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    SAMUEL L. RYAN v. J. N. MILLER et al., Appellants.
    Division One,
    July 12, 1911.
    1. FRAUD AND DECEIT: Suit in Equity. An action to rescind a contract for fraud and deceit is one in equity, not one at law.
    2. -: Remedies: At Law and in Equity: Damages. In a case of fraud and deceit, growing out of the sale of certificates of stock in a corporation, based on a belief that the corporation was fraudulently organized and the sale was induced by false representations of the corporation and its agents, plaintiff who bought the stock has two remedies: first, he can stand upon his contract, and sue for the damages growing out of the fraud and deceit practiced upon him in the procurement of the contract; or, second, he can elect to rescind the contract, and sue to have the same canceled and for naught held. Of the two remedies, the first is at law, and the second in equity. The measure of damages is different, and the forum is different. In the action at law, plaintiff can recover the difference between' the full value of the stock sold to him as its value would have been had it measured up to the representations, and its real or actual value. In the action in equity, the court simply places the parties where they were before the vitiated contract was made.

      3. -; Maintenance: Coupling, Suits: Assignment of Right to File Bill in Equity: To Plaintiff by Other Parties of Right to Rescind Contract. Plaintiff, who sues in equity, by an action of fraud and deceit, to hare rescinded and canceled his contract for the purchase of certificates of stock, alleging he was induced by the false and fraudulent representations of the corporation and its agents to buy them, cannot join with his suit an action for other stockholders similarly situated who have not sold their stock to him, but assigned it to him for the sole purpose of permitting and authorizing him to sue in his own name for their benefit. An assignment by others of a mere naked right to file a bill of equity to rescind a contract of the purchase of stock for fraud, is void, is condemned by public policy, and does not authorize the assignee to maintain a suit in his own name for the assignors. The bare right to complain of a fraud is not a vendible chose in action. An assignment of the mere naked right to file a bill in equity to rescind a contract for fraud savors of the character of maintenance.
    4. -: Sale of Corporate Stock: Horse Racing and Betting: Suit to Refund. Where a corporation was organized under the laws of a foreign State for the purpose of purchasing horses and engaging in horse-racing and book-making; where one-half of its capital was paid up in money and horses and issued to the organizers, and plaintiff bought a part of the other half at par, knowing full well the purposes for which the company’s capital was to be used; where the company at first did well in a financial way, and paid not to exceed four per cent dividends per week, until the entire dividend paid stockholders amounted to thirty per cent; where plaintiff retained that dividend, and made no complaint of fraudulent representation until misfortune overtook the company, due to bad tracks, to the horses becoming diseased, and to the public bettors rather than the company’s book-maker picking the winning horses; where there is no proof that the defendant managers of the company appropriated the profits or used the capital to pay dividends; where the material representations of facts in the company’s prospectus and those of its agents, are shown to be true by plaintiff’s own evidence, though that evidence he the depositions of defendant organizers, plaintiff’s suit to rescind the contract of purchase and to recover the difference between what he paid for the stock and the dividends paid, should be dismissed, or nonsuit required.
    5. -: Court of Equity: Gambling Enterprise: Plaintiff’s Knowledge of Fraud. If plaintiff knew that the corporation’s capital was to be used in horse-racing and book-making, and lie bought its stock knowing that fact, he cannot complain, if when the company applied the capital to that purpose, the gambling venture did not turn out to be profitable, but resulted in loss to its organizers and managers, and a court of equity will not hear his prayer to compel them to redeem his stock.
    Appeal from St. Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge.
    Reversed and remanded (with directions).

      Martin L. Glardy, James F. Green, and Henry S. Shaw for appellants.
    (1) Plaintiff cannot question the validity of the incorporation of the Miller Company in this action, and, whether one or more of the incorporators failed to sign the articles, does not affect the validity of the incorporation. Bank v. Rockefeller, 195 Mo. 15; Webb v. Rockefeller, 195 Mo. 57; Haskell v. Worthington, 94 Mo. 560. (2) Nor can plaintiff claim that the Miller Co. was acting outside its charter powers. The question of ultra vires can only be raised by the State. Drug Co. v. Robinson, 81 Mo. 18; Bank v. Trust Co., 187 Mo. 535. And, if the officers of the corporation engaged in gambling, they, did not violate any law of South Dakota or Missouri, since the gambling was done in Louisiana. Further, plaintiff and his asso-. ciates, having accepted the proceeds of the transaction, are in no position to complain. Express Co. v. Reno, 48 Mo. 264; Knapp v. Knapp, 118 Mo. App. 705; Fair Association v. Carmody, 151 Mo. 561; Ullman v. Fair Association, 167 Mo. 273. (3) None but creditors could complain of the value of the property of the corporation, in a proper proceeding against defendants, .as stockholders, for unpaid stock, as property may be subscribed for the stock of a corporation. Vogeler v. Punch, 205 Mo. 573; Woolfolk v. January, 131 Mo. 620; Van Cleve v. Berkey, 143 Mo. 109. (4) Whenever property of any kinds depends for its value upon contingencies, opinions as to its value must necessarily be of a speculative character, and no action will lie for mere expressions or opinions as to value. Brown v. Zinc Co., 231 Mo. 166; Wilson v. Jackson, 167 Mo. 135; Cornwall v.' Real Estate Co., 150 Mo. 377; Gordon v. Butler, 105 U. S. 553; Holbrook v. Connor, 60 Mo. 578; Barnard v. Coffin, 138 Mass. 37; 1 Bigelow on Torts, 472; Harrison v. Walden, 89 Mo. App. 164. (5) The assignment of the stock certificates to plaintiff Ryan is void. No consideration was paid for the certificates, and the only purpose of the assignment was to enable plaintiff to maintain this suit. Wilson v. Railroad, 120 Mo. 58; Haseltine v. Smith, 154 Mo. 412.

      Kinealy & Kinealy for respondents.
    (1) The plaintiff and other purchasers of any of the 25,000 shares of stock acquired by Miller and Givens, and which plaintiff and other purchasers were induced to purchase from defendants by fraud and fraudulent pretenses, of defendants, may recover the money paid for that stock and not returned, by an action at law in the nature of assumpsit. 8 Ency. PI. & Pr. 887. (2) The purchaser of any of the 11,000 shares sold which had not been previously issued or subscribed'for, and who had been induced to purchase them by fraud and false representations of the defendants, may recover the money paid by him, from defendants, if the corporation was created under circumstances that made its incorporation a fraud on the State of South Dakota, in which it was incorporated, and on the State of Missouri, in which it did business and was in fact intended to act, because it is not a corporation in Missouri. Hobbs v. Boatright,' 195 Mo. 693; State ex rel. v. Cook, 181 Mo. 610;' Davidson v. Hobson, 59 Mo. App. 130; Oleaton v. Emory, 49 Mo. App. 345; Tribble v. Plalbert, 143 Mo. App. 527; Pollard v. McKenney, 69 Neb. 742. (3) Tbe circumstances that led to the incorporation of tbe J. N. Miller Co., and tbe purposes for which it was incorporated made tbe incorporation a fraud on tbe State of South Dakota and on tbe State of Missouri. Cases under points 2, 4 and 7. (4) Tbe parties plaintiff and defendant in tbis case are not in pari delicto and it is no defense to tbis suit if plaintiff or bis associates knew that defendants intended to -use tbe money paid for stock in betting on horses in 1903. Hobbs v. Boat-right, 195 Mo. 693; In re Arnold & Co., 13 Am. Bankruptcy Bep. 323; Timmerman v. Bidwell, 67 Mich. 205; Green'v. Corrigan, 87 Mo. 370; Poston v. Balcb, 69 Mo. 121; Wright v. Stewart, 138 Fed. 905. (5) The assignments of claims to plaintiff Byan were not void. Ins. Co. v. Smith, 117 Mo. 291; Chouteau v. Bougbten, 100 Mo. 406; Baker v. Crandall, 78 Mo. 584. And tbe assignee must sue in bis own name. Snyder v. Bailroad, 86 Mo. 613. (6) Tbe plaintiff is not required to pay to defendants tbe money received by him or bis assignors before bringing suit. Tapley v. McPike, 50 Mo. 592; Clark v. Clark, 59 Mo. App. 535. Besides a .right of action accrued tbe instant each sale was made. Those payments are strictly matters for counterclaims and none have been pleaded, but plaintiff and bis assignors are. nevertheless willing to have those payments deducted. (7) Tbe incorporation -of tbe Miller Co. was a fraud on tbe State of South Dakota and of Missouri and therefore void, and defendants become liable for any fraudulent sales of tbe 11,000 shares of corporation stock not subscribed for but alleged to have been sold by them after tbe sale of tbe 25,000 shares allotted to> Miller and Givens. S. D. Stat. 1899, secs. 3812, 3828,. 3855, 4209 and 7685; and cases under points 2 and 4. (a) Tbe incorporation of tbe Miller Co. is a. nullity, because tbe incorporators, and Miller, for-whom they acted, intended to violate the civil and criminal laws of South Dakota. State v. O’Brien, 74 Mo. 549; State v. Doerring, 194 Mo. 414; and cases under points 2, 4 and 7. (9) The evidence plainly shows that appellants’ alleged corporation was merely one of the links in a scheme to defraud. State v. Mispagel, 207 Mo. 557.
   GRAVES, P. J.

Plaintiff below was first unsuc cessful, the trial court having forced him to a non-suit. Upon motion being filed the court set aside the nonsuit, and from that ruling the defendants have appealed. Plaintiff styles his petition as one “to rescind a contract of sale of stock in a corporation for misrepresentation and deceit.”

• Defendants in their brief, thus characterize the petition: “There are many counts in the petition, each of which declares on the amount of stock subscribed by the respective stockholders, and there are likewise many matters of history, conclusions of law and broad conjectures set out in said petition, but the gist of it is an action to recover the amounts of money paid by these parties for their stock. Whether it is a mere suit at law for money had and receive'd, or a bill in equity to rescind a contract on account of fraud and misrepresentation, is somewhat difficult to determine. ’ ’

The petition is voluminous and perhaps in a measure subject to the criticism just made by defendants. Plaintiff, Ryan, sues not only on his own claim as a subscriber to the stock of the J. N. Miller Company, a corporation, but he likewise sues upon similar claims assigned to him by other subscribers to the stock of such corporation. There are ninety-five counts in all, each bottomed upon a purchase of stock in the J. N. Miller Company. The petition is extremely verbose, but when fairly analyzed, we are impressed with the idea that it charges fraud and deceit in the sale of stock in the J. N. Miller Company.

The single count of the petition is so long that we feel that a reasonable digest thereof should be substituted for the petition, although where the character of the petition is challenged a copy thereof is, at least excusable, if not desirable in an opinion.

The petition is in paragraphs of length and the outline will be given by paragraphs. So outlined, it charges:

In paragraph one, that in certain named states, including Missouri, there are organized societies for the improvement of breeds of horses which offer purses, on races which are legal, all of which was known to-the plaintiff and the other subscribers of stock in the J. N. Miller Company, and that defendants entered into a conspiracy to cheat and defraud the public, including the parties involved in this case.

In paragraph two, that defendants Miller and Givens had been engaged in the business of racing horses for prizes and betting purposes; that Miller owned several race horses in value less than $400, upon which Miller and Givens lost money; that Miller owned k large amount of property and was reputed to be wealthy in the city of St. Louis, as well as in other parts of the State of Missouri; that about the time of the organization of the J. N. Miller Company numerous “get-rich-quick” concerns were in operation, and it was generally believed by the public that large profits could be made out of such concerns, and the public was anxious to invest in such enterprises; that defendants Miller and Givens resolved to organize such a corporation or concern, and selected defendant Kahn, who was known as a suitable person, to write false and deceiving circulars for such an enterprise, and that thereupon the said defendants Miller, Givens and Kahn entered into a conspiracy and devised a plan, set out in the pleadings in this language: i 1 That to give semblance of legality to the enterprise they would incorporate under the laws of Dakota for the ostensible purpose of breeding horses and making-money by so doing and by their use, with a capital stock of fifty thousand dollars, a large portion of which would be paid for by a transfer of said horses of defendants Miller and Givens, and would issue certificates of stock to an unlimited amount, ostensibly as the stock of said corporation, to be divided amongst the ’said conspirators and sold to the members of the general public, who were to be induced to buy the same by false representations as to the legality or great profits of such a business, and by representations of the great wealth and excellent reputation of defendant Miller and the improbability that such a man would be connected with any swindling or fraudulent scheme; that defendant Dees was a railway conductor and well acquainted with defendant Miller, and possessed of some money and property; and the details of the intended scheme and conspiracy were communicated to him by defendants Miller, Givens and Kahn, and he thereupon agreed to enter into said conspiracy.”

By paragraph three it is charged that the corporation was organized by virtue of the conspiracy aforesaid, and the articles of association are set out, the material portion of said articles being the second and third clauses thereof, which read:

“Second. The purpose for which this corporation is formed is to establish and carry on the business of breeding and raising thoroughbred horses, to buy and sell race horses and other thoroughbred horses, to handle all kinds of horses and to carry on any business in connection with the foregoing objects which may seem directly or indirectly conducive to the interests of the company; to purcháse, lease or otherwise acquire lands or buildings for the erection and establishment of stables and other buildings and other properties which this corporation may from time to time find to be for its advantage and purpose and to conduct other enterprises which can be conveniently carried on by this corporation in connection with any of its objects and not in conflict with the laws of South Dakota; to carry on business in any other state or in any part of the world; to hold meetings, transact business and keep such books as may be necessary outside the State of South Dakota, providing however, that nothing is done inconsistent with the laws of South Dakota.
“Third. The place where the principal business of this corporation shall be transacted is Huron, in the county of Beadle, State of South Dakota, but a business office may be located at city of St. Louis, where meetings of the directors and stockholders may be had for the transaction of business.”

By paragraph four it is charged that in pursuance of such conspiracy and as a part of the scheme defendants opened an office in the city of St. Louis, issued a large quantity of blank certificates of stock and procured agents to sell the same under false representations afterwards set out in the petition.

In the fifth paragraph and some succeeding paragraphs of the petition, these alleged false statements are set out. The principal one is in the fifth paragraph and reads: “Plaintiff further states that immediately after said certificates of incorporation were issued defendants, in pursuance of said conspiracy, issued public notices and prospectuses, and published and largely circulated advertisements in the leading newspapers in the city of St. Louis and other cities not known to the plaintiff and throughout the State of Missouri, in which they falsely and fraudulently announced and declared to all persons that the corporation known as the ‘J. N. Miller Company,’ being said corporation, was a corporation of wealth and means and was backed by defendant Miller, a man of immense wealth and unimpeachable integrity; that said corporation had invested $25,000 for capital to operate on; and further in pursuance of said conspiracy, falsely alleged and stated that over $5,000,000 was offered annually in such purses and that owing to special facilities and privileges so possessed hy said corporation, which they did not more fully explain, said corporation would obtain enormous sums as winners of such purses and would distribute such sums among the subscribers to the stock of said corporation, of which fifty thousand shares at the rate of one dollar per share was for sale; and plaintiff states that by reason of false ' representations and statements, and relying upon their truth, a large number of persons, who saw advertisements, notices and prospectuses, were induced to buy over one thousand of said shares of stock at said price of one dollar per share and pay for the same to defendants, whereby they obtained over $100,000 in cash, all of which was divided amongst the defendants, as, and as soon as, received, but the defendant Miller retained the largest amount. ’ ’

By the sixth paragraph it is charged that defendants falsely pretended to have purchased certain horses from Miller and Givens at the price of $25,000 ; and falsely stated and advertised that such horses were first class race horses and sure winners of the purses described as aforesaid, and that such horses were cheap at the price.

By the seventh paragraph it is charged that these sales of stock extended over a period of several months, and that during such term in pursuance of their fraudulent scheme and design and to sell further and other stock, defendants returned to the purchasers of stock about three per cent thereof as dividends, falsely claiming that such had been earned and obtained by the corporation by purses won by the horses as aforesaid.

By paragraph eight it is averred that the horses pretended to have been bought from Miller for $25,000 were not good race horses, and were not worth more than $2000, and “were purchased by the defendants for the fraudulent purpose of inducing the public to believe the other false and fraudulent representations aforesaid of defendants, and that they really intended to compete for said purses and divide them amongst so-called stockholders. ’ ’

In paragraph nine plaintiff alleged that no capital stock had been paid up at the time of the incorporation of the company nor for a long time thereafter; that the company had no place of business in South Dakota and did no business and never held a meeting in said State, and the incorporators of said company never had any intention of doing business in South Dakota, but that said incorporation and organization in South Dakota was done with the fraudulent purpose of cheating and defrauding people of other states, including the plaintiff herein; that the money paid by plaintiff and others to defendants for said pretended stock has been spent and lost, and that the pretended officers of said company are wholly insolvent, and that defendants although requested by plaintiff and the other purchasers to repay the amounts given for said pretended stock have wholly failed to repay any part of it.

In paragraph ten of the petition it is averred that soon after the distribution of notices, advertisements and announcements of defendants, plaintiff was advised by defendant Dees to invest money in said pretended enterprise; that defendant Dees assured plaintiff that such representations and promises of defendants were true, and plaintiff, relying on and believing in them and in the assurances of Dees, paid to defendants, through Dees, who was their authorized agent,, the sum of $500, and also paid them, through another agent, one William Moss, a further sum of $1500, and received from defendant Kahn four certificates, each for 500 shares of said pretended stock; that after-wards, plaintiff, discovering the fraudulent nature of defendant’s enterprise and of their acts, tendered to defendant the 500 shares of stock and demanded the repayment of his money which was refused.

The above fairly outlines the exceedingly long petition in the case. The several counts differ only in the amount claimed. There is contained in all of the counts except the first an averment of assignment, in this language: “Plaintiff further states that after-wards, on the 27th day of April A. D., 1903, said Vogel transferred and assigned to plaintiff all his claims and demands, legal and equitable, of every nature and description against defendants, including his claims and demands arising out of the matters hereinbefore set forth, for collection, for his use, and delivered to plaintiff the said 300 shares of said pretended stock to be tendered again to defendants, and plaintiff now tenders said 300 shares of said stock to defendants and prays judgment against them for said sum of three hundred dollars, with interest.”

We quote this because the sufficiency thereof is challenged, along with a challenge to the whole petition.

The answers make certain admissions and denials, but are sufficient to put in issue all the matters pleaded by plaintiff, if plaintiff had in fact stated a cause of action. In addition the answers plead some new matter, which, if required, can best be noted in the course of the opinion along with the points made by counsel. The evidence can likewise be so considered. The reply placed in issue all new matter in the answers. Defendant J. N. Miller answered separately, and the other three defendants answered jointly. For the present, this sufficiently states the case.

I. Plaintiff concedes his action to be one to rescind a contract for fraud and deceit. Defendant is doubtful as to whether it is such an action or an action at law to recover for money had and received. If it is an action to rescind a contract for fraud and deceit, it is one in equity rather than at law. In cases; .of fraud and deceit the plaintiff has two remedies: (1) he can stand upon his contract and sue- for the damages growing out of the fraud and deceit practiced upon him in the procurement of the contract, or (2) he can elect to rescind the contract and -sue to have the same cancelled and for naught held. [Brown v. South Joplin Lead & Zinc Mining Co., 231 Mo. 166.]

Of these two remedies the first is at Taw- and the latter in equity. The measure of damages is different as well as the forum. In the first action the plaintiff can recover the difference between the full value of the property, as its value would have been had the property been up to the representations, and the real or actual value of the property, thus giving to the grantee the benefits and profits of his bargain. [Kendrick v. Ryus, 225 Mo. 150.] In the action in equity the court simply places the parties where they were before the vitiated contract was made.

Plaintiff concedes his action to be one in equity to rescind subscription contracts made by himself and others to the capital stock of the J. N. Miller Company. To such case we must therefore apply equitable rules. The case below was tried as a case in equity. Defendants challenge the right of the plaintiff to a standing in equity upon ninety-four of the ninety-five counts of the petition. The allegation of the ninety-four counts upon assigned claims we have set out. It nowhere charges that plaintiff bought the stock of the ninety-four claimants and with it their right to sue upon any assigned equitable action. It nowhere avers as to these ninety-four counts that the plaintiff was undertaking to do more than to come into a court of equity, and voluntarily or otherwise, secure the equitaable rights of these ninety-four claimants. The charge in the petition does not aver a purchase of any of this stock by plaintiff Ryan, and the proof comports with the pleading. The weight of the evidence indicates that these ninety-four parties were to pay to Ryan their proportionate part of the expenses of the litigation, and take their proportionate part of the recovery. Ryan, himself, in a way denied such an understanding, but it is so patent from the other testimony that such was the understanding, it is hardly necessary to discuss his denial.

Remembering that this is an action to rescind ninety-five contracts on the ground of fraud and deceit, the question is, will a court of equity lend its aid to Mr. Ryan on the ninety-four counts in which he has no personal interest. Under the authorities we think not. These parties claim to own no stock to sell or transfer to Ryan. They only claim to have a right of action to rescind a contract of purchase for fraud and deceit, and to that end assign such right of action to Ryan, and deliver to him the shares of stock to be by him tendered back to defendants. Courts of equity will, when the plaintiff comes into court with clean hands, grant him relief, but courts of equity do not undertake to thresh out all the grievances of his neighbors where their grievances are based upon fraud and deceit. In such case the court will inspect the plaintiff’s hands, and adjust, if need be, his grievances, but will not undertake to inspect the hands of his numerous neighbors and adjust their grievances.

In the case at bar the parties were abandoning the stock and simply asking to have rescinded their contract of purchase on the ground of fraud and deceit. They had no stock to sell and sold no stock to Ryan. They might have retained their stock and sued at law for damages on the ground of fraud and deceit, but this course they did not see fit to pursue. They elected to go into equity and must be bound by the rules of equity. What they assigned to Ryan was a mere right to file a bill in equity for them. Thus runs their pleading and thus runs the facts in evidence. They could not have sold and assigned the stock without in a way ratifying the contract, and thus leaving unto themselves only an action at law for damages based upon fraud and deceit. But as seen the action here is in equity, which precludes the idea of the assignment of anything to Ryan, except the naked right to file a bill- in equity for them. With this situation there is no question as to the law.

In 2 Am. & Eng. Ency. Law, p. 1024, the rule, buttressed by authority, is stated in the following language :

“The assignment of a mere right to file a bill in equity for fraud committed on the assignor is void as being against public policy and savoring of maintenance.
“Qualification. But it seems that this rule, as established by the authorities, applies only to a case where the assignment does not carry anything which has itself a legal existence and value independent of the right to sue for a fraud. It does not apply to a case where such right is merely incidental to a subsisting substantial property which has been assigned, and which is itself intrinsically susceptible of legal enforcement. In such a case the assignee is entitled to maintain an action to set aside a fraudulent conveyance of the property assigned, if his assignor might have done so. ”.

Whether our own case law goes further than this we need not discuss. We certainly have gone thus far. In land conveyances we may have gone further than the exception above noted by the author quoted. It would seem that our recent cases have in the cases of landed estate followed the doctrine of the common law.

The doctrine of the common law is mentioned by this court in the early case of Smith v. Harris, 43 Mo. l. c. 561, whereat Bliss, J., said: “French et ah v. Shotwell, 5 Johns. Ch. 555, cited by defendant, is also unlike the present case. The grantor had confessed judgment upon a consideration effected by usury, extortion, etc., and, before selling to the petitioner had filed his bill to set aside the judgment, but the matter was compromised and the judgment allowed to remain. The grantee bought the land, knowing the judgment and its lien upon it, and the court held that he could not impeach the judgment, and that even his grantee had put it out of his power to do so. The Chancellor refers to Upton v. Bassett, Cro. Eliz. 445, also cited by this defendant, where the judges state that it is ‘a principle of the common law that a fraud could only be avoided by him who had a prior interest in the estate to be affected by the fraud, and not by him who subsequently to the fraud acquired an interest in the estate.’ The very gist of the.action in the case at bar, as is seen, is the prior purchase and possession of the property affected by the fraud. It has always been held that.the assignment of a bare right to file a bill in equity for fraud upon the assignor is void, as against public policy, and savoring of the character of maintenance. [Sto. Eq. 1040; Prosser v. Edwards, 1 You. & Coll. 481; Morrison v. Deaderick, 10 Humph. 342.] The case now under consideration does not, as we have seen, fall under the class of cases cited by the appellant. The plaintiff’s right.to the property does not depend alone upon the assignment by West. Their purchase, their interest, their possession, were long antecedent to it. The taking a deed from him is not an original purchase, but only a step to protect that purchase, and they should be able to avail themselves of any fraud that renders the deed to Harris invalid.”

In Wilson v. Ry. Co., 120 Mo. l. c. 57, this court said: “We think also that the circumstances show that the assignment of these judgments was without other consideration than that plaintiff would prosecute this action. The Burgess judgment, which amounted to $152,000 when revived, stood from May, 1875, to October, 1882, as collateral security for $3000. It was assigned to Hugh Loonan, in whose name it was revived in December, 1887. The judgment was assigned to plaintiff in a few days after the return of an execution thereon, and immediately thereafter this suit was commenced. It does not appear, except from a statement in the petition, that any valuable consideration was paid. The same may be said of the Mc-Ginnis judgment. As soon as it was obtained it was also transferred to plaintiff, so far as was shown, without consideration, and was at once included in an amended petition in this case. We are satisfied that this-whole proceeding is a mere speculation on the liability of these defendants, as stockholders of'said corporation, and that plaintiff is a mere volunteer without substantial or equitable right. It was the duty of plaintiff to have shown his good faith, if he was so acting when it was discredited by so many circumstances. Courts of equity will not lend their aid to assist in the enforcement of legal rights acquired in such a manner. As it has been said: ‘It has always been held that the assignment of a bare right to file a bill in equity for fraud upon the assignor is void, as against public policy, and savoring of the character of maintenance.’ Smith v. Harris, 43 Mo. 562, and cases cited. ‘An assignment which violates the policy of the law against champerty and maintenance, as operating merely to procure or promote litigation, will not be permitted by a court of equity, even though it may not amount strictly to the criminal offense of champerty or maintenance.’ [3 Pomeroy’s Eq. Jurisprudence (2 Ed.), sec. 1276.]”

In the case at bar there is neither allegation nor proof of consideration. This may not be material, and we do not rule upon the question of consideration. It is at least a circumstance that can be considered by a court of conscience. The point in the ca;se at bar is that there was nothing to be assigned but the mere right to bring a suit in equity. There was no stock to assign, because the purchaser's were charging that the contract was void and were tendering the stock back to defendants.

In Haseltine v. Smith, 154 Mo. l. c. 412, the views of this court are thus expressed: “Suppose L. A. Haseltine were the plaintiff here, what could he say that would entitle him to a cancellation of his deed to Smith? But conceding that he could have maintained such a suit he could not assign his right to do so. The bare right to maintain a suit in equity to set aside a deed obtained from the assignor by fraud is not assignable. [Smith v. Harris, 43 Mo. 557; Wilson v. Railroad, 120 Mo. 45; 3 Pom. Eq. (2 Ed.), sec. 1276; 2 Story, Eq. (13 Ed.), 1040g.]”

And in the very recent case of Weissenfels v. Cable, 208 Mo. l. c. 532, we said: “In the first place, if we concede that the naked legal title to tracts 1, 2 and 3 had not passed out of Boone prior to the date of that deed, and if we go further and concede that Boone was defrauded by the execution of that deed to defendant, then the fraud touches Boone alone and the right of action on the fraud is not a vendible commodity to pass from one to another by dicker and sale. The right to sue to set aside that deed was in Boone, remained in him (if anywhere), and did not pass by his subsequent special warranty to plaintiff. [Smith v. Harris, 43 Mo. 557; Jones v. Babcock, 15 Mo. App. 149; Wilson v. Railroad, 120 Mo. 45; Haseltine v. Smith, 154 Mo. 404; Hayward v. Smith, 187 Mo: 464.] The general rule that a subsequent grantee may not maintain a suit to set aside a prior fraudulent deed from his grantor to another is subject to a main modification, viz.: if such subsequent grantee had a prior, independent, equitable right in the subject of the grant, then he may maintain his bill to set aside the fraudulent conveyance of his grantor standing in the road of clearing up and perfecting his original, prior, independent, equitable right in the subject of the grant. [See cases, supra.]”

It therefore appears that in the conveyances of estates and the incidental assignments of causes of action thereby created, our court has adhered to the common law rule quoted in Smith v. Harris, supra.

So, too, Thompson, J., in Jones v. Babcock, 15 Mo. App. l. c. 150, says: “We shall affirm the judgment in this case upon the sole ground that the bare right to complain' of a fraud is not a vendible commodity. ‘It has always been held,’ said Bliss, J., ‘that the assignment of a bare right to file a bill in equity, for fraud upon the assignor, is void, as against public policy, and savoring of the character of maintenance.’ [Smith v. Harris, 43 Mo. 557, 562.] He cited to the point, Story Eq. Jur., see. 1040h; Prosser v. Edwards, 1 You. & Coll. 481; Morrison v. Deaderick, 10 Humph. 342, and McMahon v. Allen, 34 Barb. 56, all of which sustain this doctrine, as do other cases. In McMahon v. Allen, supra, it was held that one who has conveyed real estate, and who is entitled to have the conveyance set aside on the ground of fraud, can not so assign his' naked right of action that his assignee may sue in his own name. The conveyance is voidable, not void, and the right to avoid it is not an 'assignable chose in action. Of course, the case is different where the assignment is of something in the nature of property. Here the assignee takes not only the thing assigned, but whatever is necessary to enable him to possess and enjoy the same. Thus we have held that the assignment of a judgment enables the assignee to maintain a snit in equity against the judgment debtor to set aside a prior conveyance of property in fraud of his creditors. [Lionberger v. Baker, 14 Mo. App. 353.] If the present case does not fall within the rule, then there is no such rule. The case charged, in substance, is that Frances J. Jones and Richard S. Jones, her husband, had made certain conveyances in trust to the defendant, Leicester Babcock, to secure certain debts; that Babcock in 1874, secretly purchased the notes thereby secured, advertised the property for sale, sold the same as trustee, and caused it to be bid in in the name of the cestui que trust, but really for himself; that this fraud was not discovered until March, 1880; and that in May, 1880, Frances J. Jones and Richard S. Jones conveyed, by quitclaim deed, their right, title, and interest in the premises thus sold under these deeds of trust, to this plaintiff. What did.this quitclaim deed convey to this plaintiff beyond the bare right to prosecute a suit in equity to set aside a trustee’s sale on the ground of fraud? That was all the grantors had to convey; and while they could have asserted such a right themselves, they could not assign it to another. It is different from the case where a party is out of possession and another party in possesion under a deed which is wholly void, as a deed of married woman which has not been properly acknowledged. Here, no title has passed; but the trustee’s sale in question was not void in the sense that no title passed to the purchaser; it was merely voidable at the election of the parties prejudiced thereby, in case they should seasonably invoke the aid of a court of equity to that end.”

We need not discuss further the rulings of this court. If they go beyond the exception stated in the paragraph quoted from 2 Am. & Eng. Ency. Law, supra, it at least appears that we have been recognising the common law rule.' But in the case at bar under the facts pleaded, and we may add under the facts proven, the plaintiff was the assignee óf a mere right to sue in a court of equity. Such an assignment is void. As stated in the rule, public policy condemns such a course. It follows that as to at least ninety-four of the ninety-five counts of the bill there was no right of recovery in plaintiff, and as to them the court nisi erred in setting aside its judgment of nonsuit.

II; Whilst the law eliminates a consideration of the merits of the case except as to the count based on the individual claim of the plaintiff Ryan, yet this count requires a short review of the facts and a consideration of the merits. As to the excluded ninety-four counts, the same evidence applies, and our remarks would likewise be applicable. There is no substantial merit in Ryan’s claim, or in those assigned to him. The plaintiff’s evidence, which is all there is here, consisted of certain documentary matters, and the oral evidence of himself, F. C.-Schine, Benjamin Yon Phul and Joseph P. McGrath, together with the depositions of defendants Miller, Kahn, Dees and Givens. This evidence, when fairly considered, shows that the J. N. Miller Company was organized under the laws of South Dakota, because such laws were more favorable than those of Missouri. In the first place, under such laws, not more than half the required stock need be subscribed for at the date of organization. In the second place, the incorporation fees were nominal. The situation of the law gave Miller and Givens, who owned a number of race horses, the right to subscribe to one-half of the capital stock of the corporation (which was $50,000) and pay up the greater portion of such subscription with their horses. It also gave them an opportunity to sell the remaining stock, and use such money in the business of book-making on horse-racing. That the corporation was legally organized there can be no question. If organized for a fraudulent purpose, the evidence before us fails to sustain that view. This evidence, it is true, comes from the defendants, but plaintiff took their depositions and read such depositions in evidence as a part of his case.

Under the evidence it would appear that Givens and Miller, who had a stable of race horses, conceived the idea that if they could add to their stable other and better horses, and then combine with the racing for purses and premiums, the business of book-making, large sums of money could be made. But to buy horses and get cash upon which to operate the book-making business, required more money, and they fell upon the idea of organizing the J. N. Miller Company, as above stated and for the reasons above stated.

Having organized, the subscribed stock of $25,000 was partly paid up in cash and partly by horses from the Miller and Givens stables. This gave the new concern some cash and a string of six or seven race horses. Miller and Givens had made money in racing their horses the year previous. Upon' receiving the charter the company opened an office in the city of St. Louis for the sale of stock. To this end, the parties issued a prospectus. Upon this prospectus and other similar literature the stock was bought and sold. As this prospectus contains the representations, we reproduce the same, with the exception of a long paragraph thereof, explanatory of how the book-making business was carried on, and the prospects of heavy profits from such gambling scheme. The prospectus reads:

The J. N. Miller Co. i¡s a duly incorporated stock companyi organized for the purpose of continuing the business of J. N. Miller & Co., the’ well-known racing firm, and to enlarge the same by the operation of a percentage book. The capital stock is $50,000, divided into 50,000 share's .of the par value of $1 full paid and non-assessable.
Of the capital stock, 25,009 shares have been subscribed by the incorporators and fully paid up. The balance, will be sold at par. This stock will not be advertised nor put on the market for public subscription, but will be limited to the incorporators and their personal friends and acquaintances.
The president of the company, Mr. J. N. Miller, the well-known capitalist and banker, of Dexter, Missouri, needs no recommendations to Missourians. He is the heaviest stockholder, and will devote enough of his time and attention to the affairs of the company to insure its well management and success.
CAPITAL AND HOW INVESTED.
It is the intention of the company to operate with a cash capital of $25,000, and to invest $25,000 in good, sound serviceable young race horses.
The best horses in the present Miller stable will be retained, but the company will add as soon as possible at least "ten first-class performers, horses which will be capable of pulling down the big end of the purse whenever entered. The company will also have the services of one of the very best jockeys in the United States.
Operations will commence at New Orleans November -27th.
IMMENSE PROFITS IN SIGHT.
The various race tracks in the United States now give away over $5,000,000 annually in purses. Of this large amount $4,000,000 is divided amongst about eight hundred horses, making an average of $5,000 to each horse. The horses will average in cost aboiut $2,000. Their earning capacity therefore is over two hundred per cent annually in purses alone. These are facts of common knowledge and easily verified.
A book with $25,000 capital can easily handle with wages and commissions $5,000 per day. Of this amount the book will retain as its profits an average of 10 per cent or $500. The daily expenses are less then $200, leaving a net profit of over $300 per day or $100,000 annually. These estimates are very conservative. There are several firms in the West which have operated racing stables in connection with their books during the past season that have earned more than the above amount.
DIVIDENDS.
A small per cent of the, profits will be set aside as a sinking fund for the purchase of horses to keep the stable at a maximum of earning capacity. The balance of profits will be divided amongst the shareholders in regular weekly dividends.
THE MANAGEMENT.
The stable will he managed hy Jas. Givens, who has so successfully trained the horses owned hy himself and Mr. J. N. Miller for the past five years. As a trainer Mr. Givens has no peer, which he has repeatedly proved by winning high class races with horses which had shown inferior form in other trainers’ hands. Mr. Givens has lately refused several flattering offers to train for some of the heavy turf operators at a large salary.
The hooking operations of the firm will be managed hy Mr. Frank Dayton, heretofore with the racing and hooking firm of Dayton & Co. That he is a capable book-maker he has amply demonstrated hy being a continuous winner on the block. He is a practical horseman, and is one of the few book-makers who make it their business to be at the track early every morning and time the horses in their trial workouts. He is considered the best judge of a trial-work in America, and he commanded a-handsome salary at this class of work before he commenced "booking for himself. Owing to these exceptional qualifications it is safe to predict tha,t the hooking operations of the firm will be ■extraordinarily successful *****
[Here follows a description of the hook-making business and its profits.]
TO" INVESTORS IN CO-OPERATIVE TURF COMPANIES.
That co-operation in hook-making and racing is a legitimate means of earning large profits is proved by the several dividend paying concerns in the West? The J. N. Miller Co. must not, however, he confounded with any of these mushroom organizations of uncertain durability and unreliable management which guarantee to pay only a small per cent weekly of the profits, no matter how large, and give the investor no stock in the enterprise. The incorporation of the J. N. Miller Co. gives each shareholder a legal title to a share of the cash capital, and the property of the company, and insures him his pro rata of the entire profits. We predict that the stock in this company will be worth $2 per share inside of six months.
A FEW FACTS.
There has never been a failure of a book-maker who has ■operated a stable in connection with' his book.
The four largest winners on the Western turf are bookmakers who have owned and operated stables.
The capitalization of the J. N. Miller Co-, is very low. It contains not one drop of water. The assets of the company will consist of cash and property to the full amount of the stock outstanding. This will insure dividends a great deal larger than in any other company of like earning capacity. In these days of watered stock investors will appreciate these evidences of square dealing.

Later letters showed the profits which were being paid each week. Some purchasers of stock acted upon these letters as well as the prospectus. They also-acted upon alleged oral statements made by the sellers of the stock to the effect that the business was a money-maker, and that Miller, the president of the corporation, was strong financially. There was some testimony to the effect that they thought they could draw out their investment at any time, but in view of' all the facts these statements were too unreasonable to merit consideration. Yon Puhl, one of the principal witnesses, gave a party five per cent commission to-get him stock in the J. N. Miller Company. He was one of the late purchasers and received no dividends. Most of the stockholders received weekly dividends, of four per cent and less until they had received some-thirty cents on each dollar invested. Finally dividends were stopped and troubles arose resulting in this action.

It is shown in the evidence that for some weeks, the business earned money, and with this money so earned paid the dividends which were paid. Plaintiff' not only fails to prove the charges of his petition in this regard, but on the contrary shows by the depositions which he introduced that these dividends were in-fact paid out of the profits made during the first weeks, of the corporation’s business upon the race tracks at. New Orleans.

As above stated the proof fails to convince one-of a sinister motive in the organization of the company.

There is evidence both ways as to the value of the horses put in by Miller and Givens, but even this difference is slight compared with the wholesale charge made in the petition.

That J. N. Miller was a well-known capitalist of Dexter, Missouri, is not denied. That he was theheayiest stockholder at the time of the prospectus is. not denied. That the best horses of Miller’s stable were taken for the company as stated in the prospectus is not denied. That Givens was a successful horse trainer is not denied by the proof.

We might take up each statement, in the prospectus and letters (most of which statements are mere statements of opinion), and go through with them, and when the evidence in the record is compared with the ■charges in the petition, there is a total failure of proof.

The evidence discloses that for a while the business was very successful, but finally misfortune overtook the book-maker, and heavy losses followed. The track conditions were bad, and the betting public picked the winning horses better than the book-maker. Plow this could be done is thoroughly explained by the evidence. The track and its condition at New Orleans, where the company was operating, are fully explained. The details of this explanation need not be set out. Suffice it to say that it stands unimpeached and as a part of plaintiff’s case.

It is further shown that the horses contracted -disease and could, not work, and that this entailed expense. The evidence put in by plaintiff reasonably accounts for the loss which the company suffered and its failure to pay dividends. At the time these proceedings were begun the corporation owned eleven head of race horses, the value of which under the proof varies, the highest value being something like $26,000. It owed but little in the way of debts. With these facts there is no'merit in Eyan’s claim or in the other claims.

From the very beginning it was announced that the corporation would use its money, to gamble on Iiorse racing. The plaintiff and other purchasers of stock put their money in, knowing that fact. The prospectus announced the fact, and the witnesses all say that they understood their money was to be used in that way. They were not misled as to the purposes of the corporation. They knew just to what use-their money was to be put, and further as sensible-citizens must have known the hazards of race-track betting. These parties saw, or thought they saw, big-interest on their investment. They were willing that the public should be fleeced for their gain, and yet,, if by good fortune the public bettors succeeded in fleecing them, then they ask their associates in the business to return their money and they -keep the-profits.

A court of equity should wash its hands of a deal of this kind. We are cited to the case of Hobbs v.. Boatright, 195 Mo. 693, as authority for this action. That case is authority the other way, when closely read and analyzed. At page 724 of that case "Valliant, J., said: “If the case at bar disclosed but one-transaction, if we should shut our eyes to the other transactions of like character that distinguished the-, history of this Buckfoot gang, if our whole attention was confined to the scheme entered into by the plaintiff' with Wasser and Fisher in Oklahoma and the denouncement at "Webb City, we could not say that one. was less guilty than the other; it was a scheme of dishonest purpose and there is no justification or palliation of it, and if there was nothing else in the case to make the offense of one more enormous than the-other, we would not listen for a moment to the plaintiff’s prayer for relief, and if we do listen to him and grant him what he asks, it is not through any consideration of wrongs suffered by him, but in tender consideration for the welfare of that community whose-laws have been defied, and whose public morals have-been shocked by this gang of bad men and to bring them to the bar of justice.”

So in the case at bar; even if we concede all of' plaintiff’s contention (which we do not) to the effect that the organization of the corporation was a fraudulent scheme, yet the Boatright case is no authority for a recovery in this case. Nor are the other cases cited nearer in point. But in our view of the evidence, no case is made of a fraudulent scheme to defraud purchasers of stock. The scheme was to get money enough together, through this corporation to operate the horse-racing and book-making business, to the end that the stockholders through the corporation .might fleece the general public. This plaintiff knowingly participated in'the scheme and for that purpose became a stockholder. The doors of courts of equity should be closed against all such applicants. Of course in this desire to fleece the betting public the defendants were as guilty as plaintiff, but not more so.

Upon the merits no case was made, and for that reason the court nisi erred in setting aside the non-suit.

The cause is reversed and remanded with directions to the lower court to set aside its order setting-aside the nonsuit taken by the plaintiff, and that such court thereupon enter its order overruling the plaintiff’s motion or application to set aside such nonsuit.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    WILLIAM A. TURNER v. MARY W. ANDERSON et al., Appellants.
    Division One,
    July 12, 1911.
    1. JUDICIAL OPINIONS: Statement. A statement amounting to a summary, in just outline, color and connection, of the evidence of sixty-seven witnesses, extending through seven hundred and sixty-four pages of solid print, cannot be so compressed within modest and reasonable bounds as to be either intelligible or valuable, in the decision of the appellate court; and, besides, the statute requiring “a sufficient statement of the case, so that it may be understood without reference to the record 'and proceedings” is of doubtful validity, since the Constitution does not require such a statement, and the Legislature cannot assume powers committed to the Judicial Department.
    2. WILL CONTEST: Undue Influence: Mental Condition as Evidence. Even though the mind of the testator had been weakened by disease and a weakened mind may be more easily influenced than a strong one, there must be substantial evidence that the influence of another operated and was undue to shape the will, before it can be held to be void because of undue influence. It is not sufficient to prove influence; it must be undue.
    3, -; -; of Wife: Exercise. Proof of such overmastering influence of a wife over her husband as might guide and mould his will is not sufficient proof of undue influence. There must also be proof that such influence was exercised upon him, and that the effect of such exercised influence is the will in contest. The influence of natural affection is not sufficient, for natural affection is never condemned by the law. To he effective in breaking the will it must be of sufficient potency to destroy the free agency of testator at the time of making the will.
    4. -: -: Proof: Inference. Undue influence as a rule cannot be proven by direct and positive testimony, but often must of necessity rest in inferential proof; yet one or the other or both must be present before a verdict setting aside the will on account of undue influence can be upheld. ■ The undue influence must be present, in active exercise, and rise to the mark of such overpersuasion, coercion, force, fraud or deception as breaks the will power of testator and puts in its stead the will of another. Whenever there is substantial evidence tending to establish such influence, whether it be direct testimony or facts from which such influence naturally flows as its product, the question of the validity of the will then becomes a matter for the jury to determine; otherwise, not.
    5. -: -: Wife’s' Influence. The' testator’s first wife died leaving him two daughters, one of whom married against his wishes, though there was no open rupture. He later married again, a woman twenty-six years younger than himself, and discord and a sour condition grew up between her and the two children. He was a positive, self-reliant, reticent, potent man, lacking in magnanimity and tact in dealing with his domestic troubles. The second daughter did not live at his house after his second marriage, but among relatives, but when she was about sixteen years of age she went to her stepmother and asked to come home and live, hut was denied that privilege by her and later by her father. She lived with her sister a while, married a worthless man, and her father gave her money, but required her to minutely account for the sums advanced. When he was about sixty-five years of age, possessed of an estate amounting to about $310,000, he was greatly weakened by disease, nervous troubles, hernia and epilepsy, and to “please his family” went with his second wife and her two children to Europe, and before going he made a will by which he gave the bulk of his estate to his wife and her two children, and divided the balance equally between them and his two daughters by the former wife, each of the five getting under the residuary clause a considerable sum. He knew at the time he left that his married daughter was incurably sick. She died during his absence, leaving two sons. Thereafter he conceived the idea that if his will remained unchanged her husband would receive a part of it, and he added a codicil by which he gave to her children the share given by the will to her. Later he made the will in suit, giving to each of her sons $5,000, made his wife and her two sons the principal beneficiaries, and divided the residue into four parts, giving to his wife and her two sons and the.surviving daughter by the first wife one part each. According to its provisions, the wife and her two sons would each receive about $88,000, the surviving daughter about $35,000, and the two sons of the deceased daughter $5,000 each. 'The will was drawn by testator’s trusted and long-time attorney, and taken away by him and later brought back and executed and witnessed in the attorney’s office. The wife was not present when the first will, its codicil, or the second will was made, or at any consultation as to either. She did not manage his business at any time. Meld, that there is no evidence of undue influence.
    6. -: Testamentary Capacity: Taken from Jury: No Appeal by Contestant: Reversal for New Trial. Where the trial court instructed the jury that there is no evidence that testator was incapacitated to make a will, and submitted to them the issue of undue influence and the verdict set the will aside on that ground, and proponents alone appeal, and the verdict cannot be sustained for lack of substantial evidence to support it, the Supreme Court will not dispose of the case by a simple reversal of the judgment, where substantial evidence is preserved for review by appellants that testator’s mind was so impaired that he did not have testamentary capacity to make a will, but will remand the case for new trial on that issue; and that will be the course whether or not contestant appealed from the ruling of the court withdrawing that issue from the jury.
    7. -: -: Evidence: Epilepsy. Where testator, an old man, for many years had been afflicted with hernia and epilepsy, which is a disease of the brain and frequently lowers both the mental capacity and the moral sense; where his business sense had been whimsical and poor, and the epilepsy not only virulent, hut there is evidence to indicate it had become permanent, and to prevent a strangulated hernia he submitted to a major surgical operation and died in an epileptic convulsion; and where his property was managed largely by competent agents, and his attention to and knowledge of his business affairs indicated a wandering and weakened mind and a loss of mental reckoning, there is sufficient proof to carry the case to the jury on the issue of testamentary incapacity. .
    8. -: -: Test. To have a mind and memory enough to make a will, testator should he able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who are the natural objects of his bounty, their deserts in reference to their conduct and treatment of him, their capacity and necessities.
    Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.
    Reversed and remanded.

      Peed, Ativood, Yates, Mastín & Harvey and Paxton é Pose for appellants.
    (1) The jury were not authorized to fill up gaps in the evidence by mere speculation. Bank v. Railroad, 98 Mo. App. 330; Tibbe v. Kamp, 154 Mo. 580. (2) There was no proof of undue influence, nor any proof.that any such influence was operative in the making of the will. Wood v. Carpenter, 166 Mo. 465; McFaddin v. Catron, 138 Mo. 197; Defoe v. Defoe, 144 Mo. 458; Sebr v. Lindeman, 153 Mo. 276; Fulton v. Freeland, 219 Mo. 494; Weston v. Hanson, 212 Mo. 248. (3) On the record this case ought to be reversed and remanded with directions to establish the will. Wood v. Carpenter, 166 Mo. 465; Hamon v. Hamon, 180 Mo. 685; Teckenbrock v. McLaughlin, 209 Mo. 533.

      William E. Wallace and T. B. Wallace for respondent. .
    (1) In a will case the burden of proving mental capacity is on the proponents of the will throughout, and never shifts. Mowry v. Norman, 204 Mo. 189; Mowry v. Norman, 223 Mo. 463; Goodfellow v. Shannon, 197 Mo. 271. (2) The testator must have sufficient mind to comprehend his property and to know what disposition he is making of it, without the aid of any other person. Holton v. Cochran, 208 Mo. 417. (3) He must have mind and memory capable of regarding and discriminating as to those who are the natural objects of his bounty and bound to him by obligations of family and blood. Roberts v. Bartlett, 190 Mo. 699. (4) Moral obligations and inequalities in the will are important circumstances bearing on the questions of mental capacity and undue influence. Meir v. Butcher, 197 Mo. 68; Holton v. Cochran, 208 Mo. 417. (5) "Where there is substantial evidence to support the verdict, the court will not disturb the judgment. The court will not weigh the evidence for and against the will, but will examine the evidence to see if there is any testimony to support the finding. Hill v. Boyd, 199 Mo. 448; Roberts v. Bartlett, 190 Mo. 695; G-oodfellow v. Shannon, 197 Mo. 271. (6) It is not required that undue influence should be shown by direct proof, but it may be established by proof of facts from which it may ratipnally be inferred. Bradford v. Blossom, 190 Mo. 139; Meir v. Butcher, 197 Mo. 91. (7) Undue influence may be shown by the relation of the parties, the mental condition of the person whose act is in question and the character of the transaction. Roberts v. Bartlett, 190 Mo. 701; Bradford v. Blossom, 190 Mo. 139. (8) While it is true that undue influence will not be presumed, yet when such facts are proven as will authorize a jury to find the existence of undue influence, the burden shifts, and it then devolves upon the party charged to exonerate himself from snch charge in like manner as in case of fiduciary and confidential relations. Roberts v. Bartlett, 190 Mo. 701; Gay v. Gillihan, 92 Mo. 263; Bradford v. Blossom, 190 Mo. 143. (9) It is not required that overt acts of undue influence were' exercised at the exact time of the execution of the will, but it is sufficient to show that snch influence over the mind of the testator had been acquired previously, and was operating at the time of the making of the will. Mowry v. Norman, 204 Mo. 193; Taylor v. Wilburn, 20 Mo. 306. (10) In some cases undue influence will be inferred from the nature of the transaction alone; in others from the nature of the transaction and the exercises of occasional or habitual influence. Harvey v. Sullers, 46 Mo. 152. (11) Gross inequalities in the will may shift the burden of proof upon the proponents of the will to prove that it was not procured by undue influence. Gay v. Gillihan, 92 Mo. 264. (12) In Mowry v. Norman, 204 Mo. 173, the presumption of undue influence was drawn not from confidential relations between the parties, but from circumstances showing control over the mind of the testator. Where undue influence is presumed in such a case, the credibility of witnesses in rebuttal is for the jury. (13) In Mowry v. Norman, 204 Mo. 192, it was held that the fact that the will recited that the testator was free from undue influence was of itself sufficient to cast such suspicion on the transaction as to send, the case to the jury. So, in this case, the admitted precaution taken to guard the question of mental capacity by having the will witnessed by the family doctor and by employing the other witness to the will as counsel for the defendants in the will contest, ought to be sufficient of themselves to send the case to the jury.
   LAMM, J.

In June, 1900, Mathew W. Anderson made his will. In November, 1903, he made a codicil. On March 29, 1905, he made a new will, dying January 20, 1906. Six months later plaintiff, a grandson, sued in the Jackson Circuit Court to break it. After a ten days’ trial in which 67 witnesses were examined, their testimony and documentary evidence covering 764 pages of solid print, the jury broke the will, and judgment followed that verdict. Among the defendants were Mary W. Anderson, widow of testator (his second wife), and Henry Clay and Mathew William Anderson, Jr., minor sons of testator by said second wife. These defendants on due steps appeal. There were two other defendants, Nellie Anderson Harvey and Reid S. Turner (the former testator’s married daughter by his first wife and the latter by his grandson, a brother of plaintiff, both of them sons of testator’s deceased married daughter, Mrs. Turner, by his first wife), who do not appeal.

We allow ourselves a foreword, viz.:

Our statutes ordain that in a case determined or finally disposed of upon motion here, our opinion shall be reduced to writing and filed in the cause, and shall show which judge delivered it, and which concurred or dissented. [R. S. 1909, sec. 2087.] The next section of the statute prescribes what our opinions shall “always contain,” viz.: “A sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same.” Turning to our Constitution, it prescribes that the opinions of the St. Louis Court of Appeals shall be in writing and filed. [Sec. 15, art. 4, Const.] By an amendment in 1890, said Constitution is made to further provide (Sec. 3, of the amendment of 1890, R. S. 1909, p. 104) that the opinions of each division of the Supreme Court shall be in writing and filed.

I am indebted to the courtesy of an erudite counselor for a reference to a case apposite to conditions thus outlined, viz., Houston v. Williams, 13 Cal. 24. In that case the Supreme Court of California, speaking by Justice Stephen J. Field, held that the decision of a court is its judgment; that the opinion is the reasons given for that judgment; that the practice of giving in writing the reasons of judgments is of modern origin; that the duty of the California court (absent a constitutional requirement) was discharged by the rendition of its decision; and that the Legislature could not require the Supreme Court to give the reasons of its decisions in writing. In that State at that time there was no constitutional, provision, but' there was a statute ordaining that the decisions of any appellate court should be in writing “with the reasons thereof,” etc. It will be observed that our Constitution requires the divisional opinions of this court to be in writing, but says nothing about a 11 statement” or Banc opinions. Our statute does not rest content with the provisions of the Constitution, although that instrument created both Legislature and Court. The two are of coordinate dignity, of common birthright and sprang from the same august and noble loins — the sovereign people, speaking as sovereigns. The statute goes further. It requires at our hands a written opinion in every case whether in Division or Banc, whether it is determined by a hearing or a motion. It also requires a “statement.” Mark the language, a statement of a certain scope and sort, viz., one “ that shall be understood” etc. The term “understood, ’ ’ in the connection used by the lawmaker, invites observations. But as they spring spontaneously, any discriminating and good-humored reader can make them for himself. Heretofore this statutory mandate has been deemed either obligatory or has been obeyed in a spirit of comity or out of deference to the lawmaking power. However, a certain natural and untoward thing has happened. The statute is the chief factor .swelling the length of appellate opinions and causing them, now and then, to be much murmured against. For the present we reserve the point, but it may be worth while right soon to gravely consider and finally determine whether that statute is constitutional and should be longer obeyed.

Attend to the animated language of Justice Field, anent the California statute:

“ . . . It is but one of many provisions embodied in different statutes by which control over the Judiciary Department of the government has been attempted by legislation. To accede to it any obligatory force, would be to sanction a most palpable encroachment upon the independence of this department. If the power of the Legislature to prescribe the mode and manner in which the Judiciary shall discharge their 'official duties be once recognized, there will be no limit to the dependence of the latter. If the Legislature can require the reasons of our decisions to be stated in writing’, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written, and the ink which shall be used. And yet no sane man will justify any such absurd pretention, but where is the limit to this power if its exercise in any particular be admitted?
“The truth is, no such power can exist in the Legislative Department, or be sanctioned by any court which has the least respect for its own dignity and independence. In its own sphere of duties, this court cannot be trammeled by any legislative restrictions. Its constitutional duty is discharged by the rendition of decisions. The Legislature can no more require this court to state the reasons of its decisions, than this court can require, for the validity of the statutes, that the Legislature shall accompany them with the .reasons for their enactment. . . . The practice of giving the reasons in writing for judgments hast grown into use in modern times. Eormerly, the reasons, if any were given, were generally stated orally by the judges, and taken down by the reporters in short hand. [1 Blackstone, 71.] In the judicial records of the King’s Courts, ‘the reasons or causes of the judgment,’ says Lord Coke, ‘are not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in .question, but in their judgments express not any; and, in truth, if judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary services of the commonwealth, and their records should grow to be like Elephantini Libri, of infinite length, and, in mine opinion, lose somewhat of their present authority and reverence; and this is also worthy for learned and grave men to imitate/ [Coke’s Rep. part 3, pref. 5.] ”

¥e pass the matter with the suggestion that a “statement” of the instant case (giving to that term the meaning of a summary of the evidence of 67 witnesses in just outline, color and connection) could not be compressed within modest or reasonable bounds, and made either intelligible or valuable.

Accordingly, we shall give our impressions of the salient features of this case omitting details.

It was denied by contestant and affirmed by proponents that testator had testamentary capacity. It was asserted by contestant and denied by proponents that the will was the product of undue influence. Such were the issues on the pleadings and on those issues, testimony went in.

Taking the laboring oar, proponents produced the-witnesses to the will, made a prima facie case of a testamentary mind and offered the last will in evidence.. Contestant then put in his proof on both issues and rested. Thereupon those defendants who appeal asked an instruction in the nature of a demurrer. This was refused and the point was saved. Thereupon they put in proof to rebut the testimony of contestant on. both issues. Thereupon they offered, among others, one instruction coercing a verdict in favor of the will on the issue of undue influence, another to the effect there was no proof of undue influence and that matter was withdrawn from the jury, another coercing a verdict in favor of the will upon the question of mental capacity to make it, and another coercing a general verdict for defendants. These instructions were refused and appellants saved the point by an exception. Thereupon the court instructed the jury in behalf of contestant on the issue of undue influence — appellants excepting and saving the point. The court then gave to the jury on the prayer of appellants an instruction on undue influence, which instruction, inter alia, had a clause telling them that the only issue submitted is whether or not the paper writing offered in evidence was procured through the undue influence of testator’s wife, Mary W. Anderson. To that instruction plaintiff excepted. Thereupon the court, sua sponte, gave an instruction to the effect that testator under the evidence had sufficient mental capacity on March 29, 1905, to make a will, and as to that issue the finding will be against plaintiff. To that instruction plaintiff excepted.

It will thus be seen that the issue of testamentary capacity was taken from the jury and that the case was left to hang on a single thread, viz., the undue influence of testator’s widow, and that sole issue was submitted to the jury and found for contestant.

Appellants, waiving all other errors claimed, assign only one, viz., the court’s ruling on the demurrer at the close of plaintiff’s evidence, and again on the same demurrer tendered at the close of the case. The scope of that assignment is limited by counsel to one question, namely, error in not withdrawing the question of undue influence from the' jury. The brief of repondent’s counsel covers both testamentary capacity and undue influence. As we interpret it their position on briefs is that not only the issue of undue influence was properly submitted but that the other trial issue, testamentary capacity, should have been submitted. As we grasp it, their position in argument at this bar was that if we should hold against them on the issue of undue influence, we ought not to reverse and remand with direction to solemnly probate the will but should send the case below to be retried on both issues.

I. Of undue influence.

Testator reached three score and ten and died. Marrying the daughter of a neighboring farmer in 1861, he was then a young man, poor in property but rich in ambition and capacity. Nature endowed him richly along some lines. In person, he was commanding; in physical power, strong; in those elements contributing to business success, he was, much above the average man, self-reliant, reticent, far-sighted, industrious, resourceful. Arising to his opportunities and growing with them, he achieved lucrative official and business position. The first record glimpse we have of-him is as a wood hauler; the last is as president of a bank, living in affluence. When his first wife died, in 1887, he was already a rich and influential man, engrossed in managing his fortune. At that time he had two daughters — one of them, Kate, shortly thereafter married to Mr. Robert Turner; the other, Nellie, a child of seven or eight. While a widower, he maintained his home, installing therein his sister, Mrs. Franklin, as housekeeper, who seems to have taken the place of mother to Nellie. Three years thereafter, when Nellie was eleven years, he married his second wife, the defendant Mary W., younger' than he by twenty-six years. At that time the Turners lived in Mexico, Missouri, and Nellie and Mrs. Franklin made up his household. In the lines and between the lines, of this record may be read the regrettable but conspicuous fact that between them all they did not well solve the delicate problem of installing a stepmother in the old home and in readjusting their family relations along pleasant and wholesome lines. Where the-shoe precisely pinched and who was entirely to blame, we may not know with certainty from this record. The-new wife came from her abode in Kentucky, a stranger to that household, doubtless expecting much and hoping much. Presently, there were feminine stings on both sides. To accord a just proportion of praise or blame in that behalf, is a task vain and impossible to-a mortal court, and is one not necessary to assume in determining the question in hand. It is probable from record signs that the new mother was not wanted, or cordially received, hence was not unreservedly accorded an unquestioned place as head of the house. Such condition is a human one and should be faced with tact and a high sense of duty. The married' daughter, Mrs. Turner, and her husband, Eobert, extended no written or oral felicitations on the marriage. If that is to be taken as a breach of the amenities, it is here to be reckoned with as a cause of many evils. Mrs. Franklin for a short time continued to preside at the head of the table. Beneath a fair front of politeness on both sides there may be read the-story of mutual frigidity and restraint among tire-women. That Nellie’s mind was premeditatedly and designedly poisoned against her new mother does not appear, but that she was bitten by the prevailing frost,, we think'does. The father lacked the judgment, patience and tact necessary to guide and control events-to an auspicious ending. Present the duty arising from her marriage and her voluntary assumption of' the relation of a mother, the new mother cannot beheld without blame. The Turners were clearly at fault. To blame the young daughter, a child, is out of the question, but if there were those who made the problem difficult of solution by chilling or coloring the mind of Nellie (and results point that way), they were much to blame. It would serve no useful purpose to pursue this miserable story of domestic infelicity. The result was an arrangement, continuing for years, that Nellie should go away with Mrs. Franklin and live with her, the father making an allowance for both and afterwards educating his daughter. There is testimony on one side somewhat indicating that the new mother was responsible for this situation, and on the other that she was not. There is testimony indicating that the early breach was never healed. The Turners afterwards moved to Independence and Nellie went to live with them, but whether through mutual pride or other cause no cordial relations were established between the women of the two families. .There is but dim light in the record, but that light, such as it is, shows that Turner was not a welcome son-in-law to Mr. Anderson from the outset, and that the relations between the two were more or less cold and restrained —this, both before and after testator’s marriage to his second wife. Whether Mrs. Anderson merely sympathized with her husband’s views, or enteretained her own, is dark, but she and Mr. Turner were never friends. Nellie married unfortunately and we may leave to oblivion the testimony tending to show it was deemed unwise on her application to take her back to her old home after she had attained the age of seventeen. Mrs. Anderson opposed it and Mr. Anderson did not agree to it. There is evidence that the father’s course with his daughters in settling with them for their inheritance from their mother was grasping and unsentimental. So in taking notes from Nellie for an allowance he made her after her marriage the tender offices of an affluent father seem quite lost, but there is no testimony that the defendant, Mary W., had part or parcel in these matters. There were born to the Turners three sons: one of them, plaintiff, now come to man’s estate; another, defendant Eeid S., is yet a minor — one died. In 1900 Mrs. Turner died. It is difficult to describe precisely the attitude of Mr. Anderson to the Turner boys. He visited his daughter, Mrs. Turner. There is faint testimony inferentially indicating that he wished to conceal these visits from his wife, but there is cogent testimony to the contrary. He gave Mrs. Turner a house and lot in Independence, valued at $4500. But he was not generous or affectionate in his treatment of his grandsons. He refused financial aid to one of them in a trip west. If he made them presents they were small and wide apart. But the record is barren of any evidence worth while that Mrs. Anderson influenced him in his bearing or relation to them. If she was remiss, it was the remissness of indifference. Between them and her there were no friendly relations. The cause must be left to speculation. Doubtless, if found, it would be seen to be uncomplimentary to either side, and the blame for her part of it would rest on her shoulders, and for theirs would likely originate in the feelings of their parents. Mr. Anderson was not profuse in his gifts to Nellie but he took a kindly interest in her welfare. There are facts from which it might be inferred that some, of these gifts were furtive, and that he did not want his wife to know he had given them. On the other hand, there is testimony that she never interferred with his attentions to her, or undertook to dam up the flow of his natural affections. Two children were born to Anderson by his second marriage, both of them yet minors. At a certain time he took them and their mother to Europe. Something is made of this trip as tending to show the hostility or callous in•difference of defendant, Mary W., to her stepchild and her influence over her husband. At the time of that trip Mrs. Turner was incurably ill with a swiftly developed consumption, and her doctor informed Mr. Anderson she would not be likely to live until his return. He expressed solicitude over taking the trip •and gave as an excuse that he did it to please his family. He took it and she died in his absence. On the other side, it is an unquestioned fact that at that time Anderson’s health was broken and he was afflicted with an insidious and incurable nervous disease demanding rest, recuperation and medical attention. He was in charge of an eminent specialist, who suggested the trip and went with him to Europe. We think if he went to please his family, as he said, the family pleasure might well spring from natural solicitude over his own condition. He owed a divided duty, choosing to go to Europe with his physician. Before he went he made his will on June 20, 1900. At the time of his death he was seized of an estate, real and personal, valued at $310,000. We get the impression 'that it was practically of the same value at the time of that will. By that will, after giving the bulk of his estate to his wife and two sons, he divided the ‘residue into five parts, giving one to his wife, one to each of his two sons, one to Nellie and one to Mrs. 'Turner. We have no data to determine the value of the residuary estate under the first will, but the case runs on the theory on both sides that it was considerable. In November, 1903, he made a codicil to that ‘will adding to the legacy of his son- Mathew William, giving some directions in regard to the disposition of government bonds bequeathed to both sons, and. directing by item 3 thereof, that, as Mrs. Turner had died since the execution of his will, he gave and de'vised unto her children the part of his estate devised 'to her by the principal will. He nominated his wife -as executrix and requested that no bond be required of her, otherwise confirming his last will and testament. Subsequently, one of the three sons of Mrs. Turner died, and there is some testimony indicating that Mr. Anderson became solicitous about Turner inheriting from his sons, and that his old-time chronic feeling against him was operating in his mind. We shall have more to say presently about the physical and mental condition of Mr. Anderson for four or five years preceding his death. Suffice it to say now his disease, as said, was an incurable nervous disorder, had made inroads upon his mind and body. He was a sick man, suffering from an aggravated hernia and epilepsy. Two years after adding the aforesaid codicil (viz., in 1905), he made a new-will.

We will not set it forth in so many words. Summarizing it, the principal beneficiaries, as in the former will, are his wife and two sons. His two grandsons no longer participate in the residuary fund, but each of them receives the sum of $5,000. . The residue is then divided into four parts, one to his widow, one each to his two sons and one to his daughter Nellie. There is a forfeiture clause in which it is provided that if any of his heirs in person or by guardian or next friend institute a contest, such contestant shall receive nothing, but his bequest shall merge into the corpus of the residuary fund. It is estimated by learned counsel for respondent that under that will the -widow gets $88,000, each of the two sons $88,000, Nellie $35,000, while the Turner boys together get $10,000. Such estimated distribution is not controverted by appellants’ counsel. That will was drawn by his attorney, Mr. Clements, and witnessed by him and by his physician, Dr. Twyman. Mr. Clements was his trusted legal adviser of long standing and drew the former will and its codicil. There is not a particle of testimony that Mrs. Anderson was instrumental in procuring or drawing the 1905 will or in any wise hovered over the transaction. She did not appear in connnection with the consultation before it was drawn. The consultations were those usual when weighty and confidential matters are discussed between client and attorney and were held in the attorney’s office. Neither had she part or parcel in the preparation or genesis of the original will or its codicil so far as this record discloses. There is no testimony she managed his business affairs or dictated his course in business matters. To the contrary, there is testimony that he and his agents managed his affairs. She did not. There are indications that he confided to her the contents of the will after it was written, but such confidence was natural. When the rough draft was drawn, he took it with him to think over, and the next morning returned it and ordered the forfeiture clause inserted. We may not infer, in the absence of an iota of direct or inferential proof, that she saw the draft or was the author or instigator of that clause. She appears in this record as a faithful wife, worthy her husband’s confidence. If she got it, the law accords with human nature in permitting him to give and her to get. There are sundry unpleasant incidents mentionable (some reflecting on one, some on the other side of this controversy), earmarking the exceeding bitterness of the quarrel, but they do not affect the merits.

The question, then, is this: Under such record was plaintiff entitled to go to the jury on the theory the will was the product of the undue influence of Mrs. Anderson? We think not.

Conceding to plaintiff that the mind of testator was weakened by the ravages of disease and that a weakened mind may bé more easily influenced than a strong one, precisely as the wind that bends a willow or breaks a weakling spends itself harmlessly upon the oak, yet to break a will for undue influence, there must be evidence of substance tending to show that the influence of another was operated and undue in order to make the paper writing, presented for solemn prohate as a will, the will of another, and not that of testator. The proof of influence alone is not sufficient. It must he undue. Nay, the proof of such overmastering influence of one spouse over another as might mould and guide the will of the other is not sufficient. There must be evidence that such influence was brought to bear, and that the effect was produced or sprang naturally by way of inference from facts proven. Conceding that undue influence cannot as a rule be proven by direct and positive testimony, but oft must needs rest in inferential proof, yet we have read this record in vain to find such inferential proof. Undue influence to be effective in breaking a will should be of sufficient potency to destroy the free agency of testator at the time of making the will. The influence of natural affection is not sufficient; for natural affection may flow at all times and its waters are under no ban known to the law. The undue influence that will break a will must be present, in active exercise and rise to the mark of such overpersuasion, coercion, force, fraud or deception, as breaks the will power of testator and puts in its stead the will of another. [Teckenbrock v. McLaughlin, 209 Mo. l. c. 521, and cases cited; Pulton v. Preeland, 219 Mo. 494.] We have time and again taken occasion to say that the only object of the Statute on Wills is to permit the owner of property to take it out of the Statute of Descents and Distribution, and to dispose of it unequally by his domestic decree, in which decree he sits as a chancellor on the equities of his heirs and his own domestic affairs. An unnatural will cannot be broken merely because unnatural. Its harshness and unnatural features only operate when coupled with present facts tending to show undue influence when that is the issue, or testamentary incapacity when that is the issue. A testator when writing his will need not write It as a supplication to a jury, viz.: “I wish my property to go so and so, and hope that a jury will upon the subject think the same as I do, and confirm my act.” [Lynch v. Doran, 95 Mich. l. c. 409; Conner v. Skaggs, 213 Mo. l. c.. 249; Meier v. Buchter, 197 Mo. l. c. 86, et seg.]

We are of opinion the court committed error in refusing the instructions offered by appellants taking from the jury the issue of undue influence. Respondent’s case in that behalf rests, we think, on a fog of suspicion and conjecture; and the jury’s verdict, absent testimony of any probative value tending to show undue influence, must be referred to a natural human sympathy for grandsons cut off from their mother’s share in an estate ample in their ' opinion for the wants of all the heirs if equitably distributed.

II. Of testamentary incapacity.

The court below determined the question of testamentary capacity as a matter of law on the evidence educed and took that issue from the jury. As we have determined that the judgment cannot stand on the issue of undue influence found in favor of contestant, we are confronted with the question whether we will reverse and remand the case generally or reverse and remand with directions to probate the will. Sometimes we have done the latter. [McFadin v. Catron, 138 Mo. l. c. 227; Story v. Story, 188 Mo. l. c. 129; Hamon v. Hamon, 180 Mo. l. c. 702, are samples of such disposition of cases.] In Bradford v. Blossom, 207 Mo. l. c. 234, we reversed a judgment establishing a will, and gave directions to enter one rejecting the will. It is not worth while to discuss the questions whether there is anything so peculiar about a will case that appellate courts .refer-to those pecularities as grounds for so adjusting their judgments and mandates as- to attain the ends of justice, or whether the practice in that behalf is referrable alone to statutes regulating the disposition of cases on appeal. It is sufficient to refer to the practice and let it stand as its own reason. It is also settled practice to reverse and remand for a new trial generally where that course meets the ends of refined justice. The statute-says (R. S. 1909, sec. 2083) that we shall award a new trial, reverse or affirm the decision of the circuit court, or give such judgment as such court ought to have given as to us shall seem agreeable to the law. The practice under that statute has been flexible-enough to permit the award of a new trial on the whole case, or on a certain issue, or to retry by eliminating pointed out errors, or to retry on a certain theory of the law, or by including or excluding certain evidence. [Donnell v. Wright, 199 Mo. l. c. 317.]

In this case contestant took no appeal. He was not “aggrieved by the judgment of any circuit court in any civil cause” (R. S. 1909, sec. 2083), and therefore could not appeal. He was not entitled to a bill of exceptions to be brought here for review. If he had taken his exceptions and had them preserved in a bill,, that bill would have lain below on the appeal of proponents. [Patterson v. Patterson, 200 Mo. l. c. 342, et seq.] In such condition of things, if we refuse to-consider the testimony on testamentary incapacity our refusal would amount to one of two things, viz. i Thereby we would (1) indirectly (willy nilly) sustain the ruling taking that issue from the jury whether we were of opinion it was right or wrong; (2) or (if we conclude it was wrong) we would turn contestant out of court without a just determination of that issue — a theory palpably abhorrent to refined justice. In this case we are relieved from all embarrassment by the fact that appellants necessarily brought the testimony relating to testamentary incapacity to» this court for our consideration. It was an essential element in the determination of the question of undue influence. We have read that testimony with pains. Undoubtedly there was testimony, and a good deal of it, which, if the jury believed, would result in a verdict sustaining this will on the theory that testator had a testamentary mind. On the other hand, we cannot shut our eyes to the fact that there is testimony plainly tending to show that his mind was impaired. He was an old man. For many years he had not only been afflicted with hernia but with epilepsy. Epilepsy is a disease of the brain. It frequently develops into a disease of the mind, and lowers away the ethical or moral sense. In old people it progresses, according to some of the testimony, into senile dementia when it becomes a falling sickness, is attended with convulsions and spells of unconsciousness, as was the case' here. The testimony shows two forms of it, one petit mal — a little sickness — another grand mal — a great sickness. Testator for years was afflicted with both kinds. lie lost greatly in weight. There was evidence on the part of contestant tending, we think, to show that his mind was affected certainly at times, and, we think, some of it tends to show permanently. In the face of a new trial we deem it the wiser course not to discuss the testimony and give our impressions of it in detail. Testator clearly was not the business man he had been. His business sense had become whimsical and poor. He kept a great estate to the end, but he had powerful aid in competent agents. Under some of the testimony, his personal attention to and knowledge of his affairs and property were of such sort toward the close as indicated a wandering and weakened mind — a mental reckoning lost. To prevent a strangulated hernia, he submitted to a major surgical operation and died as the result of an epileptic convulsion without recovering from the effects of an anesthetic administered by the surgeon.

To have a mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of Mm, their capacity and necessities. He should háve active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one. [Crum v. Crum, 231 Mo. l. c. 638, et seq., and cases cited; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. l. c. 699; Meier v. Buchter, supra.]There is a question (debatable, but here) on this record whether testator had a mind of that kind.

Our conclusion is that the cause should be reversed and remanded generally for a new trial. If contestant’s case at that retrial, on the question of undue influence, is not supported by more substantial evidence,- it should not be submitted to the jury. If contestant at that retrial is able to make substantially the same case (or a better one) on the question of testamentary incapacity, that issue should be left to the arbitrament of the triers of the fact.

Accordingly, the judgment is reversed and the cause remanded for a new trial in accordance with Mews herein expressed.

All concur.