source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    GUY v. KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY, Appellant.
    Division One,
    June 19, 1906.
    CHANGE OF VENUE: Prejudice of Judges: More Than One Judge: Jackson County. Where there is more than one circuit judge in a county, the court is not authorized, upon the filing of an affidavit alleging the existence .of a prejudice against the applicant on the part of all the judges of the county, to send the case out of the county, without taking evidence to ascertain whether or not such prejudice exists against the other judges. Where there is but one judge in the county, the affidavit is conclusive upon that judge, but section 11 of the act of 1879, which has since been continued in force, says that “if the reason exists against both judges 'Of said court then the change may be allowed to the circuit court of some contiguous county,” but the , General Assembly has not said how the fact that “the reason exists against” the other judges is to be ascertained. It is, therefore, to be ascertained by the judge of the division in , which the application is filed, just as other collateral questions of fact addressed to the court are tried, that is, not by a jury, but by the court; and until proof is offered tending to show the prejudice of the judges presiding in the other divisions of the court, no change to another county should be awarded upon an affidavit alleging only prejudice on the part of all the judges of the county.
    Appeal from Bates Circuit Court. — How. W. W. Graves, Judge.
    Reversed and remanded {with directions).

      L. F. Parker and Pratt, Dana & Black for appellant.
    The Bates Circuit Court had no jurisdiction of the case. The change of venue was improperly granted. While a sworn application for a change of venue may disqualify the judge to whom the application is made and may make a prima-facie case on its presentation, such rule certainly does not obtain as to other judges than to the one who is presiding at the time in the canse. It requires something more than a mere affidavit to disqualify judges who have never sat in a cause. A judge presiding in a cause cannot take judicial notice on a mere affidavit that his brother judges are unduly influenced or biased against apartytoasuit. It is a matter that must be presented to other judges before being passed upon by them or there must be proof offered to sustain such an allegation against any other judge than the one who is sitting in the case. Eudaley v. Railroad, 186 Mo. 399; State ex rel. v. Wood-son, 86 Mo. App. 253.

      Thos. J. Smith, W. O. Jackson and Geo. W. Wright for respondent.
    As was said by this court in Eudaley v. Railroad, 186 Mo. 404, “the right to have a change of venue comes only from the statute.” It being purely a statutory right and being prescribed by statute, this method of procedure is exclusive. Railroad v. Railroad, 149 Mo. 253. The person applying for a change of venue on account of the interest, prejudice, etc., of the judge under the provisions of section 822, if his application is timely and formal, gets the change on the application, unless he agree to a special judge or to the election of such a judge by the members of the bar. No provision is made (and under the rule referred to above would it be permitted) for proving the facts upon which the application is based, otherwise than by the application itself. Such is the clear reading and interpretation of the statute referred to. Under this section, if a change of venue is awarded on account of objection to the judge and the applicant fails to agree with the other side as to a special judge, then the case must be sent “to another county” for trial. Because it has been suggested that if a party may be permitted to swear against the several judges of a circuit, where there are more than one, he would thereby in effect be obtaining more than one change of venue, we beg to say the right of a person so to do must depend upon the statute governing such courts. In this case the statute, is the act of 1879 (Laws 1879, p. 82.) It will be seen that under this statute the right to swear against more than one judge in the same circuit is clearly recognized unless in some way it can be found that the prescribed statutory procedure to secure this purely statutory right is not exclusive, as has been so often stated by the text-writers and declared by this court, as it appears to us. "We recognize that in the section quoted from it is said: ‘ ‘ But if the reason exists against both judges then the change may be allowed, ’ ’ etc. Under the general law in force at that time, as had then been but recently declared, the only way by which the existence of the reasons for such change of venue was to be proven to the court so as to authorize the change of venue, that is, a change of venue from the county where the suit was then pending, was a formal affidavit and application of the party applying. Corpenny v. Sedalia, 57 Mo. 92. The doctrine of this case has been ever since recognized by this court. Therefore, both under the general rule of construction and the express declaration of this court upon the identical question, the showing and the only showing, required of plaintiff was that he make a formal and verified application for a change of venue. The opinion of this court in the Eudaley case is predicated upon the hypothesis of the repeal of the act of 1879' by the general provisions of sections 821 and 822, Revised Statutes 1899, or else the act of 1879 was not called to the court’s attention. Suth. on Stat. Const., sec. 157; State v. DeBar, 58 Mo. 395; McVey v. McVey, 51 Mo. 420; State ex rel. v. Stratton, 136 Mo. 429; State ex rel. v. Spencer, 164 Mo. 53; Manker v.Faulhaber, 94 Mo. 430; Donnel v. Lee, 101 Mo, App. 191.
   VALLIANT, J.

Plaintiff, a brakeman on one of defendant’s freight trains, received personal injuries in consequence, as he declares, of the negligent handling of the train.

He brought suit for damages in the circuit court of Jackson county and the cause was regularly assigned to Division No. 5 of that court. After the pleadings were made up he applied to the court for a change of venue, alleging in his affidavit as the ground for the change that the judge of Division No. 5 was prejudiced against him and that the defendant had an undue influence over the judge and that the same reason for a change of venue applied also to each of the judges of the other four divisions, naming them. When the application came on for hearing plaintiff offered no evidence, defendant appeared and objected to the change of venue on the ground, among others, that the party could not thus disqualify all the judges in that circuit and thus send the cause to an adjacent circuit. The court ‘overruled the objection, and made an order, first, that the cause be sent to Yernon county, but on the suggestion that that county was not in an adjoining circuit the order was changed so as to send it to Bates county. Defendant duly excepted to the ruling of the court, and filed its term bill of exceptions in the Jackson Circuit Court. The cause was sent to the Bates Circuit Court, where it was tried, verdict and judgment for plaintiff for $5,150- from which defendant appeals.

We have first to deal with the question of the change of venue. This same question was decided in Eudaley v. Railroad, 186 Mo. 399. In that case, as in this, the plaintiff after bringing suit in Jackson county applied for a change of venue on the ground alleged that the judge of the division to which the cause had been-assigned was prejudiced against him and that the defendant had an undue influence over him, and that the same reason applied to all the other judges of that court. The judge in that case to whom the application was made construed the law to be that the plaintiff’s affidavit was conclusive and that the court had no discretion but to select another county to which he would send the case and accordingly sent it to Lafayette county; the defendant preserved its exception to the ruling by a term bill of exceptions, the cause was tried in the circuit court of Lafayette county, there was a judgment for the plaintiff and defendant appealed. We held in that case that the sending of the case out of Jackson county was error and for that error the judgment of the circuit court of Lafayette county was reversed and the cause remanded to that court with directions to return the record to the circuit court of Jackson county, and directions to the circuit court of Jackson county to resume jurisdiction of the cause and proceed with it according to law.

We do not consider it necessary to enter anew on the full discussion of that subject as our views are set out in the opinion in that case. In the brief of respondent, however, it is suggested that we did not in that case refer to the act of 1879 which made two divisions of the circuit court of Jackson county (Laws 1879', p. 82), and which in section 11 thereof provided that: “After the date aforesaid, no change of venue shall be allowed by said circuit court for any reason that may be alleged against the judge of the division to which the same is assigned, but if any such reason exist, the cause shall be transferred to the division held by the other judge; but if reason exist against both the judges of said court, then such change may be allowed to the circuit court of some contiguous county, unless otherwise disposed of according to law.” Since the passage of that act there have been two other acts of the General Assembly relating to the organization of the circuit court of Jackson county, one making four divisions (Laws 1889, p. 77), the other increasing it to five divisions (Laws 1901, p. 118.) The act of 1889' declares that: “So much of all acts now in force and applying to said judicial circuit as are not repealed by inconsistency with this act are hereby continued and made to apply to the four divisions of said court.” In each of the acts of 1889 and 1901, is a clause expressly repealing all acts or parts of acts inconsistent with it. Section 11 of the act of 1879' above quoted is the only part of that act relating to the subject of change of venue; there is not in either the act of 1889 or 1901 any reference to that subject. So that if there is any special law now governing the circuit eourt of Jackson county in the matter of a change of venue it is section 11 of the act of 1879. The law authorizing a change of venue to a county in another circuit on the ground' of the disqualification of the judge of the court in which the cause is pending has been on our statute books from their earliest date (1 Territorial Laws 1804-24, pp. 617, 770), and from the first to the last the language used in the general statutes on this subject shows that the law-makers had in mind circuits in each of which was but one judge. Therefore it was provided, as a general law, that if the application for a change of venue was made on the ground of the disqualification of the judge he should send the case to some county in another circuit unless the parties agreed on a special judge or on the election of one. Where there is but one judge in a circuit and he is disqualified the only way to get the case before a judge who is qualified is either to select a special judge or send the case to another circuit. But if the only obstacle in the way of a fair trial is the supposed prejudice of the judge, that obstacle is easily removed in a court consisting of two or more’ divisions by the transfer of the cause from one division to another. In such case it would be without reason and would be oppressive to require or permit one party to carry the case to a distant forum, and the Legislature never intended to authorize it. It was doubtless to prevent the general law being so construed in its application to the circuit court of Jackson county that the General Assembly, when giving that court two judges, as it did in 1879, added section 11 above quoted, and that reason applies with even more force when as now there are four other judges to choose from than it did when as in 1879 there were only two judges of that court.

The general statutes, sections 818 to 822, Revised Statutes 1899', inclusive, show that the law-makers had in mind only courts in each of which there was but one judge and they made provision for the- change of venue in two classes of conditions only, one where the objection is to the judge, the other where the objection is to all the people of the county; in the first, the affidavit of the party is all that is required; in the second, evidence is to be heard and the charge alleged against the inhabitants of the county is to be proven. There is nothing said about another judge in another division of the same court. Those sections of the general law contain all that the General Assembly has said on the subject of the procedure to obtain a change of venue. The main purpose of section 11 of the act of 1879 was to except the circuit court of Jackson county in this particular out of the provisions of the general law which was enacted for courts of which there was but one judge, and to require the judge of the division in which the cause was pending when the charge disqualifying him was made to send it to the other division instead of to some county in another circuit.

But section 11 of the act of 1879 says, “But if the reason exists against both judges of said court then the change may be allowed to the circuit court of some contiguous county unless otherwise disposed of according to law.” “If the reason exists against both judges”— how is that fact to be ascertained? The Legislature has not said. This court has construed the clause of the general statute, sections 818 to 822, Revised Statutes 1899, in reference to the charge of disqualificationof the judge against whom it is made, to mean that the affidavit of the party asking for the change of venue is conclusive. This is so, for the reason, as. was said in the Eudaley case, because the judge could not try the question of his own fair-mindedness and also as was said for the court by Sherwood, J., in Corpenny v. Sedalia, 57 Mo. 88, l. c. 91: “It would seem that a court against whom so grave a charge as that of partiality is made (however frivolous or false the charge might be deemed) would gladly avail itself of an opportunity to be freed from trying a cause, the trial of which might be connected with such a serious imputation.” The conclusiveness of the affidavit of the party making the charge against the judge follows from the very necessity of the case, but that necessity does not exist in reference to the charge of prejudice against ■ the other judges. The judge disqualified is still obliged by law to exercise his judgment as to where the cause will be sent, and in that matter he is neither disqualified nor embarrassed. The statute forbids the sending of the case out of the county unless the fact is that the reason for the alleged disqualification exists against both the judges, and since the Legislature has prescribed no particular mode of trial of that question it is one for the court to try as other collateral questions of fact addressed to the court are tried, that is, not by a jury, but by the court, but the court is not bound by the affidavit of the party applying for the change of venue; it must be satisfied by proof that the other judges are disqualified.

In the case at bar, the judge to whom the application for the change of venue was made seems to have construed the statute to mean that the affidavit of the plaintiff in support of his motion for a change of venue was conclusive, not only in so far as it referred to the judge himself, but also to the extent that it disqualified all the other judges in that circuit, and with that view of the law, without any proof at all of the charge, he granted the change of venne. It was error to have granted the change of venne on that showing. For that error the judgment is reversed and the cause remanded to the circuit court of Bates county with directions to return the record to the circuit court of Jackson county and with directions to the circuit court of Jackson county to resume jurisdiction of the cause and proceed with it according to law.

All concur.


author: GRAVES, J.

text:
    EMMA SNUFFER v. KARR, Appellant.
    Division One,
    June 19, 1906.
    1. FINDINGS OF FACT: No Exception. The rule is that where there wa,s no exception to the finding of facts in the trial court, this court will not review the evidence to see whether or not those facts were sustained thereby.
    2. -: -: Conclusions of Law: Exception: Dower: No Divorce. In such case the court will usually render such decree as the law requires with these facts as a basis. As, for instance, where there was a finding of fact that there was a legal marriage in Tennessee, that the wife was still living, that there had been no divorce, but that the marriage had under the statute of Tennessee been dissolved by the absence of the husband, but makes no finding as to whether there was such a statute in existence, this court would, if it followed its usual rule, reverse the judgment that plaintiff, another woman, by subsequent marriage with the same man was entitled to dower in his lands, and not review the facts or further declare the law. But in this case, owing to the serious position in which the plaintiff would be left by such reversal, and owing to the fact that there is no finding as to the existence of the statute on which the judgment is based, the court proceeds to consider other features of the case, and to pass on the sufficiency of the statute to support the judgment.
    3. -: Statute of Another State. Courts do not take jhdicial notice of the statutes of another State. Such statute is a mere bit of evidence, and if a decree is to be based thereon its existence should find place in the finding of facts, and not leave the finding to be supplemented by the statute in order to maintain the judgment.

      4. DIVORCE: Marriage Dissolved by Absence: Tennessee Stattute: Dower. The Tennessee statute provides: “A second marriage cannot he contracted before the dissolution of the first. But the first shall be dissolved for this purpose, if either party has been absent for five years and is not known to the other to he living.” Held, first, that a husband that was married in that State in 1860 and soon afterwards abandoned his wife and concealed himself in this State, should not be permitted to invoke the beneficent provisions of this statute, even if it otherwise has life here in determining the right of a subsequent wife to dower; second, the statute has no extra-territorial force, and could not have changed the man’s marital status while he was domiciled in this State; third, the statute, having first been enacted for the purpose of defense in prosecutions for bigamy, will not be given force to dissolve marriage ties of the party in fault, especially since the Tennessee courts seem to have given it no such force; and, fourth, a wife by a subsequent marriage to the man married in Tennessee, who abandoned his wife and concealed himself, cannot claim dower in his 'estate here, if his real wife survived him.
    5. COMMON LAW MARRIAGE: Solemnized by Minister: No License. Where there was a public marriage and a ceremony by a ministér of the Gospel and a living together as man and wife for several months thereafter, there was a good common law marriage, although there was no license or record of license and although the statutes required such license.
    6. -: -: -: In Tennessee. And there being no express statute of Tennessee which declared that a marriage solemnized without a license was invalid, it will be held, according to the general rule, that a marriage solemnized in that State in 1860 according to the common law was valid.
    Appeal from DeKalb Circuit Court. — Now. A. D. Burnes, Judge.
    .Reversed and remanded (with directions).

      R. A. Heivitt, Jr., and James T. Blair for appellant.
    (1) The written statement of conclusions of facts- and law becomes a part of the record proper, and if the finding of facts does not support the judgment based thereon, this court should and will reverse judgment for error apparent on the record. Stutter v. Streit, 21 Mo. 157; Allison v. Darton, 24 Mo. 343; Nichols v. Carter, 49 Mo. App. 401; Land Co. v. Breitz, 125 Mo. 418; Freeman v. Hemenway, 75 Mo. App. 621. (2) The finding of the facts in this case as made and filed herein by the court does not support or justify the conclusions of law, and the judgment rendered in this cause. Therefore the judgment should be reversed. Freeman v. Hemenway, supra; Nichols v. Carter, supra; Blount v. Spratt, 113 Mo. 55. (3) The facts found by the court preclude the very idea, of any other judgment than one for defendant.

      W. H. Haynes for respondent.
    Under the affirmative defense of a former marriage, in Tennessee, the burden was on appellant to prove that such marriage was in accordance with the laws of that State; this he failed'to do, there is no proof of a license authorizing the marriage, nor that the parties declared that they accepted each other as man and wife. The laws of that State required both, and a marriage without either is illegal and void. Common law marriage is not permitted. Code of Tennessee, 1858, Meigs and Cooper, p. 480, introduced in evidence; remained until 1871, Statutes 1871, by Thompson and Steger, page 1096. Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 5891. But if the Tennessee marriage was valid either by statute or common law, it then devolved upon appellant to prove that the Tennessee wife knew that her husband was living when he married the second time in 1881. The proof shows a dissolution of the Tennessee marriage, if there was one, and that the California marriage to respondent was lawful.
   GRAVES, J.

This is an action for the recovery and admeasurement of dower. Plaintiff; claims to be the widow of Isaac F. Snuffer. Upon motion of the defendant, who through mesne conveyances, claimed a fee simple title through a deed signed hy Isaac F. Snuffer, alone, a finding of facts was made by the trial court. This finding of facts is well supported by the evidence unless it is in some way shattered by reason of a statute of the State of Tennessee, which was introduced in evidence. The finding of facts which is, and was as a matter of fact, made a part of the judgment herein, is as follows:

“1. That on the 16th day of February, A. D. 1860, Isaac F. Snuffer and Kate Wallace were married in the State of Tennessee, Claiborne county, and for a short time lived together as man and wife in said State.
“2. That thereafter at the said State and county in the year I8601, said Isaac F. Snuffer abandoned his said wife, Kate (Wallace) Snuffer, and removed to the State of Missouri, and has continued to remain away from the State of Tennessee ever since, and that the said Kate (Wallace) Snuffer did not hear from him, the said Isaac F. Snuffer, after the year 1862.
“3. That the said Kate (Wallace) Snuffer was living at the time of the institution of this suit and had not remarried or been divorced.
“4. That in the year 1881, Isaac F. Snuffer went with plaintiff (then aged 19 years and unmarried) to the State of California and there, in said year of 1881, went through a legal and common law ceremony of marriage in due form with plaintiff.
“5. That thereafter Isaac F. Snuffer lived with the plaintiff in this case as his wife, holding themselves out to the public as husband and wife, in the States of California, Washington and Missouri, successively, until the year 1888, when he left plaintiff and the children born of the marriage and has not lived with her as his wife since.
“6. That on the 4th day of September, 1900, Isaac F. Snuffer died in the State of Arkansas.
“7. That Isaac F. Snuffer was seized of■ an estate in fee simple subsequent to the year 1881 and up to the — day of —r- A. D. 1893, when he, alone, executed a warranty deed to said lands to Thomas Vanbebber, who later conveyed to this defendant in due form; and that the defendant, Karr, is now in possession of the said lands claiming title thereto in fee.”

The Tennessee statute introduced in evidence herein above mentioned is as follows:

“A second marriage cannot be contracted before the dissolution of the first. But the first shall be regarded as dissolved for this purpose, if either party has been absent for five years, and is not known to the other to be living.”

Upon this finding of fact the court entered judgment for the plaintiff in accordance with the prayer of her petition, appointing commissioners to admeasure her dower, which was done, and later the report of the commissioners was approved and an assessment of damages had and a final judgment entered in favor of plaintiff. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed.

So far as the record shows, neither party excepted to the finding of facts as made by the trial court. In this court defendant does not challenge the.finding of facts, but contends that upon the finding of facts as made, the judgment should have been for him. Plaintiff, although judgment was for her, challenges the first finding of facts, and claims that there was no valid marriage in Tennessee. The trial court evidently proceeded upon the theory that there was a valid marriage of the deceased, Isaac F. Snuffer, to Kate Wallace, in the State of Tennessee in the year. I8601, but that for the purpose of re-marriage the same had been dissolved by force of the statute aforesaid before his marriage to this plaintiff in the State of California.

The marriage of Snuffer to the plaintiff' is not attacked, except upon the ground that he was married at the time, and that the marriage for that reason was void.

Neither marriage was what might he termed purely statutory so far as the proof shows, hut in each the rites of matrimony seemed to have been solemnized. In the first by a Methodist preacher, and in the second by a justice of the peace in California.

Defendant contends that the judgment must stand or fall upon this finding of facts, and that this court cannot go back of the finding of facts, and look into the evidence to determine whether such finding is supported by the evidence. On the other hand, plaintiff urges that this court should examine all the evidence, and if upon all the evidence, the judgment should be sustained, a judgment of affirmance should follow here. Plaintiff further contends that in the State of Tennessee what is known as a common law marriage was not recognized in that State, and that this court should go back of the finding of facts, and find that there was no valid marriage in the State of Tennessee, thus validating the marriage in the State of California.

This statement is sufficient for the discussion of all the points involved and urged in this controversy.

I. Under the finding of facts made by the court it appears that there was a marriage between Isaac P. Snuffer and Kate Wallace in the State of Tennessee in 1860. This finding was upon the evidence in the case, including statutes and other documentary evidence. Under the same finding the said Kate (Wallace) Snuffer is still living and no divorce has ever been procured. The finding in no way suggests a dissolution of the marriage — not even by the statute introduced. With a valid marriage found from the facts, and no dissolution found by divorce or otherwise, in the finding of facts, it is difficult to harmonize the judgment with the finding of facts. The statute introduced in evidence was nothing more than any other evidence in the case, and if the trial court expected to rely upon this bit of evidence for a dissolution of the marriage found to have existed, there should have been a finding, first, as to such marriage, and then a finding of the dissolution thereof by this statute. The trial court does not even find that there was such a statute, but leaves the finding of facts to be supplemented by this statute in order to maintain the judgment. With this defect in the finding of facts, and there being no exceptions saved and preserved by plaintiff as to the finding of facts, we might content ourselves by simply holding that under the facts as found the judgment cannot be sustained. Plaintiff urges that we go back of the finding of facts, and if upon the whole record the judgment is for the right party, we should affirm. This is not a case in equity, and as we understand the rule, where there is a finding of facts, in a case at law, and no exceptions taken thereto as in this case, then we either affirm or reverse the judgment, as by our conclusions of law, we may be compelled to do, upon the facts as found by the trial court. [Loewen v. Forsee, 137 Mo. l. c. 38; Freeman v. Hemenway, 75 Mo. App. l. c. 621.] In the latter case it is said:

‘ ‘ The correctness of the finding of facts- may be assailed in the appellate court on the ground of there being.no evidence to support it, or that it does not include all the issues, if the evidence is preserved by bill of exceptions. [Nichols v. Carter, 49 Mo. App. 401.] But we understand from a recent ruling of the Supreme Court, in order to assail such finding, exception must be taken and preserved by the objecting party. [Loewen v. Forsee, 137 Mo. 38.] Defendants failed to save any exceptions to the finding or conclusion of law and hence we can not look into the evidence to ascertain whether it was a proper or complete finding on the issues. But the finding of facts and conclusions of law therein become a part of the record proper, and we will examine into them to see if the findings support the conclusion, although no exception is taken. [Nichols v. Carter, supra.]

So that in this case, there being a valid marriage found as between Isaac F. Snuffer and Kate ("Wallace) Snuffer in the State of Tennessee, and no finding that the same was dissolved by divorce or otherwise, we could content ourselves with directing a judgment for the defendant upon the finding of facts, and perhaps should do so, and would do so, without considering other questions, but for the serious attitude in which plaintiff and her children will be left, which condition admonishes us to discuss other features of the case.

II. The trial court having found all facts necessary to bring the case within the statute of Tennessee hereinabove set out, evidently entered its judgment upon the theory that this statute worked a dissolution. This statute is a mere bit of evidence in the case and the court should have found as a fact that there was such existing statute in the State of Tennessee, and that there was a dissolution of the marriage thereby. Courts cannot take judicial notice of the statute of a sister State, but the same must be proven as any other fact, and if it is a case wherein a finding of facts is being made, such finding should make a showing of the fact that there is or was such a statute.

But passing the defect in the finding of facts, and going to the real meat of this controversy, it is contended by the plaintiff that the trial court erred in finding that there was a valid marriag'e in Tennessee, in 1860, but if there was, then the same was dissolved by force of this statute. These questions we will consider, but in reverse order.

1. Snuffer was domiciled in Missouri during all the time of the running of this statute, that is to say, for five years after he last wrote his Tennessee wife, or she last wrote him. The wife was at all times domiciled in Tennessee. What then was the effect of this statute? How does it affect Snuffer of Missouri, and Mrs. Snuffer of Tennessee? Can a man desert Ms wife, domicile himself in another State, hide himself so that his wife cannot know whether he is living or dead, and then at the end of five years come out in the sun light a divorced man? In other words, even if the statute in other ways has life and substance, can its beneficent influence be invoked by one who deserts his spouse, and was all the time violating, not only the obligations of his marriage vows, but the law of the land as well? These are ¿some of the questions suggested.

(a) We are of the opinion, first, that this statute of Tennessee has no extra-territorial force and could have, for that reason, in no wise have changed the status of Snuffer domiciled in the State of Missouri. [State Bank of Eagle Grove v. Dougherty, 167 Mo. 1; State v. Clark, 178 Mo. 20.]

(b) Tracing the history of this statute, we find that its provisions were first intended to apply to prosecutions for bigamy. In the Laws of Tennessee, 1829, chap. XXIII, sec. 16, p. 29, we find this langauge:

“Proviso — No person shall be deemed guilty, under this section, whose husband or wife shall be continually remaining beyond the limits of the United States for the space of five years together; or whose husband or wife shall absent him or herself the one from the other, for the space of five years together, the one of them not knowing the other to be living within that time. ’ ’

It is true that in Code of Tennessee, 1858 (Meigs & Cooper), it appears in section 2438, in language as in the statement of this case first quoted. We can see how the Legislature as bearing upon the question of intent, might give the defendant in criminal cases where he has acted in good faith the benefit of a statute of this kind, but as a statute to absolutely dissolve the marital relations, sacred as they are and should be, we have serious questions of the validity of such statute in view of the well-settled doctrine of public policy, if it is to be construed to dissolve marriage ties as to tbe party in fault, or the wrongdoer. But whatever force may be given to it in Tennessee (although we have found no construction given it by the courts there) we hardly feel that it should be transplanted and permitted to grow in this State, at least without some legislative sanction.

(c) However, whatever be the value of this statute, as a law, either in or out of the State of Tennessee, in our judgment it cannot be strained to an extent as would relieve the plaintiff from the acts of Isaac F. Snuffer. Under the-evidence Snuffer left his wife in Tennessee. Can it be said that the statute was intended to protect the party in the wrong? If so, all a resident of Tennessee, desiring a dissolution of the bonds of matrimony, would have to do, would be to come to Missouri, hide out for five years, keeping his place of hiding unknown to his wife in Tennessee, and at the end of the time, the marriage vows have been wiped out, the bonds of matrimony dissolved, and all this for the party in fault. Such is not the law, and in construing a very similar statute the Court of Appeals in New York has so held. [Gall v. Gall, 114 N. Y. 109; see also, opinions fully as strong in Wyles v. Gibbs, 1 Redf. 387, and Machini v. Zanoni, 5 Redf. 492.]

In the case at bar there is no evidence of the good faith of Snuffer in this second marriage. There is no evidence that he knew whether his wife in Tennessee was living or dead. She was living when he last heard from her, and when he last made an effort to hear from her, so far as this record shows. In our judgment, if a statute such as relied upon here is to be held valid at all, it must be limited to the confines of the State giving it birth, and there construed to apply to the injured and innocent party to the marriage contract, or at least to the one shown to have acted with the best of faith, as seems to be the rule in New York.

We conclude, therefore, that this statute did not dissolve the marriage between Isaac P. Snuffer and Kate (Wallace) Snuffer, if there was such marriage.

III. We now come to the question of the validity of the Tennessee marriage. The trial court found that there was a valid marriage and in the finding we concur. Respondent contends that a common law marriage was not recognized in Tennessee, and that the proof in this case fell short of a statutory marriage. As we have gone behind the finding of facts upon other questions in this case, we will do the same as to this question. The evidence shows a public marriage and a ceremony by a minister of the Gospel and a living together as man and wife for several months thereafter. No records or license are shown, and a license seems to have been required. Respondent, however, practically concedes a good common law marriage, if such a marriage was good in Tennessee at that time.

As holding that a common law marriage was not good in Tennessee we are cited to two cases; Bashaw v. State, 1 Terger 177, decided in 1829, and Grisham v. State, 2 Terger 595, decided in 1831. These were criminal prosecutions, the first for bigamy, and the other for open and notorious lewdness. In the first, it is true that Whyte, J., and Catron, J., in their opinion held to the doctrine that a common law marriage should not be recognized, but Peck, J., who concurs in the result and in not applying the common law doctrine to the case at bar, says:

“To all purposes except two, cohabitation alone is necessary — the one is, where the question of marriage arises on an indictment for bigamy — the other, in a suit for criminal conversation. These exceptions are made in tenderness to the party accused. In other cases touching the proof of marriage a sensible and obvious rule of evidence has been let in, to-wit, that where persons have held themselves out as filling any particular station, they shall not be permitted to dispute that they had been regularly called to fill that station; and though this rule is departed from in the particular case before ns, yet it does not, for that reason, follow that every mimitia of the marriage must be proved, to make it a legal marriage. The act says a license may be issued, but it cannot be pretended by any lawyer that a marriage publicly made, and a community called to witness it, was not a legal marriage, and binding upon the parties. No court, for the want of a license, would pronounce the marriage clandestine — no rule of law would permit such a construction.”

In the second case mentioned, Whyte, J., cites with approval the opinion written by him in the Bashaw case,

Later, however, in 1842, we find the common law doctrine of marriage applying in civil cases, in case of McCorry v. King’s Heirs, 3 Humph. 273, expressed in this language by Reese, J:

“The whole body of the common law on the subject of the domestic relations, and especially the relation of baron and feme, except so far as changed and modified by statute, has ben adopted among us.”

In 1846, Green, J., is of opinion that the question passed upon in the Bashaw case deserves a grave reconsideration, but that it was not necessary to go into it in the case, then in hand, the case of Rice v. State, 7 Humph. 14. The learned judge uses this language:

“Whether, where an actual marriage has taken place, and the parties have cohabited as man and wife, the marriage shall be held void for any irregularity of the license, or bond, or certificate of solemnization, deserves a grave reconsideration. But this is not a fit case for such investigation, as there is no proof here of the marriage, except that which is afforded by the certified copy of the license, and the return of the justice of the peace thereon.”

In 1860, in case of Johnson v. Johnson, 1 Coldw. l. c. 630, McKinney, J., expresses his doubt in this language :

“It seems to be supposed that the case of Bashaw v. State, 1 Terger 177, and Grisham v. State, 2 Terger 589, established the general and unqualified proposition that the common law mode of solemnizing the matrimonial union is abrogated absolutely by our statutory provisions; and that a marriage in that form is of no validity in any case whatever. Whether this conclusion can be sustained, either upon sound principle, or weight of authority, we need not now stop to consider. For the purpose of the present determination, it might be conceded (though we express no opinion upon the point), that the marriage was illegal, for want of compliance with the formalities prescribed by the statute. ’ ’

This case upon the whole practically disapproves of the doctrine of the Bashaw case.

All apparent conflicts in the Tennessee cases are readily cleared up when we get the general rule and then apply the statutes in force. The general rule is thus stated in 19 Am. and Eng’. Ency. Law (2 Ed.), 1195:

“In nearly all the States the statutes direct that a license must be procured, that only certain persons shall perform the eermony, that a number of witnesses shall be present, that a certificate of marriage shall be signed, returned, and recorded, and that persons violating these provisions shall be guilty of a criminal offense and liable to certain penalties. Such statutes are directory only, addressed to clergymen, magistrates, and public officers, to secure publicity and a record of the evidence of marriage. In the absence of any positive provision declaring that all marriages not celebrated in the manner prescribed shall be void, it is generally held that a marriage without conformity to such regulations is valid if the parties have entered into the contract of marriage according to the common law.”

Among the cases cited in support of the text, the author cites from Tennessee, the more recent cases, Andrews v. Page, 3 Heisk. 653, and Johnson v. Johnson, 1 Coldw. 626. He also cites the Bashaw and Grisham cases. In onr judgment the Bashaw; and Grisham eases can he recognized as good law, and yet as not authority in the case at bar. One of the statutes considered in the Bashaw case provided: ‘ And all marriages solemnized as aforesaid without such license shall be and are hereby declared illegal and void. ’ ’ This statute was one of the potent factors in the decisions in these two eases. At the time of the marriage involved herein, 1860, there was no such positive declaratory statute, but only the usual directory statutes described in the text from Encyclopedia of Law. So that the court might properly hold at the one time, with this express statute, that no common law marriage could be recognized, but would be unwarranted to so hold under the statutes in force at the date of this marriage, which was Code of Tennessee, 1858 (Meigs & Cooper), secs. 2436 to 2447. There are no words of nullification in these sections. It is true that penalties are provided, as penalties are provided in Missouri and other States, but the general rule, and the one supported by the consensus of opinion, is, that unless there is an express nullifying statute, common law marriages are valid. We find no civil case, even in Tennessee, where this doctrine has not received recognition.

However harsh it may seem to be as to the plaintiff and her children, we are compelled to hold that in this case, the evidence satisfactorily shows the previous marriage of Isaac P. Snuffer, in 1860, and fails either in law or fact to show a dissolution thereof. It follows, leaving out the technical question of the defect in the finding of facts, that the judgment herein should be reversed, and the cause remanded to the circuit court, with directions to enter up judgment for the defendant upon the finding of facts, and it is so ordered.

All concur.


text:
    LOUISA HAFNER v. ST. LOUIS TRANSIT COMPANY, Appellant.

    Division One,
    June 19, 1906.
    NEGLIGENCE: Concurrent: Crossing Street Car Track: Obstructed View. It is negligence for a motorman to run his car at a high rate of speed to a crossing where pedestrians are liable to be, when his view of the crossing is so obstructed by a passing wagon that he cannot see whether or not the street crossing is clear; but it is also negligence in a full-grown man to approach a railroad track from behind a wagon which so obstructs his view that he cannot see whether or not a car that he knows is liable to be coming is actually coming and to enter upon the track without looking or pausing until the obstruction to his view has passed. And when the negligence of the motorman and of the pedestrian combine, in those respects, to produce the injury to the pedestrian, the street railway company is not liable.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Reversed.

      J. W. Jamison with Boyle & Priest for appellant.
    The demurrers to plaintiff’s evidence and to all the evidence should have been sustained. First. Plaintiff failed to prove any substantial negligence whatever. Kennedy v. Railroad, 43 Mo. App. 1; Edwards v. Ins. Co., 100 Mo. App. 712; Hanselman v. Railroad, 88 Mo. App. 123; Heyde v. Railroad, 110 Mo. 272. Second. The evidence shows conclusively that deceased in going npon the track stepped from immediately behind a large wagon that was loaded with boxes, and which shut off his view of the car, and went upon the track when the car was so close to him that it was impossible for the motorman, with the means and appliances at his command, to prevent the collision, and that deceased was struck and injured by reason of his failure to exercise reasonable care under the' circumstances and surroundings to look and listen for the car. Moore v. Railroad, 176 Mo. 528; Guyer v. Railroad, 174 Mo. 344; Barrie v. Transit Co., 102 Mo. App. 87; Hook v. Railroad, 162 Mo. 569'; Tanner v. Railroad, 161 Mo. 497; Kreis v. Railroad, 148 Mo. 321; Grocer Co. v. Railroad, 89 Mo. App. 534; Watson v. Railroad, 133 Mo. 250; Molyneaux v. Railroad, 81 Mo. App. 25; Hayden v. Railroad, 124 Mo. 566.

      A. B. Taylor for respondent.
    (1) The evidence made a case for the jury. Where a person, through the negligence of another, is put in a position of peril, the fact that he or she does not choose the wisest or safest mode of escape from such peril is not negligence as a matter of law. Kleiber v. Railroad, 107 Mo. 263; Bischoff v. Railroad, 121 Mo. 225; DeBolt v. Railroad, 123 Mo. 521; McPeak v. Railroad, 128 Mo. 651. (2) A person crossing a railway track in the street has a right, in determining his action, to expect, until the contrary appears, that a car will be operated in obedience to law. Hutchinson v. Railroad, 161 Mo. 256; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo. 191; Eckhard v. Railroad, 190 Mo. 613.

      Note. — This case should be read in connection with Mullin v. Transit Co., 196 Mo. 572, as they illustrate the difference between contributory negligence in a child and in a man under like circumstances. The opinion in each case was handed down the same day, but as a motion for rehearing was filed in this case, the Reporter was compelled to give it the date that motion was overruled.

   VALLIANT, J.

Plaintiff’s husband was struck and killed by a car on defendant’s street railroad and she brings this suit under section 2864, Revised Statutes 1899, to recover $5,000 damages. The petition charges negligence as at common law of the defendant’s servants in operating the car, and pleads also the Vigilant Watch ordinance and negligence in failing to observe it.

The negligence charged, as independent of the ordinance, was failure to use care to watch for persons on the crossing or moving towards it in danger of the car, failure to use care to stop the car and failure to give signal of its approach. The negligence charged as under the ordinance was in failing to keep the watch and failing to stop the car on the first appearance of danger in the shortest time and space possible. The answer was a general denial and a plea of contributory negligence.

The trial resulted in a verdict and judgment for the plaintiff for $5,000, from which defendant appeals.

The testimony in behalf of the plaintiff tended to show as follows:

Defendant operates a double-track street railroad in J efferson avenue; the cars are propelled by electricity. The general course of Jefferson avenue at the place of the accident is north and south. University street, running east and west, crosses Jefferson avenue at right angles. Plaintiff’s husband was a barber, fifty-three years old, a stout, heavy man, weighing about 250 pounds, and rather short of stature. He lived in the vicinity of this crossing.

At the time of the accident he was aiming to cross from the west to the east side of Jefferson avenue along the south line of University street. When he was yet on the west side of Jefferson avenue, between the sidewalk and defendant’s west track, plaintiff’s witness, who stood at the northwest corner of Jefferson avenue and University street, saw a car of defendant south of the crossing coming north on the east track at a distance estimated by the witness to be seventy-five or one hundred feet from the south crossing, the witness judged it to be coming at the rate of twelve or fifteen miles an hour. There was at the time a procession of wagons, three, four or five, moving south along the west track of defendant’s road. These wagons were equipped for hauling sand, each had a bed about a foot or a foot and a half high, the tops of the wagon beds were about as high as plaintiff’s husband’s shoulders. After two or three of these wag’ons had passed him, the plaintiff’s husband started across the street just behind one and in front of another, he passed over the west track, crossed the space between the tracks, stepped on the east track and to the middle of it, when he looked and saw the coming car, he hesitated a moment, then attempted to step back, but before he got out of the line of the ear he was struck by the west corner of the dash-board, thrown under the wheels and killed. "When he stepped on the east track the car was about thirty-five feet from him. The car stopped in thirty or thirty-five feet of the point of the accident. Plaintiff’s testimony also tended to show that the mo-, torman was paying attention to some girls on the sidewalk and neglecting to attend to his-car and that there was no gong sounded. A city ordinance limiting the rate of speed of cars to eight miles an hour was put in evidence over the objection of defendant, the ordinance not having been pleaded.

At the close of the plaintiff’s case defendant asked an instruction in the nature of a demurrer to the evidence which the court refused and defendant excepted.

The evidence in behalf of the defendant tended to show as follows:

The car turned into Jefferson avenue one block south of University street and stopped there to discharge a passenger, then started on towards University street, gaining a speed of about ten miles an hour, the motorman saw the procession of wagons and rang his gong vigorously and continuously to warn the drivers of the wagons, he received a signal from the conductor or a passenger to stop at University street and slowed down with a view to stopping at the north line of University street, and was running four or five miles an hour. Besides the sand wagons there was also a wagon loaded with boxes so high that he could not see a man behind it; just as the car came alongside this box wagon the plaintiff’s husband came out from behind it and stepped on the track within a few feet of the car, the motorman holloed to him, sounded the gong, applied the brakes and did everything possible to avert the accident but could not do so, he stopped the car within ten feet, but it was too late. Defendant’s testimony also tended to show that the motorman was not noticing the girls but was attending to his duty. '

Plaintiff had but one witness to the accident and he stood at the northwest corner of the intersecting streets. This procession of wagons was between him and the car, yet he said that he saw the motorman’s hands on the gate, not on the controller or brakes where they should have been, and saw that he was flirting with girls on the sidewalk. Let us take that for what it is worth, and take also his statement that the car was running twelve or fifteen miles an hour and yet that it stopped in one car’s length or thirty or thirty-five feet after striking the man. It taxes one’s credibility to believe that the motorman who stopped his car going at that high rate of speed within thirty-five feet was giving his attention to girls on the sidewalk and neglecting his duty, yet that, with the statement of this same witness that the motorman did not ring his gong, is all that there is tending to show that the motorman was negligent. But conceding that an inference of negligence could be fairly drawn from that testimony, and' leaving for the present the defendant’s testimony as to the wagon loaded with boxes out of the case, and conceding that the motorman, if he had been looking over and across the top of the sand wagon, would have seen the plaintiff’s husband, where will that evidence lead us? If the motorman saw the plaintiff’s husband walking towards the track, indicating by his course that he aimed to cross it, the motorman could also see that his car was in plain view of the man and had a right to presume that the man would stop1 and let the car pass. The coming car was a very much more conspicuous object to the man behind the wagon, than he was to the motorman. The sand wagon covered the man behind it up to his shoulders, only his head was above it, but he could see the coming car if he was looking, because that was higher than the wagon.

It makes no differencé, therefore, whether we take the evidence of the plaintiff or that of the defendant, that is, whether it was only á sand wagon over the top of which the motorman could see the head of the man, or a wagon loaded with boxes that concealed him entirely from view, if it was a sand wagon and the motorman saw him, the motorman had a right to presume that he was looking and would see the car and would stop; if it was a box wagon the motorman could not see him and he could not see the car; if it was negligence for the motorman not to have anticipated that a man might emerge from behind the wagon it was negligence also for the man not to anticipate that a car might be coming on a track which he knew was there and on which he knew a car was liable to come and of which he saw that his view was for the moment obstructed by the wagon. If there was negligence in the one there was at least equal negligence in the other contributing to the result.

It is negligence for a motorman to run his car át a high rate of speed to a crossing where pedestrians are liable to be when his view of the crossing is so obstructed by a passing wagon that he cannot see whether or not the crossing is clear, hut it is also negligence in a full-grown man to approach a railroad track behind a wagon which so obstructs his view that he cannot see whether or not a car that he knows is liable to be coming is actually coming and enter upon the track without looking or pausing until the obstruction to his view has passed and when the negligence of the two thus combined to cause the accident, the street railroad company is not liable.

As to the alleged failure to stop the car on the first appearance of danger in the shortest time and space possible as the ordinance requires, there was no evidence to sustain the allegation. According to the plaintiff’s testimony when the motorman saw her husband, or would have seen him if he had looked, he was behind the sand wagon and in a place of safety, and the motorman had no right to presume that he would shut his eyes and walk into a place of unsafety.

According to defendant’s testimony there was a wagon loaded with boxes which prevented the motorman from seeing the plaintiff’s husband and prevented him from seeing the car, and “the first appearance of danger” was when the man emerged from behind the car and stepped on the track immediately in front of the car, and there is no evidence that the motorman did not then do everything in his power to prevent the accident.

The instruction in the nature of a demurrer to the evidence should have been given. The judgment is reversed.

All concur.


text:
    COWAN et al. v. SHAVER et al., Appellants.
    Division One,
    June 19, 1906.
    1; WILL CONTEST: Conspiracy: Motive: Will of Devisee. Where the testator, seventy-five years old, possessed of $10,000, gave each of his nine children $30 and the balance of the property to his wife, and she soon afterwards made a will by which she left all her property to one daughter, and died, it is competent in a suit to set aside his will, to admit her will in evidence as tending to show the result of an alleged conspiracy between that daughter and her husband and father-in-law, who was the testatrix’s brother, to direct the property into the daughter’s family. It showed motive for the conspiracy by showing how in fact the result was worked out.
    2. -: Burden orr Proponents. The burden is on the proponents to prove the due execution of the will and that testator had mental capacity to know and understand what he was doing. That burden they must assume, even though contestants introduce no evidence, and even though they abandon the contest. But the proponents are not required to prove a negative; for example, they are not required to prove that there was no fraud or undue influence exerted.
    3. -: -: Statement of Testator: His Understanding of the Will. The will gave the testator’s nine children $30 each, and the balance of his property, amounting, to nearly $10,000, to his wife. Held, that there being sufficient evidence offered by proponents themselves that the testator understood at the time the will was made that he was giving his property to his wife for life and that after her death it would go in equal parts to his children, the court properly told the jury that if such was his understanding the paper was not his will.
    4. -: Scrivener’s Understanding: Interpretation of Testator’s Words. It is immaterial whether or not the scrivener thought that the will he drew expressed the testator’s purposes and wishes. If the testator told him to draw it one way and he drew it another, and testator signed it under the belief that it was written as he had directed, it is not his will.
    5. -: Incapacity: Undue Influence: Imposition. Where a feeble old man, illiterate, surrounded by those instrumental in bringing the will about and who shared most from its provisions, thought he was signing a will which gave his property to his wife for life and to his children equally at her death, whereas it gave it to her absolutely, then, whether the act was the result of a diseased mind, or of a feeble mind imposed upon, the paper he signed was not his will, and the court properly so instructed the jury.
    6. -: -: -: Feebleness.. Mere feebleness of mind and body are not alone sufficient to avoid a will, but they are facts to be considered when its validity is on trial, and they are to be considered with especial reference to the facts of the particular case.
    7. -: Attestation: In Presence of Testator. The statute expressly requires the will to be subscribed by the witnesses in the presence of the testator.
    Appeal from Sullivan Circuit Court. — No» Jno. P. Butler, Judge.
    Affirmed.

      N. A. Franklin, B. L. Robison and Jno. W. Bingham for appellants.
    (1) The court erred in admitting in evidence the will of Polly Cowan. No disposition she could make of the property bequeathed to her could in any way affect the validity of the will of John Cowan. Wood v. Carpenter, 166 Mo. 485; Schierbaum v. Schemme, 157 Mo. 19; Von de Veld v. Judy, 143 Mo. 368; King v. Gibson, 191 Mo. 307. (2) The court erred in admitting the testimony of William and Susan Cowan as to the disposition the deceased said he had made of his property in his last will. Such statements before and after the execution of the will are competent as external manifestations of his mental condition, and of the state of his affections, and not as evidence of the truth of the facts stated. But in the case at bar the deceased’s statements were made the basis of plaintiff’s instruction 1, which told the jury in effect that if they believed from the evidence that deceased thought he had made a disposition of his property other than what he had, then the finding must be against the will. Crowson v. Crowson, 172 Mo. 703; Rule v. Maupin, 84 Mo. 587; Tibbe v. Kamp, 154 Mo. 5791; Thompson v. Ish, 99 Mo. 160; Schierbaum v. Schemme, 157 Mo. 1. (3) There was no evidence that the deceased, John Cowan, was not of sound mind and it was error in the trial court to submit that issue to the jury. McFadin v. Catron, 138 Mo. 225; Tibbe v. Kamp, 154 Mo. 579; Martin v. Bowdem, 158 Mo. 379; Berberet v. Berberet, 131 Mo. 399; Schierbaum v. Schemme, 157 Mo. 1; "Wood v. Carpenter, 166 Mo. 465; Story v. Story, 188 Mo. 110 ; Hughes v. Rader, 183 Mo. 630. (4) The court erred in refusing the defendants’ instruction 1. Wood v. Carpenter, 166 Mo. 485; Schierbaum v. Schemme, 157 Mo. 19; Von de Yeld v. Judy, 143 Mo. 368; King v. Gilson, 191 Mo. 307. (5) The court erred in refusing defendants’ instructions 2, 3. and 4, and each of them. There was no testimony that rises to the dignity of evidence that either Polly Cowan, Pinky Shaver or John W. Shaver attempted in any way to influence the deceased in making a will. On the other hand, it is shown by the contestants themselves that whenever Polly Cowan spoke of her husband’s making a will she insisted that it be made as he wanted it, and she specifically told him, according to the testimony of George W. Cowan, that if it was not made as he wanted it, the will could be set aside. These are the only words she is known to have uttered in any way about the will; and Pinky Shaver is not shown to have ever said one word to her father in regard to a will. Norton v. Paxton, 110 Mo. 456; Wood v. Carpenter, 166 Mo. 465; Kischman v. Scott, 166 Mo. 214; McFadin v. Catron, 138 Mo. 197; Campbell v. Car-lisle, 162 Mo. 634; Sehr v. Lindemann, 153 Mo. 276; Crossan v. Crossan, 172 Mo. 691; Thompson v. Ish, 99 Mo. 160; Tibbe v. Kamp, 154 Mo. 545; Story v. Story, 188 Mo. 110. (6) The court erred in giving plaintiff’s instruction 2. There is no evidence that either John Shaver, Polly Cowan or Pinky Shaver exercised any controlling influence over the mind of John Cowan which induced him to make or execute the will in question, but the instruction is broader than the petition in that the instruction authorized the jury to find against the will, “if John Shaver, Pinky Shaver, Polly Cowan, or either of them, or any other person or persons in their behalf, or in behalf of either of them, by persuasion, importunity or any other device or machination controlled, directed, restrained or coerced the will, or confused the mind of the alleged testator, John Cowan, or confused or overcome his power of judgment in the execution of the paper writing read in evidence as and for his last will and testament, so that said instrument does not express the will, wish or desire of said testator in the disposition of his property, then and in that event your verdict should be for plaintiffs. ’ ’ Story v. Story, 188 Mo. 110.

      Golfee & Eubanks and J. G. McKinley for'respondents.
    (1) The will of Polly Cowan was competent to show the carrying out of the original design of John Shaver, Pinky Shaver and Polly Cowan to get the property out of the Cowan and into the Shaver family. It was, to say the least, a strong circumstance to he considered by the jury along with other facts and circumstances. (2) Statements of deceased before and after executing the instrument as to what disposition he intended to make and had made of his property are competent to show his mental condition and state of his affections. In other words, who were the objects of his bounty and what he thought of doing or had done for them. Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170. (3) In Missouri a will contest is an action at law, and the Supreme Court will not weigh conflicting evidence to determine whether the jury found against the weight of the evidence, but will only examine the record to see if there is any testimony to support the verdict. Sayre v. Princeton University, 192 Mo. 95; Schoff v. Peters, 111 Mo. App. 459; Roberts v. Bartlett, 190 Mo. 680; Crossan v. Crossan, 169 Mo. 631. (4) Where there is any substantial evidence that the testator was not of a disposing mind and memory at the time of the execution of the will, the case should go to the jury. Crossan v. Crossan, 169 Mo. 631; Fulbright v. Perry County, 145 Mo. 432; Southworth v. Southworth, 173 Mo. 59. (5) Where there is any substantial evidence upon which a verdict setting aside a will, as being the result of undue influence, can rest, the case is one for the jury. Tibbe v. Kamp, 154 Mo. 545; Southworth v. Southworth, 173 Mo. 59; Bradford v. Blossom, 190 Mo. 110. (6) Undue influence is a question of fact and, like other questions of fraud and bad faith, can rarely be proved by direct and positive evidence, but may be established by facts and circumstances, and upon grounds of public policy the doctrine of courts of equity has been adopted by courts of law in will contests. Dausman v. Rankin, 189 Mo. 677; Cash v. Lust, 142 Mo. 630; Bradford v. Blossom, 190 Mo. 110. (7) A testator must have sufficient understanding to comprehend the nature of the transaction in which he is engaged, the nature and extent of his property, and to whom he desires to give it, and must give it without the aid of any other person. Sayre v. Princeton University, 192 Mo. 95. (8) In a will contest, where the verdict is clearly for the right party, it is wholly immaterial if error occurs in the instructions. Von de Yeld v. Judy, 143 Mo. 348. (9) In a suit to contest a will, where the evidence shows that the will would not have been made by deceased but for the influence exercised over his mind and will, the jury should find that the will was procured by undue influence. Harvey v. Sullens, 46 Mo. 147. (10) Ordinarily the burden of showing undue influence, in a suit to set aside a will, is on the plaintiff; but where confidential or fiduciary relations exist, or some pecuniary benefit is to be derived directly or indirectly- the rule is changed. Bradford v. Blossom, 190 Mo. 110 ; Barkley v. Cemetery Assn., 153 Mo. 300; Tibbe v. Kamp-, 154 Mo. 545-; Harvey v. Sullens, 46 Mo. 147; Dausman v. Rankin, 189 Mo. 677.
   VALLIANT, J.

This is a contest over a paper writing purporting to be the last will and testament of John Cowan, deceased, who died in Sullivan county in May, 190-2, leaving surviving him his wife, Polly Cow-an, and seven sons and two daughters, and leaving also real and personal estate to the value of about $10-,000. By the will in question the testator gives to each of his children the sum of $30, and the balance of his property to his wife, who was also named as sole executrix without bond. The will was admitted to probate and the widow qualified as executrix, but she died and letters of administration d. b. n., c. t. a., were issued in May, 1903, to Henry F. Cowan, a son of the testator.

The widow, Polly Cowan, left a will by which she gave the principal part of the estate to her daughter Pinky Shaver. The plaintiffs in this suit are the sons and one of the daughters of the testator; the defendants are the other daughter, Pinky Shaver, and the minor children of a deceased daughter, for whom a guardian ad litem was duly appointed and answer filed.

The petition alleges that John Cowan was not of sound mind when he executed the alleged will and that it was obtained by the exercise of undue influence exerted by Polly Cowan, Pinky Shaver and John Shaver.

John Shaver was the brother of Polly Cowan, and his son married Pinky. The theory of the plaintiff is that John'Shaver was the chief schemer and united with his sister Polly and his daughter-in-law Pinky to divert the property from the Cowans to the Shavers.

The testimony on the part of the plaintiffs tended to prove as follows:

John Cowan, the alleged testator, was about 75 years old when he died, and was quite feeble in body and mind. He had come to Missouri when he was a young man and settled in Putnam county, where he lived until about two years before his death, when he moved to Sullivan county. He was a farmer and had accumulated an estate worth about $10,000'. Before he moved from Putnam county his children, who were all of mature years, the eldest being 51 years old, had all left the paternal home and established homes of their own. He had been, even in his old age, a vigorous man in mind and body until a few years before his death, when his dwelling house was destroyed by .fire and when, in his efforts to save his property from the-flames, he received severe burns on his leg and his head from which he never recovered. One effect of the burns was a persistent, gangrenous sore which caused blood poisoning, a breaking down of his physical and mental strength.

He was unable to attend to his business and placed it in the hands of John Shaver, his wife’s brother, who managed it for him until his death. John Shaver lived in the neighborhood into which the old man moved in Sullivan county and exercised control over most of his affairs. The testimony of two physicians who attended ■ him, and that of members of his family, tended to show that his mind was not only weak but diseased, and that he had not sufficient mind and memory to understand the nature of the will he was attempting to make.

The testimony also tended to show that John Shaver into whose hands he had placed his business affairs was the active agent in bringing about the execution of this document. He had been urging the testator for some months to make a will, and this paper was executed in Shaver’s house.

The circumstances show that there had been an arrangement made in advance, by whom it is not expressly shown, for the execution of this paper. On the morning of its execution the old man was driven in a vehicle with his wife and daughter, Pinky Shaver, to the residence of John Shaver, where a man to draw the will had been requested to come and two men to witness it. It does not expressly appear who requested these men to attend at John Shaver’s house on that morning for that purpose,'but it appears that Pinky’s husband, who was John Shaver’s son, was the messenger who was sent to ask the man who wrote the will to come. This man was a farmer and had also sometimes taught school. He had never written a will before, and did not know what he was called to go to John Shaver’s house on that occasion for until he got there. When informed of what he was expected to do he asked for a form and John Shaver gave him a form, just how far this document conforms to that form does not appear. The writer of the will, who was a witness for defendants, testified that he wrote it at the dictation of the testator, but both he and another one of the subscribing witnesses, who was also a witness for defendants,were under the impression that the testator had expressed the- purpose to give the property to his wife for life and to his children equally at her death. While the will was being written John Shaver came in to give the form; once the testator’s wife was called, when he could not remember the names of some of the children.

On the part of the defendants the testimony tended to show that John Cowan was of sound and disposing mind and memory when he executed the will and that it was his own free act uninfluenced by John Shaver or any one else. Also that Pinky had lived with her father, nursed and tended him in his affliction, and devoted her life to his service.

The cause was submitted to the jury under instructions, some of which are assigned as error and will be considered in their order. There was a verdict that the paper writing in question was not the will of John Cowan, deceased, and from the judgment on that verdict the defendants appeal.

I. Appellants’ first point is that the court erred in admitting over their objection the will of Polly Cowan in evidence.

The will was admissible in evidence as tending to show the result of the alleged conspiracy of John Shaver and his sister and daughter-in-law to divert the property into the Shaver branch of the family. Showing a motive for the conspiracy by showing how in fact the result was worked out. There was no error in admitting that will in evidence. •

II. William Cowan and Susan his wife, being unable to attend the trial, a written statement of what their testimony would be was offered by the plaintiffs which it was agreed might be read as what their evidence would be if they were present, but defendants objected to the comeptency of the same. The testimony was to the effect that the witnesses heard John Cowan say, referring to the will now in question, “that he had fixed it so his property would go to his wife, Polly Cowan, as long as she lived, and then it was to be equally divided between his children.”

Appellants in their brief say that this was competent evidence to show the testator’s mental condition and affections, but they complain that it was made the basis for instruction numbered 1 given for the plaintiffs, the closing sentence of which was: “If he (John Cowan) signed the will in question with the understanding and belief that such will conveyed only a life estate to his wife, Polly Cowan, with the remainder to his children in equal parts, then the will offered is not his will and you should so find.” Of that instruction the appellants say it broadens the issues made by’ the pleadings and allows the oral statements of the testator made after the execution of the will to c'ontradict its terms.

A will contest has its peculiar features. It comes after the will has been formally admitted to probate in the probate court, and it has the effect to throw upon those who assert the will the burden of proving it in the circuit court. The plaintiffs or contestants in such case may not introduce any evidence at all, they may even expressly abandon the contest, still the burden of proving the will devolves on those who would maintain it; they must prove that it was executed as the law requires and that the testator had mental capacity to know and understand what he was doing. The proponents are not required to^ prove a negative, for example, they are not required to prove that there was no fraud or undue influence exerted, but they are required to prove’ every affirmative fact that is essential to the execution of a valid will, even though the contestants offer no evidence at all.

If, therefore, in their effort to prove the due execution of the will, the proponents themselves show that the paper offered is not what the testator was made to believe it was when he signed it, it cannot be adjudged to be his will, even in the absence of any averment to that effect in the petition of the contestants. The ultimate question in the case is, is this the last will and testament of the alleged testator1? and the affirmative of that issue is on the proponents.

Independent of the evidence of William and Susan Cowan, there was sufficient in the evidence introduced by the proponents themselves to justify the court in submitting to the jury the question contained in this instruction. The man who wrote the will and witnessed it and one of the other subscribing witnesses said they understood the testator to say in effect that he wanted the property to go to his wife for life and to his children equally after her death. That wish is at such variance with the terms of the alleged will that it is a strong circumstance going to show that the man did not comprehend the effect of the instrument he was signing. Mere feebleness of body and mind are not alone sufficient to avoid a will, but they are facts to be considered when tbe question of tbe validity is on trial, and they are to be considered with especial reference to tbe facts of the particular case. Here was an old man conceded to be feeble in body and mind, in tbe keeping, as it were, of bis trusted business agent, bis own wife and bis own daughter, illiterate, with no one present to advise bim except those who were instrumental in bringing about tbe execution of this paper. Under those circumstances if be thought be was signing a will that gave tbe property to bis wife for life and to bis children equally at her death, then whether tbe act was tbe result of a diseased mind, or of a feeble mind imposed upon, the result in law was the same, tbe paper be did sign was not bis will and tbe court was right in so instructing tbe jury.

A verdict against tbe will on that issue does not necessarily mean that tbe scrivener was guilty of fraud. He was a novice in tbe business of writing wills, this was bis first' attempt, be called for a form and followed it, be knew that tbe wife of tbe testator was also tbe mother of all tbe children and be may have thought that tbe giving of tbe property to her was but tbe establishment of one stage in its devolution and that at her death it would descend to tbe children all alike. But it is immaterial what tbe scrivner thought about it, if tbe illiterate, feeble old man told bim to write it one way and be wrote it another, and it was signed under tbe belief that it was written as be directed, it is not bis will. Tbe court committed no error in that instruction.

III. Tbe case was given to tbe jury under instructions that authorized a verdict that tbe paper in question was not tbe will of John Cowan deceased if tbe jury should find that be was of unsound mind at tbe time of its execution or that it was obtained by undue influence. Appellants insist that there was no evidence on which to base those instructions. We think the evidence was sufficient to authorize the submission of the case to the jury on both those questions.

So far as the acts of the mother and daughter are concerned the evidence does not go much farther than to show their acquiescence in the purpose of John Shaver and their assistance in his efforts, but that is sufficient. They may have considered the fact that Pinky had lived with her father and nursed him and rendered more service to him in his affliction than the other children, and that she was therefore entitled to more than the rest and they may have been right in so thinking, but that would not justify them in the eyes of the law in doing’ what the evidence on the part of the plaintiffs tends to show that they did. There was no error in submitting those questions to the jury.

IY. Complaint is made of plaintiff’s instruction numbered 3, because it is said that it implies that it is necessary that the subscribing witnesses should sign the will in the presence of the testator. If the instruction so implies it is entirely correct in that particular,' because the statute expressly requires that the will “shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.” [Sec. 4604, R. S. 1899.]

V. The court at the request of the defendants gave twelve instructions in which the law- bearing on the questions of mental capacity, undue influence and requisites to the execution of a will, was elaborately set out in a form as favorable to the defendants as they had the right to ask.

The court refused four instructions asked by defendants, the first of which would have withdrawn from the consideration of the jury the will of Polly Cowan, the second declared there was no evidence that John Shaver exercised any undue influence to cause John Cowan to make the will, the third that Polly Cowan exercised no such influence, the fourth that Pinky did not do so and that the question of undue influence was withdrawn from the jury. From what has already been said there was no error in refusing those instructions.

The cause was fairly tried, there was substantial evidence to support the verdict and we find no error in the record.

The judgment is affirmed.

All concur.