text:
    WILLIAM A. HOWARD, Appellant, v. HENRY P. P. BROWN.
    Division One,
    June 19, 1906.
    QUIETING TITLE: Accounting: Premature Appeal. In a suit to quiet and determine tbe title to land, the court cannot make an accounting between the parties or appoint a referee to take the account. When the court has ascertained the interests each party has in the land it exhausts its jurisdiction in such cause, and if it goes further and appoints a referee to adjust the accounts between them, an appeal may be taken without waiting for the referee to report, and that appeal is not premature.
    Appeal from Buchanan Circuit Court. — Hon. G. A. Mosman, Judge.
    Reversed and remanded (with directions).

      Grant 8. Watkins and W. B. Busk for appellant.

      W. H. Haynes for respondent.
   VALLIANT, J.

This is a suit of the same nature, between the same parties and resting on the same facts as in the case of Howard v. Brown, just decided, and reported at page 36 of this volume, except that the subject- of this suit is lots 5, 6 and 7 of block 1 of Landis & Hull’s Addition to the city of St. Joseph, which are the lots referred to in the contract Exhibit A, as having been sold by the administrator to Shoup, and except also that the plaintiff derives title to these lots through a deed of trust in which Parmelia Brown was one of the grantors to secure a note of $1060 to one Hoagland and a deed from the trustee to plaintiff foreclosing that deed of trust. This cause was tried in another division of the Buchanan Circuit Court from that in which the other suit was tried and before another judge. The decree in this case was that the defendant was entitled to one-eleventh, interest in the land and one-fifth interest in whatever surplus there might he in the proceeds of the sale of the property when disposed of under the terms of the contract Exhibit A, and ordered that the cause be referred to a referee to state an account between the parties to ascertain if there was a surplus and how much. From that decree the plaintiff appealed. Respondent moves the court now to dismiss the appeal because there was no final judgment.

We have already held in the other case following Seidel v. Cornwell, 166 Mo. 51, that the only subject of jurisdiction under the statute to quiet title, section 650, Revised Statutes 1899, was the title to the land in question, that the accounting between the parties growing out of the performance of the contract Exhibit A was beyond the scope of the jurisdiction of the court in this case; it therefore follows that when the court entered a decree adjudging that the defendant held title to an undivided one-eleventh of the land, leaving the plaintiff ten-elevenths and giving judgment for defendant for costs, it exhausted its jurisdiction and the further order looking to a reference and an accounting was a nullity.

The decree declaring the title to one-eleventh in the defendant was a final decree from which the plaintiff had a right to appeal. The motion to dismiss is therefore overruled.

The trial court construed the contract Exhibit A as giving a title to one-eleventh of the land to the defendant and one-fifth of the surplus proceeds. That is not correct. The clause of the contract specifying the interest of the defendant follows that part of the instrument which provides for the vesting of the title to the land in John Howard in trust, and which specified that after the sale of the property and payment of the indebtedness the surplus, if any, is to be divided pro rata between the parties “as follows.” Then follows the statement that the defendant has one-eleventh interest more than the others, £ £ and that after the said one-eleventh interest is taken out that the balance remaining he'holds an undivided one-fifth interest of any surplus of said estate.” The ££balance remaining” must mean the balance remaining of that out of which the one-eleventh is first taken, that is, the surplus of the proceeds. Taking out one-eleventh of a thing leaves ten-elevenths of the same thing, therefore taking out one-eleventh of the land would leave ten-elevenths of the land, not ten-eleventh of the surplus of the proceeds, yet the language of this contract is that after taking out the defendant’s one-eleventh interest the remaining surplus of the proceeds is to be divided between the parties, one-fifth each.

"What we have said in our opinions in the other case in reference to the deed taken by the plaintiff from the administrator of the estate of Parmelia Brown deceased applies as well to the deed taken in this case by the plaintiff from the trustee at the sale under the deed of trust; it passed the title to the plaintiff in trust, subject to whatever equities the defendant may have under the contract Exhibit A, and in the accounting to he had under that contract the plaintiff will be entitled to be reimbursed for the amount paid for the purchase at that sale before any division of surplus of proceeds as called for in the contract.

The title to the property is in the plaintiff and the only interest the defendant has, if any, is his share in the proceeds as specified in the contract Exhibit A.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree in this case affecting the lots 5, 6 and 7 of block 1 of Landis & Hull’s Addition to the city of St. Joseph in all respects like that directed to be entered in Howard v. Brown, just decided, between the same parties affecting lot 4 of the same block.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. HOWARD et al., Appellants, v. GORDON et al.
    Division One,
    June 19, 1906.
    1. SPECIAL ROAD DISTRICTS: In Counties Having Township Organization. Article 10 of chapter 151, Revised Statutes 1899, in reference to special road districts, does not apply to counties which have adopted township organization. The provisions of that law apply to counties having county organization pure and simple.
    2. -: -: Different Legislative Intent. A legislative intent to make article 10 of chapter 151 applicable to counties having no township organization, and the township organization act applicable to counties having township organization, is apparent from the face of the acts themselves, as is shown by an examination of the distinct and diverse governmental operation prescribed by each. And where such legislative intent is' clearly gathered from the acts themselves, nothing further need be done by the courts than to declare such intent.
    3. -: -: Construction By Legislature. The act of 1901 (Laws 1901, p. 237) was a legislative declaration that article. 10 of chapter 151 is not to apply to counties which have adopted township organization.
    Appeal from Vernon Circuit Court. — Son. J. B. Johnson, Special Judge.
    Affirmed.

      Scott & Bowlcer for appellants.
    Whenever any of the territory in a county is organized into a special road district, under and by virtue of the provisions of article 10 of chapter 151, Revised Statutes 1899, the road commissioners for such special road district become entitled to the absolute control of the roads in said district; and become entitled to the tools, machinery, and funds belonging to said district. Secs, 9609, 9610, R. S. 1899. The relators in this case were entitled to proceed by mandamus under the facts in this case. State ex rel. v. Dougherty, 45 Mo. 294; State ex rel. v. Renick, 157 Mo. 292.

      Homer M. Poage and Irvin Gordon for respondents.
    (1) The allegations of the alternative writ of mandamus fail to show that there is ahy law or statute requiring or making it the duty of the respondents to pay over any money or to deliver any property to relators. Mandamus lies to compel the performance of a plain duty, and the writ will issue only when the relator has a clear right to the relief sought and no other remedy. State ex rel. v. Newman, 91 Mo. 451. (2) Mandamus will not issue where it is doubtful whether respondent has the right by law to do the act sought to be compelled. 13 Am. and Eng. Ency. Law, 493. 494. (3) It is impossible to enforce the provisions-of article 10, chapter 151, Revised Statutes 1899 (special road district law) in counties having adopted township organization, and it was therefore not the intention of the Legislature that the same should be applicable to such counties. (4) In construing a statute the effect and consequences of the law may properly be considered as an aid in ascertaining the' probable intention of the lawgiver as expressed in it. Bower v. Smith, 111 Mo. 45; State ex rel. v. Slover, 126 Mo. 652.
   GRAVES, J.

Relators, who constitute the commissioners of “The Nevada Special Road District” in Vernon county, Missouri, bring this action of mandamus to compel respondents, who constitute the township board of Center township, in said county, to turn over to them five-sixths of twelve hundred dollars and five-sixths of certain other personal property alleged to be held by said respondents for the road districts of said Center township. The petition was filed at the May term, 1905, and the alternative writ issued. Respondents filed motion to quash the alternative writ, which being by the court sustained, relators appealed to this court.

The alternative writ is lengthy and in substance the facts recited therein, which were taken from the petition, are as follows: That on November 8, 1898, Vernon county adopted the Township Organization law, and from that time on has been and still is acting under that law; that on January 17, 1905, at an election held for that purpose, article 10 of chapter 153, Revised Statutes 1899, was duly adopted by the voters in a special road district composed of congressional sections 19 to 36 inclusive, in Washington township (being congressional township 36, of range 31), and congressional sections 3. to 30 inclusive, in Center township (being congressional township 35, of range 31), and also congressional sections 1, 2, 11, 12, 13,14, 23, 24, 25 and 26 in Deerfield township (being congressional township S5, of range 32), and also congressional sections 23, 24, 25, 26, 35 and 36 in Lake township (being in congressional township 36, of range 32), all in Vernon county, Missouri, being a district eight miles square; that there was in said district a city containing 7,461 inhabitants, the city of Nevada; that said district created as above, and composed of the territory as above indicated, organized according to law under the name of ‘ ‘ The Nevada Road District; ’ ’ that the relators were the duly appointed commissioners of said road district, W. D. Howard being chairman, H. M. Duck, treasurer, and D. L. Thornton, secretary; that the respondents were the duly elected and qualified members of the township board of Center township, five-sixths of which territory was included in said road district; that said township board, through its treasurer, C. A. Tater, had and held as a road and highway fund of said township the sum of $1200 in money; that said township board also held a lot of tools and machinery, for -working the roads of said Center township; that the relators had demanded five-sixths of said money and five-sixths of said tools and machinery, which demand was refused by respondents; and the said alternative writ closed with the usual order to deliver the property and money or to appear and show cause why the same should not be done.

The motion to quash the alternative writ chai- ■ lenges, first, the sufficiency of the facts recited; and, secondly, the failure of the relators to state and allege that they had no other adequate remedy.

The foregoing sufficiently sets out the pleadings and facts for all necessary purposes.

The principal question presented is whether or not article 10, chapter 151, Revised Statutes 1899, and acts amendatory thereto, apply to counties which have adopted or may adopt what is known as the Township Organization law, being chapter 168, Revised Státutes 1899. If not, then the motion to quash the alternative Arit was properly sustained on that ground alone, and it is not necessary to seek further. We are of the opinion that article 10, supra, does not apply to counties having township organization. It is true that article 10 of chapter 151 has for its subject and relates to roads, highways and bridges as also does article 14 of chapter 168-. In fact, all of chapter 151 relates to roads and highways and article 10 to the organization of special road districts. Article 14 of chapter 168 is the road law in counties having township organization. In reaching the conclusion we have reached, as above, we have noted the origin of the several road statutes and what seems to us the legislative intent at the time, as appears from the statutes themselves. The first reasonably complete draft of chapter 151 appears in Revised Statutes 1835, page 544, although crude fragments thereof previously appeared in the statutes of 1825, volume 2, page 688, and even in previous acts. Chapter 168, including article 14 thereof, first appeared, in substantial form as now, in the laws of 1871-2, at pages 180 to 211, inclusive, which is the original Township Organization law, the act being approved March 18, 1872. Express constitutional authority for a township organization law does not appear until the Constitution of 1875, in sections 8 and 9 of article 9 thereof, although there was no constitutional inhibition against such a law, and the act of 1871-2, neither in spirit nor letter, was violative of constitutional provisions. In 1879, the act of 1871-2 was practically re-enacted (Laws 1879, page 2.18) and this, with the subsequent amendments thereto, constitute the present chapter 168, or the Township Organisation law.

From an examination it will be seen that chapter • 151 was first adopted when the legislative mind had no conception of township organization, and upon its face the act clearly discloses the legislative intent to make it apply to counties as a whole and not to subdivisions thereof. No amendments since made to it evince a different intent, but on the contrary each subsequent amendment and change would tend to indicate that the legislative mind had in view a law, the provisions of which should apply to county organization, purely and simply.

On the other hand, chapter 168 and the various acts amendatory thereto and thereof, clearly point to the legislative intent to make this particular code of laws applicable to counties having township organization, as first conceived by the legislative act of 1871-2. The two systems are so widely divergent that one general law cannot be made applicable to both, although each system must of necessity embrace laws touching the same subject, as for instance, roads and highways, as in the statutes under consideration in the case at bar.

On examination of chapter 151, of which article 10 in question is a component part, there will be found provisions which could not be carried into effect in counties having township organization under chapter 168. For instance, section 9619 of article 10 provides for a county court, not for a township board, to levy a poll tax for road purposes, and a property tax for road purposes, such property tax to be not less than ten nor more than twenty cent's on the $100 valuation, whereas under section 10324, the Township Organization law, the levy must be made by the township board and not by the county court, and upon property a tax not exceeding twenty cents on the $100 valuation can be levied. The methods of getting the poll tax lists are different; the methods of collecting, and the officers to collect, are different; a contract system is provided for by both statutes, but are so essentially different that the governmental agencies under the one would have no authority under the other.

In the case at bar, if Vernon county did not have township orginization, the county court and other county - officers would assess and collect the revenue for this road district, and the levy would be not less than ten nor more than twenty cents on the $100, but under township organization as now in force in Vernon county, there would be in this particular case four distinct bodies fixing the road tax for this one district. The district is made up of territory from four municipal townships. Under the law one township might rightly levy five cents on the $100 valuation for road purposes, the second township levy ten cents, the third township fifteen cents, and the fourth township twenty cents, all being within the purview of the Township Organization act, and legal in so far as that act is concerned. Under this state of affairs property in the same road district, and for one and the same purpose, could be and in many instances would be, assessed differently, which would be clearly a violation of the law and such violaiion of law was never contemplated Tby the lawmaking power. Again we would have fractions of townships operating under different systems of law. In this case five-sixths of Center township would operate under one law and the remaining one-sixth under another law. Five-sixths would he under chapter 151 and one-sixth under chapter 168. The Legislature never had in mind such condition of affairs.

A great number of differences and discrepancies as strong as the foregoing could he pointed out, but these are sufficient. The two systems are so clearly distinctive that one must conclude a legislative intent, from the acts themselves, to make the one applicable to counties having no township organization, and the other to counties having township organization.

"Where the legislative intent is clearly gathered from the acts themselves, nothing further need be done by the courts but to declare such intent, and in this instance we hold that the Legislature never intended that article 10 of chapter 151 should in any way apply to counties having township organization. But were it necessary to look beyond.the words of the acts for their meaning and construction, we find a clear legislative declaration in section 9696y of the Laws of 1901, page 237. This act was and is amendatory of chapter 151. The section above mentioned is in the words following:

“Section 9696y. — Construction of this Act. All acts or parts of acts inconsistent with this act are hereby repealed: Provided, that nothing herein contained shall be construed as repealing or altering any law which is or may be in force in counties which have adopted or may adopt township organization, nor as repealing or altering any law which is or may he in force in districts organized as special road districts according to an act entitled ‘An act to provide for working and improving the public roads by organization of special road districts,’ approved March 9, 1895,- nor as affecting counties in this State which have now or may hereafter have a population of 100,000' inhabitants or more, nor any counties which now have or may hereafter have an assessed valuation of $25,000,000 or more, nor as repealing sections from 9424 to 9445, inclusive, of article 1, chapter 151, of the Revised Statutes of 1899.”

This section is a clear legislative construction showing that the lawmaking power recognized several separate, distinct and different systems of road laws in the State, among them the system of laws provided for in the Township Organization act, for counties adopting the same. Again in 1905 (Laws 1905, p. 278), in section 9696vv, a similar recognition is found as in the act of 1901, supra.

We therefore hold that chapter 151, and all the acts amendatory thereto and thereof, apply to counties not having township organization. It follows that the trial court committed no error in sustaining respondents’ motion to quash the alternative writ and the judgment herein should he and is affirmed.

All concur.


author: VALLIANT, J.

text:
    CATHERINE CASEY, Appellant, v. HOOVER and WROUGHT IRON BRIDGE COMPANY.
    Division One,
    June 19, 1906.
    1. FOREIGN STATUTE: Right to Sue in This State: Widow: Administratrix. The plaintiff, as widow and as administratrix, sues residents of Missouri for damages for the death of her husband, a resident of Oklahoma, due to defendants’ negligence. The Oklahoma statute says that “when the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, and the damages must inure to the exclusive benefit of the widow and children, if any, or next of kin,” and in all cases where the deceased was a resident of'this Territory and “no personal representative is or has been appointed, the action may be brought by the widow.” ' Held, that the widow, by qualifying as administratrix of her deceased husband’s estate, has precluded herself from suing as widow, and at the time the suit was brought she did not have the right, under the laws of this State, to sue as administratrix.
    2. PERSONAL REPRESENTATIVE: Meaning. The term personal representative ordinarily means administrator or executor, and will not be held to mean widow unless there is something in the context to indicate a legislative intent to give it " a wider meaning.
    Appeal from Jackson Circuit Court . — Hon. Shannon G. Douglass, Judge.
    Affirmed.

      G. F. Mead for appellant.
    Plaintiff had legal capacity to sue. Jones v. Railroad, 178 Mo. 528. The term representatives includes widow, heirs, distributors, assigns, etc. Heirs of Mullanphy v. Simpson, 4 Mo. 1; Loos v. Ins. Co., 41 Mo. 540; 18 Am. and Eng. Ency. Law (2 Ed.), 818, 819. William Casey, had he lived, could have maintained this action. Casey v. Hoover, 89 S. W. 330.

      Eajf é Michaels and L. W. McGandless for respondents.
    (1) The right of action to recover damages for injuries resulting in death is entirely statutory; and the action, whether brought in the State creating the right or in any other State, must be brought by the very person and no other to whom the right to sue is given by the statutes of the State where the injuries are inflicted. McGinnis v. Car and Foundry Co., 174 Mo. 225; Railroad v. Babcock, 154 U. S. 190; Jones v. Railroad, 178 Mo. 528; Coover v. Moore & Walker, 31 Mo. 574; McNamara, v. Slavens, 76 Mo. 329; Barker v. Railroad, 91 Mo. 86; Oates v. Railroad, 104 Mo. 514; Packard v. Railroad, 181 Mo. 421. (2) The words “personal representatives,” as used in the Oklahoma statute, mean the “executor or administrator.” Vawter v. Railroad, 84 Mo. 679; Oates v. Railroad, 104 Mo. 514. (3) Statutes giving a cause of action to certain persons, or classes of persons, successively, to recover damages on account of the death of a decedent, do not give a joint cause of action to all persons enabled to sue, but an exclusive right to sue to the designated beneficiaries in order. McNamara v. Slavens, 76 Mo. 329; Cole v. Mayne, 122 Fed. 836.
   VALLIANT, J.

Plaintiff sues to recover damages for the death of her husband caused, as she alleges, by the negligence of the defendants. The alleged wrong occurred in Oklahoma and the suit is founded on a statute of that Territory as follows: R. S. Oklahoma, sec. 4313, par. 435:

“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars,, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. ’ ’

Section 4314, par. 436; Code:

££ That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section four hundred and thirty-five of this chapter, is or has been at the time of his death in any other State or Territory, or when, being a resident of this Territory, no personal representative is or has been appointed, the action provided in said section four hunfired and thirty-five may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”

In her petition the plaintiff assumes to sue in three separate capacities, as widow, as administratrix of the ■estate of her deceased husband appointed and qualified in Oklahoma, and as the appointee of the circuit court in this State to bring this suit for the benefit of herself and her minor children.

The petition in due form states a cause of action under the Oklahoma statute if it states facts showing that the plaintiff has legal capacity to sue. Defendants filed a special demurrer to the petition on the ground that it shows that the plaintiff has not legal capacity to maintain the suit.

The petition states that her husband at the time ■of his death was a resident of Oklahoma and that she now resides there, the defendants are non-residents of Oklahoma, and therefore beyond the reach of process in that Territory and for that reason she cannot sue them there. The suit was begun before the decision of this court in McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225, and the plaintiff’s appointment and authorization by the circuit court to maintain the suit was under section 548, Revised Statutes 1890, which this court in the McGinnis case decided was invalid. It was after that decision that the demurrer came on to be heard and, doubtless being guided by that decision, the court ■sustained the demurrer and the plaintiff appealed.

Plaintiff does not now contend that she can maintain the suit by virtue of her appointment under section 548 or by virtue of her appointment as administratrix in Oklahoma, but she claims that under the law as declared in Jones v. Railroad, 178 Mo. 528, she is entitled to sue in the capacity of widow.

In the McGinnis case the suit was founded on a statute of Illinois similar to the Oklahoma statute, but with this difference, the Illinois statute conferred the right to sue on the personal representatives only of the deceased, for the exclusive use and benefit of the widow and next of kin.

Our statute, section 548, was aimed to meet such a case and it provided that when the foreign statute did not confer the right to sue on those for whose benefit the suit was to be brought, a court in this State (where the suit might, under section 547, be brought), was authorized to appoint some one for that purpose and he by virtue of such appointment might sue. McGinnis was appointed under section 548. But this court held that inasmuch as the right of action was created by the Illinois statute alone, no one could sue except the one upon whom that statute conferred the right, and that therefore section 548 was invalid.

Jones v. Railroad, 178 Mo. 528, was founded on a Kansas statute of which the Oklahoma statute seems to be a literal copy, and which differs from the Illinois statute in this important particular, it confers right to sue on the personal representatives of the deceased, but it provides that if the deceased at the time of his death was not a resident of Kansas, or, being a resident, if no administrator of his estate was appointed, the widow might sue and if no widow then the next of kin. In that case the deceased was killed in Kansas, but his residence at the time of his death was in Missouri, and there was no administration on his estate. The widow in that case had herself appointed as next friend to her infant child and brought suit in her capacity as widow and also in her capacity as next friend of her child. We held that the widow could maintain the suit in her capacity as widow alone because the Kansas statute gave her that right, that the sum recovered was for the benefit of herself and child as the Kansas statute declared, and that when she sued as widow she was in legal effect suing as a trustee of an express trust, and whilst she need not have joined her child in the suit as co-plaintiff, yet she was not prohibited doing so and therefore the petition was not defective for misjoinder of parties.

Under the law as declared in those two cases no one can maintain a suit to recover under the foreign statute except one upon whom the foreign statute confers the right. We denied McGinnis the right to sue because the Illinois statute did not give him such right and we allowed Mrs. Jones to maintain her suit as widow because the Kansas statute gave her that right. The doctrine in the Jones case was re-affirmed in Lee v. Railroad, 195 Mo. 400.

There is, however, this difference between the Jones case and the case at bar: in the Jones ease the deceased was a resident of Missouri, and there had been no administrator of his estate appointed in Kansas, whereas in the case at bar the deceased was a resident of Oklahoma and an adminstrator of his estate has been appointed in Oklahoma. The statute of Oklahoma, like the statute of Kansas, confers the right to sue first on the personal representatives of the deceased and it is only in case the deceased was a non-resident of Oklahoma or being a resident of that Territory there was no administrator of his estate appointed there, that the right to sue was given to the widow or next of kin.

The plaintiff by qualifying as administratrix of her deceased husband’s estate has unfortunately for herself created the condition which under the Oklahoma statute precludes her from suing as widow.

It is said in the brief for the plaintiff that the term “personal representatives” ought not to be limited to executors and. administrators, but ought also to embrace widows. The term ordinarily means only executors and administrators, and therefore it should be so construed unless there is something in the context that indicates that it was used with a wider meaning. There is nothing in the context of this statute to indicate any such idea, in fact, the words “when, being a resident, no personal representative is or has been appointed,” shows that the lawmaker had in mind a representative who was to become so by appointment.

The fact that the defendants are beyond the reach of process in Oklahoma may be unfortunate for the plaintiff, but that cannot alter the statute.

Since the decision in the McGinnis case the General Assembly has, doubtless with a view to that decision, amended the law so as to allow a foreign executor or administrator in such case to sue here (Laws 1905, p. 95), but we are to judge the propriety of the ruling of the circuit-court sustaining the demurrer to the petition by the law as it was when the court made its ruling and by that law the ruling was right. The judgment is affirmed.

All concur.


author: LAMM, J.

text:
    ANNA S. MEIER et al., Appellants, v. CHRISTINA J. BUCHTER et al.
    Division One,
    June 19, 1906.
    1. WILL: Undue Influence: Helpless Daughter: Change of Testator’s Attitude: Unnatural Disposition: Question for Jury. The large question presented by the will contest touches testator’s only unmarried daughter, a deaf mute, toward whom, when left to himself, he felt the attachment and responsibility due to her helplessness, her dumb faithfulness and his duty. His other seven children were married, and to them he had made advancements, from $1,500 to $3,500 each, and by his will he left, out of the estate of about $21,000, to three of them $50 each, gave to the afflicted daughter about $2,150 in trust for life, and the residue of the estate equally to four other children, one of whom, after she had separated from her husband about 18 months prior to the testator’s death, made her home with her father and the afflicted daughter, and began to poison his mind towards her, accusing her of stealing from him. Up to that time, the afflicted daughter had for five or six years been his housekeeper, he treating her with tender affection, their dispositions being compatible, but thereafter the afflicted daughter’s life became clouded and unhappy. About ten days before the will was made, after he had become afflicted physically and mentally, she was taken to the city hospital, and from there some days later to an insane asylum, but who was the procuring cause of this is not shown, but there is no evidence that he consented to have her taken from him or that he was aware of the purpose or significance of the act. Attended and supported by two daughters who were made residuary legatees, he was taken to the office of their business agent, who drew the will, and the next day they gave it out that they had taken him to see a doctor, but that he had made a will was kept a secret, and when he died, two months later, aged eighty years, the daughters given $50 were not notified, and one of them who lived to the country learned of his death on her usual Sunday visit, after he had been dead for two days. Held, first, that it cannot be seen how the testator could have become estranged from the afflicted daughter unless he had lost his own mental equipóse through his own feebleness of mind or the machinations of others operating thereon; second, the unnatural disposition made for the afflicted daughter called for explanation; third, there was substantial evidence of undue influence and testamentary incapacity, and when that evidence is considered in connection with the unnatural disposition, the issue became one for the jury.
    2. -: Unnatural Disposition: Undue Influence: Testamentary Capacity. An unnatural disposition of property standing alone will not avoid a will, but where there is other substantial evidence of undue influence and of testamentary incapacity, both being issues, the result of such unnatural disposition may be considered by the jury along with other facts tending to show undue influence or testamentary incapacity.
    8. -: Undue Influence: Fraud Inferred: Presumption. Undue influence need not be shown by direct proof, but may be established by proof of facts from which it may be rationally inferred. Fraud is never presumed, yet it may be proved by indirect evidence, as in the case of undue influence.
    4. -: Fraud: Insufficient Pleading: Appeal. Where no contention was made at the trial that the petition was insufficient as a charge of fraud, and no motion requiring it to be made more specific was made, the appellate court will not determine that assignment made for the first time on appeal.
    5. -: Evidence: Advancements. Testimony of advancements made to testator’s .children is pertinent as tending to show an unnatural will — its weight, varying with circumstances, being for the jury.

      6. -: -: Statements of Devisees: Conspiracy. Where the petition charges that there was a conspiracy between all the contestees to procure the making of a fraudulent will, and testimony has been introduced tending to show privity of design on the part of the contestees in the concoction of the will, evidence of the statements and admissions made by some of the contestees, having “joint interests” in the result with the others, is competent. It is elementary law that when, there has been evidence tending to show that a conspiracy existed, the admissions of any one of the conspirators along the line of the conspiracy, touching its subject-matter and in furtherance thereof, is admissible. [Distinguishing Schierbaum v. Schemme, 157 Mo. 1. c. 17.]
    Appeal from St. Louis City Circuit Court. — Now. Warwick Hough, Judge.
    Reversed and remanded.

      Sterling P. Bond for appellants.
    (1) Where there is evidence, as in this case, that at the time the will was made testator was old, feeble in body and mind from sickness and old age, and had not sufficient understanding and intelligence to transact his ordinary business affairs and to comprehend the transaction then in question, the nature and extent of his property, the natural objects of his bounty and to whom he was giving the same, then he had not sufficient capacity to make a will. Aylward v. Briggs, 145 Mo. 609; Carl v. Gabel, 120: Mo. 290. (2) The plaintiffs showed that undue influence was exercised over the mind of testator, especially by his daughter, Mrs. Buchter, and also Mrs. Timmer, who assisted him to the office of their agent, who drew the will. The testimony of the defendant, Louisa M. Thomas, alone shows the undue influence of Christina J. Buchter over her father. Carl v. Gabel, 120 Mo. 296; Dausman v. Rankin, 189 Mo. 703. (3) Undue influence, like every other question of fraud or bad faith, is a question of fact, and can rarely be proved by direct or positive evidence, bnt may be established by facts and circumstances. Dausman v. Rankin, 189 Mo. 703; Carl v. Gabel, 120 Mov 297; Doherty v. Gilmore, 136 Mo. 414. (4) Where facts are proved as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves on the party charged to exonerate himself from such charge, in like manner as in the case of fiduciary or confidential relation. Christina J. Buchter and Bertha A. Timmer occupied this relation. Gay v. Gilliland, 92 Mo. 263; Carl v. Gabel, 120 Mo. 297; Gordon v. Burris, 153 Mo. 241; Dingman v. Romine, 141 Mo. 474; Dausman v. Rankin, 189 Mo. 703. (5) Any influence, howver exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in judgment is done, is undue and wrongful, and, as bearing on the question of undue influence, the relationship of the parties to each other, the mental condition of the person imposed on, and the character of the transaction should be taken into consideration. Dingman v. Romine, 141 Mo. 476. (6) The evidence shows that fraud was perpetrated upon testator in procuring the will, and fraud and deceit in its procurement vitiates a will equally as readily and completely as it does a contract or deed. Gordon v. Burris, 153 Mo. 241; Harvey v. Sullens, 46 Mo. 153; Hughes v. Rader, 183 Mo. 608. (7) A demurrer admits every material fact proven and which may be inferred from the testimony to be true, and should never be sustained where there is any evidence at all to sustain an issue. Young v. Webb City, 150 Mo. 341; Twohey v. Fruin, 96 Mo. 104; Gannon v. Gas Co., 145 Mo. 516; Gordon v. Burris, 153 Mo. 223; Baum v. Fryear, 85 Mo. 151; Noeninger v. Vogt, 88 Mo. 480. (8) The clause concerning advancements is a badge of fraud. Baldwin v. Whitcomb, 71 Mo. 659; Gordon v. Burris, 153 Mo. 241; Comstock v. Rayford, 12 S.'& M. 369;'Hants v. Shepherd, 79 Mo. 147; Hodge v. Hubb, 94 Mo. 503; Bump on Fraud. Convey., 500; Snell v. Whitcomb, 104 Mo. 188; Gerard v. St. Louis Car Wheel Co., 46 Mo. App. 97; Mabary v. McClurg, 74 Mo. 575. (9) Mental unsoundness may be inferred. Doherty v. Gilmore, 136 Mo.. 414.
    Muench, Walther $ Muench for respondents.
    (1) After the proponents had proven the execution of the will and that the testator was sane and of the requisite age, it devolved on the contestants to establish the incompetency, undue influence or fraud. Sehr v. Lindemann, 153 Mo. 276; Fulbright v. Perry Co., 145 Mo. 432; Maddox v. Maddox, 114 Mo. 35; Doherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 138 Mo. 197. (a) Undue influence must not only be shown to have existed, but it must be shown to have been actually exercised at the time the will was executed. Tibbe v. Kamp, 154 Mo. 545; Brinkman v. Rueggesick, 71 Mo. 553; Richardson v. Smart, 152 Mo. 623. (b) Affirmative proof of fraud or undue influence must be made either by direct facts shown or by facts and circumstances from which undue influence results, as a reasonable and fair inference, and not as a mere conjecture. Tibbe v. Kamp, supra; Doherty v. Gilmore, 136 Mo. 420; Riley v. Sherwood, 144 Mo. 354. (2) There was in this case no such confidential relation between the testator and any of the proponents as would shift the burden of proving- absence of fraud or undue influence to the devisees. Tibbe v. Kamp, supra; Richardson v. Smart, supra. (3) A person having sufficient mental capacity has the right to make an “unreasonable; unjust, injudicious will, ’ ’ and neither courts nor juries are justified in altering the disposition of his pi-operty, “simply because they may think the testator did not do justice to his family connections.” Tibbe v. Kamp; supra; Berberet v. Berberet, 131 Mo. 411; Aylward v. Briggs, 145 Mo. 605; Maddox v. Maddox, supra; Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 197. (4) “Fraud upon a testator consists in making that which is false appear to him to be true, and so affecting his will.” Gordon v. Burris, 153 Mo. 241; 1 Bigelow on Fraud, p. 572; Beach on Wills, sec. 107; 1 Redfield on Wills, p. 510. The issue of fraud should not be considered by this court, as the facts constituting the fraud were not pleaded by the plaintiffs as required by the decisions in this State. Story v. Story, 188 Mo. 110; Nagel v. Railroad, 167 Mo. 1. c. 96. (5) There was no error in excluding testimony as to alleged complaints by the testator of his daughter’s alleged treatment of him, as this evidence was not competent. Schierbaum v. Schemme, 157 Mo. 1; Walton v. Kendrick, 122 Mo. 504; Gordon v. Burris, 141 Mo. 602; Gibson v. Gibson, 24 Mo. 227. There was no error in excluding admissions by one or more of the defendants, as others were not bound thereby, all having separate interests under the terms of the will. Schierbaum v. Schemme, supra; Yon de Yeld v. Judy, 143 Mo. 19; Nussear v. Arnold, 13 S. & R. 328; Clark v. Morrison, 25 Pa. St. 456; Titlow v. Titlow, 54 Pa. St. 222; Shailer v. Burnstead, 99 Mass. 127. (6) Where there is no substantial evidence of incompetency, undue influence or fraud, it is the duty of the court to direct a verdict for the proponents. Southworth v. Southworth, 173 Mo. 59.
   LAMM, J.

Plaintiffs sued on May 5, 1903, to set aside the will of Theodore Albert Thomas, charging undue influence and fraud — the product of a conspiracy between proponents — and testamentary incapacity. A verdict for proponents being coerced by a mandatory instruction, nisi, contestants appeal, assigning error in the exclusion of testimony and in the giving of said instruction.

Contestants are two married daughters of decedent, Anna S. Mfeier and Emilia A. Bacher, and a son, Louis A. Thomas. The petition charged that one daughter, Louisa M. Thomas, joined with the 'other contestees in the wrongful concoction of the will, but at the trial she was used as a witness for contestants and the petition was amended by eliminating the charge as to her.

The case made is this:

Testator died September 12, 1902, .full of years, to-wit, four score, seized of realty in the city of St. Louis and owning certain chattels — all alleged as of the value of $20,000, but estimated by one witness at $21,553.31, and by another at $20,753.31 — leaving one son, Louis A. Thomas, six married daughters, to-wit, Anna S. Meier, Emilia A. Bacher, Christina J. Buchter, Bertha A. Timmer, Laura R. Kirchner and Emma L. Riddle, and one unmarried daughter, Louisa M. Thomas, and the following will, executed on the 22nd day of July, 1902:

.“I, the undersigned, Theodore Albert Thomas (a widower), of the city of St. Louis, State of Missouri, do make, publish and declare the following to be my last will and testament hereby revoking and annulling all former wills and codicils by me made, to-wit:
“Subject to the payment of my just debts and funeral expenses I dispose of my entire estate in the following manner:
“1. I give and bequeath to my son Louis Albert Thomas, and to my daughters Anna S. Thomas, wife of Henry Meyer, and to Emilia A. Thomas, wife of Louis Bacher, the sum of fifty dollars each, hereby stating that I have made to each of them numerous advancements heretofore.
“2. I give and bequeath to Louis Timmer a deed of trust recorded in book 1362 page 270’ of the St. Louis Recorder’s office, given by Herman Wilhelm and wife to Heinrich Grebes, trustee, now held by me originally for the amount of $2,400' — on which $250 was paid on principal in trust for my daughter Louisa M. Thomas to have, hold and use for her benefit for life, and after her death any amount remaining of said sum at present invested, to her surviving sisters and brother.
“3. All the residue of my entire estate, real and personal wherever situated or found, I give and bequeath to my following named four children, share and share alike, to-wit: Laura Rosa Thomas, wife of Barney Kirchner, Christina J. Thomas, wife of Emile Buehter, Bertha A. Thomas, wife of Louis Timmer, and Emma L. Thomas, wife of George Riddle.
“4. The trustee for my said daughter, Louisa M. Thomas, shall have the right to use and apply interest or principal of deed of trust thus above mentioned or paid off and reinvested by him, the interest and principal of such new investment for her support and enjoyment or any other purpose as he may see fit.
“5. Finally I appoint my said son, Louis Albert Thomas, and my said son-in-law, Louis Timmer, executors of this my last will and testament without being required to give a bond for the administration of my estate, hereby giving and granting unto my said executors full power and authority at public or private sale to sell my real estate at such price and on such terms as they may deem best.
“In witness whereof I have hereunto set my hand at the said city of St. Louis, Missouri, this 22d day of July, 1902.”

Testator, up to, say, three or four months before he died, was a gardener by occupation, digging and delving with his own hands and eating bread in the sweat of his face, vending his vegetables at a market house stall in the city of St. Louis, and seems to have been a man of vigor of body and mind, of simple and few wants, a reticent man, rather addicted to a newspaper, a mug of beer and a pipe of tobacco of the cool of an evening — a sturdy man of thrift and hard-headed business sense until disease cut him down in the May preceding his death. In May painful dropsical swellings developed in his legs, his slippers and shoes had to be ripped up to be wearable, he began to languish and pine, his pipe, his mug of beer and his newspaper were put aside, and he was plainly entering upon the valley of the shadow of death, could walk but a short distance at a time and that only with the aid of a cane and timely rests. From thence onward, Mrs. Buchter tended the garden and the market stall and collected his rents — he having tenements and tenants. Throughout June he became more feeble and silent, more tottering in his foot-steps and often needing assistance in moving about, and in this condition, about the 30th of of June, he had a “stroke,” the exact character of which is unexplained. There is evidence indicating it was a stroke of paralysis, whereby his left side, including his left arm, were affected; there is also evidence it was some form of heart trouble, causing him to fall,, and which thereafter recurred in spells of fainting. During this time, either his eyesight was affected and he could no longer read and thought he saw soot on his newspaper and soot in the air, or else he had fixed delusions of that character. During June, and thence forward after said stroke, lapses of memory and 'spells of listlessness grew frequent and noticeable. For example, he would not, until aroused, know his own children when they called to see him; he seemed to be oblivious to what passed from day to day, and no longer noticed or spoke to his neighbors when they greeted him.

Up to the time testator made the will in question, it is shown that his fatherly affection .and disposing-mind towards his children seemed by word and act to have flowed out evenly to each of them, except that he to a degree recognized and expressed a certain accentuated duty to his unmarried daughter, for reasons hereinafter set forth. It appears from the proof adduced that he had made advancements to all his married daughters in uniform sum at intervals, aggregating, say, $3,500 or $3,800 to each; to his son an advancement of $1,500; and to Ms unmarried daugMer, Lornsa M., nothing. It appears that about three years before he died he soM a substantial part of his real estate and at that time advanced sums to his married daughters, dividing the proceeds in that way, bringing the aggregate up to the amount aforesaid to each.

The unmarried daughter was handicapped by misfortune in that she was dumb, that is, practically so, though she could speak a few words. With dumbness went the allied affliction, deafness, i. e., she was substantially deaf, though she could hear somewhat and, possibly, could interpret the varying tones of the human voice indicating this, that, or the other emotion, provided the voice was a familiar voice. She had been educated for eight years at (presumably) a deaf and dumb school at Fulton, Missouri, and it is said she attended for two years at (presumably) a like school in Jacksonville, Illinois, and there graduated, thereby becoming somewhat adept in the eye-reading of language falling from familiar lips. Her mother died in 1895 and thereafter she became her father’s housekeeper, doing the cooking and attending to all the household duties except that oft and on one of her sisters came to aid in cleaning up, and except that, about a year and a half before testator’s death, one of the contestees, Mrs. Buchter, with her children, moved into one-half of the family residence and kept house there — testator and Louisa living M the other half and Mrs. Buchter from thence onward taking charge and doing the principal part of the housekeeping. There was evidence tending to show that Mrs. Buchter’s moving to her father’s house came about through her marital infelicity at her own home, she living separate from her husband who refused to support her. There was evidence tending to show that Louisa, toward the close of her father’s days, was not capable of attending to him and doing the housework; there was also evidence tending to show that up to the appearance of Mrs. Buchter in the house the relations between testator and his daughter, Louisa, were perfect in tenderness, their intercourse being what was to be expected between a father and an afflicted daughter and their dispositions compatible ; but after the appearance of Mrs. Buchter their relations became somewhat strained — she, Mrs. Butcher, complaining to her father.of Louisa’s stealing from him and by other complaints causing jars and discords, and Louisa’s life thence onward became clouded and unhappy. About the 10th of July, or say, ten or twelve days before the will was written, through means and for reasons not satisfactorily explained in this record, Louisa was taken to the city hospital, and from thence, some days later, to the insane asylum, where she was at the time the will was written and where she remained until she testified in the cause. Who was the procuring cause of her removal from her father’s sight and her father’s roof (her shelter for the forty-two years of her life) is not disclosed, but it appears that two policemen came and took her away. There was evidence indicating that Mrs. Buchter and Mrs. Timmer were present in the house at the time. One Henry Meier, husband of plaintiff, Anna S., came five minutes before Louisa was taken away. Plaintiffs offered to prove by him that Mrs. Buchter admitted having her sent away, but this evidence was excluded. Louisa says one policeman came and the father asked, “What do you come for?” and the policeman said something Louisa did not understand, whereupon the father said, “Well, she is not well, ’ ’ and the policeman said to him to get away or to get out and then the policeman locked the door and soon afterwards two other policemen came and took her away. Other than the physical fact that the daughter was removed and other than testimony that she had been looked upon and recognized in the family as “feeble minded,” the necessity of her being taken away at that time is not shown.

If the evidence of Louisa is to be believed, her father had a natural testamentary disposition towards her, having promised to give her the homestead and an estate besides. Not only so, but it is shown by her testimony that Mrs. Buehter came between her and her father and opposed and changed her father’s desire in the premises. If her evidence is to be believed, her father, physically, as well as mentally, came under the domination of Mrs. Buehter and that domination was tinged with property and testamentary hopes and designs, and exerted on that line. If other evidence is to be believed, a former will was executed which was in the possession of some of the contestees, but was not produced at the trial, and (singularly enough) its production was not called for. The size of the families of contestants and contestees was not in evidence, further than it was shown that the Timmer family was not so large as the family of the son, Louis A. Thomas. Nor was the condition in life of contestants and contestees shown further than that facts appear from which it might be broadly inferred that Louisa M. Thomas was not only without capacity for earning a livelihood, but was without means of her own and entirely dependent. It also appeared that Mrs. Buehter and Mrs. Timmer were possessed of means — at any rate, they collected rents of their own and seem to have had occasion and use for a business agent to attend to their affairs, and that business agent was Krembs who drew the will. It also appears that two of contestees have long resided away from their father in Burlington, Iowa, but visited him July 4, 1902; that contestants lived in St. Louis or in proximity thereto ; that they visited their father with regularity and he, when able, visited them. There/ is evidence tending to show that after Mrs. Buehter assumed charge of her father’s house and (towards, the last) of his affairs, her sisters, contestants, were not made welcome on their visits to their father. One of these sisters, living towards Clayton in St. Louis •coiiaty, was not informed of her father’s death, but, coming to visit him on a Sunday, as usual, she found him lying in his coffin, he having died the Friday before.

Proponents, assuming the laboring oar to make out a prima facie case, placed upon the stand Mr. Ray and by him showed that he was a deputy probate clerk and identified the paper writing purporting to be the will of Theodore Albert Thomas. They next introduced Mr. Krembs, who drafted the will, and Miss Bocka, his stenographer — the witnesses to the will —and having made out a prima facie case, followed it by the introduction of the paper itself, and rested— none of the proponents taking the stand. The evidence heretofore outlined came from contestants and some neighbors of decedent. By Krembs and Miss Bocka, it was shown that in the forenoon of July 22nd one of proponents, either Mrs. Timmer or Mrs. Buchter, appeared at Krembs’ office and told him in substance that Mr. Thomas and her sister had gone to a doctor and presently would appear. Shortly afterwards they did appear, so that the two daughters, Buchter and Timmer, and the old gentleman were present when the will was drafted. The plan adopted by the draftsman was to take testator into an adjoining room, leaving the door open and there, at a railing, testator stood for, say, ten minutes, giving Krembs (also standing) the data from which to draw the will; that thereupon they came back into the front office, where the two daughters and the stenographer were, and Krembs drafted the will section by section and as finished handed the sections to the stenographer who copied the same. It ■seems, according to Krembs, that though he had been notified that the father was coming he indulged in no conversation with the messenger as to the object of the visit. It seems that while the will was being drafted the two daughters were not consulted except as to the middle names of the children, nor did they hear the will read. That they knew its contents, however, is inferable. It seems that when the will was copied by the stenographer, Krembs, out of abundance of caution, retired with testator to said adjoining room, still leaving the door open, as we understand the record, and there, standing, read the will to him in German— from start to finish, the time used being twenty minutes. Testator assenting thereto, they again came into the front room, sat'down to a table, testator signed the will, the stenographer and Krembs witnessing the will, and Krembs put it in an envelope, labeled said envelope and produced the will at probate. When testifying he did not remember that he kept the will and seems to have had an eye on drawing a will that would stand the test. On being inquired of how he came to write in the will the fact that advancements had been made to three of the children only, he explained that he received from the testator information of advancements to all of his children, but that fact (exercising his own volition) was not set down in the will, the record at one place setting forth as follows:

“A. I asked him why he did it.
“Q. And he gave you the reason? A. He gave me the answer, yes, and I didn’t put that ansiver in, of course, only stated it in the ordinary phrase.
“Q. Well, that is what you put in the will, wasn’t it? A. Yes, sir.
“Q. He told you about giving to each of them, didn’t he? A. Yes, at different times.
“Q. And to each of his children? A. All of his children.
“Q. He told you, of course, the reason he put this in was because he wanted to make it equal? A. No. He didn’t say that. I only put that in as a precaution myself; that is, I told him whether I should put it in, and he cotddn’t say exactly hotv much he gave to each; just ta say that he had given some to each already.
‘ ‘ Q. What did he tell you the amount was that he had given them? A. I think the previous occasion something like fifteen hundred dollars, each of the children, I think, and I think to the oldest son even I think he had given more. That is, not on that occasion, perhaps, but in all counted together he had received more than any of the others.
“Q. But the reason he put this down was because he had given them more than the others, you say? A. Yes; that ivas his idea.'
“Q. That was what he said? A. That was what I understood from him, yes, sir.”

On cross-examination Krembs was asked, in effect, whether he had not stated to certain parties that the will was prepared before testator appeared at his office and he testified he had not done so. For contestants, it was shown that Krembs had so stated.

. On behalf of proponents it was sought to' be established by Krembs that he was the business agent of testator and evidence was introduced somewhat tending to show testator was on friendly terms with Krembs, that he had known him for several years, that the old gentleman sometimes stepped into his office and discussed matters with him, such as the sale of property and investments and his troubles with tenants. But the evidence is very scanty on the. score of such business relations. Krembs may have drawn a lease for him during the years of his acquaintance, and when testator’s wife died in 1895 he prepared a proof of death. He never loaned any money for testator; he never sold any of his property; he collected no rents for him; and at one time got some money from one of testator’s agents and turned it over to him — a mere formal matter, as we infer. But on the other hand it is not shown that testator had any regular business agent or legal adviser; and further it is shown that Krembs was the agent and business man of two of the contestees, as said, Mrs. Timmer and Mrs. Buchter.

The question of the bequest to Timmer, trustee for Louisa M. Thomas, was discussed between Krembs and testator on that occasion, and in his examination in chief these questions were propounded to him and answers given:

‘ ‘ Q. Did he explain to you why he wanted that arranged so that it would not be placed in her hands? A. Yes sir, on account, he thought she would spend the money, likely, foolishly; and she ought to have somebody to' assist her, and I asked him whether she had a guardian and he said that was not the case, and I suggested the trusteeship.
“Q. Did you ask him first whether there was a guardian for her, and he told you no? A. Yes, sir.
“Q. And this plan of the trusteeship was suggested by you? A. Yes, sir.
“Q. What did he say to that? A. He thought it was the best way out of it, as he would not like to have proceedings brought in court to have a guardian appointed. It was not necessary. She had always kept house for him; only sometimes she was a little what they call worse than at other times.”

There was evidence on behalf of contestants to the effect that the day after the will was written it was given out through Mrs. Timmer and Mrs. Buchter to their sisters, contestants, and their husbands, that they had taken their father to see the doctor the day before but no inkling escaped them relating to the important visit to Mr. Krembs, and the preparation and execution of a new will were guarded as a secret, though it is not shown by this record the secret was the testator’s secret, or was so considered by himself, or that the facts were locked up at his request.

There was also evidence that, when Krembs was inquired of as to those present when the will was written, he said testator was accompanied by two ladies and intimated he did not know whether they were testator’s daughters or not, though it is a conceded fact that he had long known them as the daughters of testator.

It should be said, also, that some of the testimony elicited from Louisa M. Thomas seemed somewhat improbable, but the details of that testimony go to affect her credibility, and would appear to be matter of argument and for the jury rather than for this court on questions of law, and, hence, such details may be spared. '

There was also evidence by a neighbor of testator that on a certain morning, located as toward the mid: die of July, 1902 (but we think, by inference, it was likely the very day the will was concocted), testator came out of his door attended and supported by Mrs. Buchter; that at the gate these two were met by Mrs. Timmer; that Mrs. Buchter accosted Mrs. Timmer with “Hurry up, Bertha, you are late” thus apparently showing a prearranged meeting and a common design and mission; that thereupon these contestees, the one supporting her father on one side and the other on the other, went away with him down the street and about noon they were seen returning in the same fashion and rested their father a half block from home in a neighbor’s stairway.

The foregoing statement uncovers all facts vitally necessary in considering assignments of error made, except that record facts, pertaining to the rulings of the trial court on the exclusion of testimony, will appear in this opinion in connection with the consideration of that'special assignment.

I. On this record, did the learned judge presiding, nisi, err in forcing a verdict in favor of the will? Deferring, as we do, to his ability and ripe learning in the law, with reluctance we are forced to think he did. And this is so, because:

The larg-e question presented touches the daughter left in penury and weighted down with infirmity. That the testator, when left to himself, felt towards this child the attachment and responsibility arising from, and due to, her helplessness, her dumb faithfulness and his duty, this record attests in many ways. For instance, darkened as was her mind he kept her by him and under his eye and she long served him with fidelity and he ministered unto her tenderly until she was forty-two years of age. There is not a particle of proof that he consented to have her permanently taken from him or that he was aware of the purpose and significance of that act. That he, to the last, was not without affectionate delicacy of feeling towards Louisa, is further shown by the fact that he told the draftsman of the will that she had no guardian, and what he then said is fairly subject to the inference that he desired to shield her from publicity in having one appointed. To that end he told the draftsman “it was not necessary— that she had always kept house for him. ’ ’

To provide for his offspring, sane and (presumably) happily circumstanced, by way of advancement in large amounts, and for some of his same offspring as legatees in other large amounts, and to put the helpless one at such great disparity, when her needs begged for fatherly justice and pity, produced a most unnatural and (we think the case allows the word) wicked will. At six per cent the trust fund created for her ($2,150) would produce an income of $129'. If, now, taxes and incidental expenses be deducted, it can hardly be supposed a father, clothed in his right mind,would have considered she could subsist, let alone been supplied with the most primary comforts. Circumstanced as she was, such income could not have been intended as adequate support. If not adequate, then it was intended the principal of the fund should be drawn upon and absorbed, and, hence, further intended she should ultimately become an object of charity, i. e., a charge upon public alms.

A father may disinherit his children, young or old, well fixed in life or otherwise, and unchallenged give all his estate to his widow; and such fact may not even call for explanation, because the broad human fact remains that the children in turn inherit from the mother and that after (or before) her wants are provided for, her motherlyinstinctsmaybetrusted to distribute the estate fairly. So, too, where estrangements occur the uneven distribution of property is a natural result. Moreover, sitting as a chancellor upon the equities of his family affairs, a father may be trusted by the law to distribute his estate according to his own decree (entered rusticum judicium.) But in this case, how could estrangements occur between testator and Louisa Thomas ? For as much as, assuming she was feeble-minded (and, hence, pro tanto, unaccountable),it cannot at first blush be seen how he could charge accountability to her and become estranged or take on color from her acts or conduct unless he had lost his own mental equipoise and reckoning* through his own feebleness of mind or the .machinations of others, operating on an enfeebled mind, and, therefore, as will be seen, this case comes within the rules of law presently pointed to.

That a testator has the naked legal right to disinherit, say, an infant of tender years left at his death a motherless orphan, is so. That is to say, such result necessarily flows from the free plenary testamentary power existing in this State under our statutes, and at ■ common law (modified by the statutory rights of the widow and of pretermitted and posthumous heirs, if any). By the same token, a father has the naked legal right to disinherit, or substantially disinherit, a feeble-minded daughter of no earning capacity and leave her, like a falling autum leaf, the sport of every ill wind that blows. But these general principles must be taken with some grains of salt. They are hard sayings (stumbling blocks), much murmured against. Courts have gone to great lengths in sustaining the full, abstract and concrete power of testamentary disposition; for the law recognizes that at root the idea of any testamentary power at all is grafted on the proposition that a testator has the right (and may wish) to unevenly dispose of his estate. The courts, too, recognize the evil that springs from the itching and meddlesome disposition of outsiders to make wills for others — to make a wiser distribution of their property than they have done — and have in many cases shown their inclination to check that evil by curbing that disposition, and to uphold the right of the owner of an estate to dispose of it as he elects. The courts, too, recognize the fact that testamentary disposition often comes only in the evening of life and that idiosyncrasies, foolish words, odd notions and acts. ‘‘sounding to folly” in aged people, may be so combed together from far and near and scheduled and paraded as somewhat to show unsoundness of mind, and yet, fairly considered in the light of every-day experience, do not establish that infirmity. However, when all this has been said it still remains that, as long as kindness is esteemed a virtue by civilized people, their laws can neither be interpreted as essentially unkind nor are they of such a sour complexion and so deadly cold in their processes as to eliminate all human warmth of sentiment and all moral duty. Accordingly, it is the sound doctrine of the law that while a testator has the abstract power of disposing of his estate by will according to his settled convictions, or caprice, yet a will, producing results such as those now under judicial scrutiny, is the object of sharp solicitude and jealously in the courts. When one of old, by subtlety, took from his brother his father’s blessing and the wronged one was told thereof by his father, it is said: And when Esau heard the words of his father, he cried with a great and exceeding bitter cry, and said unto his father, Bless me, even me also, oh my father. Peradventure the law may utter for this child a cry for a blessing which her dumb lips may not utter. We think it does; because, such a will, where there is other substantial evidence of undue influence and testamentary incapacity, calls for explanation and such unnatural provisions are submitted to the jury as evidence tending to show undue influence, where that is in issue, and as evidence tending to show lack of testamentary capacity, where that is in issue, and may be considered by the jury with all other facts and circumstances in the case upon such issues. That is to say, an unnatural disposition of property standing alone may not avoid a will, but the results of such unhappy distribution may be tempered and toned down, possibly to avoidance, by allowing it to be weighed by the triers of facts, along with other facts, tending to show undue influence or testamentary incapacity.

The general rule applicable to such conditions is formulated by Schouler on Wills (3 Ed.), sec. 77, thus:

“Notwithstanding the broad principle whichmaintains testamentary capacity, it is generally found in practice that a will which is partial and unjust in its provisions, absurd, or clearly devoid of natural duty and affection, finds no ready support in the courts. Such wills are not, indeed, absolutely void; but their execution is regarded with jealousy and suspicion. The spiritual tribunals in early times, following the Roman law of inofficious testaments, made little compunction of setting senseless wills aside, or, as Swinburne very strongly expressed it, ‘if there be but one word sounding to folly.’ Foolish words, foolish phrases, cannot in these days, however, be said to invalidate any will at the Anglo-Saxon law; . . . but the English law does not follow the Roman in avoiding such wills peremptorily as the offspring of incapacity, nor even so as to prevent one absolutely from disinheriting his own offspring. On the contrary, if a testator be legally competent to make his will, and acts freely, his will cannot be impeached because harsh, unequal,unreasonable, imprudent, or unaccountable in its provisions; nor as being a foolish or visionary disposition; nor even as being devoid of natural affection and moral duty. It 'may be that what on the face of the will appears an unnatural disposition, may be reasonably explained. And certainly the more distant or unfamiliar one’s heirs and next of kin, the less should he be expected to provide for them, equally or at all, by his testament.
“But in order to sustain any unjust, unnatural, or absurd will, which may be contested, fair proof at least should be afforded that the testator was of sufficient capacity at the date of execution to comprehend its import; and furthermore the trier of the ease should believe that neither essential mistake on his part nor fraud nor undue influence of others about him produced so unhappy a disposition.....In fine, a harsh and unnatural disposition by the will in question, is a circumstance which tends to discredit the maker’s testamentary capacity.” [See, for the same doctrine, 1 Underhill on Wills, sec. 105.]

In a very late work, Page on Wills, sec. 385; it is said:

“Under the civil law a will whereby the testator without just cause excluded from his estate those who were near to him in blood, as where a parent disinherited a child, or a child excluded a parent, was known as an inofficious will, and might be set aside by a form of contest known as querela mofficiosi testam'enti. But the common law recognizes no such limitation upon the testamentary power of a testator who possesses testamentary capacity.....However, the nature of the will itself is clearly one of the controlling facts in passing upon doubtful testamentary capacity. Popular feeling upon this point coincides with the rules of law, and the jury or the court which decides upon the facts must be allowed to consider the nature of the will in connection with the other evidence in the case.” [Citing Aylward v. Briggs, 145 Mo. 604.] ..... “If the will is unjust and unreasonable in view of the relations of the parties, this fact may be shown by proper evideuce, and may be considered by tbe jury as bearing upon testator’s capacity.”

In 1 Redfield on Wills (4 Ed.), p. 516', it is said: “Where the will is unreasonable in its provisions, and inconsistent with the duties of the testator, with reference to his property and family, . . . this of itself will impose upon those, claiming under the instrument, the necessity of giving some reasonable explanation of the unnatural character of the will.” On p. 537: “Gross inequality in the dispositions of the instrument, where no reason for it is suggested, either in the will, or otherwise, may change the burden, and require explanation on the part of those who support the will, to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind. ’ ’ The above text has been frequently cited with approval by this court, e. g., in Gay v. Gillilan, 92 Mo. 264; McFadin v. Catron, 120 Mo. 271.

In 28 Am. and Eng. Ency. Law (2 Ed.), 106-7, the rule is formulated as follows: “The character of the provisions, however, as being just or unjust, reasonable or unreasonable, may be considered by the jury, as tending to throw light on the capacity of the testator. Evidence is therefore admissible tending to throw light on the question of the justice or reasonableness of the will. Such evidence usually relates to the relative situations and needs of those having a claim on the testator’s bounty, and to the relations between the testator and those receiving or claiming to have been unfairly deprived of his bounty.”

And in the 29th volume of the work last cited, pp. 115-16, it is said: “Evidence that the provisions of a will are unreasonable, unjust, capricious, and unnatural is not sufficient in itself to establish undue influence (citing Campbell v. Carlisle, 162 Mo. 634); but it is proper to be considered along with other evidence as going to show such influence (citing Gay v. Gillilan, 92 Mo. 250),.... and for the purpose of setting out more clearly the unnaturalness of the will it may be shown that relations between the testator and the relatives not provided for were pleasant, or, that the lat-tor was dependent for support on the former.”

The doctrine promulgated in the foregoing texts may be found endorsed and circumspectly applied uniformly in our decisions. For example, in Gay v. Gillilan, 92 Mo. 264; Maddox v. Maddox, 114 Mo.l.c.49 ;McFadin v. Catron, 120 Mo. l. c. 271, et seq; Catholic University v. O’Brien, 181 Mo. 68; Hughes v. Rader, 183 Mo. l. c. 710, et seq; Dausman v. Rankin, 189 Mo. l. c. 707-8; Bradford v. Blossom, 190 Mo. l. c. 139-143 ; Roberts v. Bartlett, 190 Mo. l. c. 700; et seq; King v. Gilson, 191 Mo. l. c. 327. And the same doctrine finds support in other appellate courts; e. g., England v. Fawbush, 204 Ill. 384; In re Will of Budlong, 126 N. Y. 423, and many others.

It is not necessary to cite authorities to sustain the proposition that undue influence need not be shown by direct proof but may be established by proof of facts from which it may be rationally inferred, nor to sustain the proposition that while fraud is never presumed, yet it may be proved by indirect evidence, as in the case of undue influence.

In our opinion there was substantial evidence below of undue influence and of testamentary incapacity, and some of the testimony, unexplained, points to fraud in the concoction of this will.

In this connection it is contended by defendants that the petition is insufficient as a charge of fraud; but the record does not show that such contention wasmade below, and in the absence of a motion complaining of lack of definiteness and requiring the petition to be made more specific in that particular, we are not prepared to say that the contention should be sustained.

II. Attending to the complaints made by appeh •lants that the court erred in excluding testimony, all .necessary to be said at this time is that, having admitted some testimony of advancements to all of the children, except Louisa, prior to the execution of the last will, the court finally excluded such testimony from one witness, Mrs. Meier. The record is not explanatory on the reason for the exclusion of this testimony. In the view we take of the matter it was pertinent testimony directed to the issues of undue influence and testamentary capacity, in that it tended to show an unnatural will — its weight, of course, being greater or less under varying circumstances, and with the jury.

The learned trial judge also excluded evidence of the statements and admissions made by some of the contestees. We take it this testimony was excluded on the authority of Schierbaum v. Schemme, 157 Mo. l. c. 17, et seq. That case discussed Armstrong v. Farrar, 8 Mo. 627; Hurst v. Robinson, 13 Mo. 82; Jackson v. Hardin, 83 Mo. 186; and Von De Veld v. Judy, 143 Mo. 368, and on full consideration of those cases and the pronouncements of other appellate courts and of text-writers, announced this proposition: “We are satisfied both on reason and authority that the rule laid down in the Pennsylvania and Massachusetts cases above quoted is right and that stated in Armstrong v. Farrar, supra, whilst it is correct as applied to cases of joint interest, is no longer to be regarded as the correct rule applicable to devisees or legatees holding separate rights under a common will.” (Which holding has since been followed.) [Wood v. Carpenter, 166 Mo. l. c. 485; King v. Gilson, 191 Mo. l. c. 333.] It will be seen that devisees having a “joint interest” stand on a different footing as to admissions than do those devisees who have no such interest. In this case it is not necessary to judicially interpret the phrase “joint interest.” Because, under certain conditions, the rule in the Schierbaum case would not be applicable andshould not be mechanically applied to the facts in this case. Here the petition alleges, in substance, that there was a .conspiracy between all the contestees to defraud, and it is elementary law that when there has been evidence tending to show a conspiracy exists, the admissions of any one of the conspirators along the line of the conspiracy, touching its subject-matter, and in furtherance thereof, are admissible. Therefore, in the retrial of this case if there should be testimony introduced fairly tending to show privity of design in the concoction of this will by the contestees, Mrs. Buchter, Timmer, Biddle and Kirchner, it is our opinion that after the introduction of evidence, if any there be, tending to the establishment of such privity of design, is introduced, the admissions of any one of the conspirators should he accepted.

We think this is as far as we ought to go, because the cause will be reversed and remanded, precluding neither party on the facts, to be tried in accordance with this opinion, and it is accordingly so orderred.

Brace, P: J., and Valliant, J., concur; Graves, J., not sitting.


text:
    QUANTOCK, Plaintiff in Error, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.
    Division One,
    June 19, 1906.
    FARM CROSSING: Subsequent to Building Railroad. The statute requiring a railroad which cuts a farm in two, to construct a crossing for the benefit of the owner, applies in all cases where the farm lies on both sides of the railroad, whether the owner owned it at the time the railroad was built, or subsquently acquired by purchase tracts lying on different sides which together constitute one farm. [Disapproving Stumpe v. Railroad, 61 Mo. App. 357.]
    Transferred from Kansas City Court of Appeals.
    Reversed and remanded.

      W. M. Williams and 8. G. Major for plaintiff in error.
    (1) The demurrer, even under defendant’s construction of the statute, ought not to have been sustained.- Both tracts of land belonged to the same owner, and constituted parts of one farm, at the time the railroad was constructed. The condition making the farm crossing necessary was brought about by the construction of the railroad through the farm. No greater hardship will result to it on account of building the crossing for plaintiff than from building it for the original owner. The rule should work both ways. If defendant is to be excused from building a crossing, in cases where the necessity therefor arises on account of a subdivision of the farm after the railroad is built, because its liabilities are thereby increased, it should not be excused from maintaining such a crossing where the necessity therefor was created by the location of the road, and where su'ch necessity continues to exist. (2) Plaintiff insists that the statute should not be construed to limit the right to a farm crossing to cases where the necessity therefor existed at the time of the construction of the railroad. The language of the statute does not convey any such meaning. Stone & Cement Co. v. Railroad, 130> N. T. 152.

      Geo. P. B. Jackson for defendant in error.
    (1) The statute relied upon, section* 1105, Revised Statutes 1899, was not intended to, and does not, secure passways or crossings between detached tracts of land, but was intended to afford connection between the different parts of a farm intersected by the construction of a railroad through the same. In this case the plaintiff’s two tracts of land are not contiguous. They are 100 feet apart, being separated by the right of way of the defendant’s railroad, in which the plaintiff has no interest whatever. Stumpe v. Railroad, 61 Mo. App. 357; Miller v. Railroad, 56 Mo. App. 72-74; Chalcroft v. Railroad, 113 111. 86; Thornton onRailroad Fences and Private Crossings, sec. .256; Sinith v. Railroad, 94 Mo. App. 398. (2) The right to a crossing applies only where a farm is intersected by the construction of a railroad, and does not exist where a party subsequently and at different times buys tracts of land lying upon the opposite sides of the railroad. In the case at bar the plaintiff acquired his several tracts of land sixteen years apart in point of time, and both long after the construction of the defendant’s railroad.
   VALLIANT, J.

Plaintiff sues to recover damages for the failure of the defendant railroad company to build and maintain a farm crossing over its track and right of way to connect plaintiff’s lands which lie on both sides of the railroad.

The facts of the case are as follows:

In 1873 both tracts of land now owned by the plaintiff constituted one tract, and it was owned by one George W. Ward. The defendant company in that year built its railroad through the tract, cutting it into two parts, and built a farm crossing over its track to connect the parts so severed and maintained the crossing until 1884, when Ward sold the land lying east of the railroad to the plaintiff, whereupon the defendant removed the crossing. In 1900 plaintiff purchased the land lying on the west side and thus became the owner of both tracts or both parts of the original tract owned by Ward in 1873. After his last purchase plaintiff demanded of the defendant to rebuild or restore the farm crossing, defendant refused, and this suit was the result.

The circuit court sustained a demurrer to the plaintiff’s petition, plaintiff appealed to the Kansas City Court of Appeals, where it was held that the judgment of the circuit court was wrong, but the judges of the Kansas City Court of Appeals being of the opinion that its judgment was in conflict with the opinion of the St. Louis Court of Appeals in Stumpe v. Railroad, 61 Mo. App. 357, transferred the cause to this court for determination. [Quantock v. Railroad, 117 Mo. App. 469.]

The whole controversy lies in the conflicting construction which plaintiff and defendant respectively put on the provisions of section 1105, Revised Statutes 1899, requiring the railroad company to build farm crossings. Defendant construes that section to mean that it is required to construct and maintain a farm crossing only when a man’s farm lying in one tract is bisected by the location and construction of the railroad; and that is the construction put upon the statute by the St. Louis Court of Appeals in Stumpe v. Railroad, 61 Mo. App. 357, wherein it is said: “The statute, as far as crossings are concerned, contemplates a condition brought about by the construction of the railroad, and not one arising by the voluntary act of a subsequent purchaser of adjoining lands.”

There is no language in the statute which, in our opinion, justifies that construction. The object of the law is to afford a man whose farm lies on both sides of a railroad a reasonable means of crossing from one part of it to another, and the purpose of the statute applies as well to one whose purchase of lands after the construction of the railroad has brought about the necessity for a crossing, as to one who owned a farm that was bisected by the railroad in its original location.

We do not deem it necessary to enter upon a further discussion of this subject because in the' opinion of our Kansas City Court of Appeals, by Ellison, J., in this case, reported in 117 Mo. App. 469, everything is said that is necessary to be said and we adopt that as our opinion.

The judgment is reversed and the cause remanded to the circuit court to be proceeded with according to the law as herein indicated.

All concur, except Graves, J., not sitting.