author: RAILEY, C.

text:
    THE STATE ex rel. A. E. BLASER, Collector, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division One,
    December 30, 1918.
    1. COUNTY TAX: Forty Cents: Incorporated Cities. A levy of forty cents on the hundred dollars of assessed value of all property in the county, including the property in incorporated towns and cities, made by the county court, for current county expenses, in a county whose taxable wealth is more than six and less than ten millions, is a valid tax, and is not rendered invalid by Section 10481, Revised Statutes 1909, as amended by Act of 1913, Laws 1913, p. 667, requiring the court to levy a tax of not more than twenty nor • less than ten cents on all property outside of such towns, as a road tax.
    2. -: -: -: Set Apart for Road Uses. The road tax
    mentioned in said statutes is a part of the county funds, and if the court sets aside ten cents of the forty-cent levy for road purposes, as directed by said laws, still the taxpaver must pay the forty cents; and if it is not by formal order distributed as they or other statutes direct, it is nevertheless a trust fund, and the county court, after the tax is collected, may be compelled to transfer to the road fund the ten cents apportioned by those statutes to that purpose.
    3. -: Levied by County Court. If the tax is levied by the county court it cannot be held invalid on the theory that it was levied by the county clerk or his deputy, as in Railroad v. Apperson, 97 Mo. 300, or State ex rel. v. Hannibal & St. Joseph, 135 Mo. 618.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded.

      D. F. Calfee■ and H. J. Westimes for appellant.
    (1) If the levy made hy the county court was not properly divided or apportioned, the only remedy was by mandamus, or through a proceeding by the road district affected. (2) The county court had the right to make a levy, not exceeding forty cents on the $100 assessed valuation, for county purposes. See. 11, Art. 10, Constitution; Secs. 11420,11421 and 11422, R. S. 1909. And a road tax is a tax for county purposes within the meaning of the Constitution. State ex rel. Love v. Hannibal & St. J. Ry. Co., 101 Mo. 120; State ex rel. Vaught v. Railroad, 270 Mo. 261. (3) The first duty of the county court was to make a levy for county purposes sufficient' to pay the current expenses of the county for that year. Under the Constitution, counties are placed on a cash basis and the county government is required to pay the current expenses of each year out of the current revenue of that year. Secs. 11 and 12, Art. 10, Constitution; Anderson v. Ripley County, 181 Mo. 65; State ex rel. Egger v. Payne, 151 Mo. 671; Book v. Earl, 87 Mo. 246. And if Sec. 10481, R. S. 1909, as amended by Act of 1913, Laws 1913, pp. 667, 668, is to be construed as respondent contends, then its effect would be to deprive the county court of the right to make a levy for county purposes sufficient to pay the county’s current expense, and said Act of 1913 is unconstitutional and void, as being in violation of Sec. 3, Art. 10, State Constitution.

      Roy D. Williams for respondent.
    (1) There was no sufficient levy made by the county court of Cole County, and no such levy as the law required. St. Louis & S. F. Railway Co. v. Apperson, 97 Mo. 300; State ex rel. v. Hannibal & St. Joe Railway Co., 135 Mo. 619. (2) The Act of 1913, Laws 1913, pages 666-668, is constitutional and binding upon the county courts. Carthage Special Road District v. Ross, 270 Mo. 76; State v. Everett, 245 Mo. 706. (3) Under the Act of 1913 the county court was not only authorized but was imperatively directed to levy ten cents upon the property mentioned in Section 10481. There is nothing in the order set out indicating even an intention to levy the tax as required by Section 10481. The deduction of $17.07 was for the excess of the assessed valuation of the railroad property apportioned to the cities of Centertown, Lohman and Russellville. These towns were incorporated towns outside of special road districts, which are especially mentioned in the law.
   RAILEY, C.

This action was commenced in the circuit court of Cole County, Missouri, on May 23, 1915, by the State, at the relation of A. E. Blaser, Collector of the Revenue of Cole County, to collect from defendant $17.07 of hack taxes alleged to be due for the year ending June 1, 1913.

It appears from the record that the assessed valuation of Cole County for the years 1912 and 1913 was over six million and under ten million dollars. By virtue of Section'll of Article 10 of the Constitution of 1875 of Missouri, the county court of said county was authorized to levy, and did levy, forty cents on the one hundred dollars assessed valuation of property in said county for county purposes. The county court of said county, in making said levy, entered of record the following order:

“Ordered by the court that a tax be and the same is hereby levied upon the assessed valuation of Railroad, Telegraph, Telephone and Bridge Companies in Cole County, Mo., for 1913, as follows:

“State Rev. 15c, State Int. 2c, State Cap. 2c, total, 19c on the $100 assessed valuation, County Rev. for current expenses 40c, Inst. 5c, Sinking Fund 5c, total 50c on the $100 assessed valuation. Special road and bridge tax under constitutional amendment, 25c on the $100 assessed valuation.

“I. D. Bond, Presiding Judge.”

At the trial, it was stipulated and agreed that $17.07, the amount of the taxes sued for, exclusive of penalty, interest, fees and costs, was equal to the amount of taxes produced by a levy of ten cents on the one hundred dollars assessed valuation of the railroad property of the defendant, for 1913, in the towns of Russell-ville, Centertown and Lohman, and that said towns were incorporated in Cole County, Missouri, and were not in any special road district.

The contention of respondent was, and is, that the above levy was not authorized by law; that the statutes of Missouri required a levy of at least ten cents on the one hundred dollars’ valuation for road district purposes on all property outside of incorporated cities, towns and .villages in any special road district; that Cole County could levy, for county purposes, only thirty cents on the one hundred dollars valuation on respondent’s property in Russelville, Centertown and Lohman; and that the respondent company did not, therefore, owe the $17.07 which represented the difference between the amount produced by a forty-cent levy and the amount produced by a thirty-cent levy on defendant’s railroad property in said towns.

Appellant, by the reply and by declarations of law, attacked the constitutionality of Section 19481, Revised Statutes 1909, as amended by an act of the Central Assembly approved March 25,1913, Laws 1913, pages 667-8.

At the trial, appellant offered to show by the county clerk, deputy clerk and presiding judge of the county court of said county, as well as by the records thereof, that a levy of thirty cents on the one hundred dollars’ valuation for county purposes for the year 1913 would not have produced a sufficient amount of taxes to pay the actual running expenses of said county. Counsel for respondent admitted the testimony of said witnesses to be as offered by appellant, and that the records of said county would show the same thing.

It is conceded that defendant paid all of its taxes, except that sued for in this action.

Respondent offered no evidence.

The judgment of the lower court was for respond- . ent, and appellant, after motions for a new trial and in arrest of judgment were filed and overruled, appealed to this court.

■ 1. There appears to be no controversy over the facts in this case. The county court of Cole County, by an order entered of record, levied for county purposes forty cents on tbe hundred dollars for 1912 and 1913. As the assessed value of the property in said county was more than six and less than ten million dollars, the levy was made for the maximum amount authorized by Section 11 of Article 10 of our Constitution. In addition to the levy for State purposes, there was levied under the constitutional amendment of 1908, twenty-five cents on the $100 assessed valuation as a special road-and-bridge tax.

Respondent relies upon the Act of 1913, Laws 1913, at pages 667-8, which provides that:

“The county court in the several counties of this State, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law, outside of incorporated cities, towns and villages, a tax of not more than twenty cents, nor less than ten cents, on the one hundred dollars’ valuation, as a road tax, which levy shall be collected and paid by the collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the road district front which said tax was collected, and shall pay the same to the overseer of said district on the warrants of the county court. . . .” Section 10481, Revised Statutes 1909, of which the above act is amendatory, did not require a levy of at least ten cents on the hundred dollars’ valuation.

The validity of above Act of 1913 is assailed on the ground that its enforcement would not leave the county with sufficient revenue to meet its current expenses on a thirty-cent levy.

We have heretofore held that the road tax, contemplated by said Section 10481 and the Amendatory Act of 1913, is considered a part of the county funds, and, hence, must be governed by the provisions of Section 11 of Article 10 of our Constitution, limiting the rate in this case to forty cents on the one hundred dollars’ assessed valuation of property in said county. [State ex rel. v. Railroad, 270 Mo. l. c. 261, 192 S. W. 990; State ex rel. Love v. The Hannibal & St. J. Ry. Co., 101 Mo. 120.] Leaving ont of consideration the Act of 1913, supra, and considering the situation under Section 10481, as unamended, it is clear that the county court might have made a nominal levy for road purposes, under said section, and could have furnished funds o'ut of the-twenty-cent levy for road purposes under the constitutional amendment of 1908 (See Sec. 10482, R. S. 1909, as amended, Laws 1913, pages 668-9), to supply the deficiency, if necessary. If, therefore, the Act of 1913, Laws 1913, pages 667-8, be considered unconstitutional, it necessarily follows from the foregoing, that relator would be entitled to recover in this action. ,

IL Is the relator entitled to maintain this action, regardless of the constitutionality of the Act of 1913 supra? The county court levied the full forty-cent limit in this case. If it had set apart thirty cents on the one hundred dollars ’ assessed valuation out of same for county purposes, exclusive of the roads mentioned in Section 10481 and the above act, and had set apart ten cents on the one hundred dollars’ valuation for the roads mentioned in said laws, then the respondent would have been compelled to pay, according to its own conception of the law, the full forty-cent rate on the one hundred dollars’ valuation.

The duty of the county court in regard to appropriations, is found in Section 11423, Revised Statutes 1909, which reads as follows:

“The county courts of the several counties of this State are hereby authorized and empowered, at the first regular term of such court after the taking effect of this chapter, and at the May term every year thereafter, to appropriate, apportion and subdivide all the revenues collected, and to be collected, and moneys received and to be received, in the various' counties in the State, for county purposes, in the following order:

“I. A sum sufficient for the payment of all the necessary expenses that may be incurred for the care of paupers and insane persons of such county.

“II. A sum sufficient for the payment of all necessary expenses for the building of bridges and repairing of roads, including the pay of road overseers of such county.

“III. A sum sufficient for the payment of the salary of all county officers, where the same is by law-made payable out of the ordinary revenues of the county.

“IV. A sum sufficient for the payment of the fees of grand and petit jurors, judges and clerks of elections, and fees of witnesses for the grand jury of the county.

“V. A sum sufficient for the payment of the other ordinary current expenses of the county, not hereinbefore specially provided for, which shall be known and designated as the contingent fund of such county; which last sum shall in no ease exceed one-fifth of the total revenue of such county for county purposes for any one year.”

"While the county court in this case did not follow the above statutory form of appropriations, yet it has levied all that could be levied under Section 11 of Article 10 of our Constitution. "When the full amount thus levied is collected, it is held by the- officer in charge thereof as a trust fund. If the county court, after the revenue is thus collected, should refuse to apportion the ten cents on the one hundred dollars’ valuation to the roads contemplated by said Section 10481, and the Amendatory Act of 1913, it may be proceeded against by law to transfer the same, and in- that proceeding, the validity of the Act of 1913 supra might be challenged by the county court, if it desired to do so. Under the circumstances of this case, we are of the opinion that the defendant should have paid the taxes in controversy and left the distribution of same to be determined thereafter.

III. It is insisted by respondent that there was no sufficient levy made by the county court of Cole County, and no" such levy as the law required. In support of this contention we are cited to St. Louis & S. F. Ry. Co. v. Apperson, 97 Mo. 300, and State ex rel. v. Hannibal & St. J. Ry. Co., 135 Mo. 618. In the Apperson case, Sherwood, J., at pages 305-6, speaking for this court, said:

“The admitted facts in this case show that the receipt from the Auditor of the certificate of the action of the Board of Equalization, etc., under the provisions of Section 6879, was received by the clerk July 28, 1884, and n.o levy of taxes was made by the county court as required by that section, but the deputy county clerk, of Ms own head, in July or August, 1884, during vacation, made out the railroad tax-book already mentioned, .and extended the taxes thereon, and this was the only book made out or delivered to the collector, the deputy county clerk, obtaining his rates and his data for that purpose from the order of, the county court, made in June, 1884, levying taxes on the general property of the county. This action of the official mentioned, it is scarcely necessary to say, was wholly unwarranted, and at war with the plain provisions of ■Sections 6879 and 6881, of the revenue law.”

In the case at bar, the county court of Cole County did act and enter of record a levy for the full forty-cent limit.

In State ex rel. v. Hannibal & St. J. Ry. Co., 135 Mo. l. c. 627-8, it appears that the secretary of the board of directors of the school district of Kansas City, Missouri, issued a certificate reciting that the school board had made a certain levy and setting the same out, Brace, J., on page 628, said: “Upon the authority of this certificate the clerk without any order of the county court, extended upon the tax book the Kansas City school tax of five mills against defendant’s local'property described as tracts 1, 2, 3, 4, 5, 6, 7, 8, which is the subject of defendant’s first objection.” After considering the subject, Judge Brace, on page 629, said: “It follows that the Kansas City local school tax Sued for, not having been levied by the county court of Jackson County, the circuit court committed no error in refusing to sustain such tax.”

In each of the above cases, the county court took no action whatever, while in the case before us, it did act, as shown by the record, and levied the highest amount authorized by the Constitution.

IY. We are of the opinion, that the trial court, reached an erroneous conclusion as to the merits of controversy. We accordingly reverse and remand the cause, in order that it may be disposed ' of in accordance with the views heretofore expressed.

Brown, C., concurs.

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

All of the judges concur; Bond, G. J., in Paragraph 2, and the result; Blair, P. J., in the result.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    I. V. MOXLEY, Appellant, v. PIKE COUNTY.
    Division One,
    December 30, 1918.
    1. " NEGLIGENCE: Liability of County. Political g«tas¿-corporations, suck as counties, townships and school districts, are immune from common-law liability for the negligence of their officers in the exercise of their territorial governmental duties.
    2. -: Municipal Corporation. On ' the other hand, municipal corporations, such as cities, towns and villages, are liable in damages for personal injuries resulting from negligence in the control, management and maintenance of their streets, alleys and public places.
    3. --: Foundation for Difference. The foundation for the distinction which exists between governmental agencies (such as counties) and municipal corporations (such as cities) with respect to their liability for the negligence of their officers and agents in the construction and maintenance of the ’ class of improvements upon which their development and the peculiar value of their immovable property stand, is laid wide and deep in the personal interests of private citizens which mark the first steps in the creation of municipal corporations.
    4. -: Toll Road: Managed By County. The county court, in taking over a toll road, which after the expiration of the charter of the corporation which constructed it was by the Legislature placed under the “control and management of the court, and in thereafter maintaining toll gates thereon and in collecting tolls ■ from travelers to provide a fund for its maintenance, was acting in the capacity of agent for the State, and the county is not liable in damages for personal injuries to a traveler thereon whose automobile in the night time ran over the bank and into the bed oí a stream from which the bridge had been removed and the place left unguarded.
    Appeal from Pike Circuit Court. — Eon. Edgar B. Woolfolk, Judge.
    Affirmed.

      Pearson & Pearson and D. A. Ball for appellants.
    (1) The demurrer filed by defendant should have been overruled. Harmon v. County of St. Louis, 62 Mo. 313. (2) The defendant was not engaged in the discharge of duties imposed alike by general law on all counties in the State, hut it was engaged in the discharge of a self imposed duty, not enjoined by any law. The defendant could not have been compelled, by law, to take the road and operate and maintain it as a toll road. Therefore, the defendant in operating the road as a toll road must occupy the same attitude as would a private individual, or corporation. Laws 1899, p. 345-6; Harmon v. St. Louis County, 62 Mo. 313; Cambie v. Vanderbilt University, 200 S. W. 510. (3) In operating the road as a toll road the defendant was acting in a corporate or business capacity, and not in a performance of a governmental duty. Williams v. Kansas City, 177 S. W. 783; Henderson v. Kansas City, 177 Mo. 477; .Dammorn v. St. Louis, 152 Mo. 186; Thurston v. St. Joseph, 51 Mo. 510; Bullmaster v. St. Joseph, 70 Mo. App. 60; State ex rel. v. Cates, 190 Mo. 540; Rice v. St. Louis, 165 Mo. 636.

      T.B. McGinnis, Prosecuting Attorney, and Hostetter S Haley, of counsel, for respondent.
    (1) The trial court was within the law in sustaining defendants’ demurrers to the petitions. Reardon v. St. Louis County, 36 Mo. 555; Hannon v. St. Louis County, 62 Mo. 313; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Pundman v. St. Charles County, 110 Mo. 594; State ex rel. v. Gravel Road Co., 138 Mo. 332; State ex rel. v. County Court, 142 Mo. 583; Searcy v. Clay County, 176 Mo. 515; Stealey v. Kansas City, 179 Mo. 406; Foster v. Kansas City, 114 Mo. App. 728; State ex rel. v. Road Co., 207 Mo. 54; State ex rel. v. Road Co., 207 Mo. 85. (2) “The statute gives to the county court, in express terms, the care and superintendence of the highways and "bridges of the county, and confers upon it all the powers requisite to the execution of the trust; and it derives all its- authority, not through the county, hut directly from the statute. The county has no authority to give any direction or instruction to the county court as to the proper performance of its duty.” It acts independently of the county in obedience to state laws. Duties imposed upon the county court by the Legislature it performs as acts of obedience to the Legislature directly, as a state functionary, and not as an agent of the county. Reardon v. St. Louis County, 36 Mo. 561; Lamar v. Bolivar Special Road Dist., 201 S. "W. 892. (3) After the expiration of the franchise of the Louisiana & Middletown Gravel or Macadamized Road Company, the easement, as in an ordinary road, vested in the public, and the status of the road was just the same as any other public highway. Laws 1899, pp. 345-346; R. S. 1899, sec. 9547; State ex rel. v. Gravel Road Co., 138 Mo. 339; State ex rel. v. Road Co., 207 Mo. 54; State ex rel. v. Road Co., 207 Mo. 85. (4) “A turnpike (toll road) is a highway differing neither in the responsibility for its proper maintenance nor in any other particular from an ordinary highway, save in the mode of constructing and maintaining it.” State ex rel. v. G-ravel Road Co., 138 Mo. 341; State ex rel. v. Road Co., 207 Mo. 76.
   BROWN, C.

This is a suit for damages arising from personal injury. The automobile in which plaintiff and his wife were traveling' on the night of August 17, 1915, ran over the bank and into the bed of a stream from which the bridge had been removed and which had been left unguarded, and both were seriously injured. Her suit for damages received in the same disaster, entitled M. P. Moxley v. Pike County, and numbered 19589, is also here upon appeal from the same court, upon a similar record, and is submitted with his. The judgment in each is for the defendant upon demurrer to the petition sustained, and refusal to amend.

The road upon which the injury occurred was constructed and operated as a toll road by a corporation called the Louisiana & Middletown. Gravel or Macadamized Road Company, which seems to have been organized in pursuance of an act of the General Assembly approved March 21, 1872, Laws 1871-2, p. 227, and makes its plea for validity under the provision of Section 27 of Article 4 of the Constitution of 1865 by the recital that it is amendatory of an act approved February 27, 1851. This is unimportant, as the corporate existence of the owner, whichever it was, is admitted to have been extinct in 1899, when Sections 9547 and 9548 of the Revised Statutes of that year were enacted, under which the county court of Pike County, in 1903, took possession of the road in that county, and continued to maintain, control, manage and operate it as a toll road up to the time of the injury. The road was more than five miles in length, and complied otherwise with those sections. The single point is made that in taking over the control and management of it, and charging and collecting tolls as provided in said Section 9548, the county became liable for damages resulting from negligent failure to keep it in safe condition.

I. When, for convenience in the administration of its laws, the State, through the Legislature, calls to its aid those territorial organizations sometimes called, with more or less accuracy, gtwsi-corporations, such as counties, townships and school districts, the question has frequently arisen whether these agencies share, with the State itself, immunity from common-law liability for the negligence of their officers in the exercise of their territorial duties. The answer, from the courts of this State, has generally been a negative one. From Rear-don v. St. Louis County, 36 Mo. 555. down to Lamar v. Bolivar Special Road District, 201 S. W. 890, are many cases which will be found collected in the case last cited which have settled the general principle so firmly that it is not questioned by this appellant. On the other hand, it has been equally well settled that municipal corporations which include cities, towns and villages are, in the control, management and maintenance of their streets, alleys and public places, subject to such liability. The cases recognizing this doctrine are so numerous and so constantly before our appellate courts and their doctrine so well recognized as to render citations not only unnecessary but unjustifiable. This general doctrine is also recognized and admitted by the parties to this appeal.

The appellant insists that between the sharp lines drawn in the adjudications to which we have referred, there is a neutral zone — a no man’s land, so to speak —in which special facts rather than broad principles determine the side upon which the particular action must be arrayed. In this case the question is made to turn upon the fact that the road upon which the injury was received was built by a corporation organized by the Legislature for that purpose, with an authorized' capital consisting of subscriptions both private and public, and clothed with the State’s right of eminent domain. [Laws 1851, p. 403, and Laws 1872, p. 227.] This is said to give the property a private character which attached to the State or county in relation to its ownership, control and management as a toll road. To make this question plain we should look to the foundation of the distinction in the character of the two classes of public agencies which controls their liability. The nearer we come to the true reason of the distinction between political “g-wasi-corporations” and “municipal corporations” the more easy will be its application to both.

II. In the organization of counties the legislative purpose is to divide the State into convenient districts for the purpose of administering the laws under the eye of legal agencies created for that purpose and convenient of access to the people. Optional powers are frequently given as required by local conditions, and, perhaps, legal prejudices; but these are of the very essence of uniformity — that real uniformity which is exhibited in results rather than in methods of achieving them.

On the other hand, as we have already had some occasion to explain in Kansas City v. Holmes, 202 S. W. 392, the foundation of the distinction against municipal corporations is laid wide and deep in private interests which mark the first step in their creation. It consists, in this State, of filing a plat. Some proprietor, ambitious for the gains that come from a system of streets, alleys and other urban improvements which attend the creation of a city, lays it out according to his own idea, and trusts the future for that development which he hopes will immeasurably increase the value of every lot and plat of ground which it includes. Purchasers come who partake of his hope, and join him in a system of development of streets, public squares and limited building districts, which are the principal elements of the expected profit. The State provides a plan by which the pride and ambition of the inhabitants of the surrounding country may be utilized for the benefit of the urban corporations (Chap. 102, Art. 6, R. S. 1909) and the fullest authority is given the corporation to control all improvements for the best interest of the inhabitants and other owners of urban property. These and other similar conditions affect the development of municipal corporations, and afford ample ground for the distinction which exists in this State between them and other governmental agencies with respect to their liability for the negligence of their officers and agents in the construction and maintenance of the class of improvement upon which their development and the peculiar value of their immovable property stands.

III. There are various ways provided by law in this State for the construction and maintenance in good condition of its roads and bridges besides the assessment and collection of the tax levied upon the value of property, some of which are tribute founded upon their use, as in case of the motor-vehicle license fees, which are placed by law in the “Good Roads Fund” of the State, and the tolls that counties are permitted to take upon graveled or macadamized roads taken over by the several county courts under the provisions of Sections 9547 and 9548, Revised Statutes 1899, is appropriated to the payment of the expense of operating the road.

The act under which this road was constructed gave the corporation the right to acquire for the State the right of way for the public use to which it was devoted, and such land as was acquired by voluntary grant, and used for that purpose, was perpetually dedicated by that act to the public use; so that when the life of the corporation ceased by the expiration of its charter the ownership of the easement upon the property, as it then existed, was subject to legislative control. The Legislature by the Act of 1899 placed it under the “control and management” of the county court (not of the county) as its agent for that purpose, and the right of the court to collect a fee or toll for its use as a contribution for its maintenance, imposed no other liability upon the county than would the imposition of any other fee or tax for that purpose. These questions, except the last, which is a mere corolary, were fully considered and determined to our satisfaction in State ex rel. v. Road Company, 207 Mo. 54; State ex rel. v. Road Company, Id. 85; State ex rel. v. Gravel Road Company, 138 Mo. 332, in the first two of which the judges of this court, sitting en banc all concurred.

Hannon v. County of St. Louis, 62 Mo. 313, is relied on by appellant to sustain the theory that the exercise of the control and management vested in the county court by the Act of 1899, being discretionary and not compulsory, its exercise placed the county in the position and saddled it with the personal liability of a private or municipal corporation with respect to the duties growing out of the position that administrative tribunal had chosen to occupy. This discretion to determine whether this road should become a part of the general system of highways in the State does not differ even in degree, from the discretion vested in the court in many other respects concerning the establishment or improvement and maintenance of roads and bridges. As for the Hannon ease, its general doctrine, even if originally applicable to the question now before us, was abandoned in Swineford v. Franklin County, 73 Mo. 279, and the doctrine of the Reardon case, supra, applied.

For the reasons we have stated we hold that the county court of Pike County, in taking over the control and management of the road in question by authority of the Act of 1899, and maintaining toll gates thereon, and collecting tolls from travelers to provide a fund for its maintenance, was acting in the capacity of ag’ent of the State, and that its negligence in the performance of the duties arising from such official relation is not imputible to the county, which is not, therefore, liable in this suit. The judgment of the Pike County Circuit Court is affirmed.

Railey, C., concurs.

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

All of the judges concur.


author: BOND, C. J.

text:
    GRADY HOLLAND SANFORD, Appellant, v. BERTONIA HOLLAND et al.
    Division One,
    December 30, 1918.
    1. WILL CONTEST: Peremptory Instruction. After formal proof of the execution of a will and of the sanity of the testator, at the time, the weight of the evidence is against the contestant, and it becomes necessary, in order to obtain a submission of the issues of testamentary incapacity and undue influence to the jury, to adduce some substantial evidence tending to support those allegations, and if he totally fail to produce such evidence it is not error for the court to direct a verdict in favor of proponents.
    2. -: Testamentary Capacity: Tests. A testator with mind enough to understand the ordinary affairs of life, the kind and extent of his property and who are the natural objects of his bounty, and that he is giving his property to the devisees mentioned in his will in the manner therein stated, is capable of making a will.
    3. -: Questions for Court and Jury. The contest of a will is a legal and statutory action. Whether or not there is substantial evidence to support the grounds of contest is primarily a question of law for the court, and if by the court answered in the negative, nothing remains to be tried by the jury, and an instruction directing a verdict for the proponents is proper; if answered in the negative, the case must go to the jury, whose province it is to determine the credibility of the witnesses, the effect of the testimony and the force of legally allowable inferences.

      i. -: Undue Influence: Wifely Activity. Acts of affection and interest or business' activity by a wife during testator’s last sickness, all distinctly within the scope of wifely duty, do not tend to establish undue influence on her part.
    Appeal from Greene Circuit Court. — Son. Gúy D. Kirby, Judge.
    Affirmed.

      T. J. Delaney and Neville S Gorman for appellant.
    (1) Courts while solicitous to maintain the paper writing as the will of an alleged testator against the complainants of disappointed expectations, should be equally solicitous to prevent imposition either through testamentary incapacity or by means of undue influence. In many eases, we respectfully submit courts have placed too much emphasis on the abstract right of one to dispose of his own, and made cases turn on such right. Before such rule is practically invoked and applied, the court should determine, 1st, the question of testamentary capacity, and, 2nd, the absence of undue influence. Unless and until these questions are solicitiously considered and satisfactorily disposed of, or unless an alleged inequality in distribution is urged as the chief and only grounds for contest, the right to do as one pleases with his own is and should be secondary. (2) Regardless of the evidence or of the weight thereof, the court erred in giving peremptory instructions establishing the will on the issue of testamentary incapacity. The burden was upon the proponents not only to show a due and formal execution complying with the forms prescribed, but to show testamentary capacity at time of such execution. The question of the sufficiency of the evidence was for the jury who might credit or discredit the testimony offered. The court cannot usurp the function of a jury on a matter requiring a finding that a given fact is established. The court may properly declare that given evidence adduced is not sufficient to establish a certain fact, whether alleged by plaintiff as his cause of action, or by defendant in his defense. But the court has no authority to declare that a fact affirmed is sustained by the evidence, even if there be no counter witnesses or strictly counter testimony. The court may declare a given cause of action not proven, but can never declare it is proven. The court may declare a given defense not sustained by evidence, but can never say that it is established. This distinction is clear on principle and sustained by authority. .Gammon v. Laclede Co., 145 Mo. 502; cited in Mowry v: Norman, 204 Mo. 191; James v. Assn., 148 Mo. 1, 111 Mo. App. 540; Williams v. Railroad, 257 Mo. 112. (3) The paper in writing was not attested by two competent witnesses as required by law. One witness, Arch A. McGregor, was not a competent witness under the evidence which shows that he was at the time interested in the subject-matter of the will. He, or his company of which he was president and chief owner, was at the time of such attestation and for a long period of time theretofore had been, a tenant of deceased of part of the real- estate disposed of by said alleged will. It was shown (plaintiff offered to show and evidence was ex-eluded, which is assigned for error) that the rental charged was less than reasonable, much less than current rentals on business property near the Public Square. He or his company was at said time and for many years prior to signing of said paper in writing have been the owner of a tract of ground about 100 by 117 feet immediately adjoining and used in connection with the tenant-occupied property. He and his company were unsecured creditors at the time of Charles Holland, the son of the deceased, a chief beneficiary under said paper in writing. For these reasons he was vitally interested in the question, “Who is to be the landlord?” (4) Even if such interests and relationship did not disqualify him as a witness these matters and others and all the circumstances in evidence certainly affect his credibility and were matters for the jury in determining the weight of his evidence. It was for the jury to say whether or not his testimony and the testimony of Dr. Ralston were sufficient. The jury had a right to weigh such testimony and had a right to declare under all the circumstances a lack of testamentary capacity or that undue influence was exerted. And this even on the theory that the court had the right to act peremptorily on the question. Besides in this case, the personal and family physician was the other attesting witness. A due regard for the position in which a physician thereby places himself should make nim pause. Where such physician is used as an attesting witness it is an ear mark against proponents. Turner v. Andrews, 260 Mo. 1. In this connection, the court should not lose sight of the other ear mark, the badge of fraud, the certificate of capacity given by the physician. Major v. Kidd, 261 Mo. 607; Mowry v. Norman, 204 Mo. 173, 223 Mo. 463. (5) Whether it be considered on the question of .testamentary capacity and whether arising on the evidence adduced by the proponent, alone or on the evidence of the whole case, or whether it be considered on the issue of undue influence, the failure of the members of the family to testify, justify sucn inferences as not only warrant but demand submission of such issues to the jury. Mayberry v. McClurg, 74 Mo. 375; Leaper v. Bates, 85 Mo. 224; Levett v. LaForce, 71 Mo. 354; Massey v. Young, 73 Mo. 273; Cass County v. Greene County, 66 Mo. 512; Baldwin v. Whitcomb, 71 Mo. 658; Eck v. Hacker, 58 Mo. 235; Bent v. Lewis, 85 Mo. 452. (6) On all the evidence the contestant was entitled to the opinion of the jury on the question of testamentary capacity. So also on all the evidence the contestant is entitled to the finding of the jury on the question of undue influence. M.ajor v. Kidd, 261 Mo. 607; Schriebel v. Schriebel, 261 Mo. 706; Turner v. Anderson, 260 Mo. 1; Andrew v. Linebaugh, 260 Mo. 625; Grundmann v. WYlde, 255 Mo. 109; Byrne v. Fulkerson, 254 Mo. 97 ; Wendling v. Bowden, 252 Mo. 647; Bensberg v. University, 251 Mo. 641; Byrne v. Byrne, 250 Mo. 632; Naylor v. McRue, 248 Mo. 423; Goodfellow-v. Shannon, 197 Mo. 271; Crum v. Crum, 231 Mo. 626; Carl v. Gabel, 120 Mo. 297; Gay v. Gillilan, 92 Mo. 250; Dausman v. Rankin, 189 Mo. 677; Buford v. Gruber, 223 Mo. 231; Halton v. Cochran, 208 Mo. 314; Mowry v. Norman, 209 Mo. 173, 223 Mo. 463; Roberts v. Bartlett, 190 Mo. 680; Teckenbrock case, 209 Mo. 533; Cash v. Lust, 142 Mo. 630. (7) Mr. Holland spent weeks in the preparation of the February will; conferred about it on several occasions; read it; had it read in presence of wife and even after this dictated a slight change. And yet we find him in June declaring to McGregor that he did not understand the former will, did not realize what was in it; but that he knew the contents of the one about to be executed when there is no evidence when it was prepared or that Mr. Holland ever read it' or even had it read to him. Those who eonld throw light on this, the wife, family, the scrivener of the will, maintain absolute silence. Old age, sickness, infirmities are to be considered in passing upon both questions .of capacity and undue influence. Schriebel v. Schriebel, 261 Mo. 706. Discrimination and inequality in dispositions along with other facts are entitled to weight. Schriebel v. Schriebel, 261 Mo. 706. There was substantial evidence of both mental incapacity and undue influence. Therefore a peremptory instruction was error. Turner v. Anderson, 260 Mo. 1; Goodfellow v. Shannon, 197 Mo. 271; Crum v. Crum, 231 Mo. ,626; Naylor v. McRue, 248 Mo. 423; Major v. Kidd, 261 Mo. 607. There is no question from this record that towards the last and especially after the return of Mr. Holland from Claremore that Mrs. Holland, Charles Holland and Arch McGregor had an undue influence over the mind of Mr. Holland. This being shown, and from the record this conclusion is irresistible, it follows that the burden is upon the proponents to show that they did not exercise or exert such influence. This was not done. Mrs. Holland and Charles did not submit to a searching of conscience. Maddox v. Maddox, 114 Mo. 49; Gay v. Gillilan, 92 Mo. 261; Gravius, Admr. v. Williams, 44 Mo. 465; Harvey v. Sullens, 46 Mo. 147; Bradford v. Blossom, 190 Mo. 143. In reality every case in this court in which a will has been sustained either by jury or on peremptory instructions, emphasis has always been placed by the court on the proven fact that the paper writing in dispute was prepared by the testator' or the terms were directed by him, or that same was read to him; and this by testimony other than the mere declaration by testator of such fact. In this case, the scene opens with the manual signing. Everything that preceded is hidden, concealed or suppressed. The only glimpses we have in this case of one of the most momen|ous acts in a man’s life, the execution of a will disposing of a large estate and in which act the future of all his loved ones is involved, is a little jollity about the spelling of testator’s name and the character of handwriting. In Roberts v. Bartlett, 190 Mo. 680, comment is made in the decision on the absence of testimony showing when and where will was prepared. (8) The burden of proof, it is true, is upon the plaintiff, contestant, to show the exercise of undue influence; but as stated and shown, if an undue influence is shown to exist, it is for proponents to show that such influence was not exercised. Again if it be shown that a fiduciary relation existed, then the burden shifts and the proponents must show affirmatively that undue influence was not exercised and such issue must be submitted to the jury. A fiduciary relation is shown in this case. Byrne v. Byrne, 250 Mo. 632; Gay v. Gillilan, 92 Mo. 264. Where such relation is shown to exist, the law even indulges in presumption of undue influence. Campbell case, 162 Mo. 644; Hegney case, 126 Mo. 627-28; Roberts case, 190 Mo. 702; Bradford case, 190 Mo. 143; Dausman case, 189 Mo. 708; Maddox case, 114 Mo. 40. All cited in Mowry v. Norman, 204 Mo. 173.

      W. D. Tatlow, and Mann, Todd & Mann for responents.
    (1) A will cannot be impeached either on the ground of the mental incapacity of the deceased or undue influence over his mind by declarations of the deceased made either before or after the execution of the will as to his lack of mental capacity or as to his being unduly influenced. The same is true as to the declarations of the devisees or legatees that the testator did not have mental capacity at the time of making the will, whether made before or after the execution of the will, or declarations to the effect that they had unduly influenced him or intended to do so. Such declarations are hearsay evidence. The declarations of the testator when made at the time of the execution of the will so as to be a part of the res gestae are, of course, competent evidence, as in all other cases. Schierbaum v* Schemme, 157 Mo. 1; Meier v. Butcher, 197 Mo. 68; Teckenbrock v. McLaughlin, 209 Mo. 550; Crowan. v. Crowan, 172 Mo. 703; Hayes v. Hayes, 242 Mo. 155; Rule v. Maupin, 84 Mo. 587; Giboney v. Foster, 230 Mo. 106; Walton v. Kendrick, 122 Mo. 504; Tingley v. Cowgill, 48 Mo. 298; Seibert v. Hatcher, 205 Mo. 97; Paget v. Pence, 178 S. W. 205. (2) All that part of the evidence that refers to matters that took place after the death of the deceased, cannot be considered for the purpose of determining whether the case should haye been submitted to the jury. It either was or was not the will of the deceased at the time of his death. If it was his will then it is his will now, notwithstanding the feelings of the parties or what accusations any of the devisees might have made against the father of the contestant. Heinbach v. Heinbach, 262 Mo. 13. (3) The trial court by sustaining the demurrer expurgated all of tbe alleged declarations of Mrs. Holland, Charley Holland and Clifford Jarrett and all that part of the evidence relating to matters that transpired after the death of the deceased, which left the record absolutely devoid of any substantial evidence upon which the jury could base a verdict that the deceased.lacked mental capacity on tbe 17tb day of June, 1913. Price v. Railroad Co., 72 Mo. 414; Kane v. Railroad Co., 251 Mo. 44. In a will case, at least, after all of the evidence , is in, it is for the court to say as a matter of law whether there is any substantial evidence upon which the jury might base a verdict that the deceased did not possess testamentary capacity, or that the will was procured by undue influence. Jackson v. Hardin, 83 Mo. 176; McFaddin v. Catron, 138 Mo. 227; Von de Veld v. Judy, 143 Mo. 363; Fulbright v. Perry, 145 Mo. 432; Word v. Carpenter, 166 Mo. 488; Crossan v. Crossan, 169 • Mo. 631; Homan v. Homan, 180 Mo. 685; Hughes v. Raider, 183 Mo. 630 ; . Story v. Story, 188 Mo. 110; Sayre v. Trustees, 192 Mo. 95; Cowan v. Shaver,. 197 Mo. "23; Archambault v. Blanchard, 198 Mo. 384; Teckenbrock v. Me- ; Laughlin, 209 Mo. 533; Weston v. Hanson, 212 Mo. 248; Winn v. Grier, 217 Mo. 240; Giboney v. Foster, 230 Mo. 106; Curran v. Curran, 244 Mo. 429. (4) Counsel seem to contend that the attesting witness Arch McGregor was incompetent. They base this contention on the fact that he is the president of a corporation that had a lease on one of the deceased’s buildings and that the corporation was á creditor of one of the legatees, to-wit, Charles Holland. They cite no authority to sustain this contention; in fact they do not boldly contend that he is disqualified, but simply insinuate that he might be. The statute settles this matter. It expressly disqualifies a legatee, but does not render the will void, but only the bequest to such legatee. Secs. 570, 573, R. S. 1909. (5) Influence gained by kindness and affection will not be regarded as undue, even though it induced testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition was voluntarily made. Schierbaum v. Schemme, 157 Mo. ‘1; Turner v. Butler, 253 Mo. 202; Thompson v. Ish, 99 Mo. 160, and cases cited; Huffman v. Huffman, 217 Mo. 182; Campbell v. Car-lisle, 162 Mo. 634; Jones v. Thomas, 218 Mo. 508;. Turner v. Anderson, 260 Mo. 1; Lorts v. Wash, 175 Mo. 487; McCall v. McCall, 135 U. S. 167.
   BOND, C. J.

Suit to contest the will of Telemaehus Blondville Holland, for alleged testamentary incapacity and undue influence, filed by his grandson, Grady Holland Sanford, after the settlement of the estate and shortly prior to the expiration of the running of the two-year Statute of Limitations.

The decedent was seventy-seven years old at the date of his death in Springfield, Missouri, on July 30, 1913. He died possessed of property variously estimated to be of the value of from $800,000 to $1.000.000. The property consisted chiefly of very valuable business buildings located on and near the Public Square, and a large stock farm of several hundred acres lying about two miles southwest of the city.

On February 19, 1913, tbe testator executed a will in wbicb he divided his property among certain specified beneficiaries, including his grandson, Grady Holland Sanford. Later, on June 17, 1913, a second will was executed, in which certain changes were made, among which was the decreasing of the bequest to his said grandson.

At the trial both wills.were introduced in evidence and a careful comparison discloses that the principal changes made were the elision of a trust created in favor of his son Charles, virtually the same property being bequeathed to him for life with absolute remainders in his sons; the changing of the bequest to his daughter Edith, to a stated sum of money, the realty devised to her in the previous will being added to and included, in the bequest to his wife Bertonia, and the lessening of the bequest to his grandson by excluding a certain business property on St. Louis Street and adding this, also, to the bequest to his wife.

The record is very voluminous, as usual in such contests. After a thorough and careful reading of'same, the material facts disclosed by witnesses for plaintiff show that T. B. Holland was a man of unusual business ability and good judgment; that he stood very high in the community in which he lived, and considering his age and the fact that he had been troubled with nervous eczema for many years, his mental faculties remained substantially unimpaired up to the time of his death; that he showed affection for his children and grandchildren and evinced a desire to divide his property equitably.

As to his testamentary capacity, the evidence showed mental clearness and ability to transact all necessary matters of business; that his interest remained keen up to the time of his death in relation to the various matters connected with the rebuilding and restoration of several business buildings that were destroyed by fire the first part of June, 1913.

It also appears that after the execution of the first will, called the February will, a fire occurred, in which many of the buildings owned by Mr. Holland on the Public Square and St. Louis Street were either entirely or partially destroyed and rendered unfit for occupancy. This made a great difference in the income received from these properties, and Mr. Holland, becoming dissatisfied with the apportioning of his property in the February will, which had been divided on the basis of the income from the various properties, decided to have a second will drawn. Thereupon the will in contest was executed on June 17, 1913, with such changes as have already been indicated.

Persons closely connected with Mr. Holland, who had known him for many years, testified as to his mental clarity and grasp of business matters. and the usual affairs of everyday life. Dr. Beeson, who attended Mr. Holland during his stay at a sanitarium in Claremore, Oklahoma, where he went for treatment for nervous eczema, testified that on July 2, 1913, his mental condition was good, but that he was worrying over business matters, and that he advised him worry only served to increase his nervousness, the cause of his malady.

George Tefft, a distant relation and who had known Mr. Holland for manyr years, testified that his mind was clear on June 15, 1913; that Mr. Holland told him at that date that he had been suffering from eczema for years.

Mr. Jarrett, father of one of his sons-in-law, testified that- he saw Mr. Holland the last of June, 1913, when he was called to Mr. Holland’s home to talle over the reconstruction of the Ross Building, of which he wished him to have the contract; that his mind was clear at that time and he had no difficulty in expressing his wishes, and that he was “entirely competent to transact his own affairs without assistance.”

Dr. Ralston, the Holland family physician, who attended Mr. Holland during his last illness and who was in and out the Holland home for years, testified that after his return from Claremore he was in better condition than he had been for some time; that at times when previously ill he had been delirious; that it was not unusual for a man of his age to be delirious when ill; that he “never saw him when [he] thought he was liable to do any violence,” that he “did not state at any time that he was not in mental condition to make the will;” that his mental condition on the day he witnessed the will was better than it had been for some time; to use the witnesses’s own words, “seemed as well to me as I had seen him in a year;” that he was “cheerful enough that day.”

Mr. Arch McGregor, one of the witnesses to the signature of the will, testified that Mr. Holland “was cheerful, in good humor and joked and laughe'd, too.” This was the day the last will was signed. He also testified that Mr. Holland asked Dr. Ralston to make a statement as to the clarity of his mind and that he knew what he was doing, and that Dr. Ralston wrote it out in longhand.

As to any influence that may have been brought to bear in the making of the will in contest, the evidence in the record shows that Mr. Holland worried considerably about his son; that he expressed anxiety to leave the bequest to him in such shape that it should not be dissipated; that he finally shaped it in such a way that a certain amount would be left him to pay any immediate debts and the rest to him for life with remainders in his sons (Mr. Holland’s grandchildren); that after the execution of the February will, a fire occurred which destroyed much of Mr. Holland’s best income property on the Public Square and St. Louis Street; that the property in the February will had been divided on the income basis and becoming dissatisfied with this will, he had the second will drawn, using the first one as a basis, and made therein the changes that have already been indicated above. There is nothing in the record to show that any one exerted any controlling influence over him in the making of this will. It is true there appears to have been some feeling between Mrs. Holland and Mr. Sanford (tbe father of contestant), bnt it does not appear that Mrs. Holland influenced the changing of the bequest to his grandson, Grady Holland Sanford. Mr. Holland expressed at various tiroes a desire to divide his property fairly, and appears to have had unusually strong, affection for the members^ of his immediate family and for his grandchildren.

Grady Sanford testified as to the strong affection that existed between his grandfather and himself; that he spent the greater part of his time in his early boyhood with the Holland children, Louise Holland being about his own age; that a coolness arose between them as he grew older and that he did not feel as welcome at the Holland home as formerly, and that when Louise Holland was married he was away at school, but did not receive an invitation to her wedding. However, none of this testimony showed any active antagonism, nor did his grandfather ever show any lessening of his affection for his grandson.

At the close of plaintiff’s evidence the court gave a peremptory instruction to the jury to find both issues for defendants and to establish the will. A verdict in accordance was returned, and from a judgment entered thereon, plaintiff duly appealed to this court.

I. After the formal proof of the execution of the will and the sanity of the testator at the time, the weight of evidence was against the contestant. Herr-e it became necessary for him, in order to obtain a submission of the issue of testamentary incapacity to adduce some substantial evidence tending to support that affirmation, in total default of which there could have been no error on the part of the circuit judge in directing a verdict on that issue in favor of respondents.

We have been unable to glean from any testimony or evidence adduced by the plaintiff, a legal basis for an inference that the testator did not possess testamentary capacity when he made his will on June 17, 1913. The facts touching his mental capacity on that date have been summarized in the preceding paragraph of this opinion, and in our judgment neither singly nor collectively do they afford any ground upon which a jury would be entitled to find the fact to be that T. B. Holland was mentally incapable, on June 17, 1913, of executing the will which he then made. The standards and tests of mental capacity to make a will have been so repeatedly announced in this State and are so firmly established that it is hardly necessary to refer to citations. A testator with mind enough to understand the ordinary affairs of life and the kind and extent of his property and who are the natural objects of his bounty and that he is giving his property to the devisees mentioned in his will in the manner therein stated, is capable of making a will under the law of this State. [Hahn v. Hammerstein, 272 Mo. l. c. 259; Giboney v. Foster, 230 Mo. l. c. 131; Winn v. Grier, 217 Mo. 420; Bensberg v. Washington U., 251 Mo. l. c. 658.] There is no evidence in this record that the testator lacked any one of these essential qualifications to a valid disposition of his property at the time when the will under review was executed. Indeed, the only conclusion which can be drawn from the evidence, taken singly or conjunctively, is that in the making of his testament, he possessed every qualification prescribed by the laws of this State to enable him to make a valid disposition of his property. In such cases the settled rule is that the trial court should direct a verdict upholding the will. [McFaddin v. Catron, 138 Mo. l. c. 226, 227; Story v. Story, 188 Mo. l. c. 128, 129; Tecken-brock v. McLaughlin, 209 Mo. l. c. 540; Hayes v. Hayes, 242 Mo. l. c. 172.]

II. As to the issue of undue influence, under the law of this State, the contestant is required,' in the first instance, to assume the full burden of proof of that allegation, and it is impossible to find in any °f the facts and circumstances contained in this record, aught that shows in the remotest degree that when the testator made the will in question, his mind was dominated and controlled to such an extent that it reflected the designs and wishes of other ■persons than himself. [Hayes v. Hayes, 242 Mo. l. c. 168, 169.] A contest of a will is a legal and statutory action. In such cases whether there is any substantial evidence tending to prove the alleged grounds of contest is always, primarily, a question of law to be determined by the court. If that is resolved -against the contestant, then nothing remains to be tried by a jury. If, however, it is resolved in favor of the contestant, then the case must go to the triers of the fact, whose peculiar province it is to determine the credibility of witnesses, the effect of testimony and the force of legally allowable inferences. In other words, whether a given set of facts and circumstances have any probative force whatever, is a question at the threshold of the case which the court must determine and when this has been ruled adversely, under the applicatory law, the case should be taken from the jury.

The circumstances relied upon by appellant to support the inference of undue influence, appear to be that Mrs. Holland was present when the February will was made by the-testator, and at the trial it was shown that marginal pencillings in her handwriting had been made on that will; that she went to Claremore where her husband was' taking a cure, and dispensed with a nurse upon his return home, and other attentions to his comfort and assistance in signing checks for the payment of household expenses, all of which, according to the theory of appellant, tended to prove a fiduciary relationship and, therefore, imposed the bulden upon respondents to show that the will in question was not the result of undue influence. We cannot assent to that view. All of such offices of affection and interest or business services were distinctly within the scope of wifely duty and are not the predicates of undue influence. [Lorts v. Wash, 175 Mo. 487, l. c. 505; Seibert v. Hatcher, 205 Mo. 83; Mackall v. Mackall, 135 U. S. l. c. 167; Winn v. Grier, 217 Mo. l. c. 459; Bennett v. Ward, 199 S. W. l. c. 947.]

We think the peremptory instruction was justified on both issues by the state of the record and that the judgment is' manifestly right and should he and is affirmed. It is so ordered.

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


text:
    MARY JANE CRENSHAW, Appellant, v. JOEL V. CRENSHAW et al.
    Division One,
    December 30, 1918.
    1. DOWER: Divorce: Settlement. A wife who has been divorced from her husband for his fault or misconduct is entitled to have dower in lands owned by him during the marriage assigned to her after his death, unless during his life she released her inchoate right of dower.
    2. -: Release: Estoppel. A wife may by her contract and quitclaim deed, based upon a legal consideration, release to her divorced husband, who is the owner of land and in possession thereof, her inchoate right of dower; and while inchoate dower is not the subject of grant or subject to sale under execution, such a release will operate to estop her from claiming dower after his death.
    3. -: -: Agreement Before Divorce: Alimony. The husband and wife have a legal right, in view of the Married Woman's Act, before her suit for divorce is tried, to agree upon the compensation to be paid as alimony and for the release of her inchoate right of dower in the lands which he owns and of which he is in possession.
    4. -: -: Legal Consideration. A settlement of the wife’s suit for divorce, by which her husband’s answer is withdrawn and he agrees to pay her a stated sum of money in lieu of alimony and for. a release of her inchoate right of dower, entered into before the decree is granted, and followed after the decree by a quit-claim deed from her to him and the payment of the agreed money by him to her, is a legal consideration for the agreement and deed.
    5. -: -: Subsequent Interest: Married Woman’s Act: Deed After Divorce, A wife who executes after the decree of divorce is granted a quit-claim deed by which she releases to her husband her inchoate dower in lands of which he is the owner and terre tenant is not acting under the Married Woman’s Act. Her inchoate right of dower is a chose in action, and her release thereof estops her from asserting any subsequent claim thereto. Such a deed cannot be held to pass only a present interest.
    6. -: -: -: Showing Lack of Consideration: Estoppel. A deed by which a wife, after divorce, relinquishes her dower in and remises, releases and forever quitclaims unto her husband certain lands and relinquishes all her interest, whether of dower or otherwise, in said lands, to her husband, who is the owner and ierre tenant, so that neither she nor any other person for her shall hereafter claim any right or title to said premises, operates as an estoppel, and in view of such recitals she cannot show want of consideration for the purpose of defeating their operative effect.
    7. -: -: Sufficient Consideration. Where the wife, in the presence of her father, against the advice of her counsel, agreed, in settlement of her suit for divorce, to accept a named sum ,of money for a release of her inchoate right of dower in her husband’s lands and in lieu of alimony, and, after the decree was granted, executed a quitclaim deed to him and received and retained the full consideration agreed upon, it will not be held that the consideration was not sufficient, whether or not said sum was less than she may have been entitled to in the settlement, no fraud being shown or charged.
    Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolfoik, Judge.
    Affirmed.

      Jos. R. Palmer, Hostetter & Haley and Creech & Penn. for appellant.
    (1) The elements entitling a woman to dower in Missouri are (1) a lawful marriage, (2) seizin of the husband, or of some other person to his use, during the marriage, of an estate of inheritance in the land, and (3) death of the husband prior to the death of the wife. Murray v. Scully, 259 Mo. 57; 3 Words and Phrases, 2188. (2) When a divorce is granted for the fault of the husband the wife’s dower is not barred. Scales v. Scales, 65 Mo. App. 293; Murray v. Scully, 259 Mo. 57; Givens v. Marbut, 259 Mo. 223; Hunt v. Thompson, 61 Mo. 148; R. S. 1909, sec. 359. (3) The wife who has been divorced for the husband’s fault or misconduct is not entitled to dower until the death of the husband ; during the husband’s life the dower is inchoate, and not until his death does it become consummate. Hunt v. Thompson, 61 Mo. 148. (4) The inchoate right of dower is not an interest in nor title to real estate, and is not the subject of relinquishment, release or conveyance by the wife during the life of the husband, except by some one of the methods authorized by the statute. Tiedeman’s Real Property (3 E-d.), sec. 85; 4 Words and Phrases, p. 3493; 14 Cyc. 925; McCrillis v. Thomas, 110 Mo. App. 703; Mining Co. v. Baker, 170 Mo. App. 457; Brannock v. Magoon, 216 Mo. 722; Teckenbrock v. McLaughlin, 246 Mo. 711; First Nat. Bank v. Kirby, 269 Mo. 285; 13 Cyc. 688; Brawford v. Wolf, 103 Mo. 391. (5) The quitclaim deed of Mrs. Crenshaw only passed the interest she then had, and any interest, estate or title that thereafter accrued to her did not inure to the grantee or those claiming under him, and this notwithstanding the Married Woman’s Act. Bland v. Windsor, 187 Mo. 137; State Bank of St. Joe v. Robidoux, 57 Mo. 450; Ford v. Unity Church, 120 Mo. 498; Hendricks v. Musgrave, 183 Mo. 309; Wilson v. Fisher, 172 Mo. 15; Brawford v. Wolfe, 103 Mo. 397; Conrey v. Pratt, 248 Mo. 576; R. S. 1899, sec. 901. (6) The statute giving a widow the risht to assign dower in the real estate of which her husband died seized before it has been admeasured to her, refers to the dower interest existing after the husband’s death and not to her inchoate dower. R. S. 1909, sec. 346; Brannock v. Magoon, 216 Mo. 722. (7) A quitclaim deed passes no interest, title or estate not in existence at the date of its execution. (8) The deed given by Mrs. Crenshaw would not estop her to claim dower. The deed was without consideration. To work an estoppel there must be such conduct on the part of one party as to induce the other party to act, relying on such conduct, and resulting to his injurv. 2 Words and Phrases (2 S.), p. 337; 3 Words and Phrases, p. 2498; 16 Cye. 726; DeBerry v. Wheeler, 128 Mo. 90; Osburn v. Court of Honor, 152 Mo. App. 652; Harrison v. MeReynolds, 183 Mo. 548; 21 Cyo. 1343; Bank v. Ragsdale, 171 Mo. 185. (9) The fifteen hundred dollars allowed Mrs. Crenshaw as alimony for the support of herself and child was not dower, the court had no power to require the relinquishment of her dower, and this allowance of alimony could not be a consideration for the deed she executed. Scales v. Scales, 65 Mo. App. 292; 1 Words and Phrases (2d S.), 181. (10) The quitclaim deed viewed in the light of a contract was invalid, because the consideration was nothing more than the law would have cast upon her at her husband’s death and was inadequate to bind her and preclude her claim for dower, the consideration not having been paid. Spratt v. Lawson, 176 Mo. 181; Egger v. Egger, 225 Mo. 116. (11) The quitclaim deed was not effectual as an estoppel, it not having been ratified subsequent to the husband’s death. 14 Cyc. p. 932; Saunders v. Blythe, 112 Mo. 5. (12) Dower is favored in a high decree by the law as the reward of chastity; in doubt, the response is in favor of dower. Blevins v. Smith, 104 Mo. 588; Chrisman v. Linderman, 202 Mo. 614.

      Sutton & Huston for respondents.
    (1) The conclusion is inevitable from a consideration of the authorities and the mandates of .judicial reason, that a dowress who is a femme sole, may, by her separate deed, release her inchoate dower to her divorced husband, who is at the time the terre-tenant of the principal estate. Smith v. Pendell, 19 Conn. 112; Miller v. Emans, 19 N. T. 390; Williams v. Esten, 179 111. 274; Blain v. Harrison, 11 111. 385; Summers v. Babb, 13 111. 483; Jackson v. Vanderheyden, 17 Johns. 167; Johnson v. Shields, 32 Me. 424; Shepherd v. Howard, 2 N. H. 507; Thatcher v. Howland, 2 Met. 41; Moore v. Harris, 91 Mo. 621; McAnaw v. Tiffin, 143 Mo. 676; Tatro v. Tatro, 18 Neb. 397; Nichols v. Park, 78 N. Y. App. Div. 95; Creen v. Putnam, 1 Barb. 506; .Moloney v. Horan, 53 Barb. 38; Brannock v. Magoon, 216 Mo. 729; McCrillis v. Thomas, 110 Mo. App. 703; Littlefield v. Crocker, 30 Me. 193; Kitzmiller v. Yan Eensselear, 10 Ohio St. 64. (a) It is a well established rule at common law that contingent future rights and interests in real estate, though not alienable, could be released to the terre-tenant of the freehold. Smith v. Pendell, 19 Conn. 112; Miller v. Emans, 19 N. Y. 390; Williams v. Esten, 179 111. 274. (b) So, a dowress, though she could not assign her dower to another so as to invest him with it, she could release it to the terre-tenant of the principal estate, and the same rule prevails in modern decisions. Blain v. Harrison, 11 111. 385; Moore v. Harris, 91 Mo. 621; McAnaw v. Tiffin, 143 Mo. 676; Summers v. Babb, 13 111. 483; Jackson v. Yanderheyden, 17 Johns. 167; Johnson v. Shields, 32 Me. 424; Shepherd v. Howard, 2 N. H. 507; Thatcher v. Howland, 2 Met. 41. (c) A right of dower, until legally assigned, is a right resting in action only. A widow may release it, but she cannot before dower is assigned invest another person with the right to maintain an action on it; nor can she convey or assign it. Creen v. Putman, 1 Barb. 506. (d) But her deed, though it may not operate as a grant, will operate as an estoppel against her in favor of her grantee and those claiming under such grantee. Maloney v. Horan, 53 Barb. 38; Brannock v. Magoon, 216 Mo. 729; McCrillis v. Thomas, 110 Mo. App. 703; Littlefield v. Crocker, 30 Me. 193; Kitzmiller v. Yan Eensselear, 10 Ohio St. 64; Blain v. Harrison, 11 111. 385. (e) A decree a vinculo matrimonii dissolves the marriage and puts an end to the relation of husband and wife, and to all property rights, including the right to dower, except when it is expressly preserved by statute. Tatro v. Tatro, 18 Neb. 399. (f) Dower does not attach to lands acquired by a husband after his wife has obtained a divorce. Nichols v. Park, 78 N. Y. App. Div. 95. (g) Tbe operative words of the usual form of quitclaim deed in common use are sufficient operative words of conveyance, and such a deed is as effectual to transfer title as any other form of conveyance, and conveys every shred of right, title or interest the grantor may have in the premises. McAnaw v. Tiffin, 143 Mo. 676; Weissenfels v. Cable, 208 Mo. 534; Chew v. Keller, 171 Mo. 225; Wilson v. Albert, 89 Mo. ,543; Ennis v. Tucker, 78 Kan. 55; Livingstone v. Murphy, 187 Mass. 315; Kyle v. Cavanaugh, 103 Mass. 356; Pinkerton v. Fenelon, 131 Wis. 440. (h) While the consideration of a deed is open to investigation and explanation for some purposes, yet in the absence of fraud or mistake the want of consideration cannot be shown against a recital of a consideration in the deed for the purpose of defeating the operative words of the deed. Weissenfels v. Cable, 208 Mo. 534; Chambers v. Chambers, 227 Mo. 287; Bobb v. Bobb, 89 Mo. 419; Strong v. Whybark, 204 Mo. 348; Russell v. Robbins, 247 111. 510; Burleigh v. Coffin, 22 N. H. 118. (2) The same contract was amply sufficient to constitute a valid and binding contract, supported by a valuable consideration, actually paid to the plaintiff and received and appropriated by her whereby she is now estopped to claim such dower. Owen v. Yale, 75 Mich. 258; Tatro v. Tatro, 18 Neb. 399; Bourne v. Simpson, 9 Ben. Mon. 457; Marvin v. Collins, 48 111. 156; Adams v. Storey, 135 111. 448; Garbut v. Bowling, 81 Mo. 214; Ellis v. Diddie, 1 Ind. 561; Wood v. Seely, 32 N. Y. 105; Reed v. Morrison, 12 Serg. & R. (Pa.) 18; Allen v. Allen, 112 111. 323; Collins v. Woods, 63 111. 285; Seales v. Scales, 65 Mo. App. 283; Spratt v. Lawson, 176 Mo. 181; Egger v. Egger, 225 Mo. 143.
   RAILEY, C.

On February 19, 1915, plaintiff filed in the circuit court of Lincoln County, Missouri, her petition for the assignment of dower in the lands of her husband, Wm. N. Crenshaw, described in the petition. The petition alleges, and the separate answer of Joel Y. Crenshaw, executor of the estate of Wm. N. Crenshaw, et ah, admits, that plaintiff and said Wm. N. Crenshaw were married in Lincoln County, Missouri, on December 15, 1896; that on March 28, 1898, she was, in the circuit court of said county, divorced from said Wm. N. Crenshaw; that in the trial of said divorce case, the court found plaintiff to be the innocent and injured party, and entitled to the relief prayed for in her petition. The petition alleges, and said answer admits, that said Wm. N. Crenshaw died on January 5, 1915, the fee simple owner of the real estate described in petition. The petition alleges, and said answer admits, that Wm. N. Crenshaw died leaving a will, which was duly probated in said county, and letters testamentary issued to Joel Y. Crenshaw on January 11, 1915, and that by the terms of said will said real estate was devised to defendants Martha E. Chewning, Nancy Lee Tiller, Joel Y. Crenshaw, Wm. Lee Crenshaw, Edna W. Moorehead, Lutitia T. Magruder and Lucy M. Magruder; and that to Eldridge J. B. Crenshaw is there bequeathed the sum of $750, and that as to plaintiff, said Wm. N. Crenshaw died intestate. The petition alleges, and said answer admits, that Martha E. Chewning and Nancy Lee Tiller are daughters, and Joel V. Crenshaw and Eldridge J. B. Crenshaw are sons, of saidWm. N. Crenshaw, deceased; that William Lee Crenshaw is the grandson of said Wm. N. Crenshaw, being the only heir of William Crenshaw, a deceased son, and that Edna W. Moorehead, Lutitia T. Magruder and Lucy M. Magruder are granddaughters of the said Wm. N. Crenshaw, being the only heirs of Mary Magruder, a • deceased daughter. The petition further alleges that plaintiff’s dower in said land has never been- assigned or set apart to her, and that defendants, on January 11, 1915, entered into possession of said real estate and deforced plaintiff of her right therein; that since said time they have -been and now are in possession of said lands, to plaintiff’s damage in the sum of five hundred dollars; that the monthly value of the rents and profits of plaintiff’s dower estate in said lands is $200 per month. The petition alleges that Eldridge J. B. Crenshaw and Lucy M. Magruder are minors, under the age of twenty-one years, and the court is asked to appoint a guardian ad litem to represent them in the trial of the cause. Plaintiff prays judgment for the assignment of her dower in said premises, for five hundred dollars as damages aforesaid, and for'the monthly rents, profits and costs of suit.

The separate answer of Joel V. Crenshaw, executor, et al., after admitting the allegations of the petition, as heretofore stated, denies the truth of every other allegation therein contained. Said answer then alleges, by way of affirmative defense, that at the time of the divorce proceedings aforesaid, and after a decree of divorce had been granted to plaintiff, and on the same day it was granted, the plaintiff herein executed, acknowledged and delivered to said Wm. N. Crenshaw a deed to the lands mentioned in the petition, whereby she released all her dower, interest and estate of every kind to all lands that might be subsequently acquired by said Wm. N. Crenshaw, and that the consideration expressed in said deed was the sum of fifteen hundred dollars. Respondents deny that she has any dower in said lands and aver that plaintiff is estopped by her said deed of conveyance and by her conduct from, now claiming dower in said lands, etc.

Frank Howell, who had been appointed guard:an ad litem for the minors, Lucy M. Magruder and Eldridge J. B. Crenshaw, stated, in an answer for them, that he had no knowledge or information of the matters stated in the petition sufficient to form a belief, and therefore called for strict proof.

The reply of plaintiff is a general denial and it further states that no consideration for the alleged deed moved from the grantee therein to • the plaintiff. It denies that said grantee, or any person for him, or in his behalf, paid, as consideration for said deed, to the plaintiff, the sum of fifteen hundred dollars, as expressed in said deed, or any other sum.

The defendants assumed the burden of proof, and read in evidence the deed mentioned in the separate answer aforesaid. It is a quitclaim deed, dated March 28, 1898, from plaintiff to Wm. N. Crenshaw, for the expressed consideration of fifteen hundred dollars, to her paid by said Wm. N. Crenshaw, the receipt of which is thereby acknowledged. It further recites, that she “does by these presents, relinquish her dower in, remise, release and forever quitclaim unto” the said Wm. N. Crenshaw, the lands described in the foregoing petition. After describing the above land, the deed recites that “said Mary J. Crenshaw hereby relinquishes all of her interest whether of dower or otherwise in all property real or personal owned by said Wm. N. Crenshaw, whether described correctly herein or not.” The deed was signed by plaintiff, was duly acknowledged on March, 1898, and filed for record in said county on the same day.

Defendants then rested in chief.

Plaintiff introduced in evidence the divorce decree, heretofore mentioned. The decree recites that defendant failed to appear to the action, and that the court found she was the innocent and injured party in entering said decree. It gave the care and custody of their infant child, named Eldridge J. B. Crenshaw, to plaintiff and relieved the husband from any further support and maintenance of said child. It decreed that defendant, by way of alimony and for the support and maintenance of said child, should pay said plaintiff the sum of fifteen hundred dollars, in equal installments of five hundred dollars each. The first five hundred was to be paid within one year from the date of said decree; the second five hundred dollars, in two years, and the third five hundred dollars, in three years. Each of said sums was to bear interest at the rate of six per cent per annum from the date of said decree. The defendant was given the privilege of paying said sums, or any part thereof, at an earlier date if he desired to do so.

Plaintiff introduced the record entry in the divorce case, showing that on October 23, 1897, there was allowed said plaintiff as alimony pendente lite for twenty-eight weeks board, $84; for attorney’s fee, $250; for clothing for plaintiff and said infant, $40; for taking depositions and other preparations for trial, $50; for nurse for child, $50, and for pin money, $25, making a total of $499, which was to be paid in installments.

Mr. O. H. Avery, who had been attorney for plaintiff in the divorce case, testified that the $1500 mentioned in the decree was not paid in cash, but was settled by defendant therein, giving three notes of $500 each; that aside from the $499, the above sum of $1500 was all that defendant paid in connection with the divorce suit. On cross-examination, he said there was a settlement between the parties to the divorce case; that plaintiff and defendant were present, as well as counsel representing them respectively. He gave it as his remembrance that defendant had formerly filed an answer in the divorce case, which was withdrawn; thereupon plaintiff was to sign a deed conveying all of her right to defendant’s property, both real and personal; that said agreement was carried out; that defendant Crenshaw had been arrested for assault, and that was included in the settlement. He said that he talked with plaintiff and tried to persuade her not to make the settlement, as he could do better for her. He said her father was there and advised a settlement. Avery further testified, as follows:

“Q. Was this deed the result of that settlement? A. That deed was the result of that settlement.

“Q. And your understanding was from your talk with her and with her father who was there talking to her that you were making a settlement of all her property rights, real and personal? A. Yes, sir.

“Q. What was she to receive? A. She was to receive fifteen hundred dollars in addition to what she had received, five hundred dollars..

“The Court: For suit money and alimony pending the suit, and support money for the children? A Four hundred and ninety dollars; I called it five hundred dollars; I though it was five hundred, but 1 notice it is $499, and she was to relinquish all interest that she had in his property, both real and personal; that was the contract, and I think that is in the deed; I think it was pnt in there that day.’,’

He further testified as follows:

“Q. That settlement was closed up and the decree rendered and the deed made? A. The decree was rendered here in court and the deed itself was signed in the circuit clerk’s office, a few minutes after that; I was present; I was with her.

“Q. Where was this settlement made you have reference to? A. That settlement was made in the, office that you now occupy.

“Q. Who was there and represented Mrs. Crenshaw? A. You and her father; my recollection is that her father was there; I was in the front room.

“Q. This deed was made there in consequence of that settlement and that payment of fifteen hundred dollars? A. Yes, sir; and immediately after the consummation of that ag'reement she came up here and I remember the decree was rendered and approved, and we went down into the circuit clerk’s office and the deed was signed in the circuit clerk’s office and acknowledged by Mr. Sitton, who was then circuit clerk.

“Q. That was after the decree had been rendered? A. Yes, sir.

‘1Q. The decree was rendered and approved ? A. Mrs. Crenshaw testified, and I don’t know,. I think perhaps her father testified; Mrs. Crenshaw testified, of course.”

Mr. R. H. Norton was sworn as a witness and testified, in regard to above settlement, as follows:

“A. The suit was brought by Mrs. Crenshaw for divorce aeninst W. N. Crenshaw and resulted in considerable litigation and exceeding bitterness; there was a fight and a hard fight for the allowance of ailmony, and it being apparent that these parties couldn’t live together, there was some attempt to settle the entire matter, between the parties of the differences; a conference took place in my office between Mr. and Mrs, Crenshaw, Mr. True, Mr. Dunn, who represented Mr.

Crenshaw, and myself. I have no recollection of Murphy being there and I don’t think he was in the case, 1 don’t think the papers will show he was in the case. It was determined that they had better settle their property rights and settle that case; it was agreed, as I recollect, that the answer would be withdrawn and that the case would be heard and the decree rendered, after proof supporting it. It was not agreed they should have a divorce, but it was a recognized fact a divorce would be granted and must be granted, and in the settlenlent of their property rights, Mrs. Crenshaw agreed to accept fifteen hundred dollars and release all her interest of every kind whatsoever and settle the whole matter between them; that was the agreement between the parties, and as a result of that agreement the case was heard and the decree rendered, and in carrying out the agreement the deed was made and either the money paid or notes executed, I don’t remember whether notes were given or money paid; at any rate, in a very short time the money was all paid, if not that day; I don’t remember whether notes were given or not, but my impression is that it was paid in cash; possibly there were notes given, but I am not sure about that matter. I think that’s all I have to testify to.

“The Court: Was this additional amount paid too, $499? A. That was paid before that.”

J. V. Crenshaw was sworn as a witness. He testified that his father, Wm. N. Crenshaw, died April 5, 1915; that he owned at that time something like 526 acres of land in Lincoln County; that he owned all these lands at the time his second wife obtained her divorce; • that in his opinion the above land was worth about $60 per acre; that the reasonable annual rental value of same was $4 or $5 per acre.

The evidence clearly shows that defendant in the divoi’ce case paid the costs, the $499, the $1500 heretofore mentioned, and that he paid xxothing more.

The foregoing covers substantially all the evidence Introduced at the trial.

On June 19, 1915, the court found the issues in favor of defendants, and in due form entered judgment accordingly. Plaintiff, in due time, filed her motions for new trial and in arrest of judgment. Both of said motions were overruled and the cause duly appealed by her to this court.

I. There is substantially no controversy as to the facts in this case, as shown by the preceding statement. ■ Section 359, Revised Statutes 1909, provides, that:

“If any woman be divorced from her husband, for the fault or misconduct of said husband, she shall not thereby lose her dower; but if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed.”

Unless, therefore, the plaintiff released to her former husband her inchoate right of dower in the lands described in petition, she is'entitled to have her dower interest in said lands assigned in this proceeding.

II. It may be conceded that, under our law, the inchoate right of dower in the husband’s lands is not the subject of grant, nor liable for sale under execution, but it is equally as well" settled, in this jurisdiction, that the wife may by her contract and quitclaim deed, based upon a legal consideration, release to the husband,,who is the owner of the land and in possession thereof, her inchoate right of dower therein. Plaintiff having, executed a quitclaim deed to the former husband conveying her inchoate right of dower to his lands, under the circumstances aforesaid, if there was a valid consideration therefor, is estopped from claiming dower in said lands after his death. [Lemon v. Lemon, 201 S. W. l. c. 106; Brannock v. Magoon, 216 Mo. l. c. 729; Bush v. Peirsol, 183 Mo. l. c. 505; Carey v. West, 139 Mo. l. c 177; Moore v. Harris, 91 Mo. l. c. 621-2; Magwire v. Riggin, 44 Mo. l. c. 515 and cases cited; McCrillis v. Thomas, 110 Mo. App. l. c. 703-4.] To the same effect are many decisions outside of this State, a number of which are cited in respondents’ brief.

III. Did the plaintiff and her husband have the right, before -the divorce case was tried, to agree upon the compensation which should be paid as alimony and for the release of plaintiff’s inchoate right of. dower in the lands mentioned in petition? Under the authorities cited in the preceding proposition, plaintiff’s inchoate right of dower at that time was simply a chose in action. Since the adoption of the Married Woman’s Act of 1889, and by virtue of Section 8304, Revised Statutes 1909 (R. S. 1899, see. 4335), a married woman has the legal right to make such an agreement as that which plaintiff made in reference to the divorce proceedings heretofore set out. [Smelser v. Meier, 271 Mo. l. c. 185-6, 196 S. W. 22; Bank v. Kirby, 269 Mo. l. c. 292-3, 190 S. W. 597.]

There is no fraud charged or shown in respect to the above agreement. On the contrary, it was entered into by plaintiff voluntarily and contrary to the advice of her counsel at the time. The defendant’s answer was then on file, which put in issue the allegations of her petition in regard to the grounds of divorce as well as the question of alimony and other issues which mig’ht have arisen in the case. While of course they had no right by collusion to have a decree of divorce entered in her behalf, they did have the legal right to agree upon alimony and the release of plaintiff’s inchoate right of dower to her husband, who was then the terre tenant, as well as the owner of the lands described in petition, if said agreement was based upon a valid consideration.

IV. Were the foregoing agreements and the quitclaim, deed executed by plaintiff to her former husband pursuant thereto, supported by a valid consideration? Both were free to, contract with each other. She and defendant had been married less than eighteen months when the decree of divorce was obtained, She was his second wife, and evidently had but little, if anything, to do with the accumulation of the real estate held by her husband, during their brief married life. The question of alimony was an open one, which required proof in reference thereto, and which was dependant upon the exercise of a sound judicial discretion by the trial court in allowing same. With the answer on file she would have been put to her proof, not only as to the merits of the controversy, hut likewise in respect to the alimony claimed. In other words, she was confronted with a lawsuit, and through the foregoing settlement wes relieved from a contest as to the merits as well as concerning the question of alimony. The defendant in the divorce ease, pursuant to said settlement, withdrew his answer, and paid the $1500 agreed upon. Pursuant to the same settlement, the plaintiff executed the quitclaim deed releasing to said defendant her inchoate right of dower in the lands mentioned in petition, and received a moneyed consideration for same.' She was not only settling a lawsuit, but by virtue of the settlement, was obtaining a speedy trial, without any right of appeal being open to defendant. We are of the opinion, that the foregoing agreement was supported by a valid consideration.

Y. It is contended by appellant, that: “The quitclaim deed of Mrs. Crenshaw only passed the interest wThich she then had, and any interest, estate or title that thereafter accrued to her did not inure ^ie grantee or those claiming under him, and this notwithstanding the Married Woman’s Act.”

Mrs. Crenshaw was not acting under the Married Woman’s Act when she executed and delivered to her former husband the quitclaim deed aforesaid. She was divorced prior to the execution of said instrument, and had the right to convey her inhcoate right of dower to the former husband as the terre tenant and owner of the lands mentioned in petition. As heretofore stated, the interest which she had at the time of the execution of said quitclaim deed, was simply a chose in action. The quitclaim deed was amply sufficient to convey this interest to the terre tenant and thereby release to the latter her inchoate right of dower in said lands. Under the authorities heretofore cited, she is estopped by reason of the foregoing from asserting any claim of title to said lands since the execution and delivery of said deed. The quitclaim deed having passed the title to her chose in action to the former husband, at the time of its execution, estopped her from claiming dower after her former husband’s death. [See authorities supra.]

VI. It is likewise insisted by appellant that: “The deed given by Mrs. Crenshaw would not estop her to claim dower. The deed was without consideration. To wor& an estoppel there must be such conduct on the part of one party as to induce the other party to act, relying on such conduct, and resulting to his injury.”

The quitclaim deed, after describing the grantor and grantee, recites:

‘ ‘ That the said party of the First Part in consideration of the sum of Fifteen Hundred Dollars, to her paid by the said party of the Second Part, the receipt of which is hereby acknowledged, does by these presents, relinquish her dower in, remise, release and forever quitclaim unto the said party of the second part the following described lots, tracts or parcels of land.” [Here follows a description of the lands as described in petition.] . . . “And said Mary J. Crenshaw hereby relinquishes all of her interest whether of dower or otherwise in all property, real or personal owned by said Wm. N. Crenshaw, ■ whether described correctly herein or not. . . .

“So that neither the said party of the first part nor her heirs nor any other person or persons for her or in her name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises or any part thereof, hut they and every one of them 'shall hy these presents he excluded and forever barred.”

This deed was filed for record on the day of its execution.

There is neither fraud nor mistake charged or shown in the case. While the consideration of a deed is open to investigation and explanation for some purposes, yet, the want of consideration cannot be shown in view of the foregoing recitals, for the purpose of defeating the operative words of said quitclaim, deed. [Bobb v. Bobb, 89 Mo. l. c. 419; Strong v. Whybark, 204 Mo. l. c. 348; Weissenfels v. Cable, 208 Mo. l. c. 534; Chambers v. Chambers, 227 Mo. l. c. 287-8; Anderson v. Cole, 234 Mo. l. c. 4; Harrison v. Moore, 199 S. W. (Mo.) 190-1; Russell v. Robbins, 247 Ill. 510; Burleigh v. Coffin, 22 N. H. 118.]

VII. It is strenuously insisted by appellant that, notwithstanding the original agreement between the plaintiff and her husband, entered into after mature deliberation, followed by the withdrawal of .defendant’s answer therein, the entry of the decree pursuant thereto, the payment of the consideration agreed upon, and the execution of the quitclaim deed to the terre. tenantv releasing her inchoate right of dower, said agreement is invalid, because not based upon a legal consideration. In support of this contention, Spratt v. Lawson, 176 Mo. l. c. 181, and Egger v. Egger, 225 Mo. 116, are strongly relied on as sustaining the above view.

We are of the opinion that the facts in each of said cases distinguish them from the one at bar. In the Egger case, the wife was old, unfamiliar with business and dealing with her husband, with whom she was living at the. time, in the execution of the agreement relating to their property rights. Valliant, J., upon page 139, in discussing this subject, said; “Under the circumstances of this case why should not the law of fiduciary relations be taken into account when we come to pass judgment on this contract?”

In the case at bar, the parties were dealing at arms-length, with a divorce proceeding pending them at the time. The plaintiff was represented by able counsel and her own father, when the settlement was made. It was the desire of both plaintiff and defendant to get rid of a law suit and settle their property rights outside of court. The plaintiff received the full consideration of $1500 agreed upon, and both parties formally carried out their agreement. In the Egger ease, the husband was to make a will giving her $75 per month out of his estate during her life, and was to set apart in his will $20,000 for that purpose.

Judge Vaixiant, upon pages 143-4, in considering the question as to whether there was a valid consideration to support the agreement, said:

“If she knew at the death of her husband she would be entitled to dower in real estate of the value of $100,000 and one-sixth of personal property to the value of nearly $200, 000, and that her husband could not by his will deprive her of it, and yet agreed that if he would make a will giving her $75 a month during her life she would take that in lieu of the large share of the estate which the law gave her, it was a mere nudum pactum. There was nothing given her at the time; there was only a promise to give her out of his estate by will at his death something very much less than what would have been her own by right under the law.

“If instead of a mere promise to make a will the contract had provided for the then transference to a trustee of mortgage notes to the amount of $20,000, to secure her the monthly sum of $75 for life to guard against possible vicissitudes of fortune, a different ease would be presented, as to which we say nothing. Here we have a mere promise to make a will giving her less than she would be entitled to if there was no will. ’ ’

In other words, if Mr. Egger had outlived his wife, she would have received nothing under the contract, and if she outlived him, was to receive less than the law absolutely allowed her.

The Spratt-Lawson case supra, in principle, is like the Egger case.

We are of the opinion, that the facts in both the above cases are so totally different from those in the case before us, that they cannot be considered as authority in support of the contention that the settlement was not based upon a valid consideration.

VIII. We are not advised as to the merits of the controversy between plaintiff and her former husband, nor is it necessary for us to consider the same in de-' ciding this case. It is possible that she may have been entitled, in the settlement,- to more than she received, but that was a question for her to consider, while conferring with her counsel and father in respect to this matter. Against the protest of her counsel and with the assurance from him that she could get more by litigation, she voluntarily settled with Wm. N. Crenshaw, upon the terms heretofore mentioned, and rereived the full consideration contracted for in said settlement, with the understanding that she had released to her former husband as the owner and terre tenant of said lands, her inchoate right of dower therein.

Upon a full consideration of all'the questions presented herein, we are of the opinion, that the judgment below was for the right parties. It is accordingly affirmed.

Broion, G. concurs in result.

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

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