the following declaration of law, which was by the court refused and exception saved:

“The court declares the law to be that notice is regarded in law as actual when the parties sought to be affected by it know of the particular fact in question or is conscious of having the means of knowing it although he may not employ the means in his possession for the purpose of getting furthér information. And in this case if it appears that there is a deed of trust recorded in the records of Phelps county, Missouri, conveying the real estate from one Alexander Weems and wife, to John Long, trustee for F. W. Gulick, and that said deed of trust was put upon the abstract which plaintiff procured, purporting to show his title in the real estate in question, then in that case there is sufficient notice to put the plaintiff upon his inquiry as to how the said Alexander Weems claimed title to the said real estate. And if it further appears from the evidence that the defendant had long prior to the execution of the deed of trust to plaintiff, conveyed said real estate to said Alexander Weems, then the defendant Gulick had not title thereto when he gave the deed of trust to the plaintiff herein under which plaintiff claims title, and it devolves upon the plaintiff to recover upon the strength of his own title and not upon the infirmities of the defendant’s title, and the issues will be found for the defendant. ”

The trial was before the court and thereupon the court entered judgment’ in favor of respondent for the possession of the land in question and adjudged the monthly rents and profits to- be $5 per month. After unsuccessful motion for new trial appeal was taken to this court.

I. It will be observed that by the evidence submitted to the trial court, the issue was squarely presented, as to whether or not there ever was a deed made by Gulick to Weems, and if so then the bona-fides of that deed and the deed of trust for $1,600'. The two witnesses were before the court and after weighing the evidence the court found for respondent. This is an action at law, and this court will defer to the finding of the trial court as to the facts of the case. [Smith v. Royse, 165 Mo. l. c. 658, and list of cases there cited.]

In this Smith case, which is very similar to the case at bar, Brace, P. J., said: “This is purely an action of law, in which we are not called upon to determine the weight of the evidence. The finding of the trial court is final upon that question.”-

But if we did not defer to the finding of the trial judge, one could hardly read the testimony of Gulick without concluding that if he made a deed to Weems, at all, it was evidently done for -the- purpose of taking a deed of trust back for a sum exceeding’ the value of the land, in order to give it a fictitious trading value, and that he was in fact the owner of the land. This is ■what he told respondent in explaining the deed of trust.

II. The instruction asked by appellant would perhaps be good law in most cases, where the facts would authorize, but. under the peculiar issues raised by the evidence in this case, the court was justified in refus-' ing it, for the reason that it left out of question the hona-fides of the two instruments of writing heretofore mentioned. A single instruction intended to present the law of the ease should cover the whole case, it being the only instruction asked, as in this instance. [Lesser v. Railroad, 85 Mo. App. 326; Boothe v. Loy, 83 Mo. App. 601; Borden v. Falk Co., 97 Mo. App. 566; Drumm-Flato Com. Co. v. Bank, 107 Mo. App. 426.]

This in no way conflicts with the general rule1, that if all the instructions taken together properly state the law of the case, it is sufficient. But in the case at bar only one instruction was asked, and it directed a judgment for appellant, without requiring the court to consider a material question presented by the evidence upon the part of respondent.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

All concur.


text:
    VANDERBERG, Appellant, v. KANSAS CITY, MISSOURI, GAS COMPANY.
    Division One,
    November 21, 1906.
    1. APPELLATE JURISDICTION: Amount in Dispute: Ex Delicto Actions. Jurisdiction of the appeal, where plaintiff’s whole case as presented below becomes a part of the record through a bill of exceptions which shows that a demurrer was sustained and the case taken from the jury at the close of plaintiff’s evidence, is not to be determined merely by the amount of damages asked for. The amount in dispute is not the mere paper or colorable amount asked for in the petition, but is to be determined from the disclosures of the entire record.
    2. -: -: Case Stated. Plaintiff, the lessee of a rooming house, fitted with gas plumbing and connected with defendant’s mains, which was engaged in manufacturing. and vending gas for light and fuel in Kansas City; and enjoyed a monopoly in such business under a franchise from the city, in her petition alleged that the gas was shut off, without excuse and maliciously, and that she was refused gas after she had offered to make a deposit of money therefor. She states her damages to be great inconvenience, and loss of profits because of inability to rent her rooms, and lays the amount at $5,000 actual and $5,000 punitive damages. At the close of her. evidence the court took the case from the jury by sustaining a demurrer, and she appeals. There was no evidence of ill-will, spite or intentional wrong, and the only claim for damages now asserted is for loss of profits, inconvenience and added labor, and the record shows that at most that could not exceed a few hundred dollars. Eeld, that the Supreme Court has no jurisdiction of the appeal on the ground that the amount in dispute is in excess of $4,500.
    Appeal from Jackson Circuit Court. — Mon. J. D. Sloven, Judge.
    Transferred to Kansas city court of appeals.

      ■Burnham é Brewster for appellant.

      Gage, Ladd & Small for respondent.
    This court has no jurisdiction. The amount in dispute is insufficient. The amount in dispute is not determined by the prayer of the petition, but by the record. State, etc., v. Gilmore, 106 Mo. 436; May v. Jarvis-Conklin Co., 138 Mo. 186; Wilson v. Russler, 162 Mo. 565; Anchor Milling Co. v. Walsh, 97 Mo. 287; Wolff v. Matthews, 98 Mo. 246; State ex rel. v. Gill, 107 Mo. 44; Rerchenbach v. United Masonic Assn., 112 Mo. 22; Kirchgraber v. Lloyd, 59 Mo. App. 59. First. Punitive damages could not be recovered. This was expressly so ruled in Miller v. Wilkesbarre Gas Co., 206 Pa. St. 254, a case “on all-fours” in this respect, where the gas company shut off one tenant’s gas because he refused to pay a delinquent bill of prior tenant. Second. No actual damages were shown, for failure to supply gas to that portion of the house occupied by plaintiff, her husband and family. Gas Co. v. Storage Co., Ill Mich. 401. Third. There was no legal evidence that anyone refused to rent plaintiff’s rooms "because of the absence of gas. She had rented them from May to February without gas, and her statement that certain persons said they would not rent them without gas after February 18th, was mere hearsay. Fourth. The undisputed testimony of plaintiff herself showed that the gas company put in a special meter in the house so that all tenants who wanted gas could have it, but that only one availed herself of the privilege, and there is no evidence that plaintiff informed the other applicants for rooms of this privilege, or that they knew of it. In fact, she must have led them to believe that they could not have gas, which was not the case. If the plaintiff has any cause of action, therefore, it is only for nominal damages, and the highest amount involved, on plaintiff’s own theory, is only $161, which is much below the jurisdiction of this court.
   LAMM, J.

On March 18, 1903, plaintiff sued defendant as a public service corporation engaged in manufacturing and vending gas for light and fuel in Kansas City, Missouri, and enjoying a monopoly in such business under a franchise granted it by said city. In a nut-shell, her complaint is that at a certain time she was tenant and lessee (from month to month) of No. 1314 West 10th Street — a rooming house. That said house was fitted with gas plumbing and connected with defendant’s mains. That on her application on February 10, 1903, gas was turned on by defendant, and thereafter, on February 16, 1903, without excuse and maliciously, her gas was cut off. That on February 18th she again applied to defendant for gas, offering to make any deposit required by defendant and comply with all its reasonable rules and regulations, and was refused gas.

Plaintiff sets forth the elements of her damages thus: ‘ ‘ She has been put to great inconvenience, ’ ’ she says, “and damage in the use of her said house as á dwelling; that she can not rent the rooms in her said house for as much per week as she could if she could supply gas therein; and that she has been greatly injured and damaged; that she will continue to be inconvenienced and damaged by reason of defendant’s refusal to supply gas to said house for her use; and that of her roomers therein.” She lays her damages at $5,000 actual and $5,000 punitive damages.

The answer tendered the general issue.

At the close of plaintiff’s evidence, the trial court took the case from the jury by sustaining a demurrer, and plaintiff comes here.

At the threshold we are confronted with a question of jurisdiction. By the constitutional amendment of 1884, sec. 3 (see R. S. 1899; p. 93) the General Assembly was given power to- “increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals.” In 1901 (Laws 1901, p-. 107) the General Assembly acted under that power and provided that the courts of appeals should have jurisdiction of appeals and writs of error in all cases where the “amount in dispute,” exclusive of costs, should not exceed the sum of $4,500'. Prior to that time the pecuniary limit had been regulated by the Constitution (see sec. 12, art. 6, Constitution of Missouri), and “the amount in dispute” was placed at $2,500; exclusive of costs.

The phrase, ‘ ‘ amount in dispute, ’ ’ has been before this court and- the courts of appeals more than once for interpretation and its intent and application may be said to have been guardedly arrived at- (or approached) by a gradual process of judicial exclusion and inclusion, as the cases presented for decision seemed to require.

For example, if a plaintiff is cast on demurrer to his petition, it would seem that the amount stated in the petition controls the jurisdiction on appeal; but where, as in this case, the whole case , of plaintiff is-presented below and becomes a part of the record through a bill of exceptions, this court has hesitated to give to a plaintiff the whimsical and unregulated power to control its jurisdiction by a mere stroke of his pen in his petition, and we have reserved to ourselves the right in emergency to control the question of jurisdiction by looking into the whole record far enough to do so — by seeing to it that jurisdiction is not foisted upon us by a mere paper or colorable amount in dispute, but is regulated by the real amount in dispute oh appeal as disclosed by the entire record.

In Anchor Milling Co. v. Walsh, infra, plaintiff’s cause of action was based on fraud and mistake and this court, speaking through 'Barclay, J., said: “We think it was intended that the real, rather than the formal, demand of plaintiff should be considered in determining our jurisdiction, when the record discloses both.”

Manifestly the nicest discrimination should be exercised in determining jurisdiction, by looking into the whole record, in actions ex delicto, and the record should control the petition, on the amount in dispute, only in such a pronounced case as might arise where the damage sued for is susceptible of being readily arrived at with reasonable certainty from accounts, documents or unquestionable oral evidence (as satisfactory as either) and where the damagesmay be ascertained by well-known rules regulating the measure of damages. And this should not be done where a realandnot amere colorable question of punitive damages is lodged in the case, nor where other elements of damages exist that are not readily susceptible of reasonably certain calculation by well-known and easily-applied rules. Take an illustration — a rather inflamed one, possibly, but which will serve our purpose. Suppose A. sued B. for damages based on B’s wrongful act in depriving him of the services of a coach horse or a milch cow for a few days or weeks, and laid his damages at, say, $10,-000. Suppose the uncontradicted evidence showed the services of the cow or horse were of the value of $10. The cause comes to this court by appeal. Must we entertain jurisdiction of that cause merely because of the allegation in plaintiff’s petition? We think not. Such construction would mischievously circumvent the very purpose of the statute.

Frequently the amount in dispute is materially affected by eliminating items and elements at the trial, and the record shows this. Would it not be an act sounding to folly for us to say that, for the purposes of jurisdiction on appeal, we must continue to consider such eliminated matters ? The reasoning of the following cases, we think, sustains the foregoing view of the law: State ex rel. v. Rombauer, 130 Mo. 288; Clothing Co. v. Watson, 168 Mo. 133; Kirchgraber v. Lloyd, 59 Mo. App. 59; State ex rel. King v. Gill, 107 Mo. 44; Wolff v. Matthews, 98 Mo. 246; State ex rel. v. Lewis, 96 Mo. 146; May v. Trust Co., 138 Mo. 447; Kerr v. Simmons, 82 Mo. l. c. 273, et seq.; Wilson v. Russler, 162 Mo. 565 (decided in Banc); Anchor Milling Co. v. Walsh, 97 Mo. 287; State to use v. Gilmore, 106 Mo. 436. See the reasoning in Harris v. Rosenberger, 145 Fed. 449', on the kindred matter of a constitutional question, wherein it is held that the claim must be real and substantial, not merely colorable or without reasonable foundation. So, in Phoenix Powder Mfg. Co. v. Railroad, 196' Mo. 663, it was held that we would look into the whole record far enough to see if a real and not a mere colorable Federal question was involved.

Hennessy v. Bavarian Brewing Co., 145 Mo. 104, was a suit for damages for the negligent death of plaintiff’s minor son. That was a case in which defendant’s demurrer was sustained at the close of plaintiff’s case and it was held that the elements constituting the damage were uncertain in that “we cannot judicially determine how much any given minor would earn between the ages, of 14 and 21.” The reasoning of the case is not out of line with the decisions heretofore quoted. But language is held therein which seems not to ques-. tion .our inherent right to look into the whole record on a question of jurisdiction — a right steadily insisted upon in a line of decisions — hut douhts the wisdom of our so doing. It would seem that the learned writer, in apparently laying down the rule in actions ex delicto that the amount in dispute is the amount named in the petition until the claim has been merged into a judgment, leaned on Vineyard v. Lynch, 86 Mo. 684. That case, however, was merely an exposition of our statute, a very ancient one, on costs (sec. 995, R. S. 1879, now sec. 1552, R. S. 1899), and reads as follows: “In actions ex delicto, costs, how awarded. In all actions not founded on contract, the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover Ms costs.” That statute was evidently enacted to furnish a plain statutory rule regulating questions of costs where plaintiff sued in a circuit court in a case sounding in tort and recovered an amount, less than that within the exclusive or concurrent jurisdiction of the circuit court, and wMch was within the exclusive jurisdiction of a justice of the peace. It was held in that case' that the circuit court had jurisdiction because of the statutory mandate, and the case would not seem to he determinative of the judicial question here, which was originally, as said, a constitutional matter and to he determined hy the interpretation of the phrase, “amount in dispute,” and is now a statutory matter to he determined hy the same interpretation.

Looking into this record, what is the real “amount in dispute?” We find not a particle of evidence showing ill-will, spite or intentional wrong in any one of the protean shapes which malice takes on. In fact, appellant’s learned counsel merely contend that their client “was entitled to recover for her loss of profits, as well as for her inconvemence and added labor.” Hence, there is no punitive damages in the “amount in dispute.” That matter was set at rest helow and is not in this record on appeal.

If there was any evidence below directed to the question of inconvenience, we have not been able to put our finger on it; so that, if mere “inconvenience” could be an element of damages,, a point of course- not decided by us, it is not included in the real “amount in dispute. ’ ’

The same disposition may be made of the contention relating to “added labor.” No such evidence and no- such issue are preserved in the record.

‘ ‘ The amount in dispute, ’ ’ then, narrows itself to a question ,of loss of profits in the rooming house arising from the alleged act of defendant. The amount involved, as shown by the evidence;, is small — at most, but a hundred or, say, two hundred dollars and, if any such profits exist, they should be readily ascertainable with reasonable certainty. The- defendant contends there was no- competent proof of any loss of profits. It contends that plaintiff’s husband applied for gas and it is answerable alone- to him, if to- any one. It contends that under its franchise (on the facts disclosed by plaintiff’s case) it had the right to deny plaintiff gas and makes other contentions under this record, ail o-f which should be passed on by the court having jurisdiction.

In our opinion, we have no jurisdiction of this appeal. Hence, the cause is certified to- the Kansas City Court of Appeals for its determination.

All concur.