author: GRAVES, P. J. WOODSON, J.

text:
    MAUDE PARRISH et al. v. JOHN TREADWAY et al., Appellants.
    Division One,
    February 29, 1916.
    1. MINOR: Conveyance of Real Estate. The deed of a minor-is not void, but only voidable; and to be avoided must be dis-affirmed by him after reaching his majority.

      2. -: -: Limitations. The deed of a minor conveying his interest in real estate, unless disaffirmed within ten years after he reaches his minority, is valid, and cannot be avoided by him.
    3. -: -: -: Remainderman. The act of disaffirmance of a conveyance of real estate by a minor goes to the instrument itself, and has no particular reference- to the estate conveyed or attempted to be conveyed. If the deed conveyed the contingent reversion of a remainderman while he was yet a minor and while the life tenant was yet living, the remainderman’s deed cannot be disaffirmed by him after the expiration of ten years after he reached his majority, it matters not how long the life tenant lived after the deed was executed.
    4. -: -: --: Disability of Coverture. And the deed of a minor who was a married woman at the time it was made, must be disaffirmed within ten years after she first -became discovert,'having then reached her majority, although'she may have soon thereafter married a second time. The disability of a second coverture cannot avail her. And where the only act of disaffirmance is by bringing suit, the petition must be filed within ten years after she first became discovert.
    5. PARTITION: Attorney’s Fee. No allowance should be made counsel as general costs for services in contested matters between the parties in. a partition suit. But an allowance to plaintiff’s attorney should be taxed as costs for such work as counsel would do in an ordinary non-contested partition, although, after, new plaintiffs were added, there were brought into the case contested matters between them and defendants because of a denial of the validity of the deeds previously made by some of them.
    Appeal from Pike Circuit Court. — Hon. B. H. Dyer, Judge.
    Eeversed and remanded (with directions).

      • F. J. Duvall and Pearson '& Pearson for appellants.
    (1) Deeds of minors are not void bnt only voidable, at their election upon attaining their majority, respectively. Their respective deeds were operative, sufficient to pass, and did pass, to their respective grantees, and those claiming under them, whatever right, seizin, title and estate, said grantors respectively, though minors, may have had in the property described in the petition at the date thereof. Harris v. Ross, 86 Mo. 95; Huth v. Marine Ry. & Dock Co., 56 Mo. 209; Singer Mfg. Co. v. Lamb, 81 Mo. 225; Shafer v. Diete, 191 Mo. 389; Goodman v. Simmons, 113 Mo. 127. (2) Unless they disaffirmed their deeds, at some-period within ten years from the date they, respectively, reached their majority, they were forever thereafter barred from any rights and powers to dis-affirm. Harris v. Ross, 86 Mo. 95; Linville v. Greer, 165 Mo. 398; Huth v. Carondelet, 56 Mo. 209. (3) The right to disaffirm a contract or deed, made by an infant is a personal privilege, and must be exercised' by him after he attains his majority, and within ten-years from that date. It is not dependent in this case,, upon the death of Phoebe E. Henderson, or her occupancy of the land described in the deed. But it depends solely on the will and pleasure of the minor exercised within ten years from the date of his majority. Huth v. Marine Ry. & D-ock Co., 56 Mo. 209;, Jackson v. Carpenter, 11 John. 541; Harris v. Ross, 86 Mo. 96; Linville v. Greer, 165 Mo. 398.

      B. L. Sutton, D. A. Ball and Hostetter S Haley for respondents.
    "While the Statute of Limitations relative to real actions may be a guide as to the time within which a late minor may disaffirm his deed according to the holding of some of the courts, yet in the case at bar, that principle, if conceded to be sound, would not aid the appellants. Here the children of Phoebe E. Henderson during her lifetime made deeds. They were not her bodily heirs: The most that could be claimed for them was that they were her prospective bodily heirs. They had no vested interest in the land or in the trust fund at the time of the execution of their deeds. They were not entitled to any interest in the property until the death of their mother. Consequently the Statute of Limitations would not commence to run against them until the date of their mother’s death. The Statute of Limitations does not run against any one who has no right of possession; and where there is an outstanding estate, all the authorities agree that during the continuance of such particular estate, the remainderman cannot maintain an action for possession. Littleton v. Patterson, 32 Mo. 357; Carr v. Dings, 54 Mo. 95; Miller v. Bledsoe, 61 Mr. 96; Dyer v. Brannock, 66 Mo. 422; Brown v. Moore, 74 Mo. 633; Lin-ville v. Greer, 165 Mo. 380; Givens v. Ott, 222 Mo. 422. Mere silence, however long, or omission to act, is not an affirmance. Youse v. Norcum, 12 Mo. 549; Huth v. Carondelet, 56 Mo. 210; Linville v. Greer, 165 Mo. 380, 398; Stull v. Harris, 2 L. R. A. 742.
   GRAVES, P. J.

This is a partition suit from Pike County. In 1870 Washington Treadway and wife, Elizabeth, deeded a certain tract of land in Pike County to John Treadway “for the use and benefit of Phoebe E. Henderson and the heirs of her body” as alleged in the petition. By his last will he devised to John Treadway another small tract for the same purpose. These two tracts constitute the subject of litigation here. Neither this deed nor will is in evidence. The trial court found in accordance with the petition thus:

“The court being fully advised in the premises doth find the defendant John Treadway held in trust for Phoebe E. Henderson, and her bodily heirs, the following described real estate situated in Pike county, Missouri, to-wit:”

This is not a disputed matter and details need not be given. Suffice it to say that where a child of Phoebe E. Henderson died before she did, and such child left heirs, counsel seem to have conceded that a prior deed from such child conveyed no interest as against the grandchildren. So much for the construction of these trust instruments.

Phoebe E. Henderson died March 20, 1912, leaving as her bodily heirs certain children and grandchildren. She had nine children, but only seven survived her. The two who died before she did left children. The seven children surviving the mother made deeds to their interest in the lands prior to the mother’s death, except the deed of Hurley N. Henderson did not cover the nine-acre tract covered in the will mentioned. The plaintiff, Maude Parrish, daughter of a deceased son, had never conveyed, nor had her father. A daughter, Lizzie Henderson, who married ¡first Rice and then Nelson, made a deed, but died before the mother. Appellants claim nothing under this deed. Three of the children who made deeds made them just prior to reaching their respective majorities, and the trial court found these deeds to be void. These three interests and a dispute over the attorney’s fee allowed counsel for plaintiff are the only questions here.

The plaintiffs are all the heirs of the body of Phoebe E. Henderson, and the defendants are the parties purchasing from the children and John Tread-' way, the trustee in the instruments of trust. For the present this sufficiently states the case.

I. The finding of the court which is first challenged by counsel for appellant is:

“The court further finds Olin G. Henderson and Thomas S. Henderson and Anna N. Megowan, formerly Anna N. Wells, wére minors at the the answers, and the court further finds that nothing passed to the grantees in any of said deeds.”

The following unchallenged statement appears in appellant’s brief:

“The record shows, that this second amended petition, in which all of the plaintiffs,, except Maude Parrish, were for the first time made plaintiffs, was filed July 15, 1912. That Thomas S. Henderson was born July 12, 1876; that he and his wife executed, the deed in question, August 14, 1896; that he attained, his majority, July 12, 1897, which was fifteen years before the institution of this suit. That Anna N. Megowan, nee Wells, was born February 10,1879; that she and her husband executed the deed in question August 9, 1895; that she attained her majority February 10, 1897, which was fifteen years and four months before the institution of this suit. That Olin G. Henderson was born May 9, 1881; that he and his wife executed the deed in question October 4, 1901; that he reached his majority May 9, 1902; which was ten years and two' months before the institution of this .suit.”

- It appears that the consideration paid in each instance was about $200, and respondents-claim that the conveyance not' only covered their interest in the land; but their interest in a $2000 trust fund in addition! The matter of consideration is not material, because not an issue under the pleadings. Hpon. this branch of the case' there are but two questions to be answered: (1) is the deed of a minor void or merely voidable, and (2) if voidable, within what time must he disaffirm? There is no act of disaffirmance shown except the petilion, so that .dates are easily calculated. Seemingly fhe case below was tried on the theory that these deeds were void, or on the theory that they did not have to disaffirm until after the death of the mother in 1912. When made, these deeds conveyed the contingent remainder of these parties in the lands involved. The grantees took the title subject to the contingency of •the death of the grantor prior to the falling in of the life estate, or in other words prior to the death of the mother. The parties so construed these deeds in the course of the trial. In the record we find:

“Mr. Gene Pearson: I now offer in evidence ‘De-. fiendants ’ Exhibit Three, ’ being a warranty deed from Lizzie Rice to Benjamin G. Patton, dated the 29th day of August, 1895.
“Mr.. Hostetter: We object to that being read in evidence, because Lizzie Rice, according to the testimony thus far adduced, died in 1903, and being a daughter of Phoebe Henderson and having died before Phoebe Henderson, nothing passed under the deed. Nothing could pass under the deed offered in evidence, .and that’s admitted by the counsel for the defendants. T think you practically state you didn’t make any claims, is that right?
“Mr. Gene Pearson: Well, that’s right.”

The heirs of Lizzie Rice, nee Lizzie Henderson, recovered in the case and appellants do not challenge their recovery. We give this construction of the two -trust instruments as given by counsel, because the two Instruments are not before us for construction.

From an early day it has been held that a deed made by a minor is not void, but merely voidable. In the case of Singer Manufacturing Co. v. Lamb, 81 Mo. l. c. 225, this court through Martin, C., said:

“The deed of a minor is not void, but only voidable, after he reaches his majority. [Peterson v. Laik, 24 Mo. 541; Huth v. Marine Railway & Dock Co., 56 Mo. 202.] The right to disaffirm may he exercised by bis beirs and representatives witbin tbe time permitted to him for doing tbe act. [Land & Loan Co. v. Bonner, 75 Ill. 315.] It requires no affirmative act to continue its validity, but only an absence of any dis-affirming acts. It remains valid in all respects, like tbe deed of an adult, until it has been disaffirmed by tbe maker, after reacbig bis majority.”

Lamm, J., in Shaffer v. Detie, 191 Mo. l. c. 389, said:

“Now it may be conceded to appellant that tbe .deed of a minor is not void, but only voidable; for such is tbe law. Tbe policy of tbe law is to make the- conveyance of a minor effective or non-effective, as a minor grantor may elect to affirm or disaffirm' when be attains tbe mature judgment of full age; and all persons, whether innocent purchasers or not,- must deal with tbe minor’s title to real estate subject to this privilege, since bis title passes lame and bait with an infirmity, of which tbe world at large at its peril must take notice. But this is a personal privilege to be ■exercised by him, or in case of bis death, or being non compos, by bis beirs or personal representatives; so that, tbe mantle of privilege to object to such deed does not fall upon tbe shoulders of strangers to the transaction, and least of all upon one bolding and asserting a hostile title, as here.”

We shall not go further with authorities. Tbe deed of a minor remains good and conveys title until such deed is disaffirmed. Tbe minor is not required to act until be reaches bis majority, but be must act to thwart tbe deed. Within what time he must act we fake in tbe next paragraph. •

II. These deeds being voidable merely the next question is, within what time must minors disaffirm their deeds? And we might add, from what date the time to disaffirm begins to run? Answering the last question first, we are forced to say that the minor is not required to act until he reaches his majority, and the time could not begin to run prior to that time.

The time allowed for disaffirmance is not statutory, but court-made law. This court has considered the question several times, and the rule established seems to be within ten years after the infant reaches his majority. The time fixed for disaffirmance by the court has been made analog-ous to the Statute of Limitations for real actions.

In the very early case of Peterson v. Laik, 24 Mo., l. c. 544, Scott, J., made use of this language:

. : “That a deed executed by one who has attained his majority,, conveying lands, which he had alienated during his infancy, is a disaffirmance of the deed of alienation made during his infancy, is the well-settled doctrine of this court. The acquiescence of the infant, after his reaching his full age, for a period short of that which would secure a title by the Statutes of Limitations, does not destroy or take away the right which the law for wise purposes has conferred on infants of disaffirming their deeds. Whether the infant, may not after attaining full age, within a shorter time, by his declarations, acts or conduct, restrain himself from a disaffirmance of his acts done during-infancy, is a question not presented by any thing contained in this record.”

The foregoing from Scott, J., it might be said,, hardly formulates the rule, but it has been made the basis for the rule, for in Huth v. Railway & Dock Co., 56 Mo. l. c. 209, this court through Napton, J., said:

“There is no doubt, that a conveyance by an infant passes the title, subject to a right on the part of the infant when reaching full age, to disaffirm this contract and convey to some third person. What length of time will be allowed the infant after attaining majority, to disaffirm, is a question which has never been passed upon by this court so far as my examination has extended. . There are loose dicta in text books, and perhaps a decision or more of respectable courts, that this disaffirmance must be made in a reasonable time, and that mere acquiescence beyond this reasonable period is equal to an affirmance. That is a very indefinite expression, 'and amounts to very little more than that the acquiescence of the adult, laboring under no disabilities, must be attended with such acts as to amount to a virtual recognition of the validity of his. deed..
“I incline to think that Judge,,Scott’s observation in Peterson v. Laik laid down the only practicable rule on the subject. That was, that, in general, the Statute of Limitations would be the guide — but that in cases where an infant does something totally inconsistent with an intention to disaffirm, as in receiving rent on a lease made in his infancy, after he becomes of age, an affirmance may be inferred.
■ “I do not find any authority for the doctrine, that mere silence or inaction, unless continued so long as to effect a bar under the Statute of Limitations, will prevent the infant from disaffirming.”

This rule as to the time in which the infant must act, that is, within ten years after attaining majority, has been recognized later by this court. [Harris v. Ross, 86 Mo. 89; Linville v. Greer, 165 Mo. 380.]

The act of disaffirmance goes to and effects the deed. It does not necessarily mean a suit, although a suit to recover the land would be a disaffirmance of the deed. The time fixed for the disaffirmance of a deed by an infant is not a Statute of Limitations, but is a working rule of law established by the courts, and in reasoning out what the rule should be as' to the time of disaffirmance, the courts have made it analogous to the Statute of Limitations for real actions. The date of the beginning is the advent of majority, and the time expires ten years after the advent of majority. The act of disaffirmance goes to the instrument itself, and has no particular reference to the estate conveyed or attempted to be conveyed. F'or this reason the date of the mother’s death in 1912 cannot be taken as the beginning- of the ten years in which disaffirmance of the deeds might be allowed under the law. Before her death they had a contingent remainder which they could convey, and this was a substantial right and interest. If they desired to avoid the conveyance of that interest or right, they should have done so by ;some act of disaffirmance within ten years from the advent of majority. This they did not do. The last positive expression of this court that we find is that of Black, P. J., in Lacy v. Pixler, 120 Mo. l. c. 388:

‘ ‘ There is a line of cases which hold that a minor must affirm his deed within a reasonable time after he attains majority. On the other hand many courts hold that he may exercise his right to disaffirm the deed at any time within the period of the Statute of Limitations, after majority, there being no ratification.”

The italics are ours. That learned jurist then adds that he is saved further investigation by the holding of this court in Huth v. Carondelet Marine Ry. & Dock Co., 56 Mo. 202-209, which announces the ten-year rule.

The trial court erred in holding that the deeds of Thomas S. Henderson and Olin Gr. Henderson, passed no title.

The deed of Anna N. Megowan we take later, because of another question being involved therein.

III. Annie Henderson, now Annie Megowan, was married twice. She was horn February 10, 1879. She was married to Alburtus Wells on the 19th day of March, 1895, and was therefore just passed sixteen years of age at her marriage. She made the deed involved in this case on August 9, 1895, and was therefore just sixteen years and six months old at the making of the deed. She lived with the first husband, Wells, for seven years, and until' his death. This would make her a femme sole in March, 1902, according to her testimony. The question was asked her: “Q. How long after your marriage did Mr. Wells live? A. I lived with him seven years.” We quote her language because counsel for respondent claim that she did not become discovert until less than ten years before the petition was filed in this case. They say she was under double disability when the deed was made, i. e. both infancy and coverture. But under her own evidence she had recovered from both long before, the filing of the second amended petition in this case, which is the first time she did any thing to disaffirm her deed. This second amended petition was filed July 15', 1912, and she became discovert March 19, 1902. Ten years and nearly four months expired after she became dis-covert before this suit was brought. When the time began to run, as it would at the latest in March, 1912, when she became discovert, it would continue to run even though she married again. This on the theory that this rule as to time for disaffirmance is analogous to statutes of limitation, and such is the view of this court.

The facts in the case as above indicated makes it unnecessary for us to discuss the question as to whether or not under the Married Woman’s Act as it stood when this deed was made, coverture would have been a good excuse for not disaffirming the deed. We leave that mooted question to a case where it becomes vital. It therefore follows that the trial court was also in error when it held that Mrs. Megowan’s deed conveyed no title.

IV. This leaves but one further question. Appellants claim that the allowance of $290.75 as attorney’s fee to plaintiffs’ counsel, to be fixed as costs, is wrong. They claim that the whole case was contested issues, and therefore no part of plaintiffs’ counsel fees should be taxed as costs.

The suit was first brought by Maude Parrish, and all other parties were made defendants. Later, July 15, 1912, this second petition was filed, and the parties named as they now appear. This petition does state that none of the defendants have any interest in the property, and ask the court to so adjudicate. The answer set up the title of the defendants and asked for partition. The reply averred that the deeds made by the heirs conveyed nothing. The trial took the ordinary' course of partition suits where there are contested issues, as well as non-contested issues, between the parties. The court heard evidence on this attorney’s fee. It made the following finding thereon, which is justified by the evidence:

“The court finds in this case that prior to the institution of this suit, Mr. Robert L. Sutton wasi employed by plaintiff, Maude Parrish, as her attorney, to institute this suit under an agreement that he should have a reasonable attorney’s fee for his services in this case, which fee should be fixed as to amount by the court and charged as general cost of the case. That Mr. Sutton is a resident of Troy, Lincoln county, Missouri, and a member of the Lincoln county bar, and that he had associated with him Mr. Hostetter, before the suit in partition was filed; that after the suit was filed Mr. Ball became associated with Mr. Sutton and Mr. Hostetter as attorneys for the plaintiffs in this case throughout the proceedings and up to the present time. The court finds that $290.75 is a reasonable fee for Mr. Sutton and his associates, Mr. Hostetter and Mr. Ball, for their services rendered in the matter of the partition and sale of the real estate in this case, that is, for the partition suit itself. The court awards them nothing for services rendered upon any issue that was contested as between any of the plaintiffs and the defendants, Lowell and Kenneth Patton and O. H. and M. W. Treadway.”

We concede it to be the law that no allowance should be made counsel for their services in contested matters between the parties in partition. The allowance which the statute contemplates may be taxed as costs is for such work as counsel would do in an ordinary non-contested partition suit. If the contest grows out of the construction of the deed or will of the ancestor, and not out of things done by the parties, the services in such a contest might be taxed as costs. In this case the evidence upon the allowance was confined to such class of service, and the court so finds as above indicated. After the new parties plaintiff were added there was a pleaded “legal conclusion” to the effect that defendants had no interest, but the whole trial shows that Maude Parrish, the original plaintiff, had no contest with any other party to the suit. We could, if necessary, eliminate from consideration all other plaintiffs, and allow this fee stand in favor of Maude Parrish. As to her there was a straight partition suit. The land sold for nearly $6,000’ and the evidence is that five per cent of the sale value is' a reasonable attorney’s fee for doing the' work required in ordinary partition suits, leaving out all services on contested matters. As to this matter the judgment nisi should be affirmed.

The judgment for the other reasons will he reversed and remanded, with directions to the trial court to enter up a new judgment in accordance with the views herein expressed. The data are all before the court, and there is no need for a retrial. Let the judgment be reversed and the cause remanded with the directions aforesaid.

It is so ordered.

All concur; Woodson, J., in separate opinion.

WOODSON, J.

(concurring) — I understand the opinion of Brother Graves to hold that ten years is the limit of the period in which a minor may disaffirm his or her deed, regardless of the period in which the estate conveyed thereby is barred by the Statutes of Limitations, whether that'be ten, twenty-four or thirty years; and with' that understanding I concur therein.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    In re Estate of MATHILDA A. LARGUE; MARTHA N. MARTIN et al., Appellants, v. W. B. THOMPSON et al.
    Division One,
    February 29, 1916.
    1. SPECIFIC LEGACIES: Bank Stock: Use of Word My. "When a specific number of shares of stock in a named bank is by the will given to a named legatee, whether the word “stock” is or is not preceded by "the word “my” or a similar expression, and the will upon its face fairly discloses an intention on the part of the testator to make a specific bequest, the legacy is specific, and not general.
    2. -: -: Manifestation of Intention: Gift to Trustee: Ademption. And the testatrix’s intention to make specific legacies is strengthened by the fact (1) that at the time she made her will and gave a certain number of shares of the stock of a named bank to each of a large number of legatees, she owned the aggregate number of shares in said bank, and (2) by the fact that she owned and was in possession of the same shares of stock at the time of her death, and (3) is made manifest by the fact that by one item of the will she gave 46 shares of stock in said bank to a named trustee, to be kept for the use of a named legatee during her life, and at her death to go in equal parts to five other named persons, and (4) by the fact that there is no intimation in the will that testatrix intended to adeem any portion of said stock, or to require her' executors to go into the market and buy stock of any kind.
    3. -: -: Identification. If the shares of stock are for the same amount in the same corporation, and all are alike and all are owned by testatrix, they are as fully separated and identified by being bequeathed in different amounts to each of a large number of legatees, as they would be were the aggregate number given to one person, or were they given in common by one clause to all the legatees.
    4. -: Dividends. All dividends on corporate stock specifically bequeathed belong to the specific legatee, and not to the residuary legatee.
    Appeal from. St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Reversed and remanded (with directions).

      J. Lionberger Davis for appellants.
    (1) The intent of the testatrix must govern if it clearly appears from the language of the will. Sec. 583, R. S. 1909; Finley v. King, 3 Pet. 346; Sanitarium v. McCune, 112 Mo. App. 337. (2) The law was then and is now that the bequests of shares of stock which were owned by the testatrix are specific legacies. . Waters v. Hatch, 181 Mo. 262; Sanitarium v. McCune, 112 Mo. App. 332; White v. Winchester, 6 Pick. (Mass.) 48; Drake v. True, 72 N. H. 322.; Lewis v. Sedgwick, 223 111. 213; Trust Co. v. Powell, 29 Ind. App. 494. (3) All dividends declared on stock specifically bequeathed, i. e., on specific legacies, belong to the specific legatees, and not to the residuary legatee. This proposition of law was conceded, hence no authorities are cited.

      Schnurmacher & Bassimr for respondent.
    (1) Since specific legacies interfere with a just and. uniform settlement of an estate as one whole, courts lean against pronouncing legacies specific, except in the clearest case; and in case of doubt, will construe a legacy as general rather than as specific. Schouler on Wills, p. 522; Dryden v. Owings, 49 Md. 356; Morton v. Murrell, 68 Ga. 141;. Giddings v. Seward, 16 N. Y. 365; Balliet’s Appeal, 14 Pa. St. 461; Oogdell v. Widow, 3 Desaus (S. C.), 373; Smith v. Lampton, 8> Dana (Ky.), 601 (2) The legacies to petitioners called for no particular shares or particular certificates of stock; each legacy could have been satisfied by the delivery of any shares or certificates of the requisite number; they were in no wise identified or distinguished from the other shares of the same ' stock and were therefore general, and not specific, legacies. Woerner on Am. Law of Administration, sec. 444; Roper on Legacies, 157; Tifft v. Porter, 8 N. Y.- 516; Sponsler’s Appeal, 107 Pa. 9'5; In re Snyder, 217 Pa. St. 71; Johnson v. Goss, 128 Mass. 433; Re Eckfeldt’s Est., 7 Wkly. Notes of Cases (P'a.) 19; Osborne v. McAlpine, 4 Redf. (N. Y. Surr.) 1; Davis v. Cain, 1 Ired. Eq. 304; Sibley v. Perry, 7 Yes. 524; Robinson v. Addison, 2 Beav. 515'. (3) The mere fact that a testator owns, in the aggregate, exactly the number of shares of stock disposed of by his will, does not, of itself, make the legacies specific. Woerner on Am. Law of Administration, sec. 444; Tifft v. Porter, 8 N. Y. 516'; Evans v. Hunter, 86 la. 413; Gilmer v. Gilmer, 42 Ala. 9; Dryden v. Owings, 49 Md. 356'; Sh'ethar v. Sherman, 65 How. Pr. 91; Ives v. Camby, 48 Fed. 718; Townsend v. Martin, 7 Hare, 471; Davis v. Cain, 1 Ired. Eq. (N. C.) 304; Re Tyler, 65 L. T. N. S. 367. (4) Dividends on specific legacies of stock follow the stock; dividends on general legacies of stock, go to the residue. Tifft v. Porter, 8 N. Y. 516; Dtryden v. Owings, 49 Md. 356; Re Eckfeldt’s Estate, 7 Wkly. Notes of Oases (Pa.) 19‘.
   RAILEY, C.

On January 11, 1912, appellants, Martha Norris Martin, Elizabeth Norris Nelson, Jennie Norris Angloch, Mary M. Norris, Mary M. May and Albert W. Wallace, filed in the probate court of the city of St. Louis their petition, against respondents, as executors of the estate of Mathilda A. Largue, deceased, reciting therein that they were the respective owners of the shares of stock mentioned in paragraphs three, four and seven of the will of Mrs. Largue, hereafter set out in full (318 shares), and alleging that since her death on October 12, 1909, all dividends declared by the National Bank of Commerce in St. Louis, Missouri, on said 318 shares of stock, have been paid to respondents as executors aforesaid, and that no part of same has been distributed to appellants; that said dividends amount to $27 on each and every share of said stock.

It is further alleged that said executors have on hand sufficient sums to pay all, debts, legacies and expenses of administration, and the aggregate amount of dividends herein prayed for; that appellants have paid their collateral inheritance taxes and are entitled to the dividends aforesaid.

The petition asked the court to make an order on said executors, requiring them to pay over to appellants the dividends aforesaid.

Upon a hearing in the probate court, the latter found against appellants, and held that the bequests of the 318 shares of stock aforesaid were general and not specific bequests. Appellants appealed to the circuit court aforesaid, where the cause was tried anew. The will of Mathilda A. Largue was read in evidence, and is in words and figures following, to-wit:

“Know All Men by These Presents, That I, Mathilda A. Largue, of the city of Saint Louis, Missouri, being of sound and disposing mind, do hereby make, declare and publish this to be my last will and testament, hereby revoking all former wills.
“First. I direct my executors to pay all just debts against my estate.
“Second. I give and bequeath to my brother, William R. Anderson, of Denver, Colorado, 100 shares of stock of the National Bank of Commerce in Saint Louis.
“Third. I give and bequeath to my sister, Mary M. May, of Beaver Falls, Pa., 137 shares of stock of the National Bank of Commerce in Saint Louis.
“Fourth. I give add bequeath 136 shares of stock of the National Bank of Commerce in Saint Louis to Martha Norris Martin, Elizabeth Norris Nelson, Mary M. Norris, and Jennie Morris Angloch, daughters of my late sister, Katherine Norris, share and share alike.
“Fifth. I give and bequeath to William A. Brandenburger, trustee, 46 shares of stock of the National Bank of Commerce in' Saint Louis, in ttust, however, for the following uses and purposes: The said trustee or his successor in this trust shall keep said shares of stock and collect such dividends as may be paid thereon and pay the same as they are collected to Melinda Wallace during the term of her natural life, and at the death of Melinda Wallace I give and bequeath said 46 shares of stock to Linnie Brandenburger, Jessie Verdier, Edith Taylor, Blanch Taylor and Grace Mort-land, share and share alike.
“Sixth. I give and bequeath 46 shares of stock of the National Bank of Commerce in Saint Louis to William Ramsey, Harry Ramsey, Sadie Ferree, Hallie Ramsey, Lynn Ramsey and George Ramsey of Pittsburgh, Pa., share and share alike.
‘ ‘ Seventh. I give and bequeath to Albert W. Wallace of Allegheny, Pa., 45 shares of stock of the. National Bank of Commerce in Saint Louis.
“Eighth. I give and heqneath to Mrs. Sarah A. Walker of Philadelphia, Pa., one bond of the Merchants Bridge Company of Saint Louis of the face value of $1000.
“Ninth. I give and bequeath to Mrs. Alma E. Armstrong of Atlanta, Ga., one bond of the Merchants Bridge Company of Saint Louis of the face value of $1000.
“Tenth. All the rest and residue of my estate, real, personal and mixed, of whatever kind and wheresoever situate, including my residence, known as 3840 Lindell Boulevard, and contents, I give, devise and bequeath to my beloved niece, Mathilda A. Puller.
“Eleventh. I nominate and appoint Edwin S. Puller and William B. Thompson or survivor, executor of this will and request that they give bond equal to the value of my estate, excluding realty.
“ Twelfth. In the event that any legatee, devisee or executor contests the validity of this will, either directly or indirectly, I do hereby revoke the legation, devise or appointment as executor of said legatee, devisee or executor so contesting this will.
“In Testimony Whereof, I, the said Mathilda A. Largue, have hereunto set my hand and seal this 6th day of July, 1909.
“Mathilda A. Largue, (seal)”

A written stipulation was entered into in the court below, which, without signatures, reads as follows :

“It is hereby stipulated by and between Martha Norris Martin, Elizabeth Norris Nelson, Jennie Norris Angloch, Mary M. Norris, Mary M. May and Albert W. Wallace, legatees under the will of Mathilda A. Largue, by their attorney, J. Lionberger Davis, William B. Thompson and Edwin S. Puller, executors of the estate of Mathilda A. Largue, and Mathilda A. Puller, by her attorneys, Schnurmacher & Eassieur, that the said Mathilda A. Largue, at the time of the execution of her said will, to-wit, on July 6, 190Ó, and at the time of her death, was the owner of five hundred and ten shares of the capital stock of the National Bank of Commerce in St. Louis.”

Jt was further stipulated by counsel, that the National Bank of Commerce of St. Louis', declared a dividend of $27 per share, on each of the 318 shares aforesaid; that the same was received by said executors, and that the aggregate amount of dividends ■so declared on the shares belonging to plaintiffs was, and is, $8586.

After argument, the case was taken under advisement, and on March 17, 1913, the circuit court found the issues in favor of defendants, and entered judgment generally against the plaintiffs.

Appellants in due time filed a motion for a new trial, which was overruled, and the cause duly appealed to this court.

L. The question at issue involves the construction of Mrs. Largue’s will heretofore set out. It is dated July 6, 1900, and executed in St. Louis, Missouri. It is conceded that, at the date of its execution, the above testatrix was the owner and in possession of 510 shares of the capital stock of the National Bank of Commerce, St. Louis, Missouri. It is conceded, that testatrix was the owner and in possession of 510 shares of said stock at the time of her death, on October 9, 1900. By the provisions of said will, testatrix bequeathed to the legatees named therein 510 shares of stock in the National Bank of Commerce aforesaid. She bequeathed to appellants 318 shares of stock in said bank, as shown in paragraphs three, four and seven, of the will aforesaid. It does not appear from either the will, or the record herein, that testatrix owned any more than 510 shares of stock in said bank.

It appears by stipulation “that tbe amount of dividends declared by tbe National Bank of Commerce in St. Louis on each and every share of the capital stock of said bank, which was bequeathed by the will of Mathilda A. Largue, was $27 per share, and that that amount was received by the defendants as executors of said will, and was and is retained by said executors and defendants; and that the aggregate amount of dividends so declared on the shares belonging to plaintiffs was and is $8586.”

Counsel for respondents in their brief, with' commendable frankness, state the issues involved, as follows :

“The testatrix did intend to dispose of the five hundred and ten shares of stock she owned; but the true question is, did she, by the language she used in expressing her last wishes, dispose of them in such' a way that, as a matter of law, they amount to specific legacies or general legacies?”

As said by the New York Court of Appeals, in Cammann v. Bailey, 210 N. Y. l. c. 30:

“Rules for the construction of wills are for the sole purpose of ascertaining the intention of the testator, and if the intention is clear and manifest, it must control, regardless of all rules that have been formed for the purpose of determining their construction. ’ ’

In Roper on Legacies (4 Ed.), chapter 3, section 1, page 190, a specific bequest is defined as follows :

“ ‘The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.’ ”

The same author, on page 203 of the same volume, says:

“Prom the definition of a regular specific legacy-in the beginning of the chapter, it is obvious that stock or government annuities or shares in public companies may be specifically bequeathed; but in order to make the bequests specific, the intention that they should be so, must be clear, otherwise the bequests will be general. ’ ’

It is insisted by respondents that the legacies to appellants called for no particular shares or particular certificates of stock; that each legacy could have been satisfied by the delivery of any shares or certificates of the requisite number; that they were in nowise identified or distinguished from the other shares of the same stock and were therefore general, and not specific legacies. The following authorities are relied upon, in support of the foregoing contention: Woerner on Am. Law of Administration, sec. 444; Roper on Legacies, 157, and cases cited; Tifft v. Porter, 8 N. Y. 516; Sponsler’s Appeal, 107 Pa. 95; Snyder’s Estate, 217 Pa. St. 71; Johnson v. Goss, 128 Mass. 433; Eckfeldt’s Estate, 7 Weekly Notes of Cases (Pa.), 19; Osborne v. McAlpine, 4 Redfield (N. Y. Sur.), 1; Davis v. Cain’s Exr., 1 Iredell Eq. (N. C.) 304; Sibley v. Perry, 7 Ves. 524; Robinson v. Addison, 2 Beavan’s Reports, 515; Evans v. Hunter, 86 Iowa, 413; Gilmer’s Legatees v. Gilmer’s Executors, 42 Ala. 9; Dryden, Exr., v. Owings, 49 Md. 356; Palmer v. Estate of Palmer, 106 Me. 25.

Tifft v. Porter, supra, seems to be the leading authority relied upon, and follows the English rule upon the question involved. In the Tifft case it is said:

“In those cases in which legacies of stocks or shares in public funds have been held to be specific, some expression has been found from- which an intention, to make the bequest of the -particular shares of stock could be inferred. Where, for instance, the testator has used such language as, ‘my shares,’ or any other equivalent designation, it has been held sufficient. But the mere possession by the testator at the date of his will of stock of equal or larger amount than the legacy, will not of itself make the bequest specific. ’ ’

It is ..practically conceded in all the authorities cited supra, that if the will in controversy had said “my stock,” or “the stock which I own,” or had used some similar expression, the legacies grantéd to appellants would have been specific. It is admitted in the stipulation on file “that the said Mathilda A. Largue, at the time of the execution of her said will, to-wit, on July 6, 1909, and at the time of her death, was the owner of five hundred and ten shares of the capital stock of the National Bank of Commerce in. St. Louis.” It is conceded by respondents’ counsel in their brief, that: “The testatrix did intend to dispose of the five hundred and ten shares of stock she owned.” It thus conclusively appears that she was disposing of her own stock, and not some other, which might be bought with her funds after her death.

The third paragraph of the will with the word “my” inserted in front of “stock,” would have read: as follows:

“Third. I give and bequeath to my sister, Mary ' M. May, of Beaver Palls, Pa., 137 shares of ‘my’ stock of the National Bank of-Commerce in Saint Louis.”

Under the authorities heretofore cited, if each of the bequests had been written as the above, by insert-ing “my” before the word “stock,” it would have-characterized the respective legacies of appellants, as. specific, instead of general. If testator understood she was doing the very thing which the use of “my”' before ‘-‘stock” would imply, in framing said legacies, then her intention, if carried out, would convey to, each of said legatees a specific bequest.

Many of the courts of last resort in this country have broken away from the arbitrary and iron-clad English rule aforesaid, and construe legacies as specific, when bank stock or other' stock is disposed of, • without the use of “my” or similar expressions, where the will upon its face, fairly discloses the intention of testator to make a specific bequest. In support of this proposition, we call attention to the following authorities: Jewell v. Appolonio, 75 N. H. 317; Drake v. True, 72 N. H. 322; Ferreck’s Estate, 241 Pa. St. 340; Lewis v. Sedgwick, 223 Ill. 213; Gardner v. Viall, 36 R. I. l. c. 440; In re Lyle, 85 N. Y. Supp. 290; Gordon v. James, 86 Miss. l. c. 746-748; In re Zeile, 74 Cal. l. c. 130; New Albany Trust Co. v. Powell, 29 Ind. App. 494; White v. Winchester, 6 Pick. (Mass.) 48; Metcalf v. Framingham Parish, 128 Mass. 370; Harvard Unitarian Society v. Tufts, 151 Mass. l. c. 78-9; Thayer v. Paulding, 200 Mass. 98; Kunkel v. Macgill, 56 Md. l. c. 126; Norris v. Exrs. of Thomson, 16 N. J. Eq. 542; School District No. 1 v. International Trust Co., 149 Pac. (Colo.) 620; Douglass v. Douglass, 13 D. C. App. l. c. 29; Waters v. Hatch, 181 Mo. 262.

In the foregoing cases, bank stock and other stock were disposed of by testators under facts similar to those in the case at bar, and the legacies were declared specific bequests, without the use of the word “my” or words of similar import.

Recurring to the provisions of the will under consideration, it appears from the fifth paragraph of same that testatrix was not only intending to dispose of her own stock, but created an active trust, by appointing Wm. A. Brandenburger, trustee, as to 46 shares of said bank stock, and devolved upon him the duty of holding said shares of stock. It required him to collect the dividends thereon and pay the-same to Melinda Wallace, during her natural life. She then gave said 46 shares, at the death of Melinda "Wallace, to those named, share and share alike.

There is nothing in the record to indicate that testatrix owned any other bank stock, aside from said 510 shares disposed of in the will. There is not the slightest intimation on the face of the will, that she intended to adeem any portion of said stock, or to have her executors go into the market and buy stock of any kind.

Keeping in mind the obligation resting upon us, to ascertain and carry out the intention of testatrix, we cannot escape the conviction, that Mrs. Largue fully intended that these appellants should have and hold as specific bequests, the bank stock left them by the will, as well as the dividends paid thereon to the executors of said estate.

II. It is suggested in the brief of respondents that, if all the stock mentioned in the will had been bequeathed to one legatee, or to several legatees in common, the bequest might be considered specific, under the ruling of this court in Waters v. Hatch, 181 Mo. 262. In the latter case, paragraph 2 of the will construed reads as follows:

“ ‘I give and bequeath to my daughter, Mrs. Sarah M. Yernon, of Des Moines, Iowa, sixty shares of stock of the- Carthage National Bank of Carthage, Missouri.’ ”

Judge Marshall, speaking for this division in which all concurred, on page 288, said:

“The second clause of the will separates these shares from the balance of the estate and bequeaths them to Mrs. Yernon. It would be hard to conceive of a more specific legacy.”

The conclusion reached in the Hatch case is fully sustained by many of the well considered cases heretofore cited.

We are at a loss to understand why the disposition of 60 shares of stock to one legatee, when testator had no more, is any more specific than if he had bequeathed 510 shares, being all he owned, to five or more persons, giving each a different number of shares from the other. In each instance, the testator bequeaths all the stock he owns. Each share of stock is of the same value as every other share of the same stock. The 60 shares in the Hatch case could no more be separated and identified than the 510 shares of stock in the case at bar. We see no reason for departing from the rule promulgated in the Hatch case, and hence hold that the principles there enunciated, in respect to foregoing matters, stamp the legacies aforesaid, of the will in controversy, as specific, rather than general bequests.

III. When testatrix executed the will under consideration in 1909, she was authorized by the ruling of this court in the Hatch case to dispose of ker g-^Q shares of stock in the National Bank of Commerce, as she did in the several paragraphs of her will. ' She was dealing with' her own bank stock, without any apparent intention of adeeming same or any portion thereof. It made no difference to her which particular shares of stock each legatee received, as they were all alike, and all of the same value.

If she had sold in her lifetime the 510' shares of stock in said bank to the legatees named in her will, and had received pay therefor, each purchaser under said sale, in case she refused to deliver his stock, could have maintained an action in replevin against her, for his aliquot part of the stock, as it was all alike, of the 'Same value, and not separated. [Kaufmann v. Schilling, 58 Mo. 218; Groff v. Belche, 62 Mo. 400; Lead Co. v. White, 106 Mo. App. l. c. 235; Hamilton v. Clark, 25 Mo. App. l. c. 438; Chapman v. Shepard, 39 Conn. 413; Rust Land & Lumber Co. v. Isom, 70 Ark. 99; Gardner v. Dutch, 9 Mass. 407; Kimberly v. Patchin, 19 N. Y. 330; Pleasants v. Pendleton, 6 Randolph (Va.), 473.]

In view of the law upon this subject, it would be illogical to hold that the bank stock given each legatee under the will was not sufficiently described and identified, when the will in its entirety, in connection with the clear intention of testatrix, is taken into consideration.

IV. On the facts disclosed by the record, we hold that the legacies given appellants in paragraphs three, four and seven of the will in controversy, are specific bequests, and that appellants are legally entitled to $8586 received by the executors as -dividends on the 318 shares of stock aforesaid.

The judgment below is accordingly reversed, and the cause remanded with directions to the trial court to dispose of -the case in conformity to the views here expressed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of

Railey, C., is adopted as the opinion of the court.

All of the judges concur; Blair, J., in the result.


author: GRAVES, P. J. GRAVES, P. J.

text:
    JAMES POWELL, Appellant, v. J. E. POWELL.
    Division One,
    February 29, 1916.
    1. VOLUNTARY PARTITION: Through Conduit. The fact that all the heirs of the owner of land, which they had inherited from him, selected their mother as a mere conduit for the purposes of partition, by deeding it to her, to be by her deeded to them in severalty, did not affect the character of the voluntary partition, nor did the deed from her to them convey any title, but only designated the possessory boundary to the land they already owned.

      2. -: Deed to Husband and Wife. And a deed in voluntary partition by a conduit to a daughter of the deceased owner and her husband, though seemingly a deed by the entirety, did not vest the husband with the title to the land described in the deed; but upon the daughter’s death the entire title descended to her children or her other heirs, since,, in spite of said deed, the entire title to the tract designated had been inherited by the daughter from said deceased owner.
    3. -: -: Money Paid to Equalize Interest. A pay-made by the husband of one of the coparceners to another coparcener for the purpose of equalizing the share of his wife,, did not convert the deed to him and her into a deed by the' entirety; at most it made them tenants in common, but it did ' not have even that effect if it conveyed only the wife’s share,. for a deed in voluntary partition does not convey the title; but that was cast upon the wife by descent.
    4. -: -: Estoppel. Even though the wife directed that her husband’s name be placed in the deed as grantee made' in the voluntary partition of land inherited by her and others from her father, and he improved it with her knowledge,, neither she, nor her heirs after her death, are estopped to deny that he acquired any title by the partition deed.
    5. -: -: Limitation: Husband’s Possession: CurtesyPrior to the amendment of the Married Woman’s Act of 1889, the husband' was entitled to the possession of the wife’s land,. and that amendment did not change his possessory right ah ready accrued. His wife could not maintain an action to oust him of his possession begun prior to 1889, nor could his children after her death, because immediately upon her death he became a tenant by the curtesy for life;, but that possession cannot avail to invest title in him by limitations.
    6. QUIETING TITLE: Limitation: Time to Bring Suit. Nov limitation is fixed by the statute (Sec. 650, R. S. 1889; Sec.. 2535, R. S. 1909) in which a suit to quiet title must be brought-The ten-year Statute of Limitations does not apply. [Follow- , ing Armor v. Frey, 253 Mo. 1. c. 474.]
    Appeal from Dallas Circuit Court. — Hon. G. IN <S'¡tinker, Judge.
    Reversed and remanded (with directions).

      O. H. Scott and L. G. Mayfield for appellant.
    (1) The deed from Angeline Patterson to defendant and wife was made to partition her fatter’s estate and the husband took no title thereby. Propes v. Propes, 171 Mo. 407. She took by descent from her father. Palmer v. Alexander, 162 Mo. 127. Her directions to have the deed made to both her husband and herself did not affect the title or estate. Propes v. Propes, supra; Snyder v. Elliott, 171 Mo. 362; Whitsett v. Wamack, 159 Mo. 14. (2) Although the defendant may have paid $30 to equalize the shares in the partition of the land (which we do not admit), this would give him an interest at most as tenant in common -with his wife. There would be no survivor-ship, and at her death, he would hold as a tenant in common with his children and by curtesy. .Harrison v. McReynolds, 183 Mo. 533. And if only the wife’s interest in her father’s estate was conveyed, as was the fact, any payment made by the husband inured to the wife’s benefit. Hickman v. Link, 97 Mo. 493; Manning v. Coal Co., 181 Mo. 359. Improving the wife’s land and paying the taxes thereon does not give the husband any title or interest therein. Curd v. Brown,. 148 Mo. 83; Woodard v. Woodard, 148 Mo. 241; Boynton v. Miller, 144 Mo. 687. (3) Neither the Statute ■of Limitations nor estoppel apply to this case. The deed under which the defendant took possession was made before the amendment to the Married Woman’s. Act of 1889 and the husband was entitled to the exclusive possession of the wife’s land. Snyder v. Elliott, 1.71 Mo. 362; Manning v. Coal Co., 181 Mo. 359; Arnold v. Willis, 128 Mo. 149; Flesh v. Lindsey, 115 Mo. 1. The husband’s possession was the wife’s possession; and she could bring no action againt him, absent fraud or deception. There is no charge of fraud, and therefore no “right of action” accrued to the wife during her lifetime. At the wife’s death the husband became tenant by curtesy; and was and is entitled to the exclusive possession of the land during his lifetime, and no action for possession can be brought by the heir, unless the husband should clai'm. •by hostile or adverse possession to the heir. This is •not pleaded or proven in this case. Dyer v. Wittier, 14 Mo. App. 52; Miller v. Bledsoe, 61 Mo. 96; Manning v. Coal Co., 181 Mo. 359; Martin v. Castle, 193 Mo. 183.

      John S. Eaymes and J. N. Miller for respondent.
    (1) Whether the deeds offered in evidence were executed to effect a voluntary partition of the land is to be determined by the testimony. (2) The evidence discloses a transaction amounting to more than the ordinary voluntary partition of land by co-tenants. At that time, husband and wife could deal with each other in equity, at least with respect to their properties. Tennison v. Tennison, 46 Mo. 77; Tillman v. Tillman, 50 Mo. 40; Chapman v. Mcllwrath, 77 Mo. 46; Halferty v. Scearce, 135 Mo. 439; McBreen v. Mc-Breen, 154 Mo. 330; Bower v. Daniel, 198 Mo. 320. The contract was made May 2, 1889, before the present married woman’s law took effect. But a safer course still was followed in this case.- The whole of the land was conveyed to a third party, who conveyed to defendant and his wife. Gibb v. Rose, 40 Md. 387. So the statute in reference to the husband and wife joining in the conveyance of the wife’s land, was complied with. B. S. 1879, sec. 669. Both defendant and his wife intended that the deeds should convey title to defendant; and the intention controls. Perry on Trusts (2 Ed.), sees. 139, 140; Morris v. Clare, 132 M.o. 236; Iiigbee v. Iligbee, 123 Mo. 287. A contract made between husband and wife in the friendly partitioning of the wife’s, and other land, by which they are to become tenants by the entirety, will be enforced against the wife’s heirs. Whittaker v. Lewis, 264 Mo. 208. In the pending case the contract was fully executed by the parties themselves. (3) If a cause of action ever existed, the Statute of Limitations is a complete bar thereto. All the facts were known to defendant’s wife, and Ms deed was of record, giving constructive notice (Hudson v. Calioon, 193 Mo. 559), and if defendant occupied such relation to the land that he could have conveyed it to an “innocent purchaser,” as plaintiff thinks he could, or otherwise wrongfully held title to it, although the wife of defendant, a cause of action arose in the wife’s favor in 1886. Reed v. Pointer, 145 Mo. 341. The wife died in 1888, and there is no tacking of disabilities. Gray v. Tates, 67 Mo. 601; Robinson v. Allison, 192 Mo. 566. Plaintiff was barred in 1896, ten years after a cause of action accrued to the mother. R. S. 1909, sees. 1881, 1883; Reed v. Painter, supra; Dellatre v. Edmunds, 200 Mo. 246. TMs action was commenced July 13, 1912, and at that time any action accruing prior to July 13, 1888, was also barred by the twenty-four-year Statute of Limitations. DeHatre v. Edmunds, 200 Mo. 274. Again the statute under which the present action was brought, was enacted in 1897, and a cause of action accrued under it when it took effect. Garrison v. Fugate, 165 Mo. 40. Actions under this statute are barred in ten years. Haarstick v. Gabriel, 200 Mo. 244. But as plaintiff was a minor till May 30,1905, and had three years free from disability in which to sue, the action was barred May 31, 1908. Plaintiff may have had no right of entry, but he had a right of action. Even if defendant did' have a curtesy interest in the land, under the plain provisions of the statute (R. S. 1909, sec. 2535) under which the action was brought, “pending the life estate, the opportunity existed without any impediment whatever, of bringing suit.” Hoester v. Sammelmann, 101 Mo. 624.
   GRAVES, P. J.

Action by a son against the. father to ascertain and determine title to eighty acres of land in Dallas County.

Counsel for appellant have made a very fair and a very succinct statement of the facts as follows: ■

“Thomas R. Patterson died on the 28th day of March, 1864, owning the real estate described in plaintiff’s petition, with other lands. There survived him his widow, Angeline Patterson, and children, J. F. Patterson, T. B. Patterson, Sarah E. Patterson, Nancy A. Patterson and L. C. Patterson.
“L. O. Patterson- died unmarried and without issue December 11,1884, and the widow Angeline Patterson, died April 29, 1889.
“On the 18th day of February, 1886, all the heirs of Thomas R. Patterson, for the purpose of partitioning the land, deeded it all to their mother, who at once •executed deeds to each heir. ' '
“Nancy A. Patterson had married the defendant, J. E. Powell, and the deed from her mother was made to her and her husband.
“Nancy E. Powell died September 1, 1888; she left surviving, her husband, the defendant, and two children, the plaintiff and Ethel Powell, who died about a year afterward. '
“The family were residing on the land at Nancy A. Powell’s death and the defendant has ever since resided thereon.
“It is conclusively-shown that the deed to defendant and his wife was made at the time the several deeds were made in partition of the Thomas R. Patterson land; and if defendant secured any title other 'than through the marital relation, it was purchased at the time of the execution of the deed. He says he paid $30 to Thomas R. Patterson, but it is not clearly shown why this was paid to Patterson. The land conveyed, defendant admits, was his wife’s interest in her father’s estate. It was worth about $350 or $400.
“Defendant also claims title because his wife desired that he be protected in the possession in the event of her death; as he refused to go upon the land unless it was so arranged.
“Defendant also pleads the Statute of Limitations and estoppel.
“The judgment of the court found for defendant, and adjudged him vested with title in fee in the land.”

Further details of the evidence can, if necessary, he stated in the opinion. Defendant claims the estate as the survivor under this deed by the entirety.

I. It is clear that the mother and widow, Angelina Patterson, was selected by the children and heirs as a mere conduit in their partitioning of the estate f^ber. The fact of the deeds being execilted contemporaneously makes this clear, as does the evidence. It is also clear that the land conveyed to defendant and his wife was the portion of her father’s estate coming to her and no more. The fact that the heirs in making the partition selected a conduit rather than deeding to themselves does not differentiate the case. Both methods would reach but one result, i. e., a partition of the land.

For the time being, leaving out of consideration the alleged payment of $30 by defendant at the execution of the deeds, the defendant’s status as to this land has been firmly fixed ever since the very lncid and learned opinion of Brace, P. J., in Whitsett v. Wamack, 159 Mo. 14. This case has been frequently reaffirmed since. In the Whitsett case it was held that the making of a deed to both husband and wife in the voluntary partition of lands in which the wife was a coparcener, conveyed no title to the husband. Such a deed it was held conveyed no title at all, but was a. mere instrument' of settling between the coparceners their respective possessions of land to which they already had the title. The title came to them by inheritance, and that title they'always had. So, also, it is said that our statutory proceeding of partition conveys no title, when the land is divided and allotted to the coparceners. Such proceeding only adjusts the different rights of the parties to the possession. Voluntary partition as is involved in this case has no greater effect. [Whitsett v. Wamack, 159 Mo. l. c. 23; Palmer v. Alexander, 162 Mo. 127; Propes v. Propes, 171 Mo. l. c. 416 et seq.]

In the Propes case, supra, it is said:

“The first point for consideration is, what is the legal effect of the partition deed from the other tenants in common to plaintiff, or to her and her husband for the land in question, conceding that it is a legal and valid instrument! Defendants insist that on its face it created in plaintiff and defendant Propes an estate by the entirety.
“A similiar question was before this court in the case of Whitsett v. Wamack, 159 Mo. 14, in which it was held that a deed of release or .quitclaim made by two coparceners to a third and her husband in an effort at voluntary partition of their jointly-inherited estate conveys no title to the husband.
“In Palmer v. Alexander, 162 Mo. 127, the plaintiff and his sister made parol partition between themselves of the lands inherited from their father, but by mistake the deeds incorrectly described the lands. Thereafter she married, and to correct the mistake,, new deeds were made, but in the deed to her, she and her husband were named as grantees, and on the theory that this deed created an estate by the entirety in them, after her death, plaintiff bought the land 'from the surviving husband, and it was held that the husband acquired no title to the land by the deed in partition, and therefore his deed to plaintiff conveyed none. That the lands were rightly the wife’s by descent, having descended to her by operation of the statute, and the deed conveyed no title to her, but simply adjusted among the coparceners the right to several possession by metes and bounds.
“So in the recent cáse of Cottrell v. Griffiths, 108 Tenn. 191, the Tennessee Supreme Court held that a deed to the wife and husband as grantees, conveying her share of property in which she has an undivided interest, will vest in him no greater interest than if the deed were made to the wife alone. The same rule is announced in Davis v. Davis, 46 Pa. St. 342; Stehman v. Huber, 21 Pa. St. 260; Carson v. Carson, 122 N. C. 645.
‘ ‘ And this is so even if the deed in the case at bar was made to the plaintiff and her husband by her direction, as the grantors conveyed no part of their shares, and had no interest in the shares embraced in the deed to the grantees; it belonged to the wife by inheritance, and the title being already in her, the deed merely designated her share by metes and bounds in order that it might be held in severalty. [Harrison v. Ray, 108 N. C. 215; Yancey v. Radford, 86 Va. 638.] ”

The direction of the wife to have the deed thus made to the husband as well- as to herself - does not change the situation. The statute relating to married women would require such a direction to be in writing at least. But the better reason is that the deed conveys no title and her direction to put his name therein does not change the character of deeds made in furtherance of voluntary partition. That her direction does not change the character of the deed has been expressly held in this State. [Propes v. Propes, 171 Mo. l. c. 417; Snyder v. Elliott, 171 Mo. 362; Whitsett v. Wamack, 159 Mo. 14.] So that if we leave out of consideration the alleged payment of thirty dollars by the husband at the time the deeds were executed, it must be held that he acquired no title by the deed from the elder Mrs. Patterson. He had full knowledge of the purposes of that deed. His position might be different from that of a stranger, but he knew and admits in this record that Mrs. Patterson was a mere conduit through which the voluntary partition was brought about. Unless sustainable upon some other ground the judgment nisi must be reversed.

II. We come now to the matter of the alleged payment of thirty dollars at the time of this voluntary partition. It is not claimed that the wife got more than her proportionate part of the 'estate. It is not clear for what reason this thirty dollars was paid, if paid at all. Defendant claims to have paid thirty dollars to Thomas Patterson, and to have paid it upon this land, but the purpose or reason for such a payment is not given. Whether it was paid to equalize the share of his wife with that of Thomas P'atterson no where appears.

But upon no theory can this matter justify the judgment below. He could only be entitled to all of the land upon the theory that the deed created an estate by the entirety. In such case the payment of the thirty dollars' neither adds to nor takes from his case. If he paid it to equalize the shares of his wife and Thomas Patterson, and that is the only imaginable purpose, it still avails him not. In this case only the wife’s share was conveyed to the twain. Thomas Patterson’s share was not conveyed to them. If these deeds performed the function merely of a voluntary partition, then they conveyed no title, as we have held, supra, and his payment of thirty dollars brought bim nothing. Piad he by this payment acquired and the deed conveyed to him and his wife a part or all of the portion of Thomas Patterson we would have a diffrent case, but this record shows no such case. But even in that case he would become nothing more than a tenant in common with the wife and not a tenant by the entirety. The evidence of this thirty dollar payment and its purpose is after all too vague for much speculation here.

III. Defendant nest relies npon the doctrine of estoppel. The wife was not -estopped npon any theory of the law. If we are correct in holding that this deed to him and his wife conveyed no title, bnt merely served as the voluntary partition of the land, then even though she directed his name to be n . placed therein, the land was the wife’s by inheritance from the father, and not by virtue of the deed. If the land was hers, then although he improved it with her knowledge, she is not estopped thereby to ass-ert her title. This question we have gone over in the case of Holman v. Holman, 183 S. W. 623, at this term of court. The cases will be found collated in that case. In the brief the defendant does not seriously press the matter of estoppel. This should be said in fairness to them.

IV. Nor do-es the Statute of Limitation avail him,. The deed under which defendant and his wife took possession of this particular portion of her father’s estate was made prior to the amendment of the Married Woman’s Act of 1889. At that, time he was entitled to the full possession of his wife’s, lands. [Flesh v. Lindsay, 115 Mo. 1; Arnold v. Willis, 128 Mo. l. c. 149.] The husband’s possession having accrued prior to the amendment of 1889, that, amendment did not change his right. [Arnold v. Willis, 128 Mo. l. c. 150; Leete v. Bank, 115 Mo. 184.]

Being so entitled, the wife had no action for possession against him, and the son none, at least until the death of the mother, and not then because defendant at once became a tenant by the curtesy. There is. no evidence in this record tending to show that the possession of the land as the husband of plaintiff’s mother, or the possession subsequently as tenant by the curtesy, was such as to indicate a claim of ownership of the full title as against the heir. So that if we hold that the father is now a mere tenant by the cur-, tesy, it is clear that no action for the possession has •ever accrued to the son, and none will accrue to the son until the father’s death. In the Arnold case, supra, on page 149, it is said:

“Plaintiff’s right to the possession of the interest -of his wife in the lots accrued at the death of her mother, Mrs. Ricker, which terminated the lease from her son, John W., to her. As to when this occurred the evidence was very unsatisfactory, but some time, It seems, about the year 1884. When it did transpire, plaintiff, by virtue of his marital rights under the statute then in force, became entitled to the possession of the lots, his wife having the title in fee simple, and not •as separate property, and he had the right to sue therefor in his own name. [Mueller v. Kaessmann, 84 Mo. 318, and authorities cited; Bledsoe v. Simms, 53 Mo. 305; Wilson v. Garaghty, 70 Mo. 517; Flesh v. Lindsay, 115 Mo. 1.]”

And on page 150 of the same case it is further added:

' “The Married Woman’s Act as it now stands, in ■so far as the marital rights of the husband to the possession of land belonging to the wife are concerned, materially changed his common-law rights, and, in legal contemplation, as completely deprived him of all right to the possession or control of the increase and profits, as if it belonged .to some other person.
“But the fact that the right of plaintiff’s wife to sue in her own name for her separate property was conferred upon her by the Revised Statutes of 1889, -did not deprive him of a right already vested, that is, the right to the possession of the lots, from and after the death of Mrs. Ricker, at which time the right accrued. [Leete v. Bank, 115 Mo. 184.] ”

If, therefore, we are right in holding that this deed made for the mere purpose of partition conveyed no title to the husband, then his possession to the death ■of the wife was one created by the marital relation, but it was a legal right of the husband. His possession was not ousted by the amendment of 1889. The wife never had a right of action against him, and of course the son had none. Upon his death he became entitled to the full possession as tenant by curtesy, and this possession now continues.

V. Lastly it is claimed that the plaintiff is barred because.he did not bring his action under the Act of 1897, old section 650, now section 2535, Revised Statutes 1909, within proper time.

“ Plaintiff was a minor till May 30, 1905,” as stated in respondent’s brief. But we need not discuss this minority, nor the question of a tolling of a statute of limitation. This court in Armor v. Frey, 253 Mo. l. c. 474 et seq., has held that there was no limitation fixed for the bringing of an action under the original Act of 1897. In this case Roy, C., goes at length into the case law, and we are satisfied with his conclusion. What was said in Haarstick v. Gabriel, 200 Mo. l. c. 244, was not necessary to that ease, and if the language could be construed as a declaration of law to the effect that the right to sue under old section 650 was barred in ten years it should be held to be obiter. What was there said was said by Valuant, J., arguendo upon a contention that the five-year statute applied. Our brothers in Division Two evidently so understood this language in promulgating the opinion in Brewster v. Land & Improvement Co., 247 Mo. l. c. 226. But whatever has been the previous notions of the court before, we are satisfied with the rulings in Armor v. Frey, supra. Under that holding there is nothing in this defense for the defendant. Under the facts of this case the plaintiff has the fee to this land subject only to the curtesy estate of the defendant. The court nisi should have so declared.

The judgment is reversed and the cause remanded with directions to the circuit court to enter up such a judgment as above indicated. It is so ordered.

All concur.

ON MOTION TO MODIFY JUDGMENT.

GRAVES, P. J.

When this case was first written we adopted the statement of facts made by counsel for appellant, and in directing a decree we overlooked this statement of fact: ‘ ‘ That Nancy E. Powell died September 1, 1888; that she left surviving, her husband, the defendant, and two children, the plaintiff and Ethel Powell, who died about a year afterward.”

Considering this fact, when Nancy E. Powell died, the husband was possessed of a curtesy estate, and the fee passed to the two children. Upon the death of Ethel Powell her interest in the fee would pass to the brother and father in equal portions. We will, therefore, modify our original opinion so as to hold that the trial court should have found that the defendant had a curtesy estate in .the whole of this land, and in addition thereto had one-fourth interest in the fee estate, and the plaintiff herein had a three-fourths interest in the fee estate, subject to the curtesy estate of the father.

The judgment is therefore reversed and the cause remanded with directions to the trial court to enter judgment as herein above indicated, rather than as indicated in the original opinion.

All concur, except Woodson, J., absent.


text:
    MARION D. RAY et al., Appellants, v. LOU WESTALL et al.,
    Division One,
    February 29, 1916.
    1. WILL: General Incompetency of Witness: Husband of Legatee. A will must stand or fall as a whole; and if the husband of the principal devisee is a competent witness for any person in a suit by which the validity of-the will is being contested, his testimony would inure to her benefit.

      2. -: Husband of Legatee: Competency as Witness. Property, both real and personal, devised to a married woman by a will, is her separate property, and can be sold or mortgaged without reference to her husband; and in a suit contesting the validity of the will, by which she is made the principal legatee •and he is given nothing, he is competent to express his opinion, as a non-professional witness, based upon what he observed while in testatrix’s presence, as to her sanity.
    3. -: Instruction: Incapacity: Undue Influence: Submitted in Alternative. An instruction for the proponents of a will, telling the jury that if testatrix “was not of unsound mind and incapable of making a will, or that the said paper writing was not procured to be made and executed by undue influence, then you must find that said paper writing was the will” of said testatrix, is' palpably erroneous. The two grounds of contest being charged, and there being testimony to sustain both, the instruction required the jury to sustain the will if they found either charge was not supported by the evidence, whatever they might find as to the other charge.
    4. -: -: Incapacity: Monomania. An instruction telling the jury that if they find from the evidence that at the time of making the will, the mind of testatrix “was unsound or impaired in any one or more particulars, yet practically sound and unimpaired in all others, still you will not . be warranted in finding that she was thereby mentally incapacitated from making a will,” is misleading, since it authorized the jury to sustain the will, even though her mental impairment had gone to the extent of rendering her incapable of understanding the nature and extent of her property.
    Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.
    Reversed and remanded.

      Rees Turpin and James E. Taylor for appellants.
    (1) The husband of the principal respondent was erroneously permitted to testify. Paul v. Leavitt, 53 Mo. 59'5; Roberts v. Bartlett, 190 Mo. 680 ; Layson v. Cooper, 174 Mo. 211; Haerle v. Kreihn, 65 Mo. 202; Joice v. Branson, 73 Mo. 28; Wood v. Broadley, 76 Mo. 23; Norvell v.' Cooper, 155 Mo. App. 445; Greenleaf on Evidence (14 Ed.), sec. 335; Tomlinson v. Lynch, 32 Mo. 160; Cook v. Neely, 143 Mo. App. 632; Berst v„ Moxom, 157 Mo. App. 342; Henning v. Stevenson, 118 Ky..318. (2) Defendants ’ instructions 7 and 9 contradict plaintiffs ’ instruction P-b and improperly declare the law and are confusing and misleading. Ghio v. Mercantile Co., 180 Mo. App. 686; Sheperd v. Transit Co., 189 Mo. 362; Imp. Co. v. Ritchie, 143 Mo. 587; Ross v. St. Ry. Co., 132 Mo. App. 472; Hovey & Brown v. Aaron, 133 Mo. App. 573; Mining Co. v. Fidelity Co., 161 Mo. App. 185; Spillane v. Railroad, 111 Mo. 555; Baker v. Railroad, 122 Mo. 533; Morton v. Heidorn, 135 Mo. 608.

      Calvin & Rea for respondents.
    (1) Instruction 7 is a correct declaration of the law under the issues joined by the pleadings and under the testimony adduced. It properly submitted to the .jury the two, and the only, questions left for their determination. Sayre v. Princeton University, 192 Mo. .120; Winn v. Grier, 217 Mo. 453; Cach v. Lusk, 142 Mo. >630; Sayre v. Lindeman, 153 Mo. 288; Cutler v. Zolin;ger, 172 Mo. 92. (2) There was no error committed by Ihe court in permitting the witness, Westall, to detail the facts which he gave in testimony, even though his wife was a party defendant in the action. Denning v. Butcher, 59 N. W. (Iowa) 69; Shanklin v. McCracken, 140 Mo. 348; Loder v. Whelpley, 111 N. Y. 239.
   RAILEY, C.

This action was commenced in the circuit court of Jackson County, Missouri, on January 30, 1909, to contest the last will and testament of Mrs. Nona Ferguson, a widow, who died in said county on January 6, 1909, possessed of real and personal property located in said county. She left no lineal descendants at the time of her death. It is charged in the petition that no surviving kindred of Mrs. Ferguson, of any degree, are known to plaintiffs; that the latter are the only persons having any interest as heirs or devisees in Mrs. Ferguson’s estate; that they claim their respective interests under a will made by said testator in 1905, and that the defendants herein are the only other persons known' to plaintiffs who claim any interest in said estate.

It appears from the record that Mrs. Fergnson, on December 14,1908, executed an. instrument purporting to be her last will and testament. Defendant J. H. Martin, one. of the legatees, is named as executor of said will. The principal legatee named therein is defendant Lou Westall — wife of Frank Westall — who is given the real estate and the bulk of testator’s property.

Appellants charge in petition, and at the trial attempted to show, that the will aforesaid was procured through undue influence exercised by defendants over the mind of testator; and that the latter was nientally incompetent to make a will, etc.

The abstract of record contains the following:

“Defendants to sustain the issues upon their part further offered, and introduced the testimony of James Cole and James H. Hawthorne, witnesses to the execution of said paper writing, Dr. Franklin E. Murphy, Dr. George C. Mosher, Mrs. Allen H. Draper, Allen H. Draper, James H. Martin, I. Schwartz, Sophie Johnson and Lou Westall, who, among other things,-testified that in their opinion Nona Ferguson was sane, and related incidents of her conduct which defendants claimed tended to show that said Nona Ferguson was sane.
‘ ‘ Plaintiffs in order to sustain the issues upon their part offered and introduced the testimony of Mrs. Dora Webster, Dennis J. Stroub, Anna O. Stroub, Mrs. J. A, King, Dr. H. P. Hueyette, Mrs. Minnie M. Lord, Dr. James E. Trexler, Mrs. Hattie Shepherd and Regina Stroub, who testified that in their opinion Nona Ferguson was insane at the time said paper writing was executed, and related incidents of her conduct which the plaintiffs claimed tended to show that Nona Ferguson was insane. ’ ’

The trial court gave to the jury instructions purporting to cover the two grounds of contest supra, and hence we infer that there was evidence tending to show want of mental capacity upon the part of testator to make a will, as well as undue influence brought to bear upon the mind of testator which induced the making of same. The instructions given in the trial below will be considered hereafter.

The jury returned a verdict for defendants, -sustaining the will, on June 20, 1912, and judgment was entered on said verdict in due form.

Plaintiffs filed motions for new trial and in arrest of judgment. Both motions were overruled and the cause duly appealed to this court.

I. Mrs. Lou Westall was one of the principal beneficiaries in Mrs. Nona Ferguson’s alleged will. Her husband, H. F. Westall, over the objection of plaintiffs, was permitted to. testify in behalf of the defendants, other than his wife, as to the sanity testator. Appellants contend that said witness was incompetent to testify, and assign as error the action of the trial court in permitting him to do so.

We may say in passing, that if H. F. Westall was a competent witness for any person, his testimony would .inure to the benefit of his wife as well as the other legatees in the will, for the latter must stand or fall as a whole. [Schierbaum v. Schemme, 157 Mo. l. c. 17 and following; Wood v. Carpenter, 166 Mo. l. c. 485; King v. Gilson, 191 Mo. l. c. 333; Meier v. Buchter, 197 Mo. l. c. 92; Seibert v. Hatcher, 205 Mo. l. c. 101-2; Teckenbrock v. McLaughlin, 209 Mo. l. c. 541-2.]

Mr. Westall is not a beneficiary in the will, nor is he a party to this action. If the will is sustained, the property acquired thereunder by his wife would become at once her separate estate, and both the real and personal property bequeathed to her could be sold, or encumbered by her without any reference to her husband.

It does not appear from the record that Mrs. Westall was present at any of the times referred to by ber husband when be observed tbe acts and conduct of testator. He was not asked to state any conversation be bad witb testator, or any other person. He was simply called upon to express bis opinion as a non-professional witness, based upon what be observed while in tbe presence of testator. We find nothing in our statutes, nor in tbe provisions of tbe common law construed in connection witb tbe statutes, which would preclude Mr. Westall from testifying as he did, in behalf of all tbe defendants to this action.

Tbe conclusion just reached is strongly supported by tbe following authorities in this State, and elsewhere: Lead & Zinc Inv. Co. v. Lead Co., 251 Mo. l. c. 741; Brown v. Patterson, 224 Mo. l. c. 651-2; Weiermueller v. Scullin, 203 Mo. l. c. 469 and following; Lynn v. Hockaday, 162 Mo. l. c. 121 and following; Shanklin v. McCracken, 140 Mo. l. c. 356 and following; Banking House v. Rood, 132 Mo. l. c. 258 and following; The First Nat. Bank of St. Charles v. Payne, 111 Mo. 297 and following; Bates v. Forcht, 89 Mo. l. c. 126 and following; German-American Bank v. Camery, 176 S. W. l. c. 1077; Denning v. Butcher, 91 Iowa, 432-3 and following; Kostelecky v. Scherhart, 99 Iowa, l. c. 124-5.

Tbe Missouri authorities supra review the common law and our statutes in reference to tbe matter under consideration here, and in our opinion sustain the right of H. F. Westall to testify as be did in tbe trial below. Appellants contention, therefore, that Mr. Westall was an incompetent witness, is overruled.

II. Plaintiffs assign as error tbe action of tbe trial court in giving, at tbe instance of defendants, instruction numbered seven, which reads as follows:

“The jury are further instructed that if you find and believe from the evidence that at the time of the making of the paper writing propounded herein as the. Nona Ferguson, that she, the' said Nona Ferguson, was not of unsound mind and incapable of making a will, or that the said paper writing was not procured to be made and executed by undue influence, exercised with or- upon her by the defendants herein, then you must find that said paper writing is the will of the said Nona Ferguson.”

It is charged in the petition, and plaintiffs’ evidence tends to show, that Mrs. Nona Ferguson was mentally incapable of making a will and that she was unduly influenced to execute the instrument offered as her last will and testament. This instruction is complete within itself, and authorized the jury to return a verdict sustaining the will, if they believed téstator was mentally capacitated to make one, although the jury might believe from the evidence that she had been unduly influenced by defendants to do so. On the other hand, it authorized the jury to sustain the will, if testator was not unduly influenced by defendants to execute it, although they might have believed from the evidence, that she was mentally, incapacitated to make a will. On the facts presented by the record, the jury should have been told in substance, that if testator was mentally capable of making a will, and that the instrument offered and read in evidence, as Mrs. Ferguson’s last will and testament, was not procured through the undue influence of said defendants or either of them, then the jury should return a verdict sustaining said will.

The above instruction is palpably erroneous, and the giving of same necessitates the reversal of the cause.

III. Complaint is made of defendants’ instruction numbered nine, which reads as follows:

“The jury are further instructed that should you find and 'believe from, the evidence that, prior to or at the time of the making of the paper writing in evidence before you, the mind of the said Nona. Ferguson was unsound or impaired in one or more particulars, yet practically sound and unimpaired in all others, if you so find, still you will not be warranted or justified in finding that by reason of such unsoundness, if any, or impaired condition, if any, she was thereby mentally incapacitated from making a will, but before you can find that said paper writing is not the will of the said Nona Ferguson, you must find and believe from the evidence that by reason of the unsound ■or impaired condition of her mind (if in fact you find such condition or conditions did exist), she was thereby rendered unable to transact her ordinary business and was thereby rendered incapable of understanding the nature and extent of her property and of appreciating the natural objects of her bounty.”

This instruction informed the jury that if Mrs. Ferguson’s mind was “unsound” in “one or more particulars,” yet sound in all others, the jury would not be justified in finding, that by reason of such unsoundness, she was mentally incapacitated from making a will. In other words, if the jury believed she was unable to transact her ordinary business and was incapable of understanding the nature and extent of her property (both of which might have been included in the one or more particulars above mentioned), yet the jury would not be warranted in finding from the above, that testator was incapable of making a will. But this is not the only objection to said instruction. It concludes as follows:

“But before you can find that said paper writing is not the will of the said Nona Ferguson, you mu,st find. . . . that by reason of the unsound . . . condition of her mind . . . [a] she was thereby rendered unable to transact her ordinary business, and [b] was thereby rendered, incapable of understanding the nature and extent of her property and [c] of appreciating the natural objects of her bounty.”

If testator, at the time of the execution of the •will, bad possessed the qualifications negatived in paragraphs a, b, and c, supra, she would have been competent to make a will under the laws of this State. The instruction, however, as it reads, imposed upon plaintiffs the burden of showing that testator was deficient in respect to all the matters referred to in sub-propositions a, b and c when the jury might have concluded from the evidenec that Mrs. Ferguson was incompetent to transact her ordinary business, and was incapable of understanding’the nature and extent of her property.' If testator was mentally incompetent to transact her ordinary business and was incapable of understanding the nature and extent of her property, she was not qualified under the law to make a will, although she might have appreciated the natural objects of her bounty, as stated in said instruction.

The above charge is not only misleading, but does not properly declare the law and should not have been given in its present form.

IY. On account of the errors heretofore pointed out, the cause is reversed and remanded, in order that it may be proceeded with in conformity to the views here expressed.

iBrown, G-, concurs.

PER CURIAM.^ — The foregoing opinion of Raiusy, C., is hereby adopted as the opinion of the court.

Graves, P. J., and Woodson, J., concur; Blair, J., concurs in paragraphs 2 and 3 and in the result; Bond, J., . concurs in paragraphs 1 and 2 and result.