author: MOZLEY, C

text:
    THE STATE ex rel. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY and WALKER D. HINES, Director General of Railroads, Appellants, v. PUBLIC SERVICE COMMISSION OF THE STATE OF MISSOURI.
    In Banc,
    November 30, 1921.
    1. PUBLIC-SERVICE COMMISSION: Hearing Before General Counsel. An assignment that the Public Service Commission erred in appointing its general counsel as special examiner to conduct the hearing of a complaint pending before it, for the reason that said appointment was unauthorized by law, will be overruled, without determining the legality of the appointment, where it is apparent that appellant has not been injured thereby.
    2. RAILROADS: Compulsory Stoppage of Trains: Interference With Interstate Commerce. It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains at a given point or the re-arrangement of their schedule; and the fact whether' the local facilities are adequate the court may determine and make its own findings, as a court of equity, since such fact is necessarily involved in the determination of the Federal question whether the order of the Public Service Commission concerning an interstate train does or does not directly regulate interstate commerce by imposing an arbitrary requirement.
    3. -: -: -: Mountain Grove. The St. Louis-San Francisco Railway Company has a line of railway from Kansas City to Memphis, Tennessee, passing through Springfield, and prior to January, 1918, its two interstate trains, one north and the other south, stopped at Mountain Grove, on flag, and the stopping of these trains at said point having been suspended the Public Service Commission ordered them to be stopped, the south-bound for the purpose of talcing on and discharging passengers at said point, and the north-bound, on flag "or signal, for the purpose of discharging passengers who boarded the train south of the Arkansas line and of taking on passengers holding tickets for points to or west of Springfield. To this order the railroacl company objects that the two trains are interstate trains between Kansas City and Memphis, with connecting lines for the interchange of interstate passengers and express traffic and the handling of the mails; that the elimination of the stops at Mountain Grove was to enable said trains to make necessary connections at said cities with trains on other railroads; that said orders directly burden and interfere with interstate commerce; and that the train service at Mountain Grove was adequate and reasonable, since two passenger trains northbound and two south-bound regularly stopped at Mountain Grove each day. The evidence shows that Mountain Grove has 2500 inhabitants; that two State institutions, maintained at an expense of $200,000 biennially, are located there; that these institutions are visited yearly by 700 people from this and surrounding states, and the inconvenience of getting in and out is great; that the two' regular south-bound trains' are invariably crowded, many passengers being unable to obtain seats; that if additional coaches were attached to these trains the congestion would be relieved; that Mountain Grove is a gateway for territory extending thirty-five miles north and northeast and the same distance south and southeast; that persons residing in this territory come there to board trains and to receive and ship freight; that before the stopping of the two interstate trains they furnished reasonably adequate facilities for travel, but much ineonvenienee and hardship have resulted from their discontinuance; that while they were stopped on flag at said point, from one to eight passengers got off the southbound train daily; that said interstate trains, in taking the mail at said point, slow down to a speed almost amounting to a stop; that if stopped, it would take five minutes to regain the speed, but said five^ minutes lost could be regained, under favorable conditions, between that point and Memphis, and the connection of fifteen minutes at Kansas City would not be missed. Held, that the order was not an unreasonable interference with interstate commerce,' and was justified by the facts.
    4. -: Suit Against Director General: Dismissal. An action brought "against a railroad company and the Director General of Railroads is not to be dismissed against the company, after the Government has ceased to operate the railroad. The Act of Congress authorizing the President to take charge of railroads in wartime, authorized actions to he brought against carriers and prohibits the carrier from making the defense that it is an instrumentality or agency of the Federal Government.
    Appeal from Cole ^Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed.

      W. F. Evans, E. T. Miller and A. P. Stewart for appellants.
    (1) Appellants were denied a bearing before tbe Commission as provided-by law. The appointment of the general counsel to the Commission as special examiner was improper and unwarranted in law. Secs. 6 and 119, P. S. C. Act, Laws 1913, pp. 562, 646. (2) Upon the record the court should have reversed the order of the Commission as to St. Louis-San Francisco Railway Company, the record showing that the company was not operating its railroad at the time or after the complaint was filed. (3) The order of the Commission affirmed by the circuit court is arbitrary, unjust, unreasonable and excessive, and is without warrant on the record. (4) The order of the Commission affirmed by the circuit court, in requiring appellants to stop-their interstate 'trains Nos. 105 and 106 at Mountain G-rov.e, directly burdens and interferes with interstate commerce, and-is therefore void because in conflict with Section 8, Article I, Constitution of the United States. Illinois Cent. Ry. Co. v. Illinois, 163 U. S. 142; Cleveland Railway Co. v. Illinois, 177 U. S. 514,'521; McNeill v. Southern Railway Co., 202 U. S. 543, 561; Mississippi Railroad Com. v. Illinois Cent. Ry.‘ Co., 203 U. S. 335, 344; Atlantic Coast Line v. Wharton, 207 U. S. 328, 334; Herndon v. Chicago Ry. Co., 218 U. S. 135, 156; Chicago Ry. Co. v. Wisconsin Railroad Com., 237 U. S. 220, 231. (5) The order of the Commission affirmed by the circuit court, in requiring appellants to stop train No. 106 at Mountain Grove to let off passengers who board said train at points soutli of the Arkansas State line, is void because an unlawful regulation of interstate commerce, the exclusive power to regulate which is conferred upon Congress by the commerce clause of the Federal Constitution. Hall v. DeCuir, 95 U. S. 485, 488; County of Mobile v. Kimball, 102 U. S. 691, 697, 702; Wabash Ry. Co. v. Illinois, 118 U. S. 557, 570; Bowman v. Railway, 125 U. S. 465, 484.

      R. P. Spencer and James D. Lindsay for respondent.
    (1) Appellants were not denied a hearing before the Commission as provided by law.' The Commission might “reasonably require” the counsel to proceed to Mountain Grove and take this testimony. Though the Governor appoints the counsel, the Commission must make use of his services or “employ” him. At the hearing, the Commission is not a party to the suit. Sections 6, 7, 9, 24, 119 and 127, P. S. C. Act, Laws 1913, p. 562; Webster’s Unabridged Dictionary, definition of “Employ.” (2) The circuit court’should not have reversed the order of the Commission* as to St. Louis-San Francisco Railway Company. While the ultimate control of the line was in the Director General of Railroads, this was a temporary arrangement. The ’company was a proper party, and the order, being in the nature of a legislative act, applies to whichever of the two organizations is engaged in operating the roads. Both were made parties in order to meet just such a situation as is now presented by the surrender of the ^chnieal control of the road by the government. Grand Trunk Western Ry. v. Indiana, 221 U. S. 400, 403. (3) The order merely provides for adequate local service, equal to the reasonable requirements of the locality, regard being had to the size of the city, the territory served, the cost of the proposed service, and all other facts having a bearing upon the. relative convenience and necessity, and the relative cost of the service,, and is, therefore, reasonable. State ex rel. v. Public Service Comm., 273 Mo. 632; Lusk v. Public Service Comm., 210 S. W. 72, 277 Mo. 264; Gulf Ry. Co. v. Texas, 246 U. S. 58; State ex rel. v. Public Service Comm., 210 S. W. 386, 277 Mo. 175. (4) The order imposes no undue burden upon, .nor does it interfere with, interstate commerce. Gulf Ry. Co. v. Texas, 246 U. S. 58; Chicago, Burlington &■ Quincy Ry. v. Railroad Com., 237'U. S. 220; Lake Shore Railway v. Ohio, 173 U. S. 285. (5) The order of the Commission relative to Train 106 is not an attempt to unlawfully regulate interstate commerce, but a reasonable order made by the only commission, State or Federal, authorized to make it, and designed to serve passengers from a distance whose destination is Mountain Grove and is, to that extent, in aid of interstate commerce. In the absence of congressional legislation covering that particular subject-matter, the State may make reasonable orders governing the stopping of trains engaged in interstate commerce. Lake Shore & Michigan Southern Ry. v. Ohio, 173 U. S. 285; Minnesota Rate Cases, 230 U. S. 480; Valley S. S. Co. v. Wattawa, 244 U. S. 202; Gladson v. Minnesota, 166 U. S. 427.
   MOZLEY, C

This case comes here on a writ of review of a judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission.

The complaint filed with the Commission, upon which its order was based, is as follows:

“Now comes .the Commercial Club of Mountain Grove, Missouri, and respectfully shows to the Commission that this club is a voluntary organization of the business men and citizens of the city of Mountain Grove, organized for the development of said city. Your petitioner further states that at a regular meeting of said commercial club the undersigned, A. F. Collier, was appointed chairman of a committee for the purpose of instituting the neees'sary proceedings to cause the St. Louis-San Francisco Railroad to regularly stop trains Nos. 105 and 106 at Mountain Grove, Missouri.
“Your petitioner further states that the St. Louis-San Francisco Railroad is a corporation organized under the laws of the State of Missouri and is engaged in the operation of a line of railroad between points' in Missouri and points in the States of Arkansas, Kansas, Oklahoma, etc., and specifically that it operates a line of railroad from Kansas City, Missouri, through Springfield, Missouri; thence through' Webster, Wright, Texas, Howell and Oregon counties, to points in Arkansas and other states, and that said line of railroad passes through Mountain Grove, Missouri. That in operation of such line of railroad said company is a common carrier engaged in the transportation of freight and passengers for hire, as defined by the laws of the State of Missouri. That at the present time the properties of said St. Louis-San Francisco Railroad are under the control of and being operated by Walker D. Hines as Director General of Railroads, United States Railroad Administration, under and by virtue of an appointment by the President of the United States, and he is responsible for the operation of the trains of said co-defendant at the present time.
“For cause of action your petitioner shows that Mountain Grove, Missouri, is an important and growing city in the southern part of the State <5f Missouri and that the passenger traffic in and out of said point is extremely heavy, and that the proper growth and development of Mountain Grove, Missouri, is dependent upon better passenger service being furnished than is now operated by the defendants herein.
“Your petitioner further alleges that for a long time past the defendant company did stop trains Nos. 105 and 106 at Mountain Grove, Missouri, on fla,g, for passengers to and from Springfield on the yrest, and for passengers to or from certain points south, but about sixty days ago a change in train schedules was made by said St. Louis-San Francisco Railroad, and as a result thereof trains Nos. 105 and 106 do not now stop at Mountain Grove, to the detriment of your petitioners' and the city of Mountain Grove.”

The prayer was for a hearing to enable the petitioner to show the necessity for the regular stopping of said trains, and such order or orders in' the premises as appeared proper to the Commission.

To this complaint the railroad filed, its separate answer, denying that it had anything to do with the operation of said railroad, and averred that since January 1, 1918, it is now and has been continuously operated -by the Director General of Railroads appointed as such by the President of the United States.

The Director General filed a separate answer, in which, among other admissions, is the following:

“Defendant admits that prior to the 17th day of November, 1918, Train No. 105 on sáid St. Louis-San Francisco Railroad was stopped at Mountain Grove, Missouri, on flag, for passengers destined to Memphis, Tennessee, and points south and east of’said latter point, and that Train No. 106 on said St. Louis-San Francisco Railroad was stopped at Mountain Grove, Missouri, on flag, for passengers destined to points north and west of Springfield, Missouri, and admits that on or about said date -a change in schedule was made, as a result whereof said trains Nos. 105 and 106 do not now stop at Mountain Grove, Missouri, on flag, but denies that said change in schedule or the failure to stop said trains 105 and 106 at Mountain Grove is to the detriment of complainant or to the detriment of said city of Mountain Grove.
“Further answering, defendant states that this defendant now operates, in addition to trains Nos. 105 and 106, four passenger trains daily on said St.. Louis-San Francisco Railroad, through said city of Mountain Grove, all which trains, except trains Nos. 105 and 106, are scheduled and do stop at Mountain Grove. The schedule of said trains at Mountain Grove is as follows:
“South-bound No. 101.11:05 P. M.
No. 103 . 10:30 A. M.
“North-bound No. 102 . 4:45 A. M.
” No. 104....-. 5:45 P.M.
“Defendant further avers that the service provided by said passenger trains which now stop at Mountain drove, Missouri, as aforesaid, is reasonably adequate to afford all necessary accommodations for the traveling public to get in and out of Mountain Grove.
“Further ’answering, defendant states that said trains Nos. 105 and 106 are interstate trains operating between Kansas City, Missouri, and Memphis, Tennessee, as well as Birmingham, Alabama, with connecting lines for the interchange of interstate passengers and express traffic, and the handling of the United States mails; that the elimination of the stops of said trains on flag at Mountain Grove, Missouri, was to enable said trains to maintain said schedule and to make necessary connections at the points aforesaid with trains on other lines of railroad; and that for this Commission to grant the reliéf prayed for in the complaint would directly burden and interfere with .interstate commerce, and would conflict with Section 8 of Article 1 of the Constitution of the United States; Section 21 of Article II of the Constitution of Missouri, and Section 30 of Article II of same Constitution, and Section I of Article XIV of the Amendments to the Constitution of the United States.”

Upon the issues thus made a hearing was had before the Public Service Commission and the following order was made, and affirmed by the Circuit Court of Cole County:

“Ordered: 1. That defendant, the St. Louis-San Francisco Railroad, provide for the stopping of its south-bound train No. 105 at Mountain Grove, Missouri, for the purpose of taking on and discharging passengers at that point.
“Ordered: 2. That defendant, the St. Louis-San Francisco Railroad, provided for the stopping of northbound train No. 106 at Mountain Grove, on flag or at signal, for the purpose of letting off passengers who boarded said train south of^the Arkansas line, and for the purpose of taking on passengers holding tickets for poirits beyond Springfield, Mo,”

Motion for rehearing, charging that the conclusion of the Commission on all the defenses pleaded in the answer of appellant and the assignment that the evidence was insufficient to support said finding, was filed and overruled.

I. Appellant complains that the Commission erred in appointing A. Z. Patterson, general counsel of the Commission, as special examiner to conduct the hearing of said cause, for the reason, it is alleged, that such appointment was unauthorized and without the authority of law.

Without passing upon the propriety or strict legality of Patterson’s appointment, we think it is apparent that appellant has not been injured thereby and, for this reason, the complaint ought to be overruled.

II. The question of whether or not the order of the Commission as affirmed by the circuit court imposes an undue burden on interstate commerce is a vital one to be determined under the facts in this ease.

In the case of Chicago, Burlington & Quincy Ry. Co. v. Railroad Commission of Wisconsin, 237 U. S. 220, l. c. 226, it is held as follows:

“In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the re-arrangement of their schedules. (2) Such facilities existing, that is, the local conditions being adequately met, the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.” (Italics ours).

To the same effect are the cases of Gladson v. Minnesota, 166 U. S. 427; Lake Shore Railroad v. Ohio, 137 U. S. 285; Atlantic Coast Line v. N. C. Corp. Comm., 206 U. S. l. c. 1; Mo. Pac. Ry. v. Kansas, 216 U. S. 262; Cleveland & C. Ry. v. Illinois, 177 U. S. 514; Mississippi Ry. Comm. v. Ill. Cent. Railroad, 203 U. S. 335; Atlantic Coast Line v. Wharton, 207 U. S. 328; State ex rel. v. Publ. Serv. Comm., 277 Mo. 175.

Following the doctrine of the above authorities a correct conclusion upon the facts of the instant case will lead to a proper result in its determination.

“It must be construed as a suit in equity, and we make our own finding of facts.” [State ex rel. M. K. & T. Ry. v. Publ. Serv. Comm., 277 Mo. l. c. 193; State ex rel. v. Publ. Serv. Comm., 271 Mo. 155; Publ. Serv. Comm. Act, Laws 1913, sec. 111.]

Looking then to the evidence, as disclosed by the record, what is shown by the testimony of the sixteen witnesses and the exhibits offered? We have carefully read and re-read the evidence offered by both side to the controversy, and we have reached the conclusion that it justifies the order made. Without setting out the testimony in full, it is sufficient to say that it shows Mountain Grove to be a city of 2500 inhabitants; that two State institutions, the Fruit Experiment Station and the Poultry Station, both of which are maintained by the State at an expenditure of $200,000 every two years, are located there; that these institutions are visited yearly by 700 people from this and surrounding states and the inconvenience in getting in and out is very great; that local trains 101 and 103 out of Springfield to Mountain Grove are invariably crowded as far as Seymore, a short distance north of Mountain Grove, and many men, women and children are compelled to stand on account of being unable to get seats until that point is passed. The testimony shows that if additional coaches were put on these trains the congestion would he-relieved, hut that has not been done.' It shows that Mountain G-rove is a sort of g-ateway for a scope of territory extending about 35 miles north and northeast and the same distance south and southwest; people come there to hoard trains, to get freight and to ship out stuff for other points. Interstate trains 105 and 106, prior to November the 17th, 1918, did stop at Mountain Grove, on flag, for passengers to or from Springfield on the west and for passengers to or from certain points south; that during that period the service was good, in that it furnished the people who desired to get out and those who desired to come in a reasonably convenient way of doing so, but since the discontinuance of these trains much' hardship has resulted. It shows that while said trains were operated on flag at Mountain Grove from 1 to 8 passengers daily got off of No. 105. The proof shows that the shipments and products of Mountain Grove per annum are creamery products, butter and soda water, $900,000; chickens and eggs, $300,000; lumber, $100,000; cattle, hogs and mules, $100,000; grain and hay, $100,000; that it has three banks whose capital aggregate more than $800,000, and a number of wholesale houses which aid in supplying the necessities of country stores and the territory above mentioned. It shows that said trains 105 and 106, in taking the mail at Mountain Grove, slow down to a speed almost amounting to a stop and so that a person could if allowed get on and off. Appellant’s assistant superintendent testified that it would require five minutes to stop and get the train going again, to which would be added whatever time the train stood at the station; he stated also that if everything was favorable and nothing unusual took place the five minutes could be regained between Mountain Grove and Memphis. The general' superintendent of appellant testified that it was his understanding — he didn’t know whether he was correct, but ultimately said he was — that prior to the 17th day of November, 1918, the Eock Island, one of the Kansas City connections, moved up its time of leaving fifteen minutes, arbitrarily but be would not say tbat, if tbe train missed its connection with the Rock Island, it was caused by reason of having to stop at Mountain Grove. When asked why he called said\ trains throug'h trains when they stopped at Paola, Fort Scott and LyCygne, he answered: “We don’t make any stops on those trains that we feel we don’t have to or are justified.” He further stated that through passenger traffic and local passenger traffic is based upon what the railroad would consider they would be justified in doing.

As stated above we think the foregoing facts are ample to justify the orders made.

III. In our opinion the constitutional questions raised are not applicable under the facts and it is, therefore, unnecessary to pay further attention to them.

IV. It is contended by the appellant that the proceedings should have been dismissed as to the railroad company.

The proceedings had in the case were against both the railroad company and Walker D. Hines, Director General of Railroads, who, at the time, was operating said railroad in pursuance of an Act of Congress of March 21, 1918. Section 10 of said act provides as follows :

“That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government.” [Muir v. L. & N. R. Co., 247 Fed. l. c. 896.]

This section clearly authorizes the bringing of suits against the carrier, either at law or in equity, and the rendition of judgments therein, and prohibits the carrier from making the defense thereto that it is an instrumentality or agency of the Federal Government, and it is manifest that the exceptions mentioned therein have no application here.

The order is a continuing one until lawfully changed and, in my judgment, would apply to the railroad company. In the case of Publ. Serv. Comm. v. St. Louis, I. M. & S. Ry. and B. F. Bush, its receiver, and St. Louis-San Francisco Railroad Co., and James W. Lusk et al., its receivers, 218 S. W. (Mo.) 310, an order went against each company and its receivers. The appellants were the successors in each instance of the receivers, and it was held that both companies were bound by the order of the Commission.

This court will take judicial notice that the wartime Federal control of railroads terminated in the first part of the year 1920, and the roads which had, in fact during the entire time, been operated for the corporation by the Director General, were turned back to the corporations.

It would be an intolerable situation if, because the St. Louis-San Francisco Railroad was being temporarily operated by the Director General, no judgment could be rendered against it and when the Government operation terminated the corporation would not be bound by the order made. We do not think such situation is justified, under the facts of this case, or under the law, and we, therefore, overrule the contention.

The judgment of the court below sustaining the order of the Commission should be affirmed. It is so ordered.

Bailey and White, CC., concur.

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

Seeborn, Special Judge, James T. Blair, C. J., and Graves and Walker, JJ., concur; Woodson, Higbee and Elder, JJ., dissent; David E. Blair, J., not sitting.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    MARY E. COOK et al. v. WILLIAM HIGGINS, Appellant.
    In Banc,
    November 30, 1921.
    1. WILL: Intention: Family Secrets. If not violative of some established rule of law, the intention of the testator must be gathered from the four corners of the will, and fully effectuated. And in determining whether the will gave to testator’s wife an absolute estate or a life estate with pWer of disposition for her own support, with remainder over to his children to so much of the estate as was not disposed of by her during her lifetime, the court will enter the family circle and read the secrets of testator’s heart as his will discloses them.
    2.-: -: Absolute or Life Estate: Power of Disposition. By his will testator gave to his wife all his property, both real and personal, "to have full control, to sell and dispose of it as she. may see fit, giving her the right to make deeds to all or any of the real estate of which I may be possessed at the time of my death, and after my wife’s death whatever may remain unexpended I desire to be divided” among a son and daughter and her children, giving to the son one thousand dollars if that "amount of money is left” and if "that much is not left then all money under that amount is to be given to said son,” and "after the above amount is taken out of the estate the remainder left to be divided” equally between his only daughter and her nine children. Held, that, in construing the will the court will consider the fact that testator and his wife lived alone on a farm of one hundred and fifty acres, that his wife was paralyzed and unable to walk, that his only son was an imbecile and his only daughter was married to an invalid by whom she had nine children, and that mindful of the unfortunate physical condition of his wife he undertook to provide for her declining years, and with these facts in mind it is ruled that he clearly intended that the wife should have an estate for life in both real and personal property, with power to sell all or any part thereof, and with remainder over after her death to the legatees named.
    3. -: Life Estate: Power of Disposition: Gift or Devise. Where the will gave to testator’s wife all his real and personal property, with power to control, sell and dispose of it as she saw fit, "and after my wife’s death whatever may remain unexpended” .was given to a son and a daughter and her children, thereby giving to the wife a life estate, with power to sell, and remainders over to the children, the wife was not given power to convey the property as a gift without consideration, but the power of disposition invested in her covered only sales or transfers for her personal uses, comfort and enjoyment, and did not include gifts by deed or will.
    4. -: -:-: Necessity: Unexhausted Personalty. Where the personal property of the estate is sufficient to comfortably support the widow, who by the will is given a life estate with power to dispose of the real estate, with remainder over, no sale of real estate is contemplated until the personalty is exhausted, and a sale by her prior thereto cannot be sustained. But by this is not meant that the life tenant should be in condition of immediate want, but in order to sustain a conveyance of the real estate it should appear that the raising of additional money had become reasonably necessary. So that where the will gave to testator’s widow all his personal and real property, with power to sell and dispose of the same as she saw lit, and whatever remained at her death to his children, thereby giving to her a life estate, with power of disposition, with remainder over, a conveyance of ' the home place by the widow shortly before her death, at a time when she had nearly six thousand dollars in bank, as a gift to testator’s nephew, who had bestowed on her no care or attention involving love and affection or ministrations which could not be hired, cannot be sustained as a proper execution-of the power to sell. [Disapproving the majority opinion, and adopting the views of the minority on the point, in Griffin v. Nicholas, 224 Mo. 275.]
    5. CONVEYANCE: To Tenant: Fiduciary Relation. "Where the widow, who had been given power by her husband’s will to sell and dispose of his real estate, had lost the use of her limbs at the age of forty-five years and twenty years before his death in 1912, and thereafter could not walk, but wheeled herself about in a wheel chair, and, her children being married and living elsewhere, entered into a contract with her husband’s nephew by which he was to receive two-thirds and she one-third of all the crops that he might produce on the home place, and she was to board him and -he was to do the chores about the house and farm, perform such duties as she was unable to perform, and generally look after her and the place, and there was established between him and her a relation of intimacy which enabled him, if so disposed, to influence her, he lived in the same house with her for three years, largely looked after her wants. and attended to and assisted her in her business affairs, and because of her physical infirmity she was greatly dependent upon him in practically all things, . which dependence in turn led her to rely upon him and to repose confidence in .him, and however disinterested his attentions and ministrations to her they served to give him a power over her possessed by no one else, a fiduciary relation -existed between him and her, and the validity of a deed conveying to him the home place for the recited consideration of "one dollar and other valuable considerations" must be determined with such fiduciary relation in view.
    6. -: —■-: -: Legal Presumption of Undue Influence. A fiduciary relation between grantor and grantee having been established, the presumption of law follows that the deed was the result of undue influence exereised by the grantee, and the burden is upon him to show that such influence was not exereised. And in deciding the question the court will consider the fact that the grantor was physically infirm, that her suffering from pain was intense, and her resultant weakened mentality about the time the deed was made.
    7. —-: Facts Showing Undue Influence. A feeble woman seventy- ‘ five years of age, paralyzed in her limbs for thirty years, was dependent upon her husband’s nephew, who was young and vigorous, for care and attention; they had lived under the same roof for over three years in close relationship; her mind and will, by reason of her age and long and painful suffering, were unequal to his; fearful of having no one to care for her, she deeded to him her farm, worth from $7,500 to $9,000, upon condition that he live with her, and keep and 'care for her during the few remaining years of hex-life, which condition was the only consideration for the deed, and was not performed; he had continuously urged her to convey the place to him, threatening to abandon it' and her unless she did so; there was testimony that she had previously expressed the intention of deeding him the property if he remained with her and continued to do as well by her as he had done, and that the deed was voluntarily executed as a reward for his good treatment of her in the past and his agreement to care for her in the future; but on the other hand it is undisputed that he had himself carried her to the office of the attorney who drew the deed, and that she at that time had nearly $6,'000 in bank, which was sufficient to support her for several years; that he subsequently received about $4,000 of this money as a gift; and that by these operations he received practically all the estate left by the will of her husband, and the remaindermen, to whom was given by the will what remained of the estate at her death, were cut out. Held, that the deed was' procured, either directly or indirectly, by the undue influence of the grantee.
    8. WITNESS: Competency: One Party Dead. In a suit to set asidq a deed conveying land to defendant, on the ground that it was the result of undue influence exercised by defendant upon the grantor and was without consideration, the defendant, the grantor being dead, is not competent to testify concerning any matters or things occurring prior to the appointment of the administrator of her estate. [Distinguishing Griffin v. Nicholas, 224 Mo. 1. e. 288.]
    Appeal from Jasper Circuit Court. — Hon. Joseph D. Perkins, Judge.
    Affirmed.

      J. H. and W. E. Bailey and Grover C. James for appellant; Deivey & Foulke of counsel.
    (1) Under the will the widow took an absolute fee simple estate in all real estate owned by testator at the time of his death. . Small v. Field, 102 Mo. 104; Both v. Banschenbnsch, 173 Mo. 582; Tisdale v. Prather, 210 Mo. 402; Cornet v. Cornet, 248 Mo. 184; Lemp v. Lemp, 264 Mo. 533; Middleton v. Dudding, 183 S. W..443; Huntington Bealty Co. v. Megaree, 217 S. W. 301. ‘‘Where there is a general devise without any specification of the interest devised, and an absolute power of disposal is conferred by the will, the devisee takes the fee and may dispose of the estate at his or her pleasure.” Green v. Sutton, 50 Mo. 186; Tisdale v. Prather, 210 Mo. 410. (2) If the will is construed as giving Harriett Brown a life estate in the real estate “to have full control, to sell and dispose of it as she may see fit, giving her the right to make deeds to all or any of the real estate,” and not limiting her to the power to dispose of it “for her comfort and support,” she was authorized to sell or dispose of the real estate for any purpose whatever within her discretion. There was no restriction placed upon the manner, mode or object for which she might dispose of the property. Priest v. McFarland, 262 Mo. 236; Dunbar v. Sims, 222 S. W. 839. .(3) Assuming that under the will the widow took only a life estate in the real estate with power to sell and dispose of the same “for her comfort and support,” as alleged in plaintiff’s petition, under the facts in this case, her physical -condition and needs considered, she properly executed the power in making the deed in controversy. Hazel v. Hagan, 47 Mo. 277; Griffin v. Nicholas, 224 Mo. 302, 310; Priest v. McFarland, 262 Mo. 235; Ricketts v. Peoples Bank, 196 S. W. 26; Dunbar v. Sims, 222 S. W. 838. (4) The consideration in.the deed from Harriett Brown to defendant is both valuable and adequate. Cutts v. Young, 147 Mo. 587; Anderson v. Gaines, 156 Mo. 664; Studybaker v. Cofield, 159 Mo. 616; Griffin v. Nicholas, 224 Mo. 310; Lee v. Lee, 258 Mo. 614; Ellis v. McNally, 177 S. W. 659; Bennett v. Ward, 199 S. W. 946; Wells v. Kuhn, 221 S. W. 20. (5) The evidence in this case does not show a fiduciary relationship existing between the grantor and grantee at the time or prior to the execution of the deed in controversy. Therefore, the burden of establishing the fact of undue influence' exercised over grantor rests on those attacking the deed, the plaintiffs, and is not shifted to the defendant. Moreover the evidence overwhelmingly shows that there was no undue influence exercised by the granted or anyone else in obtaining the deed. Studybaker v. Cofield, 159 Mo. 614; Griffin v. Nicholas, 224 Mo. 292; Lee v. Lee, 258 Mo. 613; McFarland v. Brown, 193 S. W. 800; Bennett v. Ward, 199 S. W. 945; Sinnett v. Sinnett, 201 S. W. 887; Wells v. Kuhn, 221 S. W. 19; Hamlet v. McMillin, 223 S. W. 1069. (6) The plaintiffs had the burden of proof as to the want of mental capacity of Harriett Brown to execute the deed in controversy. Chadwell v. Reed, 198 Mo. 379; McFarland v. Brown, 193 S. W. 804. The greater weight of the evidence conclusively shows that the grantor undoubted•ly had sufficient mental capacity to make the deed. Cutts v. Young, 147 Mo. 587; Lee v. Lee, 258 Mo. 611, 612; Ellis v. McNally, 177 S. W. 654; McFarland v. Brown, 193 S. W. 800; Hahn v. Hammerstein, 198 S. W. 833; Bennett v. Ward, 199 S. W. 947; Sinnett’v. Sinnett, .201 S. W. 887; Messer v. Heefer, 212 S. W. 897; Wigginton v. Burns, 216 S. W. 756; Hamlet v. McMillin, 223 S. W. 1069. (7) The court erred in ruling that the defendant could only testify as to transactions occurring subsequent to the appointment of an administrator on the estate of Harriett Brown, deceased, and also erred in refusing to permit defendant to testify in rebuttal of evidence admitted through plaintiffs’ witnesses concerning alleged matters of inducement leading up to the execution of the deed. Griffin v. Nicholas, 224 Mo. 288.

      Phil. Callery, F. B. Wheeler and Howard Gray for respondents.
    (1) Under the will the widow took a life estate with power to sell and dispose of it, with the remainder to the children and grandchildren named in the will. Harbison v. James, 90 Mo. 411; McMillan v. Farrow, 141 Mo. 55; Gibson v. Gibson, 239 Mo. 490; Burnett v. Burnett, 244 Mo. 491; Trigg v. Trigg, 192 S. W. 1011; Walton v. Drumtra, 152 Mo. 489. (2) The appellant’s second point is that even though the court should find that Mrs. Brown only took a life estate under her husband’s will, as she was given the power to sell and dispose of the property, she could do so in any way she saw fit, even to giving it away and it was nobody’s business. This is not the law in this State. Garland v. Smith, 164 Mo. 1; Tallent v. Fitzpatrick, 253 Mo. 10; Underwood v. Cave, 176 Mo. 1. (3) In answering appellant’s- fourth point we agree with his attorneys in so much of the statement therein that declares the principle,' that, if Harriett Brown took a life estate with the power to sell and dispose of the property, she had a right, if acting in good faith and without undue influence being exercised, to sell and convey the property. The authorities cited by appellant under that point go no further. But so much of the statement that declares that under the facts and law Mrs. Brown’s physical condition and needs were such at the time she executed the deed that it was properly executed, we deny. The only ease cited by the appellant that discusses this question is Griffin v. Nicholas, decided by this court, four judges concurring and three dissenting, and we submit with confidence that, change the facts in the Griffin case to correspond with the facts in this case, and the dissenting opinion would have had the unanimous endorsement of all the members of the court. (4) Whether the court finds that under the will the widow took a life estate or an absolute fee, the judgment was for the right party in any event. The only reason for discussing the character of the estate she held is to show that when she'made her deed she labored under the idea that she was sole legatee because she so states in her deed, and furthermore if she only had a life estate, then in making the conveyance, the question of good faith toward the remaindermen heretofore discussed in this brief becomes material. Was there a confidential relation between Mrs. Brown and the appellant? Jones v. Belshe. 238 Mo. 524; Smith v. Williams, 221 S. W. 360; Byrne v. Byrne, 250 Mo. 632; McClure v. Lewis, 72 Mo. 314; Mowry v. Norman, 204 Mo. 173; Ennis v. Burnham, 159 Mo. 494; Street v. Gross, 62 Mo. 226; Cornet v. Cornet, 248 Mo. 234 ;■ Price v. Meade, 207 S. W. 695; McNatt v. McNatt, 93 Atl. 367; Johnston v. Stonestreet, 66 S. W. 621. (5) The confidential relation having been established, the burden is upon the defendant to satisfy the court by the clearest evidence, not only that no advantage was taken of the old lady, but that the- contract was fair, equitable and for an adequate consideration. Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Ennis v. Burnham, 159 Mo. 494; Mowry v. Norman, 204 Mo. 173; Smith v. Williams, 221 S. W. 360; Sittig v. Kersting, 223 S. W. 742; Kincer v. Kincer, 246 Mo. 437; Gay v. Gillian, 92 Mo. 263; Cornet v. Cornet, 248 Mo. 234; Gross v. Courtley, 170 S. W. 600; Brown v. Slaton, 189 S. W. 1130; Kelley v. Fields, 181 S. W. 657; Price v. Meade, 207 S. W. 695; Noban v. Shoup, 137 N. W. 77; Adams v. Luce, 170 N. Y. Supp. 172. (6) In determining this question the court must also take into consideration the fact that the conract is between the principal and his agent or stranger instead of a parent and child. McKissoek v, Groom, 148 Mo. 459; Jones v. Belshe, 238 Mo. 543. (7) The testimony shows that Mrs. Brown had other children and that one of them was incapable of supporting himself on account of unsound mind, and that she was on the friendliest terms with him, and that he visited her almost daily. The fact that she cut him out in deeding her property to the defendant is a strong evidence of the undue influence. Gray v. Gillian, 92 Mo. 251; Price v. Meade, 207 S. W. 695; Gross v. Courtley, 170 S. W. 600; Kelley v. Fields, 181 S. W. 659; Adams v. Luce, 170 N. Y. Supp. 172; Noban v. Shoup, 137 N. W. 75. (8) Inadequacy of consideration where the parties are not on equal terms is a badge of fraud. Brown v. Slaton, 189 S. W. 1130; Ennis v. Burnham, 159 Mo. 494; Dowell v. Edwards, 161 S. W. 534; Mott v. Mott, 22 Atl. 997. (9) There was no reason for making the deed as the old lady’s income was sufficient to meet her every demand. Kelley v. Fields, 181 S. W. 659; Wash v. Harky, 69 Atl. 726; Allen v. Levand, 107 N. E. 570; McNatt v. McNatt, 93 Atl. 367.
   ELDER, J.

This is a suit in equity to set aside a deed to 150 acres of land in Jasper County, Missouri, executed by Harriett Brown, now deceased, to' William Higgins, defendant, appellant herein, and seeking to have title to said land vested in plaintiffs, respondents herein. The bill, which was not challenged, alleges in part that the deed was procured by appellant while Harriett Brown was “aged and infirm and unable to take care of herself in business transactions and unable to transact ordinary business affairs, and at a time when she was easily influenced and at a time when defendant was living with her and was her manager and agent, . . . without consideration and at a time when he knew that she had but a few days to live.” The answer admitted the execution of the deed, but denied all other allegations contained in the bill.

The land in question, valued at between $7,500 and $9,000, was owned by one Richard Brown, who, with hi» wife, the sáid Harriett Brown, had lived on the same as their home place for many years. Richard Brown died testate in Jasper County, Missouri, on August 29, 1912, leaving surviving him his wife and two children, a son, James Brown, an epileptic and imbecile, who was married and lived on a farm near by, and a daughter, Mary Elizabeth Cook, who with her invalid husband and nine children lived across the state line in Kansas, nine miles from the Richard Brown place. James Brown, the son, died in November, 1917. Three of the children of Mary Elizabeth Cook died before the trial of the suit. William Higgins, the appellant, is about thirty-six years of age, is a nephew of Richard Brown, and had lived on the Brown farm with Harriett Brown, as a tenant, from about a year after her husband’s death up until the time of her demise. Harriett Brown, the widow of Richard Brown, had lost the use of her lower limbs at the age of about forty-five years, or twenty years before her husband’s death, and thereafter could not walk, but wheeled herself about in a wheel chair. The terms of appellant’s rental from Mrs. Brown were that he was to receive two-thirds of all crops that he might raise upon the place, and Mrs. Brown one-third; that Mrs. Brown was to board him, that he was to do the chores about the house and farm, perform such duties as Mrs. Brown was unable to perform, and generally look after her and the place. The uncontroverted testimony shows that when appellant entered into this arrangement he had practically nothing, but that during the time he remained with Mrs. Brown he acquired a threshing machine, which he operated through the surrounding country, and a saw mill; that Mrs. Brown furnished the provisions for the home; that she paid for the family washing, including the clothes of appellant; and that when a nurse was needed she paid her. While Mrs. Brown was able to wheel her chair around the place, do much of the housework, and cook the meals,' appellant at times assisted her in these thing. The evidence tends to show that during appellant’s tern ancy on the Brown farm he looked after Mrs. Brown’s business affairs, waited upon her, and attended to those things about the place which she was unable to do. It also discloses that during the latter part oí his tenancy he grew somewhat neglectful of her, remained away from the farm for days and nights at a time, compelling her to secure help to look after the stock, and that during the last three years, in threshing season, he was away much of the time with his threshing machine, doing threshing for others.

From December, 1916, on, Mrs. Brown suffered severe pain in her head and spine almost continuously. There was testimony to the effect that by reason of her suffering, her mind became weakened and that she was unfit to transact business. This was controverted by the testimony of other witnesses. There was also testimony to the effect that she complained that appellant was endeavoring to secure a deed to her place. To offset this there was evidence adduced on behalf of appellant to the effect that she had expressed the intention that if appellant continued to take care of her as he had been doing she would deed the farm to him.

On January 9, 1917, Mrs. Brown was taken by appellant to the office of an attorney at Carthage, Missouri, who drew the deed conveying the Brown farm to appellant. The deed is an ordinary warranty deed, containing a covenant of general warranty, made by “Harriett Brown (widow and sole devisee under the last will of Richard Brown, deceased),” with a recited consideration of ‘ ‘ one dollar and other valuable considerations, ’ ’ and containing the following reservation:

“The said party of the first part hereby reserves unto herself all the rents and profits derived from said farm for and during her natural life, and it is made incumbent upon said party of the second part to live with the said party of the first part, upon said farm, and to keep and care for her for and during her natural life, and if at any time the said party of the second part fails and refuses to live with the said party of the first part and care for her, upon said farm, then the title hereby conveyed to said party of the second part will revert to the said party of the first part.”

About March 10, 1917, Mrs. Brown was taken, to a hospital in Pittsburg, Kansas, and, on March 7th, before going, she endorsed and delivered to appellant a certificate of deposit for $5,974.53, previously issued to her by the First National Bank of Pittsburg, Kansas. The appellant took this certificate to the bank at Pittsburg and left it there for safekeeping. After remaining at the hospital for about a week Mrs. Brown was brought back to the farm, where she died on April 2, 1917, she being then over seventy-five years of age. The Probate Court of Jasper County, Missouri, placed her estate in the hands of the public administrator of that county, who, on April 7th, went to Pittsburg, Kansas, and demanded of the bank there the money represented by the above mentioned certificate of deposit. The banker, after consulting with appellant, notified the public administrator.that they held no funds belonging to Mrs. Brown. On this same day, however, appellant withdrew the $5,974.53 represented by the certificate of deposit from the bank and gave the public administrator $2,000 in cash, saying that he did so pursuant to the request of Mrs. Brown made at the time she delivered the certificate to him on March 7, 1917. Appellant further told the administrator that $1,000 of the $2,000 given him was for the guardian of James Brown, the imbecile son of Bichard and Harriett Brown, that being the amount of a legacy bequeathed him under the will of Bichard Brown, and that the remaining $1,000 was to go into the estate of Harriett Brown. The .balance of $3,974.53 was retained by appellant.

The testimony further shows that during the latter part of the year 1915 Mrs. Brown purchased an Overland automobile, costing $900, which appears to have been claimed by appellant after her death.

In addition to the land in controversy, the evidence tends to show that Bichard Brown died possessed of about $7,000 in cash, some farm machinery and a few horses and cows.

The respondents herein are Mary Elizabeth Cook, daughter of Harriett and Richard Brown, and sis of her children, named as residuary legatees in the will of Richard Brown. The trial court found that the deed in question was obtained by appellant while he was living with Harriett Brown, “at a time when he was looking after her business affairs and assisting in taking care of her, and at a time when she was feeble, and without any adequate consideration and through the undue influence of the said defendant.” Pursuant to this finding the court below entered a decree for respondents, setting aside the deed to William Higgins and vesting title in respondents to the land conveyed thereby. Prom this judgment and decree defendant appeals.

In addition to the facts above set forth, the material testimony adduced by the parties in support of their respective contentions will be referred to and set out in the opinion in discussing the questions presented for review.

I. The first point made for appellant is that under the will of Richard Brown, his widow, Harriett Brown, took an absolute fee simple estate in all real estate owned by the testator at the time of his death, while respondents contended that she took a life estate with Power to sell and dispose of.the same, with remainder to the children and grandchildren named in the will. The learned counsel for both appellant and respondents stress this phase of the case and have briefed their respective contentions in a manner indicating assiduous research. We are constrained to believe, however, that the construction of the will of Richard Brown is but incidental to the real issues in the case, which are more largely questions relating to the alleged fiduciary relationship existing between Mrs. Brown and appellant and the undue influence said to have been exercised by him. But, as the intention of Richard Brown, as gathered from his will, is primarily decisive of the character of estate given Mrs. Brown, and' as the other questions involved are somewhat dependent upon the nature of that estate, we shall pass to a consideration of the provisions of the said will. It reads as follows:

“I, Richard Brown of Jasper County, Missouri, being of sound mind and memory do make, publish and declare this to be my last will and testament to-wit: first of all my funeral and just debts to be paid. Second, I give, devise and bequeath to my beloved wife, Harriett Brown, all of my property both personal and real estate to have full control, to sell and dispose of it as she may see fit giving her the right to make deeds to all or any of the real estate that I may be possessed of at my death and after my wife’s death, whatever as may remain unexpended I do desire to be divided as follows:
“First, I give to my son, James Brown $1000.00 in money if there is that amount of money left; if not that much left then all money under that amount to be given to said son. And after the above amount has been taken out of the estate, the remainder left to be divided equal share and share alike between my daughter, Mary Elizabeth Cook and her children, Walter Cook, Oscar Cook, Henry Cook", Ola Cook, Irl Cook, Lula Cook, McKinley Cook, Teddy Cook and Frank Cook, deducting from Oscar Cook’s amount $250.00 dollars. He having already received that amount from the estate.
“My son, James Brown, being of unsound mind, I appoint Walter Cook, as his guardian to look after the property left to him from my estate to be used only for his benefit alone and if any money left at the death of said James Brown, to be divided equal between my daughter, Mary Elizabeth Cook and her children as named hereinbefore. I hereby constitute and appoint my said wife, Harriett Brown to be the executrix of-this, my last will and testament revoking all former wills by me made.
“In Witness whereof, I have hereunto set my hand and seal this 13th day of Sept., A. D. 1909.
“(Seal) Richard Brown.”

As is well settled, if not violative of some established rule of law, the intention of the testator must be gathered from the four corners of the instrument, and fully effectuated. [Grace v. Perry, 197 Mo. l. c. 559; Brooks v. Brooks, 187 Mo. 476; Cross v. Hoch, 149 Mo. 325; R. S. 1919, sec. 555.] As was said by Marshall, J., in Cross v. Hoch, 149 Mo. l. c. 338, 339:. “We must seek admittance into the family circle and learn the relations and feelings of the testator towards each of the beneficiaries of his bounty. We must read the secrets of his heart as his last will discloses them.” Applying this rule to-the facts disclosed by the record, coupled with the language used in the will before us, we find Richard Brown and Harriett Brown at the time the will was made,. living alone on the farm in controversy, their two children having married and having families of their own. Harriett Brown, the wife, was paralyzed and unable to walk. James Brown, the son, was an imbecile. Mary Elizabeth Cook, the daughter, had an invalid husband and nine children. Mindful of the unfortunate physical condition of his wife, Richard Brown undertook to so provide for her that she might be fully cared for in her declining years. His first consideration was for her, and to the end of amply providing for her he gave her full control of his estate, both real and personal, with power to sell the real estate and execute deeds thereto. Having thus made provision for her, he next remembered his unfortunate son, James, appointed a guardian for him and bequeathed him $1,000 out of such sum as might remain unused by the wife. Not forgetful of his daughter, he made provision for her and her nine children by bequeathing them whatever remained over and above the legacy given James. In all the will is a natural one, such as any man would ordinarily make under similar circumstances. It breathes the spirit of righteousness. But that the testator only intended to create a life interest in the wife, with power of disposition, is manifest from the concluding sentence of the first paragraph, which reads: “and after my wife’s death, whatever as may remain unexpended I do desire to he divided as follows. ’ ’ While the life estate is not expressly declared, by implication from the devises over and the objects of the will, it mnst be deduced. Accordingly, an examination of the phraseology of the entire will, as well as a careful consideration of the authorities cited by both appellant and respondents, leads us to conclude that Richard Brown clearly intended that his wife should have an estate for life in both his real and personal property, with power.to sell all or any part thereof, and with a remainder over at her death to the legatees named in the will. We predicate this conclusion upon the analogous case of Guthrie v. Crews, 286 Mo. 438, and authorities therein cited. And from the adjudicated cases we are equally convinced that such intent and purpose transgresses no rule of law.

II. Appellant’s second contention is that even though Mrs. Brown took only a life estate under her husband’s will, she was authorized to sell or dispose of the real estate for any purpose within her discretion, without restriction as to the manner, mode or object of such disposition. To sustain this contention appellant cites Priest v. McFarland, 262 Mo. l. c. 236, and Dunbar v. Sims, 222 S. W. l. c. 839. The Priest case is to be distinguished from the case at bar in this, to-wit: In that case the evidence tended to show that two children of the deceased, who were grantees under a deed made by the widow, with the reservation of a life estate, had paid a consideration of $6,000 ip cash, had accounted to their mother for rents accruing from the property and had provided her with support and maintenance until her death, while in this case the expressed consideration for the deed under consideration was “one dollar and other valuable considerations,” with no showing of any further consideration outside of the agreement of appellant to keep and care for Harriett Brown, which was not proven to have been carried out. And, to offset the latter consideration, the evidence is uncontroverted that appellant was supported by Mrs. Brown and received from her approximately $4,000 in cash, in addition to a favorable contract of tenancy. The Priest case was decided en banc, by a divided opinion of four to three, with Brown, J., who concurred in the result, stating: “I am, however, convinced that the widow was not authorized by the will to give away the land of the testator” (Italics ours), which would seem to be the practical result in the instant case, were the deed to defendant to be sustained. The case of Dunbar v. Sims, supra, is not in point.

To concur in appellant’s view, it would be necqssary. to construe the will as giving Mrs. Brown the power of absolute and unlimited conveyance by sale, gift, testamentary disposition, or other method of transfer, or, in effect, an absolute estate in fee simple, which we have just said was not the intention- of the testator. This is not our conception of the purpose and object of the testator or of the law applicable to the case. In Tallent v. Fitzpatrick, 253 Mo. 10, where the will of the deceased created a life estate in the testator’s wife and a remainder in his children, “with full power” in her'“to sell at any time any or all of my real estate and convey the same by good and lawful deeds of conveyance at any time she may think best,,and to her best interest,” the widow executed deeds to each of two of the children, with a recited consideration of $1,000. The evidence showed that no part of the consideration was paid, but did show that the daughter, one of the grantees, rendered care and assistance to her mother while she lived and surrendered a $300 note executed to her husband by her father; the evidence also showed, as to the son, the other grantee, that after his father’s death he gave his mother $200 and paid the father’s funeral expenses and medical bills, as well as having rendered him some financial assistance during his lifetime. A judgment annulling the two deeds was affirmed by this court upon the ground that the power of sale given the wife did not authorize her to give the property to one or more of her children, to the exclusion of the others, nor to convey the same in satisfaction of some vagne, uncertain and unprobated claims against the father’s estate. Bond, J., in construing the will, said, on pages 16 and 18, that “the life tenant was restricted to a sale and conveyance in pursuance thereof in the proper and legal sense of the term, and she had no power to defeat the remainders by any other form of alienation. . . . It is evident that these transactions did not in any fair and just sense meet the requirements of a sale of the property which the widow was authorized to make under the will.”

In another case where the devising clause read, “I give, devise and bequeath the residue of my estate to my said sister Sarah and it is my desire that whatever of said residue may be left undisposed of at her death shall go to her descendants per stirpes. In the event that I survive my said sister Sarah, I give, devise and bequeath said residue of my estate to her children,” etc., the court said: “We think from the terms of the will, the relationship of the parties, and in accordance with the foregoing principles of law, the testatrix by that instrument gave a life estate to her sister with full power to dispose of the property for her use, comfort or enjoyment, or any other purpose incident to these ends, but with no power to give it or will it away; for if these powers had been donated, the life estate would have been transformed into an absolute estate and the plain purpose of the testatrix to give the property left at the expiration of the life estate to the persons named in the devise over would have been set at naught.” (Italics ours). [Burnet v. Burnet, 244 Mo. 491, l. c. 506.]

In another case under a deed conveying land to a trustee for the sole and separate use and benefit of the grantor’s wife for and during her natural life, with power in the wife “to séll, mortgage, encumber, lease or otherwise dispose of the same to such persons and for such, uses and purposes as she may at any time by writing by her signed, direct and appoint,” it was held that the power- of appointment given the wife did not create in her power to give the land away during her life, either to her foster son by deed or to ány other person or in any way, nor did the words “or otherwise dispose of” enlarge the power of appointment so as to include a gift of the property. [Garland v. Smith, 164 Mo. 1.]

Upon authority of the principles to be extracted from these cases, when considered in conjunction with the relationship of the parties and their condition in life, we hold that the power of disposition given Mrs., Brown covered only sales or transfers for her personal uses, comfort and enjoyment and did not include gifts by deed or will. This construction harmonizes with the evident intention of Richard Brown and at the same time-preserves and subserves the rights of the remaindermen named in the will. To hold as appellant urges would transform the life estate of Mrs. Brown into an absolute estate in fee, thereby defeating the intention of the testator and the limitations over.

III. Appellant next contends that even though Harriett Brown took only an estate for life, with power to sell and dispose of the same for her comfort and support, under the facts in the case, her physical condition and needs considered, she properly executed the power in making the deed in controversy. To sustain this point appellant cites several cases, among them, Priest v. McFarland, 262 Mo. l. c. 235, which has hereinbefore been distinguished from the case at bar. Hazel v. Hagan, 47 Mo. 277, and Dunbar v. Sims, 222 S. W. 838, also cited, are beside the issue. Ricketts v. People’s Bank, 196 S. W. 26, is distinguishable, as in that case neither the questions of fiduciary relationship or undue influence, nor any question of physical condition or need was involved. This leaves for consideration only the case of Griffin v. Nicholas, 224 Mo. 275, l. c. 302, 310, relied upon by appellant. While there is some similarity of facts in that case with the one under review, nevertheless, there is the distinction that there no undue influence was shown to have been exerted in obtaining the deed in question, and no confidential relation existed between the parties, as appears here. Moreover, the undisputed evidence here shows that Mrs. Brown, at the time of her death, had on hand, represented by a certificate of deposit, the sum of $5,974.53 in cash, an amount ordinarily sufficient to have comfortably supported and maintained her, including the hire of a nurse or servant to minister to her. Appellant, who was not even a blood relative, was not shown to have any particular fondness for her, or any aptitude or training for nursing, and it cannot therefore be argued, as was in the Griffin case, that the care and attention which he bestowed upon her was of a character or kind involving the elements of love and affection, or ministrations which could not be hired.

The Griffin case, supra, was a decision en banc, by a divided opinion of four to three. A dissenting opinion was delivered by Lamm, J., l. c. 312 et seq., in which Woodson, and Graves, JJ., concurred. The clause of the will there which is pertinent to the particular question now under consideration provided: “I give and bequeath all the balance and residue of my estate to my wife, Rosanna Burlingame, to have and to hold and enjoy for and during her natural life, with full power to malte such disposition thereof as may be necessary for her comfort and support.” (Italic ours.) The majority opinion of the court, per Vahliant, C. J., held that the power to sell rested in the discretion of Mrs. Burlingame, the court saying on that point, l. c. 309, 310: “We do not mean to say that if she was recklessly or fraudulently wasting the estate the court could not interpose to restrain her, but until a showing is made to justify the chancellor in laying his hands on her the disposal of the property is in her discretion.” Contra, the minority opinion held that the power to sell hinged upon the necessity of a conveyance for Mrs. Burlingame’s comfort and support, such power being based upon whether a sale was reasonably necessary. In considering that feature, Lamm, J., said at pages 336, 338: “In some cases the intent of the testator, gathered from his language, puts the right of decision solely in the widow and she is given directly or by implication uncontrolled judgment and discretion. But the use of such langmage in this will is industriously avoided and testator left the power of disposition to hinge upon the existence of a fact, vis., the necessity for her own comfort and support, not that she might deem it so or want it so for by-ends. . . . The comfort and support mentioned did not mean fanciful conceits, whims or extravagances. The words import a reference to her needs and manner of living. Whether the contingency actually happened which would uphold the conveyance, became, therefore, a matter of judicial determination upon the evidence. That evidence has been set forth at such length as to preclude any necessity of repetition, and we on-nounce our conclusion to be that the contingency did not happen, ergo, the deed cannot stand. . . . We do not hold that under her husband’s will the widow.was compelled to go into court for power to sell. . . . She had power to sell under the will. But her power was coupled with a limitation and must be based on the existence of a fact, to-wit, that the sale was reasonably necessary for her comfort and support.. We find the fact to the contrary.” With the minority view as above set forth we agree, and, in that particular, we think the majority opinion in Griffin v. Nicholas, supra, should be disapproved. Accordingly, applying to the instant case the principle which seems to us to be the correct one, we are constrained to hold, upon all the evidence in the case, the financial status and physical condition and needs of Harriett Brown considered, that a conveyance to appellant of the land in question was not reasonably necessary for the comfort and support of Mrs. Brown, a limitation which was by implication coupled with the power of sale given her, and the deed in issue should not be upheld on that ground. [Scheidt v. Crecelius, 94 Mo. 322; Hull v. Culver, 34 Conn. 403.]

It seems to us that the doctrine which should be applicable under the particular conditions here is: That where the personal property of the estate is’ sufficient to comfortably support the widow, who by will is given a life estate with power to dispose of real estate, and with a remainder over, no sale of the real estate is contemplated until the personalty is exhausted, and a conveyance thereof by her prior thereto cannot be supported. By this we do not mean that the life tenants should be in a condition of immediate want, but it should appear that the raising of additional money had become reasonably necessary. And as giving countenance to this doctrine we find authority in Hull v. Culver, 34 Conn. 403; Morford v. Dieffenbacker, 54 Mich. 593; Parks’ Admr. v. Missionary Society, 62 Vt. 19, and Minot v. Prescott, 14 Mass. 496.

IV. It is next contended by appellant that there was no fiduciary relationship existing between him and Mrs. Brown at the time of or prior to the execution of the deed in controversy, as argued by respondents, and that there was no undue influence exercised in obtaining the deed, as charged by respondents. These questions seems to us to transcend in importance practically all others presented in the comprehensive briefs of counsel and a proper consideration thereof calls for a review of the evidence in the case bearing thereon.

The testimony shows that appellant lived in the house with Mrs. Brown, assisted her in various ways as has been hereinbefore mentioned, waited upon her at times at night, aided her in transacting her business at the bank at Asbury, Missouri, made out her checks, took her to town frequently and ássisted her in selling poultry, butter, eggs, etc., and looked after the work on the farm. The entire evidence tends to show that she relied largely upon appellant to take care of her and had confidence in him.

From the latter part of 1916 up until the time of her death Mrs. Brown suffered much pain and gradually became more feeble. In December, 1916, being ill, she employed Miss Amy E. Currey, a nurse, who remained with her about a month. Miss Currey testified on behalf of respondents, that Mrs. Brown suffered constant pain, so much so that her mind “wasn’t strong;” that she frequently talked of ending her life because of the pain; that she told her that appellant come to her (Mrs. Brown) poor, but that “after he got fixed up he neglected and didn’t care for me;” that Mrs. Brown on several ocassions stated that appellant contracted personal debts which she had to pay; that while she was at the Brown home appellant was gone the greater part of the time and that Mrs. Brown complained of being left alone, especially at night; that frequently appellant and Mrs. Brown would go into another room, appellant closing the door, and hold a conversation, after which Mrs. Brown would tell her (Miss Currey) that appellant was after her to deed him her home, Mrs. Brown saying, “I will not do it. He is constantly after me to do it and he will leave me unless I sign this deed over;” that more than once appellant said to her (Miss Currey) that “Auntie” (referring to Mrs. Brown) “has promised to deed her place to me and if she don’t sign up I will not stay;” and that appellant objected to the children of Mary Elizabeth Cook, the daughter, coming to visit Mrs. Brown and to her giving James Brown, the son, any money.

Dr. Coleman, a physician who visted Mrs. Brown professionally on January 30; 1916, November 3, 1916, January 16, 1917, and March 20, 1917, testified, for respondents, that in January, 1916, “owing to the long siege she had had with this paralytic condition” he did not consider Mrs. Brown “capable of transacting any business;” that when he called on her on January 17, 1917, he condition “was very bad,” that she was in constant misery with pain in her back and spine, that it was necessary to “give her something so she might have rest day or night,” that her mental condition was “very had” and that he did not then consider her “capable of transacting any business at all.”

Mrs. James Brown, widow of the epileptic son here-inbefore mentioned, testified that she had visited Harriett Brown “most every day” since Richard Brown had died, remaining all day at times; that Mrs. Brown began to decline in health about the middle of December, 1916; that there were “days she didn’t know anything;” that she had seen her “when she was in such agony she didn’t know who she was;” that “one minute she would say she would do so and so, and the next-minute do something else.”

Ola and Oscar Cook, daughter and son of Mary Elizabeth Cook, and two of the plaintiffs herein, testified that in November and December, 1916, and in January, 1917, they had each separately visited Mrs. Brown, their grandmother, at which times she was suffering much pain in her back and head, that she was in constant misery and was at times “out of her head.”

Five witnesses, who had either worked on the Brown farm or had visited at the home, testified for appellant to the effect that Mrs. Brown’s mental condition was good and that she seemed capable of taking care of her affiairs. Dr. Barson, who called on her once at her home “the latter part of 1916” and for about a week in the hospital at Webb City “the first part of 1917,” testified that her physical condition was poor, but that her mental condition “seemed all right” and that as far as he could see “she was perfectly rational.”

A stipulation between counsel as to the testimony which Dr. Herbert Smith, who was at the time of the trial in the service of the United States Government at Ft. Riley, Kansas, would have given if present, showed that he visited Mrs. Brown daily at the hospital at Pittsburg, Kansas, from March 10, 1917, to March 19, 1917, during which time she was “normal and alert mentally and fully understood everything that was transpiring,” but that beginning with March 19th her physical condition grew worse and she “began to show signs of delirium and gradually declined physically and mentally thereafter until her death.”

Mrs. Ida Kendall, a cousin of Mrs. Brown, testified for appellant that some time after appellant Higgins had come to live with Mrs. Brown, he (Higgins) had brought Mrs..Brown to visit her, at which time Mrs. Brown, in the course of conversation, had said that “if Mr. Higgins stayed with her and done as well as he had done, he would get the farm.” A statement to similar effect was also testified to by Minis Kendall, husband of Ida Kendall, by Mrs. Thoda Hunt, who lived three-fourths of a mile from the Brown place and frequently visited Mrs. Brown, and by Harve Smith, who worked for appellant on the Brown farm. The record does not disclose, with any degree of accuracy, just when these statements were made to the several parties testifying thereto.

"With respect to the execution of the deed to appellant the evidence shows that on January 9, 1917, appellant carried Mrs. Brown up to the law office of Mr. J. H. Bailey, an attorney, at Carthage, Missouri, and at that time and place Mr. Bailey drew the deed and read it to her, as she could neither read nor write. The consideration recited in the deed, as has been said, was “one dollar and other valuable considerations.” There was no showing that after the execution of the deed appellant did anything towards beeping or caring for Mrs. Brown, as was contemplated by the clause making it incumbent upon him to do so to maintain the validity and binding effect of the deed. As far as the récord discloses the relations of the parties remained the same as before the deed was made. Guy Wells and W. H. Miller, who were called in by Mr. Bailey to witness the deed, both testified that in their opinion Mrs. Brown seemed capable of looking after her affairs.

While the foregoing evidence shows a sharp conflict as to the condition of Mrs. Brown’s mind in the latter part of 1916 and the Spring of 1917, there remain certain outstanding facts which are not controverted, to-wit: That she was old and feeble, and from December, 1916, on, was in very bad health, suffering severe pain; that she had even spoken of taking her own life because of her suffering; that'she lived in the same house with appellant and depended much upon him to look after her welfare and affairs; and that appellant carried her into the office of the attorney to have the deed to him drawn and executed.

As has been held, it is the duty of this court, in an equity case, to weigh the evidence and reach its own conclusion, after giving due consideration and deference to the conclusion reached by the trial chancellor. [McFarland v. Brown, 193 S. W. 800; Givens v. Ott, 222 Mo. 395; Cohron v. Polk, 252 Mo. l. c. 281.]

(a) In considering the question as to whether or not a fiduciary relationship existed between appellant and Mrs. Brown, we have examined all of the authorities cited by learned counsel for appellant and find, with one exception, that the grantee in the deed attacked was a son, a daughter, a brother, a sister, or some other blood relative of the grantor, and that the conveyance was made out of affection in return for the faithful and loving performance of kind and dutiful attentions. It was never intended that services of that character should be penalized and it is only when these “natural sentiments have been prostrated to unnatural and selfish ends that the law interposes to protect the victim.” [Sinnett v. Sinnett, 201 S. W. l. c. 889.] But in the present inquiry, appellant was no blood relative and the services performed by him were more in the nature of the fulfillment of a contractual obligation which he had incurred in becoming a tenant of Mrs. Brown. There was, however, established between him and Mrs. Brown a relation of intimacy which enabled him, if so disposed, to influence her. He lived in the same house with her, largely looked after her wants and attended to or assisted her in her business affairs. However disinterested his attentions and ministrations may have been, they served to give him a power over Mrs. Brown possessed by no one else. Furthermore, in view of her physical infirmity she was greatly dependent upon him in practically all things, which dependency in turn led her to rely upon him and repose confidence in him. We are accordingly of the opinion, and so hold, that a fiduciary relation .did exist between appellant and Mrs. Brown. [Ennis v. Burnham, 159 Mo. 494; Martin v. Baker, 135 Mo. 495; McClure v. Lewis, 72 Mo. 314; Ryan v. Ryan, 174 Mo. 279; Mowry v. Kettering, 204 Mo. 173; Byrne v. Byrne, 250 Mo. 632.]

(b) A fiduciary relation being established, the presumption of law follows, under the conditions here present, that the deed to appellant was the result of undue influence exercised by him, and the burden devolved upon him to show that such influence was not exercised. [Cornet v. Cornet, 248 Mo. 184; Dingman v. Romine, 141 Mo. 466; Sittig v. Kersting, 223 S. W. 742; McClure v. Lewis, 72 Mo. 314; Mowry v. Norman, 204 Mo. 173; Smith v. Williams, 221 S. W. 360; Ennis v. Burnham, 159 Mo. 494.]

As tending to establish that appellant did not influence Mrs. Brown to make the deed to him there was the testimony of four witnesses to the effect that Mrs. Brown had frequently said that “if Mr. Higgins stayed with her and done as well as he had done, he would get the fárm. ’ ’ W. H. Miller, who witnessed the deed to appellant, also testified on behalf of appellant as follows:

“Q. Were you in the. office when this old lady, was brought in'? A. Yes, sir.
“Q. How was she brought in? A. She was carried in by a young man.
‘ ‘ Q. Do you know this young man ? A. I know him when I see him, yes.
“Q. Were you present and did you hear the conversation had with the old lady at the time the deed was made? A. Yes, sir.
“Q. State as near as yon can recollect what was said by her at the time. A. She said she wanted to deed this property to this young man. He had been good to her and kind to her and she wanted to do that much for him. He had looked after her and was going to look after her for the rest of her days. It was something to that effect.”

To combat this evidence there was the testimony of Miss Currey, the nurse, who had attended Mrs. Brown at her home, as follows:

“Q. I will ask you to state whether or not you ever saw Mr. Higgins and Mrs. Brown — whether they held conversations about the house there. Did they hold conversations about the house? A. Yes, sir; they held conversations, but they went into' another room and shut the door. I heard nothing.
‘ ‘ Q. Who shut the door ? A.. Mr. Higgins.
“Q. State whether or not after these conversations took place, whether Mrs. Brown said anything to you about what the subject of the conversation was she held with Mr. Higgins? A. She called him ‘Willie.’
“Q. Referring to Mr. Higgins? A. Yes, sir; that is his name. Willie was constantly after her to give her home and place to him; deed it to him, and she says, ‘I will not do it. He is constantly after me to do it, and he will leave me unless I sign this deed over. ’
“Q. How often did Mrs. Brown make those statements to you, Miss Currey? A. . It was very often she made those statements; I can’t count the times, because, as I said, she was weak-minded and he was gone so much and left the work it agitated her to some extent. She was very worried with him all the time, because we had to constantly find someone to look after the stock and care for the stock.
“Q. When she would make those statements to you about him wanting her to leave the premises to him, state whether or not it was after they had had these private conferences behind closed doors? A. Yes, sir; it was.'
“Q. That was very often? A. Yes, sir.
“Q. What was the mental condition of Mrs. Brown during this particular period that yon were staying there and when this conversation occurred? A. Her mental condition seemed to he always the same.
“Q. What was that? A. She was suffering such acute pain all the time.
“Q. Was she strong or weak-minded? A. Her mind wasn’t strong. She was what I call a very weakr minded woman. She was hard to please at times. . .
“Q. I will ask you whether or not you ever heard Mr. Higgins threaten to leave there or any conversation relative to him leaving there unless Mrs. Brown did as he wanted her to do? A.# Well, Willie told me if— ‘Auntie’, is what he called her — He said, ‘Auntie has promised to deed her place to me and if she don’t sign up I will not stay.’
“Q. Was that more than once? A. Yes, that was more than once. ’ ’

To he considered in connection with the question confronting us, there was also the testimony for respondents as to the infirm physical condition of Mrs. Brown, her intense suffering from pain, and her resultant weakened mentality, between December, 1916, and the time the deed was executed, as hereinbefore adverted to.

In passing upon the question of undue influence, as was said in Dingman v. Romine, 141 Mo. l. c. 474, 475, "the relationship of the parties to each other, the mental condition of the person whose act is in question, and the character of the transaction, should be taken into consideration. If the relation of confidence and trust between the parties to the transaction exists; if the mind of the one nominally acting is weak and susceptible, and if the transaction results beneficially to the person charged, and detrimentally to the person in whose name the act was done, a presumption of undue influence is raised, and the burden is placed on the one claiming the benefit of the transaction to prove that the act was voluntary and no unfairness was used. Indeed, the presence of the relation of confidence and trust alone is generally sufficient to raise a presumption of undue influence.” And the undue influence need not be proven by direct or positive testimony, but it is sufficient if it is shown by, or can be inferred from, the facts and circumstances in evidence. [Mowry v. Norman, 204 Mo. l. c. 193.] Nor is it required that the influence be exerted at the particular time of the execution of the instrument attacked, but it is sufficient if it be shown that the influence had been acquired previously and operated at the time of the making' of the document. [Mowry v. Norman, supra.]

Applying’ these principles to the case at bar, we find an enfeebled old lady, seventy-five years of age, helpless and depending upon appellant, who was young and vigorous, for care and attention. They had lived under the same roof for over three years in close relationship. Her mind and will, by reason of long suffering and age, were unequal in strength to appellant’s, leaving an inviting field for undue influence. Fearful of having no one to care for her during the last few years of her life, she deeded appellant her farm, upon condition that he live with her, keep and care for her during the remainder of her life, this condition being the only real consideration for the conveyance. From the evidence introduced by plaintiffs it appears that appellant was continually after the old lady to deed him the place, threatening to leave her unless she did so. True, this was in a measure rebutted by testimony for appellant to the effect that she had previously expressed the intention of deeding him the place if he continued to remain with her and do as well as he had done, and that the deed, when executed, was signed voluntarily as a reward for appellant’s good treatment of her in the past and his agreement to care for her in the future. However, when we consider all the evidence in the case — the fact that appellant himself carried Mrs. Brown up to the office of the attorney who drew the deed; that she then had approximately $6,000 in cash, or sufficient, to have supported her for several years; that appellant subsequently received approximately $4,000 of this $6,000 as a gift, leaving her with nothing hut a bare agreement to keep and care for her during the remainder of her life, no part of which agreement appears to have been carried out; that by these operations appellant received practically all of the estate left by Richard Brown and the remaindermen under his will were cut out, we are forced to the conclusion that the deed in question was procured, either directly or indirectly, through the undue influence of appellant. [Martin v. Baker, 135 Mo. 495; Ennis v. Burnham, 159 Mo. 494; McClure v. Lewis, 72 Mo. 314; Dingman v. Romine, 141 Mo. 466; Cadwallader v. West, 48 Mo. 483; Price v. Meade, 207 S. W. 695.] This being true, and being sufficiently decisive to vitiate the deed to appellant, it is unnecessary for us to consider the further questions of adequacy of consideration for the conveyance and mental capacity of Mrs. Brown to make the deed, presented by appellant.

Y. Appellant finally urges that the court erred in limiting the testimony of appellant, individually, to matters and things occurring subsequent to the appointment of the administrator of the estate of Harriett Brown, deceased, and cites the case of Griffin v. Nicholas, 224 Mo. l. c. 288, 289, in support of such contention. In this we are unable to agree. Section 4652, Revised Statutes of 1899 (Sec. 5410, R. S. 1919), upon which the ruling in Griffin v. Nicholas, supra, was based, provides, inter alia, that "in actions where one of the original parties to the contract or cause of action in issue and.on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him." In that case the contract under consideration, which had been executed by a person then deceased, was held not to be in issue, nor the cause of action. The plaintiffs therein were not asking to have the same enforced or performed. The real controversy was over a deed executed by the deceased in pursuance of the contract. Such being the case, the court held that defendants, who were parties to the contract, were not disqualified as witnesses to prove the contract, which was held to be “a mere inducement or circumstance leading up to the deed.” Here, however, there is the distinction that the deed under consideration is the actual matter in issue and as to which there must be a finding. Therefore, the deed being the subject of the cause of action, Mrs. Brown the grantor being dead, and appellant being “the other party” to the cause of action within the meaning of the statute, we are of the opinion that the trial court committed no error in limiting the testimony of appellant to transactions occurring subsequent to the appointment of the administrator of Mrs. Brown’s estate. [Chapman v. Dougherty, 87 Mo. 617; Leeper v. Taylor, 111 Mo. 312; Weiermueller v. Scullin, 203 Mo. 466; Smith v. Smith, 201 Mo. 533, l. c. 547; Goodale v. Evans, 263 Mo. 219, l. c. 229.]

After fully reviewing the entire record, and after having given the usual deference to the conclusions of the trial chancellor, who had a better opportunity to judge as to the credibility of the witnesses and the weight to be given their evidence, we see no good reason to interfere with the result reached. The judgment is accordingly affirmed.

All concur; James T. Blair, C. J., and Walker, J., in paragraphs 4 and 5 and the result, and David E. Blair, J., in paragraphs 1, 4, and 5 and the result.