text:
    ELIZABETH E. BUFORD v. ROBERT GUSTAV GRUBER and CASPER WILLIAM GRUBER, Minors, and WALTER B. WADDELL and JOHN CHAMBERLAIN, Executors, Appellants.
    Division Two,
    November 23, 1909.
    1, WILL: Delusion. A delusion which incapacitates a person from making a will, is tke conception of tbe existence of something extravagant which has no existence whatever, but of which the person entertaining it is incapable of becoming permanently disabused by argument, reason or proof. Where the 'testator's aversion to a child is the result of an insane delusion, and his conduct in disinheriting her cannot be explained on any other ground, -his will should be set aside.

      2. -: --: Weight of Evidence. Where there is any competent evidence tending to show the insanity of the testator, in that- he possessed an insane delusion that his disinherited daughter was not his child, and that his will was the offspring of such delusion, the court cannot disturb the verdict of the jury finding that the paper was not his will. There being competent evidence to that effect, the court will not say the jury placed a wrong estimate upon the weight of the evidence.
    3. -: -: Range of Evidence. Where a charge of insanity is made against a testator, testimony to show the condition of his mind long prior to and closely approaching the time of the execution of his will, and shortly subsequent thereto, is competent to show the condition of his mind at the very moment of its execution.
    4. -: -: As to Legitimacy of Child. Where a father entertained the false delusion that his daughter was not his child, and that operated in the making of his will, whose only purpose was to disinherit her, and there is evidence that he labored under that delusion for some time and at the very time of making the will, a verdict setting aside the will, the instructions being without error, will be sustained on appeal.
    5. -: -: Continuance. Where an insane delusion is once shown to exist, the jury are justified, in the absence of a showing to the contrary, in finding that it continued down to the very time of the execution of the will, especially when that delusion is shown to have had its origin in constant and excessive intoxication, which itself continued to the time of the will’s execution and his death.
    Appeal from Lafayette Circuit Court . — Hon. Samuel Davis, Judge.
    Affirmed.

      Ii. C. Wallace and William Aull for appellants.
    (1) The court erred in overruling the demurrer to the evidence and in refusing to give a peremptory instruction directing the jury to return a verdict sustaining the will. The evidence clearly shows that the testator had sufficient capacity to make the will a.t the time he executed it. . Techenbrook v. McLaughlin, 209 Mo,. 540; Western v. Planson, 111 S. W. 49; Archambault v. Blanchard, 198 Mo. 384; Harvey v. Sullens ’ Heirs, 56 Mo. 372; South-worth v. Southworth, 173 Mo. 59; Couch v. Gentry, 113 Mo. 218; Hamon v. Hamon, 180 Mo. 685; Jackson v. Hardin, 83 Mo. 175; Schierbaum v. Schemme, 157 Mo. 1; Von de Veld v. Judy, 113 Mo. 315; Riggin v. Westminster College, 160 Mo. 579. (2) Neither courts nor juries can make wills for men and they ought to be careful in unmaking them. Jackson v. Hardin, 83 Mo. 185. (3) This court seems committed to the proposition that where there is a will there is not always a way to break it. Story v. Story, 188 Alo. 128; Wood v. Carpenter, 166 Mo. 165; Tibbe v. Kamp, 151 Mo. 515. (1) The law presumes that the testator was of sound mind and that the will expresses the purpose and intention of the testator. Jackson v. Hardin, 83 Mo. 175; Weston v. Hanson, 212 Mo. 218; Riggin v. Westminster College, 160 Mo. 579; Maddox v. Maddox, 111 Mo. 35; Carl v. Gabel, 120 Mo. 283; McPadin v. Catron, 138 Mo. 197; Pulbright v. Perry Co., 115 Mo. 132; Sehr v. Lindemann, 153 Mo. 276; Tibbe v. Kamp, 151 Alo. 515; Schierbaum v. Schemme, 157 Mo. 7. (5) A testator may if mentally competent dispose of his property as he sees fit. He may be capricious, harsh and even cruel in his scheme of disposition, and this fact will not invalidate the will. No testator is bound to act kindly or even justly or equitably in making his will. Weston v. Hanson, 212 Mo. 218; Catholic University v, O’Brien, 181 Mo. 68; McPadin v. Catron, 138' Mo. 197; Hughes v. Rader, 183 Mo. 630; Roberts v. Bartlet, 190 Mo. 680; Crowson v. Crowson, 172 Mo. 691; Chaplin, on Wills, p. 21; Hearth v. Zable, 17 S. W. 360 (Ky.). A testator may discriminate between children if he desires. Hughes v. Rader, 183 Mo. 630; Crowson v. Crowson, 172 Mo. 691; Porter v. Jones, 12 L. R. A. 161; Weston v. Hanson, 212 Mo. 218; Maddox v. Maddox, 111 Mo. 35; Wood v. Carpenter, 166 Mo. 165. (6) Even though a hard and confirmed drinker, frequently or even constantly intoxicated, yet if at a particular time in question lie was sufficiently free from the influence of liquor to know clearly what he was about and to otherwise satisfy the usual tests, proof of his habits would not invalidate the will. Chaplin on Wills, pp-. 20-21; Peek v. Cary, 27 N. Y. 9; In re Lewis’ Estate, 140 Pa.“ St. 179; Lee’s Case, 46- N. J. Eq. 193; Elkinton v. Brick, 46 N. J. Eq. 154; Appeal of Harmony Lodge, 127 Pa. St. 269; Frost v. Wheeler, 43 N. J. Eq. 573; In re Peck’s Will, 17 N. Y. Sup, 248; Yon de Yeld v. Judy, 143 Mo. 348; Schierbaum v. Schemme, 157 Mo. 1; Pierce v. Pierce, 38 .Mich. 412; 28- Am. and Eng. Ency. Law (2 Ed.), pp. 85 and 86. (7) There is no presumption of perpetual intoxication and consequent permanent deprivation of reason, and no such presumption arises from proof of frequent or habitual or excessive use of liquors. No one is intoxicated all the time, and he who alleges incompetency from such cause must prove that the testator was in fact so at the very time the will was-made. Chaplin on Wills, p. 21; Ayrey v. Hill, 2 Add. 206; Andress v. Weller, 2 Green .Ch. (N. J.) 608; Lee’s Case, 46 N. J. Eq. 193; Yon de Yeld v. Judy, 143 Mo. 348. (8) It devolves upon the party alleging a delusion to. prove the existence thereof and to show such existence at the time, of the making of the will and that the will is the product thereof. It must appear that the testator was subject to a delusion as to facts within his own observation and the existence of which he actually believed, which a rational mind from the use of his senses under the same circumstances would have known not to exist, and the delusion must have been not only the inducing cause, but an existing one a.t the time the will was made. Knapp v. Trust Co., 199' Mo. 660 ; Cutler v. Zollinger, 117 Mo. 92; Benoist v. Murrin, 58 Mo. 307; Appeal of Kimberly, 37 L. R. A. 261, 68 Conn. 428; Young v. Miller, 145 Ind. 652; Jones v. Collins, 94 Md. 403; Lee v. Scudder, 31 N. J. Eq. 633; Mullins v. Cottrell, 41 Miss. 291; Edwards v. Davis, 11 Ohio Dec. 876; 28 Am. and Eng. Ency. Law (2 Ed.), p. 96. (9) If the alleged delusion arose merely when drinking, the ground for assuming continuation fails and it must he affirmatively proved to have existed at the time of the making of the will. Von de Veld v. Judy, 143 Mo. 348; Chaplin on Wills, p. 21; Hix v. Whittemore, 4 Met. 545; Townsend v. Townsend, 7 Grill (Md.) 10; Stables v. Wellington, 58 Me. 453; Blake v. Rourke, 74 la. 519; Brown v. Word, 53 Md. 396.

      John E. Burden and Clarence Vivion for respondent.
    (1) Testamentary capacity means that the testator, at the time of the execution of his will, should have sufficient understanding and intelligence to transact his ordinary business affairs and to understand the nature and character of his property, and the persons to whom he is giving it. Knapp v. Trust Co., 199 Mo. 640. “The marked change in his social and business habits, mind and love and devotion for his children, are strong evidences of unsound mind.” Holton v. Cochran, 208 Mo. 418; Haviland v. Hayes, 37 N. Y. 25. Incapacity to make a will may be inferred by the jury from facts anterior and subsequent to its execution, where there is no evidence of such infirmity at the time of execution, and! the subscribing witnesses are uncontradieted. Irish v. Smith, 8 Serg. & Rawle 573; 11 Am. Dec. 648. The court, or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind; so that, if there be inevitable doubt left on this point from all the testimony, the will cannot he considered as proved. Norton v. Paxton, 110 Mo. 462. Direct proof of a single act manifesting insanity is of far more convincing weight to establish the mental disease than any number of interviews or observations, in which no such manifestation appears, can be to show the contrary. Bishop v. Hunt, 24 Mo. App. 376. There is a point at which repulsion and aversion are of themselves evidence of unsound mind. And there is a limit beyond which one feels that it ceases to be a question of harsh, unreasonable judgment of character, and that the repulsion which a parent exhibits toward one or more of his children must proceed from some mental defect in himself. It is so contrary to the whole current of human nature that a man should not only form a harsh judgment of his child, but that he should put that into practice, so as to do the child injury or deprive it of advantages which most men desire to confer upon their children. People v. Plubert, 63 Am. St. Rep. 89-90' (and notes). (2) (a) The correct principle is, that whenever a person imagines something extravagant to exist, which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane; and if his delusion relates, to his act, he is then incapable of making a will. Benoist v. Murrin, 58 Mo. 323; Knapp v. Trust Co., 199’ Mo. 640; Holton v. Cochran, 208 Mo. 314. (b) If a person persistently believes supposed facts which have no existence except in his perverted imagination, and are against all evidence and probability, he is so far as they are concerned under an insane delusion. If such delusion relate to persons who at the time would naturally have been the objects of his testamentary bounty, and the court or. jury can see that the disposing provisions of the will, were, or may have been caused or affected by the delusions, the instrument is not his will and cannot be sustained. Shaw’s Will, 2 Redf. (N. Y.) 107; Seamen’s Friend Society v. Hopper, 33 N. Y. 619: (c) The will of a person affected by insane delusions ought not to be admitted, if he has disinherited his family without cause or looked on his relations as enemies — has accused them of seeking to poison him or the like; in all such cases where the delusion exercises a fatal influence on the acts of the person affected, the condition of the testamentary power fails, the will of the party is no longer under the guidance of reason, and it becomes the creature of the insane delusion. Shaw’s Will, 2 Redf. (N. Y.) 107; People v. Hubert, 63 Am. St. Rep. 96 (notes); Thomas v. Carter, 170 Pa. St. 272, 50 Am. St. Rep. 770. (d) Partial insanity renders a will null and void, if it can be inferred that the will is founded on such partial insanity. It is only by effects that we can judge of the existence of the exciting cause, and if he be under a delusion, though there be but a partial insanity, yet if it be in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity. Benoist v. Murrin, 58 Mo. 324. (e) Where the existence of the delusion is shown, and where from it the inference is reasonable, that it did or might have dominated the testator in making his will, the question must be submitted to the jury, whether it did or did not, and they should be instructed that their finding should be against the will if they believe it to be the fruit of the insane delusion. People v. Hubert, 63 Am. St. Rep. 108. (f) The insane may conceal the delusion. Bishop v. Hunt, 24 Mo. App. 376; Oleavenger, Med. Jur., Insanity, pp. 22-69-70; Ray, Med. Jur., Insanity, sec. 181. (g) Where the delusion is as to the legitimacy of a child, and aversion towards the child follows, and the will disinherits the child, the probability and conclusion is that the will is the fruit of the delusion. People v. Hubert, 63 Am. St. Rep. 96 (notes); Cotton v. Ulmer, 45 Ala. 378. (h) Delusion and insanity are convertible terms. Delusion is the test of insanity. Where delusion is once shown to exist it is presumed to continue and the burden is on the proponent to show that delusion did not exist at the factum. Cleavenger, Med. Jur., Insanity, p. 282, sec. 6; pp. 257-486-488; Powlis v. Davidson, 6 Notes of Cases 461; Thornton v. Appleton, 29 Me. 298; Jenakes v. Smithfield, 2 R. I. 255; Shaw’s Will, 2 Redf. 126; Seamen’s Friend Society v. Hopper, 33 N. T. 619'; Jerry v. Townsend, 9 Md. 145. (3) The proceeding under the statute to contest the validity of a will being a'proceeding at law, this court will not go into the question of the weight of evidence. Appleby v. Brock, 76 Mo. 314; Moore v. McNulty, 164 Mo. 119; Roberts v. Bartlett, 190 Mo. 680. The jury are the judges of the credibility of the witnesses, although they may have made contradictory statements. Lamb v. Railroad, 147 Mo. 171; State v. Tate, 156 Mo. 119; State v. Nolle, 96 Mo. App. 524; State v. McKenzie, 177 Mo. 717.
   FOX, J.

This action was instituted by respondent, Elizabeth E. Buford, in the Lafayette Circuit Court, on June 21, 1904, against Robert Gustav Gruber and Casper William Gruber, minors, and Walter B. Waddell and John Chamberlain, executors, having as its purpose the contest of the last will and testament of Gustav Gruber, the father of Elizabeth E. Buford, Robert Gustav Gruber and Casper William Gruber.

It is charged in the petition filed by respondent that Gustav Gruber, on the 14th day of October, 1903, in form did sign a paper writing purporting to be his last will and testament, by which he gave to respondent, Elizabeth E. Buford, his daughter, one dollar, and to his two minor sons, Robert Gustav Gruber and Casper William Gruber, all the remainder of his estate. It was further alleged that at the time of making his will Gruber was, and for a long time prior thereto had been, afflicted with dipsomania, which had destroyed his mind and memory; that he was subject to and labored under the insane delusions that his daughter, the respondent, was not his child, and that his wife was unfaithful to her marriage vow. It is further alleged that the will in question was not executed by Gruber in sound mind and disposing memory, but that at the time of its execution and for a long time prior thereto, he was mentally incapable of making same and was devoid of testamentary capacity on account of said disease and said insane delusions, which insane delusions operated upon and controlled his mind and induced him to sign said paper and thereby to attempt to disinherit the respondent,

On the issue presented by the pleadings two trials were had. At both trials a jury found the paper writing proposed not to be the last will of Gustav Gruber. The first verdict was set aside by the learned trial judge because it was against the weight of the evidence, and the controlling question now before this court is whether the second verdict can be sustained.

As demonstrated by the instructions given, the only question submitted to the jury was whether or not at the time of the excution of the will in question, Gruber, the testator, was laboring under the insane delusion that his daughter was not his child and that his disinheritance of her was the result solely of such delusion.

Proponents having interposed proper demurrers at the close of respondent’s evidence, as well as at the close of all the evidence, and having saved proper exceptions to the action of the court in overruling said demurrers, it devolves upon this court to critically examine the evidence with a view of determining whether or not either of such demurrers should have been sustained. This will involve an extended statement of the facts.

Gustav Gruber married Mary M. Boulware, at Lexington, Missouri, sometime in 1880. Their married life was spent at that place. Gruber wa,s in the insurance business and was quite successful. At the dime of his death his property amounted in value to about fifteen thousand dollars. In 1884 the respondent, Elizabeth E. Buford {nee Gruber), was born. Casper William Gruber, one of the proponents, was born in 1888, and the other proponent, Robert Gustav Gruber, was born in 1895. Mrs. Gruber died in March, 1901. Up to-about the year 1899 the relations of Mr. Gruber’s family had been happy. He was prosperous and was affectionately devoted to his wife and children. To the respondent, his daughter, who was known as and called “Bessie” (and who will be so termed hereafter), he was especially devoted, and as between her and his two young boys he was partial to Bessie. Mrs. Gruber was an exemplary lady and had the respect and esteem of all their acquaintances as a refined and virtuous woman and an affectionate wife and mother. But testator had formed the habit of drinking intoxicating liquor and sometime during the year 1899' the habit had developed to such an extent that he became intoxicated nearly every day. At this time and continuing up to the time of the death of Mrs. Gruber in March, 1901, he invaribly returned home in the evening in an intoxicated state. The drinking habit evidently increased and he reached the point where when he returned home in the evening he acted like a maniac, cursed, swore, whooped, yelled, tried to imitate the voices of beasts, and, as the testimony shows, formed, without a reason, an intense aversion to his wife and his daughter Bessie. About eighteen months or two years before Mrs. Gruber died he became impressed with the notion that his wife had been untrue to him and that Bessie was not his child. This notion gradually formed in his mind as a fixed conviction, which his wife and others were unable to reason away. In the presence of his wife he would tell Bessie that she was not his child and he would tell his wife that Bessie was not his daughter. He would make these charges both when he was drunk and when he was sober, in the morning, at noon and in the evening, and continued to do so almost daily up to the time of Mrs. Gruber’s death. When Mrs. Gruber protested and remonstrated with him and tried to reason him out of his unfounded delusion he became very much excited, flew into a passion, raved and uttered oaths and imprecations. There is no question and it is conceded that Mrs. Gruber was a virtuous lady and a loyal, devoted and dutiful wife. It is further conceded that Bessie was his daughter and that there was no reason or foundation for the belief or delusion that she was not. Mr. Gruber’s habits of drinking and his intense aversion to Bessie continued to increase up to the time of the death of Mrs. Gruber. In the meantime Gruber was attending to his business which he contiuned to manage fairly well, although it fell off considerably on account of his intemperate habits. He kept bank and other accounts correctly. In short, the evidence shows that he continued to conduct his insurance business, but not with the same push and success as he had prior thereto.

Mrs. Gruber died early in the evening. Gruber had been gone that day as usual to his office. He came home shortly before her death. The scene that occurred at the death bed beggars description. He would not believe that she was dying, but insisted that she was hungry and forced potted ham into her mouth. After her death a few moments later he poured raw whisky into her mouth, claiming that she was not dead and that he possessed the hypnotic power to restore her to health. When the neighbor ladies who were present protested, he threatened to throw them out and became almost violent.

After the death of Mrs. Gruber, Bessie, who was then seventeen years, old, took charge as Mr. Gruber’s housekeeper and assumed the motherhood of her two little brothers. She was fondly devoted to them both and especially Robert, who was then only about six years old. She did all the cooking, mending, sewing and other house work for her father and brothers. But Mr. Gruber’s habits of becoming intoxicated continued after his wife’s death. His attitude towards Bessie did not change. He still harbored in his mind the conviction that she was not his child, .repeatedly told her so, and sometime during the summer of 1901 he drove her from his house, telling her that she was not his child and he did not want her there. He began before the death of his wife, and kept it up after her death, to tell Bessie that she would not get any of his property because she was not his child, and when Casper, her brother, remonstrated with him he became very angry and acted like a maniac, tearing his hair, wildly demonstrating, etc. Sometime after driving Bessie from home in the summer of 1901 he sent for her and had her come home. He treated her nicely for a few days and then began to treat her as before, only worse. He accused her of trying to poison him, would go into her room at night and abuse her while she lay in bed, order her not to lock her door, continued almost daily to tell her that she was not his daughter, that she would not get any of his property and would refuse to drink the coffee she made or eat the victuals she cooked. This conduct on his part continued until January 1,1902. "When, on his return that evening from his office, he found her preparing the evening meal, he threw his meat, cakes and other things Bessie was cooking out, and drove her away into a very cold night, without wraps and without a home to go to, ordering her never to return, and telling her at the time she was not his daughter and that he would see that she had trouble in getting any of his property. She never returned, but on the 9th of February, 1902, she was married to Mr. Buford. She met her father one time after that in Lexington, and when she spoke to him and addressed him as father, he denounced her as no daughter of his and refused to have anything to do with her.

The foregoing facts were testified to by the respondent, Elizabeth E. Buford, known as Bessie, one of the proponents, Casper, her brother, Belle Lewis and Hub Hayden, a couple of negro tenants wbo lived in tbe yard of Mr. Gruber and who were about tbe bouse every day, and George Parks, a neighbor. These persons saw more of Mr. Gruber, especially during tbe time be was drinking, than did tbe other witnesses wbo testified in tbe case.

After Bessie left home on January 1, 1902, Mr. Gruber made arrangements for his boys and placed them in school. He took up bis living quarters in rooms adjoining bis office. On tbe 14th day of October, 1903, Gustav Gruber made and executed a will, in tbe presence of J. Q. Plattenburg, Henry C. Wallace and H. W. B. Tevis, as witnesses, which will, omitting formal parts, is as follows:

“Item 1st. After tbe payments of my debts, including burial expenses, I do dispose of my property, both real and personal, in tbe following manner:
“To my daughter, Bessie E. Buford, I bequeath one dollar and direct my executors to pay such sum of one dollar to her in full, of her share of my estate.
“To my sons, Casper William Gruber and Eobert Gustav Gruber, I bequeath all tbe rest and residue of my property and estate, both real and personal.
“Item 2nd. I hereby nominate, constitute and appoint Walter B. Waddell and John Chamberlain as executors of this, my last will and testament.”

At tbe time of executing bis will testator was about fifty-five years old. After its execution be continued to use intoxicating liquor to a greater excess than before. He died in a hospital in Kansas City, Missouri, on April 5, 1904, presumably from tbe effects of tbe excessive use of intoxicating liquors.

Shortly after making tbe will, Gruber, upon becoming dissatisfied with tbe manner in which bis son was sweeping out bis room, told him that be was sweeping tbe same as Bessie did and was trying to run him out, then remarked, “I have her fixed now; I have made my will and cut her out. She is not my child and I have got everything settled,” Casper’s testimony was that continuing on up to a few days before his death, or the last time he saw him, whenever Bessie’s name-was mentioned he would fly into a passion and declare that she was not his daughter and that he was not going to give her any of his property. He made these statements to Casper before he went to Kansas City, and a few days afterward died.

George Parks, a neighbor, testified that he heard Gruber at home cursing, swearing and apparently abusing his family. That Gruber talked to him .about Bessie before and after she left, and stated that he was not going to give her anything; that she was not straight and was not his child.

Both Hub Hayden and Belle Lewis testified about the conduct and drinking habits of Gruber and his treatment of his family, especially his wife and daughter Bessie. Belle Lewis, a negro woman, who did the washing for the Gruber family and was at the house considerably, heard Gruber on many occasions before Mrs. Gruber died, tell her, Mrs. Gruber, that Bessie was not his daughter and that he did not intend to leave her any of his property. Also after the death of Mrs. Gruber she testified that she heard Gruber tell Bessie she was not his child and that she would never get anything; that he became infuriated about Bessie’s cooking, would throw the meat and vessels out the door and accuse Bessie of trying to poison him.

Casper Gruber, one of the proponents and brother of Bessie, also testified fully and freely about the conduct of his father, his drinking habits and his numerous denials of Bessie being his daughter, both before and after the death of Mrs. Gruber, and after Bessie left her home in January, 1902, as well as the numer-. ous declarations that she would get none of his property.

It was shown that after the death of Mrs. Gruber, Bessie desired to attend school and take music lessons, but that her father would not allow her to do so. Several of her friends, especially lady school teachers, intervened and tried to induce him to let her go to school. He would promise to do so but afterward would not allow her.

Altogether respondent introduced thirty-three witnesses, and outside of those above referred to, who knew most about his home and domestic life and of his treatment of his wife and Bessie, the other witnesses were his social friends and business associates, and they testified in a general way of his excessive habit of drinking. That during the latter part of his life he transacted but little business and was intoxicated most of the time. He was inclined to stand upon the streets and did not appear to want to talk with anyone, was quiet and morose; when he did talk his conversation was not connected and usually had no point to it. His condition from May to November, 1903, is best described by Robert Hicklin, an attorney at law, who had offices near the office of Mr. Gruber in the Commercial Bank Building at Lexington, from the spring of 1903 to November of that year. He says that he had known Mr. Gruber and that they had been friends for a long time before, and that previously he had been a quiet, successful business man; during 1903 when Mr. Hicklin would be in town he would be with Mr. Gruber more or less every day and converse with him; he stated that a decided change had come over him for the worse; that his health had become seriously impaired and broken down and that he was under the influence of liquor all the time; that he never saw him sober during the year 1903; says that Gruber did not converse anything at all as he did formerly; that he was of a retiring manner when he was not under the influence of whiskey; that he was formerly a quiet, gentlemanly man. When witness officed near him last time he would talk and undertake to engage in conversation, but there was absolutely nothing to his conversation; his talk was silly and disconnected, no point to it. This witness, together with some ten or twelve others, after describing his excessive drinking, his appearance and conduct, were of the opinion that he was not a. man of sound mind. On cross-examination this witness says that he apparently was a man broken down by excessive use of liquor.

The defendant introduced the subscribing witnesses to the will, who testified that Mr. Gruber signed the will in their presence, declaring it to be his last will and testament, and that he was of sound mind at the time, so far as they observed. Mr. Wallace, the attorney who wrote the will, in describing the circumstances under which the will was written, said: “He came in and said he was ready to have his will made. I drew it on the typewriter. I put the paper in the machine and began to write and asked him what he wanted in the will, how he wanted it to be made and he said he wanted his debts paid and that he wanted to give his property to his two little boys, Robert and Casper. That he did not want Bessie to have any of his property and he only intended to give her one dollar ; that he wanted it put in that way, that she was to have a dollar of his estate. He said the reason he was not going to give her anything was because she had run away and married against his will.” Mr. Wallace says that Mr. Gruber selected the executors, who were leading business men of Lexington.

The testimony of numerous leading business men of Lexington, among whom were presidents and cashiers of banks, school teachers, merchants, lawyers, druggists, etc., tended to show that Mr. Gruber, especially during his early married life, was an excellent business man, a fine penman and a man who kept his books in excellent shape and attended strictly to his business. While most of these witnesses concede that in his latter life he became addicted to excessive drinking and was very often intoxicated and unfit for business, yet Ms accounts with hanks and merchants and other business men were correctly kept, and that he had no business trouble of serious consequence. Nearly all of these witnesses were of the opinion that he was a man of sound mind and well fitted for business when he was not drinking. Some evidence introduced tended to show the declarations of Mr. Gruber that he disinherited his daughter because she was disobedient, would not go to school and married against his wishes; on the other hand, the recorder to whom the application was made for the license when Bessie was married, called upon Mr. Gruber for his consent and he neither gave nor withheld his consent, but expressed himself that he did not care what she did nor whom she married.

As this cause must eventually be determined upon the question as to whether or not there was evidence tending to show that testator, at the time of executing his will, was laboring under the insane delusion that Bessie was not his child and that such delusion prompted him to disinherit her, the above statement of facts sufficiently presents the record of the trial of this cause.

At the close of the evidence the court instructed the jury upon every phase of the case to which the testimony was applicable. We do not deem it essential to reproduce the instructions given, but will during the course of the opinion give them such attention as we deem necessary. The cause was then submitted to the jury and they returned their verdict as heretofore indicated, finding that the paper writing propounded as the last will of Gustave Gruber, deceased, was not the will of said Gustav Gruber, deceased.

Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. From the judgment entered in conformity to the verdict as returned by the jury the defendants in due time and proper form prosecuted this appeal to this court, and the record is now before us for consideration.

OPINION.

I.

The record discloses numerous objections and exceptions to the admission and rejection of testimony during the progress of the trial. The record in this cause is quite voluminous, embracing five or six hundred pages; however, we have examined in detail the preservation of the objections and exceptions to the admission and rejection of testimony and in our opinion the testimony as offered and introduced, to which objections were made, had a tendency to at least throw some light upon the issue presented by the pleadings, and the ruling upon that proposition must be adverse to the appellants.

II.

This brings us to the. consideration of the instructions given in this cause. Three instructions were given for plaintiff and nine for the defendants. Due exceptions were saved by defendants at the time to the giving of plaintiff’s instructions. In substance, the court instructed on the part of plaintiff, that an insane delusion is a conception originating spontaneously in the mind, without evidence of any kind to support it, which can be accounted for on no reasonable hypothesis, having no foundation in reality and springing from disease or a morbid condition of the mind, and the person laboring under same cannot be reasoned out of such conception; that whenever a person imagines something extravagant to exist which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane; that if the delusion relates to his child and the jury further believe that plaintiff was the child of Gustav Gruber, that he imagined that she was not his child, that there was no reason or foundation in fact for such conception, and that he was incapable of being reasoned ont of same, then said Gruber was possessed of an insane delusion as to Ms said child; that if the jury believed from the evidence that said will was the frmt or offspring of such delusion or false conception, then they would find for plaintiff, although they might believe that said Gruber was sane and rational upon other subjects and capable of transacting ordinary business. Again, that if the jury believed from the evidence at the time said Gruber executed the will he was laboring under an insane delusion as defined in the instructions and that such delusion affected the disposition of his property in regard to the plaintiff, and that it was the offspring or fruit of such delusion, then he was at the time without testamentary capacity.

At the request of the defendants the jury were instructed in substance, that if they believed from the evidence that at the very time Gruber signed said will he had sufficient understanding and intelligence to, and did know that he was disposing of his property by will, and the disposition he was making of his properly and to whom he was giving it, then he had sufficient mental capacity to make a will, and the finding would be for defendants, unless the plaintiff had shown by a preponderance of the evidence that at the very moment he executed the will he was laboring under the insane delusion that plaintiff was not his child, and that solely by reason of such delusion and belief at the very moment he signed such instrument and for no other reason, he did not give the plaintiff the portion of his estate he otherwise would have given her. The jury were further instructed that although they might find that Gruber possessed said insane delusion about his child when he was under the influence of intoxicating liquor, yet this would not be sufficient and they must further find that he entertained' such delusion when sober and that his will was the fruit or offspring of such delusion.

The determination of the correctness of the instructions will depend upon the state of the law concerning delusions or partial insanity. “A delusion, which might incapacitate a person from making a will is the conception of the existence of something extravagant which has no existence whatever, hut of which the person entertaining it is incapable of becoming permanently disabused by argument, reason or proof. . . . All delusions are not insane delusions. The difference between the two species is that one is the product of the reason and the other a figment of the imagination. Thus, on an issue as to- the insanity of testa,tor, the question is not whether a certain view of his was sound, but whether he imagined or conceived something to exist which did not in fact exist, and which no rational person, in the absence of evidence, would have believed to have existed. ... In order that a testator may comprehend the relations which he holds to those having claims upon him, no insane delusion should influence his, will. Unreasonable prejudice against relatives is not ordinarily a ground for invalidating a will, but it may be set aside where the testator’s aversion is the result of an insane delusion, and his conduct cannot be explained on any other ground. ’ ’ [2 Words and Phrases, pp. 1971-2-3.]

“And to invalidate a will it must appear that the testator was subject to a delusion, as to the facts within his own observation, in the existence of which he actually believed, which a rational man, from the use of his senses, under the same circumstances, would have known not to exist. To invalidate a will a delusion upon the part of the testator must have been not only the inducing cause of it, but also an existing one at the time the will was made.” [Knapp v. Trust Co., 199 Mo. l. c. 668.]

Insanity in the form of a delusion was exhaustively treated by Judge Wagner in the case of Benoist v.Murrin, 58 Mo. 307. The conclusion reached by Judge Wagner, after an examination of the authorities, was that “the correct principle is, that whenever a person imagines something extravagant to exist which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane; and if his delusion relates to his property, he is then incapable of making a will.” The case of Benoist v. Murrin has been followed and repeatedly affirmed by a long line of decisions in this State. The principle is also recognized in that case that a man may have excellent business capacity, manage his estate with skill and vigilance, and yet be incapable of making a will by reason of an insane delusion possessed by him which relates to and controls the disposition of his property.

Insanity, such as will render a person incapable of making a will, may be general or it may be partial. It may be termed monomania or a delusion, but the authorities agree in holding’, as embodied in the instructions given in this cause, that where a person imagines something extravagant to exist which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane, and if his delusion relates to his child and he imagines, believes or conceives that she is not his child, •'when there is no foundation for such conception, and being incapable of being reasoned out of same, then the testator would be possessed of an insane delusion as to his child, and if the will made is found to be the fruit or offspring of such false conception, then the •jury may be warranted' in finding against the paper writing proposed by proponents, although it may develop that the testator was sane and rational on other subjects and capable of transacting ordinary business.

The above principles seem to be well established as the law of this State, and so holding we are of the opinion that the instructions, taken as a whole, were fair and liberal to defendants, and clearly and tersely presented the law a.s applicable to the facts of this case. We are therefore fully convinced that the objections urged by appellants to the instructions given by the court are not well taken, therefore the action of the trial court in this respect must be sustained.

III.

Having found that the trial court committed no reversible error in the admission and rejection of testimony and in the declarations of law given the jury, we are now confronted with the proposition as to the sufficiency of the evidence developed upon the trial to authorize the submission of the cause to the jury.

This being an action at law the same rule applies as in other actions. If the evidence is conflicting this court will not undertake to reconcile it. If there is any competent evidence tending to show the insanity of Mr. Gruber in that he possessed an insane delusion that his daughter was not his child, and that the will in question was the fruit or offspring of such delusion, this court cannot disturb the verdict of the jury by undertaking to say that they placed an improper estimate upon the weight of evidence. [Knapp v. Trust Co., 199 Mo. l. c. 668, and authorities there cited.]

Therefore, the only question remaining for this court to determine is whether or not there is sufficient evidence disclosed by the record to authorize the submission of the cause to the jury by the trial court and to give support to the action of the court in overruling defendants’ demurrer interposed at the close of respondent’s testimony, as well as that asked at the close of all the testimony.

It will be observed that the testimony in this case took a wide, range. It began with the marrige of the testator to his wife in about the year 1880. It disclosed their family relations, especially the treatment of his family by Mr. Gruber from the time his first child, Bessie, was born, up to tbe time of tbe death of Mrs. Gruber in March, 1901, and continuing with that time up to tbe time of tbe death of Mr. Gruber in tbe early spring of 1904. His business habits as well as bis social relations were gone into from tbe time of bis marriage to tbe time of bis death. Such latitude of investigation was proper and was justified under tbe law.

Where a charge of insanity is made against a testator evidence is competent to show tbe condition of bis mind long prior to and closely approaching tbe time of the execution of tbe will, as well as tbe condition of bis mind shortly subsequent to its execution. Tbe purpose of such testimony is to indicate tbe state of bis mind at tbe very time of the execution of tbe will. Tbe condition of bis mind is tried as of that time. All such evidence is receivable for tbe purpose of indicating to tbe jury whether or not tbe testator at tbe time tbe will wa.s executed bad sufficient mental capacity to fill tbe requirements of tbe law. [Von De Veld v. Judy, 143 Mo. l. c. 363; Knapp, v. Trust Co., 199 Mo. 640; Holton v. Cochran, 208 Mo. l. c. 426.]

After carefully analyzing in detail tbe whole record of tbe evidence in this case, we have come to tbe conclusion that tbe verdict rendered by tbe jury ought to be sustained for tbe following reasons:

From about the year 1880, when Mr. Gruber married, up to about 1899, be lived a happy life with bis wife and children; be bad a prosperous business and accumulated property; be was affectionately devoted to bis family and tbe respondent, Bessie, was bis favorite. Tbe family stood high in tbe community where they lived and there was.never a breath of suspicion so far as tbe evidence shows against tbe marital loyalty of Mrs. Gruber. Sometime, presumably after tbe birth of bis children, Mr. Gruber began drinking and tbe habit grew upon him until it reached an excessive state. He then began regularly to come home in tbe evening from Ms office work in a state of intoxication, grew irritable, cross and fault-finding with Ms family, and especially Mrs. G-ruber and Ms daughter Bessie. About this time, without any reason whatever, so far as the evidence discloses, he conceived the false belief that Bessie was not his child, and, by innuendo at least, accused his wife of not being true to her marriage vows. The witnesses describe the first time that he made the charge that Bessie was not his cMld; he then continued nearly every day to make the same charge, and evidently formed a great aversion to his daughter Bessie. So far as the evidence shows he never after that treated her kindly and as a. daughter. Mrs. Gruber remonstrated and reasoned with Mm and so did his children and the old colored woman who lived in the yard, but instead- of listening to them he became insanely angry and raved like a madman. TMs conduct continued up to the time of the death of Mrs. Gruber in March, 1901. There is no doubt but that his habits of intoxication and his treatment of his wife and daughter hastened her death. After the death of Mrs. Gruber, passing by his unnatural conduct which occurred at her death bed, he continued to keep up his excessive habits of drinking and intoxication and his treatment of his daughter Bessie, instead of improving, grew worse and he continued repeatedly and often to accuse her of not being his daughter, and to tell her that she would not get any of his property. The evidence shows that Bessie was dutiful and obedient to her father and very solicitous for his welfare; that she kept house for Mr. Gruber and her two little brothers; that she Avas very much devoted to her brothers and did all for them and her father she possibly could. .There is no evidence showing that she was rebellious or disobedient or that she refused to go to school, outside of one or two indefinite statements that should have been made by Mr. Gruber. In the summer of 1901, without any cause, so far as disclosed by the evideuce, Mr. Gruber drove Bessie away from bis' bouse, telling ber tbat sbe was not bis child and to leave bis borne. Afterward, upon being sent for by bim, sbe returned and remained witb bim until January 1, 1902, but bis intemperate habits continued, bis treatment of Bessie was tbe same as before ;'be insisted tbat sbe was not bis child and that he would not leave her any property, although sbe and her brothers, especially tbe older one, Casper, tried to convince bim to tbe contraxy. Their borne life witb Bessie as housekeeper and foster mother of ber brothers terminated and ended on January 1, 1902, when be drove ber from bis bouse on a cold night, admonishing ber never to return or to darken bis door again, witb curses and imprecations and charging ber tbat sbe was not bis daughter and he would give ber none of bis property, at tbe same time telling ber to go and get married if sbe wanted to. Tbe following month sbe was married to Mr. Buford, ber present husband. Bessie saw ber father only once after that. Sometime during 1903, in tbe spring of tbe year, sbe met ber father in Lexington; be refused to recognize ber as bis daughter, told ber tbat she was not bis child, and refused to have a conversation witb ber.

Tbe foregoing outline of facts were testified to by those who were close to bim and saw bim every day, and who were in tbe most favorable position and bad tbe best opportunity of knowing and observing bis conduct and actions. Appellants introduced quite a number of witnesses — business men of good standing — who occasionally bad business transactions witb Mr. Gruber, who testified to bis good business qualifications and tbat, so far as they bad observed, be was a man of sound mind. They bad no opportunity to observe bis conduct at borne and bis treatment of bis wife and daughter. Possibly Mr. Hicklin was closer to Mr. Gruber and saw more of bim from tbe spring of 1903 to November, 1903, than any other person, except the sons of Mr. Gruber. He says that he was drunk about all the time, but while he was talkative he could not carry on a connected conversation, and there was no point to anything he said. Mr. Hicklin officed near him and saw him every day and had a better opportunity of observing his conduct during that time than any other outside witnesses who testified.

It is well to note the circumstances under which the will was made. It will be observed that the provisions of the will made no change in the statutory devolution of the property, except to disinherit his daughter. It is quite evident that the only object he had in making the will was to deprive Bessie of any benefit of his estate. It will also be observed from the testimony of Mr. Wallace, who wrote the will, that while he spoke of Robert and Casper as his two boys, he spoke of Mrs. Buford as Bessie and did not use the word daughter, telling Mr. Wallace that he did not want Bessie to have any of his property; that he only intended to give her one dollar and that he wanted it put in that way. While it is true that he did not tell Mr. Wallace that he was disinheriting Bessie because she was not his daughter, yet it is difficult, in view of all the facts proven, to conceive how the jury came to any other conclusion than that at the time of making the will he entertained the false belief and delusion that Bessie was not his daughter, and that he was impelled by that false notion to execute the will. At least we are of the opinion that the jury wa.s justified in reaching that conclusion by the evidence offered.. There can be no question but that for a time extending from about the year 1899 to January 1, 1902, Mr. Gruber entertained the fixed and false belief that Bessie was not his child, and! that there was ample evidence to justify the characterization of such belief as monomania or an insane delusion.

It is said in the case of State v. Lowe, 93 Mo. 547, that “the rule of law, as I understand it to be, is, that where insanity is the result of some,temporary cause, as a fit of sickness or the like, then no presumptions of continuity flow from such temporary cause; but, on the other hand, when you establish, as the evidence tended to do in this case, an insane condition of mind, existing and exhibiting its peculiarities for a long period of years, I incline to think that an instruction embodying the principle evidently intended to be contained in the one asked should have been given. . . . This habitual . . . state of insanity being shown to exist, its continued existence will be presumed, and the burden of establishing a subsequent lucid interval at the time of the act, either civil or criminal, being done, lies on him who asserts it.’

In State v. Wilner, 40 Wis. 304, where 'the circumstances tended to show insanity or delusion, it was held error to refuse an instruction which embodied the idea of the presumption of continuance of such delusion.

. In the case at bar the insane delusion having been shown to exist, taken in connection with the conduct of Mr. Gruber during the years 1902 and 1903, especially the condition of his. mind growing out of his habit of the excessive use of intoxicating liquor, as well as the facts surrounding the execution of the will, we think warranted the jury in finding that at the time and at the very moment when the will was executed Mr. Gruber was laboring under the insane delusion that respondent was not his child, and that the will in question wa,s the fruit or offspring of such delusion. So holding that the verdict rendered by the jury in this cause finding that the paper writing propounded as the last will and testament of Gustav Gruber was not his will, was justified by the evidence, and that the trial court acted correctly by submitting the cause to the jury upon proper instructions, the judgment of the trial court setting aside the will of Gustav Gruber, deceased, is affirmed, and it is so ordered..

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    Ex Parte DAVID EICHEL.
    Division Two,
    November 23, 1909.
    CONTEMPT: Refusal to Answer Question: Incrimination. The petitioner was committed to jail for refusing to answer this question propounded by the grand jury: “Did you ever make any bet with any persons other than Steve Pensa upon the result of any horse race to be run anywhere in this State, or without this State, at his place of business on Washington Avenue?” Held, that, having declared under oath to the court that he could not answer the question without incriminating himself, he was not guilty of pertinaciously refusing to answer a lawful question, and was not guilty of contempt, and is entitled to his discharge. ■
    Habeas Corpus.
    Petitioner discharged.

      T. J. Rowe, Thos. J. Route, Jr., and Henry Roioe for petitioner.

      Seebert G. Jones and Forrest G. Ferris for respondents.
   GANTT, P. J.

The petitioner was committed to the jail of the city of St. Louis for contempt of court in refusing to answer a certain question before the grand jury of said city. He was brought before the judge of Division Number Ten of the circuit court, and having been ordered to answer the question, and haying again refused to do so, was committed to the custody of the jailer until he should' answer said question. Thereupon he sued out a writ of habeas corpus in this court.

The question which he refused to answer was the following: “Did you ever make any bet with any persons other than one Steve Pensa upon the result of any horse race to be run anywhere in this State, or without the State, at his place of business on Washington Avenue?”

The petitioner answered that he could not answer this question without incriminating himself, and the question now presented is whether he was guilty of pertinaciously refusing to answer a lawful question. While counsel for the State has endeavored to draw a distinction between the facts of this ease and that of Ex parte Gauss, which has been heard and the opinion handed down at this sitting of the court, we have been unable to make any distinction in the principle which should govern in such a case. We think the witness was entitled to refuse to answer the question after he had disclosed under oath to the court that he could not do so without accusing himself of a crime.

For the reason given in Ex parte Gauss, post, p. 277, we think the commitment was wrongful and accordingly the prisoner is discharged.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    Ex Parte FLORENCE CORNWALL.
    Division Two,
    November 23, 1909.
    1. PAROLE: Insufficient. Where a defendant entered a plea of guilty to keeping a bawdy house and was sentenced to ninety days in jail, an order of the court granting her “a stay of execution upon condition that she remove from the" place she now occupies, and does not return thereto, and that she does not again violate the law,” is not a parole, but simply an ordinary stay of execution; and not being a parole, the court had no authority to revoke it.
    2. -:-: Execution. The court had no power to grant the stay of execution, nevertheless a revocation thereof by the court under the impression that it was a parole, after she had partly performed the judgment and at a subsequent term, and the rearrest of the defendant, were illegal.

      3. -: -: -: Habeas Corpus: Changing Judgment. Where defendant had pleaded guilty to keeping a bawdy-house, and been sentenced to jail for ninety days, and a stay of execution was entered upon condition, and upon information by the prosecuting attorney at a subsequent term that she had violated her parole, the stay was set aside, and execution ordered, and she applied for a writ of habeas corpus to the same court, the only question for consideration was the legality of the sheriff’s custody, and the court had no authority to set aside the original judgment, and enter a fine of $200, and order her to jail until the fine was paid; and the original judgment being erroneous and the attempted parole invalid, she was entitled to her discharge.
    4. JUDGMENT: Partly Complied With: New Judgment. The court has no power to set aside an erroneous judgment which has been partly complied with and substitute a new judgment in lieu thereof.
    5. -: Habeas Corpus: New Judgment. The court has no power, at a subsequent term, upon the application for a habeas corpus, to enter an entirely new judgment, on the ground that the original judgment, entered upon a plea of guilty and under which the petitioner is being held, was erroneous.
    6. -: -: -: Statutes. Sections 2720 and 3615, Revised Statutes 1899, providing that no prisoner shall be discharged on habeas corpus because the judgment “was erroneous as to time or place of imprisonment,” have no application where the original judgment imposed a jail sentence and the court undertakes to render an entirely new judgment imposing a fine.
    7. -: -: -: Hearing and Presence. A substantial right of an accused, in answering to a criminal charge, is to be present, not only during the progress of the trial, but when punishment is imposed; and the courts cannot, upon an application for a writ of habeas corpus, for the first time assess punishment against the petitioner.
    Habeas Corpus.
    Relator discharged.

      Sangree é Bohling and J. Hi Bowron for relator.
    (1) The criminal court of Pettis county, under the statutes, could only impose a fine for the offense charged. The jail sentence was unauthorized. R. ,S. 1899, sec. 2197. Likewise, the stay of execution granted relator was unauthorized. A stay of execution may be granted for ninety days after conviction, by defendant entering into a recognizance to surrender himself in execution. R. S. 1899, sec. 2695. Or a stay of execution may be granted when an appeal is taken. R. S. 1899, secs. 2698 and 2699. Or when a writ of error is sued out. R. S. 1899, sec. 2700. The judgment and stay of execution, although erroneous, were complied with by relator for the ninety days, and longer, and she was entitled to her discharge. An erroneous sentence, after it has been partly executed, cannot be revised by the court, and a new sentence imposed, even at the same term of court. Ex parte Lange, 18 Wall. 163; Ex parte Johnson, 46 Fed. 477. (2) The condition of the stay of execution could not extend beyond, or be performed after, the expiration of the term for which the relator was sentenced. Ex parte Prout, 86 Pac. 275; Woodward' v. Murdock, 124 Ind. 444. (3) After the November term of court, 1908, had elapsed, and the January and April terms, of 1909, intervened, the criminal court of Pettis county had no authority to set aside the stay of execution and order relator committed to jail under the judgment. Danforth v. Lowe, 53 Mo. 217; Warren v. Manwaring, 173 Mo. 37; State v. Riley, 219 Mo. 667. (4) There is nothing in the return that shows that relator had violated the conditions of the stay of execution, and it should not have been set aside. (5) Relator was entitled to a hearing on the question, whether she had violated the conditions of the stay of execution. State ex rel. O’Connor v. Wolfer, 53 Minn. 135', and cases there cited. The information the prosecuting attorney furnished the court that the relator had violated the stay of execution, was of no more force and effect than if the information had been furnished' by any private individual. Nor does the court find! that the relator had violated the conditions of the stay, but sets the stay aside on such information, regardless whether true or false. The information the prosecuting attorney furnished the court, was that relator, “is violating the terms of her parole, by keeping a disorderly house.” The court then ordered the parole set aside. She never had been paroled, she was granted a stay of execution. The words, “parole” and “stay of execution,” have well defined meanings in our criminal law, and this court, when a person’s liberty is involved, will not say, when a court of record which speaks by and through its records, used the words, “stay of execution,” meant “parole,’-’ and when the word “parole,” is used, that it meant “stay of execution.” The parole law is unconstitutional, being in conflict with section 8, article 5, of the Constitution of Missouri. The Governor alone has power to grant reprieves, commutations and pardons. Constitution of Missouri, art. 5, sec. 8; Constitutional Discharge of Convicts, 73 Yt. 414; Ex parte Parker, 106 Mo. 551; State v. Sloss, 25 Mo. 291; People v. Cummings, 88 Mich. 249. (6) The relator pleaded guilty with the understanding that she was to receive ninety days’ jail sentence. The court had no authority to set aside the jail sentence and impose a fine in lieu thereof. She refused to plead guilty and accept a fine, for the reason that such fine would be a lien on her real estate. State v. Stephens, 71 Mo. 535; State v. Kring, 71 Mo. 551. (7) A sentence that exceeds in its extent the punishment prescribed by law for the offense in question, is absolutely void and the prisoner is entitled to be discharged on habeas corpus. Ex parte Page, 49 Mo. 291; Ex parte Cox, 32 Pac. 197; Miller v. Snyder, 6 Ind. 1; People v. Iitscomb, 50' N. Y. 559;' State v. Norwood, 95 N. C. 578; Hanney v. State, 5 Wis. 521.

      Harvey D. Dow for respondents.
    The plea of guilty was voluntary, and properly received by the court. The statute under which petitioner was convicted, ’See. 2197, R. S. 1899, provides a fine not less than $200 nor exceeding $1,000. A jail sentence of 90 days is not responsive to the statute under which plea of guilty was entered, and therefore the prisoner was sentenced to punishment not allowed by law. Secs. 2197, 2649 and 2651, R. S. 1899; In re Bowman, 7 Mo. App. 569; State v. Ammons, 220 Mo. 6. The office of the writ of habeas corpus first sued out in the circuit court of Pettis county, has been so far changed into a writ 'of error as to require the court hearing the habeas corpus to resentence the prisoner in conformity with the law, where the prisoner has been sentenced to a punishment not allowed by law, or in excess of that allowed by law. Sec. 2720; R. S. 1899; Babb v. Brueve, 23 Mo. App. 604; Ex parte ■’Kenney, 105 Mo. 535; Ex parte Gray, 77 Mo. 160; Ex parte Cohen, 159 Mo. 662; State v. Nunley, 185 Mo. 102. Where there is an erroneous judgment and sentence, the court will enter proper judgment and sentence. Ex parte Kenney, 105 Mo. 535; Babb v. Brueve, 23 Mo. App. 604; State v. Musiman, 1Í2 Mo. App. 540; Carter v. Epasitine Co., 124 Mo. App. 530; State v. Biesemeyer, 136 Mo. App. 668. Where the judgment and sentence is one not allowed by law, and not prescribed in the statute for the court to make, the same may be set aside and the proper judgment entered, upon an application for discharge of prisoner by writ of habeas corpus. Sec. 2720, R. S. 1899; Babb v. Brueve, 23 Mo. App. 604; Ex parte Page, 49 Mo. 291; Coal Co. v. Lead & Zinc Co., 123 Mo. App. 249; Fisher v. Fisher, 114 Mo. App. 627; -1 Black on Judgments, sec. 307. The commitment under which the defendant was held at the time of the issuance of the original writ herein was regular and according to law. Secs. 2661 and 2684, R. S. 1899. The stay of execution shown by the record is not authorized by any statute. Such stays apply to cases specially mentioned in particular statutes, and this is not the class of cases mentioned. Secs. 2666, 2666, 2669 and 2672, R. S. 1899; State v. Iloekett, 129 Mo. App. 639.
   FOX, J.

This is an original proceeding pending in this court. On the 25th day of August, 1909, relator presented her petition to the Honorable Henry Lamm, one of the judges of the Supreme Court of this State, in chambers at Sedalia, Pettis county, Missouri, praying for the issuance of a writ of habeas corpus. The writ was issued and the prisoner brought before the judge forthwith, in accordance with the commands of the writ. Subsequently it was ordered that the return to this writ be set over until the October term, 1909, of the Supreme Court of Missouri, it being agreed that the petitioner should be released on bond. The bond was presented, approved and the prisoner released. Upon the meeting of Court In Banc at the October term, 1909, this proceeding was assigned to Division No. 2. The return was duly made by the sheriff and jailer of Pettis county, Missouri. Upon the return as made, the relator moved the court to discharge her from imprisonment, for the reason that no legal cause is shown for her imprisonment and restraint by the return made by the respondents to the writ of habeas corpus issued herein.

We deem it unnecessary, to burden the statement and opinion with a reproduction of the petition or the return of the sheriff and jailer of Pettis county to the writ issued upon the petition. There is- no dispute about the facts, and a statement of them will fully disclose the controverted questions involved in the' record before us.

At the November term, 1908, of the criminal court of Pettis county, Missouri, the petitioner was indicted by the grand jury for keeping a bawdy house. She employed counsel, Messrs. O. C. Kelly and E. C. White. It was first agreed between her counsel and! the prosecuting attorney that petitioner should plead guilty to the charge and a fine should be imposed upon her for $250; then a stay of execution should be granted her on condition that she should leave her home and should not return thereto, and that she should not again violate the law. The question was then raised that this fine would be a lien on her real property and she refused to plead' guilty under the arrangement. It was then agreed between her counsel and the prosecuting attorney that she should enter a plea of guilty to the indictment and a jail sentence should be imposed upon her of ninety days and a stay of execution granted on condition that she should leave her home and not again violate the law, which was concurred in by the court. With this understanding she.entered a. plea of guilty on the first day of December, 1908, in the criminal court of Pettis county, Missouri — the same being the November term, 1908, of said court. The judge of said court, in pursuance of said understanding had between her counsel and the prosecuting attorney, imposed a jail sentence of ninety days upon her, but granted her a stay of execution on condition that she remove from the place she then occupied and did riot return thereto and that she did not again violate the law. The petitioner then paid all the costs of the suit, abandoned her then home and did not return thereto until after the writ herein was granted. At the January and April terms of the criminal court of Pettis county, 1909, no steps were taken by the court in the cause. At the June term, 1909, of said court to wit, on the 10th day of July, 1909; the court, on the suggestion of the prosecuting attorney, made an entry of record in which it was recited that the petitioner had violated the terms of her parole by keeping a disorderly house. The court thereupon as the record recites, revoked her parole and ordered an execution issued. On the 20th day of August, 1909, petitioner was arrested and committed to the Pettis county jail. On the same day she. sued out a writ of habeas corpus before the Hon. Louis Hoffman, judge of the criminal court of Pettis county, returnable August 23-, 1909'. Upon the hearing on said writ, said court set aside the jail sentence imposed upon the petitioner upon the first day of December, 1908, and assessed against her a fine of $200 in lieu thereof, and ordered her in the custody of the jailer of said county until said fine was paid. She refused to pay said fine and was thereupon committed to jail. On the same day, she again presented her petition to the Hon. Louis Hoffman, judge of the circuit and criminal court of Pettis county, Missouri, for her release from jail. Her petition was denied, whereupon she applied by a similar writ to the Hon. Henry Lamm, judge of this court, where her petition was granted and writ issued and made returnable on the first day of the October term, 1909', of this court.

Among the exhibits filed with the petition we find Exhibit A, which discloses the rendition of the original judgment against the petitioner by the circuit court of Pettis county. This exhibit is as follows:

“Be it remembered that on the 1st day of December, 1908, the same being the 21st day of the regular term of the Pettis County Circuit Court, A. D. 1908, the following among other proceedings of the same day were had, made, and entered of record, to-wit:
“keeping a bawdy house.
“State of Missouri, Plaintiff, vs. Florence Cornwall, Defendant. No. 10744.
“Now at this day comes the prosecuting attorney, on the part of the State, and also comes the defendant in person, attended by her counsel, and the said defendant withdraws her plea of not guilty heretofore entered herein, and enters a plea of guilty to the crime of keeping a bawdy house charged in the indictment herein; and the court fixes her punishment for said offense at imprisonment in the county jail for ninety days.
“It is therefore sentenced, ordered and adjudged by the court that said defendant be remanded to the custody of the sheriff of this county, and by him be imprisoned in the county jail for a period of ninety days, and that the State have and recover of said, defendant the costs of this prosecution, and that execution issue accordingly. And now the court grants the defendant a stay of execution upon condition that she remove from the place she now occupies, and does not return thereto, and that she does not again violate the law.”

Exhibit B discloses, the order revoking what the prosecuting attorney and the court construed to be a parole to the petitioner. This exhibit is as follows :

“Be it remembered that on the 10th day of July, 1909, the same being the 15th day of the regular June term of the Pettis County Circuit Court, A. D. 1909; the following, among other proceedings of the same day were had, made and entered of record, to-wit:
“keeping a bawdy house.
“State of Missouri, Plaintiff, vs. Florence Cornwall, Defendant. No. 10744.
“Now at this day comes the prosecuting attorney, on the part of the State, and informs the court that the defendant, Florence Cornwall, is violating the terms of her parole by keeping a disorderly house, whereupon the court revokes her parole, and orders execution issued.”

Exhibit C discloses the action of the circuit court of Pettis county at the special August term, 1909, in the matter of the application of Florence Cornwall for a writ of habeas corpus. This exhibit is as follows :

“Be 'it remembered that on the 23rd day of August, 1909, the same being the 1st day of the special August term of the Pettis County Circuit Court, A. D. 1909, the following, among other proceedings of the same day were had, made and entered of record, to-wit:
“iN THE MATTER OF APPLICATION OF FLORENCE CORNWALL FOR WRIT OF HABEAS CORPUS.
“9833.
“Now this day this cause coming on to be heard and the court having seen the pleadings and heard the evidence doth find that the defendant on December 1st, 1908, entered a plea of guilty to this court upon a proper indictment preferred by the grand jurors of Pettis county, against this defendant, for keeping a bawdy house, and by agreement of the prosecuting attorney of Pettis county, and attorneys for the defendant in lieu of a fine, this court then and there sentenced defendant to imprisonment in the county jail for ninety days.
“It is ordered that said judgment so far as it relates to the punishment at jail imprisonment, be set aside, and that the defendant pay a fine on her said plea of guilty, of two hundred dollars.
“It is therefore ordered and adjudged by the court that the State of Missouri, to the use of the school fund of Pettis county, have and recover of the defendant, the sum of two hundred dollars, and that she be remanded to the care and custody of the jailer of Pettis county until said fine of two hundred dollars be paid, or until she is otherwise discharged according to law, also that the defendant pay the costs of this proceeding.”

The return of the sheriff and jailer shows that their custody and detention of the petitioner is predicated upon the last recited judgment of the court, marked Exhibit O.

This sufficiently indicates the nature and character of this proceeding to enable us to determine the legal propositions disclosed by the record.

.OPINION.

The record, as heretofore indicated, which is now before us, presents but one general legal proposition, that is, as to whether or not the sheriff and jailer have the legal custody of the petitioner by reason of the judgments of the circuit court of Pettis county, as heretofore indicated, and disclosed by the record before us.

After a most careful consideration of the proposition with which we are confronted respecting the restraint of the petitioner, we are clearly of the opinion that upon the disclosures of the récord the petitioner is being held illegally, without any authority of law and is entitled to be relieved from such restraint and to a full discharge from the custody of the sheriff and jailer.

"While it is true that the original judgment as rendered in this cause, fixing a jail sentence to be served by the petitioner, was erroneous and in fact void, and that the stay of execution as recited in such judgment was equally without force or vitality, yet it must not be. overlooked that the petitioner at least partly complied with the conditions upon which the court predicated its stay of the execution of that judgment. It will be noted that the judgment recites that the defendant should be imprisoned in the county jail for a period of ninety days, and that the State have and recover of the defendant the costs of this prosecution and that execution issue accordingly. Then follows the granting of the stay of execution upon condition that the petitioner remove from the place she then occupied, not to return thereto, and did not again violate the law.

The record in this cause discloses that the petitioner partly complied with the requirements of that judgment. She paid the costs of the criminal prosecution, abandoned her home as was required under the conditions of the stay of execution and did not return until after the writ herein was granted.

The prosecuting attorney and the order of the circuit court made at the June term, 1909, of the Pettis County Circuit Court seem to have recognized that a parole had been granted the petitioner in the original judgment of the November term, 1908. Manifestly this is a misconception of the provisions of what is commonly known as the parole law of this State. There was'no parole granted this petitioner in that judgment. There is an entire absence of any reference to any of the requirements embraced in the provisions of the parole law. There was no requirement on the part of the petitioner to appear before the court at any subsequent term with witnesses to make proof of her conduct, and if the recitations in the judgment at the November term, 1908, are to be construed as a parole, then we confess it would be a parole without the recitation of a single essential requirement under the law regulating the granting of paroles. We are clearly of the opinion that there was no parole in this case, and that the court in its judgment at the November term, - 1908, simply sought to grant an ordinary stay of execution, and while it had no power to grant the stay, yet by reason of such want of power it would not authorize the treatment of the recitals concerning such stay of execution as an ordinary parole under the provisions of the parole law of this State. It follows from this that the order of the court made at the June term, 1909, revoking the parole of the petitioner npon information communicated to the court by the prosecuting attorney, was without any authority of law. As heretofore stated, there was no parole to revoke; however, it is disclosed by the record that npon this pretended revocation there was an execution issued and the petitioner was taken into custody by the sheriff. Manifestly, the matter for the consideration before the court at its special term in August, 1909, upon the habeas corpus proceeding, was the legality or illegality of the custody of the sheriff by reason of the arrest made by the sheriff npon the revocation of what the court denominated a parole. In that proceeding, in our opinion, it is clear that the petitioner was entitled to her discharge from the custody of the sheriff; however, the circuit court of Pettis county, at its special term in August, 1909, in the consideration of the application of the petitioner for a writ of habeas corpus, sought to annul, and did in fact embrace in an order as set out in Exhibit C a setting aside, the judgment of the circuit court rendered at its November term, 1908, sentencing the prisoner to imprisonment in the county jail for ninety days, and substituted in lieu thereof the imposition of a fine for $200, followed by the usual recitation in the judgment for its recovery.

It will be noted that the judgment of the circuit court of Pettis county at its special August term, 1909, (rendered while considering an application for a. writ of habeas corpus, sought to annul and' set aside a judgment in a proceeding which had been rendered eight or nine months previous to the action of the court at its August term, 1900'. It is upon the judgment as rendered at the special term in August while the court had under consideration the application of the petitioner for a writ of habeas corpus, that the sheriff and jailer in their return predicate their right to retain the custody of the petitioner. We are unwilling to give our assent to or concur with the claim of this right by the respondents, the sheriff and jailer.

The judgment of the special August term, 1909, upon which the sheriff and jailer predicate the legality of the custody of the petitioner, cannot be maintained for two reasons:

First: Even if it be conceded that the judgment rendered at the November term, 1908, was erroneous, yet such judgment and the conditions imposed by it having been partly complied with, the circuit court had no power at a subsequent term to revise it and substitute therefor an entirely new judgment.

Second: The court had no power upon the hearing of an application under the Habeas Corpus Act to enter an entirely new judgment as was done in this case.

Upon the first proposition the general rule is well stated! in 12 Cyc. Law and Proc., p. 784. It is there stated that “after the term is passed at which the original sentence was imposed, the court has as a general rule no power to modify, amend, or revise it, particularly if the new punishment is in excess of the original sentence. Changes in the sentence, however, which do not alter the punishment but only'change' the time or place of its infliction may be made at a subsequent term.”

It was expressly ruled in Ex parte Lange, 18 Wall. 163, that where a court imposed both a fine and imprisonment it was erroneous for the reason that the statute only conferred power to punish by fine or imprisonment, and a part of such judgment, that is, the payment of the fine, having been complied with, such court has no power even during the same term to modify the judgment by imposing imprisonment instead of the former sentence.

In the 46th Fed. 477, the district attorney suggested during the consideration of the case that should the court come to the conclusion that the sentence was erroneous, the prisoner might be held for a new sentence in the district court. The court responded to such suggestion by saying: “But it was decided by .the Supreme Court in Ex parte Lange, 18 Wall. 163, that an erroneous sentence, after it has been partly executed, cannot be revised by the court and a new sentence imposed, even at the same term of the court.”

In this case the circuit court of Pettis county,' in its judgment at the November term, 1908, embraced a recovery of the costs of the prosecution, and this much of the judgment, about which there is no dispute, was fully satisfied. But in addition to this the court sought to stay the execution of the other part of the judgment, that is, the imprisonment in the county jail, and imposed certain conditions, which the record in this cause also discloses were partly complied with.

Upon the second proposition, in our opinion the court was absolutely without any power to enter the new judgment imposing a fine at its special term in August, 1909. This judgment, as disclosed by the record, was rendered upon the consideration of a proceeding under the Habeas Corpus Act instituted by the petitioner. Learned counsel for the sheriff and jailer predicate the legality and sufficiency of such judgment upon the provisions of section 2720, Revised Statutes 1899. This section provides that “no person shall be discharged under the provisions of the Habeas Corpus Act, nor shall any judgment be reversed or set aside by the Supreme Court, for the reason that the judgment by virtue of which such person is confined, or from which he has prosecuted- an appeal or writ of error, was erroneous as to time or place of imprisonment, but in such ease it shall be the duty of the court or officer hearing the case to sentence such person to the proper place of confinement, and for the correct length of time, from and after the date of the original-sentence, and to cause the officer or other person baving such prisoner in charge to convey him forthwith to such designated place of imprisonment.”

Section 3615, Revised Statutes 1899, also provides that “no person shall he entitled to the benefit of the provisions of this chapter (that is the chapter applicable to the writ of habeas corpus) for the reason that the judgment by virtue of which such person is confined, was erroneous as to time or place of imprisonment ; but in such cases it shall be the duty of the court or officer before whom such relief is sought to sentence such person to the proper place of confinement and for the correct length of time from and after the date of the original sentence, and to cause the officer or other person having such prisoner in charge to convey him forthwith to such designated place of imprisonment. ’ ’

Manifestly these two sections have no application to the case at bar a.s disclosed by the record before us, and fail to render any aid or support to the maintenance of the contention that the judgment as disclosed in Exhibit C, rendered at the special August term, 1909, is a valid judgment. It is apparent that these sections have application alone where a judgment of the circuit court is erroneous as to time or place of imprisonment. In other words, if the court should render a judgment sentencing a defendant to the penitentiary, when in fact upon the record he ought to be sent to the- Reform School, this statute would be applicable, because it is an error concerning the place of confinement; or if the court should sentence a defendant to the penitentiary for a length of time in excess of that authorized by law, that would also be an error concerning the length of time of the imprisonment, and petitioners seeking relief by the writ of habeas corpus would very properly and justly be confronted with the provisions of the sections of the statute to which reference has been made, and the court before whom such proceeding was pending would simply in obedience to the provisions of those sections fix the proper time and place of imprisonment, and order the officer to execute its judgment. But that is not this case. The circuit court of Pettis county in its judgment at the August term, 1909, while considering a proceeding under the Habeas Corpus Act, did not undertake to correct an error in a judgment which was erroneous simply as to time or place, but it entered an entirely new judgment which absolutely had no reference to imprisonment, nor to the correction of an erroneous judgment as to the time and place of such imprisonment. The judgment was entirely a new and different one, and sought to impose a punishment to which no reference had ever been made in the original judgment in this cause.

In the administration of the criminal laws of this State it is fundamental that one of the substantial rights of a defendant in answering to a criminal charge, is to be present, not only during the progress of the trial, but at the time of the imposition of the punishment. This is a right which the petitioner in this cause had the right to demand in the proceeding in the circuit court where the criminal charge was being considered, and in our opinion the law does not contemplate that the courts of this country may, upon the hearing of an application for a writ of habeas corpus, for the first time assess punishment .against the defendant. That was a matter within the province of the jurisdiction of the court which heard and disposed of the criminal charge. While the courts have ample power to correct errors respecting erroneous judgments as to time and place of imprisonment, as provided by the sections of the statute as heretofore indicated, yet we are unwilling to go to the extent of saying that for the first time in a proceeding under the Habeas Corpus Act the court may then assess the punishment that was never contemplated by the original judgment or to which no reference was made by such judgment.

Learned counsel for the sheriff and jailer, the respondents in this proceeding, asserts that where there is an erroneous judgment and sentence the court will, upon the consideration of a proceeding under the Habeas Corpus Act, enter a proper judgment and sentence. In support of that contention counsel directs our attention to numerous cases. We shall not undertake to review the cases to which reference is made, but deem it sufficient to say that we have carefully examined all the cases cited in the brief, and in our opinion they absolutely fail to support such contention. The cases of Ex parte Kenney, 105 Mo. 535; Ex parte Gray, 77 Mo. 160, Ex parte Cohen, 159 Mo. 662, and State v. Nunley, 185 Mo. 102, in no way conflict with the conclusions as herein indicated upon the proposition under consideration. All of those cases simply recognize the provisions of sections 2720 and 3615 as to the correction of erroneous judgments as to time and place of imprisonment, but none of them deal with the proposition which is now under consideration, and in no way support the contention that the court for the first time in the hearing of an application under the Habeas Corpus Act may impose a punishment and enter an entirely new and different judgment which has no reference whatever to time or place of imprisonment.

The record in this cause .discloses that there was no contemplation by counsel representing the State or the defendant in the original proceeding, where the criminal charge was being considered, of entering a judgment imposing as a penalty a fine; in fact it is emphasized by the disclosures of the record' that coun • sel, both for the State and the defendant in that proceeding, were willing that the imposition of a fine should be avoided. Upon this state of the record we are unwilling to hold that a judgment is valid, rendered in a habeas corpus proceeding, without an opportunity of the petitioner to he heard upon the .question of punishment in the proceeding ’where the court had jurisdiction and was authorized to try and dispose of the criminal charge against the petitioner. The rendition of the judgment in this cause in a habeas corpus proceeding, which for the first time assessed the punishment against the petitioner, in our opinion would he depriving the petitioner of one of her substantial rights, that is, to be heard in the court that had jurisdiction of and authority to dispose of the original charge against her.

We have indicated our views upon the propositions disclosed by this record. In our opinion the relator is entitled to her discharge, and it is so ordered.

All concur.