text:
    THERESA ALTHOFF v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    May 14, 1907.
    1. NEGLIGENCE: Release: Rescission. No difference in the law of accord and satisfaction, as applied to ordinary contracts and as applied to settlements of a cause of action in a personal injury case, is made by section 654, Revised Statutes 1899. In either case, the plaintiff must rescind the contract or settlement within a reasonable time after discovering the fraud, and before the institution of the suit.
    2. -: -: -: Reasonable Time. What is a reasonable time in which to rescind a release or settlement of plaintiff’s claim against a street railway company for the negligent killing of her husband, is for the jury to determine. The court cannot declare, as a matter of law, what would be a reasonable time, in any given case, in which to tender back the money given in release.
    3. -: -: -: - — : Waiver. By failure to ask an instruction on the subject of reasonable time, the Question of whether or not the contract of settlement was timely rescinded, is waived.
    4. OMITTED INSTRUCTION: How Preserved for Appeal. Appellant’s refused instruction which was omitted from the bill of exceptions, cannot be preserved for consideration on appeal by being printed in the abstract in connection with the circuit clerk’s indorsement thereon to the effect that it was offered, refused, and filed at the time. The bill of exceptions imports verity, and such an instruction' can be considered only when made a part of the bill, and if it has been omitted therefrom it should be added thereto by a nunc pro tunc order in the trial court amending the bill.
    Appeal from St. Louis City Circuit Court. — Eon. Warwick Hough, Judge.

      Affirmed.

      Glendy B. Arnold for appellant; Boyle & Priest of counsel.
    The demurrer to the evidence should have been sustained. In an action at law if a plaintiff has received money from defendant and which is intended by defendant as a consideration for a release of the cause of action sued on, it is a prerequisite to plaintiff’s right to sue that promptly on discovery of the fraud he return or offer to return the defendant the money thus received. Stewart v. Sector, 1 Mo. 361; Jarrett v. Morton, 44 Mo. 276; Estes v. Eeynolds, 75 Mo. 563; Taylor v. Short, 107 Mo. 384; Eobinson v. Siple, 129 Mo. 208; Oeh v. Eailroad, 130 Mo. 27; Carson v. Smith, 133 Mo. 614; Schultz v. Christman, 6 Mo. App. 338; Cahn v. Eeid, 18 Mo. App. 115; Poe v. Stockton, 39 Mo. App. 550; Alexander v. Eailroad, 54 Mo. App. 66; Eetzer v. Dold Packing Co., 58 Mo. App. 264; Banking Co. v. Insurance Co., 75 Mo. App. 310; Smith v. Hander, 85 Mo. App. 33; Lomax v. Eailroad, 95 S. W. 945; Eobertson v. Fuller Constr. Co., 115 Mo. App. 456; Cleary v. Electric Light Co., 19 N. Y. S. 951; Insurance Co. v. Howard, 111 Ind. 544; Gould v. Bank, 86 N. Y. 75; Vandervelden v. Eailroad, 61 Fed. 51; Hill v. Eailroad, 113 Fed. 914; Levister v. Eailroad, 35 S. E. 207; Eailroad v. McElroy, 37 S. "W. 844.

      A. B. Taylor for respondent.
    (1) Under section 654, Eevised Statutes 1899, appellant’s contention is put at rest. (2) Under the statute there was no necessity to tender back the $20 either before or after the institution of the suit, though the evidence shows that the tender was made, both before and after the suit was begun, and refused. The statute contemplates that such a plea shall only be met when presented, that it is not necessary to anticipate such a defense, if in fact it is a false one, for the law allows even to a tortfeasor the presumption that he will not undertake to consummate a fraud which he has attempted — allows even to the wicked a locus penitentiae. (3) As to the contention that plaintiff did not tender hack the $20 promptly, we answer that she was stricken for many months; that as soon as she was able to do so, she employed counsel, gave him money to tender back. One witness says it was tendered back, brought two suits before this, and when bringing this went to the office before bringing this suit to tender it back, and returned the next day and tendered it back.. This was all done in less than one year after contact with the negligent management of appellant’s cars. She deserves credit, if stricken as the record shows, for her promptitude in trying to assert her rights.
   FOX, P. J.

This was a suit instituted in the circuit court of the city of St. Louis, seeking to recover damages for personal injuries sustained by the plaintiff, through the negligence of the defendant, by permitting a collision to occur between two of its cars, upon one of which she was a passenger, and thereby permanently injured her.

The answer was a general denial and a plea of release and discharge executed by plaintiff, by which, in consideration of twenty dollars paid her, she discharged defendant of all liability on account of said injuries.

The reply admitted the execution of the release and further stated that at the time she signed the alleged contract of release she was incapable of mind and memory to understand its nature and contents or to contract, and that said release was not her act and deed. The reply also alleged deception and fraud practiced upon her by the agent of defendant in the procurement of said release; and that she had tendered back to defendant the twenty dollars paid her as the consideration of her signing the release before the institution of this suit, which was duly verified.

We deem it unnecessary to set out in detail the testimony developed at the trial; it is sufficient to enable us to determine the one legal proposition disclosed by the record, to state merely what the evidence tended to prove.

Upon the trial had before the court and jury the plaintiff introduced evidence tending to prove all the allegations of the petition. The defendant then introduced evidence tending to support its answer, and in rebuttal the plaintiff adduced evidence tending to sustain the reply. At the close of plaintiff’s evidence in chief defendant offered a demurrer thereto, and renewed same at the close of all the evidence in the case, both of which were by the court refused, and exceptions were duly saved. The court then, without objections, gave appropriate instructions for both plaintiff and defendant, submitting the issues made by the pleadings to the jury. The jury found for the plaintiff and assessed her damages at the sum of $3,480, after deducting the twenty dollars paid her for the release.

Defendant in due time filed its motions for a new trial and in arrest of judgment, which were by the court overruled, and defendant duly excepted and has appealed the same to this court.

OPINION.

I.

This cause comes to this court because a constitutional question was involved, but as it has not been urged here we will disregard it and pass to the only other point made in the case.

II.

The defendant complains of the action of the court in refusing to give its demurrer to the plaintiff’s evidence, and assigns as the reason thereof, that when in an action at law, the plaintiff has received money from and which is intended by defendant as a consideration for a release of the cause of action sued on, it is a prerequisite to plaintiff’s right to sue, that promptly on discovery of the fraud, she return or offer to return to defendant the money so received. In discussing this question Judge Bliss clearly stated the rule in this language: “But the plaintiff finds the note less than he expected and complains that he is deceived. And what does he do. Does he at once, upon discovery of the deception, look up the defendant and repudiate the settlement?. Not at all. But he holds on to the price of the settlement, collects the note, pockets its proceeds, and still treats the claim as never having been adjusted. This the law will never permit. If the plaintiff would repudiate the settlement, he must put the other party in the same condition he was before it was made. He cannot appropriate its benefit and deny its obligations. There never was but one doctrine upon this subject; and the books are full of decisions that if a party would rescind a contract for fraud or other cause, he must, as far as in his power, put the other party in the condition he would have been in had the contract not been made. Before commencing proceedings on his original claim, the plaintiff should tender back the note he received of defendant — should have repudiated the settlement — and then he would have been at liberty to impeach it if set up against his claim.” [Jarrett v. Morton, 44 Mo. 275-6.]

The repudiation of the contract and the tender back of the consideration- received in settlement of the claim, must be made within a reasonable time after the discovery of the fraud. [See, also, Estes v. Reynolds, 75 Mo. 563; Taylor v. Short, 107 Mo. 384; Robinson v. Siple, 129 Mo. 208; Och v. Railroad, 130 Mo. 27; Carson v. Smith, 133 Mo. l. c. 614.]

Plaintiff attempts to draw a distinction between the application of this rule to the rescission of ordinary contracts and those contemplated in section 654, Revised Statutes 1899. We are unable to concur in this view of the learned counsel for plaintiff. Prior to the enactment of that section of the statute, such a release and discharge had to be set aside by a court of equity in a separate proceeding upon the ground of fraud, before commencing proceedings upon the original cause of action. [Och v. Railroad, 130 Mo. 27.]

It was not the purpose of the Legislature, by the enactment of that section, to change the law of accord and satisfaction, and the rules governing the rescission of contracts of settlements upon the grounds of fraud, but the clear intention was to avoid a multiplicity of suits, by authorizing the fraud issue to be tried by the jury at the same time and in the same case involving the original cause of action. But we are unable to see in what manner that rule can benefit the defendant in this case. The reply pleads the repudiation of the contract of settlement and a tender of the twenty dollars bach to defendant before the institution of this suit, and the evidence shows that prior to its institution, and in fact prior to the institution of the former suit, she tendered defendant the twenty dollars paid her by it. Two or three witnesses testified that those tenders were made and there was no evidence introduced to the contrary. The court cannot declare as a matter of law, in any given case, what would, be a reasonable time within which to make the tender. That is a question of fact for the jury to determine according to the facts and circumstances of each case, under the guidance of proper instructions to be given by the court. The record in this cause nowhere shows that any such instruetion was asked' or given by tbe court, and there is therefore no such question presented here for our consideration. By failing to ask such an instruction the reasonableness of the time in which the tender in this case was made, was waived by defendant, and consequently the jury was not required to pass upon that fact.

m.

On page 101 of the abstract of record filed in this cause, which is a part of the bill of exceptions, there is attached a printed sheet of paper headed, “Defendant’s Refused Instruction.”. Then follows what purports to be an instruction asked by defendant and refused by the court. Then following that instruction is the following statement: “The foregoing instruction was inadvertently omitted from the bill of exceptions, but in order to prove that it was requested by defendant we print the following endorsement by the clerk on the back of the instruction, to-wit:

“26457 1
Althoff v. Transit Co.
Instructions refused.
Filed March 9,1904.
“Wm H. Hauschtji/te, Clerk.”

Also on the margin of the instruction in the handwriting of the court is the following: “Refused. H.”

The bill of exceptions, after proper authentication and filing, constitutes a part of the record in the case, and carries with it absolute verity, and it cannot be changed or amended', added to or taken from in the way as herein suggested. Such changes can only be made by proper nunc pm tunc entries in the trial court based upon sufficient memoranda to authorize the court to make such entries correcting the record. [Ross v. Railroad, 141 Mo. l. c. 395 ; State v. Gartrell, 171 Mo. l. c. 504; State v. Libby, 203 Mo. 596.]

We have fully indicated our views upon the only legal proposition disclosed.in the brief of counsel, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    IRENA MOWRY and MARY KETTERING, Appellants, v. MARION NORMAN.
    Division One,
    May 29, 1907.
    1. WILL: Contest: Question for Jury. Yhere there is substantial, evidence to support either of the grounds stated in the petition for contesting the will, the issue becomes one for the determination of the jury, and not one to be determined by a peremptory instruction.
    2. -: Undue Influence: Burden: Presumption. If the contestants of the will show á state of facts which establish a fiduciary relation, or some such similar confidential relation, between the contestee, a principal beneficiary, and the testator, then the burden shifts to the contestee on the question of undue influence. Not only so, but that relation being established, the law indulges the presumption that undue influence was used.
    3. -: -: -: -: The Evidence. An old man, feeble in body and mind, worth $16,000 in real estate, having a wife, two daughters and a son, was not in the actual use of the property, or of a dollar, but lived with the son, who as agent or assumed guardian managed all his property, gave him what food and clothes he had to have, provided and paid for his physician, even purchased his tobacco, and in all things treated him as a child. By the will he gave all his property to this son, requiring him to care for his wife during her life. Held, that these facts were sufficient to show the confidential relation, and to cast the burden on the son to show that the will was not the result of undue influence, and the court was not authorized, upon that showing, to tafee the case from the jury. And although, defendant may offer testimony to rebut the presumption, still the credibility of that testimony is for the jury.
    4. -: -: Suspicious Words. The use of the words “being of sound mind and free from all undue influences” in the opening paragraph of the will, is enough to cast suspicion on the will.
    5. -: -: Evidence. The will of an old, feeble and pliable man, which gave all his property to the son with whom he lived, was executed while his old and fond wife was absent from the State on a visit, and without the knowledge of his daughters, with whom his relations were friendly. It was of like tenor to a previous will, whose attesting witnesses had previously died, the last one only shortly before. The son knew of that will, but the wife never did. The will was drawn by a lawyer who practiced in magistrates’ courts and was the cashier of a bank, and was kept by him, and was not read by the son even when it was probated. The son was not present •when the will was drawn, and never inquired about it, although he testified his father had said he would will him the property if he would care for him and his wife. It contained a recital that the testator was “free from all undue influences.” Held, that all these things, when taken in connection with the fact that the son was a determined man, worth $30,000 in his own right, and the further fact that he had complete control of testator’s property and had had for years, and gave to testator only such things as he chose to give him, were evidence of undue influence on the part of the son.
    6. -: -: Character of Proof. Undue influence need not be proven by direct and positive evidence, but it may be inferred from or shown by the facts and circumstances in evidence.
    7. -:-: Exercised at the Time. Nor is it necessary that the overt acts of undue influence should have been exercised at the exact time of the execution of the will, but it is sufficient to show that such influence over the mind of the testator had been acquired previously and did operate at the time the will was made.
    Appeal from Nodaway Circuit Court. — How. Wm. C. Ellison, Judge.
    Reversed and remanded.

      J. B. Newman- and John, Kennish for appellants.
    (1) The harden of proving that testator was of sound mind, that is, of testamentary capacity, is on proponent of the will, throughout the trial. Norton v. Paxton, 110 Mo. 462; J ones v. Roberts, 37 Mo. App. 173. If there is any substantial evidence, direct or inferential, that testator was not of testamentary capacity, or that the pretended will was the result of undue influence, the case must go to the jury. Knapp v. Hanley, 108 Mo. App. 360; Charles v. Patch, 87 Mo. 463. (2) In this case there existed a close confidential relation between testator and the proponent, and the law “indulges the presumption that undue influence has been used.” Campbell v. Carlisle, 162 Mo: 644; Hegney v. Head, 126 Mo. 627; Bradford v. Blossom, 190 Mo. 143; Roberts v. Bartlett, 190 Mo. 702; Dausman v. Rankin, 189 Mo: 708. One who has charge or general management of a testator’s affairs, stands in a close and confidential relation to such testator, the same as an attorney, etc. 2 White & Tudor’s Leading Cases in Equity, pt. II, p. 1187. The burden being on proponent by reason of the close confidential relation, he has the further burden of making an explanation of the unequal and unnatural provisions of the will. Maddox v. Maddox, 114 Mo. 49; Gay v. Gillilan, 92 Mo. 264: (3) In this ease it was the province of the jury, under all the facts and circumstances in evidence, to pass upon the question of undue influence — as to whether the presumption of undue influence was removed by the evidence on the part of the respondent. King v. Gilson, 191 Mo. 327. The Supreme Court will not weigh evidence in a law case. Harrison v. Lakenan, 189 Mo. 609. Whether any witness in the case testified to the truth is a question for the jury. James v. Life Ass’n, 148 Mo. 15. ‘ ‘It is an invasion of the province of the jury for the court to direct them that they must accept as true and act upon the evidence of witnesses. ” Dawson v. Wombles, 111 Mo. App. 540.

      W.W. Ramsay, and L. G: Cook for respondent.
    (1) When the proponent made a prima-facie case by the examination of the attesting witnesses, and the introduction of the will in evidence, the burden of proof to sustain intestacy devolved upon contestants, and remained there until the close of the case; and unless they introduced, substantial evidence, sustaining the charges that the will was not executed according to law, and that decedent was mentally incompetent to make a will, and that the will, was the product of undue influence exercised by proponent, or at least to sustain one of these charges, then the peremptory instructions given by the court were correct. Riggin v. Westminster College, 160 Mo. 570; Crowson v. Crowson, 172 Mo. 691; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Carl v. Cable, 120 Mo. 283; Mc-Fadin v. Catron, 138 Mo. 197; Fulbright v. Perry County, 145 Mo. 432; Sehr v. Lindeman, 153' Mo. 276; Tibbe v. Kamp, 154 Mo. 545; Lorts v. Wash, 175 Mo. 487; Schierbaum v. Schemme, 157 Mo. 1; Hughes v. Rader, 183 Mo. 704. (2) With the presumption in favor of testamentary capacity, there was no substantial evidence of want of such capacity, at the time of making the will, which would justify the court in allowing the case to go to the jury on that issue. Sehr v. Lindeman, 153 Mo. 203; Campbell v. Carlisle, 162 Mo. 634; Maddox v. Maddox, 114 Mo. 46; Crowson v. Crowson, 172 Mo. 691; Von de Veld v. Judy, 143 Mo. 637; South-worth v. Southworth, 173 Mo. 59; Crossan v. Crossan, 169 Mo. 161; Benoist v. Murrin, 58 Mo. 307; Cutlar v. Zollinger, 117 Mo. 101; Farmer v. Farmer, 129 Mo. 538; Hamon v. Hamon, 180 Mo. 685; Catholic University v. O’Brien, 181 Mo. 68. Nor did the fact that Wesley Norman during the last years of his life, and especially during Ms last sickness, six years after the execution of the will, forget and miscall the name of his grandson, throw any light upon his mental condition at the time the will was written. Hamon v. Hamon, 180 Mo. 698; Yan Alst v. Hunter, 5 Johns. Ch. 248. Nor will the court attach significance to the fact that testator was reticent concerning the execution of the will, and never mentioned it to contestants, or to his wife. Gibson v. Gibson, 24 Mo. 233; Sehr v. Lindeman, 153 Mo. 292; Cawthorn v. Haynes, 24 Mo. 238. (3) There was no substantial evidence tending to show undue influence. There is no fact or circumstance, act or word, done or said- by proponent, or anyone else for him or in his presence, which supports or tends to support the charge of undue influence upon his part. Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Jackson v. Hardin, 83 Mo. 185; Doherty v. Gilmore, 136 Mo. 414; Carl v. Gable, 120' Mo-. 283; Cash v. Lust, 142 Mo. 630; Aylward v. Briggs, 145 Mo. 604; Messmer v. Elliot, 184 Pa. St. -41; Sehr v. Lindeman, 153 Mo. 276. Such contractual relations as existed between proponent and his father in this case, instead of being fiduciary in their nature, and looked upon with suspicion and distrust, as appellants contend, are highly proper and trustworthy, and have been upheld and sustained by courts of equity in this State in the following cases: Halsa v. Halsa, 8 Mo. 303; Wright v. Tinsley, 30 Mo. 380; Gupton v. Gupton, 47 Mo. 37; Sutton v. Heydon, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Healy v. Simpson, 113 Mo. 340; Teats v. Flanders, 118 Mo. 660; Brownlee v. Fenwick, 103 Mo. 420; Sitton v. Shipp, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Taylor v. Bonshrader, 107 Mo. 206; Yeth v. Garth, 92 Mo. 97; Hager v. Hager, 71 Mo. 610; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214; Anderson v. Shockley, 82 Mo. 250; Nowack v. Bergér, 133 Mo. 24; Anderson v. Scott, 94 Mo. 637; Hubbard v. Hubbard, 140 Mo. 300 ; Goodin v. Goodin, 172 Mo. 40; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 566; McElvain v. McElvain, 171 Mo. 244; McKee v. Higbee, 180 Mo. 263; Lynn v. Hockaday, 162 Mo. Ill; Asbury v. Hicklin, 181 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Johnson v. Quarles, 46 Mo. 427; Brevator v. Creech, 186 Mo. 558; Rosenwald v. Middlebrook, 188 Mo. 58; Russell v. Sharp, 91 S. W. 134.
   GRAVES, J.

Action in the Nodaway Circuit Court contesting the will of Wesley Norman, who died in Nodaway county, Missouri, April 25, 1904, aged seventy-nine years, leaving surviving him, a widow, aged about eighty years, and three children, two daughters, Irena Mowry and Mary Kettering, the plaintiffs in this action, and one son, Marion Norman, the defendant.

The property of Wesley Norman chiefly consisted of a farm of two hundred acres of the value of sixteen thousand dollars. Grounds of contest as alleged in the petition are mental incapacity and undue influence. Upon the close of the whole case, the trial court gave a peremptory instruction to the jury to find that the paper writing offered in evidence was the last will and testament of Wesley Norman, deceased. Verdict in accordance with said instruction, upon which verdict .in appropriate terms judgment .was entered. Perfecting their record by an unsuccessful motion for a new trial, the plaintiffs duly appealed to this court.

Under these circumstances a close review of the evidence for plaintiff will be required, for if they have substantial evidence upon either ground, it was a question for the jury and not the court. The will, omitting the description of the real estate therein contained, is as follows:

“Be it remembered, that I, Wesley Norman, of the county of Nodaway, in the State of Missouri, being of sound mind and free from all undue influences, hereby • revoking all former wills by me made, do make this my last will and testament in manner following, that is to say: I give, bequeath and devise my estate and property, real and personal as follows:
“First. I give and bequeath to my oldest daughter, Irena Mowry, the sum of one dollar.
‘ ‘ Second. I give and bequeath to my second daughter, Mary Kettering, the sum of one dollar.
“Third. I give, bequeath and devise to my only living son, Marion Norman, all the residue of my.property of all kinds whatsoever, together with my real estate, described as follows, to-wit: [Description omitted], with this provision, that my aforesaid son, Marion Norman, is to take proper care and provide for my beloved wife, Mary Norman, her natural lifetime, should she survive me.
“Fifth. I hereby appoint and constitute my son, Marion Norman, the only and sole executor of this my last will and testament, without bond.
“In witness whereof, I have hereunto sighed and sealed this instrument and published the .same as and for my last will in said county of Nodaway and State of Missouri, on this 15th day of September, 1898. ”

By A. B. Talbott and C. H. Talbott, the two subscribing witnesses, the defendant made out the primafacie case, introduced the will and rested. From these witnesses it appears that it took three hours to produce the instrument in its present form — from nine a. m. until about noon. It also appears that C. H. Talbott, who drafted the will, practiced law in the justices’ courts and had been cashier of a bank for several years, and he testified that the will was written by him without a form book; that after it was' executed it was given to Mm to keep, and he kept it until after the death of the testator; that he then notified Marion Norman that he had the will, but did not tell the wife or any other member of the family, although they were where he could have told them; that he never told Marion the contents of the will, but that when he told Marion that he had the will, he, Marion, said: “I hope he left the girls at least five hundred dollars each.” That he went to Maryville with Marion to probate the will and that Marion did not then even read the will or ask its contents.

Upon the part of plaintiffs by their evidence in chief and cross-examination of defendant’s- witnesses it was shown that the testator, up to about the .year 1880, resided in Illinois; that he had a farm there of about one hundred and twenty acres, which was bought largely upon credit, and was paid for by the joint efforts of testator and his father-in-law; that the two plaintiffs being older than the defendant, worked on the farm, in the field with their father, up to the time of their respective marriages which occurred when they had reached about the age of nineteen or twenty years; that he gave these daughters a few things, but exceedingly trivial in amount; that the Illinois farm was paid for before the defendant reached an age to be of any particular service upon the farm; that in or about 1880, testator sent the defendant to Missouri to look for a farm; that while here, visiting one of his sisters, then living in Nodaway county, he purchased the farm in dispute for his father, paying $26.50 per acre therefor; that some years prior to this, while yet in Illinois, the testator had fallen and sustained serious injury to his back; that for a long time he was unable to work and Mr. and Mrs. Kettering stayed with them; that the testator had in cash five thousand five hundred dollars from the sale of the farm and his stock in Illinois; that for four or five years after he came to Missouri, in the spring of 1881, he assumed control over the farm, hut defendant and his wife were there, living with testator and wife; that thereafter the defendant assumed and had absolute control of the farm and all the property thereon, and managed the same; that defendant was a strong-willed man and one who would not permit opposition; that testator was a mild-tempered old gentleman, and seemed to obviate discussions with defendant by walking away, when they had differences of opinion; that as a rule testator and defendant seemed to get along together well; that testator was fond of his daughters, the plaintiffs, and of his grandchildren; that there had been no difference between them; that the plaintiffs, in 1898, the date of the will, were in very moderate circumstances financially, whilst defendant was worth in the neighborhood of thirty thousand dollars in lands and property, although he started with but fifty dollars in 1881; that after he assumed and took charge of the farm, all rents and products therefrom were appropriated by defendant, as well as four hundred dollars out of four hundred and nineteen dollars which the testator got from his father’s estate; that at the time of his death the testator had no personal property whatever, but only had the farm of two hundred acres, which was fully paid for in the spring of 1881, when he came to it; that the testator and wife got along like two children and he was fond of her.

It further appears that the testator said at one time that he had made a will leaving the property to his wife. For the defendant it appears that there had been a previous will, written by one Morton and witnessed by said Morton and one Taylor, both of whom were dead at the time the will in question was made, and that the will in question contained the same bequests as the will written hy Morton, and as to bequests was copied therefrom.

Upon the relationship of testator and defendant, it appears that he and his wife lived with defendant’s family upon the farm; that defendant for some years prior to the making of the will had the absolute management of the farm and everything thereon; that testator had no money of his own; that his clothes, such as he had, were purchased for him hy defendant; that his doctor’s bills were paid by defendant; that all the necessaries of life were furnished by defendant; that even his tobacco was bought for him by defendant.

Upon the question of mental incapacity, the evidence is not very strong, but shows the following facts: Mrs. Norman, the widow, who renounced the will and elected to take a child’s part, says that about a year before the death of testator, she said to him, “I understood you made a will,” and he said, “Mother, if I made a will, I have no recollection of it whatever.” That she then said, “Grandpa, don’t you recollect anything about it,” and that he replied, “No, I don’t,” and as to a part of this same conversation, the language of the witness is thus:

“Q. Did you say anything further. A. That is all he said about it. I says to him — I says, 'What is is going to come of me if you drop off before I do?’ He says, 'Well, I reckon you have got plenty here to live on.’ I says, ‘I know there is plenty here, but that is not the thing. I don’t know whether I will get any of it or not.’ He says, 'You know very well that you will get what belongs to you. ’
“Q. Did he say anything further? A. He told me — he says, 'Mother,’ he says, 'Marion had lots here, and he bought lots of land, and,’ he said, 'I would like to have our land divided up equally among the children.’ I says, 'I don’t know anything about that.’
“Q. Did he object to — state what his affections were, or Ms feelings were, towards Ms girls, up to the time of his death. A. He always liked his children. He never had nothing again his children. As long as he lived when they would come to see him, he would say, ‘ Grirls, you must come to see me whenever you can. ’ That oldest girl came there and stayed .three weeks during his last sickness and waited on him.
“Q. What was the youngest girl called? A. Pet.
“Q. Pet? A. She was always called that because my father called her that. She was a little bit of a fat girl, and he always called her Pet and she went by that name.
“Q. Did he say anything to you about having trouble. A. No, sir; only he said, ‘Mother, there is going to be trouble. ’ I says, ‘ Why ? ’ He says, ‘ Marion will want it all. ’ ’ ’

From this witness, it is further shown that at the time she left for Iowa, in September, 1898, the time the will is claimed to have been made, her husband was not very stout; that he could not work to do any good; that he was under treatment by a doctor for kidney trouble; that prior to leaving Illinois he had a fall which hurt his back; that as a result he could not walk for over four months; that before this accident he always went to church, but afterward he never went; that ever after this fall he complained of pains in the head, which would “go clear down;” that he always complained' of his back, and always wore a plaster thereon; that whenever they played the organ at the house he would go out of doors; that he said he couldn’t stand it and that it seemed like it went whirling around and around in his head and that he couldn’t stand it.

And about his mental condition, about the date of the will in 1898, this also appears:

Mrs. Mowry: “Q. About 1898, what was the condition of his health, in your judgment? Did you see him about that time? A. Tes, sir.
“Q. Do you remember the time of the Omaha exposition? A. Yes, sir, I do.
“Q. About that September? A. Yes, sir.
“Q. State whether or not you accompanied your mother to Iowa at that time. A. Yes, sir. I accompanied my mother to Iowa at that time.
“Q. About what was the condition of your father, ■ mentally and physically, at that time? A. Well, father wasn’t very stout at that time.
“Q. State whether or not you had noticed any change in him up- to that time, from years before? A. Yes, sir. I could notice a change in him from years before.
“Q. How was his memory? A. Well, his mem- • ory wasn’t so good.”
Mrs. Kettering: “Q. State if you noticed any change in your father’s mental condition from the time you first knew him to his death, and if so, what the change was and what time the change come? A. Well, of course my father was quite an old man, and, as you have heard before, he had a fall, since that time, he has always been failing. Every year since, we have always noticed father failed. For a great many years, father has had a very poor mind.
“Q. What? A. A very weak mind. You would be talking on a subject, and he would start onto something else, and we would say, ‘Father, we wasn’t speaking of that,’ and we would tell what he was talking about and start to talk about something else, and I think from that, his mind wasn’t very strong.
“Q. How long has he been in that condition of mind? A. For a good many years, Mr. Kennish.
“Q. Would you state about how many years. A. I don’t know that I can. Of course such things happen and we don’t really keep count of it.
“Q. You may state about how many years back his mind was in that condition you have described to the jury? A. I should think ten years, Mr. Kennish. . . .
“Q. Do you know anything about your father’s condition of mind the last ten years — ten years of his life, as to being forgetful? A. Yes, sir. He was forgetful. He would be talking perhaps about one thing, and he would go off on something else. He wouldn’t stay to what he was talking about.
“Q. State what was his condition in that regard, or whether he was in that condition in 1898 and 1897 ? A. Yes, sir, he was.
“Q. You might state what was his condition then as compared with his condition in Illinois, before he ever got hurt, as to his ability to do business and to understand it? A. Oh, father in Illinois, he could attend to business there; but, of course, for a great many years back here, he could not.
“Q. He could not? A. No, sir, not to my knowledge, I wouldn’t think he could. . . .
“Q. You might state what in your judgment or your opinion, from seeing your father back as far— and talking with him — in 1898 — about the time — do you remember when your mother went to' Iowa in the fall? A. Yes, sir.
“Q. You went along with her? A. Yes, sir. I went with her.
“Q. About that time, could you remember what was the condition of your father’s mind as to being forgetful or childish, or anything of that kind? A. Well, I would think it was that way.
“ Q. Well, what would you think would be his condition at that time as to being able to dispose of his property and consider the claims of his children on him — his mental condition — as to whether he was capable or not? A. Well, I don’t know about that.
“Q. How? A. I wouldn’t hardly think that he was.”

Dr. Davis, who had known testator for twenty years:

“Q. You might state, Doctor, what was the matter with him? A. Well, I don’t know about that. It was a complication of diseases. I think the trouble came from a, bad injury, though from what he said, he had what was generally supposed to be Bright’s disease or kidney trouble, and a great deal of it. . . .
“Q. You say he was a very old feeble man? A. Yes, sir.
‘ ‘ Q. Did you form any opinion of the condition of his mind during the time you were treating him? A. No, sir, I could not say that I did.
“Q. Sir? A. I could not say that I formed any opinion. I never thought anything about it.
“Q. At that time — did you, at any time, form an opinion as to the condition of the old man’s mind, as to whether or not he was— A. Well, he was in a feeble condition, physically, and mentally both, when he died, and he had been for a good while.
“Q. Were you treating him in 1898? A. I do think I did. I don’t think there was hardly six months went by that I didn’t see the old gentleman.
“Q. Well, what was his condition about that time —1898—mentally and physically? A. That would take it back how many years ?
“Q. Six years ago. A. He was a very feeble man.
“Q. Feeble minded, did you say, or what did you say?
“By Judge Ramsay, counsel for defendant: Not quite so direct.
“A. Well, I wouldn’t like to term him that way. Physically, though, he was a weak man and childish, you might term it. . I would term it childish. He was an awful good old man. He had an awful good disposition.
“Q. I wasn’t talking about his goodness. State what was your opinion of his ability at that time to realize the nature'and extent of his property? Did he do any business? A. The old man never done any business with me. ...
“Q. What was his condition about transacting business in 1898? A. I don’t know, Judge. I know he didn’t transact any business with me. That is far as I could tell.
Q. Prom your judgment of him as a physician, what would be your judgment as to his ability to transact business in his condition then? A. Well, I wouldn’t think his ability was very good, and from the fact that he never did transact any business that I ever seen, either with me or with any body else. Mr. Marion Norman seemed to ... .
“Q. And you say you don’t know and have no judgment as to his condition of realizing what he had and making a disposition of it — ability to intelligently know what he was doing with it? A. I wouldn’t like to say about that, Judge, but he was, physically, and it looked to me like he was a generally broken down old man. That is about as near as I can give it. I do know that he didn’t transact any business — not with me.”

James South, who worked on the farm for three years and was there at the time the will was prepared:

“Q. Now, you say you were down there on the place in 1898. You might state what was the condition of old Mr. Norman at that time. A. Well, it would be pretty hard to do.
“Q. It would? A. Yes.
“Q. Can you give an opinion? Do you know how his mind was, as to being able to attend to business? A. Sometimes he would be pretty lively, and other times he wouldn’t.
“Q. How was his mind as to being able to attend to his affairs, or to realize his business or his property ? A. "Well, I don’t know about that. . . .
“Q. Around on the farm, you were talking about what you were doing? A. Yes, sir, and such things as that.
“Q. Discussed with him how you should fix the fence that you were fixing and how to trim the trees when you were trimming trees? A. Yes, sir. Sometimes he would ask me what I thought was the best way and sometimes I would ask him. .That is the way we would have it; we worked along and everything went along as nice as you please.
“Q. He talked intelligently about these things, didn’t he, Mr. South? A. Not very much.
“Q. Intelligently? Did he talk intelligently? A. Well, sometimes he would, and sometimes he wouldn’t.
“Q. When wouldn’t he talk intelligently? A. Well, I couldn’t tell you when, but I would notice sometimes he would talk different from other times.”

Mrs. Ham, a near neighbor for years:

“Q. Did he say anything about his head being woolly or anything of that kind? A. He had that expression, and he had another expression that I can’t call just now to my mind, but he complained lots about his head. Oh, Grandpa had been complaining, I know, for fifteen years or more.
“Q. Well, what was his condition, now, for six or eight years, Mrs. Ham? A. Well, in my opinion, I should say — I hated to say it. I really hated to say it. I never said it to anybody, but I thought he was getting childish — what you call getting childish.’"’

Frank Kettering, who worked there in 1895 and 1896 or 1896 and 1897, says that his grandfather always knew him as Frank and called him Frank up until about the last year he worked there, and that he then called him Charlie, although he was never so called by anyone else. In this he is corroborated by Mrs. Kettering, the mother.

The above evidence was shaken to a more or less extent upon cross-examination. Such was the case of the plaintiffs. 'Defendant’s testimony, such as may be required, will be noticed in the course of the opinion.

The first material question in this case is the determination of where lies the burden of proof upon the question of undue influence. Ordinarily where no fiduciary or other similar confidential relation is shown, the burden of establishing undue influence lies with the contestants or plaintiffs in suits to set aside wills and so continues throughout the trial. Not so, as to mental capacity. Upon the question of mental capacity, the burden is upon the defendants or proponents of the will, throughout and never changes or shifts. They have the burden throughout both as to mental capacity and legal execution of the will. We have recently reviewed our late cases, in the case of Goodfellow v. Shannon, 197 Mo. l. c. 278.

So that under ordinary circumstances the burden is upon plaintiffs, throughout, to show undue influence, and upon defendants to show mental capacity and the legal execution of the will. However, if plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts. Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. [Campbell v. Carlisle, 162 Mo. l. c. 644; Hegney v. Head, 126 Mo. l. c. 627-628; Roberts v. Bartlett, 190 Mo. l. c. 702; Bradford v. Blossom, 190 Mo. l. c. 143; Dausman v. Rankin, 189 Mo. l. c. 708; Maddox v. Maddox, 114 Mo. l. c. 40.]

In the Campbell case, supra, we said: “Ordinarily, in cases of this character, the burden is upon the proponents of the will to prove its proper execution and attestation, and that the testator was twenty-one years of age or over, and of sound mind, and when these facts are shown the proponents make out a prima-facie case, and it then devolves upon those attacking the validity of the will to prove fraud or undue influence, if either is charged. [Norton v. Paxton, 110 Mo. 456; Gay v. Gillilan, 92 Mo. 250; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 283; Berberet v. Berberet, 131 Mo. 410.] But in cases where a-‘patient makes a will in' favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or- where other close, confidential relations exist, the law. indulges the presumption that undue influence has been used, and such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law, and some proof should be required besides the factum of the will before the will can be sustained. ’ [Marx v. McGlynn, 88 N. Y. 357; Hegney v. Head, 126 Mo. 619.]”

And in Maddox v. Maddox, 114 Mo. l. c. 46, the doctrine is put thus: “It is also a universally recognized rule of equity, which is applied also in analogous cases at law, that when a confidential relation is shown to exist between the testator and the recipient of his bounty, an exerted influence will be presumed to. have induced the bequest, and the onus is cast upon the beneficiaries to make explanation of the transaction and establish its reasonableness. [Gay v. Gillilan, supra; 2 Pomeroy’s Equity Jurisprudence, sec. 951.]”

The legal principle is well established, but are the facts in this case sufficient to show such a fiduciary or confidential relation, so as to raise the presumption of undue influence? We think so. If there was not absolute mental incapacity, there was great weakness of mind showing a condition which would at least he an inviting field for undue influence. Here was an old man with sixteen thousand dollars worth of property and not in actual possession or use of a penny. He lived with his son, who as agent or otherwise managed all of his property interests; gave him what food and clothes he had to have, and purchased for him the tobacco he used. He furnished and paid for his doctor. For years, as shown by the plaintiffs, the defendant looked after all matters for his father, and in effect treated him as a child, save and except there is no evidence of his having given the father any little spending money, as the indulgent parent does with the child. We think the evidence introduced by the plaintiffs was such as raised the presumption of undue influence. This, it is true, is rebutted by the testimony of defendant, to the effect that his father had told him that he would will him the farm if he would care for him and his mother. But this does not change the fact that upon the plaintiffs’ showing there was the presumption of undue influence. This presumption must be rebutted by testimony, and the credibility of that rebutting testimony is for the jury and not for the court. [Gannon v. Laclede Gas light Co., 145 Mo. 502.]

When the plaintiffs made out their prima-facie case upon the question of undue influence by showing a state of facts from which there arose a presumption of undue influence, then the defendant was required to rebut the presumption, as the defendant in the Gannon case was required to rebut the presumption of negligence. In the Gannon case, the defendant by a mass of testimony rebutted the presumption, and as against this evidence the plaintiff offered nothing, yet by a majority opinion this court held that a peremptory instruction should not be given in such case, and the doctrine there applies with force and effect to the case at bar. Tbe rule announced is that the credibility of that testimony was within the peculiar province of the jury, for its judgment thereon, although undisputed. This case has been followed many times since.

But the case at bar is much stronger. The plaintiffs do not rest solely upon the presumption, but there are at least some facts tending to show undue influence in addition. We have the peculiar circumstances of the will being executed while the testator’s old wife was absent upon a visit; a previous will of like tenor had been made, so defendant says, yet although he knew of it, not a word was breathed to his mother. The last witness to this previous will had but recently died; the inequality of the will itself; the peculiar expression in the first part thereof, to the effect, “I, Wesley Norman, . . . being of sound mind and free from all undue influences,” etc., — all these things point to a master mind, not the enfeebled mind of the decrepit testator. What testator before was ever so cautious as to proclaim to the world that he was “free from all undue influences?” To our mind, if there were not other earmarks, we have in this expression enough to cast suspicion upon this instrument, and to cast suspicion upon some of the testimony for defendant. It is true that at the time of the execution of the will, in the absence of the old and loving wife, the defendant was conspicuous for his absence. This conspicuous absence, taken with the language above quoted, may indicate something. Discussing this in the case of Bradford v. Blossom, supra, Burgess, J., said: “When Mrs. Bradford went to execute the will he took her to Mr. Thompson’s office, introduced her to him, then withdrew until the will was executed by her, when he returned, and he and Mrs. Bradford left together.. It seems somewhat strange that after Mr. Blossom took Mrs. Bradford to Mr. Thompson’s office to execute the will, he should have retired therefrom while she was executing it, and, after she had done so, return for her, unless it was to avoid any suspicion that might he occasioned by his presence when she signed the will, that she was executing the same by reason of his undue influence over her. ’ ’

In addition, the testimony of the scrivener stands disputed as to the circumstance of being called to write the will. After the death of the testator, he mentions the fact of there being a will to no one. except defendant, although the others were present at the funeral. Defendant says that he went with the scrivener to have the will probated; that he had no knowledge of this last will until told about it, yet when it was presented to the court he did not even read it or inquire as to its contents. All this is a little singular to our mind. How the credibility of such evidence would strike the intelligence of a jury we do not know.

Upon the question of mental incapacity the evidence is meager and not strong, but in our judgment there is evidence sufficient upon which to take the judgment of the jury as to the question of undue influence. Undue influence need not be proven by direct and positive testimony, but it is sufficient if it is.shown by, or can be inferred from, the facts and circumstances in evidence. [Roberts v. Bartlett, 190 Mo. l. c. 700-1; Bradford v. Blossom, 190 Mo. l. c. 139; Rood on Wills, sec. 190.]

Nor is it required that the overt acts of undue influence were exercised at the exact time of the execution of the will, but it is sufficient to show that such influence over the mind of the testator had been acquired previously and did operate at the time of making the will in the disposition of the testator’s property. [Taylor v. Wilburn, 20 Mo. 310; 1 Underhill on Wills, pp. 187-8.] Whilst the case is not as strong for plaintiffs as might be wished by them, yet in our judgment there was error in refusing to submit tbe case to tbe jury upon tbe question of undue influence. Tbe judgment will be reversed and cause remanded.

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


author: LAMM, J.

text:
    MILLER v. DOUGLAS COUNTY, Appellant.
    Division One,
    May 29, 1907.
    1. COUNTY: Liability for Medicines and Medical Attention. The county is not liable for medicines and medical attention furnished from time to time, at the request of the sheriff in some instances, and of the jailer in others and of the prosecuting attorney in still others, to prisoners confined in the county jail. When so furnished they are not furnished in pursuance to some contract with the county or with the agent of the county, and hence the county court is not authorized to pay them. But if necessary and are procured by the jailer, they might have been taxed as other costs in criminal eases.
    2. STATUTES: Priority: Revision. A statute enacted long ago but subsequently re-enacted as a revised bill after the enactment of another statute, is a later legislative expression than such other statute enacted before the revision, and in so far as they conflict the revised statute has precedence.
    Transferred from St. Louis Court of Appeals.
    Reversed.

      Fred Stewart for appellant.
    (1) Tbe demurrer to tbe evidence should bave been sustained; plaintiff bimself testified that be bad no contract in writing but relied on a verbal understanding with tbe judges of the county court when they were not in session. A county cannot be bound by this kind of contract. R. S. 1899, sec. 6759 ; Woolfolk v. Randolph Co., 83 Mo. 501; Heidelberg v. St. Francois Co., 100 Mo. 69; Crutchfield v. Warrensburg, 30 Mo. App. 456. (2) Nor is a recovery authorized under section 1800, R. S. 1899, as said section refers to manual labor and not that of a professional nature. Woolf oik v. Randolph Co., 83 Mo. 505. (3) The county is not liable for medical services furnished prisoners confined in jail on charge of felonies unless the physician is employed by the year. R. S. 1899, sec. 8134. (4) The law will not make that valid without a writing which the law requires should be in writing; from a void contract no cause of action can arise, whether of quantum meruit or one sounding in damages. Crutch-field v. Warrensburg, 30 Mo. App. 456; Schell City v. Mfg. Co., 39 Mo. App. 264.

      J. '8. Cla-rhe for respondent.
    Section 8134, Revised Statutes 1899, provides that in case any prisoner confined in the jail and in the judgment of the jailer needs a physician or medicine, said jailer shall procure the necessary medicine or medical attention, etc., or the county court in their discretion may employ a physician by the year, etc. The record in this case shows that each of these claims were approved by the sheriff, who was during all this time ex-officio jailer, and services rendered by his order, and with an understanding between the county court, the sheriff and respondent, that respondent was to so treat the prisoners by order and request of the sheriff which he did, except the man Thomas, who died at the hotel, and'who was a county charge, and not a prisoner. Respondent does not claim to have had a written contract with the county court, but outside of the above provision of the statute, if the county court knew, as they did, that there was no written employment of a physician by the year, still if they neglected to so employ one, and the prisoners needed medical attention, as in this case, the county would be liable for reasonable charges for so treating them, when called by the jailer or any other citizen. The court well knew that respondent was treating the said prisoners, and so took advantage of his professional services, and are now es-topped from the contention that they owe respondent nothing. If there was a contract, verbally, between the court and respondent and said court failed to enter same on its records, the failure so to do can not affect the rights of respondent, after he has performed his part of same, on the theory that there was no valid contract. Decker v. School District, 101 Mo. 115. •
   LAMM, J.

Plaintiff filed for allowance, and payment, in the county court of Douglas county, an itemized claim for $116.55 for medical services and drugs furnished to divers prisoners confined in the jail of that county during the year 1902. That court refused to allow and pay the claim and plaintiff appealed to the circuit court, and, on trial anew with the aid of a jury, a judgment went in his favor for eighty-three dollars. Upon due preliminary steps, defendant county appealed to the St. Louis Court of Appeals. Subsequently, on a full transcript being lodged in that court, it handed down an order transferring the cause to this court under section 12 of article 6 of the Constitution, giving this court appellate jurisdiction in cases where a, county or other political subdivision of the State is a party, and the cause came here.

Appellant’s abstract is not constructed in obedience to the rules of this court, but the case having come to us from the St. Louis Court of Appeals and the rules of that court in that behalf being somewhat different from our own, as a matter of grace we heretofore overruled a motion to dismiss the appeal and now proceed to consider the case on its merits.

Plaintiff introduced evidence tending to show that from time to time, at the request of the sheriff in some instances, and the request of the jailer in others, and of the prosecuting attorney in still others, he furnished to certain prisoners confined in the jail of Douglas county, to-wit: Weaver, Young, Riley, Hicks, Thomas and Walker, medicines and medical attendance of the reasonable value of the amount claimed. By other evidence he showed that, prior to rendering the services and furnishing the medicines sued for, he had furnished medicine and services under similar circumstances under some verbal arrangement with different members of the county court, which had been paid, and other evidence tending to show that he relied on this loose arrangement continuing to run and to cover the medicines and services in suit. It was shown there was no written contract between plaintiff and the county court. There was no evidence that plaintiff had been appointed county physician. There was evidence that the prisoners, or some of them, were confined on charges of murder, rape and other felonies. There was no evidence that the attendance upon and medicines furnished to any of these prisoners had been taxed as costs or allowed in fee bills and payment sought in that way.

At the close of the case defendant asked á peremptory instruction, which was refused, and- exceptions were saved, and error is assigned in that ruling. Other errors are assigned; but in the view we take of the record before us, it would be idle to consider them.

Should defendant’s peremptory instruction have' been given?- We think so, because:

By section 6759, Revised Statutes 1899, it is provided that: “No county . . . shall make any contract, unless the same shall be within-the scope of its powers or be expressly authorized by law; . . and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorizd by law and duly appointed and authorized in writing. ’ ’

Manifestly plaintiff could not maintain his case under the authority of that section.

By section 1800, Revised Statutes 1899', it is provided that: “If a claim against a county he for work and labor done, or material furnished in good faith by the claimant, under contract with the county authorities, or with any agent of the county lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of such work, labor and material, though such authorities or agent may not, in making such contract, have pursued the form of proceedings prescribed by law.”

Said section, 1800, originated in 1863 (Laws 1863-4, p. 110, see. 3) and appears under the caption of “Treasuries: County.” It seems that section 6759, supra, became a law in 1874, and therefore once was a later legislative utterance than section 1800', supra. But section 1800 was subsequently re-enacted as a revised bill, while section 6759 has simply been collated and thus brought forward by the revision committee. [Bryson v. Johnson County, 100 Mo. l. c. 85.] Therefore, it was held in the case just cited that section 1800 is in fact now a later legislative expression than section 6759; and so far as there is any conflict between the two, section 1800 has precedence. But it is manifest that plaintiff’s suit cannot be maintained under section 1800, for there was no contract entered' into with the county authorities or with any agent of the county lawfully authorized, and lawful authority is a condition precedent to the making of a contract under that section, even if the section be construed broad enough to include professional labor and medicine — a construction doubted. [See Woolfolk v. Randolph County, 83 Mo. 501.]

By section 8134, Revised Statutes 1899, it is pro-vi>_. i that: “In case any prisoner confined in the jail be sick, and, in the judgment of the jailer, needs a physician or medicine, said jailer shall procure the necessary medicine or medical attention, the costs of which shall be taxed and paid as other costs in criminal cases; or the county court may, in their discretion, employ a physician by the year, to attend said prisoners, and make such reasonable charge for his services and medicine, when required, to be taxed and collected as aforesaid.”

That section is authority for a jailer to procure the necessary medicine or medical attention to a sick prisoner in his custody. But it is expressly provided that the costs of such medical attention and medicines “shall be taxed and paid as other costs in criminal cases.” Costs in criminal cases are taxed by the proper officers, are certified by fee bills under the official oaths of prosecuting attorneys and judges of the various circuit courts, and are paid either by the county or by the State, as the case may be, on such certified fee bills. [See art. 15, chap. 16, R. S. 1899:] Manifestly plaintiff cannot recover under section 8134. That section further provides that the county court may employ a physician by the year; but plaintiff does not contend there was any such appointment.

Under no statute known to us can this suit be maintained, and the judgment is, therefore, reversed.

All concur.


author: VALLIANT, P. J.

text:
    TYGARD, Executor, v. HARTWELL, Appellant.
    Division One,
    May 29, 1907.
    1. CONVEYANCES: Obscure Deed. In construing a deed bearing on its face evidences of a lack of learning in tbe writer, tbe court will not strictly apply the technical meaning of technical words, but, recognizing its unskillful source, will aim to gather its dominant intention from the inartificial -terms used. Still the court must take the deed as it finds it; it cannot reconstruct it, or give it a meaning different from what appears on its face.

      2., —-: To James and His Children. The deed conveyed land to “James F. White, his children and assigns forever,” and three times repeated those words, but had no habendum clause. At that time James had two children living. Meld, first,' that the court cannot construe 1?he word “children” to mean heirs, for that would be to give the" word no effect, and to resort to conjecture as to what the grantor meant; second, it would be a strained construction to hold that the grantor intended to convey the land to James and his children as tenants in common; third, the deed does not create an estate in fee tail, because it uses no words of inheritance; fourth, the deed, according to the common law, conveyed a life estate to James, the fee remaining in the grantor, but the statute (see. .4590, R. S. 1899) gives it the effect it would have had at common law if words of inheritance had been used, that is, the fee simple titie went to James.
    3. -: Fee Tail: Words of Inheritance. Words of inheritance are still essential to the creation of an estate in fee tail. They are essential at common law, and the statute dispensing with the necessity of the word “heirs” or other words of inheritance, applies only to the creation of estates in fee simple. However, where the deed conveys a life estate and nothing more, and fails for lack of Words of inheritance to create a fee tail, the statute enlarges the life estate into a fee simple.
    4. -: Cotenancy: Unborn Child. Tinhorn children cannot be made tenants in common in an estate presently created. A deed cannot create an estate in cotenancy between a named person and his children now born and his children to be born.
    Appeal from Bates Circuit Court. — Hon. W. W. Graves, Judge.
    Affirmed,

      P. E. Eolcomb for appellant.
    (1) The deed made June 5, 1857, is to he construed in the light of the statutes of 1855, chapter 32, section 5, and similar statutes down to the present time. R. S. 1899, sec. 4592. Appellant contends that the words “children and assigns,” used in the deed, are words of procreation, intended to be used in that sense, and that the statutes above cited would vest a life estate only in James F. "White, remainder in fee to his children. Kinney v. Matthews, 69 Mo. 520; Bone v. Tyrrell, 113 Mo. 175; Reed v. Lane, 122 Mo. 314; Hunter v. Patterson, 142 Mo. 310; Clarkson v. Clarkson, 125 Mo. 381; Rawles v. Johns, 32 S. E. 451; Mason v. Ammon, 117 Pa. St. 127. Estates tail, how created. Farrar v. Christy, 24 Mo. 468. (2) The "White deed uses the word “children” instead of the word “heirs,” and it is evident from reading the whole deed that only a life estate-was vested in James F., the father, remainder in fee to the children, or at best the children were to have an equal interest with him in fee. The whole deed must be construed together, and so construing it it is evident that it was intended that the father should have a less estate than a fee, .clearly only a life estate. McCullock v. Holmes, 111 Mo. 445; Kinney v. Mathews, 69 Mo. 520; Waddell v. Waddell, 99 Mo. 338; Fanning v. Doan, 128 Mo. 323. If from the whole deed it is apparent that there was an intention to pass a less estate than a fee, such intention must govern. Davidson v. Manson, 146 Mo. 608; McCullock v. Holmes, 111 Mo. 448; Chew v. Kellar, 100 Mo. 362; Hunter v. Patterson, 142 Mo. 310; Lewis v. Pitman, 101 Mo-. 281; Mercier v. Land Co., 72 Mo. 494. ' The predominating idea in the "White deed appears to have been the children of James F. "White. Then the deed should1 be so construed as to vest an interest in them which courts will protect. Long v. Timms, 107 Mo. 519; Ringquist v. Young, 112 Mo. 25. (3) But if this deed cannot Ije construed as creating an estate tail, there certainly cannot he the least difficulty in construing it to he a deed to James F. White and his two children, making all three to he tenants in common of an equal fee in the land. The deed, in its essential clauses, is to him and his children and their assigns. In Riñes v. Mansfield, 96 Mo. 394, the conveyance was not to children and their assigns, hut to assigns; and this distinction was carefully noted hy Justice Norton on page 399; and, further, in the habendum clause, it was “unto said E., her heirs and assigns forever.” Not so in this White deed. The distinction is clear. Fanning v. Doan, 128 Mo. 323; Wad-dell v. Waddell, 991 Mo. 338; Ringquist v. Young, 112 Mo. 25.

      Francisco £ Clark for respondent.
    (1) We maintain that this deed does not come within the provisions of section 5 of chapter 32, Revised Statutes 1855 (R. S. 1899, sec. 4592) as is contended hy appellant, and that it falls within the provisions of section 2 of the same tíhapter (R. S. 1899, sec. 4590) and must he construed in accordance therewith. This section has come down to us from 1835 unchanged and is a landmark among our laws of construction. Under its provision the term “heirs,” or other words of inheritance, are no longer necessary to create a fee simple title, and every conveyance must pass all the estate of the grantor unless the intent to pass a less estate shall appear hy express terms or he necessarily implied in the terms of the grant. We maintain that there are no ‘ ‘ express terms ’ ’ in this deed that indicate an intention to pass a limited estate, and that there is nothing in the deed from which such an intention can he “necessarily implied.” And, hence, that if this, statute (sec. 4590) is to he given effect at all, this deed must he construed to pass the fee simple title. Mc-Cullock v. Haines, 111 Mo. 445. (2) It is apparent from an examination of the deed that the word “children” is used through mistake of the scrivener and that the word “heirs” was intended, and this intention of the parties should he given effect by this court. Riñes v. Mansfield, 96 Mo. 394; Green v. Sutton, 50 Mo. 192; Waddell v. Waddell, 99 Mo. 345; Martin v. Jones, 62 Ohio St. 525. (3) The word “heirs” is not necessary to a fee simple estate. The presence of the word adds nothing and its absence detracts nothing in this direction. Davidson v. Manson, 146 Mo. 608; Bean v. Kenmuir, 86 Mo. 671; Riñes v. Mansfield, 96 Mo'. 399. (4) This deed does not contain apt words for the creation of an estate tail. The words “heirs of the body” or their equivalent are and always have been essential. And they are used in every conveyance cited by appellant, or that can be found in this State, where a life estate has been sustained, except in a few cases where the grant is expressed to be for the “life” or for the “natural life” of the immediate grantee. Bone v. Tyrrell, 113 Mo. 175; Hunter v. Paterson, 142 Mo. 1. c. 313; McCulloch v. Holmes, 111 Mo. 447; Ringquist v. Young, 112 Mo. 30; Reed v. Lane, 122 Mo. 313; Utter v. Sidman, 170' Mo. 284; Clarkson v. Clarkson, 125 Mo. 381; Davidson v. Manson, 146 Mo. 608; Fanning v. Doan, 128 Mo. 323.
   VALLIANT, P. J.

Plaintiff sues to quiet title to certain land in Bates county to-wit: East one-half of southeast one-fourth of section 13, township 40, range 30, and southwest one-fourth of southwest one-fourth of section 18, township 40, range 29,120 acres. Defendant disclaims any title to the north one-half of the east one-half of the southeast one-fourth of section 13, but does claim fee simple title to an undivided half of the rest of the land, subject to the life estate of James F. White, now living.

Martin White is the common source of title; by deed executed June 5, 1857, he conveyed a title to the land to James P. White and this plaintiff now holds by mesne conveyances that title, whatever it may be.

James P. White had two children at the date of the deed, one of whom, Martin S. White, has conveyed whatever interest he had in the land to- the defendant. That interest is claimed to be an undivided half of the remainder in fee on the termination of what is claimed to be the estate for the life of James P. White.

The whole controversy is concentrated in the construction to be given to the above-mentioned deed from Martin White to James P. White; on the part of the plaintiff it is contended that the effect of that deed was to convey to James P. White a fee simple title;' on the part of the defendant the contention is that it created what by the common law hnd the Statute de donis would be a fee tail, which by virtue of oiir statute results in a life estate to James P1. White with remainder in fee to his children, or if not that, then the deed created a tenancy in common in fee to James P. White and his- children. The following is a copy of the deed in question:

“This indenture made and entered into the fifth day of June, eighteen hundred and fifty-seven, between Martin White of the first part and James P. White of the second part, both of Bates county, Missouri, witnesseth:
' “That the party of the first part has this day bargained and sold unto the party of the second part, and by these presents do bargain and sell unto the party of the second part, his children and assigns forever all of my interest in and to the following described lot or parcel of land situated, lying and being in Bates county, Missouri, as follows, to-wit: [describing the land in suit with other land], containing in all four hundred and forty acres, and have received in hand paid the sum of one thousand dollars, the receipt whereof is hereby acknowledged by the party of the first part do hereby sell and convey nnto James F. White, party of the second part, for the sum aforesaid, all my right and interest and title with all and singular thereunto belonging or any wise appertaining to the aforesaid land, and that the party of the first part have good right to sell and convey his title in the above described land unto the aforesaid parties of the second parts his children and their assigns forever and that the said Martin White, party of the first part will warrant and forever defend against the claims of himself, his-heirs and assigns forever, and against the lawful claims of any and all persons whomsoever unto the foregoing described land unto James F. White, his children and their assigns forever. In testimony whereof, I have hereunto set my name and fixed my seal the day and date above written.
‘ ‘ Martin White ( sear. ) ’ ’

The trial court construed the deed to be a conveyance of the land in fee simple to James F. White and accordingly rendered judgment that the title in fee was vested in the plaintiff for the use of the estate of Bran-ham Hill, that Martin S. White, the defendant’s grant- or, took no title under the deed and therefore defendant had no interest in the land. From that judgment the defendant appealed.

The deed is the product of a mind of little education in the science of conveyancing; its meaning is not clear. In construing a deed bearing on its face evidence of the lack of learning in the writer we should not be very strict in applying the technical meanings of technical words, but, recognizing its unskillful source, our aim should be to gather the dominant intention as best we may from the inartificial terms used. Nevertheless, after making all due allowances for the lack of skill, and applying the rules of construction with as much concession as possible, still we must take the deed as we find it, we cannot reconstruct it or give it an effect different from what appears on its face. This court has had its full share of cases requiring the interpretation of deeds of obscure meaning, as will appear by reference to the lists of cases cited in the briefs on both sides of this case. But after going through those cases we find not much to aid us in the interpretation of this deed, because this differs so materially from any of the deeds in those cases construed.

It is contended on the, part of the plaintiff that the word “children” which is used in three places in this deed is used as meaning heirs. But if an interpretation of the deed in plaintiff’s favor depended on construing the word children to mean heirs we thlnTr he would have a difficult position to maintain.'

In Rines v. Mansfield, 96 Mo. 394, the court construed the word “children” in the granting clause of a deed to mean heirs, but it did so for the reason that the habendum clause forced that construction.

In the deed before us there is no habendum clause nor is there anything in the deed to indicate that the word children therein used was intended to have any other than its common meaning. If words are so used in the deed as to have no effect a court cannot reconstruct the instrument so as to put into effect what it may conjecture was the purpose of the grantor.

It would be a very strained construction to say that it was the intention of the parties to this deed to convey the land to James F. White and his children as tenants in common. If such had been the intention the natural course would have been to have inserted the names of the two children then living in the granting clause of the deed as grantees. If it was the intention to include not only those then in being but those thereafter to be born, then the idea of a tenancy in common must be excluded because the unborn children could not .be made tenants in common in an estate presently created. [Kinney v. Mathews, 69 Mo. 520; Rines v. Mansfield, supra.]

Nor does the deed create an estate in fee tail, "because words of inheritance are not used. Words of inheritance were as essential at common law in the creation of an estate in fee tail, as they were in the creation of an estate in fee simple. The statute, section 4590, Revised Statutes 1899, dispensing with the necessity of using the word “heirs” or ether words of inheritance, applies only to the creation of estates, in fee simple. [Kinney v. Mathews, 69 Mo. 520.] Our statutes abolishing entails and the rule in Shelley’s ease, sections 4592 and 4594, Revised Statutes 1899', refer to common law estates. Blaekstone says: “As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word body, or some other words of procreation, are necessary to make it a fee tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance, or words of procreation, be omitted, albeit the others are inserted in the grant, this will not make an estate tail.' As, if the grant be to a man and the issue of his body, to a man and his seed, to a man and his children, or offspring; all of these are only estates for life, there wanting the words of inheritance.” [2 Black. Com., p. 115.]

This deed is exactly within the terms of the text just quoted, “to the man and his children,” and according to Blaekstone its common law effect was to create a life estate only; the words “and his children” in that connection mean nothing, they are words of procreation, but not words of inheritance, and the lawwriter says there must be both words of procreation and words of inheritance to create an estate tail.

There, are no words in the deed to signify a life estate and a remainder; therefore, independent of what is claimed by appellant to be words creating an estate in tail, there is no room for a contention that the deed created a remainder in the children.

Measured by the rules of the common law as above quoted this deed would convey only'a life estate to J ames F. White, the fee remaining in the grantor, but our statute (section 4590) comes into force and gives the deed the effect it would have had at common law if words of inheritance had been added. We construe the deed to convey the title to James F. White in fee simple.

The judgment is affirmed.

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