author: CRAVES, J. GRAVES, J.

text:
    LYDA M. HOLMES, Appellant, v. KANSAS CITY and MICHAEL ROSS.
    Division One,
    February 26, 1908.
    1. CONDEMNATION: Estate By Entirety: Right of Wife. Where land belongs to the husband and wife as tenants by the entirety she has an interest in the property that must be paid for prior to its seizure and use for a public purpose. Service upon the husband alone in the condemnation proceeding and his appearance thereto and the payment of the damages assessed to him, do not make her a party, nor bind her interest, nor bar her to maintain injunction to protect the property from seizure.
    2. -: Damages: Deposit in Court: Mortgagee: Inter-pleader. The constitutional requirement that the compensation for property taken for a public use “must be paid to the owner or into court for his use” before the city can take possession, is not met by a conditional deposit of the money, nor by a deposit for the use of parties other than the owner, nor by paying it into court for the special purpose of having the court determine which of two persons is entitled thereto.
    3. -: -: — -: Interplea: Wife Not a Party. Where the city, in a proceeding to condemn for a boulevard, property which belonged to the husband and his wife as tenants by the entirety, in the condemnation suit proceeded to assess the amount of damage, arid then in a separate suit by interpleader, to which the 'wife was not summoned or made a party, brought the money into court and asked that the court determine whether he or a mortgage company or both were entitled to the fund, and it adjudges that the husband is entitled to the whole of it, no money was paid into court for her, or for her benefit, and the city has no right to seize the property, or to disturb her possession, avA injunction is her proper remedy.
    Appeal from Jackson Circuit Court.- — Hon. Jas. H. Slover, Judge.
    Reversed and remanded {ivith directions).

      Johnson é Lucas for appellant.
    (1) No compensation having been paid to Mrs. Holmes, or into court for her, as required by both the Constitution and the city charter, her proprietary interest in her property cannot lawfully he disturbed. No matter what may be said as to the necessity of Mrs. Holmes being made a party to the condemnation proceedings by name or of the necessity of personal service of notice upon her, the absolute necessity must be conceded of compensation for her property being paid to her, or into court for her, before her proprietary rights can be disturbed. Const. 1875, art. 2, sec. 21; city charter, art. 10, sec. 28; Troyer v. Wood, 96 Mo. 478; Railroad v. Fowler, 113 Mo. 473. (2) The payment of money into court, in the interpleader suit, did not affect Mrs. Holmes ’ property rights. Hilton v. St. Louis, 99 Mo. 199; Cloud v. Pierce City, 86 Mo. 366; Roselle v. Bank, 119 Mo. 84; Black on Judg., 223. (3) Mrs. Holmes is not estopped to assert her property rights. Tourville v. Railroad, 61 Mo. App. 533; Bales v. Perry, 51 Mo. 453; Throckmorton v. Pence, 121 Mo. 59; Eitelgeorge v. Bldg. Assn., 69 Mo. 52. (4) A bill for injunction to preA7ent destruction of the inheritance may be maintained by a married woman, Avho is a tenant by the entirety. Hall v. Stephens, 65 Mo. 674; Bains v. Bullock, 129 Mo. 120; Johnston v. Johnston, 173 Mo. 114; 1 Wash. Real Prop., p. 315; 2 Kent’s Com., p. 131; Railroad v. Fowler, 113 Mo. 473; Carpenter v. Grisham, 59 Mo. 251; McPike v. West, 71 Mo. 199; Turner v. Stewart, 78 Mo. 480; McElroy v. Kansas'City, 21 Fed. 257; Grosser v. City, 60 Hun 379 ; sec. 4339, R. S. 1899; Atkison v. Henry, 80 Mo. 153; Silvey v. Sumner, 61 Mo. 255; Bartlette v. O’Donoghu-e, 72 Mo. 565. (5) It is necessary, under the city charter, that all known owners of property sought to be taken for park and boulevard purposes should be made parties to the condemnation proceedings by “name, in order to acquire their interest in the property. City charter, art. 10, secs. 10, 11, 13, 28; Longwell v. Kansas City, 69 Mo. App. 177; Bales v. Perry, 51 Mo. 449; Throckmorton v. Pence, 121 Mo. 59.

      Edwin G. Meservey and Wm. A. Knotts for respondents.
    (1) Legal publication was had as to the owners of the land taken and in this manner service was obtained upon Mrs. Lyda M. Holmes as to any interest she may have had in tract No. 79. Charter, art. 10, sec. 11; Kansas City v. Duncan, 135 Mo: 580; Kansas City v. Ward, 130 Mo. 172; Eyssell v. St. Louis, 168 Mo. 616; Kansas City v. Mastín, 169 Mo. 89. (2) Plaintiff knew of the condemnation suit and its purposes, and, failing to protect her interests, is bound by the judgment and decree in the condemnation suit. Robbins v. Chicago, 4 Wall. 672, affirming 2 Black (U1. S.) 418-; Albert v. Hamilton, 76 Md. 311; Riley v. Bank, 81 Md. 27; Andenreid v. Woodward, 4 Fed. 173; Tel. Co. v. Tel. Co., 27 Fed. 663; Williamson v. Snelly, 92 Md. 9:; Thomsen v. McCormick, 136 111. 135. (3) The omission of the name of the plaintiff, from the map or plat filed in the condemnation proceedings for Admiral boulevard', does not affect the validity of the proceedings. Charter, sec. 10, art. 10; Kansas City v. Smart, 128 Mo. 289. (4) Kansas City deposited with the clerk of the circuit court of Jackson county the amount allowed for tract No. 79 in the condemnation proceeding for the use and benefit of whomever may be entitled thereto according to law. Charter, art. 10, sec. 28. (5) Upon payment of said fund into the circuit court for tract No. 79, the court vested the title to said property in Kansas City by a final judgment unappealed from, and subsequent acts of the court in disbursing said money will not divest title acquired by Kansas City.
   CRAVES, J.

In 1886 the plaintiff and her husband, Daniel B. Holmes, acquired title to a tract or parcel of land or lot in Kansas City, Missouri, the particular description of which will serve no good purpose here. The deed to them and which was of record, is such as created an estate by the entirety, and from that time on they continued as tenants by the entirety. On this tract or parcel of land was a brick dwelling house and other improvements. In February, 1901, the defendant, the city of Kansas City, being desirous of opening up> what is called Admiral Boulevard, and for that purpose, to acquire a portion of this and other tracts of land in said city, after passing in October, 1900, the necessary ordinance, instituted its condemnation proceeding in the circuit court of Jackson county, under the charter provision of said city relative thereto. The said city filed a certified copy of said ordinance, together with a plat of the property to be taken or damaged by the city in constructing this boulevard. This plat gave the names of the owners of the property, and as to this tract or parcel, which is known throughout this proceeding as tract 79, the names of Daniel. B‘. Holmes and the Jarvis-Conldin Mortgage Trust Company and Samuel M. Jarvis, Trustee, were named as owners. The name of Lyda M. Holmes did not appear upon this plat. In that proceeding the court record, omitting therefrom the ordinance mentioned therein, is as follows:

‘ ‘ In the matter of the condemnation of land for the opening and establishing a boulevard in the North Park District in Kansas City, Missouri, under ordinance of Kansas City, Missouri, No. 15,550, entitled, ‘An ordinance to open and establish a boulevard along Seventh street, Sixth street and Other Lands in the North Park District in Kansas City, Jackson county, Missouri,’ approved on October 9th, A. D. 1900.
“Now, on this, the sixteenth day of February, A. D. 1901, in this, the circuit court of Jackson county, Missouri, at Kansas City, Division No. 2, comes Kan-. sas City, Missouri, by its counsellor, R. B. Middlebrook, and by Delbert J. Half, attorney and counsellor of the Board of Park Commissioners, has caused to be filed in this court a certified copy of an ordinance of said city, No. 15,550, approved by the mayor of said city on the 9th day of October, A. D. 1900, and entitled, ‘An ordinance to Open and Establish a Boulevard along Seventh Street, Sixth Street and Other Lands in the' North Park District in Kansas City, Jackson county, Missouri,’ and has caused also to be filed a statement by plat prepared by the city engineer of said city, as provided by law, containing a correct description of the several lots or parcels of private property to be taken or damaged, and containing also the names of the owners, so far as known, of such lots or parcels of land or any estate or interest therein, who were such at the time of taking effect of said ordinance, and the court being fully advised in the premises doth make the following order herein, to-wit:
‘ ‘ To all persons whom it may concern.
“Whereas, a certified copy of ordinance of Kansas City, Missouri, No. 15,550, and entitled, ‘An Ordinance to Open and Establish a Boulevard along Seventh Street, Sixth street and Other Lands in the North Park District in Kansas City, Jackson County, Missouri,’ has been by the Board of Park Commissioners of said city caused to be filed in the circuit court of Jackson county, Missouri, at Kansas City, the general object and nature of which ordinance is to open and establish a boulevard in the North Park District of Kansas City, Missouri, fully set out and described in said ordinance, and to take and damage certain private property for said purposes, describing the private property so to be taken or damaged, and prescribing the limits within which private property shall be deemed benefited by the proposed improvements and be assessed and charged to pay compensation therefor, which' said ordinance is specifically as follows, to-wit:
“And said Board of Park Commissioners had caused to be filed also a statement by plat prepared by the city engineer of said city as provided by law, containing a correct description of the several lots or parcels of private property to' be taken or damaged, and containing also the names of the owners, so far as known, of such lots or parcels of land, or of any estate or interest therein, who were such at the time of taking effect of said ordinance:
“Now, therefore, all and each of you who may be concerned in said proceedings are hereby'notified that the twenty-third day of March, A. D. 1901, is the day, and the court room of Division No. 2 of the circuit court of Jackson county, Missouri, at Kansas City, at the county courthouse in Kansas City, Missouri, is the place hereby appointed and fixed for the empanneling of the jury to ascertain the compensation for the property to be taken or damaged under said ordinance, and the amount of benefits, if any, to be assessed against the property within the .benefit district, and to make assessments to pay for the property to be taken and damaged, and for the ascertainment of the compensation to be paid for the property to be taken or damaged, and the amount of the benefits to be assessed to pay therefor.
“And the court further orders that the parties owning or having an interest in the real estate proposed to be taken or damaged by said ordinance be served within said city with a copy of this order, either by delivering to each of said owners , or parties interested at any time before the said- day fixed herein for the hearing as aforesaid, a copy of this order, or by leaving such copy at the usual place of abode with some member of their respective families over the age of fifteen years, and in case of coxporations, by delivering such copy to the president, secretary or some managing officer, or’to any agent of such corporations, in charge of any office or place of business of such corporations, as by the charter of said city provided.
“And the court further orders that this order be published in each issue of the Kansas City Mail, the newspaper doing the city printing for Kansas City, Missouri, for four successive weeks, the last insertion to be not more than one week prior to the day fixed for said hearing. ’ ’

The plat mentioned in said order and filed with the certified copy of the ordinance, as above stated, had thereon the following certificate:

“I hereby certify that this statement by map contains a correct description of the several lots or parcels of private property to be taken or damaged as provided by ordinance of the mayor and common council of Kansas City, Missouri, No. 15,550, approved October 9th, A. D. 1900, and contains also the names of the owners so far as known, of such lots or parcels of lands to be taken or damaged, or of any estate or interest therein, who were such at the date of the taking effect of said ordinance providing for the taking and damaging of said private property.
“Robert W. Waddell,
‘ ‘ City Engineer.
“Office of Board of Park Commissioners,
Kansas City, Missouri.
“I hereby certify that the annexed map was delivered by the city engineer of Kansas City, Missouri, to the Board of Park Commissioners of said city' this 7th of January, 1901.
“Witness my hand and the seal of said board the day and date last aforesaid.
“Geo. E. Kessler, Secretary. (Seal of Board of Park Commissioners of Kansas City, Mo.)
“Filed Feb. 16, 1901.
“H. M. Stonesteeet, Clerk.
“D. H. McClanahan, D. 0.”

The return made by tbe officer serving this order showed service upon Daniel B. Holmes, but not upon Lyda M. Holmes. It also showed no service as to the Trust Company or its trustee, but as to them a non est was made.

This condemnation proceeding was proceeding No. 2619 in the circuit court of Jackson county. Daniel B. Holmes filed a claim for damages in this proceeding, claiming ownership of the property.

A condemnation jury was appointed, and on October 21st, returned their verdict and assessment of damages, which as tó tract No. 79' was $2,737.50.

January 18, 1902, the court entered judgment on the verdict returned by said jury, approving said report and verdict in every particular. November 29', 1902, the court entered judgment, finding that all the tracts and parcels of land had been paid for and decreed title in Kansas City for the public use aforesaid.

On November 1, 1902, Kansas City, as plaintiff, filed another suit, being case No. 9895, which was in the nature of a bill of interpleader, against Edward R. Heald, Daniel B. Holmes, Samuel M. Jarvis, the Jarvis-Conklin Mortgage Trust Company, and a number of other parties, but Lyda M. Holmes was not a party to this proceeding. In this case, the city sought to have all parties brought into court and have them interplead and establish their respective claims to the several sums of damages awarded in the condemnation suit, first above described.

On November 17, the city for the first time paid into court the sum of $2,737.50, awarded as damages in the condemnation suit, and this payment was made in the interpleader suit, case No. 9895, as appears by the clerk’s memoranda on the files in case No'. 2619, which memoranda'is in this language: “Nov. 17, 1902. Rec’d of city in case 9895, the sum of $2,737.50, on tract 79.” Tract No. 79 was also known to the pleadings in the interpleader suit.

In this interpleader suit, Lyda M. Holmes was not served and did nothing therein. Daniel B. Holmes files his interplea claiming the whole fund thus paid into court. The mortgage company and its trustee filed its answer disclaiming any interest in the said fund of $2,737.50, thus paid in with the bill of interpleader. The court thereupon decreed that said Daniel B. Holmes was entitled to the fund and the same was paid to him March 30', 1903. Shortly thereafter, Michael Ross, under a contract of purchase from the city, entered said premises and began to remove the house therefrom which he claimed to have purchased from the city, and thereupon Lyda M. Holmes, the plaintiff herein, instituted the case at bar, which is an injunction suit, wherein she alleges her interest in the property hereinabove stated; that she was and had been for some time in possession thereof, renting the same; that she had never been paid for her interest in said property, and asks relief as follows:

“Wherefore, plaintiff prays the court that the defendants and each of them, their agents, attorneys, representatives, servants and employees be forever perpetually enjoined and restrained from tearing down or removing said brick dwelling house, or any part thereof, from said tract of land; from in any manner whatever interfering with or disturbing the earth or soil of said tract of land, or any of the improvements thereon, and from making any public use whatever of said tract of land as a boulevard or otherwise, and for such other and further relief as the plaintiff in equity and good conscience may be entitled to, and for costs of suit,” etc., etc.

Defendant, by answer, pleads the condemnation proceeding and tbe interpleader proceeding aforesaid; the claim of the money made by Daniel B. Holmes; the judgments in each of said proceedings; the payment of the money to Daniel B. Holmes, and further avers that Daniel B. Holmes was personally served in the condemnation proceeding and that his wife was told by him of such proceeding and the nature thereof. Upon the trial of this cause it was admitted, subject to relevancy and competency, as follows:

“It is admitted that prior to the trial of the case in condemnation and during the pendency of that action, plaintiff, Mrs. Holmes, was informed by her husband of the fact that he had been served with a copy of the order of the court of the pendency of the action' for the taking' of this property among other property for the purpose of the establishing of a boulevard.”

By its judgment upon the t|ial of the cause, the court dismissed plaintiff’s bill and entered judgment against her for costs. Motioil. for new trial was filed, but overruled, and plaintiff appealed. The respective contentions of the parties will be noticed in the course of the opinion.

The contentions in this case may be summarized thus: Plaintiff claims that she had an interest in tract No. 79, and that it cannot be taken for the public use indicated without just compensation. She further claims that she has never been compensated in any way, or in either of the two proceedings mentioned above. She claims that, inasmuch as she was a known owner residing in Kansas City, and the court having made an order for personal services as to such owners in the condemnation proceeding, and no such service was had upon her, she was not a party to that proceeding, and in no way bound thereby. She further contends, that even if she was, in contemplation of law, a party to the condemnation proceeding, yet as no payment of damages was made to her, and no money' deposited in court in that proceeding for her as the assessed damages on tract 79, she is in no way bound by .the decree in that case, and would not be bound thereby by the payment into court, in another proceeding to which she was not a party, of the sum assessed as damages in the condemnation proceeding. Her contention is thus double in character, and proceeding in reverse order, as the more natural course, where the determination of the latter contention' may determine the case, we will take up the latter contention first.

I. That Mrs. Holmes has not been compensated for her interest in this property stands out in bold relief on the record before us. In fact it is not contended that she has been paid a cent. Nor do we take it that it is seriously contended that she had or has no such interest as entitles her to compensation under the constitutional provision requiring compensation for private property when taken for public use. If such were contended, the contention would not be well founded. The city’s contention is that the money was paid into court for her benefit, and that question we discuss later. That Mrs. Holmes had an interest such as to bring her within the constitutional guarantee, we think is well settled. The deed to the property made Mr. and Mrs. Holmes tenants by the entirety. The grantees are thus named in the deed conveying the title to them: “And Daniel B. Holmes and Lyda M. Holmes, his wife, of the county of Jackson, State of Missouri, parties of the second part;” and the granting clause is, “Do, by these presents, grant, bargain and sell, convey and confirm, unto the said parties of the second part, their heirs and assigns,” etc. So that there is no question that there was created an estate by the entirety. \ Such an estate gave to Mrs. Holmes an interest in the property which must be paid for prior to its seizure and nse for a public purpose.

• The case of Grosser v. City of Rochester, 60' Hun 1. c. 380, is exactly in point. This was an injunction by the wife to enjoin the city from constructing a sewer across property held by herself and husband as tenants by the entirety. The husband had been made a party to the condemnation proceeding, but the wife had not. The money had been paid into court in the condemnation proceeding for the benefit of the husband. The city let a contract for the construction of the sewer and the work was progressing when the suit was brought. Both the city and the contractor were made parties defendant. In that case, the court said:

“We agree with the learned referee, and for the reasons well stated by him in his opinion, that service of notice upon the husband and his appearance in the proceeding did not make the wife a party thereto nor bind her interest in the property, and, therefore, that as against her the city acquired no' right in the premises; but we cannot agree with him that she had no rights in the premises which were liable to be injuriously affected by the building of the sewer under the proceedings actually had.
“It is true that under the doctrine of Bertles v. Nunan, during the joint lives of the husband and wife the husband has the right to the exclusive benefit, use, possession and control of the land and may take all the profits thereof; and may mortgage or convey an estate to continue during the joint lives; but he may not make any disposition of the land that would prejudice the right of the wife in case she should survive him. [Bertles v. Nunan, 92 N. Y. 156; Coleman v. Bresnaham, 54 Hun 619.] The husband, therefore, might have granted the right of way during the joint lives, with provisions against a permanent injury to the freehold; and whatever he might grant, the city might acquire from him by condemnation proceedings to which he alone was made a party. But this is not what has been done in this case. Here the city has proceeded against the husband as the sole owner of the title to acquire a perpetual easement in the land, which includes the right for all time to maintain the sewer and to enter upon the property to repair and renew it. All these rights the city has already' acquired on the face of the record, and its counsel is contending here that it has in fact acquired them against the plaintiff by the proceeding against her husband. The learned referee, while holding the contrary, suggests, in substance, that it will be time for her to contest the claim of the city when her title shall become absolute by survivorship'. But suppose the sewer is built and put to its proper use of draining a large and populous section of the city, and then her husband dies. How shall she proceed to assert and enforce her rights? If the city decline to recognize them, shall she tear up> or cut off the sewer, or, as the referee suggests, restrain the city from its use; and in either case with how much more of inconvenience and expense than if she had taken her remedy when those rights were only threatened with invasion. Or suppose the husband dies when the work is only fairly under way, with her lot divided by an excavation and the earth or rock which has been thrown out of it. Her title has now become sole and absolute and the city has no right to proceed a step further with the work. But they have paid for the damage so far done in the award made by the husband, and if the plaintiff stop the work where it is, she may restore the lot to its proper condition at her own expense.
' “It seems very clear that the plaintiff has rights by virtue of her joint tenancy which are liable to be seriously impaired by the action which the defendants are about to take.
“We think the learned referee erred in the latter of his conclusions above mentioned, and that the plaintiff, upon the facts appearing by the record, was entitled to the restraining process of the court to prevent the.prosecution of the work on the plaintiff’s property until .they have acquired the right as against her. ’ ’

The action by the city in the case at bar appropriates a part of the tract of land and damages the remainder, as found by the verdict and judgment. The inheritance itself is stricken at, and in part destroyed and in another part .damaged. It has always been held that in a case wherein the inheritance itself is involved the wife must join in the action. In 2 Wash. on Real Property (3 Ed.), p. 305, it is put thus:

“They are not properly joint-tenants of such lands, since, though there is a right of survivorship, neither can convey so as to defeat this right in the other. Each takes an entirety of the estate.....As the husband is entitled to the entire rents of the wife’s lands, except as hereinbefore stated, it follows that he alone can sue for an injury to the estate which affects these. But if the injury affect the inheritance, the action must be in their joint names, and it will survive to her if she outlives him.”

This joinder of parties is obviated by our statute pertaining to married women. [Bains v. Bullock, 129 Mo. 117.] But the point we are now making is that the wife had a substantial and recognized interest in the inheritance, and could maintain an action when injury was done thereto.’

Such is her interest that she, without joining her husband, can sue for the possession thereof as against all persons except the husband. [Bains v. Bullock, supra.] In that case, we said:

“But it is urged that, as the estate is invested in the husband and wife by the entirety, the statute giving the wife a right of action does not authorize her to sue alone for the violation of the joint rights of herself and husband. But an estate of this character is not a joint or common estate. The conveyance vests in the husband and wife each the entire estate, not a joint interest. Each is entitled to possession as against every person except the other. It is true the estate is entire and cannot, by partition or otherwise, be segregated while the marital relation exists, so as to give- each grantee either an undivided interest in the land, or a right in severalty to a particular part of it. [Russell v. Russell, 122 Mo. 235.] But it is also true that the grant vests in each grantee the entire estate. The statute abolishes the legal unity between husband and wife, which gave rise to the estates by the entirety, but the estate itself has not been abolished. [Sec. 8844, R. S. 1899.]
The marital control by the husband over the real estate of the wife is removed and she is given the power to sue ‘ at law or in equity with or without her husband being joined with her as a party.’ The right to sue in her own name seems to be unlimited. That she has the right to sue in ejectment to recover possession of her land has-been decided. [Arnold v. Willis, 128 Mo. 145.]
“Under the deeds to herself and husband, then, plaintiff holds the entire estate in the lands claimed. Defendants do not claim under the husband, nor does it appear that the possessory rights of the husband will, in any manner, be affected by the suit of the wife or any judgment she may recover. Plaintiff, therefore, as against defendants, is entitled to the possession and has a right of action therefor.”

And such is her interest that “divorce of the wife from the husband results in vesting in the wife her moiety.” [21 Cyc. 1201, and cases cited.] We have held in this State that the divorce of the wife from the husband gave her absolute title to her moiety, and that an action in partition would lie. [Russell v. Russell, 122 Mo. 235.]

So that we have no hesitancy in saying that Mrs. Holmes had snch an interest in the property as demanded at the hands of the city just compensation before the property or any part thereof conld be taken for a public purpose. That she received no snch compensation is an admitted fact. Was there snch compensation deposited in court for her benefit, and is she thereby debarred of this action? To this question we proceed next.

II. Under this point we assume, without conceding or discussing the question, that Mrs. Holmes was by the general order of publication, although not personally served, made a party to the condemnation proceeding. Conceding for the sake of the argument that she was, have her rights been affected thereby? We think not, and for several reasons. The constitutional provision pertaining to the subject reads thus:

“Private property shall not be taken or damaged for public use without just compensation, and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein vested. ’ ’

The city charter, art. 10, sec. 28, has this provision: “The city shall not be entitled to the possession of any lot or parcel of property taken under the provisions of this article until full payment of the compensation therefor, as determined, be made or paid into court for the use of the persons in whose favor such judgment may have been rendered, or who may be lawfully entitled to the same. ’ ’

We take it that this charter provision is not broader than the Constitution. It could not be and yet stand as valid. It must be borne in mind that not a dollar of the damages allowed in the condemnation proceeding was ever paid into court in that case. The city evidently had in mind (a very natural inference when the names of the owners of tract No. 79 as appeared from the plat filed with and made a part of the pleadings in the condemnation case are remembered) that there was a question as to whether this allowance should be paid to Daniel B. Holmes or the Jarvis-Conklin Mortgage Trust Company. Evidently in doubt-upon that question, the city did not pay into court the amount of the allowance, $2,737.50. The city in effect abandons that case, and files suit No. 9895, a bill of interpleader, and in this suit, for the first time, brings the money into court, and asks that the said Daniel B. Holmes and Jarvis-Conklin Mortgage Trust Company, be required to interplead and show their respective rights to that fund. This fund thus deposited in court, was one deposited under the terms of this suit, as a fund belonging either to Daniel B. Holmes or the Mortgage Trust Company, or both, but not as a fund for the benefit of Mrs. Holmes for she was not named in the proceeding or made a party thereto. Had the city been paying into court a fund, in which, it recognized that Mrs. Holmes had an interest, by its bill of interpleader, it would have so stated, and Mrs. Holmes would have been made a party defendant therein, and required to set forth her claim to the fund. This suit was a separate action, and one in which Mrs. Holmes could not have been brought into court except by personal service, she being .a resident of Jackson county. Mr. Holmes had a substantial interest in the property taken and the city thought that the Mortgage Trust Company might have a substantial interest, so that it brings into court $2,737.50'," and by its bill of interpleader in effect says, “I have and hold this sum of money, which either belongs to Daniel B. Holmes, or the Jarvis-Conklin Mortgage Trust Company. This money,'with this bill I bring into court, and ask the court to require these parties to settle their respective claims thereto.” Such a payment into court is not a payment into court of any money for the benefit or use of Mrs. Holmes. On the other hand it is made by the bill of interpleader and the parties thereto- a specific payment into court for the use and benefit of Daniel B. Holmes or the Mortgage Trust Company or both. Had the money been paid into court in the condemnation case, a different question might have been presented, not necessary here to discuss.

In this case, the city by its act of paying the money on a bill of interpleader, and in that bill naming the parties who might be entitled thereto, but leaving out and excluding Mrs. Holmes from the list, has made a deposit which was not for her use or benefit, but for the use or benefit of others, specifically named in the bill. By failing to mention Mrs. Holmes in its bill of inter-pleader, the city negatives the idea that any money, at any time, has ever been paid into court for the use of Mrs. Holmes.

In Railroad v. Fowler, 113 Mo. l. c. 473, it is said: “Section 21 of article 2 of the Constitution is emphatic, . . . The compensation . . . must be p-aid to- the owner or into court for him, before the condemning company can take possession. To use the language of the Constitution, ‘and until the same [the compensation] shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. This constitutional provision contemplates that the compensation shall be paid before the property can be disturbed. It is not satisfied with a mere deposit by way of security, not to be withdrawn until the final disposition of the case. It says nothing about a deposit by way of security. If the owner will not accept the money, it can be paid into court for him, not there to remain as a security for the final award, but for his immediate use. He has the right to withdraw and use the money. . . The right to have the amount of the award placed at the disposal of the property-owner before his property is disturbed is a constitutional right, of which he cannot be deprived by any act of the Legislature.”

And we will add here that the constitutional mandate is not only not met by a conditional deposit of money, but it is likewise not met by the deposit in court of the damages assessed for the use of parties other than the owner. Nor is it met by paying into court for the special purpose of having the court determine which of two parties is entitled thereto, leaving out of the determination the owner or one of the owners, as in this case.

Prom this point of view it therefore appears that no money has been paid Mrs. Holmes, and no deposit made for her use or benefit. Under such circumstances the city has no right to harm her inheritance in the property in dispute, and in such case, injunction is the proper remedy. These conclusions obviate the discussion of the other interesting question, as to whether or not she was a party to and bound by the condemnation proceeding. In our judgment when the Constitution says that the owner must be paid, or the money deposited into court for the owner, the term “into court” means in the condemnation proceedings. But it is not necessary to go that far in this case, because the city has qualified its payment into court, by naming the parties in the bill of interpleader, for whose use and benefit the money was brought into court, and Mrs. Holmes was not one of these. Leaving her name out of the bill of interpleader negatives the idea that the payment therewith tendered was for her benefit.

It therefore follows that this cause should be reversed and remanded with directions to the trial court to enter judgment permanently enjoining defendants, as by the plaintiff prayed, and it is accordingly so ordered.

All concur.

ON MOTION TO MODIFY JUDGMENT.

GRAVES, J.

Plaintiff files motion to modify onr original judgment in this case. The original suit was purely one asking for injunctive relief. In that suit, among other questions, the question of plaintiff’s right and interest in the property involved was in issue, as well as the further question as to whether or not she had been compensated for it. The trial court dismissed her bill and pending the appeal, it appears from the motion to modify the judgment, that the city of Kansas City appropriated her property. We say her property, for such was the adjudication of this court, which is final, not only in this action, but in all others wherein it could be pleaded as res adjudicaba. So also with regard to the question of compensation to plaintiff. By our judgment, the judgment of the lower qpurt was reversed and remanded with directions to enter up a judgment making the temporary injunction permanent. By the present motion we are asked to so modify the directions given in that judgment “as to permit said appellant and plaintiff to file á supplemental petition in said circuit court setting up such damages as she claims to have sustained, as aforesaid, and authorizing said circuit court to inquire into said claim for damages and to award to appellant and plaintiff such damages as upon such inquiry the said circuit court may find that she has sustained, as aforesaid.”

We hardly think this the proper practice. If pendente lite the city bodily appropriated the plaintiff’s property, wrongfully, as would appear from our opinion, then plaintiff has her full and adequate remedy to recover damages for the same. She has the same rights as she would have had in case that, without the injunction suit, the city had wrongfully appropriated the property. We are of the opinion that, inasmuch as the question of damages was not a matter before this court, we should not modify our judgment, so as to cover matters not here. Plaintiff, as above stated, has her adequate legal remedy and in addition has many questions of her case adjudicated. The better practice is to leave her to the legal action.

For these reasons the motion to modify the judgment will he overruled.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    BRIDGET TECKENBROCK v. ANNA McLAUGLHIN et al., Appellants.
    Division One,
    February 26, 1908.
    1. WILL CONTESTS: Question for Jury. Not every -will contest is to be submitted to the jury. The court may give a peremptory instruction for proponents, or sustain a demurrer to contestants’ evidence, as in other cases. Statutory will contests are on the same footing as ordinary law suits, as regards the province of the court or jury.
    2. -: Undue Influence: Statement By Son-in-law. A statement made by the husband of one of the devisees, to a witness, in the absence of testatrix, that testatrix “is no lady, because she did not do what I wanted her to do,” meaning the making of a will in accordance with his wishes, is not competent evidence of undue influence.
    3. -: -: Statement Made By Devisee: As Affecting Other Devisees. Where the petition charges no conspiracy between the devisees to influence their mother to make a will, it is not error to exclude a statement made by a daughter to a third party, in the absence of the mother and her other three children, that “while I live” her disinherited sister “shall not receive one cent of my mother’s property if I can help it.” The issue is will or no will, and a'will that is shown by competent, proof to be in fact the product of the undue influence of one devisee, out of several, is as much void as if it was the product of the undue influence of all of them; but where it is not shown that this daughter exercised any'influence over her mother or had anything to do with the execution of the will, .her unsisterly statement or admission was not competent against the others, to prove that undue influence was exercised by her. [Following Schierbaum v. Schemme, 157 Mo. 1, and overruling Gordon v. Burris, 141 Mo. 602, and Jackson v. Hardin, 83 Mo. 175.]
    4. -: -: Daughter: Decrease of her Share. A daughter’s influence in having her mother in her last will omit a special annuity and bequest made to her by a former will, and to increase to that extent the share of the other devisees, cannot be said to be undue.
    5. -: -: -: Explanation. An unmarried daughter, who resided with her mother, lovingly cared for her, and turned into the family chest the surplus of her wages earned as a stenographer over and above what was necessary to clothe herself, and went with her to the lawyer’s office when the will was made and at her request made the appointment with him for the occasion, stoodñn no such fiduciary relation to the mother as threw upon proponents the burden of explaining the provisions of the will or as would raise a presumption that it was produced by her or their undue influence.
    6. -: -: How Shown and Effect. Undue influence need not be shown by direct evidence. It may be shown indirectly and arise as a natural inference from other facts in the case. But it cannot rest on mere opportunity to influence or on suspicion; there must be proof of undue influence itself,t either in fact or presumptively, and to be effective it ought to be sufficient to destroy the free agency of the testator at the time of making the will.
    7. -: -: Statements Made by Testate. Where there is an issue upon the state of affections of the testatrix, statements and admissions made by her may be admitted upon that point, but they are not to be received or taken as proof of the truth of facts narrated. They are not to be taken as true for the purpose of establishing undue influence and defeating the will.
    8. -: -: Prior Wills. About 1882 plaintiff married against the wishes of her father and mother, and thereafter a business quarrel arose between her father and husband, which developed into a lawsuit in which the husband obtained judgment, which the father paid. Thereafter both the father and mother made wills, by which they disinherited plaintiff, and he gave all his property to his wife, suggesting therein that, should she survive him, she give it to his other four children. After his death and the death of one of the four children, plaintiff’s mother in 1892 made a new will, by which she disinherited plaintiff, gave an' annuity to her two unmarried daughters and the balance to the three of them in equal portions. Subsequently one of the annuitants married, and the other became self-supporting, and then, in 1903, she made a third will, by which, at the request of the unmarried annuitant, she cut out the annuities, gave to her her household effects, and divided the balance equally between the same three children, again disinheriting plaintiff. This unmarried daughter, at her request, made the appoinment with the lawyer to draw up the will and went with her when it was drawn up and executed. There was testimony that, while the first and second wills were operative, and even after the one of 1903 was executed, when none of the principal beneficiaries was present, the mother said to plaintiff and others that she had a kindly testamentary disposition towards plaintiff, that she recognized her faithful services in the days before the breach of the family peace, that she had become reconciled towards her, that it was her heart’s desire to.treat her in her will as she didder other daughters, but that she was in bonds on account of their . opposition and could not do as she wanted to do without exposing herself to bother, trouble and unhappiness. Held, that there was no evidence of undue influence, that her statements and admissions were not evidence to establish undue influence, and the court properly gave a peremptory instruction for proponents.
    Appeal from St. Louis City Circuit Court. — Eon. O’Neil Ryan, Judge.
    Reversed and remanded (with directions).

      Rassieur, Schnurmacher & Rassieur for appellants.

      John 8. Leahy and Taylor R. Young for respondent.
   LAMM, J.

Bridget, a married daughter of Mary McLaughlin, as contestant, brought her statutory action against contestees, her sisters and the husbands of those married, to contest her mother’s will — her said sisters being the beneficiaries. At the trial a peremptory instruction was given for contestees, requiring the jury to find the paper writing in question was the last will and testament of Mary McLaughlin. From an order setting aside the verdict, defendants appeal.

The issue on the pleadings is outlined by plaintiff’s counsel as follows: “The pleadings in the case are brief and concisé and raise but one issue. That is, whether or not the will offered for'probate was executed by deceased at a time when she was so under the influence of certain defendants and was so intimidated by them that the will was not in fact the will of deceased.”

In view of the small compass so fetched on the issues in the pleadings, it will be useful to keep in mind from end to end of the case that certain issues quite common to will contests are absent here, and, therefore, those principles of law applicable to such absent issues are not to be indiscriminately applied in the determination of the case at bar. For instance: (1) There was no issue on testatrix’s testamentary capacity. - The case proceeded below on the theory she had a sound mind and disposing memory at the date of the will. (2) Neither was there any issue tendered of conspiracy between contestees to concoct the will or that it was a product of such privity of design or conspiracy. (3) Neither was there any issue tendered to the effect that the beneficiaries under the will, or any of them, held such fiduciary relation to testatrix as would presumably give their minds mastery over hers and thus raise a presumption of undue influence and cast upon them the burden of rebutting it.

At the trial contestees introduced the attesting witnesses, made due proof of formal execution, introduced evidence tending to show testatrix was of sound and disposing mind and memory and, having thus made a prima-facie case, rested. Thereupon plaintiff offered her evidence, and at the close of her case the peremptory instruction was given.

The new trial was put below upon the grounds, first, that there was substantial evidence put in tending to show undue influence; and, second, that there was error in excluding certain testimony offered by plaintiff.

The will in question bears date of February 23, 1903, and testatrix died the following November. In the summer or early fall of 1902, a witness for plaintiff, one Reuter, had a conversation with testatrix and was allowed to detail it to the jury. On the morning following the evening of that conversation, Reuter held another with Mrs. Bentzen, one of the contestees, and in that connection a certain offer was made, not only of what Mrs. Bentzen said to Reuter, but of what her husband, Otto, said to him. That offer was as follows:

“We offer to show by the witness George Reuter that on the morning following the evening on-which he had the conversation with Mary McLaughlin, deceased, on the bench in the yard of the Kossuth avenue residence of Otto Bentzen, Mamie Bentzen, one of the defendants in this cause, asked the witness what he was talking to her mother about, and when he replied that she was talking to him about her will she replied in substance, ‘I know that she was talking to you about her intention to leave Beazie (meaning the plaintiff, Mrs. Teckenbrock) an equal share, but while I live that ---shall not receive one cent of my mother’s property if I can help it. ’
“Also, further, that Otto Bentzen, upon the same occasion, stated to witness that deceased was no lady, because she would not do what he wanted her to do, meaning to make a will in accordance with his wishes. ’ ’

On objection of defendant’s counsel, the court refused the offer, and in granting a new trial laid stress on its excluding so much of the offer as related to the statements of Mrs. Bentzen.

Appellants’ counsel contend the court did not err in excluding that evidence, and contend that the court did right in taking the case from the jury; because, they say, there was no substantial evidence tending to show undue influence. Contra, respondent’s counsel outlines his contentions as follows: “We are here contending, first, that the trial court committed reversible error in excluding certain evidence when offered by the contestant, and hence the learned trial judge was right in reversing himself and granting a new trial, and, second, that even on the evidence as it was allowed to go in, the question'of undue influence should have been submitted to the jury.”

Attending to questions made on appeal, other material facts will appear in the opinion.

I. The first point of respondent’s counsel is that: “Any contest of a will raises an issue of fact and should be submitted to a jury.”

Counsel does not say in so many words that a will contest differs from other law cases, in that a court has no prerogative to direct a verdict; but if by use of the broad language of his proposition he suggests such idea, he is in error. That will contests are peculiar in certain features, is true. They are held to be a solemn form of probating wills under our statute. It has been said, speaking by analogy, that such contests are in the .nature of appeals from the interlocutory action of probate courts in tbe mere ex parte probating of wills in common form. [Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Cash v. Lust, 142 Mo. l. c. 637.] Tbe burden of proof is on contestees, in tbe first instance. [Campbell v. Carlisle, 162 Mo. l. c. 644; Maddox v. Maddox, 114 Mo. l. c. 46; Mowry y. Norman, 204 Mo. 173.] They must make a prima-facie case as proponents of tbe will, hence they have the opening and closing to the jury. [Benoist v. Murrin, 58 Mo. l. c. 321.] Having made that prima-facie case, contestants introduce their proof. Thereupon the proponents of the will offer their evidence in rebuttal and to fortify their prima-facie case. [Harris v. Hays, supra; Carl v. Gabel, 120 Mo. 283; Jackson v. Hardin, 83 Mo. l. c. 187.] It has been held that contestants should not be required to give security for costs and that the case should not go out of court without a judgment in solemn form probating the will, or refusing to probate it. [Cash v. Lust, 142 Mo. l. c. 637.] The foregoing singularities make a will contest one sui generis in a sense. But, when so much has been said, it may also be said it is not the rule in Missouri that the courts in a will contest may not say there is no substantial evidence to sustain a certain issue and may not direct a verdict one way or the other based on the existence of uncontradicted testimony on an issue, or on tbe absence of proof on such issue. Statutory will contests in that regard are on the same footing as ordinary law suits. [McFadin v. Catron, 138 Mo. l. c. 213-27; Story v. Story, 188 Mo. l. c. 129; Bradford v. Blossom, 207 Mo. l. c. 228.] In the latter case, a judgment was directed rejecting the will. In the two former, judgments were directed solemnly probating wills.

The rule in this jurisdiction being as indicated, the court on the one hand or the jury on the other has no less and no greater prerogative in a will contest than in any other suit at law; and, therefore, the rule is that contestants are entitled, on demurrer to the evidence, not only to the full force of all their uncontradicted testimony, but to have their evidence taken as true where contradicted, and every reasonable inference to be deducted from the testimony is to be allowed in their favor in determining- the law question made on demurrer. But if proof is lacking-, or if it runs so strongly one way that there can be no two ways about it, the court may direct a finding.

II. Did the court err in refusing the offer made of evidence from Reuter? We think not, because:

(a) Mary McLaughlin had five children — the plaintiff, Bridget Teckenbrock; a son, Michael, who died before his mother, intestate and without leaving auy descendants; the defendant, Anna, an unmarried daughter; a married daughter, Catherine Schroeter, intermarried with Bruno Schroeter; and Mary Bent-zen, intermarried with Otto Bentzen — all of them co-defendants with Anna. Mrs. McLaughlin died seized and possessed of property of a value not definitely fixed but amounting- to several thousand dollars. To Bridget she left one dollar. To the single daughter, Anna, she bequeathed all her household effects including- “goods and chattels, wearing apparel, bric-a-brac and jewelry.” The residue of her estate, real and personal, she -devised and bequeathed to Catherine', Mary and Anna in equal shares and unto their heirs and assigns forever.

Otto Bentzen did not share as devisee or legatee under the will. Therefore, it is not apparent why, on any view, his statement was admissible in evidence. As pointed out, the court laid no stress on this portion of the offer and we do not understand that plaintiff’s learned counsel now insists it was error to exclude what Reuter would say Otto said to the effect, “that deceased was no lady, because she did not do what he wanted her to do, meaning to> malee a will in accordance with his wishes.”

(b) Recurring to the remainder of the offer, it raises this question: Where there is no charge or proof of a conspiracy between Anna, Mary and Catherine to concoct a will disinheriting Bridget, is it competent to prove the admission of Mary made prior to the execution of the will not in the hearing of the others, or of the testatrix, to the effect that: “I know that she (deceased) was talking to you (Reuter) about her intention to leave Beazie (meaning Bridget) an equal share, but while I live that — shall not receive one cent of my mother’s property if I can help it?” And in answering that question it is important to keep in mind that the issue is: Will or no Will. If the issue was whether Mary’s devise alone should lapse then another and an essentially different thing would be here for determination.

A similar proposition was before this court in Schierbaum v. Schemme, 157 Mo. 1, in June, 1900. There Mrs. Schierbaum was allowed to testify to a damaging admission by George Schemme, one of the legatees, and it was held error. The question was elaborately discussed on principle and authority. It was pointed out that the general rule permitting the admission of a party to a suit to be put in evidence has a main qualification in a will contest where there are other legatees and devisees vitally interested in upholding the will. It was pointed out that in will contests in Massachusetts and Pennsylvania, the exception to the general rule relating to admissions was maintained by reasoning satisfactory to this court and that such exception was sustained by the weight of decided cases.

Certainty in a rule of law is of prime importance in administering justice, and it is not apparent to us why we should unsettle the doctrine of the Schierbaum case. That doctrine, discriminatingly applied, does not cover a case charging in the petition and showing in the proofs that there was a privity of design among the contestees. In snch case or in a case where there is only one devisee or legatee to he affected by avoiding the will, the general rule relating to admissions of parties to the suit may be allowed to obtain in its vigor. [Clark v. Morrison, 25 Pa. St. l. c. 456; Wood v. Carpenter, 166 Mo. l. c. 485; Meier v. Buchter, 197 Mo. l. c. 92.] The Schierbaum case was followed in King v. Gilson, 191 Mo. l. c. 333, and in Seibert v. Hatcher, 205 Mo. l. c. 101, et seq.]

In deciding the Schierbaum case, certain cases announcing a contrary doctrine were overruled by name. It seems, however, the heresy exploded had been imbedded in other cases escaping the eye of this court, for example: Gordon v. Burris, 141 Mo. 602, and Jackson v. Hardin, 83 Mo. 175. So far as the Gordon case and the Jackson case announce a conclusion contrary to the Schierbaum case, they are now overruled; and we leave the subject with these observations : A will that is shown by competent proof to be in fact the product of undue influence of one devisee or legatee, out of several, is as much void as if it was the product of the undue influence of all' of them — it is a bad will. The innocent may not take property as the result of a tainted devise or bequest merely because they were free of the vice. A gift fetched by an unchaste hand may well be held to be polluted. Sutjh is not the question here, but a deeper one arises, viz.: Had Mrs. Bentzen undue influence over her mother? —did she actually exercise such undue influence? In this case it is not shown that Mrs. Bentzen had anything to do with the execution of the will in suit. The offer stopped with her bald admission relating to her unsisterly but individual desire and feeling. As stated by appellants’ learned counsel, “The question is, whether the proof (the admission) is competent as against the others, to prove the fact that undue influence was exercised by one?”

Under the doctrine of the Sehierbaum case and cases following that, the admission was not competent for that purpose and, therefore, in so far as the trial court was influenced in setting aside the verdict by the exclusion of that admission, it was error.

III. With the foregoing questions at rest, we reach the main point, viz.: Was there any substantial evidence tending to show the will to be. the product of undue influence? This question seeks other facts.

Uncovering them, it appears that in 1881 or 1882 Bridget married against the wishes of her father, Patrick, and her mother. Presently, on top of this forbidden marriage, an unhappy business quarrel sprang up between her and her husband on one side and her father and mother on the other. It found its way into court and was so inflamed that it burned in two all domestic bonds uniting Bridget to her family. Finally, in 1888, the suit culminated in a judgment in favor of Mr. Teckenbrock and against Bridget’s father and it seems this judgment was largely based on the testimony of Bridget herself. The judgment was paid and at about that time Patrick and the mother made cross-wills disinheriting her. The merits of that family lawsuit are not before us and may be left to oblivion. The justice or injustice of the wills of 1888, we may not determine. It is sufficient to say that said wills evidenced a then settled policy in her parents, and that Bridget was disinherited by them because they chose to consider the judgment obtained against the father and paid off by him represented Bridget’s fair proportion of her father’s then estate. These cross wills were drafted by Judge Rassieur, who had been counsel for the father in the litigation and was his trusted legal adviser. By Patrick’s will the estate was left to his wife, if she survived him — four children, Michael, Catherine, Mary and Anna, being commended to her care and protection. In case the wife did not survive, the estate went to said four children, share and share alike. The mother’s will of that date was but the echo of the father’s in terms. Presently the father died and his widow, acting also as testatrix, took the estate under the will after an administration in the probate court in which Judge Rassieur represented her and the estate. Michael afterward died, and in 1892 the mother made a new will after consultation with Judge Rassieur. Like the former, this one was drawn by bim as family counselor. By it Bridget was again disinherited. Certain annuities were provided for the then single daughters, Anna and Catherine, to be paid them for each and every year until they severally ceased to work for testatrix. The residue of the estate was divided between the daughters, Anna, Catherine and Mary. In the will of 1892, Luke McLaughlin, a brother of Patrick, was made executor, and this will and the former ones were left in Judge Rassieur’s safe. Afterwards business differences arose between testatrix and Luke. He had borrowed a sum of money from her, secured by a second mortgage. Negotiationshaving failed to recover this money, the mortgage was foreclosed by sale under the supervision of JudgeRassieur. Desiring to change the executor and to eliminate the annuities provided for the daughters, Anna and Catherine, testatrix in 1903 made the will now under contest. There is proof that the provisions of the wills of 1903, 1892 and 1888, disinheriting Bridget, had their root in the will of Patrick McLaughlin under which testatrix got the estate. She seemed to look on that provision in her husband’s will as somewhat binding upon her and as calling on her to carry out a wish of his that may be said (in her mind) to run with the estate. The material terms of the last will have been set forth. In it Anna was made executrix and in case she died the son-in-law, Bruno Schroeter, was named as executor. Bridget,, as said, was again disinherited. The annuities to Anna and Catherine were dropped and to Anna was left the household effects including wearing apparel, hric-a-brac and jewelry óf a value not disclosed. The cause of Anna’s preference is explained in the will itself to be that: ‘ ‘ She having remained with me longest and rendered so many services without compensation, which makes it proper that I should make this bequest in recognition of her faithful services aforesaid.” Saving Anna’s preference, the estate was divided equally between her and her sisters, Catherine and Mary. This will was also the result of a consultation by testatrix with Judge Rassieur, as her counselor. It revoked all prior wills, as did each of the others in turn, and by direction of the mother was taken by Anna and put in a safety deposit box, under the mother’s injunction not to- mention the fact- of its execution. There was evidence that Anna’s annuity was left out of the will at her request on the ground that she felt it was unjust to her two sisters, Mary and Catherine. When the 1903 will was made, Anna went with her mother to Judge Rassieur’s office. At the request of her mother she made the appointment with him for that occasion. Aside from that service and barring her request that the testamentary annuity to' her, set forth in the will of 1892, be eliminated, she took no part in the consultation between testatrix and her counsel. As to Mary and Catherine, there is not a shred of evidence they or either of them at any time took part .in the concoction of any one of the series of wills. The case is barren, as said, of any testimony showing testatrix was not competent to transact her business affairs. So far as shown she did transact' them with sense and discretion.. She had her property and the objects of her bounty in mind, collected her rents, made investments of her money, and came down to the grave sane.

There is no proof worthy of the name that the will was the result of undue influence on the part of Anna or any of the other devisees brought to bear upon the mother at other times, unless the admissions of the mother to he presently considered he tahen as such proof. True, Anna may have had influence in causing the bequest in her favor in the 1892 will to be left out of the last, but it can scarcely be said to have been undue. When Mary and Catherine married and left home, Anna continued to reside with her mother. She was a stenographer, held a position as such and her wages, over and above what was necessary to clothe her, it seems went into the family chest. They kept house in a flat to themselves. We see no word of evidence tending to show that the relations between these two made Anna anything but the loving and daughterly, handmaiden of the mother. And, as pointed out, there was no charge in the petition or proof offered tending to show that either Anna, or any of testatrix’s other daughters, stood in such fiduciary relation to her as would throw upon them, or any of them, the burden of explaining the provisions of the will, or raise a presumption that it was produced by their undue influence.

The rule of law, therefore, announced in Mowry v. Norman, 204 Mo. 173, and cases cited, to the effect that one who is shown to have had the mastery over the mind and business'of a testator by standing in the relation of a physician, attorney, guardian, or other like relation of confidence, and who acquires an advantage in a will, labors under the burden of rebutting the presumption that undue influence was exercised in procuring that advantage, cannot be applied to the facts of this case.

Plaintiff took the stand in her own behalf and brought forward a witness, George Reuter. Her own evidence tended to show that at about the time of the death of her father she was sent for and made her peace with him and her mother — whether that peace included her husband is dark. That for some years she was in good circumstances, but had met with misfortune. As tending to show undue influence, she was permitted to give in detail several conversations with testatrix at' uncertain times — some of them, we infer, while the will of 1888 was still operative, some of them during the life of the will of 1892 and some of them subsequent to the will of 1903. George Reuter also had conversations with testatrix. It will not be necessary to swell the opinion with the details of them. What was material in them was said at times when no one of the principal beneficiaries was present. As strongly stated as possible, the substance of it all was that the mother had a kindly testamentary disposition towards Bridget. That she recognized her faithful services in the days before the breach of their family relations. That it was her heart’s desire to treat her in her will as she did her other daughters, but that she was in bonds on account of their opposition and could not do as she wanted to do without exposing herself to bother and unhappiness.

It may be admitted that if these statements of the testatrix are to be taken as probative proof of the exercise of undue influence — as tending to show the will of 1903 was not the mother’s will but the will of the daughters — then there was a case to go to the jury. On the other hand, if under all the facts of this case such statements and admissions by the testatrix, standing alone, do not constitute proof of the existence of the fact of undue influence, then there was no case to go to the jury.

As a preliminary observation, we can not too often remind ourselves of what was said, as an admonition, in the Schierbaum case by Valliant, J. (157 Mo. l. c. 16), speaking of rules relating to the admission of the statements of a testator, viz.: “These rules of evidence are not established by mere arbitrary law, nor are they designed to restrict the legitimate range of inquiry in the trials of disputed facts. But on the contrary they are made in the interest of justice, and experience demonstrates their wisdom. In a heated conflict where enmity often supplements interest the aptitude to misunderstand and even the temptation to misrepresent is not infrequently apparent. Even when a rehearsal of a conversation is admissible in evidence the courts are fond of saying that little weight is given to what dead men are said to have said.”

In some cases the question has come up on statements made subsequent to the will, but this is not so in all, and it is difficult to say, on principle, that á rule on the admission of statements of a testator faces one way on subsequent statements and the other way on prior statements. The leading case in this court (Gibson v. Gibson, 24 Mo. 227) was written by Judge Leonard. In that case he reviewed eases where the statements were made after the execution of the will and made “about the time” of its execution. In the exposition of the matter, he comments, as follows:

“We all know that when men who have made their wills, or are about to make them, are questioned by ex-pectants, or the friends of expectants, or when such men, without being questioned, think proper to talk upon the subject, they do not always hold themselves bound to tell the whole truth. It is said to be something like the privilege of voting by ballot — concealment is here permitted, and deception is sometimes practiced. A testator may have reasons to wish for quiet, and when disappointments are to happen, the law puts it in his power to escape from the effects of them, and to avoid taking a part in the scuffles that are to ensue about dividing his property. And even men, who do not care about concealment, may often really intend to make a will in a particular way, or to alter one already made, and after declaring such intentions may change their minds. Hence it is that even those judges, who have thought the evidence admissible, have • admitted that it is entitled to very little weight. ’ ’

To sum it up, he held that such statements were admissible, “When the condition of the testator’s mind is the point of contention, or it becomes material to show the state of his affections, and they are then received as external manifestations of his mental condition, and not as evidence of the truth of the facts he states.” He recognized that when such statements are part of the transaction — the genesis of the will, the res gestae — they are admissible as verbal acts, and finally announced the views of this court to be as follows :

“The just result of the whole matter, we think, is, that these declarations, so far as they are relied upon to furnish evidence of the facts they contain, are mere hearsay, and that there is no ground, either of authority or reason, to exempt them from the rule of law excluding all such testimony. We repeat, however, what we have before remarked, that as mere verbal facts, external manifestations of what is passing within, they are always evidence of the testator’s intellect and affections for the time being, provided they are of such a character, either by themselves or in conjunction with other evidence, and are so connected with the making of the will in point of time, as. to furnish any reasonable ground of judgment in reference to the testator’s mental condition at that time.”

In Cawthorn v. Haynes, 24 Mo. 236, the very next case decided, this court spoke through the same judge. In that case there was an offer to prove that the teetator 011 various occasions before tlie date of the will, and afterwards up to tlie time of Ms death, made certain statements deemed by contestants advantageous to them, and on the authority of Gibson v. Gibson, supra, it was held that such statements alone and unsupported by other facts do- not furnish any legal evidence of undue influence and are not admissible in evidence to prove the -fact. In Tingley v. Cowgill, 48 Mo. 291, Wagner., J., construed the Gibson case as deciding that the statements of testator made before the execution of the will, and standing alone, were inadmissible to prove the fact of undue influence. The Gibson case, never cited without approval, was followed in Spoonemore v. Cables, 66 Mo. 579; in Rule v. Maupin, 84 Mo. 587; in Bush v. Bush, 87 Mo. l. c. 485; in McFadin v. Catron, 120 Mo. l. c. 266; in Schierbaum v. Schemme, 157 Mo. l. c. 16; in Crowson v. Crowson, 172 Mo. 702, and in Seibert v. Hatcher, 205 Mo. supra.

The doctrine of these cases is that where there is a charge of mental incompetency to make a will statements made by testator are competent; further, that where such statements are made at the time of making the will they become part of the res gestae and admissible ; and that where there is an issue upon the state of the affections of the testator they may be admitted on that point, but they are not to be received or taken as proof of the truth of facts narrated.

If, therefore, we concede the admissions of the testatrix were to the effect stated, viz., that she was constrained by her other daughters to disinherit Bridget, and that they were exerting an undue influence upon her to that end, yet those statements are not to be taken as true for the purpose of establishing the undue’influence and defeating the will; and such is the office assigned them by plaintiff’s counsel and assigned to them by the trial judge in setting the verdict aside.

Undue influence need not he shown by direct evidertce. It may be. shown indirectly and arise as a natural inference from other facts in the case. It must not rest on mere opportunity to influence, or on mere suspicion. There must be somewhere proof of undue influence itself either in fact or presumptively. To be effective, it ought to be sufficient to destroy the free agency of the deceased at the time of making the will. It must not be merely the influence of natural affection; for affection is a stream that presumably flows at all times and its waters are under no ban known to the law. There must be present and in active exercise overpersuasion, coercion or force, fraud or deception, breaking the will power of the testator. [Myers v. Hauger, 98 Mo. 433; Doherty v. Gilmore, 136 Mo. 414; Schierbaum v. Schemme, supra; Tibbe v. Kamp, 154 Mo. l. c. 579; Wood v. Carpenter, supra; Crowson v. Crowson, supra; McFadin v. Catron, 120 Mo. l. c. 275.]

The facts of this case do not bring it within the established rules and we conclude the court erred in setting the verdict aside on the grounds announced and, allowing full force to the doctrine that there is a discretion lodged in the trial judge in granting a new trial, yet that discretion is a judicial discretion and must be reasonably exercised.

The order granting a new trial is set aside and this case is reversed and remanded with directions to the court below to reinstate the verdict and enter a judgment probating the will of Mary McLaughlin in solemn form.

All concur.